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

JAMES W RATSCH, Complainant

MEMORIAL MEDICAL CENTER, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR200504192


In a retaliation complaint under the Elder Abuse/Health Care Worker Laws ( 16.009, 46.90, 50.07 and 146.997) filed with the Equal Rights Division on November 7, 2005, James Ratsch alleged that he had reported a denial of essential health care to black Africans by Memorial Medical Center with the U.S. Department of Health and Human Services' Office for Civil Rights (DHHS/OCR) and that he was subsequently denied employment interviews by Memorial Medical Center for RN positions announced in June and August 2005. (On page 2 of his complaint Ratsch indicates that he was denied interviews in June and October 2005.) In section 5 of the complaint Ratsch states, "Mr. [Glen] Grady's activities are chronicled in a mailing to Leanna Ware - sent 11-04-05".  (1)  Ratsch's mailing to Leanna Ware included the U.S. Department of Health and Human Services, Office for Civil Rights' Resolution Agreement, and the case file has Ratsch's mailing to Leanna Ware stapled together with his complaint in this matter.

On November 14, 2005, an investigator for the ERD's Civil Rights Bureau issued a Preliminary Determination dismissing Ratsch's complaint. The Preliminary Determination stated in part as follows: "You are alleging that Memorial Medical Center denied you employment interviews because you made a report to the US Department of Health and Human Services, Office for Civil Rights ("OCR"). We enforce several anti-retaliation statutes, but none applies to this situation."

Ratsch filed an appeal of the investigator's Preliminary Determination with the ERD on November 21, 2005. Ratsch asserted, in relevant part, that "I believe MMC Administrator Grady's repeated refusal to interview me violates PROBHIBITION AGAINST RETALIATION AND INTIMIDATION, page (5), paragraph (D)(ENCLOSURE) of DHHS REGION V OCR transaction Number 05-28920, an agreement signed by Mr. Grady on May 19 (sic), 2005. (Enclosure.)" (Emphasis in original.)

Following the parties' submission of several pieces of correspondence, an administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in the matter. The ALJ concluded that "...Mr. Ratsch's complaint only alleges retaliation for having complained to a federal agency and the Elder Abuse/Health Care Worker Laws do not make illegal retaliation for having complained to a federal agency", and therefore affirmed the Preliminary Determination's dismissal of Ratsch's complaint.

Based upon its review of this matter, for reasons stated in the Memorandum Opinion attached to this decision the Labor and Industry Review Commission concludes that Ratch's complaint does effectively allege retaliation for having complained to a state agency, but that dismissal of his complaint is appropriate because none of the statutes in question cover his situation. Accordingly, the commission hereby issues the following:

ORDER

Ratsch's complaint filed in the above-captioned matter is dismissed.

Dated and mailed March 10, 2006
ratscja . rpr : 125 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

James Ratsch was apparently employed as the Director of Nursing for the respondent Memorial Medical Center from sometime in 1992 until October 4, 1994. According to Ratsch, in August of 1994 the respondent's administrator, Glen Grady, "abruptly" advised him that he would no longer be the DON, but was creating a new position (community outreach nursing) that would be his job and elevating Sarah Trunkel from her quality assurance duties to the position of hospital DON. Ratsch asserts that on October 4, 1994, he told Grady he "was not accepting the new 'job', but that I would rather resign, than to be party to a sham and a cover-up." Ratsch asserts that "Ms. Trunkel was privy to knowledge about Mr. Grady's past behavior with female employees at the Medical Center. In sum, I was the aggrieved 3rd party in a hostile work environment-the male victim of sexual harassment in the workplace and I lost my job because of it."

On October 8, 2004, Ratsch, on behalf of a family of black Africans, filed a complaint with the U.S. Department of Health and Human Services, Office for Civil Rights (DHHS/OCR), alleging that five of the family members had tested positive for a tuberculin skin test known as Purified Protein Derivative (PPD) and that the respondent had discriminated against this family on the basis of, among other things, race in the denial of medical treatment in the form of chest x-rays for those members with positive PPDs.

Prior to DHHS/OCR's completion of the investigation it determined that there was a possibility of race discrimination, after which the parties agreed to the terms of a Resolution Agreement. Based on a general provision in the Agreement, the Agreement became effective on May 19, 2005, the date that it had been signed by the respondent and the OCR Regional Manager.

Another general provision of the Agreement states, "This complaint was also filed with the Wisconsin Department of Health and Family Services, Office of Affirmative Action and Civil Rights Compliance." (Emphasis added.) The Wisconsin Department of Health and Family Services is a state agency.

Section D of the general provisions, titled "Prohibition Against Retaliation and Intimidation", reads as follows:

The Recipient [Memorial Medical Center] shall not intimidate, threaten, coerce, or discriminate against any person who has filed a complaint, testified, assisted, or participated in any manner in the investigation of the matter addressed in the Agreement. The Recipient is in full agreement with this provision and understands its obligation to abide by these guidelines. It is requested that OCR retain as part of this file information presented documenting the pre-existing and on-going hostile relationship between MMC and Mr. Ratsch. MMC and its officers reserve the right to take whatever actions deemed appropriate and necessary in its own defense.

