State of Wisconsin

Labor and Industry Review Commission

Ruzica Kuzmanovic	Fair Employment Decision[1]
Complainant
Estate of Barbara J Fickau
Respondent	Dated and Mailed:
ERD Case No. 201604582	May 31, 2017
	Kuzmaru_rsd:164

The decision of the administrative law judge (copy attached) is affirmed.  Accordingly, the complainant’s complaint is dismissed.

By the Commission:
	/s/
	Laurie R. McCallum, Chairperson
	/s/
	David B. Falstad, Commissioner

Procedural Posture

This case is before the commission to consider the complainant’s allegation that the respondent retaliated against her for engaging in conduct protected under one or more of Wisconsin’s elder abuse and health care worker laws, in violation of the Wisconsin Fair Employment Act.  An equal rights officer for the Equal Rights Division of the Department of Workforce Development issued a preliminary determination dismissing the complainant’s complaint for lack of jurisdiction.  The complainant filed a timely appeal and the matter was sent to an administrative law judge, who issued a decision affirming the preliminary determination.  A timely petition for commission review was filed, and the matter is now before the commission.

In her petition for commission review the complainant argues that Wis. Stat. § 49.197(6)(d) protects employees from retaliation for reporting fraudulent activity, and states that the respondent engaged in fraudulent activity.  However, the statute cited by the complainant does not apply in this case.  Chapter 49 of the statutes covers public assistance and children and family support services, and the anti-retaliation provisions contained in that section apply only to the Department of Health Services, a county, a tribal governing body, or an employee of one of those entities.  The statute does not cover the complainant’s allegations with respect to the respondent in this case, an individual who hired the complainant to provide her with care.[2]

In her petition the complainant also takes issue with the administrative law judge’s statement that the respondent may be considered an “adult at risk” or an “elder adult at risk” for purposes of Wis. Stat. §§ 55.043 and 46.90(4)(b).  The complainant maintains that it was not the respondent who was at risk, but the complainant who was subjected to retaliation on the part of the respondent.  The complainant’s  argument fails.  Whether or not the respondent is considered an “adult at risk” or an “elder adult at risk,” the statutory sections at issue do not apply in this case, since the complainant did not allege she engaged in any conduct that was protected under those statutes.  The complainant did not report that the respondent was abused, financially exploited, or neglected, but, rather, made a series of allegations against the respondent.   Even if the complainant’s allegations have merit, they are not covered under the statutes referenced above, which are designed to protect individuals who attempt to act in the interest of a certain class of vulnerable adults.

The commission has considered the remaining arguments raised by the complainant in her petition, but finds them similarly unpersuasive.  Because the commission agrees with the administrative law judge that the complainant’s complaints are not covered under any of the omnibus anti-retaliation provisions for which protection is provided under the Wisconsin Fair Employment Act, the dismissal of her  discrimination complaint is affirmed.

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[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 Labor and Industry Review Commission as a respondent in the petition for judicial review.

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.

[2] As the administrative law judge noted in her decision, while the preliminary determination included a finding that the complainant’s allegations were not covered under Wis. Stat. § 49.197(6)(d), the complainant did not file a complaint under that statute, which does not specifically apply to elder abuse or health care workers.