This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1252

 

Kathleen R. DuSchane,

Relator,

 

vs.

 

Northwest Airlines, Inc.,

Respondent,

 

Commissioner of Employment

and Economic Development,

Respondent.

 

Filed March 16, 2004

Affirmed

Hudson, Judge

 

Department of Employment and

Economic Development

 

Kathleen R. DuSchane, 5839 River Oak Drive, Savage, Minnesota 55378-5608 (pro se relator)

 

Northwest Airlines, Inc., Minneapolis Airport & Foreign Countries, C/O TALX UCM Services Inc., P.O. Box 283, St. Louis, Missouri 63166-0283 (respondent)

 

Lee B. Nelson, M. Kate Chaffee, Minnesota Department of Employment and Economic Development, 390 Robert Street North, St. Paul, Minnesota 55101 (for respondent commissioner)

 

            Considered and decided by Anderson, Presiding Judge; Stoneburner, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

            Relator challenges the decision by the representative of the Commissioner of Employment and Economic Development that:  (1) she was ineligible for unemployment benefits for the period of January 15, 2003, through March 22, 2003, because she did not meet two of the ongoing eligibility requirements under Minn. Stat. § 268.069, subd. 1 (2002); and (2) that she was overpaid $1,800 in benefits for the period of January 25, 2003, through March 22, 2003.  Because we conclude that the record supports the commissioner’s representative’s determination that relator was ineligible for unemployment benefits during this period, we affirm.

FACTS

Relator, Kathleen DuSchane, is an employee of Northwest Airlines and applied to participate in a program called the Leave of Absence with Passes Program (passes program).  The passes program allowed eligible employees to take unpaid leave in order to prevent the layoff of more junior employees.  Relator was accepted as a program participant and began her leave on January 15, 2003.  On January 14, 2003, relator applied for unemployment benefits and on her application she characterized her separation from Northwest as a layoff.  The Minnesota Department of Employment and Economic Development (Department) awarded relator benefits of $200 a week for the period of January 25, 2003, through March 22, 2003. 

On February 7, 2003, Northwest notified relator that they were laying her off effective February 28, 2003.  Due to the layoff, Northwest awarded relator $1,393.59 in severance which she would receive in three installments on March 14, 2003, March 28, 2003, and April 11, 2003.  On March 25, 2003, relator notified the Department that she would be receiving the severance payments and the Department put a hold on relator’s unemployment benefits.[1] 

In April 2003, the Department issued a determination that relator was ineligible to receive benefits for the period of January 15, 2003, through February 4, 2003.  Therefore, the Department determined that relator was overpaid benefits for the weeks ending January 25, 2003, through February 4, 2003, obligating her to repay the $600 she received during this period.  Relator appealed this determination and, at the hearing before the unemployment law judge, relator’s employer argued that while on leave through the passes program relator was actually laid off in lieu of a junior employee.  The unemployment law judge affirmed the Department’s determination, and relator appealed the unemployment law judge’s determination.  The commissioner’s representative issued a determination finding that relator was ineligible for unemployment benefits from January 15, 2003, through March 22, 2003, and in a companion decision determined that relator was actually overpaid $1,800, which included the $600 that the department had found relator owed for the weeks ending January 25, 2003, through February 8, 2003.  Additionally, this amount included the $200 weekly payments she received for the period of February 15, 2003, through March 22, 2003, which equaled $1,200.  This certiorari appeal follows.

D E C I S I O N

Decisions of the commissioner’s representative are accorded particular deference.  Tuff v. Knitcraft Corp.,526 N.W.2d 50, 51 (Minn. 1995).  The commissioner’s representative’s factual findings are viewed in the light most favorable to the decision and are not disturbed if evidence in the record reasonably tends to sustain them.  Lolling v. Midwest Patrol,545 N.W.2d 372, 377 (Minn. 1996).  While this court defers to the commissioner’s findings of fact if the evidence in the record reasonably supports them, we exercise independent judgment with respect to questions of law.  Ress v. Abbott Northwestern Hosp., Inc.,448 N.W.2d 519, 523 (Minn. 1989).

Relator claims that she was eligible for unemployment benefits and was not overpaid because (1) she never received unemployment and severance benefits at the same time; (2) Northwest told her it would not contest her unemployment benefits; and (3) the Department has not asked others who took similar leave to pay back the leave amount. 

