May 10 2016
DA 15-0400
Case Number: DA 15-0400
IN THE SUPREME COURT OF THE STATE OF MONTANA
2016 MT 103
LINDSEY MOE,
Plaintiff and Appellant,
v.
BUTTE-SILVER BOW COUNTY,
Defendant, Cross-Appellant and Appellee.
APPEAL FROM: District Court of the Second Judicial District,
In and For the County of Butte-Silver Bow, Cause No. DV 2013-354
Honorable Ray Dayton, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Frederick F. Sherwood, Morrison, Sherwood, Wilson & Deola PLLP,
Helena, Montana
For Appellee:
Cynthia L. Walker, Emma R. Armstrong-Blanchard, Poore, Roth &
Robinson, P.C., Butte, Montana
Submitted on Briefs: March 16, 2016
Decided: May 10, 2016
Filed:
__________________________________________
Clerk
Justice Beth Baker delivered the Opinion of the Court.
¶1 Lindsey Moe appeals an order of the Second Judicial District Court, Silver Bow
County, granting partial summary judgment in favor of Butte-Silver Bow County
(County). The County cross-appeals the District Court’s partial denial of its summary
judgment motion.
¶2 We restate the issues as follows:
1. Whether the County is entitled to summary judgment on Moe’s claim that it
violated Montana’s open meeting laws.
2. Whether the County is entitled to summary judgment on Moe’s claim that it
violated Montana’s public participation laws.
3. Whether the District Court erred in granting summary judgment in the
County’s favor with respect to Moe’s 42 U.S.C. § 1983 claim.
4. Whether the District Court erred in ruling as a matter of law that the County
did not discharge Moe in violation of its own policies or for refusing to violate
public policy.
5. Whether the District Court correctly concluded that Moe is entitled to a trial on
her claim that the County terminated her employment without good cause.
¶3 We affirm on all issues.
PROCEDURAL AND FACTUAL BACKGROUND
¶4 Moe was appointed as the human resources director for the County beginning in
2009. In early 2013, employees complained to the County Chief Executive Matt Vincent
regarding Moe’s job performance and behavior. Vincent and the County Attorney,
Eileen Joyce, met with Moe in February 2013 to informally counsel Moe regarding her
performance issues.
2
¶5 In April 2013, Vincent learned that Moe had failed to disclose to him her
knowledge of potential wage claims against the County.1 During that same month, one of
Moe’s subordinates filed a productive work environment/workplace harassment
complaint against Moe. As a result, Vincent placed Moe on administrative leave in May
2013, pending the outcome of an investigation by an independent consultant. During the
investigation Moe was represented by counsel, participated in meetings with Vincent, and
provided written responses to the issues being investigated.
¶6 The investigation established that the productive work environment/workplace
harassment complaint was unsubstantiated. The investigation revealed, however, that
other issues were substantiated relating to Moe’s inappropriate conduct and job
performance deficiencies.
¶7 Pursuant to the County Charter, the Chief Executive has the power to remove a
non-elected department head for just cause with advice and consent of the Council of
Commissioners (Council). Following the investigation, Vincent determined that Moe
should be terminated and requested a special meeting of the Council to obtain its advice
and consent for the termination. Moe was provided with the written documents and
reasons for her termination. Vincent met with Moe and her attorney in order to give Moe
an opportunity to provide any additional information or documents in response to the
1
The potential wage claims arose from provisions in the County’s employee compensation plans
derived from a classification and compensation study by Fox Lawson and Associates, a
Minnesota-based compensation consulting firm. The parties refer to the plan as the “Fox
Lawson Pay Plan” and we will do the same.
3
investigation results. The Council was given the investigative report, along with the
documents Moe submitted in response, for review in advance of the meeting.
¶8 Prior to the meeting, Vincent announced his intention to close the portion of the
meeting concerning the reasons for his decision to terminate Moe. Joyce informed Moe
that the meeting would be closed and that Moe would not be allowed to speak at the
meeting. In response, Moe waived her right of privacy and requested that the meeting
remain open.
¶9 At the beginning of the meeting on October 16, 2013, Vincent, as the presiding
officer, declared that he was closing the meeting based on his determination that the
privacy rights of County employees, including the employee who had made the
workplace harassment complaint and the employees who provided information during the
investigation, outweighed the merits of public disclosure. Vincent did not identify the
employees with the alleged privacy interests or give those employees an opportunity to
waive their privacy interests. Moe and her attorney were allowed to remain at the
meeting, but were not allowed to speak.
¶10 During the closed portion of the meeting, Vincent and Joyce provided the Council
with reasons for Moe’s termination. When the meeting was re-opened the Council
granted consent to terminate Moe’s employment. On October 18, 2013, Vincent sent a
termination notice to Moe advising her that she was discharged, and included a copy of
the County’s grievance policy.
4
¶11 Moe submitted a grievance with the County on November 4, 2013. On
November 15, 2013, Moe filed a complaint alleging three counts against the County:
1) violation of Montana’s open meeting laws, Article II, Section 9 of the Montana
Constitution and § 2-3-203, MCA; 2) violation of Article II, Section 8 of the Montana
Constitution and §§ 2-3-101 through -114, MCA, relating to the right of citizen
participation in government operations; and 3) violation of due process and equal
protection rights under the Fourteenth Amendment to the United States Constitution,
claiming a right to recover damages pursuant to 42 U.S.C. § 1983. In January 2014, the
County denied Moe’s grievance on the ground that she failed to provide a detailed
statement of the disputed issues and relevant facts that explain what specific policies and
procedures she alleged were violated and the specific remedy she sought through the
grievance process. Moe amended her complaint in March 2014, adding a fourth count:
4) violation of the Montana Wrongful Discharge from Employment Act, §§ 39-2-901
through -915, MCA.
