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

JANELLE J BRAUDT, Employee

PLAZA 247 FITNESS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 11201907EC


On June 23, 2011, the department issued an initial determination finding that the employee quit her employment, but that her quitting, which she alleged was because she was being sexually harassed by the employer, was not within a statutory exception allowing benefits. The effect of the initial determination was that benefits were denied.

The employee filed a timely appeal of the adverse determination. However, before any hearing was held, the employee notified the hearing office that she wanted to cancel her appeal. On July 11, 2011, an administrative law judge issued a decision finding that the hearing request was withdrawn and that the initial determination remained in effect. The decision contains no "appeal by" date. In the box where that date would normally appear, the decision states, "Not Applicable." (1)

On June 22, 2012, an attorney for the employee submitted an appeal of the administrative law judge's decision on the employee's behalf. The employee's attorney contended that the employer had intimidated the employee into abandoning her unemployment claim by threatening to tell local authorities that she failed to report income to "the public assistance people."

Wisconsin Admin. Code § DWD 140.05 addresses withdrawals of appeals. The code provides, as follows:

(1) An appellant may withdraw its appeal at any time before the issuance of a decision on the merits by notifying the hearing office or by choosing not to continue to participate in a hearing. The administrative law judge shall issue a withdrawal decision after determining that an appeal has been withdrawn.

(2) An appellant may submit a request to retract its withdrawal and reinstate its appeal. The retraction request shall be in writing and state a reason for the request. The administrative law judge may not grant a request to retract a withdrawal unless the request establishes good cause for the retraction and is received within 21 days after the withdrawal decision was mailed to the appellant.

(3) If the hearing office receives a timely retraction request before the issuance of a withdrawal decision and the request establishes good cause for the retraction, the administrative law judge shall acknowledge the request by letter to the appellant. If a timely retraction request is received by the hearing office after issuance of the withdrawal decision and the request establishes good cause for the retraction, the administrative law judge shall issue a decision setting aside the withdrawal decision and the hearing office shall schedule another hearing.

(4) If the hearing office receives a retraction request before or after the issuance of a withdrawal decision and the request does not establish good cause for the retraction, the administrative law judge shall deny the request by letter to the appellant.

The commission has held that withdrawal decisions are appealable, notwithstanding the absence of appeal rights on the document. Glasschroeder v. A 1 A Plus, Hearing No. 03401009 (LIRC March 4, 2004). Correspondence from a party seeking to retract a withdrawal decision, received after the 21-day time period, will be treated as a late petition for review of the withdrawal decision. Watson v. City of Milwaukee, Hearing No. 8605996 (LIRC Jan. 5, 2009). The commission has also repeatedly held that the standard format of the department's withdrawal decision, which fails to explain appeal rights or to set forth a specific appeal deadline, constitutes a flaw sufficient to find that a party's failure to timely appeal is for a reason beyond its control. See, Luckett v. Independence First Inc., Hearing No. 0600487MD (LIRC Feb. 8, 2007), and cases cited therein. Under the circumstances, the commission concludes that, although the employee's request to retract her withdrawal was received after the 21-day time period, it was late for a reason beyond the employee's control.

The next question to decide is whether the employee established good cause to grant the retraction of her withdrawal. The employee contends that her request to withdraw her hearing request was made under duress, based on threats from her former employer that made her afraid to pursue her unemployment claim. The commission considers this to be a circumstance providing the employee with good cause to retract her withdrawal of the hearing request.

The commission, therefore, finds that the employee's request for hearing was withdrawn, within the meaning of Wis. Stat. § 108.09(4)(a).

The commission further finds that the employee's petition for commission review was late for a reason beyond her control, within the meaning of Wis. Stat. § 108.09(6)(a).

The commission further finds that the employee established good cause to retract her withdrawal, within the meaning of Wis. Admin. Code § DWD 140.05.


DECISION AND ORDER


The withdrawal decision of the administrative law judge is set aside. Accordingly, the request for hearing is reinstated and the matter remanded to the department for further action consistent with this decision.

Dated and mailed September 7, 2012

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

 

 


braudja . upr : 164 : 6

cc: Attorney Justin Peterson


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Footnotes:

(1)( Back ) The reverse side of the appeal tribunal decision has an "APPEAL RIGHTS" section mentioning a 21-day appeal deadline and a "WITHDRAWAL DECISION" section explaining that such decisions are not appealable but that a request to retract a withdrawal and reinstate the prior request for hearing may be made in writing, and that it must state the reason for retraction and be received within 21 days from the date of the date of the withdrawal decision.