Easy v. State of Mont., Dept. of Natural Resources and Conservation

• Decision Date: 31 March 1988
• Docket Number: No. 87-297,87-297
• Citation: 752 P.2d 746,231 Mont. 306
• Parties: Fred EASY, Plaintiff and Appellant, v. The STATE OF MONTANA DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION and the State of Montana, Defendants and Respondents.
• Court: Montana Supreme Court

Page 746

752 P.2d 746

231 Mont. 306

Fred EASY, Plaintiff and Appellant, v. The STATE OF MONTANA DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION and the State of Montana, Defendants and Respondents.

No. 87-297.

Supreme Court of Montana.

Submitted on Briefs Feb. 25, 1988.

Decided March 31, 1988.

Robert T. Cummins, W. William Leaphart, The Leaphart Law Firm, Helena, for plaintiff-appellant.

John H. Maynard, Tort Claims Div., Dept. of Admin., Helena, for defendants-respondents.

HARRISON, Justice.

This case arose in the First Judicial District Court, Lewis and Clark County, Montana. Fred Easy, hereafter the plaintiff, appeals from the District Court's instruction to the jury that a laid-off state employee is entitled to a "tie-breaker" preference in rehiring by state agencies. The plaintiff argues that the state employment policy affords him an absolute preference in rehiring by the State. The State contends that the intent, interpretation, and constant application of the policy has been as a tie-breaker preference, i.e. giving laid-off state workers a preference if they are as qualified as other finalists. The District Court accepted the State's argument and issued its proposed instruction. We affirm.

The parties have submitted an agreed statement of the record, pursuant to Rule 9(e), M.R.App.P., in lieu of the complete transcript. That statement of the record reflects that plaintiff lost his job with the Department of Natural Resources and Conservation (DNRC) during a reduction in force. His position never was reopened and consequently he never was offered reinstatement. He applied for various other positions at DNRC and other state agencies but never was offered any of those jobs. He then filed a wrongful discharge action in the First Judicial District Court, Lewis and Clark County, alleging that DNRC and other state agencies failed to abide by his preferred re-employment status as a former state employee under state policy on reduction in force. The relevant portion of that policy reads:

E. Each agency shall make a concerted effort to make other agencies aware of both the names of persons laid off and their job classifications, and agencies with vacancies shall give reinstatement preference to those employees laid off by other agencies when recruiting for a specific skill if compatible with their Affirmative Action Plan and EEO goals.

At trial, the District Court refused to give plaintiff's proposed instruction number 15. That instruction read:

If Plaintiff applied for a position with the State of Montana and met the minimum qualifications for that position, he was entitled to an absolute reinstatement preference for that position and was entitled to the job.

Instead the court's instruction number 20, originally offered by the State, read:

If Plaintiff applied for a position with the State of Montana and met the qualifications for that position, he was entitled to a tie-breaker preference for that position.

The agreed statement of the record indicates that the Department of Administration's Personnel Division, which had drafted the policy, intended it to be a tie-breaker preference and had consistently applied the policy as a tie-breaker preference.

On appeal, plaintiff analogizes the State's rehiring policy to the Veteran's Preference Act, Sec. 10-2-201, et seq., MCA (1983). We do not consider that analogy entirely proper and do not subscribe to the plaintiff's contention that our decision in Crabtree v. Montana State Library (1983), 204 Mont. 398, 665 P.2d 231, controls. In Crabtree, this Court held that a statute, since repealed, that said veterans, their spouses and dependents, and handicapped civilians "shall be preferred for appointment and [state] employment" constituted an absolute preference. Crabtree, 665 P.2d at 234.

The history and application of that statute, as set forth in the District Court's ruling and adopted by this Court on review, irrefutably indicated that the veteran's preference "was born in the wake of World War I ... [and] it was clear the preference was intended to be absolute." Crabtree, 665 P.2d at 234. The section was later amended to include handicapped civilians, but had remained substantially unchanged despite nine legislative reviews. The District Court also noted that this Court in 1941 ruled the veteran's preference required that a city...