Bushko v. Miller Brewing Co.

• Decision Date: 25 November 1986
• Docket Number: No. 84-2130,84-2130
• Citation: 396 N.W.2d 167,134 Wis.2d 136
• Parties: , 105 Lab.Cas. P 55,621 Stephen S. BUSHKO, Plaintiff-Appellant, v. MILLER BREWING COMPANY, Defendant-Respondent-Petitioner.
• Court: Wisconsin Supreme Court

Page 167

396 N.W.2d 167

134 Wis.2d 136, 105 Lab.Cas. P 55,621

Stephen S. BUSHKO, Plaintiff-Appellant, v. MILLER BREWING COMPANY, Defendant-Respondent-Petitioner.

No. 84-2130.

Supreme Court of Wisconsin.

Argued Sept. 4, 1986.

Opinion Filed Nov. 25, 1986.

George K. Whyte, Jr. (argued), David R. Cross, Robert H. Duffy and Quarles & Brady, Milwaukee, for defendant-respondent-petitioner.

Walter F. Kelly (argued), and Sutton & Kelly, Milwaukee, for plaintiff-appellant.

STEINMETZ, Justice.

The issues raised by the parties on this review are several; however, we find the controlling issue to be whether the narrow cause of action for wrongful discharge established in Brockmeyer v. Dun & Bradstreet, 113 Wis.2d 561, 335 N.W.2d 834 (1983) encompassed the discharge of an employee for complaining about public policy matters.

Stephen S. Bushko was first employed by Miller Brewing Company in 1978 as a warehouse supervisor in Miller's Fort Worth, Texas, plant. He transferred to Miller's container plant in Milwaukee in 1981, where Miller manufactures its beer cans, and worked as a supervisor on the can line. He was terminated in April, 1982.

Bushko concedes that he was not terminated for refusing to violate any public policy. ¹ Instead, Bushko claims he was terminated because he complained about Miller's policies in three areas--plant safety, hazardous wastes and "honesty."

Bushko's plant safety claim arose from a safety meeting he and other supervisors had with the plant production supervisor, Kenneth Michaelchuck, on March 3, 1982. Bushko challenged Michaelchuck's position that safety was the number one priority in the plant. Bushko argues this challenge directly and responsibly raised a matter of fundamental public importance, as recognized by sec. 101.17, Stats. ² However Bushko admitted that Michaelchuck's angry response was because "apparently Mr. Michaelchuck felt that we were badgering him, or, you know, harassing him...." Kurt Hoffman, another supervisor at the meeting, confirmed in his deposition that "the general feeling was that Michaelchuck was kind of the new kid on the block ... and we tugged his chain a little." Bushko does not allege that he was discharged for refusing to operate an unsafe machine.

Bushko's second claim centers on protests he made to Walter Brown, his immediate superior, and George Lensinger about hazardous waste disposal procedures, for which Lensinger is responsible. However, Bushko's testimony establishes his superiors were content with his work and receptive to his complaints. Bushko admitted that his two immediate supervisors were pleased with his work, commended his efforts, responded to his concerns, and worked with him as a team to solve Miller's waste problems. Bushko does not allege that he was discharged for refusing to perform any illegal hazardous waste handling or illegal disposal procedure.

Bushko's final claim concerns his charges of dishonest conduct by other supervisors. These accusations involved falsification of personnel and expense records. Bushko does not claim he was ever asked to falsify or lie about records.

On April 10, 1982, Bushko left work before his shift ended while some of the hourly employees he was supposed to be supervising were still working. He left without notifying them or anyone in management. By his own admission, he left at least 20 minutes early.

Following an investigation of the incident, Brown recommended to Michaelchuck, Brown's immediate superior, that Bushko be discharged. Michaelchuck agreed and recommended discharging Bushko for leaving his crew unsupervised without notifying anyone and for exhibiting a complete lack of concern for the gravity of his actions. Michaelchuck received approval for the termination through Joe Adamski, the plant industrial relations manager. Miller gave Bushko the option of being discharged or resigning. Bushko resigned.

This action was commenced by Bushko on September 11, 1982, in Milwaukee county circuit court. The defendant, Miller Brewing Company, moved for summary judgment on July 30, 1984. Oral arguments on the motion were heard before the Honorable William J. Haese and on that date, Miller's motion for summary judgment was granted. Judgment was entered on October 18, 1984.

The court of appeals, in an unpublished decision, 125 Wis.2d 577, 373 N.W.2d 88, reversed and remanded the case for trial. The court of appeals held that a termination based upon an employee's exercise of free speech in support of employee safety, correct handling and disposal of hazardous waste and prohibiting criminal activity at the place of employment was condemned by Brockmeyer. The court of appeals erroneously held: "Under Brockmeyer all an employee need do to state a wrongful discharge cause of action is to identify and allege a clear and specific public policy, as set forth in the Wisconsin constitution and statutes." In Brockmeyer, 113 Wis.2d at 572-73, 335 N.W.2d 834, we held:

"We have concluded that in the interests of employees, employers and the public, a narrow public policy exception should be adopted in Wisconsin. Accordingly, 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."

However, we went on to state with specificity in Brockmeyer as follows:

"We intend to recognize an existing limited public policy exception. An employer may not require an employee to violate a constitutional or statutory provision with impunity. If an employee refuses to act in an unlawful manner, the employer would be violating public policy by terminating the employee for such behavior." Id. at 573, 335 N.W.2d 834. (Emphasis added.)

The court of appeals incorrectly held that activity merely consistent with a public policy provides a basis for a wrongful discharge cause of action. Brockmeyer requires that the discharge be for refusing a command to violate a public policy as established by a statutory or constitutional provision.

The trial judge properly analyzed and applied the Brockmeyer limited cause of action and granted a summary judgment motion for the defendant. The court of appeals incorrectly made the employer's intent in the discharge a material fact in stating why the motion for summary judgment should not have been granted. The plaintiff is not required under Brockmeyer to prove the employer had an evil intent in the discharge. Likewise, gratuitous allegations or other evidence of evil intent will not save a cause of action from defendant's motion for summary judgment if the elements required by Brockmeyer are not present. Brockmeyer requires an employee allege and attest that he was discharged for refusing to violate a constitutional or statutory provision. Although Brockmeyer was intended to provide relief for the employee who was a victim of evil intent, it did so under very limited circumstances. Brockmeyer defined the cause of action and the standards for summary judgment in such a way that the trial judge need not inquire into the intent of the employer. If "intent" were a proper inquiry at the summary judgment stage, no wrongful discharge action could be disposed of at summary judgment.

There is no claim that Bushko was required to violate a constitutional or statutory provision. The plaintiff's counsel acknowledged at oral argument that: "Steve Bushko was not ordered by his employers, and we conceded it from the beginning, to do anything that violates the positive law of the State of Wisconsin."

Bushko mistakenly relies on the following language from Brockmeyer:

"Once the plaintiff has demonstrated that the conduct that caused the discharge was consistent with a clear and compelling public policy, the burden of proof then shifts to the defendant employer to prove that the dismissal was for just cause." Id. at 574, 335 N.W.2d 834.

An employee who refuses a command to violate public policy is acting consistent with public policy. However, if the employee of his own volition acts consistently with public policy, he does no more than obey the law. Such consistent action, without an employer's command to do otherwise, is merely "praiseworthy" conduct.

In Brockmeyer we recognized that there would be continuing efforts to expand the narrow public policy cause of action defined by the court and stressed the use of summary judgment to screen cases without clogging trial court calendars. We stated:

"[T]he public is protected against frivolous lawsuits since courts will be able to screen cases on motions to dismiss for failure to state a claim or for summary judgment if the discharged employee cannot allege a clear expression of public policy." Id. at 574, 335 N.W.2d 834.

Public policy in the context of the Brockmeyer statement of a cause of action means an employer could not require an employee to violate a constitutional or statutory provision. Id. at 573, 335 N.W.2d 834. Bushko was not required as a condition of continuing employment to violate any statutory or constitutional provision.

Bushko, however, believes that Wandry v. Bull's Eye Credit, 129 Wis.2d 37, 384 N.W.2d 325 (1986) is not a case in which the employer required "an employee to do something that is forbidden by the law," thereby changing the rule of Brockmeyer. ³ Here, Bushko is in error. Although Wandry extended the rule of Brockmeyer to include the spirit, as well as the clear language of a statutory provision, Wandry still required that for a wrongful discharge the employee be required to act contrary to law, a statutory or constitutional provision. Id. at 46-47, 384 N.W.2d 325. The statute considered in Wandry was sec. 103.455, Stats. ⁴ The court stated: "We conclude that sec. 103.455 articulates a fundamental and well-defined public policy proscribing economic coercion by an employer upon an employee to bear the burden of a work-related loss...." Id. at 47, 384 N.W.2d 325.

In analyzing the Wandry...