Vonda Johnson v. School District of Flambeau

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
October 20, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2019AP725 Cir. Ct. No. 2018CV17

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

VONDA JOHNSON,

PLAINTIFF-APPELLANT,

V.

SCHOOL DISTRICT OF FLAMBEAU,

DEFENDANT-RESPONDENT.

APPEAL from a judgment of the circuit court for Rusk County:
STEVEN P. ANDERSON, Judge. Affirmed.

Before Stark, P.J., Hruz and Seidl, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Vonda Johnson appeals an order granting a motion
for summary judgment in favor of the School District of Flambeau, and dismissing
No. 2019AP725

Johnson’s complaint with prejudice. Johnson argues that the District’s employee
handbook created an express contract altering Johnson’s at-will employment
status, and that the District violated the contract. Johnson alternatively claims
there was a triable issue on her promissory estoppel claim based on her purported
reliance on language in the handbook. Johnson also contends the circuit court
erred by refusing to apply the public policy exception to the at-will employment
doctrine. We reject these arguments and affirm the order.

BACKGROUND

¶2 Johnson worked for the District during the 2015-2016 and
2016-2017 school years. It is undisputed that Johnson had a written employment
contract for each school year and that she was an at-will employee under those
contracts. Johnson was also provided an employee handbook that expressly stated
it did “not constitute a separate contract of employment” and did not contain
conditions of employment. The handbook further stated: “The District reserves
the right to change any or all employee standards. Employment may be
terminated at any time, with or without cause, except as explicitly provided for in
any other pertinent section of this Handbook or individual contract.”

¶3 The 2016-2017 employee handbook included a section on
“whistleblower protection” with three subsections: (A) complaint procedure;
(B) purpose; and (C) anti-retaliation. The complaint procedure subsection
provided:

If any employee of the District reasonably believes that
some policy, practice, or activity of the District is in
violation of law, a written complaint must be filed by that
employee with the District Administrator. If the complaint
is about a practice or activity of the District Administrator,
the complaint must be filed with the Board President.

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The stated purpose of the whistleblower protection provision was to support the
District’s goal of legal compliance. Additionally, the anti-retaliation subsection
stated, in relevant part:

An employee is protected from retaliation only if the
employee brings the alleged unlawful policy, practice, or
activity to the attention of the District and provides the
District with a reasonable opportunity to investigate and
correct the alleged unlawful policy, practice, or activity
pursuant to the District’s chain of command or complaint
policies. The protection described below is only available
to employees who comply with this requirement. The
protection against retaliation that is described below does
not limit the District from taking disciplinary or other
employment action, including termination, against an
employee where that discipline or employment action is not
based on the employee’s filing of a good faith complaint
under this policy. The District will not retaliate against an
employee who in good faith has made a protest or raised a
complaint against some policy, practice, or activity of the
District, or of another individual or entity with whom the
District has a business relationship, on the basis of a
reasonable belief that the policy, practice, or activity is in
violation of law or a clear mandate of public policy. The
District will not retaliate against an employee who
discloses or threatens to disclose to a supervisor or a public
body any policy, practice, or activity of the District that the
employee reasonably believes is in violation of law or a
rule or regulation mandated pursuant to law or is in
violation of a clear mandate of public policy concerning the
health, safety, welfare, or protection of the environment.

¶4 During the first year of her employment, Johnson worked as a high
school special education teacher, with a class of approximately eighteen to twenty
students. Before the end of that year, Johnson agreed to develop and run an
alternative education program for the 2016-2017 school year. At the start of the
2016-2017 school year, Johnson discovered that contrary to her expectations, the
District would not be replacing her as a special education teacher. Rather,
responsibility for teaching the special education students would be divided

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between her and another teacher, Eileen Dean. Therefore, in addition to teaching
twelve alternative education students, Johnson was responsible for teaching
approximately ten special education students.

¶5 Johnson and Dean, concerned about their caseload, researched the
Department of Public Instruction’s (DPI) website and located a formula for
calculating caseloads for special education teachers. Based on their calculations,
both teachers determined they were over their recommended caseloads. It is
undisputed that Johnson did not file a written complaint with the District
Administrator as required in the handbook’s complaint procedure. Johnson
initially complained to Special Education Director Megan Dieckman in person,
through phone calls, and through emails, advising Dieckman that she needed help
and could not comply with all of the individual education plans (IEPs) for her
special education students in addition to creating and teaching the alternative
education program. During the first semester of the 2016-2017 school year,
Johnson received the help of a “paraeducator” for one hour per day, which
Johnson deemed insufficient to meet the requirements of the IEPs.

¶6 In October 2016, Johnson and Dean, along with Special Education
Aide Shane Sanderson, met with members of the administration, including
Dieckman, Principal Erica Schley, and Interim District Administrator Richard
Hanson regarding the caseload concerns. Before that meeting, Johnson reviewed
the anti-retaliation language of the employee handbook because she wanted to
voice her concerns regarding the District’s compliance with state and federal law
governing special education students without fear of retaliation. At the meeting,
Johnson expressed concern that she could not meet the requirements of every IEP
with her current caseload. In November 2016, Sanderson was hired as a special
education teacher, and several of Johnson’s students were transferred to

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Sanderson, leaving Johnson with eight of the special education students in addition
to all of her alternative education students.

¶7 The District asserts that prior to the October 2016 meeting, the
administrative team perceived a change in Johnson’s attitude and performance
from the previous school year, noting that in the 2016-2017 school year she had
problems arriving at work on time and she called in sick more than usual.
Dieckman asserted that in late September and October, she observed behavioral
issues in Johnson’s classroom, noting that Johnson utilized packets and
worksheets rather than taking a “hands-on” approach with her students.
Additionally, the District deemed the tone and content of Johnson’s emails to
Dieckman as inappropriate communication with a direct supervisor. Johnson
denied that there were any problems with her performance beyond issues flowing
from the excessive caseload assigned to her by the District.

¶8 It is undisputed that in December 2016, Schley presented Johnson
with a Performance Improvement Plan (“PIP”) that Johnson refused to sign
because she did not agree that her performance needed to improve. Despite her
refusal to sign the PIP, Johnson believed she was nevertheless working “under the
plan.” Although Johnson completed some of the tasks identified in the PIP, she
did not satisfy all of its requirements.

¶9 In March 2017, Johnson was notified in writing that the School
Board was considering non-renewal of her employment contract. At her request,
Johnson was given a private conference with the Board, during which Johnson
provided letters of recommendation, a student petition opposing her non-renewal,
and a performance evaluation from the previous year. Johnson told the Board that
she felt she was doing her job to the best of her ability, given her caseload of

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alternative education and special education students. Johnson also expressed to
the Board that she felt harassed and persecuted by school administrators “through
constant emails” and “showing up” at Johnson’s classroom telling her she had to
sign the PIP.

¶10 On April 19, 2017, a majority of the School Board voted to approve
final notice of non-renewal of Johnson’s employment contract based on her refusal
to acknowledge and sign the PIP, and her failure to meet the requirements of the
PIP. Johnson subsequently filed the underlying suit against the District alleging
breach of an employment contract, promissory estoppel, and wrongful termination
under the public policy exception to the at-will employment doctrine. The circuit
court granted summary judgment in favor of the District, and this appeal follows.

DISCUSSION

¶11 This court reviews summary judgment decisions independently,
applying the same standards as the circuit court. Smith v. Dodgeville Mut. Ins.
Co., 212 Wis. 2d 226, 232, 568 N.W.2d 31 (Ct. App. 1997). Summary judgment
is granted when there are no genuine issues of material fact and the moving party
is entitled to judgment as a matter of law. Green Spring Farms v. Kersten, 136
Wis. 2d 304, 315, 401 N.W.2d 816 (1987).

