PATRICIA SUE BROWN, Complainant
MAPLE LANE HEALTH CARE CENTER, Respondent
An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. The respondent timely filed a petition for review.
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:
1. The respondent, Maple Lane Health Care Center, is a skilled nursing facility and intermediate care facility for the mentally retarded (ICFMR). It is operated by Shawano County. Judith Rank is employed by Shawano County and is the Human Resource Coordinator.
2. The complainant, Patricia Brown, began employment with the respondent as a Registered Nurse in September 1996. From October 1997 to December 1997, she worked as the acting Director of Nursing (DON) and reported to then administrator, Cynthia Legro. In December 1997, when Jim Callendar was hired as the DON, Brown worked as the assistant DON and reported to Callendar. When Callendar left the respondent in November 1998, Brown took over as the DON and again reported to Legro. When Legro left the respondent in June 2000 the respondent's board of trustees and/or the Shawano County Board appointed Brown as the head of the facility until Debra Captain was hired as the administrator in November 2000.
3. Brown again worked as the DON when Captain was hired as the respondent's administrator. As the DON, Brown was responsible for the nursing department, supervising 13 to 15 RNs and LPNs and the certified nursing assistant (CNA) staff, which comprised of 30 to 40 CNAs. Brown reported to Captain. Also reporting to Captain were Sandy Wolff (Dietary Manager), Barbara Hopfensperger (Social Worker), Karla Downs (Qualified Mental Retardation Professional (QMRP) and ICFMR director), Brenda Schroeder (Activity Director) and Gary Johnson (Maintenance). These staff members, except for Johnson, were part of Maple Lane's management team. The management team met every weekday morning to go over issues that arose over the past 24 hours or the weekend. This included standard of care issues.
4. During the spring of 2003, the respondent had a total of 102 licensed beds, 78 of which were under the nursing home license and 24 which were under the ICFMR license.
5. Captain and Brown saw clinical issues very much the same. However, Captain did not always agree with the manner in which Brown interacted with staff. Captain sent Brown to a seminar pertaining to supervisory issues (apparently in September 2001), and, following that, Captain gave Brown a book of Captain's by Daniel Goleman titled,
Working with Emotional Intelligence. Brown stated that she could not remember why she attended the seminar.
6. In an employee performance evaluation Captain completed for Brown for the period from January 1, 2001 to December 31, 2001, with respect to "Ability to work with fellow employee's (sic)", Captain checked both the box "Meets Expectations" and the box "Needs Improvement". In the section "Remarks by Supervisor", Captain commented in part as follows: "Pat continues to grow in her role as DON....Regardless of any procedural fault Pat may have, I know as administrator that I can trust her decisions regarding resident care implicitly." Captain and Brown signed the performance evaluation on January 22 and 23, 2002, respectively.
7. In an employee performance evaluation Captain completed for Brown for the period from January 1, 2002 to December 31, 2002, with respect to "Ability to work with fellow employee's (sic)", Captain checked the box "Meets Expectations". In the section "Remarks by Supervisor", Captain commented in part as follows: "Pat continues to grow in her leadership role. Interpersonal skills have improved and have been positively commented upon by subordinate staff....Pat continues to do her utmost to create an environment of high expectation of resident care. As a DON, I personally trust Pat implicitly to ensure resident care." Captain and Brown signed this performance evaluation on March 2 and 3, 2003, respectively.
8. During the week that included the days May 8 and May 9, 2003, Captain was on vacation. On Monday, May 12, 2003, several staff that had been involved in altercations or situations with Brown came to Captain's office to share their concerns. One of those persons was certified nursing assistant Renee Popovich. Captain testified that she learned from Popovich about an incident where Brown "ended up pointing her finger and getting in her [Popovich's] face".
9. The incident between Popovich and Brown occurred on May 8, 2003. Popovich testified that she saw another unit's food cart sitting, and, because teamwork had always been stressed, she took it down to that unit and delivered it to the dining room. Popovich testified that as she returned down the hallway she was talking to another employee who had remained in the hallway and that when she got to the end of the hall, Brown came around the corner and stated, "Do you want all Shawano County to year your conversation?" Popovich testified that she responded, "No, but to each their own" and went down to her unit. Popovich admits that her approach was not appropriate because she was a little sarcastic. Popovich testified that a while later she was in the dining room and that after Brown finished a conversation with the dietary department head (Sandy Wolff), Brown came back to her and stated she (Brown) was not happy with how Popovich had commented to her. Popovich testified that Brown said she wasn't where she was supposed to be, that she and the other employee were screaming in the hall, and that it was inappropriate and she should have not been doing that. Popovich testified that Brown kept sticking her finger in Popovich's face like she was reprimanding Popovich and that eventually Popovich told Brown she didn't feel like she was screaming. Popovich testified that Brown seemed very upset, her voice was raised and that there were other residents from the facility around at the time. Popovich testified she reported to Captain that she did not feel it was appropriate for Brown to reprimand her in that manner in front of residents and other staff.
10. Captain testified that CNAs Annette Ejnik and Joanie Kuznicki (phonetic) also brought it to her attention that Brown had "basically got in Joanie and Annette's face." Apparently, Popovich had been talking to CNA Annette Ejnik and also possibly CNA Joanie Kuznicki (phonetic) in the hallway, or, Ejnik and Kuznicki had just been talking in the hallway. In any case, Brown testified that when she got to the dining room she saw the food cart sitting there and she brought it to Annette and Joanie's attention that the residents' food was getting cold while they were in the hallway having a personal conversation. Brown also testified that while assisting residents with feeding, she observed that resident "May" was "incontinent of urine" that had "pooled underneath her wheel chair." Brown testified that Joanie made the comment, "Oh, I guess the nights didn't toilet her." Brown responded, "it's after 8 o'clock, and you guys have been here since 6. It's obvious that you didn't toilet her."
11. Captain further testified that Sandy Wolff also reported an incident that had occurred on the morning of May 8. Captain testified that Wolff reported to her that Brown had a bowl of some product that she put in Wolff's face and asked, "What was this?", that Brown continued on to say "if you don't go in there and fix what's wrong, I'm going to go in there and ream some ass" or something like that and that this was said in the dining room among staff and residents. Brown testified that all of this resident's food was pureed and thickened because the resident had swallowing difficulties and no teeth, and that the cereal on the resident's tray was like soup. Brown asserted that she took the cereal back to the kitchen and met Wolff in the hall in front of the kitchen and that "kidding around" she said, "Are you going to take care of this or do I need to go in there and ream some ass myself?" However, with respect to where this incident occurred, when questioned about why her discrimination complaint states "I saw the dietary manager in the main dining room and explained the problem" and why she didn't write that the incident happened in the hallway if it happened in the hallway, Brown admitted that she did not have a good answer for that. T. 406-407. Furthermore, Wolff contradicted Brown's testimony about the location of the incident. Wolff testified that she was in the dining room feeding a resident and that Brown came to the dining room with a bowl and asked what it was. Wolff testified that she agreed that the cereal could be a little thicker and then Brown stated that if she was not going to do anything about it, Brown would go in there and "kick some ass". Wolff testified that she just took the bowl from Brown and went to the kitchen to fix it. Further, Wolf testified that she "viewed this interaction as problematic because we were in the dining room amongst other employees and residents." Brown conceded that her comment was either said loud enough or in the presence of other people where other people heard her. T. 407.
12. Captain further testified that she received a report involving a situation on May 8, where Brown interrupted a meeting that Karla Downs was having with staff and basically "got in her face" about a "pee bucket" not being emptied. Brown testified that she had not instructed Downs to empty the urine bucket, that she just asked Downs "when she came in, if she noticed a problem with that, please let us know." However, Downs contradicted Brown's testimony. Downs testified that while she was meeting with staff, Brown was concerned that staff had left the urine bucket uncleaned for a period of time, that Brown appeared quite agitated about that and "came to me about that in the presence of subordinate staff and basically insisted that I, every morning when I come in, check the urine bucket to make sure it was clean." Downs testified that she reported this to Captain, telling her she was "uncomfortable with Brown's approach, that I didn't think it was appropriate in the presence of staff. I also felt uncomfortable that she felt her place was to give me a directive like that as a peer." Downs testified that she told Captain about this pretty much first thing in the morning when she (Downs) came in to work on the following Monday.
13. In addition, Captain testified that also on May 12, 2003, she received a report regarding an incident that had occurred on May 9, 2003. This incident involved a long-term resident with an acute medical situation that had been transferred to the hospital and the hospital was looking to place the resident back at Maple Lane. Captain testified that concerns were brought to her by Hopfensperger and Downs that they were upset because Brown, the DON, who should have been intimately involved, just basically said the patient's not coming back. Brown testified that at about 1:30 p.m. on May 9, Hopfensberger and Downs approached her regarding resident "Pauly" potentially still having an antibiotic IV, a new "trach" (plastic tube in his throat to breathe) and a new PEG tube (a tube in his stomach to provide all of his nutrition). Brown testified that in her opinion, Maple Lane could not accommodate the resident's needs. Brown testified that she would not have had any trach supplies (from dressing to a replacement if he popped it out). Brown testified that this was her basic concern. Brown testified that her other concern was not having sufficient qualified staffing to care for a new trach patient or run the IV. However, Hopfensperger described the problem with Brown's handling of the situation as follows: "When the day came for him to come back...there was still continued discussion about his medical needs.... There was still some questions, and...I did not feel like I had the medical knowledge to even be participating in those discussions....I did not feel like Pat really wanted anything to do with this admission. I didn't think she even wanted to pick up the phone and, talk to anybody about what the specifics of his medical needs were...until which point in time Pat just suddenly decided we just weren't going to admit him." T. 530. Hopfensperger testified that she was disappointed from the standpoint that Brown wasn't acting as part of the team in deciding how or if this resident was going to come back to the facility. Id. Hopfensperger testified that "what was upsetting to myself and the QMPR (Downs) is Pat didn't seem to want to call the acute care hospital and even talk to them. We felt like we were kind of dumped with...calling the hospital and trying to figure this out, trying to figure out where he was going to go if he wasn't going to come to us. He had lived there for over 20 years." T. 499.
14. On May 12, 2003, Captain called Brown in for a meeting. Captain testified that she attempted to go through some issues with Brown and that Brown "got up and slammed the door and walked out." Brown denied walking out of that meeting and slamming the door.
