Becker v. Rosebud Operating Services, Inc., DA 07-0155.

• Decision Date: 12 August 2008
• Docket Number: No. DA 07-0155.,DA 07-0155.
• Citation: 191 P.3d 435,2008 MT 285,345 Mont. 368
• Parties: Thomas BECKER, Plaintiff and Appellant, v. ROSEBUD OPERATING SERVICES, INC., Defendant and Appellee.
• Court: Montana Supreme Court

191 P.3d 435

2008 MT 285

345 Mont. 368

Thomas BECKER, Plaintiff and Appellant, v. ROSEBUD OPERATING SERVICES, INC., Defendant and Appellee.

No. DA 07-0155.

Supreme Court of Montana.

Submitted on Briefs January 8, 2008.

Decided August 12, 2008.

For Appellant: Jeffrey A. Simkovic, Penelope S. Strong; Billings Legal, PLLC; Billings, Montana.

For Appellee: Michael W. Tolstedt; Felt, Martin, Frazier & Jacobs, PC; Billings, Montana.

Justice JIM RICE delivered the Opinion of the Court.

¶ 1 Appellant Thomas Becker (Becker) was terminated from his employment as a fuel technician with Appellee Rosebud Operating Services, Inc. (ROSI), after a heated argument with his supervisor and the plant manager. Becker filed a wrongful discharge action against ROSI in the Thirteenth Judicial District Court, Yellowstone County. The District Court granted summary judgment to ROSI. We affirm.

¶ 2 We address the following issues on appeal:

¶ 3 1. Should we decline to consider Becker's argument on appeal because his legal theory has changed from the theory previously argued and relied upon by the District Court?

¶ 4 2. Did the District Court err by granting ROSI's motion for summary judgment on Becker's wrongful discharge claim because material fact issues remain in dispute regarding whether good cause supported Becker's termination?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 5 Becker was employed by ROSI as a "fuel tech" at its power plant in Colstrip, Montana, until his employment was terminated after a dispute with his employer on January 19, 2005. In September 2004, Becker had orally requested a lateral transfer from his current position as a fuel tech to a vacant "utility tech" position. Becker received a letter from ROSI plant manager Dan Gray (Gray) informing him that because his current hourly wage was substantially higher than the top wage for a utility tech, Becker would have to accept a pay decrease of approximately four dollars per hour if he took the vacant utility tech position. Becker contacted the Montana Department of Labor and was informed that ROSI had the legal authority to decrease Becker's pay if he took the new position. On October 24, 2004, Becker wrote a letter to Gray withdrawing his transfer request. In his letter, Becker stated that the Department of Labor had advised him that "these kinds of issues are best handled under union representation." ROSI's employees were not unionized at that time. However, Becker contended in his complaint that he began to sense hostility from ROSI's management shortly after they received his letter.

¶ 6 On January 17, 2005, a limestone blower at ROSI malfunctioned. On January 19, 2005, Gray asked Becker's immediate supervisor and the plant's maintenance manager, Joe Kerzman (Kerzman), to walk Becker and the other fuel techs through the coal-handling system to ensure that it was being cleaned properly. Becker had heated exchanges with Kerzman in the plant control room and during the walk-through. Becker became agitated and angry because he felt he was being treated like an "idiot" and a "child" and was being blamed for the recent failure of the limestone blower. Due to Becker's argumentative and aggressive responses during the walk-through, Kerzman told Becker to accompany him to Gray's office.

¶ 7 Kerzman informed Gray that he was having disciplinary problems with Becker and, according to Becker, a three-way argument then ensued. During this argument, Becker told Kerzman to "kiss my ass," after which Gray and Becker engaged in a close shouting match. Becker repeatedly asked Gray if he was terminated, and Gray repeatedly responded that he was not terminating Becker, but that Becker was being placed on paid administrative leave until he calmed down. According to Becker's initial version of the facts, Becker then called Gray a "prick," after which Gray fired him. According to ROSI's version, this sequence was accompanied by even more offensive language by Becker.

¶ 8 The only disputed fact appears to be the timing of Becker's cursing, and arises from inconsistencies in Becker's deposition testimony. Although Becker's complaint, deposition, and brief in opposition to summary judgment indicate that he swore at Gray before he was terminated, Becker also testified at the end of his deposition that he didn't say "kiss my ass" or call Gray a "prick" until after he was terminated. However, Becker now admits on appeal that he told Kerzman to "kiss my ass" before he was terminated, although he continues to maintain that he did not curse at Gray until after Gray terminated his employment.

