This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2492

 

Elizabeth L. Proudfoot,

Relator,

 

vs.

 

Wellbridge Club Management, Inc.,

Respondent,

 

Department of Employment and Economic Development,

Respondent.

 

Filed January 9, 2007

Affirmed

Shumaker, Judge

 

Department of Employment and Economic Development

File No. 11659 05

 

 

 

Elizabeth L. Proudfoot, 16829 89th Place North, Maple Grove, MN 55311 (pro se relator)

 

Wellbridge Club Management, Inc., 5525 Cedar Lake Road, St. Louis Park, MN 55416 (respondent employer)

 

Linda A. Holmes, Lee B. Nelson, Department of Employment and Economic Development, 332 Minnesota Street, Suite E200, St. Paul, MN 55101-1351 (for respondent department)

 

 

            Considered and decided by Shumaker, Presiding Judge; Minge, Judge; and Hudson, Judge

 

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

            Relator challenges the unemployment law judge’s decision disqualifying her from receiving unemployment benefits, arguing that the judge erred by finding that she quit without good reason caused by the employer, and that the judge conducted the hearing improperly.  Because we find that the unemployment law judge did not err by finding that relator quit her job without good reason caused by the employer, and that there was no impropriety in the hearing, we affirm.  

FACTS

            Relator Elizabeth Proudfoot worked as a massage therapist for respondent Wellbridge Club Management, Inc.  After receiving various work-related complaints about Proudfoot, two club managers, one male and one female, met with Proudfoot to discuss her job performance. 

            The female manager left the meeting several times to attend to other matters, leaving Proudfoot alone with the male manager.  Proudfoot alleges that the male manager sexually harassed her while they were alone by telling her to uncross her arms and legs, and to use her body to attract customers.  The male manager denied making those specific comments, but admitted to commenting on her defensive body language during the meeting.

            After another meeting and various phone conversations with club management, Proudfoot sent Wellbridge a letter ending her employment.  She stated in her letter that it was too difficult to return to Wellbridge because of the stress of the recent events.

            Proudfoot then applied for unemployment benefits, and a Minnesota Department of Employment and Economic Development (DEED) adjudicator found that she was qualified to receive benefits.  Wellbridge appealed and a hearing was held before an unemployment law judge (ULJ).  Although Wellbridge failed to provide a witness list before the hearing, the ULJ did not postpone the hearing because Proudfoot agreed to proceed. 

            Based on the evidence presented, the ULJ found that Proudfoot quit her employment without good reason caused by the employer, and was therefore not entitled to unemployment benefits.  Proudfoot filed a request for reconsideration, and the ULJ affirmed his decision.  This certiorari appeal followed. 

D E C I S I O N

This court will reverse a ULJ’s decision when it reflects an error of law, is “arbitrary or capricious,” or the findings are “unsupported by substantial evidence in view of the entire record.”  Minn. Stat. § 268.105, subd. 7(d) (Supp. 2005).[1]  Minnesota courts have defined “substantial evidence” as “(1) such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; (2) more than a scintilla of evidence; (3) more than some evidence; (4) more than any evidence; or (5) the evidence considered in its entirety.”  Minn. Ctr. for Envtl. Advocacy v. Minn. Pollution Control Agency, 644 N.W.2d 457, 466 (Minn. 2002).

This court defers to the ULJ’s determinations regarding witness credibility and conflicting evidence.  Skarhus v. Davanni’s, Inc., 721 N.W.2d 340, 344 (Minn. App. 2006).  “When the parties have presented conflicting evidence on the record, this court must defer to the [ULJ’s] ability to weigh the evidence; we may not weigh that evidence on review.”  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995). 

1.         Voluntary Quit

            Proudfoot argues that she was “constructively discharged” and did not quit.  The distinction is significant because an employee who voluntarily quits is generally disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 1 (2004).  A discharged employee, on the other hand, is only disqualified from receiving benefits if the discharge was for misconduct.  Minn. Stat. § 268.095, subd. 4(1) (2004).

A quit occurs “when the decision to end the employment was, at the time the employment ended, the employees.”  Minn. Stat. § 268.095, subd. 2(a) (2004).  A discharge occurs “when any words or actions by an employer would lead a reasonable employee to believe that the employer will no longer allow the employee to work for the employer in any capacity.”  Minn. Stat. § 268.095, subd. 5(a) (2004).

