Soderlund v. Zibolski

• Decision Date: 08 December 2015
• Docket Number: No. 2014AP2479.,2014AP2479.
• Citation: 874 N.W.2d 561,366 Wis.2d 579
• Parties: Eric N. SODERLUND, Plaintiff–Appellant, v. David B. ZIBOLSKI, Defendant–Respondent.
• Court: Wisconsin Court of Appeals

366 Wis.2d 579

874 N.W.2d 561

Eric N. SODERLUND, Plaintiff–Appellant,^†

v.David B. ZIBOLSKI, Defendant–Respondent.

No. 2014AP2479.

Court of Appeals of Wisconsin.

Submitted on Briefs June 16, 2015.

Opinion Filed Dec. 8, 2015.

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Jeff Scott Olson of The Jeff Scott Olson Law Firm, S.C., Madison.

On behalf of the defendant-respondent, the cause was submitted on the brief of Brad D. Schimel, attorney general, and Thomas C. Bellavia, assistant attorney general.

Before STARK, P.J., HRUZ, J., and THOMAS CANE, Reserve Judge.

¶ 1 CANE, J.

Eric Soderlund appeals an order granting David Zibolski's motion for judgment on the pleadings and dismissing Soderlund's claims. Soderlund argues the circuit court erroneously determined he failed to state a retaliation claim under 42 U.S.C. § 1983 (2012) for violation of his First Amendment rights. We hold: (1) Soderlund failed to plead a claim against Zibolski in his official capacity; (2) based on our adoption of the federal incorporation-by-reference doctrine, the circuit court properly considered a document referenced in the complaint without transforming Zibolski's motion into one for summary judgment; and (3) Soderlund's speech was not protected by the First Amendment, because he spoke on a matter of personal concern, rather than public concern, and because he spoke in his capacity as a public employee, rather than as a citizen. Accordingly, we affirm.

BACKGROUND

¶ 2 Prior to his resignation on February 28, 2012, Soderlund was employed by the Wisconsin Department of Justice (DOJ) for nineteen years as a forensic scientist in the state crime lab in Wausau. This case stems from a dispute between Soderlund and DOJ that began in 2006.

¶ 3 Soderlund failed a footwear identification proficiency test. On August 4, 2006, he initiated an internal complaint with DOJ, asserting his failure was caused by unwarranted deviation from DOJ quality assurance standards for footwear identification. On February 5, 2007, Soderlund's supervisor sent a response indicating that no action had been taken yet on his complaint because of a change in administration.

¶ 4 On April 28, 2008, Soderlund submitted to the Laboratory Accreditation Board of the American Society of Crime Laboratory Directors (accreditation board) a request for an investigation of the state crime labs, alleging DOJ was failing to adhere to its quality assurance standards regarding proficiency tests and, in particular, footwear analysis. Soderlund indicated that his concerns had been discussed in his performance evaluations over the previous several years. Soderlund provided a copy of the investigation request to his supervisor.

¶ 5 On April 29, the administrator of the state crime labs emailed the crime labs' quality assurance coordinator, who was responsible for administering proficiency tests. The email, which was copied to Soderlund, indicated too much time had been consumed by the proficiency test issues Soderlund raised and suggested no more time be spent on the matter.

¶ 6 On September 9, 2008, the accreditation board sent Soderlund a letter indicating that the issues he raised did not fall within the board's purview and were matters between Soderlund and his employer. On September 16, Soderlund filed a complaint with the accreditation board, contending the board was responsible for investigating Soderlund's allegations and for ensuring that DOJ was following its own quality system requirements and procedures. The board responded in November that it would investigate the complaint.

¶ 7 On April 29, 2009, Soderlund sent the crime labs' quality assurance coordinator a request for a "Quality Action" pursuant to DOJ procedures. Soderlund's request alleged unauthorized deviation from policies for footwear identification and inappropriate delay by DOJ in considering the complaint he had filed on August 4, 2006, "to address the Administration's determination that [he] failed CTS Impression/Imprint (footwear) Test No. 04–533."

¶ 8 On May 15, 2009, the crime labs' administrator wrote Soderlund, indicating Soderlund had wasted an extraordinary amount of DOJ personnel time addressing a dispute over the interpretation of DOJ quality assurance standards for footwear identification. The administrator ordered Soderlund to stop writing to DOJ personnel regarding his past performance on any proficiency test and indicated DOJ personnel would no longer respond regarding the issue.

¶ 9 On July 17, 2009, the accreditation board sent Soderlund a response to his September 16, 2008 complaint regarding DOJ's alleged failure to adhere to its own quality assurance standards. The board concluded that Soderlund's allegations did not have merit and that DOJ followed its lab policies and procedures and adhered to the board's accreditation requirements. The board indicated its investigation was closed.

¶ 10 Sometime after receiving the accreditation board's response, Soderlund sent to the Inter American Accreditation Corporation (IAAC) copies of the investigation requests he had previously submitted to the accreditation board, together with the board's responses. On January 19, 2010, the IAAC sent Soderlund a letter indicating his allegations had no relation to the performance of the accreditation board as an accrediting body and, thus, did not constitute a complaint against the board as an IAAC member.

¶ 11 Sometime during 2010, Soderlund initiated an administrative proceeding under Wisconsin's state employee whistleblower protection law before the Equal Rights Division of the Department of Workforce Development. On December 22, 2010, the Equal Rights Division dismissed Soderlund's administrative proceeding for failure to state a claim.

¶ 12 In January 2011, a new crime labs administrator was appointed. On February 21, Soderlund sent an investigation request to the new administrator, objecting to DOJ's handling of the two prior internal complaints he had filed in August 2006 and April 2009. Soderlund's request also alleged DOJ was not following its quality assurance standards for verification of fingerprints and had withheld information from the accreditation board. Soderlund additionally alleged "years of unfair treatment" by DOJ "unfairly questioning" his competence as a footwear examiner and "other unfair criticisms of his work." On March 1, 2011, the administrator responded that previous grievance procedures were followed and that the administrator considered the matter closed and did not anticipate any further action.

¶ 13 On August 17, 2011, Soderlund wrote back to the administrator and stated his previous grievance procedures had been derailed because DOJ had threatened him with discipline if he continued to pursue the matter. Soderlund requested an investigation of his allegations that DOJ was not adhering to quality assurance standards, with particular reference to his failure of footwear proficiency tests. On January 4, 2012, the administrator responded that Soderlund's issues had been concluded under a prior DOJ administration and that no further action was warranted. The administrator expressed an expectation that Soderlund would direct his energies to his work assignments and the future.

¶ 14 On February 13, 2012, Soderlund sent a letter to four accreditation board assessors who were scheduled to assess the Wausau crime lab in March 2012. The letter reiterated Soderlund's allegations that DOJ had not adhered to quality assurance standards and referred to the board's July 17, 2009 letter to Soderlund. Soderlund also sent copies of his letter to two state legislators.

¶ 15 On February 21, 2012, Zibolski—the deputy director of DOJ's Division of Law Enforcement Services—sent Soderlund a letter directing him to attend an investigatory meeting regarding possible violations of DOJ work rules. Soderlund appeared before Zibolski at the hearing and explained he believed he was ethically bound to raise the concerns presented in his February 13 letter. On February 27, Zibolski sent Soderlund a predisciplinary hearing letter, which indicated Soderlund had committed fifty-four violations of six DOJ work rules. The letter further indicated the March 2 hearing would permit Soderlund "an opportunity to provide new information and/or mitigating circumstances before" DOJ determined the appropriate discipline.

¶ 16 On February 28, 2012, believing he was about to be terminated and wishing to avoid the possibility of losing retirement benefits, Soderlund decided to retire and selected one of several resignation dates proposed by his supervisor. Soderlund attempted to rescind his resignation the following day, but his request was denied.

¶ 17 In August 2012, Soderlund, pro se, attempted to commence a lawsuit against Zibolski by submitting certain documents to the Marathon County Circuit Court, including Soderlund's February 13, 2012 letter, and Zibolski's February 27, 2012 letter. Since no case was properly commenced, Soderlund's documents were simply retained in a file. Soderlund, then represented by counsel, commenced the present action in December 2012. Zibolski subsequently moved for judgment on the pleadings. He argued: (1) Soderlund did not suffer any adverse action that would deter a person of ordinary firmness from engaging in free speech; (2) Zibolski was entitled to qualified immunity from all individual-capacity claims against him; and (3) Soderlund had failed to state an official-capacity claim against Zibolski.

¶ 18 The circuit court issued a partial decision, holding that Soderlund failed to state an official-capacity claim against Zibolski. However, it ordered supplemental briefing on two issues: whether any of Zibolski's conduct constituted an actionable threat of punishment for future speech; and whether Soderlund's speech was protected by the First Amendment under Garcetti v. Ceballos, 547 U.S. 410, 418–21, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). The parties filed their supplemental briefs in July...