INGEBURG DIETERICH, Complainant
LINDENGROVE, INC., Respondent
In a complaint filed with the Equal Rights Division on September 14, 2005, complainant Ingeburg Dieterich ("Dieterich") alleged that respondent LindenGrove Inc. ("LindenGrove") had terminated her employment on April 15, 2005 and that this termination had violated the Health Care Workers Protection Act, Wis. Stat. § 146.997.
In an Initial Determination issued on May 23, 2006, an investigator for the Equal Rights Division concluded that there was probable cause to believe that LindenGrove had violated the Health Care Worker Protection Act, Wis. Stat. § 146.997, by taking disciplinary action or threatening to take disciplinary action against Dieterich because she in good faith reported, or was believed to have reported, information under Wis. Stat. § 146.997(2)(d). The investigator also concluded that there was probable cause to believe that LindenGrove had violated Wis. Stat. § 50.07(1)(e) by intentionally discharging or otherwise retaliating or discriminating against Dieterich because she contacted or provided information to any state official, including any representative, of the office of the long-term care ombudsman.
The matter came on for hearing on November 14, 2006 before administrative law judge John Grandberry. After Dieterich rested her case on that day, LindenGrove moved to dismiss the complaint. After hearing oral argument on the motion, ALJ Grandberry granted the motion to dismiss, stating that he did so "believing that the Complainant had failed to meet the burden of proof establishing a prima facie case," and indicating that he would issue a written decision to that effect.
ALJ Grandberry issued his written decision dismissing the complaint, on November 30, 2007. A memorandum decision accompanying the decision explained that he was dismissing the complaint because he concluded that Dieterich had failed to establish that the reasons outlined by LindenGrove for her termination were a pretext.
Dieterich filed a petition for review by the Labor and Industry Review Commission of ALJ Grandberry's November 30, 2007 decision.
On December 29, 2008, the commission issued a decision which set aside the November 30, 2007 decision of ALJ Grandberry and remanded the matter to the Division for further hearing, to be held before a different administrative law judge, and a new decision, to be based on the record made at the November 14, 2006 hearing as well as the record made at the further hearing being ordered.
Further hearing was held as ordered on March 31, 2009 before administrative law judge James A. Schacht.
On August 28, 2009, ALJ Schacht issued a decision dismissing the complaint.
Dieterich filed a petition for review by the Labor and Industry Review Commission of ALJ Schacht's August 28, 2009 decision.
The commission has considered the petition and the briefs of the parties, and it has reviewed the evidence submitted at the hearings held in this matter. Based on its review, the commission now makes the following:
1. LindenGrove, Inc. ("LindenGrove") is a skilled nursing facility with four different units that houses about 135 residents, most of whom are long term residents. At the times material herein, in 2005, Jodi Bloom and Ellen Herwehe were Registered Nurses employed as night shift supervisors for LindenGrove, Patricia Boyle was the Registered Nurse manager, Margaret ("Marge") Weiler was the Assistant Director of Nursing, Patty Zerwinski was the Director of Nursing, and Cindy Benson was the Director of Quality Improvement.
2. Ingeburg Dieterich ("Dieterich") is a Licensed Practical Nurse who was hired by LindenGrove in July, 2000. She initially worked on the acute care floor, and then in 2004 she switched to working in the Alzheimers unit. At the times material hereto, Dieterich normally worked third shift, from 10:45 P.M. to 6:45 A.M.
3. LindenGrove had a written Policies and Procedures standard governing the process to be followed in investigation of unusual occurrences. This standard provided, among other things, that the use of an "Investigative Process Data Collection" form was to be initiated in the case of any unusual occurrence. This form consisted of two pages, the first of which bore the heading
(the "Investigative Process Data Collection" page), and the second of which bore the heading
(the "QA Data Verification" page). This two-page form was referred to at LindenGrove as an "Incident Report," and that term will be used for it herein.
4. The LindenGrove Policies and Procedures governing the process to be followed in investigation of unusual occurrences provided, in relevant part, that the first ("Investigative Process Data Collection") page of the Incident Report was to be used to report all pertinent objective information about the incident, including the "who, what, when, where, how," and should not be used to record subjective information. The objective information to be reported on this page of the form was to include actual statements made by residents and witnesses. LindenGrove's policies and procedures specifically noted that the information on "Contributing Factors" to be reported on this page of the form must be completed using objective information only.
5. The LindenGrove Policies and Procedures governing the process to be followed in investigation of unusual occurrences provided, in relevant part, that the second ("QA Data Verification") page of the Incident Report was to be used to, among other things, describe how and why the incident occurred, and it specifically noted that in this regard, "[a] description of incident which may include subjective information is documented."
6. Employees of LindenGrove, including Dieterich, were provided extensive training in the policies and procedures governing the process to be followed in investigation of unusual occurrences, including the distinction between the types of information to be entered on the first ( "Investigative Process Data Collection") and the second ("QA Data Verification") pages of the Incident Report.
7. At all times material herein, the practice followed with respect to maintenance and retention of the two-page Incident Report forms at LindenGrove, was that the two pages (i.e., the "Investigative Process Data Collection" page and the "QA Data Verification" page) were stapled together, that the two stapled-together pages were then kept together in that form and were never separated, and that they were retained at LindenGrove, in the office of the Assistant Director of Nursing, arranged by date in three-ring binders. The reports were not routinely sent to any state agency, but when representatives of the Bureau of Quality Assurance of the Wisconsin Department of Health and Family Services made their periodic inspection visits or special visits to follow up on complaints, they would sometimes ask to see some of the forms, either requesting specific reports or simply asking to see a random selection, and they would be provided access to the forms in the state in which they were being maintained at LindenGrove, that is, with both pages attached.
8. Early on the morning of March 17, 2005, there was a brief interaction between Dieterich, shift supervisor Jodi Bloom, and a medical technician named Denise, having to do with whether certain residents were going to be given insulin and by whom. At some time shortly after this "insulin" incident, the medical technician who was involved went to Director of Nursing Patty Zerwinski and expressed concerns that Dieterich and Bloom had (in her view) inappropriately declined to give her assistance. On that same day Zerwinski called Dieterich on the phone and asked her to give her a written statement about the facts of what occurred.
9. In response to Zerwinski's request that Dieterich give her a written statement about the facts of what occurred in the "insulin" incident, Dieterich eventually completed and submitted to Zerwinski a statement regarding that incident. She did this some time on the morning of March 24, 2005, before the end of her shift. This statement was on a LindenGrove "Investigation Report" form, which was different from the two-page Incident Report form described above. In this report, after describing her version of what had actually transpired in the incident, Dieterich wrote:
If Denise expected either of us to give the insulin @0650, I believe it would have been WAY out of the 30 min. time seat before breakfast - Also are not blood sugars supposed to be taken @0700 or 0730 Just what is this all about? Perhaps a little retaliatory effort on her part because I let you know what Mary B. said to Jodi and to Chris F? As you probably already know me, I won't tolerate this. I trust you to settle the matter.
