BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
GREEN LAKE COUNTY
INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL 139
Baum, Sigman, Auerbach, Neuman & Katsaros, Ltd., by
Attorney Pasquale A. Fioretto, 200 West
Adams Street, Suite 2200, Chicago, IL 60606-5231, on behalf of Local 139.
Mr. John B. Selsing, Corporation Counsel, Green Lake County,
120 East Huron Street, Berlin, WI
54923, on behalf of Green Lake County.
Pursuant to the 2001-03 collective bargaining agreement between Green Lake County
(County) and the International Union of Operating Engineers, Local 139 (Union), the parties
requested that the Wisconsin Employment Relations Commission designate a member of its
hear and resolve two disputes between them regarding the suspension and discharge of Javier
The hearing on the matter was held on November 20, 2002, January 8 and 31, 2003 and
2003. No stenographic transcript was made. The parties agreed to submit letter briefs
March 21, 2003. The Arbitrator received the Union's letter brief on March 24, 2003, and
an untimely brief from the County on April 24, 2003, due to the illness of County Counsel.
record was closed on May 2, 2003, when the Undersigned received a letter from the Union
no objection to my consideration of the County's untimely brief.
To maximize the ability of the parties we serve to utilize the Internet and
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 be determined by the Arbitrator
Did Green Lake County Department of Health and Human
Services violate the labor
agreement when it disciplined Grievant Javier Dimas without just cause to do so on July 23,
when it issued him a one-day suspension and then ultimately when it terminated Dimas on
2002? If so, what is the appropriate remedy?
ARTICLE 2 - MANAGEMENT
The Employer and Green Lake County retain and reserve the sole
right to manage its affairs in
accordance with all applicable laws, resolutions, ordinances and regulations. Included in this
responsibility, but not limited thereto, is the right to determine the number and classification
Employees; the services to be performed by them; the right to manage and direct the work
right to establish qualifications for hire and to test and judge such qualifications; the right to
promote and retain Employees; the right to transfer and assign Employees; the right to
suspend, discharge for cause, or take other disciplinary action subject to the terms of this
and the grievance procedure; the right to release Employees from duties because of lack of
lack of funds; the right to maintain efficiency of operations by determining the method,
personnel by which such operations are conducted, including the right to contract out
the exercise of this right shall not result in layoff of permanent personnel; and to take
actions are necessary and reasonable to carry out the duties and responsibilities of the
addition to the foregoing, the Employer and Green Lake County reserve the right to make
rules and regulations relating to personnel policies and matters relating to working
due regard to the obligations imposed by this Agreement. The Employer shall give
of new rules and regulations or changes therein as promulgated by it to the Employees and
Any disagreement over the meaning or application of such rules and regulations may be the
of a grievance; however, the Employer reserves total discretion with respect to the function
mission of the County, its budget, organization, and the technology of performing the work.
rights shall not be abridged or modified except as specifically provided for by the terms of
PERSONNEL POLICES AND
The County has a manual regarding personal policies and
procedures which is designed to
"acquaint employees with Green Lake County and provide them with information concerning
employment. . . . The policies and procedures outlined in this manual shall apply to all
Green Lake County except where collective bargaining agreements have specific provisions
conflict. In this instance, the collective bargaining agreement shall prevail for those
affected by that agreement only." The County's personnel policies and procedures manual
a provision, regarding employee discipline, amended in June, 2001, to include the following
SECTION 16 - EMPLOYEE
Section A -
A.01. The purpose of discipline is positive
and intended to correct unacceptable job
performance. Disciplinary action is intended to be administered in a corrective fashion
on employee rehabilitation, rather than on punishment. The County will attempt to inform
employee of standards of conduct and performance, which are expected. Because every
performance criteria which may make disciplining an employee necessary cannot be listed,
employee is expected to conduct him/herself in a manner that is appropriate to the workplace
However, the following examples are offered below to help clarify the types of issues that
grounds for disciplinary action. They are, but not limited to:
A. incompetence or
unacceptable work productivity;
B. Dishonesty or
falsification of records;
C. failure to follow
D. theft, disorderly or
immoral conduct which brings disrepute or which reflects on the
County as an employer including, but not limited to, conviction of a felony, misdemeanor
or violation involving moral turpitude;
E. use of intoxicants
while performing assigned duties, or misuse of intoxicants while not at
work which interferes with job performance or efficiency;
F. use of drugs (other
than prescribed by a physician) while performing assigned duties, or
use of drugs while not at work which interferes with job performance or efficiency;
G. willful misconduct or insubordination;
H. unauthorized use or
abuse of County equipment or property including carelessness or
negligence in handling or control of equipment or property;
I. discourteous, insulting, abusive or inflammatory conduct toward the public, a fellow
employee or fellow employees;
J. absence without leave or authorization, including habitual tardiness;
K. acceptance of any
gift, favor or service that would improperly influence an employee;
L. leave used for a
purpose other than for which it was requested and granted;
M. personal appearance
of such a nature which causes discredits to the position held and to
the department to which the employee is employed in accordance with Sec. 103.14(2) of
the Wisconsin Statutes;
N. violations of this
Personnel Policy Manual or Departmental Rules;
Q. other circumstances
warranting disciplinary action;
against members of the public or fellow employees based on race, color,
creed, sex, national origin, or handicap;
Section B - Discipline
Procedure - Discipline shall be applied to all
Normally, when disciplinary actions are required, the concept of progressive discipline will
followed; however it must also be understood the degree of disciplinary action will
match the severity
of the infraction. Therefore, depending upon the severity of the offense,
the action chosen by
management may involve immediate application of one or more of the progressive steps
including immediate discharge, if warranted. Repeated infractions of even minor
offenses can and
will result in increasingly severe disciplinary actions. Unless there are mitigating
normal sequence of discipline will be:
A. First offense - the
employee will be given a verbal reprimand in private. The Department
Head or immediate supervisor shall give the employee the reason for being disciplined and
also the manner in which the employee shall correct their problem in the future.
offense - the employee shall be given a written reprimand with a copy to the
Administrative Coordinator. The written reprimand shall be signed by the Department
Head or immediate supervisor and by the employee who is acknowledging receipt. A copy
shall be provided to the employee and will give the rule or policy violated and a manner
to improve performance. Written reprimands shall be placed in the employee's personnel
offense - the employee shall be suspended for up to three (3) days without pay by
the Department Head. Suspensions shall be discussed with the Administrative
Coordinator, Governing Committee Chair/Personnel Representative for that governing
committee and the Corporation Counsel/Assistant Corporation Counsel, before such
actions are taken.
offense - the employee may be discharged by the Department Head, followed by
a letter to the terminated employee and placed in his/her personnel file. Before any person
is discharged, the matter shall be reviewed with the Administrative Coordinator, the
Governing Committee Chair/Personnel Representative and Corporation Counsel/Assistant
Corporation Counsel. The County Personnel Committee will be informed of suspensions
and terminations. In the event that immediate dismissal action is required and the
Administrative Coordinator and the Chair of the Governing Committee cannot be
reached, the employee shall be suspended pending investigation.
B.1. In situations involving Department
Heads, the Governing Committee Chairperson and the
Administrative Coordinator shall administer the disciplinary procedures as outlined in this
Javier Dimas (hereafter Dimas) was first employed by Green Lake County,
Health and Human Services (hereafter Department or County) as a limited-term employee in
position of Alcohol and Drug Abuse Counselor, on September 27, 1999. Dimas was paid
hour in his LTE position and the County paid him no other benefits/compensation. Dimas
responded to a newspaper advertising for the limited-term position which described it as
ALCOHOL AND DRUG ABUSE
Green Lake County has a vacancy for a Limited-Term Alcohol
and Drug Abuse Counselor
position (14 hours per week) within the Department of Health & Human Services.
doing alcohol and drug assessments, individual and group counseling, case management and
mental health counseling. Must have a Bachelor's Degree in a Human Services related field
certified as an Alcohol and Drug Counselor in Wisconsin. Wage is $17.96 per hour.
applicant will be required to undergo County-paid physical exam and drug screen prior to
appointment. Applications must be obtained from the County Clerk's office, 492 Hill St.,
3188, Green Lake, WI, 54941-3188, (920) 294-4005, between 8:30 a.m. and
4:30 p.m., Monday
through Fridays. Applications must be returned to the County Clerk no later than 4:00 p.m.
25, 1999 for consideration. Equal Opportunity Employer.
Dimas worked in the above LTE position until January 26, 2002, when the County
a letter hiring him for regular full-time employment in the position of Alcohol and Drug
at the County with a starting hourly wage of $16.78 per hour, a Class V under the labor
pay scale. The letter also stated that Dimas would receive this pay rate until he got his
degree, at which time he would be eligible to move to a Class VII of the pay scale. The
employment also stated "the position still requires a Master's degree in Social Work,
related fields." 1/
1/ At the time of his hire by the County,
Dimas did not have a Bachelor's or a Master's degree. The County
was aware of this when it hired Dimas. Dimas had had experience as a counselor since
August of 1990 in various
positions and he was certified in AODA counseling.
The position description for Alcohol and Other Drug Abuse Counselor at the County
relevant part as follows:
PURPOSE OF POSITION:
Provides outpatient AODA assessments, case management,
counseling and education to individuals, families and groups.
DUTIES AND RESPONSIBILITIES:
About 20% of this position's time is spent
providing alcohol and drug abuse assessments
(voluntary, intoxicated driver program, underage drinking
violators, etc.) for individuals referred to the clinic and provide
for appropriate treatment and
aftercare services. This includes the development of treatment plans.
Approximately 25% of this position's time
is spent providing individual and group counseling
(Intensive Outpatient Treatment), Aftercare programming or mental health counseling).
Approximately 50% of the time is spent
providing case managementservices to alcohol and
drug abuse or mental health clients. This includes functioning as a member of the Crisis
Team by providing 24 your [sic] a day coverage on a rotating basis approximately every 6th
for mental health, alcohol and other drug emergency situations.
The remaining time is spent attending clinic
and crisis weekly staffings and meetings with the
CSU Manager/Clinical Supervisor to discuss client treatment goals and objectives. Also
maintaining accurate and timely Clinical records on client contacts and training.
B. Marginal or Non-essential
WHILE PERFORMING ESSENTIAL FUNCTIONS: Over
75% of the work done is inside. In unusual circumstances, situations may develop where
there is a
threat of physical attack or injury from clients.
EQUIPMENT USED TO
PERFORM ESSENTIAL FUNCTIONS: Telephone, copy
machine, calculator, computer terminal and related software, fax machine, dictation
NEEDED (EDUCATION SKILLS): A Master's Degree in a Human
Services field required with an emphasis in alcohol and drug abuse counseling; Wisconsin
as an Alcohol and Drug Counselor required and Intoxicated Driver Program required;
certification as an Independent Clinical Social Worker preferred; the ability to understand,
provide directions; reading, writing (reports) is necessary. Additionally, it is important to
considerable clinical experience and communicate effectively with staff, community
agencies and general public. Must have a valid Wisconsin Driver's License and access to an
This position description has been prepared
to assist in defining job responsibilities, physical
demands, working conditions, and needed skills. It is not intended as a complete list of job
responsibilities and/or essential
functions. This description is not intended to limit or modify the
rights of any supervisor to
assign, direct, and control the work of employees under supervision. The county retains and
any and all rights to change, modify, amend, add to or delete, from any section of this
it deems, in its judgment to be proper.
Dimas stated that his initial meetings with either adult or minor clients for AODA
and his Intoxicated Driver Program (IDP) assessment, the latter conducted for adults only,
take 1.5 hours. As a general rule, the intake is done by the Receptionist (Roxanne Haedt) so
general information is provided to Dimas prior to the start of the initial meeting. Dimas then
the adult or minor client together with their significant other or family and explains his
he will do, what they are expected to do as clients/family and he explains confidentiality laws
releases. Dimas then talks to the client alone, employing certain assessment tools. Dimas
herein that he regularly used a Youth Assessment Tool, Union Exhibit 16, which he had used
prior employer to complete assessments for minors and adults regarding AODA issues. This
a section entitled "Family Information" which asks the minor child's family:
Has child suffered any of the following?
