DAVID A. N. SIEGEL, Complainant
MARSHFIELD CLINIC, Respondent
An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:
1. The respondent, Marshfield Clinic (hereinafter "respondent"), is a health care provider that operates a facility in Marshfield, Wisconsin.
2. The complainant, Dr. David A.N. Siegel (hereinafter "complainant"), is a board certified medical doctor. In July of 2008 the complainant was hired to work as an associate physician in the respondent's anesthesia and pain management department, referred to as the "pain clinic."
3. Because he was not yet licensed to practice medicine in Wisconsin at the time of his hire, the complainant did not begin working for the respondent until January 19, 2009. The complainant spent his first week of employment in orientation. He began seeing patients on January 26, 2009.
4. Among the complainant's job duties was the duty to document his visits with patients, which entailed dictating notes regarding the patient's history, treatment, concerns and observations, which would be transcribed and placed in the patient's medical records. Two nurses were assigned to assist the complainant with his documentation and other tasks. However, the complainant was not satisfied with the quality of the documentation prepared by the nurses and did not believe they were competent to handle his dictation or otherwise assist with his practice. The complainant was involved in ongoing discussions with the respondent about how best to incorporate the nurses into his practice. Ultimately the complainant decided he would handle his own dictation.
5. As a result of the situation described above, the complainant fell behind in completing his documentation. Moreover, the complainant's decision not to use his nurses added a significant amount of time to his patient appointments, which meant that he saw fewer patients than was optimal and that patients were often kept waiting for unacceptable periods of time. In addition to these problems, the complainant's dissatisfaction with his nurses' performance resulted in tensions among pain clinic staff.
6. During the course of his employment the complainant met on a weekly basis with Heidi Reigel, the clinic manager, and Dr. William Yanke, the division medical director, to attempt to resolve issues in the work place.
7. The complainant was frustrated with his work situation and talked about leaving the pain clinic and finding a different job. In early February of 2009 the complainant stated at a staff meeting that if things did not improve he would look for a position elsewhere. On February 26, the complainant sent an e-mail to Dr. Yanke stating that he was exploring other positions, but that he hoped things might still work out and that he would take his time looking in order to give things time to improve.
8. When Dr. Yanke learned that the complainant was thinking of leaving he made additional efforts to work with the complainant in order to improve the situation. In early March of 2009, Dr. Yanke scheduled the complainant to attend "Cattails College," a program the respondent puts on to assist physicians in fitting in to the respondent's culture.
9. Shortly after beginning his employment the complainant concluded that his predecessor, Dr. Alexander Yakovlev, had been overusing certain procedures, including a procedure involving the implantation of a pain pump in a patient. Since doctors are compensated significantly more for procedures than for more conservative pain management measures, the complainant came to believe that Dr. Yakovlev was fraudulently prescribing unwarranted procedures for financial gain.
10. On January 30, 2009, the complainant mentioned his concerns to Dr. Yanke, who advised him to take the matter to Dr. Edward Krall, the respondent's director of risk management.
11. The complainant met with Dr. Krall on February 10, 2009. He told Dr. Krall that he had concerns about Dr. Yakovlev, and wondered if he had a duty to report them to an outside agency. The complainant elaborated that he felt that what Dr. Yakovlev had done was criminal and that his patients were angry about it. Dr. Krall did not request any details from the complainant, but told him to take the matter to Randall Sandfort, the respondent's litigation counsel.
12. The complainant and Dr. Krall met with Mr. Sandfort on March 10, 2009. At that meeting the complainant told Mr. Sandfort about his concerns and asked whether he had a duty to report them. He also inquired whether he would have any liability for Dr. Yakovlev's conduct. The complainant indicated that he believed Dr. Yakovlev had engaged in medical malpractice and fraud.
13. Mr. Sandfort responded by becoming very upset, loud, and aggressive. He yelled at the complainant that he "better know what the fuck he was talking about" before making those types of accusations, and stated that Dr. Yakovlev could sue the clinic if unfounded accusations were made against him, and that he might also sue the complainant for defamation. Mr. Sandfort further stated that if the "feds" came there would be big trouble, and asked the complainant whether his own practice could withstand scrutiny. Mr. Sandfort told the complainant he should do what he was hired to do and mind his own business.
