*1 paid be retained premature the owner and at awards are this time and project the end at some later should also be reversed. of purpose retainage date. The of is to provide of money out which claims against owner has the contractor can be REVERSED. necessity collected without the of a law- agreed suit. is not damage It
damage limit. added). (emphasis
Id. at 428 In J. Stewart
Stein, (1980), Glossary Construction re-
tainage is defined as a sum withheld from payment
each to the contractor in accord-
ance with the terms of the owner-contrac- agreement.
tor Id. at 622. WETTERHAHN, Relator, Joan A.
We hold that the trial court erred as ordering a matter of law in A return of retainage P’s pur & at this time. Since a COMPANY, The KIMM Commissioner pose retainage to secure a fund Training, Respondents. money from which claims the owner against the contractor can be collected lawsuit, necessity without the of a Court of of Minnesota. fund payment must continue to exist potential against claims have A MPDC P& Hayes result its lawsuit with
Contractors.
Retainage security is a device and the possession
issue here is security of that correctly
fund. The trial court stated that
“esoteric, obligations” unmatured cannot against retainage
be set which is owed off absolutely. The analysis trial court’s setoff,
MPDC’s in terms of how-
ever, ignores retainage the basic notion security device hold a fund of
money payment available for of sums due
upon liability determination of on the coun-
terclaim. The as-yet liability undetermined genuine A P
of & is a issue of material fact
which forecloses an order payment retainage If pre- at this time. MPDC involving
vails Hayes matter Con-
tractors, retainage paid be then Thus, A premature P. it
trial retainage court to order that the
paid time, partial at this and the award of
summary judgment is reversed.
Ill P attorney’s trial court awarded &
fees and prejudgment interest. We find above, analysis
that based on our these
quate her from verbal by a harassment co-worker. unemployment benefits, hearing
compensation and a by Depart- conducted a referee from the Training. At the ment of Jobs and hear- ing, testified that her co-work- er, Varga, continuously Steve swore and employee yelled at her. Another former claim, testify- corroborated Wetterhahn’s Varga exploded temper ing that into tant- long, directing day usually rums all his anger towards Wetterhahn. complained
Wetterhahn testified that she foreman, Alex, her steward Ed to a union Boddy, production Kimm’s and Robert manager. She also raised the company meetings. According to Wetter- hahn, Boddy she was told that Whitelaw, Legal Aid Soc. of Min- John S. Varga, keep eye foreman would but
neapolis, Minneapolis, for relator. no other action was taken to solve the Co., Minneapolis, pro Kimm se. problem. Gen., III, Humphrey, Atty. Hubert H. Varga Alex testified that had caused Barone, Gen., Sp. Atty. St. James P. Asst. years. for 25 While Alex was trouble Paul, Training. for Comr. Jobs concerns, he ex aware Wetterhahn’s Heard, plained considered and decided of a formal absence he, NIERENGARTEN, P.J., grievance1, and LANSING there as union *, steward, could do. and IRVINE JJ. Boddy, production man- Robert
OPINION ager, aware of Var- admitted that he was behavior, him ga’s and met with twice to LANSING, Judge. Boddy he had no means discuss it. claimed representative behavior; curtailing Varga’s however he Training deter- stopped he could have testified that also voluntarily quit job mined that relator by applying Kimm’s Varga’s behavior to the re- cause attributable without Alex disciplinary procedure. graduated spondent employer. Relator seeks review Kimm could agreed that decision, claiming of the Commissioner’s have taken: as a result she had give [Varga] a verbal warn- [T]hey could employer. We re- harassment a fellow two-day, one-day suspension, ing, a verse. Those, three-day, then termination. company can do and has that is what the FACTS employees. done to employed by the Joan Wetterhahn hearing, the referee con- Following the Company packer. In Kimm November had failed to meet cluded that Wetterhahn resigned job, from her proving that she had her burden of claiming Kimm had failed to take ade- * to, by ap- were no other available Acting and because there of the Court of Const, pointment pursuant qualified. to Minn. art. which she was This was confirmed Alex. 1. Wetterhahn testified that she did not file grievance because she was warned
cause,
Kimm,
On
has
left
“due
factors or
appeal,
directly
af-
a Commissioner’s
circumstances
connected” with the
firmed, concluding
employment.
that Kimm
not re-
Helmin v.
