Eugene Boisson, Relator v. Shepard Parking, LLC, Transport Leasing Contract, Inc., Department of Employment and Economic Development

This opinion will be unpublished and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
A15-0298

Eugene Boisson,
Relator,

vs.

Shepard Parking, LLC,
Respondent,

Transport Leasing Contract, Inc.,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed December 7, 2015
Affirmed
Halbrooks, Judge

Department of Employment and Economic Development
File No. 32146918-4

Peter B. Knapp, Mark D. Murphy (certified student attorney), William Mitchell Law
Clinic, St. Paul, Minnesota (for relator)

Shepard Parking, LLC, St. Paul, Minnesota (respondent)

Pamela Abbate-Dattilo, Fredrikson & Byron, P.A., Minneapolis, Minnesota (for
respondent Transport Leasing Contract, Inc.)

Lee B. Nelson, Timothy C. Schepers, Minnesota Department of Employment and
Economic Development, St. Paul, Minnesota (for respondent Department of Employment
and Economic Development)
 Considered and decided by Hooten, Presiding Judge; Cleary, Chief Judge; and

Halbrooks, Judge.

UNPUBLISHED OPINION

HALBROOKS, Judge

Relator challenges the unemployment-law judge’s (ULJ) decision that he received

constitutionally adequate notice related to his receipt of benefits. Because we conclude

that the Minnesota Department of Employment and Economic Development’s (DEED)

notice was reasonably calculated to apprise relator of the effects of failing to turn in a

questionnaire or appeal an initial decision, we affirm.

FACTS

Relator Eugene Boisson1 was let go by respondent Transport Leasing Contract,

Inc. (now Shepard Parking, LLC) on October 9, 2013.2 Boisson filed for unemployment

benefits with DEED in January 2014. DEED sent Boisson a request for more

information on January 17, 2014. He did not receive that request. DEED sent another

request on January 28, 2014, along with a notice of hearing and determinations of

ineligibility. The determinations of ineligibility contained the following information:

If you provide complete information within 20 days, this
determination will be set aside and your eligibility for
benefits will be determined based on information from you

1
Boisson passed away prior to this appeal. His successor in interest is Adrienne Madson.
His passing does not affect our ability to decide this case because his successor has
decided to continue pursuing this appeal.
2
Because of the change in ownership/name, there were two different cases in front of the
ULJ. However, the issues in both are exactly the same. Because the opinions issued by
the ULJ are identical and the timelines are identical, we decide them together.

2
 and any other available source. If you provide information
more than 20 days from now, you cannot be paid benefits for
any weeks occurring before you provide information.

....

This determination will become final unless an appeal
is filed by Tuesday, February 18, 2014.

Boisson did not appeal within the deadline, claiming not to have understood the

language above. This was in part, he argued, because the request for information was

dated January 28, 2014, but it had a separate due date of January 26, 2014 printed on it.

Boisson also claimed that he was confused because the request for more information and

the determination of ineligibility arrived on the same day, causing him to question why

he had to provide additional information if DEED had already determined him to be

ineligible to receive benefits.

Boisson testified that he called DEED the same day that he received the

documents. He stated that he told DEED that his life was “totally upside down,” he had

no car, no computer, no job, and no Internet. He indicated that he asked DEED to make a

note on his account if necessary. According to Boisson, DEED told him that some delay

would be fine but that he should turn in the requested information as soon as possible.

Boisson did not do so.

Boisson testified that, instead, he called DEED every week and was told by the

automated phone system that “you must complete and return your questionnaire you

received” and that a “[f]ailure to do so may cause a delay or denial of benefits.” Boisson

did not submit the requested information until seven months later on September 12, 2014.

3
DEED then ended his indefinite denial status and changed his status to one eligible for

benefits. He subsequently received benefits until his benefit year terminated on January

5, 2015. DEED did not grant Boisson an extension to his benefit year for the time he did

not receive benefits, nor did it issue him the benefits he forfeited by not returning the

questionnaire earlier.

Boisson challenged the denial of benefits. In a hearing before the ULJ, Boisson

argued, in relevant part, that DEED violated his procedural due-process rights based on

inadequate notice of the effect of a failure to turn in the questionnaire or file a timely

appeal. The ULJ issued a decision, and later an affirmation of the decision, concluding

that the determinations of ineligibility sent on January 28, 2014, “clearly stated that they

would become final unless they were appealed by Tuesday, February 18, 2014.” As a

result, the ULJ concluded that DEED did not violate Boisson’s due-process rights. The

ULJ also found that Boisson had no plausible explanation for failing to turn in the

requested information until seven months after the deadline. This appeal follows.

DECISION

Boisson challenges the ULJ’s decision that he received adequate notice in

accordance with the Due Process Clause principles in the United States and Minnesota

Constitutions. Specifically, Boisson claims that DEED provided inadequate notice of the

effect of failing to turn in the questionnaires or timely appealing the initial

determinations. He claims that he did not realize that DEED would determine him to be

permanently ineligible for each week he did not turn in the information or file an appeal.

