No. 92-251
IN THE SUPREME COURT OF THE STATE OF MONTANA
DAVID A. KREBS,
Plaintiff and Appellant,
v.
RYAN OLDSMOBILE,
Defendant and Respondent.
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:
W. Scott Green, Attorney at Law,
Billings, Montana
For Respondent:
Steven J. Lehman, Crowley, Haughey, Hanson,
Toole & Dietrich, Billings, Montana
Submitted on Briefs: September 10, 1992
Decided: December 1, 1992
Justice William E. Hunt, Sr., delivered the opinion of the Court.
Plaintiff David A. Krebs brought a wrongful discharge from
employment action in the ~istrictCourt of the Thirteenth Judicial
District, Yellowstone County, against defendant Ryan oldsmobile.
Both parties brought motions for summary judgment. The District
Court granted Ryan Oldsmobilels motion for summary judgment and
denied Krebsl motion. We affirm in part and reverse in part.
We phrase the issues before the Court as follows:
1. Did the District Court e r r in granting Ryan Oldsmobilels
motion for summary judgment?
2. Did the District Court err in denying Krebsl motion for
summary judgment?
David A. Krebs was employed by Ryan Oldsrnobile from July 25,
1989, until January 10, 1990, when he was discharged. On
January 4, 1990, Krebs provided information to the Montana Criminal
Investigation Bureau (MCIB) concerning alleged illegal drug
activity by several employees of Ryan Oldsmobile. At this time,
Xrebs agreed to continue to provide information on illegal activity
at Ryan Oldsmobile and to attempt to purchase illegal drugs from
the empfoyees of Ryan Oldsmobile who were allegedly selling drugs.
There is no evidence indicating that Kmbs was to be paid for
providing this information.
On January 9, 1990, a vehicle owned by a known fugitive from
justice was dropped of at Ryan Oldsmobile. Krebs called the MCIB
and informed them of the vehicle. Sometime after Krebs made the
call to MCIB, Dick Ryan of Ryan Oldsmobile pressed the redial
button on the phone Krebs had used and learned that Krebs had
called a law enforcement agency.
The following day, January 10, 1990, Dick Ryan and Pat Ryan,
along with several employees of Ryan Oldsmobile schemed to "set upt'
Krebs. Pat Ryan announced that he was going to meet the fugitive
at a local business in the vicinity of Ryan Oldsmobile. The
purpose of this scheme was apparently to determine if Krebs would
report to law enforcement information regarding this fictitious
meeting with the fugitive. Krebs did phone the MCIB and informed
them that Pat Ryan would be meeting at a nearby business
establishment with the fugitive. An employee of Ryan Oldsmobile
hit the redial button on the phone used by Krebs and learned that
Krebs had again called a law enforcement agency. The employee
informed Pat Ryan who immediately sought out Krebs and fired him.
The scheme devised by Pat Ryan to confirm his belief that
Krebs would report illegal activity if given the chance also got
Mr. Ryan into trouble with law enforcement officials and federal
prosecutors. Acting on this information, law enforcement personnel
surrounded the local business establishment in an attempt to
capture the fugitive. They did not capture anyone.
On January 11, 1990, one day after he had been fired, Krebs
called Pat Ryan. The telephone conversation was recorded and the
following is a transcript of that conversation:
Xrebs : How are you doing? Hey, I am wondering what
the deal is here. What, you're so upset about, what is,
you know, what's the story here, as far as, as me
working? What's, what's up?
Ryan: Well, number one is the misuse of the dealer
plate, Dave. You know that you can't run dealer plates
on your, on your truck. Number two, you're a [expletive
deleted] snitch and we don't want you around here,
basically.
Krebs : How's that? I mean, I don't . . .
Ryan : Every time we make a move, you call the
[expletive deleted] FBI. We caught you [expletive
deleted] redhanded twice.
Krebs : I'm sorry, you're wrong.
Ryan : You . . . (unintelligible) ...
Well, I know
that I'm not wrong, Dave. No matter what you say, I know
you're [expletive deleted] boldfaced lying.
Krebs : Uh...
Ryan: I set you up yesterday, partner. You went over
to the service department, you made a phone call, we hit
redial after you left and it was some federal crime
bureau. The same thing happened the night before when
Dick and Alisse set you up, Dave. You went into Harkin's
office. After you left Dick hit redial, same [expletive
deleted] group of people. It's funny how I walk out and
the place is surrounded by FBI agents. I laughed my
[expletive deleted] off, and there you were watching all
the action. You come get your [expletive deleted] check,
get your plate back and I need your key too. That's all
I have to say to you.
Krebs : Uh.. ,
Ryan: Tell . .. Tell Carl nice try.
Krebs : That doesn't make ..
Krebs brought a wrongful discharge from employment action on
September 10, 1990. Ryan Oldsmobile alleged that Krebs did not get
along with other employees, that he disrupted the operation, and
that various other legitimate business reasons existed which
justified Krebsl discharge. The District Court granted Ryan
Oldsmobile's motion for summary judgment and denied Krebs' motion
for summary judgment.
I
Did the District Court err in granting Ryan Oldsmobilels
motion for summary judgment?
A district court judge may grant summary judgment when:
[Tlhe pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if
any, show that there are no genuine issues of material
fact and that the moving party is entitled to judgment as
a matter of law.
Sherrodd, Inc. v. Morrison-Knudsen Co. (1991), 249 Mont. 282, 284,
815 P.2d 1135, 1136; Rule 56(c), M.R.Civ.P. The party moving for
summary judgment has the initial burden of showing that there is a
complete absence of any genuine issue of material fact. To satisfy
this burden, the movant must make a clear showing as to what the
truth is so as to exclude any real doubt as to the existence of any
,
genuine issue of material fact. Kober v. Stewart (1966) 148 Mont.
