                        This opinion will be unpublished and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                         UNPUBLISHED OPINION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.


                                             2
       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



1
  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.


                                             3
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


                                             4
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).



                                             5
       “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).


                                            7
      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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