KATHLEEN M CROOK, Complainant

COUNTY OF VERNON, 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.

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

Dated and mailed February 23, 2004
crookka2 . rsd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

Crook alleges that in retaliation for filing the complaint of retaliation in ERD Case No. CR200000829, the respondent further retaliated against her in the following manner:

1) The respondent denied her request for an extension of her Family Medical Leave and filled the position she held as Personnel Assistant, despite knowledge of her pending Worker's Compensation application for hearing and a probable cause finding of retaliation;

2) (Apparently) that the respondent did not provide her other employment despite her doctor's opinion that she would be able to return to work for the County in a position that was safely removed from the political and interpersonal problems she had been experiencing; and

3) That despite advice from her attorney that her health insurance could not be terminated while a claim for Worker's Compensation was pending, the respondent terminated her medical insurance on July 31, 2000, and as a result she had been forced to obtain private insurance, for which she had paid the sum of $1,525.16 to date.

In concluding that there was no probable cause to believe that the respondent had violated the Act by discriminating against Crook because she had filed a complaint of discrimination, the ALJ found as follows:

Personnel Coordinator Lisa Berg reasonably interpreted Dr. Lewis' (June 26, 2000) memorandum as meaning that Crook could not return to her former position as Personnel Assistant, but could return to work in a different department. Berg's decision to fill the Personnel Assistant position was based on her interpretation of Dr. Lewis' memorandum, the fact that Crook had exhausted her medical leave, and Berg's need to have someone in the position. It was not based on a desire to retaliate against Crook because she had filed complaints with the ERD. (See findings 7, 8 and 11.)

The County notified Crook in July 2000 that it would be filling the Personnel Assistant position, that she would be on personal leave without pay, and that if there were available positions with the County she was free to apply for them. At no time relevant to the complaint did Crook apply for any other position with the County or express any interest in returning to the job of Personnel Assistant. (See finding 9.)

The July 17, 2000 form the County sent to Crook concerning her medical insurance was somewhat confusing, but its mailing to Crook was not in retaliation for her having filed complaints with the ERD. Under normal circumstances, the County would have notified its insurance carrier around the end of September 2000 (60 days after July 31, 2000) to retroactively terminate Crook's insurance, but through oversight that did not happen, and the insurance carrier continued to consider Crook covered. By sometime in January 2001 the County and the insurance carrier resolved the matter-as of December 31, 2000, Crook's coverage under the group health plan was canceled. The delay in canceling Crook's insurance was the result of oversight and not an act of retaliation against her for filing complaints with the ERD. [See findings 12 (there are two findings that are numbered as 12), 13 and 14.]

In her petition for review Crook argues that the respondent engaged in discriminatory conduct by filling her vacant position in the Personnel Department after she left with a diagnosis of major depression because for 14 months the County made every effort to eliminate her position, continually stating that it wasn't a necessary position.

However, Berg testified that from the time she took the position of Personnel Coordinator on, as far as she was concerned, the Personnel Assistant's job was a given, a position that was necessary in her office. Berg testified that it was not until several months after she started employment that she stumbled across a resolution that involved elimination of Crook's position. Berg testified that she made an inquiry as to the status of that resolution and that whomever she asked about it told her "You don't need to worry about it," or, "It never got acted upon and.it was left at that." Berg testified that other than the resolution she came across, neither County Clerk Sharon Solverson nor anyone else had ever discussed any efforts to eliminate Crook's position and that she was not aware that there were efforts to eliminate Crook's position. Further, Berg testified that she was not aware Crook had filed complaints with the ERD when she took the job of Personnel Coordinator, and that she did not become aware of this until quite a bit later.

If an employer does not know that an employee has made a complaint of discrimination, it obviously cannot be motivated by such knowledge in the conduct it undertakes. Aken v. Blood Center of Southeastern Wis. (LIRC, 12/23/98); See, also, Acharya v. University of Wis. (LIRC, 01/19/82).

