This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Wayne A. Brutger,
Commissioner of Employment and Economic Development,
Filed June 14, 2005
Gordon W. Shumaker, Judge
Department of Employment and Economic Development
File No. 11086 04
Lee B. Nelson, Linda A. Holmes, Minnesota Department of Employment and Economic Development, E-200 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for respondent-commissioner)
Considered and decided by Dietzen, Presiding Judge; Toussaint, Chief Judge; and Shumaker, Judge.
GORDON W. SHUMAKER, Judge
Relator Candy Manke challenges the decision of the senior unemployment review judge that she was disqualified from receiving unemployment benefits and that her appeal was untimely. Manke argues that she did not receive the disqualifying letter. Because the evidence supports that the letter was appropriately mailed, we affirm.
Candy Manke was denied unemployment benefits because she quit her employment with respondent Wayne Brutger (d/b/a Super 8 Motel) in April 2004. A determination of disqualification was mailed to Manke on May 10, 2004, stating that it would be final unless an appeal was taken within 30 calendar days after the mailing date shown on the first page. Manke appealed her disqualification on June 23, 2004, 44 days after the mailing date of the disqualification determination. The unemployment law judge (ULJ) determined that Manke’s appeal was not timely and that there was no jurisdiction to hear the appeal on the merits. Manke appealed the ULJ’s decision to a senior unemployment review judge. The senior unemployment review judge declined to conduct any further proceedings and adopted the decision of the ULJ that Manke’s appeal was time barred. Manke filed a petition for writ of certiorari with this court, challenging the decision of the senior unemployment review judge.
D E C I S I O N
decision of the commissioner’s representative
to dismiss an appeal as untimely is a question of law, which this court reviews
de novo. Stottler v. Meyers Printing
Co., 602 N.W.2d 916, 918 (
Manke argues that the senior unemployment review judge erred in dismissing her appeal as time-barred because she never received the notice of disqualification. Manke testified that she did not learn of her disqualification until she called the department to ask about benefits related to her discharge from a previous employer. She further testified that she did not have any trouble with her mail service during this time period.
The record demonstrates that the
department mailed the disqualification determination to Manke’s correct address
on May 10, 2004. The department
submitted a certificate of mailing describing the system of checks and balances
it has to ensure that determinations and decisions are mailed on the designated
mailing date. These procedures include
“fail-safe features incorporated into the software programs . . . that
detect automatically any activity that deviates from the norm.” Further, department staff closely monitors
the operation of the software and “regularly spot check the dates on the
printed documents for accuracy . . . .” Finally, the department has a “close,
cooperative working relationship with the United States Postal Service that
facilitates timely mailing of the [d]epartment’s mail.” Also, this presents an issue of credibility
regarding Manke’s contention that she did not receive the notice. We defer to the senior unemployment review
judge on issues of credibility. Dean v. Allied Aviation Fueling Co., 381
N.W.2d 80, 83 (
 Effective for decisions issued after August 1, 2004, the statutory title of the individual conducting review proceedings under Minn. Stat. § 268.105, subd. 2 (2004), has been changed to “senior unemployment review judge.”