Tortious Interference with At-will Employment
Wisconsin law affords at-will employees a cause of
action for tortious interference with contract if their termination was
triggered by the improper motives of coemployees, officers or directors,
or outside third parties.
by Mark R. Hinkston
erformance-based firings or financially motivated layoffs
are facts of corporate life. While the majority of at-will employee
terminations are legitimate, sometimes supervisors or colleagues induce
employee terminations (or thwart promotions) out of malice with no
corporate benefit. When this happens, some employees have sought relief
via a claim for tortious interference with contract - a claim
long-recognized in Wisconsin, generally to salve the tortious usurpation
of a valuable deal.
The most recent high-profile example of tortious interference claims
in the at-will employment context is Mackenzie v. Miller Brewing
Co.,1 more commonly known as the "Seinfeld case."
Mackenzie, after his termination, asserted tortious
interference claims against his supervisor for allegedly defeating a
promotion, and a female coemployee for allegedly causing his termination
after he told her more than she wanted to hear about a certain Seinfeld
television show episode. Mackenzie also asserted intentional
misrepresentation claims against Miller Brewing and his supervisor,
alleging that Miller misrepresented that his position would not be
affected by a company reorganization.
The Wisconsin Court of Appeals rejected Mackenzie's tortious
interference and misrepresentation claims. Only the misrepresentation
claims were the subject of Mackenzie's appeal to the Wisconsin Supreme
Court. The supreme court held that an at-will employee may not sue for
misrepresentation when an employer fails to disclose facts relating to
the employee's status. Because the supreme court did not address
Mackenzie's tortious interference claims, any subsequent discussion
herein of the Mackenzie case refers to the court of appeals
decision.
Mackenzie highlights an employee plaintiff's heavy burden in
pursuing a tortious interference claim against an employer.
Corporate-actor defendants are insulated by certain "conditional
privileges." Also, success hinges on evidence that a termination or
demotion was the result of an "improper motive" - generally considered
to be akin to ill will or a malicious act intended solely for
self-benefit, to the exclusion of corporate interests.
This article addresses Wisconsin courts' treatment of tortious
interference claims in the at-will employment context, with specific
focus on: 1) the tort's genesis and development; 2) the categories of
targeted defendants and the "conditional privileges" they assert; and 3)
the concept of "impropriety" and the burden of proving it.
Tort Meets At-will Employment
Courts are reluctant to second-guess employment decisions2 and disfavor attempts to "shoehorn" tort causes of
action into contractual relationships.3 Thus, tortious
interference with at-will employment claims occasionally are greeted
with initial suspicion.
First, some take the "employment-at-will doctrine" and the
unavailability of a breach of contract/wrongful discharge claim to mean
that the at-will employment relationship is not "contractual" and, thus,
not entitled to remedy via a tortious interference with contract claim.
It indeed is true that at-will employees can be terminated for "good
cause, no cause, or morally wrong cause."4 Yet the
basis for at-will employment is a contract - albeit one "at-will" - and
"until it is terminated the [at-will employment] contract is a
subsisting relation, of value to the plaintiff, and presumably to
continue in effect."5
Second, suspicion also arises because the interference tort sometimes
is viewed as a "back-up remedy" against breaches of contract6 - an attempt to get at an employer's "deeper pockets."
Yet, the employer is not a viable party in a tortious interference with
at-will employment claim. The employer cannot be liable for interference
because liability is not imposed for interference with one's own
contract, in this case the at-will contract between employer and
employee. Thus, the employer cannot be targeted and will not possess
vicarious liability.7 However, corporate officers and
directors may be targeted for personal liability.
An employee's tortious interference claim in a civil action also may
be suspected as a means to skirt the Wisconsin Worker's Compensation
Act. Yet, such a claim is not preempted by the Wisconsin Worker's
Compensation Act to the extent that the plaintiff seeks "economic loss"
rather than damages for "mental or physical harm."8
Thus, an employee has potential to recover in a civil action pecuniary
loss of benefits, causally related consequential losses, and punitive
damages.9
Metamorphosis of Tortious Interference
Wisconsin has long recognized the tortious
interference with contract cause of action in many contexts. The tort
has been applied to protect against intermeddling with a variety of
contractual relations, including real estate deals, listing agreements,
lease rights, contracts to perform services, "exclusive rights"
agreements, and business purchases.10
Wisconsin has adopted the Restatement (Second) of Torts formulation
and analysis for tortious interference claims.11
Section 766 provides that: "One who intentionally and improperly
interferes with the performance of a contract (except a contract to
marry) between another and a third person by inducing or otherwise
causing the third person not to perform the contract, is subject to
liability to the other for the pecuniary loss resulting to the other
from the failure of the third person to perform the contract."12 Tortious interference claims in the at-will employment
context fall within this paradigm, the claim being that the intermeddler
has improperly induced the third person (the employer) to terminate the
at-will employment contract.
