MICHAEL D WHITE, Complainant
GILMAN CARE CENTER LLC, 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, Gilman Care Center, LLC (hereinafter "respondent"), is a 50-bed skilled nursing facility located in Gilman, WI.
2. The complainant, Michael D. White (hereinafter "complainant"), began working for the respondent in 2008 as a certified nursing assistant (hereinafter "CNA.") The complainant's wife, Janice White, and his daughter, Jessica Schmitt, also worked for the respondent as CNAs. His wife was the lead CNA. (1)
3. During the course of his employment the complainant, as well as his wife and daughter, all worked overtime hours at various times and did not always take breaks.
4. On August 12, 2010, the respondent held a staff meeting to discuss a number of issues, including overtime and breaks. At this meeting employees were told they were required to get authorization to work overtime and were required to take half-hour breaks. The complainant stated that he did not have time to take breaks.
5. On August 16, 2010, the respondent hired a new administrator, Jahn Bradley. Mr. Bradley decided that the best way to get employees to take their breaks or to stop working overtime was to not pay them for the time. Accordingly, Mr. Bradley adjusted the complainant's time sheets for the month of August by crossing off overtime hours that the complainant had recorded and writing in shorter periods of time. He did the same on the complainant's wife's and daughter's timesheets.
6. On August 26, 2010, the complainant complained to Mr. Bradley about not getting paid for overtime that he and his wife had worked. The complainant told Mr. Bradley that he had called the State of Wisconsin Department of Workforce Development (hereinafter "DWD") to ask if the respondent could legally withhold overtime and was told the practice was not legal. The complainant stated that if the respondent did not pay his overtime he would contact DWD and OSHA. Mr. Bradley told the complainant he was not familiar with the law but would get back to him. A meeting was scheduled on August 31 to discuss the matter further.
7. At some point Mr. Bradley learned that it was not legal to not pay employees for breaks or overtime. The respondent repaid the complainant and other employees for overtime and breaks that had been improperly removed from their timesheets.
8. On August 31, 2010, Mr. Bradley, Cindy Nelson, (2) and Erin McElhenny, the Director of Nursing (hereinafter "DON"), met with the complainant and his wife to discuss breaks and overtime. The complainant and his wife explained that they did not take breaks because there was too much work to be done and they could not leave residents unattended. Ms. McElhenny, the DON, did not offer any plan or suggestion as to how the complainant and his wife could take their breaks without neglecting residents.
9. During the August 31, 2010 meeting the respondent asked the complainant and his wife to each sign a Corrective Action Notice. The Corrective Action Notice form contains a section entitled "Statement of problem (violation of policies, standards, practices or unsatisfactory performance)." On that section of the complainant's Corrective Action Notice the respondent wrote: "consistent overtime, inappropriate conduct; verbal threats to administrator re: calls to state, OSHA." The complainant reviewed the document and asked that it be rewritten to reflect the fact that he did not threaten to call DWD, but had actually made the call. The respondent then crossed off the phrase "verbal threats to administrator re: calls to state, OSHA" and wrote, "stated he called state & OSHA and Dept. of Workf."
10. After the complainant explained that he had already called DWD, Ms. Nelson became very agitated, jumped off the desk where she was sitting and said something to the effect of, "Do you realize what you have done? I can't believe you did this to the residents."
11. The Corrective Action Notice issued to the complainant also stated, under a section entitled "summary of corrective action to be taken," "new overtime policy formally begins 9/1/10. There will be no overtime thereafter unless approved." The document stated that consequences for failure to take the corrective action outlined above would be termination. The notice made no reference to breaks.
12. A similar Corrective Action Notice was presented to the complainant's wife, but without the statement regarding inappropriate conduct and threats to contact the State and OSHA.
13. Later that evening, while working his shift, the complainant approached the DON and loudly stated, "There are two-people transfers down there and lights going off. You need more help." The complainant then left to answer the call lights. He subsequently returned to the nurses' station and told the DON in a loud voice, "On that little sheet of paper you wrote up, if my wife and I had seen "termination" in the corner we would not have signed it." The complainant then walked away.
14. The following day, September 1, 2010, the complainant, his wife, and his daughter heard through another employee that they were being discharged.
15. The next morning, September 2, 2010, the complainant contacted Mr. Bradley, who confirmed that he and his wife and daughter were all being fired. That day Mr. Bradley sent the complainant a letter stating:
Concurrent with our conversation on 9/2/2010 regarding your employment status, this written documentation is stating your termination from the Gilman Care Center effective 9/2/2010.
Discussed in our meeting, these are the following reasons for you [sic] termination:
1. Valid concerns by co-workers
2. Poor performance
3. Poor adherence to work policies and procedures
4. Insubordination and Threats to Director of Nursing
. . .
16. The complainant's wife and daughter received identical letters, minus discharge reason #2 and the statement about threats to the DON.
17. The decision to discharge the complainant, his wife and daughter was made after the August 31, 2010 meeting by Mr. Bradley in consultation with Ms. Nelson, Ms. McElhenny, and Mr. Halbeib, the owner of the facility.
18. The complainant was discharged because he told the respondent he had contacted DWD about his wages.
Based on the foregoing FINDINGS OF FACT the commission hereby makes the following:
Based upon the foregoing FINDINGS OF FACT and CONCLUSIONS OF LAW the commission hereby issues the following:
1. Time within which respondent must comply with Order. The respondent shall comply with all of the terms of this Order within 30 days of the date on which this decision becomes final. This decision will become final if it is not timely appealed, or, if it is timely appealed, it will become final if it is affirmed by a reviewing court and the decision of that court is not timely appealed.
2. That the respondent shall make the complainant whole for all losses in pay and benefits the complainant suffered by reason of its unlawful conduct by paying the complainant the amount he would have earned as an employee had his employment not been terminated from September 2, 2010, until the date of the complainant's death. The back pay for the period shall be computed on a calendar quarterly basis with an offset for any interim earnings during each calendar quarter. Any unemployment compensation or welfare benefits received by the complainant during the above period shall not reduce the amount of back pay otherwise allowable, but shall be withheld by the respondent and paid to the Unemployment Insurance Reserve Fund or the applicable welfare agency. Additionally, the amount payable to the complainant after all statutory setoffs have been deducted shall be increased by interest at the rate of 12 percent simple. For each calendar quarter, interest on the net amount of back pay due (i.e., the amount of back pay due after set-off) shall be computed from the last day of each such calendar quarter to the day of payment. Pending any and all appeals from this Order, the total back pay will be the total of all such amounts.
3. That within 30 days of the date on which this decision becomes final, the respondent shall file with the commission a Compliance Report detailing the specific actions it has taken to comply with this Order. The Compliance Report shall be prepared using the "Compliance Report" form which has been provided with this decision. The respondent shall submit a copy of the Compliance Report to the complainant at the same time that it is submitted to the commission. Within 10 days from the date the copy of the Compliance Report is submitted to the complainant, the complainant shall file with the commission and serve on the respondent a response to the Compliance Report.
Notwithstanding any other actions a respondent may take in compliance with this Order, a failure to timely submit the Compliance Report required by this paragraph is a separate and distinct violation of this Order. 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. Stat. § § 111.395, 103.005(11) and (12).
Dated and mailed
July 21, 2014
whitemi_rrr . doc : 164 : 5 134.1
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
In order to establish a prima facie case of unlawful retaliation under the Wisconsin Fair Employment Act (hereinafter "Act"), the complainant must show that 1) he engaged in statutorily protected conduct; 2) the employer took an adverse action against him; and 3) a causal connection exists between these two things. A prima facie case of retaliation gives rise to a rebuttable presumption that the Act was violated. The respondent may rebut that presumption by articulating a legitimate, non-retaliatory reason for its action. If the respondent meets that burden of production, the complainant must present evidence that the proffered reason for the action was pretextual. That showing may be made by circumstantial evidence from which the trier of fact could reasonably infer that retaliation was a determining factor in the employment decision. Acharya v. Carroll, 152 Wis. 2d 330, 340, 448 N.W.2d 275 (Ct. App. 1989).
The Act prohibits discharging or otherwise discriminating against any individual because he files a wage complaint or attempts to enforce a right under the wage and hour law, or because the employer believes he engaged in or may engage in that activity. Wis. Stat. § 111.322(2m). The respondent clearly had reason to believe that the complainant had attempted to enforce a right under the wage and hour law or might do so. It is undisputed that, in the course of an ongoing disagreement about overtime pay, the complainant told the respondent he had contacted DWD regarding the legality of the respondent's overtime payment practices and had been told that the respondent could not legally withhold his pay. The complainant additionally advised the respondent that if it did not pay his overtime he would contact the State and OSHA. These statements were originally made on August 26, 2010, and were reiterated on August 31.
It is also undisputed that the complainant was discharged. The decision to discharge the complainant was made on either August 31 or September 1, 2010, and was communicated to the complainant on September 2, 2010.
That leaves the question of whether the evidence establishes a causal connection between the complainant's protected activity and his discharge. A causal connection between protected activity and an adverse employment action may be inferred from the proximity in time between the protected action and the alleged retaliation. Potts v. Magna Publications, ERD Case No. 199701821 (LIRC Feb. 27, 2001). The evidence demonstrates a close proximity between the protected action and the alleged retaliation, as well as other circumstances suggesting a causal connection between the two. The respondent hired a new administrator just a few weeks before the complainant was discharged. The new administrator decided to stop paying the complainant for overtime and breaks as a means of getting him to stop working overtime and to stop working through his breaks. The complainant complained to the administrator about his pay, which was in fact being illegally withheld, and told him that he had contacted DWD about the issue. A meeting was held to discuss the matter, at which the respondent made it clear that it regarded threats to contact DWD or other governmental agencies as being a policy violation or performance problem warranting corrective action. During that meeting the complainant confirmed that he had gone beyond threatening to contact DWD, and had actually made the call. One of the respondent's representatives at the meeting, who was also involved in the discharge decision, became quite agitated when she learned the complainant had contacted DWD and indicated that she could not believe he had done that. Although the record does not clearly establish when the discharge decision was made, within two days of the meeting in question the complainant was notified that he no longer had a job. These facts strongly suggest a causal connection between the protected conduct and the discharge.
