No

No. 98-065

IN THE SUPREME COURT OF THE STATE OF MONTANA

1998 MT 193

JERRY McGILLEN,

Plaintiff and Appellant,

v.

PLUM CREEK TIMBER COMPANY,

Defendant and Respondent.

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APPEAL FROM: District Court of the Eleventh Judicial 

District,

In and for the County of Flathead,

The Honorable Katherine R. Curtis, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Dean K. Knapton, Attorney at Law, Kalispell, Montana

For Respondent:

Todd A. Hammer; Warden, Christiansen, Johnson & Berg, PLLP;

Kalispell, Montana

Submitted on Briefs: April 30, 1998

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Decided: August 10, 1998

Filed:

__________________________________________

Clerk

Justice Jim Regnier delivered the opinion of the Court.

¶ The plaintiff, Jerry McGillen, brought this action in the Eleventh Judicial District 

Court, Flathead County, alleging that he was wrongfully discharged by defendant 

Plum Creek Manufacturing, Inc. McGillen appeals from the jury's verdict in favor of 

Plum Creek. We affirm.

¶ We restate the issues on appeal as follows:

¶ 1. Did the District Court err when it denied McGillen's motion for a new trial on 

the grounds of jury misconduct?

¶ 2. Did the District Court err by denying McGillen's cross-motion for summary 

judgment?

¶ 3. Did the District Court abuse its discretion by not allowing witnesses to give 

opinions on whether the appellant's conduct constituted a violation of company 

policy?

¶ 4. Did the District Court abuse its discretion in allowing evidence that the appellant 

was discharged for reasons other than the one set forth in the discharge letter?

FACTUAL AND PROCEDURAL BACKGROUND

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¶ Jerry McGillen worked at Plum Creek Manufacturing in Columbia Falls, 

Montana, for approximately fifteen years. Sometime in May 1995, McGillen placed 

an ad in the Mountain Trader, a weekly trade publication. The ad falsely stated that 

it was placed by John DeReu, McGillen's work supervisor. The ad appeared in the 

May 26, 1995, issue of the Mountain Trader and advertised the sale of a truck and 

indicated that interested persons should call late in the evening. The ad included 

DeReu's name and telephone number. McGillen had no permission or authority from 

DeReu to place the ad.

¶ Prior to the placement of the ad, DeReu had reported McGillen to Don Luce for 

sleeping on the job, and McGillen was suspended for that act. Luce is the plant 

manager at the Columbia Falls sawmill and is DeReu's supervisor and boss.

¶ At first, when confronted by his supervisors, McGillen denied any involvement 

with the ad. Later, he changed his position and admitted to placing the ad when 

Plum Creek hired an investigator. 

¶ After reviewing the incident, Plum Creek terminated McGillen on June 7, 1995. 

Plum Creek found that McGillen had violated company policy. Specifically, Plum 

Creek found that McGillen's activities in placing the ad violated a section of the 

company's rules concerning intimidation. The Company Rules state, in pertinent 

part:

Violation of Company Rules will form the basis for immediate disciplinary 

action, which may include suspension or discharged [sic] depending on the 

severity of the offense. . . . Please be sure to review these rules with your 

supervisor when reporting to work.

. . . .

l. Intimidation and/or molestation of any individual or group of employees. 

These rules had been explained to McGillen before he placed the ad in the paper. In fact, 

he had signed a statement stating that he understood these rules on October 10, 1978, 

when he started his employment with Plum Creek.

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¶ The reasons for McGillen's termination were given in a letter, dated June 7, 1995, 

from Don Luce. The discharge letter states, in relevant part:

The ad you placed in the Mountain Trader, dated May 26, 1995, in John 

DeReu's name soliciting late evening phone calls was definitely harassment 

and is not only against company policy but is against the law.

Since you have admitted to the offense neither the DeReus or Plum Creek will 

file charges in this incident unless further harassment of any kind follows.

Due to the seriousness of the violation your employment at Plum Creek is 

being terminated as of today, June 7, 1995.

¶ On July 28, 1995, McGillen filed suit in the Eleventh Judicial District Court, 

Flathead County, for wrongful discharge. Both parties moved for summary 

judgment. Plum Creek argued that because McGillen violated company policy, it had 

good cause to fire him and, therefore, was entitled to summary judgment. McGillen 

argued that if there were no questions of fact, he should be entitled to summary 

judgment because Plum Creek did not have a legitimate business reason to fire him. 

