Charlotte Only, Relator,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1238

Charlotte Only,
Relator,

vs.

Regency Home Healthcare,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed June 3, 2019
Affirmed
Cochran, Judge

Department of Employment and Economic Development
File No. 36448825-2

Judah A. Druck, Michael L. Sheran, Maslon LLP, Minneapolis, Minnesota; and

Max Heerman, Medtronic, Inc., Washington, D.C. (for relator)

Regency Home Healthcare, Maple Grove, Minnesota (respondent employer)

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

Considered and decided by Cochr an, Presiding Judge; Hooten, Ju dge; and Reyes,
Judge.

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U N P U B L I S H E D O P I N I O N
COCHRAN, Judge
Relator Charlotte Only challenge s the decision of an unemployme n t l a w j u d g e
(ULJ) on reconsideration that relator was ineligible for unemployment benefits beginning
November 5, 2017, because she w as unavailable for, and avoided offers of, suitable
employment. Relator argues that the ULJ erred by (1) exceeding the noticed scope of the
hearing; (2) denying benefits starting November 5, 2017, when e vidence demonstrates
relator was enrolled in a disloca ted worker program; (3) denyin g benefits after
December 20, 2017, based on a flawed credibility determination; and (4) failing to develop
a complete evidentiary record. We affirm.
FACTS
Charlotte Only worked as a part -time personal-care attendant at Regency Home
Healthcare (Regency) beginning in May 2013. Regency would regu larly contact Only to
place her with a client, and Only worked in the client’s home. On October 20, 2017, Only
completed an assignment with Reg ency. While waiting for Regenc y to contact her for
further work, Only established an account for unemployment bene fits, effective on
October 22, 2017.
On November 2, Regency called Only to inquire about placing her with new clients.
Regency left a voicemail message for Only because she did not a nswer. Later that day,
Only called Regency and left a voicemail message explaining that she was going to be out
of town for the next month to care for her parents. She stated that she would be back by

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December and would “keep in touch .” But Only did not leave tow n and did not contact
Regency again in November or December.
On November 17, Only went to th e WorkForce Center where she ap plied to the
Dislocated Worker Program. Only wanted to receive training to become a certified nursing
assistant (CNA).
In December and January, Regency repeatedly attempted to place Only with clients.
Regency called Only on December 20, December 28, and January 9. Each time, Regency
left a voicemail message telling Only that Regency had hours an d clients available. On
January 12, Only called back and left a voicemail indicating th at she was enrolled in the
Dislocated Worker Program and had “to stay on [her] unemployment until [she] finish[ed]
[her] CNA classes.” As of March 6, 2018, the date of the heari ng, Only had not attended
any CNA trainings or classes.
On February 6, 2018, the Departm ent of Employment and Economic Development
(DEED) issued a determination of eligibility for unemployment b enefits for the period
beginning December 20, 2017. The determination stated that Only did not refuse or avoid
an offer of employment from Regency on December 20, December 28 , or January 9.
Regency appealed and an evidentiary hearing was conducted by a ULJ. Before the hearing,
DEED sent Only a notice of the hearing, which stated that the i ssue for the evidentiary
hearing was “whether [Only] is i neligible [for unemployment benefits] for eight calendar
weeks for failing to apply, refu sing, or avoiding an offer of s uitable employment without
good cause.”

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During the evidentiary hearing, the ULJ raised an additional i ssue—whether Only
was available and actively seeking suitable employment. The UL J raised the issue based
on information Only provided at the hearing. The ULJ told Only that “normally, we have
to give a ten-day notice to the parties to let them know that t here’s going to be an
[additional] issue discussed at a hearing. If you’re willing t o waive that notice . . . I can
address both the . . . refusal issue and your availability issue at this hearing.” Only stated
that she was “ready to discuss this,” and the ULJ expanded the scope of the hearing. Only
and Bridgeman, a representative of Regency, both testified. Br idgeman testified that she
attempted to contact Only multiple times and that Only was stil l considered an active
employee at Regency. Only maintained that she did not receive the December voicemails
and thus did not know about any offers of employment. She stated that her home number
“is just a fax number now” and that she “will get a message tho ugh, sometimes through
[her] fax machine.” Only provided various exhibits to the ULJ, such as a business card
and a job search webpage.
The ULJ issued a written decisi on which included findings on b oth issues of
ineligibility. On the issue of whether Only avoided an offer o f suitable employment
without good cause, the ULJ determined that Only avoided an offer of employment from
Regency on December 20, 2017 without good cause, and therefore she was not eligible for
unemployment benefits for eight calendar weeks on that basis. While Only testified that
she did not receive the message on December 20, the ULJ did not find her testimony
credible. On the issue of availability, the ULJ determined that Only was not available for
or actively seeking suitable employment from November 5, 2017 t o March 6, 2018, the

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date of the hearing. For that reason, the ULJ concluded that s he was not eligible for
unemployment benefits during th at time period or until her cond itions changed in that
regard. The ULJ did not consider the time period before Novemb e r 4 b e c a u s e O n l y ’ s
availability between October 22, when she applied for unemploym ent benefits, and
November 4 was the subject of a prior proceeding. Only request ed reconsideration, and
the ULJ affirmed his decision.
This appeal follows by writ of certiorari.
D E C I S I O N
Only contends that the ULJ erred by (1) exceeding the scope of the hearing,
(2) denying her unemployment benefits when evidence demonstrated that she was enrolled
i n t he Di s l oc a t e d W o r ke r Pr o gr a m , ( 3) de n yi n g he r u ne m pl o ym e nt benefits based on a
credibility determination regarding her testimony about the pre -December 20 period, and
(4) failing to develop an evidentiary record.
When reviewing the ULJ’s decision, this court may affirm, reman d for further
proceedings, or it may reverse or modify the decision “if the s ubstantial rights of the
petitioner may have been prejudiced.” Minn. Stat. § 268.105, subd. 7(d) (2018). This court
reviews the ULJ’s factual findings in the light most favorable to the decision, and we “will
not disturb those findings as long as there is evidence in the record that reasonably tends
to sustain them.” Wilson v. Mortg. Res. Ctr., Inc. , 888 N.W.2d 452, 460 (Minn. 2016)
(quotation omitted). “Credibility determinations are the exclusive province of the ULJ and
will not be disturbed on appeal.” Bangtson v. Allina Med. Grp. , 766 N.W.2d 328, 332
(Minn. App. 2009) (quotation om itted). This court applies a de n o v o s t a n d a r d w h e n

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reviewing questions of law. Superior Glass, Inc. v. Johnson, 896 N.W.2d 137, 142 (Minn.
App. 2017).
I. The ULJ did not unlawfully expand the scope of the evidentiary hearing.
Unemployment benefits are intended to assist those who are discharged through no
fault of their own. Minn. Stat. § 268.03, subd. 1 (2018). An applicant for unemployment
benefits must meet a number of eligibility requirements, including that the applicant was
available for and actively seeking suitable employment. Minn. Stat. § 268.085, subd. 1
(2018). On receiving an application, DEED must make an initial eligibility determination.
Minn. Stat. § 268.101, subd. 2 (2018). Then, if the initial de termination is timely
challenged by the employer or employee, a hearing must be held before a ULJ. Minn.
Stat. § 268.105, subd. 1(a) (2018). The ULJ must generally send a notice of hearing to the
parties at least ten days before the scheduled hearing date. M inn. R. 3310.2905, subp. 2
(2017). The notice must include the time and date of the heari ng, along with a statement
of the issues to be considered. Id. But, the ULJ may “take testimony and render a decision
on issues not listed on the notice of hearing if each party is notified on the record, is advised
of the right to object, and does not object.” Minn. R. 3310.2910 (2017).
Here, the notice of hearing stated that the issue to be conside red at the evidentiary
hearing was “[w]hether Charlotte M Only is ineligible for eight calendar weeks for failing
to apply, refusing, or avoiding an offer of suitable employment without good cause.” At
the evidentiary hearing, the ULJ stated he also needed to addre ss the question of Only’s
availability for suitable employment and asked Only if she was willing to waive notice of
this new issue. The ULJ stated:

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[B]ased on, on the information that I’m hearing today, I think
there’s an issue of your availa bility for suitable employment
from November 4 and going into December into January. So
I’m going to be looking at your . . . availability for suitable
employment beginning November 4, and if you’re comfortable
with me addressing that issue today, we can continue to discuss
that. If you’re not willing to waive notice on that and you want
m o r e t i m e t o p r e p a r e , t h e n w e h a v e t o c o m e b a c k a n d , a n d
discuss that in a couple of weeks.

