NO. 87-349
I N THE SUPREME COURT O F THE STATE O F MONTANA
1988
LORRAINE C . FRIGON,
P l a i n t i f f and A p p e l l a n t ,
-vs-
MORRISON-MAIERLE, I N C . ; WILLIAM
G . E N R I G H T and LARRY W. LARSEN,
D e f e n d a n t s and R e s p o n d e n t s .
A P P E A L FROM: D i s t r i c t C o u r t of t h e T h i r t e e n t h 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 C o u n t y of Y e l l o w s t o n e ,
T h e H o n o r a b l e R o b e r t H o l m s t r o m , Judge p r e s i d i n g .
COUNSEL O F RECORD:
For A p p e l l a n t :
Nye & Meyer; Joan M e y e r N y e , B i l l i n g s , M o n t a n a
For R e s p o n d e n t :
Crowley, Haughey, Hanson, T o o l e & D i e t r i c h ; Sharon
Novak, B i l l i n g s , Montana
S u b m i t t e d on B r i e f s : May 26, 1988
Decided: A u g u s t 1, 1 9 8 8
Clerk
Mr. Justice R. C. McDonough delivered the Opinion of the
Court.
Appellant Lorraine C. Frigon appeals from the judgment
and order of the District Court of the Thirteenth Judicial
District, Yellowstone County, granting summary judgment in
favor of respondents Morrison-Maierle, Inc., William G.
Enright and Larry W. Larsen. We affirm.
Appellant frames nine issues for consideration by this
Court :
1. "Is a cause of action for breach of the employer's
covenant of good faith and fair dealing limited to wrongful
termination, where Employer breached its own handbook
requirements as to performance and related salary reviews."
2. "Does the record present genuine issues of material
facts as to whether Frigon has a cause of action for wrongful
discharge on a constructive discharge theory."
3. "Does the record present genuine issues of material
fact sufficient to present Frigon's cause of action for
defamation. "
4. "Does the record present genuine issues of material
fact as to whether a privilege exists to prevent a claim for
defamation in this case."
5. "Does the record present genuine issues of material
fact sufficient to present a cause of action for negligent
infliction of emotional distress on the part of any
Defendant. "
6. "Does the record present genuine issues of material
fact sufficient to present a cause of action for intentional
infliction of emotional distress on the part of any
Defendant."
7. "Is Frigon's claim for negligent or intentional
infliction of emotional distress barred by the exclusivity
provisions of Montana Workers Compensation Law?"
8. "Did the Court err in ordering Defendants their costs
on summary judgment, where Defendants recovered no damages
and did not ask for costs in their Motion for Summary
Judgment."
9. "Did the Court err in awarding Defendant as a cost on
summary judgment the expense of Defendants taking Frigon's
deposition."
Appellant was hired by respondent Morrison-Maierle as a
part-time secretary/receptionist in January of 1984, and paid
$5.50 per hour. Her immediate supervisors were respondents
Enright and Larsen. The "Employee's Handbook" produced by
Morrison-Maierle and given to appellant soon after she was
hired stated a policy of conducting employee performance
reviews and annual salary reviews. These reviews were to be
conducted by the employee's immediate supervisor. When she
was hired, appellant was informed that she would receive her
first salary review in six months. In April of 1984,
appellant became a full-time employee, and in July of 1984
she received a 2 9 $ per hour raise as part of a general annual
office raise. Appellant was told by Enright that she was
still due a merit raise, but he didn't have time to do a
performance evaluation on her.
In October of 1984 at appellant's request, she was given
a perf.ormance evaluation by respondent Larry Larsen, during
which she was told that her work was satisfactory with the
exception of some complaints about her filing things in the
wrong place.
In November of 1984, Philip Green became branch manager
of the office, and appellant's supervisor. Appellant
requested an annual salary review in January of 1985, but the
record does not show that such a review was ever conducted.
On July 15, 1985, appellant met with Green for a performance
review. During this meeting, appellant was informed that
while Green had recommended she receive a merit raise, the
Helena office (headquarters of Morrison-Maierle) had denied
the raise on the basis of prior negative comments about
appellant's job performance made to company officials in
Helena by Enright and Larsen.
Appellant testified in deposition that Green had
characterized the negative comments as "tremendous trifles"
or "tremendous trivials". Green indicated that he would
personally re-evaluate appellant's performance in three
months, and if warranted, recommend a merit raise. He
expressed his desire to work with appellant to resolve the
problems in her working relationship with Enright and Larsen.
