Brenden v. City of Billings, DA 19-0067

Docket NºDA 19-0067
Citation399 Mont. 352, 2020 MT 72, 470 P.3d 168
Case DateMarch 31, 2020
CourtUnited States State Supreme Court of Montana

399 Mont. 352
470 P.3d 168
2020 MT 72

Tad BRENDEN, Plaintiff and Appellant,
v.
CITY OF BILLINGS, Defendant and Appellee.

DA 19-0067

Supreme Court of Montana.

Submitted on Briefs: July 31, 2019
Decided: March 31, 2020


For Appellant: Tucker P. Gannett, Amanda Beckers Sowden, Gannettt Sowden Law, PLLC, Billings, Montana

For Appellee: Gerry P. Fagan, Adam Warren, Moulton Bellingham PC, Billings, Montana

Justice Dirk Sandefur delivered the Opinion of the Court.

399 Mont. 355

¶1 Appellant Tad Brenden (Brenden) appeals the judgment of the Montana Thirteenth Judicial District Court, Yellowstone County, granting summary judgment to the City of Billing (City) on his claims that the City is vicariously liable for the tortious acts of former City employee Michael Glancy (Glancy). The dispositive issue is:

Whether the District Court erroneously concluded as a matter of law that Glancy was not acting within the scope of his employment?

¶2 We reverse and remand for further proceedings.

399 Mont. 356

PROCEDURAL AND FACTUAL BACKGROUND

¶3 The City twice employed Brenden as an air rescue firefighter/airfield maintenance worker at the Billings Airport—once from January 2004 to March 2006 and again from November 2012 until November 2016. Glancy was Brenden's immediate supervisor during both periods of employment. In December 2014, a disagreement arose between Brenden and Glancy about shift scheduling that resulted in Brenden filing a grievance against Glancy with the City human resources director. In subsequent depositions, Glancy and Brenden both described the shift scheduling disagreement as the breaking point in their professional relationship. After Brenden filed the grievance, Glancy continually documented perceived workplace problems with Brenden for nearly two years in an electronic log titled the "Brenden Log." Glancy maintained the log during work hours on his city-owned office computer at the airport. Glancy also maintained copies on his office computer of corrective action forms he issued to Brenden, a negative annual performance review he issued to Brenden, and Brenden's rebuttal thereto.

¶4 In October 2016, while still employed by the City, Brenden applied for a switchman trainee position with Montana Rail Link (MRL). Brenden's job application listed Glancy as his City supervisor. MRL accordingly called Glancy at his airport office for a reference check on Brenden. Glancy confirmed Brenden's city employment, gave him an unqualified "positive reference,"1 and, in response to a specific question from MRL, stated that Brenden was a "safe" employee. After MRL hired Brenden, he resigned his city employment, effective November 6, 2016. His last day was Friday, November 4, 2016.

¶5 MRL maintains a "hotline" (EthicsPoint) on its internet website as a means for

470 P.3d 171

employees and the public to submit anonymous complaints regarding MRL operations and employees. On Saturday, November 5, 2016, Glancy submitted an anonymous complaint on the EthicsPoint hotline falsely alleging that Brenden had stolen City property. The evidence conflicts as to whether Glancy submitted his complaint using his city-owned computer from his airport office or from home on his personal computer. In a subsequent deposition, the City's human resources director testified that, upon investigation by city information technology staff, the City determined that Glancy accessed the MRL website from his city-owned office computer at the airport for ten minutes and three seconds on November 5, 2016. The City could

399 Mont. 357

not definitively determine, however, whether he specifically accessed the MRL hotline feature of the website during that time. Glancy subsequently admitted that he accessed the MRL website from his airport office computer on November 5, 2016, but claimed that he did so only for the limited purpose of determining whether MRL had a website complaint hotline. He claimed that, after confirming that it did, he later submitted his anonymous hotline complaint from his personal computer at home. On that day, Glancy was on a paid, on-call duty status with the City. On the hotline complaint form, Glancy characterized the nature of the complaint as "[s]tealing items issued during [the] course of employment" and further elaborated that:

Tad was previously employed with the City of Billings. Upon his receipt of his two week notice he was instructed to return all airport/city issued items on his last day. Tad did not return uniform badges (2) valued at $200.

¶6 On November 9, 2016, MRL human resources officer Susan Twiford (Twiford) telephoned Glancy and inquired about the anonymous allegation. MRL called Glancy based on its prior knowledge that he was Brenden's city supervisor, had previously responded to MRL's initial reference check inquiry, and was thus the person who could best confirm or refute the truth of the allegation. During the call, Glancy told Twiford, inter alia , that Brenden had indeed stolen city property, was also involved in a violent incident in the workplace, had created a hostile working environment at the airport, and that he was "an HR nightmare." Glancy further stated that he had "tons of documentation that you're welcome to" and that "I'll send ... to you." Glancy subsequently sent two emails to MRL with copies of various employment records attached, including corrective action directives issued to Brenden, a negative annual performance evaluation, and Glancy's "Brenden Log." Glancy sent the email and attachments during the work day from his airport office using his city email account. The transmittal emails included a signature line identifying Glancy as the City "Airport Operations Supervisor."

