### COURT OF APPEALS DECISION DATED AND FILED November 4, 2021

Sheila T. Reiff Clerk of Court of Appeals NOTICE
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See W IS . S TAT . § 808.10 and R ULE 809.62.

Appeal No. 2020AP1256 Cir. Ct. No. 2019CV2237 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT IV

B ENJAMIN M. D YKMAN ,
P ETITIONER - A PPELLANT ,

V .
B OARD OF R EGENTS OF THE U NIVERSITY OF W ISCONSIN ,
R ESPONDENT - R ESPONDENT .

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 W IS . S TAT . R ULE 809.23(3).No. 2020AP1256

2 ¶ 1 PER CURIAM. Benjamin Dykman seeks judicial review of a
decision by th e p rovost of the University of Wisconsin, which affirmed a decision by the university’s o ffice of c ompliance, which den ied Dykman’s disability discrimination complaint. In this appeal, Dykman purports to assert up to twenty separate issues for our review, and he makes wide

- rangin g allegations of improp riety against the u niversity ’s d epartment of p sychology, the o ffi ce of

c ompliance, the p rovost, and the circuit court . At bottom, Dykman asks us to
conclude that th e d epartment 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 d epartment in
November 2014 to resolv e an earlier grievance he file d based on the same adverse employment decision and nearly identical facts. We reject Dykman’ s arguments and affirm the circuit court, which af firmed the p rovost’s decision.

BACKGROUND

¶ 2 This is a review of an agency action decision purs uant to W IS

. S TAT

. § 2 2 7.52 (2019

- 20), 1 and o ur review is limited to the p rovost’s decision denying Dy kman’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 u niversity ’s
d epartment of p sychology for approximately eighteen years until his retirement in
December 2017. As of 2014, he had a one

- year “rolli ng h orizon” appoi ntment.

1 All references to the Wisconsin Statutes are to the 2019

- 20 version.No. 2020AP1256

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

com mitments beyond that date.

¶ 4 In March 2014, the d epartm ent revoked Dykman’s rolling horizon

a ppointment and changed his employment classification t o a one

- year , fixed

- term renewable appointment

. This decision to change Dykman’s employmen t classification was made during a closed session of the d epartment’s executive committee, which we refe r to as the “March 2014 meeting. ” The d epartment communicated its decision to Dykman by letter, providing specific performance

based reasons for the de cision.

¶ 5 Dykman promptly challenged the revocation of his rolling horizon appointment by filing a grievance with the u niversity’s a cademic s taff a ppeals

c ommittee (ASAC)

. For ease of reference , we refer to this as Dykman’s “first grieva nce .” In his first grievance, Dykman contested the process that was used
and conclusions that were re ached during the March 2014 meeting

. Among other things, he argued that the performance

- based reasons given by the d epartment were “unfounded or grossly exaggerated ” and did not “ warrant a change ” in his appoin tment. He also asserted that “[s]erious, emotionally charged, unfounded
defamation ” of his character occ u rred at the March 2014 meeting, including a comment by one colleague tha t a second colleague said that Dykman “ fit the profil e of a very dangerous person.”

¶ 6 Several months later, the d epartment’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 andNo. 2020AP1256

4 enter i ng into a “binding retirement agreement” with the d epartment. Following
th at vote, Dykm an 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 unt il [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 I n 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

c hallenge d th e performance

- based reasons given for changing his employment classification during the March 2014 meeting

. He also sought to a void his obligation s under the November 2014 agreement (that is, what he referred to as his upcoming “forced retirem ent” ), 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 wrongdo ing and defamation of character ” occurred during the November 2014 meeting , and he demanded that certain colle agues be discip lined for their

comments

. A gain, a mong the alleged defamatory remarks listed in Dykman’s second grievance was the assessment that he “fit the profile of a very dangerous person.”No. 2020AP1256

5 ¶ 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 gri evance “ were related to the instances addressed and
resolved ” in the November 2014 agreement, and the remaining inst ances post

dating November 2014 were “ non

- employment issues.”

¶ 9 In December 2017, Dykman sought reconsideration of ASAC’s
dismissal of his s econd grievance based on “ new evidence

. ” This purported new evidence consisted of a n 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 decision s dismissing his second grievance and
den ying his request for reconsideration

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

¶ 11 Then, in February 2018, Dykman filed a complaint with the

u niversity ’s o ffice of c ompliance , 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
coll eagues 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 reco rding

. T here are reas ons to question the completeness and accuracy of the transcript. Not only is it not certified as having been prepared by a court re porter or other professional, but also, whoever prepared it apparently omitted some portions of the discu ssion 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.No. 2020AP1256

