This opinion will be unpublished and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
Maurice L. Mitchell,
Valmont Industries Inc.,
Department of Employment and Economic Development,
Filed September 6, 2005
Department of Employment and Economic Development
File No. 16107 04
Maurice L. Mitchell, General Mail,
Valmont Industries Inc.,
Linda A. Holmes, Department of Employment and Economic Development, E200 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for respondent commissioner)
Considered and decided by Worke, Presiding Judge; Halbrooks, Judge; and Parker, Judge.*
Pro se relator challenges the decision of the senior-unemployment-review judge to dismiss relator’s appeal based on Minn. Stat. § 268.105, subd. 2a(b) (2004). Because we conclude that the senior-unemployment-review judge did not err by dismissing relator’s appeal, we affirm.
Relator Maurice Mitchell worked as a laborer and painter at respondent Valmont Industries, Inc. (Valmont) for nearly two years. After several attempts at corrective action, Valmont discharged relator on September 24, 2004, for repeated tardiness. Relator applied for unemployment benefits, and the Minnesota Department of Employment and Economic Development determined that relator was disqualified from receiving unemployment benefits because his “inability to report for scheduled work demonstrate[d] a disregard for the employer’s interests,” constituting employment misconduct.
Relator appealed, and a telephonic evidentiary hearing was scheduled before an unemployment-law judge (ULJ) on November 4, 2004. In the hearing notice, relator was advised, “If you fail to participate in the scheduled hearing, you may be prevented from appealing further unless you have a compelling reason for not participating.” At the hearing, the ULJ attempted twice to contact relator but was unable to do so because relator “had only a voicemail message on his machine.” Two witnesses appeared at the hearing on behalf of Valmont. The ULJ found that relator was terminated from his employment because he continuously failed to meet the company’s attendance requirements. Because evidence of repeated failure to comply with attendance warnings may support a finding of employee misconduct, the ULJ concluded that relator was discharged for employment misconduct and was therefore disqualified from receiving benefits.
Relator then appealed to a senior-unemployment-review judge (SURJ) for further review. Because relator did not show any reason for his failure to participate in the evidentiary hearing before the ULJ, the SURJ dismissed relator’s appeal. This certiorari appeal follows.
his letter brief, relator fails to explain why he did not participate in the
evidentiary hearing before the ULJ.
Instead, he appears to argue the merits of his case, claiming that he
was terminated because Valmont managers “did not like [him].” But our review is limited to the SURJ’s
decision to dismiss relator’s appeal on the basis that he failed to participate
in the hearing. Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (
If an involved party fails, without good cause, to appear and participate at the evidentiary hearing conducted by [a ULJ], and that party files an appeal, a [SURJ] shall have the discretion to decline to conduct a de novo review. If de novo review is declined, the [SURJ] shall issue an order dismissing the appeal.
Here, the SURJ specifically found that relator “ha[d] not shown any reason for his failure to participate in the November 4, 2004, evidentiary hearing.” (Emphasis added.) Because relator did not offer any explanation to the SURJ as to why he failed to participate in the hearing, he clearly did not have “good cause” for not participating in the hearing. Nevertheless, on certiorari appeal to this court, relator submitted a timesheet indicating that he worked 26.75 hours for a paycheck processed on November 10, 2004. Even accepting the inference that relator was working during the ULJ’s evidentiary hearing, this alone would not have prevented “a reasonable person acting with due diligence from appearing and participating at the evidentiary hearing.” Minn. Stat. § 268.105, subd. 2a(b). Aware that unemployment benefits would potentially be at stake, a reasonable person acting with due diligence would have made arrangements to participate in the telephonic hearing by either (1) requesting time off from work or (2) rescheduling the hearing at a more convenient time, if time off was not a possibility.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
Recent legislative amendments to the
unemployment-benefits statutes substituted the term “senior unemployment review
judge” for the commissioner’s representative.