Paulina S. Easterling, Plaintiff-Appellant,
Labor and Industry Review Commission, Defendant-Respondent, Badger Bus Lines, Inc., Defendant.
from an order of the circuit court for Dane County No.
2014CV3228: JAMES R. TROUPIS, Judge. Reversed and cause
remanded for further proceedings.
Kloppenburg, P.J., Sherman and Blanchard, JJ.
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). For the reasons
discussed below, we reverse the order of the circuit court
and remand for further proceedings.
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
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
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.
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.
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
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.
Easterling sought review of LIRC's decision by the
circuit court. The circuit court affirmed LIRC's
decision. Easterling appeals.
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 § 108.04(5g)(a)2
("substantial fault" does not include "[o]ne
or more inadvertent errors"). That is, relying without