NO. 91-318
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
ROBERTA KENYON,
Plaintiff and Appellant,
-vs-
STILLWATER COUNTY, MONTANA,
a political subdivision organized
and existing under the laws of the
State of Montana, and C. ED LAWS,
Defendants snd Respondents.
APPEAL FROM: District Court of the Thirteenth Judicial District,
t
In and for the County of Stillwater,
The Honorable Russell K. Fillner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Rosemary C. Boschert, Boschert Law Firm, Billings,
Montana
For Respondents:
Stephen J. Lehman, Crowley, Haughey, Hanson, Toole
& Dietrich, Billings, Montana
g Submitted on Briefs: November 7, 1991
Filed
r-
Justice Karla M. Gray delivered the Opinion of the Court.
Roberta Kenyon appeals the Thirteenth Judicial District
Courtfs grant of summary judgment to respondents on her claims of
age discrimination, wrongful discharge and breach of the covenant
of good faith and fair dealing. We affirm in part, reverse in
part, and remand.
The issues on appeal are:
1. Did the District Court err in granting summary judgment
to C. Ed Laws individually on the wrongful discharge claim?
2 Did the District Court err in granting summary judgment
on the age discrimination claim?
3. Did the District Court err in considering whether
Kenyon's termination was for good cause?
4. Did the District Court err in granting summary judgment
on Kenyon's wrongful discharge claim?
5. Did the District Court err in determining that
respondents were not immune pursuant to B 2-9-111, MCA?
Factual and Procedural Backqround
Roberta Kenyon was employed as a secretary by the law office
of Blenkner and Blenkner in Columbus, Montana, on May 5, 1969.
During her early employment, one of her employers, William
Blenkner, was also the part-time County Attorney of Stillwater
County, Montana (the County). Kenyon was employed part-time by the
law firm and part-time by Stillwater County, and paid separately by
each entity.
In 1974, William Blenkner and C. Ed Laws formed a partnership
for the practice of law. At that time, Blenkner was part-time
County Attorney and Laws was Deputy County Attorney. Kenyon
continued in her bifurcated duties between the firm and the County.
Eventually, Blenkner and Laws switched roles, with Laws becoming
County Attorney and Blenkner becoming Deputy County Attorney.
By 1977, the County's legal workload increased to such an
extent that Kenyon became a full-time county employee. Her salary
and benefits were paid totally by the County. Consequently, the
law firm employed other secretarial employees who were paid solely
by the firm, except for those occasions when they worked on County
business in Kenyon's absence.
In 1988, Laws became full-time County Attorney. He informed
Kenyon on May 2, 1988, that the law firm was dissolving and that he
would employ Sandra Fox as his secretary; Kenyon would work for
Blenkner in private practice. As a result, Kenyon's employment
with the County ended June 30, 1988. After Blenkner became too ill
to employ Kenyon on a full-time basis, Kenyon approached the county
commissioners for a job with the County that would provide her with
at least a 32-hour work week. The County offered Kenyon a part-
time position, but she declined it. Thereafter, she worked on
various projects for the County on a part-time basis.
In the fall of 1988, Kenyon filed a preliminary inquiry with
the Montana Human Rights Commission, alleging age discrimination by
the Stillwater County Attorney. She subsequently filed a lawsuit
against the County and Laws and the Human Rights Commission
dismissed her administrative action.
Kenyon's three count complaint was filed on April 27, 1989.
3
The complaint alleged: age discrimination based on her termination
and replacement by a younger woman; wrongful discharge based on
termination without just cause and in violation of written
personnel policies; and breach of the covenant of good faith and
fair dealing. Respondents moved for summary judgment based on g 2 -
9-111, MCA, immunity regarding the wrongful discharge claim and the
absence of any genuine issue of material fact as to Kenyon's age
discrimination claim.
The District Court granted summary judgment to respondents.
It concluded, in pertinent part, that: (1) g 2-9-111, MCA, immunity
did not apply; (2) Laws was not individually liable; (3) Kenyon did
not establish a prima facie case of age discrimination; and (4)
Kenyon was terminated for good cause and, therefore, could not
prevail on her wrongful discharge claim. Kenyon's subsequent
Motion to Amend or Alter Judgment was denied and this appeal
followed.
Standard of Review
Summary judgment is proper only when there are no genuine
issues of material fact and the moving party is entitled to
judgment as a matter of law. Cereck v. Albertson's, Inc. (1981),
195 Mont. 409, 637 P.2d 509. "[A] party moving for summary
judgment has the burden of showing a complete absence of any
genuine issue as to all facts deemed material in light of the
substantive principles that entitle that party to a judgment as a
matter of law." Cereck, 195 Mont. at 411, 637 P.2d at 511 (citing
cases). If the moving party meets its burden, then the burden
4
shifts to the non-moving party to show that issues of fact exist.
First Security Bank of Bozeman v. Jones (1990), 243 Mont. 301, 794
P.2d 679.
Did the District Court err in granting summary judgment to C. Ed
Laws individually on the wrongful discharge claim?
As noted above, the District Court denied summary judgment to
the County and Laws on their 5 2-9-111, MCA, immunity argument,
concluding, as to Laws, that he was not an agent of the board of
county commissioners. The court went on to determine that, as an
elected officer of the County, Laws was an agent of the County
acting within the scope of his authority; on this basis, it granted
summary judgment to Laws individually on Kenyon's wrongful
discharge claim. We agree with the grant of summary judgment to
Laws, but for reasons different from those stated by the District
Court.
Governmental entities in Montana are subject to liability for
their own wrongful conduct and that of their employees acting
within the scope of their duties. Section 2-9-102, MCA (1987).
For purposes of the liability statutes, elected county officials
are employees of the county. Section 2-9-101, MCA (1987). Absent
consideration of exceptions not at issue here, where an action is
brought against a county based on actionable conduct by an
employee, the employee is immune from individual liability for the
conduct if the county acknowledges that the conduct arose out of
the course and scope of the employee's official duties. Section 2-
9-305, MCA (1987). This is precisely the situation before us.
Kenyon's action is based on Laws' act of discharging her as
his secretary when he became full-time County Attorney for
Stillwater County. As an elected official, it is clear that Laws
is an employee of the County for liability purposes under Montana
statutes. Furthermore, both Laws and the county commissioners
agree that Laws was acting within the scope of his official duties
as County Attorney when he discharged Kenyon.
The County was named as a defendant on the basis of its
liability for Laws1 conduct within the scope of his duties under
5 2-9-102, MCA (1987). Given the acknowledgement by the
commissioners that the conduct on which the action is based arose
out of the course and scope of Laws' official duties, it is clear
that Laws himself is immune from liability under § 2-9-305(5), MCA
(1987).
While the District Court reached the same result via a
different analysis, we will uphold a court ruling if it is correct,
regardless of the reasons given below for the result. District No.
55 v. Musselshell County (1990), 245 Mont. 525, 802 P.2d 1252. We
hold, therefore, that the District Court did not err in granting
summary judgment to C. Ed Laws individually on the wrongful
discharge claim.
Did the District Court err in granting summary judgment on the age
discrimination claim?
Kenyon alleged age discrimination under the Age Discrimination
in Employment Act (ADEA) , 29 U.S.C. 5s 621 et seq., on the basis
that she was replaced by a younger woman. She argues that summary
judgment is inappropriate on her age discrimination claim because
genuine issues of material and disputed fact exist as to the
reasons for her termination. Respondents contend that no genuine
issues of material fact exist in that Kenyon failed to present any
facts relating her discharge to discrimination based on age.
The District Court concluded that respondents had provided
facts showing a nondiscriminatory reason for Kenyon's termination--
poor work performance--and that Kenyon had failed to respond with
facts showing that respondents were motivated by a discriminatory
reason for her discharge. We agree.
In McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 93
S.Ct. 1817, 36 L.Ed.2d 668, the United States Supreme Court
allocated the parties' respective burdens in an action based on
racial discrimination. That allocation has been adopted for, and
applied to, claims arising under the ADEA. Steckl v. Motorola,
Inc. (9th Cir. 1983), 703 F.2d 392.
In the context of a summary judgment motion in an ADEA action,
the plaintiff need only adduce facts which, if believed, support a
reasonable inference that he or she was denied an employment
opportunity because of discriminatory age criteria. Foster v.
Arcata Assoc., Inc. (9th Cir. 1985) , 772 F.2d 1453. If that burden
is met, the employer must rebut the inference of discrimination
with evidence of legitimate nondiscriminatory reasons the plaintiff
was not hired or was terminated; upon such a showing, the burden
shifts back to the employee to demonstrate with specific facts that
the employer's explanation is a pretext. Foster, 772 F.2d at 1459,
1460.
In the present case, it is clear that Kenyon was in the
protected age class, met the minimum job qualifications, and was
discharged by Laws and replaced by a younger woman. Under Foster,
this evidence is sufficient to support a reasonable inference of
age discrimination. In support of their motion for summary
judgment, respondents then had the burden of showing legitimate
nondiscriminatory reasons for Kenyon's termination.
LawsP affidavit established that he had had problems with
Kenyon's work performance, number of absences, and time spent on
nonprofessional duties over a long period of time. In addition,
Laws provided documentation that Kenyon was on probation at one
time for her poor work performance. Respondents also offered parts
of Kenyon's deposition in which she admitted that Laws1
dissatisfaction with her was apparent by his yelling at her on
almost a daily basis. This evidence was sufficient to rebut the
inference of discrimination raised by Kenyon.
Kenyon subsequently failed to present specific facts, as
required by Foster, indicating that Laws1 explanation for her
dismissal was a pretext. She relied entirely on the conclusory
assertions of discrimination contained in her affidavit. Kenyon
having failed to raise a genuine issue of material fact as to her
age discrimination claim, we hold that the ~istrictCourt did not
err in granting summary judgment to respondents on Kenyon9s age
discrimination claim.
Did the District Court err in considering whether Kenyon's
termination was for good cause?
As discussed above, respondentst motion for summary judgment
was based on 5 2-9-111, MCA, immunity regarding the wrongful
discharge claim and lack of genuine issues of material fact on the
age discrimination claim. The District Court granted summary
judgment to respondents on the age discrimination claim, concluded
that immunity under 5 2-9-111, MCA, did not apply, and went on to
grant summary judgment to Laws and the County on the wrongful
discharge claim based on its determination that Kenyon was
terminated for good cause as defined by § 39-2-903(5), MCA, and
pursuant to 3 39-2-904, MCA. Kenyon argues that the court erred in
ruling on good cause under the Wrongful Discharge from Employment
Act.
The District Courtts good cause discussion and conclusion
followed immediately upon its consideration of Lawsf long-term
dissatisfaction with Kenyonfs work performance in the context of
the age discrimination claim. The court concluded that Laws'
difficulties with Kenyontswork performance constituted good cause
for her termination under 5 39-2-903(5), MCA.
The District Court correctly noted that respondents' motion
was for summary judgment on all claims, not merely partial summary
judgment. It determined that Kenyon had the burden of raising a
genuine issue of material fact in response to the motion. The
record reflects, however, that respondentst motion and supporting
arguments on the wrongful discharge claim differed significantly
from those relating to the age discrimination claim. Respondents
premised their motion on the former on entitlement to judgment as
a matter of law by virtue of 5 2-9-111, MCA, immunity; as discussed
9
above, the motion on the latter was premised on an absence of
genuine issues of material fact.
The good cause issue as it related to the wrongful discharge
claim was not raised or argued by either party. The court was
bound by the issues presented to it. Custody of C.S.F. (1988), 232
Mont. 204, 208, 755 P.2d 578, 581. By granting summary judgment on
the basis of an issue not before it, the court effectively denied
Kenyon notice and an opportunity to be heard on the issue.
Hereford v. Hereford (1979), 183 Mont. 104, 108, 598 P.2d 600, 602.
We conclude that the District Court improperly considered good
cause and hold, therefore, that it erred in granting summary
judgment on the basis of good cause as defined in 5 39-2-903(5),
MCA .
IV.
Did the ~istrictCourt err in granting summary judgment on Kenyon's
wrongful discharge claim?
Kenyon's wrongful discharge claim based on a failure to follow
the County's written personnel policies was not addressed in
respondents' motion for summary judgment. Respondents first
mentioned the personnel policies in their final brief in support of
their motion for summary judgment and only in the context of their
immunity argument.
Following the District Court's grant of summary judgment based
partially on good cause, Kenyon sought to preserve her wrongful
discharge claim based on a failure to follow written personnel
policies by way of a motion to alter or amend the judgment. A t the
hearing on the motion, Kenyon was denied the opportunity to enter
into evidence written personnel policies of the County which she
asserted were in force and effect at the time of her termination.
As the parties moving for summary judgment, respondents bore
the burden of establishing that no genuine issues of material fact
existed and that they were entitled to a judgment as a matter of
law on Kenyon's wrongful discharge claim. Their only argument on
that claim was that they were entitled to judgment as matter of law
by virtue of 5 2-9-111, MCA, immunity, The court rejected that
argument. Respondents did not adequately raise or address the
facts relating to the claim of wrongful discharge based on a
failure to follow written personnel policies in their motion for
summary judgment; therefore, they did not meet their burden on this
issue.
It is clear from the record of the hearing on Kenyon's motion
to alter or amend, and from the partiesg arguments on appeal, that
disputed issues of material fact exist relating to Kenyongs
wrongful discharge claim. The parties argue the existence of
different written personnel policies applicable to Kenyon's
termination. This dispute goes to the very heart of her wrongful
discharge claim, Due to the manner in which the proceedings
unfolded in the District Court, this fundamental dispute has not
been properly addressed by the parties or that court.
We hold that the District Court erred in granting summary
judgment on Kenyon's wrongful discharge claim.
Did the District Court err in determining that respondents were not
immune pursuant to 5 2-9-111, MCA?
Respondents assert that the District Court erred in
determining that they were not immune from suit under 5 2-9-111,
MCA. In the event we find that genuine issues of material fact
remain on Kenyonf claims, they request that we affirm the grant of
s
summary judgment on the basis of the statutory immunity.
Rule 14, M.R.App.P., provides that a party may cross-appeal a
ruling, order or proceeding of the trial court made against it and
affecting its substantial rights. Thus, in order to have the issue
of statutory immunity reviewed by this Court, respondents were
required to file a cross-appeal. Rouse v . Anaconda-Deer Lodge
County (1991), 250 Mont. 1, 817 P.2d 690. They did not do so. The
immunity issue not being properly before us, we will not address
it.
Affirmed in part, reversed in part, and remanded for further
proceedings consistent with this opinion.
We concur: