Thompson v. Board of Trustees of School District No. 2

No. 8 8 - 5 1 3

IN THE SUPREME COURT OF THE STATE OF MONTANA

ROGER THOMPSON,
Plaintiff and Appellant,
-vs-
BOARD OF TRUSTEES OF SCHOOL DISTRICT NO. 2,
YELLOWSTONE COUNTY, MONTANA, said board
consisting of the following; MAURICE R.
COLBERG, JR.; FRANK J. KOLENDICH; HEWES D.
AGNEW; ELLEN ALWEIS; KAREN TRASK DOOLEN; JIM
LOGAN, DOUGI,AS R . SIPES; and MIKE YOUNG,
Defendants and Respondents.

APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Russell K. Fillner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Charles F. Moses; Moses Law Firm, Billings, Montana
For Respondent:
_ I

P- Laurence R. Martin and Sol Lovan; Felt & Martin,
J- Billings, Montana
.--,
q- '

Submitted on Briefs: April 27, 1 9 8 9
Decided: June 7, 1989

Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.

This suit arises out of the nonrenewal of plaintiff's
teaching contract with School District No. 2 in Billings,
Montana. Plaintiff appealed the Board of Trustees' decision
to terminate his employment and the reasons given for
nonrenewal therein to the District Court for the Thirteenth
Judicial District, Yellowstone County. The District Court
granted summary judgment in favor of the School District on
plaintiff's claims for tort liability, punitive damages,
violation of due process, and breach of the implied covenant
of good faith and fair dealing. The court granted the plain-
tiff's cross-motion for summary judgment based on the insuf-
ficiency of the reason given for nonrenewal. The court
remanded the case back to the School District for a more
sufficient statement of reasons. On appeal, the plaintiff
challenges the adequacy of the District Court's remedy,
alleging that there has been a breach of the employment
contract and that he is entitled to monetary damages. Based
on our holding that the plaintiff is not entitled to pursue
this remedv, we affirm the District Court's granting of
summary judgment in favor of the School District and vacate
the Order of remand.
We reframe the issues as follows:
Where a nontenure teacher has received notice of termi-
nation under § 20-4-206, MCA 1985, and challenges the suffi-
ciency of the reasons given for termination, to what extent
has the teacher the following remedies:
(1) Remedies under the grievance procedure of the
Professional Agreement or union contract between the School
Board and the Teacher's Association.
(2) The right of appeal under the nontenure teacher's
severance policv contained in the union contract providing
for appeal of the notification to the School Board; and
subsequent rights to appeal to the County Superintendent of
School, and then to the State Superintendent, and finally to
the court system under the Montana Administrative Procedure
Act.
(3) Right to proceed in District Court seeking a recov-
ery of damages suffered as a claimed result of the insuffi-
ciency of the notice of termination given to the teacher by
the school district.
Section 2 0 - 4 - 2 0 6 , MCA 1985, with regard to nontenure
teacher notification, provides in pertinent part as follows:

Notification of nontenure teacher reelection --
acceptance -- termination and statement of reasons.
(1) The trustees shall provide written notice by
April 15 to all nontenure teachers who have been
reelected. Any nontenure teacher who does not
receive notice of reelection or termination shall
be automatically reelected for the ensuing school
fiscal year.

(3) When the trustees notify a nontenure teacher
of termination, the teacher may within 10 days
after receipt of such notice make written request
of the trustees for a statement in writing of the
reasons for termination of employment. Within 10
days after receipt of the request, the trustees
shall furnish such statement to the teacher.

The pertinent portion of the Professional Agreement, or
union contract, between the Board of Trustees of School
District No. 2 and the Billings Education Association are as
follows:

Article IV, Section 7. -
- Non-Tenure Teacher Severance
Policy:
- -
 Subd. 1. Every non-tenured teacher shall be
entitled to the following rights if his/her
contract i.s not being renewed.
(a) The teacher shall be notified by
the Superintendent, in writing, that
his or her contract will not be
renewed pursuant to Montana
statutes.
fb) The notice shall state the specific
reasons for non-renewal.
(cl The teacher may appeal his/her
non-renewal to the Board of Trustees
or a committee thereof, by May 1.
The Board, or its committee, shall
reach a decision within twenty ( 2 0 )
days of the submit-talof the appeal.
Subd. 2.
- The decision of the Board, or its
committee, shall not be subiect to the griev-
ance procedure as outlined in Article XIT.
Article XIL,