¶12 After the County filed its answer to her amended complaint, Moe moved for
partial summary judgment on the issue of liability on all four counts. The County
opposed Moe’s motion and filed its own motion for summary judgment on all counts.
During the January 16, 2015 summary judgment hearing, the County introduced a copy
of the independent investigator’s fact-finding report relating to Moe’s termination. The
District Court admitted the report provisionally. After the hearing, the court ordered that
the report be filed under seal. On May 27, 2015, the District Court issued an order
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granting summary judgment to the County on the first three counts. On the fourth count,
the court granted the County’s motion with respect to Moe’s claim that the County
violated § 39-2-904(1)(a) and (c), MCA. The court denied the County’s motion with
respect to Moe’s claim that the County violated § 39-2-904(1)(b), MCA, holding that
factual questions remained as to whether the County had good cause for Moe’s
termination.
¶13 Moe moved for certification of the summary judgment order as final pursuant to
M. R. Civ. P. 54(b). The District Court granted Rule 54(b) certification on June 30,
2015. Noting that the County did not oppose Moe’s motion for certification, we
determined that the District Court’s certification order satisfied the requirements of M. R.
Civ. P. 54(b) and M. R. App. (6)(6). Moe v. Butte-Silver Bow Cnty., DA 15-0400, Or.
(Mont. July 14, 2015). Both parties appeal.
STANDARDS OF REVIEW
¶14 We review de novo a district court’s grant or denial of summary judgment.
Pilgeram v. GreenPoint Mortg. Funding, Inc., 2013 MT 354, ¶ 9, 373 Mont. 1, 313 P.3d
839. Summary judgment is appropriate when the moving party demonstrates both the
absence of any genuine issues of material fact and entitlement to judgment as a matter of
law. M. R. Civ. P. 56(c)(3); Anderson v. BNSF Ry., 2015 MT 240, ¶ 15, 380 Mont. 319,
354 P.3d 1248. Conclusory statements, speculative assertions, and mere denials are
insufficient to defeat a motion for summary judgment. Davis v. State, 2015 MT 264, ¶ 7,
381 Mont. 59, 357 P.3d 320. All reasonable inferences that may be drawn from the
6
offered evidence should be drawn in favor of the party opposing summary judgment;
however, summary judgment cannot be defeated by unsupported speculation. Baumgart
v. State, 2014 MT 194, ¶ 14, 376 Mont. 1, 332 P.3d 225. We review a district court’s
conclusions of law to determine whether they are correct and its findings of fact to
determine whether they are clearly erroneous. Pilgeram, ¶ 9.
DISCUSSION
¶15 1. Whether the County is entitled to summary judgment on Moe’s claim that it
violated Montana’s open meeting laws.
¶16 Moe claims that the decision to close a portion of the special meeting violated
Montana’s open meeting laws because the County failed to follow proper procedures in
determining whether the alleged privacy interests of the other employees outweighed the
merits of public disclosure. Moe argues that the employees who had alleged privacy
interests were “not even identified” and that there was “no analysis of what [the] alleged
privacy rights were.” Moe emphasizes that she had waived her privacy rights and that the
other employees were not given the same opportunity. Moe argues that Vincent made a
“blanket determination” that simply because other employees were involved “they
automatically had privacy interests that prevented any public discussion of any aspect of
the investigation.” According to Moe, “[s]uch an unprecedented rule would gut the Open
Meeting Laws.” As a result, Moe contends that the County should have identified the
other employees, stated why their privacy rights outweighed the merits of public
disclosure, and then given them a chance to waive those privacy rights.
7
¶17 In any event, Moe argues, the other employees’ protected privacy interests were
not implicated because none of their personnel records were discussed at the meeting.
According to Moe, “[a]t most, employee(s) accusations against Moe could have been
discussed, and these are not protected by a privacy right except that of [Moe].” In
addition, Moe argues that the District Court improperly based its decision on the idea that
public disclosure of workplace harassment and retaliation complaints may discourage
employees from pursuing such complaints. This idea, according to Moe, is at odds with
the law because “the only consideration that can defeat the public’s right to know is the
other constitutional right of individual privacy.” Moe claims that the District Court’s
holding erroneously makes it so the right to anonymously complain is superior to the
constitutional right to know.
¶18 Article II, Section 9 of the Montana Constitution establishes the public right to
know:
No person shall be deprived of the right to examine documents or to
observe the deliberations of all public bodies or agencies of state
government and its subdivisions, except in cases in which the demand of
individual privacy clearly exceeds the merits of public disclosure.
This provision is implemented by §§ 2-3-201 through -221, MCA. Section 2-3-203,
MCA, provides, “The presiding officer of any meeting may close the meeting during the
time the discussion relates to a matter of individual privacy and then if and only if the
presiding officer determines that the demands of individual privacy clearly exceed the
merits of public disclosure.” Section 2-3-203(3), MCA. The Montana Constitution
establishes the right to privacy in Article II, Section 10: “The right of individual privacy
8
is essential to the well-being of a free society and shall not be infringed without the
showing of a compelling state interest.” The competing interests of the right to privacy
and the right to know “must be balanced in the context of the facts of each case, to
determine whether the demands of individual privacy exceed the merits of public
disclosure.” Billings Gazette v. City of Billings, 2013 MT 334, ¶ 14, 372 Mont. 409, 313
P.3d 129 (citation and internal quotation marks omitted).
¶19 In conducting this balancing test, courts must first consider whether the
individual(s) whose privacy rights are at issue has “a subjective or actual expectation of
privacy, and if so whether society should recognize that the expectation is reasonable.”
Missoula Cnty. Pub. Schs. v. Bitterroot Star, 2015 MT 95, ¶ 11, 378 Mont. 451, 345 P.3d
1035. “Actual expectation of privacy is necessarily a question of fact that requires a
determination of whether the individual whose privacy is at issue had notice of possible
disclosure.” Billings Gazette, ¶ 18. Whether society is willing to recognize a privacy
expectation as reasonable is a question of law that requires consideration of “all relevant
circumstances, including the nature of the information sought.” Billings Gazette, ¶¶ 21,
26. It is reasonable for an employee to expect that matters communicated in private by
the employee to his or her employer normally would be kept confidential. Mont. Human
Rights Div. v. Billings, 199 Mont. 434, 442, 649 P.2d 1283, 1287-88 (1982). Public
disclosure of certain employee information “could impede candid communication
between employer and employee.” Billings Gazette, ¶ 26.
9
¶20 The District Court concluded that the employees who initiated the workplace
harassment complaints against Moe had individual privacy interests that society is willing
to recognize as reasonable. We agree. First, the employees who initiated the complaints
against Moe had an actual expectation of privacy. The County’s Productive Work
Environment/Harassment Prevention Policy (Policy 134) states, “A report filed under this
Policy, its investigation, the outcome of the investigation, and any action(s) taken relating
to a specific employee or employees is confidential.” Thus, the employees who initiated
the complaints against Moe and cooperated in the investigation did not have “notice of
possible disclosure” and therefore had an actual expectation of privacy based on Policy
134. Billings Gazette, ¶ 18.
¶21 In addition, the County employees’ actual expectations of privacy are ones that
society is willing to recognize as reasonable. The District Court determined that public
disclosure of workplace harassment and retaliation complaints may discourage
employees from pursuing such complaints. This determination is consistent with our
recognition of such privacy interests and our conclusions that society is willing to
recognize those privacy interests as reasonable. In Montana Human Rights Division, we
held that employees had a reasonable expectation that information contained in their
employment records would not be divulged “in an investigation or during a public
hearing in which the employee is only remotely involved.” Mont. Human Rights Div.,
199 Mont. at 443, 649 P.2d at 1288. In Billings Gazette, we undertook a lengthy review
of our prior decisions relating to the reasonableness of public employees’ expectations of
10
privacy when balanced against the public’s right know. Billings Gazette, ¶¶ 23-40. We
observed that employees reasonably would expect that their communications to the
employer regarding workplace misconduct “normally would be kept confidential.”
Billings Gazette, ¶ 47 (quoting Mont. Human Rights Div., 199 Mont. at 442, 649 P.2d at
1288) (internal quotation marks omitted). See also Bozeman Daily Chronicle v. Police
Dep’t, 260 Mont. 218, 228, 859 P.2d 435, 441 (1993) (holding that an accuser and
witnesses to an alleged incident have a subjective privacy interest which society is
willing to recognize as reasonable in an investigation focused on the accused). Here,
because the evidence supporting Vincent’s decision to terminate Moe was based in
significant part on information that had come from other County employees who were
only “remotely involved” in the reason for convening the October 16, 2013 Council
meeting, those employees had a reasonable expectation that their communications would
not be made public. Mont. Human Rights Div., 199 Mont. at 443, 649 P.2d at 1288.
¶22 Having found that the employees had reasonable expectations of privacy, we must
balance the employees’ right to privacy against the merits of public disclosure. Moe
argues that the public is entitled to know why Vincent and Joyce believed that Moe was
inadequate in her working relationship with Vincent, and that the public has an interest in
“discussion about the Fox Lawson [P]ay [P]lan study and a possible lawsuit that could
have arisen from it.”
¶23 Moe’s arguments are unpersuasive. In Billings Gazette, the newspaper sought
disclosure of documents detailing the investigation and discipline of Billings City
11
employees due to inappropriate computer usage. Billings Gazette, ¶ 1. We concluded
that the employees’ “reasonable expectation of privacy in their identities with regards to
internal disciplinary proceedings clearly outweighs the merits of public disclosure,” and
that although the information “may make interesting or sensational news copy,” “public
disclosure is not in the public interest.” Billings Gazette, ¶ 59. We noted that “[p]ublic
knowledge of the names of the individuals disciplined will not provide the public with
any greater opportunity to participate in the internal employment decisions of the City.”
Billings Gazette, ¶ 56.
¶24 For similar reasons, we conclude that the privacy interests of County employees
with regard to the internal complaint reporting and investigation in this case outweigh the
merits of public disclosure. The public, via news reporting outlets, already had received
information regarding Moe’s administrative leave and pending investigation. Contrary to
Moe’s contention, the Council meeting did not involve discussion of the substance of the
Fox Lawson Pay Plan or potential litigation. Rather, the closed portion of the meeting
concerned Vincent’s reasons for terminating Moe, based in part on information that
employees provided during an investigation that they had been led to believe was
confidential. We have observed that “general assertions that public disclosure will foster
public confidence in public institutions and maintain accountability for public officers are
not sufficient to establish a strong public interest.” Billings Gazette, ¶ 56 (citing
Missoulian v. Bd. of Regents of Higher Educ., 207 Mont. 513, 532, 675 P.2d 962, 972
(1984)). The portion of the meeting during which the Council voted to give consent to
12
Vincent’s termination decision was open to the public. Public knowledge of the
information gathered from other County employees during a personnel investigation
would undermine the County’s interest as an employer in encouraging candor and
willingness of its employees to bring legitimate complaints to the County’s Chief
Executive. As we recognized in Missoulian and Mont. Human Rights Div., the
promotion of candid communication between an employer and its employees is good
public policy. Missoulian, 207 Mont. at 533, 675 P.2d at 973; Mont. Human Rights Div.,
199 Mont. at 442-43, 649 P.2d at 1287-88. Protecting the confidentiality of such
communications helps to encourage employees not to remain silent during internal
investigations of workplace problems.
