Wisconsin Court of Appeals rules internal photocopy costs can be recovered.

Byline: David Ziemer

A Dec. 16 Wisconsin Court of Appeals opinion resolves two issues of first impression in Wisconsin:

Telling an employee that he will be fired if he doesn't resign is not a constructive discharge, assuming that grounds exist for termination; and

A prevailing party in litigation can recover internal photocopy expenses under sec. 814.04(2), even though it did not actually incur any expenses.

Benjamin W. Mercer was the human resources director for the city of Fond du Lac. After pornography was discovered on his work computer, he was told he could resign or he would be terminated. Mercer resigned.

He later filed suit against the city, demanding compensation and reinstatement. Fond du Lac County Circuit Court Judge Peter L. Grimm granted summary judgment in favor of the city, and awarded costs. Included in the costs were photocopy charges submitted by the City attorney.

Mercer appealed, but the Court of Appeals affirmed, in an opinion by Judge Harry G. Snyder.

Constructive discharge

Relying on Seventh Circuit precedents, the court held that Mercer was not constructively discharged.

For an employer's actions to rise to the level of a constructive discharge, they must be so intolerable that resignation constitutes a fitting response. But the court found that was not present in this case.

Mercer does not point to any instances of harassment, nor does he dispute that termination would have been an available means of discipline for criminal activity under the terms of the personnel policy, the court explained. We ascertain no coercion or harassment provoking Mercer's resignation.

Costs

The court also affirmed the award of $265.68 to the city for photocopy expenses associated with the litigation.

Section 814.04(2) provides, in relevant part, for the reimbursement of, amounts actually paid out for certified and other copies of papers and records in any public office; postage, photocopying, telephoning, electronic communications, facsimile transmissions, and express or overnight delivery.

Mercer argued the photocopy charges were an internal business expense, and thus do not fit the definition of costs actually paid out.

But the court rejected this argument, reasoning, First, the statute does not say that photocopy costs must be paid out to a third party before they can be claimed by a defendant. Second, the phrase 'actually paid out' modifies the amounts paid 'for certified and other copies of papers and records in any public office.'...