14. The complainant left the meeting, shaken. Immediately thereafter he met with Dr. Krall to discuss what had just happened. The complainant told Dr. Krall that he felt he had been threatened by Mr. Sandfort. He went on to vent his frustrations with the job, and indicated that the confrontation with Mr. Sandfort was the "tip of the iceberg." Dr. Krall, who had been surprised by Mr. Sandfort's reaction and felt the complainant had done nothing to provoke the outburst, listened to the complainant express his concerns, including the concerns that Mr. Sandfort had threatened him, but did not provide any assurance that the complainant had nothing to worry about.
15. Later that day, the complainant told Dr. Krall that he was still upset and wanted another meeting. The complainant stated that he felt like a square peg in a round hole and was not sure if Marshfield Clinic was the place for him. Dr. Krall responded that if the complainant was feeling that way the next step would be to talk with Dr. Yanke about separation. He added that it sounded like it probably was not going to work out and that the complainant should seriously consider moving on. The complainant expressed reservations about doing so, because his daughter was in school and he had just purchased a house.
16. At some point that day the complainant ran into Dr. Yanke, who had heard about the meeting with Mr. Sandfort. The complainant informed Dr. Yanke that he was so upset about the meeting he was not capable of seeing patients that day. Dr. Yanke excused him from doing so. The complainant also told Dr. Yanke he felt he could no longer work at Marshfield Clinic. Dr. Yanke responded that they would meet the next day to discuss a severance package. Dr. Yanke was relieved that the complainant said he wanted to leave.
17. The next day, March 11, 2009, the complainant met with Drs. Krall and Yanke to discuss a mutually acceptable severance agreement. During that meeting the complainant again raised his concerns that Mr. Sandfort had threatened him and stated that part of the reason he was interested in leaving Marshfield Clinic was the meeting with Mr. Sandfort. Dr. Yanke agreed that clearly this was not working out.
18. On March 17, 2009, the respondent presented the complainant with a proposed severance package. The complainant requested some time to think about it. During the March 17 meeting, Dr. Yanke also asked the complainant for a list of patients whom he believed had been improperly treated by Dr. Yakovlev. However, the complainant did not provide the information, indicating that he wanted to have legal counsel before doing so.
19. On March 23, 2009, the complainant met with Dr. Yanke and told him that he was rejecting the severance package. The complainant felt the amount of severance pay offered was inadequate and objected to the fact that acceptance would have required him to agree not to inform any government agency about anything that happened at the respondent or to say anything negative about the respondent. When the complainant told Dr. Yanke he would not accept the severance package, Dr. Yanke responded that they would proceed with termination.
20. After the meeting with the complainant, Dr. Yanke met with Dr. Liss, the respondent's chief medical officer, to discuss the situation. Drs. Yanke and Liss made a decision to discharge the complainant.
21. The following day, March 24, 2009, the respondent notified the complainant by letter that it was terminating his employment because his "practices do not meet acceptable Clinic standards." At the hearing Dr. Yanke elaborated that the discharge was for "inability to get along with staff, inability to advise an effective workflow and efficient office practice, and the chronic problem with documentation and inadequate completion of medical records."
22. The complainant last saw patients on March 31, 2009. He remained on paid administrative leave until May 24, pursuant to the terms of his employment contract.
23. The complainant was never disciplined or warned about his performance prior to his discharge.
24. Dr. Yanke had never previously terminated anyone's employment without going through a progressive disciplinary process.
25. The respondent's practice is to impose fines on doctors who get behind on their dictations. However, the complainant had not been fined because he was new to the job and the respondent understood he was working to get caught up.
26. Although Mr. Sandfort had no responsibility for human resource functions and was not typically involved in termination decisions, on March 20, 2009, Heidi Reigel, the clinic manager, sent Mr. Sandfort an e-mail detailing complaints about the complainant's performance. This e-mail was sent at Mr. Sandfort's request. Mr. Sandfort was also copied on the various documents related to the termination of the complainant's employment.
27. The complainant was discharged because he made a complaint about Dr. Yakovlev's medical practice.
Based upon the foregoing FINDINGS OF FACT the commission hereby makes the following:
1. That the complainant established by a preponderance of the evidence that the respondent terminated his employment because he engaged in protected activity, within the meaning of the Wisconsin Fair Employment Act.
Based upon the foregoing FINDINGS OF FACT and CONCLUSIONS OF LAW the commission issues the following:
1. Time within which respondent must comply with Order. The respondent shall comply with all of the terms of this Order within 30 days of the date on which this decision becomes final. This decision will become final if it is not timely appealed, or, if it is timely appealed, it will become final if it is affirmed by a reviewing court and the decision of that court is not timely appealed.
2. That the respondent shall cease and desist from discriminating against the complainant based upon his protected activity.
3. That the respondent shall offer the complainant reinstatement to a position substantially equivalent to the position he held prior to his discharge. This offer shall be in writing and shall be tendered by the respondent or an authorized agent. It shall provide reasonable notice of the time and place at which the complainant is to appear for work and shall allow the complainant a reasonable time to respond. Upon the complainant's acceptance of such position, the respondent shall afford him all seniority and benefits, if any, to which he would be entitled but for the respondent's unlawful discrimination, including sick leave and vacation credits.
4. That the respondent shall make the complainant whole for all losses in pay and benefits the complainant suffered by reason of its unlawful conduct by paying the complainant the amount he would have earned as an employee had his employment not been terminated from May 25, 2009, until such time as the complainant resumes employment with the respondent or would resume such employment but for his refusal of a valid offer of a substantially equivalent position. The back pay for the period shall be computed on a calendar quarterly basis with an offset for any interim earnings during each calendar quarter. Any unemployment compensation or welfare benefits received by the complainant during the above period shall not reduce the amount of back pay otherwise allowable, but shall be withheld by the respondent and paid to the Unemployment Insurance Reserve Fund or the applicable welfare agency. Additionally, the amount payable to the complainant after all statutory setoffs have been deducted shall be increased by interest at the rate of 12 percent simple. For each calendar quarter, interest on the net amount of back pay due (i.e., the amount of back pay due after set-off) shall be computed from the last day of each such calendar quarter to the day of payment. Pending any and all appeals from this Order, the total back pay will be the total of all such amounts. (1)
5. That the respondent shall pay to the complainant reasonable attorney's fees and costs associated with this matter, in the total amount of $66,591.00. A check in that amount shall be made payable jointly to the complainant and his attorney, Rebecca L. Salawdeh, and delivered to Ms. Salawdeh.
6. That within 30 days of the date on which this decision becomes final, the respondent shall file with the commission a Compliance Report detailing the specific actions it has taken to comply with this Order. The Compliance Report shall be prepared using the "Compliance Report" form which has been provided with this decision. The respondent shall submit a copy of the Compliance Report to the complainant at the same time that it is submitted to the commission. Within 10 days from the date the copy of the Compliance Report is submitted to the complainant, the complainant shall file with the commission and serve on the respondent a response to the Compliance Report.
Notwithstanding any other actions a respondent may take in compliance with this Order, a failure to timely submit the Compliance Report required by this paragraph is a separate and distinct violation of this Order. The statutes provide that every day during which an employer fails to observe and comply with any order of the commission shall constitute a separate and distinct violation of the order and that, for each such violation, the employer shall forfeit not less than $10 nor more than $100 for each offense. See Wis. Stat. § § 111.395, 103.005(11) and (12).
Dated and mailed October 31, 2013
siegeda_rrr . doc : 164 : 544 836.43
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
The issue presented in this case is whether the complainant was discharged for engaging in conduct that was protected under the Wisconsin Fair Employment Act. Specifically, the complainant alleged that he made a report under the Health Care Worker Protection Act (hereinafter "HCWPA") and was discharged in retaliation for doing so.
The HCWPA provides, in relevant part:
(2) REPORTING PROTECTED. (a) Any employee of a health care facility or of a health care provider who is aware of any information. . . that would lead a reasonable person to believe any of the following may report that information. . . 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.
Wis. Stat. § 146.997(2).
(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), . . .
Wis. Stat. § 146.997(3).
In its brief to the commission the respondent argues that the complainant did not engage in any conduct that was protected by the HCWPA. First, it maintains that the complainant was not complaining about an "existing" situation, but about procedures performed by a doctor who no longer works at the clinic with no ongoing threat to the patients involved, and that therefore his claim is not covered. Second, the respondent contends that the report is not covered because it was not made in good faith. Specifically, the respondent maintains that the complainant's concerns were unfounded, and based only on the complainant's suspicions. The respondent further points out that the complainant was motivated by an interest in protecting himself.
The respondent's arguments lack merit. The fact that the procedures about which the complainant was concerned were performed by a former employee does not place this matter outside of the coverage of the HCWPA. Indeed, where the evidence indicates that the procedures to which the complainant objected were performed on the complainant's current patients, some of whom were experiencing ongoing problems related to those procedures, it seems clear that his concerns involved an existing situation.
