2008
WI App 13
court of appeals of
published opinion
Case No.: |
2007AP813 |
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Complete Title of Case: |
†Petition for Review filed |
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Matthew D. Kriska, Petitioner-Appellant, v. Wisconsin Employment Relations Commission and Department of Corrections, Respondents-Respondents. |
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Opinion Filed: |
December 11, 2007 |
Submitted on Briefs: |
November 6, 2007 |
Oral Argument: |
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JUDGES: |
Curley, P.J., Wedemeyer and Fine, JJ. |
Concurred: |
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Dissented: |
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Appellant |
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ATTORNEYS: |
On behalf of the petitioner-appellant, the cause was
submitted on the briefs of JoAnne
Breese-Jaeck and Anthony P. Hahn
of Hostak, |
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Respondent |
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ATTORNEYS: |
On behalf of the respondents-respondents, the cause was submitted on the brief of J.B. Van Hollen, attorney general and David C. Rice, assistant attorney general. |
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2008
WI App 13
COURT OF APPEALS DECISION DATED AND FILED December 11, 2007 David R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL
from an order of the circuit court for
Before Curley, P.J., Wedemeyer and Fine, JJ.
¶1 WEDEMEYER, J. Matthew D. Kriska appeals from a circuit court order affirming the decision of the Wisconsin Employment Relations Commission (WERC) dismissing Kriska’s appeal on the basis that it did not have jurisdiction. Kriska contends that WERC does have jurisdiction to hear the appeal of his dismissal from employment as a Supervising Officer 2 by the Wisconsin Department of Corrections (DOC). He argues that although he was in a promotional probationary period for the Supervising Officer 2 position, he had acquired permanent status in his previous position as Supervising Officer 1. Thus, he asserts that he should have the right to appeal his dismissal. Because the statutes allow appeals only when an employee has the status of “permanent status in class,” and not for a position wherein the employee is serving a promotional probationary period, we affirm.
BACKGROUND
¶2 In July 1995, Kriska was hired by DOC as a correctional officer. In November 2001, he was promoted to the position of Lieutenant (Supervising Officer 1). He successfully completed the probationary period associated with that promotion and acquired permanent employee status in the Supervising Officer 1 position.
¶3 Subsequently, in November 2005, Kriska was promoted to Captain (Supervising Officer 2). This position required a twelve-month probationary period.[1] On January 11, 2006, Kriska was advised that a subordinate had alleged that he had sexually harassed the female officer by asking her for a “lap dance.” Kriska denied asking for a “lap dance,” but did admit that he made an inappropriate joke that the subordinate “danced pretty good” at a Friday night party. After further investigation and several meetings, Kriska received a letter in March 2006, notifying him that his promotional probationary period for Captain was being terminated due to violation of work rules #7 and #13,[2] and he was being returned to his Lieutenant position at that corresponding rate of pay. Kriska appealed from the dismissal, alleging that he was denied his right to a “just cause” determination.
¶4 DOC filed a motion to dismiss Kriska’s appeal on the grounds that WERC lacks jurisdiction to hear the appeal of the termination of an employee’s probationary period. In response, Kriska filed a brief opposing the motion to dismiss, asserting that because he obtained permanent status in class long before the current promotion, and because the promotion was within the same department, he cannot be dismissed without a just cause determination on appeal, pursuant to Wis. Stat. § 230.44(1)(c) (2005-06),[3] which provides: “If an employee has permanent status in class … the employee may appeal a demotion, layoff, suspension, discharge or reduction in base pay to the commission, if the appeal alleges that the decision was not based on just cause.”
¶5 In September 2006, WERC dismissed Kriska’s appeal for lack of subject matter jurisdiction. WERC provided the following explanation for its decision:
Pursuant to ...
Board
of Regents v. Wisconsin Personnel Commission, 103
….
In the present case, Appellant had been promoted from a Supervising Officer 1 (SO1) position to fill an SO2 vacancy. His probationary period as an SO2 was terminated before he had obtained permanent status in that classification. Upon Mr. Kriska’s termination from the SO2 position, Respondent continued his employment by restoring him to a Supervising Officer 1 position. Probationary periods are required for all original appointments as well as all promotional appointments. Sec. ER-MRS 13.03, Wis. Adm. Code. As noted in Sec. ER-MRS 13.08(1), the “appointing authority may dismiss any employee without the right of appeal during the employee’s probationary period.” The action that was taken by DOC related solely to Appellant’s probationary status and it did not interfere with his permanent status in the Supervising Officer 1 classification. Therefore is was not a discharge that could be reviewed by the Commission pursuant to Sec. 230.44(1)(c). The distinction is clarified by Sec. ER-MRS 14.03(1):
[T]he promoted employee shall be required to serve a probationary period. At any time during this period the appointing authority may remove the employee from the position to which the employee was promoted without the right of appeal and shall restore the employee to the employee’s former position .... Any other removal, suspension without pay, or discharge during the probationary period shall be subject to s. 230.44(1)(c), Stats. (Emphasis added.)