117, 417 P.2d 476. Summary judgment is never an appropriate
substitute f o r a trial if a factual controversy exists. Reaves v.
Reinbold (1980), 189 Mont. 284, 615 P.2d 896. If there is any
doubt as to the propriety of a motion for summary judgment, it
should be denied. Rogers v. Swingly (1983), 206 Mont. 306, 670
P.2d 1386. Upon reviewing a grant or denial of a motion for
summary judgment, this Court applies the same standard as the
district court.
Krebs brought an action claiming that his termination from
employment violated the Montana Wrongful Discharge From Employment
Act (Wrongful Discharge Act) found at 3 39-2-901 through -914, MCA.
Section 39-2-904, MCA, of the Wrongful isc charge Act sets forth the
elements of wrongful discharge, and provides that:
A discharge is wrongful only if:
(1) It was in retaliation for the employee's
refusal to violate public policy or for reporting a
violation of public policy;
(2) The discharge was not for good cause and the
employee had completedthe employer's probationary period
of employment; or
(3) The employer violated the express provisions of
its own written personnel policy.
The clear and unambiguous language of the statute provides
that proof of any one of the three elements will support a wrongful
discharge action. The elements of the statute applicable to Krebs'
claim of wrongful discharge were correctly set out by the District
Court in its order and memorandum granting summary judgment to Ryan
Oldsmobile. The District Court stated that:
In the present case, Krebs concedes that Ryan did
not violate the express provisions of a written personnel
policy since it had none, nor was he a probationary
employee. Therefore, in order for Krebls [sic] to
establish a claim under Montana's wrongful discharge act
he must prove that his discharge was was [sic] not for
good cause or that his discharge was in retaliation for
reporting a violation of public policy.
The District Court then determined that Krebs failed to
present any genuine issues of material fact which would preclude
summary judgment on Ryan Oldsmobile's contention that the discharge
was for good cause. The District Court also granted summary
judgment to Ryan Oldsmobile on the issue of whether Krebs'
termination was in retaliation for reporting a violation of public
policy. The court stated that although "a good faith reporting of
a statutory violation which never occurs or is unfounded can serve
as a basis for a wrongful discharge claim, summary judgment was
appropriate in this situation. The court concluded that due to the
nature of X r e b s ' conduct in this case he was not protected by the
Wrongful Discharge Act. The court added that even if Krebs'
conduct was covered by the Wrongful Discharge Act, there was no
question that he was not discharged in retaliation for reporting a
violation of public policy.
We will first consider the court's summary judgment order in
favor of Ryan Oldsmobile on the issue of good cause.
Section 39-2-903(5), MCA, provides that:
"Good cause" means reasonable job-related grounds
for dismissal based on a failure to satisfactorily
perform job duties, disruption of the employer's
operation, or other legitimate business reason.
Ryan Oldsmobile presented evidence to the District Court
which, if proven to be true, could support their contention that
Krebs was discharged for good cause. However, Krebs also presented
evidence tending to show that he was not discharged for good cause.
The evidence offered by Krebs clearly presents a genuine issue of
material fact which remains to be determined, thus precluding
summary judgment on the issue of whether good cause existed for the
discharge.
The District Court then recognized that the Wrongful Discharge
Act protects a good faith "whistle blower." However, the court
stated that the Wrongful Discharge Act would not cover "a paid
government agent (undercover police officer) whose sole purpose is
to investigate and report public policy violations to their primary
employer." The court concluded that Krebs' status was more akin to
that of an undercover police officer, and therefore, the statute
forbidding termination of an employee for the reporting of a
violation of public policy did not apply to Krebs. We disagree.
Krebs was clearly an employee as defined in 3 39-2-903(3), MCA.
Krebs approached law enforcement in order to volunteer information.
He was not sought out or placed by law enforcement. Krebs was not
promised remuneration. Krebs provided information on only three
occasions. Krebs' relationship with law enforcement lasted a total
of six days. Finally, Krebs was paid a grand total of $40 for the
information provided and this sum was paid several weeks after he
was discharged. To hold that an individual who provides
information concerning violations of public policy will not be
covered by the Wrongful Discharge Act if they agree to cooperate,
even minimally with law enforcement, would be to thwart the very
purpose of the statute. The statute states that a discharge in
retaliation for reporting a violation of public policy is a
wrongful discharge. Krebs' conduct was protected under the
Wrongful Discharge Act.
In this case, the recorded telephone conversion, by itself, is
sufficient to create a genuine issue of material fact as to whether
Krebs was discharged in retaliation for reporting a violation of
public policy. Summary judgment was not appropriate in light of
the contested factual issues.
Summary judgment is proper when there is no genuine issue of
material fact as to whether an employee w a s discharged for good
cause or in retaliation for reporting a violation of public policy.
However, in this case there are genuine issues of material fact
which remain to be decided by the trier of fact. The District
Court's granting of summary judgment to Ryan Oldsmobile is
reversed.
I1
Did the District Court err in denying Krebsl motion for
summary judgment?
Ryan Oldsmobile denies that Krebs was wrongfully discharged
and argues that numerous reasons existed which justified Krebs'
discharge. Ryan Oldsmobile has raised genuine issues of material
fact which are in dispute relating to Krebsf discharge and which
are clearly sufficient to survive Krebsf motion for summary
judgment. The District Courtfsdenial of Krebsf motion for summary
judgment is affirmed.
This matter is affirmed in part and reversed in part and
remanded to the District Court for a trial to determine whether
Krebs was discharged for "good causetfand for a determination of
whether Krebs was discharged in retaliation for reporting a
violation of public policy.
Justice
We concur: