No. 88-513 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

ROGER THOMPSON, 

Plaintiff and Appellant, 

-vs - 

BOARD OF TRUSTEES OF SCHOOL DISTRICT NO. 2, 

YELLOWSTONE COUNTY, MONTANA, said board 

consisting of the following; MAURICE R. 

COLBERG, JR.; FRANK J. KOLENDICH; HEWES D. 

AGNEW; ELLEN ALWEIS; KAREN TRASK DOOLEN; JIM 

LOGAN, DOUGI,AS R. SIPES; and MIKE YOUNG, 

Defendants and Respondents. 

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: 

Charles F. Moses; Moses Law Firm, Billings, Montana 

For Respondent: 

I _ P- Laurence R. Martin and Sol Lovan; Felt & Martin, 

-J Billings, Montana 

.--, 

q- ' 

Submitted on Briefs: April 27, 1989 

Decided: June 7, 1989 

Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

This suit arises out of the nonrenewal of plaintiff's 

teaching contract with School District No. 2 in Billings, 

Montana. Plaintiff appealed the Board of Trustees' decision 

to terminate his employment and the reasons given for 

nonrenewal therein to the District Court for the Thirteenth 

Judicial District, Yellowstone County. The District Court 

granted summary judgment in favor of the School District on 

plaintiff's claims for tort liability, punitive damages, 

violation of due process, and breach of the implied covenant 

of good faith and fair dealing. The court granted the plaintiff's cross-motion for summary judgment based on the insufficiency of the reason given for nonrenewal. The court 

remanded the case back to the School District for a more 

sufficient statement of reasons. On appeal, the plaintiff 

challenges the adequacy of the District Court's remedy, 

alleging that there has been a breach of the employment 

contract and that he is entitled to monetary damages. Based 

on our holding that the plaintiff is not entitled to pursue 

this remedv, we affirm the District Court's granting of 

summary judgment in favor of the School District and vacate 

the Order of remand. 

We reframe the issues as follows: 

Where a nontenure teacher has received notice of termination under § 20-4-206, MCA 1985, and challenges the sufficiency of the reasons given for termination, to what extent 

has the teacher the following remedies: 

(1) Remedies under the grievance procedure of the 

Professional Agreement or union contract between the School 

Board and the Teacher's Association. 

(2) The right of appeal under the nontenure teacher's 

severance policv contained in the union contract providing 
for appeal of the notification to the School Board; and 

subsequent rights to appeal to the County Superintendent of 

School, and then to the State Superintendent, and finally to 

the court system under the Montana Administrative Procedure 

Act. 

(3) Right to proceed in District Court seeking a recovery of damages suffered as a claimed result of the insufficiency of the notice of termination given to the teacher by 

the school district. 

Section 20-4-206, MCA 1985, with regard to nontenure 

teacher notification, provides in pertinent part as follows: 

Notification of nontenure teacher reelection -- 

acceptance -- termination and statement of reasons. 

(1) The trustees shall provide written notice by 

April 15 to all nontenure teachers who have been 

reelected. Any nontenure teacher who does not 

receive notice of reelection or termination shall 

be automatically reelected for the ensuing school 

fiscal year. 

(3) When the trustees notify a nontenure teacher 

of termination, the teacher may within 10 days 

after receipt of such notice make written request 

of the trustees for a statement in writing of the 

reasons for termination of employment. Within 10 

days after receipt of the request, the trustees 

shall furnish such statement to the teacher. 

The pertinent portion of the Professional Agreement, or 

union contract, between the Board of Trustees of School 

District No. 2 and the Billings Education Association are as 

follows: 

Article IV, Section 7. - Non-Tenure Teacher Severance - 

-- Policy: 
Subd. 1. Every non-tenured teacher shall be 

entitled to the following rights if his/her 

contract i.s not being renewed. 

(a) The teacher shall be notified by 

the Superintendent, in writing, that 

his or her contract will not be 

renewed pursuant to Montana 

statutes. 

fb) The notice shall state the specific 

reasons for non-renewal. 

(cl The teacher may appeal his/her 

non-renewal to the Board of Trustees 

or a committee thereof, by May 1. 

The Board, or its committee, shall 

reach a decision within twenty (20) 

days of the submit-tal of the appeal. 

- Subd. 2. The decision of the Board, or its 

committee, shall not be subiect to the grievance procedure as outlined in Article XIT. 