(Page 2, Union Exhibit 16)
Under the section "Social Adjustment," the form asks:
Child's sexual orientation:
None of the questions seeking sexual information on this form is addressed to the
minor child; all such
questions are addressed to family members. Dimas stated that in his initial interviews with
he always asks more questions than those listed on Union Exhibit 16 of both minor and adult
that he asks all clients, including minors, about their sexual activity and their sexual
because this is "standard procedure in AODA." However, Dimas
stated that if a client tells him that he/she is seeing another counselor, Dimas will cease
further regarding sexual relationship issues. Dimas also admitted herein that the State of
does not mandate sexual orientation questions to complete its mandated AODA assessments.
After interviewing the client, Dimas then sends the client out to the reception area to
the "SASI tool" in the lobby area. Dimas then calls in the family or significant other of the
minor/adult client and speaks to them for 20 or 30 minutes, asking them questions using
Exhibit 16. Dimas stated after his meeting with the family, he brings the client back in and
recommendations, receives releases from the family and makes a treatment plan
2/ Dimas stated that he does not tell his clients or their families that he cannot decide upon
treatment plan on his own, but he does explain that he is "involved in staffings." Dimas then
a copy of Union Exhibit 16. Dimas also stated that at the end of these meetings, he dictates
necessary information for a staffing of the case with Case Manager Lynn Marsh and Dr.
psychiatrist in charge of County mental health programming. This staffing document
recommendations for a treatment plan for the client.
2/ Dimas stated that he asks the client and
family to sign the treatment plan, apparently at the end of the initial
meeting with the client and family.
In his AODA position, Dimas also regularly taught Underage Alcohol Education
classes for persons under 18 years of age who had been referred/mandated by a court or a
attend. Dimas held these classes one-night per week for four weeks, 2.5 hours per meeting.
usually had 10 students per class. Dimas would require two or three male students per night
submit to a urine test in the bathroom in his presence. A County female employee would
urine tests of the female students. When Dimas taught these Underage Drinking classes, he
homework to the students and completed all paperwork for these classes, but he was not a
or expected to take and maintain file notes on the clients in the classes. Dimas admitted he
tried to make his students feel at ease in class.
Dimas stated that every Tuesday, staffings would be conducted by Dr. Ambas
recommendations for AODA client treatment plans, at which time Dr. Ambas would ask
and authorize same. If the client was to be referred outside the County, Dimas was expected
arrange for the referral; if the client was scheduled to see Dimas or another County
counseling, Dimas would then schedule an appropriate appointment for the client.
Dimas received several disciplinary warnings as well as a suspension prior to his
on August 16, 2002. The first incident involving Dimas occurred on February 5, 2002.
Health and Human Services Deputy Director LeRoy Dissing (Dissing) received a phone call
Mrs. Loomans, the mother of a young man mandated to take Dimas' Underage Alcohol
Program beginning in early February, 2002. Mrs. Loomans was upset; she told Dissing that
felt demeaned by Dimas' treatment of him on February 5, 2002. According to
Loomans described the incident to Dissing as described below in a letter her son sent to
McMonigal 3/, as follows:
. . . I went to the first class with Mr. Javier Dimas on February
5th, 2002. He then informed
everyone that a urine sample [sic] given. He stood behind me as I tried to give him the
could not as he was standing right behind me. When I explained to him that I couldn't
him standing right behind me, he replied "that he would help me if he could find a tweezers
small penis." I want to point out that everyone else in the class had their own stall, except
He then told me that if I could not urinate, I must be "dirty". I informed Mr. Dimas that I
dirty, but that I couldn't urinate with someone standing right behind me. He then replied,
for the $50, because if you can't piss for me then I won't let you back in my class, and I
will have a
warrant put out for your arrest". I stayed after class to try to give him a urine sample, but I
unable to. . . .
I feel Mr. Dimas humiliated me in front of
other people with, his sexual comment about my penis.
I am hoping that this matter can be taken care of, and there will not be a warrant put out for
arrest. Thank you again for your time.
. . .
In her conversation with Dissing, Mrs. Loomans told Dissing that her son refused to
Underage Program until Dissing assigned a different counselor.
3/ Judge McMonigal had ordered Mrs.
Loomans' son to attend an Underage Alcohol Education Program as
part of a court case against him.
Dissing asked Dimas about this incident. Dimas admitted making the penis comment
alleged and apologized for his remarks. Dissing told Dimas the comment was inappropriate
and he did not expect Dimas to make such comments again. On February 26, 2002,
a copy of a letter from the Judge (enclosing Loomans' letter) who asked Dissing to respond
Loomans' complaint. 4/
4/ Neither Mrs. Loomans nor her son testified
On March 4, 2002, Dissing responded to Loomans' written complaint to Judge
(including Dissing's findings after hearing Dimas' side of the story) as follows:
. . .
In response to the letter you sent to Judge W. M. McMonigal
expressing concerns over Mr.
Javier Dimas, I did discuss those with Mr. Dimas and found that the remarks he made were
inappropriate. I can assure you it will not be repeated. The understanding relayed to me by
Dimas was that you were given at least four opportunities over a 2 and a half hour period to
a urine sample. You were allowed to use a bathroom stall and there were two other
juveniles in the
bathroom when Mr. Dimas, in frustration, made the remarks stated in your letter.
Mr. Dimas apologized to your mother over
the telephone on February 6th and it was my
understanding that you and your mother were going to meet with Mr. Dimas and
myself on February
13th to discuss how you were going to meet the educational requirements
for the Underage Drinking
citation you received. I had discussed with your mother the possibility of her attending the
with you that Mr. Dimas was offering. Short of that, I believe we might have discussed
potential possibilities. However, neither you nor your mother appeared for the meeting.
Furthermore, it is my understanding that you failed to keep several appointments for
. . .
Dimas stated herein the following regarding Mrs. Loomans' son's attendance at his
5, 2002 Underage Alcohol Education Program class:
1. Dimas requested a urine sample from Loomans and another
male in the bathroom at
the first of two breaks during the class and Loomans could not give a sample at that
time. Dimas gave Loomans water to drink.
2. At the second class break, Dimas took Loomans to the bathroom
again. No one else
was present. Dimas again requested a urine sample of Loomans. Loomans could not
urinate. Dimas had Loomans drink more water.
3. Dimas give Loomans a third chance to urinate on February
5th. No one else was
present in the bathroom. Still, Loomans could not urinate. Dimas give Loomans
4. At 9:00 p.m. Dimas took Loomans again to the bathroom.
Dimas admitted that he
made the penis/tweezers statement (quoted above) while he stood behind Loomans.
Dimas stated he did so in an effort to motivate Loomans to give a urine sample. Two
other males were in the bathroom at the time.
5. On August 3, 2002, Dimas apologized to
Loomans for his comment.
On April 11, 2002, Janelle Kahn called Dissing to complain about inappropriate
comments Dimas made to her during an initial meeting with Dimas on an Intoxicated Driver
assessment. 5/ Dissing asked Kahn to put her complaint into writing. On April 12,
wrote Dissing the following letter:
. . .
On April 3rd, I had an
appointment with Javier Dimas for an AODA individual Assessment. I
don't know how this talk or behavior has to do with alcohol assessment. Javier ask [sic] me
if I had
a boyfriend or if I was married? I answered no! So he ask [sic] if I liked women? No, I
told me I did too. That I also was a lesbian. I told him I wasn't.
He also told me that my husband
left me because I cheated on him and that also wasn't true. Then he asked how I get my
(How do I get off.) I told him I didn't think it was any of his business. He also commented
take strays home from the bars. I don't. I finally broke down and told him
I've got a friend I can call.
I don't find his behavior appropriate. I'm
very disturbed by this. I left his office and went
down by Nancy with jobs. She was going to get me a ride to Life Skills where I had an
with my counselor. I was asking Nancy about what kind of person Javier was. I went to my
counselor. I told her what happened. I sat with her for an hour crying. This man is sick
help. I know he's been doing this at least 2 years. And thats to [sic] long. He also said
going to leave me. Whatever that ment [sic].
. . .
5/ Dimas admitted herein he had no authority
to revoke Kahn's driver's license or otherwise adversely affect
Kahn in the processing of her IDP assessment.
Dissing stated that he interviewed Kahn regarding her complaint and that he then
Dimas about it on April 22nd. At this time, Dimas admitted asking Kahn
about her sexual orientation
as part of her AODA assessment, but he denied making any other statements Kahn
alleged he had made in her complaint. Dissing then decided to investigate Kahn's
Dissing spoke to Kahn's counselor, Wendy Reha of Life Skills Behavioral Services on May
and he made notes of their conversation. Dissing's notes of his May 1, 2002, conversation
were submitted into the record in this case (Union Exhibit 25). Dissing's notes confirmed
notes of her April 3, 2002, counseling session with Kahn (County Exhibit 7). Reha's notes
that Kahn reported to her that on April 3, Dimas:
1. Asked if Kahn had a man in her life;
2. How she got her _____ _____;
3. Asked if Kahn played with herself or was a lesbian;
4. Called Kahn a drunk and a liar.
Reha also testified herein and confirmed the above statements were made by Kahn to
a counseling session on April 3, 2002, and that she (Reha) told Dissing that Kahn was very
distraught, visibly tearful and crying when she recounted the above to Reha. Reha stated that
counseled Kahn for approximately five months prior to April 3, 2002; that she (Reha) had
Kahn to make up stories; and that she believed Kahn's responses to her on April
3rd were true. Reha
stated that Kahn's not regularly taking her medication would not have affected Kahn's recall
contact with Dimas, in Reha's opinion. Reha stated that she did not recall Kahn making a
to her regarding getting her knees bent or needs met on April 3. Reha also stated herein that
her later counseling sessions with Kahn, Kahn's conversation with Dimas came up because,
believed, Dimas' comments were still bothering Kahn. Reha also stated that in her
opinion, Dimas' comments were unprofessional and inappropriate. 6/
6/ Reha was referring to Dimas' comments 1,
3 and 4 above.
When Dissing issued the discipline to Dimas, he had Reha's file notes (County
Exhibit 7), his
interview notes and Kahn's letter of complaint (County Exhibit 5) before him. Dissing also
interviewed Kahn's employment counselor, Jackie Westover. Dissing's notes of their
showed that Westover (who did not testify in this case) refused to comment on Kahn's
stating that Kahn had shown poor judgment. Dissing stated herein that Dimas' comments to
were, in his professional opinion, degrading and inappropriate and should not have been
made in the
context of an AODA assessment. 7/
7/ Dissing is not a certified AODA
Sometime in March or April, 2002, Mrs. Jeffers called Dissing to complain about
treatment of her minor daughter, J.V. 8/ Mrs. Jeffers complained to Dissing that her
her that Dimas had made the following statements to J.V. during an AODA assessment
after-care counseling following J.V.'s 21-day residential treatment program: 9/
1. Dimas stated that J.V. was well-developed and attractive for her
2. Dimas asked her if she was sexually active, whether she used
protection and who
were her partners;
3. Dimas stated that J.V. should not settle down with one guy until
she reached 18 so
that older guys could have a chance with her;
4. Dimas stated that J.V. wanted to have sex with her mother's
boyfriend who was a
5. Dimas offered to take J.V. to an AA meeting and then out for
8/ Mrs. Jeffers' minor daughter's initials will
be used to protect her identity. Both Mrs. Jeffers and J.V.
9/ During this time,
Dimas saw J.V. 8-10 times (2 times per week for 4 weeks) in March and April, 2002 for
after-care following residential treatment.
J.V. confirmed herein that Dimas made the above-listed comments to her during her
counseling session with him. J.V. also stated herein that when Dimas asked her out for
coffee it made
her very uncomfortable because she felt he was asking her for a date. J.V. stated that she
boyfriend about Dimas' comments and her boyfriend told her that they were not appropriate.
stated that she saw Dimas for one more session after he had asked her to meet him at the AA
and go out for coffee. J.V. stated she did not show up for the "date."
J.V. stated that Dimas never used vulgar language with her, never got angry at her
she failed to show up for AA/coffee), that he never threatened her and never touched her
he had brushed up against her once. J.V. stated that she thought she had to go to counseling
meetings with Dimas because of the supervision she was under for her alcohol and other
problems. Mrs. Jeffers stated herein she did not believe that Dimas got any releases which
have allowed him to talk to J.V. about her boyfriend, who had been one of Dimas' clients in
After Dissing received the complaints from Mrs. Jeffers, J.V. and Kahn, he spoke to
about them. Dissing told Dimas that the people involved were upset and that Dissing
complaints that had been lodged against Dimas. 10/
10/ The record facts do not indicate Dimas'
response to Dissing concerning the assertions of Mrs. Jeffers and
J.V., however, he testified regarding this incident herein.
