Hanson v. Madison Service Corp.

HANSON, A. Plaintiff-Appellant, Dean CORPORATION, MADISON SERVICE Defendant- Respondent. Appeals

Court of Argued May 11, No. 88-0252. November 1988. Decided 1989.

(Also 315.) reported in 443 N.W.2d plaintiff-appellant by For the there were briefs Rosemary Gingras, Fox, Fox, J. S.C., Fox and & Schaefer argument by Rosemary Madison, and oral J. Fox. defendant-respondent by

For the there was a brief Herrick, James C. Michael J. Westcott and Edith F. AxleyBrynelson, argu- Merila, Madison, and and oral by ment Michael J. Westcott. Sundby, Gartzke, P.J.,

Before Eich and JJ. employment EICH, J. This is an termination case employee, in which the Hanson, Dean A. a Madison bus driver, claims that he was denied due of law employer, because of the failure of his Madison Service (MSC), Corporation provide him with constitution- ally required pre- post-termination hearings. Han- appeals overturning jury son from an verdict, order adequate which found that he had not received an pretermination hearing, refusing to reconsider an ruling post-termination procedures pro- earlier that the by constitutionally adequate. vided MSC were agree ruling We with the trial court's that Hanson adequate post-termination process, received and we also agree, parties concede, and the that the trial court's rea- granting judgment notwithstanding jury's sons for intervening verdict have been nullified United Supreme States Court decision.1 We therefore reverse 1 The jury single question case went to the on the of whether verdict, insofar it the jury's order as overturned grant insofar as it declined Hanson's motion for sum- mary judgment pretermina- on the issue of denial of his process rights. tion due We also conclude that he enti- adequate pretermination had Hanson received and the however, jury court, granted that he not. found had The trial judgment notwithstanding MSC's motion for the verdict on grounds 893.80(l)(a), comply Hanson failed to with had sec. Stats., prohibits against government which actions bodies or plaintiff officers unless the files a notice of his or her with claim appropriate agency days giving within 120 of the event rise to Casey, on Felder 614, v. the claim. The court relied 139 Wis. 2d 630, 19, (1987), N.W.2d 408 26 a case which the Wisconsin Supreme compliance Court had held that with sec. 893.80 was necessary bring alleging order to a suit a claim in federal-law state court. ruling, Supreme

After the trial court's the United States Felder, holding required, Court reversed that no such notice was nullifying Felder and thus the basis the trial court's decision. Casey, —, (1988). argues L. U.S. Ed. 2d 123 MSC grounds judgment should nonetheless affirm the court's on that, law, summary judgment as a matter of it was entitled to proceed erred court when it denied that earlier in motion ings. While Hanson contends that has issue MSC waived the failing cross-appeal file from the denial of its motion for summary judgment, we do not believe it should to have be held judgment overturning jury's done The trial so. court's verdict judgment supported by controlling was a in MSC's favor and was case Wisconsin law at the time. MSC thus had no reason cross- appeal summary motion, judgment from the denial of its earlier that, and we are satisfied under the somewhat circum unusual case, issue, stances this it should be allowed to be heard on the argued by See thoroughly parties. which has been briefed and City Cedarburg, 22, Weber v. 5, 125 Wis. 2d 30 n. N.W.2d (Ct. aff'd, 1985), App. 2d 129 Wis. 384 N.W.2d 333 (1986) which, (cross-appeal unnecessary if to raise error cor rected, from). judgment appealed would sustain only damages tied to nominal not to exceed one dollar for purpose. the denial and remand to the trial court for this Finally, any because Hanson has waived claims com- for by pensatory damages failing request or actual their verdict, in the inclusion affirm the order all other respects. simply procedural stated,

While the facts are history complex. case is more Hanson was termi- employment company MSC, nated from his operating after system City Madison, the bus in the of deter- "chargeable" mined that he had been involved five period accidents within a four-month in late 1978. company's policy discipline" Under the "cumulative of accidents, for in traffic drivers involved successive acci- punished by increasing periods suspension, dents are of subjects discharge. and the fifth accident a driver to All city accidents which bus drivers are involved are reported by reviewed "Accident Review by bargaining agree- Board" established the collective ment between MSC and the drivers' union. The board is comprised representatives drivers, of two two of MSC management, police officer; and a Madison and it is the given board's function determine whether a accident "chargeable" against disciplinary should be the driver purposes. grievance protesting discharge,

Hanson filed a investigating matter, which MSC denied. After Han- grievance son's union determined that his lacked suffi- cient merit to take to arbitration. Hanson then sued claiming discharged union, MSC and the that MSC had process rights him in violation of his due and that the duty representation by union had breached its fair failing to take his to arbitration. trial granted judgment plead- court MSC's motion for on the ings, concluding that both causes action were barred apparently agree- Hanson, statute limitations. ing part voluntarily decision, with that dismissed his against appealed claim the union and the trial court's judgment against insofar as it held that his action MSC untimely. holding three-year, reversed, was We that a one-year, applied not a statute of limitations to his against company, claims and we remanded the case proceedings. to the trial court for further Hanson v. Corp., Madison Service 125 Wis. 2d 370 N.W.2d (Ct. 1985). App. parties summary judgment. Both then moved for judgment Hanson's motion claimed that should be confirming process entered his favor the due viola- tions, and MSC's motion contended that Hanson's action should be dismissed because he had received all of process granted the that was due him. The court MSC's respect post-termination procedures, motion with holding to the constitutionally that Hanson had received ade- quate post-termination process; par- and it denied both respect pretermination proce- ties' motions with to the required dures because it believed that issue resolution by jury. jury eventually indicated, As the found that pretermination procedures constitutionally the were inadequate and the trial court overturned that verdict on grounds supreme which have since been vitiated the continuity court decision. For reasons of and ease of exposition, post-termination we consider the issue first.

I. POST-TERMINATION PROCESS rights employee only The of cause, an terminable property rights was, as Hanson are considered which may only abridged pursuant procedures be to that are "constitutionally adequate" under the due clause of the United States Constitution. Cleveland Bd. of

835 (1985). 532, Loudermill, U.S. This v. Educ. employee an notice and is entitled to means opportunity prior his or termination of to to be heard pro- post-termination employment, to her challenge provide opportunity to which an cedures discharge. Id. at 546-48. merits of City Madison, 106, 2d In Eastman 117Wis. of (Ct. 1983), provisions App. noted that N.W.2d bargaining agreements providing for arbitra- collective grievances adequate have been held tion process requirements: satisfy due provisions collec- grievance-arbitration of [the] with bargaining [appellants] furnished agreement tive hearing in adequate opportunity obtain a fair arbitrary deprivation allegedly which contest [they deprived job, and therefore were] [their] due liberty-property interest violation of of a process. quoting 768, v. United Id. at 342 N.W.2d at Tufts (N.D. Supp. Service, Postal 431 F. Ohio

States 1976) (other original). bracketing omitted; citations case, ruled Hanson In the trial court was this post-termination pro- constitutionally adequate afforded grievance/arbitration provisions through cess bargaining agreement, does and Hanson not collective challenge argues, procedures. adequacy those He

the however, take his dis- that because the union refused to oppor- grievance charge arbitration, to he the never had tunity remedy and, result, as a to avail himself of that effectively right to due denied. his was representative" bargaining A union is the "exclusive grievance procedure members the is for its and because process," part integral bargaining of the collective "an 836 agency respect the union's exclusive continues with to procedures designed the to enforce the collective bar- gaining agreement grievance provi- and arbitration —the Service, v. sions. Malone United States Postal 526 F.2d (6th 1975). 1099, result, Cir. As a it been has held employee right compel that an does not have the to employer adjust or her grievance meet to with him or her to a bargaining agree-

where, here, as the collective gives grievance ment ery. the union the control over machin- situation, In Id. at 1107. such a the must rely on the union to exhaust his her or contractual reme- dies. Id. employees' representa- union,

The as the exclusive represent employees fairly tive, "must, course, all and good Service, faith." Winston United States Postal (7th 1978). 585 F.2d Cir. has union obligation "to serve the all interests of members without hostility . . [and] or discrimination . to exercise its dis- complete good honesty, cretion with faith and to arbitrary Sipes, avoid conduct." Vaca v. U.S. (1967). duty representation, may It is a of fair which pursue if be breached union's decision arbitra- grievance given arbitrarily tion of a case made or Id. bad faith. at 193. employees Winston, In fired had the under bargaining agreement grieve their collective their ter- request, At minations. their union advanced their grievances through process. case, In Winston's how- ever, the union declined to take an adverse decision on to arbitration and he claimed this violated process rights. disagreed his due The court held that procedures constitutionally adequate, noting were "[A]ppellants through oppor- that: tunity their [union], had request grievances. arbitration their requests Although their to union] demand [the declined appellants arbitration, have the Union for could sued duty fairly represent if to them the refusal its breach good Id., faith." 585 was not demand arbitration to omitted). (citations at and footnotes F.2d 210 appears, then, union's It that Hanson's claim the against the to his to arbitration failure take initially joined Union, Indeed, Hanson the MSC. not by failing pro- grounds that, on to union the lawsuit duty representa- grievance, its of fair it breached cess maintained, The not be how- tion. cause of action could applicable ever, limitations had because the statute of run. argues union not

Hanson that the should be allowed "bargain away" or an individual member's to "waive" though rights, even the constitutional and that failure hearing the was the result of the union's take case action, MSC's, he should be allowed to nonetheless cases, v. He relies two Clark sue MSC for that failure. on Corp., 2d Hein-Werner 8 Wis. N.W.2d (1959), (1960), Laffey denied, and U.S. 962 cert. 1976), (D.C. Airlines, Inc., F.2d 429 Cir. Northwest (1978), support denied, cert. 434 U.S. 1086 opinion, compels argument. In our neither case result he seeks. supervisory Clark,

In the issue was whether certain enjoin employees enforcement of an had employees' union arbitration award obtained group proceedings on of other workers. behalf of a supervisory employees' seniority, award affected directly question their interests were there was no employees other the union adverse to interests of the represented proceedings. had in the The trial arbitration injunction supreme court court issued the grounds on union had breached affirmed that the representation duty supervisory of fair it owed to the employees by failing give opportu- to them notice and an nity participate proceedings. to the arbitration In this case, Hanson offered no evidence and advanced no claim duty fairly represent that the Union its to breached him. Beyond says nothing employee's that, Clark an about ability employer damages to sue the claimed have to resulted from union's to a failure take to employees sought only arbitration. The enjoin in Clark against enforcement of an arbitration award them. Laffey, points single

