Benjamin M. Dykman v. Board of Regents of the University of Wisconsin

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
November 4, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2020AP1256 Cir. Ct. No. 2019CV2237

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

BENJAMIN M. DYKMAN,

PETITIONER-APPELLANT,

V.

BOARD OF REGENTS OF THE UNIVERSITY OF WISCONSIN,

RESPONDENT-RESPONDENT.

APPEAL from an order of the circuit court for Dane County:
STEPHEN E. EHLKE, Judge. Affirmed.

Before Blanchard, P.J., Fitzpatrick, and Graham, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2020AP1256

¶1 PER CURIAM. Benjamin Dykman seeks judicial review of a
decision by the provost of the University of Wisconsin, which affirmed a decision
by the university’s office of compliance, which denied Dykman’s disability
discrimination complaint. In this appeal, Dykman purports to assert up to twenty
separate issues for our review, and he makes wide-ranging allegations of
impropriety against the university’s department of psychology, the office of
compliance, the provost, and the circuit court. At bottom, Dykman asks us to
conclude that the department changed his employment classification in March
2014 because of a perceived disability. He also asks us to relieve him of
obligations he assumed under an agreement that he reached with the department in
November 2014 to resolve an earlier grievance he filed based on the same adverse
employment decision and nearly identical facts. We reject Dykman’s arguments
and affirm the circuit court, which affirmed the provost’s decision.

BACKGROUND

¶2 This is a review of an agency action decision pursuant to WIS. STAT.
§ 227.52 (2019-20),1 and our review is limited to the provost’s decision denying
Dykman’s discrimination complaint. Nevertheless, because Dykman’s
employment history and prior grievances are pertinent to the current dispute, we
include background facts about these topics.

¶3 Dykman held a position as a senior lecturer in the university’s
department of psychology for approximately eighteen years until his retirement in
December 2017. As of 2014, he had a one-year “rolling horizon” appointment.

1
All references to the Wisconsin Statutes are to the 2019-20 version.

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As we understand it based on the parties’ submissions, a rolling horizon
appointment is a limited form of job protection. Each day that Dykman enjoyed
this appointment classification, he was guaranteed one year of lecturing
commitments beyond that date.

¶4 In March 2014, the department revoked Dykman’s rolling horizon
appointment and changed his employment classification to a one-year, fixed-term
renewable appointment. This decision to change Dykman’s employment
classification was made during a closed session of the department’s executive
committee, which we refer to as the “March 2014 meeting.” The department
communicated its decision to Dykman by letter, providing specific performance-
based reasons for the decision.

¶5 Dykman promptly challenged the revocation of his rolling horizon
appointment by filing a grievance with the university’s academic staff appeals
committee (ASAC). For ease of reference, we refer to this as Dykman’s “first
grievance.” In his first grievance, Dykman contested the process that was used
and conclusions that were reached during the March 2014 meeting. Among other
things, he argued that the performance-based reasons given by the department
were “unfounded or grossly exaggerated” and did not “warrant a change” in his
appointment. He also asserted that “[s]erious, emotionally charged, unfounded
defamation” of his character occurred at the March 2014 meeting, including a
comment by one colleague that a second colleague said that Dykman “fit the
profile of a very dangerous person.”

¶6 Several months later, the department’s executive committee voted to
reconsider its prior action and reinstate Dykman’s one-year rolling horizon
appointment, contingent upon Dykman withdrawing his first grievance and

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entering into a “binding retirement agreement” with the department. Following
that vote, Dykman negotiated and signed a written agreement, which we refer to as
the “November 2014 agreement.” The November 2014 agreement provided in
pertinent part as follows:

Absent cause for dismissal, nonrenewal or layoff
that would apply to any University Instructor, [Dykman]
shall hold [his] appointment, as Senior Lecturer for
three (3) years, beginning January 2015, and until [his]
resignation and retirement in December 2017. The
agreement to separate from employment with the
Department no later than December 2017 shall be binding
except in the event that the University offers to extend [his]
employment and [he] agree[s] to such an extension.

¶7 In June 2016, approximately nineteen months after he signed the
November 2014 agreement, Dykman filed another grievance with ASAC, which
we refer to as his “second grievance.” In his second grievance, Dykman again
challenged the performance-based reasons given for changing his employment
classification during the March 2014 meeting. He also sought to avoid his
obligations under the November 2014 agreement (that is, what he referred to as his
upcoming “forced retirement”), arguing that he had been forced to agree to terms
he did not like based on an “unfounded, capricious, and arbitrary evaluation” of
his teaching ability. According to Dykman, the issues he was “raising and seeking
to settle” in his second grievance were “different” from the issues he raised and
settled in his first grievance. Specifically, he stated that “needless, unfair and
harmful wrongdoing and defamation of character” occurred during the November
2014 meeting, and he demanded that certain colleagues be disciplined for their
comments. Again, among the alleged defamatory remarks listed in Dykman’s
second grievance was the assessment that he “fit the profile of a very dangerous
person.”

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¶8 ASAC issued a decision dismissing Dykman’s second grievance as
untimely. As ASAC explained, “[t]he vast majority of instances” that Dykman
cited in his second grievance “were related to the instances addressed and
resolved” in the November 2014 agreement, and the remaining instances post-
dating November 2014 were “non-employment issues.”

¶9 In December 2017, Dykman sought reconsideration of ASAC’s
dismissal of his second grievance based on “new evidence.” This purported new
evidence consisted of an audio recording of the March 2014 meeting. ASAC
declined to accept the recording as new evidence or reconsider its decision.
Nothing in the administrative record suggests that Dykman sought administrative
or judicial review of ASAC’s decisions dismissing his second grievance and
denying his request for reconsideration.

¶10 Dykman resigned and retired on December 31, 2017.

¶11 Then, in February 2018, Dykman filed a complaint with the
university’s office of compliance, in which he alleged perceived disability
discrimination and sought to nullify the November 2014 agreement. The audio
recording of the March 2014 meeting was the centerpiece of Dykman’s
complaint.2 He argued that the audio recording, which included comments from
colleagues stating that Dykman was “violence prone” and that he may have

2
The audio recording of the March 2014 meeting is not found in the administrative
record; however, the record does contain a so-called “verbatim” transcript of that recording.
There are reasons to question the completeness and accuracy of the transcript. Not only is it not
certified as having been prepared by a court reporter or other professional, but also, whoever
prepared it apparently omitted some portions of the discussion and annotated other portions with
extraneous commentary. Nevertheless, for purposes of our review, we assume without deciding
that the transcript contains an accurate representation of at least some of what was said during the
March 2014 meeting.

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suffered “neurological” difficulties or damage after a bike accident, demonstrated
that his appointment had been revoked due to a perceived disability. According to
Dykman, he should not be bound by the November 2014 agreement based on the
following string of propositions: if the department had not subjected him to
perceived disability discrimination during the March 2014 meeting, the committee
would not have revoked his rolling horizon appointment, he would not have filed
his first grievance, and there would have been no occasion to enter into his
November 2014 agreement in which he settled that grievance by committing to a
December 2017 retirement date.

¶12 Following a lengthy formal investigation, the office of compliance
denied Dykman’s disability claim. Among other things, it determined that the
department did not coerce Dykman into entering the November 2014 agreement,
that the November 2014 agreement was legally binding, and that Dykman was
estopped from challenging the agreement after receiving its full benefit.3 The
office of compliance also determined that Dykman’s challenges to the March 2014
revocation decision and the November 2014 agreement were untimely and,
further, that the recording did not constitute new evidence because Dykman had
generally been aware of its contents at the time he filed his earlier grievances.
Finally, the office of compliance determined that Dykman failed to prove that the
department changed his employment classification due to a perceived disability.
After “multiple reviews” of the audio recording, the office of compliance found
that the department revoked Dykman’s appointment due to his history of poor
teaching performance, low enrollments, and unacceptable treatment of students. It

3
The provost determined that the agreement resulted in a salary increase in Dykman’s
final three years of employment and increased benefits upon retirement.

