Opinion
No. A03-1487.
Filed June 15, 2004.
Appeal from the Department of Employment and Economic Development, File No. 8288 03.
Kevin Reuther, Law Office of the Legal Aid Society of Minneapolis, (for relator).
American Building Maintenance Corp., c/o Employers Unity Inc., (respondent employer).
Lee B. Nelson, Linda A. Holmes, Department of Employment and Economic Development, (for respondent commissioner).
Considered and decided by Schumacher, Presiding Judge; Stoneburner, Judge; and Hudson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
Relator challenges the commissioner's representative's dismissal of her appeal as untimely. We affirm.
FACTS
Relator Adar Oble is a Somali immigrant who has lived in the United States for 10 years. Prior to coming to the United States, she lived in Kenya for three years. Her educational background consists of three years of elementary school in Somalia and less than one year of English-as-a-second-language class in the United States.
Relator applied for unemployment benefits after she was discharged from her job with American Building Maintenance. She was able to read and answer in English many of the questions on the Department of Employment and Economic Development's application for benefits and questionnaire, but she needed assistance to complete the forms, which were returned to her once for corrections.
A department adjudicator determined that relator is disqualified from receiving unemployment benefits because she was discharged for misconduct. The department mailed a determination of disqualification to relator on April 8, 2003, and it was received by her shortly thereafter. After the 30-day appeal period had expired, relator met with the legal aid staff who submitted an appeal on her behalf on May 22, 2003, two weeks after the 30-day filing period had expired. The letter of appeal explained that although the appeal may appear untimely, the appeal time had not expired because relator did not receive meaningful and effective notice of the determination and appeal rights, and refusing her appeal would violate due process.
The department granted a hearing on the issue of whether relator's appeal was timely. Relator was assisted by an interpreter at the hearing. She testified that she reads and understands some English and understood from the notice that benefits had been denied. She testified that when she saw the determination she wanted somebody to explain it to her and tell her why she could not get benefits. Relator testified that she saw the date concerning time for appeal but did not understand the "legal circumstances."
The ULJ affirmed the determination that relator's appeal was untimely on the grounds that the time limits for filing appeals are clear, unambiguous, and absolute. The ULJ did not address relator's argument that her appeal was timely due to deficiencies in the notice. Relator appealed to the commissioner's representative.
The commisisoner's representative held that the appeal was untimely and that the department therefore lacked jurisdiction to hear the appeal. The decision was based on the commissioner's representative's findings that relator "reads and understands English," she read the determination when she received it, "and knew she had been disqualified from benefits and saw the appeal date. She understood the determination and the consequences." The commissioner's representative further explained that the evidence demonstrates that relator had submitted English application forms to the department within required timeframes, and her English comprehension was further demonstrated by the fact that she responded directly in English to a question at the hearing about her educational level. This appeal by writ of certiorari followed.
This court granted relator's motion to submit results of a post-hearing test of relator's English proficiency, showing that she reads English at or below a first-grade reading level, as an offer of proof of evidence that relator would submit if a remand is granted.
DECISION
On appeal, a reviewing court must examine the decision of the commissioner's representative, rather than that of the unemployment law judge. Kalberg v. Park Recreation Bd., 563 N.W.2d 275, 276 (Minn. App. 1997). Decisions of the commissioner's representative are accorded "particular deference." Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995). The question of whether the commissioner's representative erred in dismissing an appeal for lack of jurisdiction is a question of law reviewed de novo. Stottler v. Myers Printing Co., 602 N.W.2d 916, 918 (Minn. App. 1999). Constitutional claims also present legal questions reviewed de novo. Modrow v. JP Foodservice, Inc., 656 N.W.2d 389, 393 (Minn. 2003). But "we review the commissioner's factual findings in the light most favorable to the commissioner's decision and will not disturb them as long as there is evidence that reasonably tends to sustain those findings." Schmidgall v. FilmTec Corp, 644 N.W.2d 801, 804 (Minn. 2002). If there is any evidence reasonably tending to sustain the finding, it will not be disturbed. Markel v. City of Circle Pines, 479 N.W.2d 382, 383-84 (Minn. 1992).
Relator argues that the commissioner's representative erred as a matter of law in dismissing her appeal as untimely. She claims that the appeal cannot be considered untimely because she was denied meaningful and effective notice of the determination and her appeal rights.
Unemployment benefits are an entitlement, protected by procedural due process requirements. Schulte v. Transportation Unlimited, Inc., 354 N.W.2d 830, 832 (Minn. 1984). Relator argues that due process was not satisfied because the notice provided was not adequate under the circumstances. See Bliek v. Palmer, 102 F.3d 1472, 1475 (8th Cir. 1997) (stating that the need for adequate notice is settled law). Relator cites United States Supreme Court cases stating that notice must be reasonably calculated to inform the individual being notified of the action and afford them an opportunity to respond. See Mullane v. Cent. Hanover Bank Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657 (1950) (stating that the fundamental purpose of notice is to apprise interested parties of the pendency of the action, and that notice should reasonably convey the required information.); see also Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600 (1972) ("due process . . . calls for such procedural protection as the particular situation demands"). Relator believes these cases require that the Department, at a minimum, include a language block with mailings of determinations and notice of appeal rights.
A language block is a notice, currently in six languages including Somali, used by the Department after an appeal is filed to notify the recipient that the information in an English-language document is important and time-sensitive and that the recipient should seek assistance, if necessary, in understanding the document.
Minnesota appellate courts have not addressed the issue of whether English-only notice satisfies due process, but many other courts have rejected the claim that a due process violation results from providing official notices in English to a non-English speaking person. See Soberal-Perez v. Heckler, 717 F.2d 36, 43 (2nd Cir. 1983) ("A rule placing the burden of diligence and further inquiry on the part of a non-English speaking individual served in this country with a notice in English does not violate any principle of due process."); see also Carmona v. Sheffield, 475 F.2d 738, 739 (9th Cir. 1973) (notices related to denials of unemployment benefits sent in English to non-English speaking applicants did not violate due process); Alfonso v. Bd. of Review, Dep't of Labor and Industry, 444 A.2d 1075, 1077-78 (N.J. 1981) (notices of determination sent in English to non-English speaking applicants did not violate due process).
Relator points to a single case from the New Jersey Supreme Court that has held that "English-only notices sent to migrant farm workers in Puerto Rico [are not] reasonably calculated to provide those persons with adequate notice." Rivera v. Bd. of Review, 606 A.2d 1087, 1092 (N.J. 1992). In that case, an applicant was denied a hearing on the merits because he failed to appeal within the limitations period. Id. at 1088-89. But the court in that case limited the decision to the specific factual background involving the peculiar circumstances of migrant workers located in Puerto Rico. Id. at 1092. Specifically, the decision turned on the fact that the very brief seven-day appeal period had expired by the time the notice reached the applicant, and the applicant did not read or write any language. Id. at 1088, 1092. He promptly requested that his daughter translate the document and learned that he had missed his chance to appeal. Id. at 1088.
Respondent argues that relator is in a very different position because the appeal period of 30 days in this case is significantly longer than in Rivera, relator did not act to find out more about her appeal rights until more than a month after receiving the determination, and most importantly, relator reads and understands English. Relator admits that she understood that benefits were denied and respondent argues that had she acted promptly to obtain translation of any parts of the document she did not understand, she would have had ample time to file her appeal. Respondent asserts that the statute is clear, and the caselaw is unanimous, that the running of the appeal period begins with mailing, and not at the time a recipient became aware of the contents of the determination. See Minn. Stat. § 268.101, subd. 2(e) (2002). We agree.
There is evidence in the record to support the commissioner's representative's finding that relator understood from the determination that her application for benefits had been denied, and she saw the date concerning appeal. The record also supports the findings that she was able to timely fill out the English application for benefits in English and could understand and answer a question at the hearing without the assistance of the interpreter. Given our limited scope of review in these cases, we conclude that the commissioner's representative's findings should not be disturbed and that the findings support the implied conclusion that relator received adequate notice that satisfies due process. The findings therefore support the commissioner's representative's conclusion that relator's appeal was untimely.
Relator urged this court to consider the post-hearing testing of relator's English proficiency, arguing that relator was unaware that English proficiency would be an issue at the hearing. But relator's entire argument on timeliness rested on her claim that she was unable to understand the determination, a claim that the evidence presented at the hearing did not fully support. We decline to consider the test result in connection with this appeal, but note that even if we accept the assertion that relator reads English at or below a first-grade reading level, the evidence is still clear that she understood from reading the determination notice that she had been denied the benefits she applied for, but failed to obtain any assistance regarding what she did not understand for more than 30 days. Reading at a first-grade level does not imply that an adult reader would not understand the importance of getting assistance with a document she recognized as important.
Untimely notice of appeal deprived the department of jurisdiction over this appeal. See Minn. Stat. § 268.105, subd. 2(a) (2002) (allowing appeal of the department's determination to the commissioner within 30 days); Semanko v. Dep't of Employment Servs., 309 Minn. 425, 244 N.W.2d 663, 666 (1976) (upholding dismissal of appeal filed one day after applicable appeal period expired and stating that statutory time period for appeal was "absolute and unambiguous"); see also King v. Univ. of Minn., 387 N.W.2d 675, 676-77 (Minn. App. 1986) (applying predecessor statute to deprive this court of jurisdiction where appeal from a decision by the Commissioner's representative was not taken within 30 days).
Under the facts of this case, we decline to reach appellant's arguments that the department's failure to include a language block with the notice of determination violated federal regulations and federal and state human rights statutes, and that the appropriate remedy for such violations is to hold that relator's appeal was timely.
But nothing in this opinion is meant to discourage the department from providing a language block, already in use by the department once an appeal is perfected, to recipients of determination notices.