BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
BROWN COUNTY (HUMAN SERVICES)
PROFESSIONAL EMPLOYEES ASSOCIATION
BROWN COUNTY, HUMAN SERVICES
Mr. Frederick J. Mohr, Attorney at Law, 414 East Walnut
Street, Suite 261, P. O.
Box 1015, Green Bay, WI 54305, on behalf of the Association.
Crivello, Carlson, Mentkowski & Steeves, S. C., by Attorney Anna M.
Pepelnjak, 710 North Plankinton Avenue, Suite 500, Milwaukee, WI 53203, on
behalf of the County.
According to the terms of the 1999-2001 collective bargaining
unit between Brown County (County) and Brown County Human Services
Professional Employees (Union or Association), the parties
requested that the Wisconsin Employment Relations Commission
designate a member of its staff to hear and resolve a dispute
between them regarding the County's refusal to return Grievant
David Fazer to his position in the Community Integration Program
(CIP) following a leave of absence. The Commission designated
Sharon A. Gallagher to hear and resolve the dispute. Hearing was
held on October 5, 2000, at Green Bay, Wisconsin. A stenographic
transcript of the proceedings was made and received by October 19,
2000. The parties filed their initial briefs directly with each
other and then filed reply briefs by December 26, 2000, whereupon
the record was closed.
To maximize the ability of the parties we serve to utilize the
Internet and computer software to research decisions and
arbitration awards issued by the Commission and its staff, footnote
text is found in the body of this decision.
The parties stipulated that the following issues should
determined in this case:
Did the County violate Article 19, Long Term Disability, by
refusing to return the Grievant to his former position in the
Community Integration Program? If so, what is the appropriate
The Employer agrees not to discharge or
discipline against any
member of the Association because of Association activities and
agrees to reinstate any such member of the Association in
accordance with the terms for settlement of any dispute between the
Employer and the Association, as hereinafter provided. The
Employer agrees to grant the necessary time off without pay to an
employee who has been delegated to perform a service for the
Neither the Employer nor the Association
shall discriminate in
any manner against any employee because of race, creed, color,
national origin, sex, age, or handicap. The Employer and the
Association agree to comply in all respects with the provisions of
the Age Discrimination in Employment Act of 1967.
ARTICLE 3. MANAGEMENT
Through its management, the Employer
retains the sole and
exclusive right to manage its business, including but not limited
the right to direct its work force, to hire, assign, suspend,
promote, discharge or discipline for just cause, to maintain
discipline and efficiency of its employees, to determine the extent
to which the Employer's operations shall be conducted, the size and
composition of the work force, the number of offices and locations
of such offices, equipment requirements and location of such
equipment and the right to change methods, equipment, systems, or
processes, or to use new equipment, products, methods or facilities
and to reduce the work force if, in the Employer's sole judgment,
the new equipment, methods, systems or facilities require fewer
personnel. In no event shall the exercise of the above rights and
responsibilities of the Employer violate the terms and conditions
of this Agreement or restrict any rights of the employee under
Wisconsin Statute 111.70. Management shall be notified through the
employee's supervisor before that employee conducts any Association
activity during working hours, and the occupation of such offices.
ARTICLE 8. DISCIPLINE
No employee shall be reprimanded,
suspended or discharged
except for just cause. The following shall be just cause for
disciplinary action ranging from a warning to immediate discharge
depending upon the seriousness of the offense in the judgment of
Dishonesty or falsification of
Intemperate use of alcoholic
beverages or drugs which affect job
Unauthorized use or abuse of
County equipment or property.
Theft or destruction of County
equipment or property.
Work stoppages such as strikes or
Insubordination or refusal to
comply with the proper order of an
Unlawful conduct defined as a
violation of or refusal to comply
with pertinent laws and regulations when such conduct impairs
the efficiency of the County service.
Habitual tardiness, unauthorized or
excessive absence or abuse of
Use of official position or authority
for personal or political
profit or advantage.
Disregard or repeated violations of
safety rules and regulations.
Failure to adequately perform
assigned job duties.
Failure to follow duly established
work rules, policies and
Professional unethical conduct or
Statutory client abuse or neglect.
Breach of client confidentiality
pursuant to guidelines.
Other circumstances may warrant
disciplinary action and will be
treated on a case-by-case basis.
SUSPENSION: Suspension is
defined as the temporary removal without
pay of an employee from his designated position. The Employer
may, for disciplinary reasons, suspend an employee. Any
employee who is suspended, except probationary employees,
shall be given written notice of the reasons for the action,
and a copy of such notice shall be made a part of the
employee's personal history record, and a copy shall be sent
to the Association.
DISMISSAL: No employee shall
be discharged except for just cause.
Any employee who is dismissed, except probationary, shall be
given a written notice of the reasons for the action and a
copy of the notice shall be made
part of the employee's personal history record and a copy sent
to the Association. Any employee who has been discharged may
appeal such action through the grievance procedure and shall
initiate grievance action by immediate recourse to Step 3
within five (5) calendar days of notice of discharge.
DISCIPLINARY PROCEDURE: The progression of
normally is 1) oral, 2) written, 3) suspension, 4) dismissal.
However, this should not be interpreted that this sequence is
necessary in all cases, as the type of discipline will depend
on the severity of the offense. In all such cases, the
employee shall have the right to recourse to the grievance
. . .
ARTICLE 19. LONG TERM
Long-term disability--Brown County's Long
Term Disability (LTD)
Plan provides for eligible employees, employees who work 10 hours
or more per week, to receive two-thirds pay after 180 days of
disability to age 65 with offsets for Social Security disability
benefits, Wisconsin Retirement System disability benefits, and
Worker's Compensation benefits.
LTD begins after 180 days of
disability; however, the offsetting
benefits must be requested by the disabled employee within 30
days of beginning LTD.
The Wisconsin Retirement System
requires that the Employer certify
that all earnings, including service and pay for vacation and
sick leave, have been paid and that the employee is on leave-of-absence and not expected to
return to work, or has been
terminated because of a disability. Therefore, once it has
been terminated on the basis of a report from the employee's
doctor that an employee is not reasonably expected to return
to work, the employee will be terminated from the payroll and
paid all appropriate accrued benefits. If the employee is
expected to be able to return to work, the employee will be
granted a leave of absence up to two years but not to exceed
his/her length of service with the County.
When the employee is able to return to work after being
on LTD, the
employee will be reinstated to an available position for which
s/he is qualified. Such determination will be made by the
employer on a case-by-case basis. While on LTD, the employee
will continue to accrue seniority
for job posting purposes only. Seniority for other purposes
will be frozen at the beginning of the LTD leave and shall
begin accruing upon the employee's return to work.
ARTICLE 27. JOB POSTING
Whenever any vacancy occurs due to a
new position, or whatever reason, and in the judgment of the
Employer the need to fill such vacancy continues to exist, the job
vacancy shall be posted for five (5) working days. In the event
the Employer determines not to fill any job vacancy, the Employer
agrees to post a notice of discontinuance for a period of (5)
working days. The job requirements and qualifications shall be a
part of the posting and sufficient space provided for interested
parties to sign said posting. Probationary employees shall not be
eligible to sign job postings.
Employees desiring such posted jobs shall
sign posted notice.
Employees older in seniority shall have preference on all jobs,
provided that the employee meets the qualifications required for
the job. Employees who receive a posted job shall demonstrate
their ability to perform the job during a thirty (30) work day
If said employee is deemed qualified by the
shall be assigned to fill the vacancy and he/she shall receive the
classification rate of pay as in Schedule A or B. However, the
classification rate will be paid retroactively after the trial
period. Should such employee not qualify within the aforementioned
thirty (30) work day trial period, he/she shall be reassigned to
his/her former position without loss of seniority. In the event
the employee does not desire to retain the posted position, he/she
will have ten (10) working days from the starting date on the new
position to return to his/her former position. In these events,
the applicant next in line of seniority shall be given preference
pursuant to the above procedure until the vacancy is filed. If
there is any difference of opinion as to the qualifications of an
employee, the employee may utilize the grievance procedure.
The Employer reserves the right to make
assignments to fill any vacancy until such time as said vacancy is
filled pursuant to the procedures outlines herein. Employees who
have successfully received a job through job posting are not
eligible to sign another job posting for twelve (12) months.
In November, 1992, David Fazer was hired as a permanent part-time employee at the
Brown County Shelter Care facility. The
Shelter Care is a facility, which includes living
accommodations on an around-the-clock basis for troubled juveniles
as well as some limited office space and one meeting or conference
room for the staff. While Fazer was employed at the Shelter Care
he was a direct care worker in the male wing of the Shelter Care,
providing care and assistance to troubled male juveniles. The
facility has two wings, one which can house eight girls in private
rooms (all of which are locked from the outside) and a separate
wing where eight boys can be housed in private rooms (also each
locked from the outside). The boys' wing has a separate bathroom
facility and the girls' wing has its own separate bathroom
facility. The position that Fazer occupied beginning November,
1992 at Shelter Care, was not a social work position.
In approximately 1994, Fazer took an offered LTE social work
position in the Access Unit of Brown County. That unit provides
assessment and referrals to a variety of clients including
developmentally disabled clients of the County. On June 15, 1995,
Fazer was offered and accepted a full-time social work position in
the Community Integration Program (CIP) unit as a case manager. In
this position, Fazer essentially brokered services for his clients
who were developmentally disabled. No direct care was involved in
this position. From approximately the time of his hire until he
left the CIP in 1998, Fazer's supervisor was John Cornette.
On September 30, 1997, Cornette gave Fazer a memo regarding
areas of Fazer's work performance that needed improvement. That
memo read in relevant part as follows:
. . .
Per your request, the following are work
which I feel you need to address. These are not to be interpreted
as Unit case manager policies/expectations relative to work
when working directly/indirectly with
When you are meeting with either
administrative or direct care
staff of any vendor (or related members of a client's family), you
are to conduct your business in a manner which is objective and
specifically addressing the issues at hand. If there are emotional
issues, innuendoes, or allegations brought into such discussions,
you document the information if you feel it is having a negative
effect on the provision of services to your client. If you feel
these are serious enough to warrant further review/attention, you
are to discuss the matter(s) with me prior to furthering any other
discussions/actions related to these matters.
You are not to have ancillary discussions
with other staff of
vendor agencies to gain support for your position on any issue
unless you receive approval from me to pursue the matter(s).
Financial inquiries into client matters with
If you have concerns about a client's
financial matters such as
usage of unearned or earned income, you shall discuss the subject
only with administrative fiscal personnel of the vendor agency.
