P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)



ERD Case No. CR200202481

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.


The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed March 15, 2004
jasmich . rsd : 115 : 9

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner


In June of 2002, complainant Jasmin filed this charge with the Equal Rights Division, alleging that she had been terminated in violation of Wis. Stat. § 146.997, the Health Care Worker Protection Act (Act). Administrative law judge Olstad, on September 10, 2003, granted respondent's motion to dismiss, ruling that Jasmin's employer, the Douglas County Department of Human Services (DCDHS), did not satisfy the Act's definition of health care facility or health care provider. The commission agrees.

The Act protects from retaliation only those who are employees of a "health care facility" or of a "health care provider," and defines those terms in Wis. Stat. § 146.997 (1)(c) and (d).  Jasmin's employer, the DCDHS, is not the type of person or entity specified in either of these definitions. The governing statutory language is unambiguous on its face, i.e., a person is required to be an employee of a health care facility or of a health care provider to qualify for the Act's protection; and the terms "health care facility" and "health care provider" include within their ambit only those persons or entities specified.

Jasmin argues that it would be consistent with the public policy goals of the Act for all county employees, including employees of DCDHS, to be included within the scope of its protection. However, courts and quasi-judicial administrative agencies like the commission will not ordinarily engage in statutory construction unless a statute is ambiguous. Czapniski v. St. Francis Hosp., 2000 WI 80, 236 Wis. 2d 316, 613 N.W.2d 120 ("When a statute is plain and unambiguous, interpretation is unnecessary and intentions cannot be imputed to the legislature except those to be gathered from the terms of the statute itself.); Harris v. Kelley, 70 Wis. 2d 242, 234 N.W.2d 628 (1975); Storm v. Legion Ins. Co., 2003 WI 120, 265 Wis. 2d 169, 665 N.W.2d 353. This is so even when the legislature has directed that the subject statute be liberally construed. A court or administrative agency cannot, by engaging in liberal construction, change the wording of the statute to mean something which was not intended by the legislature or by the plain language used. Lukaszewicz v. Concrete Research, Inc., 43 Wis. 2d 335, 168 N.W.2d 581 (1969); Heinritz v. Lawrence University, ERD Case No. 9002788 (LIRC Sept. 30, 1993). See, also, AMC v. DILHR, 101 Wis. 2d 37, 305 N.W.2d 62 (1981)(the view that it is appropriate to import into the act all mechanisms which are not inconsistent with its purpose and spirit goes beyond the parameters of liberal construction which does not give a court the right to expand the terms of the legislation).

Moreover, it should be noted that, given the Act's reference to "county home," "county infirmary," "county hospital," and "county mental health complex," it would have to be concluded that the legislature intended to exclude from the Act's coverage other county entities such as county human services departments.

Attorney James W. Balmer
Attorney Oyvind Wistrom

Appealed to Circuit Court.

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uploaded 2004/03/16