Hutson v. STATE PERSONNEL COM'N
| Decision Date | 08 July 2003 |
| Docket Number | No. 01-2959.,01-2959. |
| Citation | 2003 WI 97,665 N.W.2d 212,263 Wis.2d 612 |
| Parties | Vera HUTSON, Plaintiff-Appellant, v. STATE of Wisconsin PERSONNEL COMMISSION, Defendant-Respondent-Petitioner. |
| Court | Wisconsin Supreme Court |
For the defendant-respondent-petitioner the cause was argued by David C. Rice, assistant attorney general, with whom on the briefs was Peggy A. Lautenschlager, attorney general.
For the plaintiff-appellant there was a brief by Alan C. Olson and Alan C. Olson & Associates, S.C., New Berlin, and oral argument by Alan C. Olson.
An amicus curiae brief was filed by Richard Briles Moriarty, assistant attorney general, and Peggy A. Lautenschlager, attorney general, on behalf of the Wisconsin Department of Corrections.
¶ 1.
This case involves interpretation of Wisconsin's so-called "whistleblower" law. The State of Wisconsin Personnel Commission (Commission) seeks review of a published court of appeals decision, Hutson v. Personnel Commission, 2002 WI App 249, 257 Wis. 2d 900, 654 N.W.2d 465, which reversed a circuit court judgment upholding the Commission's dismissal of an action for unlawful retaliation against the Wisconsin Department of Corrections (DOC) and remanded the case for additional proceedings.
¶ 2. The main question presented in this case is whether an employee's identification of a single management action is sufficient to qualify as a disclosure of information relating to "mismanagement" and trigger protection from retaliation under the whistleblower law, Wis. Stats. §§ 230.80 to 230.89 (1995-96).1
¶ 3. Vera Hutson filed a complaint against the DOC with the Commission, alleging, among other things, unlawful retaliation against her because of her participation in activities protected by the whistleblower law. She claimed that she was given a written reprimand in retaliation for a memo she wrote to her supervisor complaining of mismanagement.2 Following a five-day hearing, the Commission issued a decision and order dismissing the complaint, finding that Hutson's memo was insufficient to satisfy the requirements of a "disclosure" of "information" relating to "mismanagement" defined in Wis. Stat. § 230.80(7) as a "pattern of incompetent management actions."
¶ 4. Hutson then sought review of the decision in circuit court, and the Milwaukee County Circuit Court, David A. Hansher, Judge, affirmed the Commission's decision. Hutson appealed, and the court of appeals reversed and remanded the case, finding that Hutson's memo fit the definition of "mismanagement" and was a protected disclosure of information under Wis. Stat. § 230.80(5). We accepted the Commission's petition for review. We now reverse the decision of the court of appeals because we conclude that the Commission's statutory interpretation is correct. "Mismanagement" as defined in Wis. Stat. § 230.80(7) requires identification of more than a single management action, and Hutson's memo does not otherwise satisfy the requirements for a protected disclosure of information under whistleblower law.
¶ 5. The Commission's lengthy opinion included extensive findings of fact. Based on those findings, we discuss those facts, undisputed on appeal, that relate to and assist in clarifying the issue relating to Hutson's whistleblower law claim.
¶ 6. Vera Hutson began working for the DOC as a probation and parole officer in 1990. On October 2, 1995, Hutson began working in Unit 033, a new unit set up in the Milwaukee region specifically for the purpose of implementing a new statewide "administrative minimum" program approved by the legislature, under which the DOC could supervise low-risk offenders via a telephone call-in system. Hutson's immediate supervisor in Unit 033 was James Wake. Wake, in turn, reported to Kathleen Ware, an assistant chief for the Milwaukee region. Ware's immediate supervisor was Allan Kasprzak, the chief for the Milwaukee region, and Kasprzak reported to Eurial Jordan, the administrator for the Department of Corrections Division of Probation and Parole. At the top of the DOC chain of command was Michael Sullivan, the Secretary of the Wisconsin Department of Corrections.
