Dare v. Montana Petroleum Marketing Co.

• Decision Date: 10 September 1984
• Docket Number: No. 83-542,83-542
• Citation: 212 Mont. 274,687 P.2d 1015,41 St.Rep. 1735
• Parties: , 117 L.R.R.M. (BNA) 2442, 104 Lab.Cas. P 55,596 Jacqueline DARE, Plaintiff and Appellant, v. MONTANA PETROLEUM MARKETING CO., Defendant and Respondent.
• Court: Montana Supreme Court

Page 1015

687 P.2d 1015

212 Mont. 274, 117 L.R.R.M. (BNA) 2442,

104 Lab.Cas. P 55,596

Jacqueline DARE, Plaintiff and Appellant, v. MONTANA PETROLEUM MARKETING CO., Defendant and Respondent.

No. 83-542.

Supreme Court of Montana.

Submitted on Briefs March 15, 1984.

Decided Sept. 10, 1984.

Nye & Meyer, Billings, for plaintiff and appellant.

Herndon, Harper & Munro, Billings, for defendant and respondent.

WEBER, Justice.

Jacqueline Dare appeals from summary judgment granted by the Thirteenth Judicial District Court, Yellowstone County, in favor of Montana Petroleum Marketing Company on her claims for relief arising from termination of her employment. We reverse.

The sole issue on appeal is whether the District Court erred in granting summary judgment to defendant employer.

Jacqueline Dare worked as a cashier and station attendant at defendant's Husky service station in Billings from July 14, 1982 to January 23, 1983. She was hired by oral agreement by manager Dick Bertrand, who was also her supervisor.

Employee responsibilities were specified in instructions the company furnished to station managers. These instructions began with the admonition:

"Managers: Following are some items that must be covered and understood by all new employees during their training period."

The parties dispute whether manager Dick Bertrand reviewed these instructions with Dare or whether she in fact knew of the policies listed in these instructions. The instructions defined employee duties, conduct and appearance. They did not include any disciplinary or termination procedures. The instructions contained a paragraph stating:

"We draw from our existing employees to fill most of our open manager positions. An employee who continually requires little or no supervision and shows some personal initiative in wanting to learn the ins/outs and do/don'ts of the petroleum retailing field will most likely have a station of his own in the not too distant future."

Dare began working for defendant in July at $3.35 per hour. Her pay was raised to $3.65 per hour in October and she received health insurance benefits. She stated in her deposition that she was promised another raise in three months, but never received it. She also said Bertrand told her he wanted her to learn to do the station's bookkeeping.

Dare stated in her deposition that on January 22, 1983 she fell in her front yard when coming home from work. She went to the hospital and was given a neck brace to wear. As a result of the fall, she was ill before she went to work on Sunday, January 23, 1983. Dare called a co-worker to ask if she would work in Dare's place, but she could not. Dare went to work at 2 p.m. and worked until around 5 p.m., when she called Bertrand and told him she wasn't sure she could complete her shift. Bertrand told her to try. She took some pain pills and threw up in the garbage can. A customer called Bertrand to inform him of Dare's condition. Bertrand called Dare back and told her, "I am coming in to work for you, and when I get there you're fired."

Dare and Bertrand give contradictory versions of why Dare was fired.

Bertrand claimed Dare refused to clean designated areas despite verbal warnings on two occasions. He claimed he had warned her about having men hang around the station while she worked, but that on numerous occasions he had entered the station and found men and women standing at the counter eating hamburgers and french fries while Dare was trying to wait on customers. Bertrand claimed Dare closed the station 5 minutes early on one occasion and that he told her closing early was grounds for immediate dismissal. He claimed that even though she promised it would not happen again, he later twice witnessed her closing early. Bertrand states that on December 3, 1982 he placed Dare on probation for 30 days, telling her she would be dismissed if her work performance did not improve. He stated that her "constant" calls complaining of being too sick to work, coming in late and lack of responsibility were "getting to be too much."

Dare stated in deposition that although Bertrand had warned her and all station employees about cleaning duties, she never refused to clean anything. She stated that one warning resulted from her failure fully to clean up the men's restroom after the toilet overflowed. She stated that management had not provided gloves or other equipment for cleanup and that she "did not want to touch it." She stated she was never warned about friends hanging around the station because there were no friends hanging around the station. She said Bertrand warned all employees against allowing men to hang around.

Dare admitted closing 5 minutes early on Christmas Eve after no customers came in for 2 1/2 hours. She claimed Bertrand did not tell her closing early was grounds for dismissal, but simply told her not to let the owner catch her or she would be "in trouble." She denied closing early on any occasion other than Christmas Eve. Moreover, she stated she missed work for illness only once during her 6 months of employment. Finally, she stated she was never told she was being placed "on probation," although she admitted Bertrand had told her that unless her work performance improved she would be terminated. However, she states that she was later told on several occasions that she was doing an excellent job.

Dare filed suit claiming she had been wrongfully discharged for becoming too ill to work, even though she had no prior history of illness. She also claimed her employer breached the covenant of good faith and fair dealing implied in the employment relationship. She demanded reinstatement, lost earnings, damages for mental, emotional and financial distress, punitive damages and costs.

Defendant moved for summary judgment alleging there was no genuine issue as to any material fact and that defendant was entitled to judgment as a matter of law. The motion was briefed and the parties stipulated to submission on briefs without oral argument.

Dare argued that Gates v. Life of Montana Insurance Company (1982), 196 Mont. 178, 638 P.2d 1063, "modified" section 39-2-503, MCA. That section states:

"An employment having no specified term may be terminated at the will of either party on notice to the other ...."

Dare argued that under Gates and Nye v. Department of Livestock (Mont.1982), 639 P.2d 498, 39 St.Rep. 49, the employer cannot as a matter of law rely upon the concept of at will employment to justify indiscriminate termination of employment. She contended that the duty of good faith and fair dealing and the tort of wrongful discharge override the at will employment concept. She contended that summary judgment was improper because there were genuine issues of material fact as to whether her employer breached these duties or violated public policy in her termination.

The District Court granted summary judgment to defendant. The court reasoned that the plaintiff had failed to show any public policy violation, as required to sustain an action for wrongful discharge, because no rules or regulations were ignored or misapplied here as was the case in Nye. Further, the court reasoned that no covenant of good faith and fair dealing could be implied in Dare's employment relationship because there was no employment handbook covering employee discharge as in Gates. Finally, the court granted summary judgment on Dare's claim for emotional, mental and financial distress because the court had granted summary judgment on Dare's underlying claims and because the court concluded plaintiff had presented no evidence supporting the claim. Dare appeals from the summary judgment granted by the District Court.

The rules regarding summary judgment are well settled. The purpose of summary judgment is to encourage judicial economy by eliminating unnecessary trials. Summary judgment will be upheld in cases where the complaining party fails to demonstrate the existence of material and substantial facts that would alter the decision made below. However, summary judgment is not a substitute for trial where a factual controversy exists. The appellate standard for review of a grant or denial of a summary judgment motion is the same as that used by the trial court initially under Rule 56(c), M.R.Civ.P.: a summary judgment is properly granted when it appears "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." If there is any doubt as to the propriety of a motion for summary judgment, it should be denied. Reagan v. Union Oil Co. (Mont.1984), 675 P.2d 953, 956, 41 St.Rep. 131, 134. Here, we find genuine issues of material fact which require reversal of the summary judgment granted by the District Court.

Dare alleges that she was wrongfully discharged by defendant. This Court addressed the tort of wrongful discharge in Nye v. Department of Livestock (Mont.1982), 639 P.2d 498, 39 St.Rep. 49. In Nye, we stated:

"... [T]he tort of wrongful discharge may apply to an at will employment situation. In fact, the theory of wrongful discharge has developed in response to the harshness of the application of the at will doctrine, under which an employment may be terminated without cause .... The determination of whether the cause of action arises rests upon whether an unfair or unjustified termination was in violation of public policy. Keneally v. Orgain (1980) Mont. 606 P.2d 127, 37 St.Rep. 154." Nye, 639 P.2d at 502, 39 St.Rep. at 53.

In Nye, we found that administrative rules may be the source of a public policy which would support a claim of wrongful discharge. We held that the Department of Livestock had violated public policy by failing to apply to plaintiff, a department employee, its own regulations regarding employee discipline and termination. Nye, 639 P.2d at 502, 39 St.Rep. at 53-54.

However, in Keneally v. Orgain (1980), 186 Mont. 1, 606 P.2d 127, we found that the plaintiff-employee...