                                          No. 03-666

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2004 MT 96N



KELLIE STAFFORD,

              Plaintiff and Appellant,

         v.

STATE OF MONTANA, and its
DEPARTMENT OF CORRECTIONS,

              Defendants and Respondents.




APPEAL FROM:         District Court of the Eighteenth Judicial District,
                     In and For the County of Gallatin, Cause No. DV-02-369
                     Honorable Kurt Krueger, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Geoffrey C. Angel; Angel Law Firm, Bozeman, Montana

              For Respondents:

                     Michael R. King, Risk Management & Tort Defense Division
                     Department of Administration, Helena, Montana




                                                  Submitted on Briefs: February 3, 2004

                                                             Decided: April 16, 2004


Filed:

                     __________________________________________
                                       Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.



¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal

Operating Rules, the following decision shall not be cited as precedent. It shall be filed as

a public document with the Clerk of the Supreme Court and shall be reported by case title,

Supreme Court cause number and result to the State Reporter Publishing Company and to

West Group in the quarterly table of noncitable cases issued by this Court.

¶2     Kellie Stafford appeals from the order entered by the Eighteenth Judicial District

Court, Gallatin County, granting summary judgment to the State of Montana and its

Department of Corrections (DOC) (collectively, the State). We affirm.

¶3     The restated issues on appeal are:

¶4     1.     Did the District Court err in concluding a discharged probationary employee

may not recover under the Wrongful Discharge from Employment Act when a collective

bargaining agreement with her employer provided that “[n]o permanent employee shall be

disciplined or discharged except for just cause”?

¶5     2.     Did the District Court err in concluding Stafford could not recover under a

theory of negligent hiring, retention and supervision?

¶6     3.     Did the District Court abuse its discretion when, after the summary judgment

hearing, it allowed the State to file an affidavit and did not rule on Stafford’s written motions

to file her deposition and to depose an additional witness?




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                                    BACKGROUND

¶7    Stafford was hired as a treatment court officer in the Bozeman probation and parole

office. Mary Fay, the Chief of the Probation and Parole Bureau for the Adult Community

Corrections Division of the DOC, wrote Stafford a letter informing her that she would have

a training assignment for the first year of her employment and that “[a]s a Probation and

Parole Officer, [she was] covered under the Montana Federation of Probation and Parole

Local 4464” (the union). The union and the State had executed a collective bargaining

agreement (CBA), in which the State recognized the union “as the sole and exclusive

bargaining agent for all probation and parole officers. . . .” The CBA provides that “[n]o

permanent employee shall be disciplined or discharged except for just cause.”

¶8    Before Stafford completed the probationary period of her employment, Ron Alsbury,

the Region II Administrator of the DOC Adult Community Corrections Division notified her

in a letter dated October 19, 2001, that she had been discharged. The discharge occurred

after a hearing which Stafford attended with her union representative, Steve Ette, and her

attorney. Stafford subsequently sued the State, alleging that her discharge violated the

Wrongful Discharge from Employment Act (WDEA) and, alternatively, that the discharge

resulted from the DOC’s negligent hiring, retention and supervision of its employees.

¶9    The State moved for summary judgment, Stafford responded, and the District Court

scheduled a hearing. After the hearing, the State moved to supplement the record by filing

an affidavit of DOC Fiscal Bureau Chief Rhonda Schaffer, and the District Court granted the

motion. Five days later, Stafford filed a brief opposing the State’s motion. She also filed


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two motions–one to depose Ette to obtain “rebuttal evidence” pursuant to Rule 56(f),

M.R.Civ.P., and one to file her deposition. The State did not object to Stafford’s motion to

file her deposition, but opposed her motion to depose Ette. The District Court did not

address Stafford’s objection to the filing of Schaffer’s affidavit and did not rule on Stafford’s

motions.

¶10    Subsequently, the District Court granted summary judgment to the State. Stafford

appeals.

                                STANDARDS OF REVIEW

¶11    We review de novo a district court’s grant of summary judgment under Rule 56(c),

M.R.Civ.P., to determine whether genuine issues of material fact exist and whether the

district court correctly concluded the moving party is entitled to judgment as a matter of law.

Bartlett v. Allstate Ins. Co. (1996), 280 Mont. 63, 68, 929 P.2d 227, 230 (citations omitted).

We review a district court’s rulings on discovery, including those on motions under Rule

56(f), M.R.Civ.P., for abuse of discretion. Environmental Contractors, LLC v. Moon, 1999

MT 178, ¶ 19, 295 Mont. 268, ¶ 19, 983 P.2d 390, ¶ 19 (citations omitted).

                                        DISCUSSION

¶12 1.        Did the District Court err in concluding a discharged probationary
employee may not recover under the WDEA when a CBA with her employer provided
that “[n]o permanent employee shall be disciplined or discharged except for just cause”?

¶13    Except as provided therein, the WDEA provides the exclusive remedy for a wrongful

discharge from employment. Section 39-2-902, MCA (2001). The WDEA does not apply

to a discharge “of an employee covered by a written collective bargaining agreement. . . .”

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Section 39-2-912(2), MCA (2001); Winslow v. Montana Rail Link, Inc., 2000 MT 292, ¶ 21,

302 Mont. 289, ¶ 21, 16 P.3d 992, ¶ 21. Collective bargaining agreements are statutorily

authorized, and public employers and union representatives acting in good faith are free to

negotiate their terms. Sections 39-31-305 and -306, MCA; LaFournaise v. Montana

Developmental Center, 2003 MT 240, ¶ 17, 317 Mont. 283, ¶ 17, 77 P.3d 202, ¶ 17.

¶14   Stafford argues the District Court erred in concluding she was covered by the CBA

and not entitled to relief under the WDEA. She posits the CBA only protects permanent

employees from discharge without cause and she could not file a grievance under the CBA

during her probationary period. In other words, Stafford equates the lack of a remedy

pursuant to the CBA to a lack of “coverage” by the CBA. In short, she contends that, absent

a remedy under the CBA, the WDEA applies.

¶15   In support, Stafford relies on a dictionary definition of “cover” as “to protect by

means of insurance.” See Black’s Law Dictionary 365 (6th ed. 1990). This definition has

no application in the collective bargaining context. Before Stafford began her employment,

she received a letter informing her that she was covered by the CBA. The union and the

DOC had bargained to limit protections against wrongful discharge to permanent employees

and not to extend those protections to probationary employees. Stafford had other rights

under the CBA, one of which she exercised by having a union representative attend the

hearing before her termination.




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¶16    Under these facts and the plain language of § 39-2-912(2), MCA (2001), we conclude

the District Court did not err in determining Stafford was covered by the CBA and the

WDEA did not apply.

¶17 2.       Did the District Court err in concluding Stafford could not recover under
a theory of negligent hiring, retention and supervision?

¶18    Stafford argues the District Court erred in determining that the CBA precluded her

negligence claim. The District Court reasoned that the CBA created an at-will employment

for probationary employees, and the DOC could not have been negligent because it “could

fire Stafford for any reason, or no reason at all.”

¶19    Stafford first contends the CBA could not create an at-will employment, because the

WDEA supercedes the common law doctrine of at-will employment.                   Given the

circumstances of this case, we disagree.

¶20    Section 39-2-904(2)(a), MCA (2001), which was in effect at the time of Stafford’s

discharge, provides that “[d]uring a probationary period of employment, the employment

may be terminated at the will of either the employer or the employee on notice to the other

for any reason or for no reason.” Stated differently, the WDEA permits a probationary

employee to be fired at the will of an employer. Therefore, we reject Stafford’s argument

that the 2001 WDEA superceded at-will employment for probationary employees.

¶21    Alternatively, Stafford asserts that even if the CBA created an at-will employment,

the DOC could not “fire Stafford for an otherwise unlawful reason, i.e. due to the negligent

conduct of its employees.” She relies on Pablo v. Moore, 2000 MT 48, 298 Mont. 393, 995



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P.2d 460, in support of her position that we have recognized the tort of negligent hiring,

retention and supervision. Our discussion of that theory in Pablo was in the context of an

insurance coverage dispute stemming from a motor vehicle accident and was limited to

whether the policy excluded the alleged tort; we held that it did not. Pablo, ¶¶ 5, 19-25.

Pablo provides no support for Stafford’s argument in this case involving the WDEA and a

CBA.

¶22    Stafford further asserts that no Montana case other than Pablo has addressed the tort

of negligent hiring, retention and supervision. She distinguishes the present case from one

advanced by the State, but this distinction does not meet Stafford’s burden of establishing

error by the District Court. See, e.g., Hawkins v. Harney, 2003 MT 58, ¶ 35, 314 Mont. 384,

¶ 35, 66 P.3d 305, ¶ 35 (citation omitted); In re Marriage of Burk, 2002 MT 173, ¶ 16, 310

Mont. 498, ¶ 16, 51 P.3d 1149, ¶ 16 (citation omitted). Simply put, Stafford presents no

legal rationale or authorities which support this argument.

¶23    In discussing the negligence claim in her reply brief, Stafford contends that collective

bargaining agreements are “covered by the National Labor Relations Act” and advances a

case in support of that contention. Rule 23(c), M.R.App.P., requires a reply brief to be

confined to new matter raised in the respondent’s brief. Sherrard v. Prewett, 2001 MT 228,

¶ 20, 306 Mont. 511, ¶ 20, 36 P.3d 378, ¶ 20 (citation omitted). Because the State did not

raise the federal act in its response brief, we decline to address this argument.




