The opinion
NO. 95-259
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
GARY R. MOTARIE, II
!p&&#b
Plaintiff and Appellant,
v.
NORTHERN MONTANA JOINT
REFUSE DISPOSAL DISTRICT,
Defendant and Respondent.
APPEAL FROM: District Court of the Ninth Judicial District,
In and for the County of Glacier,
The Honorable Marc G. Buyske, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
John F. Lynch; Lynch & Chisholm, Great Falls,
Montana
For Respondent:
Selden S. Frisbee, Attorney at Law, Cut Bank,
Montana
Submitted on Briefs: October 26, 1995
Decided: December 7, 1995
Filed:
Justice W. William Leaphart delivered the Opinion of the Court.
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 19701.
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
2
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 nova. 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
(Mont. 1995), 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. Chilberq, 903 P.2d at
3
1379; Howard v. Conlin Furniture No. 2, Inc. (Mont. 1995), 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.Zd at 119. In this case,
our review of the District Court‘s order granting summary judgment
4
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(l),
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 39-2-
904(1), MCA. In fact, as long as an employer's conduct is
consistent with the employer's personnel policies, the only basis
for challenging the discharge of a probationary employee is that
the employer discharged the employee in retaliation for refusing to
violate public policy or for reporting a violation of public
policy. See LeRoy H. Schramm, Montana Employment Law and the 1987
Wrongful Discharge From Employment Act: A New Order Begins, 51 MONT.
L. REV. 95, 117 (1990).
5
Motarie's complaint alleges that NMJRDD violated 5 39-s
904 Cl), MCA, by terminating him because he reported unsafe working
conditions to OSHA. NMJRDD moved for summary judgment arguing that
it was undisputed that OSHA had not cited NMJRDD for a statutory
violation. The District Court agreed, concluding that NMJRDD met
its burden in support of its motion for summary judgment by
presenting undisputed evidence that there had been no OSHA
citation. Recognizing that OSHA had not cited NMJRDD for any
violation of the Occupational Safety and Hazard Act, the District
Court determined that there had been no actual statutory violation,
thus, there could be no violation of public policy.
The burden then became Motarie's to raise a genuine issue of
material fact concerning a violation of public policy. In response
to an interrogatory, Motarie testified that: "I did report to OSHA
the violation of communication and I was confronted about it by Don
and that after that time I was constantly harassed by him and feel
it was due to my report to OSHA. I was fired in retaliation for my
reporting to OSHA." The court determined that these statements
were merely conclusory and speculative. Accordingly, the court
concluded there was no genuine issue of material fact because
Motarie could not show that a violation of public policy occurred
nor could he show the basis for his belief that a violation had
occurred. We disagree.
Section 39-2-903(7), MCA, defines public policy as a policy in
effect at the time of the discharge concerning the public health,
safety, or welfare established by constitutional provision,
6
statute, or administrative rule. In the present case, OSHA'S
letter to NMJRDD stated that the alleged hazard "may be a violation
of § 5(a) (1) of the Act." The District Court premised summary
judgment upon the fact that there was no official determination
that there had been a violation of the Occupational Safety and
Health Act. In other words, the court reasoned that, because
Motarie's report did not result in a citation or investigation,
Motarie could not base his claim upon a violation of public policy.
This retrospective reasoning is without merit. It fails to
recognize that the WDFEA protects a good faith "whistle blower."
Krebs, 843 P.2d at 315. Thus, regardless of whether the employee's
report actually results in a citation or investigation, the test is
whether the employee made the report in good faith.
Motarie reported to OSHA that he was not provided with
emergency communication while working alone. Although this report
did not result in an OSHA citation, NMJRDD has not alleged or shown
that Motarie's report of working alone without emergency
communication was baseless; that is, that it was not made in good
faith. In fact, NMJRDD admits that there were no communication
facilities at any of the roll-off sites.
Therefore, we hold that Motarie's statement that he reported
potential violations of the Occupational Safety and Health Act to
OSHA and that he was fired in retaliation, are not merely
conclusory and speculative statements. Rather, Motarie has raised
a genuine issue of material fact regarding an essential element of
the WDFEA; namely, whether his discharge was in retaliation for a
good faith reporting of what he reasonably perceived to be a
violation of public policy. Consequently, we conclude that the
District Court erred in granting summary judgment.
Reversed.
We concur:
December 7, 1995
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
John F. Lynch
LYNCH & CHISHOLM
Box 2265
Great Falls MT 59403-2265
Selden S. Frisbee
Attorney At Law
Box 1998
Cut Bank MT 59427-1998
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA