from a judgment and order of the circuit court for Dane
County: No. 2014CV2726, RHONDA L. LANFORD, Judge.
Lundsten, Sherman, and Blanchard, JJ.
Dean Health Systems, Inc., terminated the employment of
physician-employee Donald Bukstein "without cause,
" pursuant to an "at-will" provision in a
written employment agreement between Dean and Bukstein.
Bukstein sued Dean for breach of contract and breach of the
duty of good faith and fair dealing in connection with the
termination. The circuit court denied Dean's motion for
summary judgment. At a jury trial, Bukstein prevailed on both
claims. Dean appeals the judgment entered in favor of
Bukstein, as well as the order of the circuit court denying
Dean's motion for summary judgment and the court's
denial of Dean's post-verdict motions.
Dean argues that Bukstein's termination was consistent
with the at-will provision in the employment agreement, which
allows either party to terminate the employment relationship,
at any time and "without cause." Dean also argues
that it was under no duty to terminate Bukstein only in good
faith, because Bukstein was an at-will employee under the
employment agreement. Therefore, Dean argues, the circuit
court should have granted Dean's motion for summary
judgment on both of Bukstein's claims.
We agree with Dean that the case should have been dismissed
on summary judgment, because the at-will provision authorized
Dean to terminate Bukstein without cause. Accordingly we
reverse and remand to the circuit court to enter an order
granting Dean's motion for summary judgment and
dismissing Bukstein's complaint in its entirety.
The parties do not dispute the following pertinent facts.
Dean's physician-employees are called shareholders.
Bukstein was employed as a Dean shareholder from 1981 to
2012. In 2008, Dean and Bukstein entered into the written
Shareholder Employment Agreement ("the employment
agreement").The employment agreement contains an
at-will provision giving Dean the right to terminate its
employment relationship with Bukstein "at any time"
and "without cause, " so long as two conditions
were met: (1) Dean provided Bukstein with 90 days'
written notice, and (2) at least three-fourths of the members
of the Dean Board of Directors voted to terminate his
employment "without cause." Bukstein had a parallel
right under the at-will provision to end his employment
relationship with Dean. Bukstein could terminate the
employment relationship, so long as he first provided Dean
with 90 days' written notice, at any time and could do so
for any reason or no reason. In sum, assuming compliance with
the 90-day notice requirement, Dean could invoke the at-will
provision to terminate Bukstein "without cause, "
or Bukstein could sever the employment relationship, and in
either case Bukstein would receive a final 90 days of salary
Three patients of Bukstein, on an individual basis and in
each of three separate years, reported to Dean that he had
touched them in a sexual manner during the course of
examination or treatment. As a result, Dean's Office of
Medical Affairs, which investigates complaints against Dean
physicians, eventually conducted an investigation.
After Dean completed its investigation, there were several
meetings of the Dean Board. In addition, pursuant to a Dean
management policy, committees met to discuss findings from
the investigation results. We describe the management policy
document in greater detail in the discussion below. For now
it is sufficient to know that the policy is contained in a
document promulgated after and separate from the employment
agreement and that, with respect to the investigation into
Bukstein's misconduct, Dean followed some of the
procedures outlined in that policy. Dean did not, however,
terminate Bukstein under that policy. Rather, the Board
relied on its understanding that it had the authority to
terminate Bukstein without cause based on Bukstein's
at-will employment status specified in the employment
agreement. Dean gave Bukstein an opportunity to be heard at
each meeting. After initially voting against terminating
Bukstein, the Board voted to terminate Bukstein's
employment "without cause, " expressly relying on
the at-will provision.
Relying on the Dean management policy, Bukstein filed this
action alleging two causes of action related to the
termination: (1) breach of contract and (2) breach of the
duty of good faith and fair dealing. Dean moved for summary
judgment on both causes of action. The circuit court denied
Dean's motion. At trial, the jury returned verdicts in
Bukstein's favor. Dean filed post-verdict motions, which
the circuit court denied. The court entered final judgment on
the jury's verdict. Dean appeals.
We include additional facts below as necessary to our
As noted, we conclude that Dean was entitled to summary
judgment dismissing Bukstein's complaint. We review
denials of summary judgment de novo. Wolf v. F&M
Banks, 193 Wis.2d 439, 449, 534 N.W.2d 877 (1995).
Summary judgment is appropriate when there are no genuine
disputes as to the material facts and the moving party is
entitled to judgment as a matter of law. Id.
In the background section, we explained that the employment
agreement between Dean and Bukstein contains an at-will
provision allowing Dean to terminate Bukstein at any time,
with notice, without cause. As we explain below, the dispute
here involves whether a Dean management policy document,
which Bukstein contends gives him greater employment
protection, modifies the employment agreement or is an
additional stand-alone agreement between the parties.
Bukstein relies on the policy document as support for both
his contract claim and his good faith and fair dealing claim.
We address each claim in turn.
Of Contract Claim
As referenced above, the employment agreement contains an
at-will provision giving Dean the right to terminate Bukstein
"without cause, " so long as Dean met the notice
and Board vote requirements. Bukstein does not dispute that
Dean met these requirements in terminating him and that, if
the at-will provision governs, his claims should have been
Bukstein's breach of contract argument hinges entirely on
Dean's "Physician Practice and Performance
Management Policy." This policy document is just over
two pages in length and provides guidelines for Dean
investigations into allegations against physician-employees
such as Bukstein that could lead to discipline, including
termination of employment. For ease of reference, we refer to
this document as "the Dean policy, " or "the
policy." Dean issued the policy in 2008, and Bukstein
was given a copy. It is undisputed that neither Bukstein nor
any Dean representative ever signed the policy.
Significantly here, the Dean policy makes no reference to any
provision in the employment agreement, including the at-will
provision. To provide one illustrative example of its
contents, under the Dean policy "[c]oncerns regarding
physicians may be forwarded by employees or their supervisors
to [Dean's] Office of Medical Affairs, " which has
discretion under the policy to determine if any investigation
is warranted. The policy gives Dean broad discretion in how
to resolve an investigation: it may take no action at ...