                       This opinion will be unpublished and
                       may not be cited except as provided by
                       Minn. Stat. § 480A.08, subd. 3 (2016).

                            STATE OF MINNESOTA
                            IN COURT OF APPEALS
                                  A16-0730


                                 Anthony Browne,
                                     Relator,

                                        vs.

                          M. A. Mortenson Company, Inc.,
                                   Respondent,

               Department of Employment and Economic Development,
                                   Respondent.


                             Filed January 23, 2017
                             Reversed and remanded
                                Halbrooks, Judge


               Department of Employment and Economic Development
                               File No. 34273692-3

Thomas H. Boyd, John N. Sellner, Winthrop & Weinstine, P.A., Minneapolis, Minnesota
(for relator)

M.A. Mortenson Company, Inc., c/o TALX UCM Services Inc., St. Louis, Missouri
(respondent employer)

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

      Considered and decided by Rodenberg, Presiding Judge; Halbrooks, Judge; and

Kirk, Judge.
                          UNPUBLISHED OPINION

HALBROOKS, Judge

       In this certiorari appeal, relator challenges the unemployment-law judge’s (ULJ’s)

denial of his unemployment benefits, arguing (1) that the ULJ erred by determining that he

took a voluntary leave of absence or (2) in the alternative, if he quit, it was for a reason that

does not disqualify him from receiving unemployment benefits. We reverse and remand.

                                            FACTS

       Relator Anthony Browne and his wife have two children, ages 11 and 13. Browne’s

wife is employed by Delta Air Lines. She is the primary childcare provider and his mother

is the secondary provider. Browne’s mother helps care for his children, but she also works

and cares for her other grandchildren. Because the children attend a school that is outside

their district, Browne’s wife drops them off in the morning and picks them up in the

afternoon. After school, either Browne, his wife, or his mother are with the children.

       Browne is a member of his local cement masons’ union. He has worked for

Rainbow, a construction company, for several years; Rainbow seasonally discharges

Browne every December when its workload declines due to weather. Because construction

work is seasonal and he is routinely discharged, Browne has maintained an unemployment-

benefits account since 2008. During the winter, Browne helps care for his children while

his wife increases her work schedule to offset his unemployment. But he continues to be

available for employment while caring for his children.

       Rainbow discharged Browne in mid-October 2014, which was earlier than usual.

Respondent M.A. Mortenson Co., another construction company, hired him as a cement


                                               2
mason shortly thereafter. When Mortenson hired Browne, Browne’s supervisor stated that

he anticipated layoffs in December due to the weather “and [Browne] would be the first

one to get laid off.” Browne’s hours at Mortenson were 7:00 a.m. to 3:00 p.m. While

Browne worked for Mortenson, he continued to care for his children with his mother’s

help.

        On December 8, 2014, Browne told his supervisor that he was unable to continue

working for Mortenson because he needed to care for his children. Browne testified that

Mortenson could not reasonably accommodate his childcare needs. Although he stated

that he could still work for another two weeks, Browne’s supervisor told him that he would

be separated from employment on December 12, 2014, and that his employment with

Mortenson could be reassessed in January or February 2015. Then, on December 11, 2014,

one day before his expected separation, Browne informed his supervisor that his mother

was hospitalized, and his supervisor immediately discharged him.

        Browne’s supervisor filled out a human-resources action form that indicated that

Browne’s separation was involuntary due to workforce reduction. The following day, his

supervisor completed a second human-resources action form, stating that Browne

voluntarily resigned because he “went back up north.”            Browne established an

unemployment benefits account effective December 14, 2014, and began collecting

benefits.

        Browne returned to work at Rainbow in February 2015. Rainbow discharged him

in November 2015, and he applied for another unemployment-benefits account.

Respondent Minnesota Department of Employment and Economic Development (DEED)


                                            3
notified Mortenson of Browne’s application for unemployment benefits in December 2015.

Mortenson challenged this application, claiming that Browne voluntarily quit without

notice in December 2014.

       DEED determined that Browne is ineligible to receive unemployment benefits from

December 7, 2014 to April 4, 2015, because he voluntarily quit “for a personal reason not

related to the employment.” Browne appealed this determination, arguing that Mortensen

“made a clerical error in processing [his] paperwork upon separation in December 2014.”

       The ULJ held an evidentiary hearing pursuant to Minn. Stat. § 268.105, subd. 1

(2016). At the hearing, the ULJ stated that DEED determined that he “quit his employment

for personal reasons” and the issue of his eligibility for unemployment benefits “revolve[d]

around the nature of and the reasons for [his] separation from employment.” Browne, his

wife, and his mother appeared at the hearing. No one from Mortenson participated. But

the ULJ’s record included documents that were prepared by Mortenson’s agent, Equifax,

in January 2016. Those documents stated that Browne voluntarily quit without notice and

without offering a reason for quitting. The record also included Mortenson’s human-

resources action forms, which inconsistently indicated that Brown was involuntarily

discharged and voluntarily quit.