Wisconsin recognizes two additional species of tortious interference:
1) interference with a person's own performance under a contract, which
includes making the performance more expensive or burdensome;13 and 2) interference with another's prospective
contract.14 Tortious interference with prospective
contract is asserted sometimes when an at-will employee loses a
promotion or a new job.
Mendelson and its Progeny: Improper
Motive
In 1960, in Mendelson v. Blatz Brewing Co.,15 the Wisconsin Supreme Court addressed whether a
discharged at-will employee could maintain an action against others
within the company for tortious interference arising out of the
employee's termination. Mendelson, the brewery's minority shareholder,
alleged that the majority shareholders and officers conspired to remove
him as general manager (so one of the defendants' sons could have the
job) and force him to sell his stock. The supreme court held that
Mendelson stated a claim, noting that "Wisconsin has aligned itself with
the majority in holding that a cause of action is maintainable for
unlawful interference with an employment contract terminable at will."16
The court recognized a "privilege" for corporate officers or
directors in terminating employees, but noted that the privilege is
destroyed if the object "is to put pressure upon the plaintiff and
coerce him into complying with the defendant's wishes in some collateral
matter."17 The court held that in order to state a
claim against a corporate officer personally, it is not necessary to
allege malice, only an improper motive.18
The court in subsequent cases adhered to the corporate
officer/director conditional privilege, noting that "[i]f directors are
acting in good faith for the protection of the interests of their
corporation and in the course of their official duty, they should be
protected" but that the privilege "will be destroyed by a wrongful
motive."19 "Wrongful motive" in the corporate director
context has been interpreted to mean a situation where directors exceed
the scope of their official duties and make bad faith "decisions which
are antithetic to the interests of the company" - in effect breaching
their fiduciary duties to the corporation.20
Extension of Conditional Privileges
The supreme court's recognition of a privilege for officers and
directors spawned conditional (or qualified) privileges for other groups
targeted by discharged at-will employees, including coemployees, third
parties, and attorneys giving advice.
Coemployee Privilege. Discharged employees have sued
coworkers for tortious interference. As noted, the most famous recent
case is Mackenzie v. Miller Brewing Co.21
Mackenzie, an upper-level manager, sued his employer (Miller Brewing),
his supervisor, and a coemployee arising out of a lost promotion and
subsequent termination.22 The coemployee reported to
Miller that Mackenzie had inappropriately commented on a Seinfeld
television episode that, by innuendo, referred to female sexual anatomy.
Miller terminated Mackenzie for exercising "poor management judgment."
Mackenzie asserted a tortious interference with contract claim against
the coemployee for "fraudulently representing" that she felt harassed by
the conversation. The jury found tortious interference and awarded $0.00
in compensatory damages and $1.5 million in punitive damages. The trial
court set aside the award on the ground that without compensatory
damages, there could be no punitive damages. The court of appeals upheld
the trial court, noting that the coemployee was protected by the
"conditional privilege" available to those reporting workplace
problems.23
The court harkened back to the coemployee privilege it had first
recognized in Wolf v. F & M Bank,24 in
which a discharged bank president blamed his termination on two female
coemployees who accused him of sexual harassment. The court found that
Mackenzie had not mustered evidence of "ill will" or "improper" motive,
which according to the court in Wolf was the sine qua non to
overcome the coemployee privilege.25 Recognizing
"society's interest in encouraging complainants to report sexual
harassment," the court refused to carve out an exception to the general
rule of preclusion of punitive damages in the absence of compensatory
damages.26
Third Parties: Privileges to Assert Complaints and Truthful
Information. Discharged employees also have asserted tortious
interference claims against third parties to blame them for their
termination. The right to be free from unlawful third-party
intermeddling from those outside the workplace was recognized by the
Wisconsin Supreme Court long ago in Johnson v. Aetna Life Insurance
Co.27 In Johnson, an employee injured on the job
claimed that his employer's insurer caused his termination after he
refused to settle his injury claim on the insurer's terms. The court
recognized the plaintiff's cause of action by stating: "[T]he plaintiff
had the right to dispose of his labor wherever he could to the best of
his advantage. This is a legal right entitled to legal protection....
and, if anyone assumed to meddle in his affairs, he did so at his
peril."28
Courts to this day continue to protect at-will employment from
outside threats. However, as with officers and coemployees, third
parties receive qualified insulation. For example, in Augustine v.
Anti-Defamation League of B'nai B'rith,29 the
supreme court held that a radio listener who complained about how a
radio announcer handled comments made during a radio program was
protected because his complaints were made "in the exercise of a
privilege to assert complaints" emanating from the right of free speech
guaranteed by the U.S. Constitution.
In Liebe v. City Finance Co.,30 the court
of appeals addressed a tortious interference claim brought by a finance
company employee who was discharged when his employer found out that he
had disseminated a flier criticizing finance company loans. The employee
sued a finance company that he alleged was responsible for alerting his
employer of the flier. The court held that the defendant was privileged
because the flier merely disseminated truthful information. The court
adopted Restatement (Second) of Torts section 772 (1979), which provides
that the transmission of truthful information is privileged and
proper.31
Attorneys: "Honest Advice" Privilege. Because
attorneys often are asked to advise corporate clients on termination
decisions, they sometimes are targeted by terminated employees. As with
the other actors, there is a line that attorneys may not cross. Although
attorneys generally are not liable to third parties for acts committed
within the scope of the attorney-client relationship, this immunity is
qualified and does not insulate the attorney who is guilty of fraud or a
malicious or tortious act.32 Thus, although attorneys
who give truthful advice within the scope of their representation are
insulated, based on the "honest advice" privilege of Restatement
(Second) of Torts section 772,33 an attorney who is
complicit with his client in terminating an employee via improper
motives invites liability.
Other Conditional or Qualified Privileges. Wisconsin
courts recognize privileges in several other contexts to thwart
terminated employees' tortious interference claims. For example: 1)
elected officials have a privilege, acting in their public capacity, to
terminate political appointees,34 2) doctors operating
a hospital have a "conditional privilege" when a termination is
motivated "to preserve the hospital's interests" in providing medical
care,35 3) doctors who decide whether to extend
medical or surgical privileges to a fellow doctor are insulated by
Wisconsin's peer review statute (Wis. Stat. section 146.37),36 and 4) those sharing a common interest or common
enterprise have a privilege to share employment information.37
"Improper Motive": When Self-benefit Vitiates Corporate
Interests
No clear-cut legal definition for "improper" or "wrongful" motive in
the employment context exists; however, courts generally have found that
where one promotes a "private agenda" for self-benefit, at odds with the
interests of the corporation, that suffices as "improper."38 While malice is not necessary to render a motive
improper,39 when present, its existence almost always
will be conclusive proof of an improper motive (assuming that malice is
the sole or predominant motive).40
Examples of improper motives include inducing a discharge: to coerce
the plaintiff to compel payment of a debt; to prevent the employee from
bringing suit or reporting a workplace regulation violation; to force
compromise of a claim; or to extort money.41 It also
is "improper" for one to induce termination by transmitting false
information,42 such as a coemployee telling the
employer that an employee has committed a crime or slandered the
employer when they, in fact, have not done so.
