MONICA WALKER, Complainant
INDEPENDENT LIVING 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.
The decision of the administrative law judge (copy attached) is affirmed.
Dated and mailed September 30, 2010
walkemo . rsd : 125 : 9
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
Monica Walker alleges that Independent Living, Inc. (ILI) violated the Health Care Worker Protection Act (HCWPA), Wis. Stat. § 146.997, by terminating her employment as a result of her reports to management of what she believed to be ILI's violations of law, regulation or standards related to residents' care.
The ALJ concluded that Walker failed to prove by a preponderance of the evidence that ILI violated the HCWPA. The commission agrees.
Briefly, ILI is a section 501(c)(3) non-profit organization that owns and operates, among other things, three senior housing properties. The one involved in this case is a retirement community complex located at 602 N. Segoe Road. This facility houses independent apartments for older individuals, a residential care apartment complex (RCAC) and a community-based residential facility (CBRF), which is regulated by the state.
Rita Giovannoni is the CEO of ILI. Steve Mellstrom is the human resources director. Prior to November 2005, Walker worked as the Program Manager of the RCAC and was supervised by Jane Roemer, ILI's Resident Services Director. Roemer also supervised a CBRF Program Manager, Kris Felton. As the RCAC Program Manager, Walker worked 4 10-hour days, excluding Wednesdays because she and her husband were her mother's caregivers and having Wednesdays off would allow her husband, the primary caregiver, needed time off.
By October 2005, not only had Roemer tendered her resignation but Felton had also resigned from her position. As a result of these changes, ILI began a reassessment of the job description for the Resident Services Director's position. Walker agreed to become the Resident Services Director, under the supervision of Giovannoni while maintaining her RCAC Program Manager duties. Walker began this position in November 2005. As Resident Services Director, not only was Walker to continue managing the RCAC program, she also assumed responsibility for overseeing the provision of services to the residents living in the independent apartments and the provision of services in the CBFR area.
During December 2005, and February and March 2006, Walker voiced concerns to Giovannoni about staffing in the CBRF. In March 2006 Giovannoni decided that Walker was not a good fit for the Resident Service Director position and placed a blind box ad in the newspaper to hire a replacement for Walker. By early August 2006 ILI had hired someone to replace Walker with a start date of September 5, 2006. On or about August 28, 2006, Giovannoni informed Walker that her employment was terminated.
Section 146.997(1)(c) of the HCWPA provides, in relevant part, that:
"Health care facility" means ... any ... community-based residential facility ..."
Section 146.997(2)(a) of the HCWPA in essence provides, in relevant part, that:
Any employee of a health care facility ... who is aware of any information, the disclosure of which is not expressly prohibited by any state law or rule or any federal law or regulation, that would lead a reasonable person to believe ...
1. That the health care facility ... or any employee of the health care facility ... has violated any state law or rule or federal law or regulation
[or]
2. That there exists any situation in which the quality of any health care service provided by the health care facility ... or by any employee of the health care facility ... violates any standard established by any state law or rule or federal regulation or any clinical or ethical standard established by a professionally recognized accrediting or standard-setting body and poses a potential risk to any public health or safety
may report that information to any agency, as defined in s. 111.32(6)(a), of the state ... to any officer or director of the health care facility ... or to any employee of the health care facility ... who is in a supervisory capacity or in a position to take corrective action.
Section 146.997(3)(a) of the HCWPA provides, in relevant part, that:
No health care facility ... and no employee of a health care facility ... may take disciplinary action against, or threaten to take disciplinary action against, any person because the person reported in good faith any information under sub. (2)(a) ... or because the health care facility ... or employee believes that the person reported in good faith any information under sub. (2)(a) ..."
