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

Subject: Elzola Stanley (Hrg. No. 96601804MW) v. LIRC and Milwaukee Public Schools Division of Insurance Risk Management, Case 96-CV-005381 (Wis. Cir. Ct., Milwaukee Co., May 1, 1997)

Digest Codes: MC 610.25  PC 714.07

The employe was an elementary school teacher who was discharged for alleged use of excessive physical force with a young student. There was testimony at hearing of witnesses’ direct observations of the student’s upset demeanor and red marks on his face, and of statements made by the employe in which she admitted having taken and held the student by the chin. There was also testimony by employer witnesses as to statements made to them by the student concerning what had happened. The commission found that the employe had used excessive force and found misconduct. On appeal, the employe argued that the decision improperly rested on hearsay.

Held: Affirmed. The rules of evidence are not controlling in UC hearings. Hearsay may be admitted if it has reasonable probative value, subject only to the restriction that no finding made in disposition of an issue may be based solely on hearsay. In this case there were many factors supporting the findings, apart from the hearsay statements of the child. The commission made an assessment as to the employe’s credibility for which the court will not substitute its judgment. The hearsay was simply used in conjunction with other evidence. Because the hearsay was not the sole basis for the finding, it is not necessary for the court to decide whether it was within the "excited utterance" exception to the hearsay rule.

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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