Masri v. State, 2012AP1047.

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtDAVID T. PROSSER
Citation850 N.W.2d 298,2014 WI 81,356 Wis.2d 405
PartiesAsma MASRI, Petitioner–Appellant–Petitioner, v. STATE OF WISCONSIN LABOR AND INDUSTRY REVIEW COMMISSION, Respondent–Respondent, Medical College of Wisconsin, Inc., Interested Person–Respondent.
Docket NumberNo. 2012AP1047.,2012AP1047.
Decision Date22 July 2014

356 Wis.2d 405
850 N.W.2d 298
2014 WI 81

Asma MASRI, Petitioner–Appellant–Petitioner,
Medical College of Wisconsin, Inc., Interested Person–Respondent.

No. 2012AP1047.

Supreme Court of Wisconsin.

Argued March 13, 2014.
Decided July 22, 2014.

[850 N.W.2d 301]

For the petitioner-appellant-petitioner, there were briefs by Lawrence G. Albrecht, Aaron P. McCann, Katie S. Lonze and First, Albrecht & Blondis, S.C., Milwaukee, and oral argument by Lawrence G. Albrecht.

For the respondent-respondent, the cause was argued by Steven C. Kilpatrick, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.

For the interested person-respondent, there was a brief by Amy Schmidt Jones, Kirk A. Pelikan, and Michael Best & Friedrich LLP, Milwaukee, and oral argument by Amy Schmidt Jones.

An amicus curiae brief was filed by Timothy W. Feeley, Sara J. MacCarthy, and Hall, Render, Killian, Heath & Lyman, P.C., Milwaukee, on behalf of the Wisconsin Hospital Association.


¶ 1 This is a review of a published decision of the court of appeals 1 affirming a circuit court order that affirmed a Labor and Industry Review Commission (LIRC) determination.

¶ 2 The case requires statutory interpretation to determine whether uncompensated interns are entitled to the anti-retaliation protections of Wis. Stat. § 146.997 (2007–08) 2—Wisconsin's health care worker protection statute. Because this case involves an administrative agency's interpretation of § 146.997, we must also determine the level of deference, if any, to grant LIRC, which, in conjunction with the Department of Workforce Development (DWD), is charged with administering the statute.

¶ 3 Asma Masri (Masri) was a doctoral student at the University of Wisconsin–Milwaukee (UWM) when she began work as a “Psychologist Intern” in the Division of Transplant Surgery at the Medical College of Wisconsin (MCW). MCW assigned Masri to the transplant surgery unit at Froedtert Hospital. MCW ended Masri's internship after she met with an MCW administrator to report “clinical/ethical” concerns. Masri contends that the termination of the internship violated Wis. Stat. § 146.997, which provides that certain health care employers and their employees may not take “disciplinary action against ... any person” who in good faith reports violations of state or federal laws, regulations, or standards. Wis. Stat. § 146.997(3)(a). Wisconsin Stat. § 146.997(1)(b) adopts the definition of “disciplinary action” given in Wis. Stat. § 230.80(2), namely, “any action taken with respect to an employee.” Wis. Stat. § 230.80(2) (emphasis added). Thus, the pivotal question in this case is whether Masri, as an unpaid intern, is an employee and therefore protected by Wis. Stat. § 146.997(3)(a).

¶ 4 LIRC determined that § 146.997 applies only to an employee, and that as an unpaid intern, Masri was not an employee.

[850 N.W.2d 302]

Granting due weight deference to LIRC's decision, the circuit court and the court of appeals both affirmed.

¶ 5 We conclude the following.

¶ 6 First, we accord LIRC's decision due weight deference because LIRC has experience interpreting the meaning of “employee” under various statutes and is charged with administering Wis. Stat. § 146.997. The fact that LIRC had not previously considered the specific question whether an unpaid intern is an employee is not enough to abate the due weight deference owed to the agency. See Jamerson v. Dep't of Children & Families, 2013 WI 7, ¶ 47, 345 Wis.2d 205, 824 N.W.2d 822.

¶ 7 Second, we agree with LIRC that Wis. Stat. § 146.997 applies only to employees, a category that does not include interns who do not receive compensation or tangible benefits. See Masri v. Med. Coll. of Wis., ERD No. CR200902766 (LIRC, Aug. 31, 2011). As Wis. Stat. § 146.997 does not define “employee,” we must give the term its ordinary meaning.3State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶ 45, 271 Wis.2d 633, 681 N.W.2d 110. After consulting the language, context, and structure of the statute, we conclude that LIRC's interpretation is reasonable, and there is no more reasonable interpretation. Because Masri received no compensation or tangible benefits, she was not an employee of MCW and was therefore not entitled to anti-retaliation protection under § 146.997(3)(a).


