This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1487

 

Adar Oble,
Relator,

vs.

American Building Maintenance Corp,
Respondent,
Commissioner of Employment and Economic Development,
Respondent.

 

Filed June 15, 2004

Affirmed

Stoneburner, Judge

 

Department of Employment and Economic Development

File No. 8288 03

 

Kevin Reuther, Law Office of the Legal Aid Society of Minneapolis, Suite 300, 430 First Avenue North, Minneapolis, MN 55411 (for relator)

 

American Building Maintenance Corp., c/o Employers Unity Inc., Box 749000, Arvada, CO 80006-9000 (respondent employer)

 

Lee B. Nelson, Linda A. Holmes, Department of Employment and Economic Development, 390 North Robert Street, St. Paul, MN 55101 (for respondent commissioner)

 

††††††††††† Considered and decided by Schumacher, Presiding Judge; Stoneburner, Judge; and Hudson, Judge.

U N P U B L I S H E D† O P I N I O N

 

STONEBURNER, Judge

††††††††††† Relator challenges the commissionerís representativeís dismissal of her appeal as untimely.† We affirm.

FACTS

 

Relator Adar Oble is a Somali immigrant who has lived in the United States for 10 years.† Prior to coming to the United States, she lived in Kenya for three years.† Her educational background consists of three years of elementary school in Somalia and less than one year of English-as-a-second-language class in the United States.

Relator applied for unemployment benefits after she was discharged from her job with American Building Maintenance.† She was able to read and answer in English many of the questions on the Department of Employment and Economic Developmentís application for benefits and questionnaire, but she needed assistance to complete the forms, which were returned to her once for corrections.

††††††††††† A department adjudicator determined that relator is disqualified from receiving unemployment benefits because she was discharged for misconduct.† The department mailed a determination of disqualification to relator on April 8, 2003, and it was received by her shortly thereafter.† After the 30-day appeal period had expired, relator met with the legal aid staff who submitted an appeal on her behalf on May 22, 2003, two weeks after the 30-day filing period had expired.† The letter of appeal explained that although the appeal may appear untimely, the appeal time had not expired because relator did not receive meaningful and effective notice of the determination and appeal rights, and refusing her appeal would violate due process.† †

††††††††††† The department granted a hearing on the issue of whether relatorís appeal was timely.† Relator was assisted by an interpreter at the hearing.† She testified that she reads and understands some English and understood from the notice that benefits had been denied.† She testified that when she saw the determination she wanted somebody to explain it to her and tell her why she could not get benefits.† Relator testified that she saw the date concerning time for appeal but did not understand the ďlegal circumstances.Ē

††††††††††† The ULJ affirmed the determination that relatorís appeal was untimely on the grounds that the time limits for filing appeals are clear, unambiguous, and absolute.† The ULJ did not address relatorís argument that her appeal was timely due to deficiencies in the notice.† Relator appealed to the commissionerís representative.†

††††††††††† The commisisonerís representative held that the appeal was untimely and that the department therefore lacked jurisdiction to hear the appeal.† The decision was based on the commissionerís representativeís findings that relator ďreads and understands English,Ē she read the determination when she received it, ďand knew she had been disqualified from benefits and saw the appeal date.† She understood the determination and the consequences.Ē† The commissionerís representative further explained that the evidence demonstrates that relator had submitted English application forms to the department within required timeframes, and her English comprehension was further demonstrated by the fact that she responded directly in English to a question at the hearing about her educational level.† This appeal by writ of certiorari followed.†

††††††††††† This court granted relatorís motion to submit results of a post-hearing test of relatorís English proficiency, showing that she reads English at or below a first-grade reading level, as an offer of proof of evidence that relator would submit if a remand is granted.†

D E C I S I O N

 

††††††††††† On appeal, a reviewing court must examine the decision of the commissionerís representative, rather than that of the unemployment law judge.† Kalberg v. Park & Recreation Bd., 563 N.W.2d 275, 276 (Minn. App. 1997).† Decisions of the commissionerís representative are accorded ďparticular deference.Ē† Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).† The question of whether the commissionerís representative erred in dismissing an appeal for lack of jurisdiction is a question of law reviewed de novo.† Stottler v. Myers Printing Co., 602 N.W.2d 916, 918 (Minn. App. 1999).† Constitutional claims also present legal questions reviewed de novo.† Modrow v. JP Foodservice, Inc., 656 N.W.2d 389, 393 (Minn. 2003).† But ďwe review the commissionerís factual findings in the light most favorable to the commissionerís decision and will not disturb them as long as there is evidence that reasonably tends to sustain those findings.Ē Schmidgall v. FilmTec Corp, 644 N.W.2d 801, 804 (Minn. 2002).† If there is any evidence reasonably tending to sustain the finding, it will not be disturbed.† Markel v. City of Circle Pines, 479 N.W.2d 382, 383-84 (Minn. 1992).†

††††††††††† Relator argues that the commissionerís representative erred as a matter of law in dismissing her appeal as untimely.† She claims that the appeal cannot be considered untimely because she was denied meaningful and effective notice of the determination and her appeal rights.† ††††††

††††††††††† Unemployment benefits are an entitlement, protected by procedural due process requirements.† Schulte v. Transportation Unlimited, Inc., 354 N.W.2d 830, 832 (Minn. 1984).† Relator argues that due process was not satisfied because the notice provided was not adequate under the circumstances.† See Bliek v. Palmer, 102 F.3d 1472, 1475 (8th Cir. 1997) (stating that the need for adequate notice is settled law).† Relator cites United States Supreme Court cases stating that notice must be reasonably calculated to inform the individual being notified of the action and afford them an opportunity to respond.† See Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 657 (1950) (stating that the fundamental purpose of notice is to apprise interested parties of the pendency of the action, and that notice should reasonably convey the required information.); see also Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 2600 (1972) (ďdue process . . . calls for such procedural protection as the particular situation demandsĒ).† Relator believes these cases require that the Department, at a minimum, include a language block[1] with mailings of determinations and notice of appeal rights.

