[Previous material] [Next material]
205.1 Constitutional Rights
To the extent §230.37(2), Stats., is read to require a balancing of the appointing authority's interest, served by an order that an employe submit to a medical examination, and the employe's constitutionally protected privacy rights, there is a legitimate public interest in assuring that an employe, who is being sent out of the office and into the public realm in order to evaluate various agencies which deal with the employing agency, is mentally capable and fit for employment, for both reasons of security and of efficiency. Haney v. Wis. Pers. Comm., Dane County Circuit Court, 95-CV-0867, 2/15/96
The first amendment rights of the appellant were not violated when he was suspended for making uncomplimentary and caustic remarks about the urban renewal efforts of certain communities and local officials during a speech before a large group of urban development professionals, because the employer's interest in maintaining good working relationships with local officials would outweigh appellant's interests in being able to express his opinions under the balancing test mandated by Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, (1968). Stitt v. DOD, 88-0090-PC, 6/19/89
Specific instructions to appellant, an office director, to fully explain the department's position whenever discussions arose, did not infringe on the employe's first amendment rights. Monson v. DHSS, 87-0076-PC, 6/20/88; affirmed by Dane County Circuit Court, Monson v. Wis. Pers. Comm., 88-CV-4059, 4/20/89
Disciplinary action was upheld where employer based its decision on appellant's complete employment history, and the protected speech in question constituted one factor in a performance evaluation decision which was in turn one factor in the final decision and there was no strong link between the protected activity and the discipline imposed. Ruff v. State Investment Board, 80-105, 160, 222-PC, 8/6/81; affirmed by Dane County Circuit Court, Ruff v. State Pers. Comm. 81-CV-4455, 7/23/82; affirmed by Court of Appeals District IV, 82-1572, 11/8/83
The First Amendment rights of public employes to comment publicly on matters of public concern which are related to their employes' functions are protected from employer interference, subject to a balancing of state and private interests. It is possible for the employer to base a disciplinary decision in part on an employe's exercise of protected speech, where the employer's decision would have been reached in the absence of protected speech, as long as the employer relied on other permissible reasons at the time of the decision. Ruff v. State Investment Board, 80-105, 160, 222-PC, 8/6/81; affirmed by Dane County Circuit Court, Ruff v. State Pers. Comm. 81-CV-4455, 7/23/82; affirmed by Court of Appeals District IV, 82-1572, 11/8/83
A state employe is protected by the First Amendment, and to determine whether speech is constitutionally protected against infringement, it is necessary to balance the interest in free speech against the interest of the state as employer in promoting the efficiency of the public services it performs through its employes. Where a probationary employe's response to a performance evaluation was, in part, critical of his supervisors, it was held that the subsequent termination of his probationary employment did not violate his First Amendment rights in light of the nature of the probationary period in general under the civil service system, the long-standing and well-documented concern of the respondent with appellant's defensive attitude and behavior, and the nature of appellant's work, which was professional in nature, involved much communication, and placed a premium on a cooperative and non-defensive attitude. Chiat v. WCCJ, 78-152-PC 6/5/79
205.3 Absence of standards of performance
Objective standards or minimum performance standards, such as a minimum hourly page rate or allowable error rate, are not required to measure the performance of a Technical Typist. Zehner v. Pers. Bd., Dane County Circuit Court, 156-399, 2/20/78
The employing agency cannot be required to anticipate every possible wrong turn that an employe can make and to give that employe a set of directives that will cover every such eventuality. While an employe at a management level requiring the frequent exercise of discretion should not be disciplined over a mere difference of opinion regarding such an exercise of discretion, management is not prevented from imposing discipline where the judgment exercised by the employe is egregious, simply because the employe has not been forewarned that disciplinary action would result. Paul v. DHSS, 87-0147-PC, 4/19/90
The Commission rejected the appellant's contention that findings of misconduct cannot be based on errors for which there was no established criteria for measuring performance unless the conduct was egregious, noting that the appropriate just cause standard is set forth in Safransky and that this was not a case in which there were conflicting analyses of work performance by different supervisors. Bents v. Office of the Commissioner of Banking, 86-0193-PC, 7/13/88; modified and remanded by Dane County Circuit Court, Bents v. Wis. Pers. Comm. & OCB, 88 CV 4234, 4/3/89; on remand, the Commission affirmed the discharge decision, 10/4/89
The respondent was not required to articulate quantifiable standards against which appellant's performance could be compared where two of the three violations alleged insubordination or reluctance to carry out instructions and where the other violation alleged a failure to promptly process a certification request despite express instructions. Roberts v. DHSS, 80-169-PC, 3/17/83
205.5 Failure of management to train and supervise
Where the appellant had several years experience as a Technical Typist I prior to a demotion to the position in question after having failed to pass probation as a Technical Typist 2, there was no requirement that the employer provide further training in the skills expected of an experienced employe in that classification. Since she received specific instructions on the formats needed for her work, was provided with a separate copy of a medical dictionary, and her supervisor, an Administrative Secretary 1, tried to be helpful in pointing out deficiencies in her work and in trying to aid her in correcting them it could not be said that the deficiencies in the appellant's performance were due to any lack of proper training and supervision. The absence of any mention of supervisory duties in the Administrative Secretary I position standards is immaterial since the duties had in fact been assigned to the appellant's supervisor. Zehner v. Pers. Board, Dane County Circuit Court, 156-399, 2/20/78
205.7 Multiple punishment
The appellant's argument that he was disciplined twice for the same incident, receiving both an "oral reprimand" from his supervisor and a 10 day suspension, was rejected where the supervisor was unaware of certain details of the incident, including appellant's falsification of records, when he first discussed the incident with appellant. Showsh v. DATCP, 89-0043-PC, 4/17/90
205.8(1) Pre-disciplinary procedural requirements, generally
Appellant, who received a 5 day suspension which was reduced by the Commission to 2 days, was denied due process where he did not receive notice of the charges against him before the suspension was imposed. The exception to the due process requirement based on a necessity for quick action was not present where the suspension did not occur until more than three months after the alleged violations. Showsh v. Wis. Pers. Comm., Brown County Circuit Court, 89-CV-445, 6/29/90; affirmed by Court of Appeals, 90-1985, 4/2/91
Where the respondent failed to explicitly inform the appellant that he was the target of its investigation and was the accused, not just a witness, respondent violated his due process rights and prejudiced his defense. No postsuspension procedure afforded the appellant a similar opportunity to persuade the decision makers to forgo their right to impose a particular penalty. Showsh v. Wis. Pers. Comm. & DATCP, Court of Appeals, 90-1985, 4/2/91
