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

Subject: Gundlach, Ulla v. Butler Tile Sales and LIRC, Case No. 01 CV 8075 (Wis. Cir. Ct., Milwaukee Co., March 12, 2002)

Digest Codes: MC 668 - Relations with co-employees - Abusive or profane language; MC 669 - Relations with co-employees - Agitation or argument; PC 714.10 Evidence, Medical evidence; PC 715 Hearing, Procedures, Misc. - employee's hostile behavior towards co-workers was misconduct - employee had, but did not take, opportunities to introduce expert evidence that her behavior was caused by a psychological condition

The employee was discharged for repeatedly becoming involved in hostile and disruptive verbal exchanges with co-employees. She had been given a number of increasingly severe warnings and suspensions but continued in her behavior. An Initial Determination found her discharge to have been for misconduct, but an ALJ reversed and allowed. On appeal, LIRC ordered further hearing to allow additional testimony to be presented by the employer and to allow the employee to offer expert medical opinion concerning the connection between her behavior at work and any psychological disorder(s) which might exist and the existence of which might be relevant to the issue of her intent and thus to the question of misconduct. LIRC specifically ordered the Department to send the employee a UCB-474 form for her to use to present expert medical opinion at the further hearing which it ordered. At that further hearing, the employee presented no such evidence. Concluding that the employee's actions had been misconduct, and in the absence of medical evidence establishing an excuse for the actions, LIRC affirmed the misconduct decision.

On appeal to the circuit court, the employee argued that the Department had never sent her a UCB-474 form, and that the ALJ at the remand hearing had failed to carry out LIRC's instructions to obtain evidence on her medical condition. She also submitted medical reports to the court purporting to establish that her behavior had been caused by a psychological disorder.

Held: LIRC's decision is affirmed. The evidence in the record supports the findings made about the employee's conduct, and the conclusion that it was misconduct was reasonable. The real dispute is whether the employee had an appropriate opportunity to present medical evidence. The court decides that the evidence supports the finding that the employee was sent a UCB-474 form. Also, she and her counsel had both received the notice of hearing with LIRC's remand order referencing the need for the Form and its intended purpose, which was for medical evidence to be offered at the hearing. Despite being given that second chance, the employee did not offer the evidence.

[LIRC decision in this case]

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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uploaded 2002/03/15