NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHARLES DANIEL SMITH, 

Plaintiff-Appellant, 

 v. 

CHARTER COMMUNICATIONS, INC., 

Defendant-Appellee.

No. 21-35149 

D.C. No. 

1:18-cv-00069-SPW-TJC 

MEMORANDUM*

Appeal from the United States District Court

for the District of Montana

Susan P. Watters, District Judge, Presiding

Argued and Submitted December 8, 2021

Submission Vacated and Deferred January 18, 2022

Resubmitted July 20, 2023

San Francisco, California

Before: GRABER and COLLINS, Circuit Judges, and CHOE-GROVES,**Judge.

Concurrence by Judge COLLINS.

Plaintiff Charles Daniel Smith alleges in this diversity action that Defendant 

Charter Communications, Inc., violated Montana law by wrongfully discharging 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Jennifer Choe-Groves, Judge for the United States 

Court of International Trade, sitting by designation.

FILED

JUL 24 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

him from employment. The district court granted summary judgment to 

Defendant, and Plaintiff timely appealed.

In a published order, we certified to the Montana Supreme Court the 

question whether, in a wrongful-discharge action, an employer may rely on a 

reason other than the reasons stated in a discharge letter. Smith v. Charter 

Commc’ns, Inc., 22 F.4th 1134, 1141 (9th Cir. 2022) (order). In Galbreath v. 

Golden Sunlight Mines, Inc., 890 P.2d 382 (Mont. 1995), the Montana Supreme 

Court held that, in defending against a wrongful-discharge claim, an employer may 

rely only on the reasons given in a letter. Id. at 385. But statutory amendments in 

1999 called into question the continuing vitality of the Galbreath rule, resulting in 

a split in both federal-court and state-court rulings on the question. See Smith, 22 

F.4th at 1139–41 (discussing the 1999 statutory amendments and relevant cases).

The Montana Supreme Court accepted our request for certification and 

issued a published opinion. Smith v. Charter Commc’ns, Inc., 529 P.3d 871 

(Mont. 2023). The court held that the statutory amendments did not affect the 

Galbreath rule. Id. at 877. The court summarized that, although “the Galbreath

Rule precludes admitting irrelevant evidence of collateral reasons for discharge 

other than the sole reason stated in the discharge letter, evidence offered to 

substantiate the reasons already given in the discharge letter is admissible.” Id. 

The parties have filed supplemental briefs to us on the effect of the Montana 
3 

Supreme Court’s decision. We now reverse the grant of summary judgment and 

remand for further proceedings.

Defendant fired Plaintiff in early 2018 and, in a corrective action report 

provided to Plaintiff, gave two reasons for the dismissal. Smith, 22 F.4th at 1136–

37. First, Defendant explained that Plaintiff allowed an employee to work as an 

electrician, in violation of the company’s policy. Id. The parties do not dispute 

that genuine issues of material fact preclude summary judgment as to that reason. 

Id. at 1137.

Second, Defendant asserted that Plaintiff failed to fulfill a 50% travel 

requirement in December 2017. Id. As we held initially, a genuine issue of 

material fact precludes summary judgment as to this specific reason as well. Id. at 

1138. In particular, both parties have presented conflicting evidence as to 

“whether Defendant had imposed a 50% travel requirement on Plaintiff during 

2017.” Id.

In sum, the Montana Supreme Court clarified that Defendant may defeat a 

wrongful-discharge action only for the reasons given in a discharge letter. Smith, 

529 P.3d at 877. Genuine issues of material fact exist as to both of the two reasons 

in the corrective action report. Accordingly, summary judgment was improper.

Defendant points out that the Montana Supreme Court emphasized that the 

Galbreath rule “does not restrict courts from considering evidence that supports or 
4 

substantiates the reason in the discharge letter by making its existence more 

probable than not.” Id. at 876. According to Defendant, evidence that Plaintiff 

was subject to a quarterly site-visit travel requirement and evidence that he failed 

to meet that requirement falls within the Montana Supreme Court’s broad 

description of relevant evidence. We need not decide that evidentiary question 

because summary judgment was inappropriate even assuming that the evidence is 

admissible.

The Montana Supreme Court explained that evidence is relevant if it tends to 

prove a “fact of consequence,” and “the proffered reason an employer provides in a 

termination letter is the ‘fact of consequence’ as to whether the employee was 

wrongfully discharged.” Id. at 875. The relevant fact of consequence here is the 

one specified in the corrective action report: Plaintiff’s failure to meet a 50%

travel requirement in December 2017. In order to justify the firing, then, 

Defendant must prove that Plaintiff was subject to a 50% travel requirement in 

December 2017.

Even assuming that the evidence concerning quarterly site visits is 

admissible because it tends to show that Defendant imposed a similar requirement 

in December 2017 (or that Plaintiff failed to meet that requirement), summary 

judgment remains inappropriate. The evidence concerning the quarterly site-visit 

requirement does not definitively prove that Plaintiff also was subject to a 50% 
5 

travel requirement in December—the “fact of consequence.” And, as noted, 

Defendant may not justify the firing on the ground that Plaintiff failed to meet a 

quarterly site-visit requirement, because that was not a reason specified in the 

corrective action report.

REVERSED AND REMANDED for further proceedings. Costs on 

appeal awarded to Plaintiff.
Smith v. Charter Communications, Inc., No. 21-35149

COLLINS, Circuit Judge, concurring:

I concur in the memorandum disposition, which correctly resolves this case 

in light of the Montana Supreme Court’s answer to our certified question. See

Smith v. Charter Commc’ns, Inc., 529 P.3d 871 (Mont. 2023). There is, however, 

one aspect of the Montana Supreme Court’s decision that I think warrants special 

comment. 

