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COURT OF APPEALS DECISION DATED AND RELEASED December 5, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No.
96-1755
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
JESUS BARBARY,
Petitioner-Appellant,
v.
JAMES R. STURM, DILHR LABOR &
INDUSTRY REVIEW COMMISSION,
and BLACKHAWK TECHNICAL COLLEGE,
Respondents-Respondents.
APPEAL from an order of
the circuit court for Rock County: EDWIN C. DAHLBERG, Judge. Affirmed.
Before Dykman, P.J.,
Vergeront and Roggensack, JJ.
ROGGENSACK,
J. Jesus Barbary appeals a circuit court order confirming the
determination of the Labor and Industry Review Commission (LIRC) that Barbary
was ineligible for unemployment compensation benefits because he was discharged
for misconduct connected with his employment, within the meaning of
§ 108.04(5), Stats. Because LIRC's conclusion that Barbary was
discharged for misconduct connected with his employment is reasonable and not
contrary to the clear meaning of the statute, the order is affirmed.
BACKGROUND
Barbary began working as
a full-time custodian for Blackhawk Technical College on August 1, 1989. The last day he worked was February 8,
1995. During his shift that day,
Barbary was involved in an altercation with an off-duty co-worker, Charles
Stokes. At one point during the
dispute, according to Stokes, Barbary picked up a chair and threatened to
"bash [Stoke's] m*****f***ing brains out." Barbary maintains that Stokes initiated the confrontation, and
that he (Barbary) was merely lifting the chair to move it. After Stokes reported the incident, Barbary
was suspended pending investigation, and ultimately discharged from his
employment on February 21, 1995.
Barbary promptly applied
for unemployment compensation benefits.
On March 2, 1995, the Department of Industry, Labor and Human Relations
(DILHR) made an initial determination that the evidence available did not
establish misconduct and held him eligible for unemployment compensation. On April 14, 1995, after an evidentiary
hearing, an administrative law judge (ALJ) reversed the initial determination,
and ordered Barbary to repay $1,414.00 in benefits which he had already
received. The ALJ found Stokes'
testimony that Barbary had verbally and physically threatened him to be
"consistent, credible, and persuasive," and because Barbary's
"actions and behavior were intentional and in substantial disregard of the
employer's interests, the discharge was for misconduct connected with the
employment." Upon review, LIRC
adopted the findings and conclusions of the ALJ, and affirmed the decision to
deny benefits. The Rock County Circuit
Court in turn affirmed LIRC's decision, and Barbary appeals.
DISCUSSION
Scope
of Review.
This court reviews
LIRC's decision rather than that of the circuit court. Stafford Trucking, Inc. v. DILHR,
102 Wis.2d 256, 260, 306 N.W.2d 79, 82 (Ct. App. 1981). LIRC's factual findings must be upheld on
review if there is credible and substantial evidence in the record upon which
reasonable persons could rely to make the same findings. Princess House, Inc. v. DILHR,
111 Wis.2d 46, 54-55, 330 N.W.2d 169, 173-74 (1983); § 102.23(6), Stats.[1] A reviewing court may not substitute its
judgment for that of the agency as to the weight or credibility of the evidence
on any finding of fact. Advance
Die Casting Co. v. LIRC, 154 Wis.2d 239, 249, 453 N.W.2d 487, 491
(1989); § 102.23(6). Once the facts
are established, however, the determination of whether certain conduct is
"misconduct" within the meaning of § 108.04(5), Stats., is a question of law. McGraw-Edison Co. v. DILHR, 64
Wis.2d 703, 713, 221 N.W.2d 677, 683 (1974).
A court is not bound by
an agency's conclusion of law. West
Bend Educ. Ass'n v. WERC, 121 Wis.2d 1, 11, 357 N.W.2d 534, 539
(1984). However, it may defer to its
determination. The supreme court has
recently clarified both when to defer to an agency's legal conclusion, and how
much deference the courts should give. UFE,
Inc. v. LIRC, 201 Wis.2d 274, 284, 548 N.W.2d 57, 61 (1996) (citations
omitted). An agency's interpretation or
application of a statute may be accorded great weight deference, due weight
deference or de novo review.
