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

LOUISE ANN GEMOULES, Complainant

CREATIVE COMMUNITY LIVING SERVICES INC, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR200303370


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

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

1. In the last sentence in paragraph 3 of the administrative law judge's FINDINGS OF FACT, the phrase "later earlier in the evening" is deleted and the phrase "by 8:00 p.m." is substituted therefor.

2. In footnote 1 to the administrative law judge's decision, the date "09/22/04" is deleted, and the date "September 22, 1994" is substituted therefor.

DECISION

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

Dated and mailed January 13, 2006
gemoulo . rmd : 164 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

In her petition for commission review the complainant challenges some of the factual findings made by the administrative law judge and attempts to supplement the hearing record with numerous factual assertions that were not made at the hearing. The complainant further contends that the respondent's witnesses had no credibility and suggests that her own version of events should have been assigned more credibility by the administrative law judge. The commission's review of this matter is based upon the sworn testimony and documentary evidence that was presented at the hearing, and it will not consider those factual assertions which are raised for the first time in the petition for review. The findings of fact which the complainant objects to are supported by competent evidence in the hearing record and, although the complainant urges the commission to reject the respondent's version of events as incredible, she has presented no compelling reason to disagree with the credibility determination reached by the administrative law judge. While the complainant asserts that exhibit R-80 shows the respondent lied and gave false information during a home visit by the county and state, the document in question was not introduced as an exhibit at the hearing and cannot be used to impeach the credibility of the respondent's witnesses. Based upon its independent review of the hearing record, the commission concludes that the respondent's witnesses were credible in their testimony, and it sees no reason to disturb the administrative law judge's findings of fact.

It is apparent from the evidence that the complainant did not file a complaint or attempt to enforce any right under the relevant statute, and did not testify or assist in any action or proceeding held under the relevant statute. Moreover, the complainant did not establish that the respondent believed she engaged or may engage in any of the protected activity described in Wis. Stat. § 111.322(2m). The mere fact that the complainant mentioned issues involving client care in a meeting which was primarily devoted to her complaints about having to pay the electric bill is insufficient to warrant a conclusion that the respondent formed the belief she was going to file a complaint against it or engage in other protected activities. Further, even assuming the complainant had shown that she engaged in covered protected activity, the record provides absolutely no reason to believe that she was subjected to disciplinary action or discharged for other than legitimate nondiscriminatory reasons. The respondent's supervisors issued warnings -- at least one of which was prepared prior to the complainant having raised any issue whatever regarding resident care -- to the complainant based upon legitimate concerns about her conduct and performance. However, the complainant's performance did not improve, and she continued to engage in a course of conduct which was so unacceptable as to warrant the termination of her employment. The individual who made the discharge decision, Chris Sarbacker, was not present at the meeting where the complainant raised concerns about the resident's care or the alleged misappropriation of funds, and was unaware that the complainant had raised any such concerns. Given the circumstances, there is no probable cause to believe that the complainant was discharged or otherwise discriminated against in retaliation for engaging in protected activity.

In her petition the complainant argues that she is aware of other former employees of the respondent who were discharged or warned because they brought up issues with their supervisors relating to client care. The complainant requests that exhibits and evidence from former employees that would buttress her allegations that the respondent takes retaliatory actions against employees who raise concerns about client care "be allowed in further consideration of the complaint." This request to supplement the hearing record is denied. The complainant has not specified what evidence she wishes to have considered, and the commission sees no reason to believe that she was prevented from presenting any admissible and material evidence at the hearing. Moreover, even if the complainant could establish that other employees were subjected to retaliation by the respondent, this would not affect the outcome of her case given her failure to demonstrate that she engaged in protected activity and where the respondent credibly demonstrated that her discharge was due to legitimate reasons.

Next, the complainant argues that the respondent's failure to return her belongings after her discharge should be considered an adverse employment action undertaken in retaliation for her protected activities. The complainant contends that she has not been able to work because she is without clothing and other belongings needed to seek and gain employment. This argument fails. The anti-retaliation provisions of the Wisconsin Fair Employment Act (hereinafter "Act") do extend to former employees, and an adverse action may be subject to those provisions even though its relationship to an employment opportunity is only indirect. However, there must be a significant connection between the alleged adverse action by the employer and the former employee's employment opportunities. See Seeman v. Universal Foods Corp. (LIRC, Sept. 22, 1994). The connection between the complainant's alleged inability to reclaim her personal belongings and clothing and her ability to obtain future employment is tenuous at best. The complainant has not explained what personal belongings she required to assist her in obtaining new employment, nor is there any reason to believe that the complainant had clothing in storage that would have been essential to her gaining reemployment as a live-in residential assistant, the type of work she was seeking at the time of the separation. The mere fact that some of the clothes the complainant might have chosen to wear to an interview or on a new job were unavailable to her is insufficient to place her allegations that the respondent improperly retained her belongings within the scope of the Act.

Finally, the complainant requests that the protective order issued by the administrative law judge be revoked with respect to certain documents. The complainant contends that the county critical incident report, R-77, and the letter from Ms. Kauramaki of the Department of Health and Family Services are normally considered public records, provided identifying information is blocked. The complainant also requests that the order to pay legal costs be revoked because she did not violate the protective order. The complainant explains that she did not give out documents or information in the documents and indicates that the information which she sent to the resident's ex-wife would have been available to her anyway.  (1)

These arguments lack merit. The complainant did not establish that the documents in question, one of which deals with an investigation of allegations of neglect and misappropriation of funds, are matters of public record, and the commission sees no reason to conclude that the administrative law judge's decision to issue a protective order with respect to those documents was inappropriate. Further, given that the two documents referenced by the complainant were not presented as exhibits at the hearing and, pursuant to the terms of the protective order, are to be destroyed or returned to the producing party, it appears that they are no longer part of this proceeding. Turning to the argument that the complainant did not violate the protective order, it is apparent from review of the case file that the complainant deliberately reported the substance of Ms. Kauramaki's letter to outside parties, in direct contravention of the terms of the protective order. The fact that the complainant referenced the letter without supplying an actual copy of it does nothing to lessen the severity of this offense, nor are her actions mitigated by the complainant's self-serving assertion that the information would have been available to the resident's ex-wife through other means. The protective order was clear and direct, and not open to interpretation by the complainant. It does not seem inappropriate that the complainant should be required to pay the legal costs associated with her deliberate violation of that order.

Overall, the commission finds no fault with the administrative law judge's pre-hearing discovery orders, and it agrees with the findings of fact and conclusions of law issued by the administrative law judge. Because the complainant failed to demonstrate probable cause to believe she was discriminated against in the manner alleged, the dismissal of her complaint is affirmed.

cc: Attorney Thomas P. Godar



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Footnotes:

(1)( Back ) In a position statement filed with the commission on October 3, 2005, the complainant states that it is her understanding the state has publicly released a copy of Ms. Kauramaki's letter in response to a claim she filed against it and contends that its actions are in violation of a court order and of patient confidentiality and HIPPA rules. However, these arguments are beyond the purview of the commission's review of this case.

 


uploaded 2006/01/13