KRYSTYNA E PASKIEWICZ, Complainant

MARSHFIELD CLINIC
MINOCQUA CENTER, 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 the first sentence of paragraph 8 of the ALJ's FINDINGS OF FACT, delete the word "error". In the second sentence, delete the phrase "discovered the error" and replace it with the phrase "formed the opinion that this measurement was in error". In the third sentence, delete the phrase "the error" and replace it with the phrase "his opinion".

2. In the second sentence of paragraph 9 of the ALJ's FINDINGS OF FACT, delete the phrase "incorrect information because of the error made by Ms. Paskiewicz" and replace it with the phrase "the PISA measurement believed to be in error". In the third sentence, insert the word "alleged" before the word "error". In the fourth sentence, delete the phrase "the error Ms. Paskiewicz had made was a very serious error" and replace it with the phrase "Ms. Paskiewicz had made a very serious error".

3. In the first sentence of paragraph 11 of the ALJ's FINDINGS OF FACT, delete the phrase "went to the heart lab,". In the fourth sentence, delete the phrase "she had not sent to Dr. Seidlist originally" and replace it with the phrase "she had not selected for Dr. Seidlist's report".

4. In the first sentence of paragraph 12 of the ALJ's FINDINGS OF FACT, insert the word "alleged" immediately before "PISA error". Delete the third sentence.

5. In the first sentence of paragraph 15 of the ALJ's FINDINGS OF FACT, delete the phrase "did not add" and replace it with "added".

The decision of the administrative law judge (copy attached), as modified, is affirmed.

Dated and mailed June 27, 2014

paskikr_rmd . doc : 107 : 5

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

The first argument that the complainant makes in her petition for review is that her post-hearing motion to reopen the hearing and allow additional documents into evidence should have been granted. This is actually a renewal of a request made by the complainant's attorney shortly before the hearing to have certain records subpoenaed for the hearing. In a telephone conference with the parties held two days before the hearing, the ALJ did not grant the attorney's request, but instructed the respondent to gather and produce what it reasonably could prior to hearing. There is no allegation that the respondent failed to follow that instruction.

A complainant's request for a subpoena was a discretionary matter for the ALJ. The standard for the commission's review, then, is whether the ALJ's ruling was an abuse of discretion. Kutschenreuter and Schoenleber v. Roberts Trucking, Inc., ERD Case Nos. 200501465 & 200501422 (LIRC Apr. 21, 2011). Under that standard, a ruling will be sustained so long as the ALJ "examined the relevant facts, applied a proper standard of law, and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach." Loy v. Bunderson, 107 Wis.2d 400, 415, 320 N.W.2d 175 (1982); Paytes v. Kost, 167 Wis.2d 387, 393, 482 N.W.2d 130 (Ct. App. 1992). The ALJ's denial of the subpoena request met that standard. The complainant had a period of approximately 17 months prior to hearing during which she was permitted to use all the tools of discovery set out in Wis. Stat. ch. 804 (Wis. Admin. Code § 218.14(3)), but she failed to conduct any discovery until making the eleventh hour subpoena request. As part of the discovery process, a party's attorney of record could have issued and served a subpoena for witnesses and documents without prior approval from the ALJ (Wis. Admin. Code § 218.15(1)), but the complainant's attorney never did so, and instead made the very late request to the ALJ for issuance of a subpoena. By the time of the telephone conference on the request, a mere two days before the hearing, an allowance of the requested subpoena surely would have caused a delay in the hearing, giving an undeserved reward to the complainant for being dilatory in her preparations for hearing. It was not an abuse of discretion to turn down the request under these circumstances. Chacon v. Dairy Equipment Company, ERD Case No. 8822318 (LIRC Feb. 15, 1991); Vaisman v. Aldridge, Inc., ERD Case No. 8751142 (LIRC Oct. 21, 1991) ("If the documents are requested shortly before the hearing the court is justified in denying the request.").

The complainant's renewal of her request in a post-hearing motion has less merit than her pre-hearing request, since a remand to allow evidence after hearing would only be appropriate if the evidence is newly discovered and could not have been discovered prior to hearing by due diligence. Patek v. Waukesha Engine Division, Dresser Indus., ERD Case No. 9433716 (LIRC Aug. 31, 1995). As noted above, that was not the case here.

As argued by the complainant in her post-hearing brief, the incidents of discrimination on the basis of national origin occurred in the winter and spring of 2008, and were in the nature of mocking by co-workers of the complainant's accent. The complainant alleged no subsequent incidents of a similar nature. Because these incidents occurred approximately two years before the complainant filed her complaint, and no similar incident was alleged to have occurred within 300 days of the filing, the allegations are untimely. Bowen v. Stroh Die Casting Co., Inc., ERD Case No. CR200301568 (LIRC Oct. 28, 2011). The complainant characterized all adverse actions that occurred within the 300-day filing period as retaliatory acts for having opposed discrimination.

The elements of a prima facie case of retaliation for opposing a discriminatory practice are that the complainant engaged in statutorily protected opposition, the respondent took an adverse employment action against her, and there was a causal connection between the two. The ALJ found that the complainant expressed opposition to perceived discriminatory conduct (the mocking by her co-workers) in February and May, 2008, but made no formal complaints after that time alleging that she was the victim of discrimination because of her national origin. The ALJ acknowledged that there were other times when the complainant complained about some act of the respondent as being "discriminatory," but that she never expressed on those occasions that those acts were based on her national origin. The complainant also acknowledged that this was true. (Tr. of hearing, pp. 50-51). There was no evidence to support a finding that, subsequent to May 2008, the respondent understood any of the complainant's complaints to the respondent to be complaints of national origin discrimination.

