SUE A PERKINS, Complainant
ROGERS MEMORIAL HOSPITAL, Respondent
An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.
The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:
1. In paragraph 7 of the ALJ's FINDINGS OF FACT, replace the "[?]" with the word "mileau [sic]". In the last sentence of the paragraph, replace the word "his" with the word "high", and replace the abbreviation "nsy" with the abbreviation "nsg".
2. In paragraph 8 of the ALJ's FINDINGS OF FACT, after the abbreviation "SSA", insert: "[Selective Severity Assessment]". In the fifth sentence of the quoted material in the paragraph, change the phrase "to complete and incident report" to "to complete an incident report".
3. In paragraph 11 of the ALJ's FINDINGS OF FACT, replace the "(?)" with the word "and".
4. In paragraph 12 of the ALJ's FINDINGS OF FACT, in the third sentence of the second paragraph of quoted material, change the word "proceeding" to the word "preceding", and in the last sentence of the second paragraph of quoted material, change the word "mediate" to "medicate".
5. In the first sentence of paragraph 17 of the ALJ's FINDINGS OF FACT, change "Ms. Perkins" to "Ms. Perkins'".
6. Delete paragraph 2 of the ALJ's CONCLUSIONS OF LAW, and replace it with the following:
During Ms. Perkins' employment, no one in management at RMH formed a belief that Ms. Perkins expressed opposition to discrimination on the basis of age.
7. In the first sentence of the ALJ's MEMORANDUM OPINION, delete the phrase "refusing to hire or employ him because of his conviction record", and replace it with "discriminating against her or terminating her employment because of age or because of her opposition to a discriminatory practice under the WFEL".
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed
February 28, 2014
perkisu_rmd . doc : 107 : 5 121.5
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
The complainant also correctly argued, however, that it does not matter whether she established a prima facie case according to Puetz, supra, because the respondent articulated a legitimate non-discriminatory reason for discharging her, which moves the case directly to the question of whether that proffered non-discriminatory reason was a pretext for discrimination. The commission has observed that:
. . . if an employer articulates a legitimate non-discriminatory reason for a discharge or other employment action, the issue of whether the complainant has established a prima facie case becomes moot. Instead, once such a reason is articulated, the burden of proof reverts to the complainant to show that this reason is a pretext for discrimination. U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715, 31 FEP 609, 611 (1983); Naill v. Western Wisconsin Technical College (LIRC, 02/12/99); Kurtz v. School Dist. of St. Croix Falls (LIRC, June 10, 1993); Duarte-Vestar v. Goodwill Industries (LIRC, Nov. 9, 1990); Mouncil v. Pepsi Cola (LIRC, Feb. 16, 1989).
Stern v. RF Technologies, Inc., ERD Case No. 200200780 (LIRC Feb. 6, 2004).
The complainant bears the burden of showing the respondent's articulated reason was a pretext for discrimination, and may attempt to meet that burden by showing that the reason: 1) had no basis in fact; 2) did not actually motivate the discharge; or 3) was insufficient to motivate the discharge. Sult v. Jerry's Enterprises, Inc., ERD Case No. CR200402634 (LIRC Feb. 8, 2008). Proof of any one of these factors, however, does not guarantee that the complainant has carried its burden on pretext. Circumstances may indicate that an employer acted on false information as a result of mistake or some motive other than discrimination. The important consideration is whether the proffered non-discriminatory reason is honestly believed by the respondent, not whether it is accurate. As the commission noted in Rase v. Interim Health Care, ERD Case No. CR200900791 (LIRC July 16, 2013):
If a respondent-employer articulates a nondiscriminatory reason for its action, the complainant bears the burden of showing that the articulated reason is a pretext for impermissible discrimination. The focus of a pretext inquiry is on whether the employer's stated reason for an action is honest, not whether it is accurate, wise, or well-considered:
...if the respondent genuinely believed its asserted nondiscriminatory reason to be true, even if it was mistaken, the respondent cannot be found to have had discriminatory intent. Engen v. Harbor Campus, ERD Case No. CR200400475 (LIRC Feb. 22, 2008). As noted in Gordon v. United Airlines, Inc., 246 F.3d 878, 889 (7th Cir. 2001), citing Stewart v. Henderson, 207 F.3d 374 (7th Cir. 2000), courts do not sit as a superpersonnel department to second guess an employer's business decision.
Thobaben v. Waupaca Sheriff's Department, ERD Case No. 200602483 (LIRC Dec. 23, 2011).
In this case, the respondent cited the complainant for three incidents when it terminated her employment -- first, failing to immediately acknowledge and act on a patient's abnormally high blood pressure; second, re-writing medical information about a patient onto a selective severity assessment (SSA) form, and continuing to do so after being told to stop more than once; and third, failing to accurately assess a patient. The complainant's attack on these reasons was that they had no basis in fact. The commission concludes that the respondent honestly believed that the complainant was at fault in these three incidents, and that its belief actually motivated the respondent to discharge the complainant. Therefore, the commission concludes that there was no probable cause to believe that the respondent acted on a discriminatory motive when it discharged the complainant.
With respect to the first issue, the complainant denies failing to acknowledge the patient's high blood pressure or failing to take immediate action. She asserts that when she began her work on the day in question, the initial information she received from other medical staff concerning the patient's condition was that the patient was stable and was eating breakfast, and it was only upon the patient's return from breakfast that she learned of the patient's high blood pressure, at which time she took the appropriate immediate action of calling for a doctor.
