NO. 91-318 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

ROBERTA KENYON, 

Plaintiff and Appellant, 

-vsSTILLWATER COUNTY, MONTANA, 

a political subdivision organized 

and existing under the laws of the 

State of Montana, and C. ED LAWS, 

Defendants 

APPEAL FROM: Distr 

snd Respondents. 

it ct Court of the Thirteenth Judicial District, 

In and for the County of Stillwater, 

The Honorable Russell K. Fillner, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Rosemary C. Boschert, Boschert Law Firm, Billings, 

Montana 

For Respondents: 

Stephen J. Lehman, Crowley, Haughey, Hanson, Toole 

& Dietrich, Billings, Montana 

g Submitted on Briefs: November 7, 1991 

Filed r- 
Justice Karla M. Gray delivered the Opinion of the Court. 

Roberta Kenyon appeals the Thirteenth Judicial District 

Courtfs grant of summary judgment to respondents on her claims of 

age discrimination, wrongful discharge and breach of the covenant 

of good faith and fair dealing. We affirm in part, reverse in 

part, and remand. 

The issues on appeal are: 

1. Did the District Court err in granting summary judgment 

to C. Ed Laws individually on the wrongful discharge claim? 

2 Did the District Court err in granting summary judgment 

on the age discrimination claim? 

3. Did the District Court err in considering whether 

Kenyon's termination was for good cause? 

4. Did the District Court err in granting summary judgment 

on Kenyon's wrongful discharge claim? 

5. Did the District Court err in determining that 

respondents were not immune pursuant to B 2-9-111, MCA? 

Factual and Procedural Backqround 

Roberta Kenyon was employed as a secretary by the law office 

of Blenkner and Blenkner in Columbus, Montana, on May 5, 1969. 

During her early employment, one of her employers, William 

Blenkner, was also the part-time County Attorney of Stillwater 

County, Montana (the County). Kenyon was employed part-time by the 

law firm and part-time by Stillwater County, and paid separately by 

each entity. 

In 1974, William Blenkner and C. Ed Laws formed a partnership 
for the practice of law. At that time, Blenkner was part-time 

County Attorney and Laws was Deputy County Attorney. Kenyon 

continued in her bifurcated duties between the firm and the County. 

Eventually, Blenkner and Laws switched roles, with Laws becoming 

County Attorney and Blenkner becoming Deputy County Attorney. 

By 1977, the County's legal workload increased to such an 

extent that Kenyon became a full-time county employee. Her salary 

and benefits were paid totally by the County. Consequently, the 

law firm employed other secretarial employees who were paid solely 

by the firm, except for those occasions when they worked on County 

business in Kenyon's absence. 

In 1988, Laws became full-time County Attorney. He informed 

Kenyon on May 2, 1988, that the law firm was dissolving and that he 

would employ Sandra Fox as his secretary; Kenyon would work for 

Blenkner in private practice. As a result, Kenyon's employment 

with the County ended June 30, 1988. After Blenkner became too ill 

to employ Kenyon on a full-time basis, Kenyon approached the county 

commissioners for a job with the County that would provide her with 

at least a 32-hour work week. The County offered Kenyon a parttime position, but she declined it. Thereafter, she worked on 

various projects for the County on a part-time basis. 

In the fall of 1988, Kenyon filed a preliminary inquiry with 

the Montana Human Rights Commission, alleging age discrimination by 

the Stillwater County Attorney. She subsequently filed a lawsuit 

against the County and Laws and the Human Rights Commission 

dismissed her administrative action. 

Kenyon's three count complaint was filed on April 27, 1989. 

3 
The complaint alleged: age discrimination based on her termination 

and replacement by a younger woman; wrongful discharge based on 

termination without just cause and in violation of written 

personnel policies; and breach of the covenant of good faith and 

fair dealing. Respondents moved for summary judgment based on g 2- 

9-111, MCA, immunity regarding the wrongful discharge claim and the 

absence of any genuine issue of material fact as to Kenyon's age 

discrimination claim. 