¶25 Further, the termination decision was premised in large part upon a multi-faceted
investigation comprising interviews with numerous County employees other than Moe.
The Council was provided with the investigation report, documenting workplace issues
involving employees of Moe’s department and other County employees; that report and
Moe’s responses to its findings were to be discussed at the meeting. The report disclosed
the identity of the employees interviewed, which would be evident in any discussion
about the issues. Therefore, it was not inappropriate for Vincent to close that discussion
to the public rather than to require him to repeatedly open and close the meeting as
particular elements of the investigation may have come up during the discussion. We
conclude that the District Court did not err in granting summary judgment in the
13
County’s favor with respect to Moe’s claim that the County violated Montana’s open
meeting laws.
¶26 2. Whether the County is entitled to summary judgment on Moe’s claim that it
violated Montana’s public participation laws.
¶27 Section 2-3-103, MCA, provides that “[e]ach agency shall develop procedures for
permitting and encouraging the public to participate in agency decisions that are of
significant interest to the public.” Section 2-3-103(1)(a), MCA. Before an agency
takes final action on an issue that is of significant interest to the public, the agency must
follow procedures to ensure adequate notice and assist public participation. Section
2-3-103(1)(a), MCA. “Procedures for assisting public participation must include a
method of affording interested persons reasonable opportunity to submit data, views, or
arguments, orally or in written form, prior to making a final decision that is of significant
interest to the public.” Section 2-3-111(1), MCA.
¶28 In Jones v. County of Missoula, 2006 MT 2, 330 Mont. 205, 127 P.3d 406, we
adopted the Attorney General’s definition of the term “significant public interest” as “any
non-ministerial decision or action of a county commission which has meaning to or
affects a portion of the community.” Jones, ¶ 16 (citation and internal quotation marks
omitted). A ministerial act is one “performed pursuant to legal authority, and requiring
no exercise of judgment.” Jones, ¶ 16. Public participation procedures are required
when a final decision is made. Sections 2-3-103, -111, MCA. See Jones, ¶¶ 9, 22
(holding that a county commission meeting where the county made the decision to allow
dependent coverage to domestic partners of county employees was of significant public
14
interest). Non-ministerial decisions that directly affect more than one person may be
considered of significant public interest. Jones, ¶¶ 18, 22 (holding that a county’s
decision to make dependent health care coverage available to domestic partners was of
significant public interest even though it affected only county employees).
¶29 In Jones, we also acknowledged that the topic at issue was of interest to the public
at large because of state and nation-wide media coverage relating to gay and lesbian
rights. Jones, ¶ 19. We noted that the hearing on proposed legislation that included a
provision for extending group insurance to domestic partners of state employees in civil
unions “brought hundreds of opponents to the Capitol.” Jones, ¶ 21 (citation and internal
quotation marks omitted).
¶30 Moe argues that her termination was of significant interest to the Butte public.
Moe points to newspaper articles concerning her termination to “show the degree of
public interest in [the] matter.” As such, Moe contends that the County was required
under §§ 2-3-103 and -111, MCA, to open the special meeting so that any member of the
public could have the opportunity to give input to the Council. Moe points out that “[t]he
right of public participation is available to all citizens, and not only to those who may be
the subject of the decision in question.” Moe acknowledges that if the discussion veered
into an area where the right of privacy outweighed the merits of public disclosure, then
that portion could have been closed to the public.
¶31 The County argues that it did not violate Montana’s public participation laws in
relation to Moe’s termination because the Council’s decision to give advice and consent
15
to Vincent only affected Vincent’s ability to fulfill the County Charter’s requirement to
obtain advice and consent for his decision. The County argues that the advice and
consent of the Council is not part of an employee’s pre-termination due process, which
concludes with the Chief Executive’s termination decision. According to the County,
employees are not afforded hearings to plead their case before the Council because an
advice and consent meeting is “merely a mechanism for the Council to confirm that the
Chief Executive followed the proper process in making his/her decision to appoint or
terminate a non-elected department head.” Therefore, according to the County, the
Council’s decision is not a matter of significant interest to the public requiring public
participation because “it does not have meaning to or affect a portion of the community.”
¶32 The District Court concluded that while the special meeting was non-ministerial,
the Council’s actions did not significantly affect the community as whole because its
decision to give advice and consent affected Vincent’s ability to terminate Moe “and
nothing more.” The District Court determined that the only direct impact of the
Council’s decision was on Vincent and Moe. The court noted that although the public
was not afforded the right to participate in this matter, Moe was given “ample
opportunity” prior to the meeting to participate in the investigation process.
¶33 We agree with the District Court. The special meeting was not “of significant
interest to the public,” § 2-3-103(1)(a), MCA, because it did not have “meaning to or
affect[] a portion of the community,” Jones, ¶ 16. As the County’s Chief Executive,
Vincent had the authority, pursuant to the County Charter, to terminate a non-elected
16
department head after the conclusion of the pre-termination process. During the pre-
termination process, Moe had the opportunity to present evidence to Vincent and meet
with him. The Council’s special meeting confirmed that Vincent followed the proper
steps, and it consented to his termination decision. Unlike Jones, the Council’s decision
did not directly affect anyone except Moe and Vincent. While news media reported
Moe’s termination, such coverage does not establish by itself that the closed portion of
the special meeting was of significant interest to the public. The meeting involved a
personnel decision affecting one County employee, and it was not the Council’s function
at that meeting to determine whether Moe would be discharged. Moreover, Moe’s
assertion that that she lacked the opportunity to participate in her pre-termination
processes is without merit. The record makes clear that Moe actively participated in
responding to the fact-finding investigation and provided her own arguments and
evidence in rebuttal. Accordingly, the District Court correctly concluded that the County
did not violate Montana’s public participation laws.
