                                          No. 02-073

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2002 MT 292N


DEBRAH CARBERY,

              Plaintiff and Appellant,

         v.

TUNDRA HOLDINGS, INC.,

              Defendant and Respondent.




APPEAL FROM:         District Court of the Eighteenth Judicial District,
                     In and for the County of Gallatin,
                     The Honorable Mike Salvagni, Judge presiding.



COUNSEL OF RECORD:

              For Appellant:

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

              For Respondent:

                     Bill Hanson, Bozeman, Montana



                                                             Submitted on Briefs: May 23, 2002

                                                                   Decided: December 12, 2002
Filed:



                     __________________________________________
                                       Clerk
Justice Patricia O. Cotter 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 but 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     Upon termination of her employment, Appellant Debrah Carbery

filed a complaint against her former employer, Respondent Tundra

Holdings, Inc., in the Eighteenth Judicial District Court, Gallatin

County, to recover allegedly unpaid wages and benefits.                                   The

District Court entered summary judgment in favor of Tundra and

Carbery appeals.          We affirm.

¶3     The sole issue on appeal is whether the District Court erred

when it granted Tundra’s motion for summary judgment.
                       FACTUAL AND PROCEDURAL BACKGROUND

¶4     On   October      23,     2000,     Carbery      began     working      for    Tundra
Holdings, Inc., as a communications coordinator.                          On October 24,

2000, Carbery signed an employment agreement which memorialized the

verbal employment arrangements.               Among other things, the employment

agreement      outlined      the    policy      for    accrued     vacation       time    and

employment related benefits.                 As to vacation time, Carbery was

entitled to “[o]ne week during year one and two weeks per year

thereafter.”        Carbery’s benefits package included participation in



                                              2
a group health insurance plan, an annual performance-based bonus,

and “an annual 5-day paid trip to Scott Lake Lodge.”

¶5    During her first week of work, Carbery received a check for

$430.19, the equivalent of one week’s salary.                Throughout the

following weeks, on November 4 and 18, 2000,                Carbery received

biweekly checks in the amount of $860.38.         However, on November 22,

2000, Tundra’s vice president terminated Carbery’s employment.

Following termination, Carbery received a check from Tundra in the

amount of $1290.57 which accounted for her final week of work and a

“two-week severance pay.”         The parties appear to agree that Carbery

received the equivalent of an eight-week salary for approximately

four weeks worth of work.
¶6    Following her termination, Carbery demanded compensation for

the   one   week   of   accrued    vacation   time,   and   either   specific

performance or the monetary value of the five-day paid trip to

Scott Lake Lodge.       Initially, Tundra rejected Carbery’s demands.

Tundra ultimately made the Scott Lake Lodge available to Carbery as

discussed in greater detail below.         However, on February 20, 2001,

Carbery filed a complaint against Tundra in the District Court.

The complaint alleged that Tundra “did not pay Debrah Carbery all

her regular wages or fringe benefits,” in violation of the federal

Fair Labor Standards Act of 1938 and Montana’s Wage and Wage

Protection provisions at § 39-3-101, et seq., MCA.            Carbery sought

to recover the alleged unpaid wages and benefits, liquidated

damages, and costs and fees incurred in filing the action.




                                       3
¶7     On July 25, 2001, Tundra filed a motion for summary judgment

on the grounds that it “performed any and all contract duties it

conceivably had to Carbery.”                  Following a hearing on Tundra’s

motion, the District Court concluded that Carbery failed to present

any material facts to support her contention that Tundra withheld

the alleged compensation and benefits.                  Therefore, on December 12,

2001, the District Court granted Tundra’s motion for summary

judgment and dismissed Carbery’s complaint with prejudice.                         Carbery

appeals the order of the District Court.
                                 STANDARD OF REVIEW

¶8     We review a district court’s grant of summary judgment de novo and employ the same

Rule 56, M.R.Civ.P., analysis as the district court. Sleath v. West Mont Home Health

Services, 2000 MT 381, ¶ 19, 304 Mont. 1, ¶ 19, 16 P.3d 1042, ¶ 19. In Sleath, ¶ 19, we set

forth our inquiry as follows:

       The movant must demonstrate that no genuine issues of material fact exist.
       Once this has been accomplished, the burden then shifts to the non-moving
       party to prove, by more than mere denial and speculation, that a genuine issue
       does exist. Having determined that genuine issues of fact do not exist, the
       court must then determine whether the moving party is entitled to judgment as
       a matter of law. We review the legal determinations made by a district court as
       to whether the court erred.

                                      DISCUSSION

¶9     Did the District Court err when it granted Tundra’s motion for

summary judgment?

¶10    Carbery maintains that Tundra has an absolute obligation to

pay to her the wages and fringe benefits as delineated in the

employment agreement.           Specifically, Carbery seeks recovery of one

                                             4
week of paid vacation and a five-day paid trip to Scott Lake Lodge.

 Carbery acknowledges that she worked for Tundra for approximately

four weeks and, yet, received the equivalent of an eight-week

salary.    However, Carbery argues that a portion of the additional

monies constituted a “gift of two weeks severance pay . . . [for]

prematurely terminat[ing] Debrah Carbery’s employment.”                   Carbery

contends    that    Tundra    never    intended      the   additional    money    to

constitute compensation for her accrued vacation time.                  Therefore,

according to Carbery, Tundra remains indebted to Carbery in the

amount of her unpaid vacation time.            As to the trip, Carbery admits

receiving a Scott Lake Lodge invitation from Tundra following her

termination.        However,     Carbery      insists      that   the   offer    was

unreasonable and that she had to incur unnecessary legal fees to

induce the offer.
¶11   Carbery cites the federal Fair Labor Standards Act of 1938,

generally,    and   §   39-3-205,     MCA,     for   the   proposition    that    an

employee is entitled to any unpaid wages and benefits immediately

upon separation from employment.             Carbery does not dispute the fact

that Tundra immediately tendered $1290.57 to her upon termination.