The District Court granted summary judgment to respondents. 

It concluded, in pertinent part, that: (1) g 2-9-111, MCA, immunity 

did not apply; (2) Laws was not individually liable; (3) Kenyon did 

not establish a prima facie case of age discrimination; and (4) 

Kenyon was terminated for good cause and, therefore, could not 

prevail on her wrongful discharge claim. Kenyon's subsequent 

Motion to Amend or Alter Judgment was denied and this appeal 

followed. 

Standard of Review 

Summary judgment is proper only when there are no genuine 

issues of material fact and the moving party is entitled to 

judgment as a matter of law. Cereck v. Albertson's, Inc. (1981), 

195 Mont. 409, 637 P.2d 509. "[A] party moving for summary 

judgment has the burden of showing a complete absence of any 

genuine issue as to all facts deemed material in light of the 

substantive principles that entitle that party to a judgment as a 

matter of law." Cereck, 195 Mont. at 411, 637 P.2d at 511 (citing 

cases). If the moving party meets its burden, then the burden 

4 
shifts to the non-moving party to show that issues of fact exist. 

First Security Bank of Bozeman v. Jones (1990), 243 Mont. 301, 794 

P.2d 679. 

Did the District Court err in granting summary judgment to C. Ed 

Laws individually on the wrongful discharge claim? 

As noted above, the District Court denied summary judgment to 

the County and Laws on their 5 2-9-111, MCA, immunity argument, 

concluding, as to Laws, that he was not an agent of the board of 

county commissioners. The court went on to determine that, as an 

elected officer of the County, Laws was an agent of the County 

acting within the scope of his authority; on this basis, it granted 

summary judgment to Laws individually on Kenyon's wrongful 

discharge claim. We agree with the grant of summary judgment to 

Laws, but for reasons different from those stated by the District 

Court. 

Governmental entities in Montana are subject to liability for 

their own wrongful conduct and that of their employees acting 

within the scope of their duties. Section 2-9-102, MCA (1987). 

For purposes of the liability statutes, elected county officials 

are employees of the county. Section 2-9-101, MCA (1987). Absent 

consideration of exceptions not at issue here, where an action is 

brought against a county based on actionable conduct by an 

employee, the employee is immune from individual liability for the 

conduct if the county acknowledges that the conduct arose out of 

the course and scope of the employee's official duties. Section 2- 

9-305, MCA (1987). This is precisely the situation before us. 
Kenyon's action is based on Laws' act of discharging her as 

his secretary when he became full-time County Attorney for 

Stillwater County. As an elected official, it is clear that Laws 

is an employee of the County for liability purposes under Montana 

statutes. Furthermore, both Laws and the county commissioners 

agree that Laws was acting within the scope of his official duties 

as County Attorney when he discharged Kenyon. 

The County was named as a defendant on the basis of its 

liability for Laws1 conduct within the scope of his duties under 

5 2-9-102, MCA (1987). Given the acknowledgement by the 

commissioners that the conduct on which the action is based arose 

out of the course and scope of Laws' official duties, it is clear 

that Laws himself is immune from liability under § 2-9-305(5), MCA 

(1987). 

While the District Court reached the same result via a 

different analysis, we will uphold a court ruling if it is correct, 

regardless of the reasons given below for the result. District No. 

55 v. Musselshell County (1990), 245 Mont. 525, 802 P.2d 1252. We 

hold, therefore, that the District Court did not err in granting 

summary judgment to C. Ed Laws individually on the wrongful 

discharge claim. 

Did the District Court err in granting summary judgment on the age 

discrimination claim? 

Kenyon alleged age discrimination under the Age Discrimination 

in Employment Act (ADEA) , 29 U.S.C. 5s 621 et seq., on the basis 

that she was replaced by a younger woman. She argues that summary 
judgment is inappropriate on her age discrimination claim because 

genuine issues of material and disputed fact exist as to the 

reasons for her termination. Respondents contend that no genuine 

issues of material fact exist in that Kenyon failed to present any 

facts relating her discharge to discrimination based on age. 

