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

Subject: Adrian Gonzales v. LIRC, Arby's, and DWD, Case  No. 16 CV 8995 (Wis. Cir. Ct., Milwaukee Co., June 26, 2017)

Digest Codes: MC 602.1 and PC 757


Gonzales was employed by Arby's as an assistant manager. Arby's has a written “open door” policy, which allows workers to go to any person in authority to discuss any matter related to their employment. Arby's also has a written “Respect” policy, which prohibits “rude, abusive, or offensive language.” Arby's Handbook states that abusive, intimidating, or disruptive language may result in termination. Arby's discharged Gonzales after he sent text messages to a shift manager that Arby's deemed were retaliatory and threatening. Gonzales was upset because the assistant manager had complained about him to another assistant manager without speaking directly to him.


The department had originally denied benefits to Gonzales, finding that he was discharged for misconduct connected with his employment.[1] An appeal tribunal reversed the initial determination and allowed benefits. The ALJ found that Gonzales was not discharged for misconduct or substantial fault, because Gonzales' text messages expressed no retaliation or made any threats but simply expressed frustration about mistreatment Gonzales perceived to have taken place.


The commission reversed the appeal tribunal decision, holding that Gonzales was discharged for substantial fault connected with his work.[2] The commission found that Arby's reasonably required Gonzales to refrain from “rude, abusive, and intimidating conduct” and that it was within Gonzales's reasonable control to refrain from sending “angry and vulgar text messages” to the shift manager, who was his subordinate. The commission further found that Gonzales's actions could not be considered minor in nature because he abused his position of power and “clearly violated the very policies he was charged with enforcing.” Gonzales's conduct was not inadvertent or due to insufficient skill, ability, or equipment.


Held: Reversed by the circuit court. The court expressly denied that the commission's interpretation of the substantial fault statute should be given great weight deference, because the commission's experience with the statute does not satisfy all of the requirements of the Harnischfeger test.[3] The court noted that, while substantial fault is similar to misconduct, it is a completely new legal concept not previously in existence (citing Operton[4]). The court gave due weight deference to the commission's conclusion of law.


The court disagreed with the commission's finding that Gonzales's text messages rose to the level of being “abusive or intimidating,” because Gonzales did not threaten the shift manager in the text messages and did not use any retaliatory or harassing language. “If the Court was to find the angry text messages in this case rose to the level of retaliatory, threatening or harassing, it would be nearly impossible [for] employees to have any sort of disagreement and exchange communication about that disagreement without the fear of being discharged.”  Applying the due weight deference standard, the court held that it was more reasonable to conclude that the text messages sent by Gonzales simply expressed frustration and were a minor infraction of the employer's workplace policies. The court concluded, therefore, that no substantial fault occurred. Finally, the court concluded that the commission's interpretation of the substantial fault statute was not the most reasonable interpretation and that the commission's decision must be reversed.

[1] Wis. Stat. § 108.04(5).



[2] Wis. Stat. § 108.04(5g).

[3] See Harnischfeger Corp. v. LIRC, 196 Wis. 2d 650, 660, 539 N.W.2d 98 (1995) (second criterion for great weight deference is that the interpretation of the agency is one of long standing).



[4] Operton v. LIRC, 2016 WI App 37, ¶ 20, 369 Wis. 2d 166, 180 N.W.2d 169.

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