                                         No. DA 06-0343

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2007 MT 144N

                                                   ____________________________________

JOHN W. RAMER,

              Plaintiff and Appellant,

         v.

CITY OF BILLINGS,

              Defendant, Respondent and
              Cross-Appellant.

                                                   ____________________________________


APPEAL FROM:         District Court of the Thirteenth Judicial District,
                     In and for the County of Yellowstone, Cause No. DV 04-1263,
                     The Honorable Gregory R. Todd, Presiding Judge.


COUNSEL OF RECORD:

              For Appellant:

                     Mary Ann Sutton, Attorney at Law, Missoula, Montana
                     Jeffrey A. Simkovic, Simkovic Law Firm, Billings, Montana

              For Respondent:

                     Harlan B. Krough and Michael E. Begley, Moulton, Bellingham, Longo &
                     Mather, P.C., Billings, Montana
                                                  ____________________________________

                                                          Submitted on Briefs: April 25, 2007

                                                                     Decided: June 12, 2007

Filed:

                   _____________________________________________
                                       Clerk
Justice Brian Morris delivered the Opinion of the Court.

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

Operating Rules, as amended in 2003, the following memorandum decision shall not be

cited as precedent. It shall be filed as a public document with the Clerk of the Supreme

Court and its case title, Supreme Court cause number, and disposition shall be included in

this Court’s quarterly list of noncitable cases published in the Pacific Reporter and

Montana Reports.

¶2    Appellant John W. Ramer (Ramer) appeals from the District Court’s order

granting summary judgment to the City of Billings (City) in his age discrimination

complaint. The City has filed a cross-appeal from the District Court’s order denying its

motion for summary judgment on its claim that Ramer’s action is time barred. We affirm

the District Court’s order granting summary judgment to the City and do not reach the

City’s cross-appeal.

¶3    Ramer worked for the City for almost 18 years in the Public Utilities Department.

He applied for a promotion at age 58 to a Senior Equipment Operator position. Ramer

and five other candidates took a written test, and the City designated a four-member

committee that interviewed each candidate. The committee unanimously chose another

person as the successful candidate.

¶4    Ramer filed a complaint with the Human Rights Commission and with the Equal

Employment Opportunity Commission (EEOC). Ramer was unsuccessful before the

Human Rights Commission and the EEOC. He filed an action in District Court, but not

before the time ran for filing the petition for judicial review of the Human Rights

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Commission’s decision. The District Court dismissed this portion of his claim. The

District Court did allow Ramer to proceed with his age discrimination claim under the

Age Discrimination and Employment Act, 29 U.S.C.A. §§ 621-634 (ADEA). The court

rejected the City’s motion for summary judgment that Ramer’s ADEA claim also was

time barred.

¶5    The District Court granted the City’s later motion for summary judgment on the

grounds that Ramer had failed to make out a prima facie case of age discrimination under

the ADEA. In particular, the court determined that Ramer had admitted, as a matter of

law, that the selection committee did not intend to discriminate against him. The court

explained that Ramer had failed to respond to the City’s M. R. Civ. P. 36(a) request that

he “[a]dmit that none of the four (4) individuals on the selection hiring committee

intended to discriminate against [him].” Ramer appeals.

¶6    We review de novo a district court’s decision to grant summary judgment, based

upon the same criteria applied by the district court. Hardy v. Vision Service Plan, 2005

MT 232, ¶ 10, 328 Mont. 385, ¶ 10, 120 P.3d 402, ¶ 10. We must determine whether the

court correctly found that no genuine issues of material fact existed and whether the court

applied the law correctly. Hardy, ¶ 10.

¶7    At the outset, we note that Ramer offers no explanation or counter argument to the

court’s conclusion that he admitted that the committee lacked discriminatory intent.

Ramer carries the “ultimate burden of persuading the trier of fact that the defendant

intentionally discriminated against [him] . . . .” Texas Dept. of Community Affairs v.

Burdine, 450 U.S. 248, 253 (1981). Yet Ramer has admitted, as a matter of law, that the

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committee acted without discriminatory intent.          We have repeatedly held that

“admissions obtained by way of [M. R. Civ. P. 36] may demonstrate that there is no

genuine issue of material fact, justifying entry of summary judgment . . . .” Spooner

Const. & Tree Service v. Maner, 2000 MT 161, ¶ 37, 300 Mont. 268, ¶ 37, 3 P.3d 641, ¶

37. In light of his admission, Ramer cannot possibly create a genuine issue of material

fact as to whether the City acted with discriminatory intent. Hardy, ¶ 10.

¶8     We have determined to decide this case pursuant to Section I, Paragraph 3(d), of

our 1996 Internal Operating Rules, as amended in 2003, which provides for

memorandum opinions. It is manifest on the face of the briefs and record before us that

no genuine issue of material fact exists. It is also manifest on the face of the briefs and

record before us that settled Montana law clearly controls the legal issues and the District

Court correctly interpreted the law.

¶9     We affirm.

                                                 /S/ BRIAN MORRIS


We Concur:

/S/ JOHN WARNER
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ JIM RICE




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