10. Later on the morning of March 24, 2005, after reviewing the statement from Dieterich about the "insulin" incident, Zerwinski (who worked days) contacted Dieterich (whose shift had ended by that point) by phone, and asked her to re-write the statement to omit the part of it quoted above in Finding of Fact 9, because it was, in Zerwinski's view, opinion which was not necessary. Dieterich refused to rewrite the report. Zerwinski then modified Dieterich's report by crossing out the part she objected to and writing a note at the bottom memorializing the fact that she had discussed the report with Dieterich and told her that the highlighted part of the statement was not necessary as it was opinion, and that Dieterich had refused to rewrite it.
11. On March 23, 2005, around 3:45 A.M., there was an incident in which a LindenGrove resident was injured when his toe was run over with a wheelchair by a certified nursing assistant ("CNA") named Bridgett (1) . This caused a small (.5 cm) skin tear on the resident's toe. Dieterich was on duty at the time, having started a shift at 10:45 P.M. on the evening of March 22. She learned of that incident, including the fact that the resident had suffered a skin tear, shortly after it occurred, as a result of Bridgett telling her about it.
12. In speaking with Bridgett about the incident, Dieterich observed Bridgett slurring her words, and having trouble keeping her eyes open, and at one point she saw Bridgett's head go back and her eyes roll up into her head. Dietrich decided that Bridgett was under the influence of a drug or intoxicant.
13. Night shift supervisor Bloom was informed of the incident and the injury to the resident's toe shortly after it occurred. Bloom then came to where Bridgett and the resident were, took a look at the resident's toe, and spoke with Bridgett.
14. Bloom was familiar with Bridgett from having worked with her. She thought that Bridgett was very uneducated and not very well-spoken, and she had noted that her articulation was very poor and that she came across as very difficult to understand at times because she did not speak very clearly.
15. Bridgett told Bloom that she had not been paying attention and that she was not feeling well. Bloom then took Bridgett into the supervisor's office to speak to her alone. At that time, Bridgett told Bloom that she was pregnant, had not been keeping food down, and had been vomiting for several days. Bloom believed what Bridgett told her. Bloom told Bridgett that it was difficult to take care of patients when one was not feeling well and that she should go home and take care of herself, and she sent her home. Dieterich was not present at this interaction between Bloom and Bridgett.
16. Sometime on the morning of March 23, 2005, after the injury to the patient's toe and before the end of her shift at 6:45 A.M., Dieterich completed and submitted an Incident Report form regarding the injury to the resident's toe. It was Dieterich's responsibility to complete and submit this form because she had been the nurse on duty when the incident occurred.
17. On the first ("Investigative Process Data Collection") page of the Incident Report form which she completed and submitted on March 23, in the section for reporting "Statement of Patient-Resident and/or Witness" Dieterich entered:
Per CNA "I ran over his foot w the W/C" Per resident "She put the wheel on my foot"
In the section for reporting "Contributing Factor" Dieterich entered:
CNA ill - not paying attention?
In contrast to the manner in which she had entered the information in the section for "Statement of Patient-Resident and/or Witness," Dieterich did not place this last entry in quotation marks.
18. On the second ("QA Data Verification") page of the Incident Report form, in the section for reporting "Describe how / why this happened" Dieterich entered:
CNA - ill, not paying attention?
In the section for reporting "How could this be prevented in the future," Dieterich made no entry.
19. Dieterich signed the first ("Investigative Process Data Collection") page of the Incident Report form in the proper location, but she then also signed on the bottom of the form on the signature line which was where the Resident Nurse Manager (Boyle) was expected to sign the form. Dieterich signed the second ("QA Data Verification") page of the Incident Report form in the proper location.
20. At LindenGrove, an individualized record was routinely maintained for each resident, on a form with the heading "Interdisciplinary Progress Notes". These records were also sometimes referred to as the "chart" or "medical chart", or the "resident's medical record," but most commonly as the "nurse's notes." The nurse's notes were regularly kept on the wall behind each nurse's station. They are distinct from another record routinely maintained at LindenGrove, referred to as the 24 Hour Report Book, which is kept in a log binder at each nursing station.
21. State and federal regulations require nurses to document in the nurse's notes any time there is a change in a patient's condition. Dieterich was aware of this requirement. LindenGrove had a written Policies and Procedures standard governing nurse's notes (in which they are referred to as the "Integrated Progress Notes"). This standard provided, among other things, that whenever appropriate, as the need arose, documentation was required on the nurse's notes of any change of condition to include the problem, observational date, physical findings, the assessment and the plan of care. Dieterich had been trained by LindenGrove to make sure she documented any change in a resident's condition in the nurse's notes, and she understood that was one of LindenGrove's expectations of her. The expectation was that a nurse would document a change in a patient's condition immediately upon becoming aware of it.
22. The skin tear which occurred to the resident's toe when it was run over by a wheelchair on March 23, 2005, was a change in condition of the type required to be documented on the nurse's notes. The injury was particularly significant for that resident because he had diabetes, and individuals with that condition are subject to problems with healing of peripheral injuries. Dieterich should have made an entry on the nurse's notes for the resident, about that incident and the resident's injury, as soon as she found out about it. Failing to make an entry regarding the injury to the patient's toe would be a violation of regulations of the Department of Health and Family Services requiring documentation in a patient's nurse's notes of such matters, and would be contrary to LindenGrove's standards and expectations.
23. Dieterich did not make an entry on the nurse's notes for the resident whose toe was injured, at any time prior to leaving work at the end of her shift on March 23.
24. Later on March 23, after Dieterich had gone home and Boyle was at work, Boyle reviewed the Incident Report Dieterich had left for her. As part of this review, Boyle looked at the nurse's notes for the resident in question. When she did so, she discovered that no entry had been made on the nurse's notes for the resident about the incident or the injury. Boyle then made an entry on the nurse's notes for that resident about the incident and the injury, at 2:10 P.M. on March 23.
25. As part of her review of the Incident Report which Dieterich had submitted, Boyle entered the word "yes," and her initials, in the section on the second ("QA Data Verification") page of the Incident Report form asking, "Was twenty-four (24) hour follow-up and documentation adequate and complete?" When Boyle made this entry, she was thinking that the question referred to the 24 Hour Report Book record (referred to in Finding of Fact 20 above).
26. The March 23 Incident Report form was then reviewed by Assistant Director of Nursing Marge Weiler. When she reviewed the form, she was not clear as to how the injury occurred. Weiler also believed that the entry "CNA ill - not paying attention?" made by Dietrich on the first ("Investigative Process Data Collection of Unusual Occurrence") page of the Incident Report, in the "Contributing Factor" space, was something which should not be placed on the first page of the form, but instead on the second page. Weiler gave the Incident Report form back to Boyle and instructed her to tell Dieterich to rewrite the first page.
27. After this, Weiler relayed a number of requests to Dieterich to re-write the Incident Report, specifically with regard to removing the statement "CNA ill - not paying attention?" on the first ("Investigative Process Data Collection") page. Dieterich was aware of these requests by no later than April 8, 2005.
28. On April 8, 2005, Dieterich responded to Weiler with a note stating, "Sorry, I don't feel comfortable with re-writing the incident report concerning [resident name]'s toe - of March 23, 2005."
29. Later on April 8, 2005, Weiler responded to Dieterich with a note added to the bottom of the page on which Dieterich had written her note of that same date. Weiler's note stated,
It is not appropriate to editorialize on an incident report (1st page) that page should contain facts only. To say that the CNA was ill and not paying attention is only your perception. You write your perceptions/speculations on the 2nd page (Review Investigative Process) per our policy. It is LG's expectation that you follow the policies & procedures therefore the first page needs to be written correctly.
30. On April 10, 2005, Dieterich responded to Weiler with a note added in the middle of the page on which Dieterich and Weiler had written their previous notes of April 8. Weiler's note stated,
I don't know how it could be misconstrued as an editorialization. It's the FACTS - she stated "I am sick - I wasn't paying attention" How could, this be my "perception"? I will state on the contributing factor area that there was an equipment problem - "no foot rests on w/c" - as stated on careplan. Not following careplan. - ALSO - I will call "State" on Monday to seek guidance in this issue - we need clarification of how to complete this form (emphasis in original)
31. April 10, 2005 was a Sunday, so the reference to "Monday" in Dieterich's April 10 note would have been understood as a reference to the following day, Monday, April 11.
32. Also on April 10, Dieterich submitted a revised version of the Incident Report. This revised version differed from the first version in a number of respects. On the first ("Investigative Process Data Collection") page, Dieterich omitted the phrase "CNA ill - not paying attention" and substituted therefor the phrase, "foot pedals not on equipment;" and next to the dates by her two signatures on that page, Dieterich wrote "(rewritten 4/10/05)." On the second ("QA Data Verification") page of the form, Dieterich added the following text to the "Describe how / why this happened" section:
Addition to report - done 4/10 - CNA stated to Jodi Bloom and Inga Dieterich "I am sick, I wasn't paying attention" Resident did not have foot rests on w/c -
33. Weiler received Dieterich's April 10 note, and the revised Incident Report form Dieterich had prepared, on Monday, April 11.
34. When Weiler read the part of Dieterich's note stating "I will call 'State' on Monday..." she understood Dieterich to be referring to the Bureau of Quality Assurance of the Wisconsin Department of Health and Family Services, or to the State Ombudsman.
35. On April 11, Weiler asked Zerwinski to take over handling the matter. Weiler communicated to Zerwinski that there was difficulty in getting Dieterich to complete the Incident Report in the manner in which she was being requested.
36. On the same day, April 11, Zerwinski consulted with Director of Quality Improvement Cindy Benson regarding how to deal with the problems with getting Dieterich to complete the Incident Report in the manner in which she was being requested.
37. At the time she consulted with Benson on April 11, Zerwinski was aware that Dieterich had submitted a rewritten version of the Incident Report she had written regarding the March 23 "toe injury" incident. Zerwinski did not feel that the rewritten version was satisfactory.
38. At the time she consulted with Benson on April 11, Zerwinski was aware of the April 8 note from Dieterich to Weiler referred to in Finding of Fact 28 above, and the April 8 note from Weiler to Dieterich referred to in Finding of Fact 29 above. However, she was not aware of the April 10 note from Dieterich (the note containing the statement, "I will call "State" on Monday...") referred to in Finding of Fact 30 above.
39. At the time she consulted with Benson on April 11, Zerwinski was not aware that Dieterich had failed to make an entry in the nurse's notes regarding the incident involving the injury to the resident's toe.
40. On April 11 , 2005, after consulting with Benson, Zerwinski decided to give Dieterich a "Disciplinary Action Report" disciplinary warning based on Dieterich's refusal to rewrite the "Investigation Report" she had written regarding the March 24 "insulin" incident, and also on her refusal to satisfactorily rewrite the Incident Report she had written regarding the March 23 "toe injury" incident. Zerwinski then wrote up a "Disciplinary Action Report" form describing those two matters and indicating that the disciplinary action being taken was "Final Written Warning."
41. In the "Disciplinary Action Report" warning to Dieterich which Zerwinski wrote up on April 11, Zerwinski made a notation, in response to a section of the warning form which asked if there was a record of any prior disciplinary actions in the employee's files in the preceding 18 months, as to a verbal warning for absenteeism on April 14, 2003 and a written warning for absenteeism on September 8, 2003. However, those matters played no role in her decision to issue the warning to Dieterich.
42. Dieterich's statement in her note of April 10, "I will call 'State' on Monday," was also not a factor in Zerwinski's decision to issue the disciplinary warning to Dieterich, as Zerwinski was not then aware of it.
43. The fact that Dieterich included information in the Incident Report and the re-written Incident Report, indicating that Dieterich believed that a resident had been injured because a LindenGrove employee had been ill and not paying attention, and that such information could thus potentially come to the attention of surveyors for the BQA, was not a factor in Zerwinski's decision to issue a disciplinary warning to Dieterich. Zerwinski's objection to Dieterich's conduct, which was the reason for her decision to discipline Dieterich, was Dieterich's refusal to comply with the policies and practices of LindenGrove concerning which page of the Incident Report form various types of information was reported on. Zerwinski decided to issue the disciplinary warning to Dieterich because she believed that Dieterich's recent actions in refusing to modify the Investigation Report she submitted about the "insulin" incident, and in refusing to satisfactorily modify the Incident Report about the toe injury incident, showed a pattern of failing to cooperate in providing information of the kind, and in the manner, that LindenGrove needed.
44. On April 11, 2005, Zerwinski telephoned Dieterich to ask her to come in for a meeting on April 13, 2005. Zerwinski's intended purpose in having this meeting was to give Dieterich the "Disciplinary Action Report" warning she had written up. Zerwinski arranged to have Weiler present when she made this call, and she placed the call on her speakerphone so that Weiler could hear it. In that telephone conversation, Dieterich did not say either that she planned to go to, or that she had gone to, "State."
45. After Zerwinski contacted Dieterich by telephone to arrange for her to come in for a meeting on April 13, 2005, she still wanted to learn more about the circumstances in which the resident's toe was injured because she did not feel that either the original Incident Report prepared by Dieterich, or the rewritten version which had been submitted by Dieterich, satisfactorily described those circumstances. For this reason, Zerwinski looked at the nurse's notes for the resident in order to find out more about the incident. When she did so, she discovered that Dieterich had not made any entry in the nurse's notes regarding the incident and the injury to the resident's toe. Zerwinski had not been aware, prior to this time, that Dieterich had failed to make such an entry.
46. Zerwinski viewed Dieterich's failure to make any entry in the nurse's notes regarding the incident and the injury to the resident's toe, as a serious omission. Zerwinski viewed it as a offense for which discharge was appropriate even absent a history of other discipline. She again consulted with Benson as to her views, and Benson agreed.
47. After consulting with Benson, Zerwinski decided to terminate the employment of Dieterich because of Dieterich's failure to make any entry in the nurse's notes regarding the incident and the injury to the resident's toe.
48. At the time that she arrived at the decision to discharge Dieterich, Zerwinski was aware that on a few other occasions in the past, Dieterich had stated that she was going to contact State to clarify policies and procedures LG had in place, but she did not know if Dieterich had in fact done so on those other past occasions. There had been no complaint investigations or complaint surveys after those past occasions.
