Wisconsin Labor and Industry Review Commission --
Summary of Wisconsin Court Decision relating to Unemployment Insurance

Subject: Joseph R. La Fata (Hearing No. 95201343RH) v. LIRC & School District No. 1, Town of Phelps, Case No. 96-Cv-41 (Wis. Circuit Court Vilas County, September 20, 1996)

Digest Codes: MC 640.05  MC 657  MC 668

The employe worked for four years as a custodian for a public school district. Approximately three years prior to his discharge he had received three warnings for poor work performance and a suspension for absenteeism. Eleven months prior to his discharge, the employe’s former co-worker was promoted to a supervisory position over him. The employe resented the promotion and frequently refused to take direction from the supervisor and would walk away from her when she would attempt to speak to him. He changed his shift times without authorization and failed to perform a number of work duties. On more than one occasion, he walked down the school hallway during school hours and make motions of a sexual nature as a crude joke.

The commission found misconduct. The employe had received warnings from the district administrator, the crude joke was not an isolated incident and the seriousness of such behavior during school hours was sufficient to warrant discharge without formal warning.

Held: Affirmed. The employe did receive sufficient warning and the supervisor gave credible testimony concerning the employe’s failure to perform his duties. She also credibly testified that the crude behavior in the hallways happened on more than one occasion. This behavior, in the setting in which it occurred, was serious enough to warrant discharge even without formal warning.

Please note that this is a summary prepared by staff of the commission, not a verbatim reproduction of the court decision.

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