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NO.                                              95-1592
STATE OF WISCONSIN                               IN COURT OF APPEALS
                                                 DISTRICT IV
RODNEY A. ARNESON,
PLAINTIFF-RESPONDENT,
V.
MARCIA JEZWINSKI, PERSONNEL COORDINATOR,
ADMINISTRATIVE DATA PROCESSING, UW-MADISON,
DURWOOD MEYER, ASSISTANT DIRECTOR,
ADMINISTRATIVE DATA PROCESSING, UW-MADISON AND
DAN THOFTNE, COMPUTER OPERATIONS MANAGER,
ADMINISTRATIVE DATA PROCESSING, UW-MADISON,
DEFENDANTS-APPELLANTS.
ERRATA SHEET
Marilyn L. Graves                                                               Peg Carlson
Clerk of Court of Appeals                                                       Chief Staff Attorney
P.O. Box 1688                                                                                                  119 Martin Luther King Blvd.
Madison, WI                                      53701-1688                     Madison, WI   53703
Court of Appeals District I                                                     Court of Appeals District II
                                                 633 W. Wisconsin Ave., #1400   2727 N. Grandview Blvd.
Milwaukee, WI                                    53203-1918                     Waukesha, WI                   53188-1672
Court of Appeals District III                                                   Court of Appeals District IV
740 Third Street                                                                                               119 Martin Luther King Blvd.
Wausau, WI                                       54403-5784                     Madison, WI   53703
Jennifer Krapf                                                                  Hon. Moria Krueger
Administrative Assistant                                                        Trial Court Judge
                                                 119 Martin Luther King Blvd.                                  Dane County, City-County Bldg
Madison, WI   53703                                                                                            210 Martin Luther King, Jr. Blvd.
Madison, WI   53709




NO.   95-1592
Judith  Coleman, Trial Court Clerk
TC# 93 CV 2985                                                                     Richard B. Moriarty
Dane County, City-County Bldg                                                      Assistant Attorney General
210 Martin Luther King, Jr. Blvd.                                                  P.O. Box 7857
Madison, WI   53709                                                                Madison, WI 53707-7857
Jacqueline R. Macaulay                                                             Gail M. Snowden
Macaulay Law Office                                                                Bascom Hall, Rm. 361
314 Shepard Terrace                                                                Madison, WI 53706
Madison, WI 53705
PLEASE TAKE NOTICE that the attached pages three through ten
are to be substituted for pages three through ten in the above-captioned opinion
which was released on February 26, 1998.
Dated this twenty-third day of April, 1998.
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NO.   95-1592
harassment complaint by a female subordinate employee.   After investigating the
complaint, the defendants found that Arneson had violated several university rules.
The defendants suspended him for thirty days without pay and transferred him
back to the highest nonsupervisory position that was then available.
Arneson appealed to the Wisconsin Personnel Commission, claiming
that  several  procedural  errors  had  marred  the  disciplinary  proceedings.    The
commission agreed, concluding that the university had failed to provide Arneson
with  an  adequate  hearing  prior  to  disciplining  him  and                                       “reject[ing]”  the
disciplinary  action.                                                                                For  some  reason,  however—defendants  surmise  the
commission lacked confidence in that ruling—the commission went on to consider
the merits of the discipline and concluded that the defendants had “just cause” to
discipline Arneson.1   Finally, noting that the position to which Arneson had been
“demoted”  was  in  a  lower  pay  range  than  the  position  he  held  prior  to  his
promotion to the supervisory post, and that the law entitled him to restoration to a
position  “in his previous  … classification, or one in the same pay range,” the
commission  awarded  him  back  pay                                                                  (with  interest)  and  attorney  fees—and
apparently restored him to the MIS 4 position to which he had been promoted—to
make him whole.2   Neither Arneson nor the defendants sought judicial review of
the commission’s decision.
1 Because the commission found that Arneson had violated only one rule of the several
violations charged by the university, it modified the thirty-day suspension to five days.
2 The commission decision gives no clear indication in which job Arneson was said to
possess due-process rights—his “promotional” position or his previous post.   Arneson maintains
that the decision effectively restored him to the MIS 4 position to which he had been promoted.
While restoration to either post does not affect our analysis in this case, we will assume Arneson
is correct in that he was restored to the MIS 4 postition, or its equivalent.
