Violation of Work Rules

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WI Court of Appeals – District III

Case Name: Andrew Dryja v. Wisconsin Employment Relations Commission

Case No.: 2023AP001036

Officials: Kloppenburg, P.J.

Focus: Violation of Work Rules

In 2018, the Wisconsin Department of Natural Resources (the “department”) discharged Andrew Dryja from his position as a conservation warden at the department’s warden station in Langlade County based on Dryja’s having allegedly violated three work rules. In the course of the administrative and judicial appeals that followed, the appeals court concluded previously that substantial evidence established that Dryja had violated only one work rule and remanded the matter to the Wisconsin Employment Relations Commission (the “commission”) to “order relief for Dryja” consistent with its authority based on that one violation and to consider his request for costs. On remand, the commission issued a decision rejecting the department’s position that discharge remained the appropriate discipline for the one violation, imposing a three-day suspension, and requiring that Dryja “shall be offered reinstatement and made whole.” In its decision, the commission also denied Dryja’s request for costs as a prevailing party in the commission proceedings because the department was substantially justified “as to the discharge of Andrew Dryja.” In response to the commission’s order, the department offered Dryja a position as a conservation warden at a warden station in either of two counties. Neither of those two counties was Langlade County, and both required, pursuant to department policy, that Dryja relocate his residence across the state.

Dryja sued seeking mandamus relief against the department, asking the circuit court to require the department to reinstate Dryja to his former position as conservation warden at the warden station in Langlade County. In the same suit, Dryja also sought judicial review under WIS. STAT. ch. 227 of the commission’s denial of his request for costs related to the commission proceedings. The court granted Dryja’s request for mandamus relief and concluded that Dryja is entitled to recover costs. On appeal, the department argues that Dryja did not meet his burden entitling him to mandamus relief; and the commission argues that it properly determined that Dryja is not entitled to recover costs. The department also argues that Dryja improperly combined a petition for mandamus relief and a petition for judicial review in one action. The appeals court concludes that Dryja did not improperly seek mandamus relief together with chapter 227 judicial review in the circumstances here and concludes that Dryja is entitled to mandamus relief and that the circuit court did not erroneously exercise its discretion in granting the relief that it ordered. The court also concludes that Dryja is entitled to recover costs related to the commission proceedings, as he has narrowed his request on appeal, from the time after this court remanded this matter to the commission and the department continued to pursue Dryja’s discharge for the one work rule violation that remained

Affirmed and remanded.

Decided 02/01/24

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