STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

DIANNE J MATSON, Complainant

AURORA HEALTH CARE, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 200504563,


The Equal Rights Division (ERD) of the Department of Workforce Development consolidated this case with ERD Case No. 200504562 for hearing purposes. An administrative law judge (ALJ) for ERD issued a single decision resolving both cases.

A timely petition for review of the ALJ's decision was filed.

The commission is separating Case No. 200504562 and Case No. 200504563, and issuing a decision in each case.

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 makes the following:

FINDINGS OF FACT


1. The complainant Diane J. Matson (Matson), began her employment with the respondent Aurora Health Care (Aurora) on September 21, 2002, as a Clinical Nurse Specialist.

2. Matson was assigned to a walk-in clinic where physicians send overflow patients, or where patients who need immediate care are seen.

3. Matson's duties included managing patient flow in treatment rooms; assessing patients to determine why they were seeking treatment and if they needed immediate attention; and providing certain forms of direct treatment under the supervision of a physician such as administering injections and performing catheterizations.

4. The physician with whom Matson worked most frequently in the walk-in clinic was Ned Mejalli (Mejalli).

5. Throughout her employment at the walk-in clinic, Matson brought concerns about certain of Mejalli's practices to the attention of her immediate supervisor, Christine Ettrich (Ettrich), and to Joanne Kolpek (Kolpek), the clinic administrator. These concerns included:

6. Similar concerns about Mejalli were reported to Ettrich and Kolpek by certain of Matson's coWorker's.

7. Matson and certain of her coWorker's also expressed concern to Ettrich and Kolpek about Mejalli's condescending and disrespectful interactions with them.

8. Kolpek convened a meeting in June of 2003 to discuss the concerns about Mejalli brought to her attention by Matson and her coWorker's, as well as those Mejalli had expressed about the nursing staff.

9. As a result of this and other meetings, the nursing staff was directed to follow the one-patient/one nurse protocol preferred by Mejalli for his patients. Pursuant to this protocol, the same nurse or medical assistant who placed a patient in a room was required to continue with this patient throughout the patient's stay in the clinic.

10. In May of 2003, respondent placed Mejalli on probation in order to more closely monitor the quality of his work performance.

11. On February 13, 2005, both Matson and Mejalli were scheduled to work at the walk-in clinic. Matson placed a patient who needed to have his ear flushed in a room, and left the room to retrieve the equipment needed to do the ear levage. As she was doing so, the clinic's x-ray department requested help administering a chest x-ray to a child. Matson spent about ten minutes in the x-ray department providing this assistance.

12. When Matson returned from the x-ray department, she noticed medical assistant Sue Osinga (Osinga) going into the patient's room with the ear levage equipment. Osinga asked Matson to listen for the completion of a strep screen she had started, and to document it on Osinga's patient's chart while Osinga completed the ear levage. Matson told Osinga that, since she had placed the ear patient in the room, she should finish the ear levage, and Osinga should handle the strep screen. Osinga ignored Matson and proceeded to perform the ear levage. Matson read the strep screen when the buzzer went off and recorded the reading in the patient's chart.

13. As Matson was recording the strep screen, Mejalli asked what she was doing. When Matson told Mejalli she was recording the strep screen, Mejalli asked her if she had initiated the test. When Matson indicated she had not, Mejalli reminded her that this violated the one patient/one nurse protocol.

14. Matson responded to Mejalli, "Well, what would you have me do? Do you want me to just stand here and let the buzzer ring? Are you going to do it? I mean, I don't know what you want me to do any more." After expressing to Mejalli in an angry voice that he was not permitting her to do her job, Matson stated to him, "I can't take this any more," and walked away from Mejalli to the other side of the hall.

15. Matson then began to cry. Kathy McCulka (McCulka), another nurse, noticed Matson crying, and suggested she go home for the rest of her shift. McCulka was not Matson's superior.

16. Mejalli then followed Matson to the other side of the hall, and pointed his finger at her and said in a raised voice, "And you broke two rules yesterday." Matson responded in a raised voice that she did not know what he wanted her to do or what her job was any more.

