JOLENE JOY ORLOWSKI, Complainant
TOWN OF ROME POLICE DEP'T, 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:
1. In Finding of Fact 18, the second-to-last sentence ("Grosz was aware of the rumor") is deleted.
2. In Finding of Fact 27, the phrase "In the afternoon of April 14th" which begins the fourth sentence, is deleted, and the phrase "In the afternoon of April 15th" is substituted therefor.
3. In Finding of Fact 31, the last sentence ("After about a half-hour, the following exchange took place (Ex. 7, p. 24)", and the inset quotation which follows, is deleted, and the following is substituted therefor:
After about a half-hour, the following exchange took place:
ORLOWSKI: ... I don't think that - I think a lot of things that you do in treating me are wrong, and I feel like I'm being abused or whatever the word is, discriminated. It's not - I don't feel that I am being treated fairly. (Inaudible).
STASHEK: Do you feel harassed in order (inaudible) to because that is something that needs to be addressed right now (inaudible).
ORLOWSKI: I don't really feel that I'm coming across.
STASHEK: You're coming across. You're being harassed and you're being discriminated against.
4. Delete Findings of Fact 40 through 45 and substitute therefor the following:
40. Grosz spoke to Lauby on April 26, 2006 concerning Orlowski's progress. Lauby told Grosz that he was concerned about her decision making, information comprehension and retention abilities. Grosz reviewed Lauby's DORs for April 19, 20, 24 and 25.
41. Under the official written policies of the Town of Rome Police Department, the Chief of Police has the power to make the final decision regarding dismissal of probationary officers. All that is required to bring about the termination of a probationary police officer, is for the Chief to make his recommendation to that effect to the Police and Fire Commission ("PFC"), and the officer "shall" be terminated "upon such recommendation." While official written policies of the Town of Rome require that the PFC act on a recommendation by the Chief of Police to retain and grant permanent status to a probationary officer as of the end of their probationary period, no official written policies of the Town of Rome require that the PFC act on a recommendation by the chief to terminate a probationary officer.
42. On April 27, 2006, Grosz telephoned the chairman of the PFC, Landowski, and asked her to come to his office to talk to him. Landowski went to Grosz's office that morning. At that time, he gave her a copy of a five-page memo, dated April 27, 2006 and addressed to the PFC, recounting Orlowski's training from April 11th through April 26th. (Ex. 1, Tab 8). Grosz also told Landowski that "this just was not going to work out" and that he felt that the only alternative or choice he had was to terminate.
43. After her meeting with Grosz on April 27, 2006, Landowski went home and telephoned the other members of the PFC, individually, and reviewed with each the five-page memo from Grosz (Ex. 1, Tab 8) which he had given her earlier that morning. Landowski made these contacts by separate telephone calls with each member, individually, rather than by way of a conference call, specifically so that there would not be a "meeting" of the PFC which would be subject to the open meeting law. According to Landowski, in these telephone calls, each member of the commission told Landowski that they concurred with the decision to terminate. However, this was never documented in any written form.
44. Later in the afternoon on April 27, 2006, after her telephone calls with the members of the PFC, Landowski received from Grosz another memorandum dated April 27, 2006 and addressed to the PFC, this one of one page (Ex. 8). This memorandum stated that its purpose was to inform the commission that for the reasons it outlined Grosz was recommending that Orlowski be dismissed, and it asked the members of the commission to support Grosz's decision to dismiss Orlowski. Copies of Orlowski's Daily Observation Reports were attached to this memo.
45. On the following day, April 28, 2006, Grosz met with Orlowski and informed her that her employment would be terminated. He also informed her that he would accept her written resignation if it was given to him by 3:00 P.M. that day.
46. At the point at which Grosz informed Orlowski that she was terminated on April 28, she had completed 391.5 hours of observed training. The minimum number of hours under the field training and evaluation program for progressing from phase 2 to phase 3 (solo patrol) was 480.
47. On May 4, 2006, Grosz issued Orlowski a memorandum of that date noting that he had not received a written resignation from her, and also informing her, "I am officially dismissing you from employment with the Rome Police Department."
48. There is no evidence that any formal meeting of the PFC was ever held prior to May 4, 2006 concerning the employment of Orlowski. No written records or notes of the PFC exist regarding the termination of Orlowski's employment.
