SHARON COMYNE, Complainant

NEW LIVING CONCEPTS LTD, Respondent A

COBBLESTONE TERRACE, Respondent B

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 conclusions in that decision as its own, except that it makes the following modifications:

Reference to the "Wisconsin Fair Employment Act, secs. 111.31-.395, Wis. Stats." is deleted from the first sentence of the first paragraph of the decision.

The FINDINGS OF FACT section is deleted and the following substituted for purposes of clarification:

1. Sharon Comyne (Comyne), the complainant, began working for respondent A, New Living Concepts, in February of 2002 as an assistant manager of Bay Point Villa (BPA), a community-based residential facility which primarily served dementia and Alzheimer's patients. In that position, Comyne was supervised by the facility manager, who was supervised by Robin Mosleth, nurse administrator of BPV, Kletzsch Park House, and Kletzsch Park Residence. Comyne was promoted to the position of manager of Kletzsch Park House in June of 2002 and to the position of manager of BPV in June of 2003.

2. Comyne was issued a verbal warning by Mosleth in April of 2003 for assigning staff members, who had not successfully completed required training, to perform patient care responsibilities.

3. Some time in June or July of 2003, Comyne complained to Mosleth that male staff member Alexander was engaging in inappropriate conduct with a female resident. Mosleth conducted an informal investigation and concluded that, although the hand holding and preferential treatment could create an unfavorable appearance, it did not constitute abuse. Comyne was not satisfied with Mosleth's response.

4. In August of 2003, Mosleth issued a series of warnings to Comyne for alleged improper processing of new medication orders, insufficient staffing, assigning patient care responsibilities to staff members who had not successfully completed required training, not attempting to resolve staff concerns before referring them to Mosleth, not attempting to resolve concerns she had with Mosleth before discussing them with facility owners, and failing to assign staff to coordinate required patient activities.

5. Effective August 29, 2003, BPV was acquired by respondent B, Cobblestone Terrace. The owner and president of Cobblestone Terrace is Susan Pledl.

6. Upon Cobblestone Terrace's acquisition of BPV, facility staff members were notified that they would be retained for at least a three-month probationary period.

7. At or around the date of the acquisition, Mosleth advised Pledl that she had concerns about Comyne's work performance. Pledl met with Mosleth and Comyne on September 8, 2003, to discuss such concerns. This meeting concluded at 5:30 p.m.

8. Present at the September 8 meeting were Comyne, Mosleth, Pledl, and Janine Menzer, director of operations for Cobblestone Terrace.

9. At the September 8 meeting, Comyne stated that, prior to August 29, 2003, she had received reports from staff members that two male residents had been observed engaging in oral sex, and that male staff member Alexander had engaged in inappropriate conduct with a female resident. Mosleth stated that she had previously been unaware of the oral sex allegation, but had investigated and properly handled the Alexander allegation.

10. The morning of September 9, 2003, Pledl contacted Alfred Johnson and Marilyn Wendelberg of the Bureau of Quality Assurance (BQA) of the Wisconsin Department of Health and Family Services, to ask how the two allegations mentioned by Comyne at the September 8 meeting should be handled. Pledl was advised by Wendelberg that the oral sex allegation was required to be investigated. Pledl decided to also investigate the Alexander allegation since Alexander was still engaged in the health care industry.

11. The afternoon of September 9, 2003, Pledl met with Mosleth and directed her to conduct an investigation of both allegations. At no time did Pledl direct Comyne to advise BPV staff not to discuss these allegations with Molseth. Pledl did advise Comyne to direct the staff not to discuss these allegations with or in front of residents or visitors.

12. Some time on September 9, 2003, Comyne sent a fax to Johnson of BQA accusing Mosleth of discrimination, but not mentioning any allegations of patient abuse. Pledl first became aware of this communication after September 11, 2003.

13. Mosleth requested that BPV staff members who had any knowledge of the incidents of alleged abuse she was investigating prepare incident reports, However, she learned on September 10, 2003, that Comyne had directed BPV staff not to prepare such reports or to answer Mosleth's questions about the incidents. Mosleth reported this to Pledl on September 11, 2003.

14. Pledl met with BPV staff on September 11, 2003. Mosleth was not present for this meeting, and Comyne was present only at the end. BPV staff reported to Pledl that they were frustrated by conflicting directives they received from Mosleth and Comyne, and were critical of Comyne's role in creating this conflict. Pledl told BPV staff during this meeting that she would address the problem and, in the meantime, they should prepare the incident reports requested by Mosleth.