The argument that the complaint was not made in good faith is similarly unpersuasive. There is no reason to doubt that the complainant genuinely believed that appropriate standards of care had been violated and that Dr. Yakovlev had engaged in unethical conduct. The complainant's testimony on this point was credible, and the fact that he may have also been concerned about the potential for personal liability does not change this. Moreover, while the respondent asserts that the complainant's concerns were unfounded, there is some evidence in the record to suggest otherwise. Heidi Reigel, the manager of the pain clinic, expressed the opinion that Dr. Yakovlev was aggressive in performing procedures -- what she termed "a proceduralist" -- and, further, that she believed he was choosing to perform procedures based on how much money they would bring in rather than on the extent that they would help the patient. The complainant also testified, without rebuttal, that Dr. Yanke told him he was aware of Dr. Yakovlev's practices and was glad when Dr. Yakovlev decided to leave the respondent's clinic.
Under all the facts and circumstances, the commission is persuaded that the complainant's complaint was made in good faith and that it was covered under the HCWPA. The question to decide is whether the respondent was motivated by the fact that the complainant made a report under the HCWPA when it terminated his employment.
It is unlawful to terminate from employment an individual because he files a complaint or attempts to enforce a right under Wis. Stat. § 146.997, the HCWPA. Wis. Stat. § 111.322(2m)(a).
In finding that the complainant's complaint about Dr. Yakovlev was not a factor in the termination of his employment, the administrative law judge employed the following reasoning:
Siegel was unhappy at MC from the very beginning. Mr. Sanford's treatment of Siegel during the March 10, 2009 meeting certainly sped up the process but it was not the fact that Siegel complained about Dr. Yakovlev that led to the termination. Siegel wanted out and after being berated by Mr. Sandfort he just wanted out sooner. It was Siegel that brought up the severance idea shortly after the March 10, 2009 meeting. There is no reason to believe Siegel would have been terminated on March 24, 2009 had he not set in motion the negotiation of a severance package.
When Siegel turned down the severance package the relationship was already in a bad way and, with all the other problems, such as the inability to get along with staff and being so far behind in his dictation, termination seemed like a reasonable decision.
The commission disagrees with this analysis. Although the record indicates that the respondent was dissatisfied with some areas of the complainant's performance, there is no evidence to suggest that the respondent was contemplating discharging him prior to the meeting with Mr. Sandfort, a point the administrative law judge expressly noted in his decision. The complainant was a new employee. He had never been disciplined or warned about his performance, and, to the contrary, the respondent was actively working with him to try to resolve problems and help him become a productive employee. Dr. Yanke and Ms. Reigel were meeting with the complainant weekly, and in early March the respondent enrolled the complainant in Cattails College, an orientation program run by the respondent to help integrate new doctors into the respondent's culture, a step that it would not have taken if it was contemplating ending the employment relationship. With respect to the "chronic problem with documentation and inadequate completion of medical records" mentioned by Dr. Yanke at the hearing, the evidence reveals that the respondent's general practice was to impose fines on doctors who were behind on their dictation, but that the respondent had not fined the complainant because it considered it too soon in his employment and it wanted to give him a chance to improve.
The same performance problems that were not sufficient to warrant discharge, or even discipline, prior to the meeting with Mr. Sandfort did not suddenly become egregious at that point. Rather, the commission believes that the respondent's stated reason for discharging the complainant -- his poor performance -- was really a pretext to terminate his employment based upon his protected conduct. It is undisputed that Mr. Sandfort reacted angrily when the complainant informed him of his concerns about Dr. Yakovlev's medical practice, and the commission is persuaded that it was his complaint about Dr. Yakovlev, and not the complainant's work performance, that motivated the respondent to terminate his employment.
In arriving at this conclusion, the commission has considered whether the complainant's own dissatisfaction with the employment relationship might have provided the respondent with a legitimate reason to terminate his employment. Although the respondent has not asserted that it discharged the complainant because of his unhappiness with the job, the administrative law judge apparently considered this to be a factor justifying the complainant's discharge. The commission disagrees. The complainant had expressed unhappiness with the job in the past. However, he had not actually chosen to resign, nor had the respondent taken any steps to terminate his employment, even though it was aware of his dissatisfaction. To the contrary, the respondent was committed to working with the complainant in hopes of making the employment relationship successful, up until the meeting with Mr. Sandfort. It should also be noted that the complainant's statement on March 10 to the effect that he no longer wanted to work for the respondent was directly related to Mr. Sandfort's adverse reaction to his protected conduct. As the administrative law judge stated in his memorandum opinion, the complainant may have been considering quitting prior to the meeting with Mr. Sandfort, but Mr. Sandfort's behavior at that meeting led him to want out sooner. The respondent may not rely on the complainant's frustration with his employment, much of which was directly related to the respondent's negative reaction to his protected conduct, as a justification to discharge him.
