LISA SCHULTZ, Complainant
COMMUNITY LIVING ARRANGEMENTS, Respondent
An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter in which he concluded as follows: (1) That the complainant failed to establish she was discharged for reporting alleged abuse or neglect to an ombudsman; and (2) that it was established the respondent discharged the complainant in part because she had contacted an ombudsman but the respondent also discharged her in part for legitimate, non- discriminatory reasons, and would have discharged her even had she not contacted the ombudsman. As a result of the latter conclusion the remedial relief awarded by the ALJ was limited to a cease and desist order and stipulated attorney's fees and costs.
Both parties filed timely petitions for a review of the ALJ's decision.
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, and after consultation with the ALJ with respect to impressions of the credibility of the witnesses, the commission makes the following:
1. The respondent, Community Living Arrangements (CLA) is a non-profit organization that operates community-based residential facilities (CBRFs) and adult family homes for individuals with severe developmental and physical disabilities. The Dunbar home, located in Delavan, Wisconsin, is one of the 15 CBRFs that the respondent operated in January 1999. The respondent provides personal care and supervision for the residents of its CBRFs. This includes taking care of the residents' personal hygiene, toileting, meal preparation, assistance with eating, administration of medications and taking them out into the community for various activities.
2. Sonja Nottelson is the executive director of CLA and the president of its board of directors.
3. The respondent is funded by federal, state and county dollars, and thus subject to a number of regulatory agencies. At the state level, a Department of Health and Family Services licensing certification specialist licenses CBRFs and adult family homes, inspects them for compliance with various administrative regulations and investigates complaints received about CBRF and adult family homes. If violations are found, deficiency notices may be issued, and forfeitures assessed and/or fines imposed.
4. Also at the state level is the office of the long-term care ombudsman. The authority of the state ombudsman includes, among other things, the ability to investigate complaints concerning improper conditions or treatment of aged or disabled persons receiving long-term care, and the ability to serve as a mediator or advocate to resolve problems or disputes relating to long-term care for the aged or disabled. Although authorized to investigate complaints regarding treatment of the aged, the state ombudsman has no authority to impose fines or remove an individual's license to operate CBFRs and adult family homes. Instead, depending upon the information received, the state ombudsman may refer the complaint to the DH&FS's licensing specialist, who has such authority.
5. Lisa Burrows is employed as the registered nurse, certified trainer and a supervisor for the respondent. Burrows began in 1997, initially working part time. In November 1998 she started working full time.
6. Lisa Kortens was employed as the program manager for the respondent. Kortens oversaw the respondent's group homes and adult family homes, supervising the staff and care of the residents. Kortens was second in command under Nottelson. Kortens was on maternity leave status from late November 1998 through January 1999. Kortens ended her employment with the respondent in June 1999, apparently having concluded that she could not work full time after having another child.
7. Below Kortens were the house managers for the respondent's group homes and adult family homes. Kristen Dopke, who began employment with the respondent in March 1997, was the house manager for the Dunbar facility from about September 1997 until March 2000. Dopke's employment ended because Nottelson gave her the option of quitting or being terminated. As house manager, Dopke's responsibilities were to supervise the staff and oversee the home and the residents that lived there. Dopke had private living quarters upstairs above the Dunbar home. During the week, Dopke was required to be at the Dunbar facility to perform her job responsibilities during the hours of 7 a.m. to 9 a.m. and from 3 p.m. until 7 a.m. the next day. Also, every other weekend she was required to be there for the entire weekend.
8. On the weekends Dopke had off, Linda Kavich was responsible for the care of the Dunbar residents. Kavich was employed as a weekend relief person. On the weekends Kavich worked, she reported to the Dunbar home at 3 p.m. on Friday and remained at the home until 11 p.m. on Sunday evening. Nottelson terminated Kavich's employment by letter dated January 22, 1999.
9. During the hours of 9 a.m. until 3 p.m. Monday through Friday, the complainant, Lisa Schultz, and Charlotte Gillihan took over responsibility for the Dunbar facility residents. They were employed as Day Program Aides. (1) When Schultz and Gillihan arrived at 9 a.m. the residents were not always up, dressed and fed so that they could be taken out into the community for their activities planned for the day. Schultz and Gillihan therefore completed these tasks. Once the residents were dressed and fed, Schultz and Gillihan took them out into the community. Sometimes Schultz and Gillihan went together with the residents, and sometimes they went separately, each taking a number of residents.
10. CLA had a policy they called following the chain of command. Under this policy, employees were instructed to contact their immediate supervisor before contacting Nottelson or any outside agency.
11. The Dunbar home was in an area covered by emergency 911 service.
12. The only knowledge Schultz had regarding the use of 911 in January 1999 was from her observations regarding what happened in previous emergencies and what Dopke told her. Consistent with CLA's chain of command policy, Dopke told Schultz to contact her before contacting Nottelson or calling 911 in emergency situations. Dopke had been told by Kortens not to call 911 without going through someone higher up in management.
13. One of the residents at the Dunbar home was an individual identified as "DK," or "Delbert." In December 1998, DK was 60 years of age, weighed about 115 pounds, had Down Syndrome and was in the severe range of mental retardation. DK was unable to communicate verbally. DK wore a diaper 24 hours a day, as he was incontinent. Prior to December 21, 1998, DK was ambulatory.
14. On December 21, 1998, DK was diagnosed as having two broken hips at Lakeland Hospital in Elkhorn, Wisconsin. DK remained hospitalized until January 7, 1999, when he returned to the Dunbar home.
15. At some point after DK's December 21, 1998 admittance to Lakeland Hospital, both the hospital and Dr. Knavel, the orthopedic surgeon who performed the surgery on DK's hips, filed complaints against the respondent in connection with DK's broken hips. As of January 1999, Nottelson was aware that the hospital had a filed a complaint with Walworth County Adult Protective Services. (This agency is an agency designated under Wis. Stat. 46.90 for receiving reports of abuse and neglect.) Walworth County is the county where DK was located when he sustained two broken hips. Nottelson was also aware that Dr. Knavel had filed a complaint, but not with whom. Additionally, Nottelson had filed a "self-report" with the state licensing inspector, Cindie Wilber. In her report, Nottelson stated that concerns had been expressed to her that the respondent had caused DK's broken hips, and that the respondent was conducting an internal investigation. Nottelson had also filed a "self-report" with the Milwaukee County Combined Community Services Board, a human service agency that has responsibility for investigating elder abuse, to report that DK had gone into the hospital with two broken hips and that CLA was conducting an internal investigation. Milwaukee County's involvement arose because DK was a resident of Milwaukee County. The Walworth County agency and the Milwaukee County agency each felt that they should conduct an investigation with respect to DK's injuries.
16. In January 1999, Nottelson expected that either the Walworth County agency or the Milwaukee County agency, and Cindie Wilber from licensing, would be conducting an investigation at CLA regarding DK's injuries. Nottelson understood that the potential ramifications were that DK could be removed from the home and that CLA could be fined for abuse if it were determined that the respondent had caused the injuries.
17. Shortly after December 21, 1998, Nottelson started discussions with Wilber regarding the possibility of DK returning to the Dunbar home in a non- ambulatory condition. Among the issues Nottelson and Wilber discussed were licensing issues, since the Dunbar home was licensed for ambulatory residents. (There is a difference in the amount of time allowed for ambulatory and non-ambulatory residents to get out of the home in case of fire.) While Nottelson thoroughly discussed DK's return with Wilber, neither Nottelson, nor any other CLA management did anything to prepare the Dunbar home staff for the possibility of DK returning to the home in a non- ambulatory condition.
18. Apparently, some time before January 7, 1999, Nottelson, Dopke, Burrows, Ann Zalec (DK's guardian), and Kathy Frey (DK's case manager), made a decision to return DK to the Dunbar home.
19. Burrows and Dopke were present at Lakeland Hospital on January 7, 1999, when DK was discharged from the hospital. According to Nottelson, Burrows and Dopke reported to her that DK was totally non-ambulatory when the respondent had been told that he was ambulatory, and that Burrows and Dopke further indicated DK had lost approximately 20 pounds and had very large, deep bedsores that he did not have prior to his hospitalization. When it was discovered that DK was totally non- ambulatory, however, this did not change the decision that had been made to return DK to the Dunbar home.
20. After DK's return on January 7, 1999, Schultz and Gillihan took turns staying behind with DK at the Dunbar home while the other person took the remaining residents out on the programmed activities for the day.
21. The staff at the Dunbar home had never cared for someone who was non- ambulatory. Because DK could not walk and would start yelling when Schultz tried to change his diaper, she did not know how to take care of him. Schultz asked Dopke how she should move DK and Dopke responded that she should "figure it out just like she had to." Schultz felt so bad for DK because it was making his bedsores worse. Schultz felt neglect was taking place because it was not fair for any human to sit there in one position for six hours a day not being changed or moved. Schultz called Nottelson a couple of times and told her that she did not know how to take care of DK, that a nurse or extra staff was needed to help take care of him and Nottelson's response was just to reassure her that the staff was doing a good job.
22. The respondent obtained a Hoyer lift to assist in the transferring of DK from his bed to the wheel chair and from the wheel chair to other places in the house. The evidence is conflicting as to whether the Hoyer lift arrived at the Dunbar home on January 8, 1999, or possibly not until around January 11, 1999. Exhibit KC-20 is a copy of a report Dopke prepared on January 8, 1999, regarding a call she made to Burrows to state that the staff was having difficulty transporting DK and that Burrows had indicated DK may need a lift. Per page 4 of this exhibit, faxes were still being sent on Monday, January 11 relative to ordering a Hoyer lift. According to Dopke, this meant that the Hoyer lift did not arrive until sometime after January 11 because you have to have an order form to get it.
23. When Schultz and Gillihan arrived for work one morning they noticed a device at the end of DK's bed and Dopke told them it was a Hoyer lift that had been ordered for DK. However, Dopke stated that the Hoyer wasn't any good because DK was scared of it so they shouldn't use it.
24. On January 14, 1999, Schultz made a call to the state ombudsman and left a message for the ombudsman to call her. A copy of this message, taken by a person at the state ombudsman's office, is shown as page "T" of Exhibit SC-17. The message taken by the ombudsman's office included the following statement: "Calling re non-care of res. at gp home she at."
25. On January 15, 1999, Burrows arranged a meeting with the Dunbar staff. However, Burrows made no arrangement for Kavich to attend, so only Schultz, Gillihan and Dopke were present. When Burrows got to the Dunbar home, she spent much of the time she had allocated for the meeting talking on the phone to other people and subsequently discussing religion with Dopke after her phone call. Schultz mentioned the problem of moving DK and his bedsores. Burrows stated that she would order a Duoderm for DK. Burrows did not explain how to use the Duoderm; she stated that the directions were on the box and that staff could call her if they had any questions. Burrows also told Dopke to train Schultz and Gillihan on the use of the Hoyer lift.
