Wisconsin Labor and Industry Review Commission --
Summary of Wisconsin Court Decision relating to Unemployment Insurance


Subject: Alfred J. Bonnell  v. Young Men's Christian Association of Fond du Lac and LIRC, Case No. 10-CV-47 (Wis. Cir. Ct., Fond du Lac Co., August 27, 2010)

Digest Codes:   MC 666.01   PC 733

The employer had a valid policy addressing unlawful sexual harassment, of which the employee was aware and  had a copy.   The employee engaged in a pattern of spending time in the childcare area, flirting with and trying to get dates with female employees, and had a complaint made against him to the director. In addition, the employee made numerous after work hours telephone calls to a female employee from the childcare area on two different lines causing the employee to be "very upset".  The YMCA manager spoke to the employee about the phone calls made at the employee's home and he was told not to do that.  The employee was also warned that he was not to be trying to get dates or flirt with the female employees or that there would be discipline if he continued to do so. Moreover, after being so warned, the employee continued to engage in non-work conversations with a female co-worker of a sexual suggestive nature, which made the female co-worker feel harassed and uncomfortable. Lastly, the employee after being confronted by the Human Resources Director, did not deny the allegations, but rather laughed it off and made further inappropriate remarks and indicated he would not change his behavior and that he would do it again.  He was discharged.  An ALJ found the discharge was not for misconduct, but LIRC disagreed and issued a decision which reversed to find misconduct.  LIRC did not consult with the ALJ concerning credibility, instead stating that it reversed the ALJ's decision because it reached a different conclusion when it applied the law to the facts found by the ALJ.

Held: Affirmed. 

 The scope of judicial review of LIRC decisions is narrow. The Court may set aside a LIRC decision on errors of fact, only if LIRC acted without or in excess of its powers by rendering a decision which depends upon a material and controverted finding of fact that is not supported by credible and substantial evidence. See, Wis. Stats. §102.23 . Thus, LIRC's findings of fact are conclusive if there is any credible, relevant, and probative evidence, which when construed most favorably to the result arrived at by LIRC, would justify persons of ordinary reason and fairness to make such findings. See, R. T. Madden, Inc. v. DILHR, 43 Wis. 2d 528, 548 (1969). When there are competing inferences that may be drawn from the evidence, the LIRC finding is conclusive on the Court, when supported by the evidence.

The legal issue of the employee's misconduct, is a question of law and therefore reviewable by the Court. See, Wis. Stats. §108.04(5), and McGraw-Addison Co. v. DILHR, 64 Wis. 2d 703 (1974). Findings by LIRC regarding misconduct are to be given great weight deference. Bernhardt v. LIRC, 207 Wis. 2d 292, 305 (Ct. App. 1996). Thus, this Court should uphold LIRC's reasonable interpretation as long as it is not contrary to the clear meaning of the statute, even if the Court feels that an alternative interpretation is as reasonable or even more reasonable. UFE Inc. and Pacific Indemnity Company v. LIRC and Huebner, 201 Wis. 2d 274 (1996).

The Court has reviewed the LIRC decision, the briefs of the plaintiff and defendant, and the referenced record, and is satisfied that the essential facts of this case are basically not in dispute. The Court finds that the findings of fact made by LIRC are clearly supported by credible and substantial evidence in the record. With all of the above findings of fact supplied by the record, even though the Plaintiff asserts to the contrary, those are matters for LIRC to determine based on the assessment of credibility of witnesses and other factors. Based upon the factual findings LIRC made, LIRC was authorized by law to render the conclusion of law that the Plaintiff's actions were indeed misconduct within the meaning of § 108.04(5), Wis. Stats. This was a reasonable conclusion and therefore the LIRC decision must be affirmed.

The Court recognizes the Plaintiff's best argument is that the ALJ had ruled in his favor, before LIRC ruled against him. However, LIRC is not obligated to rubberstamp the ALJ ruling, and it is acknowledged that LIRC must consult with the ALJ  "In regard to material findings of fact based on an appraisal of the credibility of witnesses." Carley Ford, Lincoln, Mercury v. Bosquette, 72 Wis. 2d 569, 575 (1976). The requirement of consultation only arises where credibility of witnesses is a substantial element. Wright v. Industrial Commission, 10 Wis. 2d 653, 659 (1960). The Court is satisfied that there were no significant issues of credibility.  The facts are essentially undisputed.  In this case the ALJ arrived at one legal conclusion based upon the same undisputed facts, and LIRC arrived at another.  However, it was within LIRC's power to do that and that is no basis for the Court to overturn the LIRC decision when there was no legal obligation of consultation since credibility of witnesses was not at issue. 


Please note that this is a summary prepared by staff of the commission, not a verbatim reproduction of the court decision.

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