You will not seek additional information from program staff of
agencies unless you first request permission to do so from me. If
you contact fiscal administrative staff and continue to have issues
regarding your client, you will then discuss the matter with me and
I will pursue the matter for you.
Your role as a case manager in the area of
advocacy is to
protect a client from potential physical/emotional harm; assure
that his/her rights under Chapter 51.61, the Medicaid waiver
program, or the rights under various residential services such as
While fulfilling this responsibility you shall
direct and indirect contacts, with all parties involved, in a
professional manner which is void of emotional overreaction to
possible disagreements or confrontative behavior of those you are
working with to resolve a problem.
It is my role to interpret whether you may
or may not have
violated this standard. If you so choose, I will assist you in
reviewing any incident in which there are allegations made by other
parties and how you may have considered other alternative responses
to these types of situations.
Responses to directives
given to you by your supervisor
You have a right to question a decision
which I make relative
to any client on your caseload. However, unless that decision
violates the client's rights or is contrary to Human Service
Department policy, you will be expected to carry out directives in
a professional manner. This is meant to include not passing on
your misgivings or lack of support for my decisions to clients,
vendors or their staffs, or any other party directly or indirectly
involved in that decision.
It is my position that once a decision is
made, you as a
casemanager have the responsibility to carry out directives in an
objective, professional manner.
Independent decision-making regarding client
You are expected to carry out your duties in
manner and a professional manner as noted in your job description
responsibilities. You will not be expected to consult with me on
matters which are not identified above in this document.
However, if you feel that a situation
requires my consultation,
or you feel there may be a conflict of interest, you certainly can
discuss such matters with me. As with other case managers, this is
a standard of your overall performance as a professional.
Letter writing to vendors
or client related parties
For the next few months, you will be
expected to provide me
with drafts of all letters which you send out with the exceptions
of: State personnel such as the developmental disability follow
along staff persons, guardians for signatures on Individual Service
On April 3, 1998, Cornette issued a follow-up memo regarding
Fazer's work performance since September, 1997, which read in
relevant part as follows:
. . .
The following are updated comments by me
performance since September 1997.
when working directly/indirectly with
. . .
Since September of 1997, I am only aware
of the dissonance
which occurred regarding two of your clients at Curative's Head
Injury Program. I do not feel some of your comments you made
during that meeting were appropriate given the purpose of the
meeting: 1) Implying that there was a violation of rights which
might occur if things did not change for your clients; 2)
Criticizing a program which you had one visit; 3) Making
inferences of your inability to case manage your cases because one
of your peers was holding onto reports from Curative.
Other than the occurrences related to Curative's Head Injury
program, I am not aware of any other situations/scenarios which
would suggest that you have not been working within the parameters
of your job responsibilities as it relates to interagency
Financial inquiries into
client matters with vendors
. . .
I have not seen any clear problems here.
However, David, at
least implied/suggested in a meeting I had with him on 3/19/98 that
he may have direct or indirect knowledge of an alleged misuse of a
consumer's SSI funds. I asked Dave to clarify what he was talking
about and he would not expand on his comments. If Dave has such
information and is withholding it for whatever reasons he may have,
this might well be quite problematic. I told Dave that the review
of allegations/suspicions of misuse of such funds is my
responsibility to deal with.
. . .
Dave puts a great deal of passion and
energy into individual
cases where he feels a client has unmet needs or is being taken
advantage of. There are times when he gets quite emotional as he
can make allegations or attributes motives to others that are not
always accurate. I have talked to him regarding controlling what
he says in an appropriate manner which does not antagonize or
threaten individuals or agencies. However, he has told me that "we
will never agree on some of these matters until water freezes over.
This thing goes deeper than you want to admit."
Responses to directives
given to you by your supervisor
. . .
I have not directly seen or heard of any
Dave has violated Departmental policies.
Independent decision making regarding client
As noted above, Dave is very emotional and
committed to the
clients he serves. However, it also has to be noted that, in my
opinion, Dave has trouble compromising, negotiating and accepting
direction when he feels that his position is the only proper one to
follow. There have been occasions where Dave has also acted in a
very immature manner, particularly with regards to his
supervisor--drawing a devil caricature in a staff meeting, talking
to staff from another agency when I was attempting to start a
meeting, telling me I was being "conned" by an agency in front of
the staff, etc.
The latest incident where he brought up one
of his peer's names
in an agency staff meeting to justify a point was inappropriate.
Clearly, during the meeting, the rhetoric between both parties was
being measured (i.e., controlled emotion); however, I feel Dave has
made some remarks that are best reserved for private discussions
between himself, his supervisor, and the party in question, rather
than making abrasive and accusatory remarks in the front of others.
I believe Dave has a long way to go yet
controlling of his emotions and behavior, particularly when he
experiences disagreement with vendor agencies or his supervisor.
Letter writing to vendors
or client-related parties
. . .
The letters Dave has sent out during the last
few months have
not had to be edited by meat least to the best of my recollection.
There have been letters in the past which I have instructed Dave to
amend. He can independently write letters again; however, it is
expected that he will remain consistent with the manner in which he
has written letters during the last few months.
On approximately April 13, 1998, Fazer left the CIP unit on
disability leave. His family doctor, Dr. Meade, issued him an
excuse from work for April 13 - 17, 1998, stating that he could
return to work on April 20, 1998. Effective April 22, 1998, and
through the end of August, 1998, Dr. Thomas (Fazer's psychiatrist)
excused Fazer from work. After Fazer left the CIP unit in April,
1998, he filed an equal rights claim against his supervisor, John
Cornette, alleging sexual harassment.
Thereafter, Fazer was on short-term disability leaves for
depression and panic attacks as well as post-traumatic stress
syndrome. On September 8, 1998, Fazer was released by
Dr. Thomas to return to work and on October 19, 1998, Fazer
returned to the CIP unit to resume his employment. However, Fazer
suffered a panic attack and was off work again until November 20,
1998, when he again returned to the CIP unit for a brief period
before going on long-term disability leave beginning December 13,
1998. It was in December, 1998, that Dr. Thomas diagnosed Fazer
with post-traumatic stress syndrome. On June 23, 1999, Dr. Thomas
issued the following return to work order for Fazer:
You may return to work without restriction. I strongly
recommend against returning to your work environment at Brown
County Human Services as this will exacerbate your medical illness
increasing your chance of sickness and death.
On August 26, 1999, Dr. Thomas wrote Fazer a letter regarding
his return to work status which read in relevant part as follows:
. . .
I am writing you at this time to clarify the
events that took
place between June 23, 1999 and August 9, 1999 with regard to your
return to work status. Several documents were generated and
without knowing the context of the situation, these documents
appear to be confusing. The purpose of this letter is to put those
documents in the context of the events.
I saw you for an appointment on June 23,
1999. At that time
you informed me that in order have food to eat you needed to do
some work of some kind to generate some money. You told me that
the only thing you were going to try to do would be to tend the
cash register at a local liquor store for few hours a week. You
reported that owing to the fact that a friend of yours owned the
liquor store, this would be a good environment for you to try and
see if you could tolerate work of any kind. I told you that in
order to be able to do that, that I needed to give you a Return to
Work slip. I generated a Return to Work slip dated June 23, 1999
with the understanding that this was the only employment that you
were going to try and I strongly advised you against going back to
Brown County Human Services in your medical state at that time. It
was my opinion that returning to Brown County Human Services would
exacerbate your medical illness.
Between 06/23/99 and 06/25/99 you
contacted me to tell me that
the very thought of returning to work of any kind had caused your
symptoms to worsen and the decision was made to leave you on
I then generated two Disability reports on 06/25/99 and
06/29/99 documenting your medical status. I opined that based on
your reaction to having any vocational task expectation or
vocational interpersonal interaction, that you remained totally
disabled for your job or any job.
I saw you for an appointment on July 9,
1999. At that time you
revealed to me that you had indeed proceeded with work at Pappy's
Liquor Store and that were doing this part-time. We agreed that
this would be a test of at least minimal task expectation and we
would see how you tolerated this.
You had an appointment with me on July
26, 1999. At that time
you reported to me that the work you were doing at Pappy's Liquor
Store was being fairly well tolerated.
You had an appointment with me on August
9, 1999. At that time
it was apparent that you were tolerating some level of task
expectation from a vocational standpoint. It also became apparent
that over the previous month your symptoms had been significantly
improving. While your symptoms continued, it was my opinion that
they had improved to the point that it was reasonable for you to
attempt a work trial. At that time you stated that you wanted to
try to return to your usual job at Brown County Human Services.
Owing to the fact that your condition had improved, I opined that
you were now stable enough to see if you could tolerate that job or
any job. I made it clear to you at that time that going back to
work at Brown County Human Services would obviously place you at a
higher risk of having your medical symptoms worsen than if you were
to go to work at any other place.
Ultimately I told you on August 9, 1999
that I would release
you to return to work without restriction for any job. This
remains my current opinion. This is with the understanding that it
would be a work trial which may or may not be successful.
. . .
Prior to August, 1999, Fazer had filed a worker's compensation
claim against the County. In conjunction with this claim, Fazer
agreed to be deposed by the County on September 15, 1999. That
deposition was aborted, however, when Fazer made suicidal comments
and his attorney (Linda Vanden Heuvel) had Fazer committed to a
In January, 2000, the Worker's Compensation proceeding was put
before Dr. Grunert. On February 24, 2000, 1/ Grunert issued his
independent psychological re-evaluation of Fazer. Dr. Gunert's re-evaluation read in
relevant part as follows:
Mr. Fazer was referred for independent psychological
re-evaluation by Ms. Mary Beth Callan of Denissen, Kranzush, Mahoney
& Ewald, S.C. I have previously seen him for independent
psychological evaluation on February 23, 1999. Additional medical
records forwarded are all records since February 23, 1999,
regarding Mr. Fazer, from Dr. Thomas and Dr. Lund. Records are
also available from St. Joseph Community Hospital of West Bend.
Additionally, a deposition transcript from Dr. Thomas dated August
17, 1999 was available for review. Mr. Fazer's deposition
transcripts dated September 15, 1999 and December 30, 1999, were
also available for review. Records now available for review that
were not available at the time of the February 23, 1999 IME are
records from Dr. Mead dating from December 8, 1987 through March of
1998. The general gist of the records from Dr. Thomas felt he was
capable of return to work with no restrictions in August of 1999.
He continues to show stabilization of his PTSD symptoms as well as
reduction of his panic disorder and depressive symptoms steadily
from August of 1999 to the more recent note dated January 5, 2000.
Of note is the fact that Dr. Thomas indicates that the patient
understands that anything related to the Brown County Department of
Social Services may exacerbate his symptoms of PTSD and depression.