¶ 8 Masri was a doctoral candidate at UWM when she began working as an unpaid “Psychologist Intern” in MCW's Division of Transplant Surgery on August 27, 2008. Masri worked 40 hours a week and was introduced as a “Psychologist Intern.” She received an “all-access” badge for MCW and Froedtert Memorial Lutheran Hospital (Froedtert) 4 and had complete access to patient records. On November 19, 2008, Masri met with MCW Department of Surgery Administrator Jon Mayer (Mayer) to report “clinical/ethical concerns.” Masri alleges that after she reported a few complaints, Mayer ended the meeting so that he could discuss the report with Masri's supervisor, Dr. Rebecca Anderson (Dr. Anderson), MCW's Director of Transplant Psychological Services.5

[850 N.W.2d 303]

¶ 9 Effective November 24, 2008, Dr. Anderson ended Masri's internship. On August 6, 2009, Masri filed a standard-form retaliation complaint against MCW and Froedtert with the Equal Rights Division (ERD) of DWD. ERD matched the complaint with Wis. Stat. § 146.997 as the anti-retaliation law under which Masri might be protected.

¶ 10 On August 19, 2009, MCW responded to the complaint and argued that Masri was not covered by Wis. Stat. § 146.997 because she was not an employee. MCW noted that Masri was a student at UWM and was allowed to gain clinical experience at MCW only as part of UWM's educational program. Moreover, MCW claimed that it terminated Masri's internship due to concerns with her performance and that these alleged concerns began before Masri made her complaints to Mayer.6 MCW attached its policy on whistleblowing to its letter responding to the complaint. The MCW policy stated, “Wisconsin law (Wisconsin Statue [sic] 146.977) prohibits retaliatory action by a health provider against an employee who in good faith reports [violations of state or federal law or standards or violations of ethical standards].” (Emphasis added.) MCW also attached to its response letter a series of Dr. Anderson's notes about Masri's allegedly unsatisfactory performance beginning on October 28, 2008.

¶ 11 On September 11, 2009, in a letter to Equal Rights Supervisor James Drinan, Masri laid out the facts underlying her complaint. Masri claimed that Dr. Anderson applied for grants to obtain funding for Masri's position and that Dr. Anderson promised her health insurance and parking. Masri eventually received free parking at MCW but did not receive any compensation or health insurance. Masri also contended that Dr. Anderson was supposed to prepare an “Affiliation Agreement” contract that would be executed between MCW and UWM, 7 but Dr. Anderson did not prepare that contract.

¶ 12 On September 15, 2009, an Equal Rights Officer issued a Preliminary Determination and Order (Preliminary Determination) that dismissed Masri's complaint. The Preliminary Determination concluded that ERD did not have jurisdiction under

[850 N.W.2d 304]

Wis. Stat. § 146.997 because Masri was an unpaid intern, and therefore she was not an employee of either MCW or Froedtert.

¶ 13 Masri appealed the Preliminary Determination as it related to MCW on September 23, 2009.8 On appeal, Masri argued that the investigator failed to properly investigate the complaint and that the investigator's summary dismissal on jurisdictional grounds was improper. She sent a letter dated December 4, 2009, to the ERD Hearing & Mediation Section Chief in which she argued that even if an “employee” must be someone who receives compensation, that compensation may come in the form of “tangible benefits.” She argued that her all-access badge, office space, support staff, and networking opportunities constituted tangible benefits that made her an employee. She also asserted that “Dr. Anderson had promised her health insurance, employee parking, and financial grants-in-aid.”

¶ 14 On January 14, 2010, an administrative law judge (ALJ) for ERD affirmed the Preliminary Determination. The ALJ determined that Wis. Stat. § 146.997 is limited to employees and that Masri was not an employee because she received no financial compensation.

¶ 15 Masri filed a petition for review with LIRC on February 4, 2010. On August 31, 2011, LIRC issued a decision affirming the ALJ's decision and adopting his findings and conclusion as its own. Masri v. Med. Coll. of Wis., ERD No. CR200902766 (LIRC, Aug. 31, 2011). In its decision, LIRC cited Ratsch v. Mem'l Med. Ctr., ERD No. CR200504192 (LIRC, Mar. 10, 2006), for the proposition that Wis. Stat. § 146.997 applies exclusively to employees. Masri v. Med. Coll. of Wis., ERD No. CR200902766 (LIRC, Aug. 31, 2011). LIRC said that it had previously looked at compensation to determine employment status and noted that it is possible that a worker could be an employee based on tangible benefits other than salary. Id. However, LIRC rejected Masri's argument that she received tangible benefits that would make her an employee. Id. LIRC determined that Masri's alleged tangible benefits—the security badge, office space, parking, and support staff—all related to her duties and had no independent value. Id. In addition, networking opportunities were not tangible and could not be assigned value. Id.

¶ 16 LIRC also determined that the fact that Masri's supervisor told her she would have health insurance and had applied for grants was not enough to confer employee status on Masri since she never received those benefits. Id. Masri suggested that the university's internship handbook evidenced an employment relationship when it said that interns are...

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