Shari Flanagan, Relator,

This opinion will be unpublished and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
A16-1400

Shari Flanagan,
Relator,

vs.

Department of Employment and Economic Development,
Respondent.

Filed March 6, 2017
Affirmed
Cleary, Chief Judge

Department of Employment and Economic Development
File No. 34694899-3

Shari Flanagan, Lino Lakes, Minnesota (pro se relator)

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

Considered and decided by Halbrooks, Presiding Judge; Cleary, Chief Judge; and
Jesson, Judge.
U N P U B L I S H E D O P I N I O N
CLEARY, Chief Judge
In this certiorari appeal, relator Shari Flanagan challenges the decision of an
unemployment-law judge (ULJ) affirming his earlier determination that Flanagan was
ineligible for unemployment benefits. Because the ULJ’s determination that Flanagan was
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not available for, or actively seeking, suita ble employment is supported by substantial
evidence in the record, and because Flanagan received proper notice of the subject matter
of the hearing, we affirm.
FACTS
Flanagan worked full time at Buys Chiropractic fo r about 14 years. On May 2,
2016, her employment temporarily ceased because her employer, a chiropractor, was
injured and unable to work. Flanagan expected to return to work at Buys Chiropractic
when her employer was able to return to work.
Flanagan established an unemployment- benefits account with the Minnesota
Department of Employment and Economic Development (DEED) effective April 24, 2016.
DEED scheduled a reemployment-assistance se ssion for Flanagan in May, 2016, at its
workforce center, but she missed the appoint ment. In a phone co nversation on May 23,
2016, Flanagan told a DEED employee that she missed the reemployment-assistance
session because she was at a hospital. Flanag an was not at a hospital on the date of her
session, but she visited a hospital emergency r oom on May 22 after having back spasms.
Flanagan later explained at a hearing befo re a ULJ that she mi ssed the reemployment-
assistance session because she forgot about the appointment.
Flanagan released her medical records to DEED regarding her May 22 emergency-
room visit. On June 1, 2016, Flanagan a ttended her reemployment-assistance session at
DEED’s workforce center. Flan agan’s healthcare provider stated that Flanagan had a
lumbar strain and that her “ability to retu rn to work duties are best evaluated after
rest . . . typically in 7-10 days after ED visit.” In response, on June 13, 2016, DEED sent
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Flanagan a determination-of-ineligibility letter stating that, because her ability to work was
in question, she was not e ligible for unemployment bene fits beginning May 15 until she
was able to work “and is ready and willing to seek and accept a job. ” DEED determined
that it overpaid Flanagan $1,074 in unemployment benefits.
Flanagan appealed the determination of ineligibility, stating in her reason for appeal
that she was able to work. A second medical provider stated that Flanagan had been able
to work without restrictions since May 15. DEED sent Flanagan notice of a hearing before
a ULJ to determine whether Flanagan had be en available to accept suitable employment
and whether she was actively seeking suitable employment.
At the June 28, 2016 hearing, Flanagan acknowledged that she made a false
statement to DEED when she stated she missed her May reemployment-assistance session
for a medical reason. Flanagan stated that she was not looking for work during the work
weeks beginning April 24 and May 1. Flanagan testified that, during the week of May 8,
she searched for work for about two hours in a newspaper and online. From May 15 until
the June 28 hearing, Flanagan spent about two hours and fifteen minutes per week looking
for work online and in newspapers. Flanagan testified th at she spent the weekends up at
her cabin, which is located an hour and ten minutes from her home, and that she was at her
cabin from May 19 until May 22. Flanagan did not create a resume until on or shortly
before May 30. At the time of the hearing, other than asking the clinic that took her
employer’s patients if they needed help, she had not yet applied for a single job. She
testified that, had she permanently lost he r employment at the chiropractic center, she
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would have been more willing to take a position at lower pa y and outside a five- to ten-
minute commute time.
On June 29, 2016, the ULJ ruled that Fl anagan was not eligible for unemployment
benefits between April 24 and June 28, 2016, because she was not “available for suitable
employment or actively seeking suitable employment.” The ULJ determined that Flanagan
was overpaid $1,790 in benefits. That day, Flanagan filed a request for reconsideration
arguing that she did what a DEED employee told her to do: put her resume on DEED’s
workforce website by June 20 and “say I just got a job if called and to check the [DEED’s]
web site [sic] to look for jobs and to call my boss everyday whic h is actively seeking
employment every day.” After considering the request, the ULJ affirmed his June 29
decision.
Flanagan now appeals.
D E C I S I O N
This court may reverse or modify a ULJ’s decision if the substantial rights of the
petitioner may have been prejudiced because the ULJ’s findings, inferences, conclusion,
or decision are, among other things, “in violation of constitutional provisions,” “made upon
unlawful procedure,” or “unsupported by substantial evidence in view of the entire record
as submitted.” Minn. Stat. § 268.105, subd. 7(d) (2016). “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 ev idence; (3) more th an 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). This court reviews de novo a