He notes that the patient understands this and elects to proceed
with attempt to return to work. He also notes that the patient
continues to refuse medications and understands that this increases
his chance of sickness and death. This is reflected in the note of
November 8, 1999. His note of December 1, 1999 indicated the
patient is tolerating his medications and there remains no contrary
indication to the patient returning to work in any job. In his
note of January 5, 2000, Dr. Thomas notes that Mr. Fazer continues
to have PTSD although he is convalescing. Depressive symptoms are
Dr. Lund notes in his note of August 30,
1999, that Mr. Fazer
is doing better in regards to his depression, panic attacks and
post-traumatic stress disorder. He is thinking logically and his
mood appears to be better. The next available note for review is
October 11, 1999, which basically just states that he was in for
therapy. He was again seen on November 3, 1999 and on December 29,
The notes from St. Joseph's Community
Hospital of West Bend
were also reviewed. These records indicate that Mr. Fazer was
hospitalized, as he had made an apparent suicidal statement. This
apparently occurred during the deposition when he became
exasperated with the proceedings. Apparently, at the deposition he
had stated something to the effect that he should just put a bullet
in his head and the next thing he knew police were there and he was
under a Chapter 51. Throughout his hospitalization he denied
wanting to actually end his life. He stated on several occasions
that he had just made a "stupid" statement. He was discharged home
and returned to reside with his wife in Green Bay. His diagnosis
of discharge was one of adjustment disorder not
otherwise specified, rule out post-traumatic stress disorder,
rule-out major depressive disorder-recurrent, moderate to severe
without psychosis, rule-out panic disorder without agoraphobia.
. . .
I will now address the interrogatories that
were posed to me.
Please identify as to
whether Mr. Fazer has reached an end of
healing for his psychological condition.
As of today in my office, he is
asymptomatic for panic
disorder, post-traumatic stress disorder and depression. He
clearly has reached an end of healing as it related to his
Please advise as to
whether Mr. Fazer may return to work and, if
so, under what restrictions? Please specify whether Mr. Fazer
is capable of returning to work as a social worker and whether
he is authorized to return to work at Brown County.
I would have no restrictions on Mr. Fazer
at this time
regarding return to work. He certainly appears capable of
returning to work as a social worker and capable of returning
to work at Brown County at the present time. I would hope
that he would be reintroduced into the workplace with a
reduced caseload initially. He will also undoubtedly require
some orientation time to reacquaint himself with any changes
to state regulations which would come into play as a result of
his job. I would estimate that this could be accomplished
within four to six weeks of return to work.
Please provide your
opinion as to whether the alleged psychological
injury has resulted in any permanency and, if so, to what
I do not believe that he has sustained any
permanency as a
result of this alleged psychological injury. He appears quite
capable of resuming all of his job duties at this time without
any limitations. He is, therefore, rated at 0% permanent
partial disability to the body as a whole as a result of
. . .
1/ Approximately one year earlier, Grunert
had evaluated Fazer
as a part of his worker's compensation claim.
In March, 2000, the County began preparing for Fazer's return
to County employment. On March 23, 2000, Human Resources Director
Kalny wrote to Fazer regarding his return to work as follows:
. . .
As I informed you by previous
correspondence, we have been in
the process of coordinating your return to work. The fact that
there have been two unsuccessful attempts to return in the past,
together with concerns that you and your coworkers have raised,
need to be addressed. It also is noted that your doctor
recommended your returning to work on a trial basis and that Dr.
Brad Grunert recommended a phase-in period. Our goal is to bring
about your return to work in a manner that will minimize stress and
potential conflict for you and your coworkers.
To address those issues, we will phase in
your return to work
by placing you in a social worker position at Shelter Care. For
the past several years, the Human Services Department has requested
a social worker position at the Shelter Care facility. A review of
your background indicated that you would be particularly qualified
for such a position based on your past experience as a shelter care
worker. We also understand that you have had a good working
relationship with Jim Hermans, the Director of the Shelter Care
facility, in the past. Of course, as a social worker position
there would be no change in compensation and benefits. We look at
this as an opportunity to expand our service in a meaningful way
and expect that you will accept that challenge.
We have discussed this matter with the
Union and they will
waive posting issues to permit this placement.
To facilitate this placement, I would like to
set up a meeting
with you and Jim Hermans next week to review the job description
and to discuss hours, duties, etc. This position will be a phase-in position, with the
possibility that, if it works well, it will
We also are in the process of looking into
some training and
refresher matters for your return. We hope to be able to address
these issues next week.
. . .
On March 27, 2000, Fazer responded to Kalny's March 23, 2000 letter
. . .
I would also like to address the issues
contained in the
3/23/2000 letter from you. As far as the two alleged unsuccessful
attempts to return in the past, both
attempts did not fail due to my job performance. In addition,
I have no concerns regarding my coworkers. If my coworkers have
concerns related to me, I am more than willing to address those
through counseling with them or any other means management might
see fit. Dr. Grunert's report of 2/24/2000, recommended an
orientation period but did not recommend placement in a different
area. He also mentioned a reduced workload during the orientation
period to aid in the assimilation process. In his report, he does
not mention stress or potential conflict with coworkers in the CIP
unit. You reference my doctor's recommendations of a trial basis.
At this point in time, my doctor recommends return to work at Brown
County with no restrictions, no mention of a trial basis is noted.
In attending the meeting this morning I
understand the union is
not in agreement with placing me in a position without posting the
open position. The union board also expressed that they felt the
most appropriate course of action would be to place me directly
into the CIP unit. This historically has been the practice when an
employee returns from medical leave according to the union
attorney, Fred Mohr.
I feel that placing me outside of my unit
and area of expertise
would be unfair. I also feel that placing me in a temporary (LTE)
position is unfair. My current position in the CIP unit is a
permanent position; the proposed position is temporary. This
leaves me with grave concerns as to my future with Brown County
Human Services. I feel that placing me in a position without
testing is not fair to my fellow union members. At some point in
time I would be forced to test and post for either that job or one
in a different area. This posting might cause harsh feelings due
to having to bump another employee with less seniority. I feel
that I should be given the opportunity to prove that I have no
issues or problems with my coworkers in the CIP unit. Using
anonymous complaints from my coworkers or anyone else to justify
moving me out of the unit is unacceptable. It would be more
appropriate to deal with those "complaints" and gain understanding
and foster teamwork within the unit. My relationship with my CIP
coworkers has never been an issue.
. . .
On March 29, 2000, Fazer met with County officials and the
Union in regard to his placement (proposed by the County) into a
new position created at the Shelter Care facility. Following this
meeting, Fazer wrote the following letter dated March 30, 2000, to
Human Resources Director Kalny:
. . .
I am writing to express my strong objection
with placing me in the proposed Shelter Care position discussed in
the meeting of 3/29/2000. I
feel this is direct retaliation in relation to my filing my
discrimination complaint with the Equal Employment Opportunity
Commission (EEOC). My current position in the Community
Integration Program is open and available, this would be the
appropriate position for me to return to, according to the
Professional Employees Union. The Professional Employees Union
(PEA) has stated clearly through their attorney, Fred Mohr, that
historically when an employee returns from leave he is placed in
the position he left. I am being treated differently and
separately from the rest of my union members.
I would also like to address the unfounded
anonymous complaints that the Human Services Deputy Director, Bill
Jones, used to justify placing me outside of my job and area of
expertise. Bill Jones stated very clearly and emphatically that
many people, clients and vendors, had voiced complaints regarding
how I conducted myself in the past. Bill Jones refused to give any
examples of my alleged unprofessional conduct and in fact both
Jones and yourself stated there was nothing that I could be written
up on and disciplined for formally. Then why are the "allegations"
the basis for the decision to place me outside of my area of
expertise? I also feel this is direct retaliation related to my
pursuing the EEOC investigation as some of these allegations have
not been made in the past. In fact there is no documentation that
supports Jones and your claim that I acted in an unprofessional
manner in the past. If there are personal issues to be dealt with,
I prefer to deal with those separately from my return to work
issue. I feel that I should be given the opportunity to address
those issues and be provided with that documentation to support
your allegations. The fact remains, I should not be judged on
anonymous complaints that can not be provided to me, this is not
fair and I view it as direct retaliation.
The position at Shelter care would also
involve hours of
service that are much different than those currently involved in
the CIP position that I currently possess. . . . I also view this
as direct retaliation in relation to my current decision to pursue
the EEOC investigation. I have pursued a position with hours that
fit my family and myself, my current position in the CIP unit
provides for those hours.
The Shelter Care position that Human
Resources has fabricated
is only a temporary position of six months to one year according to
your description. At the end of that time period I would be forced
to post, test and possibly have to bump someone with less
seniority. This is not fair to me or the person that has to be
bumped in the future. Brown County is setting me up for problems
in the future. The PEA union has also expressed that they will
grieve my placement and request that the position be posted and
offered to everyone in the PEA union per contract. This placement
at Shelter Care sets me up for controversy and also ridicule from
my fellow union members. Instead of solving Brown
County's perceived, alleged issues, this placement creates
another whole set of issues. I perceive this as discrimination
based on my action of pursuing the federal EEOC investigation.
In addition, I feel that placing me in a
position against my
will is direct retaliation in relation to my EEOC complaint. I
decided to move on from the Shelter Care position in 1995 due to
personal reasons. I desired work with a different population of
clients. Now, the county Human Resources Department and the county
Human Services department are forcing me into a position that I
feel does not fit my skills, interests and desires.
. . .
In summary, I feel I am being singled out
against due to my filing and pursuing a federal discrimination
complaint and also due to the fact of my being a federal
whistleblower. By not placing me back into my current position in
the Community Integration Program, Brown County is blatantly
singling me out with separate and different treatment from the rest
of the social workers at Brown County Human Services.
I will follow the direction of Brown County
Human Services and
Brown County Human Resources. I will report for duty when asked
and will perform whatever function Brown County desires me to
perform. I also, am voicing my strong opposition to the current
position Brown County is attempting to force me to accept. I am
not in agreement with my placement in the Shelter Care position.
. . .
By letter of March 31, 2000, Human Resources Director Kalny
responded to Fazer's letter of March 27, as follows:
. . .
In regard to your comment concerning the
unsuccessful returns in the past I am referring to the two
attempted returns to the CIP unit. Both attempts resulted in
further leave after only a short return. Regardless of the reasons
for the failure, avoiding the reoccurrence of that result should be
a mutual goal.
The concerns voiced by your coworkers are
not anonymous. I
have the names of the coworkers. The fact that I do not believe it
is appropriate to share names with you at this time does not render
them anonymous or lessen the validity of their concerns.