Section 4. Adjustment of Grievance, Time %imitation
and Waiver:
The parties shall attempt to adjust all grievances
which may arise during the course of employment of
any teacher within the School District in the
following manner: T f a grievant believes there has
been a grievance, he/she shall discuss the matter
with the responsible administrator in an attempt to
arrive at a satisfactory solution. If the griev--
ance is not resolved as a result of this meeting,
the grievance shall be reduced to writing, setting
forth the facts and the specific provisions of the
Agreement allegedly violated, and the particular
relief sought. An alleged grievance must be pre-
sented in writing within twenty (20) days of the
occurrence of the event, or within twenty (20) days
of the time that the grievant through the use of
diligence should have known of the alleged
grievance.
Subd. 1. Level I: The written grievance,
siqned by the grievant involved must be pre-
sented to the responsible administrator within
t.he time limits provided in Section 4. The
 responsible administrator shall meet with the
grievant within seven (7) days after receipt
of the written grievance and give a written
answer to the grievance within five (5) days
of the meeting. The Grievant has five (5)
days in which to either accept the answer or
appeal it in writing to the next level.
Subd. 2. Level 11: If the grievance has not
been resolved in Level I, it may then be
processed to Level I1 by presenting the writ-
ten grievance to the Superintendent. The
Superintendent or his designee shall meet
within ten (10) days after receipt of the
written appeal to discuss the problem with the
grievant. Within seven ( ? ) days of the meet-
ing the Superintendent or his designee shall
submit his written answer to the grievant.

Subd. 3 Level LIL: If the grievance remains
unresolved at the conclusion of Level 11, i t.
may he submitted for binding arbitration at
the discretion of the Associati-on provided
written notice of the request for submission
to arbitration is delivered to the Superinten-,
dent's Office within ten (10) days after the
date of receipt of the decision at level TT.
The case has a complex procedural history which unfortu-
nately extends over a period starting in 1983. Mr. Thompson
was employed by School District No. 2 as the choir director
!
at Billings West High School. He served in that capacitv for
three years, each year being offered a one-year contract. Tn
March, 1983, the Board of Trustees voted not to renew Mr.
Thompson's contract for the 1983-84 school year. That con-
tract would have granted him tenure rights.
Mr. Thompson was notified of the Board's deci-sion by
letter dated March 30, 1983 which said:

In accordance with Section 20-4-206, of the
School Laws of Montana, Annotated, (copy attached!,
you are provided notice of termination of your
contract with School District No. 2, at the close
of the 1 9 8 2 - 8 3 school year.
 In keeping with the philosophy of School
District No. 2 of retaining only the best teachers
for tenure, School District No. 2 would be better
served by another teacher in this position.
On March 31, 1983, Mr. Thompson responded by letter
which stated:

In accordance with Section 20-4-206, MCA, I am
requesting the reason or reasons for the board's
decision to terminate my employment with the
district.
Also, in consideration with the board's statement
at the March 29, 1983 meeting, I am requesting a
hearing before the board to address this matter.
In response to the foregoing letter, the Board sent a letter
to Mr. Thompson dated April 6, 1983, which stated:
This responds to your letter of March 31, 1983.
You have already been notified of the termination
of your contract with School District No. 2, by
letter from Dr. Poore, dated March 30, 1983. This
letter included the reasons for the termination of
your employment.
Pursuant to your request, you may appeal your
nonrenewal to the Roard of Trustees at the Board
meeting to be held at 4:00 p.m., Monday, April 11,
1983, at the Administration Building. This appeal
is granted you under the provisions of Article IV,
Section 7, of the Professional Agreement between
the Board of Trustees and the Billings Education
Association.
On April 11, 1983, Mr. Thompson and his counsel appeared
hefore the Board of Trustees. Mr. Thompson's counsel pre-
sented argument but was not allowed to call any witnesses.
The Roard characterized the proceeding as an "appeal" rather
than a "hearing" and therefore did not allow the presentation
of witness testimony. Fol..l.owing the presentation by Mr.
Thompson's counsel, the Roard voted to affirm its prior
decision not to renew Mr. Thompson's contract.
 In a letter dated April 11, 1983, addressed to Mr.
Thompson, he was advised as follows:
You have been afforded an appeal OF the termination
of your employment with School District No. 2 at
the cl.ose of the 1982/83 school year, pursuant to
Article IV, Section 7 of the Professional Agreement
between the Roard of Trust-ees of SchooJ- District
No. 2, and the Billings Education Association.
This is to notify you of the Board's decision,
denying your appeal, and affirming the prior c-leci--.
sion of the Board of Trustees, to terminate your
contract and employment with School District No. ?,
at the close of the 1982/83 school year.
The Board did not advise Mr. Thompson orally or by the above
letter of any additional reasons in support of the
nonrenewal.
By notice dated April 19, 1985, Mr. Thompson appealed to
the County Superintendent of Schools. B y order denyina
appeal dated April 28, 1983, the County Superintendent con-
cluded that the appeal had failed to meet the requirements
set forth in the Administrative Rules of Montana in Failing
to set forth a proper caption, names and addresses, clear and
concise statement of the matters asserted., a statement indi-
cating that the petitioner has a contested case and that the
County Superintendent has proper jurisdiction together with
references to the particular sections of the statutes and
rules involved. The County Superintendent concluded that he
did not consider this a contested case and that he lacked
jurisdiction. No appeal was taken by Mr. Thompson from that
order. As a result, there was no further attempt to follow
the procedure outlined in such cases as Throssell v. Board of
Trustees of Gallatin County (Mont. 1988), 757 P.2d 348, 45
St.Rep. 1228, and Yanzick v. School District No. 23, Lake
County (1982), 196 Mont. 375, 641 P.2d 431. This was the
extent of the appeal procedure exercised under the
administrative law approach as outlined in the above cited
cases.
In addition to proceeding under the appellate approach
as previously described, Mr. Thompson also proceeded under
the grievance provisions of the union contract, and in par-
ticular Article XII, Section 4 which is previously set forth.
On April 5, 1983, Mr. Thompson filed a grievance with the
School District under the provisions of Article XII, Section
4 of the union contract. The grievance was made on the
regular Grievance Report form used by the Billings School
District and was signed by the Billings Education Association
representative. The key portions of that form stated:

Date grievance occurred: March 29, 1983
Statement of facts: Teacher was terminated on
March 29, 1983.
Inaccurate evaluations are a factor in this
termination.
Specific Provisions of Agreement Alleqedly Violat-
ed: Article XV - Sections 1, 2, 5, 6
Particular Relief Sought: Evaluation dated March 1,
1983, is to be removed from his file and grievant
is to be offered a contract for the 1983-84 school
year.
In support of the School District's motion for summary judg-
ment, the uncontradicted affidavit of the Director of Person-
nel of the School District established that the grievance was
denied through Level I and I1 administratj-ve hearings. As
previously set forth, those levels provide at Level I for the
presentation of the grievance to the responsihle administra-
tor who is required to meet with the grievant, and denied the
written grievance. A.t Level IT, the grievance was presented
to the Superintendent, and such Superintendent also denied
the grievance. The next choice under the contract for Mr.
Thompson was to submit that grievance for binding arbitration
at Level 111. The affidavit establishes that the Billings
Education Association, Mr. Thompson's representative, dropped
its attempts to move the grievance to binding arbitration.
As a result, the record establishes that Mr. Thompson failed
to proceed through to binding arbitration and thereby obtain
a final binding arbitration determination of his grievance.
In considering the grievance requirements under the
union contract, it is important to keep in mind that Mr.
Thompson's grievance as stated in the Report. Form was limited
to his argument that the evaluation dated March 1, 1983, was
inaccurate and should he removed from the file and that he
should be offered a contract for the next school year. At
that point, Mr. Thompson made no suggestion that the reasons
given in the notice of nonrenewal were insufficient. This is
significant because he now urges that the insufficiency of
such notice should be a proper basis for the award of damages
in the District Court action which was brought against t.he
School District.
The next procedural aspect is the filing of the com-
plaint by Mr. Thompson against the School District. On June
16, 1983, after all the above-described procedures were
followed, Mr. Thompson filed his complaint in the District
Court of Yellowstone County. In that complaint he alleged
that the defendants had negligently, wrongfully and unlawful-
ly terminated his employment and that the School Board did
not provide standards or guidelines for termination, that his
termination was prejudged, that the District violated the
open meeting law, that such termination did not represent the
independent and informed judgment of each member, and that
the notice was defective "in that it did not set forth the
specific reasons for his termination as required by law."
The compl aint cl aimed damages by hei-no deprived of empl o\pent
and t e r m i n a t e d w i t h o u t r i g h t . EF-L.er 'she r i l i n g o f v a r i o u c
p l e a d i n v s , a motion f o r p a r t i a l sumr11cir;7 judgment was f i l e d by
t h e p l a i n t _ ; - f f5x16 t h e rlefenclant a l s o f i l e d motions f o r surruna-
ry judgment. By 1 , 1.988, t h e D i s t r i c t
o r d e r c7,ate6 Parch
Court g r a n t e d summary juc-Igment t o b o t h t h e p l a i n t i f f and t h e
d f? F t ~ : f \ ~ l*h ,
r ?
-r . n 9 r a n t l n y t h e motion o f t h e p l a i n t i f ' vhorrip~rn
f o r summary iudgment a s t o t h e s u f 5 c j ~ r r c yo r t h e n n t j c e , t h e
O r d e r sf-ate?:

