Lee Xiong, Relator v. Water Gremlin Co. (Corp.), Department of Employment and Economic Development

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-1517
Lee Xiong,
Relator,
vs.
Water Gremlin Co. (Corp.),
Respondent,
Department of Employment and Economic Development,
Respondent.
Filed May 23, 2016
Affirmed
Rodenberg, Judge
Department of Employment and Economic Development
File No. 33525405-3
Lee Xiong, St. Paul, Minnesota (pro se relator)
Water Gremlin Co. (Corp.), White Bear Lake, Minnesota (respondent)
Lee B. Nelson, Timothy C. Schepers, St. Paul, Minnesota (for respondent department)
Considered and decided by Peterson, Presiding Judge; Bjorkman, Judge; and
Rodenberg, Judge.
UNPUBLISHED OPINION
RODENBERG, Judge
In this certiorari appeal, relator Lee Xiong challenges the determination of an
unemployment-law judge (ULJ) that he is ineligible for unemployment benefits. He
argues that he quit his employment due to a good reason caused by the employer. We
affirm.
FACTS
Relator was a maintenance technician at the Water Gremlin Company (the
company) from March 31, 2014 to March 26, 2015. In October 2014, relator was given a
warning for unsatisfactory attendance. In November 2014, relator was warned for failing
to follow instructions and procedures when performing maintenance on a machine,
causing damage to the machine.
At some point in 2014, relator complained to the maintenance manager concerning
relator’s supervisor’s demeanor. The supervisor was admonished by the maintenance
manager.
In January 2015, the maintenance manager spoke with relator about several
performance issues, including not using his time wisely, not properly accounting for his
time at work, and failing to follow procedures. During this conversation, relator
complained about his supervisor using a loud tone of voice when interacting with him
and telling relator that he could only use the bathroom in case of emergencies. The
maintenance manager confirmed that relator should only use the bathroom for
emergencies unless he was on break.
On February 24, 2015, relator’s supervisor made a racist comment to relator while
confronting him about again failing to follow proper procedures. After receiving an
email from the supervisor indicating that he “had had some problems with [relator],” the
maintenance manager interviewed relator, the supervisor, a second-shift supervisor, and
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an operator who had been in the area. Relator complained that the supervisor had yelled
at him and treated him badly, but did not then mention the racist comment. The operator
stated that he observed an argument but could not hear what was said over the factory
noise and his earplugs. The supervisor admitted that he had confronted relator about his
repeated failure to use a certain diagnostic program.
On March 3, 2015, the maintenance manager again warned relator about not
following proper procedures, insubordination, and rudeness during the February 24
incident. The following day, relator submitted to the human-resources manager a
handwritten response to this warning. He detailed the incident and, for the first time,
disclosed the supervisor’s February 24 racist comment. The human-resources manager
interviewed relator, the supervisors, and two operators who relator believed had
witnessed the incident. The operators denied hearing the racist comment, and the
supervisor denied making it. The human-resources manager determined that the
supervisor had likely raised his voice in frustration, and he told the supervisor that he
needed to take a “kinder, gentler approach” to working with others. The supervisor was
not otherwise disciplined. The human-resources manager also investigated relator’s
allegation concerning another racist comment the supervisor made to another operator,
who confirmed that the supervisor had made the comment but that the operator “hadn’t
thought to tell [the human resources manager].” Relator, unhappy with the
investigations, asked the company’s vice president if he could conduct his own
investigation. The vice president denied his request.
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On March 26, 2015, relator received a negative performance evaluation indicating
that he “needed improvement” in the safety and quality-of-work categories. Relator was
not disciplined but was denied a pay increase because of the warnings and the overall
negative evaluation. Relator quit his employment that same day, maintaining that he did
so because he received warnings in retaliation for reporting the supervisor’s racist
comment.
Relator applied for unemployment benefits. The Minnesota Department of
Employment and Economic Development (DEED) determined that relator was ineligible
for unemployment benefits because he had not demonstrated a good reason caused by the
company for quitting his employment. Relator appealed, and a ULJ conducted a
telephone hearing.
The ULJ issued a decision finding that relator quit his employment with the
company, rendering him ineligible for unemployment benefits. Relator requested
reconsideration, and the ULJ issued an order in August 2015 determining “that the
findings of fact and reasons for decisions issued on June 3, 2015 are not factually correct
and should be modified but that the decision is legally correct.” The ULJ determined on
reconsideration that the supervisor’s racist comment amounted to an adverse working
condition. But the ULJ also found, based on relator’s testimony, that the adverse
condition had been alleviated, that relator had not had any negative interactions with the
supervisor after that date, and that the supervisor had made no further similar comments.
The ULJ also determined that “because [relator] had received performance-related
warnings prior to February 24, it is unlikely that [the company] issued [relator] the
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March 3, 2015 warning to retaliate against him. It is also unlikely that, in an at-will
employment relationship, an employer would fabricate warnings [concerning] employees
solely to discharge them.” The ULJ found that “the record does not support that . . . the
second shift supervisor closely monitored [relator] in an effort to discharge him. The
most reasonable explanation is that [relator] was not following policies and procedures.”
Therefore, the ULJ determined that relator “was not entitled to a pay raise and he was not
given a pay raise because of work performance issues. An average, reasonable employee
would not quit and become unemployed in those circumstances.” This certiorari appeal
followed.
DECISION
When reviewing a ULJ’s eligibility decision, we may affirm, remand for further
proceedings, or reverse or modify the decision if the substantial rights of the relator have
been prejudiced because the findings, inferences, conclusion, or decision are affected by
an error of law or are unsupported by substantial evidence. Minn. Stat. § 268.105, subd.
