Kempfer v. Automated Finishing, Inc.

• Decision Date: 20 June 1997
• Docket Number: No. 95-0649,95-0649
• Parties: , 12 IER Cases 1686 Ken KEMPFER, Plaintiff-Respondent, v. AUTOMATED FINISHING, INC., Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 692

564 N.W.2d 692

211 Wis.2d 100, 12 IER Cases 1686

Ken KEMPFER, Plaintiff-Respondent, v. AUTOMATED FINISHING, INC., Defendant-Appellant.

No. 95-0649.

Supreme Court of Wisconsin.

Argued Oct. 31, 1996.

Decided June 20, 1997.

For the defendant-appellant there were briefs by Joseph E. Redding, Thomas R. Napierala and Glojek Limited, West Allis and oral argument by Thomas R. Napierala.

For the plaintiff-respondent there was a brief by Joseph J. Welcenbach and Welcenbach & Widmann, S.C., Milwaukee and oral argument by Joseph J. Welcenbach and Patricia Meunier of Shneidman, Myers, Dowling, Blumenfield, Ehlke, Hawks & Domer, Milwaukee.

Amicus curiae brief was filed by Timothy G. Costello and Krukowski & Costello, S.C., Milwaukee for the Wisconsin Manufacturers & Commerce.

¶1 JON P. WILCOX, Justice

This case is on certification from the court of appeals following a jury trial. The jury concluded that the plaintiff, Ken Kempfer (Kempfer), was entitled to damages of $22,167 for past wages and benefits and $145,000 for future lost wages and benefits from Automated Finishing, Incorporated (AFI) for his wrongful discharge. The Circuit Court for Waukesha County, Patrick L. Snyder, Judge, denied AFI's motions after verdict. AFI appealed.

¶2 On certification, we consider: (1) whether, as a matter of law, Kempfer identified a fundamental and well-defined public policy, (2) whether Kempfer, an employee-at-will, demonstrated that he was terminated for refusing to act contrary to a fundamental and well-defined public policy; and (3) whether the circuit court erroneously exercised its discretion by allowing the jury to consider awarding damages of future wage loss. We hold that Kempfer identified a fundamental and well-defined public policy and that he was terminated for refusing to act contrary to that public policy; however, we also hold that the circuit court erroneously exercised its discretion when it allowed the jury to consider awarding damages for Kempfer's future wage loss. The circuit court should have determined whether reinstatement was feasible. If it was not feasible, the circuit court should have determined what amount, if any, of front pay was necessary to make Kempfer whole. Thus, we affirm in part and reverse in part the decision of the circuit court.

¶3 The relevant facts are not in dispute. Kempfer was hired by the defendant, AFI, on October 8, 1981. He was initially assigned to perform urethane mold work. After approximately five years, Kempfer's job duties began to vary and at some point AFI began to ask Kempfer and three other employees to make as-needed deliveries with a 22-foot International Harvester flatbed truck. The truck had been purchased in 1984 and its weight was registered with the Department of Transportation as 32,000 pounds. At the time Kempfer began driving the truck, AFI indicated that the only requirement was that the drivers hold a valid, regular driver license.

¶4 On March 1, 1993, Kempfer, while returning from a delivery, was stopped by a state patrol officer who had noticed that the truck had a cracked windshield. The officer issued warning tickets to AFI for the cracked windshield and to Kempfer for not having a commercial driver license (CDL). The officer explained that due to the weight of his truck Kempfer was required by law to hold a CDL and that further violations would result in personal fines and/or jail time.

¶5 When he returned to the plant, Kempfer gave both citations to the plant manager. Kempfer then made the first of four trips to the Department of Motor Vehicles (DMV) to learn more about the CDL requirements. He picked up some informational booklets about the CDL requirements which he later gave to his employer.

¶6 AFI subsequently asked Kempfer to drive the truck on six separate occasions. Kempfer refused each time stating that he did not have the required CDL to drive the truck. Kempfer stated that he was not told by AFI to get a CDL and that he would have needed to use AFI's truck to take the test. Accordingly, he never obtained a CDL.

¶7 On the morning of April 16, 1994, the plant manager again told Kempfer to drive the truck. Kempfer refused stating that he did not have the proper licensing. The plant manager found another employee to drive the truck, and reported Kempfer's refusal. As a result, Kempfer was suspended for two days. Kempfer then went to the DMV for a fourth time. An employee at the DMV called AFI to explain the CDL requirement for operation of the company truck.

¶8 Upon returning from his suspension on April 20, 1994, Kempfer was informed that his position had been eliminated, and, accordingly, he was fired. Kempfer's foreman, Mark Bonney, was also fired for refusing to sign Kempfer's suspension notice.

¶9 Kempfer filed suit alleging that he was wrongfully discharged for refusing to violate public policy. AFI argued at trial that Kempfer was released because of cost-cutting efforts to reduce the labor force. Following a three-day trial, the jury found that Kempfer was suspended and fired for his refusal to operate the company truck without a CDL. Kempfer was awarded back pay and benefits in the amount of $22,167. The jury also awarded Kempfer $145,000 for future lost wages and benefits. The circuit court denied AFI's motions after verdict and AFI appealed.

I.

¶10 The first issue that we address is whether as a matter of law, Kempfer identified a fundamental and well-defined public policy. This issue is a question of law, Brockmeyer v. Dun & Bradstreet, 113 Wis.2d 561, 573-574, 335 N.W.2d 834 (1983), that this court reviews de novo. Winkelman v. Beloit Memorial Hospital, 168 Wis.2d 12, 24, 483 N.W.2d 211 (1992). The plaintiff-employee bears the burden of proving that the dismissal violates a clear mandate of public policy. Brockmeyer, 113 Wis.2d at 574, 335 N.W.2d 834.

¶11 Under the employee-at-will doctrine, an employer may discharge an employee-at-will "for good cause, for no cause, or even for cause morally wrong, without being thereby guilty of legal wrong." Id. at 567, 335 N.W.2d 834. However, this court has recognized a "narrowly circumscribed public policy exception" to this general rule. Id. at 574, 335 N.W.2d 834. Specifically, this exception provides that an employer may not discharge an employee for refusing a command to violate a fundamental and well-defined public policy. Bushko v. Miller Brewing Co., 134 Wis.2d 136, 141, 396 N.W.2d 167 (1986).

¶12 This court first recognized the public policy exception to the employee-at-will doctrine in Brockmeyer. In that case, this court explained what was meant by a fundamental and well-defined public policy:

Public policy is a broad concept embodying the community common sense and common conscience.... The provisions of the Wisconsin Constitution initially declared the public policies of this state. Each time the constitution is amended, that also is an expression of public policy. In addition, public policy is regularly adopted and promulgated in the form of legislation. These declarations of public policy are inherently incorporated into every employment at will relationship.

Given the vagueness of the concept of public policy, it is necessary that we be more precise about the contours of the public policy exception. A wrongful discharge is actionable when the termination clearly contravenes the public welfare and gravely violates paramount requirements of public interest. The public policy must be evidenced by a constitutional or statutory provision. An employee cannot be fired for refusing to violate the constitution or a statute. Employers will be held liable for those terminations that effectuate an unlawful end.

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.

Brockmeyer, 113 Wis.2d at 573, 335 N.W.2d 834 (emphasis added). However, this court warned:

Courts should proceed cautiously when making public policy determinations. No employer should be subject to suit merely because a discharged employee's conduct was praiseworthy or because the public may have derived some benefit from it.

Id. at 573-74, 335 N.W.2d 834. This court's rejection of an expansive exception to the employee-at-will doctrine is also illustrated by the refusal in Brockmeyer to impose an implied covenant and fair dealing on employers:

We refuse to impose a duty to terminate in good faith into employment contracts. To do so would "subject each discharge to judicial incursions into the amorphous concept of bad faith." Moreover, we feel it unnecessary and unwarranted for the courts to become arbiters of any termination that may have a tinge of bad faith attached. Imposing a good faith duty to terminate would unduly restrict an employer's discretion in managing the work force.

Id. at 569, 335 N.W.2d 834 (citation omitted).

¶13 This court again considered Wisconsin's narrow public policy exception to the employee-at-will doctrine in Bushko, 134 Wis.2d 136, 396 N.W.2d 167. In that case, this court considered whether the public policy exception included employees who were discharged for acting consistent with a fundamental and well-defined public policy when there was no order by the employer to violate the public policy. This court stated:

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...