                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A15-0208

                              Hountcheme Y.A. Gbeyetin,
                                      Relator,

                                           vs.

                  Department of Employment and Economic Development,
                                      Respondent

                               Filed September 21, 2015
                                       Affirmed
                                      Ross, Judge

                  Department of Employment and Economic Development
                                  File No. 33082471-2

Hountcheme Y.A. Gbeyetin, Minnetonka, Minnesota (pro se relator)

Lee B. Nelson, Timothy Schepers, Department of Employment and Economic
Development, St. Paul, Minnesota (for respondent)


      Considered and decided by Larkin, Presiding Judge; Ross, Judge; and

Chutich, Judge.

                         UNPUBLISHED OPINION

ROSS, Judge

      Hountcheme Gbeyetin quit his production-assembly job because of a change to his

childcare arrangement that interfered with his work schedule. Gbeyetin applied for

unemployment benefits, and an unemployment law judge determined that he was
ineligible to receive them. Because the record supports the judge’s findings that Gbeyetin

restricted the hours that he is available to work and that he is therefore not available for

suitable replacement employment, we affirm.

                                         FACTS

       Hountcheme Gbeyetin worked full time as an assembler for Datacard Corporation

from March 2011 to October 2014. Gbeyetin quit his job and applied for unemployment

benefits. The department of employment and economic development determined that he

is ineligible to receive those benefits, and Gbeyetin appealed that determination

administratively.

       An unemployment law judge (ULJ) conducted an evidentiary hearing during

which Gbeyetin explained the circumstances of his decision to quit. He said that he

became sole custodian of his six-year-old son in February 2014. He had previously

worked shifts from 6:30 a.m. to 3:30 p.m. and was dropping his son off and picking him

up from a preschool before and after each shift. The difficulty arose when his son started

kindergarten in September 2014. The school bus that services Gbeyetin’s home was

scheduled to pick the child up later than two hours into Gbeyetin’s scheduled shift. It

would arrive at 8:51 a.m. before school and drop the child off at 4:00 p.m. after school.

Gbeyetin could therefore no longer report to work on time unless he arranged for a

different pick-up point for the child and found someone or some daycare facility that

could receive his son earlier than 6:30 a.m. and put him on the school bus. Gbeyetin

attempted unsuccessfully to find a suitable provider to accommodate these circumstances.




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       Gbeyetin informed his supervisor of the change in his childcare schedule days

before his son was scheduled to start school. He requested to work from 9:30 a.m. to 2:30

p.m. so he could accommodate his son’s bus schedule. Gbeyetin’s supervisor, Joshua

Haugland, informed Gbeyetin that Datacard “[does] not allow employees to be part time

employees” because “[i]t is something [the company has] never done and never will.”

Haugland told Gbeyetin that Datacard could not accommodate the requested 9:30 to 2:30

work schedule but that Gbeyetin could use vacation time until he made other

arrangements for his son. Gbeyetin used his vacation time to supplement his shortened

work schedule, but he soon expended all of it without succeeding to make other care and

transportation arrangements. He resigned effective October 9, 2014.

       Gbeyetin testified that, even at the date of the hearing, he still lacked a suitable

childcare arrangement. He had applied for several jobs. Some required a 6:00 a.m. start

time. Others allowed a 9:00 a.m. start time. Gbeyetin explained that unless he found

morning daycare he could not work at a job that started before 9:15 a.m. The ULJ asked

how early he could work each day, and Gbeyetin answered, “The earliest time would be

at 9:00, 9:00 or 9:15, depending on the commute.” He then clarified, “[N]ot 9:00, no

[earlier than] 9:15 because the bus pick[s] [my son] up at 8:51.” He also stated that he

had no neighbors, family, or anyone else who could provide the interim care for his son.