Only replied, “No, I’m ready to discuss this.”
Only argues that the ULJ committed reversible error by expanding the scope of the
evidentiary hearing to include an issue that involved an earlie r time period than that
encompassed by the issue noticed. In other words, Only argues that the ULJ improperly
expanded the scope of the hearing to include the period from No vember 4 to March 6,
instead of focusing on the eight-week period starting on December 20, which was the time
period in question with regard to the noticed issue. Only stat es that while the ULJ may
expand the issues to be decided at an evidentiary hearing under rule 3310.2910, the ULJ
cannot expand the temporal scope under this rule because a temporal scope does not qualify
as an “issue.” We are not persuaded. The ULJ did not simply expand the temporal scope.
The ULJ considered the issue of availability, which is a requir ement for eligibility under
Minn. Stat. § 268.085, subd. 1, and thus a proper issue for consideration. The time period
was necessarily expanded because Only testified that she did not work after October 2017.
Only also argues that her waiver of notice was inadequate because she was confused
by the ULJ’s questions. While Only may have been initially con fused by the ULJ’s
questioning, the ULJ clarified the time period and issue he was interested in addressing.
The ULJ explained that a previous proceeding had covered her av ailability from

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October 22, 2017 to November 4, 2 017. Only acknowledged there was a previous
proceeding, and told the ULJ she was “ready to discuss” her ava ilability beginning from
November 4, 2017. The ULJ adequately and thoroughly explained the new issue of her
availability and Only gave an express waiver of notice.
The ULJ informed Only of the new issue, asked if she had any objection, and Only
replied that she was ready to d iscuss her availability for suit able employment. The ULJ
complied with Minn. R. 3310.2910 and did not unlawfully expand the scope of the hearing.
II. The ULJ did not err in his denial of unemployment benefits.
As noted above, an applicant generally must be available for an d actively seeking
suitable employment to be eligible for unemployment benefits. Minn. Stat. § 268.085,
subd. 1(4), (5). There is an ex ception to this requirement if the applicant is in
“reemployment assistance training.” Id., subd. 1(4), (5). A person is in reemployment
assistance training when:
(1) a reasonable opportunity for suitable employment for the
applicant does not exist in the labor market area and
additional training will assist the applicant in obtaining
suitable employment;
(2) the curriculum, facilities, sta ff, and other essentials are
adequate to achieve the training objective;
(3) the training is vocational or s hort term academic training
directed to an occupation or s kill that will substantially
enhance the employment opportunities available to the
applicant in the applicant’s labor market area;
(4) the training course is full time by the training provider; and
(5) the applicant is making satisfactory progress in the training.

Minn. Stat. § 268.035, subd. 21c(a)(1)-(5) (2018). Additionall y, the training must have
actually started or be scheduled to start within 30 calendar days. Id., subd. 21c(d).

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The ULJ found that Only was not available for suitable employme nt or actively
seeking suitable employment because she failed to contact Regen cy about returning to
work, and her “attachment to the work force was not genuine and she was not making
reasonable or diligent efforts to obtain employment.” The ULJ also found that Only was
not enrolled in reemployment assistance training. While Only t estified that she has been
enrolled in the Dislocated Worker Program since November 17, 2017, the ULJ did not find
her testimony credible. The ULJ explained that “Only provided a business card for an
employment guidance counselor, but that does not prove she was found eligible or enrolled
in the Dislocated Worker Program.”
Only argues that the ULJ erred by denying unemployment benefits because she was
involved with the Dislocated Work er Program. In addition to th e business card, Only
p r o v i d e d t h e U L J w i t h a d o c u m e n t t h a t s t a t e d s h e h a d r e g i s t e r e d with the Dislocated
W o r k e r P r o g r a m . B u t r e g i s t e r i n g w i t h t h e D i s l o c a t e d W o r k e r P r ogram alone does not
qualify as being “in reemployment assistance training” within the meaning of the statute.
By its terms, section 268.035, subdivision 21c(a) requires that the applicant be enrolled in
training “full time” or be scheduled to start within 30 days. Only testified at the evidentiary
hearing held on March 6, 2018, that she was not enrolled in any training, and was instead
waiting for classes which were sch eduled to begin on May 29, 20 18. Because Only was
not actually enrolled in training at the time of the hearing, a nd any potential training was
to begin outside of the 30-day window, Only was not in reemployment assistance training
within the meaning of section 268.035, subdivision 21c(a).

