Danielle F. Olson, Relator, vs. TBI, Respondent, Department of Employment and Economic Development, Respondent.

Danielle F. Olson, Relator, vs. TBI, Respondent, Department of Employment and Economic Development, Respondent. A04-2262, Court of Appeals Unpublished, August 30, 2005.

This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-2262

 

Danielle F. Olson,

Relator,

 

vs.

 

TBI,

Respondent,

 

Department of Employment and Economic Development,

Respondent.

 

Filed August 30, 2005

Affirmed

Gordon W. Shumaker, Judge

 

Department of Employment and Economic Development

File No. 14337 04

 

 

Danielle F. Olson, 930 N. 89th Avenue West, Apt. B1, Duluth, MN 55808 (pro se relator)

 

TBI Residential & Community Services, Inc., Attn: Shawn Neumann, 1731 West Superior Street, Duluth, MN 55806-2136 (respondent-employer)

 

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)

 

            Considered and decided by Shumaker, Presiding Judge; Willis, Judge; and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N

GORDON W. SHUMAKER, Judge

Relator appeals from the decision of the senior unemployment review judge dismissing her appeal as untimely and challenges the decision that she quit without good cause and was disqualified from receiving unemployment benefits, arguing that she had to resign because she was sexually assaulted by a co-worker.  Because her appeal was untimely, we affirm.

FACTS

Relator Danielle Olson quit her employment with TBI Residential and Community Services on June 3, 2004, and filed an application for unemployment benefits.  Relator quit her employment because she did not feel safe after an incident with a co-worker.  Specifically, relator alleges that she was sexually assaulted at work by a co-worker who snapped her bra strap after she mentioned a sunburn she received while tanning.  The unemployment law judge (ULJ) determined that relator was disqualified from receiving unemployment benefits because the "single incident by the co-worker was inappropriate but would not make the average, reasonable person quit and be unemployed rather than remaining in the employment."  

The notice informing relator that she was disqualified from receiving unemployment benefits was mailed on July 9, 2004.  The notice contained a section informing relator how she could appeal the determination and the time period in which she had to file the appeal.  Relator filed her appeal on September 1, 2004, 54 days after the mailing date, and a hearing was held on October 4, 2004.  Relator admits that she received the notice of disqualification and stated that the reason her appeal was delayed was because she was experiencing stress.   

On October 12, 2004, the ULJ dismissed relator's appeal because it was filed late, and affirmed the July 9, 2004 determination of disqualification.   Relator appealed this decision on October 15, 2004.  On October 26, 2004, the senior unemployment review judge (SURJ) affirmed the dismissal.  This certiorari appeal followed.

D E C I S I O N

On certiorari appeal, a reviewing court must examine the decision of the commissioner's representative[1],  rather than that of the unemployment law judge.  Kalberg v. Park & Recreation Bd., 563 N.W.2d 275, 276 (Minn. App. 1997).  And decisions of the commissioner's representative are accorded "particular deference."  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).

            The decision to dismiss an appeal as untimely is a question of law that this court reviews de novo.  Stottler v. Meyers Printing Co., 602 N.W.2d 916, 918 (Minn. App. 1999).  Statutory deadlines for appeal must be strictly construed.  King v. Univ. of Minn., 387 N.W.2d 675, 677 (Minn. App. 1986), review denied (Minn. Aug. 13, 1986).  "A determination of disqualification or a determination of nondisqualification shall be final unless an appeal is filed by the applicant or notified employer within 30 calendar days after sending."  Minn. Stat. § 268.101, subd. 2(e) (2004).  

            The determination of disqualification was mailed to relator on July 9, 2004.  The notice contained information on how to appeal the determination and specifically stated that "this determination will become final unless an appeal is filed within 30 calendar days from the ‘mailing date' shown on the first page."  Relator appealed the determination of disqualification by letter dated September 1, 2004.  This was 54 days after the mailing date of July 9, 2004. 

            Relator failed to comply with the statutory requirement of appealing a disqualification determination within 30 days after the mailing date.  The statute and notice included in her disqualification determination clearly state that if a determination is not appealed within 30 days, it becomes final.  Relator acknowledged that she received the notice and stated that the reason she did not appeal within the mandated time period was because she was stressed.  Relator failed to file a timely appeal, and, thus, the determination that she is disqualified from receiving unemployment benefits is final.  We affirm the determination of the SURJ.

            Affirmed.

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

[1]Prior to the amendment of the unemployment-benefits statutes in 2003, the commissioner's representative reviewed the decisions of the ULJ.  The amendment created the new position of SURJ, who acts in a similar capacity as the commissioner's representative under the previous schema.  Minn. Stat. § 268.105, subd. 2 (2004); 2004 Minn. Laws ch. 183, § 71.  Therefore, similar standards of review apply to this court's review of a SURJ's decision.