Lolling v. Midwest Patrol

• Decision Date: 22 March 1996
• Docket Number: No. C4-95-300,C4-95-300
• Citation: 545 N.W.2d 372
• Parties: Kenneth M. LOLLING, Respondent, v. MIDWEST PATROL, Respondent, Commissioner of Economic Security, Petitioner, Appellant.
• Court: Minnesota Supreme Court

Page 372

545 N.W.2d 372

Kenneth M. LOLLING, Respondent, v. MIDWEST PATROL, Respondent Commissioner of Economic Security, Petitioner, Appellant.

No. C4-95-300.

Supreme Court of Minnesota.

March 22, 1996.

Syllabus by the Court

1. Under Minn.Stat. § 268.10 (1992 & Supp.1993), the Department of Economic Security has jurisdiction to consider an untimely protest by an employer that a claimant is disqualified from receiving reemployment insurance benefits if the protest is filed within 24 months of the claim.

2. A claimant is properly disqualified from receiving reemployment insurance benefits where the employer informed claimant of other job assignments available after his position with employer ended, but claimant made it clear that he did not want reemployment.

Appeal from the Court of Appeals, Randall, Judge.

Jim Paciotti, Duluth, for appellant.

Mark R. Gleeman, St. Paul, for Midwest Patrol.

Kent E. Todd, St. Paul, for Commissioner of Economic Security.

Heard, considered, and decided by the court en banc.

OPINION

STRINGER, Justice.

The Commissioner of Economic Security (commissioner) appeals from a decision of the court of appeals holding that under Minn.Stat. § 268.10, subd. 1(d) (1992), which requires an employer to raise a known issue of disqualification within seven days of the mailing of the notice of the employee's claim for benefits, the Department of Economic Security (department) lacks jurisdiction to consider an employer's late protest that a former employee is disqualified from receiving reemployment insurance benefits. Taking into consideration all the provisions of Minn.Stat. § 268.10 (1992 & Supp.1993), the legislative history of the statute, and the purpose of reemployment insurance benefits, we hold that the department has jurisdiction to consider a late protest filed by an employer if it is filed within 24 months of the claim. We conclude that the court of appeals erred in its interpretation of the statute and that the timeliness of the protest under subdivision 1(d) determines the employer's experience rating only and is not jurisdictional. Therefore, we reverse the court of appeals.

From March 1, 1993, through April 6, 1994, respondent Kenneth Lolling was employed by Midwest Patrol, providing security services in various capacities, both part-time and full-time, and received pay in the range of $4.70 to $11 per hour. His final position with Midwest Patrol was as an investigator for the U.S. Steel account on the Iron Range at a rate of $11 per hour.

On about March 31, 1994, U.S. Steel notified both Lolling and Midwest Patrol that it was canceling its contract with Midwest Patrol. Midwest Patrol also sent notice to Lolling informing him of the lost contract. On April 1, 1994, Lolling spoke with Midwest Patrol's regional manager, who asked Lolling to come to Midwest Patrol's regional office in Duluth, where Lolling was originally hired, to discuss job-related problems and other job assignments.

On April 6, 1994, Lolling spoke with his immediate supervisor and informed him that he considered himself unemployed. The supervisor told Lolling that he was not unemployed as far as Midwest Patrol was concerned, and there was other work available to him, but it would be necessary for Lolling to come to Duluth to discuss reassignment. When Lolling stated that he wanted to take two weeks of vacation to look for another job, the supervisor responded that Lolling did not need to look for another job because he already had a job with Midwest Patrol. Lolling repeated that he would need two weeks of vacation and that after that he might be willing to "sit down" and discuss his job.

Later in the day, Lolling also spoke to the regional manager for Midwest Patrol, who emphasized that Lolling was not laid off and that there were other job assignments available, but that Lolling would have to go to Duluth to discuss them. There was also some discussion as to whether Lolling would need to go to Duluth to get his final paycheck and vacation pay. Lolling became angry and threatened the regional manager with legal action. Despite Midwest Patrol's several requests that Lolling go to Duluth to discuss other job assignments, Lolling refused. According to Midwest Patrol, other job assignments were available to Lolling, both full-time and part-time and paid from $8 to $9.50 per hour. Midwest Patrol maintains that Lolling was not assigned other work because he refused to go to Duluth to meet with Midwest Patrol's representatives. According to Lolling, however, no mention was ever made of other employment opportunities with Midwest Patrol after he was informed that the contract with U.S. Steel was lost. Instead, Lolling claims that he was told there was no work available and that all of the discussions about going to Duluth concerned returning equipment and picking up his final paycheck, not reassignment and other work.