In our certification order, we requested that the Montana Supreme Court 

answer the following question of Montana law:

Whether, in an action for wrongful discharge pursuant to 

Montana Code Annotated section 39-2-904, an employer may 

defend a termination solely for the reasons given in a 

discharge letter, as the court held in Galbreath v. Golden 

Sunlight Mines, Inc., 270 Mont. 19, 890 P.2d 382 (1995), or 

whether the 1999 statutory amendments have superseded the 

Galbreath rule.

Smith v. Charter Commc’ns, Inc., 22 F.4th 1134, 1141 (9th Cir. 2022) (emphasis 

added). We explained that this issue was case-dispositive here because, if “good 

cause” for termination under Montana law could be based on reasons other than 

those given in Plaintiff Charles Daniel Smith’s discharge letter, we would affirm. 

Id. at 1137–39. That was true, we held, because the “record decisively establishes” 

good cause to terminate Smith on a ground that was not included in his termination 

letter. Id. at 1137. But if “good cause” is limited to the reasons set forth in the 

FILED

JUL 24 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

discharge letter, we would reverse, because both reasons given in Smith’s 

termination letter involve triable issues of fact. Id. at 1137–39. We therefore 

asked the Montana Supreme Court to tell us whether intervening statutory 

amendments had undermined Galbreath’s rule that only the reasons stated in a 

discharge letter may be invoked to establish “good cause” for a termination under 

Montana law. 

In response, the Montana Supreme Court stated that, “[b]ecause the 

Galbreath Rule is an evidentiary rule predicated on the Montana Rules of 

Evidence, it has not been superseded by the 1999 statutory amendments.” Smith, 

529 P.3d at 877 (emphasis added). In particular, the state high court held, Montana 

caselaw applying the Galbreath rule “reflects analyses grounded in [Montana 

Rules of Evidence] 401 and 402” about what counts as “relevant” evidence. Id. at 

875. From the perspective of a federal court, this is a somewhat unsatisfying 

answer to receive because, of course, the Montana Rules of Evidence generally do 

not apply in a diversity case in federal court. See Primiano v. Cook, 598 F.3d 558, 

563 (9th Cir. 2010) (noting the general rule that “[t]he question whether evidence 

is admissible” in a diversity case “is governed by federal law”). Instead, Federal 

Rule of Evidence 401 governs any determination in this case as to what evidence 

“has any tendency to make” a fact of consequence “more or less probable than it 

would be without the evidence.” See FED. R. EVID. 401(a). 
3

On the other hand, state substantive law does determine what counts as a 

fact “of consequence” in a diversity case. A leading treatise has explained this 

crucial distinction as follows:

Deciding whether evidence is relevant and hence admissible 

as to an issue governed by state law sometimes requires 

careful analysis to distinguish between materiality (whether 

the fact sought to be proved “is of consequence in determining 

the action”—an issue governed by the applicable state 

substantive law) and relevance (whether the evidence offered 

has “any tendency” to make the fact’s existence more or less 

probable—an issue governed by the federal standard defined 

in Rule 401 and not by state law).

19 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL 

PRACTICE AND PROCEDURE § 4512, at p.539 (3d ed. 2016) (“WRIGHT & MILLER”). 

Here, the Montana Supreme Court squarely held that, “[i]n wrongful discharge 

cases, this Court has determined that the proffered reason an employer provides in 

a termination letter is the ‘fact of consequence’ as to whether the employee was 

wrongfully discharged.” Smith, 529 P.3d at 875 (emphasis added) (citing, inter 

alia, Galbreath, 890 P.2d at 385). That holding is a substantive rule of Montana 

employment law, and its resolution in binding on us here.1

 Under Montana law, 

1 It is therefore irrelevant whether we are able to discern from the Montana 

Supreme Court’s opinion where that substantive rule comes from or what it is 

based on. Candidly, I am not sure that I know. As our certification order 

explained, this substantive rule of Montana law appeared to be derived from 

Swanson v. St. John’s Lutheran Hospital, 597 P.2d 702 (1979), which in turned 

derived it from since-repealed language in a statute. See Smith, 22 F.4th at 1139–
4

only the grounds for termination that are stated in the termination letter qualify as

the requisite “good cause.” Under that substantive rule, we must reverse the 

summary judgment here.

I think that it is important to note, however, that the Montana Supreme 

Court’s specification of the ultimate “fact of consequence” is the only aspect of 

that court’s decision here that is applicable in any further proceedings in this case. 

Much of the state high court’s decision in this matter is devoted to explaining that 

court’s views as to the “wide range of evidence” that may be said to make the 

grounds stated in the termination letter “more or less probable.” Smith, 529 P.3d at 

876. That discussion will certainly be of interest to the lower courts of Montana, 

but it is not controlling in federal court. “[W]hether the evidence offered has ‘any 

tendency’ to make” the grounds stated in the termination letter “more or less 

probable” is “an issue governed by the federal standard defined in Rule 401 and 

not by state law.” WRIGHT & MILLER, supra, § 4512, at p.539. 

Subject to these observations, I concur in the memorandum disposition 

reversing the district court’s judgment.

40. The Montana Supreme Court has now clarified that Galbreath’s substantive 

rule is not based on the statute cited in Swanson and that the rule “reflects analyses 

and applications of the Montana Rules of Evidence.” Smith, 529 P.3d at 876. 

From the perspective of a federal court that is not bound by the Montana Rules of 

Evidence but that is bound by Montana law’s specification of what counts as an 

ultimate fact of consequence, this answer appears somewhat question-begging.