STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

INGEBURG DIETERICH, Complainant

LINDENGROVE, INC., Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 200503499


An administrative law judge for the Department of Workforce Development issued a decision in the above-captioned matter on November 30, 2007, dismissing the complainant's complaint. The complainant has filed a timely petition for review of the administrative law judge's decision.

Based upon a review of the applicable law, records and evidence in this case, and having considered the arguments presented in the parties' briefs, the Commission hereby issues the following:

ORDER

The decision of the administrative law judge is set aside, and this matter is remanded to the Division for further proceedings, consistent with the attached Memorandum Opinion, to be held before a different administrative law judge.

Dated and mailed December 29, 2008
dietric . rpr : 110 : 

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

This case involves an allegation that the employer, LindenGrove ("LG"), a skilled nursing facility, violated the Health Care Workers Protection Act when it discharged its employee, complainant Ingeburg Dieterich. The Initial Determination found probable cause; the issue is thus presented on the merits.

At the hearing, Dieterich presented her case through her own testimony and that of two other witnesses, both former employees of LG, one a nursing assistant and the other a registered nurse and nursing supervisor. In addition, a number of documents, some offered by Dieterich and some by LG, were received as exhibits. However, no representatives of the employer's management were called as witnesses during Dieterich's case, and thus as of the point at which she rested her case, there had been no testimony from any representative of the employer as to their version of the facts or its assertions about the material issues.

After Dieterich rested, LG's counsel moved to dismiss, arguing that she had failed to make out a prima facie case because there was no evidence of the required protected activity of making a report. In response, Dieterich's counsel argued that there was evidence that Dieterich had made an "internal" report sufficient to constitute protected activity under the HCWPA, and also that there was evidence that the employer assumed that Dieterich had or was going to make an "external" report (to "the State").

The ALJ granted the motion. His ruling, in its entirety, was as follows:

All right. Let's see. Considering all the documents and all of the evidence offered, the Administrative Law Judge will grant the Respondent's motion to dismiss believing that the Complainant has failed to meet the burden of proof establishing a prima facie case and will issue a written decision to that effect.

More than a year later, the ALJ issued his written decision. The rationale stated in his Memorandum Opinion said nothing about complainant having failed to establish a prima facie case. Instead, he wrote, "[t]he complainant failed to establish that the reasons outlined by the Respondent as the basis for her termination were a pretext for unlawful and retaliatory actions against her" and "[t]he evidence in the record shows that the reasons for the Complainant's termination were legitimate and non-discriminatory."
 

Facts -- LG is a nursing home. Dieterich worked there, as a licensed practical nurse, from 2000 until her discharge on April 13, 2005. Dieterich's witnesses at hearing were Jodi Bloom, who worked at LG as a registered nurse from 2004 to 2006, and Christine Fifer, who worked at LG as a certified nursing assistant from 1999 until April 9, 2005. Other persons involved in the events giving rise to this case include Marge Weiler, the Assistant Director of Nursing, and Patti Zerwinski, the Director of Nursing. Another person referred to in the record was Patricia Boyle, a registered nurse, who was the manager of the unit in which Dieterich was working.

Dieterich was notified that she was being discharged in a meeting with Weiler and Zerwinski on April 13, 2005. At that meeting, she was provided with copies of two "Disciplinary Action Report" documents. Because neither Weiler nor Zerwinski testified, and because Dieterich did not testify as to Weiler or Zerwinski telling her anything about the reasons for the discharge, these two documents constitute the only evidence in the record as to what LH contends its reasons were for the discharge.

