David Knott v. Timothy B. O'Brien LLC ( 2023 )

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
December 21, 2023
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2022AP1872 Cir. Ct. No. 2020CV367
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV
DAVID KNOTT,
PLAINTIFF-APPELLANT,
V.
TIMOTHY B. O’BRIEN LLC,
DEFENDANT-RESPONDENT.
APPEAL from a judgment of the circuit court for Dane County:
MARIO WHITE, Judge. Affirmed.
Before Blanchard, Graham, and Nashold, JJ.
Per curiam opinions may not be cited in any court of this state as precedent
or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2022AP1872
¶1 PER CURIAM. David Knott appeals a judgment that was entered
in favor of his former employer following a jury trial on Knott’s claim that he was
wrongfully discharged in violation of public policy. On appeal, Knott takes issue
with two aspects of the jury instructions. First, he contends that the circuit court
erred when it declined to add language to the standard instruction that would have
instructed the jury to apply the “substantial factor” standard when assessing
causation. Second, he asserts that the court erred when it declined to instruct the
jury on the purportedly preclusive effect of a final administrative agency
determination about his claim for unemployment compensation benefits. We
reject Knott’s arguments and affirm the judgment.
BACKGROUND
¶2 Knott was employed as a wellness consultant at a nutrition store
called Apple Wellness from 2013 until 2017. At all pertinent times, Apple
Wellness was owned by Timothy B. O’Brien LLC, which was in turn owned by
Timothy and Rebecca O’Brien.1 Apple Wellness terminated Knott’s employment
in February 2017, allegedly because he “engaged in a pattern of time clock
manipulation.”
1
Although the company Timothy B. O’Brien LLC is the employer and the Defendant-
Respondent in this case, we use the name “Apple Wellness” when referring to Knott’s former
employer in order to distinguish the employer from Timothy and Rebecca O’Brien, the
individuals who owned Timothy B. O’Brien LLC and supervised Knott’s employment. We refer
to Timothy and Rebecca collectively as the O’Briens, and individually by their full names.
On a related note, Apple Wellness was also known as “The Healthy Place” at some point.
For consistency, we refer to the store as Apple Wellness throughout the opinion, regardless of
which name is used in the underlying documents and testimony in the record.
2
No. 2022AP1872
¶3 Knott contends that this alleged reason for his discharge was merely
pretextual, and that the real reason Apple Wellness terminated his employment
was that he filed a wage complaint with the state department of workforce
development (DWD) several months prior to his termination. Based on this
theory, Knott initiated this action in the Dane County Circuit Court, alleging that
his discharge violated a fundamental and well-defined public policy. See
Brockmeyer v. Dun & Bradstreet, 113 Wis. 2d 561, 574, 335 N.W.2d 834 (1983)
(providing a narrow exception to the employment-at-will doctrine, under which
employees who are terminated in violation of certain fundamental and well-
defined public policies may bring civil actions for wrongful discharge against their
employers). Knott’s case ultimately proceeded to a two-day jury trial, and the
following facts are derived from the testimony and exhibits presented at trial.
¶4 As noted, Knott began working for Apple Wellness in 2013. During
his employment, Knott was paid a base salary plus commissions. For purposes of
wage laws governing overtime pay, Apple Wellness classified Knott as being
exempt from overtime pay requirements.
¶5 According to the O’Briens, Knott was frequently tardy for his shifts.
In 2016, Apple Wellness implemented a new policy that required its employees to
clock in and out using computer software, and to be clocked in at least five
minutes prior to the start of any shift.
¶6 Knott’s annual performance review was scheduled for November 14,
2016. That morning, Knott accessed his time entries from his home and reviewed
his work history. At trial, Knott testified that, in the course of this review, he
discovered “extreme errors” in his recorded times, including dates when he had
failed to clock out entirely, and he made retroactive changes to roughly twenty
3
No. 2022AP1872
different time entries that he had recorded throughout the year. Knott testified
that, in making these adjustments, he attempted to accurately reconstruct the hours
that he worked by referencing other data points that were recorded in Apple
Wellness’s computer system. However, it is undisputed that Knott added clock-in
and clock-out times on several holidays that he undisputedly did not work.
¶7 The parties disagree about whether Knott disclosed the adjustments
he made to the O’Briens during his November 2016 performance review. Knott
testified that he immediately informed them of the adjustments, which indicated he
had worked more than 150 hours of overtime, and that the O’Briens “passed right
over it.” By contrast, the O’Briens denied that he disclosed the adjustments during
his performance review; they instead contended that they did not discover the
adjustments until several months later.
¶8 During the performance review, the O’Briens also provided Knott
with a proposed new employment contract. One provision in the contract
provided that, to the extent he was not clocked in five minutes before the start of
his scheduled shift more than four times in a month, “[a]ny late occurrence
[thereafter would] result in a $35 fine for each occurrence, to be taken from
[Knott’s] bonus for that month.” Knott did not agree to those terms, which, he
contended, violated state wage laws.
¶9 In early December 2016, Apple Wellness informed Knott that, based
on his tardiness, it would deduct $105 from a discretionary bonus. Several days
later, Knott initiated the first of four administrative claims with DWD that
pertained to his employment. These claims are: the claim that he filed in response
to the $105 deduction; a subsequent claim that was part of the same DWD file and
related to his entitlement to overtime wages; a claim for unemployment
4
No. 2022AP1872
compensation benefits that he filed following the February 2017 termination of his
employment; and ultimately, a complaint alleging employment discrimination in
violation of the Wisconsin Fair Employment Act.
¶10 In this first claim, which we refer to as the “improper deduction
claim,” Knott alleged that the deduction from his bonus violated WIS. STAT.
§ 103.455 (2021-22)2 (providing that an employer cannot make any deductions
from an employee’s wages for loss or faulty workmanship without a court order or
the employee’s consent). A DWD investigator determined that the deduction
constituted an illegal withholding of wages.3
¶11 In early January 2017, Knott emailed the same DWD investigator
who handled the improper deduction claim to raise a number of additional issues
pertaining to his employment. These issues included questions about his status as
an employee who was exempt from overtime pay requirements and his possible
entitlement to overtime pay. We refer to Knott’s subsequent claim for unpaid
overtime wages as the “overtime claim,” and collectively to the improper
deduction and overtime claims, which were handled as part of the same DWD file,
as the “wage complaint.”
