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

PATRICIA MCCULLUM, Complainant

LUTHERAN HOME INC, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR200600744


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

Based upon a review of the applicable law, records and evidence in this case, the Commission hereby issues the following:

ORDER

The decision of the administrative law judge is set aside and this matter is remanded to the Division for continued proceedings before a different administrative law judge, and, after the presentation of all the evidence by the parties, the issuance of a new decision on the complainant's complaint of discrimination.

Dated and mailed May 23, 2008
mcculpa . rrr : 164 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

In a complaint containing five pages of factual assertions, the complainant alleges, in part, that she was employed by the respondent as a certified nursing assistant (hereinafter "CNA"), and that on May 5, 2005, she witnessed a fellow CNA yelling and swearing at a resident. The co-worker involved reported her own actions to the supervisor, who asked the complainant to provide a written statement about what had happened. The complainant refused to do so, stating that she was willing to provide an oral statement to the director of nursing (hereinafter "DON"), but did not want to give a written statement to the supervisor. The complainant contended that the supervisor was a friend of the CNA who had abused the patient and that she believed the supervisor would not forward or accurately report her statement to the DON. After the complainant refused to provide a witness statement, her supervisor required the complainant to punch out and go home, and had her escorted out of the building by security.

The complainant alleges that the following day, May 6, 2005, she provided a written statement to the DON which detailed her co-worker's abusive conduct and referenced earlier instances of abuse by the co-worker, which the supervisor failed to correct. The complainant was suspended from work from May 6 until May 11, 2005, at which time she was discharged for insubordination.

An initial determination found no probable cause to believe that discrimination had occurred. The complainant filed a timely appeal, and the matter was certified to hearing. Prior to hearing the respondent requested a dismissal of the complaint for failure to state a claim upon which relief can be granted. The respondent argued that the complainant's refusal to provide a witness statement to her supervisor is not protected by the Health Care Worker Protection Act (HCWPA); that the report she eventually filed with the DON is not covered under the HCWPA (1) ;  and that, even if it was, the complainant had no evidence that this statement led to her termination. The respondent contended that the undisputed and well-documented facts show the reason for the complainant's discharge was insubordination for refusing her supervisor's directive to prepare a witness statement on May 5.

The administrative law judge granted the respondent's request to dismiss. The administrative law judge found that the complainant's failure to provide the requested witness statement until May 6 was not protected by the HCWPA. The administrative law judge noted that the complainant also alleged that she was entitled to protection under the HCWPA based on another statement she provided to the respondent that contained allegations against her supervisor, but this statement was date-stamped received by the respondent on May 13, 2005, after the complainant was already discharged. The administrative law judge stated:

"The Complainant cannot establish that she made a protected report prior to her termination of employment and, therefore, she cannot establish that such a report was a motivating factor in the decision to terminate her employment. Therefore, the Respondent is entitled to judgment as a matter of law."

The complainant has filed a petition for commission review requesting an opportunity to be heard.

There is no summary judgment procedure under the Wisconsin Fair Employment Act (hereinafter "Act"). Alvey v. Briggs & Stratton, (LIRC, Nov. 27, 1991); Olson v. Lilly Research Laboratories, (LIRC, June 25, 1992). However, in appropriate circumstances, an administrative law judge may dismiss a complaint prior to hearing where, even if what is claimed by the complainant is true, there would be no violation of the Act as a matter of law. Dunn v. City of Burlington Engineering Department (LIRC, July 28, 1995). The authority to dismiss a complaint without hearing only extends to circumstances where it appears that, based upon the assertions in the complaint, there is simply no way the complainant could prevail. A motion to dismiss for failure to state a claim should not be granted unless there are no circumstances under which relief could be granted. Reddin v. Neenah Joint School Dist. (LIRC, Aug. 24, 2004); Jackson v. MATC and AFT (LIRC, July 16, 2003).

Making a determination that, even if what is claimed by the complainant is true, there would be no violation of the Act as a matter of law, involves looking at what the complainant asserts he or she will prove. This can be accomplished by looking at what the complaint alleges, and to any other assertions of the complainant which provide an indication of the nature of the claim. Jacobs v. Glenmore Distilleries Company (LIRC, Nov. 25, 1992), citing Alvey v. Briggs & Stratton (LIRC, Nov. 27, 1991) and Olson v. Lilly Research Laboratories (LIRC, June 25, 1992).

Cases in which the commission has found that there were no circumstances in which the complainant could prevail based upon the allegations in the complaint have generally involved situations in which the conduct alleged to be discriminatory was not covered under the Act. See, for example, Graham v. Lisas Flower and Gift Shop (LIRC, Jan. 19, 2001), in which the complainant alleged she was harassed, not because of any protected status, but because the employer was facing financial troubles and hoped to force her to quit; Harris-Wright v. Chrysler Motors (LIRC, Feb. 20, 2001), in which the complainant made a number of allegations against the employer, including medical malpractice, fraud, the denial of worker's compensation and social security benefits, death threats and blackmail, but did not allege discriminatory conduct; Hellerude v. State of WI-DILHR (LIRC, March 25, 1996), in which the complainant attempted to challenge the validity of an administrative rule concerning the inspection of fire extinguishing systems; Ficken v. Harmon Solutions Group (LIRC, Feb. 7, 2003), in which the complainant alleged that he was denied the opportunity to perform unpaid volunteer work; and Dunn v. City of Burlington Engineering Department (LIRC, July 28, 1995), in which the complainant alleged that the respondent expected older Worker's to work at the same pace as younger Worker's, a matter which the commission interpreted as a request for preferential treatment not required by the Act.

In her complaint of discrimination the complainant alleges that on May 6, 2005, she submitted a written statement to the DON contending that another CNA had abused a resident, and suggesting that the nursing supervisor had condoned such conduct by the CNA in the past. The complaint alleges that the complainant was discharged on May 11, 2005, and that her discharge was connected to her protected conduct.

The administrative law judge's dismissal of the complaint was premised on a finding that the statement the complainant submitted to the DON was date-stamped May 13, 2005, after the discharge, and could not have been a motivating factor in the discharge, and on a conclusion that the reason for the complainant's discharge was insubordination. However, while in a brief in response to the respondent's motion to dismiss, the complainant's attorney indicated that a portion of the complainant's written statement was date-stamped by the respondent on May 13, the fact remains that in her complaint the complainant alleges she submitted her written statement to the respondent on May 6, 2005, prior to the discharge. The question of whether the document was submitted on May 6 or at some point thereafter is a question of fact that cannot be resolved without a hearing. Similarly, the question of whether the respondent was motivated to discharge the complainant because it believed she was insubordinate or whether the discharge was in retaliation for protected conduct is the central factual question in this case which requires a hearing to decide.

The commission has repeatedly stated that it favors holding hearings, unless there are simply no circumstances in which the complainant could prevail. Where, as here, the complaint contains allegations which, if proven, would be covered under the Act, a dismissal prior to hearing is inappropriate. The commission has, therefore, remanded this matter for a hearing.

 

cc: Attorney Kristi Nelson Foy



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Footnotes:

(1)( Back ) The HCWPA protects an employee of a health care facility who is aware of information that would lead a reasonable person to believe that the facility has violated a law or a standard established by law or a clinical or ethical standard established by a professionally recognized body and who reports this information in good faith to a director of the health care facility or to an employee in a supervisory capacity or in a position to take corrective action. See Wis. Stat. 146.997(2). The respondent has not explained why it believes the complainant's written statement is not covered by the HCWPA.

 


uploaded 2008/05/27