No. 87-07

IN THE SUPREME COURT OF THE STATE OF MONTANA
1987

HERB BELCHER,PlaintiffandAppellant,-vsDEPARTMENTOF STATELANDS, a political subdivision of the State of Montana, Defendantand Respondent.

APPEAL FROM: District Court of the Fourth JudicialDistrict, Inand for the County ofMissoula, TheHonorable DouglasHarkin,Judgepresiding.

COUNSEL OF RECORD:

ForAppellant: Datsopoulos,MacDonald & Lind; Edward A. Murphy, Missoula, Montana

For Respondent:
John Bobinski,Dept. ofAdministration, Helena, Montana

Submitted on Briefs: July 

### 1, 1987 Decided: September15, 1987

ClerkMr. JusticeJohn Conway Harrison delivered the Opinion of the Court.

Herb Belcher appeals from an order of the Fourth Judicial District Court, Honorable Douglas G. Harkin presiding, that granted summary judgment under Rule 56(c), M.R.Civ.P., for the defendant, Department of State Lands. Because our review of the record shows that there were no material issues of fact and because the law is squarely behind the defendant, this Courtwill affirm the judgment of the DistrictCourt. Belcher filed suit against the Department on February 19, 1985,alleging that the Departmenthad actedwithout just

causewhen itdismissedhim from employmentonApril 3, 1984. He also claimed that the dismissalwas not in accordance with Department policies on discipline and discharge, that the Department breached its contract of employment with Belcher, and by doing so, had breached the covenant to deal fairly with Belcher. In its defense, the Department denied the charges and answered that Belcher had failed to exhaust the grievanceprocedures availableto him. The Departmentmoved for summary judgment. Itasserted that the causes for Belcher's dismissal were not disputed and that Belcher merely sought to have a jury reconsider his firing. TheDistrict Court considered two sets ofbriefs and also heard oral arguments on themotion. The District Court specifically requested Belcher to set out thepublic policies that he alleged his firing violated. Belcher failed to respond to this request of the court. The District Court determined that traditional public policy violationswere not at issuehere. Itruled also that Belcher did not claimhe was fired for a reason thatviolated good faith.The basic cause for termination isnot in dispute. The court's role is to determine whether the Department's procedural handling of this case complied with its written personnel policies. If the termination is in compliance with procedures; the termination is proper.

(Emphasisin original.) District Court Order and Memorandum of October 28, 1986, p. 2, citing Nye v. Department of Livestock (1982), 196 Mont. 222, 639 P.2d 498. The District Court concluded that the Department, not the courts, had the responsibility to evaluate Belcher's performanceand to discipline or terminate Belcher. Thus, it granted summary judgment for the Department onOctober 28, 1986. In September 1980, Belcher joined the Department as the communications engineer for the Fire Suppression Bureau in Missoula. Later memorandums indicate that as much as 60 percent of the communicationsengineer's timewas tobe spent repairing and installing radios and devising a statewide communications system and design. The remainder of the communications engineer's timewas to be spent with licensing matters, preparation of bid specifications and budget estimates as well as travel and firefighting activity. All of these duties were listed in the position description that

was issued in June 1980. Belcher's supervisor, Jack Peters, began receiving complaints about Belcher's work in 1982. The substance of these complaints was that Belcher was not designing radio systems adequately; that he was shirking his responsibility of setting up radio stations by having regional officers do the legwork that he was better qualified for; that the statewide communication plan he had been assigned to write

was short, weak, ineffective, incompleteand incomprehensible to the layman; that he had consistently failed 

### to file forthe needed licenses with the Federal Communications Commission; and that he had used a state vehicle (onwork time) in private projects for profit. A memorandum of punitive discipline requiringBelcher to compensate the state for private use of a state vehicle was issued to Belcher on January 17, 1983. Belcher noted that he reserved the right to respond at a later date and signed the document. In April 1983, Peters removed Belcher from other work activities so thathe could devote full time to preparing the plan. Belcher was told that the communicationplan had top priority and that itwas essential since Department employees depended on the radios for their lives in emergencies. Peters also began filing memoranda on Belcher's performance. In a two-month period in late 1983, three separate field officers complained to Peters about incompetence on the part of Belcher in setting up and licensing a communications system near Miles City; in setting up a base station in southwestern Montana that did not allow for a remote control specificiation; and devising a system near Kalispell that allowed for two radio channels,but since each canceled out the other only one couldbe used at a time. These last complaints served as the basis of a notice of corrective discipline issued to Belcher on January 12, 1984. This notice compliedwith state disciplinary rules by identifying the grounds for the disciplinary action, listing the improvements anticipated, and noting the consequences of failure to comply, including the possibility of termination. The notice required the performance deficienciesbe rectified within 60days and that Belcher submit to weekly evaluations. It required also that Belcher submit a complete Radio Communications Plan and a manual on maintaining and installing radios. Belcher was advised of his right to file

a rebuttal;he chose not to file the rebuttal.Peters met with Belcher on March 5, 1984. He warned Belcher thathis progress was not sufficient. He conducted 