            The record fully supports the ULJ’s finding that Proudfoot quit her employment.  Wellbridge management never indicated to Proudfoot that she could not continue working at Wellbridge.  On the contrary, the communications between Wellbridge and Proudfoot dealt with expectations for her continued employment at the club.  Moreover, Proudfoot’s letter to Wellbridge and her testimony show that it was her decision not to return to work.  Therefore the record supports the ULJ’s decision that Proudfoot voluntarily quit.  The next issue is whether, despite quitting, Proudfoot is still entitled to receive unemployment benefits.

2.         Quit For Good Reason Caused By Employer

            Proudfoot argues that she was forced to quit because Wellbridge created a hostile work environment, subjected her to sexual harassment, and breached her employment contract.

An employee who voluntarily quits is still entitled to unemployment benefits if the decision to quit is the result of a good reason caused by the employer.  Minn. Stat. § 268.095, subd. 1(1).  Whether an employee quit for good reason caused by the employer is a question of law that this court reviews de novo.  Rootes v. Wal-Mart Assocs., Inc., 669 N.W.2d 416, 418 (Minn. App. 2003).  A good reason to quit is a reason directly related to employment, and for which the employer is responsible; it is adverse to the worker; and it is significant enough that it would compel an average, reasonable worker to quit and become unemployed rather than remain in the employment.  Minn. Stat. § 268.095, subd. 3(a) (2004). 

For example, an employee generally has good cause for quitting if the employer substantially reduces pay or unreasonably changes the terms of employment.  Rutten v. Rockie Int’l., Inc., 349 N.W.2d 334, 336 (Minn. App. 1984).  But an employee does not have a good reason to quit if there are irreconcilable differences with the employer, or if the employee is simply frustrated or dissatisfied with the working conditions.  Ryks v. Nieuwsma Livestock Equip., 410 N.W.2d 380, 382 (Minn. App. 1987).  “The standard for determining good cause is that standard of reasonableness as applied to the average man or woman, and not to the supersensitive.”  Erb v. Comm’r of Econ. Sec., 601 N.W.2d 716, 718 (Minn. App. 1999) (quotation omitted).

Proudfoot argues that Wellbridge created a hostile work environment during her meetings with management, forcing her to quit.  The evidence supports the ULJ’s finding that Wellbridge’s assessment of Proudfoot’s job performance does not constitute a good reason for quitting caused by the employer.  The record does not show that the managers acted unreasonably in addressing concerns over Proudfoot’s work.  Additionally, the criticism directed toward Proudfoot’s job performance, as well as comments about her attitude, would not compel an average, reasonable worker to quit and become unemployed rather than remain in the employment.  Minn. Stat. § 268.095, subd. 3(a).  Any frustration or dissatisfaction that Proudfoot felt over the comments is not a good reason to quit.  See Ryks, 410 N.W.2d at 382. 

Proudfoot also argues that a Wellbridge manager subjected her to sexual harassment and that other managers failed to adequately investigate her claims, forcing her to quit.  Sexual harassment qualifies as a good reason for quitting caused by the employer.  Minn. Stat. § 268.095, subd. 3(f) (2004).  The employer must have been aware, or should have been aware, of the sexual harassment, and failed to take timely and appropriate action.  Id.  The statute defines sexual harassment as “unwelcome sexual advances, requests for sexual favors, [or] sexually motivated physical contact . . . .”  Id.  Sexual harassment includes other conduct or communications of a sexual nature when the employment is conditioned upon the employee’s submission, the employee’s submission to or rejection of the harassment is the basis for decisions affecting employment, or the harassment substantially interferes with the employee’s work or creates an intimidating, hostile, or offensive working environment.  Id.

Whether one engaged in the actions underlying the sexual harassment claim is a question of fact.  Fore v. Health Dimensions, Inc., 509 N.W.2d 557, 560 (Minn. App. 1993).  But whether such actions constitute sexual harassment under the statute is a question of law.  Gradine v. Coll. of St. Scholastica, 426 N.W.2d 459, 463 (Minn. App. 1988), review denied (Minn. Aug. 24, 1988).  We review questions of law de novo.  Peppi v. Phyllis Wheatley Cmty. Ctr., 614 N.W.2d 750, 752 (Minn. App. 2000). 

