DEBRA SPEARMAN, Complainant
BURLEIGH DENTAL S C, 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 September 30, 2004
spearde . rsd : 164 : 9
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
Robert Glaser, Commissioner
In her petition for commission review the complainant argues that the respondent's explanation that it fired her for attitude problems, inefficiency concerns, (1) and patient concerns are all pretexts for discrimination. The complainant states that she worked eight years without incident, and that the timing of the discharge was "acute" in that it followed a December 2000 "interrogation" into what she planned to do regarding her discrimination complaint, and occurred only a few months after the respondent received notice she was appealing. The complainant contends that the respondent precipitously seized upon an innocuous after-work incident in order to terminate her for continuing to pursue charges before the Equal Rights Division (hereinafter "ERD"). She states that the innocuous Friday night conversation was substantially true and posed no threat to anyone. The complainant maintains that it is more threatening to know that employees are coming into the office suffering from an alcohol binge, and that thieves are allowed to work among the personal belongings of patients and employees. She asserts that such persons were trusted by the respondent while the complainant was, incredibly, seen as a potential threat. The complainant's arguments fail, for the reasons set forth below.
First, nothing about the timing of the complainant's discharge gives rise to suspicions that it was motivated by retaliatory impulses. The complainant filed her complaint in August of 2000, but was not discharged until March of 2001, approximately eight months later. If, in fact, the respondent wanted to get rid of the complainant because of her complaint, it had ample opportunity to do so much earlier than it did. For instance, in October of 2000 the complainant tendered her resignation, then subsequently asked to rescind it. The fact that the respondent permitted the complainant to rescind her resignation strongly suggests that it was not looking for an excuse or pretext to terminate her employment. In addition, the evidence demonstrates that, prior to rescinding her resignation, the complainant notified the respondent that she had borrowed a few dollars from petty cash without paying it back, had taken postage stamps without paying for them, had taken a long break without punching out, and had done some "snooping" in the office to find medical information which she did not trust the respondent to provide her. Although the respondent was aware the complainant had filed a discrimination complaint against it, it did not take any disciplinary action against the complainant. Not only did the respondent permit the complainant to return to work, but shortly thereafter it gave her a salary increase. The respondent clearly had no intention of terminating the employment relationship based on the discrimination complaint, and the decision to discharge the complainant was made only when her attitude became so negative that the respondent believed it could no longer reasonably be tolerated.
The complainant's argument that the timing of her discharge was suspect rests primarily on her contentions that, during the December 2000 meeting with the respondent, Drs. Hebl and Donohoo were angry with her for having filed a complaint and interrogated her about whether she intended to appeal. The commission does not find these arguments persuasive, nor does it believe that the picture the complainant has painted of the December meeting is an accurate one. It is apparent that the reason for the meeting, which occurred after the complainant had resigned, then rescinded her resignation, and after the respondent received the no probable cause determination from the ERD, was a genuine desire to clear the air and improve the atmosphere in the office. Although the complainant may have perceived that her employers were angry with her, they did not tell her this was the case, nor does the evidence suggest that they raised their voices or otherwise addressed the complainant in an angry manner. Further, notwithstanding the complainant's characterization of the meeting as an "interrogation" about her intentions, the respondent's witnesses credibly denied having asked the complainant whether she intended to file an appeal. Indeed, Dr. Donohoo indicated that he was not aware at the time that an appellate procedure was available, and believed the matter had been finally resolved. While the complainant was clearly upset by the meeting, nothing about the meeting leads the commission to conclude that the respondent was motivated to discharge the complainant in retaliation for having filed a complaint, and it is satisfied that the complainant's employment would have continued, but for her poor attitude which culminated in the March 2 incident.
Turning to that incident, the commission cannot agree with the complainant's characterization of the telephone call as an innocuous after-work incident which was substantially true and posed no threat to anyone. The credible evidence reveals that the complainant telephoned a new employee at her home to tell her that her job was in jeopardy because the respondent did not like her, that she should not talk to the complainant at work, and that she should not trust her employers, whom the complainant stated had installed cameras in the workplace, or her co-workers, one of whom the complainant contended went through workers' purses and had attempted to poison the complainant. This hardly qualifies as an "innocuous" telephone call, nor does it appear that any of the complainant's allegations were true. The individual receiving the telephone call, Sarah Rajkovic, found it disturbing, and reported her concerns to the respondent, then subsequently prepared a written statement regarding her recollection of the call. It was only after talking to Ms. Rajkovic, obtaining her statement, and interviewing the complainant, that the decision was made to terminate the complainant's employment.
In her petition the complainant contends that Ms. Rajkovic "denounced" her letter at the hearing and admitted the complainant was no problem at Burleigh Dental. Again, this argument lacks merit. Although at the hearing Ms. Rajkovic testified, in contrast with a sentence in her written statement that the complainant was "the root of the problem" at the clinic, that the complainant was not a problem, she neither "denounced" nor recanted the substance of the allegations in her written statement. Further, Ms. Rajkovic testified that the complainant had refused to communicate with her or answer her questions at the workplace, even before placing the call in which she advised her that her job was in jeopardy and that she should not talk to the complainant at work. Whether or not Ms. Rajkovic chose to characterize the complainant's conduct as a "problem" at the hearing is of little importance where her specific testimony about the complainant's actions makes it plain that it was. Moreover, even if the commission were to conclude that Ms. Rajkovic lacked credibility and that the assertions in her written statement could not be relied upon-- and the commission wishes to emphasize that it does not find this to be the case-- the respondent's decision to discharge the complainant based upon Ms. Rajkovic's statement cannot be considered unlawful where the respondent believed it to be true.
Finally, addressing the complainant's attempts to compare her own misconduct with that of co-workers who were not discharged, the commission does not find such comparisons to be helpful. The fact that the respondent did not discharge an employee who reported to work with a hangover, or an employee who admitted to having stolen cash from one of the dentist's wallets on one occasion, but whom the respondent was satisfied would not repeat that conduct, does not cast doubt on the respondent's explanation for making the decision it did in this instance. The evidence established that the complainant was discharged because the respondent believed, justifiably, that she had a poor attitude which culminated in a serious act of misconduct. The respondent evidently viewed the complainant's actions as being more serious than those of the co-workers to whom she now compares herself, and the commission sees no reason to doubt the respondent's business judgment in this regard or to believe that it would have been willing to continue the complainant's employment if not for her discrimination complaint. Because the commission does not find that the respondent violated the statute in the manner alleged, the dismissal of the complaint is affirmed.
NOTE: The parties' briefs address the standard of review which the commission should apply in this case. The commission's role is to act as an original and ultimate fact finder. The commission therefore conducts a de novo review. See Wis. Stat. § 111.39(5)(b); Clemons v. Opportunities Industrialization Center of Greater Milwaukee (LIRC, Feb. 14, 2003); Forman v. Cardinal Stritch College (LIRC, June 8, 1992).
cc:
Attorney Rocky L. Coe
Attorney W. Patrick Sullivan
Appealed to Circuit Court. Affirmed April 5, 2005. Appealed to the Court of Appeals. Affirmed in unpublished per curiam decision, August 1, 2006.
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