                                STATE OF MINNESOTA
                                IN COURT OF APPEALS
                                      A14-1487

                                   Patrick Hammer Fay,
                                          Relator,

                                            vs.

                 Department of Employment and Economic Development,
                                     Respondent.

                                   Filed March 2, 2015
                                         Affirmed
                                   Cleary, Chief Judge

                  Department of Employment and Economic Development
                                  File No. 32669919-3


Patrick Hammer Fay, Woodbury, Minnesota (pro se relator)

Lee B. Nelson, Department of Employment and Economic Development, St. Paul,
Minnesota (for respondent)


         Considered and decided by Cleary, Chief Judge; Bjorkman, Judge; and Reyes,

Judge.

                                     SYLLABUS

         “Good cause” for failing to participate in reemployment assistance services under

Minn. Stat. § 268.085, subd. 1(7) (2014), is defined as a reason that would have

prevented a reasonable person acting with due diligence from participating in those

services.
                                      OPINION

CLEARY, Chief Judge

       Relator Patrick Fay was eligible for unemployment benefits but missed a

reemployment assistance services meeting.        Respondent Minnesota Department of

Employment and Economic Development (DEED) determined that relator was ineligible

for unemployment benefits for the week that he missed the meeting because he failed,

without good cause, to attend. Relator filed an online appeal and an unemployment law

judge (ULJ) conducted an evidentiary hearing. The ULJ found that relator did not have

good cause for missing the meeting and was ineligible for unemployment benefits for the

relevant week. Relator requested a rehearing and the ULJ affirmed. Relator appealed to

this court under Minn. Stat. § 268.105, subd. 7(a) (2014).

                                         FACTS

       Relator applied for unemployment benefits and established a benefit account with

DEED. DEED determined that relator needed reemployment assistance services and

mailed relator a notice that indicated he had an appointment. The notice provided in bold

and underlined typeface that: “Failure to attend will result in a delay or denial of your

unemployment benefits.”       Relator missed the scheduled reemployment assistance

services meeting.    Relator testified that he “put [the meeting] in [his] schedule

and . . . simply missed it.” Relator also said that the meeting was easy to attend because

he lived 500 feet from the building. The ULJ asked relator if he had any other facts to

provide regarding the missed meeting and he responded that he did not. Relator attended

a subsequent reemployment assistance services meeting.


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                                         ISSUES

       Did relator have good cause under Minn. Stat. § 268.085, subd. 1(7) for missing a

reemployment assistance services meeting so that he is eligible for unemployment

benefits?

                                       ANALYSIS

                                             I.

       The ULJ held an evidentiary hearing and determined that relator did not have good

cause for missing a required reemployment assistance services meeting and was

ineligible for unemployment benefits for the relevant week. Relator argues that he should

receive unemployment benefits for the week that he missed a required meeting because

he was distracted by other priorities and forgot about the meeting. DEED responds that

relator did not have good cause for missing the meeting as is required under Minn. Stat.

§ 268.085, subd. 1(7). This case presents an issue of first impression because “good

cause” is not defined under Minn. Stat. § 268.085, subd. 1(7), and has never been

addressed by this court. In order to interpret good cause, we will first determine whether

the statutory language is ambiguous and, if so, use the canons of statutory construction.

Then we will apply the definition of good cause to the facts of this case.

                                              A.

       The ULJ found that relator did not have good cause for missing the reemployment

assistance services meeting under Minn. Stat. § 268.085, subd. 1(7). “We review de novo

a ULJ’s determination that an applicant is ineligible for unemployment benefits. And we

review findings of fact in the light most favorable to the ULJ’s decision and will rely on


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findings that are substantially supported by the record.” Stassen v. Lone Mountain Truck

Leasing, LLC, 814 N.W.2d 25, 30-31 (Minn. App. 2012) (citations omitted). There is no

equitable denial or allowance of benefits. Minn. Stat. § 268.069, subd. 3 (2014). Minn.

Stat. § 268.085, subd. 1 (2014) lists eligibility requirements for unemployment benefits.

The eligibility statute provides that an applicant may be eligible for unemployment

benefits if: “the applicant has been participating in reemployment assistance services,

such as job search and resume writing classes, if the applicant has been determined in

need of reemployment assistance services by the commissioner, unless the applicant has

good cause for failing to participate.” Minn. Stat. § 268.085, subd. 1(7) (emphasis

added).