The parties presented conflicting evidence regarding the circumstances surrounding the alleged sexual harassment.  Proudfoot testified that a manager, while alone with her during a meeting, told her to uncross her arms and legs, and to use her body to attract customers, which intimidated her.  The manager testified that he only commented on her arms being crossed as a sign of defensive attitude during the meeting, and that he never told her to uncross her legs or to use her body to attract customers.  The ULJ accepted the manager’s testimony as true, and we will not reweigh the conflicting evidence on review.  Whitehead, 529 N.W.2d at 352.  Furthermore, there is nothing in the record to suggest that the ULJ’s credibility determination was erroneous.

The ULJ found, and we agree, that the comments “did not rise to the level of sexual harassment as defined under the law . . . .”  The manager’s comments do not fit the statutory definition of sexual harassment in Minn. Stat. § 268.095, subd. 3(f), and therefore did not amount to a good cause for Proudfoot to quit caused by the employer.      

Proudfoot also argues that Wellbridge management failed to investigate her sexual-harassment claim, forcing her to quit.  The ULJ found that Wellbridge took immediate action to investigate the allegation when Proudfoot complained.  The record supports the ULJ’s finding, as the manager fully documented his time alone with Proudfoot, and the other managers’ statements indicate they investigated her claim.  Any frustration or dissatisfaction with Wellbridge’s conclusions regarding her claim is not a good cause for quitting caused by the employer.  See Ryks, 410 N.W.2d at 382.

Finally, Proudfoot argues that Wellbridge breached her employment contract by not paying her appropriately and violated privacy laws, forcing her to quit.  Proudfoot did not raise these issues during the hearing, and the ULJ did not address either claim in its decision.  Because Proudfoot did not raise these issues until this appeal, we need not address them here.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating that this court will generally not consider matters not argued and considered in the court below).

3.         Hearing Procedure

Proudfoot also argues that the ULJ erred during the hearing by not requiring a witness list, by considering hearsay, and by not accepting a performance review she offered into evidence.

A ULJ “shall not be bound by statutory and common law rules of evidence.  The rules of evidence may be used as a guide in a determination of the quality and priority of evidence offered.”  Minn. R. 3310.2922 (2005).  A ULJ may rely on hearsay evidence “if it is the type of evidence on which reasonable, prudent persons are accustomed to rely in the conduct of their serious affairs.”  Id.  See Vang v. A-1 Maint. Serv., 376 N.W.2d 479, 482 (Minn. App. 1985) (stating that hearsay may be sufficient to support ULJ’s decision).  A ULJ may also “exclude any evidence which is irrelevant, immaterial, unreliable, or unduly repetitious.”  Minn. R. 3310.2922.

Proudfoot argues that the ULJ erred by not requiring Wellbridge to produce a witness list after she made a written demand under Minn. R. 3310.2914, subd. 2.  But Proudfoot admitted that she would not have prepared differently had she received the list and she agreed to proceed with the hearing.  Therefore, Proudfoot has not shown that she was prejudiced as a result of not receiving the requested witness list, and the ULJ did not err by proceeding with the hearing.

Proudfoot also argues that the ULJ erred by accepting hearsay testimony from certain witnesses and should have required testimony of a manager absent from the hearing.  Proudfoot does not show that the ULJ relied on any hearsay evidence in reaching its decision.  But even if the ULJ relied on hearsay, it is acceptable under the rules if it is the type of evidence on which reasonable, prudent persons are accustomed to rely in the conduct of their serious affairs.  Minn. R. 3310.2922.  The managers’ testimony was under oath, and dealt with questions regarding Proudfoot’s employment—a topic that the managers knew about from their duties at Wellbridge.  This type of evidence is the type on which reasonable, prudent persons are accustomed to rely in the conduct of their serious affairs, and thus the ULJ did not err if it relied upon it. 

Finally, Proudfoot argues that the ULJ erred by not admitting her 2003 performance review into evidence for being “[t]oo late in time,” after admitting a document from 2000.  The performance review she attempted to admit into evidence did not relate to the issues of whether she quit or if she quit with good reason caused by the employer.  Because the performance review was irrelevant, the ULJ did not err by refusing to admit it into evidence.  Minn. R. 3310.2922.

            Affirmed.