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The record supports the ULJ’s d etermination that Only was not available for suitable
employment or actively seeking employment since November 5, 201 7. The record also
shows that Only was not enrolled in reemployment assistance training, which is necessary
to receive unemployment benefits pursuant to the exception for an “applicant who is in
reemployment assistance training” under Minn. Stat. § 268.085, subd. 1(4), (5). The ULJ
did not err by denying Only unemployment benefits.
III. The ULJ did not err in his credibility determination.

When the credibility of the involved parties testifying had a “ significant effect on
the outcome of [the] decision, the [ULJ] must set out the reason for crediting or discrediting
that testimony.” Minn. Stat. § 268.105, subd. 1a(a) (2018). O nly argues that the ULJ’s
credibility determination was insufficiently developed and violated her right to a fair trial.
She challenges the adequacy of the reasoning by the ULJ.
The ULJ found that Only was not credible because her testimony was inconsistent,
vague, and did not make sense. Explaining his determination, the ULJ stated:
The preponderance of the evid ence shows that Only avoided
an offer of suitable employment from [Regency] on
December 20, 2017. The evidence shows that Bridgeman
called and left a message for Only on December 20, 2017 about
available clients. Only testified that she did not receive the
message, but the [ULJ] did not find her testimony credible.
Only’s testimony was inconsistent, vague, and did not make
logical sense. Only claims she did not go out of town, but she
never contacted [Regency] about returning to work even
though she knew there was work available. Only
acknowledged that she did not contact [Regency] about other
clients after she decided to stay in town and she was unable to
provide a reasonable or convincing explanation for her failure
to contact [Regency] about returning to work. Bridgeman’s
testimony was credible because it was detailed, specific, and

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consistent. Bridgeman was able to provide specific detail
about when she called Only and what Only told her in her
voicemail messages. The greater weight of the evidence shows
that Only received the messages from Bridgeman and avoided
the offer of suitable employment.

The ULJ made express credibility d eterminations and explained h is reasoning. When
making credibility determinations, the ULJ may consider whether “testimony [is]
reasonable compared with other evidence” and whether a witness’ s testimony is
corroborated by other evidence. Ywswf v. Teleplan Wireless Servs., Inc., 726 N.W.2d 525,
532-33 (Minn. App. 2007). Here, the ULJ compared Only’s testim ony to the timeline of
events and specificity of Bridgeman’s testimony. The ULJ’s reasoning for his credibility
determinations is rational and sa tisfies the statutory obligati ons of section 268.105,
subdivision 1a(a).
IV. The ULJ sufficiently developed the record.

The ULJ “must ensure that all relevant facts are clearly and fu lly developed.”
Minn. R. 3310.2921 (2017). Only argues that the ULJ failed to clearly develop the facts
because he did not provide her with the opportunity to clarify perceived inconsistencies in
her testimony.
Only does not provide any caselaw to support her argument that when the ULJ does
not find an applicant’s testimony credible, the ULJ must provid e an opportunity for the
applicant to present additional testimony in order to satisfy r ule 3310.2921. Instead, she
argues that, because the ULJ did not believe her testimony and supporting exhibits
regarding her enrollment in the Dislocated Worker Program, the ULJ should have provided
her with the opportunity to present additional testimony or clarifications in order to fulfill

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his duty in assisting pro se parties. See Minn. R. 3310.2921 (requiring ULJ to ensure
relevant facts are clearly developed). But, the record shows t hat the ULJ provided ample
opportunity for Only to clarify discrepancies in her testimony and further explain her
answers. The ULJ asked Only mu ltiple follow-up questions about her enrollment in
training, the Dislocated Workers Program, and any steps she was t a k i n g t o f i n d
employment. And, near the end of the hearing, the ULJ asked On ly if she wanted to add
any additional information. Th e ULJ thus fulfilled his duty to assist Only and created a
sufficient evidentiary record.
The ULJ did not err by expanding the scope of the hearing, mak ing credibility
determinations, and denying Only unemployment benefits.
Affirmed.