?. T h a t t h e P7ajn-f-i .'T'F C:rcss-Potion f o r Summary
Judgment c r f t h e a13eged i n s u f f i c i e n c y o f +he z t a t u - -
t o r y n o t i c e r e q u i r e m e ~ t s is hereby GRANTED. This
i s s u e i s REMANDED t o t h e s c h o o l board o f t h e F i l l -
i n g s ''!$ 1 Sc:!lc\c-I. r i s t r i c t No. 2 , Yellowstone Cour,-.
t y , Wontana, ant: saic-1 school hoard i s d i r e c t & t o
p r o v i d e t h e P l a i n t i "F wF+h s p e c i f i c r e a s o r s fcr
rc.r.--renewal o f h i s c o n t r a c t w i t h i n t h i r t y days o'
t h e d a t e hereoT. T h e C o i l r t recogr?Fzes that t h i s
cause a r o s e o v e r f i v e v e a r s a q o and t h a t t h e s c h o o l
boar?. rr.&y no i o n g e r be a b l e t o prov:i-de ?he P1.a.in-
t i f f w i t h s p e c i L i c r e a s o n s 'or non-renewal due t c
changes 0 5 members or. t h e s c h o c l b o a r d , a n d chang6-s
o f personnc! , l o s t o r m i s p l a c e d r e c o r d s a ~ c l t h e
1;-ke. T-F t h e hoard i s 1117abie to comply w i t h t h e
Caul-kl:l: Crcleu due t o such r e a s o n s , i t may c e r t i f y
such +at 'c t o t h e Court w i t h i n t h e t i n e h e r e i ~
b e f o r e p r o v i d e 6 and s e r v e a copy o f such c e r t i f i -
c a t i o n t o counsel f o r t h e P l a i n t i f + . On t h e o t h e r
ha-nc!, i f +he board i s a b l e t o comply by p r o v i d i n g
PI a i n t i FF w i t h spw:.; l ( * reZscns f o r non-renewal and
ceutifiricatiorr o F such compliance i s rnac7e t o g e t h e r
w i t h p r o o f o f s e r v i c e o f s u c h c c r t i f i - c a t i o n on
c o u n s e l f o r P l a i n t i f f , t h e n j u d g n e ~ l tmay h e e n t e r e d
a c c n r e i rclv.

