Bicknese v. Sutula
| Citation | 260 Wis.2d 713,660 N.W.2d 289,2003 WI 31 |
| Decision Date | 02 May 2003 |
| Docket Number | No. 00-1825.,00-1825. |
| Parties | Alma BICKNESE, M.D., Plaintiff-Appellant-Petitioner, v. Thomas B. SUTULA and the Board of Regents of the University of Wisconsin System, Defendants-Respondents. |
| Court | United States State Supreme Court of Wisconsin |
For the plaintiff-appellant-petitioner, there were briefs by Mary E. Kennelly, BethAnne Yeager, and Fox & Fox, S.C., Madison, and oral argument by Michael R. Fox.
For the defendants-respondents the cause was argued by John R. Sweeney, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.
¶ 1.
Alma Bicknese (Bicknese) alleges that Thomas Sutula (Sutula), who was chair of the Neurology Department at the University of Wisconsin-Madison, offered her a position as an assistant professor and that she relied upon this offer in turning down a comparable job offer from the University of New York-Buffalo. Bicknese seeks review of an unpublished decision of the court of appeals, which dismissed Bicknese's claims on the grounds that Sutula was immune from personal liability based on public officer immunity. ¶ 2. The issue here is not whether Bicknese is entitled to damages from Sutula. The issue is whether Bicknese can even sue Sutula. Sutula claims that as a public officer, he is shielded by public officer immunity. Bicknese argues that Sutula is not immune from suit because his conduct falls under an exception to public officer immunity; namely, the performance of a ministerial duty or actions that are malicious, willful, and intentional. Bicknese argues, in part, that Sutula had a ministerial duty to make the job offer consistent with the University of Wisconsin Faculty Policies and Procedures. Bicknese alleges that Sutula breached his ministerial duty when he failed to set the terms of the offer pursuant to these policies and procedures; therefore, he loses his public officer immunity. We agree with Bicknese. Accordingly, we reverse the decision of the court of appeals.
¶ 3. In order to have a full understanding of the facts and appreciate their significance, we first briefly review Bicknese's theory for recovering damages. Sutula, who was the chair of the Neurology Department at the University of Wisconsin-Madison (UW), offered Bicknese a position as an assistant professor in the department. One of the terms of the offer was a five-year tenure clock; that is, five years to qualify for tenure. Based on that offer, Bicknese turned down a comparable job offer from the University of New York-Buffalo (Buffalo), which also included a five-year tenure clock. Bicknese relied on the terms represented by Sutula in rejecting Buffalo's offer. As concluded by the circuit court:
¶ 4. As chair of the Neurology Department, Sutula had a ministerial duty to accurately state the terms under which the offer was extended to Bicknese in accordance with the UW Faculty Policies and Procedures. Sutula breached this ministerial duty when he failed to adhere to the specific directives of the UW Faculty Policies and Procedures in calculating Bicknese's tenure clock. Therefore, Sutula has no public officer immunity.
¶ 5. Alma Bicknese was an assistant professor at the State University of New York-Stony Brook (Stony Brook), where she had been employed since 1992. In October 1996, Bicknese decided to leave Stony Brook and seek a position at another university. She applied for assistant professor positions at Buffalo and the UW. In January 1997, Bicknese received a job offer from Buffalo with a starting salary of $100,000, start-up funds for a laboratory, and a five-year tenure clock. Bicknese informed Buffalo that she could not accept the offer until she could compare it with an offer from the UW. When Bicknese informed Sutula that she had an offer from Buffalo, she claimed that Sutula assured her that he was very interested in hiring her, and that he already considered her to be a member of the Neurology Department at the UW.
¶ 6. In February 1997, Bicknese visited the UW and met with Sutula and other members of the Neurology Department. Bicknese testified that Sutula told her that she would have a five-year tenure clock and that the UW "always went along with what the chairman recommended . . . so it was no big deal." Sutula admitted that he told Bicknese that she would have a five-year tenure clock; although, he confessed that he mis-stated the process when he represented to Bicknese that he had control over setting her tenure clock. On April 25, 1997, the Executive Committee of the Pediatric Neurology Department unanimously voted to hire Bicknese; however, a formal offer was not extended due to an initial incorrect posting of the position as a clinical appointment instead of a tenure-track position. The position had to be re-posted; consequently, a formal offer could not be made until the new posting time expired.
¶ 7. In May 1997, Bicknese told Sutula that she needed to make a decision regarding the offer from Buffalo. She testified that Sutula reassured her that "the job was [hers] for the taking" and that they were only waiting for the posting period to expire before sending a formal offer. Bicknese further claimed that Sutula told her to turn down the job offer from Buffalo. Bicknese testified that she was uncomfortable in turning down the offer from Buffalo without a formal offer from the UW, so Sutula sent her a "white copy" offer letter. The "white copy" offer letter detailed the terms of Bicknese's appointment and tenure, including a five-year tenure clock, but it was not signed or printed on letterhead. Bicknese claimed Sutula told her that the "white copy" offer letter was the same document that she would receive once the posting period was complete. Based on these representations, Bicknese contacted Buffalo and informed them that she had accepted an offer from the UW.
¶ 8. Sutula disputed that he ever made a job offer to Bicknese, and claimed that the UW Medical School has no procedure for verbal job offers. He also testified that he did not tell Bicknese to turn down the offer from Buffalo, but conceded that he did tell her that she should let Stony Brook know that she would be accepting a position elsewhere. Sutula admitted that he told Bicknese throughout the process that he was committed to working out the details to eventually offer her a job. The trial evidence also contained a letter from Sutula to Bicknese, in which he stated: "[W]e remain firmly committed to the offer of a position, and we are all determined to do whatever is necessary to bring you to Madison . . . ."
¶ 9. Around the beginning of July 1997, Bicknese contacted Sutula because she had not yet received the formal offer from the UW. Bicknese testified that Sutula told her that the letter had not been sent because they needed to set a start date. A start date was set for October 1997, and Bicknese gave Stony Brook notice of her departure; however, Sutula contacted Bicknese about a week and a half later to inform her that there was a problem with the tenure clock calculation. For the first time, Sutula told Bicknese that in order to extend her tenure clock to five years, he would have to petition the University Committee. Bicknese testified that had she known about the tenure clock problem earlier, she would not have rejected the offer from Buffalo.
¶ 10. Sutula petitioned the University Committee for an extension of Bicknese's tenure clock from three years to five years, but the Committee denied Sutula's request based on the clear provisions of § 7.04(H) of the UW Faculty Policies and Procedures, which allows extensions in only certain enumerated circumstances.2 In light of the Committee's decision, the Department of Neurology determined that a three-year tenure clock would be insufficient for Bicknese to meet her tenure requirements. Sutula contacted Bicknese to inform her that the Neurology Department decided it would be "unreasonable to proceed with a formal job offer . . . ." Bicknese eventually accepted a position at St. Louis University in July 1998, which is a Tier II institution. In contrast, both the UW and Buffalo are Tier I institutions. Tier I institutions are considered preferable to Tier II schools because of their emphasis on research and their ability to attract grant money.
¶ 11. Bicknese sued Sutula, the UW Board of Regents, the State of Wisconsin, the UW Executive Committee, and the UW Medical School, including its Department of Neurology, alleging promissory estoppel, intentional misrepresentation, and strict liability misrepresentation. The circuit court for Dane County, Judge Robert DeChambeau presiding, dismissed all the defendants except for Sutula and the Board of Regents (Board), but with respect to the Board, the court concluded that its only liability would be to pay the judgment if Sutula was found liable. As an affirmative defense, Sutula asserted that he was immune from liability as a public officer.
[1, 2]
¶ 12. At trial, the jury was instructed on the promissory estoppel and intentional misrepresentation claims. A claim of promissory estoppel involves three elements: (1) whether the promise is one which the promisor should reasonably expect to induce action or forbearance of a...
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