Appellant was restored to his former position and there is no indication that the probationary dismissal was accompanied by a suspension, discharge or reduction in the base pay that Mr. Kriska had earned as an SO1. Therefore, the Commission lacks jurisdiction to review the action.
¶6 Kriska then proceeded to appeal WERC’s determination that it lacked subject matter jurisdiction to the circuit court. The circuit court, in a February 2007 written decision agreed with WERC’s analysis and affirmed the dismissal of the appeal, based on lack of jurisdiction. Kriska now appeals to this court.
DISCUSSION
¶7 The issue in this appeal is whether WERC erred in determining
that it lacked subject matter jurisdiction to hear Kriska’s appeal from DOC’s
termination of his probationary period for the Captain (SO2) position and
returning him to the Lieutenant position (SO1).
We conclude that WERC did not err.
In reviewing an agency’s determination on whether it has the power to
hear an appeal, we are presented with a question of law, which we review de novo.
Loomis v. Wisconsin Pers. Comm’n, 179
¶8 Kriska contends that the plain language of Wis. Stat. §§ 230.44(1)(c), 230.28 and 230.34(1)(a) & (1)(ar) require an employee who has achieved permanent status in any class to have appellate review for any disciplinary demotions or reductions in pay imposed during a promotional probationary period. We are not convinced that the statutes, together with the administrative code provisions, can be interpreted in such a fashion.
¶9 The statutes referenced by Kriska provide in pertinent part
as follows. As we have seen Wis. Stat. § 230.44(1)(c) states: “If an employee has
permanent status in class … the employee may appeal a demotion, layoff,
suspension, discharge or reduction in base pay to the commission, if the appeal
alleges that the decision was not based on just cause.”
¶10 We do not interpret these statutory provisions to permit an
appeal under the circumstances in this case.
Promotion within the same agency. In accordance with s. 230.28(1), Stats., the promoted employee shall be required to serve a probationary period. At any time during this period the appointing authority may remove the employee from the position to which the employee was promoted without the right of appeal and shall restore the employee to the employee’s former position …. Any other removal, suspension without pay, or discharge during the probationary period shall be subject to s. 230.44(1)(c), Stats.
Wis. Admin. Code § ER-MRS 14.03.
¶11 Based on the clear language set forth above, the only reasonable interpretation is that an employee serving a promotional probationary period can be removed from that position without the right to appeal. This is exactly what happened in the instant case. The statutory rights extended to an employee with permanent status protect the employee by requiring that the employee be returned to the pre-promotion position, rather than completely terminated from state service.
¶12 We are not convinced that an employee’s status as a permanent
employee in one position entitles him/her to permanent status rights when
serving a promotional probationary period in a different position. Neither the statutory language nor case law
in this state support such a contention.
Although no case is directly on point, Arneson v. Jezwinski, 225
¶13 In that case Arneson, a
When Arneson was promoted within [the University], he had already acquired permanent status in class and rights [in his previous position] and therefore he retained his permanent status pursuant to the dictates of Wis. Stat. § 230.28(1)(d). And as an employee with permanent status in class, the defendants were required to abide by Wis. Stat. § 230.34(1)(a) when they disciplined him, just as they would have been required to do when disciplining any other permanent status employee.
Arneson, 225
¶14 The facts in Kriska’s case are very different. Kriska achieved permanent status in class in the position of Lieutenant (SO1). The discipline he received for the alleged sexual harassment did not adversely affect his rights as they related to his pre-promotion position. The rights Kriska earned in the SO1 position were not touched. The action taken simply terminated his promotional probationary period. Thus, the Arneson decision supports WERC’s decision not to accept jurisdiction in Kriska’s case. WERC acted consistently with the dictates of Arneson.
¶15 We conclude based on the plain language of the statutes and administrative code, together with the existing case law, that WERC did not have jurisdiction to hear Kriska’s appeal. We hold that under the facts and circumstances of this case, DOC’s termination of Kriska’s probationary period for the SO2 position does not fall under Wis. Stat. § 230.44(1)(c), as DOC returned Kriska to his pre-promotion position and did not adversely affect his permanent status rights in that position. Moreover, the administrative code clearly permits dismissal “[a]t any time during” the probationary period without the right to an appeal. Wis. Admin. Code § ER-MRS 14.03. Accordingly, we affirm the decision of the circuit court, affirming WERC’s determination that it lacked subject matter jurisdiction in this case.
By the Court.—Order affirmed.
[1] In the record, Kriska asserts that the probationary period was reduced to six months due to past performance, but the State indicates that no waiver was given. It is not necessary for us to resolve this dispute.
[2] Work rule #7 states: “Making false, inaccurate or malicious statements about employees, inmates, offenders or the Department.” Work rule #13 states: “Intimidating, interfering with, harassing (including sexual or racial harassment), demeaning, or using abusive language in dealing with others.”
[3] All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.