This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C4-96-176

Thomas J. Klein,
Relator,

vs.

Search Resources,
Respondent,

Commissioner of Economic Security,
Respondent.

Filed July 23, 1996
Reversed
Parker, Judge
Concurring Specially, Randall, Judge

Department of Economic Security
File No. 7829UC95

Roger S. Haydock, William Mitchell Law Clinic, 875 Summit Avenue, St. Paul, MN 55105 (for relator)

Search Resources, 4756 Banning Avenue, #200, White Bear Lake, MN 55110

Kent E. Todd, Minnesota Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner)

Considered and decided by Parker, Presiding Judge, Randall, Judge, and Schultz, Judge.*

U N P U B L I S H E D O P I N I O N

PARKER, Judge

Relator Thomas Klein challenges the decision of the Commissioner's representative that respondent Search Resources, Inc., filed a timely appeal, thereby making a determination on the merits proper. We reverse.

D E C I S I O N

On appeal, this court "must review the decision of the Commissioner's representative, rather than that of the referee." Weaver v. Minnesota Valley Lab., 470 N.W.2d 131, 133 (Minn. App. 1991). Reviewing courts are not bound by the Commissioner's representative's conclusions of law. Ress v. Abbott Northwestern Hosp., 448 N.W.2d 519, 523 (Minn. 1989). The findings of the Commissioner's representative must "be viewed in the light most favorable to the decision, and if there is evidence reasonably tending to sustain them, they will not be disturbed." White v. Metropolitan Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983).

1. Klein argues that the evidence on the record does not support the decision of the Commissioner's representative that Search Resources filed a timely appeal. He contends that the testimony of Search Resources' attorney, Ms. Brenny, was insufficient to prove that the letter of appeal was mailed. He claims that Ms. Brenny's statement that she placed the letter of appeal in the outgoing mail tray at her office is inadequate to prove mailing under the statutory guidelines. Klein argues that Minnesota courts have consistently held that statutory guidelines for timeliness are to be strictly construed. He contends that Search Resources's failure to appeal made the initial determination final, precluding further review of his claim by the Commissioner's representative.

A determination * * * shall be final unless an appeal therefrom is filed by a claimant or employer within 15 days after the mailing of the notice * * *.

Minn. Stat. ' 268.10, subd. 2(3) (1994).

"Filing" means the delivery of any document to the commissioner or any of the commissioner's agents or representatives, or the depositing of the same in the United States mail properly addressed to the department with postage prepaid thereon * * *.

Minn. Stat. ' 268.04, subd. 15 (1994).  Minnesota law does not provide for extensions or exceptions to the 15-day appeal period. Cole v. Holiday Inns, 347 N.W.2d 72, 73 (Minn. App. 1984). [1] The time limit set for appeal is clear and unambiguous. Cf. Semanko v. Department of Employment Servs., 309 Minn. 425, 430, 244 N.W.2d 663, 666 (1976).

Concluding that the reemployment judge's decision was erroneous, the Commissioner's representative found that "the employer did, in fact, mail a letter of appeal in a timely manner." He then concluded that there was jurisdiction to hear and decide the case on the merits.

We do not believe that the finding of the Commissioner's representative that Search Resources' appeal was timely filed is supported by substantial evidence. Ms. Brenny testified as follows:

Q: Okay, and that letter is dated, it shows the date of August 1, 1995. Do you have--now you signed it. Did you mail it out, also, do you recall?

A: Yes, I did.

Q: Do you recall when you mailed it?

A: Actually, I put it in our mail tray and the person who leaves at 5:00 weekdays mailed the letter at that time.

Q: At five o'clock?

A: That's the time the second mailing goes out and the day, first ones goes out with the post mailing around noon, and I'm not, I'm not, I don't know when it actually went out of the office.

