                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2012).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-0049


                                     Ja'Na Dickens,
                                         Relator,

                                           vs.

                                  Metropolitan Council,
                                      Respondent,

                 Department of Employment and Economic Development,
                                     Respondent.


                                Filed September 15, 2014
                                        Affirmed
                                    Bjorkman, Judge


                 Department of Employment and Economic Development
                                 File No. 31608893-3

Laura Melnick, Meghan R. Scully, Law Offices of Southern Minnesota Regional Legal
Services, Inc., St. Paul, Minnesota (for relator)

Metropolitan Council, St. Paul, Minnesota (respondent)

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

         Considered and decided by Larkin, Presiding Judge; Bjorkman, Judge; and Smith,

Judge.
                         UNPUBLISHED OPINION

BJORKMAN, Judge

       Relator challenges the decision of the unemployment-law judge (ULJ) that she is

ineligible during the period for which she sought benefits because she was not available

for or actively seeking suitable employment. We affirm.

                                          FACTS

       On September 3, 2013, relator Ja’Na Dickens quit her employment as a bus

operator for the Metropolitan Council because the position, which required frequent

nighttime and weekend shifts, interfered with her ability to care for her terminally ill son.

Dickens returned to her former position as a school bus operator, working part-time from

2:00 p.m. to 6:00 p.m. Monday through Friday, but continued looking for an additional

part-time or a full-time transportation position. Dickens limited her search to positions

with daytime hours and limited weekend work so she could care for her son.

       Dickens applied for unemployment benefits. Respondent Minnesota Department

of Employment and Economic Development (DEED) determined that Dickens is not

subject to the general rule that one who quits employment is ineligible for all

unemployment benefits because Dickens quit in order to provide necessary medical care

for her son. But DEED determined that Dickens is nonetheless ineligible for benefits

because she was not available for suitable employment.

       Dickens appealed. While the appeal was pending, Dickens accepted a second

part-time position as a courier, and stopped searching for work. Accordingly, the ULJ

only considered Dickens’s eligibility for benefits between September 8 and October 22,


                                             2
2013. After an evidentiary hearing, the ULJ found that Dickens was not available for or

actively seeking “suitable employment” during this period because she “placed limits on

her availability that are not usual for her occupation.” The ULJ concluded that Dickens is

ineligible for benefits. Dickens sought reconsideration, and the ULJ affirmed. This

certiorari appeal follows.

                                     DECISION

       We review a ULJ’s decision to determine whether it is “(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) (2012). We review factual

findings in the light most favorable to the ULJ’s decision and will not disturb them if they

are substantially supported by the evidence. Skarhus v. Davanni’s Inc., 721 N.W.2d 340,

344 (Minn. App. 2006).       But we review issues of statutory interpretation de novo.

Halvorson v. Cnty. of Anoka, 780 N.W.2d 385, 389 (Minn. App. 2010).

       To receive unemployment benefits for a particular week, an applicant must be

“available for suitable employment.” Minn. Stat. § 268.085, subd. 1(4) (2012). Whether

an applicant is available for 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).

       The ULJ found that suitable employment for Dickens includes work as a city or

school bus operator, or other transportation work, and that Dickens was not available for




                                             3
such employment during the relevant period because she restricted the hours she was

willing to work. Dickens challenges both findings.

       Suitable employment

       “Suitable employment means employment in the applicant’s labor market area that

is reasonably related to the applicant’s qualifications.” Minn. Stat. § 268.035, subd.

23a(a) (2012). This includes employment on a second, third, rotating, or split shift if that

arrangement of hours is customary in the occupation in the labor market area. Id., subd.

23a(f) (2012).

       Dickens does not dispute that she is qualified for transportation work, particularly

work as a bus operator. But she contends that any position requiring her to work evening

or significant weekend hours is not “suitable employment” for her because she would

have “good cause” to refuse an offer of such a position under Minn. Stat. § 268.085,

subd. 13c(b) (2012), or be justified in quitting such a position under Minn. Stat.

§ 268.095, subd. 1 (2012). We address each argument in turn.

       Under Minn. Stat. § 268.085, subd. 13c, an applicant is ineligible for benefits for a

period of eight weeks if she knows of a particular “suitable” position and fails to apply

for it or is offered and refuses the position, unless she had “good cause” for doing so.