26. A Duoderm is an adhesive dressing that absorbs the drainage from a bedsore and bonds to the good tissue of the skin around the bedsore, sealing it from bathing water or incontinence and thus allowing the bedsore to heal. A special technique, requiring a gentle rolling and peeling, is required to remove the Duoderm, otherwise it can rip the skin off, damaging healthy tissue and causing bleeding. Standard protocol of change frequency is three to five days, but it may be changed sooner if the edges are starting to get crusted or there is no longer a seal.
27. The staff at the Dunbar home had never used a Duoderm before.
28. Staff at the Dunbar home also had never used a Hoyer lift before. Schultz described the Hoyer as being just like a swing at a park where the person just sits there and has to hold on to stay on it. Kavich described the procedure for using the Hoyer as follows: First you put the sling underneath DK's bottom while he's laying in bed, then you hook the chains on the sling to the Hoyer lift, then you get him from a prone position into being suspended on the Hoyer lift by pushing a bar that raised the sling.
29. Schultz found it impossible to use the Hoyer when alone because DK could not hold onto it and there were no straps to keep him in it, DK would just rock back and forth and just fall out of it. After Dopke's training on how to use the Hoyer, Schultz had further discussion about the usability of the Hoyer with Nottelson and explained why she could not use the Hoyer. Nottelson told Schultz that she wanted the Hoyer lift used and to ask Dopke for assistance even if she was not on duty. Schultz normally did not see Dopke during the day because Dopke was usually gone, as that was her only time to get out of the house.
30. When Schultz arrived for work on Monday, January 18, 1999, she found DK with his pajamas pulled down, urine all over the mattress, blood in his diaper from a bleeding bedsore and the Duoderm hanging by a little piece. Schultz was very upset when she saw DK in that condition. After attempts to reattach the Duoderm failed, either Schultz or Gillihan took the Duoderm off DK. The removal of the Duoderm did not cause any additional bleeding. Schultz decided to give DK a sponge bath. During this bath, DK appeared to stop breathing on a couple of occasions. Schultz had noticed this type of behavior in DK before, including once when he was in the hospital. A nurse instructed her to run her knuckles on his chest, which would alert him, wake him up and just start his breathing again. Schultz rubbed DK's chest each time as she had been shown at the hospital, and he resumed breathing.
31. While rubbing her knuckles across DK's chest worked, it concerned Schultz that this had happened more than once so she went out to the Dunbar home's garage and told Dopke, who was off-duty smoking a cigarette. Schultz told Dopke that DK's breathing was slow again, the he had blood in his diaper and that he just wasn't acting normal for DK. Schultz told Dopke she thought DK should be taken to the doctor right away and that 911 should be called. Dopke responded that they had to call the nurse (Burrows) or Nottelson first, and that they could not call 911 because Nottelson did not want DK to go back to Lakeland Hospital because there had been a complaint filed. A 911 call would automatically result in DK going to Lakeland Hospital because that was the closest hospital. Dopke also told Schultz not to call Nottelson, not to even bother her with this.
32. When Dopke told Schultz not to bother Nottelson with this, Schultz was really angry because she did not think anybody cared about DK. Schultz at this point told Dopke she had already called an ombudsman.
33. After her conversation with Dopke, Schultz went inside and called Nottelson. She told Nottelson about DK's breathing, the bedsores and the urine. Nottelson's response was for Schultz to call the ambulance service and have DK taken to Mercy Care. Schultz called the ambulance service but was told that it could not take DK to Mercy Care because if it was an emergency she needed to call 911 and DK would go to the closest hospital. Schultz then called Nottelson back and told her this and Nottelson responded that she "didn't want DK taken to Lakeland, but if they wouldn't take him to Mercy then we didn't have a choice, so call 911." Schultz related to Dopke, who had come in from the garage, that they had to call 911. Dopke told Schultz to go sit with DK, and Dopke then called 911.
34. Dopke also made a call to Nottelson and told her what was going on with DK, as described by Schultz. Dopke did not tell Nottelson about Schultz having called an ombudsman during this call. Nottelson asked Dopke to go along with Schultz to the hospital.
35. Schultz and Dopke followed the ambulance to Lakeland Hospital. When they arrived at the hospital, Dopke told Schultz to take DK's medical records and check him in. While Schultz was checking DK into the hospital, Dopke went to the phone in the emergency waiting room and called Nottelson and told her that Schultz had called an ombudsman.
36. When Schultz came back from checking DK in, Dopke told Schultz she had called and told Nottelson she (Schultz) had called an ombudsman, and that Nottelson wanted Schultz to have a meeting with Kortens right now.
37. On the drive back from the hospital Schultz and Dopke discussed the probability of Schultz getting fired. Dopke told Schultz that it was a choice between her (Dopke) getting fired for not telling Nottelson, and Schultz getting fired, and that she (Dopke) needed her job.
38. Nottelson had called Kortens, who was on maternity leave, and asked her to get the details of what had occurred during the incident with DK that morning and to find out the circumstances of Schultz having contacted an ombudsman.
39. Schultz met with Kortens on January 18, 1999, at the Kimberly house. Schultz was asked what had happened with DK that day and she told Kortens, who took notes, everything that happened. Schultz expressed that her concern in calling the ombudsman was due to her lack of training to take care of DK. Schultz told Kortens that she felt she was not trained to take care of Delbert, that he had some medical needs and they then discussed that. Schultz also told Kortens that her concern was that DK not come back to the Dunbar home until training had actually occurred and Schultz told Kortens that she had made similar complaints in phone calls to both Nottelson and Burrows.
40. During the meeting after Schultz had gone over the details of the incident with DK and described how he had stopped breathing for so long, when Kortens pressed for more information as to what had happened with DK's breathing, Schultz responded that DK has apnea which is a breathing disorder when they just stop breathing but start again. DK's medical records showed that he had syncope and bradycardia, but not apnea. At the time, however, Schultz understood the terms apnea and syncope to both mean when you stop breathing for a couple seconds and then start again. (2)
41. Schultz never told Kortens there had been blood all over during the incident with DK on the morning of January 18, 1999. Schultz never told Kortens that she shook DK to start him breathing again.
42. On January 18, 1999, Dopke completed an Injury, Incident or Accident Report Form concerning the incident involving DK that morning. Dopke included the following statement under the section headed "Description of injury, incident, or accident":
43. "On 1/18/99 Lisa Schultz.and Char Gillihan.came in at 9 Am to begin their day. Upon talking to me, Kristen Dopke.they went to bath (sic) Delbert..Once they began bathing him they noticed his breathing pattern had slowed down quit (sic) a bit. They then finished his personal cares. His breathing was still very slow. Lisa Schultz then contacted Sonja Nottleson (sic).to make her aware of the situation. Lisa then notified me. I then attempted to call Lisa Burrows, CLA's nurse. She was unavailable to take the call. I then contacted Sonja Nottleson (sic). She indicated that the paramedics should be called. After my conversation with her I called 911. I explained the situation to the dispatcher..When I went into the living room (which is where Delbert was resting) I also began to notice Delbert's breathing pattern. On several occasions I kept having to shake Delbert to keep him breathing at a normal pace.."
44. Near the end of this report, Dopke wrote:
"Sonja Nottleson (sic), CLA's executive director, Lisa Burrows, CLA's nurse, Lisa Kortens, CLA's Day Program Coordinator, Anne Zalec, Delbert's guardian, and Kathy Frey, Delbert's case worker, were all made aware of the situation and its outcome."
45. On Tuesday, January 19, 1999, Burrows held a meeting with Dopke, Schultz, Gillihan and Kavich in attendance. Burrows met privately for 10- 15 minutes with Dopke prior to the meeting. When Burrows came to the meeting she started yelling at everyone for "gossiping and hurting each other's feelings." Burrows also yelled at them for having told on her for being on the phone during the January 15, 1999 meeting. Burrows "started in on" Schultz about putting the Duoderm on DK incorrectly. Kavich told Burrows that she (Kavich) had put the Duoderm on DK, not Schultz, but Burrows would not listen.
46. After the exchange about the Duoderm, Schultz informed Burrows that DK had been given a prescription for a narcotic but he was not supposed to be on a narcotic because of his bradycardia. Burrows agreed with Schultz and said Tylenol or something non-narcotic would be ordered for his pain. During the meeting Burrows also showed how to do a "two-man" lift, which had not been shown to them before, and stated that this procedure was to be used when moving DK from the chair to the wheelchair or the wheelchair to the floor.
47. On January 20, 1999, when Schultz returned to the Dunbar home near the end of her shift, she learned that there was a message for her on the answering machine. The message stated that John Ross had dropped something off for her at the Kimberly home. Ross was the respondent's business manager, and the husband of Sonja Nottelson. When Schultz got to the Kimberly house she was handed a letter signed by Nottelson, dated January 19, 1999, informing her that her employment had been terminated and listing the reasons therefor.
48. Nottelson's termination letter lists several reasons for the complainant's discharge. The termination letter reads as follows:
"1. Using obscene language. You have been observed swearing in front of the residents of the Dunbar CBRF.
2. Failure to follow specific job instructions, and insubordination by refusing a Supervisors directions. Lisa Burrows, RN talked with you at the Dunbar home on January 15 and again on January 19. You ignored direction regarding proper use of the duoderm, stating that you felt resident DK did not belong in the home until he was able to walk (and that you felt he would never walk again). You also argued with the nurse about giving DK pain medications prescribed for him by his physician. You stated that you did not want him to have pain medication because he needed to understand what it is like to build a pain tolerance, and that you are personally opposed to the use of pain medications.
3. Failure to observe established health practices. You indicated that on Monday January 18 it took you approximately 20 minutes to give DK a bed bath. You further indicated that during his bath you observed him to stop breathing numerous times. You stated that when he `stopped breathing' you shook him, and when he revived you continued with his bath. If you observe ANY resident to stop breathing, you know that you are to call 911 immediately.
4. Unwillingness to work harmoniously with other employees. You have been heard making hurtful comments about coworkers, and have demonstrated an argumentative and insubordinate attitude toward supervisory staff. Our residents have been present and in a position to overhear your negative comments and arguments. I can assure you that this only serves to confuse our residents and undermine the sense of security and well-being we hope to give each person in our homes.
My primary concern is for the safety and well-being of each individual in our homes. Your above-mentioned actions have jeopardized said safety and well-being, and will not be tolerated."
49. Nottelson's reasons for terminating Schultz's employment were false and a pretext for terminating Schultz solely because she had contacted an ombudsman over concerns of abuse and neglect of resident DK.
50. On January 19, 1999, Schultz called the ombudsman's office a second time to speak to an ombudsman and left a message asking for an ombudsman to call her. Schultz was able to speak to an ombudsman in subsequent calls on January 20 and January 21, 1999. An ombudsman took detailed notes of their January 21 conversation. Nottelson had already made the decision to terminate Schultz's employment at the time of her second contact with the ombudsman's office.
Based upon the above FINDINGS OF FACT, the commission makes the following:
1. The respondent, Community Living Arrangements (CLA), is an employer within the meaning of the Wisconsin Fair Employment Act, Wis. Stat. § 111.32(6)(a), and Wis. Stat. § § 46.90(4)(b)2.b and 50.07(3)(b).
2. Sonja Nottelson, CLA's executive director and president of its board of directors, is a person within the meaning of Wis. Stat. § § 46.90(4)(b)1.a. and 50.07(1).
3. Community Living Arrangements operates the Dunbar home, a community- based residential facility within the meaning of Wis. Stat. § 50.01(1)(1g).
4. "DK" was a resident of the Dunbar home within the meaning of Wis. Stat. § 50.01(6). Also, in 1999, DK was an "Elder Person" within the meaning of Wis. Stat. § 46.90(1)(c)
5. The complainant, Lisa Schultz, was an employee of Community Living Arrangements who contacted a state official within the meaning of Wis. Stat. § 50.07(1)(e).
6. Sonja Nottelson intentionally retaliated or discriminated against Lisa Schultz by discharging her for contacting a state official in violation of Wis. Stat. § 50.07(1)(e).
7. Lisa Schultz failed to establish that Sonja Nottelson discharged or otherwise retaliated against her in violation of Wis. Stat. § 46.90(4).
Based upon the above FINDINGS OF FACT and CONCLUSIONS OF LAW, the commission issues the following:
1. The complaint in this matter, insofar as it alleges that Community Living Arrangements violated Wis. Stat. § 46.90(4) by discharging her for an activity protected under this provision, is dismissed.
2. Community Living Arrangements shall cease and desist from discriminating against Lisa Schultz because she contacted an ombudsman as described herein above.
3. Community Living Arrangements shall immediately make a written offer of reinstatement to Lisa Schultz, which offers her the position of a Day Program Aide, or to an equivalent position in the event of the absence of the availability of a Day Program Aide position. The offer of reinstatement shall entitle Lisa Schultz to the wages and benefits that she would have received as if she had continued in employment after her last day of employment with CLA to the date of her reinstatement. The offer by CLA shall give Schultz reasonable notice of the time and place to report to work. Community Living Arrangements shall reinstate Schultz unless, after the commission's decision in this matter becomes final, Schultz notifies both CLA and the commission that she does not wish to be reinstated or unless Schultz fails to reasonably report for work at a time and place CLA has reasonably designated in its offer of reinstatement. If Schultz does not wish to be reinstated, she shall notify CLA and the commission within 10 days of the offer of reinstatement.
4. Community Living Arrangements shall make Lisa Schultz whole for all lost wages and benefits that she incurred as a result of its unlawful retaliation or discrimination against her. Community Living Arrangements shall make Schultz whole by paying her as back pay the amount she would have earned from January 20, 1999, through the date on which she is reinstated as the result of this order. Amounts received by Schultz after January 20, 1999, during the period of the make-whole award shall be offset from the back pay amount. Any amounts received by Schultz as unemployment insurance or welfare payments shall not reduce the back pay amount otherwise allowable, but shall be withheld from Schultz and immediately paid by CLA to the Unemployment Reserve Fund or, in the case of a welfare payment, to the welfare agency making the payment. (Reimbursement for unemployment insurance shall be in the form of a check made payable to the Department of Workforce Development, and should note Schultz's social security number and the case number of this case.) Community Living Arrangements shall also pay to Schultz interest on the above back pay award, after applicable offsets, at the annual rate of 12% simple interest, computed by calendar quarter.
5. Community Living Arrangements shall reimburse Lisa Schultz for her reasonable attorney's fees and costs incurred in pursuing this complaint before the department and the commission. CLA shall issue a check for the amount of reasonable attorney's fees and costs payable jointly to Lisa Schultz and her attorney, Richard R. Grant, and delivered to the office of Consigny, Andrews, Hemming & Grant, S.C. (3)
6. Within 30 days of the expiration of time within which an appeal may be taken herein, Community Living Arrangements shall submit a compliance report which provides details of the specific action it has taken to comply with the commission's decision. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708. Wis. Stat. § § 111.395, 103.005(11) and (12) provide that every day during which an employer fails to observe and comply with any order of the commission shall constitute a separate and distinct violation of the order and that, for each such violation, the employer shall forfeit not less than $10 nor more than $100 for each offense.
Dated and mailed August 28, 2003
schulli1 . rpr : 125 : 9
/s/ David B. Falstad, Chairman
/s/ James T. Flynn, Commissioner
/s/ Robert Glaser, Commissioner
Two statutes, Wis. Stat. § 46.90 and § 50.07, were considered for purposes of determining whether Schultz's employment had been terminated in violation of the law.
Section 46.90(4) provides as follows:
"(4) REPORTING. (a) 1. Any person may report to the county agency or to any state official, including any representative of the office of the long-term care ombudsman under s. 16.009(4), that he or she believes that abuse, (4) material abuse or neglect (5) has occurred if the person is aware of facts or circumstances that would lead a reasonable person to believe or suspect that abuse, material abuse or neglect has occurred. The person shall indicate the facts and circumstances of the situation as part of the report.
. . .
(b) 1. a. No person may discharge or otherwise retaliate or discriminate against any person for reporting in good faith under this subsection.
. . .
2. a. . . .
3. b. Any employee of an employer not described in subd. 2. a. [pertains to employees of a state agency] who is discharged or otherwise discriminated against may file a complaint with the department of workforce development under s. 106.06(5).
Under Wis. Stat. 50.07(1), no person may:
"(e) Intentionally retaliate or discriminate against any resident or employee for contacting or providing information to any state official, including any representative of the office of the long-term care ombudsman under s. 16.009(4). . .
. . .
(3)(a). . .
(b) Any employee of an employer not described in par. (a) [pertains to employees of a state agency] who is discharged or otherwise retaliated or discriminated against in violation of sub. (1)(e).may file a complaint with the department of workforce development under s. 106.06(5).
The ALJ concluded Schultz failed to establish that there had been a violation of § 46.90. He concluded there was a failure to establish a violation of this statute because Schultz's message left for the state ombudsman did not state that she believed abuse or neglect had occurred, and it did not indicate the facts and circumstances of the situation as part of the message.
The ALJ found that the respondent violated § 50.07, because it discharged Schultz in part for contacting (i.e., calling and leaving a message for but not speaking to) an ombudsman. However, the ALJ found that the respondent also discharged Schultz for nondiscriminatory reasons, and would have discharged Schultz even absent the fact that she had called an ombudsman. Consequently, the ALJ ordered the respondent to cease and desist from discriminating against Schultz because she contacted an ombudsman and awarded stipulated attorney's fees and costs of $35,000.00, but did not order the respondent to reinstate her and pay her back pay.
In the memorandum opinion portion of his decision the ALJ had this to say about Nottelson's decision to discharge Schultz and Nottelson's credibility:
Ms. Nottelson was not found to be credible enough to conclude that she did not violate the law by discharging Ms. Schultz in part because of her having contacted the Ombudsman. First, her demeanor made her testimony unconvincing. Among other things, Ms. Nottelson smiled throughout her lengthy testimony, and her expressions and what she was saying were very incongruous. Second, she repeatedly was shown to embellish the facts to make her story better, or to simply not bother to get the facts right. The following are two examples of this behavior.
First, Ms. Nottelson and Ms. Burrows both testified that DK had large bedsores when he came back to Dunbar on January 7, 1999. Fixing the blame for his development of bedsores on Lakeland Hospital would be helpful for the pending investigation of DK's hip injury. However, the discharge notes make no reference to his having bed sores, and CLA daily logbook entries make no reference to his having bed sores until January 14, 1999, when there is a (sic) entry that states, `bottom is red and sore.' To the contrary, the discharge notes from the hospital state: `He did get some areas of breakdown on the sacrum. He was placed in a Clinitron bed and these healed.' Moreover, neither Ms. Burrows nor Ms. Nottelson took any action regarding the bedsores they claimed to know DK had until Ms. Burrows examined him on January 15, 1999. The conclusion that Ms. Burrows and Ms. Nottelson were not telling the truth accepts as true the documentation of both Lakeland Hospital and CLA, and assumes that CLA could not have ignored large bedsores for a week.
Second, Ms. Nottelson wrote to Vincent Carter regarding Ms. Kavich's claim for unemployment insurance on February 11, 1999. In this letter Ms. Nottelson, among other things, states:
You will note that at the meeting on January 15, 1999 she was very insubordinate and argumentative with her supervisor regarding the care of the residents. She received a verbal warning at that time . . . . When Lisa Burrows, an RN employed by our agency, met with Ms. Kavich and other staff on January 15, she instructed them the (sic) DK must NEVER be lifted or moved without use of the Hoyer lift . . . . Despite these instructions, Ms. Kavich moved him without the use of the Hoyer, disregarding the safety and well being of DK.
This explanation sounds very good, except Ms. Kavich was not at the meeting on January 15, 1999, and Ms. Kavich never worked after attending the only meeting she had with Ms. Burrows.
ALJ Mem. Op., pp. 14-15.
Although the ALJ determined that Nottelson "was not found to be credible enough to conclude that she did not violate the law by discharging Ms. Schultz in part because of her having contacted the Ombudsman", he found her "convincing in testifying that she found Ms. Schultz's behavior on the morning of January 18, 1999 unacceptable." Mem. Op., p.15.
At the time Schultz filed her complaint in this matter, Wis. Stat. § § 46.90(4)(b)2.b. and 50.07(3)(b), provided that any employee not employed by a state agency who is discharged or otherwise retaliated or discriminated against in violation of those statutes "may file a complaint with the department of workforce development under s. 106.06(5)." Section 106.06(5), in turn, provided that the Equal Rights Division shall receive complaints of discrimination under 50.07(3)(b) and 46.90(4)(b) and be processed in the same manner as employment discrimination complaints processed under s. 111.39. [Section 106.06(5) was subsequently renumbered as 106.54(5).]
In complaints of retaliation arising under s. 111.39, a prima facie case of retaliation may be established by a showing that: (1) the complainant engaged in statutorily protected expression; (2) the complainant suffered an adverse employment action; and (3) there is a causal link between the protected expression and the adverse action. If the complainant establishes a prima facie case of retaliation, the employer may rebut the prima facie case by articulating a legitimate, nondiscriminatory reason for the adverse action. Should the employer meet its burden, the complainant then must prove that the employer's proffered reason is merely a pretext for retaliatory conduct. See, for example, Sarazin v. W & G Transport (LIRC, 03/09/99); Weir v. Heiden, Inc. (LIRC, 02/05/98); Roden v. Federal Express (LIRC, 06/30/93.