The Commission rejected appellant's contention that he was denied due process protections when the same individual participated both in the investigation and in the final decision-making process and where appellant argued that the individual held personal animosity toward appellant. England v. DOC, 97-0151-PC, 9/23/98
Where appellant admitted to his supervisor that he had told certain jokes that were racially demeaning, respondent's subsequent action of suspending the appellant for 10 days was rejected because respondent had failed to provide appellant with a due process hearing. In addition, the admission was made before appellant had been told of the nature of the complaints against him, respondent had not informed appellant that respondent might view the charges as serious, and the supervisor never disclosed the potential that suspension or some other serious form of discipline could result. Appellant's admission did not absolve respondent from according him further due process protections. The Commission distinguished Gilbert v. Homar, 117 S.Ct. 1807 (1977). Brenon v. UW, 96-0016-PC, 2/12/98
Appellant received the required procedural due process with respect to his suspensions and terminations even though one person made the underlying work order, conducted the investigation of its alleged violation, conducted the pre-disciplinary proceeding, recommended discipline to her superiors and imposed discipline. There was no evidence that the relationship between appellant and this individual, who was appellant's third-level supervisor, was anything other than a regular working relationship derived exclusively from working at their jobs for a number of years and there was no evidence that the supervisor had displayed, for example, vituperative behavior towards appellant. Haney v. DOT, 93-0232-PC, 94-0012-PC, 3/9/95 ; affirmed by Dane County Circuit Court, Haney v. Wis. Pers. Comm., 95-CV-0867, 2/15/96
A pre-suspension hearing during which the employe was asked if she had struck a supervisor and to give "her side of the story," but was not provided any explanation of the employer's evidence was defective under the test set forth in Cleveland Bd. of Education v. Loudermill, 470 U.S. 532, 546, 84 L. Ed. 2d 494, 506, 105 S. Ct. 1487 (1985). The employer was not justified in omitting a hearing completely with respect to a second alleged striking incident that occurred the same day as the first, on the ground that when she was questioned about the first incident, appellant professed a memory lapse. Also, the record was not consistent with respondent's post-hearing assertion of exigent circumstances due to a concern about the threat of further violence. Rentmeester v. Wis. Lottery, 91-0243-PC, etc., 5/27/94
Respondent was not required to turn over its entire investigative file to appellant during a pre-disciplinary hearing preceding a ten-day suspension, where respondent discussed the evidence on which it was relying. The question of the adequacy of the investigation conducted by management prior to the predisciplinary hearing is not an issue that is raised by an appeal of this nature, which involves a de novo hearing. Reimer v. DOC, 92-0781-PC, 2/3/94
Notice given on Friday of a predisciplinary hearing the following Monday did not violate appellant's due process rights. The essential requirements of due process, notice and an opportunity to respond, were met. Higgins v. Wis. Racing Bd., 92-0020-PC, 1/11/94
Appellant was not given adequate notice that he was the target of possible discipline, nor adequate notice of the charges against him, nor an adequate explanation of the employer's evidence where, inter alia, the focus of the predisciplinary meeting was on corroborating the employer's allegations, only parts of the allegations were provided to the appellant and it wasn't until the end of the meeting that the appellant was told he was facing possible discipline ranging from reprimand to discharge. Arneson v. UW, 90-0184-PC, 2/6/92
Where the person who presided at the appellant's predisciplinary hearing and played a key role in the investigation and disciplinary recommendation was not impartial, the appellant was denied due process even though this person only recommended action to someone else who had the final authority in the matter. Fofana v. DHSS, 90-0120-PC, 8/15/91
Where there was long-standing acrimony between the decision maker at the predisciplinary hearing and the appellant and the respondent did not follow its normal procedure of designating the subject employe's immediate supervisor as the decision maker and the designated person had probable incompatible interests due to prior relationships with the various parties involved in the incident, the predisciplinary hearing was inadequate and the resulting suspension was rejected. Fofana v. DHSS, 90-0120-PC, 6/28/91; rehearing denied, 8/15/91
Appellant's due process rights were not violated even though he was not provided a written notice of the predisciplinary hearing which referred to an incident on February 19, where, at the time the predisciplinary hearing began regarding an incident on February 26th, respondent's management was unaware of the incident on the 19th and there was no allegation that the appellant was not provided a full opportunity to explain his side of the February 19th events during the predisciplinary hearing. The letter of suspension issued to the appellant was based on the incidents on both the 19th and the 26th. Powers v. UW, 88-0029-PC, 5/10/90; affirmed by Dane County Circuit Court, Powers v. Wis. Pers. Comm., 90 CV 3023, 2/12/91
Due process requirements of notice and an opportunity to respond were satisfied with respect to a decision to treat the appellant as having abandoned her job. The appellant's property interest was less than in a termination situation because she was not in pay status at the time, was not capable of performing the duties of her position or any equivalent position and would not be stigmatized by respondent's actions by having a firing on her record since the transaction would be characterized in her record as a resignation. Smith v. DHSS, 88-0063-PC, 2/9/89
The requirements of due process are minimal in a case involving a suspension with the right to a trial-type hearing on an appeal and the key requirement is that the employer not act without first giving the employe an opportunity to present his version of the facts. Appellant was not denied due process even though he was not advised explicitly that he could be disciplined, where he was called into a meeting with his second-level supervisor who informed him of a number of concerns he had about appellant's actions and asked appellant for his version of the events. At the meeting, the appellant asked if he needed a lawyer and the supervisor replied that he did not. Letzing v. DOD, 88-0036-PC, 1/25/89
The due process clause does not require a direct meeting between the employe and the appointing authority as part of the pretermination proceeding. Paul v. DHSS, 87-0147-PC, 1/12/89
The Commission has the authority to rule on whether due process requires a predisciplinary hearing where the civil service code neither mandates nor prohibits such a hearing. Showsh v. DATCP, 87-0201-PC, 11/28/88; rehearing denied, 3/14/89; reversed on other grounds by Brown County Circuit Court, Showsh v. Wis. Pers. Comm., 89-CV-445, 6/29/90; affirmed by Court of Appeals, 90-1985, 4/2/91
A week's salary, lost as a consequence of a suspension, is a property interest that is protected by the due process clause. Showsh v. DATCP, 87-0201-PC, 11/28/88; rehearing denied, 3/14/89; reversed on other grounds by Brown County Circuit Court, Showsh v. Wis. Pers. Comm., 89-CV-445, 6/29/90; affirmed by Court of Appeals, 90-1985, 4/2/91
