7th Circuit Expands Wisconsin Law, Makes “Substantial Truthfulness” a Tortious Interference Defense
The Seventh Circuit Court of Appeals recently took an expansive view of Wisconsin law on tortious interference with employment. Wesbrook v. Ulrich, No. 15-3870 (7th Cir. Oct. 20, 2016). Wesbrook involves co-workers speaking negatively about another co-worker. Under Wisconsin law, negative statements will not support a tortious interference with an at-will employment claim if the statements were truthful. See Mackenzie v. Miller Brewing Co., 2000 WI App 48, ¶63, 234 Wis. 2d 1, 608 N.W.2d 331. The Seventh Circuit in Wesbrook liberally interprets Wisconsin law by holding that the co-workers’ negative statements did not support a tortious interference claim because the statements were substantially true.
The Marshfield Clinic’s board of directors voted to terminate Dr. Stephen Wesbrook’s employment in January 2012. Beginning in 2006, Dr. Wesbrook served as deputy director of Marshfield Clinic’s research foundation. Dr. Wesbrook was not always popular with his colleagues. After his termination, he sued the Clinic’s CEO, Dr. Ulrich, and a former colleague in the research foundation, Dr. Belongia. Dr. Wesbrook’s suit alleged that the defendants had tortiously interfered with his employment. This allegation was based on unfavorable statements Dr. Belongia made in a letter to Dr. Ulrich, who later distributed the letter to the board. Dr. Belongia’s letter alleged that Dr. Wesbrook coerced other employees, that many employees and people associated with the Clinic complained about him, and that he breached a performance improvement plan.
Under Wisconsin tortious law, a successful tortious interference with a contract claim requires the plaintiff to prove that: (1) the plaintiff had a contractual relationship with a third party (2) the defendant interfered with that relationship (3) the defendant’s interference was intentional (4) there was a causal connection between the interference and damages, and (5) the defendant was not justified or privileged to interfere. Briesmeister v. Lehner, 2006 WI App 140, ¶48, 295 Wis. 2d 429, 720 N.W.2d 531. The only element on dispute in the appellate court was the final one.
Dr. Ulrich and Dr. Belongia argued their statements about Dr. Wesbrook were true—and therefore privileged. The district court granted the defendant’s motion for summary judgment. In doing so, it “found that the undisputed facts showed that each of the challenged statements was true or at least substantially true.” Wesbrook, slip op. at 10. On that basis, it deemed the statements privileged. The Seventh Circuit affirmed the district court’s holding and reasoning.
The Seventh Circuit correctly identifies an exception to tortious interference with a contract claim under Wisconsin law. “If a claim for tortious interference is based on statements that are true, the claim must fail as a matter of law.” Id., slip op. at 11. The court then relies on two defamation cases for the proposition that “a statement may be substantially true—and thus privileged—even if some fine splitting of semantic hairs might leave room to argue about its literal truth.” Id., slip op. at 12 (citing Terry v. Journal Broad. Corp., 2013 WI App 130, ¶16, 840 N.W.2d 255). The court acknowledges that no precedential Wisconsin opinion has applied this principle to tortious inference cases but explains that the panel “see[s] no principled reason, though, why the defense would not apply with equal force in this context.” Id., slip op. at 12.
The Seventh Circuit then analyzes the defendants’ statements about Dr. Wesbrook, reaching the conclusion that the statements “were each true or substantially true, we agree with the district court that no reasonable jury could find tortious interference on this record.” Id., slip op. at 18.
The Seventh Circuit’s holding in Wesbrook v. Ulrich blurs an otherwise bright-line rule. Now, plaintiffs in federal court cannot merely point to evidence that shows the defendant’s words or statements were false in some regard. Plaintiffs must prove a larger degree of falsity in the defendant’s words. Defendants alleged to have tortiously interfered with a contract will benefit from this lower standard of “substantial truthfulness.”
Law clerk Olivia Pietrantoni assisted in researching and writing this post.
