Wis.LIRC ER Decision: Hickman - February 16, 2000 - Retaliation - discrimination because of opposition to discrimination or filing complaint - retaliation for wage claim - contacting ERD about rights concerning overtime

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

SONYA HICKMAN, Complainant

MILWAUKEE IMMEDIATE CARE CENTER, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199702676

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. Both parties submitted briefs to the commission, the last of which was received on October 28, 1999.

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. Paragraph 6 of the ORDER is deleted and the following paragraph is substituted therefor :

"The Respondent shall pay to the Complainant reasonable attorney's fees and costs for pursuing this complaint, ERD Case No. 199702676. The amount of reasonable attorney's fees and costs to date is $9,015.37, which consists of $8,925.00 in attorney's fees and $90.37 in costs. A check for the above-specified amount of $9,015.37 should be made payable jointly to Sonya Hickman and Attorney F. Thomas Olson (or his law firm) and delivered to Attorney Olson's law firm."

2. Paragraph 7 of the ORDER is deleted and the following paragraph is substituted therefor :

"That 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 it has taken to comply with the commission's decision. The compliance report shall be directed to the attention of Kendra DePrey, 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. Stats., � � 111.395, 103.005(11) and (12).

DECISION

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

Dated and mailed February 16, 2000
hickmso.rmd : 125 : 9

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The respondent, Milwaukee Immediate Care Center, is a non-profit Wisconsin Corporation which provides medical services in Milwaukee's inner city. The respondent provides both primary and urgent patient care. Dr. Goitia is the medical director at the respondent. Dr. Goitia was one of several physicians working at the clinic. Perry Margoles, an attorney, is the president and administrator of the respondent. Margoles founded the clinic, which initially began operation in 1986 as a limited partnership.

Mary Hayes is the respondent's business office manager, and has responsibility for medical billing, payroll and scheduling employes' work hours. Hayes has worked for the respondent since 1990.

At the time material herein, Philistine Knox was employed as the front desk receptionist. Knox began employment with the respondent in 1992. Knox left her employment with the respondent in April 1998.

CleEsther Huewitt was also employed as a receptionist at the front desk at the time material herein. In addition, she assisted Hayes with medical billing. Huewitt was employed by the respondent during two periods, initially from 1990 to 1993, and then again from August 1996 until March 1998, when she resigned.

Margoles' office is a short distance away from the front desk. According to Margoles, this distance is 20 feet away.

The complainant, Sonya Hickman, was hired by Margoles in April 1997 to work as a medical assistant. Hickman left employment at the Milwaukee Psychiatric Hospital, where she had worked for two years counseling delinquent children and children from disruptive families, to take employment with the respondent because she was about to complete her bachelor's degree in nursing and wanted more hands-on experience with taking patients' vital signs and doing patient assessments.

As a medical assistant at the respondent, Hickman's duties included taking and accurately recording patients' histories and vital signs, giving injections and dispensing medications, assisting doctors during examinations, ordering supplies and following up with patients regarding instructions given by doctors. Hickman, who was paid $9 per hour when she started, received a 50-cent increase in pay in mid-May.

Margoles stipulated that Hickman's job performance with respect to patient care was very good, and that to the best of his knowledge there were no complaints about the way she treated patients.

Hickman's hours of work were from 8 a.m. to 4 p.m., although at times she would work more than eight hours on a given day.

The respondent's work week runs from Sunday through Saturday. The respondent's payroll period ends on the 10th and 25th of each month. Following the close of the pay period on the 10th, pay checks are handed out on the 18th. Following the close of the pay period on the 25th, pay checks are handed out on the 3rd.

Hickman worked nine consecutive days beginning on Saturday, May 24, 1997. She worked 8 hours on May 24, 1997, 11 hours on Sunday, May 25, 1997, 11 hours on Memorial Day, Monday, May 26, 8 hours on Tuesday, May 27, 7 hours on Wednesday, May 28, 8 hours on Thursday, May 29, 7.5 hours on Friday, May 30, 8 hours on Saturday, May 31, and 7 hours on Sunday, June 1, 1997.

