STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

DERRICK D RICHARDSON, Employee

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05004012JV


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.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee's request for hearing is dismissed, and the department determination remains in effect.

Dated and mailed November 4, 2005
richade . usd : 115 : 4 PC 712.2

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION


In three hearing notices, one for this appeal and two for companion appeals, dated and mailed on September 29, 2005, the employee was informed that hearing on the merits of his claim would be held on Tuesday, October 11, 2005, at 12:00 noon, in Suite 306, 101 East Milwaukee Street in Janesville.

Information in the file indicates that the administrative law judge (ALJ) went on his lunch break at 11:10 a.m. on October 11; that the door to the hearing room (306) was locked during his absence; and, upon his return, the ALJ discovered a note from the employee which had been slipped under the door and which stated as follows:

This is Derrick Richardson. I was here at 10:50 and was not called. It's 11:46. I am going to work. Give me a call. I'll be back. 346-6910. Thank you.

Information in the file also indicates that the ALJ attempted to call the phone number provided by the employee in his note, but was told by the person who answered the phone that the employee did not live there; and indicates that the employee returned to the hearing room at 1:45 p.m.

In his written explanation, the employee states:

I thought I had to be here at 11:00 a.m. so I got here at 10:50. I couldn't find my mailed paper so I left at 11:46 to go to work. Then I left the wrong # to my phone on the note I left for the judge. I did not try to call anyone to learn when hearing was. I waited outside Rm 324 instead of 306 waiting room. I have twin boys who wrote on hearing notices.

The explanation offered by the employee appears to be that his sons wrote on his hearing notices and, as a result, he could not read the hearing time stated on the notices; he did not call the department to verify the hearing time; he was under the impression that the hearings were to commence at 11:00 a.m. so arrived at the hearing location at 10:50 a.m., but stood outside the wrong room; he left a note under the door of the correct room at 11:46 a.m., which included the wrong phone number, and left the building at that time; and he returned to the hearing room at 1:45 p.m. and, after discussing the matter with the ALJ, left the written explanation referenced above.

The standard for failing to appear at a hearing is "good cause." This is, a party who misses a hearing is entitled to further hearing if the party establishes good cause for its initial failure to appear. The courts have defined this standard to be "excusable neglect," that is, the neglect a reasonably prudent person might commit in similar circumstances. Kautzman v. Abraham Isaac & Jacob, UI Dec. Hearing No. 98606107MW (LIRC Dec. 23, 1998).

The circumstances present here are more closely akin to those in which a party misplaces or misreads a hearing notice, which the commission has held does not constitute good cause, (1)   than to those in which a party presents a rational explanation for having marked a wrong date or time on a calendar, which the commission has held does constitute good cause. (2)   According to the employee's version of events, he was aware that he was unable to discern the hearing time printed on the hearing notices, but took no action to contact the department to verify the hearing time. Instead, he relied on his memory, which was mistaken, and, as a result, was not present at the hearing location at the time the hearing was scheduled to commence. These were not the actions of a reasonably prudent person. See, Wilson Park Garden Apartments v. LIRC and Dale A. Thompson, Case No. 94-CV-010336 (Wis. Cir. Ct. Milwaukee County, May 23, 1994)(employer's incorrect assumption that hearing scheduled to commence at 9:30 a.m. not good cause for failure to appear at hearing noticed to commence at 9:00 a.m.).

As a result, the commission concludes that the explanation offered by the employee, even if proved, would not provide good cause for his failure to appear at the properly noticed hearing on the merits of his claim, and this appeal is properly dismissed as a result.



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Footnotes:

(1)( Back ) See, e.g., Hodge v. Minnesota Epilepsy, UI Hearing No. 98200114EC (LIRC June 8, 1998); Saylor v. McCain Foods USA, Inc., UI Hearing No. 03004741WR (LIRC Nov. 19, 2003).

(2)( Back ) See, e.g., Marshall v. The Eyecare Place, Inc., UI Hearing No. 03403082GB (LIRC Feb. 26, 2004).

 


uploaded 2005/11/07