NO. 83--277 INTHE SUPREME COURT OF THE STATE OF MONTANA 1984

PAT LINZ, Plaintiff and Appellant,

-vsCHAMPION INTERNATIONALCORPORATION, Defendantand Respondent.

APPEAL FROM: District Court of the Fourth JudicialDistrict, In and for the County ofMissoula, The Honorable JamesB. Wheelis, Judgepresiding.

COUNSEL OF RECORD:

ForAppellant: Boone,Karlberg & Haddon; Randy J. Cox argued, Missoula,Montana

For Respondent: Garlington,Lohn & Robinson;Robert E. Sheridan argued, Missoula,Montana

Submitted: December 15, 1983 Decided: January 31,1984

Filed: dhjl,.i; !$a4

ClerkMr. Chief Justice Frank I. Saswell delivered the Opinion of the Court. PatLinz appeals from a iudgment of the Missoula County District Court dismissing his complaint for severance pa.y benefits allegedly due from Champion International Corporation,respondent. We affirm. Linz was a salaried employee of the Intermountain Division of Hoerner Waldorf Corporation from 1962 to 1977. In 1977, Hoerner Waldorf was merged with Champion International Corporation. At the time of the merger, Linz was the data.processing manager for the Division. As of April 1, 1977, Champion adopted a severance pay policy for salaried employees of either corporation whose employment was terminated as a result of the merger. The pertinent part of the policy states: "Salaried employees of Hoerner Waldorf and other units of Champion International whose employment is terminated as a result of the merger shallbe entitled.to severan.ce pay based upon length of service.

### " Champion offered Linz employment as manager of the Rocky Mountain Terminal Center after the merger. The salary

was equal to that of his position with Hoerner Waldorf with

an increase scheduled for the second quarter of 1977. Li-nzfelt the position offered by Champion was not of the same status as his position with Hoerner Waldorf so he refused the offer. He did not receive severancepay. However, he did remain employed by Champion for a shortperiod of time, at double salary, to assist in the transition. He brought suit in 1.979 to recover severance pay, statutory penalty and attorney fees asserting that the merger caused termination of his position and, thus, he fell under the

