*1 HUNTER, KELLY Appellant, Plaintiff and FALLS, CITY GREAT OF Respondent. Defendant No. 01-263. Submitted Briefs June Decided December 2002 MT 331. 61 P.3d 764. *2 Law, Attorney Billings. Jeff at Appellant: Lynch,

For Gliko, Law, Billings. Respondent: Attorney David V. at For Opinion of CHIEF GRAYdelivered the the Court JUSTICE Eighth Judicial Kelly appeals Hunter from the order of Court, County, granting summary judgment to the District Cascade City of Great Falls. We affirm. granting erred in the District Court We address whether employee, that, on as

summary judgment the basis Wrongful Discharge Montana Hunter is not entitled to relief under the (Act) (§ or in an action under U.S.C. Employment from 1983).

BACKGROUND firefighter with the appointed was as Hunter (Fire on March Department Department) Fire Great Falls appointment his six- initial Pursuant to § month term. superior whether Hunter’s officers considered August In In to Fire a memorandum firefighter. him confirmed promote

to to Young, Chief Randall Wayne Battalion Department Deputy Chief performance had been McCamley advised while Hunter’s or standard” several “meets below erratic and included somewhat to become an evaluations, potential he Hunter had monthly felt department. member Department accepted effective The Fire McCamley’s recommendation that Hunter’s status be beyond initial monthly extended six months and reviewed on a basis. September 1996, McCamley reprimanded On Hunter

failing notify him, officer, superior to as be would report following unable surgery. 24,1996, to work knee On October Captain writing McCamley Ron Lee recommended in that Hunter but, instead, not be supervised captain confirmed be one 25, 1996, entire month. In an Young, McCamley October memo to stated he was unable recommend Hunter firefighter confirmed based Hunter’s lack trust in his immediate supervisor McCamley, and understanding and his lack of of Fire Department policy, regulations. turn, rules Young Department recommended to Fire Chief James Hirose that Hunter’s be terminated progress based on his lack understanding department policies, continuing mistrust the officers unbecoming demonstration of characteristics a member of the Fire Department. terminated Hunter’s with Fire Department 31,1996. on October not dispute did attempt grieve the extension prior at time to the *3 termination. termination, After his grievance through

¶6 Hunter filed a the local Union). Fighters International of (Firefighters Association Fire denying grievance, the Hirose pointed out Hunter had neither been appointed permanent confirmed nor aas of Fire member the Department. reason, For that recognize Hirose refused to a Hunter as Firefighters subject grievance member of the procedure. Union Firefighters Hunter and the Union filed City ¶7 then this action. The summary judgment. moved for It claimed Hunter was not a union and, were, member even if he was still probationary employee he a whom apply and, therefore, the Act’s remedies do he not also did not possess property position purposes a interest a rights his of civil that, member, action under if argued 1983. even not a union City his claim against under the Act should survive because he had period. that, served his He having also contended completed probationary period, possessed his he a property interest employment subject process protections. to due granted summary The District City’s Court motion for judgment 1983, claims under the and the Firefighters appeals. Union’s claims. Hunter

234 OF REVIEW

STANDARD novo, employing the same de summary judgment review a We first, genuine used the trial court: whether issues of standards not, moving party if entitled to material fact exist whether is See Rule Winslow v. 56(c), M.R.Civ.P.; a of judgment as matter law. Link, Inc., 38, Montana Rail 292, 38, 289, MT 16 302 ¶ ¶ 992, Here, of P.3d Hunter does not assert the existence ¶ fact, challenges only of genuine of material certain issue of review a district court’s District Court’s conclusions law. We Gremaux, Heller v. determine of if are they conclusions law to correct. 199, 178, 1259, 2002 MT 311 Mont. ¶ ¶

