Charles Lambert Bey, Relator v. W.W. Johnson Meat Co., Inc., Department of Employment and Economic Development ( 2014 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA
IN COURT OF APPEALS
A13-1806
Charles Lambert Bey,
Relator,
vs.
W.W. Johnson Meat Co., Inc.,
Respondent,
Department of Employment and Economic Development,
Respondent.
Filed July 21, 2014
Affirmed
Peterson, Judge
Department of Employment and Economic Development
File No. 31227896-3
Charles Lambert Bey, Apple Valley, Minnesota (pro se relator)
W. W. Johnson Meat Co., Inc., Minneapolis, Minnesota (respondent employer)
Christine E. Hinrichs, Bassford Remele, Minneapolis, Minnesota (for respondent
department)
Considered and decided by Peterson, Presiding Judge; Schellhas, Judge; and
Connolly, Judge.
UNPUBLISHED OPINION
PETERSON, Judge
Pro se relator seeks certiorari review of an unemployment-law judge’s decision
that he is ineligible to receive unemployment benefits because he quit his employment
without good reason caused by his employer. We affirm.
FACTS
Relator Charles Bey worked for respondent W.W. Johnson Meat Co. Inc. from
December 12, 2005, to April 26, 2013. During his employment, there were three
incidents involving relator and the plant manager, Gary Bjornberg, that relator argues led
him to quit his employment.
In the first incident, which occurred in June 2011, Bjornberg encountered relator,
who is an American of Moroccan descent, and another worker who, according to relator,
is a “Puerto Rican Native American,” in the break room and said, “[H]ey boys, how is it
going out there[?]” Relator felt that Bjornberg’s use of the word “boy” was
dehumanizing, disrespectful, and racist. Relator did not report the incident, and
Bjornberg never again used “boy” to refer to relator.
In the second incident, which occurred in September 2011, relator was sitting in
the lunchroom with other workers, and as Bjornberg walked through the lunchroom he
“rubbed” relator “on [his] head.” Relator went immediately to speak with the company
CEO, Tom Raschadi, but Raschadi was not in the office, and relator did not speak to him
until a month later. At that time, Raschadi said that he would talk to Bjornberg, possibly
send him for training, and, if that did not work, go from there.
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In the third incident, Bjornberg called a meeting with production-line employees
on April 19, 2013, to talk about product mislabeling that occurred on their line. During
the meeting, as Bjornberg was talking about how products could not be sent out
mislabeled, he turned and “pointed directly in [relator’s] face,” almost touching relator.1
At lunch that day, relator complained to Bjornberg, who told him that he took things too
seriously and was overreacting, and demonstrated that he could point in his own face and
relator’s face, and said, “[L]isten, you know I can point in anybody’s face.” In response,
relator told Bjornberg, “[T]his right here is too hostile for me,” gave Bjornberg one
week’s notice, and went to the office of human-resources manager, Karen Rathburn, to
report what had happened, repeating that he wanted to quit at the end of the following
week. Relator hoped that the incident could be resolved, but the company accepted his
resignation.
Relator applied for unemployment benefits, and he was found ineligible. He
sought review in a hearing before an unemployment-law judge (ULJ). The ULJ heard
testimony primarily from relator, Bjornberg, and Rathburn. During his testimony,
Bjornberg denied that he had called relator a “boy” but did admit that he said “come on
boys let’s go” to a group of employees. He also denied rubbing relator’s head and said he
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Relator asserts that Bjornberg’s finger pointing constituted criminal assault. But, in the
criminal code, “assault” is defined as “(1) an act done with intent to cause fear in another
of immediate bodily harm or death; or (2) the intentional infliction of or attempt to inflict
bodily harm upon another.” Minn. Stat. § 609.02, subd. 10 (2012). “Bodily harm” is
defined as “physical pain or injury, illness, or any impairment of physical condition.”
Minn. Stat. § 609.02, subd. 7 (2012). Finger pointing, without some further conduct,
likely did not constitute an assault.
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merely tapped relator on his head to signify a “pat on the back.” Bjornberg testified that
when he learned that relator was offended by the first two incidents, he apologized to
relator. Bjornberg admitted that during the April 2013 meeting he pointed at the
employees and said, “[G]uys[,] we have to use our eyes, we have to look at these labels
cause we were sending out product with the wrong label[s] on them.”
Rathburn testified that relator came to speak with her several times over the years
to discuss various incidents, sometimes a significant period of time after the incidents
occurred. With regard to the two incidents in 2011, the company required Bjornberg to
receive further training. As to the final incident, Rathburn said that she conducted a
thorough investigation and interviewed the three employees who were with relator and
Bjornberg at the meeting. According to Rathburn, one of the employees did not
remember Bjornberg pointing, and the other two said that Bjornberg was using the
pointing gesture to remind them to be observant.
The ULJ found relator’s testimony more credible than Rathburn’s because “it was
detailed, persuasive, and described a more plausible sequence of events” and because
Rathburn’s testimony was “hesitant” and inconsistent. But the ULJ, nevertheless,
determined that relator quit his job, and he did not quit because of a good reason caused
by his employer. The ULJ concluded that, although some of the incidents were culturally
insensitive, most of the incidents occurred in 2011 and earlier and did not cause relator to
quit, and the incidents would not have caused an average worker to quit. As to the final
finger-pointing incident, the ULJ relied on Bjornberg’s and Rathburn’s testimony that
Bjornberg pointed at other employees as well as relator and determined that Bjornberg’s
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conduct would not have prompted the average worker to quit and it was not likely that
Bjornberg intended any disrespect. Relator requested reconsideration, and the ULJ
affirmed. This certiorari appeal followed.