Minn. Stat. § 268.085, subd. 13c(a). “Good cause” is “a reason that would cause a

reasonable individual who wants suitable employment to fail to apply for, accept, or

avoid suitable employment.” Id., subd. 13c(b). Both the eight-week penalty and the

“good cause” exception presuppose that the position the applicant refused or failed to

apply for was “suitable employment.” Consequently, whether Dickens’s need to care for


                                             4
her son would qualify as “good cause” to decline a transportation position that required

evening or weekend hours has no bearing on the determination that such positions are

“suitable employment” for Dickens.

       We are similarly unpersuaded by Dickens’s alternative argument that any position

she would be justified in quitting because of her son’s need for medical care is not

suitable employment. An applicant who quits employment generally is “ineligible for all

unemployment benefits.” Minn. Stat. § 268.095, subd. 1 (emphasis added). There is an

exception to this rule for applicants like Dickens who quit because of a family member’s

medical necessity; such applicants are not categorically ineligible for unemployment

benefits even though the decision to end the employment was the applicant’s. See id.,

subd. 1(7).   But the exception does not eliminate the ongoing requirement that an

applicant be “available for suitable employment” for every week she seeks

unemployment benefits. See Minn. Stat. § 268.085, subd. 1(4).

       Dickens contends that it is absurd to construe the unemployment insurance law to

render one who is justified in quitting because of medical necessity nonetheless ineligible

for benefits because that necessity makes her unavailable for the work she is qualified to

perform. This argument is sympathetic but unavailing. The purpose of providing wage

replacement to one who is unemployed through no fault of her own is “to assist the

unemployed worker to become reemployed.” Minn. Stat. § 268.03, subd. 1 (2012). The

unemployment insurance law does not require an applicant to become reemployed by

accepting employment beyond her skills or physical abilities and recognizes that an

applicant’s own medical needs may not only require her to quit but also may limit the


                                            5
scope of employment that is suitable for her. See Minn. Stat. § 268.035, subd. 23a(a).

But the law does not permit an applicant to forego employment that she is capable of

undertaking to accommodate her family’s needs. See Minn. Stat. § 268.095, subd. 1(7),

(8) (stating that medical-necessity and loss-of-child-care exceptions “raise[] an issue of

the applicant’s being available for suitable employment under section 268.085,

subdivision 1”). Doing so may be the right personal choice in some cases, but it does not

change the nature of what employment is suitable for the applicant.

       Availability

       An applicant is available for suitable employment if she is “ready, willing, and

able to accept suitable employment” and does not impose any restrictions that prevent

him or her from accepting suitable employment. Minn. Stat. § 268.085, subd. 15(a)

(2012). She may not pick and choose the types of suitable employment for which she

will make herself available. See Preiss v. Comm’r of Econ. Sec., 347 N.W.2d 74, 77

(Minn. App. 1984) (determining that no good cause existed to reject suitable employment

when relator argued she refused job offer because she was waiting for a better

opportunity). And she may not unilaterally limit her hours. “An applicant who has

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.’” Minn. Stat. § 268.085, subd.

15(d). This means she must be available for “[e]mployment on a second, third, rotating,

or split shift . . . if [such a schedule] is customary in the occupation in the labor market

area.” See Minn. Stat. § 268.035, subd. 23a(f). In short, an applicant must be ready,


                                             6
willing, and able to accept any employment in the applicant’s labor market area that is

reasonably related to the applicant’s qualifications.

       The ULJ found that Dickens’s self-imposed hour restrictions are not normal for

her usual occupation as a bus operator or for other suitable transportation positions,

which “have shifts outside of normal business hours” and “weekend hours.” Dickens

argues this finding is clearly erroneous because “many jobs in the transportation field”

call for work “during daytime hours on weekdays.” We disagree. Dickens’s testimony

amply establishes that transportation work commonly requires split, nighttime, and

weekend shifts. Dickens made herself available for some transportation jobs but not

others. That is insufficient to establish availability for suitable employment under Minn.

Stat. § 268.085 (2012).

       While Dickens’s decision to prioritize being available to care for her son over

being available for work is understandable, it renders her ineligible for benefits. Cf.

Minn. Stat. § 268.069, subd. 3 (2012) (barring equitable allowance of benefits). We

conclude the ULJ did not err by determining that Dickens was not available for suitable

employment during her period of unemployment and therefore was ineligible to receive

unemployment benefits.1

       Affirmed.




1
  Dickens also challenges the ULJ’s determination that she was not actively seeking
suitable employment. Because the ULJ’s determination that Dickens was not available
for suitable employment independently supports the ineligibility determination, we
decline to address Dickens’s argument.

                                              7