The evidence supports a showing that Schultz has established a prima facie case of retaliation under Wis. Stat. § 50.07(1)(e). On January 14, 1999, Schultz engaged in protected activity by contacting a state ombudsman and leaving a message that she was calling regarding the non-care of a resident at her group home. Although Nottelson claims no recollection, both Dopke and Kortens testified that on January 18, 1999, they had discussion with Nottelson regarding Schultz having called an ombudsman, and Kortens testified that Nottelson asked her to find out the circumstances of Schultz having contacted the ombudsman. On January 18, 1999, Nottelson terminated Schultz's employment. A causal connection between Schultz's protected activity and her discharge can be inferred because of the close proximity in time between Schultz's protected activity and her discharge. Notaro v. Kotecki & Radtke S.C. (LIRC, 07/14/93); Horton v. Hopkins Chemical Co. (LIRC, 06/08/92), aff'd., Dane Co. Cir. Ct., 04/28/93; Frierson v. Ashea Indus. Systems (LIRC, 04/06/90). Nottelson's decision to terminate Schultz's employment was made within only a matter of hours after learning that Schultz had contacted an ombudsman. Moreover, the fact that Nottelson claims an inability to recall being told that Schultz had contacted an ombudsman, while not one, but two subordinate management personnel specifically recall discussing the matter with Nottelson, also suggests there is a causal connection between Schultz's contacting an ombudsman and her discharge.
The respondent's first contention is that the record does not support the ALJ's finding that Schultz's call to the ombudsman was a factor in Nottelson's decision to discharge Schultz. In support of this position the respondent argues that several findings made by the ALJ are not supported by the record, or are supported only by Schultz's subjective opinion, which may have influenced the ALJ's decision that Schultz's contact with the ombudsman was a factor in the termination decision.
As an example of an alleged unsupported finding, the respondent cites the ALJ's finding number 13, wherein the ALJ states that the only knowledge Schultz had regarding the use of 911 in January 1999 was from her observations regarding what happened in previous emergencies and what Dopke told her. The respondent argues that this finding is directly contradicted by Schultz's admission that she had classes in first aid and fire safety training while working at CLA, which lends credence to Nottelson's belief that Schultz had training in fire safety and first aid, and therefore should have known to immediately call 911 if someone stops breathing. The respondent argues that Nottelson understandably was appalled that Schultz said she shook DK each time he stopped breathing, then continued with his bath when he started breathing again, and later went to talk to Dopke before calling 911. The respondent argues that in Nottelson's mind, Schultz's conduct gravely endangered DK's safety.
While Schultz may have had first aid and fire safety training, this does not render as unsupported the ALJ's finding that by January 1999, Schultz's experience and knowledge with respect to calling 911 in emergency situations was that staff could not call 911 without first obtaining permission from upper management. Dopke, Schultz's immediate supervisor, coworker Gillihan and Schultz all testified that staff could not call 911 first without obtaining permission from upper management.
For example, Schultz testified that in all of her experiences with respondent and any emergency she had been in, they always said to call Nottelson first before you did anything. T. III, 73. (6) With regard to her experiences, the following questions and answers occurred between the respondent's counsel and Schultz:
Q Sure. When had you previously called 911?
A There was a time and it was with Delbert too that he had, we found out later he had pneumonia, but whatever symptoms he was showing that night, he had a high fever and everything, we had called 911 and Sonja had told us or Lisa Kortens, I don't remember which one it was, that we shouldn't call 911 for everything. We should, you know, call Sonja, talk to the house manager.
Q And when was this?
A I don't remember exactly when it was.
Q Few months before, year and a half --
A I don't remember when it was. It was sometime during the period I worked there. That's all I remember and there were several incidents. There's so many times where we thought 911 should be called and we were told we couldn't.
Q And Sonja Nottelson told you this directly?
T. IX, 47-48.
Also, Schultz testified that when she went to the garage and told Dopke there was something wrong with DK, his breathing was not normal, we should call 911, Dopke's reply was, "well we have to call the nurse or Sonja first." T. VII, 113. Schultz's seeking out Dopke's advice before calling 911 and Dopke's reply that they needed to call Burrows or Nottelson first, indicates the responses of individuals who had been instructed to get upper management approval before calling 911. Dopke testified she believed that it was Kortens who had told her that they were not supposed to call 911 without going through someone higher up. T. VII, 113-114. Dopke testified that Kortens told her never to call 911 without talking to Sonja first, that we were supposed to try to get a hold of administration before calling 911. Dopke Deposition, pp. 82-83. Dopke testified that Kortens told her this when DK had slipped in the bathtub and gotten a little scratch on the top of his head right before Christmas of '97. Id. at 83.
Also, Gillihan testified that in the December 1998/January 1999 time frame, Dopke had instructed her to call management before calling 911. T. VI, 221 Gillihan testified that Dopke told her that the reason was that "Sonja said we were calling 911 too much and we had to ask permission." Id. at 222.
Despite the denials by Nottelson, Kortens and Burrows, the testimony by Schultz, Gillihan and Dopke, strongly suggests that the staff had been advised not to call 911 without first calling upper management. This seems particularly true in view of Dopke's response to Schultz (that they had to call the nurse or Nottelson first) when Schultz told her of DK's difficulties on January 18, 1999, and said 911 should be called.
Furthermore, there is no basis for crediting the assertion that Nottelson was appalled because "Schultz said she shook DK each time he stopped breathing." Nottelson, whose credibility the ALJ questions, was the only witness who claimed that Schultz had shaken DK to get him to start breathing. Schultz denied that she told Nottelson she shook DK to start him breathing again. T. IX, 51. Kortens, who testified that on January 18, 1999, she asked Schultz to describe very specifically what had occurred that morning and that she remembered most of what Schultz had told her, never testified that Schultz had told her that she shook DK to get him to start breathing again.
The absence of testimony from Kortens that Schultz had shaken DK to get him breathing is significant. It is significant because Nottelson testified that she had asked Kortens to meet with Schultz to investigate the January 18, 1999 incident because she "wanted someone other than me to hear Lisa (Schultz) say he had stopped breathing and I shook him because I knew if I was the only person saying it, nobody would believe that anybody would just shake someone when they stop breathing." T. XI, 46-47. Based on the evidence presented, Nottelson was the only someone saying that Schultz shook DK when he "stopped breathing."
As a matter of fact, the only evidence of anyone having shaken DK in the record is Dopke, as she admitted to shaking DK in her January 18, 1999 report of the incident with DK. In her report Dopke writes, "On several occasions I kept having to shake Delbert to keep him breathing at a normal pace." Exhibit SC-6. (Emphasis added.) Nottelson claims not to have read this report prior to Schultz's termination. However, Dopke's report suggests that Nottelson was made aware of what was in the report because near the end this report Dopke states, "Sonja Nottleson (sic), CLA's excutive (sic) director, Lisa Burrows, CLA's Nurse, Lisa Kortens, CLA's Day Program Coordinator . were all made aware of the situation, and its outcome." Moreover, there is a strong likelihood that Nottelson had been made aware of what was contained in this report by Dopke as there were numerous reports prepared by Dopke/others, stating that Nottelson had been made aware of the contents of these reports.
The respondent also argues that the record does not support the ALJ's finding number 14, wherein he finds that prior to January 1999 DK had a history of stopping breathing for short periods of time. The respondent argues that Nottelson was familiar with DK's medical history and was well aware that he did not have a history of stopping breathing. The respondent argues that "[c]onsequently, Ms. Schultz's hysterical cries that DK stopped breathing several times that morning led Ms. Nottelson to believe that DK's condition had deteriorated to the point that any reasonable person would have immediately called 911 - not shaken the person and then discussed the situation with others before calling 911." Further, the respondent argues that there is no dispute that DK had a prior history of bradycardia, which Nottelson understood to mean a slow pulse, and of syncope, which she understood to mean fainting, when he was at Southern Wisconsin Center prior to his arrival at the Dunbar home; however, there is simply no record of apnea, which she understood to mean a brief cessation of breathing. The respondent argues that Nottelson certainly knew the difference between syncope and apnea, and that had DK had a history of apnea, it is far less likely that she would have been as upset about Schultz's response to the condition. The respondent argues that when Schultz said that DK "stopped breathing," she understood that to mean DK was in serious danger of dying.
First of all, the ALJ was obviously persuaded by Schultz's hearing testimony that DK had a history of "stopping breathing for short periods of time." (7) Schultz testified that she had noticed DK have periods of slowed breathing several times before. T. II, 200; T. IX, 40. Schultz testified that the slow/delayed breathing by DK happened one time in the hospital (T. IX, 40, 56), that it was on that occasion that a nurse in the emergency room had told her to get DK's attention by rubbing his chest. Id. at 57. Schultz testified that on January 18, 1999, DK was doing this slow breathing thing where it looks like he stopped breathing. T. IX, 40. Schultz testified that when it happened on January 18, she did what the nurse told her to do, which was to rub her knuckles on his chest and it alert's him, wakes him up and he just starts breathing again. T. II, 205; T. IX, 40. Schultz testified that she had the terms apnea and syncope confused at the time. Ombudsman Vicki Sali's January 21, 1999 notes of her conversation with Schultz also indicate Schultz had told her that DK had apnea.
Second, the credible evidence does not support Nottelson's contention that there were "hysterical cries that DK had stopped breathing" by Schultz in her call to Nottelson on January 18, 1999.
Nottelson claims that on January 18, 1999, a call came in on her answering machine and she heard a hysterical female voice she recognized as Schultz's saying, "Sonja, if you're there, pick up the phone. It's Delbert, there's blood all over the place. He stopped breathing. Oh God, I think he's dying." Id. at 41. Nottelson testified that she picked up the phone and asked Schultz what was going on. Nottelson testified that Schultz again said "there's blood all over the place. I think he's dying." T. XI, 41-42.
Schultz's testimony contradicted Nottelson's claim that she was hysterical and about what was said during that phone conversation. Schultz testified that she never said that DK was dying. T. XI, 229. Schultz denied that she said anything like "Oh God, Sonja pick up the phone, I think Delbert is dying." T. IX, 49. Schultz denied ever making a statement to Nottelson, or to anyone else, that there was blood all over in her assessment of DK's situation on January 18, 1999. Schultz testified that DK simply had "blood leaking from his bedsores. It was oozing with puss." T. XI, 229. Schultz testified that she told Nottelson that DK was in slowed breathing, he was in urine, that his bedsores were really bad and that he was not in good shape. T. IX, 50.