6 suffered “neurological ” difficulties or damage after a bike accident, demonstrated that his appointment had been revoked due to a perceived disability. Accordin g to Dykman, he should not be bound by the Nove mber 2014 agreement bas ed on the following string of propositions : if the d epartment had not subje cted him to perceived disability discrimination during the March 2014 meeting, the committee would not have revoked his rolling horizon appointment, he would not have file d 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 l engthy formal investi gation , the o ffice of c ompliance denied Dykman’s disability claim

. Among other things, it determined that the
d epartment did not coerce Dykman into entering the November 2014 agreement , that th e November 2014 agreement was legally binding, and that Dykman was estopped from challen ging the agreement after receiving its full benefit

. 3 The

o ffice of c ompliance also determined that Dykman’s challenges to the March 2014
revocation decision and the November 2014 agreement we re 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 o ffice of c ompliance determined that Dykman failed to prove that the
d epartment changed his employment classification due to a perceived disability. After “multiple reviews” of the audio recording , the o ffice of co mpliance found
that the d epartment revoked D ykman’s appointment due to his history of poor teaching performance, low enrollments, and unaccep table treatment of students. It

3 The p rovost determined that the agreement resulted in a salary increase in Dykman’s final three years of employment and increased b enefits upon retirement.No. 2020AP1256

7 found that the discussion during the meeting of his allegedly erratic and threatening behavior was related to safety concerns about how the d epartment would communicate the adverse e mployment d ecision to Dykman.

¶ 13 Dykman app ealed to the p rovost, who upheld the decision by the

o ffice of c ompliance

. T he p rovost emphasized that Dykman had been aware that some members of the committee perceived him as dangerous even bef ore 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 p rovost found that the recording demonstrates that the “primary concern” motivating the revocation
decision “related to [Dykman’s ] history of academic perform ance

- related

concerns. ” T he p rovost explained that “a discussion about someone’s potential emotional and physical response to a negative employment decision is not the equivalent of di sability 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 responde nt

. See
W IS

. S TAT

. § 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 W IS

. S TAT

.

c h. 227 petition for judicial review, we review the decision made by the administrative agency rather than the decision rendered by t he circuit court. Myers v. DNR , 2019 WI 5, ¶17, 385 Wis. 2d 176, 922 N.W.2d 47. We begin ourNo. 2020AP1256

8 discussion by addressing a thresh old issue related to the contents of the
administrative record. We then address the merits of Dykma n’s petition

.

I

¶ 16 W ISCONSIN S TAT

. c h

. 227 judicial review is normally confined to the record compiled by the agency. W IS

. S TAT

. § 227.57(1). In some circumstances , a court may consider evidence outside the administrative record for limited
purposes

. Id

. ; see also W IS

. S TAT

. § 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 occurre d during the March 2014 meeting, and h e 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 oppose d this motion. Dykman then notified the circuit court of his belief that the administrative record

was “ incomplete. ” See W IS

. S TAT

. § 227.55 (1) (provid ing that administrative agencies are to submit the “ entire record ” to the reviewing court, and the
revi ewing court “ may require or permit subsequent corrections or additions to the
record when deemed desirable ” ). The circuit court ultimately dismissed Dykman’s petit ion without expressly deciding his motion seeking discovery and an evidentiary hearing , and without addressing his assertion that materials were missing from the admi nistrative record

. ¶ 18 P rior to filing his opening brief in this court, Dykman filed a motion asking this court to supplement the administrative record. He argued that t he

o ffice of c ompliance and the p rovost considered certain materials that were notNo. 2020AP1256

9 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 stat ed 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 Dy kman’s assertion that
additional material s should be included in the administr ative 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,” r ather than remanding the

case to the circuit court for supplement ation . The clear implicat ion of our order was that, if Dykman continued to maintain that c ertain materials should have been
included in the administrative record, he should include factual and legal arguments to that effe ct in his appellate briefing.

¶ 20 It is apparent that Dykman mis construe d our order. Based on his appellate submissions, h e took the position that we granted his motion to supplement the record

. W ithout further argument, he filed an appendix containing
a number of materials that are not contained in the administra tive record

. ¶ 21 In the course of cons idering how to address Dykman ’s
mis constru ction of our order and his submission of documents not contained in the
administrative record , we review ed 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 p rovost’s decision and are, on their face, inappropriate candi dates forNo. 2020AP1256

10 record supplementation

. It is not appare nt whether other materials were actually
submitted to the o ffice of c ompliance or the p rovost during the administrative proceedings. Nevertheless, h aving reviewed these mat erials , we can confidently

stat e that none of these materials would alter any of the concl usions we reach
below.

