Dagel v. City of Great Falls, No. 91-069

• Docket Nº: No. 91-069
• Citation: 250 Mont. 224, 819 P.2d 186, 48 St.Rep. 919
• Case Date: October 10, 1991
• Court: United States State Supreme Court of Montana

Page 186

819 P.2d 186 250 Mont. 224, 124 Lab.Cas. P 57,188 Carlene DAGEL, Plaintiff and Appellant,
v.
CITY OF GREAT FALLS, Defendant and Respondent. No. 91-069. Supreme Court of Montana. Submitted on Briefs June 6, 1991.
Decided Oct. 10, 1991.

Page 187

[250 Mont. 225] Elizabeth A. Best, Best Law Offices, Great Falls, for plaintiff and appellant.

J. Dennis Moreen, Chronister, Driscoll & Moreen, P.C., Helena, for defendant and respondent.

[250 Mont. 226] WEBER, Justice.

Plaintiff, Carlene Dagel, brought this action alleging harassment by her supervisor which forced her to resign from her job. She sued the City of Great Falls under theories of violation of constitutional rights under 42 U.S.C. § 1983, wrongful discharge, and both negligent and intentional infliction of emotional distress. Plaintiff also filed a motion to join Charlis Manzer, her supervisor, as a party defendant; and also filed a motion for summary judgment on a number of grounds. The City also filed a motion for summary judgment. The District Court for the Eighth Judicial District, Cascade County, denied plaintiff's motions and granted summary judgment in favor of the City of Great Falls. Plaintiff appeals. We affirm in part and reverse in part.

The issues are:

1. Did the District Court properly conclude that the City of Great Falls is not liable under 42 U.S.C. § 1983?

2. Did the District Court properly hold that the City of Great Falls is immune from plaintiff's state law claims under § 2-9-111, MCA?

3. Did the District Court properly conclude that plaintiff was covered by a written collective bargaining agreement at the time of her discharge, thus preempting suit under the Wrongful Discharge From Employment Act?

4. Did the District Court properly conclude that plaintiff's claims of violation of the implied covenant of good faith and fair dealing and for infliction of emotional distress are barred by the Wrongful Discharge From Employment Act?

5. Did the District Court properly deny plaintiff's motion to join Ms. Manzer under Rules 19 and 20, M.R.Civ.P.?

Plaintiff, Carlene Dagel, was hired on August 16, 1984, by the City of Great Falls Public Works Department (City) as a "Clerk II". Plaintiff's duties included taking phone messages, doing reports, billing, filing and some typing for various divisions within the Public Works Department. Her immediate supervisor was Charlis Manzer (Ms. Manzer). Ms. Manzer was an administrative assistant who also supervised one or two other clerks and a secretary.

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Ms. Manzer disciplined plaintiff for poor performance of her duties with disciplinary actions ranging from oral counselling to suspension for a period of days. Plaintiff maintains that only one reprimand was [250 Mont. 227] contained in her personnel file when she was terminated but that Ms. Manzer kept other information concerning plaintiff in her own separate file. In November 1987, plaintiff resigned her employment following the last of these disciplinary actions because she felt her treatment by Ms. Manzer was causing her emotional problems. Plaintiff stated under oath:

... it was three years, I have been so frustrated, and I have tried five times to commit suicide within the last few years.... And I decided, well, hey maybe that isn't the way that should be. If she's getting to me that much, maybe I should just get out of there. And so I drew up my letter of resignation after the last reprimand she gave me. I just felt that was so far out of line, and it just really, really upset me.

During most of her employment plaintiff was a member of a union, the Montana Public Employees' Association, a collective bargaining unit, which had contracted with the City. The union contract with the City expired on June 30, 1986; plaintiff resigned in November 1987; and a new contract was executed December 1, 1987.

Both plaintiff and the union attempted to file a grievance under the procedure set forth in the union contract. The City refused that request, as set forth in the following letter submitted as an exhibit in the summary judgment proceeding:

City of GREAT FALLS Montana

P.O. Box 5021

December 17, 1987

Mr. Jim Adams

Montana Public Employees Association

P O Box 5600

Helena MT 59604

Re: Carlene Dagel

Dear Mr. Adams:

I have your letter of December 11, 1987, where for the first time you attempt to assert the grievance procedure in this matter under a contract negotiated with the City.

