Lela M. Operton, Plaintiff-Appellant,
Labor and Industry Review Commission, Defendant-Respondent-Petitioner, Walgreen Co. Illinois, Defendant.
ARGUMENT: November 10, 2016
of Circuit Court Dane County No. 2014CV3050 John C. Albert
OF A DECISION OF THE COURT OF APPEALS 369 Wis.2d 166, 880
N.W.2d 169 (2016 WI.App. 37 - Published)
the defendant-respondent-petitioner, there was a brief by
William Sherlin Sample and Labor & Industry Review
Commission, Madison, and oral argument by William Sherlin
the plaintiff-appellant, there was a brief by Marilyn
Townsend, and Law Offices of Marilyn Townsend, Madison, and
oral argument by Marilyn Townsend.
Amicus Curiae Wisconsin Employment Lawyers Association, a
brief was filed by Victor Forberger, Madison.
Amicus Curiae Wisconsin State AFL-CIO, a brief was filed by
Matthew R. Robbins, Sara J. Geenen and The Previant Law Firm,
PATIENCE DRAKE ROGGENSACK, C.J.
This is a review of a published decision of the court of
appeals reversing a circuit court order that
affirmed a determination by the Labor and Industry Review
Commission (LIRC). LIRC determined that Lela Operton
(Operton) was ineligible for unemployment benefits because
she was terminated for substantial fault.
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). 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.
Accordingly, we affirm the court of appeals and remand to
LIRC to determine the amount of unemployment compensation
Operton is owed.
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 throughout her
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.
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.
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
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.
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.
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.
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.
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." Accordingly, the ALJ
concluded that Operton had not committed "misconduct
connected with her employment."
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."
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
The circuit court affirmed LIRC's decision. In doing so,
the circuit court deferred to LIRC in its entirety.
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." 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.
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.
Standard of Review
"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)).
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.
"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).
"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
"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).
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. LIRC adopted the conclusions of the
DWD's ALJ. But the ALJ did not describe its
interpretation of the statute at issue, Wis.Stat. §
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. 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." It is unclear which prong of Wis.Stat.
§ 108.04(5g)(a) the ALJ was considering.
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
from this reasoning is any discussion of "inadvertent
errors" or the conduct the legislature explicitly
exempted from the definition of substantial fault.
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.
Statutory Interpretation, General Principles
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.,
"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.
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
These principles guide our interpretation and application of