Olubunmi A. Olabiyi, Relator, vs. Evangelical Lutheran Good Samaritan Society, Respondent, Department of Employment and Economic Development, Respondent.

Olubunmi A. Olabiyi, Relator, vs. Evangelical Lutheran Good Samaritan Society, Respondent, Department of Employment and Economic Development, Respondent. A06-1241, Court of Appeals Unpublished, July 24, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1241

 

Olubunmi A. Olabiyi,
Relator,
 
vs.
 
Evangelical Lutheran Good Samaritan Society,
Respondent,
 
Department of Employment and Economic Development,
Respondent.

 

Filed July 24, 2007

Affirmed

Minge, Judge

 

Department of Employment and Economic Development

File No. 5847 06

 

 

Olubunmi A. Olabiyi, 6219 Quail Avenue North, Brooklyn Center, MN 55429 (pro se relator)

 

The Evangelical Lutheran Good Samaritan Society, c/o TALX UCM Services, Inc., P.O. Box 283, St. Louis, MO 63166 (respondent employer)

 

Lee B. Nelson, Linda A. Holmes, First National Bank Building, 332 Minnesota Street, Suite E200, St. Paul, MN 55101 (for respondent department)

 

            Considered and decided by Kalitowski, Presiding Judge; Minge, Judge; and Wright, Judge.

U N P U B L I S H E D  O P I N I O N

 

MINGE, Judge

            Relator challenges the determination of the unemployment law judge (ULJ) that because she was not "actively seeking suitable employment," she is ineligible for unemployment benefits.  We affirm. 

FACTS

 

            Relator Olubunmi Olabiyi was employed as a nursing assistant at Ambassador Good Samaritan Center (Center) in New Hope from March 31, 2005 until her leave of absence took effect on April 3, 2006.  This facility is owned and operated by respondent Evangelical Lutheran Good Samaritan Society (Society). 

            In March 2006, relator brought a physician's note to work, indicating that she could not lift more than 40 pounds due to her pregnancy.  The Center modified relator's job duties to comply with her lifting restrictions.  A few weeks later, relator brought a second physician's note to work, which indicated that relator was now subject to a 20-pound lifting restriction. 

            Due to the "acuity level of [its] residents," the Center was unable to accommodate the 20-pound lifting restriction.  The Center placed relator on an unpaid medical leave of absence, and advised her to contact the Center for work after her physician released the lifting restriction.  Relator inquired about openings in other departments at the Center, but none were available. 

            Relator applied for unemployment benefits.  The Society requested a determination of relator's eligibility.  The Department of Employment and Economic Development (DEED) determined that relator was ineligible to receive benefits.  DEED reasoned that relator "[could not] perform the duties of her usual occupation with her medical restrictions and [was] not looking for other work."  Relator appealed the ineligibility determination. 

            A ULJ conducted a telephone hearing to address the issue of whether relator met the statutory eligibility requirements to receive benefits.  During the hearing, relator testified that she had only applied for one position as a home-health aide, but that the position required lifting.  Relator acknowledged that she could work in other positions. 

            The ULJ concluded that relator was "not actively seeking suitable employment" and was ineligible to receive benefits.  Relator filed a request for reconsideration, and subsequently submitted a letter and a job search log, which we construe as a request for an additional evidentiary hearing.  The ULJ affirmed the initial decision.  Relator now seeks review by writ of certiorari. 

D E C I S I O N

 

            The issue in this case is whether the evidence reasonably supports the ULJ's determination that relator was ineligible to receive benefits because she was not "actively seeking suitable employment."  In reviewing a certiorari appeal from a ULJ's decision, this court

may affirm the decision of the unemployment law judge or remand the case for further proceedings; or it may reverse or modify the decision if the substantial rights of the petitioner may have been prejudiced because the findings, inferences, conclusion, or decision are:

                                    (1) in violation of constitutional provisions;

                                    (2) in excess of statutory authority or jurisdiction of the department;

                                    (3)  made upon unlawful procedure;

                                    (4)  affected by other error of law;

                                    (5)  unsupported by substantial evidence in view of the entire record as submitted; or

                                    (6)  arbitrary or capricious.

