No. 89-06
I N T H E SUPREME COURT O F T H E S T A T E O F MONTANA
1989
J O H N KENNETH F I N S T A D ,
P l a i n t i f f and R e s p o n d e n t ,
-vs-
THE MONTANA POWER COMPANY,
D e f e n d a n t and A p p e l l a n t ,
A P P E A L FROM: D i s t r i c t C o u r t of t h e N i 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 G l a c i e r ,
T h e H o n o r a b l e R . D . M c P h i l l i p s , Judge p r e s i d i n g .
COUNSEL O F RECORD:
For A p p e l l a n t :
R o b e r t T . O ' L e a r y and P a t r i c k T . F l e m i n g a r g u e d ,
Montana Power Co., B u t t e , Montana
For R e s p o n d e n t :
J o h n C . H o y t ; A l e x a n d e r B l e w e t t , 111, argued; H o y t &
Blewett, G r e a t Falls, Montana
Submitted: O c t o b e r 17, 1989
:- Decided: January 9 , 1 9 9 0
0
Filed: >- .,
Justice Fred J. Weber delivered the Opinion of the Court.
Mr. Finstad sued Montana Power Company (MPC) in the
Ninth Judicial District Court, Glacier County, alleging a
violation of the implied covenant of good faith and fair
dealing in his termination or constructive discharge. The
District Court denied MPC's motions for a directed verdict
which were made at the close of the plaintiff's case-in-chief
and at the conclusion of all testimony. The jury awarded Mr.
Finstad $433,500 in compensatory damages. MPC moved for a
judgment notwithstanding the verdict and a new trial and the
motions were denied. MPC appeals. We reverse.
The determinative issues are:
1. Was there substantial credible evidence to support a
conclusion that Mr. Finstad was either actually or construc-
tively discharged?
2. Does the implied covenant of good faith and fair
dealing apply to termination following an employer's offer of
a transfer of employment without change in compensation or
other benefits where the employee refused the transfer?
Mr. Finstad was employed by MPC for 223 years as a field
engineer. For the last 15 of those years, he was stationed
by MPC at Cut Bank, Montana. As a field engineer he was in
charge of MPC's oil and gas exploration and production,
principally in northcentral Montana and southern Alberta,
Canada. Both parties agree that Mr. Finstad was a capable,
loyal and devoted employee. Mr. Finstad remained employed in
that capacity until June 2, 1982. On that date, despite the
urgings of his supervisor in MPC, he refused to accept a
transfer from Cut Rank to Butte and his employment ended.
Mr. Finstad contends that he was fired. MPC contends that he
refused the transfer and chose to leave MPC. Because the
facts are critical to this decision, we will later detail the
facts which have led us to the conclusion that Mr. Finstad
was neither actually discharged nor constructively discharged
and that he refused to accept a transfer from Cut Bank to
Butte without a change in job responsibilities, earnings or
benefits. That transfer is herein described as a lateral
transfer.
On May 29, 1985, Mr. Finstad filed his complaint against
MPC. He alleged that he had been employed for 2 : years,
2
with the last 15 in Cut Bank; that his principal responsibil-
ities were all phases of drilling and production problems;
that he gave his full loyalty, devotion and energies for the
benefit of MPC; and that he was receiving a substantial
salary as a petroleum engineer. In addition he alleged that
on June 2, 1982 he was informed by officials of MPC that they
were eliminating his job assignment and position at Cut Bank
"for the stated reason that the Montana Power Company was
eliminating future drilling in southeast Alberta and except
for workovers and shallow holes, was shifting away from
northern Montana to various other areas: - - which - -
all of is and
was false." (Emphasis supplied.) In addition he alleged
that MPC informed him that if he did not voluntarily move to
Butte he would be discharged and that the reasons for dis-
charge were false. He also alleged that the policy of MPC
was to provide severance pay which had been intentionally
withheld; and that MPC had violated the implied covenant of
good faith and fair dealing in regard to the "termination or
constructive discharge of plaintiff." The last basic allega-
tion was that the representations made by MPC to Mr. Finstad
were knowingly false and designed to eliminate plaintiff from
the payroll of the defendant even though he was a long time,
loyal and faithful employee.
There was no pretrial order. The jury was thoroughly
instructed on the application of the covenant of good faith
and f a i r d e a l i n g . However, t h e s p e c i a l v e r d i c t form f a i l e d
t o p r e s e n t t h e j u r y w i t h more t h a n one c o n c l u s o r y q u e s t i o n on
its application. After a 5 day trial commencing May 23,
1988, the jury returned a special verdict in favor of M r .
Finstad. Following i s t h e e n t i r e v e r d i c t :
[WIE THE J U R Y , i n t h e above e n t i t l e d c a s e , answer
t h e questions submitted t o u s i n t h i s s p e c i a l
v e r d i c t a s follows:
Q u e s t i o n No. 1, Do you f i n d t h a t D e f e n d a n t , Montana
Power Company b r e a c h e d t h e c o v e n a n t o f good f a i t h
and f a i r d e a l i n g owed t o P l a i n t i f f and t h a t such
b r e a c h was a c a u s e o f damages t o P l a i n t i f f ?
Answer: Yes - No -
X
Q u e s t i o n No. 2 : What i s t h e amount o f compensatory
damages s u s t a i n e d by P l a i n t i f f ?
Answer: $433,500.00.
Q u e s t i o n No. 3: Do you f i n d t h a t p u n i t i v e damages
s h o u l d be a s s e s s e d a g a i n s t D e f e n d a n t ?
Answer: Yes No. -
X
F o l l o w i n g t h e d e n i a l o f MPC's m o t i o n f o r entry of judgment
notwithstanding the verdict and m o t i o n for new trial, MC
P
appealed.
Was there substantial credible evidence to s.upport a
conclusion t h a t M r . F i n s t a d was e i t h e r a c t u a l l y o r c o n s t r u c -
t i v e l y discharged?
Because o f t h e nature of our holding, we w i l l make a
d e t a i l e d review of e s s e n t i a l f a c t u a l proof. Because t h i s i s
an appeal from a jury verdict, this Court must view the
e v i d e n c e i n t h e l i g h t most f a v o r a b l e t o t h e p r e v a i l i n g p a r t y ,
and d e t e r m i n e w h e t h e r s u b s t a n t i a l c r e d i b l e evidence i n the
record supports t h e jury verdict. R o t t r e l l v . American Rank
(Mont. 1989), 773 P.2d 694, 46 St.Rep. 561. In the absence
of probative facts to support the jury's verdict, it may be
overturned. Jacobsen v. State of Montana (Mont. 1988), 769
P.2d 694, 697, 46 St.Rep. 207, 211.