You have made many recent public statements alleging
on the part of John Cornette and Mark Quam. If you returned to the
CIP unit, you would be working in close proximity to these
individuals. Immediately placing you in that environment would
decrease our chances of making a successful return.
In returning you to work, we are required
to take your doctor's
advice into consideration. In reviewing your medical records, I
note that on June 23, 1999, Dr. Thomas stated that he would
strongly recommend against your returning to the work environment
at Brown County, as that would exacerbate medical illness,
increasing your chances of sickness and death. In September 1999,
you made suicidal comments resulting in the need for an immediate
assessment and hospital admission. In [sic] October 6, 1999, after
you began refusing your medication, which Dr. Thomas said increases
your change of sickness and death, Dr. Thomas reported that you
wished to proceed with your case and to return to work, although
you understood that you were at risk of worsening depression. On
November 8, 1999, Dr. Thomas reported you understood that anything
related to Brown County Human Services may exacerbate you symptoms
of PTSD and depression and that you continued to refuse
medications, even though you understood this increased your chances
of sickness and death. On January 5, 2000 Dr. Thomas commented
that, although there was no contraindication to a work trial, it
was his position that your working in your usual job in the usual
department would increase the possibility of medical exacerbation.
On February 24, 2000, you reported to Dr. Meade that you had no
symptoms and Dr. Meade then released you to work without
restriction. Based on the above, immediately placing you in your
old position is not logically consistent with returning you to work
for the long term.
Given the foregoing, I do not think it is
wise personnel policy
to put you back in the CIP unit at this time. It makes much more
sense to place you in a position away from the environment that you
have alleged contributed to your leaves in the past.
In regard to your statement that the union
attorney, Fred Mohr,
said that historically when a person returns from medical leave,
they are placed back into their old position. That statement is
incomplete and misleading. Upon return from short-term
we have generally returned employees to their same position. In
fact, that is what we did in both of your unsuccessful returns.
The contract language differs in regard to long-term disability.
As the union recognized, the contract provisions governing return
from long term leave allow management to place people in "any
available position" and allow management to make the determination
of what placement is appropriate on a "case-by-case basis". Your
union acknowledged that your case is unprecedented. Under the
unique circumstances of this case we are making available a
transitional position for your return. This is consistent with the
In regard to your statement that your return to Shelter Care is
unfair to your fellow employees, the fact remains that the Shelter
Care position is being made available to address the concerns
brought about by your return. As I have made clear, although this
has been a position that we have wanted to get in the table of
organization for some time, there is a good possibility we will not
gain approval for its continuance. This placement would not even
occur but for the unique circumstances of this matter. As such, no
other employee has a claim to the position. In any case the
principal concern here should be a successful return to work.
In regard to your concerns about bumping
in the future, I will
continue to attempt to address these concerns to the union.
I am pleased that you are interested in
working out the
concerns your coworkers have with you. We have contacted EAP and
they are willing to help us with these issues, but believe that
such assistance would be effective only if all parties are willing
The foregoing reasons form the basis for
what I believe to be
a sound conclusion that it is more likely you will be able to
successfully return to work outside the CIP unit. The ultimate
goal, of course, is to bring you back to work in a successful
manner. I hope this correspondence has clarified the rationale for
how we are proceeding in this matter.
. . .
On April 2, 2000, Fazer responded to the County's letter of March
31, 2000, as follows:
. . .
In regard to the two attempts at returning to
the CIP unit that
you mention. These attempts were not successful due to the actions
of both Mr. John Cornette and Mr. Mark Quam. Both of these
individuals used their positions of power to harass, intimidate and
discriminate against me which ultimately led to my medical issues
and medical leaves. You state, "Regardless of the reasons for
failure, avoiding the reoccurrence of that result should be a
mutual goal". I fail to recognize how punishing the victim of
harassment, intimidation and discrimination should be a "mutual
In addition you state, "The concerns by
your coworkers are not
anonymous". You further state that you have the names of my
coworkers. I also have the names of my coworkers. As long as the
alleged issues will not be brought to my attention, their status
remains anonymous and not dealt with appropriately.
Again, using anonymous complaints to justify treating me in a
separate and different manner than my union members is
Regarding your statement that I have made
statements alleging wrongdoing on the part of John Cornette and
Mark Quam. I do not know what statements you are referring to, but
any statement that I might have made has factual basis. As far as
working in close proximity to the Mr. Cornette or Mr. Quam, I do
not feel this is a problem on my part. I have attended many Human
Services Committee meetings with Mr. Quam in attendance, I have not
had a problem. I have also been in close contact with Mr. Cornette
at his deposition and at hearings in the courthouse and I did not
have a problem. In addition I have attended several meetings in
the Sophie Beaumont Building and have had no issues. I feel the
problems might be on the side of these two managers. My chances of
a successful return will be fine as long as management acts
appropriately. This is definitely discriminatory treatment towards
me based on my pending federal complaints.
I take offense that you have used my
medical records from the
past to justify not placing me back into my position in the CIP
unit. You systematically list out notes from Dr. Thomas going back
as far as 6/23/99 in which Dr. Thomas does not recommend my return
to Brown County Human Services. I have made great progress in my
recovery from the medical issues caused by discriminatory treatment
by supervisors in the Brown County Human Services Department. I
feel punishing the victim for actions of managers and the director
of Brown County Human Services is inappropriate and of course
discriminatory. Dr. Thomas, Dr. Meade, Dr. Lund and of course the
County's doctor, Dr. Grunert have approved my return to Brown
County Human Services without restriction. I feel you are using my
medical history to discriminate based on disability and also based
on the fact of my having filed a federal discrimination complaint.
Given the foregoing, I feel it would not be
wise for Brown
County Human Resources to punish me by placing me in a position
other than the one I currently possess. You state that placing me
away from an environment that I have alleged contributed to my
leaves in the past would make more sense. I feel that protecting
me from harassment, intimidation and discrimination would be much
wiser personnel policy.
In regards to my concerns of this being a
the position is temporary by your own admission. Due to the nature
of this position I would be placed in a position of having to post
and test for another position in the not so distant future. This
would make it so I would have to test to retain employment, of
course Brown County controls the testing process. The situation
bumping concerns me greatly as this sets me up for problems in
the near future. As I have stated in previous communication, this
position creates as many problems as it allegedly solves. This
temporary position also leaves my future with Brown County in
In regard to Fred Mohr's statement of
historically placing a
worker back into their old position when returning from leave.
This has been the practice in the past. You state that my case is
unprecedented, this might be true. Fred Mohr also stated that 99
out of 100 workers would have quit by now and thus the reason why
my case is unprecedented. Why should I be punished for exercising
my rights under employment discrimination law?
As far as the position at Shelter Care being
created to address
the concerns related to my return. What are those issues and why
is Brown County addressing them through me instead of addressing
the issues with the managers who created the issues initially? In
addition, why wasn't a new job away from other employees created
for John Cornette back when myself and my coworkers complained
about him extensively? The principal concern is for me to be
treated fairly and in a non-discriminatory manner, not just my
return to work.
You state that you will "continue to attempt
to address" my
concerns regarding bumping in the future. This very clearly shows
that no definite language has been written down to address my valid
You also state in relation to my willingness
to work out any
issues with my coworkers that such assistance would be effective
only if all parties are willing to participate. I am willing, thus
my coworkers or managers must not be willing to participate. In
the past I attended the EAP when asked by management, my
supervisor, John Cornette would not attend. Once again, I am being
treated in a separate and different manner than other in the
I feel that all reasons given for placing me
in a position
against my will are not valid and in fact are based on retaliation
for my filing a federal discrimination complaint and being a
federal whistleblower. Thus, I will follow whatever direction
Brown County gives me but am voicing my strong opposition to the
planned position at Shelter Care.
. . .
On April 7, 2000, Human Services Director Kalny responded to
Fazer's letters of March 30 and April 2, as follows:
. . .
In regard to the first paragraph of your
March 30, 2000 letter,
I emphatically state that I have absolutely no retaliatory intent
in regard to your placement at Shelter Care. The entire rationale
for placing you outside of the CIP unit is to facilitate your
successful return to work. In your claim for worker's
compensation, you specifically argue that your work environment
increased your stress and was the cause for your medical leaves.
I do not want the work environment to be the alleged cause for
additional leaves. I also recall from the record that you have
stated that you have received death threats from John Cornette.
While your allegations were never corroborated, it still makes
sense to avoid the opportunity for similar alleged confrontations.
I am confident that anyone taking an unbiased look at this case
would come to the conclusion that placing you back in the CIP unit
is not likely to promote a successful return to work.
As to the second paragraph of your letter,
concerning Bill Jones' comments is taken out of context. If you
review the tape, you will note that we were in the process of
discussing our expectations for your return to work and had
informed you that we did not want you discussing your past concerns
with John Cornette and Mark Quam during work hours. Mr. Jones was
making it clear that we were talking in terms of you discussing
these matters during work hours with members of the public,
coworkers and vendors. You agreed with that directive and stated
that in the interest of successfully coming back to work, it would
not be wise for you to have such discussions during work hours.
Mr. Jones made it clear that he was talking about vendors and the
public, as well as coworkers. He stated that we have heard that
you had discussions regarding some of your concerns about Mr.
Cornette with vendors in the past. While we did have a discussion
concerning vendor's comments, any comments that vendors may or may
not have made concerning you were not considered by me in regard to
your return to work.
In regard to the third paragraph of your
letter, I have
addressed that issue in earlier correspondence. We will be using
an 8:00 a.m.-4:30 p.m. work schedule. However, should this
position change or evolve in the future, you will be treated like
any other employee in regard to additional hours.
In regard to the fourth paragraph of your
letter, you have
misunderstood the creation of this position. As we repeatedly
informed you, we would like to see this become a permanent position
in the table of organization. Currently, it is not. The position
was created specifically to address the issue of returning you to
work successfully. However, it is a position that we have
requested in the budget for the last two years and which, I believe
all parties would agree, would
be an advantageous and desirable position to the County and the
union. As you are aware, we have discussed this matter with the
union in some depth. As your union representative stated at the
meeting, we have had a history of working these matters out with
the union and I have every confidence that we will work this out as
well. There is no intent to subject you to ridicule here. There
is the intent to place you back to work.
In regard to the fifth paragraph of your
placing you outside your area of expertise, as I have stated in
earlier correspondence, you will have all posting rights in the
future. You will therefore be in a position, once we have made a
successful transition, for you to post into another position.
In regard to the request for the signing of
as mentioned in my prior correspondence, I reviewed my file and I
concur, I do not need additional releases. I also stated that I
would be happy to see what your doctor has to say on this issue and
will wait for response on that before I take any further action.