15. Captain further testified that during the week of May 12, 2003, she, Sandi Diederich, who at the time was the administrative assistant to Brown and a close friend of Brown's, and Brown had a discussion in Brown's office where they actually "brainstormed putting together a schedule for Brown as a staff nurse and what it would take financially to cover her hours...so that she wouldn't be losing any money." T. 175-176. Captain testified that nothing became of this discussion because it was a situation that was hard for all of them, including Brown, "but Pat verbalized that she was burned out. She verbalized strongly she hated her job, and I think we were attempting to keep her at Maple Lane." T. 176.
16. Captain testified that on May 20, 2003, in a morning meeting with Judith Rank, she (Captain) reached a decision that she was going to remove Brown from the DON position. Captain and Rank testified that they put together a plan to meet with Brown at 2 p.m. that day and to tell Brown that she was no longer going to stay in the DON position and that if she wanted to stay with the respondent, they were offering her three other positions and wanted her to take one of those three positions.
17. At the 2 o'clock meeting, Captain told Brown that the DON position was no longer an option for her and that they were offering her three other positions from which to choose. The positions that were offered were the positions of MDS Care Plan Coordinator, PM Charge Nurse or the Health Services Supervisor for the ICFMR. Captain testified that Brown said she hated the ICFMR; that she could not work with those residents. Captain testified that they also discussed the other two positions but she did not remember Brown's responses about those positions. Brown got up and left the meeting before Captain had gone through everything she wanted to get through at that meeting. (1)
18. Brown never returned to Captain's office on May 20, nor did she call or send Captain an e-mail. On May 20, Rank and Captain prepared a letter and gave it to Diederich to give to Brown. The letter reads as follows:
As we were unable to complete the meeting today, due to your leaving before it was finished, I thought I would provide the information that was to be included in the balance of the meeting.
My hope was that you would see a change in position as an opportunity to minimize the personnel responsibilities and focus on your excellent clinical abilities. I do realize that these conversations are difficult and that perhaps first instinct is to react as you did. But, my goal was for you to understand opportunities that would free you from the stressors of your current role and allow you to maintain employment in another role. Your acknowledgement of the same feelings of "burn-out" in your role reinforces the need for change in position within the facility.
I was (and did) offer you other positions within the facility. Unfortunately, you left prior to my next sentence, which was to offer you the balance of the week off with pay. My hope would have been that this time would have allowed you to discern a plan, so to say, regarding continued employment at Maple Lane. I have stated often that you are an asset clinically and continue to believe that your skills would benefit the facility.
As there is often trepidation regarding the thoughts of others when one steps down from a higher level position, the announcement of your change would have been provided by you to the staff in your own terms.
Pat, I need to reiterate you were not terminated from your employment with Maple Lane. At this time, it appears that you have abandoned your position by walking out of the facility today. If this is not accurate, you need to inform me immediately of what your intentions are regarding the previously stated offers of other positions within the facility or provide your resignation. Please contact me personally by 10am (sic) on Wednesday, May 21, to bring about closure.
Exh. C#11 (emphasis added).
19. Captain received the following e-mail response from Brown at 7:46 a.m. on May 21, 2003:
I did not abandon my position yesterday. I threw up.
I left the facility at 3 pm.
I will gladly accept your offer of the rest of the week off with pay. I will give serious consideration to your offer of alternative positions in th (sic) facility. At this time I am not resigning my position as Director of Nursing.
Thank-you.Exh. C#12.
20. Captain responded by e-mail to Brown's e-mail later that morning at 11:05. Captain's e-mail reads as follows:
I acknowledge receipt of your e-mail correspondence to me; however, we consider your leaving the facility yesterday as a voluntary quit. Pat, you had every opportunity to return to the facility or call me to continue the conversation regarding your employment. Unfortunately, both opportunities where a meeting was attenpted (sic) to discuss performance concerns, you left my office minutes into the meeting. You left the 2 pm meeting yesterday at 2:05 pm and walked out of the entrance of the facility with your bag in hand. This type of behavior reinforces the concern regarding your ability to appropriately manage other people.
However, I am still very willing to work with you in relation to the other positions we discussed. The DON position is no longer an option.There is heightened concern over your ability to communicate, manage and act professionally in light of the fact that you walked out of the middle of our meeting yesterday. Your reaction yesterday only substantiated management skill issues that I have been trying to work on with you, as did others previous to me.
Pat, I really hope you consider the employment options I have offered you. Again, your clinical skills are exceptional. However, if you do not accept any of these options, your voluntary quit will be considered May 20, 2003.
Please contact me verbally by 4 pm on Thursday 5/22, with your decision. You need to contact me personally, email is not an acceptable way for us to communicate at this time.
Pat, I don't want to put the staff or yourself in an awkward position. During this time of decisionmaking, please do not access the Maple Lane building.
Exh. R#1 (emphasis added).
21. Shortly before 2 p.m. on May 22, 2003, Captain sent an e-mail to the Maple Lane staff stating, "Pat is no longer an employee of Maple Lane. I will be covering Pat's responsibilities until an interim Director is appointed." Captain sent this e-mail to the staff prior to the 4 p.m. deadline because Brown had called and stated that she was not going to accept any of the other positions.
Based upon the above FINDINGS OF FACT, the commission makes the following:
1. The respondent is a health care facility within the meaning of the Health Care Worker Protection Act, Wis. Stat. § 146.997.
