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Operton v. Labor and Industry Review Commission

Supreme Court of Wisconsin

May 4, 2017

Lela M. Operton, Plaintiff-Appellant,
v.
Labor and Industry Review Commission, Defendant-Respondent-Petitioner, Walgreen Co. Illinois, Defendant.

          ORAL ARGUMENT: November 10, 2016

         Appeal of Circuit Court Dane County No. 2014CV3050 John C. Albert Judge.

         REVIEW OF A DECISION OF THE COURT OF APPEALS 369 Wis.2d 166, 880 N.W.2d 169 (2016 WI.App. 37 - Published)

          For the defendant-respondent-petitioner, there was a brief by William Sherlin Sample and Labor & Industry Review Commission, Madison, and oral argument by William Sherlin Sample

          For the plaintiff-appellant, there was a brief by Marilyn Townsend, and Law Offices of Marilyn Townsend, Madison, and oral argument by Marilyn Townsend.

          For Amicus Curiae Wisconsin Employment Lawyers Association, a brief was filed by Victor Forberger, Madison.

          For Amicus Curiae Wisconsin State AFL-CIO, a brief was filed by Matthew R. Robbins, Sara J. Geenen and The Previant Law Firm, Milwaukee.

          PATIENCE DRAKE ROGGENSACK, C.J.

         ¶1 This is a review of a published decision of the court of appeals[1] reversing a circuit court order that affirmed a determination by the Labor and Industry Review Commission (LIRC).[2] LIRC determined that Lela Operton (Operton) was ineligible for unemployment benefits because she was terminated for substantial fault.

         ¶2 We conclude that LIRC incorrectly denied Operton unemployment benefits. Operton was entitled to unemployment benefits because her actions do not fit within the definition of substantial fault as set forth in Wis.Stat. § 108.04(5g)(a)(2013-14)[3]. Stated more fully, Operton was terminated for committing "One or more inadvertent errors" during the course of her employment, and therefore pursuant to Wis.Stat. § 108.04(5g)(a)2., she was not terminated for substantial fault. We further conclude that, as a matter of law, Operton's eight accidental or careless cash-handling errors over the course of 80, 000 cash-handling transactions were inadvertent.

         ¶3 Accordingly, we affirm the court of appeals and remand to LIRC to determine the amount of unemployment compensation Operton is owed.

         I. BACKGROUND

         ¶4 The following undisputed facts, unless otherwise noted, are based on the findings of the Department of Workforce Development's (DWD) administrative law judge (ALJ) that LIRC adopted. From July 17, 2012 to March 24, 2014, Operton worked as a full-time service clerk for Walgreens. Operton's employment sometimes entailed more than one hundred cash-handling transactions in a day during the twenty months she was employed full-time by Walgreens. She completed an estimated 80, 000 cash-handling transactions[4] throughout her employment.

         ¶5 During her period of employment, Operton made various cash-handling errors. First, on October 19, 2012, Operton accepted a Women, Infants, and Children (WIC) check for $8.67 when the check should have been for $5.78. As a result, Walgreens lost $2.89 and gave Operton a verbal warning as punishment for her mistake.

         ¶6 Next, on February 12, 2013, Operton accepted a WIC check for $14.46, but did not get the customer's signature on the check. On March 6, 2013, she gave a $16.73 check back to a customer, and Walgreens suffered a $16.73 monetary loss as a result. Walgreens was unable to process these two checks and gave Operton a written warning for these two errors.

         ¶7 A few months later, Operton took a WIC check for $27.63 before the date on which it was valid. Walgreens was unable to process the check, and Operton received a final written warning.

         ¶8 On January 1, 2014, Operton returned a WIC check for $84.95 back to a customer that the customer had tried to use to purchase $84.95 worth of goods. Walgreens suffered a monetary loss of $84.95 because of this error and gave Operton an additional final written warning. And, on January 29, 2014, Operton received another final written warning as well as a two- day suspension after she accepted a check for $6.17 even though it was valid for $6.00, thereby causing Walgreens to lose seventeen cents. Soon after, a customer attempted to pay for $9.26 worth of items using a food share debit card, but the customer left the store without completing the transaction on the pin pad, which caused Walgreens to suffer a monetary loss of $9.26. Operton was issued another final written warning, which stated that any additional cash-handling errors would lead to her termination.

         ¶9 Furthermore, on March 22, 2014, Operton allowed a customer to use a credit card to purchase $399.27 worth of items, but did not check the customer's identification in violation of Walgreen's policy that employees must check a customer's identification on credit card purchases over $50. As a result, Walgreens suffered a monetary loss of $399.27. Walgreens later found out that the credit card was stolen when a manager was contacted by police.

         ¶10 As a result, on March 24, 2014, Walgreens terminated Operton's employment. Walgreens indicated that Operton was terminated due to multiple cash-handling errors as well as her inability to improve despite the accompanying warnings. Walgreens did not contend that any of Operton's errors were intentional or malicious.

         ¶11 After being terminated, Operton filed for unemployment benefits. Walgreens contested her request and contended that she was terminated due to an inability to perform her job. And, initially, the DWD denied Operton unemployment benefits based on misconduct.

         ¶12 Operton appealed and an ALJ for the DWD held an evidentiary hearing. At the hearing, the ALJ concluded that Operton was ineligible for unemployment benefits. The ALJ found that there was "no evidence that the employee intentionally or willfully disregarded the employer's interests by continuing to make cash-handling errors. Additionally, her actions were not so careless or negligent so as to manifest culpability or wrongful intent."[5] Accordingly, the ALJ concluded that Operton had not committed "misconduct connected with her employment."[6]

         ¶13 However, the ALJ denied Operton unemployment benefits and concluded that Operton was terminated for substantial fault. The ALJ reasoned that Operton "did not dispute that the transactions for which she was given disciplinary action occurred, nor did she provide any testimony to establish that she did not have reasonable control over the actions that led to her discharge. She was aware of the employer's policies, including the cash-handling and WIC check procedures, but continued to make cash-handling errors resulting in actual financial loss to the employer, after receiving multiple warnings."[7]

         ¶14 On September 19, 2014, LIRC adopted the findings and conclusions of the ALJ. Referring to the instance in which Operton failed to check an individual's identification when processing a credit card payment, LIRC stated: "This major infraction, taken together with the final warning regarding earlier cash transactions, persuades the commission that the employee's discharge was due to substantial fault."[8]

         ¶15 The circuit court affirmed LIRC's decision. In doing so, the circuit court deferred to LIRC in its entirety.

         ¶16 The court of appeals set aside LIRC's decision. The court concluded that LIRC "erred in its construction and application of 'substantial fault' to the facts presented."[9] The court of appeals reasoned that LIRC was owed no deference, and therefore de novo review was appropriate. Next, the court concluded, consistent with Wis.Stat. § 108.04(5g)(a), that an employee's multiple errors do not automatically transform the errors from inadvertent into intentional.[10]

         ¶17 This court granted LIRC's petition for review. We now affirm the court of appeals and remand to LIRC to determine the amount of unemployment compensation Operton is owed.

         II. DISCUSSION

         A. Standard of Review

         ¶18 "When there is an appeal from a LIRC determination, we review LIRC's decision rather than the decision of the circuit court." Masri v. LIRC, 2014 WI 81, ¶20, 356 Wis.2d 405, 850 N.W.2d 298. "LIRC's findings of fact are upheld if they are supported by substantial and credible evidence." Brauneis v. LIRC, 2000 WI 69, ¶14, 236 Wis.2d 27, 612 N.W.2d 635 (citing Hagen v. LIRC, 210 Wis.2d 12, 23, 563 N.W.2d 454 (1997)).

         ¶19 In contrast, this court is "not bound by an agency's interpretation of a statute." Harnischfeger Corp. v. LIRC, 196 Wis.2d 650, 659, 539 N.W.2d 98');">539 N.W.2d 98 (1995). However, "depending on the circumstances, an agency's interpretation of a statute is entitled to one of the following three levels of deference: great weight deference, due weight deference or no deference." Cty. of Dane v. LIRC, 2009 WI 9, ¶14, 315 Wis.2d 293, 759 N.W.2d 571.

         ¶20 "Which level is appropriate 'depends on the comparative institutional capabilities and qualifications of the court and the administrative agency.'" UFE Inc. v. LIRC, 201 Wis.2d 274, 284, 548 N.W.2d 57 (1996) (quoting State ex rel. Parker v. Sullivan, 184 Wis.2d 668, 699, 517 N.W.2d 449 (1994)). "Our basis for giving even due weight deference to an agency's statutory interpretation is bottomed on two required assumptions: the statute is one that the agency was charged with administering and the agency has at least some expertise in the interpretation of the statute in question." Racine Harley- Davidson, Inc. v. Wis Div of Hearings & Appeals, 2006 WI 86, ¶107, 292 Wis.2d 549, 717 N.W.2d 184 (Roggensack, J, concurring).

