Victor A. Thomas, Relator,

This opinion is nonprecedential except as provided by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
A21-1069

Victor A. Thomas,
Relator,

vs.

Prime Pork LLC,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed April 25, 2022
Reversed and remanded
Cleary, Judge*

Department of Employment and Economic Development
File No. 42273067-6

Charles H. Thomas, Law Offices of Southern Minnesota Regional Legal Services, Inc.,
St. Paul, Minnesota (for relator)

Prime Pork LLC, Windom, Minnesota (for respondent employer)

Anne B. Froelich, Keri Phillips, Department of Employment and Economic Development,
St. Paul, Minnesota (for respondent department)

Considered and decided by Ross, Presid ing Judge; Cochran, Judge; and Cleary,
Judge.

* Retired judge of the Minnesota Court of Ap peals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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NONPRECEDENTIAL OPINION
CLEARY, Judge
Relator Victor A. Thomas challenges an unemployment-law judge’s (ULJ’s)
dismissal as untimely of his administrative appeal of the determination that he was
ineligible for unemployment benefits. Relator argues that (1) the ULJ misinterpreted and
misapplied the substantial-compliance standard set out in In re Murack, 957 N.W.2d 124
(Minn. App. 2021); (2) the ULJ erroneously concluded that relator’s requalification
argument was outside the scope of the issu e presented; and (3) respondent Minnesota
Department of Employment and Economi c Development (DEED) inappropriately
withheld records from him. Because relato r substantially complied with Minn. Stat.
§ 268.101 (2020), the statute setting out the requirements for an administrative appeal, we
reverse and remand.
FACTS
After Prime Pork LLC discharged relator, he applied for unemployment benefits
and established a benefits account in August 2020. On September 14, 2020, DEED sent
relator a determination of ineligibility stating that the determination would be final unless
appealed within 20 days, or by October 5, 2020. Relator submitted his appeal 15 days after
the deadline on October 20, 2020, and a ULJ determined that his appeal was untimely.
Relator requested reconsideration, and the ULJ affirmed the ineligibility
determination. Relator then petitioned this court for a writ of certiorari. We stayed
relator’s case pending the outcome of Murack. And after we released our opinion in

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Murack, we remanded relator’s case for further proceedings on whether relator’s appeal
was timely in light of Murack’s substantial-compliance standard.
In April 2021, a ULJ held a hearing on re mand. Relator testified that he had no
computer and had trouble securing transportation. He testified that when he called DEED,
the representative told him that “there was not hing [he] could do,” so he did not appeal.
He thought that he called DEED multiple times but did not recall when he placed the calls.
He later contacted a legal aid organization but did not recall when he did so. An attorney
with the organization testified that he returned relator’s call on October 14, 2020, and that
he helped relator complete his appeal on October 20, 2020.
In May 2021, the ULJ issued a decision concluding that relator’s appeal was still
untimely under the substantial-compliance standard. The ULJ found that relator presented
no evidence showing that he took steps to file an appeal within the 20-day appeal period
and therefore did not substan tially comply with the filing requirements set out in Minn.
Stat. § 268.101.
Relator requested reconsideration as well as additional records from DEED,
including data about phone calls between re lator and DEED. DEED initially rejected
relator’s request for records but nevertheless provided some of the requested information
to relator in mid-July 2021. However, ne ither relator nor DEED submitted the records
DEED provided as evidence.
Relator submitted his written argument regarding reconsideration on July 22, 2021.
In his memorandum, relator al so argued that he substantia lly complied with ineligibility-
requalification requirements under Minn. Stat. § 268.095, subd. 10(a) (2020).

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The ULJ affirmed the May 20 21 determination that relator’s appeal was untimely.
The ULJ also concluded that relator’s requalif ication argument was outside the scope of
the issue presented. Relator appeals by writ of certiorari.
DECISION
We review de novo whether a ULJ proper ly dismissed an appeal as untimely.
Murack, 957 N.W.2d at 127. We ma y reverse, remand, or modi fy a ULJ’s decision if it
reflects an error of law and prejudices an a pplicant’s substantial rights. Minn. Stat.
§ 268.105, subd. 7(d) (2020). We review the ULJ’s factual findings to determine if the
record reasonably supports them. Fay v. Dep’t of Emp. & Econ. Dev. , 860 N.W.2d 385,
387 (Minn. App. 2015).
Relator first argues that the ULJ based its decision on relator’s failure to take steps
to comply with the app eal deadline within the 20-day appe al period. He asserts that the
ULJ thereby misinterpreted the substantial-compliance standard. We agree.
A determination of ineligibility is final unless appealed within 20 calendar days after
DEED sends the determination. Minn. Stat. § 268.101, subd. 2(f). This deadline is usually
absolute. Murack, 957 N.W.2d at 127. But in Murack, we held that Governor Tim Walz’s
March 16, 2020, executive order suspended strict compliance with the 20-day deadline. Id.
at 131 (citing Emerg. Exec. Order No. 20-05, Providing Immediate Relief to Employers &
Unemployed Workers During the COVID-19 Peacetime Emergency (Mar. 13, 2020) (EEO
20-05)). Instead, an applicant was required to substantially comply with the deadline. Id.
at 130. An applicant substantially complied if the applicant (1) “ ha[d] a reasonable
explanation for failing to stric tly comply,” (2) “ha[d] take n steps to comply with the

