Milwaukee Journal Sentinel

Judge dismisses order against seven workers

Former ThedaCare employees will be allowed to start new jobs

- Madeline Heim

APPLETON - Seven health care workers will be able to start their new jobs at Ascension St. Elizabeth Hospital in Appleton after a judge dismissed a temporary restrainin­g order Monday that was barring them from doing so at the request of their former employer, ThedaCare.

Outagamie County Circuit Court Judge Mark McGinnis ruled that ThedaCare’s arguments were not enough to uphold the injunction.

McGinnis said he signed the initial restrainin­g order Friday because of the gravity of the situation that ThedaCare laid out in its complaint. Wisconsin statute says the court should give “substantia­l weight” to any adverse effect on public safety when deciding what to require in the order.

Lawyers for ThedaCare had argued the region would be in danger of not having health care for severely injured patients or people who had suffered strokes if the seven employees moved to Ascension for their Monday start date.

But after Monday’s hearing, McGinnis said ThedaCare could rely on alternate staffing solutions it already is pursuing to preserve care, including crosstrain­ing employees who do similar jobs at ThedaCare’s Appleton hospital.

The broader case, in which ThedaCare argues that Ascension inappropri­ately group-recruited these employees, will go forward in court, but the employees are free to begin their new jobs on Tuesday. A lawyer for ThedaCare said the seven employees would be compensate­d for Monday’s missed work at the higher wage they would have had if they’d started as planned at Ascension.

Testimony on Monday from the employees, who worked together for years at ThedaCare’s Neenah hospital, described a tight-knit team of technician­s and nurses who wanted a better work-life balance for themselves and their colleagues.

Kailey Young, a former interventi­onal radiology technician at ThedaCare and the first of the group to apply to Ascension, said she had worked at ThedaCare for almost 11 years. She had planned to stay there but became disgruntle­d last March when two other employees on her team were let go for reasons that she did not think were right.

At that point, she said, she began to look for other work. Because her position requires her to live within 30 minutes of the hospital, Ascension St. Elizabeth was her only other option. She applied for an open position at Ascension at the end of last year.

She encouraged the other three technician­s on her team to apply for other open roles. When they each had received offers, they approached ThedaCare on Dec. 21 and asked if the hospital would match the offers.

They were told they would not be matched and that ThedaCare leadership understood the seriousnes­s of losing all four technician­s but was willing to let them go, Young said.

Young said on Monday she would not return to work at ThedaCare even if the injunction was upheld. It hurt to have her former employer argue that she and her colleagues don’t care about the good of the community, she said.

Fellow technician Michael Preissner’s testimony largely echoed Young’s.

A few days before his last day at ThedaCare, Preissner said he’d been made an offer to stay that matched Ascension’s in pay, but not in the amount of time he’d have to be on-call, so he declined.

“This is not how you treat employees,” Preissner said Monday. When ThedaCare took legal action, he said, “my willingnes­s to help them out died.”

Amber Kohler, a registered nurse who worked on the interventi­onal radiology team and also applied and accepted a job at Ascension, said she did not know that the technician­s on her team were leaving when she applied for the job. She submitted her resignatio­n Dec. 29. Her last day was Jan. 14.

On that day, Kohler testified, she was told that someone would reach out to her and her husband, Andrew, also a nurse on the same team, about staying on and receiving a retention bonus. That conversati­on never came, she said.

Sean Bosack and Daniel Flaherty, who argued the case for ThedaCare, maintained the health system’s earlier position that losing seven of 11 members of their interventi­onal radiology and cardiovasc­ular team would jeopardize the care of patients who needed high-level stroke and trauma support.

Bosack questioned Dr. Ray Georgen, who’s contracted with ThedaCare to oversee trauma medicine, and Lynn Detterman, president of ThedaCare-Neenah, about the impact of the staff members’ departures and what had been done to try to work out a solution.

Last year, 21 trauma patients and eight stroke patients were transferre­d from Ascension St. Elizabeth to ThedaCare-Neenah for a higher level of care that the hospital, which is a Level II trauma center and a comprehens­ive stroke center, can provide, Detterman said. Both she and Georgen said the transfers have never gone the opposite way.

In conversati­ons to try to smooth the transition of the employees from ThedaCare to Ascension, Detterman said she was “shocked” to hear Ascension leaders say that trauma and stroke patients who couldn’t be treated at ThedaCare could be taken to hospitals with similar certifications in Green Bay. Those hospitals had been so full in recent weeks that they were turning away patients from the emergency room, she said.

In his closing argument, Flaherty asked McGinnis to consider the possibilit­y of a patient dying during a transfer from Appleton to Green Bay, Milwaukee or Madison because St. Elizabeth was not able to care for them and ThedaCare-Neenah did not have the staff.

But Ascension attorney David Muth again argued ThedaCare had weeks to fix its problem, and in the week since many of the employees had their last day, had been able to piece together a solution that allowed them to keep offering high-level care.

In his decision, McGinnis said the inability of the two health systems to come to an agreement without involving the court was “sad.” He called the employees “collateral damage” in a dispute between large corporatio­ns and said the community does not benefit if they are not able to go to work.

“They don’t want to be here (in court),” McGinnis said. “Somehow, we’ve put them here.”

A statement from an Ascension spokespers­on Monday afternoon said the hospital welcomes its newest associates and was pleased with the court’s decision to dismiss the temporary restrainin­g order. ThedaCare had not issued a statement on the ruling at the time this story went to press.

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