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 Honorable Katherine 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 

[Clerk 
Justice 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. 

Fenger attended a staff meeting 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 

allow visitors in the secure areas of the JDC. On February 25, the 

director of the Center circulated a memorandum to the staff stating 
that 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 the memorandum. On March 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's personnel policy lists the "failure to 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, §§ 39-2-901 through -915, MCA. Flathead County, 

relying on affidavits of county officials, juvenile detention 

center employees, and the transcript of the Commissioner's hearing, 

moved for summary judgment. The District Court determined there 

was no genuine issue of material fact and that the undisputed facts 
established a violation of a JDC policy. 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 court must 

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 county policy constituted reasonable grounds for his 
discharge. The county asserts that there are no material 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's Mr. 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 

situation and said, you know, we can't have 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 you had a staff meeting not too long after 

that where that was discussed, didn't you? 

Uh-huh (a£ f irmative) . 

So you knew, in February, not to let people in? 

OK. 

And then, about February 25th, a memo was 

issued, wasn't it? 

Umhum (a£ f irmat ive) . 

Is that the memo? 

I, uh, yes it is. 

5 
SMITH : And, you read that? 

FENGER: Yes, I read and signed it. 

SMITH : And your initials are on the back? 

FENGER: Umhum (a£ f irmative) . 

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 Fenger attended the meeting on February 14, 1995. Disregarding 

this policy, Fenger allowed visitors to enter into the secure areas 

of the facility between February 17 and February 24. The memorandum 

regarding the policy was circulated on February 25, 1995. Fenger 

concedes in his affidavit that he had read the memo 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 on duty 

on March 9, 1995. 

In Belcher v. Department of State Lands (1987), 228 Mont. 352, 

355, 742 P.2d 475, 477, we determined that summary judgment is 

appropriate in wrongful discharge cases when the complaining party 

cannot point to a material and substantial act that would alter the 

district court's decision. In Belcher, after an extensive review 

of the record and deposition transcript, we held that: 
[Nl o underlying dispute of facts is present. Belcher was 

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 to us 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 question of 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 Wilson v. Westinghouse (8th Cir. 19881, 838 F.2d 286, 

289), this Court stated that: 

While the district courts must exercise extreme care not 

to take genuine issues of fact away from juries, (a) 

party should not be allowed to create issues of 

credibilityby contradicting his earliertestimony' . . . a district court may grant summary where a party's sudden 

and unexplained revision of testimony creates an issue of 

fact where none existed before. Otherwise, any party 

could head off a summary judgment motion by supplementing 

previous depositions ad 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, 806-07 
Fenger cannot create a genuine issue of material fact as to 

his knowledge of this policy prior to the circulated memo by 

contradicting his own testimony in his new affidavit. Fenger's own 

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 to prevent 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 on a failure to satisfactorily perform job duties, disruption 
of the employer's operation, or other legitimate business reason. 

Section 39-2-903 (5), MCA. Flathead County's personnel policy lists 

as just cause for termination, the "failure to 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 State Bank (1992), 252 Mont. 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-related grounds for dismissal. 

Af f irmed. 

a= Justice 

We concur: 

Chief Justice