COURT OF APPEALS DECISION DATED AND RELEASED June 13, 1995 |
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. 94-2178
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
CAROL PETERSON,
Plaintiff-Appellant,
v.
MARQUETTE UNIVERSITY
and
RONALD ORMAN,
Defendants-Respondents.
APPEAL from a judgment
of the circuit court for Milwaukee County:
MICHAEL J. BARRON, Judge. Affirmed.
Before Wedemeyer, P.J.,
Fine and Schudson, JJ.
WEDEMEYER, P.J. Carol Peterson appeals from a judgment
dismissing her complaint against Marquette University. Peterson claims that the trial court erred
in granting judgment notwithstanding the jury verdict. The jury verdict found that Peterson was
constructively discharged and that such discharge was motivated by age and
religious discriminatory practices.
Peterson also claims that the trial court erred: (1) in refusing to voluntarily recuse
itself; and (2) in its assessment of attorney fees. Because the trial court was not clearly wrong in granting
judgment notwithstanding the verdict, and because the trial court did not err
in refusing to recuse itself, we affirm.
Because of our resolution on these issues, it is unnecessary for us to
consider whether the trial court was clearly wrong in concluding there was no
credible evidence of age or religious discrimination and whether the trial
court erred in its attorney fees assessment.[1]
I. BACKGROUND
Peterson began her
employment with Marquette in July 1980 as an Assistant Dean of Residence
Life. During her employment, Peterson
was governed by a series of annual contracts, which commenced on September 1 of
each year. Prior to December 1991,
James Forrest held the position of the Dean of Residence Life and served as
Peterson's supervisor. Each year,
Forrest recommended that Peterson's contract be renewed. Also during this time period, Ronald Orman
held the position of Associate Dean of Residence Life. The associate dean was second in command to
the dean, but did not hold supervisory roles over the assistant deans. The last member of the Residence Life
central staff holding a dean position was Bill McCartney. His position was equivalent to
Peterson's—his title was also Assistant Dean of Residence Life.
During the fall of 1991,
Marquette was experiencing enrollment declines. As a result, certain budget cuts and restructuring of departments
were contemplated. In December 1991,
Father William Leahy, the Executive Vice-President of Marquette, informed Orman
that he was being promoted to the position of Dean of Residence Life, that
Forrest was retiring, and that the promotion would be effective July 1,
1992. Orman was informed that he was
given full responsibility for Residence Life staffing decisions for the 1992-93
school year. Although Orman would not
receive the official title until July 1, 1992, he was to assume the role
immediately for purposes of evaluating the current staff.
Based on negative
feedback from residence hall directors and his own personal observations, Orman
informed his supervisors that he would not recommend Peterson for renewal. His supervisors informed him that he would
need sufficient cause not to renew Peterson.
On March 3, 1992, Orman sent written “performance expectations” to
both assistant deans, Peterson and McCartney.
The expectations for each were similar, stating that Orman expected them
to: (1) display a commitment to professional development; (2) be professional
and positive in interactions with staff and students and parents; (3) maintain
standard working hours in the office; (4) monitor absences from the office
to conform with the University's policy on vacation, sickness and personal
time; and (5) carry out assigned duties in a timely and professional
manner. McCartney attempted to comply
with the expectations and was offered a nine-month provisional contract.
Peterson responded to
the expectations memo, questioning the need for each of the expectations and
asking for further clarification. Orman
provided a revised and more specific memo to Peterson on April 24. Orman also offered Peterson a provisional
contract, which would extend her employment until December 31, 1992. Orman also requested that Peterson meet with
him weekly or bi-weekly so that he could give her feedback on her
performance. On April 27, Peterson
submitted her resignation, effective May 31, 1992.
Peterson did not file a
grievance through Marquette's procedures, instead choosing to file a complaint
alleging that she had been constructively discharged on the basis of her age,
sex and religion in violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e, et seq., and the Age Discrimination Employment Act,
29 U.S.C. § 621, et seq.
Her allegations were based in part on a statement the new President of
Marquette, Father Albert DiUlio, made in 1990 indicating his intent to return
Marquette to the Jesuit Catholic tradition.
