Wis.LIRC ER Decision: Klatt - January 27, 2000 - Retaliation - discrimination because of belief or perception that complainant had opposed alleged discriminatory treatment against another individual - no showing that complainant engaged in opposition to discrimination or was perceived to have done so

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

JANE M. KLATT, Complainant

NORTHERN PINES COMMUNITY PROGRAM, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199700449, EEOC Case No. 26G970598

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 January 27, 2000
klattja.rsd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The complainant, Jane Klatt, began employment in 1988 with the respondent, an agency that provides mental health services to individuals in several northern Wisconsin counties. She performed secretarial work periodically over the next five years. After September 1995 Klatt was employed as an intermittent hourly worker, performing clerical duties at the respondent's Rice Lake offices. Ken Ahlberg, a community support program (CSP) director, was Klatt's supervisor. Klatt had also apparently performed some clerical duties on occasion at the respondent's Cumberland office under the supervision of Barb Jansen. Rudy Besmer, now deceased, was the respondent's executive director.

Klatt alleges that in response to a belief or perception that she opposed alleged discriminatory treatment against another individual, Pamela Jarvis, the respondent made her working conditions so intolerable that she was forced to resign from her position in Rice Lake in August 1996, and that in October 1996 the respondent refused to allow her to continue employment at the Cumberland office based upon a belief or perception that she was assisting Jarvis in a proceeding under the Wisconsin Fair Employment Act.

The ALJ concluded that Klatt failed to show probable cause to believe that the respondent violated the Act by retaliating against Klatt for opposing a discriminatory practice or for testifying or assisting in any proceeding under the Act. Klatt's petition for review of the ALJ's decision does not contest any procedural or evidentiary ruling made by the ALJ, does not contest any finding of fact made as being unsupported by the record, nor does it claim that any conclusion of law made by the ALJ is in error. Nevertheless, the record in this matter has been reviewed to determine whether the findings of fact and conclusions of law are supported. Concluding that they are, the commission has adopted them as its own.

The record shows the following. Klatt's duties included making entries in a log book to keep counselors apprised of what was happening with the mental health clients, and completing a form called an incident report when necessary. It is apparent from the incident report form that it was to be used for reporting claims/incidents involving personal injury or damage occurring on the respondent's premises. In June 1996, Klatt made entries in the log and completed an incident report on same setting forth hearsay information she received from a client regarding other staff personnel, including allegations about Joan Diesterhaft, a case manager. In a subsequent July 1, 1996 memo to Klatt, Ahlberg requested that she refer client-related concerns directly to the client's case manager and, that information involving staff be referred directly to the staff while questions about staff work performance, conduct or ethics be referred to himself or another individual in management. In a July 3, 1996 memo to the clerical staff, CSP staff and mental health case managers, Ahlberg set forth his findings regarding the allegations about Diesterhaft (which was they could not be corroborated) and then ended with the following comment: "In the future as I have discussed with many of you please refer these situations through established channels and refrain from discussion that can only detract from our clinical responsibilities and staff morale."

Ahlberg's intent in writing these memos was not meant to be a personal attack against Klatt. Nevertheless, she viewed Ahlberg's memos as such and responded with a sarcastic and harshly worded memo very critical of Ahlberg, with copies to, among others, Besmer, other staff, the board of directors and a union representative.

Klatt notified Ahlberg by memo dated August 26, 1996 that she was resigning from her position of back-up secretary at Rice Lake. Klatt gave two reasons for her resignation in this memo to Ahlberg. One was that Ahlberg would not respond to her repeated requests for direction as to the proper channel to follow for reporting incidents at the Rice Lake Center. The second was that Ahlberg had announced at a meeting before telling her that she would no longer be the back-up secretary upon the hiring of someone to replace the existing secretary. In a second memo also dated August 26, 1996, Klatt notified, among others, Rudy Besmer, the union, and the respondent's board of directors of her resignation. In this memo Klatt expressed how disappointed she was with Besmer, the union and the board of directors that nothing was done regarding her plea for direction from her immediate supervisor, Ahlberg.

Klatt apparently contends that her working conditions were made intolerable because following her June 1996 log entry and incident report Ahlberg would not give her direction as to the proper channel to follow for reporting incidents and that his refusal to do so was in retaliation for her perceived support opposing alleged discriminatory actions by the respondent against Jarvis. This contention fails. As found by the administrative law judge, Ahlberg's directions to Klatt were reasonably clear as to what course of action she should follow. See Exh. 5. Furthermore, Klatt had not done anything to oppose any alleged discriminatory practice for the respondent to believe or perceive that she opposed any discriminatory practice toward Jarvis. Klatt's complaint that Ahlberg had announced that she would no longer be back-up secretary at a dialog meeting before informing her fails for this reason as well. Further, Ahlberg testified that Klatt already knew she would not be performing the back-up secretary duties because of a new part-time secretary position that was being created. Ahlberg testified that when he discussed the part-time position with Klatt she had indicated she was not interested in the part-time position.

Klatt claims that the respondent retaliated against her by refusing to allow her to continue her employment at the Cumberland office in October 1996 because she had been listed as a witness in a discrimination complaint Jarvis' attorney mailed to the Equal Rights Division on or about August 15, 1996. However, Klatt has failed to establish that anyone at the respondent, including Ahlberg and Besmer, had been aware that Klatt's name had been included as a witness for Jarvis' complaint prior to October 29, 1996, the date the respondent informed Klatt that it would not be employing her. Furthermore, the evidence shows that the respondent's management was under the assumption that Klatt had tendered her unconditional resignation by her August 26, 1996 memorandum. As stated in correspondence to Klatt dated October 29, 1996:

".At a minimum, your memorandum of August 26, 1996 fails to make it clear that you merely wished to discontinue your assignment as a backup secretary at Marshall 12. Indeed, by using that memorandum as a vehicle for venting your frustrations and castigating the management, the directors and the union hierarchy at Northern Pines, it was only reasonable to conclude that your objective was to sever all ties with this agency."

cc: Michael D. Schwartz
James R. Scott

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