After working the above hours, Hickman, anticipating the hours she would work by the end of the pay period on June 10, 1998, became concerned about overtime pay. Hickman discussed payment for overtime hours with CleEsther Huewitt. On June 2, 1998, her day off, Hickman called the Labor Standards Bureau of the Equal Rights Division. Hickman identified herself and who she worked for. She spoke to a person named "Joy" regarding overtime pay. Hickman informed Joy what day the pay period started and ended and what her hours of work were, and was advised what amount she should be paid for overtime hours.

What transpired on June 3, 1998, when Hickman returned to work is in dispute.

The administrative law judge resolved this dispute as set forth in his following findings of fact:

"10. At some point during the morning and prior to 10 a.m. on June 3, 1997, the Complainant was informed by Mary Hayes, who (among other things) dealt with payroll for the Respondent, that the Complainant was being paid for 64.5 hours instead of 68.5 hours for the pay period that ended on May 25, 1997. The four hours that were not being compensated involved four hours of time on one of the previous Tuesdays when the Complainant had taken her daughter to seek medical attention. A dispute ultimately arose between the Complainant and Hayes; around 10 a.m. after he arrived for work, Margoles became involved in an attempt to resolve the issues with the Complainant and Hayes. At some point the Complainant indicated to Margoles and to Hayes that she felt the Respondent's manner of paying overtime was illegal. The Complainant also indicated to Margoles that she had called Labor Standards about the overtime issue and Margoles said that he couldn't believe the Complainant had done that. Margoles also said that what the Complainant had done was undermining and underhanded.

11. During a meeting at some point prior to 3:00 p.m. in the afternoon on June 3, 1997, Margoles said to the Complainant he would have to think about the whole situation. The Complainant asked Margoles what he was talking about and Margoles said it may affect their relationship there. The Complainant's shift ended and Margoles asked the Complainant to call the next day. The Complainant left at 3:00 (sic) p.m. on June 3, 1997."

The administrative law judge further found as follows:

"12. The Complainant did call on June 4, 1997 and the Complainant was told by Margoles that she was being terminated for basic incompatibility. The Complainant asked Margoles what he meant by incompatibility. Margoles said he did not think the relationship would work out because she was undermining him and going behind his back. The Complainant said he would hear from her again and that this was not the end of it."

Hickman testified that after informed of her discharge she called Joy at the Labor Standards office because she wanted to know how she should proceed and what she should do at this point. Hickman testified that after speaking with Joy, she had another telephone conversation with Margoles on June 5, 1998, and asked him to prepare a written statement explaining her termination.

On June 6, 1998, Hickman went to the clinic and picked up Margoles' letter which explained her termination. This letter reads in part as follows:

"At the time I hired you, I told you--as I tell all other starting, full-time employees--that this was on a 90-day probationary basis. Because of what I described to you as a basic incompatibility, it became necessary for me to give you termination notice, effective immediately. This occurred well within your probationary period."

DISCUSSION

Section 111.322(2m), Stats., provides that it is an act of employment discrimination to discharge or otherwise discriminate against any individual because, among other reasons, "(a) The individual files a complaint or attempts to enforce any right under s. 103.02." or, "(d) The individual's employer believes that the individual engaged or may engage in any activity described in pars. (a) to (c)."

Section 103.02, Stats., provides in part that "The department (of Workforce Development) shall, by rule, classify periods of time into periods to be paid for at regular rates and periods to be paid for at the rate of at least one and one-half times the regular rates."

Section 103.025(1)(c), Stats., provides that "`Overtime compensation' means the compensation required to be paid for hours worked during periods that the department has classified, by rule promulgated under s. 103.02, as periods to be paid for at the rate of at least 1.5 times an employe's regular rate of pay."

