EATHER M BRUNEAU (JOHNSON), Complainant
OLAS HOUSE INC, 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 conclusions in that decision as its own, except that it makes the following modifications:
1. The last sentence in FINDING OF FACT number 3 is deleted.
2. CONCLUSION OF LAW number 2 is deleted.
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed October 9, 2008
bruneea . rmd : 125 : 9
James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
Eather Bruneau worked about seven or eight months as a caregiver for the respondent, a community-based residential facility. Wilma Hunt and her daughter, Angela Hunt, are the owners of the residential facility. On May 14, 2006, the respondent terminated Bruneau's employment.
Bruneau alleges that the respondent terminated her employment for reporting to the respondent about the quality of resident care at the respondent's facility.
At issue is whether the respondent terminated Bruneau's employment in violation of the Health Care Worker Protection Act, Wis. Stat. § 146.997.
The Health Care Worker Protection Act (HCWPA) provides, in relevant part, that:
Any employee of a health care facility (1) . . . who is aware of any information...that would lead a reasonable person to believe...
1. That the health care facility...or any employee of the health care facility...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 by any employee of the health care facility...violates any standard established by any state law or rule or federal regulation...and poses a potential risk to public health or safety
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 to any employee of the health care facility...who is in a supervisory capacity or in a position to take corrective action.
Wis. Stat. § 146.997(2)(a).
Wis. Stat. § 146.997(3)(a) provides, in relevant part, that "No health care facility...and no employee of a health care facility...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)...or because the health care facility...or employee believes that the person reported in good faith any information under sub. (2)(a)..."
Wis. Stat. § 146.997(4)(a) provides, in relevant part, as follows: "Any employee of a health care facility...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 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."
Bruneau testified that near the end of March 2006 she called and reported to Wilma Hunt that urine and feces were on the second floor bathroom, that on April 8 she called Wilma Hunt and reported observing a co-worker (Debra) yelling at a blind resident about not wanting to give the resident a bath, and that in mid-April she called Wilma Hunt and reported the co-worker sitting in her car while the residents were alone in the facility.
Wilma Hunt did not remember receiving a call from Bruneau about finding urine and feces on the second floor bathroom. However, Wilma Hunt readily admitted that the urine and feces incident could have happened because the respondent's rules require caregivers to check the house every two hours and the incident could have occurred shortly after a check of the house. Wilma Hunt remembered the April 8 call about the co-worker yelling at a resident about not giving the resident a bath but testified that the co-worker was not responsible for giving baths, as bathing residents is a second-shift function unless a resident urinates on him or herself or "has an accident." Angela Hunt testified that the resident involved here was not only legally blind but also legally deaf. With respect to Bruneau's third call, Wilma Hunt testified that she questioned the co-worker about Bruneau's claim, that the co-worker stated she did not have a car or drive, and that she (Wilma) believed this to be true because she remembered seeing the co-worker's sister dropping her off at work.
Wilma Hunt testified that employees were calling her all the time and complaining that "so-and-so didn't do this or didn't do that" and that she told them all to save it for a staff meeting and they would talk about everything at the staff meeting.
Both parties agree that the staff meeting was held on April 27, but they dispute what occurred at that meeting.
Bruneau testified that she raised resident care issues at the April 27, 2006 staff meeting. Bruneau testified that when Wilma Hunt asked if anyone had any problems they wanted to discuss she stated that she had observed urine all over the floor upstairs and that on another date she saw a co-worker (Debra) tell a resident she would not give the resident a shower. Bruneau testified that Debra "jumped out of her seat and started swearing at me" and that she responded stating that she was not going to argue with Debra, she was only reporting what she had observed. Bruneau admits she might have raised her voice in response to what was being said to her by the co-worker, but denies swearing at the meeting. Bruneau testified that Angela Hunt stated that they were not going to tolerate what was going on and asked her to leave. Bruneau testified that she left the facility feeling she "was being brushed off."
Bruneau testified that a week after the staff meeting her work schedule was reduced from four days a week to one day. Bruneau testified that she spoke to Wilma Hunt about her reduced schedule and that Wilma Hunt stated that she had someone new coming in for her to train, after which she would be put back on her regular schedule. Bruneau testified that the following week she was not on the schedule at all and that when she called and spoke to Angela Hunt, she was told that she was being fired for the argument she had with Debra at the staff meeting.
Wilma Hunt testified that she had a list of things to go over at the staff meeting that needed to be addressed that weren't being done in the facility; that the meeting was going along fine and then all of a sudden Bruneau accused Debra of not baking a cake. Wilma Hunt testified that Debra responded that that was not her job; that not only did both employees raise their voices they went back and forth calling each other names. Wilma Hunt testified that she thought Debra and Bruneau were going to fight; that the meeting got so out of hand that she thought she was going to have to call the police. Wilma Hunt testified that Debra and Bruneau called each other everything but "the child of God"; that they "swore like sailors", calling each other names such as "bitches" and "whores"; that Bruneau called Debra "black"; that Debra talked about Bruneau's hair, and that they "said things about their mothers." Wilma testified that she kept telling them to stop; that they could not carry on like that in a meeting. Wilma Hunt testified that Bruneau did not raise the issue of Debra being in a car outside or any issues related to patient care. Wilma Hunt testified that both Bruneau and Debra were terminated for their behavior at the staff meeting alone, but it took a while because the respondent did not have anyone to replace them. Wilma Hunt testified that normally she or Angela would have covered those shifts but that she (Wilma) was too ill to work and that Angela was taking care of her so Angela could not work the shifts either. Wilma Hunt testified that she had been ill from September 2005 until March 2006 and had spent time recuperating in a nursing home.