DECISION
When reviewing the decision of a ULJ, this court may affirm the decision, remand
the case for further proceedings, or reverse or modify the decision if the relator’s
substantial rights
have been prejudiced because the findings, inferences,
conclusion, or decision are:
(1) in violation of constitutional provisions;
(2) in excess of the statutory authority or jurisdiction
of the department;
(3) made upon unlawful procedure;
(4) affected by other error of law;
(5) unsupported by substantial evidence in view of the
entire record as submitted; or
(6) arbitrary or capricious.
Minn. Stat. § 268.105, subd. 7(d) (2012). This court reviews the ULJ’s findings of fact in
the light most favorable to the decision and will not disturb the findings if the record
substantially supports them. Stassen v. Lone Mountain Truck Leasing, LLC, 814 N.W.2d
25, 31 (Minn. App. 2012). Credibility determinations are for the ULJ to make, Skarhus
v. Davanni’s Inc., 721 N.W.2d 340, 344 (Minn. App. 2006) (stating that ULJ must make
credibility determinations), and the unemployment statute requires the ULJ to enumerate
the reasons for finding one witness more credible than another, Minn. Stat. § 268.105,
subd. 1(c) (2012) (requiring ULJ to “set out the reason for crediting or discrediting . . .
testimony” when credibility significantly impacts a decision).
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“Whether an employee has been discharged or voluntarily quit is a question of
fact. . . .” Stassen, 814 N.W.2d at 31. A quit occurs “when the decision to end the
employment was, at the time the employment ended, the employee’s.” Minn. Stat.
§ 268.095, subd. 2(a) (2012). An applicant who quits employment is ineligible for
unemployment benefits unless a statutory exception to ineligibility applies. Minn. Stat. §
268.095, subd. 1 (2012). An employee is eligible for benefits if the employee “quit the
employment because of a good reason caused by the employer.” Id. subd. 1(1) (2012). A
good reason for quitting caused by the employer is a reason that:
(1) . . . is directly related to the employment and for which
the employer is responsible;
(2) . . . is adverse to the worker; and
(3) . . . would compel an average, reasonable worker to
quit and become unemployed rather than remaining in the
employment.
Id., subd. 3(a) (2012). “Good cause is a reason that is real, not imaginary, substantial not
trifling, and reasonable, not whimsical; there must be some compulsion produced by
extraneous and necessitous circumstances.” Haskins v. Choice Auto Rental, Inc., 558
N.W.2d 507, 511 (Minn. App. 1997) (quotation omitted). “The standard of what
constitutes good cause is the standard of reasonableness as applied to the average man or
woman, and not to the supersensitive.” Ferguson v. Dept. of Emp’t Servs., 311 Minn. 34,
44 n.5, 247 N.W.2d 895, 900 n.5 (1976) (quotation omitted). On given facts, the
question whether an employee had a good reason to quit is a question of law. Edward v.
Sentinel Mgmt. Co., 611 N.W.2d 366, 367 (Minn. App. 2000), review denied (Minn. Aug.
6
15, 2000). The employee’s reason for quitting is a fact determination for the ULJ. See
Beyer v. Heavy Duty Air, Inc., 393 N.W.2d 380, 382 (Minn. App. 1986) (reviewing as
factual finding ULJ’s determination of reason for employee’s quit).
Citing and relying nearly exclusively on federal law that is not related to
Minnesota unemployment compensation, relator makes several arguments why his
separation from employment was for a good reason caused by the employer. Relator
asserts that he endured “a constant and continuous stream of abuse” from Bjornberg that
was racially discriminatory and that individual acts constituted harassment or assault or
created a hostile work environment.
“Illegal conduct by an employer may constitute good cause for an employee to
quit.” Hawthorne v. Universal Studios, Inc., 432 N.W.2d 759, 762 (Minn. App. 1988).
Racial discrimination has been recognized as a good cause for an employee to quit. Marz
v. Dept. of Emp’t Servs., 256 N.W.2d 287, 289 (Minn. 1977). And harassment “may
constitute good reason [for a quit] if the employer has notice and fails to take timely and
appropriate measures to prevent harassment by a co-worker.” Nichols v. Reliant Eng’g &
Mfg., Inc., 720 N.W.2d 590, 595 (Minn. App. 2006).
Relator did not object to the conduct in the first incident in 2011, and when
Bjornberg learned that the first two incidents offended relator, he apologized to relator.
More importantly, in spite of the first two incidents, relator continued working for
respondent for almost two years, which supports the ULJ’s finding that the incidents did
not cause relator to quit his employment, as required to receive unemployment benefits.
Minn. Stat. § 268.095, subd. 1(1) (requiring quit to be “caused” by the employer).
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The final incident was, at most, inappropriate, rather than actionable
discrimination or other actionable conduct. See Portz v. Pipestone Skelgas, 397 N.W.2d
12, 14 (Minn. App. 1986) (excluding from good cause to quit “situations where an
employee experiences irreconcilable differences with others at work, or where the
employee is simply frustrated or dissatisfied with his working conditions”). On the facts
determined by the ULJ, which find substantial support in the record, the final incident
was not a good cause for quitting.
Affirmed.
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