Baumgart v. State

• Decision Date: 03 September 2014
• Docket Number: No. DA 13–0564.,DA 13–0564.
• Citation: 332 P.3d 225,376 Mont. 1
• Parties: Elizabeth “Betsy” BAUMGART, Plaintiff and Appellant, v. STATE of Montana, DEPT. OF COMMERCE, and Does 2–15, inclusive, Defendants and Appellees.
• Court: Montana Supreme Court

376 Mont. 1

332 P.3d 225

Elizabeth “Betsy” BAUMGART, Plaintiff and Appellant,

v.STATE of Montana, DEPT. OF COMMERCE, and Does 2–15, inclusive, Defendants and Appellees.

No. DA 13–0564.

Supreme Court of Montana.

Submitted on Briefs April 16, 2014.

Decided July 22, 2014.

Rehearing Denied Sept. 3, 2014.

For Appellant: Michael J. San Souci, San Souci Law Office, Bozeman, Montana, Timothy C. Kelly, Attorney at Law, Emigrant, Montana.

For Appellee: W. Anderson Forsythe, Moulton Bellingham PC, Billings, Montana.

Justice PATRICIA COTTER delivered the Opinion of the Court.

¶ 1 Appellant Elizabeth “Betsy” Baumgart, the former administrator of the Montana Tourism and Promotion Division of the Department of Commerce (DOC or the Department), appeals the First Judicial District Court's orders dated April 22 and July 12, 2013, granting partial summary judgment to DOC, dismissing Baumgart's claims against DOC director Dore Schwinden, and affirming DOC's decision to terminate her employment. We affirm.

ISSUES

¶ 2 A restatement of Baumgart's issues on appeal is:

¶ 3 Did the District Court err in granting DOC's motions for partial summary judgment as they pertained to: (1) political affiliation discrimination; (2) individual claims against DOC director Dore Schwinden; (3) whether the Department had good cause to terminate her employment; and (4) whether the Department violated express provisions of its written personnel policies pertaining to progressive discipline?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 4 In 2002, Betsy Baumgart was appointed by then-Governor Judy Martz to be the administrator of the Montana Tourism and Promotion Division of DOC (Tourism Division or Division). As administrator of the Tourism Division, Baumgart was charged with developing and funding programs designed to promote Montana as a general vacation destination as well as a destination for the production of motion pictures and television commercials. In her appointed capacity, Baumgart managed an annual budget of between $8 and $15 million and supervised 25–30 employees. A significant portion of Baumgart's duties involved monitoring fiscal operations, fund balances, and accounting transactions to ensure compliance with applicable law and effective use of the Division's funds. As administrator, Baumgart was advised early in her tenure that any unused and accumulated Tourism Division funds could be permanently “swept” by the Legislature into the State's general fund budget. The Legislature had taken such action in 2003 shortly after Baumgart had become administrator.

¶ 5 During the majority of Baumgart's tenure as administrator, Tony Preite was the Department's director and Baumgart's immediate supervisor. Baumgart consistently received satisfactory or better performance evaluations from 2002 until her termination in 2010. In 2010, immediately after Preite retired, then-Governor Brian Schweitzer appointed Dore Schwinden as DOC director. On August 20, 2010, just days after Schwinden's arrival, he terminated Baumgart's employment citing multiple reasons, including a lack of management competencies and sufficient understanding of the Division's budget and the budgeting process. Baumgart subsequently filed an administrative grievance against DOC and Schwinden, claiming her termination was politically motivated because she was a Republican and Schwinden, as well as Schweitzer, were Democrats.

¶ 6 A grievance hearing was held on October 26 and 27, 2010. On November 15, 2010, the hearing examiner issued her non-binding Findings of Fact and Recommendation. She determined that the Department was justified in discharging Baumgart for failure to adequately manage the Division's budget. The examiner further concluded that the remaining reasons the Department put forth for terminating Baumgart were without merit.

¶ 7 On November 16, 2010, Schwinden notified Baumgart by certified letter that DOC had adopted the hearing examiner's recommendation and her termination was final. Schwinden informed Baumgart that she had the right to appeal her termination to the state district court in accordance with § 2–4–702, MCA. However, Baumgart filed a formal charge with the Montana Human Rights Bureau (HRB) alleging violations of her fundamental rights under the Montana Human Rights Act (HRA), § 49–2–308, MCA, to be free from politically-motivated discrimination. She also claimed that under the Governmental Code of Fair Practices (GCFP), § 49–3–201, MCA, she was entitled to be retained and evaluated on the basis of merit, without regard to political affiliation. She asserted that DOC failed to comply with the GCFP and that its reason for discharging her was a pretext for discrimination. HRB subsequently issued a right-to-sue notice.