Again, in making this decision I have relied on the comments of
your physicians, as well as Dr. Grunert, over the past several
In regard to the seventh paragraph of your
letter, a review of
my file does not show much, if any, "whistle blowing" that you have
made this office aware of. Your original complaint, if you recall,
had to do with your concern that you were going to be discharged by
Mr. Cornette and did not set forth complaints concerning
illegalities in the department. You would not cooperate with our
attempts to investigate your December 5, 1998 complaint concerning
Mr. Quam. Much of what I am hearing in the media has not been
previously forwarded to this department. Nor do I have any record
of your claimed attempts to get that information to us.
It is not in any way unfair to demand that
you inform us of the
grounds for the charges of wrongdoing that you have alleged through
the media. I would require any employee in the same situation to
provide this office with evidence of wrongdoing. I will permit the
recording of these statements. I would think you would welcome
It is true that your case is being handled on
basis, as the law requires. You are the only person that I am
aware of in the Human Services Department that has been on various
sorts of leave on a practically continuous basis for an almost two
year period. There are also concerns that have been raised by co-workers, concerns that you
have raised and concerns that your
medical care providers have raised with your return to the CIP
position. In light of all those concerns, I have made what I
believe will be a workable solution to
getting you back to work. Frankly, I believe it is time that
your posturing stop and that you return to work in a manner which
is reasonably calculated to be successful.
Accordingly, we will continue to direct you
to report to the
Shelter Care facility, upon receipt of any medical consideration
that your care providers would like to give us.
I am now also in receipt of your letter of
April 2, 2000 and
rather than write another correspondence wish to briefly respond.
This office has absolutely no intent to
punish or retaliate
against you. Our intent is to facilitate the best possible means
of returning you to work. We would be happy to address your
concerns with our plans for your return so long as they are
constructive. I see no reason to engage you in debate over your
mistaken impressions concerning our intent.
In all other respects you know our rationale
and direction in
regard to your return. Upon receipt of the information from your
doctor, I will finalize preparation for your return to work at
Shelter care. A prompt reply is expected.
. . .
On April 13, 2000, Dr. Grunert issued an addendum to the
independent psychological re-evaluation of Fazer, which read as
. . .
This is an addendum for the independent
psychological re-evaluation that was conducted on Mr. David Fazer. I have had
additional records provided to me since the time of the
reevaluation. These have included past medical records as well as
a variety of Internet communications and a tape recording and
transcript of a radio talk show that Mr. Fazer participated in with
Bill LuMaye. I have also been provided with a job description for
the shelter unit at the Department of Social Services for Brown
County. Based on my review of all these records, I would restrict
Mr. Fazer from returning to work for his previous job placement and
would recommend that he be placed in the shelter unit for initial
accommodation. As I outlined previously, his caseload should
gradually be increased. It is my understanding that this would be
a temporary placement. As such, I would like to have the
opportunity to reevaluate Mr. Fazer following one or two months in
this placement to make further recommendations regarding the
suitability of this accommodation and any further restrictions
that may be necessary in terms of this ability to return to work
within Brown County Social Services.
. . .
On April 13, 2000, the County responded to Fazer's April 7th
letter of which, inter alia, directed Fazer to report to the
Shelter Care to begin his employment as the social worker/case
manager at Shelter Care on April 20, 2000, at 8:30 a.m. Kalny's
letter read in relevant part as follows:
. . .
I am in receipt of your correspondence
dated April 7, 2000,
which was received in my office on April 12, 2000. Enclosed in
that correspondence was a note from Dr. Jonathan Thomas stating
that you could return to your old job. I can only assume that you
discussed with Dr. Thomas the Shelter Care placement and that he
has no further input in that regard.
I am also informed that Dr. Brad Grunert is
in agreement with
the proposed placement at Shelter Care and continues to recommend
a phase-in of your caseload. We are prepared to do that.
I must confess that I have some concern in
regard to the last
two paragraphs of your April 7, 2000 letter. When we met, I was
left with the impression that while you did not prefer the Shelter
Care position, you were anxious to get back to work and would give
that position your best shot. Your other correspondence has stated
that while you would rather not go back to the Shelter Care
position, you will do what you are directed to do by the County.
Your last letter indicates that you "have no desire" to work at
The reasons for this placement have been
explained to you at
some length and will not be reiterated in this letter. However, I
wish to make it very clear that we will expect you to perform you
duties at Shelter Care in a professional and efficient manner. So
that there is no question, by this letter, you are directed to
report to Shelter Care on Thursday, April 20, 2000 at 8:30
meet with Jim Hermans and Bill Jones for the purpose of returning
to work. Your failure to appear at that time will be deemed as a
refusal to return to work and will be viewed as an unauthorized
absence and as a refusal to return to work.
. . .
The job description for the social worker/case manager at
Shelter Care (created in March, 2000) reads in relevant part as
. . .
Provides assessment, case management,
counseling, and referral
services to residents of Shelter Care and their families in order
to help each resident achieve a positive stay and a successful
transition to their next living arrangement.
Assesses residents and families to determine
including initial screen for mental health and AODA issues.
Provides case management services for
residents who do not have
a Human Services case manager, including assessment, service
planning, monitoring, and evaluation.
Coordinates Shelter Care programming for
residents with Human
Services case managers and other community agencies.
Develops service plan for residents.
Refers residents and families to appropriate
Provides court testimony on residents when
Prepares reports to assist in the preparation
Conducts individual counseling and group
work with residents
including social skill development, daily living skills, and
Orientates residents upon admission as to
shelter services and
Assists Superintendent of Shelter Care in
implementing ongoing program of community presentation.
Attends staff meetings, attends in-service
and outside agency
Completes and maintains necessary
documentation according to
applicable requirements, codes and responsibilities.
Maintains the confidential nature of client and business
Complies with all local, state, and federal
residents and rendering of services.
Performs related functions as assigned.
General office equipment
Bachelor's degree in social work or
Valid Wisconsin Driver's License
State Social Worker Certification preferred
Knowledge, Skills and
Knowledge of principles, methods and
practices of social work.
Knowledge of current social and economic
problems and the
effect of these problems on families and individuals.
Knowledge of laws, regulations and
practices pertaining to
federal and state public welfare programs.
Knowledge of federal, state and local
organization and the ways in which these resources can assist
individuals and families.
Knowledge of living conditions, values
behavior of the
ethnic and subcultural groups served by the agency.
Knowledge of and ability to utilize a
computer and the
Ability to provide environmental and supportive social
services to individuals and/or families.
Ability to diagnose and provide
Ability to plan and organize work to
Ability to relate to people in an
Ability to establish and maintain working
agency and the community.
Ability to communicate effectively both
orally and in writing.
Ability to participate in and appropriately
Lifting 20 pounds maximum with frequent
and/or carrying of
objects weighing up to 10 pounds.
Intermittent standing, walking and sitting;
Using hand(s)/feet for repetitive single
manipulation, pushing, and pulling, and operating controls.
Occasional bending twisting, squatting,
climbing, reaching, and
Communicating orally in a clear manner.
Distinguishing sounds at various frequencies
Distinguishing people or objects at varied
distances under a
variety of light conditions.
This position description should not be
interpreted as all-inclusive. It is intended to identify the major responsibilities
of this job. The incumbents may be requested to perform job-related responsibilities and
tasks other than those stated in this
On Thursday, April 20, 2000, Fazer reported to the Shelter
Care facility to begin his work there. On that day, he met with
Shelter Care Director Jim Hermans and Department Director Bill
Jones and received an orientation document from Hermans as well as
a tour of the facility. Hermans showed him the room in which he
would be officed. That room, the first room along the girls' wing,
had previously been used as a girl's bedroom and at other times as
an office for the social work intern assigned to work at Shelter
Care during his/her internship from UW-Green Bay. The room was
equipped with a telephone and couch as well as a side table which
could be used as a desk. Hermans also gave Fazer a copy of the
master key to all of the rooms in the facility. 2/
2/ Although Fazer claimed that the key he was
given only opened
the doors to the girls wing, there was no evidence that Fazer's key
was not a full master key which operated every door in the facility
except the front door.
Fazer basically spent the remainder of the day working on the
orientation materials that Hermans had given him. The following
day, April 21, 2000, was Good Friday and a half-day holiday in the
County. Fazer reported to work as expected on the morning of April
21st and had a brief conversation with Hermans in which he
indicated he felt uncomfortable in the office provided him because
it was in the girls' wing of the facility and close to the girls'
bathroom. Fazer stated that there had been some allegations made
against him of a sexual nature and while these allegations were
untrue, Fazer was particularly sensitive to the issue of sexual
allegations. Fazer stated that the office space itself was
adequate--it was just the proximity to the girls rooms that made him
uncomfortable. Fazer stated that he noted one of the girls looking
at him "funny" when she was on her way down the hall and saw him in
that area. Hermans responded that it could be that the young woman
was wondering who Fazer was and that this was a frequent occurrence
for new staff members at the Shelter Care. Fazer said he did not
need an office at all and could work at any spot, even moving from
place as needed throughout the day.
Hermans volunteered to set Fazer up in the conference room of
the facility, as had been done in the past on occasion with other
people who needed office space. Fazer agreed that he had thought
of this also and that that could work well. Hermans then moved
Fazer to the conference room, got a telephone and set it up in that
room for Fazer and indicated that he (Hermans) would request a
locked file cabinet for Fazer to use. Hermans said that he was
happy that Fazer had been upfront about his concerns and was
comfortable bringing them directly to Hermans. Hermans assured
Fazer that relocating him was easy.
Fazer spent the balance of the morning in the conference room
reading and talking with the residents in the facility. At one
point, two boys got into an argument and a brief fight broke out
while Fazer was in the room. A staff member broke up the fight and
sent the boys
to their rooms to cool off. At the end of the work day, Fazer told
Hermans that he had had a good morning and did not mind having the
kids nearby in the conference room as it gave him a chance to talk
with them and meet them. Before leaving for the day (between 11:30
a.m. and 12 p.m.), Fazer spoke briefly to Hermans about his plans
for the weekend and wished Hermans a good holiday. Hermans
indicated that Fazer should continue to work out of the conference
On Monday, April 24, 2000, Fazer called Hermans early in the
morning and left a voicemail message. Hermans called Fazer back
and Fazer stated that he had thought things over during the weekend
and had come to the conclusion that he would not return to the
Shelter Care. Fazer said this was due to his "concerns and fears"
regarding possible client allegations since he would be officed in
the girls wing and a lot of other things that he could not go into.
