Spencer v. Labor & Indus. Review Comm'n

• Decision Date: 16 December 2014
• Docket Number: No. 2014AP1274.,2014AP1274.
• Citation: 859 N.W.2d 629 (Table),359 Wis.2d 677
• Parties: Lloyd A. SPENCER, Petitioner–Appellant, v. LABOR AND INDUSTRY REVIEW COMMISSION, Respondent–Respondent, Coca–Cola Refreshments, Inc., Respondent.
• Court: Wisconsin Court of Appeals

359 Wis.2d 677

859 N.W.2d 629 (Table)

Lloyd A. SPENCER, Petitioner–Appellant

v.LABOR AND INDUSTRY REVIEW COMMISSION, Respondent–Respondent

Coca–Cola Refreshments, Inc., Respondent.

No. 2014AP1274.

Court of Appeals of Wisconsin.

Dec. 16, 2014.

Opinion

¶ 1 PER CURIAM.

Lloyd Spencer appeals a judgment affirming a decision of the Labor and Industry Review Commission. The Commission determined Spencer was not entitled to unemployment compensation because he was fired for misconduct. Applying great weight deference, we conclude the Commission reasonably determined Spencer was fired for misconduct. We therefore affirm.

BACKGROUND

¶ 2 The underlying facts are essentially undisputed and are taken from the evidence presented to the administrative law judge (ALJ). Spencer was hired by Coca–Cola Refreshments, Inc., on July 2, 2001. He initially worked as a merchandiser but later became a delivery driver.

¶ 3 On January 13, 2011, Spencer called his supervisor, Shelli Stenz, to ask her about his route for the following day. When Stenz told him what his route would be, Spencer

made comments about he was f—ing sick of us putting all the f—ing work on him.... Made comments that [the] company worked him like an f—ing mule. I'm f—ing sick of you putting this—all this shit on me. He, ah, made comments that he [was] always the driver to clean up all the f—ing messes.¹

Stenz asked Spencer to meet with her when he returned to the building. Spencer responded, “[O]h, you better f—ing be there[,]” and hung up. Spencer later returned to the building, but he left without seeing Stenz. Stenz then called Spencer to ask him to come back for a meeting, but he stated, “I'm not going to waste my breath[ ] anymore, this is f—ing bullshit[,]” and again hung up.

¶ 4 Spencer received a written warning on January 26, 2011, as a result of this incident. The warning notified Spencer that Coca–Cola expected him to “conduct [himself] in a professional manner at all times and not engage in conversation using profanity towards [his] supervisor, [Coca–Cola] employees or customers.” The warning also indicated that future violations of company policy could result in dismissal.

¶ 5 A second incident involving Spencer occurred on July 31, 2012. Stenz was in a conference room with her manager and Coca–Cola's regional safety coordinator. Spencer was walking past the conference room to punch out at the end of the day, and Stenz's manager asked him how his day had been. Spencer did not respond, and when the manager asked him again, Spencer stated he was “ready to quit this f—ing shithole” and then “stormed out.”² Stenz chased after Spencer, but he “made a quick exit[.]” Stenz was given the choice whether to discharge Spencer at that point or “give him a second chance[.]” She chose to give him a second chance, but she also gave him a “stern coaching” and advised him Coca–Cola would not accept another similar outburst.

¶ 6 The incident that directly led to Spencer's discharge occurred on November 1, 2012. On that date, a store owner called an account manager at Coca–Cola and complained that Spencer had not properly shelved the products he delivered. Stenz then called Spencer and asked him to return to the store to address the owner's concern. Spencer went back to the store, but when he arrived, he informed the owner it was “ridiculous” to ask him to come back to restock a few bottles and move a stack of twelve-packs. Spencer later called the account manager and argued with him about being sent back to the store. During that conversation, Spencer told the account manager, “[I]f you want to start playing hardball you start pitching and I'll start swinging, I will call your manager on everything that you don't do.” Coca–Cola terminated Spencer's employment as a result of this incident on December 14, 2012.

¶ 7 Spencer subsequently applied for unemployment compensation. On January 23, 2013, the Department of Workforce Development issued an initial determination finding that Spencer was discharged for misconduct connected with his employment and was therefore ineligible for benefits, pursuant to Wis. Stat. § 108.04(5).³ Spencer appealed, and the matter was scheduled for a hearing before an ALJ.

¶ 8 Spencer and Stenz testified at the hearing. The written warning Spencer received on January 26, 2011, was introduced into evidence, as was Coca–Cola's policy regarding conduct in the workplace. In that policy, Coca–Cola describes itself as “one of the most respected companies in the world [,]” due to its exceptional products and customer service. The policy reminds employees that they are Coca–Cola to the company's customers, and it asks employees to “act in a way that would make [Coca–Cola] proud.” The policy lists several examples of inappropriate workplace behavior but also states it is “not possible to list all of the forms of behavior that are considered unacceptable [.]” Finally, the policy warns employees that corrective action will be taken if they fail to “live up to [Coca–Cola's] high standards[.]”