2. The complainant was an employee entitled to the protections afforded under the Health Care Worker Protection Act.
3. The complainant has failed to prove by a preponderance of the evidence that the respondent violated the Health Care Worker Protection Act by taking disciplinary action against her because she engaged in an activity protected by the Health Care Worker Protection Act.
Based upon the above FINDINGS OF FACT and CONCLUSIONS OF LAW, the commission therefore issues the following:
The administrative law judge's decision issued in this matter is reversed and the complainant's complaint is dismissed.
Dated and mailed June 20, 2008
brownpa . rrr : 125 : 9
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
Wisconsin's Health Care Worker Protection Act (HCWPA), Wis. Stat. § 146.997 provides, in relevant part, that:
Any employee of a health care facility...who is aware of any information...that would lead a reasonable person to believe...
1. That the health care facility...or any employee of the health care facility...has violated any state law or rule or federal law or regulation
[or]2. That there exists any situation in which the quality of any health care service provided by the health care facility...or by any employee of the health care facility...violates any standard established by any state law or rule or federal regulation...and poses a potential risk to public health or safety
may report that information to any agency, as defined in s. 111.32(6)(a), of the state...to any officer or director of the health care facility...or to any employee of the health care facility...who is in a supervisory capacity or in a position to take corrective action.
Wis. Stat. § 146.997(2)(a).
Further, Wis. Stat. § 146.997(3)(a) provides, in relevant part, that "No health care facility...and no employee of a health care facility...may take disciplinary action against, or threaten to take disciplinary action against, any person because the person reported in good faith any information under sub. (2)(a)...or because the health care facility...or employee believes that the person reported in good faith any information under sub. (2)(a)..."
Also, Wis. Stat. § 146.997(3)(c) provides, in part, as follows: "For purposes of pars....(a)...an employee is not acting in good faith if the employee reports any information under sub. (2)(a) that the employee knows or should know is false or misleading..."
Finally, Wis. Stat. § 146.997(4)(a) provides, in relevant part, as follows: "Any employee of a health care facility...who is subjected to disciplinary action, or who is threatened with disciplinary action, in violation of sub. (3) may file a complaint with the department under s. 106.54(6). If the department finds that a violation of sub. (3) has been committed, the department may take such action under s. 111.39 as will effectuate the purpose of this section.
Patricia Brown alleges that respondent Maple Lane Health Care Center's administrator, Debra Captain, took disciplinary action against her (removed her from the position of Director of Nursing and terminated her employment) because she reported to Captain various incidents at respondent that violated state and/or federal laws and regulations and/or that violated quality of health care service standards established by state and/or federal laws or regulations.
Brown cites numerous incidents of alleged violations of law or quality of health care service standards that she reported to Captain as the basis for her claim under Wis. Stat. § 146.997. However, for a number of reasons, the commission finds that the evidence fails to support Brown's claim that Captain retaliated against her for reporting alleged violations of law or quality of health care service standards by removing her from the DON position and terminating her employment.
First of all, it is highly doubtful that some of the incidents alleged by Brown would have led a reasonable person to believe that the respondent had violated any law or standard of care. For example, Brown alleges that "in 2003" she reported to Captain that 3 CNAs abused a resident by physically dragging a disabled resident down the hall and bruising the resident's upper arm. First of all, Captain testified that she learned of this incident from a report, not from Brown. In any case, assuming that Captain did learn of this from Brown, this is not a situation that would have led a reasonable person to believe that the respondent had violated any law or standard of care. Captain testified that the resident in question was obsessive-compulsive about washing her hands, and that the respondent had a behavior plan for this. Captain testified that staff attempted to redirect the resident away from the sink, the resident went back to the sink, the staff brought her back and the resident started fighting them and then the resident was taken to her room. Captain identified the problem as one where the resident's diagnosis had changed-the diagnosis of dementia had been added-but the QMPR who was responsible for making sure that the behavior plans provided the CNAs information about what to do for a particular resident should certain circumstances arise, had not developed the behavior plans far enough to tell staff what to do. As a result of this incident, Captain provided in-service for the staff and asked Downs, the QMRP, to go through all the behavior plans to ensure that they were adequate and that steps were provided for what the CNAs were to do. Further, Captain testified that she did not discipline Downs because it was a situation where the respondent was going through a learning curve because the respondent had never really dealt with developmentally disabled folks that had Alzheimer's and dementia. More important, though, with respect to this incident, Brown admits to having participated in a management team review, using a flow sheet analysis, to determine if this was a reportable incident to the state and Brown herself admits that the result of this analysis showed that the CNAs did not intend to harm the resident. T. 395-397.