Fazer stated that he did not blame Hermans for any of this, as the
situation was much bigger than the Shelter Care position. Fazer
indicated he was in the process of writing to Jim Kalny to explain
his actions. Fazer indicated that the situation should be put back
in the County's lap where it belonged; that the County would not
like his actions and that he was sure that the County would do
whatever they had to and that Fazer would have to decide what was
best for him to get on with this life. Fazer indicated that he had
spoke with this lawyer and had had a long talk with his wife over
the weekend. Hermans asked if Fazer wished to discuss any further
accommodations with him. Fazer responded in the negative. Hermans
essentially wished Fazer well and the conversation concluded. 3/
3/ Regarding the content of the above
conversation, I have
credited Jim Hermans concerning his version of that conversation.
I found him to be an entirely credible witness and he made
contemporaneous notes (placed in the record herein) which fully
supported his testimony.
The staff orientation document which Fazer reviewed on his
first and second day of employment at the Shelter Care reads in
relevant part as follows:
. . .
Day One and Two
-Introduction to staff and tour of facility.
-Location of office and other work space;
phone and office
-Meeting with supervisor to review job description and its
function with Shelter Care.
-Begin reading Shelter Care policies and
with supervisor to include questions, answers and
clarifications as needed.
-Begin initial contact/familiarization with
-Review of administrative rules for Shelter
Care and Wis.
Stats. 48 and 938 relating to Shelter Care.
-Referrals with staff the intake procedures
and process of
admission to Shelter Care.
-Rules and expectation for residents.
-Questions, clarification as needed with
-Continuation as needed from days 1 and
-Overview of confidentiality and client
-Daily routine and activities for residents.
-School (Community Schools and
-The roles of student interns and
-Review with staff and supervisor the role
of the Human
Services Department case managers assigned to residents.
-Review of resident records to identify
case plans and
involvement with community resources.
-Further contact and becoming familiar
with client group.
-Discussion with various case managers
who visit the facility
and/or who have clients placed at Shelter Care to explore ways
of working together on case service plans.
-Leaving about community resources frequently used by
Care residents; visit location and meet providers.
-Review Shelter Care resource material to
aid in developing
ideas for group work with residents (i.e. social skills; daily
living skills; sound decision making etc.).
-Based on information gained in the first
two weeks, begin
development of assessment, social history and service plan
documents for use with residents. Collaborate with staff and
other case managers for ideas. Contact service providers to
-Share recommendations with supervisor
-Discuss reporting requirements with
-Develop group program ideas.
Coordinate ideas with staff and
unit supervisor. Review with supervisor final plans.
-Discuss with supervisor the approach to
client work and
prioritizing client needs.
-Begin direct service client work. Discuss
and review with
supervisor assessment and service plans as developed.
Gradually build caseload.
-Conduct group work with residents per
the plan developed
earlier. Review outcomes with supervisor.
-Identify and schedule training in the areas
Court and procedures.
mental health screening.
necessary for social work certification and
Human Services Department requirements for pay step.
Affirmative action and client
grievance procedures training at
May 2000 staff meeting.
On April 24, 2000, Fazer wrote the following letter to Human
Resources Director Kalny:
. . .
I am writing to inform you that the current
situation that has
been fabricated to return me to work is unacceptable. I have
reported as commanded to the Shelter Care position and the Shelter
Care Facility. I am writing to follow up and to inform you that I
will not allow myself to be placed back into that position for a
number of reasons and personal risk factors.
I have been positioned in the female
resident's wing in a
female resident's bathroom for my office space. This is
unacceptable and entirely inappropriate. This leaves myself open
to great liability. I refuse to accept the liability and chance
for any type of allegations to arise. I have voiced these concerns
to Jim Hermans and staff at the shelter. Direct care staff also
felt that my office being down the female wing was inappropriate.
Jim Hermans gave another option which
was using the conference
room and the wall phone in that room. This is also unacceptable as
this room is used frequently by staff, residents, family, agencies,
etc. In fact, Friday a fight broke out in the conference room
between residents while I was attempting to complete my first week
orientation. This is definitely not conducive to having a
successful return or to my personal safety.
I am definitely being treated in a separate
manner by being placed in such a position of personal risk. No
other male member of the PEA Union is placed in a situation where
their office is in a female resident's bedroom in the female
residents wing of the Shelter Care Facility. No other member of
the PEA Union is placed in a facility without definite job duties
and definite office space. This situation is completely
inappropriate and unacceptable.
Brown County has separated me from my
union coworkers and
placed me in a position against my will. Brown County has also
failed to provide me a position that is even remotely similar to
the position that I currently possess in the Community Integration
Program. The fabricated position at Shelter Care is not comparable
to the position in the CIP unit.
In light of Brown County using anonymous allegations in my
situation in the recent past, I have great fear that Brown County
will continue to utilize this means of retaliating against me.
Thus, I will not consent to being placed in a situation where the
county can use such allegations to place me at risk of being
accused and charged with possible crimes.
. . .
After his conversation with Fazer on the morning of April 24,
2000, Hermans called County officials to notify them that Fazer did
not intend to return to work at Shelter Care. As a result, Kalny
wrote the following letter to Fazer dated April 26, 2000, and had
a Sheriff's Department plain clothes police officer deliver it to
Fazer at his home on April 26. That letter read in relevant part
. . .
I am in receipt of the above-referenced
correspondence in which
you inform me that you will not return to the temporary Shelter
Care position. I am also informed that you failed to report to
work on April 24th, 25th and 26th and
that you have returned your
I have reviewed your letter and cannot
agree with the
assertions you make. Being officed in the female wing at the
Shelter Care facility does not expose you to liability, unless you
misbehave. We have placed other people in that same office on a
temporary basis. Other Social Workers have used that office for
client interviews as well.
I also cannot agree that placement in the
conference room at
Shelter Care is inappropriate. Again, we have placed others in
that room on a short-term or occasional basis and this room has
also been used for interviews.
You continue to insist that the placement is
you are aware, the placement is consistent with the restriction put
on your return to work by the worker's compensation health care
In regard to your insistence that we are
allegations in your situation, I again deny that allegation.
Moreover, I have no understanding of why this is important in
regard to your return to work through the Shelter Care transition
Seeing as you have elected to discontinue
coming to work
without authorization, you are absent from your job without
approval. In addition to your absence
being evidence of job abandonment, unauthorized leave is
grounds for discipline up to and including discharge. The County
specifically reserves its rights in that regard.
We have provided a reasonably similar
position for you to
transition back to work in a manner consistent with the advice from
a health care professional. At each step you have insisted that
our actions are retaliatory, rather than work with us to try to
minimize what adverse impact you may believe could occur.
If you choose not to return to the Shelter
Care position, we
will treat your action as job abandonment, voluntarily
discontinuing your employment with the County. Your continued
absence through Friday, April 28, 2000 will be taken as your answer
that you did not wish to work this situation out and have
determined to leave employment with Brown County.
. . .
Fazer responded to the County's letter in detail by letter
dated April 26th. The relevant portion of that letter reads as
. . .
I am "not" voluntarily relinquishing my
employment with Brown
County. I am not allowing myself to be placed in a situation of
great risk. I am not allowing myself to accept separate and
disparate treatment by my employer.
. . .
On May 4, 2000, Kalny responded to Fazer's April 26 letter in
relevant part as follows:
. . .
Finally, On April 26, 2000, the County
gave you the opportunity
to return to work by April 28, 2000. Your actions in not coming
back to work constitute job abandonment and you are no longer
considered a Brown County employee.
You will be receiving the appropriate
documents for an
individual who has voluntarily discontinued their employment with
the County effective April 24, 2000.
. . .
On May 25, 2000, Fazer wrote the following letter to Kalny:
. . .
This is to create a clear record of my stand on my position of
CIP social worker with Brown County Human Services. I am not, have
not, and will not voluntarily resign from my position. I fully
expect the opportunity to discuss and work out solutions to the
current issues pertaining to my employment with Brown County.
. . .
On cross-examination, Fazer asserted that he was not qualified
for the social work position at the Shelter Care. However, he
admitted that he could perform all of the duties listed on the job
description except that he was unfamiliar with juvenile delinquency
laws and had had no training or certifications in the AODA area or
in initial screening for mental health disorders. Fazer's social
work degree from UW-Green Bay is a generalist degree, which briefly
covered these topics. Only after he became an employee at CIP did
Fazer gain a QMRP certification.
The County submitted several city ordinances which it urged
were pertinent to this case:
. . .
BARGAINING AGREEMENTS. This chapter applies
to employees not covered by collective bargaining agreements and to
employees so covered when specific labor contract provisions do not
apply to the contrary.
. . .
4.77 LEAVE OF
ABSENCE. (1) Policy. The Personnel Director
may grant a regular employee leave without pay for a period not to
exceed one year subject to the following conditions:
. . .
(2) Unauthorized Absence. It
is recognized that there may be
extenuating circumstances for unauthorized absence, and due
consideration shall be given each case. However, an employee who
is absent from duty without approval may be considered as having
abandoned his/her position, depending on the circumstance.
. . .
POSITIONS OF THE PARTIES
The Union argued that Article 27 of the labor agreement
requires the County to post any new positions and that the Union
refused to waive the posting procedure regarding the Shelter Care
job given to Fazer. Thus, the County placed Fazer in Shelter Care
job in direct violation of Article 27, although his prior position
at the CIP unit was vacant and available. In the Union's view,
therefore, the County abused its discretion under Article 19 by
creating a position, failing to post it and placing Fazer in that
position. Indeed, if the Employer had followed Article 27 and
placed Fazer in the Shelter Care position, Fazer could have
returned to his CIP unit within ten working days of taking the
Shelter Care position if he had chosen to do so.
Although the language of Article 19 grants the County
discretion following a long-term disability leave, that discretion
is limited by Article 27. Pursuant to Article 19, the County must
return an employee to a position for which he/she is qualified.
The Union noted that the County has always utilized testing to
determine qualifications. As Fazer's prior work at the Shelter
Care was as a non-degreed caregiver, Fazer was not qualified for
the Shelter Care position in the Union's view. In this regard, the
Union observed that Fazer had no training in State and Federal laws
pertaining to Shelter Care and had no training in AODA or mental
health screening, which was required at the Shelter Care. Thus,
the Union urged that the only position that Fazer was qualified for
was his former CIP position.
The County did not rely on professional advice in placing
Fazer in the Shelter Care. In this regard, the Union noted that
Fazer was not placed in Shelter Care on Dr. Grunert's advice, as
Grunert's addendum was sent to the County Workers Compensation
Attorney and County did not receive it before April 17, 2000. In
addition, Fazer's placement at Shelter Care was not an attempt to
accommodate Fazer, but rather an attempt to force him to resign.
