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COURT OF APPEALS DECISION DATED AND RELEASED July
19, 1995 |
NOTICE |
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A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals. See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 94-1545
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
KATHY
SCHMIDT,
Plaintiff-Appellant,
v.
WISCONSIN
PERSONNEL
COMMISSION,
Defendant-Respondent.
APPEAL
from a judgment of the circuit court for Winnebago County: ROBERT HAWLEY, Judge. Affirmed.
Before
Brown, Nettesheim and Snyder, JJ.
PER
CURIAM. Kathy Schmidt appeals from a
circuit court judgment affirming the Wisconsin Personnel Commission's
determination that the Winnebago Mental Health Institute did not abuse its
discretion when it decided not to hire her as a laundry worker. We affirm.
Pursuant
to a complaint filed by Schmidt in November 1988, the Wisconsin Personnel
Commission (the Commission) held a hearing to address whether Winnebago's
failure to hire her to fill a Laundry Worker 2 position was an abuse of
discretion under § 230.44(1)(d), Stats.[1] The Commission made the following findings
of fact. In August 1988, a Laundry
Worker 2 position opened at Winnebago.
The position required distributing and inventorying linen and patient
clothing, operating a sewing room, and performing miscellaneous assigned
duties. In September 1988, Winnebago's
personnel assistant, Margaret Cox, temporarily filled the position with Mary
Blount, a limited term employee who had Laundry Worker 1 status. In the Laundry Worker 1 position,
Blount's second-level supervisor was Frank Mazanka, the head of Winnebago's
housekeeping or environmental services department and Blount's son-in-law. Because Blount was on the list of persons to
be considered for the permanent position, Cox advised Barbara Kuhn, Winnebago's
management services director and Mazanka's supervisor, that Mazanka should have
nothing to do with the selection process.
Eight
candidates, including Blount and Schmidt, were interviewed for the
position. Each performed a practical
test consisting of various job-related tasks and answered a series of interview
questions about their experience in the various skills required for the
position. Blount received the highest
total score on the tests and received "excellent" references for
quality and quantity of work, learning and initiative, and "good"
references for her ability to get along with others. She was also rated highly dependable. The Commission found Blount was hired because she had good
references and applicable laundry service experience.
Schmidt's
score placed her fourth on the list of candidates.[2] The Commission found that Schmidt had been
employed at Winnebago as a food service worker since 1965 and that she had no
work experience in laundry or linen service and no transfer rights to a Laundry
Worker 2 position. The Commission found
"[t]here is simply no basis on this record to conclude that [Schmidt] was
better qualified than Ms. Blount who, as a [limited term employee], had
previously performed similar duties to those assigned to the vacant
position." Schmidt filed a
complaint challenging the selection process.
The
Commission found that Mazanka was excluded from the selection process. There was testimony from persons involved in
the selection process that Mazanka did not influence the process. The Commission considered evidence offered
by Schmidt that Mazanka had been involved, either directly or indirectly, in
the selection process but did not find this evidence persuasive. The Commission found that the November 1989
investigation of Mazanka and Kuhn for misconduct had only "a
circumstantial relationship" to the employment decision.[3] The Commission concluded that Schmidt did
not meet her burden to prove that the decision not to hire her for the Laundry
Worker 2 position was an abuse of discretion.
We
review the Commission's decision, not that of the circuit court, and we will
affirm the Commission's findings of fact if they are supported by credible and
substantial evidence in the record. See
Hoell v. LIRC, 186 Wis.2d 603, 612, 522 N.W.2d 234, 238 (Ct. App.
1994). If reasonable minds could arrive
at the same conclusion reached by the Commission, we will affirm. See Farmers Mill of Athens,
Inc. v. DILHR, 97 Wis.2d 576, 579, 294 N.W.2d 39, 41 (Ct. App.
1980). It is the Commission's function
to weigh and determine the credibility of the evidence and to draw inferences
from it. Id. at 580, 294
N.W.2d at 41. If more than one
inference may reasonably be drawn from the evidence, the Commission's choice
among or between inferences is conclusive.
Id. We will give
weight to the Commission's conclusion that Winnebago did not abuse its
discretion in declining to hire Schmidt if that conclusion is supported by
substantial evidence in the record. See
Seep v. Personnel Comm'n, 140 Wis.2d 32, 38-39, 409 N.W.2d 142,
144 (Ct. App. 1987).
We
turn to Schmidt's appellate arguments.
Schmidt argues that evidence that Blount's score sheet was altered shows
that the hiring process was somehow tainted.
The Commission found that Blount's score was altered to reflect only the
maximum number of points available.[4] The Commission found that this was not a
significant factor in the employment decision.
Even corrected, Blount's score still exceeded Schmidt's.
Schmidt
argues that the Commission created evidence regarding test scoring and
results. We disagree with Schmidt's
characterization of the Commission's analysis.
The Commission was unable to determine the method by which the
applicants' tests were scored.
Consequently, it applied several possible methods to the raw scoring
data and found, in each instance, that Blount's score exceeded Schmidt's. In so doing, it interpreted evidence in the
record and, in the process, confirmed that Blount had the highest overall
score.
Finally,
Schmidt argues that Mazanka's "corrupt[ing] influence" tainted the
selection process and that there is no credible evidence that Mazanka was
outside the selection process. She
points to Kuhn's alleged misconduct and the participation in the process of
Joseph Selner, a subordinate of Mazanka's.
She also chastises the Commission for relying upon Mazanka's own
statement that he was not involved in the selection process.
It
was for the Commission to weigh the evidence.
See Farmers Mill, 97 Wis.2d at 580, 294 N.W.2d at
41. Schmidt overlooks the Commission's
findings that Bill Hebert was involved in the selection process and he was
unaware that Blount and Mazanka were related.
The Commission also found that there was no significant disparity
between Hebert's and Selner's rating of the same candidate. We reject Schmidt's contention that the
evidence mandates a finding that Mazanka's influence permeated the selection
process. The Commission found that the
investigation of Mazanka and Kuhn had only "a circumstantial
relationship" to the hiring decision.
Based on this record, reasonable minds could have arrived at the same
conclusion as the Commission on this question.
See id. at 579, 294 N.W.2d at 41.
By
the Court.—Judgment affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.
[1] Section 230.44, Stats., provides, in pertinent
part:
(1) Appealable actions and steps. Except as
provided in par. (e), the following are actions appealable to the commission
under s. 230.45 (1) (a):
....
(d) Illegal action or abuse of discretion. A personnel action after certification
which is related to the hiring process in the classified service and which is alleged to be illegal or an
abuse of discretion may be appealed to the commission.