Brown's assertions regarding the incident involving the readmission of the long-term resident is another example. As noted by the respondent, what the HCWPA protects is the reporting of violations of laws, regulations, or standards of care. The statute reads: "Any employee...who is aware of any information...that would lead a reasonable person to believe any of the following [That the health care facility...or any employee of the health care facility] has violated any state law or rule or federal law or regulation...[or][That there exists any situation in which the quality of any health care service provided...violates any standard established...and poses a potential risk to public health or safety.] may report that information...to any...director of the health care facility..." Wis. Stat. § 146.997(2)(a)(emphasis added). As argued by the respondent, "If the patient had been readmitted, Ms. Brown could have argued that since she believed Maple Lane could not appropriately care for the patient, and if the patient was not appropriately cared for, the readmission of the patient may have given rise to a reportable incident under the HCWPA. However, the patient was not readmitted and therefore no potential existed for mistreatment of that patient or a violation of a law, regulation or standard of care. If one were to accept Ms. Brown's position, a hypothetical discussion between a nurse and administrator concerning how to care for a hypothetical patient that does not even exist would be protected. Such a result is a gross mischaracterization of the statute." However, even assuming for purposes of argument that this incident is or should be covered under the statute, the evidence presented in this case provides no reason to believe that Captain retaliated against Brown because of the incident involving the readmission of a resident.
What follows below is a discussion regarding the evidence relating to other incidents not already discussed above that Brown cites as being reported to Captain.
Brown asserts that prior to March 2003 (she guesses it was January 2003) she talked to Rank and expressed concerns about Lori Johnson's performance because it had been reported that Johnson appeared confused. Brown states she told Rank that Johnson was "an accident waiting to happen." Brown states that after speaking to Rank, Captain commented about the fact that she had had a discussion with Rank. However, Captain indicated that there were three issues that arose with Johnson and that the first arose in 2002. Captain testified that one was where Brown brought it to her attention that Johnson had not transcribed a dietary order. Captain testified that Johnson was therefore issued a written discipline. With respect to it being noted that Johnson appeared confused, Captain testified that she brought Johnson to her office and had a discussion. Captain testified that Johnson disclosed that she was taking a diet pill and stated that she was going off it. Captain testified that she was not made aware of any other complaints regarding Johnson from staff after that meeting. Finally, Captain testified that a third issue with Johnson occurred during an emergency situation requiring law enforcement involvement (EM1) on the respondent's dementia unit. Captain testified that Johnson became very impatient with the officers, wondering what the holdup was with respect to whether or not the officers were going to take the patient, and then when moving the patient, Johnson lost her control with the resident, grabbed his arm, and moving the resident out the door too quickly, he tripped. Captain testified that as a result of this incident, she (Captain) disciplined Johnson by suspending her from work for five days. Brown admitted remembering Johnson's suspension for the EM1 incident. T. 394-395.
Brown asserts that around the first part of 2003, apparently meaning January 2003, she brought to Captain's attention that a teenage quadriplegic was having a romantic relationship with a CNA. Brown asserts that her primary concern was that the CNA was spending an inordinate amount of time caring for the male quadriplegic and neglecting her other patients. However, Captain testified that the romantic relationship between the CNA and the quadriplegic occurred some time in 2002, long before May of 2003. Further, Captain testified that because the respondent was uncomfortable about the romantic relationship between the CNA and the patient, and because she wanted to make sure the respondent was doing the right thing, the respondent got the State ombudsman involved and learned that there was no law violation for the CNA to still provide care during this relationship. Brown admits that the Ombudsman may have been involved in that situation. T. 435. Further, Captain testified that the CNA was the quadriplegic's restorative aide and that his restorative program, written by therapy, required that she spend a great deal of time with him. Furthermore, Captain testified that it was Brown's responsibility to insure that staffing was balanced so that all the residents' needs were met.
Brown also asserts she complained to Captain that the respondent's medical director, Dr. Thatcher, was unavailable to the respondent in his role as the physician responsible for attending quality assurance (QA) meetings. T. 366. However, Captain testified that it was she (Captain), when she started with the respondent (November 2000), who had asked Brown what Maple Lane did for quality assurance and that at that time Brown stated that Thatcher did not attend (QA) meetings. Further, Captain testified that there was no implication by Brown that the respondent was violating any law and that she never heard about this matter again. T. 91-93. Brown did not dispute this testimony by Captain.
Brown further asserted that around January 2003, she complained to Captain that Thatcher ripped up a medical necessity for transport statement, thereby refusing to complete paperwork to transfer a patient to a medical appointment. T. 366-367, 400-401. However, Captain testified that there was no regulation involving this and that this was not a matter that involved the respondent's responsibility. T. 94. Furthermore, Captain testified that as the administrator of the respondent, she did not exercise any supervisory control over Dr. Thatcher. T. 205.
Brown asserts that sometime in March 2003 she complained to Captain that LPN Annette Chapman had one instance of absenteeism because she had not renewed her license, and also that Chapman was continually calling in sick, when Chapman was a part time employee without paid time off, absences which either required that Brown cover for Chapman or utilize agency staff. Brown asserts that that resulted in insufficient staffing and a violation of the law. T. 360, 398. Captain agreed that Brown reported to her that Chapman had repeatedly called in without having available sick time, but testified that she showed Brown evidence that the respondent had problems with two nurses calling in sick and stated they needed to treat the issue. T. 76. Moreover, with respect to Chapman, the respondent presented an exhibit at the hearing (Exh. R#2), reflecting the concerns about Chapman. Exhibit R#2 consists of a string of e-mails regarding Chapman. The e-mails began on May 9, 2003, with Sandi Diederich's e-mail to Captain, stating that she (Diederich) had just called Chapman to find out if she was coming in to work. At 8:55 a.m. on (Monday) May 12, 2003, Captain responded by e-mailing Brown and asking where they were in this situation. Brown responded at 11:50 a.m. on May 12, indicating that Chapman's license was okay and that Chapman had worked Friday. Captain then responded to Brown 5 minutes later stating, "I assume you are going to discipline for absenteeism? Her license is one piece of the puzzle. But it was her responsibility to make sure she had it to work." Furthermore, with respect to the adequacy of staffing, Captain indicated that Chapman's absenteeism would have been a problem under the old staffing schedule where they staffed two nurses on PMs, but that when she (Captain) started, they were staffing four nurses on PMs and could have gotten along with three nurses, if they had to. T. 78.
