Augustine v. Anti-Defamation League of B'Nai B'Rith

• Decision Date: 18 January 1977
• Docket Number: No. 75--223,ANTI-DEFAMATION,75--223
• Parties: , 15 Fair Empl.Prac.Cas. (BNA) 66 Allan E. AUGUSTINE, Appellant, v.LEAGUE OF B'NAI B'RITH and Ralph Barnes, Respondents.
• Court: Wisconsin Supreme Court

Page 547

249 N.W.2d 547

75 Wis.2d 207, 15 Fair Empl.Prac.Cas. (BNA) 66

Allan E. AUGUSTINE, Appellant, v. ANTI-DEFAMATION LEAGUE OF B'NAI B'RITH and Ralph Barnes, Respondents.

No. 75--223.

Supreme Court of Wisconsin.

Argued Nov. 3, 1976.

Decided Jan. 18, 1977.

David L. Walther, Milwaukee (argued), for appellant; John Sundquist and Walther & Halling, Milwaukee, on the brief.

Robert H. Friebert, Milwaukee (argued), for respondent Anti-Defamation League of B'Nai B'Rith; Thomas W. St. John and Friebert & Finerty, Milwaukee, on the brief.

HEFFERNAN, Justice.

The plaintiff, Allan E. Augustine, Prior to being discharged on June 4, 1974, was an employee of Radio Station WOKY in Milwaukee, owned by Bartell-Media Corporation. The discharge arose out of his handling of a talk show in which members of a group calling themselves the National Socialist White People's Party, hereinafter guests, used various epithets in respect to Jews and blacks. Jews were described as being dealers in smut, pornography, and crime, of being parasites, of being devious and characterized as abscesses, maggots, and beasts. Blacks were accused of being lazy and primitive. Augustine failed to push the 'panic button,' which would have deleted the objectionable material from the broadcast. He also failed to activate the disclaimer tape which was available for use at the end of the broadcast to state that the views expressed were those of the talk show guests and not of the station management.

Subsequently, numerous complaints were received by the station objecting to the way the program was handled and to the content of the talk show. A number of individuals called the station manager the next day to voice their objections. One of the callers was Saul Sorrin, Regional Director of the Anti-Defamation League of B'nai B'irth. Following the calls from Sorrin and from Professor Burke of the English Department of the University of Wisconsin in Milwaukee, Ralph Barnes, the general manager of Radio Station WOKY, listened to the tapes of the program of the preceding evening and concluded that Augustine handled the program in a manner inconsistent with the professional code of the National Association of Broadcasters. He directed that Augustine be fired. Augustine's employment was terminated the next day.

In the adverse examination of Barnes, which was stipulated to be a part of the record on the motion for summary judgment, Barnes made the statement:

'I made that decision that the show was--indeed the way Mr. Augustine handled the show was in violation to commitment to the Code. Then I made the decision to dismiss him.'

As a consequence of the discharge, Augustine commenced an action for damages against the ADL and Ralph Barnes.

As his first cause of action, he alleged that his discharge was caused as a result of the complaint brought by the ADL and that such discharge was in violation of sec. 111.325, Stats., a portion of the State of Wisconsin's Fair Employment Act.

As a second cause of action, he also alleged that the complaint made by the ADL in respect to the program interfered with his employment contract with his employer, the Bartell-Media Corporation, the corporation which owned Radio Station WOKY.

A third cause of action was alleged for conspiracy--that the defendants, Barnes and the ADL, combined by concerted action for the purpose of injuring the plaintiff in his profession and that such concerted action resulted in the breach of Augustine's employment contract with Bartell-Media.

Each of these causes of action as to the ADL was dismissed by the trial court--the first, following a demurrer to the complaint, and, the second and third, following an order granting the defendant ADL's motion for summary judgment. The order sustaining the defendant ADL's demurrer to the first cause of action was entered on November 18, 1974, and the judgment on the entire action was entered on May 5, 1975. A notice of appeal in respect to the judgment was filed in the circuit court on July 9, 1975. That notice appealed from the whole of the judgment entered in May and also sought 'review from that portion of the Order made and entered under date of November 18, 1974, which sustained the demurrer to plaintiff's first cause of action.'

This appeal concerns only Augustine's action against the Anti-Defamation League. Barnes answered Augustine's complaint, and that portion of the case is pending in the circuit court.

The initial question presented is whether the order which sustained the demurrer to the first cause of action and which was not separately appealed from within the time provided by the statutes for an appeal from an appealable order can be reviewed as an intermediate order upon appeal from the final judgment. We conclude that the order sustaining the demurrer may be reviewed on the appeal from the judgment.

While the defendant ADL, which objects to the jurisdiction of this court to now hear the review of the order on demurrer, correctly points out that, under sec. 274.33(3), Stats., the order on demurrer constituted an appealable order and could have been brought separately, in overlooks the effect of sec. 274.34. Sec. 274.34 provides:

'274.34 Appeals, intermediate orders may be reviewed. Upon an appeal from a judgment, and upon a writ of error, the supreme court may review any intermediate order which involves the merits and necessarily affects the judgment, appearing upon the record.'

That situation was considered by this court in State ex rel. Star Prairie v. St. Croix County, 83 Wis. 340, 53 N.W. 698 (1892). The court held that, although a separate appeal could have been taken on the order on the demurrer, such order could be reviewed upon an appeal from a final judgment after the time for separate appeal on the demurrer had run. The court said:

'It is objected by respondent that this court cannot consider the correctness of the rulings of the circuit court upon the demurrer, because no appeal was taken directly from the order thereon, and that the time for an appeal therefrom has expired. The objection is not tenable, because upon appeal from final judgment the question as to the correctness of the order upon the demurrer may be reviewed.' (at 344, 53 N.W. at 699)

Accordingly, the order which sustained ADL's demurrer to the first cause of action, together with the final judgment which dismissed as to ADL the second and third causes of action following the order for summary judgment, is before us on this appeal. ¹

In the first cause of action, the plaintiff alleged that he was discriminated against in violation of the Wisconsin Fair Employment Act, sec. 111.31 ff., and also was denied his right of free speech under the Constitutions of the United States and of the State of Wisconsin. We dispose of the latter contention first.

We see nothing in the alleged complaint that states a cause of action against the defendant ADL for abridging Augustine's freedom of speech. Construing the complaint most liberally to state a cause of action, if at all possible, the most that can be gleaned in that respect is that Augustine claims to have been deprived of his 'right' to be employed and paid by the Bartell-Media Corporation for the exercise of his (Augustine's) First Amendment rights. No authority has been cited by the plaintiff that tends to establish that a person's right of free speech is infringed by the termination of his employment as a radio announcer on a talk show or that the termination is actionable on First Amendment grounds.

Nor do we find that any cause of action was stated under the Fair Employment Act. The Fair Employment Act, sec. 111.325, Stats., provides:

'111.325 Unlawful to discriminate. It is unlawful for any employer, labor organization, licensing agency or person to discriminate against any employe or any applicant for employment or licensing.'

Sec. 111.32(5)(a), Stats., provides '(5)(a) 'Discrimination' means discrimination because of age, race, color, handicap, sex, creed, national origin or ancestry, by an employer or licensing agency individually or in concert with others, against any employe or any applicant for employment or licensing, in regard to his hire, tenure or term, condition or privilege of employment or licensing and by any labor organization against any member or applicant for membership, and also includes discrimination on any of said grounds in the fields of housing, recreation, education, health and social welfare as related to a condition or privilege of employment.'

The trial judge concluded that the Fair Employment Act, although to be liberally construed, concerned the relationship between employers and employees. Since the Anti-Defamation League was not the plaintiff's employer, he held the statute inapplicable. We do not find it necessary to resolve that question in affirming the order on the demurrer, for the trial judge also found that the conduct of ADL was not embraced within the statutory definition of the word, 'discrimination'--that no conduct of the ADL was related to the 'age, race, color, handicap, sex, creed, national origin or ancestry' of either the guests on the program or of Augustine.

On this appeal it is argued, however, that the statute indeed applies because 'discrimination,' as defined in sec. 111.32(5)(a), Stats., includes discrimination because of 'creed.' It is asserted in the plaintiff's brief, although it is not alleged in the complaint, that the guests, who were members of the National Socialist White People's Party, were organized 'to propagate a system of belief or opinion.' Augustine argues that a system of belief or opinion constitutes a 'creed' and is therefore embraced in the Fair Employment Act.

Webster's Third New International Dictionary defines 'creed' as:

'3a: a formulation or system of religious faith . . . b: a religion or religious sect . . . c: a formulation or epitome of principles, rules, opinions, and precepts formally expressed and...