Esselman v. Job Service North Dakota

548 N.W.2d 400, 1996 N.D. LEXIS 144, 1996 WL 280836

• Court: North Dakota Supreme Court
• Decided: May 29, 1996
• Docket: Civil 960006
• Status: Published

Opinions

SANDSTROM, Justice.

Michelle Esselman appealed from a district court judgment affirming Job Service North Dakota’s denial of her claim for unemployment benefits. We conclude a preponderance of evidence supports Job Service’s finding Esselman voluntarily quit her job without good cause attributable to her employer, and we affirm the judgment.

I

For over seven years Esselman was employed by the North Central Human Service Center (North Central), the Minot district office of the Department of Human Services, as a licensed addiction counselor. She resigned effective January 31, 1995, and applied for unemployment benefits, claiming she quit her job for “stress related medical problems.” A claims analyst denied Essel-man’s request for benefits, and Esselman sought an administrative review of the decision.

After a telephone hearing, an administrative referee found “the conditions of [Essel-man’s] employment had become significantly unfavorable to the extent that she could no longer continue working” and concluded Es-selman left her employment with good cause attributable to her employer, entitling her to receive unemployment benefits. North Central requested a review by the Executive Director of Job Service, who rejected the referee’s decision and concluded, in relevant part:

“In this case, while the claimant was dissatisfied with working conditions, evidence in the record does not establish that the conditions were of a nature or extent so as to be considered good cause attributable to the employer for voluntarily leaving employment. The employer made a good faith attempt to resolve the situation by arranging a retreat and for employee assistance .... Under these circumstances, the claimant has not established good cause attributable to the employer for voluntarily leaving employment.”

Esselman appealed to the district court, which upheld the Executive Director’s decision. Esselman then appealed to this Court.

The appeal from the administrative agency decision to the district court was timely under N.D.C.C. § 52-06-27. The district court had jurisdiction under N.D. Const. Art. VI, § 8, and N.D.C.C. § 52-06-27. Esselman’s appeal from the district court to this Court was timely under N.D.C.C. § 52-06-27 and N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. Art. VI, § 6, and N.D.C.C. § 52-06-27.

II

N.D.C.C. § 28-32-19 sets the standard for reviewing an appeal from an administrative agency decision. We review the decision of the agency, not the decision of the district court. Lambott v. Job Service North Dakota, 498 N.W.2d 157, 158 (N.D.1993). Under N.D.C.C. § 28-32-19, we affirm the agency decision unless one of the six enumerated reasons exists for overturning it. We sustain the agency’s findings of fact unless they are not supported by a preponderance of the evidence and uphold the agency’s conclusions of law unless they are not supported by its findings of fact. Lovgren v. Job Service North Dakota, 515 N.W.2d 143, 145 (N.D.1994). We do not make independent findings of fact or substitute our judgment for that of the agency, but decide only whether a reasoning mind could have reasonably decided the agency’s factual conclusions were proved by the weight of the evidence. Tehven v. Job Service North Dakota, 488 N.W.2d 48, 49 (N.D.1992); Power Fuels, Inc. v. Elkin, 283 N.W.2d 214, 220 (N.D.1979).

Under N.D.C.C. Ch. 52-06, a worker who exhibits a genuine commitment to working and is unemployed through no fault of her own is entitled to receive unemployment compensation. N.D.C.C. §§ 52-01-05 and 52-06-01; Newland v. Job Service North Dakota, 460 N.W.2d 118, 121 (N.D.1990). Under N.D.C.C. § 52-06-02, however, a worker is disqualified from receiving benefits if she voluntarily quits employment without good cause attributable to the employer. In Newland at 122-23, this Court addressed the meaning of the phrases “attributable to the employer” and “good cause:”

“ ‘Attributable to the employer’ means ‘produced, caused, created or as a result of actions by the employer.’

* * :J:

“Although this Court has not previously defined ‘good cause’ in the context of unemployment compensation, ‘good cause’ has been defined elsewhere as a reason for abandoning one’s employment which would impel a reasonably prudent person to do so under the same or similar circumstances.”

The question whether a claimant quit without good cause attributable to the employer is a “factual conclusion.” Lipp v. Job Service North Dakota, 468 N.W.2d 133, 134 (N.D.1991). To qualify for unemployment benefits, the employee has the burden of proving she quit her job for good cause attributable to the employer. Erovick v. Job Service North Dakota, 409 N.W.2d 629, 630 (N.D.1987).

