|
COURT OF APPEALS
DECISION
DATED AND RELEASED
December 10, 1996
|
NOTICE
|
|
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats.
|
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports.
|
No. 96-0866
STATE
OF WISCONSIN IN
COURT OF APPEALS
JANE HAUSMAN AND
KAREN WRIGHT,
†Plaintiffs-Appellants,
v.
ST. CROIX CARE CENTER,
INC.,
Defendant-Respondent.
APPEAL from an order of
the circuit court for Pierce County:
ROBERT W. WING, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
MYSE, J. Jane Hausman and Karen Wright appeal the
trial court's order granting St. Croix Care Center, Inc.'s, motion to dismiss
the complaint for failing to state a claim upon which relief can be
granted. Hausman and Wright contend
that § 50.07(1)(e), Stats.,
creates a private cause of action for retaliatory discharge against one who
discloses abuse or neglect of elderly nursing home residents. Hausman and Wright further claim that such
retaliatory discharge is a violation of the public policy of the State of
Wisconsin and that the Center's failure to properly post the identity of the
appropriate agency to which reports of abuse and neglect are to be directed
presents a claim for misrepresentation.
Because this court concludes that no private right of action is created
by § 50.07(1)(e) and that the complaint fails to state a claim for violations
of public policy and misrepresentation, the court's order dismissing the
complaint is affirmed.
The complaint alleges
the following facts. Wright is a licensed
practical nurse and worked at St. Croix Care Center as a resident care
coordinator. Hausman is a licensed
social worker and was the director of social services at the Center. Wright and Hausman were part of a
five-person interdisciplinary care team responsible for insuring that the
residents' needs were being met on a continuing basis. Concerns arose as to whether falls from beds
resulting in injury were being adequately investigated, the sufficiency of the residents'
nutritional diet and whether certain staff members' disrespectful treatment of
residents was being fully addressed.
When the Center failed to respond to these expressed concerns, the care
team approached the Center's administrator with their concerns. Nothing was done despite a follow-up visit
with the Center's director. When the
Center failed to take appropriate action, the care team contacted the regional
ombudsman for the board on aging and long-term care and the bureau of quality
compliance, a division of the State Department of Health and Social Services,
to request an investigation of the care provided to the Center's residents.
Pursuant to the
ombudsman's suggestion, Hausman contacted family counsel members, who are
relatives of the Center's residents, and approached the Center's board of
directors with these concerns. Hausman
was subsequently suspended and ultimately her employment was terminated. The Center contends this action was taken
due to performance problems. Three
months later, the Center terminated Wright's employment citing budget reasons.
A motion to dismiss
tests the legal sufficiency of the complaint.
Bartley v. Thompson, 198 Wis.2d 323, 331, 542 N.W.2d 227,
230 (Ct. App. 1995). The motion raises
a question of law that we review without deference to the trial court. Id. Although we take the pleaded facts and inferences from those
facts as true, "legal conclusions and unreasonable inferences need not be
accepted." Morgan v.
Pennsylvania Gen. Ins. Co., 87 Wis.2d 723, 731, 275 N.W.2d 660, 664
(1979). A complaint is legally
insufficient and warrants dismissal if under no circumstances can the plaintiff
recover based on the facts alleged. Williams
v. Security S&L Ass'n., 120 Wis.2d 480, 482-83, 355 N.W.2d 370, 372
(Ct. App. 1984).
Hausman and Wright's
claim that § 50.07(1)(e), Stats.,
creates a private cause of action presents an issue of statutory
construction. The purpose of statutory
construction is to ascertain and give effect to the legislature's intent. State v. Martin, 162 Wis.2d
883, 893, 470 N.W.2d 900, 904 (1991).
Subsections of statutes are not read in isolation. Kerkvliet v. Kerkvliet, 166
Wis.2d 930, 939, 480 N.W.2d 823, 827 (Ct. App. 1992). "The entire section of a statute and related sections
are to be considered in its construction and interpretation; we do not read
statutes out of context." Id. The construction of a statute presents a
question of law this court reviews without deference to the trial court. State v. Pham, 137 Wis.2d 31,
33-34, 403 N.W.2d 35, 36 (1987).