Brown states that sometime after March 2003 she reported to Captain that at 9 a.m. one morning Cindi Hurlburt had signed out all her noon meds, that this was clearly a violation and that Captain responded by asking her if she wanted "to spend a few hours cleaning up after her or did she want to work the floor herself". T. 392. However, Captain states that she does not remember Brown telling her about this. Captain states that what she remembered was a situation where Brown had thought that Hurlburt was not giving out bulk p.r.n. (as needed) medication, and that she just basically told Brown that we needed to go behind Hurlburt, monitor what she was doing and take care of the issues. T. 75. Further, Captain testified that either Brown or someone else had made her aware that Hurlburt was signing off on resident summaries, that there was no documentation completed, yet she was signing off that she had completed it. Captain testified that she had someone correlate the dates Hurlburt had signed off and whether or not there was documentation there. Captain testified that she took disciplinary action against Hurlburt, she believed on July 18, 2003. Captain testified that Hurlburt was again disciplined on July 31 and terminated on August 1, 2003.
Brown asserts that after March 2003 she reported to Captain that two LPNs who worked with CNA Renee Popovich had complained about Popovich being too abrasive or rough with residents on the dementia unit. T. 362-363, 399. Captain did not recall that Popovich was being too rough with dementia patients, and thought the matter involved residents on the 300 unit, not the dementia unit. T. 87-88. Captain testified that it was so long ago, that all she remembered was that Popovich was not interacting well and was too loud with the residents. Captain also could not remember whether or not it was Brown that brought Popovich's conduct to her attention, but stated that it could have been. T. 204. In any case, Captain testified that her response was to tell them to take Popovich off the 300 unit. T. 204. Popovich denied that she had ever been alerted that she was too rough with dementia patients, but she did testify that when she spoke to Captain about why she was no longer working on the unit, that Captain said she had numerous reports that Popovich was rushing the residents, that the employees felt Popovich was hurting the residents by not giving them adequate time to ambulate. T. 577-578. While Captain and Popovich's recollection of this matter differ in some respects, their testimony is consistent in that Captain had responded to the situation by removing Popovich from the unit.
Finally, Brown testified that in May 2003 she learned that a CNA had informed Captain that a resident who had died (on May 12, 2003) had choked to death in the dining room and was concerned because the nurse (Phyllis Suring) should have been present in the dining room per regulations. Captain testified that in a morning meeting the MDS nurse noted that the nurse who did the charting on the resident that aspirated had said that copious amounts of fluids were suctioned from the resident, but you can't have copious amounts of fluid suctioned if the resident hadn't been fed. Captain testified that as part of her investigation she talked to the CNA and learned that she had been feeding the resident. Captain testified that she therefore told Brown that we need to get this cleaned up, you have to have Suring go back in and make a late entry and state what really happened because this is not accurate. T. 199-200. With respect to whether this was to cover up anything, Captain testified that you can't amend charting in a computer system; you make a late entry, but you cannot change the charting. T. 200.
Brown testified at the hearing that in their discussion about the resident who died, Captain's focus was on "directing me to have Phyllis go back and clean up her charting", whereas the focus she presented to Captain was "that the greater issue was the fact that the nurse wasn't present in the dining room and what were we going to do to prevent this from occurring again." T. 350. However, as noted by the respondent, Brown's testimony about having concerns regarding a registered nurse not being in the dining room when the choking occurred was first produced at the hearing. Neither Brown's complaint nor her answers to the respondent's First Set of Written Interrogatories mention anything about a nurse not being present in the dining room when the resident choked. The parties thus disagree as to whether this incident qualifies as a basis for finding the respondent liable for violating Wis. Stat. § 146.997. However, even assuming that Brown did discuss the nurse not being present in the dining room with Captain, the record in this matter fails to show that that discussion had anything to do with Captain's reasons for removing Brown from the position of DON.
The discussion above regarding the various incidents cited by Brown provides a second reason that the evidence fails to establish that Captain retaliated against Brown for reporting alleged violations of law or standard of care incidents. Namely, that when Brown raised various issues with Captain, Captain's response in almost every instance was to investigate and address those issues. As Captain testified, other members of the management team brought standard of care issues to her, that every day there were issues and concerns and that they got taken care of. T. 211-212. (2) Captain's willingness to hear and address standard of care issues brought to her attention strongly suggests that Captain had no reason to harbor any retaliatory animus toward Brown for bringing patient care issues to her attention.
