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

Subject: Linda Merkel v. LIRC and Teach 'n' Toys, d/b/a The Learning Shop, Case 02 CV 002912 (Wis. Cir. Ct., Milwaukee Co., October 30, 2002); aff'd per curiam, Ct. Ap. District I, June 17, 2003.

Digest Codes: MC 610.06   MC 640.06  MC 690

On September 11, 2001, the employee had a phone conversation with an owner of the business, who told her he thought it was "retarded" to close the shopping malls in reaction to that day's terrorist attack. Later the employee sent an e-mail to about 20 other employees and managers of the employer, criticizing the employer's "management team" for having said that decisions being made for the safety of the population were "retarded". About a month later, the employee was fired because of the employer's dissatisfaction with her having sent other employees this e-mail criticizing a member of management. The LID found no misconduct and the ATD affirmed, the ALJ noting that he did not credit the employer's explanation for why it waited a month to act (the explanation was, that the employer had been busy with other matters relating to the closing of one of its stores). LIRC reversed, noting that unlike the ALJ it credited the employer's explanation for the delay. LIRC also noted that the employee had previously been counseled against sharing her challenges to decisions of management with other employees. LIRC concluded that the employee's actions in including the owner's "retarded" comment in an e-mail to other employees was a deliberate and substantial disregard of the employer's interests.

On appeal, the employee argued that her discharge a month after the incident was too remote from the conduct for a reasonable person to believe that she was discharged for wilful misconduct, and that she did not violate any work rules and was not warned. She also argued that LIRC's decision violated her constitutional right to freedom of speech, because it was based on the content of speech and LIRC's role in denying her UC benefits because of it, was adequate "state action".

Held: LIRC's decision is affirmed. LIRC's decision that the employer's explanation for the delay was credible is conclusive. LIRC reasonably concluded that the employee's conduct in communicating her criticism of management adversely affected the employer. Finally, the court rejects the employee's constitutional argument, concluding that the substance of her speech for which she was discharged her criticism of a statement made in a private conversation with her employer was not speech on a matter of public concern and was thus not protected.

[LIRC Decision].   Appealed to Court of Appeals.  Affirmed June 17, 2003, unpublished per curiam 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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