Just Cause

From: http://werc.wi.gov/personnel_appeals/werc_2003_on/pa36758C1.pdf

Edward Wall – Case no 17 cv 0060 – Oct 31 2017 – Dane Cty Circuit Ct.

There is probably much more applicable stuff here. – read more

Having determined that the evidence is sufficient to support the WERC's finding that Wall sent the letter to Zipperer with the intent to evade or encourage evasion of the public records law, this court must decide whether the WERC appropriately found that such conduct constituted 'just cause' for dismissal under Wis. Stat. § 230.34. A state employee with permanent civil service status may be discharged only for just cause. Wis. Stat. § 230.34(1)(a). The test for determining whether "just cause" for discipline exists requires a two-step analysis: first, whether the employer had just cause to impose at least some discipline due to misconduct that "sufficiently undermined the efficient performance of the duties of employment," and second, whether the discipline imposed was excessive based on the specific requirements of the governmental position. Safransky v. State Pers. Bd., 62 Wis. 2d 464, 474-75, 215 N.W.2d 379 (1974).

There must be a rational connection or nexus between the misconduct and the deleterious effects on job performance. Id. The requirement of a rational connection avoids arbitrary and capricious action by the appointing authority and protects the rights of the employee to due process of law. Id. In reviewing whether the particular discipline imposed was excessive, the agency must consider the weight or enormity of the employee's misconduct, including the degree to which it did or could reasonably be said to tend to impair the employer's operation. Mitchell v. DNR, State Pers. Comm. Dec. 83-0228-PC -1984 at 6, citing Safransky, 62 Wis. 2d 464

Progressive discipline – move this to an area more suited.

230.04(13m) (13m) The administrator shall establish standards for progressive discipline plans to be prepared by all agencies and applied to all employees in the classified service. The standards shall address progressive discipline for personal conduct and work performance that is inadequate, unsuitable, or inferior. The standards established under this subsection shall allow an appointing authority to accelerate progressive discipline if the inadequacy, unsuitability, or inferiority of the personal conduct or work performance for which an employee is being disciplined is severe.

230.34(1)(a)(a) An employee with permanent status in class or an employee who has served with the state as an assistant district attorney or an assistant state public defender for a continuous period of 12 months or more may be removed, suspended without pay, discharged, reduced in base pay, or demoted only for just cause. It is just cause to remove, suspend without pay, discharge, reduce the base pay of, or demote an employee for work performance or personal conduct that is inadequate, unsuitable, or inferior, as determined by the appointing authority, but only after imposing progressive discipline that complies with the administrator's standards under s. 230.04 (13m). It is just cause to remove, suspend without pay, discharge, reduce the base pay of, or demote an employee without imposing progressive discipline for any of the following conduct:…

Larsen v. DOC, State Pers. Comm. Dees. 90-0374-PC & 91-0063-PC-ER -1992

http://werc.wi.gov/personnel_appeals/personnel_commission_1978-99/87-0201-PC-A.pdf

“This matter was precipitated by appellant’s appeal, pursuant to $230.44(1)(c), Wis. Stats., of a suspension of five days without pay. On November 28, 1988, the Commission entered a decision and order which had the effect of adopting part of the proposed decision and order that had been Issued by a hearing examiner, but rejected the proposed conclusion that the predisciplinary hearing had been constitutionally inadequate. It also rejected the proposed decision’s recommendation with respect to the merits that the fiveday suspension be reduced to a written reprimand, which was based in large part on respondent’s failure to have met its burden of proof as to certam of the allegations of misconduct against appellant, and instead reduced the suspension from five days to two days. Subsequently, in an order entered on January 26, 1989, the Commission denied appellant’s motion for costs under $227.485, Wis. Stats., pointing out that as to the factual matters as to which respondent had failed to meet its burden of proof, there had been a good deal of conflicting evidence, and respondent had been substantially justified in its position.

After this, the Brown County Circuit Court m a June 29, 1990, decision reversed the Commission’s conclusion that the predisciplinary hearing had been adequate. The Court held that because of the due process violation, the entire disciplinary action had to be rejected, and that “[tlhe question of costs

Showsh v. DATCP Case No. 87-0201-PC Page 2

and attorney fees must be reexamined in light of my finding that Dr. Showsh was denied due process and that the Commisston’s order is now rescinded.” DATCP appealed the Circuit Court decision, and the Court of Appeals, District III, affirmed the Circuit Court in a decision dated April 2, 1991. The Commission has already determined that respondent was “substantially justified” in taking its action of suspension, and this conclusion was not overturned on judicial review. Rather, the Circuit Court noted that the question of costs and fees had to be re-examined in light of the decision regarding procedural due process. The Court of Appeals held that:

The trial court properly remanded the issue of whether Showsh was entitled to recover costs and fees under $227.485, Stats., in light of its decision. The issue presented by that statute is whether the ‘losing party was substantially justified in taking its position,’ or whether ‘special circumstances exist that would make the award unjust.’ The trial court’s decision that the department violated Showsh’s procedural due process rights substantially affects the commission’s determinattons on these issues. Therefore, it was appropriate for the trial court to remand this question for re-examination in light of its decision. p. 4.

…

The DATCP did not have a reasonable basis in law for imposing a five day suspension. At the time Dr. Showsh was suspended in November 1987 Loudermill had been clearly established law for over two years. Loudermill held that a public employee with a property interest in his or her employment must receive notice and an opportunity to be heard prior to being deprived of that property interest. The only recognized exception to this rule is where exigent circumstances necessitate quick action or where it is impractical to provide any meaningful predisciplinary hearing....

There is no doubt that at the time of his suspension Dr. Showsh had a property interest in his employment by virtue of the just cause provision in the civil service statutes. There is also no dispute that Dr. Showsh was suspended for a period of five days without prior notice or a meaningful opportunity to be heard as required by the due process clause. Thus, the only circumstances which would have relieved the DATCP of its obligation to notify Dr. Showsh of the allegations against him and provide a meaningful hearing would have been the necessity Showsh v. DATCP Case No. 87-OZOl-PC Page 3 for quick action. However, as the circuit court found, such circumstances clearly did not exist. pp. 5-6.

CLEVELAND BOARD OF EDUCATION v. LOUDERMILL, (1985)

http://caselaw.findlaw.com/us-supreme-court/470/532.html

The essential requirements of due process, and all that respondents seek or the Court of Appeals required, are notice and an opportunity to respond. The opportunity to present reasons, either in person or in writing, why proposed action should not be taken is a fundamental due process requirement. See Friendly, "Some Kind of Hearing," 123 U. Pa. L. Rev. 1267, 1281 (1975). The tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story. See Arnett v. Kennedy, 416 U.S., at 170 -171 (opinion of POWELL, J.); id., at 195-196 (opinion of WHITE, J.); see also Goss v. Lopez, 419 U.S., at 581 . To require more than this prior to termination would intrude to an unwarranted extent on the government's interest in quickly removing an unsatisfactory employee.

Because of this we may have trouble winning the "time argument."

The Due Process Clause [470 U.S. 532, 534] requires provision of a hearing "at a meaningful time,"

a due process hearing at a meaningful time and in a meaningful manner. Id., at 566.

the only meaningful opportunity to invoke the discretion of the decisionmaker is likely to be before the termination takes effect. See Goss v. Lopez, 419 U.S., at 583 -584; Gagnon v. Scarpelli, 411 U.S. 778, 784 -786 (1973). 8 [470 U.S. 532, 544]

(Note: Also, one could argue before a suspension takes effect)

The Due Process Clause requires provision of a hearing "at a meaningful time." E. g., Armstrong v. Manzo, 380 U.S. 545, 552 (1965). At some point, a delay in the post-termination hearing would become a constitutional violation.

Yet in requiring only that the employee have an opportunity to respond before his wages are cut off, without affording him any meaningful chance to present a defense, the Court is willing to accept an impermissibly high risk of error with respect to a deprivation that is substantial.

Today the Court puts to rest any remaining debate over whether public employers must provide meaningful notice and hearing procedures before discharging an employee for [470 U.S. 532, 552] cause.

To the contrary, the Court notes that a full post-termination hearing and decision must be provided at "a meaningful time" and that "[a]t some point, a delay in the post-termination hearing would become a constitutional violation." Ante, at 547. For example, in Barry v. Barchi, 443 U.S. 55 (1979), we disapproved as "constitutionally infirm" the shorter administrative delays that resulted under a statute that required "prompt" postsuspension hearings for suspended racehorse trainers with decision to follow within 30 days of the hearing. Id., at 61, 66. As JUSTICE MARSHALL demonstrates, when an employee's wages are terminated pending [470 U.S. 532, 554] administrative decision, "hardship inevitably increases as the days go by." Ante, at 551; see also Arnett v. Kennedy, supra, at 194 (WHITE, J., concurring in part and dissenting in part) ("The impact on the employee of being without a job pending a full hearing is likely to be considerable because `[m]ore than 75 percent of actions contested within employing agencies require longer to decide than the 60 days required by . . . regulations'") (citation omitted). In such cases the Constitution itself draws a line, as the Court declares, "at some point" beyond which the State may not continue a deprivation absent decision. 1 The holding in Part V is merely that, in this particular case, Loudermill failed to allege facts sufficient to state a cause of action, and not that nine months can never exceed constitutional limits.

<<Note: This explains why the administration was big on blaming Sabina for requests for “continuance.” Show that Sabina was not asking for continuance but for them to follow policy and to allow medical accommodations. They will argue that they didn’t have the hearing within 20 days because of the end of the semester. So why is that reason to violate policy but Sabina’s medical condition was not reason to extend? Also note that the reason for Sabina’s anxiety and ulcer flare ups was that the policy was not being followed. So, the reason the hearings were delayed was due to violation of policy. >>

"[t]o be meaningful, an opportunity for a full hearing and determination must be afforded at least at a time when the potentially irreparable and substantial harm caused by a suspension can still be avoided - i. e., either before or immediately after suspension." Barry v. Barchi, supra, at 74 (BRENNAN, J., concurring in part).

Findings of Fact – case against Dr. Sabina Burton

The University of Wisconsin System UPS OPERATIONAL POLICY - GEN 14 identifies seven elements of determining whether just cause exists. This document demonstrates, in Findings of Fact format, that the elements of just cause to not exist in the case against Dr. Burton.

Whether the employee had notice of workplace expectations and potential consequences if those expectations were not met;

Throop Letter of direction –

1- In a letter of direction dated Oct 28, 2014 Dean Throop admonished Dr. Burton and issued her several directives.

§ Did not address current charges

§ Burton did not violate the LOD

§ Burton was charged for following Throop’s LOD #1, in regards to a complaint about Dr. Nemmetz.

o Chancellor Letter of direction –

§ did not address current charges

§ Burton did not violate the LOD

o Mandatory communication training –

§ Mandated multiple times but was never conducted

o Nobody ever asked, or demanded, that Dr. Burton remove any audios from the website universitycorruption.com. She was not given opportunity to correct the perceived violation but learned about it two weeks after the complaint was given to the Chancellor.

Whether the workplace expectations were reasonably related to business efficiency and performance the employer might reasonably expect from the employee;

Throop LOD –fails this test (House sitting)

o Throop LOD was never addressed in requested grievance hearing.

o Burton stated that she “did not accept” the LOD because - Throop violated due process in writing them.

o Throop knew Burton would convince a reasonable grievance panel so she denied Burton the requested, and mandatory, hearing in violation of policy.

o There is no policy governing use of Letters of Direction. This seems to be an invention of Dr. Throop for quelling faculty members who support students’ rights.

Whether an investigation was undertaken by the employer before discipline or discharge to determine whether the employee violated expectations;

§ Dr. Throop filed a UWS ch 6 charge on Jan 5, 2015 (two weeks after Throop falsely accused Burton of cancelling class).

· An investigation was immediately conducted and the results of the investigation were withheld from Dr. Burton for a year.

· Charges were dropped without explanation

§ Deb Rice filed a complaint against Dr. Burton on 8/8/16 just after Dr. Burton asked for a grievance against Rice.

