NO. 96-194
IN THE SUPREME COURT OF THE STATE OF MONTANA
DARRIN FENGER ,
Plaintiff and Appellant,
v.
FLATHEAD COUNTY, MONTANA, a body politic and
corporate; the Board of county commissioners
thereof; and HOWARD GIPE, SHARON STRATTON,
and ROBERT WATNE, in their official capacity
as County Commission members,
Defendants and Respondents.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Katherine R. Curtis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Michael H. Keedy, Atherton & Keedy,
Kalispell, Montana
For Respondents:
Jonathan B. Smith, Deputy Flathead County
Attorney, Kalispell, Montana
Submitted on Briefs: July 25, 1996
~ ~ ~ i dAugust: 27, 1996
~ d
Filed:
[Clerk
Justice Charles E. Erdmann delivered the opinion of the Court.
Darrin Fenger appeals the order of the Eleventh Judicial
District Court, Flathead County, granting summary judgment for the
defendants. The summary judgment order held as a matter of law
that Fenger's dismissal was supported by reasonable job-related
grounds pursuant t o § 39-2-903(5),MCA. We affirm.
The issue on appeal is whether the District Court erred in
granting summary judgment in favor of Flathead County.
FACTS
Darrin Fenger was hired by Flathead County in 1989 as a
permanent, full-time juvenile detention officer at the Flathead
County Juvenile Detention Center (JDC). He completed the county's
probationary period in late 1989 or early 1990. On February 4 ,
1995, Fenger and his co-worker, Glenn Osborne, were on duty at the
JDC. A supervisor, Dale Gifford, stopped by and saw three
acquaintances of Fenger and Osborne in the center, one of whom was
in a secure area of the facility. Gifford told Fenger and Osborne
that at no time were visitors allowed in the secure areas of the
center.
Fenger attended a staff meeting on February 14, 1995, at which
the staff members were reminded that no civilian visitors were to
be allowed in the secure areas of the facility. Between
February 17 and February 24, 1995, Fenger and Osborne continued to
allow visitors in the secure areas of the JDC. On February 25, the
director of the Center circulated a memorandum to the staff stating
that visitors were not allowed in the secure areas and that
violation of that directive would result in disciplinary action
including possible termination. All staff members, including
Fenger and Osborne, read and initialed the memorandum. On March 9,
1995, Fenger and Osborne were on duty when a visitor again was
allowed to enter into a secure area of the facility.
Flathead County's personnel policy lists the "failure to obey
any order made and given by a supervisor" as just cause for
discharge. Fenger was given a notice of intent to discharge and
was given the opportunity to appear before the Director to present
his side of the story before any disciplinary action was imposed.
Fenger and Osborne were both terminated by the Director of the JDC
on April 10, 1995. Fenger then filed a notice of appeal with the
Board of Commissioners of Flathead County.
A hearing was held before the Commissioners at which Fenger
acknowledged that he was aware of the rule and that an individual
had been in a secure area of the center on March 9, 1995. On
May 3, 1995, the Commissioners met and affirmed the termination of
Fenger .
Fenger filed an action under the Wrongful Discharge From
Employment Act, §§ 39-2-901 through -915, MCA. Flathead County,
relying on affidavits of county officials, juvenile detention
center employees, and the transcript of the Commissioner's hearing,
moved for summary judgment. The District Court determined there
was no genuine issue of material fact and that the undisputed facts
established a violation of a JDC policy. The court held that this
violation as a matter of law was good cause for termination
pursuant to 5 39-2-903, MCA. The court therefore granted summary
judgment. Fenger appeals.
ISSUE
Did the District Court err in granting summary judgment in
favor of Flathead County?
Our standard of review in appeals from summary judgment
rulings is de novo. Wadsworth v. State (Mont. 1996), 911 P.2d
1165, 1169, 53 St. Rep. 146, 148; Mead v. M.S.B., Inc. (1994), 264
Mont. 465, 470, 872 P.2d 782, 785. This Court will apply the same
evaluation as the district court based on Rule 56, M.R.Civ.P.
Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d
901, 903. The movant must demonstrate that no genuine issues of
material fact exist. Toombs v. Getter Trucking, Inc. (19931, 256
Mont. 282, 284, 846 P.2d 265, 266. Once this has been
accomplished, the burden then shifts to the nonmoving party to
prove, by more than mere denial and speculation, that a genuine
issue of material fact exists. Bruner, 900 P.2d at 903. Having
determined that genuine issues of fact do not exist, the court must
then determine whether the moving party is entitled to judgment as
a matter of law. Lindey's, Inc. v. Professional Consultants, Inc.
(1990), 244 Mont. 238, 244, 797 P.2d 920, 924.
Fenger argues that it is a material question of fact whether
the breach of county policy constituted reasonable grounds for his
discharge. The county asserts that there are no material questions
of fact because there was a breach of the policy and this failure
to obey an order made and given by a supervisor constitutes good
cause as a matter of law for dismissal.
At the hearing concerning his termination Fenger stated:
I guess all this started, Mr. Gifford came in one night
and (paper shuffling) (inaudible) . . . my dates. Well,
basically, there's Mr. Gifford came in and there's three
of my friends on a softball team. We're making up a
roster, talking about it; and, Dale came in and there's
a little conflict going on in the day room with some
juveniles. So, me and Glenn Osborne and I, we had the
situation under control. Dale talked to us about the
situation and said, you know, we can't have people coming
in here, and one kid was behind the secured area.