Moreover, several witnesses agreed that they were not ever aware that Captain had discouraged staff members from bringing standard of care issues to her attention. Barbara Hopfensperger testified that she was not ever aware of Captain discouraging staff members from bringing standard of care issues to her attention; that Captain's view toward standard of care issues "was top of the list." T. 500. Karla Downs testified that "absolutely not" had Captain ever discouraged an employee from bringing standard or quality of care issues to her attention, "Just the opposite. Everybody in the building was comfortable coming to her...the housekeepers, the CNAs..." T. 531. Sandy Wolff testified that quality of care and standard of care issues were regularly brought up at management meetings and that Captain never expressed frustration with those issues being brought up. T. 547. Popovich testified that she felt that Captain was "very informative about the resident care and what she expected of us, the CNAs....we have numerous CNA staffing meetings...one thing Deb did not tolerate was any form of verbal or physical abuse upon a resident. T. 580. Moreover, even Brown admits that Captain never did anything to try to limit the discussion on standard of care issues during those morning meetings T. 387.
Third, and perhaps the most convincing evidence that Captain's decision to remove Brown as the DON was due to Brown's poor interpersonal skills and not because of her reporting alleged standard of care issues to Captain, is the fact that not only was Brown's poor interpersonal skills a matter that had been brought to her attention before, but the fact that when Captain returned to work on May 12, 2003, after two days of vacation on May 8 and 9, several staff including Popovich, Wolff, Downs and Hopfensperger all reported to Captain that they had had negative interactions with Brown during Captain's absence, which forced Captain to deal with this problem. Furthermore, Captain testified that when she attempted to go through these issues with Brown on May 12 that Brown "got up and slammed the door and walked out." And while Brown denies having done this, Captain's e-mail to Brown dated May 21, 2003 (Exh. R#1) corroborates Captain's testimony about their meeting on May 12. Specifically, in this e-mail Captain states, "Unfortunately, both opportunities where a meeting was attenpted (sic) to discuss performance concerns, you left my office minutes into the meeting." (Emphasis added.) Since the subject of Captain's May 21 e-mail was Brown's having left the May 20 meeting early, the only other meeting that Captain could be referring to is the meeting that she held with Brown on May 12, 2003.
Brown asserts that she received positive evaluations, and she points to the evaluation Captain gave her two months before her discharge as supportive of her ability to interact with others. However, Captain's evaluations of Brown are not as positive as she attempts to lead one to believe. In Captain's performance evaluation of Brown after her first full year as administrator, with respect to "Ability to work with fellow employee's (sic)", Captain checked both the box "Meets Expectations" and the box "Needs Improvement". In Brown's next performance evaluation, the one Captain signed March 2, 2003, Captain included the remarks, "Pat continues to grow in her leadership role. Interpersonal skills have improved and have been positively commented upon by subordinate staff." (Emphasis added.) Moreover, Brown's assertion about her evaluations ignores the fact that on May 12, 2003, just slightly more than two months after her March 2003 evaluation, Captain received several reports from staff members regarding the negative interactions that they had encountered with Brown on May 8 and May 9. Furthermore, the evidence indicates that when Captain attempted to discuss these incidents in a meeting with Brown on May 12, Brown got up, slammed the door and walked out.
Brown further asserts that "if her conduct was so serious to warrant discharge, then Ms. Captain, per long-standing policy and practice, would have documented each instance of alleged misconduct on May 8, and again on May 9, and again on May 12." This argument fails. First of all, there is no evidence that Captain wanted to discharge Brown. Second, there is no question but that Brown was lacking in interpersonal skills. Several witnesses, including Captain, Rank, Downs and Hopfensperger all testified about Brown's poor interpersonal skills. Indeed, Rank testified that she felt that the action that Captain took with respect to Brown was appropriate "because over the years, in working with Deb, and I guess even pre-Deb, meaning Cindy Legro, there was, um, concern about Pat's management style..." T. 56-57. In addition, as far as the absence of documentation, Captain's testimony makes clear that it was her friendship with Brown and the importance of the DON position to Captain that were factors here. Captain testified, "This was very, very hard. I didn't want to lose Pat. I - And Pat knows that I considered her a friend, and, um, I think it was -- It's difficult for an administrator to lose their director of nursing. It's very hard." T. 183. Furthermore, when asked to explain why she didn't follow the progressive discipline scheme of providing Brown with a verbal warning, written warning and suspension prior to removing her from the DON position, the following exchange occurred between Captain and respondent's counsel:
A. I guess probably the, the - It's very hard as an admin -- for me being the administrator and having to discipline basically your right arm, and, um, I'm not saying -- And I did do the teaching, and I did talk to her, and I did -- But I didn't do the progressive discipline
Q. And my question was why.
A. Because I guess, and I use this phrase, united we stand, divided we fall.
T. 212-213.
Brown argues that if Captain truly had an issue with her ability to interact with and manage subordinate staff, one would expect Captain to have offered her alternative positions that had absolutely no supervisory responsibilities, but the three positions offered her had lead person, instructional and supervisory responsibilities. While the three alternative positions offered Brown (MDS/Care Plan Coordinator, Health Services Supervisor and PM Charge Nurse) did involve limited lead person, instructional or supervisory authority, the minor supervisory responsibilities associated with these positions pale in comparison to the overall management authority of the position of DON. Indeed, Captain testified that the MDS/Care Plan Coordinator position involved instruction (i.e., teaching), not supervision. T. 142. Brown herself testified that the Health Services Supervisor position would have involved supervision of just 3 CNAs. T. 376. Further, with respect to the PM Charge Nurse position, Captain was not sure that a position description had even been created for that position because the respondent was still looking at recruiting for that position. T. 146. In contrast, as the position description for the DON position states: "The purpose of this position is to supervise and oversee all nursing services..." Further, the first essential duty/responsibility for this position begins as follows: "Supervises the Nursing Department including all licensed staff and staff supervisors, supervises the Inservice Coordinator, orientation, training and in-service programs..." Exh. R#10.