In any event, the Union urged that the Grunert opinion was invalid.
On this point, the Union pointed out that Dr. Grunert saw Fazer on
two occasions for brief periods and restricted Fazer's return to
work while his own doctor, who he had been seeing for two years,
released him without restriction. In addition, Dr. Grunert's
addendum was based on a radio talk show transcript, Internet
communications and past medical records. Fazer denied authoring
the Internet communications copies of these and the talk show
transcript were never placed in the record in this case and the
past medical records had been available to Dr. Grunert before he
issued his addendum. Thus, in the Union's view, Grunert's addendum
opinion is without merit and apparently based on the County's wish
to treat Fazer unfairly.
In these circumstances, the Union urged that the placement of
Fazer in the Shelter Care position was discriminatory, based upon
his handicap or illness. The Union noted that Fazer's psychiatrist
believed he was fit to return to the CIP unit; that his former
supervisor John Cornette was no longer a supervisor in the CIP unit
in 2000; and that the placement of Fazer in
CIP would have afforded him a level of comfort not available in the
Shelter Care job. In this regard, the Union noted that Fazer was
qualified to work in CIP, that he knew the routine, regulations and
statutes that were applicable thereto and that he would have the
support of his colleagues at CIP. In contrast, at Shelter Care
Fazer was unfamiliar with State and Federal laws and regulations
applicable thereto and unfamiliar with the expectations of his
supervisor. At Shelter Care, Fazer would have to create a new
program, which never existed before, and that the job could expire
by the end of the year. In these circumstances, the Union urged
that the grievance should be sustained and Fazer should be returned
to his CIP position.
The County argued that the Grievant failed to demonstrate that
he was not qualified for the Shelter Care position. The County
argued that on April 20, 2000, Fazer was not returning from a long-term disability -- that
Fazer's LTD ran out on August 8, 1999, more
than eight months before his return to work. Although Fazer was
employed by the County after August 8, 1999, he received no salary
or benefits and was not entitled to use Article 19, Section 3, upon
his active return to County employment. Thus, in the County's
view, Article 19, Section 3, is inapplicable and the County had
complete discretion to place Fazer in any position that it chose.
Even if Article 19, Section 3, applies to the Fazer case, the
record showed that the County believed and Fazer admitted he was
qualified for the Shelter Care position. In this regard, the
County noted that at the instant hearing Fazer admitted that he had
the education and experience to perform all but three of the
itemized qualifications for the position. Those three items
included knowledge of applicable laws and regulations, familiarity
with community resources and the ability to diagnose and provide
treatment. As the County planned to fully train Fazer, these three
items would not have been a problem for Fazer in the Shelter Care
position. The County further noted that Fazer did not introduce
any evidence, other than his own opinion, that he was not qualified
for the Shelter Care job. As the Shelter Care job description was
specific and not generic and as Article 3 of the contract allows
the Employer to waive the testing requirement, the County did not
exceed its authority in placing Fazer in the Shelter Care job.
The County argued that the Grievant failed to prove a
violation of Article 19, Section 3. The County contended that it
has discretion to make determinations as to classifications on a
case-by-case basis and that the language of Article 19, Section 3,
is mandatory. The County performed a case-specific job analysis
prior to Fazer's return to work, considering nine factors before it
placed Fazer in the Shelter Care position as the best place for him
to resume his employment. These nine factors included Dr. Thomas's
medical release, Dr. Grunert's medical release, the County's
conversations with CIP employees regarding Fazer's possible return
to work there, Fazer's two unsuccessful attempts to return to CIP,
Fazer's qualifications for the Shelter Care job and the fact that
he had previously worked there,
the County's hope that the Shelter Care job would become permanent
and that Fazer's filling of the Shelter Care job on a temporary
basis would be acceptable to the Union and the County, the County's
intent to provide Fazer with training in any areas he needed and
the good relationship between Fazer and Shelter Care Director
Hermans in the past. All of these factors, the County urged,
supported the County's conclusion that Fazer was appropriately
placed in the Shelter Care position.
Fazer failed to show that his placement at Shelter Care
supported his claim of constructive discharge. For constructive
discharge to have occurred, an employer must intentionally make
working conditions so intolerable to a reasonable person that the
person is forced to involuntarily resign. In the County's view,
there is nothing in the record, which describes a workplace so
permeated with hostility as to satisfy the constructive discharge
criteria in this case. In this regard, the County noted that Fazer
complained about his office being in the girls' wing, but that
Hermans cured this complaint immediately, making it unreasonable
for Fazer to raise that as a difficulty thereafter. In addition,
on or before April 21st, Fazer never objected that he was
unqualified for the Shelter Care position, that he could not learn
the job at Shelter Care, and Fazer did not object to not being
tested for the job or to the temporary nature of the job. Rather,
he worked for a day and one-half and abandoned his position, and
Fazer was fully aware that the County would consider him terminated
if he failed to report to work on or before April 28, 2000, when he
chose not to return to Shelter Care. Therefore in these
circumstances, the County urged that the grievance be denied and
dismissed in its entirety.
The Union argued that the County should not place the burden
on the Grievant to prove he was not qualified for the Shelter Care
position. The Union noted that Fazer has no special training to
deal with the Shelter Care population and was not aware of
applicable State and Federal laws and regulations, making him
unqualified for the position. As the County has never waived
testing even for lateral transfers, and the Shelter Care and CIP
are very different jobs, the burden of proof should be on the
County to explain why it by-passed testing and placed Fazer in the
Shelter Care job.
The Union observed that the County argued that Fazer was not
returning from a long-term disability leave and that Article 19,
Section 3, should not apply. The Union contended that such an
assertion is contrary to the evidence. In this regard, the Union
noted that Fazer received a limited release from Dr. Thomas between
June 23 and August 9, 1999, and that Thomas only issued Fazer a
full release to return to work in August, 1999, whereupon Fazer
requested to return to County employment. As the County wanted an
independent medical exam for Fazer and this could not be scheduled
until September, it was not Fazer's fault that he
did not return immediately to County employment. Indeed, Fazer had
a relapse in the fall of 1999 so that independent medical exam
could not be scheduled until late February, 2000. Although the
County argued that Fazer qualified for the Shelter Care position
based on the job description, the Union noted that the job
description does not measure specific job duties. In addition,
although the County argued that Article 3 (Management Rights)
allowed it to waive testing and assign Fazer to the Shelter Care
position, the Union urged that one should not read Article 3 in a
vacuum. In this regard, the Union noted that Article 2 states that
the County cannot discriminate against any employee due to handicap
and that Article 3 itself states that the Employer cannot exercise
its management rights in violation of the agreement.
The Union urged that the County is not privileged to place
Fazer in any job and that the contract does not allow the County to
by-pass the normal qualifications procedure (testing) to determine
Fazer's qualifications for the Shelter Care position. The nine
factors the County reportedly used to place Fazer in the Shelter
Care position do not hold up to close scrutiny, in the Union's
view, leading to a conclusion that the reasons were created in
order to justify the County's violations of the labor agreement and
The Union contended that the County constructively discharged
Fazer by placing him in the Shelter Care position. For
constructive discharge to occur, working conditions must be so
intolerable that a reasonable person would be compelled to resign.
In this regard, the Union noted that the added responsibilities of
learning new laws and regulations, isolation from his co-workers,
discrimination because of Fazer's handicap and the fact that the
Shelter Care job was temporary, all show that the County treated
Fazer differently than it treated any other employees. In
addition, the Union noted that the County cannot refuse to return
Fazer to the CIP unit because it would have harmed him. Rather,
the law would allow the County to refuse to return an employee to
a work area only if it would harm others. As the County failed to
prove any harm to other employees in CIP by Fazer's return thereto,
this reason for refusing to return Fazer to the CIP unit was
inapplicable. In these circumstances, Fazer was justified in
removing himself from the Shelter Care position and insisting on
his contract rights to return to the CIP unit.
The County argued that the violation of Article 19 is the
central issue in this case. The County noted that the "work now,
grieve later" principle should apply to this case, as no unusual or
abnormal safety or health hazards existed for Fazer if he remained
at the Shelter Care. In this regard, the County noted that by his
March 30, 2000 letter, Fazer effectively admitted that he realized
he should have lived up to the "work now, grieve later" axiom and
Fazer's abandonment of his Shelter Care job should defeat his claim
of constructive discharge. In addition, Fazer's alleged fear of
remaining at Shelter Care was fanciful, unsubstantiated and
unworthy of belief, in the County's view. In this regard, the
County noted that Fazer's first office at Shelter Care had been
used as an office for several years; that Shelter Care workers
must physically check on all residents every ten minutes; that the
office door on Fazer's office was locked from the outside; that
male staff regularly patrol the girls' wing; that Fazer indicated
that he did not need an office and that the conference room was
adequate; that alternate office space was not available; that there
was no evidence that the scuffle which occurred on April 21 in
Fazer's conference room office endangered Fazer; and that Fazer did
not mention the scuffle when he left work that afternoon.
Thus, the credible evidence supported a conclusion that Fazer
resigned and voluntarily quit his Shelter Care position. In this
regard, the County noted that Fazer had plenty of notice that he
would be placed at Shelter Care before it occurred and that no
evidence was proffered to support the Union's claim that the
Shelter Care constituted a hostile environment sufficient to
sustain a claim of constructive discharge. Finally, Fazer was
warned that he would be considered to have quit his employment if
he failed to report to work as ordered (by April 28th) and Fazer
specifically refused to report to work under those conditions. As
the contract does not allow the employee to dictate job placement,
the County has the final say on the assignment of employees
pursuant to Article 19. Article 19 would be rendered meaningless
if this were not the case.
The County observed that the Union only raised the anti-discrimination section of
Article 2 at the hearing and that this
was never raised during the processing of the grievance. There was
no evidence that Fazer was in fact handicapped when he was placed
in the Shelter Care position and there was insufficient evidence to
show that Fazer was handicapped under any other legal analysis.
Finally, there was no proof that Fazer was covered by the Wisconsin
Fair Employment Act as a disabled person.
The County argued that posting and/or testing for the Shelter
Care position is irrelevant to this case. In this regard, the
County noted that the Union acquiesced in Fazer's temporary
placement in the Shelter Care job, filing no grievance thereon, and
that the County never refused to post the Shelter Care job, but
merely suspended the posting thereof. Finally, the County
contended that it had the right to waive testing and that at this
late date the Union's challenge of Dr. Grunert's credentials, being
based upon no factual evidence and no testimony from experts or
from Grunert, should be disregarded.
