NO. 96-194 IN THE SUPREME COURT OF THE STATE OF MONTANA

DARRIN FENGER

### , Plaintiff and Appellant,
v. FLATHEAD COUNTY, MONTANA, a body politic and corporate; the Board of county commissioners thereof; and HOWARD GIPE, SHARON STRATTON, and ROBERT WATNE, in their official capacity as County Commission members, Defendants and Respondents.

APPEAL FROM: District Court of the Eleventh Judicial District, In and for the County 

### of Flathead, The HonorableKatherine R. Curtis, Judge presiding.

COUNSEL OF RECORD: For Appellant: Michael 

### H. Keedy, Atherton & Keedy, Kalispell, Montana For Respondents: Jonathan B. Smith, Deputy Flathead County Attorney, Kalispell,Montana

Filed: Submitted on Briefs: July 25, 1996 ~~~id~d: August 27, 1996

[ClerkJustice Charles E. Erdmann delivered the opinion of the Court. Darrin Fenger appeals the order of the Eleventh Judicial District Court, Flathead County,granting summary judgment for the defendants. The summary judgment order held as a matter of law that Fenger's dismissal was supported by reasonable job-related grounds pursuant to § 39-2-903(5),MCA. We affirm. The issue on appeal is whether the District Court erred in granting summary judgment in favor of Flathead County. FACTS Darrin Fenger was hired by Flathead County in 1989 as a permanent, full-time juvenile detention officer at the Flathead County Juvenile Detention Center (JDC). He completed the county's probationary period in late 1989 or early 1990. On February 4, 1995, Fenger and his co-worker,Glenn Osborne,were on duty at the JDC. A supervisor, Dale Gifford, stopped by and saw three acquaintances of Fenger and Osborne in the center,one of whom was in a secure area of the facility. Gifford told Fenger and Osborne that at no time were visitors allowed in the secure areas of the center. Fengerattended a staffmeeting on February 14, 1995,at which the staff members were reminded that no civilian visitors were to be allowed in the secure areas of the facility. Between February 17 and February 24, 1995,Fenger and Osborne continued to allowvisitors in the secure areas of the JDC. On February 25, the director of the Center circulated amemorandum to the staff statingthat visitors were not allowed in the secure areas and that violation of that directive would result in disciplinary action including possible termination. All staff members, including Fenger and Osborne, read and initialed thememorandum. OnMarch 9, 1995, Fenger and Osborne were on duty when a visitor again was allowed to enter into a secure area of the facility. Flathead County'spersonnel policy lists the "failureto obey any order made and given by a supervisor" as just cause for discharge. Fenger was given a notice of intent to discharge and
was given the opportunity to appear before the Director to present his side of the story before any disciplinary action was imposed. Fenger and Osborne were both terminated by the Director of the JDC
on April 10, 1995. Fenger then filed a notice of appeal with the Board of Commissioners of Flathead County. A hearing was held before the Commissioners at which Fenger acknowledged that he was aware of the rule and that an individual had been in a secure area of the center on March 9, 1995. On May 3, 1995, the Commissioners met and affirmed the termination of Fenger

### . Fenger filed an action under the Wrongful Discharge From Employment Act, §§ 39-2-901through -915,MCA. Flathead County, relying on affidavits of county officials, juvenile detention centeremployees,and the transcriptof the Commissioner'shearing, moved for summary judgment. The District Court determined there
was no genuine issue of material fact and that the undisputed factsestablished a violation of a JDCpolicy. The court held that this violation as a matter of law was good cause for termination pursuant to 5 39-2-903,MCA. The court therefore granted summary judgment. Fenger appeals. ISSUE Did the District Court err in granting summary judgment in favor of Flathead County? Our standard of review in appeals from summary judgment rulings is de novo. Wadsworth v. State (Mont. 1996), 911 P.2d 1165, 1169, 53 St. Rep. 146, 148;Mead v. M.S.B., Inc. (1994),264 Mont. 465, 470, 872 P.2d 782, 785. This Court will apply the same evaluation as the district court based on Rule 56, M.R.Civ.P. Bruner v. Yellowstone County (1995),272 Mont. 261, 264, 900 P.2d 901, 903. The movant must demonstrate that no genuine issues of material fact exist. Toombs v. Getter Trucking, Inc. (19931,256 Mont. 282, 284, 846 P.2d 265, 266. Once this has been accomplished, the burden then shifts to the nonmoving party to prove, by more than mere denial and speculation, that a genuine issue of material fact exists. Bruner, 900 P.2d at 903. Having determined that genuine issues of fact do not exist, the courtmust then determine whether the moving party is entitled to judgment as a matter of law. Lindey's,Inc.v. Professional Consultants, Inc.

(1990),244 Mont. 238, 244, 797 P.2d 920, 924. Fenger argues that it is a material question of fact whether the breach of countypolicy constituted reasonablegrounds forhisdischarge. The county asserts that there are nomaterial questions of fact because there was a breach of the policy and this failure to obey an order made and given by a supervisor constitutes good
cause as a matter of law for dismissal. At the hearing concerning his termination Fenger stated: 

### I guess all this started,Mr. Gifford came in one night and (paper shuffling) (inaudible)

## . . . my dates. Well, basically, there'sMr. Gifford came in and there's three of my friends on a softball team. We're making up a roster, talking about it; and, Dale came in and there's a little conflict going on in the day room with some juveniles. So, me and Glenn Osborne and I, we had the situation under control. Dale talked to us about the situationand said, youknow,we can'thave people coming in here, and one kid was behind the secured area. On cross-examination,the following questions were asked and answered: SMITH: FENGER: SMITH: FENGER: SMITH:
FENGER: SMITH: FENGER: SMITH:
FENGER: SMITH: FENGER: The night that Dale came, 4th of February.