The respondent has presented a variety of explanations for the discharge. In the discharge letter it sent the complainant the respondent indicated that it was terminating his employment for four reasons: 1) valid concerns by co-workers, 2) poor performance, 3) poor adherence to work policies and procedures, and 4) insubordination and threats to the DON.
However, the only evidence of "valid concerns by co-workers" was testimony by Mr. Bradley that, after the complainant was discharged, other employees told him they were glad the complainant and his wife and daughter were gone because they felt threatened by them. The respondent presented nothing to suggest that the complainant had received any prior warnings about his interactions with co-workers, and there is no evidence in the record to suggest that any incident involving the complainant's co-workers precipitated the discharge. The respondent also introduced no evidence showing that the complainant's work performance was poor, no examples of the alleged failures in good performance, and no performance reviews that would support this contention. With respect to the complainant's alleged failures to adhere to policies and procedures, the evidence indicates that the complainant was warned on August 31, 2010, that, starting on September 1, he would need to take breaks and could not work overtime without authorization or he would be discharged. There is no evidence to suggest that the complainant worked unauthorized overtime or failed to take breaks after receiving this warning, and he was discharged on September 2 without being given any opportunity to conform his conduct to the respondent's expectations. Finally, the only evidence in the record regarding the alleged insubordination and threats to the DON is the DON's written statement, which indicates that on August 31, 2010 the complainant loudly complained to her that the facility was understaffed, after which he returned to work, and that he later expressed regret about having signed the Corrective Action Notice. There is no evidence to indicate that the complainant threatened the DON or was insubordinate, and although the respondent refers to the incident as an "altercation," it does not appear to be so serious a matter as to have been the cause of the complainant's discharge. Moreover, given that the complainant's statements to the DON were related to his underlying protected activity, the commission is not persuaded that they would constitute a legitimate, nondiscriminatory reason for terminating the employment relationship.
At the hearing the respondent offered an additional reason for discharging the complainant that was not reflected in the discharge letter. Mr. Bradley testified that he was brought in to change the "culture" of the facility, and that the complainant was discharged because he did not represent the "culture" Mr. Bradley wanted. Mr. Bradley provided two examples of conduct by the complainant that he considered inconsistent with the culture he hoped to create. First, he made reference to the complainant's alleged confrontation with the DON, which Mr. Bradley maintained demonstrated an "unwillingness to change his negative attitude." Second, Mr. Bradley stated that the complainant and his wife were not team players because they would tell other employees when they could take a break or tell them what to do.
The commission is unpersuaded by these explanations. As stated above, the record contains no competent evidence to establish that the complainant had strained relationships with co-workers, nor is there any evidence to support the contention that he was telling other CNAs when to take breaks or what to do. While the complainant's wife may have done so, the record indicates that she was the lead CNA and that those tasks were part of her job description. The record also contains nothing to show that the complainant engaged in the type of altercation with the DON that is alleged to have occurred, and the comments that the respondent contends demonstrate a bad attitude on his part were at least tangentially related to the complainant's protected conduct. Considering all the facts, the commission does not find it credible that the complainant was discharged for legitimate, performance-related reasons separate from the protected conduct.
In explaining that he believed the complainant, along with his wife and daughter, exhibited a poor attitude that did not fit in with the culture of the business, Mr. Bradley made the following observation:
". . . if they were told something they did not like, they threatened to call the State instead of working through the process with administration. That told me either we had to do what the Whites and Ms. Schmitt wanted or they were going to go to the State instead of being willing to work with us to solve the problem."
The commission believes that this testimony goes to the heart of the respondent's decision to discharge the complainant. The evidence establishes that the respondent was unhappy with the complainant's actions in threatening to call DWD to discuss wage issues, and that it viewed that conduct as being a violation of its policies and a basis for disciplinary action. When the complainant clarified that he had in fact already contacted DWD, one of the respondent's representatives, who was later involved in the discharge decision, became agitated and expressed her displeasure with the complainant's actions. Within two days the complainant was discharged. Although the complainant had been warned that working overtime without approval would result in his discharge, he did not engage in that conduct prior to being discharged, nor is the commission persuaded that the complainant was discharged for any of the other reasons advanced by the respondent.
Given all the circumstances, the commission concludes that the respondent's decision to discharge the complainant was directly related to his protected conduct and, as such, was in violation of § 111.322(2m) of the Act.
NOTE: The commission attempted to obtain the administrative law judge's impressions of the demeanor of the witnesses. However, the administrative law judge was unable to recall the witnesses and had no demeanor impressions to impart.
cc:
Jahn Bradley, Administrator
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