Section 50.07(1)(e), Stats., provides:
(1) No person may:
....
(e)
Intentionally retaliate or discriminate against any resident or employe for
contacting or providing information to any state official, or for initiating,
participating in, or testifying in an action for any remedy authorized under
this subchapter.
Section
50.07(2), however, provides that violators of the above section may be fined up
to $1,000, imprisoned up to six months or both for each offense.
We are required to
conclude that § 50.07(1)(e), Stats.,
does not create a private cause of action.
The language of the statute primarily determines the existence of a private
cause of action. McNeill v.
Jacobson, 55 Wis.2d 254, 258-59, 198 N.W.2d 611, 614 (1972). The statute's purpose and the remedy
contained within its language are factors to take into consideration in
determining whether a private cause of action is created. Id. The touchstone of this inquiry "is the presence of an
expression of legislative intent specifically to create such a right, and the
form and the language of the rule are the primary indicators of such an expression." Kranzush v. Badger State Mut. Cas. Co.,
103 Wis.2d 56, 79-80, 307 N.W.2d 256, 268 (1981). There is a presumption against implying causes of action in a
statute. West Allis Memorial
Hosp., Inc. v. Bowen, 852 F.2d 251, 254 (7th Cir. 1988); see Yanta
v. Montgomery Ward & Co., 66 Wis.2d 53, 56-57, 224 N.W.2d 389,
392-93 (1974).
Although Hausman and
Wright are members of the special class § 50.07(1)(e), Stats., is intended to protect, it does
not mean that they have a private right to enforce any violations. See Fortier v. Flambeau
Plastics Co., 164 Wis.2d 639, 659, 476 N.W.2d 593, 601 (Ct. App.
1991). In Fortier, we
held that property owners adjacent to a landfill did not have a private cause
of action for damages even though they
were part of the class the administrative rule sought to protect. Id. Supporting the conclusion that the administrative rule did not
create a cause of action was that enforcement for violations of the rule was
commended to the attorney general. Id.
at 661, 476 N.W.2d at 602. We find this
case to be similar to Fortier.
In determining whether §
50.07(1)(e), Stats., creates a
private cause of action, we must consider the enforcement method the
legislature has chosen. Section
50.07(2) provides that "[v]iolators of this section may be imprisoned up
to 6 months or fined not more than $1,000 or both for each
violation." The legislature
established a clear mechanism to enforce the statute; violation of this statute
is a criminal and public matter rather than a private one. The legislature provided for the enforcement
of this statutory provision through the penalty expressed by the statutory
language and not by creating a private cause of action. The only enforcement mechanism contained in
the statute is the criminal penalty; it is silent as to any private causes of
action. Had the legislature intended to
create a private cause of action, it could have provided for dual
enforcement. The existence of this
penalty provision and the presumption against implying private rights of action
compel the conclusion that the legislature did not intend this statute to
create a private cause of action. See
Fortier, 164 Wis.2d at 661, 476 N.W.2d at 602.
Hausman and Wright next
contend that because their employment was terminated while they were attempting
to enforce the residents' rights, an action for wrongful discharge under public
policy exists. Although such an action
is available in Wisconsin, we conclude that it is not available to Hausman and
Wright under the facts alleged in the complaint.
Whether a cause of action
for wrongful discharge exists is a question of law. See Brockmeyer v. Dun & Bradstreet, 113
Wis.2d 561, 335 N.W.2d 834 (1983).
Causes of action for wrongful discharge are very limited. See Bushko v. Miller Brewing
Co., 134 Wis.2d 136, 141, 396 N.W.2d 167, 170 (1986). These actions are limited to situations
where the discharge is "for refusing a command to violate a public policy
as established by a statutory or constitutional provision." Id. at 141, 396 N.W.2d at
170. The employee's conduct in conformity
with public policy is "praiseworthy," but any termination resulting
from such conduct does not provide the basis of a wrongful discharge
action. Id.
