EUGENIA AMAN, Complainant

KINDRED NURSING CENTERS EAST LLC,
d/B/a FAMILY HERITAGE MEDICAL AND 
REHABILITATION CENTER 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 following sentence is added to Finding of Fact 30. for purposes of clarification:

In their discussions, Williams only referenced Aman's age and vision when communicating to her concerns expressed by residents or their families, and by a state surveyor.

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

Dated and mailed December 16, 2003
amaneug . rmd : 115 : 9 

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

Disability

The complainant concedes that she is not actually disabled within the meaning of the Wisconsin Fair Employment Act (WFEA), but argues, based on her contention that Director of Nursing Williams constantly referred to complainant's vision in their discussions of her performance, that respondent perceived her to be.

It should first be noted that the record does not support a conclusion that the respondent had reason to be aware that complainant had a prosthetic eye or suffered from glaucoma or cataracts, but only that the respondent was aware that the complainant wore glasses. This fact alone would not be sufficient under the circumstances present here to support a conclusion that the respondent perceived complainant to be disabled.

Although the complainant contends that Williams "constantly" referenced her vision problems when discussing her performance, the commission concludes that the evidence of record does not support a finding to this effect, but instead that Williams only referenced complainant's vision when communicating to the complainant concerns expressed to Williams by residents or their families, and by a state surveyor.

The complainant failed to prove that the respondent perceived her to be disabled and, as a result, failed to prove her charge of disability discrimination. Even if she had proved that respondent perceived her to be disabled within the meaning of the WFEA, however, she failed to prove, as discussed below, that she was treated less favorably than similarly situated employees in regard to any of the subject employment actions.

Compensation

Although the record shows that the complainant was paid less than certain other nurses in the facility, it also shows that these other nurses were in positions of higher authority, had more seniority in the facility, or had been licensed longer as registered nurses (RN), and that these were the criteria utilized by the respondent to set compensation rates. The complainant argues that she was licensed as an RN for a longer period of time than the respondent credited her. However, the record shows that the respondent relied upon the date which the complainant had provided in her application for employment (exhibit R-1), i.e., March of 1996. Complainant argues that she indicated on this application that her RN license had been "renewed" in March of 1996, but this is not what the exhibit states, i.e., in the blank under the heading "Date Issued or Application Made," the complainant wrote "3-96" with no other explanation.

The complainant failed to show that she was treated less favorably than similarly situated employees in regard to her compensation.

Terms and Conditions

In her charge, the complainant contends that the respondent failed to alert her to the availability of higher level positions which it filled with younger, non-disabled nurses. However, complainant failed to identify these positions, or to show how or when they were filled, and it would have to be concluded as a result that she failed to sustain her burden to prove that she was discriminated against in this regard.

The complainant also alleges that she was discriminated against in regard to Williams' May 2000 evaluation of her performance. However, the only rating which appeared not to be merited was modified by Kreuser, and this modification did not change the overall rating. It is interesting to note in this regard that certain areas which Williams identified as needing improvement paralleled the areas so identified by former Director of Nursing Trickle in his June 1999 evaluation of the complainant, and complainant testified that she had "no reason to believe that he [Trickle] took any action against me that I considered discriminatory." Moreover, the fact that Trickle's overall rating of complainant was in the satisfactory range while Williams' was in the needs improvement range is not surprising given that Trickle had been terminated for the facility's failure to meet standards and Williams had been appointed to the position with a charge to clean things up. Finally in this regard, the complainant failed to offer any evidence to show that other nurses whose performance was similar to hers received more favorable evaluations from Williams.

The complainant failed to show that she was treated less favorably than similarly situated employees in regard to Williams' May 2000 evaluation of her work performance.

Disciplinary Suspension

Williams concedes that complainant "made no more medication errors than other nurses." Assuming for purposes of analysis, although this is not established in the hearing record, that a record of medication errors comparable to the complainant's was not utilized by the respondent as the basis for discipline of these other nurses, it is appropriate to examine complainant's other performance deficiencies to determine whether the suspension was reasonably justified. These are as follows:

(1) On or around August 5, 1999, a resident complained that the complainant was rude to her, which resulted in a verbal warning and a directive that the complainant no longer give medications to this resident -- the resident apologized several days later and stated that she wanted the complainant to continue to administer her medications

(2) On or around December 3, 1999, a resident complained that the complainant failed to attend promptly to a request and the complainant received a verbal warning as a result-the complainant admitted in her written comments on the disciplinary report that she told an aide to whom the resident had complained that she would bring the resident's pill to her when she finished what she was doing, and stated in her testimony that she ended up taking the wrong medication to the resident.

(3) On or around December 7, 1999, the complainant received a verbal warning for failing to perform summary charting duties for over a month-the complainant does not dispute this

(4) It was reported to the respondent by a kitchen worker on or around January 21, 2000, that the complainant said to her "kiss my ass" -- in her written comments on the disciplinary report, the complainant first denies saying this, and then notes that "perhaps the 'A' word would have been a natural exclamation" -- in her testimony, the complainant denies using the word "ass"

(5) On or around January 28, 2000, the complainant received a verbal warning for failing to have her badge for punching in and out of work-the record shows that all employees were required to present their badge each day, and the complainant does not dispute that she lost hers

(6) On or around February 24, 2000, clinical manager Pritzl reported that complainant had failed to chart medications given to a new admission as required, and complainant was given a verbal warning as a result -- complainant signed the warning without comment, and testified at hearing that neither Pritzl nor Doyle (the other clinical manager) who were her superiors ever commented on her age or vision although "they liked to pick on me"

(7) On or around March 24, 2000, clinical manager Doyle reported that complainant had failed to complete required admission paperwork on her shift and complainant received a written warning as a result-complainant commented on the disciplinary report that there had not been enough staff to complete the admission paperwork, and then admits that it should have been done but why was it left to person "called to come in on another wing and expected to do it all?

(8) On or around March 31, 2000, a certified nursing assistant (CNA) complained to clinical manager Pritzl that complainant had directed her to physically transfer a patient by herself and, when the CNA explained that she couldn't do it alone, told her to "shut up"-in her hearing testimony, the complainant states that she did not recall the incident, and that the report was falsified

(9) On or around April 14, 2000, a resident complained that the complainant had moved her call button so that the resident could no longer reach it, and the complainant received a final written warning as a result-complainant signed the disciplinary report without comment-in her testimony, the complainant states that she moved the call button to the hand which had more strength, which is not credible since the record shows that the complainant moved the button to another side because the resident had been constantly banging it-in her testimony, Williams states that the complainant admitted moving the call button so that the patient could not reach it, for which she was disciplined, but Williams could not substantiate the resident's complaint that the complainant had physically abused her in the process so she wasn't disciplined for patient abuse

(10) Clinical manager Doyle reported that, on May 21, 2000, complainant refused her request to transfer a CNA to her unit during a 20-minute staffing shortage

(11) On May 21, 2000, according to Williams in a contemporaneous memo she authored, complainant objected to her schedule for May 22 during a telephone conversation and, when Williams wouldn't change it, hung up on her -- Williams testified that she later learned from a staff member that the complainant had said she was going to call in sick on May 22 as a result, and the complainant did in fact call in sick that day-the complainant testified at hearing that she called in sick on May 22 because a resident had run over her foot with a wheelchair on May 20 and she couldn't get her foot into a shoe as a result. The commission does not find the complainant's testimony in this regard credible given that she did not report her injury to respondent as she had in 1999 when she had sustained a similar injury, the testimony of a co-worker which she offered did not specify whether the witness was referring to the 1999 incident or a 2000 incident, and the complainant reported to work on May 21, the day after the injury was allegedly sustained.

Based on the above, the complainant was issued a 4-day suspension for being resistant to direction; disruptive to staff relations and morale; making inappropriate remarks to staff; being rude to staff, families, and residents; and not effectively managing CNA's. In a disciplinary action plan discussed with the complainant on May 31, 2000, after her suspension had been served (exhibit #R-6), the complainant was told she must improve her performance in these areas.

Due to the number and nature of the complaints about the complainant's performance from a variety of sources, the record supports a conclusion that the disciplinary suspension was reasonably justified. Moreover, the complainant failed to show that employees with similar records were treated differently than she was in regard to the imposition of discipline.

The complainant failed to show that she was treated less favorably than similarly situated employees in regard to the 4-day disciplinary suspension.

