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Advisor, students learn costly lesson

By

As teachers, students and other personnel return to schools after the end-of-year Holidays, they are reeling from a trio of setbacks for unemployment compensation claimants.

An educator and a pair of students in Minnesota lost their bids for unemployment compensation benefits after losing their jobs shortly before the holiday season. The outcomes in those three proceedings left them far from happy as 2013 drew to a close.

Review of the cases shows the difficulties that unemployment compensation claimants face when, like the educator, they quit their jobs and seek benefits or, in the case of the two students, they are attending classes that limit their availability for gainful employment.

Academic appeal

An academic advisor at Augsburg College in Minneapolis was denied unemployment compensation benefits after she quit her job because she claimed that she was treated unfairly, harassed, and subjected to a hostile work environment in Reese v. Augsburg College, 2013 WL 4779040 (Minn. App. Sept. 9, 2013)(unpublished).

The educator claimed that she was being harassed and unfairly treated by her supervisor and was subject to a hostile environment, highlighted by a requirement that she complete her training plan program, which she claimed was unfair because others did not have to do so.

She was declared ineligible for benefits by an Unemployment Law Judge with the Department of Employment and Economic Development, the agency that oversees unemployment compensation of Minnesota. Under Minn. Stat. sec. 268.095, subd. 1(1), which precludes benefits for an employee who quits, unless there is “good reason caused by the employer.”

The ULJ reasoned that the employee did not have a valid reason to quit, and the Court of Appeals affirmed that determination because the employee’s feeling that she was unfairly required to complete a training plan, which precipitated her resignation, did not rise to the level of harassment that would “compel an average, reasonable worker to quit.” Personnel who testified for the college were more credible than the claimant in denying harassment allegations or that they create a hostile work environment for the claimant.

The claimant’s contention that the ULJ should have recused herself because she was an alumna of Augsburg also was rejected. The claimant cited Minn. Rule 3310.2915, an administrative law provision that calls for recusal of the judge’s participation “would create the appearance of impropriety.” But there is no case law on the “particular issue whether a judge … should recuse himself if the judge’s alma mater is a party to the case before the judge.” However, courts in other jurisdictions have uniformly held that a judge “need not recuse on the sole ground that his or her alma mater is a party to a case,” including two decisions of the 8th Circuit Court of Appeals, Lunde v. Helms, 29 F.3rd 367 (8th Cir. 1994) and Chalenor v. University of North Dakota, 291 F.3rd 1042 (8th Cir. 2002), as well as rulings to the same effect by Federal appellate courts in the 1st, 3rd, 5th, and 6th Circuits and state tribunals, as well.

But recusal is sometimes undertaken in these circumstances without compulsion. In Williams v. Smith, 820 N.W.2d 807 (Minn. 2012), four judges of the Minnesota Supreme Court, after granting a petition to review on appellate counterclaims, reversed themselves on grounds of their affiliation with the University of Minnesota alumni or employees, they would not adjudicate the lawsuit brought against the Gopher men’s basketball coach, Tubby Smith, by an erstwhile assistant who was offered a position which was then withdrawn. The Supreme Court, with the quartet of recused replaced by two other jurists, reversed the appellate court decision that affirmed a $1 million verdict for the claimant by a Hennepin County District Court jury. 2011 WL 4905629 (Minn. App. 2011)(unpublished).

Pair prongs

A pair of related prongs of the unemployment compensation laws doomed two students who sought unemployment compensation benefits after their jobs ended and they were enrolled in class in schools.

One of them, Minn. Stat. sec. 268.085, subd. 15(a), requires an unemployment claimant be “available for suitable employment,” defining suitability as lack of any restrictions “either self-imposed or created by circumstances … that prevent suitable employment.” The other, Minn. Stat. sec. 268.085, subd. 16(a), requires that an applicant be “actively seeking suitable employment,” which means making “reasonable, diligent effort” to find a job.

Those two clauses intersected to bar unemployment benefits for a pair of students in the Twin Cities area. In Dungan v. DEED, 2013 WL 5676912 (Minn. App. Oct. 21, 2013)(unpublished), a woman enrolled as a student in a Twin Cities surgical technology program after she lost her job as a medical records clerk and receptionist at a suburban medical clinic during the time she was attending the academic program. Her claim for unemployment benefits was denied by a ULJ, and the appellate court affirmed because the student failed to satisfy either of the statutory prongs.

She attended classes until 3 p.m. daily and was unwilling to leave school, rearrange her class schedule, or make other arrangements to allow her to be available for work during the bulk of the work day. Because she was unable to “work the listed hours for the majority of the positions” to which she was applying, she was ineligible for benefits under the two statutes.

In a more convoluted case, a woman who attended school on a part-time basis during the summer and then went into a full time program in the fall, lost her bid for benefits in Swanson v. DEED, 2013 WL 6223559 (Minn. App. Dec. 2, 2013)(unpublished). The summer school classes she took, after she lost her job as an office specialist due to a reduction-in-force, only consisted of a two hour course two days a week and one online course.

During this period, she was deemed eligible for unemployment benefits. However, when she signed up for five classes in the fall semester, she indicated on her unemployment compensation form that she was unwilling “to quit, rearrange, or get excused from classes” in order to accept a suitable job. As a result, the ULJ denied her request for benefits for the summer and the appellate court affirmed.

The ULJ’s decision noted that the applicant testified differently on the ineligibility in which she stated on the form, indicating that she would be willing to “rearrange” her schedule, or would “drop” out of school, and that her negative answer was due to a mistake, which the ULJ found “not persuasive” and denied her claim.

The appellate court affirmed, deferring to the ULJ’s decision for “discrediting [the applicant’s] testimony.” The ULJ properly determined that the applicant’s answers on the written form were not due to mistake. Because of her unwillingness to curb her class work, she was “ineligible” to receive unemployment benefits during the period she was attending school during the fall semester. However, she was eligible for benefits for the summer school period since that determination had already been made in her favor by DEED and had not been the subject of timely appeal by a former employer contesting her eligibility for benefits.

These cases are among a genre of “availability — suitability” cases that generally result in unfavorable outcomes for employees. Many of them involve students who, like these two claimants, are deemed ineligible for unemployment benefits while attending school.

Originally published by Minnesota Lawyer on 1/2/14.