Wisconsin Personnel Commission's             Digest of Decisions        March, 1999 Version

Sections 503.50 through 505.50

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503.50 Standing

An appointing authority has standing to appeal a denial of a reclassification request for a position within his unit. DER v. Wis. Pers. Comm. (Cady), Dane County Circuit Court, 79-CV-5099, 7/24/81

Appellant who was not aware of a vacancy and, therefore, did not apply for it, lacks standing to raise issue with the change in the headquarters city of the position after someone was hired to fill the vacancy. Appellant suffered no injury in fact. Ernst v. DATCP, 97-0152-PC, 7/1/98

Appellant lacks standing to appeal a hiring decision where it was undisputed that he would not have applied for the vacancy even if he had been aware of it. Appellant suffered no injury in fact. Ernst v. DATCP, 97-0152-PC, 7/1/98

Employe X filed an appeal of a reallocation decision and later left the position. Employe Y transferred into the position vacated by X and requested to be added as a party to X's appeal, pursuant to s. 227.44(2m), Stats. The Commission concluded that Y had a "substantial interest [which] may be affected" by a decision in X's case and therefore was added as a party. The Commission noted that the case remained an appeal of the decision reallocating X's position, rather than an appeal of the decision setting the class level for the position filled by Y. Kiefer v. DER, 92-0634-PC, 5/2/94

Appellants were "interested" persons for purposes of seeking a declaratory ruling under §227.41, if for no other reason, because of their allegation that an evasion of the civil service code had resulted in the improper expenditure of tax dollars. ACE et al. v. DHSS et al., 92-0238-PC, 1/12/93

To the extent that the question of standing involves an issue of subject matter jurisdiction, it cannot be waived. ACE et al. v. DHSS et al., 92-0238-PC, 1/12/93

The appellant, who was qualified to apply for a position because of his status as an employe of a state agency, lacked standing to contest the decision to limit competition to current classified employes because he was not "adversely affected." Taylor v. DMRS, 90-0279-PC, 11/1/90

Where appellant participated in a successful group appeal of a reallocation, and then retired after the entry of the Commission decision but before the Commission's decision ultimately was upheld in judicial review proceedings and effectuated, and respondent failed to include him in the group of employes who received reallocation as a result of the ultimate implementation of the Commission's decision, it was held that he had standing to challenge respondent's failure to have included him in the group of employes whose positions were reallocated, since presumably he would have been entitled to some back pay for the period preceding his retirement. Thompson v. DOT & DER, 88-0037-PC, 6/29/88

In an appeal arising from the failure to provide exam scores or rankings as part of the certification, the failure to consider the scores would cause injury to the appellant who was among those certified, to the extent the scores can be shown to be an appropriate factor for consideration in a selection decision. Thompson v. DMRS & DNR, 87-0204-PC, 6/29/88

Appellant, who was certified but not selected for a vacant position, has standing in an appeal of the non-selection decision. Allen v. DHSS & DMRS, 87-0148-PC, 2/12/88

Complainants had standing to challenge agency's decision to consider career executive and transfer candidates as well as those who, like complainants, had taken the competitive civil service exam, notwithstanding that there were nonminority candidates who were similarly disadvantaged by the addition of the Career Executive and transfer candidates, and that an order restricting competition to candidates who had taken the competitive examination conceivably could have a "boomerang" effect on minority candidates by creating more competition at the exam stage, because the question of whether some nonminority candidates may have received similar treatment runs to the merits rather than to standing, and even if there were some nonminority candidates treated the same as minority candidates, this would not necessarily be inimical to liability, and because a conceivable remedy could hypothetically have an adverse effect on complainant's interests does not make the original claim of injury hypothetical or conjectural. Furthermore, complainants had standing notwithstanding respondent's argument that they ultimately were able to be considered for the position in question, and were therefore not among the group on whom the alleged disparate impact falls, since they meet the requirement of alleging that an employment action which caused them injury-in-fact is illegal under the Fair Employment Act, which does not limit discrimination to action taken against the complainants based on his or her age, race, creed, color, etc. Balele & Humphrey v. DMRS, DER & DETF, 87-0047, 0048-PC-ER, 12/2/87

Complainant, who sought review of respondent's use of "balanced" screening and hiring panels, lacked standing due to the absence of any allegation of injury to himself for the time period covered by the complaint and arising from the disputed practice. Complainant had not appeared before such a panel nor had he applied for any positions during the 5 years preceding his complaint. Larson v. DHSS, 86-0152-PC-ER, 7/8/87

