Operton v. Labor & Industry Review Commission
2017 WI 46
| Wis. | 2017Background
- Operton worked as a full-time Walgreens service clerk (July 2012–March 2014), handling roughly 80,000 cash transactions.
- Over 21 months she made eight cash‑handling errors (WIC/check mistakes, PIN‑pad incomplete transaction, failure to check ID on a large credit‑card sale), none alleged to be intentional.
- Walgreens issued progressive discipline (verbal, written, final warnings, a two‑day suspension) and terminated Operton after the ID omission that led to a $399.27 loss.
- Operton applied for unemployment benefits; DWD ALJ and LIRC found no intentional misconduct but concluded termination was for “substantial fault,” denying benefits.
- The circuit court affirmed LIRC; the court of appeals reversed. The Wisconsin Supreme Court granted review, affirmed the court of appeals, and remanded to LIRC to determine benefits owed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Operton was disqualified from unemployment under Wis. Stat. § 108.04(5g) for "substantial fault" | Operton: her errors were inadvertent (statutory exception § 108.04(5g)(a)2.), so not substantial fault | Walgreens/LIRC: multiple errors after warnings show substantial fault | Held: Operton's eight errors over ~80,000 transactions were legally "inadvertent errors" and thus exempt from substantial fault; benefits allowed |
| Whether multiple inadvertent errors can become substantial fault | Operton: multiple inadvertent errors do not automatically become substantial fault; warnings are not dispositive under § 108.04(5g)(a)2. | LIRC: repeated errors plus final warning show failure to conform and substantial fault | Held: Multiple inadvertent errors do not automatically transform into non‑inadvertent ones; here they remained inadvertent as a matter of law |
| Standard and deference owed to LIRC's statutory interpretation | Operton: ALJ/LIRC provided no articulated statutory interpretation; court should independently construe statute | LIRC: its interpretation should receive deference | Held: Deference issue immaterial because LIRC did not articulate an interpretation; Court independently construed § 108.04(5g)(a)2. |
| Burden of proof on disqualification | Operton: employer bears burden to prove statutory disqualification | Walgreens: (argued to meet that burden) | Held: Employer bears burden; Walgreens did not meet it here |
Key Cases Cited
- Masri v. LIRC, 356 Wis. 2d 405, 850 N.W.2d 298 (Wis. 2014) (reviewing LIRC decisions; standard that appeals review LIRC, not circuit court)
- Brauneis v. LIRC, 236 Wis. 2d 27, 612 N.W.2d 635 (Wis. 2000) (LIRC findings of fact upheld if supported by substantial credible evidence)
- Harnischfeger Corp. v. LIRC, 196 Wis. 2d 650, 539 N.W.2d 98 (Wis. 1995) (framework describing levels of deference to agency statutory interpretations)
- County of Dane v. LIRC, 315 Wis. 2d 293, 759 N.W.2d 571 (Wis. 2009) (discussion of due‑weight deference and when to defer to agency)
- Racine Harley‑Davidson, Inc. v. Wis. Div. of Hearings & Appeals, 292 Wis. 2d 549, 717 N.W.2d 184 (Wis. 2006) (explanation of due‑weight deference; comparison of interpretations)
- UFE Inc. v. LIRC, 201 Wis. 2d 274, 548 N.W.2d 57 (Wis. 1996) (elaboration on due‑weight standard)
- Kalal v. Circuit Court for Dane County, 271 Wis. 2d 633, 681 N.W.2d 110 (Wis. 2004) (statutory interpretation principles)
- Queen Ins. Co. of Am. v. Kaiser, 27 Wis. 2d 571, 135 N.W.2d 247 (Wis. 1965) (definition of inadvertent as passive negligence/oversight)