NO. 94-362
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
MONTE BRIDGEWATER,
Plaintiff and Appellant,
v
STATE OF MONTANA, DEPARTMENT
OF INSTITUTIONS
Defendant and Respondent.
APPEAL FROM: District Court of the Third Judicial District,
In and for the County of Anaconda-Deer Lodge,
The Honorable Ted L. Mizner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Leonard J. Haxby, Butte, Montana
For Respondent:
James M. Scheier, Department of Justice, Helena,
Montana
Submitted on Briefs: February 16, 1994
Decided: August 25, 1995
Filed:
Justice James C. Nelson delivered the Opinion of the Court.
Appellant, Monte Bridgewater, filed a complaint against the
State of Montana Department of Institutions and the Superintendent
of the Montana State Mental Hospital, Jane Edwards, on November 26,
1990, claiming defamation of character and against the State of
Montana Department of Institutions claiming constructive discharge
from employment. The Montana Third Judicial District Court,
Anaconda-Deer Lodge County, granted Jane Edwards' Rule 12(b) (6)
motion to dismiss, finding her immune from liability under § 2-9-
305, MCA. The District Court also granted the State's motion for
summary judgment on the constructive discharge claim and granted
the State's motion for summary judgment on all but one of the
defamation claims. The Appellant appeals the District Court's June
23, 1993 order granting partial summary judgment. We affirm.
ISSUES
We address the following issues on appeal:
I. Did the District Court err in granting summary judgment on
the constructive discharge claim?
I I . Did the District Court err in granting summary judgment
on all but one of the defamation claims?
BACKGROUND
Appellant was an employee of the Montana State Mental Hospital
(Hospital). Accordingly, his employment with the Hospital was
covered by a collective bargaining agreement (CBA) between the
State of Montana and the Warm Springs Independent Union Local
#5070, MFSE, AFT, AFL-CIO, and the Montana State Hospital.
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Appellant suffered a job-related injury in 1985 while working at
the Hospital. As a result of the job injury, he took a number of
extended leaves of absence which resulted in his being absent from
work for a substantial period of time.
In 1989, the Hospital conducted an internal investigation
regarding allegations that Appellant provided prescription and non-
prescription drugs to patients and violated hospital policy. The
Hospital suspended Appellant without pay while the Deer Lodge
County Attorney continued the investigation. The Deer Lodge County
Attorney ultimately advised the Department of Institutions that
there may have been criminal conduct but she did not find
sufficient evidence to prove a case beyond a reasonable doubt.
Jane Edwards suspended Appellant for two weeks, reassigned him to
another work area, and placed him on probation for a six-month
period. On May 11, 1989, Appellant filed a grievance concerning
his suspension but returned to work on July 31, 1989. On August
38, 1989, Appellant filed a second grievance concerning his
suspensions. On September 23, 1989, he took a leave of absence
because the suspensions had exacerbated his June, 1985 job injury.
The Hospital notified Appellant that when he returned to work, his
assignment to the Extended Treatment Unit would continue for six
months. On November 30, 1989, Kimberly Lloyd, the personnel
officer, notified Appellant that the Hospital had terminated his
employment because he had exhausted the la-month job preference
period related to the June, 1985 job injury. Appellant did not
file a grievance pursuant to the terms of the CBA, but did file a
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complaint in the Montana Third Judicial District Court claiming
constructive discharge from employment and defamation of character.
The court granted Jane Edwards' motion to dismiss the complaint
based on her immunity under § 2-g-305, MCA. The court also granted
the State's motion for summary judgment on the constructive
discharge and all defamation claims except for the statement made
by Ken Schmidt. Appellant appeals the District Court's order
granting partial summary judgment.
DISCUSSION
Under Rule 56(c), M.R.Civ.P., summary judgment is proper only
when no genuine issue of material fact exists and when the moving
party is entitled to judgment as a matter of law. The moving party
has the initial burden to establish that there are no genuine
issues of material fact. Once that burden has been met, the burden
then shifts to the party opposing the motion to establish
otherwise. Spain-Morrow Ranch, Inc. v. West (1994), 264 Mont. 441,
444, 872 P.2d 330, 331-32. In reviewing a grant of summary
judgment, we will utilize the same criteria as the district court;
our review is de nova. Minnie v. City of Roundup (19931, 257 Mont.
429, 431, 849 P.2d 212, 214.
I. Did the District Court err in granting summary judgment on
the constructive discharge claim?
Appellant contends that the District Court erred in granting
summary judgment on the constructive discharge claim because
genuine issues of material fact still existed. The state argues
that issues of fact did not exist and that § 39-2-912(2), MCA,
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excludes claims brought by employees covered by collective
bargaining agreements. Section 39-2-912 (2), MCA, exempts from the
Wrongful Discharge Act "an employee covered by a written collective
bargaining agreement or a written contract of employment for a
specific term." In fact, 5 39-31-101, MCA, establishes Montana's
policy of encouraging collective bargaining. See Small v. McRae
(1982), 200 Mont. 497, 651 P.2d 982. In Small, we adopted the
following language from the United States Supreme Court:
individual employees wishing to assert contract
grievances must attempt use of the contract grievance
procedure agreed upon by employer and union as the mode
of redress . . . . A contrary rule which would permit an
individual employee to completely sidestep available
grievance procedures in favor of a lawsuit has little to
commend it.
Small, 651 P.2d at 986 (quoting Republic Steel Corporation v.
Maddox (1965), 379 U.S. 650, 652-53, 85 S.Ct. 614, 616-17, 13
L.Ed.2d 580, 583). Therefore, we held that only when it is certain
that the CBA is not susceptible to an interpretation that it covers
the dispute, may an employee sidestep the provisions of the CBA.
Small, 651 P.2d at 986. Where the CBA is susceptible to such an
interpretation, we have held that the appellant must first pursue
remedies under the CBA. Brinkman v. State (19861, 224 Mont. 238,
243, 729 P.2d 1301, 1305. In Allmaras v. Yellowstone Basin
Properties (1991), 248 Mont. 477, 812 P.2d 770, we stated that
a general statutory remedy for wrongful discharge should
not apply to those classes of cases in which the
employees enjoy other specific contractual or statutory
remedies. . . . [Tlort remedies were developed
specifically to provide redress for employees who had no
legal protection against wrongful discharge.
Allmaras, 812 P.2d at 772.
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In this case, Appellant's termination for exhaustion of the
job preference period is a situation which is exclusively covered
by the CBA entered into by Appellant's union. The Appellant does
not dispute that his employment with the Hospital was subject to
this CBA. The CBA contains a grievance provision allowing an
employee to settle disputes with the employer. Moreover, Appellant
exhausted the leave of absence provision in the CBA, which states
in part:
(c) Such leave may be granted at the discretion of the
Superintendent for periods not exceeding twelve (12)
months. Leaves caused by accidents compensated by the
Industrial Accident Board shall not affect seniority
accrual, and the leave shall be extended for up to
eighteen (18) months.
Therefore, we conclude that Appellant must exhaust his contractual
remedies and follow the correct grievance procedure instead of
circumventing the CBA and filing a complaint in district court.
Additionally, the State argued and the District Court agreed
that the common-law doctrine of constructive discharge requires a
showing that the employer rendered working conditions so oppressive
that resignation was the only reasonable alternative. Niles v. Big
Sky Eyewear (1989), 236 Mont. 455, 461, 771 P.2d 114, 118 (citing
Snell v. Montana-Dakota Utilities Co. (1982), 198 Mont. 56, 643
P.2d 841). In this case, the Appellant did not resign, he was
terminated pursuant to the CBA. Therefore, he does not have a
common law claim for constructive discharge. We hold that the
District Court correctly found that on the issue of constructive
discharge, no genuine issues of material fact existed and the State
was entitled to summary judgment as a matter of law.
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II. Did the District Court err in granting summary judgment
on all but one of the defamation claims?
The Appellant argues that genuine issues of material fact
existed and therefore the District Court erred in granting summary
judgment on the defamation claims except for the statement made by
Ken Schmidt. The Appellant alleged several defamatory statements
made by the staff at the Hospital, including statements made to the
county attorney's office, to the press, and to the Appellant in the
presence of others. The statements specifically include a memo
written by Jeff Strum dated June 1, 1989; a letter written by Jane
Edwards dated July 27, 1989; questions asked by Jeff Strum and Jane
Edwards; statements made to the press by Curt Chisholm, and a
statement made by Ken Schmidt to Appellant in the presence of
others.
Defamation includes libel, the written word, and slander, the
spoken word. See § 27-l-801, MCA. Section 27-1-802, MCA, defines
libel as:
a false and unprivileged publication by writing . .
which exposes any person to hatred, contempt, ridicule,
or obloquy or which causes him to be shunned or avoided
or which has a tendency to injure him in his occupation.
In turn, § 27-l-804, MCA, sets forth those publications that are
privileged: "A privileged publication is one made: (1) in the
proper discharge of an official duty . .I' By definition, a
privileged communication is not defamatory, and therefore not
actionable. Small, 651 P.2d at 991; Nye v. Department of Livestock
(1982), 196 Mont. 222, 227, 639 P.2d 498, 501. See also, Starch v.
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Board of Dir. East. Mont. Reg. Five M.H.C. (1976), 169 Mont. 176,
181, 545 P.Zd 644, 647-48. ("[Section 27-l-804(1), MCA] constitutes
an absolute privilege with the only requirement being that the
intradepartment communication be one rendered while engaged in an
'official duty'. There can be no doubt that the hiring and firing
of employees is part of the 'official duty' . . .'I)
The District Court correctly found that the memo, letters,
questions, and statements of Jane Edwards and Jeff Strum were made
in the performance of official duty and thus were absolutely
privileged under 5 27-l-804, MCA. The statement by Curt Chisolm
made to the press as part of an ongoing investigation was within
his official capacity and was also absolutely privileged.
Consequently, we conclude that there were no genuine issues of
material fact, and the State was entitled to summary judgment as a
matter of law. We affirm the District Court's grant of partial
summary judgment.
Because the State did not file a cross appeal, we let stand
the District Court's decision to deny summary judgment on the issue
of Ken Schmidt's alleged defamatory statement.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document
with the Clerk of this Court and by a report of its result to the
west ruoJ.isning company.
AFFIRMED.
We Concur:
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We Concur:
Justice Terry N. Trieweiler specially concurring in part and
dissenting in part.
I concur with that part of the majority opinion which affirms
the District Court's dismissal of the plaintiff's claim for
wrongful discharge. However, I do not do so for the reasons stated
in the majority opinion.
I do not agree that plaintiff has not set forth facts which,
if true, would constitute constructive discharge. Nor do I agree
that he failed to file a grievance regarding the conditions which
led to his leave of absence. Finally, I do not agree that the
grievance procedure was his exclusive remedy pursuant to the
collective bargaining agreement which covered his employment.
However, I do conclude, in spite of the above, that
plaintiff's claim for wrongful discharge is precluded by the plain
terms of Montana's Wrongful Discharge from Employment Act. Section
39-2-912, MCA, of Montana's Wrongful Discharge from Employment Act
states in part that:
This part does not apply to a discharge:
izi 'oi an employee covered by a written collective
bargaining agreement or a written contract of employment
for a specific term.
Because plaintiff's employment was covered by a written
collective bargaining agreement under the plain terms of Montana's
wrongful discharge law, he cannot sue for wrongful discharge.
Therefore, I concur with that part of the majority opinion which
affirms the District Court's dismissal of his claim for wrongful
discharge.
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I dissent from that part of the majority opinion which affirms
the District Court's dismissal of the plaintiff's claim for damages
based on defamation.
In doing so, I am aware of our prior conclusion that the
privilege provided for in § 27-l-804(1), MCA, is an absolute
privilege. Starch v. BoardofDirectors(1976), 169 Mont. 176, 181, 545
P.2d 644, 647-48. However, I disagree with that conclusion. As a
general rule, communications made by public officials during the
discharge of their official duties are, at best, a qualified
privilege. The rule is summarized in the following text:
A s a general rule, communications made by a
subordinate public officer in the discharge of his
official duties are qualifiedly privileged, unless, as
considered supra §§ 69-76, they come within the
protection of absolute privilege. [Those sections are
inapplicable to the facts of this case.] The rule is
applicable where the statement is made with a proper
motive in a proper manner, and where it is based upon
reasonable cause, and where there is no showing of
falsity or knowledge that the statement was untrue, or of
malice.
However, the remarks are not privileged under this
rule unless made in connection with the exercise of
official duties and within the scope of the authority
granted, or where they constitute unfounded and baseless
suspicions which have arisen without proper
investigation.
The qualified privilege attaching to statements made
in connection with official duties may be lost if they
were made with express or actual malice, that is, with
knowledge of falsity or with reckless disregard of
truthfulness, or if the information is published to those
who do not have a sufficient corresponding interest in
the subject matter.
53 C.J.S. LibelandSlander 82 (1987) (footnotes omitted).
§
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In this case, based on the record, there were factual issues
regarding the applicability of the privilege invoked by the
defendants. It remained for a jury to decide whether the
communications complained of were made with a proper motive, based
on reasonable cause and without malice.
For these reasons, I dissent from that part of the majority
opinion which dismissed plaintiff's claim for damages based on his
allegation of defamation. I would reverse the District Court's
order granting summary judgment, dismissing that claim.
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