severancepay policy.The trial was conducted on February 15, 1983, and the testimony was directed at whether the two positions were similar in status and function. Linz indicated his previous position entailed computer programming, systemdesign,analysis and impl-ementation,user services and data processing. He also testified that this position allowed a large amount of independence and involved some responsibility and management. Linz stated that the new position wou1.d require less system design, implementation and programming. He said that Champion officials told him that he would have to go to the company computer center in Ohio for this type of work. Linz also testified that the newposition would be less autonomous and allow less creativity. The court heard testimony from Richard Fettkether, a computer expert with twenty-five years of experience. He stated the new position would not include systems analysis, design or development. Further, he indicated that, as compared to the prior position, the new job did not offer any professional growth and demanded lesser skillsand abilities. Patricia Jeffries testified that she was employed by Hoerner Waldorf and turned down an offer from Champion to continue working. However, she received severancepay. She also stated that she refused Champion's offer because the new position did not involve large scale buying as did her job with HoernerWaldorf. WilliamNelson eventually took the job offered to Linz. Over Linz's obiection,he testified thathe had been involved in systems design and analysis, user services and data processing in wage, payroll, ledger accounting and accounts payable. He also said that when he took over the terminalcenterhe was responsible for management of the data processing for a certainpulpmill-. This involved systemsanalysis, design and programming. He also indicated that he was responsible for all persons who worked at the terminal center. It shouldbe noted that most of Nelson's testimony related to what he was doing presently, not what he was told about the position when interviewed or what the job originally involved. The District Court found the two positions substantially equivalent, and since Linz declined to accept the latter, he did not qualify for severancepay. Receipt of severance pay is not an unqualified right, ruled the court. Rather, only those employees whose jobs were terminated as a result of the merger and who were not offered similar positions could receive severance benefits. Linz did not show the positions were dissimilar; therefore, the District Court concluded he did not qualify for severance pay. From this ruling, Linz appeals and raises three issues for our consideration. 1. Did the District Court err by concluding that the appellant's employment had not been terminated, thereby disqualifyinghim from severancepay? 2. Did the District Court err in admitting testimony of William Nelson, the individual who took the job that Linz refused? 3. Is appellant entitled to the statutory penalty and attorney fees associatedwith the recovery of wages? Linz first argues that Champion's severancepay policy does not condition severancepay upon the lack of a comparable job offer from Champion. The merger caused termination of Linz's employment; thus, according to the policy, heshould receive severance pay benefits. Linz also contends that a severancepay policy establishesa unilateral contract between employer and employee onwhich employeeshave a right to rely notwithstanding any offers of employment. He relied on the contract between himself and Champion when he denied Champion's offer of employment. Champion claims that the severance pay plan envisioned termination of employment from the successor company as a prerequisite for severancepay. Champion also contends that the subsequentmodification of the employment relationshipby oral agreement between Linz and Champion to work several months more to assist with the transition precludes participation in the severancepay plan. The resolution of this issue depends upon whether, according to our interpretationof the severancepay policy, Linz's employment was terminated as a result of the merger. The policy simply provided that those whose employment is terminated as a result of themerger would receive severance pay based upon length of service. The District Court based its decision upon the fact that Linz was offered comparable employment. We find that this is not a proper basis upon which to decide the present case. Rather, thepolicy must be construed to determine if Linz was terminated because of the merger. We find thathe was not terminated by themerger and, thus,not entitled to severancepay. In Towne v. Towne (1945), 117Mont. 453, 159 P.2d 352, this Court held that the word "terminate"means "to put an end to; tomake to cease; to end," adoptingWebster's definition. 117Mont. at 465, 159 P.2d at 357. Black's Law DictionaryutilizesTowne a.sauthority for its definitionof theword "terminate." Black's Law Dictionary at 1641 (Rev. 4th Ed. 1968). In this case,Champion offered Linz a comparableposition in his city of residence. Further, his salarywas equal to that he received from his position with Hoerner Waldorf with an increase scheduled for the second quarter of 1977. From these facts and under the authority of Towne,

### we cannot find that Linz's employment was terminated. His position would not have come to an end nor cease. He would have continued in essential-lythe same capacitywith Champion,at the same pay, subject, however, to Champion's programs, policies and management. Thus, Linz was not entitled to

severance pay, and the District Court was correct in so holding. Sincewe have found that comparabilityof thepositions is not aproper basis for decision, the question in regard to William Nelson's testimony becomes irrelevant. Also, the issue regarding statutory penalty and attorney fees in connection with the recovery of wages becomes moot sincewe have held that Linz isnot entitled to severancepay. Affirmed. 

# 34-4, bp,w(ICd Chief JusticeWe concur:

JusticesMr. JusticeJohn C. Sheehy,dissenting:

I dissent. The majority, saying the employment policy must be strictly construed, construe it loosely. This kind of judicial contraspeak reminded the late United States Supreme Court Justice Tom Clark of Dante's Bernice, who, saying shewould never consent,consented. The employment policy does not lend itself to any constructionbeyond its ownwords: "Salaried employees. 

# . . whose employment is terminated as a result of the merger sha1.1 be entitled to severancepay based.upon the length of service. " The majority read into that clear paragraph two exceptions, (1) "unless a comparable job is offered by the employer", (2) "atthe samepay." Search as Imay, I cannot find those terms in the employer'spolicy. The employer d.idnot construe its own policy that way. It granted severance pay to Patricia Jeffries, a purchasing clerk who turned down a job as a purchasing clerk in the merged company. Now therewas strictconstruction. Pat Linz, who was data processing manager for Intermountain Lumber in Missoul-a, was offered a job by Champion as manager of the Rocky Mountain Terminal Center in Bonner. His jobwith Intermountain Lumberwas "terminatedas a result of the merger." His right to severancepay became absolute. Gaydos v. White Motor Corporation (Mich. 19741

### , 220N.W.2d 697. We should reverse, and remand for his rightful award of attorneys feesand costs.