Jillian K. McClure, Relator, vs. Northwest Airlines, Inc., Respondent, Commissioner of Employment and Economic Development, Respondent.

This opinion will be unpublished and

 may not be cited exceptas provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1261

 

Jillian K. McClure,
Relator,
 
vs.
 
Northwest Airlines, Inc.,
Respondent,

Commissioner of Employment and Economic Development,
Respondent.

 

Filed June 8, 2004 Affirmed Peterson, Judge

 

Department of Employment and Economic Development

File No. 683903

 

Jillian K. McClure, 17418 Inland Loop, Lakeville, MN  55044-5618 (pro se relator)

 

Northwest Airlines, Inc., Minneapolis Airport & Foreign Countries, c/o Talx UCM Services Inc., PO Box 282, St. Louis, MS 643166-0283 (respondent)

 

Lee B. Nelson, M. Kate Chaffee, Minnesota Department of Employment and Economic Development, 390 Robert Street North, St. Paul, MN  55101 (for respondent Commissioner of Employment and Economic Development)

 

            Considered and decided by Peterson, Presiding Judge; Anderson, Judge; and Crippen, Judge.*

U N P U B L I S H E D    O P I N I O N

PETERSON, Judge

            In this certiorari appeal from a decision of a representative of respondent Commissioner of Employment and Economic Development, relator challenges the determination that she is ineligible to receive unemployment benefits while she was on a voluntary leave of absence.  We affirm.

FACTS

            Relator Jillian K. McClure works as a full-time equipment service employee for respondent-employer Northwest Airlines, Inc.  Northwest asked relator if she wanted to participate in the company's "slip leave" program, which is a voluntary leave-of-absence program designed to offer more senior employees the option of taking a voluntary leave to avoid or minimize the company's need to lay off more junior employees.  Relator chose to participate in the program for the period from April 1, 2003, through June 6, 2003. 

            Relator applied for unemployment benefits, and the Department of Employment and Economic Development determined that she was ineligible to receive benefits because she was on a voluntary leave of absence.  Relator appealed, and a hearing was held before an unemployment law judge (ULJ).  Northwest did not participate in the hearing.

When asked why she chose to participate in the leave program, relator testified:

            I, well ‘cause one[,] I thought we were gonna get unemployment, two, I don't need the medical benefits as much because my husband covers me, no medical and dental benefits didn't affect me that much.  And I wanted the time off, it was nice, it was getting to be spring, I get weekends off. I would assume that the unemployment benefit would be paid.

 

Relator testified that before she volunteered for the leave program, she was told by a Northwest manager that the company would not contest unemployment benefits, and relator assumed she would be paid unemployment benefits.  There is no dispute that relator chose to participate in the program, and she testified that work was available to her during the leave period.

The ULJ affirmed that relator was not eligible to receive unemployment benefits because relator was on a voluntary leave of absence. Relator appealed to the representative of the commissioner.  The commissioner's representative affirmed the ULJ.  This certiorari appeal followed.

D E C I S I O N

Decisions of the commissioner's representative are accorded "particular deference." Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  The factual findings of the commissioner's representative are "viewed in the light most favorable to the decision, and if there is evidence reasonably tending to sustain them, they will not be disturbed."  White v. Metro. Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983).  While this court defers to the commissioner's findings of fact if they are reasonably supported by the evidence in the record, the court exercises its independent judgment with respect to questions of law.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).  "An applicant's entitlement to unemployment benefits shall be determined based upon that information available without regard to any common law burden of proof. . . . There shall be no presumption of entitlement or nonentitlement to unemployment benefits."  Minn. Stat. § 268.069, subd. 2 (2002).  But, all issues of fact "shall be determined by a preponderance of the evidence," which "means evidence in substantiation of a fact that, when weighed against the evidence opposing the fact, is more convincing and has a greater probability of truth."  Minn. Stat. § 268.03, subd. 2 (2002).

 "An applicant on a voluntary leave of absence shall be ineligible for benefits for the duration of the leave of absence."  Minn. Stat. § 268.085, subd. 13a(a) (2002).  "A leave of absence is voluntary when work that the applicant can then perform is available with the applicant's employer but the applicant chooses not to work."  Id.

The commissioner's representative found that relator was on a voluntary leave of absence from April 1, 2003, through June 6, 2003.  There is evidence that reasonably tends to sustain the commissioner's representative's findings that relator was on a voluntary leave of absence from April 1, 2003, through June 6, 2003, and could have continued working if she had not volunteered for the leave of absence.

Relator claims on appeal that she was deceived into taking a leave of absence because a Northwest manager told her that Northwest would not contest her receipt of unemployment benefits.  Relator appears to be arguing that Northwest's failure to abide by this alleged representation entitles her to unemployment benefits.  But relator cites no authority for this argument.  An assignment of error based on mere assertion and not supported by argument or authority is waived unless prejudicial error is obvious on mere inspection.  State by Humphrey v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997).  No prejudicial error is obvious here.

Furthermore, an applicant for unemployment benefits seeks state funds, not employer funds.  Minn. Stat. § 268.069, subd. 2 (stating unemployment benefits are paid from state funds and shall not be considered paid by an employer).  It is the responsibility of the department, not the employer, to determine an individual's entitlement to unemployment benefits.  Id.  "[A]ny agreement between an applicant and an employer shall not be binding on the commissioner in determining an applicant's entitlement."  Id.

            Affirmed.

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