Esselman v. Job Service North Dakota

MLARING, Justice,

concurring in the result.

I write separately to point out that the majority opinion should not be read to condone all of the actions of Esselman’s employers. Evidence in the record suggests that Esselman was not only treated unprofessionally by her fellow workers, but also by her supervisors. When supervisors treat an employee unprofessionally, verbally attack and intimidate her, and permit co-employees to do the same, the employee is put in an especially vulnerable position, because she can no longer rely on the employer who is supposed to address the harassment. If supervisors permit the harassment of an employee, and the employer cannot or will not protect the employee from such harassment, the employee may have good cause to quit. As the majority points out, there is considerable authority that stands for this proposition. See Hanke v. Safari Hair Adventure, 512 N.W.2d 614, 618 (Minn.App.1994); Wetterhahn v. Kimm Co., 430 N.W.2d 4, 6 (Minn.App.1988); Curry v. Gatson, 180 W.Va. 272 , 376 S.E.2d 166, 169 (1988); Tru-Stone Corp. v. Gutzkow, 400 N.W.2d 836, 839 (Minn.App.1987); Turco v. Dep’t of Employment Security, 141 Vt. 135 , 446 A.2d 345, 347 (1982).

The record contains some evidence that Esselman’s employer took steps to relieve the workplace problems cited by Esselman. The majority finds it significant that Essel-man’s employer scheduled a retreat and brought in an outside group to provide employee assistance. I do not believe, however, that the majority opinion should be read to imply that employers can immunize themselves from the need to deal with workplace harassment by simply scheduling retreats and meetings recommended by outside consultants. What actually takes place at these meetings is very important. In the present case, Esselman testified she felt intimidated when one of her co-workers stood up, yelled at her,.and moved toward her in an intimidating way. This occurred in the presence of a supervisor and nothing was done to stop or discourage the conduct. At the January 1995 meeting, Carol Butz, a supervisor, started by identifying three employees, including *406 Esselman, as the problem. Esselman, Marilyn Carlson, and Brad Brown were identified as the ones who wrote a letter to Henry C. “Bud” Wessman. David Snyder, the director, told their coworkers the letter identified him as a poor director. He told the team that writing the letter was poor judgment. Butz admitted in testimony, “[tjhere was no reason for others to know who wrote the letter.” Esselman, Carlson, and Brown were called insubordinate by a coworker. Their supervisor and the director did nothing to discourage the name calling.

The agency reviewed the testimony and decided that Esselman quit her job without good cause attributable to the employer. I am bound by the standard of review contained in Section 28-32-19, N.D.C.C. In this case I cannot say that a reasoning mind could not have reasonably decided that the agency’s factual conclusions were proven by the weight of the evidence. I, therefore, agree with the majority that the agency decision must be affirmed.