COURT OF APPEALS DECISION DATED AND RELEASED June 29, 1995 |
NOTICE |
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.
94-2496
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
DOUGLAS DIETZEN,
Plaintiff-Appellant,
v.
DIANE HARDT, LYNN WILLIAMSON,
GREGG T. FRAZIER, DALE J. HUTTER,
MICHAEL D. RAY,
Defendants-Respondents.
APPEAL from an order of
the circuit court for Dane
County: ANGELA B. BARTELL, Judge. Affirmed.
Before Gartzke, P.J.,
Dykman and Sundby, JJ.
DYKMAN,
J. Douglas Dietzen sued a number of employees of the
Department of Revenue (DOR) who, he asserted, were instrumental in firing him
from his job with DOR. The State moved
to dismiss his complaint because Dietzen had failed to file a notice of claim
with the attorney general, as required by § 893.82(3), Stats.[1] The State filed affidavits in support of its
motion, and also asserted that Dietzen's complaint failed to state a
claim.
The trial court granted
the State's motion, concluding that Dietzen's failure to file a notice of claim
was fatal as to his claim for damages, and that his claim for an injunction
failed to state a claim upon which relief might be granted. We affirm for the same reasons.
Because the State
attached affidavits to its motion to dismiss, and the trial court did not
exclude them, we treat the State's motion to dismiss as a motion for summary
judgment. Section 802.06(3), Stats.
Our review of the trial court's decision to grant summary judgment is de
novo. Stann v. Waukesha
County, 161 Wis.2d 808, 814, 468 N.W.2d 775, 778 (Ct. App. 1991). We follow the same methodology as the trial
court. Universal Die &
Stampings, Inc. v. Justus, 174 Wis.2d 556, 560, 497 N.W.2d 797, 799
(Ct. App. 1993). We first examine the
complaint to determine if it states a claim, and then the answer to ascertain
whether it presents a material issue of fact.
Id. If they do, we
then look to the moving party's affidavits to determine if a prima facie
case for summary judgment has been established. Id. If it
has, we then examine the opposing party's affidavits to determine whether there
are any material facts in dispute which would entitle the opposing party to a
trial. Id.
Expansively construed, Dietzen's
complaint asserts that he was fired without statutory authority. He also asserts that all defendants are
state employees. But he fails to assert
that he complied with § 893.82(3), Stats. Dietzen's failure to do so bars his right to
bring an action for damages under state law.
Casteel v. McCaughtry, 168 Wis.2d 758, 771, 484 N.W.2d
579, 584 (Ct. App. 1992), modified, 176 Wis.2d 571, 500 N.W.2d 277, cert.
denied, 114 S. Ct. 327 (1993).
Because our examination of Dietzen's complaint reveals that he has not
stated a claim for damages, he fails the first step of summary judgment
methodology. We conclude that the trial
court correctly dismissed Dietzen's claim for damages.
Dietzen also requests
relief which can best be described as an injunction. He wants the trial court to order the defendants not to
disseminate any document, record or other paper prepared during a review of his
work performance. He also wants the
defendants to be enjoined from maintaining records except in a manner
authorized by the Department of Employment Relations (DER). He also asks that his co-workers be enjoined
from reviewing his work performance and that all defendants be enjoined from
using any document prepared which pertains to his work performance.
Section 893.82(3), Stats., does not apply to claims for
injunctive relief. Lewis v.
Sullivan, 188 Wis.2d 157, 169, 524 N.W.2d 630, 634 (1994). We conclude that Dietzen's complaint states
a claim. The State's answer denies that
the defendants' actions were improper.
Issue is joined.
Insofar as Dietzen is
seeking an injunction preventing his termination, his cause of action is
moot. A case is moot when a
determination is sought which, if rendered, could have no practical effect upon
a then-existing controversy. State
ex rel. McDonald v. Circuit Court, 100 Wis.2d 569, 572, 302 N.W.2d 462,
463 (1981). Dietzen has already been
fired. Thus, we will not address his
request for an injunction preventing his co-workers from reviewing his
work. Nor will we address his request
that the defendants be enjoined from internally using any document pertaining
to his work performance.