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NO.   95-1592
Arneson then brought this action against the defendants  “in their
individual capacity,” seeking money damages and other relief and claiming that
the defendants violated his due process rights by not providing him with a hearing
prior to disciplining him.   Defendants moved for summary judgment to dismiss the
action on qualified-immunity grounds, arguing that the hearing “rights” Arneson
claimed were not clearly established in the law.    The circuit court denied the
motion, concluding that the defendants were not entitled to qualified immunity
because decisions of the Wisconsin Personnel Commission provided notice that a
person in Arneson’s position was entitled to a predisciplinary hearing.   We agree
with the defendants that they are entitled to qualified immunity and therefore
reverse the circuit court’s order.
Whether qualified immunity applies in a given case is a question of
law, which we review independently.   Penterman v. Wisconsin Elec. Power Co.,
211 Wis.2d  458,  468,  565 N.W.2d  521,  528  (1997).    The rule protects public
officials and employees from  “harassing litigation” by rendering them immune
from  suit  in  the  performance  of  their  discretionary  functions  insofar  as  their
conduct does not violate the clearly established statutory or constitutional rights of
another person.   Barnhill, 166 Wis.2d at 406, 479 N.W.2d at 921.   Thus, whether
qualified  immunity  protects  a  public  employee  turns  on  the  objective  legal
reasonableness of the challenged action, assessed in light of the legal rules that
were clearly established at the time the action occurred.   If the law was not clearly
established, then the public employee cannot be held to know or anticipate that the
action was unlawful.   Id. at 407, 479 N.W.2d at 921.   As the supreme court stated:
The contours of the right must be sufficiently clear that a
reasonable official would understand that what he [or she]
is  doing violates  that  right.    This  is  not  to  say that  an
official action is protected by qualified immunity unless the
very action in question has previously been held unlawful;
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NO.   95-1592
but it is to say that in the light of pre-existing law the
unlawfulness must be apparent.
Id. at 408, 479 N.W.2d at 922 (quoting Anderson v. Creighton, 483 U.S. 635, 640
(1987)).    Stated another way, the right the public employee is alleged to have
violated must have been clearly established “in a … particularized, … relevant
sense.”    Anderson, 483 U.S. at 640.
Immunity is favored, “protect[ing] … all but the plainly incompetent
or those who knowingly violate the law,” so that  “if  [officials] of reasonable
competence  could  disagree  on  th[e]  issue,  immunity  should  be  recognized.”
Baxter v. DNR,  165 Wis.2d  298,  302,  477 N.W.2d  648,  650  (Ct. App.1991)
(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
And while qualified immunity is an affirmative defense, the plaintiff
has  the  burden  of                                                                     “demonstrat[ing]  by  closely  analogous  case  law  that  the
defendant has violated  [the plaintiff’s] clearly established constitutional right.”
Penterman, 211 Wis.2d at 469, 565 N.W.2d at 528.   The law must be “sufficiently
analogous to provide the public official with guidance as to the lawfulness of his
or her conduct.”   Barnhill, 166 Wis.2d at 408, 495 N.W.2d at 922.   Stated another
way, “The plaintiff’s claimed right must be sufficiently particularized to put the
defendants  on  notice  of  analogous  case  law  indicating  that  their  conduct  is
unlawful.”   Penterman, 211 Wis.2d at 470, 565 N.W.2d at 529 (quoted source and
internal quotation marks omitted).   A plaintiff who simply alleges a violation of a
right that may be clearly established in the constitution will not pierce a public
employee’s qualified immunity.                                                           “Instead, the test is whether the law was clear in
relation to the specific facts confronting the defendant[s] at the time of  [their]
action[s].”   Id. at 471, 565 N.W.2d at 529.
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NO.   95-1592
In this case, we must determine whether, in April 1990, according to
clearly  established  law,  a  reasonable  University  of  Wisconsin  administrative
supervisor  reasonably  could  have  believed  that  Arneson,  who  was  serving  a
probationary  term  in  a  supervisory  position  to  which  he  recently  had  been
promoted,  could,  for  disciplinary  reasons,  be  reassigned  to  a  lower  position
roughly equivalent to the one he had occupied prior to his promotion, without first
providing  him with  a  hearing.    This inquiry raises the  more  narrow  issue  of
whether, at the time of Arneson’s disciplinary transfer, either Wisconsin law or
federal law clearly granted him an established  “property interest” either in the
position he then occupied or in his former position, which would warrant the
conclusion that the defendants did not enjoy qualified immunity from his lawsuit.