Predisciplinary proceedings were held to be adequate where appellant received verbal notice of a predisciplinary hearing and appeared with counsel. Advance written notice of this hearing and of the work rules deemed to have been violated are not required. Where there was sufficient notice that management considered the matter to be very serious, respondent did not have to advise appellant of the range of disciplinary action that could result from the charges against her. Kode v. DHSS, 87-0160-PC, 11/23/88
Simply because the state has provided for certain pre-disciplinary procedures by its own regulations does not mean per se that those procedures are required as a matter of constitutional due process. However, the Commission would give some weight to the fact that the particular employer has made a formal determination that certain procedures are necessary elements under the due process clause before discipline can be imposed on its employes, not in the sense that these elements are legislatively-engrafted constitutional minima, but in the sense that they are part of the overall circumstances and reflect, to a certain extent, the employer's assessment of its own interests and what procedures it can and should afford its employes. McCready & Paul v. DHSS, 85-0216, 0127-PC, 5/28/87
Appellants, as employes who were protected by a 'just cause' type restriction on termination under the civil service law, were entitled under the due process clause to a pre-termination hearing, citing Cleveland Bd. of Educ. v. Laudermill, 470 U.S. 532 (1985) McCready & Paul v. DHSS, 85-0216, 0217-PC, 5/28/87
The Commission concluded that the appellant was denied his right to procedural due process of law in connection with the pre-termination process where the appellant did not receive adequate notice of the charges against him or an adequate explanation of the employer's evidence as it related to those charges which contributed to him not having an adequate opportunity to present his side of the story as to the charges and where management misled him to believe that no serious discipline was being considered. McCready & Paul v. DHSS, 85-0216, 0217-PC, 5/28/87
The Commission concluded that the appellant was denied his right to procedural due process of law in connection with the pretermination process where the appellant was not told that he might be discharged, respondent failed to comply with the provisions in the Supervisor's Manual requiring management to present out the pre-disciplinary hearing a tentative conclusion that disciplinary action is warranted and the appellant was never apprised of the full range of management's concerns about the incident and therefore he lacked notice of the charges against him. McCready & Paul v. DHSS, 85-0216, 0217-PC, 5/28/87
Where the appellants were suspended without pay for relatively short periods, they were afforded at least a limited opportunity to respond to the charges before suspension, and they were afforded a de novo hearing before the Commission following their appeals, they were afforded as much procedural protection as might be required by the Fourteenth Amendment Due Process Clause under an expansive reading of Arnett v. Kennedy, 416 U.S. 134,94 S.Ct. 1633, 40 L.Ed. 2d 15 (1974) Bender et al. v. DHSS, 81-382, 383, 384-PC, 3/19/82
205.8(2) Notice of imminent danger of termination
Where an employe failed to complete assigned tasks in a timely manner and failed to completely perform a substantial portion of his duties for a two month period, there was an ample showing of just cause, and just cause does not require that an employe be put on notice that he or she is in immediate danger of discharge. Finnegan v. State Pers. Bd., Dane County Circuit Court, 164-096, 7/18/79
No such warning is required by the civil service code and in this case the appellant had some warning that the respondent was dissatisfied with his performance. Alff v. DOR, 78-227,243-PC, 10/1/81; affirmed by Dane County Circuit Court, Alff v. Pers. Comm. 81-CV-5489, 1/3/84; affirmed by Court of Appeals District IV, 84-264, 11/25/85; petition for review by Supreme Court denied, 2/18/86
205.9 Other
There is no requirement that the Commission measure the appellant's performance against the level of performance of other employes assigned similar responsibilities. Bents v. Wis. Pers. Comm. & Office of the Commissioner of Banking, Dane County Circuit Court, 88 CV 4234, 4/3/89
Respondent did not violate appellant's due process rights by failing to have appellant perform two goals listed in her position description. The decision to discharge the appellant was upheld. The Commission rejected appellant's contention that because she did not perform certain duties listed in her position description, respondent had violated its own requirements of the Performance Improvement Program. The obvious intent of the "accurate position description" requirement in respondent's manual code was that employes be fully apprised of the duties and responsibilities they were to be performing and on which they were to be evaluated during the PIP review period. Respondent met this requirement. Rufener v. DNR, 93-0074-PC-ER, etc., 8/4/95
The appellant was not justified in thinking that his behavior was appropriate and would not subject him to discipline just because someone else was not disciplined for similar conduct where appellant had been involved in prior incidents resulting in counseling. Powers v. UW, 88-0029-PC, 5/10/90
The Commission rejected the appellant's contention that his regular duties were unimpaired by misconduct which had occurred while he was performing a voluntary activity, where the appellant was in paid status at the time of the misconduct and the voluntary activity was approved by management. Paul v. DHSS, 87-0147-PC, 4/19/90
Even if a situation is not covered by a specific rule or regulation, an employe, particularly a management or supervisory employe, who exercises poor enough judgment can be subjected to discipline. Kode v. DHSS, 87-0160-PC, 11/23/88
210.2 Excessiveness, generally
Respondent's decision to demote appellant from his position as captain and shift commander for a correctional institution to a sergeant position was not excessive where appellant had received a 10 day suspension one year earlier and appellant's supervisors had lost their trust in appellant and could no longer rely on the accuracy of his information. Respondent substantiated 10 allegations of misconduct violating four separate work rules, including the failure to carry out instructions and giving false information during an investigation. A number of his subordinates perceived favoritism by him towards a female subordinate officer. His supervisor directed him not to treat the subordinate any differently than the other correctional officers. Nevertheless, appellant continued to spend more time with that particular officer than with the other officers on duty, switched her assignment so she could cook breakfast for him, made numerous telephone calls to her at her home when he was on duty and did not answer truthfully when he was asked, during the disciplinary investigation, how frequently he called her. Bergh v. DOC, 98-0018-PC, 1/27/99
Respondent's discharge decision was excessive where respondent failed to show that appellant's actions constituted fraternization, or that such actions even had significant security implications and where the decision to discharge appellant was primarily premised on the conclusion that appellant, a supervisor, had engaged in fraternization. The deficiencies in appellant's work performance and conduct which respondent was able to establish were primarily health care practice deficiencies that respondent did not view as seriously, in the disciplinary context, as fraternization. Appellant was the manager of a health services unit at a correctional institution and had no previous discipline in the position. The discharge was modified to a 10 day suspension without pay and a demotion to a non-supervisory position. Kleinsteiber v. DOC, 97-0060-PC, 9/23/98