He also said, however, that if the choice were his, he would
look for another job rather than continue working with
Enright and Larsen, who he said, "literally don't like the
way you squeeze the toothpaste." Appellant testified that
her response was that she would not let the two men bother
her, to which Green said, "Good for you."
Appellant requested that the negative comments be put
into writing. The two men were at first reluctant to do so,
but on July 25, 1985, she received a memorandum written by
Enright and Larsen containing a list of ten criticisms.
Appellant prepared a written response to these criticisms,
which she gave to Green on Friday, July 26. On Monday, July
29, appellant tendered her resignation, and on December 11,
1985, initiated this lawsuit, alleging breach of implied
covenant of good faith and fair dealing, constructive
discharge, slander and negligent or intentional infliction of
emotional distress. Respondents filed a motion for summary
judgment on February 25, 1987, which the District Court
granted. This appeal followed.
The standard for review of the grant or denial of a
summary judgment motion is the same as that used by the trial
court. Dare v. Montana Petroleum Marketing Co. (Mont. 1984),
687 P.2d 1015, 41 St.Rep. 1735. In order for summary
judgment to issue, the movant must show there is "no genuine
issue as to all facts considered material in light of the
substantive principles entitling the movant to a judgment as
a matter of law." Cereck v. Albertsonls, Inc. (1981), 195
Mont. 409, 411, 637 P.2d 509, 511. "If the movant has met
this burden, it then shifts to the non-moving party to
demonstrate a genuine issue of material fact. Mere denial or
speculation will not suffice, the non-moving party must show
facts sufficient to raise a genuine issue. " Gamble Robinson
Co. v. Carousel Properties (Mont. 1984), 688 P.2d 283, 287,
41 St.Rep. 1757, 1761.
I.
Appellant contends the respondents breached their
covenant of good faith and fair dealing with her by refusing
to give her performance and salary reviews when required by
the Employee's Handbook, and by denying her a merit raise on
the basis of negative and at least partially false comments
made by her former supervisors, to which she had little or no
opportunity to respond. Appellant disputes the District
Court's holding that a cause of action for breach of a
covenant of good faith and fair dealing did not lie because
appellant voluntarily resigned. According to appellant, our
decisions in Dare and Gates v. Life of Montana Insurance Co.
(1982) 196 Mont. 178, 638 P.2d 1063, establish breach of the
covenant of good faith and fair dealing as a tort separate
from wrongful discharge, thereby obviating the need for
termination in order for this cause of action to lie.
Appellant further argues that our decision in Drinkwalter v.
Shipton Supply Co. (Mont. 1987), 732 P.2d 1335, 44 St.Rep.
318, establishes that such a covenant can be breached
"on-the-job" through sexual harassment.
All of the decisions of this Court involving a covenant
of good faith and fair dealing have been limited to instances
of express employee termination or constructive discharge.
The appellant is correct in her assertion that breach of a
covenant of good faith and fair dealing is a separate tort
from wrongful discharge. The latter is premised on acts by
the employer in violation of public policy, while the former
is broader, and does not require a public policy violation.
Dare, 687 P.2d at 1019-20. However, both Dare and Gates
involved employee terminations. Breach of the covenant of
good faith and fair dealing was established as a tort
separate from wrongful discharge, but applicable only in
cases of employee termination.
Our holding in Drinkwalter also fails to support
appellant's argument. Our holding in that case simply stated
the plaintiff could plead established common-law causes of
action in addition to distinct and different statutory causes
of action such as the plaintiff's sexual discrimination claim
under the state Human Rights Act. Drinkwalter, 732 P.2d at
1338. The fact remains that the covenant of good faith and
fair dealing is applicable only in cases of employee
termination in this state.
The record contains the letter in which appellant
voluntarily resigned from her job. There was thus no express
termination. On these facts, there is no genuine issue of
material fact as to appellant's claim for breach of the
covenant of good faith and fair dealing. As we will discuss
below, appellant has failed to set forth sufficient facts to
establish constructive discharge. Appellant's argument
therefore amounts to "mere denial or speculation" which is
insufficient under our test in Gamble to avoid summary
judgment. The District Court's decision to grant summary
judgment on appellant's claim of breach of the covenant of
good faith and fair dealing was therefore correct, and we
affirm the court on this issue.
Appellant next argues that she presented genuine issues
of material fact as to her claim of constructive discharge.
She argues that she was forced to resign because "the
employer had deliberately accepted Enright and Larsen's
criticisms over the recommendations of her supervisor,
contrary to its own policies." Appellant points to comments
by Green and former Morrison-Maierle secretary Phyllis
Swindell that they would leave rather than continuing to work
with Enright and Larsen as further evidence of appellant's
reasonable belief that she was being forced to resign.
Appellant's brief states the test in Montana for
constructive discharge as "whether sufficient words or
actions by the employer 'would logically lead a prudent
person to believe his tenure had been terminated.'" Hannifin
v. Retail Clerks Int'l Ass'n (1973), 162 Mont. 170, 178, 511
P.2d 982, 987. She also notes, "A determination of
constructive discharge depends on the totality of
circumstances, and must be supported by more than an
employee's suggestive [sic] judgment that working conditions
are intolerable," and cites Snell v. Montana Dakota
Utilities Co. (1982), 198 Mont. 56, 643 P.2d 841. There is
room to dispute this characterization. Hannifin did not deal
with constructive discharge, nor has that doctrine been
recognized beyond discrimination cases such as Snell, where a
high burden of proof was placed on the plaintiff.
Even assuming that appellant correctly states the test
for constructive discharge in Montana, the facts do not
support her argument. Appellant relies on the fact that she
was denied a raise due to negative comments by Enright and
Larsen. Looking at the "totality of the circumstances," this
was far from a situation that would lead a "prudent person to
believe [her] tenure had been terminated." She was denied a
raise, but was never told that she was going to be fired. On
the contrary, appellant testified in deposition that Green
stated he wanted appellant to stay at her job, he would
personally re-evaluate her in three months and if warranted
recommend a raise, and he wanted all of the parties concerned
to sit down and work out any differences (a suggestion
initially made by Larsen). Green's statement that if he were
in appellant's position, he would contemplate quitting does
not rise to the level of intimating to appellant that she was
being terminated. The appellant was instead laboring under
her own subjective judgment that working conditions at
Morrison-Maierle had become intolerable.
The appellant fails to raise a genuine issue of material
fact as to her claim of constructive discharge. The District
Court was correct in granting summary judgment, and we affirm
the court's order on this issue.
111.
Appellant next presses her argument that she was defamed
by respondents Enright and Larsen. According to appellant,
the oral remarks of Enright and Larsen amounted to slander,
and when those criticisms were reduced to writing, they were
libelous.
The memorandum written by Enright and Larsen at
appellant's request contained the following ten criticisms of
her job performance:
Correspondence filing--copies not made or
copies lost or copies placed in wrong file.
Correspondence filed in wrong file, have had
to send out to get copies from clients so we
could have in our files.
Reading file not always complete--every piece
of correspondence should be filed for reading.
Telephone questions pretaining [sic] to
specific projects are to and should be
referred to the project manager
Phone is a business phone--not to be abused.
Does not realize importance of position:
prompt and accurate measures should be taken
concerning typing, packaging or mailing items
requested as soon as possible
Lacking confidence in what she does.
Can not or does not want to be creative--rely
on others.
Does not understand or remember content of
correspondence.
Repetitious tasks not undertaken without
repeted [sic] help.
Loss of a $100,000 check because of
mis-address, after very specific instructions.
The Montana legislature has defined defamation by
statute as follows:
Libel Defined. Libel is a false and unprivileged
publication by writing, printing, picture, effigy,
or other fixed representation to the eye 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.
Section 27-1-802(3), MCA.
Slander defined. Slander is a false and
unprivileged publication other than libel which:
...
(3) tends directly to injure him in respect to his
office, profession, trade, or business, either by
imputing to him general disqualification in those
respects which the office or other occupation
peculiarly requires or by imputing something with
reference to his office, profession, trade, or
business that has a natural tendency to lessen its
profit.
Section 27-1-803, MCA.
Appellant argues that the comments made by Enright and Larsen
tended to injure her in her occupation, as they called into
question her competence, and tended to injure her
financially, as they prevented her from obtaining a raise.
The test applied by this Court in defamation cases is
stringent. In Wainman v. Bowler ( 1 9 7 8 ) , 176 Mont. 91, 576
P.2d 268, we stated:
Defamatory words to be actionable . ..
must be of
such a nature that the court can presume as a
matter - - that they will tend to d i s g r a c e a d
of law
degrade [the plaintiff] or cause him to be shunned
and avoided. It is not sufficient, standing alone,
that the language is unpleasant and annoys or irks
him, and subjects him to jests or banter, so as to
affect his feelings.
Waiman, 576 P.2d at 271 (emphasis supplied). The comments
made by Enright and Larsen were directed at areas of
appellant's job performance they felt were in need of
improvement. The fact that these comments were not initially
relayed to appellant may not have been good business
practice, but there is no evidence to support a holding that
they disgraced or degraded appellant as a matter of law.
According to appellant's own testimony, her supervisor
characterized the comments as trivial and proposed a
re-evaluation in a short time. If we were to accept
appellant's argument, every time an employee was denied a
raise on the basis of dissatisfaction with elements of their
job performance, the employer could be subjected to a
defamation suit.
Furthermore, a basic tenet of the law of defamation is
that. an expression of opinion is generally not actionable.
50 Am Jur 2d, Libel and Slander, § 14; see, e.g. Janklow v.
Newsweek, Inc., 759 F.2d 644 (8th Cir. 1985). There is
nothing in the comments to show a factual allegation that
appellant was generally disqualified for her job. If that
were the case, presumably Enright and Larsen would have taken
steps to have appellant terminated. Instead, appellant's
deposition testimony shows that Larsen wished to sit down
with Enright, Green and appellant and work out the problem.
The facts relied on by appellant to show defamation instead
reflect opinions rendered in the context of the evaluation of
her performance on the job.
Appellant's allegation that the District Court made an
improper finding of fact in ruling that the comments quoted
above were not defamation is incorrect. As we have held
previously, facts are not found on summary judgment, as Rule
56, M.R.Civ.P., requires that there be no issue of material
fact in order for summary judgment to issue. Major v. North
Valley Hospital (July 15, 1988), No. 87-511, slip op. at 4;
citing Boise Cascade Corp. v. First Security Bank of Anaconda
(1979), 183 Mont. 378, 600 P.2d 173. The evidence in this
case does not raise a genuine issue of material fact
regarding any possible defamation of appellant. Upon
reviewing that evidence, the District Court correctly
concluded that summary judgment would be proper on this
issue, and we affirm that decision. Having so held, it will
not be necessary for us to proceed further and consider the
issue of privilege framed by appellant.
IV.
Appellant next contends that she set forth facts
sufficient to establish a cause of action for negligent or
intentional infliction of emotional distress. As to
negligent infliction of emotional distress, appellant asserts
this Court recognized. that negligence can be a proper basis
for recovery in a wrongful discharge case in Crenshaw v.
Bozeman Deaconess Hospital (Mont. 1984), 693 P.2d 487, 41
St.Rep. 2251. Appellant contends that the record contains
genuine issues of material fact on this issue, in that
"Enright and Larsen had to be either negligent or
intentionally malicious in making statements about Frigon"
when the mistakes complained of were attributable to others,
including Enright and Larsen themselves. She also states
that Morrison-Maierle was negligent in failing to determine
whether the criticisms were warranted.
Appellant and respondents note that this Court has
recognized the tort of negligent infliction of emotional
distress in only limited situations, and cite Versland v.
Caron Transport (1983), 206 Mont. 313, 671 P.2d 583, as their
example. In Versland, we enunciated a three-part test for
this tort:
1. The shock must result from a direct emotional
impact upon the plaintiff from the sensory and
contemporaneous perception of [an] accident, as
contrasted with learning of the accident from
others after its occurrence.
2. The plaintiff and the victim must be closely
related, as contrasted with an absence of any
relationship or the presence of only a distant
relationship.
3. Either death or serious physical injury of the
victim must have occurred as a relult of the
defendant's negligence.
Versland, 671 P.2d at 588. Appellant does not meet this
test, nor is her argument based on the Crenshaw case
convincing. In Crenshaw, we held that an action for
negligence could lie in a case of wrongful discharge. As
discussed above, appellant has not presented facts sufficient
to establish a cause of action for wrongful discharge.
Appellant's claim of intentional infliction of emotional
distress is premised on our decision in Gates and the
Restatement (Second) of Torts. Appellant notes that in
Gates, we addressed the plaintiff's claim for intentional
infliction of emotional distress, although we did not uphold
it. The opinion in Gates cited Kelly v. Lowney & Williams,
Inc. (1942), 113 Mont. 385, 126 P.2d 486 (recognizing
"recovery for damages for personal injuries occasioned by
fright or mental shock though there be no physical contact").
Emotional distress under Montana law has been and
remains primarily an element of damages rather than a
distinct cause of action. See, e.g. Gurnsey v. Conklin Co.,
Inc., (Mont. 1988), 751 P.2d 151, 45 St.Rep. 1. Appellant,
however, argues that our holding in Gates opened the door for
such a cause of action, and urges that we apply the following
elements to this case:
One who by extreme and outrageous conduct
intentionally or recklessly causes severe emotional
distress to another is subject to liability for
such emotional distress, and if bodily harm to the
other results from it, such bodily harm.
Restatement (Second) of Torts § 46 (1965).
Appellant asserts that "Enright and Larsen intentionally
and/or recklessly made false, negative statements about
[appellant]". She argues that the only remaining question is
thus whether the conduct of the two men was "extreme and
outrageous". Appellant asserts that a material question of
fact exists as to that conduct, citing her testimony that
Green characterized the comments as trivial and yet expressed
hesitance about giving appellant the written memorandum
because of its harshness.
Appellant does not present a case that merits
recognition by this Court of intentional infliction of
emotional distress as a cause of action. Comment "d" to
Section 46 of the Restatement explains the nature of the
conduct necessary to impose liability:
Liability has been found only where the conduct has
been so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and
utterly intolerable in a civilized community.
Restatement (Second) of Torts, S 46, Comment d (1965). In
Johnson v. Supersave Markets, Inc. (Mont. 1984), 686 P.2d
209, 41 St.Rep. 1495, this Court enunciated a test for
compensation of intentional infliction of emotional distress.
In the context of an action for unlawful arrest or
imprisonment, we held that such an element of damages would
only be proper if the tortious conduct complained of resulted
in "a substantial invasion of a legally protected interest
and caused a significant impact upon the person of the
plaintiff." Johnson, 686 P.2d at 213 (emphasis in original) .
There is no evidence in the record of this case which
would support a claim for intentional infliction of emotional
distress. The comments made by Enright and Larsen, and the
failure of Morrison-Maierle to give appellant a raise are
hardly instances of conduct that goes "beyond all possible
bounds of decency. " Nor has appellant presented facts
showing a substantial invasion of her legally protected
interests. The law has yet to protect a person's interest in
receiving a merit raise.
The District Court correctly granted summary judgment on
this issue, and we affirm that decision. Having so held, it
is not necessary for us to proceed to the issue involving
Montana Workers' Compensation law framed by appellant.
v.
Finally, appellant asserts that respondents were not
entitled to costs in this case. She asserts that the
District Court erred in awarding costs in that it did not
follow Montana statutes on the subject:
25-10-101. When costs allowed, of course, to
plaintiff. Costs are allowed, of course, to the
plaintiff upon a judgment in his favor in the
following cases:
(3) in an action for the recovery of money or
damages, exclusive of interest, when the plaintiff
recovers over $50;
25-10-102. When costs allowed, of course, to
defendant. Costs must be allowed, of course, to
the defendant upon a judgment in his favor in the
actions mentioned in 25-10-101.
Sections 25-10-101 and 25-10-102, MCA. Appellant argues that
under these statutes, respondents would be entitled to costs
only if the judgment of the District Court awarded them a
recovery of at least $50. No damages were awarded by the
court, and appellant therefore asserts that no costs should
have been allowed.
The prevailing party is generally entitled to costs.
See, e.g. Carroccia v. Todd (1980), 189 Mont. 172, 615 P.2d
225. While the particular situation presented by this case
is rarely before this Court, we are guided by our decision in
Marcus v. Bowman (1940), 110 Mont. 412, 101 P.2d 68. In
Marcus, we upheld an award of costs to a defendant whose
counter-claim had been dismissed, but who prevailed on the
merits of the plaintiff's claim. The defendant was awarded
nothing by the court as a recovery, but we upheld the award
of costs to defendant as the prevailing party.
Appellant asserts that in particular, the District Court
erred in allowing the cost of taking her deposition as part
of the costs awarded to respondents. She asserts that the
deposition was taken solely for the convenience of
respondents, and was therefore not includable in the costs
awarded under our decision in Morrison-Maierle v. Selsco
(1980), 186 Mont. 180, 606 P.2d 1085. However, our decision
in Roy v. Neibauer (Mont. 1981), 623 P.2d 555, 38 St.Rep. 173
specifically held that depositions necessary for disposing of
litigation by summary judgment were includable as costs. In
this case, the briefs of both appellant and respondents
before the District Court relied heavily on testimony taken
from appellant's deposition in arguing for and against
summary judgment. The memorandum of the District Court also
referred to information from that testimony. Appellant's
deposition was therefore necessary for disposal of this
litigation by summary judgment, and was properly included by
the District Court in the award of costs. We affirm the
ruling of the District Court on this issue.
Our review of the record in this case shows that
appellant failed to present facts sufficient to raise a
genuine issue of material fact concerning any of her alleged
causes of action. The District Court was therefore correct
in granting respondents' motion for summary judgment.
We affirm the judgment of the District Court.
&pa/&
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