Carlson v. Job Service North Dakota

• Decision Date: 29 May 1996
• Docket Number: 950415,Nos. 950409,s. 950409
• Citation: 548 N.W.2d 389
• Parties: Marilyn CARLSON, Claimant and Appellee, v. JOB SERVICE NORTH DAKOTA, Respondent, and North Dakota Department of Human Services, Respondent and Appellant. Marilyn CARLSON, Claimant and Appellee, v. JOB SERVICE NORTH DAKOTA, Respondent and Appellant, and North Dakota Department of Human Services, Respondent. Civil
• Court: North Dakota Supreme Court

Page 389

548 N.W.2d 389

Marilyn CARLSON, Claimant and Appellee, v.JOB SERVICE NORTH DAKOTA, Respondent, andNorth Dakota Department of Human Services, Respondent and Appellant.

Marilyn CARLSON, Claimant and Appellee, v.JOB SERVICE NORTH DAKOTA, Respondent and Appellant, andNorth Dakota Department of Human Services, Respondent.

Civil Nos. 950409, 950415.

Supreme Court of North Dakota.

May 29, 1996.

Richard L. Hagar, Kenner Sturdevant Peterson Cresap, P.C., Minot, for claimant and appellee.

Douglas A. Bahr, Assistant Attorney General, Attorney General's Office, Bismarck, for respondent and appellant Job Service North Dakota.

Tag C. Anderson, Assistant Attorney General, Attorney General's Office, Bismarck, for respondent and appellantNorth Dakota Department of Human Services.

VANDE WALLE, Chief Justice.

Job Service North Dakota (Job Service) and the North Dakota Department of Human Services(the Department) appealed from a district court judgment reversing Job Service's denial of Marilyn Carlson's claim for unemployment benefits.We conclude a preponderance of evidence supports Job Service's finding Carlson voluntarily quit her job without good cause attributable to her employer, and we reverse the district court judgment.

For more than ten years Carlson was employed by the North Central Human Service Center (North Central), which is the Minot District Office of the Department of Human Services, as a licensed addiction counselor.Together with two other coworkers, Marilyn resigned effective January 31, 1995, and she applied for unemployment benefits, claiming she quit her job "due to the stress ... through several matters of being degraded and treated unprofessionally, it started taking a toll on my life."A claims analyst denied Carlson's request for benefits, and she requested an administrative review.

After a hearing, an administrative referee found "the claimant has established that the conditions of her employment had become significantly unfavorable to the extent that she could no longer continue working" and concluded Carlson quit her job for good cause attributable to her employer, thereby 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 Carlson was not entitled to unemployment benefits because she voluntarily quit her job without good cause attributable to her employer.Carlson appealed to the district court, which overruled the Executive Director's decision in a terse memorandum decision, simply stating the agency's findings of fact were not supported by a preponderance of the evidence and its conclusions were not supported by its findings of fact.This appeal followed.

The standard for reviewing an appeal from an administrative agency decision is set forth under Section 28-32-19, N.D.C.C.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(N.D.1993).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(N.D.l994).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(N.D.1992).

Unemployment compensation is available to a worker who is unemployed through no fault of her own.Chapter 52-06, N.D.C.C.;Newland v. Job Service North Dakota, 460 N.W.2d 118(N.D.l990).However, under Section 52-06-02, N.D.C.C., a worker is disqualified from receiving benefits if she voluntarily quits employment without good cause attributable to her employer, and the employee has the burden of proving she quit her job for good cause.Erovick v. Job Service North Dakota, 409 N.W.2d 629(N.D.l987).The question whether a claimant quit without good cause is a "factual conclusion."Lipp v. Job Service North Dakota, 468 N.W.2d 133, 134(N.D.l991).

