MacKenzie v. Miller Brewing Co.
MacKenzie v. Miller Brewing Co.
Concurring Opinion
¶ 32. (concurring). The lengthy majority opinion boils down to adopting this rule of law: When an employer deliberately and intentionally lies to an at-will employee to induce the employee to continue employment and the employee continues to work relying on those lies, and then sustains damages as a result of reliance on the lies, the employee cannot sue in a tort action for damages. I cannot join this opinion.
¶ 33. Wisconsin's general rule of law is that everyone is liable for damages for intentional misrepresentation.
¶ 35. For the reasons set forth, I write separately.
¶ 36. I am authorized to state that Justice WILLIAM A. BABLITCH joins this concurrence.
The elements of the tort of intentional misrepresentation are: the defendant made a representation of fact; the representation of fact was untrue; the untrue representation was made by the defendant knowing the representation was untrue or recklessly without caring whether it was true or false; the defendant made the representation with intent to deceive and induce the plaintiff to act upon it to the plaintiffs pecuniary damage; and the plaintiff believed such representation to be true and relied on it. See Wis JI — Civil 2401.
The majority overlooks persuasive authority from numerous jurisdictions that have allowed this cause of action in the
Other theories of recovery exist. See, e.g., ¶24 of the majority opinion; Brodsky v. Hercules, Inc., 966 F.Supp. 1337, 1351 (D. Del. 1997) (a cause of action for breach of an implied covenant of good faith and fair dealing exists when the employer misrepresents some important fact, most often the employers' present intention, and the employee relies thereon either to accept a new position or remain in a present one).
Opinion of the Court
¶ 1. The question in this case is whether an at-will contract employee can maintain an action against his or her employer in tort for intentional misrepresentation to induce continued employment. Because we believe that it would be imprudent for this court to recognize such a cause of action at this time, we conclude, that those who are party to an at-will contract must seek recourse in contract rather than tort law.
¶ 3. Mackenzie was hired by Miller in 1974 as an area manager of Miller distributors with a salary grade level of 7.
¶4. In August of 1992 Miller sent a memo to employees whose positions had been downgraded but who had been grandfathered to their current grade level informing them that they would be downgraded to their position grade level. Therefore, as of January 1, 1993, Mackenzie would be at grade level 13. He would receive the same salary and benefits of a grade level 14, but he would not be entitled to any future grants of stock options.
¶ 5. On March 23, 1993, Best, a Miller distributor services manager who had previously reported to Mackenzie, told her supervisor, Dave Goulet, that Mackenzie had told her about a sexually suggestive episode of the "Seinfeld" television show, which made her uncomfortable. Miller immediately investigated the matter and Mackenzie denied sexually harassing Best. After concluding its investigation, Miller discharged Mackenzie for "exercising poor judgment."
¶ 6. Mackenzie subsequently commenced this suit on September 29, 1994. He alleged four causes of action in tort against Miller, Smith, and Best: (1) intentional misrepresentation against Smith and Miller; (2)
¶ 7. However, the circuit court did grant Miller's motion for summary judgment as to the wrongful termination claim, but allowed Mackenzie's three remaining claims to survive. On June 23, 1997, a jury trial began and resulted in a verdict three weeks later. The jury awarded $6,501,500 in compensatory damages and $18,000,000 in punitive damages against Miller on the intentional misrepresentation claim. The jury also awarded $1,500 in compensatory damages and $500,000 in punitive damages against Smith on the same tort. The jury found Smith liable for tortious interference with Mackenzie's promotion and awarded him compensatory damages of $100,000. Finally, the jury failed to award Mackenzie any compensatory damages for tortious interference with contract against Best, but did award him $1,500,000 in punitive damages. The circuit court reduced the punitive damages against Smith to $100,000 — giving Mackenzie the option to take the reduction or risk a new trial on the issue of damages — and dismissed Mackenzie's claim
¶ 8. In an exhaustive opinion, the court of appeals reversed the judgment of the circuit court. Mackenzie v. Miller Brewing Co., 2000 WI App 48, 234 Wis. 2d 1, 608 N.W.2d 331. The majority found that this court's recent ruling in Tatge v. Chambers & Owen, Inc., 219 Wis. 2d 99, 579 N.W.2d 217 (1998), foreclosed the tort of intentional misrepresentation in the employment at-will context. Mackenzie, 2000 WI App 48 at ¶ 25. The court proceeded to examine whether Miller had a duty to disclose information to Mackenzie that potentially affected his decision to continue employment at Miller and determined that the creation of such a duty "would undermine sound public policy." Id. at ¶ 43.
