No. 01-263
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 331
KELLY HUNTER,
Plaintiff and Appellant,
v.
CITY OF GREAT FALLS,
Defendant and Respondent.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Julie Macek, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Jeff Lynch, Attorney at Law, Billings, Montana
For Respondent:
David V. Gliko, Attorney at Law, Billings, Montana
Submitted on Briefs: June 27, 2002
Decided: December 20, 2002
Filed:
__________________________________________
Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court
¶1 Kelly Hunter appeals from the order of the Eighth Judicial
District Court, Cascade County, granting summary judgment to the
City of Great Falls. We affirm.
¶2 We address whether the District Court erred in granting
summary judgment on the basis that, as a probationary employee,
Hunter is not entitled to relief under the Montana Wrongful
Discharge from Employment Act (Act) or in an action under 42 U.S.C.
§ 1983 (§ 1983).
BACKGROUND
¶3 Hunter was appointed as a probationary firefighter with the
Great Falls Fire Department (Fire Department) on March 1, 1996.
Pursuant to § 7-33-4122, MCA, his initial appointment was for a
six-month probationary term.
¶4 In August of 1996, Hunter's superior officers considered
whether to promote him to confirmed firefighter. In a memorandum
to Fire Department Deputy Chief Wayne Young, Battalion Chief
Randall McCamley advised that, while Hunter's performance had been
somewhat erratic and included several "meets or below standard"
monthly evaluations, he felt Hunter had the potential to become an
effective member of the department. The Fire Department accepted
McCamley's recommendation that Hunter's probationary status be
extended beyond the initial six months and reviewed on a monthly
basis.
¶5 On September 30, 1996, McCamley reprimanded Hunter for failing
to notify him, as Hunter’s superior officer, that he would be
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unable to report to work following knee surgery. On October 24,
1996, Captain Ron Lee recommended in writing to McCamley that
Hunter not be confirmed but, instead, be supervised by one captain
for an entire month. In an October 25, 1996, memo to Young,
McCamley stated he was unable to recommend Hunter for appointment
as a confirmed firefighter based on Hunter’s lack of trust in his
immediate supervisor and McCamley, and his lack of understanding of
Fire Department policy, rules and regulations. In turn, Young
recommended to Fire Department Chief James Hirose that Hunter's
employment be terminated based on his lack of progress in
understanding department policies, continuing mistrust of the
officers and demonstration of characteristics unbecoming a member
of the Fire Department. The City terminated Hunter's employment
with the Fire Department on October 31, 1996. Hunter did not
dispute or attempt to grieve the extension of his probationary
period at any time prior to the termination.
¶6 After his termination, Hunter filed a grievance through the
local International Association of Fire Fighters (Firefighters
Union). In denying the grievance, Hirose pointed out that Hunter
had neither been confirmed nor appointed as a permanent member of
the Fire Department. For that reason, Hirose refused to recognize
Hunter as a member of the Firefighters Union subject to the
grievance procedure.
¶7 Hunter and the Firefighters Union then filed this action. The
City moved for summary judgment. It claimed Hunter was not a union
member and, even if he were, he was still a probationary employee
3
to whom the Act's remedies do not apply and, therefore, he also did
not possess a property interest in his position for purposes of a
civil rights action under § 1983. Hunter argued that, even if not
a union member, his claim against the City under the Act should
survive because he had served his probationary period. He also
contended that, having completed his probationary period, he
possessed a property interest in employment subject to due process
protections.
¶8 The District Court granted the City's motion for summary
judgment regarding Hunter's claims under the Act and § 1983, and
the Firefighters Union's claims. Hunter appeals.
STANDARD OF REVIEW
¶9 We review a summary judgment de novo, employing the same
standards used by the trial court: first, whether genuine issues
of material fact exist and, if not, whether the moving party is
entitled to judgment as a matter of law. See Rule 56(c),
M.R.Civ.P.; Winslow v. Montana Rail Link, Inc., 2000 MT 292, ¶ 38,
302 Mont. 289, ¶ 38, 16 P.3d 992, ¶ 38. Here, Hunter does not
assert the existence of any genuine issue of material fact, but
challenges only certain of the District Court's conclusions of law.
