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

STEPHANIE L BAKER, Complainant

ASERACARE HOSPICE, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 200603602, EEOC Case No. 26G200700147C


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 conclusions in that decision as its own, except that it makes the following modification:

Paragraph number 1 of the FINDINGS OF FACT is deleted and the following paragraph is substituted therefor:

"The Complainant, Stephanie Baker (Baker), a white female, began employment with the Respondent, Aseracare Hospice (Aseracare), in October 2002 as a Business Office Assistant and last worked as a Business Office Specialist."

DECISION

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

Dated and mailed July 10, 2009
bakerst . rmd : 125 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

Stephanie Baker appeals from the ALJ's decision, which found no probable cause to believe that the respondent, Aseracare Hospice, violated the WFEA by discriminating against Baker with respect to her terms and conditions of employment or by terminating her employment because of her race.

The respondent terminated the employment of Stephanie Baker, along with her co-worker, Tyra Stewart, on October 9, 2006, following a physical altercation that took place between them on October 6, 2006. Baker and Stewart had had a number of confrontational incidents prior to October 6 and were counseled that they needed to bring any problems to management or to handle the problems like adults. Baker is white. Stewart is black.

Stephen Wishart, executive director of the respondent's hospice division and a supervisor of Baker's at the relevant time herein, in consultation with the respondent's regional director of human resources, Joe Pollina, made the decision to terminate Baker's and Stewart's employment. Wishart and Pollina are white.

Baker contends that her termination was racially motivated. Baker claims that she was not the aggressor in the altercation on October 6, 2006, and that the respondent fired her along with Stewart because it feared that firing only Stewart would have resulted in Stewart filing a complaint of discrimination. The record does not support Baker's contention that her termination was racially motivated.

With respect to her claim that she was not the aggressor in the October 6, 2006 altercation, on appeal Baker points out that Pollina states in his response to her complaint that "Stewart openly admitted punching, hitting or slapping me. I simply held onto her to protect myself." However, Pollina's response also states that "[Baker's] actions throughout this situation had also played a key role that continued the instigating and tension between the two individuals, which ultimately led to a physical altercation." Indeed, Wishart, who took Stewart's and Baker's statements when investigating the October 6 altercation, and the respondent's executive director of clinical services, Sandra Miller, who was present during the taking of their statements, both testified that when questioned Baker stated she had asked Stewart if she "wanted to take it outside" just prior to the physical altercation.

Baker asserts that what she asked Stewart was "to step outside in the hallway to talk privately." However, Miller testified that when questioned about the incident Baker did not explain what she meant by asking Stewart if she "wanted to take it outside." Further, Wishart testified that he assumed what Baker meant by this comment was to take it outside to fight.

Baker also asserts that per her representative, Stewart "is very remorseful over what she has done and agreed to testify on my behalf". Further, Baker apparently asserts that Stewart's testimony will show that Wishart and Joanne Klinko, who was also her supervisor, "made false statements under oath" regarding their knowledge of her (Baker) having reported every incident that had occurred with Stewart. However, any testimony by Stewart should have been presented at the hearing already held in this matter. The ERD provided notice to Baker prior to the hearing that she should arrange to have any witnesses present she felt would help to prove her case and that if a necessary witness was reluctant to appear that that witness could be subpoenaed. Furthermore, as noted above, Baker and Stewart had been previously counseled that they needed to bring any problems to management or to handle the problems like adults, and the respondent's investigation of the October 6, 2006 incident indicated that both Baker and Stewart were at fault for the incident.

Baker further asserts that during discovery she had requested Stewart's personnel records in a production of document request which the respondent's counsel failed to provide. The record indicates that the respondent objected to this discovery request. There is no indication, however, that Baker ever made an attempt to resolve the dispute with the respondent, or that Baker ever filed a motion with the ALJ to compel discovery as provided in Wis. Admin. Code § DWD 218.14(4).

In addition, Baker contends that contrary to the ALJ's finding that both she and Stewart were sent home after the physical altercation, Stewart was not sent home; Stewart simply left the building. Miller and Wishart testified, however, that both Baker and Stewart were sent home.

 

cc: Attorney Theresa E. Essig


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