DOVIE GILMORE, Complainant
BEVERLY LIVING CENTER, Respondent
An administrative law judge 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 administrative law judge. Based on its review, the commission issues the following:
The decision of the administrative law judge is set aside and this matter is remanded to the Equal Rights Division for continued proceedings before an administrative law judge and, after the presentation of all the evidence by the parties, the issuance of a new decision on the complainant's complaint of discrimination.
Dated and mailed
January 29, 2013
gilmodo . rpr : 164 : 5
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
Summary of the facts
The complainant, who is African American, worked for the respondent, a nursing home, for about two months as the night shift RN supervisor. Her hours were from 10:30 p.m. until either 6:30 a.m. or 7:00 a.m., and she reported to Lucy Graf, the director of nursing.
The complainant obtained her job with the respondent through a temporary staffing agency called Nurses Now, and it appears she was still employed by Nurses Now as of her last day of work for the respondent. The respondent also employed another nurse through Nurses Now, Peggy Carew. During her employment the complainant heard rumors that Ms. Graf wanted to hire Ms. Carew and wanted her to replace the complainant.
The respondent had a patient who was scheduled to receive an IV drip at 8:00 a.m. Per a doctor's order, however, the time for the IV was changed to 7:00 a.m. On August 29, 2007, the complainant finished her shift, punched out and slipped her time sheet under the administrator's door. At 7:30 a.m. the complainant was heading out the door when the nurse who came to relieve her, Beverly Newell, told her that Ms. Graf, had called her at home and instructed her to tell the complainant to administer the IV. The complainant explained that she had already punched out and questioned why Ms. Graf had called Ms. Newell at home rather than contacting the complainant at the work place. The complainant indicated that she could not hang the IV because she could not stay until it was completed, per the doctor's orders. The complainant then went home.
At the hearing the complainant explained that the respondent has strict rules about working off the clock, and that she did not believe she could perform the task after she had already punched out. The complainant further testified that it takes between thirty and ninety minutes for an IV antibody to infuse and that the doctor's orders would require her to be present to observe that the patient received the entire medication. The evidence established that the respondent's policies prohibit unauthorized overtime, as well as working off the clock, and provide that this conduct will result in disciplinary action, up to and including discharge.
After the complainant went home, Ms. Graf contacted Carol Colbert, the respondent's scheduler, and directed her to remove the complainant from the schedule and to notify Nurses Now to find a replacement. Ms. Graf told Ms. Colbert that Ms. Carew was coming on board. After her conversation with Ms. Graf, Ms. Colbert called the complainant's home and left a message for the complainant to contact Ms. Graf.
Later that day the complainant telephoned Ms. Graf, who informed her that she was suspended pending investigation. When the complainant asked why, Ms. Graf responded, "Cut the BS." Ms. Graf told the complainant she was a liar and stated that a "credible nurse" had told the complainant to hang an IV. The complainant asked if Ms. Graf was referring to Ms. Newell, and Ms. Graf said, no, she was referring to Ms. Carew. The complainant told Ms. Graf that she felt she was being discriminated against and that, if this was the case, she was going to have to file a complaint. Ms. Graf slammed down the phone on the complainant.
The complainant contacted Ms. Colbert and learned that she had been taken off the schedule for Friday, her next scheduled work day, as well as Saturday and Sunday. When the complainant subsequently went to pick up her paycheck from the respondent she was told that it had been mailed to her, which was unusual. The complainant attempted to reach Ms. Graf, but she did not return the complainant's telephone calls. The complainant did not perform further services for the respondent and testified that she felt she was discharged because of her race and because she said she had been discriminated against and was going to file a complaint.
Discussion
After presenting the evidence summarized above, the complainant rested her case. However, rather than presenting its own evidence, the respondent moved for dismissal. It did so on the ground that it had discharged the complainant for a legitimate, nondiscriminatory reason -- her failure to hang an IV. The administrative law judge granted the motion to dismiss and the hearing was closed without presentation of any evidence by the respondent. The complainant then filed a petition for commission review.
This case is before the commission on probable cause. The complainant's burden in a probable cause proceeding is a lesser one than in a case on the merits. The burden of proof at a probable cause hearing has been described as "low." See, Boldt v. LIRC, 173 Wis. 2d 469, 496 N.W.2d 676 (Ct. App. 1992).
