STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

SUMAN PRADHAN, Complainant

REHABILITATION CENTER OF SHEBOYGAN, Respondent A

FAIR EMPLOYMENT DECISION
ERD Case No. 199501676, EEOC Case No. 26G951295

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.

DECISION

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

Dated and mailed: November 14, 1997
pradhsu.rsd : 125 : 9

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

This case presents the question of whether there is probable cause to believe that the respondent discriminated against the complainant, Suman Pradhan, with respect to her termination of employment based on her national origin, color or race, and/or in retaliation for having opposed a discriminatory practice under the Wisconsin Fair Employment Act. Probable cause means a reasonable ground for belief, supported by facts and circumstances strong enough in themselves to warrant a prudent person to believe, that a violation of the Act probably has been committed. Wisconsin Admin. Code § 218.01(8). The ALJ concluded that there was not probable cause to believe that the discrimination alleged had occurred and dismissed Pradhan's complaint whereupon Pradhan has sought review by the commission.

The respondent, Rehabilitation Center of Sheboygan, provides rehabilitative and day services to individuals with disabilities. Suman Pradhan was born in India and has brown skin. She was employed by the respondent over the course of several years, during which she worked mostly in a paraprofessional capacity performing work as an activity supervisor but on two occasions had also worked in a professional capacity as a case manager for a period of time until removed from this position due to performance problems. She was returned to paraprofessional work both times that her case manager responsibilities were removed.

On November 16, 1994 Kip Ertel, Pradhan's supervisor, met with Pradhan to address concerns that he had observed and had been advised of by other staff regarding Pradhan's job performance and conduct. Ertel took this action upon the instruction of his supervisor, Wendy Yurk, vice president of services. Yurk felt that there were a number of issues involving Pradhan's performance and conduct that needed to be addressed but were not being dealt with by Ertel. Many times previously when Ertel would attempt to address work performance issues with Pradhan she would frequently state "this isn't fair, you are discriminating against me, you are torturing me, harassing me." Ertel found it frustrating in dealing with Pradhan and did not want to confront her with anything towards the end of her employment. Ertel recalled having extended discussions with Pradhan lasting up to 2 or 3 hours where she would bring up things from years past, and that he could not afford to spend this amount of supervisory time. Yurk attended the November 16 meeting along with Ertel.

As a result of the concerns about her performance and conduct, Pradhan was presented with a number of options on November 16, one of which was that she accept a referral to the Employee Assistance Program (EAP), the option chosen by Pradhan. The EAP specialist concluded that this matter was less of an Employe Assistance Program issue and more of a Personnel/Human Resources issue, and made a number of recommendations, including that Pradhan needed a clear list of expectations for behavior changes that could be observable and measurable by supervisory staff. The Respondent subsequently prepared a list of performance and interpersonal expectations for Pradhan to meet and advised her that her progress would be measured during regular reviews. When asked to sign the document listing the expectations set for her, Pradhan wrote on the document words to the effect that she had signed it because she was told she could not work if she did not, that she did not agree with this and that she believed it was discriminatory. Ertel then met with the respondent's president, Ronald Van Rooyen, who instructed Ertel to write on the document to Pradhan that this was not discrimination, it was an attempt to work with her to resolve performance and interpersonal issues which had negatively affected the Day Service Program.

Pradhan retained a lawyer who wrote to Yurk on January 16, 1995, stating that Pradhan believed much of the current problem arose out of discriminatory treatment by her supervisor and requesting a meeting. In a subsequent response, counsel for the respondent requested an itemization of the acts of claimed discriminatory treatment in order to be able to fully address the issues at the requested meeting. The respondent received no response to their counsel's letter.

Ertel noticed some improvement in Pradhan's performance during the periods covering the first two expectation reviews, although there were some problems that still existed. Shortly prior to the third expectation review, two incidents occurred. On February 27, 1995, while Pradhan was supervising a group of clients, a severely disabled client fell off of his bean bag chair onto the floor. Another client summoned Ertel who found the client lying face down on the floor and crying. The respondent investigated the incident and concluded that Pradhan had failed to provide adequate supervision of the client that had fallen off the bean bag chair. Pradhan denied responsibility for the incident, stating that she did not know the client was in the room. On March 6, 1995, a client vomited in the "candy corner" while under Pradhan's supervision. After repeated questioning of witnesses and staff involved, the respondent concluded that Pradhan had asked the nurse to clean up the vomit and had left the vomit unattended which created a situation where clients could slip and fall or come into contact with body fluids. Pradhan denied leaving the area or asking the nurse to clean up the mess.

During the third performance expectation review held with Pradhan on March 10, 1995, the review included discussion about the incident involving the client who had fallen from the bean bag chair, the incident where the client had vomited in the candy corner and the fact that in January 1995 the respondent had included as a performance expectation for Pradhan that she attend a course titled "Introduction to Interpersonal Communications". Pradhan asked why she had to participate in the performance expectation process. She stated she was not at fault regarding the issues noted in the review. Yurk, who was also in attendance at this meeting, was convinced that Pradhan was not committed to working on improving her job performance or accepting responsibility for her deficiencies. Yurk left the meeting to apprise Monica Senkbeil, vice president of human resources, of her conclusions and to request that Pradhan's employment be terminated. Senkbeil agreed with Yurk's request. Yurk and Senkbeil then met with Van Rooyen who approved the request to terminate Pradhan's employment.

After Yurk and Senkbeil returned to the meeting and Pradhan repeated, in Senkbeil's presence, that other staff were at fault and that she did not understand why she had to do the things the respondent was asking her to do, Yurk advised Pradhan that her employment was terminated. Yurk told Pradhan that an impasse had been reached, that she (Yurk) did not feel Pradhan was taking responsibility as she should for these issues, and that the respondent was setting forth good faith and time consuming effort to work with her and that the effort was not being returned.

On appeal, Pradhan makes a number of arguments in support of her position that the ALJ's decision should be reversed and a finding of probable be issued in this matter. For example, she argues that because a white coworker had not been disciplined for twice putting clients at risk, by allowing one client with a heart condition to go on a roller coaster ride and permitting another client to pump gasoline which resulted in the coworker and the client getting covered with gasoline, the respondent's lack of discipline of the coworker supports her claim that she was treated differently. This evidence fails to establish that Pradhan was discriminated against, however. The coworker stated that she had not known that the client allowed to go on a roller coaster ride had a heart condition and that if she had known, she never would have put the client on the roller coaster. With respect to the gasoline spill, it was the respondent's practice to have workers engage clients in normal every day experiences but after this incident it decided that clients should not be pumping gasoline.

Pradhan next argues that apparently she was the only employe to ever complain about discrimination, and never once were those complaints investigated. Further, she argues that the respondent could not even articulate the policy for filing and investigating a complaint. These arguments are without merit. Ertel testified that whenever he addressed an issue with Pradhan it was a matter of "discrimination," that at times he would ask her what was discriminatory about what he was doing but she never told him upon what basis he was discriminating against her, and that he told Pradhan that she could appeal to his supervisor if she felt that he was discriminating against her. Tr., Vol. III, pp. 60-61, 89, 125. Yurk also questioned Pradhan as to how Ertel had discriminated against her but could never get an answer. Tr., Vol. III, pp. 166-167. Further, the respondent had a number of written policies covering equal employment opportunity, sexual harassment, affirmative action and grievances, all of which Pradhan admitted awareness of. The equal employment opportunity policy specifically provided that it was the responsibility of every supervisor to further the implementation of the equal opportunity policy, and that the respondent's president and each vice president would be responsible for furthering its implementation and monitoring of the progress made.

Pradhan also argued that the respondent's witnesses contradicted each other and were inconsistent in the reasons given for her termination which included refusal to admit she was wrong, not taking responsibility for things she did or did not do, the fact that she was argumentative, the fact she said her coworkers lied, that she was difficult to get along with and the amount of time the respondent was spending on the expectation reviews. Further, Pradhan argues that Ertel had testified that he was surprised by the decision to discharge her and that he would not have discharged her at that time. These arguments also fail. As noted by the respondent, Pradhan's workplace problems were, for the most part, a myriad of small issues coupled with her response to those issues. Towards both supervisors and coworkers, she was unwilling to acknowledge mistakes or take responsibility for her actions. Minor issues escalated into nonproductive and time- consuming ordeals. She had difficulty consistently following policies or solving day-to-day problems. A steady stream of performance issues, coupled with a lack of commitment to improve, led to her termination. Furthermore, Ertel's actual testimony was that he would not have terminated Pradhan's employment and that he was shocked when her employment was terminated because he suspected that she would pursue the matter before an agency such as the Equal Rights Division. Tr., Vol. III, pp. 102-103, 154.

Pradhan further argues that the refusal to acknowledge misconduct which did not occur does not justify a termination and that this is just fundamentally unfair. However, when the respondent investigated the various incidents, for example, where it ultimately determined that she had not followed proper procedure, it had found the other witnesses and staff questioned to be credible. The record completely fails to provide any reason to believe that the respondent's investigation and handling of any workplace incident in which Pradhan was involved had been biased against her because of her national origin, race, color or the fact that she had complained about alleged discrimination.

Finally, Pradhan apparently argues that because she raised the issue of discrimination through the letter written to the respondent by her counsel and when signing the document the respondent prepared listing performance expectations, and because her discharge followed a short time later, the timing alone gives rise to an inference of retaliation. Further, she argues that the ALJ's decision is incomplete because he made no finding of fact in this area and fails to consider this in the conclusions of law he reaches. These arguments fail as well. First, the ALJ did in fact make findings of fact about Pradhan raising the issue of discrimination herself and through her counsel. See findings of fact 28 and 29. Secondly, as noted above, the evidence shows that it was always a matter of discrimination whenever an issue was addressed with Pradhan, and that management had previously questioned her in an attempt to find out how she was being discriminated against without any success. Moreover, after receiving the letter from Pradhan's counsel, the respondent's counsel requested that her counsel itemize the acts of claimed discrimination so that they could be prepared to fully address those issues, but received no response from Pradhan or her counsel on this. Thirdly, even assuming the timing of Pradhan's termination gives rise to an inference of retaliation, the record shows, as found by the ALJ, that the respondent terminated Pradhan's employment "essentially because of (her) resistance to the Respondent's pointing out of instances where (her) handling of situations had not met the respondent's expectations and (her) resistance to the Respondent's efforts to resolve with (her) how to improve the handling of the situations in the future." ALJ Memorandum Opinion, p. 18. Pradhan has failed to establish that these reasons were a mere pretext for retaliation against her.

For all of the above-stated reasons, the commission has affirmed the ALJ's decision finding no probable cause to believe that the respondent discriminated against Suman Pradhan with respect to her termination of employment based on her national origin, color or race, and/or in retaliation for having opposed a discriminatory practice under the Wisconsin Fair Employment Act.

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