Masri v. State of Labor & Industry Review , 348 Wis. 2d 1 ( 2013 )

BRENNAN, J.

¶ 1. Asma Masri appeals from a circuit court order affirming the Labor and Industry Review Commission's ("LIRC") determination that she was not an employee protected by Wisconsin's health care worker protection statute, Wis. Stat. § 146.997 (2011-12),¹ and that, therefore, she was not entitled to a full review of her complaint by the Equal Rights Division ("ERD") of the Wisconsin Department of Workforce Development. For the reasons that follow, we affirm.

BACKGROUND

¶ 2. In August 2008, Masri, a doctoral candidate at the University of Wisconsin-Milwaukee, began an unpaid internship with the Medical College of Wisconsin ("MCW"). Masri's official title was "Psychologist Intern," and she was assigned to the transplant surgery unit at Froedtert Hospital. Masri worked forty hours a week and was provided with office space, support staff, free parking, full access to facilities and patient records, and professional networking opportunities. Masri's supervisor promised to provide her with health insurance coverage and the ability to pursue grants, but Masri received neither before her termination.

¶ 3. In November 2008, Masri met with an MCW official to report alleged medical ethics violations she asserts that she observed during her internship. Masri's internship with MCW was terminated soon thereafter.

¶ 4. Following her termination, Masri filed a retaliation complaint with the ERD, alleging that her termination violated Wis. Stat. § 146.997. An ERD officer issued a Preliminary Determination and Order, dismissing Masri's complaint on the grounds that the ERD did not have jurisdiction under § 146.997 because Masri was not an employee protected under the statute. An ALJ affirmed the Preliminary Determination and Order in January 2010.

¶ 5. Masri then filed a timely petition for review with LIRC. After considering the parties' positions and the evidence submitted by the ALJ, LIRC affirmed the ALJ's decision in August 2011.

¶ 6. In September 2011, Masri filed a petition for judicial review in Milwaukee County Circuit Court, seeking a reversal of LIRC's decision and a remand to ERD for a full investigation of her complaint. The circuit court affirmed LIRC's decision.

¶ 7. Masri now appeals from the circuit court's order and again seeks a reversal and remand to ERD for a full investigation.

DISCUSSION

¶ 8. Masri argues that Wis. Stat. § 146.997— entitled "Health care worker protection" — protects her from retaliation from MCW for reporting her medical ethics concerns. (Bolding omitted.) She argues that the statute's use of the word "person" indicates that the legislature intended the statute to protect both employees and non-employees from retaliation, and that even if the statute only covers employees, she was an employee at MCW at the time she reported her ethical concerns. We disagree, concluding that: (1) LIRC's decision should be afforded at least due weight deference; (2) LIRC's conclusion that § 146.997 only applies to employees is consistent with the clear meaning of the statute and is reasonable; and (3) LIRC's decision that Masri is not an employee is also consistent with the clear meaning of the statute and is reasonable. As such, we affirm.

I. Standard of Review.

¶ 9. We review LIRC's decision rather than that of the circuit court. Oshkosh Corp. v. LIRC, 2011 WI App 42, ¶ 6, 332 Wis. 2d 261, 796 N.W.2d 217. "We defer to LIRC's factual findings unless they are not supported by credible and substantial evidence." Id. Though questions of law are normally answered by the courts rather than administrative agencies, we "may accord deference to an agency's ruling on a question of law, such as statutory interpretation." Aldrich v. LIRC, 2012 WI 53, ¶ 92, 341 Wis. 2d 36, 814 N.W.2d 433.

¶ 10. In reviewing LIRC's statutory interpretations, Wisconsin courts traditionally apply one of three discrete levels of deference to LIRC's decisions: great weight, due weight, or no weight (de novo review). Racine Harley-Davidson, Inc. v. State of Wis. Div. of Hearings and Appeals, 2006 WI 86, ¶ 12, 292 Wis. 2d 549, 717 N.W.2d 184.