The ALJ concluded that the respondent discriminated against Hickman by discharging her because it believed she had engaged in or might engage in the activity of filing a complaint and/or attempting to enforce a right under � 103.02, Wis. Stats. In a memorandum opinion attached to his decision, the ALJ stated that he found Margoles' articulated reason for Hickman's discharge, i.e., that Hickman had exhibited behavior that was out of control on June 3, 1997, and that combined with prior complaints about her by Dr. Goitia and Mary Hayes it caused him to conclude that there was a clear and present danger to the safety of clinic staff, to be a pretext for unlawful discrimination. The ALJ reasoned that it was unlikely that the respondent would have permitted an employe who had allegedly been out of control from around 10 a.m., with responsibilities which included giving medication, to continue working for several hours and not take any action until after her shift ended.

The respondent requests the commission to reverse the decision of the administrative law judge and dismiss Hickman's complaint. Mr. Margoles, on behalf of the respondent, complains that nowhere in the administrative law judge's decision and memorandum opinion appears any discussion or consideration of the issue of Hickman's credibility. Margoles argues that three key issues arose during the hearing causing it to become apparent that Hickman was being untruthful, and that the ALJ erred in not considering them in his decision.

The commission has considered the respondent's arguments regarding Hickman's alleged lack of credibility, but for the reasons set forth below, find them to be unpersuasive.

Margoles argues that because Hickman testified that she was prompted to call the Labor Standard's Bureau because Huewitt told her the respondent would not pay her time-and-a-half for overtime hours whereas Huewitt testified that she did not tell Hickman that the respondent would not compensate her for overtime hours but that the respondent in fact did pay overtime, this undermined not only Hickman's credibility but her theory of the case. Margoles argues that the thrust of Hickman's case was that she was discharged the day after telling him she had called the state about the respondent not paying overtime pay and that he was angry she was undermining him. Margoles argues that were the respondent not paying overtime, he could well be seen as being angry that Hickman had reported this to the state. Margoles argues that the implication that he would be upset that an employe called a state agency does not square with the fact that Hayes and other employes are in daily communication with various federal, state and local governmental agencies because as a medical practice the respondent deals with a number of different laws, regulations and protocols, and the respondent is audited, inspected and surveyed on an ongoing basis. Further, Margoles argues that Hickman's credibility is undermined because Knox testified that she, too, had called the state--regarding her right to vacation pay--and that his reaction to hearing about the call was that he "would try to do what was fair."

First of all, whether or not Huewitt did or did not tell Hickman that she would not be paid overtime for overtime hours worked, Hickman's conversation with Huewitt caused her to become concerned about her entitlement to overtime pay and prompted her to call Labor Standards. Hickman had just worked a string of nine consecutive days, put in a lot of hours and was asking other employes about overtime pay. Both Hickman and Huewitt testified that they had discussed the fact that payment of overtime was affected by the manner in which the respondent's pay periods were structured. Knox also testified that Hickman had asked her about overtime pay. But assuming that Hickman had contacted Labor Standards through a misunderstanding of what Huewitt had said about overtime pay, nevertheless Hickman did contact Labor Standards about overtime pay and Margoles terminated her employment on the very next day after becoming aware that she had contacted Labor Standards. (1 )

As the administrative law judge indicated in his memorandum opinion, citing, Frierson v. Ashea Industrial Systems, (LIRC, 4/6/90), a causal connection between Hickman's contacting Labor Standards about her right to overtime pay and her discharge may be inferred from the close proximity in time of those events.

There can be no dispute that Hickman's concern that she might not get overtime pay was grounded in good faith as it is undisputed that the respondent's practices with respect to calculation of overtime was the source of much confusion. Huewitt testified, "As long as I have worked for Mr. Margoles, I have never understood that pay period thing." (Summary, p. 38) Knox testified, "I never had a clear understanding of overtime when I worked at Milwaukee Immediate Care Center..I was never clear on that because the cut off day (payroll period) could be a Wednesday, but the (work) week wouldn't end until that Saturday. So then if the pay week (work week) ends on Saturday, and the (payroll period) cut off period ends on Wednesday, what about the days after that?" (Summary, p. 33) Knox, who had overheard Hickman's June 3, 1997 conversation with Mary Hayes, further testified that "It was just a simple question regarding overtime that Sonya had asked Mary about. Sonya had asked about the pay period and how it cut off and she wasn't really understanding, because Sonya had asked me earlier, and I couldn't answer her. I'm the one that told Sonya to ask Mary." (Summary, p. 28) Even Hayes admitted awareness of some employe's confusion regarding overtime pay. (Summary, p. 44)

Margoles asserts, however, that there was no reason for him to become angry that Hickman had contacted Labor Standards because the respondent did pay overtime. He points to the fact that the respondent has daily communication with governmental agencies as evidence that there was no need for him to be upset over Hickman's contact with the state. However, the fact that the respondent paid overtime does not mean that Margoles would not be angered by an employe who had gone to the state believing that she was entitled to but might not be receiving overtime pay. Further, as far as Margoles' assertion that the respondent had daily communication with various governmental agencies, testimony by Hayes showed that it was not unusual for Margoles to invite employes to call to find out what the law is, and that she (Hayes) has called to find out what the law is. However, Hickman was not "invited" by Margoles or Hayes to call the Labor Standard's Bureau to find out what the law is. Concerned about her entitlement to overtime pay, Hickman took it upon herself to call the Labor Standard's Bureau regarding the respondent's practice with respect to overtime pay. Hickman testified that she presented Margoles with the hours she would have worked and the compensation she was supposed to be paid, and told him that she had checked with Labor Standards to see what the correct procedure was for overtime pay. There is ample reason to believe that Hickman, having decided on her own to contact a governmental agency to determine if the respondent was complying with the law as opposed to the respondent having an employe contact a governmental agency to find out what the law is, would likely generate a vastly different response on the part of the respondent. According to Hickman, it did. Hickman testified that after telling Margoles she had contacted Labor Standards, Margoles was upset with her, he stated that he could not understand why she had done that, and that he told her that what she had done was undermining and underhanded. And the very next day after being apprised that she had contacted the state, Margoles terminated Hickman's employment.

Lastly, while Margoles' reaction to Knox's contact with the state about vacation pay offers some support for Margoles' position, this evidence is not conclusive on the issue of what occurred between he and Hickman. Further, a distinction exists between the situation involving that of Knox and Hickman. Knox had been an employe with respondent for about 4 or 5 years at the time of her incident whereas Hickman had been employed for less than two months when she called the state about overtime pay. The evidence suggests that this accounted for the difference in Margoles' reaction. In this regard it cannot help but be noticed that after Margoles became aware that Hickman had contacted the state, the oral explanation that Margoles gave for her termination was extremely vague--basic incompatibility--which he then followed up with a written letter repeating that reason and emphasizing that her termination had occurred within her 90-day probationary period. (2 ) The vagueness of the reason given for Hickman's discharge together with his emphasis that her discharge occurred within her probationary period suggests that it was Hickman's short tenure made a difference in his response. However, probationary employes are entitled to the same protections afforded against unlawful discrimination under the Fair Employment Act as are regular employes.

