Arneson v. Jezwinski

Decision Date05 May 1999
Docket NumberNo. 95-1592,UW-M,95-1592
Citation592 N.W.2d 606,225 Wis.2d 371
Parties, 134 Ed. Law Rep. 336, 15 IER Cases 48 Rodney A. ARNESON, Plaintiff-Respondent-Petitioner, v. Marcia JEZWINSKI, Personnel Coordinator, Administrative Data Processing,adison, Durwood Meyer, Assistant Director, Administrative Data Processing,adison and Dan Thoftne, Computer Operations Manager, Administrative Data Processing, adison, Defendants-Appellants.
CourtWisconsin Supreme Court

For the plaintiff-respondent-petitioner there were briefs by Jacqueline Macaulay and Macaulay Law Office, Madison and oral argument by Jacquelien Macaulay.

For the defendants-appellants the cause was argued by Richard Briles Moriarty, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.

¶1 DONALD W. STEINMETZ, J

The petitioner, Rodney Arneson, seeks review of a court of appeals' decision that reversed the circuit court's denial of the defendants' motion for summary judgment on grounds of qualified immunity. Arneson contends that the defendants are not entitled to qualified immunity from his 42 U.S.C. § 1983 suit because when they demoted him and suspended him without pay for 30 days following a sexual harassment complaint filed against him by a subordinate employee, they violated his clearly established constitutionally protected property interests in his wages and continuous employment.

¶2 This court is presented with the following question: whether, in April 1990, when the defendants suspended the plaintiff without pay for 30 days and demoted him following a complaint of sexual harassment, they had reason to be aware that their actions would violate Arneson's clearly established constitutional rights. This question demands that we resolve the following issues: did state law clearly establish in April 1990 that Arneson had a property interest in his wages and in his continuous employment and, if so, did federal law clearly establish in April 1990 the amount of due process Arneson was entitled to receive prior to being deprived of his property interests. If the answer to either question is "no", the defendants are entitled to qualified immunity. As we answer "yes" to the first question and "no" to the second, we find that the defendants are entitled to qualified immunity.

I

¶3 The parties agree that for purposes of the qualified immunity inquiry on summary judgment, as we are presented the case, the factual findings made by the Wisconsin Personnel Commission in Arneson's direct appeal of his discipline are undisputed. The direct appeal, which will be detailed more fully below, has been fully resolved. 1 In describing the background of this case, we draw where appropriate from the Commission's findings.

¶4 Rodney Arneson was a University of Wisconsin employee when, in March 1990, a female employee whom he supervised filed a sexual harassment complaint against him. When the complaint was filed, Arneson was employed by the University of Wisconsin--Madison, Administrative Data Processing (ADP) as a Management Information Specialist Supervisor 4 (MIS 4 supervisor). 2 He had been promoted to the position of MIS 4 supervisor in January 1990, and, at the time of the complaint, was within the statutorily defined probationary period that accompanies promotions within state public employment as provided by Wis. Stat. § 230.28(1)(a) and (am) (1989-90). 3 Prior to the January 1990 promotion, Arneson had attained permanent status in class as an MIS 3 employee 4 and had been working for the University for approximately nine years.

¶5 Arneson was the immediate supervisor of the female complainant, a high school student who worked as a tape operator for the ADP. On March 9, 1990, the female employee brought to work a bridal magazine, and while she was looking at it Arneson began talking and joking with her about the magazine and her wedding plans. Later that evening, the female employee gave him the magazine. When he returned it, Arneson told her that the most interesting thing in the magazine was a girl modeling a bra. Arneson also told her that he owned a camera and enjoyed taking pictures of beautiful things and that he believed that the most beautiful thing was a woman in her bra.

¶6 The female employee volunteered to Arneson that she was not interested in modeling for him, but that her sister modeled and might be interested. Arneson asked about the sister's looks and the female employee showed him her sister's picture. Arneson also asked the female employee to call her sister, which she did. Arneson then spoke with the sister and told her that he wanted to take pictures of her wearing a bra and slip, and that he would pay her $20 per hour to model for him.

¶7 Arneson further explained that he had taken similar pictures in the past, that he was married, that the photos were for his personal use, and that he could take the pictures at her house, his house, or on campus. The three then made plans to speak about further arrangements on the following Monday.

