LOUIS J. CECI, J.
This case is before the court on petition for review of a published decision of the court of appeals, Vorwald v. River Falls School Dist., 160 Wis. 2d 536, 466 N.W.2d 683 (Ct. App. 1991), reversing a summary judgment by the circuit court for Pierce County, Robert W. Wing, Circuit Judge. The circuit court dismissed Curtis R. Vorwald's (Vorwald) 42 U.S.C. sec. 1983 (sec. 1983) claim because the court determined that Vorwald's exclusive remedy was under the Wiscon[552]*552sin Worker's Compensation Act, secs. 102.01-102.89, Stats. (WCA). The court of appeals reversed, finding that the WCA does not bar a sec. 1983 claim when the state terminates an employee without adequate notice and an opportunity to respond. Vorwald, 160 Wis. 2d at 539. Because we find that Vorwald was an employee at will and therefore had no substantive right to continued employment, we reverse the court of appeals.
The relevant facts are not in dispute. Vorwald was a custodian for the school district of River Falls (the school district). Prior to his termination, Vorwald suffered a work-related injury which resulted in his no longer being able to wet-mop or to lift anything weighing more than 20 pounds. At a meeting of the school board (the board) on September 19, 1988, the board's personnel committee recommended to the board that Vorwald's employment be terminated, due to Vorwald's work restrictions. Based on that recommendation, the full board then voted to terminate Vorwald's employment. Vorwald was present at the meetings of both the board and the personnel committee. Vorwald filed a summons and complaint in circuit court on April 26,1989, alleging that his termination violated 42 U.S.C. sec. 1983.
Whether Vorwald has a valid sec. 1983 claim is a question of law. We decide questions of law without deference to the decisions of the lower courts. Pulsfus Farms v. Town of Leeds, 149 Wis. 2d 797, 803-04, 440 N.W.2d 329 (1989).
Vorwald's complaint alleged a violation of procedural due process. A sec. 1983 action may be brought for a violation of procedural due process. Zinermon v. Burch, 494 U.S. 113, 125 (1990). However, "[t]he requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amend[553]*553ment's protection of liberty and property." Board of Regents v. Roth, 408 U.S. 564, 569 (1972). As the court of appeals correctly stated, "If Vorwald has a property right in his employment, the state cannot deprive him of this right without due process.” Vorwald, 160 Wis. 2d at 542. We must therefore examine whether Vorwald has a property interest in his employment.
The court of appeals did not address the issue of whether Vorwald had a property interest in his employment. Rather, the court of appeals stated: "The school district maintains that Vorwald has no recognizable property interest in his employment. Because this issue is neither argued nor briefed, we decline to address it." Vorwald, 160 Wis. 2d at 542 n.3. The school district maintains that it argued Vorwald's lack of a property interest in his employment at both the circuit court and the court of appeals. We agree with the school district that the issue of whether Vorwald has a property interest in his employment has been argued continuously from the inception of the case.
The amended answer filed in circuit court by the school district states: "Plaintiff has failed to state a claim upon which relief can be granted because the Complaint does not set forth any cognizable deprivation of any rights, privileges or immunities extended by the United States Constitution or the Constitution of the State of Wisconsin." Additionally, in its Notice of Motion and Motion for Summary Judgment, the school district argued that '’the Plaintiff has no cognizable property interest under Wisconsin law which is required for the Plaintiff to prevail under Section 1983” (emphasis added). Furthermore, in its brief in support of its motion for summary judgment, the school district argued:
[554]*554[Vorwald] cannot claim that he had any right to continued employment, which is what is required to demonstrate a property interest, because the Worker's Compensation Act has usurped the field . . . and has set forth exactly what rights an injured worker has in his employment.
Accordingly, Plaintiffs claim for violation of a due process right must fail where no property interest can be shown under Wisconsin law.
(Emphasis added.) Finally, in its reply brief in support of its motion for summary judgment, the school district concluded:
[G]iven the existence and applicability of the exclusive remedy provisions under the Worker's Compensation Act and alternatively, the Wisconsin Fair Employment Act, the interest which [Vorwald] claims in his job right would not amount to entitlement under the facts of this case. Contrary to [Vorwald,'s] claim that public employment in and of itself creates a property interest in Wisconsin, employment at will is the rule absent a showing of entitlement or some enforceable basis for a continued expectation of employment.
(Emphasis added.) The above excerpts from the circuit court record show that the issue of whether Vorwald had a property interest in his employment was raised and argued by the school district at the circuit court level.
In the school district's brief before the court of appeals, the school district argued:
[Vorwald] has no recognizable property interest in employment under Wisconsin's laws; and that even if he did, the availability of a Worker's Compensation Hearing provides adequate due process . . ..
[555]*555What the [school district is] saying is that the facts of this case are based upon a property interest in employment; that such a property interest is determined by reference to interest created and enforceable under State law; and that there is no interest that is enforceable under State law in this case because of the operation of the Worker's Compensation Act.