As indicated above, we conclude that it did not.
Prior to 1990, courts had recognized that government employment
may include property rights that afford the employee some type of hearing, or
“opportunity to respond,” prior to termination of the employment.   Cleveland Bd.
of Educ. v. Loudermill, 470 U.S. 532, 538, 547 (1985).   The Supreme Court also
observed  in  Loudermill  that  such  property  interests  are  created  not  by  the
Constitution but rather by “independent source[s] such as state law.”   Id. at 538
(quoted source and internal quotation marks omitted).   Thus, where states have
conferred such a right in employment, they “may not constitutionally authorize the
deprivation of such an interest … without appropriate procedural safeguards.”   Id.
at 541 (quoted source and internal quotation marks omitted).   States, of course,
also  have  the  right  to                                                               “elect  not  to  confer  a  property  interest  in  public
employment,” thus precluding a due process challenge.   Id. (quoted source and
internal quotation marks omitted).
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NO.   95-1592
In Wisconsin, a state civil servant has no property interest in his or
her employment unless statutes or provisions of the administrative code provide
specific job protections.   In the absence of such protections, the employee may be
fired at will.   See, e.g., Castelaz v. City of Milwaukee, 94 Wis.2d 513, 520-23, 289
N.W.2d 259, 262-63 (1980), overruled on other grounds, Casteel v. Vaade, 167
Wis.2d 1, 21 n.18, 481 N.W.2d 476, 484 (1992) (civil service employee has only
such procedural rights created by state or municipal law);   Board of Regents v.
Wisconsin Personnel Comm’n, 103 Wis.2d 545, 553, 309 N.W.2d 366, 370 (Ct.
App.  1981)  (state  employees  without  prior  permanent  status  are                  “subject  to
dismissal  … at any time”).    The Wisconsin Legislature has, however, given a
property interest to those employees who have gained “permanent status in class”
in a particular position—that is, they have successfully completed the probationary
period required for all state civil-service positions.   See WIS. ADM. CODE § ER-
MRS 1.02(23).   Section  230.34(1)(a), STATS., states that such permanent-status
employees may not be fired, suspended without pay or demoted except for “just
cause.”
As indicated, although Arneson had gained permanent status in class
in his nonsupervisory position, he was still serving a probationary period in the
supervisory  position  to  which  he  had  recently  been  promoted  when  the
disciplinary proceedings were begun, and thus, under § 230.28(1)(a), STATS., he
could be “[d]ismiss[ed] … at any time” during that period.3
Arneson’s position is unclear.   Regardless of whether he is arguing
that the source of his clearly established property right is in his MIS 4 position or
3 Section 230.28(1)(a) and (am), STATS., provides that “promotional appointments” to
supervisory positions “shall be for a probationary period” of one year.
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NO.   95-1592
is in his former MIS 3 position (to the extent that he could not be demoted to a
lower position), we disagree with him.
We see little question that § 230.28(1)(a), STATS., bars any claim
that  Arneson  had  a  property  right  in  the  MIS                                    4  position.    Arneson  claims,
however, that because he had permanent status in class in his former position, he
had a property right that somehow carried over to the new supervisory post.   As a
result, he maintains that, despite his probationary status in the “new” position, the
defendants could not suspend him without pay or demote him to a position below
his previous position “without just cause.”   And he contends that such a property
right is so clearly established in the law that the defendants’ qualified immunity
defense must fail.   He rests the argument largely on § 230.28(1)(d), which states
that a “promotion or other change in job status within an agency shall not affect
the permanent status in class and rights previously acquired by an employee within
such agency.”
We are unsure precisely what rights Arneson claims § 230.28(1)(d),
STATS., grants him.   Again, to the extent he argues that the statute gives him a
property interest in the MIS 4 position, its terms conflict with the plain language
of  §  230.28(1)(a) and  (am), STATS., which provides that  “[a]ll original and all
promotional appointments to permanent … positions” are subject to a one-year
probationary  period  during  which,  as  indicated  above,  the  employee  can  be
suspended, fired or demoted at the will of the employing agency.                        (Emphasis
added.)    If Arneson is arguing that the defendants could not demote him to a
position paying less than his MIS 3 position, we note that the commission reduced
his suspension from thirty to five days and restored him to the MIS 4 position.
