Mursch v. Van Dorn Co.

• Decision Date: 03 February 1986
• Docket Number: No. 85-C-847-C.,85-C-847-C.
• Citation: 627 F. Supp. 1310
• Parties: Bruce T. MURSCH, Plaintiff, v. VAN DORN COMPANY, d/b/a Central States Can Company, Defendant.
• Court: U.S. District Court — Western District of Wisconsin

627 F. Supp. 1310

Bruce T. MURSCH, Plaintiff, v. VAN DORN COMPANY, d/b/a Central States Can Company, Defendant.

No. 85-C-847-C.

United States District Court, W.D. Wisconsin.

February 3, 1986.

Bryan Wycoff, Dempsey Law Offices, Whitewater, Wis., for plaintiff.

Carolyn C. Burrell, Foley & Lardner, Milwaukee, Wis., for defendant.

ORDER

CRABB, Chief Judge.

This action arises from plaintiff's discharge from employment as a sales representative for Central States Can Company. Plaintiff alleges that the sole reason for his termination was defendant's desire to replace him with a younger man. Plaintiff asserts claims of wrongful discharge, breach of contract, and violation of the Wisconsin Fair Employment Act. Defendant has moved to dismiss the complaint for failure to state a claim, and has moved to strike all of plaintiff's demands for relief other than lost wages.

FACTS

Taking the allegations of the amended complaint as true, and for the sole purpose of deciding this motion, I find the following facts.

Plaintiff Bruce T. Mursch is a resident of Helenville, Wisconsin. Defendant Van Dorn Company is an Ohio corporation with its home office and principal place of business in Cleveland, Ohio. Central States Can Company is a division of Van Dorn Company, with its principal place of business in Massillon, Ohio. At all times material to this action, defendant maintained commercial contacts with Wisconsin by selling products that it manufactures to Wisconsin businesses and by maintaining a sales territory in Wisconsin.

From May 18, 1981 to June 30, 1984, plaintiff was employed by defendant as a sales representative for the midwest region, pursuant to an oral contract for employment entered into on or about May 18, 1981.¹ The employment manual given to plaintiff when he was hired contains standards for determining the circumstances under which employees of the defendant will be terminated. These standards implied and indicated to plaintiff that he would not be fired except for the reasons stated in the manual or for just and reasonable cause. The manual states that the company has a policy of equal employment regardless of age, sex, race, color, religion or national origin, and provides for punishing any employee who breaks this policy. Company personnel promised plaintiff that he would not be terminated as long as he increased his sales output. Plaintiff relied on these promises, guidelines and policies, and performed all duties, obligations and conditions of his employment. During his employment, plaintiff increased his sales output.

On May 22, 1984, plaintiff's supervisor notified plaintiff that his employment was terminated. Prior to his termination, plaintiff's superiors had made no complaints to him to indicate that they were in any way dissatisfied with his performance as a sales representative. Plaintiff was terminated without just or reasonable cause, for reasons unrelated to the performance of his duties. The sole reason for terminating plaintiff was his age (48 years old), in order to replace him with a younger person, contrary to defendant's policies and standards for employment as stated in defendant's employment manual. Because plaintiff is unable to explain his termination to the satisfaction of potential employers, he has lost numerous opportunities for employment. Despite diligent efforts to find new employment, plaintiff has been unemployed since he left Central States on June 30, 1984.

Central States, through its officers and representatives, hired a younger man to replace plaintiff. George Smart, president of Central States, Gerald Bowman, vice-president in charge of administration of Central States, Lawrence Jones, president and chairman of the board of Van Dorn, and Paul Weston, plaintiff's supervisor, knew that the reason plaintiff was fired was to replace him with a younger man, and each of them acted intentionally to terminate plaintiff or approve his termination because of his age.

As a result of his termination, plaintiff suffered extreme emotional distress, humiliation, physical illness, loss of professional reputation, loss of wages, and other pecuniary damages. Plaintiff seeks back pay, compensatory damages, punitive damages, and reinstatement to his position as sales representative.

OPINION

Wisconsin Fair Employment Act

In his first cause of action, plaintiff asserts that defendant's actions violated the Wisconsin Fair Employment Act, Wis.Stat. §§ 111.31-111.395 (1983-84). Defendant argues that the administrative remedies available under the act are exclusive, and that plaintiff has no private right of action for violation of the act's provisions.

The Wisconsin Fair Employment Act prohibits employment discrimination on the basis of age. See Wis.Stat. §§ 111.321 and 111.33. The act provides that the Department of Industry, Labor and Human Relations shall administer its provisions, and gives the department authority to investigate complaints of discrimination, hold hearings, and to order relief, including back pay. See Wis.Stat. §§ 111.375 and 111.39. Administrative findings and orders are subject to judicial review. See Wis. Stat. § 111.395.

The Supreme Court for the State of Wisconsin first discussed the availability of private actions under the state's fair employment act in Ross v. Ebert, 275 Wis. 523, 82 N.W.2d 315 (1957). The court applied the general rule that when a statute creates a right and a remedy, the statutory remedy is exclusive. 275 Wis. at 528, 82 N.W. 315. The court held that, assuming the act had created a new right (to be free from racial discrimination in labor union membership), the administrative remedies established in the act were the exclusive remedies available to plaintiffs. The court acknowledged that the statutory remedies of investigation, publicity, and moral suasion provided plaintiffs with only "cold comfort." Id. at 579, 82 N.W.2d 315. Id. at 528-29, 82 N.W.2d 315.

Nearly two decades later, the state supreme court reconsidered the exclusivity of administrative remedies under the Wisconsin Fair Employment Act in Yanta v. Montgomery Ward & Co., Inc., 66 Wis.2d 53, 224 N.W.2d 389 (1974). In Yanta, the Department of Industry, Labor and Human Relations had found that the plaintiff had suffered from employment discrimination, and awarded prospective relief in the form of reinstatement. After the administrative proceedings had concluded, the legislature amended the fair employment act, giving the department the authority to award back wages in addition to prospective relief. The court held that this amendment also conferred a private right of judicial action for back wages upon the plaintiff. The court reasoned that the amendment signalled the legislature's intent that victims of employment discrimination should be able to recover back wages, and that the plaintiff should not be prevented from recovering back wages merely because the statutorily-provided administrative forum lacked authority to grant that relief at the time she made her complaint. 66 Wis.2d at 61-62, 224 N.W.2d 389.

Yanta did not expressly overrule Ross v. Ebert, nor did it expressly state that the private right of action is limited to claims accruing prior to the 1973 back pay amendment. See Comment, Wisconsin's Fair Employment Act: Coverage, Procedures, Substance, Remedies, 1975 Wis.L.Rev. 696, 727 n. 219. Thus, the question remained whether Yanta broadly sanctioned private actions under the fair employment act. In Bachand v. Connecticut General Life Insurance Co., 101 Wis.2d 617, 305 N.W.2d 149 (Ct.App.1981), the Wisconsin court of appeals construed Yanta narrowly to have created a private cause of action only in the anomalous situation that occurred when the legislature expanded statutory remedies after an aggrieved plaintiff had exhausted administrative enforcement mechanisms.

Implicit in the supreme court's framing of the issue in Yanta was the realization that while the legislature now mandated a benefit in the form of lost wages for discriminatory acts, that relief was unavailable from the administrative agency at the time the plaintiff pursued her DILHR action. Therefore, the plaintiff in Yanta had a right and a remedy but no forum. The supreme court concluded that it was the will of the legislature to allow a suit for lost wages. It inferred that since the new remedy was not available to the plaintiff in the DILHR action because the administrative remedy had already been terminated, it could be tried as a private action in the circuit court. The supreme court cautioned that judicial creation of a private cause of action would be contrary to legislative intent. The court stated, however, that in allowing the plaintiff to pursue a civil action, it was not creating a judicial cause of action. It was only giving the plaintiff a forum to pursue her rightful remedy as mandated by the legislature.

101 Wis.2d at 625, 305 N.W.2d 149. The court of appeals held that Yanta created a private cause of action only in cases in which statutory remedies were unavailable administratively. Id. at 626, 305 N.W.2d 149.

Federal district courts in Wisconsin have disagreed whether the court of appeals interpreted Yanta correctly in Bachand.² At least two judges in the Eastern District of Wisconsin have read Yanta broadly as creating a private right of action under the WFEA. See Zimmer v. Manitowoc Shipbuilding, Inc., 603 F.Supp. 1159, 1162 (E.D.Wis.1985) (Judge Warren); Shanahan v. WITI-TV, Inc., 565 F.Supp. 219, 222 (E.D.Wis.1982) (Chief Judge Reynolds). Other district courts have concluded that there is no private cause of action under the fair employment act other than in the particular situation in which Yanta arose. See Gunderson v. Riverview Hospital Association, case no. 84-C-533-S (W.D.Wis. Dec. 21, 1984) (Judge Shabaz); McCluney v. Jos. Schlitz Brewing Co., 489 F.Supp. 24, 26 (E.D.Wis.1980) (Judge Gordon).

In Elbe v. Wausau Hospital Center, 606 F.Supp. 1491, 1500 (W.D.Wis.1985)...