In finding of fact 46 the ALJ stated:
"On January 18, 1999, Ms. Schultz found DK laying with his pajamas pulled down, with urine on his mattress, blood in his diaper from a bleeding bed sore and the Duoderm hanging by a little piece. After attempts to reattach the Duoderm failed, either Ms. Schultz or Ms. Gillihan took the Duoderm off. The removal of the Duoderm did not cause additional bleeding."
If blood was just in DK's diaper and the removal of his Duoderm did not cause any additional bleeding, why would Schultz tell Nottelson there was blood all over the place?
Further, if there had not been blood all over the place, and Schultz's denial that she stated "Oh God, I think [DK's] dying" is accepted, what reason would there have been for Schultz to be "hysterical?"
Dopke's testimony does not indicate that Schultz was "hysterical" when Schultz appeared in the garage to speak to her. Dopke testified that when Schultz came to her in the garage that Schultz looked upset and that Schultz's tone of voice made her think that she was upset, but she was not yelling, she was just upset, like worried, concerned upset. Dopke Deposition, pp. 79-80. Why would Schultz suddenly become hysterical when she called Nottelson? Further, Dopke's January 18, 1999 "Injury, Incident or Accident" report also fails to bear any indication that Schultz was hysterical. Dopke's report indicates that Schultz and Gillihan went on to finish DK's personal cares after noticing that his breathing pattern had slowed down quite a bit. An individual who continues on to finish the personal cares of someone who had supposedly "stopped breathing" does not bring to mind a person that had become hysterical in an emergency situation.
Next, the respondent addresses the ALJ's finding of fact no. 56. In that finding the ALJ states that Nottelson's reasons for discharging Schultz were because Nottelson considered Schultz to be acting hysterically and unprofessionally, Schultz was questioning management decisions and because Schultz had called the ombudsman, but that Nottelson would have discharged Schultz under these circumstances even had she not called the Ombudsman. The respondent argues that this finding is the crux of the case, yet the ALJ identified no evidence to support it. The respondent cites Nottelson's testimony at T. XI, 49-51 as evidence of Nottelson's reasons for Schultz's termination. There, Nottelson testified that Schultz had acted extremely inappropriate in an emergency situation and she could just not take the chance that that sort of situation would happen again where someone would stop breathing and Schultz would shake them in an attempt to revive them. Nottelson testified that an additional factor in her decision to terminate Schultz's employment, was that she had a history of impulsive, hysterical behavior working with the respondent's agency, and in fact had walked off the job once before and had called the county sheriff's department once before to request that a resident be removed from one of the homes. Nottelson testified that Vivian Wall, the house manager during the first time Schultz worked at the Dunbar home, told her the sheriff's department had been contacted and that Nottelson asked "Lisa" (the record is not clear which Lisa this refers to) and she indicated she had called the sheriff's department.
Nottelson's claims boil down to an issue of credibilty.
Nottelson's argument that Schultz had acted inappropriately in an emergency situation rests on Nottelson and her two top management personnel's assertion that staff could call 911 without first obtaining permission from higher management. However, first level supervisor Dopke, and the employees under Dopke's supervision all testified that this was not so, that they had been instructed to obtain permission before calling 911. Indeed, as previously noted above, on the morning of the January 18, 1999, incident with DK occurred, when Schultz told Dopke that 911 should be called, Dopke's response was "well we have to call the nurse or Sonja first." T. VII, 113-114. Surely Dopke, a supervisor, knew what the respondent's policy was with respect to calling 911 in emergency situations.
Furthermore, Nottelson's credibility suffers greatly because the other reasons Nottelson listed in Schultz's termination letter as the basis for Schultz's termination, as well as Nottelson's testimony on those matters, were unworthy of credence.
Nottelson asserted in her letter of termination that Schultz was discharged for the following reasons: (1) Using obscene language; (2) failure to follow specific instructions and insubordination; (3) failure to observe established health practices; and (4) unwillingness to work harmoniously with other employees.
With respect to the first listed reason -- using obscene language -- Nottelson testified that Dopke told her that she heard Schultz swearing when residents were present. Nottelson testified that she did not recall the exact date she got this information, but she believed it to have been while she was preparing the termination letter. T. XI, 54-55. This testimony is interesting because Nottelson testified that she made the decision to discharge Schultz the day before she prepared the termination letter. In any event, the using obscene language is called into question for several reasons. For example, while Dopke did testify that Schultz said "bad words" around her, Dopke testified that she did not remember if Schultz used them around the residents. T. VII, 135. More important though, not only did Dopke testify that she did not remember if she told Nottelson that Schultz had sworn in front of residents, she testified that "I am not one to criticize because I swear all the time." Id.; Dopke Deposition, p. 86. It is not likely that Dopke would have told Nottelson that Schultz was swearing in front of the residents in view of Dopke's testimony that she swore all the time. Additionally, Charlotte Gillihan, the other Day Program Aide at the Dunbar facility, testified that she was not aware of Schultz using obscene language at any time Schultz had worked with her and that she had never observed Schultz swearing in front of the residents. T. VI, 189. Schultz denied ever using obscene language in front of a resident. T. III, 63.
The second listed reasons for Schultz's discharge -- that Schultz failed to follow specific instructions and was insubordinate by refusing to follow a supervisor's directions -- also fail to withstand scrutiny. At the hearing Nottelson testified that her basis for including the failure to follow specific job instructions as a reason for discharge was that on January 18, 1999, Schultz had "ripped off the duoderm when it was coming loose which resulted in injury to healthy tissue and the profuse bleeding." T. XI, 55. (8) However, other than Nottelson, there was no testimony by anyone that Schultz had ripped off the Duoderm, causing injury to DK's healthy tissue and profuse bleeding. Nottelson was not present at the Dunbar home to witness the incident. Nottelson never explains the basis for her statement about the Duoderm allegedly being ripped off. Schultz denied that she ripped off DK's Duoderm, causing injury to his healthy tissue and profuse bleeding. Nottelson's claim that Schultz had ripped off the Duoderm causing injury to healthy tissue and profuse bleeding is likely based on her assertion that Schultz had stated "there is blood all over the place" when Schultz called her on the morning of January 18, 1999. However, Schultz denied ever stating that there was blood all over the place.
Furthermore, an examination of the testimony given by several other witnesses indicates that Nottelson's testimony regarding this matter is unworthy of credence. For example, Gillihan testified that she had never observed Schultz fail to follow instructions given regarding the use of the Duoderm. T. VI, 191. Also, Kortens, whom Nottelson had asked to meet with Schultz to get the details of the January 18, 1999 incident with DK, provided absolutely no testimony about Schultz having made a comment suggesting that DK's Duoderm had been ripped off and causing injury to healthy tissue and profuse bleeding. Kortens failed to provide such testimony despite testifying that she had asked Schultz to "describe very specifically" what had occurred that morning.
Schultz testified that DK's Duoderm "was hanging by a little piece. It was still stuck." T. IX, 39. She denied that when it was removed that DK started bleeding from the Duoderm being taken off. Id. Schultz testified that DK was bleeding because his bedsore was bleeding. Id. After eliciting this testimony the respondent's counsel then chose to read Schultz's deposition testimony of March 3, 2000, about DK's Duoderm. Respondent's counsel read the following testimony by Schultz: "When we [Schultz and Gillihan] took the diaper off, the Duoderm pulled away from him so it was (sic) half of it was like on him and half of it was stuck to his diaper, you know what I mean. So when you took it off, it was just kind of hanging there, the Duoderm. So we peeled the rest off and then put on a new patch." T. IX, 43-44.
The complainant's counsel then read into the record the following questions asked of Schultz and the answers she gave at her March deposition:
"Question: Okay. And when you peeled the Duoderm off, did that cause additional bleeding?
Answer: I don't remember any additional bleeding. It was -- It was okay where the Duoderm was attached. It's not on a sore. It's on the skin around the sore. So when you take it off of him, it wouldn't cause additional bleeding unless it was on the sore or unless it was attached. It would rip the skin off, but no, I don't recall extra bleeding from that.
Question: And was the blood in the diaper from the bedsores or something else?
Answer: From the bedsore.
. . .
So you're giving him a bath, you took the Duoderm off, were the bedsores bleeding at that?
Answer: They were like oozing, like there was puss and blood mixed. It was kind of like when you scrape yourself. You know, it's not like blood just dripping out. It's just --
Answer: Yeah, raw."
T. IX, 44-45.
Furthermore, testimony by Kavich supports Schultz's testimony that Schultz had done nothing on January 18, 1999, to cause injury to DK's healthy tissue or profuse bleeding. Kavich testified that the Duoderm came off towards the end of the day on Sunday (January 17, when she, Kavich was working), that she was not sure if all of it came off or only a portion, that she did not reapply the Duoderm, and that the Duoderm was not sticking well to DK's bottom. T. VIII, 132-134. See also, id. at 139-140. In addition, Kavich testified that during the subsequent meeting Lisa Burrows held with the staff on January 19, 1999, Burrows' discussion was not about how DK's Duoderm had been removed, it was about how the Duoderm had been initially applied, and that she (Kavich) was the one that had initially applied the Duoderm but Burrows kept saying that Schultz had put it on. Id. at 139. Nottelson therefore had not likely obtained any information from Burrows indicating or suggesting that Schultz had "ripped off" DK's Duoderm.
Nottelson testified that a further reason for stating that Schultz failed to follow specific instructions and was insubordinate by refusing to follow a supervisor's directions was that Schultz had told Lisa Burrows at the January 19th meeting that she was opposed to the use of pain medication and felt that DK needed to live with pain. The evidence fails to lend any truth to this reason given by Nottelson for Schultz's discharge. First, it must be noted that Nottelson's testimony regarding this reason for Schultz's discharge is inconsistent. Initially, Nottelson testified that she did not hear anything from Lisa Burrows, Dopke or Gillihan after the January 19, 1999 meeting pertaining to Schultz. T. XI, 53. But then, what could only have been minutes later, and without identifying who had told her, Nottelson testified that after the January 19, 1999 meeting she received information about Schultz having told Burrows that she was opposed to the use of pain medication and felt that DK needed to live with pain. T. XI, 55. However, Burrows, who had conducted the January 19 meeting, never testified that Schultz had stated that she was opposed to the use of pain medication and that she felt DK needed to live with pain. Schultz denied stating that DK needed to live with pain and that she was opposed to the use of pain medication. T. III, 67-68. (Schultz also denied ever stating that she felt DK would never be able to walk again as stated in the termination letter prepared by Nottelson. T. III, 69.) Also, contrary to Nottelson's assertion in the discharge letter, Schultz denied that she ever argued with the nurse about giving DK pain medication. Schultz testified that DK's physician had mistakenly prescribed a narcotic for DK (because she heard the physician say DK could not have a narcotic), so she pointed this out to Burrows and Burrows agreed and ordered something that wasn't a narcotic. T. III, 66-67. Schultz testified that there was no argument, there was agreement. Gillihan, who was present at both the January 15 and 19 meetings held by Lisa Burrows, testified that she had no memory of Schultz arguing with Burrows about giving DK pain medication or stating that she (Schultz) was opposed to the use of pain medication. T. VI, 191-192. Dopke also testified that she did not remember Schultz arguing with Burrows about giving pain medication to DK. T. VII, 139.
