TERRI J VOLKMANN, Complainant
COLONIAL MANAGEMENT GROUP LP, 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 agrees with the decision of the administrative law judge, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:
1. Paragraph 4 of the administrative law judge's FINDINGS OF FACT is deleted and the following is substituted therefor:
"The complainant never made the respondent aware that she had ADHD or dyslexia, nor did she request an accommodation for either of those conditions."
2. In the first sentence of paragraph 17 of the administrative law judge's FINDINGS OF FACT the phrase "The Complainant Respondent's Standards of Conduct" is deleted and the phrase "The Respondent's Standards of Conduct" is substituted therefor.
3. The administrative law judge's CONCLUSIONS OF LAW are deleted and the following CONCLUSIONS OF LAW are substituted therefor:
1. That the respondent did not discriminate against the complainant based upon disability, within the meaning of the Wisconsin Fair Employment Act.
2. That the respondent did not discriminate against the complainant based upon age, within the meaning of the Wisconsin Fair Employment Act.
3. That the respondent did not take disciplinary action against the complainant because she engaged in conduct covered under the Wisconsin Health Care Worker Protection Act.
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed January 30, 2015
volkmte_rmd . doc : 164 : 123.32 544
780
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
Age/Disability
The complainant was born in 1964, making her approximately 46 years old during the time period at issue, and has been diagnosed by a physician as having ADHD and assessed as having dyslexia. The complainant contends that her ADHD and dyslexia constitute disabilities, and that the respondent discriminated against her in the terms and conditions of her employment based upon her age and disabilities and terminated the employment relationship for the same reasons. Specifically, the complainant argues that her ADHD and dyslexia left her vulnerable to being picked on, and that her supervisor bullied her and deliberately attempted to cause her stress. She disputes the validity of the respondent's stated reasons for discharging her, and contends that she was really discharged for "disability reasons." With respect to age, the complainant's argument is that her supervisor spent more time working with younger staff members, degraded the complainant in front of younger staff members, and ultimately discharged her and replaced her with a younger person.
In its brief to the commission the respondent insists that the complainant failed to establish she has a disability, noting among other arguments, that there were inconsistences and unpersuasive responses contained in the complainant's expert testimony. However, the commission considers it unnecessary to resolve this issue or to address the respondent's arguments on this point in the absence of any evidence to establish that the respondent was aware of the complainant's alleged disability status. (1) Simply put, the complainant did not establish that she told the respondent she had either ADHD or dyslexia, and there is no reason to believe that the respondent understood this to be the case. (2) Consequently, even assuming it could be found that the complainant is an individual with a disability within the meaning of the statute, there would be no basis upon which it could be found that discrimination occurred. "Motivation is a pertinent and necessary inquiry in a discrimination case." Polesky v. LIRC (Washington Co. Cir. Ct., March 31, 1998). It is impossible for the employer to have a motive to discriminate where it is unaware of a handicap. Id. See, also, Stone v. UW System (Wis. Personnel Comm., March 12, 2003)(a conclusion of liability normally requires that the employer be aware of the employee's disability); Manner v. LIRC (Calumet Co. Cir. Ct., Feb. 5, 1985)(it is not handicap discrimination to discharge an employee for deficiencies in work performance where the employer is unaware that the employee has a handicap that is allegedly the cause of those deficiencies). Where, as here, the respondent was unaware of the complainant's asserted disabilities, it could not have undertaken the discriminatory course of action the complainant describes.
Turning to the allegations of age discrimination, while it can be assumed that the respondent was aware of at least the complainant's general age range, notwithstanding her supervisor's testimony that she did not know the complainant's age, there is no evidence in the record to indicate that the respondent held any bias against individuals in the protected age group or that it took any action against the complainant on that basis. (3) Although the complainant has alleged that she was subjected to discriminatory terms and conditions of employment based upon her age, the record does not support a finding that younger workers were treated more favorably. Nor is there any reason to conclude that age was a factor in the respondent's decision to discharge the complainant. To the contrary, the respondent presented evidence that it had a variety of areas of legitimate dissatisfaction with the complainant's job performance that were unrelated to the complainant's age, and it is apparent that the complainant was discharged for these reasons and not because of her age. Finally, the commission notes that the record contains no evidence with regard to the age of the individual who was promoted to replace the complainant--apart from the complainant's unsupported belief that she was quite a bit younger than the complainant--further weakening the complainant's case that age was a factor in her discharge.