In a further effort to challenge Hickman's credibility, Margoles has also asserted that Hickman's memory was variously selective, deficient or wrong on some of the most basic facts. As evidence, Margoles argues that while Hickman testified that he never arrived at the clinic before 2 p.m., every other witness testified that he routinely arrived between mid to late morning, that Hickman was uncertain as to the times of her meetings with him on her last day of work, and that in a statement provided to the division prior to the hearing Hickman claimed that she very seldom worked with Dr. Goitia because he was never there when she was, but testimony by witnesses at the hearing was that Dr. Goitia was at the clinic for several hours every weekday morning and then again from mid-afternoon and that these were both times during Hickman's shift. These assertions also fail to provide reason to question Hickman's credibility. Contrary to the assertion by Margoles, the other witnesses' testimony was not uniform as to his arrival time. Knox testified that Margoles "arrived late, like 12:00 or 1:00," but would occasionally be in at 10 or 11 if he had a meeting. Hayes testified that Margoles would arrive around 11:00 a.m., if he did not have meetings. Huewitt testified that Margoles would "generally arrive before noon." Further, since Hickman's duties included taking patient histories and assisting with giving physicals, it may have simply been 2:00 p.m. before she normally saw Margoles at the clinic. Also, while Hickman may have been uncertain about when she met with Margoles, there were also variations in the other witnesses' testimony as to when Hickman met with Margoles on June 3, 1997. Hayes testified that it was "before noon" when she and Hickman met in Margoles' office. It was Huewitt's recollection that Hickman first met with Margoles in the early morning hours, "like maybe 10:00." Knox stated that Hickman's first meeting with Margoles was after Hayes arrived at the clinic, which was usually 11 or 11:30 a.m. Finally, the import of Hickman's statement to the division about Dr. Goitia was not that he was never there when she was, as Margoles seems to assert. The point being made by Hickman was simply that she did not spend much time working with Hickman. What Hickman asserted in her statement was that her hours were from 8 to 4 p.m. and that "Dr. Goitia never arrived to the facility until about 8-9:30 a.m. daily and then usually left at about 10-10:30 a.m. Then, another M.D. would take over. I very seldom worked with him." (3 )

Next, Margoles argues that Hickman's credibility was discredited because in a written statement to the division investigator she stated she had a witness, Knox, who could corroborate that she was not hostile on June 3, 1997, and who "had heard the entire conversation that had taken place on that particular day," but Knox testified at the hearing that while she could overhear the conversation between Hickman and Margoles when it started at the nurses' station, she could not hear anything that was said between them in Margoles' office. Further, based on Knox's written statement that "I was there on the day of this incident, and heard pretty much the complete conversation between first Ms. Mary Hayes, then Mr. Perry Margoles." submitted to the division investigator in support of Hickman's claim, Margoles apparently also claims that Knox's credibility is somehow called into question due to her hearing testimony that she could not hear anything said between Hickman and Margoles in Margoles' office. Margoles' arguments above fail to establish that either Hickman or Knox was not credible. Knox's hearing testimony corroborates Hickman's assertion that she was not hostile on June 3. Knox testified that she first overheard a conversation between Hickman and Hayes regarding overtime pay at the nurses' station, and then the conversation between Hickman and Margoles shortly after he entered the building up to the point Hickman and Margoles entered Margoles' office. Knox then gave the following testimony:

"The whole time that I was overhearing the conversation between Ms. Hayes and Ms. Hickman and the conversation between Ms. Hickman and Mr. Margoles, Ms. Hickman never raised her voice. Ms. Hayes was the one that got very defensive about the conversation and Ms. Hayes(') answers to Ms. Hickman's questions were very harsh.

I never heard Ms. Hickman raise her voice during the entire time that Ms. Hickman was employed with Milwaukee Immediate Care Center..

During the time that Ms. Hickman was in Mr. Margoles' office, he did close the door when they entered, but it was not shut all of the way. I am right there at the front desk, and so if Ms. Hickman (had) raised her voice while she was in Mr. Margoles(') office I would have heard her. If she was that loud and irate, there is no reason why I would not have heard her, because I am sitting right there at the front desk."

(Summary, p. 23)

Knox's hearing testimony is clearly supportive of Hickman's statement to the investigator that she was not hostile on June 3, 1997. Knox's testimony not only establishes that Hickman had not been hostile during her meeting with Hayes and through the time of her first meeting with Margoles, contrary to argument by Hayes and Margoles, but also that it was not characteristic of Hickman to be hostile because Knox had never heard Hickman raise her voice during the entire time that Hickman had been employed with the respondent. Further, Knox's hearing testimony is not inconsistent with the statement that she provided to the division investigator and thus provides no basis for questioning her credibility. As noted above, Knox's statement to the investigator was simply that she "heard pretty much the complete conversation between first Ms. Mary Hayes, then Mr. Perry Margoles." Knox's written statement was not specific as to where she had heard the complete conversation between Hickman and Hayes. At the hearing, Knox readily acknowledged that after Hickman's conversation with Hayes, the conversation she heard between Hickman and Margoles was before the point they entered Margoles' office.

Next, Margoles apparently maintains that contrary to Hickman's testimony that her financial deterioration was caused by her loss of employment from Milwaukee Immediate Care Center, that either what he purported to be a Milwaukee County circuit court printout showing dozens of civil judgments entered against one "Sonya Hickman," or Hickman's responses to questions about her financial situation and a printout of several of the judgments, showed that she was already in serious financial difficulty prior to as well as during her employment with the respondent, and that this therefore causes Hickman not to be a credible witness. This argument also fails. Hickman, whose employment was terminated by the respondent on June 4, 1997, emphatically denied that with the exception of a judgment for money (08/07/97) regarding an April 28, 1997 check of hers that was not honored by the bank and a judgment of eviction (07/29/97), none of the judgments had anything to do with her. (4 ) Hickman testified that there was another "Sonya Hickman" out there and that she was currently working with the credit bureau to clear the matter up. And, indeed, several of the civil judgments against "Sonya Hickman" listed an address where the complainant, Sonya Hickman, herein had never resided. Lastly, Margoles apparently finds it unbelievable that complainant Hickman did not know about all this and take any remedial action to clear her credit sooner since there had allegedly been judgments entered against "Sonya Hickman" as far back as 1986. However, as noted above, several of the judgments against "Sonya Hickman" had a different address than that of the complainant Hickman herein. Further, Hickman's testimony indicates that it was when a credit report was generated in connection with her decision to purchase a home after moving to Florida, which was around the end of October 1997, that she became aware of all the outstanding judgments against "Sonya Hickman."

Further, Margoles apparently finds reason to question Hickman's credibility, asserting that in addition to Hickman's financial stress during 1997, as evidenced by her eviction from her home and having her car repossessed after her dismissal from the respondent, she did not appear at her unemployment insurance hearing-- the stated reason being attendance at her grandmother's funeral--which resulted in a requirement that she repay several thousand dollars, yet she did not take advantage of the offer by the administrative law judge to have the hearing reopened by providing a copy of her grandmother's death certificate. Margoles asserts, "Does it make sense that a person who would go to the lengths that she has pursued in this proceeding, would not make any effort during the same period to relieve herself of the unemployment compensation indebtedness?" It is not clear what Margoles means by his assertion that Hickman has gone to some extraordinary effort to pursue her employment discrimination claim. Furthermore, Hickman's testimony showed not that she had been given an opportunity to "reopen" the hearing, but that she had an opportunity to get the unemployment insurance hearing rescheduled before the hearing was actually held. Hickman testified that prior to the unemployment insurance hearing she had tried to get the unemployment insurance hearing rescheduled. She testified that she had been caring for her grandmother in Mississippi when she died and that the funeral was held on the same day that the hearing was scheduled. Hickman testified that she made an effort to get the unemployment insurance hearing rescheduled by calling the hearing office, and was advised that she needed to submit a death certificate. Hickman testified that she never did this because in addition to being so upset and distraught about the funeral, not only did she not have time to run around and get a death certificate, she did not know how to go about doing this in a strange city. The record does not show that Hickman had been offered an opportunity by the administrative law judge to have the unemployment insurance hearing reopened by providing a copy of her grandmother's death certificate.

Finally, Margoles apparently argues that the fact that Hickman had complained to OSHA and the City of Milwaukee Fire Inspector about the respondent after her dismissal was evidence consistent with his position that she had the potential to go "out of control" and "lacked a sense of proportionality" as he asserts she was on June 3, 1997, leading him to dismiss her. But this argument by Margoles ignores two important points: First, what Hickman may have done after her discharge is not really relevant, the issue presented here is what caused Margoles to terminate Hickman's employment on June 3, 1997; and two, the testimony by Knox and Huewitt contradicts Margoles' assertion that Hickman was "out of control" on June 3, 1997.

