This opinion will be unpublished and

may not be cited except as provided by

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






Andre P. Pope,


Commissioner of Employment and Economic Development,


Filed November 4, 2003


Minge, Judge


Department of Employment and Economic Development

File No. 14270 02


Andre P. Pope, 8919 Yates Terrace North, Brooklyn Park, MN 55443-1669 (pro se relator)


Lee B. Nelson, M. Kate Chaffee, 390 North Robert Street, St. Paul, MN 55101 (for respondent)


            Considered and decided by Minge, Presiding Judge; Klaphake, Judge; and Peterson, Judge.

U N P U B L I S H E D  O P I N I O N

MINGE, Judge


            Relator Andre P. Pope filed a writ of certiorari of the Commissioner of Employment and Economic Development’s determination that he was ineligible for unemployment compensation benefits because of his participation in a master’s degree program.  Because we find adequate evidence in the record to support the commissioner’s determination, we affirm.



            Spherion, a temporary staffing agency, employed relator Andre P. Pope.  In early March 2002, after a position with Wells Fargo Home Mortgage ended due to a lack of work, Pope established an unemployment benefit account.  In May or June 2002, Spherion search consultant, Ellen T. Browen, spoke with Pope.  Browen testified that he informed her that he was not available for additional assignments because he was planning to enroll in school full-time to complete his master’s degree.  Browen also stated that Pope advised her on another occasion that he was only available for part-time work on certain evenings. 

Pope does not dispute his student status.  On June 3, 2002, he enrolled as a full-time day student in the Masters of Business Administration program at the University of St. Thomas.  Initially he took three and in the next term, two courses that met four days a week.  During this period, Pope invested approximately $13,000 in tuition.  However, Pope testified that he was actively seeking employment in May, June, and July, that he never told Browen he was unavailable for work, that he did not inform Browen of his intention to return to school until late July, that he had several conversations with Browen where he inquired about available employment and asked her to broaden her search, and that Browen was confusing him with someone else.  Pope states that he is sometimes misunderstood given his African accent and that he is constantly correcting people, including the adjudicator in the ineligibility proceedings.

            As a result of a random audit investigation of Pope’s unemployment benefit account, his school enrollment came to the attention of the respondent, Department of Employment and Economic Development.  The department issued a determination finding Pope unavailable for suitable employment and therefore ineligible to receive unemployment benefits.  An unemployment law judge affirmed the initial determination at a subsequent hearing.  Upon appeal by Pope, the representative of the commissioner issued the final agency decision affirming that Pope was unavailable for suitable employment and ineligible to receive unemployment benefits while in the MBA program.  By writ of certiorari, Pope seeks review by this court.



            This court’s review of decisions of the commissioner’s representative is limited to determining whether the record reasonably supports the decision.  Tuff v. Knitcraft, 526 N.W.2d 50, 51 (Minn. 1995).  “When reviewing a decision of the Commissioner of [Employment and Economic Development], this court’s scope of review is very narrow.”  Markel v. City of Circle Pines, 479 N.W.2d 382, 383 (Minn. 1992).  Factual findings are reviewed in the light “most favorable to the commissioner’s decision and [the court] will not disturb them as long as there is evidence that reasonably tends to sustain those findings.”  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).

            When witness credibility and conflicting evidence are at issue, this court defers to the commissioner’s ability to weigh the evidence.  We do not weigh the evidence on review.  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).  The courts exercise independent judgment on questions of law.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

            Eligibility to draw unemployment benefits requires an applicant to be “available for suitable employment.”  Minn. Stat. § 268.085, subd. 1(2) (2002).  “Available for suitable employment” is defined by statute:

(a) “Available for suitable employment” means an applicant is ready and willing to accept suitable employment in the labor market area.  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 self-imposed or created by circumstances, temporary or permanent, that prevent accepting suitable employment.


(b) To be considered “available for suitable employment,” a student must be willing to quit school to accept suitable employment.


(c)  An applicant who is absent from the labor market area for personal reasons, other than to search for work, is not “available for suitable employment.”