The exclusivity provisions of that Act operate to preclude any enforceable property interest in employment, which is a necessary basis for a procedural due process claim.
(Emphasis added.) As the above excerpts illustrate, the school district's argument at the court of appeals focused upon whether the operation of the WCA precluded the existence of an enforceable property interest in employment. However, the arguments address the general issue of whether Vorwald had a property interest in his employment.1 We therefore find that the issue of whether Vorwald had a property interest in his employment was also raised before the court of appeals. Accordingly, the school district is not raising this issue for the first time on appeal, as Vorwald contends. We therefore believe that the court of appeals should have addressed this issue.
Free access — add to your briefcase to read the full text and ask questions with AI
LOUIS J. CECI, J.
This case is before the court on petition for review of a published decision of the court of appeals, Vorwald v. River Falls School Dist., 160 Wis. 2d 536, 466 N.W.2d 683 (Ct. App. 1991), reversing a summary judgment by the circuit court for Pierce County, Robert W. Wing, Circuit Judge. The circuit court dismissed Curtis R. Vorwald's (Vorwald) 42 U.S.C. sec. 1983 (sec. 1983) claim because the court determined that Vorwald's exclusive remedy was under the Wiscon[552]*552sin Worker's Compensation Act, secs. 102.01-102.89, Stats. (WCA). The court of appeals reversed, finding that the WCA does not bar a sec. 1983 claim when the state terminates an employee without adequate notice and an opportunity to respond. Vorwald, 160 Wis. 2d at 539. Because we find that Vorwald was an employee at will and therefore had no substantive right to continued employment, we reverse the court of appeals.
The relevant facts are not in dispute. Vorwald was a custodian for the school district of River Falls (the school district). Prior to his termination, Vorwald suffered a work-related injury which resulted in his no longer being able to wet-mop or to lift anything weighing more than 20 pounds. At a meeting of the school board (the board) on September 19, 1988, the board's personnel committee recommended to the board that Vorwald's employment be terminated, due to Vorwald's work restrictions. Based on that recommendation, the full board then voted to terminate Vorwald's employment. Vorwald was present at the meetings of both the board and the personnel committee. Vorwald filed a summons and complaint in circuit court on April 26,1989, alleging that his termination violated 42 U.S.C. sec. 1983.
Whether Vorwald has a valid sec. 1983 claim is a question of law. We decide questions of law without deference to the decisions of the lower courts. Pulsfus Farms v. Town of Leeds, 149 Wis. 2d 797, 803-04, 440 N.W.2d 329 (1989).
Vorwald's complaint alleged a violation of procedural due process. A sec. 1983 action may be brought for a violation of procedural due process. Zinermon v. Burch, 494 U.S. 113, 125 (1990). However, "[t]he requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amend[553]*553ment's protection of liberty and property." Board of Regents v. Roth, 408 U.S. 564, 569 (1972). As the court of appeals correctly stated, "If Vorwald has a property right in his employment, the state cannot deprive him of this right without due process.” Vorwald, 160 Wis. 2d at 542. We must therefore examine whether Vorwald has a property interest in his employment.
The court of appeals did not address the issue of whether Vorwald had a property interest in his employment. Rather, the court of appeals stated: "The school district maintains that Vorwald has no recognizable property interest in his employment. Because this issue is neither argued nor briefed, we decline to address it." Vorwald, 160 Wis. 2d at 542 n.3. The school district maintains that it argued Vorwald's lack of a property interest in his employment at both the circuit court and the court of appeals. We agree with the school district that the issue of whether Vorwald has a property interest in his employment has been argued continuously from the inception of the case.
The amended answer filed in circuit court by the school district states: "Plaintiff has failed to state a claim upon which relief can be granted because the Complaint does not set forth any cognizable deprivation of any rights, privileges or immunities extended by the United States Constitution or the Constitution of the State of Wisconsin." Additionally, in its Notice of Motion and Motion for Summary Judgment, the school district argued that '’the Plaintiff has no cognizable property interest under Wisconsin law which is required for the Plaintiff to prevail under Section 1983” (emphasis added). Furthermore, in its brief in support of its motion for summary judgment, the school district argued:
[554]*554[Vorwald] cannot claim that he had any right to continued employment, which is what is required to demonstrate a property interest, because the Worker's Compensation Act has usurped the field . . . and has set forth exactly what rights an injured worker has in his employment.
Accordingly, Plaintiffs claim for violation of a due process right must fail where no property interest can be shown under Wisconsin law.
(Emphasis added.) Finally, in its reply brief in support of its motion for summary judgment, the school district concluded:
[G]iven the existence and applicability of the exclusive remedy provisions under the Worker's Compensation Act and alternatively, the Wisconsin Fair Employment Act, the interest which [Vorwald] claims in his job right would not amount to entitlement under the facts of this case. Contrary to [Vorwald,'s] claim that public employment in and of itself creates a property interest in Wisconsin, employment at will is the rule absent a showing of entitlement or some enforceable basis for a continued expectation of employment.
