This opinion will be unpublished and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
William C. Steele,
Department of Employment and Economic Development,
Filed June 20, 2006
Department of Employment and Economic Development
File No. 19307 04
William C. Steele,
Linda A. Holmes, Department of Employment and Economic Development, E200 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for respondent)
Considered and decided by Peterson, Presiding Judge; Halbrooks, Judge; and Minge, Judge.
Relator challenges the determination of the senior-unemployment-review judge (SURJ) that under Minn. Stat. § 268.085, subd. 2(5) (2004), he is ineligible for unemployment benefits because he works more than 32 hours per week as a self-employed real-estate agent. Because the record reasonably supports the SURJ’s decision and because the decision is correct as a matter of law, we affirm.
Relator William Steele was the executive director of the Minneapolis Jaycees for 15 years before getting laid off in October 2004. He has also worked in real estate since 1995. Relator established a benefit account with respondent Minnesota Department of Employment and Economic Development (DEED) shortly after being laid off. In December 2004, relator informed the agency that he had been working more than 40 hours per week in self-employment as a real-estate agent. DEED then determined that relator was ineligible for unemployment benefits under Minn. Stat. § 268.085, subd. 2(5) (2004), because he had been performing 32 or more hours of services in a week. Relator appealed, and the unemployment-law judge affirmed.
Relator appealed that determination, arguing that the DEED representative was impermissibly using the terms “work” and “performing services” interchangeably. The SURJ determined that the terms may be used interchangeably in this context and concluded that relator is ineligible for benefits after October 30, 2004, the date he began working more than 32 hours per week. Relator appeals to this court by writ of certiorari.
courts accord the decision of the SURJ “particular deference,” and affirm it if
reasonably supported by the record. Tuff
v. Knitcraft Corp., 526
N.W.2d 50, 51 (
Relator argues that the SURJ erred by ruling that he is ineligible for unemployment benefits for the weeks he worked more than 32 hours per week as a self-employed real-estate agent. The crux of relator’s argument is his assertion that the SURJ impermissibly used the terms “work” and “performing services” interchangeably in reaching that ineligibility determination.
Stat. § 268.085, subd. 2(5) (2004), provides that “[a]n applicant shall not be
eligible to receive unemployment benefits for any week: . . . that the
applicant is performing services 32 hours or more, in employment, covered
employment, noncovered employment, volunteer work, or self-employment
regardless of the amount of any earnings.”
Relator contends that he is not ineligible under this subdivision
because he was working for himself, not providing services as a real-estate
agent, and because such work does not fall within the meaning of “performing
services” under the statute. Relator
points to this court’s unpublished decision in Roedl v. Comm’r of Employment
& Econ. Dev., in which we adopted the definition of “service” found in The
American Heritage College Dictionary:
“[e]mployment in duties or work for another . . . [;] [w]ork done for
others as an occupation or a business.”
No. A04-781, 2005 WL 287969, at *2 (Minn. App. Feb. 8, 2005) (alterations
in original) (citing The
DEED argues that services need not be performed for others in order to be considered services under Minn. Stat. § 268.085, subd. 2(5). DEED contends that it simply “makes no sense that the statute would distinguish between weeks when work is being put into the general operation of a self-employed person’s business and the hours spent that are billable to particular clients.”
statutory provisions should be interpreted in light of one another, where those
provisions relate to the same subject matter.”
Lemmerman v. ETA Systems, Inc.,458 N.W.2d 431, 434 (
points to Minn. Stat. § 268.035, subd. 9, in which he argues, “the legislature
specifically distinguishes between ‘services or work’” by using the terms
alternatively. That subdivision does
indeed repeatedly refer to “work or services.”
Minn. Stat. § 268.035, subd. 9(2) (“work or service”), subd. 9(3)
(“services or work”), subd. 9(4) (“service or work”), subd. 9(5) (“work or
services”), subd. 9(6) (“work or service”), subd. 9(7) (“work or
service”). But subdivision 13 of the
same section uses “service” and “work” interchangeably. Subparagraph 1 of subdivision 13 defines an
employee as an “individual who is performing or has performed services for an employer in employment,”
while subparagraph 2 also defines an employee as an “individual employed to
perform or assist in performing the work
of any agent or employee of the employer.”
also note that the statutory provision in question explicitly applies to the
self-employed, referring to “performing services 32 hours or more in . . .
statutory language is clear and unambiguous, courts must give effect to its
plain meaning. Tuma v. Comm’r of
Econ. Sec., 386 N.W.2d 702, 706 (
The SURJ concluded that “[t]here is no indication that the Legislature intended the terms ‘work’ and ‘services performed’ to have the distinction [relator] attempts to draw.” That conclusion is supported by the varied and inconsistent use of the terms “work” and “service” in Minn. Stat. § 268.035 and by the statute’s clear application to the self-employed.
Relator also asserts that the SURJ’s findings concerning the hours relator worked are not supported by reasonable evidence. But the evidence reasonably supports the SURJ’s finding that relator worked more than 32 hours per week as a real-estate agent and/or in the mortgage business since October 31, 2004. Relator’s answers to the SURJ’s specific and repeated questions at the hearing about the number of hours he “worked” and/or “provided services” were vague and often non-responsive. For example, when the SURJ asked relator how much time he had “been putting into putting together [relator’s] website,” relator answered, “A lot.” While relator testified that he had not put in 32 hours during “the majority of weeks,” he admitted to a DEED representative that he had been working between 30 and 50 hours per week on his real-estate business since being laid off. Noting relator’s admissions and vague answers, the SURJ concluded that “we are convinced that [relator] was working more than thirty-two hours per week on his real estate business after learning of the Project GATE program.”
the only evidence on this point is relator’s testimony and the evidence of
relator’s statement to the DEED representative, resolution of this issue turns
on the SURJ’s credibility determination.
Credibility determinations are the province of the SURJ and are accorded
deference on appeal. Munro Holding,
LLC v. Cook, 695 N.W.2d 379, 384 (
Relator argues that DEED’s promotion of Project GATE created a reasonable belief that relator could start or expand a business while seeking employment without becoming ineligible for benefits. Even if DEED’s promotion of Project GATE created a belief that relator could start or expand a business while seeking employment without losing eligibility for benefits, that belief would only be reasonable if relator were a participant in Project GATE. The evidence, including relator’s testimony, indicates that relator was not accepted into Project GATE and that relator was aware at the time of his first Project GATE orientation session that he had not been accepted into the program. The evidence also shows that the Project GATE website that relator registered with explicitly explains the selection process for participation in Project GATE.
Relator seems to confuse his compliance with DEED’s Workforce Center Work Search Plan with compliance with the statutory eligibility requirements. His suggestion that he somehow met the statutory eligibility requirements for unemployment compensation by virtue of his compliance with his work-search plan is unsupported by authority and lacks merit.
 As an unpublished decision, Roedl is not precedential. See Minn. Stat. § 480A.08, subd. 3(b), (c)(5) (2004) (unpublished opinions “must not be cited as precedent, except as law of the case, res judicata, or collateral estoppel[;]” “[u]npublished opinions of the court of appeals are not precedential” (respectively)).