(d)  An applicant who has restrictions on the hours of the day or days of the week that the applicant can or will work, that are not normal for the applicant’s usual occupation or other suitable employment, is not “available for suitable employment.”  An applicant must be available for daytime employment, if suitable employment is performed during the daytime, even though the applicant previously worked the night shift.


Minn. Stat. § 268. 085, subd. 15 (a) - (d) (2002).

The courts of this state have had occasion to consider whether enrollment in university programs is compatible with such availability.  See Goodman v. Minn. Dep’t of Employment Servs., 312 Minn. 551, 552-53, 255 N.W.2d 222, 223 (1977) (concluding a student who placed no conditions on availability was available for work, and noting the law focuses on the availability of the student to accept employment, not on whether they were students before they lost their jobs); Semanko v. Dep’t of Employment Servs., 309 Minn. 425, 426-28, 244 N.W.2d 663, 664-65 (1976) (concluding a law student who reduced his workload to part-time while enrolled as a part-time student, and who then moved to full-time student status upon being laid off was not available for work); Hansen v. Cont’l Can Co., 301 Minn. 185, 186-88, 221 N.W.2d 670, 671-72 (1974) (concluding an elementary education student who had worked afternoons and evenings, was laid off, continued his scheduled classes so they were finished at or before noon, and neither placed conditions or restraints on his availability nor limited his accessibility or rejected employment, was available for work).  The rule that emerges from these cases is that the availability for work or “attachment to the workforce” must be clear.  If the applicant’s education program and prior work history do not establish such an overriding commitment to employment, the applicant should show that the circumstances of the education program are fully compatible with the availability-for-work requirement.

            In this case, Pope’s availability is disputed.  He states that, if employed, he would quit his MBA program or transfer into the evening or weekend program.  However, there is evidence that on one occasion he told an employment search consultant that he was not available for additional assignments because of his school plans and on another occasion that he was only available to work part-time on certain evenings.

            Pope disputes the alleged conversations with the employment consultant and claims that he requested that she broaden her search for work.  He also claims that she must have him confused with another person and that given his African accent he is often misunderstood.  As much as we agree that the department should be vigilant that there are not prejudicial misunderstandings caused by an accent, and as much as we respect Pope’s work ethic and his commitment to improve his job skills, we are not at liberty to determine the facts de novo.  The commissioner is the factfinder.  See Goodman,312 Minn. at 553, 255 N.W.2d at 223.  We review the record to see if there is substantial evidence to support the commissioner’s determination.  Schmidgall, 644 N.W.2d at 804.  The record in this case does not support a reversal.

            In making his appeal, Pope expresses frustration that he is a victim of discrimination.  We take such claims seriously and closely examine the record when they are made.  Pope has not introduced any evidence of discrimination other than the bare assertion.  The commissioner’s representative pointed to Pope’s $13,000 tuition payment and the uncertainty as to his ability to transfer to the evening program as indications that Pope would be reluctant to take a job.  There was no evidence of his ability to switch from day to evening programs, especially mid-term, other than Pope’s claim.  We note that one of the few reported cases in this area involved a law student who was denied unemployment benefits under very similar circumstances.  See Semanko, 309 Minn. 425, 244 N.W.2d 663 (1976).  Pope is not the first graduate student to encounter problems in drawing unemployment benefits while pursuing his studies.

We recognize that the question of drawing unemployment benefits while enrolled in educational programs is delicate.  Our society recognizes the value of education, establishes academic institutions, and encourages people to enroll in educational programs.  At the same time, unemployment benefits are reserved for those who are available for suitable employment, who are actively looking for employment, and whose top priority is accepting the first suitable job that becomes available.  Student workers must establish that their first “attachment” is to the job market.  Minn. Stat. § 268.085, subd. 15(a).  Unemployment benefits are not a stipend to facilitate training for a better job.  The statutes and reported cases previously discussed indicate certain skepticism whether unemployed persons enrolled in daytime degree programs are aggressively seeking employment.  Here, there is no evidence that the commissioner discriminated against students in general, or against Pope specifically.  There is, however, adequate evidence in the record to support the commissioner’s determination.