Biegner v. Bloomington Chrysler/Plymouth, Inc.

LANSING, Judge,

dissenting.

“Good cause attributable to the employer” may be established if the employee has been subjected to harassment on the job *487and can demonstrate that he gave his employer notice of the harassment and an opportunity to correct the problem. Larson v. Department of Economic Security, 281 N.W.2d 667, 669 (Minn.1979); Tru-Stone Corporation v. Gutzkow, 400 N.W. 2d 836, 838 (Minn.Ct.App.1987); Porrazzo v. Nabisco, Inc., 360 N.W.2d 662, 664 (Minn.Ct.App.1985). The employee need not continue to notify the employer of additional harassment unless the employer has provided a reasonable expectation of assistance in eliminating the problem. See Larson, 281 N.W.2d at 669; Porrazzo, 360 N.W.2d at 664.

Biegner was the subject of repeated harassment in the form of remarks about his sex life which continued until he complained to a union steward, who brought the harassment to the attention of the used car manager. Thereafter, although the manager stopped his own participation in the sexual remarks, practical jokes by the other salesmen continued. In mid-April 1987, a salesman made a dummy using Biegner’s work clothes and hung it in effigy in the body shop. When Biegner complained, his employer spoke with both Bieg-ner and the salesman and cautioned them that they would have to get along with each other or one or both would be fired.

All three participants in the meeting following the incident with the dummy testified that the manager cautioned both Bieg-ner and the salesman suspected of instigating the incident that they would have to get along with each other or one of them would be fired. Nothing in the record supports the commissioner’s conclusions that the employer intended to direct the threat of discharge only to the salesman, and that Biegner could not have believed that his job was in jeopardy. The manager’s remarks placed at least some of the responsibility for the harassment on Biegner himself, failed to provide Biegner with any reasonable expectation of assistance, and tended to discourage him from requesting additional protection.

The commissioner also emphasized that the manager spoke privately with Biegner for about an hour following the meeting with the salesman, noting that “[t]his is not demonstrative of an employer who believes the claimant is at fault.” The record indicates, however, that much of that hour was spent in an attempt to convince Biegner that he must “learn to accept” the salesmen’s practical jokes and get along with them. This response to the harassment would not have produced a reasonable expectation of assistance. Cf. Tru-Stone, 400 N.W.2d at 838 (employer’s solution to harassment complaint was threat to make employees work together until they “can learn to get along”).

Because the employer’s response to Bieg-ner’s harassment complaint chilled his right to ask the employer for further protection, and failed to provide him with a reasonable expectation of assistance, Biegner should not be disqualified from receiving unemployment benefits.