MIKHAIL L VASERMAN, Complainant
LAKESHORE MEDICAL CLINIC LIMITED, 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 complainant in this matter, Mikhail L. Vaserman (hereinafter "complainant"), is an individual whose national origin is Russian and whose creed is Jewish.
2. The respondent, Lakeshore Medical Clinic (hereinafter "respondent") is a business operating medical clinics in Wisconsin.
3. On October 5, 2009, the complainant was hired by the respondent to work as a specialty medical assistant. The complainant was to be assigned to work with three specific doctors.
4. At the time the respondent hired the complainant it was aware of his national origin and creed.
5. When the complainant reported for work on October 12, 2009, he learned that he had been reassigned to a float position and would not be working with specific doctors. The complainant asked Laurie Bornhoffer, the individual who hired him and who was responsible for making the work assignments, why this change occurred. Ms. Bornhoffer did not provide the complainant with any explanation.
6. Medical assistants who were not in the protected class and who were hired after the complainant did not have as much education or experience as he had, but were assigned to specific doctors and not required to work as floaters. They received job-specific training, while the complainant did not.
7. All medical assistants were assigned shifts cleaning the lunch room according to a schedule posted by the respondent. On one occasion a medical assistant directed the complainant to clean the lunch room even though it was her turn to do so. She told the complainant that he had to do it because he was from Russia and spoke with an accent and suggested she should send him to clean the restrooms also. On another occasion a different medical assistant was scheduled to clean the lunch room, but told the complainant it was his job because he was newest. Other workers laughed at the complainant and said he cleaned very well, and that maybe he could do it the next day. The complainant went to Ms. Bornhoffer and to human resources about these incidents, but no action was taken.
8. On January 2, 2010, the complainant filled out a "90 day New Employee Survey" and returned it to Adam Ably, the human resources generalist. In his survey responses the complainant stated that he was concerned about some team members' unprofessional and inappropriate behavior, which he characterized as involving a variety of objectionable conduct, including discrimination and sexual harassment. The complainant asked that the respondent protect him from discrimination and sexual harassment and that it "create and maintain a healthy and equal work environment that make me feel comfortable at work." The respondent never contacted the complainant to discuss his survey responses.
9. A doctor named Dr. Lubens told the complainant two times that he was a "crazy man." This took place on or about January 26, 2010.
10. On March 4, 2010, the complainant was assigned to work with Dr. Baman. The complainant roomed a patient and later heard the patient asking Dr. Baman who the complainant was, because he had never seen the complainant before. Dr. Baman responded that the complainant was a troublemaker from Russia. He later repeated the comment. The complainant requested to not be scheduled with Dr. Baman again because of the incident.
11. On March 11, 2010, Mr. Ably met with the complainant to give him a "Documented Discussion" for conduct involving sexual harassment. The respondent had not conducted an investigation or talked to the complainant before preparing the Documented Discussion paperwork, and the complainant disputed its contents. When the complainant protested, Mr. Ably laughed and stated that this was only a discussion and not a disciplinary action. During the meeting the complainant also told Mr. Ably that he had been discriminated against by Dr. Baman and harassed by other medical assistants.
12. On April 9, 2010, the complainant was again asked to work with Dr. Baman, but refused to do so. The complainant met with Ms. Bornhoffer and told her that he wanted actions taken against Dr. Baman because of the March 10 incident. Ms. Bornhoffer asked the complainant if he knew the name of the patient involved. The complainant stated he did not know, but would find out because he remembered the date and time of the appointment.
13. The respondent did not take any action against Dr. Baman. However, it later issued a "Documented Discussion" to the complainant in conjunction with the incident for what it maintained was a potential HIPAA violation.
14. On or about April 11, 2010, the complainant submitted a request to take time off for the observance of Jewish holidays, but his request was not approved.
15. During the course of his employment other medical assistants asked the complainant for assistance in translating from English to Russian or Ukrainian, which was not part of his job description, then refused to help him when he needed it.
16. On or about May 3, 2010, the complainant notified the respondent that he planned to resign.
17. On May 10, 2010, after the complainant had already tendered his resignation, he filled out paperwork requesting discretionary leave from June 1 until July 16, 2010.
18. On May 17, 2010, the complainant's last day of work, Mr. Ably and Marie Tratnik, the assistant clinic manager, met with the complainant to give him the "Documented Discussion" about the alleged HIPAA violation referred to in paragraph 13. The complainant asked Mr. Ably why he was not receiving an exit interview but did not receive any response.
