Opinion
A22-1712
06-02-2023
In the Matter of: Mary Merrell.
Department of Employment and Economic Development File No. 48922134-3
Considered and decided by Segal, Chief Judge; Gaitas, Judge; and Larson, Judge.
ORDER OPINION
Susan L. Segal, Chief Judge
BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND BECAUSE:
1. Relator Mary Merrell filed this certiorari appeal to challenge a decision by an unemployment-law judge (ULJ) determining that Merrell was not eligible for unemployment benefits because she was not available for and actively seeking suitable employment. Respondent Minnesota Department of Employment and Economic Development (DEED) agrees that the ULJ's decision should be reversed.
2. Merrell was employed as a licensed practical nurse (LPN) until July 21, 2022, when she separated from her employment as part of a worker's compensation settlement following a back injury. Merrell applied for unemployment benefits, disclosing the reason for her discharge and identifying her work limitations. DEED issued a determination that Merrell was not eligible for benefits because she had "not demonstrated an active search for gainful employment that exists or can be expected to arise within the applicant's labor market, and that is consistent with the applicant's restrictions and qualifications." Merrell filed an administrative appeal, and a ULJ held a hearing, at which Merrell testified regarding her work limitations and job-search efforts.
3. The ULJ issued a decision determining that Merrell was not eligible for unemployment benefits because she was not available for or actively seeking suitable employment. Merrell sought reconsideration, and the ULJ affirmed the ineligibility decision.
4. We may affirm the ULJ's decision or remand for further proceedings, or we may reverse or modify the ULJ's "decision if the substantial rights of the [relator] may have been prejudiced because the findings, inferences, conclusion, or decision are," as relevant here, "unsupported by substantial evidence." Minn. Stat. § 268.105, subd. 7(d) (2022).
5. To be eligible for unemployment benefits, an applicant must, among other requirements, be available for and actively seeking suitable employment during each week for which they seek to collect benefits. Minn. Stat. § 268.085, subd. 1(4), (5) (2022). The statute defines "suitable employment" as meaning "employment in the applicant's labor market area that is reasonably related to the applicant's qualifications." Minn. Stat. § 268.035, subd. 23a(a) (2022). The statute further provides:
In determining whether any employment is suitable for an applicant, the degree of risk involved to the health and safety, physical fitness, prior training, experience, length of unemployment, prospects for securing employment in the applicant's customary occupation, and the distance of the employment from the applicant's residence is considered.Id. The statute dictates that "primary consideration is given to . . . whether the applicant has favorable prospects of finding employment in the applicant's usual or customary occupation at the applicant's past wage level within a reasonable period of time." Id., subd. 23a(b) (2022).
6. An applicant is available for suitable employment if the "applicant is ready, willing, and able to accept suitable employment." Minn. Stat. § 268.085, subd. 15(a) (2022). "The attachment to the work force must be genuine. An applicant may restrict availability to suitable employment, but there must be no other restrictions, either selfimposed or created by circumstances, temporary or permanent, that prevent accepting suitable employment." Id.
7. An applicant is actively seeking suitable employment if the applicant is making "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." Minn. Stat. § 268.085, subd. 16(a) (2022).
8. The issues of whether an applicant is available for and actively seeking suitable employment present questions of fact, on which a ULJ's findings should be upheld if they are reasonably supported by the record. See Semanko v. Dep't of Emp. Servs., 244 N.W.2d 663, 665 (Minn. 1976) (treating availability to work as issue of fact); McNeilly v. Dep't of Emp. & Econ. Dev., 778 N.W.2d 707, 712 (Minn.App. 2010) (reviewing to assess whether substantial evidence supports ULJ's determination that applicant was not actively seeking suitable employment); see also Wilson v. Mortg. Res. Ctr., Inc., 888 N.W.2d 452, 460 (Minn. 2016) (holding that ULJ findings will be upheld "as long as there is evidence in the record that reasonably tends to sustain them" (quotation omitted)). ULJ findings will not be upheld, however, when they are based on "erroneous presumptions and assumptions not supported by the record." Decker v. City Pages, Inc., 540 N.W.2d 544, 549 (Minn.App. 1995) (reversing ULJ determinations that applicant was not available for and actively seeking suitable employment).
9. DEED asserts that the ULJ's findings on the issues of whether Merrell was available for and actively seeking suitable employment are not supported by the evidence in the record. We agree.
10. On the first issue, the ULJ found that Merrell was not available for suitable employment because she was limiting her job search to LPN positions and had physical limitations that would preclude her from taking some LPN jobs. The ULJ found that "[i]t is common for LPN jobs to require the ability to act in emergencies such as falls and resuscitation, and Merrell's medical restrictions prevent her from rendering help in such situations." The ULJ also found that there were "few opportunities that would meet [Merrell's] medical restrictions." Merrell was the only witness at the hearing and she provided no testimony or other evidence to support the ULJ's findings on these questions. It appears that the ULJ based these findings on nothing more than the ULJ's personal suppositions about the nature of available LPN positions. The record is thus devoid of any evidence to support these findings.
11. Merrell testified that she was able to complete all of her job duties at her previous LPN job while working within her restrictions; that she was not required to do heavy lifting because that was the job of aides who were always available; and that there were LPN jobs available that she was capable of performing.
12. Because Merrell testified regarding the availability of suitable LPN jobs and there is no contrary evidence in the record, we conclude that the record does not reasonably support the ULJ's finding that Merrell was not available for suitable employment.
13. On the second issue, the ULJ found that Merrell was not actively seeking suitable employment "because she has very few employers where she applied or inquired for work that had jobs that would be suitable employment for her." Like the availability findings, this finding rests on the ULJ's unsupported suppositions about the availability of LPN work within Merrell's work limitations.
14. Merrell testified to significant job-search efforts during the month and a half she had been unemployed by the time of the hearing before the ULJ. She testified to applying for seven jobs, networking with former colleagues, posting her resume online, and inquiring "all sorts of places" to identify positions within her work limitations. And she testified to finding openings for LPN positions that were suitable for her, including multiple positions in mental-health clinics. Although Merrell also testified to discovering that certain positions for which she applied were not best suited to her-because of the job responsibilities or a longer commute-this testimony does not support a finding that she was not actively seeking suitable employment.
15. Given Merrell's testimony regarding her significant jo the relatively short period of time that she had been unemployed record does not reasonably support the ULJ's finding that Merrell w suitable employment.
IT IS HEREBY ORDERED:
1. The ULJ's decision is reversed.
2. Pursuant to Minn. R. Civ. App. P. 136.01, subd. 1(c), this order opinion isnonprecedential, except as law of the case, res judicata, or collateral estoppel.