Article XIL, 

Section 4. Adjustment of Grievance, Time %imitation 

and Waiver: 

The parties shall attempt to adjust all grievances 

which may arise during the course of employment of 

any teacher within the School District in the 

following manner: Tf a grievant believes there has 

been a grievance, he/she shall discuss the matter 

with the responsible administrator in an attempt to 

arrive at a satisfactory solution. If the griev-- 

ance is not resolved as a result of this meeting, 

the grievance shall be reduced to writing, setting 

forth the facts and the specific provisions of the 

Agreement allegedly violated, and the particular 

relief sought. An alleged grievance must be presented in writing within twenty (20) days of the 

occurrence of the event, or within twenty (20) days 

of the time that the grievant through the use of 

diligence should have known of the alleged 

grievance. 

Subd. 1. Level I: The written grievance, 

siqned by the grievant involved must be presented to the responsible administrator within 

t.he time limits provided in Section 4. The 
responsible administrator shall meet with the 

grievant within seven (7) days after receipt 

of the written grievance and give a written 

answer to the grievance within five (5) days 

of the meeting. The Grievant has five (5) 

days in which to either accept the answer or 

appeal it in writing to the next level. 

Subd. 2. Level 11: If the grievance has not 

been resolved in Level I, it may then be 

processed to Level I1 by presenting the written grievance to the Superintendent. The 

Superintendent or his designee shall meet 

within ten (10) days after receipt of the 

written appeal to discuss the problem with the 

grievant. Within seven (?) days of the meeting the Superintendent or his designee shall 

submit his written answer to the grievant. 

Subd. 3 Level LIL: If the grievance remains 

unresolved at the conclusion of Level 11, i.t 

may he submitted for binding arbitration at 

the discretion of the Associati-on provided 

written notice of the request for submission 

to arbitration is delivered to the Superinten-, 

dent's Office within ten (10) days after the 

date of receipt of the decision at level TT. 

The case has a complex procedural history which unfortunately extends over a period starting in 1983. Mr. Thompson 

was employed by School District No. 2! as the choir director 

at Billings West High School. He served in that capacitv for 

three years, each year being offered a one-year contract. Tn 

March, 1983, the Board of Trustees voted not to renew Mr. 

Thompson's contract for the 1983-84 school year. That contract would have granted him tenure rights. 

Mr. Thompson was notified of the Board's deci-sion by 

letter dated March 30, 1983 which said: 

In accordance with Section 20-4-206, of the 

School Laws of Montana, Annotated, (copy attached!, 

you are provided notice of termination of your 

contract with School District No. 2, at the close 

of the 1982-83 school year. 
In keeping with the philosophy of School 

District No. 2 of retaining only the best teachers 

for tenure, School District No. 2 would be better 

served by another teacher in this position. 

On March 31, 1983, Mr. Thompson responded by letter 

which stated: 

In accordance with Section 20-4-206, MCA, I am 

requesting the reason or reasons for the board's 

decision to terminate my employment with the 

district. 

Also, in consideration with the board's statement 

at the March 29, 1983 meeting, I am requesting a 

hearing before the board to address this matter. 

In response to the foregoing letter, the Board sent a letter 

to Mr. Thompson dated April 6, 1983, which stated: 

This responds to your letter of March 31, 1983. 

You have already been notified of the termination 

of your contract with School District No. 2, by 

letter from Dr. Poore, dated March 30, 1983. This 

letter included the reasons for the termination of 

your employment. 

Pursuant to your request, you may appeal your 

nonrenewal to the Roard of Trustees at the Board 

meeting to be held at 4:00 p.m., Monday, April 11, 

1983, at the Administration Building. This appeal 

is granted you under the provisions of Article IV, 

Section 7, of the Professional Agreement between 

the Board of Trustees and the Billings Education 

Association. 

On April 11, 1983, Mr. Thompson and his counsel appeared 

hefore the Board of Trustees. Mr. Thompson's counsel presented argument but was not allowed to call any witnesses. 

The Roard characterized the proceeding as an "appeal" rather 

than a "hearing" and therefore did not allow the presentation 

of witness testimony. Fol..l.owing the presentation by Mr. 

Thompson's counsel, the Roard voted to affirm its prior 

decision not to renew Mr. Thompson's contract. 
In a letter dated April 11, 1983, addressed to Mr. 

Thompson, he was advised as follows: 

You have been afforded an appeal OF the termination 

of your employment with School District No. 2 at 

the cl.ose of the 1982/83 school year, pursuant to 

Article IV, Section 7 of the Professional Agreement 

between the Roard of Trust-ees of SchooJ- District 

No. 2, and the Billings Education Association. 