Dimas stated herein that during their after-care counseling sessions, J.V. told him she
sexually abused. Dimas also stated that J.V. discussed her stressors at home, including the
of her mother and her mother's boyfriend. Dimas said that although he was required by law
child abuse, he did not report J.V.'s being sexually abused. Dimas stated that he did not
discussing J.V.'s mother and her boyfriend with J.V. and that he did not remember if he had
from the mother and the boyfriend in J.V.'s file. Dimas admitted he asked J.V. to go to an
meeting with him (intending to introduce her to other women there) but he denied that he
to go out for coffee afterward. Dimas denied comments 1, 3 and 4 above. Regarding
above, Dimas stated he asked J.V. only about her sexual orientation, as was his practice.
Dissing issued the following written reprimand to Dimas on May 21, 2002, 11/:
. . .
Since the beginning of this year, the Department has received two
complaints from clients that
you have counseled in which you made inappropriate comments towards them. These clients
significantly upset because the comments were viewed as sexually inappropriate. When the
complaint came to my attention, I discussed with you how inappropriate and unprofessional
comment was. You apologized to the individual. However, I had to send a letter to the
a copy to the Court formally apologizing on behalf of the agency for the comment you made.
provided you with a copy of the letter as well so that you would know how serious this
being taken. Nevertheless, I received another in April in which the client alleges you made
inappropriate sexual comments to her. I have shared with you her complaint and find no
explanation as to why you made the comments.
cannot and will not
tolerate inappropriate comments being made to clients.
As a professional, you should be very aware of what is appropriate vs. inappropriate
Clients come to this agency because they need some kind of assistance. Your conduct in
instances was definitely more detrimental than helpful. Your behavior not only reflects badly
as an employee but on the agency as a whole. You are being reprimanded for having made
inappropriate comments and you will cease from making them in future. If the Department
receive any additional complaints of this nature, you are hereby put on notice that you will at
minimum be suspended without pay for three days and/or discharged from employment.
takes these types of complaints very seriously.
In an effort to prevent this from re-occurring, you are directed:
(1) to attend a Boundaries and
Ethics training on June 21st, 2002 from 8:30 a.m. to 12:30 p.m. in the
basement of the Green Lake
County Sheriff's Department; (2) apologize to the client whom you made inappropriate
to, and (3) review HFS 94 Client Grievance procedures. These tasks should be completed
by the end
of June. Documentation will be attached to this memo verifying completion.
. . .
On May 31, 2002, Dissing sent Dimas an e-mail which read in relevant part as
. . .
Additionally, you are not to have any involvement with the cases
in which I have received client
complaints regarding you. This includes discussion of these cases with other workers who
continue to have involvement (Marsh & McGlone). I am also warning you to cease
statements that could be construed as retaliatory or insubordinate (see examples highlighted
12/ Further statements of this nature may result in disciplinary action.
. . .
Dimas filed a grievance contesting the amended May 21, 2002 written reprimand. The
Corporation Counsel John B. Selsing, denied the grievance at Step 3 on July 15, 2002, as
. . .
The Green Lake County Personnel
Committee denies Mr. Dimas' request to have the reprimand
stricken and removed from his record. It was clear that there was an initial client complaint,
Mr. Dimas admitted to and apologized to. This initial complaint alone could have warranted
reprimand based upon the seriousness of Mr. Dimas' conduct. Mr. Dimas is a professional
Department and needs to conduct himself in that manner at all times. He is working with
that come to him with problems and expect to receive some professional help. In addition,
number two's complaint was given initially orally to Mr. Dissing and was later given in
individual gives some very clear and detailed accounts of comments made by Mr. Dimas,
grossly inappropriate. It was also pointed out that this client saw her counselor immediately
leaving Mr. Dimas, and the counselor's records indicate how upset his client was and made
to Mr. Dimas' inappropriate comments.
As you are aware, there has now been subsequent complaints
from clients regarding comments
or actions by Mr. Dimas. The purpose of the reprimand was to point out inappropriate
direct the employee to stop this type o£ conduct. If Mr. Dimas would have simply
reprimand and altered his conduct, I'm sure that would have taken care of the situation. It
that Mr. Dimas is not taking the reprimand as intended, which is a warning or wake-up call
I also feel an obligation to advise you and
Mr. Dimas that this subsequent group of complaints
will be dealt with and, if it is felt they are substantiated, will result in additional discipline.
. . .
11/ Dissing had originally issued this written
reprimand, including the J.V. incident, but after the Union
complained that Dissing failed to investigate Mrs. Jeffers' oral complaint until early June,
Dissing withdrew the
J.V. incident, rewrote the reprimand and issued it on May 21st, as quoted
12/ There were no
"examples highlighted below" on the record copy of this e-mail.
The next complaint, dated June 20, 2002, regarding Dimas' work came from the
and it read in relevant part as follows:
We are writing to file a formal complaint against your employee:
Havier [sic] Dimas AODA
counselor. Our 15-year old daughter, J.M. 13/, who is currently under the supervision of
[sic], was referred to him for an assement [sic].
On May 20, 2002 our daughter had an
appointment with Javier for an assessment. She was
called into his office, and after talking to him he sent her out to the waiting room and had
parents come in and he told us he was going to have her admitted to Libertas in Green Bay.
felt she needed a rehab atmosphere? Before he brought her in he told us he was going to
admitted to Libertas as he felt she needed a rehab atmosphere.
Before he brought her in his office
he told us he did not want us to tell her until about
one week before she left because he was afraid she might run. After she came in the first
thing he told
her was that she was going to be admitted to Libertas, after he had just told us not to tell
I believe it was on June
4th or 5th 2002 when he contacted me (her mother) and
me he was setting the admission date for June 10th 2002 to Libertas. We
were to have her there at
2 P.M. to do the admittance paperwork.
J.'s dad, Dan is disabled. We also have three other
children, two with minor
disabilities, and we do not have any type of child care available, so therefore not only did we
drive to Green Bay, we had to bring along our other three children.
When we arrived we went into the
admittance office and within 10 minutes we found
out J. was not going to be admitted, because Javier never set up the admittance through our
Assistance. We also found out at this time that she would not have been admitted anyway
due to the
fact that she did not have any previous out-patient treatment for drugs and alcohol.
13/ The minor's initials will be used
Mr. and Mrs. Meyer also characterized Dimas' error as "big" and "crucial," in their
complaint and they asked that the County take "some disciplinary action" against him and to
reimburse them for gas and their daughter's lost work time caused by Dimas' failure to
complete the referral to Libertas.
Dimas stated herein that he met with the Meyer family on May 20, 2002, for an
meeting, at which time he followed his usual procedure for an initial meeting described
stated that at the end of the initial meeting with the family, he recommended that the Meyer
enter a 28-day residential program at Libertas located in Green Bay, Wisconsin. Dimas
Meyer what kind of insurance she had and she said Medical Assistance. Dimas then
paperwork, got releases and explained that he had to call Libertas to see if a bed was
available for the
residential program and that the family would get a call from the director of Libertas to
arrangements. Dimas completed the Youth Assessment/Diagnostic Summary form (i.e.,
Exhibit 18) used by the County for the client and submitted this to a staffing with Dr. Ambas
Lynn Marsh on May 31, 2002. Dr. Ambas approved the 28-day residential treatment
by Dimas for the Meyer daughter.
Dimas stated that Receptionist Roxanne Haedt filled out the top portion of the
form, but that he completed the form in his handwriting. On the form (Union
Exhibit 20), were sticky
notes from Roxanne to Dimas indicating that the form "needs to be filled out in order to get
visit paid" and that Roxanne had given the form back to Dimas on 5/23/02 "to fill out."
admitted that on or about May 28th, he received a memo from Case Worker
Lynn Marsh which stated
that the Meyers " . . . need MA qualifier of 30 days for payment." 14/ Dimas was
prepare the paperwork and arrange the details of the client's admission to Libertas after
14/ "MA" refers to Medical
On June 28, 2002, Dimas received an e-mail from Dissing indicating that there would
meeting on July 1 to discuss a client complaint which had been filed against Dimas. Dissing
mention who had filed the complaint in the e-mail. Dimas stated herein that he had a feeling
the Meyer family who had complained, so he called them at home several times but no one
Dimas stated that Mrs. Meyer eventually answered the telephone. Dimas asked if they had
complaint against him, and if so, with whom and why. Mrs. Meyer replied that they
had filed a
complaint with Dissing because their daughter was refused admission to Libertas and they
it was due to Dimas' failure to properly complete the referral forms; and that they were
reimbursement for their mileage to Green Bay for the wasted trip. Dimas asked if the family
attend a staffing on their complaint that he would arrange at Green Lake County at
1:30 p.m. on July 1st. The family agreed. On Saturday, June
29th, Dimas stated that he went then to
the Meyer home unannounced to discuss their complaint again and try to get it resolved.
family let Dimas in and discussed their complaint again with him.
On Monday, July 1, there was a morning staffing among Department employees at
Dimas indicated that the Meyers had filed a complaint against him and that they had agreed
in for a staffing at 1:30 p.m. that day to discuss it. Dimas also told Dissing that he had gone
Meyer home on Saturday and that they had agreed to attend the staffing regarding their
Later in the day, Dimas met with Dissing and Linda Van Ness, at which time Dissing
that he had canceled the meeting with the Meyer family and that he and Van Ness were
the Meyer complaint. Dissing then asked Dimas about the referral process, why Dimas had
followed through on the denial of the Meyer daughter's referral. Dimas explained that he
to Lynn Marsh and because Marsh was the case manager there was nothing that he could
about the failure of the referral to go through and that the Meyer's were upset with Marsh
Mrs. Meyer testified herein that she believed that Dimas had failed to follow through
properly set-up the recommended treatment at Libertas in Green Bay for her daughter; that
told her that Dimas had called them with an admission date and they had received
paperwork, but that
Dimas had done nothing to get Medical Assistance to approve her daughter's residential
at Libertas. Mrs. Meyer stated that she did not hear from Dimas again until he called
3.5 weeks after the incident that led to her complaint. Mrs. Meyer recalled that
Dimas asked her if
he could come to the Meyer home to talk about their daughter's case. Mrs. Meyer agreed
visited them that Saturday. Mrs. Meyer stated that her daughter never received the treatment
Dimas recommended and that the County ultimately reimbursed the Meyer family $38 for
Dissing stated herein that Dimas should have contacted the Medical College of
insurer for the Meyers) about the Meyer daughter's treatment to determine coverage; that he
(Dissing) scheduled a meeting with Dimas regarding a complaint for July
without identifying the complaining parties; that Dissing then learned that Dimas had
called the Meyer
family and had gone to the Meyer home on June 29th without authority
from the County. Dissing
noted that Dimas' job description does not authorize him to make home visits. Dissing
however, that there is no written rule at the County that states that employees cannot visit
On July 25th, County Child Welfare Supervisor Susan Sleezer called
Dissing at home and
asked if minor T.P. 15/ was in Dimas' Underage Alcohol Education Class; Sleezer stated
Manager Lynn Marsh had told her that on June 28th, she (Marsh) had heard
Dimas ask T.P. (Dimas'
nephew) if he (T.P.) wanted some "candy" referring to a bowl full of condoms that Dimas
kept in his
office. Dissing stated that he then called Lynn Marsh to confirm Dimas' actions/statement as
to him by Sleezer and after having done so, he called the Berlin Police Department to get a
a police report which indicated that T.P. had been charged with sexual assault of young
June 28th, which report indicated that T.P. admitted he had gotten
the condoms from his uncle, Javier
15/ The initials of the minor are being used
Dissing stated that although there was no County Policy against counseling a relative,
opinion, it is not appropriate professional practice to do so. Dissing also stated that there
professional reason for Dimas to give condoms to his clients; that these are available through
County Health unit Nurses' office which requires some health education regarding condoms
Dissing stated herein that on July 30th, he and Dr. Ambas counseled
Dimas about giving out
condoms to his nephew. Dimas showed Dissing where he kept the bowl of condoms in his
Dimas stated that he had gotten the condoms from Planned Parenthood in Milwaukee and that
distributed condoms at his prior employer. Dissing and Dr. Ambas stated that they both told
to remove the condoms from his office, and that Dimas' distribution of condoms was
(Dimas stated that only Dissing, not Dr. Ambas, told him to remove the condoms from his
Dimas stated that he did not think there was a conflict of interest in his teaching his
Underage Alcohol Education classes; that the County had no policy against keeping and/or
distributing condoms. Dimas stated that when T.P. was in his office, Dimas noticed T.P.
the bowl of condoms on his bookcase. Dimas asked T.P. if he wanted some condoms but
no. Dimas denied herein he ever gave his nephew condoms.
On July 3, 2002, two days after his meeting with Department Director Van Ness and
regarding the Meyer complaint, Dimas stated that he called Jody Halfon at the Medical
Wisconsin (MCWI). Dimas stated herein that he called to inquire regarding the
proper protocol for getting a residential treatment facility referral approved under
In his conversation with Halfon, Dimas indicated that he had received a complaint from
had been refused a referral to residential treatment by MCWI; Dimas asked that the Medical
put in writing the real reason for the denial of the referral (which he believed was because
believed that the Meyer daughter did not need services). According to Dimas, Halfon stated
needed a copy of the client complaint and she would be happy to put in writing the reason
denial of the referral.
On July 23, 2002, Dissing issued the following written reprimand and one-day
notice to Dimas:
. . .
On Wednesday, June 26th,
2002 I received a client complaint regarding what the parents' felt was
your lack of follow through on their daughter's admission to an inpatient treatment facility in
Bay on June 4th. The fact that their daughter had the type of insurance that
and that this was not gotten prior to June 4th (and it in all likelihood would
not have been approved
by the insurance company anyways) resulted in their daughter not being admitted.
family (parents and all three children) made the trip to Green Bay when they did not have to.
and their daughter were inconvenienced in a number of ways. They are requesting
for their expenses.
In reviewing their complaint, discussing it
with them, their child welfare case manager (Lynn
Marsh), the outpatient clinical supervisor (Jim Hill) at the treatment facility in Green Bay,
Haedt (our Account Clerk), a review of the daughter's chart and discussion with you, the
facts come to light:
1) Lynn Marsh referred the
adolescent female to you for an alcohol and drug assessment in May
2) You performed the alcohol
and drug assessment on May 20th, 2002 recommending residential
3) On May
25th, 2002, you signed an insurance form indicating you had done an
This was to bill the insurance company for the assessment. That form indicated that the
Medical College of Wisconsin (MCW) covered the client, which is an HMO for Medicaid.
4) You arranged for admission
to the residential treatment facility for your client by discussing
the admission with Jim Hill, faxing up to them your assessment and other paperwork. You
told Mr. Hill that the family was on Medical Assistance but not on an HMO.
5) You told the family that
their daughter was ready for admission on June 4th, 2002.
6) After you learned from Lynn Marsh that the
facility did not admit her, you called Mr. Hill and
he informed you of the reasons for denying the admission.
7) Lynn Marsh told you that
the family was unhappy with how you had setup the admission and
that they did not feel their daughter probably warranted inpatient treatment.
8) I informed
you on Friday, June 28th that I had a client grievance that I wanted to
with you on Monday, July 1st at 1:30 p.m. I did not provide you with the
name of the client.
did not contact the family until June 28th, 2002 at 6 p.m. by telephone to
them their concerns. You setup a meeting for Monday, July 1st at 2
p.m. to try to resolve
their complaints. You told them the meeting would involve Lynn Marsh and his [sic]
supervisor (LeRoy Dissing), neither of which was consulted regarding this. In fact, Ms.
Marsh was on vacation July 1st.
10) You went to the client's
home on Saturday, June 29th, unannounced after calling them three
times unsuccessfully, because you wanted to discuss with them their complaints before
I deliberately did not provide you the name
of the client on June 28th so that I could discuss with
you in detail the client's complaint on July 1st. I did not want you
contacting the client, as this is not
the process for handling client complaints. This process was given to you and your union
representative in May and I again gave you another copy July 1st. While
you accept little culpability
in these issues, you did state it was your responsibility to ensure that admission to the facility
order, including getting the approval for funding. I realize that you may not have known
particular HMO for Medicaid, but I expected that you would have found out about it prior to
making the trip to Green Bay, especially since you signed an insurance form (stating who the
was) for reimbursement of the assessment you did.
I find it inappropriate that you waited until
June 28th to finally contact the family regarding their
displeasure over the failed admission to the Green Bay facility. I think it more than
you waited until June 28th to contact the family, the very day I told you I
had a client complaint. I
would have expected that since you had recommended residential treatment, arranged for it
to not follow up with the family when it failed is a gross disservice to the client. You stated
that you felt the client still needed treatment but then waited to follow up nearly three weeks
knew she was not accepted into residential treatment. This is not acceptable.
Furthermore, to go to the client's home
unannounced on a Saturday without any approval was
inappropriate. Your work hours have been repeatedly told to you: 8 am. to 4:30 p.m.
Fridays with the exception of Tuesdays. You
may claim this was your own time, but you were representing the
agency in a case where the
client brought a complaint against you. Your involvement could have been viewed as
intimidating. This was inappropriate and should not have occurred. You have been told
other client complaints to stay away from the clients and their caseworkers until there is
Nevertheless, you took it upon yourself to attempt to resolve what was a formal complaint.
This is the fifth client complaint received
this year regarding your performance in working with
individuals/families. You have been warned and reprimanded regarding inappropriate
made toward clients. This latest complaint continues to illustrate the need to act
providing services and follow through with clients, especially in a timely manner. I am
you for not following up with this client in an appropriate time (nearly four weeks after the
denied admission) and manner (meeting with the family unannounced on a Saturday at their
You will serve a one day unpaid suspension on Wednesday, July 24th.
When you return we will
discuss a corrective action plan that you will be required to complete that will address not
above but also other performance issues. Further instances involving substantiated client
will result in progressive discipline to include additional suspension or dismissal.
Dimas grieved this reprimand/suspension. Dimas stated that he never received a copy
of the Meyer
complaint from the County and therefore, on or about July 23, 2002, Dimas sent Halfon the
. . .
As per our phone conversation on 07/03/2002 and today here is
the complaint by the patient as
a result I was suspended from my work for one day. I truly believe that the referral was
done to the
best of my abilities and overlooked you as the gatekeepers.
Initially I had inquired on the referral
process; Dx, authorization for this diagnosis as parents and
staff at Libertas had stated that they were questioning the referral due to history, per parent's
information to this writer on 06/29/2002. Writer went to client's residence this day to
I have been in a lot of scrutiny for political reasons and wanted to get to the core issue of the
complaint. This is what parents had told me.
I did contact the Libertas Tx. Program on
07/01/2002 and spoke to the intake person of Libertas
LINDA ALTMAN and followed a phone call to you on 07/03/2002. At that time and after
with Lynn Marsh of this agency it
appeared that the chief compliant was the referral process; Dx.
And appropriateness, and lack
of communication on our end to these parents and client.
Now, it has turned into a different
compliant as you will review my reprimand and suspension
Please respond to my
earliercompliant [sic] only of appropriate referral and
meeting criteria as
well your denial due "they don't do their own assessments", "treatment of dual diagnosis"
having a treatment history for mental health issues, which would contradict what case
Marsh and parents statements.
I know your response would really support
my initial inquiry on 07/03/2002. Please call me
before you may fax a report on this, as I would like to keep this confidential.
. . .
Dimas stated that Halfon never sent him anything regarding the proper protocol and
to his letter.
Dissing stated that on or about August 12, he received a call from Jody Halfon of
gatekeeper for individuals covered by the Medical Assistance HMO of the Medical College.
stated that Dimas had called her on July 3rd to discuss protocol, asked if
she had received a complaint
regarding the Meyer referral and requested a copy of same. Halfon told Dissing that she felt
was being set up or placed in the middle by Dimas. Halfon stated that on or about July
called her again and then he faxed his letter (quoted above) and a copy of the
suspension he received from the County also quoted above. Halfon told Dissing she did not
it was appropriate for Dimas to share his reprimand/suspension with outside agencies.
indicated that Dimas' contact of Halfon had neither been authorized nor did the County have
knowledge of it.
On that same day, August 12, Halfon sent the following letter to Dimas and copied
as well as other members of the County management team:
. . .
This letter serves as formal notification that the Medical
Health Services (MCW-BHS) is terminating the contractual provider agreement with you,
cause, as provided for under Section 2.02 of the MCW Provider Agreement.
This termination will become effective 90 days after your
receipt of this notice or on
November 12, 2002. All of the obligations set forth in the Provider Agreement will continue
until completion of this time period.
Any services that you are currently
delivering to our members will continue to be authorized
and reimbursed based on medical necessity and the terms of our Contractual Agreement
90 (ninety) day transition period.
If a member requires care beyond the
transition period, please call or have the member phone
one of our case managers prior to discharge so an alternative referral can be arranged or you
provide us with a list of those individuals requiring on-going care and we will follow-up
them to coordinate services.
We appreciate your assistance and
continued care of our members during this transition
period. If you have any questions or concerns you may contact me directly at 456-5859.
for the services you have provided and best wishes in your future endeavors.
. . .
On August 9, 2002, Dissing sent the following Step 1 response to Dimas' grievance
his reprimand and one-day suspension:
. . .
This grievance is being denied because progressive discipline has
been followed in response to
a series of client complaints received by this agency regarding Mr. Dimas' inappropriate
statements/actions. The following is a summary of client complaints and the action taken:
Date of Client
Complaint Complaint Action
February 6, 2002 Inappropriate
Statements Handled Informally/Warned
April 2, 2002 Unprofessional
Comments Discussed with Mr. Dimas
April 11, 2002 Unprofessional
April 15, 2002 Inappropriate
June 6, 2002 16/ Inappropriate Follow
up Suspension (1 day unpaid)
I am willing to discuss in more detail the
nature of each of the complaints above. His suspension
was for lack of follow through with a client he had recommended inpatient treatment for and
manner in which he did
attempt to resolve the complaint. This is outlined in the
suspension letter he received. If you
need a copy, please let me know. Given the nature and number of complaints received
Dimas, it is my opinion that the suspension given to him was an appropriate level of
. . .
16/ This date should read July 6,
On August 12, Dissing discussed Halfon's call with Department Director Linda Van
Ness and they
pulled all contracts that the County had with the Medical College of Wisconsin, finding that
were five Department employees who had provider agreements with this HMO. Thereafter,
came to Dissing and asked for the Medical College of Wisconsin provider agreement.
Dimas why MCWI had canceled his (Dimas) provider agreement. Dimas told Dissing that
he did not
know why he had received the letter from Halfon terminating his services and that he was
call Halfon but he could not reach her. 17/
17/ It should be noted that the contract
between the County and Medical College of Wisconsin allowed the
Medical College to terminate services with the County or any of its employees without
Halfon testified telephonically herein, but refused to answer questions regarding why
Medical College had terminated Dimas' provider contract with the Medical College. Rather,
submitted a January 7, 2003, affidavit regarding the Medical College's termination of its
. . .
Jody Halfon, being first duly sworn on oath, deposes and says as
1. I am the program Coordinator III
for the Psychiatry department of the Medical
College of Wisconsin. I make this Affidavit based on such personal knowledge.
2. On or about July 29, 2002, I spoke
with Mr. Javier Dimas via telephone. In this
conversation, Mr. Dimas requested the Medical College of Wisconsin's assistance in drafting
to his employer on his behalf. Mr. Dimas followed up our conversation with an
updated letter sent
to me. On this date, Mr. Dimas also sent me a copy of his reprimand/suspension dated
July 23, 2002.
3. I did not ask for nor did I seek a copy of this July
23rd reprimand/suspension. I
believed his sharing of this document with me was inappropriate.
4. On or about August 9, 2002, I had
a telephone conversation with Mr. LeRoy Dissing
concerning Mr. Dimas. In this conversation, I indicated that Mr. Dimas had contacted me
for my assistance. I had also told Mr. Dissing that Mr. Dimas had shared his
letter with me.
5. On or about August 12, 2002, I
sent a notice of termination letter dated August 12,
2002 to Javier Dimas at Green Lake County Department of Health and Human Services.
terminated his participation in the Medical College of Wisconsin's Behavioral Health
network effective November 12, 2002 or within 90 days of his receipt of that letter.
6. After November 12, 2002, Mr.
Dimas was no longer authorized to receive patient
referrals or to provide health care services to Medical College patients. As a result of this
termination, Green Lake County would no longer being [sic] able to receive reimbursement
Medical College for Mr. Dimas' health care services after November 12, 2002
. . .