### . . Umhum (affirmative). He told you don't let visitors in? Right. And youhad a staff meeting not too long after that where that was discussed, didn't you? Uh-huh (a£ firmative)


### . Soyouknew,in February,not to letpeople in? OK. And then, about February 25th, a memo was issued,wasn't it? Umhum (a£ firmative)


### . Is that the memo? I,uh,yes it is.
5SMITH: And, you read that? FENGER: Yes, I read and signed it. SMITH: And your initials are on the back? FENGER: Umhum (a£ firmative)


### . SMITH: And paragraph number four of that, again talks about not having visitors, doesn't it? FENGER: Yes, it does. Fenger admits to having been told by a supervisor on February 4, 1995, that visitors were not allowed in the secure areas of the facility. He admits that at the staff meeting later the same month this matter was again discussed. The record shows that Fengerattended the meeting on February 14,1995. Disregarding thispolicy, Fengerallowedvisitors to enter into the secureareas of the facility between February 17and February 24.Thememorandum regarding the policy was circulated on February 25, 1995. Fenger concedes inhis affidavit that he had read thememo which warned of possible termination for a violation of the policy prior to allowing a visitor to enter into a secure area while he was onduty
on March 9, 1995. InBelcherv.Department of State Lands (1987),228 Mont. 352, 355, 742 P.2d 475, 477, we determined that summary judgment is appropriate inwrongful discharge cases when the complaining party cannot point to amaterial and substantial act that would alter the district court'sdecision. In Belcher, after an extensive review of the record and deposition transcript,we held that:[Nlo underlyingdispute of facts ispresent. Belcherwas not doing his job; he had received notice that his work was not adequate;he failed to rectify the situation;and he was subsequently discharged. It appears tous that no basic question of fact exists for jury determination and Belcher does not raise any specific fact question. Belcher, 742 P.2d at 477-78 Fenger attempts to raise a questionof fact by denying that he had any knowledge of the policy prior to the February 25 memo. He argues that because the policy was new to him when he received the
memo in early March 1995, the only violation which can be considered is the March 9, 1995, violation. Fenger argues that this was insufficient to constitute good cause for dismissal and that the county itself acknowledges that the policy violation of March 9, 1995, "standing alone 

## . . 

## . would not have resulted in discharge." In Stott v. Fox (1990),246 Mont. 301, 309, 805 P.2d 1305, 1309 (quoting Wilsonv. Westinghouse (8thCir. 19881,838 F.2d 286, 289), this Court stated that: While the district courtsmust exercise extreme care not to take genuine issues of fact away from juries, (a) party should not be allowed to create issues of credibilitybycontradicting his earliertestimony'


### . 

## . . a district courtmay grant summarywhere aparty'ssudden and unexplained revisionof testimonycreates an issue of fact where none existed before. Otherwise, any party couldhead off a summary judgment motionby supplementing previous depositionsad hoc with a new affidavit, and no case would ever be appropriate for summary judgment. See also Kaseta v. Northwestern Agency of Great Falls (1992),252 

### -- Mont. 135, 138-40,827 P.2d 804, 806-07Fenger cannot create a genuine issue of material fact as to his knowledge of this policy prior to the circulated memo by contradictinghis own testimony in his new affidavit. Fenger'sown testimony established that he was given notice of the policy prior to the February 17 through 24 violations. It is clear that Fenger was not doing his job in accordance with the policy of the JDC. Fenger failed to rectify the situation in which visitors were allowed into secure areas of the facility after he had notice of the policy. Regardless of whether or not Fenger informed visitors of the policy and directed them to stay out of the secure area, it is clear that while he was on duty visitors did enter into secure areas of the facility. Fenger failed to take adequate measures toprevent visitors from entering the secure areas which was his duty as directed by the supervisors of the facility. After reviewing the record de novo we determine that there are no genuine issues of material fact for a jury determination. 

### See Belcher, 742 P.2d 475. Having determined that no genuine issues of fact exist, this Court must determine whether Flathead County is entitled to judgment as a matter of law. Lindev's, 797 P.2d 920. Section 39-2-904(2),MCA, states that a discharge is wrongful only if it
was not for good cause and the employee had completed the employer's probationary period of employment. Good cause is defined as meaning reasonable job-related grounds for dismissal based ona failureto satisfactorily perform job duties,disruptionof the employer's operation, or other legitimate business reason. Section 39-2-903 (5), MCA. FlatheadCounty'spersonnel policy lists
as just cause for termination,the "failureto obey any order made and given by a supervisor." The record demonstrates that Fenger did not satisfactorily perform his job duties, as he repeatedly ignored the written and oral directives to keep visitors out of the secure areas of the facility. Miller v. Citizens StateBank (1992),252Mont. 472, 830 P.2d 550. We therefore hold that the violations of the county's policy by Fenger constitute, as a matter of law, reasonable job-relatedgrounds for dismissal. Affirmed. 

# a= Justice

We concur:

Chief Justice