The District Court denied both motions, ruling that whether McGillen's conduct 

violated Plum Creek's rules and constituted good cause for discharge was a question 

of fact for a jury to decide. A jury trial resulted in a verdict that McGillen had not 

been wrongfully discharged. McGillen appeals from the judgment and from his 

pretrial and post-trial motions. We affirm.

ISSUE 1 

¶ Did the District Court err when it denied McGillen's motion for a new trial on the 

grounds of jury misconduct?

¶ Section 25-11-102, MCA, enumerates the grounds upon which a new trial may be 

granted:

The former verdict or other decision may be vacated and a new trial granted 

on the application of the party aggrieved for any of the following causes 

materially affecting the substantial rights of such party:

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(1) irregularity in the proceedings of the . . . jury . . . by which either party 

was prevented from having a fair trial;

(2) misconduct of the jury.

In this case, McGillen moved for a new trial on the grounds of jury misconduct pursuant 

to subsections (1) and (2) of the statute.

¶ The decision to grant or deny a new trial is within the sound discretion of the trial 

judge and will not be disturbed absent a showing of manifest abuse of that discretion. 

Geiger v. Sherrodd, Inc. (1993), 262 Mont. 505, 508, 866 P.2d 1106, 1108; Henrichs v. 

Todd (1990), 245 Mont. 286, 291, 800 P.2d 710, 713. We will give considerable weight 

to the determination of the district court because it is in the best position to observe 

the jurors and determine the potential for prejudice when allegations of jury 

misconduct are raised, and the district court is properly vested with significant 

latitude when ruling on these matters. See State v. Gollehon (1993), 262 Mont. 293, 

303, 864 P.2d 1257, 1263-64.

¶ McGillen claims jury misconduct or irregularity in the proceedings because a juror 

shared information with the other jurors that he knew one of Plum Creek's 

witnesses, Don Luce. The juror, James Trout, did not state in voir dire that he knew 

Luce. During the jury deliberations, the court received a note from Trout indicating 

"[t]he question has come up that I have met Mr. Luce on occasion during my career 

as a Banker in the Valley. Other jurors have stated that this results in an impairmant 

[sic] of my judgement in this matter." Specifically, Trout told the other jurors that 

Luce was not intimidating.

¶ McGillen made a motion for a mistrial. The court denied the motion. The court 

also did not allow his requests to interview the entire jury panel. However, the court 

did ask Trout if he could make a fair and impartial decision in this matter based 

strictly upon the evidence as presented during the trial, to which he answered, 

"Absolutely." After the verdict was rendered, McGillen filed a post-trial motion for a 

new trial, again raising his complaints regarding possible jury misconduct. This 

motion was accompanied by affidavits of two jurors. On October 7, 1997, the District 

Court denied McGillen's motion for a new trial.

¶ On appeal, McGillen argues that the District Court should have granted him a new 

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trial pursuant to § 25-11-102, MCA, on the grounds of jury misconduct by Trout in 

failing to acknowledge his relationship with Luce during voir dire. McGillen 

contends Trout became a witness, giving testimony about Luce, and that created an 

irregularity in the trial by bringing evidence into deliberations that was not 

presented at trial. 

¶ The District Court denied McGillen's motion for a new trial for three reasons. 

First, the court stated that the information allegedly shared by Trout was not 

relevant to the issues before the jury. The central issue before the jury was whether 

McGillen's conduct was intimidating to DeReu. The issue was not whether Luce was 

intimidating to McGillen. Second, the court found that the juror affidavits set forth 

internal, rather than external, influences on the jury and, therefore, are inadmissible 

pursuant to Rule 606(b), M.R.Evid. Third, the court noted that the jury took a vote 

prior to Trout's comment which was 8-4 in favor of Plum Creek. When the verdict 

was announced, this vote was not changed as a result of the shared information. The 

court noted that the votes serve to rebut any contention that McGillen was 

prejudiced by Trout's conduct as a member of the jury.

¶ We agree with the District Court that Trout's admission during jury deliberations 

was an internal, rather than external, influence on the jury's verdict. Rule 606(b), M.

R.Evid., sets forth the limited circumstances when a court may receive an affidavit 

regarding a jury's deliberations in order to impeach a verdict. Rule 606(b), M.R.

Evid., states:

Inquiry into validity of verdict or indictment. Upon an inquiry into the 

validity of a verdict or indictment, a juror may not testify as to any matter or 

statement occurring during the course of the jury's deliberations or to the 

effect of anything upon that or any other juror's mind or emotions as 

influencing the juror to assent or dissent from the verdict or indictment or 

concerning the juror's mental processes in connection therewith. Nor may a 

juror's affidavit or evidence of any statement by the juror concerning a matter 

about which the juror would be precluded from testifying be received for 

these purposes. 

However, as an exception to this subdivision, a juror may testify and an 

affidavit or evidence of any kind be received as to any matter or statement 

concerning only the following questions, whether occurring during the course 

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of the jury's deliberations or not: (1) whether extraneous prejudicial 

information was improperly brought to the jury's attention; or (2) whether any 

outside influence was brought to bear upon any juror; or (3) whether any juror 

has been induced to assent to any general or special verdict, or finding on any 

question submitted to them by the court, by a resort to the determination of 

chance. 

¶ In Harry v. Elderkin (1981), 196 Mont. 1, 7-8, 637 P.2d 809, 813, we set forth when 

jury affidavits may be used to impeach a jury verdict. Harry states:

The cases on the use of juror affidavits fall into two major categories: 1) those 

involving external influence on the jury and 2) those involving internal 

influence on the jury. Where external influence is exerted on the jury or where 

extraneous prejudicial information is brought to the jury's attention, juror 

affidavits can be the basis for overturning the judgment if either party was 

thereby deprived of a fair trial. On the other hand, juror affidavits may not be 

used to impeach the verdict based upon internal influences on the jury, such as 

a mistake of evidence or misapprehension of the law. 

Harry, 196 Mont. at 7-8, 637 P.2d at 813 (citations omitted). Moreover, knowledge and 

information shared by one juror to another or others is not an extraneous influence. State 

v. Hage (1993), 258 Mont. 498, 508-09, 853 P.2d 1251, 1257.

¶ McGillen's contention regarding Trout's comment about Luce does not fall within 

the three exceptions to Rule 606(b), M.R.Evid. It was merely a statement regarding 

Trout's personal knowledge of one of the witnesses. The affidavits submitted by 

McGillen do not show that the jurors were influenced or prejudiced by Trout in 

reaching their decision. Thus, Trout's comment was an internal influence and, 

therefore, cannot be used to impeach the jury verdict.

¶ As stated above, a district court has wide latitude in determining whether jury 

misconduct occurred. In this case, the District Court conducted an inquiry to 

determine whether Trout could sit on the jury, despite having knowledge of one of 

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Plum Creek's witnesses, Don Luce. The court determined that Trout could sit as a 

fair and impartial juror.

¶ We conclude that the District Court did not abuse its discretion when it ruled that 

McGillen could not impeach the jury verdict through affidavits because there were 

no external prejudicial influences on the jury. Accordingly, we hold that the court 

did not manifestly abuse its discretion in denying McGillen's motion for a new trial.

ISSUE 2 

¶ Did the District Court err by denying McGillen's cross-motion for summary 

judgment?

¶ McGillen argues that the District Court erred by not ruling as a matter of law that 

his discharge was wrongful. The standard of review of a district court's conclusions 

of law is whether the court's interpretation of the law is correct. Carbon County v. 

Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.

¶ McGillen contends that his use of a lawful product cannot be a legitimate business 

reason for an employee discharge. In other words, he asserts that placing a fictitious 

ad in the Mountain Trader, on his own time outside of work, in the name of his 

supervisor, was merely a practical joke and could not be used as a reason for Plum 

Creek to discharge him. McGillen relies on § 39-2-903(5), MCA, which states, in part, 

that "[t]he legal use of a lawful product by an individual off the employer's premises 

during nonworking hours is not a legitimate business reason."

¶ In the District Court, both parties moved for summary judgment. Plum Creek 

argued that because McGillen admitted that he had violated company policy, it had 

good cause to fire him and, thus, was entitled to summary judgment. In response, 

McGillen argued that although he had admitted to a violation of the company rules, 

there remained a question of fact as to whether the rule or policy was fair, job 

related, and in furtherance of a legitimate business purpose. McGillen further 

argued that there was also an issue of material fact regarding whether his conduct 

amounted to harassment or intimidation under the company rules. In conclusion, he 

stated if the court believed there were no issues of fact, then it should rule as a matter 

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of law that his discharge was wrongful.