Peterson also alleges that a December 1990 questionnaire that asked
Marquette employees to indicate their religious affiliation supports her
contentions. She does not dispute that
the questionnaire was entirely voluntary and anonymous.
Once her case was
assigned to the Honorable Michael J. Barron's court, Peterson requested by
correspondence that Judge Barron voluntarily recuse himself from the case
because he was a graduate of Marquette University Law School. Judge Barron declined to voluntarily recuse
himself, explaining that he attended law school thirty-three years ago, this
case did not specifically involve the law school, and he believed he could be
impartial. No formal motion for recusal
or request for substitution was made.
The case was tried to a
jury, which found that Peterson had been constructively discharged and the
motivation for the discharge was her age and her religion. Peterson was forty years old at the time of
her resignation and a member of the Jewish faith. Marquette moved for a directed verdict or judgment
notwithstanding the verdict, which was granted by the trial court. Peterson now appeals.
II. DISCUSSION
Because this case
involves resignation rather than discharge, Peterson first needed to prove that
her resignation was in actuality a constructive discharge. See Chambers v. American Trans
Air, Inc., 17 F.3d 998, 1005 (7th Cir.), cert. denied, 115 S.
Ct. 512 (1994). The trial court
determined that Peterson did not satisfy her burden of proof on this issue and
that there was no evidence to support a finding of constructive discharge. Our decision holds that the trial court was
not clearly wrong in setting aside the jury's finding of constructive
discharge. As a result, we need not
address the allegations of discrimination in this case. Gross v. Hoffman, 227 Wis.
296, 300, 277 N.W. 663, 665 (1938) (only dispositive issues need be addressed).[2]
A. Constructive Discharge.
Peterson claims that her
working conditions were so intolerable that she was forced to quit. Marquette maintains that no such environment
was created. The trial court determined
that there was no evidence to support constructive discharge.
Standard of Review
In reviewing the trial court's
decision to grant judgment notwithstanding the verdict, we will not reverse
unless we are convinced that the trial court was clearly wrong. Helmbrecht v. St. Paul Ins. Co.,
122 Wis.2d 94, 110, 362 N.W.2d 118, 127 (1985); see also Olfe v.
Gordon, 93 Wis.2d 173, 185-86, 286 N.W.2d 573, 579 (1980). This standard is employed because “the trial
court has such superior advantages for judging ... the weight of the testimony
and its relevancy and effect.” Id.
We acknowledge that this
court departed from our supreme court's holdings in Helmbrecht
and Olfe, as to the appropriate standard of review, concluding
that the proper standard of review is whether there was “no credible evidence
to sustain the verdict” rather than whether the trial court was “clearly
wrong.” See Macherey v.
Home Ins. Co., 184 Wis.2d 1, 516 N.W.2d 434 (Ct. App. 1994). Macherey creates a
dilemma. That is, should we follow Macherey,
a court of appeals decision, or should we follow the longstanding precedent of
our supreme court in Helmbrecht and Olfe? We recognize that the court of appeals is
bound by its own decisions. Section
752.41(2), Stats.; see In
re Court of Appeals of Wisconsin, 82 Wis.2d 369, 371, 263 N.W.2d 149,
150 (1978). However, when a court of
appeals decision conflicts directly with supreme court decisions on an issue,
which is the “more binding” precedent?
The answer must be the supreme court's decisions. Accordingly, we examine the record to
determine whether the trial court was clearly wrong in concluding that Peterson's
resignation was not a constructive discharge.[3]
Application
“[T]o state a claim for
constructive discharge, a plaintiff needs to show that her working conditions
were so intolerable that a reasonable person would have been compelled to
resign.” Chambers, 17
F.3d at 1005. Further, employees must
put up with some injustices and disappointments in an employment setting and
not be unduly sensitive to conditions that arise. Phaup v. Pepsi-Cola General Bottlers, Inc., 761 F.
Supp. 555 (N.D. Ill. 1991). Although
the record may demonstrate “some injustices or disappointments,” it certainly
does not demonstrate “intolerable” working conditions.
Peterson testified that
she resigned because she felt she was being harassed, that the only reason
Orman offered her a probationary contract was to find fault with her, and she
felt she was constantly looking over her shoulder to see if she was being watched. She also stated that she resigned because
she could not work for a person (Orman) that she did not respect and could not
trust. Peterson's testimony is
insufficient to establish constructive discharge. Constructive discharge cannot be established on the basis of an
employee's dissatisfaction with her work assignments, or that she feels her
work performance has been unfairly criticized or that working conditions are
difficult or unpleasant. Stetson
v. NYNEX Serv. Co., 995 F.2d 355, 360 (2d Cir. 1993).
The budget cuts leading
to restructuring of the Residence Life department may have created a difficult
working environment. Peterson's receipt
of “work expectations” memos from a new supervisor may have been unpleasant. The offer of a four-month provisional
contract in place of the usual one-year renewal certainly was not pleasing to
Peterson. Nevertheless, there is no
substantiation in the record documenting “intolerable conditions”—conditions
that are physically impossible or so grossly demeaning that a reasonable person
in Peterson's shoes would be forced to quit instead of seeking redress while
continuing to work. We conclude,
therefore, that the record does not contain any evidence that Peterson's resignation
was a result of intolerable working conditions. Accordingly, we are not convinced that the trial court's
determination was clearly wrong.
B. Recusal.
We consider next whether
the trial court erred in refusing to voluntarily recuse itself from presiding
over this case. Peterson claims that
Judge Barron should have recused himself because he was a graduate of Marquette
University Law School.
Section 757.19(2),[4]
Stats., governs when a judge
should disqualify himself or herself.
Our standard of review is an objective one, although under subsection
(g), the trial judge makes a subjective determination as to impartiality, and
the objective review is limited to establishing whether the judge made a
determination requiring disqualification.
See State v. American TV & Appliance, 151
Wis.2d 175, 181-86, 443 N.W.2d 662, 664-66 (1989). Peterson contends that recusal of the trial judge in this case
was required under subsections (f) and (g).
We first address
subsection (f). Section 757.19(2)(f), Stats., requires a trial judge to
recuse himself or herself: “[w]hen a
judge has a significant financial or personal interest in the outcome of the
matter. Such interest does not occur
solely by the judge being a member of a political or taxing body that is a
party.” The question for our
consideration is whether the trial judge in this case had a “personal interest
in the outcome” because he graduated from Marquette University Law School. Judge Barron pointed out two additional
factors to counter Peterson's argument: (1) he graduated thirty-three years
ago; and (2) the law school was not a defendant. Our search of the record reveals that the only factor
suggesting that Judge Barron may have a personal interest in the outcome is the
fact that he graduated from the law school.
This factor standing alone is insufficient to require recusal under
§ 757.19(2)(f), especially in light of the length of time that has passed
since his graduation. See Goodman
v. Wisconsin Elec. Power Co., 248 Wis. 52, 58, 20 N.W.2d 553, 555
(1945) (personal interest must be substantial and not remote to require
disqualification). Accordingly, we
reject Peterson's argument based on § 757.19(2)(f).
Our consideration under
subsection (g) is limited: (1) to reviewing whether Judge Barron subjectively
believed he could be fair and impartial; and (2) to establishing whether the
judge made a determination requiring disqualification. American TV, 151 Wis.2d at
183, 443 N.W.2d at 666. Section
757.19(2)(g), Stats., requires a
trial judge to recuse himself or herself:
“[w]hen a judge determines that, for any reason, he or she cannot, or it
appears he or she cannot, act in an impartial manner.” “The basis for disqualification under sec.
757.19(2)(g), Stats., is a
subjective one. Accordingly, the
determination of the existence of a judge's actual or apparent inability to act
impartially in a case is for the judge to make.” American TV, 151 Wis.2d at 183, 443 N.W.2d at
665. We first consider whether the
trial judge subjectively believed he could be fair and impartial. Correspondence from Judge Barron to both
parties clearly established his subjective belief that his graduation from
Marquette University Law School thirty-three years ago would not color his
ability to be fair and impartial.
Further, Peterson has offered 9no evidence that demonstrates Judge
Barron subjectively believed that he could not be fair. We conclude that the trial judge satisfied
the subjective standard under § 757.19(2)(g).
Our final consideration
under § 757.19(2)(g), Stats., is
to establish whether the trial judge made a determination requiring
disqualification and failed to heed his own finding. Consideration of this point in light of the foregoing is
futile. The trial judge in this case
clearly made a determination that he was not required to disqualify
himself. Accordingly, we reject
Peterson's contention that the trial court erred in refusing to recuse itself.
By the Court.—Judgment
affirmed.
Recommended for
publication in the official reports.
No. 94-2178 (CD)
SCHUDSON, J. (concurring
in part; dissenting in part). The
majority has applied the wrong standard of review in concluding that “the trial
court was not clearly wrong in granting judgment notwithstanding the
verdict.” See majority slip op.
at 2. Further, in separating the issues
of age and religious discrimination from the issue of constructive discharge,
the majority has improperly limited the analysis and reached an unrealistic and
legally unsupportable conclusion.
In Macherey v.
Home Ins. Co., 184 Wis.2d 1, 516 N.W.2d 434 (Ct. App. 1994), we
attempted to carefully consider and answer a difficult question: in reviewing a trial court's decision to
change a jury's answer, direct a verdict, or grant judgment notwithstanding a
verdict, is our standard of review whether the trial court's decision was
“clearly wrong,” or whether there was “no credible evidence to sustain the
verdict”? Judge Wedemeyer and I
concluded that the “no credible evidence” standard applied and that when “more
than one reasonable inference may be drawn from the evidence at trial, this
court must accept the inference drawn by the jury.” Id. at 8, 516 N.W.2d at 436
(emphasis added); see also § 805.14(1), Stats. Judge Fine,
dissenting, concluded that the “clearly wrong” standard applied.[5] Although Judge Fine's dissenting position
did not prevail, the majority in this case has ignored Macherey's
holding and applied the very standard of review that Macherey
rejected. This the majority is not
permitted to do. See Ranft
v. Lyons, 163 Wis.2d 282, 299 n.7, 471 N.W.2d 254, 260 n.7 (Ct. App.
1991) (court of appeals bound by its own decision under doctrine of stare
decisis); see also
§ 752.41(2), Stats.,
(“Officially published opinions of the court of appeals shall have statewide
precedential effect.”).
Applying the correct
standard of review to this case, we should examine the record to determine
whether there is credible evidence to sustain the jury's verdicts. In doing so, we should be mindful that when
more than one reasonable inference may be drawn, we must accept the
inference drawn by the jury. Macherey
at 8, 516 N.W.2d at 436. The majority's
summary of the evidence, however, is incomplete, misleading, and in total
disregard of the inferences the jury was entitled to draw.
The majority ignores the
testimony of Father Leahy who, in describing the reasons he wanted Orman as
dean, added that “[i]t was a bonus that he was Catholic.” The majority also ignores the evidence that
Father Leahy advised James Forrest that he wanted a “younger” person in
Forrest's position. The trial court
decision granting judgment notwithstanding the verdict minimized the former
testimony as an “illtempered remark,” and similarly dismissed the latter by
saying, “Age was never mentioned at the trial except by Fr. Leahy on why he
wanted Orman as dean.” Then, apparently
referring to both comments, the trial court wrote, “a mere isolated or
ambiguous remark is not in itself sufficient to show discrimination on the part
of the employer.” Perhaps, but Peterson
offered more than these remarks.
Peterson introduced
evidence comparing the age and religious composition of her department before
and after the point of alleged discrimination.
Apparently it was undisputed that the Department of Residence Life came
to be comprised exclusively of employees who were practicing Catholics and,
with the exception of Orman, who were under thirty-two years of age. Peterson also introduced evidence that her
performance evaluations were pretextual, and that the short term contract
offered to her was “a required motion” to legitimize efforts to replace
her. Even the respondents concede on
appeal that “the jury apparently found that the reasons given by the
Defendants-Respondents for their failure to renew Peterson's contract were
pretextual.” Thus, the jury was
entitled to infer that the testimony that “[i]t was a bonus that he was a
Catholic,” and the testimony that Father Leahy wanted a “younger” person were
more than “mere isolated or ambiguous remark[s].” Contrary to the trial court's characterization, neither comment
was offered “in itself” to establish religious or age discrimination. How dubious for the trial court to
effectively dismiss this evidence out of hand.