¶34 3. Whether the District Court erred in granting summary judgment in the
County’s favor with respect to Moe’s 42 U.S.C. § 1983 claim.
¶35 Moe argues that the County violated her due process rights under 42 U.S.C.
§ 1983 because she was not allowed to present her own evidence and arguments to the
Council during the special meeting and was denied the opportunity to rebut all evidence
and arguments that were made to the Council to justify her termination. Moe further
contends that the Council was given an “erroneous impression” as to what its role should
be because, according to Moe, it was told that it “had no independent obligation to
17
determine if it should give its advice and consent that [she] should be removed for just
cause, contrary to the plain language of [Art. IV, Section 4.02(d) of the County Charter].”
¶36 The County argues that Moe confuses the advice and consent process under the
County Charter with the due process requirements for the Chief Executive’s termination
decision. According to the County, Vincent afforded Moe extensive pre-termination
processes. The County argues that Moe was not entitled to address the Council because it
was not making the decision whether she should be terminated but rather “was simply
asked to confirm” Vincent’s decision.
¶37 The District Court concluded that Moe had a protected property interest in her
continued employment based on Art. IV, Section 4.02 of the County Charter, which
provides that the Chief Executive cannot terminate a non-elected department head until
the Chief Executive has demonstrated good cause for doing so. The court concluded,
however, that the County did not deprive Moe of her pre-termination due process rights.
The District Court found that Moe fully participated in the pre-termination investigation,
based on the following undisputed facts: Moe provided written and verbal responses to
Vincent concerning her alleged policy violations and performance deficiencies; Moe
received the independent investigator’s report and submitted a multiple-page written
response; Moe received a detailed explanation of the policy violations and substantiated
performance deficiencies; and Moe met with Vincent to provide him with any additional
verbal and written information he should take into consideration before making a final
decision.
18
¶38 Title 42, United States Code Section 1983 provides a cause of action for persons
deprived of constitutional rights by another person acting under color of state law. Mysse
v. Martens, 279 Mont. 253, 260, 926 P.2d 765, 769 (1996). Persons who have been
deprived of due process by government agents in the termination of employment may be
entitled to relief under 42 U.S.C. § 1983 if they have a property interest in their
employment. Hunter v. City of Great Falls, 2002 MT 331, ¶ 23, 313 Mont. 231, 61 P.3d
764.
¶39 We have held that when a government employer has, by administrative regulation,
limited its ability to terminate an employee without just cause, employees subject to that
scheme have a property interest in their continued employment, which is protected by due
process. Boreen v. Christensen, 267 Mont. 405, 416, 884 P.2d 761, 767 (1994). In this
context, due process requires “oral or written notice to the employee with an explanation
of the employer’s evidence and the opportunity for the employee to respond in
‘something less’ than a full evidentiary hearing before termination coupled with a full
post-termination hearing ‘at a meaningful time.’” Boreen, 267 Mont. at 410, 884 P.2d at
764 (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 545, 105 S. Ct. 1487,
1496 (1985)) (emphasis in original). “[T]he pretermination hearing need not definitively
resolve the propriety of the discharge. It should be an initial check against mistaken
decisions—essentially, a determination of whether there are reasonable grounds to
believe that charges against the employee are true and support the proposed action.”
19
Boreen, 267 Mont. at 410-11, 884 P.2d at 764 (citing Loudermill, 470 U.S. at 545-46,
105 S. Ct. at 1496).
¶40 Our review of the record convinces us that the District Court correctly applied the
law in ruling that Moe’s due process rights were protected. We agree that, pursuant to
Art. IV, Section 4.02 of the County Charter, Moe had a protected property interest in her
continued employment. That right, however, was not absolute and Moe could be
terminated for good cause with due process and with the Council’s advice and consent.
Moe does not contend that her post-termination due process rights were violated. As the
decision to terminate is vested in the Chief Executive, due process did not require that
Moe’s pre-termination opportunity to respond occur in the Council meeting. Moe’s
assertion that the Council was “misinformed” as to what “advice and consent” actually
meant is without merit. Art. IV, Section 4.02(d) does not impose an “independent
obligation” on the Council to determine whether termination was proper. Moe provides
no other relevant evidence or authority to support her contention.
¶41 As the District Court noted, the undisputed facts establish that Moe fully
participated in the pre-termination process. The opportunities afforded Moe to participate
in the pre-termination process, of which she fully availed herself, meet the required due
process standard. Moe received a copy of the independent investigator’s report, she
responded to the report, and she and her attorney met with Vincent on September 18,
2013, to present her arguments as to whether there were “reasonable grounds to believe
that charges against her [were] true and support[ed] the proposed action.” Boreen, 267
20
Mont. 405 at 410-11, 884 P.2d at 764. The undisputed facts establish that Moe received
“oral or written notice with an explanation of the employer’s evidence” and had the
opportunity to respond in “something less” than a full evidentiary hearing before her
termination. Boreen, 267 Mont. at 410, 884 P.2d at 764. Accordingly, the District Court
did not err in granting summary judgment in the County’s favor with respect to Moe’s
claim that the County violated 42 U.S.C. § 1983.