¶ The District Court denied both parties' motions for summary judgment. The court 

stated:

[McGillen] is correct that [Plum Creek] is bound by the reasons set forth in 

the [discharge] letter, and there seem to be issues of fact regarding whether 

the application of the rule prohibiting harassment or intimidation to 

[McGillen]'s conduct in this case constitutes 'good cause' within the meaning 

of the Wrongful Discharge from Employment Act. . . . Granted that 

[McGillen] has acknowledged violating a company policy, and granted that 

the 'fairness' of the policy is not the issue, the Court cannot rule as a matter of 

law that the application of the company rule to the [McGillen]'s conduct 

constitutes 'reasonable job-related grounds for dismissal based on a failure to 

satisfactorily perform job duties . . . or other legitimate business reason.' 

Section 39-2-903(5), M.C.A. 

(Citations omitted.)

¶ The District Court did not specifically rule on McGillen's argument that he should 

not have been discharged because his conduct involved the "legal use of a lawful 

product." Instead, it ruled that there was a genuine issue of material fact as to 

whether his conduct constituted reasonable grounds for dismissal.

¶ McGillen raised the issue again when the parties were settling jury instructions. He 

requested the court to instruct the jury that "[l]egal use of a lawful product by an 

individual off the employee's premises during non-working hours is not a legitimate 

business reason." The District Court rejected the argument again. The court noted 

that "lawful product," as defined in § 39-2-313, MCA, means a product that is legally 

consumed, and includes food, beverages, and tobacco. The court found that the 

placing of a newspaper ad did not fall within the definition.

¶ We agree with the District Court that it could not rule as a matter of law that 

McGillen's conduct in placing a fictitious ad in his supervisor's name was a 

legitimate use of a lawful product that would preclude Plum Creek from firing him. 

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The purpose of § 39-2-903(5), MCA, is to protect an employee from discharge for the 

use of a legal product, such as alcohol or tobacco, off the employer's premises.

¶ We conclude that the District Court did not err in denying McGillen's cross-motion 

for summary judgment. The court was correct in ruling that whether it was 

reasonable for Plum Creek to apply the rule prohibiting harassment or intimidation 

to McGillen's conduct and fire him was an issue for the jury to decide. 

ISSUE 3

¶ Did the District Court abuse its discretion by not allowing witnesses to give 

opinions on whether the appellant's conduct constituted a violation of company 

policy?

¶ McGillen argues that the District Court abused its discretion by not allowing 

McGillen's witnesses to testify about whether or not the firing was justified. We 

review evidentiary rulings by the district court to determine whether the district 

court abused its discretion. State v. Passama (1993), 261 Mont. 338, 341, 863 P.2d 378, 

380. The district court has broad discretion to determine whether evidence is 

relevant and admissible, and absent a showing of abuse of discretion, the trial court's 

determination will not be overturned. Passama, 261 Mont. at 341, 863 P.2d at 380. 

¶ The District Court granted Plum Creek's motion in limine to prevent witnesses 

from testifying and giving their personal opinions on matters which were ultimately 

legal issues in this case. Specifically, the court did not allow witnesses to give their 

opinions regarding whether they thought the firing was justified. 

¶ McGillen contends that he would have offered testimony from fellow employees as 

to whether his firing was justified. McGillen asserts that this testimony would have 

been relevant to prove that the company rules would not have been interpreted by 

employees to mean that they would have been fired for placing false advertisements. 

Also, he contends that this testimony would have been helpful to the jury in order to 

determine whether taking out a false advertisement would have been perceived as a 

violation of company policy.

¶ The ultimate question before the jury was whether McGillen was wrongfully 

discharged by Plum Creek for violating its company rules. We determine that 

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witnesses' personal opinions about whether or not they thought McGillen's conduct 

constituted a violation of company policy would be irrelevant under Rule 701, M.R.

Evid. This was a matter for the jury to decide. It also serves no purpose because 

McGillen admitted in his deposition and at trial that he had violated the company's 

rules. Thus, we conclude that the District Court did not abuse its discretion by 

precluding this type of testimony.

ISSUE 4

¶ Did the District Court abuse its discretion in allowing evidence that the appellant 

was discharged for reasons other than the one set forth in the discharge letter?