Halfon stated herein that in her opinion, it was inappropriate for Dimas to share with
her his personal
issues with Green Lake County, that no provider had ever shared such information with her
and that she felt uncomfortable with Dimas' sharing his personal information with her.
Halfon stated that this was not part of the basis for the termination of the contract with
Dimas -- as
the contract between the Medical College and providers such as Dimas requires no reason for
termination and Halfon gave none.
Dissing stated herein that Halfon notified him on August 12, that the Medical College
be terminating the provider agreement with Dimas because she felt that Dimas had problems
extended beyond protocol; that he had shown poor judgment and a lack of discretion and that
Medical College would be terminating his provider agreement without cause.
The County requested a meeting on August 16, 2002, with Dimas and his Union
Representatives. This meeting was conducted by Attorney James Macy on behalf of the
There is great dispute regarding what was said and by whom at this meeting. The Union
a CD of a portion of this meeting that Dimas had taped without permission. This CD was
into this record over objection of the County based upon an in-depth brief submitted by the
to show that under Wisconsin law it was not grounds to refuse to admit evidence that a tape
made without the permission of all parties being taped so long as the tape was made by a
present in the room (Dimas).
In regard to the CD, the Arbitrator listened several times to the CD submitted into
here and found its quality extremely poor, such that a great deal of the commentary on the
(mostly Mr. Macy's statements) could not be heard no matter the volume of the CD player.
addition, it is undisputed that Mr. Dimas only taped a portion of the August
16th meeting, the initial
approximately 30 minutes, yet the meeting lasted for approximately an hour or longer.
Based on the
above, I find that the tape is neither a complete nor reliable recording of what was said on
16th. Rather, I have relied for the most part upon the parties' testimony
regarding the content of the
August 16th meeting.
Attorney Macy testified herein that he stated the purpose of the meeting was to get
side of the story regarding recent incidents the County was investigating that arose after the
disciplinary actions were issued against Dimas. Macy stated he asked Dimas about his
failure to earn
B.A. and M.A. degrees, that he asked Dimas about the Medical College referral for the
daughter and about Dimas' contact with the Medical College and the Meyer family after the
family complained. Macy stated that Dimas responded to some of his questions and then
read a prepared statement. Macy then requested responses to his questions, wishing Dimas
reading from his prepared statement. Dimas then asked where the meeting was going.
that he needed to know, that he was not going to answer anymore questions, he wanted his
Rights and his attorney. Macy responded that this was not a criminal investigation and that
had his Union Representatives present to assist him. Dimas reasserted that he wanted to
speak to his
attorney. The parties then took a break in order for Dimas to contact Mr. Theodore Mazza,
attorney. The call was placed to Dimas' attorney who was not present at his firm and Mr.
partner stated on speaker phone that he was uncomfortable trying to counsel Dimas regarding
he should do at the August 16th interview because he was unaware of all
Both Macy and Union Representative Bartel stated that Macy told Dimas during the
that this was Dimas' opportunity to answer questions regarding inappropriate statements
made by him. At approximately this point, the tape Dimas had running ceased to function so
there is no recording of the following exchanges between the parties. 18/
18/ The description herein is based upon a
compilation of Macy and Union Representative Bartel's as well
as Dimas and Dissing's testimony on these matters.
Macy stated the County had questions regarding liability, specifically concerning
distribution of condoms and the treatment of his nephew, as well as teaching the nephew's
Alcohol Education class and then contacting the nephew to try to get him to change his story,
that he had not received condoms from Dimas used in a sexual
assault. Dimas refused to answer these questions. Dimas also refused to answer
the Meyer complaint and his visit to the family at their home. Macy stated again that this
chance to tell his story. Dimas stated that he had something else to do. Macy said this was
and that the County may have to make a decision without getting Dimas' answers. Dimas
that that was fine and he left the room. 19/
19/ Dimas stated that Macy never asked him
about the incidents with Kahn, J.V., his nephew and the condoms
or the Loomans incident.
Union Representative Barry Bartel stated that he was previously aware of the Kahn,
and J.V. incidents as of July 23, and he knew that Dimas had been orally warned and
written reprimands before he received a one-day suspension on July 23. Bartel admitted
by County managers that there were additional complaints which had occurred from May to
Bartel also stated that Dissing had talked to him about the situation with Dimas' nephew
August 16th. On August 16th, Bartel stated that Macy
listed all of the incidents concerning Dimas and
the County's deliberations after Dimas refused to answer and left the room.
Dissing stated that on June 30, he went over everything with Dimas (after their
Dr. Ambas) regarding his nephew, the condoms and the allegation that Dimas had asked the
to change his statement to the police that he (T.P) had gotten the condoms from his Uncle
Dissing also stated that the meeting on August 16th centered around the
Medical College of Wisconsin
situation and the Meyer complaint, as well as Dimas' education but that Macy brought up
including those surrounding Dimas' nephew and that Dimas refused to answer questions
Dissing stated that the meeting centered on the incidents that led to the one-day suspension
most part and not so much regarding prior disciplinary actions and that the meeting also
more recent incidents not previously acted upon by the County.
Macy confirmed that after Dimas left and County Representatives had spoken with
Union Representatives, the County discussed the matter in separate caucus and decided to
Dimas. After August 16th, Macy attempted to settle the matter with Dimas'
attorney, Mazza, so that
the termination letter did not issue until August 20, 2002. That letter read as follows:
. . .
This letter is to confirm that Green Lake
County has determined to terminate your
employment with the Green Lake County Department of Health & Human Services
August 16, 2002. This decision follows our investigation regarding several significant
matters, and follows prior progressive discipline in attempts to cure your performance
The reasons for this termination include the following:
1. You have inappropriately attempted
to have one of our Department's providers,
Medical College of Wisconsin - Behavioral Health Services, intervene into your confidential
matters at the County. By your letter of July 29, 2002, on County letterhead, you
your confidential personnel discipline with this provider, noting you "... have been in a lot of
for political reasons...", and sought this provider's assistance to defend your discipline.
unilateral communication to an outside provider has jeopardized the Department's standing
2. As a follow-up to your unilateral
communication with the Medical College of
Wisconsin - Behavioral Health Services, this provider has given you formal notice to
provider agreement with you. This means that you will no longer be eligible to receive any
referrals from this provider. Maintaining provider eligibility is an important qualification for
counselors since it directly impacts our ability to fund our services. In addition, we do not
you were honest with the County when asked about this providers decision to terminate its
with you. You purposely failed to disclose your inappropriate unilateral communication with
provider directly preceding your removal.
3. You unilaterally engaged in an
inappropriate counseling arrangement with a minor
representing a significant conflict of interest. As you acknowledged, as part of your
this Department, you elected to counsel a sixteen year old minor regarding underage drinking
alcohol, without disclosing that this minor was your nephew. It is simply not appropriate to
a family member, a matter well understood in the profession, this Department and as a
4. In the course of counseling your
nephew, you engaged in an inappropriate discussion
of his sex life, and made condoms available to him from your office. Following the receipt
condoms from your office during your counseling session with this sixteen year old, this
engaged in sex with a thirteen year old resulting in his arrest for sexual assault. Your
well beyond the scope of your employment to counsel regarding alcohol matters and has
County in a position of potential liability. Your conduct is in gross disregard for the
5. Following the providing of
condoms to this minor, you were told by this Department
not to have contact with this minor. You have violated that directive by contacting this
minor on at
least two occasions. In addition, you have inappropriately threatened this minor by
have him change his story as to where he received the condoms. Again, your conduct is in
disregard for the County's interests.
6. You have failed to correct your conduct despite past
progressive discipline. As you
know, you have received significant progressive discipline in attempts to correct your
which has included:
A. In February, 2002, you received a
reprimand for commenting to a minor, male client
during the course of an alcohol test regarding the use of a tweezers to find his small penis;
alleging that the minor's urine must be "dirty", since he was having trouble urinating; and
threatening this minor with an arrest. This matter generated a client complaint, and Court
intervention resulting in apology from this Department.
B. In April, 2002, you were
reprimanded for again speaking inappropriately to a client.
In the course of counseling a minor, female client, you asked about her sex life and further
commented to the minor about this minor's mother, and the mother's personal life.
C. In April, 2002, you were
reprimanded for again speaking inappropriately to a female
client being counseled for an alcohol assessment. You asked her if she liked women, and if
she was a lesbian. You asked her if her husband left her because she cheated on him. You
asked her if she took strays home from the bar and how she gets her knees bent, a perceived
sexual reference. Despite past progressive discipline, you continued these inappropriate
personal references to clients, well beyond the scope of your duties as an alcohol counselor.
D. In July, 2002, you received a one
day disciplinary suspension for your failure to make
proper arrangements for a minor client's admission for inpatient treatment. Your failure to
make proper arrangements resulted in this client and her family traveling unnecessarily to
Green Bay without the ability to be admitted to the recommended facility. Following
inappropriate handling of the admission process, you failed to follow-up with this family in
any way, until they filed a complaint against you with the agency. In addition, once the
filed a complaint, you inappropriately went unannounced to their residence on a Saturday, a
visit which is totally inappropriate under the circumstances.
For the reasons noted herein, you have
seriously jeopardized the public's confidence in our
agency and have acted well beyond the scope of your employment, despite past warnings to
are left with no alternative but to terminate your employment
. . .
Dr. Felipe Ambas, the consulting psychiatrist who oversees and reviews all Green
and Human Services cases and approves all treatment plans, also testified herein
Ambas stated that he initially could not believe that County clients would complain about
they did but when more complaints were lodged about Dimas' work, Dr. Ambas implied he
to suspect problems. Regarding the issuance of condoms, Dr. Ambas thought it
Dimas to distribute condoms given the scope of his job description and the setting of his
work as an
AODA counselor of young people. Dr. Ambas stated that he never consented to
condoms or to Dimas' inquiring regarding clients' sexual activity. 20/ Dr. Ambas stated he
with the County's decision to terminate Dimas -- that he had reviewed the complaints from
Loomans and Mrs. Jeffers as well as the facts concerning Dimas' distribution of condoms to
nephew, T.P., and he (Dr. Ambas) concluded that the County could be liable for damages if
complaints were received regarding Dimas' work at the County.
20/ Dimas admitted herein he is not qualified
to ask questions about his clients' sexual relationships and that
Dr. Ambas never told him to ask those questions.
In addition, Dr. Ambas stated he believed it was not within Dimas' job description to
clients about their sexual activities. Dr. Ambas stated that questions about childhood
are not relevant for an AODA assessment; that only if Dimas was expected to do an in-depth
assessment of a minor following court intervention and the parents had stated they were
about sexual promiscuity, would questions on the topic of sexuality with a minor be
Ambas stated that he told Dimas to remove the condoms from his office. Dr. Ambas
stated that if
he had known Dimas was distributing condoms, he would never have allowed it. Dr. Ambas
that Dimas never told him that he was asking clients about their sex lives during AODA
The Union called a witness, William R. Olcott, to give evidence regarding what types
questions are appropriate in AODA assessments, based on his education and his teaching
as well as Olcott's certifications. 21/ Olcott's testimony herein was mixed. Although Olcott
that it is common to ask young adults and adults questions about their sexuality during
assessments, this must be done carefully and the counselor must set up a counselor/client
before venturing into the area of sexuality. Olcott stated that it is not normal to get into
in a first session with a client.
21/ The County submitted evidence to show
that Olcott's vita misstated his education. In fact, Olcott never
received a BS degree in Sociology from Indiana University and he never received a MA
degree in Community
Psychology from UW-Green Bay. The fact that Olcott apparently lied on his resume is
significant to this Arbitrator.
This fact significantly detracts from Olcott's credibility. (Union Exhibit 7 and County
Exhibits 20 and 21)
Olcott stated it is common for counselors to have a bowl of condoms in their offices
make them available to clients, though in his opinion, this would not be relevant to an
assessment. Olcott stated that it is not unethical according to the codes of conduct applicable
AODA counselors for AODA counselors to perform AODA assessments of their own family
members, especially in rural areas where there may be no other counselor to make the
However, Olcott stated that assessing a family member is a concern because there is a prior
relationship between the counselor and the client.
Regarding the alleged penis/tweezers statement, the statement regarding J.V. being
well-developed, and the "knees bent" statement, Olcott stated that the first comment was
nor appropriate in a professional setting, the second comment was not typical and the third
was extreme. Olcott stated that he would not ask a client to go out for coffee but that this is
violation of the counselors' code of ethics. Olcott stated that it might be appropriate for a
ask a client if she had cheated on her husband or was a lesbian but that he would not start
asking about sex with a client. Olcott stated that he did not know under what circumstances
counselor would ask a minor if they wanted to sleep with their mother's boyfriend.
POSITIONS OF THE PARTIES
The parties agreed to submit their post-hearing summary briefs postmarked to the
on March 21, 2003, which the Arbitrator would then exchange for the parties. The Union's
timely received. However, the County's brief was not received in a timely fashion due to an
emergency illness of County Corporation Counsel Seling and his office's failure to timely
County's brief herein. On April 24, the Arbitrator received a letter of explanation from
Counsel and on May 2, 2003, Union Counsel advised in writing that it agreed that the
could be considered herein despite its untimely receipt.
The County urged that the discipline and discharge of Dimas was based on timely and
progressive discipline and supported by sufficient misconduct by the Dimas which included
complaints and failure to set up in-patient treatment properly as well as inappropriate
with an MCWI employee. The County summarized the evidence as follows. The County
the LeRoy Dissing testified to all of the complaints made against Dimas, that he (Dissing)
them and determined the action to be taken thereon. The County contended that the
private citizens as well as the documentary evidence supported its conclusions that Dimas
in inappropriate conduct regarding the Loomans incident. In this regard, the County noted
Dimas admitted making inappropriate comments about the penis of the client during a urine
test and that Dimas later apologized therefor.
In addition, the County observed that regarding the Kahn incident, Dimas' comments
questions about Kahn's private sexual life in a first session for an IDP assessment were
inappropriate. In addition, the testimony of J.V. and Mrs. Jeffers regarding comments made
minor client, J.V., regarding her sexual activity and relationships were completely
the age of the client as well as the counseling situation. In addition, the County argued that
had breached confidentiality by discussing J.V.'s mother's boyfriend's case and J.V.'s
getting proper releases. Finally, the County asserted that it was totally inappropriate for
ask J.V. out for coffee given his counselor relationship with her. On this point, the County
Dimas did not testify herein concerning the incidents surrounding J.V.
Concerning the Meyer family complaint, the County urged that Dimas' contact of the
family after they had filed a complaint went specifically against Dissing's prior instruction to
not to contact clients when a complaint had been lodged. The County also noted that the
were quite upset that their daughter had not been accepted in the Libertas residential
program recommended by Dimas and they sought reimbursement for their gas to Green Bay
trouble. In addition, the County argued that Dimas made inappropriate comments to Jody
MCWI, seeking her assistance in dealing with his (Dimas') suspension and causing the
College to terminate Dimas' provider contract with MCWI.
Finally, the County noted that Dimas' counseling of his nephew (T.P.) and
condoms to his nephew were entirely inappropriate and had subjected the County to potential
All of these incidents, the County urged, Dissing fully investigated and considered before he
progressive discipline to Dimas. The County noted that the testimony of J.V., Mrs. Jeffers,
Kahn and Mrs. Meyer was disinterested and should be credited.
In addition, the County urged that the testimony of Attorney James Macy also
County's case and the conclusion that Dimas was suspended and terminated for just cause.
regard, the County noted that on three occasions, Macy asked Dimas to explain his conduct
the Medical College, the Meyer family and to discuss a pattern of sexual comments Dimas
to his clients. Macy also mentioned County liability and told Dimas that he was going to
that he (Dimas) be terminated. In these circumstances, the County urged that Dimas had
a full opportunity to respond to the charges against him on August 16, yet he had refused to
without fault by the County.
The County noted that Dimas' Union Representatives were present on August
16th and that
a member of his attorney's law firm was made available to him by telephone on
August 16th. In
addition, the County noted that Union Representative Bartel's testimony supported the
case. In this regard, the County noted that Bartel confirmed Macy's testimony in many
that everyone present on August 16th was aware of the prior misconduct
that Dimas had engaged in
and that the August 16th meeting was intended to discuss Dimas' recent
conduct. Bartel confirmed
that Macy stated to Dimas several times during the
August 16th meeting that this was Dimas' opportunity to give his side
of the story and respond to the
complaints. Bartel also stated that Macy discussed progressive discipline at the August
and that Dimas refused to answer questions. Bartel stated that he believed the T.P. incident
discussed when Dimas had already left the room, but that Bartel and his supervisor, Mr.
present for the discussions with the County regarding T.P.
The County also noted that Wendy Reha confirmed Janelle Kahn's emotional
day that Dimas made the sexual comments to her, as Reha had a counseling session with
after Kahn's session with Dimas. The County further observed that the documents of record
supported its case, pointing specifically to the letters regarding the Loomans matter from Mr.
Loomans as well as Judge McMonigal, the notes of Wendy Reha, the written complaints
and the Meyer family, as well as Dimas' letter to MCWI and MCWI's letter terminating
In addition, the testimony of William Olcott, the County urged, should be found
due to his having lied about his educational credentials in his testimony herein. In any event,
County noted that Olcott admitted that counseling regarding sexual-related issues must be
great sensitivity and that breaches of confidentiality with clients are strictly forbidden. In
Dimas' testimony herein, the County urged that Dimas had essentially made blanket denials
conduct he was alleged to have engaged in, except for the statements to Loomans. In
Dimas admitted herein that he was not qualified to counsel clients on sexual relationships and
admitted asking clients about their sexual lives. The Union offered no explanation why
J.V. and Mrs. Meyers would lie about their contacts with Dimas. Finally, the County noted
Dimas' CD of the August 16th meeting was incomplete and was made
without the consent of the
parties in the room at that meeting.
The County contended that Dimas' discharge was consistent with prior cases of
the County, placed in the record herein. The County asserted that Dissing, Macy and Dr.
testimony confirmed that the County had just cause to suspend and discharge Dimas. In
Dr. Ambas' testimony, the County noted that Dr. Ambas stated that he had never
permission to discuss sexual issues with his clients and that Dr. Ambas had never given
permission to distribute condoms and that Dr. Ambas told Dimas to stop it upon discovering
Dimas was distributing these. The County cited two cases but did not attach these to its
Menasha Board of Education and Menasha Teachers Union Local 1166, Grievance No.
W-1-98-99 and Oshkosh Truck Corporation and UAW Local 578, Grievance No. 97-1-35.
22/ The numbers given by the County do not
identify the cases sufficiently for the Arbitrator to find them.
Therefore, the Arbitrator has not considered these cases in reaching her
The Union argued that the County should not be allowed to rely on any prior
involving Dimas because such misconduct was not mentioned at the August
16th termination meeting.
The Union contended that Dissing's testimony should be discounted as he contradicted
several points and that Macy's testimony should also be discounted as it was sketchy at best
notes do not contain a list of complainants' names discussed on August
16th. As Macy gave nothing
to the Union or Dimas at the end of the August 16th meeting, the
County should not be allowed to
argue now that all of the incidents regarding Dimas are linked together because they show he
exercised poor judgment.
In contrast, the Union argued that Dimas and Bartel's testimony was more consistent
should be credited herein. In this regard, the Union noted that Bartel stated that the
Dimas refused to answer had nothing to do with T.P., Kahn or other incidents involving
complainants. Rather, those questions Dimas refused to answer had to do with the MCWI
Thus, the Union urged that the County lacked just cause to suspend Dimas for
that the County had failed to conduct a proper investigation thereon, which denied Dimas due
process. The Union asserted that Dimas was essentially given a one-day suspension by
Dissing issued the suspension because Dimas went to the Meyer home unannounced on a
However, the Union argued that the evidence showed that the Meyer's had caller ID so they
that Dimas was calling them on Friday, June 28th and that Dimas had
permission to enter the Meyer
home on Saturday, June 29th. The Union noted that Mrs. Meyer's admitted
that Dimas had been to
her home before his visit on the Saturday prior to July 1. Thus, the Union urged that
could not have been intimidating or retaliatory as the County alleged. In addition, the Union
that the County never told Dimas not to go to a client's home and that there was no County
against it. Furthermore, the Union noted that Lynn Marsh was not disciplined for her part
up to the Meyer complaint.
Regarding Dimas' contact of Halfon at MCWI, the Union contended that the County
no justification for the termination of Dimas on this basis. In this regard, the Union
MCWI did not give any reason for terminating Dimas' provider agreement; that Halfon in
testimony herein did not confirm Dissing's assertions in his testimony that MCWI terminated
provider contract with MCWI because Dimas had had contact with Halfon; and there was no
evidence submitted to show that any financial impact was felt by the County due to the
of Dimas' provider contract with MCWI.
Regarding the T.P. incident, the Union observed that this was one of the allegations
misconduct raised by the County to which the Union had objected herein. The Union urged
Arbitrator to disregard the evidence regarding T.P. because the County offered no direct
to support its allegations that Dimas gave condoms to T.P. Rather, the County's
evidence consisted of hearsay, double-hearsay and even triple-hearsay on this point. In
Union noted that there is no County rule extant against counselors counseling their relatives
Dissing admitted that there is nothing in the Code of Ethics against it. Furthermore, there is
County policy or rule against Dimas' distributing condoms or maintaining a bowl of condoms
Regarding the Loomans incident, the Union noted it objected to this evidence at
it was unrelated to the one-day suspension and termination of Dimas. The Union noted in
that Dissing never talked to the client, but only to his mother. The Union noted that Dissing
approach repeatedly regarding complaints against Dimas and the Union felt that this approach
procedurally unfair to Dimas.
In regard to the Kahn incident, the Union noted it also objected to the admission of
evidence as it was unrelated to the one-day suspension and/or termination of Dimas.
Kahn incident, the Union again noted that Dissing decided to discipline Dimas before he
explanation, because Dissing simply believed Kahn. However, after he met with Dimas,
decided to investigate the case further and spoke with Westover, who indicated that Kahn
untrustworthy and Westover refused to comment on Kahn's actions. Dissing also
Meyer who told Dissing that when she drove Kahn to her appointment with Reha, Kahn said
to her about her previous session with Dimas. Reha's notes of her interview with Kahn
failed to show
that Kahn was upset, crying or had broken down during her session as Kahn claimed in her
herein. The Union also noted that the Reha's notes indicated that Kahn often blames others
own problems, has a bad memory and does not regularly take her medications which affects
memory, her ability to concentrate, and causes mood swings. Furthermore, Dissing's notes
conversation with Reha cast further doubt on Kahn's testimony. As Dimas denied all of the
allegations Kahn made against him, the Union urged that this complaint should be
Regarding the J.V. incident, the Union noted that it again objected to this evidence as
being relevant to either the one-day suspension or termination actions against Dimas.
incident, the Union argued that the County failed to prove that Dimas had engaged in any
Here, the Union noted that J.V.'s testimony was not detailed, that Mrs. Jeffers did not hear
complaint from her daughter but rather from her daughter's boyfriend so that Mrs. Jeffers
direct knowledge of the complaint. The Union noted that Dimas denied all of J.V.'s
against him except telling J.V. about an Alcoholics Anonymous meeting that she should
Union noted that J.V. stated that Dimas never touched her with his hands, that he was not
or angry and that he was always polite during the 8-10 sessions Dimas had with J.V. The
argued that Dissing talked to Mrs. Jeffers and not J.V. until after Dissing had decided
discipline to Dimas, thus denying Dimas due process. The Union asserted that J.V. had
problems and that Union Exhibit 24 indicated that sexually transmitted deceases should be
about in AODA assessments because of the vulnerable state of many of the clients who
assessments. The Union noted that the County offered no evidence to contradict this.
In general, the Union described Dimas' approach to AODA assessments and stated
had been trained to ask about sexual relationships and that he had done so for three years at
County without any problems prior to the complaints filed against him. The Union noted
Dissing nor Reha have any AODA training or experience but that the Union's witness,
Olcott, is an expert in AODA and his testimony was largely uncontradicted in the record and
be found credible. Specifically, the Union noted that Olcott stated that he generally asks
relationships in a first AODA meeting and that he has condoms in his office although he has
In regard to prior disciplinary cases submitted in the record (Union Exhibits 26-28),
noted that the County has never discharged another employee for failing to properly process
as they did with Dimas. In addition, all of the employees involved in the prior disciplinary
were allowed to resign in lieu of being terminated, unlike Dimas. In two cases (Union
Exhibit 26 and
27), one employee was found guilty by the County of stealing client property (Union Exhibit
another of making sexually explicit statements to clients (Union Exhibit 26). The Union
these employees were given corrective action plans by the County before further action was
against them while Dimas was not.
