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.

ct Court of theThirteenthJudicial District, it In and for the County of Stillwater, The Honorable Russell 

### K. Fillner,Judgepresiding.

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 Courtfsgrant 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 terminationwas 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 respondentswere 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 (theCounty). Kenyonwas employedpart-time

### by the law firm andpart-time by StillwaterCounty,and paid separatelyby each entity. In 1974,William Blenkner and C. Ed 

### Laws formed 

### apartnershipfor the practice of law. At that time, Blenkner was part-time County Attorney and Laws was Deputy County Attorney. Kenyon continued inherbifurcated dutiesbetween the firm and theCounty. 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 employeeswho werepaid solely by the firm, except forthose occasionswhen they worked on County business in Kenyon's absence. In 1988, Laws became full-time County Attorney. He informed Kenyon onMay 2, 1988, that the law firmwas dissolving and thathe 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 Blenknerbecame too ill toemployKenyon ona full-timebasis, Kenyon approached the county commissionersfor a jobwith the County that would provideherwith 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 theMontana Human Rights Commission,allegingage discriminationby the Stillwater CountyAttorney. 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. 3The complaintalleged: agediscriminationbased onher 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 fairdealing. Respondentsmoved for summary judgmentbased on g 2- 9-111, MCA, immunityregardingthewrongful discharge claimand the absence of any genuine issue of material fact as to Kenyon's age discrimination claim. The District Court granted summary judgment to respondents. Itconcluded, in pertinentpart, 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 4shifts 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 ofhisauthority; on thisbasis, 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 subjectto 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 courseand scopeof the employee's officialduties. Section 2- 9-305,

### MCA (1987). This is precisely the situationbefore 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 liabilitypurposes under Montana statutes. Furthermore, both Laws and the county commissioners agree that Laws was actingwithin 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 Laws1conduct 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 liabilityunder § 2-9-305(5), MCA

(1987). While the District Court reached the same result via 

### a different analysis,wewill uphold a court ruling if it is correct, regardlessof thereasons givenbelow for theresult. DistrictNo. 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 ingranting summary judgment on the age discrimination claim? Kenyonallegedagediscriminationunder theAge Discrimination 

### in Employment Act (ADEA)

## , 29 U.S.C. 5s 621 et seq., on the basis that shewas replaced by a youngerwoman. 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 thatKenyon failed topresent any facts relating her discharge to discriminationbased on age. The District Court concluded that respondents had provided facts showinga nondiscriminatoryreason forKenyon's termination-- poor work performance--and that Kenyon had failed to 

### respond with facts showing that respondents were motivated by a discriminatory

reason forher discharge. We agree. InMcDonnell Douglas Corp. v. Green (1973), 411U.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 allocationhas been adopted for, and applied to, claims arising under the ADEA. Steckl v. Motorola, Inc. (9thCir. 1983), 703 

### F.2d 392. Inthe context of a summary judgment motion in an ADEA action, theplaintiff 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. (9thCir. 1985)

## , 772F.2d 1453. 

### If thatburden 

### is met, the employer must rebut the inference of discrimination withevidence of legitimatenondiscriminatoryreasonstheplaintiff was not hired or was terminated; upon such a showing, the burden shifts back totheemployeetodemonstrate with specific factsthat the employer's explanation isa 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 youngerwoman. 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 forherpoorworkperformance. Respondentsalso offeredparts 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 Kenyon9sage discrimination claim.

Did the District Court err in considering whether Kenyon's termination was for good cause?

### As discussed above, respondentstmotion for summary judgment

was based on 5 2-9-111, MCA, immunity regarding the wrongful discharge claim and lack of genuine issues ofmaterial fact on the age discrimination claim. The District Court granted summary judgment to respondentson the age discriminationclaim,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 arguesthat the courterred 

### in ruling on good cause under the Wrongful Discharge from Employment Act. The District Courttsgood cause discussion and conclusion followed immediately upon its consideration of Lawsf long-term dissatisfactionwith Kenyonfswork performance in the context of the age discrimination claim. The court concluded that Laws' difficulties with Kenyonts work performance constituted good cause forher terminationunder 5 39-2-903(5), MCA. The District Court correctly noted that respondents' motion

was for summary judgment on all claims,notmerely 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 respondentstmotion and supporting arguments on the wrongful discharge claim differed significantly from those relating to the age discrimination claim. Respondents premised theirmotion on the former on entitlement to judgment 

### as

amatter of lawby virtue of 5 2-9-111,MCA, immunity;asdiscussed 9above, 

### 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 issuespresented to it. Custody of C.S.F. (1988), 232 Mont. 204, 208, 755 P.2d 578, 581. By granting summary judgment on thebasis of an issue not before it, the court effectively denied Kenyon notice and an opportunity to be heard on the issue. Herefordv. Hereford (1979), 183Mont. 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 ingranting summary judgmentonKenyon's wrongful discharge claim? Kenyon's

### wrongful dischargeclaimbased on a failureto follow the County's written personnel policies 

### was not addressed in respondents' motion for summary judgment. Respondents first mentioned 

### thepersonnel policies intheir final brief 

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

### immunity argument. Following theDistrictCourt'sgrantof summary judgmentbased partially on good cause, Kenyon sought to preserve her wrongful discharge claim based on a failure to follow written personnel 

### policiesby

### way of a

### motion to alter 

### or amend 

### thejudgment. Atthehearing 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 theparties moving for summary judgment,respondents bore the burden of establishing that no genuine issues ofmaterial 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 claimwas that theywere entitled to judgment asmatter 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,theydid notmeet their burden on this issue. It 

### is clear from the record of thehearing on Kenyon's motion to alter or amend, and from thepartiesgarguments 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 thevery 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 remainon Kenyonf s claims, they request thatwe affirm thegrantof summary judgment on the basis of the statutory immunity. Rule 14,M.R.App.P., provides that aparty may cross-appeal a ruling, order orproceeding of the trial court made against it and affecting its substantial rights. Thus, in order tohave the issue of statutory immunity reviewed by this Court, respondents were required to file a cross-appeal. Rouse v. Anaconda-Deer Lodge County (1991),250Mont. 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: