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Bethards v. State, Department of Workforce Development

Court of Appeals of Wisconsin, District III

May 2, 2017

Daniel D. Bethards, Petitioner-Respondent,
State of Wisconsin Department of Workforce Development, Equal Rights Division and State of Wisconsin Department of Justice, Respondents-Appellants.

         APPEAL from an order of the circuit court Nos. 2015CV15 2015CV16 2015CV17 for Douglas County: GEORGE L. GLONEK, Judge. Reversed.

          Before Stark, P.J., Hruz and Seidl, JJ.

          HRUZ, J.

         ¶1 The issue presented in this WIS. STAT. ch. 227 (2013-14)[1]review is whether the Wisconsin Department of Workforce Development's Equal Rights Division ("ERD") erred when it concluded a former state employee failed to comply with the Whistleblower Protection Law, WIS. STAT. §§ 230.80-230.89. Specifically, the employee challenges as unreasonable the ERD's interpretation of the term "supervisor" in § 230.81(1) as including only those individuals within an employee's supervisory chain of command. He also argues his agency's human resources director was one of his "supervisors, " or at a minimum this is a factual issue warranting an evidentiary hearing.

         ¶2 Applying due weight deference to the ERD's interpretation of WIS. STAT. § 230.81(1), we conclude the employee's interpretation of that statute is not more reasonable than the ERD's. We also conclude the ERD could reasonably determine, based on the undisputed evidence before it, that the agency's human resources director was not a "supervisor" of the employee. We therefore reverse the circuit court's determination to the contrary and uphold the ERD's decision.


         ¶3 Daniel Bethards was employed as a Wisconsin Department of Justice ("DOJ") special agent in its Division of Criminal Investigation ("DO") between October 10, 1999, and October 10, 2013. The DCI's mission and functions are solely directed toward criminal investigations, and its staff includes special agents who are sworn law enforcement officers possessing statewide jurisdiction. The DOJ asserts there is a chain of command within the DCI "typical [of] paramilitary police organizations." The DCI is headed by the DCI Administrator, who reports directly to the Deputy Attorney General. David Matthews was the DCI Administrator at all times relevant to this appeal.

         ¶4 The DCI's second-in-command is a Deputy Administrator, who is in charge of the DCI's Eastern and Western regions. Each region is headed by a Director of Operations, who reports directly to the Deputy Administrator. DCI field offices are located in major cities throughout the state. Each field office is headed by a Special Agent in Charge ("SAC"), who reports directly to the regional Director of Operations. Special agents, such as Bethards, are assigned work out of the various field offices, and they report directly to the applicable SAC.

         ¶5 In 2012, Bethards came to believe that his SAC, Jay Smith, was violating state and federal firearms laws. Bethards took medical leave for an unspecified reason in October 2012, which Bethards later claimed was due to stress caused by his having knowledge of Smith's violations. Bethards sought advice regarding his medical leave from DOJ Human Resources Director Mary Casey on December 17, 2012. He indicated in his email that Smith had requested his return to work and that Bethards believed Smith was attempting to terminate Bethards' employment with the DOJ.[2]

         ¶6 On December 19, 2012, at 11:57 a.m., Bethards sent an email to both DCI Administrator Matthews and Human Resources Director Casey with the subject line, "Official notification to DOJ." Attached to the email was a three-page document in which Bethards described his knowledge of Smith's alleged violations of state and federal firearms laws. Matthews replied to Bethards at 12:10 p.m., acknowledging receipt of the email. Casey acknowledged the same shortly thereafter.

         ¶7 Based on events that followed his December 19, 2012 disclosure, Bethards filed three retaliation complaints, on various dates, with the ERD.[3] Bethards filed ERD Case No. CR201300903 on April 11, 2013, alleging that, as a result of his disclosures regarding Smith (and precipitated by a "goodbye" email Bethards had sent coworkers regarding the situation and his perception that he was about to be terminated), Smith had told the heads of local law enforcement that Bethards was suicidal. In addition, the DOJ revoked Bethards' law enforcement credentials, service weapons and laptop, and restricted his access to his office and the DOJ computer system. Smith's and the DOJ's actions formed the bases for Bethards' first complaint.

         ¶8 Bethards underwent a "fitness for duty" evaluation on May 27, 2013. On June 3, 2013, Matthews notified Bethards that he had passed the evaluation and would be reinstated from his October 2012 medical leave effective June 1, 2013. However, Matthews stated Bethards would be placed on paid administrative leave as of June 2, "while the department conducts an internal review of possible DOJ work rule and DCI policy violations." Bethards eventually filed ERD Case No. CR201302058 on July 27, 2013, alleging that he was placed on administrative leave in retaliation for his December 19, 2012 disclosure regarding Smith.

         ¶9 Bethards was terminated from his employment by Deputy Attorney General Kevin St. John on October 10, 2013. Following its internal investigation, the DOJ had concluded Bethards violated work rules and policies pertaining to untruthfulness, discourtesy, inappropriate use of state resources, improper disclosure of confidential information, and insubordination. The DOJ determined, among other things, that Bethards' allegations regarding Smith's conduct-as well as his subsequent allegations about DOJ favoritism and a conspiracy-were "baseless, dishonest, and in violation of numerous DOJ rules and policies."[4] On October 14, 2013, Bethards filed ERD Case No. CR201303023, asserting his termination was a direct result of his disclosure on December 19, 2012, of Smith's alleged violations of state and federal law.