Nottelson testified that the primary reason for Schultz's discharge was the third reason listed in the termination letter, failure to observe established health practices, which referred to giving standard first aid when someone stops breathing, that is, "begin(ning) CPR and/or calling 911. Not shaking someone." T. XI, 55. As stated previously, however, first level supervisor Dopke and the employees under her supervision all testified that they had been instructed to obtain permission before calling 911.
The fourth reason Nottelson listed for Schultz's termination-that Schultz was unwilling to work harmoniously with other employees-is also unworthy of credence. In the discharge letter, Nottelson stated that Schultz had been heard making hurtful comments about coworkers, and had demonstrated an argumentative and insubordinate attitude toward supervisory staff. At the hearing Nottelson testified that her basis for this claim was that Burrows and Dopke had told her Schultz was repeatedly rolling her eyes during the January 15, 1999 meeting and was argumentative with supervisory staff. Burrows and Dopke testified at the hearing in this matter, but neither testified that they had reported to Nottelson that Schultz was repeatedly rolling her eyes during the January 15 meeting and was argumentative with supervisory staff. In fact, neither testified that Schultz was repeatedly rolling her eyes and argumentative with supervisory staff during the January 15 meeting.
There was testimony about an individual rolling her eyes. However, it was not about Schultz rolling her eyes, and this did not occur on January 15, 1999. Schultz testified that at the beginning of the meeting on January 19, 1999, Burrows yelled at Gillihan for "looking at me, like rolling her eyes and [Gillihan] started crying." T. III, 21. See also, id. at 23. Similarly, Kavich, who was present for the January 19 meeting, indicated that Burrows admonished Gillihan at that meeting about rolling her eyes. Kavich testified that "What was said is Lisa Burrows directly confronted [Gillihan] and said stop that. You don't need to give her [Schultz] those looks, like that." T. VI, 109.
As for working harmoniously with her coworkers, Gillihan, who had worked with Schultz for 5 or 6 months, testified that she never had any trouble working with Schultz, that she had never observed Schultz having any trouble working with Kavich or Dopke, and that she had never observed Schultz making hurtful comments about her coworkers. T. VI, 199. Gillihan testified that based on her observations of Schultz, Schultz would not make hurtful comments about her coworkers. T. VI, 201. With respect to Nottelson's claim that Schultz was argumentative with supervisory staff, Gillihan, who had been present for the January 15 and 19, 1999 meetings, testified that she did not observe Schultz demonstrate an insubordinate attitude towards supervisory staff during the time that she had worked with Schultz. Id.
If Schultz's calls to Burrows and Nottelson concerning her lack of training to take care of DK, her inability to use the Hoyer lift alone to transport DK and her statement that a nurse or extra staff was needed to help care for DK were deemed to be "questioning management decisions," these were legitimate expressions of concern by Schultz.
Schultz denied ever having called the sheriff to remove a resident from the home. Schultz testified that "I don't know what the sheriff could even have to do with that. I don't even know what they're talking about on that. I never did that." T. XI, 227. On the second day of hearing, the ALJ refused to allow Schultz to present any testimony about why she had quit. T. II, 109. Based upon a statement by the complainant's counsel, however, it was Schultz's contention that during her first period of employment she was being asked to perform medical responsibilities that she was not qualified to do and that she quit because what she was being asked to do would endanger the resident. Id. at 110-112.
In addition to all of the above, there was nothing contained in the termination letter Nottelson prepared regarding impulsive and hysterical behavior as reason for Schultz's discharge. Also, the ALJ did not find testimony by Nottelson to be credible. The concerns raised with respect to Nottelson's credibility and the absence of any indication whatsoever in her termination letter that impulsive and hysterical behavior was a reason for Schultz's discharge casts serious doubts about Nottelson's claim that this was a factor in the decision to discharge Schultz. This is particularly true in view of Nottelson's assertion that she had mentioned to other management staff that she "was going to write her (Schultz) a letter of termination so that it was clear why I was terminating her.." T. XI, 51 (Emphasis added.)
In the commission's discussion with the ALJ, he indicated, as reason for his belief that Nottelson had a legitimate reason for discharging Schultz and would have terminated her employment even absent Schultz's contact with an ombudsman, that Nottelson considered that Schultz was "hysterical" on January 18, 1999. However, the credible evidence fails to support a showing that Schultz had given Nottelson reason to consider her to be "hysterical" on January 18. Nottelson's claims about Schultz stating in her phone call to Nottelson on January 18 that "there is blood all over the place" and "Oh God, I think [DK's] dying" is simply not credible. Moreover, there was nothing whatsoever in Nottelson's termination letter about Schultz being "hysterical" as reason for her discharge.
In addition, the ALJ also indicated that in his mind Nottelson's motivation to discharge Schultz was because Nottelson knew an investigation was coming regarding the hospital and doctor's complaints. The ALJ indicated that because Nottelson considered Schultz to have been "hysterical" on January 18, 1999, Nottelson knew that she could not "rely on Schultz" in CLA's defense of impending complaints. Ironically, the respondent makes just the opposite argument. The respondent argues that if Nottelson truly were concerned about an employee's contact with the ombudsman, it would be entirely illogical for it to fire that person. The respondent points out that Schultz told Kortens she had not yet spoken with the ombudsman and that she would wait and see how the situation worked out. The respondent argues that assuming for the sake of argument that Kortens conveyed that information to Nottelson, it would be far safer for CLA to keep Schultz as an employee and try to alleviate her concerns so that she would not contact the ombudsman again. The commission is not persuaded by the ALJ or the respondent's arguments.
The respondent further argues that many employees have contacted myriad state and county representatives to address concerns about various matters relating to the residents and the homes-all without anyone being discharged as a result. The respondent argues that approximately twice per year, Nottelson learns from other management staff, an employee's coworker, or the employee directly that employees have contacted the licensing person or county case managers regarding allegations of neglect or abuse, or other complaints about CLA's practices and none of those people were terminated. The respondent argues that it defies logic to suggest that Nottelson would make contact information for all the individuals with inspection/regulatory authority readily available to all staff and then fire people who use it.
While the respondent asserts there were many instances in which it had learned that employees had contacted state or county authorities and those employees were not fired, testimony was provided regarding only three alleged instances where this occurred, and the testimony regarding those instances was so vague that the significance of these three incidents was of questionable value. Nottelson testified that "someone" had called licensing to report the respondent wasn't providing adequate nutrition, which was in effect an abusive situation. Nottelson testified that just recently a staff member had reported physical abuse of a resident to licensing and a county agency. Nottelson testified that there was an incident where a staff person was teasing a client in a way that violated the resident's rights and a report was made to licensing about that. T. XI, 92. Presumably the "someone" that had called to report the respondent wasn't providing adequate nutrition was a staff person although Nottelson fails to specifically identify this person as such. In any case, none of the details or circumstances surrounding this incident were presented and thus the significance of this incident cannot be determined. The other two alleged incidents cited by Nottelson are even less availing. With respect to the recent staff member report of physical abuse of a resident to licensing, Nottelson does not state whether an employee or management allegedly caused the abuse. Clearly an allegation of abuse of a resident by an employee, as opposed to an individual that was part of management staff, would take on an entirely different import not only by CLA but also by the state licensing agency. Nottelson identified the remaining report of alleged abuse as concerning abuse by a staff person, not by management staff.
As for the assertion that it defies logic to suggest that Nottelson would make contact information readily available and fire people who use it, the respondent apparently suggests that it had voluntarily made ombudsman contact information available. The fact of the matter is, however, that CLA is required by administrative rule to post ombudsman contact information. See HFS Adm. Code § 83.07(15).
The respondent also argues that there was no reason for CLA's management to fear the ombudsman. The respondent argues that Nottelson testified without contradiction -- and indeed, the ALJ found -- that the ombudsman has no regulatory authority over CLA, cannot impose fines, and cannot revoke CLA's license for any home. The respondent argues that the ombudsman's strongest sanction is to report a concern to the state licensing specialist, and that since Nottelson already had self-reported the abuse allegations to Cindie Wilber, the state licensing specialist, the ombudsman could do no more than Nottelson already had done. The respondent asks, so why would Nottelson have any motive to retaliate against Schultz because Schultz contacted the ombudsman?
The respondent's arguments are not persuasive. CLA did have a motive to retaliate against Schultz. First of all, although the ombudsman could not impose a fine or remove CLA's license, CLA did have reason to fear the ombudsman because the ombudsman had authority to investigate complaints concerning improper conditions or treatment of aged or disabled persons at CBRFs and because the ombudsman refers suspected abuse or neglect directly to the state licensing specialist who could impose a fine or remove CLA's license. Second, what Nottelson had already self-reported to state licensing specialist Cindie Wilber involved a concern about how DK had incurred broken hips in December 1998. The credible evidence shows Nottelson knew that what Schultz had contacted the ombudsman about involved DK's care after his release from the hospital for his broken hips on January 7, 1999. Continued allegations of abuse or neglect of a resident to an ombudsman, when CLA was already under impending investigation for earlier alleged abuse or neglect of such resident, would certainly be cause for CLA to fear an additional investigation by the ombudsman.
The respondent's second contention is that Schultz failed to meet her burden of proving that the reason CLA gave for terminating her employment was pretextual.
To show unlawful retaliation under the WFEA, the employee must show that she engaged in protected activity, was subjected to an adverse employment decision, and that there was a causal connection between the two facts. If the employee makes this showing, the employer may rebut the claim of retaliation by articulating a legitimate, non-discriminatory reason for its action. If the employer meets that burden, the complainant may prevail by presenting evidence that the proffered reason was a pretext. Kannenberg v. LIRC, 213 Wis. 2d 373, 395, 571 N.W.2d 165 (Ct. App. 1997).
An employee may meet his or her burden of proving that the articulated legitimate, non-discriminatory reason offered by the employer is a pretext, either directly by showing that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence. Puetz Motor Sales, Inc. v. LIRC, 126 Wis. 2d 168, 175, 376 N.W.2d 372 (1985), citing Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
The respondent argues that the record contains no direct evidence of any illegal motive behind Nottelson's decision to terminate Schultz's employment. The respondent acknowledges that Dopke and Kortens testified that they told Nottelson about Schultz's statement that she had contacted the ombudsman. The respondent argues, however, that nothing in the record directly establishes that Nottelson terminated Schultz because of that.
