In the Matter of: Raymond Semler.

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-0131

In the Matter of: Raymond Semler.

Filed November 1, 2021
Affirmed
Bryan, Judge

Department of Employment and Economic Security
File No. 41074083-3

Raymond L. Semler, Moose Lake, Minnesota (pro se relator)

Keri Phillips, Anne Froelich, Minnesota Department of Employment a nd Economic
Security, St. Paul, Minnesota (for respondent department)

Considered and decided by Bryan, Presiding Judge; Segal, Chief Judge; and Frisch,
Judge.
NONPRECEDENTIAL OPINION
BRYAN, Judge
In this appeal from a determination of ineligibility for Pa ndemic Unemployment
Assistance (PUA) and Federal Pandemic Un employment Compensation (FPUC), relator
argues that the unemployment law judge (ULJ) erred in finding that a policy violation, and
not the COVID-19 pandemic, resulted in relator’s separation from employment. Because
substantial evidence in the record supports this finding, we affirm.
2
FACTS
Pro se relator Raymond Semler has been civilly committed at a Minnesota Sex
Offender Program (MSOP) facility since 2006. As part of a vocational work program at
MSOP, Semler worked a few hours per week as a janitor until his employment ended in
May 2020. Semler applied for unemploymen t benefits and began receiving PUA and
FPUC payments through the Minnesota unem ployment insurance program. On June 4,
2020, Respondent Department of Employ ment and Economic Security (DEED)
determined that Semler was ineligible fo r PUA and FPUC because he was suspended
because of a policy violation and not the COVID-19 pandemic. Semler appealed, and the
ULJ held a hearing on September 16, 2020.
At the hearing, the ULJ received seve n exhibits, including a copy of Semler’s
application for unemployment benefits. In the application, Semler stated that his last day
of work was May 14, 2020. The application asked Semler to identify the reason for
separation from his employer. Semler marked the answer on the form, stating that the
separation stemmed from disciplinary action. Specifically, the answer Semler selected on
his application states: “Suspension: Your employer will temporarily not allow you to work.
For example: Pending an inves tigation or disciplinary action. ” A different option on the
application applies when the separation resulted from the pandemic: “COVID-19: You are
currently unemployed or your hours were reduced as a direct or indirect result of COVID-
19/ Coronavirus.” Semler did not select th is option as a cause of his separation from
employment. In a separate portion of the app lication, Semler provided the reason for his
separation from employment a second time. Se mler selected the option that pertains to
3
disciplinary action, which states, “Policy viola tion or behavior.” On the next clarifying
question on the application, Se mler again selected the option that relates to disciplinary
action: “My employer said I was suspended be cause I misreported/falsified the hours I
worked, my productivity, my expenses, or some other document related to the
employment.”
The ULJ also received an exhibit containing a May 14, 2020 letter that MSOP sent
Semler, which stated:
As you are aware, on 5/5/2020 it was reported you
finished completing your assigned cleaning tasks . . . at
9:15pm, but you documented on your timesheet that you
participated in vocational tasks from 8:55pm to 9:40pm. When
unit staff questioned the times you documented on your time
sheet, you stated it was fine. This is considered falsification on
your timecard and will not be tolerated.

The letter also informed Semler that MSOP suspended him from all vocational
programming for a minimum of 90 days. When the ULJ then questioned Semler about the
May 14, 2020 suspension letter, Se mler testified that he receiv ed the letter, but that the
incident took place before March 24, 2020. Semler testified that the reason for a later date
on the letter was because “it had taken that long for an audit . . . to come up.” Semler also
testified that the reason he filled out the appl ication as he did was because he was relying
on the May 14, 2020 letter, and that he was confused about how to answer the questions.
Missing from the exhibits was a portion of a fax Semler attempted to send to the
ULJ. The fax contained a March 24, 2020 memo from MSOP in response to the COVID-
19 pandemic. When the ULJ could not find this document in the record, the ULJ suggested
that Semler read the memo into the record and that Semler could send the memo to the ULJ
4
after the hearing.1 Semler agreed to proceed in that fashion and read the “most important
part” of the memo into the record:
As we are all aware, the info rmation coming out about the
COVID19 pandemic continues to change rapidly. This not
only includes the number of cases being reported in the
community, but also new mandates to limit social and other
non-essential gatherings. With this in mind, effective today,
our own MSOP-ML Moose Lake community is temporarily
suspending open movement and instituting controlled
movement; requiring clients to leave units through a call-out
process. Clients who participate in the vocational shop and all
other work-for-pay duties will continue, with the exception of
any work done on other units , the music room and clerk
positions. Client kitchen workers (who are not symptom
positive) will be allowed to work.