Angela Hunt testified that the course of events at the April 27 staff meeting were as described by Wilma Hunt; that right away Bruneau started talking about some cake that Debra didn't bake and that Debra responded saying something about her not baking. Angela testified that it just got out of hand after that point. Angela Hunt testified that like Wilma Hunt stated, they called each other everything but "the child of God": "bitches", "nappy-headed ho's"; and that Bruneau "talked about Debra" and Debra "talked about her." Angela Hunt testified that she considered calling 911. She testified that she put Debra in the kitchen; that the other employees got up from the table and that Bruneau left. Angela Hunt testified that the meeting was over at that point and could not have lasted more than 30 minutes, although slated for an hour.
Angela Hunt testified that Bruneau was not normally scheduled to work four days a week; that she believed Bruneau worked her normal three days the first week after the April 27 staff meeting and that Bruneau was still scheduled for her three days the following week. Angela Hunt testified that the decision to discharge was made immediately after the April 27th meeting; that she and her mother decided that they could not keep either Bruneau or Debra and needed to find someone else to replace both of them. Angela Hunt testified that two weeks later on Mother's Day (May 14, 2006), she told Bruneau that the respondent could not keep her on the schedule after the staff meeting incident and that she told Debra that her employment was terminated on the same day. Angela Hunt testified that she had left voice mail messages for both employees to call her; that Debra called back first and was told about her termination first. Further, with respect to Bruneau's claim of calling with questions about her schedule, Angela testified that she did not recall that at all.
The commission agrees with the ALJ's determination that Bruneau has failed to establish by a fair preponderance of the evidence that the respondent violated Wis. Stat. § 146.997 when it terminated her employment. However, it appears that the ALJ interprets the statute too narrowly. The ALJ states in his memorandum opinion that because Bruneau's complaints did not reference any rule, regulation or standard and she was unable to identify any at the hearing, she failed to establish that the matters she complained of were violations of any rule, regulation or standard required by § 146.997(2) (a) 1. Similarly, in finding of fact number 3 the ALJ makes a finding that "Bruneau never brought to either [Hunts'] attention that there was any violation of a statute, rule or standard in the care of residents at Olas House", and in conclusion of law number 2 the ALJ makes a conclusion that "The situations reported by Ms. Bruneau to Wilma Hunt were not protected by sec. 146.997(2)(a), Stats." Neither the HCWPA nor the pleading requirements of ERD require that a complainant specifically identify which state law or rule the complainant believes has been violated in order to obtain HCWPA protection. Matson v. Aurora Health Care (LIRC, 03/21/08); Lobacz v. State of Wis. Dept. of Corrections (LIRC, 11/03/05).
The question presented under the statute is whether Bruneau reported what she reasonably believed was either a violation of a state law or rule or federal law or regulation by an employee of the health care facility, or that there existed a situation in which the quality of health care service provided by the health care facility or an employee of the health care facility violated a standard established by any state law or rule or federal regulation and posed a potential risk to public health or safety.
Bruneau testified that while she could not quote a specific statute, she did know that state law protects against the abuse of residents and that residents in assisted living facilities have rights regarding how they must be treated by staff. Indeed, state statute provides, for example, that residents in a community-based residential facility shall "Be treated with courtesy, respect and full recognition of the resident's dignity and individuality, by all employees of the facility and licensed, certified or registered providers of health care and pharmacists with whom the resident comes in contact." Wis. Stat. § 50.09(1)(e). Also, Wis. Stat. § 50.09(1)(k) provides that residents shall "Be free from mental and physical abuse..." and § 50.09(1)(L) provides that residents shall "Receive adequate and appropriate care within the capacity of the facility."
Bruneau contends that she raised resident care issues at the April 27, 2006 staff meeting and that she did not curse or swear at the meeting. Further, in support of her claim that the respondent terminated her employment in violation of § 146.997, Bruneau asserts that the respondent waited two weeks before discharging her and that the respondent did not terminate Debra's employment until she filed a complaint against the respondent with the ERD. However, the Hunts deny that Bruneau raised any resident care issues at the staff meeting and assert that what occurred was that Bruneau and Debra "swore like sailors" after a disagreement about whether Debra was supposed to bake a cake. Further, the respondent testified that both Bruneau and Debra were terminated on the same day, May 14, 2006, and that their termination took a while because the respondent needed to find replacements for them since the respondent had no one to cover their shifts.
The ALJ did not find Bruneau to be a credible witness. Further, the ALJ in essence determined that Bruneau had not established that the respondent believed that Bruneau was reporting information protected under § 146.997 at the staff meeting or that the respondent's articulated reason for terminating her employment was a pretext for retaliation against her for engaging in actions protected under Wis. Stat. § 146.997. The commission finds no compelling reason to question the ALJ's assessment of credibility and agrees that Bruneau failed to establish by a fair preponderance of the evidence that the respondent violated § 146.997 when it terminated her employment. Bruneau failed to show that the respondent did not terminate Debra's employment on the same day the respondent terminated Bruneau's employment. Moreover, that being the case, and the fact that Debra, who is not alleged to have engaged in any activity protected under Wis. Stat. § 146.997, was terminated for the same alleged reason as Bruneau, undercuts Bruneau's claim that the respondent terminated her employment because she had engaged in any activity protected under Wis. Stat. § 146.997.
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(1)( Back ) The definition of a health care facility includes a community-based residential facility. Wis. Stat. § 146.997(1)(c).