Nissly v. La Crosse Area Convention and Visitors Bureau, Inc.
| Decision Date | 23 March 1993 |
| Docket Number | No. 92-1837,92-1837 |
| Citation | 175 Wis.2d 625,502 N.W.2d 283 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. Bruce NISSLY, Plaintiff-Appellant, v. LA CROSSE AREA CONVENTION AND VISITORS BUREAU, INC., Defendant-Respondent. |
| Court | Wisconsin Court of Appeals |
Before CANE, P.J., and LaROCQUE and MYSE, JJ.
Bruce Nissly appeals a summary judgment granted to the La Crosse Area Convention and Visitors Bureau (Bureau) dismissing his wrongful discharge action. Nissly argues (1) material issues of fact regarding whether he was a probationary employee at the time of his discharge preclude summary judgment on his breach of contract claim, (2) the discharge fell within the public policy exception to the at-will employee rule, (3) the discharge deprived him of a liberty interest without due process of law and (4) the discharge violated his free speech rights. 1 We reject his arguments and affirm.
On May 24, 1990, the Bureau hired Nissly as its executive director. When hired, Nissly signed a "Basic agreement." The basic agreement was handwritten by Barbara Donna, president of the Bureau's board of directors, and stated "Base Salary shall be $33,000.00 for a 6 month probationary period (ending Dec. 31, 1990)." The word "probationary" was inserted into the sentence by use of a caret. Nissly testified in his deposition that he does not remember whether the word "probationary" was inserted when he signed the contract. Donna and Patti Christopherson, another member of the Bureau's executive committee, stated in affidavits that the word "probationary" was inserted before Nissly signed the contract.
Donna gave Nissly an employee handbook shortly after he was hired. The effect of the handbook is disputed. Nissly contends that the handbook pertains to him and is part of his contract. The Bureau contends that the handbook was only in draft form, that Nissly was to revise it and that the handbook only applied to persons occupying positions in the organizational structure below Nissly. The handbook is addressed "TO OUR EMPLOYEES " and under the heading "PROBATIONARY PERIOD " states:
The first three months (90 days) you are employed by the Bureau, we consider as a "tryout". It gives you an opportunity to determine whether or not you are going to like it here, and it gives us a chance to find out whether your work, your attitude and your attendance measures up to our standards as a good employee.
During the course of Nissly's employment at the Bureau, he uncovered what he perceived to be conflicts of interest regarding advertising expenditures on the part of some of the members of the Bureau's board of directors. Nissly objected to a rise in the Bureau's advertising budget in a finance committee meeting on October 10, 1990. Concerns with Nissly's performance, including his failure to follow through on tasks, his absence from meetings and his lack of organization, were raised in an October 17, 1990, letter from Donna to Nissly. Nissly responded to these concerns and also raised his perception of conflicts of interest in an October 19, 1990, letter to Donna. On October 26, 1990, the Bureau's executive committee met and decided to terminate Nissly's employment. Nissly was told that his employment was terminated, but contends that he was never told that it could be terminated because he was within the six-month probationary period in the basic agreement. At the time of his termination, Nissly had been with the Bureau more than three months, but less than six months.
Nissly filed a wrongful discharge complaint, alleging several different grounds. The trial court granted the Bureau's motion for summary judgment and Nissly appealed. When reviewing a summary judgment decision, we follow the same methodology as the trial court. Kane v. Employer's Ins., 142 Wis.2d 702, 703, 419 N.W.2d 324, 325 (Ct.App.1987). The first step requires us to examine the pleadings to determine whether a claim for relief has been stated and a material issue of fact presented. Voss v. Middleton, 162 Wis.2d 737, 747, 470 N.W.2d 625, 628-29 (1991). If a claim for relief has been stated, inquiry then shifts to the moving party's affidavits or other proof to determine whether the moving party has made a prima facie case for summary judgment. Id. at 747-48, 470 N.W.2d at 629. If the moving party has made a prima facie case for summary judgment, we must examine the opposing party's affidavits and other proof to determine whether there exist disputed material facts or undisputed material facts from which reasonable alternative inferences may be drawn sufficient to entitle the opposing party to trial. Id. at 748, 470 N.W.2d at 629.
Nissly's complaint for breach of contract states a claim upon which relief may be granted. However, there are no material issues of fact presented. Nissly argues that the employee handbook modifies the basic agreement and sets a probationary period of three months. The Bureau argues that the handbook is not applicable to Nissly, and the six-month probationary period within the basic agreement controls. These arguments require the application of a legal standard to a set of undisputed facts, presenting a question of law that is appropriately dealt with on summary judgment. Caraway v. Leathers, 58 Wis.2d 321, 326, 206 N.W.2d 193, 196 (1973).
Generally, absent a contract to the contrary, employment is terminable at will by either party without cause. Clay v. Horton Mfg., 172 Wis.2d 349, 354, 493 N.W.2d 379, 381 (Ct.App.1992). An employee handbook may modify an employment contract. Id. However, an employer's mere issuance of an employee handbook to its employees is insufficient to alter an at-will employment relationship. Id. Whether an employee handbook becomes the terms and conditions of an employment contract depends upon the parties' intent. Id. Normally, where there is a dispute concerning the parties' intent, a fact issue is presented and summary judgment is inappropriate. Id. Here, however, even if we assume that the handbook applies to Nissly, as a matter of law the more specific six-month probationary period applies.
If the handbook is considered as part of the employment contract, then the contract contains two inconsistent statements regarding probationary periods: one general provision that all employees have three-month probationary periods, and one specific provision stating that Nissly has a six-month probationary period. Where there is an inconsistency between a specific provision and a general provision in a contract, the specific provision controls. Thomsen-Abbott Constr. Co. v. Wausau, 9 Wis.2d 225, 234, 100 N.W.2d 921, 926 (1960). Therefore, the six-month probationary period controls; Nissly was terminable at will, and his breach of contract claim must fail.
Nissly however argues that whether the term "probationary" was inserted in the basic agreement when he signed it is a material issue of fact that precludes summary judgment. The Bureau, the moving party, submits the affidavits of Donna and Christopherson stating the term "probationary" was inserted before Nissly signed the basic agreement. Considering the above rationale, this constitutes a prima facie showing that summary judgment is appropriate on the breach of contract issue. Nissly's only rebuttal is that he does not remember whether the term was inserted. A lack of memory is insufficient to create an issue of material fact.
Nissly next argues that his discharge was in violation of established Wisconsin public policy, and falls within an exception to the Wisconsin at-will employment rule. We disagree. In Brockmeyer v. Dun & Bradstreet, 113 Wis.2d 561, 335 N.W.2d 834 (1983), our supreme court recognized what it characterized as "a narrow public policy exception" to the at-will employment rule. The exception holds that a terminated employee may recover damages if the termination violates a well-established and important public policy. Id. at 572-73, 335 N.W.2d at 840. To state a claim for such wrongful discharge, the plaintiff-employee must first identify a fundamental and well-defined public policy, and then must prove that the discharge violated that policy. Winkelman v. Beloit Mem'l Hosp., 168 Wis.2d 12, 24, 483 N.W.2d 211, 216 (1992).
Nissly contends that the public policy violated is that calling for ethical conduct by the members of the board of directors of the Bureau. Although in his appellate brief Nissly mentions a La Crosse ordinance setting out a code of ethics, in his complaint he refers only to the "stated public policy of the State of Wisconsin as it relates to ethical and fiscal responsibilities of both public and private bodies and particularly bodies charged with the privilege and responsibility of the administration of public funds."
Whether the plaintiff has identified a fundamental and well-defined public policy is a question of law that we review without deference to the decision of the trial court. Id. While a municipal ordinance may espouse a fundamental and well-defined public policy, all municipal ordinances, like all administrative rules and all statutes, need not. Id. at 23-24, 483 N.W.2d at 215-16.
Even if we assume that Nissly has identified a fundamental and well-defined public policy, he has not shown that his discharge violated the applicable public policy. Wisconsin law mandates the discharge be for refusing a command to violate a fundamental and well-established public policy. Bushko v. Miller Brewing Co., 134 Wis.2d 136, 141, 396 N.W.2d 167, 170 (1986). 2 If the employee of his own volition acts consistently with public policy, he does no more than obey the law.
Such consistent action, without an employer's command to do otherwise, is merely praiseworthy conduct....
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