       Good cause for failing to participate is undefined in subdivision 1(7). “When the

words of a law in their application to an existing situation are clear and free from all

ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the

spirit.” Minn. Stat. § 645.16 (2014). A statute is ambiguous if its language is subject to

more than one reasonable interpretation. State v. Mauer, 741 N.W.2d 107, 111 (Minn.

2007). Good cause for failing to participate in the reemployment assistance services

meeting is ambiguous because it is susceptible to a spectrum of reasonable

interpretations. For example, good cause could be a medical emergency, family

emergency, or vehicle malfunction. Each of these scenarios could involve facts that

make an applicant more or less responsible for missing the meeting, depending on the

efforts that the applicant makes to attend or reschedule.




                                             4
      When a statutory provision is ambiguous, this court can turn to the canons of

statutory construction to ascertain a statute’s meaning. State v. Leathers, 799 N.W.2d

606, 611 (Minn. 2011). In this case, the doctrine of in pari materia could be particularly

helpful. The doctrine is “a tool of statutory interpretation that allows two statutes with

common purposes and subject matter to be construed together to determine the meaning

of ambiguous statutory language.” Id. (quotation omitted). Under the doctrine of in pari

materia, the definition of good cause from Minn. Stat. § 268.105, subd. 2(d) (2014) could

help define good cause in Minn. Stat. § 268.085, subd. 1(7). See McNeice v. City of

Minneapolis, 250 Minn. 142, 146-47, 84 N.W.2d 232, 236 (1957) (applying the

definition of gambling devices in section 325.53 to gambling devices in sections 614.06

and 614.07).

      Minn. Stat. § 268.105 (2014) describes the process for appeals of a ULJ decision.

If an applicant fails to participate in a hearing before a ULJ, the applicant can make a

request for reconsideration and receive an additional hearing “if the party who failed to

participate had good cause for failing to do so.” Minn. Stat. § 268.105, subd. 2(d)

(emphasis added). In that paragraph, “good cause” is defined as “a reason that would

have prevented a reasonable person acting with due diligence from participating in the

hearing.” Id.

      Similarly, Minn. Stat. § 268.085, subd. 1(7) provides that an applicant may

continue to receive benefits despite missing a required reemployment assistance services

meeting by showing good cause for missing the meeting. The common purpose of these

sections is requiring an applicant to show good cause for missing a hearing or meeting.


                                            5
In the case of section 268.085, the applicant has to show good cause to be eligible for

unemployment benefits, whereas in the case of section 268.105, the applicant has to show

good cause to obtain an additional hearing. In more general terms, the purpose of chapter

268 is to provide workers who are unemployed through no fault of their own with a

temporary partial wage to help the unemployed worker become reemployed. Minn. Stat.

§ 268.03, subd. 1 (2014).      Sections 268.105 and 268.085 further this purpose by

permitting applicants to receive an additional hearing or benefits even though the

applicant missed a required meeting.

      In addition to the definition of good cause in section 268.105, good cause is

defined three other times in chapter 268.1 But these definitions of good cause do not

share a common purpose with Minn. Stat. § 268.085, subd. 1(7). First, good cause is

defined in Minn. Stat. § 268.085, subd. 13c (2014). When an applicant refuses to accept

or apply for suitable employment, that applicant must have good cause for the refusal or

the applicant loses eligibility for eight weeks. Minn. Stat. § 268.085, subd. 13c(a).

Subdivision 13c defines good cause for refusing suitable employment as “a reason that

would cause a reasonable individual who wants suitable employment to fail to apply for,

accept, or avoid suitable employment.” Id., subd. 13c(b). Subdivision 13c(b) also lists

several specific situations that constitute good cause. Where subdivision 13c deals with

an applicant having to justify a refusal to accept (or apply for) suitable employment,

1
  Good cause is undefined in two other sections of chapter 268. See Minn. Stat.
§§ 268.044, subd. 2(c) (requiring employers who fail to submit reports on time to show
good cause to avoid late fees), .053, subd. 1(d) (2014) (dealing with employers requesting
more time to file a notice of election if the commissioner finds good cause for an
extension).

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subdivision 1 concerns a situation where an applicant has to explain an absence from a

meeting. Given the different showings that each subdivision requires, subdivision 13c

does not share a common purpose with subdivision 1.