The District Court concluded that respondents had provided 

facts showing a nondiscriminatory reason for Kenyon's termination-- 

poor work performance--and that Kenyon had failed to respond with 

facts showing that respondents were motivated by a discriminatory 

reason for her discharge. We agree. 

In McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 93 

S.Ct. 1817, 36 L.Ed.2d 668, the United States Supreme Court 

allocated the parties' respective burdens in an action based on 

racial discrimination. That allocation has been adopted for, and 

applied to, claims arising under the ADEA. Steckl v. Motorola, 

Inc. (9th Cir. 1983), 703 F.2d 392. 

In the context of a summary judgment motion in an ADEA action, 

the plaintiff need only adduce facts which, if believed, support a 

reasonable inference that he or she was denied an employment 

opportunity because of discriminatory age criteria. Foster v. 

Arcata Assoc., Inc. (9th Cir. 1985) , 772 F. 2d 1453. If that burden 

is met, the employer must rebut the inference of discrimination 

with evidence of legitimate nondiscriminatory reasons the plaintiff 

was not hired or was terminated; upon such a showing, the burden 

shifts back to the employee to demonstrate with specific facts that 

the employer's explanation is a pretext. Foster, 772 F.2d at 1459, 

1460. 
In the present case, it is clear that Kenyon was in the 

protected age class, met the minimum job qualifications, and was 

discharged by Laws and replaced by a younger woman. Under Foster, 

this evidence is sufficient to support a reasonable inference of 

age discrimination. In support of their motion for summary 

judgment, respondents then had the burden of showing legitimate 

nondiscriminatory reasons for Kenyon's termination. 

LawsP affidavit established that he had had problems with 

Kenyon's work performance, number of absences, and time spent on 

nonprofessional duties over a long period of time. In addition, 

Laws provided documentation that Kenyon was on probation at one 

time for her poor work performance. Respondents also offered parts 

of Kenyon's deposition in which she admitted that Laws1 

dissatisfaction with her was apparent by his yelling at her on 

almost a daily basis. This evidence was sufficient to rebut the 

inference of discrimination raised by Kenyon. 

Kenyon subsequently failed to present specific facts, as 

required by Foster, indicating that Laws1 explanation for her 

dismissal was a pretext. She relied entirely on the conclusory 

assertions of discrimination contained in her affidavit. Kenyon 

having failed to raise a genuine issue of material fact as to her 

age discrimination claim, we hold that the ~istrict Court did not 

err in granting summary judgment to respondents on Kenyon9s age 

discrimination claim. 

Did the District Court err in considering whether Kenyon's 

termination was for good cause? 
As discussed above, respondentst motion for summary judgment 

was based on 5 2-9-111, MCA, immunity regarding the wrongful 

discharge claim and lack of genuine issues of material fact on the 

age discrimination claim. The District Court granted summary 

judgment to respondents on the age discrimination claim, concluded 

that immunity under 5 2-9-111, MCA, did not apply, and went on to 

grant summary judgment to Laws and the County on the wrongful 

discharge claim based on its determination that Kenyon was 

terminated for good cause as defined by § 39-2-903(5), MCA, and 

pursuant to 3 39-2-904, MCA. Kenyon argues that the court erred in 

ruling on good cause under the Wrongful Discharge from Employment 

Act. 

The District Courtts good cause discussion and conclusion 

followed immediately upon its consideration of Lawsf long-term 

dissatisfaction with Kenyonfs work performance in the context of 

the age discrimination claim. The court concluded that Laws' 

difficulties with Kenyonts work performance constituted good cause 

for her termination under 5 39-2-903(5), MCA. 