Consequently, we are
left with Dietzen's claim for an injunction to prevent the defendants from
disseminating to the public documents prepared during their review of his work
performance and for an injunction preventing the defendants from maintaining a
system of records except as authorized by DER.
Both of these requests are founded upon Dietzen's belief that DOR's use
of an employee's peers to review his or her work is improper.
We will address Dietzen's arguments
concerning "peer review" serially.
First, he argues that a DER Bulletin and a DOR policy directive do not
authorize the use of peer review. But
these documents are not of record. An
appellate court cannot consider facts outside the record even though stated as
such in the briefs. Keplin v.
Hardware Mut. Casualty Co., 24 Wis.2d 319, 326, 129 N.W.2d 321, 324
(1964). Nor do we consider the
newspaper articles that Dietzen has cited as authority for his contention that
peer review is a prohibited practice.
Newspapers have no authority as law in Wisconsin.
Next, Dietzen argues
that the defendants were acting outside of their scope of employment. In this way, he hopes to avoid the
§ 893.82(3), Stats.,
requirement that he serve a notice of his claim on the attorney general. But the plaintiff in Elm Park Iowa,
Inc. v. Denniston, 92 Wis.2d 723, 732, 286 N.W.2d 5, 9-10 (1979), made
the same argument and we rejected it:
A careful reading of the complaint necessitates
the conclusion that all these acts of continuing conspiracy alleged were
accomplished while D.R.& S. were working on an annual inspection of Elm Row
in 1974. There are no other factual
allegations in the complaint dealing with the acts of D.R.& S. other than
the conclusion that the conspiracy continues from 1974 to date. Just because a complaint states that
these "acts are beyond the scope of their employment and
authorization" does not take a case beyond the notice of claim
requirements .... This is especially
true when the complaint alleges that the acts involved were done while making
an annual inspection of Elm Row in 1974.
(Emphasis
added.)
Dietzen focuses on the
part of § 893.82(3), Stats.,
requiring that the act be committed "in the course of" an employee's
duties. But the statute also includes
acts "growing out of" an employee's duties. Elm Park dictates that when we undertake a review
of an assertion that an act is outside of an employee's duties, we are to look
at the complaint to determine whether the acts alleged grew out of an
employee's duties or were committed in the course of those duties. Section 893.82(3) is broad enough to include
any act of an employee that arises from intentional tortious conduct. Elm Park, 92 Wis.2d at 734,
286 N.W.2d at 10.
Dietzen's complaint
asserts that the defendants were DOR employees. The relevant portions of the complaint allege that they took part
in an extensive review of Dietzen's work performance. Dale J. Hutter directed the review and Michael D. Ray
conducted it. Hutter, Gregg T. Frazier
and Diane L. Hardt were DOR employees to whom Dietzen complained that personnel
records were not being kept confidential.
Hutter and Hardt rejected Dietzen's grievances.
We conclude, as we did
in Elm Park, that the acts of which Dietzen complains were acts
growing out of the defendants' duties.
Hutter is alleged to be a revenue audit supervisor. The nature of a supervisor's work is to
direct other employees. Dietzen asserts
that Hutter supervised him in an improper way.
But that allegedly improper behavior grew out of Hutter's duties. Dietzen also asserts that Ray allegedly
reviewed Dietzen's work performance because Hutter told him to do so. It is absurd to contend that an employee has
no duty to follow the instructions of his or her supervisor. Ray's acts grew out of his duties as
dictated by Hutter.
Frazier and Hardt
allegedly did not respond to Dietzen's complaints. But inherent in Dietzen's assertion that they did nothing is the
assumption that they were empowered or required to do something. Once we grant Dietzen that assumption, it
inevitably follows that their failure to act grew out of their duties. And if they were not empowered or required
to do something, then their failure to act is irrelevant.
Dietzen does not explain
what Williamson did or failed to do.
Consequently, we do not explore her asserted liability further.
Next, Dietzen argues
that peer reviews are inherently "prohibitive." The gist of this argument is that peer
review damages a person's reputation.
But we have explained that Dietzen's failure to comply with
§ 893.82(3), Stats., prevents
him from recovering damages, and enjoining DOR from conducting further peer
reviews of his work would be futile because Dietzen no longer works for DOR.
