This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
Rudolph Ellis, Jr.,
Dolphin Clerical Group,
Commissioner of Economic Security,
Filed October 12, 1999
Dissenting, Davies, Judge
Commissioner of Economic Security
File No. 8234UC98
Rudolph Ellis, Jr., 1470 North Kent Street, St. Paul, MN 55117-3509 (relator-pro se)
Dolphin Clerical Group, T C G Incorporated, 258 Hennepin Avenue, Minneapolis, MN 55401 (respondent/employer-pro se)
Kent E. Todd, Minnesota Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (respondent-commissioner)
Considered and decided by Davies, Presiding Judge, Harten, Judge, and Shumaker, Judge.
U N P U B L I S H E D O P I N I O N
Relator appeals from the Commissioner of Economic Security's determination that relator is ineligible for reemployment insurance benefits because, without good cause, relator refused an offer of suitable employment. We affirm.
Relator Rudolph Ellis, Jr., worked temporary jobs for respondent Dolphin Clerical Group from November 1997 through March 7, 1998. When Ellis started with Dolphin he indicated that he had no car and would have to take the bus to jobs. He also stated that, depending on the circumstances, he might need a day or more advance notice of job availability so that he could arrange transportation.
Dolphin called Ellis's home on March 16, 1998, to offer a job in Bloomington, reachable by bus. Dolphin left a message with a woman who answered the telephone. Ellis returned the call on March 18, 1998, but the job had been filled.
On March 19, 1998, Dolphin called Ellis and left a message about a job in Roseville, also accessible by bus. Ellis called back shortly thereafter but the job had been filled.
Dolphin called Ellis again at 8:47 a.m. on March 20, 1998, to offer a job at the same Roseville location as offered on March 19, 1998. The job was for the type of work Ellis had been doing for Dolphin and at a rate of pay slightly higher than he had customarily received. The job was to start at 11:00 a.m. Ellis said that he could not take the job because he had some things to take care of and had to get his shoes resoled. Dolphin had no jobs to offer Ellis after that.
Ellis applied for reemployment insurance benefits. A claims adjudicator found him eligible to receive benefits, but, after an evidentiary hearing, a reemployment insurance judge found him ineligible, ruling that Ellis "failed to apply for or avoided an offer of suitable employment without good cause." The commissioner's representative affirmed. Ellis appealed.
D E C I S I O N
An employee is disqualified from receiving reemployment insurance benefits if he, without good reason, fails to accept an offer of suitable reemployment. Minn. Stat. § 268.095, subd. 8 (1998). The burden is on the employer to prove that it made an offer of employment or reemployment to an employee. Gonsior v. Alternative Staffing, Inc., 390 N.W.2d 801, 806 (Minn. App. 1986), review denied (Minn. Aug. 27, 1986); LaSalle Cartage Co., Inc. v. Hampton, 362 N.W.2d 337, 341 (Minn. App. 1985). The offer must be definite, so that the employee can either expressly accept or reject the offer. Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995); Larson v. Pelican Lake Nursing Home, 353 N.W.2d 647, 649 (Minn. App. 1984).
Our scope of review is very limited. We may not disturb the commissioner's representative's findings if there is any evidence reasonably tending to support them. Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995). Furthermore, we are to review the evidence in a light most favorable to the decision. White v. Metropolitan Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983).
In determining whether employment is suitable, the commissioner must consider, among other things, the relator's experience and the distance of the job site from the relator's residence. Minn. Stat. § 268.095, subd. 9 (1998). The employment Dolphin offered on March 20, 1998, was of the type in which Ellis had experience and was at a location accessible by bus. The employment was suitable.
If relator rejects an offer of suitable employment, it must be determined whether relator had good cause to reject it. See Minn. Stat. § 268.095, subd. 8 (providing employee disqualified from benefits if employee fails without good cause to accept suitable employment). "Good cause" is defined as "some necessitous and compelling reason for refusal." Minn. R. 3305.0800, subp. 18 (1997). The reemployment insurance judge found that Ellis could not recall what specific circumstances prevented him from accepting the March 20, 1998 job offer. Ellis testified that he must have had a good reason for refusal. The judge also found that Ellis presented no evidence that the appointments he had made were difficult to change or were necessary for his well-being, such as a medical appointment.
The record is devoid of evidence that a necessitous and compelling reason caused Ellis to not accept the offer of suitable employment Dolphin made to him on March 20, 1998.
DAVIES, Judge (dissenting).
I respectfully dissent.
According to the commissioner’s findings, appellant’s employer, a temporary employment service, stopped offering him placements based on his single failure to accept a temporary position on slightly more than two hours’ notice. This is not a termination based on conduct so contrary to the employer’s interests as to disqualify an employee from reemployment benefits.
More puzzling is the commissioner’s and the majority’s treatment of this failure to accept one placement--in a seven-day job--both as conduct justifying a disqualifying termination and also as a refusal to accept suitable employment after discharge. I have never seen a case in which the same conduct served both purposes. Nor have I ever seen a case where refusing anything like a single seven-day placement has been viewed as refusal of "suitable employment."
I would reverse the disqualification. But, finally, if appellant is to be disqualified, the disqualification should last just seven days, the duration of the employment allegedly rejected. Minn. Stat. § 268.095, subd. 1 (1998) (changing language of statute from "good cause" to "good reason").