Appellant lacked standing to challenge an appointing authority's alleged failure to follow their policy regarding hiring preferences for veterans since appellant was not a veteran and had not suffered any "injury in fact" in that regard. Royston v. DVA & DMRS, 86-0222-PC, 6/24/87

Appellant, an out-of-state resident, had standing to appeal respondent's decision not to allow appellant to compete in an examination because he did not meet Wisconsin residency requirement. Wiars v. DMRS, 86-0209-PC, 3/4/87

The appellants had standing to appeal the decision to reclassify a coworker's position because of the effect of the reclassification in the event of a future layoff. Peabody & Disterhaft v. DILHR & DER, 85-0060, 0114-PC, 4/16/86

Appellant had standing to appeal a decision to fill a new position (created via reorganization) via reclassification/regrade rather than by competition because appellant would have been in a position to compete for the position. Witt v. DILHR & DER, 85-0015-PC, 9/26/85

Respondent Secretary of Department of Employment Relations lacked standing to challenge his own decision not to reallocate appellant's position to a particular classification. The appeal was filed by an employe whose position was reallocated from Research Analyst 3 (RA3) to RA2 as a result of a classification survey. Appellant proposed that her position should have been reallocated to the RA3 level. Respondent proposed that, if its initial reallocation decision was incorrect, appellant's position should be at either the RA3 or Research Technician 4 level. The Commission declined to consider respondent's proposed issue because the Secretary was part of the decisional process and, therefore., was not an aggrieved party. Nichols v. DER, 83-0099-PC, 9/16/83

Appellants lacked standing to obtain review of the administrator's accretion decision under §230.15(l), Stats, where the appellant could not even be considered for accretion by the administrator due to a preclusive (an unreviewable) determination of "minimal qualification" made by DILHR. Smith & Berry v. DILHR & DP, 81-412,415-PC, 8/5/82

Appellants, who were Disabled Veterans Outreach Program staff who had been working for various veterans organizations under contract with DILHR, had standing to obtain review of respondents' decision to classify the permanent DVOP positions within DILHR. The appellants had been in line to fill the permanent positions until they failed an examination and a different classification decision might have resulted in either no exam or a different exam being given. Smith & Berry v. DILHR & DP, 81-412,415-PC, 8/5/82

The appellant, supervisor of the Elkhorn Job Service, was found to have standing to appeal respondent's decision to reclassify a fellow employe, (the supervisor of the Janesville Job Service), the injury occurring when appellant was denied the opportunity to have competed for the Janesville job since it was not opened for competition. May v. DILHR & DP, 82-23-PC, 7/8/82

Appellant's union had standing to appeal the classification of a limited term position where the employe filling the position was a union member even though the position fell outside of the scope of the collective bargaining agreement. The union was found to lack standing to seek back pay but the employe was permitted to be added as a party. Bricklayers and Radish v. DHSS, 81-367-PC, 5/28/82

Where the appellant was a state employe at the time he requested reclassification and at the time he appealed, the fact that he was not a state employe at the time of the prehearing did not affect his standing to prosecute his appeal. Renard v. DHSS & DP, 80-317-PC, 1/22/81

A question of standing under §230.44(l), Stats., is resolved by reference to §§227.01(6) and (8), Stats., as applied in Wis. Environmental Decade v. PSC, 69 Wis. 2d 1, 10, 230 N.W. 2d 243 (1975), wherein the court looked for "injury in fact." In this case, the appellant was not in a certifiable range for the position in question and hence could not have been affected by the position's reclassification, and her allegation of mental anguish could not qualify as "injury in fact," particularly in light of Cornwell Personnel Associates v. DILHR, 92 Wis. 2d 53, 62, (Court of Appeals, 1979). Pullen v. DILHR, 79-72-PC, 5/15/80

Where the appellants filed an appeal in 1979 with respect to a failure to pay overtime in 1977, and were met with a motion to dismiss for untimely filing, one of their alternative arguments was that their appeal ran not to the 1977 failure to pay overtime but to the decision of the administrator in 1979 to pay overtime to certain other employes in compromise and settlement of an appeal that they had timely filed in 1977. The Commission held that this decision was not in effect a decision not to pay the appellants and that since they were not parties to the other appeal, the decision did not affect adversely their substantial interests and they lacked standing to appeal it. Wickman v. DP, 79-302-PC, 3/24/80

A union or union representative has standing to appeal a decision to fill a job on an open competitive basis. Kienbaum v. UW, 79-213-PC, 12/13/79

The standing of the appellant was not affected by the absence of immediate injury caused by the administrator's decision where the appellant's interests could be affected in the future by the application of the administrator's decision. Kaeske v. DHSS & DP, 78-18-PC, 11/22/78