Lolling filed a claim for reemployment insurance benefits with the department indicating a claim date of April 3, 1994. On April 8, 1994, the department mailed notification of Lolling's claim to Midwest Patrol, and also on that date, notified Lolling that a determination of qualification had been made by a department claims deputy. On April 18, 1994, the department received a response from Midwest Patrol dated April 14, 1994, stating, "[o]ur records reflect that Mr. Kenneth Lolling is stil [sic] employed by Midwest Patrol."

On April 29, 1994, Midwest Patrol terminated Lolling and on July 29, 1994, filed a notice of separation with the department. Midwest Patrol claimed to the department that Lolling had been terminated because he failed, without good cause, to accept a suitable offer of reemployment and for misconduct. Lolling received a total of $3,254 in benefits; his last benefit check was dated July 15, 1994.

Over the next several months Lolling's claim was reviewed by a variety of tribunals with differing results. On September 1, 1994, the department issued a determination holding that Lolling was involuntarily separated from his employment on or about March 31, 1994, for reasons other than misconduct. That determination was not appealed. A department claims representative issued a second determination on September 8, 1994, however, disqualifying Lolling from receiving reemployment insurance benefits because on April 6, 1994, he failed, without good cause, to accept an offer of suitable reemployment from Midwest Patrol. Lolling filed a timely appeal from the determination. A department reemployment insurance judge conducted an evidentiary hearing and on November 1, 1994, reversed the department's determination, concluding that Lolling was not disqualified from receiving reemployment insurance benefits because no offer of work had been made to Lolling.

Midwest Patrol then filed a timely appeal to the commissioner. A representative of the commissioner reviewed the proceedings and reversed the department reemployment insurance judge's decision, finding the testimony of the employer's representatives more credible than the testimony of Lolling. The commissioner's representative determined that Lolling was disqualified from receiving reemployment insurance benefits because Lolling failed, without good cause, to apply for available suitable work and failed, without good cause, to accept an offer of suitable reemployment from Midwest Patrol. The decision noted that Midwest Patrol had on several occasions clearly informed Lolling that it had other job assignments for him but Lolling refused to go to Duluth to discuss reassignment and threatened Midwest Patrol with legal action. The commissioner's representative concluded that when an employee has clearly made it known that he does not want reemployment, "to require the employer to provide further specifics would have been a 'charade.' "

Lolling petitioned the court of appeals for a writ of certiorari and argued that under Minn.Stat. § 268.10, subd. 1(d) (1992), Midwest Patrol failed to file its claim of disqualification in a timely manner and therefore the department no longer had jurisdiction. ¹ Lolling v. Midwest Patrol, 533 N.W.2d 632 (Minn.App.1995). The court of appeals agreed and reversed, holding that under Minn.Stat. § 268.10, the department does not have jurisdiction to consider an employer's late claim of disqualification. Id. at 636.

The construction of a statute is a question of law and therefore fully reviewable by an appellate court. Hibbing Educ. Ass'n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn.1985). While this court is not bound by an agency's conclusions of law, the manner in which an agency has construed a statute may be entitled to some weight when the statutory language is technical in nature and the agency's interpretation is one of longstanding application. Arvig Tel. Co. v. Northwestern Bell Tel. Co., 270 N.W.2d 111, 114 (1978); see also Minn.Stat. § 645.16(8) (1994) (stating that the intention of the legislature may be ascertained by considering administrative interpretations of the statute). The party seeking review on appeal has the burden of proving that the agency has exceeded its statutory authority or jurisdiction. Markwardt v. State Water Resources Bd., 254 N.W.2d 371, 374 (Minn.1977).

Determining whether the commissioner had jurisdiction to consider an employer's late claim of disqualification involves the interpretation of statutory provisions, which, on their face, seem to conflict. Minn.Stat. § 268.10, subd. 1(d) (1992) provides in relevant part:

The employer so notified [of a claim for reemployment insurance benefits] shall have seven days after the mailing of the notice to file a protest to monetary entitlement or a protest raising an issue of ineligibility or disqualification.

(Emphasis added.) In comparison, Minn.Stat. § 268.10, subd. 2(2) (Supp.1993) provides in relevant part:

At any time within 24 months from the date of the filing of a valid claim for benefits by an...