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

EDWARD LOBACZ, Complainant

STATE OF WISCONSIN DEPARTMENT OF CORRECTIONS, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR200500096


An administrative law judge (ALJ) for the Equal Rights Division (ERD) of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has reviewed the petition and the positions of the parties. Based on its review, the commission decides as follows: 
 

In a charge (CR200403482) filed with ERD on August 23, 2004, Lobacz alleged, pursuant to Wis. Stat. § 230.85, that, while he was employed as a registered nurse in the medical unit of the Racine Correctional Institution (RCI) of the Department of Corrections (DOC), he was retaliated against for engaging in a protected whistleblower activity when he was disciplined and then discharged on March 10, 2004. This charge was dismissed by ERD for untimely filing, i.e., for failure to satisfy the 60-day statute of limitations for whistleblower charges set forth in Wis. Stat. § 230.85(1). Lobacz did not appeal this dismissal.

Subsequently, in a letter received by ERD on January 3, 2005, Lobacz alleged that DOC had retaliated against him, when he was disciplined and then discharged on March 10, 2004, within the meaning of the Health Care Worker Protection Act (HCWPA)(Wis. Stat. § 146.997) for reporting to members of management that a prior supervisor and a co-worker had falsified their time records. ERD mailed Lobacz a complaint form which he completed and returned to the department on February 3, 2005. This charge is the one under consideration here (CR200500096).

On March 17, 2005, DOC filed a motion to dismiss Lobacz's charge of HCWPA retaliation on the bases of untimeliness, claim preclusion, and failure to state a claim for relief.

ERD issued a preliminary determination on June 20, 2005, essentially granting DOC's motion and dismissing Lobacz's complaint. Lobacz filed a timely appeal, and, on September 29, 2005, an ERD administrative law judge (ALJ) issued a decision affirming the dismissal. Lobacz filed a timely petition for commission review. 
 

Timeliness

Lobacz's HCWPA charge was timely filed as to his discharge but not as to his prior disciplinary meetings and warning.

DOC argues that the operative date for determining the actionable 300-day period specified in Wis. Stat. § 111.39(1), made applicable to charges filed under the HCWPA by operation of Wis. Stat. § 146.997(4)(a), should be February 3, 2005, the date that Lobacz's completed HCWPA complaint form was received by ERD. However, Lobacz's January 3, 2005, letter satisfied the requirements set forth in Wis. Adm. Code § DWD 218.03(3) for a cognizable complaint, i.e., it was signed by Lobacz, included his name and address, provided sufficient information from which ERD could identify and contact the respondent, and included a statement of the underlying allegations. As a result, the operative date for application of Wis. Stat. § 111.39(1) is January 3, 2005; the actionable 300-day period is March 9, 2004, through January 3, 2005; and Lobacz's charge was timely filed as to his March 10, 2004, discharge, but not as to the disciplinary meetings and warnings, all of which occurred prior to March 9, 2004.  
 

Claim preclusion

DOC argues that, because Lobacz could have included his HCWPA charge as part of his earlier complaint, he should be precluded from raising it in a subsequent complaint by operation of the doctrine of res judicata (claim preclusion).

There is no authority for applying claim preclusion to the administrative process in this manner, and to do so would be inconsistent with pleading requirements and practices under the Wisconsin Fair Employment Act (WFEA). Even if the doctrine of issue preclusion were applicable to serial WFEA charges, it could have no application here because the issue of HCWPA retaliation was not actually litigated, decided, or, in fact, even pled, in Lobacz's earlier charge.  
 

Failure to state a claim for relief

A complaint may be dismissed prior to hearing on a motion to dismiss for failure to state a claim for relief when it appears that, even if what is claimed by the complainant is true, a decision in favor of the respondent is nevertheless required as a matter of law. See, Mroczkowski v. Belmark, Inc., ERD Case No. 200301289 (LIRC April 28, 2005); Ficken v. Harmon Solutions Group, ERD Case No. CR200003282 (LIRC Feb. 7, 2003); Alvey v. Briggs & Stratton, ERD Case No. 8951036 (LIRC Nov. 27, 1991).

