                             No. 94-547
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                1995


GEORGE D. TYNER,
          Plaintiff and Appellant,
     v.
PARK COUNTY, CARLO CIERI,
individually and as employee of
Park County, JAMES HUNT, individually
and as employee of Park County, and
LARRY LOVELY, individually and as
employee of Park County,
          Defendants and Respondents.



APPEAL FROM:   District Court of the Sixth Judicial District,
               In and for the County of Park,
               The Honorable Roy C. Rodeghiero, Judge presiding


COUNSEL OF RECORD:
          For Appellant:
               Mark L. Guenther and David Barnhill, Nash, Guenther
               and Zimmer, Bozeman, Montana
          For Respondents:
               Norman H. Grosfield, Utick & Grosfield, Helena,
               Montana


                              Submitted on Briefs:   April 27, 1995
                                          Decided:   June 19, 1995
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.

        George D. Tyner (Tyner)          appeals the decision of the Sixth
Judicial District Court, Park County, granting defendants' motion

for a directed verdict            on his civil rights claim.          Tyner   also

appeals the jury verdict finding that he was wrongfully discharged

but awarding zero damages.           We affirm.

        The issues are:

        1.    Did the District Court err in granting defendants' motion

for a directed verdict?

        2.     Did the jury err in awarding Tyner zero damages on his

wrongful discharge claim?

        Tyner went to work for the Park County Road Department in May

1990.        His duties included maintenance, machinery operation, and

general labor.           The Road Department supervisor was        Denis Brandon.

Tyner successfully completed a six-month probationary period, after

which he received a pay increase.
        In    February   1992, Tyner received a "payroll transfer," whereby

he received his pay from the Incinerator Department rather than

from the Road Department.          Park County officials testified that the

payroll       transfer     was   merely a     cooperative,    resource-sharing

maneuver enabling the Incinerator Department to help pay for work

done on its machinery by Tyner and other Road Department employees.

Tyner testified that he believed that the payroll transfer was in

fact a promotion that would result in more authority, increased pay

and more direct contact with the Incinerator Department.                Following

the     payroll    transfer,     Tyner   continued   to   report    to the Road


                                          2
Department and received his work assignments from Brandon.       Tyner
received an increase in pay for one month following the transfer.

The raise was subsequently rescinded.          Park County officials
informed Tyner that the raise was not in the budget.

        On December 9, 1992, Tyner reported to the Road Department for

work.      At approximately 7:00 a.m., Brandon delivered the work

assignments for the day.      Tyner was assigned to hard-face grader

blades.     Tyner testified that he put on his coveralls, proceeded to

the welding area and began preparing the grader blades for welding.

As he prepared to weld,      he noticed his welding face shield was

dirty.     He walked toward the parts room to get a towel or rag to

clean the shield.

        On his way to the parts room he stopped in the Road Department

office and placed a call to Lawrence Oset, supervisor of the County

Landfill.     The previous day Tyner had worked at the landfill for

Oset,    welding on a new shed being built there.   Tyner claimed that
Oset asked him to call to determine if Oset needed him at the

landfill again on December 9.       Oset does not recall whether he

asked Tyner to call that morning.       Oset told Tyner they would not

be working on the shed due to inclement weather.
        Tyner testified that Brandon entered the office and told him

he was not to use the telephone.           Tyner left the office and

proceeded to the parts room.       While Tyner was in the parts room

looking for a rag,      Brandon came in and again confronted Tyner

concerning his use of the telephone.     Brandon told Tyner he was not

to receive personal calls on the office phone and that the use of

                                    3
the phone was disruptive to the operation of the shop.                    Brandon
stood in the only doorway to the parts                room and continued to
criticize Tyner's work.        Tyner stepped toward Brandon, placed his

hands on Brandon's         chest and pushed him through the doorway.

Brandon did not fall to the ground, but was pushed back several

feet.     Immediately after the push, Tyner claims Brandon          stated that

"this little incident will cost you your job."

        Brandon claims that he did not follow Tyner from the office to

the parts room.          Rather,   shortly   after   Tyner   left   the   office,

Brandon observed he was not at the welding table and went looking

for him.        He found Tyner in the parts room.      He asked Tyner why he

had called Oset.       Tyner told him he called to ask Oset if he needed

him to weld at the landfill.          Brandon told Tyner that he had been

assigned his work order for the day and that was to perform hard-

face welding on the grader blades.              It was at this point Tyner

pushed Brandon through the doorway.

        Tyner    and Brandon   disagree concerning exactly how far away

Tyner was when he stepped toward Brandon and the force of the push.

Following the incident, Tyner requested a meeting with the County

Commissioners.

        Brandon called commissioners Carlo Cieri and James Hunt.              The

third commissioner, Larry Lovely, was not reached by telephone and

only learned of the meeting upon arriving at work.
        At approximately 8:00 a.m. on December 9, Brandon and Tyner

met   with Cieri, Hunt and Lovely.          The meeting lasted approximately

thirty    minutes.      Brandon and Tyner each told the commissioners

                                        4
their version of the incident.                   The   commissioners     considered
Brandon's and Tyner's stories to be sufficiently similar to make

further investigation of the incident unnecessary.                  Tyner admitted
that, following an argument with Brandon,              he pushed him through the
doorway.    After the meeting, Tyner and Brandon returned to work at

the county shop.

      Following the meeting with Brandon and Tyner, the commission-

ers met with the Park County Attorney for approximately thirty

minutes.     The     county     attorney       informed    the    commissioners   that

discipline for pushing a superior could range from a written letter

of reprimand to termination.

      The county commissioners decided to terminate Tyner based on

their meeting with Brandon         and Tyner and their meeting with the

county attorney.       Tyner was terminated on December 9, the same day

the   pushing   incident      occurred.        Following   oral   notification      of

termination,       Tyner requested and received a written letter of

termination.

      Tyner filed a complaint against Park County and the commis-

sioners individually in the Sixth Judicial District Court, Park

County.    The complaint alleged violation of Tyner's civil rights in

violation of 42 U.S.C 5 1983 and wrongful discharge in violation of

Montana's Wrongful Discharge              from   Employment Act,       §§ 39-2-901

through    -915,    MCA.   At    trial    after     Tyner's    case-in-chief,      the

District Court granted defendants' motion for a directed verdict

on the civil rights claim.          Following trial,          the jury found that

Tyner had been wrongfully discharged from his employment; however,

                                           5
the jury went on to conclude that Tyner suffered zero damages as a

result of the wrongful termination.

                                     Issue 1

      Did the District Court err in granting defendants' motion for

a directed verdict on Tyner's civil rights claim?

      We have recently set forth our standard of review of a

district court's granting of a directed verdict as follows:

      [This Court] looks to see if the evidence leads to only
      one conclusion.   "If only one conclusion is reasonably
      proper, then the directed verdict is proper." [Citations
      omitted.]   A directed verdict is properly granted when
      the "evidence is so insufficient in fact to be insuffi-
      cient in law."

Westfork Const. Co. v. Nelcon,        Inc. (1994), 265 Mont. 398, 401, 877

P.2d 481,* 483.

      Tyner argues that the pushing incident was merely a pretext

for firing him and the underlying reason for his termination

stemmed from constitutionally-protected statements he had made in

the   past.      Tyner's   civil rights claim is based on two main

allegations.

      First,    Tyner points out that he ran for county commissioner

against   the    incumbent   commissioner      James   Hunt.   Hunt and Tyner

finished first and second out of four candidates in the primary

election.      Tyner,   therefore,   earned the right to run against Hunt

in the general election.             Tyner ran on a platform advocating

improved county roads and increased communication between the

public and the county commissioners.            Hunt defeated Tyner by a wide

margin.       Tyner was terminated approximately one month after the

general election.        Tyner argues that his running against Hunt for

                                        6
county commissioner and the statements he made during the campaign

were motivating factors in his termination.

     Tyner's second allegation stems             from comments he made to

commissioner Cieri concerning a sewer treatment plant in Cardiner,

Montana.      Tyner had observed the construction of the sewer

treatment plant and specifically the settling ponds.                    Tyner told

Cieri that he believed someone was getting paid off in connection

with the job.        Tyner believed that the construction was of

substandard    quality   and    was   taking   much    longer    than   necessary.

Tyner did not repeat these allegations to anyone but Cieri.                  Cieri

testified     that he did not         recall a        conversation      with Tyner

concerning the construction of the sewer plant.                 Tyner claims that

his discharge was motivated by his comments to Cieri concerning the

construction of the sewer plant.

     The defendants deny any motivation for terminating Tyner other

than his pushing Brandon.          The commissioners told Tyner at their

meeting that pushing a supervisor was a firing offense.                   The Park

County Attorney concurred that the incident was sufficient grounds

for termination.

     To prevail on his civil rights claim, Tyner was required to

prove that his constitutionally-protected speech was a substantial

or motivating factor for his termination.               Mt. Healthy City Board

of Ed. v. Doyle (19771,        429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.Zd 471.

In granting defendants' motion for a directed verdict, the District

Court found that Tyner had not presented any evidence that he was

discharged for any reason other than pushing Brandon.

                                         7
     While determinations of motive are generally questions of fact

reserved for the jury, when only one conclusion can reasonably be

derived from the evidence presented, a directed verdict is proper.

Semenza v. Leitzke (1988), 232 Mont. 15, 18, 754 P.2d 509, 511.

     Tyner's evidence consists of the fact that he ran for county

commissioner    against    commissioner       Hunt.     During the campaign, he

made remarks critical of the operation of Park County government.

Tyner also alleges that he confronted commissioner Cieri concerning

the construction of the Gardiner sewer treatment plant.
     While     the    parties      do   not   contest    the   constitutionally-

protected    nature   of   these    activities,       Tyner has failed to link

these activities to his discharge.               Tyner cites Ware v. Unified

School Dist. (10th Cir. 1989),           881 F.2d 906, for the proposition

that a reasonable inference can be drawn from the fact that the

reasons given for the discharge are unsupported by the evidence.