¶8 On that following Monday, March 12, the female employee told Arneson that her sister was not interested in modeling for him. After a brief discussion, neither Arneson nor the employee again spoke about taking photos.

¶9 The female employee did not go to work on Tuesday, March 13, although she returned on March 14. On March 15, the employee notified the defendant Durwood Meyer, Assistant Director of ADP, that Arneson had sexually harassed her. Meyer contacted the defendant Marcia Jezwinksi, ADP Personnel Coordinator, later that same day. On March 17, Jezwinski telephoned the female employee at her home and set up an appointment to speak with both her and her sister.

¶10 On Monday, March 19, Jezwinksi interviewed the employee and her sister. Both filled out formal sexual harassment complaints against Arneson, and Jezwinski asked that neither discuss the lawsuit with anyone. However, the next day, the female employee did discuss the sexual harassment with another employee at the ADP. That employee later told yet another employee, who, in turn, told Arneson on March 22 that Arneson was the subject of a sexual harassment complaint.

¶11 On March 23, Arneson sought out Jezwinski who confirmed that the female employee had filed a sexual harassment complaint against him. The two then scheduled a meeting between themselves and Arneson's immediate supervisor, the third defendant in this matter, Dan Thoftne, for later in the day.

¶12 The Personnel Commission's Findings of Fact described this meeting between Arneson, Jezwinski, and Thoftne as follows:

The meeting took place as scheduled. At the meeting, Jezwinski asked Arneson questions about his interaction with the employe and her sister regarding taking photos. Jezwinski told Arneson very little about the employe's allegations, except to the extent they were corroborated by Arneson's statements. At the close of the meeting, Arneson was directed to stay away from the employe and not talk to anyone about the matter. The employe was reassigned to the print room.

The commission further found that at this meeting, Arneson was given an opportunity to talk and before the meeting ended Jezwinski told Arneson that while she did not know what was going to happen, any level of discipline from reprimand through suspension or termination was possible.

¶13 On April 2, Thoftne and Meyer told Arneson that he was suspended with pay pending investigation of the employee's complaint. A letter of suspension was given Arneson by Thoftne and Meyer in Meyer's office.

¶14 On April 19, Arneson was given a letter of discipline. He was called into a meeting with both Thoftne and Meyer, who went through the details of the discipline which included a 30-day suspension without pay and a demotion to a position to be later determined, which was accompanied by a reduction in pay from $15.51/hr. to $12.659/hr. On May 3, 1990, Arneson was informed by letter that he was assigned to a Data Processing Operations Technicians 4 (DPOT4). There is no dispute that this position was below the position which Arneson held prior to his promotion to MIS 4 supervisor.

¶15 On May 15, 1990, Arneson filed an appeal of the disciplinary action with the Wisconsin Personnel Commission pursuant to Wis. Stat. § 230.44(1)(c). The Commission Examiner heard testimony over a three-day period in the fall of 1990 and concluded that Arneson did not receive his right to predisciplinary due process, and that, in any event, his behavior with the female employee did not warrant the severe discipline he received.

¶16 Subsequently, on February 6, 1992, the full Personnel Commission issued an interim decision and order adopting the hearing examiner's proposed decision and order. The proposed decision included the following conclusions of law:

1. This matter is properly before the Commission pursuant to § 230.44(1)(c), Stats.

2. Respondent [University of Wisconsin System (Madison) ] has the burden of proof.

3. Respondent was required to have provided appellant with a predisciplinary hearing sufficient under the standards set forth in Cleveland Bd. Of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 [ ] (1985).

4. Respondent failed to provide an adequate predisciplinary hearing.

5. This disciplinary action is defective and must be rejected.

¶17 Based on its conclusion that Arneson was entitled to a predisciplinary hearing and did not receive it, the Commission ordered the University of Wisconsin--Madison to take action consistent with its decision; i.e., to reverse Arneson's discipline and restore him to his promotional position.

¶18 Despite its conclusion that Arneson was denied his due process rights, the Commission deemed appropriate a discussion of the merits of the disciplinary action. It found that because Arneson's actions were not illegal, threatening or intimidating, and did not constitute a "solicitation" nor...

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    ... ... Whether a defendant is entitled to qualified immunity under undisputed facts is also a question of law that we decide independently. Arneson v. Jezwinski, 225 Wis.2d 371, 384, 592 N.W.2d 606 (1999). Finally, we independently review as a question of law whether a statute of repose bars an ... ...
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