Jerold J. Mackenzie, Plaintiff-Respondent-Cross-Appellant, v. Miller Brewing Company and Robert L. Smith, Defendants-Appellants-Cross-Respondents, Patricia G. Best, Defendant-Cross-Respondent, 234 Wis. 2d 1

SCHUDSON, J. ¶ 1. After years of litigation, including a three week jury trial, this case comes here with a record of more than ten thousand pages, briefs from the parties totaling more than three hundred pages, and amicus curiae briefs from: the Human Resources Management Association, the Wisconsin Academy of Trial Lawyers, the Wisconsin Employment Lawyers Association, Wisconsin Manufacturers and Commerce, and the United States Equal Employment Opportunity Commission. The issues are many and the arguments, at times, are intricate. In this decision, we concentrate on the most significant, dispositive issues.

We do so, however, only after carefully considering the entire record, all the briefs, the oral arguments to this court, and the supplemental letter briefs following oral argument. I. Introduction — Status On Appeal And Cross-Appeal ¶ 2. The Miller Brewing Company and Robert L. Smith (collectively, "Miller") appeal from the judgment, following a jury trial, awarding Jerold J. Mackenzie more than twenty-five million dollars for what he alleged was intentional misrepresentation leading him to continue his employment at Miller Brewing.

Miller argues that, under established legal principles, as most recently reiterated in Tatge v. Chambers & Owen, Inc., 219 Wis. 2d 99, 579 N.W.2d 217 (1998) — a case decided subsequent to the trial court litigation in the instant case — Mackenzie's claims could not be maintained in tort and, even if they could, Mackenzie failed to prove any of the elements of intentional misrepresentation. Miller also argues that Mackenzie failed to establish any basis for the jury's award of punitive damages and, even if he did, the punitive damages were excessive. ¶ 3.

We need not consider Miller's several substantial arguments challenging the punitive damages because, we conclude, under Tatge, Mackenzie's claim for intentional misrepresentation was not actionable in tort. Further, we conclude that even if Tatge does not preclude Mackenzie's claim as a matter of law, Mackenzie failed to prove: that Miller misrepresented or concealed anything it had a duty to disclose; that Miller intended to deceive him; that he relied on any alleged misrepresentation; or that he was financially damaged as a result of misrepresentation.

Accordingly, on the primary issues on which Miller appeals, we reverse. ¶ 4. Miller also appeals from the judgment against Smith, following the same jury trial, awarding Mackenzie $100,000 for tortious interference with a prospective contract, resulting from what Mackenzie alleged was Smith's effort to prevent him from being promoted. Miller argues that Smith's conduct — commenting on why he believed Mackenzie should not be promoted — was privileged and, further, that regardless of any arguable privilege, Mackenzie failed to prove any interference.

Miller is correct and, therefore, we also reverse the judgment against Smith. ¶ 5. Mackenzie cross-appeals from two trial court orders. He presents several arguments challenging the trial court's conclusion that the jury's award of $1,500,000 punitive damages against Patricia G. Best, a Miller Brewing employee, for tortious interference with his employment relationship, could not be sustained because the jury failed to award compensatory damages against Best.

Mackenzie contends that, given what he views as the undisputed evidence of compensatory damages caused by Best, the trial court should have changed the jury's answer on compensatory damages to conform to the proof. Alternatively, he contends that the inconsistency of the compensatory and punitive damages verdicts requires a new trial on the issue of compensatory damages against Best. ¶ 6.

Additionally, and alternatively, Mackenzie maintains that, given the overlapping evidence supporting his claims against Miller and Best, and under the trial court's jury instruction on punitive damages regarding his claim against Best, the compensatory damages the jury awarded against Miller Brewing and Smith support the punitive damages the jury awarded against Best.

Finally, Mackenzie maintains that even if, generally, punitive damages cannot stand in the absence of compensatory damages, an exception should exist to allow punitive damages here because of the "inherently damaging" nature of a false complaint of sexual harassment. ¶ 7. Concluding that Mackenzie's recoveries against Miller Brewing and Smith must be reversed, we have left him without any compensatory damages against Miller Brewing, Smith, or Best.

Thus, even if Mackenzie's arguments about the interplay of the Miller/Best compensatory/punitive damages verdicts otherwise could have prevailed, the absence of any compensatory damages precludes the punitive damage award against Best. Therefore, we need not address all of Mackenzie's arguments challenging the trial court's decision regarding the punitive damages verdict against Best; some of them simply are not viable given our reversed of the judgments against Miller Brewing and Smith. Nevertheless, a number of Mackenzie's intriguing theories survive and still must be addressed.

For reasons we will explain, we reject them also and, therefore, on this aspect of Mackenzie's cross-appeal, we affirm the dismissal of the claim against Best. ¶ 8. Mackenzie also cross-appeals from the trial court's order, granting partial

summary judgment to Miller, dismissing his claim for wrongful termination. He argues that even though he was an "at-will" employee, Miller Brewing could not terminate him based on allegations of sexual harassment because, he maintains, public policy precludes the dismissal of an employee unless the sexual harassment allegations are substantiated. We conclude, however, that Mackenzie failed to establish that he would fall within the public policy exception for termination of "at-will" employees articulated in Brockmeyer v.

Dun & Bradstreet, 113 Wis. 2d 561, 573, 335 N.W.2d 834 (1983) ("A wrongful discharge is actionable when the termination clearly contravenes the public welfare and gravely violates paramount requirements of public interest. . . . An employee cannot be fired for refusing to violate the constitution or a statute."). Indeed, he failed to even allege that he was "discharged for refusing to violate a constitutional or statutory provision," see Bushko v.

Miller Brewing Co., 134 Wis. 2d 136, 141, 396 N.W.2d 167 (1986), or that he was terminated for complying with a "fundamental and well-defined" legal duty, see Hausman v. St. Croix Care Ctr., 214 Wis. 2d 655, 669, 571 N.W.2d 393 (1997). Thus, partial

summary judgment was appropriate and, therefore, on this aspect of the cross-appeal, we also affirm. II. Factual Background ¶ 9. Although many additional facts will emerge in our discussion of each issue, a brief synopsis will help to frame this appeal and cross-appeal. ¶ 10. Mackenzie worked for Miller Brewing from 1974 until his termination in 1993. Moving up the corporate ladder of what were termed "grade level" positions, he relocated to Milwaukee for a second time in 1982 when he was promoted to a grade level 14 position. In 1987, he held a grade level 14 position under the supervision of Robert Smith. ¶ 11.

In October 1987, Miller Brewing, in the course of reorganizing various aspects of its distribution and sales services, hired William Glickert who became Mackenzie's immediate supervisor and took over many of his responsibilities. As a result, Mackenzie asked Smith whether the reorganization affected his (Mackenzie'

s) grade level. Mackenzie testified that Smith assured him that his grade level 14 status was unaffected by the reorganization. Smith acknowledged that such a conversation may well have occurred and that he would have so advised Mackenzie because, in fact, the reorganization had not altered Mackenzie's grade level, salary, or benefits. ¶ 12. In May 1989, Miller Brewing evaluated the grade levels of hundreds of employees. As a result, certain job classifications were assigned a higher grade level, others a lower one, and still others were left unchanged.

Ultimately, 835 employees were in job classifications assigned lower grade levels. Mackenzie was one of them. He and these other employees were not "downgraded," however, because the reclassifications were prospective, taking effect only upon the hiring of successors. The current employees were "grandfathered," thus retaining their grade levels, salaries and benefits. Mackenzie remained at grade level 14. ¶ 13. In August 1989, Mackenzie received a memorandum informing him of the reclassifications of positions under his supervision.

He did not, however, receive any communication informing him that his position was among the many others that had been downgraded. And he did not ask. Mackenzie testified that he did not inquire whether his position had been reevaluated because he "didn't see any need" to do so. He explained, "[I]f I would have been affected I would think that Mr. Smith would have advised me." ¶ 14. In August 1992, Miller Brewing decided to modify the "grandfathered" status of employees who had remained in job classifications that had been downgraded in 1989.

Thus, in an August 17, 1992 memo, Mackenzie was informed that, effective January 1,1993, he would be reduced to grade level 13 — the grade level to which his position had been reclassified in 1989. Mackenzie, however, despite being downgraded to grade level 13, was to retain his salary and° benefits, except that he no longer would be eligible for the stock option program. ¶ 15.

During the period encompassing Mackenzie's intentional misrepresentation claim — from November 1987 when some of Mackenzie's responsibilities shifted to Glickert, to January 1993 when Mackenzie's status shifted to grade level 13 — two other events occurred that, at trial, came to be intertwined with each other and with the misrepresentation claim. ¶ 16. First, in 1989 and 1990, Mackenzie's secretary, Linda Braun, complained, first to Miller personnel and, later, in an equal rights legal action, that Mackenzie had sexually harassed her.

Mackenzie testified that he denied most of Braun's allegations and, when informed that Miller Brewing had settled Braun's claim for $16,000, said: "I'm sorry you settled. I didn't do anything." Smith, however, testified that Mackenzie "admitted that his behavior had been inappropriate." And Smith testified that he warned Mackenzie that any repetition of such conduct would result in termination; Mackenzie testified that he did not recall any such warning. ¶ 17.

Second, in October 1992, a Miller Brewing task force studying the performance of its distributors recommended the creation of a new department in the sales division, the establishment of which would have substantially reduced Smith's responsibilities. When Smith learned that Mackenzie, who had served on the task force, was being considered for the position of director of the new department, he advised Tom Koeh-ler, Vice-President of Sales, and Tom Cardella, the leader of the task force, of what he deemed to be Mackenzie's management deficiencies.

Smith recommended that the new directorship go to another individual — the one who ultimately received the appointment. ¶ 18. Finally, later, a third event, ultimately leading to Mackenzie's termination, played prominently in the trial and, even more prominently, in the media reports of what came to be known as "the Seinfeld case." In March 1993, Patricia Best, a Miller distributor services manager who had previously been under Mackenzie's supervision, reported that Mackenzie had engaged her in inappropriate conversations about an episode of the Seinfeld television show.

She said she was offended when Mackenzie commented on and later continued to discuss the show's thinly veiled references to female sexual anatomy. Miller Brewing investigated her report and, shortly thereafter, fired Mackenzie for "poor management judgment." ¶ 19.

After he was fired, Mackenzie brought four claims: (1) intentional misrepresentation against Miller Brewing and Smith for failing to inform him that his position had been downgraded, and for representing that his grade level had not been affected by the 1987 reorganization; (2) tortious interference with a prospective contract against Smith for opposing his promotion to the new directorship; (3) tortious interference with contract against Best for "fraudulently misrepresenting" feeling harassed by their communication regarding the Seinfeld episode; and (4) wrongful termination, in violation of public policy, against Miller Brewing for firing him in response to Best's report. ¶ 20.

Granting Miller Brewing partial

summary judgment, the trial court dismissed with prejudice Mackenzie's wrongful termination claim.

The other claims, however, proceeded to trial and the jury returned verdicts: (1) finding that Miller Brewing and Smith intentionally made misrepresentations to Mackenzie, and awarding, against Miller Brewing, $6,501,500 compensatory and $18,000,000 punitive damages, and against Smith, $1500 compensatory and $500,000 punitive damages (later reduced by the trial court to $100,000, which Mackenzie accepted); (2) finding that Smith intentionally interfered with Mackenzie's promotion, and awarding $100,000 compensatory damages; and (3) finding that Best intentionally interfered with Mackenzie's contract, and awarding $0 compensatory damages and $1,500,000 punitive damages (later set aside by the trial court).

MILLER S APPEAL I. Intentional Misrepresentation A. Tatge AND THE DUTY TO DISCLOSE ¶ 21. Mackenzie's intentional misrepresentation claim presented two theories: (1) that in 1987 Miller misinformed him that the reorganization did not affect his status; and (2) that in 1989 Miller failed to inform him that his position had been downgraded. Whether a cause of action flowing from an employment relationship is actionable in tort for misrepresentation presents a question of law. See Tatge, 219 Wis. 2d at 105. We decide questions of law independently of the trial court's determinations. See Gloudeman v. City of St.

Francis, 143 Wis. 2d 780, 784, 422 N.W.2d 864 (Ct. App. 1988). ¶ 22. Miller, relying on Tatge, first argues that "[a]s a matter of law, neither Miller [Brewing Company] nor Smith can be liable for intentional misrepresentation for the alleged 1987 misrepresentation as to Mackenzie's job status or for not disclosing to Mackenzie that the grade level of his job classification had been changed in 1989." Miller is correct. ¶ 23. In Tatge, Tatge, an "at-will" employee, had objected to the non-disclosure/non-compete provisions of a "management agreement" that modified his job duties and compensation arrangements.

See Tatge, 219 Wis. 2d at 102-03. He refused to sign the agreement only after being assured that his refusal would not affect his employment. See id. at 103. Ultimately, however, he was fired for refusing to sign. See id. He brought several claims against his employer and, in a jury trial, prevailed on his tort claim of negligent misrepresentation. See id. at 104-05. On post-verdict motions, however, the trial court dismissed his claim. See id. at 105. Tatge appealed, challenging not only the dismissal of the negligent misrepresentation claim, but also the trial court's dismissal, on

summary judgment, of his wrongful discharge claim. See id. at 101, 105. This court affirmed, concluding that "a breach of an employment contract is not actionable in tort." Id. at 105 (quoting Tatge v. Chambers & Owen, Inc., 210 Wis. 2d 51, 53, 565 N.W.2d 150 (Ct. App. 1997)). ¶ 24. Appealing this court's decision, Tatge contended that the supreme court should "address his misrepresentation claim under tort law — not as a wrongful discharge or breach of contract claim under contract law." Id. at 107.

As the supreme court explained, Tatge "advocate[d] this approach by arguing that employers have an independent duty to their employees to refrain from misrepresentation." Id. The supreme court, however, refused to take that approach. Rejecting Tatge's argument, the court declared, "We decline to give our blessing to such an irreverent marriage of tort and contract law." Id. The court reiterated that there " 'must be a duty existing independently of the performance of the contract for a cause of action in tort to exist.'" Id. (quoting Landwehr v.

Citizens Trust Co., 110 Wis. 2d 716, 723, 329 N.W.2d 411 (1983)). ¶ 25. Therefore, as Miller argues, it would seem that Tatge precludes Mackenzie's intentional misrepresentation claim. After all, the supreme court explicitly rejected the proposition that, exclusive of the. employment contract, "employers have an independent duty to their employees to refrain from misrepresentation." Id. Mackenzie argues, however, that the supreme court's rejection of that proposition was based on the fact that Tatge's tort claim of negligent misrepresentation was connected to his contract claim of wrongful termination.

He points out that, in Tatge, the supreme court stated that, under Brockmeyer, "any claim which is dependent upon a wrongful termination from at-will employment is not actionable in tort." Tatge, 219 Wis. 2d at 108 n.3 (emphasis added). Moreover, in Tatge, the supreme court declared, "Because it is tied inextricably to his termination from employment, [the plaintiffs] misrepresentation claim was properly dismissed by the circuit court." Id. at 108 (emphasis added).

And, finally, the supreme court distinguished a case in which "the alleged misrepresentation was not dependent upon a breach of [the employees'] employment contract." Id. at 109 n.5. ¶ 26. Thus, Mackenzie contends, Tatge does not preclude his intentional misrepresentation claim. After all, he reminds us, his tort claim derives not from breach of contract/employment termination, but from employment continuation.

So, he argues, Tatge, by repeatedly emphasizing the inextricable connection between Tatge's tort and contract claims, offers implicit support for the proposition that where tort and contract claims are separate, both survive. We conclude, however, that although these Tatge passages, standing alone, could support Mackenzie's theory, when read in full context they do not save his claim. We hold that Tatge precludes an employee's tort claim against an employer for alleged intentional misrepresentation that allegedly induced continuation of employment. ¶27.

Although the supreme court emphasized that, in Tatge, the misrepresentation was connected to the plaintiffs termination, it did not otherwise qualify its explicit rejection of the proposition that "employers have an independent duty to their employees to refrain from misrepresentation." Id. at 107. Emphatically, and almost as if to anticipate Mackenzie's argument, the supreme court clarified, "We do not mean to suggest that litigants may circumvent the holding of this court simply by pleading damages which somehow do not arise solely from one's termination of employment." Id. at 108 n.4.

And although, obviously, employment termination is distinguishable from employment continuation, each tort claim connects to an employment contract. That is, whether, as in Tatge, an employee is claiming that negligent misrepresentation caused the termination of employment, or, as in the instant case, that intentional misrepresentation caused the continuation of employment, each "misrepresentation claim finds its lifeline in the improper performance of an employment contract." Id. at 107. ¶ 28.

Thus, while in some respects Mackenzie's claim for intentional misrepresentation may be viewed independently of his claims for wrongful discharge, tor-tious interference with prospective contract, and tortious interference with contract, the independence of his misrepresentation claim is not as absolute as Mackenzie suggests. In fact, in the trial court, Miller, not Mackenzie, vigorously argued for severance of the three claims surviving

summary judgment and, on appeal, continues to argue that the trial court improperly joined what actually were divisible claims. Ironically, in the trial court, Mackenzie successfully responded, in effect, that the claims should be joined because of their common facts and overlapping themes. Indeed, throughout the trial, and in closing argument, counsel for Mackenzie not only blended the evidence on the three surviving claims, but repeatedly and emphatically connected those claims to Mackenzie's termination. Despite the

summary judgment dismissal of the wrongful termination claim, Mackenzie's counsel continued to pursue the connections among the remaining claims and the termination. Thus, as actually litigated, all Mackenzie's claims breathed through only one "lifeline" — Miller's alleged "improper performance of [his] employment contract." See id. ¶ 29. Therefore, reduced to its essence, the question simply is whether Miller, aside from any contractual obligations it may have had, also had "an independent duty ... to refrain from misrepresentation" that induced Mackenzie to continue employment. See id.

We conclude that, under Tatge, the answer is no. ¶ 30.- Mackenzie, citing numerous cases, maintains that courts have allowed claims for fraudulent inducement to continue employment. Miller responds that "[e]very case recognizing a tort claim for misrepresentation against an employer and cited by Mackenzie is premised on misrepresentations made to induce acceptance, rather than continuance, of employment." Miller is incorrect. Although some of the cases Mackenzie cited considered circumstances involving inducements to accept employment, most dealt with circumstances involving inducements to continue employment.

« ¶ 31. Still, a review of the numerous cases cited by Mackenzie, Miller, and the amicus briefs reveals that while some courts have recognized the tort Mackenzie proposes, others have declined to do so. Some reason that, absent a special, confidential or fiduciary employer-employee relationship, employers have no duty, outside their contractual obligations, to disclose information to at-will employees that could conceivably affect the employees' decisions to continue employment. See Piekarski v. Home Owners Sav.

Bank, 956 F.2d 1484, 1495 (8th Cir. 1992) ("employer has no duty to disclose to an employee that he has placed items in his [personnel] file"); Sabet v. Eastern Va. Med. Auth., 775 F.2d 1266, 1270 (4th Cir. 1985) ("[S]ilence cannot give rise to liability for fraud in the absence of a duty of disclosure."); Wilson v. Sysco Food Servs. of Dallas, Inc., 940 F. Supp. 1003, 1014 (N.D. Tex. 1996) ("In the absence of an agreement to disclose, a duty to disclose arises only where there is some special relationship between the parties, such as a fiduciary or confidential relationship.");Lehner v. Crane Co., 448 F.

Supp. 1127, 1131 (E.D. Pa. 1978) ("[A]n employer-employee relationship does not, in and of itself, give rise to a fiduciary relationship from which a duty to disclose could be derived."); see also White v. National Steel Corp., 938 F.2d 474, 490 (4th Cir. 1991) ("[A]ny court-imposed affirmative duty to inform employees of conditions of employment . . . may lead to diminution of West Virginia's at will doctrine."); Holloway v. Doug Fisher, Inc., 865 F. Supp. 412, 421 (E.D.

Mich. 1994) (plaintiff failed to establish that employer-employee relationship constituted "confidential relationship" giving rise to duty to disclose); Berda v. CBS Inc., 800 F. Supp. 1272, 1278 (W.D. Pa. 1992) (employer had no duty to disclose to employees "significant corporate plans," including possibility of layoffs). For reasons we will explain, we find more persuasive the reasoning reflected in those decisions declining to recognize the tort Mackenzie proposes. ¶ 32.

The fact that Wisconsin courts have not recognized the duty' to disclose on which Mackenzie premises his intentional misrepresentation claim does not mean that we could not do so. After all, if Tatge does not preclude Mackenzie's misrepresentation theory, then the policy rationale he offers, if meritorious, could bring legal life to his claim. See Ollerman v. O'Rourke Co., 94 Wis. 2d 17, 30, 288 N.W.2d 95 (1980) ("Courts have departed from or relaxed the 'no duty to disclose' rule by carving out exceptions to the rule and by refusing to adhere to the rule when it works an injustice.").

We conclude, however, that while at first glance Mackenzie's policy arguments sail smoothly, they ultimately crash on the reef of reality. B. Duty to disclose — "a policy determination" ¶ 33. No tort liability arises from a failure to disclose information absent a duty to disclose. See Lecic v.

Lane Co., 104 Wis. 2d 592, 604, 312 N.W.2d 773 (1981) ("The general rule is that silence, a failure to disclose a fact, is not misrepresentation unless the nondisclosing party has a duty to disclose that fact."); see also Ollerman, 94 Wis. 2d at 26 (no tort liability arises from failure to disclose, absent duty to disclose). Whether a duty to disclose exists presents a question of law. See Ollerman, 94 Wis. 2d at 27. ¶ 34. "[W]hen a court resolves a question of legal duty the court is making a policy determination." Id. at 27.

Quoting Dean Prosser, the supreme court explained: "In the decision whether or not there is a duty, many factors interplay: The hand of history, oür ideas of morals and justice, the convenience of administration of the rule, and our social ideas as to where the loss should fall. In the end the court will decide whether there is a duty on the basis of the mores of the community, 'always keeping in mind the fact that we endeavor to make a rule in each case that will be practical and in keeping with the general understanding of mankind.'" Id. at 28 (quoted sources omitted).

"Whether one has a duty to disclose a fact in a particular set of circumstances is essentially a policy decision, and it is, therefore, properly decided as a question of law." Hennig v. Ahearn, 230 Wis. 2d 149, 167, 601 N.W.2d 14 (Ct. App. 1999). Thus, resolving the "question of legal duty" in the instant case, we must examine Tatge not in isolation, but in consideration of this "interplay" of law and policy. ¶ 35. Mackenzie, the Wisconsin Academy of Trial Lawyers, and the Wisconsin Employment Lawyers Association warn against any preclusion of misrepresentation claims.

Understandably, they resist any rule of law that would seem to allow anything less than open and honest communication between employers and employees. We acknowledge their legitimate concerns. And yet, while it may seem counterintuitive to ever foreclose a claim for misrepresentation, we take pains to explain why employers dare not read this decision as permission to deceive their employees, and why, in this case, the preclusion of Mackenzie's tort claim for misrepresentation is consistent with sound public policy. ¶ 36.

First, despite the preclusion of such tort claims, most misrepresentation will meet its match. Depending on the circumstances, criminal prosecutions and contract claims may be possible. Moreover, market forces remain powerful and, in some ways, provide protective deterrents to deceit. After all, employers who mislead their employees risk embarrassing exposure that, ultimately, will reduce their reputations and profits. Clear economic analysis should lead employers to understand that misrepresentation will motivate their best employees to resign, and jeopardize their ability to attract qualified personnel. ¶ 37.

Second, because of the preclusion of such tort claims, the at-will employment relationship will retain flexibility that, in a free-market economy, provides critical advantages to both employers and employees. Emphasizing the employers' concerns, Miller explains: Employers cannot possibly anticipate all the employment-related information that an employee may rely on in deciding to continue employment; it would be extraordinarily unfair to employers to create a duty to disclose, where this element of "reliance" arises with hindsight, after the employee has been discharged.

Creating a duty to disclose would cause massive disruption in the workplace, spawning claims with no reasonable stopping point — there are a whole myriad of things that employees could argue should have been disclosed, such as a failed merger, acquisition attempts, falling sales, the CEO's health, and the like. The list is virtually endless and to impose a duty to disclose on employers would be an intolerable burden. But employers are not the only ones who have an interest in flexible, unencumbered at-will relationships.

As Wisconsin Manufacturers and Commerce argues in its amicus curiae brief, "notions of fundamental fairness" would require an employer-employee duty to disclose to become "a two-way street": [W]ould not employees be under a duty to disclose to employers whenever they were considering quitting, or were interviewing for other positions? Had it known that an employee was considering leaving, an employer often would have taken other action, such as shifting job duties. Under such circumstances, are employees liable to their employers? ¶ 38.

Mackenzie attempts to deflect Miller's predictions of "massive disruption in the workplace" and "myriad of things that employees could argue should have been disclosed." He trims his duty to disclose theory to "the narrow proposition that when an employee asks an employer for information which the employer knows may affect the employee's decision to exercise his at-will freedom to quit, the employer conceals the information from the employee at its peril." Interestingly enough, however, the impracticality — indeed, the virtual impossibility — of imposing a duty to disclose is apparent from the very scenario Mackenzie attempted to establish in this case. ¶ 39.

After all, if we accept Mackenzie's "narrow proposition": (1) the "employer" (that is, the actual person an employee asks for information) would have to determine which answers to a subordinate's many inquiries "may affect the employee's decision to exercise his at-will freedom to quit"; (2) the "employer" would have to remember those inquiries and answers and be responsible for updating the answers for the duration of the employee's employment; and (3) the "employer," if transferred, retired, or terminated, would have to record or pass on that information to any successor who, in turn, would be responsible for updating the employee.

No employee could reasonably expect such continuing disclosure. See Hennig, 230 Wis. 2d at 166 ("[U]nder the [Restatement (Second) of Torts § 551(2)(e) (1977)] approach adopted in Ollerman, the crucial element in determining whether a duty of disclosure exists is whether the mistaken party would reasonably expect disclosure.'') (emphasis added).

Thus, Mackenzie's "narrow proposition" does not begin to account for reality — particularly in large businesses, with hundreds or even thousands of at-will employees, and with employer-employee communication encompassing countless subjects affecting an employee's decision to continue employment. ¶. 40. Mackenzie maintains, nonetheless, that at-will employment relationships thrive in a free market economy only when both employer and employee make their employment decisions based on accurate and complete information.

Once again, with support from both the Wisconsin Academy of Trial Lawyers and the Wisconsin Employment Lawyers Association, he proclaims the value of honesty in employer-employee communication. We echo that proclamation. And yet, once again, as counterintuitive as any compromise of candor may seem, the analysis of the duty to disclose is not as simple as Mackenzie suggests. ¶ 41.

For any number of valid reasons, employees, in furtherance of their personal or professional interests, may choose to conceal information — illness, pregnancy, disability, job search — from their employers even though their employers may suffer as a result. And employers, for any number of valid reasons, may choose to conceal important information from employees.

As the Human Resources Management Association illustrates in its amicus brief: [Alssume a company that is in an extremely dire financial position determines that it will have to layoff [sic] approximately twenty percent of its workforce in order to remain a viable concern. At the same time, the company is very close to securing a large amount of new business that will help ensure the company's continued viability. Management believes that without the new business, the company would cease to exist and all of its employees would lose their jobs.

Management determines that announcing the layoff at that particular time could jeopardize its ability to secure the new business. It decides to wait a couple of months before it announces the layoff decision to ensure that the layoff announcement will not jeopardize the business transaction. Management's decision helps to ensure its continued operation and the continued employment of a majority of its workforce.

And, as Wisconsin Manufacturers and Commerce points out, "information which might be of greatest interest to an employer's competitors would also be that which might arguably be considered material to its employees' decision to continue to work for the employer {e.g., financial reversals)." Thus, unquestionably, while honesty is a virtue rewarding both employers and employees, the nature, timing, and duty of disclosure remain complicated. ¶ 42. We do not suggest that courts will countenance an employer's misrepresentations regardless of the contract or circumstances.

We recognize that deceit may set deadly traps, and we are loath to let innocent victims be snared. But the resulting legal action — whether for breach or some other violation of an employment contract — lies not in tort, but in contract. See Tatge, 219 Wis. 2d at 105-09; see also White, 938 F.2d at 491 ("Broken promises are the substance of contract law and are not to be shoehorned into an ill-fitting suit of fraud."). The distinction is more than academic. At the very least, available remedies and potential damages turn on whether the misrepresentation claim is recognized in contract or in tort. See Dvorak v.

Pluswood Wis., Inc., 121 Wis. 2d 218, 220-21, 358 N.W.2d 544 (Ct. App. 1984) (breach of employment contract is actionable in contract, not tort; therefore, backpay and reinstatement, not punitive damages, are recoverable). ¶ 43. Accordingly, we conclude that the creation of an employer's duty to disclose information potentially affecting an employee's decision to continue employment would undermine sound public policy. It would reduce the at-will employment flexibility that is so valuable to both employers and employees. It would be virtually impossible to implement and enforce.

It would leave both employers and employees forever guessing at the limits of their responsibility and potential liability. See generally Kelli T-G. v. Charland, 198 Wis. 2d 123, 130, 542 N.W.2d 175 (Ct. App. 1995) ("virtual impossibility of defining a sensible starting or stopping point" precludes tort cause of action on public policy grounds). C. Mackenzie's evidence ¶ 44. Miller also argues that Mackenzie failed to prove any of the elements of intentional misrepresentation. Our conclusion, under Tatge, could obviate the need to address this argument. Here, however, while we have rejected Mackenzie's Tatge

interpretation, we also have acknowledged the three passages in Tatge that, arguably, may allow more latitude than we have recognized, as well as the case law that does recognize the tort of fraudulent inducement to continue employment. Thus, we go on to explain that even if Mackenzie's misrepresentation claim, by virtue of being independent of his wrongful discharge claim, were not precluded by Tatge, it still would fail — for lack of evidence of any of the elements of intentional misrepresentation. ¶ 45.

The supreme court has articulated the elements of intentional misrepresentation: "[F]irst, there must be a false representation of fact; second, it must be made with intent to defraud and for the purpose of inducing another to act upon it; third, such other person must rely on it and thereby be induced to act, to his own injury or damage." Lundin v. Shimanski, 124 Wis. 2d 175, 184, 368 N.W.2d 676 (1985). ¶ 46. "When reviewing jury verdicts on appeal, we view the evidence most favorable to the verdict and affirm if there is any credible evidence upon which the jury could have based its decision." /&.

Deference to the jury's verdict is even greater when it has been approved by the trial court. See Staehler v. Beuthin, 206 Wis. 2d 610, 617, 557 N.W.2d 487 (Ct. App. 1996). Here, after a thorough review of the parties' briefs and their specific record references, after extensive questioning of counsel at oral argument, and after a painstaking review of the trial record (based on the oral arguments and supplemental briefs), we conclude that Mackenzie failed to present evidence establishing any of the elements of intentional misrepresentation. ¶ 47.

As we- have explained, Mackenzie's theory is that, in 1987, Smith misinformed him that the reorganization that had occurred after Glickert was hired did not affect his job status and that, in 1989, Smith failed to inform him that his position had been downgraded. At oral argument, Mackenzie's counsel clarified that even though Mackenzie had not proven that Smith misinformed him of anything in 1987, and even though Mackenzie never asked Smith or anyone else about his job status in 1989, the jury still could have "believed":

(1) Mackenzie's position had been downgraded in 1987;

(2) Smith knew that, and misinformed Mackenzie in 1987; and/or (3) even if Mackenzie's position had not been downgraded in 1987, and even if Smith had not misinformed him in 1987, Smith intentionally deceived him, in 1989, by not informing him that his position had been downgraded in 1989. ¶ 48. Throughout Mackenzie's questioning of trial witnesses, closing arguments, briefs, and oral arguments to this court, his theory, tenuous at best, slips and slides between the events of 1987 and 1989.

Although one might expect that such a lengthy trial transcript would reveal countless passages from which Mackenzie's purported proof would emerge and, therefore, that an earnest review of the record would inevitably lead to evidence that, even if slight, was sufficient, such is not the case. Indeed, as implicitly conceded in his briefs, and explicitly conceded at oral argument, Mackenzie can point to only a few portions of testimony that give even a hint of support to his theory. And even those fail under careful analysis.

Like a shaky swingdancer searching for the right step, Mackenzie stumbles between the events of 1987 and 1989 and, ultimately, provides no evidence proving intentional misrepresentation. 1. False representation of fact ¶ 49. The record provides absolutely no evidence that Mackenzie's position was downgraded in 1987. It establishes only that, in 1987, Mackenzie's responsibilities were affected after Glickert was hired. Mackenzie testified that, in 1987, he asked Smith: "Does [the reorganization] affect my Grade Level? It's half my area.

Is this going to get me downgraded?" Smith, Mackenzie testified, answered "no," that "it's not going to affect you at all." ¶ 50. The only evidence on which Mackenzie's appellate brief relies to suggest that Smith's response was false is Smith's answer to a written interrogatory, utilized by Mackenzie's counsel in examining Smith at trial. Smith acknowledged, at trial, that in answering the interrogatory, he stated that "at the time Glickert joined Miller," he (Smith) "informed Mr.

Mackenzie that his position had been grandfathered," thus implying that the downgrading of Mackenzie's position actually occurred in 1987. Mackenzie's appellate brief, however, neglects to quote Smith's undisputed trial testimony surrounding that exchange, clarifying that, in answering the interrogatory, he simply had been mistaken about the chronology; he had mixed up the events of 1987, "when Glickert came to Miller," and 1989, when "[t]he grandfathering issue came into play." ¶ 51.

The only other passage on which Mackenzie relies is, at best, utterly ambiguous and, under careful analysis, it provides absolutely no support for Mackenzie's theory. Referring to a 1992 conversation in which Smith informed him that his position had been downgraded years before, Mackenzie testified: A: Mr. Smith told me that this [downgrading] was due to when Mr. Glickert came in to his area, and they transferred a large number of my people to his responsibility. That that caused my rating to be downgraded. Q: And that would have been what year?

A: 1987. (Emphasis added.) What does that italicized "that" refer to — when Glickert came into Smith's area; when Mackenzie's rating was downgraded? Contextually and grammatically, there seems to be no way to tell. But logically, and most importantly, nothing in this portion of Mackenzie's testimony, or any other evidence, connects the italicized "that" to anything Smith did or said to misrepresent or conceal anything. ¶ 52. Indeed, the only logical reading of this passage precludes any connection to what Smith did or said and, therefore, counters Mackenzie's theory.

After all, in answering, "1987," Mackenzie obviously was not suggesting that Smith informed him in 1987 of the downgrading; Mackenzie's theory was that Smith failed to do so. And if, in answering, "1987," all Mackenzie was saying was that that was the year Glickert came into Smith's area, the testimony would be of no consequence; the year of Glickert's arrival was never in dispute.

Thus, this apparently ambiguous testimony, logically analyzed, is either Mackenzie's inconsequential statement of Glickert's year of arrival, or nothing more than Mackenzie's opinion, supported by no evidence, that he had been downgraded in 1987. ¶ 53. Notably, nothing else, anywhere in the trial record, established that any downgrading occurred until 1989 when, it is undisputed, Mackenzie's position and those of hundreds of other employees were downgraded. Indeed, Mackenzie testified that he "learned that [his position] had been reevaluated in 1989, and that Mr.

Smith had signed off on it in 1989 that it would be a 13 not a 14." Miller Brewing records confirmed that Mackenzie's position was downgraded, effective May 17, 1989. In closing argument, Mackenzie's counsel referred to "1989, when [Mackenzie] was downgraded on the books to a 13," and to Mackenzie being "grandfathered in '89." And on appeal, Mackenzie concedes that "the downgrade . . . was formalized" not in 1987, but in 1989, and that "[i]ndisputably Smith knew Mackenzie was downgraded in 1989." ¶ 54.

Mackenzie fully concedes that, in 1989, he never asked Smith or anyone else whether his position had been downgraded as a result of the reevaluation of hundreds of positions. Noting that he was asked to advise his subordinates of their downgrading, Mackenzie never suggests that Miller was attempting to conceal the downgrading, generally, or that, had he inquired, Miller would have denied him the information, specifically. See McCoy v. Spelman Mem'l Hosp., 845 S.W.2d 727, 732 (Mo. Ct.

App. 1993) (regarding employee's fraud allegation, employer had no duty to inform employee of reasonably ascertainable facts concerning his employment) (emphasis added); see also Null v.K & P Precast, Inc., 882 S.W.2d 705, 708 (Mo. Ct. App. 1994). Mackenzie also acknowledges that, even after the downgrading of his position in 1989, he was grandfathered so that he retained his grade level, salary and all benefits until, as he was notified in an August 1992 memo, effective January 1, 1993, he would be reduced to grade level 13 and would lose his eligibility for stock options.

Thus, according to the evidence, Smith's answer to Mackenzie in 1987 — that while Mackenzie's responsibilities had been affected, his grade level status was unaffected by the reorganization — was true in 1987 and remained true in 1989, even after the downgrading of Mackenzie's position. ¶ 55. Therefore, at most, Mackenzie may be correct in believing that, in 1989, his position, among others, may have been downgraded due, at least in part, to the altered responsibilities brought about by the reorganization of 1987.

But that simply does not constitute any evidence that Smith lied to him in 1987, or concealed anything from him in 1989. See Chitwood v. A.O. Smith Harvestore Prods., Inc., 170 Wis. 2d 622, 631, 489 N.W.2d 697 (Ct. App. 1992) (Regarding intentional misrepresentation, " [generally, the false representation must relate to present or preexisting facts and cannot be merely unfulfilled promises or statements of future events."). 2. Intent to deceive ¶ 56.

Even assuming Smith misinformed him in 1987 (that the reorganization did not affect his job status) or failed to inform him in 1989 (that his position had been downgraded), Mackenzie offered no evidence that Smith or anyone else at Miller Brewing did so in an effort to induce him to continue employment.

In fact, in closing argument, Mackenzie's counsel contended that while Smith "made a horrible mistake" in his communication with and treatment of Mackenzie, he was a "decent enough fella." As Miller argues: There was no evidence that Smith or Miller believed, or had reason to believe, that Mackenzie ever considered leaving Miller or needed an inducement to remain. To the contrary, Mackenzie admits that at no time did he consider leaving Miller, including after he admittedly learned of the grade level change.

There also was no evidence that Smith or Miller believed, or had reason to believe, that Mackenzie would choose to leave Miller if he knew that his successor would be a grade level 13, rather than a grade level 14. Mackenzie maintains, however, that "the jury could draw the common sense conclusion that a demotion would prompt a reasonable person in Mackenzie's position with his ambition and talents, to look for work elsewhere, and that Smith feared this." But Mackenzie provides no evidentiary basis for this fear.

In fact, as we will explain, a "common sense" assessment of the evidence refutes even the most speculative sense that Miller intended to deceive Mackenzie. ¶ 57. Mackenzie offered evidence establishing that he was a valuable employee with exceptional computer skills and, therefore, that Miller Brewing certainly would have wanted his continued employment. But his evidence also belies the notion that Miller, starting in 1987 and continuing through 1989 and until August 1992, somehow managed to make a series of intentional misrepresentations in order to induce Mackenzie to stay. The contradictions are obvious:

(1) On the one hand, Mackenzie maintains that he was virtually irreplaceable; on the other hand, he contends that Miller downgraded his position (and grandfathered him, thus gaining no financial benefit from the downgrading as long as he remained in his position), despite knowing that if he found out his position had been downgraded, he would leave. (2) Ón the one hand, Mackenzie maintains that the downgrading was the "kiss of death" that destroyed his potential for advancement — at Miller or elsewhere; on the other hand he contends that, despite the downgrading, he was in line for a significant promotion, torpedoed only by Smith's opposition.

(3) On the one hand, Mackenzie maintains that Miller singled him out, from among hundreds of downgraded employees, in order to deceptively induce him to continue employment; on the other hand, as his attorney ultimately argued to the jury, "[t]hey were out to get this guy," subsequently terminating him based on unsubstantiated complaints of sexual harassment. "Common sense," based on the evidence, confirms that Mackenzie failed to prove any intent to deceive. 3. Reliance ¶ 58. Mackenzie offered no evidence that he relied, to his detriment, on any misrepresentation.

His theory, simply, was that in 1987 or 1989, had he known his position had been downgraded, he could have sought other employment but, by 1992, having aged and occupied a downgraded position for several years, he was less marketable. Mackenzie, however, never stated that he would have sought other employment. He testified that he "never considered leaving Miller Brewing Company for another job." He offered no evidence of a job opportunity ignored or an offer declined due to his misconception of his grade level status. ¶ 59.

To prevail on his intentional misrepresentation claim, Mackenzie would have had to have shown that he justifiably relied on a misrepresentation of fact. See Williams v. Rank & Son Buick, Inc., 44 Wis. 2d 239, 245-46, 170 N.W.2d 807 (1969). Once again, Mackenzie failed to prove anything; his evidence was speculative at best. Speculation is not a proper basis for a jury decision. See Foseid v. State Bank of Cross Plains, 197 Wis. 2d 772, 791, 541 N.W.2d 203 (Ct. App. 1995) (verdict cannot be based on "conjecture and speculation"); Cudd v. Crownhart, 122 Wis. 2d 656, 662, 364 N.W.2d 158 (Ct.

App. 1985) (verdict cannot be based on "mere speculation"). 4. Damages ¶ 60. Mackenzie offered no evidence of any other employment he might have obtained between 1987 and 1993. In fact, his damages evidence consisted entirely of what he summarized in a trial exhibit titled, "Lost Salary and Benefits Due to Termination. " (Emphasis added.) He offered nothing providing any causal connection between Miller's alleged misrepresentations and the termination damages he introduced at trial. ¶ 61.

Thus, at oral argument, Miller pounded away at Mackenzie's failure to prove misrepresentation damages — the difference between what Mackenzie earned at Miller Brewing between 1987 or 1989 and 1993, and what he would have earned elsewhere during the same period. At oral argument, Mackenzie barely responded.

Even more telling, in his supplemental letter brief to this court, Mackenzie, while first attempting to tie termination damages to his misrepresentation claim, ultimately contended only that ”[t]he jury reasonably could have inferred that but for Miller's deceit, [he] would have secured employment elsewhere at a marketable age and received wages and benefits comparable to those provided by Miller." (Emphasis added.) Obviously, if what Mackenzie would have received elsewhere would have been comparable to what he actually did receive at Miller Brewing, he suffered no financial loss prior to his termination.

Essentially, therefore, Mackenzie has offered nothing to counter Miller's contention that he proved no misrepresentation damages. See Charolais Breeding Ranches, Ltd. v. FPC Sec. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979) (unrefuted arguments deemed admitted). II. Tortious Interference With Prospective Contract ¶ 62. Regarding Mackenzie's second cause of action, Miller argues that "Smith cannot be liable for tortious interference with Mackenzie's hoped for promotion because there was no proof of interference," and that "Smith's conduct was privileged as a matter of law." Miller is correct. ¶ 63.

"There can be tort liability for interference with a contract terminable at will," id. at 104, and our courts do recognize "a cause of action for the intentional interference with a prospective contractual relation," Cudd, 122 Wis. 2d at 657-58. Interference alone, however, does not establish the tort; the interference must be "improper." See Liebe v. City Fin. Co., 98 Wis. 2d 10, 15, 295 N.W.2d 16 (Ct. App. 1980).

Further, "the transmission of truthful information is privileged, does not constitute improper interference with a contract, and cannot subject one to liability for tortious interference with a contract" or prospective contract. See id. at 13. ¶ 64. Generally, in the context of discussing whether one is "privileged" to communicate information that interferes with a prospective contract, we "substitute[ ] a concept of 'propriety' for privilege and provide[ ] that 'one who "intentionally and improperly" interferes with the performance of a [prospective] contract is liable.'" See Hale v. Stoughton Hosp.

Ass'n, 126 Wis. 2d 267, 281, 376 N.W.2d 89 (Ct. App. 1985) (quoted source omitted). Thus, in this opinion, in evaluating Miller's claim of "privilege," we write in terms of whether Smith's conduct was proper or improper. Determining whether interference is "improper," we consider: (

a) The nature of the actor's conduct; (

b) The actor's motive; (

c) The interests of the other with which the actor's conduct interferes; (

d) The interest sought to be advanced by the actor; (

e) The social interests in protecting the freedom of action of the actor and the contractual interest of the other; (

f) The proximity or remoteness of the actor's conduct to the interference; and (

g) The relations between the parties. Cudd, 122 Wis. 2d at 660-61. Here, we focus on these seven criteria by logically arranging them in two groups: (

A) Smith's conduct, motive, intent, and relation to Mackenzie, and the proximity of Smith's conduct to the decision not to promote Mackenzie; and (

B) Mackenzie's interest in being promoted, and the social interests in protecting the freedom of action of Smith and the contractual interest of Mackenzie. We conclude that Mackenzie failed to provide any evidence of improper conduct that would constitute tortious interference with his prospective contract. A. Smith's conduct, motive, intent, and relation to Mackenzie, and the proximity of Smith's conduct to THE DECISION NOT TO PROMOTE MACKENZIE ¶ 65.

In 1992, Mackenzie served on a Miller Brewing task force which, he explained, was established "to evaluate the efficiency of Miller's distributdrs, and see if they could determine ways of increasing [their] performance." Tom Cardella headed the task force and presented its recommendations to Miller's president and executive steering committee, comprised of three vice-presidents: Dick Strup, Tom Koehler, and Robert Smith. Among other things, the task force proposed a new department, the creation of which would transfer personnel and responsibilities from Smith to Koehler.

Koehler, with the assistance of Robert Schmitz, Personnel Services Manager, had primary responsibility for selecting the director of the new department. ¶ 66. Smith was upset — with the proposed shift of his personnel and responsibilities to the new department and, he emphasized, with the fact that he had not been consulted before the task force presented its recommendations. Additionally, Smith disagreed with the task force recommendation of Mackenzie as director of the new department. Smith, however, voiced his most vigorous protests on the former subjects, not on Mackenzie's possible selection.

Schmitz testified that "[Smith] was upset with the fact that he wasn't aware of the recommendations [that part of his area of responsibility would have been transferred to Mr. Koehler's area of responsibility]." Smith confirmed Schmitz's account, testifying: "I certainly had a discussion with Tom Cardella.... I chewed him out because I felt that the way that [the task force] presented this was unprofessional, and inappropriate, and really irritated me, because it had a major impact on my organization and people who worked for me." ¶ 67.

While Smith acknowledged his irritation with the task force process and recommendations, he disclaimed comparable ire over Mackenzie's possible promotion. Smith testified: Q: Wasn't it a fact that you were very upset that Jerry Mackenzie was going to be appointed, at least it was recommended that he be appointed to the level of director, and that would have taken him completely away from you? And that he would have been out of your area of control? Isn't that what you didn't like, the fact that Mackenzie was recommended for that position? A: No. Q: Did you support Mackenzie getting the job?

A: I don't know that I did. Q: Well, if you were so upset that you made an issue about it, as you have told us, whichever way you want to say it, what did you do about it? Did you just get upset and that was it? A: I had nothing to do with it. Q: Did you support somebody who had worked for you for as long as Mr. Mackenzie worked for you, and that is, from 1984 [until] 1992, when you heard that that task force was recommending him to become a director, did you say, good, Jerry's got his chance now of being director? Did you not do that or not? [sic] A: I didn't have any comment on it.

Q: But you certainly had a comment that you were upset with the way it was reported though. A: Yes, I was. Q: And part of what you were upset [about] was not only the way it was reported, but also the fact that Jerry Mackenzie was recommended to take over a new division as a director, correct? A: I don't think that's accurate. ¶ 68. Notwithstanding Smith's disclaimer, however, Mackenzie points to evidence establishing that Smith opposed his appointment. Schmitz testified: Q: One of the recommendations made to the committee was that Mr. Mackenzie head up the new department as director, would that be correct?

A: That was a suggestion that was made in the content of the formal recommendations. Q: Did Mr. Smith object to you? Did Mr. Smith discuss with you, at any time, any reservations he had regarding Mr. Mackenzie assuming such a position? A: Yes. Q: When did he do that? A: I think he brought it up briefly in our [en]counter directly after the board meeting, but we just- Q: Go ahead. A: We discussed it at that point. Q: What did he say, if anything, about Mr. Mackenzie, at that time?

A: I believe, if I remember correctly, he was upset that I made a recommendation on staffing the structure that we recommended, and that I was out of line making that type of recommendation without specifically talking to other senior members, and human resources, and that maybe Jerry wasn't the best candidate for that position. Q: Did he explain why he thought that? A: Not in that meeting. Q: Did he subsequently explain that? A: Yes. Q: And when did he do that? A: I believe it was within a couple of days of the day we had the recommendation meeting. Q: What did he say to you, at that time?

A: He basically re-expressed his displeasure at the way we expressed the recommendations. Q: What did he express about Mr. Mackenzie two days later, approximately? A: That he felt Jerry was not the right person to run the entire structure that we recommended. Q: Did he give a reason for that belief or opinion? A: Yes, he did. Q: What was that reason? A: He felt that Jerry was not a strong enough manager. Q: Did Mr. Smith give any explanation for that statement? A: He didn't go into detail. Additionally, Schmitz testified that Cardella told him that Smith opposed Mackenzie's appointment.

So, clearly, the record includes testimony to support Mackenzie's premise that Smith opposed his appointment and communicated that opposition to others. The record, however, contains absolutely no evidence that Smith, in so communicating, did anything improper. ¶ 69. Smith had been Mackenzie's supervisor; he was in a legitimate position to comment on Mackenzie's managerial abilities. See Singleton v. Itson, 383 S.E.2d 598, 600 (Ga. Ct.

App. 1989) ("Divulging truthful information and expressing critical personal opinions about a co-employee's work are not wrongful or unlawful acts and those acts cannot, therefore, give rise to liability for tortious interference with contractual relations . . . ."). Smith was not alone in opposing Mackenzie's promotion. Paul Zielinski, Director of Distribution Management at the time in question, testified at length about what he perceived to be Mackenzie's serious management style deficiencies.

When Zielinski learned that Mackenzie was being considered for the directorship, he conveyed his concerns to Smith and Cardella. Additionally, Schmitz testified that he (Schmitz) told Cardella and Koehler that he "didn't think that [Mackenzie] was a good selection." Schmitz explained that although he recommended Mackenzie to head a division under the new director, he "didn't believe that Jerry Mackenzie had sufficient management skills to be able to form and manage" the new department.

And Schmitz also testified that although Koehler had indicated that he "felt that, technically, Jerry was qualified for that position," Koehler was "not overly comfortable with [Mackenzie's] managerial style and skills." Finally, Schmitz testified: Q: As far as you know, Mr. Schmitz, was Bob Smith instrumental, in any way, in Jerry Mackenzie's not getting the director level position? A: Not as far as I know. Nor is that surprising.

After all, according to the undisputed evidence, Smith was but one of several expressing reservations about Mackenzie's appointment and Smith, unlike Koehler and Schmitz, who both had misgivings about Mackenzie, was not in a position to make the final selection. Thus, Mackenzie's assertion, in his brief to this court, that he "would have routinely become the new director but for Smith's objection" is baseless. ¶ 70. At trial, Mackenzie conceded that he was "never present at any meeting or discussion when Mr.

Smith made any statements about whether or not [he] should be the director of this newly created department." Thus, Smith's conduct, established by the evidence, reduces to little more than saying, according to Schmitz's testimony, that Mackenzie "was not a strong enough manager." Therefore, while Mackenzie points to evidence disputing what others viewed as his management deficiencies, he utterly fails to establish that Smith communicated anything that was false. See Liebe, 98 Wis. 2d at 13 ("[Transmission of truthful information . . . does not constitute improper interference with a contract . . . .").

He barely responds to Miller's assertion that he "has not challenged the honesty of Smith's limited comments." See Charolais, 90 Wis. 2d at 109 (unrefuted arguments deemed admitted). And while Mackenzie may believe, as his counsel ultimately argued to the jury, that Smith and others were "out to get him," he fails to suggest any possible motive for Smith to do so. After all, whether Mackenzie or someone else became the new director, Smith's greater grievance would remain — either way, he stood to lose personnel and responsibility. See Harman v. La Crosse Tribune, 117 Wis. 2d 448, 455-57, 344 N.W.2d 536 (Ct.

App. 1984) (determining whether defendant had good faith privilege in defense against action for interference with employment relationship, court considers defendant's intent and whether facts upon which plaintiff relies "reasonably support the inferences he draws"). B. Mackenzie's interest in being promoted, and the SOCIAL INTERESTS IN PROTECTING THE FREEDOM OF ACTION of Smith and the contractual interest of Mackenzie ¶ 71. Courts have been reluctant to recognize an at-will employee's interest in a promotion and have protected a supervisor's freedom to comment on a subordinate's qualifications for advancement.

For example, based on public policy grounds, the Arizona Court of Appeals refused to recognize the tort ofwrongful failure-to-promote. See Mintz v. Bell Atl. Sys. Leasing Int'l, Inc., 905 P.2d 559, 562 (Ariz. Ct. App. 1995). The court, quoting Ludwig v. C&A Wallcoverings, Inc., 960 F.2d 40, 43 (7th Cir. 1992), echoed the federal court's concerns: Recognizing a retaliation tort for actions short of termination could subject employers to torrents of unwarranted and vexatious suits filed by disgruntled employees at every juncture in the employment process. And why stop at demotions?

If... a demotion raises the same policy concerns as a termination, so too would transfers, alterations in job duties, and perhaps even disciplinary proceedings. The potential for expansion of this type of litigation is enormous. Mintz, 905 P.2d at 562; see also Ramsey v. Rudd, 272 S.E.2d 162, 164 (N.C. Ct.

App. 1980) (supervisor not liable for tort of malicious interference with employment contract where his truthful report of subordinate's early departure from work led to subordinate's discharge); Singleton, 383 S.E.2d at 600 (employee not liable for tortious interference with employment contract where "[djivulging truthful information and expressing critical personal opinions about a co-employee's work" led to employer's independent determination that the information warranted discharge of the co-employee). ¶ 72.

Although, in this case, we need not determine whether Wisconsin recognizes the tort of wrongful failure-to-promote, we do consider, under the Cudd criteria, the "social interests" implicated by Mackenzie's tortious interference claim. Accordingly, we observe, even if Mackenzie had offered evidence that Smith's conduct was improper, he still would have faced a high hurdle.

Mackenzie failed to account for important, practical policy concerns, fairly expressed by Wisconsin Manufacturers and Commerce: An employee must have the freedom to critique and honestly evaluate the performance of co-employees for promotions and job positions in order to properly serve the employer. It is difficult enough for an employer to receive honest, candid evaluations of co-employees without raising the risk of personal exposure. The prospect of liability would create a chilling effect, intimidating employees from giving accurate opinions, and would handicap many Wisconsin employers.

Moreover, it would open the door to challenges by disgruntled candidates and scrutiny of the motives and good faith of the employee who gave the evaluation. ¶ 73.

In an action for intentional interference with a prospective contract, we will not allow a jury's verdict to stand where there are "no facts or inferences from any facts that could lead a jury to reasonably conclude" that the defendant's conduct was improper and where, ultimately, any such conclusion "would be mere speculation." See Cudd, 122 Wis. 2d at 662; see also Foseid, 197 Wis. 2d at 778-91 (holding that trial court was correct in overturning jury verdict in action for intentional interference with prospective contract where jury " ’base[d] its findings on conjecture and speculation'") (quoted source omitted). ¶ 74.

Having reviewed the entire trial transcript and, in particular, having fastidiously focused on every record reference Mackenzie cites in support of his response to Miller's assertion that "there was no proof of interference," we can locate no support for Mackenzie's claim. Smith, Mackenzie's former supervisor, opposed Mackenzie's proposed promotion and said so. Koehler, with assistance from Schmitz, and apparently based, in part, on what Smith told them, decided not to promote Mackenzie. That's it; the rest is pure speculation. Once again, Mackenzie's proof proves to be no proof at all.

MACKENZIE S CROSS-APPEAL I. Tortious Interference With Contract — Punitive Damages ¶ 75. In his third cause of action, Mackenzie claimed that Best "improperly induced" Miller Brewing to terminate him "by fraudulently misrepresenting . . . that she felt harassed by [his]... conversation with her regarding the Seinfeld program," and, further, that she "had no purpose or desire independent of intentionally causing [his] termination ... by exerting moral pressure on Miller in fraudulently misrepresenting... that she felt harassed" by the conversation.

On this claim, although the jury awarded Mackenzie $0 compensatory damages, it did award him $1,500,000 punitive damages. On postverdict motions, however, the trial court denied Mackenzie's request to change the jury's answer to the compensatory damages question, concluding: The jury heard a great amount of evidence against Patricia Best. Clearly, it concluded in its award of punitive damages its disapproval of her conduct toward Jerold Mackenzie. Equally clear, however, is the fact that the jury did not believe that her conduct contributed to the compensatory loss of Jerold Mackenzie.

The trial court then set aside the punitive damage award because the jury had not awarded Mackenzie any compensatory damages against Best. See Tucker v. Marcus, 142 Wis. 2d 425, 439, 418 N.W.2d 818 (1988) ("[P]unitive damages are not available where there has been no 'award' of actual damages."). ¶ 76.

On cross-appeal, Mackenzie presents several related, alternative arguments: (1) the trial court erred in refusing to change the jury's answer to conform to what he claims was the undisputed evidence that "Best caused [him] compensatory damages in the amount of $4,771,056"; (2) the inconsistency of the compensatory and punitive damages verdicts requires a new trial; (3) the compensatory damage awards against Miller Brewing and Smith support the punitive damages award against Best-, and (4) the punitive damages should stand, even in the absence of compensatory damages against Best, because of the "inherently damaging" nature of Best's conduct.

We reject Mackenzie's arguments. A. The jury's answers / consistency of verdicts ¶ 77. This court will not disturb a damage award if there is a reasonable basis for the fact finder's determination. See Cords v. Anderson, 80 Wis. 2d 525, 552-53, 259 N.W.2d 672 (1977). Further, in reviewing such determinations, we view the evidence in the light most favorable to support the verdict. See id. at 553.

Moreover, making that review, we are " 'aided by [the trial court's] analysis of the evidence and appraisal of the award,'" id. (quoted source omitted), but will review the entire record "as a matter of first impression" where a trial court provides no reasons for its determination, see id. ¶ 78. Mackenzie first argues that "undisputed" evidence established that Best's conduct caused him compensatory damages and, therefore, that the trial court erred in refusing to change the jury's answer.

Mackenzie maintains that while Best disputed the amount of damages, she tacitly conceded a certified public accountant's testimony that her conduct caused damages of at least $4,771,056, if not the $9,101,222 the accountant said was Mackenzie's full loss of earning capacity as a result of his termination. Best responds that "Mackenzie's assertion that it was undisputed that [she] caused [him] damages in the amount of $4,771,056 is absurd." We agree. ¶ 79.

As Best argues, the defendants contested all the damages throughout the trial, "strenuously disputing] both Mackenzie's damages evidence and Mackenzie's attempt to attribute any of those damages to any of the defendants' conduct." (Emphases added.) In fact, the only evidence to which Mackenzie refers to support his contention is out of context and, as a result, completely misleading. Mackenzie cites the testimony of Fredric Kolb, the economics professor the defense retained to review the analysis prepared by Ricky Steiner, the accountant Mackenzie retained to calculate his economic damages.

Mackenzie contends that Professor Kolb challenged only the amount of damages calculated by Mr. Steiner. But what Mackenzie fails to acknowledge, in his brief to this court, is that Professor Kolb essentially disclaimed any knowledge of the underlying merits of any of Mackenzie's claims or theories. Professor Kolb merely evaluated Mr. Steiner's analysis and, indeed, prefaced his testimony by explaining that he "accepted], for purposes of [his (Kolb's)] evaluation, the assumptions contained within the plaintiffs damages analysis." ¶ 80.

Thus, we must move on to consider whether a reasonable basis exists for the jury's determination that while Best's conduct warranted punitive damages, her conduct caused Mackenzie no compensatory damages. Carefully comparing Mackenzie's and Best's theories, we see a reasonable basis. ¶ 81. Mackenzie argues, alternatively, that the compensatory/punitive damage verdicts either cannot reasonably be reconciled, or that, when reconciled, they support the punitive damages award.

In support of the latter alternative, Mackenzie suggests a plausible possibility: the jury, having already awarded compensatory damages on Mackenzie's misrepresentation claims against Miller Brewing and Smith, might have simply concluded that it need not award additional compensatory damages against Best in order to award punitive damages against her. Thus, Mackenzie emphasizes, the jury might have believed it was following the trial court's instructions: In answering the damage questions, be careful not to include or duplicate in any answer amounts included in any other answer made by you. . . .

Punitive damages may be awarded in addition to compensatory damages if you find that the defendant's conduct was outrageous. . . . You may not, however, award punitive damages unless you have awarded compensatory damages. (Emphasis added.) The instructions, Mackenzie correctly notes, did not delineate whether the compensatory damages the jury had "awarded" had to have been pegged specifically to Best. He argues, therefore, that the jury must have concluded that it could award him punitive damages against Best based on its compensatory damages verdicts against Miller Brewing and Smith. ¶ 82.

While possible, Mackenzie's theory is not the only plausible one. The jury, for all we know, might have viewed things differently. Reasonably, it could have distinguished Best's conduct from Miller Brewing's response to her complaint. Indeed, such a distinction would have been consistent with Mackenzie's original claim — that although his conduct was inappropriate, Best had not really felt as offended as she claimed, and she and Miller Brewing overreacted.

After all, as we have observed, Mackenzie's cause of action against Best was not that she had falsely accused him of having inappropriate conversations about the Seinfeld episode, but rather, that she "fraudulently misrepresented . . . that she felt harassed" by their conversations. In the jury's estimation, therefore, any resulting compensatory damages may have come from Miller Brewing's conduct in terminating Mackenzie, not from Best's conduct in reporting the incident. ¶ 83. Was the jury drawing this distinction? We do not know.

Clearly, the trial court could have refined the instructions or submitted clarifying questions. See Westfall v. Kottke, 110 Wis. 2d 86, 97, 328 N.W.2d 481 (1983) (" 'When a jury returns a verdict containing errors, inconsistencies or lack of compliance with the directions of the special verdict and instructions, the trial court may direct the jury's attention generally to the prospective error and require it to deliberate further to correct any errors that may exist.'") (quoting John A. Decker & John R. Decker, Special Verdict Formulation in Wisconsin, 60 Marq. L. Rev. 201, 272 (1977)).

But Mackenzie's insistence that a new trial on compensatory damages is required, based on Westfall's declaration that "when a verdict is inconsistent, such verdict, if not timely remedied by reconsideration by the jury, must result in a new trial," id. at 98, misses the mark. ¶ 84. In Westfall, the supreme court held that "the inconsistency on the face of the verdict was irreconcilable." Id. at 100 (emphasis added). Here, by contrast, as we explained, verdicts that may at first seem inconsistent can be reconciled. In Westfall, counsel moved for a new trial based, inter alia, on the inconsistency of the verdicts.

See id. at 92. Here, by contrast, although Mackenzie seeks a new trial on compensatory damages now, he did not do so in the trial court. See id. at 99 (Waiver of claims arising out of allegedly inconsistent verdicts may be appropriate where "the waiver does not result in a change of the prevailing party as found by the jury."). We also note that Mackenzie did not object to the instructions which, he now asserts, formed the basis for what he contends were the jury's inconsistent verdicts. See WlS.

Stat. § 805.13(3) (1997-98) ("Counsel may object to the proposed instructions or verdict on the grounds of incompleteness or other error, stating the grounds for objection with particularity on the record. Failure to object at the [instruction and verdict] conference constitutes a waiver of any error in the proposed instructions or verdict."). ¶ 85. We need not determine what the jury was thinking. It is enough to recognize that the jury reasonably could have returned verdicts finding that Best's conduct justified a punitive award, but that she did not cause Mackenzie any compensatory damages.

If so, the jury's punitive damages award against Best, while legally superfluous, was not logically inconsistent with its compensatory damages verdict. See Frey v. Alldata Corp., 895 F. Supp. 221, 224 (E.D. Wis. 1995) (although jury's answer "assessing punitive damages after finding zero compensatory damages ... is superfluous, it is legally impossible, not logically inconsistent"). Accordingly, we conclude that the trial court did not err in refusing to change the jury's answer and, further, that because the verdicts can be reconciled, no new trial on compensatory damages is required. B.

Compensatory damages / punitive damages ¶ 86. Mackenzie argues that, even in the absence of a compensatory damage award specifically denominated against Best, the punitive damage award against her can be upheld because of the compensatory damages awards against Miller Brewing and Smith. In support of his argument, Mackenzie has offered several intriguing theories based on the interplay of the evidence and claims in this case. By reversing the compensatory damages awards against Miller Brewing and Smith, however, we have effectively removed much of the foundation for Mackenzie's theories. ¶ 87.

In Tucker, the supreme court, in a 4^3 decision, declared: We hold today that punitive damages are not available where there has been no "award" of actual damages. . . . An "award" represents a remedy recoverable in accordance with an order for judgment. It is not enough that actual damages may have been "suffered" or "sustained" in order for punitive damages to be awarded. This holding is firmly rooted in long-standing principles of Wisconsin law. Tucker, 142 Wis. 2d at 439 (footnote omitted).

The supreme court has carved out only one possible exception, though even that involved an award of punitive damages accompanying other "nominal" damages. See Jacque v. Steenberg Homes, Inc., 209 Wis. 2d 605, 613-14, 621, 563 N.W.2d 154 (1997) (concluding that "consider[ing] the individual and societal interests implicated when an intentional trespass to land occurs," nominal damages "may support a punitive damage award"). ¶ 88.

Mackenzie argues that the reasoning of Jacque should extend to this case because the "individual and societal interests" just as strongly support the availability of punitive damages for a false complaint of sexual harassment.

After all, he contends, "[b]oth individuals and society have significant interest in deterring employees from making allegations of sexual harassment with the intent of interfering with the accused's contractual relation with his or her employer." We conclude, however, that notwithstanding society's obvious interest in deterring false complaints of sexual harassment, Mackenzie's argument is overwhelmed by competing considerations. ¶ 89.

Nothing in Tucker or Jacque offers the slightest indication that false complaints of sexual harassment should form the basis for an exception to the "firmly rooted" principle precluding punitive damages in the absence of compensatory damages. See Tucker, 142 Wis. 2d at 439. While Mackenzie, relying on Jac-que, argues that such an exception would be justified by the substantial consequences attending such a false complaint, Jacque, if it suggests anything, suggests otherwise. ¶ 90.

In Jacque, the supreme court concentrated very specifically on the special nature of the harm caused by trespass to land — a harm, obviously, wholly distinguishable from that resulting from a false complaint of sexual harassment. See Jacque, 209 Wis. 2d at 615-2

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