### a review of Belcher's actions on March 16 and determined that Belcher'swork remained inadequate. TheRadio Communications Plan, which the Department had been expecting from Belcher sincehe had been hired,was submittedonMarch 14, 1984. It consisted of 26 pages, eight of them blank forms. Itdid not include somematerial that Petershad specifically requested. On March 19, 1984 and at Peters' request, Belcher filed a memorandum "of things done during the past 60 day[s]

# ." It lists nine tasks, several of which Belcher conceded at deposition would have taken a matter of hours to do. Also listed was revision of the radio plan and revision for the communicationplan. The Department, however, still found the plans tobe deficient. On April 3, 1984, Belcher was told by Dennis Hemmer, Commissioner of StateLands,thathe was being dismissed. He

was notified that he had a right to have an attorney at the meeting and that he had a right to file a grievance. He did not call his attorney,although he had retained legal counsel believing this result was imminent, and did not file the grievance. This extensive review of the record is necessary since the first question this Court faces is whether the District Court erred in granting summary judgment. Summary judgment under Rule 56(c), M.R.Civ.P., is intended to encourage judicial economy by eliminating unnecessary trials in which

no genuine issueof fact ispresented. Cereckv. Albertson's Inc. (1981), 195 Mont. 409, 411, 637 P.2d 509, 510. This Court will uphold summary judgments when the complaining party cannot point to material and substantial facts that would alter the District Court's decision. If a factual controversy exists, disposition by summary judgmentwill notsuffice. Dare v. Montana Petroleum Marketing Co. (~ont. 1984), 687 P.2d 1015, 1019, 41 St.Rep. 

### 1735, 1738. In the midst of a four-day deposition of Belcher, this exchange occurred: Q. [ByMs. Mitchell] The allegations of your Complaint says [sic] your terminationwas without just cause. Why doyou think your terminationwaswithout just cause? What doyoumean?

A. I believe that I was under such a strain 

### Iwas unable to perform my duties properly. Q. Are you stating that you failed to performyourdutiesproperly?

A. Under the conditions,yes. Q. How do you think the Department of State Lands violated its policy on discharge?

A. Under the Montana--they call it the MOM manual. I think it is specified a corrective memo is not just cause for termination. I believe it has got tobe a disciplinary memo. 

### I think that's stated in themanual. Q. Doyou consider,under the Department of State Lands policies, a failure to properly perform the duties of your position just cause fordischarge?

A. Not necessarily. 

### Q. But it is a reason for discharge, isn't it?

A. Yes. Q. Your Complaint says that the Department of State Lands violated a contractof employment. What contractof employmentdid youhavewith State Lands?

### A. It is an unwritten contract. I 

### believe in the--for any new employee there is a 6

### months' probationary period and it ismore or less understood after 6 

### months it is a permanent position. I believe that is a common belief of the majority of the people that work for the State.
Q. 

### Permanent employeescanbe discharged for failure to properly perform their duties,can't they?

A. 

### You canbe terminated for any reason. (2. 

### Yes orno.


### A. Yes. This exchange indicates that no 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 factquestion. Instead,he raises three issuesof law: 1. 

### Did the District Court err when it held no action forwrongful discharge or breach of the covenant of good faith would lie if the employer followedproper procedure?
2. 

### Does termination of state employment without just cause constitute aviolation of public policy sufficient to be a wrongful discharge?
3. 

### Does an employerwho has promulgated rules saying that employees will not be discharged except for just cause violate the covenant of good faith and fair dealing if he discharges an employee without just cause?Section 39-31-303, MCA, guarantees the Department certainrights: Public employees and their representatives shall recognize the prerogatives of public employers to operate and manage their affairs in such areas as,but not limited to:



### (1)direct employees; (2) hire, promote, transfer, assign, and retain employees;

(3)relieve employees fromduties because of lack of work or funds or under conditions where continuation of such work be inefficient and nonproductive;



