NO. 88-99
I N THE SUPREME COURT OF THE STATE OF MONTANA
1988
WILLIAMJ . RUPNOW, J R . ,
P l a i n t i f f and A p p e l l a n t ,
-vs-
C I T Y OF POLSON,
Defendant and Respondent.
APPEAL FROM: D i s t r i c t Court of t h e Twentieth J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f Lake,
The H o n o r a b l e C . B . McNeil, J u d g e p r e s i d i n g .
COUNSEL O F RECORD:
For Appellant:
Bothe & L a u r i d s e n , P.C.; David W. L a u r i d s e n , Columbia
F a l l s , Montana
For Respondent:
James E . H a n d l e y , P o l - s o n , Montana
S u b m i t t e d on B r i e f s : J u l y 8 , 1988
Deci-ded: September 1 5 , 1988
Filed: SEP 1 5 1988
Clerk
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.
William J. Rupnow, plaintiff, appeals the decision of
the District Court of the Twentieth Judicial District, Lpke
County, granting the City of Polson, defendant, summary
judgment, pursuant to Rule 56, M.R.Civ.P., upon all three
counts Rupnow sets forth in response to his termination from
the City of Polson1s police department. The three counts
Rupnow bases his complaint upon are wrongful discharge,
breach of the implied covenant of good faith and fair
dealing, and negligence. We affirm the District Court's
decision.
Rupnow raises the following issues on appeal:
1. Whether the District Court erred in granting the
City of Polson's motion for summary judgment regarding
Rupnowls claims based upon:
a. wrongful discharge
b. breach of the implied covenant of good faith
and fair dealing
c. negligence.
Rupnow, a former Chief of Police for the City of Fort
Benton, began working as a police officer for the City of
Polson on July 15, 1985. Despite an ambiguity that exists
regarding the length of a newly hired police officer's
probationary status, Rupnow accepted the position with the
knowledge that he would be on a probationary status for the
first year. In light of Rupnow's past experience within law
enforcement, Ronald Buzzard, who subsequently became the
Chief of Police for the City of Polson, conveyed to Rupnow
that the one year probation period should not be a problem
for him. Rupnow was to be evaluated once every three months
throughout the probationary period.
Rupnow was first evaluated on September 30, 1985 by
then-Assistant Chief of Police Buzzard. The evaluator
Buzzard stated on the evaluation form that Rupnow was "doing
a good job, no apparent difficulties." The evaluation marks
given to Rupnow at this time supported this conclusion.
Buzzard subsequently testified that although he experienced a
couple difficulties with Rupnow, he did not mention the
difficulties because he did not want "to come down on him too
hard" during the first three month period.
Rupnow's second evaluation occurred on January 20, 1986
by the then-Acting Chief of Police Buzzard. Twenty categories
were listed on the performance evaluation report, Buzzard
determined that Rupnow met the department's standards in
seventeen areas, exceeded the standard in one area, and
required improvement in two areas. In rating Rupnow's
overall performance, Buzzard checked the box that stated
"requires improvement." Buzzard's written comments on this
evaluation included the following:
Section B: Record j b STRENGTHS and superior
o
performance incidents.
Officer Rupnow is very knowledgeable in police work
and has a lot of potential. He gets along well
with fellow employees and is courteous to the
public. He has a lot of ideas which will benefit
the police department and city in the future.
C: Record PROGRESS ACHIEVED - attaining
Section - in
reviously set goals for improved work performance,
Tor personal, -
or aualifications.
None previously set.
Section D: Record specific GOALS or IMPROVEMENT
PROGRAMS - - undertaken, during next evaluation
to be
period.
Officer Rupnow is to spend more time patrolling the
streets of Polson looking for traffic violators,
patrolling alleys and providing basic police
services.
Record specific work performance
-
or @ behavior requiring improvement
-
or correction
Officer Rupnow is spending too much time sitting
around doing nothing. This includes staying in the
sheriff's office too long and taking too long of
coffee breaks. This is possibly the reason his
volume of work is low.
Rupnow refused to sign this second performance evaluation and
instead presented a formal protest to the mayor of Polson
together with his formal application for the permanent Chief
of Police position that was then available.
Rupnow was informed on March 21, 1986, at a meeting
attended by Councilwoman Malgren, Mayor DeVries, Sergeant
Witts, Chief Buzzard, and Rupnow, that his appointment as
probationary Polson police officer was being withdrawn.
Chief Buzzard and Mayor DeVries expressed to Rupnow that a
primary concern of theirs was his tendency to refuse to
follow Chief Buzzard's orders. The reasons Buzzard
recommended to the Mayor that Rupnow's appointment be
withdrawn were (1) failure to attend a training
meeting; (2) failure to complete a log
book; (3) complaints regarding Rupnow "setting up" a
councilman for selling alcohol to minors; and (4) complaints
by Rupnow that a fellow officer had made derogatory comments
about him. The withdrawal was confirmed by a letter from
Mayor DeVries dated March 24, 1986.