II

¶ 22 We now turn to the p rovost’s decision. On review, we will affirm
the decision “[u]nless [we] find[] a ground for setting aside, modifying, remanding

o r ordering agency action.” W IS

. S TAT

. § 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 a n agency’s conclusi ons of law de novo, Tetra Tech EC,
Inc. v. DOR , 2018 WI 75, ¶8 4 , 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 i nterpreted a provision of law and a correct interpretation compe ls 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 p rovost’s experience, technical competence, and specialized knowledge, particularly in matters involving
u niversity personnel decisions. Dykman disagrees. We need not decide whether we would afford due deference in this case becau se doing so would not alter our conclusions. See Barrows v. Am erican 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 )

.No. 2020AP1256

11 ¶ 23 Here, we conclude that the p rovost’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 p rovost’s conclusion that Dykman’s current challenge s to the employment classification decision made at the March 2014 meeting and the November 2014 agreement are untimely. I n its appellate briefing , the Board of Regents asserts that the u niversity’s internal policies require discrimination compla ints to be filed with the o ffice of c ompliance within 300 days of th e alleged act of discrimination, and Dykman does not dispute this limitations period. Here, the alleged ly discriminatory act occurred during the
d epartment meeting in March 2014, and Dykm an filed his complaint more than three years after that act. Dykman argues that he did not disc over that the
d epartment’s decision was motivated by perceived disability discrimination until
he listened to an audio rec ording in October of 2017, yet he cite s no legal authority

5 Dykman’s appellate brief ing purports to address twenty separate iss ues . We note that his brief ing stretches our appellate rules beyond recognition by including (but not counting for purposes of th e word limit) an argu mentative sixteen

- page discussion of the “issues presented for review” in his eighty

- two

- page opening brief. See W IS

. S TAT

. § 809.19(8)(c)

. As for the arg uments that we do not otherwise addres s in this opinion , we specifically reject Dykman’s arguments about the d epartment’s failure to follow Robert’s Rules of Order during the March 2014 meeting and the applicability of W IS

. S TAT

. § 12.09 to that meeting . We likewise reject Dykman’s argument that he identified procedural irregularitie s in the proceedings before the o ffice of c ompliance or the p rovost that would entitle him to discovery or an evidentiary hearing on judicial review

. See W IS

. S TAT

. § 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 cir cuit court, they are immaterial because we
re view the p rovost’s decision, rather than the decision of the circuit court. Myers v. DNR , 2019 WI 5, ¶17, 385 Wis. 2d 1 76, 922 N.W.2d 47. We also reject Dykman’s assertion that a n 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, t o 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) (w e need not consider arguments that are inadequately supported by factual and legal citations or are undeveloped)

.No. 2020AP1256

12 for the proposition that the u niversity recogniz es 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 p rovost’s deci sion s hould
be modified or set aside based on an erroneous i nterpretation of a ny provision of
law. W IS

. S TAT

. § 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 p rovost’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, t he d epartment 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 argue s that the se performance

- based reasons are not supported by “substantial evidence in the record.” We do not address t hese and
similar argument s because they are beyond the scope of our curr ent review. Dykman ’s assertion that the d epartment lacked cause to change his employment
classification was not a new issue raised for the first time in the complaint he filed
wi th the o ffice of c ompliance

— that assertion was the subject of both of Dykman’s prior grievances. Instead , the new issue raised by his complaint was his as sertion
that the d epartment 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.No. 2020AP1256

13 ¶ 27 The Board of Regents explains that, to maintain a n employment
discrimination claim under the Americans w ith Disabilities Act, Dykman must prove that he “ has been subjected to an action prohibited [by th at 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 W IS

. S TAT

. § 111.32(8).

¶ 28 Here, the p rovost found that “there is nothing in the [audio] recording that demonstrates that the actio n 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
p rovost’s finding of fact , and that the facts do not compel a contrary finding. See
W IS

. S TAT

. § 227.57(7). To be sure, during the d epartment’s lengthy discussion (which, according to Dykman, lasted nearly an hour) , there were two isolated comments referencing a bike accident , and two isolated comment s asserting that Dy kman may have suffered neurological difficulties or damage

. However, the transcript supports the p rovost ’s determination that the evidence is insufficient to
show that these comments were a “motivating factor” leading to the decis ion 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 some body who is very violence prone ”

— the transcript unequivocally demonstrates that this

comment was made in the context of concerns about the “welfare of th e peopleNo. 2020AP1256

14 making these decision s .” 7 The p rovost 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 disabil ity discrimination.”

¶ 30 Accordingly , Dykman fails to demonstrate that the facts of record compel the conclusion that the d epartment made its decision to change his employment classification because of a per ceived disability

.
CONCLUSION

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

By the Court.

— Order affirmed.
This opinion will not be published. See W IS

. S TAT

. R ULE 809.23(1)(b)5

.

7 Specifically, the transcript reveals that committee members discussed an incident in which Dykman’s behavior was perceived as t hreatening to the chair of the d epartment, and another incident in which his behavior was perceived as threatening to a student. One member of the community expressed co ncern for the “security” of the chair and associate chair and said , “we want to know how you’re being protected.”