Ferraro v. Koelsch
| Citation | 350 N.W.2d 735,119 Wis.2d 407 |
| Decision Date | 25 May 1984 |
| Docket Number | No. 83-1205,83-1205 |
| Parties | , 116 L.R.R.M. (BNA) 3092 Annunzio C. FERRARO, Plaintiff-Respondent, v. Thomas P. KOELSCH and Kevin Jorgenson, Defendants, Hyatt Corporation, d/b/a Hyatt Regency Milwaukee, Defendant-Appellant. |
| Court | Court of Appeals of Wisconsin |
Quarles & Brady, Milwaukee, for defendant-appellant Hyatt Regency Milwaukee; Matthew J. Flynn and David R. Cross, Milwaukee, of counsel.
Joseph P. Balistreri and Nancy J. Meissner, Milwaukee, for plaintiff-respondent.
Before WEDEMEYER, P.J., and DECKER and MOSER, JJ.
Following a jury trial for a wrongful discharge action, Hyatt Corporation, doing business as Hyatt Regency of Milwaukee, appeals from a judgment awarding $28,000 to its former employee, Annunzio Ferraro.
Hyatt raises three points of error: (1) There is no credible evidence to support the jury finding that Hyatt and Ferraro agreed to be bound by an employees' handbook when he was hired; (2) there is no credible evidence to support the finding that Hyatt's discharge of Ferraro violated provisions of the employees' handbook; and (3) any alleged violation by Hyatt caused Ferraro no compensable injury. Persuaded that as a matter of law there is no credible evidence that Hyatt and Ferraro agreed to be bound by the handbook, we reverse and remand with instructions to dismiss Ferraro's complaint.
The record reveals the following relevant and undisputed facts: On May 25, 1980, Hyatt hired Ferraro as a security guard. In seeking this position with Hyatt, Ferraro signed a statement which provided in significant part that "I agree that my employment may be terminated by this Company at any time without liability for [lost wages] ...." On August 9, 1980, Ferraro signed a document acknowledging that he received and read the Hyatt Regency-Milwaukee Employees' Handbook.
One of Ferraro's duties was to patrol the restricted "employees only" parking lot. On February 25, 1981, he observed an unauthorized auto driven by Thomas Koelsch pull into the lot. After he told Koelsch to remove the car from the lot, an altercation occurred between the two which quickly became physical. Koelsch complained to Hyatt about Ferraro's conduct. An investigation resulted in Hyatt's terminating Ferraro for violating the employees' handbook provision relating to disrespectful conduct toward hotel guests. 1
On April 2, 1982, Ferraro commenced a wrongful discharge action against Hyatt, which is the subject of this appeal, and a conspiracy and defamation action against Koelsch and a friend of Koelsch's which, after a trial to the jury, was dismissed. On the former claim the jury found that when Hyatt hired Ferraro, the parties agreed to be bound by the provisions of the employees' handbook governing termination of an employee; and Ferraro's discharge violated those provisions. The jury also assessed $28,000 in damages for lost wages stemming from the discharge.
In motions after verdict Hyatt unsuccessfully moved the trial court to find either that there was no credible evidence to support a finding that Ferraro's discharge violated provisions of the employees' handbook, or that there was no credible evidence to support the finding that the parties agreed to be bound by its provisions. Hyatt now appeals the judgment.
After a jury verdict is returned, any party may, by motion, challenge the sufficiency of the evidence to support the verdict or any answer thereof. See sec. 805.14, Stats. The cases setting forth and applying the standard for determining the sufficiency of the evidence are too commonplace to warrant mention. Suffice it to say that, if there is any credible evidence which, with any reasonable view, fairly admits an inference that supports a jury's finding, neither the trial court nor this court should change that finding. If there is any evidence other than mere conjecture or incredible evidence to support the verdict the standard has been met. Incredible evidence is evidence in conflict with the uniform course of nature or with fully established or conceded facts. Wisconsin Natural Gas Co. v. Ford, Bacon & Davis Construction Corp., 96 Wis.2d 314, 338, 291 N.W.2d 825, 837 (1980).
There is no dispute here over Ferraro's employment status. He was an at-will employee and therefore, Hyatt contends, could be terminated for any cause or for no cause. See Yanta v. Montgomery Ward & Co., 66 Wis.2d 53, 63 n. 16, 224 N.W.2d 389, 394 n. 16 (1974); Forrer v. Sears, Roebuck & Co., 36 Wis.2d 388, 393, 153 N.W.2d 587, 589-90 (1967). On the other hand, Ferraro argues that the contents of the employees' handbook imposed limitations, be they expressed or implied, on the termination rights of the at-will relationship. Ferraro's contention raises a question of first impression in Wisconsin.
In support of the argument of limitation by implication, Ferraro directs our attention to Toussaint v. Blue Cross & Blue Shield, 408 Mich. 579, 292 N.W.2d 880 (1980). In relying on Toussaint, Ferraro invites us to continue the alteration of Wisconsin's at-will doctrine begun by our supreme court in Brockmeyer v. Dun & Bradstreet, 113 Wis.2d 561, 335 N.W.2d 834 (1983). 2 He urges us to adopt the law set forth in Toussaint to allow policy statements by an employer, or provisions of employees' handbooks, to give rise to enforceable contractual rights of employees without the parties' explicit mutual agreement. 3
Respectfully, we decline Ferraro's invitation to alter Wisconsin's at-will doctrine, for two reasons. Firstly, we conclude that Ferraro misapplies Toussaint to the facts of this case. Although Toussaint stands for the general proposition that employers' statements of policy in a personnel manual can give rise to enforceable employment rights without mutually expressed agreements, it specifically declares:
Employers are most assuredly free to enter into employment contracts terminable at will without assigning cause. We hold only that an employer's express agreement to terminate only for cause, or statements of company policy and procedure to that effect, can give rise to rights enforceable in contract. Toussaint, supra, 292 N.W.2d at 890.
As indicated earlier in this opinion, Ferraro, as part of his job application, agreed that his employment could be terminated at any time without liability for wages. In Novosel v. Sears, Roebuck & Co., 495 F.Supp. 344 (E.D.Mich.1980)...
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