The respondent argues that in terms of indirect evidence, the only evidence is the close juxtaposition in time between Schultz's statements that she had called the ombudsman, which were relayed to Nottelson on January 18, 1999, and Nottelson's decision later that same date to terminate Schultz's employment. The respondent argues that standing alone that evidence appears to suggest that a retaliatory motive may have been involved, but when placed in the context of Schultz's behavior that day, Nottelson's stated concerns about Schultz's potential inability to safely care for CLA's residents lends great credence to her principal reason for terminating Schultz. Further, the respondent argues that the timing of a complaint and discipline does not in itself establish retaliation, citing Kannenberg, 213 Wis. 2d at 395. (In the Kannenberg case, the court indicated that aside from the timing of discipline, the determination that the complainant's discipline was not motivated by her protected activity but instead a legitimate, non-discriminatory reason was supported by substantial evidence.) The respondent argues that given the ALJ's finding that Nottelson would have terminated Schultz even without Schultz having called the ombudsman, the close proximity of the two events is insufficient to establish the causal connection required to prove retaliation.
Additionally, the respondent argues that CLA could be civilly and criminally liable if a resident were to be injured or die as a result of abuse or neglect, that Nottelson was well aware of her responsibility to provide for the safety and well-being of its residents and was not willing to jeopardize the safety of an exceptionally fragile one such as DK. The respondent argues that Schultz's behavior on January 18, 1999, gave Nottelson more than ample basis for believing that Schultz was not responsible enough to call 911 when a resident stopped breathing, and that she was incapable of remaining calm in a crisis situation.
Interestingly, the respondent acknowledges that the close juxtaposition in time between Schultz's statements that she had called the ombudsman and Nottelson's decision later that same day to terminate Schultz's employment itself suggests that a retaliatory motive may have been involved. Once again, however, the respondent places primary reliance on its account of Schultz's January 18, 1999 behavior- that Schultz was not responsible enough to call 911 when a resident stopped breathing, and that she was incapable of remaining calm in a crisis situation-to discredit any connection between Schultz having called the ombudsman and the termination of her employment. However, as previously stated above, there is substantial evidence which indicates that Nottelson's assertions about Schultz's January 18 behavior are false. First level supervisor Dopke, staff employee Gillihan and Schultz all testified that that they had been instructed to obtain permission before calling 911. Furthermore, the testimony showed that when Schultz approached Dopke on January 18 and stated that 911 should be called, Dopke's response was "well we have to call the nurse or Sonja first." Also, the termination letter that Nottelson prepared for Schultz contained absolutely no indication whatsoever that inability to remain calm in a crisis situation was a reason for the termination of Schultz's employment. Unlike the Kannenberg case, CLA's claim that Schultz's termination was motivated not by her protected activity but instead by legitimate, non-discriminatory reasons, is not supported by substantial evidence.
Next, the respondent contends that there is no foundation for the ALJ's conclusion that Nottelson intentionally retaliated or discriminated against Schultz by discharging her for contacting the ombudsman. The respondent argues that the only possible explanation given by the ALJ for this conclusion is his reference to Nottelson's credibility at page 14 of the decision, where he states that Nottelson "was not found credible enough to conclude that she did not violate the law by discharging Ms. Schultz in part because of her having contacted the ombudsman." The respondent argues that this approach improperly places upon CLA the burden of proving that Nottelson did not retaliate against Schultz, when the correct legal standard is that the complainant at all times bears the burden of proving, by a preponderance of the evidence, that the non-discriminatory reasons proffered by the employer were not the true reasons, but rather a pretext for discrimination or retaliation.
Although the ALJ's decision may not have sufficiently explained why he found that Nottelson intentionally retaliated or discriminated against Schultz by discharging her in part for contacting the ombudsman, there is substantial factual evidence in this record on which to reach this conclusion. In fact, the commission concludes that the only reason Nottelson discharged Schultz was because she had contacted an ombudsman and that the non-discriminatory reasons proffered by CLA for Schultz's discharge were not the true reasons for the discharge, but rather a pretext for a retaliatory discharge. This evidence includes the immediacy of Nottelson's decision to discharge Schultz upon learning she had contacted the ombudsman, Nottelson's claimed inability to recall being advised that Schultz had contacted an ombudsman, the fact that the reasons given as a basis for Schultz's discharge were false and Nottelson's lack of credibility. As the Court stated in St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511 (1993):
"The factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination.. upon such rejection, `no additional proof of discrimination is required.' "
The commission has considered the respondent's reasons for questioning the ALJ's assessment of Nottelson's credibility. The ALJ stated that among other things, Nottelson "smiled throughout her lengthy testimony . and her expressions and what she was saying were very incongruous" and that Nottelson "repeatedly was shown to embellish the facts to make her story better, or to simply not bother to get the facts right."
The respondent notes that the ALJ points to two situations involving his second credibility observation: one relating to DK's condition when he returned to the Dunbar home from the hospital, and the other relating to a letter Nottelson sent to the Department of Workforce Development's Unemployment Insurance Division concerning the claims of Linda Kavich, for which Nottelson initially used incorrect dates.
The respondent asserts that Nottelson's smiles may have been due to a number of causes, none of which demonstrates that her testimony was incredible. The respondent asserts that as the transcript reveals, the ALJ, counsel and the parties periodically shared banter or jokes about a variety of matters, and based upon that contact, the ALJ surely can verify that Nottelson is a person who smiles often when she speaks, even when speaking about serious topics.
With respect to DK's condition, the respondent notes that the ALJ questioned Nottelson's testimony because she and nurse Burrows claimed DK had large bedsores when he returned from the hospital, but the daily logbook used by CLA's staff made no mention of DK's bedsores until one week later. The ALJ also comments that neither Burrows nor Nottelson took any action regarding the bedsores they claimed to know DK had until Burrows examined him on January 15, 1999. The respondent states that based upon the absence of any CLA logbook notes and the hospital's notes stating that DK had areas of breakdown that had healed, the ALJ concluded that Nottelson was not telling the truth about the bedsores.
With respect to the unemployment insurance matter, Nottelson sent a letter dated February 11, 1999, to the Unemployment Insurance Division, objecting to Kavich's claim for unemployment insurance benefits. Nottelson stated in this letter that Kavich had been very insubordinate and argumentative at a meeting conducted by Burrows on January 15, 1999, and that despite being given instructions at the meeting that DK never be lifted or moved without use of the Hoyer lift, Kavich moved him without the use of the Hoyer, disregarding the safety and well being of DK.
While the respondent portrays Nottelson as a person who smiles a lot, the ALJ was very emphatic in his discussion with the commission that Nottelson's smiling when discussing serious topics led him to find her testimony not credible. However, irrespective of what may have been behind Nottelson's tendency to smile a lot, based on this record the commission is satisfied that there are significant other reasons to conclude that Nottelson was not a credible witness. For example, the commission and the ALJ find Nottelson's testimony that she did not recall Dopke telling her Schultz had called an ombudsman, and that she (Nottelson) did not recall asking Kortens to find out why Schultz had called an ombudsman, simply incredible. Further, Nottelson's credibility suffers greatly because the reasons she listed in the discharge letter for terminating Schultz's employment, and Nottelson's testimony regarding those reasons, are unworthy of credence.
The respondent may be correct about DK's condition when he returned from the hospital on January 7, 1999. Schultz herself testified that DK had two large bedsores on his buttocks when he returned from the hospital. T. II, 157-156. It also appears the respondent did take some action regarding the bedsores, albeit limited. Again, testifying about the handling and care of DK upon his return from the hospital, Schultz testified, "Well, we just had to be very careful. I mean we had to change him. We were supposed to change him a lot to keep him dry." T. II, 157.
The respondent's argument regarding Nottelson's objection to Kavich's unemployment claim does not fare as well, however.
Nottelson sent a letter dated February 11, 1999, to the Unemployment Insurance Division, objecting to Kavich's claim for unemployment insurance benefits. Nottelson stated in this letter that Kavich had been very insubordinate and argumentative at a meeting conducted by Burrows on January 15, 1999, and that despite being given instructions at the meeting that DK never be lifted or moved without use of the Hoyer lift, Kavich moved him without the use of the Hoyer, disregarding the safety and well being of DK.
First, the respondent challenges any consideration of the February 11 letter because although marked for the record as Exhibit KC-14 at the hearing, and the ALJ addressed it at the hearing on three separate occasions, it was never admitted into evidence because Schultz's counsel expressly stated that he did not want it to be admitted into evidence.
This argument fails, however, because a document identified as Exhibit SC-28, which is identical to Exhibit KC-14, was received into evidence. T. I, 70-72.
Next, the respondent argues that even if the commission does not strike the portion of the ALJ's decision with respect to Exhibit KC-14, this evidence, without more, is not sufficient to show that its reason for termination was a pretext for retaliation. The respondent argues that Nottelson clearly was confused at the time she "wrote the termination letters to Lisa Schultz and Linda Kavich," but she credibly explained her confusion "about which of the two employees was present at which of the two meetings at issue."
The respondent's argument with respect to the wrong date (January 15, 1999) appearing on Kavich's January 22, 1999 termination letter is that Nottelson testified, and Burrows confirmed, that Nottelson initially telephoned Burrows to clarify the dates of the meetings involving Kavich, but Burrows was unable to check her calendar at that time, and by the time she did so, Nottelson already had mailed Kavich's termination letter. Specifically, Burrows testified that Nottelson had called her late during the morning on January 22, 1999, while she (Burrows) was at a meeting in West Bend. Burrows testified that she did not have her calendar with her on which she kept records of meetings. Burrows testified that she called Nottelson back during the evening on January 22, after she had reviewed her calendar, at which point it was discovered she had given Nottelson the wrong date for the meeting that Kavich had attended.
The respondent then goes on to argue that "[d]uring this time frame, Ms. Nottelson was dealing with the terminations of two of the four employees in (sic) Dunbar Home, all while also handling two full-time jobs because CLA's Program Manager (Kortens), who was essentially Ms. Nottelson's `second in command,' was on maternity leave." The respondent argues, that she became confused about "which dates applied to which employee" is certainly understandable under those circumstances, and should not be treated as reflecting adversely upon her credibility.
Further, the respondent argues that although an employer may have been less thorough than might be desired in gathering information and deciding to fire an employee, that does not establish that the employer's testimony is incredible. Quoting from the case of Kariotis v. Navistar International Transportation Corp., 131 F.3d 672, 676 (7th Cir. 1997), the respondent asserts, "[A]rguing about the accuracy of the employer's assessment is a distraction . because the question is not whether the employer's reasons for a decision are `right but whether the employer's description of its reason is honest.' " (Emphasis in original; internal citation omitted.)
