Gilsinger v. Cities & Villages Mut. Ins. Co.

693 F.Supp.3d 975

Greg GILSINGER, Plaintiff, v. CITIES AND VILLAGES MUTUAL INSURANCE COMPANY, Defendant.

Case No. 21-CV-831-JPS

United States District Court, E.D. Wisconsin

Signed September 19, 2023

Nicholas O. Yurk, Alan C. Olson, Alan C. Olson & Associates SC, New Berlin, WI, for Plaintiff.

Greg Gilsinger, Franklin, WI, Pro Se.

Ann C. Wirth, Joseph M. Wirth, Gregg J. Gunta, Jasmyne M. Baynard, Wirth & Baynard, Wauwatosa, WI, Kyle R. Moore, IFMK Law Ltd., Northbrook, IL, for Defendant.

ORDER

J.P. Stadtmueller, United States District Judge

Plaintiff Greg Gilsinger ("Gilsinger") sues Defendant Cities and Villages Mutual Insurance Company ("CVMIC"), his former employer. At this juncture, the operative complaint is Gilsinger's second amended complaint. ECF No. 54. Since the filing of the second amended complaint, the parties stipulated to the dismissal of former defendant Andrew Serio ("Serio") and former intervenor defendant American Family Mutual Insurance Company, ECF No. 60, which stipulation the Court adopted, ECF No. 63. The parties have since also stipulated to the dismissal without prejudice and without costs of Gilsinger's claim for injury to business in violation of Wis. Stat. § 134.01 against CVMIC. ECF No. 68. The Court will adopt that stipulation.

Gilsinger's remaining claims against CVMIC are (1) Fourteenth Amendment violation of the right to procedural due process; (2) First Amendment retaliation; (3) common law defamation; (4) common law intentional interference with professional relationships; (5) common law breach of contract; (6) common law promissory estoppel; and (7) common law breach of the covenant of good faith and fair dealing. ECF No. 74 at 1. Before the Court is CVMIC's motion for summary judgment on all seven remaining claims. ECF No. 71. The motion is fully briefed, ECF Nos. 77, 80, 87, and for the reasons set forth below, will be granted.

1. LEGAL STANDARD

Under Federal Rule of Civil Procedure 56, the "court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56; Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016). A "genuine" dispute of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The Court construes all facts and reasonable inferences in a light most favorable to the nonmovant. Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 360 (7th Cir. 2016) (citing Burritt v. Ditlefsen, 807 F.3d 239, 248 (7th Cir. 2015)). In assessing the parties' proposed facts, the Court must not weigh the evidence or determine witness credibility; the Seventh Circuit instructs that "we leave those tasks to factfinders." Berry v. Chi. Transit Auth., 618 F.3d 688, 691 (7th Cir. 2010) (citing Anderson, 477 U.S. at 255, 106 S.Ct. 2505 and Kodish v. Oakbrook Terrace Fire Protection Dist., 604 F.3d 490, 505 (7th Cir. 2010)).

2. RELEVANT FACTS¹

2.1 CVMIC Background

CVMIC is a member-owned, self-funded municipal mutual insurance company created by the cooperative participation of Wisconsin municipalities with the purpose of providing liability insurance coverage for Wisconsin municipalities. CVMIC's creation was approved by the Wisconsin Department of the Insurance Commissioner. CVMIC was formed under the Wis. Stat. ch. 611 for mutual insurance companies. CVMIC files a Form 1120-C corporate tax return. CVMIC uses the practice of statutory accounting principles governed by the Office of the Commissioner of Insurance, and not by the Governmental Accounting Standards Board. CVMIC's Chief Financial Officer, Michelle Voskuil ("Voskuil"), testified that CVMIC is allowed to invest in stocks and equities, unlike governmental entities. CVMIC does not participate in the Wisconsin Retirement Fund.

CVMIC's income is excluded from taxable income under Section 115 of the Internal Revenue Code because it "perform[s] an essential government function." CVMIC is exempt from sales tax. CVMIC's application for Wisconsin sales and use tax exemption states that CVMIC is a "Wisconsin Governmental Unit or agency thereof." Voskuil testified that CVMIC's exempt status from Wisconsin sales and use tax is because CVMIC's income comes from public funds, i.e., premiums from the municipalities. In a 1991 letter, the Wisconsin Department of Workforce Development stated that CVMIC was considered to be a "governmental agency" and a "government unit" for unemployment insurance purposes. CVMIC allows its employees, on a voluntary basis, to participate in an IRC § 457(c) deferred compensation plan, but CVMIC provides no contributions to this plan. CVMIC does not file any Form 5500 Annual Reports or Form 5500-SF Short Form Annual Reports, although Voskuil testified that CVMIC is not required to do so as it has less than 100 employees. The day-to-day operations of CVMIC are conducted by CVMIC Management, as defined below.

Gilsinger came to believe that CVMIC was a governmental entity after his employment was terminated. During his employment with CVMIC, no one at CVMIC ever represented to Gilsinger that CVMIC was a governmental employer.

2.2 CVMIC Employment Terms

The 2015 CVMIC employee manual (the "Employee Manual") designates all CVMIC employees as at-will employees. The Employee Manual states:

This Employee Policies and Procedures Manual (the "Employee Manual") provides the employees of Cities and Villages Mutual Insurance Company (CVMIC) with a guide concerning the general operating principles and policies of CVMIC. While CVMIC believes wholeheartedly in the policies, practices and procedures described here, they are not conditions of employment. They are intended as guidelines, and the Employee Manual does not create a contract between CVMIC and any of its employees.

Employment with CVMIC is at-will, meaning one's employment is voluntary and is subject to termination by either party, with or without cause, and with or without notice, at any time. Nothing in these policies shall be interpreted to be in conflict with, or to eliminate or modify in any way, the employment at-will status of CVMIC employees. This policy of employment at-will may not be modified by any officer or employee and shall not be modified in any publication or document. The only exception to this is a written employment agreement signed by the Executive Director.

Gilsinger testified that a "last chance agreement" offered to a former subordinate of his, Merrie Strike ("Strike"), was part of a pattern or practice of "progressive discipline." Gilsinger also testified that in conversations about Strike's progressive discipline, CVMIC's Human Resources Director, Jean Cole ("Cole"), told Gilsinger that "nobody is really at will anymore." The last chance agreement offered by CVMIC to Strike contains a bold-faced, all-caps provision stating: "THIS AGREEMENT IN NO WAY CHANGES MERRIE STRIKE'S AT WILL EMPLOYMENT STATUS WITH CVMIC." Gilsinger signed the last chance agreement as Strike's superior.

The Employee Manual also includes a grievance procedure (the "Grievance Procedure"):

GRIEVANCE PROCEDURE

CVMIC endeavors to treat all employees fairly. In the event an employee has a concern about any matter concerning employment, the employee may address it as follows:

1. Initially discuss the concern with the direct supervisor and attempt to resolve the concern without further action.

2. If an employee wishes to continue further dialogue they should, address the concern, in writing, to the Human Resources Manager, Director of Operations or the Executive Director.

3. If following the Human Resources Manager, Director of Operations' or Executive Director's review, the employee is not satisfied with the decision rendered, the employee may present a written appeal to the CVMIC Board of Directors, whose decision will be final.

There is no provision for an appeal hearing in the Employee Manual.

2.3 Gilsinger's Employment with CVMIC

Gilsinger was hired by CVMIC in 1997 as a worker's compensation claims manager and was promoted to the Director of Workers Compensation Claims in 2016. No formal written employment contract exists between Gilsinger and CVMIC. Gilsinger concedes that the Employee Manual is not an employment contract between himself and CVMIC. Gilsinger signed an acknowledgment that he received the Employee Manual on February 2, 2016. The language within the Employee Manual stating that its terms do not create a contract and that CVMIC employment is at-will did not change from February 2, 2016, through Gilsinger's termination in 2019.

In early 2019, CVMIC's Director of Liability Claims confidentially informed Cole, Voskuil, and CVMIC's Chief Executive Officer, Ken Horner ("Horner"), (collectively, "CVMIC Management") of his intent to retire by July 2020. That information was relayed to the CVMIC Board of Directors (the "Board"). Thereafter, Horner claims that he began assessing organizational needs and determined that having two claims directors (Workers Compensation and Liability) was not optimal given that a single director could manage both activities. Gilsinger alleges that the restructuring was pretextual.

On October 30, 2019, Horner outlined the reorganization plan and the elimination of Gilsinger's position to the Board. Gilsinger's employment with CVMIC was terminated on October 31, 2019, which is when Gilsinger was first notified of his termination. The cited reason for Gilsinger's termination was an organizational reorganization. Gilsinger believed that his employment had terminated with that notice. Gilsinger was the only employee whose position was eliminated at that time. Gilsinger was offered a severance agreement that he had twenty-one days to accept, and he was permitted to remain on CVMIC's payroll during that consideration period.

Gilsinger requested to appeal the elimination of his position...