This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1554

 

Enterprise Communications, Inc.,
Relator,

vs.

Nancy D. Garrison,
Respondent,

Commissioner of Employment and Economic Development,
Respondent.

 

 

Filed July 5, 2005

Affirmed

Peterson, Judge

 

Department of Employment and Economic Development

File No. 5715 04

 

 

Richard S. Eskola, 3989 Central Avenue Northeast, Suite 600, Columbia Heights, MN  55421 (for relator)

 

Nancy D. Garrison, 9666 Wellington Lane, Woodbury, MN  55125-9596 (pro se respondent)

 

Lee B. Nelson, Linda A. Holmes, Minnesota Department of Employment and Economic  Development, First National Bank Building, 332 Minnesota Street, Suite E200, St. Paul, MN  55101 (for respondent Commissioner of Employment and Economic Development)

 

 

            Considered and decided by Schumacher, Presiding Judge; Peterson, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

Relator Enterprise Communications, Inc., (ECI) seeks review of the commissioner’s representative’s decision that respondent Nancy D. Garrison was qualified to receive unemployment benefits because she was laid off due to lack of work and any offers of employment were made before Garrison’s benefit year began.  We affirm.

FACTS

            Garrison was employed as a part-time consultant by ECI, a technical services company, from September 1997 through January 28, 2004.  Throughout Garrison’s employment, she worked for a single client, Imation.  In December 2003, Garrison learned that her contract with Imation would not be renewed.  About the middle of January 2004, Garrison had a discussion with ECI’s owner, Terry Hendriksen, about other possible assignments for her.  Garrison told Hendriksen that she would be interested in an assignment that was comparable to the Imation position in terms of hours and pay rate and within a reasonable commuting distance.  Garrison testified that Hendriksen said there were no other assignments available at that time but there might be some office work she could do. 

            When Garrison spoke to Hendriksen on January 29, 2004, the day after her assignment with Imation ended, Hendriksen said that ECI did not have any work for her at that time, and asked her to wait to file a claim for unemployment benefits to give ECI a chance to find her other work.  Garrison spoke to Hendriksen on February 3, 2004, and he told her about two possible job opportunities.  Garrison was not interested in the jobs because of their locations.  The next day, Garrison sent Hendriksen an e-mail asking for more information about one of the jobs, but it had already been filled.  ECI did not offer Garrison any other work.  Garrison established an unemployment benefit account with an effective date of February 15, 2004. 

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 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).  While this court defers to the commissioner’s findings of fact if they are reasonably supported by the evidence in the record, the court exercises its independent judgment with respect to questions of law.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).  “An applicant’s entitlement to unemployment benefits shall be determined based upon that information available without regard to any common law burden of proof . . .  There shall be no presumption of entitlement or nonentitlement to unemployment benefits.”  Minn. Stat. § 268.069, subd. 2 (Supp. 2003).[1]  But, “[a]ll issues of fact . . . shall be determined by a preponderance of the evidence,” which “means evidence in substantiation of a fact that, when weighed against the evidence opposing the fact, is more convincing and has a greater probability of truth.”  Minn. Stat. § 268.03, subd. 2 (Supp. 2003).

I.

            Whether a person quit or was discharged from employment is a question of fact.  Shanahan v. Dist. Memorial Hosp., 495 N.W.2d 894, 896 (Minn. App. 1993).  “A discharge from employment occurs when any words or actions by an employer would lead a reasonable employee to believe that the employer will no longer allow the employee to work for the employer in any capacity.  A layoff due to lack of work shall be considered a discharge.”  Minn. Stat. § 268.095, subd. 5(a) (2002).

            The commissioner’s representative found:

            The evidence in the present record shows that [Garrison’s] job assignment ended on January 28, 2004.  At that time, the employer did not offer [Garrison] any other work.  [Hendriksen] asked [Garrison] not to file for unemployment benefits in order to give the employer an opportunity to find other employment for her.  We therefore conclude that [Garrison] was laid off due to a lack of work on January 28, 2004. 

 

These findings are reasonably supported by the evidence in the record.

            Citing Garrison’s testimony that she believed that she was still employed on January 29 and that she severed the employment relationship on February 3 because ECI did not offer a new assignment within what she considered to be a reasonable commuting distance, ECI argues that Garrison was not discharged on January 28.  ECI also argues that the ULJ asked confusing and misleading questions of Hendriksen to elicit testimony that ECI separated Garrison from employment or laid her off in January 2004.  But Minn. Stat. § 268.095, subd. 5(a), expressly states that “[a] layoff due to a lack of work shall be considered a discharge,” and evidence in the record reasonably supports the commissioner’s representative’s finding that Garrison “was laid off due to a lack of work on January 28, 2004.”  The determination whether a discharge occurred is based on the statutory definition and not on the subjective perceptions of the employer and the employee.

            ECI argues that the period between the end of Garrison’s work at Imation and the offer of employment on February 3 was too short to be considered a layoff and, therefore, when Garrison refused the February 3 offer, she should be deemed to have quit as a matter of law.  But ECI cites no authority to support the position that a layoff cannot occur immediately upon the cessation of work.  See Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975) (stating burden of showing error rests upon party that asserts error).

            ECI cites Hill v. Contract Beverages, Inc., 307 Minn. 356, 357-58, 240 N.W.2d 314, 315-16 (1976), and Krantz v. Loxtercamp Transport, Inc., 410 N.W.2d 24, 26-7 (Minn. App. 1987).  But both Hill and Krantz addressed whether an employee had good cause for quitting employment.  Neither case addressed whether an employee was discharged or quit, and, therefore, neither case is relevant to whether Garrison was laid off due to a lack of work and, therefore, was discharged on January 28.

