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Setback for sexual harassment claim filed by first woman to lead American Legion

Wisconsin State Journal - 12/16/2017

Dec. 16--A state equal rights officer has dismissed a claim of sexual harassment by a prominent military veteran against the state Department of Veterans Affairs, ruling most of the allegations were too old and others failed to prove she was treated differently because of her gender.

But Amber Nikolai, who was fired by the state Department of Veterans Affairs in September and a month later became the first woman to lead the 53,000-member Wisconsin American Legion, may go to court to pursue the claim rejected earlier this month by the state Equal Rights Division, her attorney said.

"She is a tremendously ambitious, effective, talented and dedicated advocate for the interests of veterans," said her attorney, Jeff Scott Olson. "Wisconsin veterans never had a better friend than Amber Nikolai."

Nikolai, a Navy veteran who supervised programs at the department's largest veterans home, has alleged that her bosses punished her for reporting hundreds of sexually harassing text messages sent to her by an agency administrator, and for reporting poor conditions at the home -- first to her bosses and then to state investigators, legislators and a newspaper.

The state veterans affairs department said it takes sexual harassment seriously, but it has fought Nikolai's allegations. On Dec. 4, an officer for the Department of Workforce Development's Equal Rights Division dismissed most of the claims because rules prohibit consideration of potential violations that occurred more than 300 days before a complaint is filed. Nikolai filed her complaint in May about behavior that allegedly began in 2014.

Olson said Nikolai's complaint is far from extinguished. She can appeal, but she may instead take the case to court, where the allegations would fall well within a six-year statute of limitations, a final decision can be reached more quickly, and the potential remedies are greater, Olson said.

Nikolai says she suffered retaliation for reporting that a high-ranking administrator, Randy Nitschke, sent her hundreds of inappropriately intimate text messages and then threatened to falsely claim a political appointee subjected her to physical and verbal sexual harassment.

Nitschke, who was administrator of the department's veterans homes division, told investigators he made the threats to Nikolai and to the department's top executive in an attempt to save his job at a time when he thought he was about to be fired.

There are varying accounts of why Nitschke feared for his job. He said it was because he had knowledge of sexual harassment that made his bosses unhappy with him. Nikolai said he told her it was because he believed -- wrongly -- that she had previously reported him for sexually harassing her.

He issued the threats in October 2015 about a week after Nikolai met with John Scocos, who was then the department secretary. She said she told Scocos about poor conditions at the King Veterans Home that she had previously reported to her supervisor.

Reports about veterans receiving poor care and that the department was covering it up were detailed in a series of articles in The Capital Times beginning in August 2016. The department eventually accused Nikolai of violating work rules by helping the newspaper.

Documents released as part of the Equal Rights Division decision and in a state personnel office report also released earlier this month show for the first time that Nikolai alleges the text messages from Nitschke included sexual advances and she was punished for refusing them.

The state personnel office investigation completed in the first week of December 2015 led to a determination that Nitschke harassed Nikolai by making the threats.

Nitschke was reprimanded, given a three-day suspension and returned to his job less than two weeks after the investigation concluded. On July 21 this year, Nitschke transferred to the Union Grove veterans home, where he is commandant, said department spokeswoman Carla Vigue. His $116,605 salary has not changed, she said.

Nikolai's complaint says nobody would tell her the results of the investigation. And in the months after reporting Nitschke's threats and texts she was twice reassigned to less desirable duties, and the department rescinded permission she'd been granted earlier to give presentations on veterans issues.

In addition, she learned that her attendance record was being secretly reviewed, and she was questioned in a disciplinary setting about leaking information to the press about the veterans homes at a time when they were facing intense public scrutiny. Nikolai complained several times about department retaliation.

The department didn't reduce her pay when it changed her duties, and she had received high marks in a performance evaluation.

In late November 2016, she went on medical leave for emotional stress on the recommendation of her doctors.

On Sept. 28 this year, Nikolai was fired because she didn't return to work after her allowable leave time was exhausted, Vigue said.

Vigue emphasized that Nitschke had been disciplined for "harassment," not "sexual harassment."

Vigue and state personnel office spokesman Steve Michels didn't respond when asked how that determination was made. But Nikolai's attorney said Nitschke's text messages and his threat to spread stories about her clearly constituted sexual harassment.

Fighting for veterans rights

Agency officials were surprised that Nikolai never came back to work, Vigue said.

"We worked extensively with Ms. Nikolai, made every available attempt to bring her back to work, and anticipated that she would return," Vigue said.

However, Nikolai's doctors never cleared her to go back to the department, her attorney said. The veterans affairs department workplace, for obvious reasons, created emotional stress that the American Legion job didn't, Olson said.

Nikolai declined to comment for this article.

In January, Scocos resigned as department secretary amid a swirl of concerns about state veterans homes. Gov. Scott Walker replaced him with Daniel Zimmerman, a veteran with strong connections to the Republican Party who has vowed to make changes.

Vigue said that last month deputy secretary Tom Rhatican told senior managers to review the department sexual harassment policy and to remind all supervisors about the process for reporting complaints. The department human resources director reviewed the policy and has not made changes, she said.

"The Department takes any allegations of harassment seriously," Vigue said. "We are committed to a culture that is open, transparent and forthright."


(c)2017 The Wisconsin State Journal (Madison, Wis.)

Visit The Wisconsin State Journal (Madison, Wis.) at www.wisconsinstatejournal.com

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