VICTORIA R MITCHELL, Employee

POTAWATOMI BINGO CASINO, Employer

An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:

An initial determination adverse to the employee was issued on February 5, 2010. The employee timely appealed, and a hearing was scheduled for 9:45 a.m. on May 21, 2010, at the State Office Building in downtown Milwaukee. The employee did not appear, and the hearing request was dismissed as a result. The employee submitted an explanation for her failure to appear, and a hearing was held on the procedural issue on July 29, 2010.

The issue to be resolved whether the employee's failure to appear at the hearing was with good cause.

The employee arrived at the hearing location at approximately 9:25 a.m. and found a parking place. The employee had somewhere between $1.60 and $2.10 in change with her, enough for an hour or more of parking, which she fed into the meter. However, when the employee attempted to print her receipt, no receipt printed. She checked to see if any time appeared on her space number, and the screen indicated there was no time left. At 9:39 a.m. the employee telephoned the hearing office and explained that she was having problems with her parking meter and might be late. The employee was told that the administrative law judge would wait until 10:00 a.m., at which point the hearing would be dismissed. Thereafter the employee looked for additional change in her car and attempted to obtain change from a passerby, but without success. The employee had seen a parking attendant pass her car once already and, as she had outstanding parking tickets, was concerned her car would be towed. At 10:05 a.m. the employee called the hearing office again and stated she had been unable to get the meter to work and that she would be sending a good cause letter requesting a new hearing.

The administrative law judge found that there was no record of the employee's calls to the hearing office and, further, that the fact a parking attendant passed by without issuing the employee a ticket was an indication that there was adequate time on her meter. However, department records do indicate that the employee placed two calls to the department on the morning of the hearing to report the problem with the parking meter. The fact that a parking attendant passed the employee's car without issuing a ticket is not proof that she had time on her meter, and the employee's concern about incurring further tickets or having her car towed was understandable.

The employee arrived at the hearing location in time to appear at the hearing, but had difficulty with her parking meter. She contacted the hearing office prior to the hearing to apprise it of the situation. However, she was unable to remedy the problem in time to appear at the hearing. The employee made reasonable and prudent efforts to appear at the hearing and was not required to jeopardize her transportation in order to do so.

The commission, therefore, finds that the employee failed to appear at the hearing scheduled for May 21, 2010, but that such failure was with good cause, within the meaning of Wis. Stat. § 108.09(4) and Wis. Admin. Code ch. DWD 140.

The decision of the administrative law judge is reversed. Accordingly, this matter is remanded for a hearing on the merits of the case.

Dated and mailed September 30, 2010
mitchvi . urr : 164 : 1 PC 712 : PC 712 . 3

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

NOTE: The commission did not confer with the administrative law judge about witness credibility and demeanor. The commission's reversal did not depend on a differing assessment of witness credibility.

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]

uploaded 2010/11/02