There was just cause for the imposition of discipline against a campus police sergeant who simulated masturbation when telling a joke about a co-worker and later misrepresented the truth about the incident to his second-level supervisor. However, discharge was excessive where respondent failed to prove allegations of other misconduct referenced in the discharge letter and where a 10 day suspension issued two months before the discharge and relied on for reasons of progressive discipline was thrown out because of a lack of due process. Some of the other jokes told by appellant that were referenced in the discharge decision were not outside the parameter of long-standing accepted behavior in the workplace. Brenon v. UW, 96-0016-PC, 2/12/98
A five day suspension was excessive for appellant’s failure to report to management that he had pleaded no contest to an ordinance violation of issuing a worthless check when he wrote a $20 personal check which bounced due to insufficient funds, because 1)there was no evidence that the five day suspension was commensurate with other cases involving similar work rule violations; 2) there was nothing inherent in the violation from which it could be inferred that as substantial a penalty as a five day suspension was warranted; 3) the warden was of the opinion that, but for concerns that under the Fair Labor Standards Act any suspension had to be at least 5 days in duration, a two to three day suspension would have been appropriate; 4)appellant’s immediate supervisor was of the opinion that a two day suspension was appropriate and five days was excessive; and 5) appellant had no prior disciplinary record. The suspension was reduced to a written reprimand. Jelinek v. DOC, 96-0161-PC, 7/2/97
A 15 day suspension of appellant, the supervisor of a security unit at the University of Wisconsin Hospital and Clinics, was excessive where the appellant brought into the security unit a photo of a naked boy with a drawing of a large penis superimposed on it, showed the photo to other male officers present in the security unit and the photo was seen by a female member of the hospital’s nursing staff. Appellant’s actions violated respondent’s harassment policy and had a tendency to impair the performance of appellant’s duties as a supervisor and the efficiency and effectiveness of the work unit. Appellant’s conduct warranted a 3 day suspension. Asche v. DOC, 90-0159-PC, 5/21/97
A five day suspension of the director of a treatment program for adolescent patients at a mental health institution was affirmed where the employe knew from his supervisor that he should not proceed with a plan to have a patient discharged to live in his home without obtaining an exception to the staff/patient relationships policy but the employe went ahead with a 30 day placement of the patient in his home on an extended pass. The employe willfully disregarded his supervisor’s instruction which created liability exposure for the institution and set a poor example for the other staff in the program over which the employe had management responsibilities. The employe’s conduct had the potential to compromise his ability to insist that other program staff follow the work rules applicable to them. The length of the suspension was not unreasonable as a means of achieving the goal that similar conduct not recur. While stressful factors present in the workplace may have contributed to the exercise of poor judgment by the employe, they did not excuse creating a serious potential liability for the institution. Malesevich v. DHSS, 96-0087-PC, 3/26/97
Appellant violated respondent’s work rules and an executive directive by causing mental anguish to a subordinate, using loud and abusive language toward the subordinate, engaging in conduct which caused a hostile and intimidating working environment and making derogatory comments to the subordinate about females. There was just cause for the imposition of a one day suspension, even though the underlying conduct involved one rather than multiple incidents. Chyba v. DOC§ 94-0500-PC, 7/23/96
Respondent established just cause for disciplining the appellant where appellant's work performance consistently failed to satisfy reasonable performance expectations, appellant's performance did not improve in any significant manner during the period of time she was on a Performance Improvement Program despite continuing feedback and training. The failure to meet reasonable performance standards for a position impairs the performance of the duties of the position and impairs the efficiency of the group with which the employe works, citing Tews v. PSC, 89-0150-PC, 89-0141-PC-ER, 6/29/90. The decision to discharge appellant was not excessive. Rufener v. DNR, 93-0074-PC-ER, etc., 8/4/95
Just cause existed where appellant, a captain and shift commander at a correctional institution, engaged in a pattern of sexually predatory behavior toward female subordinates and he knew or should have known that his actions violated not only agency policy but also state and federal law, and exposed respondent to extensive potential liability. Appellant's reckless use of a firearm exacerbated the seriousness of his misconduct. Although the appellant's mental state during this period could be considered a mitigating factor, it was not entitled to great weight given appellant's manipulative behavior and the fact that he was not out of touch with reality; therefore, discharge was not excessive discipline in light of the strong public policy against sexual harassment that justifies strong measures by management against employes who have engaged in sexual harassment. Jacobs v. DOC, 94-0158-PC, 5/15/95
Factors which enter into the determination of whether the degree of discipline imposed was excessive include the weight or enormity of the employe's offense or dereliction, including the degree to which it did or could reasonably be said to tend to impair the employer's operation, the employe's prior record and discipline imposed by the employer in other cases. Jacobs v. DOC, 94-0158-PC, 5/15/95
Just cause existed where a co-worker told appellant that his attentions were unwelcome, after further incident, respondent told appellant that further contacts with the co-worker were prohibited and warned him that failure to comply could result in discipline, there were subsequent incidents of contact by appellant with the co-worker and the co-worker's performance suffered due to appellant's unwelcome attentions. A five-day suspension was not excessive discipline. It was not determinative whether appellant actually committed a violation of state or federal discrimination laws. The correct inquiry is whether the respondent's actions were reasonable under the circumstances. Erickson v. WGC, 92-0207-PC-ER, 92-0799-PC, 5/15/95
There was just cause for three day and seven day suspensions of the appellant as well as his discharge where, over the course of a month, he refused to submit to each of three psychological evaluations scheduled for him by respondent under §230.37(2), Stats., where respondent reasonably believed that appellant demonstrated performance problems that might be attributable to some disability. If the employer is unable to determine an employe's "fitness to continue in service" or "capacity to continue in employment," the only logical course of action is to discontinue such employment. Haney v. DOT, 93-0232-PC, 94-0012-PC, 3/9/95 ; affirmed by Dane County Circuit Court, Haney v. Wis. Pers. Comm., 95-CV-0867, 2/15/96
Just cause existed for imposing discipline for appellant's failure to provide requested medical verification for her continued absences, where the absences contributed to a work backlog and required the temporary reassignment of other staff. A one day suspension was not excessive where it was consistent with respondent's written guidelines as a second category B violation. Garner v. DOC, 94-0013-PC, 7/27/94
Just cause existed for imposing discipline for appellant's action of leaving her lock-box key, which must be presented daily to obtain a door key for a high-security area within the correctional institution, at a bus stop outside the institution's secured perimeter. However, a 3 day suspension was modified to 2 days where the relative degree of risk imposed was slight. Garner v. DOC, 94-0013-PC, 7/27/94
A ten-day suspension was reduced to three days where respondent failed to prove one of the primary counts of misconduct, and appellant's prior disciplinary record consisted of a minor reprimand, but appellant's negligence had significant implications with respect to institutional safety. Reimer v. DOC, 92-0781-PC, 2/3/94
A 1 day suspension of the appellant, a captain in a maximum security correctional institution who had arranged for and effectuated a shift trade without prior authorization and in knowing violation of policy, was excessive based upon the severity of the offense, prior disciplinary record and a comparison to the absence of any discipline assessed to another employee for an identical offense. The suspension was reduced to a written reprimand. Larsen v. DOC, 90-0374-PC, 91-0063-PC-ER, 5/14/92
While the respondent acted prudently when it determined that, at that time, the appellant could not safely be returned to his position of employment, the respondent failed to obtain further medical evaluation before making a decision on appellant's permanent employment status and by not considering positions outside the University of Wisconsin Hospitals and Clinics, respondent failed to discharge its obligation under §230.37(2) of exhausting less drastic measures short of discharge. Schilling v. UW-Madison, 90-0064-PC-ER, 90-0248-PC, 11/6/91
There was just cause for the demotion of the appellant from her position as a Property Assessment Supervisor where the appellant's action of making a reduction in a town's assessments for agricultural improvements was shown to have been largely politically motivated rather than having been based on generally accepted principles of equalization. Sanders v. DOR, 89-0076-PC, 11/16/90; affirmed by Chippewa County Circuit Court, Sanders v. Wis. Pers. Comm., 90 CV 433, 9/4/91
A five day suspension was upheld where appellant, a supervisor in a correctional institution, allowed two inmates to add a state-owned bedspread and a bathrobe to the list of the inmates' personal property in clear violation of institution policies and procedures and where the appellant made personal use of a state typewriter on state time. Appellant's conduct failed to set a good example for subordinate employes and created a potential security problem. Hebert v. DHSS, 89-0093-PC, 6/27/90
A five day suspension was upheld for a male employe who hugged and kissed a female co-worker during a counselling session. The appellant had an excellent work record except that he had been informally counseled for physical contact with another female co-worker and had been told informally on another occasion by the personnel director to be careful about his physical contact with female employes. The appellant also had attended a sexual harassment training program less than one month before the incident which precipitated the discipline. The Commission rejected the appellant's request that he be treated differently because of his age. The Commission gave little weight to the level of discipline imposed by the respondent to a supervisor who had engaged in a fight with a co-worker, where that incident had occurred nearly two years earlier, where the available evidence suggested that the supervisor should have been more severely disciplined for his conduct and where institution management was dissatisfied with the results of the disciplinary process but recognized there were time problems in reopening the investigation of that matter. Harron v. DHSS, 89-0152-PC, 6/27/90
In an appeal from a demotion based on alleged inadequate performance, the question of whether the level of discipline was excessive is effectively answered if the respondent is able to establish that the level of performance was in fact inadequate and continuing. Barker v. DOR, 89-0116-PC, 5/16/90
A thirty day suspension was reduced to a letter of reprimand where the respondent failed to establish the existence of the primary allegation against the appellant, the incident which was substantiated was far less serious and the appellant otherwise had a good work record with no previous disciplinary actions. Powers v. UW, 88-0029-PC, 5/10/90; affirmed by Dane County Circuit Court, Powers v. Wis. Pers. Comm., 90 CV 3023, 2/12/91
A ten day suspension was reduced to five days, where respondent failed to sustain its burden as to two of the three incidents on which the suspension had been premised, the incident for which the respondent did sustain its burden was the most serious of the three incidents and the person who issued the suspension letter stated she would have reduced the suspension to between 6 and 9 days if one of the three incidents had dropped out. Showsh v. DATCP, 89-0043-PC, 4/17/90
The demotion of the appellant from his position as office supervisor was upheld where the preponderance of the evidence supported the charges of insubordination, inattention and/or negligence in carrying out assigned duties, misuse of case service funds, behavior unbecoming a state employe and failure to provide accurate, complete and/or timely information to supervisors. Eft v. DHSS, 86-0146-PC, 11/23/88; rehearing denied, 1/12/89; affirmed by Dane County Circuit Court, Eft v. Wis. Pers. Comm., 89CV644, 5/10/90
Appellant's three day suspension was reduced to two days where the appellant's conduct did not appear to be that egregious and not all of the misconduct relied on by the appointing authority in imposing a three-day suspension was established. Two of the three cited work rules were found not to have been violated. Appellant had made uncomplimentary and caustic remarks about the urban renewal efforts of certain communities and local officials during a speech before a large group of urban development professionals. Appellant's comments violated the work rule which prohibited abusive language toward others. Stitt v. DOD, 88-0090-PC, 6/19/89
A one day suspension was not excessive discipline for an office director and long-term employe who violated work rules relating to insubordination and failing to provide accurate and complete information as to 2 incidents. Monson v. DHSS, 87-0076-PC, 6/20/88; affirmed by Dane County Circuit Court, Monson v. Wis. Pers. Comm., 88-CV-4059, 4/20/89
There was just cause for suspending the appellant for one day for "failure to carry out assignments or instructions" where appellant, a supervisor, failed to timely complete a new work schedule, and where the appellant had received numerous verbal warnings to improve her work performance and had received a written reprimand for excessive absenteeism. However, the Commission found a subsequent demotion of the appellant to be excessive discipline. Smith v. UW, 84-0101, 0108-PC, 5/9/85; clarified on 8/5/85
Respondent's decision to demote the appellant from her supervisory position was modified to a 30 day suspension where appellant had altered the work assignments of certain of her cleaning crew in order to accommodate the handicap of a crew member, despite appellant's supervisor's requirement that he approve all changes. The Commission upheld a prior one-day suspension of the appellant. Smith v. UW, 84-0101, 0108-PC, 5/9/85; clarified on 8/5/85
The Commission reduced appellant's discharge to a 30 day suspension where respondent failed to establish that appellant engaged in certain of the alleged misconduct, where a previous written reprimand was found not to have been warranted and where another employe received a 10 day suspension for related misconduct. Mitchell v. DNR, 83-0228-PC, 8/30/84
Respondent's decision to discharge the appellant, a 17 year employe, was upheld where the appellant's performance problems were long-standing and he had failed to make any significant improvements. Fauber v. DOR, 82-138-PC, 8/21/84; affirmed by Milwaukee County Circuit Court, Fauber v. State Pers. Comm., 649-551, 10/8/85
Discharge arising from an outburst amounting to insubordination was found to be excessive discipline where the appellant otherwise had a good work record, it was the first such incident in over three years of employment and it did not occur in front of any subordinate employes. The discharge was modified to a 20 day suspension. Barden v. UW-System, 82-237-PC, 6/9/83
There was just cause for the 3 day suspension of the appellant, a supervisor, for engaging in loud, disruptive exchanges with a subordinate, and the amount of the discipline imposed was not excessive. Pagliano v. DVA, 82-99-PC, 2/7/83
Suspensions of two employes of five and three days were upheld as not excessive, where they were away from a correctional institution without notice for several hours and, on their return, were behaving in what amounts to a drunken manner, but a one day suspension of a third employe was modified to a written reprimand where he had been in the company of his immediate supervisor throughout the episode, and, although he had alcohol on his breath, he had not been acting unusually. Bender et al. v. DHSS, 81-382, 383, 384-PC, 3/19/82
The Commission found that there was just cause for the discharge of the head of the state property insurance fund based on major operational problems in the fund for which the appellant was responsible due to inadequate supervision and lack of substantive knowledge. Furthermore, the discharge was not excessive in view of the magnitude of the problems. Hogoboom v. Commissioner of Insurance, 80-107-PC, 10/2/81; affirmed by Dane County Circuit Court, Hogoboom v. State Pers. Comm., 81-CV-5669, 4/23/84; affirmed by Court of Appeals District IV, 84-1726, 12/11/85
The discharge was held not to be excessive when the magnitude of the bureau's problems were weighed against the appellant's generally adequate prior evaluations. Alff v. DOR, 78-227,243-PC, 10/1/81; affirmed by Dane County Circuit Court, Alff v. Pers. Comm., 81-CV-5489, 1/3/84; affirmed by Court of Appeals District IV, 84-264, 11/25/85; petition for review by Supreme Court denied 2/18/86
Where the appellant-physician refused to carry out a reasonable assignment to make an on-site evaluation of a potential medical treatment problem and then decide whether he was qualified to judge the propriety of care given to a deceased patient and, if he felt unqualified, to compile the case facts for presentation to others so that an evaluation could be made, a five day suspension was for just cause. Any further discipline was excessive where appellant had a good prior professional record, honestly held a principled belief that the assignment was improper and where he continued to perform all other assigned duties. Lyons v. DHSS, 79-81-PC, 7/23/80; affirmed by Dane County Circuit Court, DHSS v. Wis. Pers. Comm. (Lyons), 80-CV-4948, 7/14/81
Where the evidence did not sustain most of the charges against the appellant, but it was found that the appellant had violated DNR purchasing regulations, that he had consumed and had permitted his employes to consume small amounts of camp coffee and cookies, that he had a record of 10 years of continuous promotions and good performance, that the supervision of the camp employes consisted of only about 15% of his work time, it was determined that the discharge would be modified to a 30 day suspension. Evrard v. DNR, 79-251-PC, 1/22/80
A one-day suspension was reduced to a written reprimand where the appellant, a state patrol sergeant, had failed to take prompt action with respect to his concerns that a subordinate trooper had been drinking. Holt v. DOT, 79-86-PC, 11/8/79
210.5(1) Generally
Respondent's discharge decision was affirmed where appellant, who was responsible for supervising a textile operation employing inmate and other workers to manufacture gloves and other clothing products at a correctional institution in a business partnership between a private corporation and state government, gave gloves to various individuals for their personal use. Theft was regarded as one of the three most serious derelictions in a correctional setting. Appellant had engaged in prior similar conduct, had been disciplined for that conduct and had been warned that similar conduct could result in discharge. Discharge was consistent with the discipline imposed by respondent in other situations involving similar work rule violations. England v. DOC, 97-0151-PC, 9/23/98
A five day suspension was excessive for appellant’s failure to report to management that he had pleaded no contest to an ordinance violation of issuing a worthless check when he wrote a $20 personal check which bounced due to insufficient funds, because 1)there was no evidence that the five day suspension was commensurate with other cases involving similar work rule violations; 2) there was nothing inherent in the violation from which it could be inferred that as substantial a penalty as a five day suspension was warranted; 3) the warden was of the opinion that, but for concerns that under the Fair Labor Standards Act any suspension had to be at least 5 days in duration, a two to three day suspension would have been appropriate; 4)appellant’s immediate supervisor was of the opinion that a two day suspension was appropriate and five days was excessive; and 5) appellant had no prior disciplinary record. The suspension was reduced to a written reprimand. Jelinek v. DOC, 96-0161-PC, 7/2/97
A five day suspension was upheld where appellant's acts of misconduct included deception, prevarication and insubordination, all of which had a deleterious effect on his work unit. Appellant had no prior discipline. Gifford v. DOT, 94-0034-PC, 7/24/95
A ten-day suspension was reduced to three days where respondent failed to prove one of the primary counts of misconduct, and appellant's prior disciplinary record consisted of a minor reprimand, but appellant's negligence had significant implications with respect to institutional safety. Reimer v. DOC, 92-0781-PC, 2/3/94
A 12 day suspension without pay was upheld for a supervisory employe's conduct of kissing another employe on the neck under circumstances which would have lead a reasonable person to believe that he engaged in unwelcome physical conduct of a sexual nature. The conduct violated a work rule and, in all likelihood, constituted a violation under the FEA. The offending employe previously had been disciplined for similar behavior which resulted in a 5 day suspension. Harron v. DHSS, 91-0204-PC, 8/26/92
After rejecting the respondent's entire disciplinary action of probationary termination, 30 day suspension, demotion and reduction in base pay due to a failure to provide an adequate predisciplinary hearing, the Commission, in dicta, noted that where the respondent was only able to sustain 1 of 5 charges and where the appellant had no prior discipline in his 20 year record of state service, a 5 day suspension would be more commensurate with the misconduct. Arneson v. UW, 90-0184-PC, 2/6/92
Discharge was not excessive where the complainant had consistently failed to meet reasonable performance standards for her Auditor Specialist 3 position, where the respondent had invested considerable time and effort in counseling and training the appellant and where none of the alternatives to discharge were viable. Tews v. PSC, 89-0150-PC, 89-0141-PC-ER, 6/29/90
Discharge was not excessive where the appellant, a shift captain at a correctional institution, had pointed and discharged a firearm at another correctional officer and had known the firearm was loaded with a dummy round. The appellant's work record was clean except for a written reprimand and a written warning. Paul v. DHSS, 87-0147-PC, 4/19/90
