Summary
In Jabs v. State Board of Personnel (1967), 34 Wis.2d 245, 251, 148 N.W.2d 853, this court described an arbitrary or capricious decision as "`... one which either so unreasonable as to be without a rational basis or the result of an unconsidered, wilful and irrational choice of conduct.'..."
Summary of this case from City of Fond du Lac v. Department of Natural ResourcesOpinion
February 28, 1967. —
March 14, 1967.
APPEAL from a judgment of the circuit court for Dane county: NORRIS E. MALONEY, Circuit Judge. Affirmed.
For the appellant there were briefs by Peterson, Sutherland, Axley Brynelson, and oral argument by Eugene O. Gehl, all of Madison.
For the respondent the cause was argued by Robert J. Vergeront, assistant attorney general, with whom on the brief was Bronson C. La Follette, attorney general.
This action was brought by Lila M. Jabs against the State Board of Personnel to review an order of the board sustaining her dismissal by the division of residence halls of the University of Wisconsin.
The appellant was employed under the classified service of the state of Wisconsin by the University of Wisconsin (division of residence halls). She worked in the cafeteria with a position as a domestic service helper. At the time she was hired, on November 1, 1963, she suffered from a back ailment which she had previously sustained while working for a different employer.
During Mrs. Jabs' employment with the University, her back difficulty increased to the point where surgery was required. She went into the hospital on January 27, 1964, and she was unable to return to work until April 6, 1964. However, during her absence her superiors allotted certain time payable to her at intervals of not more than thirty days, so that the appellant could periodically be granted administrative leaves of thirty days. In this way she was not absent without leave at any time during her first lengthy illness. Personnel rule 18.05, 5 Wisconsin Administrative Code, provides that administrative leave is leave without pay granted by the appointing officer for a period not to exceed thirty days.
The appellant became a permanent employee on June 12, 1964. On November 2d she again became ill and experienced further difficulty with her back. She was off work for two days, returned for a few days, and was then off work from November 7, 1964, until the time she was discharged on January 18, 1965.
When her superiors learned that her second extended absence was due to continued difficulty with her back, they determined that this lengthy absence was having an adverse effect on the efficiency of the service because it forced the residence halls to hire part-time student help to do work that should be done by a full-time person. For this reason, the authorities did not apply the appellant's sick leave and accumulated time off as they had done during the first absence. Instead, as the board noted in findings approved by the trial court, the time accumulated was applied on consecutive days so that it was exhausted by December 11, 1964. The appellant was then granted administrative leave until January 10, 1965, but after that date she was absent without leave. On January 18th, the personnel officer issued a letter terminating the appellant's service in order to meet the operational needs of the division of residence halls.
The appellant was not notified of the different application of the administrative rules for her second extended absence.
The State Board of Personnel affirmed the discharge of the appellant, and the circuit court sustained the decision of the board. Mrs. Jabs appeals.
Statute and Rule Involved.
Sec. 16.24, Stats.:
"Removals, suspensions, discharges, reductions, dismissals, layoffs, resignations. (1) (a) No permanent subordinate or employe in the classified service who has been appointed under ss. 16.01 to 16.32 or the rules made pursuant thereto shall be removed, suspended without pay, discharged, or reduced in pay or position except for just cause, which shall not be religious or political. . . ."
Pers. 18.05, 5 Wisconsin Administrative Code:
"Leave Without Pay. (I) WHEN GRANTED. (a) Administrative Leave. Leave without pay for a period not to exceed one month may be granted by the appointing officer.
"(b) Formal Leave. Application for a leave in excess of one month shall be filed by the employee on forms supplied by the bureau. A classified employe may be allowed a leave of absence without pay for a period not to exceed one year. Such leave is subject to the recommendation of the appointing officer and the approval of the director before becoming effective. Such leave shall be granted only when it will not result in prejudice to the interests of the state as an employer beyond any benefits to be realized upon the employe's return to the service. Leave without pay may be granted for: educational purposes where direct or indirect benefit accrues to the service; purposes of working for a limited period in other employment where the experience would afford a direct benefit in the performance of his work for the state upon his return; maternity cases and exceptional personal reasons other than those mentioned above. Failure to return on or before the expiration of such leave or upon the cancellation or revocation thereof by the director shall be considered as separation from the service, and the nature of the separation action shall be determined on the merits of the case unless it is shown to the satisfaction of the appointing officer and the director that failure to report was excusable. Leave of absence because of illness or for educational purposes may be extended up to 2 years on a year to year basis on the recommendation of the appointing officer and the approval of the director. . . .
