Richland School Dist. v. Department of Industry, Labor, and Human Relations, Equal Rights Div.

• Decision Date: 29 April 1993
• Docket Number: No. 90-1750,90-1750
• Citation: 174 Wis.2d 878,498 N.W.2d 826
• Parties: , 61 USLW 2707, 82 Ed. Law Rep. 218 RICHLAND SCHOOL DISTRICT, Petitioner-Appellant-Cross Respondent-Petitioner, v. DEPARTMENT OF INDUSTRY, LABOR, AND HUMAN RELATIONS, EQUAL RIGHTS DIVISION, Respondent, James Ruder, Respondent-Cross Appellant.
• Court: Wisconsin Supreme Court

Page 826

498 N.W.2d 826

174 Wis.2d 878, 61 USLW 2707, 82 Ed.

Law Rep. 218

RICHLAND SCHOOL DISTRICT, Petitioner-Appellant-Cross Respondent-Petitioner, v. DEPARTMENT OF INDUSTRY, LABOR, AND HUMAN RELATIONS, EQUAL RIGHTS DIVISION, Respondent James Ruder, Respondent-Cross Appellant.

No. 90-1750.

Supreme Court of Wisconsin.

Argued Feb. 1, 1993.

Decided April 29, 1993.

For the respondent-cross appellant there was a brief by Melissa A. Cherney, Kathleen Heiman and Wisconsin Education Association Council, Madison and oral argument by Ms. Cherney.

Amicus curiae brief was filed by John W. Daniels, Jr., Mary Pat Ninneman, Ely A. Leichtling, Carmella A. Huser and Quarles & Brady, Milwaukee, for Personnel-Industrial Relations Ass'n, The Intern. Ass'n of Personnel Women, The Ass'n of Hosp. Personnel Administrators for Southeastern Wisconsin and the Wisconsin Soc. of Health Care Human Resources Admin.

Amicus curiae brief was filed by James B. Sherman and Wessels & Pautsch, P.C., Milwaukee, for MRA-The Management Ass'n.

Amicus curiae brief was filed by Timothy E. Hawks, Linda S. Quartaro and Shneidman, Myers, Dowling & Blumenfield, Milwaukee, for Wisconsin Federation of Teachers.

Amicus curiae brief was filed by Patrick T. Berigan, Milwaukee, for The Wisconsin Employment Lawyer's Ass'n.

Amicus curiae brief was filed by Michael J. Julka, Jill Weber Dean, Malina R. Piontek and Lathrop & Clark, Madison, for Wisconsin Ass'n of School Boards.

Amicus curiae brief was filed by Susan Brehm, Staff Atty., Madison for Center for Public Representation.

Amicus curiae brief was filed by Thomas W. Scrivner, Scott C. Beightol and Michael, Best & Friedrich, Milwaukee, for Wisconsin Ass'n of Mfrs. & Commerce.

Amicus curiae brief was filed by Betsy J. Abramson, Staff Atty., Madison, for Elder Law Center of the Coalition of Wisconsin Aging Groups.

SHIRLEY S. ABRAHAMSON, Justice.

This is a review of a published decision of the court of appeals, Richland School District v. DILHR, 166 Wis.2d 262, 479 N.W.2d 579 (Ct.App.1991), which affirmed a judgment of the Circuit Court for Richland County, William L. Reinecke, Circuit Judge.

The circuit court affirmed a make-whole order of the Department of Industry, Labor and Human Relations (DILHR) in favor of James Ruder against his employer, the Richland School District. DILHR concluded that the school district had erred in refusing to allow Ruder to substitute paid leave, accumulated under his union's collective bargaining agreement with the school district, for unpaid leave to which he was entitled under the Wisconsin Family and Medical Leave Act (FMLA), sec. 103.10, Stats.1989-90. DILHR also ordered the school district to pay Ruder $3,075.00 for attorney fees and costs incurred during the administrative proceedings under FMLA, sec. 103.10(12)(d), Stats.1989-90. The circuit court affirmed both parts of DILHR's order, and the court of appeals affirmed the judgment of the circuit court.

The circuit court refused to award Ruder reimbursement for attorney fees which he incurred in the circuit court for chapter 227 judicial review of DILHR's order. The court of appeals reversed the circuit court on this issue, directing the circuit court to determine and award to Ruder reasonable actual attorney fees for his representation in the circuit court and on appeal to the court of appeals.

For the reasons set forth below, we conclude, as did DILHR, the circuit court and the court of appeals, that Ruder is entitled to substitute the paid leave he accumulated under the collective bargaining agreement for unpaid family leave pursuant to sec. 103.10. We further conclude, as did the court of appeals, that Ruder may be reimbursed under sec. 103.10(12)(d), Stats.1989-90, for the reasonable actual attorney fees he incurred in the circuit court, court of appeals and supreme court for judicial review of the DILHR order, as well as in the proceedings before DILHR. Accordingly, we affirm the decision of the court of appeals.