For the reasons above, the commission concludes that the complainant was discharged because of his protected conduct, and that this constituted a violation of the Wisconsin Fair Employment Act.
Attorney's Fees
The complainant's attorney, Rebecca Salawdeh, has requested that the commission award a total of $69,150.00 in fees and $1,963.50 in costs related to this matter. The fee request represents 230.5 hours of work performed between March of 2009 and October of 2013, at an hourly rate of $300.
In support of her requested hourly rate, the complainant's attorney has submitted an affidavit in which she explains her qualifications and experience and states, "When clients are able to pay, I charge clients $300.00 an hour." The complainant's attorney also submits affidavits from two other attorneys in the locality who concur that the requested hourly rate is in line with fees charged in the community for similar services for lawyers of comparable skill, experience and reputation. Ms. Salawdeh additionally points out that, in Stelloh v. Wauwatosa Savings Bank, ERD Case No. CR200700340 (LIRC June 19, 2012), and in a companion case that was filed in circuit court, the commission and the court both awarded her fees at the rate of $275 an hour. She further notes that, more recently, the commission awarded her fees of $300 an hour. Bell v. Likness Home Care, ERD Case No. CR201104206 (LIRC Aug. 12, 2013).
The respondent objects to the request for attorney fees payable at $300 an hour and states that, for work performed in 2009 and 2010, the appropriate hourly rate for the complainant's attorney is $250. In support of this argument, the respondent submits a copy of a fee affidavit purportedly prepared by Ms. Salawdeh in conjunction with the Stelloh case, dated February 2, 2009, in which Ms. Salawdeh stated, "When clients are able to pay, I have a sliding fee scale of $200 to $275 an hour, depending on the client's ability to pay and the complexity of the case." The respondent maintains that, since the $275 an hour rate was meant to cover "particularly complex matters," the hourly rate for the instant matter, which was not complex, should be $250.
The commission agrees with the respondent that the complainant's attorney has failed to establish that her hourly rate was $300 at the time her representation of the complainant began in March of 2009. Although Ms. Salawdeh now asserts that she charges $300 an hour, she has not explained what fees she charged her clients in 2009 and 2010, the period of time with which the respondent takes issue. However, while it appears that Ms. Salawdeh was charging her clients something less than $300 during the time period at issue, the commission is unpersuaded that $250 an hour, the amount proposed by the respondent, represents the most reasonable hourly fee to be awarded in this matter. Given that the commission has already determined that $275 was a reasonable hourly rate for Ms. Salawdeh in a case involving legal services performed beginning in 2008 or earlier, Stelloh v. Wauwatosa Savings Bank, ERD Case No. CR200700340 (LIRC June 19, 2012), (2) the commission sees no reason to award anything less in the instant case. The commission therefore, finds that $275 is the appropriate hourly rate for Ms. Salawdeh's professional services in 2009 and 2010, and that $300 is the appropriate hourly rate for her work performed thereafter.
The respondent has not objected to the number of hours for which the complainant's attorney seeks compensation, and a review of the complainant's attorney fee statement reveals no time expenditures that appear to be inappropriate or excessive on their face. In the absence of any compelling reason to reduce the number of hours for which the complainant's attorney has requested reimbursement, the commission declines to order any reduction and finds that the complainant's attorney is entitled to be compensated for 230.5 hours of work.
Ms. Salawdeh's fee petition breaks down to 180.9 hours of work performed in the years 2009 and 2010, and 49.6 hours of work performed in the years 2011 through 2013. Applying hourly rates of $275 for 2009 and 2010, and $300 for 2011 through 2013, the reasonable attorney's fees for the complainant's attorney amount to a total of $64,627.50.3(3) In addition, the complainant's attorney has incurred $1,963.50 in costs, about which no objection has been raised. Those costs, almost all of which are related to pre-hearing depositions, appear to be reasonable. The commission, therefore, orders that the respondent reimburse the complainant and his attorney for the reasonable costs and attorney's fees incurred in this matter, in the total amount of $66,591.00.
NOTE: Although the administrative law judge who held the hearing has retired, the commission nonetheless was able to contact him in order to obtain his impressions of the demeanor of the witnesses. The administrative law judge had no specific demeanor impressions to impart and it is clear that his decision was not premised on the demeanor of the witnesses but on an analysis of mostly undisputed facts.
cc:
Attorney Rebecca Salawdeh
Attorney Fred Gants
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