INDIANS: County lacks jurisdiction to grant proposed RV park access over street in the former Big Arm townsite on Flathead Reservation… Christensen.

Lori Lundeen owns 40 acres bordering the western boundary of the former Big Arm townsite, which she hopes to develop as an RV park. With the blessing of Lake Co. Board of Commissioners she began constructing a road through Big Arm, connecting a gravel road, 7th St., with her property. She has asserted that an alternate route from a private road outside the townsite — Walking Horse Lane — is financially infeasible. Her road follows the rough contours of E St. as it was platted in 1913. E St. borders Blocks 17 & 30. Block 17 is the site of the former Big Arm school, patented to the County in 1918. No lots in Block 18 were sold, so the entire block was restored to the Confederated Salish & Kootenai Tribes. Lundeen applied to the County for a permit. Although Tribal representatives raised concerns about access to the RV park through Big Arm, the Board issued its conditional approval of Wild Horse RV Resort Subdivision in 5/18, and Lundeen began advertising for the RV park and commenced construction of the road. On 5/13/19 the Tribes placed a gate blocking access to her lot from 7th St. and BIA issued a notice of trespass to Sandry Const. The Tribes brought this action seeking a declaratory judgment “quieting [their] beneficial interest to the real property, including streets, alleys, and public reserves (held in trust by the United States for the benefit of the [Tribes]) in the Big Arm Townsite and determining that Defendants have no right, title, or interest in or to the real property or any public right of way.”

I. Title was not transferred.

The Tribes’ primary argument is that there was no transfer of title to the roadways. Defendants argue that the County holds title to the roadways depicted on the 1913 plat — or at minimum, that the Tribes no longer hold title. Thus the Court considers whether title is retained by the US in trust for the Tribes or was transferred through the Flathead Allotment Act or the 1906 appropriations bill rider. There is no question that from the time of the Hell Gate Treaty in 1855 through the platting of Big Arm, title was held by the US in trust for the Tribes and that the US remained trustee throughout the period of allotment. Indeed, the Flathead Allotment Act provides that “the United States shall act as trustee for said Indians to dispose of said lands and to expend and pay over the proceeds received from the sale thereof only as received.” Because the US had no obligation to sell reservation lands under the Flathead Allotment Act, there could be no transfer of title with the passage of that law. And the majority of the lots in Big Arm were never sold. If title to the Big Arm roadways had been transferred, the transfer must have occurred when the plat was issued in 1913. Indeed, this is the crux of Defendants’ argument — that because Congress authorized the sale of individual lots, it also authorized the dedication of the streets to public use, and such dedication actually occurred when the townsite was platted — “to hold otherwise would be illogical because nobody would purchase a lot in a townsite without access.” However, tribal lands cannot be divested by implication. “The whole purpose of trust land is the protection of land from unauthorized alienation.” Imperial Granite (9th Cir. 1991). Thus “only Congress can divest a reservation of its land and diminish its boundaries.” Solem (US 1984). “Once a block of land is set aside for an Indian Reservation and no matter what happens to the title of individual plots within the area, the entire block retains its reservation status until Congress explicitly indicates otherwise.” Id.

The Flathead Reservation was not diminished by the Flathead Allotment Act or the related 1906 townsite-specific legislation. Solem explored the distinction between “those surplus land acts that diminished reservations and those acts that simply offered non-Indians the opportunity to purchase land within established reservation boundaries.” Congress must “clearly evince an ‘intent to change boundaries’ before diminishment will be found.” Id.; Kneip (US 1977).

Although “explicit language of cession and unconditional compensation are not prerequisites for a finding of diminishment,” they are the most important factors. Id. Neither is found here. The Flathead Allotment Act provides that the US was to remain as trustee and had no obligation to sell the surveyed lands. Compensation was not “unconditional” but was tied to sale of lots; if the lots did not sell there was no transfer of land and money. Congress did not clearly intend to diminish the Reservation, and creation of the 1913 plat did not by itself remove the lands from tribal control.

II. Lake Co. does not have jurisdiction to unilaterally construct a new road in Big Arm.

The County and Lundeen argued that the County has jurisdiction over the roadways, even if it does not have title. Their position relies heavily on letters between Interior officials discussing jurisdiction over roads throughout Indian country. They contend that the agency materials nearly unanimously demonstrate “the ‘general rule of law’ that ‘approval of a townsite plat by the Secretary of the Interior, in accordance with law and sale of lots thereunder constitutes a dedication to public use of the streets and alleys shown on the plat without the necessity of special words of dedication on the plat.'” It is true that administrators’ “manner in dealing with unalotted lands” “has some evidentiary value.” Solem. However, Defendants’ reliance on such materials is misplaced for several reasons.

First, the materials do not constitute factual evidence. The officers repeat, often verbatim, the same general legal opinion that a platted street is dedicated to public use, but they give no attribution for that opinion outside of other Interior letters and memoranda. The Court cannot accept this ipse dixit simply because it appears to have been popular among many Interior officials in the early and mid-20th Century. What is more, some of the statements are plainly incorrect. For example, one letter states that “when an area is platted and recorded, the streets, alleys, and other public use areas are no longer considered property of the United States or subject to the administrative jurisdiction of the Secretary of the Interior.” But we know that this cannot be true in Big Arm because the US remained as trustee and had no obligation to sell lands under the Flathead Allotment Act.

Second, the record is not “unanimous.” For example, Defendants rely on statements by Field Solicitor Roy Allan in 1960. But he also wrote in 1957: “There is nothing in the [Flathead surplus land acts] by which the Congress has authorized the title in the United States in the streets, roads, etc., in unincorporated townsites and villa sites on the Flathead reservation to be transferred to anyone.” And that opinion was repeated in other agency materials throughout the years. Where administrative materials are “rife with contradictions and inconsistencies,” they can “be of no help to either side.” Solem.

Third, the materials do not hold the meaning attributed to them by Defendants. It is not merely the platting of a townsite that dedicates the roadways to public use, but the platting and subsequent sale of lots. The officials’ approach is functional, tying jurisdiction over public use areas to residents’ status as tribal members or non-Indian county residents. For example, the author of a 1960 letter directed toward “restoration to tribal ownership of streets, alleys and public reserves” in 2 other Flathead Reservation townsites explained that owners of lots adjacent to the roadways must petition under Montana law for abandonment of the roadways. Defendants claim that these letters support Court jurisdiction over the roadways in Big Arm, but they say only that a county road remains a county road unless and until the appropriate legal procedures are followed to abandon it.

The opinions in Defendants’ exhibits are indifferent to the precise question here — jurisdiction to build a previously undeveloped road through what is today tribal land. Tellingly, one letter includes language (ignored by Defendants) puzzling through that issue: “Restoration of unused dedicated areas to tribal ownership simultaneous with the restoration of undisposed lots would, if possible, be desirable.” Another official wrote that “when [platted roads] are no longer used for [a public purpose], they revert to tribal jurisdiction.” Like the other Interior communications, they are not particularly persuasive but they show that even this relatively weak authority does not support Defendants’ position.

In more practical terms, it hardly makes sense that a 100+-year-old plat, which marks long-abandoned plans and a rightfully discarded assimilationist policy, can give a county authority to unilaterally approve a new road through tribal land today. The parties do not discuss extensively the effect of the restoration of most of the lots in Big Arm to tribal ownership, but withdrawal of lots from the townsite in 1930 and 1956 is significant. Solem (considering “on a more pragmatic level,” “who actually moved onto opened reservation lands”).

Lake Co. and Lundeen argue that it defies logic to open up lots for sale to non-Indians but not authorize local road construction. The Court does not necessary disagree. Here, though, their logic works against them because the adjacent lots have been restored to tribal control; if a county has jurisdiction over roads in a non-Indian townsite, then surely the tribal government is entitled to the same treatment. In fact, it is highly unlikely that Lake Co. truly wants jurisdiction over the roadways in Big Arm to the degree that jurisdiction brings attendant governmental responsibilities — which by all accounts the tribal government is performing. All Lake Co. appears to want is to allow Lundeen to build an access road in the location most convenient for her business.

If Defendants seek to build a road in Big Arm, there is a procedure through which individuals and state and local governments may petition to develop roadways through Indian country. “The Secretary of the Interior is authorized to grant permission, upon compliance with such requirements as he may deem necessary, to the proper State or local authorities for the opening and establishment of public highways through any Indian reservation.” 25 USC 311. Today, a state or local government must submit a thorough application to BIA to establish a road under §311. 25 CFR 169.102. While the “requirements deemed necessary” have changed over the years, there is no dispute that the US has not given permission to Lake Co. and/or Lundeen to construct E St. In fact, she does not even seek permission from the US or the Tribes. There may have been a time when Lake Co. (or its predecessor Flathead Co.) could have developed E. St. However, assuming that it once had that authority, it did not develop the roadway during that time. The question now is whether Lundeen and Lake Co. can build a road through tribal lands today without first filing a petition to the US or even seeking permission from the Tribes. The statutes, administrative materials, and historical record give a clear answer: No.

Although the determination that Lake Co. lacks jurisdiction over E St. is dispositive, the Court considers the balance of Defendants’ arguments, and concludes that the Hell Gate and Lame Bull treaties do not give the County an unrestricted right to build roads through the Reservation and the Tribes’ win in a 1971 Court of Claims case in which they were compensated $6,066,668.78 for the Big Arm townsite does not foreclose this litigation under principles of claim preclusion, issue preclusion, estoppel, and payment/accord & satisfaction.

Confederated Salish & Kootenai Tribes v. Lake Co. Board of Commissioners and Lundeen, 44 MFR 223, 4/16/20.

James Goetz (Goetz, Baldwin & Geddes), Bozeman, and Daniel Decker, John Harrison, and Shane Morigeau (CSKT Legal Dept.) for CSKT; Dep. Lake Co. Atty. Walter Congdon and Deana Bennett, Spencer Edelman, and Luke Holmen (Modrall Sperling), Albuquerque, for the Commissioners; J.R. Casillas & Jenna Lyons (Datsopoulos, MacDonald & Lind), Missoula, for Lundeen.

RAILROADS: Engineer properly terminated for speeding, not in retaliation for being outspoken advocate of predictive scheduling to alleviate fatigue… Christensen.

BNSF hired Keith Jones as a conductor and engineer in 2006. His employment ended in 2010 but he was rehired in 2/11. He was diagnosed with sleep apnea prior to his first term of employment, and BN was aware of his diagnosis when he was rehired. During the summer of 2016 his sleep deteriorated. He saw Pat Burns of Glacier Headache & Sleep Medicine, who recommended a new sleep study to ensure that his CPAP was operating properly. In response to Jones’s request that Burns support his claim for medical leave, Burns also noted his concern that — as reported by Jones — BN’s scheduling practices may not sufficiently accommodate his sleep needs.

In 9/16 Jones had a conversation with superintendent James Pino, which BN describes as a “coaching and counseling” session and Jones classifies as “a talking to” that made him feel “intimidated.” Nevertheless, it is clear that they talked about Pino’s expectations regarding communications with dispatchers. It was prompted by Pino’s understanding that Jones had made “comments to a Dispatcher in a very argumentative way, and then somebody else on the radio responded with like a cat meow, saying wow, and then Jones replied to that and said yep that’s right, Stone is playing games.” (According to Pino, Jones at times refers to himself as “Stone.”) Pino played the conversation to Jones, explaining his expectation that Whitefish crewmembers be respectful even when dispatchers were frustrated, and Jones agreed to act appropriately.

Early the next month Jones submitted several forms documenting his belief that BN’s scheduling increased crew fatigue to the detriment of safety. He turned in Safety Issue Resolution Process forms on 3 different days, writing that “inaccurate line ups contribute to fatigue issues, creating unsafe working conditions.” He submitted a 4th form stating that his safety concern arose from late modifications to his schedule. On 11/2 he filled out a union fatigue monitor. These forms are submitted to the union, which shares the information with FRA and may be used during negotiations.

In the early morning of 11/5/16 Jones was tired, having been called in at 2:45 a.m., well before his scheduled time of 5:25. He arrived less than 17 hours after his last shift, and he had a sinus infection and was unable to get high-quality sleep. At one point after his train left Whitefish it was traveling 5 mph due to fog and a dispatcher, apparently irritated by the slow progress, stated to Jones, “You guys are unbelievable.” The dispatcher notified Jones that the train would be meeting multiple trains at Belton. Jones replied, “You might as well keep us here all night.” The train reached Belton just before 5 a.m. Jones informed the dispatcher that he would take a nap — permitted under BN policy — while waiting for the other trains to pass. When his train was cleared to leave the Belton siding, it resumed east to Essex, where it was again sidelined to allow oncoming trains to pass. Jones informed a dispatcher that he was tired, explained why, and said he would like to take “a nap or two.” The dispatcher informed head of dispatch Chris Lucero of the discussion. Lucero contacted Pino and they decided that Jones and his conductor should be ordered back to Whitefish and replaced by another crew. The train was delayed while the swap occurred.

