Ronald Clayton v. WERC

OFFICE OF THE CLERK
WISCONSIN COURT OF APPEALS
110 EAST MAIN STREET, SUITE 215
P.O. BOX 1688
MADISON, WISCONSIN 53701-1688
Telephone (608) 266-1880
TTY: (800) 947-3529
Facsimile (608) 267-0640
Web Site: www.wicourts.gov
DISTRICT I
November 16, 2021
To:
Hon. Timothy M. Witkowiak
Circuit Court Judge
Electronic Notice
John Barrett
Clerk of Circuit Court
Milwaukee County
Electronic Notice
Steven C. Kilpatrick
Electronic Notice
Ronald Clayton
8229 W. Concordia Ave.
Milwaukee, WI 53222
Brian Keenan
P.O. Box 7857
Madison, WI 53707-7857
You are hereby notified that the Court has entered the following opinion and order:
2019AP1981 Ronald Clayton v. Wisconsin Employment Relations
Commission (L.C. # 2019CV1217)
Before Brash, C.J., Donald, P.J., and Dugan, J.
Summary disposition orders 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).
Ronald Clayton, pro se, appeals from an order of the circuit court that affirmed a decision
of the Wisconsin Employment Relations Commission (“the Commission”). Based upon our
review of the briefs and record, we conclude at conference that this case is appropriate for
summary disposition. See WIS. STAT. RULE 809.21 (2019-20).1 The order is summarily
affirmed.
1 All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.

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Clayton worked for the Department of Corrections (“Corrections”), as a teacher at the
Milwaukee Secure Detention Facility. On September 17, 2018, Clayton was advised that he was
discharged, effective immediately, for violations of workplace rules. While being so informed,
Clayton asked if he could tender his resignation; he was told yes. Clayton thus submitted a
resignation letter on September 18, 2018, which was accepted on September 19, 2018.
On September 24, 2018, an attorney submitted a grievance on Clayton’s behalf, see WIS.
STAT. § 230.445, to the Division of Personnel Management, which is under the Department of
Administration (“Administration”). On September 27, 2018, a director from Administration
emailed Clayton and his attorney to inform them that the grievance had been filed incorrectly—it
was designated as a “Step 2” grievance even though there had not yet been a “Step 1” grievance.
Further, the grievance had not been submitted to Corrections as required, so the director provided
the correct email address for submitting the grievance.2 Finally, the director informed Clayton
that, while a grievant may be assisted by a representative, the representative cannot file a
grievance on the employee’s behalf. The director sent a second email the next day, reminding
Clayton and his attorney that Clayton was required to file a Step 1 grievance himself and again
providing the proper email address for Corrections.
On September 28, 2018, Clayton physically mailed his grievance form to the Division of
Personnel Management, which marked it received on October 1, 2018. On October 2, 2018, the
director from Administration sent Clayton an email that acknowledged receipt of the grievance;
2 Counsel submitted the grievance via email to DOADPMGrievance@wisconsin.gov. The
director’s email advised that the necessary email address was DOCBHRGrievances@wisconsin.gov.

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however, the email once again told Clayton that the grievance had to be filed with Corrections.
Clayton later filed his Step 1 grievance with Corrections on October 8, 2018.
Corrections denied the grievance on October 28, 2018, for two reasons. First, it said that
Clayton was attempting to challenge a discharge, but he had actually resigned, and resignations
could not be the subject of a grievance. Second, it found that the grievance was untimely.
Clayton filed a Step 2 grievance to challenge Corrections’ decision, but that was also denied.
Clayton then filed an appeal with the Commission on November 12, 2018. See WIS.
STAT. §§ 230.44(1)(c), 230.445(3)(c)1. Corrections filed a motion to dismiss. The Commission
granted the motion, concluding it was required by law to dismiss the appeal because the
grievance had been untimely filed with Corrections. The Commission also denied Clayton’s
subsequent petition for a rehearing. Clayton then sought judicial review from the circuit court.
See WIS. STAT. §§ 230.44(4)(bm), 227.57. The circuit court upheld the Commission’s decision,
and Clayton appeals.
“In deciding an appeal from a circuit court’s order affirming or reversing an
administrative agency’s decision, we review the decision of the agency, not that of the circuit
court.” Mineral Point Unified Sch. Dist. v. WERC, 2002 WI App 48, ¶12, 251 Wis. 2d 325,
641 N.W.2d 701; WIS. STAT. § 227.57(11). We are not bound by an agency’s determinations on
questions of law. See Wehr Steel Co. v. DILHR, 106 Wis. 2d 111, 117, 315 N.W.2d 357 (1982).
The burden of proof is generally on the party seeking to overturn the agency’s action. See
Harnischfeger Corp. v. LIRC, 196 Wis. 2d 650, 661, 539 N.W.2d 98 (1995), abrogated on other
grounds by Tetra Tech EC, Inc. v. DOR, 2018 WI 75, 382 Wis. 2d 496, 914 N.W.2d 21.