Knox testified that Hickman never raised her voice with Hayes, or Margoles before going into his office, and that she would have heard Hickman's voice if Hickman had been loud and irate in Margoles' office. Further, Knox testified that she had never heard Hickman raise her voice during the entire time Hickman was employed at the respondent, nor had she ever observed Hickman having difficulty getting along with any other employe. Similarly, Huewitt testified that she just heard the elevated voice of Hayes when Hickman, Hayes and Margoles met, and that she, too, had never heard Hickman raise her voice during the entire time Hickman had worked for the respondent, nor had she ever seen Hickman angry.

Margoles also challenges the credibility of Knox and Huewitt, however, arguing that they were witnesses for Hickman and were hostile to the respondent because he had been taking to them ongoing patient complaints about them and had put them on probation. Margoles asserted that within a few months of Huewitt's return to work in 1996 that he started getting a stream of complaints about her, but then stated that he often did not tell employes about the complaints. Margoles further asserted that by the end of 1996 and beginning of 1997, he had a very serious problem with Knox and Huewitt working together, that they were judgmental and opinionated about just everything, and that he was getting 2 or 3 complaints a week from patients, one of whom was offended by the words Knox and Hayes were using.

However, Huewitt cites Margoles' complaints as arising after she was sent a witness questionnaire in connection with Hickman's complaint. Huewitt testified that she had been working with Margoles for some time and that nothing had changed as far as what she had been doing at work.

Similarly, Knox testified that subsequent to Hickman's discharge Margoles issued her a written warning after he found out that she was a "supporter of Hickman's." Knox testified that she had never been written up before. Knox testified that her write-up was about a patient who had complained that Knox was putting several patients before her and about profanity. Knox testified that after looking at the "day sheet," it was learned that there had been only one other person before this patient, and that this patient came into the office several times after that and was cursing at Hayes and Margoles. Knox further testified that everyone had used profanity at the front desk, including Margoles. Knox also testified that during the period from January to June prior to Hickman's discharge, that Margoles had not advised her about any conduct that was the subject of a patient complaint.

Moreover, while Margoles has attempted to raise questions about the credibility of Hickman, Knox and Huewitt, it cannot be ignored that the evidence raised serious credibility concerns about the respondent's case. For example, in their initial statements submitted to the division investigator in response to Hickman's complaint of retaliation, Margoles and Hayes initially contended that the problem was that Hickman had gone out of control over the matter involving the 4 hour discrepancy on her time card and that it had nothing to do with overtime. As Margoles wrote:

"I did not dismiss her in `retaliation' for her call to `Labor Standards' regarding questions she had about the `way (she).was being paid.' Periodically, employees have had various questions about such matters, and as a lawyer I have no difficulty with employees confirming the facts involved and their various rights as employees.

On the other hand, I did have a concern about this incident, but it had nothing to do with her inquiry as to how overtime is to be paid. It started with Sandra's (sic) computing and writing on her time card the number of hours for which she expected to be paid. She inflated this figure by a number of hours beyond those for which she had clocked in. That the issue was Sonya's misrepresenting the hours for which she was entitled to payment (and not overtime which was not involved here), easily can be verified by examining Sonya's time card and by speaking with Ms. Mary Hayes, head of our business office..

Of greater concern to me was that Sonya resisted my attempts at the time the dispute arose, to resolve it between her and Mary who had brought this to Sonya's attention by way of questioning her about it. Sonya refused my repeated attempts to get her even to come into my office to walk through it and talk it out with Mary in my presence.

When on my fourth attempt, Sonya reluctantly did so, she was utterly hostile and inflexible, out of control, and then unleashed unwarranted, defamatory allegations against the clinic and me."