Jones filled out another fatigue monitor 11/6. Pino called him into his office along with Jones’s union chairman Brent Wetsch and a local chairman from the SMART-TD union. Pino played recordings of the conversations between Jones and the dispatchers and initiated a discussion about whether a disciplinary investigation should be initiated. According to Wetsch, “Pino was the only individual present at the meeting who thought that Jones violated any rules or that a disciplinary investigation should be launched into Jones’s conduct.” On 11/8/16 BN notified Jones of an imminent investigation “for the purpose of ascertaining the facts and determining your responsibility, if any, in connection with your alleged discourteous and quarrelsome behavior including alleged intent to cause train delay” at Whitefish. The investigation was held 1/11/17 after Jones filled out 3 additional fatigue monitors and one SIRP form. Following the hearing, BN imposed a “Level S” (serious) discipline.

On 12/5/16 Jones informed BN that he was not sleeping well and did not feel that he could safely perform his job without seeking medical care. The next day BN wrote him: “You have been removed from service pending an assessment of your fitness for duty. In our conversation you have stated that you do not feel safe to work as you don’t feel that you are getting proper sleep.” Before returning he would need to submit results of a sleep study and 30 days of downloaded information from his CPAP. His CPAP was titrated as a result of the study and his doctor released him for work with no restrictions 1/4/17. He returned, but filled out 4 fatigue monitors and 3 SIRPs in late January and February.

According to Pino, the conductor stated 5/10/17 that he warned Jones of an upcoming 25 mph restriction before leaving to use the restroom, and that when he came out he noted that the speedometer was at 31-32 and he asked Jones if they were in the restricted location and Jones replied, “I don’t know,” and that he began to slow the train. When the conductor asked how fast they had been going, Jones allegedly said, “Don’t worry, we did not go federal.” Jones disputes that he knew of the restriction before entering the zone. The employee who reviewed braking records verified that “heavy dynamic braking” was applied at 36 mph in an effort to slow to the required 25 mph.” BN notified FRA of an event involving speeds of 10+ mph over the limit, resulting in an automatic 30-day suspension of Jones’s engineer certification. The conductor also received a 30-day suspension but he was allowed to return. Jones disputes the determination that the speed was greater than 10 mph over the limit. A formal investigation by Rick Stauffer, Director of Administration for Montana, resulted in a 2nd Level S discipline. Brian Clunn, an executive in BN’s headquarters, reviewed the formal investigation regarding the 5/10/17 event and — because it was Jones’s 2nd Level S and because of the perceived seriousness of the violation — recommended dismissal. Montana manager Jon Gabriel adopted the recommendation. Jones was terminated 7/17/17.

2 other events which do not fit nearly into the above chronology are relevant. In 2014 then-GM Dan Fransen held a town hall for employees at which Jones made a comment about the lack of predictive scheduling and its effect on crew fatigue — the same issue raised in the SIRPs submitted throughout 2016-17. Jones claims that Fransen was extremely upset by his comment. In 6/16, Jones reported an unsanitary bathroom.

Jones sued in 8/18 alleging that his termination was unlawful under the Federal Railroad Safety Act — that BN took adverse actions when it investigated and disciplined him in 1/17 and when it terminated him in 7/17, and that he was fired for reporting conditions causing crew fatigue, seeking treatment for and notifying BN of his sleep apnea, and reporting an unsanitary bathroom. BN requests summary judgment. Jones concedes that he was terminated for having 2 Level-S disciplines, but contends that they were motivated by his “legitimate safety complaints” as to how BN’s policies impacted fatigue. At heart, his claim is that he was an outspoken advocate for predictive scheduling and that BN disciplined and terminated him for that advocacy. He also argues — less vigorously — that he was disciplined for reporting unsanitary bathroom conditions.

I. Jones’s fatigue-related reports.

BN argues that Jones did not report a hazardous safety or security condition because federal law sets the minimum standard for safety and BN met that standard and that his fatigue is largely attributable to his apnea which is not a “hazardous condition” under the FRSA. It contends that he has not established a prima facie case of retaliation, and that it would have terminated him even had he not engaged in protected activity.

The Court disagrees with BN’s theories that he did not engage in protected activity. Other statutory schemes do not preclude this suit, and his complaints are protected under FRSA to the degree that they relate to BN’s scheduling practices. But it agrees with BN on the other points, either of which would be sufficient. BN is entitled to summary judgment because the “circumstances are [not sufficient] to raise the inference that the protected activity (or perception thereof) was a contributing factor in the adverse action.” 29 CFR 1982.104. Moreover, given the decisionmakers’ lack of knowledge of his reports, BN has shown “by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of [the protected activity].” 49 USC 42121(b)(2)(B)(ii).

A. Preclusion.

BN contends that Jones’s fatigue-related complaints are not protected under FRSA because its policies & procedures were consistent with the Hours of Service Act and the Federal Rail Safety Improvement Act. However, the fact that its scheduling practices were allowed under federal law does not mean that Jones was not disciplined for “reporting, in good faith, a hazardous safety or security condition.” 49 USC 20109(b)(A).

B. Hazardous safety conditions.

BN argues that Jones did not engage in protected activity when he filled out safety reports regarding its scheduling practices and fatigue because his own “personal fatigue and non-work-related sleep apnea” are not “hazardous safety conditions” within the meaning of FRSA. The Court agrees that FRSA is indifferent to reports of allegedly unsafe conditions that fall outside a railroad’s control. Hunter (3d Cir. 2016; Williams (SD Miss. 2017) (“Reading the statute to include self-reported illnesses as hazardous safety conditions would expand protected activity to include any ailment, including drunkenness, fatigue, or even personal incompetence, that an employee believes might affect his or her ability to perform the essential functions of the job.”). Thus Jones cannot succeed to the degree that he reported that his apnea made him too tired to safely work. He cannot claim that his conversations with dispatch 11/5/16 were reports of a hazardous safety condition when the hazard was his exhaustion, particularly when that exhaustion was due in large part to not only his apnea but a sinus infection. The Court agrees that BN’s scheduling practices may have worsened his fatigue, but it does not logically follow that he reported its scheduling practices by asserting that he was tired and wanted to nap. However, some of his reports targeted BN’s scheduling practices. He is protected under FRSA for his submission of SIRPs requesting predictive scheduling and discussing fatigue.

