MARK A STRUBLE, Employee

WAL MART ASSOCIATES INC, 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 makes the following:

The employee worked about thirteen months as a tire and lubrication technician for the employer, a retail business. His last day of work was November 19, 2009 (week 47), when he was discharged.

The issue to be decided is whether the employee's discharge was for misconduct connected with his employment.

The employer has a policy that prohibited violence in the workplace. The employee was aware of the policy.

A few months after the employee began working for the employer, another worker began to make derogatory comments about the employee's work performance. The employee complained to the supervisors. In June of 2009, the employee's car was scratched with a key. The employee concluded that the worker had damaged the car. When the worker made derogatory comments about the employee's spouse and child, a supervisor spoke to the worker. On November 18, 2009, the employee was kneeling by a truck in order to remove a tire. The worker using vulgar words, told the employee to get away from the truck and pushed the employee, causing the employee to fall toward the truck. The employee stood up and swung, hitting the co-worker in the head. The employee stated he was protecting himself because with everything the co-worker had been doing, he did not know what the co-worker would do next. On the following day, the employee was discharged.

The employee argued that his discharge was not for misconduct connected with his work. The commission agrees.

The law is well settled that an employee, even provoked by verbal or physical assault cannot strike the provoker unless in imminent danger. Jackson v. Wendy's Old Fashioned Hamburgers (LIRC March 5, 2004); Daniel P. Donoghue v LIRC and Stock Lumber of Delavan, Case 04CV000003 (Wis. Cir. Ct., Rock Col, April 18, 2005). The employee's testimony in this case, that he was acting in a defensive manner because he feared what his co-worker would do to him next, was not disputed. The employee was kneeling and the co-worker yelled at him and shoved him in the back and the employee fell into the truck. The employee had been the victim of the co-worker's verbal abuse for some time and suspected that the co-worker had damaged his vehicle. As such, the employee in this case was not merely reacting to his co-worker's taunting and physical aggression but was worried that he was in imminent danger and was acting to defend himself.

The commission therefore finds that in week 47 of 2009, the employee was discharged by the employer but not for misconduct connected with his work, within the meaning of Wis. Stat. § 108.04(5).

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits, if otherwise qualified.

Dated and mailed July 22, 2010
strubma . urr : 145 : 6 MC 670

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The commission did not discuss witness credibility and demeanor with the ALJ prior to reversing her decision. It was not disputed that the co-worker not only harassed the employee on a continued basis, but that he approached the employee and pushed him. The employee's testimony that he was fearful and acting to defend himself was likewise undisputed.

cc: Wal-Mart, New Richmond

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uploaded 2010/08/11