The Crcler c ; T + h e D i s t - r i c t Court a l s o g r a n t e d t h e de5eendan+s1
~no-lion f o r summary judgmer~t. n " 1- he "ollowj-ng r e s p e c t s : r e -
g a r d i n 9 the n o n a p p l i c a h i l i f - y of +he fi7orltana Opcn F e e t i n g law;
regardS r l q i hc. d e r e n d a n t s ' c l a i m t h a t t h e indivFc?ual.ly named
T r u s t e e s a r e immune Trom !!c?hi! j t j 7 ; 2s tcl plainti'q's clajrn
for imposition of p u ~ i t i v e clamages as t o both the Scho~l
Pi 1 -r - I T i lit. r e ; detendants ' motion i-egariJ;nc the
f a i l u r e t o s t a t e a c l a i m f o r b r e a d 1 01 t h e c o v e n a n t o f good
f a i t h an< f a i r d e a l i r g : and d~Tenc7arlf ' m t i o n l o r t h e f a i l -
s
u r e t o s t - a t e a claim f o r wrongful d i s c h a r g e .
T h e ~ ~ C ' e c t oi t h e t o r e g o i n g O r d e r on summary i u d g m e r t
v 7 c s t o remand t o t h e S c h o o l G i s t r i c i - 5 11 o r d e r t o p r o v i d e M r .
Thompson w i t h n o t i c e O F r e a s c j r ~ svrhir.11 n e t the r e q u i r e m e n t or'
Bridyer Eciuca'r-io ~ i A s s o c i a t i o n v . Board o f Trustees, Carbon
County (19841, 203 P : o ~ t . 21, 6 7 8 P.22 059. r . Tho~rpson
c h a l l e n g e d t h e adequacy o f t h e remedy by m o t i o n t o z l t e r o r
amencl cvhicl- C!-IP F i s t r i c t Court denied. I n h i s a p p e a l Ilr,
Thompson c o n t e n d s t h a t t h e Schc~n: D i s t r i c t was o b l i g a t e d t o
Zurnish s p e c i f i c r e a s o ~ s f c r t r i r thet he was not
affc)~-cit.cl a nieaninqful appeal o r a hearing, t h a t t h e r e has
bec11 b r e a c h o f c o n t r a c t .mil khzt h e i s eritjtles t o d a r v a g e s .
The key e l e m e n t i s t h a t M r . Thompson c o n t e n d s h e i s e n t i t l e d
to damaqes whi(-.!? f l a ~ r c ~ F 3 t c t i v e l y been
e denied him by the
s u n juc7qr11ent: h e District Court and the
a b o v e - d e s c r i b e d remanc?.

T
L .

PXPV".EI~LrJ:,C,ITNDER GRTEVANCE PROCEDITFF
OF U N I O N CONTRACT
I I his Grievance &port Mr. Thcmpscn r e f e r r e d to his
t e r ~ i l i a t i o non March 29, 1983. IIe t h c n c l s i n e d t h a t i n a c c u -
rate eva1uet.ions were a factor in that deterniniltion and
asked that the e ~ r a l u a t s o r l S a t e d biarch 1, 1 9 8 3 , b e removed
from h i s file. fEis c)tm G ~ r i e v a n c e R e p o r t contra2jcts the
b a s i c a s s e r t i o n ir! t h e c o m p l a i n t f i l e d i n t h e D i s t r i c t f C c u r t
where h e c o m p l a i n s t h a t t h e n o t i c e was i n s u f f i c i e n t .
conc,l1~dc
1 ~ ~ ~ 1 "hzt t h e grievance procedure under t h e u r i n n
contract i s t h e b i n d i n g metl?c?c7 o r cirisposj-ng o f the issues
ra: .;eF 11nc'er t h e q r i e v a n c e ~ r o c e r ? ~ i r c - ,'
Fe t h e r e f o r e conclude
t-hat Ylr - I ~ could I not have procee?ec' ;ntc Disl-rj-ct
Court on the same issues raised in the grievance procedure.
Under the agreement negotiated by the Billings Education
Association with the School District, the final decision in
the grievance process is a binding arbitration. Because Mr.
Thompson chose not to proceed to binding arbitration, that
terminated any further rights with regardt to the claimed
grievance.
As we review Article IV, Section 7 of the union con-
tract, we conclude that the issue of the sufficiency of the
notice of termination properly could have been included in
the Grievance Report form and handled through the gri-evance
procedure. Had he properly proceeded in that manner, his
right to receive a specific statement of reason for
nonrenewal would have been satisfied through the grievance
procedure.
In this instance he chose not to proceed to arbitration
as he apparently concluded that he preferred to make a claim
for damages in District Court. We hold that the proper
method for obtaining a statement of specific reasons for
nonrenewal by Mr. Thompson was set forth in the grievance
provisions of the union contract. We further hold that by
failing to follow these contract provisions, Mr. Thompson has
lost his right to obtain specific reasons for nonrenewal. We
therefore conclude that that the District Court improperly
remanded to the School District.

11.
RIGHT OF APPEAL UNDER CONTRACT
SEVERANCE POLICY
In his complaint in District Court Mr. Thompson argues
that the notice did not contain specific reasons for
nonrenewal. In making these contentions he overlooks the
procedure which he previously followed. We pointed out that
Mr. Thompson appealed his nonrenewal to the Board of Trustees
of the School District. Pursuant to the contract, he was
given an appellate hearing and the decision by the School
Board was affirmed. At that point Mr. Thompson appealed to
the County Superintendent of Schools. As previously de-
scribed, the County Superintendent declined to rule on his
appeal. Under the administrative procedure outlined in
Throssell and Yanzick, Mr. Thompson was required to appeal to
the State Superintendent and in the event of an adverse
ruling, only then did he have the right to proceed in Dis-
trict Court, following the procedure under the Administrative
Procedure Act. As a result, his remedies would have been
limited to recovery appropriate under the union contract and
the Act.
We hold that by failing to follow the administ-rative
procedure outlined in the mentioned two cases, Mr. Thompson
gave up his right to a final determination under the adminis-
trative procedure required in Montana. We therefore conclude
that he no longer had a claim for nonrenewal of his contract.

111.
nISTRICT COURT CLAIM OF DAMAGES
Mr. Thompson argues extensively that he has a right to
recover all damages which he has suffered in all- of these
proceedings, including references to the idea of reinstate-
ment, and most important, to monetary damages. As Mr. Thomp-
son summarized in his own brief, he claims he is entitled to
damages for the breach by the School District of his con-
tract. We conclude that he does not have such a right under
the facts of this case.
As previously outlined, Mr. Thompson had the opportunity
of grieving the sufficiency of the notice itself under the
grievance procedures. He chose not to go to binding
arbitration. As a result, h e no l o n g e r had a r i g h t t o con-
tend! i n t h e P i - s t r i p : . Cnllv: ~ ~ c { - k o h a t t h e n o t i c e i t s e l f w a s
tn
-
insufficient. - n a s i r n j l a r w a y , i f M r . Thompscn b e l i e v e r -
that he properl;: chnn7d h a v e been retained as a non+c$~~~ire
teacher, the ~ r o c e c l ~ r t c be
e f o i l o w e d was that previously
nizt-linrcy ur.6er Fart I1 o f this opinion. As he Fai7ecl to
foT-?.ow the a p p r o p r i a t e a d n l i n i s t r a t 5 vt. proceclure , h e i s b a r r e d
"ram rnak?'r.cr t h e s a r r e c o n ? - ~ n ;' c ) l t : . In '-hc p r e s e n t p r o c e e d i n g s
before t h e D i s t r i c t Court.
ICe t h e r e C c , r t ~hci1(7 I t t h e r e w e r e no f u r t h e r remedLcs
available t o Mr. Thompscr~ ur1~3er1.lle c o m p l a i n t which he fj!~?.

i n the 0:stri ct C o u r t ; anc? ccnc!vde that t h t 2 l?.'s-lr i c t C o u r t
11o r qranted sumrnarv j u d a r n ~ r t on the v a r j ous theories
r e q u e s t e d by t h e S c h o o l D i s t r i c t .
v a c a t e t b e rerranc! by t h e E;n: I-ic:: Cc,urt t o t h e School
P'e
~ i ~ t ~ h e r e i s no r e q u i r e m e n t f o r s u c h f u r t h e r c o n s i d -
ci a:, ' :
eration by the School D l s t + r i c t u . n c ' ~ r the unicr ccnt:rii(--'.
P t h thzt f:>:ception we a f f i r m t h e D i s t r i c t C c l u r f - .
S

%e Concur: ,A

M r . J u s t i c e John C . Sheehy d i d n o t p a r t i c i p a t e i n t h i s
decision.