If an officer or director acts to further the corporation's
interests, there is no collateral or improper motive.43 Thus, improper motives do not exist where the
employee's performance is deficient,44 when a business
suffers financial losses under the employee's watch,45
or when the employee's actions create a conflict of interest.46
Difficulty creeps in when "mixed motives" are alleged, such as where
a termination will benefit the corporation but also bring an officer or
director personal financial gain.47 However, courts
have held that even if a termination is motivated by personal "greed,"
it is not "improper" or "collateral" if it benefits the corporation.48 Courts generally give deference to corporate officers
in view of the "business judgment rule" and will consider the "rules of
the game" for each particular business context.49
Subjective Privilege: The "Impropriety" Factors of Section
767
In contexts where there is no applicable conditional privilege, the
trier of fact will apply factors set forth in Restatement (Second) of
Torts section 767 to determine the "impropriety" of a defendant's
actions.50 The factors include the actor's conduct and
motive, the various interests involved, the proximity of the actor's
conduct to the interference, and the relations between the parties.51 The Comments to Restatement (Second) of Torts section
767 provide that "[i]t is in the application of [section 767] that the
most frequent and difficult problems of the tort of interference with a
contract or prospective contractual relation arise."52
In Mackenzie v. Miller Brewing Co.,53 in
addition to targeting his coemployee over the Seinfeld conversation, the
plaintiff also asserted a tortious interference claim against his
supervisor for opposing a promotion. The jury awarded $100,000 on the
claim. The court of appeals reversed the judgment, applying the section
767 factors to determine that the acts of Mackenzie's supervisor were
privileged (apparently since Wisconsin courts had not previously
expressly recognized a "supervisor's privilege").54
After weighing the competing interests, the court noted that the
supervisor "was in a legitimate position to comment on Mackenzie's
managerial abilities"55 and that "[c]ourts have been
reluctant to recognize an at-will employee's interest in a promotion and
have protected a supervisor's freedom to comment on a subordinate's
qualifications for advancement."56 Although the court
did not expressly create or recognize a "supervisor's privilege" in
rejecting Mackenzie's tortious interference claim against the
supervisor, its opinion strongly implies that one exists.
From Privilege to Propriety: Confusion Creeps In
Mendelson and its "conditional
privilege" progeny seem to clearly place the onus on the plaintiff to
prove an "improper motive" in order to impose liability on the corporate
or third-party actors otherwise insulated by privileges. However,
confusion haunts the analysis of those situations where there has been
no recognized conditional privilege (thereby triggering application of
the section 767 factors) because: 1) the applicable jury instruction
(Wis. JI-Civil 2780) does not jibe with relevant case law; and 2) there
is a lack of clarity as to which party has the burden of proving that
the defendant's acts are "improper."
Jury Instruction Misalignment. The Restatement of
Torts definition of tortious interference initially imposed liability on
"one who, without a privilege to do so, induces or otherwise purposely
causes a third person not to" perform a contract with another.57 The Restatement (Second) of Torts changed the focus to
whether the actions are "improper," imposing liability on "[o]ne who
intentionally and improperly interferes with the performance of a
contract."58 Thus, "privilege" was replaced by
"propriety."
Wisconsin Civil Jury Instruction 2780 provides the roadmap for
pursuing tortious interference claims. It places the burden on the
plaintiff to prove intentional interference, causation, and damages. The
instruction provides that the defendant has the burden of proving that
his or her actions were "justified" or "privileged," and the suggested
verdict question asks whether the defendant's interference was
"justified" as opposed to whether it was "improper." Thus, despite the
Restatement switch from "privilege" to "propriety" and the fact that a
prima facie case for tortious interference requires the interference to
be "intentional and improper," Wis. JI-Civil 2780 asks the jury to
determine whether the defendant's acts were "justified" or "privileged."
This divergence between the instruction language (privilege) and the
Restatement reformulation (propriety) fosters confusion.
Burden of Proof Quandary. The Wisconsin Civil Jury
Instructions Committee has noted that "[n]o Wisconsin appellate court
has determined whether the plaintiff must show 'improper' interference
or if the defendant must prove that his or her interference was
justified. Nor does the Restatement delineate on whom the burden
lies."59 The committee concurred with two Wisconsin
federal court decisions, Chrysler Corp. v. Lakeshore Commercial
Finance Corp.60 and Federal Pants Inc. v.
Stocking,61 to surmise that the "plaintiff
establishes a prima facie case by showing an intentional interference
with his or her contract by defendant, and then the latter must prove
justification for his or her acts."62
In Chrysler, the U.S. District Court for the Eastern
District of Wisconsin resorted to Prosser's perception (in 1964) of a
general agreement that "the burden of proving that it is 'justified'
rests upon the defendant."63 In Federal
Pants, the Seventh Circuit Court of Appeals cited to the burden of
proof pronouncement in Chrysler. However, just six years later
(in 1991), it noted that under Wisconsin law, "the question of which
party bears the burden of proving that the defendant's conduct is
improper is an unsettled issue of law."64 There has
been no express Wisconsin appellate court guidance on the issue since
that time.
