This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






Pa K. Vang,


The Work Connection, Inc.,

Department of Employment and Economic Development,


Filed April 10, 2007


Minge, Judge


Department of Employment and Economic Development

File No. 1400 06



Pa K. Vang, 2380 Island Drive, #214, Spring Park, MN 55384 (pro se relator)


Work Connection, Inc., 1340 Crystal Lane, Chaska, MN 55318 (respondent)


Lee B. Nelson, Linda A. Holmes, Department of Employment and Economic Development, E200 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for respondent department)


            Considered and decided by Minge, Presiding Judge; Stoneburner, Judge; and Wright, Judge.


U N P U B L I S H E D  O P I N I O N


MINGE, Judge


Relator challenges the unemployment law judge’s decision to dismiss her request for reconsideration as untimely.  Because relator filed the request 31 days after the mailing of the unemployment law judge’s decision, we affirm.


In June 2005, relator Pa K. Vang began working at The Work Connection, Inc. (the employer) as a full-time staffing professional.  Relator’s duties included interviewing temporary employees and placing them with clients in need of temporary service.

Relator received several warnings regarding tardiness and performance issues.  Also, she admitted to the employer that she had reported to work hung over on more than one occasion.  The employer warned her that because she spent an unusually long amount of time in the restroom when she was hung over, her performance was suffering and her job was “in jeopardy.”  On December 13, 2005, relator received a “last and final warning.”  The warning indicated that relator had already been tardy twice in December, that she had knowingly given false information to a client, and that she had failed to properly perform regular duties including employee placement.  On January 5, 2006, relator spent much of her morning in the restroom, and she asked to leave because of illness.  Relator’s actions that morning were consistent with other instances in which she had been hung over.  The next day, the employer discharged relator because of tardiness, unsatisfactory performance, and reporting to work with a hangover. 

The Department of Employment and Economic Development (the department) initially determined that relator was not discharged because of misconduct, and decided that relator was entitled to unemployment benefits.  The employer appealed that decision, and a telephone hearing was scheduled before an unemployment law judge (ULJ).  After the hearing had been rescheduled several times, the parties agreed to set a telephone hearing for a time certain on March 20, 2006.  Before that date, relator took a new job and called the department to request another rescheduling of the hearing because it conflicted with her work schedule.  The department denied the request, and the ULJ later indicated that “the parties had adequate notice and opportunity to participate in this proceeding and . . . it is not necessary to reschedule this matter another time.” 

On March 20, 2006, the ULJ called relator at the scheduled time.  Relator did not answer, but a recording device did offer to accept a message.  The ULJ left two messages, but relator did not return the calls.  The ULJ then conducted the telephone hearing with only the employer participating.  After the hearing, the ULJ issued a written decision, which stated that “[relator] was discharged from her employment due to employment misconduct.”  The ULJ’s decision, which disqualified relator from receiving unemployment benefits, was dated and mailed to relator on March 20, 2006.  That decision stated that it would become final unless a written request for reconsideration was filed “within 30 calendar days from the above date [March 20, 2006] that shows when the decision was mailed.”  (Emphasis added.)  Relator filed a request for reconsideration on April 20, 2006, which was 31 calendar days after the mailing of the ULJ’s decision.  The ULJ determined that the filing was untimely and dismissed the request for reconsideration.  This appeal follows.



            The first issue is whether the ULJ erred as a matter of law by dismissing relator’s request for reconsideration.  On review of a ULJ’s decision, this court may affirm, remand for further proceedings, or reverse or modify the decision.  Minn. Stat. § 268.105, subd. 7(d) (2006) (establishing the standard of review for ULJ decisions issued after June 25, 2005).  An agency’s decision to dismiss an appeal as untimely is a question of law that we review de novo.  Kennedy v. Am. Paper Recycling Corp., 714 N.W.2d 738, 739 (Minn. App. 2006) (citing Harms v. Oak Meadows, 619 N.W.2d 201, 202 (Minn. 2000) and Stottler v. Meyers Printing Co., 602 N.W.2d 916, 918 (Minn. App. 1999)). 

An administrative agency’s jurisdiction over a matter depends on the statute under which it operates, and agencies may not enlarge their powers beyond those contemplated by the legislature.  Peoples Natural Gas Co. v. Minn. Pub. Util. Comm’n, 369 N.W.2d 530, 534 (Minn. 1985).  To appeal a ULJ’s decision, a party must file a request for reconsideration “within 30 calendar days of the sending of [that] decision.”  Minn. Stat.  § 268.105, subd. 2(a) (Supp. 2005).  If the ULJ’s decision is sent by mail, the date of mailing commences the time period for reconsideration.  Accord Smith v. Masterson Pers., Inc., 483 N.W.2d 111, 112 (Minn. App. 1992) (“The date of mailing [of a department decision] commences the time for appeal.”).  If 30 days pass without a request for reconsideration, the decision of the ULJ becomes final.  Minn. Stat.                § 268.105, subd. 1(c) (Supp. 2005).

The statutory time limit for appealing a ULJ’s decision is firm and cannot be extended.  See Semanko v. Dep’t of Employment Servs., 309 Minn. 425, 430, 244 N.W.2d 663, 666 (1976) (holding that the time limit for appealing a ULJ’s decision is “absolute and unambiguous” and dismissing an appeal of a ULJ’s decision even though it was filed just one day after the statutory time limit expired); see also Kennedy, 714 N.W.2d at 739-40 (dismissing an appeal of a ULJ’s decision when the appeal was postmarked 31 days after the mailing of the decision). 

Here, the ULJ’s decision clearly stated that relator had to file a request for reconsideration within 30 calendar days of the date the decision was mailed.  The ULJ’s decision was mailed on March 20, 2006.  But relator filed her request for reconsideration on April 20, 2006, which was 31 days after the mailing of the ULJ’s decision. 

Relator argues that she should be excused from filing late because she spoke with two department employees, each of whom said that she could file her request after April 20, 2006.  Other than this representation by relator, nothing in the record substantiates her contention.  Furthermore, relator has provided no other excuse for late filing.  See King v. Univ. of Minn., 387 N.W.2d 675, 677 (Minn. App. 1986) (“In numerous instances, the courts in this jurisdiction have held that statutes designating the time for appeal from decisions of all levels of the Department should be strictly construed, regardless of mitigating circumstances.”), review denied (Minn. Aug. 13, 1986). 

Because relator filed her request for reconsideration after the 30-day statutory deadline, and because requests for reconsideration are analogous to appeals and, as such, the significance of deadlines and the consequences of missing such parallel deadlines should be treated the same, we conclude that the ULJ did not err as a matter of law in dismissing relator’s request for reconsideration as untimely.


The second issue is whether the ULJ erred as a matter of law or fact in determining that relator was discharged for employment misconduct.  Although our disposition of the first issue means that we do not have to address this second issue, we will review it in the interest of giving relator a full answer to her claims on appeal.[1]

An employee discharged for misconduct is disqualified from receiving unemployment benefits under Minn. Stat. § 268.095, subd. 4 (Supp. 2005).  Employee misconduct is defined as “any intentional, negligent, or indifferent conduct, on the job or off the job (1) that displays clearly a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that displays clearly a substantial lack of concern for the employment.”  Minn. Stat. § 268.095, subd. 6(a) (2004).  “[S]imple unsatisfactory conduct, a single incident that does not have a significant adverse impact on the employer, . . . [and] poor performance because of inability or incapacity . . . are not employment misconduct.”  Id. 

Determining whether certain conduct qualifies as employee misconduct is a question of law that this court reviews de novo.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  Employee conduct such as absenteeism or tardiness is considered misconduct.  See, e.g., Evenson v. Omnetic’s, 344 N.W.2d 881, 883 (Minn. App. 1984) (holding that repeated tardiness, particularly when combined with an employer’s warnings, is misconduct for the purposes of unemployment compensation).  An employee’s inadvertence or negligence is generally not considered disqualifying misconduct.  Swanson v. Columbia Transit Corp., 311 Minn. 538, 539-40, 248 N.W.2d 732, 733 (1976).  But an employee’s deliberate work avoidance and unnecessary delays or overall poor performance evidencing a disregard for the employer’s interests may constitute misconduct.  See Barstow v. Honeywell, Inc., 396 N.W.2d 714, 716-17 (Minn. App. 1986).

Once it has been determined that certain conduct qualifies as employee misconduct, determining whether an employee actually engaged in such conduct is a question of fact.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  This court views factual findings in the light most favorable to the ULJ’s decision and will not disturb factual findings if the evidence reasonably tends to sustain them.  Schmidgall, 644 N.W.2d at 804. 

Relator argues that she was discharged because her employer did not have sufficient work and not because of her misconduct.  She also contends that her performance was satisfactory.  But the ULJ found that relator “was discharged from her employment due to tardiness, unsatisfactory job performance, and coming into work with a hangover which required her to spend a considerable amount of time in the bathroom and thereby unable to perform her job duties.”  The evidence shows that relator was repeatedly tardy and that she received several warnings about tardiness.  The evidence also shows that relator reported to work with a hangover on multiple occasions, that she received warnings about this behavior, and that despite the employer’s warnings, the behavior persisted and negatively effected relator’s ability to perform the basic functions of her job.[2]  The evidence supports the ULJ’s factual findings, and we will not disturb them on appeal.

Finally, relator argues that she notified the department that she would not be able to participate in the March 20, 2006 hearing, and she implicitly argues that the ULJ failed to provide her with a fair trial as required by Minn. R. 3310.2921 (2005).  See Thompson v. County of Hennepin, 660 N.W.2d 157, 161 (Minn. App. 2003) (stating that “ULJs have a duty to reasonably assist pro se parties with the presentation of the evidence and the proper development of the record”).  But an unemployment “hearing may be rescheduled only once except in the case of an emergency.”  Minn. R. 3310.2908 (2005).  Here, the record indicates that the hearing had already been rescheduled several times.  Although relator stated that she needed to reschedule yet again because of her work at another job, she neither alleges nor shows that an emergency prevented her participation in the telephone hearing.  The record does not support relator’s claim that she was improperly denied the right to participate in a hearing.




[1] Another issue that we do not reach is whether we should decline to consider this appeal because relator failed to exhaust her administrative remedies by not properly seeking reconsideration by the ULJ.  SeeAmcon Corp. v. City of Eagan, 348 N.W.2d 66, 71 (Minn. 1984); Nw. Airlines, Inc. v. Metro. Airports Comm’n, 672 N.W.2d 379, 385 (Minn. App. 2003), review denied (Minn. Feb. 25, 2004).  These cases indicate that Minnesota courts generally require such exhaustion.  Because neither party raises this issue, we do not address it.



[2] “Conduct that was a direct result of the applicant’s chemical dependency is not employment misconduct unless the applicant was previously diagnosed chemically dependent or had treatment for chemical dependency, and since that diagnosis or treatment has failed to make consistent efforts to control the chemical dependency.”  Minn. Stat. § 268.095, subd. 6(b) (2004).  Based on this record, the issue of chemical dependency is not before us.