CYNTHIA LEE HOYER, Complainant
CALUMET MEDICAL CENTER, 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.
The decision of the administrative law judge (copy attached) is affirmed.
Dated and mailed May 7, 2010
hoyercy . rsd : 125 : 9
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
Cynthia Hoyer worked in a housekeeping position for the respondent, a medical center, from November 14, 2001 until May 11, 2007, when the respondent terminated her employment.
During a counseling session on May 3, 2007, with Holly Keyser, a county mental health counselor, Hoyer related problems that she had with Mary Karls, a co-worker. Several times during the session Hoyer stated "I should shoot the bitch" and "I should put her out of her misery." Due to Hoyer's comments, Keyser and her supervisor determined that this presented a "duty to warn" situation.
Keyser first notified the Calumet County Sheriff's Department. Deputy Daniel Kuharski from the sheriff's department met with Keyser and was informed that Hoyer had stated she would get a gun and shoot Karls. Kuharski contacted both Hoyer and Karls. According to the written report prepared by Kuharski after investigating the matter, Hoyer stated that she did not know where Karls lived and did not have access to a gun, nor had she ever held a gun in her hands before. Kuharski's report states that Karls expressed some concern as to whether or not she would be safe at the hospital. Kuharski's report states that he informed Karls that Hoyer did not have any plans to return to the hospital to work, and that if she had any problems with Hoyer in the future she should contact the appropriate law enforcement agency. Kuharski's report states that he then made contact with Keyser and informed her of the conversations he had with Hoyer and Karls, and that Keyser stated she would be contacting the respondent and informing it of the situation per her supervisor.
Keyser testified that when she spoke to Kuharski he stated that "I don't think there's anything to be worried about." Nevertheless, Keyser called the respondent and told the respondent's president, Travis Anderson, that Hoyer had stated she had thoughts to shoot Karls. Keyser testified that she did because her office had determined that there was a duty to warn.
On May 4, 2007, the captain of the county sheriff's department faxed a copy of Kuharski's report to Anderson.
After learning of Hoyer's threatening statements, on May 7, 2007, the respondent obtained a temporary restraining order against Hoyer from the Calumet County Circuit Court. The respondent's work rules provide that immediate dismissal can result from incidents of verbal threats directed at an employee. By letter dated May 11, 2007, the respondent notified Hoyer that her employment was terminated for threatening a co-worker.
Hoyer filed a complaint with the Equal Rights Division on July 26, 2007, in which she alleged that the respondent discriminated against her with respect to her terms and conditions of employment and termination of employment because of her "use or nonuse of lawful products" and because of her disabilities, which she listed as: Post Traumatic Stress Disorder; a depressive disorder with impulsive features; and a history of alcohol binging. In her complaint, Hoyer alleges that she was the victim of malicious rumors and verbal and physical abuse from her co-workers which she reported to management with no results; that she entered a treatment center for alcoholism in April 2003 for 92 days, after which the abuse escalated; that she was placed on a medical leave from April through June 10, 2006 due to extreme depression and anxiety caused by malicious gossip/rumors generated about her by co-workers; and that she was terminated on May 11, 2007, for seeking counseling outside of employment and because of her counselor's misconstruing comments she made while aggravated by a co-worker's continued abuse and the respondent's neglecting to take action.
The evidence of record fails to support a showing of probable cause to believe that the respondent discriminated against Hoyer in violation of the WFEA with respect to her terms and conditions of employment and termination of employment because of her "use or nonuse of lawful products off the employer's premises during nonworking hours" (1) or because of a disability.
An individual with a disability is defined under the WFEA to mean an individual who: "(a) Has a physical or mental impairment which makes achievement unusually difficult or limits the capacity to work; (b) Has a record of such an impairment; or (c) Is perceived as having such an impairment." Wis. Stat. § 111.32(8).