Health Care Worker Protection Act (HCWPA)
The complainant also maintains that she was discriminated against because she made a complaint under the Health Care Worker Protection Act (HCWPA). The administrative law judge found that the respondent was covered under the HCWPA, but that she was not subjected to disciplinary action, including discharge, because she made a good faith report under that statute.
The HCWPA provides, in relevant part:
No health care facility or health care provider and no employee of a health care facility or health care provider may take disciplinary action against, or threaten to take disciplinary action against, any person because the person reported in good faith any information under sub. (2)(a), in good faith initiated, participated in or testified in any action or proceeding under sub. (2)(c) or provided in good faith any information under sub. (2)(d) or because the health care facility, health care provider or employee believes that the person reported in good faith any information under sub. (2)(a), in good faith initiated, participated in or testified in any action or proceeding under sub. (2)(c) or provided in good faith any information under sub. (2)(d).
Wis. Stat. § 146.997(3)(a)(emphasis added).
Sub. (2) of the statute provides, as follows:
(2) REPORTING PROTECTED. (a) Any employee of a health care facility or of a health care provider who is aware of any information. . . that would lead a reasonable person to believe any of the following may report that information to any agency, as defined in s. 111.32(6)(a), of the state; . . . to any officer or director of the health care facility or health care provider; or to any employee of the health care facility or health care provider who is in a supervisory capacity or in a position to take corrective action:
1. That the health care facility or health care provider or any employee of the health care facility or health care provider has violated any state law or rule or federal law or regulation.
2. That there exists any situation in which the quality of any health care service provided by the health care facility or health care provider or by any employee of the health care facility or health care provider violates any standard established by any state law or rule or federal law or regulation or any clinical or ethical standard established by a professionally recognized accrediting or standard-setting body and poses a potential risk to public health or safety.
In its brief to the commission the respondent asserts, with little explanation, that it is not a "health care facility" or "health care provider" covered by the HCWPA. The complainant apparently does not disagree with the argument that the respondent is not a health care facility, within the meaning of the statute. However, in her reply brief to the commission the complainant argues, for the first time, that the respondent is a health care provider within the ambit of Wis. Stat. § 146.997(1)(d)11., which covers, "A social worker, marriage and family therapist or professional counselor certified under ch. 457." (4) The complainant has not elaborated upon this assertion or explained why she believes the respondent meets this definition, nor has she directed the commission to any portion of the record that would contain support for an assertion that the respondent could be considered a social worker, marriage and family therapist, or professional counselor certified under ch. 457.
The commission need not resolve the matter on the basis of whether or not the respondent is a covered entity, however, since it is apparent that the respondent did not subject the complainant to disciplinary action because she made a good faith report under the statute. (5) The complainant contends that she complained to both the respondent and the State of Wisconsin about the respondent's alleged failures to vaccinate employees for Hepatitis B, to perform proper peaks and troughs and conduct appropriate urinalysis, and to properly dispose of used methadone bottles. However, the respondent denied having heard about any of these complaints with the possible exception of the one involving the methadone bottles, and the complainant presented no documentation or other evidence to support her contention that such complaints were made. Further, even the complainant's own testimony suggests that the respondent took no adverse action against her based on the alleged complaints--the complainant testified that the respondent never responded to any of her complaints, except for the alleged complaint involving methadone bottles. Not only does this support the respondent's assertions that the methadone bottle matter was the only one of which it was aware, but it shows that the complainant was not subject to disciplinary action because she made a good faith report of information covered under sub. 2 of the statute. With respect to the alleged complaint regarding the disposal of methadone bottles, the evidence establishes only that the respondent told the complainant to stop hiring a third party disposal firm and to dispose of the bottles in the dumpster. There is no evidence to suggest that the complainant ever filed a report or complaint or attempted to take the matter any further after being given this directive--which was not shown at the hearing to violate any state or federal law--nor any evidence to indicate that the respondent retaliated against the complainant on that basis. The complainant's employment was ultimately terminated for reasons unrelated to any disagreement regarding the proper disposal of methadone bottles.
