This opinion will be unpublished and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

A05-1466

 

Abdiaziz J. Ali,

Relator,

 

vs.

 

Department of Employment and Economic Development,

Respondent.

 

Filed ­­­May 23, 2006

Affirmed

Dietzen, Judge

 

Department of Employment and Economic Development
 Agency File No. 702705

 

Ross L. Leuning, 140 East Main Street, P.O. Box 273, Owatonna, MN 55060 (for relator)

 

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

 

            Considered and decided by Stoneburner, Presiding Judge; Wright, Judge; and Dietzen Judge.

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

 

            Relator challenges the decision by the senior unemployment-review judge (SURJ) that he is ineligible to receive unemployment-compensation benefits because he was unavailable for suitable employment, arguing that the SURJ failed to consider relator’s testimony that he was willing to leave school should full-time employment conflict with his education.  We affirm. 

FACTS

 

            Relator Abdiaziz J. Ali worked full time as a packager for Viracon, a glass manufacturing company, from January 2004 through February 2005.  In January 2005, appellant began attending Minnesota State University-Mankato as a full-time student. 

            After being laid off from his employment, relator established an unemployment-benefits account with the Minnesota Department of Employment and Economic Development (DEED), effective March 13, 2005.  As part of the process, relator completed a “Student Statement on Eligibility” form regarding his student status and job search.  Relator identified his primary occupation as “Student looking for job.”  Appellant answered “yes” to the question of whether his schooling affected his ability to seek or accept a full-time job, explaining that he could “look for work sometimes in the morning.”  Relator answered “yes” to the question of whether he was seeking work, stating that he is applying for “any kind of work that . . . fit[s] in my school schedule.”  In response to the question regarding what days and hours he is willing to work, relator responded “After 4:00 p.m.”  Relator answered “no” to the question that asked if he was willing to quit school if offered a suitable full-time job, stating “my education is more important for me but if I have to I am going to quit in order to survive.” 

DEED determined that relator was unavailable for suitable employment and, therefore, ineligible to receive unemployment benefits.  Relator appealed DEED’s determination, and a telephone hearing was conducted before an unemployment-law judge (ULJ).  Relator testified that he was a full-time student at Minnesota State University-Mankato at the time he applied for unemployment benefits.  When questioned about his statement on the form that education was more important than working, relator testified that this was “[n]ot really” the case because “in order for me to survive, first I have to get a job and then I can see if I can go to school or not, you know?” 

            The ULJ found that relator was a full-time student and that his testimony that he was willing to leave school to accept employment was not credible given his contradictory responses on the student-eligibility form.  The ULJ affirmed DEED’s determination that relator was “not available for suitable employment” and therefore ineligible for unemployment benefits. 

            Relator appealed the ULJ’s decision to the SURJ, who ordered that the findings of fact and decision of the ULJ be adopted as the final findings of fact and decision of DEED.  Relator appealed by writ of certiorari.

D E C I S I O N

 

            Relator argues that the SURJ’s decision that he is ineligible for unemployment benefits based on unavailability for work is contrary to the evidence because he was willing to quit school if he found suitable employment. 

            “When reviewing a decision of the [SURJ], this court’s scope of review is very narrow.”  Markel v. City of Circle Pines, 479 N.W.2d 382, 383 (Minn. 1992).  Appellate courts accord decisions of the SURJ “particular deference.”  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  This court will review the ULJ’s findings as adopted by the SURJ in the light most favorable to the decision and will not reverse “so 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 reviewing questions of law, this court is not bound by the [SURJ’s] conclusions of law, but is free to exercise its independent judgment.”  Markel, 479 N.W.2d at 384. 

            Eligibility to draw unemployment benefits requires an applicant to be “available for suitable employment,” which means that “an applicant is ready and willing to accept suitable employment in the labor market area.”  Minn. Stat. § 268.085, subds. 1(2), 15(a) (2004).  An applicant’s attachment to the work force must be genuine.  Id., subd. 15(a).  “An applicant may restrict availability to suitable employment, but there must be no other restrictions, either self-imposed or created by circumstances, temporary or permanent, that prevent accepting suitable employment.”  Id.  An applicant who places “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).  An applicant “must be available for daytime employment, if suitable employment is performed during the daytime, even though the applicant previously worked the night shift.”  Id. 

            “To be considered ‘available for suitable employment,’ a student must be willing to quit school to accept suitable employment.”  Id., subd. 15(b).  Minnesota courts have had occasion to consider whether enrollment in university programs is compatible with such availability.  See, e.g., Goodman v. Minn. Dep’t of Employment Servs., 312 Minn. 551, 553, 255 N.W.2d 222, 223 (1977) (holding that factual determination required to determine student eligibility for unemployment benefits is whether student’s attachment to the work force is genuine); Semanko v. Dep’t of Employment Servs., 309 Minn. 425, 428, 244 N.W.2d 663, 665 (1976) (concluding that student who moved to full-time student status upon being laid off was not available for work).  While enrollment in an education program does not per se establish unavailability, the availability for work or “attachment” to the workforce must be clear and unrestricted.  Semanko, 309 Minn. at 428, 244 N.W.2d at 665; Goodman, 312 Minn. at 552, 255 N.W.2d at 223. 

            Here, relator stated in the student-eligibility form that his education was “more important” and that he would quit college only if required “to survive.”  Relator’s testimony at the hearing, which contradicted his earlier written statements, gave rise to questions of credibility that were resolved by the ULJ as factfinder.  The ULJ made findings, which the SURJ later adopted, that relator’s written statements in the student eligibility form were more credible than his testimony.  And this court defers to the SURJ’s determination regarding witness credibility and conflicting evidence.  Jenson v. Dep’t of Econ. Sec., 617 N.W.2d 627, 631 (Minn. App. 2000), review denied (Minn. Dec. 20, 2000). 

            Because there is evidence in the record that relator restricted his availability for suitable employment and did not have a genuine attachment to the work force, and given our limited scope of review, the SURJ’s decision that relator was ineligible for unemployment benefits must be affirmed. 

            Affirmed.