The individual primarily responsible for the decision to discharge the complainant, Kathleen Anglehart, believed differently. Anglehart testified that she interviewed the psychiatric technician who took the patient's blood pressure on the morning in question, and understood that the technician reported the patient's high blood pressure to the complainant twice, but that the complainant did not take action until urged to do so by both the psychiatric technician and another nurse on duty at the time. (2) There was no evidence that the psychiatric technician or the nurse had any animosity against the complainant because of her age, and there was no reason to doubt that Anglehart honestly relied on their statements. Anglehart's reliance was a non-discriminatory motive for the decision to discharge the complainant.
With respect to the second issue, the complainant testified that a doctor complained to her that the doctor could not read certain medical information about a patient that was entered on a selective severity assessment (SSA) form, and instructed the complainant to copy the information so that the doctor could read it. The complainant chose to copy this information onto a blank SSA form. She testified that it was not her intention to discard the original SSA form and replace it with the new form, but simply to use the form to fill in the information for the doctor. Anglehart, however, gave firsthand testimony that she saw the complainant copying the information onto a blank SSA form, and had to tell the complainant repeatedly to stop creating the new form, and to destroy it. Although the ALJ found that it was not the complainant's intent to create a new SSA form to replace the original, which would have constituted a falsification of a medical record, he also found that Anglehart sincerely believed that the complainant intended to destroy the original and replace it with her copy. The commission credits Anglehart's testimony that she had to tell the complainant repeatedly to stop copying information onto a new medical form before the complainant stopped doing so, and based on that, agrees with the ALJ's conclusion that Anglehart honestly believed that the complainant intended to complete her copy of the SSA form and substitute it for the original.
With respect to the third issue, the information on which the respondent relied in concluding that the complainant had not accurately assessed a patient came from another nurse, Debra Gatzke, who re-assessed the patient and questioned whether the complainant's earlier assessment that day, particularly her finding that the patient had a tongue tremor, and her resulting recommendation of treatment with the drug Librium, was accurate. The commission does not find reason to doubt the sincerity of the respondent's conclusion that Gatzke's re-assessment was more accurate than the complainant's assessment.
In declining to infer a discriminatory motive on the part of the respondent, the commission has considered the relevant circumstances, along with the testimony of the witnesses. Clearly, the complainant was in the protected class, being 65 years old at the time of her discharge, but there was little else in the record to support an inference of age discrimination. The complainant was in the protected age group (58 years old) when she was hired. There was no proof that other employees younger than the complainant were similarly situated to the complainant and more favorably treated. There was no showing of negative age-related comments by anyone who had influence over the decision to discharge the employee. The individual principally responsible for the discharge decision, Anglehart, was, like the complainant, in the protected age category (55 years old at the time of the discharge), and denied knowing the complainant's age. The other individual responsible for the discharge decision, director of nursing Janet McClintock, was 59 years old at the time of the discharge, and also denied knowing the complainant's age. The individual who replaced the complainant was also in the protected age category (either 54 or 55 years old at the time). These facts undermine the contention that age discrimination was a motivating factor in the complainant's discharge. Huston v. Piggly Wiggly/Lena's Food Market, ERD Case No. CR201003484 (LIRC Feb. 28, 2013); Rudd v. Watson Pharmaceuticals, ERD Case No. CR200702388 (LIRC May 27, 2010).
The complainant also argued that her termination from employment was in retaliation for complaining to the respondent about age discrimination. The elements of a complaint of retaliation are that: 1) the complainant engaged in some statutorily protected expression-in this case, opposition to perceived discrimination on the basis of age; 2) the complainant suffered an adverse employment action; and 3) there was a causal connection between the protected expression and the adverse action. Acharya v. Carroll, 152 Wis.2d 330, 448 N.W.2d 275 (Ct. App. 1989). The evidentiary record contains only one instance in which the complainant alleged that she expressed opposition to discrimination based on age, and that there was a causal connection between that opposition and her termination. The complainant alleged that she complained to Anglehart that Monica Pope-Wright, a supervisor, was sending her home early when patient numbers were low more often than she sent other nurses home, and believed it was because of her age. The complainant could only mark her complaint to Anglehart as happening "sometime in 2008." Although the complainant repeated her complaint about being "low-censused" a number of times, this was the only occasion when she indicated to management that she felt she was being treated differently because of age. Her discharge did not occur until about two years later.
The respondent disputed the complainant's testimony that she expressed opposition to discrimination because of age, raising a credibility issue. Anglehart denied that the complainant ever told her that she thought she was being low-censused by Pope-Wright because of her age, and there is good reason to credit this testimony. The complainant testified that at about the same time she complained to Anglehart about Pope-Wright low-censusing her because of age, she complained to the director of nursing, Janet McClintock, about being low-censused, but testified that she told McClintock she didn't know why Pope-Wright was low-censusing her. The complainant also testified that she was afraid to bring up her age, and did not really want anybody to know her age. Anglehart and McClintock both testified that they were unaware of the complainant's age.
It is essential to a complaint of retaliation that the complainant show that the employer believed the complainant has raised some kind of claim that discrimination has occurred. If an employer does not have such a belief, it cannot be motivated by it. Cangelosi v. Robert E. Larson and Associates, Inc., ERD Case No. 8821554 (LIRC Nov. 9, 1990). The ALJ found that at no time did anyone in management form a belief that the complainant had expressed opposition to discrimination because of age, and the commission defers to the credibility determination of the ALJ. Furthermore, even if the complainant had expressed opposition to perceived age discrimination, the commission finds, as discussed above, that the complainant failed to show the respondent's proffered non-discriminatory reasons for terminating the complainant's employment were pretextual. For the above reasons the commission affirms the decision of the ALJ, with the modifications noted.
cc:
Attorney Stephanie Brown
Attorney Daniel Miller
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