Boisson asserted that he thought that any delay would just push back the start of his

4
benefit year or that he could update DEED later and receive back-pay for the weeks that

had already passed.3

A ULJ’s decision concerning the adequacy of notice under the Due Process Clause

is a legal issue subject to de novo review. In re W. Side Pawn, 587 N.W.2d 521, 522

(Minn. App. 1998), review denied (Minn. Mar. 30, 1999). The United States and

Minnesota Constitutions guarantee that “[n]o person shall . . . be deprived of life, liberty

or property without due process of law.” U.S. Const. amend. V.; Minn. Const. art. I, § 7.

“To determine whether an individual’s right to procedural due process has been violated,

we first determine whether a protected liberty or property interest is implicated and then

determine what process is due . . . .” Sweet v. Comm’r of Human Servs., 702 N.W.2d

314, 319 (Minn. App. 2005), review denied (Minn. Nov. 15, 2005).

“Unemployment benefits are an entitlement protected by the constitutional right to

procedural due process.” Godbout v. Dep’t of Emp’t & Econ. Dev., 827 N.W.2d 799, 802

(Minn. App. 2013). In a claim of constitutionally inadequate notice, it is the job of the

appellate courts to determine whether the notice was “reasonably calculated, under all the

circumstances, to apprise interested parties of the pendency of the action and afford them

an opportunity to present their objections.” McShane v. Comm’r of Pub. Safety, 377

N.W.2d 479, 482-83 (Minn. App. 1985) (quotation omitted), review denied (Minn. Jan.

23, 1986). Phrased another way, it requires DEED to have “communicate[d] the interest

at stake.” Schulte v. Transp. Unlimited, Inc., 354 N.W.2d 830, 834 (Minn. 1984).

3
At oral argument Boisson seemed to be claiming the former because he requested pay
from January 2015 to March 2015. The issue is immaterial since we conclude that DEED
provided adequate notice.

5
 The documents that DEED sent Boisson informed him that if he wished to

challenge his eligibility status, he had to complete the questionnaires. The documents

stated that an individual “is not eligible for unemployment benefits for any week in which

the applicant fails to provide requested information about an issue that may affect the

applicant’s eligibility for unemployment benefits.” Further, the determinations of

ineligibility contained a bold heading of “Right of Appeal” that stated: “This

determination will become final unless an appeal is filed by Tuesday, February 18,

2014.” DEED warned Boisson within those determinations that “[i]f you provide

information more than 20 days from now, you cannot be paid benefits for any weeks

occurring before you provide information.”

Boisson also received oral notice. When he called DEED on the day that he

received the documents, the DEED representative told him to turn in the information as

soon as possible. Boisson testified that the automated phone message he heard every

week for seven months told him that he needed to turn in the questionnaire and that a

failure to do so “may cause delay or denial of benefits.” Despite the weekly reminders,

Boisson did not fill out the questionnaires or file an appeal for more than six months.

Boisson primarily relies on two cases to support his claim—neither of which

applies in this case. Schulte involved an individual who filed for unemployment benefits,

but then ignored the notice of appeal from DEED because he had returned to work. 354

N.W.2d at 831. Schulte then lost his next job and could not receive unemployment

benefits because of his failure to respond in the first case or pay back the benefits that he

had erroneously received. Id. In his appeal, Schulte argued that he was not notified of

6
the consequences of failing to follow up with DEED. Id. at 832. The supreme court

agreed, concluding that a rational person who received benefits and then found a new job

would not have a reason to attend another hearing. Id. at 834.

In this case, Boisson did not receive any benefits before he submitted the

questionnaires. He was still involved in DEED’s processes as evidenced by his weekly

calls to DEED. And he was advised multiple times that failure to submit the

questionnaires could result in the denial of benefits.

This case is also unlike the second case that Boisson relies on, Morales v. Dep’t of

Emp’t & Econ. Dev., 713 N.W.2d 882 (Minn. App. 2006). In Morales, DEED did not

file a brief in opposition to Morales’s statutory (not constitutional) claim. DEED advised

this court that it agreed with Morales’s argument. 713 N.W.2d at 884. Further, no one

disputed the ULJ’s finding that a DEED representative gave Morales advice to file his

claim with DEED past the deadline. Id. That advice prevented Morales from receiving

any unemployment benefits from DEED, which resulted in Morales meeting the statutory

exception. Id.

Here, Boisson is not relying on a statutory exception. Further, there was no

finding, nor is there support in the record to indicate, that a DEED representative actively

misled Boisson into failing to turn in the questionnaires. Instead, he was consistently

reminded to turn in the questionnaires, and he did not.

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 We conclude that DEED consistently apprised Boisson of the interest at stake as

well as the consequences of failing to turn in the questionnaires or appeal the initial

determinations of ineligibility.4 Thus, DEED’s notice was constitutionally adequate.

Boisson argues in the alternative that “Minnesota law clearly provides that

‘[e]very determination or amended determination of benefit account must contain a

prominent statement indicating in clear language the consequences of not appealing[,]’”

and DEED’s did not. See Minn. Stat. § 268.07, subd. 3(a) (2014). Boisson raises this

argument for the first time on appeal. Arguments not presented to the ULJ are waived.

Thiele v. Stitch, 425 N.W.2d 580, 582-83 (Minn. 1988) (“An appellate court may not base

its decision on matters outside the record on appeal, and may not consider matters not

produced and received in evidence below.”). Consequently, we do not address it.

Affirmed.

4
This is not to say that there is no room for improvement. DEED admitted at oral
argument that the forms could be clearer.

8