An appellant who objected to the admission of a third party to an exam and appointment to a position had standing to appeal where the position in question supervised appellant's position. Heil v. DP & DHSS, 78-13-PC, 12/20/78

A division administrator has standing to appeal a reclassification denial with respect to a position in his division which he supervises. Sielaff v. DP, 78-2-PC, 11/22/78

Union was determined to have a sufficient interest to invoke §227.06, Stats., and seek a declaratory ruling regarding benefits due a wrongfully discharged employe on reinstatement. Request for Declaratory Ruling, 78-37, 8/29/78

504 Amendment (see also 712.5)

Appellant's tentative reference to the Wisconsin Fair Employment Act in its post-hearing brief to an appeal under §230.44(1)(d), Stats., of a non-selection decision, was insufficient to create an obligation for respondent to object to the consideration of such a claim at the pain of creating an implied waiver. While it is possible to effect a waiver by silence or inaction, the tentative reference in appellant's brief did not indicate that appellant was seeking to amend his appeal. It could not be concluded that respondent reasonably should have foreseen the possibility that complainant's reference, coupled with respondent's failure to object to that reference, would be converted sua sponte and without prior notice into an accomplished amendment converting the civil service appeal into a FEA claim and accompanied immediately by the adjudication of the claim and the establishment of liability. There was no effective waiver by respondent to the interjection of the FEA claim. The parties had not had the opportunity to present arguments on a possible amendment or to make a record on that issue. The Commission remanded the matter to the designated hearing examiner to allow complainant to seek to amend his appeal to add a claim under the FEA. Holley v. DOCom, 98-0016-PC, 1/13/99

Deciding whether the appellant to a civil service appeal of a selection decision should be allowed, after hearing, to amend his appeal to add a claim under the Wisconsin Fair Employment Act, involves the informed exercise of discretion. Factors to consider should include, pursuant to Kloehn v. DHSS, 86-0009-PC-ER, 1/10/90, the stage of the proceeding, the opportunity appellant had to amend earlier and whether the proposed claim should have been obvious at an earlier point in the proceeding. Holley v. DOCom, 98-0016-PC, 1/13/99

A grievance which merely alleged that an employe had been harassed by his employer without describing the conduct which was alleged to constitute harassment failed to describe "the condition of employment which is the subject of the grievance" or the "facts upon which the grievance is based" as required in §ER 46.05(3). When the appellant failed to state on his first, second and third step grievance forms that he was grieving the failure to promote him, and when the respondent's answer did not respond to such an allegation, the appellant was barred from seeking to later amend his fourth step grievance pending before the Commission to refer to the failure to promote. Flannery v. DOC, 91-0047-PC, 2/21/92

Amendment was not permitted where the original claim related to the first nonselection decision and the facts set forth in the amended appeal concerning the second and third transactions related to the act of filing the original appeal, i.e., it was alleged that retaliation occurred because the original appeal was filed. However, because the proposed amended complaint was filed within 30 days of the alleged date of notification of the third transaction, the Commission treated that matter as a separate appeal. Schmidt v. DHSS, 88-0131-PC, 6/14/89

505.01 Same appellant

Appellant's motion to sever was denied where the two personnel actions (a suspension and a discharge) occurred two months apart but were clearly related, involved the same witnesses, background facts and, possibly, defenses. Thompson v. UW, 88-0058, 0103-PC, 10/31/88

It is the Commission's usual practice to keep appeals separate from companion discrimination complaints unless and until a consolidated hearing becomes appropriate, in order to permit proper application of the different statutory standards and to deal with any jurisdictional problems. Thorn v. DHSS, 81-401-PC, 12/18/81

505.02(2) Hearing

While there were various distinctions between the reallocation appeal and three discrimination/retaliation claims in terms of parties, issues and burdens of proof, consolidation was appropriate where two of the three personnel transactions that were the subject of the appeal were also the subject of the equal rights proceedings. It made sense in terms of judicial economy to combine the cases for one hearing on all issues rather than holding two hearings. Thorn v. DHSS, 81-401-PC, 12/18/81, distinguished. Harden & Nash v. DRL & DER, 90-0106-PC-ER, etc., 1/23/96

Two cases, filed by separate appellants, were ordered consolidated where they were both being processed according to the expedited arbitration procedure under §230.44(4)(bm), Stats., the respondent was the same in both cases, the issues, though not identical, substantially overlapped, it appeared the respondent would call at least some of the same witnesses in both cases and the factual backgrounds in the two cases were similar, although not identical. Wakely & Johnsonv. DER, 94-0253, 0163-PC, 2/20/95

Appellants' cases were consolidated for hearing because the respondent was the same, the issue was the same, and the circumstances were the same where appellants, although in different layoff groups, were employed in the same department and lost their jobs as the result of the same layoff plan. Respondent still had to establish just cause as to each appellant. Thoresen & Behm v. UW, 93-0202, 0212-PC, 1/6/94

Consolidation for hearing was ordered where the appellants' position descriptions were similar, the witnesses were the same in all four cases, and the classifications in question were the same. Martin et al. v. DP, 83-0031, 0035, 0036, 0037-PC, 5/25/83

These reclassification appeals were ordered consolidated for hearing on a determination that it would effect administrative economy and convenience where the two appeals had a common respondent, respondent's counsel, and respondent's witnesses, and the positions in question had the same classification and the issues for hearing were basically the same, and this outweighed the differences between the two jobs. Jobelius & Herald v. DP, 80-306, 250-PC, 1/8/81

505.50 Open records law

While all personnel records implicate reputation or privacy interests to a certain extent, the analysis in Woznicki v. Erickson, 202 Wis. 2d 178, 195 (1996) does not exempt any record from disclosure; it merely subjects personnel records to the balancing test. The presumption remains that the records should be disclosed. Carter v. Wis. Pers. Comm., 98-CV-2620, 1/28/99

The public's interest in disclosure of a settlement agreement arises from the fact that the petitioner was a public employee and he was engaged in public litigation, in the form of administrative proceedings, against an arm of state government. Even though the settlement did not involve the direct payment of money, the public's right to know the terms of the agreement were just as strong. Carter v. Wis. Pers. Comm., 98-CV-2620, 1/28/99

The open records law advances the strong public interest in knowing the terms and conditions under which any public employee leaves office and this interest may only be overcome in the most limited situations. Even to the extent that the public may have a greater interest in the disposition of claims involving higher level rather than lower level employes, the employe must still establish an actual threat to his privacy or reputation which implicates the public's interest in keeping such matters private. Carter v. Wis. Pers. Comm., 98-CV-2620, 1/28/99

A settlement agreement reached in a case before the Commission was subject to release to the public under the open records law where the agreement revealed that: 1) an employment dispute existed that led ultimately to the termination of employment; 2) the employe disputed the grounds for the termination and challenged it before the Commission, claiming the termination was discriminatory; 3) the employe agreed to resign, not seek future employment with the employer, drop his claims and be provided with a neutral reference; and 4) the parties agreed that a performance evaluation, letter of reprimand and letter of termination would be pulled from the employe's personnel file and held separately. Disclosure of those other documents was not before the court. There was nothing in the settlement agreement that created any reasonable expectation of non-disclosure on the part of the employe. Carter v. Wis. Pers. Comm., 98-CV-2620, 1/28/99

When determining whether to make a record available, it is the public's interest in disclosure, not the requester's specific interest, which matters. Carter v. Wis. Pers. Comm., 98-CV-2620, 1/28/99

The public interest in revealing the terms in which legal disputes involving an arm of the State, even legal disputes involving the termination of public employees, outweighs the public interest in preserving the privacy and reputation of the employee where the record sought did not reveal the nature of the conduct alleged against the employe and the record itself created no independent expectation of privacy. Carter v. Wis. Pers. Comm., 98-CV-2620, 1/28/99

A request for access to a sex discrimination complaint file was made by a fellow employe of complainant who had alleged that the requester was one of a group of male officers who were engaged in harassment of female officers at a correctional institution by reporting to institution management every rule violation by female officers they observed, to see how management would respond. Respondent DOC objected to this request on the ground that the review of the file by the person making the request would result in further harassment or retaliation against complainant. The request was granted because the strong presumption in favor of disclosure was not rebutted by a showing that this was the type of exceptional case recognized under the law where denial of access is appropriate. The person requesting access already was aware of the general nature of the accusations, and there was no basis on which to conclude that knowledge of the specific content of the file would be likely to lead to improper conduct on his part. Further, he would be subject to discipline if he engaged in any improper conduct. Neal v. DOC, 94-0019-PC-ER, 6/2/94

Complainant's request to the Commission for disclosure of the identity of a witness under Wisconsin's Open Records Law was granted despite the Commission's equal rights investigator's statements to the witness during the course of the investigation that her information was confidential, where the complainant made a particularized showing of need for the information in order to pursue the complaint of discrimination and where all possibilities of avoiding the issue had been exhausted. Disclosure of the witness's identity was provided with specific safeguards. Stroud v. DOR, 82-PC-ER-97, 3/27/85


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.

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