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¶24    We hold Stafford has failed to meet her burden of establishing error in the District

Court’s conclusion that she could not recover under a theory of negligent hiring, retention

and supervision.

¶25   3.      Did the District Court abuse its discretion when, after the summary
judgment hearing, it allowed the State to file an affidavit and did not rule on Stafford’s
motions to file her deposition and to depose an additional witness?

       a. State’s Motion to Supplement Record with Schaffer’s Affidavit

¶26    Stafford contends the District Court abused its discretion in allowing the State to file

Schaffer’s affidavit after the summary judgment hearing. She relies on Rules 56(a) and (c),

M.R.Civ.P., which provide, in pertinent part, that a party may move for summary judgment

“with or without supporting affidavits” and must serve the motion “at least 10 days before

the time fixed for the hearing.” This argument is without merit because Rule 56(a),

M.R.Civ.P., addresses only motions by claimants. In any event, however, it is undisputed

that the State filed its summary judgment motion and supporting affidavits more than 10 days

before the hearing. Rules 56(a) and (c), M.R.Civ.P., are of no help to Stafford.

¶27    Stafford also argues the State “first raised” the issue of her payment of union dues as

“a new disputed issue of fact” through “[t]he testimony of counsel for the [DOC]” at the

summary judgment hearing and the subsequent Schaffer affidavit. Because Stafford failed

to submit a transcript of the summary judgment hearing, as required by Rules 9 and 10,

M.R.App.P., we cannot adequately review this argument, and the detriment to our review is

attributed to Stafford. See, Springer v. Becker (1997), 284 Mont. 267, 273, 949 P.2d 641,

644; Huffine v. Boylan (1989), 239 Mont. 515, 517, 782 P.2d 77, 78. At the bottom line, the

                                              8
record before us strongly suggests that the dues issue was irrelevant and the District Court

did not rely on the Schaffer affidavit. On the record before us, we conclude the District

Court did not abuse its discretion in admitting the affidavit.

        b. Stafford’s Motion to Depose Ette

¶28     Stafford also contends the District Court abused its discretion in denying her motion

to depose Ette after the hearing pursuant to Rule 56(f), M.R.Civ.P., which reads as follows:

        Should it appear from the affidavits of a party opposing the motion that the
        party cannot for reasons stated present by affidavit facts essential to justify the
        party’s opposition, the court may refuse the application for judgment or may
        order a continuance to permit affidavits to be obtained or depositions to be
        taken or discovery to be had or may make such other order as is just.

Rule 56(f), M.R.Civ.P., clearly contemplates pre-hearing affidavits to the effect that more

discovery is needed to oppose a summary judgment motion. Here, however, Stafford did not

even submit an affidavit establishing the necessity of Ette’s deposition, as required by the

Rule. See Disler v. Ford Motor Credit Co., 2000 MT 304, ¶ 12, 302 Mont. 391, ¶ 12, 15

P.3d 864, ¶ 12. Her motion merely speculated about Ette’s testimony. Therefore, the

District Court did not abuse its discretion in failing to rule on Stafford’s motion to depose

Ette.

        c. Stafford’s Motion to File Her Deposition

¶29     Finally, Stafford contends the District Court abused its discretion in failing to rule on

her post-hearing motion to file her deposition. She asserts that, because the State attached

limited excerpts of the deposition to its summary judgment brief, she is entitled to have the

court consider all portions of the deposition and attached exhibits. Stafford’s general


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premise is correct. See Rule 32(a)(4), M.R.Civ.P. However, Stafford fails to specify which

portions of her deposition would have been relevant to the dispositive issue of her coverage

under the CBA. Moreover, during the briefing on summary judgment, she referenced only

those parts of her deposition and deposition exhibits submitted by the State. Because

Stafford had ample opportunity to request leave to file her deposition, we conclude the

District Court did not abuse its discretion in failing to rule on Stafford’s written motion to

file her deposition.

¶30    In summary, we hold the District Court correctly determined Stafford could not

recover under the WDEA. We also hold Stafford failed to establish that the District Court

erred in concluding the CBA precluded her negligence claim. Finally, we hold that neither

the post-hearing admission of a supplemental affidavit nor the failure to rule on Stafford’s

post-hearing motions constituted an abuse of discretion.

¶31    Affirmed.

                                                         /S/ KARLA M. GRAY



We concur:


/S/ JAMES C. NELSON
/S/ PATRICIA O. COTTER
/S/ JIM REGNIER
/S/ JIM RICE




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