Helland v. Froedtert Memorial Lutheran Hosp.

• Decision Date: 27 July 1999
• Docket Number: No. 98-0854.,98-0854.
• Citation: 229 Wis.2d 751,601 N.W.2d 318
• Parties: Kathleen R. HELLAND, Plaintiff-Appellant, v. KURTIS A. FROEDTERT MEMORIAL LUTHERAN HOSPITAL, a/k/a Froedtert Memorial Lutheran Hospital, Defendant-Respondent.
• Court: Wisconsin Court of Appeals

229 Wis.2d 751

601 N.W.2d 318

Kathleen R. HELLAND, Plaintiff-Appellant, v. KURTIS A. FROEDTERT MEMORIAL LUTHERAN HOSPITAL, a/k/a Froedtert Memorial Lutheran Hospital, Defendant-Respondent.

No. 98-0854.

Court of Appeals of Wisconsin.

Submitted on briefs June 1, 1999.

Decided July 27, 1999.

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Patrick J. Hudec and Gabrielle Boehm of Hudec Law Offices, S.C. of East Troy.

On behalf of the defendant-respondent, the cause was submitted on the brief of Tamara Hayes O'Brien of Whyte Hirschboeck Dudek S.C. of Menomonee Falls.

Before Wedemeyer, P.J., Fine and Schudson, JJ.

WEDEMEYER, P.J.

Kathleen R. Helland appeals from a judgment granting a motion for summary judgment in favor of Kurtis A. Froedtert Memorial Lutheran Hospital (Froedtert). Helland contends that the trial court improperly granted summary judgment dismissing her wrongful discharge/breach of contract claim, her intentional infliction of emotional distress claim, and her statutory breach of privacy claim. Because, as a matter of law, the trial court properly granted summary judgment dismissing Helland's three causes of action, we affirm.¹

BACKGROUND

Helland became an employee of Froedtert in October 1984. She worked as a registered nurse in the Neurosciences Intensive Care Unit (NICU). When she was hired, she did not execute any employment contract. She was provided with an "Employee Handbook" (Handbook). In 1985 and in 1990 Froedtert also provided her with Handbook updates. The Handbook was a "working guide summarizing Froedtert's employment policies and procedures." It is undisputed that in the 1984 Handbook: (1) Froedtert reserved the right to unilaterally modify the Handbook and all other hospital policies regardless of whether they were contained in the Handbook; (2) Froedtert reserved the right to take any disciplinary action against employees it deemed appropriate regardless of the procedures set forth in the Handbook; and (3) finally, the 1990 Handbook itself states that its contents do not create any contractual rights, and that personnel of Froedtert are employees "at will" whose employment may be terminated at any time for any reason or for no reason at all.

During her employment, Helland received three written warnings regarding her conduct and two cautions regarding her behavior. Several days before May 8, 1996, Helland asked, and was granted, permission to take a late lunch to enable her to keep a doctor's appointment. Arrangements were made to cover for her absence in the NICU. On May 8, shortly before Helland left for her late lunch, she told a co-worker that she might not be returning for the remainder of her shift after her doctor's appointment. Because patient coverage is important in the NICU, the co-worker discussed the problem with another co-worker. In turn, Helland's supervisor, Pamela Maxon-Cooper, was informed of Helland's anticipated intention not to return to work. Maxon-Cooper questioned Helland about her statement and Helland confirmed that she might not return. In view of her disciplinary history and alleged lack of concern for coverage of the patients, Maxon-Cooper terminated Helland.

Helland filed the complaint that the trial court dismissed on summary judgment. Helland now appeals.

ANALYSIS

Basic to Helland's three claims of trial court error is her assertion that genuine issues of material fact existed to foreclose granting of summary judgment on her claims of wrongful discharge/breach of contract, intentional infliction of emotional distress, and violation of privacy.

[1]

Whether summary judgment was appropriately granted presents a question of law which we review pursuant to § 802.08(2), STATS., independently of the trial court. See Fortier v. Flambeau Plastics Co., 164 Wis. 2d 639, 651-52, 476 N.W.2d 593, 597 (Ct. App. 1991). A court examines summary judgment motions in a three-step process; the court proceeds to each succeeding step only if it determines that the appropriate party has satisfied the burden on the preceding one. See Grams v. Boss, 97 Wis. 2d 332, 338, 294 N.W.2d 473, 476-77 (1980).

First, it must be determined that the pleadings set forth a claim for relief as well as a material issue of fact. See id. at 338, 294 N.W.2d at 476. Second, the court must determine whether the moving party's affidavits and other proofs present a prima facie case for summary judgment. See id. at 338, 294 N.W.2d at 476-77. A moving party states a prima facie case for summary judgment by showing a defense that would defeat the claim. See Preloznik v. City of Madison, 113 Wis. 2d 112, 116, 334 N.W.2d 580, 583 (Ct. App. 1983). Finally, the court examines the affidavits and proofs of the opposing party to determine whether any disputed material fact exists, or whether any undisputed material facts are sufficient to allow for reasonable alternative inferences. See Grams, 97 Wis. 2d at 338, 294 N.W.2d at 477.

[2]

The mere allegation of a factual dispute will not defeat an otherwise properly supported motion for summary judgment. See Kenefick v. Hitchcock, 187 Wis. 2d 218, 224, 522 N.W.2d 261, 263 (Ct. App. 1994). A party opposing a summary judgment motion must set forth "specific facts," evidentiary in nature and admissible in form, showing that a genuine issue exists for trial. It is not enough to rely upon unsubstantiated conclusory remarks, speculation, or testimony which is not based upon personal knowledge. See Maynard v. Port Publications, Inc., 98 Wis. 2d 555, 561-63, 297 N.W.2d 500, 504-05 (1980).

In general reference to all three of her claims of error, Helland asserts that genuine issues of fact exist with regard to what Froedtert knew at the time she was fired, its motivation for firing her, whether Froedtert was justified in telling her co-workers that she was being treated by a physician who specializes in the treatment of drug and alcohol abuse, and how Froedtert's actions in this regard affected her.

[3]

Specifically, Helland first claims that the trial court erred when it concluded that she was an "at-will" employee. She contends that the trial court should have determined that the Handbook created an employment contract between Froedtert and her. In Wisconsin, employment is generally terminable "at will" by either party without cause. See Clay v. Horton Mfg. Co., Inc., 172 Wis. 2d 349, 354, 493 N.W.2d 379, 381 (Ct. App. 1992). An employee handbook may modify an "at-will" employment relationship. See Ferraro v. Koelsch, 124 Wis. 2d 154, 169, 368 N.W.2d 666, 674 (1985). Because of Wisconsin's policy favoring employment "at will," the mere issuance of an employee handbook for guidance and orientation of employees is insufficient to alter an "at-will" employment relationship. See id. An "at-will" employment relationship is altered only when a handbook contains express provisions from which it can reasonably be inferred that the parties intended to bind each other to a different employment relationship. See Bantz v. Montgomery Estates, Inc., 163 Wis. 2d 973, 979, 473 N.W.2d 506, 508 (Ct. App. 1991).

At the focal point of the dispute are two editions of the Employee Handbook: the 1984 version and the 1990 updated version. When Helland was hired in 1984, the Handbook provided that once an employee completed the probationary work period, that employee could only be disciplined pursuant to the guidelines set forth in the Handbook, including discipline "for cause." Helland argues that this provision, in effect, changed the employment relationship from one of "at will" during the probationary period, to one of a contractual nature after probation was completed. As a result, she contends that she could only be discharged "for cause," and then, only after a progressive disciplinary procedure was followed as outlined in the 1984 Handbook. See Ferraro, 124 Wis. 2d at 164-65,368 N.W.2d at 672 (employee handbook can create contractual relationship).

The 1990 Handbook update, however, contained a specific disclaimer that the Handbook created any employment contractual rights. In her affidavit opposing summary judgment, Helland asserted that she never received a copy of the 1990 revisions, never read them, and never agreed to be bound by them. Regardless of these contentions, Helland's first claim cannot withstand the tests of summary judgment scrutiny.

A review of the record demonstrates that Helland's claim fails. First, the acknowledgment form for the 1984 Handbook, which Helland admits she read and signed, provides in part:

I understand the Handbook is a working guide of policies, rights and responsibilities for Froedtert employees. I understand it does not replace or supersede original hospital policies. Changes or additions to hospital policies occurring after receipt of my Handbook will be communicated to me so I may keep my Handbook current. At my request, my supervisor or the Personnel Department will review original policies with me.

I also understand the policies summarized in my Handbook and all other Froedtert Hospital policies, practices and procedures are subject to change at the sole discretion of management.

Unlike the handbook in Ferraro, this acknowledgment form declared that the Froedtert 1984 Handbook was a summarized "working guide" of the policies, rights and responsibilities. Further, it specifically provided that the Handbook was not a replacement of original hospital policies. It also unequivocally advised Helland that the policies synthesized in the Handbook and all other hospital policies, practices and procedures were subject to change at the sole discretion of Froedtert's management. See Olson v. 3M Co., 188 Wis. 2d 25, 54, 523 N.W.2d 578, 589 (Ct. App. 1994) (concluding that providing a handbook for "guidance" was insufficient to alter "at-will" employee status).

In addition to this clear language, even the provisions related to non-probationary employees, i.e., rules of employee conduct,...