Finally, the commission notes Brown's testimony that when Captain told her the DON position was no longer an option for her and there was a discussion about other jobs that were available to her, her response was to think she "had been here before and these positions aren't really available." Asked to explain what she meant by this, Brown asserted that when Legro was the administrator there was a RN whose performance was substandard and in discussion with Judith Rank "the plan we came up with was that in lieu of termination that we would offer her, um, a position that she wouldn't accept", that "that was an intentional design in the decision...that this person was expected not to accept it." T. 370-372. Further, Brown testified that the MDS/Care Plan Coordinator position was already filled by Jean Gipp, who had taken the position because it allowed her to be home with a teenage daughter she was having problems with. Brown also testified that she didn't accept the Health Services Supervisor position because it would have changed her schedule so that she "wasn't home with my kids in the morning to get them on the bus. It would have included a weekend rotation. I was having child visitation issues at the time." T. 370.
Brown's testimony fails. First of all, Captain's May 20, 2003 letter (Exh. C#11) and May 21, 2003 e-mail (Exh. R#1) makes it perfectly clear that Captain had offered Brown possible alternative positions with absolute sincerity. In both pieces of correspondence, Captain references Brown's superior clinical skills. In the letter Captain writes, "I have stated often that you are an asset clinically and continue to believe that your skills would benefit the facility." In the e-mail, despite Brown having walked out of the meeting on May 20 Captain writes, "However, I am still very willing to work with you in relation to the other positions we discussed....Pat, I really hope you consider the employment options I have offered you. Again, your clinical skills are exceptional." Second, with respect to the MDS/Care Plan Coordinator position, Captain testified that this position was in a period of transition; that the MDS Coordinator had quit and that Gipp, who had held the position of Health Services Supervisor, was in training for the MDS Coordinator position. Captain testified, however, that she had the ability to tell Gipp that she was going back to the Health Services Supervisor position; that things had changed. T. 144-145. Third, given the problem of Brown's poor interpersonal skills, the respondent made a legitimate and valid business decision to remove Brown from her position as the DON. While Brown has referenced her personal circumstances, or her concern about the personal circumstances of Gipp, as reason for not accepting the MDS/Care Plan Coordinator or the Health Services Supervisor positions, this does not constitute evidence that the respondent's offer of other job possibilities was insincere. Indeed, there is no evidence that Brown had even made these concerns known to Captain when she refused to accept them. Furthermore, Brown has not asserted why she refused to accept the PM Charge nurse position.
The respondent did not terminate Brown's employment; Brown voluntarily terminated her employment relationship with the respondent when she refused to accept an assignment to other available positions at the respondent.
NOTE: In the commission's credibility conference discussion with the ALJ, the ALJ stated that he found Brown to be very credible, although he imparted nothing specifically about her demeanor as support for his belief about her credibility. The commission does not agree with the ALJ's assessment of Brown's credibility. Among other things, the commission finds it significant that: while Brown testified that she confronted Wolff about a resident's food in the hall in front of the kitchen, she admitted that in her complaint she stated that she "saw the dietary manager in the main dining room and explained the problem"; Brown conceded she made the comment about whether she was needed "to go in [the kitchen] and ream some ass myself"; Brown admitted she made this comment loud enough or where other people heard her; and that even Brown admitted that Captain never did anything to try to limit the discussion on standard of care issues during the morning management meetings. Moreover, the ALJ himself characterized Brown as "very aggressively acting on things" she felt should be addressed, which is consistent with the respondent's contention that it was the manner in which she addressed these concerns, i.e., Brown's poor interpersonal skills, that caused the respondent to take the action it did against Brown. Furthermore, the commission finds it particularly significant that while Brown denied walking out of the meeting with Captain on May 12, 2003, Captain's e-mail sent to Brown on May 21, 2003 supports Captain's testimony that Brown had walked out of that meeting, and that this very conduct by Brown further supported Captain's concerns about Brown's ability to appropriately manage other people.
With respect to Captain, the ALJ stated that it seemed like she was not really answering questions directly, that she had something she wanted to get across and that was it. It was also his impression that she was "holding back". As to the ALJ's first concern, the commission sees this as nothing more than what occurs in the testimony of many witnesses that have been called adversely-they want to provide a response that is broader than the question asked because they see the question as requiring a more detailed response to provide a complete explanation. As for the ALJ's second expressed concern, the commission finds no support in the record for his belief that Captain was "holding back" anything when testifying.
Finally, the ALJ imparted nothing about the demeanor of Downs or Wolff (or any other witness) that would cause the commission to question their testimony.
For these stated reasons and other reasons set forth above in the commission's decision and memorandum opinion, the commission has reversed the decision of the administrative law judge.
cc:
Attorney Peter J. Culp
Attorney Andrew T. Phillips
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