This opinion will be unpublished and

may not be cited except as provided by

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







Ismahan M. Abdi,





Masterson Personnel, Inc.,



Commissioner of Employment

and Economic Development,




Filed April 13, 2004

Klaphake, Judge


Department of Employment and Economic Development

File No. 2580 03



Ismahan M. Abdi, P.O. Box 8010, Minneapolis, MN  55408-0010 (pro se respondent)


T. Michael Kilbury, Peterson, Logren & Kilbury, P.A., 250 Wright Building, 2233 University Avenue West, St. Paul, MN  55114-1629 (for relator)


Lee B. Nelson, Katrina Gulstad, Minnesota Department of Employment and Economic Development, 390 Robert Street North, St. Paul, MN 55101 (for respondent Commissioner)


            Considered and decided by Harten, Presiding Judge, Randall, Judge, and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N


            Relator Masterson Personnel, Inc. challenges a decision by a representative of respondent Commissioner of Employment and Economic Development, determining that pro se respondent Ismahan M. Abdi was not disqualified from receiving unemployment benefits because she had good cause to refuse Masterson’s offer of employment.  Masterson argues that Abdi quit her employment without good cause, that she committed employment misconduct when she did so, and that the commissioner’s representative violated constitutional prohibitions against the establishment or preference of religion.

            Because Masterson failed to appeal from the department’s initial determination that Abdi was not discharged from employment for misconduct, Masterson cannot now argue that Abdi quit her employment or that she committed misconduct.  We therefore decline to address these issues.

            Because the commissioner’s representative did not err in determining that Abdi had good cause to refuse to accept Masterson’s offer to return to work under the same terms and conditions as her previous position, we affirm.


            Our review of an unemployment case is limited to determining whether the record reasonably supports the decision of the commissioner’s representative.  Tuff v. Knitcraft, 526 N.W.2d 50, 51 (Minn. 1995).  The findings of the commissioner’s representative are reviewed in a light most favorable to the decision.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002); Markel v. City of Circle Pines, 479 N.W.2d 382, 383-84 (Minn. 1992).  When witness credibility is at issue, this court must defer to the commissioner’s representative’s ability to make those determinations.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996); Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).

            An applicant for unemployment benefits is disqualified from receiving those benefits if he or she fails to accept suitable employment, without good cause, when such employment is offered.  Minn. Stat. § 268.095, subd. 8 (2002) (“An applicant shall be disqualified from all unemployment benefits if the applicant, without good cause . . . failed to accept suitable employment when offered.”).  “Suitable employment” is defined as “employment in the applicant’s labor market area that is reasonably related to the applicant’s qualifications.”  Minn. Stat. § 268.035, subd. 23a (2002).  “Good cause” is defined as “a reason that would cause a reasonable individual who wants suitable employment to fail to apply for, accept, or avoid suitable employment.”  Minn. Stat. § 268.095, subd. 8(b).

            Here, the commissioner’s representative found that Masterson offered Abdi suitable employment, a finding that neither party challenges.  The only issue involves whether Abdi’s reason for declining that employment constituted “good cause.”  The commissioner’s representative found that Abdi refused the offered position because she “believed that as a Muslim she should wear a long, ankle-length dress and not wear pants.”  The commissioner’s representative further determined that Abdi “had a sincerely held religious belief that wearing pants was contrary to her religion, even though [her] belief developed after she attended Ramadan activities, and [that] her religious beliefs constitute[d] good cause for [her] refusal of suitable employment.”

            The United States Supreme Court has held that a state cannot deny unemployment benefits to an applicant who refuses a position based upon his or her religious beliefs, because such a denial violates the Free Exercise Clause of the First Amendment.  See, e.g., Frazee v. Ill. Dep’t of Employment Sec., 489 U.S. 829, 834, 109 S. Ct. 1514, 1517-18 (1989) (holding applicant not disqualified when he refused position that would have required him to work on Sundays, which was contrary to his religious beliefs); Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U.S. 136, 139-41, 107 S. Ct. 1046, 1048-49 (1987) (holding that Florida’s refusal to award unemployment benefits to employee discharged for refusing to work on Sabbath violated Free Exercise Clause); Thomas v. Review Bd., Ind. Employment Sec. Div., 450 U.S. 707, 718-19, 101 S. Ct. 1425, 1432 (1981) (holding man who quit because it was against his religious beliefs to fabricate weapons had “good cause” to quit); Sherbert v. Verner, 374 U.S. 398, 403-04, 83 S. Ct. 1790, 1794 (1963) (holding applicant who would not work on Saturday due to her religious beliefs was eligible to receive unemployment benefits).  These cases make it clear that the department would violate Abdi’s right to freedom of religion if it forced her to choose between her religious beliefs and employment.

            Masterson claims that these cases are no longer controlling precedent due to the decision in Employment Div., Dep’t of Hum. Res. of Ore. v. Smith, 494 U.S. 872, 110 S. Ct. 1595 (1990).  In Smith, Oregon denied unemployment benefits to several employees who had been discharged for misconduct after being convicted of using peyote as part of legitimate Native American religious practices.  The Supreme Court affirmed the denial of benefits and held that when the law justifiably prohibits behavior that incidentally touches on religious beliefs or conduct, the state can deny unemployment benefits.  Id. at 878-79, 110 S. Ct. at 1599-1600.

            The Minnesota Supreme Court has read Smith as holding “that a generally applicable and otherwise valid regulatory law which was not intended to regulate religious conduct or belief and which incidentally burdens the free exercise of religion does not violate the free exercise clause of the first amendment.”  Hill-Murray Fed. of Teachers v. Hill-Murray High Sch., 487 N.W.2d 857, 862 (Minn. 1992); see also State v. Hershberger, 462 N.W.2d 393, 396 (Minn. 1990) (describing Smith as holding that law of general application, which does not intend to regulate religious belief or conduct, is not invalid because it incidentally infringes on religious practices).  The supreme court has also held that Minnesotans are afforded greater protection under the Minnesota Constitution than that afforded by SmithSee Hershberger, 462 N.W.2d at 396 (holding that once claimant has demonstrated sincere religious belief, state must demonstrate that public safety cannot be achieved by alternative means).

            The evidence here shows that the conduct at issue, Abdi’s refusal to wear pants to work, violated Masterson’s client’s dress code policy, which the client enacted for safety reasons.  No evidence was presented, however, to show that the type of policy enforced by the client at its work site is widely followed elsewhere or is mandated by some state or local regulation.  And, as noted by the unemployment law judge:  “There is insufficient evidence that [Abdi’s] wearing a long skirt would create an unreasonable burden on her ability to perform her normal and usual assembly or packaging job duties within the workplace, other than with [this particular client’s] account, or cause an unreasonable hardship for employers as a whole.”  Thus, Masterson has failed to show that its client’s policy was a “generally applicable and otherwise valid regulatory law” or that it was necessary to public safety.

            Nor has Masterson explained why it was unable to accommodate Abdi’s sincerely held religious beliefs by offering her some other type of work with another client that would not have interfered with those beliefs.  An individual with sincerely held religious beliefs has good cause to refuse an offer of employment when the terms of that employment directly conflict or interfere with his or her beliefs, particularly when the employer seemingly could, but fails, to make some reasonable accommodation.

            We therefore affirm the decision of the commissioner’s representative.