As Walker correctly states on appeal, "neither the HCWPA, nor the pleading requirements of ERD, require that a complainant specifically identify which state or federal law or rule, or ethical or clinical standard, she believes has been violated in order to obtain HCWPA protection", citing Matson v. Aurora Health Care (LIRC, 03/21/08); and that, "it is important to note here that the relevant question is not whether the complainant's allegations were sufficient to establish that a law or rule had been violated, but rather whether they were sufficient to provide a motive for the respondent to retaliate", Matson, citing Lobacz v. Dept. of Corrections, (LIRC, 11/03/05).
Citing the ALJ's Memorandum Opinion, Walker notes that the ALJ acknowledged that she sent several emails to Giovannoni voicing concerns about staffing levels at ILI, however, the ALJ finds that none of those were recognized by Giovannoni as indicating that she was raising a concern that ILI was either violating any state law or rule or federal law or regulation or were otherwise protected by the Healthcare Worker Protection Act.
Walker argues that the ALJ too narrowly construes the protections of the HCWPA by seemingly concluding that Giovannoni needed to understand that she was asserting a violation of some specific law or regulation in order for her to be protected for voicing her concerns.
This is not the holding of the ALJ's decision, however. What the ALJ holds is that Walker failed to prove by a preponderance of the evidence that Giovannoni's decision to terminate Walker's employment was motivated because of Walker reporting, or a belief that Walker was reporting, any information under § 146.997(2)(a), Stats. This is made clear by the ALJ in her Memorandum Opinion where the ALJ states that she is:
"convinced that [Giovannoni's] decision to end Walker's employment was not the result of Walker either reporting or Giovannoni believing that she had reported information under sec. 146.997(2)(a). The ALJ does not find that Walker's emails to Giovannoni raising concerns about staffing in the CBRF first on October 18, 2005 (before Walker had even been promoted to the Resident Services Director position) and again on December 6, 2005, February 23, 2006, March 6, 2006 and March 13, 2006 were recognized by Giovannoni as indicating that Walker was raising a concern that ... ILI was either violating 'any state law or rule or federal law or regulation' under sec. 146.997(2)(a)(1), Wis. Stats., or that there existed
any situation in which the quality or any health care service provided by the health care facility or health care provider or by any employee of the health care facility or health care provider violates any standard established by any state law or rule or federal law or regulation or any clinical or ethical standard established by a professionally recognized accrediting or standard-setting body and poses a potential risk to public health or safety." (Italicization emphasis added.)
Nor does the evidence show it was Giovannoni's contention that she needed to understand that Walker was asserting a violation of some specific law or regulation. Giovannoni testified she did not understand the concerns raised by Walker as being violations of state law or regulations, or raising issues of improper treatment of residents under state statutes, regulations or standards as a CBRF.
Furthermore, ILI's witnesses presented testimony and evidence which showed that ILI had legitimate, non-discriminatory reasons for ending Walker's employment.
Giovannoni testified that she had the opportunity to directly observe Walker in her new position as Resident Services Director and that Walker really struggled with the scope of the work, struggled with the supervision of a larger staff than she had previously supervised, had difficulty making sure that a staffing schedule was developed and that staff were adhering to their work shifts, and in completing all the tasks that needed to be done. Further, Giovannoni believed that Walker lacked experience or expertise in managing what it was costing on a monthly basis with respect to personnel and the ability to manage keeping in sync the assessments and level of care for the residents in the CBRF so that the income coming in to pay for the service was appropriately matched to personnel expenses. (T Day 1, 161-162)
ILI Human Resources Director, Steve Mellstrom testified that he was involved in conversations with Giovannoni and others about replacing Walker as early as February 2006. (T Day 1, 261) Mellstrom testified that the reasons included not delegating to a new administrative assistant brought on board to assist in the operations of the retirement community and issues involving low census, utilization of staff and getting employees cross-trained. (Id. at 262-264)
Giovannoni testified that in March 2006 it just became clear to her that it wasn't a good match; the way the job had been redefined and Walker in that job, that the match wasn't there and that it was a struggle. (T Day 1, 166) The respondent placed a blind box ad seeking a replacement for Walker sometime during the week of March 12, 2006. The ad first appeared in the paper on Sunday, March 19. Blind box ads were required to be placed three to five days before they would appear in the paper.