17. McCulka suggested that Matson and Mejalli leave the area because patients would be able to hear them arguing. Matson and Mejalli walked to the back hallway.

18. In the back hallway, after Matson again told Mejalli that she could no longer work like this because she no longer knew what he expected, Mejalli became very angry, shook his finger at Matson again, and told her that he had almost lost his job because of her. Matson responded, "How dare you say that to me...We have already been through this..." Mejalli then told Matson that she was not the boss and was not in control of the clinic. Mejalli and Matson were both speaking in raised voices during this exchange.

19. Ron Robinson, the maintenance supervisor who was present in the back hallway, suggested that Mejalli and Matson "keep it down."

20. Matson then walked away from Mejalli to retrieve her purse and coat. She was unable to locate Ettrich's phone number before Mejalli angrily approached her again. Matson took her purse and coat, left the work site, and went home.

21. Matson paged Ettrich after she got home, and Ettrich, who was in church at the time, returned the call about an hour later.

22. Prior to speaking to Matson, Ettrich went to the clinic and spoke with Mejalli, McCulka, and Robinson.

23. Matson related her version of what had occurred to Ettrich during their phone conversation. Matson told Ettrich she wanted to file a harassment complaint against Mejalli. Ettrich told Matson she could not just leave the clinic without notice to, or permission from, a supervisor, and her actions could be considered job/patient abandonment. Ettrich told Matson she would discuss the matter with Kolpek the next day and get back to Matson.

24. Instead of waiting to be contacted by Ettrich or Kolpek, Matson went to the clinic the next day, February 14, and waited in Dr. Menne's office. Ettrich and Kolpek were meeting at the time with Elida Liederbach, human resources manager, to discuss a harassment complaint against Mejalli filed by Deb Popodi, another clinic staff member. When Popodi left the meeting, Matson waited for another ten minutes and then left the clinic.

25. Later, after discovering that Matson had left the clinic, Ettrich called Matson at home. Also participating in this conference call were Kolpek, Liederbach, and Judy Weber, a clinic supervisor. Ettrich informed Matson that she was being discharged for leaving the work site and abandoning patient care without notice to, or permission from, her supervisor.

26. On August 31, 2001, customer service representative (receptionist) Reshonda Thomas (Thomas) received a one-day suspension without pay for leaving the work site without permission prior to the end of her shift. After leaving the work site, Thomas returned to complete her shift that day.

27. During 2004, Jessica Jefferson (Jefferson), a medical assistant, left the work site prior to the end of her shift after obtaining permission from Ettrich, her supervisor

28. During Matson's employment at the walk-in clinic, Catherine Hazelwood, a nurse, left the work site prior to the end of her scheduled shift after providing notice to Kolpek. After leaving the work site that day, Hazelwood returned to the walk-in clinic prior to the end of her shift, and requested and was granted a three-day leave.

CONCLUSIONS OF LAW


1. Respondent is a health care facility within the meaning of the Health Care Worker Protection Act.

2. There is no probable cause to believe that the respondent violated the Health Care Worker Protection Act by taking disciplinary action against the complainant because she engaged in an activity protected by Wis. Stat. § 146.997(2).


ORDER

Exhibit #R-9 is received into the hearing record. The ALJ's holding that no probable cause exists to believe that the complainant had been disciplined in retaliation for engaging in an activity protected by the Health Care Worker Protection Act is affirmed. This complaint is dismissed.

Dated and mailed March 21, 2008
matsodi . rrr : 115 : 9

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


MEMORANDUM OPINION

In her charge, the complainant alleges retaliation for engaging in an activity protected by the Health Care Worker Protection Act (HCWPA).

The issue here is one of probable cause.

The Health Care Worker Protection Act (HCWPA) states as follows, as relevant here:

146.997(2) Reporting protected.