(Emphasis added.) The above excerpts from the circuit court record show that the issue of whether Vorwald had a property interest in his employment was raised and argued by the school district at the circuit court level.
In the school district's brief before the court of appeals, the school district argued:
[Vorwald] has no recognizable property interest in employment under Wisconsin's laws; and that even if he did, the availability of a Worker's Compensation Hearing provides adequate due process . . ..
[555]*555What the [school district is] saying is that the facts of this case are based upon a property interest in employment; that such a property interest is determined by reference to interest created and enforceable under State law; and that there is no interest that is enforceable under State law in this case because of the operation of the Worker's Compensation Act.
The exclusivity provisions of that Act operate to preclude any enforceable property interest in employment, which is a necessary basis for a procedural due process claim.
(Emphasis added.) As the above excerpts illustrate, the school district's argument at the court of appeals focused upon whether the operation of the WCA precluded the existence of an enforceable property interest in employment. However, the arguments address the general issue of whether Vorwald had a property interest in his employment.1 We therefore find that the issue of whether Vorwald had a property interest in his employment was also raised before the court of appeals. Accordingly, the school district is not raising this issue for the first time on appeal, as Vorwald contends. We therefore believe that the court of appeals should have addressed this issue.
The school district argues that Vorwald had no property interest for two reasons: (1) He was an employee at will, and (2) the applicability of the WCA precludes the existence of an enforceable entitlement to [556]*556continued employment. We agree with the school district that Vorwald was an employee at will and, therefore, do not reach the issue of whether the WCA can preclude the existence of an enforceable entitlement to continued employment.
Vorwald asserts that he had a property interest in his employment due to this court's decision in Oddsen v. Board of Fire & Police Comm'rs, 108 Wis. 2d 143, 159, 321 N.W.2d 161 (1982), where we stated that "[pjublic employment is a property right." Vorwald also argues that he had a property interest in his employment due to the board's personnel policy No. 4210,2 which he argues either created a contract under Holloway v. K-Mart Corp., 113 Wis. 2d 143, 334 N.W.2d 570 (Ct. App. 1983), or provided "rules or understandings that secure certain benefits and that support claims of entitlement to those benefits," under Roth, 408 U.S. at 577.
In determining whether Vorwald had a property interest in his employment, we look to state law.
[557]*557Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.
Id.
Under Wisconsin law, employment at will is the rule. Absent civil service regulations or laws, or a contract or collective bargaining agreement, a municipal employee is an employee at will and has no property interest in employment. See Castelaz v. Milwaukee, 94 Wis. 2d 513, 520, 289 N.W.2d 259 (1980); Adamczyk v. Caledonia, 52 Wis. 2d 270, 273-74, 190 N.W.2d 137 (1971); accord Amendola v. Schliewe, 732 F.2d 79, 83 (7th Cir. 1984); compare Hough v. Dane County, 157 Wis. 2d 32, 40-42, 458 N.W.2d 543 (Ct. App. 1990) (statutes may provide an entitlement to employment).
Vorwald's argument that our decision in Oddsen changed the general rule of employment at will for public employees is misplaced. In Oddsen, the Chief of the Milwaukee Police Department directed that two Milwaukee police officers be discharged. Pursuant to sec. 62.50(13), Stats., the Chief filed a complaint with the Board of Fire and Police Commissioners, setting forth the reasons for the discharge. Due to the protection afforded them by statute, the police officers in Oddsen had property interests in their employment. Although we stated in Oddsen that "[p]ublic employment is a property right," Oddsen, 108 Wis. 2d at 159, we should have qualified that statement to say that public employment is a property right for those public employees given tenure by operation of civil service regulations or laws. Oddsen was not meant [558]*558to and in no way altered Wisconsin's long-standing rule of employment at will.
In addition, based on the record before us, we find that the school district's personnel policy No. 4210 did not alter Vorwald's employee-at-will status. In some limited circumstances, employee handbooks and personnel policies can abrogate the employment-at-will relationship. See Ferraro v. Koelsch, 124 Wis. 2d 154, 157-58, 368 N.W.2d 666 (1985); Holloway, 113 Wis. 2d at 146. However, the single personnel policy standing alone in this case, without any evidence indicating that Vorwald and the school district agreed to be bound by the terms of the policy, does not rise to the level of a contract, either implied or otherwise. Therefore, the school district's "common-law right to discharge an employee at any time without cause was not limited by its . self-imposed policies regarding discharge." Holloway, 113 Wis. 2d at 146.
Furthermore, because we find that the personnel policy did not abrogate Vorwald's employee-at-will status, the policy does not rise to the level of "rules or understandings that stem from an independent source such as state law" that are required to "support claims of entitlement" under Roth, 408 U.S. at 577.
Because we find the issue of whether Vorwald had a property interest in his employment controlling in this case, we do not address the remaining issues raised by the parties.
By the Court. — The decision of the court of appeals is reversed.