Even assuming for purposes of argument that Hoyer has one or more disabilities, most notably missing in the record of this case is any evidence which establishes that the alleged abuse Hoyer suffered from her co-workers (which the testimony at the hearing focused exclusively on Mary Karls) was because of Hoyer's alleged disabilities, or that any person at the respondent who had any responsibility regarding Hoyer's terms and conditions of employment or termination of employment knew that Hoyer had a disability, or perceived her as having a disability.
Hoyer's immediate supervisor, Robert Zastrow, and the respondent's Director of Hospital Support Services, Susan Jorgensen testified that they were aware that Hoyer had been granted three medical leaves of absences, but both testified they had no knowledge of the reasons for those medical leaves. Joy Marks, who was the respondent's employee health nurse until the middle of October 2006, testified that none of the medical documentation she receives from healthcare providers is shared outside of the employee health department; that the only communication between her department and the departments outside her department is to provide notice that a medical leave has been granted and the anticipated length of the leave.
Hoyer admitted to taking three medical leaves during her employment with the respondent, and admitted that when she needed a medical leave it was granted. Further, Hoyer testified that the only disability accommodations she requested were "dignity and respect from Vince Caloochi (phonetic) and to be treated equal."
Zastrow testified that on the one occasion Hoyer reported to him that Karls had "physically assaulted [her]" that the action he took was to "follow up through policy". Zastrow further testified that action was taken in light of Hoyer's complaints about Karls' behavior toward her. Jorgensen testified that the respondent investigated Hoyer's complaint that Karls physically assaulted her by questioning both Hoyer and Karls about the situation. Responding to Hoyer's questioning, Jorgensen testified that Karls "indicated she didn't know you were in the hallway, and [that] she doesn't know for sure, but she thinks she brushed against you." T 89. Jorgensen further testified that she thinks she has some notes documenting this. Id. Jorgensen also testified that she believed Hoyer had complained about Karls' behavior about four or five times and that the action Jorgensen took was to speak to Karls on several occasions. T 90.
On appeal from the ALJ's decision, Hoyer asserts that she was confused and not quite prepared for the hearing because prior to the hearing she made several calls to the ALJ with questions, but the ALJ did not return her calls. Specifically, Hoyer asserts that "they" did not let her know who would be at the hearing, which she had a right to know before the hearing took place, and that she had a question about whether she "could have somebody take notes, so I could ask questions back." The circumstances regarding the ALJ's alleged failure to return Hoyer's calls is not known. However, with respect to having a right to know who would be at the hearing before the hearing took place, an information sheet that the ERD attached to the Notice of Hearing sent to the parties on April 23, 2008, informed the parties that "By no later than 10 days before the date of the hearing, each party must send the other party - and file with the division - a list of any witnesses and any documents they may want to use at the hearing. ..." (Emphasis added.) Further, the case file contains a copy of a letter from the respondent's counsel addressed to Hoyer dated August 11, 2008 (with a copy to the ALJ which the ERD received on August 12, 2008), to which the respondent attached its witness and exhibit list for the August 22, 2008 hearing in this matter.
While it is unfortunate that Hoyer apparently did not know prior to the hearing whether she could have someone take notes so she could then ask questions based on the notes, this should not have affected her preparedness for the hearing. The Certification to Hearing Notice that the ERD sent to the parties on February 28, 2008, informed the parties that "At the hearing, you should be ready to offer testimony and evidence to support your case."
Hoyer asserts that "everybody lied" at the hearing except for Deputy Sheriff Kuharski, who stated that she was no threat, but Keyser went ahead and told the respondent she was going to get a gun and shoot Karls. However, Hoyer has not stated any basis as support for this assertion, and the record fails to reveal any reason to believe this assertion. Specifically with respect to Keyser, the record shows she was convinced that Hoyer might harm Karls. Keyser's progress notes of the May 3, 2007 session with Hoyer states that Hoyer "seems very angry as she speaks" and that Hoyer stated several times throughout the session that "I should shoot the bitch" and "I should put her out of her misery."
Hoyer also asserts that "witnesses" that were subpoenaed were not produced, that records from "H & R Doctor & EAP counselors" were disallowed, and apparently, that none of her evidence from her counselors and doctors was accepted at the hearing.
The only indication in the record of any subpoenaed witness not produced was the respondent's CEO, Daniel Neufelder. The ALJ granted the respondent's motion to quash Hoyer's subpoena of Neufelder. The respondent submitted, in support of its motion, an affidavit from Neufelder stating that he did not participate in the decision to terminate Hoyer and had no knowledge of the circumstances leading to her termination. Hoyer's reason for subpoenaing Neufelder was to present to him a document which provided evidence of his receipt of a letter from her in which she reported that she had a mental illness. The ALJ noted that Hoyer could do this on her own without Neufelder's presence. However, even had Neufelder attended the hearing and admitted to receiving Hoyer's letter, Hoyer's letter in which she reports that she had a mental illness would not constitute competent evidence to prove that she had a mental illness, or prove that Neufelder believed that she had a disability.
The record shows that Hoyer had requested the respondent to produce all of Karls' personnel records, but the respondent objected on the basis of relevance and the privacy concerns of Karls. The ALJ ruled that the respondent did not have to produce Karls' records. Hoyer's reasons for requesting Karls' personnel records was to see if Karls received EAP counseling and if the respondent was going to terminate Karls. The ALJ refused Hoyer's request for Karls' personnel records on the grounds that they were not relevant. The ALJ did not err in refusing Hoyer's request for Karls' personnel records.
Hoyer has not identified what evidence from her counselors was not accepted at the hearing. The record shows that evidence from Hoyer's counselors and Doctor Jose Alba was admitted as evidence at the hearing. See, e.g., Exhibits 1, 2 and 3. The only doctor's report not admitted into the record is a letter dated April 19, 2006, addressed "To Whom It May Concern", from a Doctor Christine M. Bockhorn that was marked as Exhibit 7. The record shows that the ALJ refused to admit this document based on the respondent's objections of lack of foundation and hearsay. T 48. Hoyer attempted to introduce this document during questioning of Joy Marks. The letter indicates that Hoyer "has had problems with anxiety, depression and alcoholism in the past." Even assuming for purposes of argument that this document should have been admitted as evidence, it does not provide reason to believe that the respondent discriminated against Hoyer on the basis of disability. The doctor's letter is dated around the time of Hoyer's medical leave of absence taken in April 2006. Presumably, this letter would have gone to Marks in the respondent's employee health department. Hoyer essentially admits this. T 104. As noted above, Marks testified that none of the medical documentation she receives from healthcare providers is shared outside of the employee health department; that the only communication between her department and the departments outside her department is to provide notice that a medical leave has been granted and its anticipated length of the leave. Also, both Zastrow and Jorgensen denied any knowledge of the reasons for Hoyer's medical leaves.
Finally, Hoyer also asserts that she "Needed assistance, in which I did not get, which is against [the] Americans with Disabilities Act." It appears that Hoyer is asserting that the respondent did not provide her with any accommodation for her alleged disabilities. Again, assuming for purposes of argument that Hoyer has a disability, the testimony presented at the hearing was that Hoyer never requested any accommodation. Furthermore, as noted above, Hoyer herself testified that the only disability accommodations she requested were "dignity and respect from Vince Caloochi (phonetic) and to be treated equal."
Attorney Doris E. Brosnan
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(1)( Back ) Hoyer's claims of discrimination because of use or nonuse of a lawful product off the employer's premises during nonworking hours relate to her May 3, 2007 counseling session with a mental health counselor. However, the prohibition against discrimination on the basis of use or nonuse of a lawful product was intended to provide protections for use/nonuse of products such as tobacco or alcohol. In any case, a counseling session with a mental health counselor is not a "product", but a service.