A 10 day suspension of the appellant, a 16 year employe of the respondent, was not excessive where the appellant's leadworker position as a Property Assessment Specialist 3 required integrity and the upholding of the public trust and where the appellant had forged purloined motel receipts in order to defraud the state for personal gain by filing a fraudulent expense voucher. Deneen v. DOR, 88-0093-PC, 3/24/89
The demotion of appellant from her position as a lieutenant in a correctional institution was sustained despite what was basically a good prior work record with the exception of having been counseled with regard to disobedience of a direct order. The demotion was based on disobeying a direct order and a breach of security. Management had a basis for concluding that appellant could not be relied on to perform at the lieutenant's level and that lesser progressive discipline was not appropriate. However, because respondent failed to sustain one of the charges and because its concern about appellant's capacity or willingness to function reliably as a lieutenant was addressed by her demotion, a fifteen day suspension of the appellant was found to be excessive. Kode v. DHSS, 87-0160-PC, 11/23/88
Appellant's discharge from his position as chief financial officer of respondent was upheld where his poor work performance, insubordination and other specified shortcomings tended to impair the performance of the agency. Appellant had a good work record with the respondent until the events which were part of the appeal and had no prior discipline. However, he had received numerous verbal warnings to improve his work performance and nothing indicated that the appellant had sought to improve his performance. Bents v. Office of the Commissioner of Banking, 86-0193-PC, 7/13/88; modified and remanded by Dane County Circuit Court, Bents v. Wis. Pers. Comm. & OCB, 88 CV 4234, 4/3/89; on remand, the Commission affirmed the discharge decision, 10/4/89
Discharge arising form an outburst amounting to insubordination was found to be excessive discipline where the appellant otherwise had a good work record, it was the first such incident in over three years of employment and it did not occur in front of any subordinate employes. The discharge was modified to a 20 day suspension. Barden v. UW-System, 82-237-PC, 6/9/83
A five day suspension was reduced to one day in a First Amendment case where appellant had a good record with no prior discipline during 11 years of employment where the appellant's actions had the effect of accusing a judge of unethical conduct and where appellant had represented to a court that he appeared on behalf of his employing agency when in fact he lacked such authority. Hess v. DNR, 79-203-PC, 8/19/80; affirmed by Dane County Circuit Court, DNR v. Pers. Comm. (Hess), 80-CV-5437, 6/24/81
The Commission upheld the imposition of a one day suspension based on four separate incidents of inadequate performance by a lieutenant in the state patrol. The appellant had previously received two written reprimands. Clark v. DOT, 79-117-PC, 10/10/80
210.5(5) Progressive discipline
Respondent's decision to demote appellant from his position as captain and shift commander for a correctional institution to a sergeant position was not excessive where appellant had received a 10 day suspension one year earlier and appellant's supervisors had lost their trust in appellant and could no longer rely on the accuracy of his information. Respondent substantiated 10 allegations of misconduct violating four separate work rules, including the failure to carry out instructions and giving false information during an investigation. A number of his subordinates perceived favoritism by him towards a female subordinate officer. His supervisor directed him not to treat the subordinate any differently than the other correctional officers. Nevertheless, appellant continued to spend more time with that particular officer than with the other officers on duty, switched her assignment so she could cook breakfast for him, made numerous telephone calls to her at her home when he was on duty and did not answer truthfully when he was asked, during the disciplinary investigation, how frequently he called her. Bergh v. DOC, 98-0018-PC, 1/27/99
The civil service code does not require that lesser specified penalties be applied progressively in ascending order before discharge, and although there may be situations where a discharge would be inappropriate and too harsh a penalty, that is not the case here. Zehner v. Pers. Bd., Dane County Circuit Court, 156-399, 2/20/78)
Respondent was not required to follow progressive discipline against appellant, a supervisor. Asche v. DOC, 90-0159-PC, 5/21/97
The imposition of a 1-day and then a 3-day suspension as progressive discipline for the repeated second and third instance of sleeping at work was reasonable and not excessive. O'Connor v. DHSS, 94-0339, 0497-PC, 3/31/95
Just cause existed for the decision to discharge appellant, an Inmate Complaint Investigator at a correctional institution, due to an absenteeism violation (for taking leave when appellant had no remaining leave) and two misconduct violations (for not using time off work for the purpose requested, for failing to report to work as previously promised, for failing to notify the institution when she was going to be absent, for being insubordinate when refusing to provide her supervisor with the name of her mental health professional and for refusing to return to her supervisor's office as directed) where appellant had three other misconduct violations in the previous 12 months as well as two other absenteeism violations during the same period. Garner v. DOC, 94-0031-PC, 11/22/94; affirmed Milwaukee County Circuit Court, Garner v. Wis. Pers. Comm., 94-CV-013477, 11/28/95
Appellant's 1 day suspension was upheld where, 5 months earlier, he had received a written reprimand, also for failing to follow instructions, and where appellant's conduct was very disruptive to office efficiency. Breckon v. DOR, 93-0199-PC, 10/4/94
Appellant's discourteous and abusive actions toward supervisors who issued work order and his refusal to carry out order constituted just cause for discipline. A 3-day suspension was not excessive in view of previous one-day suspension and documented history of similar behavior. Drewieck v. UW, 92-0810-PC, 6/25/93
A three day suspension was held to be consistent with the concept of progressive discipline where respondent had previously reprimanded appellant for violating the same work rule and had made numerous efforts to improve appellant's performance before the suspension was imposed. Roberts v. DHSS, 80-169-PC, 3/17/83
There is no absolute requirement under the civil service code for progressive discipline. Alff v. DOR, 78-227, 243-PC, 10/1/81; affirmed by Dane County Circuit Court, Alff v. Pers. Comm., 82-CV-5489, 1/3/84; affirmed by Court of Appeals District IV, 84-264, 11/25/85; petition for review by Supreme Court denied 2/18/86
240.1 Definition
A constructive demotion does not exist where there has been a "temporary" change in duties at a lower level from a classification standpoint for a period of five months. It was undisputed that appellant was reassigned pending an investigation and that his reassigned duties were below the level of duties he had performed in his permanent position. However, appellant retained his classification and all related benefits during the "temporary" reassignment. The Commission concluded it lacked jurisdiction over the appeal under §230.44(1)(c). Stacy v. DOC, 97-0098-PC, 2/19/98; affirmed by Pierce County Circuit Court, Stacy v. Wis. Pers. Comm., 98-CV-0053, 7/9/98
A demotion does not occur unless there has been a permanent change via appointment to another position in a lower classification. Stacy v. DOC, 97-0098-PC, 2/19/98; affirmed by Pierce County Circuit Court, Stacy v. Wis. Pers. Comm., 98-CV-0053, 7/9/98