¶42 4. Whether the District Court erred in ruling as a matter of law that the County
did not discharge Moe in violation of its own policies or for refusing to violate public
policy.
¶43 Montana’s Wrongful Discharge from Employment Act provides that a discharge is
wrongful if:
(a) it was in retaliation for the employee’s refusal to violate public policy or
for reporting a violation of public policy;
(b) the discharge was not for good cause and the employee had completed
the probationary period of employment; or
(c) the employer violated the express provisions of its own written
personnel policy.
Section 39-2-904(1), MCA. Moe contends that her discharge was wrongful under all
three grounds set forth in § 39-2-904(1), MCA. The District Court granted summary
judgment against Moe with respect to her claims under § 39-2-904(1)(a) and (c), MCA.
Moe agrees that there are no genuine issues of fact but argues that the court should have
granted her—rather than the County—judgment as a matter of law.
¶44 Moe argues that her discharge was wrongful under § 39-2-904(1)(a), MCA,
because her termination was “in violation of the Montana Wrongful Discharge and Public
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Participation laws” and thus in violation of public policy. Moe contends that her
discharge was wrongful under § 39-2-904(1)(c), MCA, because the County violated three
of its written policies—Article IV, Section 4.02(d)(1) of the County Charter, and two
sections of the County’s Code of Ethics, entitled “Public participation” and “Open
Meetings.” As discussed, Art. IV, Section 4.02(d)(1) enables the Chief Executive to
remove non-elected department heads for just cause with the advice and consent of the
Council. Moe claims that, “as a matter of law,” the Council did not “truly” give effective
“advice and consent” because its action “was taken in violation of Montana’s Open
Meeting and Public Participation laws,” and because the Council was misinformed as to
what “advice and consent” actually meant. Moe contends that the County violated the
Code of Ethics provisions based on the same arguments she raises under Issues 1 and 2
above relating to open meetings and public participation.
¶45 In regard to § 39-2-904(1)(a), MCA, the County argues that Moe’s contentions are
insufficient to form the basis of a claim because Montana’s open meeting and public
participation laws do not constitute “public policies” as defined under the Wrongful
Discharge Act. Concerning § 39-2-904(1)(c), MCA, the County argues that neither the
County Charter nor its Code of Ethics ordinances constitute personnel policies under the
Wrongful Discharge Act. In any event, according to the County, Moe cannot show that
any alleged violations of the County’s personnel policies caused her termination. The
County claims that in the absence of a causal link between the alleged violations and her
termination, Moe’s claim fails.
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¶46 Based on its rejection of Moe’s open meeting, public participation, and due
process claims, the District Court determined that the County did not wrongfully
discharge Moe by virtue of violating either its own personnel policies or public policies.
¶47 With respect to Moe’s claims under § 39-2-904(1)(c), MCA, we have determined
already that the County did not violate Montana’s open meeting or public participation
laws and that the County’s termination procedures did not violate Moe’s rights to due
process. Accordingly, her claims that the County violated its Charter or Code of Ethics
provisions do not substantiate a claim for wrongful discharge under § 39-2-904(1)(c),
MCA. Because Moe’s wrongful discharge claim under § 39-2-904(1)(c), MCA, fails, it
cannot serve as the basis for her claim that the County violated public policy under
§ 39-2-904(1)(a), MCA. Moreover, Moe’s arguments with respect to § 39-2-904(1)(a),
MCA, do not correspond with the language of the statute. Moe argues that her
termination was in violation of public policy, but she provides no argument or evidence
that her discharge was in “retaliation” for her “refusal to violate public policy” or “for
reporting a violation of public policy.” Section 39-2-904(1)(a), MCA. We conclude that
the District Court was correct in granting summary judgment in favor of the County on
this issue.
¶48 5. Whether the District Court correctly concluded that Moe is entitled to a trial on
her claim that the County terminated her employment without good cause.
¶49 Section 39-2-904(1)(b), MCA, provides that a discharge is wrongful if it is not for
good cause. “Good cause” is defined as “reasonable job-related grounds for dismissal
based on a failure to satisfactorily perform job duties, disruption of the employer’s
23
operation, or other legitimate business reason.” Section 39-2-903(5), MCA. A legitimate
business reason is one that is “not false, whimsical, arbitrary, or capricious and one that
must have some logical relationship to the needs of the business.” Davis, ¶ 10 (citation
omitted). In applying this definition, it is important to take into account the “right of an
employer to exercise discretion over who it will employ and keep in employment.”
Davis, ¶ 10 (citation and internal quotation marks omitted).
¶50 Once an employer submits evidence of good cause for discharge, the employee
must submit evidence demonstrating either that the reason for the discharge is not “good
cause” in and of itself or that the given reason “is a pretext and not the honest reason for
the discharge.” Becker v. Rosebud Operating Servs., 2008 MT 285, ¶ 24, 345 Mont. 368,
191 P.3d 435 (citation and internal quotation marks omitted). If the undisputed facts
show “good cause” for discharge from employment, summary judgment is appropriate.
Davis, ¶ 14; Becker, ¶ 30.
¶51 On cross-appeal, the County argues that the undisputed facts establish that it had
good cause to terminate Moe’s employment and that we should reverse the District
Court’s denial of summary judgment and remand for entry of judgment in favor of the
County. The County claims that it terminated Moe’s employment based on her failure to
perform her job duties, disruption of County operations, and “other legitimate business
reasons.” The County points to employee complaints regarding Moe’s job performance
and behavior, Moe’s unresponsiveness to Vincent’s requests for further communication,
Moe’s failure to inform Vincent of potential wage claims—including one in which Moe
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stood to gain the most significant financial benefit—and Moe’s participation in a
conference call in her County office during working hours with an attorney who was
representing the employees pursuing potential wage claims against the County. Moe’s
conduct, according to the County, constituted a violation of the duty of public trust and
“undermined [Vincent’s] confidence in her ability to faithfully serve as a member of [the
County’s] management team.”
¶52 Moe counters that whether she had satisfactorily performed her job duties “is a
factual question that cannot be decided by summary judgment.” Moe asserts that her two
summary judgment affidavits “aver many discrete facts that are in contradiction to the
summary judgment affidavits submitted by [the County].” Moe argues further that her
discharge was pretextual because “Vincent wanted to discharge [Moe] in order to
discourage any litigation concerning the Fox Lawson compensation plan.”
¶53 The District Court concluded that a genuine issue of material fact existed as to
“whether Vincent’s decision to terminate [Moe’s] employment was pretextual and not for
good cause.” The court explained that Moe and the County had different
characterizations of the evidence in regard to a number of Vincent’s accusations. The
court concluded that “a properly instructed jury could conclude that [Moe] did in fact
satisfactorily perform[] her job duties and did not disrupt [County] operations. A jury
could also conclude to the contrary.”
¶54 Based on our review of the record, we agree with the District Court’s conclusion.
We recognize that because Moe occupied a managerial position, Vincent had broad
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discretion to decide whether to keep Moe in employment. Baumgart, ¶ 39, Sullivan v.
Cont’l Constr. of Mont., LLC, 2013 MT 106, ¶ 18, 370 Mont. 8, 299 P.3d 832.
Employers have the broadest discretion when dealing with managerial employees.
Baumgart, ¶ 39. “We afford employers the greatest discretion where an employee
occupies a ‘sensitive’ managerial position and exercises ‘broad discretion’ in [her] job
duties.” Sullivan, ¶ 18.
¶55 In Baumgart, the Department of Commerce presented direct evidence that
Baumgart, the former administrator of the Department’s Tourism and Promotion Division
failed to appropriately manage her budget for five consecutive years, placing the Division
“in the precarious position of having more than $4 million in extremely valuable funds
swept out of her budget and into the general fund.” Baumgart, ¶ 36. We upheld
summary judgment in favor of the employer because Baumgart could not “refute the
existence of the budget problem or her admissions that she did not understand the
Division’s budget.” Baumgart, ¶ 36. Moreover, we concluded that “Baumgart failed to
present any evidence of other underlying reasons for her termination, aside from her
unsupported allegations of political motivation for both the political discrimination and
wrongful discharge claims.” Baumgart, ¶ 37 (emphasis in original).
¶56 In Sullivan, Continental Construction terminated Sullivan because it believed that
“Sullivan had failed to fulfill the requirements of his managerial position and had failed
to act in a trustworthy manner” by “treating employees and subcontractors in a
demeaning manner”; “having frequent unexplained absences from work”; “speaking to
26
others in a derogatory manner about customers and employees”; and “behaving in a
manner that did not meet the standards of Continental Construction.” Sullivan, ¶¶ 12, 25.
Sullivan argued that he raised genuine issues of material fact to suggest that his employer
lacked good cause to terminate his employment. Sullivan, ¶ 26. To support this
assertion, Sullivan pointed to statements made by other employees who indicated that
Sullivan “had not acted inappropriately in their presence.” Sullivan, ¶ 26. He also argued
that he “regularly had invited his employees over to his house for dinner and recently
organized a group golf trip for his employees.” Sullivan, ¶ 26. We concluded that
Sullivan failed to present material and substantial evidence to raise a genuine issue of
material fact as to whether Continental Construction had good cause to terminate him.
We noted,
The fact that not every Continental Construction employee complained
about Sullivan failed to undermine the validity of Continental
Construction’s conclusion that Sullivan’s continued employment could
threaten its future viability in Montana. Similarly, the fact that Sullivan
apparently treated some employees well does not challenge the validity of
the complaints made by other Continental Construction employees.
Sullivan, ¶ 27.
¶57 An employer’s broad discretion in handling managerial employees is not absolute.
In Guertin v. Moody’s Market, 265 Mont. 61, 874 P.2d 710 (1994), we held that where a
managerial employee testified that she was a hardworking and loyal employee and had
not received previous complaints from her employer about her management capability,
and where she explained why she believed that the reasons given by her employer for her
termination were factually incorrect, there was an issue of fact regarding whether she was
27
terminated for good cause. Guertin, 265 Mont. at 69, 874 P.2d at 715. In Howard v.
Conlin Furniture No. 2, 272 Mont. 433, 901 P.2d 116 (1995), Howard’s direct supervisor
testified regarding several events that demonstrated Howard’s unsatisfactory performance
of his job duties as a furniture store manager. Howard, 272 Mont. at 439-40, 901 P.2d at
120. Howard responded by deposition to the allegations against him, denying each
allegation with specific claims and counterclaims. Howard, 272 Mont. at 440, 901 P.2d
at 120. We concluded that Howard’s “claims, denials, and counterclaims raise a factual
issue as to whether Howard was terminated for good cause within the meaning of § 39-2-
903(5), MCA, of the Wrongful Discharge From Employment Act.” Howard, 272 Mont.
at 440, 901 P.2d at 120. Because of the factual issues raised by Howard’s detailed
responses, we concluded that “reasonable persons could differ regarding inferences to be
drawn from the deposition testimony and exhibits.” Howard, 272 Mont. at 440, 901 P.2d
at 121.