As for Hanson to a sentence forty-one page opinion stating "Rights the court's that: Pay Equal under established Title VII Act2 are rights bargained away by 'not which can be a —either by employer, acting union, an or both on concert." (footnote omitted). Id., 567 F.2d at 447 He does not explain Laffey reasoning, otherwise how or court's applies decision, even its case, to the facts of this and we type undeveloped argument gener- see this as the of ally Balkus, will not address. In Matter Estate of of (Ct. App. 246, Wis. 2d 255 n. 381 N.W.2d 1985).3 (of 1964) Rights Title VII the Federal Civil Act of and the

Equal Pay (adopted Act an as amendment to the Fair Labor 1938) prohibit generally discriminatory Standards Act of sex practices employment. so, Even reading Laffey our satisfies that us it does not case, represented control issues before In us. the union pursers pay both airline negotiations, stewardesses and and the representation issue was whether the union's of the stewardesses precluded bringing separate against them from action employer Equal Pay under the Act. The court allowed the action ruling on based its together the airline and the union had properly relied on Win- trial court We believe the holding grievance/arbitra- that the Malone in ston and bargaining agreement provisions of collective tion provided constitutionally adequate post-termination process. the effect a union's cases dealt with Both employee's grievance com- decision not adequacy recognize pletion, the constitutional and both representation" against employee's remedies "fair persuaded Hanson has union in such situations. the contrary Laffey result. or dictate that Clark us II. PRETERMINATION PROCESS summary judgment grounds on that MSC moved policy discipline" afforded Hanson ade- its "cumulative quate pretermination argues and it that the due granted motion a matter court should have as trial procedures in of We follow well-established review- law. summary judgment. grants ing We first or denials of complaint states a cause of action whether the consider joins so, and, We then if the answer the issue. whether moving party's to ascertain affidavits look to they prima case for relief—or state a whether facie party moving defendant, here, where, is the as they prima so, If we whether state a defense. facie any opposing see affidavits to whether examine the they inquiry dispute. are, If our ends facts are material dispute If no must be there is and the motion denied. warrants, fact, and if the record otherwise we material proceed presented legal consider the issues provi negotiated a violated the sex discrimination contract Pay present Equal here. Act. No such situation sions Plat, motion. See In re Cherokee Park 113 Wis. 2d (Ct. 1983). App. 115-16, 334 N.W.2d 582-83 adequate post-termi- said, As have addition to process, "hearing" nation Hanson had the to a prior discharge. Loudermill, to his 470 U.S. at 542. Han- complaint against alleges son's MSC that he was denied opportunity discharge to be on heard both before occurred, and after it and this states a cause of action for process. allegations denial of due MSC's answer contains join support and denials which In issues.. of its summary judgment dismissing motion for Hanson's Ray, claims, MSC filed the affidavit of William its trans- portation together copies director, with of the collective bargaining agreement, reports that were filed with respect the accident board with to Hanson's several acci- informing dents, letters him of the various sus- pensions and his ultimate termination.

Ray's suspension affidavit outlines MSC's accident policies increasing periods and termination of sus- —the pension discharge for successive accidents and after the "chargeable" fifth accident. He states that an accident review board was established under the collective bar- gaining agreement investigate accidents, to all drivers' grading "chargeable," "preventable," them as or "non- chargeable." monthly The board meets of and notices its meetings posted are in various areas of MSC's offices "frequented by Corpora- which are in bus drivers the employ." bargaining agreement pro- tion's The collective all vides that determinations of the accident review disciplinary against board all and actions drivers based grievance subject on the board's determinations are to and arbitration.

Ray's affidavit also each of describes Hanson's five September day job, 1,1978, On accidents. his first on the he was in involved two accidents and a third on prepared reports outlining his Hanson 14. November and in each instance filed them of occurred what version met review board and consid- MSC. The accident with chargeable ruling accident, all to were each ered writing Hanson, the board's he was notified and one-day imposed suspension a time. MSC decision each three-day suspension a accident and the after second grievance file a or other- the third. Hanson did after findings respect any challenge board's with to the wise imposition company's suspen- accidents or the 4, 1978, he involved a fourth On December was sions. accident, slightly later, than two weeks on and more Reports again filed, were Han- a fifth. and December by fifth was letter that the accident son was notified by days investigation review Several board. under January 11, later, 1979, Hanson informed that on was that the fourth and fifth acci- board had determined being chargeable him that he was were to dents discharged company employment from with of the five accidents. because Ray's According affidavit, then to Hanson filed meetings rep- grievance participated several with and MSC in which the circum- resentatives of union discharge After these stances of his were discussed. meetings, MSC reaffirmed its decision terminate employment. investigation, After the union Hanson's any pursue further Han- decided not to on proceeded behalf, matter never son's and thus the arbitration. supporting materials indicate affidavits and suspension general

