Dykman v. Bd. of Regents of the Univ. of Wis.
| Decision Date | 04 November 2021 |
| Docket Number | Appeal No. 2020AP1256 |
| Citation | 2022 WI App 1,968 N.W.2d 872 (Table) |
| Parties | Benjamin M. DYKMAN, Petitioner-Appellant, v. BOARD OF REGENTS OF the UNIVERSITY OF WISCONSIN, Respondent-Respondent. |
| Court | Wisconsin Court of Appeals |
¶1 Benjamin Dykman seeks judicial review of a decision by the provost of the University of Wisconsin, which affirmed a decision by the university's office of compliance, which denied Dykman's disability discrimination complaint. In this appeal, Dykman purports to assert up to twenty separate issues for our review, and he makes wide-ranging allegations of impropriety against the university's department of psychology, the office of compliance, the provost, and the circuit court. At bottom, Dykman asks us to conclude that the department changed his employment classification in March 2014 because of a perceived disability. He also asks us to relieve him of obligations he assumed under an agreement that he reached with the department in November 2014 to resolve an earlier grievance he filed based on the same adverse employment decision and nearly identical facts. We reject Dykman's arguments and affirm the circuit court, which affirmed the provost's decision.
¶2 This is a review of an agency action decision pursuant to WIS. STAT. § 227.52 (2019-20),1 and our review is limited to the provost's decision denying Dykman's discrimination complaint. Nevertheless, because Dykman's employment history and prior grievances are pertinent to the current dispute, we include background facts about these topics.
¶3 Dykman held a position as a senior lecturer in the university's department of psychology for approximately eighteen years until his retirement in December 2017. As of 2014, he had a one-year "rolling horizon" appointment. As we understand it based on the parties’ submissions, a rolling horizon appointment is a limited form of job protection. Each day that Dykman enjoyed this appointment classification, he was guaranteed one year of lecturing commitments beyond that date.
¶4 In March 2014, the department revoked Dykman's rolling horizon appointment and changed his employment classification to a one-year, fixed-term renewable appointment. This decision to change Dykman's employment classification was made during a closed session of the department's executive committee, which we refer to as the "March 2014 meeting." The department communicated its decision to Dykman by letter, providing specific performance-based reasons for the decision.
¶5 Dykman promptly challenged the revocation of his rolling horizon appointment by filing a grievance with the university's academic staff appeals committee (ASAC). For ease of reference, we refer to this as Dykman's "first grievance." In his first grievance, Dykman contested the process that was used and conclusions that were reached during the March 2014 meeting. Among other things, he argued that the performance-based reasons given by the department were "unfounded or grossly exaggerated" and did not "warrant a change" in his appointment. He also asserted that "[s]erious, emotionally charged, unfounded defamation" of his character occurred at the March 2014 meeting, including a comment by one colleague that a second colleague said that Dykman "fit the profile of a very dangerous person."
¶6 Several months later, the department's executive committee voted to reconsider its prior action and reinstate Dykman's one-year rolling horizon appointment, contingent upon Dykman withdrawing his first grievance and entering into a "binding retirement agreement" with the department. Following that vote, Dykman negotiated and signed a written agreement, which we refer to as the "November 2014 agreement." The November 2014 agreement provided in pertinent part as follows:
Absent cause for dismissal, nonrenewal or layoff that would apply to any University Instructor, [Dykman] shall hold [his] appointment, as Senior Lecturer for three (3) years, beginning January 2015, and until [his] resignation and retirement in December 2017. The agreement to separate from employment with the Department no later than December 2017 shall be binding except in the event that the University offers to extend [his] employment and [he] agree[s] to such an extension.
