No. 89-169 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

DAVID COOMBS, 

Plaintiff and Appellant, 

-vsGAMER SHOE COMPANY, 

A Montana corporation, 

Defendant and Respondent. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Henry Loble, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Ronald F. Waterman; Gough, Shanahan, Johnson and 

Waterman, Helena, Montana 

For Respondent: 

Gary M. Zadick and Mark F. Higgins; Ugrin, Alexander, 

Zadick & Slovak, Great Falls, Montana 

- Submitted on Briefs: Aug. 3, 1989 

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-2 > 2% Decided: August 25, 1989 - 9 

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Filed: -- 

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Justice John Conway Harrison delivered the Opinion of the 

Court. 

This case originated as a wrongful discharge action in 

the First Judicial District Court, Lewis and Clark County. 

Appellant asserted that his termination breached the implied 

covenant of good faith and fair dealing. The District Court 

granted respondent Gamer Shoe Company's (Gamers) motion for 

summary judgment and appellant Coombs appeals that decision. 

We affirm. 

Coombs presents essentially one issue for review. Did 

the District Court err in holding that no genuine issue of 

material fact existed regarding respondent's claim that 

Coombs lost his job as part of a legitimate reduction in work 

force . 

David Coombs began working for Gamers in 1977 at the 

Carlson's store in Great Falls. Gamers had previously 

purchased Carlson's. Within a month Coombs was promoted to 

store manager. He worked as the manager of Carlson's until 

the fall of 1983 when he was promoted to the position of 

buyer of children's and men's shoes. Another Gamers 

employee, Roger Howell, transferred to Carlson's from a 

recently closed Gamers store to fill the position of store 

manager. As Coombs' buying position was not full time, he 

continued to work as a floor salesperson when not engaged in 

his buying duties. Coombs held this position until he left 

Gamers . 

In August of 1986, Loren Miles, Coombs' supervisor, 

informed him that because of poor economic conditions, Gamers 

might close Carlson's at the end of its lease period in 1987. 

At that time, Carlson's personnel also suffered a wage 

reduction. Prior to this, Coombs had written a memo 
detailing the poor economic conditions facing the Carlson's 

store. Also, after August of 1986, Coombs and other Gamers' 

employees shared their concerns about the company's general 

economic viability. At that time appellant was aware 

specifically that the future of both the Carlson's store and 

his position were uncertain. Loren Miles did tell Coombs 

that Gamers would do what it could to find him a position. 

However, Gamers did not guarantee, either verbally or in 

writing, that Coombs would still have a position with Gamers 

if the Carlson's store closed. 

In mid-April of 1987, Miles informed Coombs that Gamers 

had decided to close Carlson's at the end of summer. Coombs' 

position, along with the two other Carlson's employees, both 

senior to Coombs in date of hire, would be eliminated. 

Management would assume Coombs' buying duties. Gamers gave 

Coombs the opportunity to continue working part-time as a 

salesperson until the store actually closed. Coombs declined 

the offer. The store did close and none of the Carlson's 

employees were retained as Gamers' employees. No one was 

hired to replace Coornbs as a buyer. Coombs does not contend 

that Gamers terminated him for cause. He does contend that 

Gamers should have found a place for him even though he 

testified that Gamers did not guarantee him a job. Gamers' 

management testified that Coombs was a loyal and satisfactory 

employee. 

Relying on facts from appellant's deposition, the 

District Court concluded that respondent was entitled to 

summary judgment. Summary judgment is proper when no genuine 

issue of material fact exists and the moving party is 

entitled to judgment as a matter of law. The movant has the 

burden of showing a complete absence of any genuine issue as 

to all facts considered material in light of the substantive 

principles that entitle the movant to a judgment as a matter 
of law, and all reasonable inferences that may be drawn from 

the offer of proof are to be drawn in favor of the opposing 

party. Cereck v. Albertson's, Inc. (1981), 195 Mont. 409, 

637 P.2d 509. If the moving party makes the necessary 

showing, the burden of proof shifts to the party opposing the 

summary judgment motion to present evidence of a material and 

substantial nature raising a genuine issue of fact. Mayer 

Bros. v. Daniel Richard Jewelers, Inc. (1986), 223 Mont. 398, 

726 P.2d 815. 

Appellant argues that the District Court erred because 

it overlooked issues of material fact raised by the record. 

