JASON L NADEAU, Complainant

FELICIAN SENIOR LIVING COMMUNITY, Respondent A

HDS, Respondent B
 

An administrative law judge 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 administrative law judge. Based on its review, the commission agrees with the decision of the administrative law judge, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

1. The following paragraph is inserted after paragraph 8 of the administrative law judge's FINDINGS OF FACT:

"9. The BQA did not notify St. Mary's of the identity of the individual who had filed the complaint, nor did it reveal who it interviewed in the course of its investigation. St. Mary's was unaware that Nadeau had filed a complaint against it or that he had provided the BQA with any information."

2. Paragraphs 9 and 10 in the administrative law judge's FINDINGS OF FACT are renumbered as paragraphs 10 and 11.

3. Paragraphs 11 through 16 of the administrative law judge's FINDINGS OF FACT are deleted.

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

Dated and mailed November 18, 2005
nadeaja . rmd : 164 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

In his petition for commission review and supporting briefs the complainant argues that in September of 2003 he filed a verbal complaint of favoritism against Gary Solberg with HDS and that, in October of 2003, he began receiving unsubstantiated disciplinary write-ups. The complainant contends that, prior to filing this complaint, he had no disciplinary actions other than some minor late clock violations. The complainant's argument fails. The complaint in this matter does not allege retaliation based upon the complainant's internal complaint of favoritism on the part of a supervisor, nor would such an allegation be covered under the Wisconsin Fair Employment Act. Thus, even if it could be found that the complainant was disciplined as a result of an internal complaint of favoritism by Mr. Solberg -- and the commission sees no reason to conclude this was the case -- he would not be entitled to a decision in his favor.

Next, the complainant argues that he filed a complaint with the Bureau of Quality Assurance (BQA) in February of 2004, and was involved in the BQA's investigation interview process. The complainant contends that Mr. Solberg was aware of this involvement. In support of this assertion, the complainant presents a notarized statement from his mother, Patricia Nadeau, which states that Mr. Solberg made comments indicating that he was aware the complainant had been questioned by the BQA. The complainant states that his employment was terminated approximately two weeks after the respondent received the results of the investigation, and that this was in retaliation for his complaint. Again, the complainant's argument fails. At the hearing Mr. Solberg testified that he was not aware the complainant had been interviewed by the BQA and, although the complainant may have believed otherwise, the commission finds Mr. Solberg's testimony on this point to be persuasive. The statement by the complainant's mother, who did not testify at the hearing and was not subject to cross-examination by the respondent, is not part of the hearing record and cannot be considered. Moreover, even if the complainant had established that Mr. Solberg knew he was interviewed by the BQA, this would not lead to a conclusion that the respondent was aware the complainant had any involvement in the complaint. The respondent's human resources director explained that the BQA interviews numerous individuals when it comes on the premises, that it does not reveal the identity of the individual who has made the complaint and, further, that the BQA's visits are not always in conjunction with a complaint. She further indicated that the respondent is not permitted to accompany the BQA investigator during the investigation and that she was unaware the complainant had been interviewed by the BQA. Given the circumstances, the commission is unable to conclude that the respondent was aware the complainant had engaged in any protected activity.

In his briefs to the commission the complainant also makes an argument that the Division issued a ruling that certain documents submitted by the respondent at the hearing were provided in violation of the Wisconsin Open Personnel Records Law because the respondent submitted them without attaching a copy of the complainant's written disputes. The complainant submits a copy of a February 8, 2005, letter from a Labor Standards Investigator at the Equal Rights Division which supports his assertion, and requests that the documents in question and any testimony regarding those documents be removed from the record. However, assuming the Open Personnel Records Law required the respondent to supply the complainant's written objections along with the copies of disciplinary warnings it presented at the hearing, the commission does not believe that the appropriate remedy for its failure to do so would be the after-the-fact exclusion of those documents. While an argument might reasonably be made that the complainant should be permitted to supplement the record with copies of his written objections, no such remedy is warranted in this case. In the first place, the complainant had an opportunity to address this situation at the hearing, but failed to do so. The complainant voiced no objection to the respondent's exhibits at the hearing, although he was aware his comments had not been appended, nor did he make any attempt to submit the complete documents on his own behalf. Second, it is clear from the testimony that the complainant disagreed with the content of the warnings and believed they were unwarranted. Consequently, the addition of his written objections would add little to the record. Third, and most importantly, the result in this case did not depend upon a consideration of whether the warnings were justified. The warnings were issued prior to the complainant having engaged in any protected activity and, therefore, could not have been in retaliation for his engaging in such activity.

Finally, the commission notes that, although the administrative law judge dismissed the complaint at the conclusion of the hearing based upon the complainant's failure to prove that the respondent was aware of his protected activity, he neglected to include any factual findings on this point in his decision. The commission has, therefore, modified the administrative law judge's decision to include such findings. The commission has additionally modified the decision to delete conclusions of law that were included in the portion of the decision devoted to findings of fact. These modifications notwithstanding, the administrative law judge's dismissal of the complaint is affirmed.

cc:
Kevin L. Nadeau
Attorney Daniel J. Finerty

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uploaded 2005/12/05