T. Brenden v. City of Billings
470 P.3d 168
Mont.2020Background
- Tad Brenden worked as an airport rescue/maintenance employee supervised by Michael Glancy; a 2014 scheduling dispute led Brenden to file a grievance and Glancy to keep a multi-year “Brenden Log.”
- After Brenden resigned to work for Montana Rail Link (MRL) in November 2016, Glancy initially gave MRL a positive reference but then (Nov. 5) submitted an anonymous online EthicsPoint tip accusing Brenden of stealing City property.
- On Nov. 9, MRL contacted Glancy at his city office; he made derogatory allegations, offered documentation, and emailed personnel records (including the Brenden Log and corrective action forms) from his city computer and city email account, with a signature identifying his City title.
- MRL terminated Brenden on Nov. 10; the City later fired Glancy for violating City policy. Brenden sued the City for tortious interference and negligent misrepresentation (later adding defamation and privacy claims), asserting vicarious liability under respondeat superior.
- The district court granted summary judgment for the City, concluding Glancy’s post-resignation conduct was outside the scope of employment. The Montana Supreme Court reversed and remanded, holding genuine fact issues precluded summary judgment as to November 9 communications.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Glancy’s Nov. 9 statements/emails to MRL were within the scope of employment | Brenden: statements/emails were incident to supervisory duties, used City instrumentalities, and could be partly motivated to correct a prior reference—so a mixed motive and attendant facts create factual issues | City: Glancy acted outside scope; conduct was personal, malicious, unauthorized after Brenden resigned and provided no benefit to the City | Court: Reversed district court; genuine issues of material fact exist whether Nov. 9 conduct was incidental to authorized acts and thus within scope; remanded for further proceedings |
| Whether apparent authority may be considered though not separately pleaded | Brenden: apparent authority is a proper consideration in respondeat superior and need not be pled as a separate claim when respondeat superior is the theory of vicarious liability | City: Brenden failed to plead apparent authority separately and its use would be unfair surprise | Held: Court: apparent authority may be considered on the Rule 56 record as relevant to whether Glancy’s communications were within scope; separate pleading not required here |
| Whether employer benefit or actual profit is required to find conduct within scope | Brenden: employer need not profit; an employee’s mixed motive (partly to serve employer) suffices; use of city resources and role as supervisor support vicarious liability | City: No conceivable City benefit; conduct was a rogue, personal course of conduct | Held: Court: employer benefit is not dispositive; employee’s state of mind and whether conduct was incidental to authorized duties are fact questions for the finder of fact |
Key Cases Cited
- Kornec v. Mike Horse Mining & Milling Co., 180 P.2d 252 (Mont. 1947) (scope-of-employment may include acts incidental to authorized work; jury question where facts conflict)
- Keller v. Safeway Stores, 108 P.2d 605 (Mont. 1940) (unauthorized defamatory act may be within scope if closely intermingled with duties; apparent authority relevant)
- Denke v. Shoemaker, 198 P.3d 284 (Mont. 2008) (scope-of-employment is a fact question under the totality of circumstances)
- Roberts v. Pegasus Gold Corp., 903 P.2d 782 (Mont. 1995) (intentional torts may be outside scope when not incidental to employer’s business)
- Bowyer v. Loftus, 194 P.3d 92 (Mont. 2008) (summary judgment appropriate when only one legal inference reasonably follows from undisputed facts)
- Winslow v. Mont. Rail Link, Inc., 16 P.3d 992 (Mont. 2000) (summary judgment review de novo; view evidence in light most favorable to nonmoving party)