      Second, in the context of filing continued requests for unemployment benefits,

Minn. Stat. § 268.0865, subd. 5(a) (2014) defines good cause as “a compelling substantial

reason that would have prevented a reasonable person acting with due diligence” from

filing a request. While some of the language in section 286.0865 could be helpful, it is

distinguishable from Minn. Stat. § 268.085, subd. 1(7) because it deals with an initial

request for benefits submitted by mail or electronically, whereas section 268.085

concerns an applicant having to justify a missed meeting. Section 268.0865 would also

impose a higher standard for explaining a missed meeting than section 268.105, as

section 268.0865 defines good cause as a compelling substantial reason that would have

prevented a reasonable person acting with due diligence, whereas section 268.105 only

requires a reason that would have prevented a reasonable person acting with due

diligence. Given a choice between the two, we select the lesser burden because it would

give an applicant a better chance at receiving unemployment benefits in accordance with

the purpose of chapter 268. See Minn. Stat. § 268.031, subd. 2 (2014) (“This chapter is

remedial in nature and must be applied in favor of awarding unemployment benefits.”).

      Finally, Minn. Stat. § 268.095, subd. 2(d) (2014) defines good cause for failing to

request another work assignment or refusing to accept a suitable assignment as “a reason

that is significant and would compel an average, reasonable worker, who would

otherwise want an additional suitable job assignment” to fail to request another


                                           7
assignment or refuse an offered assignment. The definition of good cause in section

268.095 deals with circumstances where an applicant who was employed by a staffing

service refuses to accept or apply for an assignment and has to show good cause for those

actions. That scenario is distinguishable from section 268.085, where the applicant has to

show good cause for missing a reemployment assistance services meeting.

      Because Minn. Stat. § 268.105, subd. 2(d) shares a common purpose and subject

matter with Minn. Stat. § 268.085, subd. 1(7), we adopt the definition of good cause from

section 268.105 to determine the meaning of the undefined and ambiguous good cause in

section 268.085. We therefore define good cause under Minn. Stat. § 268.085, subd. 1(7)

as a reason that would have prevented a reasonable person acting with due diligence from

participating in the reemployment assistance services meeting.

                                             B.

      We next have to determine what would keep a reasonable person acting with due

diligence from participating in reemployment assistance services.         This court has

interpreted the definition of good cause under Minn. Stat. § 268.105, subd. 2(d) on

several occasions, and we can look to those cases to help interpret the definition here.

See Petracek v. Univ. of Minn., 780 N.W.2d 927, 930 (Minn. App. 2010) (using other

interpretations of good cause to help decide what would prevent a reasonable person

acting with due diligence from participating at a hearing under section 268.105).

      In Petracek, the court considered whether being in jail was good cause for missing

a hearing under section 268.105. 780 N.W.2d at 929. The court held that being in jail,

without an attempt to reschedule the hearing or further explanation of the circumstances


                                            8
of the incarceration, is not per se good cause for missing a hearing. Id. at 930. In

Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 345 (Minn. App. 2006), the court held that

missing a hearing for work was not good cause under section 268.105 when the applicant

did not attempt to reschedule the hearing or demonstrate that a request for time off to

attend the hearing was denied. Petracek and Skarhus make clear that an applicant must

make some showing—like an explanation of the circumstances of the incarceration in the

case of Petracek, or DEED refusing to reschedule a hearing in Skarhus—in order to

establish good cause for missing a hearing.

       At the evidentiary hearing, relator testified that he missed the meeting because he

forgot; he did not have any other justification for his absence even when the ULJ asked

for further explanation. Relator also testified that he knew about the meeting, put it in his

calendar, and lived only 500 feet from the meeting location.            Relator attended a

subsequent meeting without issue. A reasonable person acting with due diligence would

not have forgotten about the meeting.

       Relator presented new information for why he missed the meeting in his brief to

this court. Relator explained that he was having difficulty keeping up with insurance-

related paperwork; he was going through bankruptcy; he was searching for a job; and he

was assisting a close family member suffering from an illness. However, relator did not

present this information to the ULJ and we therefore may not consider it. See Plowman

v. Copeland, Buhl & Co., 261 N.W.2d 581, 583 (Minn. 1977) (“It is well settled that an

appellate court may not base its decision on matters outside the record on appeal . . . .”).




                                              9
Additionally, while this court is sympathetic to relator’s personal and financial struggles,

there is no equitable denial or allowance of benefits. Minn. Stat. § 268.069, subd. 3.

                                     DECISION

       Relator is not eligible for unemployment benefits for the week that he missed a

required meeting because he did not have a reason that would have prevented a

reasonable person acting with due diligence from participating at the meeting.

       Affirmed.




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