         ¶21 "In according due weight deference, we defer to an agency's statutory interpretation only when we conclude that another interpretation of the statute is not more reasonable than that chosen by the agency." Id., ¶105. As such, under due weight deference, the court is tasked with determining whether there is a more reasonable interpretation of the statute. "In order to decide that question, we make a comparison between the agency's interpretation and alternate interpretations. This comparison requires us to construe the statute ourselves." Id.

         ¶22 "We note here that there is little difference between due weight deference and no deference, since both situations require us to construe the statute ourselves. In so doing, we employ judicial expertise in statutory construction, and we embrace a major responsibility of the judicial branch of government, deciding what statutes mean." Cty. of Dane, 2009 WI 9, ¶19 (internal quotations omitted).

         ¶23 In the present case, the level of deference we afford LIRC is inconsequential as LIRC did not provide an articulated interpretation of Wis.Stat. § 108.04 in denying Operton unemployment benefits.[11] LIRC adopted the conclusions of the DWD's ALJ. But the ALJ did not describe its interpretation of the statute at issue, Wis.Stat. § 108.04(5g)(a).

         ¶24 Specifically, there are three types of actions exempted from the definition of substantial fault. However, the ALJ concluded that Operton's conduct did not fall within any of these categories without reasoning through each provision individually. Importantly, the ALJ never examined Operton's errors to determine if the errors were "inadvertent" under Wis.Stat. § 108.04(5g)(a)2.[12] The ALJ stated that "Operton was aware of the employer's policies, including the cash-handling and WIC check procedures, but continued to make cash-handling errors resulting in financial loss to the employer, after receiving multiple warnings."[13] It is unclear which prong of Wis.Stat. § 108.04(5g)(a) the ALJ was considering.

         ¶25 LIRC's decision adopting the findings and conclusions of the ALJ provided no clarification. Importantly, LIRC also did not discuss whether the errors that Operton committed were inadvertent and therefore a type of error exempted from the definition of substantial fault. LIRC merely stated:

The employee did not offer any explanation for not checking the ID which would lead the commission to conclude that she lacked the ability to conform her conduct to the employer's reasonable requirement to check ID for large credit card transactions. This major infraction, taken together with the final warning regarding earlier cash transactions, persuades the commission that the employee's discharge was due to substantial fault.[14]

         Absent from this reasoning is any discussion of "inadvertent errors" or the conduct the legislature explicitly exempted from the definition of substantial fault.

         ¶26 Accordingly, LIRC did not provide an articulated interpretation of the statute that it then applied. As such, whether we afford LIRC due weight deference or no deference is of no consequence. See deBoer Transp., Inc. v. Swenson, 2011 WI 64, ¶36, 335 Wis.2d 599, 804 N.W.2d 658 ("However, we agree with the court of appeals that we need not decide the applicable standard of review here because LIRC's statutory interpretation and application is unreasonable, and therefore, it will not withstand any level of deference." (citation omitted)). Therefore, we interpret Wis.Stat. § 108.04 under well-established principles of statutory interpretation to clearly explain the law.

         B. Statutory Interpretation, General Principles

         ¶27 It is axiomatic that "the purpose of statutory interpretation is to determine what the statute means so that it may be given its full, proper, and intended effect." State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶44, 271 Wis.2d 633, 681 N.W.2d 110. "We assume that the legislature's intent is expressed in the statutory language." Id. For this reason, "statutory interpretation 'begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry.'" Id., ¶45 (quoting Seider v. O'Connell, 2000 WI 76, ¶43, 236 Wis.2d 211, 612 N.W.2d 659). "Statutory language is given its common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning." Id., ¶45.

         ¶28 "Context is important to meaning." Id., ¶46. Accordingly, "statutory language is interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results." Id. (citations omitted).

         ¶29 Moreover, we need not consult extrinsic sources of interpretation if there is no ambiguity in the statute. Id. And, "a statute is ambiguous if it is capable of being understood by reasonably well-informed persons in two or more senses." Id., ¶47 (citing Bruno v. Milwaukee Cty., 2003 WI 28, ¶19, 260 Wis.2d 633, 660 N.W.2d 656). After all, "the court is not at liberty to disregard the plain, clear words of the statute." Id. (quoting State v. Pratt, 36 Wis.2d 312, 317, 153 N.W.2d 18 (1967)).

         ¶30 These principles guide our interpretation and application of Wis.Stat. ...


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