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found that the discussion during the meeting of his allegedly erratic and
threatening behavior was related to safety concerns about how the department
would communicate the adverse employment decision to Dykman.

¶13 Dykman appealed to the provost, who upheld the decision by the
office of compliance. The provost emphasized that Dykman had been aware that
some members of the committee perceived him as dangerous even before he filed
his first grievance and, further, that “there is nothing in the [audio] recording that
demonstrates that the action of removing [his] Rolling Horizon appointment was
based on perceived disability.” To the contrary, the provost found that the
recording demonstrates that the “primary concern” motivating the revocation
decision “related to [Dykman’s] history of academic performance-related
concerns.” The provost explained that “a discussion about someone’s potential
emotional and physical response to a negative employment decision is not the
equivalent of disability discrimination.”

¶14 Dykman filed a pro se petition for judicial review in the circuit court,
naming the University of Wisconsin Board of Regents as the respondent. See
WIS. STAT. § 227.52. In the petition, he contested the March 2014 change in his
employment classification, and he argued that he had been “misled and coerced”
into signing the November 2014 agreement. The circuit court dismissed the
petition for review. Dykman appeals.

DISCUSSION

¶15 In an appeal of a circuit court’s decision regarding a WIS. STAT.
ch. 227 petition for judicial review, we review the decision made by the
administrative agency rather than the decision rendered by the circuit court.
Myers v. DNR, 2019 WI 5, ¶17, 385 Wis. 2d 176, 922 N.W.2d 47. We begin our

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discussion by addressing a threshold issue related to the contents of the
administrative record. We then address the merits of Dykman’s petition.

I

¶16 WISCONSIN STAT. ch. 227 judicial review is normally confined to the
record compiled by the agency. WIS. STAT. § 227.57(1). In some circumstances,
a court may consider evidence outside the administrative record for limited
purposes. Id.; see also WIS. STAT. § 227.56(1); Lake Beulah Mgmt. Dist. v.
DNR, 2011 WI 54, ¶53, 335 Wis. 2d 47, 799 N.W.2d 73.

¶17 During the circuit court proceedings in this case, Dykman cited
alleged “irregularities” that occurred during the March 2014 meeting, and he asked
the court to allow for civil discovery and to schedule an evidentiary hearing to
determine, among other things, the truth of his former colleague’s assertion that he
was a “violence prone” individual. The Board of Regents opposed this motion.
Dykman then notified the circuit court of his belief that the administrative record
was “incomplete.” See WIS. STAT. § 227.55(1) (providing that administrative
agencies are to submit the “entire record” to the reviewing court, and the
reviewing court “may require or permit subsequent corrections or additions to the
record when deemed desirable”). The circuit court ultimately dismissed
Dykman’s petition without expressly deciding his motion seeking discovery and
an evidentiary hearing, and without addressing his assertion that materials were
missing from the administrative record.

¶18 Prior to filing his opening brief in this court, Dykman filed a motion
asking this court to supplement the administrative record. He argued that the
office of compliance and the provost considered certain materials that were not

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included in the record submitted by the Board of Regents, and that these materials
should be added to the administrative record.

¶19 We denied Dykman’s motion to supplement the record in an order
dated December 29, 2020. In so doing, we stated that “deciding whether the
record was incomplete will require the court to become familiar with the agency
decision and the issues to be argued on appeal,” and that it is “more efficient for
the court to do that only once, in the context of reviewing briefs that address all of
those issues together.” We further stated that, if Dykman’s assertion that
additional materials should be included in the administrative record is correct, we
may decide that “judicial efficiency would be better served by having the material
added to the record and continuing with the appeal,” rather than remanding the
case to the circuit court for supplementation. The clear implication of our order
was that, if Dykman continued to maintain that certain materials should have been
included in the administrative record, he should include factual and legal
arguments to that effect in his appellate briefing.

¶20 It is apparent that Dykman misconstrued our order. Based on his
appellate submissions, he took the position that we granted his motion to
supplement the record. Without further argument, he filed an appendix containing
a number of materials that are not contained in the administrative record.

¶21 In the course of considering how to address Dykman’s
misconstruction of our order and his submission of documents not contained in the
administrative record, we reviewed the extra-record materials submitted in
Dykman’s appendix, as well as other extra-record materials that he submitted to
the circuit court along with his petition for judicial review. Some of the materials
post-date the provost’s decision and are, on their face, inappropriate candidates for

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record supplementation. It is not apparent whether other materials were actually
submitted to the office of compliance or the provost during the administrative
proceedings. Nevertheless, having reviewed these materials, we can confidently
state that none of these materials would alter any of the conclusions we reach
below.

II

¶22 We now turn to the provost’s decision. On review, we will affirm
the decision “[u]nless [we] find[] a ground for setting aside, modifying, remanding
or ordering agency action.” WIS. STAT. § 227.57(2). The petitioner bears the
burden of demonstrating that the agency’s decision should be set aside or
modified. Bethards v. DWD, 2017 WI App 37, ¶16, 376 Wis. 2d 347, 899
N.W.2d 364. We review an agency’s conclusions of law de novo, Tetra Tech EC,
Inc. v. DOR, 2018 WI 75, ¶84, 382 Wis. 2d 496, 914 N.W.2d 21, and we will set
aside or modify the agency’s decision if “the agency has erroneously interpreted a
provision of law and a correct interpretation compels a particular action[.]” See
§ 227.57(3).4 If the agency’s decision depends on facts determined without a
hearing, we will set aside or modify the agency’s decision “if the facts compel a
particular action as a matter of law[.]” See § 227.57(7).

4
The Board of Regents argues that we should afford due weight to the provost’s
experience, technical competence, and specialized knowledge, particularly in matters involving
university personnel decisions. Dykman disagrees. We need not decide whether we would afford
due deference in this case because doing so would not alter our conclusions. See Barrows v.
American Fam. Ins. Co., 2014 WI App 11, ¶9, 352 Wis. 2d 436, 842 N.W.2d 508 (2013) (we
need not address issues that are not dispositive).

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¶23 Here, we conclude that the provost’s decision should be affirmed for
at least two reasons, either of which is sufficient to reject Dykman’s appeal.5

¶24 First, we agree with the provost’s conclusion that Dykman’s current
challenges to the employment classification decision made at the March 2014
meeting and the November 2014 agreement are untimely. In its appellate briefing,
the Board of Regents asserts that the university’s internal policies require
discrimination complaints to be filed with the office of compliance within 300
days of the alleged act of discrimination, and Dykman does not dispute this
limitations period. Here, the allegedly discriminatory act occurred during the
department meeting in March 2014, and Dykman filed his complaint more than
three years after that act. Dykman argues that he did not discover that the
department’s decision was motivated by perceived disability discrimination until
he listened to an audio recording in October of 2017, yet he cites no legal authority

5
Dykman’s appellate briefing purports to address twenty separate issues. We note that
his briefing stretches our appellate rules beyond recognition by including (but not counting for
purposes of the word limit) an argumentative sixteen-page discussion of the “issues presented for
review” in his eighty-two-page opening brief. See WIS. STAT. § 809.19(8)(c).

As for the arguments that we do not otherwise address in this opinion, we specifically
reject Dykman’s arguments about the department’s failure to follow Robert’s Rules of Order
during the March 2014 meeting and the applicability of WIS. STAT. § 12.09 to that meeting. We
likewise reject Dykman’s argument that he identified procedural irregularities in the proceedings
before the office of compliance or the provost that would entitle him to discovery or an
evidentiary hearing on judicial review. See WIS. STAT. § 227.57(1); see also Lake Beulah Mgmt.
Dist. v. DNR, 2011 WI 54, ¶53, 335 Wis. 2d 47, 799 N.W.2d 73. To the extent that Dykman
complains about procedural irregularities in the circuit court, they are immaterial because we
review the provost’s decision, rather than the decision of the circuit court. Myers v. DNR, 2019
WI 5, ¶17, 385 Wis. 2d 176, 922 N.W.2d 47. We also reject Dykman’s assertion that an initial
determination of probable cause issued by the Wisconsin Equal Rights Division in a separate
administrative proceeding is precedential authority that is binding on this court. Finally, to the
extent Dykman advances other arguments in his appellate briefing that are not specifically
commented on, we reject them because they do not warrant a response. See State v. Pettit, 171
Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (we need not consider arguments that are
inadequately supported by factual and legal citations or are undeveloped).

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for the proposition that the university recognizes a discovery rule that would toll
his filing deadline until his subsequent discovery of the recording. Accordingly,
we conclude that Dykman has not demonstrated that the provost’s decision should
be modified or set aside based on an erroneous interpretation of any provision of
law. WIS. STAT. § 227.57(3).

¶25 Second, even if we were to overlook the untimeliness of his
discrimination complaint, Dykman does not demonstrate that there are grounds to
set aside the provost’s determination on the merits. Before explaining this
conclusion, we briefly comment on the scope of our review.

¶26 According to the transcript Dykman provided, the department
identified multiple performance-based reasons during the March 2014 meeting
that supported its decision to change Dykman’s employment classification. 6 In his
appellate briefing, Dykman argues that these performance-based reasons are not
supported by “substantial evidence in the record.” We do not address these and
similar arguments because they are beyond the scope of our current review.
Dykman’s assertion that the department lacked cause to change his employment
classification was not a new issue raised for the first time in the complaint he filed
with the office of compliance—that assertion was the subject of both of Dykman’s
prior grievances. Instead, the new issue raised by his complaint was his assertion
that the department changed his employment classification because of perceived
disability discrimination. We therefore limit our review to that issue.

6
These reasons included the following allegations: “minimally acceptable” student
evaluations; low course enrollments; student complaints relating to Dykman’s teaching and
interactions; Dykman’s unwillingness to revise his syllabus, his unwillingness to accept different
course assignments; and continued poor performance despite clear and consistent feedback.

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¶27 The Board of Regents explains that, to maintain an employment
discrimination claim under the Americans with Disabilities Act, Dykman must
prove that he “has been subjected to an action prohibited [by that Act] because of
an actual or perceived physical or mental impairment ….” 42 U.S.C.
§ 12102(3)(A) (2021). Similarly, the Wisconsin Fair Employment Act prohibits
employment discrimination “because of” a perceived impairment. See WIS. STAT.
§ 111.32(8).

¶28 Here, the provost found that “there is nothing in the [audio]
recording that demonstrates that the action of removing [Dykman’s] Rolling
Horizon appointment was based on perceived disability.” Having thoroughly
reviewed the transcript provided by Dykman, we conclude that it supports the
provost’s finding of fact, and that the facts do not compel a contrary finding. See
WIS. STAT. § 227.57(7). To be sure, during the department’s lengthy discussion
(which, according to Dykman, lasted nearly an hour), there were two isolated
comments referencing a bike accident, and two isolated comments asserting that
Dykman may have suffered neurological difficulties or damage. However, the
transcript supports the provost’s determination that the evidence is insufficient to
show that these comments were a “motivating factor” leading to the decision to
revoke his appointment.

¶29 Turning to the comment made at the meeting that appears to be the
focus of Dykman’s argument—that he “show[ed] the profile of somebody who is
very violence prone”—the transcript unequivocally demonstrates that this
comment was made in the context of concerns about the “welfare of the people

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making these decisions.”7 The provost did not err as a matter of law when he
explained that “a discussion about someone’s potential emotional and physical
response to a negative employment decision is not the equivalent of disability
discrimination.”

¶30 Accordingly, Dykman fails to demonstrate that the facts of record
compel the conclusion that the department made its decision to change his
employment classification because of a perceived disability.

CONCLUSION

¶31 For the reasons stated above, Dykman does not persuade us that
there are grounds to set aside or modify the provost’s decision.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.

7
Specifically, the transcript reveals that committee members discussed an incident in
which Dykman’s behavior was perceived as threatening to the chair of the department, and
another incident in which his behavior was perceived as threatening to a student. One member of
the community expressed concern for the “security” of the chair and associate chair and said, “we
want to know how you’re being protected.”

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