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statute,” (3) “ha[d] generally complied with the statute’s purpose,” and (4) “there [was]
reasonable notice and a lack of prejudice to other parties.” Id.
Here, the ULJ stated that re lator provided no evidence “that he took any actions
towards filing an appeal during the appeal period.” (Emphasis added.) But our decision
in Murack does not require that the steps taken to comply have to have occurred during the
appeal period. Id.; see also In re Moose , No. A21-0881, 2022 WL 433340, at *2 (Minn.
App. Feb. 14, 2022) (“We never stated in Murack that to demons trate ‘substantial
compliance’ a relator had to demonstrate that she made efforts to file the appeal within the
20-day appeal period.”).1 By basing its decision on relator’s failure to take steps to comply
within the 20-day appeal period, the ULJ erred as a matter of law.
DEED cites to several nonprecedential opinions of this court to support its argument
that steps must be taken within the appeal period. But none of those cases stand for that
proposition. Instead, those cases note that applicants failed to take steps within the appeal
period or within the time up until th e applicants submitted their appeals . See Green v.
Hazelden Found., No. A21-0316, 2021 WL 4428901, at *2 (Minn. App. Sept. 27, 2021)
(stating applicant did not take steps during statutory period or the 109 days it took for her
to appeal); Sawatzky v. Harris Rochester, Inc. , No. A21-0269, 2021 WL 3027277, at *2
(Minn. App. July 19, 2021) (addressing whether relator “took steps to comply with the
statute” generally, as opposed to with the d eadline specifically (emphasis added));

1 We cite Moose for its persuasive value because it di rectly addresses the same issue we
address here. Minn. R. Civ. App. P. 136.01(c) (stating th at nonprecedential opinions of
this court may be cited for persuasive value).

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Hinnenkamp v. Minneapolis Special Sch. Dist. #001 , No. A21-0102, 20 21 WL 3278024,
at *2 (Minn. App. Aug. 2, 2021) (noting that applicant failed to substantially comply with
the appeal period when “he failed to appeal the determination for about two months” after
receiving notice).
We further note that DEED’s interpretati on that steps must be taken during the
appeal period is contrary to public policy, specifically the policy expressed in EEO 20-05.
EEO 20-05 sought to alleviate economic in security and provide “immediate relief to
employers and unemployed workers” during the pandemic. EEO 20-05 at 1. It is possible
that an applicant might receive a determina tion of ineligibility, become hospitalized with
the COVID-19 virus the following day, and remain in the hospital, unable to take steps to
appeal the ineligibility determination—let al one complete that appeal—for the entire
appeal period. Requiring steps to be taken du ring the appeal period resembles the strict
compliance in place before the pandemic and does little to alleviate the economic insecurity
of unemployed workers. In sum, the ULJ erred by considering only actions that the relator
took (or failed to take) before the 20-day deadline in determining whether relator took steps
to comply with the statute.
We next address whether the ULJ’s erro r in misinterpreting the substantial-
compliance standard requires reversal and remand. Reversal and remand is not warranted
unless the error prejudiced relator’s substantia l rights. Minn. Stat. § 268.105, subd. 7(d).
We conclude that the ULJ’s decision here prejudiced relator’s substantial rights.
The ULJ acknowledged that relator “faced transportation issues” and “did not have
computer access” during the appeal period. But the ULJ reasoned that relator could have

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appealed either online or by mail, and that relator did not present evidence showing that he
could not appeal via mail. The ULJ also determined that relator’s testimony regarding his
call or calls to DEED changed and therefore found that testimony not credible. Finally,
the ULJ did not address the third and fourth substantial-compliance factors: whether relator
“generally complied with the statute’s purpose” or whether the other parties had reasonable
notice or would be prejudiced. Murack, 957 N.W.2d at 130.
We conclude that the record does not support the ULJ’s determination here and
further conclude that relator’s substantial rights were prejudiced as a result. Relator stated
that he has no computer; thus, he could not easily appeal online. And he had trouble
accessing transportation, gi ving rise to an inference that he could not access facilities or
materials to mail an appeal. And he testified that he called DEED and was told there was
nothing he could do. As such, he provided a reasonable explanation for failing to strictly
comply with the appeal deadline.
Additionally, although the ULJ found relator’s testimony regarding when and how
many times he called DEED not credible, relator’s testimony was consistent and
undisputed that he called DE ED at least once about appealing the determination of
ineligibility. Relator also sou ght an attorney to assist w ith his appeal. And he then
appealed within 15 days of th e deadline. We conclude that he took steps to comply with
the statute.
Finally, the record is clear as to the remaining substantial-compliance factors:
relator complied with the purposes of the statute by calling DEED to inquire about his case
and attempting to appeal in a timely manner ; DEED and Prime Pork had adequate notice

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of relator’s appeal; and we discern no prej udice to DEED or Prime Pork in allowing
relator’s appeal to go forward. See Robbinsdale Clinic, P.A. v. Pro-Life Action Ministries,
515 N.W.2d 88, 90 (Minn. App. 1994) (resolvi ng issue for first time on appeal to avoid
further litigation on the matter) (citing Mitchell v. Morten , 54 N.W.2d 333, 337 (Minn.
1952) (stating that issues may be resolved on appeal when relevant parts of record are clear
and doing so is in the interests of judicial economy)), rev. denied (Minn. June 15, 1994).
Because we reverse and remand for furt her proceedings consistent with this
decision, we need not address relator’s requalification or access-to-records arguments, and
we express no opinion as to the merits of those arguments.
Reversed and remanded.