II.

            Whether an applicant for benefits is subject to a disqualification from benefits is a question of law.  Markel v. City of Circle Pines, 479 N.W.2d 382, 383 (Minn. 1992).

            Minn. Stat. § 268.095, subd. 8(a) (Supp. 2003), states, “An applicant shall be [disqualified from][2] all unemployment benefits if the applicant, without good cause:  (1) failed to apply for available, suitable employment of which the applicant was advised by the commissioner or an employer; (2) failed to accept suitable employment when offered; or (3) avoided an offer of suitable employment.”  Minn. Stat. § 268.095, subd. 11(a) (Supp. 2003), states, “Subdivision 8 shall only apply to offers of suitable employment made during the applicant’s benefit year.”  “‘Benefit year’ means the period of 52 calendar weeks beginning the date a benefit account is effective.”  Minn. Stat. § 268.035, subd. 6 (2002).  “A benefit account shall be established effective the Sunday of the calendar week that the application for unemployment benefits was filed.”  Minn. Stat. § 268.07, subd. 3b(a) (Supp. 2003).

            The commissioner’s representative found that Garrison refused to accept an offer of employment on February 3, 2004, but because Garrison’s benefit year did not begin until February 15, 2004, the disqualification under Minn. Stat. § 268.095, subd. 8(a), for failing to accept an offer of employment, does not apply.  We agree.  Minn. Stat. § 268.095, subd. 11(a), unambiguously states that a disqualification under Minn. Stat. § 268.095, subd. 8, for failing to accept an offer of suitable employment, only applies “to offers of suitable employment made during the applicant’s benefit year.”  When a statute is unambiguous, this court may not construe or interpret the statute, but rather must give effect to the plain meaning of the statutory language.  Tuma v. Comm’r of Econ. Sec., 386 N.W.2d 702, 706 (Minn. 1986).

            ECI argues that the commissioner’s representative erred in applying Johnson v. Dolphin Staffing, 614 N.W.2d 252 (Minn. App. 2000), review denied (Minn. Sept. 13, 2000), because Johnson involved a temporary agency, and ECI is not a temporary agency.  But the issue addressed in Johnson, whether disqualification occurs when a claimant rejects a job offer that predates a claim for benefits, is now governed by statute.  2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, § 14 (codified at Minn. Stat. § 268.095, subd. 11(a)).  Further, Minn. Stat. § 268.095, subd. 11, expressly applies “to all covered employment, full time or part time, temporary or of limited duration, permanent or of indefinite duration.”

            ECI argues that the February 3 offer was an offer of suitable employment and that Garrison unreasonably limited the distance she was willing to commute.  But because the offer of employment was not made during Garrison’s benefit year, it is irrelevant whether the employment offered was suitable employment.

            ECI argues that it is unfair to use the filing date, rather than the date an unemployment claim accrues, to determine whether failing to accept an employment offer disqualifies an applicant from receiving benefits.  But, as we have already stated, the law unambiguously states that a disqualification under Minn. Stat. § 268.095, subd. 8, for failing to accept an offer of suitable employment only applies “to offers of suitable employment made during the applicant’s benefit year.”  Minn. Stat. § 268.095, subd. 11(a).  When interpreting statutes, this court cannot “supply that which the legislature purposefully omits or inadvertently overlooks.”  Green Giant Co. v. Comm’r of Revenue, 534 N.W.2d 710, 712 (Minn. 1995).          

            ECI argues that it was not afforded a sufficient opportunity to cross-examine Garrison regarding her belief that she remained employed by ECI after January 28.  The ULJ allowed some testimony on this point, and ECI’s argument does not indicate that additional cross-examination would have elicited relevant evidence that was not already in the record.  The ULJ has discretion to exclude any evidence that is “irrelevant, immaterial, unreliable, or unduly repetitious.” Minn. R. 3310.2922 (2003).  ECI argues that additional cross-examination might have resulted in Garrison “admitt[ing] she knew there was ongoing work near ECI’s office which she could have performed even after filing for benefits, simply by phoning and saying she changed her mind and would commute.”  But the disqualification conditions under Minn. Stat. § 268.095, subd. 8(a), require that the commissioner or an employer advise the applicant about suitable employment or that the applicant avoid, or fail to accept, an offer of suitable employment, and Minn. Stat. § 268.095, subd. 11, provides that subdivision 8 only applies to offers made during the applicant’s benefit year.  Consequently, because Garrison was not advised of suitable employment and there was no offer of suitable employment during Garrison’s benefit year, Garrison’s failure to inquire about employment opportunities is irrelevant. 

            Affirmed.



[1] The law in effect at the time of discharge applies.  Brown v. Nat’l Am. Univ., 686 N.W.2d 329, 332 (Minn. App. 2004), review denied (Minn. Nov. 16, 2004).

[2] The revisor of statutes inadvertently substituted the term “ineligible for” for the term “disqualified from” in Minn. Stat. § 268.095, subds. 1, 4, 7, 8(a) (Supp. 2003).  See  Minn. Stat. § 268.095, subds. 1, 4, 7, 8(a) (2002) (using term “disqualified from”); 2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, § 11 (making other changes to Minn. Stat. § 268.095, subd. 1, but retaining term “disqualified from”); 2003 Minn. Laws 1st Spec.  Sess. ch. 3, art. 2, § 20(j), (k) (directing revisor to change the term “disqualified from” to “ineligible for” only in Minn. Stat. § 268.095, subd. 12, and then to renumber to Minn. Stat. § 268.085, subd. 13b).