MPC maintains that it did not terminate Mr. Finstad. It
contends that the record fails to show either an express
termination or a constructive discharge. It also contends
that the covenant of good faith and fair dealing should not
be applied to a refusal to accept a lateral transfer. The
contentions appear more fully in our factual review.
Mr. Finstad maintains that he was fired. Again we will
not summarize his contentions further as they appear at
length in the testimonial review.
Initially on direct examination, Mr. Finstad testified
as to his normal long work days and work years, showing that
he worked over 340 days in the calendar year 1980, and empha-
sizing his lack of vacation and the manner in which he was
continually on call. He also testified as to his development
of an external casing packer and other exploration techniques
which saved substantial monies for MPC. His testimony de-
scribed his competence and abilities at some length. We note
that MPC did not in any way attempt to contradict this evi-
dence. In fact the evidence submitted by MPC established
that the supervisors of Mr. Finstad also thought he was
extremely capable and well qualified and did their best to
encourage him to accept the transfer from Cut Bank to Butte.
Mr. Finstad testified that in May 1981, Mr. Percival
called from Butte and offered him the drilling manager job in
Butte. In response he said he was pleased with being offered
the drilling manager's job, which was a big promotion.
However Mr. Finstad told Mr. Percival that he was interested
in staying in Cut Bank for one more year so that his youngest
son could graduate from high school. That was acceptable to
Mr. Percival and nothing further was said about the drillinq
manager job .
Mr. Finstad next testified that he received a memorandum
from D.K. Percival. He testified that this was the only
written memorandum or document which suggested a move to
Butte. Following is Exhibit 1, the entire memorandum:
April 17, 1982
MEMORANDUM
TO : Ken Finstad
CC: Carl Anderson
Pete Madison
John Van Gelder
Bill Roberts
Neil Van de Kop
RE : Relocation of Companies ' Drilling
Supervisor
Effective July-1, 1982, supervision of all
companies' drilling activity -- -
--
- - --
will be locatedin the
Butte office. Carl Anderson has visited with you
- - subject - - requested - -you -
on the and has that - move to
Butte - assume your duties - - office. As
to from this
I have
usual. - - - - -not ~ a i dmuch attention - - title
to the
that -- -&job -- - -- ~ r i ~ t i o n
- goes with the - 1 but t v e s and
content initially will remain - -the - - as it
much - same
- - - ~ r e s e n ttime. Neil will remain in Cut
is at the
Bank to handle whatever part of the workload that
is appropriate from that location. We will work
out details of office space, communications, etc.
required to serve Neil in Cut Bank prior to July
1st.
You will report to the Chief Petroleum Engi-
neer or Manager-Petroleum Engineering, who will in
turn be reporting to Carl. We are now working to
fill that position and hope to ha.~rethat done by
July 1, 1982.
The reason for the re-location is the distinct
possibility that we will be pullinq out of S E
Alberta and that our future drilling, except for
post holes and production workovers, is likely to
be shifting away from northern Montana to various
other areas. As this happens, the unique reasor!
for maintaining your office in Cut Bank will have
ended.
I hope you will accept - -
-- this transfer. I know
it -
- will broaden your experience beyond- _- the-field
supervision level - - - - - - - -
that you have done well for many
--- - -
"pars- Should vou decide - - -
- - - - - - --
-. - -- - - not to make --
- - -
- the - move,
P----- he
lease let Carl know by June 1, 1982, - -
- .
so that -
-
can plan -
-- - accordingly.
s/ Don
D. K. Percival
DKP :bw (Emphasis supplied.)
Mr. Finstad testified that on April 14, 1982, prior to
his receipt of Exhibit I, Carl Anderson, his immediate supe-
rior, visited with him in the MPC office in Cut Bank. Mr.
Finstad pointed out that the visit was very brief and that
Carl had called and stopped by and visited about a possible
Butte move. There was no discussion of the drilling manag-
er's job.
Next Mr. Finstad testified that on May 3, 1982 he was
flying to Red Lodge and Dillon and stopped and talked to Mr.
Percival, then president of Entech, a non-utility part of
MPC, and with Mr. Anderson. He testified he spent approxi-
mately one hour with them and that both of them told him that
his job title and work were going to be exactly the same as
in Cut Bank. He explained that this meant he would be driv-
ing from Butte instead of Cut Rank, and that he wouldn't be
able to accomplish anything since he would be constantly
traveling from Butte to northern Montana and southeastern
Alberta. He pointed out that Carl Anderson told him that he
was going to expand his horizons and probably be traveling to
Louisiana and Texas. At trial he pointed out that he had
expected to be offered. the Drill-ing Manager iob when. he went
to Butte. He testified that if it had been offered to him,
he would have taken it even if it meant moving to Butte. Mr.
Finstad testified that at the end of that meeting, he made no
response to their suggestion of the move to Butte.
Plaintiff's Exhibit 1 specified that Mr. Finstad was to
let Mr. Anderson know by June 1, 1982, as to his decision on
the transfer. Mr. Finstad testified that on June 2, 1982,
Mr. Anderson met with him at Cut Bank. Mr. Finstad testified
that he had received no elaboration about the pull out from
southeast Alberta and northern Montana and that he had worked
for MPC for 22 years and knew that was the area from which
MPC was obtaining the gas. He told Mr. Anderson he didn't
believe that MPC would pull out. Mr. Finstad then testified
in more detail as to his thought that if he moved to Butte he
would be on the road from Butte to wherever they were drill-
ing and told Mr. Anderson he couldn't accomplish much while
behind the wheel of a car.
Because of the conflicting arguments made by the par-
ties, and in order that the testimony establishing various
critical elements is set forth, we will detail substantial
parts of the examination of Mr. Finstad. Because of the
length of the quotations, we will underscore portions of the
examination which appear particularly relevant. The direct
examination of Mr. Finstad in relation to the matter of
termination shows:
Q Do you recall Mr. Fleming [counsel for MPC]
telling this jury that you would not agree with the
decision of the Montana Power Company and chose not
to be employed by it anymore?
A Yes.
Q Tell this jury when you chose not to he
employed by the Power Company?
A I never d i d choose n o t t o b e w i t h Montana
Power.
Q You h e a r d M r . Fleming s t a t e t h a t no one
came i n t o t h e o f f i c e and s a i d , Y o u ' r e f i r e d .
A Yes.
Q What d i d happen?
A C a r l came i n t h a t morning a b o u t 9 : 0 0 and
s a t down and t o l d m e t h a t I would b e moving t o
Butte. Once a g a i n , h e t o l d me t h a t I would be
d o i n g t h e same t h i n g s I had b e e n d o i n g i n C u t Bank.
I t r i e d t o p o i n t o u t t o him t h a t I j u s t c o u l d n ' t
k e e p t h a t p a c e up. I had r e c e n t l y g o t t e n o u t o f
t h e h o s p i t a l and I was d e v o t i n g a l l o f m t i m e , a s
y
it was, t o Montana Power. And, I j u s t d i d n ' t t h i n k
it was g o i n g t o work and we t a l k e d f o r p e r h a p s a
h a l f a n h o u r and w e n e i t h e r were making any headway
and C a r l s a i d , W e l l , I need t o t a l k t o Don
Percival .
Q Did you s u g g e s t t h a t h e d o t h a t ?
A No.
Q Why d i d h e t e l l you h e needed t o t a l k t o
Don P e r c i v a l ?
A I d o n ' t r e a l l y know.
Q What were you t r y i n g t o t e l l him would
happen t o t h e Power Company i f t h e y moved you t o
Butte?
A I was j u s t s i m p l y t e l l i n g him i t w o u l d n ' t
be e f f i c i e n t . I d i d n ' t s e e how I c o u l d r u n t h a t
o p e r a t i o n o u t o f B u t t e and d r i v e t h e m i l e s t h e y
expected m e t o .
A He came t h r o u g h - - - - - i d , -
-- t h e d o o r and h e s a- Give
-
m e -e- e y s t o y o u r Company - - -e-a y s , -
- th k- c a r , and h s Turn
- y o u r c r e d i t c a r d s , - -e-a i d , - - c l e a n
in and h s You c a n
--r p e r s o n a l e f f e c t s from t h i s o f f i c e .
o u t you
Q - - - - - d i d you s a y ?
What
A - - a i d , - - t h e r e - e n ' t --
I s You mean a-
r any ---n a -
alter
t i v e s - -i s ?
to th
Q -
And, what d i d h e s a y ?
A And,
- - - i d , T h e r e - none.
he s a are 7--
Q Did you s a y a n y t h i n g e l s e ?
A I s a i d , you know, I s n ' t t h e r e any compas-
s i o n l e f t i n t h i s Company?
Q And, what d i d h e s a y ?
A He s a i d , W e l l , you know, when P e r c y puts
t h e k n i f e i n , h e l i k e s t o t w i s t it.
Q Then when C a r l Anderson came i n t o y o u r
o f f i c e , demanded y o u r c r e d i t c a r d s , y o u r key t o t h e
o f f i c e and y o u r c a r , and t o l d you t o c l e a r o u t of
t h e o f f i c e , what d i d t h a t mean t o you?
A Well, t h a t was t h e end o f m c a r e e r .
y
Q - t h a t-
Did mean --
-- you were f i r e d ?
--
Yes.
A --
Q Did you r e s i g n ?
-p
-
A No.
On the matter of moving and choices, Mr. Finstad further
t e s t i f i e d on d i r e c t :
what - you t h i n k would
Q The q u e s t i o n was, - - did
happen if you d i d n ' t - move - B u t t e - - -
to when C a r l sug-
g e s t e d -a t on J u n e 2nd, -
t h --- 1982?
- A I had assumed t h a t I would b e g i v e n
owwortuni& - - s o m e t h i n a - h e- - 1 v i n a
t o do
B u t t e , -- o t h e r j o b .
some
ot r tharmo
an
to
--
Q Were you e v e r t o l d by C a r l o r Don o r anyone
e l s e t h a t t h e r e was a problem between t h e Power
Company a n d you?
A No.
Q If someone had told you, any of these
people that told you, if you didn't move to Butte,
you would have been fired, what would you have
done?
A I would have gone to Butte.
Mr. Finstad testified with regard to his letter to Mr.
McElwain, Chairman of MPC. Following is that Plaintiff's
Exhibit 16:
June 21, 1982
Mr. J.A. McElwain
Chairman
The Montana Power Company
40 East Broadway
Butte, Montana, 59701
Dear Joe :
On June 2, 1982 in a meeting with Carl Ander-
son, my job as a Senior Petroleum Engineer was
terminated after 22 years with Montana Power. The
termination was the result of turning down a trans-
fer to the Butte office.
My reasons for turning down the transfer were
multifaceted and explained in detail to Anderson.
- - - -of the mgeting I asked Anderson if there
At the end -
were any options - -to me. - - - h t h e r e were
open - He t o l d
none, - - - I chose - - accept the transfer to
- and if not to
turn in mv -
A
car keys and vacate the office - -
at once.
took - - back to Butte that day.
Anderson - -my car-
I sincerely hope that no other 20 year employ-
ee will have to suffer the loss of their job in
this uncompromising manner.
For the loss of job and benefits I believe I
am due severance compensation commensurate with my
salary and years of employment.
Yours truly
(Emphasis supplied. ) s/ J.K. Finstad
On direct examination Mr. Finstad explained that he had used
the word "termination" in the letter because the toughest
word for him to use was "fired." Following is the reply from
Mr. McElwain to Mr. Finstad, Defendant's Exhibit 1:
June 28, 1982
Mr. Ken Finstad
111 - 9th Avenue, S.E.
Cut Bank, MT 5 9 4 2 7
Dear Ken:
I am in receipt of your letter of June 21 and
I am very disappointed that you have come to the
conclusion that you did not want to continue work-
ing for Montana Power Company as it meant a trans-
fer to the Butte office. We have valued your
services very greatly and, as you know, Carl Ander-
son has on two occasions tried to prevail upon you
to try to change your mind. I have reviewed the
statements made by you concerning Carl Anderson's
actions and find them not to be substantive to what
actually occurred. Your termination was totally
your choice because of your refusal to accept an
4
of - - - was no
assianment outside - c u t Bank when there - -
additional ---
need for your services there.
Your 2 2 years of service with Montana Power
Company makes you eligible for vested retirement
benefits from Montana Power. Because of that fact,
the provisions of our severance compensation policy
do not allow for consideration of severance termi-
nation pay.
My best wishes to you and your family. I
deeply regret your decision not to continue with
Montana Power Company in light of the
circumstances.
Very truly yours,
s/ Joe McElwain
JAM/pg
bcc. D.K. Peracival
Carl Anderson
In response to Mr. McElwain, Mr. Finstad further wrote an
additional letter, Pla.intiffVsExhibit 17:
July 6 , 1982
Mr. J.A. McElwain
Chairman
The Montana Power Company
40 East Broadway
Butte, Montana, 59701
Dear Joe:
I feel I must continue this dialog because you
say review of my statements were not substantive.
I will elaborate these statements. I pointed out
the Cut Bank office was in the mainstream of activ-
ity and it was this nuts & bolts hands on activity
that led to the development of an air driving
technique that added several billion cubic feet of
gas reserves in Northern Montana. The development
of 2 stimulation systems that is being used by most
operators in South East Alberta developing shallow
gas, this in addition to maintaining and developing
oil production. I also pointed out that the Cana-
dian Operations being placed back in the rate base,
Cut Bank is the logical base of operations provid-
ing efficiency and least cost to the rate payer in
Montana.
I questioned Percival's memo of April 27, 1982
where he states The reason of relocation is the
possibility of S.E. Alberta pull out.
Finally I detailed health problems and asked
Anderson how many people - - - terminated for
have been
not accepting a transfer, and asked was there no
compassion invoTved in light of the circumstances.
Anderson replied quote "You know Percival he likes
to put the knife in and twist it."
I am asking one months severance for each year
of employment and intend to, if necessary, pursue
this matter to the courts, Public Service Commis-
sion and media.
Yours truly,
s/ J.K. Finstad
(Emphasis supplied.)
Mr. Finstad testified that he talked to Mr. Anderson and
Jay Johnson, his supervisor, about doing consulting work with
MPC, and that he subsequently did consulting work on wells
for MPC.
There was extensive cross examination of Mr. Finstad by
the MPC counsel. With regard to the type of a job he did and
the attempt by MPC officials to convince Mr. Finstad to move
to Butte, he testified as follows:
Q Nobody, Mr. Anderson or Mr. Percival, ever
suggested to you that you weren't doinq a good job,
did they?
A No, sir.
Q That never came up, did it?
A No, sir.
Q Nobody ever suggested that they were firinq
you because you were doinq a terrible job?
A No.
Q And, in point of fact, nobody ever said they
were firing you, did they?
A When Carl Anderson came--
Q I'm asking you, did anyone use the word "fire"
to you?
A No, sir.
(2 And, at the time you met with Mr. Carl Ander-
son on June 2nd, 1982, did he criticize your job?
A No.
Q Isn't it correct that Mr. Anderson tried to
convince you to move to Butte on June 2nd, 1982?
A Yes, he did.
Q And, you refused?
A Yes, I did.
Q Now, on June 2nd, 1982, y0.u had been told that
the office in Cut Bank, Montana was closing; is
that correct?
A Yes.
Q - - ---
Was the office -
closed?
-
A Yes, it was.
- --
Q - that was
And, - - after -
June - 1982?
- 2nd,
A Yes.
-
Q - -- -
Has that office -
- ever reopened?
-
A No.
Q In point of fact, they are, to this day,
supervising drilling from Butte, Montana?
A I assume so, yes.
Q And, have been doing so since June 2nd, 1982?
A I assume so, yes.
Because of the significance of Plaintiff's Exhibit 1,
the memo from Mr. Percival, we will detail the cross examina-
tion of Mr. Finstad on that exhibit:
Q Now, let's go though this line-by-line.
"Effective July 1, 1982, supervision of all compa-
nies' drilling activity will be located in the
Butte office. " Did you read that?
A Yes.
Q Now, that says that effective July 1, 1982,
all drilling activity will be located in the Butte
office, is that correct?
A Yes.
Q Since July 1, has it been located in the Butte
office?
A I assume it has, yes.
Q You know it has, don't you?
A Yes.
Q "Carl Anderson has visited with you on the
subject and has requested that you move to Butte to
assume your duties from this office." Is that a
correct reading of that?
A Yes.
Q And, Mr. Anderson had, in fact, visited with
you, hadn't he?
A Yes.
Q "As usual, I have not paid much attention to
the title that goes with the job, but the job
description and content initially will remain much
the same as it is at the present time. " Is that
correct?
A Yes.
Q And, you understood that?
A Yes.
Q And, you read that?
A Yes.
Q "Neil will remain in Cut Bank to handle what-
ever part of the workload that is appropriate from
that location."
A Yes.
Q Mr. Neil Van de Kop this is referring to, is
that correct?
A Yes.
Q In fact, he did stay here and handle the
workload?
A I assume he did.
Q "We will work out details of office space,
communications, etc, required to serve Neil in Cut
Bank prior to July 1st." To your knowledge, were
communications and office space worked out for Mr.
Van de Kop?
A I would assume they did.
Q "You will report to the Chief Petroleum Engi-
neer or Manager--Petroleum Engineering, who will in
turn be reporting to Carl." Any reason to doubt
any portion of that?
A No.
Q "We are now working to fill that position and
hope to have that done by July 1, 1982." Did you
know what they were doing in that respect?
A No.
Q And, that position was Manager of Petroleum
Engineerinq?
A Yes.
Q "The reason for the relocation is the distinct
possibility that we will be pulling out of south-
east Alberta," I sav southeast because it's SE
Alberta, "and that ourLfuture drilling1'--and,let's
stop after southeast Alberta. On April 27th, 1982,
did you have any knowledge what Montana Power
Company's plans were with respect to southeast
Alberta?
A The only plans that I was aware of were the
current drilling plans which we were operating
under at that time.
Q - you e v e r p a r t i c i p a t e d - - -f-h- d i s -
Had i n any o t e
cussions about planning, long range planning?
A Not d i r e c t l y , -.
no
Q I n your c a p a c i t y o u t h e r e a s a Senior Engineer
located in Cut Bank in charge of
s u p e r v i s i o n - - d r i l l i n g s u p e r v i s i o n , you d i d n ' t p l a y
any r o l e i n t h a t , d i d you?
A No, s i r .
Q S o , you d i d n ' t know what t h e p l a n s were?
A Right.
Q Now, t o t h e n e x t p a r a g r a p h , " I hope you w i l l
accept t h i s transfer." T h a t ' s what i t s a y s ?
A Right.
Q Do you know what M r . P e r c i v a l hoped, d o you
h a v e a n y p e r s o n a l knowledge what M r . P e r c i v a l , t h e
a u t h o r o f t h i s memo, hoped?
A Nothinq p a s t t h a t h e hoped. I would a c c e p t t h e
transfer.
Q Did M r . P e r c i v a l e x p r e s s t h a t t o you and t r y
t o t a l k you i n t o a c c e p t i n g t h e t r a n s f e r ?
A Yes.
Q That's t r u e , too?
A Yes.
Q Every i n d i c a t i o n i s h e hoped you would a c c e p t
the transfer?
A Yes.
Q " I know i t w i l l b r o a d e n y o u r e x p e r i e n c e beyond
t h e f i e l d s u p e r v i s i o n l e v e l t h a t you h a v e d o n e w e l l
f o r many y e a r s . " Would you g e t d i f f e r e n t e x p e r i -
e n c e i f you w e r e l o c a t e d i n B u t t e ?
A Not according to the plan they explained to
me.
Q Let's talk about when you received this.
We'll get on with this. If you would move to Rutte
and supervise from Butte, you would have been
available to participate in various functions, a
wider gambit than what you were doing here?
A I don't know that.
Q --
"Should you decide - to make the move,
not
let Carl know by June
please - - - - p- - t ha t e
so- -
can plan - -
-- accordingly."
-
A Yes.
c1 - you, - - contact - Anderson - -
Did .- in fact, Mr. on June
- 1982?
1, -
-
A No. I didn't.
- - ---
Why not?
--
A - don't remember.
I
Q That was the only request that there was in
this memo for you to do, is that correct, other
than to relocate in Butte?
A Yes.
Q And, you didn't do either?
A No.
Q - - there any reason--and, I think - -
Now, was I have
this and I want 7
make sure I get
discussed - - - - to - - - - your
answer, was there any reason you didn't comply with
Mr. Percival's request - contact him & - - 1,
- to June
1982?
- -
A - may -have just slipped - -
It my mind.
Q Did you hope - -
it would - away?
go
A No.
-
Q Did you write any memos or take any action to
deal with this if this was a lie?
A No, I didn't.
***
Q When you got this memo, did you make any
decision with respect to this memo?
A The decision I guess I made was that I was
going to wait and talk to Carl and hope that some-
thing else might be available to me. In fact, from
the letter wherein it says just let him know. I
didn't have any idea I was going to be fired.
Q And, I know you have said that and I appreci-
ate that, go ahead and say it if you want, but you
indicated to me you hoped Carl would do that?
A Well, I had hoped I would be offered some -
alternative t - - t-h i s and I assumed -
-o- - ~-would -
be.
Q - you - -Carl Anderson - - say, I want
Did call - and
somethina else?
A No.
- L didn't.
Q Let's go back to this. When you got this, did
you decide then you weren't going to relocate to
Butte?
A I don't know.
Q From the main language, Mr. Finstad, and
you're an intelligent man, from the main language
of this, what's the alternative to not accepting
the transfer?
A I didn't know there were no alternatives.
Q I'm asking you and trying to get your state of
mind why you thought there were alternatives? What
are the alternatives to, "I hope you will accept
t.his transfer."
A I h a d n ' t known o f anybody e v e r g e t t i n g f i r e d
f o r n o t taking it.
Q What a l t e r n a t i v e s - - t h i n k you - -a v a i l -
d o y0.u had
a b l e from t h i s memo, - e i t h e r C tt h e t r a n s f e r
---- to a c c e ~ --
is th
- - --h e t r a n s f e r ; - -a t c o r r e c t ?
o r deny t
A Yes.
-
0 - is - p r e t t y clear?
- is
Th
A Yes.
-
Q And, you ----- f u s e d - t a k e -- h e - r a n s f e r ?
-- re to t t
A Yes.
-
Q Now, M r . F i n s t a d , have you e v e r r e p r e s e n t e d t o
-
t h e Montana Power Company you w e r e w i. l l i n g t o
r e l o c a t e d from C u t Bank. Montana: d o - -r you e v e
r e c a l l r e p r e s e n t i 3 - -e Montana. power Company,
t o th
- any f a s h i o n , t h a t you were w i l l i n g t o r e l o c a t e
in
- some o t h e r p l a c e - t h e r - - - a n Montana?
to - o
- t h a n Cut ~ - 5
A No.
-
With r e g a r d t o w h e t h e r o r n o t M r . F i n s t a d should have been
a l l o w e d t o s t a y i n C u t Bank, h e f u r t h e r t e s t i f i e d on c r o s s
examination:
Q Now, from t h e t i m e you went t o work i n Cut
Bank, Montana, u n t i l J u n e 2nd, 1982, had anybody i n
t h e Montana Power Company h i e r a r c h y , and I ' m t a l k -
i n g a b o u t h i e r a r c h y , J a y J o h n s o n , y o u r immediate
s u p e r v i s o r , r i g h t u p t o J o e McElwain, C h i e f Execu-
t i v e O f f i c e r o f t h e Montana Power Company, - did
anyone e v e r t e l l you you would - - b l e --o r e t i r e --n
be a - t i
C u t Bank, Montana?
--
A No.
Q No p r o m i s e s t o t h a t e f f e c t w e r e made?
A No.
Q No r e p r e s e n t a t i o n s t o t h a t e f f e c t were made?
A No.
Mr. Finstad's complaint alleged that MPC falsely in-
formed him that they were eliminating his job assignment and
position at Cut Bank for the reason that MPC was eliminating
future drilling in southeast Alberta. As appears from the
above factual quotations, MPC in fact did eliminate Mr.
Finstad's job and position in Cut Bank, and completed all of
the work from Butte. In addition, the uncontradicted evi-
dence established that while not known to Mr. Finstad, MPC
had negotiated for some time for the sale of all of its
Canadian oil and gas properties and had negotiated a sale
with all details agreed upon. However, that sale was not
consummated because the proposed buyer backed out of the
transaction at the last minute when the parties came together
in New York City to execute the appropriate papers. The
uncontradicted facts therefore establish that these particu-
lar reasons as stated in the plaintiff's complaint were not
false as he alleged.
It is essential that we first focus on the conclusions
which can be drawn from the uncontested facts. Following is
a summary of significant facts based upon the uncontradicted
evidence in the record:
1. That Mr. Finstad was an excellent employee with more
than 22 years experience with MPC.
2. That MPC had chosen to close the Cut Bank office
where Mr. Finstad had worked for many years and to transfer
those functions to Butte.
3. That MPC did close the Cut Rank office and has
continued to function without a person in Mr. Finstad's
capacity in Cut Bank. The functions formerly performed by
Mr. Finstad have been handled out of Butte.
4. That Mr. Finstad was offered a transfer from Cut
Rank to Butte with the same job description and compensation.
5. That the transfer was first discussed with him bv
Mr. Anderson on April 14, 1982. Subsequently, by memorandum
dated April 17, 1982, Mr. Percival clearly explained the
transfer and concluded with the statement that he hoped Mr.
Finstad would accept the transfer, that it would broaden his
experience beyond the field supervision level and that
"should you decide not to make the move, please let Carl
[Anderson] know by June 1, 1982, so that he can plan accord-
ingly." No response was made by Mr. Finstad by June 1, 1982.
6. That on June 2, 1982, Mr. Anderson met with Mr.
Finstad and discussed the matter in some detail. Mr. Finstad
understood that both Mr. Anderson and Mr. Percival desired
that he accept the transfer.
7. That Mr. Finstad refused to take the transfer on
June 2, 1982.
A key factual conclusion is that Mr. Finstad chose not
to accept the transfer from Cut Bank to Butte. That is not
in dispute. Notwithstanding his refusal to accept the trans-
fer, Mr. Finstad contends that he was actually discharqed.
There are three basic contentions:
1. Mr. Finstad testified that if he had known there was
no option other than accepting the transfer, he would have
gone to Butte. In itself that is not substantive testimony.
The record establishes that Mr. Finstad concluded that he was
through when he was asked to turn in his keys and vacate the
office. At that point Mr. Finstad had a clear choice. He
could turn in his keys and vacate the office as he did. His
alternative was to advise Mr. Anderson that he would accept
the transfer to Butte if it meant that he was going to lose
his job. There is a total absence of any indication on the
part of Mr. Finstad that he w8s willing to do that. It would
h a v e b e e n a s i m p l e m a t t e r f o r him t o h a v e i n d i c a t e d t h a t i f
i t meant a l o s s o f h i s j o b , h e would o f course accept t h e
transfer. Mr. Finstad f a i l e d t o do t h a t . This leads t o a
key factual conclusion: it was M r . F i n s t a d who made the
d e c i s i o n t o t e r m i n a t e h i s employment w i t h MPC. A l l MC did
P
was h o n o r h i s d e c i s i o n .
Mr. Finstad's testimony establishes that he was in
t e l e p h o n e and p e r s o n a l c o n t a c t w i t h v a r i o u s o f f i c i a l s o f M C
P
during the days and weeks following June 2, 1982. These
a f f o r d e d c o n t i n u i n g o p p o r t u n i t i e s f o r him t o t e l l M C t h a t he
P
had changed h i s mind and would a c c e p t t h e t r a n s f e r t o B u t t e .
There i s a t o t a l absence o f evidence of s u c h a c t i o n by M r .
Finstad. W e conclude t h a t a l l of t h e evidence i n t h e record,
including the testimony on t h e p a r t o f Mr. Finstad, shows
t h a t MC
P in f a c t d i d n o t d i s c h a r g e him. W e conclude t h a t
s t a r t i n g June 2, 1982, and c o n t i n u i n g f o r many d a y s t h e r e a f -
t e r , M r . F i n s t a d had o p p o r t u n i t i e s t o a c c e p t t h e t r a n s f e r and
chose n o t t o do s o . T h i s l e a d s u s t o a n o t h e r key c o n c l u s i o n :
the separation of M r . F i n s t a d from M C was t h e r e s u l t o f h i s
P
r e f u s a l t o a c c e p t t h e t r a n s f e r from C u t Bank t o B u t t e .
2. Mr. F i n s t a d p o i n t s o u t t h a t a f t e r 22 p l u s y e a r s of
employment, h e t h o u g h t some o t h e r o p t i o n o r c h o i c e would be
o f f e r e d t o him. The r e c o r d e s t a b l i s h e s t h a t t h e M C handbook
P
a d v i s e d a l l employees o f the p o s s i b i l i t y of transfer. Mr.
Finstad's testimony established that h e was aware o f many
t r a n s f e r s i n t h e company. From o u r e x a m i n a t i o n o f t h e r e c o r d
w e conclude t h a t t h e r e c o r d does n o t c o n t a i n any evidence
s u f f i c i e n t t o e s t a b l i s h t h a t MPC was o b l i g a t e d t o o f f e r some
other choice o r option t o M r . Finstad.
3. Mr. F i n s t a d a r g u e s t h a t when M r . Anderson a s k e d him
t o t u r n o v e r h i s k e y s and v a c a t e h i s o f f i c e on J u n e 2 , 1982,
t h a t c o n s t i t u t e d an a c t u a l discharge. A s previously stated,
Mr. Finstad refused to transfer with full knowledge that
there were no other options available to him. He terminated
his own employment.
As further discussed in Part I1 of this opinion, in
Frigon v. Morrision-Maierle, Inc. (Mont. 1988), 760 P.2d 57,
45 St.Rep. 1344, this Court pointed out that all of its
decisions involving a covenant of good faith and fair dealing
have been limited to instances of express employee termina-
tion or constructive discharge. In the present case, with
the exception of the termination which occurred after Mr.
Finstad's refusal to accept the lateral transfer which is
discussed in detail in Part 11, we conclude that the record
does not contain facts establishing an express discharge or
actual discharge.
Next we discuss whether Mr. Finstad was constructively
discharged. This issue is more easily resolved. The basic
question is whether the record establishes that by action or
inaction, MPC has rendered the working conditions for Mr.
Finstad so oppressive that resignation was his only reason-
able alternative. See Niles v. Big Sky Eyewear (Mont. 1989),
771 P.2d 114, 118, 46 St.Rep. 504, 508. We note that a
determination of constructive discharge must be supported by
more than "an employee's subjective judgment that working
conditions are intolerable." Snell v. Montana-Dakota Utili-
ties Co. (1982), 198 Mont. 56, 65, 643 P.2d 841, 846. As
described above, Mr. Finstad did testify that he thought it
would be very difficult for him to perform his functions out
of the Butte office. The record demonstrates that he argued
over this point with his superiors, Mr. Anderson and Mr.
Percival. From our careful review of the record, including
this evidence, we conclude that Mr. Finstad failed to present
any substantial evidence to demonstrate a constructive
discharge.
We hold that the record does not contain substantial
credible evidence to support a conclusion that Mr. Finstad
was either actually or constructively discharged.
