Lengyel v. Sheboygan County, 96-0203

• Decision Date: 09 July 1997
• Docket Number: No. 96-0203,96-0203
• Citation: 212 Wis.2d 639,570 N.W.2d 61
• Parties: NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. Thomas E. LENGYEL, Plaintiff-Respondent-Cross Appellant, v. SHEBOYGAN COUNTY, Ann Wondergem, Gary Johnson and Dan LeMahieu, Defendants-Appellants-Cross Respondents.
• Court: Wisconsin Court of Appeals

Page 61

570 N.W.2d 61

212 Wis.2d 639

NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.

Thomas E. LENGYEL, Plaintiff-Respondent-Cross Appellant, v. SHEBOYGAN COUNTY, Ann Wondergem, Gary Johnson and Dan

LeMahieu, Defendants-Appellants-Cross Respondents.

No. 96-0203.

Court of Appeals of Wisconsin.

July 9, 1997.

APPEAL and CROSS-APPEAL from an order of the circuit court for Sheboygan County: L. EDWARD STENGEL, Judge. Affirmed in part; reversed in part and cause remanded with directions.

Before SNYDER, P.J., and BROWN and NETTESHEIM, JJ.

NETTESHEIM, Judge.

Thomas E. Lengyel was terminated from his employment as a social worker for the Sheboygan County Health and Human Services Department (HSS). In this action, Lengyel filed a complaint alleging claims against Sheboygan County; Ann Wondergem, his immediate supervisor; Gary Johnson, the HSS director; and Dan LeMahieu, the chairperson of the Sheboygan County Personnel Committee.

Against the County, Lengyel requested a writ of mandamus seeking reinstatement to his employment. Against Wondergem and the County, Lengyel alleged defamation. Against Wondergem, Johnson and the County, Lengyel alleged negligence. Against all of the defendants, Lengyel alleged due process violations pursuant to 42 U.S.C. § 1983, and a claim for deprivation of liberty interests without due process based on his substantive right to bodily integrity. ¹

Both sides moved for summary judgment. The trial court denied Lengyel's motion for summary judgment. The court granted the defendants' motions for summary judgment on all of Lengyel's claims except the due process allegations. We have previously granted the County's petition for leave to appeal the court's denial of this remaining claim. Lengyel has cross-appealed the court's grant of summary judgment to the defendants on his other claims. He also cross-appeals the trial court's denial of his motion for summary judgment. See Johnson v. Pearson Agri-Systems, Inc., 119 Wis.2d 766, 782-83, 350 N.W.2d 127, 135 (1984) ("Once the appellant has been granted an appeal, either on the basis of right or in the court's discretion, the respondent who was formerly required to bring a notice of review may now utilize the cross-appeal procedure and have nonfinal orders reviewed.").

We reverse the trial court's grant of summary judgment to the County dismissing Lengyel's writ of mandamus action and its corresponding denial of Lengyel's summary judgment motion as to this claim. We remand with directions that the court issue the writ of mandamus. We affirm the court's grant of summary judgment dismissing Lengyel's defamation, negligence and bodily integrity claims. We reverse the court's denial of summary judgment to the defendants on Lengyel's due process claims.

BACKGROUND

Lengyel was a social worker employed by HSS. On January 3, 1994, he was involved in an altercation with a 13-year-old neighbor boy, during which Lengyel struck the boy. On January 5, Lengyel reported the incident to Wondergem, his immediate superior. The following day, Lengyel also reported the incident to Johnson, the HSS department head. Eventually, Wondergem, with Johnson's approval, terminated Lengyel. For reasons not germane to this appeal, Lengyel did not appeal his termination through the existing county grievance procedures. Instead, he requested a hearing under WIS. ADM.CODE § HFS 5.07(3), ² which provides:

(5) A PPEALS. In the event of demotion or separation, permanent employes shall be provided with the right to appeal through an impartial process that may be recommendatory or enforceable on the employer.

The County granted Lengyel's appeal request and arranged for a hearing before the Sheboygan County Personnel Committee. The letter notifying Lengyel of the hearing stated: "The Committee intends to treat this hearing as a 'contested case' hearing, and each of the parties will be granted a full opportunity to present testimony and evidence which have reasonable probative value and are material to the issues." In its appellate brief, the County concedes that it agreed to assume the burden of proof at this proceeding.

At the hearing, Lengyel was represented by counsel. All parties were permitted to present evidence and to cross-examine witnesses. Each side presented briefs to the Committee at the close of the evidence. During the Committee's deliberation, LeMahieu, the chairman of the Committee, obtained information from the district attorney regarding the status of the agency's investigation of the incident between Lengyel and the neighbor boy.