Ill

Esselman claims her resignation was for good cause attributable to North Central because she was treated unprofessionally, verbally attacked and intimidated by coworkers during group meetings, and was “scapegoated” by coworkers as a source of office conflict. Esselman testified those stressful working conditions caused her to suffer physical symptoms, including migraine headaches and stomach problems, which ultimately led to her resignation. Esselman does not argue she met the requirements for a medical exception to benefit disqualification under N.D.C.C. § 52-06-02(1).¹ Job Service found the lack of communication and conflict in the office was not attributable to or the fault of North Central. Job Service also found North Central made good faith attempts to resolve the problems among the office staff, but Esselman voluntarily quit before North Central had a chance to resolve the identified problems.

There were communication problems and conflict among coworkers for over a year before Esselman quit. A new supervisor, hired at North Central in February 1994, stressed teamwork and communication. Nevertheless, communication and cooperation among the coworkers continued to deteriorate. The office director scheduled a retreat in April 1994 for employees to address the situation. Esselman testified she was “verbally attacked on several different occasions” at the retreat and felt intimidated when one of her coworkers angrily yelled at her. In November 1994, the office director engaged St. Alexius, which sponsors an employee assistance program, to meet with the employees to resolve their conflicts and communication problems. At the first meeting 15 issues were identified, and it was decided a meeting each month would be held to address a different problem area.

About this time, Esselman and two coworkers wrote a letter to H.C. Wessman, the Director of the Department of Human Services, complaining about the stressful working relationships in their district office. The letter is not in the record and there is no showing it constituted an attempt to initiate formal grievance procedures. Wessman responded to the letter, stating he was in favor of the “proactive stance” the office director was taking in getting help through the St. Alexius employee assistance program. He indicated the workers could write again if they had further concerns. Employee assistance meetings were held in December 1994 and in January 1995. At the January meeting, employees were informed about the letter Esselman and her coworkers had written to Wessman. Some of the workers bluntly expressed them opinion that sending the letter demonstrated poor judgment and an act of insubordination. Esselman claimed she was being targeted at the meeting as a troublemaker by her coworkers and was “being scapegoated for all the team problems.”

IV

This Court has not before addressed the question of what constitutes good cause attributable to an employer in the context of an employee quitting a job primarily because coworkers cannot get along with one another. Cases from other jurisdictions addressing this issue provide useful insight and guidance.

An employee does not have good cause attributable to an employer to quit a job merely because the employee experiences irreconcilable differences with coworkers or is frustrated or dissatisfied with working conditions. Portz v. Pipestone Skelgas, 397 N.W.2d 12, 14 (Minn.App.1986). If, however, an employee is being harassed by coworkers, the employee may have good cause to quit if the employer has notice of the harassment but fails to take timely and appropriate measures to prevent it. Hanke v. Safari Hair Adventure, 512 N.W.2d 614, 618 (Minn.App.1994) (employee who was harassed by co workers because of his sexual orientation had reasonable cause to quit his job when his employer did not give him any reasonable expectation of assistance to solve the problem); Wetterhahn v. Kimm Co., 430 N.W.2d 4, 6 (Minn.App.1988) (employee who was victim of ongoing swearing and yelling by coworker had good cause to quit when her employer had notice of the harassment and failed to take measures to stop it); Curry v. Gatson, 180 W.Va. 272, 376 S.E.2d 166, 169 (1988) (employee who quit her job because of sexual and racial harassment by coworkers had good cause attributable to her employer); Tru-Stone Corp. v. Gutzkow, 400 N.W.2d 836, 839 (Minn.App.1987) (employee whose coworkers taunted and harassed him by calling him names and drawing uncomplimentary pictures of him with profanities written underneath had good cause to quit his job when his employer failed to respond to the situation); Turco v. Dep’t of Employment Security, 141 Vt. 135, 446 A.2d 345, 347 (1982) (employee harassed by coworkers about his religious beliefs had good cause to quit when his employer acted with callous indifference and refused to address the problem).

Unlike the circumstances in the foregoing cases, Esselman does not claim she was being taunted, teased, or harassed by coworkers. Her subjective feelings of being intimidated and verbally attacked occurred in very limited circumstances during group meetings held for the specific purpose of having candid discussions to resolve employee conflict. A fair summary of Esselman’s testimony is that she suffered stress at work because she and her coworkers simply could not communicate or get along. They ultimately split into factions or cliques with unresolved conflict and anger among them.

An administrative secretary testified the stress and tension in the office was primarily caused by “a lack of communication” and “[m]aybe some personality conflicts.” She said Esselman and two other employees were singled out by the others as “the individuals that were creating the problems or creating the stressful situation.”

