CHIU RICHARDS, Complainant
OUR HOUSE SENIOR LIVING, 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:
The respondent shall pay to the complainant reasonable attorney's fees associated with responding to the respondent's petition for commission review, in the amount of $4,235.00. A check in that amount shall be made payable jointly to the complainant and the Carol Dittmar Law Office, LLC, and delivered to the law office of Attorney Dittmar.
Within 30 days of the expiration of time within which an appeal may be taken herein, the respondent shall submit a compliance report detailing the specific action taken to comply with the commission's decision. The compliance report shall be directed to the attention of Jenny Koepp, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708. 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).
The decision of the administrative law judge (copy attached) is affirmed.
Dated and mailed March 24, 2016
richach_rsd.doc:107:5 124.3 125.4
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
The complainant was employed as a personal care worker by the respondent, an operator of nursing homes. She filed two complaints--one alleging that the respondent violated the Wisconsin Fair Employment Act (WFEA), Wis. Stat. § 111.31 et seq., by discriminating against her on the basis of her race, and one alleging that the respondent violated the Health Care Worker Protection Act (HCWPA), Wis. Stat. § 146.997, by retaliating against her for reporting to a supervisor that she was concerned about the quality of care given by a co-worker.
The investigative unit of the Equal Rights Division found probable cause to believe that the respondent had violated the statutes, and the complaints were consolidated for a hearing on the merits before an Administrative Law Judge (ALJ).
The ALJ issued a decision finding that the respondent did not violate the HCWPA, and did not terminate the complainant's employment because of race or national origin in violation of the WFEA, but did discriminate against the complainant in terms and conditions of employment because of race or national origin. Both parties petitioned for commission review.
Respondent's petition
The ALJ determined that the respondent discriminated against the complainant in the terms and conditions of her employment in August of 2011 by directing her to no longer answer the telephone at the nursing home because a telephone caller reported that she could not understand the name the complainant gave herself when she answered the phone.(1) The respondent took this call as a demonstration that the complainant was not in compliance with the employer's etiquette policy. There was no dispute that the complainant, who was of Chinese origin, spoke imperfect English with an Asian accent, but was generally able to communicate with residents and co-workers. The ALJ found that the complainant's foreign accent was the reason the caller could not understand the complainant when she spoke her name, and therefore that her race or national origin was the basis for the respondent's action.(2)
The respondent argued that: 1) the elimination of the complainant's phone answering duties was not based on her accent, race or national origin; 2) even if it were, it was not discriminatory because either the complainant's accent materially interfered with her ability to comply with the etiquette policy, or the decision maker honestly believed that it did; 3) there was no comparative evidence that the complainant was treated differently from those not in her protected category; and 4) banning the complainant from answering the phone was not an adverse action.
The respondent's contention that the complainant's accent was not the reason for prohibiting her from answering the phone was based on the assertion that there was no direct evidence that the person who requested the prohibition, Cheri Luckenbill, the division director of marketing and sales, knew that the complainant was Chinese, or spoke with a foreign accent. The prohibition was actually ordered, however, by Jenny Swanson, community director, who worked at the nursing home where the complainant worked. The synopsis of Swanson's testimony on eliminating the complainant's phone answering duties reads as follows:
I asked Ms. Richards to not answer the phone at Our House. Our company does something called "secret shops." They hire a company to call us and rate us on our skills. There are certain things that our team members are rated on, such as answering the phone within three rings, answering it using the correct "good morning/afternoon/evening" greeting, sounding like they had a smile on their face, how long they were placed on hold, etc. Cheri Luckenbill, the division director of marketing and sales, called me when I was in Menomonie and said that Ms. Richards had answered the phone and the secret shopper had asked Ms. Richards her name multiple times but could not understand her. Ms. Luckenbill asked me to tell Ms. Richards that Our House was going to eliminate her duty of answering the phone. I did not cut her pay or hours as a result of asking her to not answer the phone. Aside from not understanding her name, I do not know if the secret shopper had any other further complaints.
