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No. 01-232
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 5

RUSSELL OFFERDAHL, Plaintiff and Appellant

v. STATE OF MONTANA, DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION, Defendants and Respondents. APPEAL FROM: District Court of the First Judicial District, In and for the County of Lewis and Clark, The Honorable Dorothy McCarter, Judge presiding.
COUNSEL OF RECORD: For Appellant: Tony P. Lucas; Seidlitz Law Office, Great Falls, Montana For Respondents: Katherine J. Orr, Agency Legal Services Bureau, Helena,
Montana Submitted on Briefs: September 20, 2001 Decided: January 15, 2002

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__________________________________________ Clerk

Chief Justice Karla M. Gray delivered the Opinion of the Court. ¶1 Russell Offerdahl appeals from the granting of summary judgment by the First Judicial District Court, Lewis and Clark County, to the State of Montana Department of Natural Resources and Conservation (Department) in this wrongful discharge action. Summary judgment was based on the court's determination that Offerdahl had failed to exhaust his administrative remedies before he filed his complaint. We affirm. ¶2 Offerdahl sets forth two issues on appeal: ¶3 1. Whether the District Court erred in granting the Department's motion for summary judgment based on Offerdahl's failure to exhaust administrative remedies. ¶4 2. Whether the District Court erred in denying Offerdahl's motion for summary judgment, which was based on the Department's failure to follow its personnel policy. BACKGROUND ¶5 Offerdahl was employed as a management program specialist in the Department's office in Conrad, Montana. On September 12, 1997, Offerdahl's supervisor informed him that, based on complaints that he had behaved inappropriately toward a subordinate employee and the Department's investigation of those complaints, the Departmentintended to terminate his employment. The supervisor directed Offerdahl to attend a pretermination meeting in Helena, Montana, on the following Monday, September 15, 1997. ¶6 The September 15 pre-termination meeting was held as scheduled, but Offerdahl did not attend. During the meeting, a person identifying himself as Offerdahl's physician left a telephone message that he had advised Offerdahl against attending the meeting. The Department terminated Offerdahl's employment and sent him a letter advising him of the grounds for its decision in a letter dated September 15, 1997. The letter further advised

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¶12 Our de novo standard of review of a summary judgment is the same standard used by a district court in considering a motion for summary judgment pursuant to Rule 56(c), M. R.Civ.P. That is, we consider whether there are any genuine issues of material fact and, if not, whether the moving party is entitled to judgment as a matter of law. Sherrard v. Prewett , 2001 MT 228, ¶ 7, 306 Mont. 511, ¶ 7, 36 P.3d 378, ¶ 7. ¶13 In granting summary judgment to the Department, the District Court concluded that Offerdahl's written grievance mailed October 7, 1997, was not timely filed within the 15 working days required by the grievance policy. As a result, it concluded Offerdahl had not exhausted his administrative remedies. On appeal, Offerdahl advances alternative theories regarding the timeliness of his grievance. ¶14 Offerdahl first states he told a Department employee during a telephone conversation the day after he received the letter informing him of his termination that he intended to grieve the termination. He contends this constituted the filing of a formal grievance. ¶15 Rule 2.21.8017(2), ARM, provides: (a) A formal grievance shall be filed in writing within 15 working days from the occurrence of the grievable event. . . . (b) A formal grievance shall state specifically the law, written rule, policy, and/or procedure violated; when the action occurred, and the remedy desired by the grievant. It shall be signed and dated by the grievant. Offerdahl's oral statement of intent to file a grievance meets none of the requirements of Rule 2.21.8017(2), ARM. It was not "filed" or in writing as required by subsection (a). Nor did it state the law, rule, policy, or procedure violated, when the violation occurred or the remedy sought. Finally, the oral statement clearly was not signed or dated by Offerdahl. We conclude Offerdahl's oral statement of intent to file a grievance does not constitute the filing of a formal grievance. ¶16 Offerdahl next contends his September 19 letter stating his intent "to follow the grievance procedure as directed by the Department in their discharge letter of September 15, 1997" constituted a formal grievance filing. He is incorrect. Although Rule 2.21.8017 (2), ARM, does not require that a formal grievance be filed on a specific form, it does require the inclusion of the elements discussed immediately above. The September 19

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¶20 Failure to exhaust administrative procedures is a complete bar to pursuing a claim under the Wrongful Discharge from Employment Act. Section 39-2-911(2), MCA. Consequently, we hold the District Court did not err in granting the Department's motion for summary judgment based on Offerdahl's failure to exhaust administrative remedies. ¶21 2. Did the District Court err in denying Offerdahl's motion for summary judgment, which was based on the Department's failure to follow its personnel policy? ¶22 Offerdahl contends the District Court erred in denying his motion for summary judgment, and the Department responds with a number of arguments regarding why this issue is not properly before us. One of those arguments is dispositive. ¶23 Rule 4, M.R.App.P., sets forth the requirements for taking an appeal. Specifically, Rule 4(c) mandates that the notice of appeal designate, among other things, "the judgment, order or part thereof appealed from." In the present case, Offerdahl's notice of appeal designates "the Decision and Order granting summary judgment to Defendant dated February 14, 2001." The notice of appeal does not state that the appeal is taken from the District Court's January 10, 2001 order denying Offerdahl's motion for summary judgment. As a result, this issue is not properly before us and we decline to address it further. ¶24 Affirmed. /S/ KARLA M. GRAY
We concur: /S/ JAMES C. NELSON /S/ TERRY N. TRIEWEILER /S/ PATRICIA COTTER /S/ JIM RICE

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