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

Subject: Αаrоn Wіntеrѕ  v. APB Security and LIRC, Case No. 09-CV-20135 (Wis. Cir. Ct., Milwaukee Co., July 12, 2010)    

Digest Code: MC 668

An appeal tribunal decision concluded that Wіntеrѕ engaged in misconduct within the meaning of Wis. Stat. §10S.04(5), based on Wіntеrѕ' interactions with another employee and his supervisor. At the hearing, the employer's secretary testified that Wіntеrѕ yelled at her after she denied his request to switch a work day for a personal reason.  In addition, Wіntеrѕ' supervisor testified that when he approached Wіntеrѕ to counsel him about behaving disrespectfully towards the secretary, Wіntеrѕ "suddenly went ballistic" and threatened to "kick [his] ass." LIRC credited the testimony of these witnesses over the testimony of Wіntеrѕ, who denied making any improper threats. As a result, LIRC concluded that Wіntеrѕ had been discharged for actions on his part which amounted to misconduct within the meaning of the law.

Held: AFFIRMED.  In the absence of fraud, LIRC's findings of fact are binding on court unless they are not supported by credible and substantial evidence. The role of the reviewing court is to search the record to locate credible evidence, which supports LIRC's decision, rather than weighing the evidence opposed to it.  LIRC's determination of whether an employee's conduct constitutes "misconduct" under Wis. Stat. §108.04(5) is entitled to great weight deference. Under the great weight standard, the Court must uphold an agency's reasonable interpretation of the statute if it is not contrary to the clear meaning of the statute, even if the Court concludes another interpretation is more reasonable.  The Court must therefore determine whether LIRC's decision in this case is reasonable. The burden of establishing that LIRC's interpretation is unreasonable is on the party seeking to overturn the agency's decision; the agency does not have to justify its interpretation.

The determinations that Wіntеrѕ made the physical threats are factual findings that are supported by the testimony of the employer's witnesses. The Court may not set them aside. It is entirely reasonable to conclude that physical threats constitute misconduct, even if no physical violence actually occurs. Threats cause workplace disruption by corroding working relationships and creating an atmosphere of fear. Workplace safety is a major concern for employers and employees alike, and threats of physical violence towards coworkers and supervisors should not be tolerated. The conclusion that Wіntеrѕ was discharged for misconduct is neither unreasonable nor contrary to the clear meaning of the statute. After considering the facts and the arguments advanced by the parties, LIRC reasonably concluded that Wіntеrѕ' actions constituted "misconduct" within the meaning of Wis. Stat. § 108.04(5), and that Wіntеrѕ was therefore ineligible for unemployment insurance benefits. LIRC's decision is reasonable in all other respects.


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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