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Board of Regents of the University of Wisconsin System v. State6/28/2002
due process rights in issuing the initial ten-day suspension. He concluded that UWM failed to provide Brenon with adequate notice and a pre-disciplinary hearing prior to the suspension and therefore recommended that the Commission reject the suspension. However, he determined that, because Brenon had failed to exercise good judgment in violation of University of Wisconsin System Work Rule IV. J., this conduct was sufficient to warrant some disciplinary action. He deemed that the ten-day suspension was excessive discipline for this violation and that an oral or written reprimand was appropriate.
. With respect to the termination, Commissioner Murphy concluded that UWM failed to prove all the allegations of misconduct that prompted Brenon's termination and that UWM had no just cause for the termination. The evidence, he noted, failed to establish that Brenon told derogatory ethnic jokes after notification of the ten-day suspension, that he retaliated against any employees, and that he was otherwise untruthful during the investigation. As a result, Commissioner Murphy considered the termination as an excessive exercise of discipline and ordered the modification of Brenon's termination of employment to a suspension of ten days without pay. He also ordered a reinstatement of Brenon. The Commission, although amending some language, adopted the findings of the proposed decision and order. It reserved jurisdiction to consider a request by Brenon for costs and fees pursuant to Wis. Stat. § 227.485(3).
. The Commission later rejected Brenon's request for costs and fees, concluding that UWM was "substantially justified" in taking its position on Brenon's conduct and therefore an award for fees and costs was not warranted. See Wis. Stat. § 227.485(1)(f) and (3). The Commission then granted leave to conduct discovery related to the remedy.
. A remedy hearing was scheduled. Before the hearing, Commissioner Murphy proposed the following statement of issues for hearing: (1) the sum of Brenon's back pay and other credits, (2) the sum of UWM's mitigation damages and set-offs, and (3) the total sum of Brenon's remedy. After the May 18, 1999 hearing, Commissioner Murphy issued a proposed decision and order, recommending $159,533.64 in back pay to Brenon for the time period from February 11, 1996 to May 22, 1999, and additional back pay plus interest until Brenon's reinstatement. The decision noted that UWM had failed to mitigate its damages by reinstating Brenon and also ordered UWM to immediately offer reinstatement to Brenon to his former position or its equivalent.
. During the remedy hearing, UWM attempted to introduce evidence related to alleged misconduct committed by Brenon during his employment with UWM but was not discovered by UWM until after his termination. The misconduct consisted of Brenon's alleged practice of copying and removing confidential documents from UWM. UWM first questioned Brenon on this conduct on June 24, 1996, during a pre-hearing deposition. During this deposition, UWM demanded that Brenon return all confidential files. Brenon subsequently returned one box of documents.
. When UWM sought to introduce evidence related to this misconduct at the remedy hearing, Brenon objected on the basis of relevancy. UWM responded that the evidence was relevant because it would show that UWM would have terminated Brenon for misconduct in June 1996 if he had still been employed there. Accordingly, on this "after-acquired evidence" theory, UWM argued that this evidence applied toward the issue of mitigation of damages in the wrongful termination case because it would limit an award of back pay at June 1996. Commissioner Murphy initially overruled Brenon's obje
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