(a) Any employee of a health care facility...who is aware of any information...that would lead a reasonable person to believe any of the following may report that information to any agency, as defined in s. 111.32 (6) (a), of the state; ...to any officer or director of the health care facility or health care provider; or to any employee of the health care facility or health care provider who is in a supervisory capacity or in a position to take corrective action:

1. That the health care facility or health care provider or any employee of the health care facility or health care provider has violated any state law or rule or federal law or regulation.

2. That there exists any situation in which the quality of any health care service provided by the health care facility or health care provider or by any employee of the health care facility or health care provider violates any standard established by any state law or rule or federal law or regulation or any clinical or ethical standard established by a professionally recognized accrediting or standard-setting body and poses a potential risk to public health or safety....

146.997(3) Disciplinary action prohibited.

(a) No health care facility or health care provider and no employee of a health care facility or health care provider may take disciplinary action against, or threaten to take disciplinary action against, any person because the person reported in good faith any information under sub. (2) (a),...

146.997(4) Enforcement.

(a) Any employee of a health care facility or health care provider who is subjected to disciplinary action, or who is threatened with disciplinary action, in violation of sub. (3) may file a complaint with the department [of workforce development] under s. 106.54 (6). If the department finds that a violation of sub. (3) has been committed, the department may take such action under s. 111.39 as will effectuate the purpose of this section.

The respondent argues that the complainant is not entitled to protection under the HCWPA because she has failed to specify any state law or rule, any federal law or regulation, or any clinical or ethical standard which she believes was violated by Dr. Mejalli.

However, neither the HCWPA, nor the pleading requirements of ERD, require that a complainant specifically identify which state or federal law or rule, or ethical or clinical standard, she believes has been violated in order to obtain HCWPA protection. See, Lobacz v. Dept. of Corrections, ERD Case No. CR200500096 (LIRC Nov. 3, 2005).

The dispensing of controlled substances, and the personal use of such substances, by a physician without proper documentation would implicate certain provisions of the criminal code, e.g., Wis. Stat. Ch. 961, the Uniform Controlled Substances Act; as well as Wis. Adm. Code § MED 10.02(2)(p), governing the dispensing of controlled substances by a physician. In addition, an attempt by a physician to obtain compensation through any form of fraud or deceit violates Wis. Adm. Code § MED 10.02(2)(m); and failure by a physician to maintain accurate health care records violates Wis. Adm. Code § MED 10.02(2)(za).

Based upon this, the information reported by the complainant to her supervisor and to the clinic administrator would lead a reasonable person to believe that Dr. Mejalli had violated a state law or rule, and would constitute a protected HCWPA disclosure as a result. It is important to note here that the relevant question is not whether the complainant's allegations were sufficient to establish that a law or rule had been violated, but rather whether they were sufficient to provide a motive for the respondent to retaliate. See, Lobacz, supra.

The HCWPA prohibits a health care facility, such as the respondent's walk-in clinic, from taking disciplinary action against a person for making a protected disclosure. The only action which could be considered disciplinary, within the meaning of Wis. Stat. § 446.997(3), is the complainant's February 2005 termination.

The final question then is whether the complainant's termination was in retaliation for her protected HCWPA disclosures. See, Comyne v. New Living Concepts, Ltd., ERD Case No. 200303708 (LIRC Dec. 16, 2005).

In a retaliation case, the employer's motivation is the ultimate issue. In order to establish a prima facie case of retaliation, the complainant must show a causal connection between her protected disclosures and her termination. In order to establish such a connection, it must be shown that the individual who made the termination decision was aware, or had reason to be aware, of the complainant's protected activity. See, e.g., Froh v. Briggs and Stratton Corp., ERD Case No. 200101453 (LIRC Sept. 29, 2004).The record in this case, however, does not establish who made the termination decision. Ettrich, the complainant's supervisor, testified that she did not. The complainant testified that she presumed that the decision had been made by Elida Liederbach, respondent's human resources manager. The record does not show that Liederbach would have had any reason to be aware of the complainant's protected HCWPA activities.

