JENNIE L LUBER, Complainant

HOWARD YOUNG MEDICAL CENTER INC, Respondent

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 conclusion in that decision as its own, except that it makes the following modifications:

The second full paragraph on page 6 of the decision is deleted.

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

Dated and mailed August 27, 2009
luberje . rmd : 115 : 9

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

During the first months of her employment, Luber's supervisor (Landeman) received complaints from Luber's coworkers that she made changes in procedures and moved equipment without informing them, and that she did not either understand or accept the fact that Keith Sieckert (Sieckert), not she, was the lead worker in the unit.

As a consequence, Lindeman had two unit meetings, in December 2004 and March 2005, to discuss communication and teamwork, but the situation deteriorated rather than improved.

As the ALJ found, this deterioration was primarily attributable to Luber. The record shows, for example, that Luber had changed the way patient and dosing logs were maintained without notifying her coworkers, who used these logs on a routine basis; did not consult her coworkers before relocating the generator and contamination testing equipment; intentionally failed to notify Lindeman and Sieckert when the physicist consultant arrived to communicate his analysis of the unit's policies and procedures; and did not accept Sieckert's role as her lead worker. These actions reasonably justified HYMC's decision to extend her probation. The record also shows that Luber did not accept Lindeman's assessment of her performance weaknesses and failed, despite numerous opportunities and directives from Lindeman and HYMC Vice President Calhoun, to prepare a required performance improvement action plan. This failure, considered in conjunction with her prior performance deficiencies, reasonably justified HYMC's decision to terminate her employment.

Luber explains that she advised Sieckert when the physicist consultant would be there. However, the record shows instead that Luber notified Sieckert that the physicist consultant would be there between 9 and 10 a.m. and she would let Sieckert know when he arrived but intentionally failed to do so.

Luber also explains that she did not know how to prepare a performance improvement action plan, and had been advised by her Employee Assistance Program (EAP) counselor not to prepare a plan until he had a chance to assist her.

However, the record shows that Mary Kaye Bronsteatter (Bronsteatter), the director of quality services at HYMC, advised Luber to prepare the plan by addressing each of the concerns expressed by Lindeman in her evaluation of Luber's performance. In addition, Luber testified that Gail Lins (Lins), a quality review specialist for HYMC, advised her to prepare the plan by coming up with concrete ways of dealing with each performance concern raised by Lindeman. Luber concedes that instead, in the only action plan she submitted, she challenged each of the concerns raised by Lindeman without addressing any of the problems caused by her own actions or offering concrete ways to deal with them.

In addition, the record shows that it would not be an EAP counselor's role to assist a client in the preparation of a performance improvement action plan, or within the scope of his authority to direct a client not to prepare one. Moreover, even if Luber had received such advice/direction from her EAP counselor, once HYMC Vice President Calhoun directed her to complete a performance improvement action plan by April 18, 2005, it should have been obvious to Luber that she was required to prepare a plan by the stated deadline.

Early in her tenure, Luber expressed the following safety concerns:

• she had observed eating and drinking in the unit, and there was a box of oatmeal stored there (1);
• the generator was not properly shielded; and
• there was a pregnant woman working in the unit.

To address these concerns, Lindeman

• posted signs in the unit in November 2004 to the effect that eating and drinking were prohibited, although she permitted one nurse who was undergoing chemotherapy for cancer to drink water in the unit when necessary
• even though the emissions from the generator were within acceptable limits, ordered a custom cabinet to enclose the generator
• permitted the pregnant employee to continue working in the unit after following the required disclosure process.

During her tenure, Luber also expressed the following concerns regarding unit procedures:

• patient data was not being properly retained as the result of a faulty optical disc
• certain of the competencies she had drafted were changed without her input
• she was assigned to train technicians to perform white blood cell scans which jeopardized her license
• the unit was using outdated computer software for its kidney program.
• technicians were not properly qualified to conduct certain exams because of the infrequency with which they administered such exams
• the unit's policies and procedures manual was outdated and should be revised.

The record shows that patient data was being properly retained in digital format on a computer hard drive and in printed form in individual patient x-ray jackets; certain of the competencies Luber had drafted were modified to bring them into line with the actual responsibilities of technologists and to make them more understandable; Lindeman understood from her contacts with state regulators that Luber's license was not jeopardized by training technicians to perform white blood cell scans; although the software was difficult to use and slow, it accomplished its purpose and did not jeopardize patient safety; the exams referenced by Luber were rarely if ever performed at HYMC, and that it had been Luber's assignment since the beginning of her tenure at HYMC to revise the policies and procedures manual.

In order to sustain her burden of proof, Luber would have to show that her probation was extended and her employment terminated in retaliation for reporting a violation of state or federal law, or a potential risk to public health or safety caused by the violation of a standard, within the meaning of Wis. Stat. § 146.997(2) of the Health Care Worker Protection Act (HCWPA).

Even if the concerns raised by Luber satisfied Wis. Stat. § 146.997(2), the record does not show that Luber's probation was extended or her employment terminated in retaliation for raising these concerns. It would not have made sense for HYMC to retaliate against Luber for pointing out ways in which the unit could be improved because that was one of the reasons she had been hired. Moreover, at the time of the probation extension/discharge, the concerns she had raised had either been resolved, had been investigated and reasonably concluded to not require further action, or were Luber's responsibility in the first place.

The record shows instead that Luber's probation was extended and her employment terminated because of her unsatisfactory probationary performance. Luber, operating under an inflated perception of her position (2)   and an attitude of superiority in regard to her credentials, performed her duties with little regard for the opinions or responsibilities of her coworkers, or the expectations of her supervisor. Luber's communication with others was inadequate, and she exhibited a lack of initiative or even desire to improve it. (3)   Luber was reluctant to accept supervision or to acknowledge shortcomings in her performance, and, when directed to prepare a performance improvement action plan, insubordinately failed to do so.

Luber has failed to prove that she was retaliated against as alleged.

cc:
Attorney Stephanie M. Brown
Attorney Daniel T. Dennehy

[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]

(1)( Back ) Although Luber complained that she observed eating and drinking in the unit, she conceded in her testimony that she had never observed anyone eating in the unit. The record shows that the box of oatmeal was present in the unit because it was required in order to administer a certain test.

(2)( Back ) For example, Luber testified that she had been told at the time of hire that she would be running the unit, and it was only in April 2005 that Sieckert was designated as the unit's lead worker. However, the record shows instead that Luber had never been designated as the supervisor or lead worker of the unit, and Sieckert had performed continuously as the unit's lead worker since 2000.

(3)( Back ) For example, even when Sieckert, as he had been urged by Lindeman, visited Luber's office in an effort to improve communication between them, Luber showed little interest in interacting with Sieckert and abruptly ended the discussion by taking a phone call.

uploaded 2009/09/02