that Hanson had both notice of MSC procedures con- and termination and actual notice board, as of his the review as well sideration accidents opportunity challenge board's notice and the review respect It also determinations with to each accident. discharge, that, indicates after the he had several meet- ings management regarding with MSC the merits of the company's action, and MSC had established procedures agreement. and arbitration in the collective adequate require- We consider these facts to meet the support summary judg- ment that the affidavit of the prima ment motion state a defense to Hanson's due facie process claims. sought summary judgment Hanson's motion con firming liability discharging MSC's him in violation rights. of his constitutional Because a motion for sum mary judgment explicit "carries with it the assertion undisputed that the movant is satisfied that the facts are judgment [or that on those facts he she] is entitled to practical as a matter of . . law . 'the effect of . . . bilat summary judgment equivalent eral [is] motions of a " stipulation as to the facts.' Powalka v. State Mut. Life Co., 513, 518, 192 Assurance 852, 53 Wis. 2d N.W.2d (1972), quoting Wiegand Gissal, 28 Wis. 2d (1965).Despite 495a-95b, rule, 138N.W.2d considering court, the trial the factual record to be "inadequate," denied both MSC's and Hanson's motions reaching many legal without the merits of issues result, have, own, raised. As on our examined both proofs sets of affidavits and to determine whether there dispute prevent is a material of fact which would consid- parties' eration of the merits of the claims. support excerpts

In motion, of his Hanson filed depositions. first, from several that of union steward Gowey, simply acknowledges specifics Gene that the suspension policy the "five-accident" and termination bargaining agreement. were not set forth the collective Excerpts deposition from Hanson's own describe his ver- post- sion of the accidents and corroborate at least one meeting involving company termination himself and representatives, words, which, in Hanson's after union "dropfped]" grievance. union his excerpts from a Hanson's affidavit also contains Ray Ray deposition he of William which stated that to Hanson after the not recall whether he talked could prior to the letter of termination. He fifth accident and "hearing" prior that there was no formal also indicated discharge although Hanson, and he the decision to it normal for him to discuss such a stated would be driver, the affected he could not recall matter with he such a discussion with Hanson. He also whether acknowledged had given

that no written notice was to Han- (Ray) son that he cussing and other MSC executives were dis- receiving report discharge after of the following review committee Hanson's fifth accident. dispute We see no material of fact the various deposition excerpts by parties filed affidavits and connection with the motions. And where there is no dispute appears party fact, and where it that a is judgment applicable law, entitled to as a matter of rules 802.08(2), judgment granted. Sec. state that "shall" be legal We thus turn to the issue: whether Hanson Stats. constitutionally adequate pretermination was afforded process. governed Loudermill,

The issue is where the process requires employee held that due that an court (as was) dischargeable only for cause Hanson must be given opportunity hearing," for "some kind of a employment Id., his or her before terminated. 470 U.S. requirements process, at 542. To meet the of due type pretermination "hearing" employee afforded the requirements elaborate"; "need not be the "essential . . . opportunity respond." are notice and an Id. at 545-46. post-termination And the nature availa- remedies important ble to the is an consideration analysis. Id. at 546. dispute does

Hanson the fact that the collective bargaining agreement gave opportunity grieve him the only termination, and arbitrate not his ultimate but also along way. each decision of the accident reviewboard equally company's If it were clear that the "five-acci- policy unyielding might rule, dent" was a firm and be persuaded step-by-step rights that those satis- pretermination process requirements. fied due record, however, indicates otherwise.

Ray's policy affidavit describes the as a "consistent policy” discharge employee any "call[s] which for the 'chargeable' any in five involved accidents within 9- Ray's period." Excerpts deposition month from filed in support summary judgment motion, of Hanson's how- explanation ever, include his further that MSC "[management exceptions" has the to make to the policy, Ray acknowledged receiving that, after word "chargeable" that Hanson's fifth accident had been ruled company managers board, he review and other prior met to discuss Hanson's case to the decision to discharge management him. Because MSC retained dis- cretion fire to or retain who drivers accumulate five chargeable pretermination process accidents, the due requirements in discussed Loudermill and similar cases

apply to that determination. process indicated,

As the essentials of due in discharge employees context of of "tenured" notice are opportunity respond; process and the to what is due a given depends case on the facts and circumstances courtroom-style hearings that case. Full-blown are not required any generally, cases; but the most unusual opportunity provide response or oral written satisfy has been held to the "constitutional minima" of process. Loudermill, due 470 U.S. at 542. The pretermination "hearing" definitively "need not resolve propriety discharge. It should be an initial against essentially, check mistaken a deter- decisions— grounds mination of whether there are reasonable charges against employee believe that the are true support proposed action." Id. at 545-46. employee may Because dismissals often involve fac- disputes, importance tual Loudermill stresses the opportunity present "some for the [or [story]" present "plausible argu- her] side of the —to "arguable "might. prevent[] ments" on issues" that . . discharge" point may . . . a which —at represent only meaningful opportunity "the to invoke the discretion of the decisionmaker . . .." Id. at 543-44. indicated, however, The Court also "[t]his is not to say employer's] entirely [the that where conduct is dis- cretionary brought play. the Due Process Clause is into say person hearing Nor is it to that a can insist on argue order to that the decisionmaker should be lenient depart legal requirements." and from Id. at 543 n. 8 (citation omitted). "hearing,"

But whatever the form and nature of opportunity prior some to be heard to the decision to discharge required by is Loudermill and similar cases. though grieve And even Hanson had the and every step along way seek arbitration at to his fifth chargeable undisputed manage- accident, it is that MSC ment retained discretion to retain or fire a driver after opportunity accident, the fifth and that Hanson had no Loudermill, to be on heard that decision. Under that is a pretermination process rights, violation of his due summary judgment declaring that violation is warranted. inquiry. But that does not end our Because we have upheld constitutionality post-termination pro- of the Hanson, cess available we must consider whether the relief he seeks in this action is available to him for the pretermination violation alone. complaint sought (1) following

