Andrea Cheney, Relator, vs. Rapid Recovery Inc., Respondent, Department of Employment and Economic Development, Respondent.
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This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2008). STATE OF MINNESOTA IN COURT OF APPEALS A09-1090 Andrea Cheney, Relator, vs. Rapid Recovery Inc., Respondent, Department of Employment and Economic Development, Respondent. Filed March 2, 2010 Affirmed Kalitowski, Judge Department of Employment and Economic Development File No. 22161886-3 Andrea Cheney, White Bear Lake, Minnesota (pro se relator) Rapid Recovery, St. Paul, Minnesota (respondent) Lee B. Nelson, Amy R. Lawler, Department of Employment and Economic Development, St. Paul, Minnesota (for respondent Department of Employment and Economic Development) Considered and decided by Stauber, Presiding Judge; Kalitowski, Judge; and Hudson, Judge. UNPUBLISHED OPINION KALITOWSKI, Judge Relator Andrea Cheney challenges the unemployment-law judge s dismissal of her appeal of her denial of unemployment benefits and denial of her request for reconsideration. Because relator failed to participate in the evidentiary hearing and did not show good cause for the failure to participate in her request for reconsideration, we affirm. DECISION We review an unemployment-law judge s (ULJ) decision to determine whether the relator s substantial rights were prejudiced because the findings, inferences, conclusion, or decision are affected by error of law or unsupported by substantial evidence in view of the entire record. Minn. Stat. § 268.105, subd. 7(d) (2008). The determination that an employee is disqualified or ineligible for unemployment benefits is a question of law on which appellate courts exercise independent judgment. Jenkins v. Am. Express Fin. Corp., 721 N.W.2d 286, 289 (Minn. 2006). But in the resolution of conflicting testimony or the assessment of credibility, we defer to the ULJ. Skarhus v. Davanni s Inc., 721 N.W.2d 340, 344 (Minn. App. 2006). A ULJ may dismiss an appeal if the appealing party fails to participate in the evidentiary hearing. Minn. Stat. § 268.105, subd. 1(d) (2008). A party who fails to participate is considered to have failed to exhaust available administrative remedies. Id. A relator can file a request for reconsideration to establish good cause for failing to participate in a hearing. Id. Good cause is defined as a reason that would have 2 prevented a reasonable person acting with due diligence from participating at the evidentiary hearing. Id. at subd. 2(d) (2008). The record supports the ULJ s conclusion that relator did not participate in her hearing. The hearing was scheduled for 8:15 a.m. The record indicates that relator was aware of the time and date of the hearing, and had received a notice instructing her to call the department if she did not get a call within ten minutes of the scheduled time. The record further indicates that (1) the ULJ called relator at 8:13 a.m. and at 8:34 a.m., and left messages, but relator did not answer her phone; (2) the ULJ dismissed relator s appeal for her failure to participate; and (3) in her request for reconsideration, relator failed to establish good cause for not participating in the hearing. In her appellate brief, relator argues the merits of her case but does not address why she failed to participate in the hearing. Because relator has presented no evidence that would support a finding of good cause for her failure to participate, the ULJ did not abuse her discretion in dismissing the appeal and denying relator s request for reconsideration. Affirmed. 3
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