Termination

On June 1, 2000, complainant's first day back at work after her suspension, it was brought to the complainant's attention 40 minutes prior to the end of her shift, that a resident's PICC line (a long intravenous catheter line which is inserted into a vein further than a regular IV line and which is used for long-term antibiotic or other IV purposes) had been partially removed. Rather than fixing the line, the complainant covered it so the resident could not remove it any further and told the LPN who had brought it to her attention that someone on the next shift could fix it. It was the complainant's responsibility to take care of it even if the resident was in no immediate danger.

Melissa Sprasky, the night shift supervisor at the time of this incident, testified on complainant's behalf. She stated that complainant called her to explain what "had gone on;" that she went over near the end of complainant's shift to assess the situation; that Sprasky put in a couple of sutures and explained to the day shift nurse what she had done so the day shift nurse could take over; and that the resident was never in danger or in distress.

Sprasky testified that she submitted exhibit #C-9 to Williams "within a week of the incident," and that she did not recall writing another statement. As a part of its cross-examination, respondent showed Sprasky exhibit #R-12 which she agreed contained her handwriting and her signature "so I must have written a second statement" regarding the incident. Exhibit #R-12 is dated June 1, 2000, and states as follows:

I was called by Rosie LPN on mainside @ 0620 & asked if Karen RN was here. Told her no & asked what she needed. Stated she thought res had pulled her PICC line out. I then said "isn't Genie [complainant] over there?" She said Genie told her "days can deal with it." I told her I'd be right over.

When I got over to mainside, the res PICC line was out but still had 3 sutures in place. 0 bleeding, swelling or redness at site. Sutures removed without difficulty. At that time Jacki RN [day shift RN] came in & she was updated on situation. I then returned to the villa.

Exhibit #C-9 is undated, addressed to "To whom it may concern," and states as follows:

The morning of June 1st, 2000, I was the charge nurse working in the villa of Family Heritage. Around 0630 that morning I received a call from Rosie Anderson LPN to please come to the mainside nurses station. When I got there, the female resident, who was in no distress, had her PICC line pulled out of her arm. There was no bleeding and there were only two sutures holding the line to her skin. I simply cut the sutures and at that time the clinical manager, who was at the desk came upon the situation. I explained to her that the patient was in no distress and let her take over from there. I then went back to the villa to finish up my morning work.

I feel the situation was blown out of proportion. The main concern is the patient's well being and safety, and through my assessment I felt the situation with her PICC line was minor and her needs were met. From the time I have worked with Genie Aman, I have only seen her provide excellent patient care and be the patient's advocate.

The commission concludes that Sprasky wrote R-12 immediately after the incident occurred, and that she wrote C-9 later in an apparent effort to help the complainant. The record supports a conclusion that it was the complainant's responsibility to attend to the resident, that she failed to do so even though there was 40 minutes left before the end of her shift, that she stated that the next shift could take care of it, and that a supervising nurse from another unit was called in and began the process for re-inserting the PICC line and turned this process over to the day shift nurse when she reported. Even though the resident may have been in no immediate danger and the complainant and Sprasky have attempted to characterize the removal of the PICC line as a minor problem, the record shows that it is significant enough that, whenever it occurs, it must be reported to the resident's physician and to the resident's family. Moreover, it was significant enough that, when it was reported to supervisor Sprasky, she came over from another work area and immediately began the process for re-inserting the line.

The record supports a conclusion that, given her performance and disciplinary history, the respondent was reasonably justified in terminating the complainant after the PICC line incident. The incident was a significant breach of the complainant's responsibilities, and it occurred on her first day back at work after serving a 4-day suspension for unsatisfactory performance. In addition, the complainant failed to show that she was treated less favorably in regard to her termination than employees with comparable performance/disciplinary histories.

The complainant failed to prove that she was treated less favorably than similarly situated employees in regard to any of the subject employment actions. Although she argues that she wasn't suspended or terminated until she had engaged in a protected fair employment activity on or after May 5, 2000, it should be noted in this regard that, prior to engaging in this activity, complainant had received numerous warnings, including a final written warning. Obviously, the respondent was concerned enough about the complainant's performance prior to May 5 that it had issued her a final written warning prior to that date.

The complainant failed to sustain her burden to prove discrimination or retaliation as alleged.

cc: Attorney Cathryn E. Albrecht

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uploaded 2003/12/22