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ULJ’s legal determination that an applicant is ineligible for unemployment benefits. Fay
v. Dep’t of Emp’t & Econ. Dev. , 860 N.W.2d 385, 387 (Minn. App. 2015). We review a
ULJ’s factual findings “in the light most favor able to the decision” and will not disturb
findings that are substantially supported by the record. Skarhus v. Davanni’s Inc. , 721
N.W.2d 340, 344 (Minn. App. 2006).
I. Available for and Actively Seeking Suitable Employment
Flanagan first claims that the ULJ’s decision that she was not available for and not
actively seeking suitable employment to be eligible for unemplo yment benefits was
unsupported by the substantial evidence because she (1) had a doctor’s note saying she was
able to work and (2) relied on inaccurate advice from a DEED employee.
Flanagan may be eligible for unemployment benefits for any week where she was
(1) “available for suitable employment” and (2 ) “actively seeking suitable employment.”
Minn. Stat. § 268.085, subd. 1(4)-(5) (2016). “‘Available for suitable employment’ means
an applicant is ready, willing, and able to accept suitable employment,” and “[t]he
attachment to the work force must be genuine.” Id. at subd. 15(a) (2016). “An applicant
may restrict availability to su itable employment, but there mu st be no other restrictions,
either self-imposed or create d by circumstances, temporary or permanent, that prevent
accepting suitable employment.” Id.
‘Actively seeking suitable employment’ means 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. Limiting the search to positions that are not
available or are above the applicant’s training, experience, and
qualifications is not ‘actively seeking suitable employment.’
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Id. at subd. 16(a) (2016). Whether an app licant is available for and actively seeking
suitable employment, and whether the applicant’s attachment to the workforce is genuine,
are factual determinations. Goodman v. Minnesota Dep’t of Emp’t Servs., 312 Minn. 551,
553, 255 N.W.2d 222, 223 (1977).
The ULJ determined that Flanagan was not availabl e for suitable employment
throughout the period that she was paid unemployment benefits because she was not
willing to work at a job other than at Buys Chiropractic, and was “only willing to work at
jobs within a ten mile radius of her home in Lino Lakes.” Flanagan asserts that she was
available for suitable employment because she had a doctor’s note stating she was able to
work effective May 15. Because the ULJ never determined Flanagan was unavailable for
suitable employment because of a medical condition, Flanagan’s medical note stating she
was able to work is not material.
The ULJ also determined that Flanagan was out of her labor market when she was
at her cabin. Flanagan argues that the ULJ unfairly used the fact that she visited her cabin
on the weekends against her because (1) her cabin is only one hour and ten minutes from
her home, (2) she only goes up to her cabin on the weekends, and (3) other people commute
much longer than one hour and ten minutes to work.
The ULJ’s finding that Flan agan was not available for suitable employment was
supported by substantial evidence. Regarding her weekend cabin trips, Flanagan testified
that she would accept employment only five to ten miles from her home in Lino Lakes, but
Flanagan was willing to drive to her cabin one hour and ten minutes from her home every
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weekend. Substantial evidence also supports the ULJ’s finding that Flanagan was waiting
for her job at Buys Chiropractic to restart a nd was not interested in finding other suitable
employment. In the context of explaining her frustrations about the requirements to receive
unemployment benefits, Flanagan testified “but I have a job,” and she stated that she
expected to return to her job when her employer became well. Flanagan testified that she
would take a position that was higher paying. But the ULJ determined that this statement
was not credible because the record as a whole showed “Flanagan is clearly waiting to
return to Buys Chiropractic a nd is not willing to work at a nother job.” Th is court gives
deference to the credibility determinations made by a ULJ. Skarhus, 721 N.W.2d at 344.
Further, Flanagan admitted that, if she did not have a job to return to, she would have been
more willing to accept a job under her pay scal e or ability. This sh ows Flanagan placed
self-imposed restrictions on her job sear ch that prevented her from accepting suitable
employment, and as a result, under Minn. Stat. § 268.085, subd. 15(a), Flanagan cannot be
deemed “available for suitable employment.”
Substantial evidence also supports the UL J’s determination that Flanagan was not
actively seeking suitable employment. The ULJ determined that had Flanagan been
interested in new employment, she would ha ve been spending s ubstantially more time
searching for work, and she would have expanded her job search. The record supports this
finding: Flanagan only spent about two hours and fifteen minutes per week looking for
work online and in newspapers.
Flanagan also argues that she is being punished for relying on inaccurate advice
from a DEED employee. Flanagan asserts that the DEED employee told her that she “did
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not have to look for jobs.” Flanagan also claims that the DEED employee told her that she
only needed to post a resume on DEED’s wo rkforce-center website by late June 2016,
attend a reemployment-assistance session, log on to the workforce-center website, and call
her employer daily, and then she could check the box that states she is seeking employment.
Flanagan claims that the DEED employee told her at a mee ting that if she got a call for a
job, “just say I got a job.”
While Flanagan first raised this argumen t after her hearing in her request to
reconsider and in a communicati on to the ULJ, this court may consider an issue that was
only first considered by the ULJ after a request for reconsideration. Work Connection, Inc.
v. Bui, 749 N.W.2d 63, 66 (Minn. App. 2008), review granted (June 18, 2008) and order
granting review vacated (Minn. July 6, 2009).
The ULJ found in an order affirming his decision that Flanagan did not “show that
the evidence submitted at the hearing was likel y false” and that th e likely false evidence
would affect the outcome of the decision. The ULJ did not err because even if Flanagan’s
assertions regarding the inaccurate advice ar e true, they would no t make the evidence
submitted at the hearing showing Flanagan was not available for or actively seeking
suitable employment “likely false,” as requi red by Minn. Stat. 26 8.105, subd. 2(c)(2)
(2016). The ULJ also found that Flanagan did not have good cause for failing to provide
the information during the hearing. The ULJ did not err because, again, even if Flanagan’s
assertions regarding the inaccurate advice ar e true, the law requires in a request for
reconsideration that “there was good caus e for not having previously submitted that
evidence.” Id., subd. 2(c)(1) (2016). Flanagan ca nnot show good cause for failing to
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present this evidence at her hearing because the ULJ explained to Flanagan at that hearing
that she could have reschedul ed the hearing to subpoena w itnesses, such as the DEED
employee. See Minn. R. 3310.2914 (2015) (allowing for the request of a subpoena to
compel attendance of witnesses at an administrative hearing). Flanagan did not explain in
her request for reconsideration why she di d not ask the ULJ to subpoena the DEED
employee who allegedly gave her erroneous advice.
Flanagan also argues that, because she wa s eventually told by DEED that she was
required to actually seek out work, she shoul d not have to pay back the benefits she
received while following DEED’s alleged inac curate advice. However, Flanagan missed
her initial reemployment-assistance session where she could have clarified what was
required to obtain unemployment benefits. Further, assuming that Flanagan did receive
inaccurate advice, Flanagan’s argument is essentially an argument of equitable estoppel—
“[a] defensive doctrine preventing one party from taking unfair advantage of another when,
through false language or conduct, the person to be estopped has induced another person
to act in a certain way.” Black’s Law Dictionary 630 (9th ed. 2009). Equitable estoppel is
an equitable doctrine, Olson v. Synergistic Techs. Bus. Sys., Inc. , 628 N.W.2d 142, 155
(Minn. 2001), and a person is not entitled to unemployment benefits on an equitable or
common law basis. Minn. Stat. § 268.069, subd. 3 (2016). Finally, in her unemployment-
application materials, Flanagan answered “Yes” to the question “Did you look for work?”
during the work weeks beginning on May 15, Ma y 22, and May 29. Th is gave Flanagan
notice that she was required to actively look for work.
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Because substantial evidence supports th e ULJ’s finding that Flanagan was not
available for and not activel y seeking suitable employme nt, the ULJ did not err in
concluding that Flanagan was ineligible for unemployment benefits.
II. Proper Notice of Issues at Hearing
Flanagan next claims that she did not ha ve proper notice of the issues to be
addressed at her unemployment-benefits hearing, and that as a result she did not have a fair
opportunity to be prepared and heard. In effect, Flanagan is claiming the ULJ’s decision
was made in violation of co nstitutional due-process provisi ons and made upon unlawful
procedure requiring reversal under Minn. Stat. § 268.105, subd. 7(d).
The Minnesota Rules “establish pro cedures for hearings conducted by
unemployment law judges.” Minn. R. 3310. 2901 (2015). The rules provide that a ULJ
must send notice of a hearing to each party at least ten cale ndar days before the hearing
date, and the notice must state the issues to be considered at the hearing. Minn. R.
3310.2905, subp. 2 (2015). The ULJ followe d this notice requirement. A notice dated
June 14, 2016, was sent to Flanagan by mail, more than ten days before the June 28 hearing.
Further, in bold lettering th e notice stated that the issues to be considered at the hearing
were: “Whether . . . Flanagan has been available to accept suitable employment and
actively seeking suitable employment.” The ULJ’s decision was not made upon unlawful
procedure for failing to grant notice.
The ULJ’s decision also comports with constitutional due-process requirements of
proper notice. The United States and Minnesota Constitutions provide that no person shall
be deprived of life, liberty, or property without due process of law. U.S. Const. amends.
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V, XIV; Minn. Const. art. I, § 7. “Unemployment benefits are an entitlement protected by
the constitutional right to procedural due process.” Godbout v. Dep’t of Emp & Econ. Dev.,
827 N.W.2d 799, 802 (Minn. App. 2013). When a due-process challenge revolves around
the adequacy of notice, this court dete rmines whether the no tice was “reasonably
calculated, under all the circumstances, to apprise interested parties of the pendency of the
action and afford them an opportunity to present their objections.” Id. (quotation omitted).
Here, the notice comported w ith constitutional due-process requirements because it
informed Flanagan in writing more than ten days before the hearing of the issues that
Flanagan would be expected to address.
The ULJ’s decision was not made in viola tion of constitutional provisions or upon
unlawful procedure.
Affirmed.