49. Chief Grosz had the authority to make, and did make, the decision to terminate Orlowski.
50. Grosz's decision that Orlowski's employment should be terminated was caused in part by Orlowski's complaint about Stashek's treatment of her, which Grosz understood to include a complaint of discriminatory treatment based on her sex.
51. The termination of Orlowski's employment would not have occurred in the absence of the motivation to do so based on her expressed opposition to discrimination.
6. Paragraph 4 of the administrative law judge's ORDER is deleted, and the following is substituted therefor:
That within 30 days of the expiration of time within which an appeal may be taken herein, Respondents shall submit a compliance report detailing the specific action it has taken to comply with the commission's decision. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P. O. Box 8126, Madison, Wisconsin 53708. The statutes provide that every day during which an employer fails to observe and comply with any order of the commission shall constitute a separate and distinct violation of the order and that, for each such violation, the employer shall forfeit not less than $10 nor more than $100 for each offense. See Wis. Stats., § § 111.395, 103.005(11) and (12).
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed October 9, 2009
orlowsk . rmd : 110 :
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
The complainant alleged that she was discharged from her job as a probationary police officer because she had engaged in statutorily protected opposition to what she believed in good faith was sex discrimination.
The complainant argued that there was retaliatory animus on the part of both Officer Stashek, and Chief of Police Grosz. Her theory of liability was that the discharge decision was made by Chief Grosz, and that it was unlawful both because it was influenced by poor ratings given to Orlowski by Stashek
due to his retaliatory animus (1), and because it was directly affected by the Chief's own retaliatory animus. The employer argued that Orlowski did not say or do anything which was or could have been understood by the respondent as an allegation of discrimination and thus that there could have been no discrimination against her in retaliation for that. It argued alternatively that Orlowski did not in fact have a good faith belief that she was being discriminated against, so that any "opposition" she did engage in would not have been legally protected. It also argued that the decision to discharge her was motivated by a non-discriminatory belief that her performance was inadequate, and not by any retaliatory motive. It also argued that the discharge decision was ultimately made by the Police and Fire Commission, and that since the ALJ expressly found that the PFC had no knowledge of Orlowski having engaged in any protected conduct, it could not be found that there was any unlawful retaliation.
Discussion - The commission would initially note that it is in agreement with the rationale of the ALJ, discussed in the sixth paragraph of his memorandum opinion (on p. 18 of his decision), regarding the question of Orlowski's good faith. The commission believes, as did the ALJ, that Orlowski was credible in asserting that she genuinely believed, in good faith, that she was being discriminated against because of her sex. Her conduct was thus protected.
Because retaliation for engaging in protected conduct clearly cannot occur until some protected conduct occurs and that fact becomes known to the person later alleged to have retaliated, it is essential in a retaliation case to identify the point(s) at which the protected conduct is alleged to have occurred, and the point(s) at which the individuals who are claimed to have engaged in retaliation became aware that the protected conduct has occurred. Thus, in Cangelosi v. Robert E. Larson and Associates, Inc., (LIRC, 11/9/90) the commission held:
In order to violate the prohibition against retaliation, an employer must have a belief that the person retaliated against is raising some kind of claim that discrimination is occurring. If an employer does not have such a belief, it obviously cannot be motivated by such a belief in conduct it undertakes. Thus, it is an essential element of a claim of retaliation that the complainant prove that the employer was aware that the complainant engaged in protected activities. Acharya v. University of Wisconsin (LIRC, January 19, 1982), Hochstadt v. Worcester Foundation for Experimental Biology, 425 F.Supp. 318 (D. Mass.), aff'd 545 F.2d 222 (1st Cir. 1976). In a number of cases in which an employe has protested an employment action to the employer, but in doing so has not indicated a belief that discrimination is being opposed, courts have found that the employer's reaction to that protest was not prohibited retaliation. Theiss v. John Fabick Tractor Co., 532 F.Supp. 453 (E.D. Mo. 1982), McCluney v. Joseph Schlitz Brewing Co., 728 F.2d 924 (7th Cir. 1984), aff'g. 34 FEP 271 (E.D. Wis. 1982), Moncada v. El Paso Natural Gas Company, 40 FEP 556 (W.D. Tex. 1986). See also Keller and Keller v. City of Brodhead (LIRC, April 29, 1987), to the same effect.
