Jеrald H. SCHULTZ, Petitioner-Appellant, v. INDUSTRIAL COILS, INC., Leo A. Daly, Robert Kieffer, James Kieffer, and Art Kleefisch, Defendants-Respondents.
No. 83-1720
Court of Appeals of Wisconsin
Decided July 18, 1985
373 N.W.2d 74
Submitted on briefs July 17, 1985.
For the defendants-respondents the cause was submitted on the brief of James C. Bohl and Quale, Hartmann, Bohl & Evenson of Baraboo.
Before Gartzke, P.J., Dykman, and Eich, JJ.
In reviewing summary judgments, we employ the same analysis as the trial court. Wright v. Hasley, 86 Wis. 2d 572, 579, 273 N.W.2d 319, 322-23 (1979). We first examine the complaint to determine whether a claim has been stated and then the answer to ascertain whether it presеnts a material issue of fact. If they do, we then examine the moving party‘s affidavits to determine whether a prima facie case for summary judgment has been made—in this case a defense which would defeat the plaintiff‘s claim. If it has, we look to the opposing party‘s affidavits to dеtermine whether any material facts are in dispute which would entitle the opposing party to a trial. Grams v. Boss, 97 Wis. 2d 332, 338, 294 N.W.2d 473, 476-77 (1980). If there is no genuine issue of fact, we proceed to decide whether the moving party is entitled to judgment as a matter of law.
Schultz was an employee at Industrial Coils’ Baraboo plant. In 1982 he wrote a lengthy letter to the editor of the local newspaper which was highly critical of the company and several of its officers. The letter was published and, as a result, Schultz was fired. Schultz‘s complaint alleges that his dischаrge was wrongful because (among other things) it was grounded solely upon his exercise of free expression and thus directly contravened the “express public policy of Wisconsin.” Industrial Coils’ answer admitted that Schultz was dis
The complaint, read liberally, states a claim under Brockmeyer, and the answer joins the issue. Industrial Coils filed several affidavits in support of its motion for summary judgment. They set forth, among other things, the content of Schultz‘s letter to the editor and the reasons why, as a result of the letter, the decision was made to terminate his employment. The affidavits, which will be discussed in more detail below, state a prima facie defense, and Schultz filed no affidavits or other proof in opposition. The material facts are not in dispute, and we proceed to consider the legal issues.
Schultz was an employee-at-will; he had no contract of employment with Industrial Coils. Traditionally, in the absence of contrary statutory or contractual provisions, an employer could discharge an employee-at-will for any reason—or for no reason at all—without incurring any liability. Yanta v. Montgomery Ward & Co., Inc., 66 Wis. 2d 53, 63 n. 16, 224 N.W.2d 389, 394 n. 16 (1974). In Brockmeyer, the supreme court carved out a narrоw exception to the traditional rule: “we hold that an employee has a cause of action for wrongful discharge when the discharge is contrary to a fundamental and well-defined public policy as evidenced by existing law.” Id., 113 Wis. 2d at 573, 335 N.W.2d at 840. While the court recognized that the public policy of the state is generally declared in its constitution and statutes, it warned that the concept is both broad and vague, stating:
Given the vagueness of the concept of public policy, it is necessary that we be more precise аbout the con
tours of the public policy exception. A wrongful discharge is actionable when the termination clearly contravenes the public welfare and gravely violates paramount requirements of public interest. The public policy must be evidеnced by a constitutional or statutory provision.
Brockmeyer, 113 Wis. 2d at 573, 335 N.W.2d at 840. The court emphasized the limited nature of the exception, citing “terminations that effectuate an unlawful end“—such as firing an employee for refusal to break the law—as examples of the type of employer conduct which could lead to liability under the rule. Ibid. Finally, the court held that the employee has the burden of proving that the dismissal “violates a clear mandate of public policy“; he or she must establish that the conduct causing the discharge was cоnsistent with a “clear and compelling public policy . . .” Id. at 574, 335 N.W.2d at 840-41.
