083116-capt-nws-coverphoto-kingentrance

The sign at the entrance for the Wisconsin Veterans Home at King, located in King, Wisconsin. 

PHOTO BY SAIYNA BASHIR

An employee at the Wisconsin Veterans Home at King has filed a complaint against the state alleging she was discriminated against on the job.

Amber Nikolai, the former member and public relations director at the King home and the current volunteer and event coordinator, said she was discriminated against because of her sex and her efforts to oppose discrimination at the agency against others.

The complaint, filed with the state Department of Workforce Development, includes allegations that are unproven at this point.

Wisconsin Department of Veterans Affairs spokeswoman Carla Vigue said in an email Wednesday that it did not have a response to the complaint but was reviewing it. The agency has 30 days to formally submit a response to the Department of Workforce Development. 

In the complaint, Nikolai's attorney, Jeff Scott Olson, outlined how the current administrator for veterans homes Randy Nitschke "began a campaign of unlawful sexual harassment of Ms. Nikolai" in 2014. 

Nitschke sent Nikolai hundreds of "personal text messages which were inappropriately personal and intimate," according to the complaint. Nischke then told other WDVA employees and former Sec. John Scocos that Nikolai had complained of sexual harassment when she had not, the complaint reads. 

The Department of Administration investigated the incident at the time and found that Nitschke made false allegations that a different employee at WDVA in Madison sexually harassed Nikolai, according to the DOA investigation report. Investigators determined the harassment was "an effort to save himself from being terminated." Nitschke has denied the allegations, but did receive a letter of reprimand with the weight of a three-day suspension, said Vigue, the department's spokeswoman.

After the Nitschke incident, Nikolai was reassigned to "less desirable duties and circumstances on at least two separate occasions," according to the complaint.

In November 2015, Nikolai was stripped of all supervisory roles and responsibilities and directed to report to the central office in Madison. In May 2016, Nikolai was reassigned again to a position that paid the same but involved "less authority and responsibility," according to the complaint. 

Following the Cap Times publication of an investigation into staffing problems, negligent care and money transferred away from the King home, Nikolai was investigated by the agency for allegedly disclosing personal contact information of another King employee. 

In a "letter of expectations" to Nikolai in March, the department said Nikolai admitted to releasing employee information, though emails from Nikolai to WDVA officials that were reviewed by the Cap Times show she denied releasing any information. 

The letter, signed by former WDVA human resources director Chris Neitzel and Nitschke "represented, in significant part, retaliation against Ms. Nikolai for reporting Mr. Nitschke's campaign of sexual harassment," according to the complaint. 

"We filed these claims because we have strong cases — a pattern of adverse decisions affecting women, and a clear chain of cause and effect between Ms. Nikolai's complaint of sexual harassment and the investigatory and disciplinary activity directed against her later on," Olson said. 

Olson also noted that prior to Nikolai joining the agency, the department had "compiled a significant record of unlawful discrimination against female employees in positions of responsibility."

Nikolai is the second female employee to file a complaint against the Wisconsin Department of Veterans Affairs over the last year. Laura Tetting, a current human resources manager at the agency, filed a complaint in December alleging she was discriminated against because of her Native American race, her gender, her age and her efforts to oppose alleged discrimination at the agency against others.

Nikolai's complaint is focusing on sex discrimination because Wisconsin's whistleblower laws are so narrow, said Nikolai's attorney, Jeff Scott Olson.

"Our state's whistleblower laws were weak when they were enacted — full of traps for the unwary or just plain unlucky — and the courts have made them weaker," Olson said in an email. "We may bring a federal First Amendment retaliation case at some point, but we have a six-year statute of limitations on that case, so we have time to make that decision in a deliberate way. That will be the case where we can try to prove retaliation for Ms. Nikolai's 'whistleblowing' on the WDVA's failings in the area of patient care."

Nikolai's complaint comes as the Legislative Audit Bureau is set to release the second of two reports on the King home. Its first report, released last month, showed facilities improvements were delayed as $55 million was transferred away from the home over a decade. The second report will evaluate quality of care issues and staffing issues there.

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Nikolai was the employee discussed in internal emails exchanged in February between former King commandant Jim Knight and Neitzel, the former WDVA human resources director. Neitzel left the job in April.

The employee has "been a constant whistleblower since August and hasn't stopped from what I can tell," wrote Knight to Neitzel. Knight affirmed that the employee's position description would be "downgraded" and that the employee would be "demoted ... due to proven work rule violations."

Neitzel later corrected Knight and said Nikolai was not considered a whistleblower by the agency.

Under the Wisconsin Fair Employment Law, a state equal rights officer will now investigate to determine if WDVA violated the law.

If the equal rights officer finds no probable cause, the employee can appeal and the case will go to an administrative law judge, who will hear the case in a court-like proceeding and hear testimony and evidence.

If the judge finds no probable cause, the employee can again appeal and the case will go before the Labor Industry Review Commission. Any further appeal would then go to the circuit court.

If discrimination is proven, an Administrative Law Judge can "award back pay, reinstatement, lost benefits, interest and attorney’s fees and costs. Other remedies may be awarded, based upon the circumstances of the case," according to DWD.

If Nikolai files a lawsuit in court under federal civil rights laws, a judge could also award additional damages, said Olson.

Getting a payout is the "only way the legal system can make up for injuries like those that have been inflicted on Amber that are serious,” Olson said. "It would be nice if we had a better repair tool, but we don’t."

 

Katelyn Ferral is The Cap Times' public affairs and investigative reporter. She joined the paper in 2015 and previously covered the energy industry for the Pittsburgh Tribune Review. She's also covered state politics and government in North Carolina.