Walker argues that the timing of the decision to run the ad came directly on the heels of her refusal to continue deducting time from employee timecards for meal breaks where not permitted by law, as well as coincided with her March 6, 2006 email to management stating her under-staffing concerns and her March 14, 2006 email reiterating under-staffing concerns that she felt were not being addressed.
First, with respect to Walker's argument regarding the timing of the decision to run the ad and her refusal to continue deducting time for meal breaks, assuming for purposes of argument that this is covered under the HCWPA, (1) it fails because the evidence does not clearly show when it actually was that Walker told Giovannoni she would not deduct a half hour for meal breaks because she believed this was unlawful. Walker simply testified that she believes it was "in March 2006" when the 30-minute meal break issue reared its head again. (T Day 1, 45) Walker also cites the testimony of a former ILI accounting manager, Nancy Griego, as support to show that Walker's refusal to deduct meal break time occurred prior to ILI's decision to run the blind ad. However, Griego could only guess as to when Walker stopped deducting meal break time, testifying that, "I don't remember exactly how long, maybe a month or two after the process started, she indicated that she didn't think it was legal and she wasn't going to do it." (T Day 1, 296)
Furthermore, while closeness in timing may indicate the existence of a causal connection between the protected activity/complaint and the adverse action/discipline complained of, this does not in and of itself establish retaliation. Potts v. Magna Publications (LIRC, 02/27/01); Kannenberg v. LIRC, 213 Wis. 2d 373, 571 N.W.2d 165 (Ct. App. 1997), citing http://www.wicourts.gov/ca/opinions/97/pdf/97-0224.pdf. 957 F.2d 317 (7th Cir. 1992). Moreover, as indicated above, ILI has identified legitimate, nondiscriminatory reasons for its decision to end Walker's employment.
Walker argues that ILI points to her as a poor performer for reasons including "unmet budgets, incomplete record keeping, lack of training, lack of delegation and insubordination." Walker argues that ILI's proffered reasons for her termination are a pretext to defend a termination that violates the non-retaliation provisions of the HCWPA.
First, Walker argues that ILI provides audits done of patient recordkeeping in June and September 2006, information which ILI did not have prior to the decision to run the blind ad in March 2006, to show that she was not completing necessary recordkeeping in Individualized Service Plans (ISPs) for residents. Walker argues that ILI does not assert that it knew about any late ISP reviews when the termination decision was made in March, that Giovannoni simply testified she had periodically asked staff whether or not certain reports had been completed and claims that she periodically reviewed resident records and charts. Further, Walker argues that, in fact, in an email dated May 31, 2006, Giovannoni states that she was requesting an audit based upon "recent information about the status of ISP's." In addition, Walker argues that even if the audits could be properly considered as supporting the termination decision she assisted in performing the June audit and ILI only provided the audit page for four of the nine CBRF residents which showed two instances of late filed reports. Walker argues that one of the asserted late reports implied to have been her fault was a late report that had been done in July 2005, before she took the Resident Services Director job.
The record, however, shows that the respondent was aware of issues regarding Walker's difficulty in getting the ISPs in place for residents
early during Walker's employment as the Resident Services Director. (T Day 1, 160) Giovannoni testified that frequently there would be a disconnect because the evaluations for level of care for residents, which carried a certain dollar amount, weren't current in order to cover the costs of the workforce needed to be present to care for the residents. (Id. at 163) Indeed, the evidence shows that well before the June and September Audits, Giovannoni was repeatedly questioning Walker as to whether residents were up to date regarding their ISP assessments. See Giovannoni emails to Walker on the following dates: December 6, 2005 (Complainant's Exhibit #2a) ("The detail on the level of care especially for Parker, Mildred and John seems to imply they are very high level of care. Parker and Mildred are Level 3. How is it that John is only a Level 2 rate? Should this be reexamined?"); February 22, 2006 (Complainant's Exhibit #3b) ("I believe the staffing level is adequate given the census at the CBRF. If, however, the resident assessment is that this particular resident needs uninterrupted observation during mealtime we may need to discuss with the family: 1. alternative placement for him/her or 2. additional one on one staffing for him/her at these times for an additional fee..."); and March 6, 2006 (Complainant's Exhibit #4a) ("I would like to know where you are at with the assessments of the CBRF residents using the functional screening format that Kris Colby had set up. It is my understanding that what was reported at the last S&P meeting is not what is being billed based on levels of care presented for some of the residents. If reassessments are needed I would like them to be done this week and residents/families notified of the level of care changes and accompanying rate adjustment effective immediately.").
