KENNETH VALYO, Complainant

ST MARYS DEAN VENTURES INC, 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 makes the following:

1. The respondent, St. Mary's Dean Ventures, (hereinafter "SMDV"), is a provider of medical services that is owned jointly by Dean Health Systems, Inc. and Sisters of St. Mary's Health Care (hereinafter "SSM").

2. The complainant, Kenneth Valyo, (hereinafter "complainant"), is a physician who has worked for SMDV since 1992 as part of a family practice group located in Dodgeville, WI, known as Family Practice Associates.

3. In 2001 the complainant began working as a consultant to assist the Lands' End corporation in establishing an on-site medical clinic, which was to be a joint venture between Lands' End and SMDV. In 2003 the respondent opened the medical clinic at the Lands' End corporation, and the complainant began working at Lands' End sixteen to twenty hours a week, in addition to working full time for Family Practice Associates. By 2006 the complainant was spending most of his time at the Lands' End clinic, and was working only one day a week for Family Practice Associates.

4. At some point SMDV began exploring the possibility of expanding its on-site corporate medical practice beyond Lands' End to other businesses. The expanded on-site clinics were to be a joint effort among SMDV, Dean Health Systems and SSM. The president and CEO of SMDV, Stephen Olson, was responsible for developing a business plan for the new corporate clinics.

5. Beginning in the summer of 2006, the complainant and respondent began talking about the concept of creating a corporate medical director position to oversee medical clinics housed in private corporations. The position would be a joint venture between SMDV, Dean Health Systems, Inc., and SSM, and the medical director would be considered an employee of Dean Health Systems. Olson felt that the complainant would be a good candidate for the position because he was already running the clinic at Lands' End and because he had talked about the long-term possibility of doing only corporate medicine. The parties discussed the creation of this position on an ongoing basis. In May of 2007 the complainant provided a tour of the Lands' End clinic to Olson and the CEO of Dean Health Systems, Dr. Craig Samitt.

6. On June 13, 2008, the complainant filed a discrimination complaint against SMDV in which he alleged that his medical partners at Family Practice Associates had denied him an accommodation for a disability by refusing to relieve him of on-call duties at his request. On September 18, 2008, the Equal Rights Division issued an initial determination finding probable cause.

7. In October of 2008, the complainant sent an e-mail to Olson suggesting a meeting with Dr. Samitt to discuss corporate medicine opportunities. In his e-mail the complainant asked whether Samitt was aware of his discrimination complaint, and Olson responded that he was. The requested meeting was held on December 1, 2008, with the complainant, Olson, and Samitt in attendance. During the meeting Samitt asked the complainant to develop a job description for the position of medical director. The complainant indicated that he did not feel comfortable doing so, and Samitt agreed to do it instead. Samitt stated he hoped to have a draft completed within a week.

8. On December 17, 2008, Olson sent the following e-mail to Samitt:

"I am meeting with Dr. Valyo next Monday in Barneveld to discuss the lawsuit. Any chance that you may have a draft job description for a corporate clinic medical director?? May help with the conversation."

9. The meeting in question was held on December 22, 2008. Although Olson had told Samitt that the purpose of the meeting was to discuss the discrimination complaint, he did not mention this to the complainant prior to the meeting, telling him instead that they would be meeting to follow up on matters discussed earlier in the month. During the meeting Olson told the complainant that the respondent could not have him serving as a corporate medical director, which was an administrative position, on the one hand, and then have pending litigation on the other. Olson put his hands in the air to illustrate the point.

10. On January 19, 2009, the complainant sent an e-mail to Olson asking to review a copy of the job description, which he still had not seen. In his e-mail, the complainant stated: "I do understand your point that the organization would not want me to serve as a medical director if I have a discrimination claim pending against SMDV." Two days later Olson sent the complainant an e-mail responding to other matters raised by the complainant in his e-mail, but did not comment on the complainant's statement pertaining to the discrimination complaint.

11. On February 24, 2009, Olson e-mailed the complainant a copy of the job description. In his e-mail Olson stated, "I would suggest we put on ceasefire with the lawsuit until we can get through this process otherwise we both are just wasting attorney fees."

12. In April of 2009, Dean Health Systems engaged in lay-offs for economic reasons and Dr. Samitt, the CEO of Dean Health Systems, decided to put all non-essential projects on hold.

13. On June 30, 2009, Olson met with the complainant for his annual evaluation. During that meeting Olson told the complainant that the job was on the back burner. As of the date of this hearing, September 21, 2010, the position of corporate medical director had not yet been formalized or approved.

Based upon the above FINDINGS OF FACT the commission hereby makes the following:

1. That the respondent unlawfully retaliated against the complainant because he filed a discrimination complaint, in violation of the Wisconsin Fair Employment Act.

Based upon the above FINDINGS OF FACT and CONCLUSIONS OF LAW the commission hereby issues the following:

1. That the respondent shall cease and desist from discriminating against the complainant because he filed a discrimination complaint.

2. That the respondent shall pay the complainant's reasonable attorney fees and costs incurred in pursuing this matter.

3. That within 30 days of the expiration of time within which an appeal may be taken herein, the respondent shall submit a compliance report detailing the specific action it has taken to comply with the commission's decision. The compliance report shall be directed to the attention of Jenny Koepp, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708. The statutes provide that every day during which an employer fails to observe and comply with any order of the commission shall constitute a separate and distinct violation of the order and that, for each such violation, the employer shall forfeit not less than $10 nor more than $100 for each offense. See Wis. Stats. § § 111.395, 103.005(11) and (12).

Dated and mailed January 29, 2013
valyoke . rrr : 164 : 9

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

The Wisconsin Fair Employment Act, (hereinafter "Act"), provides that it is an act of employment discrimination:

"To discharge or otherwise discriminate against any individual because he or she has opposed any discriminatory practice under this subchapter or because he or she has made a complaint, testified or assisted in any proceeding under this subchapter."

Wis. Stat. § Sec. 111.322(3).

The statute recognizes two different kinds of protected activity, "participation" and "opposition." The "opposition" clause covers actions taken by an employee on his own to protest discrimination, whereas the "participation" clause relates directly and exclusively to the filing of charges with the agency or to assisting or participating in the investigation of a filed complaint. Notaro v. Kotecki & Radtke, S.C., ERD Case No. 8902346 (LIRC July 14, 1993).

Participation under the Act, i.e. filing a complaint, testifying, or assisting in any proceeding under the Act, is conduct that is "absolutely privileged" against retaliation. Roncaglione v. Peterson Builders, Inc., ERD Case No. 9111425 (LIRC Aug. 11, 1993). This is so because:

"Retaliation for resort to the government's own enforcement mechanisms strikes at the very heart of the government's ability to enforce the laws it has made. Therefore, filing a complaint or participating in an agency's investigation and enforcement process is afforded a higher degree of protection."

Pampuch v. Bally's Vic Tanny Health and Racquetball Club, ERD Case No. 9350083 (LIRC March 7 1994).

In fact, protection of participation is so broad that, in contrast to the law that has arisen under the opposition clause, which requires an employee to proceed in good faith, coverage of the participation clause extends even to those who have filed false or malicious charges. See, Notaro v. Kotecki & Radtke, S.C., supra, citing Pettway v. American Cast Iron Pipe Co., 411 F.2d 998, 1006, 1 FEP 752 (5th Cir. 1969) (Under Title VII there is "exceptionally broad protection" intended for protestors of discriminatory employment practices. The protection of assistance and participation in any manner would be illusory if the employer could retaliate against an employee for having assisted or participated in a commission proceeding.)

In this case, the complainant engaged in protected participation by filing a discrimination complaint with the Equal Rights Division (hereinafter "ERD"). The complainant's actions were absolutely privileged against retaliation under the Act. Roncaglione v. Peterson Builders, Inc., supra. However, shortly after filing the complaint, and after the ERD had issued an initial determination finding probable cause, the complainant was told by the respondent that his hopes of attaining a promotion hinged upon the withdrawal of the complaint. In light of the near sacrosanct nature of the statutory protections for participation, the commission is persuaded that the respondent's attempt to use the threat of denial of a promotional opportunity as leverage to get the complainant to withdraw his discrimination complaint constitutes a violation of the Act.

In arriving at this conclusion, the commission is mindful of the fact that the respondent did not ultimately fill the job in question and that there is no evidence the respondent's actions resulted in material harm to the complainant. However, an employee need not show that the employer's actions resulted in harm in order to prevail on a claim of retaliation. Ninabuck v. Consolidated Freightways & David Matthews, ERD Case No. 9000241 (LIRC Jan. 3, 1992). The issue is the employer's discriminatory action, not the effect of that action. Pederson v. LIRC, No. 159-098 (Wis. Cir. Ct. Dane County September 11, 1978).

"The purpose of the WFEA is to deter and to remedy discriminatory conduct of employers which infringes employes' civil rights. The legislature has directed that the WFEA is to be liberally construed for the accomplishment of this purpose. Wis. Stat. § 111.31(3)." Byers v. LIRC, 208 Wis. 2d 388, 398, 561 N.W.2d 678 (1997). To impose a requirement that discriminatory conduct be "material" is inconsistent with the legislature's direction that the Act be liberally construed to deter and remedy discriminatory conduct that infringes employees' civil rights. Kruschek v. Trane Co., ERD Case No. CR200603576 (LIRC Dec. 23, 2010).