Schultz contends that his discharge was contrary to the fundamental public policy of Wisconsin as expressed in
Schultz was firеd because he published derogatory remarks about his employer, and the question is whether, because those remarks were intermingled with comment on a public issue, the public policy favoring free expression as expressed in the Wisconsin Constitution would be contravened or violated by Schultz‘s dismissal.
We consider Connick v. Myers, 461 U.S. 138 (1983), to be particularly instructive on the question. There, an assistant district attorney who was unhappy over an upcoming transfer distributed a questionnaire to several of her co-workers soliciting their views on several “office matters“—including office morale, the employees’ level of confidence in their supervisors and the existence of improper political pressure in the office. She was fired for insubordination and sued the district attorney under the
[W]hen [an] employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstancеs, a federal court is not the appropriate forum in which to review the wisdom of a per
sonnel decision taken . . . in reaction to the employee‘s behavior.1
Id. at 147. The court proceeded to balance these First Amendment interests against the interеsts of the employer in promoting efficiency, integrity and appropriate discipline in the office and held that: “The limited First Amendment interest involved here does not require that [the employer] tolerate action which he reasonably believed would disrupt the office, undermine his authority, and destroy close working relationships.” Id. at 154.
Federal courts have long used a “balancing” test in such situations—balancing the interests of the employee as a citizen commenting upon matters of public concern, and the interest of the employer in promoting efficiency in the workplace. See e.g., Pickering v. Board of Education, 391 U.S. 563, 568 (1968). While there is no indication in Brockmeyer that Wisconsin courts must or should engage in such an exercise, we do consider that where, as here, there is an interest at stake with possible public policy implications, we should scrutinize the reasons for the discharge.
One of the affidavits filed by Industrial Coils in support of its motion for summary judgment was that of its personnel manager. He states that he and other company managers felt that if Schultz were permitted to continue in the company‘s employ aftеr writing and publishing such a letter, they would be hindered in any attempts to discipline other employees for similar acts of “disloyalty or insubordination,” and, as a result, “productivity would [suffer].” The plant foreman described in his affidavit the agitated reaction of other employеes
Schultz‘s letter was ostensibly written on a public issue—“the belittling of school teachers” by the Baraboo community—but he took the opportunity to castigate the president of the school board (who was also an officer of Industrial Coils) at great length for the manner in which he and his fellow officers conducted the company‘s аffairs. On the facts of this case, Schultz‘s interest in the free expression of ideas as evidenced by his letter, like the similar interests of the employee in Connick, is limited. Connick recognizes that an employer need not tolerate actions which undermine authority or discipline, or are otherwise disruptive of office routine or employment relations, in the name of a limited free speech interest. Brockmeyer makes the same point: “Courts should proceed cautiously when making public policy determinations. No employer should be subject to suit merely because a discharged employee‘s conduct was praiseworthy or because the public may have derived some benefit from it.” Brockmeyer, at 573-74, 335 N.W.2d at 840. The trial court correctly concluded that Schultz‘s discharge was not actionable.
In so deciding, we do not hold that interference with an employee‘s right to freedom of speech or expression may never form the basis for a cause of action. We hold only that, on the facts of this case, the termination of Schultz‘s employment did not contravene a fundamental and well-defined public policy within the meaning of Brockmeyer.
By the Court.—Judgment affirmed.
DYKMAN, J. (dissenting). The majority concludes that under Brockmeyer v. Dun & Bradstreet, 113 Wis. 2d 561, 335 N.W.2d 834 (1983), we need not determine whether Schultz has a private cause of action for violation of his “free speech” rights under
The public policies recognized in Brockmeyer are reflected in the constitution and statutes of Wisconsin. Id. at 578, 335 N.W.2d at 842. Brockmeyer also holds that “[t]hese declarations of public policy are inherently incorporated into every employment at will relationship.” Id. at 573, 335 N.W.2d at 840. Because our state constitution is an expression of fundamental public policy, Schultz‘s allegations must implicate that policy.
Schultz also argues that, because
Courts of other jurisdictions have interрreted state constitution provisions virtually identical to
Schultz‘s claim for wrongful discharge is recognizable under Brockmeyer, and may be independently actionable under