 

Minn. Stat. § 268.105, subd. 7(d) (2006).

            An applicant for unemployment benefits is "eligible to receive benefits for any week if: . . . (4) the applicant was able to work and was available for suitable employment, and was actively seeking suitable employment."  Minn. Stat. § 268.085, subd. 1(4) (Supp. 2005).  "‘Able to work' means an applicant has the physical and mental ability to perform (1) the usual duties of the applicant's usual occupation or (2) the usual duties of work that is gainful employment engaged in by others as a means of livelihood."  Id., subd. 14 (2004).  "‘Actively seeking suitable employment' means 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).  To be "available for suitable employment," an applicant must be "ready and willing to accept suitable employment."  Id., subd. 15(a) (2004).  The applicant bears the burden of proving eligibility for unemployment benefits.  Mueller v. Comm'r of Econ. Sec., 633 N.W.2d 91, 92 (Minn. App. 2001). 

            The ULJ first concluded that relator was "able to work."  The ULJ found that while relator "can not perform work in her normal occupation as a nursing assistant," she "is able to work in kitchen, laundry[,] or housekeeping."  The ULJ then determined that relator was not actively seeking employment that she could perform and that relator was not eligible to receive unemployment benefits. 

            There is substantial evidence supporting the ULJ's determination that relator was "not actively seeking suitable employment."  During the telephone hearing, the ULJ asked relator whether she had been "looking for any other work since [she] filed for unemployment."  When relator responded in the affirmative, the ULJ further inquired, "What kind of jobs are you looking for?"  Relator answered that she had called her former employer to apply for a home health-aide position.  The former employer informed relator that the position required the ability to lift, and that no light-duty positions were available.  The ULJ then asked relator if she had applied for any other jobs.  Relator replied, "No, there's only that place."  Relator admitted that she could work in a light-duty kitchen position, but acknowledged that she had not applied for any such positions.

            In her request for reconsideration, relator states that she inquired about a medical-assembly position that did not require lifting.  But relator could not apply for the position because the company sought only experienced candidates.  And nearly a month after the telephone hearing, relator submitted a job search log, showing that she had applied to five positions after the hearing.  We construe these submitted materials as a request for an additional hearing, which the ULJ implicitly denied.

            "In deciding a request for reconsideration, the unemployment law judge shall not, except for purposes of determining whether to order an additional evidentiary hearing, consider any evidence that was not submitted at the evidentiary hearing . . . ."  Minn. Stat. § 268.105, subd. 2(c) (Supp. 2005).  The ULJ "must order an additional evidentiary hearing" if the

party shows that evidence which was not submitted at the evidentiary hearing: (1) would likely change the outcome of the decision and there was good cause for not having previously submitted that evidence; or (2) would show that the evidence that was submitted at the evidentiary hearing was likely false and that the likely false evidence had an effect on the outcome of the decision.

 

Id. (emphasis added).

            Applying the foregoing standard for holding an additional evidentiary hearing, we note that there is no question of false evidence.  The questions are whether additional evidence "would likely change the outcome" and whether "there was good cause."  Relator had a basic obligation to engage in a job search.  If, at the time of the original hearing, relator had submitted evidence that she had applied for suitable jobs, the case's outcome may have been different.  But the record shows that relator had applied for one job as of the time of the original hearing and additional jobs after the hearing.  There is no showing that she could not do a job search before the hearing.  Failure to engage in a timely, required job search is not something that can be corrected retroactively by looking for jobs.  The purpose of the additional evidentiary hearing is not to enable the relator to create such new evidence to bolster the record.  We conclude that because the statutory requirements that the evidence would "likely change the outcome" and that there was
"good cause" for not producing the evidence at the hearing are not met, the ULJ was not required to conduct an additional evidentiary hearing. 

            Affirmed.

 

Dated: