No. 87-07
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
HERB BELCHER,
Plaintiff and Appellant,
-vs-
DEPARTMENT OF STATE LANDS, a
political subdivision of the State
of Montana,
Defendant and Respondent.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Douglas Harkin, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Datsopoulos, MacDonald & Lind; Edward A. Murphy,
Missoula, Montana
For Respondent:
John Bobinski, Dept. of Administration, Helena,
Montana
Submitted on Briefs: July 1, 1987
Decided: September15, 1987
Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
Herb Belcher appeals from an order of the Fourth
Judicial District Court, Honorable Douglas G. Harkin
presiding, that granted summary judgment under Rule 56(c),
M.R.Civ.P., for the defendant, Department of State Lands.
Because our review of the record shows that there were no
material issues of fact and because the law is squarely
behind the defendant, this Court will affirm the judgment of
the District Court.
Belcher filed suit against the Department on February
19, 1985, alleging that the Department had acted without just
cause when it dismissed him from employment on April 3, 1984.
He also claimed that the dismissal was not in accordance with
Department policies on discipline and discharge, that the
Department breached its contract of employment with Belcher,
and by doing so, had breached the covenant to deal fairly
with Belcher. In its defense, the Department denied the
charges and answered that Belcher had failed to exhaust the
grievance procedures available to him.
The Department moved for summary judgment. It asserted
that the causes for Belcher's dismissal were not disputed and
that Belcher merely sought to have a jury reconsider his
firing. The District Court considered two sets of briefs and
also heard oral arguments on the motion. The District Court
specifically requested Belcher to set out the public policies
that he alleged his firing violated. Belcher failed to
respond to this request of the court.
The District Court determined that traditional public
policy violations were not at issue here. It ruled also that
Belcher did not claim he was fired for a reason that violated
good faith.
The basic cause for termination is not in
dispute. The court's role is to
determine whether the Department's
procedural handling of this case complied
with its written personnel policies. If
the termination is in compliance with
procedures; the termination is proper.
(Emphasis in original.)
District Court Order and Memorandum of October 28, 1986, p.
2, citing Nye v. Department of Livestock (1982), 196 Mont.
222, 639 P.2d 498. The District Court concluded that the
Department, not the courts, had the responsibility to
evaluate Belcher's performance and to discipline or terminate
Belcher. Thus, it granted summary judgment for the
Department on October 28, 1986.
In September 1980, Belcher joined the Department as the
communications engineer for the Fire Suppression Bureau in
Missoula. Later memorandums indicate that as much as 60
percent of the communications engineer's time was to be spent
repairing and installing radios and devising a statewide
communications system and design. The remainder of the
communications engineer's time was to be spent with licensing
matters, preparation of bid specifications and budget
estimates as well as travel and firefighting activity. All
of these duties were listed in the position description that
was issued in June 1980.
Belcher's supervisor, Jack Peters, began receiving
complaints about Belcher's work in 1982. The substance of
these complaints was that Belcher was not designing radio
systems adequately; that he was shirking his responsibility
of setting up radio stations by having regional officers do
the legwork that he was better qualified for; that the
statewide communication plan he had been assigned to write
was short, weak, ineffective, incomplete and incomprehensible
to the layman; that he had consistently failed to file for
the needed licenses with the Federal Communications
Commission; and that he had used a state vehicle (on work
time) in private projects for profit. A memorandum of
punitive discipline requiring Belcher to compensate the state
for private use of a state vehicle was issued to Belcher on
January 17, 1983. Belcher noted that he reserved the right
to respond at a later date and signed the document.
In April 1983, Peters removed Belcher from other work
activities so that he could devote full time to preparing the
plan. Belcher was told that the communication plan had top
priority and that it was essential since Department employees
depended on the radios for their lives in emergencies.
Peters also began filing memoranda on Belcher's performance.
In a two-month period in late 1983, three separate field
officers complained to Peters about incompetence on the part
of Belcher in setting up and licensing a communications
system near Miles City; in setting up a base station in
southwestern Montana that did not allow for a remote control
specificiation; and devising a system near Kalispell that
allowed for two radio channels, but since each canceled out
the other only one could be used at a time.
These last complaints served as the basis of a notice
of corrective discipline issued to Belcher on January 12,
1984. This notice complied with state disciplinary rules by
identifying the grounds for the disciplinary action, listing
the improvements anticipated, and noting the consequences of
failure to comply, including the possibility of termination.
The notice required the performance deficiencies be rectified
within 60 days and that Belcher submit to weekly evaluations.
