Opinion
No. C6-02-934.
Filed February 11, 2003.
Appeal from the Department of Economic Security, File No. 883501.
Peter B. Knapp, William T. Armstrong (certified student attorney), William Mitchell Law Clinic, (for relator)
Linda L. Holstein, Kevin R. Coan, Parsinen Kaplan Rosberg Gotlieb, P.A., (for respondent employer)
Linda A. Holmes, Lee Nelson, Patricia Sturino (certified student attorney), Minnesota Department of Economic Security, (for respondent commissioner)
Considered and decided by Halbrooks, Presiding Judge, Schumacher, Judge, and Hudson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
Relator challenges the commissioner's representative's decision that she was not eligible for unemployment benefits, contending that she quit her job for a good reason attributable to the employer. Specifically, relator claims she quit her job because she was asked to notarize documents illegally. Because the employer corrected its improper-notarization practice before relator quit, we affirm.
FACTS
Relator Leisha Kruger (Kruger) began working for New Era Financial Group, Inc. (New Era) in May 1999 as an office manager. Kruger is a notary public, and part of her duties at New Era included notarizing documents. Kruger was the only notary public in the office. New Era's usual practice was to put the documents that needed to be notarized inside a folder and place the folder on Kruger's desk. Kruger would then notarize the documents. The documents for notarization already contained the affiant's signature, but the affiant had not signed the documents in Kruger's presence. Kruger notarized 15 to 20 documents in this manner during her time at New Era.
In October or November 1999, Kruger learned that a notary is required to keep a log of all documents notarized, and she informed New Era CEO Don Warner (Warner) of this requirement. There is no evidence in the record that Kruger ever established such a log. Sometime in May 2001, a legal secretary informed Kruger that there were possible legal consequences to notarizing a document without the affiant being present.
In April 2001, Warner and Kruger met to discuss her job performance. In particular, Warner had concerns about Kruger's clerical skills. In an effort to reorganize the office to more effectively utilize everyone's skills, Warner offered Kruger a position that required less clerical work. But Kruger rejected the offer, viewing the new position as a demotion. Warner and Kruger then agreed to reevaluate the situation in 90 days. If Kruger's clerical skills improved, things would remain as they were. But if Kruger's clerical skills had not improved, Kruger would either accept the new position or look for new employment.
Prior to the 90-day reevaluation, Warner and Kruger met again on May 14, 2001. In that meeting, Kruger complained that other co-workers were harassing her. Specifically, Kruger told Warner that someone had placed a dead mouse inside her desk, defaced her family picture, tampered with her computer, and put soap in her water bottle. Kruger also complained that two female co-workers had treated her badly. But Kruger did not provide Warner with any evidence to support her allegations; nor did Warner's subsequent investigation of her complaints corroborate any of her claims. Kruger later claimed that she had also been sexually harassed by a co-worker, but she did not mention this incident when she talked with Warner on May 14, 2001. Warner and Kruger agreed that Kruger would look for another job, but that she could remain at New Era until she secured other employment.
Later that same day, Warner brought Kruger a file containing a document to be notarized. Keeping with the standard practice at New Era, the document already contained the affiant's signature. When she found the document on her desk, Kruger told Warner that she would not notarize it because the affiant had not signed the document in her presence and she was "too uncomfortable with it." Later that same day, Warner again asked Kruger about notarizing the document, informing Kruger that no one else in the office was able to do so. But Kruger again refused and told Warner that she had taken the notary stamp home. Warner testified that he did not press Kruger further to notarize the document and told her that if she felt strongly about the issue, her decision not to notarize the document was "fine." But Warner later — unbeknownst to Kruger documented Kruger's refusal as "insubordination." Warner testified that he viewed Kruger's refusal as insubordination because he felt it was inappropriate for Kruger to decide that she would no longer notarize documents in accordance with the established office practice without giving him advance notice. Warner also testified that he was not aware that the notarization procedure at New Era was illegal because he had seen it handled this way in several law firms. There is no evidence in the record that Warner requested Kruger to notarize any documents after May 14, 2001.