"(3) ABSENCE WITHOUT LEAVE. Any absence of an employe that is not authorized under these rules shall be considered as an absence without leave. Such absence may be considered as a resignation or may be grounds for disciplinary action. Any employe who is separated from the service on the basis of absence without leave may thereby be deemed to have forfeited his reinstatement eligibility."
Before her employment with the state became permanent, Mrs. Jabs was obliged to be away from her work from January 27, 1964, until April 6, 1964. Although she was only entitled to a maximum of thirty days' absence under administrative leave pursuant to personnel rule 18.05 (I) (a), Wisconsin Administrative Code, Mrs. Jabs' superiors allotted certain time payable to her at selected intervals so that she did not exceed the maximum of thirty days of uninterrupted absence.
This manipulation of the records was done to "hold the time" for Mrs. Jabs during her illness. The second time Mrs. Jabs was ill and had to take a prolonged absence she had become a permanent employee of the state. On her second absence, from November 7, 1964, to January 18, 1965, her superiors did not favor her with the same kind of doubtful "adjustment" which had previously been applied. As a result of this, Mrs. Jabs was officially absent without leave after January 10, 1965, and she was discharged on January 18, 1965.
Mrs. Jabs now complains that it was unjust for her appointing officer to have applied all her sick leave and accumulated time off to consecutive days and thereby deprive her of the irregular extension of her permissible absence which had been granted during her earlier illness. Neither the board of personnel nor the circuit court was impressed with this contention. Nor are we.
Mrs. Jabs maintains that her discharge is violative of sec. 16.24 (1) (a), Stats., which precludes discharge "except for just cause." We are unable to find any substantial evidence in this record which would require a finding contrary to that of the state board of personnel. It conducted a full hearing and found that the residence halls division acted in good faith in discharging Mrs. Jabs.
The employee's superiors had leaned over backward to carry Mrs. Jabs through her original period of prolonged illness. Subsequently, when the efficiency of the service was jeopardized and there was no assurance that she could return to work on February 1, 1965, the residence halls division was warranted in terminating her employment. The determination that her absence had an adverse effect upon the conduct of the cafeteria constituted a valid basis for discharge. In State ex rel. Nelson v. Henry (1936), 221 Wis. 127, 132, 266 N.W. 227, this court said:
"The civil service law has in view not only security of tenure but efficiency of service as well."
See also State ex rel. Esser v. McBride (1934), 215 Wis. 574, 578, 254 N.W. 657.
We fully recognize that Mrs. Jabs' absence was not wilful or frivolous. Also, as a new employee doing domestic work, she may not have been aware of the intricate rules relating to absence and leave. If she did not understand the strategy which was arranged during her original absence, she may have hoped that the same course would be followed a second time. Unfortunately for Mrs. Jabs, there is no duty on the part of a superior to inform an employee that there will be a correct application of the rules. Also, there is no duty to apprise an employee as to the mechanics of various leave devices in the absence of a request for such information.
A state employee cannot relieve himself of the responsibility of informing himself regarding the rules regarding sick leave merely by not making inquiry. We agree with the observation of the trial judge, who stated:
"The rules of the State Personnel Bureau are published and easily available to any state employe. Certainly in the course of a year on the job and having once had occasion to have a leave of absence of two months and ten days, it would seem no more than usual for the Petitioner to avail herself of getting the necessary information. The supervisor having advised her at Thanksgiving time of 1964 to `keep in touch' was certainly not of such a nature as to mislead the Petitioner to the extent of discouraging her from ascertaining to her own knowledge what her rights were."
We do not believe that the appellant is entitled to rely on a doctrine of estoppel. Mrs. Jabs had the same means of knowledge available to all state employees, but she did not use them. Monahan v. Department of Taxation (1963), 22 Wis.2d 164, 168, 125 N.W.2d 331.
Mrs. Jabs urges that discharge in her case was arbitrary and capricious. In our recent holding in Pleasant Prairie v. Johnson, ante, p. 8, 148 N.W.2d 27, we defined an arbitrary or capricious decision as "one which is either so unreasonable as to be without a rational basis or the result of an unconsidered, wilful and irrational choice of conduct." Olson v. Rothwell (1965), 28 Wis.2d 233, 239, 137 N.W.2d 86.
There is little dispute as to the facts in this case. We agree with the board of personnel which found that upon those facts the appointing authority was entitled to discharge Mrs. Jabs. We also agree with the circuit judge's conclusion that there is nothing in the case of "a palpable inequitable nature." We conclude that there was just cause under sec. 16.24 (1) (a), Stats, and that the discharge was not arbitrary.
By the Court. — Judgment affirmed.