In Kruschek, the commission held that, in a claim of retaliation the complainant must show:

". . . that a reasonable individual would have found the challenged action adverse, that is, it well might have dissuaded a reasonable individual from opposing any discriminatory practice under the Act or from making a complaint, testifying or assisting in any proceeding under the Act, and that context matters."

The respondent's actions in notifying the complainant that his chances for a promotion depended on the withdrawal of his discrimination complaint were actions that might well have dissuaded a reasonable individual from filing a discrimination complaint or opposing discrimination, given the clearly stated message that such conduct would be a bar to advancement within the respondent's business. The respondent's actions were adverse to the complainant, coercive, and served to undermine the broad anti-retaliation privileges to which the complainant was entitled. They were, in the view of the majority of the commission, exactly what the statute was meant to prohibit and, therefore, in violation of the Act.

NOTE: The commission conferred with the administrative law judge about witness credibility and demeanor. The administrative law judge indicated that he found Mr. Olson's version of the December 22, 2008 meeting, in which Mr. Olson testified that he told the complainant it would not look good if he had a pending charge, but did not actually tell him that he would not be considered with a pending charge, to be more credible than the complainant's version. The administrative law judge indicated that the fact Olson continued to consider the complainant for the position is evidence that his version is more credible. The commission disagrees. The fact that Olson continued to consider the complainant for the position does not mean he did not intend to use the position as leverage to get the complainant to drop his complaint. Moreover, the commission notes that the complainant sent an e-mail to Olson that reiterated his understanding of the December 22 conversation, which Olson made no effort to correct. If, in fact, the complainant had mischaracterized Olson's remarks, it stands to reason that Olson would have said so. Finally, Olson again raised the issue of the complaint in his next e-mail to the complainant, making it clear that getting the complainant to withdraw his complaint was a priority for Olson. The commission further notes that, even if it were to accept Olson's version of events, this would not alter its ultimate conclusion in this case. Telling the complainant it would not look good for him to have a pending discrimination complaint if he wanted a promotion is not meaningfully different from telling him that he would not be considered with a pending complaint. The commission would find unlawful retaliation under either scenario.

LAURIE R. MCCALLUM, Commissioner, (dissenting):

I disagree with the majority opinion, and respectfully dissent.

As the commission has consistently held, in order to prove a claim of retaliation, a complainant must show not only that he engaged in a statutorily protected activity, but also that he suffered an adverse employment action because of it. See, e.g., Gunty v. City of Waukesha, ERD Case No. 200401540 (LIRC March 31, 2010); Peters v. Saturn of Green Bay et al., ERD Case No. 200504053 (LIRC Feb. 8, 2008); Radlinger v. Kentucky Fried Chicken, ERD Case No. 200100463 (LIRC June 20, 2003).

Here, the record does not establish that the complainant suffered any adverse employment action as a result of filing his 2008 disability discrimination charge.

The comment attributed to Olson, i.e., that SMDV could not have him serving as a corporate medical director while he had a discrimination claim pending against it, does not in and of itself constitute an adverse employment action.

Although such a comment could constitute relevant evidence, for example, if the charge was that the respondent had retaliated against the complainant when it decided not to create the medical director position, the complainant is not alleging this here. Had the respondent proceeded to create the subject medical director position, the comment could be considered relevant evidence in regard to a charge that the complainant was retaliated against when he was not hired for the position. However, the fact that a certain statement may constitute relevant evidence is quite distinct from a conclusion that it is separately actionable under the WFEA.

In my opinion, the cases relied upon by the majority do not support its posture here. In both Ninabuck (deliberate failure to provide notice of required physical examination), and Pederson (negative letter of reference provided to another employer), the actions alleged to be retaliatory were immediate, concrete adverse employment actions.

Moreover, in Kruschek, the issue was not whether the allegedly retaliatory conduct (intimidating and harassing actions and comments) constituted an adverse employment action, but instead whether it was sufficiently adverse to be actionable. Again, in Kruschek, the actions, unlike those at issue here, were immediate, concrete adverse employment actions.

In my opinion, the majority's interpretation of the statute expands the law beyond what the commission and courts have found in the past and goes beyond what the statute was intended to protect. I, therefore, would affirm the administrative law judge's decision.

/s/ Laurie R. McCallum, Commissioner

cc:
Attorney Aaron N. Halstead
Attorney M. Stathas

[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]

uploaded 2013/02/12