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There is no dispute that WIS. STAT. ch. 230 controls here, or that Clayton needed to
utilize the grievance process therein. To begin the grievance process, “an employee shall file a
complaint with the employee’s appointing authority … no later than 14 days after the employee
becomes aware of, or should have become aware of, the decision that is the subject of the
complaint.” See WIS. STAT. § 230.445(3)(a)1. (emphasis added). Clayton’s appointing authority
was Corrections, not Administration or the Division of Personnel Management. See WIS. STAT.
§ 230.03(4) (“‘[A]ppointing authority’ means the chief administrative officer of an agency unless
another person is authorized to appoint subordinate staff in the agency[.]”). “If an employee
does not file a complaint or an appeal by an applicable deadline … the employee waives his or
her right to appeal the adverse employment decision[.]” Sec. 230.445(2). Further, “[i]f a
procedural requirement was not met by the employee … the [C]ommission shall dismiss the
appeal.” Sec. 230.445(3)(c)1. (emphasis added).
Clayton was made aware of his discharge on September 17, 2018, meaning the latest he
could have filed his grievance with Corrections was October 1, 2018.3 On appeal, Clayton
argues that while Corrections and the Commission “are stating that the papers were not received
until October 8th … [this] is not true.” He contends that his grievance paperwork was delivered
on October 1. However, although the tracking information Clayton provided indicates that the
mail he sent was delivered to its destination on October 1, 2018, the record reflects that the
destination was the Division of Personnel Management, not Corrections. Thus, Clayton has not
3 Because the Commission deemed the grievance untimely, it made no determination of whether
Clayton actually had a valid grievance to make. We note that even if Clayton could challenge his
resignation, he submitted his resignation on September 18, 2018, and it took effect on September 19,
2018; thus, the deadline for filing a grievance from his resignation was, at the latest, October 3, 2018, and
his October 8, 2018 filing was untimely in any event.

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established that he timely filed his grievance with the agency constituting his appointing
authority. See WIS. STAT. § 230.445(3)(a)1.
Clayton makes three additional arguments on appeal. First, he notes that “the paperwork
was never sent back to me indicating anything wrong.” This argument is not developed, nor is it
supported by any legal authority. We need not consider such arguments. See State v. Pettit, 171
Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992). In any event, though nothing was
physically returned to Clayton, he was notified at least three times of deficiencies in his filing by
the agency to which he incorrectly submitted the documents, and he was supplied with the proper
email address for filing his grievance with Corrections.
Second, Clayton also argues that the attorney he retained “was working with the DOC
beyond October 1st.” This argument is also undeveloped. See id. Clayton does not indicate
what “working with the DOC entailed” nor how it cures his untimely filing.
Finally, Clayton makes note of a “new development” that happened at the detention
facility; a deputy warden and captain involved in investigating the circumstances leading to
Clayton’s discharge have recently come under investigation. He asserts that “the fact that both
seem to be under scrutiny seems very ironic, and suspicious.” This is both irrelevant and, like
his other assertions, wholly undeveloped. See id.
In short, Clayton has not shown that the Commission made any error of law when it
dismissed his appeal for noncompliance with procedural requirements. See WIS. STAT.
§ 230.445(3)(c)1.
Upon the foregoing, therefore,

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IT IS ORDERED that the order is summarily affirmed. See WIS. STAT. RULE 809.21.
IT IS FURTHER ORDERED that this summary disposition order will not be published.
Sheila T. Reiff
Clerk of Court of Appeals