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

Subject: Jesus Lopez  v.  LIRC and Willow Foods, Case No. 00-CV-0838 (Wis. Cir. Ct., Dane Co., November 7, 2000)

Digest Codes: MC 670

The employee was a sanitation worker for the employer, a food processing business. He is of Mexican origin and a co-worker had in the past made derogatory comments to him based his national origin. On the employee’s last day of employment, the co-worker made another such comment and the employee struck the co-worker in response. The employee’s wife, who also worked for the employer, then attempted to calm down the employee. But this was to no avail and the employee chased after the co-worker in an attempt to again strike him. When the employer subsequently questioned the employee about his actions the employee stated that he would do the same thing in the future if the co-worker provoked him. The employer therefore discharged him. The appeal tribunal found misconduct and LIRC affirmed.

On appeal, the employee argued that the ethnic slurs the co-worker made constituted such a severe provocation that the physical assault did not amount to misconduct. It was also emphasized that the employee had complained to his supervisor about the co-worker but the supervisor did nothing in response.

Held: The commission is affirmed.   Judge Flanagan disagreed with the commission’s "apparent" position that physical assault is per se misconduct, regardless of the degree of provocation. However, the judge acknowledged that there was factual disagreement concerning the nature and degree of provocation the employee had been subjected to on prior occasions, including whether there was an ongoing argument between the employee and the co-worker. Based on the commission’s inferences that there was an ongoing argument, he affirmed the finding of misconduct. 

[LIRC decision].  Appealed to the Court of Appeals. Affirmed February 21, 2002. [Court of Appeals decision]

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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