P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

SONYA M COOK, Complainant


ERD Case No. CR200901889,

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 by the respondent. (1)

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 makes the following:


The decisions (2) of the ALJ in this matter are set aside, and this matter is remanded to the Equal Rights Division for further hearing, and another decision.

Dated and mailed February 10, 2011
cookson . rrr : 110 : 


/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


The complaint in this matter alleged that the respondent retaliated against the complainant in violation of the Health Care Worker Protection Act (HCWPA) because of a report she had made to her supervisor about the conduct of another employee. At hearing, the complainant began offering testimony to that effect, but the ALJ interrupted her presentation of her case, repeatedly insisting that for a report to be protected conduct under the HCWPA, it had to have been made to some outside agency, and that a report made by a health care worker to his or her supervisor could not be protected. Eventually, he said that he would dismiss the case and issue a written decision to that effect. He then asked the respondent if it had anything to present but it indicated, understandably, that if the complaint was dismissed it did not have anything. The hearing was then closed without the respondent presenting any evidence.

The ALJ's ruling was plainly erroneous. The HCWPA expressly provides that it covers reports made to a supervisor. See, Wis. Stat. § 146.997(2)(a).

Some time after the close of the hearing, the ALJ apparently realized that his ruling had been erroneous, and without any further hearing or notice to the parties, he then issued a final decision finding that the respondent had retaliated against the complainant in violation of the HCWPA based on her report about her co-worker.

The ALJ's decision must be set aside because the parties were denied an opportunity for a full and fair hearing. By his rulings, the ALJ effectively cut off the complainant's presentation of her case and effectively dissuaded the respondent from presenting any case at all. On remand, both parties should be given a full opportunity to present any admissible evidence which they wish to submit bearing on the issues in this matter.


NOTE: By setting aside the ALJ's decision and remanding for further hearing, the commission does not intend to express any views on the merits, including the question of whether the substance of what the complainant reported to her supervisors would be a protected report under the HCWPA. 3(3) Because the ALJ's rulings effectively precluded a full development of the facts at the hearing, it would be premature to attempt to make such a determination. The ALJ who presides at the further hearing in this matter should decide that and the other issues in the case once a full record has been made.

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(1)( Back ) According to the representatives for Eastside Rehabilitation Center who appeared at the hearing, Eastside is a business name of Delphi Healthcare LLC, the actual owner and operator. The caption has been modified to reflect this.

(2)( Back ) The ALJ issued a decision in this matter on November 5, 2010 and he issued an amended decision on December 2, 2010. It is the commission's intent to set aside both decisions.

(3)( Back ) The HCWPA applies to reports of any information that would lead a reasonable person to believe that the health care facility or any employee of it has violated any state law or rule or federal law or regulation, or 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 it violates any standard established by any state law or rule or federal regulation and poses a potential risk to public health or safety. Wis. Stat. ยง 146.997(2)(a).


uploaded 2011/02/14