Filed March 30, 1999.
Appeal from the Department of Economic Security, File No. 5560 UC98.
Bonnie Vendsel, (pro se relator)
Kent E. Todd, Minnesota Department of Economic Security, (for respondent Commissioner of Economic Security)
Minnesota Correctional Facility, ATTN: Sharon Harris, (respondent employer)
Considered and decided by Randall, Presiding Judge, Harten, Judge, and Shumaker, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
Relator challenges the commissioner's representative's decision denying her reemployment benefits. Relator asserts that she quit employment because of a good reason attributable to her employer and/or due to a serious illness. We affirm.
Relator Bonnie Vendsel was employed by respondent Minnesota Correctional Facility (MCF) as a corrections program therapist in Lino Lakes from April 1995 to June 1998. In a letter dated June 18, 1998, Vendsel resigned her position effective June 22, 1998, because of "continued retaliation and hostility in the workplace," which "caused [her] distress emotionally and physically."
In 1997, Vendsel filed suit against MCF and alleged (a) "hostility, gossip, intimidation, and infliction of emotional distress"; (b) failure to promote her; (c) defamation; (d) sexual discrimination; (e) violation of Minn. Stat. § 363.03, subd. 7 (1996), by retaliating against her for filing charges; and (f) violation of Minn. Stat. § 13.04, subd. 4 (1996), by failing to remove certain information from her personnel file. In November 1997, Vendsel entered into a settlement agreement with MCF. As a condition of the settlement, Vendsel was permitted to take an educational leave from employment. She was on educational leave from January 5, 1998, through May 4, 1998.
When Vendsel returned from leave, her supervisor, Colette Morse, gave her a letter of expectations addressing certain performance issues. On May 11, Vendsel overheard a coworker tell another coworker, "[T]he b-tch is back." Vendsel testified that she believed this coworker was also making comments about her work to Morse. Vendsel contacted the human resources director, Sharon Harris, on or about May 17, but Harris informed Vendsel that she would be unable to meet with her for a couple of weeks. Vendsel brought her concerns to Dr. James Kaul, Morse's supervisor, and on May 19 or 20 she met with Dr. Kaul and Morse. Vendsel was told to adhere to the letter of expectations and to bring her concerns about her coworkers to Morse's attention.
Vendsel was absent for medical reasons from May 26 through June 19. She complained of stress-related neck pain, headaches, irritable bowel syndrome, and depression. According to Vendsel, she sent MCF a letter dated June 10, requesting a transfer to another facility. MCF did not respond to this request, and MCF's representative testified that she had never seen the letter.
On June 16, Vendsel's chiropractor, Dr. Jane Steffen, informed MCF that Vendsel could return to work on June 22. Steffen suggested to Vendsel, however, that if Vendsel's employment bothered her so much, perhaps she should look for different employment. Steffen also informed Vendsel that taking more time off would probably not be a permanent solution. Vendsel resigned on June 18, effective June 22.
The Department of Economic Security determined that Vendsel was disqualified from receiving reemployment insurance benefits because she voluntarily terminated employment with MCF without good reason attributable to MCF. Vendsel appealed this disqualification, and an evidentiary hearing was held before a reemployment judge. The judge reversed the initial determination, concluding that Vendsel terminated her employment because of a serious illness and that Vendsel made reasonable efforts to retain her position. MCF appealed, and a commissioner's representative reversed the reemployment judge's determination. The commissioner's representative determined that Vendsel quit employment without good reason attributable to MCF and also determined that Vendsel did not have a serious illness. Vendsel petitioned this court for writ of certiorari.
A reviewing court will consider the commissioner's representative's findings in the light most favorable to the decision; the findings will not be disturbed if the evidence reasonably supports them. White v. Metropolitan Med. Ctr. , 332 N.W.2d 25, 26 (Minn. 1983). Whether a claimant is properly disqualified from receiving reemployment insurance benefits is a legal question. Markel v. City of Circle Pines , 479 N.W.2d 382, 384 (Minn. 1992). We review legal questions de novo. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n , 358 N.W.2d 639, 642 (Minn. 1984).
A claimant who quits employment is disqualified from receiving reemployment benefits
(1) unless the claimant quit the employment because of a good reason caused by the employer; * * *
(6) unless the claimant quit the employment because the claimant's serious illness made it medically necessary that the claimant quit, provided that the claimant made reasonable efforts to remain in that employment in spite of the serious illness.
Minn. Stat. § 268.095, subd. 1 (1998).
The parties agree that Vendsel voluntarily terminated her employment with MCF. Vendsel asserts that she quit because of a good reason caused by MCF and/or that she had a serious illness and made reasonable efforts to retain her employment with MCF despite her illness.
I. Good Reason
The burden is on the employee to prove that his or her resignation was based on good cause attributable to the employer. Trego v. Hennepin County Family Day Care Ass'n , 409 N.W.2d 23, 26 (Minn.App. 1987).
A good reason caused by the employer for quitting is a reason:
(1) that is directly related to the employment and for which the employer is responsible; and
(2) that is significant and would compel an average, reasonable worker to quit.
Minn. Stat. § 268.095, subd. 3(a) (1998).