The Union urged that Dimas had an exemplary employment record with the County
the County was "out to get Dimas all along" since he refused to admit misconduct he did not
engage in. As the conduct Dimas engaged in was less serious than that engaged in by other
employees, the Union urged that the Arbitrator should sustain the grievance and reinstate
full back pay and benefits.
The effective County Policy, Section 16, Employee Discipline, indicates that
. . . (A), "willful misconduct or insubordination" (G) and "discourteous, insulting, abusive
inflammatory conduct toward the public . . ." (I), can be grounds for disciplinary action.
County's Policy at Section B, also states that normally progressive discipline will be applied,
verbal, then written warnings will be given before a three-day suspension is issued, followed
termination. The Policy states that ". . . depending upon the severity of the offense, the
by management may involve immediate application of one or more of the progressive steps
immediate discharge if warranted."
This case involves two separate disciplinary actions against Javier Dimas, his one-day
suspension on July 23, 2002, and his termination on August 20, 2002. I will deal with
Dimas' one-day suspension first. In determining whether Dimas' suspension was
appropriate, it is necessary to
look at the discipline Dimas received prior to July 23, 2002.
On February 6, 2002, Dimas was verbally counseled by Deputy Department Director
Dissing against making inappropriate comments to clients. This counseling took place as a
Mrs. Loomans' call to Dissing to complain about Dimas' treatment of and comments to her
regarding the size of her son's penis at her son's Underage Alcohol Education Class on
2002. Dimas admitted to Dissing during the counseling that he made the statements alleged
Loomans' penis during the class. Dissing told Dimas his comments to Loomans were
and Dissing warned Dimas not to engage in such comments in the future. 23/ In addition,
copied Dimas on a March 4, 2002, response to Loomans written complaint to Judge
regarding the incident. In this letter, Dissing wrote, inter alia, that he
had discussed Loomans'
written complaint with Dimas, that Dimas had admitted making the comments, that Dissing
comments were "inappropriate" and that Dissing assured Loomans such comments "will not
repeated." Dissing also apologized for Dimas' remarks on behalf of the County. 24/
23/ Given Dimas' admission to Dissing during
the counseling session, a more in-depth investigation of the
Loomans complaint was unnecessary in my view.
24/ Dimas did not grieve
his verbal counseling regarding the Loomans' incident.
It is significant that Dimas has consistently admitted making the comments alleged by
Loomans and his mother. Therefore, the fact that neither Mrs. Loomans nor her son
is not grounds to disregard the evidence concerning this complaint. In addition, the remarks
admittedly made by Dimas to Loomans are telling of Dimas' character, personality and
in the Arbitrator's view. Loomans was a young man (18 years old) court-ordered to attend
Underage Alcohol Education Class taught by Dimas, as part of Loomans' punishment for
in unlawful activities. 25/
25/ Loomans' court-ordered punishment also
included 30 hours of community service.
Dimas' comments to such a client in the presence of other clients were sexual,
threatening. There can be no reasonable or logical excuse for Dimas' treatment of Loomans
February 5, 2002, even assuming Loomans was on drugs at the time as Dimas stated herein.
extreme frustration with Loomans' inability to produce a urine sample on February
5th should not
have caused Dimas to make the statements he made to Loomans that evening. Dimas was
Loomans' counselor on February 5th. Rather, Dimas was simply the
teacher of an Underage Alcohol
Education Class. Clearly, Dimas could have notified authorities of Loomans' failure to give
sample on February 5th and Dimas' observation
of Loomans' physical condition that evening, rather than making the statements that he
Loomans. There is no evidence in this record that Dimas either considered or took either of
steps regarding Loomans' inability to produce a urine sample on February
On April 11, 2002, Dissing received another complaint from client Janelle Kahn in
complained about comments Dimas made to her on April 3, 2002, during her initial meeting
Dimas to have an Intoxicated Driver Assessment as ordered by the Court. It is significant
IDP assessment form (Union Exhibit 15) does not contain any reference to sexual orientation
Dissing requested that Kahn put her complaint into writing and Kahn did so dated
2002. Kahn also testified herein to the specific comments that Dimas made to her on April
stated herein that the comments Dimas made to her greatly upset her, made her angry and
cry. Kahn's Life Skills Counselor, Wendy Reha, confirmed in her testimony herein that
very upset and visibly tearful at their session on April 3rd, which took place
shortly after Kahn had met
with Dimas; that Kahn was truly upset and honest in her comments to Reha about what
said to her that day; and that Reha had not known Kahn to be untruthful since beginning
with Reha in December, 2001. Kahn and Reha stated herein that they did not believe Kahn's
inconsistency in taking her prescribed medications would affect her memory of Dimas'
April 3rd. Reha did not recall herein that Kahn recounted to her the alleged
"knees bent" comment
at their counseling session on April 3rd, but Reha's counseling notes and
Dissing's notes of his
conversation with Reha support Kahn's testimony in all other respects.
In these circumstances and despite Dimas' denial, I credit Kahn. I found Kahn to be
and straight-forward witness whose testimony and allegations were largely corroborated by
Dissing. 26/ In addition, the Union failed to proved that Kahn had an ax to grind against
Therefore, I find Dimas made inappropriate comments to Kahn as she alleged on
April 3rd. In
addition, I credit Kahn when she stated herein that Dimas asked her how she got her knees
Kahn recounted this comment to Dissing in her telephone conversation with him and then
comment into her written complaint and she testified thereon herein. Also, Dimas'
admission that he
made inappropriate sexual comments to Loomans tends to support a conclusion that he would
inappropriate sexual comments to Kahn.
26/ I note that the Union did not call Jackie
Westover, who may have given testimony in support of Dimas.
Dimas asserted herein that HFS 75, Wis. Admin. Code requires that he ask questions
clients' sexual activities and sexual orientation. I disagree. The document submitted by the
in support of Dimas' testimony on this point (Union Exhibit 24) indicates that
"AODA outpatient treatment services are required to conduct a risk assessment for
transmitted diseases (STD's), human immuno deficiency virus (HIV), hepatitis B and C, and
tuberculosis (TB). The evaluation/assessment must be conducted by the AODA outpatient
service and may include onsite testing, performed by trained medical personal. Those
positive must be referred to the local public health agency for appropriate follow up."
Union Exhibit 24 does it state that an AODA counselor must ask clients about their sexual
The Union asserted herein that it was normal and accepted professional practice for
counselors to ask their clients about their sexual orientation at AODA assessments. The
varied regarding this assertion. However, the type of sexual comments made by Dimas to
far beyond a simple inquiry into her sexual orientation (as he asserted herein). Dimas' use
confrontational, vulgar and accusatory language -- that Kahn was a lesbian, that she played
herself, that her husband left her because she cheated on him, that she took strays home bars
certainly not the kinds of comments that would put an AODA client at ease during an
Given the fact that IDP assessments do not require an in-depth counseling session by the
counselor doing the assessment, Dimas' comments to Kahn cannot be explained away on that
27/ In the Arbitrator's view, Dissing did a full and fair investigation of Kahn's complaint
that Dimas had made the offensive comments (based largely on Dissing's belief in Kahn's
I find that the evidence herein fully supported Dissing's conclusions and that the County had
cause to issue Dimas the May 21, 2002, written reprimand.
27/ The State of Wisconsin does not require
AODA counselors to ask sexual orientation questions at IDP
In his written reprimand, Dissing made clear that any future inappropriate comments
draw a suspension, that Dimas would have to attend Boundaries and Ethics Training and that
apologize to Kahn and review the client grievance procedures (mandated by Wis. Stats. Sec.
and HFS 94, Wis. Admin. Code). It is undisputed that Dimas took these actions required by
I note that the County's client grievance procedure has been summarized in a
pamphlet by the
County (County Exhibit 18), lists "Client Rights":
. . .
You must be treated with
dignity and respect, free from any verbal, physical, emotional or
. . .
AND RIGHT OF ACCESS TO COURTS
Before treatment is begun,
the service provider must inform you of your rights and how to
use the grievance process. A copy of the Program's Grievance Procedure is available upon
If you feel your rights have
been violated, you may file a grievance.
You may not be threatened
or penalized in any way for presenting you concerns informally
by talking with staff, or formally by file a grievance.
. . .
It is significant that Dimas handed out this pamphlet to clients in every case he handled
County. Based on Dimas' prior work in the area of AODA as well as his County
the County's requirement that he review the above procedures, it must be presumed that
aware of client rights regarding counseling and treatment by County employees.
The next allegations herein concerns J.V. Although these allegations were
Dissing to some extent and they were apparently included in the original written reprimand
Dimas along with the Kahn complaint, the J.V. allegations were not included in the May 21,
reprimand apparently due to a Union objection that J.V.'s complaint had not been
and fairly before the discipline issued. It is significant that no discipline was every issued by
County regarding Dimas' treatment of J.V.; and that these allegations were not used as part
reason of Dimas' suspension. I note, however, that some of the allegations against Dimas
J.V. were listed in Item 6 of Dimas' discharge letter at section B. In my view, this use of
evidence was inappropriate as Dimas had never been reprimanded regarding the allegations
and her mother based upon the record in this case. The Arbitrator has therefore not
allegations in reaching this Award.
The final incidents which lead to Dimas' termination involved a complaint by the
family, Dimas' response thereto and Dimas' counseling his nephew and offering him
interviewed the Meyer's daughter on May 20, 2002, and he filled out forms for her to be
to a 28-day residential treatment program at Libertas in Green Bay, Wisconsin, on June 4,
It is clear on this record that it was Dimas' responsibility to arrange for and draft the
paperwork for the Meyer's daughter's admission to Libertas, following a staffing and
approval by Dr.
Ambas. This conclusion is based upon the insurance document (Union Exhibit 20),
testimony and Dimas' admissions. Also, Dimas stated herein that he received Union Exhibit
or about May 28, 2002, from Lynn Marsh, which stated that the Meyer's "need MA
Assistance) qualifier for 30 days for payment." Dimas' description of his work
and the requirement of drafting the paperwork for his clients makes clear that he was
responsible for the Meyer's daughter's admission papers to Libertas. Therefore, Dimas'
make sure that the Meyer daughter would gain admission to Libertas on June 4, 2002, as
In regard to Dimas' contact of the Meyer family, I note that Dimas admitted calling
Meyers on Friday, June 28, on the same day that Dissing e-mailed Dimas that another
been received on which a meeting would be held July 1, 2002. Dimas stated that although
did not identify the complainant(s), he felt that complaint had to have come from the Meyer's
Dimas decided to call them. Dimas called the Meyer's several times but no one answered
telephone. Finally, Mrs. Meyer answered and spoke with Dimas. Mrs. Meyer answered
questions, admitting that she had filed a complaint against Dimas with Dissing due to the
the referral for her daughter to Libertas. On Saturday, June 29th, Dimas
stated that he went to the
Meyer home unannounced because he was concerned about his conversation with Mrs.
he wanted to get their complaint resolved.
In my view, at this point, Dimas should have discontinued his contact with the Meyer
based on Dissing's May 31, 2002, e-mail warning Dimas "not to have any involvement with
in which the County had received a complaint and that Dimas should "cease making
could be construed as retaliatory or insubordinate." Dimas also clearly disregarded Dissing's
warnings by appearing at the Meyer home, unannounced (as he admitted) on Saturday, June
speaking to the Meyers about their complaint against him. The fact that Mrs. Meyer invited
into her home on June 29th and agreed to speak to him, does not detract
from Dimas' insubordination
in ignoring Dissing's e-mail warnings.
In addition, looking objectively at Dimas' unannounced visit to the Meyer home, it
difficult to believe that the Meyer's were not at least somewhat intimidated thereby. The fact
Dimas convinced the Meyer family to attend a staffing he intended to arrange at Green Lake
on July 1, to discuss their complaint, indicates at the very least that the Meyer family was
in placating Dimas. Such a staffing with the complainants present was neither contemplated
required by the County's grievance process for clients (Union Exhibit 18). In these
I believe the County's decision to discipline Dimas for his having pursued contact with the
family after Dissing warned him not to do so, justified his being disciplined by the County.
28/ It is
undisputed that the Meyer family was inconvenienced by Dimas' failure to follow through to
Medical Assistance to pay for their daughter's treatment, that Dimas never called or
Meyer family until after they had filed their complaint and that the Meyer daughter never
treatment recommended by Dimas and Dr. Ambas.
28/ The broad language of Dissing's warning
in his e-mail to Dimas supports this conclusion.
Thus, the one-day suspension which Dimas received for not following up with the
an appropriate time after denial of admission to Libertas and for contacting and then meeting
the Meyer family at their home on a Saturday after Dimas had been told not be involved with
after a complaint had been filed, was based on just cause and is sustained herein.
The evidence in this case is extremely thin regarding the allegations concerning T.P.,
nephew. I note that neither T.P., County employee Sleezer nor the involved Police Officers
called as witnesses regarding the allegations on this point. In addition, the County did not
to submit the Police Report regarding T.P.'s alleged arrest. The only evidence the County
on the T.P. allegations was the testimony of LeRoy Dissing. Dimas was the only witness on
of the Union that spoke to these issues.
It is significant that the County submitted no evidence to show that Dimas had
training regarding the distribution of condoms nor did the County provide any policy to show
its AODA Counselors had been told not to distribute condoms. In addition, Dimas never
a prior warning regarding the distribution of condoms at the County. Indeed, Dimas stated
his prior job he had distributed condoms without incident.
Although I find that LeRoy Dissing was a very credible witness, this type of
an employee is so serious that the employer has a burden to prove such allegations by more
hearsay evidence of the direct line supervisor. Given the fact that Dimas stated that he had
condoms in his prior work, I find that the distribution of condoms is not the type of activity
Dimas would know was prohibited by the County without the County having properly
of same. In short, there simply is insufficient evidence on this record to show that T.P.
condoms from his Uncle Dimas which T.P. used in an alleged sexual assault. 29/
29/ I note that after June 30th
when Dr. Ambas and Dissing counseled Dimas that it was inappropriate for
Dimas to distribute condoms and that he should remove the condoms from his office, Dimas
removed the condoms
and there is no evidence that Dimas violated the directive of Dr. Ambas and
Mr. Dissing thereafter.
Furthermore, it is clear that the County does not have a policy or rule against
counseling or teaching their family members. In addition, the evidence on this record failed
demonstrate that such a rule is universally applied. 30/ Based on the evidence regarding
the County failed to prove that Dimas engaged in inappropriate conduct for which he had
previously warned or upon which there was a County policy. Finally, as stated above, there
insufficient evidence to support the allegations stated in paragraphs 4 and 5 of the August 20,
termination letter. Those allegations have not been considered herein.
30/ It is the Arbitrator's view that Dimas
should not have been involved in assessing his nephew's alcohol and
other drug problems as there might have been an appearance of impropriety in his
recommendations regarding such
an assessment. However, the fact that Dimas taught T.P.'s Underage Alcohol Education
Program does not
necessarily mean that an appearance of impropriety would arise
In regard to paragraph 1 and 2 of the termination letter, I note that Dimas admitted
contacting MCWI's Jody Halfon and sending her a copy of his suspension letter. Halfon
that Dimas shared personal issues with her concerning the denial of the Meyer daughter's
treatment program by MCWI which Halfon stated was inappropriate and made her feel
uncomfortable. Halfon also stated that no one in Dimas' position had ever shared such
her before in her position at MCWI.
Although Halfon's testimony did not demonstrate that she felt intimidated by Dimas'
or his letter and enclosure, the fact that Dimas sent Halfon (a third party) a letter soliciting
support and enclosing his personal disciplinary document, certainly ran afoul of Dissing's
e-mail warning Dimas not to have any involvement in cases in which the County had
complaint, that is, the Meyer complaint. Dissing's May 31st warning
should have at least caused
Dimas to inquire whether contacting Halfon by letter and enclosing his suspension would be
appropriate. Dimas did not do this. Dimas' request that Halfon keep their contract
tends to support a conclusion that he knew the County would not have approved of his
Halfon's assistance as he did. Thus, Dimas' contact of Halfon and his letter to her enclosing
suspension violated Dissing's prior e-mail warning and supports a conclusion that the County
cause to discipline Dimas for these actions.
MCWI's decision to terminate its contract with Dimas and Dimas' failure to disclose
contacts with Halfon prior to MCWI's termination of his provider agreement with them were
bases for the County's decision to discharge Dimas. On the latter point, I note that Dimas
to Dissing that he called Halfon on July 3, 2002, and that thereafter but prior to
July 23, 2002, Dimas
did not speak to Dissing about any contact he had had with MCWI. Indeed, it was not until
investigatory/termination meeting held by Attorney Macy on behalf of the County on August
2002, that Dimas admitted he had sent MCWI a copy of his suspension notice. When Macy
whether he had released internal information to the outside, Dimas stated that he responded
question, asking Macy where the meeting was going and Dimas stated that he then refused to
anymore questions, requested his Miranda rights and asked for his attorney.
Thus, it is clear that even though Dimas had contacted Halfon previously, even at his
suspension meeting on July 23, 2002, he did not indicate to the County that he had contacted
In fact, Dimas admitted herein that on July 23rd he wrote his letter to
Halfon enclosing his suspension
notice. In these circumstances, it is clear that Dimas did not keep the County
abreast of his contacts with MCWI regarding the Meyer complaint and that therefore,
assertions that Dimas had failed to disclose his contacts prior to his termination meeting were
justified. Again, Dimas' pursuit of his contacts with MCWI and Halfon through the month
violated the directive Dissing gave him in the May 31st e-mail.
Very little evidence was submitted regarding the affect of MCWI's cancellation of its
with Dimas. The County provided no evidence to show that it had suffered any monetary
to the cancellation of that contract. In addition, the cancellation letter from Halfon did not
any reason for that cancellation, as the contract between MCWI and the County did not
to be stated for termination. However, Halfon's testimony indicated she was uncomfortable
Dimas contacted her and submitted his personal employment document to her, stating that
activity was inappropriate and unique in her experience. It is also clear that Dimas had
with MCWI before he submitted the documents regarding the Meyer daughter's 28-day
program. As such, it is difficult to believe that there was any reason other than how Dimas
the Meyer referral and the aftermath thereof, for MCWI's termination of its contract with
Therefore, the County's conclusion that it was Dimas' conduct which caused MCWI to
contract with him was a reasonable conclusion for the County to reach based on the facts that
County possessed in mid-August, 2002.
The Union has put forth several arguments which go to the question whether Dimas
due process during the processing of the disciplinary actions regarding his suspension and
termination. In this regard, the Union urged that Dimas was disciplined for several different
of misconduct and therefore, progressive discipline was not applied because each type varied
the other. I disagree. The type of misconduct engaged in by Dimas essentially involved his
to properly deal with his cases and his clients and they could reasonably be considered
together in the
scheme of progressive discipline which the County applied herein.
The Union contended that the August 16th meeting conducted by
Attorney James Macy
demonstrated that Dimas was never notified of the charges against him for which he was to
terminated and the County failed to properly investigate several of the more recent charges
Dimas because the County never heard Dimas' side of the story. The Union urged that the
thereby violated Dimas' right to due process. In addition, the Union contended that the
must determine credibility based on a comparison of the testimony regarding what occurred
the August 16th meeting and the tape which was submitted by the Union,
made surreptitiously by
In regard to the latter point, I find that there is no reason why I must determine
regarding what occurred at the August 16th meeting. This is so because
even assuming that Dimas'
version of that meeting was entirely true and correct, Dimas was not denied due process in
On this point, I note that Dimas admitted on August 16th, Union
Rep. Bartel stated that other
issues were understood and that the focus of the meeting on August 16th
would be on the most recent
acts as alleged by the County. Bartel also stated that during the August
16th meeting, Attorney Macy
stated three times to Dimas that the meeting would be Dimas' opportunity to give the County
information and to speak on his own behalf. Bartel stated that when Macy tried to discuss
progressive discipline with Dimas and asked about prior misconduct and that Macy also told
that they were going to decide his case on August 16th and that
nonetheless, Dimas refused to answer
questions and left the room. Bartel stated that Macy specifically told Dimas that he (Macy)
recommend immediate termination if Dimas did not take this opportunity to speak on his own
Dimas admitted herein that at the point that Macy asked him if he had released
information to the outside, Dimas asked Macy where this (the meeting) was going and that
to answer any more questions. Dimas stated he requested his Miranda right and asked for
attorney. Dimas stated that Macy told him that this was not a criminal proceeding and that
rights were not appropriate, but it was at this point that Macy took a break so that Dimas
to get his attorney on the speaker phone so that Dimas could be represented by his personal
during the August 16th meeting. Finally, when Macy stated that he would
termination, Dimas admitted that he told Macy he should do what he had to do and Dimas
This factual scenario demonstrates that Dimas refused to answer questions during the
investigatory phase of the meeting and after having been warned several times that he would
terminated if he did not speak on his own behalf, Dimas decided not to speak, to refuse to
questions and to leave the meeting. Therefore, it was Dimas who terminated the meeting
to give the County information he may have had which might have caused the County to
determination to impose the discharge penalty. However, absent Dimas' answering questions
cooperating, the County was free to determine that the information it had was correct and
could proceed to discipline Dimas based on the evidence before it.
The Union urged that the County failed to timely send Dimas its discharge letter with
for his termination. I disagree. It is clear based on this evidence that Mr. Macy and Dimas'
attempted to settle the discharge prior to Macy's issuance of the termination letter and that
so out of deference to Dimas' attorney. 31/ Obviously, no settlement occurred and the
letter was in fact appropriately issued on August 20, 2002.
31/ There is absolutely no evidence in this
record to contradict Mr. Macy on this point.
Finally, there were other cases of prior discipline submitted into the record in this
Exhibit 26-28). In each of the three cases of past discipline submitted herein, each employee
allowed to resign under a written agreement with the County rather than be terminated for
misconduct. That misconduct ranged from personal use of the County long distance phone
in the amount of several hundred dollars while on work time at the County (Union Exhibit
misuse of sick leave in order to attend a cruise; to the alleged theft of a client's personal
insubordination and entering a client's home after being warned not to do so without a
present (Union Exhibit 27) to use of sexually explicit and obscene language causing
discomfort to a
student worker as well as to a client (Union Exhibit 26).
In regard to the offensive language case, the Union noted herein that the subject
had been given a corrective action plan and had been allowed to resign rather than be
that Dr. Ambas had separately investigated the allegations of sexual comments made to a
Here, Dimas was never offered a corrective action plan or allowed to resign and Dr. Ambas
investigated. In regard to the corrective action plan (CAP), Dissing explained that no such
created for Dimas because too many incidents happened to quickly for the County to have
such a plan. In regard to the allegation that Dr. Ambas should have personally investigated
allegations that Dimas used sexually explicit language to clients, in the prior case, the client
suicidal and mentally disturbed and that this was the reason (according to Dissing) that the
decided it would be appropriate for Dr. Ambas (a psychiatrist) to investigate the allegations
the other employee. None of the clients who alleged that Dimas made sexually explicit
them had such a medical history and therefore it was reasonable for the County to proceed as
in this case.
In all the circumstances of this case, 32/ the evidence demonstrated that Dimas
misconduct as analyzed and listed herein and that these were sufficient to support his
33/ Therefore, I issue the following
32/ Although the Union asserted in its brief
that the County was "out to get" Dimas, it failed to submit any
evidence to support this assertion.
The Union attached 20
cases for consideration herein: 5 awards of this Arbitrator, 7 awards of other W.E.R.C.
arbitrators, 7 awards of Ad Hoc arbitrators and a Supreme Court decision regarding a
Commission decision. I have reviewed all of these cases. Each case turned upon its specific
facts including, for
example, the number and type of allegations made against the grievant, the credibility of
witnesses and the specific
language of the contract.
33/ I have not
considered prior tardiness warnings against Dimas (County Exhibit 23 and 24) nor have I
considered his warning for his adjusting his own work schedule without permission (County
Exhibit 25) in reaching
my decision herein because these misconducts are of a different type and level than those for
which Dimas was
suspended and discharged.
Green Lake County, Department of Health and Human Services did not violate the
agreement when it disciplined Grievant Javier Dimas on July 23, 2002, by issuing him a
suspension. Green Lake County, Department of Health and Human Services did not violate
agreement when it terminated Dimas on or about August 16, 2002. Therefore, the
denied and dismissed in their entirety.
Dated in Oshkosh, Wisconsin, this 4th day of September, 2003.
Sharon A. Gallagher, Arbitrator