¶ 11. The greatest level of deference — great weight — requires that we defer to LIRC's interpretation unless its interpretation is irrational, even when we find another interpretation to be equally reasonable or more reasonable. Milwaukee Symphony Orchestra, Inc. v. Wisconsin DOR, 2010 WI 33, ¶ 35, 324 Wis. 2d 68, 781 N.W.2d 674. The Wisconsin Supreme Court has outlined the circumstances under which great weight deference is appropriate:

'Great weight' deference is warranted when (1) the agency is charged by the legislature with administering the statute in question; (2) the agency interpretation is of long standing; (3) the agency employed its specialized knowledge or expertise in interpreting the statute; and (4) the agency's interpretation will provide uniformity and consistency in the application of the statute.

Volvo Trucks N. Am. v. State of Wis. DOT, 2010 WI 15, ¶ 14, 323 Wis. 2d 294, 779 N.W.2d 423.

¶ 12. The middle level of deference — due weight —requires reviewing courts to sustain LIRC's interpretation as long as "it is not contrary to the clear meaning of the statute and no more reasonable interpretation exists." Milwaukee Symphony Orchestra, 324 Wis. 2d 68, ¶ 36. Due weight deference is warranted "when the agency is charged by the legislature with enforcement of the statute and has experience in the area, but has not developed expertise that necessarily places the agency in a better position than the court to interpret the statute." Id. An agency reaches this level of experience after it has had "at least one opportunity to analyze the issue and formulate a position." UFE Inc. v. LIRC, 201 Wis. 2d 274, 286, 548 N.W.2d 57 (1996). On appeal, a reviewing court may replace the agency's interpretation with a more reasonable one if one exists. Milwaukee Symphony Orchestra, 324 Wis. 2d 68, ¶ 36.

¶ 13. The lowest level of deference — no weight— allows reviewing courts to interpret the statute independently of LIRC and adopt the interpretation that they deem most reasonable. Id., ¶ 37. "Reviewing courts give no deference to an agency's statutory interpretation when any of the following conditions are met: (1) the issue presents a matter of first impression; (2) the agency has no experience or expertise relevant to the legal issue presented; or (3) the agency's position on the issue has been so inconsistent as to provide no real guidance." Id.

¶ 14. Masri argues that we should award LIRC's decision here no deference because the issue raised is one of first impression. We disagree and conclude that, at the very least, due weight deference is appropriate.

¶ 15. LIRC addressed whether Wis. Stat. § 146.997 pertains solely to employees on at least one other occasion in Ratsch v. Memorial Medical Center, ERD Case No. CR200504192 (Mar. 10, 2006). Furthermore, LIRC has extensive experience and expertise in deciding who is an employee under similar statutory schemes. See, e.g., Ficken v. Harmon Solutions Grp., ERD Case No. CR200003282 at *3 (Feb. 7, 2003); Langer v. City of Mequon, ERD Case No. 199904168 at *1-2 (Mar. 19, 2001); Hall v. School Dist. St. Croix Falls, WC Claim No. 2005-003827 (June 25, 2007).

¶ 16. In sum, we conclude that both prongs of the due weight deference test are satisfied here: (1) the parties do not dispute that the legislature has charged LIRC with administering the statute; and (2) we conclude that LIRC has addressed the issues on at least one other occasion. Having decided that LIRC's decision should be accorded due weight deference, and noting that we must uphold its decision unless that decision is contrary to the clear meaning of the statute and no more reasonable interpretation exists, we turn to the issues raised by Masri. See Milwaukee Symphony Orchestra, 324 Wis. 2d 68, ¶ 36.

II. LIRC's decision that Wis. Stat. § 146.997 only applies to employees is consistent with the statute's clear language and is reasonable.

¶ 17. Masri argues that Wis. Stat. § 146.997 protects all "individual[s] who suffered retaliatory treatment for reporting health care misconduct," rather than only protecting employees, as LIRC and the circuit court concluded. In support of her claim, Masri points to the legislature's use of the word "person" rather than "employee" in § 146.997(3). However, Masri's definition of "person," as explained in more detail below, requires us to ignore the language in the rest of § 146.997 directed solely at employees. Because Masri's interpretation of the statute is contrary to the statute's plain language and is therefore not more reasonable than LIRC's, we affirm.

¶ 18. Masri's argument presents an issue of statutory interpretation. The purpose of statutory interpretation is to discern the intent of the legislature. State v. Byers, 2003 WI 86, ¶ 13, 263 Wis. 2d 113, 665 N.W.2d 729. When we interpret a statute," '[w]e begin with the statute's plain language because we assume that the legislature's intent is expressed in the words it used.'" Orion Flight Servs., Inc. v. Basler Flight Serv., 2006 WI 51, ¶ 16, 290 Wis. 2d 421, 714 N.W.2d 130 (citation omitted). "If we conclude the statutory language is plain, then we apply its plain meaning." JP Morgan Chase Bank, NA v. Green, 2008 WI App 78, ¶ 24, 311 Wis. 2d 715, 753 N.W.2d 536. We must also interpret statutory language "in the context in which it is used" by considering words "not in isolation but as part of a whole." State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶ 46, 271 Wis. 2d 633, 681 N.W.2d 110. In addition, we read statutory language reasonably "to avoid absurd or unreasonable results." Id. " 'If this process of analysis yields a plain, clear statutory meaning, then there is no ambiguity, and the statute is applied according to this ascertainment of its meaning.' " Id. (citation omitted).

¶ 19. Masri's complaint arises from her disagreement with LIRC over the scope of Wis. Stat. § 146.997(3). The disputed text reads as follows:

No health care facility or health care provider and no employee of a health care facility or health care provider may take disciplinary action against, or threaten to take disciplinary action against, any person because the person reported in good faith any information under sub. (2)(a), in good faith initiated, participated in or testified in any action or proceeding under sub. (2)(c) or provided in good faith any information under sub. (2)(d) or because the health care facility, health care provider or employee believes that the person reported in good faith any information under sub. (2)(a), in good faith initiated, participated in or testified in any action or proceeding under sub. (2) (c) or provided in good faith any information under sub. (2)(d).

See § 146.997(3)(a) (emphasis added).

¶ 20. In order to determine the legislature's intent, we must look at the text of Wis. Stat. § 146.997 as a whole. Subsection (1) sets forth numerous definitions used in the statute, but does not define person. Subsection (2) sets forth the types of reports that are protected, recognizing the right to report certain legal, ethical, and clinical standard violations committed by a health care facility, health care provider, or an employee of either. Subsection (3) prohibits "disciplinary action" against those who make the types of reports protected under subsection (2). Subsections (4) and (5) set forth an enforcement mechanism and penalty for violating the prohibition against disciplinary action for making reports under subsection (2). Finally, subsection (6) lays out the statute's notification requirements.

¶ 21. While Masri correctly points out that the legislature uses the word "person" several times in Wis. Stat. § 146.997(3), she ignores the fact that the other subsections of the statute, which interplay with subsection (3), are limited to employees.

¶ 22. For instance, Wis. Stat. § 146.997(3) only prohibits disciplinary action taken against persons who make a protected report in good faith under §§ 146.997(2)(a), (2)(c), or (2)(d). But subsections (2)(a), (2)(c), and (2)(d) only permit employees to file reports, stating:

(a) Any employee of a health care facility or of a health care provider who is aware of any information .. . may report that information to any agency... of the state....

(c) Any employee of a health care facility or health care provider may initiate, participate in or testify in any action or proceeding in which a violation specified in par. (a)l. or 2. is alleged.

(d) Any employee of a health care facility or health care provider may provide any information relating to an alleged violation specified in par. (a)l. or 2. to any legislator or legislative committee.

See §§ 146.997(2)(a), (c), (d) (emphasis added). Because subsections (2)(a), (2)(c), and (2)(d) only permit employees to file reports, and subsection (3), by its plain terms, can only protect persons who have made a (2)(a), (2)(c), or (2)(d) report, it would be absurd to broadly interpret protected persons to include non-employees. See Kalal, 271 Wis. 2d 633, ¶ 46 (we read statutory language "to avoid absurd or unreasonable results").

¶ 23. Furthermore, Wis. Stat. § 146.997(l)(b) defines the " '[disciplinary action'" prohibited by § 146.997(3) as:

any action taken with respect to an employee which has the effect, in whole or in part, of a penalty, including but not limited to any of the following:

(a) Dismissal, demotion, transfer, removal of any duty assigned to the employee's position, refusal to restore, suspension, reprimand, verbal or physical harassment or reduction in base pay.

(b) Denial of education or training, if the education or training may reasonably be expected to lead to an appointment, promotion, performance evaluation or other personnel action.

(c) Reassignment.

(d) Failure to increase base pay, except with respect to the determination of a discretionary performance award.

See § 146.997(l)(b) (defining " '[disciplinary action'" as defined in Wis. Stat. § 230.80(2)). In other words, while subsection (3) prohibits "disciplinary action against, or threaten[ed] ... disciplinary action against, any person," because "[disciplinary action," by the statute's own definition, is limited to "action taken with respect to an employee," it would be contrary to common sense and reason to conclude that subsection (3)'s reference to "any person" included non-employees. See §§ 146.997(1), (3), and 230.80(2).

¶ 24. Wisconsin Stat. § 146.997(4)(a), the statute's enforcement provision, also requires us to conclude that § 146.997(3)'s reference to "person" is limited to employees. Section 146.997(4)(a) provides that "[a]ny employee of a health care facility or health care provider who is subjected to disciplinary action .. . may file a complaint with the department." (Emphasis added.) In short, the statute does not permit non-employees to file a complaint for retaliation for filing a protected report.

¶ 25. Given the text of the entire statute, it is clear that the legislature only intended to protect employees from retaliatory behavior for filing a protected report. It defies common sense to interpret Wis. Stat. § 146.997(3) as broadly protecting all individuals who make a protected report from disciplinary action, when the statute only permits employees to file a protected report or a complaint, and defines disciplinary action in terms of employment. As such, we affirm LIRC's decision that the statute only protects employees because its conclusion is consistent with the statute's plain language and Masri has not shown that her interpretation of the statute is more reasonable than LIRC's.

III. LIRC's conclusion that Masri was not an employee is consistent with Wis. Stat. § 146.997's plain language and is reasonable.

¶ 26. Masri further argues, contrary to the conclusions of LIRC and the circuit court, that even if Wis. Stat. § 146.997 only applies to employees, she qualifies AS AN EMPLOYEE UNDER THE STATUTE. HOWEVER, MaSRI FAILS TO CONVINCE US THAT LIRC's INTERPRETATION OF THE STATUTE TO THE CONTRARY IS INCONSISTENT WITH THE STATUTE'S LANGUAGE OR THAT HER DEFINITION OF THE WORD "EMPLOYEE" IS MORE REASONABLE THAN LIRC's. THEREFORE, WE AFFIRM.

¶ 27. Wisconsin Stat. § 146.997 does not explicitly define the term employee, and neither LIRC nor a court has ruled upon the statute's definition of the term. However, in other statutory schemes where the term employee has been left undefined or ambiguous by the legislature, courts have determined that some sort of compensation is essential to an employee/employer relationship. See e.g., C.R. Meyer and Sons Co. v. Grady, 194 Wis. 615, 623, 217 N.W. 408 (1928) ("One of the usual and ordinary tests, and, in many instances, the decisive test, which stamps one engaged in performing work an employee rather than an independent contractor, is the fact that wages are paid.") (worker's compensation); Klusendorf Chevrolet-Buick, Inc. v. LIRC, 110 Wis. 2d 328, 335, 328 N.W.2d 890 (Ct. App. 1982) (holding that while "wages are a necessary part of an employer-employe[e] relationship, the wages need not be money") (workers compensation).

¶ 28. Relying on that case law, LIRC has consistently looked to how an individual is compensated for his or her work when determining whether an individual is an employee, requiring that there be some tangible benefit received apart from salary. See, e.g., Fichen, ERD Case No. CR200003282 at *3 (holding that "compensation is an essential condition in the employee/employer relationship, and a person who is not eligible for compensation does not qualify for Title VII" and Wisconsin Fair Employment Act ("WFEA") coverage); Longer, ERD Case No. 199904168 at *1-2 (holding that the parties were not in an employment relationship under the WFEA where "the complainant was not on the respondents' payroll and received no tangible benefit in exchange for her services for the respondents"); Hall, WC Claim No. 2005-003827 (holding that an unpaid high school basketball coach was not an employee under the workers compensation statute). When the legislature uses a term that has obtained a settled meaning, we must infer, unless the text of the statute says otherwise, that the legislature intended for that settled meaning to apply. See Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-23 (1992).

¶ 29. Relying on those cases here, LIRC concluded that Masri was not an employee, stating:

[T]he complainant makes an argument that, under Longer, she could be considered an employee based solely upon "tangible benefits," even if she received no salary. [LIRC] does not find this argument persuasive. Accepting the possibility that there could be other "tangible benefits" of employment apart from salary, the complainant's assertions do not establish that she received such benefits. The complainant characterizes her "all access" security badge for the respondent's facilities, office space, support staff, and parking, as tangible benefits. However, parking, office space, and the like were provided to enable the complainant to perform her assigned duties and did not constitute a form of compensation. None of those items were for the complainant's personal benefit, nor did they have any value to her independent of her services for the respondent. The complainant also contends that she received tangible benefits in terms of networking and development opportunities that would benefit her future professional career. However, while networking may indeed be a benefit of her internship, it is not a tangible one nor something to which a value can be assigned.

In her brief the complainant also maintains that her supervisor promised her health insurance and applied for grants to compensate her work financially. However, neither a promise of health insurance that has not been made good on, nor a willingness to pay a salary at some future time, contingent upon the receipt of grant funding, is sufficient to render the complainant an employee of the respondent's.

¶ 30. LIRC's decision is not contrary to the clear language in Wis. Stat. § 146.997, and is firmly rooted in case law and past LIRC decisions. LIRC accepted Masri's argument that she could be considered an employee even without receiving any salary provided she received a tangible benefit from her internship. But LIRC concluded Masri received no tangible benefit. As such, LIRC's conclusion is reasonable. Futhermore, we agree with LIRC's conclusion. Office support that simply enabled Masri to perform her duties cannot be considered an independent tangible benefit and the concept of "networking opportunities" is not tangible and is too vague to be compensation. The promise of health insurance, which was never delivered, cannot be viewed as a benefit, especially because Masri continued to perform her internship without it. And the promise to apply for research grant funding did not convey any tangible benefit to Masri because receipt of funding was totally out of MCW's control. Because Masri has not shown that her conclusion that she was an employee is more reasonable than LIRC's, we are compelled to affirm.²

By the Court. — Order affirmed.

1 All references to the Wisconsin Statutes are to the 2011-12 version.

2 With respect to the Dissent's emphasis on the laudable public policy goals of the health-care whistleblowers statute, Wis. Stat. § 146.997, we note only that the issue in this case is a less global one. As the Dissent notes the whistleblower statute is triggered only if Masri was an employee. That determination is simply a matter of statutory construction, case law, and LIRC precedent. As we have shown, LIRC's interpretation of the law is reasonable. Masri received no tangible benefit from her internship and was not an employee under the statute.