49. By the time the she arrived at her decision on April 12, 2005 to discharge Dieterich, Zerwinski had become aware by way of information provided to her by Weiler that Dieterich had raised, in her April 10 note, the possibility that she would contact the State about the way LG wanted Incident Reports completed. However, Zerwinski did not know if Dieterich had in fact done so, and she had no particular belief that Dieterich had in fact done so. If anything, Zerwinski's awareness of past occasions on which Dieterich had said she was going to contact State after which nothing had occurred to indicate that Dieterich had actually contacted State as she had said she would, led Zerwinski to tend to discount statements by Dieterich that she was going to contact State.
50. After arriving at her decision on April 12, 2005 to discharge Dieterich, Zerwinski wrote up a "Disciplinary Action Report" form describing the matter of Dieterich failing to document the resident's skin tear and indicating that the disciplinary action being taken was "Discharge from Employment."
51. On April 13, 2005, Dieterich attended the meeting which Zerwinski had called her on April 11 to schedule. At that meeting, Zerwinski, with Weiler present, gave and read to Dieterich the "Disciplinary Action Report" dated April 11 involving Dieterich's refusals to rewrite documents, and also the "Disciplinary Action Report" dated April 12 involving Dieterich's failure to document the resident's skin tear, and she informed Dieterich that she was being discharged.
52. At some point, Dieterich contacted the Bureau of Quality Assurance of the Wisconsin Department of Health and Family Services by e-mail and then subsequently spoke by telephone with an employee of the BQA, Jean Rucker. In this conversation, Dieterich talked about her beliefs that LindenGrove was making only one page of the two page Incident Report form available to state auditors and was limiting the information it allowed to be included on the first page of the Incident Report. Dieterich had no definite recollection as to whether this contact occurred before or after her discharge, and she failed to establish that it occurred before her discharge. In any event, neither Zerwinski, Weiler, Benson, or any other representative of LindenGrove had any knowledge or belief, prior to the time of Dieterich's discharge, that any such contact had occurred.
53. At some point after Dieterich's discharge, LindenGrove was subject to a complaint survey by the BQA. Such complaint surveys are conducted without any advance notice to the institution being surveyed. In this complaint survey, LindenGrove was asked about the matter of what went on the first and second pages of Incident Reports and was requested to provide some Incident Reports for inspection. In response, Zerwinski provided the surveyor with Incident Reports which included both the pages of that two-page form.
54. At some point after the BQA survey referred to above, Dieterich received a letter from the BQA regarding its investigation. Dieterich did not offer this letter into evidence.
55. The decision to discharge Dieterich was made by Zerwinski after consultation with Benson. At the time she made the decision to discharge Dieterich, Zerwinski knew that in a note written on April 10 Dieterich had said that she was going to contact "State" on the following day (April 11) for guidance on the issue of how Incident Reports were completed and maintained by LindenGrove, but Zerwinski did not know whether Dieterich had done so, she had no particular belief that Dieterich had done so, she did not care whether Dieterich had done so, and the matter of whether Dieterich had thus contacted "State" was not a factor in her decision to discharge Dieterich. Zerwinski decided to discharge Dieterich because she believed Dieterich had committed a serious violation of LindenGrove's standards and expectations by failing to make an entry on the nurse's notes about the resident whose toe had been injured on March 23.
Based on the Findings of Fact made above the commission makes the following:
1. LindenGrove is an employer within the meaning of the Wisconsin Fair Employment Act.
2. LindenGrove is a "health care facility" within the meaning of Wis. Stat. § 146.997(1)(c).
3. The Bureau of Quality Assurance of the Wisconsin Department of Health and Family Services is an "agency," as defined in Wis. Stat. § 111.32(6), of the state, within the meaning of Wis. Stat. § 146.997(2)(a).
4. Jodi Bloom, Ellen Herwehe, Patricia Boyle, Margaret Weiler, and Patty Zerwinski were all "health care providers", within the meaning of Wis. Stat. § 146.997(1)(d), and they were also all "employee[s] of [a] health care facility ... in a supervisory capacity," within the meaning of Wis. Stat. § 146.997(2)(a).
5. The "Investigation Report" form which Dieterich completed and gave to Zerwinski on March 24, 2005, concerning the "insulin" incident, was not a report of information that would lead a reasonable person to believe that any of the conditions described in Wis. Stat. § 146.997(2)(a)1. or 2., existed.
6. The two-page "Incident Report" form which Dieterich completed and submitted to Boyle on March 23, 2005, and the rewritten Incident Report form which Dieterich completed and submitted to Weiler on April 10, 2005, were reports of information which would lead a reasonable person to believe that an employee of a health care facility (specifically, the certified nursing assistant named Bridgett) had violated a state law or regulation, or that there existed a situation in which the quality of a health care service provided by an employee of a health care facility violated a standard established by a state law or rule or federal law or regulation or a clinical or ethical standard, and posed a potential risk to public health or safety, within the meaning of Wis. Stat. § 146.997(2)(a)1. and 2.
7. To the extent that Zerwinski's decision to give Dieterich the "Disciplinary Action Report" disciplinary warning dated April 11, 2005 was a decision Zerwinski made "because of" the content of the Incident Reports Dieterich had filed, it was nevertheless not a decision to take disciplinary action against Dieterich "because [Dieterich] reported in good faith any information under [Wis. Stat. § 146.997](2)," within the meaning of Wis. Stat. § 146.997(3)(a), in that Zerwinski's only concern was with which page of the report form certain information was recorded on.
8 Information regarding LindenGrove's requirements that only certain kinds of information be entered on certain pages of the two-page Incident Report form and regarding LindenGrove's practices as to maintenance and retention of those forms, would not be information that would lead a reasonable person to believe that an employee of a health care facility had violated a state law or regulation, within the meaning of Wis. Stat. § 146.997(2)(a)1.
9. Information regarding LindenGrove's requirements that only certain kinds of information be entered on certain pages of the two-page Incident Report form and regarding LindenGrove's practices as to maintenance and retention of those forms, would not be information that would lead a reasonable person to believe that there existed a situation in which the quality of a health care service provided by an employee of a health care facility violated a standard established by a state law or rule or federal law or regulation or a clinical or ethical standard, and posed a potential risk to public health or safety, within the meaning of Wis. Stat. § 146.997(2)(a)2.
10. Neither LindenGrove, nor any of its agents, took disciplinary action against Dieterich, or discharged Dieterich, because Dieterich had reported in good faith any information under Wis. Stat. § 146.997(2)(a)2., or because LindenGrove or any of its agents believed that Dieterich had reported in good faith any information under Wis. Stat. § 146.997(2)(a)2., within the meaning of Wis. Stat. § 146.997(3).
Based on the Findings of Fact and conclusions of law made above, the commission makes the following:
The complaint in this matter is dismissed.
Dated and mailed September 28, 2010
dieteri . rrr : 110 :
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
This case concerns alleged retaliation under the Health Care Worker Protection Act ("HCWPA"). (2) Respondent LindenGrove ("LindenGrove") is a nursing home and complainant Ingeburg Dieterich is a licensed practical nurse who worked there.
This case was originally before the commission on appeal of a decision by an administrative law judge who had dismissed the complaint at the close of the complainant's case. In its review of the case at that point, the commission concluded that the evidence in the record had been sufficient to make dismissal of the complaint inappropriate, that respondent should have been advised that it had the option of either resting or putting in its case, and that because it had not yet been given this option it was necessary to remand this matter for that to occur.
