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

CYNTHIA KORN, Complainant

DIVINE SAVIOR HEALTHCARE, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR200103098,


An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusions in that decision as its own, except that it makes the following modifications:

Delete paragraph 3 of the Conclusions of Law and substitute therefor the following:

3. Ms. Korn has failed to show probable cause to believe that Divine Savior violated the Health Care Worker Protection Act, Wis. Stat. § 146.997, when it discharged her from employment.

DECISION

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

Dated and mailed January 16, 2004
korncyn . rmd : 110 : 

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

Complainant Cynthia Korn is a respiratory care practitioner who worked at Divine Savior Hospital and Nursing Home in Portage, starting in 1993. She worked primarily in the hospital's cardiopulmonary department. Her supervisor was Glenna Cade, director of cardiopulmonary service. This case concerns Complainant's reactions to a physician (Dr. Anthony Vacca) who became the medical director of the cardiopulmonary department in 2000. Soon after Vacca's arrival, the Complainant began complaining about him to her supervisor. These complaints primarily concerned his treatment of staff, although there were sometimes references to the effect that the Complainant believed the doctor was having on patients. These complaints continued, and the conflict grew. The conflict continued during a period (from February 5 through March 25, 2001) in which the Complainant was off on medical leave, and then culminated shortly after her return from medical leave with the Complainant being put on administrative leave and then being terminated.

Based on a careful review of the evidence in the record, the commission is satisfied that the ALJ's findings of fact are a comprehensive and accurate description of what occurred, and for that reason it has adopted those findings as its own.

As the ALJ found, the complaints which the Complainant made about Dr. Vacca were in large part complaints about the way he treated staff at the hospital. This is significant because the Health Care Worker Protection Act (HCWPA) is limited to protecting employees to the extent that they make reports about things which they believe may result in inadequate care of or mistreatment of patients. In addition, to the extent that the Complainant's reports were related to allegations having some connection to patient care, they were largely outside of the scope of the HCWPA because of who she made them to (or threatened to make them to). The HCWPA is limited to protecting employees to the extent that they make reports about inadequate care of or mistreatment of patients to a state agency, a professionally recognized accrediting or standard-setting body, an officer or director of the facility, or an employee of the facility in a supervisory capacity or in a position to take corrective action. Wis. Stat. § 146.997(2). Many of the actions of the Complainant were complaints to other employees of Respondent who were not "in a supervisory capacity or in a position to take corrective action", or threats to go to the local newspaper with accusations against Vacca.

The commission agrees with the ALJ's finding that the Respondent's response to Complainant - including the eventual decision to discharge her - was not motivated by a desire to retaliate against her for making such complaints, but instead by dissatisfaction over the disruptive and inappropriate methods that the Complainant used to raise her complaints, that being her attempts to enlist reluctant co-Worker's to join in her campaign against Vacca, and her threats to make accusations about Vacca to the local newspapers. The commission also agrees with the ALJ's findings that some of the Complainant's complaints - her most inflammatory and disruptive ones, including her assertion to a co-worker that the hospital had said she was "crazy", her statements to a co-worker that Vacca was "killing" patients, and her threats to make accusations about Vacca to the local paper - were false and misleading, were motivated by a desire to see the hospital punished regardless of the truth of the allegations, and were not made in good faith. This is significant because the HCWPA protects employees only to the extent that their reports are made in good faith. Wis. Stat. § 146.997(3).

These ultimate findings of fact concerning motive and intent of course necessarily implicate the ALJ's assessment of the credibility of the Complainant and the Respondent's witnesses. The commission agrees with that assessment

NOTE: The commission modified Paragraph 3 of the ALJ's Conclusions of Law to delete the reference to Wis. Stat. § 111.322(2m) because no issue concerning that provision was presented in this case.

As noted, this case arose under the Health Care Worker Protection Act, Wis. Stat. § 146.997, which provides protections for employees of health care facilities or providers who make certain kinds of reports to certain entities. If an employee makes a report under § 146.997(2) and is then disciplined, and believes that the discipline was imposed because of the fact that they made the report and was thus in violation of § 146.997(3), their remedy is to file a complaint with the ERD so alleging. Such allegations that an employee has been retaliated against for reporting in good faith under the HCWPA, are directly enforced by the ERD. See, Wis. Stat. § § 106.54(6), 146.997(4).

A different question arises if an employee who files such a complaint with the ERD, or otherwise resorts to the ERD (or is believed by their employer to have done so or to be about to do so) is then subjected to some adverse action by the employer, and the employee believes that adverse action was imposed because of the contact with the ERD. In that case, they may allege a violation of § 111.322(2m), the "omnibus" anti-retaliation provision of the WFEA which provides protections for employees against retaliation for attempts to enforce rights under a number of other statutes. The anti-retaliation provision in § 111.322(2m) applies to cases in which the employee has "file[d] a complaint or attempt[ed] to enforce any right under", or "testifie[d] or assist[ed] in any action or proceeding held under or to enforce any right under" one of the listed statutes. The types of actions which are afforded protected status by this section are what is referred to as "participation", to be distinguished from what is referred to as "opposition". Pampuch v. Bally's Vic Tanny (LIRC, March 7, 1994).

There was no allegation in the complaint in this matter that the Respondent discriminated against the Complainant in some respect because she had filed a complaint with the ERD or otherwise attempted through the ERD to enforce her rights, or because she had testified or assisted in any action or proceeding held under or to enforce any right under the auspices of the ERD. Nothing in the complaint suggested any intent to claim a violation of § 111.322(2m) of the WFEA. The Complainant alleged simply that she had made "reports" of the kind contemplated by the HCWPA - that is, reports to her employer - and that she had been retaliated against by her employer for making such reports. The complaint thus alleged, expressly and exclusively, a violation of HCWPA.

Despite this, the ERD investigator treated the complaint as also containing an allegation of a violation of § 111.322(2m). A conclusion concerning this supposed allegation was included in the Initial Determination, and, presumably for this reason, the ALJ also included a conclusion about this supposed allegation in his decision.

This was not a case in which the complainant was unrepresented when filling out her complaint and in which the complaint thus should not be read narrowly so as to prevent her from introducing evidence on issues which are closely related to those raised in the complaint. Compare, Hiegel v. LIRC, 121 Wis. 2d 205, 359 N.W.2d 405 (Ct. App. 1984). Here, the complaint was drafted and filed on the Complainant's behalf by her attorney. Presumably, if she had intended to allege not only a violation of the HCWPA, but also a violation of § 111.322(2m), she would have done so. Therefore, it is appropriate to apply the principle recognized in James v. Associated Schools, Inc. (LIRC, 11/27/91) and other decisions, that where an issue is not raised by a complaint, the Equal Rights Division's Investigation Bureau is without authority to issue an Initial Determination making a conclusion on that issue, and the Equal Rights Division is without authority to conduct a hearing on that issue.

The commission would finally note that even if a cause of action for retaliation under § 111.322(2m) had been stated in the complaint, there was simply no evidence in the record which would have supported it. It is clear that prior to the ending of her employment, the Complainant had not filed a complaint with or otherwise attempted to invoke the authority of the Equal Rights Division, and there is no evidence that the Respondent was motivated in any action it took relative to her by a belief that she had done so or would do so. There was thus no "participation" action by the Complainant that could have been a motive for retaliation by the Respondent.

cc: 
Attorney Linda L. Hale
Attorney Daniel T. Dennehy


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uploaded 2004/01/20