         ¶10 The ERD found probable cause to believe the DOJ violated the Whistleblower Protection Law-specifically, WIS. STAT. § 230.83-by placing Bethards on administrative leave in June 2013 and by terminating his employment in October 2013. These actions were the bases for Bethards' second and third complaints. The ERD made a "no probable cause" finding with respect to Bethards' first complaint. The ERD investigator accepted the DOJ's claim that it had revoked Bethards' credentials and equipment and had restricted his access to DOJ property not because of his December 19, 2012 disclosure, but because of his subsequent "opinionated and accusatory emails to DOJ employees." Bethards requested an administrative hearing on the ERD's "no probable cause" finding. All three cases were set for a hearing before an administrative law judge (ALJ).

         ¶11 The DOJ filed a motion to dismiss the complaints, and the three cases were consolidated for the purpose of deciding the motion. Among other things, the DOJ argued that Bethards' December 19, 2012 disclosure of Smith's alleged violations failed to comply with Wis.Stat. § 230.81(1)(a), in that Bethards had not notified a "supervisor" before making the disclosure to anyone else. The DOJ asserted that by emailing a person within his chain of command (DCI Administrator Matthews) at the same time he emailed a person in another department (Human Resources Director Casey), Bethards was not protected from retaliatory employment actions, even assuming such retaliation occurred.

         ¶12 Bethards responded by emphasizing that Matthews had acknowledged receipt of his December 19, 2012 email before Casey had done so. He also asserted Casey was effectively his supervisor because she was "in a position of authority, command, and supervision over DOJ agents." Bethards' brief relied on what he perceived as the general purposes of a human resources department:

Employees understand that human resources departments do have disciplinary authority over them, but they are viewed routinely, and by design[, ] … as somewhat independent, stand-alone divisions of particular agencies which are meant to look out for the protection of the employee.
Despite human resources departments here and everywhere attempting to make the employee comfortable with going to human resources for support and assistance, the State now wants to play a game of "gotcha", because an employee took them up on what is and always has been an open invitation to feel comfortable going to Human Resources with such reports.

         Despite Bethards' claim that he believed Casey was a "supervisor" under WIS. STAT. § 230.81(1), the only affidavit he submitted with his brief was from his attorney.[5]

         ¶13 The DOJ's reply brief pointed out this lack of evidence supporting Bethards' position. The DOJ also submitted its own affidavits. The first, from Division of Management Services ("DMS") Administrator Bonnie Cyganek, stated the DOJ's human resources department was organized under the DMS. According to Cyganek, the DMS provides "operational support to the DOJ, " including by preparing budgets, managing personnel, and providing information technology services. Cyganek averred that Casey was not within Bethards' supervisory chain of command and "no DOJ employee within the DMS has supervised any DOJ employee within any other division." The second affidavit, from DCI Administrator Matthews, described the chain of command within the DCI. See supra ¶¶3-4. In all, the DOJ reaffirmed its position that, because Bethards simultaneously disclosed information to a supervisor and to a non-supervisor, he was not entitled to whistleblower protection and his complaints should be dismissed.

         ¶14 The ALJ agreed with the DOJ. The ALJ acknowledged Bethards' contention that Casey was one of his supervisors, but it concluded the "information presented by the parties in relation to the motion to dismiss does not support that to be the case." As a result, the ALJ determined Bethards was not entitled to whistleblower protection given his simultaneous disclosure to someone outside his supervisory chain of command. The ALJ noted the tension between this result and Wisconsin's stated policy of protecting whistleblowers. However, the ALJ remarked it was obligated to apply the Whistleblower Protection Law as written.

         ¶15 Bethards filed separate petitions for judicial review in each case under Wis. STAT. ch. 227. His petitions were consolidated, and the DOJ filed a notice of appearance on the ERD's behalf[6] The circuit court found the matter to be one of first impression for the ERD and applied a de novo standard of review, under which it found the ALJ's determination to be inconsistent with the legislature's stated policy of protecting whistleblowers from retaliation. Relying on the definition of "supervisor" contained in Subchapter V of WIS. STAT. ch. Ill, [7] the court accepted Bethards' argument that Casey was his "supervisor" and deemed it "axiomatic that HR departments in all manner of work environments are responsible for hiring, firing, discipline, benefits management, payroll, promulgating workplace rules, training employees, and other like tasks." The State now appeals the circuit court's order setting aside the ERD's decision.


         ¶16 In an administrative appeal under Wis.Stat. ch. 227, we review the agency's decision, not the circuit court's. Adams v. State Livestock Facilities Siting Review Bd., 2012 WI 85, ¶24, 342 Wis.2d 444, 820 N.W.2d 404. Because this case was decided without a hearing, this court "shall set aside, modify or order agency action if the facts compel a particular action as a matter of law, or it may remand the case to the agency for further examination and action within the agency's responsibility." Wis.Stat. ยง 227.57(7). In addition, we "shall set aside or modify the agency action if [we] find[] that the agency has erroneously interpreted a provision of law and a correct interpretation compels a particular action, " or we may articulate the correct interpretation and remand to the agency for further action under that interpretation. Sec. 227.57(5). In all events, the ...

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