Opinion
A22-1178
03-01-2023
Allen Rossberg, Relator, v. Fairs Garden Center, Respondent, Department of Employment and Economic Development, Respondent.
Department of Employment and Economic Development
Considered and decided by Smith, Tracy M., Presiding Judge; Larkin, Judge; and Cleary, Judge.
ORDER OPINION
Michelle A. Larkin Judge
BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND BECAUSE:
1. Relator Allen Rossberg challenges an unemployment law judge's (ULJ) determination that he was ineligible for unemployment benefits because he quit his employment of over 20 years. He also challenges the ULJ's determination that he did not show good cause for failing to appear at a hearing before the ULJ, which was scheduled after his employer appealed respondent Minnesota Department of Employment and Economic Development's (DEED) initial determination that Rossberg was eligible for unemployment benefits. Rossberg contends that he failed to participate in the hearing "[d]ue to a mistake" with his phone number and that he "made many attempts to partake in the [hearing] and was not intentionally unavailable."
2. If a party who failed to participate in a hearing before a ULJ establishes "good cause" for that failure, the ULJ must order a new evidentiary hearing. Minn. Stat. § 268.105, subd. 2(d) (2022). Good cause is defined as "a reason that would have prevented a reasonable person acting with due diligence from participating in the hearing." Id. "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).
3. At the time of the April 25, 2022 hearing in this case, the ULJ called the two phone numbers that DEED had on file for Rossberg, which both had 612 area codes. One number was Rossberg's prior work number, which was no longer available to him. The ULJ called the other number and was informed that it was an incorrect number. During the hearing, the ULJ was informed that Rossberg had called the customer-service line, indicated that he wanted to participate in the hearing, and confirmed that the phone number with the 612 area code was his correct phone number. The ULJ called that number a second time and was once again told that it was an incorrect number. The hearing concluded without Rossberg's participation. Based on the testimony of Rossberg's employer, which the ULJ credited, the ULJ concluded that Rossberg was not entitled to unemployment benefits because he quit his employment, resulting in an overpayment of unemployment benefits in the amount of $4,356.
4. On April 26, 2022, Rossberg requested reconsideration, asserting that he called DEED twice to participate in the hearing and that DEED had the wrong area code for his number. In his request for reconsideration, Rossberg stated: "My new number is 763-XXX-XXXX not 612. I waited for 1 hour for a call and called 2 times to see if you were going to call me but you had the wrong number." The ULJ determined that Rossberg did not have good cause for failing to participate in the hearing. In rejecting Rossberg's request for reconsideration, the ULJ reasoned that when Rossberg called into the customer-service line, he confirmed the number on file with DEED was the correct phone number. The ULJ did not address Rossberg's assertion that he called a second time.
5. In his informal brief to this court, Rossberg explained that:
On the day of the hearing I waited for the phone call and never received any calls. I called in as I was told to do if there was no call. I called the phone number I was given and was told to wait a little longer. I still received no call and called in again. This time speaking with the phone representative. We realized they had the wrong phone number for me.612-[XXX-XXXX] is the number that the courts had on file. 763-[XXX-XXXX] is my actual phone number, the prefix was wrong and the second number that was on file was my work phone from [my employer]. Due to this mistake, it was recorded that I did not show for the trial and [that] they sided with [my employer] as his statements were taken under oath. (Emphasis added.)
6. The ULJ's initial decision does not mention that Rossberg called DEED during the hearing in an attempt to participate in the hearing, as he had been instructed to do if he did not receive a call from the ULJ. The ULJ's order of affirmation notes that at 8:32 a.m. on the day of the hearing, Rossberg contacted DEED asking why he had not received a phone call. But the order of affirmation does not mention or address Rossberg's claim that he called DEED a second time. On this record, we conclude that the ULJ did not adequately consider Rossberg's attempts to participate in the hearing. That failure constitutes an abuse of discretion. We therefore reverse and remand for a new hearing.
IT IS HEREBY ORDERED:
1. The ULJ's determination that Rossberg is ineligible for unemployment benefits is reversed, and this matter is remanded for a new hearing regarding Rossberg's eligibility for unemployment benefits.
2. Pursuant to Minn. R. Civ. App. P. 136.01, subd. 1(c), this order opinion is nonprecedential, except as law of the case, res judicata, or collateral estoppel.
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.