This case presents two issues on appeal: The first issue is whether sec. 103.10(5)(b), Stats.1989-90, allows an employe to substitute paid leave accumulated under a collective bargaining agreement for unpaid family leave authorized by FMLA, when the employe has not met the conditions of leave eligibility set forth in the collective bargaining agreement. The second issue on appeal involves reimbursement of attorney fees and raises four questions. Did DILHR properly exercise its discretion in reimbursing the employe for attorney fees incurred at the administrative agency level? Does sec. 103.10(12)(d) authorize reimbursement of attorney fees incurred in a judicial review of a DILHR order? If an employe may be awarded attorney fees incurred in a chapter 227 judicial review of DILHR's order, do attorney fees for which the employe has incurred no personal liability constitute reasonable actual attorney fees under sec. 103.10(12)(d)? Should an employe be denied attorney fees beyond the agency level when his or her interests are represented in the courts by the administrative agency?

I.

The facts are stipulated for purposes of this appeal. James Ruder is a teacher employed by the Richland School District. The school district and the Richland Center Education Association have negotiated a collective bargaining agreement which governs the conditions of Ruder's employment. Article IX of that agreement, entitled "Leaves of Absence," provides that each certificated employe (teacher) "shall be granted 10 days of reimbursable leave each year accumulative to a maximum of 120 days." Certificated employes are credited with the 10 days of reimbursable leave for each school year on the first day of the inservice of that school year. Reimbursable leave is granted in cases of serious illness or injury to the teacher or a member of the teacher's immediate family; death of an immediate family member; court appearances; or "other unavoidable circumstances." The collective bargaining agreement does not provide for paid leave when a child is adopted. In the event that an employe exhausts all accumulated reimbursable leave, any additional leave taken by the employe is deducted from the employe's salary. When a teacher leaves the employ of the school district, all rights to accumulated reimbursable leave are terminated without compensation.

Ruder had accumulated 18 days of reimbursable leave under the collective bargaining agreement. On April 26 and again on May 8, 1989, after learning that a child would be placed with his family for adoption, Ruder requested five days of accumulated reimbursable leave to be used upon the child's arrival. Specifically, Ruder asked the school district that he be allowed to substitute, under 103.10(5)(b) of FMLA, five days of reimbursable leave accumulated under the collective bargaining agreement for the unpaid adoption leave provided by sec. 103.10(3)(b). ¹

Section 103.10(5)(b) allows an employe to substitute, for portions of unpaid family leave, paid or unpaid leave of any other type provided by the employer. Sections 103.10(5)(a) and (b) provide as follows:

Section 103.10(5). PAYMENT FOR AND RESTRICTIONS UPON LEAVE.

(a) This section does not entitle an employe to receive wages or salary while taking family leave or medical leave.

(b) An employe may substitute, for portions of family leave or medical leave, paid or unpaid leave of any other type provided by the employer.

The school district granted Ruder five days of unpaid leave but refused his request to substitute, under sec. 103.10(5)(b), reimbursable leave accumulated under the collective bargaining agreement for the unpaid statutory family leave available under sec. 103.10. Ruder filed a complaint with DILHR, alleging a violation of FMLA.

The circuit court and the court of appeals affirmed DILHR's order that the school district had violated sec. 103.10(5)(b) by refusing the substitution of leave and that Ruder be awarded reasonable attorney fees under sec. 103.10(10)(d) for his representation at the DILHR hearing. The circuit court concluded that Ruder was not entitled to reimbursement of attorney fees incurred in the circuit court; the court of appeals concluded he was entitled to attorney fees incurred in the judicial proceedings.

II.

The first issue is whether sec. 103.10(5)(b) permits an employe to substitute paid leave accumulated under a collective bargaining agreement for FMLA leave when the employe does not meet all the conditions of leave eligibility set forth in the collective bargaining agreement. The school district argues that substitution under sec. 103.10(5)(b) may only occur when the employe satisfies the conditions of leave eligibility expressly set forth in the collective bargaining agreement.

A.

Even though the case is before us on review of the decision of the court of appeals, we are in reality reviewing DILHR's order interpreting sec. 103.10(5)(b). Therefore we first consider the standard of review. The interpretation of a statute presents a question of law, and the "blackletter" rule is that a court is not bound by an agency's interpretation. Courts, however, give varying degrees of deference to agency interpretations of statutes and frequently refrain from substituting their interpretation for that of the agency charged with administration of the law. West Bend Educ. Assn v. WERC, 121 Wis.2d 1, 11-12, 357 N.W.2d 534 (1984).

This court has discussed the standard of review for DILHR's orders in two FMLA cases. In Kelley Co., Inc. v. Marquardt, 172 Wis.2d 234, 245-46, 493 N.W.2d 68 (1992), we concluded that the case presented a question of law of first impression in which the proper standard of review is "de novo."

In still another case involving FMLA, Jicha v. DILHR, 169 Wis.2d 284, 292-93, 485 N.W.2d 256 (1992), this court concluded that a hearing examiner's decisions are governed by the same standard of review as governs a DILHR decision. ² The hearing examiner's (characterized...