       The ULJ determined that Gbeyetin is not eligible for unemployment benefits. She

found that although he quit his job and would ordinarily be automatically ineligible for

benefits, by quitting due to a loss of childcare, Gbeyetin qualified for an exception to

ineligibility under Minnesota Statutes section 268.095, subdivision 1. But eligibility also


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depends on the applicant’s continued availability for suitable work, and she also found

that Gbeyetin did not meet that eligibility requirement under Minnesota Statutes section

268.085, subdivision 15. The ULJ received evidence that the employment in the field,

and the employment to which Gbeyetin had applied, normally includes positions during

hours in which Gbeyetin cannot work. She made relevant findings and reasoned as

follows:

             The preponderance of the evidence shows that Gbeyetin was
             not available for suitable employment beginning October 12,
             2014. Gbeyetin is available at 9:15 a.m. He cannot work
             before 9:15 a.m. This prevented him from continuing work at
             Data Card. It prevents him from performing any work that
             begins before 9:15 a.m. Therefore, Gbeyetin is not available
             for a full, daytime shift and is not available for suitable
             employment.

      Gbeyetin requested that the ULJ reconsider her decision, and the ULJ affirmed her

decision denying benefits. She stated that because Gbeyetin testified that he had to be

home at 8:51 to put his son on the bus and because “suitable employment for Gbeyetin

includes assembly work which may start before 8:00 a.m.,” Gbeyetin is not available for

suitable employment. Gbeyetin appeals by writ of certiorari.

                                    DECISION

      The ULJ denied Gbeyetin’s request for unemployment benefits because, although

he qualified under a quit-ineligibility exception, he is ineligible because he is not

available for suitable employment. An applicant for unemployment benefits must be

available for suitable employment to receive benefits. Minn. Stat. § 268.085, subd. 1(4)

(2014). The legislature has defined “suitable employment” as “employment in the



                                            4
applicant’s labor market area that is reasonably related to the applicant’s qualifications.”

Minn. Stat. § 268.035, subd. 23a(a) (2014). “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.” Minn. Stat. § 268.085, subd. 15(a) (2014). Someone who restricts the

hours he can work is not “available” for suitable employment under the statute if the

restricted hours “are not normal for the applicant’s usual occupation or other suitable

employment.” Id., subd. 15(d) (2014). Whether an applicant is available for suitable work

is a finding of fact that this court reviews to determine if it is reasonably supported by the

evidence. Semanko v. Dep’t of Emp’t Servs., 309 Minn. 425, 428, 244 N.W.2d 663, 665

(1976).

       Substantial evidence supports the ULJ’s finding that Gbeyetin has not made

himself available for suitable employment. At the time of the evidentiary hearing,

Gbeyetin had still not secured childcare or alternative transportation for his son, and he

could not start working earlier than 9:15. He stated that he had applied for some jobs that

start at 9:00, but nothing in the record indicates that he could or would accept any of

those positions if they required that he begin work on time. And nothing in the record

suggests that any employer would allow Gbeyetin to begin his shift later than 9:00 or

leave early enough for him to be home before the afterschool drop off. Gbeyetin asserts

on appeal that he is “able to work standard hours during the day to secure employment,

not limited by the pick up and drop off times.” But we must base our review of the ULJ’s

decision on the facts before her, and Gbeyetin’s argument on appeal contradicts the


                                              5
testimony he provided at the evidentiary hearing. He does not explain how the ULJ erred

by relying on that testimony. Nor has he asserted that there is, within the meaning of the

statute, “other suitable employment” that would accommodate his restricted work

schedule. Even if he had, the record does not support a finding that he is qualified for any

jobs outside the production jobs that he had been applying for, many of which include

6:00 a.m. start times.

       We appreciate that one might perceive a theoretical incongruity between the two

statutory provisions—one being the exception allowing for a preliminary finding of

eligibility because the person’s reason for quitting is to provide childcare, and the other

foreclosing an ultimate determination of eligibility when the person’s reason for

continued unemployment is his childcare schedule. But one might just as reasonably

suppose that the legislature intended to be more accommodating to a parent’s sudden,

work-inhibiting childcare need than to his ongoing inability to find solutions to that need.

And in any event, it is not the court’s role to reconstruct express statutory language to fix

purported gaps in the statute or to effectuate what we speculate might be the legislature’s

purpose. And to the extent the result here may seem uncompassionate, the legislature has

also clarified that the ULJ must not make eligibility determinations on equitable grounds.

Minn. Stat. § 268.069, subd. 3 (2014).

       Affirmed.




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