We review a district court's conclusions of law to determine if
they are correct. Heller v. Gremaux, 2002 MT 199, ¶ 7, 311 Mont.
178, ¶ 7, 53 P.3d 1259, ¶ 7.
DISCUSSION
4
¶10 Did the District Court err in granting summary judgment on the
basis that, as a probationary employee, Hunter is not entitled to
relief under the Act?
¶11 A discharge is wrongful if the employee has completed the
employer's probationary period of employment and the discharge is
not for good cause. Section 39-2-904(1)(b), MCA. Hunter contends
the District Court erred in concluding he was a probationary
employee for purposes of the Act because, in Hobbs v. City of
Thompson Falls, 2000 MT 336, 303 Mont. 140, 15 P.3d 418, we
concluded an initial probationary period cannot be extended. He is
incorrect.
¶12 Hobbs was an action by a discharged police officer against the
City of Thompson Falls. The City claimed Hobbs had not
successfully completed his probationary period because the City
Council had not yet confirmed him as a permanent employee after
nearly 13 months’ service in a probationary capacity. On that
basis, the City denied that Hobbs was wrongfully terminated and the
trial court granted its motion for summary judgment. Hobbs, ¶¶ 3-
5, 7-8. We pointed out on appeal that, by statute, the
probationary period of employment for police officers in Montana
"cannot exceed one year" and that termination without cause is
permissible during the probationary period. Conversely, however,
the City could not terminate a police officer without cause
following satisfactory completion of the statutory one year of
probationary service. Hobbs, ¶ 18.
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¶13 While Hunter characterizes Hobbs as similar to the present
case, he ignores the crucial difference between the statutes
addressing probationary periods for police officers and
firefighters. The statute regarding police officers at issue in
Hobbs provides that "[e]very applicant who has passed the
examination and received the certificate referred to in § 7-32-4108
must first serve for a probationary term of not more than 1 year."
Section 7-32-4113, MCA. In other words, the Legislature set a
statutory maximum probationary term for a police officer of one
year. In contrast, § 7-33-4122, MCA, applicable to firefighters,
provides that "[e]ach appointment shall first be made for a
probationary term of 6 months, and thereafter the mayor or manager
may nominate and, with the consent of the council or commission,
appoint such . . . firefighters . . . ." Nothing in the statute limits a
firefighter's probationary term to six months.
¶14 In enacting a law, the Legislature is presumed to have
understood the ordinary and elementary rules of construction of the
English language. State v. Miller (1988), 231 Mont. 497, 517, 757
P.2d 1275, 1287 (citation omitted). Comparing the two statutes
above, it is clear the Legislature is aware of how to set a maximum
probationary period, as it did regarding police officers, by using
the "not more than" language. It is equally clear the Legislature
chose not to do so as to firefighters, instead setting a statutory
minimum probationary period by using the words "first be made for a
probationary term of 6 months." We presume that if the Legislature
had intended to create a statutory maximum probationary period for
6
firefighters, it would have done so expressly. See MacMillan v.
State Compensation Ins. Fund (1997), 285 Mont. 202, 207, 947 P.2d
75, 78 (citation omitted). Moreover, in construing a statute, our
job "is simply to ascertain and decide what is in terms or in
substance contained therein, not to insert what has been omitted .
. . ." Section 1-2-101, MCA. Thus, we cannot add to § 7-33-4122,
MCA, the language contained in § 7-32-4113, MCA.
¶15 Hunter further asserts that a fair and reasonable reading of
the Act prohibits "unilateral" expansion or extension of an
employee's probationary period. He contends an affirmance of the
District Court's ruling in favor of the City "will nullify the Act
by creating a defense which will swallow the Act's remedial
provisions in their entirety." We disagree.
¶16 In Whidden v. John S. Nerison, Inc., 1999 MT 110, ¶ 19, 294
Mont. 346, ¶ 19, 981 P.2d 271, ¶ 19, we held that, under the plain
meaning of § 39-2-904(2), MCA, "a nonprobationary employee may not
be discharged without good cause." We went on to conclude the
"employer must define the probationary period at the outset of an employment relationship,
and the employer has the burden of showing that a probationary period was in effect at the
time of a discharge." Whidden, ¶ 21. The Whidden conditions deter abusive expansion or
extension of probationary periods after the fact, thereby avoiding the prospect of nullifying
the protections provided to Montana workers by the Act.
¶17 In this regard, Hunter argues that the City failed to meet the
Whidden conditions. While Hunter reasons that a probationary
period which may be extended "purely as a matter of discretion" is
7
not one defined at the outset of employment, he mischaracterizes
the manner and time in which his probationary period was
established.
¶18 As discussed above, the statutory probationary period for
firefighters is a minimum six-month term. Moreover, the Fire
Department's policy manual augments statutory provisions regarding
firefighters. To be promoted from probationary status to
"confirmed Firefighter," a person must meet the following
requirements:
(1) Must have at least six (6) months experience as a
Firefighter.
(2) Must meet requirements as set forth in Montana State
Fire Codes, Section 7-33-4122, Probationary Period.
. . . .
Confirmation shall be based on the following:
(1) Must have written recommendation from first line
supervisor and Battalion Chief prior to written
examination.
(2) Must successfully pass written examination with a
minimum score of 75%.
Examinations for confirmation will not be given unless
candidates have fulfilled the requirements listed above.
Great Falls Fire Department Policy, Personnel Section, Firefighter
Promotion. The Fire Department policy clearly requires a
probationary firefighter to do more than just obtain six months of
experience on the job to be promoted from probationary status to a
confirmed firefighter. The first subsection (2) above tracks the
statutory minimum six-month probationary period for firefighters,
while the first subsection (1) clarifies that the six months'
experience as a firefighter is a minimum. The additional
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confirmation requirements also include a written recommendation
from two of a probationary firefighter's supervisors and, finally,
a 75% score on an examination not given unless the other
requirements are met. These discrete requirements for promotion
from probationary status, together with the statutory minimum term
set forth in § 7-33-4122, MCA, disprove Hunter's suggestion that
the extension of his probationary period was a matter of pure
discretion. The terms of his probationary period were part of the
Fire Department's policy at the time he was hired.
¶19 Further, as to whether the City defined the probationary
period at the outset of its employment relationship with Hunter,
the City filed two affidavits with the District Court. Ramona
Jewett, a City personnel analyst, affirmatively averred that she
conducted an employee orientation in which Hunter participated on
March 1, 1996, and at which she explained that the firefighters'
probationary period would last for six months unless extended. In
addition, Young stated by affidavit that he conducted a two-day
orientation program for new firefighters in March of 1996 in which
Hunter participated. As part of that orientation program, Young
outlined for the new firefighters "the progress and improvement
required to succeed in advancing from a probationary firefighter to
appointment of firefighter."
¶20 Hunter submitted an affidavit in which he stated "[t]o the
best of my recollection, no one employed at the City of Great
Falls, including Ramona Jewett, ever told me that my status as a
probationary employee could be extended beyond my first six months
9
of employment." This statement by Hunter, which does not
affirmatively meet the affidavit testimony of Jewett and Young, is
not sufficient to create a material question of fact as to whether
the City satisfied the Whidden condition that it define the
probationary period at the outset of the employment relationship.
Moreover, Hunter does not argue on appeal that a material issue of
fact precluded summary judgment.
¶21 For the reasons stated above, we conclude the City defined the
probationary period at the outset of its employment relationship
with Hunter and met its burden of showing that a probationary
period was in effect at the time of Hunter's discharge. We hold
that the District Court did not err in granting summary judgment on
the basis that, as a probationary employee, Hunter is not entitled
to relief under the Act.
¶22 Did the District Court err in granting summary judgment on the
basis that Hunter is not entitled to relief under § 1983?
¶23 Section 1983 provides civil redress for any person deprived
"under color of any statute, ordinance, regulation, custom, or usage, of any State . . . of any
rights, privileges, or immunities secured by the Constitution and laws . . . ." Persons who
have been deprived by government agents of due process in the termination of employment
may be entitled to relief under § 1983 if they have a protected property interest in the
employment. Mysse v. Martens (1996), 279 Mont. 253, 260, 926 P.2d 765, 769. Hunter
contends his termination violated his civil rights under § 1983 by depriving him of a
protected property interest in employment without substantive and procedural due process.
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¶24 The fundamental premise for Hunter's § 1983 claim is that he
was not a probationary employee at the time his employment was
terminated. On that basis, he asserts entitlement to the benefit
of our Whidden holding that, under the plain meaning of § 39-2-
904(2), MCA, an employer may not discharge an employee without good
cause outside the probationary period. See Whidden, ¶ 21. Because
we have concluded that Hunter was a probationary employee at the
time of his termination, the premise for his § 1983 claim
evaporates. Nor does Hunter advance any other authority under
which, as a probationary employee, he has a property interest in
his employment. Consequently, we need not address his argument
regarding whether, post-Whidden, the District Court erred in
relying on Medicine Horse v. Trustees, Big Horn County Sch. Dist.
(1991), 251 Mont. 65, 823 P.2d 230, overruled in part in Whidden, ¶
21.
¶25 We hold the District Court did not err in granting summary
judgment on the basis that, as a probationary employee, Hunter is
not entitled to relief under § 1983.
¶26 Affirmed.
/S/ KARLA M. GRAY
We concur:
/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
/S/ JAMES C. NELSON
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Justice Jim Rice specially concurring.
¶27 I concur with the Court’s holding herein, but under a different rationale.
¶28 The City of Great Falls has a charter form of government,
adopting the self-governing system in 1986. Article VI of the City
Charter establishes city government administration, and requires
the City Commission to hire a City Manager, in whom the Charter
confers executive authority, including the appointment, suspension
and removal of city employees. Article VI, Section 4(l), City
Charter. The Charter also establishes administrative departments
which are subject to the control and supervision of the City
Manager, including the City’s Fire Department. Article VI, Section
5, City Charter, and Ordinance 2.16.060. Pursuant thereto, Fire
Chief James Hirose, appointed and supervised by the City Manager,
adopted a Fire Department Policy Manual, the provisions of which I
find to be determinative herein.
¶29 Article XI, Section 5 of the Montana Constitution authorizes
adoption of self-government charters by municipalities, and
provides:
(3) Charter provisions establishing executive,
legislative, and administrative structure and
organization are superior to statutory provisions.
[Emphasis added.]
¶30 In accordance with our previous interpretation of this constitutional provision, the
City’s policy manual provisions governing the promotion and advancement of firefighters
superseded § 7-33-4122, MCA. In Woods v. City of Billings (1991), 248 Mont. 254, 811
P.2d 534, we found that a city charter provision which vested power to repair sidewalks in
the city administrator superseded § 7-14-4122, MCA, which authorized city councils to
12
regulate and repair sidewalks. Citing the superiority provision of Article XI, Section 5, we
held that:
The charter’s delegation of the responsibility for sidewalk repairs to the City
Administrator is superior to the statute’s ability to grant the power for such
repairs to the City Council.
Woods, 248 Mont. at 258, 811 P.2d at 536. Applying the same rationale to this matter, I
conclude that the City Charter’s delegation of fire department administration to the City
Manager, and the requirements for promotion adopted pursuant thereto, are superior to the
provisions of § 7-33-4122, MCA.
¶31 The City’s promotion requirements provide that a candidate for “confirmed
Firefighter” must have “at least” six months of experience as a firefighter, but additionally,
must have written recommendations from the first line supervisor and the Battalion Chief,
and must also pass a written examination, in addition to other requirements. City Firefighter
Promotion Policy, adopted December 4, 1995. Pursuant to these requirements, I must
conclude that Hunter did not progress beyond his probationary status, and was subject to at
will termination of his employment.
¶32 For these reasons, I affirm the District Court.
/S/ JIM RICE
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Justice Terry N. Trieweiler dissenting.
¶33 I dissent from the majority Opinion which first cites the
correct rule of statutory construction and then completely ignores
it as well as our controlling precedent in Hobbs v. City of
Thompson Falls, 2000 MT 336, 303 Mont. 140, 15 P.3d 418. Instead,
the majority Opinion adds language to § 7-33-4122, MCA, which is
not there and engages in a game of semantics to deny Kelly Hunter
his day in court.
¶34 Section 39-2-904(1)(b), MCA, provides:
(1) A discharge is wrongful only if:
. . . .
(b) the discharge was not for good cause and the employee
has completed the employer's probationary period of
employment; [Emphasis added.]
¶35 In this case, Kelly Hunter's probationary period of employment
with the Great Falls Fire Department was established by statute.
Section 7-33-4122, MCA, provides in relevant part that:
Term of appointment of firefighters – probationary
period. Each appointment shall be first made for a
probationary term of 6 months, and thereafter the mayor
or manager may nominate and, with the consent of the
counsel or commission, appoint such . . . firefighters,
who shall thereafter hold their respective appointments
during good behavior and while they have the physical
ability to perform their duties. [Emphasis added.]
¶36 Section 7-33-4122, MCA, clearly establishes a six-month
probationary period of employment for firefighters. It does not
establish a "minimum six-month term" as stated by the majority in ¶
14
18. The majority added that language in direct contravention of
its earlier admonition that:
Moreover, in construing a statute, our job ‘is simply to
ascertain and decide what is in terms or in substance
contained therein, and not to insert what has been
omitted. . . .’ Section 1-2-101, MCA.
Majority Opinion at ¶ 14.
¶37 In Hobbs, the plaintiff had been hired by the City of Thompson
Falls as a police officer on November 29, 1996, and was terminated
more than a year later on December 15, 1997. The City agreed that
he had been terminated without cause but contended he had not
completed his probationary period. The district court concluded he
was still a probationary employee at the time of his termination
because he had not yet been confirmed as a permanent member of the
police force. We concluded otherwise. In our Opinion, we stated
that because the Wrongful Discharge From Employment Act prohibits
discharge of an employee following his probationary period without
good cause and because § 7-32-4113, MCA, limits a police officer's
probationary period to not more than one year, confirmation by the
city council or commission cannot be denied following the one-year
period without good cause. Hobbs, ¶ 18.
¶38 The majority states there is a "crucial difference" between
the probationary employment statutes applying to police officers
and firefighters. The majority concludes that because the statute
which pertains to police officers provides for a probationary
period of employment of "not more than 1 year" and the statute
pertaining to firefighters provides for a "probationary term of 6
months," a firefighter's probationary period can actually be more
15
than six months. The majority is not impressed by the fact that
the statute provides for nothing other than a six-month period of
probationary employment for firefighters. Instead, the majority
talks about the local fire department's policy manual regarding
promotion to "confirmed firefighter." However, those criteria
simply relate to whether employment should be extended past the
probationary period or whether there is good cause for termination
following completion of the probationary period. In this case,
Hunter was employed past the probationary period and whether there
was good cause for his determination is a question of fact which
has not been decided by the District Court. Furthermore, where
inconsistent with statutory law, local administrative rules are
preempted. Therefore, I find nothing persuasive about the
majority's discussion of Great Falls Fire Department's policy
manual.
¶39 Aside from its disregard of statutory law and our precedent,
the majority Opinion does great harm to the substantive rights
provided to employees under Montana law. Montana law as set forth
in the Wrongful Discharge from Employment Act clearly intends that
employers be allowed to hire employees during a probationary period
without any commitment and that, during that time, the employer
retain the right to terminate the employee with or without cause.
However, once an employer has made a decision to retain an employee
past the probationary period, Montana law clearly prohibits
terminating that employee without good cause. If employers are
allowed to extend the probationary period beyond what is agreed to
16
with the employee at the outset of the employment or beyond what is
permitted by statute, then the statutory scheme is meaningless and
the protective purpose of the Wrongful Discharge From Employment
Act can be circumvented at will.
¶40 For these same reasons, I conclude that Hunter had a property
interest in his employment which could not be denied without due
process of law.
¶41 Therefore, I dissent from the majority Opinion. I would
reverse the summary judgment order of the District Court and remand
this case to the District Court for further proceedings to
determine whether there was good cause for Hunter's termination
from employment with the Great Falls Fire Department.
/S/ TERRY N. TRIEWEILER
Justice Jim Regnier joins in the foregoing dissent.
/S/ JIM REGNIER
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