¶7 In June 2016, approximately nineteen months after he signed the November 2014 agreement, Dykman filed another grievance with ASAC, which we refer to as his "second grievance." In his second grievance, Dykman again challenged the performance-based reasons given for changing his employment classification during the March 2014 meeting. He also sought to avoid his obligations under the November 2014 agreement (that is, what he referred to as his upcoming "forced retirement"), arguing that he had been forced to agree to terms he did not like based on an "unfounded, capricious, and arbitrary evaluation" of his teaching ability. According to Dykman, the issues he was "raising and seeking to settle" in his second grievance were "different" from the issues he raised and settled in his first grievance. Specifically, he stated that "needless, unfair and harmful wrongdoing and defamation of character" occurred during the November 2014 meeting, and he demanded that certain colleagues be disciplined for their comments. Again, among the alleged defamatory remarks listed in Dykman's second grievance was the assessment that he "fit the profile of a very dangerous person."
¶8 ASAC issued a decision dismissing Dykman's second grievance as untimely. As ASAC explained, "[t]he vast majority of instances" that Dykman cited in his second grievance "were related to the instances addressed and resolved" in the November 2014 agreement, and the remaining instances post-dating November 2014 were "non-employment issues."
¶9 In December 2017, Dykman sought reconsideration of ASAC's dismissal of his second grievance based on "new evidence." This purported new evidence consisted of an audio recording of the March 2014 meeting. ASAC declined to accept the recording as new evidence or reconsider its decision. Nothing in the administrative record suggests that Dykman sought administrative or judicial review of ASAC's decisions dismissing his second grievance and denying his request for reconsideration.
¶10 Dykman resigned and retired on December 31, 2017.
¶11 Then, in February 2018, Dykman filed a complaint with the university's office of compliance, in which he alleged perceived disability discrimination and sought to nullify the November 2014 agreement. The audio recording of the March 2014 meeting was the centerpiece of Dykman's complaint.2 He argued that the audio recording, which included comments from colleagues stating that Dykman was "violence prone" and that he may have suffered "neurological" difficulties or damage after a bike accident, demonstrated that his appointment had been revoked due to a perceived disability. According to Dykman, he should not be bound by the November 2014 agreement based on the following string of propositions: if the department had not subjected him to perceived disability discrimination during the March 2014 meeting, the committee would not have revoked his rolling horizon appointment, he would not have filed his first grievance, and there would have been no occasion to enter into his November 2014 agreement in which he settled that grievance by committing to a December 2017 retirement date.
¶12 Following a lengthy formal investigation, the office of compliance denied Dykman's disability claim. Among other things, it determined that the department did not coerce Dykman into entering the November 2014 agreement, that the November 2014 agreement was legally binding, and that Dykman was estopped from challenging the agreement after receiving its full benefit.3 The office of compliance also determined that Dykman's challenges to the March 2014 revocation decision and the November 2014 agreement were untimely and, further, that the recording did not constitute new evidence because Dykman had generally been aware of its contents at the time he filed his earlier grievances. Finally, the office of compliance determined that Dykman failed to prove that the department changed his employment classification due to a perceived disability. After "multiple reviews" of the audio recording, the office of compliance found that the department revoked Dykman's appointment due to his history of poor teaching performance, low enrollments, and unacceptable treatment of students. It found that the discussion during the meeting of his allegedly erratic and threatening behavior was related to safety concerns about how the department would communicate the adverse employment decision to Dykman.
¶13 Dykman appealed to the provost, who upheld the decision by the office of compliance. The provost emphasized that Dykman had been aware that some members of the committee perceived him as dangerous even before he filed his first grievance and, further, that "there is nothing in the [audio] recording that demonstrates that the action of removing [his] Rolling Horizon appointment was based on perceived disability." To the contrary, the provost found that the recording demonstrates that the "primary concern" motivating the revocation decision "related to [Dykman's] history of academic performance-related concerns." The provost explained that "a discussion about someone's potential emotional and physical response to a negative employment decision is not the equivalent of disability discrimination."
¶14 Dykman filed a pro se petition for judicial review in the circuit court, naming the University of Wisconsin Board of Regents as the respondent. See WIS. STAT. § 227.52. In the petition, he contested the March 2014 change in his employment classification, and he argued that he had been "misled and coerced" into signing the November 2014 agreement. The circuit court dismissed the petition for review. Dykman appeals.
¶15 In an appeal of a circuit court's decision r...
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