Wilcox v. Niagara of Wisconsin Paper Corp.

• Decision Date: 23 July 1992
• Docket Number: No. 91-2407,91-2407
• Citation: 965 F.2d 355
• Parties: , 122 Lab.Cas. P 56,987, 7 IER Cases 812 Kenneth E. WILCOX, Plaintiff-Appellant, v. NIAGARA OF WISCONSIN PAPER CORPORATION and Elmer Beale, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 355

965 F.2d 355

61 USLW 2031, 122 Lab.Cas. P 56,987,

7 IER Cases 812

Kenneth E. WILCOX, Plaintiff-Appellant, v. NIAGARA OF WISCONSIN PAPER CORPORATION and Elmer Beale,

Defendants-Appellees.

No. 91-2407.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 27, 1992.

Decided June 4, 1992.

Rehearing and Rehearing En Banc Denied July 23, 1992.

Vincent R. Petrucelli, Petrucelli & Petrucelli, Iron River, Mich. (argued), for plaintiff-appellant.

Michael B. Apfeld, Godfrey & Kahn, Milwaukee, Wis., John J. McGirl, Jr. (argued), Tracy A. Sykes, James C. Ohly, Doherty, Rumble & Butler, Minneapolis, Minn., for defendants-appellees.

Before CUMMINGS and EASTERBROOK, Circuit Judges, and SHADUR, District Judge. ^*

SHADUR, District Judge.

Kenneth Wilcox ("Wilcox") brought this wrongful discharge action against his former employer Niagara of Wisconsin Paper Corporation ("Niagara") and against Niagara's Elmer Beale ("Beale"), claiming that Wilcox's discharge violated Wisconsin public policy. He charged Niagara with breach of his employment contract and Beale with tortious interference with his contractual rights in that respect. Although it is somewhat problematic to treat the ensuing Niagara-Beale motion as one for summary judgment under Fed.R.Civ.P. ("Rule") 56 (a subject explored in the first section of this opinion), the district court granted dismissal of the action in favor of both defendants in those Rule 56 terms. We affirm as to Beale, but we reverse and remand as to Niagara.

Procedural Considerations

Rule 56, like the rest of the Rules, has been in effect for over a half-century. Judicial receptivity to summary dispositions under Rule 56 has varied widely over that period, and it has taken a recent trilogy of Supreme Court decisions--Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) and Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)--to give a major boost to the Rule's utility as a vehicle for the final disposition of lawsuits without the need for an evidentiary hearing.

But what the parties and the district court have tendered here does not fit comfortably within the Rule 56 mold. Instead Niagara's motion is really one attacking the sufficiency of Wilcox's Complaint under either Rule 12(b)(6) or Rule 12(c)--a sort of one-way Rule 56 motion. If we were to agree with the district court's view of the Wisconsin statute that Wilcox summons to his aid, the case is over because Wilcox could not prevail even on his own version of the facts. But because we do not agree with the district court's reading, it remains for the factfinder--a jury--to determine whether or not Niagara really fired Wilcox for the reason claimed by Wilcox and, if so, whether or not Niagara's pre-firing demands on Wilcox were, as the Wisconsin statute at issue reads, "dangerous or prejudicial to [Wilcox's] life, health, safety or welfare."

That result is called for by the posture of the case as it evolved below. Although Niagara and Beale labeled their motion as one for summary judgment, their opening gun in support of that motion began in this fashion:

Although Defendants vehemently deny Plaintiff's allegations, for purposes of this summary judgment motion, this Court can assume the facts of this case are as set forth in the allegations of Plaintiff's First Amended Complaint and Jury Demand ("Complaint").

Wilcox met that motion on its own terms, though pointing out accurately enough that in substance it was really a Rule 12(c) motion for judgment on the pleadings. Accordingly Wilcox's counsel concluded the responsive memorandum by asking not for a judgment in Wilcox's favor but simply for denial of the motion. And the district judge then began his opinion granting the motion by referring expressly to the language that we have just quoted from defendants' initial memorandum of law. All that being true, it would plainly be inappropriate for us to foist upon the parties or the district judge a choice that they had not knowingly made--one calling for outright reversal without the opportunity to have the facts aired at trial.

Facts ¹

Wilcox was employed as Niagara's director of computer operations for 13 years. When Niagara's computer system malfunctioned during the week of March 27, 1989, ² Wilcox worked long hours on its repair. During that five-day work week he spent a total of 61 hours on the job, 35 of which he accumulated on Thursday and Friday alone.

Wilcox, who had undergone heart surgery during 1988, left work at 9:30 p.m. on Friday, March 31 after he began to experience angina pains. Later that evening the mill manager ³ called Wilcox at home and told him to be at work on both Saturday and Sunday. Wilcox explained that he was exhausted after working so many hours and was feeling ill, and he assured the manager that the computer system would be operational by the next Wednesday, April 5 (the first date on which it would be needed). Nonetheless the manager told Wilcox that he would be dismissed if he did not work over the weekend. Later that evening Wilcox was hospitalized due to his chest pain and he was released the next day with instructions to "take it easy."

Wilcox returned to work on Monday, April 3, and he did indeed complete all repairs required to make the computer system fully operational by April 5, the date on which Niagara had intended to resume production after a temporary shutdown that had resulted from a lack of orders. Thus Wilcox was as good as his word, and Niagara suffered no detriment at all from Wilcox's not having put in the additional hours that Niagara's manager had insisted upon.

Wilcox was fired on April 6. Although he was told that his dismissal was due to his poor management style, for present purposes we must accept his allegation that he was actually terminated because of his failure to work during the preceding weekend.

Wilcox's Claim Against Niagara

Wilcox has selected the proper legal rubric for his action against Niagara by suing it for breach of contract. As Brockmeyer v. Dun & Bradstreet, 113 Wis.2d 561, 575-76, 335 N.W.2d 834, 841 (1983) (footnote omitted) has explained Wisconsin law in that respect:

[W]e conclude that a contract action is most appropriate for wrongful discharges. The contract action is essentially predicated on the breach of an implied provision that an employer will not discharge an employee for refusing to perform an act that violates a clear mandate of public policy. Tort actions cannot be maintained.

Because Wilcox had no formal employment contract with Niagara and the term of his employment was indefinite, he was an "employee-at-will." Under the at-will doctrine in Wisconsin as in most other states, an employer is free to terminate an employee to whom it has no contractual obligations whenever and for whatever reasons it so desires: "for good cause, for no cause, or even for cause morally wrong, without being thereby guilty of legal wrong" (Brockmeyer, 113 Wis.2d at 567, 335 N.W.2d at 837).

Exceptions to the at-will doctrine have been created by various federal and state statutes that prohibit certain forms of discrimination (see id. at 567-68, 335 N.W.2d at 837-88). In addition, Brockmeyer recognized a "public policy exception" to the at-will doctrine, under which "an employee has a cause of action for wrongful discharge when the discharge is contrary to a fundamental and well-defined public policy as evidenced by existing law" (id. at 573, 335 N.W.2d at 840).

Wilcox contends that his discharge violated the public policy embodied in Wis.Stat. § 103.02, ⁴ which read at the time of Wilcox's termination (and had been in this same form since October 1975):

No person may be employed or be permitted to work in any place of employment or at any employment for such period of time during any day, night or week, as is dangerous or prejudicial to the person's life, health, safety or welfare. The department shall investigate, ascertain, determine and fix such reasonable classification, and promulgate rules fixing a period of time, or hours of beginning and ending work during any day, night or week, which shall be necessary to protect the life, health, safety or welfare of any person, or to carry out the purposes of ss. 103.01 to 103.03. The department shall, by rule, classify such periods of time into periods to be paid for at regular rates and periods to be paid for at the rate of at least one and one-half times the regular rates. Such investigations, classifications and orders shall be made pursuant to the proceeding in ss. 101.01 to 101.25 which are hereby made a part hereof, so far as not inconsistent with ss. 103.01 to 103.03, and every order of the department shall have the same force and effect as the orders issued under ss. 101.01 to 101.25 and the penalties therein shall apply to and be imposed for any violation of ss. 103.01 to 103.03. Such orders shall be subject to review in the manner provided in ch. 227.

In Wilcox's view, the first sentence's reference to "such period of time ... as is dangerous or prejudicial to the person's life, health, safety or welfare" reflects a legislative concern with the health and welfare of employees on an individual rather than a collective basis. But the statutory language is scarcely a model of precision in drafting--its second sentence seems to look in the other direction when it directs "the department" (in this instance the Department of Industry, Labor and Human Relations "Department" for purposes of this opinion) to promulgate rules specifying those hours of work that are necessary to protect the health and welfare of "any person."

Despite the second sentence's apparently mandatory language, Department has not responded by issuing a categorical determination of maximum hours. Instead Department's implementing regulation adopted in April...