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.