This was the only evidence submitted by the respondent on the act of prohibiting the complainant from answering the phone.(3) According to this account, Luckenbill asked Swanson to order the complainant to stop answering the phone, and Swanson agreed to do so.
The evidence supports an inference that Swanson was aware that the complainant's accent was the basis of the requested prohibition. First, there is little doubt that Swanson knew that the complainant's first language was not English. The complainant testified that everyone at the nursing home knew she was Chinese, and that she specifically told Swanson that she was Chinese. Swanson denied that she knew the complainant's race, or that the complainant told her that she was Chinese, but it is implicit in the ALJ's decision that the ALJ resolved this credibility issue in favor of the complainant. The commission adopts that credibility determination. It is obvious from listening to the recorded testimony of the complainant that she spoke at the hearing with a pronounced Asian accent that would have been apparent to anyone. Swanson, as the complainant's supervisor during her employment and as the respondent's representative during the hearing, had plenty of opportunity to hear the complainant speak both on the job and at the hearing. She did not testify that the complainant's accent was any different at hearing than it was during her employment. The commission concludes that Swanson was aware of the complainant's accent during her employment.
Second, the evidence supports the inference that the complainant's accent was the problem prompting the request to eliminate her phone answering duties. The message from the secret shopper had to do only with the shopper's inability to understand the complainant's name, despite the shopper's asking her to repeat it several times. There was no complaint about tone of voice, politeness, loudness or softness, or the substance of what the complainant said, other than her name. Swanson, knowing the complainant's speaking ability, would have realized that the complainant's accent was the reason the shopper had failed to understand the complainant's name. The commission finds that the complainant's accent, signifying her Asian race and foreign national origin, was the basis for prohibiting her from answering the phone.
Even though the respondent's directive that the complainant not answer the phone was based on the complainant's accent, which was a characteristic of her race and/or national origin, the directive would not necessarily be in violation of the WFEA. The commission held in Obasi v. Milwaukee School of Engineering, ERD Case No. CR201003882 (LIRC Oct. 14, 2013), that an employer may make a decision based on an individual's foreign accent, "but only to the extent that the accent interferes materially with the ability to perform job duties, and when effective oral communication in English is a job requirement."(4) The respondent argued that the complainant's accent materially interfered with her ability to comply with its etiquette policy, or at least that the respondent honestly believed that it did. It is incumbent upon the respondent to establish a factual basis for this. See, Fragrante v. City and County of Honolulu, 888 F.2d 591, 597, (9th Cir. 1989), cert. denied, 494 U.S. 1081, 110 S.Ct. 1811, 108 L.Ed.2d 942 (1990). The ALJ did not find that the respondent established a sufficient factual basis:
...insofar as effective communication in English was necessary to promote and market Our House to prospective residents and other interested parties, the difficulty in understanding a telephone-answering employee's mere name - whether due to a foreign accent, the name itself, and/or some other factor - wouldn't necessarily preclude communication during the remainder of the conversation in a sufficiently comprehensible, cheerful, and marketable manner. Had the secret shop person communicated to Ms. Luckenbill (and the latter to Ms. Swanson) a more detailed account of the secret shop person's inability to understand other communications from Ms. Richards beyond her mere name, and had those difficulties been an additional basis for the revocation of Ms. Richards' telephone-answering authority, the issue of discrimination in terms and conditions might well be closer.
The commission agrees. The secret shopper's inability to understand the complainant's name is not a sufficient factual basis to support the conclusion that the respondent made an accurate and honest assessment that the complainant's accent materially interfered with her ability to perform her phone-answering duties.
The respondent also argued that the complainant failed to show differential treatment based on race or national origin, by failing to show that she was treated unfavorably compared to other similarly situated employees not in her protected class. It is true that the complainant did not present evidence of any comparators, but that fact did not damage her case. Favorable treatment of comparators is critical to showing a prima facie case by the indirect method of proof.(5) This case, however, was dependent on the direct method:
Under the direct method of proof, the complainant's case consisted of showing that he was protected under the act, that he suffered an adverse action, and that a causal connection existed between the two. Hanners v. Trent, 674 F.3d 683 (7th Cir. 2012).
Oertel v. K & K Manufacturing Company, ERD Case No. CR201104472 (LIRC June 16, 2014). As explained above, the evidence was sufficient to show a causal connection between the complainant's accent and the elimination of her phone-answering duties.
The respondent also argued that the elimination of the complainant's phone-answering responsibilities was not an adverse action. The commission has not required that an alleged adverse act be "materially" adverse in order to state a cause of action. See, Post v. Mauston School Dist., ERD Case No. 199801898 (LIRC Aug. 28, 2002); Froh v. Briggs & Stratton Corporation, ERD Case No. 200101453 (LIRC Sep. 29, 2004). The elimination of phone answering duties had a potential monetary impact on the complainant-the respondent had a practice of giving bonuses to employees for playing a role in attracting new business, but its directive prohibited the complainant from winning a bonus through a telephone contact. The respondent suggested that the removal of the complainant's phone-answering responsibilities was only temporary, but nothing in Swanson's testimony indicates that that was so. In addition to the potential monetary impact, the elimination of the complainant's phone-answering duties carried an intangible impact, described by the complainant:
Some of my co-workers could not understand why I was not answering the phone when it rang. They asked Ms. Swanson why was I not answering the phone and she told them it was not any of their business. She had not told anyone that I was not answering the phone anymore, so a lot of times when the phone rang a co-worker would ask me to pick it up and I had to tell them that I was not supposed to answer the phone. I felt very small and bad about saying I could not answer the phone anymore.
As the ALJ noted in his decision, one of the purposes of the WFEA is to provide a remedy to this kind of injury to one's dignity and self-esteem. Byers v. LIRC, 208 Wis. 2d 388, 397, 561 N.W.2d 678 (1997).
The commission therefore affirms the ALJ's decision that the respondent violated the WFEA by discriminating against the complainant in terms and conditions of employment because of race and/or national origin.
Complainant's petition
The complainant argued in her petition that three corrective action forms issued to her on October 21, 2011 were based on her race. The commission agrees with the ALJ that there was insufficient evidence to support the claim that they were based on the complainant's race.
The complainant's main argument is that the termination of her employment was based on her race or national origin, and in retaliation for expressing a concern to Swanson about the quality of care given by a co-worker, Kayla Prieve. During the course of the hearing, the respondent offered evidence of a non-discriminatory reason for the termination, namely, that the complainant had physically forced a resident down into a chair on October 26, 2011, which Swanson considered to be an act of neglect and mistreatment of a resident, in violation of its Caregiver Code of Conduct and its employee handbook. Because the employer articulated a non-discriminatory reason for termination, the question turns to whether the complainant's evidence shows that reason to be a pretext for illegal discrimination:
...if an employer articulates a legitimate non-discriminatory reason for a discharge or other employment action, the issue of whether the complainant has established a prima facie case becomes moot. Instead, once such a reason is articulated, the burden of proof reverts to the complainant to show that this reason is a pretext for discrimination. U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715, 31 FEP 609, 611 (1983); Naill v. Western Wisconsin Technical College (LIRC, 02/12/99); Kurtz v. School Dist. Of St. Croix Falls (LIRC, June 10, 1993); Duarte-Vestar v. Goodwill Industries (LIRC, Nov. 9, 1990); Mouncil v. Pepsi Cola (LIRC, Feb. 16, 1989).
Stern v. RF Technologies, Inc., ERD Case No. 200200780 (LIRC Feb. 6, 2004).
Proof that an articulated reason is pretextual may be demonstrated by showing that it has no basis in fact, it did not actually motivate the termination, or it was insufficient to motivate the termination. Sult v. Jerry's Enterprises, Inc., ERD Case No. CR200402634 (LIRC Feb. 8, 2008). There was a basis in fact for the allegation that the complainant had physically forced a resident, referred to as P, down into a chair. There is no dispute that, on the date the incident was alleged to have happened, the complainant was attending a staff meeting while at the same time monitoring P, who was seated during the meeting. P had to be watched because she had a tendency to fall. She used a walker, but an alarm would go off if she tried to stand up. The complainant testified that during the staff meeting P tried to get up several times, and the complainant had to ask her to sit back down several times. The complainant denied forcing P down into her chair, but two employees, who were seated at the staff meeting so that they had a line of sight to the complainant, stated that they witnessed the complainant physically force P back into her chair. The respondent received statements from these two employees. One of the witnesses was Prieve. The complainant suggested that Prieve's statement should not be credited because the complainant had criticized the quality of care Prieve was giving to another resident. The evidence shows, however, that Prieve reported the complainant's treatment of P at the staff meeting before the complainant reported her concern about Prieve's care-giving, so Prieve's report could not have been an act of revenge for the complainant's complaint about her. No other reason was offered as to why the two witnesses might make false reports. Although others reported not noticing the complainant forcing P into her chair, no one, other than the complainant, reported that such an incident did not happen. The complainant did not show a lack of factual basis for the incident that caused her termination.
The complainant also failed to prove that the incident on October 26, 2011 was not the actual motivation for her discharge, or that it was insufficient to motivate her discharge. Swanson conducted an investigation that sought information from all potential witnesses. Her conclusion that the complainant had physically forced P into her chair was not unreasonable, given the information she received in her investigation. The prohibition against "any kind of physical abuse" in the employer's rules for personal conduct could plausibly be applied to the conduct Swanson believed had occurred. Swanson's testimony that a substantiated complaint of a resident rights violation or abuse results in automatic termination was not refuted, nor was her testimony that at least two other employees were terminated for forcing a resident to sit down. It was not disproven that Swanson believed the incident occurred as it was reported to her by the two witnesses, that it was the actual motivation, and a sufficient motivation, for terminating the complainant's employment. Pretext, then, has not been proven, and the commission affirms the ALJ's decision that the termination was not in violation of the WFEA or the HCWPA.
cc:
Attorney Carol Dittmar
Attorney Daniel Finerty
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(1)( Back ) The caller was a "secret shopper" retained by the respondent to test whether employees answering the phone for the respondent were being polite and making a positive impression.
(2)( Back ) See, Obasi v. Milwaukee School of Engineering, ERD Case No. CR201003882 (LIRC Oct. 14, 2013) ("The commission recognizes that one's accent can effectively signify his or her national origin, and therefore evidence of an adverse employment decision based on accent can be discrimination on the basis of national origin.") citing EEOC guidelines, 29 C.F.R. ยง 1606.1 (2011), defining discrimination to include "the denial of equal employment opportunity...because an individual has the ...linguistic characteristics of a national origin group."
(3)( Back ) Luckenbill testified that shortly after she started in her position with the respondent in June 2011 she called the Menomonie nursing home to speak to the director at the time, Jacqueline Hood, and that the person who answered talked fast and put her on hold without asking to do so. She testified that she told Hood that the person who answered the phone was rude and would need further training. She did not know the identity of the person who answered the phone. The complainant's phone-answering duties were not eliminated at this time. This testimony is irrelevant to the issues in this case.
(4)( Back ) This holding is consistent with EEOC Compliance Manual, Section 13-V-A (Dec. 2, 2002):
An employment decision based on foreign accent does not violate Title VII if an individual's accent materially interferes with the ability to perform job duties. This assessment depends upon the specific duties of the position in question and the extent to which the individual's accent affects his or her ability to perform job duties. Employers should distinguish between a merely discernible foreign accent and one that interferes with communication skills necessary to perform job duties. Generally, an employer may only base an employment decision on accent if effective oral communication in English is required to perform job duties and the individual's foreign accent materially interferes with his or her ability to communicate orally in English. Positions for which effective oral communication in English may be required include teaching, customer service, and telemarketing. Even for these positions, an employer must still determine whether the particular individual's accent interferes with the ability to perform job duties.
(5)( Back ) Wisconsin has adopted the indirect method of proof established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), in which the elements of a prima facie case are proof of membership in the protected category, an adverse employment action, qualification for continued employment, and less favorable treatment compared to similarly situated individuals not in the protected class. See, Puetz Motor Sales v. LIRC, 126 Wis. 2d 168, 376 N.W.2d 372 (Ct. App. 1985).
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