This is to notify you of the Board's decision, 

denying your appeal, and affirming the prior c-leci--. 

sion of the Board of Trustees, to terminate your 

contract and employment with School District No. ?, 

at the close of the 1982/83 school year. 

The Board did not advise Mr. Thompson orally or by the above 

letter of any additional reasons in support of the 

nonrenewal. 

By notice dated April 19, 1985, Mr. Thompson appealed to 

the County Superintendent of Schools. By order denyina 

appeal dated April 28, 1983, the County Superintendent concluded that the appeal had failed to meet the requirements 

set forth in the Administrative Rules of Montana in Failing 

to set forth a proper caption, names and addresses, clear and 

concise statement of the matters asserted., a statement indicating that the petitioner has a contested case and that the 

County Superintendent has proper jurisdiction together with 

references to the particular sections of the statutes and 

rules involved. The County Superintendent concluded that he 

did not consider this a contested case and that he lacked 

jurisdiction. No appeal was taken by Mr. Thompson from that 

order. As a result, there was no further attempt to follow 

the procedure outlined in such cases as Throssell v. Board of 

Trustees of Gallatin County (Mont. 1988), 757 P.2d 348, 45 

St.Rep. 1228, and Yanzick v. School District No. 23, Lake 

County (1982), 196 Mont. 375, 641 P.2d 431. This was the 

extent of the appeal procedure exercised under the 
administrative law approach as outlined in the above cited 

cases. 

In addition to proceeding under the appellate approach 

as previously described, Mr. Thompson also proceeded under 

the grievance provisions of the union contract, and in particular Article XII, Section 4 which is previously set forth. 

On April 5, 1983, Mr. Thompson filed a grievance with the 

School District under the provisions of Article XII, Section 

4 of the union contract. The grievance was made on the 

regular Grievance Report form used by the Billings School 

District and was signed by the Billings Education Association 

representative. The key portions of that form stated: 

Date grievance occurred: March 29, 1983 

Statement of facts: Teacher was terminated on 

March 29, 1983. 

Inaccurate evaluations are a factor in this 

termination. 

Specific Provisions of Agreement Alleqedly Violated: Article XV - Sections 1, 2, 5, 6 

Particular Relief Sought: Evaluation dated March 1, 

1983, is to be removed from his file and grievant 

is to be offered a contract for the 1983-84 school 

year. 

In support of the School District's motion for summary judgment, the uncontradicted affidavit of the Director of Personnel of the School District established that the grievance was 

denied through Level I and I1 administratj-ve hearings. As 

previously set forth, those levels provide at Level I for the 

presentation of the grievance to the responsihle administrator who is required to meet with the grievant, and denied the 

written grievance. A.t Level IT, the grievance was presented 

to the Superintendent, and such Superintendent also denied 

the grievance. The next choice under the contract for Mr. 
Thompson was to submit that grievance for binding arbitration 

at Level 111. The affidavit establishes that the Billings 

Education Association, Mr. Thompson's representative, dropped 

its attempts to move the grievance to binding arbitration. 

As a result, the record establishes that Mr. Thompson failed 

to proceed through to binding arbitration and thereby obtain 

a final binding arbitration determination of his grievance. 

In considering the grievance requirements under the 

union contract, it is important to keep in mind that Mr. 

Thompson's grievance as stated in the Report. Form was limited 

to his argument that the evaluation dated March 1, 1983, was 

inaccurate and should he removed from the file and that he 

should be offered a contract for the next school year. At 

that point, Mr. Thompson made no suggestion that the reasons 

given in the notice of nonrenewal were insufficient. This is 

significant because he now urges that the insufficiency of 

such notice should be a proper basis for the award of damages 

in the District Court action which was brought against t.he 

School District. 

The next procedural aspect is the filing of the complaint by Mr. Thompson against the School District. On June 

16, 1983, after all the above-described procedures were 

followed, Mr. Thompson filed his complaint in the District 

Court of Yellowstone County. In that complaint he alleged 

that the defendants had negligently, wrongfully and unlawfully terminated his employment and that the School Board did 

not provide standards or guidelines for termination, that his 

termination was prejudged, that the District violated the 

open meeting law, that such termination did not represent the 

independent and informed judgment of each member, and that 

the notice was defective "in that it did not set forth the 

specific reasons for his termination as required by law." 