The District Court correctly noted that respondents' motion 

was for summary judgment on all claims, not merely partial summary 

judgment. It determined that Kenyon had the burden of raising a 

genuine issue of material fact in response to the motion. The 

record reflects, however, that respondentst motion and supporting 

arguments on the wrongful discharge claim differed significantly 

from those relating to the age discrimination claim. Respondents 

premised their motion on the former on entitlement to judgment as 

a matter of law by virtue of 5 2-9-111, MCA, immunity; as discussed 

9 
above, the motion on the latter was premised on an absence of 

genuine issues of material fact. 

The good cause issue as it related to the wrongful discharge 

claim was not raised or argued by either party. The court was 

bound by the issues presented to it. Custody of C.S.F. (1988), 232 

Mont. 204, 208, 755 P. 2d 578, 581. By granting summary judgment on 

the basis of an issue not before it, the court effectively denied 

Kenyon notice and an opportunity to be heard on the issue. 

Hereford v. Hereford (1979), 183 Mont. 104, 108, 598 P.2d 600, 602. 

We conclude that the District Court improperly considered good 

cause and hold, therefore, that it erred in granting summary 

judgment on the basis of good cause as defined in 5 39-2-903(5), 

MCA . 

IV. 

Did the ~istrict Court err in granting summary judgment on Kenyon's 

wrongful discharge claim? 

Kenyon's wrongful discharge claim based on a failure to follow 

the County's written personnel policies was not addressed in 

respondents' motion for summary judgment. Respondents first 

mentioned the personnel policies in their final brief in support of 

their motion for summary judgment and only in the context of their 

immunity argument. 

Following the District Court's grant of summary judgment based 

partially on good cause, Kenyon sought to preserve her wrongful 

discharge claim based on a failure to follow written personnel 

policies by way of a motion to alter or amend the judgment. At the 
hearing on the motion, Kenyon was denied the opportunity to enter 

into evidence written personnel policies of the County which she 

asserted were in force and effect at the time of her termination. 

As the parties moving for summary judgment, respondents bore 

the burden of establishing that no genuine issues of material fact 

existed and that they were entitled to a judgment as a matter of 

law on Kenyon's wrongful discharge claim. Their only argument on 

that claim was that they were entitled to judgment as matter of law 

by virtue of 5 2-9-111, MCA, immunity, The court rejected that 

argument. Respondents did not adequately raise or address the 

facts relating to the claim of wrongful discharge based on a 

failure to follow written personnel policies in their motion for 

summary judgment; therefore, they did not meet their burden on this 

issue. 

It is clear from the record of the hearing on Kenyon's motion 

to alter or amend, and from the partiesg arguments on appeal, that 

disputed issues of material fact exist relating to Kenyongs 

wrongful discharge claim. The parties argue the existence of 

different written personnel policies applicable to Kenyon's 

termination. This dispute goes to the very heart of her wrongful 

discharge claim, Due to the manner in which the proceedings 

unfolded in the District Court, this fundamental dispute has not 

been properly addressed by the parties or that court. 

We hold that the District Court erred in granting summary 

judgment on Kenyon's wrongful discharge claim. 
Did the District Court err in determining that respondents were not 

immune pursuant to 5 2-9-111, MCA? 

Respondents assert that the District Court erred in 

determining that they were not immune from suit under 5 2-9-111, 

MCA. In the event we find that genuine issues of material fact 

remain on Kenyonf s claims, they request that we affirm the grant of 

summary judgment on the basis of the statutory immunity. 

Rule 14, M.R.App.P., provides that a party may cross-appeal a 

ruling, order or proceeding of the trial court made against it and 

affecting its substantial rights. Thus, in order to have the issue 

of statutory immunity reviewed by this Court, respondents were 

required to file a cross-appeal. Rouse v. Anaconda-Deer Lodge 

County (1991), 250 Mont. 1, 817 P.2d 690. They did not do so. The 

immunity issue not being properly before us, we will not address 

it. 

Affirmed in part, reversed in part, and remanded for further 

proceedings consistent with this opinion. 

We concur: