Mackenzie v. Miller Brewing Co.

• Decision Date: 22 February 2000
• Docket Number: No. 97-3542.,97-3542.
• Citation: 234 Wis.2d 1,2000 WI App 48,608 N.W.2d 331
• Parties: Jerold J. MACKENZIE, Plaintiff-Respondent-Cross-Appellant, v. MILLER BREWING COMPANY and Robert L. Smith, Defendants-Appellants-Cross-Respondents, Patricia G. BEST, Defendant-Cross-Respondent.
• Court: Wisconsin Court of Appeals

234 Wis.2d 1

2000 WI App 48

608 N.W.2d 331

Jerold J. MACKENZIE, Plaintiff-Respondent-Cross-Appellant,¹ v. MILLER BREWING COMPANY and Robert L. Smith, Defendants-Appellants-Cross-Respondents, Patricia G. BEST, Defendant-Cross-Respondent.

No. 97-3542.

Court of Appeals of Wisconsin.

Oral argument August 18, 1999.

Decided February 22, 2000.

On behalf of the defendants-appellants-cross-respondents and the defendant-cross-respondent, the cause was submitted on the briefs of Mary Pat Ninneman, John A. Casey and Frank J. Daily of Quarles & Brady, of Milwaukee. There was oral argument by John A. Casey and Frank J. Daily.

On behalf of the plaintiff-respondent-cross-appellant, the cause was submitted on the briefs of Michael A. I. Whitcomb of Michael A. I. Whitcomb, S.C., of Milwaukee, and Gerald P. Boyle of Boyle, Boyle & Smith, S.C., of Milwaukee. There was oral argument by Michael A. I. Whitcomb and Gerald P. Boyle.

A nonparty brief was filed by Patrick O. Dunphy and Mark L. Thomsen of Cannon & Dunphy, S.C., of Brookfield, for Wisconsin Academy of Trial Lawyers.

A nonparty brief was filed by Donald L. Heaney and Kenneth B. Axe of Lathrop & Clark, of Madison, for Wisconsin Manufacturers and Commerce.

A nonparty brief was filed by Lisa M. Bergersen of Lindner & Marsack, S.C., of Milwaukee, for Human Resources Management Association. A nonparty brief was filed by Lisa C. Paul of Croen & Barr, LLP, of Milwaukee, and Janet L. Heins of Heins Law Office LLC, of Mequon, for Wisconsin Employment Lawyers Association.

A nonparty brief was filed by Dennis R. McBride, of Milwaukee, for Equal Employment Opportunity Commission, and C. Gregory Stewart, Philip B. Sklover, Lorraine C. Davis, and Robert J. Gregory, of Washington, D.C., for U.S. Equal Employment Opportunity Commission.

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

s 1. SCHUDSON, J.

After years of litigation, including a three week jury trial, this case comes here with a record of more than ten thousand pages, briefs from the parties totaling more than three hundred pages, and amicus curiae briefs from: the Human Resources Management Association, the Wisconsin Academy of Trial Lawyers, the Wisconsin Employment Lawyers Association, Wisconsin Manufacturers and Commerce, and the United States Equal Employment Opportunity Commission. The issues are many and the arguments, at times, are intricate. In this decision, we concentrate on the most significant, dispositive issues. We do so, however, only after carefully considering the entire record, all the briefs, the oral arguments to this court,² and the supplemental letter briefs following oral argument.

I. INTRODUCTIONâ STATUS ON APPEAL AND CROSS-APPEAL

s 2. The Miller Brewing Company and Robert L. Smith (collectively, "Miller") appeal from the judgment, following a jury trial, awarding Jerold J. Mackenzie more than twenty-five million dollars for what he alleged was intentional misrepresentation leading him to continue his employment at Miller Brewing. Miller argues that, under established legal principles, as most recently reiterated in Tatge v. Chambers & Owen, Inc., 219 Wis. 2d 99, 579 N.W.2d 217 (1998)â a case decided subsequent to the trial court litigation in the instant caseâ Mackenzie's claims could not be maintained in tort and, even if they could, Mackenzie failed to prove any of the elements of intentional misrepresentation. Miller also argues that Mackenzie failed to establish any basis for the jury's award of punitive damages and, even if he did, the punitive damages were excessive.

s 3. We need not consider Miller's several substantial arguments challenging the punitive damages because, we conclude, under Tatge, Mackenzie's claim for intentional misrepresentation was not actionable in tort. Further, we conclude that even if Tatge does not preclude Mackenzie's claim as a matter of law, Mackenzie failed to prove: that Miller misrepresented or concealed anything it had a duty to disclose; that Miller intended to deceive him; that he relied on any alleged misrepresentation; or that he was financially damaged as a result of misrepresentation. Accordingly, on the primary issues on which Miller appeals, we reverse.

s 4. Miller also appeals from the judgment against Smith, following the same jury trial, awarding Mackenzie $100,000 for tortious interference with a prospective contract, resulting from what Mackenzie alleged was Smith's effort to prevent him from being promoted. Miller argues that Smith's conductâ commenting on why he believed Mackenzie should not be promotedâ was privileged and, further, that regardless of any arguable privilege, Mackenzie failed to prove any interference. Miller is correct and, therefore, we also reverse the judgment against Smith.

s 5. Mackenzie cross-appeals from two trial court orders. He presents several arguments challenging the trial court's conclusion that the jury's award of $1,500,000 punitive damages against Patricia G. Best, a Miller Brewing employee, for tortious interference with his employment relationship, could not be sustained because the jury failed to award compensatory damages against Best. Mackenzie contends that, given what he views as the undisputed evidence of compensatory damages caused by Best, the trial court should have changed the jury's answer on compensatory damages to conform to the proof. Alternatively, he contends that the inconsistency of the compensatory and punitive damages verdicts requires a new trial on the issue of compensatory damages against Best.

s 6. Additionally, and alternatively, Mackenzie maintains that, given the overlapping evidence supporting his claims against Miller and Best, and under the trial court's jury instruction on punitive damages regarding his claim against Best, the compensatory damages the jury awarded against Miller Brewing and Smith support the punitive damages the jury awarded against Best. Finally, Mackenzie maintains that even if, generally, punitive damages cannot stand in the absence of compensatory damages, an exception should exist to allow punitive damages here because of the "inherently damaging" nature of a false complaint of sexual harassment s 7. Concluding that Mackenzie's recoveries against Miller Brewing and Smith must be reversed, we have left him without any compensatory damages against Miller Brewing, Smith, or Best. Thus, even if Mackenzie's arguments about the interplay of the Miller/Best compensatory/punitive damages verdicts otherwise could have prevailed, the absence of any compensatory damages precludes the punitive damage award against Best. Therefore, we need not address all of Mackenzie's arguments challenging the trial court's decision regarding the punitive damages verdict against Best; some of them simply are not viable given our reversal of the judgments against Miller Brewing and Smith. Nevertheless, a number of Mackenzie's intriguing theories survive and still must be addressed. For reasons we will explain, we reject them also and, therefore, on this aspect of Mackenzie's cross-appeal, we affirm the dismissal of the claim against Best.

s 8. Mackenzie also cross-appeals from the trial court's order, granting partial summary judgment to Miller, dismissing his claim for wrongful termination. He argues that even though he was an "at-will" employee, Miller Brewing could not terminate him based on allegations of sexual harassment because, he maintains, public policy precludes the dismissal of an employee unless the sexual harassment allegations are substantiated. We conclude, however, that Mackenzie failed to establish that he would fall within the public policy exception for termination of "at-will" employees articulated in Brockmeyer v. Dun & Bradstreet, 113 Wis. 2d 561, 573, 335 N.W.2d 834 (1983) ("A wrongful discharge is actionable when the termination clearly contravenes the public welfare and gravely violates paramount requirements of public interest. . . . An employee cannot be fired for refusing to violate the constitution or a statute."). Indeed, he failed to even allege that he was "discharged for refusing to violate a constitutional or statutory provision," see Bushko v. Miller Brewing Co., 134 Wis. 2d 136, 141, 396 N.W.2d 167 (1986),

or that he was terminated for complying with a "fundamental and well-defined" legal duty, see Hausman v. St. Croix Care Ctr., 214 Wis. 2d 655, 669, 571 N.W.2d 393 (1997). Thus, partial summary judgment was appropriate and, therefore, on this aspect of the cross-appeal, we also affirm.

II. FACTUAL BACKGROUND

s 9. Although many additional facts will emerge in our discussion of each issue, a brief synopsis will help to frame this appeal and cross-appeal.

s 10. Mackenzie worked for Miller Brewing from 1974 until his termination in 1993. Moving up the corporate ladder of what were termed "grade level" positions, he relocated to Milwaukee for a second time in 1982 when he was promoted to a grade level 14 position. In 1987, he held a grade level 14 position under the supervision of Robert Smith.

s 11. In October 1987, Miller Brewing, in the course of reorganizing various aspects of its distribution and sales services, hired William Glickert who became Mackenzie's immediate supervisor and took over many of his responsibilities. As a result, Mackenzie asked Smith whether the reorganization affected his (Mackenzie's) grade level. Mackenzie testified that Smith assured him that his grade level 14 status was unaffected by the reorganization. Smith acknowledged that such a conversation may well have occurred and that he would have so advised Mackenzie because, in fact, the reorganization had not altered Mackenzie's grade level, salary, or benefits s 12. In May 1989, Miller Brewing evaluated the grade levels of hundreds of employees. As a result, certain job classifications were assigned a higher grade level, others a lower one, and still others were left unchanged. Ultimately, 835 employees were in job classifications assigned...