DISCUSSION summary judgment granting on the Did the District Court err that, employee, Hunter is not entitled to relief basis under Act? wrongful completed A is if has discharge probationary period discharge and the

employer’s 39-2-904(l)(b), MCA. cause. Hunter contends concluding probationary employee District Court erred Falls, City Thompson Hobbs v. because, purposes of the Act MT P.3d we concluded an initial He is probationary period extended. incorrect. cannot be against City Hobbs was an action by discharged police officer successfully had not Thompson Falls. claimed Hobbs City Council had not completed because the nearly permanent employee after 13 months’ yet confirmed him as a basis, On that denied that probationary capacity. service in a granted the trial court its wrongfully terminated Hobbs was Hobbs, 3-5, pointed out summary judgment. 7-8. We motion for ¶¶ statute, appeal year” one and that

police in Montana “cannot exceed officers permissible during without cause is termination police however, could not terminate Conversely, period. following satisfactory completion without cause officer Hobbs, year service. one *4 case, Hobbs as similar to the present Hunter characterizes While addressing between the statutes ignores the crucial difference The statute firefighters. officers and probationary periods police “[e]very issue in Hobbs that provides regarding police officers at and received the certificate the examination applicant passed who has

235 probationary to in 7-32-4108 first for a term of referred must serve § year.” 7-32-4113, words, MCA. In not more than 1 other Legislature statutory a for a probationary police set maximum term contrast, In year. applicable officer of one § firefighters, provides “[e]ach shall first be made for months, probationary mayor manager a term of 6 and thereafter or may commission, nominate with the consent of the council or such ....” in appoint Nothing ... the statute limits a firefighter’s probationary term to six months. enacting law, In a Legislature presumed is have ordinary elementary

understood the rules construction of the State v. Miller English 517, language. (1988), 497, 757 P.2d (citation omitted). 1275, above, 1287 Comparing the two it is statutes clear the Legislature is aware how to a maximum probationary set period, officers, by using as it did police the “not more than” language. equally It Legislature clear the chose not do so as firefighters, setting statutory probationary instead minimum period by using the words “first be made for a 6 term of months.” presume if the Legislature We had intended to create maximum for firefighters, it would have done so See MacMillan v. State Compensation Ins. Fund expressly. (1997), 285 (citation omitted). 202, 207, 75, Moreover, Mont. 947 P.2d statute, construing job simply “is to ascertain and decide what is in terms therein, or in substance contained not to insert what has been 1-2-101, Thus, omitted....” Section MCA. 7-33-4122, we cannot add to § MCA, language contained MCA. reading further asserts that a fair and reasonable prohibits

Act expansion employee’s “unilateral” or extension of an He period. contends affirmance the District Court’s ruling nullify by creating favor of “will defense entirety.” which will provisions swallow Act’s remedial their We disagree. Nerison, Inc., Whidden John S. 19, MT ¶ plain we held under the ¶

meaning 39-2-904(2), nonprobationary “a discharged be cause.” We went to conclude the “employer define period must at the outset of an relationship, employer showing has the burden that a discharge.” effect at time of a Whidden, 21. The Whidden conditions deter abusive expansion fact, thereby avoiding extension of after the periods *5 nullifying protections provided to Montana prospect workers Act. argues failed meet regard, Hunter that this period probationary Hunter reasons that a Whidden conditions. While “purely a matter of discretion” is not one which be extended employment, he the manner defined at the outset of mischaracterizes and time in which his was established. above, statutory probationary period As discussed Moreover, firefighters six-month the Fire is minimum term. augments statutory provisions regarding Department’s policy manual firefighters. promoted probationary from status to “confirmed To be Firefighter,” following requirements: meet person must

(1) (6) Firefighter. as a experience Must have at least six months (2) meet as set forth in Montana State Fire requirements Must Codes, 7-33-4122, Probationary Period. following: based

Confirmation shall be (1) on supervisor have written recommendation from first line Must examination. prior and Battalion Chief written (2) examination successfully pass with a minimum Must written score of 75%.

Examinations given for confirmation will not be unless candidates requirements listed above. have fulfilled the Section, Policy, Firefighter Department Great Falls Fire Personnel clearly requires probationary Fire Department policy Promotion. The just experience six months of firefighter to do more than obtain firefighter. status to a confirmed job promoted probationary to be from (2) minimum six-month The first above tracks subsection (1) firefighters, while the first period for subsection probationary firefighter as a is a minimum. experience the six clarifies that months’ also include a written requirements confirmation additional firefighter’s supervisors of a recommendation from two examination the other given an unless finally, a 75% score on requirements promotion from requirements These discrete are met. status, statutory minimum term set together with the suggestion that the in disprove forth pure period a matter of discretion. extension of the Fire part of period The terms of his were the time he was hired. Department’s policy at defined the Further, as to whether Hunter, City filed relationship ofits with at the outset Jewett, a City two with the District Court. Ramona affidavits personnel analyst, affirmatively averred that she conducted an 1,1996, Hunter on March participated orientation which explained firefighters’ probationary period at which she that In addition, Young would six months unless stated last for extended. he two-day program affidavit conducted orientation new firefighters March As participated. part of 1996 which Hunter outlined program, Young orientation new “the progress improvement required advancing to succeed from a probationary firefighter firefighter.” “[t]o submitted affidavit which stated best of my recollection, Falls, employed including no one at the of Great *6 Jewett, Ramona my ever told me that as a status employee beyond my could be extended first six months of employment.” by Hunter, This affirmatively statement does not which testimony meet the of Young, affidavit Jewett and is not sufficient question create a material fact as City of to whether satisfied the Whidden that it probationary period condition define the at outset of the employment relationship. Moreover, Hunter argue does not appeal material precluded summary judgment. that a issue fact above, For the reasons City ¶21 stated we conclude the defined the probationary period at the outset of its employment relationship with Hunter and met its showing burden of that a was in effect at time of discharge. Hunter’s We hold that the District Court in granting summary that, did not err judgment on the basis a probationary employee, Hunter is not entitled to relief under the Act. Did District in granting summary judgment ¶22 Court err on the basis that Hunter is not entitled to relief under 1983? § provides any person ¶23 Section 1983 civil redress for “under deprived any statute, ordinance, custom, color of regulation, usage, any any rights, State ... privileges, or immunities secured deprived by Constitution and laws ....” Persons have who been government agents process employment of due in the termination of may they protected property be entitled relief under 1983 if have a § employment. Mysse v. Martens (1996), interest contends his termination violated his rights civil by depriving protected property under 1983 him of a § interest and procedural without substantive due process. premise Tne fundamental 1983 claim that he was §

not a employee at the time his basis, On that he asserts entitlement to the benefit of our terminated. Whidden holding that, 39-2-904(2), plain meaning under the of discharge employee good cause employer an period. Whidden, See 21. Because have outside the we at time of his concluded Hunter was does termination, premise evaporates. 1983 claim Nor which, authority under as a Hunter advance other employee, employment. Consequently, has a in his property interest post-Whidden, whether, argument address his we need not Trustees, Big on Medicine Horse relying the District Court erred in Sch. overruled (1991), County Horn Dist. P.2d Whidden, part summary granting hold the Court did not err in We District probationary employee, as a Hunter is not judgment on the basis entitled to relief under § Affirmed. COTTER, LEAPHART and concur.

JUSTICES NELSON specially concurring. RICE JUSTICE holding herein, I under a different concur with the Court’s rationale. government, City of Great Falls has a charter form The self-governing system City in 1986. VI

adopting the Article administration, city government requires Charter establishes confers Manager, Commission to hire a whom Charter including suspension authority, appointment, executive 4(1), VI, Charter. city employees. removal of Article subject departments administrative which are Charter also establishes including City’s *7 City Manager, and of supervision to the control Charter, VI, 5, City and Fire Article Section Ordinance Department. Hirose, thereto, appointed and Fire Chief James 2.16.060. Pursuant Policy Department a Fire by City Manager, adopted supervised I to be herein. Manual, provisions of which find determinative XI, of Constitution authorizes Section 5 the Montana Article ¶29 provides: and self-government municipalities, adoption of charters (3) executive, legislative, and establishing provisions Charter to superior organization are administrative structure and statutory provisions. [Emphasis added.] this of previous interpretation our accordance with ¶30 governing City’s provisions manual provision, policy constitutional 7-33-4122, firefighters superseded § and of promotion advancement Billings (1991), 248 811 P.2d City Woods MCA. In of power which city provision repair we found that a charter vested to superseded city sidewalks administrator Citing city regulate repair which authorized councils to and sidewalks. XI, superiority of held provision Article Section we that: delegation responsibility repairs The charter’s ofthe for sidewalk City superior ability to the Administrator is to the statute’s grant power repairs City such to the Council.

Woods, 258, 811 Applying 248 Mont. at P.2d at 536. the same rationale matter, delegation I to this conclude Charter’s of fire department Manager, requirements administration to the and thereto, pursuant are to the promotion adopted superior provisions §7-33-4122, of MCA. City’s promotion requirements provide candidate Firefighter” experience

“confirmed must have “at least” six of months firefighter, additionally, as a must have written recommendations Chief, supervisor from the first line and the Battalion and must also pass examination, written requirements. City to other addition Firefighter Policy, 4,1995. adopted Promotion December Pursuant requirements, I these must conclude that Hunter did not progress beyond probationary status, subject and was at will termination employment. of his reasons, For these I affirm the District Court. dissenting.

JUSTICE TRIEWEILER majority I dissent from Opinion which first cites the correct rule of construction and completely ignores then it as aswell controlling precedent Falls, Thompson Hobbs v. 2000 MT Instead, the majority Opinion adds language engages which is not there game deny Kelly semantics to day Hunter his in court. 39-2-904(l)(b), MCA, Section provides:

(1) discharge wrongful A only if:

(b) discharge was not cause the employee has completed employer’s probationary period employment', [Emphasis added.] Kelly case, In this Department with the Great Falls Fire statute. established 7-33-4122, MCA, provides part in relevant that: - Term of appointment period. Each shall made for a probationary be first term of months, mayor or manager and thereafter the nominate *8 commission, appoint with the consent the counsel such or firefighters, respective ... who shall thereafter hold their appointments during good they and while have the behavior ability perform added.] to physical [Emphasis their duties. 7-33-4122, MCA, clearly establishes a six-month firefighters. probationary period employment It does by majority a “minimum term” establish six-month as stated the direct language The added of its majority contravention earlier admonition that: statute,

Moreover, construing job simply a our ‘is to ascertain therein, and decide what in terms or substance contained and MCA. not to insert what has been omitted....’ Section Majority Opinion at ¶ Hobbs, by Thompson In plaintiff had been hired 29, 1996,

Falls as a officer on November and was terminated police 15,1997. that he year agreed more than a later on December The had been cause contended he had not terminated without The court he was completed probationary period. his district concluded the time employee still a at of his termination because force. yet permanent police had not confirmed a member of the been Opinion, otherwise. stated that because We concluded we Wrongful discharge of an Discharge Employment prohibits From good following probationary period cause police because limits officer’s year, by city council or to not more than one confirmation following one-year period without commission cannot be denied Hobbs, good cause. majority The states there is a “crucial difference” between applying police officers statutes

firefighters. majority The statute which concludes because period for a pertains police provides officers year” pertaining more and the statute employment of “not than months,” “probationary term of 6 provides months. actually can more than six firefighter’s period be provides the statute majority impressed is not fact that nothing period probationary employment other than six-month fire Instead, majority about local firefighters. talks “confirmed promotion manual department’s policy However, relate to whether firefighter.” simply criteria those past be should extended following completion of good termination whether there is cause for probationary period. case, In tbás employed Hunter was past probationary period and whether there was cause for his question determination is a of fact which has not been decided *9 Furthermore, District Court. law, where inconsistent statutory with local administrative rules are preempted. Therefore, I find nothing persuasive about the majority’s discussion of Great Falls Fire Department’s policy manual. Aside from disregard its law and precedent,

majority Opinion great does harm to the substantive rights provided to employees under Montana law. Montana law as set forth in the Wrongful Discharge Employment from clearly intends that employers employees be allowed to hire during a probationary period without commitment and during time, the employer right retain the to terminate employee with or without cause. However, employer once an has made a decision to employee retain an past period, clearly Montana law prohibits terminating good cause. If employers are allowed to extend period beyond agreed what is with the employee at the outset of beyond what is permitted by statute, then the statutory meaningless scheme is protective purpose Wrongful Discharge Employment From Act can be circumvented at will. For these same reasons, I conclude that Hunter a property had

interest which could not be denied without due process of law. Therefore, I dissent majority from the Opinion. I would reverse summary judgment order of the District Court and remand this

case to the District Court for proceedings further to determine whether there cause for Hunter’s termination from employment with the Great Falls Fire Department. joins

JUSTICE REGNIER in the foregoing dissent.