Not all elements of a demotion, as defined in the administrative code, must literally be present when considering whether a constructive demotion occurs. Stacy v. DOC, 97-0098-PC, 2/19/98; affirmed by Pierce County Circuit Court, Stacy v. Wis. Pers. Comm., 98-CV-0053, 7/9/98
Appellant was not demoted where he started working for respondent in an Attorney 13 classified position until he accepted an appointment to an unclassified position in March of 1980, he was making $12.427 at the time he accepted the unclassified position, and in August of 1994, appellant returned to classified service as an Attorney 14 with a wage of $32.466. Dusso v. DER & DRL, 94-0490-PC, 7/23/96
A constructive demotion of appellant in lieu of layoff had occurred based upon respondent's creation of a new position through substantial changes in appellant's AA 3 position. Respondent's intent in effecting this constructive demotion had been to discipline appellant because of dissatisfaction with her performance in the AA 3 position. Davis v. ECB, 91-0214-PC, 6/21/94
No actual change in classification is required as an element of a constructive demotion. Davis v. ECB, 91-0214-PC, 6/21/94
Appellant's appointment to a PA2 position after a break in service due to his resignation from a PA1 position in which he had obtained permanent status in class did not meet the definition of demotion set forth in §ER-Pers 1.02(5), Wis. Adm. Code. Davison v. DPI, 92-0191-PC, 1/27/93
The Commission has subject matter jurisdiction over an alleged constructive disciplinary demotion. In order to prevail, an employee must establish not only that changes in assigned duties and responsibilities imposed by management reduced the effective classification of the position, but also that the appointing authority had the intent to cause this result and to effectively discipline the employe. Davis v. ECB, 91-0214-PC, 6/12/92
Where the appellant alleged 1) that her position was reduced from a 75% to a 50% position, 2) that its duties and responsibilities were substantially reduced in terms of its supervision, the difficulty and responsibility of its functions, the level of initiative and independent judgment required to perform the functions, and the scope or impact of those functions and 3) that as a result of those changes the effective classification level of the position had been reduced, the appellant made allegations sufficient to pursue a constructive demotion claim. Davis v. ECB, 91-0214-PC, 5/14/92; explained further in interim decision, 6/21/94
A demotion does not occur unless the employe is assigned responsibilities that cause his (new) position to be classified at a lower level than the position he had held previously. "Demotion" cannot be interpreted so broadly as to include a reduction in salary advancement potential irrespective of whether the two positions involved were classified at the same or comparable classifications. Cohen v. DHSS, 84-0072-PC, 85-0214-PC, 86-0031-PC; Cohen v. DHSS & DER, 84-0094-PC, 2/5/87
A constructive demotion requires 1) a movement of the affected employe to a position that is ultimately determined to have a lower classification than the employe's original position 2) with the intent to discipline the employe. Cohen v. DHSS, 84-0072-PC, 85-0214-PC, 86-0031-PC; Cohen v. DHSS & DER, 84-0094-PC, 2/5/87
250 Suspension
Where petitioner was removed from normal pay status, was no longer allowed to work and to earn a salary, but was not terminated, he in effect was suspended from employment. While respondent's action of suspending the petitioner was less onerous and more favorable to petitioner than outright dismissal, it was not an option permitted by §230.37(2). Jacobsen v. DHSS, 91-0220-PC, 92-0001-PC-ER, 10/16/92; affirmed by Dane County Circuit Court, Jacobsen v. State Pers. Comm. 92-CV-4574, 93-CV-0097, 9/9/94
250.1 Definition
A written reprimand "equal to and carrying the weight of a one day suspension" but resulting in no loss of pay was a constructive suspension and the Commission had jurisdiction to review the discipline pursuant to §§230.44(1)(c) and .45(1)(a), Stats. Rodgers v. DOC, 98-0094-PC, 1/27/99
The Commission will look beyond the employer's characterization of an action to determine whether it had the legal effect of an action over which the Commission has jurisdiction pursuant to §230.44(1)(c), Stats. Rodgers v. DOC, 98-0094-PC, 1/27/99
A cognizable claim of constructive suspension can exist if the employe demonstrates that the disputed transaction had the same legal effect as a suspension. Rodgers v. DOC, 98-0094-PC, 1/27/99
It is not dispositive for appeal purposes whether a personnel transaction fits or does not fit within the definition of a particular type of transaction. The Commission must examine the practical effect the transaction has on the employe's employment status, in the context of the employer's intention in effecting the transaction, and the policy factors which underlie the statutory framework of the civil service, to determine whether the transaction partakes more of the nominal category of personnel transaction, e.g., a reprimand, or more of the more serious category, e.g., a suspension. Rodgers v. DOC, 98-0094-PC, 1/27/99
A disciplinary suspension has three obvious impacts on an employe. First, the employe is relieved of the performance of his or her duties. Second, he or she loses the opportunity to earn wages during the period of the suspension. Third, the employe's disciplinary record is blemished and this record may move the employe up the ladder in terms of progressive discipline in connection with any future disciplinary action. Rodgers v. DOC, 98-0094-PC, 1/27/99
Where respondent's disciplinary action blemished appellant's disciplinary record with a suspension rather than with a reprimand, it was considered a constructive suspension that could be appealed under §230.44(1)(c), Stats., even though the discipline resulted in neither any interruption in appellant's performance of his duties nor any interruption in his salary. Respondent's intention was to discipline appellant in a manner that would be as close as possible to a one day suspension without jeopardizing appellant's exempt status under the Fair Labor Standards Act. The discipline imposed had a significantly more severe disciplinary impact on appellant's employment status than a mere reprimand. Rodgers v. DOC, 98-0094-PC, 1/27/99
250.3 Statutory limit on duration
The Commission construes §230.34(l)(b), Stats., as limiting the period of any suspensions without pay to 30 calendar (rather than work) days. Smith v. UW, 84-0101,0108-PC, 8/5/85; clarifying 5/9/85 decision
270 Relief awarded
The statutory remedy for an improperly demoted employe is restoration to her former position except that absent a showing of obstruction or falsification, restoration shall not result in the removal of the position incumbent. In the absence of obstruction or falsification, the fact that the incumbent would have rights to other positions in state service does not satisfy the requirement that the incumbent shall not be removed. Warren v. DHSS, 92-0750-PC, 92-0234-PC-ER, 5/14/96
In a case arising from an improper demotion, an appropriate remedy was to offer appellant appointment to a position in the same classification as the position from which she was demoted and in which the nature of the assigned duties were equivalent. Warren v. DHSS, 92-0750-PC, 92-0234-PC-ER, 5/14/96
Where respondent's action of suspending the appellant was rejected and the matter remanded to respondent for action in accordance with the decision and appellant's request to clarify the order to require the payment of lost pay plus interest was unopposed, the respondent was required to pay appellant the lost pay plus interest. Rentmeester v. Wis. Lottery, 91-0243-PC, 7/8/94
While this digest has been prepared by Personnel Commission staff for the convenience of interested persons, it should be remembered that the decisions themselves are the ultimate source of Commission precedent.