Hanson's relief: position; (2) backpay reinstatement to his former from discharge may the time of his to such time as he be (3) punitive damages. reinstated; and discovery completed, After was MSC filed a motion any relating damages in limine to exclude evidence for mental or emotional distress or for humiliation and loss reputation. granted of business The court the motion impropriety and while Hanson concedes the of evidence distress, of mental or emotional he contends that the barring court erred in evidence of humiliation and loss of reputation. business grounded

The trial court's decision was on the lack any repu- reference to humiliation and loss of business complaint. points Hanson, however, tation in Hanson's appearance phrase "badge infamy" to the of the in his complaint, argument, entirety, amended its sufficiently placed respon- "[t]his should have [of dent on notice for this claim humiliation and loss reputation] inquire business or at least on notice to into damages." authority the nature of the No is cited support single-sentence argument. of the complaint

The ad damnum clause of Hanson's does any damages not include reputational injury, claim for humiliation or quoted phrase appears

and the any damage only allegations, in allegation asserting employment. but a brief liberty interest in continued purposes pleading "notify

One of the is to opposing party pleader's position in the case and to frame the issues to be resolved in the action for

847 litigants benefit of the and the court." Hansher v. Kaishian, 374, 385, 564, 79 Wis. 2d 255 N.W.2d 570 (1977). single phrase "badge infamy" appearing complaint lengthy opinion, give not, does in our fair pursuing or reasonable notice that Hanson was a claim injury reputation, damages for to his business or for employ- humiliation, as a result of the termination of his inadequate process. properly ment with The trial court granted the motion limine. damages backpay puni-

As for the claims of damages, nothing tive there is in the record to indicate objected that Hanson ever to their exclusion from the objec- verdict and In instructions. the absence of such an tion, and, the issue Schumacher, is waived under State v. (1988), 388, 409, Wis. 2d 424 N.W.2d power go beyond have no that waiver.4 recognize right procedural We that because the right due is considered an "absolute" in the sense depend upon party's that it does not the merits of a assertions, substantive violations of that have been damages held to be "actionable for nominal without proof injury." Carey Piphus, of actual 435 U.S. (1978) (footnote omitted). Supreme Indeed, the Carey plain- Court if, stated remand, that even on prove any damages arising tiffs could not from their due suggests Hanson that it object would have made no sense to damage questions absence of in the verdict because the previously granted court had excluding MSC's motion evidence of reputational injury humiliation and granted and had also sum mary judgment dismissing involving post-termina all claims process. so, tion pretermination Even remained, claims he still subject offered no evidence damages, on the nor did he object to its omission from the verdict.

process deprivations, they still would be "entitled to damages recover nominal not to exceed one dollar . . (footnote omitted). appears that, Id. at It 267 thus where procedural process proved, the violation of due but no damages plaintiff established, actual can be is none- damages. theless "entitled" to nominal suggested regarded It is here that Hanson should be waiving any right by damages seeking as to nominal special very or, least, their inclusion verdict at moving damages. the trial court for an award of nominal damages have, cases, While nominal in at least two been presented jury,5 to the are not at all satisfied that generally-understood procedure that is such a that we apply should the waiver rule his to Hanson for failure to request question damages a nominal in the verdict. As postverdict for his failure to file a motion for such an award, it must be remembered that the court overturned judgment the verdict favor and Hanson's entered circumstances, MSC. Under these it would make little require damages him sense to to ask that nominal be judgment. included denying We conclude that the trial court erred in summary declaring judgment Hanson's motion for right pretermination to due was denied any compensa- However, MSC. because he has waived tory punitive damage and claims for violation of his pretermination process by failing object due instructions, to their omission from the verdict and he 5 Mall, Girardeau, Westborough City Cape See Inc. 794 cert, denied, (8th 1986), (1987); F.2d 339 Cir. 480 U.S. 918 DeRobertis, Davenport v. (N.D. 1987), Supp. F. Ill. — modified, denied, (7th Cir.), —, cert. 844 F.2d L. U.S. (1988). Ed. 2d 248

may damages no recover more than nominal for the violation. part part,

We affirm in therefore reverse in judg- trial remand to the court with directions enter declaring right ment the violation of Hanson's to pretermination process setting due and nominal dam- ages dismissing dollar, one to exceed and his other claims.6

Finally, prevailed, part in because Hanson has at least, claims, on of his one several we must allocate the appeal. sought noted, costs on As we have Hanson rein- backpay punitive damages statement, $20,000 of and of $50,000. have held he We none entitled to of the requested. prevailed has, however, relief He on one of his arguments provide MSC did not him with the —that type pretermination process required by pro- the due Comparing sought cess clause. the relief to relief granted declaration of the violation one and dollar —a damages considering, importance too, the —and Supreme procedural Court has attached to redress of due process deprivations deprivations even where those do any damages, not result in actual conclude Han- percent son recover should ten of his costs on this appeal, percent ninety MSC and that should recover appeal costs, its and we so order. recovery Hanson's action does not seek for MSC's breach of employee

his employment as an to continued unless termi- allege natéd for While complaint cause. he does his amended him, that MSC did not have allegation cause to fire he makes the solely in the context of process his constitutional due claim: discharge plaintiff good of the without "[T]he cause [MSC] plaintiff constituted depriving job State action of his without result, any due . . .." relating what, of law As a issues if any, may state he law claim have test MSC's to fire him cause appeal. are not on before us this

