Winkelman v. Beloit Memorial Hosp.

• Decision Date: 23 January 1992
• Docket Number: No. 90-0541,90-0541
• Citation: 168 Wis.2d 12,483 N.W.2d 211
• Parties: , 60 USLW 2763, 7 IER Cases 686 Betty WINKELMAN, Plaintiff-Respondent-Cross Appellant, v. BELOIT MEMORIAL HOSPITAL, Defendant-Appellant-Cross Respondent. . Oral Argument
• Court: Wisconsin Supreme Court

Page 211

483 N.W.2d 211

168 Wis.2d 12, 60 USLW 2763, 7 IER Cases 686

Betty WINKELMAN, Plaintiff-Respondent-Cross Appellant, v. BELOIT MEMORIAL HOSPITAL, Defendant-Appellant-Cross Respondent.

No. 90-0541.

Supreme Court of Wisconsin.

Oral Argument Jan. 23, 1992.

Opinion Filed May 6, 1992.

For the defendant-appellant-cross respondent, there were briefs by Jere W. Wiedenman, David Lucey and Foley & Lardner, Milwaukee and oral argument by Mr. Lucey.

For the plaintiff-respondent-cross appellant, there were briefs by Richard R. Grant and Consigny, Andrews, Hemming & Grant, S.C., Janesville and oral argument by Richard R. Grant.

HEFFERNAN, Chief Justice.

This is an appeal by Beloit Memorial Hospital from a judgment of the circuit court for Rock county, Edwin C. Dahlberg, Circuit Judge, which adjudged that the hospital wrongfully discharged Betty Winkelman, and also a cross appeal by Betty Winkelman from the part of the judgment dismissing her claims based upon contract. The appeals were accepted upon the certification of the Court of Appeals. We affirm the circuit court.

The specific issue certified by the court of appeals is whether the cause of action for wrongful discharge established in Brockmeyer v. Dun & Bradstreet, 113 Wis.2d 561, 335 N.W.2d 834 (1983) based upon public policy may be grounded upon an administrative rule. We conclude that in this case it may. Where a fundamental and well-defined public policy is evidenced by an administrative rule, a discharge for an employee's refusal to violate that public policy is actionable. In addition, we hold that attorney's fees are unavailable in a wrongful discharge cause of action.

Betty Winkelman graduated from nursing school in 1947, obtained a bachelor's degree in nursing from Boston University in 1953 and earned a master's degree in nursing service administration from the University of Chicago in 1956. She worked as a maternity nurse and clinical instructor in several hospitals from 1956 to 1958, and then left nursing for 13 years in order to raise her family. From 1971 to 1987, Beloit Memorial Hospital employed Winkelman as a part-time nurse. During this time, Winkelman worked only on weekends and exclusively in the nursery.

Prior to October, 1987, the hospital maintained an unofficial policy of requiring maternity nurses who were not needed in the maternity ward to "float" to other parts of the hospital where nursing help was needed. According to the testimony at trial, floating involves moving to another part of the hospital and assisting with whatever nursing duties are required. During this period, Winkelman did not float. Winkelman testified that at the time of her hiring in 1971 she informed the hospital that she wanted to work only in the nursery, and that the hospital agreed to that arrangement. According to Winkelman's testimony, "it was known" that she would not float.

On October 29, 1987, the hospital promulgated specific guidelines for floating from the maternity ward. The guidelines required all nurses in the ward to float when not needed in the maternity ward, and instructed that "[t]he responsibilities of floating will be to do nursing care on a PRN basis, not in a team leading capacity." ¹ Pursuant to these guidelines, the maternity nurses developed a rotation book to keep track of whose turn it was to accept a float assignment.

On November 24, 1987, Winkelman arrived at the hospital and learned that the maternity ward was overstaffed. Because of a need in another part of the hospital, the maternity nurses were told that one of them would have to float to "3-Center," an area of the hospital involving post-operative and geriatric care. The rotation book indicated that it was Winkelman's turn to float. Winkelman said that she did not think she was qualified to float, and that she would go talk to the supervisor about it. Winkelman then discovered that a new supervisor, Sandra Linebarger, had started work that morning.

The evidence regarding Winkelman's meeting with Linebarger is conflicting. Winkelman testified that she told Linebarger that she had never floated, that she was exclusively a nursery nurse, that she was unqualified to float to 3-Center and that floating would put the patients at risk, her license at risk, and the hospital in jeopardy. According to Winkelman, Linebarger gave her three options: float, find another nurse to float in her place, or take an unexcused absence day and go home. Linebarger testified that she offered Winkelman only two options--float or find a replacement. Winkelman went home.

The hospital sent Winkelman a letter telling her that it construed her actions as a voluntary resignation of her employment at the hospital. Winkelman denied that she had resigned and requested reinstatement. The hospital refused.

In November, 1988, Winkelman filed a complaint against Linebarger with the state Board of Nursing. Winkelman alleged that Linebarger violated Board of Nursing rules by assigning her to float to 3-Center. ² The Board of Nursing assigned a regulation compliance investigator and an attorney to investigate the complaint. The extent of this investigation is unclear, but it is clear that neither Winkelman nor her co-workers were interviewed. Representatives of the Division of Enforcement presented the results of the investigation to the Board of Nursing and on January 19, 1989, the Board voted to close the case because it found no violation of any statute or rule.

On December 22, 1988, Winkelman filed a complaint for wrongful discharge and breach of contract against the hospital. The complaint alleged that the hospital's actions constituted a wrongful discharge of Winkelman "contrary to a fundamental and well-defined public policy...." The alleged public policy violated by the hospital is stated in Wis.Admin.Code sec. N 7.03(1)(g), which provides that "negligence" as used in sec. 441.07(1)(c), Stats., includes: "[o]ffering or performing services as a licensed practical nurse or registered nurse for which the licensee or registrant is not qualified by education, training or experience." ³ Section 441.07(1)(c), Stats., provides that the Board of Nursing may revoke, limit, suspend or deny renewal of a nurse's license for acts constituting negligence. Winkelman also claimed that the hospital violated its own disciplinary policy and breached a specific promise to Winkelman that she would work in the nursery only.

The circuit court dismissed Winkelman's breach of contract claims prior to submitting the case to the jury, but allowed the wrongful discharge action to go to the jury. The judge instructed the jury as follows:

In Wisconsin, an employer may discharge an employee for a good reason, for no reason, or even for a reason that is morally wrong, without committing a legal wrong. One exception to this rule is where an employee is discharged for refusing an employer's command to do something that would itself violate a well-established and important public policy. Public policy in Wisconsin declares that a Registered Nurse shall not perform services for which he or she is not qualified by education, training or experience. If you find that the plaintiff did not quit her job, then you must consider whether this "public policy exception" applies to the case.

The plaintiff claims that she was fired because she refused to perform nursing services on 3 Center for which she claims she was not qualified.

The jury found that Winkelman was wrongfully discharged by the hospital, and awarded her $39,344 in lost earnings. The circuit court denied Winkelman's post-verdict motion for attorney's fees.

The hospital appeals the judgment of wrongful discharge on two grounds. First, the hospital contends that an administrative rule cannot supply a public policy to support a wrongful discharge action--that only a statutory or constitutional provision will suffice. Second, the hospital argues that even if Winkelman alleged a public policy, the evidence produced at trial was insufficient to support the jury's determination that it was violated. Winkelman cross appeals the circuit court's denial of her motion for attorney's fees. ⁴ We consider each of these arguments in turn.

Under the employment-at-will doctrine, either the employer or the employee may terminate the employment relationship " '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 834. In Brockmeyer, this court recognized a limited exception to the employment-at-will doctrine "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 834. We further explained the concept of public policy:

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.

Id. Later cases established that the wrongful discharge cause of action encompasses public policy embodied in the spirit as well as the letter of statutory and constitutional provisions. Wandry v. Bull's Eye Credit Union, 129 Wis.2d 37, 49, 384 N.W.2d 325 (1986), Bushko v. Miller Brewing Co., 134 Wis.2d 136, 143, 396 N.W.2d 167 (1986), Schultz v. Production Stamping, 148 Wis.2d 17, 22, 434 N.W.2d 780 (1989).

The question presented by this case is whether the wrongful discharge cause of action should embrace public policy evidenced by an administrative rule. In this case, the public policy identified by the circuit court and presented to the jury...