The evidence supports the ALJ's finding that the respondent's human resources manager reacted to the complainant's allegations of national origin discrimination in February 2008 by gathering information and concluding that the complainant's co-workers had not harassed her because of her national origin. The evidence further supports the ALJ's finding that, nevertheless, as a precaution, the human resources manager reviewed the respondent's anti-harassment policy and complaint procedure with the employees, and followed up with the complainant by asking her if the conduct that was unacceptable to her had stopped. These facts do not indicate that the respondent in any way disapproved of the complainant's opposition to what she perceived to be harassment based on her national origin. As found by the ALJ, the complainant, in response to the follow-up inquiry, accused two co-workers of making sounds and gestures ridiculing her during a meeting on May 1, 2008. According to the complainant's response, her manager, who was present at the meeting, did not put a stop to the co-workers' behavior, but the complainant understood that her manager took action against the harassers and notified the human resources manager. There was no request in this response for any further action by the respondent. The complainant, in her petition for review, argues that she asked her manager on May 14, 2008 why she did not intervene to stop the behavior at the May 1st meeting, and that in reply her manager "attacked" her and yelled at her. The evidentiary record does not support this characterization. The record simply shows that the manager replied that she did not observe the allegedly offensive behavior at the May 1st meeting. The immediate reaction, then, to the complainant's only complaints of discriminatory treatment explicitly based on her national origin, does not support the conclusion that the respondent had any animosity against her for making her complaint.

As noted by the ALJ, the respondent took some actions that were adverse to the complainant that were within the 300-day filing period, such as: (1) issuing her a notice of policy violation in July 2009 indicating that she had not sent the results of a sonogram to providers in a timely manner, and that she had not demonstrated teamwork in responding to a directive; (2) reducing the complainant's hours in August 2009; (3) suspending her in December 2009 for making a PISA measurement error; and (4) discharging her in December 2009 for altering a medical record. The complainant attempted to tie these adverse actions to animosity against her for having complained long ago about harassment due to her foreign accent, but her argument about the existence of a retaliatory motive was built on speculation and unproven allegations of conspiracy. The complainant challenged many of the findings of the ALJ because they failed to address various speculative assertions that she made.(1) For the most part, these challenges are meritless. There is no requirement that an ALJ's decision provide a detailed account as to the resolution of all the evidence offered at the hearing. All that is required is that the ALJ adequately explain the basis for the decision. Patterson v. City of Milwaukee Dept. of Health, ERD Case No. 9150465 (LIRC Apr. 20, 1993). Findings not explicitly made may be inferred from other properly made findings or from the evidence in the record. Polesky v. United Brake Parts, ERD Case No. 9250821 (LIRC Aug. 30, 1996). The ALJ, by finding that there was no reason to believe that the respondent discriminated against the complainant or terminated her employment because of opposition to discrimination, implicitly found no causal connection between the complainant's opposition to perceived discriminatory conduct based on her national origin and any of the adverse employment actions taken against her. The evidence supports those implicit findings.

In one respect, however, the ALJ's findings have been modified, but the modification does not change the outcome of the case. The ALJ found as a matter of fact that the complainant made an error in the PISA measurements(2) of a patient and submitted the erroneous measurements to the patient's doctor, Dr. Seidlist, on or about November 25, 2009. The question of whether the complainant erred, however, was in dispute, and the respondent did not present competent evidence to support a finding that the complainant erred. The witnesses who testified for the respondent were not qualified to express opinions on the subject, and the documentary evidence indicating that the measurements were in error was hearsay. Even though, however, the respondent's evidence did not support a finding that the complainant's PISA measurements actually were in error, it did support a finding that the respondent had reached the opinion that the measurements were in error. Indeed, it was not disputed by the complainant that the respondent stated that opinion to her when it suspended her.

The respondent, then, articulated a non-retaliatory reason for suspending the complainant, namely, its belief that she had made a serious error in making PISA measurements for a patient. Whether this non-retaliatory reason was objectively correct is irrelevant if it appears that the respondent genuinely believed it to be true. Engen v. Harbor Campus, ERD Case No. CR200400475 (LIRC Feb. 22, 2008). The burden was on the complainant to show the reason to be a pretext for retaliatory conduct. Monroe v. Birdseye Foods, ERD Case No. CR200304303 (LIRC Mar. 31, 2010). The complainant failed to meet this burden. The respondent asserted that it relied on the opinions of two of its doctors, Dr. Thomas Roy and Dr. Nicholas Wyskoarko, to the effect that there was a significant error in the PISA measurement at issue. There was no substantial basis in the evidence to infer that the opinion of the two doctors was influenced by the complainant's national origin or by the fact that the complainant had made a complaint in February 2008 concerning mocking of her foreign accent by her co-workers.

With respect to the termination, for which the respondent's non-retaliatory reason was the complainant's alteration of a medical record without authorization, the complainant did not dispute that after the physician signed a report based on certain PISA views and measurements selected by the complainant, the complainant added PISA views and measurements that had not been a basis for the physician's report. Since this was not disputed, the ALJ's finding that it was a matter of fact rather than opinion was supported. The complainant failed to show probable cause to believe that termination based on the complainant's admitted act was retaliatory.

cc: Attorney Lynn Stathas
Attorney Rudolph Perhalla

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(1)( Back ) A number of these challenges were not only speculative, but they relied on material outside the evidentiary record.

(2)( Back ) Although the commission did not find a full explanation of this term, it takes notice that PISA stands for proximal isovelocity surface area, and that PISA measurements are made using echocardiography. 

uploaded 2014/08/15