Esselman testified she did not tell her direct supervisor or her next level supervisor she felt she was being treated unfairly by coworkers. She did, however, discuss with the next level supervisor her feelings of stress and frustration at work. That supervisor asked Esselman, “What do you think we could do to improve this?” Esselman responded, she “really didn’t know.” That supervisor testified she believed Esselman and a coworker, Marilyn Carlson, were part of the problem because they “were sometimes very critical of the other staff members,” were “[n]ot as supportive of the other unit members,” and “[a]t times, they were condescending to ... the other staff members.” That supervisor also testified she asked Esselman if she would like to work in a new women’s program at North Central, but Esselman responded, “she could not work with [a certain team member]. That she was ... unable to trust her and so consequently she would not be able to work with her.”

Esselman relies on the case of Richards v. Daniels, 1 Ark.App. 331, 615 S.W.2d 399 (1981), to support her claim she quit for good cause attributable to her employer. In Richards, a kindergarten teacher was harassed by a principal and other teachers when she refused to sign a petition against the school’s superintendent. After she refused to sign the petition, the principal and teachers failed to notify her of meetings, failed to give her messages, and refused to assist her when she had problems with students. The principal scheduled Richards’ rest break at the end of the school day and then sent “one-sided, bad reports” about her to the superintendent. For three years Richards asked to be transferred to another grade within the school system, but her requests were refused on the ground she was best qualified for her kindergarten teacher position. Richards finally resigned and was denied unemployment benefits because she had voluntarily quit. The Arkansas Court of Appeals, awarding Richards’ unemployment benefits, concluded she proved her resignation was for good cause attributable to her employer. The court found Richards was mistreated by coworkers for a considerable period of time and that she had made reasonable but unsuccessful efforts to resolve the conflict by requesting a transfer within the school system. The court concluded a reasonable person in Richards’ circumstances would have been compelled to quit.

Richards is clearly distinguishable from the circumstances here. Esselman was not subjected to the type of harassment by coworkers as Richards experienced. Unlike Richards, who did nothing to provoke mistreatment by the principal or other teachers, there is evidence Esselman was as much or more the cause of the office conflict as any other employee. Furthermore, unlike Richards’ employer, who refused Richards’ suggested transfer and failed to seek any other solution to the ongoing harassment Richards was experiencing, Esselman’s office director intervened to resolve the office problems. He scheduled a retreat in an attempt to identify and resolve the problems. He then hired St. Alexius to provide services, through its employee assistance program, to identify and address staff problems over a period of time. Esselman’s resignation after the second meeting short-circuited the program and prevented any chance of its future success.

Having reviewed the record, we conclude a reasoning mind could have reasonably determined, as did Job Service in this case, Essel-man failed to prove her resignation was the result of good cause attributable to her employer. The Job Service findings of fact are supported by a preponderance of the evidence, and its conclusions of law are supported by its findings of fact.

V

Esselman also claims she was denied a fair hearing because Job Service considered an ex parte communication by the office director. In requesting a review of the referee’s recommendation, the office director submitted a memorandum explaining his position on the issues. Esselman was provided a copy of the memorandum, and she had ample opportunity to respond to it. Furthermore, Esselman’s counsel was unable to demonstrate the Job Service Executive Director, in reviewing the referee’s decision, relied upon any substantive fact contained in the memorandum which was not also part of the record evidence. A person is denied due process or a fair hearing when the defects in the hearing process might lead to a denial of justice. Erovick v. Job Service North Dakota, 409 N.W.2d 629, 631 (N.D.1987). We are not convinced a denial of justice occurred in this hearing process. We conclude the agency did not impermissibly rely upon the memorandum and did not deny Esselman a fair hearing.²

VI

The district court judgment upholding Job Service’s denial of Esselman’s claim for unemployment benefits is affirmed.

VANDE WALLE, C.J., and NEUMANN, J., concur.

1 . Contrary to the impression created by the dissent, a "medical quit” under the statute was not claimed nor were the statutory requirements for a medical quit followed. Under N.D.C.C. § 52-06-02(1), “medical quit” and "good cause attributable to the employer" are separate and distinct provisions of the law.

2 . The dissent cites Heifetz v. Dep’t of Business Regulation, 475 So.2d 1277, 1281 (Fla.App.1985), which is a Florida case that is contrary to our North Dakota law. Schultz v. North Dakota Dep't of Human Services, 372 N.W.2d 888, 892 (N.D.1985). While a hearing officer (referee) may in some cases be in the better position to observe witnesses and determine the basic evi-dentiary facts ("what happened”), the agency head (Executive Director) may be in the better position to determine the ultimate question, whether, as here, evidentiary facts amount to “good cause." Compare, Thompson v. Keohane, - U.S. -, -, 116 S.Ct. 457, 465-466, 133 L.Ed.2d 383 (1995). And as this Court has held, "an agency may reject the examiner's decision even on a question involving the credibility of contradictory witnesses.” Schultz.