543 RETALIATION FOR REPORTS RE: RESIDENTIAL CARE FACILITIES
(Sec. 50.07(3), Stats)

[Ed. note: Pursuant to sec. 50.07(3), Stats., it is unlawful to retaliate against employees for making a report concerning a residential care facility to any state official or the long-term care ombudsman. Any employee who is discharged or otherwise retaliated or discriminated against in violation of this provision may file a complaint with the Equal Rights Division under sec. 106.54(5), Stats. Such complaints are processed in the same manner that employment discrimination complaints are processed under the Wisconsin Fair Employment Act. Decisions of the Equal Rights Division under this law are appealable to LIRC.]

The Complainant was employed as a day program aide at the Respondent, which is a non-profit organization that operates community-based residential facilities and adult family homes for individuals with severe developmental and physical disabilities. The Complainant established a prima facie case of retaliation under sec. 50.07(1)(e), Stats. She engaged in protected activity by contacting a state ombudsman and leaving a message that she was calling regarding the non-care of a resident at her group home. Four days later, the Respondent terminated the Complainant’s employment. A causal connection between the Complainant’s protected activity and her discharge can be inferred because of the close proximity in time between her protected activity and her discharge. The reasons given by the Respondent for discharging the Complainant were found to be unworthy of credence. The Respondent contended that it defied logic to suggest that the Respondent would make ombudsman contact information readily available to employees and then fire people who use it. However, the Respondent is required by administrative rule to post ombudsman contact information. (HFS 83.07(15), Wis. Admin. Code). Further, although the ombudsman could not impose a fine or remove the Respondent’s license, the Respondent did have reason to fear the ombudsman because the ombudsman had authority to investigate complaints concerning improper conditions or treatment of aged or disabled persons at community-based residential facilities, and because the ombudsman refers suspected abuse or neglect directly to the state licensing specialist who could impose a fine or remove the Respondent’s license. The evidence established that the only reason the Respondent discharged the Complainant was because she had contacted an ombudsman. The non-discriminatory reasons proffered by the Respondent for the Complainant’s discharge were not the true reasons for the discharge but were a pretext for retaliation. Schultz v. Community Living Arrangements (LIRC, 08/28/03).

A complaint was dismissed for failure to state a claim under either sec. 16.009(5), 46.90(4) or 50.07(30), Wis. Stats. Those statute sections are contained within statutory provisions relating to long-term care facilities, to elder abuse and other care and service residential facilities. They afford persons protection against being discharged or otherwise retaliated or discriminated against: 1) for “contacting, providing information to or otherwise cooperating with any representative of the Board (on aging and long-term care),” 2) for “reporting in good faith to the county agency or to any State official, including any representative of the Office of the Long-Term Care Ombudsman. . .that he or she believes that abuse, managerial abuse or neglect has occurred. . .” and 3) for “contacting or providing information to any State official, including any representative of the Office of the Long-Term Care Ombudsman. . .or for initiating, participating in, or testifying in an action for any remedy authorized under (subchapter 1 of ch. 50, Wis. Stats.).” The common thread through all of these statutory provisions is that the protective report must be made before the alleged discriminatory or retaliatory conduct takes place in order for the protections of the statutes to be in effect. In this case, the Complainant did not allege that he contacted, provided information to or cooperated with any representative of the Board on Long-Term Care, that he reported suspected abuse to the county agency or any State official, or that he had initiated, participated in or testified in an action for any remedy under ch. 50 before the discriminatory or retaliatory conduct complained of had occurred. DeGroot v. Parkview Adult Family Home (LIRC, 07/17/00).

Section 50.07(2), Stats., punishes employers for the wrongful termination of reporting employees with up to six months in jail. This provision does not bar an employee from filing an individual civil action for wrongful discharge. Hausmann v. St. Croix Care Ctr., 214 Wis. 2d 655, 571 N.W.2d 393 (1997).