 Nor does Carbery dispute the fact that she received the equivalent

of an eight-week salary for approximately four weeks worth of

employment.    However, Carbery disputes the characterization of the

additional money as compensation for her accrued vacation time.

Instead, Carbery insists that the extra money was a gift, or a

severance     package,       which    Tundra     customarily      bestowed      upon

terminated employees.


                                         5
¶12   To determine whether Carbery was entitled to vacation pay, we

must look to the terms of the employment agreement.                  See Langager

v. Crazy Creek Products, Inc., 1998 MT 44, ¶ 26, 287 Mont. 445, ¶

26, 954 P.2d 1169, ¶ 26.        The employment agreement simply provides,

“Vacation:   One     week   during   year     one   and    two    weeks    per   year

thereafter.”       The agreement remains silent as to when this benefit

vests in a prospective employee.            Although Tundra contends it never

intended the interpretation proposed by Carbery, it concedes that,

pursuant to the language in the agreement, entitlement to the

vacation pay vested in Carbery upon commencement of her employment.
¶13   Therefore, Tundra acknowledges its obligation to reimburse

Carbery for the vacation pay.          Tundra notes that one week of paid

vacation equates to $430.19.           As indicated above, both parties

agree that Carbery received payment in excess of the work she

performed.     Tundra insists that these excess payments more than

satisfied    its    “vacation   pay”   obligation         under   the     employment

agreement.     However, Carbery argues that the conditional severance

package should not relieve Tundra of its obligation to reimburse

Carbery for her accrued annual leave.

¶14   The employment agreement contains no reference to a severance

package upon termination.        Therefore, Tundra was not contractually

obligated to issue such a package to Carbery.                In theory, Carbery

could raise genuine issues of fact regarding purported negotiations

for the severance package sufficient to avoid summary judgment.

However, by Carbery’s own admission, the severance package simply

accounted for two weeks of the four-week excess pay.                      Even if we


                                        6
discount the severance package, the value of the residuary amount

paid to Carbery still exceeds the value of one week of paid

vacation.   Since she in fact received a sum equal to and exceeding

the value of one week’s paid vacation, Carbery did not present any

genuine issues of material fact that Tundra failed to pay her the

vacation pay.

¶15   As for the trip to Scott Lake Lodge, Tundra’s president signed

and mailed the following letter to Carbery on February 12, 2001:

      Our letter agreement of October 12, 2000 states with
      respect to “Benefits,” in part, “an annual 5-day paid
      trip to Scott Lake Lodge.”        While it was not my
      subjective intention to bind the company to provide such
      a trip to an employee who is terminated in the first two
      months of her employment, I can understand your position.
      Accordingly, this is to let you know that Tundra Holdings
      will provide you a 5-day trip to the Lodge. The dates we
      have open for you right now are August 20-25 and August
      25-30. Please contact me at your earliest opportunity to
      confirm which dates you want and to make the necessary
      arrangements for your trip.

In preparation for trial, Tundra deposed Carbery and inquired into

her receipt of the above letter.        At the deposition, Tundra’s

attorney and Carbery engaged in the following colloquy:

      Q: Do you recognize Exhibit 14?

      A: Yes, I do, sir.

      Q: And what is Exhibit 14?

      A:thThis is a letter to me from Dale Trapp dated February
      12 shown to me by my attorney.

      . . . .
      Q: Isn’t it true that you have not as of this date
      contacted Mr. Trapp in response to that letter?

      . . . .

      A: I have not.

                                   7
      . . . .

      Q: Isn’t it true, Debrah, that you understand that this
      letter is an invitation for you to contact Mr. Trapp to
      make arrangements for a five-day paid trip to the Great
      Scott Lake Lodge?

      A: My understanding of this letter is that he is honoring
      the employment agreement in respect to benefits which
      includes an annual five-day paid trip to Scott Lake
      Lodge.

      Q: Do you understand from this letter that if you desire
      to take that trip, that it’s necessary for you to contact
      him to make arrangements to go on it?
      A: I understand that.

      Q: Okay. And, again, just to clarify, you have not done
      that yet, you have not done that as of today?

      A: I have not.

¶16   In her complaint, Carbery stated that “Tundra Holdings failed

to pay Debrah Carbery the . . . fringe benefits to which she was

entitled     under   the   written   compensation   agreement . . .      .”

However, the above testimony contradicts this very proposition.

Carbery admits in her deposition that Tundra extended the offer in

an effort to “honor[] the employment agreement in respect to

benefits.”      On   appeal,   Carbery   claims   that   Tundra   made   an

unreasonable offer only after she obtained the services of counsel.

 However, Carbery never attempted to contact Tundra in response to

the offer.    For the foregoing reasons, we conclude that Carbery has

not presented any genuine issues of material fact to support her

contention that Tundra failed to provide her with the fringe

benefits as prescribed in the employment agreement.         Accordingly,




                                          8
we hold that the District Court did not err when it granted

Tundra’s motion for summary judgment.

¶17   Affirmed.

                                        /S/ PATRICIA COTTER


We Concur:


/S/ KARLA M. GRAY
/S/ TERRY N. TRIEWEILER
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART




                                9
