01-2160 Yao v. Board of Regents of the University of Wisconsin

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“Yao ‘does not dispute the CFRR’s finding that the tapes were not erased in an effort to affect the outcome of the case.’ The gaps in the videotaping for the weekend of December 4-6, 1998, came about during Chapman’s investigation of suspicious happenings in his laboratory, before the university had taken any steps to dismiss Yao, and indeed, before Yao (or anyone) had even been identified as a likely suspect in the tampering. In short, unlike the refrigerator in Sentry and the gas piping in Garfoot, both of which were altered or destroyed at a time when the interest of others in preserving the items was apparent, the tapes in this case came into being only as a result of Chapman’s information-gathering efforts. The gaps in coverage for the weekend in question occurred because it initially appeared as though nothing of importance had been detected. We conclude the cases on which Yao relies do not support sanctioning the university simply because Chapman did not gather all of the information he might have.

“Chapman’s video surveillance and tape handling procedures could certainly have been better, in that he should perhaps have preserved longer continuous sequences of videotapes. But, the fact that the tapes are an incomplete record of events goes to their weight and credibility, not to whether the university should be sanctioned in the dismissal proceedings for a poorly conducted video surveillance. Yao argues here, as he did before the board, that the missing tape segments would have shown him placing two-liter flasks in the shaker on Friday, may have shown someone removing Yao’s flasks, and would have confirmed that the flasks Yao manipulated Saturday morning were his and not Chapman’s. These arguments serve to diminish the impact of the videotapes in supporting the university’s claims, but they do not deprive the tapes of all probative value. The tapes show what they show, neither more nor less, and we conclude that the board did not err in considering them in arriving at its findings of fact.”

Affirmed.

Recommended for publication in the official reports.

Appeal from an order of the circuit court for Dane County, Nichol, J., Deininger, J.

Attorneys:

For Appellant: Marsha M. Mansfield, Madison; James A. Olson, Madison; John C. Carlson Jr., Madison

For Respondent: Jennifer S. Lattis, Madison