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  • WisBar News
    December 11, 2015

    Former Forensic Scientist Loses Appeal Against DOJ, his Former Employer

    Three-judge appeals court panel adopts incorporation-by-reference doctrine to conclude that the circuit court properly considered a document outside the pleadings.

    Joe Forward

    Note: A previous appeals court decision in this case was withdrawn.

    Dec. 11, 2015 – A state appeals court has ruled that Eric Soderlund failed to state a free speech retaliation claim against a Wisconsin Department of Justice (DOJ) official, affirming an order dismissing the case on DOJ’s motion for judgment on the pleadings.

    Soderlund claimed that a DOJ deputy director, David Zibolski, retaliated against him in violation of his First Amendment free speech rights by initiating a disciplinary action.

    But in Soderlund v. Zibolski, 2014AP2479 (Dec. 8, 2015), a three-judge panel for the District III Court of Appeals concluded the circuit court properly dismissed the case at the pleading stage.

    Soderlund’s Complaints

    Soderlund was a DOJ employee in the state crime lab for 19 years before resigning in 2012. But the dispute started when Soderlund failed a footwear identification proficiency test in 2006. He filed an internal complaint, claiming he failed because the DOJ was deviating from quality assurance standards for footwear identification.

    In 2008, Soderlund pressed the issue by requesting that the Laboratory Accreditation Board of the American Society of Crime Laboratory Directors investigate the state crime lab to determine whether DOJ was adhering to quality assurance standards.

    The Accreditation Board initially declined to investigate the matter, but agreed to investigate after Soderlund filed a second request. However, it ultimately concluded that the DOJ had properly followed lab policies and procedures.

    In 2009, Soderlund asked the quality assurance coordinator for DOJ’s crime labs to investigate his claims of unauthorized deviation from quality assurance standards.

    The crime labs’ administrator responded, saying Soderlund was wasting an extraordinary amount of DOJ personnel time on the dispute. He ordered Soderlund to stop making requests and said DOJ personnel would no longer respond to him.

    In 2010, Soderlund filed a claim with the Equal Rights Division (ERD) of the Wisconsin Department of Workforce Development (DWD). ERD dismissed the complaint.

    When a new crime labs administrator was appointed in 2011, Soderlund renewed his previous requests for an internal investigation on quality assurance standards. He also said that for years, the DOJ treated him unfairly and questioned his competence.

    The new administrator said previous grievance procedures were followed. Soderlund persisted. He said his efforts were derailed by a threat of disciplinary action. He sent more letters to the Accreditation Board seeking review, and notified state legislators.

    In 2012, Soderlund received a letter from David Zibolski, deputy director of DOJ’s Division of Law Enforcement Services. Zibolski informed Soderlund that he was being investigated for possible violations of DOJ work rules.

    Zibolski determined that Soderlund committed 54 violations of six DOJ work regulations. DOJ set a predisciplinary hearing where Soderlund could state his case.

    Before the hearing, Soderlund resigned, fearing loss of retirement benefits if terminated. He attempted to rescind the resignation the next day, but his request was denied.

    Dispute Continues in Court

    Soderlund attempted to commence a lawsuit pro se in August 2012. He included a letter that he sent to Zibolski, and a letter that Zibolski sent to him. But the case did not move until Soderlund hired a lawyer and the case was properly commenced in circuit court.

    Soderlund attempted to argue that Zibolski retaliated against him in violation of his First Amendment right to free speech. He made his claim under 42 U.S.C. section 1983.

    The Marathon County Circuit Court dismissed the claims, granting judgment on the pleadings. The court concluded that Soderlund’s speech was not constitutionally protected, relying on correspondence letters that Soderlund filed with the court.

    Official Capacity

    On appeal, Soderlund argued that the court improperly dismissed the case.

    Soderlund had filed the complaint against Zibolski in his individual and official capacities, asking for compensatory and punitive damages. It did not state a prayer for prospective relief but sought “such other and further relief as the court deems just.”

    The three-judge panel noted that state officials, as individuals in their official capacity, cannot be sued for damages under 42 U.S.C. section 1983. And since Soderlund only asked for damages, his case was properly dismissed for failure to state a claim.

     “[T]he circuit court held that Soderlund’s failure to demand any prospective relief in his complaint, such as reinstatement, precluded Soderlund from suing Zibolski in his official capacity,” wrote Res. Judge Thomas Cane. “We agree under the unique circumstances presented here, where the type of relief demanded is essential to the claim.”

    The panel noted that Soderlund could have moved for leave to amend his complaint to insert a claim for prospective relief, but he never did. “Accordingly, we reject any argument that Soderlund’s complaint could have been deemed amended following trial.”

    Incorporation-by-Reference Doctrine

    Soderlund argued that the court should have converted Zibolski’s motion for judgment on the pleadings into a motion for summary judgment, allowing him to present more evidence, because the circuit court relied on a document outside the pleadings.

    That is, the court considered a letter that was in the record but had been filed before the lawsuit commenced, when Soderlund tried to file the lawsuit without an attorney.

    “We adopt the incorporation-by-reference doctrine and reject Soderlund’s argument,” Res. Judge Cane wrote. Under that exception, Judge Can explained, courts can consider separate documents outside the pleadings without converting it to a motion for summary judgment “if the document was referred to in the plaintiff’s complaint, is central to his or her claim, and its authenticity has not been disputed.”

    In this case, those requirements were satisfied, the panel noted. “Under these circumstances, Soderlund cannot plausibly contend he lacked notice of his letter’s content or Zibolski’s desire that the court consider it,” Judge Cane wrote.

    No Free Speech Violation

    Finally, the panel ruled that Soderlund could not maintain a free speech retaliation claim because Soderlund’s right to make complaints against DOJ was not protected.

    The panel noted that government employees are not protected when speaking as employees on personal interest matters, rather than citizens on matters of public concern.

    Soderlund, the panel ruled, “spoke in the capacity of a public employee, rather than as a citizen, and he spoke about matters related to a personal employment dispute, rather than about matters of public concern,” Judge Cane wrote.

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