|
COURT OF APPEALS DECISION DATED AND RELEASED May 21, 1996 |
NOTICE |
|
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-1192
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
CHARLES McMILLON,
Plaintiff-Appellant,
v.
LABOR AND INDUSTRY
REVIEW COMMISSION,
Respondent-Respondent,
BPS GUARD SERVICE,
Respondent-(In T.Ct.).
APPEAL from an order of
the circuit court for Milwaukee County:
WILLIAM D. GARDNER, Judge. Affirmed.
Before Wedemeyer, P.J.,
Fine and Schudson, JJ.
PER
CURIAM. Charles McMillon appeals from an order of the circuit
court affirming a decision by the Labor and Industry Review Commission, which
determined that McMillon was not entitled to unemployment compensation
benefits. The order of the circuit
court confirming the decision of the LIRC is affirmed.
McMillon was employed by
BPS Guard Service as a security officer.
During the course of his employment, McMillon was assigned to Donohue
Engineering Company. Donohue complained
to BPS that McMillon had been seen sleeping on the job and had not made all of
his required rounds. At a meeting with
the BPS operations manager and the BPS general manager, McMillon admitted that
he had not performed all of his rounds.
He also admitted filing false records regarding his rounds. He was terminated at this meeting.
McMillon applied for and
was denied unemployment compensation.
McMillon appealed this determination and a hearing was held. An administrative law judge found that
McMillon had been discharged for misconduct and was ineligible for unemployment
benefits. McMillon then appealed to the
LIRC. The LIRC affirmed the decision of
the ALJ. McMillon then sought review of
the decision by the circuit court, which affirmed the decision of the
LIRC.
On appeal, this court
reviews the decision of the administrative agency, not that of the circuit
court. Wisconsin Pub. Serv. Corp.
v. Public Serv. Comm'n, 156 Wis.2d 611, 616, 457 N.W.2d 502, 504 (Ct.
App. 1990). Findings of fact made by
the Commission are conclusive on the courts if there is any credible, relevant,
and probative evidence upon which reasonable persons could rely to reach a
conclusion. Princess House, Inc.
v. DILHR, 111 Wis.2d 46, 53, 330 N.W.2d 169, 175 (1983).
First, McMillon contends
that the LIRC's findings of fact are not supported by credible evidence because
the person from Donohue who accused him of not making the required rounds did
not appear at the unemployment eligibility hearing. Although a representative from Donohue did not appear at the
hearing, two employees of BPS testified that they were present at the meeting
where McMillon admitted that he had not made all of the required rounds. This testimony is sufficiently credible to
support the LIRC's findings. Although
McMillon later denied making the admission, the fact that McMillon's testimony
conflicts with that of the BPS employees is not grounds for reversing the
LIRC's findings. Eastex Packaging
Co. v. DILHR, 89 Wis.2d 739, 745, 279 N.W.2d 248, 251 (1979).
McMillon also argues
that there is no credible evidence to support the LIRC's decision that his
conduct constituted “misconduct” within the meaning of § 108.04(5), Stats.
Misconduct as used in § 108.04(5) “is limited to conduct evincing such
wilful or wanton disregard of an employer's interests as is found in deliberate
violations or disregard of standards of behavior which the employer has the
right to expect of his employee, or in carelessness or negligence of such
degree or recurrence as to manifest equal culpability, wrongful intent or evil
design, or to show an intentional and substantial disregard of the employer's
interest or of the employee's duties and obligations to his employer.” Boynton Cab Co. v. Neubeck,
237 Wis. 249, 259-260, 296 N.W. 636, 642 (1941).[1]
The record indicates
that McMillon was required to make his rounds every hour. He failed to make his rounds and then
falsified reports indicating that he had made the rounds. Failing to make rounds, virtually the only
requirement of this particular job, constitutes a wilful and substantial
disregard of BPS's interests and of McMillon's duties as an employee. We therefore affirm the order of the trial
court.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.