            For the Department to find an applicant eligible for unemployment benefits, an applicant must meet five requirements:

(1) the applicant has filed an application for unemployment benefits and established a benefit account in accordance with section 268.07;

            (2) the applicant is not subject to a disqualification from unemployment benefits under section 268.095;

            (3) the applicant has met all of the ongoing weekly eligibility requirements under sections 268.085 and 268.086;

            (4) the applicant does not have an outstanding overpayment of unemployment benefits, including any penalties or interest, under section 268.18; and

            (5) the applicant is not subject to a denial of unemployment benefits under section 268.182.

                                                     

Minn. Stat. § 268.069, subd. 1 (2002).  Here, the commissioner’s representative found that relator was not eligible for unemployment benefits because she did not meet two of the ongoing weekly eligibility requirements under Minn. Stat. § 268.085 (2002).  First, the commissioner’s representative found that relator was not eligible for benefits from January 15, 2003, through February 28, 2003, because she was on a voluntary leave of absence and was thus ineligible for benefits pursuant to Minn. Stat. § 268.085, subd. 13a.  Second, the commissioner’s representative found that relator was ineligible to receive unemployment benefits from February 28, 2003, through March 22, 2003, because her severance payments from Northwest equaled or exceeded her weekly salary and thus she was ineligible for benefits pursuant to Minn. Stat. § 268.085, subd. 3.  We agree.

First, Minn. Stat. § 268.085, subd. 13a, states, “(a) An applicant on a voluntary leave of absence shall be ineligible for benefits for the duration of the leave of absence.  A leave of absence is voluntary when work that the applicant can then perform is available with the applicant’s employer but the applicant chooses not to work.” 

The record supports the commissioner’s representative’s finding that the passes program is a voluntary leave-of-absence program.  The passes program allows more senior employees to take leave to protect the jobs of more junior employees.  Participants of this program do not leave work because there is no work available to them.  Rather, they leave work in order to protect a junior employee from a layoff by allowing the junior employee to perform the program participant’s work.  In addition, on Northwest’s literature explaining the passes program, Northwest defines the program as a voluntary leave-of-absence program and passes program participants retain flight benefits and continue to accrue seniority.  Finally, on February 7, 2003, Northwest sent relator a letter notifying relator that, due to a reduction in work force, Northwest was laying her off effective February 28, 2003.  This indicates that up until February 28, 2003, relator was considered an employee of Northwest.   

Based on these facts, we conclude that the record supports the commissioner’s representative’s determination that relator was ineligible to receive unemployment benefits for the period of January 15, 2003, through February 28, 2003.

            Next, the commissioner’s representative found that relator was ineligible for benefits during the period of February 28, 2003, through March 22, 2003, because she did not meet the ongoing weekly requirement under Minn. Stat. § 268.085, subd. 3.  Minn. Stat. § 268.085, subd. 3, states:  “(a)  An applicant shall not be eligible to receive unemployment benefits for any week with respect to which the applicant . . . has received . . . payment in an amount equal to or in excess of the applicant’s weekly unemployment benefit amount in the form of . . . severance pay . . . .”

Relator was awarded severance benefits of $1,393.59 after she was laid off on February 28, 2003.  She was to receive these benefits in three installments on March 14, 2003, March 28, 2003, and April 11, 2003.  The severance amount exceeded her $200 weekly unemployment benefit during the weeks ending March 8, 2003, March 15, 2003, and March 22, 2003.  Therefore, we conclude that the record supports the commissioner’s representative’s determination that relator was ineligible to receive benefits during this period. 

            The Department paid relator benefits totaling $1,800 during the period of January 15, 2003, through March 22, 2003.  Minn. Stat. § 268.18, subd. 1 (2002), states, “(a) Any applicant who (1) by reason of the applicant’s own mistake, or (2) because of an error by any employee of the department . . . has received any unemployment benefits that the applicant was not entitled to, shall promptly repay the unemployment benefits to the fund.”  Thus, the commissioner’s representative correctly concluded that relator must repay the Department $1,800 in overpaid benefits.

Affirmed.

 

 



[1] Relator never received the last of her severance payments because she was called back to work April 5, 2003.