                         This opinion will be unpublished and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                        UNPUBLISHED OPINION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


                                            4
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.


                                             5
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


                                           6
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




                                            7
‘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.


                                           8
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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