This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1717

 

Candy Manke,

Relator,

 

vs.

 

Wayne A. Brutger,

Respondent,

 

Commissioner of Employment and Economic Development,

Respondent.

 

Filed June 14, 2005

Affirmed

Gordon W. Shumaker, Judge

 

Department of Employment and Economic Development

File No. 11086 04

 

 

Candy J. Manke, 909 9th Avenue North, Foley, MN 56329-9136 (pro se relator)

 

Wayne A. Brutger, P.O. Box 1304, St. Cloud, MN 56302-1304 (respondent-employer)

 

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.

 

U N P U B L I S H E D   O P I N I O N

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.

FACTS

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

The decision of the commissioner’s representative[1] 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 (Minn. App. 1999).  The Minnesota Supreme Court has held that the statutory time for appeal is “absolute and unambiguous.”  Semanko v. Dep’t. of Employment Servs., 309 Minn. 425, 430, 244 N.W.2d 663, 666 (1976).  Further, “the time for appeal from decisions of all levels of the [d]epartment [of employment and economic development] should be strictly construed . . . .”  King v. Univ. of Minn., 387 N.W.2d 675, 677 (Minn. App. 1986), review denied (Minn. Aug. 13, 1986).  “An agency is deprived of jurisdiction to review its decision if a timely appeal is not filed as required by statute.”  In re Emmanuel Nursing Home, 411 N.W.2d 511, 516 (Minn. App. 1987), review denied (Minn. Oct. 13, 1987).

Under Minnesota law, the department’s determination of disqualification is considered final unless an appeal is filed by the applicant within 30 calendar days after the disqualification notice is mailed.  Minn. Stat. § 268.101, subds. 2(e) (disqualification), 3(d) (ineligibility) (2002).  The notice of disqualification is considered “filed” on the date it is postmarked.  Minn. Stat. § 268.035, subd. 17 (2002).  Finally, “[r]eceipt of the mailing is not determinative for purposes of the statute.”  Hart-Wilke v. Aetna Life Ins., 550 N.W.2d 310, 313 (Minn. App. 1996) (quotations omitted).

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 (Minn. App. 1986).  Manke did not appeal the determination until June 23, 2004.  This was not within the 30-day statutory deadline.  Therefore, the evidence supports the senior unemployment review judge’s decision that Manke’s appeal is time-barred.

Affirmed.