¶ McGillen claims that the District Court erred by not granting his motion to limit 

testimony to the fictitious ad, the sole reason given in the letter of discharge, and 

allowing testimony regarding an earlier incident in which Plum Creek suspended 

McGillen for sleeping on the job. As stated above, we review evidentiary rulings by 

the district court to determine whether the district court abused its discretion. 

Passama, 261 Mont. at 341, 863 P.2d at 380.

¶ McGillen made a motion in limine to prohibit references to other reasons for the 

discharge which are not contained in the June 7, 1995, letter. Specifically, McGillen 

wanted to prohibit any testimony involving when he was disciplined by Plum Creek 

for sleeping on the job, and whether he had ever lied about placing the fictitious ad. 

Plum Creek responded that evidence of the sleeping incident was necessary for the 

jury to put the stated reason for the discharge in context.

¶ The District Court granted McGillen's motion in limine in part and denied it in 

part. The court ruled that:

The stated reason for the discharge was harassment in violation of the law and 

company policy. Clearly, under Galbreath v. Golden Sunlight Mines, 270 

Mont. 19 (1995), [Plum Creek] cannot offer evidence suggesting that 

[McGillen] was discharged for other reasons. However, reference to the 

incident in which [McGillen] was apparently disciplined for sleeping on the 

job, which apparently immediately preceded the placing of the ad for which 

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he was discharged, is necessary for the jury to assess the stated reason for the 

discharge.

However, McGillen argues that the District Court did not follow Galbreath v. Golden 

Sunlight Mines, Inc. (1995), 270 Mont. 19, 890 P.2d 386, because Plum Creek presented 

reasons for his discharge beyond the reason given in the letter of discharge.

¶ A review of the trial transcript shows that Plum Creek offered testimony that 

McGillen was fired for placing the fictitious ad. Any testimony offered regarding 

McGillen being suspended for the sleeping on the job incident was included with 

testimony that it was not the reason for his discharge. In fact, the only reason that 

Plum Creek offered for McGillen's discharge at trial was the placing of the fictitious 

ad.

¶ Furthermore, the District Court gave the jury Instruction No. 9 which stated: 

In a wrongful discharge action the only reason for discharge that can be 

considered is the reason set forth in the discharge letter. Evidence of lying by 

the Plaintiff is not justification for the discharge, but may be considered by 

you for other purposes.

McGillen did not object to this instruction before the case was given to the jury.

¶ We determine that the District Court properly limited testimony regarding the 

reasons for McGillen's discharge to those stated in the discharge letter. Any 

testimony offered with respect to McGillen being disciplined for sleeping on the job 

was relevant and, therefore, admissible, to tell the jury a possible motive for 

McGillen placing the ad in the first place. 

We conclude that the District Court did not abuse its discretion in allowing any evidence 

or testimony that McGillen was discharged for reasons other than the one set forth in the 

discharge letter.

¶ Affirmed.

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/S/ JIM REGNIER 

We Concur:

/S/ J. A. TURNAGE

/S/ WILLIAM E. HUNT, SR.

/S/ JAMES C. NELSON

Justice W. William Leaphart, specially concurring.

¶47 I concur with the Court's resolution of Issues 2, 3 and 4 and I specially concur as to 

Issue 1 which addresses the District Court's denial of McGillen's motion for a new trial on 

the grounds of jury misconduct. McGillen claims jury misconduct or irregularity in the 

proceedings because juror Trout shared information with other jurors that he knew one of 

Plum Creek's witnesses, Don Luce. Specifically, juror Trout told the other jurors that Luce 

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was not intimidating.

¶48 For the reasons set forth in my specially concurring opinion in State v. Kelman 

(1996), 276 Mont. 253, 263, 915 P.2d 854, 860, I do not agree with the Court's conclusion 

that Trout's sharing of this information was an internal rather than an external influence on 

the jury's verdict. However, since the issue before the jury was whether McGillen's 

conduct was intimidating, not whether Luce was intimidating to McGillen, the external 

influence, if any, was not relevant to the jury's deliberations. Furthermore, as noted by the 

Court, the affidavits submitted by McGillen do not show that the jurors were influenced or 

prejudiced by Trout in reaching their decision. Accordingly, I would hold that any error 

resulting from the jury misconduct was harmless.

/S/ W. WILLIAM LEAPHART

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