Nye v. Department of Livestock
| Decision Date | 14 January 1982 |
| Docket Number | No. 80-478,80-478 |
| Citation | 639 P.2d 498,39 St.Rep. 49,196 Mont. 222 |
| Parties | Margaret NYE, Petitioner and Appellant, v. The DEPARTMENT OF LIVESTOCK, et al., Defendants and Respondents. |
| Court | Montana Supreme Court |
Patrick Flaherty, argued, Great Falls, for petitioner and appellant.
John Bobinski, argued, Helena, for defendants and respondents.
Margaret Nye brought an action in the District Court of the Fifth Judicial District, Jefferson County, Montana, seeking judicial review of the termination of her employment and damages for slander and wrongful discharge. The District Court denied the petition for judicial review and dismissed the action on its merits. Nye appealed. We reverse the portion of the order dismissing the wrongful discharge claim and remand to the District Court for further proceedings.
Margaret Nye was hired by the Department of Livestock of the State of Montana ("Department") in October 1977. She initially worked as a permit clerk for the Department. The record does not disclose the grade at which the permit clerk position was classified under the state employee classification plan. In May 1979, Nye was promoted to the position of general office clerk V at a position classification of grade 8. Nye stated at the time of her promotion that she understood that pursuant to Department policy she would be put in a probationary status for six months. In August 1979, Nye's supervisors in the Department determined that she was not performing adequately in her new position. On August 20, Nye was told of the deficiencies in her work and was given a ten-day warning notice which informed her that the deficiencies must be corrected. Nye's work was spot checked during the ensuing ten-day period and her supervisors determined that she had not corrected certain deficiencies. Nye was terminated on August 31, 1979.
Nye invoked the Department's grievance procedures in order to challenge her termination. A three-person hearing committee was formed and a hearing was had on December 18, 1979. Both Nye and the Department were represented by counsel. The parties brought witnesses, presented exhibits, and submitted briefs and proposed decisions to the committee. The hearing committee then gave its opinion and recommendation to the head of the Department of Livestock. The committee concluded that departments of state government may require employees to enter into a probationary period when they are promoted to a new position and that the Department of Livestock's personnel policies properly included a probationary period for any promotion to a new position. Nye's rights were viewed as the rights of a probationary employee.
The hearing committee found that Nye knew and understood that she had made mistakes in her new position. The committee also found that Nye misunderstood the totality of the mistakes made by her, and found that she was under the impression that the problems had been resolved. The committee determined that the Department had not properly trained and supervised Nye. The hearing committee decided that termination was an unduly harsh method of dealing with Nye's deficiencies, especially when her excellent prior work record with the Department was considered. The committee determined that because the Department's grievance procedure applied to all employees, even probationary employees must be dealt with fairly. The committee concluded that there was a "lack of total fairness" in the termination of Nye. The hearing committee recommended that Nye not be reinstated to her previous position and not be awarded back pay. (It is unclear whether "previous position" refers to the permit clerk job or the general office clerk V job.) The committee further recommended that Nye be awarded $1,495.36 as compensation for the unfair treatment given her by the Department. Finally, the committee recommended that Nye be granted an entitlement to any grade 7 or 8 position in the Department for which she was qualified. The entitlement was to apply to any such position which became vacant in a two-year period.
The report and recommendations of the hearing committee were submitted to the director of the Department of Livestock in accordance with Department grievance procedures. The director refused to follow the committee's recommendations and affirmed Nye's termination. Nye filed suit in District Court seeking judicial review of the agency action, damages for slander, and, by way of an amended complaint, damages for wrongful discharge. The district judge denied the petition for judicial review and dismissed the cause on its merits because he determined that Nye had only a contract at will. Nye appealed, and raised the following issues:
(1) Did the District Court err by denying judicial review of the Department director's decision?
(2) Did the District Court err by dismissing the slander complaint? and
(3) Did the District Court err by denying Nye's motion to amend the complaint for the purpose of seeking damages in wrongful discharge?