Prior to Giovannoni's March 6, 2006 email, ILI had discovered in February 2006 that a comparison of the billing rates to levels of service for five residents did not match. (Respondent's Exhibit #20) Furthermore, while the June and September audits were obviously done after March and one of the late reports shown in the June audit may not have been Walker's fault, the June and September audits merely confirms the existence of the earlier difficulties Walker experienced with respect to keeping resident's ISPs up to date.
Next, Walker argues that probably the most telling evidence of pretext in ILI's proffered legitimate, non-discriminatory reasons for her termination is the fact that Giovannoni had the opportunity to document the "myriad" of alleged performance issues when she met with Walker to conduct her performance evaluation on April 18, 2006. Walker argues that Giovannoni did not raise a single performance concern during the performance evaluation nor document any concerns via the performance evaluation forms used by ILI management. Further, Walker argues that quite the opposite, the evidence shows that as Resident Services Director she received a "no-deficiency" audit for the RCAC from the state in June 2006 and an email from Mellstrom commending her for the successful audit, as well as a "no-deficiency" audit for the CBRF in April 2006 and a thank you note card (signed "Marilyn & Rita") stating "You are a great asset to our team!"
Walker's "most telling evidence" is entirely unpersuasive, however. In March 2006 Giovannoni had already not only made the decision to terminate Walker's employment but she also had ads placed in the newspaper seeking a replacement for Walker, both events, of course, which were before the April 2006 performance review. Thus, there simply was no reason for Giovannoni to expound on Walker's performance deficiencies as Resident Services Director at the time of the April 2006 performance review. Furthermore, this was particularly true since Giovannoni did not believe that the continued employment of Walker as Resident Services Director would be detrimental to ILI until a replacement could be found for Walker. Further, with respect to the "no-deficiency" audits, as noted by the respondent, many individuals are involved in the operation of the respondent's facility and the audits. Indeed, Mellstrom's email was sent to "allstaff@indepenliving.com" and not only congratulates Walker, but also thanks "Cindy Olson, Julianne Dwyer and everyone else who was involved in the survey." Moreover, as admitted by Walker, the state audits did not review, comment on or make any findings in regard to the type of issues that the respondent found lacking in her performance, such as cross-training, good use of staff, occupancy rates and meeting budgets. Further, as also admitted by Walker, the thank you note card was sent by Marilyn Lawler (at the time responsible for marketing and human relations), who signed it from "Marilyn & Rita".
Next, citing paragraph number 35 of the ALJ's decision in which the ALJ includes findings regarding the resident census in the CBRF as of March 2006 and the budget deficits in which the RCAC and the CBRF were operating during the 3-month period ending March 31, 2006, Walker argues that apparently one is to derive that any shortfall in actual income versus budget income must be attributed solely to her. Walker argues that she did not participate in the development of the budget and received her first copy of the budget in April 2006 only after demanding it. Further, Walker argues that conspicuously absent is any comparison to "profitability" prior to her taking over as the Resident Services Director. Walker argues that during the time that Roemer was Director she was under the budgeted census for the RCAC (i.e., below the budget of 16 residents) for six of the ten months during the period from January 2005 through October 2005, but was not terminated. Walker also argues that the evidence shows that the CBRF census at the time she became Director in October 2005 to be ten residents, exactly the same number as when the decision was made to fire her in March 2006.