The compl aint cl aimed damages by hei-no deprived of empl o\pent 
and terminated without right. EF-L.er 'she riling of variouc 

pleadinvs, a motion for partial sumr11cir;7 judgment was filed by 

the plaint_;-ff 5x16 the rlefenclant also filed motions for surrunary judgment. By order c7,ate6 Parch 1 , 1.988, the District 

Court granted summary juc-Igment to both the plaintiff and the 

d f? Ft~:f\~lh r*? , -r . n 9rantlny the motion of the plaintif' vhorrip~rn 

for summary iudgment as to the suf5cj~rrcy or the nntjce, the 

Order sf-ate?: 

?. That the P7ajn-f-i .'T'F C:rcss-Potion for Summary 

Judgment crf the a13eged insufficiency of +he ztatu-- 

tory notice requireme~ts is hereby GRANTED. This 

issue is REMANDED to the school board of the Fillings ''! $1 Sc:!lc\c-I. ristrict No. 2, Yellowstone Cour,-. 

ty, Wontana, ant: saic-1 school hoard is direct& to 

provide the Plainti "F wF+h speci fic reasors fcr 

rc.r.--renewal of his contract within thirty days o' 

the date hereoT. The Coilrt recogr?Fzes that this 

cause arose over five vears aqo and that the school 

boar?. rr.&y no ionger be able to prov:i-de ?he P1.a.intiff with speciLic reasons 'or non-renewal due tc 

changes 05 members or. the schocl board, and chang6-s 

of personnc! , lost or misplaced records a~cl the 

1;-ke. T-F the hoard is 1117abie to comply with the 

Caul-kl:l: Crcleu due to such reasons, it may certify 

such +'act to the Court within the tine herei~ 

before provide6 and serve a copy of such certification to counsel for the Plaintif+. On the other 

ha-nc!, i f +he board is able to comply by providing 

PI ainti FF with spw:.; l(* reZscns for non-renewal and 

ceutifiricatiorr oF such compliance is rnac7e together 

with proof of service ofsuch ccrtifi-cation on 

counsel for Plaintiff, then judgne~lt may he entered 

accnrei rclv. 

The Crcler c;T +he Dist-rict Court also granted the de5eendan+s1 

~no-lion for summary judgmer~t. "n 1- he "ollowj-ng respects : regardin9 the nonapplicahilif-y of +he fi7orltana Opcn Feeting law; 

regardS rlq i hc. derendants ' claim that the i ndivFc?ual.ly named 

Trustees are immune Trom !!c?hi! j tj7; 2s tcl plainti'q's clajrn 

for imposition of pu~itive clamages as to both the Scho~l 

Pi 1- r -I T i lit. re; detendants ' motion i-egariJ;nc the 
failure to state a claim for bread1 01 the covenant of good 

faith an< fair dealirg: and d~Tenc7arlf s' mtion lor the failure to st-ate a claim for wrongful discharge. 

The ~~C'ect oi the toregoing Order on summary iudgmert 

v7cs to remand to the School Gistrici- 5 11 order to provide Mr. 

Thompson with notice OF reascjr~s vrhir.11 net the requirement or' 

Bridyer Eciuca'r-i o~i Association v. Board of Trustees, Carbon 

County (19841, 203 P:o~t. 21, 678 P.22 059. r. Tho~rpson 

challenged the adequacy of the remedy by motion to zlter or 

amencl cvhicl- C!-IP Fistrict Court denied. In his appeal Ilr, 

Thompson contends that the Schc~n: District was obligated to 

Zurnish specific reaso~s fcr trir thet he was not 

affc)~-cit.cl a nieaninqful appeal or a hearing, that there has 

bec11 breach of contract .mil khzt he is eritjtles to darvages. 

The key element is that Mr. Thompson contends he is entitled 

to damaqes whi(-.!? fla~rc~ eF3tctively been denied him by the 

sun juc7qr11ent: he District Court and the 

above-described remanc?. 

T 

L. 

PXPV".EI~LrJ:,C, ITNDER GRTEVANCE PROCEDITFF 

OF UNION CONTRACT 

II his Grievance &port Mr. Thcmpscn referred to his 

ter~iliation on March 29, 1983. IIe thcn clsined that inaccurate eva1uet.ions were a factor in that deterniniltion and 

asked that the e~raluatsorl Sated biarch 1, 1983, be removed 

from his file. fEis c)tm G~rievance Report contra2jcts the 

basic assertion ir! the complaint filed in the Districtf Ccurt 

where he complains that the notice was insufficient. 

