Opinion
No. C9-96-2568.
Filed July 1, 1997.
Appeal fromt he Minnesota Department of Economic Security, File No. 7632 UC 96.
Anthony J. Savage, (relator pro se).
Cityscape Contractors, Inc., (respondent).
Kent E. Todd, (for respondent Commissioner).
Considered and decided by, Parker, Presiding Judge, Toussaint, Chief Judge, and Harten, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
The Commissioner's representative disqualified relator Anthony Savage from receiving reemployment insurance benefits, concluding that Savage had voluntarily quit his job without good cause attributable to respondent Cityscape Contractors, Inc. (Cityscape). Because there is evidence in the record that reasonably tends to sustain the Commissioner's representative's findings, we affirm.
DECISION
An employee who voluntarily quits a job without "good cause attributable to the employer" is disqualified from receiving reemployment insurance benefits. Minn. Stat. § 268.09, subd. 1(a) (1996). The employee has the burden of proving good cause to quit. Marz v. Department of Employment Servs. , 256 N.W.2d 287, 289 (Minn. 1977).
We review the Commissioner's representative's factual findings to determine whether there is evidence in the record reasonably tending to sustain them. White v. Metropolitan Medical Ctr. , 332 N.W.2d 25, 26 (Minn. 1983).
Harassment, including anger and swearing directed towards an employee, may provide the employee with good cause to quit. See Wetterhahn v. Kimm Co. , 430 N.W.2d 4, 6 (Minn.App. 1988) (co-worker continuously swore and yelled at relator, harassment, coupled with employer's failure to take sufficient action when notified, provided employee with good cause to quit); Tru-Stone Corp. v. Gutzkow , 400 N.W.2d 836, 839 (Minn.App. 1987) (harassment by fellow employees, including drawings with profanities written underneath, provided employee with good cause to quit, when employer failed to take appropriate action).
The Commissioner's representative made a credibility finding that Savage was not offended by language directed towards him by Cityscape's owner. Cf. Nyberg v. R.N. Cardozo Bro., Inc. , 243 Minn. 361, 365, 67 N.W.2d 821, 824 (1954) (general manager's profanity was not the reason for employee's decision to quit). We defer to the Commissioner's credibility determination, which supported by the fact that Savage could not remember the specific language that the owner had used. See Kern v. Savanna Golf Supper Club , 406 N.W.2d 46, 48 (Minn.App. 1987) (court should defer to the Commissioner's credibility determinations).
Even if Savage were offended by the owner's language, he had a duty to complain, in order to provide the owner with an opportunity to correct the problem. See McNabb v. Cub Foods , 352 N.W.2d 378, 382 (Minn. 1984) (notice of harassment prior to quitting is essential to a claim for reemployment insurance benefit). Because Savage did not complain, he is barred from claiming good cause to quit.
Savage also complains that Cityscape refused to pay him overtime wages. Illegal conduct by an employer, such as a violation of overtime laws, may constitute good cause to quit. Hawthorne v. Universal Studios, Inc. , 432 N.W.2d 759, 762 (Minn.App. 1988). But the Commissioner's representative found that Savage had insufficiently supported his claim that he was not paid overtime wages. This finding is supported by Cityscape's testimony that employees who exceeded 40 hours in any pay period were paid time-and-a-half.