Opinion
No. A06-699.
Filed April 24, 2007.
Appeal from the Department of Employment and Economic Development, File No. 1115-06.
Mary Axelson, (pro se relator).
Kelly Services, Inc., (respondent).
Lee B. Nelson, Linda A. Holmes, Department of Employment and Economic Development, (for respondent Department of Employment and Economic Development).
Considered and decided by Lansing, Presiding Judge; Peterson, Judge; and Worke, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2006).
UNPUBLISHED OPINION
In this certiorari appeal from a decision of an unemployment-law judge (ULJ) that she is ineligible to receive unemployment benefits because she avoided an offer of suitable employment without good cause, relator argues that the employer did not make an offer of suitable employment and that the ULJ erred by refusing to hold an additional evidentiary hearing to permit relator to submit evidence that the job was not suitable because it paid less than half the local market rate for relator's customary occupation. We affirm.
FACTS
Relator Mary Axelson worked full time for respondent Kelly Services, Inc. providing services as a quality manager for a client named Cenveo. Relator was paid $20 per hour, and her assignment at Cenveo ended on October 18, 2005. When relator called Kelly Services on December 15, 2005, to obtain some information about her unemployment claim, she was told that Kelly Services had a marketing-assistant opportunity to offer her that paid $18 per hour. The person who relator spoke to at Kelly Services wanted relator to talk to another person to get more details about the opportunity, but relator said that she did not have time to talk and that she would check back. When she was asked to give an estimated date and time when she would call back, relator said that she did not have one and hung up the phone. Relator testified that she did not call Kelly Services back because it slipped her mind. Relator also testified that no bona fide offer of work was made and that the details of the marketing position were not presented to her as Kelly Services had presented them to the Department of Employment and Economic Development (department).
The department determined that relator was ineligible to receive unemployment benefits because on December 15, 2005, she refused an offer of suitable employment without good cause. Relator appealed, and following a hearing, a ULJ found that relator avoided an offer of suitable employment without good cause and is ineligible for unemployment benefits. Relator filed a request for reconsideration and requested an additional evidentiary hearing to submit additional evidence to show that the job that she was offered was not suitable. The ULJ affirmed the original decision after determining that relator did not have good cause for failing to submit the evidence at the initial hearing and that the evidence submitted at the initial hearing showed that the job was suitable. This certiorari appeal followed.
DECISION
This court may affirm the decision of the ULJ or remand for further proceedings, or it may reverse or modify the decision
if the substantial rights of the petitioner may have been prejudiced because the findings, inferences, conclusion, or decision are:
(1) in violation of constitutional provisions;
(2) in excess of the statutory authority or jurisdiction of the department;
(3) made upon unlawful procedure;
(4) affected by other error of law;
(5) unsupported by substantial evidence in view of the entire record as submitted; or
(6) arbitrary or capricious.
Minn. Stat. § 268.105, subd. 7(d) (2006).
An applicant for unemployment benefits "shall be ineligible for all unemployment benefits for eight calendar weeks if the applicant, without good cause . . . avoided an offer of suitable employment." Minn. Stat. § 268.085, subd. 13c(a)3 (Supp. 2005). "`Good cause' is a reason that would cause a reasonable individual who wants suitable employment to . . . avoid suitable employment." Id., subd. 13c(b).
The supreme court has held that when an employer advised an employee of positions that were available, but the employee refused to meet with the employer to discuss the positions, the employee was disqualified from receiving unemployment benefits because of his failure to apply for available suitable work. Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996). In Lolling, specific job assignments were not discussed because the employee made threats about legal action and refused to go to the employer's office to discuss specific positions that were available. Id.
Relator argues that Kelly Services did not offer her a position. But we conclude that the reasoning in Lolling applies to relator. Kelly Services presented evidence that it told relator that a marketing-assistant position was available. Relator testified that she did not call Kelly Services back to find out more about the position. The ULJ determined that relator's "refusal to listen to the information about this job on December 15, 2005 and her refusal to call back and check this job out at a later time does show an avoidance of offer of suitable employment." Substantial evidence supports the ULJ's findings that Kelly Services informed relator that Kelly Services had a marketing-assistant job available and that relator said that she would call back about the job, but she did not call back. Therefore, as in Lolling, even though relator did not learn specific information about the available position, Kelly Services offered relator a position, and relator's failure to learn the details or specifics about the position was due to her own conduct.
The ULJ also determined that relator avoided the offer of suitable employment without good cause. The only reason that relator gave for failing to call back to find out more about the available position is that it slipped her mind. Simply forgetting to call is not a reason that would cause a reasonable individual who wants suitable employment to fail to call to find out more about an available position.
Relator argues that an additional evidentiary hearing should have been held to permit her to present evidence about the local market wages for positions in quality management to show that the available marketing-assistant position was not suitable employment. Relator did not submit this evidence at the evidentiary hearing before the ULJ.
In deciding a request for reconsideration, the unemployment law judge shall not, except for purposes of determining whether to order an additional evidentiary hearing, consider any evidence that was not submitted at the evidentiary hearing conducted under [Minn. Stat. § 268.105,] subdivision 1.
The unemployment law judge must order an additional evidentiary hearing if an involved party shows that evidence which was not submitted at the evidentiary hearing: (1) would likely change the outcome of the decision and there was good cause for not having previously submitted that evidence; or (2) would show that the evidence that was submitted at the evidentiary hearing was likely false and that the likely false evidence had an effect on the outcome of the decision.
Minn. Stat. § 268.105, subd. 2(c) (Supp. 2005).
"A reviewing court accords deference to a ULJ's decision not to hold an additional hearing and will reverse that decision only for an abuse of discretion." Skarhus v. Davanni's Inc., 721 N.W.2d 340, 345 (Minn.App. 2006). The ULJ concluded that because relator did not have good cause for failing to previously submit the additional evidence, a new hearing would not be held to admit the evidence. Relator contends that she did not submit the evidence because the hearing date was moved from February 9 to February 6. But relator agreed to change the hearing date, and there is no indication in the record that relator referred to additional evidence during the evidentiary hearing or asked to submit additional evidence after the hearing. Nor is there any indication in the record that the additional evidence would show that the evidence that was submitted at the evidentiary hearing was likely false. The ULJ did not abuse his discretion in denying relator's request for an additional evidentiary hearing to submit evidence that was not submitted at the initial evidentiary hearing.