JANE POWELL, Complainant
COLUMBIA ST MARY'S HOSPITAL, Respondent
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.
The decision of the administrative law judge (copy attached) is affirmed.
Dated and mailed August 19, 2008
powelja . rsd : 125 : 9
James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
Jane Powell petitions for commission review of the ALJ's decision, which held that Powell failed to prove that there is probable cause to believe the respondent Columbia St. Mary's Hospital violated the Wisconsin Fair Employment Act by discriminating against her in her terms and conditions of employment and termination of employment because of her age.
Powell began employment with Columbia Hospital in June 1992. Powell worked in the medical staff services department as a medical staff services specialist. Her date of birth is December 1, 1948. In June 2001, Virginia Klingman, who began employment at Columbia in 1996 and worked as a support specialist/receptionist, became the manager of the medical services department. Klingman's date of birth is December 7, 1946.
Besides Powell, there were three other employees that worked in her department: Sue Walczak, an education coordinator; Larry Flemming, a credentialing coordinator; and an individual named Angela, also a credentialing coordinator. Powell believed Walczak to be about age 63, Flemming to be about age 40 and Angela to be about age 25.
Sometime after Klingman's hire, Columbia Hospital, St. Mary's Milwaukee Hospital and St. Mary's Ozaukee Hospital began the process of merging. As a result, the staff of the three hospital campuses had to examine their processes and procedures and standardize them for the eventual merger so they would be able to work together. Further, during 2004 the respondent was in the process of building a new hospital that was to eventually combine the Columbia and St. Mary's Milwaukee campuses into one facility. By the time of Powell's termination of employment on November 17, 2004, the three hospitals had already become collectively known as Columbia St. Mary's Hospital.
Janel Thompson was a human resources employee for the respondent at the time relevant herein. Jo Ann Hankwitz is the respondent's director of employee relations.
On appeal from the ALJ's decision, Powell argues that the respondent failed to produce a variety of information in response to her discovery request for the production of documents. This included a request for a list of the names of the Columbia campus employees who left the respondent's employment from January 2002 to December 2006, the reason for their leaving, their age, whether they were vested in the pension plan or participated in a 401K or 403K plan with matching funding by the respondent, a request for various respondent policies and procedures and a request for information regarding Klingman's performance reviews and supervisory training. The respondent objected to Powell's request regarding employees who left the respondent from January 2002 to December 2006 as irrelevant since the earliest date Powell's complaint alleged discriminatory treatment took place was on November 1, 2004, and the latest date was on November 17, 2004, when she was terminated, and on the grounds that this request was overbroad, unduly burdensome and not reasonably calculated to lead to the production of "relevant information." (1) With respect to respondent policies and procedures, the respondent stated that Powell already had one of the policies, that two other policies were included in its witness and exhibit list that Powell had picked up and objected to the remaining requested policies and procedures as irrelevant, overbroad, unduly burdensome and not reasonably calculated to lead to the production of admissible evidence. The respondent objected to the requested information regarding Klingman as irrelevant, overbroad, unduly burdensome and not reasonably calculated to lead to the production of admissible evidence.
The record fails to show reason for the commission to consider Powell's argument regarding the respondent's failure to produce information in response to her discovery request. First of all, although the Equal Rights Division had sent a notice of hearing on Powell's discrimination complaint to the parties on December 5, 2006, scheduling March 22, 2007 as the date for the hearing and including with this notice information regarding pre-hearing discovery, Powell waited until February 19, 2007, before serving the respondent with her discovery request. The ERD's administrative rules, Wisconsin Administrative Code § DWD 218.14(3) provide that the methods of discovery shall be the same as set forth in ch. 804, Stats. Pursuant to Wis. Stat. § 804.09(2), the respondent had 30 days in which to respond to this discovery request, i.e., March 21, 2007, but the respondent responded to Powell's discovery request by letter dated March 15, 2007, which was seven days prior to the hearing. Second, in instances where disputes arise between parties and a party wants to compel the other party to comply with the requested discovery, the ERD's rules require that "All motions to compel discovery...shall be accompanied by a statement in writing by the party making the motion that, after consultation in person or by telephone with the opposing party and sincere attempts to resolve their differences, the parties are unable to reach agreement." Wis. Admin. Code § DWD 218.14(4). Powell first requested a motion to compel the respondent to comply with her discovery request at the March 22, 2007 hearing. The ALJ properly refused to consider Powell's motion to compel because Powell was late in making her discovery request, she had first raised the issue of the respondent's failure to comply with her discovery request at the hearing and she had not complied with Wis. Admin. Code § 218.14(4).