Semler testified that because he fit within the category of “work done on other units,” the
memo demonstrated that he was furloughed due to the pandemic. Semler also testified that
he did not work after receiving the memo on March 24, 2020.
On September 18, 2020, the ULJ issued its findings of fact and decision. The ULJ
found that on May 14, 2020, “Semler was re moved from all vocational programming at
MSOP for at least 90 days, because of what the vocational supervisor believed was a
timecard violation Semler had committed.” Th e ULJ also found that Semler’s testimony
that he did not work after Ma rch 24, 2020, was not credible. According to the ULJ, this
testimony contradicted evidence relating to the May 14, 2020 lette r of suspension and

1 At the end of the hearing, the ULJ agreed to hold the record op en until the end of the
following day to allow Semler the opportunity to submit the March 24, 2020 memo so that
it could be included as part of the evidence. Semler submitted an affidavit stating that the
March 24, 2020 memo states that he was furloughed on March 24, 2020, due to the
pandemic, but did not submit the actual memo. Semler requested an extension, but the
ULJ declined to grant Semler’s request.
5
Semler’s application answers indicating that he was suspended because of an alleged
misrepresentation of hours work ed on May 5, 2020. The UL J found that Semler did not
provide any reasonable explanation for the discrepancy between his testimony and his
written answers on the questionnaire. The ULJ determined that Semler’s explanation was
“implausible” because the May 14, 2020 letter makes no refe rence to any date in March
and refers only to May 5, 2020. The ULJ further stated that, in the alternative, even if it
believed Semler’s testimony that he was furl oughed as a direct result of the pandemic,
Semler was unavailable for suitable employment because Semler is confined at MSOP and
is therefore restricted from accepting or performing any employment outside the facility.2
Accordingly, the ULJ determined that Semler was ineligible for PUA and FPUC.
On September 24, 2020, Semler request ed reconsideration and an additional
evidentiary hearing. Semler submitted the March 24, 2020 memo, which contains
substantially the same information Semler read into the record at the hearing. The ULJ
declined to hold an additional hearing and affirmed its decision. This appeal follows.
DECISION
Semler argues that substantial evidence does not support the ULJ’s finding
regarding what caused his separation.3 We conclude that substantial evidence supports the
finding that Semler’s unemployment resulted from a policy violation and not the pandemic.

2 Because Semler does not challenge the ULJ’s alternative determination that Semler was
not available for suitable employment, and be cause we affirm the finding that Semler’s
separation from employment re sulted from a policy violation and not the pandemic, we
need not review the ULJ’s alternative determination.
3 Relying solely on the March 24, 2020 memo , Semler also argues that this court must
reverse the ULJ’s decision because the ULJ di d not assist him with the presentation of
6
Section 2102 of the Coronavirus Aid, Relief, and Economic Security Act (CARES
Act), authorizes PUA payments to “covered individuals.” A “covered individual” includes,
in relevant part, an individual who “is not eligible for regular compensation or extended
benefits under State or Federa l law,” “is otherwise able to work and available for work
within the meaning of appli cable State law,” and “is unemp loyed, partially unemployed,
or unable or unavailable to work” as a resu lt of one of the 11, pandemic-related reasons
enumerated in Section 2102. CARES Act § 2102(a)(3) (2020). An individual who meets
these requirements is also eligible for FPU C benefits. CARES Ac t §§ 2102(d)(1)(A)(ii),
2104(b)(1)(B) (2020).
State law applies to the administration of PUA payments and “[t]he provisions of
the applicable state law that apply to cl aims for PUA include,” in relevant part,
“[d]eterminations, redeterminations, appeals, and hearings.” U.S. Dep’t of Labor,
Unemployment Insurance Program Letter No. 16-20 (April 5, 2020) at I-9; 20 C.F.R.
625.11. Thus, the PUA and FPUC incorporat e Minnesota Statutes sections 268.001-.23
(2020), which govern this court’s review of administrative unemployment decisions.

