No. 02-073 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

 

2002 MT 292N 

DEBRAH CARBERY, 

Plaintiff and Appellant, 

v. 

TUNDRA HOLDINGS, INC., 

Defendant and Respondent. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Mike Salvagni, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Geoffrey C. Angel, Angel Law Firm, Bozeman, Montana 

For Respondent: 

Bill Hanson, Bozeman, Montana 

Submitted on Briefs: May 23, 2002 

Decided: December 12, 2002 

Filed: 

__________________________________________ 

Clerk 
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Justice Patricia O. Cotter delivered the Opinion of the Court. 

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal 

Operating Rules, the following decision shall not be cited as precedent but shall be filed as a 

public document with the Clerk of the Supreme Court and shall be reported by case title, 

Supreme Court cause number, and result to the State Reporter Publishing Company and to 

West Group in the quarterly table of noncitable cases issued by this Court. 

¶2 Upon termination of her employment, Appellant Debrah Carbery 

filed a complaint against her former employer, Respondent Tundra 

Holdings, Inc., in the Eighteenth Judicial District Court, Gallatin 

County, to recover allegedly unpaid wages and benefits. The 

District Court entered summary judgment in favor of Tundra and 

Carbery appeals. We affirm. 

¶3 The sole issue on appeal is whether the District Court erred 

when it granted Tundra’s motion for summary judgment. 

FACTUAL AND PROCEDURAL BACKGROUND

¶4 On October 23, 2000, Carbery began working for Tundra 

Holdings, Inc., as a communications coordinator. On October 24, 

2000, Carbery signed an employment agreement which memorialized the 

verbal employment arrangements. Among other things, the employment 

agreement outlined the policy for accrued vacation time and 

employment related benefits. As to vacation time, Carbery was 

entitled to “[o]ne week during year one and two weeks per year 

thereafter.” Carbery’s benefits package included participation in 
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a group health insurance plan, an annual performance-based bonus, 

and “an annual 5-day paid trip to Scott Lake Lodge.” 

¶5 During her first week of work, Carbery received a check for 

$430.19, the equivalent of one week’s salary. Throughout the 

following weeks, on November 4 and 18, 2000, Carbery received 

biweekly checks in the amount of $860.38. However, on November 22, 

2000, Tundra’s vice president terminated Carbery’s employment. 

Following termination, Carbery received a check from Tundra in the 

amount of $1290.57 which accounted for her final week of work and a 

“two-week severance pay.” The parties appear to agree that Carbery 

received the equivalent of an eight-week salary for approximately 

four weeks worth of work. 

¶6 Following her termination, Carbery demanded compensation for 

the one week of accrued vacation time, and either specific 

performance or the monetary value of the five-day paid trip to 

Scott Lake Lodge. Initially, Tundra rejected Carbery’s demands. 

Tundra ultimately made the Scott Lake Lodge available to Carbery as 

discussed in greater detail below. However, on February 20, 2001, 

Carbery filed a complaint against Tundra in the District Court. 

The complaint alleged that Tundra “did not pay Debrah Carbery all 

her regular wages or fringe benefits,” in violation of the federal 

Fair Labor Standards Act of 1938 and Montana’s Wage and Wage 

Protection provisions at § 39-3-101, et seq., MCA. Carbery sought 

to recover the alleged unpaid wages and benefits, liquidated 

damages, and costs and fees incurred in filing the action. 
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¶7 On July 25, 2001, Tundra filed a motion for summary judgment 

on the grounds that it “performed any and all contract duties it 

conceivably had to Carbery.” Following a hearing on Tundra’s 

motion, the District Court concluded that Carbery failed to present 

any material facts to support her contention that Tundra withheld 

the alleged compensation and benefits. Therefore, on December 12, 

2001, the District Court granted Tundra’s motion for summary 

judgment and dismissed Carbery’s complaint with prejudice. Carbery 

appeals the order of the District Court. 

STANDARD OF REVIEW

¶8 We review a district court’s grant of summary judgment de novo and employ the same 

Rule 56, M.R.Civ.P., analysis as the district court. Sleath v. West Mont Home Health 

Services, 2000 MT 381, ¶ 19, 304 Mont. 1, ¶ 19, 16 P.3d 1042, ¶ 19. In Sleath, ¶ 19, we set 

forth our inquiry as follows: 

The movant must demonstrate that no genuine issues of material fact exist. 

Once this has been accomplished, the burden then shifts to the non-moving 

party to prove, by more than mere denial and speculation, that a genuine issue 

does exist. 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. We review the legal determinations made by a district court as 

to whether the court erred. 

DISCUSSION

¶9 Did the District Court err when it granted Tundra’s motion for 

summary judgment? 

¶10 Carbery maintains that Tundra has an absolute obligation to 

pay to her the wages and fringe benefits as delineated in the 

employment agreement. Specifically, Carbery seeks recovery of one 
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week of paid vacation and a five-day paid trip to Scott Lake Lodge. 

 Carbery acknowledges that she worked for Tundra for approximately 

four weeks and, yet, received the equivalent of an eight-week 

salary. However, Carbery argues that a portion of the additional 

monies constituted a “gift of two weeks severance pay . . . [for] 

prematurely terminat[ing] Debrah Carbery’s employment.” Carbery 

contends that Tundra never intended the additional money to 

constitute compensation for her accrued vacation time. Therefore, 

according to Carbery, Tundra remains indebted to Carbery in the 

amount of her unpaid vacation time. As to the trip, Carbery admits 

receiving a Scott Lake Lodge invitation from Tundra following her 

termination. However, Carbery insists that the offer was 

unreasonable and that she had to incur unnecessary legal fees to 

induce the offer. 

