STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126
http://dwd.wisconsin.gov/lirc/

MIKHAIL VASERMAN, Complainant

LAKESHORE MEDICAL CLINIC LIMITED, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR201004003, EEOC Case No. 26G201100205C


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 second sentence of paragraph 7 of the ALJ's FINDINGS OF FACT, insert the word "employees" between the words "and" and "were".

  2. In the second sentence of paragraph 9 of the ALJ's FINDINGS OF FACT, delete the phrase "on October 15 of 2010" and replace it with "on or about October 15, 2009".

  3. In the first sentence of paragraph 11 of the ALJ's FINDINGS OF FACT, delete "2010" and replace it with "2009".

  4. In paragraph 12 of the ALJ's FINDINGS OF FACT, delete the words "Based on his interview" and replace them with "After the job interview".

  5. Delete paragraph 13 of the ALJ's FINDINGS OF FACT, and replace it with the following:

Bornhofer's initial intention was to assign the Complainant to work primarily with a specific doctor or doctors. Her term for medical assistants with this kind of assignment was specialty medical assistant. Because the doctors who provided care to patients of the Lakeshore performed their services at multiple clinic locations, specialty medical assistants had to be capable of traveling to a variety of clinic locations. In addition, specialty medical assistants typically also worked with doctors to whom they were not specially assigned, in order to fill out their allotted work hours. In the first several weeks of the Complainant's employment, he was assigned to work with a number of doctors to whom he had not been specially assigned. The Complainant's hours, pay and working conditions were not adversely affected by the work assignments he was given.

  1. Delete paragraph 14 of the ALJ's FINDINGS OF FACT, and replace it with the following:

At some point in the fall of 2009 the complainant informed Bornhofer that he had a problem getting to all clinic locations. Bornhofer therefore decided to assign the Complainant so as to keep him working at the Layton clinic.

  1. Delete the first sentence of paragraph 15 of the ALJ's FINDINGS OF FACT, and replace it with the following:

The designation that Bornhofer gave to medical assistants who were assigned to work within the Layton clinic was floater. She used the term floater to refer to a medical assistant who moved from one doctor to another within a single clinic, as opposed to a medical assistant who traveled to different clinics in order to work with specific doctors.

  1. Delete the third sentence of paragraph 19 of the ALJ's FINDINGS OF FACT, and replace it with the following:

On or about December 8, 2009 the Complainant wanted to attend a training opportunity at Dr. Eyzaguirre's office, but he was not permitted to because his services were needed at the Layton clinic, and because typically Layton medical assistants were trained at the Layton clinic. Neither the Complainant's national origin nor his religion was a factor in his lack of permission to attend this training.

  1. Delete the second sentence of paragraph 23 of the ALJ's FINDINGS OF FACT, and replace it with the following:

The Complainant completed the survey and returned it to the Respondent's human resources department on or about January 13, 2010. In response to a question on the survey about whether team members welcomed him, the Complainant wrote:

I'm confused and concerned about some team members unprofessional and inappropriate following behaviors: 1) Discriminations. 2) sexual harassment. 3) Rudes. 4) Hostile. 5) Exploitations. 6) Phone games. 7) Inhospitable. 8) gossips. 9) suspicions, and 10) spy.

He repeated this list in a later question on the survey asking if there was anything that could be done to improve the quality of life at work. At some point thereafter Ably saw the completed survey from the Complainant. Looking at it did not cause Ably to take any action.

  1. In the third sentence of paragraph 28 of the ALJ's FINDINGS OF FACT, delete the words "Bornhofer and".

 

DECISION

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

Dated and mailed October 30, 2015

vasermi_rmd . doc : 107 : 5   PC 729  751

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner


MEMORANDUM OPINION


The complainant was employed as a medical assistant for the respondent from approximately October 12, 2009 to May 17, 2010. In his complaint filed with the Equal Rights Division (ERD) on or about November 2, 2010, he has alleged that the respondent terminated his employment and discriminated against him in the terms and conditions of his employment on the basis of national origin and religion, and retaliated against him for having opposed what he believed to be discriminatory practices at work.

The ERD issued an Initial Determination on February 17, 2011 finding no probable cause to believe that the respondent violated the Wisconsin Fair Employment Act (WFEA) as alleged. The complainant filed an appeal of that determination, and an administrative hearing took place. On February 29, 2012 an Administrative Law Judge (ALJ) affirmed the Initial Determination and dismissed the complaint.

The complainant filed a petition for review with the commission, and on February 28, 2014 the commission issued an order reversing the ALJ's decision and remanding the case for a hearing on the merits of the complaint. The commission put the parties on notice that the hearing on the merits would be an entirely new hearing that would not incorporate the record from the probable cause hearing.