Nye based her petition for review in the District Court upon the language of the Department's grievance policy and upon the Montana Administrative Procedure Act (MAPA).
The Department of Livestock has adopted personnel policies developed by the Department of Administration. Policy 3-0130, Discipline Handling; Policy 3- 0125, Grievances; Vol. III Montana Operations Manual. Policy 3-0125, Grievances, provides that:
"If the employee is not satisfied with the outcome of the Director's decision, the grievance may be brought before the applicable statutorily authorized review body: the Board of Personnel Appeals, the Merit System Council, the Human Rights Commission, or any appropriate federal enforcement agency, while those grievances not allowed redress with the aforementioned may be pursued at the district court level." (Emphasis supplied.)
We agree with the Department that the concluding language of the above excerpt cannot, of itself, create a right of judicial review. Policy 3-0125 is an administrative regulation. In Montana, only the legislature may validly provide for judicial review of agency decisions. "The legislature may provide for direct review by the district court of decisions of administrative agencies." Mont.Const. art. VII, § 4, cl. 2. A right of judicial review cannot be created by agency fiat.
In order for Nye to have a right of judicial review under MAPA, hers must be a "contested case." Section 2-4-702(1)(a), MCA, provides that "(a) person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review under this chapter." As defined at section 2-4-102(4), MCA, " '(c) ontested case' means any proceeding before an agency in which a determination of legal rights, duties, or privileges of a party is required by law to be made after an opportunity for hearing."
Administrative Procedures Subcommittee Comments, Title 2, Chapter 4, Part 1, MCA (Annotations).
Appellant Nye has cited no authority, either statutory or constitutional, which indicates that a person in Nye's position is "required by law" to be given an opportunity for hearing prior to a determination of her or his rights or privileges. The research conducted by this Court has not revealed any such legal requirement. We conclude that this case does not qualify as a contested case under MAPA.
The District Court did not err in refusing to grant Nye's petition for judicial review.
Nye's complaint alleged that her supervisors at the Department of Livestock made statements about her ability to work and perform the tasks at her work site which were either intentionally malicious or made with gross disregard for the truth. The complaint also alleged that certain Department administrators caused these statements to be published in Nye's notice of discharge, and that the publication was made with reckless disregard for the truth. Nye alleged that she was injured in various ways as a result of the making of the above statements. The Department of Livestock argued to the District Court that the intradepartmental publications complained of by Nye were absolutely privileged under Montana law. We agree.
Section 27-1-804(1), MCA, provides that a privileged publication is one made in the proper discharge of an...
To continue reading
Request your trial
-
Boyle v. Vista Eyewear, Inc.
...or regulatory provision or scheme, Parnar v. Americana Hotels, Inc., 65 Haw. 370, 652 P.2d 625 (1982); Nye v. Department of Livestock, 196 Mont. 222, 639 P.2d 498, 502 (1982); Adler v. American Standard Corporation, 291 Md. 31, 432 A.2d 464, 472 (1981); in the judicial decisions of the stat......
-
Boreen v. Christensen
...in conjunction with Loudermill as giving rise to a property interest in Boreen I, was first discussed in Nye v. Department of Livestock (1982), 196 Mont. 222, 639 P.2d 498. The Court initially determined that Nye had completed her probationary period of state employment and hence "had perma......
-
Bnsf Ry. Co. v. Cringle
...with the court's authority. Compare Dissent, ¶ 32 with ¶ 34. ¶ 23 The Dissent relies on a reference guide's interpretation of Nye v. Department of Livestock for the proposition that “only the legislature may validly provide for judicial review of agency decisions.” Nye v. Dept. of Livestock......
-
Heltborg v. Modern Machinery
...to the outmoded theory that a long-term employment may be terminated without cause. We condemned that in Nye v. Department of Livestock (1982), 196 Mont. 222, 228, 639 P.2d 498, 502, [T]he tort of wrongful discharge may apply to an at-will employment situation. In fact, the theory of wrongf......