¶11 Carbery cites the federal Fair Labor Standards Act of 1938, 

generally, and § 39-3-205, MCA, for the proposition that an 

employee is entitled to any unpaid wages and benefits immediately 

upon separation from employment. Carbery does not dispute the fact 

that Tundra immediately tendered $1290.57 to her upon termination. 

 Nor does Carbery dispute the fact that she received the equivalent 

of an eight-week salary for approximately four weeks worth of 

employment. However, Carbery disputes the characterization of the 

additional money as compensation for her accrued vacation time. 

Instead, Carbery insists that the extra money was a gift, or a 

severance package, which Tundra customarily bestowed upon 

terminated employees. 
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¶12 To determine whether Carbery was entitled to vacation pay, we 

must look to the terms of the employment agreement. See Langager 

v. Crazy Creek Products, Inc., 1998 MT 44, ¶ 26, 287 Mont. 445, ¶ 

26, 954 P.2d 1169, ¶ 26. The employment agreement simply provides, 

“Vacation: One week during year one and two weeks per year 

thereafter.” The agreement remains silent as to when this benefit 

vests in a prospective employee. Although Tundra contends it never 

intended the interpretation proposed by Carbery, it concedes that, 

pursuant to the language in the agreement, entitlement to the 

vacation pay vested in Carbery upon commencement of her employment. 

¶13 Therefore, Tundra acknowledges its obligation to reimburse 

Carbery for the vacation pay. Tundra notes that one week of paid 

vacation equates to $430.19. As indicated above, both parties 

agree that Carbery received payment in excess of the work she 

performed. Tundra insists that these excess payments more than 

satisfied its “vacation pay” obligation under the employment 

agreement. However, Carbery argues that the conditional severance 

package should not relieve Tundra of its obligation to reimburse 

Carbery for her accrued annual leave. 

¶14 The employment agreement contains no reference to a severance 

package upon termination. Therefore, Tundra was not contractually 

obligated to issue such a package to Carbery. In theory, Carbery 

could raise genuine issues of fact regarding purported negotiations 

for the severance package sufficient to avoid summary judgment. 

However, by Carbery’s own admission, the severance package simply 

accounted for two weeks of the four-week excess pay. Even if we 
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discount the severance package, the value of the residuary amount 

paid to Carbery still exceeds the value of one week of paid 

vacation. Since she in fact received a sum equal to and exceeding 

the value of one week’s paid vacation, Carbery did not present any 

genuine issues of material fact that Tundra failed to pay her the 

vacation pay. 

¶15 As for the trip to Scott Lake Lodge, Tundra’s president signed 

and mailed the following letter to Carbery on February 12, 2001: 

Our letter agreement of October 12, 2000 states with 

respect to “Benefits,” in part, “an annual 5-day paid 

trip to Scott Lake Lodge.” While it was not my 

subjective intention to bind the company to provide such 

a trip to an employee who is terminated in the first two 

months of her employment, I can understand your position. 

Accordingly, this is to let you know that Tundra Holdings 

will provide you a 5-day trip to the Lodge. The dates we 

have open for you right now are August 20-25 and August 

25-30. Please contact me at your earliest opportunity to 

confirm which dates you want and to make the necessary 

arrangements for your trip. 

In preparation for trial, Tundra deposed Carbery and inquired into 

her receipt of the above letter. At the deposition, Tundra’s 

attorney and Carbery engaged in the following colloquy: 

Q: Do you recognize Exhibit 14? 

A: Yes, I do, sir. 

Q: And what is Exhibit 14? 

A: This is a letter to me from Dale Trapp dated February 

12th shown to me by my attorney. 

. . . . 

Q: Isn’t it true that you have not as of this date 

contacted Mr. Trapp in response to that letter? 

. . . . 

A: I have not. 
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. . . . 

Q: Isn’t it true, Debrah, that you understand that this 

letter is an invitation for you to contact Mr. Trapp to 

make arrangements for a five-day paid trip to the Great 

Scott Lake Lodge? 

A: My understanding of this letter is that he is honoring 

the employment agreement in respect to benefits which 

includes an annual five-day paid trip to Scott Lake 

Lodge. 

Q: Do you understand from this letter that if you desire 

to take that trip, that it’s necessary for you to contact 

him to make arrangements to go on it? 

A: I understand that. 

Q: Okay. And, again, just to clarify, you have not done 

that yet, you have not done that as of today? 

A: I have not. 

¶16 In her complaint, Carbery stated that “Tundra Holdings failed 

to pay Debrah Carbery the . . . fringe benefits to which she was 

entitled under the written compensation agreement . . . .” 

However, the above testimony contradicts this very proposition. 

Carbery admits in her deposition that Tundra extended the offer in 

an effort to “honor[] the employment agreement in respect to 

benefits.” On appeal, Carbery claims that Tundra made an 

unreasonable offer only after she obtained the services of counsel. 

 However, Carbery never attempted to contact Tundra in response to 

the offer. For the foregoing reasons, we conclude that Carbery has 

not presented any genuine issues of material fact to support her 

contention that Tundra failed to provide her with the fringe 

benefits as prescribed in the employment agreement. Accordingly, 
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we hold that the District Court did not err when it granted 

Tundra’s motion for summary judgment. 

¶17 Affirmed. 

/S/ PATRICIA COTTER 

We Concur: 

/S/ KARLA M. GRAY 

/S/ TERRY N. TRIEWEILER 

/S/ JAMES C. NELSON 

/S/ W. WILLIAM LEAPHART