Ryan J. Wilson, Relator v. Harris Davis Rebar, Department of Employment and Economic Development

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0930
Ryan J. Wilson,
Relator,
vs.
Harris Davis Rebar,
Respondent,
Department of Employment and Economic Development,
Respondent.
Filed December 27, 2016
Affirmed
Reyes, Judge
Department of Employment and Economic Development
File No. 34399404-3
Shawn B. Reed, Maki & Overom, Ltd., Duluth, Minnesota (for relator)
Harris Davis Rebar, Bellevue, Nebraska (respondent employer)
Lee B. Nelson, Department of Employment and Economic Development, St. Paul,
Minnesota (for respondent Department)
Considered and decided by Reyes, Presiding Judge; Johnson, Judge; and T. Smith,
Judge.
UNPUBLISHED OPINION
REYES, Judge
Relator Ryan J. Wilson filed an administrative appeal after the Department of
Employment and Economic Development (DEED) determined that he is ineligible to
receive unemployment benefits because he quit his job. After relator did not answer his
phone when the unemployment law judge (ULJ) twice called him for a telephonic
hearing, the ULJ dismissed the appeal. Relator filed a request for reconsideration, stating
that he was having technical issues with his phone. The ULJ denied relator’s request.
We affirm.
FACTS
In February 2016, DEED determined that relator is ineligible to receive
unemployment benefits because he quit his job following a change in a condition of
employment that was not caused by his employer. Relator filed an administrative appeal,
and DEED sent him notice regarding a telephonic hearing for his appeal to be held on
March 29, 2016, at 10:45 a.m. The notice stated, “The [ULJ] will call you to participate
in this hearing. The telephone number we currently have listed for you is . . . . If this is
not correct, please log into your account . . . to make any changes.” The notice further
stated, “Please contact the Appeals Office immediately at the telephone numbers listed
below if you need to reschedule your hearing.”
At 10:48 a.m. on the hearing date, the ULJ called relator at the telephone number
listed in the notice. Relator did not answer, so the ULJ left a voicemail stating, “I’ll try to
call you back in the next five to ten minutes. If you’re not available, we will be going
ahead without your participation today.” The ULJ called relator a second time at 11:00
a.m. Relator again did not answer, and the ULJ left a second voicemail stating, “Because
I’ve not been able to get ahold of you, we are going to go ahead without your
participation today.” The ULJ issued an order dismissing relator’s appeal.
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Relator filed a request for reconsideration, stating:
I believe this decision was made based on my inability to
receive my hearing phone call. . . . On the date of my hearing
I was having technical issues with my phone and the call was
not able to come through as a result for some reason. I did
attempt several times to call from a land line but was
unsuccessful in getting through. I have since purchased a new
and reliable phone so this issue will not happen again.
Relator later submitted an additional written statement further clarifying why he did not
participate in the hearing:
On March 26th 2016, I checked myself into a mental health and
rehab facility in San Clement California. I was already
schedule[d] for my Minnesota unemployment hearing on
Tuesday March 28th 2016. My wife and I both spoke with the
staff at the facility and let them know that the court hearing was
very important and my cell phone would be called at exactly
10:45 (central time), which was 8:45 (Pacific time). We had
all the details squared away with the staff but the next day when
I did get to my phone, it was not working properly. It would
not take a charge from the charger and I missed the hearing
phone call. I did try to contact the number back but was unable
to get through. Thank you for [your] time[.]
The ULJ issued an order affirming the prior order of dismissal. The ULJ
determined that relator did not have good cause for missing the hearing because “[t]he
reasonable person, acting with due diligence, would ensure that they have a working
phone in order to participate in a scheduled telephone hearing.” Relator appeals.
DECISION
Relator argues that the ULJ abused his discretion in denying relator an additional
hearing following a request for reconsideration. We disagree.
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“A reviewing court accords deference to a ULJ’s decision not to hold an additional
hearing and will reverse that decision only for an abuse of discretion.” Skarhus v.
Davanni’s Inc., 721 N.W.2d 340, 345 (Minn. App. 2006) (citation omitted). If an
“appealing party fails to participate in the hearing, the [ULJ] has the discretion to
dismiss the appeal by summary decision.” Minn. Stat. § 268.105, subd. 1a(b) (2014).
“[I]f the party who failed to participate had good cause for failing to do so,” the ULJ
must set aside the decision and order that an additional evidentiary hearing be held.
Id., subd. 2(d) (2014). “Good cause” is defined as “a reason that would have
prevented a reasonable person acting with due diligence from participating in the
hearing.” Id.In his initial written statement, relator stated, “I was having technical issues with
my phone and the call was not able to come through as a result for some reason.”
Relator’s subsequent statement provided additional information and explained that he had
checked himself into a treatment center three days before the hearing; he had made
arrangements with staff to access his phone for the hearing; and he did not answer
because his phone “was not working properly” and “would not take a charge from the
charger.”1
Relator’s written statements provide minimal explanation regarding his failure to
participate in the hearing. Relator does not provide any details regarding his phone’s
1
Relator’s brief provides further explanation for why he did not answer his phone.
However, as conceded at oral argument, such details were not presented to the ULJ and,
therefore, “may not be reviewed as part of the record on appeal.” Appelhof v. Comm’r of
Jobs & Training, 450 N.W.2d 589, 591 (Minn. App. 1990) (citation omitted).
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prior ability to receive calls, charge, or function properly. Nor does relator offer an
explanation regarding why he did not provide an additional number for this hearing or
why he did not request access to his phone early enough to determine that it was charged
and working properly. Relator’s statements also fail to articulate why he did not
reschedule the hearing. And, although he states that he tried “to call from a land line but
was unsuccessful in getting through,” the record does not indicate what number he called,
when he called, or if he attempted to leave a message.
We also note the apparent inconsistencies between relator’s first statement, which
explained “the call was not able to come through . . . for some reason,” and his second
statement, which cited his phone’s inability to “take a charge.” Although the ULJ’s order
did not reference these seemingly conflicting explanations, such a discrepancy does not
support relator’s argument that he had a good cause reason for failing to participate in the
hearing.
Accordingly, based on the limited information provided by relator and the
deference we must accord the ULJ’s decision, we cannot say that the ULJ abused his
discretion in determining that relator did not have good cause for failing to participate in
the hearing. See Skarhus, 721 N.W.2d at 345 (affirming denial of additional hearing
where relator missed hearing because of work, did not say she had been denied leave
from work, and did not attempt to reschedule); Goodwin v. BPS Guard Servs., Inc., 524
N.W.2d 28, 30 (Minn. App. 1994) (same, under earlier version of statute).
Affirmed.
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