DIANNE J MATSON, Complainant

AURORA HEALTH CARE, Respondent

The Equal Rights Division (ERD) of the Department of Workforce Development consolidated this case with ERD Case No. 200504563 for hearing purposes. An administrative law judge (ALJ) for ERD issued a single decision resolving both cases.

A timely petition for review of the ALJ's decision was filed.

The commission is separating Case No. 200504562 and Case No. 200504563, and issuing a decision in each case.

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 makes the following:

Exhibit #R-9 is received into the hearing record. The ALJ's decision of July 20, 2007, is set aside insofar as it relates to and resolves the issues in this case, and this case is remanded to the department for further proceedings consistent with this decision.

Dated and mailed March 21, 2008
matsodi2 . rrr : 115 : 9

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

In this charge, the complainant alleges sex discrimination and fair employment retaliation. Section 3 of the charge form asks a complainant to check the boxes "that were the reason for discrimination." On the complainant's charge form, she checked the box for sex, and for opposition to discrimination in the workplace. There is not a separate box for sexual harassment. Section 4 of the form asks a complainant to describe the events that led to the filing of the charge. The complainant stated in this section, "Please see attached statement."

This statement asserts (emphasis added):

I began my employment with Aurora on September 21, 2002. Through the course of my employment I feel that I was retaliated against, discriminated against, and terminated due to my sex (female). This discriminatory and retaliatory treatment continued until I was terminated on February 14, 2005.

The discrimination I was subjected to was from a physician who consistently would not allow me to perform my job duties and would constantly belittle me because I was female. Whenever I complained about sex discrimination, nothing was done. However, I was ostracized and retaliated against by the physician whose conduct I had reported. I continued to complain about the way I was being retaliated against, but nothing was done. The retaliation against me continued and ultimately I was terminated on February 14, 2005. I feel that my termination was because of my complaints of sex discrimination (as well as retaliation under the health care work protection law, filed under a separate complaint) and in retaliation for my complaint.

I believe that I was discriminated against and terminated in violation of state and federal law.

The emphasized language conveys an allegation of sexual harassment. It should be noted that such harassment does not have to have a sexually offensive component, but includes, pursuant to Wis. Stat. § 111.36(1)(br), unwelcome verbal or physical conduct, of any kind, directed at an individual because of that individual's gender. See, Braunschweig v. SSG Corp., ERD Case No. CR200400816 (LIRC Aug. 31, 2006); Engen v. Harbor Campus, ERD Case No. CR200400475 (LIRC Feb. 22, 2008).

In addition, in the complainant's response to the respondent's answer to the charge, counsel for complainant specifically states that, "Dr. Mejalli had harassed Ms. Matson repeatedly due to her sex.'"

The ERD investigator apparently understood that sexual harassment was alleged in this charge, since, in her requests for information from the parties and the individuals whose names they provided, she specifically asked for examples of sexual harassment of the complainant by the alleged harasser, Dr. Mejalli. In addition, in her initial determination, she specifically addressed the allegation that Dr. Mejalli had belittled the complainant and engaged in other negative treatment of her because she was female.

Unfortunately, in this initial determination, the investigator specified the issues as sex discrimination as to terms and conditions of employment and termination, and fair employment retaliation. Although sexual harassment is a type of sex discrimination, it is distinct from sex discrimination as to terms and conditions of employment.

Based upon this statement of issues, the notice of hearing was crafted.

The ALJ, at hearing, based upon this statement of issues, and apparently without reviewing the charge, ruled that sexual harassment was not an issue in this matter, and, over the now-unrepresented complainant's continuing and strenuous objections, prevented her from offering evidence as to Dr. Mejalli's harassment of her or other female workers.

Given this history, the commission is setting aside the ALJ's decision in this case, and remanding this matter to ERD for further hearing to permit the complainant to offer evidence as to her allegation of sexual harassment. Evidence relating to Mejalli's treatment of Matson as well as other female workers could be relevant to her allegation of sexual harassment.

In her appeal to the commission, the complainant takes issue with the ALJ's conduct of the hearing and treatment of her during the hearing. There is no question that the ALJ was direct, and sometimes impatient, in his exchanges with the complainant. However, other than the ruling discussed above, none of his other rulings were erroneous, and his impatience with the complainant was not sufficiently egregious to prejudice her ability to present her case.

Other matters

According to the transcript, the ALJ failed to rule on the receipt of exhibit R-9 into the record even though he recorded on the exhibit report that it was received. As a result, the commission is ordering the receipt of exhibit R-9 into the record.

As discussed above, the complainant takes issue in her appeal to the commission with the ALJ's rulings and his conduct. One example she describes in particular involves the ALJ permitting counsel for respondent to proceed to present her motion to dismiss before the complainant had called her final witness. However, the record reflects that this was a good faith misunderstanding by the ALJ based on complainant's statement to him that she was "done." Once the misunderstanding was pointed out, the ALJ permitted the complainant to call her last witness, and there was no prejudice to the complainant as a result.

The complainant, in her appeal to the commission, also asserts that she was prejudiced by the ALJ's failure to explain to her the process for offering exhibits for receipt into the hearing record. However, not only did the ALJ demonstrate the process for marking, offering, and receiving exhibits throughout the hearing, but he also explained the process and its effect to the complainant (see page 194 of transcript).

The complainant also points to alleged errors in the transcription of certain testimony. In particular, she cites to page 104, lines 13-14, and asserts that she did not testify that Krauklis's response was "You didn't do things quite right," but instead that "We didn't do things quite right." As a result, the complainant should be permitted during the course of the remand hearing to testify as to this matter for purposes of clarification. Although the complainant expresses other more general concerns with the accuracy of the transcript, she does not do so with sufficient specificity to justify permitting her to offer any other clarifying testimony.

Finally, the complainant asserts that the respondent did not provide certain information relating to its discipline of Dr. Mejalli in response to her discovery request. However, the complainant failed, prior to hearing, to file a motion to compel discovery, or to otherwise bring this discovery matter to the attention of ERD. It was simply too late to raise this for the first time at hearing. In addition, the complainant did not establish at hearing that disciplinary records other than those provided by the respondent in response to her discovery request actually exist.

cc: Attorney Mary Pat Ninneman 

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uploaded 2008/03/24