                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2014).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A16-0442

                                 Ayode A. Ogunkola,
                                      Relator,

                                          vs.

                              Cirrus Design Corporation,
                                     Respondent,

               Department of Employment and Economic Development,
                                   Respondent.

                               Filed October 24, 2016
                                      Affirmed
                                 Rodenberg, Judge

               Department of Employment and Economic Development
                               File No. 34043421-3

Ayode A. Ogunkola, Hermantown, Minnesota (pro se relator)

Cirrus Design Corporation, Duluth, Minnesota (respondent)

Lee B. Nelson, St. Paul, Minnesota (for respondent department)

      Considered and decided by Smith, Tracy M., Presiding Judge; Larkin, Judge; and

Rodenberg, Judge.

                       UNPUBLISHED OPINION

RODENBERG, Judge

      Relator Ayode A. Ogunkola appeals from a decision by an unemployment-law

judge (ULJ) denying relator unemployment benefits after his discharge from employment

by Cirrus Design Corp. (Cirrus) for employment misconduct, and the ULJ’s
reconsideration order denying relator’s request for an additional evidentiary hearing.

Relator argues on appeal that the ULJ’s factual findings are incorrect and that the ULJ

erred in denying him an additional hearing. We affirm.

                                             FACTS

          Relator applied for unemployment benefits after Cirrus fired him.                The

Department of Employment and Economic Development (DEED) initially found that

relator was eligible for unemployment benefits. Cirrus appealed this decision, and DEED

sent notices of an evidentiary hearing scheduled for January 6, 2016 to both relator and

Cirrus.

          A Cirrus representative attended the hearing. Relator did not. At the hearing the

ULJ took testimony from the Cirrus representative, who testified that relator violated

Cirrus’ drug and alcohol policy on two occasions.             She also testified that relator

obstructed an alcohol test by leaving the clinic where additional testing was to be done,

without providing a sample for testing, and then returning approximately 2.5 hours later.

By the time relator returned and provided the sample, no alcohol was present in his

system. The ULJ concluded that relator was discharged for employment misconduct and

was therefore ineligible for unemployment benefits.

          Respondent requested an additional hearing, stating, “. . . I misread the date. I was

at a job interview at the time [of the hearing] but later called back.” The ULJ denied

relator’s request for an additional hearing, stating that relator did not show good cause for

missing the hearing because he “did not act with due diligence.”

          This certiorari appeal followed.



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                                     DECISION

Factual Findings in Initial Hearing

       Relator first challenges the ULJ’s factual findings, arguing they were based on

false information provided by Cirrus.

       We review a ULJ’s factual findings in the light most favorable to the decision, and

give deference to the credibility determinations made by ULJs. Skarhus v. Davanni’s

Inc., 721 N.W.2d 340, 344 (Minn. App. 2006). We will not disturb a ULJ’s factual

findings “when the evidence substantially sustains them.” Id. Whether an employee

commits a particular act is a factual finding. Icenhower v. Total Auto., Inc., 845 N.W.2d

849, 855 (Minn. App. 2014), review denied (Minn. July 15, 2014).

       Here, the ULJ’s findings are tethered to the testimony at the initial hearing.

Relator provided no evidence and did not attend that hearing. Relator’s brief argues

additional facts not produced at the hearing. But we do not review evidence on appeal

that was not received below. Appelhof v. Comm’r of Jobs & Training, 450 N.W.2d 589,

591 (Minn. App. 1990). We therefore do not consider relator’s additional evidence when

reviewing the ULJ’s factual findings. The only evidence of record supports the ULJ’s

findings, and those findings support the employment-misconduct determination.

       Because the record supports the ULJ’s factual findings, the relator’s challenge to

the findings fails.

Denial of an Additional Evidentiary Hearing

       Relator next argues that he should have been afforded an additional hearing. He

explains that he missed his initial hearing because he misread the notice of the hearing

and was at a job interview on the day it was held.
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       When reviewing a ULJ’s decision on reconsideration, we give “deference to a

ULJ’s decision not to hold an additional hearing and will reverse that decision only for an

abuse of discretion.” Skarhus, 721 N.W.2d at 345.

       A party who missed an initial hearing may request the ULJ set aside the decision

and order an additional hearing. Minn. Stat. § 268.105, subd. 2(d) (2014). The ULJ must

grant this request if the party shows “good cause” for failing to attend the initial hearing.

Id. “Good cause” is “a reason that would have prevented a reasonable person acting with

due diligence from participating in the hearing.” Id. Failure to attend a hearing because

it conflicted with a work schedule is not generally “good cause” for missing a hearing.

Skarhus, 721 N.W.2d at 345 (holding that a relator did not have “good cause” to miss a

hearing due to a scheduled work conflict, when he neither attempted to reschedule the

hearing nor demonstrated that a request for time off work to attend the hearing was

denied). Forgetting a hearing date is not “good cause” for missing a hearing. Fay v.

Dep’t of Emp’t & Econ. Dev., 860 N.W.2d 385, 389-90 (Minn. App. 2015).

       In his request for a new hearing, relator explained his absence from the initial

hearing as follows: “. . . I misread the date. I was at a job interview at the time but later

called back.” The ULJ acted within her discretion in concluding that these reasons fall

short of “good cause” for relator having failed to attend the hearing.

       Affirmed.




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