A. Breach of Contract

¶12 It is well established in Wisconsin that employment is terminable at
the will of either an employer or an employee without cause. Wolf v. F & M
Banks, 193 Wis. 2d 439, 449, 534 N.W.2d 877 (Ct. App. 1995). Unless the
parties expressly abrogate the employee’s at-will status, an employee is
“dischargeable at the whim of the employer, subject to the unusual public policy

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considerations that may occasionally arise.” Id. at 450. Such an abrogation may
be evidenced by an express or implied contract. See Ferraro v. Koelsch, 124
Wis. 2d 154, 157-58, 368 N.W.2d 666 (1995).

¶13 Johnson contends that the District’s employee handbook—
specifically, the whistleblower protection provision—altered her at-will
employment status and created an express employment contract. In Ferraro, our
supreme court concluded that representations in an employee handbook may, as a
matter of law, limit the power of an employer to terminate an employment
relationship that would otherwise be terminable at will. Id. at 157. An
employment manual may alter an at-will employment relationship, however, “only
if the manual contains express provisions from which it reasonably could be
inferred that the parties intended to bind each other to a different relationship.”
Bantz v. Montgomery Estates, Inc., 163 Wis. 2d 973, 979, 473 N.W.2d 506
(Ct. App. 1991).

¶14 We need not determine whether the whistleblower protection
provision of the employee handbook created a separate employment contract
because, even if did, Johnson fails to establish that she is entitled to its protection,
for two reasons. First, as noted above, the complaint procedure subsection of the
handbook’s whistleblower protection provision specifies that “[i]f any employee
of the District reasonably believes that some policy, practice, or activity of the
District is in violation of law, a written complaint must be filed by that employee
with the District Administrator.” It is undisputed that Johnson made no written
complaint to the District Administrator. Citing the anti-retaliation subsection,
Johnson suggests she was required only to bring the unlawful policy, practice, or
activity “to the attention” of the District and provide the District with a reasonable
opportunity to investigate and correct the alleged unlawful policy, practice, or

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activity. This argument, however, ignores the whistleblower protection provision
when viewed as a whole.

¶15 We construe contracts as they are written, giving the contract
language its plain or ordinary meaning, consistent with what a reasonable person
would understand the words to mean under the circumstances. Tufail v. Midwest
Hosp., LLC, 2013 WI 62, ¶¶28-29, 348 Wis. 2d 631, 833 N.W.2d 586. As
relevant here, “we read a contract as a whole, to avoid the potential for ambiguity
that can result if a small part of the agreement is read out of context.” Little Chute
Area Sch. Dist. v. Wisconsin Educ. Ass’n Council, 2017 WI App 11, ¶25, 373
Wis. 2d 668, 892 N.W.2d 312. Here, to be afforded the whistleblower provision’s
anti-retaliation protection, Johnson was required to follow the provision’s
complaint procedure. Her lack of a written complaint to the District Administrator
fails in this regard.

¶16 Second, Johnson failed to comply with the provision’s requirement
that she “specify a policy, practice, or activity of the District that was in violation
of law.” Johnson complained of an excessive caseload, citing the DPI website’s
caseload formula; however, a departure from the website’s caseload
recommendations itself does not establish that a District policy, practice, or
activity was in violation of law. To the extent Johnson argues that she was
concerned her caseload would prevent her from completing IEPs or complying
with their requirements under the law, her fear of a future violation of the law is
not protected under the employee handbook’s whistleblower protection provision.

¶17 Finally, even assuming Johnson could show that her expressed
concern was protected under the whistleblower protection provision, the record
does not provide a non-speculative basis for concluding that the non-renewal of

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her contract was in retaliation for her caseload concerns or their possible impact
on the District’s special education program. The employee handbook’s
whistleblower provision specifies that the protection against retaliation does not
limit the District “from taking disciplinary or other employment action, including
termination, against an employee where that discipline or employment action is
not based on the employee’s filing of a good faith complaint under this policy.”

