Patricia Lemke, Relator,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A23-1535

Patricia Lemke,
Relator,

vs.

ABLE, Inc.,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed July 1, 2024
Affirmed
Bjorkman, Judge

Department of Employment and Economic Development
File No. 49706405-2

Kyle R. Kroll, Robert B. Grimsley, Winthrop & Weinstine, P.A., Minneapolis, Minnesota
(for relator)

ABLE, Inc., Caledonia, Minnesota (respondent employer)

Keri Phillips, Katrina Gulstad, Minnesota Department of Employment and Economic
Development, St. Paul, Minnesota (for respondent department)

Considered and decided by Smith, Tracy M., Presiding Judge; Bjorkman, Judge;
and Frisch, Judge.

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NONPRECEDENTIAL OPINION
BJORKMAN, Judge
Relator challenges the determination of an unemployment-law judge (ULJ) that she
was ineligible for unemployment benefits because she was not available for suitable
employment, and the ULJ’s denial of her request for reconsideration. We affirm.
FACTS
Relator Patricia Lemke has worked for respondent ABLE Inc. as a direct support
professional for about 20 years. As of January 2023, Lemke worked overnight shifts from
10:00 p.m. to 8:00 a.m., for a total of 30 hours per week. On January 11, Lemke learned
that ABLE would be closing the house where she was working and her existing shifts
would be eliminated as of January 25. ABLE offered Lemke overnight shifts at two other
houses; the shifts ended at either 8:30 a.m. or 8:45 a.m. Lemke did not accept the proposed
schedule. When ABLE reached out to her at the end of the month, Lemke said she did not
want the proposed shifts because she did not want to work past 8:00 a.m. ABLE only had
one house with overnight schedules ending at 8:00 a.m., and other employees were already
scheduled to work those shifts. On January 27, Lemke asked to move from regularly
scheduled part-time shifts to on-call or substitute status; ABLE granted the request.
On January 29, Lemke established an unemployment-benefits account wit h
respondent Minnesota Department of Employment and Economic Development (DEED).
DEED initially determined that Lemke was eligible for benefits. ABLE appealed the
eligibility determination.
3
A ULJ conducted evidentiary hearings in May and June. 1 Lemke testified along
with several ABLE representatives. In her testimony, Lemke explained that she and her
husband are the primary caregivers for their two young grandchildren; her husband watches
them during the night and she watches them during the day, so she needs to be done with
work by 8:00 a.m. When the ULJ asked if someone else “could watch them so [she] could
work,” Lemke responded: “Well, my husband does until I get here, but then I need to be
here so he can go to work.” She testified that she is not available to work daytime shifts,
explaining that she would occasionally pick up daytime shifts if her husband was home
with the children, “but otherwise [she] normally just do[es] the overnight shifts.” And she
reported that even though she is still employed with ABLE, she ha d not worked a shift
since the end of January because “[t]here’ve been no overnight shifts that [she] could pick
up.” But ABLE representatives testified that there are shifts available during the day, or
evening, or overnight ending at 8:30 a.m. or 8:45 a.m., and that ABLE would provide the
necessary training for Lemke to work those shifts.
The ULJ determined that (1) Lemke did not separate from employment with ABLE,
so she is not ineligible for benefits under any of the provisions of Minn. Stat. § 268.095
(2022); (2) Lemke did not refuse an offer of suitable employment from ABLE, which
would make her ineligible for benefits under Minn. Stat. § 268.085, subd. 13c (2022),
because she did not separate from employment; but (3) Lemke had not been available for

