Opinion
A21-1039
03-28-2022
Mamadou Cellou Diallo, Relator, v. RiverSource Distributors, Inc., Respondent, Department of Employment and Economic Development, Respondent.
Department of Employment and Economic Development File No. 44150189-3
Considered and decided by Frisch, Presiding Judge; Gaïtas, Judge; and Smith, John, Judge.
ORDER OPINION
John Smith Judge
BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND BECAUSE:
1. Relator Mamadou Cellou Diallo challenges the unemployment-law judge's (ULJ) decision on reconsideration that he is not entitled to backdate his unemployment benefits further than one calendar week. We may reverse or modify a ULJ's decision only if we determine "the findings, inferences, conclusions, or decision are . . . affected by an error of law, unsupported by substantial evidence, or arbitrary and capricious." Yusuf v. Masterson Personnel, Inc., 880 N.W.2d 600, 603 (Minn.App. 2016); see also Minn. Stat. § 268.105, subd. 7(d) (2020). We review factual findings "in the light most favorable to the decision" and "will affirm so long as substantial evidence supports the ULJ's findings." Yusuf, 880 N.W.2d at 603 (quotation omitted).
2. Diallo voluntarily terminated his employment in June 2020. He first attempted to apply for unemployment benefits on November 24, 2020. He explained at his evidentiary hearing that the delay was due to his belief that he would not be eligible for benefits.
3. On November 25, 2020, he requested to backdate his benefits to June 14, 2020. An applicant for unemployment benefits is entitled to backdate their benefits account for "one calendar week . . . if the applicant requests the backdating within seven calendar days of the date the application is filed." Minn. Stat. § 268.07, subd. 3b(a) (2020). Backdating beyond one calendar week is permitted only if the "individual attempted to file an application for unemployment benefits, but was prevented from filing an application by the department." Id.
4. The ULJ determined in March 2021 following an evidentiary hearing that Diallo was not eligible for backdating beyond one calendar week because respondent Department of Employment and Economic Development (DEED) "did not prevent Diallo from applying for unemployment benefits prior to November 24, 2020." Diallo requested reconsideration, and in April the ULJ affirmed that its March decision was "factually and legally correct."
5. On appeal to this court, Diallo contends that Emergency Executive Order No. 20-05 suspended strict compliance with the unemployment statutes and that his benefits must be backdated because he substantially complied with the backdating statute. See Emerg. Exec. Ord. No. 20-05, Providing Immediate Relief to Employers and Unemployed Workers During the COVID-19 Peacetime Emergency (Mar. 16, 2020) ("Effective immediately, strict compliance with . . . Minnesota Unemployment Insurance Law is suspended."); In re Murack, 957 N.W.2d 124, 130 (Minn.App. 2021) ("In the absence of strict compliance with a statutory provision, there must still be a showing of at least substantial compliance." (Quotation omitted)).
6. Our inspection of the record reveals that Diallo has raised these issues for the first time on appeal. His only argument during his evidentiary hearing and in his request for reconsideration was that he was unaware he could be eligible for unemployment benefits. Because he did not make arguments relating to substantial compliance in front of the ULJ, these arguments are forfeited on appeal. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) ("A reviewing court must generally consider only those issues that the record shows were presented and considered" by the fact-finder "in deciding the matter before it." (quotation omitted)); see also Peterson v. Ne. Bank-Minneapolis, 805 N.W.2d 878, 883 (Minn.App. 2011) (stating that an issue "not raised before the ULJ" is "not properly before this court on review" and declining to consider it).
7. Even if we were to consider Diallo's arguments, they would be unavailing because he did not substantially comply with the unemployment statutes. Substantial compliance is defined as when an applicant "has a reasonable explanation for failing to strictly comply, has taken steps to comply with the statute, and has generally complied with the statute's purpose." Murack, 957 N.W.2d at 130. First, Diallo's explanations for his failure to strictly comply-that he was unaware of his potential eligibility and that his mental health prevented him from conducting the necessary research-are not reasonable. He reports being encouraged to apply for benefits well before he did so, and he did not present any evidence regarding his mental state to the ULJ. See Thiele, 425 N.W.2d at 583 (stating a reviewing court "may not consider matters not produced and received in evidence below"); see also Icenhower v. Total Auto., Inc., 845 N.W.2d 849, 857 (Minn.App. 2014) (declining to consider an argument on appeal premised on documents not presented to the ULJ), rev. denied (Minn. July 15, 2014). Second, Diallo took no steps to comply with the statute-namely, to apply for benefits-until November 2020 even though he terminated his employment in June. Accordingly, because he did not attempt to apply for benefits until November, has no reasonable explanation for the delay, and DEED did not prevent him from applying earlier, Diallo cannot be said to have "generally complied with the statute's purpose" of compensating applicants who have been "prevented from filing an application by the department" through the backdating of their account. Murack, 957 N.W.2d at 130; Minn. Stat. § 268.07, subd. 3b(a).
8. Lastly, our inspection of the record revealed that the ULJ's decision is supported by substantial evidence. The ULJ determined Diallo was only eligible for backdated benefits to November 15, 2020. An applicant is entitled to one calendar week of backdated benefits upon request. Minn. Stat. § 268.07, subd. 3b(a). It is uncontroverted that Diallo did not first attempt to file an application until November 24, 2020, and requested backdating the next day. He is thus entitled to one week of backdated benefits. An applicant is entitled to greater than one week of backdated benefits only if the applicant "was prevented from filing an application by the department." Id. There is no evidence in the record that Diallo's failure to apply for benefits sooner may be attributed to DEED. Accordingly, substantial evidence in the record supports the ULJ's decision that Diallo is not entitled to backdate his benefits further than November 15, 2020.
IT IS HEREBY ORDERED:
1. The ULJ's decision is affirmed.
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.