The commission expressly recognized, however, that the findings and conclusions it was making were based only on the evidence which had come into the record as of that point. The only testimonial evidence in the record was that which had been provided by the complainant and two witnesses she called, and no testimony had been taken from any representative of the employer. The commission therefore made it clear that its findings and conclusions should not be treated as conclusive:
The commission recognizes that evidence which may be presented by LG as part of its case in the further hearing to be held, may well undercut evidence currently in the record on which the commission relied in arriving at the conclusions described above, warranting a different outcome. Thus, the description of facts set out above in this Memorandum Opinion should not be viewed as constituting findings that are binding or conclusive when this matter is before a new ALJ for decision.
When the case came before the commission again, with evidence finally on both sides of the scale, it became necessary to weigh the competing testimony and the competing inferences which could be drawn from the facts. Based on a careful review of the entire record including the testimony from the witnesses for LindenGrove which if did not previously have before it, and after consulting with the administrative law judge who presided at the remand hearing concerning his personal impressions as to the credibility of the witnesses, the commission believes that the evidence presented at the remand hearing did indeed undercut significant elements of the complainant's case. Given the findings of fact made above in this decision, the commission concludes that the complainant failed to establish that LindenGrove retaliated against her in violation of the HCWPA.
Factual findings, Credibility --
There were sharp disputes as to a number of factual issues in this case. These factual issues were material to the ultimate legal issue of whether there was unlawful retaliation. The commission's decision that the complainant failed to establish that LindenGrove retaliated against her in violation of the HCWPA followed from the commission's findings on most of these issues being contrary to the claims being made by the complainant.
Those findings were affected by the commission's views on the credibility of the witnesses. In a number of areas, the testimony of Dieterich and her witnesses conflicted sharply with that of testimony of the witnesses for LindenGrove such that it was necessary to make decisions as to what testimony was credible and what was not. ALJ Schacht's decision reflects that he did not credit the testimony of Dieterich and her witnesses with regard to a number of specific factual points, and that he did credit the testimony by LindenGrove's witnesses in those areas. The commission consulted with ALJ Schacht in order to have the benefit of his personal impressions as to the credibility of the witnesses, see, Rucker v. DILHR, 101 Wis. 2d 285, 289, 304 N.W.2d 169 (Ct. App. 1981). In this consultation the ALJ confirmed that his personal impressions as to the credibility of the witnesses were consistent with the views he took from considering the content of their testimony, that being that he found the witnesses for LindenGrove to be more credible and Dieterich less so. The commission agreed with ALJ Schacht's assessment of credibility. Its overall impression, considering things including inconsistencies or changes in witness testimony, the potential for partiality (as in the matter of the circumstances of Bloom's separation from employment with LindenGrove), and the general plausibility of the content of witnesses' testimony, was that the testimony of Dieterich was not reliable on what were some of the critical factual issues in the case. These included the manner in which the two-page Incident Reports were maintained by LindenGrove and how and whether they were made available to the State, whether Dieterich did in fact make an entry on the nurse's notes concerning the resident's toe injury, and whether Dieterich did in fact make a statement during the April 11 telephone call to the effect that she would be contacting the State. The commission also had the overall impression that the testimony of the witnesses for LindenGrove was credible with regard to these matters, and as well with regard to the critical ultimate issues of what the actual subjective reasons were for deciding to give Dieterich the disciplinary warnings and for deciding to discharge her.
One consideration which weighed significantly in the commission's assessment that Dieterich's testimony was less than credible, was its belief that Dieterich was being willfully disingenuous, both at the time of the events in question, and at the hearing, on the matter of whether the CNA Bridgett actually said to Dieterich that she was ill and not paying attention. The commission believes this, for several reasons.
First, in her own initial description at hearing of the incident involving the CNA, Dieterich conspicuously testified at some length about the incident without including any indication that the CNA told her "I am ill - I was not paying attention" or anything of that sort. She first asserted that the CNA had actually made such a statement to her, only when specifically requested by her counsel to explain the "CNA ill - not paying attention?" statement she later entered on the Incident Report. The fact that this testimony had to be thus prompted leaves the commission less than persuaded that it was any part of Dieterich's actual recollection of the events of that evening.
Second, it is very noticeable that when she initially completed the Incident Report form, Dieterich noted a statement by Bridgett (to the effect, "I ran over his foot w. the w/c"), on the line for entering "Statements" of witnesses, and using quotation marks to note that it was a statement; while on the same page she wrote the words "CNA ill - not paying attention?", on a different line, without using quotation marks. The use of a question mark also unmistakably signals that this was not a "statement" made to her by Bridgett, but rather Dieterich's own view about what the contributing factors were, and that it was a speculative view. Dieterich's use of exactly the same phrase, on the second page of the Incident Report, in the line for "Describe how/why this happened," again without quotation marks or any similar indicator that this was a statement of a witness, also signals that this was simply Dieterich's speculation. In the face of this, the subsequent insistence by Dieterich that this was in fact an actual statement that the CNA made to her, is extremely hard to credit. Simply put, if it had been an actual statement which the CNA had made to her, one would have expected to see it Dieterich enter it, in quotes, on the line for entering "Statements" of witnesses, as she did the other statement by the CNA. It appears that this is simply a case in which Dieterich was "caught", so to speak, entering a subjective speculation about why something happened, rather than an objective description of what happened, on the first page of an Incident Report, and that when she was asked to correct this she decided to change her version of what the actual facts were (i.e., what the actual statements of witnesses were) so that she could avoid having to acknowledge that the had not initially completed the form consistently with LindenGrove's standards.
Dieterich's testimony at the remand hearing, that when she made the entry on her first version of the form she was "trying to convey that she had told me that she was ill and she was not paying attention," was simply not credible.
Third, the testimony of Bloom about this incident confirms the commission's belief that the CNA did not make a statement to Dieterich as Dieterich claims she did. Bloom testified that the CNA said to her that she wasn't paying attention and wasn't feeling well - but Bloom also testified that this occurred in a private conversation she had with the CNA after she took her into the supervisor's office, and that Dieterich was not present at that time.
The commission suspects that, at most, what happened here is that after the fact, Bloom told Dieterich, that the CNA had said something to her (i.e., Bloom) about being ill and not paying attention, and that Dieterich then incorporated that second-hand information into her report, putting it in the "Contributing Factor" line, not using quotes, and applying a question mark, because she recognized that she could not honestly report that this was a statement she knew the CNA to have given. Then, when her insertion of this apparent speculation on her part was challenged, she claimed that it had been an actual statement made to her by the CNA. That, the commission believes, was not true.
Viewed in one way, this disingenuousness might be considered of minor significance in the overall context of this case. However, the commission views it in a different way. The nature of the statement in question - i.e., whether it was an actual statement which the CNA made to Dieterich which she then properly reporting on the first page of the Incident Report, or whether it was a speculation Dieterich was making which properly belonged on the second page of the Incident Report - was central to the issue of whether LindenGrove was trying to hide things from the State by keeping them only on the second pages of these reports, so that her actions in trying to get something to go in on the first page of the report was in the nature of a protected report to the State. The significance of that issue to the case makes the commission inclined to see Dieterich's disingenuousness regarding it as indicative of a more general lack of credibility.