Does the implied covenant of good faith and fair dealing
apply to termination following an employer's offer of a
transfer of employment without change in compensation or
other benefits where the employee refused the transfer?
In Frigon, Ms. Frigon contended that even though she had
voluntarily resigned, she could raise the covenant of good
faith and fair dealing as a tort separate from wrongful
discharge and allow the Court to consider whether there had
been a breach by the employer's refusal to give her perfor-
mance and salary reviews and denying her a merit raise. In
response to that contention, this Court held:
All of the decisions of this Court involving a
covenant of good faith and fair dealing have been
limited to instances of express employee termina-
tion 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 reauire a
public policy violation. Dare, 687 ~: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 applica-
ble only in cases of employee termination.
Frigon, 760 P.2d at 60. The Court concluded that Ms. Frigon
had not been expressly terminated and had failed to establish
facts to establish constructive discharge. The Court there-
fore affirmed the decision of the District Court in granting
summary judgment to the employer defendant.
MPC argues that because Mr. Finstad's refusal to tranfer
did not constitute either an express or constructive dis-
charge, the covenant of good faith and fair dealing should
not be applied. MPC argues that to apply the covenant to a
transfer situation would make the courts a silent partner in
the employment relationship. All transfers would become
subject to review by the Court with potentially disastrous
results for businesses.
Mr. Finstad argues that this case is not a transfer case
because he concluded that he had been fired and therefore had
received either an express or constructive discharqe. That
argument is disposed of by the preceding issue.
The key question is whether or not the refusal of Mr.
Finstad to accept the transfer and the resulting termination
of Mr. Finstad's employment by the taking of his keys, having
him move out of his office, and terminating his salary, can
be classed as an actual discharge for the purposes of invok-
ing the covenant of good faith and fair dealing. We recog-
nize that the termination resulting from the refusal to
accept the transfer could be classed as a discharge, depend-
ing upon whether emphasis is given to the "quitting" by Mr.
Finstad, or the actions of MPC in requesting that Mr. Finstad
return his car and vacate the office. However, we conclude
that a termination following the refusal to accept a lateral
transfer does - constitute an actual discharge for purposes
not
of invoking the covenant of good faith and fair dealing.
It is important that we recognize that the covenant of
good faith and fair dealing was not intended to apply to all
discharges in every type of employment. Our initial deci-
sions in this area involved employment termination in which
the covenant was invoked to protect the "at will" employee
from an unfounded or biased discharge. However, for example,
the discharge of an employee covered by a collective
bargaining agreement would not invoke the covenant. There
may be other contractual relationships with a similar result.
In this case we conclude that a boundary should be
established beyond which the covenant of good faith and fair
dealing should not be applied. We conclude that it is not
appropriate that the courts become involved in all
employer-employee transactions such as transfers, promotions
and demotions. We have previously emphasized that employers
must have wide latitude and liberty in making business deci-
sions. It is not the function of the courts to become the
arbiter of all relationship decisions between employers and
employees. We conclude that it is not appropriate to apply
the covenant of good faith and fair dealing to the lateral
transfer of an employee.
In accordance with Frigon we hold that the covenant of
good faith and fair dealing may not be applied in the present
case because of the failure of Mr. Finstad to prove an actual
or constructive discharge. We hold that the covenant of good
faith and fair dealing does not apply to a termination fol-
lowing the refusal of an employee to accept a lateral trans-
fer of employment.
I11
As previously mentioned, the first question posed to the
jury in the special verdict form was whether or not there had
been a violation of the covenant of good faith and fair
dealing. We suggest that in employment discharge and termi-
nation cases, if a special verdict form is used of the type
herein set forth, it is essential that the jury be required
to determine whether there was either an actual discharge or
a constructive discharge. Those questions should be answered
prior to any consideration of the covenant of qood faith and
fair dealing.
W r e v e r s e t h e judgment o f t h e D i s t r i c t Court and d i r e c t
e
t h e e n t r y o f judgment f o r t h e d e f e n d a n t .
W Concur:
e
4 k-
Chief J u s t i c e
Justices
Justice John C. Sheehy, dissenting:
Nothing is more clearly established in Montana law, that
when a trial is by fury, all questions of fact are to be
decided by the jury, and all evidence thereon is addressed to
them, S 25-7-103, MCA; 5 26-1-202, MCA; and that the jury is
the judge of the effect and value of evidence addressed to
it, 5 26-1-203, MCA. Our State Constitution declares the
right of trial by jury is secured to all and shall remain
inviolate, Art. 11, Sec. 26, 1972, Montana Constitution.
Rule 38(a) Montana Rules of Civil Procedure is a declaration
that the right of trial by jury shall be preserved to parties
inviolate, in the application of the rules.
In reversing this hard-earned verdict, obtained by a
faithful employee against the defendant company from a
properly constituted jury, no error can be found by the
majority, such as an incorrect instruction of law or an
improper ruling of law made by the ~ i s t r i c tCourt. Rather,
the majority assume seats in the now vacated jury box, and
proceed to reverse the earlier jury on the facts.
The reversal is hinged on the majority's conclusion of
fact which directly opposes the jury's conclusions:
A key factual conclusion is that Mr. ins tad chose
not to accept the transfer from Cut Bank to Butte.
That is not in dispute. ~otwithstanding his
refusal to accept the transfer, Mr. ins tad
contends he was actually discharged. (Slip opinion
at 23.)
Whether Mr. E'instad refused to go to Butte was very much
in dispute. The jury in this case decided that Mr. inst tad
did not refuse a transfer from Cut Bank to Butte. On
disputed testimony, the jury found that the actions of Carl
Anderson on June 2, 1982 constituted an actual discharge. At
the least it constituted constructive discharge.
The test of whether an employee quit or was discharged
is whether the employer's statements or actions at the time
would reasonably lead the employee to believe that he had
been terminated and that a formal discharge notice is
unnecessary. 48 Am.Jur.2d 750, Labor, S 922.
The test of whether an employee is constructively
discharged depends upon reasonable inferences that the
employee co-uld draw from the language used. NLRB v.
Downslope Industries, Inc. (1982, CA 6), 676 F.2d 1114.
Whether Mr. Finstad quit or was terminated was a matter
of hot dispute during the trial. The jury chose to believe
Mr. inst tad. He testified as to the meeting of June 2, 1982
as follows:
Q id you have any disc.ussion with Carl Anderson
concerning your productivity while you were driving
from Butte to Cut Bank?
A I told Carl I couldn't accomplish much while I
was behind the wheel of a car.
Q And, is that a fact?
A That's a fact.
Q Do you recall Mr. Fleming telling this jury that
you would not agree with the decision of the
Montana Power Company and chose not to he employed
by it anymore?
A Yes.
Q Tell this jury when you chose not to be employed
by the Power Company?
A I never did choose not to be with Montana Power.
Q You heard Mr. ~ l e m i n g state that no one came
into the office and said, You're fired.
A Yes.
Q What did happen?
A Carl came in that morning about 9 : 0 0 and sat
down and told me that I would be moving to Butte.
Once again, he told me that I would be doing the
same things I had been doing in Cut Bank. I tried
to point out to him that I just couldn't keep that
pace up. I had recently gotten out of the hospital
and I was devoting all of my time, as it was, to
Montana Power. And, I just didn't think it was
going to work and we talked for perhaps a half an
hour and we neither were making any headway and
Carl said, Well, I need to talk to Don Percival.
[~ercival was Carl Anderson's superior.]
Q Did you suggest that he do that?
A Eo
T.
Q Why did he tell you he needed to talk to Don
Percival?
A I don't really know.
Q What were you trying to tell him would happen to
the Power Company if they moved you to Butte?
A I was just simply telling him it wouldn't be
efficient. I didn't see how I could run that
operation out of Butte and drive the miles they
expected me to.
Q In addition to what you were already doing?
A Right.
Q Then what happened?
Q I offered Carl the use of our local microwave
telephone which is a direct hook-up to Montana
Power's offices, and he said, No, it's a private
call. And, I said, I could leave the room. And,
he said, No. this is a private call.
Q Did he leave then?
A Yes.
Q And, how long was he gone?
A About 15 minutes.
Q And, when he came back, what happened?
A He came through the door and he said, Give me
the keys to your company car, and he says, Turn in
your credit cards, and he said, You can clean out
your personal effects from this office.
Q What did you say?
A I said, You mean there aren't any alternatives
to this?
Q And, what did he say?
Q And, he said, There are none.
Q Did you say anything else?
A I said, you know, Isn't there any compassion
left in this Company?
Q And, what did he say?
A He said, Well, you know, when Percy puts the
knife in, he likes to twist it.
Q Then when Carl Anderson came into your office,
demanded your credit cards, your key to the office
and your car, and told you to clear out of the
office, what did that mean to you?
A Well, that was the end of my career.
Q Did that mean you were fired?
A Yes.
Q id y0.u resign?
A No.
Q Did the thought of resigning ever occur to you?
A Never.
The testimony of Carl Anderson, which the jury chose not
to believe, is in substantial conflict with Mr. inst tad as to
what happened at the meeting of June 2, 1982:
Q. That brings us to on or about June 2, 1982,
which this jury has heard an awful lot about. What
took place on June 2, 1982 between yourself and Mr.
Finstad. If you recall?
A I had come to Cut Bank the night before and went
to the office fairly early, 9:00 or thereabouts and
told Ken the time has come and we are making a
decision and this is the day we are doing it. We
just can't drag it out any longer. He probably
went through the same sort of things, the reasons
he didn't want to come to Butte and my reasons why
I wanted him to come, and it finally culminated in
Ken and we just couldn't get to the point, this was
it, so I said to Ken, If you are not going to move
to Butte, Ken, you may as well give me your car
keys and forget about it. Prior to that he said,
Well--now, I recall, Well, Carl, I am not going to
move to Butte, so let me just clean up the odds n
ends we have got going in Cut Bank and I'll stay
here until the end of the month and close the
office for you. And, I said, Ken, it isn't going
to be any easier at the end of the month than
today. And if you are not going to come to Butte,
you might as well give the keys to me.
There is clearly a conflict in the testimony between the
two principal protagonists as to whether Mr. Finstad refused
a transfer to B-utte. Mr. Finstad said he never ref.used,
while Carl Anderson said he did. The jury resolved that
issue of fact. Yet the majority states that Mr. inst tad
chose not to accept the transfer from Butte and "that is not
in dispute.'' It was the principal dispute of the trial.
The jury also relied on further evidence that Mr.
Finstad was in fact willing to transfer from Butte, because
he called a superior, Jay Johnson on the same day who told
Finstad he would try to get him a job; he called Bob Rhodes
and Bill Roberts, who are also supervisors, whom Mr. f ins tad
asked if they could give him any kind of help in getting his
job back. Mr. Finstad further testified:
Q Did you tell any of these people after June 2,
1982, when you were trying to get a job with the
Power Company, any of them, Jay Johnson, Robert
Rhodes, Bill Roberts, Carl Anderson, Joel ~ c ~ l w a i n ,
any of them, that you would not move to Rutte?
A No.
Q Did you in any way limit the location of your
residence if you were permitted to return to work
for the Power Company?
A No I didn't.
Finstad also testified that he was willing to reside
wherever the Power Company would have asked him to reside
without any exceptions.
In other testimony, Percival and Anderson testified that
they never discussed with Mr. Finstad the extra travel he
would have to undertake to perform his job in Northern
Montana if he transferred to Butte; that one of the reasons
he wo.uld not transfer was because of the health of his wife.
Mr. Finstad refuted this testimony through his own evidence
about the amount of travel, and the fact that the Power
Company would continue to drill extensively in Northern
Montana; that the s-upervision of an engineer was necessary
for that continued drilling; and he produced his wife and
their son each of whom testified that there was no objection
on the part of the family to move into Butte for any reason.
In fact Don Percival, the ultimate decision-maker, testified
that Mr. Finstad never at any time told him that he would not
move to Butte.
There are approximately 700 pages of testimony in this
case not counting portions of transcript devoted to the
settlement instructions and other matters. The majority have
selectively used portions of the testimony to assert that
there was no issue in this case of actual discharge or
constructive discharge and the majority apparently contend
that the jury had no substantial basis upon on which to
render its verdict. The record is clear that there was
indeed substantial evidence supporting the jury verdict and
it should be maintained.
The further portion of the majority opinion respecting a
breach of the implied covenant in cases involving lateral
transfers or proposed lateral transfers is a gratuitous
action by this Court not necessary to the decision and is
therefore mere dicta. It would however be dangerous dicta if
in the future it would be applied as a means for an employer
to avoid liability for constructive discharge by a pretended
lateral transfer.
I would sustain the jury verdict.
Q A 4.
i
Justlce
I join i n t h e d i s s e n t of J u s t i c e J o h n C. Zheehy.