The complainant contended that she was discharged based upon her race and in retaliation for having opposed discrimination. (1) To establish a prima facie case of a discriminatory discharge based upon race, the complainant must show that: 1) she was a member of a protected group; 2) she was discharged; 3) she was qualified for the job; and 4) either she was replaced by someone not within the protected class or others not in the protected class were treated more favorably. Puetz Motor Sales, Inc., v. LIRC, 126 Wis. 2d 168, 172- 73, N.W.2d 372 (Ct. App. 1985). In order to establish unlawful retaliation, the complainant must initially prove that: 1) she engaged in statutorily protected conduct; 2) the employer took an adverse action against her; and 3) a causal connection exists between these two things. Acharya v. Carroll, 152 Wis. 2d 330, 448 N.W.2d 275 (Ct. App. 1989).
The complainant has met her initial burden on both issues. The complainant demonstrated that she is African American, and that, after being told she was suspended, she was removed from the schedule and performed no work for the respondent thereafter. The complainant also established that she was qualified for the job, having performed the job for two months prior to the discharge. Further, one of the owners of Nurses Now, Frances Clark, testified that she has known the complainant for almost ten years based upon her work for Nurses Now and that her performance has been good. Finally, the complainant testified that she was replaced by Ms. Carew, and the evidence shows that in the month following the complainant's discharge Ms. Carew was hired directly by the respondent. Although there is no testimony in the record regarding Ms. Carew's race, it can be inferred that she is not African American based upon the complainant's assertions that the reason she believes her race was a factor in the discharge is that the respondent told her Ms. Carew was more credible than she was, and because she had heard the respondent wanted to get rid of her in order to hire Ms. Carew.
With regard to her claim of retaliation, the complainant established that she notified the director of nursing that she believed she had been discriminated against and that she may be filing a complaint. Such conduct amounts to protected opposition, in that it constitutes an action the complainant took to protest discrimination. See, Notaro v. Kotecki & Radtke, S.C., ERD Case No. 8902346 (LIRC July 14, 1993). The complainant also established that, immediately after she engaged in her protected conduct, Ms. Graf hung up the telephone on her and removed her from the schedule. The complainant was not scheduled to work thereafter, and the director of nursing refused to take her calls. Such evidence is sufficient to meet the complainant's initial burden of establishing a prima facie case of retaliatory discharge.
If a prima facie case has been established, the respondent must articulate a legitimate, nondiscriminatory reason for its actions. If the respondent carries its burden of production, the complainant then must show that the respondent's asserted reasons were in fact a pretext for retaliatory conduct. Monroe v. Birds Eye Foods Inc., ERD Case No. CR200304303 (LIRC March 31, 2010). However, a finding in the complainant's favor will result when the prima facie case of discrimination is not rebutted by the articulation of a non-discriminatory reason. Foust v. City of Oshkosh Police Dept., ERD Case No. 9200216 (LIRC April 9, 1998).
The respondent did not present any evidence to rebut the complainant's prima facie case. While, in making its motion to dismiss, it contended that the complainant was discharged for failing to hang the IV, the respondent offered no testimony on this point at the hearing, and the complainant's testimony that she believed she was discharged for discriminatory reasons went unrebutted. The administrative law judge erred in granting a motion to dismiss based upon an assertion that was unsupported by any evidence in the record, when the complainant's unrebutted evidence demonstrated probable cause to believe there was a discriminatory reason for the discharge.
The commission has frequently advised administrative law judges against dismissing a complaint without hearing the entire case:
"A dismissal at the close of the complainant's case-in-chief contemplates a circumstance in which it is clear that, whether or not the respondent introduces any evidence on its behalf, there is simply no way in which the complainant can reasonably prevail. The commission is of the view that, in all but the clearest and most unambiguous of circumstances, the best practice is to require the respondent to go forward with its case so that the fact-finder may consider all of the relevant evidence. . . .
Roberge v. Department of Agriculture, Trade and Consumer Protection, ERD Case No. CR200303360 (LIRC May 31, 2005). (2)
Because the record made at the hearing in this matter established a prima facie case, dismissal of the complaint at the close of the complainant's case was inappropriate. Upon offering its motion to dismiss, the respondent should have been advised that it had the option of either resting or putting in its case. As the respondent was not given those options, the commission considers it necessary to remand this matter for further proceedings.
See, Combs v. Service First Staffing, ERD Case No. 200802710 (LIRC July 18, 2011);
Dieterich v. Lindengrove, Inc. (LIRC, Dec. 29, 2008).
cc:
Attorney Erik Eisenmann
Attorney Lira Johnson
Ms. Dovie Gilmore
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