Jicha v. State Dept. of Industry, Labor and Human Relations, Equal Rights Div., 91-0238

• Citation: 485 N.W.2d 256,169 Wis.2d 284
• Decision Date: 23 June 1992
• Docket Number: No. 91-0238,91-0238
• Parties: Ralph JICHA, Petitioner-Respondent-Petitioner, v. STATE of Wisconsin DEPARTMENT OF INDUSTRY, LABOR AND HUMAN RELATIONS, EQUAL RIGHTS DIVISION, Respondents-Co-Appellants, and Fort Howard Corporation, Respondent-Appellant.
• Court: United States State Supreme Court of Wisconsin

Page 256

485 N.W.2d 256

169 Wis.2d 284

Ralph JICHA, Petitioner-Respondent-Petitioner, v. STATE of Wisconsin DEPARTMENT OF INDUSTRY, LABOR AND HUMAN

RELATIONS, EQUAL RIGHTS DIVISION, Respondents-Co-Appellants,

and

Fort Howard Corporation, Respondent-Appellant.

No. 91-0238.

Supreme Court of Wisconsin.

Argued May 28, 1992.

Decided June 23, 1992.

For the petitioner-respondent-petitioner there were briefs by Lise Lotte Gammeltoft and Zuidmulder, Appel & Gammeltoft, S.C., Green Bay, and oral argument by Lise Lotte Gammeltoft.

For the respondent-appellant there was a brief by Thomas E. Obenberger, Scott C. Beightol and Michael, Best & Friedrich, Milwaukee and oral argument by Thomas E. Obenberger.

For the respondent-co-appellant the cause was argued by Richard Briles Moriarty, Asst. Atty. Gen., with whom on the brief was James E. Doyle, Atty. Gen.

BABLITCH, Justice.

Ralph Jicha (Jicha) seeks review of a published court of appeals' decision. Jicha v. State, 164 Wis.2d 94, 473 N.W.2d 578 (Ct.App.1991). He argues that he filed his complaint against Fort Howard Corporation (Fort Howard) alleging a violation of the Wisconsin Family Medical Leave Act (FMLA) within the 30-day statute of limitation. The court of appeals held that since substantial evidence supported the hearing examiner's determination that Fort Howard had sufficient notice of Jicha's health condition when it terminated him, the 30-day period began running from the date Jicha received his termination letter even though the termination decision was then being reviewed by the company president. We agree. Accordingly, the judgment of the court of appeals is affirmed.

The relevant facts follow. In 1980, Jicha began his employment with Fort Howard as a machine operator. On October 18, 1988, Jicha was arrested and confined to the Brown County jail due to a complaint filed by his wife. Jicha was incarcerated in the Brown County jail from Tuesday, October 18, 1988, until Monday, October 24, 1988. On the first day of his incarceration, October 18, Jicha called Fort Howard and requested personal time off. He did not disclose that he was incarcerated. The following day, October 19, Jicha again called Fort Howard and stated that he would be late for work, apparently hoping that he would be released on bail. On October 20, Jicha's brother called Fort Howard and reported Jicha's absence.

On Friday, October 21, 1988, Jicha's attorney called and spoke with Fort Howard on three separate occasions. First, the attorney informed Fort Howard of the criminal complaint filed against Jicha. Next, he called to inform Fort Howard that Jicha's wife was expected to file a complaint that day seeking Jicha's involuntary commitment based upon alleged mental illness. During the third phone call, the attorney told Fort Howard that the petition would be filed on October 24, 1988, that Jicha would be placed temporarily at the mental health center, and that he believed Jicha would not be committed.

On October 24, 1988, Jicha's wife filed a petition with the Brown County Circuit Court requesting Jicha's involuntary commitment, and sometime that day Jicha was transferred from the jail to the Brown County Mental Health Center for examination. A detention order was filed pursuant to the petition, and a hearing was scheduled for October 25. The hearing was rescheduled, and on November 1, 1988, the petition was dismissed, and Jicha was released.

In a letter dated October 24, 1988, Fort Howard terminated Jicha for excessive absenteeism. ¹ Jicha received the termination letter from his wife on October 27, 1988. A second letter was sent on October 25, 1988, advising Jicha that his employment had been terminated effective October 24, 1988, and informing him of the consequences the termination of employment would have on various benefits available to him.

On November 2, 1988, Jicha met with Fort Howard officials and requested that the company's president review his termination pursuant to Fort Howard's Open Door Policy. Fort Howard's policy provides:

In the event of dismissal, the employee may request an interview with the President of the Company for the purpose of reviewing the case. Whether the employee requests it or not, the case is automatically reviewed by the President. After the discharge is effective, the employee's complete personnel file, along with a clear explanation of the facts and the reason for the discharge, is submitted to the President of the Company. If the President feels that discharge was too severe, the employee is reinstated with full seniority and could receive back pay for the period of suspension from active employment. If the President agrees with the previous decision, the employee remains discharged.

This Open Door Policy has resulted in the reinstatement of a number of employees.

On November 9, 1988, Jicha presented the circumstances surrounding his termination to the president and requested reinstatement. On December 15, 1988, Jicha was informed that the president refused to reinstate him.

On January 13, 1989, Jicha filed a complaint with the Department of Industry, Labor and Human Relations Equal Rights Division (DILHR), alleging that Fort Howard violated the FMLA by discharging him for absences protected under the act. ² The Equal Rights Division investigated the claim and dismissed it upon a finding of no probable cause to believe the FMLA was violated. Jicha appealed the dismissal, and on March 27, 1990, a hearing was held before a DILHR hearing examiner. The hearing examiner granted Fort Howard's motion to dismiss concluding that the alleged violation occurred as a result of the October 24, 1988 termination, and that Jicha had not filed his complaint within 30 days. ³ The circuit court reversed reasoning that in order for an employer to violate the FMLA, the employer must be aware of the employee's medical condition, and since the record was unclear on that issue, dismissal was inappropriate. Fort Howard and DILHR appealed to the court of appeals, and the court of appeals reversed. We granted Jicha's petition for review.

We begin with a discussion of the appropriate standard of review. A hearing examiner's factual findings will be upheld if supported by substantial evidence. Section 227.57(6), Stats. This court has generally applied three levels of deference to conclusions of law and statutory interpretation in agency decisions. Sauk County v. WERC, 165 Wis.2d 406, 477 N.W.2d 267 (1991). First, if the administrative agency's experience, technical competence, and specialized knowledge aid the agency in its interpretation and application of the statute the agency determination is entitled to "great weight." Id. at 413, 477 N.W.2d 267. The second level of review provides that if the agency decision is "very nearly" one of first impression it is entitled to "due weight" or "great bearing." Id. at 413-414, 477 N.W.2d 267. The lowest level of review, the de novo standard, is applied where it is clear from the lack of agency precedent that the case is one of first impression for the agency and the agency lacks special expertise or experience in determining the question presented. Id.

The parties disagree as to the appropriate deference to be given to the hearing examiner's conclusions of law in this case. Jicha argues that none of the above mentioned standards govern this case as they are standards governing agency determinations. Citing MPI Wi. Machining Div. v. DILHR, 159 Wis.2d 358, 464 N.W.2d 79 (Ct.App.1990), he maintains that since the FMLA allows direct appeal of an examiner's decision and order to the circuit court, with no intervening review by the commission, the decision is not that of an agency but rather a decision of a single hearing examiner. As such, the decision is entitled to no more deference than that given to a single circuit judge and should therefore be reviewed de novo. We disagree.

As Jicha suggests, sec. 103.10(13), Stats., provides for direct circuit court review after the completion of the administrative proceeding, and unlike the Fair Employment Act there is no provision providing for intervening review by the commission. However, sec. 103.10(12)(b) and Wis.Adm.Code Sec. Ind 86.21(3) explicitly provide that decisions resulting from an administrative proceeding concerning the FMLA are those of DILHR rather than of a single hearing examiner. Wisconsin Adm.Code Sec. 86.21(3) provides: "[t]he decision of the administrative law judge [hearing examiner] ⁴ shall be the final decision of the division and the department for purposes of judicial review...." Therefore, contrary to the court of appeals' decision in MPI and Jicha's assertions before this court, administrative decisions concerning the FMLA are those of the agency and as such are governed by the same rules concerning agency discretion discussed above. We now turn to the application of those rules to the case before us.

DILHR went through a rulemaking process and carefully considered the provisions of the FMLA and adopted administrative rules interpreting the statute. See Wis.Adm.Code Sec. Ind 86. Furthermore, as Fort Howard and DILHR point out, although the FMLA is a relatively new act, as it was adopted in 1988, the Equal Rights Division of DILHR has experience and expertise in administering and interpreting the provisions of a closely analogous statute, the Wisconsin Fair Employment Act (WFEA). They also correctly point out that, although the statutes of limitation provisions differ in some respects between the FMLA and the WFEA, the general principles regarding the interpretation of the statutes of limitation are similar. See, sec. 111.39(1), Stats., ("[t]he department may receive and investigate a complaint ... if the complaint is filed with the department no more than 300 days after the alleged discrimination or unfair honesty testing occurred.") In sum, through its rulemaking process DILHR has gained experience and expertise concerning this statute....