Opinion
No. A06-1911.
Filed October 23, 2007.
Appeal from the Department of Employment and Economic Development, File No. 893006.
Ronald W. Schultenover, (pro se relator).
I.G. Incorporated, Dolphin Staffing, (respondent).
Lee B. Nelson, Department of Employment and Economic Development, (for respondent Department of Employment and Economic Development).
Considered and decided by Peterson, Presiding Judge; Lansing, Judge; and Klaphake, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2006).
UNPUBLISHED OPINION
This appeal is from the decision of an unemployment law judge that relator is disqualified from receiving unemployment benefits because he quit his employment at a staffing service employer. We affirm.
FACTS
Relator Ronald W. Schultenover was an employee of respondent I.G., Incorporated, a staffing service employer that does business as Dolphin Staffing. When he began his employment, Schultenover signed a form that states:
"[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) (2004).
According to Minnesota state statute, section 268.095, subdivision 2, paragraph D, an applicant who, within five calendar days after completion of a suitable job assignment from a staffing service employer, (1) fails without good cause to affirmatively request an additional job assignment, or (2) refuses without good cause an additional suitable job assignment offered, shall be considered to have quit employment. It is your responsibility to contact Dolphin Staffing for additional assignments. If you fail to do so, it may affect your unemployment benefits.
Dolphin offered Schultenover a position at the Academy of Holy Angels. Schultenover initially rejected the position, and Dolphin hired another person. Dolphin then asked Schultenover to take the position on a temporary basis for two weeks so that the person it had hired could give notice to her current employer. Schultenover agreed, and Dolphin confirmed that Schultenover's assignment was to start on February 6 and end on February 17.
The other person that Dolphin had hired for the position at Holy Angels started working on February 16 so that Schultenover could train her. Schultenover left Holy Angels early on the 16th for a job interview and did not return on February 17. Holy Angels contacted Dolphin to request that Schultenover return to continue training the new hire the following week. Dolphin left telephone messages for Schultenover on February 17, 19, and 20, telling him that he was expected to report for work at Holy Angels on February 21. Schultenover did not respond to the messages nor report for work on February 21. He did not contact Dolphin until February 26.
Schultenover established a benefits account with respondent Department of Employment and Economic Development, and a department adjudicator determined that Schultenover was not disqualified from receiving unemployment benefits. Dolphin challenged the determination, and following a telephone hearing before an unemployment law judge (ULJ), the ULJ determined that Schultenover quit his employment and, therefore, was disqualified from receiving benefits. Schultenover sought reconsideration, and the ULJ affirmed the decision. This certiorari appeal followed.
DECISION
This court may reverse or modify the decision of a ULJ if the substantial rights of the petitioner may have been prejudiced because the ULJ's findings, inferences, conclusion, or decision are affected by error of law or unsupported by substantial evidence. Minn. Stat. § 268.105, subd. 7(d) (2006). Substantial evidence means "(1) such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; (2) more than a scintilla of evidence; (3) more than some evidence; (4) more than any evidence; or (5) the evidence considered in its entirety." Minn. Ctr. for Envtl. Advocacy v. Minn. Pollution Control Agency, 644 N.W.2d 457, 466 (Minn. 2002).
Whether an employee is disqualified from receiving unemployment benefits is a question of law, which this court reviews de novo. Ress v. Abbott Nw. Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). This court defers to the decision of the ULJ regarding conflicts in testimony and the inferences to be drawn from testimony. Ywswf v. Teleplan Wireless Servs., Inc., 726 N.W.2d 525, 529 (Minn.App. 2007).
Unless a statutory exception applies, an unemployment-benefits applicant who quit employment is disqualified from receiving benefits. Minn. Stat. § 268.095, subd. 1 (Supp. 2005).
An [unemployment-benefits] applicant who, within five calendar days after completion of a suitable temporary job assignment from a staffing service employer, (1) fails without good cause to affirmatively request an additional job assignment, or (2) refuses without good cause an additional suitable job assignment offered, shall be considered to have quit employment.
Minn. Stat. § 268.095, subd. 2(d) (2004). This statutory provision applies
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 [the statutory provision] and that unemployment benefits may be affected.
Id.
Schultenover does not dispute the ULJ's finding that he "signed and received a copy of a document agreeing to contact Dolphin to request an additional work assignment within five days of completing an assignment and that failure to contact Dolphin would be considered a quit from employment that may affect his unemployment benefits." Therefore, we conclude that the ULJ did not err in determining that Minn. Stat. § 268.095, subd. 2(d), applies to Schultenover.
There is also no dispute that Schultenover's job assignment at Holy Angels was to end on February 17 and that February 16 was the last day that Schultenover reported for work at Holy Angels. The ULJ found that Schultenover did not contact Dolphin to request additional employment until February 26, which was more than five calendar days after Schultenover completed his assignment at Holy Angels and, therefore, "Schultenover is considered to have quit employment under the provisions of the law." Id.
Schultenover claims that after his replacement showed up on February 16 and he showed her the job, he "phoned Dolphin and was sent to voicemail." But he does not claim that when he phoned Dolphin, he requested an additional job assignment. Schultenover also claims that he "contacted Dolphin repeatedly over a two-week period and was always sent to voicemail without a response until sometime after the assignment was over as it had been explained to me." But it is apparent that the two-week period during which Schultenover claims to have contacted Dolphin repeatedly is the two-week period when he worked at Holy Angels.
Schultenover states in his brief, "I accepted the assignment for two weeks or until the new person could start. I phoned Dolphin repeatedly during this time to see if they would keep me on this assignment. I was always sent to voicemail and never had a response."
This statement demonstrates only that Schultenover asked to be kept on the assignment at Holy Angels; it does not demonstrate that he asked for an additional assignment after the Holy Angels assignment ended.
Also, at the hearing before the ULJ, Dolphin's director of operations presented a document called an employee message report, which documented communications between Dolphin and Schultenover regarding his assignment. The director testified that Schultenover called Dolphin on February 16 to notify them that the new hire had arrived and that Dolphin did not hear from Schultenover again until February 26. The employee message report is consistent with the director's testimony. Together, the director's testimony and the employee message report are substantial evidence that Schultenover did not contact Dolphin to request a new assignment within five days after the end of his assignment at Holy Angels.
Because substantial evidence supports the ULJ's finding that Schultenover did not contact Dolphin to request a new assignment within five days after the end of his assignment at Holy Angels, we conclude that the ULJ did not err in determining that under Minn. Stat. § 268.095, subd. 2(d), Schultenover quit employment and, therefore, is disqualified from receiving unemployment benefits.