Rupnow v. City of Polson

• Decision Date: 15 September 1988
• Docket Number: No. 88-99,88-99
• Citation: 761 P.2d 802,234 Mont. 66,45 St.Rep. 1734
• Parties: William J. RUPNOW, Jr., Plaintiff and Appellant, v. CITY OF POLSON, Defendant and Respondent.
• Court: Montana Supreme Court

Page 802

761 P.2d 802

234 Mont. 66

William J. RUPNOW, Jr., Plaintiff and Appellant, v. CITY OF POLSON, Defendant and Respondent.

No. 88-99.

Supreme Court of Montana.

Submitted on Briefs July 8, 1988.

Decided Sept. 15, 1988.

Bothe & Lauridsen, P.C., David W. Lauridsen, Columbia Falls, for plaintiff and appellant.

James E. Handley, Polson, for defendant and respondent.

HUNT, Justice.

William J. Rupnow, plaintiff, appeals the decision of the District Court of the Twentieth Judicial District, Lake County, granting the City of Polson, defendant, summary judgment, pursuant to Rule 56, M.R.Civ.P., upon all three counts Rupnow sets forth in response to his termination from the City of Polson's police department. The three counts Rupnow bases his complaint upon are wrongful discharge, breach of the implied covenant of good faith and fair dealing, and negligence. We affirm the District Court's decision.

Rupnow raises the following issues on appeal:

1. Whether the District Court erred in granting the City of Polson's motion for summary judgment regarding Rupnow's claims based upon:

a. wrongful discharge

b. breach of the implied covenant of good faith and fair dealing

c. negligence.

Rupnow, a former Chief of Police for the City of Fort Benton, began working as a police officer for the City of Polson on July 15, 1985. Despite an ambiguity that exists regarding the length of a newly hired police officer's probationary status, Rupnow accepted the position with the knowledge that he would be on a probationary status for the first year. In light of Rupnow's past experience within law enforcement, Ronald Buzzard, who subsequently became the Chief of Police for the City of Polson, conveyed to Rupnow that the one year probation period should not be a problem for him. Rupnow was to be evaluated once every three months throughout the probationary period.

Rupnow was first evaluated on September 30, 1985 by then-Assistant Chief of Police Buzzard. The evaluator Buzzard stated on the evaluation form that Rupnow was "doing a good job, no apparent difficulties." The evaluation marks given to Rupnow at this time supported this conclusion. Buzzard subsequently testified that although he experienced a couple difficulties with Rupnow, he did not mention the difficulties because he did not want "to come down on him too hard" during the first three month period.

Rupnow's second evaluation occurred on January 20, 1986 by the then-Acting Chief of Police Buzzard. Twenty categories were listed on the performance evaluation report, Buzzard determined that Rupnow met the department's standards in seventeen areas, exceeded the standard in one area, and required improvement in two areas. In rating Rupnow's overall performance, Buzzard checked the box that stated "requires improvement." Buzzard's written comments on this evaluation included the following:

Section B: Record job STRENGTHS and superior performance incidents.

Officer Rupnow is very knowledgeable in police work and has a lot of potential. He gets along well with fellow employees and is courteous to the public. He has a lot of ideas which will benefit the police department and city in the future.

Section C: Record PROGRESS ACHIEVED in attaining previously set goals for improved work performance, for personal, or job qualifications.

None previously set.

Section D: Record specific GOALS or IMPROVEMENT PROGRAMS to be undertaken, during next evaluation period.

Officer Rupnow is to spend more time patrolling the streets of Polson looking for traffic violators, patrolling alleys and providing basic police services.

Section E: Record specific work performance DEFICIENCIES or job behavior requiring improvement or correction....

Officer Rupnow is spending too much time sitting around doing nothing. This includes staying in the sheriff's office too long and taking too long of coffee breaks. This is possibly the reason his volume of work is low.

Rupnow refused to sign this second performance evaluation and instead presented a formal protest to the mayor of Polson together with his formal application for the permanent Chief of Police position that was then available.

Rupnow was informed on March 21, 1986, at a meeting attended by Councilwoman Malgren, Mayor DeVries, Sergeant Witts, Chief Buzzard, and Rupnow, that his appointment as probationary Polson police officer was being withdrawn. Chief Buzzard and Mayor DeVries expressed to Rupnow that a primary concern of theirs was his tendency to refuse to follow Chief Buzzard's orders. The reasons Buzzard recommended to the Mayor that Rupnow's appointment be withdrawn were (1) failure to attend a training meeting; (2) failure to complete a log book; (3) complaints regarding Rupnow "setting up" a councilman for selling alcohol to minors; and (4) complaints by Rupnow that a fellow officer had made derogatory comments about him. The withdrawal was confirmed by a letter from Mayor DeVries dated March 24, 1986.

