This opinion will be unpublished and

may not be cited except as provided by

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






Michel J. Solien,


Wal-Mart Associates, Inc.,

Commissioner of Employment and Economic Development,


Filed April 20, 2004


Peterson, Judge


Department of Employment and Economic Development,

File No. 4431-03


Michel J. Solien, 4946 122nd Avenue Northeast, Spicer, MN  56288-9467 (pro se relator)


Wal-Mart Associates, Inc., Owatonna Location, c/o Talx UCM Services Inc., P.O. Box 283, St. Louis, Missouri  63166-0283 (respondent employer)


Lee B. Nelson, Philip B. Byrne, Minnesota Department of Employment and Economic Development, 390 Robert Street North, St. Paul, MN  55101 (attorney for respondent commissioner)


            Considered and decided by Peterson, Presiding Judge; Lansing, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


In this pro se certiorari appeal, relator Michel Solien challenges the commissioner’s representative’s decision that he is ineligible to receive unemployment compensation benefits because he was not available for suitable employment.  We affirm. 


Solien worked for respondent Wal-Mart Associates, Inc. as a loss-prevention associate.  Solien was hired in June for a full-time position.  Wal-Mart’s store manager, Dan Rodgers, testified before the unemployment law judge that when Solien, a full-time college student, was hired, he said he wanted to work only parttime in the fall.

Rodgers testified that at Solien’s 90-day performance review in September, Solien was given a 60-day notice to improve his productivity.  At the end of the 60-day-notice period on November 7, Rodgers demoted Solien from the loss-prevention position and offered him a position in the sporting-goods department.  Rodgers asked Solien to complete a shift-availability sheet indicating the hours and days that Solien was available to work in the sporting-goods department. 

Rodgers testified that Solien provided him with the hours that Solien was available, but the hours were not compatible with the evening/weekend position that Solien was offered, so he asked Solien to let him know when his availability opened up.  Rodgers also testified that Solien never followed up with the new position, and Rodgers presumed that Solien had abandoned his job.  The record does not show any objection by Solien to the job transfer.

Solien testified that he turned in the shift-availability sheet in early December after returning from his preapproved two-week vacation.  Solien testified that he handed the sheet to Rodgers, and Rodgers told him that he would call him when he could work him into the schedule, but Rodgers never contacted him.

            Solien applied for unemployment benefits, and the Department of Employment and Economic Development initially determined that Solien was not disqualified from receiving benefits.  Wal-Mart appealed, and an unemployment law judge reversed, finding that Solien was not “available for suitable employment.”  The commissioner’s representative affirmed the unemployment law judge’s decision.


            The commissioner’s representative determined that Solien is ineligible for unemployment benefits because he has not been “available for suitable employment.”  “An applicant shall be eligible to receive unemployment benefits for any week if . . . the applicant was able to work and was available for suitable employment, and was actively seeking suitable employment.”  Minn. Stat. § 268.085, subd. 1(2) (2002).  “To be considered ‘available for suitable employment,’ a student must be willing to quit school to accept suitable employment.”  Id., subd. 15(b) (2002).

            The determination which the commissioner must make in such cases is a factual one: Is the claimant in fact actively seeking work and is he in fact willing to quit college if offered suitable employment that would conflict with his college schedule?  Stated differently, the factual determi-nation which the commissioner must make is whether the claimant’s attachment to the work force is genuine.


 Goodman v. Minn. Dep’t of Employment Servs., 312 Minn. 551, 553, 255 N.W.2d 222, 223 (1977).

“We review the commissioner’s factual findings in the light most favorable to the commissioner’s decision and 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 the parties have presented conflicting evidence on the record, this court must defer to the Commissioner’s ability to weigh the evidence. . . .”  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).

            When asked by the unemployment law judge whether he would quit school if offered another job, Solien answered: “Probably not.  . . . Depending on what the job would’ve been and the pay rate, I would have to consider factors in.”  Solien’s statement that he would probably not quit school if offered a job reasonably supports the commissioner’s representative’s factual determination that Solien has not been available for suitable employment.