Sheila Easley Applicant
YMCA Metro Milwaukee Employer
Greenwich Ins. Co. Insurer
No. 2017-018543
Wisconsin Workers Compensation
State of Wisconsin Labor and Industry Review Commission
November 13, 2020
Atty.
Douglas E. Selky
WORKER'S
COMPENSATION DECISION
1
Michael H. Gillick, Chairperson.
Order
The
commission affirms the decision of the administrative law
judge. Accordingly, within thirty (30) days of the date of
this decision, if it has not already done so, the respondent
insurer shall pay to the applicant the sum of five thousand,
five hundred thirty-six dollars and twenty-six cents
($5,536.26), for unpaid temporary total disability,
out-of-pocket expenses, and medical expenses.
[2]
By the
Commission:
David
B. Falstad, Commissioner, Georgia E. Maxwell, Commissioner.
Procedural
Posture
The
applicant filed a hearing application in August of 2017
claiming a mental health injury due to constant harassment
from her boss at work. An administrative law judge for the
Department of Administration, Division of Hearings and
Appeals, Office of Worker's Compensation Hearings
(Division), heard the matter on June 18, 2019, and December
4, 2019, and issued a decision dated April 10, 2020, finding
the applicant sustained a work-related mental health injury,
but assessing 0% permanent partial disability, and finding
that the employer did not unreasonably refuse to rehire the
applicant. The administrative law judge ordered the
respondent to pay for the applicant's unpaid temporary
total disability benefits, out-of-pocket expenses, and
medical expenses. The applicant filed a timely petition for
review.
Prior
to the hearing, the employer and insurer (collectively, the
respondent) conceded jurisdictional facts and an average
weekly wage of $707.60. The issues are the nature and extent
of the applicant's disability resulting from the work
injury, and whether the employer unreasonably terminated or
refused to rehire the applicant. The commission has
considered the petition and the positions of the parties, and
has independently reviewed the evidence. Based on its de
novo review, the commission affirms the decision of the
administrative law judge and makes the following:
Findings
of Fact and Conclusions of Law
As
supplemented by the commission's memorandum
opinion,
3 the commission makes the same findings
of fact and conclusions of law as stated in the
administrative law judge's decision and incorporates them
by reference into the commission's decision.
Memorandum
Opinion
The
applicant, who was born in 1971, alleged that she sustained a
mental health injury due to harassment by her supervisor. The
administrative law judge found that the applicant sustained a
mental health injury due to her supervisor's harassment,
but he found the applicant sustained 0% permanent partial
disability as a result of the injury. The administrative law
judge ordered the respondent to pay for the unpaid temporary
total disability benefits, out-of-pocket expenses, and
medical expenses. The employer and insurer did not appeal the
finding that the applicant sustained the work-related mental
health injury, and the insurer paid the unpaid benefits and
expenses. The applicant appealed the finding of 0% permanent
partial disability and that the employer unreasonably
terminated or refused to rehire her. The insurer argues that
the evidence shows that the applicant sustained no permanent
disability as a result of the injury. The employer argues
separately that it did not unreasonably refuse to rehire the
applicant.
The
Applicant's Work-Related Mental Health Injury and Medical
Treatment
The
applicant began working for the employer, a YMCA, in 1998 as
a senior secretary. In 2002, she moved to the employer's
Parklawn Branch YMCA location
4 as an Administrative
Director. She indicated that after she had been in this
position for about a year, she noticed some discrepancies
with the cash deposits. She noted that the Executive Director
at the Parklawn Branch, Herb Hayden, had used cash deposits
for personal expenses! and she noted discrepancies with other
financial issues involving Mr. Hayden. The applicant
discussed these issues with her mentor and with someone in
payroll, which resulted in an investigation of Mr. Hayden.
Ultimately, Mr. Hayden ended up resigning his position. After
Mr. Hayden left, Harvey "Jock" Johnson became the
applicant's supervisor. According to the applicant, at
her first meeting with Jock Johnson, he told her "First
of all, let me tell you something. You better not ever think
about going downtown and running and telling nothing on me.
Do you understand me?"[
5] The applicant ran out of his office crying
and went to the bathroom. After this incident, the applicant
indicated that Jock Johnson would yell at her, call her a
little girl, and shoot or throw work at her that he wanted
her to do. After about 2½ months, the applicant
contacted Laura Jazwiecki in human resources and reported the
harassment. Bob Heger, the Vice-President of Operations
responsible for the Parklawn Branch, called the applicant and
told her that they would not tolerate bullying, after which
the applicant filed a formal written complaint. The complaint
is dated November 27, 2005:
I would like to file a formal complaint of harassment against
Harvey "Jock" Johnson (Group VP). Jock has been
harassing me continuously for the past 2½ months in
the form of yelling at me, threatening me, attacking my
character with false accusations and endangering my safety of
allowing a former employee of whom I was a whistle blower to
be on the premises after he resigned. I have informed Jock
that I feel unsafe with this former employee being on the
premises! to this date it has not been resolved. Due to this
harassment I have been under a lot of stress.[6]
The
applicant emailed this to Laura Jazwiecki, who sent it on to
Franciene Gill, the Vice-President of Human Resources, and to
Bob Heger. The employer responded to the applicant's
harassment complaint by holding a meeting to address the
issue on November 29, 2006. The parties dispute who was
present at the meeting and how the meeting unfolded, but they
agree that next steps were discussed and that Jock Johnson
and the applicant were to make a focused effort to
communicate openly, honestly, and at a professional level. As
a result of its investigation, the employer determined that
the applicant's complaints did not rise to the level of
harassment, but it thought that the problem had to do with
leadership and communication styles.
7
After
the meeting, the applicant indicated that Jock Johnson was
fine for about a week. Then he started calling her a
"bitch" because she told on him. She asked him why
he called her a "bitch" and said that she was going
to tell her husband on him. Then Jock Johnson came up to her
and said, "what is your husband going to do, what is
your husband going to do?"
8 The applicant again began
to cry and ran to the bathroom. The applicant then went to
talk to Laura Jazwiecki again, but Jock Johnson came into the
office and told her, "Didn't I tell you I know your
every move, I have people watching you. I know when
you're going downtown. I know everything." He also
said that since she wanted to run her mouth off, he was going
to give her work to do. The applicant indicated that after
this, Jock Johnson changed her work times, gave her more work
to do, and demanded that she get it done in brief time
periods. When he asked her to do cost reports for a grant
that she thought were the responsibility of another employee
in that grant program, she questioned him and indicated that
the other employee was responsible for those cost reports.
According to the applicant, Jock Johnson continued to
"shoot" papers at her and point his finger at her
and yell at her to "Get over here" and "Come
here right now."
9 She felt that he was constantly
threatening her. He asked if she thought they would really
get rid of him after 28 years, and she told him she did not
want them to get rid of him; she just wanted him to stop
yelling at her and let her do her work. Jock Johnson also
allowed Mr. Hayden, the person the applicant had reported for
financial discrepancies, to come into the office after he
resigned because he and Jock Johnson were
friends.
10 When the applicant reported this,
the applicant claimed that Jock Johnson came to her and said,
"What did I tell you?"[
11]
On
April 20, 2006, the applicant sent an email or note to
Franciene Gill and Bob Heger, copied to Jock Johnson, in
which she explained the situation with the cost reports and
why she thought...