· An investigation into Dr. Burton was ordered immediately

· Dr. Burton’s grievance against Rice was denied on invalid grounds and in violation of policy.

Whether the investigation was conducted fairly and objectively;

The “Roter report” investigation was circumscribed by including only interviewees of whom Dr. Burton had filed previous complaints.

o The investigation report delivered by Chancellor Shields, whom Dr. Burton had accused of corruption, were biased and full of inaccuracies, misleading statements, false statements and opinions rather than facts only.

o The investigation report seems to have been “edited by a third person.” So, it appears that the “Roter report” was actually, written by someone other than the person who performed the investigation.

§ 943.39 Fraudulent writings. Whoever, with intent to injure or defraud, does any of the following is guilty of a Class H felony:

· Dr. Roter refused to confirm the authenticity of the “Roter report.” It is not signed.

· (1) Being a director, officer, manager, agent or employee of any corporation or limited liability company falsifies any record, account or other document belonging to that corporation or limited liability company by alteration, false entry or omission, or makes, circulates or publishes any written statement regarding the corporation or limited liability company which he or she knows is false;

§ 943.38 Forgery.

· (1) Whoever with intent to defraud falsely makes or alters a writing or object of any of the following kinds so that it purports to have been made by another, or at another time, or with different provisions, or by authority of one who did not give such authority, is guilty of a Class H felony:

Whether the employer obtained substantial evidence of the employee's guilt;

Even with the biased investigation report Chancellor Shields felt compelled to add more to his statement of charges indicating, with no evidence, that Dr. Burton had talked about her grievances in her classes.

§ This indicates that he knew there was not enough in the investigation report to amount to due cause. He needed more so he added something that was not in the complaint not in the investigation report and not true.

o None of the evidence indicates that Dr. Burton did anything wrong.

o Vague twists of facts is the only thing that implicates Dr. Burton in any wrongdoing. Dr. Burton effectively rebuts all charges.

Whether workplace expectations were applied fairly and without discrimination;

Only two faculty members to have received a letter of direction. Throop was forced to withdraw her LOD to the other faculty member.

o No other member of LAE was held to the discriminatory requirements of the LODs.

Investigations were undertaken for all charges against Dr. Burton immediately but no investigations were ever undertaken for the charges Dr. Burton levied against others.

I. Whether the degree of discipline imposed reasonably related to the seriousness of the employee's offense and the employee's past record.

No other employee was reprimanded for “house sitting” charges.

o No other employee has been processed for dismissal for similar non-violations.

o The burden of proof is on the administration and they have failed to provide evidence that Dr. Burton violated any policies, laws or rules including the discriminatory LODs.

o Chancellor Shields wrote Dr. Burton a letter of appreciation in April 2012 (Shields-congratsSabina-4-30-12). This letter was removed from Dr. Burton’s personnel file and replaced by bogus charges and letters of direction that falsely make her service seem terrible. Dr. Burton asked for her rebuttals to be included in her personnel file but they were not.

o Even the biased “Roter report” indicates that Dr. Burton is an excellent teacher.

o On 12/2/2013 Dr. Throop said “What Dr. Burton has listed as her qualifications are really very important qualifications about her amazing abilities as a teacher. I think there is no question that her presence in the classroom is absolutely astounding. From what I can tell she is an inspired teacher.” (A13 - Grievance - Throop - 12-2-13), (Grievance-Throop-Transcript)

o Dean Throop - faculty forum on 4/3/14 – Throop applauds Burton’s expertise and passion.

o Dr. Burton’s personnel record has been tampered with (PersFile-MajorProblems-12-31-16).

o Dr. Burton’s DRB evaluations were conducted by people with severe conflict of interest. Dr. Caywood sat on her DRB while Burton was suing him in federal court. During that evaluation period Dr. Burton’s previous DRB scores were altered.

Conclusion:

Dr. Burton did not do anything that would warrant dismissal. The charges, even if they were true, are not substantial and certainly do not rise to the level of just cause for dismissal.

These are just a few of the arguments that demonstrate that “just cause” does not exist to dismiss Dr. Burton. The administration has failed to prove their case against Dr. Burton. The charges should be dismissed.