COURT OF APPEALS DECISION DATED AND FILED October 13, 2010 A.
John Voelker Acting Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL
from an order of the circuit court for
Before Curley, P.J., Fine and Kessler, JJ.
¶1 PER CURIAM. Barbara Gandy, pro se, appeals the circuit court’s order affirming a decision of the Labor and Industry Review Commission. She argues that the Commission erred in concluding that she was fired for misconduct.[1] We affirm.
¶2 Gandy contends the Commission erred in concluding that her
absences from work due to her incarceration constituted “misconduct” under Wis. Stat. § 108.04(5) (2007-08).[2] What actions an employee took are questions
of fact. See Millonig v. Bakken,
112
¶3 Whether the employee’s actions constitute “misconduct” under Wis. Stat. § 108.04(5) is a
question of law. McGraw-Edison Co. v. DILHR,
64
¶4 According to Gandy’s testimony, she was incarcerated after a
traffic stop that occurred while she was on her lunch break on a day she was
working. She was incarcerated because
she had failed to appear to serve a previously imposed sentence. Korilyn Hecker, Gandy’s manager, testified
that Gandy was absent from work for half of her shift on the day she was
arrested and all day for the next three days.
The Commission found that Gandy missed three and one-half days of work
due to her incarceration and that she did not give notice when she failed to
return to work the first day or for two of the subsequent days. We affirm these factual findings because they
are supported by the testimony of Gandy and her supervisor. See Kannenberg, 213
¶5 Based on these factual findings, the Commission concluded that Gandy’s absences from work constituted misconduct under the statute because they were Gandy’s fault; she was incarcerated due to her conviction of a crime and subsequent failure to appear for her previously imposed sentence. This conclusion is consistent with other decisions in which the Commission has held that intentional behavior that leads to an employee’s incarceration and absence from work constitutes misconduct under Wis. Stat. § 108.04(5). See, e.g., Albrecht v. Farm & Fleet of Monroe, Inc., UI Hearing Decision No. 05003647JV (LIRC November 28, 2007).[3] Gandy has not shown that the Commission’s decision was unreasonable. Therefore, we affirm the Commission’s conclusion that Gandy’s absences from work due to her incarceration constituted misconduct.
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] We
review the decision of the Labor and Industry Review Commission, not the
circuit court. Bunker v. LIRC, 2002 WI
App 216, ¶13, 257
[2] All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[3] While Commission decisions are not binding authority, we may consider prior Commission decisions on review. See, e.g., Gilbert v. LIRC, 2008 WI App 173, ¶10, 315 Wis. 2d 726, 735, 762 N.W.2d 671, 675.