Based on the FINDINGS OF FACT made above, the commission makes the following:
1. There is probable cause to believe the respondent discriminated against the complainant based upon his national origin and creed, and because he opposed a practice of discrimination, in violation of the Wisconsin Fair Employment Act.
2.
Based on the FINDINGS OF FACT and CONCLUSIONS OF LAW made above, the commission issues the following:
The decision of the administrative law judge is reversed. The matter is remanded to the Equal Rights Division for further proceedings.
Dated and mailed
February 28, 2014
vasermi_rrr . doc : 164 : 642 649
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
This case is before the commission on probable cause. The complainant's burden of proof in a probable cause proceeding is low. Wallace v. Certifying Service Express, ERD Case No. 200203258 (LIRC Dec. 13, 2004); Buska v. Central Bldg. Maintenance, ERD Case No. 9200725 (LIRC Sept. 28, 1995). While the commission has generally held that a complainant is required to do more than establish a prima facie case in order to sustain his or her burden of establishing probable cause to believe that unlawful discrimination has occurred, absent the respondent's presentation of evidence of a legitimate, nondiscriminatory reason for its actions, that is not the case. A finding of probable cause results where the respondent has offered no evidence at the hearing to rebut the complainant's prima facie case. Nevels-Ealy v. County of Milwaukee, ERD Case No. 200503213 (LIRC March 14, 2008), citing Gunderson v. Bonded Spirits Corp., ERD Case No. 8351917 (LIRC July 17, 1986).
In this case, the respondent appeared at the hearing without counsel, and then chose to introduce no evidence on its own behalf. Consequently, the complainant's evidence went unrebutted. While the complainant's evidence may be somewhat minimal, and while not all of his allegations support a finding of probable cause, the commission believes that the complainant has generally satisfied his burden of establishing a prima facie case of discriminatory terms and conditions of employment based upon his national origin and/or religion and based upon his protected conduct, such that, in the absence of any evidence by the respondent, a finding of probable cause is warranted.
The complainant testified that he was hired for a specialty medical assistant job assigned to specific doctors, but was later made to work as a floater. The respondent would not give him a reason why this occurred, even when he asked. The complainant contended that non-Russian, and presumably non-Jewish, employees with less educational background and practical experience were hired after the complainant but were not required to work as floaters. Although the administrative law judge found that the complainant's creed and national ancestry played no role in the respondent's decision to change his work assignment, no evidence was presented to support that finding -- the record offers no clue as to why the assignment was changed.
Next, the complainant testified that employees laughed at his Russian accent, made jokes at his expense, and that one co-worker made him clean the lunch room even though it was her turn, stating it was because he was Russian. The complainant complained about this, but nothing was done. (1) The complainant also filled out a 90-day New Employee Survey in which he indicated that discrimination was occurring in the workplace, but the respondent did not respond to his complaints. Instead, the complainant was later given a "Documented Discussion" for conduct involving sexual harassment, which he believed was a fabricated charge in retaliation for his prior complaints. While the administrative law judge found that the Documented Discussion was "not affected in any way" by the complainant's complaints of harassment and discrimination, there is no support for this conclusion in the record. The complainant effectively denied engaging in sexual harassment, and the respondent introduced no evidence allowing a conclusion as to its motivations in issuing the Documented Discussion.
The complainant also testified that a doctor described him to a patient as a "Russian troublemaker," and that, although he complained, no action was taken against the doctor. Instead, the complainant was written up for a potential HIPAA violation related to the manner in which he obtained information about what patient the doctor was talking to when the statement was made. Although the administrative law judge indicated that he did not find it believable that Dr. Baman made the statement in question, given that the complainant was standing outside of the examining room and overheard it through a closed door, the complainant's testimony was simply that he heard Dr. Baman make the statement to the patient -- he did not state that he was outside of the room when the comment was made. The complainant's unrebutted evidence supports a conclusion that one of the respondent's employees made comments about the complainant's national origin which he perceived as offensive and that the respondent was unresponsive to the complainant's complaints.
The evidence summarized above is sufficient to support a finding of probable cause to believe that the complainant was discriminated against in the terms and conditions of his employment based upon his national origin, creed, and in retaliation for having complained to the respondent about discrimination. The complainant is therefore entitled to a hearing on the merits of his complaint. The parties should be advised that the remand hearing is an entirely new hearing which does not incorporate the record from the probable cause hearing. Evidence may be presented with respect to all of the allegations that were raised at the probable cause hearing, even if the commission has not specifically discussed them in its decision, including with regard to the denial of time off for Jewish holidays. (2)
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