Minnesota appellate courts have not addressed the issue of whether English-only notice satisfies due process, but many other courts have rejected the claim that a due process violation results from providing official notices in English to a non-English speaking person.† See Soberal-Perez v. Heckler, 717 F.2d 36, 43 (2nd Cir. 1983) (ďA rule placing the burden of diligence and further inquiry on the part of a non-English speaking individual served in this country with a notice in English does not violate any principle of due process.Ē); see also Carmona v. Sheffield, 475 F.2d 738, 739 (9th Cir. 1973) (notices related to denials of unemployment benefits sent in English to non-English speaking applicants did not violate due process); Alfonso v. Bd. of Review, Depít of Labor and Industry, 444 A.2d 1075, 1077-78 (N.J. 1981) (notices of determination sent in English to non-English speaking applicants did not violate due process).†

††††††††††† Relator points to a single case from the New Jersey Supreme Court that has held that ďEnglish-only notices sent to migrant farm workers in Puerto Rico [are not] reasonably calculated to provide those persons with adequate notice.Ē† Rivera v. Bd. of Review, 606 A.2d 1087, 1092 (N.J. 1992).† In that case, an applicant was denied a hearing on the merits because he failed to appeal within the limitations period.† Id. at 1088-89.† But the court in that case limited the decision to the specific factual background involving the peculiar circumstances of migrant workers located in Puerto Rico.† Id. at 1092.† Specifically, the decision turned on the fact that the very brief seven-day appeal period had expired by the time the notice reached the applicant, and the applicant did not read or write any language.† Id. at 1088, 1092.† He promptly requested that his daughter translate the document and learned that he had missed his chance to appeal.† Id. at 1088.

††††††††††† Respondent argues that relator is in a very different position because the appeal period of 30 days in this case is significantly longer than in Rivera, relator did not act to find out more about her appeal rights until more than a month after receiving the determination, and most importantly, relator reads and understands English.† Relator admits that she understood that benefits were denied and respondent argues that had she acted promptly to obtain translation of any parts of the document she did not understand, she would have had ample time to file her appeal.† Respondent asserts that the statute is clear, and the caselaw is unanimous, that the running of the appeal period begins with mailing, and not at the time a recipient became aware of the contents of the determination.† See Minn. Stat. ß 268.101, subd. 2(e) (2002).† We agree.†

††††††††††† There is evidence in the record to support the commissionerís representativeís finding that relator understood from the determination that her application for benefits had been denied, and she saw the date concerning appeal.† The record also supports the findings that she was able to timely fill out the English application for benefits in English and could understand and answer a question at the hearing without the assistance of the interpreter.† Given our limited scope of review in these cases, we conclude that the commissionerís representativeís findings should not be disturbed and that the findings support the implied conclusion that relator received adequate notice that satisfies due process.† The findings therefore support the commissionerís representativeís conclusion that relatorís appeal was untimely.

††††††††††† Relator urged this court to consider the post-hearing testing of relatorís English proficiency, arguing that relator was unaware that English proficiency would be an issue at the hearing.† But relatorís entire argument on timeliness rested on her claim that she was unable to understand the determination, a claim that the evidence presented at the hearing did not fully support.† We decline to consider the test result in connection with this appeal, but note that even if we accept the assertion that relator reads English at or below a first-grade reading level, the evidence is still clear that she understood from reading the determination notice that she had been denied the benefits she applied for, but failed to obtain any assistance regarding what she did not understand for more than 30 days.† Reading at a first-grade level does not imply that an adult reader would not understand the importance of getting assistance with a document she recognized as important.††

††††††††††† Untimely notice of appeal deprived the department of jurisdiction over this appeal.† See Minn. Stat. ß 268.105, subd. 2(a) (2002) (allowing appeal of the departmentís determination to the commissioner within 30 days); Semanko v. Depít of Employment Servs., †309 Minn. 425, 244 N.W.2d 663, 666 (1976) (upholding dismissal of appeal filed one day after applicable appeal period expired and stating that statutory time period for appeal was ďabsolute and unambiguousĒ); see also King v. Univ. of Minn., 387 N.W.2d 675, 676-77 (Minn. App. 1986) (applying predecessor statute to deprive this court of jurisdiction where appeal from a decision by the Commissionerís representative was not taken within 30 days).

††††††††††† Under the facts of this case, we decline to reach appellantís arguments that the departmentís failure to include a language block with the notice of determination violated federal regulations and federal and state human rights statutes, and that the appropriate remedy for such violations is to hold that relatorís appeal was timely.††

††††††††††† But nothing in this opinion is meant to discourage the department from providing a language block, already in use by the department once an appeal is perfected, to recipients of determination notices.†††

††††††††††† Affirmed.

 



[1] A language block is a notice, currently in six languages including Somali, used by the Department after an appeal is filed to notify the recipient that the information in an English-language document is important and time-sensitive and that the recipient should seek assistance, if necessary, in understanding the document.