The instructions committee and courts need to reassess and clarify
the issue in view of the shift from privilege to propriety. Perhaps the
time has come for an express declaration that the burden of pleading and
proving that the defendant's actions are "improper" is on the plaintiff.
Several reasons mandate the change. First, placing the burden on the
defendant gives the wrong impression that the plaintiff need only show
intentional interference to impose liability. With all due respect to
the Civil Jury Instructions Committee, under present Wisconsin law a
plaintiff does not establish a prima facie case by showing merely an
intentional interference with his or her contract. Interference alone
does not establish the tort. The interference also must be "improper."65 Placing the burden on the plaintiff also would create
consistency with Mendelson, where the supreme court took note
of case law stating that "[t]he plaintiff must establish that instead of
acting within the privilege, the defendant acted outside of it, that is
to say, from an improper motive."66
Placing the burden on the defendant to prove that his or her acts
were "proper" has been criticized by some commentators because it
creates an inherent presumption that the defendant is liable.67 Additionally, Prosser (who the Chrysler court relied
upon to intimate that the burden was on defendant) noted 20 years later
- after the issuance of the Restatement (Second) of Torts - that the new
Restatement (Second) formula "might be read, as some of the cases imply,
to put the burden on the plaintiff in the first instance to show
impropriety, and it is no doubt an improvement when so read."68
The apparent trend in other jurisdictions is to place the burden on
the plaintiff to prove impropriety.69 Although
Wisconsin courts have not expressly imposed the burden of proving
impropriety on the plaintiff, the Wisconsin Court of Appeals appears to
have tacitly adopted such an approach in Mackenzie.70
In reversing the $100,000 judgment against Mackenzie's supervisor, the
court concluded that "Mackenzie failed to provide any evidence of
improper conduct that would constitute tortious interference with his
prospective contract."71
As discussed above, in cases where no conditional privilege exists,
the burden should be on the plaintiff, using the Restatement section 767
factors, to show that the defendant's interference was "improper." In
the conditional privilege cases, the message is simple: if the plaintiff
cannot prove "improper motive," the plaintiff will lose.
Former Employer Immunity: References to Potential
Employers
Terminated employees commonly request that their former employer
provide a reference to potential future employers. Wis. Stat. section
895.487 affords the employer providing the reference immunity from "all
civil liability that may result from providing that reference" unless
the employee can prove by clear and convincing evidence that: 1) the
employer knowingly provided false information in the reference, or 2)
the employer made the reference maliciously or in violation of Wis.
Stat. section 111.322 (prohibiting employment discrimination).
Those who suspect that their former employer has wrongfully thwarted
their attempts to gain new employment face the practical obstacle of
discovering the exact nature and substance of the former employer's
communicated information. Potential employers may be reluctant to
provide specific details. Obviously, "you do not possess the
qualifications we seek" is more diplomatic than "your former employer
said you are a dishonest, unreliable thief." Yet, if the employee is
able to discover specific information that rebuts the immunity
presumption of section 895.487, the employer faces exposure to a claim
for tortious interference with prospective contract.
Conclusion
|
 Mark R. Hinkston, Creighton 1988 cum laude, practices
business litigation with Knuteson, Powers & Wheeler S.C., Racine. He
is admitted to practice in Wisconsin, Missouri, Kansas, and Colorado.
You can reach him at mhinkston@kpwlaw.com. |
|
In view of the freedom and flexibility
afforded by at-will employment, courts are "reluctant to interpose the
judicial branch between employers and employees."72 A
tortious interference claim should not be brought merely to circumvent
the general unavailability of a wrongful discharge claim. Discharged
at-will employees should resort to a tortious interference claim only
when their termination actually was triggered by "improper motive" in
conditional privilege cases or "impropriety" in the others. They should
be ready and able to prove impropriety, despite the uncertainty over the
burden of proof, because even if a conditional privilege applies,
success depends upon a showing of improper motive.
The cases discussed here highlight the infrequency of success.
However, that infrequency and the judicial reluctance "to interpose"
should not lull corporate decision-makers, reporting coemployees, or
whistle-blowing third parties into a false sense of security. The
"conditional privileges" afforded to corporate actor targets are not
licenses to act with impunity.73 The penalty can be
great when any of these accused intermeddlers (whether in or out of the
company) let personal motives or vendettas influence decisions relating
to at-will employees.
Endnotes
1 Mackenzie v. Miller
Brewing Co., 2000 WI App 48, 234 Wis. 2d 1, 608 N.W.2d 331,
aff'd, 2001 WI 23, 241 Wis. 2d 700, 623 N.W.2d 739.
2 See Strozinsky v.
District of Brown Deer, 2000 WI 97, 93, 237 Wis. 2d 19, 614 N.W.2d
443 (noting that the Wisconsin Supreme Court is reluctant to "second
guess employment or business decisions, even when those decisions appear
ill-advised or unfortunate").
3 See Mackenzie,
2001 WI 23 at 26 (noting Mackenzie "seeks to shoehorn a tort cause of
action into his at-will contractual relationship with Miller").
4 Id., 2001 WI 23 at
29.
5 Mendelson v. Blatz
Brewing Co., 9 Wis. 2d 487, 491, 101 N.W.2d 805, 807 (1960).
See also Kumpf v. Steinhaus, 779 F.2d 1323, 1324 (7th Cir.
1985) (noting the plaintiff "was an employee at will, but even at-will
employment is contractual and therefore potentially the basis of a tort
action").
6 See Frandsen v.
Jensen-Sundquist Agency Inc., 802 F.2d 941, 947 (7th Cir.
1986).
7 See Porcelli v. Joseph
Schlitz Brewing Co., 397 F. Supp. 889, 892 (E.D. Wis. 1975), aff'd,
530 F.2d 980 (7th Cir. 1976) (stating "no claim of tortious interference
with economic relations can be made against Schlitz, since a defendant's
breach of his own contract with the plaintiff is not actionable").
8 Wolf v. F & M
Banks, 193 Wis. 2d 439, 457, 534 N.W.2d 877, 884 (Ct. App. 1995).
Although emotional distress reasonably expected to result from the
interference is normally recoverable on a tortious interference claim,
the Wisconsin Court of Appeals has left the door open to the possibility
that "it may be inappropriate to award [emotional distress damages] in a
tortious interference with contract claim against a coemployee" (because
of possible Worker's Compensation Act preemption). Id.
9 Restatement (Second) of
Torts § 774A (1979).
10 In Wisconsin, because a
contract or prospective contract is essential, there is no remedy for
interference with mere "business relations." See Shank v. William R.
Hague Inc., 16 F. Supp. 2d 1038, 1044 (E.D. Wis. 1998),
aff'd, 192 F.3d 675 (7th Cir. 1999).
11 Pure Milk Prod.
Coop. v. Nat'l Farmers Org., 90 Wis. 2d 781, 796 n. 10, 280 N.W.2d
691, 698 n. 10 (1979); Charolais Breeding Ranches Ltd. v. FPC Sec.
Corp., 90 Wis. 2d 97, 105-06, 279 N.W.2d 493, 497 (Ct. App.
1979).
12 Restatement (Second) of
Torts § 766 (1979).
13 Restatement (Second) of
Torts § 766A (1979). See Wisconsin Power & Light Co. v.
Gerke, 20 Wis. 2d 181, 121 N.W.2d 912 (1963); Magnum Radio Inc.
v. Brieske, 217 Wis. 2d 130, 139-40, 571 N.W.2d 377, 380 (Ct. App.
1998).
14 Restatement (Second) of
Torts § 766B (1979). See Cudd v. Crownhart, 122 Wis. 2d
656, 658-59, 364 N.W.2d 158, 160 (Ct. App. 1985).
15 9 Wis. 2d 487, 101
N.W.2d 805 (1960).
16 Id. at 491, 101
N.W.2d at 807.
17 Id. at 492-93,
101 N.W.2d at 808.
18 Id. at 493, 101
N.W.2d at 808.
19 Lorenz v.
Dreske, 62 Wis. 2d 273, 287, 214 N.W.2d 753, 760 (1974).
20 Brunswick Corp. v.
E.A. Doyle Mfg. Co., 770 F. Supp. 1351, 1366 (E.D. Wis. 1991).
21 Mackenzie, 2000
WI App 48, 234 Wis. 2d 1, 608 N.W.2d 331, aff'd, 2001 WI 23, 241 Wis. 2d
700, 623 N.W.2d 739.
22 Mackenzie asserted the
following claims: 1) intentional misrepresentation against Miller and
his supervisor; 2) tortious interference with contract against his
supervisor (see notes 53-56, infra); and 3) tortious interference with
contract against his coemployee.
23 Mackenzie appealed to
the Wisconsin Supreme Court, but his tortious interference claims were
not the subject of the appeal. 2001 WI 23 at 29. The supreme court
addressed only the misrepresentation claims, holding "that there is not
a cause of action in Wisconsin for intentional misrepresentation to
induce continued employment." 2001 WI 23 at 30.
24 Wolf v. F&M
Bank, 193 Wis. 2d 439, 534 N.W.2d 877 (Ct. App. 1995).
25 Mackenzie, 2000
WI App 48 at 95.
26 Id. at 96. Some
courts have refused to allow coemployee tortious interference claims
arising out of personnel decisions under any circumstances, even those
involving the malicious exchange of information. See, e.g., Sheppard v.
Freeman, 79 Cal. Rptr. 2d 13, 17 (Cal. Ct. App. 1998) (holding that "an
employee or former employee cannot sue individual employees based on
their conduct, including acts or words, relating to personnel actions"
because the interest in allowing free speech relative to personnel
decisions "without the threat of debilitating litigation outweighs the
risk that a few employees will act maliciously and go undetected by
their employers").
27 Johnson v. Aetna
Life Ins. Co., 158 Wis. 56, 147 N.W.2d 32 (1914).
28 Id. at 60, 147
N.W. at 33.
29 Augustine v.
Anti-Defamation League of B'nai B'rith, 75 Wis. 2d 207, 249 N.W.2d
547 (1977).
30 Liebe v. City
Finance Co., 98 Wis. 2d 10, 295 N.W.2d 16 (Ct. App. 1980).
31 Id. The court
noted that "the mere statement of existing facts, or assembling of
information in such a way that the party persuaded recognizes it as a
reason for breaking the contract, is not enough [to impose tortious
interference liability], so long as the defendant creates no added
reason and exerts no other influence or pressure by his conduct."
Id.
32 Goerke v.
Vojvodich, 67 Wis. 2d 102, 105, 226 N.W.2d 211, 213 (1983).
33 Restatement (Second) of
Torts § 772 cmt. c (1979). See also Joseph P. Caulfield &
Assocs. v. Litho Prods. Inc., 155 F.2d 883 (7th Cir. 1998).
34 Farr v. Gruber,
950 F.2d 399 (7th Cir. 1991).
35 Hale v. Stoughton
Hosp. Ass'n, 126 Wis. 2d 267, 376 N.W.2d 89 (1985).
36 See Qasem v.
Kozarek, 716 F.2d 1172 (7th Cir. 1983); Dovin v. Beaver Dam
Emergency Medicine S.C., 43 F. Supp. 2d 1027 (E.D. Wis. 1999).
37 See Dovin, 43
F. Supp. 2d at 1034; Olson v. 3M Co., 188 Wis. 2d 25, 523 N.W.2d 578
(Ct. App. 1994).
38 See Wilcox v.
Niagara of Wis. Paper Corp., 965 F.2d 355, 365 (7th Cir. 1992).
39 See Foseid v. State
Bank of Cross Plains, 197 Wis. 2d 772, 789 n. 10, 541 N.W.2d 203,
210 n. 10 (Ct. App. 1995).
40 Restatement (Second) of
Torts § 766 comment r (1979).
41 W. Page Keeton,
Prosser and Keeton on The Law of Torts §129, at 988 (5th
ed. 1984).
42 See Liebe v. City
Finance Co., 98 Wis. 2d 10, 295 N.W.2d 16 (Ct. App. 1980).
43 Porcelli v. Joseph
Schlitz Brewing Co., 397 F. Supp. 889, 893 (E.D. Wis. 1975), aff'd,
530 F.2d 980 (7th Cir. 1976).
44 Id.
45 Kaufman v.
Grant-Crawford Co-op Oil Co., Dist. IV Ct. App., No. 81-539 (Jan.
26, 1982) (unpublished decision).
46 See Harman v. La
Crosse Tribune, 117 Wis. 2d 448, 344 N.W.2d 536 (1984).
47 See Kumpf,
supra note 5, 779 F.2d at 1325.
48 Id.
49 Id. (stating "[t]he
'rules of the game' are important in deciding what sorts of acts are
privileged.... The rule of this game is that [plaintiff] was an employee
at will and had no right to stay on if his board wanted him gone").
50 See Wis.
JI-Civil 2780. See also Liebe, supra note 42, 98 Wis. 2d at 5,
295 N.W.2d at 19 (Ct. App. 1980). See also Sparks v. Waukesha
Bearings Corp., Dist. II Ct. App., No. 87-1127 (May 4, 1988)
(unpublished decision) (noting in Liebe, "we held that the specific
privileges set forth at secs. 768-773 control, where applicable, over
the factors listed in sec. 767").
51 Restatement (Second) of
Torts § 767 (1979).
52 Restatement (Second) of
Torts § 767 comment a (1979).
53 2000 WI App 48, 234 Wis. 2d
1, 608 N.W.2d 331.
54 2000 WI App 48 at
65-74.
55 Id. at 69.
56 Id. at 71.
57 Restatement of Torts
§ 766 (1939).
58 Restatement (Second) of
Torts § 766 (1979).
59 Wisconsin Civil Jury
Instructions Committee comment to Wis. JI-Civil 2780.
60 Chrysler Corp. v.
Lakeshore Commercial Fin. Corp., 389 F. Supp. 1216 (E.D. Wis.
1975).
61 Federal Pants Inc.
v. Stocking, 762 F.2d 561 (7th Cir. 1985).
62 See supra note
59.
63 Chrysler, 389
F. Supp. at 1221.
64 Railway Express
Agency Inc. v. Super Scale Models Ltd., 934 F.2d 135, 140 (7th Cir.
1991).
65 See Liebe,
supra note 42, 98 Wis. 2d at 15, 295 N.W.2d at 19 (Ct. App. 1980).
66 Mendelson, 9
Wis. 2d at 492, 101 N.W.2d at 808.
67 See, e.g., Dan B. Dobbs,
Tortious Interference with Contractual Relationships, 34 Ark.
L. Rev. 335, 346 (1980); Elisa Masterson White, Comment, Arkansas
Tortious Interference Law: A Proposal for Change, 19 U. Ark. Little Rock
L.J. 1:81, 81 (1997).
68 W. Page Keeton,
Prosser and Keeton on The Law of Torts §129, at 983-84
(5th ed. 1984).
69 See Della Penna v.
Toyota Motor Sales, U.S.A., Inc., 902 P.2d 740, 746-47 (Cal. 1995)
(stating that "[o]ver the past decade or so, close to a majority of the
high courts of American jurisdictions have imported into the economic
relations tort ... a rule that requires the plaintiff in such a suit to
plead and prove the alleged interference was either 'wrongful,'
'improper,' 'illegal,' 'independently tortious' or some other variant on
these formulations"). See also Mason v. Wal-Mart, 333 Ark. 3,
969 S.W.2d 160 (1998) (stating the decision "to require the plaintiff to
prove improper conduct in a tortious interference with contract claim
has placed Arkansas in line with a majority of jurisdictions in the
United States").
70 Mackenzie, 2000
WI App 48, 234 Wis. 2d 1, 608 N.W.2d 331.
71 Id. at 64, 234
Wis. 2d at 48, 608 N.W.2d at 350. See also Dovin, supra note 36, 43 F.
Supp. 2d at 1035 (stating "plaintiff has failed to present any evidence
upon which a reasonable jury could find that the conduct of [the
defendants] improperly interfered with her contract with [the Clinic]")
(emphasis added).
72 Mackenzie, 2001
WI 23 at 13.
73 See Bachand v.
Connecticut Gen. Life Ins. Co., 101 Wis. 2d 617, 631 n. 3, 305
N.W.2d 149, 155 n. 3 (Ct. App. 1980) (stating "persons in the employment
arena, although relatively unrestrained in their contractual relations,
may not completely disregard the rights of the persons with whom they
deal").