Walker's arguments about not "participating in the development of the budget" and not receiving her first copy of the budget until April 2006 misconstrues the respondent's concerns about her performance with respect to budgeting. Giovannoni's testimony was that the area that Walker struggled with was in managing what it was costing on a monthly basis the respondent's biggest cost, which is personnel, relative to the census occupancy and the acuity or level of care of the residents in the CBRF, so that income coming in to pay for the service was appropriately matched to personnel expenses. (T Day 1, 162) As evidence of the problem, Giovannoni referenced the emails by Walker raising concerns about not having enough staff and stated that there was a disconnect between having all the residents up to date as to their level of acuity (level of care), which would generate income to cover the costs of the workforce needed to be present to care for the residents. Further, Walker's arguments regarding the absence of any comparison to "profitability" prior to her taking over as Director and that Roemer was under the budgeted census for the RCAC for six of the ten months from January 2005 through October 2005 fail. The evidence shows that Walker was under the budgeted census in each of the five months during her time as Director from November 2005 until March 2006 (which translates to 72% census occupancy) when Giovannoni made the decision hire a replacement for Walker. While Roemer may have been under the budgeted census in six of the ten months cited by Walker, Walker ignores the fact that in two months Roemer was also above the budgeted census (which translates to 75% census occupancy) for this period. Moreover, also totally ignored by Walker is the fact that Roemer was above the budgeted census for the CBRF for every single month during the period from January 2005 through October 2005. At no time had the CBRF budgeted occupancy of 12 ever occurred while Walker was the Director from October 2005 to March 2006.
Walker also argues that the respondent asserts that her performance problems stemmed in part from her failure to cross-train staff but the respondent can point to no evidence of this beyond her (Walker's) May 19, 2006 email response to Mellstrom stating that "not all RCAC staff have been [cross-trained] as of yet." Walker also argues that while the respondent cites lack of cross-training as an example of her poor performance, when Giovannoni was asked if she knew whether or not she (Walker) was in fact cross-training her staff Giovannoni could only say that Walker may have been working on it, stating: "Don't know that it was; don't know that it wasn't." Walker's arguments are unpersuasive. First, Walker ignores Giovannoni's testimony that when Walker was put in the Resident Services Director position, cross training was something she (Giovannoni) spoke of frequently as a potentially very effective way of having a larger pool of workers; that she was talking about it from day one and did not think it ever occurred fully. Second, prior to Giovannoni's testimony that Walker quotes above, Giovannoni testified that Walker may have been attempting cross training, "but as far as I could tell, she didn't deliver that"; that Walker may have been working on it in March of 2006 but "I don't recall that being communicated." (T Day 1, 183-184)
Walker also argues that the respondent attempts to turn incomplete human resources recordkeeping into one of her deficiencies. Walker asserts that Mellstrom testified that he emailed her requesting updated training certification information and provided a spreadsheet seemingly showing incomplete training by Walker of her staff on March 22, 2006. Walker argues that the incomplete spreadsheet was not her training record, but one maintained by human resources. Walker argues that this is just another example of a pretextual performance issue that the respondent tries to use to support its decision to terminate her; that at the time the decision was made in March to run the blind ad, Mellstrom had not even requested that Walker provide an updated list of training in order to determine if she was or was not ensuring training was taking place.