Rupnow then brought a complaint against the City of
Polson in the Twentieth Judicial District Court, Lake County,
alleging wrongful discharge, breach of the implied covenant
of good faith and fair dealing, and negligence. The District
Court granted the City of Polson's motion for summary
judgment. Rupnow appeals.
la. Wrongful Discharge
The first issue Rupnow raises on appeal is whether the
District Court erred in granting the City of Polson's motion
for summary judgment regarding Rupnow's claim based upon
wrongful discharge.
Under Rule 56(c), M.R.Civ.P., a district court may grant
a party's motion for summary judgment when the court finds
that "no genuine issue as to any material fact" exists.
Evans v. Montana Nat'l Guard (Mont. 1986), 726 P.2d 1160,
1161, 43 St.Rep. 1930, 1932; Clarks Fork Nat'l Bank v. Papp
(Mont. 1985), 698 P.2d 851, 853, 42 St.Rep. 577, 579; Cereck
v. Albertson's Inc. (1981), 195 Mont. 409, 411, 637 P.2d 509,
511. As the moving party, the City of Polson has the initial
burden to present the court with evidence that excludes any
real doubt as to the existence of a genuine issue of material
fact and that therefore it is entitled to a judgment as a
matter of law. If the City of Polson meets this burden, the
burden then shifts to the opposing party, Rupnow, to
establish by substantial evidence the existence of genuine
issue of material fact. VanUden v. Hendricksen (1980), 189
Mont. 164, 169, 615 P.2d 220, 223-24; Dooling v. Perry
(1979), 183 Mont. 451, 456, 600 P.2d 799, 802.
In the present case, under Count I, Rupnow claims that
he was wrongfully discharged from the Polson's police
department. Specifically, Rupnow argues that the City of
Polson violated public policy by not following the
progressive discipline policy adopted by the City of Polson
on March 3, 1986. This section of the City of Polson's
personnel policy reads as follows:
10. PROGRESSIVE DISCIPLINE. It is the
responsibility of authority in charge to insure
that all City employees subject to discriplinary
[sic] measure receive corrective action appropriate
to the offense and progressive in nature. The
following procedure should be used:
1. First Offense. . . .Oral Warning
2. Second Offense . . .Written Warning
3. Third Offense. . . .Suspension w/out Pay
4. Fourth Offense . . .Dismissal
It should also be understood that, depending upon
the nature and circumstances of the violation, the
authority in charge may use any disciplinary
measure appropriate within their judgment.
The City of Polson disputes Rupnow's allegations and argues
that it pursued the alternative method of discipline provided
in the policy, which allows the authority in charge to use
their judgment in using any appropriate disciplinary measure
after considering the nature and circumstances of the
violation. The District Court found that the City of Polson,
through the Mayor's and Buzzard's affidavits, met its burden
of proof by showing that no genuine issues of material fact
existed with respect to a public policy violation, but that
Rupnow failed, after the burden shifted to him, to show by
substantial evidence that genuine issues of material fact
exist to show that the City of Polson did not comply with
its personnel policy. We agree.
To successfully maintain the tort of wrongful discharge,
a plaintiff must show that the defendant violated a public
policy. Dare v. Montana Petroleum Marketing Co. (1984), 212
Mont. 274, 281, 687 P.2d 1015, 1019; Nye v. Dept. of
Livestock (1982), 196 Mont. 222, 228, 639 P.2d 498, 502;
Keneally v. Orgain (1980), 186 Mont. 1, 5-6, 606 P.2d 127,
129. Rupnow argues that a violation of the City of Polson's
personnel policy is a violation of public policy and that the
City of Polson violated its personnel policy when it did not
follow the progressive disciplinary measures outlined in the
policy.
The City of Polson's personnel policy, however,
specifically allows for an alternative means of disciplining
city employees. In this case, the City of Polson presented
substantial evidence to the District Court that its personnel
pursued the alternative approach available to them and
exercised their judgment in imposing disciplinary measures
upon probationary officer Rupnow, which included oral
warnings and written evaluations specifying areas that
required improvement. Rupnow, on the other hand, failed to
address the City of Polson's option to pursue the alternative
method of disciplining employees and instead merely offered
its conclusion of law that since the City of Polson never
followed the progressive disciplinary method, it violated its
personnel policy and therefore violated public policy.
Conclusions of law will not suffice in opposing a movant's
motion for summary judgment. VanUden, 189 Mont. at 169, 615
P.2d at 224; Silloway v. Jorgenson (19651, 146 Mont. 307,
310, 406 P.2d 167, 169; Gates v. Life of Montana Insurance
Co. (1982), 196 Mont. 178, 182, 638 P.2d 1063, 1066. We
therefore affirm the District Court's finding that the City
of Polson did not violate its personnel policy, and therefore
no genuine issue of material fact exists with respect to the
issue of a public policy violation.
of Good Faith -- Dealinq
lb. Implied Covenant - - and Fair
The second issue Rupnow raises on appeal is whether the
District Court erred in granting the City of Polson's motion
for summary judgment regarding Rupnow's claim based upon
breach of the implied covenant of good faith and fair
dealing.