¶ 9 After Gray told Becker he was fired, Becker allegedly kicked a chair in Gray's office and called Gray additional names as he stormed out of the office. Gray then called the Sheriff's Department to ensure the situation did not escalate further, and Becker left the premises after collecting his belongings.

¶ 10 Gray sent a letter to Becker advising him that he was terminated for "unruly behavior, threatening attitude and abusive language towards the Maintenance and Plant Managers." ROSI's employee handbook, which Becker acknowledged reading and signing, contained standards of conduct applicable to employees. The handbook listed non-inclusive examples considered to be serious breaches of conduct, including "[u]sing profane or abusive language at any time on Company premises." The handbook provided that "[e]mployees who engage in behavior similar to the foregoing or that the Company considers unacceptable or inappropriate ... will be subject to disciplinary action ranging from reprimand to immediate discharge, depending on the seriousness and/or frequency of the offense."

¶ 11 Becker filed a complaint alleging that ROSI's proffered reasons for terminating him "are not accurate, do not reflect a legitimate business reason, and are, therefore not good cause for terminating [Becker's] employment" under Montana's Wrongful Discharge from Employment Act (the "Act"). In Defendant's brief in support of summary judgment, ROSI argued that Montana law and ROSI's employee manual provided good cause for immediately terminating Becker's employment for cursing at ROSI management. ROSI's brief was supported by the affidavits of Gray and Kerzman, as well as affidavits of two ROSI employees who overheard the argument in Gray's office. In opposition, Becker argued that a material issue of disputed fact existed regarding "whether the events after the lateral transfer issue in October, 2004, and fear of Plaintiff promoting unionization in Rosebud, were real motivating factors in Defendant's conduct and are the real reasons for termination." Becker's brief was supported by his own deposition testimony, a discharge statement he filed with the Montana Unemployment Insurance Division, and a short email sent from Gray to others at ROSI after Becker had withdrawn his transfer request, informing them that Becker had contacted the Department of Labor about possibly filing a complaint against ROSI due to the unfairness of having to take a pay cut if he transferred.

¶ 12 The District Court granted ROSI's motion for summary judgment, concluding that Becker presented no evidence, other than his own speculation, that he was discharged for anything other than good cause. According to the District Court, Becker failed "to bring before the Court evidence that Defendant's termination of the employment relationship involved his alleged union activities, or the alleged fears of the plant management that he would attempt to unionize the employees." Becker appeals.

STANDARD OF REVIEW

¶ 13 We review a district court's grant or denial of summary judgment de novo. In doing so, we use the same criteria applied by the District Court under M.R. Civ. P. 56. "Summary judgment is an extreme remedy which should not be a substitute for a trial on the merits if a material factual controversy exists." Delaware v. K-Decorators, Inc., 1999 MT 13, ¶ 55, 293 Mont. 97, ¶ 55, 973 P.2d 818, ¶ 55 (citations omitted). If the moving party can demonstrate no genuine issues of material fact exist and entitlement to judgment as a matter of law, the burden then shifts to the nonmoving party to prove, by more than mere denial and speculation, that a genuine issue does exist. Bruner v. Yellowstone County, 272 Mont. 261, 264, 900 P.2d 901, 903 (1995). "The party opposing the motion for summary judgment cannot rely on mere allegations in the pleadings, but must present its evidence raising genuine issues of material fact in the form of affidavits or other sworn testimony." Arnold v. Yellowstone Mountain Club, LLC, 2004 MT 284, ¶ 14, 323 Mont. 295, ¶ 14, 100 P.3d 137, ¶ 14 (citation omitted).

DISCUSSION

¶ 14 1. Should we decline to consider Becker's argument on appeal because his legal theory has changed from the theory argued to and relied upon by the District Court?

¶ 15 In his brief in opposition to summary judgment, Becker's main argument was that a genuine issue of material fact existed regarding "whether the events after the lateral transfer issue in October, 2004, and fear of Plaintiff promoting unionization in Rosebud, were real motivating factors in Defendant's conduct and are the real reasons for termination." On appeal, Becker argues the genuine issue of material fact involves "facts underpinning the legal conclusion of good cause for termination." More specifically, Becker argues there are material fact issues as to "the timing of any obscene words uttered by him," whether Becker or Gray was the aggressor, and whether Becker ever used the "F word." Further, Becker's concluding argument is that even if he swore at his supervisors, "such is not good cause for his termination [because] he has a good work record and his termination was possibly tied to malfunctioning company equipment."

¶ 16 ROSI argues that Becker's complaint and brief in opposition to summary judgment focused on pretext, whereas Becker's current focus is on whether his use of...