On cross-examination, the following questions were asked and
answered :
SMITH : The night that Dale came, 4th of February. . .
FENGER : Umhum (affirmative).
SMITH : He told you don't let visitors in?
FENGER : Right.
SMITH: And you had a staff meeting not too long after
that where that was discussed, didn't you?
FENGER : Uh-huh (a£ irmative) .
f
SMITH : So you knew, in February, not to let people in?
FENGER : OK.
SMITH : And then, about February 25th, a memo was
issued, wasn't it?
FENGER : Umhum (a£ irmative) .
f
SMITH : Is that the memo?
FENGER : I, uh, yes it is.
5
SMITH : And, you read that?
FENGER: Yes, I read and signed it.
SMITH : And your initials are on the back?
FENGER: Umhum (a£ irmative) .
f
SMITH: And paragraph number four of that, again talks
about not having visitors, doesn't it?
FENGER: Yes, it does.
Fenger admits to having been told by a supervisor on
February 4, 1995, that visitors were not allowed in the secure
areas of the facility. He admits that at the staff meeting later
the same month this matter was again discussed. The record shows
that Fenger attended the meeting on February 14, 1995. Disregarding
this policy, Fenger allowed visitors to enter into the secure areas
of the facility between February 17 and February 24. The memorandum
regarding the policy was circulated on February 25, 1995. Fenger
concedes in his affidavit that he had read the memo which warned of
possible termination for a violation of the policy prior to
allowing a visitor to enter into a secure area while he was on duty
on March 9, 1995.
In Belcher v. Department of State Lands (1987), 228 Mont. 352,
355, 742 P.2d 475, 4 7 7 , we determined that summary judgment is
appropriate in wrongful discharge cases when the complaining party
cannot point to a material and substantial act that would alter the
district court's decision. In Belcher, after an extensive review
of the record and deposition transcript, we held that:
[Nl o 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.
Belcher, 742 P.2d at 477-78
Fenger attempts to raise a question of fact by denying that he
had any knowledge of the policy prior to the February 25 memo. He
argues that because the policy was new to him when he received the
memo in early March 1995, the only violation which can be
considered is the March 9, 1995, violation. Fenger argues that
this was insufficient to constitute good cause for dismissal and
that the county itself acknowledges that the policy violation of
March 9, 1995, "standing alone . . . would not have resulted in
discharge."
In Stott v. Fox (1990), 246 Mont. 301, 309, 805 P.2d 1305,
1309 (quoting Wilson v. Westinghouse (8th Cir. 19881, 838 F.2d 286,
289), this Court stated that:
While the district courts must exercise extreme care not
to take genuine issues of fact away from juries, (a)
party should not be allowed to create issues of
credibilityby contradicting his earliertestimony' . . .
a district court may grant summary where a party's sudden
and unexplained revision of testimony creates an issue of
fact where none existed before. Otherwise, any party
could head off a summary judgment motion by supplementing
previous depositions ad hoc with a new affidavit, and no
case would ever be appropriate for summary judgment.
-- Kaseta v. Northwestern Agency of Great Falls (1992), 252
See also
Mont. 135, 138-40, 827 P.2d 804, 806-07
Fenger cannot create a genuine issue of material fact as to
his knowledge of this policy prior to the circulated memo by
contradicting his own testimony in his new affidavit. Fenger's own
testimony established that he was given notice of the policy prior
to the February 17 through 24 violations.
It is clear that Fenger was not doing his job in accordance
with the policy of the JDC. Fenger failed to rectify the situation
in which visitors were allowed into secure areas of the facility
after he had notice of the policy. Regardless of whether or not
Fenger informed visitors of the policy and directed them to stay
out of the secure area, it is clear that while he was on duty
visitors did enter into secure areas of the facility. Fenger
failed to take adequate measures to prevent visitors from entering
the secure areas which was his duty as directed by the supervisors
of the facility. After reviewing the record de novo we determine
that there are no genuine issues of material fact for a jury
determination. See Belcher, 742 P.2d 475.
Having determined that no genuine issues of fact exist, this
Court must determine whether Flathead County is entitled to
judgment as a matter of law. Lindev's, 797 P.2d 920. Section
39-2-904(2), MCA, states that a discharge is wrongful only if it
was not for good cause and the employee had completed the
employer's probationary period of employment. Good cause is
defined as meaning 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.
Section 3 9 - 2 - 9 0 3 ( 5 ) , MCA. Flathead County's personnel policy lists
as just cause for termination, the "failure to obey any order made
and given by a supervisor."
The record demonstrates that Fenger did not satisfactorily
perform his job duties, as he repeatedly ignored the written and
oral directives to keep visitors out of the secure areas of the
facility. Miller v . Citizens State Bank (1992), 252 Mont. 472,
830 P.2d 550. We therefore hold that the violations of the
county's policy by Fenger constitute, as a matter of law,
reasonable job-related grounds for dismissal.
Af firmed.
a= Justice
We concur:
Chief Justice