¶58 This case is more akin to Guertin and Howard than it is to Baumgart and Sullivan.
Moe has raised sufficient factual disputes that would support a conclusion that the reason
for her discharge was not “good cause” in and of itself or that the given reason was “a
pretext and not the honest reason for the discharge.” Becker, ¶ 24.
¶59 Similar to Guertin, in her response to her termination letter, Moe stated that she
“worked hard for [the County] and [had] never before been disciplined.” In her response
to the fact-finding investigative report, Moe explained why she believed that the reasons
given by the County for her termination were incorrect. The majority of the County’s
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allegations against Moe stem from the fact-finding investigative report. Similar to
Howard, Moe submitted a detailed written response to the report in which she took issue
with nearly all of the allegations against her. For example, with respect to the allegations
that Moe failed to maintain a close cooperative working relationship with Vincent, Moe
disputed that Vincent advised her at the February 8, 2013 meeting that he expected better
communication from her. Moe contends that the “only reference to poor
communication” during that meeting was in regard to an allegation from a Mr. McCarthy
faulting her for a delay in direct deposits. Moe alleges that she “was able to show that the
direct deposit problem was not due to [her delay], but because there was a new
HR/Payroll system and a payroll clerk had not appropriately filled in an effective entry
date field.” In addition, while Moe does not dispute that she did not advise Vincent of
the potential pay plan litigation between April 15 and April 22, 2013, she maintains that
Vincent had knowledge already of the potential liability and that she had kept him
informed:
Vincent was notified immediately upon taking office that the pay plan was
and continues to be a liability for [the County]. The concern and awareness
of liability was acknowledged by Ms. Joyce who stated in one of our
January meetings to Mr. Vincent that “yes the pay plan is another big
liability we have but we can talk about that another day, ha ha.” All parties
were aware that failure to follow the pay plan adopted by the council
created the potential for liability. Mr. Amerman and I had several meetings
with Mr. Vincent since January up until the time I was placed on leave
advising and educating him on the pay plan and discussing our concerns if
we do not get this pay plan back on track and moving forward.
¶60 With respect to the allegation that Moe’s phone conversation with an attorney
during working hours was inappropriate, Moe claims that her staff asked her to speak
29
with the attorney and that she did so for “about two minutes” only “to confirm” that
retaliation against staff because of the lawsuit would be illegal. In her response to the
investigative report, however, Moe also claims that “[f]or personal business I have a First
Amendment right to talk with anyone I want.” In light of these somewhat conflicting
statements in the record, it is unclear whether Moe’s conversation with the attorney was
for personal reasons or in her capacity as the County’s Human Resources Director. It is
clear, however, that Moe disputes the allegation that the conversation was inappropriate.
Moe disputes also the allegations that she lacked comprehensive knowledge of public
sector practices and procedures regarding the Fox Lawson Pay Plan and that she
jeopardized County employment practices and liability insurance by failing to implement
required policy changes.
¶61 Unlike Baumgart, Moe refutes the existence of persistent problems in her
department and never acknowledged a lack of understanding of any job duty or
responsibility. Furthermore, where Baumgart failed to correct her mistakes for five
consecutive years, Moe alleges that she was terminated before she had time to rectify the
mistakes perceived by Vincent. In particular, Moe denies that Vincent gave her a
directive at the February 8, 2013 meeting to improve communication. She claims that the
specific issues he and Joyce brought up at the February 8, 2013 meeting were not
substantiated and that she “was able to rebut all of those allegations.” Moe explains that
from January up until the time she was placed on leave, she had several meetings with
Vincent and Mr. Amerman regarding concerns about the Fox Lawson Pay Plan. Drawing
30
all reasonable inferences in favor of Moe, Baumgart, ¶ 14, the first time that she became
aware of Vincent’s concerns with her communication methods was on April 22, 2013,
when Vincent asked Moe about the potential pay plan litigation. Moe was placed on
administrative leave on May 3, 2013—less than two weeks later.
¶62 Different from Sullivan, where Sullivan relied on vague statements from other
employees and immaterial information about his conduct with other employees outside
the workplace, Moe has presented exhaustive responses to the allegations against her,
including a four-page letter responding to her termination letter and a nine-page written
response to the investigative report. The Court’s only inquiry in reviewing a summary
judgment order is to determine whether the evidence establishes a genuine issue of
material fact. M. R. Civ. P. 56(c)(3); Anderson, ¶ 15. Moe’s responses potentially could
be viewed by a jury to “challenge the validity” of the County’s conclusion that she
undermined Vincent’s confidence in her ability to serve as a member of the County’s
management team. Sullivan, ¶ 27.
¶63 In contrast to Davis, we are unable to conclude that the facts that are undisputed
are sufficient to establish good cause. Davis, ¶ 14. We conclude that “reasonable
persons could differ regarding inferences to be drawn” from the fact-finding investigative
report and Moe’s responses to the allegations against her. Howard, 272 Mont. at 440,
901 P.2d at 121. The evidence Moe presents to support her disputes of the material facts
are more than “conclusory statements, speculative assertions, or mere denials,” Davis,
¶ 7, and are thus sufficient to defeat the County’s motion for summary judgment. In light
31
of these genuine issues of fact, we affirm the District Court’s denial of summary
judgment to the County.
CONCLUSION
¶64 For the foregoing reasons we affirm the District Court’s grant of summary
judgment in the County’s favor with respect to Issues 1, 2, 3, and 4. We affirm the
District Court’s denial of summary judgment to the County on Issue 5 and remand for
further proceedings.
/S/ BETH BAKER
We concur:
/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ LAURIE McKINNON
/S/ JIM RICE
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