Another important factual issue, on which the commission found Dieterich's testimony less credible, was whether she engaged in the conduct which LindenGrove claimed was the reason it decided to discharge her: failure to make an entry on the nurse's notes for the resident whose toe was injured.
Dieterich initially asserted, that she did make an entry on the nurse's notes for the patient whose toe was injured, about that injury. She made these assertions unequivocally. Then, however, LindenGrove offered into evidence a copy of the nurse's notes in question, and asked Dieterich to explain why they showed no entry by her. (3) She acknowledged that there was no entry from her, but continued to assert that she had made one.
In her re-direct testimony following this, Dieterich was asked by her counsel if anything appeared "unusual or out of the ordinary" to her on the nurse's notes, and Dieterich responded by asserting that she believed there was a "smudge" on the document, in the third space up from the bottom of the first page, and that it appeared to her that something could have been "whited out" and that it appeared to her that there was something written underneath it.
Dieterich then volunteered a completely different explanation for the absence of an entry from her, suggesting that rather than using the two empty lines which would have been available after the March 18 Boyle entry, she might have grabbed a new blank sheet and made her entry on that, and that someone from LindenGrove then took that sheet out and got rid of it.
However, the space where Dieterich asserted there was a "smudge", was the space directly above the space where Boyle made an entry about the injury to the patient's toe. What appears in that space, is the signature of Boyle to a previous entry she had made on that same patient's chart, on March 18. No "smudge" of any kind, and no indication that anything had been written under what was there, is apparent on the exhibit. On the contrary, it would have been impossible for Dieterich to have made an entry there because the line was already taken up by the signature line to Boyle's previous, March 18 entry. It also cannot be, that that was a previously blank line on which Dieterich wrote and which Boyle the "whited" out in order to apply her signature, unless it is also posited that Boyle had the foresight 5 days earlier on March 18, to violate required procedure and leave her entry of that date unsigned.
Dieterich's alternative explanation, that she might have grabbed a new page and made her entry on that, is problematic because it was undisputed that standard procedure in such a case would be that the remaining unused lines on a page would be scored through. Dieterich's hypothesis that she might have not seen that there were a couple of lines below, does not persuade the commission.
Dieterich's speculations that her entry had either been "whited out" and overwritten, or made on a separate sheet which was subsequently discarded, are not credible. More than that, though, her insistence in the face of clear evidence that she did not make an entry on the nurse's notes for the resident whose toe was injured, leaves the commission dubious about her credibility as a general matter.
Another important factual issue, on which the commission found Dieterich's testimony less than credible, was what Dieterich may have actually said in her April 11 telephone conversation with Zerwinski regarding "State", or about an intention to contact "State", or about having already contacted "State".
On the first day of hearing, Dieterich testified at length about a telephone conversation with Zerwinski on April 11, 2005. In her initial testimony on this topic, she made no claim of having said anything in the conversation to the effect that she was planning to contact "State." The only thing she testified to saying which touched on the matter of a contact with State, or even mentioned "State", is that she told Zerwinski that she wanted certain information to be on the first page of the Incident Report because she wanted State to see that information. Dieterich also testified that Zerwinski did not respond to that statement of hers, "at all".
After a recess was taken, though, Dieterich returned and offered the claim that in that telephone conversation, she had told Zerwinski that "[she] would be contacting State." She also testified that Zerwinski immediately responded to this by saying, "Okay, then you are not allowed to come to work." This testimony differs in two significant ways from her previous testimony prior to the break: it differs in regard to what Dieterich said about "State", and it differs in regard to what reaction, if any, Zerwinski had to what she said about "State".
Then, at the remand hearing, Dieterich testified again about the April 11, 2005 telephone conversation with Zerwinski, and in that testimony, Dieterich asserted that in this telephone conversation, she told Zerwinski that she "had e-mailed the State" about the way LindenGrove wanted Dieterich write the report on the "toe" injury. This is a third version of what Dieterich said about "State" in this telephone conversation.
These inconsistencies contributed to the commission's conclusion that Dieterich was not credible as a witness.
Another matter as to which Dieterich's testimony was inconsistent, raising issues about her credibility, was the question of exactly when Dieterich did eventually have her contact with the BQA and Jean Rucker. Initially, Dieterich testified that she thought her contact with State was after her April 11 phone conversation with Zerwinski; then she testified that she believed her contact with State was before she talked to Zerwinski on the 11th, or possibly even the 10th. Later, Dieterich testified that she first contacted BQA on the day before she was fired (which would have been April 12); she then acknowledged that it might actually have been after she was fired that she first contacted them. This inconsistency became particularly important in light of the testimony offered by Weiler at the remand hearing. If Dieterich had contacted the State prior to the April 11 telephone call, this would be consistent with and would thus tend to support her version that in that call she said that she "had" contacted State. Weiler, though, denied hearing Dieterich make that statement in that call. The commission credits Weiler's testimony over the inconsistent testimony of Dieterich. Rejecting Dieterich's testimony that she said in this conversation that she "had" contacted State, the commission accordingly also rejects Dieterich's claim about an overtly retaliatory response allegedly made by Zerwinski.
Ultimately, the most important factual issue in this case has to do with the actual subjective motivation of Zerwinski in deciding to discharge Dieterich.
Dieterich asserts that there is something suspicious about the fact that she was given the April 11 "Disciplinary Action Report" giving her a final warning, and the April 12, "Disciplinary Action Report" discharging her, at the same time, which she asserts is not consistent with progressive discipline. However, it is clear that the sequencing of these disciplines simply had to do with matters of timing and scheduling - specifically, that Dieterich was not scheduled to be in to work on April 11 when the first DAR was written up, and that the matter of her failure to chart the toe injury on the injured patient's nurse's chart was only discovered by Zerwinski on April 12.
The commission also does not find it suspicious that Zerwinski came to learn of Dieterich's failure to make a nurse's note entry only when she did. Because Zerwinski was having difficulty in getting Dieterich to follow instructions about provide an Incident Report complying with LindenGrove's standards and expectations, it is understandable that she would have been engaged in trying to independently look into what happened in that incident. The nurse's chart would be one obvious place to look.
Finally, it does appear that failure to make an entry on a nurse's chart regarding an accidental injury to a resident was indeed considered by LindenGrove to be a serious matter. As Zerwinski noted on the Disciplinary Notice, applicable rules make it a standard of practice to do this kind of charting. Wis. Admin. Code Ch. N[ursing] 6.04, "Standards of practice for licensed practical nurses", states that in the performance of acts in basic patient situations, the L.P.N. shall, among other things, "(c) Record nursing care given and report to the appropriate person changes in the condition of a patient," and Wis. Admin. Code DHS 132.45(5)(c)3.a. provides that for residents requiring skilled care, a narrative nursing note shall be required as often as needed to document the resident's condition, but at least weekly. (4) LindenGrove had detailed written policies about the nurse's notes ("Integrated Progress Notes"), which included the expectation with regard to nursing services that when "whenever appropriate, PRN documentation is required with any change of condition to include the problem, the observational data, physical findings, the assessment and the plan of care".