1 The ULJ held the first hearing to determine whether Lemke had good cause for refusing
or avoiding an offer of employment. The ULJ reopened the record and set the second
hearing to determine whether Lemke quit or was discharged from employment and whether
she has been available for and actively seeking suitable employment.
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suitable employment since January 29 because she restricted the hours for which she was
available for work, making her ineligible for benefits under Minn. Stat. § 268.085, subd. 1
(2022), “continuing unless conditions change.” The ULJ noted that if Lemke’s
circumstances changed “and she has childcare in place during the daytime, and is available
to work during daytime, she may contact [DEED] to report” the change.
Lemke requested reconsideration, stating that she has a friend “available if an offer
of suitable employment (any hours) is offered,” she has “never been offered” daytime
hours, she “did not realize” that saying she was looking for overnight hours would
disqualify her from benefits, and she “prefer[s] overnights but [is] available for suitable
work (any hours) if offered.” The ULJ denied reconsideration, explaining that “Lemke’s
unsworn written statement . . . that she had childcare available during the daytime is not
persuasive, or credible, in light of her sworn testimony during the hearing.”
Lemke appeals by writ of certiorari.
DECISION
When reviewing an unemployment-benefits eligibility determination, we may
“affirm the decision of the unemployment law judge or remand the case for further
proceedings.” Minn. Stat. § 268.105, subd. 7(d) (202 2). We may also reverse or modify
the decision if relator’s substantial rights “may have been prejudiced” because the decision
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.” Id.
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We review the ULJ’s factual findings “in the light most favorable to the decision”
and defer to the ULJ’s credibility determinations. Neumann v. Dep ’t of Emp. & Econ.
Dev., 844 N.W.2d 736, 738 (Minn. App. 2014) (quotation omitted). We will not disturb
the factual findings if the evidence “substantially sustains them.” Id. (quotation omitted).
To be eligible for unemployment benefits, a person must satisfy several conditions,
including being “unemployed” (which does not necessarily mean separated from
employment) and “available for” and “actively seeking suitable employment.” Minn. Stat.
§ 268.085, subd. 1(3), (4), (5); see Minn. Stat. § 268.035, subd. 26 (2022) (providing that
a person is “unemployed” if they “perform[] less than 32 hours of service in employment”
and earn less than their “weekly unemployment benefit amount”). And they must not have
any circumstances that render them ineligible, such as quitting without good cause or being
discharged for employment misconduct. See Minn. Stat. § 268.095, subds. 1, 4.
Lemke challenges the ULJ’s finding that she was not available for suitable
employment and argues that the ULJ abused her discretion by denying reconsideration. 2
We address each argument in turn.

2 Lemke also asserts that the ULJ erred by determining that she did not separate from
employment with respondent employer and relied on erroneous reasoning in determining
that she did not refuse an offer of suitable employment. But the sole basis for the ULJ’s
determination that Lemke was ineligible for benefits is the finding that she was not
available for suitable employment. Because any error in the ULJ’s reasoning with regard
to those other issues did not affect Lemke’s substantial rights, we decline to address them.
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I. Substantial record evidence supports the ULJ’s finding that Lemke was not
available for suitable employment.

Whether an applicant is available for suitable employment is a question of fact. See
Semanko v. Dep’t of Emp. Serv., 244 N.W.2d 663, 665 (Minn. 1976) (stating that “[t]he
question of availability for work must be determined anew on the facts of each case”). As
noted above, we review factual findings in the light most favorable to the ULJ’s decision
and will not disturb them if the evidence supports them. Neumann, 844 N.W.2d at 738.
“Suitable employment” is defined as employment that is in the person’s “ labor
market area ” and “reasonably related” to the person’s qualifications. Minn. Stat.
§ 268.035, subd. 23a(a) (2022). A person is “available for suitable employment” if they
are “ready, willing, and able to accept suitable employment.” Minn. Stat. § 268.085,
subd. 15(a) (2022). Conversely, a person is not “available for suitable employment” if they
impose restrictions on when they will work— hours of the day or days of the week— that
are “not normal for [their] usual occupation or other suitable employment.” Id., subd. 15(d)
(2022). A person seeking u nemployment benefits “must be available for daytime
employment, if suitable employment is performed during the daytime, even though [they]
previously worked the night shift.” Id.
The ULJ found that suitable employment includes daytime shifts and Lemke has
limited her availability to overnight shifts that end by 8:00 a.m. because she has caregiving
responsibilities for her young grandchildren starting at that time. Lemke does not dispute
that suitable employment includes daytime shifts. But she contends the ULJ erred in
finding that she restricted her availability because “the testimony reveals [she] was
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available at various times throughout the day.” The record defeats this argument. Lemke
testified expressly and repeatedly that she takes care of her grandchildren during the day,
starting at 8:00 a.m., and is unavailable for daytime shifts or overnight shifts that end after
that time. ABLE representatives similarly testified that Lemke told them she would not
work past 8:00 a.m.
Lemke also asserts that the ULJ erred by failing to elicit further information from
her about who else might be available to watch her grandchildren during the day so she
could work. She is correct that ULJ s are required to “assist all parties in the presentation
of evidence” and “ensure that all relevant facts are clearly and fully developed.” Minn. R.
3310.2921 (2021). But she has not demonstrated that the ULJ failed to do so. To the
contrary, when Lemke testified to her 8:00 a.m. deadline, the ULJ expressly asked if
“someone else” could watch the children “so [she] could work,” to which Lemke
responded: “Well, my husband does until I get here, but then I need to be here so he can
go to work.” Given that response and Lemke’s repeated statements that she is unavailable
for work during the daytime because of her caregiving responsibilities, we see no error by
the ULJ in not inquiring further.
Nor are we persuaded by Lemke’s similar argument that the ULJ limited her ability
to testify about her availability by excluding an exhibit she submitted to DEED before the
second hearing.
3 A ULJ has broad discretion in evidentiary matters. See Minn. R.
3310.2922 (2021) (addressing receipt of evidence). And even improper exclusion of

