No. 89-620 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

DANIEL DEBAR, THOMAS V. HORNUNG 

and JOHN S. KOCHEL, 

Plaintiffs and Appellants, 

TRUSTEES, YELLOWSTONE COUNTY ELEMENTARY 

SCHOOL DISTRICT NO. 2 and HIGH SCHOOL 

DISTRICT NO. 2, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable William J. Speare, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Emilie Loring; Hilley & Loring; Missoula, Montana 

For Respondent: 

Laurence Martln; Felt & Martin; Billings, Montana 

Filed: 

Submitted on Briefs: July 13, 1990 

~ecided: September 5, 1990 

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Clerk 
Justice Fred J. Weber delivered the Opinion of the Court. 

Three school teachers brought this action for monetary relief 

after being suspended without pay for 2 1/2 days. The District 

Court for the Thirteenth Judicial District, Yellowstone County, 

granted summary judgment in favor of the defendants. Plaintiffs 

appeal. We affirm. 

The sole issue for our review is whether the District Court 

erred in granting summary judgment? 

The facts in this case are simple and uncontested. 

Plaintiffs, three teachers (teachers), were seen drinking alcoholic 

beverages on the school bus on their way home from a mandatory 

staff-only field trip to Custer Battlefield. The drinking incident 

was reported to the building principal. The teachers admitted to 

drinking on the bus and the matter was referred to the School 

District's central personnel administrators. 

The administrators interviewed the teachers individually in 

separate meetings. At the end of each meeting, each teacher was 

informed that he was suspended pending further notice. 

The next day, the teachers were notified that they were being 

suspended for 2 1/2 days without pay. School Board members were 

not involved in the decision. 

After filing a grievance which was not arbitrated, and a 

petition in District Court for a writ of mandate which was denied, 

the teachers filed the present action as a wage claim, seeking 

wages for the 2 1/2 days salary that had been lost, plus statutory 

penalties and attorney fees under the Wage Protection Act. 

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Concluding that the School District was immune under 5 2-9-111, 

MCA; that S 20-4-207, MCA, does not apply to temporary suspensions; 

and that no wage claim existed; the District Court granted the 

School District's motion for summary judgment and dismissed the 

case on its merits. From that decision, the teachers appeal. 

Did the District Court err in granting summary judgment? 

The teachers maintain that as teachers under contract with 

the School District, they may not be suspended without pay in the 

absence of action by the school board and compliance with the 

statutory requirements of 5 20-4-207, MCA. In so contending, they 

argue that they were entitled to written notice and a hearing 

before they could be suspended. 

The School District contends that because it is immune under 

5 2-9-111, MCA, this Court need not consider the merits of the 

case. It further maintains that 5 20-4-207, MCA, is inapplicable 

to short-term suspensions. It urges that the statute only applies 

to dismissals, and a "suspensionu is not a ndismissaltt. The School 

District claims that the power to suspend is not a statutory power, 

but rather it is derived from the power to manage. 

The question of whether a temporary suspension is governed by 

5 20-4-207, MCA, is a question of first impression in Montana. 

Section 20-4-207, MCA, provides (in part) as follows: 

Dismissal of teacher under contract. (1) The trustees 

of any district may dismiss a teacher before the 

expiration of his employment contract for immorality, 

unfitness, incompetence, or violation of the adopted 

policies of such trustees. 

(2) (a) The following persons may recommend the 

dismissal of a teacher for cause under subsection (1): 
(i) a district superintendent; 

(ii) in a district without a district 

superintendent, a principal; . . . ... 

(b) A person listed in subsection (2) (a) who 

recommends dismissal of a teacher shall give notice of 

the recommendation in writing to each trustee of the 

district and to the teacher. 

(c) The notice must state the specific instances 

of behavior or acts that led to the recommendation for 

dismissal. 

(3) (a) . . . the trustees shall notify the teacher 

of his right to a hearing before the trustees either by 

certified letter or by personal notification for which 

a signed receipt must be returned. 

The District Court differentiated between lldismissalsll and 

I1temporary suspensions~. It concluded that while the above statute 

explicitly deals with permanent dismissals, there is nothing to 

suggest any legislative intent that it apply to temporary 

suspensions. Therefore, the lower court held that "it is not a 

violation of that statute for a short-term disciplinary suspension 

to be imposed by school district central administrative personnel, 

without Board action." We agree with the conclusion of the 

~istrict Court. We hold that 2 1/2 day disciplinary suspensions 

imposed by administrative personnel do not constitute dismissals 

which come under the provisions of 5 20-4-207, MCA. 

The District Court further concluded that temporary 

suspensions are issues covered by the collective bargaining 

agreement which should be pursued through the contractual 

grievance/arbitration process provided in that agreement. The 

District Court then concluded that issues surrounding short-term 

disciplinary suspensions are grievable issues under the collective 

bargaining agreement, and therefore were not proper for 
consideration by the District Court. We agree with that 

conclusion. 

We point out that the teachers filed this claim under the Wage 

Protection Act, 5 39-3-201, MCA, & m, claiming a statutory 

penalty and attorney fees. In Julian v. Montana State Univ. 

(1987), 229 Mont. 362, 747 P.2d 196, this Court ruled that where 

no labor is performed, no claim for wages existed under the Montana 

Wage Protection Act. In the present case, the plaintiffs did not 

perform any work during the 2 1/2 days of suspension. As a result 

the District Court concluded that the claim for compensation did 

not qualify as a wage claim. We affirm that conclusion. 

We do not find it necessary to discuss the immunity aspect of 

the case. We hold that the District Court correctly granted 

summary judgment for the defendants. 

We Concur: I