¶ 8 Upon receipt of HRB's right-to-sue notice in May 2011, Baumgart initiated this action in the First Judicial District Court, Lewis and Clark County, against the Department of Commerce and Schwinden, individually and as DOC's agent, (hereinafter, unless otherwise specified, collectively “DOC”) alleging that DOC had (1) wrongfully discharged her without just cause; (2) violated her HRA and GCFP civil rights by engaging in political discrimination against her; and (3) violated her privacy rights and defamed her by providing confidential employment termination documentation to the Great Falls Tribune. She asserted that her District Court proceeding was timely filed because she had exhausted her internal grievance and administrative remedies in accordance with § 39–2–911(2), MCA.

¶ 9 DOC denied all wrongdoing and in March 2012 moved for partial summary judgment as to Baumgart's claims of political affiliation discrimination, violation of privacy, and defamation. Additionally, it sought summary judgment as to all claims levied against Schwinden. Among other things, DOC asserted that Schwinden was not aware that Baumgart was a Republican and therefore DOC could not have discriminated against her on political grounds. Moreover, it argued that Schwinden was immune from liability under § 2–9–305, MCA.

¶ 10 In October 2012, DOC filed a second motion for partial summary judgment alleging that (1) Baumgart's wrongful discharge claims were barred by res judicata; (2) the Wrongful Discharge from Employment Act (WDEA) did not apply to Baumgart's discharge because Montana Administrative Procedures Act (MAPA) provided a procedure and remedy for this dispute; (3) DOC had “good cause” to discharge Baumgart based upon her mismanagement of the Division's budget; and (4) DOC did not violate state policy by not providing Baumgart with progressive discipline.

¶ 11 On April 22, 2013, the District Court issued its Memorandum and Order in which it granted DOC's first motion as it pertained to political affiliation discrimination and all claims against Schwinden. It denied the motion as it pertained to Baumgart's privacy and defamation claims as premature. Subsequently, on July 12, 2013, the court issued its Memorandum and Order on DOC's second motion for partial summary judgment in which it granted DOC's motion on the issues of whether the Department had good cause to discharge Baumgart and whether DOC violated state policy by failing to provide progressive discipline. It denied the Department's motion on the issues of whether Baumgart's wrongful discharge claims were barred by res judicata and whether Baumgart was precluded from pursuing her WDEA claim based upon the exclusion contained in § 39–2–912, MCA. As a result of the District Court's orders and our rulings here, the only issues remaining for trial are Baumgart's violation of privacy and defamation claims.

¶ 12 Both parties moved for certification of some or all of the summary judgment rulings under M.R. Civ. P. 54 (Rule 54) and the District Court certified both summary judgment orders as final in their entirety for purposes of appeal. The parties stipulated to stay further proceedings pending appeal. Subsequently, the parties filed separate notices of appeal addressing separate issues, DA 13–0564 being Baumgart's appeal, and DA 13–0582 being DOC's appeal. Baumgart appeals the dismissal of her wrongful discharge and political discrimination claims, as well as the dismissal of her claims against Schwinden. She also appeals the District Court ruling that DOC was not required to provide progressive discipline before terminating her employment. DOC appeals the denial of its motion for summary judgment on the defamation and privacy claims. On September 3, 2013, DOC moved this Court to consolidate the two appeals. We denied DOC's motion, concluding that DA 13–0582 was not properly certified as final under Rule 54(b). However, we ordered that the appeal in DA 13–0564 could proceed.

STANDARD OF REVIEW

¶ 13 We review a district court's ruling on a motion for summary judgment de novo, applying the same criteria of M.R. Civ. P. 56 as did the district court. Summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” M.R. Civ. P. 56(c)(3); Newman v. Scottsdale Ins. Co., 2013 MT 125, ¶ 20, 370 Mont. 133, 301 P.3d 348 (citations omitted).

¶ 14 In response to a motion for summary judgment, the non-moving party must provide material and substantial evidence setting forth specific facts to raise a genuine issue of material fact, rather than relying upon speculative, conclusory or fanciful statements. Hiebert v. Cascade Cty., 2002 MT 233, ¶ 21, 311 Mont. 471, 56 P.3d 848. All reasonable inferences that may be drawn from the offered evidence should be drawn in favor of the party opposing summary judgment; however, “[s]ummary judgment cannot be defeated by unsupported speculation.” Knucklehead Land Co. v. Accutitle, Inc., 2007 MT 301, ¶ 26, 340 Mont. 62, 172 P.3d 116.

DISCUSSION

¶ 15 Did the District Court err in granting DOC's motions for...