By part, the Court.—Order affirmed reversed part and cause remanded with directions. (dissenting). appeal presents

SUNDBY, J. This a question great significance public employers and employees: representing Does refusal of a union public employee employee's to arbitrate the unlawful dis- charge maintaining claim bar from against employer action under U.S.C. sec. 1983 deprivation employee's property interest employment?11 conclude that it does not there- fore dissent. cases, Atchison,

In a series of T. & S. F. R. Co. v. (1987); Buell, —, L. 480 U.S. 94 Ed. 2d 563 McDonald v. (1984); Branch, West 466 U.S. 284 Barrentine v.Arkan- Freight System, (1981); sas-Best 450 U.S. 728 Alex- (1974), Company, ander v. Gardner-Denver 415 U.S. 36 Supreme the United States Court has declined to hold employees, availability that individual because of the of bringing arbitration, are barred from claims under fed- designed provide guarantees eral statutes substantive employees. Although analysis question under each distinct, quite theory statute running through [McDonald,Barrentine, and Gardner- these cases DenverJ policies notwithstanding strong is that arbitration, encouraging "different considerations employee's rights apply where the claim is based on 1 provides: 42 U.S.C. sec. 1983 Every person who, statute, ordinance, any regula- under color of tion, custom, any usage, subjects, or . . . of State or causes to be subjected, any deprivation citizen of the United States ... to the of any rights, privileges by or immunities secured the Constitution and laws, law, party injured in shall be liable to the an action at suit equity, proper proceeding or other for redress. arising designed provide out a statute minimum guarantees substantive rentine, to individualworkers."Bar- supra, [Emphasis 450U.S. at 737. addedin Lingle.] Lingle Norge Magic Division, Chef, —, 486 U.S. (1988) (quoting Atchison, L. Ed. 2d 480 U.S. at 572-73). —, L. 94 Ed. 2d at Lingle, Atchison, Barrentine and Gardner-Denver private employee public are sector cases. McDonald is a sector case which involved a claim under sec. 1983. Lingle question presented

In was whether remedy had who a contractual under a collec- bargaining agreement discharge just tive without remedy cause could enforce her state-law for a retalia- tory discharge. appeals court held that the state remedy preempted by tort was sec. 301 of the Labor Management Lingle Relations Act of 1947.2The court explained preemption "merely that sec. 301 ensures that interpreting federal law will be the basis for collective- bargaining agreements, says nothing about the sub- rights may provide stantive a State to workers when adjudication rights depend upon of those does not interpretation agreements." —, of such 486 U.S. at (footnote omitted). L. 2d words, Ed. at 420-21 In if other granted rights (or, by a worker is substantive state federal) analogy, may rights law those be enforced court without reference to the and arbitration procedure bargaining agreement, in a collective unless 301(a) provides: Section LMRA employer Suits for violation of contracts between and a labor organization representing employees industry affecting in an com- Act, organizations, merce as defined this or between such labor may brought any be having district court of the United States

jurisdiction parties, respect of the without to the amount contro- versy regard citizenship parties. or without requires interpretation application of the law "Today's agreement. bargaining decision collective interpretation of collective-bar- make clear that should gaining firmly agreements realm; in the arbitral remains involving questions judges determine of state law can only questions labor-management if such do relations require construing collective-bargaining agree- (foot- Id., —, at 100 L. Ed. 2d at ments." 486 U.S. omitted). note Lingle question not reach the court did may individual,

whether a union waive its members' Lingle, nonpreempted rights. —, 486 U.S. at state-law noted, however, 421 n. 100 L. Ed. 2d at 9. The court parties bargaining law, to a collective under Illinois prohibition against agreement retali- could not waive they rights atory discharge alter a worker's nor could compensation scheme. Id. The under the state worker's deciding such a state law court stated: "Before whether pre-empted under federal law bar to waiver could be parties collective-bargaining agreement, we to a require evidence, in unmistakable' order would 'clear and Id. had been intended." to conclude that such a waiver (Citation omitted.) Analogously, before we decide bargaining agreement parties have collective employee's statutory and constitu- waived an federal rights, require "clear and unmistakable" tional we should parties to do so. There is no evidence that the intended case that the "clear and unmistakable' evidence this waive members' and union and MSC intended to employees' enforce federal statu- access to the courts to presumption tory rights. There is a and constitutional Tolley rights. against Okeson v. waiver of constitutional (8th Cir.), 25, etc., 864, 868 School Dist. No. 760 F.2d (1985). grounds, rev'd on other 766 F.2d 378 Supreme The Wisconsin Court has held a union was bargaining agent which for employees all could not make a employ- nonmember's termination of as a union negotiations voluntary ment result of quit compensation unemployment purposes. Mfg. Rhea Comm., v. 643, Co. Industrial 231 Wis. 749 N.W. (1939).

