Raymond Hebzinski, Jr., Relator, vs. Department of Employment and Economic Development, Respondent.

Raymond Hebzinski, Jr., Relator, vs. Department of Employment and Economic Development, Respondent. A05-1099, Court of Appeals Unpublished, May 9, 2006.

This opinion will be unpublished and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

A05-1099

 

Raymond Hebzinski, Jr.,
Relator,
 
vs.
 
Department of Employment and Economic Development,
Respondent.

 

Filed May 9, 2006

Affirmed

Minge, Judge

 

Department of Employment and Economic Development

File No. 4350 05

 

 

Howard L. Bolter, Borkon, Ramstead, Mariani, Fishman & Carp, Ltd., Suite 100, Parkdale I, 5401 Gamble Drive, Minneapolis, MN 55416-1552 (for relator)

 

Linda Holmes, Department of Employment and Economic Development, First National Bank Building, 332 Minnesota Street, Suite E200, St. Paul, MN 55101-1351 (for respondent)

 

            Considered and decided by Randall, Presiding Judge; Minge, Judge; and Ross, Judge.

U N P U B L I S H E D  O P I N I O N

 

MINGE, Judge

            Relator challenges the decision of the SURJ that he was ineligible for unemployment benefits because he was not available for suitable employment or actively seeking suitable employment.  We affirm.

FACTS

            Universal Spray & Drywall (Universal Drywall) terminated relator Raymond Hebzinski, Jr. (Hebzinski) on July 5, 2004.  A Department of Employment and Economic Development (DEED) adjudicator determined that Hebzinski was ineligible for unemployment benefits because he was not available for and not actively seeking suitable employment.  The unemployment law judge (ULJ) affirmed DEED's adjudicator.  Hebzinski appealed, and the Senior Unemployment Review Judge (SURJ)[1] found that no determinative facts were in dispute and adopted the findings of fact and decision of the ULJ as DEED's final decision.[2]

            Hebzinski worked as a truck driver and spray technician for Universal Drywall from 1994 through July 5, 2004.  After being laid off, Hebzinski applied for and received unemployment benefits.  In March 2005, Hebzinski completed a DEED questionnaire regarding his efforts to find employment.  His responses indicated that he had applied for one job a month from November 2004 through January 2005.  After verifying that Hebzinski was able to work with medical restrictions, a DEED adjudicator determined that Hebzinski's work search was inadequate and that he was ineligible for unemployment benefits.

            At the de novo evidentiary hearing before the ULJ, Hebzinski offered additional evidence of his efforts to find work in drywall, maintenance, or as a forklift or truck driver.  He named or described a number of potential employers he contacted between November 2004 and April 2005.  Hebzinski explained that he sought employment based on "whatever [he found] in the paper" and that his daughter had obtained "a couple" of job leads for him "off the computer."  The SURJ adopted the ULJ's finding that Hebzinski had applied for approximately ten positions during the period from November of 2004 through early April of 2005 and determined that this was insufficient to continue receiving unemployment benefits because numerous jobs in his field should have been available.  Hebzinski brought a certiorari appeal to this court.

D E C I S I O N

            The issue in this case is whether the SURJ erred in determining that Hebzinski was ineligible for unemployment benefits.  On appeal, this court reviews the decision by the SURJ.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  If the SURJ adopts the findings of the ULJ, this court's review will focus on the decision made by the ULJ.  Jenkins v. Am. Express Fin. Corp., 702 N.W.2d 908, 912 & n.5 (Minn. App. 2005).  An applicant bears the burden of proving that he is eligible for unemployment benefits.  Mueller v. Comm'r of Econ. Sec., 633 N.W.2d 91, 92 (Minn. App. 2001).   When the facts are not disputed, this court will review the application of law to the facts de novo.  Farmington Twp. v. High Plains Coop., 460 N.W.2d 56, 58 (Minn. App. 1990). [3]

            An applicant is eligible for unemployment benefits only if he "was available for suitable employment, and was actively seeking suitable employment."  Minn. Stat. § 268.085, subd. 1(2) (2004).  An applicant is "available for suitable employment" if he has a genuine attachment to the work force.  Id., subd. 15(a) (2004).  To be considered "actively seeking suitable employment," an applicant must make "those reasonable, diligent efforts an individual in similar circumstances would make if genuinely interested in obtaining suitable employment under the existing conditions in the labor market area."  Id., subd. 16(a) (2004).  An applicant may receive benefits for any week the applicant meets these eligibility requirements.  Id., subd. 1.