Powell argues that Klingman treated her differently than other employees by: insisting she arrange her desk exactly like Klingman's; eliminating all her workspace, worktables and giving her a small work station; insisting that she hang a huge board over her desk to write on to remind her to send out meeting notices as she had neglected to send those out while on vacation; insisting that she use eight big boxes to put her work in; celebrating their birthdays with cake and cards and neglecting to acknowledge hers; insisting that she post a minute-by-minute schedule on a shared computer site so Klingman could watch her check off the projects as she did them; insisting that she type out a daily log of telephone calls when she asked for a quiet afternoon without phones so she could finish all her filing and clear her desk as requested; and insisting that she reorganize ten years worth of minutes in a form Klingman invented that did not mirror what had been determined to be the method that all campuses were to follow.
It appears, however, that the gist of Powell's assertion is that Klingman was incompetent and vindictive. For instance, Powell has asserted, "In summary, Ms. Klingman is a bully and nothing I could ever do would please her. She changed her mind continuously, blamed me for things she did not know, told others I was an idiot, (sic) punished me for taking a vacation when she made the decision to not get a temp..." Further, Powell asserts that the respondent erred in not training its HR staff to recognize a common problem in the workplace, "harassment/bullying", and erred in not investigating charges of cruelty and harassment by Klingman as specified by the respondent's harassment policy.
Assuming for purposes of argument that Powell's assertions about Klingman's treatment of her are true, the evidence fails to provide reason to believe that such treatment was because of Powell's age. Indeed, Powell indicated as much in the grievance she filed with the respondent following her termination of employment. There Powell asserted:
...As the merger of the Milwaukee and Columbia medical staffs progressed, Ms. Klingman was expected to contribute more and more to the planning and reorganization of the restructuring. Coupled with the upcoming JCAHO visit, physician elections, formation of several more executive committees, and talk of eliminating a manager, she became more snappy and irritable. I believe she began to look for a target to vent her frustrations on. Since one of our employees is a large man, with a Marine background, he was eliminated, that left three women, one younger, another older, and then me. I was chosen because I am known as an intelligent, logical employee, well respected by fellow employees from all departments, and willing to help others out with problems, computer or otherwise. I learn any new task quickly, am fascinated with how various systems work, and find it very easy to see the big picture. For whatever her reason, I became the target for her frustration and harassment.
(Emphasis added.)
Furthermore, Powell's assertions regarding Klingman's alleged treatment of her ignores any responsibility on her part for such treatment. For example, on September 22, 2004, when Klingman sent an e-mail to Powell requesting a short meeting with her to discuss minute organization, Powell's response was, "Sorry, Gini, no can do" because of all the work she had to do. Then, after Klingman sent an e-mail to Powell on September 23, 2004 stating that they needed to meet and that Powell did not have the option of saying "no", Powell responded the next day by sending Klingman a three and a half page e-mail that began, "Please take the time to read this in its entirety because I think it is important that we clarify a few things regarding your email" and then made numerous comments that were critical of Klingman's performance while reflecting favorably on her own performance and capabilities. At this point, Powell was required to attend a meeting on September 27, 2004, with Klingman and Janel Thompson, the purpose of which was to discuss and resolve issues that included Powell's need to respond to requests for meetings, to respond to Klingman's request for organization of Powell's desk and to show respect for Klingman. Klingman sent an e-mail to Powell on September 30, 2004, as a follow-up to the September 27 meeting summarizing what Powell was to do. However, in response, Powell then sent an e-mail to Klingman on October 1, 2004, that began, "I hope that the lession (sic) learned is that everyone has to talk difficulties thru more than once a year during a review." Further, in this e-mail Powell essentially blamed Klingman for their work backlogs, did not acknowledge any shortcomings of her own, and basically assigned a task for Klingman to complete, along with strong suggestions to Klingman as to what should be accomplished first with respect to their work backlogs and other work projects.
Further, whether or not the HR staff responded appropriately to Powell's claim about the treatment she received from Klingman, Powell gave no reason for HR staff to suspect that she was being treated differently because of her age. Powell admits that when she spoke to HR employee Thompson about Klingman's treatment of her that she did not tell Thompson she thought Klingman was harassing or discriminating against her because of her age, she just said that she was being bullied in the methods that were being used by Klingman to supervise her. Powell admits that Thompson asked that she meet with Klingman to work out their problems.
Powell argues that Klingman produced "many undated, unsigned documents which [Klingman] submitted as part of my performance review that I had never seen and were never part of my records or I would have had a copy." Apparently, Powell is referring to her July 2004 performance review. The only document identified at the hearing as being associated with Powell's July 2004 performance review is Exhibit 18. However, there is no reason to believe that this document was something that Powell should have seen or received a copy of. Klingman testified that she wrote this document just to remind her (Klingman) of what had been discussed with Powell.
Powell also argues that the respondent did not document any meeting to discuss her behavior, transgressions, performance or Klingman's behavior; that her performance reviews for her twelve years of employment were "flawless" and that she was fired without any supporting documentation. However, the evidence shows that the cause for Powell's termination was her failure to maintain a respectful attitude toward Klingman, as evidenced by her September and October 2004 e-mails to Klingman (Exhs. 6, 7 and 9), followed by her refusal to accept a performance improvement plan (also referred to as a learning contract) that was developed to improve her performance (Exh. 13). Further, while Powell asserts that Exhibit 13 was not the performance improvement plan that was presented to her, and denies having thrown the performance plan on Klingman's desk the next day, Klingman asserts that Exhibit 13 was the document that was presented to Powell and that the next day Powell threw the document on her desk unsigned. The ALJ found Klingman's testimony to be more credible and there is no compelling reason in the testimony or elsewhere in the record to question the ALJ's credibility determination.
Powell also apparently argues that Jo Ann Hankwitz indicated that the decision to fire her was based solely on "Klingman's story I became violent toward her." Hankwitz indicated no such thing. Hankwitz testified that she understood the reasons for Powell's termination were that Powell dismissed a performance improvement plan to assist her to succeed in her position and was not cooperating with Klingman to address the concerns that Klingman "put on the table."
Powell argues that "CSM has allowed fake malicious documents from Ms. Klingman to be admitted as fact" (apparently referencing her claim that with respect to the information supplied by the respondent in response to her discovery request) and that these documents had been compiled by Klingman and were "altered to cast Ms. Klingman in a better light." However, there is nothing about the documents themselves, or anything else in the record, which suggests that they are not genuine.
Powell also argues that the respondent did not follow its policies and procedures in the disciplinary action taken against her. Powell does not assert what specific policies and procedures the respondent failed to follow. In any case, Hankwitz testified that learning contracts are issued to employees when there are patterns of concern regarding such matters as the employee's performance, competency, meeting deadlines and follow-through, and that if an employee simply refused to sign the learning contract the respondent would conclude that that person wasn't interested in continuing their employment.
Powell claims that at least twice after management meetings during the summer of 2004 that Klingman would just walk in and ask what her retirement plans were. Powell states that Walczak would also be present when she was asked this but asserts that Walczak was not asked about her retirement plans. Further, Powell asserts that she saw older workers eliminated before she was fired, and apparently that she knew about it happening after she was fired, always with the excuse that these people lacked ability to do their jobs, jobs that had been performed well for many years. She asserts that it is of no coincidence that by getting rid of a long time good employee (i.e., her) that the respondent saved the higher salary and the benefits (including a 100% funded pension plan) that are no longer offered to new employees, and that too many of my friends and colleagues were ousted for "poor performance" for it to be a coincidence.
Klingman admits to asking about retirement plans, but testified that these were very informal conversations with both Powel and Walczak in which she inquired "What are we going to do, are we going to stay after the new hospital is built, who's going to retire, what are we thinking about doing." Klingman denied that there was any mandate given to weed out older highly paid individuals. Hankwitz also denied that there was ever any campaign to weed out the older employees at the respondent. Powell had no evidence to show otherwise because she waited too late to secure information from the respondent regarding employees who had left the respondent's employ, and because she appeared at the hearing without any witnesses to support her assertion about the elimination of older workers.
Finally, Powell asserts that the hearing record shows that Klingman and the respondent's counsel [Lawrence Lynch] were "disrespectful" to her because they "had to be reminded numerous times to address me in a courteous manner", that "numerous times, also on the record, that Lynch fed Klingman answers, for which he was reprimanded" and further that "Lynch was reprimanded for demanding the case be dismissed before the judge could examine the evidence." Powell misstates the hearing record. During Klingman's examination counsel and Klingman referred to Powell as "Jane" or "she" and the ALJ simply wanted them to use Powell's last name so the record was clear as to who they were talking about. The ALJ did admonish counsel twice for leading the witness. However, the ALJ obviously did not find that these two instances provided sufficient reason to discount Klingman's testimony. Further, considering the evidence presented at the hearing, there is no reason to believe that the ALJ should have reached a different result in this matter. Finally, counsel did not "demand" that Powell's case be dismissed, nor was he reprimanded by the ALJ. Counsel merely moved for a dismissal of Powell's complaint after Powell rested her case. This was an entirely proper motion by counsel. In response, the ALJ simply ruled that she would not entertain that motion at that time because she had not had a chance to read all of the exhibits presented in order to make a decision on counsel's motion.
cc: Attorney Lawrence T. Lynch
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