Dieterich points to the fact that Boyle was late in making an entry on another patient's chart and was not disciplined. This, Dieterich asserts, shows that failing to make a timely entry on a patient's chart was not viewed by LindenGrove as such a serious matter as to lead to discipline on the level of discharge. The details of the Boyle matter are that she made an entry on a patient's chart on March 25, which related to March 23 and should have been made on that date. Boyle wrote "late entry 3/23" when she made her late entry on March 25. It is significant here, that the entry was a routine notation of the patient's weight. The practice was that this was to be noted on their chart on a weekly basis. Zerwinski differentiated this from Dieterich's failure to make an entry as to an accidental injury. Zerwinski explained that because of the nature of the matter which was not timely noted by Dieterich - an injury to an extremity of a patient with peripheral vascular disease - it was much more important that such a matter be recorded timely. The commission finds this persuasive. A two-day delay in noting a routine weight-monitoring event which is normally done on a weekly basis, is simply not comparable to a failure to note an accidental injury causing a skin tear on the toe of an elderly patient with diabetes. The latter is indisputably more serious in terms of the potential for harm which could result if other caregivers, unaware of it because of a lack of an entry on the nurse's notes, failed to monitor and provide necessary followup care for the resident.
Application of the law to the facts found --
The Health Care Worker Protection Act, Wis. Stat. § 146.977, provides employees of health care facilities or health care providers with protection against retaliation for engaging in certain defined protected conduct. It is not disputed that Dieterich was an employee of a health care facility within the meaning of HCWPA. The first step in determining whether there was a violation of HCWPA is therefore to determine whether Dieterich engaged in protected conduct under the law.
The law provides, in relevant part:
§ 146.997 (2) Reporting protected.
(a) Any employee of a health care facility or of a health care provider who is aware of any information, the disclosure of which is not expressly prohibited by any state law or rule or any federal law or regulation, that would lead a reasonable person to believe any of the following may report that information to any agency, as defined in s. 111.32 (6) (a), of the state; to any professionally recognized accrediting or standard-setting body that has accredited, certified or otherwise approved the health care facility or health care provider; to any officer or director of the health care facility or health care provider; or to any employee of the health care facility or health care provider who is in a supervisory capacity or in a position to take corrective action:
1. That the health care facility or health care provider or any employee of the health care facility or health care provider has violated any state law or rule or federal law or regulation.
2. That there exists any situation in which the quality of any health care service provided by the health care facility or health care provider or by any employee of the health care facility or health care provider violates any standard established by any state law or rule or federal law or regulation or any clinical or ethical standard established by a professionally recognized accrediting or standard-setting body and poses a potential risk to public health or safety.
(b) An agency or accrediting or standard-setting body that receives a report under par. (a) shall, within 5 days after receiving the report, notify the health care facility or health provider that is the subject of the report, in writing, that a report alleging a violation specified in par. (a) 1. or 2. has been received and provide the health care facility or health care provider with a written summary of the contents of the report, unless the agency, or accrediting or standard-setting body determines that providing that notification and summary would jeopardize an ongoing investigation of a violation alleged in the report. The notification and summary may not disclose the identity of the person who made the report.
(c) Any employee of a health care facility or health care provider may initiate, participate in or testify in any action or proceeding in which a violation specified in par. (a) 1. or 2. is alleged.
(d) Any employee of a health care facility or health care provider may provide any information relating to an alleged violation specified in par. (a) 1. or 2. to any legislator or legislative committee.
(3) Disciplinary action prohibited. (a) No health care facility or health care provider and no employee of a health care facility or health care provider 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), in good faith initiated, participated in or testified in any action or proceeding under sub. (2) (c) or provided in good faith any information under sub. (2) (d) or because the health care facility, health care provider or employee believes that the person reported in good faith any information under sub. (2) (a), in good faith initiated, participated in or testified in any action or proceeding under sub. (2) (c) or provided in good faith any information under sub. (2) (d).
(b) No health care facility or health care provider and no employee of a health care facility or health care provider may take disciplinary action against, or threaten to take disciplinary action against, any person on whose behalf another person reported in good faith any information under sub. (2) (a), in good faith initiated, participated in or testified in any action or proceeding under sub. (2) (c) or provided in good faith any information under sub. (2) (d) or because the health care facility, health care provider or employee believes that another person reported in good faith any information under sub. (2) (a), in good faith initiated, participated in or testified in any action or proceeding under sub. (2) (c) or provided in good faith any information under sub. (2) (d) on that person's behalf.
The key language here is found in sub. (3)(a), which effectively prohibits retaliation against a person because that person
reported in good faith any information under sub. (2)(a),
in good faith initiated, participated in or testified in any action or proceeding under sub. (2)(c)
or
provided in good faith information to a legislator under sub. (2)(d)
or because the health care facility, health care provider or employee believes that the person did any of those things.
Given this, the scope of the issues in this case can be narrowed somewhat. There is no evidence, and no contention, that prior to her discharge Dieterich initiated, participated in or testified in "any action or proceeding" under and within the meaning of sub. (2)(c) of the HCWPA, or that LindenGrove believed she had. There is also no evidence, and no contention, that she provided any information to any "legislator or legislative committee" under and within the meaning of sub. (2)(d) of the HCWPA, or that LindenGrove believed she had. Dieterich's claim is thus necessarily that she was retaliated against because she "reported in good faith ... information under sub. (2)(a)," or because LindenGrove believed that she had (5) done so.
The final step in defining the scope of the conduct protected under HCWPA is to parse the language of § 146.997(2)(a), which describes both to whom a report must be made, and what the report has to be about, in order for it to be protected under that subsection. With regard to the matter of to whom the report must be made, the section effectively provides that it must be made to
any agency, as defined in s. 111.32 (6) (a), of the state
any professionally recognized accrediting or standard-setting body that has accredited, certified or otherwise approved the health care facility or health care provider
any officer or director of the health care facility or health care provider
or
any employee of the health care facility or health care provider who is in a supervisory capacity or in a position to take corrective action
Again, the scope of the issues in this case can be narrowed somewhat given this language. There is no evidence, and no contention, that prior to her discharge Dieterich made a report to an "accrediting or standard-setting body," or to an "officer or director" of a health care facility or provider (the commission takes these terms to denote actual corporate officers or members of a board of directors). There are issues as to whether, and when, she made a report to a state agency. It is not disputed that Dietrich had a number of communications with employees of LindenGrove, which is a health care facility and provider, who were in a supervisory capacity, which could be considered "reports" under this section.
Finally, with regard to the matter of what a report must be about in order to be protected, the section effectively provides that the report must be of any "information...that would lead a reasonable person to believe":
that a health care facility or provider or employee thereof 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 by the health care facility or provider or employee thereof
violates any standard established by
any state law or rule or federal law or regulation
or
any clinical or ethical standard established by a professionally recognized accrediting or standard-setting body
and
poses a potential risk to public health or safety.
Thus whether or to what extent Dieterich was in a protected position under HCWPA turns on the questions of whether she actually made, or whether LindenGrove believed that she had made, a report about something falling within the parameters of § 146.997(2)(a), and made such a report to a supervisory authority at LindenGrove or to a state agency.
The "Investigation Report" form which Dieterich completed and gave to Zerwinski on March 24, 2005 concerning the "insulin" incident was a report given to a supervisory employee of a health care facility, and Dieterich was disciplined in part for what she put in this report (or, more accurately, what she refused to take out of it, that being her complaint about another employee allegedly "retaliating" against her because of something Dieterich told Zerwinski about what that employee told another employee). Whether this was prohibited retaliatory discipline under the HCWPA also depends, though, on whether the report was about the kinds of things described in Wis. Stat. § 146.997(2)(a)1. and 2. The commission concluded that it was not (Conclusion of Law No. 5). No violation of any state law or rule or federal law or regulation is suggested in what Dieterich wrote. Furthermore, the report does not provide reason to believe, that any health care service violated any applicable standard or posed a potential risk.
The commission concluded that the two-page "Incident Report" form which Dieterich completed and submitted to Boyle on March 23, 2005, and the rewritten Incident Report form which Dieterich completed and submitted to Weiler on April 10, 2005, were both reports the making of which was protected conduct under the HCWPA (Conclusion of Law No. 6). The Incident Reports are protected reports under HCWPA for the simple reason that they report Dieterich's beliefs that a resident was actually injured by the actions of an employee of a health care facility which were caused by the employee being ill and not paying attention. It seems clear that, whether or not an employee would directly violate any particular state or federal law by running over with a wheelchair and injuring a resident's toe due to being ill and not paying attention, this would certainly describe "a situation in which the quality of a health care service provided by an employee of a health care facility violated a standard established by a state law or rule or federal law or regulation or a clinical or ethical standard, and posed a potential risk to public health or safety." However, the question still remains, whether LindenGrove disciplined Dieterich "because" she made such a protected report, within the meaning of the statute. Clearly, Zerwinski disciplined Dieterich (by issuing the disciplinary warning) in part because she was unhappy with the content of the Incident Reports Dieterich had filed regarding the "toe" incident. However, the commission concludes that in this circumstances here, this does not establish that Dieterich was disciplined "because" she reported in good faith any information under Wis. Stat. § 146.997(2)," within the meaning of Wis. Stat. § 146.997(3)(a). (Conclusion of Law No. 7).
A significant factual issue in this case, involved the practices actually followed by LindenGrove with respect to the two pages of the Incident Report form. Dieterich argued that LindenGrove separated the two pages, showed only the first page to state auditors, and was insistent on employees not putting certain kinds of information on that first page because this allowed it to hide information about problems from the state. LindenGrove's witnesses strenuously denied this, asserting that the two pages were stapled together, always kept together, and always shown to state auditors together. The commission believed, as did the administrative law judge, that LindenGrove's witnesses were more credible on this point than were Dieterich and her witnesses. The commission therefore found (as reflected in Finding of Fact No. 7), that LindenGrove kept the two pages of the Incident Report together and made both pages of those reports available to state auditors.
From this it follows, that the discipline of Dieterich for her refusal to follow LindenGrove's policies concerning where on the two-page Incident Report form certain kinds of information are reported, was not discipline because Dieterich was reporting that information to the State. Zerwinski's objection to Dieterich's conduct, which was the reason for her decision to discipline Dieterich, was Dieterich's refusal to comply with the policies and practices of LindenGrove concerning which page of the Incident Report form various types of information was reported on. However, whichever page Dieterich used, though, the information was going to be available to the State. LindenGrove was not trying to get Dieterich to omit any information entirely from the report, but simply to enter it on the proper page. Since it is clear that this is all that LindenGrove was trying to achieve, there is no reason to find that it was disciplining Dieterich because she was reporting the information to the State.
Dieterich takes the position that she was retaliated against in part because in her note of April 10 she communicated to LindenGrove that she intended to contact State regarding the way in which LindenGrove was requiring the Incident Report form to be completed and what LindenGrove did with such reports after they were submitted. (6)
However, the commission concluded (Conclusions of Law No. 8, 9) that information regarding LindenGrove's requirements that only certain kinds of information be entered on certain pages of the two-page Incident Report form and regarding LindenGrove's practices as to maintenance and retention of those forms, would not be information that would lead a reasonable person to believe that an employee of a health care facility had violated a state law or regulation, within the meaning of Wis. Stat. § 146.997(2)(a)1., or that there existed a situation in which the quality of a health care service provided by an employee of a health care facility violated a standard established by a state law or rule or federal law or regulation or a clinical or ethical standard, and posed a potential risk to public health or safety, within the meaning of Wis. Stat. § 146.997(2)(a)2. Dieterich has not established that any specific law or regulation was violated by the practices which LindenGrove actually engaged in regarding the Incident Reports, or that such practices violated standards in state law or rule or federal law or regulation or any clinical or ethical standard, or posed a potential risk to public health or safety.
Second, while Dieterich's theory about the "contacting State" matter is functionally the same as that posited by the commission in its original decision (i.e., the theory that LindenGrove discharged Dieterich because it believed that she had contacted the State), her version of the facts on which she bases this theory is different from the facts which the commission had looked to in order to make its inference about what LindenGrove's representatives believed. Dieterich's brief relies on a supposed fact that Dieterich "inform[ed] Zerwinski and Weiler that she had e-mailed 'State' to discuss LindenGrove's method of completing reports of patient injuries." The commission made no such finding, but instead relied on a permissible inference that, because Dieterich had told Zerwinski and Weiler in a note written on Sunday, April 10 that she was going to contact "State" on Monday, April 11, and because there was no evidence that Zerwinski and Weiler were subsequently told that this had not occurred, Zerwinski and Weiler could have believed on Tuesday, April 12, when the Disciplinary Action Report discharging Dieterich was prepared, that Dieterich had in fact already contacted "State" on the previous day. This inference, though, was one which the commission thought was a permissible one to make based on the record as it then existed, with one side of the scale empty. The commission is now satisfied, based on crediting the testimony provided by LindenGrove's witnesses, that even though Dieterich had written in a note of April 10 that she "would" contact State, Zerwinski did not form any belief that Dieterich had actually done so, and she did not act on the basis of any such belief in making her decisions.
The commission concluded for all the foregoing reasons, that LindenGrove did not discipline or discharge Dieterich because she had (or LindenGrove thought she had) made any protected report, within the meaning of Wis. Stat. § 146.997(3). (Conclusion of Law No. 10). Dieterich was initially disciplined because of her repeated refusal to cooperate with expectations and instructions as to the manner in which certain information was to be reported, not because some of that information included Dieterich's speculations about how a patient came to be injured. While Dieterich did then threaten to contact the State about LindenGrove's expectations and instructions as to the manner in which certain information was to be reported, this would not have been a protected report had it occurred, and in any event her statement that she was going to make such a report was not a factor in what LindenGrove subsequently decided to do. Dieterich was eventually discharged because LindenGrove discovered that she had engaged in a serious failure to comply with required procedures when she failed to chart an entry on a resident's nurse's notes concerning an injury to that resident. In the commission's view it was that, rather than any belief LindenGrove may have had regarding reports that Dieterich may have made to the State, which was the reason for the discharge.
cc:
Attorney Kathleen M. Lounsbury
Attorney John E. Murray
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