Moe v. Butte-Silver Bow Cnty.

Citation383 Mont. 297,2016 MT 103,371 P.3d 415
Decision Date10 May 2016
Docket NumberNo. DA 15–0400.,DA 15–0400.
PartiesLindsey MOE, Plaintiff and Appellant, v. BUTTE–SILVER BOW COUNTY, Defendant, Cross–Appellant and Appellee.
CourtUnited States State Supreme Court of Montana

For Appellee: Cynthia L. Walker, Emma R. Armstrong–Blanchard, Poore, Roth & Robinson, P.C., Butte, Montana.

Justice BETH BAKER delivered the Opinion of the Court.

¶ 1 Lindsey Moe appeals an order of the Second Judicial District Court, Silver Bow County, granting partial summary judgment in favor of Butte–Silver Bow County (County). The County cross-appeals the District Court's partial denial of its summary judgment motion.

¶ 2 We restate the issues as follows:

1. Whether the County is entitled to summary judgment on Moe's claim that it violated Montana's open meeting laws.
2. Whether the County is entitled to summary judgment on Moe's claim that it violated Montana's public participation laws.
3. Whether the District Court erred in granting summary judgment in the County's favor with respect to Moe's 42 U.S.C. § 1983

claim.

4. Whether the District Court erred in ruling as a matter of law that the County did not discharge Moe in violation of its own policies or for refusing to violate public policy.
5. Whether the District Court correctly concluded that Moe is entitled to a trial on her claim that the County terminated her employment without good cause.

¶ 3 We affirm on all issues.

PROCEDURAL AND FACTUAL BACKGROUND

¶ 4 Moe was appointed as the human resources director for the County beginning in 2009. In early 2013, employees complained to the County Chief Executive Matt Vincent regarding Moe's job performance and behavior. Vincent and the County Attorney, Eileen Joyce, met with Moe in February 2013 to informally counsel Moe regarding her performance issues.

¶ 5 In April 2013, Vincent learned that Moe had failed to disclose to him her knowledge of potential wage claims against the County.1 During that same month, one of Moe's subordinates filed a productive work environment/workplace harassment complaint against Moe. As a result, Vincent placed Moe on administrative leave in May 2013, pending the outcome of an investigation by an independent consultant. During the investigation Moe was represented by counsel, participated in meetings with Vincent, and provided written responses to the issues being investigated.

¶ 6 The investigation established that the productive work environment/workplace harassment complaint was unsubstantiated. The investigation revealed, however, that other issues were substantiated relating to Moe's inappropriate conduct and job performance deficiencies.

¶ 7 Pursuant to the County Charter, the Chief Executive has the power to remove a non-elected department head for just cause with advice and consent of the Council of Commissioners (Council). Following the investigation, Vincent determined that Moe should be terminated and requested a special meeting of the Council to obtain its advice and consent for the termination. Moe was provided with the written documents and reasons for her termination. Vincent met with Moe and her attorney in order to give Moe an opportunity to provide any additional information or documents in response to the investigation results. The Council was given the investigative report, along with the documents Moe submitted in response, for review in advance of the meeting.

¶ 8 Prior to the meeting, Vincent announced his intention to close the portion of the meeting concerning the reasons for his decision to terminate Moe. Joyce informed Moe that the meeting would be closed and that Moe would not be allowed to speak at the meeting. In response, Moe waived her right of privacy and requested that the meeting remain open.

¶ 9 At the beginning of the meeting on October 16, 2013, Vincent, as the presiding officer, declared that he was closing the meeting based on his determination that the privacy rights of County employees, including the employee who had made the workplace harassment complaint and the employees who provided information during the investigation, outweighed the merits of public disclosure. Vincent did not identify the employees with the alleged privacy interests or give those employees an opportunity to waive their privacy interests. Moe and her attorney were allowed to remain at the meeting, but were not allowed to speak.

¶ 10 During the closed portion of the meeting, Vincent and Joyce provided the Council with reasons for Moe's termination. When the meeting was re-opened the Council granted consent to terminate Moe's employment. On October 18, 2013, Vincent sent a termination notice to Moe advising her that she was discharged, and included a copy of the County's grievance policy.

