A20-0352

This opinion will be unpublished and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
A20-0118
A20-0352

Don Modeen,
Relator,

vs.

Meribel Enterprises LLC,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed December 14, 2020
Affirmed
Connolly, Judge

Department of Employment and Economic Development
File No. 36561782-6

Davida S. McGhee, Greene Espel, Minneapolis, Minnesota (for relator)

Meribel Enterprises LLC, Minneapolis, Minnesota (respondent employer)

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

Considered and decided by Connolly, Presiding Judge; Reyes, Judge; and Gaïtas,
Judge.

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U N P U B L I S H E D O P I N I O N
CONNOLLY, Judge
Relator challenges an unemployment-law judge’s (ULJ) determination that he was
not “available for suitable employment” as defined in Minn. Stat. § 268.085, subd. 15
(2018). Relator also challenges a second ULJ’s determination that relator owes respondent
Department of Employment and Economic Development (DEED) a debt in the amount of
$4,275 that is properly recoverable under the Minnesota Revenue Recapture Act, Minn.
Stat. § 270A.03 (2018 & Supp. 2019). We affirm.
FACTS
Don Modeen ( Relator) worked for Meri bel Enterprises LLC (Meribel ), a custom
sheet metal fabrication shop located in Minneapolis , from September 20, 2010 , to
November 16, 2017. He worked the second shift, from 2:30 p.m. to 1:00 a.m., four days a
week. He earned $25.26 per hour.1 Relator commuted from his home in Elk River, which
was 40 miles each way. On November 1, 2017, Meribel informed relator that it was ending
his second-shift position and opening up a position on the first shif t for him. Relator did
not want to work the first -shift position. Relator wanted to remain on the second shift
because his wife had multiple sclerosis (MS); the commute would ta ke an hour and a half
each way and relator and his wife “were not comfortable with [her] being ‘on her own’ in
the morning.” Initially, Meribel and relator agreed that relator would continue work on the
second shift through the end of 2017, but that relator was not accepting the first -shift

1 This includes a $0.65 premium for working the second shift.

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position. Meribel “changed its mind” on November 17, 2017 and “did not want [relator]
to work through the rest of the year.” Relator did not go to work after that date.
Relator applied for unemployment benefits beginning on November 19, 2017. On
June 13, 2018, an evidentiary hearing was hel d to determine whether relator was eligible
for unemployment and whether he was “available for and actively seeking suitable
employment” under Minn. Stat. § 268.085 , subds. 1, 15 (2018). At the hearing, relator
testified about his wife’s MS, his preferenc e to be home in the mornings, and his
unwillingness to work further than 20 miles from home on the first shift. He was actively
applying to jobs that were located within 10 to 20 miles from his home. He testified that
he also applied to jobs that were “too far away,” i.e. greater than 20 miles from home. The
ULJ determined that relator quit his job. The ULJ also found that relator was “not available
for suitable employment” because he was “not available for work located more than a 20-
minute drive from his home.” Relator filed a request for reconsideration on July 6, 2018.
On September 5, 2018, the ULJ issued an Order of Affirmation. On October 2, 2018,
relator filed an appeal with this court.
In an unpublished opinion on June 17, 2019, this court det ermined that the ULJ’s
finding that relator “quit” was not supported by substantial evidence and reversed the ULJ’s
determination on that issue. Modeen v. Meribel Enterprises, LLC , A18-1610, 2019 WL
2495655 (Minn. App. June 17, 2019). This court further determined that substantial
evidence did not support the finding that relator was not available for work, and that the
ULJ failed to make any findings regarding relator’s labor market area. This court remanded
for the ULJ to “(1) make findings regarding [relator’s] labor market area and (2) determine

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whether [relator’s] 20 -mile limitation is a restriction that renders him unavailable for
suitable employment based on his labor market area.” Id. at *5.
The ULJ held a hearing August 2019 pursuant to the remand order and issued a
second decision. The ULJ determined that relator’s labor market area was “Sherburne,
Anoka, Wright, Hennepin, Benton, and Stearns counties.” In these counties, between
November 2017 and November 2018, there were 18,627 manufacturing openings; 65% of
these paid at least $50,000 annually. The average commute was 33 minutes , and nearly
half of all residents left for work between 6:00 a.m. and 8:00 a.m. Accordingly, “suitable
employment for [relator] included first shift positions located 45 minutes from his home.”
The ULJ determined that relator’s 20 -mile restriction on his job search was a personal
restriction that rendered him “not ready and willing” to accept a position. For that reason,
relator was not available for suitable employment and was inelig ible for unemployment
benefits. This decision resulted in an overpayment of $4,275 in unemployment benefits,
which the court determined was recoverable under the Minnesota Revenue Recapture Act.
Relator now appeals both decisions.
D E C I S I O N
Availability
To be eligible for unemployment benefits, an applicant must be “available for
suitable employment.” Minn. Stat. § 268.085, subd. 1(4). “‘Available for suitable
employment’ means an applicant is re ady, willing, and able to accept suitable
employment.” Id., subd. 15. “An applicant may restrict availability to suitable
employment, but there must be no other restrictions, either self -imposed or created by

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circumstances, temporary or permanent, that prevent accepting suitable employment.” Id.
Relator argues that there is not substantial evidence to support the ULJ’s determination that
he was not available for suitable employment. Accordingly, the issue is whether relator’s
self-imposed 20-mile limitation on his job search rendered him “not available.”
Whether an applicant is available for suitable employment is a question of fact.
Semanko v. Dep’t of Emp. Serv., 244 N.W.2d 663, 665 (Minn. 1976). “This court views
the ULJ’s factual findings in the light most favorable to the decision. This court also gives
deference to the credibility determinations made by the ULJ. As a result, this court will
not disturb the ULJ’s factual findings when the evidence substantially sustains them.”
Peterson v. Nw. Airlines, Inc., 753 N.W.2d 771, 774 (Minn. App. 2008) (citations omitted),
review denied (Minn. Oct. 1, 2008).
Faced with conflicting testimony from the June 2018 and the August 2019 hearings,
the ULJ made a credibility determination that is supported by substantial evidence.
Consequently, we are bound by that credibility determination. “This court views the ULJ’s
factual findings in the light most favorable to the decision. This court also gives deference
to the credibility determinations made by the ULJ.” Id. at 774.
In the order finding that relator was unavailable for suitable employment, the ULJ
stated that relator’s testimony in August 2019 was inconsistent with “several statements he
made during the June 13, 2018 hearing.” During the June 2018 hearing, relator stated
numerous times that a daytime job located more than 20 miles from his home was “too
far.” For example, in June 2018, r elator stated that he would only be willing to accept a

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day-shift job if it was “[n]o m ore than maybe 20 minutes away,” and several positions he
applied to were “too far away.” Modeen, 2019 WL 2495655, at *5.
Relator now argues that the 20 -mile limitation was merely a preference, not a
restriction, and he relies on the fact that he applied to many jobs that were ou tside of the
20-mile radius. But the ULJ stated, in her order following both the June 2018 and August
2019 hearings that an application to a job “is not per se proof of availability for suitable
employment” and that relator’s testimony about the importance of working a first-shift job
within 20-minutes of his home was more persuasive. Specifically, in June 2018, relator
stated: “you know, I really don’t mind where I go to work or what I do . . . it’s not important
as long as I’m close to home if I have to work during the day. That’s what’s more
important.” But, in August 2019, he stated that he would be willing to accept positions
that were located over 30 miles away. The ULJ pointed out the conflicting nature of these
statements and asked relator what w ould make the hour -long drive “okay” now and he
stated: “I guess I didn’t think clearly my last answer at the last hearing.” She also asked
relator, “Why are you telling me today that you would drive 60 min utes” to which relator
replied, “I don’t have an adequate answer for that.”
In making her credibility determination, the ULJ also considered the fact that relator
rejected Meribel’s offer to work the first shift. Relator argues that the ULJ improperly
relied on this evidence because this court “reverse d that finding and held that [he] was
terminated.” This argument fails. The ULJ did not base her determination on the fact that
relator quit his job, as opposed to being discharged. Instead, the ULJ took into
consideration the fact that relator was pres ented with a job offer for the first shift but had

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already decided, at the time the employment relationship ended, that he did not want to
work that shift “due to the commute” and because his wife had MS and was “accustom[ed]
to their routine.” The record supports the ULJ’s credibility determination. The evidence
of relator’s labor market area supports the ULJ’s finding that suitable employment included
first-shift positions located 45 minutes from his home. The record supports the finding that
relator was not ready and willing to accept employment located more than 20 miles from
his home and was therefore not available for suitable employment.
Revenue Recapture
Relator challenges a second ULJ’s finding that he owes a debt to DEED which is
recoverable under the Minnesota Revenue Recapture Act. The determination, discussed
above, that relator was ineligible for unemployment benefits , resulted in an overpayment
of unemployment benefits in the amount of $4,275.
Due to the COVID-19 pandemic, DEED cancelled all revenue recapture claims on
March 28, 2020. DEED had not collected any amount from relator before this date. This
court’s decision that relator was unavailable for suitable employment means that relator
does owe a debt in the amount of $4,275 payable under the Minnesota Revenue Recapture
Act. However, if DEED intends to recover the amount in the future, it must restart the
collection process.
Affirmed.