Cases

STATE OF WISCONSIN CIRCUIT COURT

JEROLD J. MACKENZIE,
314 White Pine Road
Delafield, W1 53018-1124

Plaintiff,

v.

MILLER BREWING COMPANY,
a Wisconsin corporation Registered Agent:
William G. Schmus
3939 West Highland Boulevard
Milwaukee, WI 53208

PATRICIA G. BEST,
W130 S6952 Camilla Court
Muskego, WI 53150

ROBERT L. SMITH
318 East Acacia Road
Fox Point, WI 53217

Defendants.

COMPLAINT

Case No. Case

Code NO.

Now comes plaintiff, Jerold. J. Mackenzie, by his attorneys, Gerald P. Boyle, S.C. and Michael A.I.
Whitcomb, and as and for a complaint against defendants, Miller Brewing Company, Patricia G.
Best, and Robert L. Smith alleges and shows to the court as follows:

General Allegations

1) Plaintiff, Jerold J. Mackenzie, is an adult resident of the state of Wisconsin and resides at 314
White Pine Road, Delafield, Wisconsin.

2) Defendant, Miller Brewing Company (hereinafter “Miller”), is a corporation duly organized under
the laws of the state of Wisconsin, with principle offices located at 8939 West Highland Boulevard,
Milwaukee, Wisconsin.

3) Defendant, Patricia G. Best (hereinafter “Best”) is an adult resident of the state of Wisconsin and
resides at w130 S6952 Camilla Court, Muskego, Wisconsin.

4) Defendant, Robert L. Smith (hereinafter “Smith”) is an adult resident of the state of Wisconsin and
resides at 318 East Acacia Road, Fox Point, Wisconsin.

5) In April 1974, plaintiff moved from Seattle, Washington to Great Falls, Montana to accept a
grade level 7 area manager position with Miller.

6) In June 1976, plaintiff moved from Great Falls, Montana to Denver, Colorado to accept a
promotion to grade level 5 regional administrator position with Miller.

7) In June 1977, plaintiff moved from Denver, Colorado to Cincinnati, Ohio to accept a promotion
to grade level ll regional sales manager position with Miller.

8) In February l979, plaintiff moved from Cincinnati, Ohio to Milwaukee, Wisconsin to accept a
promotion to grade level l2 sales development manager position with Miller.

9) In October 1979, plaintiff moved from Milwaukee, Wisconsin to Washington, D.C. to accept a
promotion to grade level la regional manager position with Miller.

10) In April 1382, plaintiff moved from Washington, D.C. to Milwaukee, Wisconsin to accept a
promotion to executive grade level 14 sales services and development manager position with Miller.
In this position, plaintiff managed three departments: distributor services, field sales services, and
sales development. Plaintiff reported to the sales administration and planning director, H.I.
Wiensheim, who reported to the vice president of sales, Leonard J. Goldstein. See Exhibit 1 which is
attached hereto and incorporated herein by this reference.

11) In May 1984, Miller conducted a reduction of manpower which included reorganization of
plaintiff’s area whereby the field sales services department was merged with the distributor services
department. See Exhibit 2 which is attached hereto and incorporated herein by this reference.

12) In October 1987, the sales administrative department again was reorganized. Plaintiff retained
management of distributor and field sales services , and sales development was assigned to William
W. Glickert as market development manager. See Exhibit 3 which is attached hereto and
incorporated herein by this reference. At this time, the sales administration and planning director,
Smith, advised plaintiff that his executive grade level 14 was not affected by the reorganization, and
that the reorganization would permit plaintiff to devote his time exclusively to distributor and field
services, which were of significant importance to Miller at that time. Plaintiff was not informed by
Smith that his position as distributor and field sales services manager was evaluated to be grade level
13.

13 ) In February 1988, the sales administration department again was reorganized. see Exhibit 4
attached hereto and incorporated herein by this reference.

14) In 1989, the sales administrative department again was reorganized. See Exhibit 5 attached
hereto and incorporated herein by this reference.

15) In March l990, the sales administrative department again was reorganized subsequent to a
Boston Consulting Group study. Plaintiff retained management of distributor services and field sales
services, but reported to Paul J. Zielinski, director of the new distribution management department.
See Exhibit 6 attached hereto and incorporated herein by this reference. At this time, Paul J. Zielinski
committed to assisting plaintiff in reaching his expressed goal of becoming a director for Miller.

16) In December 1990, Sandra K. Davies was appointed client services manager in information
systems to liaison with marketing. In January l991, Sandra K. Davies was assigned to work with
plaintiff to develop an automated market survey system. At this time plaintiff was in the advanced
stages of developing a prototype model for an automated market survey system as a support
platform for the Miller Masters program administered by plaintiff to recognize distributor
performance excellence. The automated market survey system, later named Automated In-Market
Survey (AIMS), incorporated handheld and laptop computer technology. Plaintiff developed the
software design and specifications for AIMS.

17) In February 1991, a computer mapping package was acquired for distribution management upon
plaintiff’s recommendation.

18) On February 7, 1992, Miller authorized the use of AIMS in the sales division. on February 17,
1992, plaintiff was removed from the AIMS project by Paul J. Zielinski. Paul J. Zielinski wanted
plaintiff to devote full time to completing the mapping package.

19) In May 1992, plaintiff was assigned to a task force for distributor performance, one of the
initiatives created as a result of recommendations from the Boston Consulting Group. See Exhibits 7
and 8 attached hereto and incorporated herein by this reference.

20) On August 17, 1992, plaintiff was first advised by Miller that his executive grade l. position had
been “grandfathered” in 1987. Plaintiff was further advised by Smith that his position would be
changed from executive grade 14 to grade 13. See Exhibit 9 attached hereto and incorporated herein
by this reference.

21) On October 16, 1992, the Boston Consulting Group distributor performance task force leaders,
Thomas J. Cardella and Charles R. Teal, recommended to the Boston Consulting Group steering
committee and John N. MacDonough, President of Miller, that the distributor performance initiative
be provided permanent status with Miller and be assigned to plaintiff. It was recommended further
that plaintiff retain management of distributor and field services, be provided additional personnel, be
appointed director of the new department, and be reassigned from business development under
Smith to sales under Thomas A. Koehler. The steering committee and John N. MacDonough
concurred with the recommendation. Subsequently however because of the vociferous objections of
Smith, John N. MacDonough requested additional time to consider the recommendation.

22) 0n October 27, 1992, plaintiff was placed on special assignment to support the marketshare
achievement plan, to complete the programming of distributor territories into the mapping package,
and to establish the procedure for programming and maintaining the distributor territories in the
mapping package. Plaintiff was relieved of management responsibilities for distributor and field sales
services. See Exhibit 10 attached hereto and incorporated herein by this reference.

23) On December 3, 1992, plaintiff was transferred to the sales division as distributor information
manager to complete the marketshare achievement plan which included the AIMS project.
Thereafter, plaintiff presented to Thomas A. Koehler, vice-president of sales, his plan to reorganize
field sales in a more sales productive and cost effective manner. The plan was endorsed by Thomas
A. Koehler who established a task force lead by plaintiff to implement the plan.

24) In January 1993, plaintiff was assigned to report to David A. Goulet, sales administration and
analysis director. In February 1993, three coordinator positions were created to support the
marketshare achievement plan. See Exhibit 11 attached hereto and incorporated herein by this
reference. Thereafter a marketshare achievement plan training program was conducted attended by
Michael J. Mazzoni, a corporate organization consultant retained by Miller.

25) In early March 1993, a Boston Consulting Group task force was created merging plaintiff’s
reorganization plan with the consultant responsibilities of Michael J. Mazzoni. The task force was to
study and implement plaintiff’s reorganization plan which was named Service 2000.

26) On March ‘9, 1993 at about 7:00 a.m., plaintiff was conversing with Best, the distributor services
manager, with whom plaintiff had worked since 1990. See Exhibit 12 attached hereto and
incorporated herein by this reference. During the course of early morning casual conversation, plaintiff
asked Best if she had seen the Seinfeld television program, a situational comedy, which was
broadcast at 8:00 p.m. on March 18, 1993. Miller advertisements were broadcast during the
program. Best had not seen the program. Plaintiff advised that he was surprised that the program was
not censored because it involved Seinfeld trying to remember the name of a woman he was dating.
All Seinfeld could remember was that the women’s name rhymed with a female body part. At the end
of the Seinfeld show, Seinfeld announced that the woman’s name was Delores, About an hour later,
plaintiff, Best and Robert A. Davis also discussed the Seinfeld program. They all were amazed that
the Seinfeld program was not censored.

