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

MARY HAGER, Complainant

GUNDERSON LUTHERAN, f/k/a
LUTHERAN HOSPITAL-LACROSSE, INC., Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199500687, EEOC Case No. 26G951094

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

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

Delete Paragraphs 26 through 28 of the Findings of Fact and substitute therefor the following:

26. When she informed the Respondent of her decision to terminate her employment, Complainant did not state that her decision was based on any alleged discriminatory denial of advancement opportunities or on the requirement that she submit to a fitness for duty examination with Dr. Jackson. The reasons given by Complainant to Respondent for her decision to terminate her employment involved her dissatisfaction with practices and policies of the hospital, including her concern that hospital practices were endangering patients and her unwillingness to risk liability for those practices, and these were determining reasons for her decision to terminate her employment.

27. Respondent did not deny or limit Complainant's opportunities for promotion during the meeting of October 4, 1994 or at any other time, and no actions by Respondent with respect to Complainant's opportunities for promotion were motivated or affected by a belief or perception on Respondent's part that Complainant was handicapped.

28. Respondent did not deny or limit Complainant's opportunities for membership on hospital committees, or any other term or condition of employment, during the meeting of October 4, 1994 or at any other time, and no actions by Respondent with respect to Complainant's opportunities for membership on hospital committees or other terms and conditions of employment were motivated or affected by a belief or perception on Respondent's part that Complainant was handicapped.

29. Complainant did not terminate her employment with Respondent in 1994 because of any action taken by Respondent which was motivated or affected by a belief or perception on Respondent's part that Complainant was handicapped.

DECISION

The decision of the administrative law judge (copy attached), as modified, is affirmed.

Dated and mailed: March 10, 1998
hagerma.rmd : 110 :

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

This case concerns Mary Hager's allegations that Gunderson Lutheran (formerly known as Lutheran Hospital - LaCrosse, Inc.) discriminated against her because of perceived handicap (mental illness) in respect to denial of opportunity for promotion, denial of opportunity to serve on various hospital committees, and imposition of a requirement that she submit to a psychiatric examination as a condition of continued employment. Hager also asserts that the imposition of a requirement that she submit to a psychiatric examination as a condition of continued employment was the cause of her decision to resign her employment and that it should be treated as a (discriminatory) constructive discharge. Gunderson Lutheran asserts that it did not deny Hager the opportunity for promotion or to serve on various hospital committees, that it had reasonable grounds to impose the requirement that Hager submit to a psychiatric examination, and that the requirement that Hager submit to a psychiatric examination did not constitute a constructive discharge. (1) The Administrative Law Judge agreed with Gunderson Lutheran.

Based on a careful review of the record, the commission is satisfied that the Administrative Law Judge's Findings of Fact are an accurate summary of the relevant facts of this case. Indeed, it was conceded in the Complainant's own brief, that "[i]n his Findings of Fact, ALJ Lawent does provide a good summary of the most relevant evidence concerning the historical background facts, as presented at the hearing in this matter, and concerning the pertinent circumstances which gave rise to the issues presented by this case". (Complainant's Brief, p. 2).

In particular, there is ample evidence supporting the findings in paragraph 15 of the Findings of Fact, which relate to the meeting held on October 4, 1994 at which it is alleged the discriminatory denial of promotional opportunities and opportunities to be on committees took place. The commission finds most credible the evidence offered by the Respondent in respect to that meeting. The commission is therefore persuaded, that there was no denial of promotional opportunities, and no denial of opportunities to be on committees, at all.

The commission agrees with the Administrative Law Judge's analysis of the claim of constructive discharge. However, it also believes that in addition to the grounds relied on by the Administrative Law Judge, rejection of the constructive discharge claim was appropriate because the Complainant did not persuasively establish that she resigned her position for the reasons which she later asserted to constitute a discriminatory constructive discharge.

The question of whether certain conduct was severe enough to warrant a finding of constructive discharge is reached only when there is a finding that the conduct caused the quitting; and persons alleging constructive discharge must show that action by the employer caused their departure. Riley v. American Family Mutual Ins. (LIRC, 03/30/92).

The Administrative Law Judge's decision here does not actually contain a finding of fact as to why Hager quit her job.