       Browne testified that, when Mortenson hired him, he told his supervisor that he

would need to take care of his children in December because his wife would be working a

more rigorous schedule. Browne stated that he approached his supervisor again on

December 8, 2014, “saying that [he was] not able to [work] anymore based off of

schedules” and childcare needs.      He testified that Mortenson could not make any


                                             4
reasonable accommodations. Then, the ULJ asked whether Browne believed his separation

from Mortenson was a leave of absence:

             Q       Okay, all right. And so I mean did you view this as a
             quit[?] I mean I know these forms say layoff, but I mean there
             was work available for you if you’d chosen to stay was there
             not[?]
             A       Yes there was additional work. But I was not able to
             based off of my schedule and child-care. My schedule, I
             misspoke, I apologize. I’m very anxious about this which is
             unnerving. With my children’s schedules with start times and
             finish time with their school days and heavy construction that
             level of accommodation on a daily basis is not allowed. An
             occasional situation such as this, I’m at work right now sitting
             in the car. These types of isolated and unique events are
             accommodated.
             Q       Okay, so but you weren’t asking for a leave of absence
             that you’d be returning[?] I mean this was an end to the
             employment[?]
             A       To the contrary. As I stated in exhibit, let me find this,
             I apologize, in my questionnaire, yes exhibit 3 page 2 I believe
             it is, excuse me page 1 of exhibit 3. When you look at the
             preformatted question, what was your employer’s response,
             yes I could have four to six weeks of layoff, to quote my
             response. Jay Cronstrom (ph) my reporting and hiring foreman
             was okay with me having a gap of time to be able to sort out
             my wife’s schedule and child-care, subsequently my mother’s
             hospitalization. It was left open-ended where either one of us
             were able to call each other and reassess. That call never
             occurred. I went back to Rainbow in that timeframe in
             February.
             Q       All right, so you took a voluntary leave of absence.
             Would that be accurate[?]
             A       Yes it was.
             Q       Okay.
             A       Well however I would like to refine that. Voluntary
             means that was elective. I don’t view it as . . .
             Q       Let me just say. Under the statute for unemployment
             purposes there’s a definition of voluntary leave of absence and
             basically it means that there’s work available, the employer has
             work available that the employer, that the employee is capable
             of performing but elects not to. And so it’s voluntary in that


                                             5
             sense that as opposed to quitting where you know a leave of
             absence would leave open the question of perhaps returning at
             some point. Quitting pretty much closes that door. So it wasn’t
             the employer laying you off due to a lack of work. Is that
             accurate[?]
             A      That is.

      Browne also challenged the accuracy of Mortenson’s human-resources form stating

that he quit, testifying that he has no connections to northern Minnesota or plans to go

there, contrary to the stated reason for leaving work on the human-resources form.

      The ULJ concluded that Browne is ineligible for unemployment benefits because,

although continuing work was available with Mortenson, Browne asked to be relieved from

his duties. Because “it was [his] choice to make himself unavailable to [Mortenson],” the

ULJ found that Browne took a voluntary leave of absence. The ULJ’s determination

resulted in an overpayment of $4,431 to Browne’s unemployment-benefits account.

      The ULJ affirmed his decision upon Browne’s request for reconsideration,

reasoning that Browne would not have needed to approach his supervisor if work had come

to an end, and, therefore, Browne asked to stop working. The ULJ addressed Mortenson’s

conflicting human-resources forms by stating that, regardless of whether Browne quit or

took a leave of absence, he is ineligible to receive unemployment benefits. Neither

decision by the ULJ addressed Browne’s childcare needs. This certiorari appeal follows.

                                    DECISION

                                            I.

      Browne argues for the first time on appeal that the ULJ erred by considering

Mortenson’s responses to DEED’s determination-of-benefits-account notices because its



                                            6
responses, which were received almost one year after he left Mortenson, were not timely.

We will not generally consider matters not argued to and considered by the ULJ. Peterson

v. Ne. Bank—Minneapolis, 805 N.W.2d 878, 883 (Minn. App. 2011) (citing Thiele v. Stich,

425 N.W.2d 580, 582 (Minn. 1988)). But we may consider matters not argued before the

ULJ in the interest of judicial economy. Bode v. Minn. Dep’t of Nat. Res., 612 N.W.2d

862, 869 (Minn. 2000). Although Browne did not make this argument in his initial appeal

from the determination of ineligibility, at the evidentiary hearing, or in his request for

reconsideration of the ULJ’s decision, we choose to address it in the interest of judicial

economy.