¶12 In response to Knott’s overtime claim, the investigator asked Apple
Wellness for additional information about Knott’s hours, pay structure, and duties.
It appears that shortly thereafter, Apple Wellness acknowledged that Knott was
entitled to some overtime pay and the DWD investigator facilitated a resolution
2
All references to the Wisconsin Statutes are to the 2021-22 version.
3
The DWD investigator ordered Apple Wellness to pay Knott $105 by January 20,
2017. Apple Wellness eventually paid Knott, but not by the deadline that DWD had imposed.
5
No. 2022AP1872
between the parties regarding the amount Knott was entitled to receive based on
the overtime hours that he worked.
¶13 Meanwhile, in the course of investigating the number of hours that
Knott had worked, the O’Briens reviewed Knott’s recorded time entries for the
prior year. It was at that point, according to the O’Briens, that they discovered the
numerous retrospective adjustments that Knott had made to his time clock entries
just before his annual performance review.
¶14 The O’Briens confronted Knott about these adjustments on
February 16, 2017. Knott testified the interaction was “incredibly brief” and “very
aggressive.” According to Knott, he explained that he had made the adjustments
to correct errors, and only to the extent that he could match the adjustments to
other data points, but the O’Briens “essentially” told him that his reason for
making the adjustments did not matter. Apple Wellness terminated Knott’s
employment later that day for “falsifying time records.”
¶15 Shortly after his discharge, Knott filed a claim for unemployment
compensation benefits (“the unemployment claim”). Apple Wellness opposed
Knott’s entitlement to benefits, alleging that he had been discharged based on
“misconduct” or “substantial fault” in connection with his employment.4 An
investigator issued an initial determination finding that Knott was entitled to
benefits, which Apple Wellness appealed. Following an evidentiary hearing,
4
Pursuant to WIS. STAT. § 108.04(5), an employee who is discharged for misconduct
connected with their employment is ineligible for the immediate payment of benefits. And
pursuant to § 108.04(5g), an employee whose work is terminated for substantial fault by the
employee connected with the employee’s employment is also ineligible for the immediate
payment of benefits. A discharged employee is presumed to be entitled to benefits, and the
burden is on the employer to prove misconduct or substantial fault.
6
No. 2022AP1872
DWD issued a final determination finding, among other things, that Apple
Wellness did not prove that Knott “falsified any records” and, therefore, his
conduct did not constitute “misconduct” or “substantial fault.” The O’Briens did
not seek judicial review of DWD’s final determination, which we discuss in
greater detail below.
¶16 Knott also filed a discrimination complaint with DWD’s equal rights
division (“the discrimination complaint”). He alleged, among other things, that
Apple Wellness terminated his employment because he “previously filed a wage
and hour complaint,” and that this constituted discrimination in violation of
Wisconsin’s Fair Employment Act, WIS. STAT. § 111.322(2m)(a). The DWD
investigator who was assigned to the case issued an initial determination, which
found no probable cause that Apple Wellness violated the Fair Employment Act
when it terminated Knott’s employment. Among other things, the DWD
investigator determined that Apple Wellness “articulated [a] legitimate non-
discriminatory reason[] for the … discharge”—namely, Knott’s alteration of his
time records—and that Knott had not “provided information sufficient to show
these reasons to be [a] pretext for discrimination based upon the wage complaint.”
Knott did not appeal or seek judicial review of the dismissal of his discrimination
claim.
¶17 Knott then filed the circuit court case that is the subject of this
appeal. In his complaint, Knott alleged that O’Brien had wrongfully discharged
him in violation of the public policy evinced by WIS. STAT. § 103.455. As noted,
§ 103.455 forbids deducting an employee’s wages for loss or faulty workmanship
without a court order or the employee’s consent, and our supreme court has
determined that § 103.455 evinces a fundamental and well-defined public policy
against economic coercion and can be the basis for a claim that an employee was
7
No. 2022AP1872
wrongfully discharged in violation of public policy. Wandry v. Bull’s Eye Credit
Union, 129 Wis. 2d 37, 47, 384 N.W.2d 325 (1986).5
¶18 In its answer, Apple Wellness admitted that it had “withheld a
discretionary bonus of $105 from [Knott] due to [Knott’s] chronic tardiness.”
However, Apple Wellness alleged that Knott had been terminated due to his
“manipulation of the time records and theft of time,” not because he filed a wage
complaint.
¶19 Neither party filed any dispositive motions. Two key disputes
emerged in the parties’ pretrial filings and during the final pretrial conference.
¶20 The first dispute concerned language in WIS JI—CIVIL 2750, which
is the standard jury instruction governing claims of wrongful discharge in
violation of public policy. The standard instruction includes three paragraphs,
including the following paragraph, as modified to fit the facts of this case:
[Knott] claims that [he] was fired from [his] job by
[Apple Wellness] because [he filed a claim with the
Department of Workforce Development seeking payment
of $105 which was determined to be wrongfully withheld].
If you find that [Apple Wellness] fired [Knott] for that
reason, then [Knott] was wrongfully discharged.
5
In Wandry v. Bull’s Eye Credit Union, 129 Wis. 2d 37, 47, 384 N.W.2d 325 (1986),
the employee alleged that she was discharged because she would not reimburse her employer for
the loss that resulted from the employee’s acceptance of a bad check from a customer. Id. at 40.
Although her employer had not expressly violated WIS. STAT. § 103.455 by seeking the
reimbursement, see id. at 44, and she therefore would have had no basis to file a wage claim
under § 103.455 or a discriminatory discharge claim under the Wisconsin Fair Employment Act,
see WIS. STAT. § 111.322(2m)(a) (forbidding discrimination against an employee for filing a
wage complaint under § 103.455), our supreme court concluded that the employee’s complaint
alleged facts, that if true, showed that her discharge violated the public policy against economic
coercion that was evinced by the statute, see id. at 47-49.
8
No. 2022AP1872
WIS JI—CIVIL 2750. Knott asked the circuit court to further modify that
instruction by adding an additional paragraph that was modeled after WIS JI—
CIVIL 1500 and would have instructed the jury to apply the “substantial factor”
standard of causation. The additional paragraph Knott proposed would have
provided:
So you must decide if the decision to terminate
Knott was because Knott exercised his right not to have
amounts deducted or withheld from his paycheck. Another
way of saying this is: was Knott exercising his rights a
cause of [Apple Wellness’s] decision to terminate Knott?
This question does not ask about “the cause” but rather “a
cause” because a decision may have more than one cause.
Someone’s decision was “because” of something, or was
caused by that something, if it was a substantial factor in
producing the decision. A decision may be caused by one
or more underlying factors.
(Emphasis omitted.) Apple Wellness opposed Knott’s proposed addition to the
instruction on the ground that it contained confusing language.
¶21 The circuit court ultimately rejected Knott’s request. It reasoned that
parties in wrongful discharge cases might commonly dispute the employer’s
reason or reasons for the discharge, but even so, “the [jury] instruction[]
committee did not include any sort of ‘substantial cause’” language in the standard
instruction. Therefore, under the circumstances, the court determined that it would
not be appropriate to modify the instruction as Knott requested.
¶22 The second dispute concerned the preclusive effect, if any, of
DWD’s final determination regarding Knott’s unemployment claim. Although
Knott had not filed a pretrial motion in limine seeking to bar Apple Wellness from
introducing evidence at trial that would contradict DWD’s legal and factual
determinations regarding Knott’s unemployment claim, Knott argued that some of
DWD’s determinations were preclusive. Apple Wellness argued that DWD’s
9
No. 2022AP1872
unemployment decision did not have preclusive effect and that, if any decision
gave rise to issue preclusion, it would be DWD’s initial determination finding no
probable cause to support Knott’s discrimination complaint.
¶23 The circuit court ultimately determined that the unemployment and
discrimination decisions were both admissible, but that it would not instruct the
jury that either had any preclusive effect. Instead, the court opted to instruct the
jury that it was not bound by either of DWD’s determinations, that it could
consider both, and that the jury could give each determination whatever weight it
deemed appropriate.
¶24 Knott’s case proceeded to trial, with the primary dispute being Apple
Wellness’s reason for discharging Knott. There was no significant dispute about
the extent of the adjustments that Knott made to his time entries, but the parties’
testimony diverged significantly on the nature and propriety of those adjustments.
¶25 Knott’s theory of the case was that Apple Wellness’s “only
explanation” for discharging him was that he had falsified time records, and that
this asserted reason was pretextual. Knott conceded that he had altered his time
records, but he emphasized that the evidence would show that he had not falsified
them. According to Knott, DWD’s determinations with regard to the
unemployment claim and other trial evidence all indicated that the adjustments
were not inappropriate and that Knott had not falsified any records. Therefore, the
jury should infer that he had been discharged for filing the improper deduction
complaint. Knott relied on his testimony that “it was incredibly tense in the
workplace” following his improper deduction claim, and that he “sensed” that
“they were looking to fire me.” In closing arguments, Knott argued his
“substantial factor” theory of causation to the jury, stating that if the jury found his
10
No. 2022AP1872
improper deduction wage complaint was “a cause” or a “substantial factor” of his
discharge, then he was wrongfully discharged in violation of public policy.
¶26 Apple Wellness’s theory of the case was that it discharged Knott
because of his time clock adjustments. In its opening argument, Apple Wellness
conceded that it had been a mistake to deduct money from Knott’s bonus as a fine
for his chronic tardiness, but it argued that that was not the reason the O’Briens
decided to terminate his employment. Apple Wellness argued that the O’Briens
attempted to “make it right” after Knott filed his overtime claim, and that, in the
course of attempting to remedy that issue, they discovered the time clock
adjustments. According to the O’Briens, these adjustments were extensive,
unauthorized, and not in keeping with company policy. In closing argument,
Apple Wellness argued:
If you conclude that [Knott] was fired because he filed a
claim for $105, then he was wrongfully terminated,
absolutely, but if you believe that he was terminated for
any other reason, you cannot find that he was wrongfully
terminated. Remember, he can be terminated for any
reason or no reason.… But they had a reason. They found
out that he had changed his records and not told them.
¶27 The jury returned a verdict finding that Knott was not wrongfully
discharged, and the circuit court entered judgment in Apple Wellness’s favor.
Knott appeals.6
6
In its appellate briefing, Apple Wellness contends that we lack jurisdiction over this
appeal because Knott filed his notice of appeal on November 1, 2022, which was one week before
the circuit court entered final judgment on November 8, 2022. Apple Wellness argues that an
appeal cannot be taken before a final judgment is entered, and that Knott’s appeal must therefore
be dismissed “without recourse or remand.” We disagree. Under WIS. STAT. § 808.04(8) we
treat Knott’s notice of appeal as if it had been filed on the date that the final judgment was
entered, and therefore we have jurisdiction over the appeal. See § 808.04(1).
(continued)
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No. 2022AP1872
DISCUSSION
¶28 The issue in this appeal is whether the circuit court erred when it
denied Knott’s requests with regard to the jury instructions. “A circuit court has
broad discretion” when instructing a jury, and the “‘decision to give or not to give
a requested jury instruction …’ will not be reversed absent an erroneous exercise
of discretion.” State v. Hubbard, 2008 WI 92, ¶28, 313 Wis. 2d 1, 752 N.W.2d
839 (quoting Arents v. ANR Pipeline Co., 2005 WI App 61, ¶42, 281 Wis. 2d 173,
696 N.W.2d 194). A court properly exercises its discretion when it “fully and
fairly inform[s] the jury of the rules of law applicable to the case,” which “assist[s]
the jury in making a reasonable analysis of the evidence.” Dakter v. Cavallino,
2015 WI 67, ¶31, 363 Wis. 2d 738, 768, 866 N.W.2d 656. Instructions are
erroneous if they misstate the law or describe it “in a manner likely to mislead the
jury.” Id., ¶84.
¶29 Whether the court erred by stating the law incorrectly or in a
misleading manner constitutes a question of law that we review de novo on appeal.
Smith v. Goshaw, 2019 WI App 23, ¶9, 387 Wis. 2d 620, 928 N.W.2d 619. “As a
general matter, if we determine ‘that the overall meaning communicated by the
instruction as a whole was a correct statement of the law, and the instruction
comported with the facts of the case at hand, no ground for reversal exists.’”
Nommensen v. American Continental Ins. Co., 2001 WI 112, ¶50, 246 Wis. 2d
132, 629 N.W.2d 301 (citation omitted).
We further observe that, in support of this jurisdictional argument, Apple Wellness relies
in part on an unpublished per curiam opinion that cannot be cited in any Wisconsin court except
under limited circumstances not present here. See WIS. STAT. RULE 809.23(3)(a) We remind
counsel that our rules do not allow for the citation of such opinions, and that violations of our
rules can be grounds for sanctions. See WIS. STAT. RULE 809.83(2).
12
No. 2022AP1872
¶30 Knott takes issue with the two aspects of the jury instructions that
are mentioned above—the circuit court’s decision to not instruct the jury on the
substantial factor standard of causation, and its decision to not instruct the jury on
the purportedly preclusive effect of the DWD determination that resolved Knott’s
unemployment claim. We address these issues in turn.
I. Substantial Factor
¶31 Knott argues that the substantial factor standard is the test for
causation in Wisconsin, and that it applies to his wrongful discharge claim. He
contends that the circuit court erred by declining to provide his proposed
instruction, or alternatively, by otherwise failing to provide a different instruction
that would have directed the jury to apply the substantial factor test.
¶32 We begin our analysis with an overview of the law governing claims
for wrongful discharge in violation of public policy. “Wisconsin, like many states,
adheres to the doctrine of employment-at-will.” Strozinsky v. School Dist. of
Brown Deer, 2000 WI 97, ¶33, 237 Wis. 2d 19, 614 N.W.2d 443. This doctrine
has been a “stable fixture of our law since 1871” and provides that, if the terms of
employment are indefinite, the “employer may discharge an employee ‘for good
cause, for no cause, or even for cause morally wrong, without being thereby guilty
of a legal wrong.’” Id., ¶33 (quoting Brockmeyer, 113 Wis. 2d at 574).
“Generally, at-will employees cannot pursue legal claims stemming from … an
employer’s decision to terminate the employment relationship.” Brockmeyer, 113
Wis. 2d at 574.
¶33 Federal and state laws have limited this doctrine in some respects
over time, allowing employees to seek legal relief for the termination of at-will
employment under certain circumstances. Strozinsky, 237 Wis. 2d 19, ¶34 (citing
13
No. 2022AP1872
Brockmeyer, 113 Wis. 2d at 567-68). Wisconsin’s Fair Employment Act
identifies many such circumstances, Brockmeyer, 113 Wis. 2d at 576 n.17, and it
allows employees who have been discharged for reasons prohibited by the Act to
file discrimination claims with the DWD, see WIS. STAT. §§ 111.321-111.39. As
one pertinent example, the Act provides that, if an employee was discharged
“because” the employee “file[d] a complaint or attempt[ed] to enforce any right
under” statutes including WIS. STAT. § 103.455, which forbids certain deductions,
the employee may challenge the discriminatory discharge by filing a
discrimination complaint with DWD pursuant to § 111.39.7 See § 111.322(2m)(a).
7
Although the gravamen of Knott’s cause of action is that Apple Wellness terminated
his employment because he filed the improper deduction claim pursuant to WIS. STAT. § 103.455,
Knott did not and does not describe his cause of action as a discriminatory discharge claim. We
discern two potential reasons that Knott does not use that label to describe the claim he is
pursuing, both of which could be raised as a defense to Knott’s wrongful discharge claim.
First, as discussed above, the Wisconsin Fair Employment Act provides a statutory
remedy for discriminatory discharge claims, see WIS. STAT. § 111.322(2m)(a), and our supreme
court has determined that, in such cases, the statutory remedy is exclusive. See Brockmeyer v.
Dun & Bradstreet, 113 Wis. 2d 561, 576 & n.17, 335 N.W.2d 834 (1983) (the “legislature has
enacted a variety of statutes to prohibit certain types of discharge,” and “[w]here the legislature
has created a statutory remedy for a wrongful discharge, that remedy is exclusive”); see also
Repetti v. Sysco Corp., 2007 WI App 49, ¶¶9, 13, 300 Wis. 2d 568, 730 N.W.2d 189 (no
wrongful discharge action when the legislature has already provided adequate mechanisms for the
vindication of public policy). Therefore, if an employee is discharged because the employee filed
a complaint or attempted to enforce any right under WIS. STAT. § 103.455, the remedy is to file a
discrimination complaint with DWD under § 111.322(2m)(a), with the option of seeking judicial
review of DWD’s final determination under WIS. STAT. § 111.395 and WIS. STAT. ch. 227.
Because the legislature has provided a statutory remedy for employees who are discharged
because they filed an improper deduction claim under § 103.455, the statutory remedy is
exclusive and Knott cannot pursue such a claim under the wrongful-discharge-in-violation-of-
public-policy framework that was created in Brockmeyer. Brockmeyer, 113 Wis. 2d at 576 n.17;
Repetti, 300 Wis. 2d 568, ¶¶9, 13.
Second, as also discussed above, Knott did in fact file a discrimination complaint with
DWD, alleging, among other things, that Apple Wellness discharged him for filing the improper
deduction claim. Indeed, a DWD investigator dismissed his claim for lack of probable cause, and
Knott did not appeal that determination within DWD or seek judicial review. Therefore, Knott
has not exhausted the exclusive remedy for his discrimination claim.
(continued)
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No. 2022AP1872
¶34 However, our supreme court has also recognized that “the legislature
has not and cannot cover every type of wrongful termination that violates a clear
mandate of public policy.” Brockmeyer, 113 Wis. 2d at 576. Therefore, as
mentioned above, the Brockmeyer court crafted a narrow public policy exception
to the employment-at-will doctrine. Strozinsky, 237 Wis. 2d 19, ¶35 (citing
Hausman v. St. Croix Care Ctr., 214 Wis. 2d 655, 663, 571 N.W.2d 393 (1997)).
This judicially created exception protects employees who are wrongfully
discharged under circumstances that are not covered by federal or state legislation
and those whose job security is not safeguarded by a collective bargaining
agreement or civil service regulations. Brockmeyer, 113 Wis. 2d at 567-68. This
exception grants employees a cause of action for those discharges that violate
public policy.
¶35 To prevail in a wrongful-discharge-in-violation-of-public-policy
claim, an employee must identify a fundamental and well-defined public policy
that is “evidenced by” a constitutional, statutory, or administrative provision. See
Winkleman v. Beloit Mem’l Hosp., 168 Wis. 2d 12, 22, 483 N.W.2d 211 (1992)
(citing Brockmeyer, 113 Wis. 2d at 574); Batteries Plus, LLC v. Mohr, 2001 WI
80, ¶25, 244 Wis. 2d 559, 628 N.W.2d 364. The employee must also demonstrate
that the discharge violated that fundamental and well-defined public policy. See
Winkleman, 168 Wis. 2d at 22, 24-26; Kempfer v. Automated Finishing, Inc.,
211 Wis. 2d 100, 114, 564 N.W.2d 692 (1997). This requires the employee to
demonstrate a connection between the discharge and the public policy that was
allegedly violated, see Wandry, 129 Wis. 2d at 47, typically that the employee
However, Apple Wellness has not sought dismissal of Knott’s wrongful discharge claim
on either basis, and we do not further address those potential issues in this opinion.
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No. 2022AP1872
“was terminated for refusing to act contrary to [the] fundamental and well-defined
public policy,” Kempfer, 211 Wis. 2d at 114. If the employee succeeds, the
burden shifts to the employer to show that the discharge was for “just cause,”
meaning, in this context, a reason that does not violate public policy. Winkleman,
168 Wis. 2d at 24 (citing Brockmeyer, 113 Wis. 2d at 574); id. at 27 (appearing to
describe just cause as an affirmative defense); see also WIS JI—CIVIL 2750
(comments).
¶36 Here, in instructing the jury on Knott’s wrongful-discharge-in-
violation-of-public-policy claim, the circuit court followed the standard instruction
closely, directing the jury as follows:
In Wisconsin, an employer may discharge an
employee for a good reason, for no reason, or even for a
thing that is morally wrong, without committing a legal
wrong. An exception to this rule is where the termination
of the employee’s job violates a well-established and
important public policy. Public policy in Wisconsin
prohibits the firing of an employee for filing a wage claim
under Wisconsin Statute Section 103.455.
David Knott claims he was fired from his job by
[Apple Wellness] because he filed a claim with the
Department of Workforce Development seeking payment
of $105 which was determined to be wrongfully withheld.
If you find that [Apple Wellness] fired David Knott for that
reason, then David Knott was wrongfully discharged.
A discharge is not wrongful merely because it is
unreasonable or motivated by bad faith or malice. Further,
a discharge is not wrongful merely because the discharged
employee’s conduct was praiseworthy or because the
public may have derived some benefit from it.8
8
In its entirety, WIS JI—CIVIL 2750 provides:
(continued)
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No. 2022AP1872
The court also tailored the special verdict question to mirror the language in the
second paragraph of its instruction, such that the special verdict question asked:
“Was David Knott wrongfully discharged from his employment by [Apple
Wellness] because he filed a wage claim with the Department of Workforce
Development seeking payment of $105 which was determined to be wrongfully
withheld?”
¶37 The circuit court’s instruction was consistent with the above-stated
legal standard for wrongful-discharge-in-violation-of-public-policy claims. It
followed the pattern instruction, explaining that Knott claimed he was discharged
“because he filed a claim with the Department of Workforce Development,” and
instructing the jury that Knott “was wrongfully discharged” if the jury found that
In Wisconsin, an employer may discharge an employee
for good reason, for no reason, or even for a reason that is
morally wrong, without committing a legal wrong. An exception
to this rule is (where the termination of the employee’s job
violates) (where the employee is discharged for refusing an
employer’s command to do something that would itself violate) a
well-established and important public policy. Public policy in
Wisconsin prohibits the firing of an employee for (insert policy).
(Plaintiff) claims that (he) (she) was fired from (his)
(her) job by (defendant) because (give public policy being
violated, e.g., (he) (she) refused to commit perjury). If you find
that (defendant) fired (plaintiff) for that reason, then (plaintiff)
was wrongfully discharged.
A discharge is not wrongful merely because it is
retaliatory, unreasonable, or motivated by bad faith or malice.
Further, a discharge is not wrongful merely because the
discharged employee’s conduct was praiseworthy or because the
public may have derived some benefit from it.
Per Knott’s request, the circuit court made one revision to the standard instruction,
removing “retaliatory” from the third paragraph. Neither party asserts that this modification was
erroneous or is material to any issue on appeal, and we discuss it no further.
17
No. 2022AP1872
Apple Wellness “fired” him “for that reason.” (Emphasis added.) Similarly, the
modified verdict form charged the jury with determining whether Knott was
discharged “because he filed” the improper deduction claim with DWD.
(Emphasis added.)
¶38 Knott does not argue that the instruction or verdict form misstated
the law governing wrongful discharge claims. Indeed, Knott concedes that, in
order for the jury to find that he was wrongfully discharged, the jury had to find
that Apple Wellness was motivated to discharge him “because” he filed the
improper deduction complaint, or in other words, that Apple Wellness discharged
him “for that reason.” And, aside from using different language to describe the
public policy that Apple Wellness allegedly violated, Knott’s proposed instruction
would have retained nearly the entirety of the instruction that the court provided to
the jury.
¶39 Instead, Knott argues that the circuit court should have provided
additional instruction to the jury regarding the meaning of the word “because,”
and that the court’s refusal to provide additional instruction was an erroneous
exercise of discretion. To this end, Knott relies on case law about the “substantial
factor” standard of causation, which has been developed through the common law
to address causation in tort and criminal cases.
¶40 The substantial factor test is a test of “cause-in-fact” that is
commonly used in negligence and criminal actions. See Morgan v. Pennsylvania
Gen. Ins. Co., 87 Wis. 2d 723, 735, 275 N.W.2d 600 (1979) (explaining that the
test of cause-in-fact in negligence actions is the substantial factor standard); State
v. Oimen, 184 Wis. 2d 423, 436, 516 N.W.2d 399 (1994) (applying the substantial
factor test in the context of felony murder); State v. Owen, 202 Wis. 2d 620, 631,
18
No. 2022AP1872
551 N.W.2d 50 (Ct. App. 1996) (applying the substantial factor test in the context
of a criminal charge for recklessly causing great bodily harm). Under this test, an
actor’s action is a “cause” of a result if the action “was a substantial factor in
contributing to the result.” Eau Claire Press Co. v. Gordon, 176 Wis. 2d 154,
160, 499 N.W.2d 918 (Ct. App. 1993); see also Morgan, 87 Wis. 2d at 735;
Cefalu v. Continental West. Ins. Co., 2005 WI App 187, ¶11, 285 Wis. 2d 766,
703 N.W.2d 743. To be a substantial factor, the action does not need to be the
sole, primary, or even immediate cause, but instead only a significant factor that
leads to the result. See State v. Miller, 231 Wis. 2d 447, 455-57, 605 N.W.2d 567(Ct. App. 1999) (citing Oimen, 184 Wis. 2d 423; Owen, 202 Wis. 2d 620). Under
this test, there can be more than one substantial factor that is a cause-in-fact of a
result. See Morgan, 87 Wis. 2d at 735.
¶41 Knott appears to concede that none of our wrongful discharge cases
have adopted or applied the substantial factor test when determining whether an
employee was discharged for a reason that violates public policy. And, in our
view, neither this specific test for “cause-in-fact,” nor the general concept of
causation, is well suited to address the pertinent inquiry in wrongful discharge
claims. Such claims turn on whether the employee was discharged because of a
reason that violates public policy, and that inquiry turns on the reason or reasons
that motivated the employer’s decision to discharge the employee. As discussed
in greater detail below, the causes of a discharge are not necessarily the same thing
as the employer’s reasons for the decision.
¶42 Knott nevertheless argues that, without his proposed addition to the
instruction or some other instruction on the substantial factor test, the instruction
the circuit court did provide was incomplete and likely to mislead the jury. We
disagree.
19
No. 2022AP1872
¶43 We first explain why we conclude that the court did not err in
declining to provide the instruction Knott requested. In reaching this conclusion,
we assume without deciding that some variation of the substantial factor test could
be adapted to apply to wrongful discharge claims, such that an employee might be
able to prevail by proving that the employee’s refusal to violate public policy was
a substantial factor motivating the employer’s decision to terminate the
employment. Even with this assumption, we conclude that Knott’s proposed
instruction would likely have misled the jury into applying an incorrect legal
standard.
¶44 As stated, the decisive question in wrongful discharge claims is not
actually the cause of an employee’s discharge, but is instead the employer’s
motivation, or in other words its reason or reasons for deciding to discharge the
employee. Yet, Knott’s proposed instruction would have conflated these concepts.
That is, Knott would have asked the jury to determine the “cause” or “causes” of
Apple Wellness’s decision to terminate his employment and whether the improper
deduction claim was “a substantial factor in producing the decision,” rather than
asking the jury about the reasons that motivated Apple Wellness’s decision.9
9
As mentioned above, Knott’s proposed instruction would have provided:
So you must decide if the decision to terminate Knott
was because Knott exercised his right not to have amounts
deducted or withheld from his paycheck. Another way of saying
this is: was Knott exercising his rights a cause of [Apple
Wellness’s] decision to terminate Knott? This question does not
ask about “the cause” but rather “a cause” because a decision
may have more than one cause. Someone’s decision was
“because” of something, or was caused by that something, if it
was a substantial factor in producing the decision. A decision
may be caused by one or more underlying factors.
(continued)
20
No. 2022AP1872
¶45 Knott’s proposed instruction misstates the law as applied to the facts
of his claim. As we now explain, a jury following this instruction could have
determined that Knott’s improper deduction claim was “a substantial factor in
producing” the termination decision, even if the jury also concluded that the
improper deduction claim did not motivate Apple Wellness’s decision. More
specifically, the jury could have found that the sole reason Apple Wellness
terminated Knott’s employment was Knott’s alteration of his time clock records,
and that reason does not violate public policy. However, the jury could also have
found that the O’Briens would never have reviewed Knott’s past time clock entries
and discovered the adjustments but for Knott filing the improper deduction claim,
which led to the DWD investigator’s questions about his eligibility for overtime
pay and his entitlement to back pay for the overtime hours that he had worked in
past months. Therefore, the jury could have found that Knott’s improper
deduction claim was in that sense a cause of the discharge, even if it was not a
reason that motivated the decision.
(Emphasis omitted.) Knott’s proposed instruction was modeled after language from WIS JI—
CIVIL 1500, which is the pattern instruction addressing the cause of an accident or injury in a
negligence action. Unmodified, WIS JI—CIVIL 1500 provides:
In answering question(s) __, you must decide whether
someone’s negligence caused the (accident) (injury). (This)
(These) question(s) (does) (do) not ask about “the cause” but
rather “a cause” because an (accident) (injury) may have more
than one cause. Someone’s negligence caused the (accident)
(injury) if it was a substantial factor in producing the (accident)
(injury). An (accident) (injury) may be caused by one person’s
negligence or by the combined negligence of two or more
people.
(Emphasis omitted.)
21
No. 2022AP1872
¶46 Therefore, we conclude that the circuit court appropriately exercised
its discretion in declining to provide Knott’s proposed instruction. A court does
not err when it declines to give an instruction likely to mislead the jury.
¶47 We further conclude that the court did not err in declining to
otherwise instruct the jury that Knott was wrongfully discharged if Apple
Wellness’s decision to terminate Knott was motivated by a combination of reasons
that included but was not limited to Knott’s improper deduction claim. Knott
relies on Reserve Supply Co. v. Viner, 9 Wis. 2d 530, 101 N.W.2d 663 (1960),
and Clark v. Leisure Vehicles, 96 Wis. 2d 607, 292 N.W.2d 630 (1980), to
support his argument that the jury should have been so instructed, but his reliance
on these cases is misplaced.
¶48 Reserve Supply and Clark are both negligence cases, and in each
case, there was evidence that multiple different causes, including the plaintiff’s
own negligence, contributed to the accident that caused the plaintiff’s injury.
Reserve Supply Co., 9 Wis. 2d at 531-534; Clark, 96 Wis. 2d at 609-12. In
Reserve Supply, the court instructed the jury to determine whether the defendant’s
negligence “caused” the accident, Reserve Supply Co., 9 Wis. 2d at 533, and in
Clark, the court asked the jury whether the defendant’s negligence was “the
cause” of the accident, Clark, 96 Wis. 2d at 612. In both cases, our supreme court
determined that the instruction was likely to mislead the jury because it failed to
recognize that the evidence suggested that the accident had multiple causes. See
Reserve Supply Co., 9 Wis. 2d at 532-33 (“It is well-settled in Wisconsin that
when evidence supports a number of contributing causes the charge of the verdict
should recognize that possibility and it is error to confine the causation question to
a single cause.” (citing Berrafato v. Exner, 194 Wis. 149, 158, 216 N.W. 165(1927))); see also Clark, 96 Wis. 2d at 619-20.
22
No. 2022AP1872
¶49 Standing in contrast is Spleas v. Milwaukee & Suburban Transport
Corp., 21 Wis. 2d 635, 124 N.W.2d 593 (1963), which is instructive here. In
Spleas, the plaintiff fell as he was attempting to board a bus driven by the
defendant. Id. at 637. According to the plaintiff, the bus driver closed the door on
the plaintiff’s leg, catching the leg and causing the plaintiff to fall. Id. The bus
driver disputed the plaintiff’s account, testifying that the plaintiff never came into
contact with the bus at all and had instead fallen of his own accord as he stood
next to the bus. Id. Our supreme court determined that, based on the trial
evidence, the jury should have been instructed to determine “the cause,” rather
than “a cause,” of the injury. Id. at 639. It reasoned that the evidence presented
two binary theories of causation—the plaintiff’s version under which the bus
driver’s negligence was the sole cause of his injury, and the bus driver’s version
under which the plaintiff’s own negligence caused the accident—and that neither
version presented any issue of contributory negligence. Id. Accordingly, it
concluded that it was error to instruct the jury that there could be more than one
cause of the plaintiff’s injuries. See id.¶50 This case is more similar to Spleas than it is to Reserve Supply and
Clark. As in Spleas, there were no issues of comparative fault—indeed, such
issues do not arise in the context of claims of wrongful-discharge-in-violation-of-
public-policy. Nor was there evidence or argument that Apple Wellness
discharged Knott based on a number of different reasons, some of which violated
public policy and some that did not. Rather, as in Spleas, the jury was presented
with binary theories—either Apple Wellness discharged Knott because of his
conduct with regard to the time clock adjustments, or alternatively, that Apple
Wellness’s asserted reason was pretext, and the jury could infer that Apple
Wellness actually discharged Knott in retaliation for filing his claim with DWD.
23
No. 2022AP1872
Although Knott argues on appeal that Apple Wellness “alleged a number of
reasons for discharging Knott, only one of which violated public policy,” this
contention is directly contradicted by the evidence and arguments presented at
trial, including Knott’s opening and closing arguments and his own trial
testimony, which emphasized that the O’Briens had consistently stated that the
only reason Apple Wellness discharged Knott was for falsifying his time clock
records.
¶51 Therefore, even assuming that Knott could hypothetically prevail on
his wrongful discharge claim by proving that his filing the improper deduction
claim was a reason, rather than the sole reason, that the O’Briens were motivated
to terminate his employment, the circuit court did not err in declining to so instruct
the jury.
II. Issue Preclusion
¶52 Knott contends that the circuit court erred when it declined to apply
the doctrine of issue preclusion and, on that basis, instruct the jury on the
purportedly preclusive effect of several determinations that DWD made when it
resolved his unemployment claim. “The doctrine of issue preclusion, formerly
known as collateral estoppel, is designed to limit the relitigation of issues that have
been actually litigated in a previous action.” Dostal v. Strand, 2023 WI 6, ¶22,
405 Wis. 2d 572, 984 N.W.2d 382 (citation omitted). Among other things, issue
preclusion can be used “offensively” to foreclose a defendant from relitigating an
24
No. 2022AP1872
issue that the defendant unsuccessfully litigated in a prior action. See Michelle T.
v. Crozier, 173 Wis. 2d 681, 684 & n.1, 495 N.W.2d 327 (1993).10
¶53 An analysis of issue preclusion proceeds in two steps. Dostal, 405
Wis. 2d 572, ¶23. The first step considers whether the doctrine of issue preclusion
can, as a matter of law, be applied. Id.; see also Aldrich v. LIRC, 2012 WI 53,
¶¶91-92, 341 Wis. 2d 36, 814 N.W.2d 433 (analysis of the first step is a question
of law and is reviewed de novo by an appellate court). If so, the court then
determines whether it “comports with principles of fundamental fairness” to apply
the doctrine based on the court’s consideration of several non-exhaustive factors.
Estate of Rille v. Physicians Ins. Co., 2007 WI 36, ¶38, 300 Wis. 2d 1, 728
N.W.2d 693; Dostal, 405 Wis. 2d 572, ¶23.
¶54 Under the first step, we inquire “whether there is an identity of
issues in the two actions,” Kenyon v. Kenyon, 2004 WI 147, ¶11, 277 Wis. 2d 47,
690 N.W.2d 251, and whether the issue of fact or law that a party seeks to
preclude from relitigation “was actually litigated and determined in the prior
proceeding” and “was essential to the judgment.” Dostal, 405 Wis. 2d 572, ¶24;
Lindas v. Cady, 183 Wis. 2d 547, 559-60, 515 N.W.2d 458 (1994) (looking to the
pleadings in both cases to determine whether an issue was “actually litigated”).11
10
Apple Wellness argues that Knott has forfeited any objection to the circuit court’s
decision not to instruct the jury on this issue because Knott did not request that a specific
instruction be provided. We disagree. Under WIS. STAT. § 805.13(4), an objection is all that is
required to preserve the claim of error for appeal; Knott raised the issue of issue preclusion on at
least two occasions and then objected to the court’s ultimate decision to not instruct the jury on
that issue. Therefore, Knott has preserved his argument for appellate review.
11
This stands in contrast to claim preclusion, which extends to all claims that either were
or could have been asserted in the previous litigation. Lindas v. Cady, 183 Wis. 2d 547, 559, 515
N.W.2d 458 (1994).
25
No. 2022AP1872
¶55 Knott contends that the DWD already decided several issues in the
unemployment case that should have been given preclusive effect in the jury’s
consideration of his wrongful-discharge-in-violation-of-public-policy case. He
argues that the circuit court should have instructed the jury to give preclusive
effect to DWD’s legal conclusion that Knott “was not discharged for misconduct”
or for “substantial fault connected with [his] employment.”12 He also argues that
the court should have instructed the jury to give preclusive effect to several of
DWD’s evidentiary findings, which collectively amount to findings that the
evidence presented at the unemployment hearing did not persuade DWD that
Knott intended to “falsify” his time records or violate one of Apple Wellness’s
reasonable workplace rules.13 Notably, Knott does not argue that the circuit court
should have instructed the jury regarding other findings that DWD made,
including its finding that Apple Wellness discharged Knott “for ‘falsifying’” and
“changing” his time entries “without authority,” or its finding that Apple Wellness
“may have been dissatisfied with [Knott’s] unusual conduct” in altering the
entries. Although these determinations are more directly pertinent to the issues
12
Although Knott describes these determinations as factual findings, our cases describe
the determinations that an employee’s conduct does or does not constitute misconduct or
substantial fault as legal conclusions that are informed by factual findings. See Operton v. LIRC,
2017 WI 46, ¶49, 375 Wis. 2d 1, 894 N.W.2d 426 (describing the determination that employee
was discharged for substantial fault as a legal conclusion); Patrick Cudahy Inc. v. LIRC, 2006
WI App 211, ¶8, 296 Wis. 2d 751, 723 N.W.2d 756 (describing the determination that employee
was discharged for misconduct as a legal conclusion that is reviewed de novo on appeal).
13
These specific evidentiary findings included that there was “no reliable evidence”
demonstrating that Knott “reported working when he was not”; that Knott “plausibly explained
how he recreated his time based on activities historically recorded in [Apple Wellness’s]
database”; that Apple Wellness’s “suggestion” that Knott’s “checkout times should match the
time of his last-recorded work event [was] unreasonable”; that, with regard to some of the altered
time entries, Knott “did nothing more than enter checkout times that were previously absent”; that
Knott “had previously been paid for the days he adjusted, and his base pay was the same each
week, no matter how many hours were reported”; and that Knott had previously made
“retrospective corrections to certain [time entries] with [Apple Wellness’s] approval.”
26
No. 2022AP1872
that are essential to this case, Knott does not argue that those determinations
should have been given preclusive effect.
¶56 We conclude that there is not an “identity of issues” between the
legal issues decided by DWD and the legal issues pertaining to this wrongful-
discharge-in-violation-of-public-policy claim. Knott’s unemployment claim
turned on whether his alleged conduct constituted misconduct or substantial fault;
by contrast, his wrongful discharge claim turns on whether Knott’s alleged
conduct was the reason Apple Wellness terminated his employment, or whether
that asserted reason was pretextual.
¶57 To further expand on our conclusion, Apple Wellness’s burden at the
unemployment hearing was to demonstrate that Knott engaged in “misconduct” or
“substantial fault.” To that end, DWD required Apple Wellness to prove that
Knott had falsified records because he “intended to violate the integrity” of the
payroll system; that his conduct evinced “a willful, intentional, or substantial
disregard of [Apple Wellness’s] interests”; or that Knott violated one of Apple
Wellness’s “reasonable requirements” about which he had previously been
warned. Apple Wellness failed to make those showings, but that is not dispositive
of the separate question of whether Apple Wellness discharged Knott because of
the retrospective alterations. Even if Knott’s alterations did not constitute
misconduct or substantial fault, there was evidence at trial from which the jury
could have concluded that Apple Wellness did in fact discharge Knott for making
those alterations. Therefore, there is no identity of legal issues in these two
actions.
¶58 Knott nevertheless argues that there is an identity of factual issues
between the two actions: DWD made several findings pertaining to the nature and
27
No. 2022AP1872
extent of Knott’s alterations and there was testimony and argument on that topic at
Knott’s wrongful discharge trial. Based on DWD’s findings, he asserts that
DWD’s factual determinations should be preclusive; that the circuit court erred in
declining to instruct the jury it was bound by them; and that he was prejudiced by
the court’s decision not to do so because DWD’s factual determinations
“eliminate[ed]” Apple Wellness’s asserted justification for terminating Knott’s
employment.
¶59 Knott’s arguments do not provide a ground for reversal. Among
other things, Knott cannot show prejudice. Even if a jury were instructed to accept
as true DWD’s factual determinations—which collectively amount to a finding
that Knott did not intentionally “falsify” records, or break a rule of employment
about which Knott had notice—that does not preclude the jury from finding that
Apple Wellness terminated Knott because it was dissatisfied with his unusual
conduct in altering his time entries after the fact. Indeed, nearly all of the
evidence presented on these points at trial was consistent with DWD’s findings,
and the jury still found that Knott was not discharged in violation of public
policy.14
14
We note one unusual aspect of Knott’s argument about the issue preclusion doctrine,
and how he raised it in this case. The doctrine of issue preclusion is frequently raised in the
context of a dispositive motion or a motion in limine that seeks to prevent the introduction of
evidence at trial that contradicts the resolution of issues that have already been litigated. See
Lindas, 183 Wis. 2d 547, 559-60; Dostal v. Strand, 2023 WI 6, ¶¶13-14, 405 Wis. 2d 572, 984
N.W.2d 382 (granting summary judgment based on issue preclusion); Estate of Rille v.
Physicians Ins. Co., 2007 WI 36, ¶¶19-26, 300 Wis. 2d 1, 728 N.W.2d 693 (same); Ambrose v.
Continental Ins. Co., 208 Wis. 2d 346, 348-49, 560 N.W.2d 309 (Ct. App. 1997) (addressing a
motion in limine to preclude a litigant from “producing any evidence contradicting [a] fact that”
was previously decided in an earlier case); Michelle T. v. Crozier, 173 Wis. 2d 681, 684-86, 495
N.W.2d 327 (1993) (addressing a motion in limine requesting that the defendant be collaterally
estopped from testifying in a manner that would contradict the verdict that was rendered in a prior
criminal proceeding). Here, Knott did not seek summary judgment on the basis of issue
preclusion, nor did he file a motion in limine seeking to preclude the admission of any evidence
(continued)
28
No. 2022AP1872
¶60 For all these reasons, we conclude that Knott does not identify any
error with the jury instructions that warrants reversal.
By the Court.—Judgment affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.
that was contrary to any fact that was found by DWD. Knott cites no authority supporting the
proposition that issue preclusion is available when the party seeking preclusion has not actually
sought to prevent issues from being relitigated, but has instead, following the presentation of trial
evidence on those issues, requested an instruction that the jury is bound by the determinations of
another fact finder. However, we do not resolve Knott’s argument on issue preclusion on this
basis, and we instead resolve it based on the analysis in the text.
29