During its deliberation, the Committee first voted on whether to uphold Lengyel's termination. The vote resulted in a tie. ³ The Committee then voted on whether to reinstate Lengyel. This vote also resulted in a tie. When Johnson, the HSS director, was informed of the deadlock, he decided not to reinstate Lengyel. On September 20, 1994, the Sheboygan County Health and Human Services Board (HSS Board) affirmed Johnson's decision to let Lengyel's termination stand. Lengyel responded with this lawsuit.

We will recite additional facts and specifics of the circuit court's rulings as they pertain to the appellate arguments.

STANDARD OF REVIEW

When reviewing a motion for summary judgment, we use the same methodology as the trial court. See M & I First Nat'l Bank v. Episcopal Homes Management, Inc., 195 Wis.2d 485, 496, 536 N.W.2d 175, 182 (Ct.App.1995); § 802.08(2), STATS. That methodology is well known, and we will not repeat it here except to observe that summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See M & I First Nat'l Bank, 195 Wis.2d at 496-97, 536 N.W.2d at 182. Although summary judgment presents a question of law which we review de novo, we still value a trial court's decision on such a question. See id. at 497, 536 N.W.2d at 182.

DISCUSSION

Writ of Mandamus

Lengyel appeals the trial court's grant of summary judgment to the County dismissing his mandamus action. Lengyel further appeals the court's denial of his request for summary judgment on this claim. The court ruled that Lengyel had not established that he had a clear legal right to reinstatement. The trial court also concluded that Lengyel had alternative adequate legal remedies, specifically certiorari review of the Committee's action.

Before a writ of mandamus may issue, the claimant must demonstrate: (1) a clear legal right; (2) a positive and plain legal duty; (3) substantial damages due to the nonperformance of the duty; and (4) no other adequate legal remedy. See Law Enforcement Standards Bd. v. Lyndon Station, 101 Wis.2d 472, 493, 305 N.W.2d 89, 99 (1981).

Lengyel contends that because the Committee's vote to uphold his termination ended in a tie, the County did not prevail at the hearing. As such, Lengyel concludes that he was clearly entitled to reinstatement and that the County had a corresponding clear legal duty to reinstate. The County contends that because the later vote to reinstate Lengyel ended in a tie, Lengyel did not prevail at the hearing. As such, the County concludes that Lengyel has no clear right to reinstatement and the County has no corresponding plain duty to reinstate. These conflicting positions reveal that the controlling question is which party carried the burden of proof at the hearing before the Committee.

As we have noted, the hearing was conducted pursuant to WIS. ADM.CODE § HFS 5.07(3). However, this code provision is very general and it does not specifically address the burden of proof. Therefore, we asked the parties to provide us with any relevant county ordinances or policies which might assist us on this question. The parties responded with a stipulation which included the following:

(1.) That the hearing conducted by the Sheboygan County Personnel Committee was not held pursuant to any ordinance or policy of Sheboygan County or pursuant to the County's grievance procedure.

(2.) That Lengyel had a protected property interest in his continued employment with Sheboygan County and the County believed that it was necessary pursuant to the Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution to provide Lengyel with a post-termination due process hearing.

(3.) That the hearing was intended as an opportunity for Lengyel to appeal the decision of the County to discharge him.

Thus, in order to accord Lengyel his right to a due process hearing, the parties created their own hybrid proceeding and agreed to utilize the procedures set out in WIS. ADM.CODE § H FS 5.07(3). The parties have not cited us to any case law or other authority which has specifically addressed this section of the administrative code nor the burden of proof question which is before us. Nor have we discovered any such authority.

However, Lengyel has directed us to Reinke v. Personnel Board, 53 Wis.2d 123, 191 N.W.2d 833 (1971). There, the supreme court held that in an appeal proceeding before the State Personnel Board, the employer carries the burden of proof. See id. at 131-33, 191 N.W.2d at 837. This holding was cited with approval in a later case, Berkan v. Personnel Board, 61 Wis.2d 644, 648 n. 2, 215 N.W.2d 354, 356 (1973). ⁴ We see no reason why the same holding should not apply to an appeal proceeding pursuant to WIS. ADM.CODE § H FS 5.07(3). This is especially so in this case since the County noticed the proceeding as a "contested case" hearing and agreed to assume the burden of proof. ⁵

We hold that the County failed to carry its burden of proof when the Committee's initial vote on whether to uphold Lengyel's termination produced a tie. The subsequent vote on whether to reinstate Lengyel was unnecessary and and of no legal effect. As such, Lengyel prevailed at the hearing.

The...