15. Pledl decided, based on concerns expressed by BPV staff during the September 11 meeting; Comyne's efforts to thwart Mosleth's investigation of the incidents of alleged abuse; and her impressions of Comyne's management skills, commitment, and leadership, to terminate Comyne, and communicated this to Comyne later on September 11. Pledl had concerns about Mosleth's management skills and leadership as well and did not consult with her or consider her prior discipline of Comyne before making the decision to terminate Comyne. Mosleth left her employment with Cobblestone Terrace a few days later.

16. After her termination, Comyne sent a fax to Johnson at BQA alleging patient abuse in regard to the oral sex and Alexander allegations.

17. Pledl's decision to terminate Comyne's employment was based on performance concerns, not the reports of alleged patient abuse Comyne made during the meeting of September 8, 2003.

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

Dated and mailed December 16, 2005
comynsh . rmd : 115 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

146.997(2) Reporting protected.

(a) Any employee of a health care facility . . .who is aware of any information...that would lead a reasonable person to believe any of the following may report that information to any agency, as defined in s. 111.32 (6) (a), of the state; ...to any officer or director of the health care facility or health care provider; or to any employee of the health care facility or health care provider who is in a supervisory capacity or in a position to take corrective action:

1. That the health care facility or health care provider or any employee of the health care facility or health care provider has violated any state law or rule or federal law or regulation.

2. That there exists any situation in which the quality of any health care service provided by the health care facility or health care provider or by any employee of the health care facility or health care provider violates any standard established by any state law or rule or federal law or regulation or any clinical or ethical standard established by a professionally recognized accrediting or standard-setting body and poses a potential risk to public health or safety . . .

146.997(3) Disciplinary action prohibited.

(a) No health care facility or health care provider and no employee of a health care facility or health care provider may take disciplinary action against, or threaten to take disciplinary action against, any person because the person reported in good faith any information under sub. (2) (a), . . .

146.997(4) Enforcement.

(a) Any employee of a health care facility or health care provider who is subjected to disciplinary action, or who is threatened with disciplinary action, in violation of sub. (3) may file a complaint with the department [of workforce development] under s. 106.54 (6). If the department finds that a violation of sub. (3) has been committed, the department may take such action under s. 111.39 as will effectuate the purpose of this section.

In order to qualify for protection under this statutory scheme, Comyne would have to show that she was terminated because she reported in good faith the oral sex and Alexander allegations.

The record, however, supports a conclusion that Comyne was terminated not because she reported these allegations during the September 8 meeting, but instead because the facility's new owner had formed the impression after observing her over a period of almost two weeks that Comyne lacked leadership and management skills and commitment to her responsibilities as a facility manager.

Comyne argues that Mosleth's frequent, unmerited discipline of her after she took issue with Mosleth's response to the Alexander allegation demonstrates that her termination was improperly motivated. However, the record shows that, since she also had concerns with Mosleth's abilities and motives, Pledl did not consult Mosleth or consider her discipline of Comyne in reaching the termination decision at issue here.

The close proximity in time between Comyne's mention of the incidents of alleged abuse at the September 8 meeting and her termination could create the impression that the two were causally linked. However, given the fact that Pledl was a new owner and using the first weeks of her tenure to scrutinize and finalize her management team, and considering the impressions Pledl formed through her observation of Comyne's performance and the feedback she received about Comyne from BPV staff, militates against the existence of such a linkage.

Comyne also points to her communication with Johnson of BQA immediately before her termination in support of her claim. However, Pledl, who alone made the termination decision, had no reason to be aware of this communication before the decision was made.

It should also be noted that Pledl had no motive to terminate Pledl because of her report of the abuse allegations at the September 8 meeting. Pledl did not own BPV at the time the incidents of alleged abuse occurred and, as a result, would not be accountable for them. Moreover, Pledl had no reason to fear that Comyne would pursue her allegations of abuse with BQA, the state licensing authority, because Pledl, immediately after the September 8 meeting, reported them herself.

Comyne has failed to sustain her burden to prove that she was terminated because she reported incidents of alleged patient abuse at the September 8 meeting.

It should finally be noted that, in her appeal to the commission, Comyne relies upon many facts not of record. The commission may consider, and has considered, only the evidence offered and received at hearing in reaching its decision here.

cc:
Attorney Sandra G. Radtke
Attorney John E. Raftery

Appealed to Circuit Court.  Affirmed October 3, 2006.

[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]

uploaded 2006/01/03