This opinion will be unpublished and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

A05-34

 

 

Terri L. Boe,

Relator,

 

vs.

 

Health Partners Inc.,

Respondent,

 

Department of Employment and Economic Development,

Respondent.

 

 

Filed September 6, 2005

Affirmed in part and remanded

Lansing, Judge

 

Department of Employment and Economic Development

File No. 13011 04

 

 

Terri L. Boe, 2085 Fremont Avenue East, St. Paul, MN 55119 (pro se relator)

 

Jeffrey G. Vigil, Director, Senior Litigation Counsel, Health Partners, Inc., 8100 – 34th Avenue South, Bloomington, MN 55425 (for respondent Health Partners Inc.)

 

Linda A. Holmes, Minnesota Department of Employment and Economic Development, First National Bank Building, 332 Minnesota Street, Suite E200, St. Paul, MN 55101-1351 (for respondent Department of Employment and Economic Development)

 

            Considered and decided by Klaphake, Presiding Judge; Lansing, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            In this certiorari appeal from denial of unemployment benefits, Terri Boe asserts that the senior review judge erred by concluding that she was ineligible for benefits.  Because the record at the time of the hearing established that Boe unreasonably restricted her job search, we affirm the senior review judge’s determination that Boe was ineligible for unemployment benefits, but we remand for consideration of posthearing eligibility.

F A C T S

Terri Boe was employed at Health Partners, Inc. as an appointment-center scheduling assistant from April 2004 to August 2004.  Shortly after her initial evaluation in which she was warned about her attendance, Boe missed eleven days of work.  The absences were caused by medical problems related to migraines, and Boe provided the required notice for each absence.  Health Partners terminated Boe’s employment for excessive absenteeism in early August.

            Boe applied for unemployment compensation, but a department adjudicator determined that the absences constituted employee misconduct and denied benefits.  Boe appealed that decision, and an unemployment law judge (ULJ) determined, after a de novo hearing, that her absences were not employment misconduct because they were the result of illness and Boe provided proper notice.  The ULJ, however, determined that Boe was ineligible for benefits because she restricted her availability for work to a narrow number of hours, which was not a customary restriction for office work.  Boe acknowledged, in response to the ULJ’s questioning, that she was only seeking part-time employment that would enable her to have intermittent days off to accommodate her medical condition, had only posted her resumé on two Internet sites, and had not applied for any position.

            The ULJ concluded that, because Boe had narrowed her work search to hours that were not typical for office work, she was unavailable for work from August 8, 2004, until the date of the decision, September 22, 2004.  The ULJ further concluded that, because Boe was unavailable for work, she was therefore ineligible for benefits.

            Boe appealed the ineligibility to the senior unemployment review judge.  Noting that Boe had not applied for any positions and had imposed atypical search restrictions, the senior review judge concluded that “Boe ha[d] not been available for suitable employment for the period starting August 8, 2004, and continuing until conditions change.”  Boe brings a certiorari appeal from this judgment.

D E C I S I O N

            An applicant is eligible for unemployment benefits when “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) (2004).  To be available, the applicant must be ready and willing to accept suitable employment.  Id., subd. 15(a) (2004).  Although an applicant may restrict a work search to suitable employment, the applicant may not impose other conditions that unduly limit availability.  Id.  Specifically, an “applicant who has restrictions on the hours of the day or days of the week that the applicant can or will work, that are not normal for the applicant’s usual occupation or other suitable employment, is not ‘available for suitable employment.’”  Id., subd. 15(d) (2004).

In reviewing a determination on an applicant’s eligibility for benefits, we will uphold the senior review judge’s determination if it is reasonably supported by the evidence.  See Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996) (stating standard of review applied to commissioner’s representative’s findings).  The burden of proof is on the applicant to show eligibility for unemployment benefits.  Id. 

            Boe contends that she was available for work and that she did not restrict the days she would work.  She contends that the ULJ and senior review judge misunderstood her preference for intermittent days off as a restriction on her search rather than a mere preference.  But the review judge’s determination that Boe restricted her days in a manner that was abnormal for her usual occupation is reasonably supported by the record.  At the hearing, Boe acknowledged that her search was limited and stated, “I do understand that, yes, I am looking for time frames that suit me, and if that is disqualifying me, I will have to deal with that.”  She also testified that she had not yet applied for any positions because none met her specifications. 

The absence of any work application coupled with the description of Boe’s search limitations confirms that she placed genuine restrictions on the days she was willing to work.  Although these restrictions may be necessary because of her health conditions, they do not qualify as normal conditions for Boe’s usual employment.  The senior review judge therefore had a sufficient basis in the record to determine that Boe was not available to work and was thus ineligible for benefits.  See Flores v. Dep’t of Jobs & Training, 411 N.W.2d 499, 501 (Minn. 1987) (holding that claimant who imposes unduly restrictive conditions for acceptable work is not available within the meaning of economic security act).

            Boe has submitted posthearing evidence to demonstrate that she immediately complied with the applicable requirements after the ULJ explained that her restricted search was insufficient to establish her eligibility.  She has submitted letters that list her efforts from September 22, 2004, until she obtained employment in January 2005.  Although this evidence does not affect the determination for the time preceding the hearing, Boe’s ineligibility, as stated in the senior review judge’s order, continues only “until conditions change.”  If Boe can demonstrate her compliance with eligibility requirements following the hearing, she will be able to establish the changed conditions to enable her to obtain benefits.  See Minn. Stat. §§ 268.085, subd. 1 (providing conditions for eligibility), .086, subds. 1, 9 (2004) (defining active benefit account and providing good-cause exceptions for filing continued biweekly request for unemployment benefits). 

The record reasonably supports the senior review judge’s determination that Health Partners’ termination of Boe’s employment was for reasons other than misconduct, but Boe’s employment search before September 22, 2004, was too restrictive to establish her eligibility for benefits.  We remand, however, for the department to consider Boe’s eligibility from September 22, 2004, until she obtained employment.

Affirmed in part and remanded.