The wrongful discharge
doctrine has no application to the facts alleged in this case. Neither Hausman nor Wright allege they were
ever commanded to violate the constitution, a statute or the administrative
code. Their complaint merely alleges
that they "believe[d]" they were asked to violate the law. While a command may be implied from an employer's
conduct, Winkelman v. Beloit Memorial Hosp., 168 Wis.2d 12,
18-19, 483 N.W.2d 211, 213-14 (1992), no such implication is supported by this
complaint. It is not alleged that
Hausman and Wright were told to refrain from reporting their concerns nor is it
alleged that they were commanded to engage in any abuse or cover up incidents
of inadequate care. In short, they do
not contend they were told to take or cease any activity. As a result, Hausman and Wright do not
adequately allege a claim for wrongful discharge as a violation of public
policy.
We note that some states
have created a "whistleblower" exception to the employment at will
doctrine. See Moyer v.
Allen Freight Lines, 885 P.2d 391 (Kan. 1994); Suchodolski v.
Michigan Consol. Gas Co., 316 N.W.2d 710 (Mich. 1982); Vonch v.
Carlson Cos., 439 N.W.2d 406 (Minn. Ct. App. 1989); Remba v.
Federation Employment & Guidance Serv., 545 N.Y.S.2d 140 (N.Y.
1989); Helmick v. Cincinnati Word Processing, Inc., 543 N.E.2d
1212 (Ohio 1989); Nees v. Hocks, 536 P.2d 512 (Or. 1975). The appellants' argument suggests a theory
along these lines. This doctrine has
not been recognized in Wisconsin and is an issue that must be addressed by the
supreme court or the legislature.
The third basis upon
which Hausman and Wright challenge the dismissal order is founded on the
allegation of misrepresentation brought against the Center for failure to post
the appropriate agency to whom neglect and abuse matters are to be
directed. Hausman and Wright contend
that they would have been protected from a retaliatory termination had they
directed their complaints to the appropriate agency, the Pierce County Human
Services Department. Section 46.90(4)(a)1, Stats., allows any person to report
suspected abuse to the designated county agency. Section 46.90(4)(b)1 prohibits any employer from discharging or
otherwise discriminating against any person for reporting under subsec.
(a)1. Hausman and Wright, however, did
not report their concerns to the Pierce County Human Services Department.
To make out a claim for
misrepresentation the plaintiffs must prove: (1) The defendant must make
a representation of fact; (2) the representation of fact must be false; (3) the
defendant negligently made the representation; and (4) the plaintiff(s) must
have believed that the representation was true and detrimentally relied upon
it. Goosen v. Estate of Standaert,
189 Wis.2d 237, 250, 525 N.W.2d 314, 319-20 (Ct. App. 1994). Whether the facts fulfill these legal
standards is a question of law. Id.
at 251, 525 N.W.2d at 320.
Hausman and Wright argue
that the Center committed a misrepresentation because it posted the identity of
the ombudsman and the Wisconsin Department of Health and Social Services, but
failed to identify the county agency to whom such complaints could be made with
protection against any retaliation.
Even accepting the allegations as true, we cannot agree. Because the posting of the information was
according to statute, it was not intended as a representation by the
Center. To make a misrepresentation
claim, the posting needed to represent itself as a full and complete statement
of all of the agencies to whom such complaints could be addressed. Only if this was the representation could
Hausman and Wright claim they were misled into not reporting to the designated
Pierce County agency. No reasonable
interpretation of the facts alleged in this posting could lead to the
conclusion that the agencies posted were the only agencies to whom such
complaints could be made. This is fatal
to the misrepresentation claim.
We, therefore, conclude
that no claim for misrepresentation was stated because the Center's notice did
not represent itself as a comprehensive list all agencies to whom such reports
could be made. Further, the alleged
representation is not false because it listed appropriate agencies to report
such concerns.
Because we also conclude
that § 50.07(1)(e), Stats., does
not provide a private cause of action, and Hausman and Wright failed to state a
claim for a violation of public policy or misrepresentation, the order
dismissing their action is affirmed.
By the Court.—Order
affirmed.