The hearing on the merits took place on September 16 and December 9, 2014. The ALJ, who was not the same ALJ who had found no probable cause, issued a decision on July 13, 2015 finding that the complainant had not proven his allegations, and dismissed the complaint.

Once again, the complainant filed a petition for review with the commission. In his petition the complainant challenged several of the ALJ's rulings made before and during the hearing, and charged the ALJ with deciding against him in retaliation for his having petitioned for commission review of the no-probable-cause determination.

The commission has modified the ALJ's findings of fact as noted above, and affirms the ALJ's conclusions of law and decision dismissing the complaint. The commission finds that the ALJ acted within his discretion in all the rulings that the complainant has challenged. There is no evidence that the ALJ's conduct of the hearing or decision in the case was tainted by any motive to retaliate against the complainant.

The conduct of the ALJ

The complainant makes the accusation that the ALJ dismissed his complaint in order to retaliate against him for having petitioned the commission for review of the no-probable-cause determination. He presented no factual basis for this accusation, and did not offer a plausible reason that the ALJ might have had to be biased against him. The ERD hearing section is accustomed to having litigants petition for commission review, and is accustomed to hearing cases that have been remanded by the commission. The fact that that happened here does not give rise to any suspicion that the ALJ harbored any bad feeling toward the complainant. In addition, because the ALJ who decided this case was not the same ALJ who decided the no-probable-cause case, there was not even the possibility of arguing that the ALJ felt rebuked by the fact that the commission had reversed the no-probable-cause decision. A review of the transcript of hearing shows that the ALJ treated the complainant with patience and respect throughout the hearing. There was no evidence of bias.

Decision makers in state administrative proceedings enjoy a presumption of honesty and integrity. Vaisman v. Aldridge, Inc., ERD Case No. 8751142 (LIRC Oct. 21, 1991), citing Guthrie v. WERC, 111 Wis. 2d 447, 331 N.W.2d 331 (1983); State ex rel. DeLuca v. Common Council, 72 Wis. 2d 672, 242 N.W.2d 689 (1976); Eastman v. City of Madison, 117 Wis. 2d 106, 342 N.W.2d 764 (Ct. App. 1983). A party seeking to prove actual bias or an impermissibly high risk of bias bears a heavy burden to overcome this presumption. DeLuca, 72 Wis. 2d at 684; Eastman, 117 Wis. 2d at 114. The complainant has not met this heavy burden.

The specific rulings that the complainant challenged were his changing of the date of the first day of hearing, his decision not to sanction the respondent for filing an untimely answer to the complaint, and his ruling terminating the complainant's cross examination of Laurie Bornhofer, one of the respondent's witnesses.(1) The standard the commission applies to an ALJ's procedural rulings and rulings on exclusion or inclusion of evidence is a deferential standard, in which it asks whether the ruling was a reasonable exercise of discretion or an abuse of discretion. Shi v. UW System Board of Regents, ERD Case Nos. CR201101274 & CR201203088 (Sep. 11, 2015).

As to changing the date for the first day of hearing, the record shows that a notice of hearing dated June 24, 2014 was mailed to the parties, setting the hearing for August 13, 2014. At the ALJ's own initiative, he rescheduled the hearing for September 16, 2014. The notice to the parties changing the hearing date to September 16, 2014 was mailed on or about July 31, 2014.

The complainant argued that the postponement of the hearing violated Wis. Admin. Code § DWD 218.18(2), but it did not. That provision addresses the parties' rights and obligations in requesting postponements and continuances; it says nothing about the ALJ's ability to postpone a hearing. Generally speaking, an ALJ has discretion to control his own calendar by changing a hearing date. The complainant's dissatisfaction with the postponement, it appears, is based on the fact that he filed and served his witness list and proposed exhibits for the hearing on or about July 28, 2014, in anticipation of a hearing on August 13, 2014. Even with the postponement, however, the complainant remained free to amend, or retract and completely re-do, his witness list and proposed exhibits up to 10 days before the new hearing date. Not only has the ALJ not abused his discretion, the complainant has not articulated how the postponement has prejudiced him.