Section F of the general provisions provides that if OCR finds that the Recipient has not complied with any provision of the Agreement that OCR could resume its investigation, request the initiation of administrative or judicial enforcement proceedings, including judicial action for specific enforcement of the Agreement, or take other appropriate action to secure the Recipient's compliance with the Agreement and the applicable statute and regulation [Title VI of the Civil Rights Act of 1964 and C.F.R 80.6].

The relevant statutes involved in Ratsch's retaliation complaint before the ERD are Wis. Stats. § § 16.009, 46.90, 50.07 and 146.997.

Section 16.009(5)(a)1 makes it unlawful to: "Discharge or otherwise retaliate or discriminate against any person for contacting, providing information to or otherwise cooperating with any representative of the board." Section 16.009(1)(ag) states, " 'Board' means the board on aging and long-term care."

Under § 46.90(4)(a)1, "Any person may report to the county agency or to any state official, including any representative of the office of the long-term care ombudsman under s. 16.009(4), that he or she believes that abuse, material abuse or neglect has occurred..." "Abuse", "Material abuse" and "Neglect" are defined under § § 46.90(1)(a), (e) and (f), respectively, and all pertain to "an Elder person."2(2) Wis. Stat. § 46.90(4)(b)1.a. states, "No person may discharge or otherwise retaliate or discriminate against any person for reporting in good faith under this subsection."

Section 50.07(1)(e) provides that no person may "Intentionally retaliate or discriminate against any resident or employee for contacting or providing information to any state official, including any representative of the office of the long-term care ombudsman under s. 16.009(4), or for initiating, participating in, or testifying in an action for any remedy authorized under this subchapter." This "subchapter" is "Subchapter I- Care And Residential Facilities" and pertains to an adult family home, a residential care apartment complex, a community-based residential facility and a nursing home, as defined under § § 50.01, 50.01(1d), 50.01(1g) and 50.01(3), respectively.

Section 146.997 provides in relevant part as follows:

(2) REPORTING PROTECTED. (a) Any employee of a health care facility or of a health care provider who is aware of any information, the disclosure of which is not expressly prohibited by any state law or rule or any federal law or regulation, 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 professionally recognized accrediting or standard-setting body that has accredited, certified or otherwise approved the health care facility or health care provider; 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....

(c) Any employee of a health care facility or health care provider may initiate, participate in or testify in any action or proceeding in which a violation specified in par. (a) 1. or 2. is alleged.
...

(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), in good faith initiated, participated in or testified in any action or proceeding under (2)(c)...or because the health care facility, health care provider or employee believes that the person reported in good faith any information under sub. (2)(a), in good faith initiated, participated in or testified in any action or proceeding under sub. (2)(c)...

Wis. Stat. § 146.997(1)(c) states that " 'Health care facility' means a facility, as defined in s. 647.01(4), or any hospital, nursing home, community-based residential facility, county home, county infirmary, county hospital..."

Under Wis. Stat. § 111.32(6)(a), a state " 'agency' means an office, department, independent agency, authority, institution, association, society or other body in state government created or authorized to be created by the constitution or any law, including the legislature and the courts."

Wis. Stat. § 146.997(1)(b) states that " 'Disciplinary action' has the meaning given in s. 230.80(2)."

Wis. Stat. § 230.80(2) provides as follows:

(2) "Disciplinary action" means any action taken with respect to an employee which has the effect, in whole or in part, of a penalty, including but not limited to any of the following:

(a) Dismissal, demotion, transfer, removal of any duty assigned to the employee's position, refusal to restore, suspension, reprimand, verbal or physical harassment or reduction in base pay.

(b) Denial of education or training, if the education or training may reasonably be expected to lead to an appointment, promotion, performance evaluation or other personnel action.

(c) Reassignment.

(d) Failure to increase base pay, except with respect to the determination of a discretionary performance award.

The ALJ apparently concluded that Ratsch's "complaint" only alleges retaliation for having complained to a federal agency because Ratsch's complaint is stamped received by the ERD on November 7, 2005, at 10:14 a.m. and there is no statement in the complaint itself that specifically references his having reported to an agency of the state as defined by Wis. Stat. § 111.32(6). However, the following causes the commission to believe that Ratsch does effectively allege retaliation for having complained to a state agency. First of all, in section 5 of the complaint Ratsch states, "Mr. Grady's activities are chronicled in a mailing to Leanna Ware - sent 11-04-05". Ratsch's mailing to Leanna Ware, like his complaint, is dated November 4, 2005, but is stamped as having been received at the ERD on November 7, 2005, at 7:36 a.m. Second, Ratsch's mailing to Leanna Ware included the U.S. Department of Health and Human Services, Office for Civil Rights' Resolution Agreement, which as previously noted, states that Ratsch's complaint filed with DHHS/OCR "was also filed with the Wisconsin Department of Health and Family Services, Office of Affirmative Action and Civil Rights Compliance", a state agency. Third, the case file in this matter has Ratsch's mailing to Leanna Ware stapled together with his complaint that was filed in this matter, which indicates that the mailing to Leanna Ware is considered to be a part of Ratsch's complaint of alleged retaliation.