On June 5, 2001, Kruger left Warner a voicemail resigning her position. Kruger then applied for unemployment benefits. The Department of Economic Security denied Kruger's application, finding that Kruger voluntarily quit her employment. Kruger appealed the decision, and a hearing was held on October 10, 2001. On November 29, 2001, the unemployment law judge affirmed the denial of Kruger's application for unemployment benefits. Kruger again appealed. On May 10, 2002, the commissioner's representative concluded that Kruger was disqualified from receiving unemployment benefits. This appeal followed.
DECISION 1. Notarization Practice
Kruger argues that New Era pressured her to notarize documents that the affiant had not signed in her presence. She contends that because this was an illegal practice, she had good reason to quit. We disagree.
On appeal, this court reviews the decision of the commissioner's representative, not the decision of the unemployment insurance judge. Kalberg v. Park Recreation Bd., 563 N.W.2d 275, 276 (Minn.App. 1997). Decisions of the commissioner's representative are accorded particular deference. Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995). The findings of the commissioner's representative must be viewed in the light most favorable to the decision, and if there is evidence reasonably tending to sustain them, they will not be disturbed. White v. Metro. Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983).
Whether an employee has quit employment for a good reason caused by the employer is a question of law reviewed de novo. Edward v. Sentinel Mgmt. Co., 611 N.W.2d 366, 367-68 (Minn.App. 2000), review denied (Minn. Aug. 15, 2000). An employee who quits without good reason caused by the employer is disqualified from receiving unemployment insurance benefits. Minn. Stat. § 268.095, subd. 1(1) (2002). A good reason caused by the employer is one "that is directly related to the employment and for which the employer is responsible," is "significant," and "would compel an average, reasonable worker to quit and become unemployed rather than remaining in the employment." Minn. Stat. § 268.095, subd. 3(a)(1), (2) (2002). The employee has the burden to show that he or she quit employment for a good cause. Polley v. Gopher Bearing Co., 478 N.W.2d 775, 777 (Minn.App. 1991), review denied (Minn. Jan. 30, 1992).
Illegal conduct by an employer may constitute good reason for an employee to quit his or her employment. See Hawthorne v. Universal Studios, Inc., 432 N.W.2d 759, 762 (Minn.App. 1988) (employee would have good reason to quit if separation from employer was based on employer's violation of overtime laws). An employee who is instructed to engage in illegal and immoral conduct has good cause to quit but he or she must first give sufficient notice of his or her objections to the employer. See Burtman v. Dealers Disc. Supply, 347 N.W.2d 292, 294 (Minn.App. 1984) (noting that employer's insistence on sales tactics repugnant to the employee would be good cause attributable to the employer if employee had given sufficient notice of his objections to the employer), review denied (Minn. Apr. 24, 1984). Notice of objection to the requested illegal activity is required in order to give the employer an opportunity to correct the situation. See Larson v. Dep't of Econ. Sec., 281 N.W.2d 667, 669 (Minn. 1979) (stating that janitor had duty to inform his employer of continuing abuse he experienced from co-workers in order to allow employer an opportunity to correct the situation and, in absence of such information, employer could not be charged with having caused janitor's unemployment).
On May 14, 2001, pursuant to New Era's standard practice, Warner requested that Kruger notarize a document that already contained the affiant's signature but had not been signed in Kruger's presence. On this occasion, Kruger refused, for the first time, to notarize the document because she had recently been informed that this practice was illegal. Notarization of a document by a notary that was not signed by the affiant in the notary's presence violates Minn. Stat. § 359.085 (2002). Warner testified that until this point he was not aware that New Era's notarization practice was illegal. He believed that in the brokerage business it was a common practice to notarize a document if the client's signature was on file.
Section 359.085, subdivision 3 provides, in relevant part:
Witnessing or attesting signatures. In witnessing or attesting a signature, the notarial officer must determine, either from personal knowledge or from satisfactory evidence, that the signature is that of the person appearing before the officer and named in the document.
The commissioner's representative found that after May 14, 2001, New Era did not request that Kruger notarize a document without the affiant being present. The record supports this finding. First, by May 14, 2001, Kruger no longer had her notary stamp in the office and had so informed Warner. Second, Kruger makes no claim that after that date, she was asked to notarize any additional documents. The record demonstrates that Kruger provided Warner with sufficient notice of her objection to the illegal notarization practice. But the evidence also supports the commissioner's representative's finding that New Era did not ask Kruger to notarize documents illegally after May 14, 2001, and that, therefore, Kruger did not quit her job in June for good cause attributable to the employer. We will not disturb this determination.
