No. 92-251 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

DAVID A. KREBS, 

Plaintiff and Appellant, 

v. 

RYAN OLDSMOBILE, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Russell K. Fillner, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

W. Scott Green, Attorney at Law, 

Billings, Montana 

For Respondent: 

Steven J. Lehman, Crowley, Haughey, Hanson, 

Toole & Dietrich, Billings, Montana 

Submitted on Briefs: September 10, 1992 

Decided: December 1, 1992 
Justice William E. Hunt, Sr., delivered the opinion of the Court. 

Plaintiff David A. Krebs brought a wrongful discharge from 

employment action in the ~istrict Court of the Thirteenth Judicial 

District, Yellowstone County, against defendant Ryan oldsmobile. 

Both parties brought motions for summary judgment. The District 

Court granted Ryan Oldsmobilels motion for summary judgment and 

denied Krebsl motion. We affirm in part and reverse in part. 

We phrase the issues before the Court as follows: 

1. Did the District Court err in granting Ryan Oldsmobilels 

motion for summary judgment? 

2. Did the District Court err in denying Krebsl motion for 

summary judgment? 

David A. Krebs was employed by Ryan Oldsrnobile from July 25, 

1989, until January 10, 1990, when he was discharged. On 

January 4, 1990, Krebs provided information to the Montana Criminal 

Investigation Bureau (MCIB) concerning alleged illegal drug 

activity by several employees of Ryan Oldsmobile. At this time, 

Xrebs agreed to continue to provide information on illegal activity 

at Ryan Oldsmobile and to attempt to purchase illegal drugs from 

the empfoyees of Ryan Oldsmobile who were allegedly selling drugs. 

There is no evidence indicating that Kmbs was to be paid for 

providing this information. 

On January 9, 1990, a vehicle owned by a known fugitive from 

justice was dropped of at Ryan Oldsmobile. Krebs called the MCIB 

and informed them of the vehicle. Sometime after Krebs made the 

call to MCIB, Dick Ryan of Ryan Oldsmobile pressed the redial 
button on the phone Krebs had used and learned that Krebs had 

called a law enforcement agency. 

The following day, January 10, 1990, Dick Ryan and Pat Ryan, 

along with several employees of Ryan Oldsmobile schemed to "set upt' 

Krebs. Pat Ryan announced that he was going to meet the fugitive 

at a local business in the vicinity of Ryan Oldsmobile. The 

purpose of this scheme was apparently to determine if Krebs would 

report to law enforcement information regarding this fictitious 

meeting with the fugitive. Krebs did phone the MCIB and informed 

them that Pat Ryan would be meeting at a nearby business 

establishment with the fugitive. An employee of Ryan Oldsmobile 

hit the redial button on the phone used by Krebs and learned that 

Krebs had again called a law enforcement agency. The employee 

informed Pat Ryan who immediately sought out Krebs and fired him. 

The scheme devised by Pat Ryan to confirm his belief that 

Krebs would report illegal activity if given the chance also got 

Mr. Ryan into trouble with law enforcement officials and federal 

prosecutors. Acting on this information, law enforcement personnel 

surrounded the local business establishment in an attempt to 

capture the fugitive. They did not capture anyone. 

On January 11, 1990, one day after he had been fired, Krebs 

called Pat Ryan. The telephone conversation was recorded and the 

following is a transcript of that conversation: 

Xrebs : How are you doing? Hey, I am wondering what 

the deal is here. What, you're so upset about, what is, 

you know, what's the story here, as far as, as me 

working? What's, what's up? 
Ryan: Well, number one is the misuse of the dealer 

plate, Dave. You know that you can't run dealer plates 

on your, on your truck. Number two, you're a [expletive 

deleted] snitch and we don't want you around here, 

basically. 

Krebs : How's that? I mean, I don't . . . 

Ryan : Every time we make a move, you call the 

[expletive deleted] FBI. We caught you [expletive 

deleted] redhanded twice. 

Krebs : I'm sorry, you're wrong. 

Ryan : You . . . (unintelligible) . . . Well, I know 

that I'm not wrong, Dave. No matter what you say, I know 

you're [expletive deleted] boldfaced lying. 

Krebs : Uh... 

Ryan: I set you up yesterday, partner. You went over 

to the service department, you made a phone call, we hit 

redial after you left and it was some federal crime 

bureau. The same thing happened the night before when 

Dick and Alisse set you up, Dave. You went into Harkin's 

office. After you left Dick hit redial, same [expletive 

deleted] group of people. It's funny how I walk out and 

the place is surrounded by FBI agents. I laughed my 

[expletive deleted] off, and there you were watching all 

the action. You come get your [expletive deleted] check, 

get your plate back and I need your key too. That's all 

I have to say to you. 

Krebs : Uh.. , 

Ryan: Tell . . . Tell Carl nice try. 

Krebs : That doesn't make . . 

Krebs brought a wrongful discharge from employment action on 

September 10, 1990. Ryan Oldsmobile alleged that Krebs did not get 

along with other employees, that he disrupted the operation, and 

that various other legitimate business reasons existed which 

justified Krebsl discharge. The District Court granted Ryan 
Oldsmobile's motion for summary judgment and denied Krebs' motion 

for summary judgment. 

I 

Did the District Court err in granting Ryan Oldsmobilels 

motion for summary judgment? 

A district court judge may grant summary judgment when: 

[Tlhe pleadings, depositions, answers to interrogatories, 

and admissions on file, together with the affidavits, if 

any, show that there are no genuine issues of material 

fact and that the moving party is entitled to judgment as 

a matter of law. 

Sherrodd, Inc. v. Morrison-Knudsen Co. (1991), 249 Mont. 282, 284, 

815 P.2d 1135, 1136; Rule 56(c), M.R.Civ.P. The party moving for 

summary judgment has the initial burden of showing that there is a 

complete absence of any genuine issue of material fact. To satisfy 

this burden, the movant must make a clear showing as to what the 

truth is so as to exclude any real doubt as to the existence of any 

genuine issue of material fact. Kober v. Stewart (1966) , 148 Mont. 

117, 417 P.2d 476. Summary judgment is never an appropriate 

substitute for a trial if a factual controversy exists. Reaves v. 

Reinbold (1980) , 189 Mont. 284, 615 P. 2d 896. If there is any 

doubt as to the propriety of a motion for summary judgment, it 

should be denied. Rogers v. Swingly (1983), 206 Mont. 306, 670 

P.2d 1386. Upon reviewing a grant or denial of a motion for 

summary judgment, this Court applies the same standard as the 

district court. 

Krebs brought an action claiming that his termination from 

employment violated the Montana Wrongful Discharge From Employment 
Act (Wrongful Discharge Act) found at 3 39-2-901 through -914, MCA. 

Section 39-2-904, MCA, of the Wrongful isc charge Act sets forth the 

elements of wrongful discharge, and provides that: 

A discharge is wrongful only if: 

(1) It was in retaliation for the employee's 

refusal to violate public policy or for reporting a 

violation of public policy; 

(2) The discharge was not for good cause and the 

employee had completedthe employer's probationary period 

of employment; or 

(3) The employer violated the express provisions of 

its own written personnel policy. 

The clear and unambiguous language of the statute provides 

that proof of any one of the three elements will support a wrongful 

discharge action. The elements of the statute applicable to Krebs' 

claim of wrongful discharge were correctly set out by the District 

Court in its order and memorandum granting summary judgment to Ryan 

Oldsmobile. The District Court stated that: 

In the present case, Krebs concedes that Ryan did 

not violate the express provisions of a written personnel 

policy since it had none, nor was he a probationary 

employee. Therefore, in order for Krebls [sic] to 

establish a claim under Montana's wrongful discharge act 

he must prove that his discharge was was [sic] not for 

good cause or that his discharge was in retaliation for 

reporting a violation of public policy. 

