Bachand v. Connecticut General Life Ins. Co.
| Decision Date | 24 February 1981 |
| Docket Number | No. 80-704,80-704 |
| Citation | 305 N.W.2d 149,101 Wis.2d 617 |
| Court | Wisconsin Court of Appeals |
| Parties | , 115 L.R.R.M. (BNA) 5094, 37 Fair Empl.Prac.Cas. (BNA) 1122, 26 Empl. Prac. Dec. P 31,849 Gerald F. BACHAND, Plaintiff-Respondent, * v. CONNECTICUT GENERAL LIFE INSURANCE COMPANY, Defendant-Appellant. |
David E. Jarvis, Milwaukee, argued, for defendant-appellant; Gregory S. Pokrass, Quarles & Brady, Milwaukee, on brief.
Hugh R. Braun, Milwaukee, argued for plaintiff-respondent; Godfrey & Trump, Milwaukee, on brief.
Before VOSS, P. J., and BROWN and SCOTT, JJ.
This case presents a question regarding the relationship between the courts and administrative agencies. Gerald Bachand's complaint is that he was fired in violation of the Wisconsin Fair Employment Act. Throughout, "dual track" proceedings have occurred, and, throughout, the employer has sought to have the circuit court proceedings dismissed. Because the Wisconsin Fair Employment Act provides for lost wages to be pursued only through an administrative agency (DILHR), we reverse that part of the judgment. We also reverse that part of the judgment allowing compensatory and punitive damages for emotional distress.
Gerald F. Bachand was employed by Connecticut General Life Insurance Company from March 4, 1968 until July 31, 1973, when he was terminated. He filed a complaint with DILHR alleging his termination violated provisions of the Wisconsin Fair Employment Act, secs. 111.31-37, Stats., prohibiting discrimination in employment against handicapped persons. Bachand claimed he was fired because of his alcoholism. He asserted that his alcoholism was a handicap within the meaning of the act and was the sole reason for his discharge.
At the time Bachand filed the complaint with the department, the Wisconsin Fair Employment Act limited DILHR to providing prospective relief. This prospective relief was in the form of reinstatement and orders restraining employers from further acts of discrimination.
Effective June 15, 1974, however, and before DILHR heard the case, the legislature broadened DILHR's powers to include the remedy of backpay. 1 DILHR heard the case in March 1975 and ultimately granted backpay in addition to the customary prospective relief.
DILHR's decision was affirmed by the Dane county circuit court but was remanded by the Supreme Court of Wisconsin in Connecticut General Life Insurance Co. v. DILHR, 86 Wis.2d 393, 273 N.W.2d 206 (1979). The court concluded there was insufficient evidence to support the conclusion that Bachand was "handicapped" and directed DILHR to determine whether the drinking problem constituted the disease of alcoholism or a condition short of that. Id. at 409, 273 N.W.2d at 213.
A further hearing before DILHR was held on May 16, 1979. DILHR found Bachand's alcoholism was definable as a handicap and again awarded backpay. The DILHR decision is presently pending on appeal before the circuit court in Dane county.
Just prior to the second DILHR hearing, Bachand filed the instant action in Racine The complaint in this case, like the complaint Bachand filed with DILHR, alleged that his termination was in violation of the Fair Employment Act. According to Bachand, the termination occurred solely because of his "alcoholism." A separate cause of action was also asserted for intentional infliction of emotional harm. The action sought compensatory damages for loss of prior and future wages and benefits, personal humiliation and embarrassment, irreparable damage to career planning and career potential, future moving expenses and relocation costs, costs and disbursements and punitive damages.
county circuit court against Connecticut General and Robert Strom, the manager of Connecticut General's Racine claims office.
Connecticut General moved that this action be dismissed for lack of jurisdiction over the subject matter, failure to state a claim upon which relief could be granted and because there was another action pending between the same parties for the same cause (the DILHR proceeding). The trial court dismissed Strom from the suit but denied the remainder of the motion. The trial court ruled that Bachand could recover all of his damages in a civil action against the employer. Further, the court ruled that it was proper to commence separate proceedings before DILHR and the circuit court, notwithstanding the concurrency of those proceedings. Finally, the court noted that the recovery of compensatory and punitive damages beyond backpay presented a jury question.
Within the context of a motion in limine, Connecticut General again moved: (1) to dismiss the action in its entirety; (2) in the alternative, to stay the action pending final disposition of the DILHR proceedings, and (3) in the alternative, to exclude all evidence of damages beyond backpay. The trial court denied the motion, the first two requests on the same basis as the prior motion and the third request on the basis that the complaint stated two causes of action: "backpay and intentional tort." Thus, while damages beyond backpay could be recovered, they would be awardable only in the intentional tort claim.
On June 24, 1979, trial to a jury was commenced. The jury ultimately rendered a verdict which found that Bachand was an involuntary alcoholic and that Connecticut General terminated Bachand's employment because of his alcoholism. Although the jury found that Bachand's firing was extreme and outrageous and caused Bachand emotional distress, the jury decided the firing was not done with intent to cause the emotional distress. The jury awarded $35,000 damages for emotional distress and $50,000 for punitive damages. The court answered the loss of wages and benefits portion of the verdict by placing the amount of $14,907.35 next to the loss of wages question.
In its charge to the jury, the trial court specifically instructed them that damages for emotional distress could be awarded only if all four elements of the intentional infliction of emotional distress tort were found in Bachand's favor.
Thus, in motions after verdict, Connecticut General moved for judgment of dismissal on the intentional infliction of emotional distress portion of the claim because Bachand failed to establish all the elements of the alleged tort. Additionally, Connecticut General moved to dismiss the handicap discrimination and backpay portions of the claim because, as it had argued on other motions, there was a DILHR action already in existence.
The court concluded that the jury verdict compelled the dismissal of the cause of action for intentional infliction of emotional harm. Nonetheless, the court denied the remainder of Connecticut General's motion for judgment on the verdict, instead granting Bachand's motion for judgment on the verdict in the amount of approximately $100,000 representing the backpay and the emotional distress and punitive damages amount specified by the jury. The trial court ruled that "emotional harm damages can be recovered in a sec. 111.32, Stats., action under aggravated circumstances" and that such circumstances were present in this case notwithstanding the dismissal In deciding this case, this court's task is to determine whether the circuit court was jurisdictionally foreclosed from resolving the dispute. In making our determination, we will separately discuss each of the remedies awarded Bachand in the circuit court action and will decide whether the circuit court had jurisdiction to make such awards.
of the separate intentional tort claim and also notwithstanding the fact that the jury specifically had been instructed that such damages could be awarded only if the intentional tort were present.
The Wisconsin Fair Employment Act was designed to discourage discriminatory firing. Remedies based on violation of this act are therefore statutory remedies and not common law remedies. Ross v. Ebert, 275 Wis. 523, 82 N.W.2d 315 (1957). When the legislature creates a right, the statutory remedies for violation of that right are exclusive. State ex rel. Russell v. Board of Appeals, 250 Wis. 394, 397, 27 N.W.2d 378, 379 (1947). Where there is a new statutory remedy provided by amendment, that remedy is also exclusive. In re Jeness, 218 Wis. 447, 450, 261 N.W. 415, 416 (1935). Thus, since the Wisconsin Fair Employment Act specifically states that all remedies are to be pursued through DILHR, sec. 111.33(1), Stats., 2 that avenue is the exclusive means by which the remedy may be pursued.
Bachand argues, correctly, that there is an exception to the general rule. The exception is set out in Yanta v. Montgomery Ward & Co., Inc., 66 Wis.2d 53, 224 N.W.2d 389 (1974). In that case, the plaintiff instituted proceedings before DILHR alleging an act of sex discrimination. DILHR awarded prospective relief because that was the only statutory remedy available at the time. Following the award for prospective relief, the plaintiff commenced a civil suit requesting lost wages and damages for emotional and mental anguish and personal humiliation, among other things. The employer demurred, claiming there was no statutory remedy for lost wages. The trial court overruled the demurrer, and the employer appealed.
By the time the case reached the supreme court, the Fair Employment Act had been amended so as to allow backpay. The court indicated that "the narrow question now before us is whether this court can now take cognizance of the change in legislative attitude, so as to permit the plaintiff to pursue a cause of action for lost wages." Yanta, supra, at 61, 224 N.W.2d at 393.
Implicit in the court's framing of the issue was the realization that while the legislature now mandated a benefit in the form of lost wages for discriminatory acts, that relief was unavailable from the administrative agency at the time the plaintiff pursued her DILHR action. Therefore, the plaintiff in Yanta...
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