            The question in our case is whether Hebzinski was actively seeking employment.  This issue has been considered in several cases.  The supreme court determined that regularly reading newspaper and journal advertisements, conducting a single search of a job data bank, and applying for only two or three positions in three months, is not actively seeking employment.  Monson v. Minnesota Dep't of Employment Servs., 262 N.W.2d 171, 172 (Minn. 1978).  Similarly, making four job contacts in three weeks, all by phone, constitutes an inadequate job search.  James v. Comm'r of Econ. Sec., 354 N.W.2d 840, 844 (Minn. App. 1984), review denied (Minn. Dec. 20, 1984); see also Pyeatt v. State, Dep't of Employment Servs., 263 N.W.2d 394, 395 (Minn. 1978) (applying for six or seven positions in eight months was inadequate job search).  In contrast, when the applicant had made "multiple telephone and in-person ‘networking' contacts with five prospective employers [two of whom represented more than 100 publications,] . . . had formal interviews with one employer," and attempted to become self-employed, the applicant was actively seeking employment.  Decker v. City Pages, Inc., 540 N.W.2d 544, 549-50 (Minn. App. 1995), superseded by rule on other grounds by Mueller v. Comm'r of Econ. Sec., 633 N.W.2d 91 (Minn. App. 2001).

            Here, Hebzinski was able to work with medical restrictions. [4]  Hebzinski's work search consisted of reading newspaper advertisements, applying for one or two jobs a month, contacting his former employer, and conducting a one-time search of an electronic employment database.  The SURJ found that he sought employment in fields where opportunities do not appear to be as limited as this scant search would suggest.  Therefore, the SURJ did not err in concluding that these acts did not represent the reasonable, diligent efforts required of an active work search.  See Monson, 262 N.W.2d at 172; James, 354 N.W.2d at 844.  We conclude that the SURJ did not err in determining that Hebzinski lacked a genuine attachment to the workforce, which rendered him ineligible for unemployment benefits.

            Finally, we consider whether the determination by the SURJ that numerous positions should be available in the fields of driving and maintenance is erroneous.  The statute defines "actively seeking suitable employment" with reference to "the existing conditions in the labor market area."  Minn. Stat. § 268.085, subd. 16(a).  Hebzinski calls our attention to the Decker decision, in which this court struck an unsupported presumption made by the SURJ.  Decker,540 N.W.2d at 549.  But the unsupported finding in Decker dealt with the claimant's specific job-search efforts, not a description of generally prevailing market conditions.  Id.  As a reference to the general market, we conclude that absent any job-market evidence to the contrary, this general market determination by the SURJ is not erroneous.

            Affirmed.

[1] Effective August 1, 2004, the statutory title of the individual conducting review proceedings under Minn. Stat. § 268.105, subd. 2 (2004), was changed to "senior unemployment review judge."  Compare Minn. Stat. § 268.105, subd. 2 (2004), with Minn. Stat. § 268.105, subd. 2 (2002) (referring to the representative of the commissioner).

[2] SURJ may adopt the findings and decision of the ULJ as DEED's final determination.  Minn. Stat. § 268.105, subd. 2a(a) (2004).

[3] We note that Hebzinski asserts that he applied for more than ten jobs.  Because the SURJ did not make an express finding on quantity, but rather determined that Hebzinski applied for "approximately ten positions" during the relevant time period, we do not consider this to be a sufficient discrepancy to create an issue of fact in this case.

[4] An applicant may restrict himself to "suitable" employment, which considers the relative "degree of risk involved to the health and safety" of the applicant.  Minn. Stat. §§ 268.035, subd. 23a (2004), .085, subd. 15(a).