¶7 On November 10, 2016, based on the information received from Glancy on November 9, MRL terminated Brenden's employment on his second day on the job. Approximately two weeks later, Glancy sent Twiford an email stating that he had heard that their "mutual acquaintance ha[d] moved on" and that he hoped that the previously "shared items [would] find the shredder or vault." In April 2017, Glancy sent another email to Twiford asking her to notify him if MRL received "any inquiries" regarding Brenden. After learning of Glancy's post-employment communications with MRL regarding Brenden, the City

399 Mont. 358

terminated Glancy on June 22, 2017, on the ground that those communications violated City policy.

¶8 On November 8, 2017, Brenden sued the City in district court, asserting claims for tortious interference with business relations and negligent misrepresentation. On May 30, 2018, Brenden asserted two additional claims—defamation and breach of the Montana constitutional right to privacy. Brenden asserted that the City was vicariously liable for Glancy's tortious conduct under the common law doctrine of respondeat superior. On November 5, 2018, the City filed a motion for summary judgment on Brenden's claims on the asserted ground that Glancy engaged in the alleged tortious conduct outside the scope of his employment. The City asserted that it did not authorize Glancy's tortious conduct, did not benefit from it, and that it was the conduct of a rogue employee acting entirely for his own benefit. Brenden opposed the

470 P.3d 172

motion on the asserted ground that genuine issues of material fact precluded summary judgment as to whether Glancy committed the alleged tortious acts within the scope of his city employment.

¶9 On December 21, 2018, the District Court granted the City summary judgment on the stated ground that Glancy engaged in the alleged tortious conduct outside the scope of his employment. Citing Restatement (Second) of Agency § 228 (Am. Law Inst. 1958), the court essentially concluded that it was beyond genuine material dispute on the Rule 56 record that the City did not authorize Glancy to disclose Brenden's personnel information and records to MRL, and that the disclosures "did not ‘grow out of’ " his earlier response, within the scope of his employment, to MRL's initial reference check. The court reasoned that Glancy did not have any employment-related need or obligation to provide MRL further information regarding Brenden, much less false information. Citing Restatement (Second) of Agency § 228(1)(c) (tortious conduct in scope of employment must be "actuated, at least in part, by a purpose to serve the [employer]"), the court noted that Glancy's tortious conduct was of no benefit to the City after Brenden resigned and that its subsequent termination of Glancy for "violat[ing] ... workplace guidelines show[s] that he went beyond the scope of employment and was in no part actuated by a purpose to serve the [City]." Brenden timely appeals.

STANDARDS OF REVIEW

¶10 Summary judgment is proper only when there is no genuine issue of material fact, and a party is entitled to judgment as a matter of law. M. R. Civ. P. 56(c)(3). Whether a genuine issue of material fact

399 Mont. 359

exists or whether...

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3 practice notes
  • Raugust v. Montana, CV 20-9-H-CCL
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Montana)
    • June 29, 2020
    ...on employers for the tortious conduct of employees committed while acting within the scope of their employment." Brenden v. Billings, 2020 MT 72, ¶ 13 (Mont. 2020). The State did not employ any of the individually named defendants whose allegedly wrongful conduct led to Plaintiff's murder c......
  • L. B. v. United States, 20-35514
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 6, 2021
    ...conduct may still fall within the scope of employment so long as it is "incidental to" or "closely intermingled" with authorized conduct. 399 Mont. 352, 470 P.3d 168, 178 (2020) (quoting Keller v. Safeway Stores , 111 Mont. 28, 108 P.2d 605, 612 (1940) ). But Brenden did not answer the ques......
  • L. B. v. United States, 20-35514
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 6, 2021
    ...conduct may still fall within the scope of employment so long as it is "incidental to" or "closely intermingled" with authorized conduct. 470 P.3d 168, 178 (Mont. 2020) (quoting Keller v. Safeway Stores, 108 P.2d 605, 612 (Mont. 1940)). But Brenden did not answer the question presented in t......
3 cases
  • Raugust v. Montana, CV 20-9-H-CCL
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Montana)
    • June 29, 2020
    ...on employers for the tortious conduct of employees committed while acting within the scope of their employment." Brenden v. Billings, 2020 MT 72, ¶ 13 (Mont. 2020). The State did not employ any of the individually named defendants whose allegedly wrongful conduct led to Plaintiff's murder c......
  • L. B. v. United States, 20-35514
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 6, 2021
    ...conduct may still fall within the scope of employment so long as it is "incidental to" or "closely intermingled" with authorized conduct. 399 Mont. 352, 470 P.3d 168, 178 (2020) (quoting Keller v. Safeway Stores , 111 Mont. 28, 108 P.2d 605, 612 (1940) ). But Brenden did not answer the ques......
  • L. B. v. United States, 20-35514
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 6, 2021
    ...conduct may still fall within the scope of employment so long as it is "incidental to" or "closely intermingled" with authorized conduct. 470 P.3d 168, 178 (Mont. 2020) (quoting Keller v. Safeway Stores, 108 P.2d 605, 612 (Mont. 1940)). But Brenden did not answer the question presented in t......

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