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 theThirteenthJudicialDistrict, In and for the County of Yellowstone, The HonorableRussell K. Fillner, Judgepresiding.

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, 1992Justice 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 Oldsmobilelsmotion for summary judgment and denied Krebslmotion. 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 Krebslmotion 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,Krebsprovided informationto theMontana Criminal Investigation Bureau (MCIB) concerning alleged illegal drug activity by several employees of Ryan Oldsmobile. At this time, Xrebs agreed to continuetoprovide information

### on illegalactivity 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 redialbutton 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 "setupt' 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 theMCIB 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 enforcementpersonnel 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 conversationwas 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 onyour, 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 notwrong, Dave. No matter whatyou say, Iknow you're [expletivedeleted] boldfaced lying. Krebs: Uh... Ryan: I set youupyesterday,partner. Youwent over to the servicedepartment,youmade 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 setyou up, Dave. Youwent intoHarkin's office. After you left Dick hit redial, same [expletive deleted] group of people. It's funnyhow Iwalk out and the place is surrounded by FBI agents. I laughed my [expletivedeleted] off, and thereyouwere watching all the action. You come getyour [expletive deleted] check, get yourplate 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 thatKrebs 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 RyanOldsmobile'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:

[Tlhepleadings, depositions, answerstointerrogatories, and admissions on file,togetherwith the affidavits,if 

### any, show that there are no genuine issues of material factand that themoving party is entitled to judgmentas 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 judgmenthas the initial burden of showing that there is a complete absence of any genuine issue ofmaterial 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 ofmaterial fact. Koberv. Stewart (1966)

## , 148Mont. 117, 417 P.2d 476. Summary judgment is never 

### an appropriate substitute 

### fora trial if a factual controversy exists. Reavesv. 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 employmentviolated theMontana Wrongful Discharge From Employment

### Act (WrongfulDischargeAct) foundat 3 39-2-901 

### through -914, MCA. 

### Section 39-2-904, 

### MCA, of theWrongful 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 employeehad completedtheemployer's probationary period of employment; or (3) 

### Theemployer violatedtheexpressprovisionsof its own written personnel policy. The clear and unambiguous language of the statute provides that proof of any one of the three elementswill supportawrongful dischargeaction. The elements of the statute applicabletoKrebs' claim ofwrongful discharge were correctly set out by the District Court in its orderand memorandum granting summary judgmenttoRyan Oldsmobile. The District Court stated that: In the present case, Krebs concedes that Ryan did notviolate theexpress provisions of awrittenpersonnel policy since it had none, nor was he 

### a probationary employee. Therefore, in order for Krebls [sic] to establish a claimunderMontana's wrongful dischargeact 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 onRyanOldsmobile'scontention that thedischarge

was for good cause. The District Court also granted summary judgment to Ryan Oldsmobile on the issue of whether Krebs' terminationwas in retaliation for reporting a violation ofpublicpolicy. The court stated that although "a good faith reporting of

a statutoryviolation which never occurs or 

### is unfounded can serve

as a basis for a wrongful discharge claim, summary judgment was appropriate in this situation. The courtconcluded 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 thathe 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 job-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 Krebswas discharged forgood cause. However,Krebs alsopresented evidence tending to show that hewas 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 ofwhether good cause existed for the discharge. TheDistrict Court thenrecognized that theWrongful Discharge Act protects a good faith "whistle blower." However, the court stated that the Wrongful Discharge Act would not cover "a 

### paidgovernment agent (undercover police officer) whose solepurpose is to investigateand reportpublicpolicy violations to theirprimary employer." The court concluded that Krebs' statuswasmore 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 lawenforcement inorder 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' relationshipwith lawenforcement 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 DischargeAct. In this case,the recorded telephone conversion,by itself, is sufficient to createa genuine issue of material factas towhether 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 ofpublicpolicy. 

### 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 Krebsfdischarge and which

are clearly sufficient to survive Krebsf motion for summary judgment. The District Courtfs denial ofKrebsfmotion 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.

JusticeWe concur: