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Bukstein v. Dean Health Systems, Inc.

Court of Appeals of Wisconsin, District IV

July 20, 2017

Donald Bukstein, M.D., Plaintiff-Respondent,
v.
Dean Health Systems, Inc., Defendant-Appellant.

         APPEAL from a judgment and order of the circuit court for Dane County: No. 2014CV2726, RHONDA L. LANFORD, Judge.

          Before Lundsten, Sherman, and Blanchard, JJ.

          BLANCHARD, J.

         ¶1 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.

         ¶2 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.

         ¶3 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.

         BACKGROUND

         ¶4 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").[1]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 and benefits.[2]

         ¶5 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.

         ¶6 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.

         ¶7 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.

         ¶8 We include additional facts below as necessary to our discussion.

         DISCUSSION

         ¶9 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.

         ¶10 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.

         Breach Of Contract Claim

         ¶11 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 dismissed.

         ¶12 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.

         ¶13 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 ...


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