Id. at 284, 548 N.W.2d at 61. We will accord great weight deference only when all four of the
following requirements are met:
(1) the
agency was charged by the legislature with the duty of administering the
statute; (2) ¼ the
interpretation of the agency is one of long‑standing; (3) ¼ the
agency employed its expertise or specialized knowledge in forming the
interpretation; and (4) ¼ the
agency's interpretation will provide uniformity and consistency in the
application of the statute.
Id., citing
Harnischfeger Corp. v. LIRC, 196 Wis.2d 650, 660, 539 N.W.2d 98,
102 (1995). We will accord due weight
deference when "the agency has some experience in an area, but has not
developed the expertise which necessarily places it in a better position to
make judgments regarding the interpretation of the statute than a
court." Id. at 286,
548 N.W.2d at 62. The deference allowed
an administrative agency under due weight is accorded largely because the
legislature has charged the agency with the enforcement of the statute in
question. Id. This court will not overturn a reasonable
agency decision that furthers the purpose of the statute unless we determine
that there is a more reasonable interpretation under the applicable facts than
that made by the agency. Id. We will employ de novo review
when the legal conclusion made by the agency is one of first impression, or
when the agency's position on the statute has been so inconsistent as to
provide no real guidance. Id.
(citations omitted).
Under the great weight
standard, "a court will uphold an agency's reasonable interpretation that
is not contrary to the clear meaning of the statute, even if the court feels
that an alternative interpretation is more reasonable." UFE, 201 Wis.2d at 287, 548
N.W.2d at 62. We conclude that great
weight deference must be accorded to LIRC's application of the facts to the
statutory standard set forth in § 108.04(5), Stats., because LIRC was charged with the duty of
administering the statute; it has long-standing experience in doing so, through
which it has developed expertise in interpreting what types of conduct rise to
the level of misconduct; and it gives consistency to statutory interpretation
to defer to the agency.
Misconduct.
An "employe whose
work is terminated by an employing unit for misconduct connected with the
employe's work is ineligible to receive [unemployment compensation]
benefits" until certain qualifying conditions are met. Section 108.04(5), Stats.
Misconduct has been defined by the supreme court to include:
...
conduct evincing such wilful or wanton disregard of an employer's interest as
is found in deliberate violations or disregard of standards of behavior which
the employer has the right to expect of his employee ....
Boynton
Cab Co. v. Neubeck et al., 237 Wis. 249, 259, 296 N.W.
636, 640 (1941). A single incident can
amount to misconduct where it endangers the safety of others. McGraw-Edison, 64 Wis.2d at
713, 221 N.W.2d at 683.
Barbary contends that
his actions did not rise to the level of misconduct because (1) he did not threaten
Stokes in the manner Stokes described; (2) even if he did threaten Stokes, he
did not actually cause any physical harm; and (3) his discharge was based on a
single, isolated incident. None of
these arguments are persuasive. First,
the determinations that Barbary used profane language and physically threatened
a co-worker are factual findings. They
are directly supported by the testimony of the co-worker, Stokes, whom the ALJ
found to be credible. Therefore, we may
not set them aside. Section 102.23(6), Stats.
Furthermore, it is reasonable to conclude that physical threats to
co-workers violate standards of behavior which the employer has the right to
expect. Even where no one is actually
injured, such threats are sufficient to cause a disruption in the work
place. Under the totality of the
circumstances presented by this case, we cannot say LIRC's conclusion that
Barbary was fired for misconduct connected with his employment is unreasonable
or contrary to the clear meaning of the statute. Therefore, we affirm LIRC.
CONCLUSION
LIRC's findings that
Barbary verbally and physically threatened a co-worker were supported by
substantial and credible evidence.
LIRC's conclusion that such threats constituted misconduct which
disqualified him from receiving unemployment benefits is reasonable and not
contrary to the clear meaning of the statute.
Therefore, we defer to LIRC and affirm.
By the Court.—Order
affirmed.
Not recommended for
publication in the official reports.