evidence and because the ULJ declined to hold an additional evidentiary hearing. Semler,
however, does not develop any argument explaining how the alleged errors prejudiced his
substantial rights in light of the undisputed fact that Semler read the “most important part”
of the March 24, 2020 memo into the record and because the ULJ agreed to hold the record
open to permit Semler to supp lement the record with the March 24, 2020 memo. We
discern no obvious prejudice and decline to address the issue. See State, Dep’t of Labor &
Indus. v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (Minn. 1997) (declining to reach
an inadequately briefed issue); Schoepke v. Alexander Sm ith & Sons Carpet Co. , 187
N.W.2d 133, 135 (Minn. 1971) (“An assignment of error based on mere assertion and not
supported by any argu ment or authorities in appella nt’s brief is waived.”); Ywswf v.
Teleplan Wireless Servs., Inc. , 726 N.W.2d 525, 530 (Minn. App. 2007) (rejecting the
relator’s argument of an unfair hearing in the absence of prejudice).
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Pursuant to chapter 268, this court reviews the decision of the ULJ to determine whether
its factual findings are supported “by substantia l evidence in view of the entire record as
submitted.” Minn. Stat. § 268.105, subd. 7(d )(5) (2020). “Substantia l evidence is such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Posey v. Securitas Sec. Servs. USA, Inc., 879 N.W.2d 662, 66 (Minn. App. 2016) (quotation
omitted). In addition, we review “findings of fact in the light most favorable to the ULJ’s
decision.” Fay v. Dep’t of Emp’t & Econ. Dev., 860 N.W.2d 385, 387 (Minn. App. 2015).
In this case, the information Semler provided in his application for unemployment
benefits and the May 14, 2020 suspension lette r support the ULJ’s finding that Semler’s
separation from unemployment was not caused by the COVID-19 pandemic and does not
satisfy the pandemic-related requirements of the PUA and FPUC. In his application,
Semler declared in three separate answer s that his separation from employment resulted
from a policy violation. Specifically, Semler stated that falsification of the number of hours
worked caused his suspension. The May 14 , 2020 suspension le tter corroborates these
answers, stating that Semler was suspended because he misrepresented the number of hours
he worked on May 5, 2020. We conclude that substantial evidence supports the ULJ’s
finding because a reasonable mind could believ e the statements on Semler’s application
and in the May 14, 2020 suspension letter. See Posey, 879 N.W.2d at 667.
Although Semler testified that he interp reted the March 24, 2 020 memo as proof
that his suspension was pandemic-related, we are not convinced that the ULJ erred for two
reasons. First, the memo itself does not establish that Semler was separated from
employment. The March 24, 2020 memo states, “Clients who participate in the vocational
8
shop and all other work-for-pay duties will continue, with the exception of any work done
on other units, the music room and clerk positions.” The memo contemplates the ability
of some to continue working despite the pandemic, just as Semler continued to do.
Second, we cannot accept Semler’s argument because it requires us to disregard the
ULJ’s credibility determinations and to reweigh conflicting evidence. See Sefkow v.
Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (holding that appellate courts do not reweigh
evidence on appeal); Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 344 (Minn. App. 2006)
(holding that we defer to the ULJ’s credibilit y determinations on appellate review). The
ULJ discounted Semler’s testimony, and— as required by Minnesota Statutes section
268.105, subdivision 1a—the ULJ explaine d why: Semler’s te stimony contradicted
evidence from Semler’s application for unemployment benefits and from the May 14, 2020
suspension letter. Semler did not provide any reasonable explanation for this discrepancy.
We cannot agree with Semler that the Marc h 24, 2020 memo prov es his separation was
pandemic-related without ignoring the exception noted in the memo and disregarding the
scope of our review.
Affirmed.