This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat.§ 480A.08, subd. 3 (1994).


STATE OF MINNESOTA
IN COURT OF APPEALS
C0-96-417


Kim I. Cole,
Respondent,

vs.

St. Joseph Gas & Bait,
Relator,

Commissioner of Economic Security,
Respondent.


Filed August 13, 1996
Affirmed 
Schultz, Judge*


Department of Economic Security
U N P U B L I S H E D   O P I N I O N

SCHULTZ, Judge
	Relator St. Joseph's Gas & Bait (the employer) appeals the 
Commissioner's determination that Kim I. Cole quit her 
employment as a manager for good cause attributable to the 
employer.  We affirm.

FACTS

	In April of 1993, Cole met Mike Deutz, the owner of St. 
Joseph's Gas & Bait, at a nightclub in St. Cloud.  A few days later, 
Cole began working for Deutz.  Both Deutz and Cole testified they 
had a sexual relationship for a time after Cole began work.  Cole 
testified that almost every time she worked, Deutz would slap or 
pinch her buttocks, tell her how nice she looked and treat her much 
better than other employees, and that Deutz often brought her back 
to the coolers in the store and "came on to her" while working.
	Cole testified Deutz continued to fondle her in the store, 
although she always told Deutz to "quit it."  Cole testified the 
sexual contact by Deutz (slapping, pinching and fondling) ended in 
January of 1995 when she developed a decisive attitude toward 
Deutz, keeping him at a distance and refusing to see him outside 
the workplace.
	Cole testified that things were so bad between her and 
Deutz that she was afraid to come to work and felt sick when his 
car pulled into the parking lot at the store.  On August 3, 1995, she 
began experiencing migraine headaches from the tension at work.  
She went to the doctor, who prescribed a muscle relaxer and 
something for her headaches.  On August 9, 1995, Cole quit her 
job.
	Deutz testified he never touched Cole at work, never pulled 
her into the cooler, and basically had no inappropriate contact with 
her.  He testified Cole was a very poor manager in 1995 because 
she did not work enough to manage the store properly, and that he 
talked to Cole sternly a few times when shifts were not covered or 
when the cash registers were short, but did not yell at her at any 
time.  He testified that in the last month Cole worked at the store, 
she missed several days of work by calling in sick and several 
customers complained to him that she was rude to them.
	Cole filed a claim for reemployment insurance and a claims 
deputy denied her request.  Cole appealed to a reemployment 
insurance judge.  After hearing all the testimony, the judge 
disqualified Cole from receiving reemployment insurance because 
she found Cole quit her job without good cause attributable to the 
employer.  Cole appealed the judge's decision to the Commissioner 
of Economic Security pursuant to Minn. Stat. § 268.105, subd. 3 
(1994).  Based upon his review of the evidence, the 
Commissioner's representative concluded Cole voluntarily 
separated from her employment with good cause attributable to the 
employer, and was entitled to receive reemployment insurance 
benefits.

D E C I S I O N

	On review from a decision of the Commissioner's 
representative, the standard is whether the evidence is sufficient to 
sustain the Commissioner's findings, viewing the evidence in the 
light most favorable to the findings.  Ress v. Abbott Northwestern 
Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).  Where the issue 
involves a legal determination, however, the court need not defer 
to the Commissioner.  Id.  This court reviews the decision of the 
Commissioner's representative rather than that of the 
reemployment insurance judge even on issues of credibility.  Tuff 
v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  Minnesota 
law authorizes the Commissioner to affirm, modify, or set aside 
any finding of fact or decision of the reemployment insurance 
judge on the basis of properly submitted evidence.  Minn. Stat. § 
268.10, subd. 5 (1994).  
	If an employee voluntarily quits her employment, but can 
show "good cause attributable to the employer," the employee is 
not disqualified from receiving benefits.  Minn. Stat. § 268.09, 
subd. 1(a).  Whether an employee had good cause to quit is a 
question of law.  Porrazzo v. Nabisco, Inc., 360 N.W.2d 662, 664 
(Minn. App. 1985).  Good cause to quit has been defined as a 
reason that is compelling, substantial and reasonable, not 
imaginary, trifling or whimsical.  Ferguson v. Department of 
Employment Servs., 311 Minn. 34, 44 n.5, 247 N.W.2d 895, 900 
n.5 (1976).  The reason cannot be attributable to the employee.  Id. 
 The legislature has specifically provided that good cause to quit 
includes sexual harassment.  Minn. Stat. § 268.09, subd. 1(a); see 
also Tru-Stone Corp. v. Gutzkow, 400 N.W.2d 836, 838 (Minn. 
App. 1987) (good cause may be established where the employee 
has been subjected to harassment).  An employee must complain 
about offensive conditions and give the employer an opportunity to 
correct the problem.  Heaser v. Lerch, Bates & Assocs., 467 
N.W.2d 833, 835 (Minn. App. 1991).
	Here, Cole's testimony and written statement support the 
decision of the Commissioner's representative.  Deutz's testimony, 
however, would clearly support the opposite conclusion, that Cole 
was not subjected to unreasonable or harassing work conditions.  
The question here turns solely on witness credibility.  Taking the 
findings of the Commissioner's representative that have support in 
the record, we conclude Cole had a compelling, substantial, and 
reasonable reason to leave her employment that was attributable to 
the employer.  Additionally, because the harassing conduct 
allegedly was done by the owner, the employer had notice of the 
conduct, should have known it was harassing, and had an 
opportunity to put an end to such conduct prior to Cole's decision 
to quit.

	Affirmed.





     * Retired judge of the district court, serving as judge of the Minnesota Court of 
Appeals by appointment pursuant to Minn. Const. art. VI, § 10.