Dietzen's next argument
is that the Wisconsin Open Records Law, §§ 19.31-.39, Stats., prohibits the disclosure of his
work performance records. The Open
Records Law is designed to force government to reveal records, not to permit it
to hide them. An exception to the open
records law permits a record custodian to deny access to personnel files. Village of Butler v. Cohen,
163 Wis.2d 819, 831, 472 N.W.2d 579, 584 (1991). But permitting a custodian to deny access to a personnel file is
a long way from requiring that a custodian must deny such access. Dietzen cites nothing in the Open Records
Law which requires a custodian to deny access to personnel files. We fail to see how the development or making
of a personnel file mandates the release of those files.
Dietzen again asserts
that the Open Records Law required that his personnel records be kept secret. But this time he couples that argument with
an assertion that § 230.13(1)(c), Stats.,
requires that disciplinary records be kept secret. The legislature, however, has not required that these records be
kept secret. Section 230.13(1)(c)
reads in pertinent part:
Except as provided in s. 103.13, the secretary
and the administrator may keep records of the following personnel
matters closed to the public: ....
(Emphasis
added.)
"May" is
generally construed as permissive while "shall" is generally construed
as mandatory especially when the word "shall" appears in close
juxtaposition. Estate of Warner,
161 Wis.2d 644, 652, 468 N.W.2d 736, 739 (Ct. App. 1991). That is true in the instant case. Section 230.13(2), Stats., reads, "Unless the name of
an applicant is certified under s. 230.25, the secretary and the
administrator shall keep records of the identity of an applicant for a
position closed to the public."
(Emphasis added.) We conclude
that § 230.13(1)(c) does not require that Dietzen's personnel records be
kept closed to the public.
Next, Dietzen contends
that the Open Meetings Law, §§ 19.81-.88, Stats., provides a basis for injunctive relief. But the purpose of the Open Meetings Law is
to require that government business be done in public, unless matters such as
personnel records are being discussed.
Section 19.85(1)(f). This
statute permits, but does not require, personnel matters to be discussed in
secret. Section 19.85(1) notes
that some meetings of governmental
bodies may be convened in closed session, not that they must be
held in closed session. The Open
Meetings Law is inapplicable to Dietzen's request for injunctive relief.
Dietzen terms his last
issue, "The Wisconsin Personnel Commission Does Not Have Jurisdiction To
Review Employer Conduct During a Performance Evaluation." He does so because if that is true, he could
argue that he was deprived of due process of law and seek damages. His failure to comply with § 893.82(3),
Stats., would not bar his
suit. But he still would have to show
that he was not provided an adequate state remedy before the commission. He asserts that his commission remedy is
inadequate because he could not be awarded back pay. He cites Seep v. State Personnel Comm'n., 140
Wis.2d 32, 42, 409 N.W.2d 142, 145 (Ct. App. 1987), for this proposition.
Dietzen misinterprets Seep. Seep is limited to the
proposition that back pay is not available in reinstatement cases. Id.
In Seep, we approved the commission's
interpretation of § 230.43(4), Stats.,
which permitted back pay when an employee was unlawfully removed from his or
her position. Id. Seep was unlawfully denied
reinstatement, and we affirmed the commission's denial of back pay. Id.
Dietzen was never entitled to reinstatement because he was
fired. Had Dietzen been unlawfully
fired, he would have been entitled to back pay. He therefore had an adequate state remedy before the commission
and he cannot bring a suit alleging denial of due process.
By the Court.—Order
affirmed.
Not
recommended for publication in the official reports.
[1] Section
893.82(3), Stats., provides:
Except as provided in sub. (5m), no civil action or civil proceeding may be brought against any state officer, employe or agent for or on account of any act growing out of or committed in the course of the discharge of the officer's, employe's or agent's duties, and no civil action or civil proceeding may be brought against any nonprofit corporation operating a museum under a lease agreement with the state historical society, unless within 120 days of the event causing the injury, damage or death giving rise to the civil action or civil proceeding, the claimant in the action or proceeding serves upon the attorney general written notice of a claim stating the time, date, location and the circumstances of the event giving rise to the claim for the injury, damage or death and the names of persons involved, including the name of the state officer, employe or agent involved. A specific denial by the attorney general is not a condition precedent to bringing the civil action or civil proceeding.