It required also that Belcher submit a complete Radio
Communications Plan and a manual on maintaining and
installing radios. Belcher was advised of his right to file
a rebuttal; he chose not to file the rebuttal.
Peters met with Belcher on March 5, 1984. He warned
Belcher that his progress was not sufficient. He conducted a
review of Belcher's actions on March 16 and determined that
Belcher's work remained inadequate. The Radio Communications
Plan, which the Department had been expecting from Belcher
since he had been hired, was submitted on March 14, 1984. It
consisted of 26 pages, eight of them blank forms. It did not
include some material that Peters had specifically requested.
On March 19, 1984 and at Peters' request, Belcher filed a
.
memorandum "of things done during the past 60 day [s] " It
lists nine tasks, several of which Belcher conceded at
deposition would have taken a matter of hours to do. Also
listed was revision of the radio plan and revision for the
communication plan. The Department, however, still found the
plans to be deficient.
On April 3, 1984, Belcher was told by Dennis Hemmer,
Commissioner of State Lands, that he was being dismissed. He
was notified that he had a right to have an attorney at the
meeting and that he had a right to file a grievance. He did
not call his attorney, although he had retained legal counsel
believing this result was imminent, and did not file the
grievance.
This extensive review of the record is necessary since
the first question this Court faces is whether the District
Court erred in granting summary judgment. Summary judgment
under Rule 56(c), M.R.Civ.P., is intended to encourage
judicial economy by eliminating unnecessary trials in which
no genuine issue of fact is presented. Cereck v. Albertson's
Inc. (1981), 195 Mont. 409, 411, 637 P.2d 509, 510. This
Court will uphold summary judgments when the complaining
party cannot point to material and substantial facts that
would alter the District Court's decision. If a factual
controversy exists, disposition by summary judgment will not
suffice. Dare v. Montana Petroleum Marketing Co. (~ont.
1984), 687 P.2d 1015, 1019, 41 St.Rep. 1735, 1738. In the
midst of a four-day deposition of Belcher, this exchange
occurred:
Q. [By Ms. Mitchell] The allegations of
your Complaint says [sic] your
termination was without just cause. Why
do you think your termination was without
just cause? What do you mean?
A. I believe that I was under such a
strain I was unable to perform my duties
properly.
Q. Are you stating that you failed to
perform your duties properly?
A. Under the conditions, yes.
Q. How do you think the Department of
State Lands violated its policy on
discharge?
A. Under the Montana--they call it the
MOM manual. I think it is specified a
corrective memo is not just cause for
termination. I believe it has got to be
a disciplinary memo. I think that's
stated in the manual.
Q. Do you consider, under the Department
of State Lands policies, a failure to
properly perform the duties of your
position just cause for discharge?
A. Not necessarily.
Q. But it is a reason for discharge,
isn't it?
A. Yes.
Q. Your Complaint says that the
Department of State Lands violated a
contract of employment. What contract of
employment did you have with State Lands?
A. It is an unwritten contract. I
believe in the--for any new employee
there is a 6 months' probationary period
and it is more or less understood after 6
months it is a permanent position. I
believe that is a common belief of the
majority of the people that work for the
State.
Q. Permanent employees can be discharged
for failure to properly perform their
duties, can't they?
A. You can be terminated for any reason.
(2. Yes or no.
A. Yes.
This exchange indicates that no underlying dispute of
facts is present. Belcher was not doing his job; he had
received notice that his work was not adequate; he failed to
rectify the situation, and he was subsequently discharged.
It appears to us that no basic question of fact exists for
jury determination and Belcher does not raise any specific
fact question.
Instead, he raises three issues of law:
1. Did the District Court err when it
held no action for wrongful discharge or
breach of the covenant of good faith
would lie if the employer followed proper
procedure?
2. Does termination of state employment
without just cause constitute a violation
of public policy sufficient to be a
wrongful discharge?
3. Does an employer who has promulgated
rules saying that employees will not be
discharged except for just cause violate
the covenant of good faith and fair
dealing if he discharges an employee
without just cause?
Section 39-31-303, MCA, guarantees the Department
certain rights:
Public employees and their
representatives shall recognize the
prerogatives of public employers to
operate and manage their affairs in such
areas as, but not limited to:
(1) direct employees;
( 2 ) hire, promote, transfer, assign, and
retain employees;
(3) relieve employees from duties because
of lack of work or funds or under
conditions where continuation of such
work be inefficient and nonproductive;
(4) maintain the efficiency of
government operations;
This statute was held valid where a school district demoted
an administrator and reassigned her to classroom activities.
Sorlie v. School District No. 2 (Mont. 1983), 667 P.2d 400,
404, 40 St.Rep. 1070, 1075.
