ROBERT J LAUMB, Employee
MANPOWER, Employer
An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.
The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.
The decision of the administrative law judge is affirmed. Accordingly, the employee's request for hearing is dismissed, and the department's determination remains in effect.
Dated and mailed April 14, 2004
laumbro . usd : 115 : 1 PC 712.2
/s/ David B. Falstad, Chairman
/s/ James T. Flynn, Commissioner
/s/ Robert Glaser, Commissioner
In his petition for commission review, the employee states as follows, as relevant here:
When I received the hearing notice in the mail I put a note on my calendar on Jan. 14 hearing at 9:00 am. On the morning of the 14th around 8:30 am I checked the hearing notice again for the address that's when I realized it said 8:00 am and not 9:00 am. I immediately called (608) 242-4819 and explained what had happened..
The commission has held that, under certain circumstances, mismarking a calendar can provide good cause for failing to appear at hearing. In its recent decision in Marshall v. The Eyecare Place, Inc., UI Hearing No. 03403082GB (LIRC Feb. 26, 2004), the commission stated as follows:
That is not to say that every instance of mismarking a calendar will constitute good cause for a failure to appear. There still must be some rational explanation for the actual mismarking. In the present case, the the employee transposed the hearing date from August 14 to August 15 and, given that the two days are adjacent on the calendar, such a failure is understandable. The same reasoning could apply to a mismarking of a Thursday, November 8 hearing as occurring on Thursday, November 15, for example. Again, the two dates are adjacent on the calendar and the failure essentially is the inadvertent marking of the wrong Thursday. These kinds of failures fall within the scope of the excusable neglect the courts have stated constitutes good cause for a failure to appear.
This discussion is consistent with the decisions in Monarch Meat Packing Co. v. Krueger & Ind. Comm., (Cir. Ct. Mar. 21, 1958) (good cause found where employer marked July 18 as hearing date on calendar even though notice stated July 17 hearing date); Littlewood v. LIRC and Mainstream Records, Inc., Case No. 84-CV-1751(Waukesha Co. Cir. Ct. March 21, 1985) (good cause found where employee mistakenly removed February page from his calendar and, as a result, marked hearing date as March 15 rather than February 15); Figueroa v. I. R. Construction Production Co., Inc., UI Hearing No. 8761715MW (LIRC July 14, 1987) (good cause found where employee marked March 11 as hearing date on calendar even though notice stated March 10 hearing date); Boym et al. v. Milwaukee Public Schools, UI Hearing No. 89606363MW (LIRC Aug. 9, 1990) (good cause found where employee's representative marked September 13 as hearing date on calendar even though notice stated September 6 hearing date, and space on calendar for September 6 immediately above space for September 13); Kuske v. Manion Outdoors Co., Inc., UI Hearing No. 89402143AP (LIRC Feb. 27, 1991) (good cause found where employee marked September 28 as hearing date on calendar even though notice stated September 27 hearing date).
However, in the instant case, the employee states no rational explanation for putting a note on his calendar to the effect that the hearing was at 9:00 am when the hearing notice stated that the hearing was at 8:00 am. Unlike the cases cited above, the employee does not represent, for example, that he checked the box for 9:00 a.m. which was adjacent to the box for 8:00 a.m. Instead, he represents that he "put a note" of the time on his calendar. The only possible explanation for his mistake is that he misread the hearing notice. This fact situation is more akin to that in Royster v. Kelly Services, Inc., (LIRC May 1, 2002) where the employer's representative mistakenly formed the belief, after reading the hearing notice, that the hearing was scheduled to commence at 9:30 a.m. rather than the noticed time of 9:00 a.m. The commission concluded that the misreading which led to the representative's misunderstanding of the actual scheduled hearing time did not constitute excusable neglect. See, also, Blunck v. Brickstone LLC, UI Hearing No. 02002279MD (LIRC Aug. 1, 2002) (misreading hearing notice not excusable neglect because parties are expected to take the time to carefully and thoroughly read information received from the department).
The commission concludes as a result that the employee failed to offer a reason for his failure to appear at the noticed hearing which would satisfy the good cause standard.
cc:
Manpower (Onalaska, WI)
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uploaded 2004/04/19