Barbara B. Thompson, Relator, vs. Dolphin Clerical Group, Respondent, Commissioner of Economic Security, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-02-1993

 

Barbara B. Thompson,

Relator,

 

vs.

 

Dolphin Clerical Group,

Respondent,

 

Commissioner of Economic Security,

Respondent.

 

Filed July 1, 2003 Reversed Parker, Judge*

 

Department of Economic Security

File No. 849002

 

Mary R. Vasaly, Elizabeth Snyder Poeschl, Maslon Edelman Borman & Brand, LLP, 3300 Wells Fargo Center, 90 South Seventh Street, Minneapolis, MN  55402-4140 (for relator)

 

Dolphin Clerical Group, TCG Incorporated, 258 Hennepin Avenue, Minneapolis, MN  55401-1995 (respondent)

 

Lee B. Nelson, Philip B. Byrne, Department of Economic Security, 390 North Robert Street, St. Paul, MN  55101 (for respondent commissioner)

 

            Considered and decided by Kalitowski, Presiding Judge, Schumacher, Judge, and Parker, Judge.

U N P U B L I S H E D   O P I N I O N

PARKER, Judge

Relator Barbara Thompson worked in a full-time permanent position with the same employer from 1973-1997.  In 1997, Thompson accepted a permanent full-time position as an executive assistant at MedAdvisor, Inc. (MedAdvisor).  While Thompson worked at MedAdvisor, she earned $42,000 per year, or $21 per hour.  In January 2001, Thompson was laid off from MedAdvisor.  She began searching in the southern metro area of Minneapolis for similar executive-assistant positions that were equivalent to her position at MedAdvisor.  After a few months without success, Thompson expanded her search by registering with Dolphin, a temporary staffing agency, and placement agencies.

            Dolphin employed Thompson from October 26, 2001, to March 14, 2002.  Dolphin assigned Thompson to work for Health Risk Management (HRM), which was located in the Edina/Bloomington area.  At HRM, Thompson worked as a full-time executive assistant, earning $14 per hour.  On February 6, 2002, Thompson called Dolphin to report that HRM was filing for bankruptcy and that her position would be secure only until March 2002.  Thompson called Dolphin two times in the two weeks prior to the end of her assignment at HRM and informed Dolphin that she was available for other full-time assignments in the south metro area.  On March 14, 2002, Thompson satisfactorily completed her assignment at HRM.  On April 7, 2002, Thompson established a benefit account for unemployment benefits with the Minnesota Department of Economic Security.

            After she submitted her unemployment application, Dolphin offered Thompson various temporary employment opportunities in both downtown Minneapolis and downtown St. Paul, all of which she rejected. 

Additionally, on April 10, 2002, April 19, 2002, and April 23, 2002, Dolphin left voice-mail messages for Thompson offering additional assignments.  Thompson was on vacation from April 19 through April 25, 2002, and did not receive the messages.  When she returned, she rejected these offers based on compensation, location, and because the "job offers were for either temporary or part time positions, or positions that required particularized knowledge."  Thompson also rejected offers of May 2 and May 9, 2002, for the same reasons.  On June 19, 2002, Thompson obtained a permanent position on her own as an executive secretary.

            On May 15, 2002, the department approved Thompson's application to receive unemployment benefits, and Dolphin appealed.  On July 17, 2002, an unemployment law judge conducted a hearing and upheld the department's decision but modified the initial determination, finding that: (1) during Thompson's vacation from April 19 through 25, 2002, she was unavailable for suitable employment since she was not actively seeking work; and (2) Thompson's rejection of the jobs offered by Dolphin did not disqualify her from benefits since the jobs were unsuitable because they were temporary, low-paying positions.

             Dolphin appealed this decision and the commissioner's representative reversed, finding that Thompson was disqualified from receiving unemployment benefits under Minn. Stat. § 268.085, subd. 8 (2002), because "on May 2, Thompson failed, without good cause, to accept an offer of suitable employment."

D E C I S I O N

            We review determinations of the Commissioner of Economic Security, not the referee (now termed unemployment law judge); the test on appeal is whether there is reasonable evidence in the record to sustain the commissioner.  Winkler v. Park Refuse Serv., Inc., 361 N.W.2d 120, 123 (Minn. App. 1985).  We must also view the commissioner's representative's findings in the light most favorable to the decision.  Beyer v. Heavy Duty Air, Inc., 393 N.W.2d 380, 382 (Minn. App. 1986).

            Because the commissioner's representative based her decision on the May 2 job offer, it is the sole offer at issue.  Eligibility for unemployment benefits is determined by statute.  The applicant must be (1) able to work; (2) available for suitable employment; and (3) actively seeking suitable employment.  Minn. Stat. § 268.085, subd. 1(2) (2002).  Availability for suitable employment is defined as constituting a willingness to accept suitable employment in the labor market.  Minn. Stat. § 268.085, subd. 15 (2002).  Although an applicant may restrict availability to suitable employment, the statute makes clear that "no other restrictions, either self-imposed or created by circumstances, temporary or permanent [can prevent acceptance] of suitable employment."  Id.  The applicant must also make reasonable and diligent efforts that an individual in similar circumstances would make if genuinely interested in obtaining suitable employment.  Minn. Stat. § 268.085, subd. 16 (2002).  Additionally, the applicant must not limit the search to positions that are unavailable, or above the applicant's training, experience, and qualifications.  Id.

            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).  Primary considerations in determining whether employment is suitable include whether the separation from employment is temporary or permanent and whether the applicant has favorable prospects of finding similar employment comparable to past wage rate within a reasonable period of time.  When compensation for the potential employment is lower than the applicant's former rate, "consideration must be given to the length of the applicant's unemployment and the proportion of difference in the rates."  Minn. Stat. § 268.035, subd. 23a(c). When assessing whether a job constitutes suitable employment, courts will look at an applicant's demonstrated work history and past employment patterns.  Mbong v. New Horizons Nursing, 608 N.W.2d 890, 893 (Minn. App. 2000).

            Thompson argues the May 2 offer was not suitable employment because: (1) the offer was for a temporary position when Thompson's work history consisted primarily of permanent positions; (2) the compensation was significantly lower than her previous permanent positions; and (3) the distance to the worksite from Thompson's residence in Eagan was unreasonable.

            Thompson's work history shows long periods of permanent employment.  Before her brief, temporary employment with HRM, Thompson worked in permanent, stable positions for over 27 years.  While not dispositive, this factor is an important consideration.  Next, we must consider the relative compensation, which is also an important factor.  Thompson's salary at MedAdvisor was $21 per hour.  The May 2 job offer that Thompson refused paid $13 per hour, which is an almost 40% decrease from her previous permanent salary.  The fact that Thompson chose to accept a temporary position earlier in her unemployment period does not change her legitimate expectation of compensation similar to what she earned for many years.  Finally, we must address the location issue.  The commissioner has a valid point that Thompson's rejection of jobs in downtown Minneapolis or St. Paul may be illegitimate in and of itself.  But that is not the case here.  Thompson was offered a temporary position at an almost 40% salary decrease.  In addition, this position would have forced her to incur significantly increased commuting and parking expenses.  Viewed in its totality, the May 2 offer did not constitute suitable employment and, therefore, Thompson's rejection does not disqualify her from benefits.

            Though of limited pertinence to disposition of the legal issue before us, it is interesting to note that subsequent events have proven that Thompson made the correct decision to reject the low-paying and temporary offer; shortly after rejecting this offer, she obtained a permanent position as an administrative secretary at her accustomed salary level and in the south metro area.

            Reversed.

 

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