Because terms of Belcher's employment contract included
the development of a Radio Communications Plan and a Radio
Manual, because Department managers instructed him as to what
subjects should be included in the manual and plan, because
Belcher failed to promptly and properly complete those items,
and because Belcher proved to be incompetent in other aspects
of his job, the Department exercised its right to dismiss
Belcher. Supervisors had issued reprimands, notices of
corrective discipline and notices of punitive discipline
throughout Belcher's 43 months of employment. He had the
chance to rebut these charges, but chose not to do so. He
had the right of grievance, but failed to exercise it.
Furthermore, Relcher was unable to show the District Court
what public policies were affected by his dismissal other
than his own belief that just cause was violated.
There are many public policy concerns that will trigger
a wrongful discharge claim. Examples were discussed in one
recent case: dismissal of employee for not perjuring himself;
dismissal of employee who files for workers' compensation; or
dismissal of the employee who refuses sexual relationships
with employer. Keneally v. Orgain (1980), 186 Mont. 1, 6,
606 P.2d 127, 129. In order to find a public policy concern
that would permit Belcher to collect for wrongful
termination, this Court would need to add another
proscription, the dismissal of state employees who are not
performing their duties. In order to constitute a public
policy violation, Belcher's claims would have to "further a
state interest in protecting the general public which
transcends the employment relationship." Brinkman v. State
of Montana (Mont. 1986), 729 P.2d 1301, 1308, 43 St.Rep.
2163, 2171, (emphasis in original). Relcher's claim does not
state a public concern; it is a personal matter.
Belcher asserts that S 2.21.6503(6), A.R.M., in effect
when he was dismissed, supports his claim that his dismissal
violated public policy. Section 2.21.6503 (6), A. R.M. read,
"When punitive discipline is necessary, just cause,
documentation of facts, and due process are required."
Section 2.21.6507(6) defines just cause as "reasonable,
job-related grounds for taking a disciplinary action based on
failure to satisfactorily perform job duties ... " This
-
Court has held that administrative rules "may be the source
of a public policy," Q, 639 P.2d at 502 (emphasis added);
but that public policy is not derived solely from
administrative rules. "Public policy violations may
conceivably arise on other facts or theories." Dare, 687
P.2d at 1019.
The facts that Belcher disagreed with his discharge
does not mean that the Department's decision was wrong,
Belcher's right to grievance proceedings under
S 2.21.6503 (I), A.R.M., (now found at S 2.21.6515, A.R.M.
provided his remedy. He failed to use that remedy. In such
circumstances, the courts should not interfere. "Whether an
employee has performed satisfactorily is to be determined by
the employer and not by the courts." Percival v. General
Motors (8th Cir. 1976), 539 F.2d 1126, 1129; see also, Pierce
v. Ortho Pharmaceutical Corp. ( N . J . 1980), 417 A.2d 505,
510-11. This Court will not interfere with the Department of
State Lands1 right to manage its affairs and hire employees
who will perform their jobs so long as there is a standard
for discipline and the Department has abided by it. Summary
judgment for the Department on Belcher's wrongful discharge
claim was properly granted.
It is clear from the record, the deposition of Belcher,
and Belcher's own conduct that he knew his job was in
jeopardy. The Department repeatedly attempted to help him
until the situation was out of control. These particulars
represent notice to Belcher that he had to improve or risk
discharge. The Department recognized the duty to act in good
faith and abided by it. Gates v. Life of Montana (Mont.
1983), 668 P.2d 213, 215, 40 St.Rep. 1287, 1289.
In Nordlund v. School District No. 14 (Mont. 19871,
P.2d , 44 St.Rep. 1183, 1186, the covenant of good
faith and fair dealing was not breached where the employer
school district gave the administrator proper notice his
contract would not be renewed, and complied with statutory
requirements dealing with school contracts set out in
S 20-4-401, MCA. It was held that "because no breach of the
employment contract occurred, it cannot be said that the
school board breached the implied covenant of good faith and
fair dealing." Nordlund, 44 St.Rep. at 1186.
The case before this Court is similar. The Department
of State Lands assigned Belcher to conduct specific duties.
Belcher's work was not adequate and he was warned that it
must improve or he would face the prospect of termination.
His work performance did not improve and he was discharged.
Because the Department followed administrative regulation in
warning Belcher about his work, and attempted to assist him,
it cannot be said that the Department violated the covenant
of good faith and fair dealing when it discharged Belcher.
Consequently, Belcher's claims for breach of the covenant of
good faith is deficient and summary judgment for the
Department was proper.
We affirm the judgment of the District Court.
We concur: /