Kruger argues that even if New Era did not request that she notarize additional documents after May 14, 2001, this fact does not defeat her claim. She relies on Knutson v. DJM Transp., Inc., 413 N.W.2d 598 (Minn.App. 1987). In Knutson, the employer made unauthorized deductions from the employee's paycheck, in violation of a wage-deduction statute that authorized such action only if the employee agreed to the deduction. Id. at 601. This court concluded that the employer's violation of the statute constituted good cause for the employee to quit. Id. The court noted that although the employer had not requested that the employee violate the law, it was sufficient that the employer itself had violated the law, and that the employee had complained before he quit. Id. Kruger argues that under Knutson, it is irrelevant that New Era no longer asked her to engage in the illegal practice; because New Era continued to notarize documents illegally, she had good reason to quit attributable to her employer.
Knutson, however, is factually distinguishable. In Knutson, the employer continued the illegal wage deductions even after the employee objected. Here, Kruger notified Warner on May 14, 2001, that she would no longer continue to engage in the illegal notarization practice. But the record fails to support Kruger's contention that after May 14, 2001, New Era continued to notarize documents when the affiant was not present. Kruger also argues that because her initial concern about New Era's failure to maintain a notarization log went unaddressed, and because New Era considered her refusal on May 14, 2001, to be insubordination, New Era had no intention of halting its illegal notarization practice. But the creation and maintenance of the notary log was presumably Kruger's responsibility as the notary. More importantly, Kruger's contentions are speculative because there is no evidence that New Era continued to notarize documents illegally once it was put on notice that its practice violated state law.
Because New Era discontinued requesting Kruger to notarize documents without the affiant being present after she notified the company that she objected to the illegal practice, New Era corrected the situation. We conclude that Kruger did not have good reason to quit attributable to New Era's notarization practice.
2. Harassment Claims
Next, Kruger contends that she had good reason to quit attributable to New Era even if factors in addition to the employer's illegal notarization practice contributed to her decision to quit. Minnesota case law supports Kruger's assertion that a good reason attributable to the employer need not be the sole reason for termination. Burtman, 347 N.W.2d at 294. In her brief, Kruger makes a passing comment that while employed at New Era she was harassed by two female co-workers and that she encountered inappropriate sexual comments and other demeaning acts that may have factored into her decision to quit. But Kruger does not directly argue that these other factors constituted a separate basis to claim that she quit with good reason attributable to New Era. If this is Kruger's argument, it has not been sufficiently briefed. Issues not briefed are deemed waived on appeal. State v. Grecinger, 569 N.W.2d 189, 193 n. 8 (Minn. 1997); Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982). Therefore, we decline to review her harassment claims.
Even if we were to consider Kruger's harassment claims, we would give deference to the commissioner's representative's findings that the evidence does not support these claims.
3. Public Policy Implications
Lastly, Kruger argues she should not be punished for adhering to her legal and ethical obligations as a notary public.
We have previously considered the public-policy implications in a denial of unemployment benefits. In Parnell v. River Bend Carriers, Inc., 484 N.W.2d 442 (Minn.App. 1992), we reversed a denial of unemployment benefits to a truck driver who quit because of excessive hours, but who had not complained about the long hours to his employer prior to quitting. Id. at 444. The employer also required the employee to falsify driver logs in violation of federal trucking laws. Id. at 443. We concluded that the overriding public policy involved in protecting the public on our highways precluded application of the requirement under Larson and Burtman that the employee must give notice to the employer of his objections prior to quitting . Id. at 445.
Unlike Parnell, this is a not case where an exception to the unemployment-insurance laws should be made in the interest of public policy. We agree that there is a public interest in the validity of notarized documents. But for Kruger's argument to have merit, she had to demonstrate that she quit under pressure from New Era to notarize documents illegally and, as a result of that decision, was denied unemployment benefits. The record fails to support her argument. There is no evidence in the record that New Era continued to request Kruger to notarize documents illegally once she informed New Era of her objection on May 14, 2001.