The District Court then determined that Krebs failed to 

present any genuine issues of material fact which would preclude 

summary judgment on Ryan Oldsmobile's contention that the discharge 

was for good cause. The District Court also granted summary 

judgment to Ryan Oldsmobile on the issue of whether Krebs' 

termination was in retaliation for reporting a violation of public 
policy. The court stated that although "a good faith reporting of 

a statutory violation which never occurs or is unfounded can serve 

as a basis for a wrongful discharge claim, summary judgment was 

appropriate in this situation. The court concluded that due to the 

nature of Xrebs' conduct in this case he was not protected by the 

Wrongful Discharge Act. The court added that even if Krebs' 

conduct was covered by the Wrongful Discharge Act, there was no 

question that he was not discharged in retaliation for reporting a 

violation of public policy. 

We will first consider the court's summary judgment order in 

favor of Ryan Oldsmobile on the issue of good cause. 

Section 39-2-903(5), MCA, provides that: 

"Good cause" means reasonable j ob-related grounds 

for dismissal based on a failure to satisfactorily 

perform job duties, disruption of the employer's 

operation, or other legitimate business reason. 

Ryan Oldsmobile presented evidence to the District Court 

which, if proven to be true, could support their contention that 

Krebs was discharged for good cause. However, Krebs also presented 

evidence tending to show that he was not discharged for good cause. 

The evidence offered by Krebs clearly presents a genuine issue of 

material fact which remains to be determined, thus precluding 

summary judgment on the issue of whether good cause existed for the 

discharge. 

The District Court then recognized that the Wrongful Discharge 

Act protects a good faith "whistle blower." However, the court 

stated that the Wrongful Discharge Act would not cover "a paid 
government agent (undercover police officer) whose sole purpose is 

to investigate and report public policy violations to their primary 

employer." The court concluded that Krebs' status was more akin to 

that of an undercover police officer, and therefore, the statute 

forbidding termination of an employee for the reporting of a 

violation of public policy did not apply to Krebs. We disagree. 

Krebs was clearly an employee as defined in 3 39-2-903(3), MCA. 

Krebs approached law enforcement in order to volunteer information. 

He was not sought out or placed by law enforcement. Krebs was not 

promised remuneration. Krebs provided information on only three 

occasions. Krebs' relationship with law enforcement lasted a total 

of six days. Finally, Krebs was paid a grand total of $40 for the 

information provided and this sum was paid several weeks after he 

was discharged. To hold that an individual who provides 

information concerning violations of public policy will not be 

covered by the Wrongful Discharge Act if they agree to cooperate, 

even minimally with law enforcement, would be to thwart the very 

purpose of the statute. The statute states that a discharge in 

retaliation for reporting a violation of public policy is a 

wrongful discharge. Krebs' conduct was protected under the 

Wrongful Discharge Act. 

In this case, the recorded telephone conversion, by itself, is 

sufficient to create a genuine issue of material fact as to whether 

Krebs was discharged in retaliation for reporting a violation of 

public policy. Summary judgment was not appropriate in light of 

the contested factual issues. 
Summary judgment is proper when there is no genuine issue of 

material fact as to whether an employee was discharged for good 

cause or in retaliation for reporting a violation of public policy. 

However, in this case there are genuine issues of material fact 

which remain to be decided by the trier of fact. The District 

Court's granting of summary judgment to Ryan Oldsmobile is 

reversed. 

I1 

Did the District Court err in denying Krebsl motion for 

summary judgment? 

Ryan Oldsmobile denies that Krebs was wrongfully discharged 

and argues that numerous reasons existed which justified Krebs' 

discharge. Ryan Oldsmobile has raised genuine issues of material 

fact which are in dispute relating to Krebsf discharge and which 

are clearly sufficient to survive Krebsf motion for summary 

judgment. The District Courtfs denial of Krebsf motion for summary 

judgment is affirmed. 

This matter is affirmed in part and reversed in part and 

remanded to the District Court for a trial to determine whether 

Krebs was discharged for "good causetf and for a determination of 

whether Krebs was discharged in retaliation for reporting a 

violation of public policy. 

Justice 
We concur: