Opinion
No. C5-98-1857.
Filed May 18, 1999.
Appeal from the Department of Economic Security, File No. 5606UC98.
Scott L. Anderson, (for relator)
Timothy J. Ewald, Gray, Plant, Mooty, Mooty Bennett, P.A., (for respondent ELO Engineering)
Kent E. Todd, Department of Economic Security, (for respondent commissioner)
Considered and decided by Crippen, Presiding Judge, Amundson, Judge, and Anderson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
Relator Sandra Dauer challenges the decision of the commissioner's representative that she was disqualified from receiving reemployment insurance benefits because she quit her job without good cause attributable to her employer, respondent ELO Engineering. Dauer contends she had good cause to quit because she was being subjected to sexual harassment by her supervisor and harassment by her co-workers. Because the commissioner's conclusion on the good-cause issue was adequately supported by findings of fact and the evidence of record, we affirm.
FACTS
ELO Engineering, Inc. employed relator as a paint inspector from late 1996 until May 1998. Relator, whose husband was also an ELO employee, began a romantic relationship with another co-worker, which became the subject of gossip in her workplace.
In her February 1998 annual performance review, relator complained to the plant manager about her supervisor's conduct, explaining that he was not acting in a professional manner and that he gossiped about her. The manager told relator he would speak to her supervisor at his annual review and did so, advising him to be more professional. In March, relator complained to her supervisor that her co-workers were gossiping about her. The supervisor allowed her to take the rest of the day off and told the employees to "mind [their] own business."
Relator resigned in May. She explained at the hearing that "it was becoming unbearable to go in every day" and referred to the plant manager's comment that he no longer believed relator or her boyfriend. She further explained that her supervisor sexually harassed her and the shop employees harassed her by talking about her and spreading rumors.
Relator applied for reemployment insurance benefits but was deemed disqualified by a claims adjudicator and a reemployment insurance judge. The commissioner's representative affirmed and determined that relator did not have good cause to quit.
DECISION
When reviewing a decision by the commissioner's representative, we are to use a narrow standard of review and accept findings of fact if the evidence reasonably tends to sustain them. White v. Metropolitan Med. Ctr. , 332 N.W.2d 25, 26 (Minn. 1983). The issue of whether an employee had good cause to quit is a question of law reviewed de novo. Biegner v. Bloomington Chrysler/Plymouth, Inc. , 426 N.W.2d 483, 485 (Minn.App. 1988).
A claimant who quits employment is disqualified from receiving benefits "unless the claimant quit the employment because of a good reason caused by the employer." Minn. Stat. § 268.09, subd. 1a(1) (Supp. 1997). The employee bears the burden of showing good cause. Zepp v. Arthur Treacher Fish Chips, Inc. , 272 N.W.2d 262, 263 (Minn. 1978).
An employee has good reason to quit when the employer is responsible for a significant condition directly related to the employment that would "compel an average reasonable worker to quit." Minn. Stat. § 268.09, subd. 9(a) (Supp. 1997). Sexual harassment creating a hostile work environment may provide a good reason to quit if the employer knew or should have known of the harassment and failed to take timely and appropriate action. Id. , subd. 9(b)(3); McNabb v. Cub Foods , 352 N.W.2d 378, 382 (Minn. 1984). Similarly, non-sexual harassment can provide good reason to quit if it creates an offensive environment and the employer knew or should have know of it and failed to take appropriate action. Tru-Stone Corp. v. Gutzkow , 400 N.W.2d 836, 838 (Minn.App. 1987).
Once the employer provides the employee with the expectation of assistance in the harassment, the burden is on the employee to apprise the employer of continuing facts of harassment. Larson v. Department of Econ. Sec. , 281 N.W.2d 667, 669 (Minn. 1979). Otherwise, it is reasonable for the employer to assume the problem was corrected. Id.
Relator contends that it was error to observe that she did not complain to management about sexual harassment. She cites her complaint to her manager that her supervisor was acting in an unprofessional manner. This report may have been inadequate. More important, the manager responded to relator's complaint that her supervisor was not acting in a professional manner, giving her the expectation of assistance and placing the burden on her to notify him if the problem continued.
A report of a lack of professionalism is not sufficient to alert management of sexual harassment. See Weaver v. Minnesota Valley Lab., Inc. , 470 N.W.2d 131, 134 (Minn. 1991) (holding complaint that supervisor not professional insufficient to constitute report of sexual harassment).
Likewise, when relator first reported to her supervisor that her co-workers were gossiping about her, he responded. She did not notify him of a continuing problem.
The commissioner's representative properly assessed the record: There was no evidence to show that relator meaningfully apprised the employer of continuing incidents of sexual harassment or that her employer treated her unreasonably. Affirmed.
Several recent United States Supreme Court cases provide a new standard for an employer's liability for a supervisor's sexual harassment; they coincide with our decision in this case. Faragher v. City of Boca Raton , 118 S.Ct. 2275, 2293 (1998); Burlington Indus., Inc. v. Ellerth , 118 S.Ct. 2257, 2270 (1998) (providing defense in sexual harassment action where plaintiff suffers no tangible employment actions, permitting employer to show (a) exercise of reasonable care in preventing and promptly correcting sexually harassing behavior and (b) plaintiff's unreasonable failure to take advantage of corrective opportunities); see McNabb , 352 N.W.2d at 382 (applying standard from sexual harassment action to reemployment insurance case).