Department of Employment and Economic Development File No. 18857 03
1. When an employer-owner repeatedly grabs an employee's hips, brushes up against her from behind and, on one occasion, squeezes the employee's buttocks, the employer has engaged in sexual harassment as defined by Minn. Stat. § 268.095, subd. 3(e)(3) (Supp. 2003).
2. When an employer-owner sexually harasses an employee in a patently offensive manner, the employee need not complain to the employer or wait for the employer to take timely and appropriate action to stop the conduct in order to establish that the employee quit because of a good reason caused by the employer.
The opinion of the court was delivered by: Wright, Judge
Considered and decided by Minge, Presiding Judge; Wright, Judge; and Poritsky, Judge.*fn1
Relator challenges the decision of the commissioner's representative that respondent-employee quit her employment with good reason attributable to the employer and is, therefore, entitled to receive unemployment benefits. Relator argues that (a) the evidence does not support the finding that the employer-owner engaged in sexual harassment; (b) the employee did not properly notify the employer of the harassment; and (c) even if the employee's notification were proper, the employer took timely and appropriate action to stop the harassing conduct. We affirm.
Respondent Jacki Cook was employed by relator Munro Holding, LLC (Munro Holding) as a waitress from July 20, 2003, through October 8, 2003.*fn2 Munro Holding is owned by Pat Munro.
According to Cook, about once a week throughout her employment, employer-owner Munro grabbed her hips from behind and brushed against her while she was working. Munro did so even when there was sufficient space to pass Cook without touching her. Although Munro touched Cook in this manner at least eleven times, Cook neither confronted Munro nor informed a supervisor about Munro's conduct at the time it occurred.
On October 6, 2003, Cook was taking food from the pick-up station to serve a customer when Munro came up behind her and "grabbed [her] butt" by placing both palms on her buttocks and squeezing. On this occasion, Cook immediately told the cook who was standing nearby that Munro had grabbed her and that if Munro touched her again, she would quit. The cook reported the incident to the head cook, who phoned the kitchen manager, Debra Duffee, at home to relay Cook's complaint.
Duffee returned to the restaurant later that evening and spoke directly with Cook about the incident. Cook told Duffee that Munro had grabbed her buttocks that night, that he had intentionally grabbed her hips on several prior occasions, and that Munro's behavior made her very uncomfortable. Duffee responded that Munro was "just a very touchy-feely guy" and that "he didn't mean anything by it." According to Cook, Duffee also admitted that Munro had slapped her buttocks before, that other female servers had complained about Munro's conduct, and that she had previously "warned" Munro about his behavior. Duffee then offered to speak with Munro on Cook's behalf.
The next day, Cook called the head waitress, seeking a substitute to take her shift. Cook told the head waitress about Munro's actions the day before and her discussion with Duffee. During their conversation, Cook expressed concern that Duffee was not taking her complaint seriously. The head waitress relayed to Duffee that Cook was frustrated by Duffee's reaction to the alleged harassment. When Duffee called Cook to discuss their options for confronting Munro about his behavior, Cook advised ...