Wisconsin courts have by entertained actions indi- employees vidual to recover pay provided vacation in a Co., collective Skibb bargaining agreement. v. J.I. Case 447, (1949); 255 Wis. Pattenge Wagner N.W.2d 367 Works, 495, (1957). Iron 275 Wis. 82 N.W.2d 172 Some courts have judicial protection extended employees whose interests are being represented not in the arbitral process simply because the union officials did not believe employee's Clark claim. v. Hein-Werner Corp., 264, 270, (1959). Wis. 2d 99 N.W.2d dispute Clark involved a as to seniority rights. The court said: plaintiff employees

While the seniority had no rights law, at rights common and such were created solely by reason of the negotiated labor contract union, their they behalf nevertheless consti- property tute a valuable and cannot be divested process without due of law. It is the contention of the union due-process problem that no present, is holding plaintiffs' binding upon seniority the award rights, plaintiffs represented by because the were proceedings. union in leading the arbitration The process applied case on representation due as to class Hansberry (1940), v. Lee 311 U.S. . .. . opinion that, expressed the conclusion the sub- where representative stantial interests of the are neces- sarily probably purports or even the same as those he represent, vigorously due against militates giving upon [Clark, the decision effect them." 8 Wis. (citations 273-74, 137-38

2d at 99 N.W.2d at omitted)]. footnotes union his allegation

Hanson's that the withdrew knowledge or consent is uncontra- without grievance admitted that one of the rea- The union officials dicted. pursue was his they grievance did not Hanson's sons I that the union's interests seniority." conclude "low indifferent, at to Hanson's antagonistic, were or least Clark is applicable. holding and the of authority employee's prop the There is that where by legislation created or a collective bar erty interest of due the agreement, the extent gaining or the may by legislative be defined act employee 134, reh'g Kennedy, Arnett v. agreement. See U.S. (no denied, (1974) (plurality opinion) 417 U.S. 977 Winston v. United pretermination hearing required); Service, (trial- (7th 1978) States Postal Cir. 585 F.2d 198 v. United States necessary); Malone type hearing not Service, (6th 1975) (where Postal Cir. 526 F.2d con- gives the union sole bargaining agreement collective employee rely must machinery, trol of the remedies).3 his contractual upon the union to exhaust Stats., 111.70(4)(d)l, note, however, I sec. that, Act, provides "[a]ny indi Municipal Employment Relations right present grievances to employee . . . shall have the vidual suggested person municipal employer . . .." It has been contemplated is for representation MERA exclusive griev presentation bargaining purposes not the of collective Employment Municipal Relations Note, employer. ances to the Devices Labor Relations The Extension Private Wisconsin: of Municipal Employment, 1965 Wis. 671, Into L. Rev. 678-79. provides: federal constitution amendment to the The first . abridging the . . "Congress law . . . shall make no griev- redress of people petition for a ... the Government Const, I, right of the provides: "The ances." Article sec. Wis. theory espoused The in these cases has been dubbed the Finkin, "positivist" theory. Majority M. The Limits Rule Bargaining, in Collective 64 Minn. L. Rev. (1980). Presumably, 253-55 theory, under this the col- lective bargaining agreement provide would the exclusive forum in which the could obtain redress of an discharge. unlawful "positivist" theory cannot be reconciled with the Supreme United States Court deci- I sions have discussed nor with Cleveland Bd. Educ. v. Loudermill, (1985).4 470 U.S. 532 people petition ... government . . . never shall be abridged." Winston, underpin Malone majority opin which ion, questionable precedential are of value. Each case involved employees who, of the United States Postal in Service the Postal Reorganization (PRA), placed by Act Congress were under the they private National Labor Relations Act and treated as if were employees. sector In Winston court rep the said: exclusive "The postal resentation nonpreference-eligible employees in labor- management relations under PRA is the no different from that of private employees sector under the National Labor Relations Act." 585 F.2d at 210. "positivist"

Malone and Winston approach follow the plurality Kennedy (although in v. Arnett in the court Winston approach, 30), disavowed the at 585 F.2d 209 n. which one com- you mentator get you has dubbed the "what is what see" approach. Alstyne, W. in Property": Adju- Van Cracks "The New dicative State, Due Process in the Administrative 62 Cornell L. (1977). words, Rev. right In other because the to tenure by Congress, was Congress conferred pro- was free to define cess due the approach to terminate that tenure. This is contrary long to what has been considered axiomatic —that the process. may Constitution defines due "While the State define property, what is having and what is not rights once those defined process . . Kennedy, Constitution defines due .." Arnett (1974) J., (White, 416 U.S. concurring part and dis- senting part). flatly

Other courts have a held that collective bar- gaining agreement operates employee's as a waiver right process. supra, Finkin, See to due M. at 250-53. Supreme

The United States I Court decisions which dispel have discussed a that collective bar- notion gaining agreement employee's can circumscribe an state- rights, "posi- or federal-law or constitutional on either a theory. theory Further, or tivist" a waiver neither can be applied public employment; public employer's a rules bargaining agreement contained a collective must supra, Finkin, M. constitutional examination. withstand at 255. anticipate argument

I this that case does not important statutory involve an or constitutional implicated cases; as was such the cited all alleged discharge involved here is an without cause. employment Gardner-Denver involved discrimina- Rights tion claim under Title VII of the Civil Act of wage pro- .1964;Barrentine, a violation of minimum Act; Atchison, visions the Fair Labor Standard a Fed- Employers' Liability Lingle, complaint; eral Act a retaliatory discharge. McDonald, however, makes clear Congress judicially intended that sec. be enforceable; 466 U.S. at 290.5 city police he

