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



ERD Case No. 200503213, EEOC Case No. 26G-2005-01882C

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in the above-captioned matter on February 22, 2007. The ALJ concluded that the complainant failed to show probable cause to believe that the respondent had violated the Wisconsin Fair Employment Act by terminating her employment because of her age or race and therefore dismissed the complainant's complaint. The complainant filed a timely petition for commission review of this matter.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based upon its review of this matter, and for the reasons stated in the Memorandum Opinion attached to this decision, the Labor and Industry Review Commission hereby issues the following:


The decision of the administrative law judge is reversed and this matter is remanded to the Equal Rights Division for further proceedings on the merits of the complainant's complaint.

Dated and mailed March 14, 2008
nevelka . rpr : 125 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


The complainant began employment with the respondent on February 28, 2005, as a psychiatric social worker in the respondent's Behavioral Health Division.

The complainant has a Bachelor of Arts degree, a Bachelor of Science degree and a Master's degree in Health Service Administration. She is also certified as a Social Worker and an Alcohol and Drug Counselor-3. The complainant is a black female. Her date of birth is August 19, 1954.

On March 1, 2005, Jennifer Bergersen, who had interviewed the complainant for the psychiatric social worker position and was to be her supervisor, informed the complainant that she would no longer be her supervisor as she had transferred to another department. Bergersen informed the complainant that the nurse supervisor, Cheryl Schloegl, would be her supervisor and also the administrator of nursing, Sue Schuler. Schloegl reported to Schuler.

The complainant was required to undergo a six-month probationary period that ended on August 28, 2005.

The complainant was assigned to Unit 43B. Schloegl did not train the complainant, but Schloegl was on the unit because she was covering all the units as the nurse supervisor.

The respondent uses a team system to provide psychiatric care to its patients. The complainant's unit, 43B, had a blue team and an orange team. There were two doctors on the blue team (Dr. Hardy and Dr. Strelnick) and one doctor on the orange team (Dr. Agaiby). Although specifically assigned to the blue team, the complainant was the only social worker on the unit for about 31/2 weeks until the respondent was ready to train three other newly hired social workers. There were supposed to be two social workers per unit. Apparently, after this 31/2 week period Schuler asked the complainant if she would like to change teams. Schuler did not discuss with the complainant why it might be "a good thing" for her to move to the orange team. The complainant did not want to, but did not object and made the move to the orange team.

At some point Schloegl and Schuler told the complainant they were bringing a psychiatric social worker who had retired (Carol Wacker) to the unit to help her. However, when Wacker came, she did not just assist the complainant, she also assisted the other three newly hired social workers. Also, at some point during a monthly Thursday meeting Schuler commented that they were "up full and running, that all units were doing a fine job and that all units had social workers for each department."

On July 1 the complainant received a written form from Schloegl which stated that she "had not missed any days from work and that her attendance on the job was almost 100 per cent." In the comment section of this form Schloegl wrote, "Thanks for all the hard work!"

During the course of her employment the complainant was never told that her work performance was not meeting standards.

On August 23, 2005, just days prior to the end of the complainant's probationary period, Schloegl and Schuler called the complainant to a meeting and Schuler told her that she "was not cutting it." When the complainant asked what she meant Schuler responded, "You're just not cutting it and you need to go" and then stated that she was getting a lot of complaints about the complainant. The complainant asked who was complaining and why wasn't she notified of the complaints. However, the complainant was never told who was complaining nor presented with any memos about complaints. The complainant testified that if doctors were dissatisfied with a social worker they would put it in writing in a memo. The complainant testified that she never received anything in writing about anything from anybody.

During the meeting with Schloegl and Schuler the complainant asked if her probationary period could be extended. The complainant informed Schloegl and Schuler that she would do whatever it took to maintain her job and to follow through with whatever they suggested, but they would not permit it. The complainant was aware that during her employment the respondent had extended the probationary period of a white female who was under the age of 40. She had also read about the probationary period being extended in the employee handbook. The complainant indicated that there had been no change in policy regarding extending the probationary period communicated to her.

After the termination of the complainant's employment, the respondent placed a white male in the psychiatric social worker position that she had held. The complainant believed his age to be 29 or 30.

Also, after her termination the complainant received a written notice of her termination of employment in the mail. It stated that she did not communicate well, her judgment was poor and that she was not dependable. At the bottom of this notice was the comment that a retired psychiatric social worker had been brought in to train her.

The complainant testified that neither Schloegl nor Schuler had told her that her communication skills were poor, that her judgment was poor or that she was not dependable. The complainant testified that she had no indication from either Schloegl or Schuler that she was not performing up to standards in any of these areas.