       Browne asserts that the ULJ erred by permitting Mortenson to raise an issue of

ineligibility because DEED should not have notified the company that he established a

benefits account. He contends that the commissioner should only notify all employers that

he was required to list on his unemployment application. See Minn. Stat. § 268.101, subd.

1(b) (2016). But DEED must also notify all base-period employers that an applicant has

established a benefits account “in order to provide the employer an opportunity to raise, in

a manner and format prescribed by the commissioner, any issue of ineligibility.” Id. A

base-period employer is any person who employed the applicant in the “most recent four

completed calendar quarters before the effective date of an applicant’s application for

unemployment benefits.” Minn. Stat. § 268.035, subds. 4(a), 14 (2016). Moreover, the

“commissioner may issue a determination on an issue of ineligibility within 24 months

from the establishment of a benefit account based upon information from any source, even




                                             7
if the issue of ineligibility was not raised by the applicant or an employer.” Minn. Stat.

§ 268.101, subd. 2(e) (2016) (emphasis added).

      Because Browne’s unemployment benefits account became effective in either

November 2015 or December 2015, the relevant base period ran between October 1, 2014,

and September 30, 2015. See Minn. Stat. § 268.035, subd. 4(a). Mortenson is a base-

period employer because it employed Browne within that period, and DEED was required

to notify Mortenson that Browne established a benefits account.

      We conclude that the ULJ did not err by considering Mortenson’s responses. DEED

was required to notify Mortenson that Browne established an unemployment-benefits

account, and even if DEED did not notify Mortenson, Mortenson’s responses were within

24 months of the establishment of Browne’s benefits account.

                                            II.

      Browne contends that the ULJ erred because the determination that he took a

voluntary leave of absence from Mortenson is not supported by substantial evidence in the

record. The ULJ found that Browne “asked to be relieved of his duties” and that he took a

voluntary leave of absence because he “could return [to work] when his family

responsibilities stabilized.” We may affirm the ULJ’s decision, remand the case for further

proceedings, or reverse or modify it if the applicant’s substantial rights “may have been

prejudiced because the findings, inferences, conclusion, or decision are: . . .

(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) (2016); see also Bangtson

v. Allina Med. Grp., 766 N.W.2d 328, 331-32 (Minn. App. 2009).


                                            8
       Whether an employee took a voluntary leave of absence is a question of fact. See

Goodwin v. BPS Guard Servs., Inc., 524 N.W.2d 28, 29 (Minn. App. 1994) (concluding,

similarly, that a ULJ’s finding that an employee quit or was discharged are also findings

of fact). We review “findings of fact in the light most favorable to the ULJ’s decision and

will rely on findings that are substantially supported by the record.” Fay v. Minn. Dep’t of

Emp’t & Econ. Dev., 860 N.W.2d 385, 387 (Minn. App. 2015). “Substantial evidence is

(1) such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion; (2) more than a scintilla of evidence; (3) more than some evidence; (4) more

than any evidence; or (5) the evidence considered in its entirety.” Dourney v. CMAK Corp.,

796 N.W.2d 537, 539 (Minn. App. 2011) (quotation omitted).

       “Leave of absence” is not defined by statute, but it is defined in the dictionary as a

“worker’s temporary absence from employment or duty with the intention to return.”

Black’s Law Dictionary 1028 (10th ed. 2014). A leave of absence is voluntary “when work

that the applicant can then perform is available with the applicant’s employer but the

applicant chooses not to work.” Scheeler v. Sartell Water Controls, Inc., 730 N.W.2d 285,

288 (Minn. App. 2007) (citing Minn. Stat. § 268.085, subd. 13a(a) (2004)).

       Here, Mortenson does not claim that Browne took a voluntary leave of absence, nor

did DEED initially assert ineligibility based on a leave of absence. DEED’s initial

determination of ineligibility stated that Browne is ineligible to receive unemployment

benefits because he voluntarily quit. Mortenson stated that Browne voluntarily quit

without notice in its responses to DEED’s request for information. Mortenson’s first

human-resources form stated that Browne was involuntarily separated due to a workforce


                                             9
reduction. Another human-resources form dated the following day stated that Browne

voluntarily resigned because he “[q]uit went back up north.” Neither form stated that he

took a voluntary leave of absence—another option on the form. In its response to DEED’s

request for information, Mortenson’s documents stated that Browne voluntarily quit.