How perplexing for the majority to not even mention any of this evidence
of religious and age discrimination.
The majority somehow
seems to believe that it can avoid the evidence and issues of age and religious
discrimination by resolving this case on the basis of constructive
discharge. The majority relegates
Peterson's claims to the realm of minor, everyday misfortunes: “employees must put up with some injustices
and disappointments in an employment setting and not be unduly sensitive to
conditions that arise.” Majority slip
op. at 8. Thus, the majority concludes,
the “injustices or disappointments” Peterson may have suffered “certainly do[ ]
not demonstrate ‘intolerable’ working conditions” that forced her resignation.
The majority's legal
separation of religious and age discrimination from constructive discharge is
legally unsupportable. Indeed, the
trial court's instructions recognized the inseparable nature of discrimination
and constructive discharge, properly blending the two. The instructions explained that Peterson
must prove, among other things, that the defendants “intentionally made [her]
working conditions so intolerable that a reasonable person would feel forced to
resign,” and that age and/or religion “were motivating factors” in the
defendants' conduct. Contrary to the
instruction, however, the majority jettisons consideration of the alleged
discrimination and, in so doing, avoids law and defies reality.
As the majority
concedes, constructive discharge occurs when working conditions are “so
intolerable that a reasonable person” is compelled to resign. Chambers v. American Trans Air, Inc.,
17 F.3d 998, 1005 (7th Cir.), cert. denied, 115 S. Ct. 512 (1994)
(emphasis added). Therefore, if, in
fact, a reasonable person is suffering age, or religious
discrimination at the hands of an employer, he or she certainly could reasonably
conclude that resignation is compelled.
In this case, the jury concluded that Peterson suffered both.
The jury returned verdicts
concluding that the defendants “intentionally [made Peterson's] working
conditions so intolerable that she was constructively discharged” and that
religion and age were “more likely than not, [ ] motivating factor[s] in
causing a constructive discharge.” The
majority fails to offer any law or logic to sever age and religious
discrimination from those factors that would lead a reasonable person to
feel compelled to resign. The majority
fails to offer any law or logic to relegate such factors to the realm of minor
“injustices or disappointments” beyond a jury's proper consideration.
In this case, I
certainly do not know whether Carol Peterson suffered age and religious
discrimination at the hands of Marquette University and Ronald Orman. I do know, however, that a jury had the
opportunity to evaluate evidence and make that determination. As the trial court decision acknowledged:
[T]he
verdicts are not perverse. This jury
was very discriminating in how it answered the verdict questions. This is shown by (1) finding no
discrimination in the Failure to Promote claim, (2) finding no gender
discrimination in the two claims upon which claimant prevailed,
(3) recognizing the duplication in the damage claims for back pay and
compensatory damages, and (4) awarding to the penny what was requested on
the back pay award.
This was a case in which
a citizen, after twelve years of employment, brought very serious claims
against an esteemed university and one of its deans. A jury trial lasting four days and producing numerous witnesses
and exhibits was thoroughly litigated.
Evaluating the post-verdict motions, the trial judge considered several
issues in a twenty-four page written decision.
On appeal, the parties effectively presented their arguments and
directed our attention to relevant portions of a lengthy record. How sadly ironic, therefore, after so much
effort from so many people in earnest pursuit of justice, that the majority has
rendered a decision that carries an incomplete and misleading factual summary,
an adoption of a dissenting position for the standard of review, and an
obviously hurried decision recommended for publication.
Not only is the majority
opinion wholly inappropriate as a published decision that would presume to
offer clear guidance to others, but it can only be a disappointment to the
parties in this case. The prevailing
parties must know that the obvious deficiencies of the majority opinion leave
this case ripe for further review, and Ms. Peterson must wonder why a jury's
evaluation of her claims would be so unjustly ignored.
Accordingly, I
respectfully dissent.
[1] See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663, 665 (1938) (only dispositive issues need be addressed).
[2] Without specification, the dissent intemperately charges that the majority omits certain facts. Dissent at 3. The majority has stated the facts that are relevant to the first issue, which is dispositive. If the dissent believes the majority has omitted facts pertinent to that issue, he should state those facts with specificity. He does not. Rather, he lards his dissent with facts that are relevant to the discrimination issue, not whether there was evidence sufficient to show a constructive discharge.
[3] As author of this opinion, I recognize that I was a part of the majority opinion in Macherey v. Home Ins. Co., 184 Wis.2d 1, 516 N.W.2d 434 (Ct. App. 1994). However, upon reconsidering the standard of review issue in the present case, I am compelled to adhere to the Wisconsin Supreme Court precedent on this issue.
(2) Any judge shall disqualify
himself or herself from any civil or criminal action or proceeding when one of
the following situations occurs:
(a) When
a judge is related to any party or counsel thereto or their spouses within the
3rd degree of kinship.
(b) When
a judge is a party or a material witness, except that a judge need not disqualify
himself or herself if the judge determines that any pleading purporting to make
him or her a party is false, sham or frivolous.
(c) When
a judge previously acted as counsel to any party in the same action or
proceeding.
(d) When
a judge prepared as counsel any legal instrument or paper whose validity or
construction is at issue.
(e) When
a judge of an appellate court previously handled the action or proceeding while
judge of an inferior court.
(f) When
a judge has a significant financial or personal interest in the outcome of the
matter. Such interest does not occur
solely by the judge being a member of a political or taxing body that is a
party.
(g) When a judge determines that, for any reason, he or she cannot, or it appears he or she cannot, act in an impartial manner.
[5] Judge Fine relied on Helmbrecht
v. St. Paul Ins. Co., 122 Wis.2d 94, 362 N.W.2d 118 (1985), in support
of the “clearly wrong” standard. Helmbrecht,
however, sends mixed messages. First,
citing § 805.14, Stats., Helmbrecht
reiterated the “no credible evidence” standard and further emphasized that the
“no credible evidence” standard “‘applies to both the trial court on a motion
after verdict and to this court on appeal.’”
Id. at 109-110, 362 N.W.2d at 127 (citations
omitted). Next, quoting Olfe v.
Gordon, 93 Wis.2d 173, 286 N.W.2d 573 (1980), Helmbrecht
invoked the “clearly wrong” standard but also quoted authorities talking in
terms of whether “there is or is not sufficient evidence upon a given question to
take the case to the jury.” Helmbrecht,
122 Wis.2d at 110, 362 N.W.2d at 127 (emphasis added; citations omitted). Moreover, Helmbrecht went on
to apply the “no credible evidence” standard in resolving several issues on
appeal but, in one instance, added that the trial court decision also
was “clearly wrong.” See id.
at 118, 362 N.W.2d at 131. Thus, Helmbrecht
contributed to the confusion on this issue.
In resolving this issue
in favor of the “no credible evidence” standard, Macherey
preserved the distinction between a trial court's determination of whether
there is “credible evidence” to submit to a jury (where, as Helmbrecht
perhaps implied, we defer to the trial court's “superior advantages for judging
of the weight of the testimony and its relevancy and effect,” Helmbrecht,
122 Wis.2d at 110, 362 N.W.2d at 127 (citations and inner quotations omitted)),
and a trial court's decision on whether to overrule a jury's decision
(where we, like the trial court, must defer to the jury's evaluation of
credibility of witnesses and weight of evidence). Our conclusion in Macherey is consistent with that
of the federal appellate courts, which show deference to a jury's evaluation of
evidence:
A
court of appeals reviews de novo a district court's grant of judgment
notwithstanding the verdict and applies the same standard as the district
court. This standard is whether
there is substantial evidence to support the verdict; i.e., whether the
evidence presented, combined with all reasonable inferences that may be drawn
from it, is sufficient to support the verdict when viewed in the light most
favorable to the party winning the verdict.
Mathewson v. National Automatic Tool Co. Inc., 807 F.2d 87, 90 (7th Cir. 1986)
(emphasis added).
Now, strangely enough, Judge Wedemeyer has done an abrupt about-face in reliance on what he labels “the longstanding precedent of our supreme court in Helmbrecht and Olfe.” Majority slip op. at 7. One year ago, however, he and I concluded that those very cases and others were unclear on this issue, thus generating the difficult question Macherey had to answer. The issue was a close one; Helmbrecht and Olfe did not resolve it, but Macherey did.