A central question in this case, on which the parties strongly
differ, is whether Article 19, Section 3, should apply to Fazer's
situation. The facts of this case clearly demonstrate that Article
19, Section 3, is applicable. In this regard, I note that in
March, 2000, Fazer's doctor's found that he was "able to return to
work." In addition, the facts showed that Fazer had been on "LTD"
prior to his return to work in April, 2000. As nothing in Article
19 requires an employee to have been on LTD immediately prior to
the employee's return to work and no language of the contract
conflicts with the applicability of Article 19 to Fazer's
situation, it is reasonable to apply Article 19, Section 3, to
The remaining language of Article 19, Section 3, states that
an employee returning after being on LTD "will be reinstated to an
available position for which s/he is qualified." It is significant
that this language does not require the County to return the
employee to the position he/she previously held before going on
LTD. Rather, Section 3 goes on to state that "such determination
will be made by the Employer on a case-by-case basis." The use of
the word "determination" appears to refer back to both "available
position" and to the qualifications of the employee. Thus, the
judgment regarding employee qualifications and what position is
available are clearly left to the employer under Article 19,
Section 3. In short, Fazer did not have the right to return to his
CIP position under the language of Article 19, Section 3. Rather,
he had the right to return to an available position for which he
The question then arises whether the Shelter Care position was
"available" at the time Fazer was placed in it. I believe the
position was "available." In this regard, I note that the County
had created a job description and orientation program for the
Shelter Care position prior to Fazer's placement therein. Fazer's
placement in the position supports a conclusion that it was
"available." Whether or not the position remained "available"
later is not relevant to this case. It is significant that Article
19, Section 3, does not state that the available position must be
a permanent one.
Furthermore, although the Union argued that Article 27 should
have been applied to the Shelter Care social work position prior to
Fazer's placement therein, such an approach was not required, as
the County was following Article 19, Section 3, placing Fazer in
the position. In my view, the Shelter Care social work position
was not a "vacancy" which the County needed to fill within the
meaning of Article 27, but it was an available position pursuant to
Article 19, Section 3.
But even if one were to find the Shelter Care position to
constitute an Article 27 "vacancy," it is clear that that Article
allows the County to make "immediate temporary assignments to fill
any vacancy" before applying Article 27 procedures to fill the
vacancy permanently. Thus, the County had the right to place Fazer
in the Shelter Care position without first posting (and testing
for) the position.
The next question which must be determined in this case is
whether the County acted arbitrarily, capriciously or
discriminatorily in determining that Fazer was qualified for the
Shelter Care position. 4/ In this regard, I note that Human
Resources Director Kalny stated that he considered a number of
factors in deciding to place Fazer in the Shelter Care social work
position. Those factors included the following:
Dr. Mead's return to work slip without restrictions dated
February 24, 2000.
Dr. Thomas' return to work slips dated June 23, 1999 and
August 9, 1999, as well as Dr. Thomas' August 26, 1999
letter of explanation and certain medical records dated in
October concerning Fazer's refusal to take his medication,
a medical record
dated November 8, 1999 and January 5, 2000, by Dr. Thomas,
which indicated that a return to Brown County might
exacerbate Fazer's medical condition.
The September, 2000 commitment proceedings of Fazer.
Kalny's concern about four or five CIP employees who were
interviewed regarding their belief that tension, publicity
and resentment in the CIP unit might be the result of
placing Fazer in that unit upon his return.
The two failed attempts to return Fazer to the CIP unit.
The fact that the Shelter Care job appeared to be a way of
removing Fazer from a stressful environment and easing him
into the County workforce as both Dr. Thomas and Dr.
Grunert had recommended work on a trial basis or phase-in.
Fazer's positive relationship in the past with Jim Hermans,
the Shelter Care director and the type person Hermans is
Dr. Grunert's re-evaluation of Fazer dated April 13, 2000, in
which Grunert finds the Shelter Care position would be the
best position to place Fazer for his return to work.
It should be noted that Kalny stated without contradiction that it
was his belief that the return to work slips from Drs. Mead, Thomas
and Grunert were conflicting and that Dr. Thomas' August 26, 1999
explanation conflicted with his own return to work slip issued on
behalf of Fazer. Given the correspondence between Fazer and Kalny
as well as the extensive medical records which have become a part
of this record, I cannot find that the County's decision to place
Fazer in the social worker position at Shelter Care was either
arbitrary, capricious or discriminatory.
4/ For the reasons stated above, I believe that
Care position was "available" and that the County could place Fazer
in that position. The contract does not require that the County
place returning employees in a permanent position.
An additional question arises whether Fazer was in fact
qualified for the Shelter Care position. In this regard, I note
that Fazer admitted that he could perform all of the job duties
listed on the Shelter Care job description with the exception of
mental health screening and AODA assessment and counseling. Fazer
also stated he was not aware of the laws and regulations
surrounding juvenile delinquency. However, these exceptions do not
mean that Fazer was unqualified for the Shelter Care position. In
fact, the County had promised, as listed in his orientation
documents and as the County witnesses stated in this case, that
Fazer would be fully trained in any areas in which he needed
training or education so that he could fully perform his Shelter
Care position. Furthermore, I note that the Shelter Care position
calls for a social work degree, which Fazer possesses and at the
time of this placement at Shelter Care, Fazer was properly
certified by the State of Wisconsin as a social worker. Fazer's
social work degree is a generalist degree from UW-Green Bay and a
degree was not required for the Shelter Care position. Although
Fazer's prior work at the Shelter Care was not in a professional
position, it was sufficient to give at least an idea of how the
Shelter Care facility operated from a caregiver point of view.
Finally, it is clear from the record that Fazer failed to argue
that he was unqualified for the Shelter Care position at any time
before or during his appointment to the Shelter Care position. In
these circumstances, the facts demonstrate that Fazer was qualified
for the Shelter Care position at the time he was placed in it.
The Union argued that Fazer was constructively discharged when
the County failed to return him to his CIP position but instead
placed him in the Shelter Care position. As Fazer had no right
under the contract language (Article 19) to return to his CIP
position, he could not be constructively discharged by being placed
at Shelter Care. 5/
5/ The Union argued that the County placed
Fazer in the
Shelter Care position in order to retaliate against Fazer for
whistle blowing regarding the misconduct of another County
employee. The Union failed to submit evidence to support this
argument. The Union also claimed (without offering supporting
evidence) that the County retaliated against Fazer for his public
criticism of County policy and management. Therefore, these
arguments were unpersuasive.
The Union argued that the County made Fazer's working
conditions so intolerable he was forced to quit on April 24, 2000.
In his April 24th letter to the County, Fazer listed the following
items as making his work life intolerable:
His first Shelter Care office in a girl's bedroom was
and could subject him to liability;
His second office in a conference
room was unacceptable;
He had no definite job duties or
office space as Shelter Care;
At Shelter Care, he was treated
differently and was separated from
his union co-workers.
In my view, none of these circumstances is sufficient (taken
separately or together) to prove the intolerable circumstances
necessary to justify Fazer's refusal to return to work at Shelter
Care. It should be noted that Hermans accommodated Fazer's
concerns about his office being in the female bedroom immediately
and moved Fazer to the conference room office; that the girls'
bedroom office had been used as an office for several years by
student interns at the Shelter Care; that physical checks every ten
minutes by care giving staff provide a safe guard against any
resident being unobserved and unaccounted for; that male staff
members are regularly seen on the girls' wing; and that the
conference room was really the only remaining area of the Shelter
Care available for office space other than the vacant girls'
bedroom Fazer was initially offered. In addition, the record facts
show that based upon his
position description, Fazer was assigned definite job duties at
Shelter Care. The Union also failed to prove herein that Fazer was
disparately treated. The simple fact is that as the social worker
at the Shelter Care, Fazer would necessarily be the only social
worker present at the facility and isolation from his co-workers
could not be avoided.
In its brief, the Union also argued that Article 2 should
guarantee that Fazer should not be discriminated against because of
his handicap. In this regard, I note that none of the doctors
involved in Fazer's case found him to be either disabled or
handicapped in any way at the time that they released him to return
to work. The fact that Fazer is the only employee who has not been
returned to his former position after having taken LTD, I do not
find remarkable or the basis for the Union's claim of disparate
treatment. In this regard, I note that the record clearly shows
that no employee has ever been on LTD and off work for the
extensive period Fazer has. Thus, a claim of disparate treatment
is very difficult to make where, as here, the Union has failed to
show that any other employees have been in a similar position to
Fazer in the past.
The final question in this case is whether Fazer abandoned his
position with the County by failing and refusing to return to the
position at the Shelter Care on and after April 28, 2000. In this
regard, I note that Article 8 (Discipline) states that no employee
shall be reprimanded, suspended or discharged except for just
cause. One of the causes for disciplinary action is listed as
habitual tardiness, unauthorized or excessive absence or abuse of
sick leave. Article 8, Section B, also requires that the Employer
notify the employee being dismissed in writing of the reasons for
the action with a copy being sent to the Union. In this case, the
County notified Fazer that it would consider him to have
voluntarily relinquished his employment if he failed to report to
work on April 24, 25 and 26 and through April 28, stating that if
Fazer chose not to return to his Shelter Care position, the County
would treat Fazer's action as "job abandonment, voluntarily
discontinuing your employment with the County." Although Fazer
wrote back to the County indicating he was not voluntarily
relinquishing his employment with the County, he also refused to
return to the Shelter Care position as he believed it constituted
"separate and disparate treatment by my employer" and placed him
(Fazer) "in a situation of great risk."
Although the language of Article 8 is sparse, it does allow
the County to consider an employee terminated for unauthorized
absence. It is clear based on this record that Fazer was given
sufficient notice that his continued absence from work at the
Shelter Care would constitute an unauthorized absence which would
subject him to involuntary termination. Fazer's letter in response
to the County's April 26, 2000 letter demonstrates that Fazer was
well aware of the risks he was taking by refusing to return the
Shelter Care. Indeed, Fazer's correspondence with the County
demonstrates that he was aware of the axiom that an employee should
"work now and grieve later." In these circumstances, it was
reasonable for the County to conclude that Fazer had abandoned his
employment and that it could rightly consider him to have
voluntarily quit his employment.
Based on the evidence and argument in this case, as well as
the above analysis, I therefore issue the following
The County did not violate Article 19, Long-Term Disability,
by refusing to return the Grievant to his former position in the
Community Integration Program. The grievance is, therefore, denied
and dismissed in its entirety.
Dated at Oshkosh, Wisconsin, this 23rd day of March, 2001.
Sharon A. Gallagher, Arbitrator