¶ 9 On February 18, 2013, the ALJ issued a decision reversing the Department of Workforce Development's initial determination. The ALJ reasoned Spencer “used poor judgment” when speaking to the store owner and account manager on November 1, 2012, but he did not use “vulgar language,” and his comments “were not so inappropriate as to result in termination of his employment.” The ALJ concluded Spencer's behavior did not rise to the level of misconduct under Wis. Stat. § 108.04(5), and he was therefore eligible for unemployment compensation, assuming all other requirements were met.

¶ 10 Coca–Cola filed a petition for review. On June 12, 2013, the Commission reversed the ALJ's decision, concluding Spencer was ineligible for benefits because he was fired for misconduct. The Commission reasoned:

[Spencer] had been warned regarding his insubordinate and disruptive behavior at work. In the final incident he responded rudely and inappropriately to the customer's concerns, and then proceeded to threaten the employer's account manager. His behavior was deliberate, and demonstrated a substantial disregard for the employer's interest in having him demonstrate a basic respect for his supervisors. His rude behavior towards the customer was also deliberate, and in substantial disregard of the employer's interest in good customer relations. His actions evinced a willful, intentional, and substantial disregard of the employer's interests and constituted misconduct connected with his employment.

The Commission also found that Spencer had received $5082 in unemployment benefits for which he was not eligible. Spencer was ordered to repay that amount to the Unemployment Reserve Fund.

¶ 11 Spencer appealed the Commission's decision to the circuit court, which affirmed in a decision filed April 18, 2014. Spencer now appeals.

DISCUSSION

¶ 12 On appeal, we review the Commission's decision, rather than that of the circuit court. ITW Deltar v. LIRC, 226 Wis.2d 11, 16, 593 N.W.2d 908 (Ct.App.1999). Whether an employee is entitled to unemployment insurance benefits under Wis. Stat. ch. 108 raises both factual and legal questions. See Nottelson v. DILHR, 94 Wis.2d 106, 115–16, 287 N.W.2d 763 (1980). Here, however, the parties do not dispute the underlying facts, and the only issue is whether those facts fulfill the legal standard for misconduct. “[The Commission's] determina-tion of whether an employee engaged in misconduct under Wis. Stat. § 108.04(5) is a legal conclusion [that] we review de novo but give appropriate deference.” Patrick Cudahy Inc. v. LIRC, 2006 WI App 211, ¶ 8, 296 Wis.2d 751, 723 N.W.2d 756.

¶ 13 Specifically, we may give the Commission's legal determination regarding misconduct great weight deference, due weight deference, or no deference. Id., ¶ 9. The parties agree that the Commission's application of the misconduct standard in this case is entitled to great weight deference. In addition, case law confirms that great weight deference is appropriate. See, e.g., Goetsch v. DWD, 2002 WI App 128, ¶ 9, 254 Wis.2d 807, 646 N.W.2d 389 ; Lopez v. LIRC, 2002 WI App 63, ¶ 16, 252 Wis.2d 476, 642 N.W.2d 561 ; Charette v. LIRC, 196 Wis.2d 956, 960, 540 N.W.2d 239 (Ct.App.1995).

¶ 14 Applying great weight deference, we will uphold the Commission's decision as long as it is reasonable. Lopez, 252 Wis.2d 476, ¶ 16, 642 N.W.2d 561. “A decision is unreasonable if it directly contravenes the words of the statute, is clearly contrary to legislative intent, or is without a rational basis.” Id. Spencer bears the burden to establish that the Commission's decision is unreasonable. Bunker v. LIRC, 2002 WI App 216, ¶ 26, 257 Wis.2d 255, 650 N.W.2d 864.

¶ 15 Wisconsin Stat. ch. 108 does not define the term “misconduct.” However, our supreme court has held that, for purposes of Chapter 108, misconduct is

conduct evincing such wil[l]ful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer.

Boynton Cab Co. v. Neubeck, 237 Wis. 249, 259–60, 296 N.W. 636 (1941).

¶ 16 Based on the evidence before it, the Commission could reasonably conclude Spencer's conduct met this standard. The undisputed facts showed that Spencer committed multiple acts of rude or insubordinate behavior toward his supervisors and a customer between January 2011 and November 2012. After the first incident, Spencer received a written warning reminding him he was expected to behave in a professional manner at all times and notifying him that future violations could result in dismissal. Following the second incident, Spencer received an oral warning that similar outbursts...