Seyfudin K. Tolla, Relator, vs. Spherion Pacific Enterprises, LLC, Respondent, Commissioner of Employment and Economic Development, 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This opinion will be unpublished and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

A03-1220

 

Seyfudin K. Tolla,

Relator,

 

vs.

 

Spherion Pacific Enterprises, LLC,

Respondent,

 

Commissioner of Employment and Economic Development,

Respondent.

 

Filed July 20, 2004

Affirmed

Gordon W. Shumaker, Judge

 

Department of Employment and Economic Development

File No. 5019 03

 

 

 

Seyfudin K. Tolla, 286 Arlington Avenue West, Apartment 303, St. Paul, MN 55117-4305 (pro se relator)

 

Spherion Pacific Enterprises, LLC, Roseville Location, P.O. Box 182366, Columbus, Ohio 43218-2366 (respondent)

 

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

 

            Considered and decided by Shumaker, Presiding Judge; Peterson, Judge; and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N

 

GORDON W. SHUMAKER,Judge

 

            Relator challenges the commissioner's representative's determination that he quit his job without good cause attributable to his employer and was, therefore, disqualified from receiving unemployment benefits.  Because relator had an opportunity to raise the issues on appeal during an evidentiary hearing but failed to do so, and because the record supports the commissioner's representative's decision, we affirm.

FACTS

 

            Respondent Spherion Pacific Enterprises, LLC employed relator Seyfudin Tolla as a temporary worker to load and unload trailers for R.R. Donnelley, a Spherion client.  When Tolla began his employment, he acknowledged in writing the statutory provision that, without good cause, his failure to request additional work after the completion of his temporary assignment would be considered a voluntary termination of his employment.  Minn. Stat. § 268.095, subd. 2(d) (2002).

Because he had received unfavorable performance reviews from both Spherion and R.R. Donnelly, Spherion laid Tolla off on January 6, 2003.  Tolla did not ask for further work but rather applied for unemployment benefits.

The Minnesota Department of Employment and Economic Development determined that Tolla was eligible for benefits.  Spherion appealed and an unemployment law judge held an evidentiary hearing.  Tolla did not attend the hearing, and the judge found that Tolla had voluntarily quit his employment.

Tolla made a "telephone appeal" and followed up with a letter indicating the grounds of his appeal.  Although he asserts that he is a refugee who has a "low level of English language proficiency" and that he learned of the unemployment law judge's decision "long after the ‘hearing date,'" he offers no reason for his failure to attend the evidentiary hearing.  Thus, the record before the unemployment law judge and before the commissioner's representative showed that Tolla failed to request a further assignment after Tolla's temporary job ended.

D E C I S I O N

 

On appeal, relator Seyfudin K. Tolla argues that the commissioner's representative's decision should be reversed because (1) he asked if there was more work available when his employer called to tell him his job ended, (2) he did not receive notice of the hearing, and (3) he speaks very little English.  Respondent Spherion argues that these issues were not properly before the commissioner's representative.  We agree.

Whether an employee is disqualified from receipt of unemployment benefits is a question of law, which this court reviews de novo.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).  This court defers to the factual determinations of the commissioner's representative if they are reasonably supported by evidence in the record.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  This court must defer to the commissioner's representative's ability to weigh the evidence and make credibility determinations and may not weigh that evidence on review.  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).  "Upon de novo review, the commissioner shall, on the basis of that evidence submitted at the hearing [before the unemployment law judge], make findings of fact and decision, or remand the matter back to an unemployment law judge for the taking of additional evidence and the making of new findings and decision based on all the evidence."  Minn. Stat. § 268.105, subd. 2(c) (2002).  "The commissioner shall not, except for purposes of deciding whether to remand a matter to an unemployment law judge for a further evidentiary hearing, consider any evidence that was not submitted at the hearing before the unemployment law judge."  Id. at subd. 2(d) (2002). 

"An applicant who quit employment shall be ineligible for all unemployment benefits."  Minn. Stat. § 268.095, subd. 1 (Supp. 2003).  When, as here, an applicant is employed through a staffing service, the applicant is determined to have quit based on the following statutory provision:

An applicant who, within five calendar days after completion of a suitable temporary job assignment from a staffing service employer, . . . fails without good cause to affirmatively request an additional job assignment . . . shall be considered to have quit employment. 

 

This paragraph shall apply only if, at the time of beginning of employment with the staffing service employer, the applicant signed and was provided a copy of a separate document written in clear and concise language that informed the applicant of this paragraph and that unemployment benefits may be affected.

 

For purposes of this paragraph, "good cause" shall be a reason that is significant and would compel an average, reasonable worker, who would otherwise want an additional temporary job assignment with the staffing service employer, (1) to fail to contact the staffing service employer, or (2) to refuse an offered assignment.

 

For purposes of this paragraph, a "staffing service employer" is an employer whose business involves employing individuals directly for the purpose of furnishing temporary job assignment workers to clients of the staffing service.

 

Minn. Stat. § 268.095, subd. 2(d) (Supp. 2003). 

There is nothing in the record to show Tolla affirmatively requested an additional job assignment.  There is also nothing in the record to show that Tolla had good cause to fail to contact Spherion for additional job assignments.  The record does show that Tolla signed an agreement on April 25, 2001, which states:

Minnesota Unemployment law requires an employee to seek additional work from his/her employer upon completion of an assignment. 

Failure to seek subsequent work upon completion of assignment will be considered a voluntary quit or not available for work [and] could result in denial of unemployment benefits.

 

            Thus, the commissioner's decision that "Tolla quit employment with Spherion [and] [n]o exception to disqualification applies" is reasonably supported by the record.  In addition, Tolla signed and was provided a copy of a separate document written in clear and concise language that informed him of the statute and that unemployment benefits may be affected.  Thus, we affirm the commissioner's representative's decision that Tolla is disqualified from unemployment benefits.

            Affirmed.