COURT OF APPEALS DECISION DATED AND RELEASED December 11, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0202
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
JACQUELINE A.
LANGENDORF,
Plaintiff-Appellant,
v.
T.D.H. MANUFACTURING,
INC.,
a domestic
corporation,
Defendant-Respondent.
APPEAL from an order of
the circuit court for Racine County:
DENNIS FLYNN, Judge. Affirmed.
Before Brown, Nettesheim
and Snyder, JJ.
PER
CURIAM. Jacqueline A. Langendorf appeals from an order
granting summary judgment dismissing her wrongful termination of employment
action against T.D.H. Manufacturing, Inc.
We conclude that as a matter of law there was no modification of
Langendorf's employment as an "at will" employee. We affirm the judgment.
Langendorf was hired by
T.D.H. on November 28, 1990. It was an
"at will" employment arrangement.
In May 1992, T.D.H. circulated as a standard operating procedure a
disciplinary policy. Under the policy,
any employee who violated a work rule four times within twelve months would be
terminated. On December 13, 1993,
Langendorf was promoted to shop foreman.
On July 5, 1994, she received a three-day disciplinary suspension for
poor job performance. By a letter of
July 9, 1994, Langendorf was informed that as part of a restructuring, her
position was eliminated effective immediately.
Langendorf alleges that
when she was promoted, T.D.H. agreed that rather than discharge her under the
disciplinary policy she would be demoted to production worker status. She claims that T.D.H. breached this agreement
by her discharge. T.D.H. argues that
Langendorf remained an "at will" employee subject to discharge at any
time for either poor job performance or as part of downsizing. The trial court found that there was no
dispute of material fact that Langendorf was an "at will" employee
subject to discharge at any time.
We review decisions on
summary judgment de novo, applying the same methodology as the trial
court. M & I First Nat'l Bank
v. Episcopal Homes, 195 Wis.2d 485, 496, 536 N.W.2d 175, 182 (Ct. App.
1995); § 802.08(2), Stats. That methodology has been recited often and
we need not repeat it here except to observe that summary judgment is
appropriate when there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. See M & I First Nat'l Bank, 195 Wis.2d
at 496-97, 536 N.W.2d at 182.
Langendorf argues that a
dispute of fact exists as to whether an express oral modification of the terms
of her employment occurred when she was promoted. The complaint alleges that Langendorf was promised reinstatement
to her previous position in the event of poor job performance as a shop
supervisor. T.D.H.'s answer admits
"that there was discussion in which, under certain circumstances,
[Langendorf] could change positions but den[ies] the remaining portion" of
the allegation. Langendorf's affidavit
in opposition to summary judgment sets forth that on December 13, 1993,
T.D.H.'s president, Tom Hinkle, stated that if at any time in the future T.D.H.
was dissatisfied with her job performance, she would be notified in accordance
with the disciplinary policy and have the opportunity to return to a production
worker position in place of termination.
Hinkle's affidavit explains that Langendorf was hired as an at will
employee and states, "I have never said or signed anything which would in
any way change this understanding."
While at first blush it
would appear that there is a conflict about whether T.D.H. agreed to the
modified disciplinary policy, summary judgment is not precluded. The alleged factual dispute which makes
summary judgment inappropriate "must concern a fact that affects the
resolution of the controversy ...."
Clay v. Horton Mfg. Co., 172 Wis.2d 349, 353-54, 493
N.W.2d 379, 381 (Ct. App. 1992) (citations omitted).
The ultimate issue is
whether the disciplinary policy, whether modified or not, creates an employment
contract which altered Langendorf's “at will” status. This is a question of law.
Bantz v. Montgomery Estates, Inc., 163 Wis.2d 973, 978,
473 N.W.2d 506, 508 (Ct. App. 1991).
In light of Wisconsin's
policy favoring employment at will, the mere issuance of a progressive
disciplinary policy is insufficient to alter an at will employment
relationship. See Olson v.
3M Co., 188 Wis.2d 25, 54, 523 N.W.2d 578, 589 (Ct. App. 1994). The relationship is altered only if the
employee handbook or policy contains express provisions from which it
reasonably could be inferred that the parties intended to bind each other to a
different relationship. Id.
There is nothing in the
language of the disciplinary policy to suggest that it was intended to alter
the at will employment status. It does
not provide that it is the sole method of discharge or that discharge may
only be made for cause. See Bantz,
163 Wis.2d at 983, 473 N.W.2d at 510 (handbook did not alter at will status
where it only suggests, but does not mandate, a certain progression of
disciplinary steps and does not state that discharge would be only for just
cause). The policy states that it is
used to ensure fair and equal treatment of all employees. It is a guideline and not a contract. Id. Without some expression that the policy was mandatory, it would
be against public policy to construe it as creating a contract. Public policy seeks to encourage employers
to implement disciplinary guidelines and they will not do so if they risk the
loss of the power to discharge at will.
T.D.H. asserts that the
oral agreement on which Langendorf seeks to rely is unenforceable as contrary
to the statute of frauds which requires a writing for a contract that cannot be
performed within one year, § 241.02(1)(a), Stats. Although the
enforceability of the oral agreement to return Langendorf to her former
position is questionable, the oral agreement does not guarantee Langendorf a
job. Cf. Mursch v. Van
Dorn Co., 851 F.2d 990, 996-97 (7th Cir. 1988) (statement by employer's
vice president that "so long as you do your job you can be here until
you're a hundred" did not create a contract guaranteeing employment). Langendorf remained an at will employee in
any position. Even if T.D.H. returned
Langendorf to a production worker under the modified disciplinary policy, it
could have terminated her at will in that position. Therefore, summary judgment was appropriate.
We need not address
T.D.H.'s claim that the disciplinary policy is not relevant because it
dismissed Langendorf because of business reorganization and not for poor job
performance. Langendorf's claim that
the stated reason for termination was pretextual is not material in light of
the at will employment relationship.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.