Tyner further argues that because the jury found that he was

wrongfully discharged pursuant to Montana's Wrongful Discharge From

Employment Act, the reasons given for his discharge were unsupport-

ed by the evidence.

     We disagree with Tyner's argument.               While the jury found that

Tyner was discharged in violation of Montana's Wrongful Discharge

From Employment Act,       such a finding does not address the motiva-

tions behind the firing.        The evidence presented at trial concern-

ing Tyner's wrongful discharge claim focused on the procedure by

which the commissioners fired Tyner,              not their motivation.      The

evidence revealed that Park County did not have a written employ-

                                          8
ment manual,     Tyner had an excellent employment record prior to

December    9,   and other employees      received less discipline for
similar conduct.

     While the procedure the commissioners followed in terminating

Tyner came under      strict   scrutiny   during   trial,   the   motivating
factor was clear.     The commissioners, in their meeting with Tyner,

in their meeting with the Park County Attorney, in their letter of

termination and at trial,        uniformly    indicated that Tyner      was

discharged because he pushed Brandon.        Tyner presented no evidence

to link his discharge to the statements he had made.              Tyner and

commissioner Hunt testified that their campaign was an amicable one

that Hunt easily won.          Tyner presented nothing but his own

speculation and conjecture to connect his campaign for county

commissioner with his discharge.

     Likewise,    Tyner has not tied his discharge to the statements

he made to commissioner Cieri concerning the Gardiner treatment

plant.     Cieri testified that he did not even remember the conversa-

tion taking place.      Tyner testified that he did not discuss his

concerns over the treatment plant with anyone else.

     We hold that Tyner failed to present sufficient evidence by

which a jury could conclude that Tyner's speech was a substantial

or motivating factor in his discharge.        We therefore conclude that

the District Court properly granted defendants'              motion for a

directed verdict.
                                   Issue 2
        Did the jury err in awarding Tyner zero damages on his

wrongful discharge claim?

        Following    trial,   the jury determined that Tyner had been

wrongfully discharged in violation of Montana's Wrongful Discharge

From    Employment    Act.    The jury went on to award zero damages.

Tyner argues that he is entitled to a new trial on the issue of

damages because the jury verdict was not supported by substantial

evidence.

        In affirming an award of zero damages in a wrongful discharge

case,    we stated in Dawson v. Billings Gazette (19861, 223 Mont.

415,    726 P.2d 826:

        The jury decides what evidence to accept and what
        evidence to reject.



               "In considering a motion for new trial, the trial
        court is not to weigh the evidence where conflicting
        evidence is presented.     Yerkich v. Opsta (1978), 176
        Mont. 272, 274, 577 P.2d 857, 859.     Rather, the trial
        court's discretion to grant a new trial for insufficiency
        of the evidence is exhausted when it finds substantial
        evidence to support the verdict. [Citations omitted.]
        Where conflicting evidence is present, it is an abuse of
        the trial court's discretion to grant a new trial.
         [Citation omitted. 1 We will not substitute our view of
        the evidence for that of the jury where that evidence
        furnishes reasonable grounds for different conclusions."

Dawson,    726 P.2d at 828-29.

        Section 39-2-905, MCA, sets forth the damages available for a

wrongful discharge claim as follows:
        [T]he employee may be awarded lost wages and fringe
        benefits for a period not to exceed 4 years from the date
        of discharge, together with interest thereon.     Interim
        earnings, including amounts the employee could have

                                      10
     earned with reasonable diligence, must be deducted from
     the amount awarded for lost wages. . .

     Defendants presented evidence of mitigating factors to offset

Tyner's damage claim.       First,   Tyner was unemployed for only five

months,    approximately four months after his discharge and an

approximately     one-month layoff after finding new employment.

Second,    Tyner turned down an employment opportunity during the

period after      his discharge before accepting new employment.

Finally,   his new employment was at a higher wage than he earned

while working for Park County.

     Defendants    presented   sufficient   evidence   to   justify   a   zero

damage award.     We conclude that the jury verdict was supported by

substantial     evidence.   We therefore affirm the decision of the

District Court.




                                              Chief Justice


We concur:
                                                June 19. 1995

                                        CERTIFICATE OF SERVICE

      I hereby certify that the following certified order was sent by United States mail, prepaid, to the
      following named:


      Mark L. Guenthe c, Esq. & David Barnhill, Esq.
      Nash, Guenther 8 i Ziier
      P.O. Box 1330
      Bozeman, MT 5! )771-1330
F

      Norman H. Grosf ield, Esq.
    Utick 8-z Grosfiek I
      P.O. Box 512
                       u-051 3
      Helena, MT ~596~. ____

                                                           ED SMITH
                                                           CLERK OF THE SUPREME COURT
                                                           STATE OF MONTANA

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