|
COURT OF
APPEALS DECISION DATED AND
RELEASED February
29, 1996 |
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. 95-0747
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
VERNON
SEAY,
Petitioner-Appellant,
v.
WISCONSIN
PERSONNEL COMMISSION,
Respondent-Respondent.
APPEAL
from an order of the circuit court for Dane County: MORIA KRUEGER,
Judge. Affirmed.
Before
Gartzke, P.J., Dykman and Sundby, JJ.
SUNDBY,
J. Appellant Vernon Seay appeals from an order of the Dane
County Circuit Court entered March 3, 1995, which affirmed a decision of the
Wisconsin Personnel Commission. The
Commission determined that it lacked jurisdiction under § 230.44(1)(b), Stats., to review Seay's claim that his
employer, the University of Wisconsin-Madison, retaliated against him for
seeking a reclassification of his position and further determined that the
University did not retaliate against him.
Seay
presents two issues: (1) Did the
Wisconsin Personnel Commission have jurisdiction[1]
under § 230.44(1)(b), Stats.,
to provide him with relief from the alleged retaliation by a state employer
against him because he sought to have his position reclassified? and, (2) Did the Commission err when it
concluded that the University rebutted the presumption of retaliation contained
in the Whistleblower Law, § 230.85(6), Stats.? We conclude that the Commission had no
statutory authority under § 230.44(1)(b) to provide Seay with relief from the
alleged retaliatory acts of his supervisors and co-employees. We further conclude that the Commission
reasonably determined that the University had rebutted the presumption of
retaliation against Seay. We affirm the
order.
BACKGROUND
From
August 1987 to October 1990, Seay was a Facilities Repair Worker 1 at the
University of Wisconsin-Madison College of Agriculture and Life Sciences
Arlington Research Station. His
responsibilities at the Station included various facility maintenance and
construction tasks, including painting.
According to his job description, painting was to comprise approximately
thirty percent of his work. However,
from the time he was hired, Seay spent the majority of his time painting and in
January 1989 asked the Department of Employment Relations (DER) to reclassify
his position from Facilities Repair Worker to Painter. DER denied his request September 13, 1989.
Prior
to DER's denial, on March 29, 1989, Seay appealed to the Personnel Commission
pursuant to § 230.44(1)(b), Stats.,
because DER had not yet acted on his reclassification request. He alleged that the University and DER had retaliated
against him because he had requested reclassification.[2] On July 12, 1989, Seay filed a Whistleblower
complaint under §§ 230.80-230.89, Stats. He claimed that the University and DER
retaliated against him through his immediate supervisor, Robert Vetter, who
altered his job duties, demoted him, made his work assignments onerous, and
refused to intervene when his co-employees harassed him because he had
attempted to be reclassified.
Vetter
was unaware of Seay's Whistleblower complaint until months after the alleged
retaliatory acts had begun.[3]
However, he was aware of animosity between Seay and his co-workers, which began
in the summer of 1988. Some of Seay's
co-workers harassed and antagonized Seay, and described him as a poor employee
and an unsafe worker. The Commission
found that the incidents of harassment had occurred before Seay made his
Whistleblower complaint and, in any event, the University had successfully
rebutted his allegations of retaliation.
STANDARD OF REVIEW
Whether
an agency has authority to act presents a legal issue we review ab initio. Loomis v. Wisconsin Personnel Comm'n,
179 Wis.2d 25, 30, 505 N.W.2d 462, 464 (Ct. App. 1993) (citing Republic
Airlines v. DOR, 159 Wis.2d 247, 257, 464 N.W.2d 62, 66 (Ct. App.
1990)). Decisions of an administrative
agency that deal with the scope of its own power are not binding on this
court. Id. In deciding this issue of law, we also owe
no deference to the conclusions of the trial court. Id.
The
second issue involves the agency's findings of fact. An agency's factual findings must be affirmed if supported by
substantial evidence. Section
227.57(6), Stats.[4] Substantial evidence is "such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion." Gilbert v.
Medical Examining Bd., 119 Wis.2d 168, 195, 349 N.W.2d 68, 80 (1984)
(quoting Bucyrus-Erie Co. v. DILHR, 90 Wis.2d 408, 418, 280
N.W.2d 142, 147 (1979)).
DECISION
I. The § 230.44(1), Stats, Appeal.
Seay
requested that the DER secretary reclassify his position pursuant to §
230.09(2)(a), Stats., which
provides:
After consultation
with the appointing authorities, the secretary shall allocate each position in
the classified service to an appropriate class on the basis of its duties,
authority, responsibilities or other factors recognized in the job evaluation
process. The secretary may
reclassify or reallocate positions on the same basis.
(Emphasis added.)
The Commission has authority to hear Seay's appeal from the secretary's
denial under § 230.44(1)(b), Stats.,
which provides:
Appeal procedures.
(1) Except as provided in par. (e), the following are actions
appealable to the commission under s. 230.45(1)(a):
....
(b) Decision made or delegated by secretary. Appeal of a personnel decision under
s. 230.09(2)(a) or (d) or 230.13(1) made by the secretary or by an appointing
authority under authority delegated by the secretary under s. 230.04(1m).
(Emphasis added.)
Seay
claims that the Commission could hear his retaliation claim under this statute. However, he has failed to show how the
alleged acts of retaliation constitute an appealable "personnel
decision."
The legislative intent
as to the scope of § 230.44(1)(b), Stats.,
cannot be determined from its language, to which we must first resort. See Sturgis v. Neenah Bd. of
Canvassers, 153 Wis.2d 193, 198, 450 N.W.2d 481, 483 (Ct. App.
1989). In Marshall-Wis. v. Juneau
Square, 139 Wis.2d 112, 133, 406 N.W.2d 764, 772 (1987), the Wisconsin
Supreme Court held, "[i]f the meaning of the statute is plain, we are
prohibited from looking beyond the language of the statute to ascertain its
meaning." Section 230.44 provides
that the Commission may hear an appeal of a § 230.09(2)(a), Stats., personnel decision. Seay argues that employer retaliation
constitutes a personnel decision. We
examine case law for guidance in resolving his claim.
"Section
230.44, Stats. ... appears to be
designed to deal with appeals by employees from actions affecting their jobs,
such as discharge,[5]
reassignment,[6]
reinstatement[7] or promotion
decisions.[8]"
Ass'n of Career Employees v.
Klauser, 195 Wis.2d 602, 614-15, 536 N.W.2d 478, 485 (Ct. App. 1995)
(footnotes in original). Section
230.09(2)(a), Stats., directs the
DER secretary to allocate each position in the classified service and permits
the secretary to reallocate or reclassify positions "on the same
basis." Clearly, the secretary's
denial of Seay's request that the secretary reclassify his position was a
personnel decision. However, the
statute required that the secretary base his decision "on the same
basis" that he classified Seay's position: "its duties, authority, responsibilities or other factors
recognized in the job evaluation process." An appeal under § 230.44(1)(b) from the secretary's denial
of a reclassification request examines whether the secretary exercised his or
her discretion as to these factors. We
conclude that the commission's construction of the statute is a reasonable one
and we adopt it. See Plumbers
Local No. 75 v. Coughlin, 166 Wis.2d 971, 976-77, 481 N.W.2d 297, 299
(Ct. App. 1992). Section 230.44(1)(b)
does not give the Commission authority to review decisions of the secretary or
failures to make decisions as to administration of the state service having
nothing to do with classification or reclassification of positions.
Seay
argues, however, that the Commission's authority to prevent retaliation as a
result of an appeal is necessarily implied.
He points to Popp v. DER, No. 88-0002-PC (WPC Mar. 8,
1989), in which the Commission concluded that it had jurisdiction to set the
effective date of a reallocation decision because "the issue of effective
date is part of the reclassification decision under § 230.09(2)(a), Stats., and is appealable under §
230.44(1)(b), Stats." Id. at 5. However, we do not see how retaliation after
a reclassification decision is part of that decision. The legislature has provided a specific remedy for relief from
employer retaliation in §§ 230.80-230.89, Stats. When the legislature provides an express
remedy to correct a wrong, that remedy is exclusive. See County of La Crosse v. WERC, 170
Wis.2d 155, 175, 488 N.W.2d 94, 102 (Ct. App. 1992), rev'd on other grounds,
180 Wis.2d 100, 508 N.W.2d 9 (1993).
II. The § 230.85(6), Stats., Presumption.
Seay
claims that the Commission erred when it concluded that the University
successfully rebutted the presumption of retaliation contained in § 230.85(6),
Stats.[9] A rebuttable presumption of retaliation
arises when an employer takes disciplinary action against an employee if the
employee has made a protected disclosure.
Id.
The
Commission concluded that Seay's March 29, 1989 letter and July 12, 1989
complaint were protected disclosures.
Seay argues that Vetter, according to his testimony, was aware of the
disclosure in early 1989 so any disciplinary action occurring thereafter would
be retaliatory.
It is the function of
the fact-finder, not the reviewing court, to determine the credibility of
witnesses. Wehr Steel Co. v.
DILHR, 102 Wis.2d 480, 487, 307 N.W.2d 302, 306 (Ct. App. 1981), modified
on other grounds, 106 Wis.2d 111, 315 N.W.2d 357 (1982). The Commission noted that Vetter's
testimony, while confused, established that the alleged retaliators could not
have learned of Seay's complaints before November 15, 1989. Therefore, Seay did not establish a prima
facie case of retaliation as to any incidents which occurred before
November 15, 1989. We cannot conclude
that the Commission's findings are clearly erroneous. See § 805.17(2), Stats.
The
Commission attributed the incidents which occurred after November 15, 1989, to
a poor relationship between Seay and his co-workers which led to inappropriate
behavior by both Seay and his colleagues.
Although Seay claims that he never had a poor relationship with his
colleagues, there is substantial evidence in the record which shows that Seay
elicited negative responses from his co-workers because of his unfriendly
attitude and pessimistic demeanor.
Additionally, the Commission noted that Seay's poor relationship with
his co-workers did not begin abruptly after he made his complaints, but
gradually worsened during his tenure at the Arlington Research Station. We conclude that the Commission's findings
are supported by substantial evidence.
III. Summary.
We
conclude that the secretary's denial of Seay's request that his position be
reclassified was a decision appealable to the Commission pursuant to
§ 230.44(1)(b), Stats. The issues appealable were whether the
secretary properly exercised his discretion based on Seay's duties, authority,
responsibilities and other factors "recognized in the job evaluation
process." Seay's claim of
retaliation is not a factor recognized in the job evaluation process.
We
further conclude that if Seay had a retaliation claim, his exclusive remedy was
contained in § 230.85, Stats.,
the Whistleblower Law. However, Seay's
employer rebutted the statutory presumption of retaliation, § 230.85(6),
by showing that its acts or threats to act were not retaliatory or a threat to
retaliate against Seay for requesting reclassification.
By
the Court.—Order affirmed.
Not
recommended for publication in the official reports.
[2] Seay appealed DER's denial of his
reclassification request to the Commission on September 27, 1989. On January 24, 1991, the Commission
concluded that Seay was not entitled to reclassification.
[3] The facts regarding Vetter's awareness of the
Whistleblower complaint will be stated in Part II of the decision.
[4] Section 227.57, Stats., Scope of Review, provides in part:
(6) If the agency's action depends on any fact
found by the agency in a contested case proceeding, the court shall not
substitute its judgment for that of the agency as to the weight of the evidence
on any disputed finding of fact. The
court shall, however, set aside agency action or remand the case to the agency
if it finds that the agency's action depends on any finding of fact that is not
supported by substantial evidence in the record.
[5] See Board of Regents v. Wisconsin
Personnel Comm'n, 103 Wis.2d 545, 309 N.W.2d 366 (Ct. App. 1981)
(appeal by probationary employee from decision to discharge him from job).
[6] See Basinas v. State, 104
Wis.2d 539, 312 N.W.2d 483 (1981) (employee appeal from reassignment to
position with lower maximum pay range).
[7] See Seep v. State Personnel Comm'n,
140 Wis.2d 32, 409 N.W.2d 142 (Ct. App. 1987) (employee appeal from decision
refusing reinstatement in violation of agreement to do so).
[8] See Cozzens-Ellis v. Wisconsin
Personnel Comm'n, 155 Wis.2d 271, 455 N.W.2d 246 (Ct. App. 1990)
(employee appeal from denial of promotion).
[9] Section 230.85(6), Stats., provides:
(a) If a
disciplinary action occurs or is threatened within the time prescribed under
par. (b), that disciplinary action or threat is presumed to be a retaliatory
action or threat thereof. The
respondent may rebut that presumption by a preponderance of the evidence that
the disciplinary action or threat was not a retaliatory action or threat
thereof.
(b) Paragraph
(a) applies to a disciplinary action under § 230.80(2)(a) which occurs or is
threatened within 2 years, or to a disciplinary action under § 230.80(2)(b),
(c) or (d) which occurs or is threatened within one year, after an employe
discloses information under § 230.81 which merits further investigation or
after the employe's appointing authority, agent of an appointing authority or
supervisor learns of that disclosure, whichever is later.