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Board of Regents of the University of Wisconsin System v. State6/28/2002
ersed in part and affirmed in part.
. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE, did not participate.
. DIANE S. SYKES, J. (dissenting).
I respectfully dissent. I read nothing in Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985,) or State ex rel. Tracy v. Henry, 219 Wis. 53, 262 N.W. 222 (1935), that precludes application of the after-acquired evidence doctrine of McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995), in a remedy hearing under the civil service code in order to determine the proper measure of back pay damages for wrongful termination.
. The McKennon after-acquired evidence rule allows later-discovered evidence of employee misconduct supplying independent justification for termination to be admitted on the issue of remedy for an earlier wrongful termination. McKennon, 513 U.S. at 360-61. "The employee's wrongdoing must be taken into account . . . lest the employer's legitimate concerns be ignored." Id. at 361. Accordingly, in determining a back pay remedy for an illegal employment termination--in McKennon it was a termination in violation of the Age Discrimination in Employment Act--the after-acquired evidence rule allows admission of evidence that the employee would have been terminated on separate, later-discovered grounds. Id. at 363.
. As the majority notes, Loudermill held that due process requires notice and an opportunity for "'some kind of hearing' prior to the discharge of an employee who has a constitutionally protected property interest in his employment." Loudermill, 470 U.S. at 542. However, "the pretermination 'hearing,' though necessary, need not be elaborate." Id. at 545. "The essential requirements of due process . . . are notice and an opportunity to respond." Id. at 546. There is no reason why the notice and hearing requirements of due process cannot be satisfied within the context of a remedy hearing. As long as the employee has notice and an adequate opportunity to respond on the after-acquired evidence issue, there can be no due process violation.
. As the circuit court in this case held, applying the after-acquired evidence rule is fully consistent with Tracy. There, this court was concerned with the issue of whether a subsequent legal discharge could operate retroactively to the date of a prior illegal discharge. Tracy, 219 Wis. at 54. The court said no; a civil service employee illegally discharged is entitled to recovery from the time of the illegal discharge up until the subsequent legal discharge as if he had been reinstated during that time period. Id. at 62.
. Application of the after-acquired evidence rule here does not operate to make a subsequent legal discharge retroactive to the date of the illegal discharge. UWM seeks only to limit Brenon's back pay recovery to damages from the date of the original wrongful discharge to the date that it says it could validly have discharged him on the independent, newly-discovered grounds. This does not run afoul of Tracy. Indeed, the public employees in Tracy were limited to a back pay recovery "as of the date of their original illegal discharge, as employees in the state civil service . . . up to the time of a valid discharge." Id. at 62.
. The real question here is whether Brenon was "ambushed" with the after-acquired evidence issue at the remedy hearing. That UWM considered the "purloined documents" as serious misconduct certainly came as a surprise to no one. The parties had been waging a pitched battle over the return of the documents ever since the issue arose in Brenon's June 1996 deposition. The documents were the subject of a replevin action initially filed in 1997 and re-filed in 1998, which
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