This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
Perry T. Megas,
A & M Business Interior Services, LLC,
Department of Employment and Economic Development,
Filed May 22, 2007
Department of Employment and Economic Development
File No. 5809 06
Perry T. Megas, 3734 Morgan Avenue North, Minneapolis, MN 55412 (pro se relator)
A & M Business Interior Services, LLC, 1300 Washington Avenue North, Minneapolis, MN 55411-3420 (respondent)
Lee B. Nelson, Linda A. Holmes, Department of Employment and Economic Development, First National Bank Building, 332 Minnesota Street, Suite E200, St. Paul, MN 55101-1351 (for respondent Department of Employment and Economic Development)
Considered and decided by Ross, Presiding Judge; Kalitowski, Judge; and Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
D E C I S I O N
An evidentiary hearing was held on May 4, 2006, without relator’s participation. The unemployment law judge (ULJ) found that relator quit, noting that Minn. Stat. § 268.095, subd. 2(a) (2004), provides that a “quit from employment occurs when the decision to end the employment was, at the time the employment ended, the employee’s.” The order concluded: “The evidence in this case shows that it was [relator’s] decision to end the employment.”
Relator filed a request for reconsideration in which he stated that the reason he did not participate in the evidentiary hearing was that he had been hospitalized for an asthma attack. The ULJ denied relator’s request, finding that relator did not show “good cause” for missing the hearing and concluding that an additional evidentiary hearing was not required under Minn. Stat. § 268.105, subd. 2(d) (Supp. 2005).
On appeal, relator
argues that the ULJ should not have denied his request for reconsideration
because he showed good cause for missing the hearing. A relator may challenge a ULJ’s decision by
filing a request for reconsideration under
If the involved applicant . . . who filed the request for reconsideration failed to participate in the evidentiary hearing . . . , an order setting aside the findings of fact and decision and directing that an additional evidentiary hearing be conducted must be issued if the party who failed to participate had good cause for failing to do so. In the notice of the request for reconsideration, the party who failed to participate shall be informed of the requirement, and provided the opportunity, to show good cause for failing to participate. If the unemployment law judge determines that good cause for failure to participate has not been shown, the unemployment law judge must state that in the order issued under paragraph (a).
. . . .
“Good cause” for purposes of this paragraph is a reason that would have prevented a reasonable person acting with due diligence from participating at the evidentiary hearing.
This court accords
deference to a ULJ’s decision and reviews a ULJ’s decision not to hold an
additional hearing under an abuse of discretion standard. Skarhus
v. Davanni’s Inc., 721 N.W.2d 340, 345 (
In the order denying relator’s request for reconsideration the ULJ concluded that relator did not show good cause for failing to participate in the hearing. In the order the ULJ states that relator
notes in his request for reconsideration that he had an extremely bad asthma attack and ended up being hospitalized overnight. However, [relator] does not request that the hearing be rescheduled. He did not contact the Legal Affairs unit before or after the May 4, 2006 hearing. [Relator] has not shown good cause for missing the hearing. A reasonable person acting through diligence would have made efforts to notify the Department to have the hearing rescheduled.
Thus, the ULJ’s determination that relator lacked “good cause” for his absence was based on (1) relator’s failure to contact the department before the hearing in order to reschedule; and (2) relator’s failure to contact the department after the hearing to reschedule. We conclude that this is not a sufficient basis for denial of a request for reconsideration.
above, the ULJ did not state in the order that he did not believe relator was
in the hospital or that relator should have produced proof of
hospitalization. Thus, the ULJ did not
reject relator’s claim that his hospitalization prevented him from
participating. Instead, the ULJ based
its decision to deny reconsideration on relator’s failure to call after the hearing. But the statute does not require that a
relator call the department after the hearing has been held. Rather, the statute provides that if a
relator had good cause for missing the hearing, the process relator must follow
is to file a request for reconsideration.
In its appellate
brief, respondent argues that relator’s letter to the ULJ, stating that he did
not participate in the hearing because he spent the night in the hospital, was
insufficient to “show” he had been hospitalized. Respondent asserts that relator “submitted
nothing to the court to substantiate this claim” of hospitalization and states
that if relator “provides to the court, in a reply brief for example, some
actual evidence that he was hospitalized, we do not object to the court’s
remanding the case for an additional evidentiary hearing.” But as noted above, the ULJ did not indicate
that a lack of documentation of relator’s hospitalization was the basis for the
decision. Moreover, this court does not
consider evidence that was not before the district court. Fabio
v. Bellomo, 489 N.W.2d 241, 246 (
If, as respondent argues in its brief, relator’s request for reconsideration was denied because he did not submit supporting evidence, relator should be provided an opportunity to provide evidence. We therefore remand this matter to the ULJ to conduct such proceedings as the ULJ deems appropriate to determine whether relator had good cause for failing to participate in the hearing and is entitled to an evidentiary hearing.