Focusing on Berg's testimony that she did not become aware Crook had filed complaints with the ERD until quite a bit later after beginning employment with the respondent, Crook argues that Berg's testimony is simply not believable. Crook argues that it is not because on Berg's first day of employment with the respondent (May 3, 2000) Berg wrote a letter to her asking that she go see Dr. Van Dyke for a second opinion regarding her request for Family Medical Leave. Crook argues that Berg's office is in charge of Family Medical Leave requests and that when Berg began on May 3, she was on Family Medical Leave, which was supported by her doctor's March 30 letter. Dr. Lewis' March 30 letter contained the statement that Crook would benefit from at least a temporary reduction in direct contact with the County employees with whom she has had such well- publicized conflicts, which included "the elected official against whom Crook filed an EEOC complaint, and a County personnel committee member who is strongly aligned with that elected official." Crook also cites Berg's testimony that Berg had had discussions with both Melanie Role, who had become Chairman of the Personnel Committee, and Solverson regarding her initial request for a Family Medical Leave, and that Berg had met with them when she made her request for an extension of her Family Medical Leave. Further, Crook argues that by virtue of the job description for the position of Personnel Coordinator, Berg should have investigated Crook's complaints at the time she took office as Personnel Coordinator or shortly thereafter. Crook argues that it is in the job description of the Personnel Coordinator position to "conduct hearings between department heads and employees on policy violations; investigate complaints (Harassment, EEOC, ADA, WC, etc.)", to "investigate personnel problems and take appropriate action", and to "monitor employees on Worker's Comp."

However, none of Crook's arguments refute Berg's testimony that she was unaware that Crook had filed a complaint of discrimination against the respondent.

Crook mailed a letter to Melanie Role on April 28, 2000, stating that she was taking a leave under the Family and Medical Leave Act commencing on May 1. Crook's April 28, 2000 letter included a letter dated April 24, 2000, from Clinical Psychologist, V. Ellsworth Lewis, Ph.D., explaining the reasons Crook was taking a family medical leave. Dr. Lewis' letter stated in part as follows:

I have been treating Kathleen since August 30, 1999, for depressive and somatic problems associated with occupational stressors. The recent changes in composition of the Personnel Committee, due to the well-publicized and ongoing conflicts between Ms. Crook and the new Chair of that committee, create conditions under which I expect her depressive symptoms to worsen. I do recommend that she take leave of absence for a period of up to 12 weeks.

Berg testified that upon hire, in one of her first discussions with Role she was given some information from Crook "requesting her Family/Medical Leave and indicating her, like, the absence." Berg testified that the letter she had seen from Dr. Lewis was the one that Crook attached to her Family/Medical Leave request. It was Dr. Lewis' April 24 letter that accompanied Crook's April 28 letter to Role. Dr. Lewis' March 30 correspondence had not requested a Family/Medical Leave for Crook. Crook never established that Berg had ever seen Dr. Lewis' March 30 letter.

Berg testified that she met with Role and Solverson regarding Crook's initial request for Family/Medical Leave because the paperwork for it had been sent to Role, and Role brought it to her. Berg testified she did not recall why Solverson was involved other than that she was probably assisting Role with some of the functions of the Personnel Office prior to her taking office. Berg also testified that she had conversations with Role because she was the chairperson of the personnel committee, under which she worked. Berg further testified that she met with Solverson once probably within her first week "just to get acclimated, get keys, shown-around-the-facilities type thing."

Berg testified that she met with Role and Solverson in July 2000 when Crook requested an extension of her leave because they were familiar with the organization and how the respondent processed claims. Berg testified that she did not recall if it was Role and Solverson, or she, who decided to consult legal counsel regarding Crook's request for an extension, but that whenever the respondent is taking any type of steps with employees, it usually consults with legal counsel to make sure they're in compliance and doing everything properly.

Crook never established that there had been any discussion between Berg and Role or Solverson regarding her having filed complaints of discrimination against the respondent.

Also, while Berg's job description may have contained the duties cited by Crook, she failed to establish that Berg had actually performed such job duties in connection with her situation.

Next, Crook argues that the respondent engaged in discriminatory conduct toward her because the requirements for the Personnel Coordinator's position indicated that a Bachelor's Degree was required, but Berg, the individual hired did not have any degree and was not a college graduate. Crook argues that the County violated their own hiring policy and did not follow the usual and customary procedures of hiring. Crook argues that in the past, if a job was advertised and the applicant or applicants did not meet the requirements of the position, the position would be re-advertised until a suitable applicant could be found who met all of the educational requirements and qualifications of the position description.

As the respondent points out in its brief, however, Crook never made this assertion in her complaint, this claim was never investigated, nor was it a subject of the hearing, so there was no evidence adduced from any member of the Personnel Committee, who made the hiring decision, as to why that occurred. The County had offered the position to another candidate prior to Berg, who turned the job down. It may have been that the initial offeree had a four-year degree, but there were no other qualified candidates with a four-year degree. Moreover, there was never any evidence adduced to support Crook's assertion that the County's past practice was to re-advertise until a suitable candidate could be found. Furthermore, given the pressure that Crook was applying to the Committee to hire a Personnel Coordinator, one can safely assume that she would have protested any attempt by the Committee to re-advertise for the position.

Next, Crook argues that the respondent engaged in discriminatory conduct toward her by failing to make reasonable accommodation for her following notification by her doctor of her "permanent restrictions." Crook admitted at the hearing that the permanent restrictions she was referring to here were Dr. Lewis' restrictions that she be returned to a position "safely removed from the political and interpersonal problems" involving Solverson and Role. While making this admission, Crook nevertheless argues on appeal that "Dr. Lewis did not opine that Crook would not be able to return to her position in the Personnel Department, but to a position that was insulated from Sharon Solverson. (Emphasis in original.) Crook argues that the respondent made no attempts to accommodate her restrictions or to correct the situation in the Personnel Department and went forward and filled her vacant position.

Crook's arguments fail. Dr. Lewis' April 24, 2000 letter explained that it was necessary that Crook take a Family/Medical Leave because "The recent changes in composition of the Personnel Committee, due to the well-publicized and ongoing conflicts between Ms. Crook and the new Chair of that committee, create conditions under which I expect her depressive symptoms to worsen." Subsequently, in Dr. Lewis' June 26 letter requesting an extension of Crook's medical leave, he opined that "Kathy would be able to return to work for the county in a position that is safely removed from the political and interpersonal problems of which I presume the reader of this memorandum is aware." (Emphasis added.) Given that the Personnel Department staff would have had some contact with Solverson, and frequent contact with Role, the Chair of the Personnel Committee at the time, no other reasonable interpretation could have been given to Dr. Lewis' opinion but that she could not return to her position in the Personnel Department.

Furthermore, the record fails to reveal what could have been done to accommodate Crook's restrictions or to correct the situation in the Personnel Department so that she could have returned to the Personnel office. Berg testified that she did not know what efforts could have been undertaken to isolate Crook's position from Solverson and Role completely. Further, Berg testified that having been on the staff for such a short period of time, she had not been able to develop how the conflicts could have been corrected. Moreover, Solverson and Role were public officials that had been elected into office. Also, Crook has not identified any possible accommodation that could have been made so that she could have returned to her position. Since Crook could not be returned to the Personnel office and her position needed to be filled, however, upon the expiration of Crook's Family/Medical Leave, the respondent converted her leave to an unpaid leave of absence and advised her she could apply for any other available position she felt qualified to perform. Crook never applied for nor made any inquiries about any jobs the County may have had available that would have been within her doctor's restrictions.

Crook apparently further argues that she never applied for any position with the respondent because it was her understanding that it was up to the respondent to advise her of any job that fell within her restrictions since she had a pending Worker's Compensation claim. However, Crook's explanation of why she failed to apply for a job with the respondent fails to point to any discriminatory conduct engaged in on the part of the respondent in retaliation for her filing of a complaint of discrimination with the ERD.

Crook makes no argument in her petition that the ALJ erred in finding that the delay in canceling her health insurance was the result of oversight and not an act of retaliation against her for filing complaints with the ERD. The evidence fully supports the ALJ's determination. The July 17, 2000 correspondence the respondent sent to Crook was confusing, but did provide notice that she had 60 days after losing coverage to notify the respondent that she wanted continuation coverage. Also, included as the last page of that correspondence was a form for her to complete stating whether she did or did not wish continuation coverage. Crook did not complete and return this form to notify the respondent of her decision. Through an oversight, due to the absence of any notice from Crook, together with the fact that the respondent was enrolling its employees in its new insurance program, the respondent missed the fact that it should have notified its insurance carrier to terminate her coverage. As a result, the respondent's insurance carrier continued to consider her covered.

Finally, Crook has not pursued her complaint allegation that the respondent terminated her health insurance while her claim for Worker's Compensation was pending.

cc: 
Attorney William P. Skemp
Attorney Lisa M. Bergersen

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