¶ 11 Moe submitted a grievance with the County on November 4, 2013. On November 15, 2013, Moe filed a complaint alleging three counts against the County: 1) violation of Montana's open meeting laws, Article II, Section 9 of the Montana Constitution

and § 2–3–203, MCA ; 2) violation of Article II, Section 8 of the Montana Constitution and §§ 2–3–101 through –114, MCA, relating to the right of citizen participation in government operations; and 3) violation of due process and equal protection rights under the Fourteenth Amendment to the United States Constitution, claiming a right to recover damages pursuant to 42 U.S.C. § 1983. In January 2014, the County denied Moe's grievance on the ground that she failed to provide a detailed statement of the disputed issues and relevant facts that explain what specific policies and procedures she alleged were violated and the specific remedy she sought through the grievance process. Moe amended her complaint in March 2014, adding a fourth count: 4) violation of the Montana Wrongful Discharge from Employment Act, §§ 39–2–901 through –915, MCA.

¶ 12 After the County filed its answer to her amended complaint, Moe moved for partial summary judgment on the issue of liability on all four counts. The County opposed Moe's motion and filed its own motion for summary judgment on all counts. During the January 16, 2015 summary judgment hearing, the County introduced a copy of the independent investigator's fact-finding report relating to Moe's termination. The District Court admitted the report provisionally. After the hearing, the court ordered that the report be filed under seal. On May 27, 2015, the District Court issued an order granting summary judgment to the County on the first three counts. On the fourth count, the court granted the County's motion with respect to Moe's claim that the County violated § 39–2–904(1)(a) and (c), MCA

. The court denied the County's motion with respect to Moe's claim that the County violated § 39–2–904(1)(b), MCA, holding that factual questions remained as to whether the County had good cause for Moe's termination.

¶ 13 Moe moved for certification of the summary judgment order as final pursuant to M. R. Civ. P. 54(b)

. The District Court granted Rule 54(b) certification on June 30, 2015. Noting that the County did not oppose Moe's motion for certification, we determined that the District Court's certification order satisfied the requirements of M. R. Civ. P. 54(b) and M. R. App. (6)(6). Moe v. Butte–Silver Bow Cnty., DA 15–0400, Or. (Mont. July 14, 2015). Both parties appeal.

STANDARDS OF REVIEW

¶ 14 We review de novo a district court's grant or denial of summary judgment. Pilgeram v. GreenPoint Mortg. Funding, Inc., 2013 MT 354, ¶ 9, 373 Mont. 1, 313 P.3d 839

. Summary judgment is appropriate when the moving party demonstrates both the absence of any genuine issues of material fact and entitlement to judgment as a matter of law. M. R. Civ. P. 56(c)(3) ; Anderson v. BNSF Ry., 2015 MT 240, ¶ 15, 380 Mont. 319, 354 P.3d 1248. Conclusory statements, speculative assertions, and mere denials are insufficient to defeat a motion for summary judgment. Davis v. State, 2015 MT 264, ¶ 7, 381 Mont. 59, 357 P.3d 320. All reasonable inferences that may be drawn from the offered evidence should be drawn in favor of the party opposing summary judgment; however, summary judgment cannot be defeated by unsupported speculation. Baumgart v. State, 2014 MT 194, ¶ 14, 376 Mont. 1, 332 P.3d 225. We review a district court's conclusions of law to determine whether they are correct and its findings of fact to determine whether they are clearly erroneous. Pilgeram, ¶ 9.

DISCUSSION

¶ 15 1. Whether the County is entitled to summary judgment on Moe's claim that it violated Montana's open meeting laws.

¶ 16 Moe claims that the decision to close a portion of the special meeting violated Montana's open meeting laws because the County failed to follow proper procedures in determining whether the alleged privacy interests of the other employees outweighed the merits of public disclosure. Moe argues that the employees who had alleged privacy interests were “not even identified” and that there was “no analysis of what [the] alleged privacy rights were.” Moe emphasizes that she had waived her privacy rights and that the other employees were not given the same opportunity. Moe argues that Vincent made a “blanket determination” that simply because other employees were involved they automatically had privacy interests that prevented any public discussion of any aspect of the investigation.” According to Moe, [s]uch an unprecedented rule would gut the Open Meeting Laws.” As a result, Moe contends that the County should have identified the other employees, stated why their privacy rights outweighed the merits of public disclosure, and then given them a chance to waive those privacy rights.

¶ 17 In any event, Moe argues, the other employees' protected privacy interests were not implicated because none of their personnel records were discussed at the meeting. According to Moe, [a]t most, employee(s) accusations against Moe could have been discussed, and these are not protected by a privacy right except that of [Moe].” In addition, Moe argues...

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    ...in society, are mixed questions of fact and law under the totality of the circumstances of each case. Raap , ¶ 12 (citing Moe v. Butte-Silver Bow Cty. , 2016 MT 103, ¶ 19, 383 Mont. 297, 371 P.3d 415 ); Scheetz , 286 Mont. at 48, 950 P.2d at 726 (noting that assessment of an expectation of ......
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