The complainant denied that Dr. Strelnick had complained to her that she did not follow up with the psychiatric appointments as he requested. She denied that Dr. Hardy complained to her that she did not return calls to people or that she did not know her patients well enough to effectively make her presentation at utilization reviews. At utilization reviews, the psychiatric social workers would present recommendations for patient after-care services or other services for the individual including home health services or financial assistance. Further, the complainant testified that part of her job responsibility included doing a lot of detailed paperwork for patients. She denied that Dr. Agaiby complained that her paperwork was disorganized and that things could not be found. The complainant testified that Dr. Agaiby did not discuss any concerns with her about her performance.

During the course of her employment, Schloegl had a discussion with the complainant about a discharge of a patient to a group home in Madison, Wisconsin. The complainant testified that while this patient was supposed to be returning to Madison, she was placed in a nursing home in Milwaukee and this nursing home in turn placed her in the respondent's Behavioral Health Division. The complainant denied that she was aware that this patient had the wrong form of insulin or that she needed insulin, and she denied that during her discussion with Schloegl that she had admitted to not communicating with Schloegl on this matter. The complainant testified that as a social worker for the respondent she was not required to administer drugs or insulin. Further, with respect to knowledge of the drugs that a patient was taking, the complainant testified she was only required to know what was in writing as prescribed by the doctor.


A claim of unlawful discrimination may be proven by utilizing the indirect, burden-shifting method set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In McDonnell Douglas, the Supreme Court set forth the basic allocation of burdens and order of presentation of proof in a Title VII case alleging discriminatory treatment. First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving a prima facie case, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for its action. Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981), citing McDonnell Douglas. (1)

In a claim of discriminatory discharge on the basis of age, the elements of a prima facie case that the complainant must show are that: (1) she was forty or older and thus a member of the protected age group; (2) she was discharged; (3) she was qualified for the job, and (4) either she was replaced by someone not within the protected class or that others not in the protected class were treated more favorably. Puetz Motor Sales, Inc. v. LIRC, 126 Wis. 2d 168, 173, 376 N.W.2d 372 (Ct. App. 1985)(internal citations omitted). The complainant may establish a prima facie case of race discrimination with respect to discharge utilizing these same elements, with the exception that as the first element she must show that she is a member of a protected group or class based on her race.

At the close of the complainant's case the respondent moved for a dismissal of her case on the grounds that she had failed to establish probable cause to believe that her race or age was the reason for her separation of employment. Despite argument by the complainant that she had established a prima facie case of race and age discrimination, the ALJ stated that she was more inclined to agree with the respondent's position. However, prior to concluding the hearing the ALJ offered the respondent the opportunity to put on its case but the respondent decided not to, stating that it was resting. At that point the ALJ notified the parties as to when they might receive her written decision and closed the hearing.

The factual evidence of record in this case sufficiently shows that the complainant has established a prima facie case of race and age discrimination. The facts show that: (1) the complainant is a member of the protected group or class because of her race and age; (2) she was discharged; (3) she was qualified for the job and never told during the course of her employment that her work performance was not meeting standards; and (4) she was replaced by a white male who was about age 29 or 30, and the respondent refused to extend her probationary period as it had done for another white psychiatric social worker under age 40.

The complainant having succeeded in proving a prima facie case of race and age discrimination caused the burden to shift to the respondent to articulate some legitimate, nondiscriminatory reason for its action. However, the respondent has not satisfied its burden. The respondent did not offer any legitimate, nondiscriminatory reason for its action at the hearing nor did it rebut the testimony given by the complainant at the hearing. The respondent rested after the close of the complainant's case.

While the commission has generally held that a complainant is required to do more than establish a prima facie case in order to sustain his or her burden of establishing probable cause to believe that unlawful discrimination has occurred [see, e.g., Ford v. Lynn's Hallmark, Inc. (LIRC, 06/27/05)], absent the respondent's presentation of evidence of a legitimate, nondiscriminatory reason for the complainant's termination of employment or the presentation of any evidence to rebut the complainant's testimony, that is not the case. A finding of probable cause does result where the respondent has offered no evidence at the hearing to rebut the complainant's prima facie case. Gunderson v. Bonded Spirits Corp. (LIRC, 07/17/86).

Attorney Larry A. Johnson
Attorney Roy L. Williams

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(1)( Back ) This method of analysis is appropriate at a probable cause hearing; however, the standard by which evidence is measured is not as demanding as that used at a hearing on the merits. Fluekiger v. Mathy Constr. Co. (LIRC, 05/14/87).


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