The Disciplinary Action Reports given to Dieterich at the time of her discharge refer to certain forms required to be used to document unusual occurrences regarding a patient. As a nursing home, LG was closely regulated by the State of Wisconsin. One legal requirement it operated under was the obligation to document and report unusual occurrences such as injuries to residents. LG's practice with regard to this involved use of two forms, which were stapled together and completed together, with the two sheets then being separated after they were completed. The first page was entitled "Quality Assurance"/"Investigative Process Data Collection of Unusual Occurrence" (this will be referred to as the "Quality Assurance" report). The second page was entitled "QA Data Verification"/"Review - Investigative Process" (this will be referred to as the "Review - Investigative Process" report). The practice was that the first page (the "Quality Assurance" report) was sent by LG to the State, and the second page (the "Review - Investigative Process" report) was retained at LG.

The Disciplinary Action Reports given to Dieterich at the time of her discharge refer to several alleged "violations" occurring in March, 2005.

One had to do with the manner in which Dieterich completed an "Investigation Report" form.  (1)   Dieterich completed this form on March 24, concerning an incident which had occurred on March 17, in which a medical technician, Denise, had made certain statements in the presence of Dieterich and Bloom. Dieterich subsequently wrote up the "Investigation Report" form concerning this at the request of Zerwinski, to whom she gave the form. Zerwinski subsequently called Dieterich and asked her to re-write the statement, leaving out certain parts of it which Zerwinski objected to as being Dieterich's "opinions". Dieterich refused. Zerwinski made a note about this on the original investigation report; she then prepared another report to replace the one Dieterich had submitted.

Another incident referred to in the Disciplinary Action Reports given to Dieterich at the time of her discharge had its origins on March 23, when a certified nursing assistant ("CNA") ran over a patient's toe with a wheelchair. On that same day, Dieterich, who was present at the time, prepared reports about this incident, on the required "Quality Assurance" and "Review - Investigative Process" forms. These forms were then provided to LG. Weiler subsequently contacted Dieterich on March 28 and asked her to re-write the "Quality Assurance" form, leaving out certain parts of it which Weiler objected to as being content which should not be on the (first page) "Quality Assurance" form but rather on the (second page) "Review - Investigative Process" form. The content which Weiler was objecting to included a statement, "CNA ill - not paying attention?" entered in the "Contributing Factor" area of the "Quality Assurance" form. Dieterich responded on April 8 by writing a note stating that she did not feel comfortable with re-writing the incident report. After receiving this note, Weiler wrote a note back to Dieterich on April 10, repeating her objections to the manner in which Dieterich had completed the "Quality Assurance" form and her instructions that Dieterich should re-write it. Dieterich then responded to this, by sending back a note disagreeing with Weiler's objections, and also stating, "I will call 'State' on Monday to seek guidance in this issue - we need clarification of how to complete the form."

Dieterich wrote this note on April 10, which was a Sunday. Thus, her indication "I will call 'State' on Monday" would reasonably have been understood as an indication that she would call "State" on the following day. Dieterich testified that in the parlance of the nursing home business, a reference to "State" was widely understood as being to the Bureau of Quality Assurance of the Department of Health and Family Services, the agency that regulates nursing homes.

Despite continuing to disagree with Weiler's objections to the manner in which she had originally completed the "Quality Assurance" form, Dieterich did prepare a re-written version of that form, as well as of the "Review - Investigative Process" form. On the re-written "Quality Assurance" report form, she substituted "foot pedals not on W/C" for the entry "CNA ill - not paying attention?" she had originally made for the "Contributing Factor" element. In that respect, this effectively complied with the original request that she re-write that form to remove that entry. However, Dieterich also changed the "Quality Assurance" form by dating her signatures on it with the indication "3/23/05 (rewritten 4/10/05)." Also, on the re-written "Review - Investigative Process" report, Dieterich made a number of additions, having to do with a statement by the CNA about being sick and not paying attention, about there not having been footrests on the wheelchair, and about whether the care plan was being followed. Dieterich prepared and submitted these re-written versions of the forms on April 10.