7(d)(4)-(5) (Supp. 2015). Factual findings are viewed in the light most favorable to the
ULJ’s decision, and we will not disturb them if they are substantially supported by the
evidence in the record. Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 344 (Minn. App.
2006).
An employee who quits employment cannot collect unemployment benefits
unless, as relevant here, the employee quits for a good reason caused by the employer.
Minn. Stat. § 268.095, subd. 1(1) (2014). An employee quits when, at the time his or her
employment ended, it was the employee’s decision to end the employment. Id., subd.
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2(a) (2014). It is undisputed that relator made the decision to quit. To qualify for the
good-reason exception, the reason must be: “(1) directly related to the employment and
for which the employer is responsible”; (2) adverse to the employee; and (3) one “that
would compel an average, reasonable [employee] to quit and become unemployed rather
than remaining in the employment.” Minn. Stat. § 268.095, subd. 3(a). The “reasonable
worker” standard is objective and considers what an average person would do. See
Ferguson v. Dep’t of Emp’t Servs., 311 Minn. 34, 44 n.5, 247 N.W.2d 895, 900 n.5
(1976). However, before quitting is considered to be for good reason, an employee is
required to “give the employer a reasonable opportunity to correct the adverse working
conditions.” Minn. Stat. § 268.095, subd. 3(c) (2014). Racial discrimination constitutes
good cause to quit. Marz v. Dep’t of Emp’t Servs., 256 N.W.2d 287, 289 (Minn. 1977).
Whether an employee had a good reason to quit caused by the employer is a
question of law reviewed de novo. Rowan v. Dream It, Inc., 812 N.W.2d 879, 883
(Minn. App. 2012). But the reason an employee quit is a question of fact. See Beyer v.
Heavy Duty Air, Inc., 393 N.W.2d 380, 382 (Minn. App. 1986) (reviewing a
determination of the reason an employee quit as a fact question). The conclusion that an
employee did not have a good reason to quit must be based on factual findings supported
by substantial evidence. Nichols v. Reliant Eng’g & Mfg., Inc., 720 N.W.2d 590, 594
(Minn. App. 2006).
Relator argues that he had a good reason to quit caused by the employer because
he was subjected to racial harassment and unfair treatment from his supervisor, the
company had failed to take action against the supervisor, and the warning he received and
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his poor performance review were in retaliation for complaining about the racist
comment. The ULJ found as a fact that relator was subject to an adverse working
condition on February 24, 2015 because of the supervisor’s racist comment. The ULJ
also found as a fact that the adverse condition had been alleviated. There were no more
such comments, and relator had not had any negative interactions with the supervisor
after that date. The ULJ found relator’s claim that the second-shift supervisor had closely
monitored him in an effort to harass him unpersuasive, stating that “[t]he most reasonable
explanation [the supervisor monitored relator] is that [relator] was not following policies
and procedures.” The ULJ therefore concluded that relator had voluntarily terminated his
employment because he was upset over his poor performance evaluation, a response to
the evaluation that an average, reasonable person would not have had.
Relator seems to concede that the record supports the ULJ’s factual findings. He
nevertheless argues that the working conditions at the company were sufficiently adverse
to make continuing employment there “uncomfortable.” The record substantially
supports the ULJ’s finding that relator did not quit for good reason caused by the
employer. Although the supervisor’s racist comment undoubtedly made relator’s work
uncomfortable, the company took reasonable measures to correct the supervisor’s
behaviors, as indicated by relator’s testimony that he had not had any other negative
encounters with the supervisor after the incident was investigated. Relator’s complaints
concerning the management’s disciplinary decisions are fairly characterized as
irreconcilable differences. “Irreconcilable differences with an employer do not constitute
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‘good cause’ to quit, nor does mere dissatisfaction with working conditions.” Ryks v.
Nieuwsma Livestock Equip., 410 N.W.2d 380, 382 (Minn. App. 1987).
The ULJ’s determination that relator’s poor performance review was due to his
multiple past warnings is also supported by the record. Relator had been warned twice
before for unsatisfactory attendance and failing to follow safety protocols. The
maintenance manager had also spoken with relator about excessive non-work-related
computer use, using his time wisely, appropriate use of break times, ongoing failure to
follow diagnostic procedures, and unauthorized use of equipment. Relator had been
warned that he needed to ask questions if he was unsure how to complete a task and that
he needed to record his performance in a daily maintenance log. Relator’s performance
review indicating that he “need[ed] improvement” in the safety and quality-of-work
categories reflects these previous warnings. Despite relator’s performance review, the
maintenance manager testified that he had no plan to terminate relator’s employment.
The performance review showing below-average performance meant that no pay increase
would be forthcoming, but relator had no promise of a pay increase.
Relator claims on appeal that the supervisor made other racist comments and had
twice before hit operators on the head. He also argues that the human-resources manager
had threatened to fire the supervisor, but he was not fired. Relator never made these
allegations before the ULJ. An issue that was not raised before the ULJ is not properly
before this court on review. Peterson v. Ne. Bank-Minneapolis, 805 N.W.2d 878, 883
(Minn. App. 2011). Moreover, even if these allegations were properly before us, there is
no record evidence that relator reported them to management during his employment.
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See Minn. Stat. § 268.095, subd. 3(c); cf. Nichols, 720 N.W.2d at 592-93 (reversing
ULJ’s ineligibility determination where employee reported escalating threats of physical
violence and verbal abuse, and employer did not take reasonable measures to correct
those conditions). Because there is no evidence that the company was aware of any other
verbal or physical threats, those conditions cannot be considered good cause for relator
quitting.
In sum, the record supports the ULJ’s factual findings and conclusions of law on
reconsideration. The ULJ’s determination that relator is ineligible for unemployment
benefits is not erroneous because relator made the decision to quit his employment and he
does not satisfy a statutory exception to ineligibility.
Affirmed.
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