¶18 Given the summary judgment record, there is no material question of
fact that the School Board did not renew Johnson’s contract because she refused to
sign the PIP and otherwise failed to comply with all of its requirements. To the
extent Johnson asserts that the Board was duped into approving the non-renewal
by the discriminatory motives of the school administrators, Johnson made her case
to the Board before it voted to terminate her employment for the upcoming year.
Johnson sought help with her caseload and the District provided some assistance
that Johnson viewed as insufficient. Ultimately, Johnson failed to make a
prima facie case that her complaints about what she perceived as the
administration’s failure or refusal to provide her with more caseload assistance
were entitled to protection under the employee handbook’s whistleblower
provision. The circuit court properly dismissed her breach of contract claim
against the District.

B. Promissory Estoppel

¶19 Johnson alternatively argues that the circuit court erred by
dismissing her promissory estoppel claim. To prevail on her claim, Johnson must
prove that: (1) the District made a promise that it reasonably should have
expected to induce action or forbearance of a definite and substantial character by
Johnson; (2) the promise induced such action or forbearance; and (3) injustice can

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be avoided only by enforcement of the promise. See Mackenzie v. Miller
Brewing Co., 2001 WI 23, ¶25, 241 Wis. 2d 700, 623 N.W.2d 739. Johnson
asserts that the anti-retaliation portion of the employee handbook promised that if
she complained that a District policy, practice, or activity violated the law, she
would not be terminated from her position for lodging the complaint. Johnson
further contends that she relied upon that promise in coming forward with her
complaints, and that injustice can only be avoided by enforcement of the
handbook’s promise.

¶20 We again need not determine whether the employee handbook
created a contract providing that Johnson’s employment would not be terminated
if she complied with the whistleblower protection provision. Even if that contract
existed, Johnson cannot establish that the promise not to retaliate induced her to
action “of a definite and substantial character.” The only action Johnson took in
reliance on the handbook was to verbally complain to the District Administrator
that she felt she had too many students to comply with IEP requirements. Further,
Johnson cannot establish that injustice can be avoided only by enforcement of the
promise. As noted above, the record establishes that she was not terminated for
making a protected complaint under the handbook. Her non-renewal arose from
her refusal to sign the PIP or complete its requirements. Johnson’s promissory
estoppel claim therefore fails as a matter of law.

C. Public Policy

¶21 Finally, Johnson argues the circuit court erred by refusing to apply
the public policy exception to the at-will employment doctrine. An at-will
employee may sue for wrongful discharge where the discharge is contrary to a
fundamental and well-defined public policy as evidenced by existing law.

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Bammert v. Don’s Super Valu, Inc., 2002 WI 85, ¶9, 254 Wis. 2d 347, 646
N.W.2d 365. Thus, “[a]n employer may not require an employee to violate a
constitutional or statutory provision with impunity.” Brockmeyer v. Dun &
Bradstreet, 113 Wis. 2d 561, 573, 335 N.W.2d 834 (1983). “If an employee
refuses to act in an unlawful manner, the employer would be violating public
policy by terminating the employee for such behavior.” Id. Our supreme court
has also held that where the law imposes an affirmative legal obligation on an
employee to take action, an employer’s termination of the employee for fulfilling
the legal obligation exposes the employer to a wrongful termination action. See
Hausman v. St. Croix Care Ctr., 214 Wis. 2d 655, 669, 571 N.W.2d 393 (1997).

¶22 Here, Johnson argues that state and federal law set forth the public
policies that favor free, appropriate public education to disabled students and
adequate resources for that education, including the creation and implementation
of IEPs. Johnson further emphasizes the laws that prohibit discrimination against
disabled students and criminalize misconduct in public office. Johnson asserts she
was terminated because she complained, based on her caseload, that she would not
be able to comply with her affirmative obligations under the law. According to
Johnson, she was therefore put in the position of reporting and being terminated,
or not reporting and violating the law. We are not persuaded.

¶23 The public policies to which Johnson cites are far too attenuated
from the particular actions she took in this case. There was no actual violation of
any law or policy that Johnson alleged had occurred—she alleged only that a
violation could occur. Johnson does not allege that the District commanded her to
violate public policy, nor did Johnson have an affirmative obligation imposed
under law to complain about her caseload. While Johnson may have perceived

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that her workload would impede her ability to fully implement her students’ IEPs,
that perception does not state a viable public policy discharge claim.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5. (2017-18).

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