The theory which Hager advances in her brief, is that she quit because she felt her career was over due to the alleged denial of advancement opportunities (promotion and committee membership) and because she could not bring herself to submit to another psychiatric examination on her fitness for duty. (Complainant's Brief, p. 10). While her Brief suggests that this theory is based on Hager's testimony at hearing, Hager's testimony at hearing as to why she resigned is unclear at best. The first time she was asked at hearing why she had resigned, her response was not altogether clear:

"Because I didn't want any more appointments where my supervisors run me, and where or go to a counselor and tell bizarre stories about me that I am not aware of. I can't defend myself against it or know about it. I just get these strange reactions from people that I never got before and the thing is Terri had said that they, very practically, they want, they want a worse diagnosis. They're not happy with Zimmerman's. I thought, no. They're just layering. And Terri was so upset she said this is layered and layered and layered and layered and you have no credibility and I--"

(T. 46-47). At this point, her attorney cut off her answer to ask her when she sent her resignation letter. During the remainder of her direct examination, he did not again ask her why she had resigned, nor did she offer any testimony on that issue. However, in her cross-examination, she stated that she resigned in part because of concern that hospital practices were endangering patients, (T. 123), and she also indicated that her resignation was related to her unwillingness to risk liability for those practices (T. 122, 145).

Perhaps more important than the fact that she did not really assert the theory argued in her brief when she testified, there is reason to question whether this was in fact her reason when she made and communicated her decision to resign.

At the time that it occurred, Hager described the reasons for her decision to resign in a November 21, 1994 letter to Mr. Jack Schwem, President of Respondent (Ex. 3), and in a voice mail message to Ellen Holt of November 25, 1994 (Ex. 4). In those communications, there is no claim that she is resigning in whole or in part because of the requirement that she submit to a psychiatric examination to determine her fitness to return to duty; indeed, that matter is not even mentioned. Thus, in her letter to Schwem, Hager instead complains about unidentified violations of policies and statutes at the hospital, and about the fact that the hospital is allegedly "playing a liability cover-up game with [her] while patient's lives are increasingly endangered". In her voice mail to Holt, she again complains about "liability games", about a lack of safety professionally and for patients in the work environment, about endangering patients, about a lack of accountability by some workers, and about unspecified "unfounded allegations". She also mentions allegedly being told not to go to outside agencies, and states that "the final straw" has to do with demands by her supervisors to "break policies and break the law".

Hager explained at hearing that the "liability games" comments she made at the time of her decision to resign related to deaths and poor nursing practices at the hospital, (T. 92), and that the lack of safety professionally and for patients in the work environment related to PIC catheter complications that were increasing. (T. 122). This is more consistent with the other testimony she gave concerning her reasons for quitting during her cross-examination at hearing, than it is with the theory advanced in her Brief.

In the commission's view, the claim of constructive discharge is undercut by the fact that Hager did not contemporaneously claim that the requirement that she submit to a psychiatric examination as a condition of returning to work was a reason for her decision to resign and did not even mention it in those contemporaneous communications, as well as by the fact that she did not even testify to that effect at the hearing.

Conclusion -- For all of these reasons, the commission affirms the decision of the Administrative Law Judge that there was no discrimination because of handicap in regard to any action taken by Respondent prior to Complainant's voluntary termination of her employment, or in regard to that voluntary termination. The commission had no disagreement with the material findings of fact made by the Administrative Law Judge, and it has modified them only to add to and clarify them. (2)

NOTE: Hager had been represented in this matter by Attorney Gard Strother since October, 1996. After the Brief and Reply Brief on behalf of Hager were filed by Attorney Strother, the commission received a letter directly from Hager asking the commission to remove Attorney Strother and his firm as her attorney of record and to send all correspondence to Hager. The commission has not received any correspondence from Attorney Strother seeking permission to withdraw as Hager's attorney. In view of the ambiguity of the situation, a copy of this decision is being sent to both Hager and to Attorney Strother.

cc: Mary Hager
     Attorney Gard Strother
     Attorney Kevin J. Kinney

Appealed to Circuit Court.  Affirmed August 10, 1998.

[ Search ER Decisions ] - - [ ER Decision Digest ] - - [ ER Legal Resources ] - - [ LIRC Home Page ]

Footnotes:

(1)( Back ) Gunderson Lutheran also argues in the alternative, that even if discriminatory constructive discharge is found, conduct which Hager engaged in after her resignation should be deemed to bar any remedy of reinstatement. Because it affirms the decision of the Administrative Law Judge, the commission finds it unnecessary to address this argument.

(2)( Back ) This case had a lengthy and complex procedural history. That procedural history was in part related to the issuance of an initial determination which relied on a worker's compensation exclusivity theory which is no longer viable under Byers v. LIRC, 200 Wis. 2d 388, __ N.W. 2d __ (1997). It was also related in part to the fact that Complainant actually filed or attempted to file eleven separate complaints or amendments to her complaint, not all of which were accepted. In addition, there was a discovery issue involving the Complainant's failure to appear at a deposition. The commission would note that no claim of error was raised by Complainant's counsel with respect to any of these matters. In any event, the commission's review has satisfied it that there was no error in the handling of any of those preliminary matters which requires a different result here, and that there were no additional issues preserved for hearing which have not been adequately addressed by the hearing and decisions issued.