Motarie v. Northern Montana Joint Refuse Disposal Dist.
| Decision Date | 07 December 1995 |
| Docket Number | No. 95-259,95-259 |
| Citation | 907 P.2d 154,52 St.Rep. 1209,274 Mont. 239 |
| Parties | , 11 IER Cases 386, 1996 O.S.H.D. (CCH) P 30,951 Gary R. MOTARIE, Plaintiff and Appellant, v. NORTHERN MONTANA JOINT REFUSE DISPOSAL DISTRICT, Defendant and Respondent. |
| Court | Montana Supreme Court |
John F. Lynch; Lynch & Chisholm, Great Falls, for Appellant.
Selden S. Frisbee, Cut Bank, for Respondent.
Gary R. Motarie (Motarie) appeals from an order of the Ninth Judicial District Court, Glacier County, granting Northern Montana Joint Refuse Disposal District (NMJRDD) summary judgment. The court concluded that there was no genuine issue of material fact as to the essential element of Motarie's claim of wrongful discharge, specifically, that NMJRDD fired Motarie in retaliation for his reporting a violation of public policy. We reverse.
The following issue is raised on appeal:
Did the District Court err in granting NMJRDD's motion for summary judgment?
NMJRDD hired Motarie in early July, 1992, as an attendant at a landfill "roll-off site" in Cut Bank, Montana. Motarie was hired as a probationary, or "at will" employee. According to Motarie, NMJRDD did not provide its workers at the site with shelter, bathroom facilities, or any means of communication. After NMJRDD failed to ameliorate these conditions, Motarie contacted the Federal Occupational Safety and Hazard Administration (OSHA). In response, OSHA informed NMJRDD that OSHA had been notified of an alleged hazard as follows:
1. Employee is not provided with emergency communication while working at the landfill alone which may be a violation of Section 5(a)(1) of the Act [Occupational Safety and Health Act of 1970].
OSHA made no determination that the alleged hazard existed and informed NMJRDD that OSHA would not conduct an investigation at that time. Instead, OSHA requested NMJRDD to investigate the alleged conditions and make the necessary corrections. Within 30 days of receiving OSHA's notice, NMJRDD was to advise OSHA in writing of the results of NMJRDD's investigation, with supporting documentation, as well as a description, with supporting documentation, of any corrective action taken. If NMJRDD did not respond within 30 days, OSHA stated, "an investigation may be conducted." OSHA stated that the letter to NMJRDD was not a citation or notification of proposed penalty since these may not be issued without an inspection or investigation of the workplace by OSHA. The record reveals no response from NMJRDD to OSHA, and NMJRDD received no further communication from OSHA. In early January, 1993, before his probationary term expired, NMJRDD fired Motarie.
Did the District Court err in granting NMJRDD's motion for summary judgment?
Our standard of review in appeals from summary judgment rulings is de novo. Mead v. M.S.B., Inc. (1994), 264 Mont. 465, 470, 872 P.2d 782, 785. Therefore, this Court reviews an order granting summary judgment based on the same criteria applied by the district court pursuant to Rule 56, M.R.Civ.P. Chilberg v. Rose (1995), --- Mont. ----, ----, 903 P.2d 1377, 1378, 52 St.Rep. 1038, 1039 (citing Minnie v. City of Roundup (1993), 257 Mont. 429, 431, 849 P.2d 212, 214). Summary judgment should not be granted if there is any genuine issue of material fact. Thus, we determine whether a genuine issue of material fact exists and whether the moving party is entitled to judgment as a matter of law. Chilberg, 903 P.2d at 1379; Howard v. Conlin Furniture No. 2, Inc. (1995), 272 Mont. 433, 435-36, 901 P.2d 116, 118, 52 St.Rep. 814, 815. We look to the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits to determine the existence or nonexistence of genuine issues of material fact. Krebs v. Ryan Oldsmobile (1992), 255 Mont. 291, 294, 843 P.2d 312, 314 (citing Sherrodd, Inc. v. Morrison-Knudsen Co. (1991), 249 Mont. 282, 284, 815 P.2d 1135, 1136).
A party seeking summary judgment has the burden of establishing a complete absence of any genuine factual issues. Howard, 901 P.2d at 118 (citing Hagen v. Dow Chem. Co. (1993), 261 Mont. 487, 491, 863 P.2d 413, 416). In light of the pleadings and the evidence before the court, there must be no material issue of fact remaining which would entitle a nonmoving party to recover. Howard, 901 P.2d at 118. Once the moving party has met its burden, the opposing party must present material and substantial evidence, rather than mere conclusory or speculative statements, to raise a genuine issue of material fact. Howard, 901 P.2d at 119. Disputed facts are material if they involve the elements of the cause of action or defense at issue to an extent that necessitates resolution of the issue by a trier of fact. State Med. Oxygen v. American Med. Oxygen (1994), 267 Mont. 340, 344, 883 P.2d 1241, 1243. Finally, all reasonable inferences that might be drawn from the offered evidence should be drawn in favor of the party who opposed summary judgment. Howard, 901 P.2d at 119. In this case, our review of the District Court's order granting summary judgment focuses on one of the bases of wrongful discharge, namely, whether the discharge was in retaliation for the employee's good faith reporting of a violation of public policy. Section 39-2-904(1), MCA.
The Montana Wrongful Discharge From Employment Act (WDFEA) provides three bases upon which a terminated employee may bring a claim for wrongful discharge. Section 39-2-904, MCA. These elements are set forth in the statute:
39-2-904. Elements of wrongful discharge. A discharge is wrongful only if:
(1) it was in retaliation for the employee's refusal to violate public policy or for reporting a violation of public policy;
(2) the discharge was not for good cause and the employee had completed the employer's probationary period of employment; or
(3) the employer violated the express provisions of its own written personnel policy.
The parties agree that Motarie was a probationary employee. The statutory prohibition on termination in retaliation for the employee's refusal to violate public policy does not distinguish between probationary and non-probationary employees. Section...
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