On the following day, Monday, April 11, 2005, Zerwinski telephoned Dieterich, who was not scheduled to work that day and was at home. Zerwinski told her that she was calling from work, and that she was going to put the call on speakerphone so that Weiler, who was present, could hear the conversation. In the conversation, Zerwinski indicated that the re-written "Quality Assurance" report form which Dieterich had submitted was not acceptable, in that Dieterich should not have made the indications on it about the date on which it was re-written. Zerwinski also told Dieterich that her mention of the absence of footrests on the wheelchair was also unacceptable because that could show that LG was not following the care plan. Dieterich explained that her purpose in completing the form in the way she did was to make it known that the CNA involved in the incident was behaving in a neglectful manner and was unsafe; Zerwinski reiterated her view that this should not be put on the "Quality Assurance" report form.

In this conversation, Dieterich told Zerwinski (and Weiler) that she wanted the information to be on the first page, i.e., the "Quality Assurance" report form, because she wanted "State" to see the statement and to investigate the CNA's behavior and how it resulted in the injury to the patient. After this, Zerwinski told Dieterich that she was not allowed to come back to work, and that she should come in and meet with Zerwinski on April 13.

On the same day on which this telephone call took place, April 11, Zerwinski wrote up a "Disciplinary Action Report" against Dieterich which cited both (1) Dieterich's refusal to rewrite the March 24 "Investigation Report" form, and (2) the manner in which Dieterich completed the March 23 "Quality Assurance" report form and her "uncooperative[ness]" and "refusal to take direction" regarding how she completed that report form. This Disciplinary Action Report stated that there was a prior disciplinary history of a verbal warning on April 14, 2003 for absenteeism and a written warning on September 8, 2003 for absenteeism, and it warned that any further absenteeism or failure to follow the directions of supervisors would result in termination. It stated that the disciplinary action being taken was "Final Written Warning".

On the following day, April 12, 2005, Zerwinski wrote up a second Disciplinary Action Report against Dieterich. This one cited "conduct detrimental to resident care, failure to maintain an accurate resident record" and "fail[ure] to document resident skin tear in resident's medical record", alleged to have occurred on March 23, 2005. It referred to an administrative rule relating to conduct of licensed nurses, which requires that a patient's medical chart include documentation of all accidents. It stated that the disciplinary action being taken was discharge. This discipline related to the incident on March 23 in which a patient's toe was run over with a wheelchair, and it alleged that Dieterich had failed to note the resident's skin tear on his medical chart.

Dieterich was not given copies of or otherwise made aware of either of these Disciplinary Action Reports until April 13, 2005 when she reported for the meeting which she had been instructed to come in for. At that time she was shown both of the Disciplinary Action Reports and notified that she was being discharged. 
 

Prima facie case - The commission believes that the evidence which was introduced at the hearing in this matter, including that reflected in the description of the facts set out above, clearly established a prima facie case, on two theories.

First, the evidence establishes a prima facie case of retaliation because Dieterich had made a covered report to an employee of LG in a supervisory capacity or in a position to take corrective action.

The April 11 Disciplinary Action Report given to Dieterich when she was discharged was expressly based at least in part on Dieterich's completion of the March 23 "Quality Assurance" report. The evidence in the record makes it unmistakably clear, that the objection to Dieterich's completion of the March 23 "Quality Assurance" report had to do with information she included in it about the nursing assistant being ill and not paying attention. The issuance of this discipline to Dieterich at the time she was discharged, supports a finding that it was a reason for the discharge.

That report - and Dieterich's inclusion in that report of information about the nursing assistant being ill and not paying attention, and about the patient sustaining an injury - was information that would lead a reasonable person to believe that there existed a situation in which the quality of a 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 violated standards established by state law or rule or federal law or regulation or clinical or ethical standards established by a professionally recognized accrediting or standard-setting body and posed a potential risk to public health or safety, within the meaning of Wis. Stat. § 146.997(2). Because this report was given to employees of LG in a supervisory capacity or in a position to take corrective action, its submission was protected conduct. Ibid. The fact that the discharge of Dieterich followed so closely on the heels of her submission of this report, as well as the direct evidence (in the form of the Disciplinary Action Reports) that its submission was a factor in the discharge, suffices to establish a prima facie case of retaliation under HCWPA.

Second, the evidence establishes a prima facie case of retaliation based on a belief that Dieterich had made a covered report to a state agency.

By no later than Monday, April 11, Zerwinski was aware that in a note written on the previous day, Dieterich had said that she was going to call "State" on Monday. There is no evidence that Dieterich ever subsequently told Zerwinski that she had not in fact called "State" on Monday, April 11, as she had said she was going to. Thus, as of Tuesday, April 12, when the Disciplinary Action Report discharging Dieterich was prepared, and also as of Wednesday, April 13, when Dieterich was informed that she was discharged, the information which Zerwinski had was such that she could have believed that Dieterich had in fact already called "State", on the previous Monday.

The HCWPA prohibits employers from retaliating against an employee because the employer believes that the employee made a report of the kind protected under the Act (which includes reports to agencies of the State). Wis. Stat. § 146.997(3). It is not necessary, that such a report actually have been made, if the employer is retaliating because of its belief that the report was made.

The evidence described above is clearly sufficient to support a finding that when the discharge decision was made, Zerwinski and Weiler believed that Dieterich had, on April 11, made a report to the Bureau of Quality Assurance about the March 23 incident in which a patient's toe was run over by a wheelchair. The evidence is also sufficient to support a finding that they would have believed, that Dieterich's report would have mentioned matters including the injury to the patient in question. Thus, the belief of Zerwinski and Weiler would have been that Dieterich had made a report of the type covered by Wis. Stat. 146.997(2).  (2)

The commission does not intend to indicate by the above, that the evidence in the record proves conclusively and beyond the possibility of rebuttal through the introduction of further evidence, that Zerwinski and Weiler had these beliefs. The burden of proof applicable here, is a preponderance of the evidence. The evidence described above all tends to suggest that by April 12, Zerwinksi and Weiler would both have believed that Dieterich had made a report to the Bureau of Quality Assurance on April 11 concerning matters including an injury to a patient. Significantly, there is no countervailing evidence in the record, because the complaint in this matter was dismissed without any testimony being given by any representative of LG. Therefore, a preponderance of what evidence there is in the record at this point, supports Dieterich's position.
 

Proof of pretext - As noted above, the ALJ dismissed the case at hearing based on a theory that Dieterich failed to make out a prima facie case; he then wrote a decision which relied on a different rationale, that being that she "failed to establish that the reasons outlined by the Respondent as a basis for her termination were a pretext for unlawful and retaliatory actions against her".  (3)

The ALJ's statement of this rationale raises a threshold question: What exactly was he referring to when he spoke of "the reasons outlined by the Respondent as a basis for [Dieterich's] termination"?

A respondent's burden to articulate a non-discriminatory explanation for a challenged adverse action cannot be satisfied by assertions of its counsel in argument; it must be made by the introduction of admissible evidence. See, e.g., Kalsto v. Village of Somerset (LIRC, October 3, 2000), citing, Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 25 FEP Cases 113, 116 (1981). While a respondent's burden of articulating a legitimate, nondiscriminatory reason for its actions can be met by evidence which comes into the record as part of the complainant's case-in-chief, see, e.g., Cortez v. City of Milwaukee (LIRC, 01/31/01), in this case there was little that can be pointed to as evidence bearing on that burden. Because the ALJ granted LG's motion to dismiss, the respondent never presented any testimonial evidence; thus, no one ever testified, as a witness for LG, what the reasons were for the decision to terminate Dieterich. Furthermore, the limited testimony by Dieterich about the discharge meeting does no more than to confirm that she was given the Disciplinary Action and was informed by Zerwinski that the Disciplinary Action Report dated April 12 referred to the toe injury on March 23. Thus, the only evidence in the record which can be argued to go towards satisfying LG's burden to articulate a legitimate, nondiscriminatory reason for its actions, consists of the two Disciplinary Action Reports themselves.

A complainant may establish pretext either directly by showing that a discriminatory reason more likely motivated the employer, or indirectly by showing that the employer's proffered explanation is unworthy of credence. Puetz Motor Sales v. LIRC, 126 Wis. 2d 168, 376 N.W.2d 372 (Ct. App. 1985). The commission concludes for several reasons that, on the current state of the record, there is sufficient evidence to establish that the matters addressed in the Disciplinary Action Reports were pretexts for unlawful retaliation.

First, the discharge appears to have been premised at least in part on the notion that the "failure to document" charge contained in the April 12, 2005 Disciplinary Action Report, was another violation occurring after a "final warning", which was contained in the April 11, 2005 Disciplinary Action Report. Thus, if the April 11, 2005 "final warning" Disciplinary Action Report was questionable, it raises questions about the April 12, 2005 discharge action.

The Disciplinary Action Report form used by LG contains an inquiry into whether there was "any record of prior disciplinary action(s) in the employee's file in the preceding eighteen months". On the April 11, 2005 "final warning" Disciplinary Action Report, there was a notation under this inquiry stating:

4/14/03 - verbal absenteeism
9/8/03 - written absenteeism

There are several problems here. First, both dates cited are more than 18 months prior to anything cited in the April 11, 2005 Disciplinary Action Report.  (4)   Thus, on its face, there is something suspicious about this Disciplinary Action Report. Second, Dieterich testified that as of April 13, 2005, when she was given the Disciplinary Action Report, she had not been counseled on the 2003 absenteeisms referenced there at any time since 2003. Bloom, who had been a supervisor at LG, testified that LG followed a practice of "progressive discipline" which had a 4-step program in which there was a verbal warning, a written warning, another written warning with a suspension, followed by termination. She was also asked about LG's practices regarding consideration of old incidents of absenteeism in subsequent discipline, but the ALJ sustained an objection to this on relevance grounds.  (5)   Dieterich's counsel was allowed to make an offer of proof to the effect that if allowed to answer, Bloom would have testified that it was not LG's practice to consider absenteeisms that are two years old for which there had not been a recurrence, and that it was in fact LG's routine policy that absenteeism after 6 months would be removed from the record, if not officially, then in the sense that they were not considered after that period of time.

It is thus suspicious that on April 11, 2005, LG issued Dieterich a "final warning", at the third step of its progressive discipline system, and it is thus reasonable to question the bona fides of the subsequent imposition of a fourth-step discharge penalty.

The April 12, 2005 Disciplinary Action Report also appears suspicious in that, its date notwithstanding, it was a 4th-step (discharge-level) discipline issued at exactly the same time as a 3rd-step discipline (the April 11, 2005 final warning). The purposes of a "progressive discipline" system are both that the issuance of discipline at one step my help deter further problems, and that if discipline is issued at one step and then further problems do occur it is more reasonable to view the further problems as wrongful, considering that the individual had warning. It is inconsistent with these purposes to issue both a 3rd-step "final warning" and a 4th-step discharge at the same time, in that it renders the warning aspect of the 3rd-step "final warning" pointless. According to an offer of proof, if it had not been excluded by the ALJ on grounds of relevance,  (6)   Bloom would have offered testimony that traditionally disciplines at the steps of LG's progressive discipline policy were handed out separately as incidents occurred along the way and it was not in keeping with LG's policy to issue multiple steps at one time.

Finally, the April 12, 2005 Disciplinary Action Report, which discharged Dieterich for her alleged failure to make a notation on the patient's chart concerning the skin tear he sustained when the wheelchair was run over his toe, is also suspicious given the testimony by Dieterich about the way similar charting failures were usually handled. Dieterich testified that she was not aware of any other employee having been discharged for failure to document a minor injury on a patient's chart, that nurses did forget to make chart entries at times, that she estimated that once every couple weeks someone would forget to make a nurses' note, that an opportunity was usually provided to write a late entry, that over her 5 years there she had been asked to put in late entries and was aware that others had as well. In addition, as Dieterich argued, in completing the second page "Review - Investigative Process" report as part of her review of it, Nurse Boyle had answered "Yes" to the question, "Was twenty-four (24) hour follow-up and documentation adequate and complete?" (emphasis added). While the commission is not persuaded by Dieterich's argument that this proves she did make an entry on the patient's chart, this entry does tend to undercut the idea that Dieterich's failure to make an entry was actually considered to be such a serious violation by LG that it would resort to discharge. Nurse Boyle must have been aware that Dieterich made no chart entry about this incident - because it was Nurse Boyle herself who appears to have made the first chart entry about it, later in the day on March 23, and she would have seen that there was no previous entry concerning it. If she was still willing to certify in her review of the "Review - Investigative Process" report that follow-up and documentation of the incident had been adequate and complete, it is hard to understand how LG could arrive at the conclusion that this was a dischargeable offense. (7)

For the foregoing reasons, the commission concludes that based on the record as it now stands - which is to say, as it stood when Dieterich rested and LG moved to dismiss - there is sufficient basis to conclude that the reasons for discharge apparently reflected in the Disciplinary Action Reports are unworthy of credence, and that it appears more likely that LG was motivated by a desire to retaliate against Dieterich for the reports she made to it, and the report it believed she had made to the state, concerning the March 23 injury to a patient and the possible cause of that incident. 
 

Improvident dismissal of the complaint - The commission has repeatedly advised against the improvident granting of motions to dismiss complaints at the close of the complainant's case without hearing the respondent's evidence. Thus, 20 years ago, the commission warned:

Caution must be exercised in granting a request to dismiss at the close of a complainant's case. Before granting such a request, the Administrative Law Judge must be fully knowledgeable of what facts a complainant needs to present to establish his or her case and exactly what evidence has been presented at the hearing.

Holcomb v. American Convenience Products (LIRC, Mar. 25, 1988) (emphasis added).

Subsequently, after a number of occasions on which the commission found it necessary to set aside decisions of ALJs which had dismissed complaints at the close of the complainants' cases, see, e.g., Frierson v. ASHEA Industrial Systems (LIRC, Apr. 6, 1990), Buska v. Central Building Management (LIRC, Sep. 28, 1995), Harsh v. County of Winnebago (LIRC, Nov. 6, 1998), Dodson v. Milwaukee Wire Products (LIRC, Apr. 23, 2001), the commission renewed its caution:

T]he administrative law judge's decision to dismiss this matter on the respondent's motion without the respondent having put in its rebuttal was ill-advised. Caution must be exercised in granting a request to dismiss at the close of a complainant's case and, before granting such a request, the administrative law judge must be fully knowledgeable of what facts a complainant needs to present to establish his or her case and exactly what evidence has been presented at the hearing. A dismissal at the close of the complainant's case-in-chief contemplates a circumstance in which it is clear that, whether or not the respondent introduces any evidence on its behalf, there is simply no way in which the complainant can reasonably prevail. The commission is of the view that, in all but the clearest and most unambiguous of circumstances, the best practice is to require the respondent to go forward with its case so that the fact-finder may consider all of the relevant evidence.

Roberge v. Dept. of Ag., Trade and Consumer Protection (LIRC, May 31, 2005) (emphasis added).