C. Prima facie case.

Although Jones did engage in protected activity, the “circumstances [are not] sufficient to raise the inference that the protected activity (or perception thereof) was a contributing factor in the adverse action.” 29 CFR 1982.104. It is true that there is a temporal connection between his altercations with dispatchers 11/5/16 and the investigation, but there is no reason BN should have viewed these conversations as reports of “a hazardous safety or security condition” given that his personal exhaustion is not by itself a safety condition as contemplated by FRSA. He claims that the first dispatcher was openly hostile and that he merely asserted his right to nap while the train was waiting for the tracks, consistent with BN policy. This may be true, but it does not demonstrate retaliation. A railroad may take action against an employee that could conceivably be wrongful under other legal schemes without running aground of FRSA. Koziara (7th Cir. 2016) (FRSA “does not punish railroads for disciplining (including firing) employees unless the discipline is retaliatory.”). There is a factual dispute as to whether Jones was “discourteous and quarrelsome” and acted with the “intent to cause train delay” in violation of BN policy, but the dispute is not material. If there is an inference to be drawn from the crew replacement, it is that BN was legitimately concerned about Jones’s ability to safely operate the train. In any event, the soundness of that decision is not at issue.

Jones argues that retaliation should be inferred from a comment he made in the 2014 town hall when he raised his concern as to the effect of erratic schedules on fatigue, pointing to a declaration from Wetsch that “this event was likely the genesis of BNSF’s retaliatory conduct toward Jones.” He states that Fransen “took Jones out of the safety meeting to chastise him and was openly hostile.” Wetsch’s declaration is the strongest support for Jones’s retaliation claim, but it is not strong enough. There is not even temporal proximity between the 2014 meeting and 2016 disciplinary actions, nor does the record support a finding that Stauffer, the decisionmaker as to Jones’s 1st Level S, was aware of the meeting. And Fransen left BN in 3/17, months before the 2nd Level S action. And even Jones does not argue that the 2nd Level S was not serious enough to warrant a 30-day suspension. He claims that BN may not have done everything in its power to ensure that the speeding was significant enough to mandate its report to regulators. His argument stemming from the speeding is that he would not have been fired had he not already had the 1st Level S on his record. However, because a jury could not conclude that the 1st action was retaliatory, he has not established prima face retaliation under FRSA.

D. Termination in the absence of protected activity.

Summary judgment is alternatively appropriate because the evidence shows that Jones would have been terminated even had he not been an advocate for predictive scheduling. Clunn recommended dismissal and Gabriel adopted it. Nothing in the record supports a finding that they were aware of — let alone relied on — Jones’s reports regarding fatigue.

Jones argues that data regarding similarly situated employees defeats summary judgment on this point. He points to “BNSF comparator data regarding employees charged with violating the same or similar rules as Jones that would have mandated a Level-S incident or review of BNSF comparator data identifying whether or not BNSF employees who received 2 or more Level-S violations were dismissed.” However, where the decisionmakers were unaware of the employee’s safety reports, comparator data is unnecessary and irrelevant. BN does not need to “prove similar or identical issues received the same discipline” because it has proven that Jones’s safety reports did not factor into the decisions to discipline him.

II. Unsanitary bathroom.

Jones also alleges that BN retaliated against him for “reporting a hazardous safety condition of an unsanitary bathroom on a locomotive in or around June 2016.” Assuming that this qualifies as a protected activity under FRSA, he has not established prima facie retaliation. To succeed at step 1 under FRSA, an employee must show that “the circumstances were sufficient to raise the inference that the protected activity (or perception thereof) was a contributing factor in the adverse action.” 29 CFR 1982.104. No such inference is logical here. Jones claims only that a juror could conclude that BN was made aware of the unsanitary bathroom when he reported it to Pino and management employee Brian Scheffield. However, there is no reason to make the jump from them hearing his report and Stauffer’s disciplinary actions 9 months later or Clunn’s and Gabriel’s 6 months after that.

III. Punitives.

Because BN is entitled to summary judgment on Jones’s substantive claims, his claim for punitives necessarily fails.

BN’s motion for summary judgment is granted. All other motions are denied as moot.

Jones v. BNSF, 44 MFR 224, 4/29/20.

William Jungbauer (Yaeger & Jungbauer Barristers), St. Paul, for Jones; Joey Breitenbach, Michelle Friend & Ben Rechtfertig (Hedger Friend), Billings, for BN.

RAILROADS: Engineer’s claim that he was terminated in retaliation for reports of crew fatigue, lack of PTC on train that was in a red block incident, and failure to adequately train conductors rejected on summary judgment… Christensen.

William Vasquez began as a BNSF engineer in 1995 in Whitefish. He was terminated in 1/17 and reinstated in 11/19. In the summer of 2016 he signed a “low performance waiver” acknowledging acceptance of “Level S” (serious) discipline for logging low hours which included 30 days suspension and 3 years probation. His supervisor James Pino suggested that he would not be terminated even if he were to commit a serious offense after signing the waiver, including if he went through an absolute red signal, which requires the train to be stopped before reaching the signal. He reported for work in the early morning of 11/28/16 in Hauser, Idaho. Working along conductor Doug Malley, he noted that they should go no faster than 45 mph due to the cargo load. However, the Positive Train Control was set to 55. Resetting it required coordination with dispatch, and Malley — who as conductor was charged with communicating with the dispatcher — indicated that they were having trouble setting the system up. The dispatcher instructed Malley that they could leave without engaging PTC. Although Malley initially agreed, Vasquez was concerned, and they attempted to reengage dispatch several times without success. The train left the yard without PTC engaged at 5:25 a.m. As it approached West Libby early in the afternoon Malley informed Vasquez of a yellow signal, which Vasquez knew meant that the train should be slowed to 30 mph and a red signal may be approaching. BN asserts — and Vasquez disputes — that there was a red signal at the East Libby switch. They passed that signal and continued 2,030 feet before stopping at the Libby Depot. The failure to stop before the red signal triggered an investigation into Vasquez and Malley, as well as Vasquez’s automatic decertification as an engineer by FRA. During the investigation, Vasquez stated that the red block incident would not have occurred had the PTC been engaged which “would have warned me that that signal was coming” or had he been working with “an experienced, qualified conductor” who “would have said something like, red block, red block, you know, or he would have dumped it, or you know, there would have been something there that would have happened,” adding:

The problem is we’re getting so many new guys out here that I’m familiar with the territory and don’t have, I’m basically up there, not only me, other engineers and the way they’ve got these pools running, people are running this way, going to Spokane and back, they haven’t even been there that much, and basically I’m having to train them as I’m doing my own job, so I’m doing multiple, multiple things up there, but what, guys that aren’t qualified or experienced.