Griswold Ribbon
sponsible
Typewriter,
(Minn.
did not treat &
*3
Ct.App.1984)
unreasonably
(quoting
v.
arbitrarily.
Hessler American
Co.,
541,
Television & Radio
258 Minn.
(I960)).
104
887
In
N.W.2d
Fer
ISSUE
guson Department
v.
Ser
Did the Commissioner’s
vices,
(Minn.1976),
247
895
N.W.2d
the su
by determining
err
that
harass-
preme
following
court cited the
test:
good
ment did not constitute
cause
compel
circumstances which
the de
[T]he
resign?
Wetterhahn to
real,
employment
cision to leave
must be
substantial,
not imaginary,
trifling,
not
ANALYSIS
reasonable,
whimsical;
not
voluntarily resigns
An individual who
compulsion produced
must be some
disqualified
from re-
is
extraneous and necessitous circumstanc
ceiving unemployment compensation bene-
es. The standard of what constitutes
fits
he or
prove
unless
she can
the
that
good
the
cause is
standard of reasonable
was with
cause attribut-
average
ness
to the
man or
able
to
the
woman,
supersensitive ***.
not
to the
1(a) (Supp.1987); Zepp
Inc.,
Chips,
Arthur Treacher Fish &
272
at 900
Id.
n. 5.
(Minn.1978).
N.W.2d 262
Harassment
a co-worker
consti
the
reviewing
good
quit
tute
to
the employer
cause
where
findings,
factual
this court is limited to
harassment,
had notice of the
but failed to
determining whether there is
rea
evidence
timely
appropriate
take
sonably
findings,
to sustain the
prevent
See,
Foods,
it.
McNabb v. Cub
352
viewing
the evidence in the
most fa
378
Corp.
Tru-Stone
the
vorable to
Metro
White v.
Gutzkow,
(Minn.Ct.App.
pany failed evidence court contains which complained on sever- fact that Wetterhahn supports the Commissioner’s Boddy’s al occasions. own admission procedure existed contradicts Kimm’s Viewed griev- that in the absence of a formal claim decision, did the record shows ance Wetterhahn there was Varga’s objectionable take to curb Kimm could do. meeting on at least behavior discussing occasions and two suggestion There is no record frequency with him. extent overly-sensitive the sit- Wetterhahn’s and the *4 uation; rather, indicated that were estab er’s offended largely by testimony nei lished which was language requested and several ther conclusive nor definitive. Under these there were no transfers. Because obtained circumstances, I would defer to the fact- available for which unique opportunity finder’s ineligible for transfer. qualified, she was credibility testimony. Ny of witness See promot- Finally, note that was 824; berg, 243 Minn. at “leadman.” While not ed to Wetterhahn’s Tumquist v. Amoco Oil 397 N.W.2d part management, actually a supervisory nature. appeal, I cannot conclude the record on employ- of an a section leader’s harassment proving her met her burden of There, employer. imputed cause attributa McNabb, relied on which held the court ble to See manager’s knowledge im- that a should be 1(a) (Supp.1987); Marz manager puted employer where the to an Services, 256 Department basically supervi- ‘first “performs level (Minn.1977); 287, 289 see also Lar managerial sory and function’.” Tru- Security, Economic son v. Stone, 352 at 383. (Minn.1979)(the em 281 N.W.2d duty employer to inform his ployee had a alleged harassment to allow the adequate situation; measures Kimm failed to take opportunity to correct the er an charged employer Wetterhahn from harassment could not be with co-worker; therefore, having employee’s termination caused informed). I good cause to the Commissioner’s would affirm Reversed. NIERENGARTEN, J., dissents.
NIERENGARTEN, dissenting. Judge, Although may I respectfully
I dissent. the decision of the referee I representative, and the Commissioner’s Minnesota, Hassan STATE stan affirm the “narrow would because Township, Respondent, requires appeal dard of review” the Commissioner’s factu court to defer to MASLOSKI, Petitioner. Lane Andrew al Co. See Gorecki, also, Nyberg v. R.N. Cardozo & Broth
see Appeals Minnesota. Court 361, 364, er, Inc., 243 Minn. (1954). findings The Commissioner’s reviewed and cannot be disturbed “if to the decision to sus
there is evidence