¶ 7. Hutson felt that there were management problems in the unit and that the caseload for agents in Unit 033 was excessive. At least two other agents in the unit shared her feelings regarding the caseload. At the times relevant to this case, caseloads for probation and parole agents were generally calculated on a point system "designed to reflect the amount of time spent by the agent supervising offenders," meaning that cases with higher supervision levels generated more points. Under a memo of understanding between the agents' union and management effective during the time period at issue here, the maximum caseload was 260 points. However, the point system had no category for situations in which the agent was not required to meet with the offender on a scheduled basis.
¶ 8. On February 5, 1996, Hutson wrote a memo to Wake, with copies to Ware and two union officials, stating:
I am writing this correspondence to request workload relief and/or authorized overtime of one hour per every 5.5 points over the 260 point caseload cap per our union contractual agreement for the 1995-97 contract year. I am currently supervising a total of 559 cases, 475 under my agent number and 84 for a co-worker who will be out on sick leave for the next four to seven weeks. I am 319 points over the 260 maximum caseload cap. According to the [DOC] manual CC/SD standards cases classified as minimum are weighted as one point per case. I am aware of the fact that some specialized units are excluded from the 260 point caseload cap maximum. However, the exclusion only takes effect after a mutual agreement is reached between [DOC], AFSCME Council 24 and the local union. To my knowledge that has not occurred. Therefore I am fully covered under the 1995-97 contract and the agreement of a 260 workload cap maximum.
Due to the excessive workload and a caseload that continues to grow without a foreseeable end, coupled with the lack of clarity under a supervisory style that is extremely arbitrary and capricious, I have found the work environment to be highly stressful and terribly distracting to try to manage my caseload adequately and professionally. I am at this time requesting that reasonable guidelines be established that would enable me to perform my job to best meet the needs of the protection of the community, the [DOC] and myself as agent in the Minimum/Administrative unit.
Your timely response will be appreciated;
Sincerely,
¶ 9. On February 9, 1996, Wake responded to Hutson's memo with a memo scheduling a meeting to discuss Hutson's concerns. Ware also received a copy of Wake's memo. When Hutson subsequently informed Wake of a scheduling conflict, Wake rescheduled the meeting.
¶ 10. Before any meeting took place, however, Wake and Hutson got into a heated argument. Hutson was out on medical leave from February 7, 1996, to February 19, 1996. According to a memo from Wake to Ware, on February 19, Hutson shouted at Wake and accused him of harassment and racism when Wake approached her regarding a case and directed her to take a particular course of action to remedy a problem that had occurred while she was gone. In response to this argument, Wake contacted two of Hutson's previous supervisors to find out about their experiences with Hutson. In talking with Wake, both of these previous supervisors noted problems working with Hutson.
¶ 11. On February 21, 1996, Wake filed a complaint with the DOC's Affirmative Action office, alleging that Hutson was harassing him and creating a bad work environment. As a result of the argument on February 19, 1996, Wake began a separate file on the interactions he had with Hutson lest Hutson should file a complaint against him. From that point on, Wake communicated with Hutson in writing or made sure that a third party was present when speaking with her.
¶ 12. On February 29, 1996, Wake, Ware, and Hutson met regarding Hutson's "workload relief" memo. Ware asked Hutson to describe the problems she observed in the unit. After hearing Hutson's comments on such issues as an absence of guidelines and problems with Wake's management of the unit, Ware explained Unit 033 was not subject to the point limits regarding caseload that applied to other units under the union memo of understanding. Wake and Ware also met with agents Michelle McKinstry and Vicki Turner on the "workload relief" issue.
¶ 13. On March 5, 1996, Ware sent a memo to Hutson, McKinstry and Turner, stating, in relevant part:
¶ 14. Wake held a unit meeting on March 13, 1996, regarding procedures, practices, and issues within the unit. Wake terminated the meeting after Hutson stated to Wake: "You are treating us like slaves."
¶ 15. On March 15, 1996, Hutson wrote a memo to Allan Kasprzak. She sent copies of this memo to Wake, Ware, and a union representative. This memo stated, in part:
Allan I am sending this correspondence to you out...
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