NO. 95-259

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

GARY R. MOTARIE, II

Plaintiff and Appellant,

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v.

NORTHERN MONTANA JOINT

REFUSE DISPOSAL DISTRICT,

Defendant and Respondent.

APPEAL FROM: District Court of the Ninth Judicial District,

In and for the County of Glacier,

The Honorable Marc G. Buyske, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

John F. Lynch; Lynch & Chisholm, Great Falls,

Montana

For Respondent:

Selden S. Frisbee, Attorney at Law, Cut Bank,

Montana

Filed:

Submitted on Briefs: October 26, 1995

Decided: December 7, 1995
Justice W. William Leaphart delivered the Opinion of the Court.

Gary R. Motarie (Motarie) appeals from an order of the Ninth

Judicial District Court, Glacier County, granting Northern Montana

Joint Refuse Disposal District (NMJRDD) summary judgment. The

court concluded that there was no genuine issue of material fact as

to the essential element of Motarie's claim of wrongful discharge,

specifically, that NMJRDD fired Motarie in retaliation for his

reporting a violation of public policy. We reverse.

The following issue is raised on appeal:

Did the District Court err in granting NMJRDD's motion for

summary judgment?

NMJRDD hired Motarie in early July, 1992, as an attendant at

a landfill "roll-off site" in Cut Bank, Montana. Motarie was hired

as a probationary, or "at will" employee. According to Motarie,

NMJRDD did not provide its workers at the site with shelter,

bathroom facilities, or any means of communication. After NMJRDD

failed to ameliorate these conditions, Motarie contacted the

Federal Occupational Safety and Hazard Administration (OSHA). In

response, OSHA informed NMJRDD that OSHA had been notified of an

alleged hazard as follows:

1 . Employee is not provided with emergency communication

while working at the landfill alone which may be a

violation of Section 5(a) (1) of the Act [Occupational

Safety and Health Act of 19701.

OSHA made no determination that the alleged hazard existed and

informed NMJRDD that OSHA would not conduct an investigation at

that time. Instead, OSHA requested NMJRDD to investigate the

2
alleged conditions and make the necessary corrections. Within 30

days of receiving OSHA's notice, NMJRDD was to advise OSHA in

writing of the results of NMJRDD's investigation, with supporting

documentation, as well as a description, with supporting

documentation, of any corrective action taken. If NMJRDD did not

respond within 30 days, OSHA stated, "an investigation may be

conducted." OSHA stated that the letter to NMJRDD was not a

citation or notification of proposed penalty since these may not be

issued without an inspection or investigation of the workplace by

OSHA The record reveals no response from NMJRDD to OSHA, and

NMJRDD received no further communication from OSHA. In early

January, 1993, before his probationary term expired, NMJRDD fired

Motarie.

Did the District Court err in granting NMJRDD's motion for

summary judgment?

Our standard of review in appeals from summary judgment

rulings is de nova. Mead v. M.S.B., Inc. (1994), 264 Mont. 465,

470, 872 P.2d 782, 785. Therefore, this Court reviews an order

granting summary judgment based on the same criteria applied by the

district court pursuant to Rule 56, M.R.Civ.P. Chilberg v. Rose

(Mont. 1995), 903 P.2d 1377, 1378, 52 St.Rep. 1038, 1039 (citing

Minnie v. City of Roundup (1993), 257 Mont. 429, 431, 849 P.2d 212,

214). Summary judgment should not be granted if there is any

genuine issue of material fact. Thus, we determine whether a

genuine issue of material fact exists and whether the moving party

is entitled to judgment as a matter of law. Chilberq, 903 P.2d at

3
1379; Howard v. Conlin Furniture No. 2, Inc. (Mont. 1995), 901 P.2d

116, 118, 52 St.Rep. 814, 815. We look to the pleadings,

depositions, answers to interrogatories, admissions on file, and

affidavits to determine the existence or nonexistence of genuine

issues of material fact. Krebs v. Ryan Oldsmobile (1992), 255

Mont. 291, 294, 843 P.2d 312, 314 (citing Sherrodd, Inc. v.

Morrison-Knudsen Co. (1991), 249 Mont. 282, 284, 815 P.2d 1135,

1136).

A party seeking summary judgment has the burden of

establishing a complete absence of any genuine factual issues.

Howard, 901 P.2d at 118 (citing Hagen v. Dow Chem. Co. (1993), 261

Mont. 487, 491, 863 P.2d 413, 416). In light of the pleadings and

the evidence before the court, there must be no material issue of

fact remaining which would entitle a nonmoving party to recover.

Howard, 901 P.2d at 118. Once the moving party has met its burden,

the opposing party must present material and substantial evidence,

rather than mere conclusory or speculative statements, to raise a

genuine issue of material fact. Howard, 901 P.2d at 119. Disputed

facts are material if they involve the elements of the cause of

action or defense at issue to an extent that necessitates

resolution of the issue by a trier of fact. State Med. Oxygen v.