The record evidence, however, fails to support Walker's claim that training of employees is an example of a pretextual performance issue the respondent tries to use to support its decision to terminate her. While ILI may not have requested from Walker an updated list of training prior to the time it ran an ad to replace her, the evidence shows that ILI did not believe that cross training of employees was being done by Walker prior to March 22, 2006. Further, this evidence includes the testimony by Mellstrom that he was involved in discussions to replace Walker as early as February 2006 and that the issue of cross training was a reason that was discussed for her termination. (T Day 1, 262)
Walker argues that the people who worked most closely with her, including Roemer and Diane Berry, testified to her competency and skills as an administrator and manager, and that the respondent can point to no employment file records showing otherwise. However, Roemer, who was a friend of Walker's, had left employment with the respondent at the time Walker became the Resident Services Director and thus had no firsthand knowledge of Walker's competency and administrative skills under the newly expanded duties of the Resident Services Director position. Further, Berry, who was also a friend of Walker's, was employed by the respondent as an administrative assistant when Walker became the Resident Services Director. Berry was not a competent witness to testify regarding matters such as Walker's abilities relating to management of the staff and cross-training the resident assistants.
Walker further argues that the ALJ erred in refusing to allow the testimony of Theodore Quincey as to his experience as a subordinate of Giovannoni, in refusing to allow cross-examination of Giovannoni as to her treatment of Trisha Crooks, another former employee, and in refusing to allow her testimony regarding to Giovannoni's decision to replace two registered nurses. Walker argues that these lines of questioning went to the credibility of Giovannoni and should have been allowed, especially in light of the ALJ's reliance upon the credibility of Giovannoni in reaching her decision.
The respondent objected to Walker testifying about what had allegedly occurred with respect to the RNs and the ALJ sustained the respondent's objection. The ALJ committed no error in refusing to permit this testimony. The respondent's reasons for objecting to this testimony by Walker included a lack of foundation for Walker to know the reasons the RNs were let go and who made the decision. Furthermore, Walker made no offer of proof to support the basis for this testimony by Walker. As noted by the respondent (citing Sasich v. City of Milwaukee (LIRC, 06/18/04) and Fauteck v. Sinai Samaritan Medical Center (LIRC, 11/09/00), for there to be a conclusion that an ALJ erred by excluding evidence, there needs to be some indication as to what evidence it is claimed could have been presented but for that ruling, and therefore, an offer of proof should be made.
Quincey had left employment with the respondent in June or July 2004, returned in November 2004 and then left the respondent's employ in January 2007. Quincey was apparently last employed by ILI as its Meals on Wheels Coordinator. Quincey testified that he was informed that someone had been hired for his position, so he submitted his two-week notice. When questioned further about being told that someone was hired for his position, Quincey testified that he was told that there would be something else for him but when he asked what position and about the job description he was not given a satisfactory answer by either Giovannoni or Mellstrom. The respondent objected to Quincey's testimony as having no relevance to Walker's case. Walker argued that Quincey's testimony was evidence establishing a pattern of behavior of ILI to run ads not necessarily intending to terminate someone; that it was relevant because ILI was asserting that a decision was made (regarding her employment) in March and therefore any complaints regarding her after that weren't relevant to that decision. The respondent argued that one person did not make a pattern and that Quincey's and Walker's positions were not comparable. Walker responded that the comparability of the positions wasn't the issue; it was the comparability of two outspoken individuals who challenged the authority of their manager and voiced concerns that resulted in want ads being placed. The respondent argued that it was not an impermissible reason to discharge someone because that person challenged their manager; it was impermissible to discharge someone because the person challenged a manager for the prescribed reasons under section 146.997. Walker argued that Quincey's testimony would be "very similar to standard of care type of improper - not following regulation type of claims."
The ALJ stated that she did not believe this really establishes a pattern and suggested that counsel make an offer of proof. Counsel then stated the following as her offer of proof:
...Quincey will testify to various issues related to the running of the Meals on Wheels program and how those services were or were not properly provided to the participants. He voiced those concerns; and he will testify to the frequency of voicing those concerns, and the result of voicing those concerns is that an ad was placed to hire a replacement. That replacement was hired. Mr. Quincey was advised that a replacement was hired, but he was not terminated."
This establishes a pattern of behavior by ILI to find replacements, not necessarily terminate the person, but simply shift or demote them to another area until they ultimately quit.