This result was, as indicated, more than equivalent to his “former position or a
similar position within the department.”   See DHSS v. State Personnel Bd., 84
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NO.   95-1592
Wis.2d  675,  681,  267 N.W.2d  644,  647  (1978)  (employee promoted  “within a
department” and then demoted may retain permanent-status rights in the former
position entitling him or her to reinstatement to the “former position or a similar
position within that department”).
Arneson also refers us to prior personnel commission cases which he
claims support his argument that he has a “clearly established” property interest in
his  position.                                                                             We  question  whether  isolated  state  administrative  decisions
constitute adequate indicia of clearly established Wisconsin law, but regardless,
the  ones  he  cites  are  largely  inapposite.     One,  Letzing  v.  Department  of
Development, No. 88-0036-PC (Jan. 25, 1989), involved a civil service employee
who was disciplined with a ten-day suspension without an adequate presuspension
hearing.    While  the  commission  recognized  that  the  suspension  deprived  the
employee  of  a  property  right,  the  employee  was  not  on  probation  but  had
permanent status and thus a right not to be suspended without just cause under
§ 230.34(1)(a), STATS.   Arneson, who was suspended during probation, lacks any
such statutory entitlement.    Arneson also quotes from Jensen v. University of
Wis., No.  88-0077-PC  (Dec.  14,  1988), where the commission stated that  “an
employe[e]  who  is  removed  from  his/her  position  during  a  promotional
probationary period and who is not restored to [his or her] ‘former position or a
similar position … shall be subject to s. 230.44(1)(c), Stats.’”   Id. at 4.   Arneson
describes                                                                                  §                                                                   230.44(1)   (c)  generally  as   “a  provision  for  pre-disciplinary  due
process.”    That  is  an  overstatement.    This  statute  deals  with  procedures  for
appealing personnel actions to the commission, and § 230.44(1)(c) simply states
that  “[i]f an employe[e] has permanent status in class  …. the employe[e] may
appeal a demotion, layoff, suspension, discharge or reduction in base pay to the
commission, if the appeal alleges that the decision was not based on just cause.”
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NO.   95-1592
We do not see how a provision giving employees with permanent status in class—
and which has nothing to say about demotions—aids his argument that he has a
clear legal right to a hearing prior to any suspension or demotion.4   And we note
again that, as a result of the commission’s action, Arneson was essentially “made
whole” when he was restored to his MIS 4 position.
Finally, citing Loudermill,  470 U.S.  532, Arneson argues that the
law is clearly established in the federal courts that he has a property interest in his
position  that  is  subject  to  due-process  protections  in  case  of  suspension  or
demotion.    But the Ohio employee in Loudermill had a statutory right to be
dismissed only for  “misfeasance, malfeasance, or nonfeasance in office,” id. at
538-39—just as a Wisconsin state employee with permanent status in a position
has a statutory right not to be fired, suspended or demoted without just cause.
Arneson is correct that a Wisconsin employee with permanent status in class has a
property right in the position—as did the employee in Loudermill—which may be
abridged  only pursuant to  “constitutionally adequate”  procedures.    Hanson v.
Madison Serv. Corp.,  150 Wis.2d  828,  835,  443 N.W.2d  315,  317  (Ct. App.
1989).   As we have stressed throughout this opinion, Arneson was on probation in
his MIS 4 position at the time he was disciplined, and was, in essence, restored to
that  position  by  the  commission’s  ruling.    Beyond  that,  the  Supreme  Court
recently recognized that it has not yet “had [the] occasion to decide” whether even
tenured
4 Arneson also refers us to WIS. ADM. CODE  § ER-MRS 14.03, which states that an
employee who has been promoted may be removed from the new position “without the right of
appeal” and shall then be restored to his or her “former position or a similar position and former
rate of pay” and that  “[a]ny other removal, suspension without pay, or discharge during the
probationary period shall be subject to s. 230.44(1)(c), Stats.”   Here, too, the reference is to
§ 230.44(1)(c),  which,  as  we  have  just  indicated,  provides  only  for  appeal  procedures  in
disciplinary matters involving employees with permanent status in class.   We do not see how
either § ER-MRS 14.03 or § 230.44(1)(c) aids Arneson’s cause.
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NO.   95-1592
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