In response, it is the City's position that the union lacks jurisdiction to initiate the grievance procedure for the following reasons:

1. The dates of Dagel's suspension, November 3, 4, 5, 1987, occurred after the expiration of the former contract which terminated on June 30, 1986 and before the date of the current contract, [250 Mont. 228] December 1, 1987. In other words, there was no contract and no grievance procedure in effect or available to the union members during the dates of suspension.

2. Dagel voluntarily terminated her employment with the City by letter dated November 4, 1987. By terminating her employment on November 4, 1987, Dagel severed her rights under any grievance procedure of a collective bargaining agreement or otherwise. No question was raised on the disciplinary procedure prior to Dagel's termination letter of November 4, 1987 and we submit neither she nor the union has jurisdiction to pursue such a claim now that she has voluntarily terminated her employment.

As explained in previous correspondence, we deem the City's disciplinary action to be proper under the circumstances and for the reasons stated above, consider the matter closed.

Sincerely,

s/ Hal Million

Hal Million

Acting Public Works

Director

Subsequently, plaintiff filed this action in District Court to recover damages for wrongful discharge, violation of her constitutional rights, and intentional and negligent infliction of emotional distress. Plaintiff claimed that throughout her employment with the City, she was subjected to continual harassment by Ms. Manzer in the form of "purported counsellings and reprimands".

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Plaintiff moved for summary judgment and to join Ms. Manzer, as a defendant. The City responded by filing a cross-motion for summary judgment. The District Court adopted the City's proposed findings of fact and conclusions of law and granted the City's motion for summary judgment. Plaintiff moved to amend judgment or grant a new trial, which motion was denied. This appeal followed.

I

Did the District Court properly conclude that the City of Great Falls is not liable under 42 U.S.C. § 1983?

Plaintiff sought recovery under 42 U.S.C. § 1983 which provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the [250 Mont. 229] deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....

The District Court concluded:

Carlene's allegations in her complaint are, in effect, that the defendant City of Great Falls is responsible for any alleged acts of Charlis Manzer because it is the employer. In other words, that the City is liable under Respondeat Superior. It is settled that a municipality cannot be liable for money damages in an action under 42 U.S.C. § 1983 based upon the theory of Respondeat Superior. Monell v. New York, 436 U.S. 658, 694 [98 S.Ct. 2018, 2037, 56 L.Ed.2d 611] (1978); City of Oklahoma City v. Tuttle, 471 U.S. 808 [105 S.Ct. 2427, 85 L.Ed.2d 791] (1985). Plaintiff's 1983 claims against the City are therefore without merit.

. . . . .

If a plaintiff can establish the existence of a widespread practice that, although not authorized by written law or express policy, is so permanent and well settled as to constitute a custom or usage with the force of law a municipality may be liable for the actions of its employees. [City of St. Louis v.] Praprotnik, supra [485 U.S. 112, 127, 108 S.Ct. 915, 926] 99 L.Ed. [2d 107] at 120 [(1988)]. However, plaintiff has failed to allege either in her complaint or in her briefs any such widespread practice regarding harassment of employees.

Plaintiff has no valid cause of action under 42 U.S.C. § 1983 against the defendant City of Great Falls.

Plaintiff maintains that the City was responsible for the individual acts of its agent, Ms. Manzer, and adopted them as its own. She also maintains that under § 2-9-305, MCA, governmental employees have a responsibility beyond respondeat superior. She further argues Ms. Manzer was a policy maker for the City.

The City maintains that plaintiff's § 1983 claim must fail because the facts established by the plaintiff demonstrate that the City's liability under § 1983 is based upon respondeat superior, which is not a valid basis for recovery under § 1983. We agree.

The United States Supreme Court has held that respondeat superior or vicarious liability will not attach under § 1983. Monell v. New York City Dept. of Social Serv. (1978), 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611; City of Canton, Ohio v. Harris (1989), 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412. In Monell the Supreme Court held that § 1983 authorizes suit "for constitutional deprivations visited pursuant to governmental 'custom' even though such a custom has [250 Mont. 230] not received formal approval through the body's official decisionmaking channels". Monell, 436 U.S. at 690-691, 98 S.Ct. at 2035-2036.

In City of Saint Louis v. Praprotnik (1988), 485 U.S. 112, 108 S.Ct. 915, 99 L.Ed.2d 107, the Court further explained Monell, outlining four guiding principles for holding a municipality liable under § 1983:

(1) Municipalities may be held liable under § 1983 only for acts for which the municipality itself is actually...