Good cause to quit is not established when an employee has irreconcilable differences with his employer or with others at work or when an employee is "`simply frustrated or dissatisfied with his working conditions.'" Trego , 409 N.W.2d at 26 (quoting Portz v. Pipestone Skelgas , 397 N.W.2d 12, 14 (Minn.App. 1986) (citations omitted)). An employee may establish good cause attributable to the employer if the employee informs the employer that he or she is being harassed and the employer is given an opportunity to correct the problem. Tru-Stone Corp. v. Gutzkow , 400 N.W.2d 836, 838 (Minn.App. 1987). Failure of an employer to timely discipline employees for discriminatory practices is evidence of the employer's acquiescence. McNabb v. Cub Foods , 352 N.W.2d 378, 384 (Minn. 1984).
Vendsel testified that she quit her employment with MCF because of a pattern of harassment. It is imperative that an employer receives notice of harassing comments before an employee can support his burden of proving good reason attributable to his employer. See McNabb , 352 N.W.2d at 382 (stating "notice of harassment to management is essential to a claim for [reemployment] benefits" (citation omitted)). Here, Vendsel testified that she told Morse about "the b-tch is back" comment and that Morse knew about the coworker's comments about her performance because the comments were made directly to Morse. The record does not indicate whether the comments continued after Vendsel complained. Further, the specific comment Vendsel cites was made on May 11. Vendsel spoke to Dr. Kaul and Morse about the issues she was having with coworkers on May 19 or 20, and Vendsel went on medical leave on May 26. We conclude that Vendsel did not give her employer adequate time to address the problem. See Tru-Stone , 400 N.W.2d at 838 (stating to establish good cause attributable to employer, employer must be given opportunity to correct problem).
Vendsel also cited the letter of expectations Morse gave her as evidence of harassment by MCF. The letter addressed certain areas of Vendsel's performance that Morse believed Vendsel needed to improve. The fact that Vendsel disagreed with the letter of expectations does not provide a good reason for Vendsel to quit. For instance, if an employer substantially reduces an employee's wages or changes an employee's position to a position requiring substantially less skill, that might give an employee good cause to quit. Dachel v. Ortho Met, Inc. , 528 N.W.2d 268, 270 (Minn.App. 1995). Here, as the commissioner's representative noted, there is no evidence that this letter affected Vendsel's pay or that it had any effect on her position.
The record reasonably supports the commissioner's representative's findings, and the representative did not err in concluding that Vendsel did not quit because of a good reason attributable to MCF.
The burden is on the resigning employee to prove that the serious illness exception to disqualification from benefits is applicable. Minchew v. Minnesota Odd Fellows Home , 429 N.W.2d 702, 703 (Minn.App. 1988). To come within the serious illness exception, "an employee must make reasonable efforts to retain the same employment." Id. at 704.
In determining what is a reasonable effort to retain employment, the [c]ommissioner must determine what is reasonable for the particular employee under the circumstances of that case.
Moeller v. Minnesota Dep't of Transp. , 281 N.W.2d 879, 882 (Minn. 1979) (citation omitted).
The only record evidence of Vendsel's illness is written comments from her chiropractor, Dr. Steffen. In a physician's statement dated June 3, 1998, Steffen states that Vendsel was unable to work because of "neck pain, extreme stress, depression, lethargy." On a form provided by MCF and dated June 15, Steffen noted that Vendsel could return to full-time work without restrictions on June 22. In a statement dated July 13, Steffen indicated that on June 12 she advised Vendsel to terminate her employment at MCF. Steffen explained:
I told her if her employment bothered her that much maybe she should look for something else. Patient stated she was experiencing retaliation at work due to a complaint she filed. She has been having headaches, abdominal pain, severe stress, depression, [and] lethargy, which she attributes to her work. I took her off work two weeks and a few days before she was to return to work, her symptoms were increasing. In my opinion more time off work would not be a permanent solution.
On the same form, Steffen indicated that Vendsel was now fully able to work.
Although Vendsel experienced physical symptoms as a result of her employment, Vendsel has not demonstrated that these symptoms rose to the level of a serious illness. The only medical evidence Vendsel submitted regarding her medical condition at the time she quit was Dr. Steffen's statements. Although Steffen did suggest that Vendsel look for another position, more importantly, she did not state that it was a medical necessity that Vendsel terminate her position with MCF. Further, Steffen informed MCF that Vendsel could return to work on June 22, 1998.
Even if Vendsel did have a serious illness that prevented her from working, she must also demonstrate that she made reasonable efforts to retain her employment. Minn. Stat. § 268.095, subd. 1(6) (stating to qualify for serious illness exception, claimant must make reasonable efforts to retain current employment). According to Vendsel, she sent MCF a letter on June 10 requesting a transfer. The MCF representative who testified at the evidentiary hearing stated that she did not recall seeing such a letter. Even assuming that on June 10 Vendsel sent MCF a letter requesting a transfer, Vendsel submitted her letter of resignation on June 18. That is not adequate time for MCF to consider her request. There is no evidence of any other efforts Vendsel made to retain her employment. For example, MCF's representative testified that Vendsel was eligible for personal leave and for up to a year of medical leave. Vendsel made no request for personal leave, and she failed to provide any medical documentation to support an alluded-to request for an extension of her medical leave.
The commissioner's representative did not err in concluding that Vendsel did not suffer from a serious illness and concluding that even if Vendsel did suffer from a serious illness, she did not make reasonable efforts to retain her employment.