¶ 9. Then Judge Charles Schudson, writing for the majority, examined Mackenzie's evidence to determine whether even if the court were to recognize such a tort, Mackenzie had met the elements. Id. at ¶¶ 44-61. In the court's view, Mackenzie failed to present any credible evidence upon which the jury's verdict could be based. Id. at ¶¶ 46, 48. Therefore, the court rejected his claim and reversed the circuit court decision.
A
¶ 11. This case requires us to revisit the question of whether there is a cause of action for the tort of misrepresentation in the employment context. Whether or not a plaintiff has a cause of action in tort is a question of law subject to de novo review. Slawek v. Stroh, 62 Wis. 2d 295, 317, 215 N.W.2d 9 (1974).
¶ 12. Although it is unclear when employment at-will became an embedded fixture of Wisconsin employment relations, we first implicitly recognized the doctrine in 1871. See Prentiss v. Ledyard, 28 Wis. 131, 133 (1871).
B
¶ 13. " Given the flexibility that employment at-will affords employees, this court has been reluctant to interpose the judicial branch between employees and employers. See Strozinsky v. District of Brown Deer, 2000 WI 97, ¶ 33, 237 Wis. 2d 19, 614 N.W.2d 443 ("Courts will not second guess employment or business decisions, even when those decisions appear ill-advised or unfortunate."). In Brockmeyer v. Dun & Bradstreet, 113 Wis. 2d 561, 572, 569, 335 N.W.2d 834 (1983), we recognized a narrow "public policy" exception to the doctrine of employment at-will and expressly rejected imposing a much broader "implied duty to terminate in good faith." Instead, this court adopted the "public pol
¶ 14. In Tatge, an employee was dismissed for refusing to sign a non-compete agreement, despite
¶ 15. Mackenzie attempts to evade the force of our opinion in Tatge by first arguing that there we were confronted with negligent misrepresentation, while here the cause of action is intentional misrepresentation. While the only cause of action that reached us in Tatge was negligent misrepresentation, we did not limit the holding in the manner that Mackenzie suggests. In Tatge, we stated unequivocally that "no duty to refrain from misrepresentation exists independently of the performance of the at-will employment contract." Id. at 108. Whether the misrepresentation was negligent or intentional was irrelevant to our holding that Tatge, like Mackenzie, failed to state a cause of action under Wisconsin law.
¶ 16. Mackenzie then argues that his "misrepresentation damages did not result from his termination, but from Miller and Smith's misrepresentations inducing the employment relationship. Absent the misrepresentations, Miller would not have been in a position to terminate Mackenzie because he would not have continued his employment with Miller." Therefore, Mackenzie maintains that his damages arise independently of his employment-at-will contract with Miller. Our Tatge opinion anticipated this argument.
We do not mean to suggest that litigants may circumvent the holding of this court simply by pleading damages which somehow do not arise solely from one's termination of employment. As we have said, a duty must exist independently from the performance of the employment contract in order to maintain a cause of action in tort.
Id. at n.4. Mackenzie is attempting to do exactly what we expressly prohibited in Tatge: circumvent the holding by pleading damages — his speculative loss of opportunity in finding employment elsewhere — that arose independently of the performance of the employment contract. We decline to overrule our decision in Tatge to create a new retroactive cause of action for Mackenzie.
f — l I — I
¶ 17. Although we have recognized a new cause of action in certain compelling instances, we are apprehensive of injecting the judiciary between employees
A
¶ 18. The cause of action that Mackenzie urges this court to inject into the employment-at-will context would be based on Wisconsin's fraudulent representation tort.
¶ 19. Injecting this cause of action into the at-will contract could require an employee to disclose informa
¶ 20. Indeed, Mackenzie's proposed broad cause of action fails to recognize the dynamic nature of at-will employment in practice. The employment at-will doctrine derives its vitality from the fact that the future is unknowable. Although the employee may tell his or her employer that he or she will be available for a certain period of time, subsequent events may cause the employee to leave, either to pursue an opportunity elsewhere or for some personal reason. Similarly, an employer may be unable to predict what will happen in the future. As Professor Epstein observed:
The future is not clearly known. More important, employees, like employers, know what they do not know. They are not faced with a bolt from the blue, with an 'unknown unknown.' Rather they face a known unknown for which they can plan. The at-will contract is an essential part of that planning [for the known unknown] because it allows both*719 sides to take a wait-and-see attitude to their relationship so that new and more accurate choices can be made on the strength of improved information.
Richard A. Epstein, In Defense of the Contract At Will, 51 U. Chi. L. Rev. 947, 969 (1984). The at-will employment doctrine creates a subtle contractual relationship between the employee and employer that enables each to deal with this known unknown, which is that the employee and employer both know that something will happen in the future, but neither the employee nor the employer knows what that something is. When a future event occurs, the employee and the employer have the freedom to respond appropriately. Interposing the courts — absent a clearly defined statute — into this subtle relationship could suppress its dynamic nature.
B
¶ 21. These unforeseen effects lead us to stay our hand from creating a new cause of action for intentional misrepresentation to induce continued employment.
Courts are not equipped to pursue the paths for discovering wise policy. A court is confined within the bounds of a particular record, and it cannot even shape the record. Only fragments of a social problem are seen through the narrow windows of a litigation. Had we innate or acquired understanding of a social problem in its entirety, we would not have at our disposal adequate means for constructive solution.
Such is the case here. The legislature, with all its resources and investigative powers, is the appropriate forum for such a sweeping policy decision, which would
¶ 22. In other circumstances, we likewise have declined to create a new cause of action that would dramatically alter our social fabric. In Slawek, we considered whether or not to recognize the tort of "wrongful birth" as a cause of action. While we acknowledged that this court has. the power to recognize such a cause of action, we declined because "recognition of a cause of action for wrongful birth would have vast social ramifications and the creation of such a cause of action is the type of public policy decision that should be made by the people of this state or their elected representatives." 62 Wis. 2d at 317-18. A cause of action for intentional misrepresentation to induce continued employment would similarly have profound economic ramifications and cause corresponding social changes. Hence, we believe that it would be inappropriate for us to abrogate the employment at-will doctrine by injecting into it a tort cause of action. See Tatge, 219 Wis. 2d at 107 ("We decline to give our blessing to such an irreverent marriage of tort and contract law.").
C
¶ 23. By asking us to recognize a tort cause of action in a contractual relationship, Mackenzie is essentially asking us to envelop contract law with tort law. It is undisputed that Mackenzie had an at-will contract with Miller. Rather than a breach of contract
¶ 24. In another case, the facts may support a remedy in contract law. For example, the employee handbook may form the terms of the employment contract and the employer or the employee may violate those terms. In Ferraro v. Koelsch, 124 Wis. 2d 154, 169, 368 N.W.2d 666 (1985), we held that "the particular personnel manual used by Hyatt. . .containing the conditions it did and which were specifically accepted by Ferraro and under which conditions he agreed to continue work, constituted a contract for something other than an employment contract terminable at will." We further noted that "we do not hold that all personnel manuals or employee handbooks will have that effect." Id.; see also Vorwald v. School Dist. of River Falls, 167 Wis. 2d 549, 558, 482 N.W.2d 93 (1992) (holding that a particular personnel policy without evidence that either party agreed to be bound by its terms did not create a contract, implied or otherwise). Thus, while a particular employee handbook could give rise to an action in contract, that is not the case presently before us.
¶ 25. Similarly, there might be a cause of action sounding in contract under promissory estoppel. We first recognized promissory estoppel in Hoffman v. Red Owl Stores, Inc., 26 Wis. 2d 683, 698, 133 N.W.2d 267 (1965). There, we asserted that three questions must be answered affirmatively to give rise to an action for
¶ 26. But here, the record demonstrates that there is no remedy for Mackenzie in contract law. Therefore, he seeks to shoehorn a tort cause of action into his at-will contractual relationship with Miller. Absent an applicable statute, we reject his attempt to create this tort within a contractual relationship and emphasize the need to preserve the boundary between tort law and contract law.
¶ 28. In contrast, contract law "is based on obligations imposed by bargain, and it allows parties to protect themselves through bargaining." State Farm, 225 Wis. 2d at 316-17 (citations omitted). Contract law does not involve the same broader societal concerns as tort law for "the individual limited duties implicated by the law of contracts arise from the terms of the agree
¶ 29. In the present case, Mackenzie freely consented to entering into a contractual at-will relationship with Miller in 1974 — there is no allegation that he was fraudulently induced into this relationship. During his tenure at Miller, he was free to leave
> HH
¶ 30. In conclusion, we hold that there is not a cause of action in Wisconsin for intentional misrepresentation to induce continued employment. Thus, Mackenzie failed to state a cause of action against Miller and Smith. We therefore affirm the decision of the court of appeals.
By the Court. — The decision of the court of appeals is affirmed.
The circuit court dismissed the wrongful termination claim against Miller at summary judgment. Mackenzie does not contest that ruling before this court.
Mackenzie has not raised the claim of tortious interference with prospective contract before this court.
The jury awarded Mackenzie $1,500,000 in punitive damages against Best, but the circuit judge dismissed the award because the jury failed to award Mackenzie any compensatory damages against Best.
Miller utilizes a grade level system that classifies each position according to responsibilities and corresponding salary range and benefits.
As noted earlier, the court of appeals also affirmed the circuit court's dismissal of Mackenzie's wrongful termination claim at summary judgment. Mackenzie v. Miller Brewing Co., 2000 WI App 48, 234 Wis. 2d 1, 608 N.W.2d 331. Mackenzie does not contest that ruling here. The court of appeals also reversed the ruling in favor of Mackenzie on his tortious interference with prospective contract action against Smith based on its review of the evidence. Id. at ¶¶ 62-70. Apparently, Mackenzie does not appeal that ruling either.
In Prentiss, this court did not use the term "employment at-will." Rather, in a contract dispute between an employee and his employer over the term of a services contract, this court merely stated that "[e]ither party, however, was at liberty to terminate the service at any time, no definite period for which the service was to continue having been agreed upon." Prentiss v. Ledyard, 28 Wis. 131, 133 (1871). Therefore, while Prentiss is the first Wisconsin case where the employment at-will doctrine
See Deborah A. Ballam, The Development of the Employment At Will Rule Revisited: A Challenge to Its Origins as Based in the Development of Advanced Capitalism, 13 Hofstra Lab. & Emp. L.J. 75 (1995) (observing that employment at-will was prevalent throughout the nineteenth century); Mayer G. Freed & Daniel D. Polsby, The Doubtful Provenance of "Wood's Rule" Revisited, 22 Ariz. St. L.J. 351 (1990) (noting that Wood's statement of the employee at-will rule was based on a well-established understanding of labor relations); Andrew P. Mor-riss, Exploding Myths: An Empirical and Economic Reassessment of the Rise of Employment At-Will, 59 Mo. L. Rev. 679 (1994) (disputing earlier scholarship on the employment at-will rule that had previously formed the basis for courts and commentators to advocate modification to the rule).
See Jay M. Feinman, The Development of the Employment At Will Rule, 20 Am. J. Legal Hist. 118, 135 (1976). According to Feinman, the employment at-will rule was essentially created by Horace Gray Wood in his 1877 treatise — six years after our own decision implicitly applied the doctrine in Prentiss — with little foundation and adopted by the judiciary throughout the country, which sought to preserve our free enterprise system. Feinman, 126, 135. Thus, he contended that in light of "radical political economics," it is apparent that "[i]n the context of the control of labor and the discharge of employees, [the employment at-will] rule served the purposes of the owners of capital." Id. at 135. According to Feinman, employment at-will was created at the end of the nineteenth century to support "the dominion of the owners of capital over their employees and their
Employment at will was adopted in colonial times in response to the unique economic conditions in the colonies created by the ready availability of free land, a severe labor shortage, and high labor costs. Laborers who could easily obtain free land wanted to work only long enough to accumulate enough capital to start their own farms and thus did not want to be bound to á long-term employment relationship.
Ballam, Employment At Will Rule Revisited, 13 Hofstra Lab. & Emp. L.J. at 88 n.86. Professor Ballam buttressed her observation in two subsequent articles that analyzed the law in nine states. See Deborah A. Ballam, The Traditional View on the Origins of the Employment-At-Will Doctrine: Myth or Reality, 33 Am. Bus. L.J. 1 (1995); Exploding the Original Myth Regarding Employment-At-Will: The True Origins of the Doctrine, 17 Berkeley J. Emp. & Lab. L. 91 (1995).
See Richard A. Epstein, In Defense of the Contract At Will, 51 U. Chi. L. Rev. 947, 982 (1984) (concluding that "[t]he flexibility afforded by the contract at will permits the ceaseless marginal adjustments that are necessary in any ongoing productive activity conducted. . .in conditions of technological and business change"); Mayer G. Freed & Daniel D. Polsby, Just Cause for Termination Rules and Economic Efficiency, 38 Emory L.J. 1097 (1989) (discussing the greater efficiency created by an at-will employment system, which serves both the worker and employer).
For example, Professor Holt argues that in the nineteenth century employers utilized the courts to hold employees to written employment contracts with specific terms, thereby revealing a bias against workers. Wythe Holt, Recovery by the Worker Who Quits: A Comparison of the Mainstream, Legal Realist, and Critical Legal Studies Approaches to a Problem of Nineteenth Century Contract Law, 1986 Wis. L. Rev. 677, 732 (1986).
In adopting this exception, we stated that ”[n]o employer should be subject to suit merely because a discharged employee's conduct was praiseworthy or because the public may have derived some benefit from it." Brockmeyer v. Dun & Bradstreet, 113 Wis. 2d 561, 573-74, 335 N.W.2d 834 (1983).
SRee Strozinsky v. District of Brown Deer, 2000 WI 97, 237 Wis. 2d 19, 614 N.W.2d 443 (finding that an employee can raise constructive discharge defense in public policy exception cases where the employer alleges voluntary resignation); Hausman v. St. Croix Care Ctr., 214 Wis. 2d 655, 668, 571 N.W.2d 393 (1997) (including situations where an employee is fired for his or her compliance with an affirmative obligation under the law); Kempfer v. Automated Finishing, Inc. ,211 Wis. 2d 100, 114, 564 N.W.2d 692 (1997) (holding that an employee cannot be forced to violate highway safety regulations); Bushko v. Miller Brewing Co., 134 Wis. 2d 136, 142-44, 396 N.W.2d 167 (1986) (limiting the scope of the public policy exception to situations where the employee is terminated for refusing a command, instruction, or request of the employer to violate public policy as established by existing law); Wandry v. Bull's Eye Credit Union, 129 Wis. 2d 37, 46-47, 384 N.W.2d 325 (1986) (extending Brockmeyer's public policy exception to include the "spirit" of a statutory provision).
We recently reiterated the fundamental principle of stare decisis in State v. City of Oak Creek, 2000 WI 9, ¶ 55 n.27, 232 Wis. 2d 612, 605 N.W.2d 526:
Fidelity to precedent, the doctrine of stare decisis 'stand by things decided', is fundamental to 'a society governed by the rule of law.' When legal standards 'are open to revision in every case, deciding cases becomes a mere exercise of judicial will, with arbitrary and unpredictable results.' (citations and quotations omitted).
Mackenzie argues in his brief to this court that "[allthough the tort [intentional misrepresentation to induce continued employment] is a novel one in Wisconsin, it is a logical and reasonable extension of the law of fraud to the workplace." We agree that the proposed cause of action for intentional misrepresentation to induce continued employment is novel, but we disagree that it is a logical and reasonable extension of the law of fraud. Instead, we believe this cause of
We note, as the court of appeals did below, that there is a distinction between actions involving fraudulent inducements to commence employment and fraudulent inducements to continue employment. See Mackenzie, 2000 WI App 48 at ¶ 30 n.5. The essential difference is that fraudulent inducement to commence employment occurs prior to the formation of the at-will contract. Of course, both employees and employers may be subjected to a fraud action based on conduct that occurred prior to the formation of an at-will contract.
If the ostensible reason for this new cause of action is to promote honesty in the workplace, employers as well as employees would be able to utilize a fraudulent misrepresentation to induce continued employment cause of action against each other. Under current Wisconsin law, employers do not stand in a fiduciary relationship with their employees. See Lehner v. Crane Co., 448 F. Supp. 1127, 1131 (E.D. Pa. 1978) (asserting that "an employer-employee relationship does not, in and of itself, give rise to a fiduciary relationship from which a duty to disclose could be derived"). Therefore, there is no distinction that would make this new cause of action applicable only to employees, unless this court were to arbitrarily fashion such a dichotomy. Such a dichotomy, however, would lack the clarity and legitimacy of statutory definitions of the key terms, such as "employee" and "employer."
See Gail L. Heriot, The New Feudalism.: The Unintended Destination of Contemporary Trends in Employment Law, 28 Ga. L. Rev. 167 (1993) (arguing that limiting the at-will doctrine
We have been unable to find any jurisdiction in this country that recognizes the cause of action advanced by Mackenzie.
Chicago Regional Economic Analysis and Information Office, Bureau of Labor Statistics (Dec. 15, 2000). There are no definite statistics on how many workers have at-will contracts, but since it is the default rule, most workers, except union members and independent contractors, work on an at-will basis.
Barry Hirsch & David Macpherson, Union Membership and Earnings Data Book: Compilations from the Current Population Survey, The Bureau of National Affairs, Inc., Washington, D.C. (1999).
Mackenzie acknowledges his inability to bring a contract action against Miller. In his brief, he states that "Mackenzie had no contract cause of action against Miller or Smith for their intentional misrepresentations. Miller did not break any promise."
In Merten, we acknowledged the important public policy of the freedom to contract by quoting the Supreme Court in Baltimore & Ohio Sw. Ry. Co. v. Voigt, 176 U.S. 498, 505 (1900): " 'if there is one thing which more than another public policy requires it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts, when entered into freely and voluntarily, shall be held sacred, and shall be enforced by courts of justice.'" Merten v. Nathan, 108 Wis. 2d 205, 212 n.5, 321 N.W.2d 173 (1982). Mackenzie does not allege that he did not freely enter into his at-will contract with Miller.
Reference
- Full Case Name
- Jerold J. MacKenzie, Plaintiff-Respondent-Cross-Appellant-Petitioner, v. Miller Brewing Company and Robert L. Smith, Defendants-Appellants-Cross-Respondents, Patricia G. Best, Defendant-Cross-Respondent
- Cited By
- 43 cases
- Status
- Published