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 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

2

¶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),1and 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.
No. 2020AP1256

3

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 performancebased 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 
No. 2020AP1256

4

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.”
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 grievance “were related to the instances addressed and 

resolved” in the November 2014 agreement, and the remaining instances postdating 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.
No. 2020AP1256

6

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.
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 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 
No. 2020AP1256

8

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 
No. 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 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 
No. 2020AP1256

10

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).4If 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).
No. 2020AP1256

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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).
No. 2020AP1256

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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.6In 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.
No. 2020AP1256

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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 
No. 2020AP1256

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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.”