McDonald was officer who claimed discharged "proper was without cause." He exhausted remedy grievance process under the but did not appeal Instead, he arbitrator's adverse decision. began held a sec. 1983action. The Court that the federal improperly preclusive unap- courts effect to accorded the pealed pre- arbitration award. The stated that its Court rejections preclusion in vious of a rule of Barrentine and part large in in of deferral Gardner-Denver based "were 5 Grattan, Burnett v. rights belong Civil 468 actions court. (1984). U.S. Congress

on our conclusion that intended the statutes at judicially issue in those cases be to enforceable that and provide adequate arbitration could not an substitute for judicial adjudicating proceedings in claims those under (Citations omitted.) McDonald, statutes." U.S. at similarly 289. The Court said: "These considerations require judicata that we find the doctrines res estoppel inapplicable collateral in this section 1983 explained action." Id. "[A]s The Court further said: (1972), Foster, Mitchum 407 U.S. 242 . . . very purpose interpose '[t]he sec. 1983 was to people, courts federal guardians between the States as people's rights protect federal —to people from unconstitutional action under color state " law.' Id. at 290. explained why The McDonald Court arbitration provide adequate judicial "cannot an substitute for a proceeding protecting statutory the federal and con- rights designed stitutional sec. 1983 is to safe- guard." may First, 466 U.S. at 290. "[a]n arbitrator not expertise required complex . . . have the to resolve the legal questions (Foot- arise sec. 1983actions." Id. omitted.) "Second, note because an arbitrator's author- ity solely may contract, derives from the an arbitrator authority (Cita- not have the sec. enforce 1983." Id. omitted.) usually "Third, when, tion case, as is union has exclusive control over the 'manner and extent grievance presented,' which individual is .... The union's interests and those of the individual always compatible. are result, not identical or even As a may present employee's grievance vig- the union less orously, strategic or choices, make different than would employee." (quoting Co., Id. at Gardner-Denver n.19). "Finally, factfinding 415 U.S. at 58 generally arbitral equivalent judicial factfinding." Id. present in These factors are all this case and militate giving preclusive against grievance effect to the aborted proceedings. that,

The seventh circuit has stated dicta pro "McDonald not decide whether an arbitration does satisfy ceeding requirements can of due law, and does not undermine the decisions that hold that may." City Connersville, Ind., it Parrett v. 737 F.2d (7th 1984), dismissed, Cir. cert. 469 U.S. 1145 (1985). The Court would have to disavow much of what it said McDonald to conclude that the usual collective bargaining agreement grievance machinery is an ade- quate judicial substitute for enforcement of sec. 1983. any question griev- event,

In is not whether a procedure satisfy public ance and arbitration employee's can a procedural process, right to due but whether procedure existence of a the precludes and arbitration public employee litigating a from with the employer employee's substantive claim under a fed- eral statute or the federal constitution. McDonald public employee's right answers that the of access to the important statutory courts to enforce an federal or con- by bargain- stitutional cannot be barred a collective ing agreement's grievance procedure. and arbitration Supreme

It is true that the United States Court has private held that an action sector seeking damages alleged "wrongful discharge" for an was dispute" compelled a "minor which he was under the National Railroad Labor Act to arbitrate before the Adjustment & Andrews v. Louisville Railroad Board. (1972). Co., R. has Nashville 406 U.S. 320 This decision application by public employee damages to a a no suit deprivation allegedly of his or for an unconstitutional property employee's job. A claim her interest upon constitutionally protected cannot, based interest law, as a dispute."6 matter be deemed a "minor voluntarily his against Hanson dismissed claim duty fairly union for its breach of its represent to him. thereby Hanson is not from showing foreclosed this duty action that union breached its pursue to grievance. Inc., See Freight, Hines Anchor Motor (1976) (employees U.S. 554 could maintain action employer against breach for of collective bargaining agreement though even accompanying against action tried). is, however, union remained to be It unnecessary whether, for us to decide as a condition of maintaining action, this must Hanson show that the union violated him duty representation.7 its fair That question has see, Finkin, argued not been supra, or briefed. But M. at 257-58. however, possible,

6 It require is that the will Court exhaus agreement's tion of bargaining grievance procedure a collective employee where the not discharged does claim he or she was attempted the exercise or right exercise of a constitutional or a substantive conferred or federal state But law. see McDonald, (a preclusion 466 U.S. n. 11 might at 292 rule of have detrimental effect on the arbitral because might bypass arbitration) (preclusion judicial and id. n. 12 of a gravely 1983). action would undermine the effectiveness sec. It doubtful, event, in that permit that the Court will the union employer employee's and the to bar the access machinery. Finkin, supra, See M. at 256-63. WERC, See Mahnke v. 66 Wis. 2d 225 N.W.2d 617 (1975) (employee private sector could maintain unfair practice against employer labor establishing without union duty representation him). in its failed of fair

Case Details

Case Name: Hanson v. Madison Service Corp.

Court Name: Court of Appeals of Wisconsin

Date Published: May 11, 1989

Citation: 443 N.W.2d 315

Docket Number: 88-0252

Court Abbreviation: Wis. Ct. App.