Framsted v. Municipal Ambulance Service, Inc.

Decision Date06 December 2004
Docket NumberNo. 03-C-600-C.,03-C-600-C.
Citation347 F.Supp.2d 638
PartiesChris FRAMSTED, Plaintiff, v. MUNICIPAL AMBULANCE SERVICE, INC. d/b/a Amery Area Emergency Services, Wilfred Kuhl, Lee Olson, Eugene A. Sollman, David Waterman, Michael Kruschak, Jr., Jim Schmidt, Glen Wright, Jerome Anderson, Richard Van Blaricom, Ken Galewyrick, Rolf B. Bjornson, Defendants.
CourtU.S. District Court — Western District of Wisconsin

Michael P. Erhard, for Plaintiff.

Peter M. Reinhardt, Bakke Norman, S.C., Menomonie, WI, Thomas A. Gilligan, Jr., Murnane, Conlin, White & Brandt, St. Paul, MN, Sally J. Ferguson, Arthur Chapman, Anne L. Johnson, Minneapolis, MN, Mark J. Gherty, Gherty & Gherty, S.C., Hudson, WI, for Defendants.

OPINION AND ORDER

CRABB, Chief Judge.

This is a civil action for monetary damages brought under 42 U.S.C. § 1983. Plaintiff Chris Framsted, the former executive director of defendant Municipal Ambulance Service, Inc., contends that this defendant and the individual members of its board of directors, defendants Wilfred Kuhl, Lee Olson, Eugene A. Sollman, David Waterman, Michael Kruschak, Jr., Jim Schmidt, Glen Wright, Jerome Anderson, Richard Van Blaricom, Ken Galewyrick and Rolf Bjornson, allowed media coverage of a disciplinary hearing against him in retaliation for exercising his First Amendment right to free speech. In addition, plaintiff raises a state law claim of wrongful termination against all defendants and defamation claims against defendants Sollman and Bjornson.

Currently before the court are five motions for summary judgment, one filed by defendants Anderson and Olson, a second by defendants Schmidt and Wright, a third by defendant Van Blaricom, the fourth by defendants Kuhl, Sollman, Waterman, Kruschak, Bjornson and Galewyrick and the fifth by defendant Municipal Ambulance Service (MAS). The motions will be granted. Plaintiff has failed to adduce evidence from which a jury could conclude reasonably that his termination of MAS employee Chris Gaetz in August 2002 was one of the reasons defendants held the first half of the October 23, 2002 board of directors meeting in open session. (Plaintiff characterizes his termination of Gaetz as the exercise of his First Amendment right of free speech and defendants do not dispute the characterization.) Plaintiff's wrongful termination claim fails because he does not allege that he was terminated for refusing to violate Wisconsin's open meetings laws. Finally, defendants Bjornson and Sollman are entitled to summary judgment on plaintiff's defamation claims. Plaintiff qualifies as a limited purpose public figure and he has failed to show that either defendant Bjornson or defendant Sollman acted with malice. Moreover, defendant Bjornson's statement was an opinion for which there was no implication of an undisclosed defamatory fact and it is undisputed that defendant Sollman did not make the communication to which plaintiff objects.

From the parties' proposed findings of fact, I conclude that the following are material and undisputed.

UNDISPUTED FACTS
A. The Parties

Plaintiff Chris Framsted has been an emergency medical technician since approximately 1991. He was employed as the manager of defendant Municipal Ambulance Service, Inc., d/b/a/ Amery Area Emergency Medical Service, from September 1, 1998 through October 29, 2002. As manager, plaintiff was responsible for the day-to-day operations of defendant MAS and he reported directly to its board of directors.

Defendant MAS is a non-stock Wisconsin corporation with its principal place of business in Amery, Wisconsin. According to its bylaws, its purpose is to provide emergency and non-emergency medical services throughout its member municipalities, which include the city of Amery and seven Wisconsin towns. Defendant MAS receives its operating revenue from two sources: some from payments by or on behalf of those who use the service and the remainder from the member municipalities on a per capita basis.

Pursuant to the bylaws, defendant MAS is governed by a board of directors composed of the mayor of Amery (or the mayor's designee from Amery's City Council), the chairperson of each member town's board, the chairperson of the Amery Regional Medical Center (or the chairperson's designee from the center) and an emergency medical technician from MAS. The Board was to meet at least quarterly in January, April, July, and October and each member had voting rights. At all relevant times, defendant Wilfred Kuhl was the chairman of the board of directors and the representative of the town of Lincoln; defendants Lee Olson, Eugene Sollman, David Waterman, Jim Schmidt, Glen Wright and Jerome Anderson represented the towns of Garfield, Clear Lake, Apple River, Clayton, Beaver and Alden respectively. Defendant Michael Kruschak, Jr., is the chief executive officer of the Amery Regional Medical Center and was appointed to the board of directors in April 2000. Defendant Richard Van Blaricom has been the fire chief for the city of Amery for more than twenty years and began volunteering as an emergency medical technician with defendant MAS in 1987. In 1999, he was elected as the EMT representative on the board of directors. None of the board members were compensated for serving on the board.