Rupnow then brought a complaint against the City of Polson in the Twentieth Judicial District Court, Lake County, alleging wrongful discharge, breach of the implied covenant of good faith and fair dealing, and negligence. The District Court granted the City of Polson's motion for summary judgment. Rupnow appeals.

1a. Wrongful Discharge

The first issue Rupnow raises on appeal is whether the District Court erred in granting the City of Polson's motion for summary judgment regarding Rupnow's claim based upon wrongful discharge.

Under Rule 56(c), M.R.Civ.P., a district court may grant a party's motion for summary judgment when the court finds that "no genuine issue as to any material fact" exists. Evans v. Montana Nat'l Guard (Mont.1986), 726 P.2d 1160, 1161, 43 St.Rep. 1930, 1932; Clarks Fork Nat'l Bank v. Papp (Mont.1985), 698 P.2d 851, 853, 42 St.Rep. 577, 579; Cereck v. Albertson's Inc. (1981), 195 Mont. 409, 411, 637 P.2d 509, 511. As the moving party, the City of Polson has the initial burden to present the court with evidence that excludes any real doubt as to the existence of a genuine issue of material fact and that therefore it is entitled to a judgment as a matter of law. If the City of Polson meets this burden, the burden then shifts to the opposing party, Rupnow, to establish by substantial evidence the existence of genuine issue of material fact. VanUden v. Hendricksen (1980), 189 Mont. 164, 169, 615 P.2d 220, 223-24; Dooling v. Perry (1979), 183 Mont. 451, 456, 600 P.2d 799, 802.

In the present case, under Count I, Rupnow claims that he was wrongfully discharged from the Polson's police department. Specifically, Rupnow argues that the City of Polson violated public policy by not following the progressive discipline policy adopted by the City of Polson on March 3, 1986. This section of the City of Polson's personnel policy reads as follows:

10. PROGRESSIVE DISCIPLINE. It is the responsibility of authority in charge to insure that all City employees subject to discriplinary [sic] measure receive corrective action appropriate to the offense and progressive in nature. The following procedure should be used:

1. First Offense....Oral Warning

2. Second Offense ... Written Warning

3. Third Offense....Suspension w/out Pay

4. Fourth Offense ...Dismissal

It should also be understood that, depending upon the nature and circumstances of the violation, the authority in charge may use any disciplinary measure appropriate within their judgment.

The City of Polson disputes Rupnow's allegations and argues that it pursued the alternative method of discipline provided in the policy, which allows the authority in charge to use their judgment in using any appropriate disciplinary measure after considering the nature and circumstances of the violation. The District Court found that the City of Polson, through the Mayor's and Buzzard's affidavits, met its burden of proof by showing that no genuine issues of material fact existed with respect to a public policy violation, but that Rupnow failed, after the burden shifted to him, to show by substantial evidence that genuine issues of material fact exist to show that the City of Polson did not comply with its personnel policy. We agree.

To successfully maintain the tort of wrongful discharge, a plaintiff must show that the defendant violated a public policy. Dare v. Montana Petroleum Marketing Co. (1984), 212 Mont. 274, 281, 687 P.2d 1015, 1019; Nye v. Dept. of Livestock (1982), 196 Mont. 222, 228, 639 P.2d 498, 502; Keneally v. Orgain (1980), 186 Mont. 1, 5-6, 606 P.2d 127, 129. Rupnow argues that a violation of the City of Polson's personnel policy is a violation of public policy and that the City of Polson violated its personnel policy when it did not follow the progressive disciplinary measures outlined in the policy.

The City of Polson's personnel policy, however, specifically allows for an alternative means of disciplining city employees. In this case, the City of Polson presented substantial evidence to the District Court that its personnel pursued the alternative approach available to them and exercised their judgment in imposing disciplinary measures upon probationary officer Rupnow, which included oral warnings and written evaluations specifying areas that required improvement. Rupnow, on the other hand, failed to address the City of Polson's option to pursue the alternative method of disciplining employees and instead merely offered its conclusion of law that since the City of Polson never followed the progressive disciplinary method, it...