Based in part on Vasquez’s previous conversation with Pino regarding the effect of his earlier Level S discipline, BN offered a waiver, which his union had previously requested. Vasquez testified at his deposition that he understood that he would not be terminated if he signed the waiver, but had nonetheless refused to do so. He was terminated 1/27/17 for his 2nd Level S. The Public Law Board found that less discipline than termination was appropriate, and he was reinstated 11/19/19 without pay for his time out of service. He sued alleging retaliation under the FRSA, which protects employees from adverse employment actions triggered by good faith reports of hazardous safety conditions. He claims that he was not terminated for the 2nd Level S but for his reports of crew fatigue, lack of PTC on the train in the red block incident, and failure to adequately train conductors. BN requests summary judgment as to all 3 reports.

Fatigue.

In the fall of 2016 Vasquez submitted several “wage claim forms” after being called into work early. They are the means by which crewmembers request reclassification of their hours in order to increase their pay. In his comments, his strongest complaint was that BN did “not manage the pool properly” and “back to backed Whitefish crew out of Whitefish to protect Havre jobs.” He did not claim to have been fatigued on these trips, and he did not state that BN’s alleged mismanagement of scheduling caused an unsafe condition. In his Complaint, he did not allege that he was terminated for fatigue reports, nor did he make such an allegation to OSHA in the mandatory administrative proceeding. Indeed, the basis for this claim appears to have arisen nearly a year after he filed this suit, during his 7/24/19 deposition, when he gave his attorney the wage claim forms which he retrieved from a box in his truck. BN argues that it is entitled to summary judgment regarding Vasquez’s fatigue complaints because (1) he failed to exhaust administrative remedies, (2) the decisionmakers who terminated him were not aware of his complaints, (3) he did not engage in a protected activity, and (4) his allegedly protected activities did not contribute to BN’s decision to terminate him. BN is entitled to summary judgment under (1) and (3), either of which would be sufficient, and thus the Court does not reach the other 2 theories.

Failure to exhaust.

Given that the parties were unaware of the basis for Vasquez’s claim regarding crew fatigue prior to 7/19, there can be no dispute that his fatigue-related FRSA claim was not presented to OSHA. The question that remains is legal: must he exhaust administrative remedies as to every alleged protected activity prior to bringing an FRSA action in Federal Court? The Court does not decide that, as a matter of law, a plaintiff can never raise a new theory of retaliation in an FRSA action. However, in this case Vasquez’s failure to bring his safety related claim to OSHA bars its consideration now. Neither OSHA nor BN was “placed on notice that it was required to investigate” BN’s alleged retaliation for his safety complaint. Windom (M.D. Ga. 2013); Bozeman (N.D. Ga. 2006).

Protected activity.

Vasquez did not “report, in good faith, a hazardous safety condition” when he submitted wage claim forms requesting higher pay. 49 USC 20109(b)(A). The Court rejects BN’s theory that FRSA is indifferent to complaints regarding crew fatigue. As addressed at length in Jones v. BNSF (44 MFR 224), federal law does not preclude Vasquez’s retaliation claim when the other statutory schemes governing fatigue — the Hours of Service Act and the Federal Rail Safety Improvement Act — complement rather than override FRSA. Additionally, a request for a change in BN scheduling policy due to fatigue could give rise to a viable claim under FRSA. Here, however, there was no such request. Unlike Jones, Vasquez did not submit a form dedicated to alleging safety issues. He submitted wage claim forms requesting additional pay consistent with the CBA. While he did claim to have been called in early and out of rotation, he never claimed to have been fatigued or raised any safety concerns. No reasonable factfinder could conclude that he reported a hazardous safety condition when he asked for additional pay and neither requested a change in BN policy to protect safety nor suggested that he or any other crewmember had been fatigued.

PTC.

Vasquez claims that he was terminated in retaliation for a complaint regarding PTC on his train. However, he never made a complaint, but merely attempted to reset the PTC. His attempt through Malley to contact dispatch cannot conceivably be understood as a safety complaint.

Training.

Vasquez contends that he was terminated in retaliation for comments during the red block investigation — that conductors had not been adequately trained and he had to train them as he was doing his own job. However, he was not requesting BN to change its policies to improve safety, but suggesting that his workload prevented him from adequately performing his job. Moreover, the investigation was already underway when he made self-serving statements explaining why the event triggering discipline occurred. Nothing suggests that these statements moved the needle one way or the other, particularly in light of BN’s proffered waiver.

Punitives.

Because BN is entitled to summary judgment on Vasquez’s substantive claims, his claim for punitives necessarily fails.

BN’s motion for summary judgment is granted.

Vasquez v. BNSF, 44 MFR 225, 5/29/20.

William Jungbauer (Yaeger & Jungbauer Barristers), St. Paul, for Vasquez; Joey Breitenbach, Michelle Friend & Ben Rechtfertig (Hedger Friend), Billings, for BN.

WRONGFUL DISCHARGE: Fact issues preclude summary judgment as to whether cable manager who was fired after Facebook criticism of Governor was terminated for stated reasons of failing to meet purported 50% travel requirement and allowing an employee to perform unauthorized electrical work… recommendations by Cavan.

Charles Smith was employed in 2012 by Cablevision as regional VP of network management. Charter acquired Cablevision in 7/13 and Smith was VP of Video Operations starting in 7/14. The department split in 5/15 and he became VP of Sustained Video Operations. His 2014 evaluation assigned an overall 3.2 or “Achieved Expected Performance.” He received top scores of 4 in Job Knowledge and Communicates Effectively and a 2 in Develops Relationships. For the 7 remaining categories he received a 3. The evaluation was conducted by his manager Charlotte Field and was issued 10/6/15. 2 days later she issued a corrective action report — or warning — identifying concerns as to effectiveness of his leadership, failure to implement metrics to assess team performance, project completion, and effective communication. His peers conducted an anonymous “360 Review” about this time with positive reviews as well as criticisms. In 5/16 he changed to VP of ISP (Inside Plant) responsible for the Mountain States area.

He was evaluated in 2016 by his new manager Gary Heimstead. He received an overall 3.3 or Achieved Expected Performance. He received a top rating of 4 in 3 categories and 3 in 6 categories. “Top three areas for development” included improving the sense of urgency within management at all levels, ensuring proper documentation of network and network services, and spending more time in the field and meeting people face-to-face. Shortly thereafter Heimstead issued a corrective action notice listing 4 deficiencies, which he eventually resolved without further disciplinary action.

Smith took time off in 7/17 for a church mission to Honduras to help disabled and disadvantaged children and mothers. It was intended to be for 2 weeks but he was injured and hospitalized for 10 days. After a life flight to Miami he spent another 14 days in the hospital. The time was classified as FMLA leave. In 10/17, during his recovery, he posted a comment on Facebook from his private account: “Cut the Helena fat and stop playing games Governor. No program is going to make little disabled kids more intelligent. Cut the feel good nonsense and govern.” Another Facebook participant shared the post, resulting in complaints and media directed at Charter. Smith felt that it was taken out of context but deleted it at Charter’s request. The parties dispute whether he violated Charter’s social media policy or code of conduct. HR Senior Manager Stephanie Gainous attests that he was suspended for 2 weeks without pay and given a final written warning in lieu of termination. Smith disputes that termination was on the table because his right to free speech was implicated.

He returned to work 11/20/17 but was terminated 1/29/18 for 2 stated reasons: (1) “knowingly allowing Duan Auge to continue performing as a management Area Critical Infrastructure Engineer after his position was changed to an ISP II Engineer” and (2) “in December 2017, you failed to fulfill the 50% travel requirement to your management area.” Smith sued in Yellowstone Co. State Court in 3/18 alleging wrongful discharge. Charter removed to this Court and requests summary judgment.

Smith alleges that his discharge was wrongful for lack of good cause under MCA 39-2-904(1)(b). He also stated a claim under 904(1)(c) that Charter violated its personnel policy, but withdrew this claim after Charter moved for summary judgment.)

Smith argues that fact questions exist as to whether Charter had good cause to terminate him under MCA 39-2-904(1)(b). First, he asserts that Auge was not performing electrical work and was instructed along with all staff on numerous occasions that it was prohibited. Second, he contends that substantial evidence shows that there was no 50% travel requirement during 2017 and points to the handbook which only required quarterly visits to his sites. Third, he asserts that the evidence shows that he was terminated because of his Facebook post, constituting pretext. Fourth, he argues that prior work records, evaluations, and corrective action reports referenced in Charter’s arguments were resolved and not related to the stated reasons for discharge and are thus irrelevant to the determination of “good cause.”

Charter states that Smith was discharged “after years of documented performance issues, pervasive morale issues in the area under his supervision, and multiple specific and plain violations of Company policy in the months leading up to his termination.” It reasons that “the cumulative effect of these deficiencies paint a clear picture: Mr. Smith was disengaged as a leader, lacked control over his department, demonstrated poor judgment, and failed despite multiple chances to effectively manage his employees. Thus it advances his entire work record as cumulative evidence of “good cause” beyond the reasons set forth in his final corrective action reports.

In general, “reasons for discharge other than those set forth in a discharge letter are irrelevant, and thus inadmissible.” McConkey (Mont. 2005). Charter argues that this rule only concerns MCA 39-2-801, the “blacklisting statute,” and not the WDEA. The Court disagrees. Galbreath (Mont. 1995) adopted the rule confining termination reasons to those stated in discharge letters from §39-2-801 and applied it to straight WDEA claims. Nevertheless, additional evidence offered to substantiate the reasons given in a termination letter is relevant and admissible. Jarvenpaa (Mont. 1998). Therefore the Court will confine its determination of good cause to the reasons set forth in Smith’s termination letter, together with any relevant evidence that may substantiate those reasons.

Charter asserts that it “discovered Mr. Auge, an engineer reporting to Mr. Smith, had for years been performing unauthorized electrical” work. It proffers an email from Auge to Smith and Auge’s manager Walt Jones to show that he “had always performed electrical work for Charter,” along with Smith’s and Jones’s depositions. Smith disagrees that Auge was performing electrical work and that Auge’s email established that he had always performed it and argues that his and Jones’s depositions contradict Charter’s contention, resulting in a material fact issue. He also points to Jones’s testimony that this policy was not put in place until sometime in 2017 or 2018, and there is no evidence that Auge performed electrical work after then.

There are fact issues as to whether Auge was performing unauthorized electrical work, and thus fact issues as to whether this constituted good cause for Smith’s termination. First, Charter’s reliance on Auge’s email as proof that he “had always performed electrical work for Charter” is unavailing. Auge had been an employee of Charter and Cablevision since 2013 and his email outlines his apparent dissatisfaction with his assignment to a new position as a “headend tech.” He states that “I was hired as an electrician” and outlines certain “perks” that he had “as an electrician for this company.” He also expresses concerns with being “on call” in context of his past & current positions versus the proposed new position and with his job duty changes and his qualifications. The varying content of the email disputes Charter’s final corrective action reporting holding Smith accountable for Auge, who “has not been working in his role as assigned to him in 8/20/13.” Clearly, Auge has not held the same position or title since 8/13. He held multiple positions and was unhappy with Charter’s view of his “on call” responsibilities as he changed from an electrician to Critical Infrastructure Engineer to ISP Engineer to headend tech. That Auge styles himself as an “electrician” or that he was hired as an electrician falls far short of demonstrating that he was actually performing the unauthorized work of an electrician during the relevant period, much less with Smith’s authorization. The manner in which he perceives his trade is not the same as the actual tasks he performed during a specific period when a specific policy limiting electrical work was in place. Smith forwarded Auge’s email to Gainous and Heimstead, suggesting that Auge “has said a few things which are very troubling.” What is “troubling,” however, is unclear. Is it that Auge styled himself an electrician, that he felt unqualified, or that he refuses to work nights and be on call? The email lacks clarity, as Auge discusses multiple topics, positions, and tasks.

Second, Charter relies on Smith’s deposition testimony that unauthorized electrical work was “dangerous” and “a liability for the company,” that he was surprised at Auge’s level of discomfort as an ISP Engineer, and that Smith was ultimately responsible for his market area. But none of this supports Charter’s position that Auge was performing unauthorized electrical work or that Smith knew that he was doing so. Indeed, Smith explained in his deposition the difference between a critical service engineer and a headend tech — the former was involved with overseeing and reviewing electrical work while the latter “wire RF equipment … phone lines to modems … low-voltage Ethernet stuff.” Drawing inference in the non-moving party’s favor, a juror could find that Auge’s use of the title “electrician” was a generic trade reference despite his title/position changing over time, because he still worked with electricity, either through oversight or wiring “low-voltage Ethernet stuff.”

Third, Charter’s reliance on Jones’s deposition only creates more ambiguity. It cites it as “describing the electrical work that Mr. Auge reported performing at Charter.” However, in reviewing its cite in full, Jones appears to be describing Auge’s responsibilities, but like Auge’s email, there is no clear timeline that clarifies his positions and responsibilities in context of Smith’s management or alleged knowledge of Auge’s alleged unauthorized electrical work. Smith proffers a fuller version of Jones’s deposition, which shows that Auge’s duties excluded electrical work at the time he was moved to a headend engineer position in the “‘2017 slash’ 18 time frame,” around the time that Auge wrote his 12/17 email. Jones testifies that he could not recall the specific date when the policy to have vendors perform electrical work was implemented, but it was in the “2017/2018 time frame.” Without evidence establishing that a policy barring electrical work was in place at the specific time that Auge performed specifically identified electrical work with Smith’s knowledge, fact issues remain as to when Auge’s positions changed, when the policy was implicated, Auge’s performance of unauthorized electrical duties after policy implementation, and Smith’s knowledge of Auge’s performance of unauthorized electrical work. A jury could determine that the reason given for Smith’s termination was false, arbitrary, or capricious and unrelated to the needs of the business. There are material fact issues as to whether Charter had good cause to terminate Smith for “knowingly allowing Duane Auge to continue performing as a management Area Critical Infrastructure Engineer after his position was changed to an ISP II Engineer.

The 2nd stated reason for discharge in Smith’s final corrective action reads:

In December 2017, you failed to fulfill the 50% travel requirement to your management area. You completed 5% travel. Dan did not inform Gary Heimstead, Regional VP, ISP, of any reason he was not able to fulfill this requirement.

Charter argues that 50% travel was “an express job requirement,” repeatedly communicated to Smith. Smith responds that there was no 50% travel requirement.

Heimstead, Smith’s supervisor, testified that there was a directive which required 50% travel for himself and Smith starting “around February of 2017.” He could not remember if it was announced in an email but testified that it “came up” in a meeting in 2/17. Heimstead’s supervisor Thomas Gaebel testified that a high degree of travel was required for a leadership presence in the field “at around 50% as a target to achieve.” But his testimony does not identify to whom the requirement applied or when it was announced or implemented.

Charter also points to Smith’s 2017 performance review which states a “need to get in front of employees more” and “spend more time in the field and meet face to face with the people.” It also relies on Gainous’s declaration that she spoke with Smith on the phone before he returned to work after his injury regarding any accommodations he may need: “Specifically, I wanted to confirm that he was able to travel at least 50% of the time, which was a requirement of the role of a VP, ISP.” She declares that he told her he was “able to travel 50% of the time, and that the only accommodation he needed was to be able to stop and stretch from time to time.”

Charter also proffers a follow-up email chain between Gainous and Heimstead (and others) regarding her call with Smith. In the most recent email of the chain she represents to Heimstead that Smith said that “he is able to drive 50% of the time to visit his sites.” The preceding email from Heimstead to Gainous questions whether he can drive, explaining: “He’s required to do site visits 50% of the time. If he can do that, I’m fine, if not he can’t perform his job functions.”

Finally, Charter asserts that Smith’s travel requirement was set forth in his ADA Job Description and Essential Functions form which included a “physical demands” requirement that he be able to drive “frequently,” which is defined as 46-100%.

While some of Charter’s proffered evidence is probative of a policy to encourage management to travel to sites under their responsibility, none establishes an absence of material fact as to the specific requirements of its policy.

First, Charter’s reliance on the ADA form is entirely unpersuasive. Neither the “position summary” nor the “essential duties and responsibilities” identifies a travel requirement. “Driving (for work)” is itemized under “Physical Demands” and provides that an employee must be capable of driving 46-100% of the time. But the form also includes other functions that Smith must be capable of performing including the ability to read, see, sit, stand, walk, and type 46-100%. Obviously an employee would not be able to simultaneously perform each of these functions 46-100% of the time. The form plainly does not purport to require that Smith actually perform all the listed functions for the percentages of time indicated; it simply requires that he be capable of performing them for that duration if required to do so. His position could physically demand that he drive 46-100%, nothing more.

The 2017 Performance Review and Gainous-Heimstead emails may provide evidence that Charter can rely on to support its position at trial, but fall far short of establishing absence of material fact issues regarding its travel requirement. The Performance Review, for example, undoubtedly encourages Smith to travel more, get out in the field, and meet with his employees, but it does not establish or reference a specific travel requirement. In context, they appear to be a discussion of whether Smith could perform the essential functions of his position as outlined in the ADA job description or whether an accommodation was required under the ADA.

While this evidence may be used to support Charter’s claim of an individual travel requirement, Smith responds with evidence that tends to negate the alleged 50% requirement. He points to Charter’s “ISP Playbook” which he contends governed job requirements for ISP employees. The Playbook in effect for 2017 only required site visits quarterly for Smith’s position. The 2018 Playbook was amended to provide a 50% requirement. But the stated reason for Smith’s termination relating to travel is confined to 12/17 when the 50% policy had yet to take effect.

Smith also points to his 1/5/18 individual development plan which included the “Action Step” that he “visit each site at the beginning of the quarter with the Manager and ISP Engineer(s) in charge.” A reasonable juror could find that he was justified in concluding that he was only responsible to make quarterly visits to remote sites. After all, the Playbook and development plan appear to be declarations of Charter’s policy and establish the requirements of Smith’s position. While it cannot be disputed that Charter wanted him to travel more, its argument that he was under an “express job requirement” to travel 50% of the time is simply not supported by its own materials. Material fact issues exist as to whether there was a 50% travel requirement for Smith in 12/17 and thus whether Charter had good cause for his termination on that basis.

Charter makes other arguments related to low morale in Smith’s region and his prior work history. The Court need not consider these assertions outside of whether they substantiate the 2 stated reasons for termination.

Charter attempts to tie low morale to absence of a leadership presence by Smith, asserting that “many employees reported that they had not seen him on site for months.” It advances the testimony of Gaebel and the declaration of Gainous. However, nothing in Gaebel’s testimony ties morale issues in the Mountain West Region to Smith or his lack of travel. Gainous’s declaration relates that she met with 12 employees in the Mountain states region 12/12-14/17 to investigate complaints of low morale. The investigation may have some probative value in support of Charter’s claim that Smith needed to travel more but it does not support its position that he was subject to a 50% travel requirement. Her investigation largely uncovered that employees do not like working for Charter compared to their former company — Bresnan — but also noted other concerns including that certain employees wanted to see more of management. She notes that “a couple said they haven’t seen [Smith and Heimstead] in 7-8 months, but ‘maybe they are coming out to see us.'” Another note addresses a lack of communication. She also notes the lack of team meetings and a desire among employees to meet monthly. Her investigation revealed low morale in general and a lack of communication on different levels which may suggest that Smith needed to travel more, but it sheds no light on any specific travel requirement. Charter’s low morale does not substantiate its assertion of good cause to terminate Smith for failing to meet a 50% travel requirement.

Charter’s reliance on Smith’s work history is similarly attenuated. His 4/6/17 Corrective Action Report contains no references relating to the reasons stated for his termination. Indeed, the stated reason for the warning relates to ISP response time and service restoration, availability of ISP sparing tools, and other technical issues and procedures. Heimstead testified that Smith resolved these issues and his subsequent performance review noted improvement. The October warning related to his Facebook post, which may be probative of his indifference towards Charter’s social media policy but does not substantiate either of the stated reasons for termination. Neither low morale nor prior written warnings are relevant to whether its stated reasons for terminating Smith constitute good cause.

Recommended, Charter’s motion for summary judgment be granted with respect to Smith’s claim that it violated its written personnel policy (which he withdrew) and denied in all other respects.

Smith v. Charter Communications, 44 MFR 226, 6/19/20.

Eric Holm (Holm Law Firm), Billings, for Smith; Joshua Kirkpatrick, Michelle Gomez, and David Gasrtenberg (Littler Mendelson), Denver, for Charter.

VENUE: Forum selection clause in employment contract is enforceable, suit transferred to employer’s home state of Georgia… Molloy.

TSYS Merchant Solutions of Columbus, Georgia, seeks to transfer venue in this employment contract dispute with John Fayle based on the contract’s forum-selection clause:

Applicable Law. Any dispute in the meaning, effect, or validity of this Agreement shall be resolved in accordance with the laws of the State of Georgia without regard to the conflict of law’s provisions thereof. This Agreement shall be governed by and construed under the laws of the State of Georgia or, at the Company’s sole option, by the laws of the state or states where this Agreement may be at issue in any litigation involving the Company. Venue of any litigation arising from this Agreement shall be in a federal or state court of competent jurisdiction in Muscogee County, Georgia. (emphasis added).

Caselaw governing interplay between public policy and forum-selection clauses has been applied with variable results. Ultimately, following Magistrate Lynch’s analytical approach in Frontline Processing (D.Mont. 2013), TSYS’s motion is granted.

In Federal Court, federal law applies “to the interpretation of” forum selection clauses. Doe 1 (9th Cir. 2009). They may be enforced through forum non conveniens in a motion to transfer under 28 USC 1404(a). Atlantic Marine (US 2013). A court “may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented” provided such a transfer is “for the convenience of parties and witnesses” and “in the interest of justice.” §1404(a). When a motion is filed under this provision, “a district court should transfer the case unless extraordinary circumstances unrelated to convenience of the parties clearly disfavor a transfer.” Atlantic Marine.

What constitutes an “exceptional reason” or “extraordinary circumstance” is governed by the Bremen (US 1972) factors:

A forum-selection clause is controlling unless the plaintiff makes a strong showing that: (1) the clause is invalid due to “fraud or overreaching,” (2) “enforcement would contravene a strong public policy of the forum in which suit is brought, whether declared by statute or by judicial decision,” or (3) “trial in the contractual forum will be so gravely difficult and inconvenient that [the litigant] will for all practical purposes be deprived of his day in court.” Yei A. Sun (9th Cir. 2018).

But these exceptions must be viewed “through the lens provided by Atlantic Marine,” Yei A. Sun, which means the plaintiff bears the burden of establishing that transfer is unwarranted and the court “should not consider arguments about the parties’ private interests.”

Fayle argues that transfer is inappropriate because Montana has a strong public policy against forum-selection clauses, as articulated by MCA 28-2-708:

Every stipulation or condition in a contract by which any party to the contract is restricted from enforcing the party’s rights under the contract by the usual proceedings in the ordinary tribunals or that limits the time within which the party may enforce the party’s rights is void. This section does not affect the validity of an agreement enforceable under [the Uniform Arbitration Act].

If correct, Fayle’s argument would be dispositive as the satisfaction of Bremen‘s public policy factor is sufficient “to render a forum-selection clause unenforceable.” Gemini Techs (9th Cir. 2019).

Our Court recently addressed this argument in 2 cases with different results. In Bjorgen (D.Mont. 2018), Judge Christensen correctly granted a motion to transfer on the grounds that “the Montana Supreme Court found that ‘forum selection clauses are not presumptively void as against public policy.'” (quoting Polzin (Mont. 2008)). After Bjorgen was decided, the 9th Circuit addressed the venue question in the context of Idaho law in Gemini Techs. Idaho St. 29-110(1) states:

Every stipulation or condition in a contract, by which any party thereto is restricted from enforcing his rights under the contract in Idaho tribunals, or which limits the time within which he may thus enforce his rights, is void as it is against the public policy of Idaho.

The 9th Circuit held that the plain language of this statute satisfied Bremen‘s public policy factor. Although explicitly expressing “no opinion” on the outcome under Montana law, it recognized the similarity between the statutes. As a result of that decision, our Court more recently denied a request to transfer venue in Swank, relying on §28-2-708. But even considering Gemini, in my view Swank misses the mark given Polzin and the difference between the statutes.

The Montana Supreme Court’s inconsistent treatment of forum selection clauses and §28-2-708 was thoroughly addressed in Frontline: while Montana may have previously interpreted the statute to invalidate forum selection clauses on public policy grounds, see Polaris (Mont. 1985), Keystone (Mont. 1998); see also Rindal (D. Mont. 1992), Mills (D.Mont. 2009), it has most recently clarified the confusion when it held that “forum selection clauses are not presumptively void as against public policy,” Polzin; see also Milanovich (Mont. 2007). Swank‘s conclusion and Fayle’s argument are therefore unpersuasive and “simply untenable” in the language of Frontline.

Gemini does not impose a different result. It did not rule on the public policy implications of similar Montana and Idaho statutes, and the statutes here are distinguishable. While the Idaho statute explicitly states that it embodies public policy, there is no such language in §28-2-708. That difference is telling because the Montana Legislature has included such language in other statutes. See, e.g., MCA 28-2-2116 (choice of law and venue in construction contracts), 28-2-702 (contracts that exempt one’s own fraud or willful injury of another). In this case it is a distinction with a difference.

As in Frontline, because Fayle’s challenge to the forum selection clause is based entirely on the public policy embodied in §28-2-702 and Swank, there is no other evidence on which to conclude that it is unenforceable. Fayle v. TSYS Merchant Solutions, 44 MFR 227, 7/2/20.

Douglas Scotti (Frampton Purdy), Whitefish, for Fayle; Mark Williams & Peter Ivans (Williams Law Firm), Missoula, and Nathan Chapman (Kabat Chapman & Ozmer), Atlanta, for TSYS