We have decided today a companion case, Esselman v. Job Service North Dakota, 548 N.W.2d 400(N.D.1996), involving Carlson's coworker, Michelle Esselman, who resigned on the same day Carlson resigned, for similar reasons under nearly identical circumstances.The relevant law and pertinent facts in each opinion are necessarily very similar, with one noted exception.In Esselmanthe district court upheld Job Service's denial of benefits to Esselman whereas the district court, a different judge sitting, reversed Job Service's denial of benefits to Carlson.Although we review the decision of the administrative agency, not that of the district court, in our deliberations we consider the district court's analysis and reasoning.Ekstrom v. North Dakota Workers Compensation Bureau, 478 N.W.2d 380(N.D.l991).In this casethe district court has not given more than a glimpse of its analysis.The court in four sentences of boiler plate simply said the referee's decision is correct and the agency's findings are not supported by a preponderance of evidence nor its conclusions supported by its findings.The district court may have believed the referee's findings must be followed.

Carlson complains the Executive Director of Job Service, in denying her claim for benefits, "failed to point out why [the referee's] findings were in error."We disagree.In Schultz v. North Dakota Dep't of Human Services, 372 N.W.2d 888, 892(N.D.1985), we stated:

"Although a hearing examiner has the advantage of hearing and seeing witnesses testify, an agency may reject the examiner's decision even on a question involving the credibility of contradictory witnesses.

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"Our inquiry is limited to a review of the findings, conclusions, and decision of the agency under the appropriate standard of review.The findings, conclusions, and decision should be sufficient to explain the rationale for not following the hearing officer's recommendation."(Citations omitted.)

Here, the Executive Director expressly stated his review was conducted "on the basis of the information contained in the record."We quote at length his relevant findings and reasoning, which clearly show why he rejected the referee's conclusion that Carlson is entitled to unemployment benefits:

"The claimant resigned her position because she was dissatisfied with working conditions.There was some disharmony among staff in the unit where the claimant worked which developed early in 1994....The claimant felt that the new supervisor gave her a negative performance evaluation in comparison to the nine previous performance evaluations she had received.However, the new supervisor did not believe that the claimant's performance evaluation was negative....

"During the summer of 1994, a new position for a women's program opened up.The claimant was considered as a leading candidate for the position by management.The claimant was not selected for the position because the position would have involved working with the new coworker hired in February and the claimant told management that it would be very difficult for her to work with someone who disliked her so much....

"In October 1994, the job duties of the claimant and other employees in her unit were changed.These changes were necessitated by new licensure mandates and all staff in the unit were expected to accept the changes.

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"The director of the center where the claimant worked arranged for assistance from an employee assistance program in an attempt to resolve the problems within the unit.On November 2, 1994, a meeting was held with the representative from the employee assistance program and staff from the unit, including the claimant.Fifteen areas of concern were identified and a plan was established to address one area of concern per month.

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"...The claimant continued working until January 31, 1995.At no time did she advise her employer that a physician advised her to quit her employment.The claimant's written resignation did not set forth any reasons why she was quitting her employment.

".... [W]hile the claimant was dissatisfied with working conditions, evidence in the record does not establish that the conditions were of a nature or extent 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."

The Executive Director's findings are supported by the testimony and other evidence in the record.Clearly, the Executive Director made his decision only after careful review and consideration of the record.We therefore conclude Carlson was not denied her right to a considered decision by the agency.C.f.Hammond v. North Dakota State Personnel Board, 345 N.W.2d 359(N.D.1984)[State Personnel Board's decisionon employee's termination based solely upon review of hearing examiner's report and recommendation rather than a review of the record evidence denied employee a fair hearing].

Carlson contends she was forced to quit her job because she was unable to get along with some of her coworkers and felt stressed and harassed at work.There is considerable authority that an employee has good cause to quit her job if she is being harassed by coworkers and her employer, with knowledge of the harassment, ignores it and fails to take measures to stop it.Hanke v. Safari Hair Adventure, 512 N.W.2d 614(Minn.Ct.App.1994);Wetterhahn v. Kimm Co., 430 N.W.2d 4(Minn.Ct.App.1988);Curry v. Gatson, 180 W.Va. 272, 376 S.E.2d 166(1988);Tru-Stone Corp. v. Gutzkow, ...