American Med. Oxygen (1994), 267 Mont. 340, 344, 883 P.2d 1241,

1243. Finally, all reasonable inferences that might be drawn from

the offered evidence should be drawn in favor of the party who

opposed summary judgment. Howard, 901 P.Zd at 119. In this case,

our review of the District Court‘s order granting summary judgment

4
focuses on one of the bases of wrongful discharge, namely, whether

the discharge was in retaliation for the employee's good faith

reporting of a violation of public policy. Section 39-2-904(l),

MCA.

The Montana Wrongful Discharge From Employment Act (WDFEA)

provides three bases upon which a terminated employee may bring a

claim for wrongful discharge. Section 39-2-904, MCA. These

elements are set forth in the statute:

39-2-904. Elements of wrongful discharge. A discharge

is wrongful only if:

(1) it was in retaliation for the employee's

refusal to violate public policy or for reporting a

violation of public policy;

(2) the discharge was not for good cause and the

employee had completed the employer's probationary period

of employment; or

(3) the employer violated the express provisions of

its own written personnel policy.

The parties agree that Motarie was a probationary employee.

The statutory prohibition on termination in retaliation for the

employee's refusal to violate public policy does not distinguish

between probationary and non-probationary employees. Section 39-2-

904(1), MCA. In fact, as long as an employer's conduct is

consistent with the employer's personnel policies, the only basis

for challenging the discharge of a probationary employee is that

the employer discharged the employee in retaliation for refusing to

violate public policy or for reporting a violation of public

policy. See LeRoy H. Schramm, Montana Employment Law and the 1987

Wrongful Discharge From Employment Act: A New Order Begins, 51 MONT.

L. REV. 95, 117 (1990).

5
Motarie's complaint alleges that NMJRDD violated 5 39-s

904 Cl), MCA, by terminating him because he reported unsafe working

conditions to OSHA. NMJRDD moved for summary judgment arguing that

it was undisputed that OSHA had not cited NMJRDD for a statutory

violation. The District Court agreed, concluding that NMJRDD met

its burden in support of its motion for summary judgment by

presenting undisputed evidence that there had been no OSHA

citation. Recognizing that OSHA had not cited NMJRDD for any

violation of the Occupational Safety and Hazard Act, the District

Court determined that there had been no actual statutory violation,

thus, there could be no violation of public policy.

The burden then became Motarie's to raise a genuine issue of

material fact concerning a violation of public policy. In response

to an interrogatory, Motarie testified that: "I did report to OSHA

the violation of communication and I was confronted about it by Don

and that after that time I was constantly harassed by him and feel

it was due to my report to OSHA. I was fired in retaliation for my

reporting to OSHA." The court determined that these statements

were merely conclusory and speculative. Accordingly, the court

concluded there was no genuine issue of material fact because

Motarie could not show that a violation of public policy occurred

nor could he show the basis for his belief that a violation had

occurred. We disagree.

Section 39-2-903(7), MCA, defines public policy as a policy in

effect at the time of the discharge concerning the public health,

safety, or welfare established by constitutional provision,

6
statute, or administrative rule. In the present case, OSHA'S

letter to NMJRDD stated that the alleged hazard "may be a violation

of § 5(a) (1) of the Act." The District Court premised summary

judgment upon the fact that there was no official determination

that there had been a violation of the Occupational Safety and

Health Act. In other words, the court reasoned that, because

Motarie's report did not result in a citation or investigation,

Motarie could not base his claim upon a violation of public policy.

This retrospective reasoning is without merit. It fails to

recognize that the WDFEA protects a good faith "whistle blower."

Krebs, 843 P.2d at 315. Thus, regardless of whether the employee's

report actually results in a citation or investigation, the test is

whether the employee made the report in good faith.

Motarie reported to OSHA that he was not provided with

emergency communication while working alone. Although this report

did not result in an OSHA citation, NMJRDD has not alleged or shown

that Motarie's report of working alone without emergency

communication was baseless; that is, that it was not made in good

faith. In fact, NMJRDD admits that there were no communication

facilities at any of the roll-off sites.

Therefore, we hold that Motarie's statement that he reported

potential violations of the Occupational Safety and Health Act to

OSHA and that he was fired in retaliation, are not merely

conclusory and speculative statements. Rather, Motarie has raised

a genuine issue of material fact regarding an essential element of

the WDFEA; namely, whether his discharge was in retaliation for a
good faith reporting of what he reasonably perceived to be a

violation of public policy. Consequently, we conclude that the

District Court erred in granting summary judgment.

Reversed.

We concur:
December 7, 1995

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the

following named:

John F. Lynch

LYNCH & CHISHOLM

Box 2265

Great Falls MT 59403-2265

Selden S. Frisbee

Attorney At Law

Box 1998

Cut Bank MT 59427-1998

ED SMITH

CLERK OF THE SUPREME COURT

STATE OF MONTANA