This argument by the respondent also fails. While the respondent argues that the question is not whether its reasons for a decision are right but whether its description of its reason is honest, the evidence calls into question whether Nottelson "credibly explained her confusion." The "confusion" that supposedly existed on January 22, 1999, was clarified later that evening. Exhibit SC-28, which Nottelson sent to the Unemployment Insurance Division regarding Kavich's claim for unemployment insurance, is dated February 11, 1999. If Nottelson and Burrows' explanation for incorrectly placing Kavich at the January 15, 1999 meeting in Nottelson's January 22 letter of termination is to be believed, why was Nottelson still asserting in her letter to the Unemployment Insurance Division on February 11, that Kavich was insubordinate and argumentative at the January 15, 1999 meeting and that despite instructions given to her at the January 15 meeting about never moving DK without use of the Hoyer, she did so disregarding the safety and well being of DK? The absence of any logical explanation for Nottelson's February 11, 1999 letter statements regarding Kavich only further undermines her credibility.
Since the commission concludes that the respondent intentionally retaliated or discriminated against Schultz by discharging her solely for contacting a state official in violation of Wis. Stat. § 50.07(1)(e), the commission does not find it necessary to address the respondent's contention that the ALJ erred in awarding Schultz costs and attorney's fees because in retaliation cases under Title VII law, the federal courts uniformly apply the "but for" test and that a finding that the employer had a legitimate, non-discriminatory reason for terminating an employee is a complete bar to any remedy for the employee. (9)
The commission further notes that in a footnote at page 7 of its reply brief, the respondent argues that Dopke was not a credible witness. The respondent asserts that she is not partly because CLA gave her a chance of quitting or being terminated, "and partly because of her personal problems, including what she described as `traumatic amnesia' (sic) the use of many prescription drugs while she was working at CLA (which affected her memory both at the time she was working there and while she was testifying), suicide attempts, and a clear desire to be left alone and not be required to testify." (Citing T. VII, 145-159.)
The record fails to show any reason to believe that Dopke was not a credible witness. Indeed, in many instances the ALJ made findings consistent with the testimony that had been given not only by Schultz and Gillihan, but also Dopke. While Dopke's testimony indicates that she did not recall a fair number of things, there is no reason to believe that this did not make her a credible witness. And, as for remembering things, on the matter of staff being required to get a hold of administration before calling 911, Dopke stated that she specifically remembered being told this by Kortens and the reason why. Dopke Deposition, p. 83.
The respondent has not claimed that Gillihan was not a credible witness. If she was biased against the respondent, it is not apparent from reading of her testimony.
Finally, in the respondent's reply brief it objects to the fact that Schultz has attached to her initial brief to the commission, the initial and reply briefs she had submitted to the ALJ. The respondent objects because those documents include factual and legal arguments regarding Kavich's discrimination claim, which was consolidated with Schultz's case for purposes of the hearing. The ALJ dismissed Kavich's complaint and she did not petition for a review of that decision. The respondent argues Schultz has attached her briefs to the ALJ to her initial brief to the commission apparently in an effort to confuse the facts and include allegations that are not relevant to Schultz's claim. The respondent moves that all portions of Schultz's brief on review be stricken.
The commission has no reason to believe that Schultz was attempting to do what the respondent argues, especially since Kavich's claim was dismissed and she has not filed a petition for commission review. In any event, the commission did not consider the factual and legal arguments regarding Kavich's discrimination claim in reaching its decision on Schultz's discrimination claim.
SCHULTZ'S ARGUMENTS (10)
Schultz's basic objection to the ALJ's decision is that the ALJ finds that Nottelson discriminated or retaliated against her in violation of § 50.07(1)(e) Wis. Stats., but cuts off further remedy to her because he found Nottelson believable that she would have terminated her employment even had Schultz not contacted an ombudsman. Schultz argues that the ALJ makes this finding despite innumerable other findings concluding that Nottelson could not be believed on nearly every other critical point, including the reasons actually stated in Nottelson's termination letter to her.
Schultz also contends that the ALJ should have found that her discharge constituted a violation of § 16.009. Schultz argues that she, a lay person, was the author of a complaint that alleged "retaliation because I reported company to an ombudsperson." Schultz argues that § 50.07(1)(e) specifically refers to retaliation or discrimination through contacting "the long-term care ombudsman" under § 16.009 (11), and that § 16.009 established the ombudsman position mentioned in her complaint. Further, Schultz argues that Wis. Stat. § 802.09(2) (12) would apply if this case were in a more formal, civil court setting. She argues that not only was there no objection to the applicability of § 16.009(5), the respondent stipulated in its post-hearing brief that this section applied to Schultz's employment but contended that she was not discharged or retaliated against in violation of § 16.009. Additionally, Schultz questions whether excluding the applicability of § 16.009 would advance this statute's stated public purpose of insuring the care, treatment, health, safety, rights, welfare and comfort of residents in community-based residential facilities.
Schultz's arguments regarding the absence of a finding of a violation of § 16.009 are without merit. Counsel for both parties stipulated at the hearing that there were two bases for the discrimination alleged, Wis. Stat. § 46.90(4) and section 50.07. T. I, 2-3.
Next, Schultz argues that the ALJ's determination that her layperson January 14, 1999 telephone message left for the ombudsman stating that she was "calling regarding non-care of resident at group home she worked at" was insufficient to invoke the remedial protections of § 46.90 for reporting abuse or neglect, is a strained interpretation of that statute and defeats the public purpose of protecting residents such as DK.
Assuming for purposes of argument that the message Schultz left for the ombudsman constituted "a report," her message does not state that she believed that "abuse, material abuse or neglect has occurred." Moreover, even if Schultz' message is considered to be a report that abuse or neglect has occurred, it fails to satisfy the requirement under § 46.90(4)(a)1. that "The person shall indicate the facts and circumstances of the situation as part of the report." Clearly, Schultz's message does not indicate any facts or circumstances regarding asserted abuse or neglect of a resident at the respondent's facility.
Schultz apparently argues that a failure to find that her message constitutes a report of a fact-based abuse or neglect sufficient to bring § 46.90 into play would not advance the stated public purpose of that statute. Schultz has argued that the public purpose of Chapter 46 includes the provision of "effective aid and services to all persons in need thereof," which involves Wis. Stat. § 46.90. Further, Schultz argues that in Hausman v. St. Croix Care Center, 214 Wis. 2d 655, 571 N.W.2d 393 (1997), the supreme court stated that § 46.90(4)(b) demonstrated a fundamental and well-defined public policy of protecting nursing home residents from abuse and neglect. Again, however, Schultz's message fails to meet all of the requirements of § 46.90(4). Schultz's argument is a matter best addressed by the legislature.
Finally, Schultz requests that the commission examine the ALJ's handling of the hearing procedure in light of fairness and due process concerns. Schultz has not identified any specific aspects of the ALJ's handling of the hearing procedure that she believes rises to the level of creating fairness and due process concerns. Based upon a review of the record, however, one of Schultz's concerns is likely with respect to the ALJ's practice of reviewing the documents identified as potential exhibits at the start of the hearing before any testimony is taken on them, to ascertain whether counsel can stipulate their admission into evidence. According to the ALJ, this method of handling the exhibits saves time. Another likely concern of Schultz is that the ALJ frequently interrupted while a witness was being questioned by counsel to either ask his own question, or to himself object to the question being asked, even though opposing counsel has not objected. The practice of attempting to stipulate the admission of exhibits into evidence at the start of the hearing in an effort to save time may be well suited in certain cases. It may not be for other cases, however. The best approach may be for the ALJ "to play it by ear" and not impose this method of handling exhibits on the parties. As for the interruption of witnesses, there is no reason to believe that the ALJ's interruptions were for any other reasons than to ensure clarity in the testimony that counsel's question was attempting to elicit, and to otherwise obtain a good record. While Schultz's counsel was no doubt frustrated by the manner in which the ALJ conducted the hearing, the commission is not inclined to find that these concerns by counsel rose to such level that Schultz did not receive a fair hearing or that due process was denied.
Attorney Richard R. Grant
Attorney Marna M. Tess-Mattner
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(1)( Back ) Gillihan became the Dunbar house manager in March 2000, after Dopke's employment ended. Gillihan's employment was terminated in July 2000 after the hearings had begun on Schultz's retaliation claim.
(2)( Back ) Syncope was defined at the hearing as "a condition in which they faint, become dizzy. They can become unconscious for a time." However, the term syncope was also defined to include the definition: "a partial or complete temporary suspension of respiration and circulation due to cerebral ischemia (a lack of blood supply)." Bradycardia was defined as the condition where the heart pumps less than 60 times per minute.
(3)( Back ) The commission notes that the parties had stipulated to the sum of $35,000.00 as reasonable attorney's fees and costs at the time of the ALJ's decision, which held that CLA had discharged Schultz in part for an unlawful reason and in part for legitimate, non-discriminatory reasons and would have discharged her absent the unlawful reason.
(4)( Back ) "Abuse" means the willful infliction on an elder person of physical pain or injury or unreasonable confinement. § 46.90(1)(a). "Elder person" means a person who is age 60 or older or who is subject to the infirmities of aging. § 46.90(1)(c).
(5)( Back ) "Neglect" means a significant danger to an elder person's physical or mental health because the person who takes care of the elder person is unable or fails to provide adequate food, shelter, clothing or medical or dental care. § 46.90(1)(f)
(6)( Back ) The record in this case contains a transcript of several days of hearing testimony, with a volume number having been assigned to the transcript for each day's hearing testimony. References to the transcript will appear as "T." followed by a Roman numeral that indicates the volume in which the reference to the transcript appears, and then the page number.
(7)( Back ) The ALJ expressed absolutely no concern whatsoever about Schultz's credibility in the commission's credibility conference with him.
(8)( Back ) Earlier when asked what Schultz said when she called on the morning of January 18, Nottelson testified that "I asked her about the blood and she said that she observed the Duoderm patch to be coming loose and that she took it off (sic) it started bleeding profusely." T. Vol. XI, 42. (Emphasis added.)
(9)( Back ) The commission would note, however, that it has expressly rejected the "but for" standard in retaliation cases arising under the Wisconsin Fair Employment Act. See, Horton v. Hopkins Chemical Co. (LIRC, 06/08/92), aff'd., Dane Co. Cir. Ct., 04/06/93.
(10)( Back ) A number of Schultz's arguments are already reflected in the discussion above responding to the respondent's and therefore will not be repeated here.
(11)( Back ) Wis. Stat. § 16.009(5)(a) states, in relevant part, that no person may "Discharge or otherwise retaliate or discriminate against any person for contacting .any representative of the board" on aging and long-term care.
(12)( Back ) The respondent quotes the following language from Wis. Stat. § 802.09(2):
AMENDMENTS TO CONFORM TO THE EVIDENCE
If issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby.