State of Wisconsin
Labor and Industry Review Commission
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BETH TRUDELL |
Fair Employment Decision[1] |
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Employee-Complainant |
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BELLIN MEMORIAL HOSPITAL |
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Respondent |
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Dated and Mailed: |
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ERD Case No. CR201303060 |
June 29, 2016 |
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EEOC Case No. 26G201400137C |
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The decision of the administrative law judge (copy attached), is modified and, as modified, is affirmed. Accordingly, the complaint of discrimination is dismissed.
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By the Commission: |
/s/____________________________________ Laurie R. McCallum, Chairperson
/s/____________________________________ C. William Jordahl, Commissioner
/s/____________________________________ David B. Falstad, Commissioner |
Procedural Posture
This case is before the commission to consider the complainant’s allegation that she was discriminated against based upon her age and disability, in violation of the Wisconsin Fair Employment Act. An administrative law judge for the Equal Rights Division of the Department of Workforce Development held a hearing and issued a decision. A timely petition for commission review was filed. The commission has considered the petition and the positions of the parties, and has reviewed the evidence submitted at the hearing. 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 15 of the administrative law judge’s FINDINGS OF FACT is deleted and the following paragraph is substituted therefor:
“After the respondent informed the complainant that she would not be on the core team for medical transcriptionists, it provided her with information about other employment opportunities it had available. The complainant determined that she would be unable to perform some of those jobs, and indicated that she was uninterested in others because they paid lower wages than her job as a medical transcriptionist. She, therefore, opted not to pursue any of the opportunities discussed.”
2. The following sentence is appended to the end of paragraph 22 of the administrative law judge’s FINDINGS OF FACT.
“Julie Hamilton also lacked a productivity score because she had been working as a “team facilitator,” responsible for scheduling, performance reviews, and other tasks, and had not been doing clerical work.”
In her petition for commission review the complainant identifies several findings of fact in the administrative law judge’s decision that are claimed to be in error. First,
the complainant argues that the administrative law judge incorrectly found that, when deciding which transcriptionists to retain, the respondent looked at productivity, as well as quality of work and discipline status of employees. The complainant maintains that the respondent presented no documentation to show that it considered the quality of work or the discipline status of any of the medical transcriptionists, and that no documentation of performance reviews was presented at the hearing. This argument fails. While it is clear that productivity was the primary consideration in deciding which transcriptionists to retain--and the only factor for individuals whose productivity was not high enough to place them in the “core group”--the respondent’s witnesses credibly testified that quality of work and discipline status were also considered in the process. The respondent was not required to present performance evaluations or other documentary evidence in order to establish that point. The complainant has provided no reason to question the respondent’s explanation as to the factors that were considered in deciding which transcriptionists to retain, nor has she established that that explanation was really a pretext for discrimination.
The complainant also takes issue with the administrative law judge’s finding that the respondent offered her another position, which she declined. The complainant contends that she was informed that if another position was available she would need to apply, but that she was never actually offered a different job. The evidence in the record reflects that the respondent raised the topic of several job opportunities with the complainant, all of which she expressed a lack of interest in pursuing. The commission has modified the administrative law judge’s decision to more accurately state this fact and to remove the suggestion that the respondent extended actual job offers.
The complainant further argues that paragraph 22 of the administrative law judge’s findings of fact is incorrect, since Kay Heller was not a medical transcriptionist and because no production numbers were ever produced for Julie Hamilton. However, the respondent’s records do indicate that Ms. Heller, age 51, was a hospital transcriptionist and, further, that her productivity score was 233 lines per hour, significantly higher than the complainant’s. With respect to Julie Hamilton, the record indicates that she had been working as a “team facilitator” and had not been performing clerical work. Consequently, Ms. Hamilton lacked a productivity score. The commission has modified the administrative law judge’s decision to reflect that fact.
Finally, the complainant argues that Ann Scherbert did not meet the production standard, but was on the core team. The complainant maintains that the fact Ms. Scherbert was also in the protected age group does not mean that the complainant was not discriminated against. The commission has considered this argument, but finds it unpersuasive. While Ms. Scherbert did not meet the productivity standards, her production number was slightly higher than the complainant’s and the respondent explained that, when someone dropped off the core team, Ms. Scherbert moved up. The three individuals who were not selected for the core team, including one who was under age 40, had the lowest productivity scores in the group. While Ms. Scherbert is younger than the complainant, she is also in the protected age group, and the record reveals no reason to suspect that she was treated more favorably than the complainant because of her age.
Based on its independent review of the evidence in the record, the commission agrees with the administrative law judge that the complainant failed to meet her burden of demonstrating probable cause to believe she was discriminated against because of her age or disability, as alleged in her complaint. Accordingly, the dismissal of the complaint is affirmed.
NOTE: The portion of the administrative law judge’s memorandum opinion addressing the complainant’s allegations of age discrimination focused on the question of whether the complainant established a prima facie case of discrimination. However, the commission has consistently held that once the respondent has articulated a legitimate nondiscriminatory reason for the discharge or other action alleged to be discriminatory, the question of whether the complainant has established a prima facie case becomes moot. See, Perkins v. Rogers Memorial Hospital, ERD Case No. 201100383 (LIRC Feb. 28, 2014);Wilks v. St. Joseph’s Rehabilitation Center, ERD Case No. 201002484 (LIRC Feb. 28, 2013); Stern v. RF Technologies Inc., ERD Case No. 200200780 (LIRC Feb. 6, 2004); Binversie v. Alaark Mfg. Corp., ERD Case No. 199901928 (LIRC June 27, 2001); and Theusch v. Steel Craft Corp. of Hartford, ERD Case No. 199601535 (LIRC May 22, 1998). Once a legitimate nondiscriminatory reason is articulated, the burden of proof reverts to the complainant to show this reason is a pretext for discrimination. Naill v. Western Wisconsin Technical College, ERD Case No. 199404088 (LIRC Feb. 12 1999). As stated in the commission’s memorandum opinion, above, the complainant did not meet that burden in this case.
cc: Attorney Ross Townsend
[1] Appeal Rights: See the green enclosure for the time limit and procedures for obtaining judicial review of this decision. If you seek judicial review, you must name the following as defendants in the summons and the complaint: the Labor and Industry Review Commission, and all other parties in the caption of this decision or order (the boxed section above).
Appeal rights and answers to frequently asked questions about appealing a fair employment decision to circuit court are also available on the commission’s website http://lirc.wisconsin.gov.