(Exh. A, Margoles' July 25, 1997 letter to Equal Rights Officer James Chiolino)(Emphasis in bold text added)

Similarly, Hayes' October 27, 1997 statement submitted to the division indicated that the problem involved a dispute over the time card discrepancy. Hayes wrote:

"There were repeated instances at the clinic when Sonia's (sic) behavior was out of control. The incident leading to her dismissal by Mr. Margoles arose when I showed Sonia her time card on which she had written 4 hours more than she had actually did (sic) worked. She became very angry made threats and broke off the conversation. Mr. Margoles tried three times to get her to sit down with me & him to talk through the situation. She steadfastly refused. On the fourth attempt he got us together in his office but it was to no avail. Sonia continued to be out of control, accused him and the clinic of doing illegal and unethical things. It was impossible to carry on a conversation with her. Later Mr. Margoles tried talking with her but she remained very angry, out of control and threatening, and could be heard throughout the clinic."

(Exh. 4)(Emphasis in bold text added)

Nowhere in Hayes' statement does she mention anything about overtime pay.

The fact that Margoles and Hayes' initial responses to Hickman's complaint cite Hickman's alleged behavior in connection with an alleged dispute over a time card issue as the reason for her discharge raises questions about their credibility because they were not truthful when responding to Hickman's complaint.

Other credibility issues are raised by the respondent's case as well. For example, Margoles maintained that on Hickman's last day of work that from about 10 a.m. on she was "out of control," "ballistic," "seething" and "irrational." It is simply not believable, given Hickman's duties, which included giving injections and dispensing medications, even if, as Margoles asserted, he had "never encountered this situation before," that he would have risked catastrophe, substantial liability, and even patient death by permitting Hickman to remain at work. Further, in direct contrast to Margoles' characterization of Hickman's behavior and state of mind on June 3, 1997, Margoles admitted that no physician with whom Hickman had worked that day ever came to him because of a belief there was a problem with Hickman and that he needed to speak to her. Still further, it is simply not credible that Margoles, who claims he awoke in response to Hickman's alleged out of control behavior in the early morning hours in "a cold sweat," fearing that "there was a clear and present danger to the safety of the people in the clinic" and that she might shoot someone, would have permitted Hickman to return to work to pick up his written explanation for her termination if Hickman's condition had been as Margoles claims it was.

Based upon all of the foregoing, the record supports the ALJ's acceptance of the complainant's version of what caused her discharge, and rejection of the respondent's articulated reasons for her discharge as a pretext for unlawful discharge because it believed she had engaged in or might engage in the activity of filing a complaint or attempting to enforce a right under Wis. Stat., s. 103.02.

The commission has modified the amount of the attorney's fees awarded by the administrative law judge to include an additional sum of $2,775.00. This represents the fee expenses Hickman incurred for her counsel's brief in opposition to the respondent's petition for commission review. Other than a request made to deny these fees as part of its request for reversal of the ALJ's decision, the respondent, as it did before the ALJ, has failed to challenge any specific item of Hickman's attorney fee request. Finding this fee request to be reasonable, this amount has been added to the previous fee award ordered by the ALJ.

cc:
F. Thomas Olson
Perry Margoles

Appealed to Circuit Court. Affirmed November 2, 2000.

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Footnotes:

(1)( Back ) Surely the respondent does not contend that Hickman did, in fact, understand Huewitt but nonetheless called Labor Standards so that she would be able to tell Margoles what she had done so that he would discharge her, thus providing her an opportunity to "get back" at him through filing a complaint alleging discrimination because she had engaged in activity described in � 111.322(2m).

(2)( Back ) Margoles claims that he used the term basic incompatibility, having recently read employe management books which made the point, "never be confrontational, avoid provoking a problem employe who you are afraid could do other things." For reasons discussed below in conjunction with other testimony by Margoles, this assertion by Margoles is not credible.

(3)( Back ) There was testimony that Dr. Goitia would return to the clinic in the afternoon at "3:00" or "between 3:00 and 5:00," but this is not inconsistent with Hickman's statement that she seldom worked with Dr. Goitia.

(4)( Back ) Portions of the hearing tapes, including that portion of the hearing tape pertaining to Hickman's testimony regarding the civil judgments against one "Sonya Hickman," were reviewed for purposes of deciding this case.