Home > Workers Compensation > Whittlesey v. LIRC 2018AP2164

Whittlesey v. LIRC 2018AP2164

Apr. 2020

Court of Appeals, decided April 16, 2020

Per Curiam – Per Curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in Rule 809.23(3). Stats.


The Claimant-Employee (Claimant) worked as a line cook for a restaurant (Employer).  Claimant alleged he was subjected to multiple instances of offensive racial epithets that, despite reporting them to the Employer, did not stop. Claimant subsequently, voluntarily quit his employment and filed a claim for unemployment benefits.  It should be noted multiple employees were reported to have used the offensive racial epithets and management/ownership held a full-staff meeting to address appropriate workplace conduct.  The alleged behavior reportedly continued after the meeting.  Unemployment denied his claim because of the voluntary nature of him quitting and said there was no good cause for the termination that was attributable to the Employer.

To clarify, the Division defines good cause as “a valid, substantial reason for which the employer is responsible and which leaves the employee with no reasonable alternative but to quit”. Sec 108.04(7), Stats.

Claimant appealed the decision.  The ALJ who heard the matter reversed the Division’s decision stating Claimant’s decision to quit was reasonable because he perceived the racial insensitivity would not end.

The Employer appealed.  LIRC said it was Claimant’s burden to prove his quitting was for good cause attributable to the Employer.  LIRC determined the alleged exposure to the insensitive racial epithets did not meet this burden because the alleged incidents did not consistently come from one employee and ownership held a meeting to discuss appropriate workplace conduct after Claimant reported the multiple incidents.  Likewise, Claimant did not pursue reasonable alternatives to resolve the issue prior to voluntarily terminating his employment.

Claimant appealed to the Circuit Court of Wood County.  The Circuit Court added the Unemployment Division as a Defendant, and then, confirmed LIRC’s decision.  Claimant then appealed to the Court of Appeals.


When an employee voluntarily terminates their employment, who has the burden of proving/disproving whether that employee is disqualified from receiving benefits?  What subject matter is included in this proof/disproof?

What constitutes good cause attributable to the employer?


The Court of Appeals (CoA) discussed multiple issues in their discussion.  The most pertinent findings include:

The CoA noted Claimant did not need to pursue reasonable alternatives to resolve the alleged issues (racial misconduct) prior to quitting because the language of Sec. 108.04(7)(b), Stats., only states pursuit of alternatives prior to quitting may be a factor taken into consideration when analyzing whether benefits may be allowed, but does not create a statutory requirement.

Additionally, the CoA cited multiple LIRC decisions inconsistent with the decision involved here.  Specifically, they cited Greenwald v. CUNA Mutual Insurance Society, stating “the use of racial epithets is misconduct and grounds for dismissal without warning”.  They also cited Knoll v. S & P Midwest Carriers Inc., stating “harassment also may provide good cause attributable to the Employer to cause an employee to quit”.  Basically, the CoA stated there did not need to be a progressive discipline plan in place when racially based harassment is alleged and the employer has the burden of investigating and taking action on these types of allegations.

Further, the fact that the Employer had a meeting to discuss the allegations and discourage future behavior was not sufficient to resolve the situation based on the fact that the behavior continued after the meeting.  The CoA specifically referenced that handout given to the employees at that meeting that said, “persistent behavior was grounds for termination”.  The CoA said this implied that as long as Claimant wanted to remain employed, he would have to be subjected to offensive racial epithets as long as they were not “persistent”.

Even further, the CoA said the unemployment statute required the Employer to either pay unemployment benefits or take steps to not subject Claimant to offensive racial language.  Failure to do so would be deemed an omission or failure to act and attempts to correct are ineffective unless actual change is demonstrated; thus, Claimant’s voluntary quit would be with good cause attributable to the Employer.

The CoA also said LIRC failed to consider the “appalling nature of the language, the number of events, and the effect on Claimant as reasonably perceived by him,” Whittlesey v. LIRC.  Therefore, the combination of the racial epithets, the ineffective corrective actions, and the omissions of the Employer to establish “good cause attributable to the Employer” with regards to Claimant’s voluntary termination and benefits should be allowed.

A copy of the full decision can be read here: Whittlesey v. LIRC

If you have any questions on how this impacts your business or want to discuss other issues with this decision, please contact our office.