      Browne asserts that he did not take a voluntary leave of absence. He testified that

he asked his supervisor when he would be laid off and told his supervisor that he could no

longer work because he needed to take care of his children on December 8. His supervisor

originally told him that he would be separated on December 12, but when Browne told his

supervisor that his mother had been hospitalized on December 11, he was separated

immediately. Browne testified that his supervisor told him that he could have a “gap of

time to be able to sort out [his] wife’s schedule and child-care” and the employment

relationship “was left open-ended where either one of [them] were able to call each other

and reassess.” Browne also testified that he “had every intention of returning to work.”

But he did not specify with which employer, and he ultimately accepted employment with

Rainbow in February 2015. The ULJ found that Mortenson “anticipated that Browne might

return to work at a later time.” (Emphasis added.)

      DEED now argues that Browne’s testimony and prior statements demonstrate that

he took a voluntary leave of absence. But DEED originally determined that Browne is

ineligible because he voluntarily quit. Browne specifically testified that he did not view

his separation as voluntary. It was necessitated by the fact that he had to care for his

children while his mother was in the hospital. Moreover, his employer did not characterize

his separation as a leave of absence on its human-resources forms or its documentation to


                                           10
DEED. Because Mortenson’s inconsistent human-resource forms stated that Browne

either quit or was discharged and Browne testified that his leave of absence was not

voluntary, we conclude that the substantial evidence as a whole does not support the ULJ’s

finding that Browne took a voluntary leave of absence.

      In order to reverse and remand this case, we must also conclude that Browne’s

substantial rights were prejudiced as a result of this error. Minn. Stat. § 268.105, subd.

7(d). Browne argues that he is eligible for unemployment benefits regardless of whether

Mortenson discharged him or he voluntarily quit because, even if he quit, it was for a

qualifying reason. “Whether an employee had good cause to quit is a question of law,

which we review de novo.” Rowan v. Dream It, Inc., 812 N.W.2d 879, 883 (Minn. App.

2012) (quotation omitted). And ULJs “have a duty to reasonably assist pro se parties with

the presentation of the evidence and the proper development of the record.” White v. Univ.

of Minn. Physicians Corp., 875 N.W.2d 351, 355-56 (Minn. App. 2016).

      “An applicant who quit employment is ineligible for all unemployment benefits”

unless an exception applies. Minn. Stat. § 268.095, subd. 1 (2016). Because the ULJ did

not make a finding that Browne quit, the ULJ did not address whether he quit for a

nondisqualifying reason. See Minn. Stat. § 268.085, subd. 13a(c) (2016) (“A voluntary

leave of absence is not considered a quit . . . .”). Instead, the ULJ held that Browne is

ineligible for unemployment benefits regardless of whether he quit or took a leave of

absence.

      Browne asserts that the ULJ’s conclusion that his eligibility status would not change

regardless of whether he quit or took a leave of absence is legally incorrect. We agree. An


                                            11
applicant who voluntarily quits is ineligible to receive unemployment benefits unless “the

applicant’s loss of child care for the applicant’s minor child caused the applicant to quit

the employment, provided the applicant made reasonable effort to obtain other child care

and requested time off or other accommodation from the employer and no reasonable

accommodation is available.” Minn. Stat. § 268.095, subd. 1(8). An applicant must still

be available for suitable employment at the time he seeks to collect benefits. Id. An

applicant is available for suitable employment if the applicant “is ready, willing, and able

to accept suitable employment.” Minn. Stat. § 268.085, subd. 15(a) (2016).

       Here, the ULJ noted that Browne’s availability to perform suitable employment was

“real questionable” but it did not determine whether he was available for suitable

employment. Similarly, the ULJ did not make any finding addressing Browne’s request

for reasonable accommodation or whether he made reasonable efforts to obtain other

childcare.

       At the evidentiary hearing, Browne testified that his supervisor told him that

Mortenson could not make any accommodations. He also testified that, except during his

mother’s three-day hospitalization, he made himself available for work through his local

union and sought other work. But he told his supervisor at Mortenson that he could not

work “based off of [his] schedule and child-care [needs].” And the record is silent with

respect to Browne’s efforts to obtain other childcare.

       We conclude that the substantial evidence in the record does not support the ULJ’s

finding that Browne took a voluntary leave of absence because DEED’s initial

determination of ineligibility and Mortenson’s documentation, including its human-


                                            12
resources forms, state that Browne voluntarily quit or was discharged. Because substantial

evidence in the record as a whole does not support the ULJ’s finding that Browne took a

voluntary leave of absence, we reverse and remand for additional findings. If the ULJ

concludes that Browne voluntarily quit, the ULJ has a duty to fully develop the record to

determine whether Browne may be eligible for benefits under the childcare exception. See

White, 875 N.W.2d at 355-56.

      Reversed and remanded.




                                           13