The ALJ committed no error in refusing to permit Quincey's testimony. Based on the offer of proof provided by Walker, Quincey's testimony, at best, had only minimal relevance. Counsel's offer of proof cited no alleged statutory law, rule or regulation violation that related to the concerns voiced by Quincey. To argue that ILI sought a replacement for Quincey simply because he viewed the services of the Meals on Wheels program as "not being properly provided" is not evidence that ILI was willing to violate the law by terminating Walker's employment because she voiced concerns about what she may have believed to be a violation of the law. Moreover, what occurred with Quincey hardly establishes a pattern of ILI finding a replacement for employees without necessarily intending to terminate those employees.
As for Crook, first of all, the matter concerning Crook did not arise during the cross-examination of Giovannoni. It arose during the cross-examination of Mellstrom. The respondent raised a relevancy objection during Walker's questioning of Mellstrom when Walker attempted to question Mellstrom about a letter he wrote (Complainant's Exhibit #29) to Crook in May 2006. Mellstrom's letter to Crook discussed the fact that since she was no longer employed with the respondent it was necessary that she provide advance notice and receive prior management approval before accessing the building, that the respondent understood that Crook had been using confidential information she had obtained from the respondent to solicit her personal services in a private endeavor which violated the ethical standards of professional conduct, and that a review of purchasing receipts and a cross check with supply inventories showed a large discrepancy and substantial loss of supplies at Segoe Gardens (the CBRF) and that if any of those products or missing items were in her possession she should immediately arrange for their return. Walker argued that Mellstrom's letter had to do with the respondent's credibility in that it was accusing Crook of stealing when it knew that nothing was missing. The respondent argued that the issue with Crook was whether or not it had good faith to believe that Crook was stealing and that whether or not it turned out to be right or wrong did not establish a case for Walker or Crook.
The ALJ agreed with the respondent's arguments and allowed Walker to make an offer of proof. Walker made no offer of proof. In fact, she withdrew the exhibit. The ALJ committed no error with respect to the matter involving Crook.
Finally, Walker also argues that even if ILI decided in March 2006 to replace her as Resident Services Director, ILI did not decide to fire her until approximately August 23, 2006. Walker argues that that decision came on the heels of her August reporting of information on possible regulatory violations at the August 17, 2006, ILI Administration Team meeting. Walker argues, as further "evidence of the retaliatory and bullying nature of [Giovannoni]", that when she pleaded at the August 17 meeting for a strategic planning session to review the ongoing CBRF staffing problems she was told she should look for a new job, and that she was further informed on August 21 that she could no longer continue working a workweek of 4 ten-hour days as she had since she started at ILI. Walker argues that although her replacement was to start work within two weeks, Giovannoni suddenly felt it was critical for her to work Wednesdays for the last week of her employment.
Walker's arguments are unpersuasive. Giovannoni did not "suddenly" feel it was critical that Walker work Wednesdays. Giovannoni had sent an email to Walker back on July 3, 2006, about her working on Wednesdays. In the July 3 email Giovannoni stated that she was concerned about Walker's 4 10-hour days; that Walker being gone on Wednesdays seems to not only create difficulties in scheduling meetings but more importantly it limited access by families and follow-up needed by residents. In fact, the evidence also shows that in June 2006 Walker was seeking employment with a previous employer in part because it had been mentioned that she might have to start working on Wednesdays. (T Day 1, 82) In any case, as also noted by the ALJ, it was likely that Giovannoni's "odd insistence as late as August 21, 2006 that Walker begin working on Wednesdays was an effort to get Walker to quit her employment before ILI had to discharge her." Furthermore, it is very likely that this same reason explains Giovannoni's suggestion to Walker at the August 17 Administration Team meeting that she should look for a new job. Finally, since ILI had already secured a replacement for Walker that was to begin employment in just two weeks, there is simply no reason to believe that ILI's termination of Walker's employment on August 28 was in any way influenced by any concerns that Walker had expressed at the August 17 Administration Team meeting.
cc:
Attorney Kay A. Millonzi
Attorney Michael J. Cieslewicz
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