These three factors lead the commission to conclude that it would be erroneous to find that Ratsch's complaint only alleges retaliation for having complained to a federal agency. Ratsch effectively reported alleged violations of state and federal laws and a denial of quality health care by the respondent to an agency of the state (the Wisconsin Department of Health and Family Services) when he filed his complaint with the U.S. Department of Health and Human Services, Office for Civil Rights, because the Resolution Agreement states that this complaint was also filed with the Wisconsin Department of Health and Family Services, Office of Affirmative Action and Civil Rights Compliance.

Nevertheless, the commission believes that Ratsch's complaint must be dismissed because none of the statutes in question apply to Ratsch's situation. Section 16.009(5)(a)1 relates to being discharged or otherwise retaliated against for contacting, providing information to or otherwise cooperating with any representative of the board on aging and long-term care. Section 46.90(4)(b)1.a. relates to being discharged or otherwise retaliated or discriminated against for reporting in good faith "Abuse", "Material abuse" and "Neglect" of an "Elder person." Section 50.07(1)(e) relates to being intentionally retaliated or discriminated against for contacting or providing information to any state official, including any representative of the office of the long-term care ombudsman under s. 16.009(4), or for initiating, participating in, or testifying in an action for any remedy pertaining to problems at an adult family home, a residential care apartment complex, a community-based residential facility and a nursing home.

Finally, this brings us to section 146.997, which the commission concludes pertains only to an "employee" of a health care facility or provider, based on the provisions of this statute. First of all, 146.997(2)(a) and (c) specifically refers to "Any employee of a health care facility or health care provider": (2)(a) reporting information that the health care facility or health care provider has 1. violated any state law or rule or federal law or regulation to an agency of the state; or 2. that there exists any situation in which the quality of care provided by 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 risk to public health or safety; or (2)(c) initiating, participating in or testifying in any action or proceeding in which a violation specified in par. (a) 1. or 2. is alleged. (Emphasis added.)

Second, what is prohibited under § 146.997 is taking "disciplinary action", as defined in § 230.80(2). Wis. Stat. § 230.80(2) reads as follows:

(2) "Disciplinary action" means any action taken with respect to an employee which has the effect, in whole or in part, of a penalty, including but not limited to any of the following:

(a) Dismissal, demotion, transfer, removal of any duty assigned to the employee's position, refusal to restore, suspension, reprimand, verbal or physical harassment or reduction in base pay.

(b) Denial of education or training, if the education or training may reasonably be expected to lead to an appointment, promotion, performance evaluation or other personnel action.

(c) Reassignment.

(d) Failure to increase base pay, except with respect to the determination of a discretionary performance award.

(Emphasis added.)

The commission concludes that § 146.997 pertains only to employees in spite of the reference in § 146.997(3) (quoted above) to the prohibition against a health care facility or health care provider taking "disciplinary action" against "any person" and despite the fact that the forms of "disciplinary action" listed under § 230.80(2) is not an exhaustive list. The reason, simply put, is that § 230.80(2) defines what the term "disciplinary action" means (any action taken with respect to an employee) and because all of the types of actions listed under that statute are actions that could only be taken against an employee.

Ratsch has not been an employee of the respondent Memorial Medical Center since 1994. Ratsch, when last employed by the respondent was employed as the DON, is complaining that the respondent failed to interview him in June and August or October 2005 for employment as an RN.

The commission concludes that it would be inappropriate to find that a failure to interview/failure to hire comes within the meaning of a disciplinary action as defined under § 230.80(2).

Finally, in his petition for review, Ratsch requests that the commission "acquire and review all written materials now in the possession of the WI Attorney General's office which are related to the ownership change which occurred at Memorial Medical Center (Neillsville, WI) in 1999, and to acquire and review any and all documents related to such change in ownership which have been filed with the WI Department of Financial Institutions since 1999, including all financial audit records." (Emphasis in original.) However, the commission is unable to do this because its review must be based on the record before it. Also, in his petition Ratsch has emphasized the words "REFUSAL TO RESTORE" (emphasis in original) appearing in § 230.80's definition of "disciplinary action," apparently suggesting that this describes the action the respondent took against him. However, these words do not indicate that the respondent's alleged action against Ratsch falls within the definition of disciplinary action because Ratsch was last an employee with the respondent in 1994, when he worked as the DON, and his instant complaint claim is that the respondent failed to interview him for employment as an RN in 2004.

It appears that Ratsch's only recourse for his retaliation claim against the respondent is with the U.S. Department of Health and Human Services' Office for Civil Rights.

 

NOTE: Ratsch's correspondence to the ALJ included a reference to filing a "viable, contemporary claim of sexual harassment", and it appears that he may have filed a complaint with the ERD which makes this allegation. However, the commission's decision does not address this complaint claim, or any other claim that he may have under other laws.



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Footnotes:

(1)( Back ) Leanna Ware was the Director of the Civil Rights Bureau at the time but is now also the Acting Division Administrator for the ERD.

(2)( Back ) " 'Elder person' means a person who is age 60 or older or who is subject to the infirmities of aging."

 


uploaded 2006/03/13