The Health Care Worker Protection Act states as follows, as relevant here:

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.

DOC first argues that Lobacz has failed to state a claim for relief because he failed, in his charge of retaliation or upon request of the ERD investigator, to identify a "state law or rule or federal law or regulation" within the meaning of Wis. Stat. § 146.997(2)(a)1. However, this is not fatal to Lobacz's claim.

In his various communications to RCI management prior to his discharge, which he now claims as protected reports within the meaning of Wis. Stat. § 146.997(2), Lobacz stated that he believed the alleged falsification of time cards constituted "fraud." Lobacz's description of the alleged time reporting irregularities as well as his allusion to fraud, an act subject to both civil and criminal penalties, "would lead a reasonable person to believe" that an employee of the RCI health care facility had violated a state law or rule within the meaning of Wis. Stat. § 146.997(2)(a)1. Neither the HCWPA nor the pleading requirements of ERD require that a complainant specifically identify which state law or rule he believes has been violated in order to obtain HCWPA protection.

The complainant has now identified Wis. Stat. 946.12(4)  (1)  as the specific state law he believes was violated when his supervisor and a co-worker falsified their time records. DOC, relying upon State v. Kort, 54 Wis.2d 129, 194 N.W.2d 682 (1972), argues that this statutory provision could not be relied upon to obtain a criminal conviction of a state employee engaging in falsification of a time card because its language is not sufficiently definite. However, this is not germane to the question of whether a reasonable person would have believed, based on Lobacz's allegations of time card fraud, that a violation of a state or federal law or rule had been committed, i.e., the question is not whether the allegations set forth in the employee's report are sufficient to establish a violation of a specific state or federal statute/rule, but rather whether they were sufficient to provide a motive for the respondent to retaliate.

Moreover, the decision in Kort necessarily relies upon a different provision of Wis. Stat. § 946.12, i.e., § 946.12(2), because the public employee/officer in that case was not alleged to have falsified an entry in a report within the meaning of 946.12(4) but instead to have claimed reimbursement of actual but allegedly ineligible business expenses. Here, even if DOC's argument is germane to the interpretation of the relevant language of Wis. Stat. § 146.997(2)(a), the statutory language appears to be sufficiently definite to place a public employee on notice that intentional falsification of a report, including a time report, could constitute a violation of Wis. Stat. § 946.12(4).

DOC finally argues, and the ALJ agreed, that Wis. Stat. § 946.12(4) and, presumably, those civil or criminal statutes relating to fraud, would not be the types of state law which would fall within the purview of Wis. Stat. § 146.997 because they do not relate to the care or treatment of patients in a health care setting, and that Lobacz's charge fails to state a claim for relief as a result. This argument and the ALJ's decision rely on the statement in Korn v. Divine Savior Healthcare, ERD Case No. CR20010309 (LIRC Jan. 16, 2004), that "...the Health Care Worker Protection Act...is limited to protecting employees to the extent that they make reports about things which they believe may result in inadequate care of or mistreatment of patients."

However, Lobacz's report would fall within the purview of the HCWPA. Wisconsin Statutes § 146.997(2)(a)1. makes reference to "any state law or rule or federal law or regulation," and does not limit its application to any law or rule relating to patient care or treatment. The commission's decision in Korn, supra., related to the proper scope of Wis. Stat. § 146.997(2)(a)2., and was not intended to address the proper scope of Wis. Stat. § 146.997(2)(a)1. or the HCWPA in general.

ORDER

The ALJ's decision is reversed. The respondent's motion to dismiss is denied. This matter is remanded to the Equal Rights Division for further proceedings consistent with this decision.

Dated and mailed November 3, 2005
lobaced . rrr : 115 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


cc:
Attorney William P. Nickolai
Attorney Dolores A. Kester



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Footnotes:

(1)( Back ) 946.12 Misconduct in public office. Any public officer or public employee who does any of the following is guilty of a Class I felony:...

(4) In the officer's or employee's capacity as such officer or employee, makes an entry in an account or record book or return, certificate, report or statement which in a material respect the officer or employee intentionally falsifies;

 


uploaded 2005/11/04