Request for new hearing
In her petition for commission review the complainant argues that the administrative law judge's decision contains no analysis of the evidence and credibility determinations that were made and contends that a new hearing is therefore required. This argument lacks merit. While the administrative law judge's memorandum opinion contains little by way of explanation or analysis, it is clear from the factual findings that the administrative law judge found the respondent's version of events to be credible and, further, that he credited the respondent's reasons for its actions and did not believe the respondent was motivated to discriminate against the complainant based upon either her age or alleged disability status, or because she reported information under the HCWPA. The administrative law judge's decision, while arguably lacking in a clear explanation as to how the administrative law judge arrived at the conclusions he did, is adequate for purposes of review, and any shortcomings in the decision are stylistic and not deficiencies that would warrant further hearing.
As the commission stated in Polesky v. United Brake Parts, ERD Case No. 9250821 (LIRC Aug. 30, 1996):
There is no requirement that an administrative decision be entered with exacting specificity. Door County Highway Department v. DILHR, 137 Wis.2d 280, 295, 404 N.W.2d 548 (Ct. App. 1987). In particular, it is not necessary for administrative agencies to give reasons for the implied rejection of all alternatives in the evidence, as this would be too onerous a burden. Wisconsin's Environmental Decade, Inc. v. Public Service Corp., 98 Wis.2d 682, 702, 298 N.W.2d 205 (1980). This applies to credibility issues; a specific finding that the testimony of a party was not believed, is not required. Bowen v. Industrial Commission, 239 Wis. 306, 312, 1 N.W.2d 77 (1941). The commission is simply not required to set out in detail in its decisions all of its conclusions as to what evidence it believed and what it rejected. State ex rel. Harris v. Annuity and Pension Board, 87 Wis.2d 646, 661, 275 N.W.2d 668 (1978).
The commission's findings need be only as to the ultimate facts where the evidence before the commission is sufficient to establish the ultimate facts declared or found and such facts are inherent in and necessary to the determination of the questions involved in arriving at the decision. Van Pool v. Industrial Commission, 267 Wis. 292, 294, 64 N.W.2d 813 (1954). Ultimate or general findings imply all facts necessary to support them, and a finding not explicitly made may be inferred from other properly made findings and from findings which, even though not made, would be supported by evidence in the record or inferences which can be drawn from the evidence. Valadzic v. Briggs & Stratton Corp. and DILHR, 92 Wis.2d 583, 591, 286 N.W.2d 540 (1979); Doersching v. Funeral Directors, 138 Wis.2d 312, 323, 405 N.W.2d 781 (Ct. App. 1987); Local 695 v. LIRC, 147 Wis. 2d 640, 643, 433 N.W.2d 638 (Ct. App. 1988).
The commission has modified the administrative law judge's decision to clarify the fact that the complainant did not inform the respondent about her alleged disabilities and to delete the conclusions that the complainant established she was an individual with a disability within the meaning of the statute and that the respondent was covered by the HCWPA, neither of which is necessary to the outcome of this matter. However, based on its independent review of the evidence, the commission agrees with the administrative law judge that the complainant failed to demonstrate she was discriminated against in the manner alleged. The dismissal of the complaint is, accordingly, affirmed.
cc:
Attorney J. Drew Ryberg
Attorney Jennifer Ciralsky
Editor's Note: affirmed Volkmann v. LIRC and Colonial Management Group, LP, No. 2015CV0090 (Wis. Cir. Ct. Chippewa Cnty. Sept. 9, 2015).
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