No. 93-646
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
RONALD C . KOEPPLIN,
Plaintiff and Appellant,
ZORTMAN MINING, I W C - ,
a Montana Corporation,
Defendant and Respondent.
APPEAL FROM: District Court of the S e v e n t e e n t h Judicial ~ i s t r i c t ,
In and f o r the County of Phillips,
The Honorable Leonard H. Langen, Judge p r e s i d i n g .
COUNSEL OF RECORD:
For Appellant:
Jerrold L. Nye, Nye & Meyer, B i l l i n g s , Montana
F o r Respondent:
Steven J. Lehman, Crowley, Haughey, Hanson, T o o l e &
Dietrich, Billings, Montana; Thomas E. Hattersley,
111, Gough, Shanahan, J o h n s o n & Waterman, H e l e n a ,
Montana
Submitted on Briefs: May 26, 1994
Decided: September 1 5 , 1 9 9 4
Justice Fred J. Weber delivered the Opinion of the Court.
Plaintiff Ronald C. Koepplin appeals the Memorandum Opinion
and Order of the District Court of the Seventeenth Judicial
~istrict, hilli ips County, which granted defendant's motion for
summary judgment. We affirm.
The sole issue for review is whether the District Court erred
in granting summary judgment in favor of the defendant on
Koepplin's claims for wrongful discharge, invasion of privacy and
malice.
Ronald C. Koepplin (Koepplin) worked for Zortman Mining, Inc.
(Zortman) from October 1991 until his termination on February 17,
1993, when Zortman discharged Koepplin from his job as a haul truck
driver. Koepplin had worked at the Zortman mine in other
capacities dating back to 1986 when the mine was under other
ownership.
Frank Green (Green) supervised Koepplin. In January of 1993,
Green noticed there was tension and discord among crew members.
Upon inquiry of crew members, Green was told that Koepplin had been
verbally deriding and "downgrading" co-employees, intimidating them
and throwing items on the lunch bus. On February 14, 1993, a
female crew member reported to Green that she had experienced
numerous incidents of egregious sexual harassment from Koepplin.
Green transcribed the employee's oral statement onto an Employer
Personal File Entry form on February 14, 1993 and called Mine
Superintendent Clayton Krall (Krall) because of the seriousness of
the complaint.
2
On February 15, 1993, Zortman management employees Green,
Krall, George Lytle (Lytle), and Jim Geyer (Geyer) began to
investigate the complaints against Koepplin. Their investigation
included interviews with persons who had witnessed Koepplin's
treatment of the female employee. These interviews indicated that
there were more problems with Koepplin's conduct that the sexual
harassment incidents.
As a result of the interviews, Koepplin was called into
Lytlels office later that day to meet with Geyer, Krall and 1,ytle
so that he could tell his side of the story involving the female
employee and also his side of an incident involving a scuffle with
another male employee. Koepplin denied the sexual harassment and
termed the scuffle "calisthenics." Krall advised Koepplin in
detail regarding the complaint from the female employee; Koepplin
denied the sexual harassment. At the conclusion of the meeting,
Koepplin was suspended pending further investigation of the
complaint and was asked to return the morning of February 17, 1993
for another meeting with management. Koepplin was told
specifically not to threaten or intimidate anyone involved in the
investigation.
Despite being told not to threaten or intimidate
investigators, Koepplin made telephone calls to his supervisor
(Green) and the three other mine managers (Krall, Lytle and Geyer)
after 10:OO p.m. that same evening. Krall, Lytle and Geyer all
testified they felt threatened by Koepplin's calls to them. Geyer
testified that from the tone of voice and the words used, he felt
threatened and believed that Koepplin was trying to intimidate him.
Geyer immediately reported the threat to the Phillips County
Sheriff.
The next day, after discovering Koepplin had similarly called
other mine managers, Geyer provided the sheriff with information
about these calls also. Geyer specifically reported Koepplin's
intent to take Lytle on a "trip to hell." Koepplin testified in
his deposition as follows:
[By Mr. Hattersley] . . .
As you left the meeting from
George's office, when George, Jim, Clayton and you were there.
You know what meeting I'm talking about, right, when they told
you you were suspended. You know what meeting I'm talking
about.
A. Yes, sir.
Q. You were also told that you were not to threaten or
intimidate anyone involved in the investigation; isn't that
right?
Yes, sir.
Clearly told that, right?
Yes, sir.
Who told you that?
Jim Geyer.
Then you called George Lytle, didn't you?
Yes, sir.
And you said to George, "Do you have a suitcase?"
I asked him.
You asked him if he had a suitcase?
Yes, sir.
Why did you ask if he had a suitcase? What was your
purpose in asking that?
Because he was going to need it.
Why did you think he was going to need it? Did you tell
him he was going to need it?
I asked him.
You asked him if he had a suitcase?
Yes, sir
And you said the reason you asked is because you felt he
was going to need it, right?
Best get 'er packed.
And that's what you said to him, right?
Yes, sir.
Why in your mind did you think that he needed a suitcase?
Because I do believe George Lytle is a lot of my problems
here in this situation.
But why would he need a suitcase if he's part of your
problem in your view?
At one time earlier, I called George Lytle a court
jester.
But why did you think he was going to need a suitcase
packed and why did you tell him that? In your mind, why
did you tell him those things?
Because he's going to need it.
Why was he going to need it from your standpoint?
For his little trip.
What was his little trip going to be?
To hell
And that's what you told him, right?
Yes, sir.
Lytle, Krall and Geyer all felt that Koepplin's calls to them
were threatening and intimidating and all hung up on Koepplin.
Koepplin testified he called the managers because he was concerned
about his job and that he was not angry nor did he intend to
threaten or intimidate anyone. Koepplin had also acted in a
threatening and excitable manner during the meeting the previous
day, according to testimony by management employees. The
investigation conducted by mine management elicited information
from other employees that they, too, were concerned with their
safety and the safety of others because of Koepplin's threats.
Zortman's personnel policy provided for different "levels" of
discipline, including termination if warranted by the serious
nature of the circumstances involved. Because of Koepplints most
recent threats to management and his prior behavior as reported by
co-employees and as noted in his personnel file, Zortman managers
decided to terminate Koepplin's employment at the prearranged
meeting on February 17, 1993.
Sheriff Eugene Peigneux was asked to be present at the meeting
in order to keep the peace should Koepplin become violent. Sheriff
Peigneux testified that he decided to frisk Koepplin when he
arrived for the meeting. He further testified that this was his
own independent decision based on his professional training and
experience and that Zortman had not requested this be done.
Koepplin testified that his feelings were not hurt by this conduct
and that after he was frisked, he got a cup of coffee and asked the
sheriff and the two deputies if they cared for a cup also. Sheriff
Pcigneux also decided to have one of his deputies patrol the
Zortman area during his regular shift for the next few days in
order to keep an eye on Koepplin.
After his termination, Koepplin brought this action for
wrongful discharge, invasion of privacy and malice. Further facts
are provided throughout this opinion.
Did the District Court err in granting summary judgment in
favor of the defendant on Xoepplinas claims for wrongful discharge,
invasion of privacy and malice?
Our standard of review for an appeal of a district court's
summary judgment decision is the same as that used by the district
court under Rule 56(c), M.R.Civ.P. Morton v. M-W-M, Inc. (1994),
263 Mont. 245, 249, 868 P.2d 576, 578. Summary judgment is proper
when there are no genuine issues of material fact and the moving
party is entitled to judgment as a matter of law. Rule 56(c),
M.R.Civ.P. The party seeking summary judgment bears the burden to
show t h e Court that it has met the standards set forth in Rule
56(c), M.R.Civ.P. Morton, 868 P.2d at 579. If the moving party
has met this burden of proof, the nonmoving party has the burden of
showing that a genuine issue of material fact exists or that the
moving party is not entitled to judgment as a matter of law.
Morton, 868 P.2d at 579. When raising the allegations that
disputed issues of fact exist, the nonmoving party has an
affirmative duty to respond by affidavits or other sworn testimony
containing material facts that raise genuine issues; conclusory or
speculative statements will not suffice. Morton, 868 P.2d at 579.
WRONGFUL TERMINATION
Under the Wrongful Discharge from Employment Act (the Act), an
employee who has completed the employer's probationary period has
a valid ground for maintaining a cause of action against the
employer if the employee's discharge was not for "good cause. 'I
Section 39-2-904 ( 2 1 , MCA. The Act defines gfgood cause" as
l'reasonable job-related grounds for dismissal based on a failure to
satisfactorily perform job duties, disruption of the employer's
operation, or other legitimate business reason." Section 39-2-
9 0 3 ( 5 ) , MCA.
The issue in this case is whether Koepplin was properly
terminated for disruption of the employer's operation or other
legitimate business reason. A l1legitirnate business reason" is
defined as "a reason that is neither false, whimsical, arbitrary
or capricious, and it must have some logical relationship to the
needs of the business.'* Kestell v. ~eritageHealth Care Corp.
(1993), 259 Mont. 518, 525, 858 P.2d 3, 7. The District Court
emphasized disruption in the work place, noting that Zortman had
the right to serve its own business interest as well, stating as
follows:
Koepplinfs threat that he was going to send a supervisor
on a trip to hell was shocking and outrageous, and no employer
under Montana law has to tolerate threats and abuse of that
nature. This threat by Koepplin was disruptive to the Zortman
work place and gave Defendant good cause to discharge him from
employment.
In his Reply Brief, Koepplinis attorney argues that
Koepplin did not intend this statement to be a threat.
Koepplinlsattorney cites no Deposition or Affidavit for this
assertion. Without any basis in the factual record, the
attorney for Koepplin has put his own interpretation on the
statement arguing he can tell the jury that it was not a
threat. since Defendant has the right to serve its own
legitimate business interest in discharging the Plaintiff, the
proper focus of the inquiry should not be on whether
Plaintiff's attorney characterizes this statement as a threat,
but whether the statement was heard as a threat by George
Lytle. George LytLe specifically testified he found the
statement threatening.
Koepplin testified in his deposition that he called the
managers because he was concerned about his job. He further stated
he was not angry at the time, had consumed beer that evening and
denied that his conversation with Lytle constituted a threat. He
claims that he was making use of Zortman's "open door" policy and
that his discharge from employment did not comply with the terms of
Zortman's written personnel policy.
The undisputed facts which the District Court relied on center
around Koepplints telephone calls to Zortman managers on the night
of February 15, 1993, particularly the call to Lytle. Both Krall
and Geyer hung up on Koepplin and testified they interpreted the
calls as threatening. Geyer called the Phillips County Sheriff
after he hung up on Koepplin. The third call Koepplin made was to
Lytle and the substance of that call is quoted above as testified
to by Koepplin in his deposition. Earlier that day, Koepplin was
specifically told not to threaten or intimidate any person involved
with the investigation of the sex71al harassment complaint.
Despite being warned not to threaten anyone involved in the
investigation, Koepplin called Krz:ll, Geyer, Lytle and Green after
10:OO p . m . that same evening. These four men were in attendance at
the meeting when Koepplin was suspended. Koepplin's disingenuous
contention that he was making use of the Zortman's 'ropendoorT1
policy is unconvincing. Koep~lin knew that management was
investigating the incidents. He had been suspended during the
investigation and told to come back f o r a n o t h e r meeting two days
later.
If there were matters of importance concerning the
investigation, Koepplin would have had an opportunityto respond to
them at a later time. Koepplin testified to no such concerns, he
did not discuss them at the meeting when he was terminated and he
did not raise them after nis termination. An employer's "open
door" policy does not exist for the purpose of allowing employees
to threaten or otherwise intimidate management: it is used for the
purpose of encouraging meaningful communication between employer
and employee relating to the employer's operations.
Koepplin testified that his statements to Lytle--that he had
best get his suitcase packed for his "little trip to helln--were
not threats. He did not testify what he intended by them. He
merely testified that he was concerned about his job. Lytle
testified he felt threatened by the conversation. We agree with
the District Court that the proper emphasis here is whether the
statements were heard as a threat by Lytle and not whether
Koepplin's attorney characterizes them as a threat.
The District Court termed Koepplin's threats to Lytle as
llshockingand outrageous" and stated that under Montana law, no
employer has to tolerate threats and abuse of that nature. Geyer's
call to the sheriff after hanging up on Koepplin and his subsequent
request for the sheriff's presence at Koepplin's termination
reinforce Zortman's contention that Koepplin's statements were
taken seriously. Zortman's personnel policy has three "levels" of
disciplinary treatment which may apply according to the severity of
the particular circumstances. It provides for immediate
termination under certain enumerated circumstances depending on the
seriousness of the situation. We conclude that, in the overall
context of this case, Koepplin's threat to send Lytle on a "little
trip to hell" was at least insubordination which justified
immediate termination under Zortman's personnel policy. We further
conclude that the District Court properly characterized this
conduct as disruptive to the work place and that Zortman had the
right to serve its own legitimate business interest by discharging
Koepplin under the circumstances of this case.
Moreover, Krall and Geyer both testified by deposition that
Koepplin told them he would have his "mouthpiece" with him at the
meeting and that it was the sort you would say tlsir'r
to. Although
Koepplin did not admit to these statements, he did admit that both
Geyer and Krall hung up on him. It is further undisputed that
Geyer called Sheriff Peigneux after hanging up on Koepplin.
Koepplin has not presented any evidence that there is an issue of
material fact relating to his wrongful discharge claim. This Court
has previously held that a party cannot create a disputed issue of
material fact by putting his own interpretations and conclusions on
an otherwise clear set of facts. See, e.q., Sprunk v. First Bank
Sys. (1992), 252 Mont. 463, 466-67, 830 P.2d 103, 105. We conclude
Koepplin's conclusory and interpretive statements of material fact
do not rise to the level of genuine issues of material fact
required to defeat Zortman's motion for summary judgment on
Koepplin's claim for wrongful discharge.
INVASION OF PRIVACY
Koepplin contends that Zortman requested the Phillips County
Sheriff's presence at the termination meeting and that the ensuing
frisk was a violation of his right of privacy. He maintains that
the sheriff's actions cannot be separated from Zortman's because
Zortman had asked Sheriff Peigneux to be there.
Sheriff Peigneux and two deputies were present and frisked and
searched Koepplin upon his arrival. They did not frisk Koepplin's
wife who accompanied him to the meeting. The frisk and search
lasted for less than two minutes, according to Koepplin's
testimony. After the termination, one of the deputies was assigned
to patrol the Zortman area exclusively for a few days because of
the circumstances surrounding Koepplin's termination. Jim Geyer
requested that Sheriff Peigneux be present at Koepplin's
termination "to keep the peace." Sheriff Peigneux asked that the
request and the reasons for asking for assistance be made in
writing. Geyer provided a written request, giving details of the
call he received as well as the calls received by Krall and Lytle.
This was the only request made of the sheriff by any Zortman
employee. The decisions to frisk Koepplin and to have a deputy
patrol the Zortman area for a few days were made independently by
Sheriff Peigneux based on his professional judgment.
The District Court found that the officers' search was not a
substantial invasion of a legally protected interest, that Koepplin
had provided no authority to support an invasion of privacy tort
theory, and that the search of Koepplin was part of his being fired
and could not be separated from the termination.
Koepplin cites Johnson v. Supersave Markets, Inc. (1984), 211
Mont. 465, 686 P.2d, 209, for the premise that a person's right to
liberty is legally protected from invasion and his emotional
distress proximately caused thereby are recoverable damages for
invasion of privacy. He maintains that Johnson held that the
invasion of privacy itself could cause substantial emotional
distress in and of itself. Koepplin's argument relates to a
constitutional protection found in Article 11, Section 10 of the
Montana Constitution and involves Sheriff Peigneuxls independent
decision to frisk and search him. We conclude there is no evidence
that Zortman participated in the decision to frisk and search
Koepplin nor has any agency relationship been established. Thus,
there is no invasion of privacy proximately caused by Zortmanls
request for the sheriff "to keep the peace."
MALICE
As conceded in his brief, Koepplin has no independent claim
for malice. Pursuant to our ruling on his claims for wrongful
discharge and invasion of privacy, Koepplin has no cause of action
for which damages for malice may be awarded.
We hold the District Court properly granted summary judgment
in favor of the defendant on Koepplin's claims for wrongful
discharge, invasion of privacy and malice.
September 15, 1994
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid,
to the following named:
Jerrold L. Nye, Esq.
Nye & Meyer, P.C.
3317 Third Ave. No.
Billings, MT 59101
Steven J. Lehman, Esq.
Crowley, Haughey, Hanson, Toole & Dietrich
P.O. Box 2529
Billings, MT 59103
Thsmas E. Hattersley, 111
Gough, Shanahan, Johnson & Waterman
P.O. Box 1715
Helena, MT 59624-1715
ED SMITH
CLERK OF THE SUPREME COURT