Wis. Dep't of Workforce Dev. v. Labor & Indus. Review Comm'n
| Decision Date | 10 May 2022 |
| Docket Number | 2020AP2002 |
| Parties | Wisconsin Department of Workforce Development, Plaintiff-Respondent, v. Labor and Industry Review Commission, Defendant-Appellant, Susan A. Wozniak and Meijer Stores Limited Partnership, Defendants. |
| Court | Court of Appeals of Wisconsin |
Not recommended for publication in the official reports.
APPEAL from an order of the circuit court for Milwaukee County: No 2020CV2371 WILLIAM S. POCAN, Judge. Affirmed.
Before Donald, P.J., Dugan and White, JJ.
¶1 The Labor and Industry Review Commission (LIRC) challenges a circuit court order reversing its decision to grant unemployment benefits to Susan A. Wozniak. As discussed below, we conclude that Wozniak's use of derogatory homophobic language about her coworker's sexual orientation constituted misconduct, pursuant to Wis.Stat § 108.04(5)(d) (2019-20), [1] and as a result, she is not entitled to unemployment benefits.
¶2 On October 17, 2017, Wozniak began working as a part-time greeter for Meijer Stores Limited Partnership (Meijer). Approximately, seven weeks later, Wozniak became angry that a coworker, who was supposed to be working with her as a greeter at the front of the store, was not doing his job. Wozniak expressed her irritation in a conversation with two cashiers. Several days later, one of the cashiers reported the conversation to management. The cashier reported that Wozniak had referred to the coworker as "pretty boy," "fairy," and "fruit loop," said that he was gay, and that "the way he skipped around the store made her sick." Neither of the cashiers testified at the hearing in this matter.
¶3 Management interviewed Wozniak. Wozniak denied calling her coworker a "fairy." She provided a written statement in which she admitted to calling her coworker a "pretty boy," and stated that if she mentioned other things, she "didn't mean it and should not have said it." Wozniak was suspended pending further investigation. Wozniak had not previously been subject to discipline.
¶4 On December 15, 2017, Meijer discharged Wozniak for making "discriminatory remarks towards a team member, calling him a 'fruit loop' and a 'fairy,' and commenting on how he skipped around and it made her sick."
¶5 Wozniak filed a claim for unemployment insurance benefits. Based on the information provided by Wozniak, the Department of Workforce Development (DWD) issued an initial determination on January 12, 2018. DWD found that Wozniak was discharged, but her discharge was not for misconduct or substantial fault connected with her employment. Benefits were, therefore, allowed.
¶6 Meijer appealed. A hearing on the matter was held before a DWD administrative law judge (ALJ). The ALJ found that Wozniak had referred to her coworker as a "pretty boy" and a "fruit loop." The ALJ reversed the initial determination, finding that Wozniak was discharged for misconduct, pursuant to Wis.Stat. § 108.04(5), and thus, was ineligible for benefits.
¶7 Wozniak petitioned for review of the appeal tribunal decision to LIRC. In a decision dated November 30, 2018, LIRC reversed the ALJ's decision, thus, allowing benefits. Two commissioners found that Wozniak was discharged, but not for misconduct, pursuant to Wis.Stat. § 108.04(5) and (5)(d), or substantial fault, pursuant to § 108.04(5g). One commissioner dissented, finding that Wozniak's comments regarding her coworker's sexual orientation constituted misconduct pursuant to § 108.04(5) and (5)(d), and also substantial fault, pursuant to § 108.04(5g).
¶8 DWD sought judicial review, and on August 16, 2019, the circuit court issued a decision finding that LIRC erred as a matter of law by defining harassment under Wis.Stat. § 108.04(5)(d) as requiring more than one act. The circuit court remanded the case to LIRC to issue a new decision based on the correct interpretation of the statute.
¶9 Following the remand, LIRC issued a new decision on March 12, 2020. LIRC again found that Meijer discharged Wozniak, but that her discharge was not for misconduct or substantial fault connected with her employment. Therefore, Wozniak was eligible for benefits.
¶10 DWD brought an action for judicial review of LIRC's second decision. The circuit court reversed. The circuit court found that LIRC erred in finding that Wozniak's comments did not constitute misconduct or substantial fault.
¶11 LIRC appealed that decision to this court. Additional relevant facts are referenced below.
¶12 "Wisconsin's unemployment compensation statutes embody a strong public policy in favor of compensating the unemployed." Operton v. LIRC, 2017 WI 46 ¶31, 375 Wis.2d 1, 894 N.W.2d 426. Not all employees, however, are entitled to unemployment benefits. Id., ¶33. An individual may be disqualified from receiving benefits if the employer establishes that the individual was discharged under a disqualifying provision. Id., ¶¶33, 38.
¶13 LIRC utilizes a three-step approach in analyzing discharges. First, LIRC determines whether the employee was discharged for misconduct by engaging in any of the actions enumerated in Wis.Stat. § 108.04(5)(a)-(g). If those provisions do not apply, LIRC then determines whether the employee's actions constitute misconduct under § 108.04(5), the codified misconduct definition from Boynton Cab Co. v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941). Finally, if misconduct is not found, LIRC then determines whether the discharge was for substantial fault, as set forth in § 108.04(5g).
¶14 In this case, LIRC contends Wozniak's discharge was not for misconduct within the meaning of Wis.Stat. § 108.04(5) or (5)(d), or substantial fault under § 108.04(5g).
¶15 As discussed below, we conclude that Wozniak's discharge was for misconduct within the meaning of Wis.Stat. § 108.04(5)(d) and, thus, we affirm the denial of benefits. As a result, we do not address whether Wozniak's discharge was for misconduct within the meaning of § 108.04(5) or substantial fault under § 108.04(5g). See State v. Blalock, 150 Wis.2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989) ().
¶16 "On appeal, we review LIRC's decision and not the circuit court's." City of Kenosha v. LIRC, 2011 WI.App. 51, ¶7, 332 Wis.2d 448, 797 N.W.2d 885. A reviewing court "may set aside an order of LIRC if LIRC acted 'without or in excess of its powers.'" DWD v. LIRC, 2018 WI 77, ¶12, 382 Wis.2d 611, 914 N.W.2d 625 (citing Wis.Stat. § 108.09(7)(c)6.a.). LIRC acts without or in excess of its powers if it bases its order on an incorrect interpretation of the law.
¶17 This case requires us to interpret Wis.Stat. § 108.04(5)(d). Statutory interpretation begins with the language of a statute. State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis.2d 633, 681 N.W.2d 110.
If the meaning of a statute is plain, we ordinarily stop our inquiry. Id. "Statutory language is given its common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning." Id. "A dictionary may be utilized to guide the common, ordinary meaning of words." Noffke ex rel. Swenson v. Bakke, 2009 WI 10, ¶10, 315 Wis.2d 350, 760 N.W.2d 156.
¶18 "Statutory interpretation is a matter of law which we review de novo, giving no deference to the agency's legal conclusions." Cree, Inc. v. LIRC, 2022 WI 15, ¶13, 400 Wis.2d 827, 970 N.W.2d 837. "Whether the facts of a case fulfill a legal standard is also a matter of law we review de novo." Id.[2]
¶19 Wisconsin Stat. § 108.04(5)(d) provides that "[o]ne or more threats or acts of harassment, assault, or other physical violence instigated by an employee at the workplace of his or her employer" constitutes misconduct. The statute does not define harassment.
¶20 Citing Black's Law Dictionary, LIRC defines "harassment" as "a term used in a variety of legal contexts to describe words, gestures, and actions which tend to annoy, alarm, and abuse (verbally) another person."[3] LIRC's decision further states that "[h]arassment may include verbal abuse, epithets, and vulgar or derogatory language, display of offensive cartoons or materials, mimicry, lewd or offensive gestures, and telling of jokes offensive to protected class members."
¶21 DWD agrees with LIRC's definition of harassment. DWD and LIRC disagree, however, as to whether Wozniak's homophobic comments constitute harassment.
¶22 We agree with DWD that Wozniak's homophobic comments qualify as harassment under Wis.Stat. § 108.04(5)(d). The agreed upon definition of harassment includes the use of "derogatory language." As the circuit court observed, Wozniak's comments, which included the use of "pretty boy" and "fruit loop," were "derogatory language" about the coworker's sexual orientation. Whether the comments were made directly to the coworker is of no consequence under the language of § 108.04(5)(d).
¶23 In support of its argument that Wozniak's comments did not constitute misconduct pursuant to Wis.Stat. § 108.04(5)(d), LIRC faults Meijer for not providing a specific definition of harassment, or examples of harassment, in its work rules. LIRC also argues that Meijer did not prove that Wozniak "knowingly" violated Meijer's work rules.
¶24 LIRC, however, reads additional requirements into Wis.Stat § 108.04(5)(d). Nothing in (5)(d) requires that an employer have an anti- harassment policy or rule. Nor does (5)(d) say that an employee must "knowingly harass" or "intend to harass" another. Rather, (5)(d) simply provides that "[o]ne or more threats or acts of harassment … instigated by an employee at the workplace of his or...
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