Basically, Coombs urges this Court to recognize that two fact 

questions exist regarding his claim of breach of the implied 

covenant of good faith and fair dealing. Appellant contends 

that the record reveals a factual issue on whether Gamers' 

reason for eliminating Coombs' position was a pretext. 

Further, Coombs claims that a conflict exists on whether 

Gamers' actions breached the implied covenant of good faith 

and fair dealing because those actions led Coornbs to 

reasonably believe that Gamers would find a job for him. We 

disagree. 

Even if the implied covenant of good faith and fair 

dealing governs the employment relationship, an employer may 

still terminate an employee as long as the employer gives a 

fair and honest reason. Hobbs v. Pacific Hide and Fur Depot 

(Mont. 1989), 771 P.2d 125, 130, 46 St.Rep. 544, 550. The 

implied covenant of good faith and fair dealing does not 

prevent an employer from making legitimate reductions in 

workforce necessary to maintain business viability. Flanigan 

v. Prudential Savings and Loan (1986), 221 Mont. 419, 426, 

720 P.2d 257, 261. Further, an employer "is entitled to be 

motivated by and serve its own legitimate business interest 
and must be given discretion in determining who it will 

employ and retain in employment." Hobbs, 771 P.2d at 130. 

In the instant case, it is undisputed that Gamers had 

for some period of time experienced financial difficulties 

that necessitated closing several stores including the Great 

Falls Carlson's store. Although appellant argues that 

respondent should have made a more particularized proof 

regarding economic necessity, facts and figures certainly are 

not required when all parties admit that the business was in 

trouble and the business actually closed. Coombs knew of the 

economic difficulties of Gamers in general and of the Great 

Falls Carlson's store in particular. For some time prior to 

his termination, he knew that the Carlson's store might close 

and that his job was in jeopardy. None of the Carlson's 

store employees from Great Falls were given other positions 

in the company. 

Although Gamers did tell Coombs that it would try to 

find a place for him, Coombs testified that these assurances 

were not promises and did not guarantee him continuing 

employment with Gamers. Coombs also concedes that he had no 

right to continued employment based on seniority. As well, 

Coombs testified that Gamers did not terminate him for cause. 

In short, the record establishes that Gamers discharged 

Coombs for legitimate economic reasons. Therefore, Gamers 

did not violate the covenant of good faith and fair dealing 

implied in its employment relationship with Coombs. 

As appellant points out, the record does disclose some 

conflict between his deposition testimony and that of Loren 

Miles regarding Coombs seeking manager positions in other 

Gamers stores. However, given the equivocal nature of 

Coombs' testimony on his efforts to transfer out of Great 

Falls, this conflict does not appear genuine. Even if the 

conflict raised a genuine issue of fact, the issue is not 
material to the substantive law in this case. Gamers 

admittedly did not have any obligation to find Coombs another 

position within the company, by either express personnel 

policy or any verbal or written promises of management. 

Further, this Court recognizes that employers must have 

discretion in making personnel decisions. Hobbs, 771 P.2d at 

130. Thus, absent any evidence of dishonesty or pretext, 

even if Coombs had been passed over for manager positions, 

Gamers' actions would be appropriate given an employer's 

discretion to make personnel decisions it feels are in its 

best interests. No evidence of pretext exists in the record. 

Therefore, any issue that does exist on whether Coombs 

actively sought transfers is not a material issue and thus 

does not preclude summary judgment. 

Appellant also argues that Gamers constructively 

discharged him. The record does not support this theory. 

We affirm the District Court. 

We concur: ii