After a number of further occasions on which the commission again found it necessary to set aside ALJ's decisions dismissing complaints at the close of the complainants' cases, see, e.g., Beyers v. Mediq PRN (LIRC, Jun. 27, 2005), Raven v. Shopko Stores (LIRC, Feb. 28, 2006), Gunty v. City of Waukesha (LIRC, Mar. 29, 2007), the commission again renewed its caution, referring to its statement in Roberge that such dismissals should be avoid "in all but the clearest and most unambiguous of circumstances". It explained:

Often a respondent has a strong defense which could be presented expeditiously and without unduly prolonging the hearing, yet it opts to request a dismissal on the mistaken belief that such a resolution best serves its interests. The respondent may be better off taking the time to put on its evidence than run the risk that a higher level decision-maker will disagree with the administrative law judge's conclusion that the complainant failed to meet his evidentiary burden, as has happened here. As this case illustrates, granting the request for dismissal does nobody any favors -- the parties must undergo a second probable cause hearing, the administrative law judge who sought to shorten the process must now hold an additional hearing, and the commission is unable to finally resolve the case before it, because the record is incomplete. For these reasons, the commission strongly recommends that mid-hearing dismissals be granted only after careful consideration and in the most narrow of circumstances.

Cappelletti v. Ocean Spray Cranberries (LIRC, Feb. 15, 2008). See also, Arvin v. C & D Technologies (LIRC, Oct. 31, 2008) ("The commission has repeatedly advised against the premature dismissal of a complaint before both parties' evidence has been heard", citing Roberge, Cappelletti, Holcomb). (8)

For the reasons stated above, the motion to dismiss the complaint made by LG at the close of Dieterich's case should not have been granted. LG should have been advised that it had the option of either resting itself, or putting in its case. Because LG has not yet been given this option, it is necessary to remand this matter for such further proceedings.
 

Conclusion - The record made at the hearing in this matter established a prima facie case. It was also sufficient to call into question the only reasons which could be considered to have been articulated as to LG's reasons for the discharge. Therefore, dismissal of the complaint at the close of Dieterich's case was inappropriate. LG should have been advised that it had the option of either resting, or putting in its case. Because LG has not yet been given this option, it is necessary to remand this matter for such further proceedings.

The commission accepts the request by Dieterich's counsel that this matter go back to a different ALJ. The ALJ's rulings indicate that he arrived at such a degree of certainty about the weight and significance of the evidence before him, that he might have difficulty approaching the case with an open mind. In addition, because there is a transcript, the content of the part of the hearing held thus far will be fully available to a new ALJ assigned to the case.

The commission's decision herein should not be considered to be controlling, on the basis of "law of the case" or any other theory, on the ultimate substantive issues presented. The commission recognizes that evidence which may be presented by LG as part of its case in the further hearing to be held, may well undercut evidence currently in the record on which the commission relied in arriving at the conclusions described above, warranting a different outcome. Thus, the description of facts set out above in this Memorandum Opinion should not be viewed as constituting findings that are binding or conclusive when this matter is before a new ALJ for decision. The new ALJ to whom this matter is assigned may, after considering all of the evidence already presented and all of the further evidence which may be presented, arrive at any ultimate decision he or she finds to be warranted by that evidence. The single mandate of this decision which the commission wishes to make clear, is that on remand the ALJ should allow the case to be fully tried, hearing and considering all of the relevant evidence offered by both parties.

 

NOTE: In addition to the issue under Wis. Stat. § 146.997, another statutory issue found its way into the case. The commission is satisfied that this other issue is not properly part of the case, and should be disregarded, for the following reasons.

The ERD uses a single complaint form for complaints filed under a range statutes which prohibit certain kinds of retaliation against health care workers (Wis. Stat. § § 16.009, 46.90, 50.07, and 146.997). The complaint form notes these statutes, indicates that they each have different retaliation protections, and states that the ERD "will match your complaint with the laws" and notify the complainant of the applicable laws.

The complaint in this case was drafted by Dieterich's attorney, using the ERD's form but incorporating the substantive allegations in a separate sheet. It specifically alleged a violation of § 146.997(3)(a). It did not allege a violation of § 50.07.

Notes in the file indicate that the ERD initially decided to process the complaint under § 146.997 only. This would have been consistent with the allegations of the complaint, not only in that it had specifically cited only that provision, but also in that the allegations of the complaint would not support a claim of a violation of § 50.07. Unlike § 146.997, which protects employees against retaliation because of an employer's belief that certain reports were made, § 50.07 only protects actual contacts or reports. Here there was no allegation in the complaint that Dieterich was discharged because she had actually made such contacts.

For some reason, though, the Initial Determination contained a separate conclusion finding probable cause to believe that there had been a violation of § 50.07. This reference was continued in the Notice of Hearing, and later in the ALJ's decision.

In complainant's briefs to LIRC in this matter, only § 146.997 is mentioned. The commission takes this as reflecting an understanding that there is actually no § 50.07 issue in this case. The decision ultimately issued on remand may so indicate.

 

cc:
Atty. Kathleen M. Lounsbury
Atty. John E. Murray



 

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Footnotes:

(1)( Back ) This was a different type of form from the "Quality Assurance" and "Review-Investigative Process" forms.

(2)( Back ) The complainant has also argued, both at hearing and in her reply brief, that there was a situation covered under the HCWPA here because Zerwinski and Weiler believed that the complainant "was going to" make a report to the State. In this respect, her argument is in error. Unlike the anti-retaliation protection provided by Wis. Stat. 111.322(2m)(d), which expressly protects employees from retaliation because the employer believes that they "may engage in" (i.e., in the future) covered protected activity, the anti-retaliation protection provided by the HCWPA in 146.997(3) uses only the past tense, expressly referring only to an employer's beliefs that an employee "reported..., participated in or testified in..., [or] provided" certain information or proceedings. As noted above, though, the evidence here that the complainant told the employer on Sunday, that she was going to contact the State on the following Monday, is sufficient to support a finding that on the following Tuesday, the employer believed that she "had" made the report to the State.

(3)( Back ) The reason for the ALJ's very conspicuous failure to mention his earlier "no prima facie case" rationale in his later written decision, is not clear. While other explanations are possible, the commission is inclined to take it as reflecting a conscious abandonment by the ALJ of that rationale, based on his recognition that it was untenable given the evidence in the record.

(4)( Back ) Eighteen months after September 8, 2003 would be March 8, 2005. The earliest date cited in the April 11, 2005 Disciplinary Action Report was March 17, 2005, which was the date of the conversation which was the subject of one of Dieterich's allegedly improper reports.

(5)( Back ) This was erroneous; this was clearly not "irrelevant", given that the discharge in this case was based in part on a disciplinary notice which cited old incidents of absenteeism. On remand, such evidence should be allowed if offered.

(6)( Back ) This ruling too was erroneous. Considering the manner in which disciplinary notices were issued to the complainant, testimony about how LG's progressive discipline policy was applied in practice was clearly within the bounds of relevance. On remand, such evidence should be allowed if offered.

(7)( Back ) At hearing, Dieterich objected to the receipt of the patient's chart on the grounds that it had not been timely identified before hearing as a potential exhibit pursuant to Wis. Admin. Code DWD 218.17. LG responded that the document was within the exception for rebuttal evidence. The ALJ received the document. The commission believes that this ruling was correct; but more important, on remand this issue will be beside the point. The purpose of the rule is to prevent surprise and allow time to prepare to respond to evidence. Dieterich now knows that this document is being relied on by LG, and will have both the opportunity to respond to it in presentation of rebuttal evidence to LG's case on remand, and time to prepare that response.

(8)( Back ) The commission can only speculate at the reasons that, despite continued repetition of the advice described above, it still sees the number of cases it does in which complaints are dismissed at the close of cases-in-chief. One possible contributing factor may be that some ALJs may believe that they are required to rule on such motions, one way or the other, if they are made. That is not correct. There is no statute, or rule, or any other authority, which requires that when a respondent moves to dismiss a complaint at the close of a complainant's case, the ALJ must then affirmatively and expressly issue a decision on the sufficiency of the complainant's case before the hearing can continue. ALJs may simply decline to rule on such motions, leaving it to LG to decide whether it wishes to either rest without offering any evidence, or to put on its case.

 


uploaded 2009/01/20