This Court first adopted the implied covenant of good
faith and fair dealing in Gates, 196 Mont. at 184, 638
P.2d at 1067, and then extended it to probationary employment
relationships in Crenshaw v. Bozeman Deaconess Hospital
(Mont. 1984), 693 P.2d 487, 491, 41 St.Rep. 2251, 2258. The
standard, however, as to whether the covenant applies remains
the same under all circumstances. In Dare we held that the
applicable standard in determining:
[wlhether a covenant of good faith and fair dealing
is implied in a particular case depends upon
objective manifestations by the employer giving
rise to the employee's reasonable belief that he or
she has job security and will be treated fairly.
Dare, 212 Mont. at 282, 687 P.2d at 1020.
The District Court found that Rupnow "failed to show the
existence of any facts to support a claim of any objective
manifestation by the City to support [his] expectations." We
agree. Rupnow first asserts that the City of Polson violated
its personnel policy and therefore breached the implied.
covenant of good faith and fair dealing. This assertion by
Rupnow is irrelevant since we have affirmed the District
Court's finding that the City of Polson did not violate its
personnel policy.
Rupnow next attempts to argue the existence of objective
manifestations that would lead him reasonably to believe that
he had job security by pointing towards his two performance
evaluations, and comments made to him by Buzzard, stating
that the one year probation period should not be a problem
for Rupnow. The District Court found that Buzzard's comment
that the probationary period should not be a problem for
Rupnow, by itself, is not sufficient to satisfy Rupnow's
burden in opposing the City of Polson's motion for summary
judgment. The court found that the comment was no more than
an acknowledgment by Buzzard of Rupnow's prior experience in
law enforcement. We affirm and further hold that Rupnow's
two performance evaluations, in addition to Buzzard's
comment, still do not establish objective manifestations by
the City of Polson that would lead an employee, Rupnow,
reasonably to believe that he had job security. Rupnow's
second evaluation, although satisfactory overall, definitely
gave Rupnow indications that he needed to improve his
performance in specific areas.
In addition, Rupnow argues and the record indicates that
a dispute exists as to whether Chief Buzzard or Mayor DeVries
warned him that his probationary status was in jeopardy.
Oral warnings that an employee's probationary status is in
jeopardy are not mandatory. The absence of such warnings are
merely considered in light of other evidence when determining
whether objective manifestations existed to lead to an
employee's reasonable belief of job security. Considering
all of the evidence Rupnow presents in an attempt to show
that he had a reasonable belief of job security, we hold that
the absence of such warnings, by themselves, do not
constitute a material fact that would bar the District Court
from granting the City of Polson's motion for summary
judgment.
lc. Negligence
The last issue Rupnow raises on appeal is whether the
District Court erred in granting the City of Polson's motion
for summary judgment regarding his claim based upon
negligence.
This Court has recognized that negligence is a proper
basis for recovery in wrongful termination cases. Flanigan
v. Prudential Federal Savings & Loan (Mont. 1986) , 720 P. 2d
257, 263, 43 St.Rep. 941, 948; Crenshaw, 693 P.2d at 493, 41
St.Rep. at 2259. We have also recognized that summary
judgment is appropriate in negligence cases when the standard
is met. The standard remaining that no genuine issue of any
material fact exists so that as a matter of law the
non-moving party cannot recover. Morales v. Tuomi (Mont.
1985), 693 P.2d 532, 535, 42 St.Rep. 60, 63-64.
In the present case, Rupnow first argues under this
claim that the City of Polson breached its duty by not
following its personnel policy when terminating Rupnocv. This
argument of Rupnow's is irrelevant since we have already
affirmed the District Court's finding that the City of Polson.
did not violate its personnel policy.
Rupnow next argues that Chief Buzzard failed to
investigate adequately certain allegations against him.
Chief Buzzard obviously did not conduct an investigation to
F.upnowl satisfaction, however, Rupnow does not bring forth
s
evidence to raise a genuine issue of material fact that
Buzzard was negligent in his investigation. Rupnow merely
offers conclusory statements, stating in his opinion what a
reasonable investigation would include.
In setting forth his argument, Rupnow relies upon
Crenshaw, where this Court held that the employee's
allegation of negligence was clearly established. In
reaching this holding we took note of the evidence offered by
the employee, specifically a former director's testimony that
he had failed to interview all of the appropriate witnesses,
an administrator's admissions that he failed to interview key
witnesses, and testimony by an expert on personnel
management, stating that the allegations upon which the
discharge was made were not properly investigated. Crenshaw,
693 P.2d at 493, 41 St.Rep. at 2258-59.
The evidence set forth in Crenshaw is not analogous to
the evidence presented by Rupnow. Rupnow did not have an
expert testifying that Buzzard improperly investigated an
incident. Buzzard testified that all key wjtnesses were
interviewed at least once. Rupnow failed to meet his burden
in bringing forth evidence that would raise a genuine issue
of material fact that the City of Polson was negligent. His
statements, for example, that a reasonable investigation
would have "consisted of calling the various parties together
... to determine an exact chronology of events and a more
reasonable determination as to who was telling the truth" are
merely conclusory. We therefore hold that the District Court
properly found tha.t the City of Polson was entitled to
judgment as a matter of law based upon Rupnow's claim of
negligence. /
Affirmed .
-
We Concur:
n