                         This opinion will be unpublished and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
                                     A14-1594

                                     Samuel I. Ricci,
                                        Relator,

                                            vs.

                          Schmitty & Sons School Buses, Inc.,
                                     Respondent,

                Department of Employment and Economic Development,
                                    Respondent.

                                Filed February 17, 2015
                                       Reversed
                                    Chutich, Judge

                Department of Employment and Economic Development
                                File No. 32598751-4

Samuel I. Ricci, Burnsville, Minnesota (pro se relator)

Bradley J. Lindeman, Meagher & Geer, P.L.L.P., Minneapolis, Minnesota (for
respondent Schmitty & Sons School Buses, Inc.)

Lee B. Nelson, St. Paul, Minnesota (for respondent department)


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

Smith, Judge.
                         UNPUBLISHED OPINION

CHUTICH, Judge

       Relator Samuel Ricci challenges the unemployment-law judge’s decision that he

was ineligible for unemployment benefits because he was not available for or actively

seeking suitable employment from May 11, 2014 through June 30, 2014. The Minnesota

Department of Employment and Economic Development (the department) contends that

the unemployment-law judge’s ineligibility determination should be affirmed as to the

week beginning May 11, 2014, but concedes that the judge should be reversed as to the

period from May 18, 2014 through June 30, 2014. Respondent Schmitty & Sons School

Buses, Inc. advised this court that it would not be filing a brief, although it believes that

the judge’s decision should be affirmed. Because Ricci was available for and actively

seeking suitable employment from May 11, 2014 through June 30, 2014, we reverse the

denial of benefits.

                                          FACTS

       Ricci, a bus driver who had worked for Schmitty & Sons for almost ten years, was

discharged from employment after he was unable to qualify for renewal of his medical

certificate, which is required of commercial drivers.

       Ricci applied for unemployment benefits and established a benefit account

effective May 11, 2014.       On June 11, 2014, the department issued an amended

determination of ineligibility. Ricci appealed, and on June 30, 2014, an unemployment-

law judge held a hearing addressing whether he was available for and actively seeking

suitable employment, among other things.


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       At the hearing, Ricci testified that he had some physical limitations, but also

described employment other than driving that he was qualified for and physically able to

perform. He also testified that during his first week of unemployment, he focused on

consulting medical personnel in an attempt to become recertified to drive a commercial

vehicle. Thereafter, he networked with people he knew, checked classified ads in the

newspaper, looked at job postings on websites, and called some companies for work, but

found no available positions. At a workforce center, Ricci obtained a reemployment

assessment, attended a class and, at the center’s suggestion, posted his resume on the

Internet. On June 27, 2014, Schmitty & Sons offered Ricci a non-driving position within

his medical limitations for at least 30 hours per week, without requiring him to submit a

medical statement, and Ricci accepted the offer on the same day.

       The unemployment-law judge found that Ricci was not physically able to perform

suitable employment, describing his testimony to the contrary as “not plausible,” despite

her finding that Ricci later returned to a light-duty job with his former employer. The

judge cited the lack of a report from his treating physician stating that he is physically

able to work and listing his physical limitations, and the judge required that such a report

be submitted before he could be deemed available for suitable employment.

       The unemployment-law judge further determined, for a variety of reasons, that

Ricci was not actively seeking suitable employment. The unemployment-law judge ruled

that the evidence failed to show that Ricci was available for or actively seeking suitable

employment from May 11, 2014 through June 30, 2014.              After Ricci’s request for

reconsideration was denied, this appeal by writ of certiorari followed.


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                                     DECISION

         We may affirm the unemployment-law judge’s decision or remand it for further

proceedings, or we may reverse or modify the decision if the substantial rights of the

relator have been prejudiced because the findings, inferences, conclusion, or decision are

affected by error of law or are unsupported by substantial evidence in the record. Minn.

Stat. § 268.105, subd. 7(d) (2014).      Whether an applicant is available for suitable

employment or actively seeking suitable employment is a question of fact. Goodman v.

Minn. Dep’t of Emp’t Servs., 312 Minn. 551, 553, 255 N.W.2d 222, 223 (1977). Whether

an applicant is eligible for unemployment benefits is a question of law. Skarhus v.

Davanni’s Inc., 721 N.W.2d 340, 344 (Minn. App. 2006).            “Questions of law are

reviewed de novo; findings of fact are upheld if they are supported by substantial

evidence.” Carlson v. Dep’t of Emp’t & Econ. Dev., 747 N.W.2d 367, 371 (Minn. App.

2008).

         The purpose of chapter 268 is to assist those who are unemployed through no fault

of their own. Minn. Stat. § 268.03, subd. 1 (2014). “This chapter is remedial in nature

and must be applied in favor of awarding unemployment benefits,” and any provision

precluding receipt of benefits must be narrowly construed. Minn. Stat. § 268.031, subd. 2

(2014).

         An applicant for unemployment benefits must meet “all of the ongoing eligibility

requirements under section 268.085.” Minn. Stat. § 268.069, subd. 1(3) (2014). These

requirements include that the applicant must be available for and actively seeking suitable

employment. Minn. Stat. § 268.085, subd. 1(4), (5) (2014). First, an applicant who is


                                             4
“ready, willing, and able to accept suitable employment” is considered available for

suitable employment.     Id., subd. 15(a) (2014) (emphasis added).       The department

concedes, and we agree, that the unemployment-law judge’s determination that Ricci was

not able to perform suitable employment is not supported by substantial evidence in the

record. To the contrary, substantial evidence in the record shows that Ricci was able to

perform and was available for suitable employment.

      Next, to be eligible for unemployment benefits, an applicant must also be actively

seeking suitable employment.      Id., subd. 1(5).    Such an applicant makes “those

reasonable, diligent efforts an individual in similar circumstances would make if

genuinely interested in obtaining suitable employment under the existing conditions in

the labor market area.”      Id., subd. 16(a) (2014).      Stating several reasons, the

unemployment-law judge found that Ricci was not actively seeking suitable employment.

      Ricci argues that he followed the department’s guidelines for seeking work and

that he should be eligible for benefits for the entire period of his unemployment. The

department contends that the unemployment-law judge should be affirmed as to the week

beginning May 11, 2014, but concedes that the judge should be reversed as to the period

from May 18, 2014 through June 30, 2014.

      As to the week beginning May 11, 2014, the department argues that Ricci is

ineligible because he did not do anything that week to try to find work. We must

disagree.   The record shows that Ricci spent his time that week consulting with

physicians in an effort to resolve his medical problems so that he could renew his medical

certificate and resume his job driving a bus. We hold that he is eligible for this week


                                            5
because he made those reasonable, diligent efforts someone in similar circumstances

would make when genuinely trying to find suitable work under the existing conditions in

the labor market.

       As to the period from May 18, 2014 through June 30, 2014, the department

concedes that the unemployment-law judge erred by failing to consider the existing

conditions in Ricci’s labor market area. See Minn. Stat. § 268.085, subd. 16(a); Neumann

v. Dep’t of Emp’t & Econ. Dev., 844 N.W.2d 736, 739 (Minn. App. 2014) (holding that

unemployment-law judge’s failure to identify applicant’s labor-market area and to

consider existing labor-market conditions were errors of law requiring reversal). Further,

the department concedes, and we agree, that Ricci made those reasonable, diligent efforts

someone in similar circumstances would make when genuinely trying to find suitable

work under the existing conditions in the labor market, and that he actively sought

suitable employment from May 18, 2014 through June 30, 2014. Accordingly, Ricci is

eligible for benefits for this period of time as well.

       The decision of the unemployment-law judge on reconsideration that Ricci is

ineligible for unemployment benefits is reversed.

       Reversed.




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