It is undisputed that, well prior to the meeting of April 16, the Chief of Police knew that Orlowski had complaints about the way she was being treated. Whatever the state of his understanding about the nature of Orlowski's complaints before the time of the meeting held on April 16, 2006, the commission is persuaded that by the end of that meeting, Chief Grosz understood and believed that Orlowski was objecting that she believed the way she was being treated was employment discrimination because of sex in violation of the Wisconsin Fair Employment Act. It is persuaded of this by consideration of the words spoken in the April 16 meeting, and of the overall context in which that occurred.
The commission is also persuaded that the Chief strongly resented the fact that Orlowski was making this objection to perceived discrimination, and that his resentment over this was a motivating factor in his decision to discharge her. Thus, as the ALJ found, the Chief subsequently wrote a memo explaining his decision to terminate Orlowski, which unmistakably shows that a significant factor in his decision was Orlowski's having raised an allegation about her training which the Chief found to be "without merit":
Officer Orlowski has displayed a lack of decision making ability and problem solving skills throughout the program regardless of attempting various methods/styles of teaching. Furthermore, I am disturbed by Officer Orlowski's attitude toward the field training program and other officers currently employed by the Rome Police Department. Officer Orlowski is argumentative with certain Field Training Officers who are trying to teach her proper law enforcement procedures. She has accused, without merit, field training officers of "setting her up to fail," and has outright ignored recommendations and instructions given to her by field training officers.
I strongly feel that retaining Officer Orlowski could be detrimental to the morale of the Rome Police Department. Furthermore, I do not believe Officer Orlowski has the ability to serve the citizens of Rome at the high level of professionalism and competency that I expect from my officers.
(Exhibit 8; emphasis added). Of course, the only Field Training Officer with whom Orlowski argued was Stashek, and it was Stashek who Orlowski told the Chief she thought was setting her up to fail. The Chief's indication that he was "disturbed" by Orlowski's "attitude", which he explained by citation of her allegedly making accusations "without merit" against an individual identifiable from context as Stashek, supports the inference that the discharge decision was motivated by the Chief's understanding that Orlowski was objecting that Stashek's treatment of her was discriminatory, an objection the Chief felt was "without merit."
A remaining issue has to do with the role of the Town of Rome Police and Fire Commission. The ALJ found that no one on the PFC was aware of Orlowski engaging in protected opposition to discrimination (ALJ's Finding of Fact 42). He reasoned:
On the issue of causation, while it is apparent that the Police and Fire Commission had no reason to believe that Grosz's recommendation to terminate Orlowski may have been related to Orlowski's complaint of discriminatory treatment, the fact that the commission relied on Grosz's assessment and recommendation means that if Grosz's recommendation were affected by a retaliatory motive, then the ultimate decision to terminate was also affected by that motive.
Thus, he was applying a "cat's paw" analysis to connect Chief Grosz's retaliatory motive to "the ultimate decision to terminate". This begs the question, though, of who actually made "the ultimate decision to terminate". This is important because of the argument made by the respondent based on River Falls Police Department v. LIRC (Pierce Co. Cir. Ct., Jan. 30, 1986).
In River Falls, a circuit court reversed a LIRC decision which had found the discharge of a police officer to have been unlawful retaliation. In that case, as here, the hearing examiner had found that the Chief of Police had a retaliatory motivation, but that the PFC did not. The circuit court ruled that because the decision to discharge the officer was exclusively that of the PFC, under Wis. Stat. § 62.13(5), the finding that the PFC did not have a retaliatory motive required that the decision finding the discharge unlawful had to be reversed.
While the respondent did not cite it here, there is also a reported appellate decision to a similar effect. In City of Madison et al. v. DWD-ERD and Wagner, 2003 WI 76, 262 Wis. 2d 652, 664 N.W.2d 76, the Wisconsin Supreme Court held that the exclusive jurisdiction of a police and fire commission over the discharge of a firefighter precluded the ERD from taking jurisdiction over allegations by that firefighter that his discharge was discriminatory under WFEA. The Court's rationale was that the PFC's interpretation and application of the "just cause" standard to the discharge necessarily involved the same discrimination issues that would arise in a proceeding under the WFEA, and by virtue of Wis. Stat. § 62.13(5), the PFC's jurisdiction was exclusive.
