may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
Dolphin Clerical Group,
Commissioner of Economic Security,
Department of Economic Security
File No. 1286301
Alicia S. Eaton, 3637 Columbus Avenue South, Apartment 4, Minneapolis, MN 55407-2578 (pro se relator)
Dolphin Clerical Group, TCG Incorporated, 258 Hennepin Avenue, Minneapolis, MN 55401 (respondent)
M. Kate Chaffee, Minnesota Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner of Economic Security)
Considered and decided by Peterson, Presiding Judge, Harten, Judge, and Poritsky, Judge.*
U N P U B L I S H E D O P I N I O N
This appeal is from a decision of a representative of respondent Commissioner of Economic Security that relator Alicia Shakia Eaton is disqualified from receiving unemployment benefits because she failed to accept an offer of suitable employment. We affirm.
From September 2000 until February 2001, Eaton obtained employment through respondent Dolphin Clerical Group, a temporary-employment-services agency. Dolphin assigned Eaton to short-term, temporary positions with various Dolphin clients. Eaton performed clerical work and was paid from $10 to $12 per hour. Dolphin’s records show that Eaton indicated that she preferred working from 7:00 a.m. until 3:30 or 4:00 p.m. or from 8:00 a.m. until 4:30 or 5:00 p.m. Dolphin’s records also show that Eaton was removed from her last assignment, in February 2001, because the client expressed dissatisfaction with her performance.
On March 1, 2001, Karen Krueger, a staffing coordinator for Dolphin whose responsibilities included overseeing temporary employees, offered Eaton an assignment working as a receptionist for Qwest. The receptionist position paid $11.50 per hour, and the hours were from 8:00 a.m. until 5:00 p.m., Monday through Friday. The position was to begin on March 12, 2001, and continue at least through March 30, 2001. Initially, Eaton accepted the position.
Dolphin presented evidence that on March 7, 2001, before the Qwest assignment started, Eaton contacted Krueger and said that she would not be able to take the Qwest position because her car was not working. Eaton could have taken a bus to the job site, but she told Krueger that she also had daycare issues and could not work later than 4:30 p.m. Later that day, according to Krueger, Eaton went to the Dolphin office and told Krueger that she was no longer available for work and would contact Dolphin when she was again available.
Eaton filed a claim for unemployment benefits with the Department of Economic Security. A department adjudicator determined that Eaton was discharged from employment for reasons other than misconduct and, therefore, was not disqualified from receiving benefits. Dolphin appealed, and, following an evidentiary hearing, an unemployment law judge determined that Eaton failed, without good cause, to accept suitable employment when offered and, therefore, was disqualified from receiving benefits. Eaton appealed to respondent Commissioner of Economic Security. A commissioner’s representative affirmed the unemployment law judge’s decision.
The commissioner’s representative determined that Eaton was disqualified from receiving unemployment benefits because she failed, without good cause, to accept suitable employment, when offered. The commissioner’s representative explained:
A preponderance of the available evidence shows that Alicia Eaton did fail to accept an offer of suitable employment. Although Alicia Eaton contends otherwise in her testimony and written submissions, a preponderance of the evidence shows that she did, in fact, accept the offer made by Karen Krueger for a temporary assignment as a clerical worker with Qwest. Contemporaneously created business records, kept in Dolphin Clerical Group’s normal course of business, support this finding. Moreover, certain inconsistencies in Alicia Eaton’s testimony and written documentation undermine her credibility on the issue.
The job assignment with Qwest offered Alicia Eaton was for the kind of work that she had done in the past. The assignment was for a similar duration of time, within a similar geographic area, required the use of the same skill set, and paid roughly the same wage as other assignments Alicia Eaton had accepted through Dolphin Clerical Group. A preponderance of the evidence shows that the assignment was, in fact, an offer of suitable employment.
An applicant’s entitlement to unemployment benefits shall be determined based upon that information available without regard to any common law burden of proof, and any agreement between an applicant and an employer shall not be binding on the commissioner in determining an applicant’s entitlement. There shall be no presumption of entitlement or nonentitlement to unemployment benefits.
Minn. Stat. § 268.069, subd. 2 (2002). Issues of fact are determined by a preponderance of the evidence. Minn. Stat. § 268.03, subd. 2 (2002). 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) (citation omitted).
When reviewing questions of law, this court is not bound by the Commissioner’s conclusions of law, but is free to exercise its independent judgment. The issue of whether a claimant is properly disqualified from the receipt of unemployment benefits is a question of law.
Markel v. City of Circle Pines, 479 N.W.2d 382, 384 (Minn. 1992) (citation omitted).
Minn. Stat. § 268.095, subd. 8(a)(2) (2002), states:
An applicant shall be disqualified from all unemployment benefits if the applicant, without good cause * * * failed to accept suitable employment when offered.
“Good cause” is a reason that would cause a reasonable individual who wants suitable employment to fail to apply for, accept, or avoid suitable employment.
Id., subd. 8(b).
Suitable employment means employment in the applicant’s labor market area that is reasonably related to the applicant's qualifications. 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 shall be considered.
Minn. Stat. § 268.035, subd 23a(a) (2002).
Eaton claims that Dolphin discharged her from an assignment in February 2001 and did not offer her any employment after that. Whether an employer has offered suitable employment is a question of fact, involving a credibility determination by the commissioner. Willrich v. Top Temp., Inc., 379 N.W.2d 731, 732 (Minn. App. 1986). When the parties present conflicting evidence, this court must defer to the commissioner’s credibility determinations. Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).
Dolphin presented evidence that it offered Eaton a position with Qwest that was to begin on March 12, 2001, and continue at least through March 30, 2001. Eaton argues that Dolphin’s evidence about the Qwest offer is incredible because Eaton’s criminal background made her ineligible for the position. But Cindy Brooks, a risk specialist for Dolphin, testified that only felony convictions affect a person’s eligibility for employment, and Eaton testified that she was ineligible for the Qwest position because of a prior misdemeanor offense.
The evidence reasonably tends to sustain the commissioner’s representative’s findings that Dolphin offered Eaton a position with Qwest, that the Qwest position was similar to positions Eaton previously accepted through Dolphin, and therefore, it was suitable employment, and that Eaton failed to accept the offer. See Willrich, 379 N.W.2d at 731-33 (employee applied for unemployment benefits after accepting a single one-day assignment from a temporary employment agency, and parties presented conflicting evidence on whether temporary agency offered employee any assignments after that; this court affirmed commissioner’s finding that temporary agency had offered employee suitable employment).
The evidence also demonstrates that Eaton did not have good cause for failing to accept the Qwest position. Eaton claimed to be unavailable for the Qwest position because her car was unusable. But the job site could be reached by bus. Eaton also claimed to have daycare issues or concerns. But a concern about arranging childcare does not constitute good cause to reject an employment offer. Levens v. Co-Rect Bar & Rest. Supply, 356 N.W.2d 774, 774 (Minn. App. 1984).
The commissioner’s representative did not err in concluding that Eaton was disqualified from receiving unemployment benefits because she failed, without good cause, to accept an offer of suitable employment.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.