27) On March 24, 1993 at about 7:00 a.m., plaintiff stopped at Best’s office for an early morning
chat. At that time, Best advised plaintiff that the discussion of the Seinfeld program with her was
embarrassing to her. Plaintiff apologized to Best, and expressed his surprise at her alleged
embarrassment because of her frequent use of lewd references to male body parts.

28) On March 25, 1993 at about 10:00 a.m., plaintiff was directed to Miller’s law library where he
was interviewed by Albert R. Butler of Miller’s legal department, George K. Whyte, Jr. of the law
firm of Quarles & Brady, and Eric Pennebaker from Miller’s equal opportunity office. Plaintiff was
questioned about his conversation with Best about the Seinfeld program.

29) On March 25, 1993 shortly before noon, plaintiff was directed again to Miller’s law library at
which time he was terminated. Shortly thereafter, Joseph N. Culpepper was assigned to plaintiff’s
former position of distributor information manager. See Exhibit 13 attached hereto and incorporated
herein by this reference.

30) In March 1993, plaintiff recommended a plan of corporate organization for Miller to consultant
Michael J. Mazzoni, which was implemented by Miller.

31) On May 12, 1993, plaintiff was retained by Miller as a consultant working for Michael J.
Mazzoni. Plaintiff has been a consultant for Miller since that time.

32) On May 17, 1993, it was announced that Miller employees who were involved in plaintiff’s
automated in-market survey (AIMS) project would receive the Philip Morris Chairman’s Award for
their work on the automated in-market survey project. See Exhibit 14 attached hereto and
incorporated herein by this reference.

33) On June 16, 1993, Molson U.S.A., a wholly owned subsidiary of Miller, advised plaintiff that
Miller refused to give Molson U.S.A. permission to hire plaintiff.

34) on August 23, l993, Warren H. Dunn retired as chairman and chief executive officer of Miller.
John N. MacDonough was promoted to replace Warren H. Dunn, and John D. Bowlin was named
president of Miller replacing John N. MacDonough. See Exhibits 15 and 16 attached hereto and
incorporated herein by this reference.

35) On October 6, 1993, Michael J. Mazzoni asked John N. MacDonough and John D. Bowlin to
authorize Molson U.S.A. to hire plaintiff. John N. MacDonough refused, and advised that reversing
the termination of plaintiff because of the harassment charge may adversely affect Miller.

FIRST CAUSE OF ACTION

Intentional Misrepresentation Against Smith and Miller

36) Incorporated herein by this reference are the above paragraphs 1-35.

37) When Miller “grandfathered” plaintiff’s position in October 1987, plaintiff’s further career
advancement with Miller was foreclosed.

38) In October 1987, when the sales administrative department again was reorganized, Miller had a
duty to disclose to plaintiff that plaintiff’s executive grade 14 position had been “grandfathered”, and
that plaintiff’s position as distributor and field sales services manager was evaluated to be grade level
13.

39) In October 1987, Smith intentionally misrepresented to plaintiff the [act that plaintiff’s executive
grade level 14 was not affected by the reorganization.

40) In October 1987, Smith and Miller failed to disclose to plaintiff that his executive grade 14
position had been “grandfathered” with the intent to deceive and induce plaintiff to act on it by
continuing his employment with Miller to plaintiff’s pecuniary damage.

41) Had Miller disclosed to plaintiff that his executive grade 14 position had been “grandfathered” in
October of 1987, plaintiff would have pursued other employment because plaintiff ‘s further career
advancement with Miller was foreclosed.

42) Had Smith truthfully represented to plaintiff the fact that plaintiff’s executive grade level 14 was
affected by the reorganization on October of 1987 by “grandfathering” plaintiff’s executive grade 14
position, plaintiff would have pursued other employment because plaintiff’s further career
advancement with Miller was foreclosed.

43) Plaintiff believed and relied on the misrepresented fact that his executive grade 14 position had
not been “grandfathered” in October of 1987 to plaintiff’s pecuniary damage.

44) Miller and Smith are liable to plaintiff for damages for intentional misrepresentation.

SECOND CAUSE OF ACTION

Tortious Interference with Prospective Contract against Smith

45) Incorporated herein by this reference are the above paragraphs 1-44.

46) In October of 1992, Smith intentionally and improperly interfered with plaintiff’s prospective
contractual relationship with Miller as director of a new department for the distributor performance
initiative and distributor and field services under sales.

47) Smith, improperly motivated, intentionally and for unworthy and selfish purposes induced Miller
not to adopt the October 16, 1992 recommendation of the Boston Consulting Group distributor
performance task force leaders, Thomas J. Cardella and Charles R. Teal, to the Boston Consulting
Group steering committee and John N. MacDonough, President of Miller, that the distributor
performance initiative be provided permanent status with Miller and be assigned to plaintiff.

48) Smith is liable to plaintiff for the pecuniary damage to plaintiff resulting from the loss of benefits
plaintiff would have received as director of the new department recommended to Miller.

THIRD CAUSE OF ACTION

Tortious Interference with Contract Against Best

49) Incorporated herein by this reference are the above paragraphs 1-48.

50) Best improperly induced Miller to terminate plaintiff by fraudulently misrepresenting to Miller that
she felt harassed by plaintiff’s March l9, 1993 conversation with her regarding the Seinfeld program.

51) On or about March 25, 1993, Best acted with the intention to interfere with the employment
contract of plaintiff with Killer by fraudulently misrepresenting to Miller that she felt harassed by
plaintiff’s March l9, 1393 conversation with her regarding the Seinfeld program in such a fashion and
for such purpose that Best knew that plaintiff would be terminated by Miller, or that plaintiff’s
termination was substantially certain to occur.

52 ) Best had no purpose or desire independent of intentionally causing the termination of plaintiff by
exerting moral pressure on Miller in fraudulently misrepresenting to Miller that she felt harassed by
plaintiff’s March 19, 1993 conversation with her regarding the Seinfeld program.

53 ) Best is liable to plaintiff for the pecuniary loss resulting to plaintiff by Miller’s termination of
plaintiff on March 25, 1993.

FOURTH CAUSE OF ACTION

Public Policy Wrongful Termination Against Miller

54) Incorporated herein by this reference are the above paragraphs 1-53.

55) This cause of action is supported by a good faith argument for an extension, modification and/or
reversal of existing law.

56) Miller terminated plaintiff on March 25, 1993 in response to the informal complaint/charge of
Best that she felt harassed by plaintiff’s March 19, 1993 conversation with her regarding the Seinfeld
program.

57) Miller did not believe that the informal complaint/charge of Best that she felt harassed by
plaintiff’s March 19, l993 conversation with he’ regarding the Seinfeld program was cause to
terminate plaintiff.

58) Miller believed that the termination of plaintiff was necessary to avoid or limit Miller from future
liability for complaints/charges of harassment.

59) An employee terminated because of mere allegations of harassment is foreclosed from securing
substantially similar employment .

60) An employer cannot be held to have notice of unlawful harassment of an employee where the
employer conducts a good faith investigation of previous alleged complaints/charges of unlawful
harassment by the employee, and reasonably concludes in good faith that such allegations are untrue,
unfounded or unsubstantiated.

61) It is the policy of the state of Wisconsin that an employee cannot be terminated where the
employer conducts a good faith investigation of a complaint/charge of unlawful harassment by the
employee, and reasonably concludes in good faith that such allegations are untrue, unfounded or
unsubstantiated.

62) Miller breached an implied contract provision with plaintiff that Miller will not discharge plaintiff
on a harassment complaint/charge for which Miller cannot be held liable.

63) Miller is liable to plaintiff for the pecuniary loss resulting to plaintiff by Miller’s termination of
plaintiff on March 25, 1993.

WHEREFORE, plaintiff demands judgment against defendants, jointly and severally, as follows:

A) Pecuniary damages to be determined at trial;

B) Punitive damages;

C) Costs, disbursements and attorney fees, and such other relief as the court may deem just and
proper.

Dated at Milwaukee, Wisconsin this____ 1994.

GERALD P. BOYLE, S.C. and
LAW OFFICES OF MICHAEL A.I. WHITCOMB
Attorneys for Plaintiff

By:______
Gerald P. Boyle State Bar No.

By:____________
Michael A.I. Whitcomb
State Bar No. 1016561

P.O. ADDRESS

Gerald P. Boyle, S.C.
1124 West Wells Street
Milwaukee, WI 53233
414-271-1717

Law Offices of Michael A.I. Whitcomb
Suite 510
633 West Wisconsin Avenue
Milwaukee, WI 53203-1918
414-277-8384