With respect to the timeliness of the respondent's answer to the complaint, the ALJ properly interpreted Wis. Admin. Code § DWD 218.12 to require the respondent to file an answer to the allegations of a complaint within 21 days after the date of the first notice of hearing on the merits, and properly found that the respondent did not comply with that requirement. The ALJ went on to correctly note, however, that there was no showing that the complainant was prejudiced by the lateness of the answer, and that in any case, the only consequence of a late answer set out in the administrative rule was a possible waiver of affirmative defenses asserted by the respondent. The ALJ took the issue under advisement, informing the parties that if at the conclusion of the hearing the respondent relied on any affirmative defenses, the complainant would be free to argue that those should be deemed waived. (Tr., p. 27). The complainant made no such argument at the conclusion of the hearing, and the record does not show that the respondent asserted any affirmative defenses in presenting its case. The ALJ acted completely within his discretion in dealing with this issue.

Finally, the complainant argued that the ALJ's termination of his cross examination of the respondent's witness Laurie Bornhofer denied him an opportunity to ask questions of Bornhofer. The transcript of hearing shows that the cross examination of Bornhofer began on page 292 and ended on page 345. During the cross examination the ALJ sustained objections to the complainant's question asking the witness if she had mental problems, cautioned him about regularly interrupting his own questioning to express disbelief in the complainant's answers or to give his own testimony, and cautioned him about arguing with respondent's attorney. The event that triggered the ALJ's termination of the cross examination was the complainant's decision to abandon relevant questions in order to repeatedly insult the witness's eating habits and appearance ( e.g., "She eat 20 times per day. She eat 20 times per day. You look at her. And I should go and clean after her?..."). The witness was brought to tears and the hearing was stopped. After a recess, the ALJ heard arguments from both sides, and decided to end the cross examination based on the complainant's breach of civility.

There is no statutory or judicial standard directly addressing the ALJ's authority in this matter,(2) making it difficult to assess abuse of discretion, which involves a question of whether the ALJ applied a proper standard. See, Shi v. UW System Board of Regents, ERD Case Nos. CR201101274 & CR201203088 (Sep. 11, 2015). Even if it were assumed that the ruling exceeded the ALJ's discretion, however, the commission does not find that it deprived the complainant of a fair opportunity to present his case. Most importantly, his petition for review does not identify what further questions he would have asked the witness, or make a persuasive case as to how such questions might have made a difference in the outcome. The complainant had a substantial period of time to ask questions of the witness. Given the quality of his questioning, it does not appear likely that further questioning would have revealed valuable evidence in his favor. The balance of his evidence is substantial-he had two full days of hearing, in which he provided hours of testimony; he cross-examined Bornhofer on many issues before his examination was terminated; he fully cross-examined the other witness for the respondent; and he successfully moved his 143-page exhibit into evidence. He had a full opportunity to prepare for hearing by engaging in discovery and requesting witnesses to be subpoenaed, but he did not take advantage of that opportunity. On balance, he has not shown that the ALJ's ruling, even if it exceeded his discretion, was crucial to the decision in favor of the respondent. Therefore the error, if there were one, could not have been more than a harmless error, which would not be grounds for reversal. Schultz v. V & H Trucks, Inc., ERD Case No. CR201102234 (Apr. 30, 2015).

Findings and conclusions of the ALJ

Work assignments

The complainant alleged that when Bornhofer hired him, she told him he would be assigned to work with three doctors-Dr. Krishnan, Dr. Eyzaguirre and Dr. Bajwa; that shortly after he was hired he was not assigned to work with them, but instead with a variety of other doctors; and that medical assistants who were not of his national origin or religion were regularly assigned to either one or two doctors. His contention is that Bornhofer transferred him from being dedicated to three specific doctors to being a floater (assigned to doctors as necessary at the Layton clinic) because of his national origin or religion.

Bornhofer denied that the complainant was hired to work with the three doctors named by the complainant, but she acknowledged that when he was hired he was expected to be dedicated to a specific doctor. It was clear to the complainant and respondent from the outset, however, that even if he were dedicated to the three doctors he named, he would still be working a substantial amount of time with other doctors if he worked primarily at the Layton clinic, because the three doctors had very few hours of service scheduled at the Layton clinic, and a number of hours at other clinics scattered around the area. According to Bornhofer, the complainant told her that he had problems getting to different clinic locations, and for that reason she changed him to what she called a float position-stationed at the Layton clinic, and supporting the doctors that needed his assistance at Layton. The respondent did not dispute that some medical assistants were dedicated to certain doctors, but it also asserted that there were about four or five others at Layton who, like him, were floaters. The respondent denied that the assignments it gave to the complainant constituted an adverse employment action, and that in any case, its reason for assigning him as it did was because of his transportation problem, not his national origin or religion.

The complainant did not show that the respondent's non-discriminatory reason for assigning him to a float position was a pretext for discrimination. There was no direct evidence of discriminatory animus on the part of Bornhofer, and there is no reason to infer animus from the circumstances, given that Bornhofer decided to hire the complainant knowing his national origin and religion. The complainant did not persuasively rebut Bornhofer's testimony that the complainant told Bornhofer about having a transportation problem. Instead, he gave an evasive and sarcastic answer to the question how he got to work. (Tr., p. 144). There is no reason to doubt that the respondent sincerely believed that the complainant had a transportation problem that would have made it difficult for him to be dedicated to doctors who worked at different clinic locations, and this belief plausibly explained the respondent's decision to assign the complainant as a floater. The complainant failed to prove a discriminatory motivation for his assignments.

Terms and conditions--harassment

The complainant recounted a few incidents of negative comments about him by co-workers that did not involve any expression of hostility based on national origin or religion, such as his allegation that Dr. Lubens referred to him as crazy. The evidence did not support a finding that these comments were motivated by the complainant's national origin or religion. See, Kannenberg v. LIRC, 213 Wis. 2d 373, 394, 571 N.W.2d 165 (Ct. App. 1997). But the complainant also recounted a few incidents that amounted to allegations of harassment by co-workers on the basis of national origin. They included: an allegation that on or about April 6, 2010, when he and a medical assistant named Lisa were scheduled to clean the clinic's lunchroom, Lisa refused, and told the complainant he should clean the lunchroom because he was from Russia; an allegation that some time in May 2010 another medical assistant named Lindsay made a similar comment; and an allegation that he overheard Dr. Baman tell a patient that the complainant was a Russian troublemaker. As to the allegation about Dr. Baman, the respondent acknowledged that the complainant complained about it. According to the respondent, an investigation was conducted in which Dr. Baman denied using the word troublemaker. The respondent concluded that the incident was a misunderstanding, not an incident of harassment. The respondent denied being informed of the complainant's problems regarding cleaning the lunchroom. The complainant maintained that he complained to management about them, but nothing was done.

Under the WFEA, harassment by co-workers on the basis of national origin, like harassment on the basis of race, falls under the category of discrimination in terms and conditions of employment. It requires a showing: that the employee was subjected to unwelcome harassment; that it was based on his national origin; that it was severe and pervasive so as to alter the conditions of the employee's environment and create a hostile or abusive work environment; and that there was a basis for employer liability. See, Clark v. Plastocon, ERD Case No. CR199703063 (LIRC Apr. 11, 2003). When the totality of circumstances, including the severity and frequency of the incidents, is considered, the complainant's evidence is not sufficient to prove co-worker harassment on the basis of national origin because the incidents recounted that indicate hostility on the basis of national origin are not sufficiently severe or pervasive to create a hostile work environment. Kannenberg, supra at 394-95.

Retaliation

The complainant completed the respondent's 90-day new employee survey, and in it he indicated he was disappointed with his treatment at work for a number of reasons. Among those reasons was discrimination, although he did not identify national origin or religion as the basis of discrimination. He testified that he returned the survey to the human resources department on or about January 13, 2010, and that he was subjected to retaliatory acts after that time. Ably, the human resources employee who testified on behalf of the respondent, denied that he saw the complainant's survey prior the end of the complainant's employment. The ALJ found that the complainant did not return the survey, but the commission has changed that finding. Ably gave inconsistent testimony at an unemployment insurance hearing, and a synopsis of his testimony is in evidence. The synopsis indicates that Ably acknowledged that he received the complainant's survey, and decided that there were no actions that needed to be taken. (Ex. A, p. 109).

The complainant did establish, then, that he expressed opposition to what he perceived to be discrimination. He did not show, however, a connection between his turning in of the survey and any retaliatory act. As far as the evidence shows, the only person aware of the survey was Ably. It was not shown that any other member of management, such as Bornhofer or her assistant, Marie Tratnik, had any knowledge of the survey. As far as Ably's having retaliated, it was shown that Ably conducted a "documented discussion" meeting with the complainant in March 2010, which was triggered by two employees' complaints about the complainant's conduct, but that meeting was not disciplinary. In fact, the complainant was unable to show that he was ever disciplined by the respondent. The complainant, therefore, failed to show that after he turned in his survey he was subjected to any act from management that a reasonable person would have considered to be adverse for purposes of a retaliation claim. See, Kruschek v. Trane Co., ERD Case No. CR200603576 (LIRC Dec. 23, 2010).

Termination

The most consequential issue decided by the ALJ, because it was the only basis for any monetary claim, was his finding and conclusion that the termination of the complainant's employment was not in violation of the WFEA. The commission affirms this finding and conclusion on the grounds that the complainant's employment ended voluntarily. A claim of discriminatory or retaliatory discharge cannot be successful unless the complainant can prove his or her employment ended involuntarily, either as a result of a termination decision by the employer, or by his being subjected to working conditions that were so difficult or unpleasant that a reasonable person in the complainant's position would have felt compelled to resign. Raven v. Pick 'N Save, ERD Case No. CR200000357 (Dec. 10, 2002). The complainant made no assertion that the employer made a decision to terminate his employment. The undisputed evidence is that the complainant gave Bornhofer a two-week notice on May 3, 2010, effective May 17, 2010. (Ex. 7). The persuasive evidence is that he did so because he intended to take about six or seven weeks off to go to Europe to visit his ill father and visit the grave of his mother. That was the testimony of Bornhofer and of human resources employee Adam Ably; it was the statement recorded in the complainant's exit interview form (Ex. 9); it was consistent with the information on the Employee Change Notice (Ex. 12); and it was at least partially consistent with the complainant's testimony given at his unemployment insurance hearing on October 27, 2010. As synopsized at that hearing, his initial testimony about resigning was:

I gave a written resignation notice to the Manager, Laurie (unintelligible), on 5/3/10, indicating my last day would be on 5/17/10. She asked if I found a new job. I said no. She asked why. I said because me 98-year old father is in Israel and he was very sick, had a stroke, and lost his vision, and he wanted to see me...

(Ex. A, p. 95). Later in his testimony, the complainant expanded on his reason for submitting his resignation:

I quit because I wanted to spend time with my father, and I thought there was going to be disciplinary action would be taken [sic] against me because of negative information being spread about me, and because retaliation had started to be taken against me after 90 days.

(Ex. A, p. 96). His stated belief that there was going to be disciplinary action against him, and that retaliation had started, was not borne out in the evidence. The complainant pointed to no actual disciplinary action ever taken against him during his employment, and his claims of retaliation were unproven. As of May 3, 2010, the complainant was not in a position of being reasonably compelled to resign because of working conditions imposed on him. He made no showing that the respondent's unwillingness to grant him six to seven weeks off was an onerous working condition. It was the result of a uniform and reasonable policy. Even so, the credible evidence is that the respondent was willing to consider granting an unpaid leave of absence to the complainant, and gave him the forms to complete in order to perfect that request. The complainant did not show that he returned a completed leave of absence request, and he mentioned nothing about making such a request to Ably during his exit interview on his last day of employment. A reasonable person in the complainant's position, who wanted to continue his employment but who was determined to take six or seven weeks to visit his father, would have sought a definitive answer from the employer regarding his leave of absence request before proceeding with his resignation. The complainant's failure to do so was his choice. Under these circumstances, his resignation cannot be considered compelled.

In order to prove constructive discharge in a case under the WFEA, the complainant must show not only that working conditions compelled him or her to resign, but also that working conditions were intolerable for a reason that violated the Act. Looper v. IHOP Restaurant, ERD Case No. CR200800503 (LIRC Mar. 21, 2012). There was no evidence that the respondent's unwillingness to give the complainant six to seven weeks off work (without getting approval for a leave of absence) was motivated by the complainant's national origin, religion, or by the fact that he had made a few complaints of discriminatory treatment. At hearing the complainant attempted to bolster his claim of religious discrimination as a reason for resigning by alleging that he turned in his resignation in part because his request to take off work for religious holidays on May 19 and 20 was denied. That assertion is not credible. Bornhofer credibly testified that she granted the complainant's request to take May 19 and 20 off, because she believed he designated those as Jewish holidays. (Tr., pp. 288-290). The evidence does not show that a denial of days off for Jewish holidays in May was a reason that the complainant submitted his resignation.

Having failed to prove that he was compelled to resign because of intolerable conditions that were in violation of the WFEA, the complainant has not succeeded on his termination claims.

 

cc: Michael Kohler


Aff'd, Vaserman v. LIRC (Mil. Co. Cir. Ct., 06/03/16.

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Footnotes:

(1)( Back ) The complainant had also argued that it was improper for the ALJ to accept the respondent's list of witnesses and copies of exhibits on the grounds that they were not disclosed timely under Wis. Admin. Code ยง DWD 218.17, but the complainant waived this objection at hearing (Tr., pp. 29-31).

(2)( Back ) At the trial and appellate court levels, it is recognized that courts have statutory and inherent authority to enforce civility in the courtroom. Chevron Chem. Co, v. Deloitte & Touche, 176 Wis. 2d 935, 946-47, 501 N.W.2d 15, 20 (1993). 


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