As a result, the complainant failed to establish a causal connection between her protected disclosures and her termination, and failed as a result to sustain her burden to establish a prima facie case of HCWPA retaliation.

If the complainant had sustained her burden to establish a prima facie case, the burden would shift to the respondent to articulate a legitimate, non-retaliatory reason for its termination decision. See, Engen, supra. The respondent sustained this burden by explaining that the complainant, a direct care provider, had been terminated for leaving the work site during a scheduled shift without notice to, or permission from, her supervisor. This explanation is legitimate and non-retaliatory on its face.

The burden would then shift back to the complainant to prove that this explanation was a pretext for retaliation.

The complainant first argues that pretext is demonstrated by the fact that others, presumably Worker's who had not engaged in an activity protected by the HCWPA, left the work site during a scheduled shift but were not terminated.

The complainant, however, failed to prove that these Worker's were similarly situated to her.

Thomas not only returned to the clinic during her scheduled shift but was not responsible for patient care.

Jefferson obtained permission from her supervisor before leaving the clinic.

Hazelwood provided notice to the clinic administrator before leaving the clinic, and returned during her scheduled shift.

The complainant, however, was not only involved in direct patient care, but left the clinic without notice to, or permission from, her supervisor. The record shows that the respondent considered this grounds for immediate termination. The complainant argues that her departure did not endanger patient care because, as Mejalli later informed Ettrich, there was sufficient nursing staff present in the clinic on February 13 to cover the complainant's absence. However, it is the purpose of the notice requirement to permit a member of management to determine whether a requested absence will render staffing levels inadequate and undermine the quality of care. This was not the complainant's call, and her departure without notice prevented the respondent from assessing the adequacy of staffing levels before she left.

The complainant also argues that the respondent's failure to solicit her version of events before terminating her establishes pretext. However, the complainant admits that Ettrich contacted her by phone on February 13, and she explained to Ettrich at that time what had occurred during her earlier confrontation with Mejalli. The record also shows that Ettrich shared this information with the group present during the February 14 phone conversation with the complainant, which included Liederbach, the person the complainant contends made the termination decision.

Even if the complainant had established a prima facie case, she failed to prove that the respondent's explanation for her termination was pretextual, and failed, as a result, to sustain her burden to prove that probable cause exists to believe that she was retaliated against for engaging in a protected HCWPA activity.

Other matters

According to the transcript, the ALJ failed to rule on the receipt of exhibit R-9 into the record even though he recorded on the exhibit report that it had been received. As a result, the commission has ordered the receipt of exhibit R-9 into the record.

The complainant takes issue in her appeal to the commission with the ALJ's rulings and his conduct. There is no question that the ALJ was direct, and sometimes impatient, in his exchanges with the complainant. However, this impatience with the complainant was not sufficiently egregious to prejudice her ability to present her case. The commission has reviewed the ALJ's rulings relating to this case and has found none which are erroneous.

One example the complainant describes in particular involves the ALJ permitting counsel for respondent to proceed to present her motion to dismiss before the complainant had called her final witness. However, the record reflects that this was a good faith misunderstanding by the ALJ based on complainant's statement to him that she was "done." Once the misunderstanding was pointed out, the ALJ permitted the complainant to call her last witness, and there was no prejudice to the complainant as a result.

The complainant, in her appeal to the commission, also asserts that she was prejudiced by the ALJ's failure to explain to her the process for offering exhibits for receipt into the hearing record. However, not only did the ALJ demonstrate the process for marking, offering, and receiving exhibits throughout the hearing, but he also explained the process and its effect to the complainant (see page 194 of transcript).

Finally, the complainant asserts that the respondent did not provide certain information relating to its discipline of Dr. Mejalli in response to her discovery request. However, the complainant failed, prior to hearing, to file a motion to compel discovery, or to otherwise bring this discovery matter to the attention of ERD. It was simply too late to raise this for the first time at hearing. In addition, the complainant did not establish at hearing that disciplinary records other than those provided by the respondent in response to her discovery request actually exist.

cc: Attorney Mary Pat Ninneman


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