3 The ULJ excluded the exhibit because ABLE had not received a copy of it before the
hearing.
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evidence does not warrant reversal if it was harmless. See Ywswf v. Teleplan Wireless
Servs., Inc., 726 N.W.2d 525, 530 (Minn. App. 2007) . That is the situation here. The
exhibit in question comprises Lemke’s timeline of events, her work search record, and text
messages she exchanged with a coworker. In excluding the exhibit, the ULJ invited Lemke
to testify about its contents and Lemke did so—she described the events of early 2023, her
work search, and her communications with coworkers. She does not identify anything in
the exhibit that she was prevented from testifying about or anything in the exhibit that
would have shown that, despite her testimony, she was available for daytime work.
Accordingly, we discern no prejudice in its exclusion.
In sum, we are satisfied that the ULJ appropriately elicited relevant evidence from
Lemke and the other witnesses and that substantial evidence supports the finding that
Lemke was unavailable for suitable employment.4
II. The ULJ did not abuse her discretion by denying Lemke’s request for
reconsideration.

A ULJ must order an additional hearing if a party shows that evidence not submitted
at the hearing (1) “would likely change the outcome of the decision” and the party had
“good cause” for not submitting it previously, or (2) would show that the evidence
submitted at the hearing “was likely false and that the likely false evidence had an effect

4 Lemke contends the ULJ erred by determining that she was overpaid benefits. But she
does not dispute that she received benefits, and the record supports the ULJ’s determination
that she was unavailable for suitable employment and therefore ineligible to receive
benefits. Because those are the only two criteria for an overpayment, Minn. Stat.
§ 268.101, subd. 6 (2022), and Minnesota law expressly prohibits any “equitable”
allowance of benefits, Minn. Stat. § 268.069, subds. 1, 3 (2022), we discern no error in the
overpayment determination.
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on the outcome of the decision.” Minn. Stat. § 268.105, subd. 2(c) (2022). We defer “to a
ULJ’s decision not to hold an additional hearing and will reverse that decision only for an
abuse of discretion.” Eley v. Southshore Invs., Inc., 845 N.W.2d 216, 218 (Minn. App.
2014) (quotation omitted).
Lemke asserts two challenges to the denial of her reconsideration request. First, she
argues that the ULJ abused her discretion b y rejecting Lemke’s statement that she has
daytime childcare as not credible simply because it conflicted with Lemke’s testimony.
Lemke attributes her testimony that she was unable to work during the day to the fact she
“is not an attorney and would have no reason to understand the nuances of Minnesota
unemployment law.” But the ULJ’s decision did not hold her to such a standard. It merely
held her to the obligation to testify truthfully and declined to order an additional hearing
based on a new, unsworn statement that contradicted Lemke’s sworn testimony about
needing to care for her grandchildren during the day.
Second, Lemke contends the ULJ improperly rejected the new statement because
she “followed the exact instructions” the ULJ provided in the initial decision. This
contention conflates the merits of the ULJ’s decision with its scope. The issue before the
ULJ was whether Lemke was available for suitable employment between the end of
January 2023 and the evidentiary hearings in May and June 2023; the ULJ determined
Lemke was not available (and thus ineligible for benefits) during that time frame and
“continuing unless conditions change.” The instructions Lemke points to further spell out
the scope of the ULJ’s decision: “If Lemke’s circumstances have changed and she has
childcare in place during the daytime, and is available to work during daytime, she may
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contact [DEED] to report that her circumstances have changed . . . .” In other words, the
instructions advise Lemke that her ineligibility will continue until she becomes available
for daytime work. As such, the instructions neither undermine nor conflict with the ULJ’s
supported decision under review or otherwise warrant reconsideration.
Affirmed.