### (4) maintain the efficiency of government operations;

This statute was held valid where a school district demoted

an administrator and reassigned her to classroom activities. Sorlie v. School District No. 2 (Mont. 1983), 667 P.2d 400, 404, 40 St.Rep. 1070, 1075. Because terms of Belcher's employmentcontract included the development of a Radio Communications Plan and a Radio Manual,because Departmentmanagers instructedhim as to what subjects should be included in the manual and plan, because Belcher failed topromptly andproperly complete those items, and because Belcherproved tobe incompetent in other aspects of his job, the Department exercised its right to dismiss Belcher. Supervisors had issued reprimands, notices of corrective discipline and notices of punitive discipline throughout Belcher's 43 months of employment. He had the chance to rebut these charges, but chose not to do so. He had the right of grievance, but failed to exercise it. Furthermore, Relcher was unable to show the District Courtwhat public policies were affected by his dismissal other thanhis ownbelief that just causewasviolated. There are many public policy concernsthatwill trigger a wrongful discharge claim. Examples were discussed in one recent case: dismissal of employee for not perjuring himself; dismissal of employeewho files forworkers' compensation; or dismissal of the employee who refuses sexual relationships with employer. Keneally v. Orgain (1980), 186 Mont. 1, 6, 606 P.2d 127, 129. In order to find a public policy concern that would permit Belcher to collect for wrongful termination, this Court would need to add another proscription, the dismissal of state employees who are not performing their duties. In order to constitute a public policy violation, Belcher's claims would have to "further a state interest in protecting the general public which transcends the employment relationship." Brinkman v. State of Montana (Mont. 1986), 729 P.2d 1301, 1308, 43 St.Rep. 2163, 2171, (emphasis in original). Relcher's claim doesnot state apublic concern; it is apersonalmatter. Belcher asserts that S 2.21.6503(6), A.R.M., in effect when he was dismissed, supports his claim that his dismissal violated public policy. Section 2.21.6503 (6)

## , A.R.M. read, "When punitive discipline is necessary, just cause, documentation of facts, and due process are required." Section 2.21.6507(6) defines just cause as "reasonable, job-related grounds for taking adisciplinary actionbased on failure to satisfactorily perform job duties

# . . . " This Court has held that administrative rules "may 

### -be the source of a public policy," 

### Q, 639 P.2d at 502 (emphasisadded); but that public policy is not derived solely from administrative rules. "Public policy violations may conceivably arise on other facts or theories." Dare, 687 P.2d at 1019.The facts that Belcher disagreed with his discharge does not mean that the Department's decision was wrong, Belcher's right to grievance proceedings under S 2.21.6503 (I), A.R.M., (now found at S 2.21.6515, A.R.M. provided his remedy. He failed to use that remedy. In such circumstances, the courts should not interfere. "Whether an employee has performed satisfactorily is to be determined by the employer and not by the courts." Percival v. General Motors (8thCir. 1976), 539 F.2d 1126, 1129; see also,Pierce

v. Ortho Pharmaceutical Corp. (N.J. 1980), 417 A.2d 505, 510-11. ThisCourt will not interferewith the Department of State Lands1 right to manage its affairs and hire employees who will perform their jobs so long as there is a standard for discipline and the Departmenthas abided by it. Summary judgment for the Department on Belcher's wrongful discharge claimwasproperly granted. It is clear from the record,the depositionof Belcher, and Belcher's own conduct that he knew his job was in jeopardy. The Department repeatedly attempted to help him until the situation was out of control. These particulars represent notice to Belcher that he had to improve or risk discharge. The Department recognized the duty to act in good faith and abided by it. Gates v. Life of Montana (Mont. 1983), 668P.2d 213, 215, 40 St.Rep. 1287, 1289. In Nordlund v. School District No. 14 (Mont. 19871, P.2d 

## , 44 St.Rep. 1183, 1186, the covenant of good faith and fair dealing was not breached where the employer school district gave the administrator proper notice his contract would not be renewed, and complied with statutory requirements dealing with school contracts set out in S 20-4-401,MCA. It was held that "because no breach of the employment contract occurred, it cannot be said that the

### schoolboard breached the implied covenantof good faith and fairdealing." Nordlund, 44 St.Rep. at 1186. 

### The case before this Court is similar. The Department of State Lands assigned Belcher to conduct specific duties. Belcher's work was not adequate and he was warned that it must improve or he would face the prospect of termination. His work performance did not improve and he was discharged. Because the Department followed administrative regulation in warning Belcher about his work, and attempted to assist him, it cannot be said that the Department violated the covenant of good faith and fair dealing when it discharged Belcher. Consequently,Belcher's claims for breach of the covenant of good faith is deficient and summary judgment for the Departmentwasproper. We affirm the judgmentof the DistrictCourt.

We concur: 

# /