Africa A. Bulbula, Relator, vs. Abby Blu Inc., Respondent, Commissioner of Employment and Economic Development, Respondent.

Africa A. Bulbula, Relator, vs. Abby Blu Inc., Respondent, Commissioner of Employment and Economic Development, Respondent. A04-1219, Court of Appeals Unpublished, April 19, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1219

 

Africa A. Bulbula,

Relator,

 

vs.

 

Abby Blu Inc.,

Respondent,

 

Commissioner of Employment and Economic Development,

Respondent.

 

Filed April 19, 2005

Affirmed

Kalitowski, Judge

 

Department of Employment and Economic Development

File No. 2202 04

 

Geoffrey Larson, 5100 York Avenue South, Minneapolis, MN 55410 (for relator)

 

T. Michael Kilbury, Peterson, Logren & Kilbury, P.A., 315 Wright Building, 2233 University Avenue West, St. Paul, MN 55114-1629 (for respondent Abby Blu)

 

Lee B. Nelson, Linda A. Holmes, Department of Employment and Economic Development, E200 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for respondent Commissioner of Employment and Economic Development)

 

            Considered and decided by Kalitowski, Presiding Judge; Klaphake, Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Relator Africa A. Bulbula challenges the determination of the commissioner's representative that she is ineligible for unemployment benefits because without good cause she failed to accept suitable employment when offered.  We affirm.

D E C I S I O N

 

            "We review the commissioner's factual findings in the light most favorable to the commissioner's decision and will not disturb them as long as there is evidence that reasonably tends to sustain those findings."  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  We generally defer to the commissioner's representative's factual findings, but we exercise independent judgment with respect to questions of law.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

            An applicant for unemployment benefits "[is disqualified from] all unemployment benefits if the applicant, without good cause . . . failed to accept suitable employment when offered."  Minn. Stat. § 268.095, subd. 8(a)(2) (Supp. 2003). [1]   "Good cause" is defined by statute as "a reason that would cause a reasonable individual who wants suitable employment to fail to apply for, accept, or avoid suitable employment."  Id. at subd. 8(b) (Supp. 2003).  "Suitable employment" is defined as "employment in the applicant's labor market area that is reasonably related to the applicant's qualifications."  Minn. Stat. § 268.035, subd. 23a (2002).

            Relator did not attend the evidentiary hearing before the unemployment law judge (ULJ) and claims she did not receive notice of the hearing because it was sent to a post office box that she rarely checks.  Representatives of respondent Abby Blu appeared before the ULJ and presented evidence.  Respondent's representatives testified that relator separated from her employment due to lack of work, but called respondent to inquire whether they had work a few days later.  An assistant manager informed her there was no work.  The day after the assistant manager told relator there was no work, she called relator and offered relator a clerical job working a day shift.  Relator turned down that offer allegedly stating that because she was a student she was not available to work until 3 p.m. 

            Based on the evidence presented, the ULJ determined that (1) on November 21, 2003, relator was discharged for reasons other than employment misconduct and that she was not disqualified; and (2) on November 25, 2003, without good cause, relator failed to accept suitable employment when offered.  The ULJ concluded relator was disqualified from benefits. 

            Relator appealed to the commissioner's representative and submitted written arguments with additional evidence for consideration.  Based on the record submitted to the ULJ and the written arguments, the commissioner's representative affirmed the ULJ's decision disqualifying appellant because she failed to accept an offer of suitable employment without good cause.  See Minn. Stat. § 268.095, subd. 8(a)(2).

            Relator argues that additional facts she submitted to the commissioner's representative militate against the commissioner's representative's findings and conclusions of law.  But by administrative rule governing the evidence-taking procedure at unemployment hearings, relator's factual arguments to the commissioner's representative were untimely because "[o]nly evidence received into the record of any hearing may be considered by the referee."  Minn. R. 3310.2922 (2003); see also Minn. Stat. § 268.105, subd. 1(b), (c) (2002) (authorizing the department to adopt rules for evidence gathering at hearings and noting that "[a]fter the conclusion of the hearing, upon the evidence obtained, the unemployment law judge shall make findings of fact and decision . . ."). 

            And on review, the commissioner's representative does not take new evidence.  Rather, the commissioner's representative, "shall, on the basis of that evidence submitted at the evidentiary hearing under subdivision 1, make findings of fact and decision, or remand . . . ."  Minn. Stat. § 268.105, subd. 2(c) (2002).  The court of appeals reviews only the commissioner's representative's decision.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  Therefore, we cannot expand the record on appeal by considering additional facts.  And based on the record submitted to the ULJ, the evidence reasonably supports the findings of the commissioner's representative.

            Relator also argues that she should not have been denied benefits because she did not receive effective notice under Minn. Stat. § 268.095, subd. 2 (Supp. 2003).  But both the commissioner's representative and the ULJ agreed that relator did not receive effective notice under subdivision 2.  However, relator was disqualified under subdivision 8, which does not have a notice requirement.  The ultimate determination of whether an employee is disqualified from receipt of unemployment benefits is a question of law that this court reviews de novo.  Ress, 448 N.W.2d at 523.  Subdivision 2 of Minn. Stat. § 268.095 contains an exception to disqualification that applies if the applicant for benefits did not receive adequate notice by the employer.  But the statute explicitly limits the exception to "[t]his paragraph."  Id.  An applicant must still meet the requirements of subdivision 8 to qualify for benefits.  See id. at subd. 8(a) (Supp. 2003).  Therefore, the commissioner's representative did not err in determining that relator was disqualified from benefits based on the evidence that she refused an offer of suitable employment without good cause.

            Affirmed.

[1] The revisor's office inadvertently substituted the term "ineligible for" for the term "disqualified from" in Minn. Stat. § 268.095, subds. 1, 4, 7, 8(a) (Supp. 2003).  See Minn. Stat. § 268.095, subds. 1, 4, 7, 8(a) (2002) (using term "disqualified from"); 2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, § 11 (making other changes to Minn. Stat. § 268.095, subd. 1, but retaining term "disqualified from"); 2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, § 20(j), (k) (directing revisor to change the term "disqualified from" to "ineligible for" only in Minn. Stat. § 268.095, subd. 12, and then to renumber to Minn. Stat. § 268.085, subd. 13b).  The revisor has updated the statutes for 2004 to correct the error.