1~~~1 conc,l1~dc "hzt the grievance procedure under the urinn 

contract is the binding metl?c?c7 or cirisposj-ng of the issues 

ra: .;eF 11nc'er the qrievance ~rocer?~irc-, F'e therefore conclude 

t-hat Ylr - I~I could not have procee?ec' ;ntc Disl-rj-ct 
Court on the same issues raised in the grievance procedure. 

Under the agreement negotiated by the Billings Education 

Association with the School District, the final decision in 

the grievance process is a binding arbitration. Because Mr. 

Thompson chose not to proceed to binding arbitration, that 

terminated any further rights with regardt to the claimed 

grievance. 

As we review Article IV, Section 7 of the union contract, we conclude that the issue of the sufficiency of the 

notice of termination properly could have been included in 

the Grievance Report form and handled through the gri-evance 

procedure. Had he properly proceeded in that manner, his 

right to receive a specific statement of reason for 

nonrenewal would have been satisfied through the grievance 

procedure. 

In this instance he chose not to proceed to arbitration 

as he apparently concluded that he preferred to make a claim 

for damages in District Court. We hold that the proper 

method for obtaining a statement of specific reasons for 

nonrenewal by Mr. Thompson was set forth in the grievance 

provisions of the union contract. We further hold that by 

failing to follow these contract provisions, Mr. Thompson has 

lost his right to obtain specific reasons for nonrenewal. We 

therefore conclude that that the District Court improperly 

remanded to the School District. 

11. 

RIGHT OF APPEAL UNDER CONTRACT 

SEVERANCE POLICY 

In his complaint in District Court Mr. Thompson argues 

that the notice did not contain specific reasons for 

nonrenewal. In making these contentions he overlooks the 

procedure which he previously followed. We pointed out that 
Mr. Thompson appealed his nonrenewal to the Board of Trustees 

of the School District. Pursuant to the contract, he was 

given an appellate hearing and the decision by the School 

Board was affirmed. At that point Mr. Thompson appealed to 

the County Superintendent of Schools. As previously described, the County Superintendent declined to rule on his 

appeal. Under the administrative procedure outlined in 

Throssell and Yanzick, Mr. Thompson was required to appeal to 

the State Superintendent and in the event of an adverse 

ruling, only then did he have the right to proceed in District Court, following the procedure under the Administrative 

Procedure Act. As a result, his remedies would have been 

limited to recovery appropriate under the union contract and 

the Act. 

We hold that by failing to follow the administ-rative 

procedure outlined in the mentioned two cases, Mr. Thompson 

gave up his right to a final determination under the administrative procedure required in Montana. We therefore conclude 

that he no longer had a claim for nonrenewal of his contract. 

111. 

nISTRICT COURT CLAIM OF DAMAGES 

Mr. Thompson argues extensively that he has a right to 

recover all damages which he has suffered in all- of these 

proceedings, including references to the idea of reinstatement, and most important, to monetary damages. As Mr. Thompson summarized in his own brief, he claims he is entitled to 

damages for the breach by the School District of his contract. We conclude that he does not have such a right under 

the facts of this case. 

As previously outlined, Mr. Thompson had the opportunity 

of grieving the sufficiency of the notice itself under the 

grievance procedures. He chose not to go to binding 
arbitration. As a result, he no longer had a right to contend! in the Pi-strip:. Cnllv: ~~c{-kon that the notice itself was - insufficient. -n a sirnjlar way, if Mr. Thompscn believerthat he properl;: chnn7d have been retained as a non+c$~~~ire 

teacher, the ~rocecl~re tc be foilowed was that previously 

nizt-linrcy ur.6er Fart I1 of this opinion. As he Fai7ecl to 

foT-?.ow the appropriate adnlinistra t 5 vt. proceclure , he is barred 

"ram rnak?'r.cr the sarre con?-~n' ;c)lt:. In '-hc present proceedings 

before the District Court. 

ICe thereCc,rt~ hci1(7 It there were no further remedLcs 

available to Mr. Thompscr~ ur1~3er 1.lle complaint which he fj!~?. 

in the 0:stri ct Court; anc? ccnc!vde that tht2 l?.'s-l rict Court 

11 or qranted sumrnarv judarn~rt on the varj ous theories 

requested by the School District. 

P'e vacate tbe rerranc! by the E;n: I-ic:: Cc,urt to the School 

~i~t~: ci a:, 'here is no requirement for such further consideration by the School Dlst+rict u.nc'~r the unicr ccnt:rii(--'. 

PS th thzt f:>:ception we affirm the District Cclurf-. 

%e Concur: ,A 

Mr. Justice John C. Sheehy did not participate in this 

decision.