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Easterling v. Labor and Industry Review Commission

Court of Appeals of Wisconsin, District IV

February 2, 2017

Paulina S. Easterling, Plaintiff-Appellant,
v.
Labor and Industry Review Commission, Defendant-Respondent, Badger Bus Lines, Inc., Defendant.

         APPEAL from an order of the circuit court for Dane County No. 2014CV3228: JAMES R. TROUPIS, Judge. Reversed and cause remanded for further proceedings.

          Before Kloppenburg, P.J., Sherman and Blanchard, JJ.

          SHERMAN, J.

         ¶1 Paulina S. Easterling appeals a circuit court order that affirmed the decision of the Labor and Industry Review Commission (LIRC) denying Easterling's claim for unemployment benefits on the basis of substantial fault. As pertinent to our resolution of this appeal, LIRC based its decision on a finding that the conduct of Easterling that resulted in her termination was intentional, and not an "inadvertent error[], " as that phrase is used in Wis.Stat. § 108.04(5g) (2015-16).[1] For the reasons discussed below, we reverse the order of the circuit court and remand for further proceedings.

         BACKGROUND

         ¶2 In June 2014, Easterling was employed by Badger Bus Lines, Inc., as the driver of a van that transported individuals with special needs. Badger Bus Lines had a written "Wheelchair Tip Policy, " which provided in relevant part:

This policy seeks to inform all drivers about the serious matter of properly securing wheelchairs. Failure to properly secure wheelchairs can result in a wheelchair tipping during transport …. When a driver is providing service that transports wheelchair passengers and a wheelchair on that driver's vehicle tips … management will perform an investigation into the cause of the incident. If it is determined that the cause of the tipping was due to the driver not fully securing the wheelchair in the vehicle, it will result in termination of the driver's employment….

         In August 2013, Easterling signed a statement indicating that she understood the "Wheelchair Tip Policy, " and that she had been informed that a violation of the policy would result in the termination of her employment.

         ¶3 On June 22, 2014, Easterling was responsible for transporting a group of elderly passengers, one of whom was in a wheelchair. Easterling failed to secure that passenger's wheelchair to the floor of the van and, while Easterling was driving, the wheelchair tipped over. The following day, Easterling was informed that her employment was terminated because she had violated her employer's Wheelchair Tip Policy. We reference further details below in discussing LIRC's factual determinations.

         ¶4 Following the termination of her employment, Easterling applied to the Department of Workforce Development (DWD) for unemployment benefits. DWD determined that Easterling was ineligible for benefits because she was discharged from her employment for substantial fault. See Wis. Stat. § 108.04(5g). An administrative law judge (ALJ) affirmed DWD's decision to deny Easterling unemployment benefits, but the ALJ did so on a different basis. The ALJ determined that Easterling was discharged for misconduct, see § 108.04(5), and did not address the issue of substantial fault.

         ¶5 Easterling petitioned LIRC for review of the ALJ's decision. LIRC determined that Easterling's employment had not been terminated for misconduct. However, LIRC determined that Easterling had been discharged from her employment for substantial fault and was, on that basis, ineligible for unemployment benefits.

         ¶6 Easterling sought review of LIRC's decision by the circuit court. The circuit court affirmed LIRC's decision. Easterling appeals.

         DISCUSSION

         ¶7 Easterling contends that the circuit court erred in affirming LIRC's determination that she was ineligible to receive unemployment benefits because her employment had been terminated for "substantial fault" under a new provision in the law. See Wis. Stat. § 108.04(5g). We agree with Easterling, based on our conclusion that there is not credible and substantial evidence in the record on which reasonable persons could rely to make a decision that the alleged conduct by Easterling was intentional, and not an "inadvertent error[] made by the employee." See ยง 108.04(5g)(a)2 ("substantial fault" does not include "[o]ne or more inadvertent errors"). That is, relying without objection ...


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