We conclude that reliance on this testimony, without more, is insufficient to support a determination that the letter was mailed. It must be borne in mind that the first, purported, appeal was never received and that mailed on August 29 was admittedly untimely. We note there is no testimony from the person responsible for handling the outgoing mail at Search Resources to verify the mailing. Absent evidence or testimony of the "connecting step" between Ms. Brenny's outgoing mail tray and a U.S. mail depository, we cannot assume that the letter was mailed. The Commissioner's representative was without jurisdiction to consider any further issues in this matter, and that decision is vacated.

Reversed.

RANDALL, Judge (concurring specially).

I concur in the result reached by the majority relative to timeliness, but I write separately to address the issue of "suitable work."

The Commissioner's representative found both that respondent had filed a timely appeal and that Klein had also refused an offer of suitable work without good cause. I conclude the Commissioner's representative, although in error on the timeliness of the appeal, correctly determined that Klein, as a matter of law, refused an offer of suitable work without cause.

The record shows that Klein had been employed by respondent, a temporary worker locator. Respondent found Klein a job at $8 an hour, which he accepted, and he was later raised to $9 an hour. When that job was over, respondent found Klein another temporary job paying $8 an hour. Klein argues that he did not have to accept a lower-paying job. He also argues that this new job was "unsuitable" for his talents, and he was thinking of going back to school. Respondent, the Commissioner of Economic Security, argues succinctly that the only reason Klein turned down the second offer is that it paid $8 an hour rather than $9, and that if it would have paid $9 an hour, Klein would have taken the job. The record supports the Commissioner's terse argument. The record indicates that Klein said exactly that.

The Commissioner found that the mere fact that the job paid $1 an hour less than Klein's previous position was not determinative and concluded that fact alone did not make the position unsuitable. I agree. The Commissioner concluded that Klein could refuse any job he wanted, but that did not mean he could both refuse it and continue to receive reemployment compensation at the expense of taxpayers and employers. I agree.

The issue is not whether Klein had to take a job for $8 an hour. Klein, like any worker, is entitled to hold out for $8, or $12, or $20, or $50 an hour, or not work at all. The issue is at what point do the employer and the taxpayers have to step in and subsidize through reemployment insurance someone who is offered a job, but refuses to work.

It is clear that when a person has legally qualified for reemployment compensation, he does not lose that qualification every time "any old job" is held out as available. Hendrickson v. Northfield Cleaners, 295 N.W.2d 384, 387 (Minn. 1980) (employee need not accept offer of reemployment where it is not reasonably suited to her qualifications); Henry v. Dolphin Temp. Help Services, 386 N.W.2d 277, 281 (Minn. App. 1986) (temporary job offer may be unsuitable in light of employee's circumstances and past history of employment).

It is also true that there are some cases indicating that if you are laid off from a good paying job through no fault of your own, your right to reemployment insurance does not automatically terminate when you are offered a position at the minimum wage flipping hamburgers. Wood v. Menard, Inc., 490 N.W.2d 441, 443 (Minn. App. 1992) ("Generally, a substantial pay reduction or an unreasonable change in terms of employment gives an employee good cause to quit."). Both parties agree Klein went from temporary work at $8 an hour to temporary work at $9 an hour and then was offered temporary work at $8 an hour. Now Klein considers working for $8 an hour "unsuitable." The state's reemployment insurance fund set up at taxpayer's expense was just not meant to subsidize someone who takes a temporary job at $8 an hour, works up to $9 an hour, and then when that job is legitimately over, refuses to take another temporary job at his previous starting salary of $8 an hour.

Reemployment insurance is intended to give relief to workers who are unemployed through no fault of their own (and a refusal of suitable work puts you at fault). Minn. Stat. ' 268.03 (1994); see Sparrow v. Independent Sch. Dist. 272, 534 N.W.2d 551, 553 (Minn. App. 1995). This is not one of those cases.

I concur in the result reached by the majority, but on the unaddressed issue, I would affirm the Commissioner.


Footnotes

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, ' 10.

[1] The appellate court may not extend or limit the time for filing the notice of appeal or the time prescribed by law for securing review of a decision or an order of a court or an administrative agency, board, commission or officer, except as specifically authorized by law. Minn. R. Civ. App. P. 126.02.