The commission concludes that neither the River Falls nor the City of Madison decisions are controlling here, because the statute involved in both cases, § 62.13(5), only applies to police officers (or firefighters) who have passed probation and obtained permanent status. River Falls and City of Madison both involved permanent, non-probationary employees whose terminations were required by that statute to be subject to final decision by their respective police and fire commissions.
The Wisconsin Supreme Court has held, in Kaiser v. Board of Police & Fire Commissioners et al., 104 Wis. 2d 498, 311 N.W.2d 646 (1981), that § 62.13(5) does not apply to probationary officers. The decision to not retain a probationary officer may be made by the employing unit (fire or police department) without the need for the hearing before and decision by the PFC which is provided for in § 62.13(5). That is what happened here.
In the Town of Rome, entry-level appointments as a police officer are probationary. The Town's policies provide that the procedures for a hearing before the PFC do not apply to dismissals of probationary employees. They require only that the PFC be "notified" of all such terminations. They say nothing about the PFC being required to approve, or act at all, on such terminations. The collective bargaining agreement covering the Town's police officers states that probationary officer "shall be terminated upon recommendation of the Chief of Police" to the PFC, without any indication that the PFC needs to, or is even allowed to, approve or disapprove any such recommendation. Most significantly, the Rome Police Department "Field Training And Evaluation Program" policies state that "[t]he Chief of Police shall make the final decision reference dismissal" of probationary officers. (Ex. 3, p. 7). The evidence about what happened in this particular case is consistent with these indications about the actual effective authority to decide to discharge probationary officers. The Chief and the PFC both acted like he had the authority to discharge Orlowski without review by or formal action by the PFC.
The commission is satisfied that the weight of all the evidence establishes that the Chief did indeed have the authority to terminate probationary employees, that the PFC did not have a role requiring it to take any formal action on such decisions, and that it did not in fact take any such action here. Thus, the principle reflected in River Falls and the City of Madison is not applicable.
NOTE: The modifications made to the ALJ's findings were intended by the commission to better conform the findings to the evidence.
The commission modified the ALJ's finding of fact number 18 because it was unable to find any direct support in the record for the ALJ's finding that Chief Grosz was aware of the rumor that Orlowski was interested in talking to Theresa Meyer. However, the commission arrives at the same ultimate result as the ALJ regarding the Chief's motivations because the record does clearly support the finding that the Chief came to believe, based on statements made in the meeting of April 16, that Orlowski was objecting to perceived discrimination against her.
The reference in Finding of Fact 27 to Stashek and Orlowski going on patrol together on "the afternoon of April 14th" appears to have been a mere typographical error by the ALJ. It is clear from the record that the patrol referred to in this finding is the one which occurred on April 15.
The commission agreed with the findings of the ALJ reflected in Finding of Fact 31, that in the meeting of April 16, Orlowski used the word "discriminated", and that within moments of that, Officer Stashek said to her, by way of recapitulating what she had just said, "You're coming across. You're being harassed and you're being discriminated against." Those findings are supported by the hearing testimony of Chief Grosz reflected on T. pp. 65-72, the hearing testimony of Officer Stashek reflected on T. pp. 137-143, and the hearing testimony of complainant Orlowski on T. pp. 199-205. They are also supported by the transcriptions contained in the transcript (on T. p. 69) reflecting the actual playing, during the hearing, of the recording of the April 16 meeting. The commission has modified the ALJ's finding of fact to make it conform more closely to what the evidence shows was said, and by whom it was said.
The commission has modified the ALJ's findings of fact number 40 through 45, concerning the circumstances of the PFC's involvement in the discharge, to indicate the basis for its view (discussed above) that Chief Grosz was legally empowered to be, and was in fact, the individual who made the decision to discharge Orlowski.
cc:
Attorney Kathleen M. Lounsbury, Attorney for Complainant
Attorney Richard J. Weber, Attorney for Respondent
Appealed to circuit court. Reversed, May 28, 2010. Appealed to the Court of Appeals. Circuit Court decision reversed and LIRC decision reinstated, September 8, 2011 (unpublished per curiam decision)
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