Defendant Dr. B. Rolf Bjornson is a family physician employed by the Amery Regional Medical Center. He was the medical director of defendant MAS from 1990 through the end of 1999, when plaintiff asked him to step down as medical director. Defendant Dr. Kenneth L. Galewyrick is a family physician employed at the Amery medical center.

When plaintiff began his employment, defendant MAS had only one other full time employee, Shelly Stinnett (now Shelly Gaetz), and fourteen to eighteen paid volunteers. During plaintiff's tenure, defendant MAS hired two additional full-time emergency medical technicians, Benedict Gaetz and Nicki Schad.

In January 2001, defendant MAS's employee handbook was revised to make clear that employment with defendant MAS is at-will; an employee may resign at any time with or without cause and defendant MAS may terminate any employee at any time with or without cause so long as the termination would not violate state or federal law. Plaintiff received a copy of the handbook and understood that his employment was at-will.

B. The D-50 Incident

In the fall of 2001, plaintiff volunteered to drive one of defendant MAS's ambulances in Amery's Fall Festival Parade. Schad and Gaetz rode in the ambulance during the parade. Schad told Gaetz in plaintiff's presence that she been out drinking the night before, was feeling ill and wanted to be hydrated by intravenous administration of fluids. Plaintiff attached a bag of saline to an intravenous needle and after a failed attempt by Gaetz, ran the needle into a vein in Schad's hand. Shortly thereafter, Gaetz administered D-50 a controlled drug typically used to treat low blood sugar levels for insulin dependent diabetics. Plaintiff did not know that Gaetz had given Schad D-50 until later.

C. Zero Intoxication Policy

Between 1998 and March 2002, plaintiff confronted defendant Van Blaricom (the Amery Fire Chief) about the fire department's "zero intoxication" policy, under which firefighters were permitted to consume alcohol on fire station premises but could not drive fire station vehicles if they were intoxicated. Plaintiff told defendant Van Blaricom that the "zero intoxication" policy was not good enough and that the department needed a "zero tolerance" policy, prohibiting firefighters from consuming alcohol on fire station premises. Plaintiff made these statements after observing intoxicated firefighters at emergency scenes on numerous occasions. On one occasion, defendant Van Blaricom had asked plaintiff to drive a fire truck because none of the firefighters were fit to do so.

In March 2002, plaintiff told Rick Davis, a member of Amery's city council, about his concerns regarding the zero intoxication policy. Davis brought up plaintiff's concerns at a meeting of the Amery public safety committee. After some discussion, the committee members, including Davis, directed defendant Van Blaricom to enforce a zero tolerance policy. Defendant Van Blaricom did not enforce the new policy until the late summer or early fall of 2002.

D. Gaetz's Termination

After EMT Gaetz had two surgeries on one of his fingers and began experiencing back pain, his physician, Dr. McCoy, prescribed him painkillers. From approximately 1996 through 2002, Gaetz had been attending Alcoholics Anonymous and had been clean and sober. In January 2002, plaintiff appointed Gaetz to be defendant MAS's training officer, responsible for holding the required monthly continuing education training sessions for defendant MAS's emergency medical technicians. At some point during the first eight months of 2002, Gaetz relapsed and began consuming alcohol with the prescribed pain killers.

In August 2002, plaintiff believed that Gaetz had come to work under the influence of drugs or alcohol on at least one occasion. Plaintiff arranged an intervention; it was unsuccessful. When Gaetz refused to enter an inpatient treatment program, plaintiff asked for his resignation. Gaetz relinquished his pager and portable radio and left the station but called plaintiff five minutes later to rescind his resignation. Plaintiff told Gaetz that he was terminated. Approximately twenty minutes later, Gaetz returned to the station, denying that he had ever reported to work under the influence of any intoxicating substance. When Gaetz refused plaintiff's request that he submit to a drug and alcohol test, plaintiff informed him that his termination remained effective.

Plaintiff informed defendant MAS's board of directors that he had terminated Gaetz for failure to perform his duties as training officer, failure to submit to a drug and alcohol test and...

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