WRONGFUL DISCHARGE: MSC would likely find that courts should consider whether employer was at fault for poor performance… disputed fact issues as to whether employer provided sufficient training, tools, resources to satisfactorily perform preclude summary judgment as to good cause for termination… 90-Day Performance Management Plan, although unique to fired employee, could be found by jury to be personnel policy… jury could find that employer’s alleged perversion of 90-Day Plan constituted violation of Employee Handbook… Molloy.
Delta Dental Ins. hired Douglas Weber 1/22/08 as a sales account executive. He had previously worked for Insurance Coordinators of Montana. It claims that because of the relationship between Delta and ICM, his duties were different from those of other sales account execu
tives, including having some of the duties of an account manager. On 5/24/10 Delta put him on a 90-Day Performance Management Plan which required him to improve performance and communications with ICM or face termination, and indicated that supervisor Jim Dole or Robert Budd of HR would meet with him every 30 days to discuss his progress. Delta provides 10 examples of how he failed to improve, generally that he would not return calls from ICM or follow up with requested information. He claims Delta did not provide tools, training, and resources such as software or adequate account manager training and that neither Dole nor Budd met with him to discuss how he could improve. Delta fired him 10/1/10 because of his “lack of comprehensive and timely communication.” He sued in State Court. Delta removed to this Court. It requests summary judgment and to exclude evidence alleging that it violated the performance plan.
The case raises a novel question that neither the Montana Supreme Court nor his Court has addressed: when an employee fails to satisfactorily perform his duties does the employer have good cause to discharge if the poor performance is the consequence of the employer’s failure to provide sufficient tools, training, or resources? The closest the MSC has come was in Andrews v. Plum Creek Mfg. (Mont. 2001). Plum Creek discharged Andrews, an “invoice production clerk.” Management admitted that her training was minimal, she received no evaluations, there were no written procedures governing her responsibilities, and her performance had generally been “adequate.” However, it removed her from her position because of discrepancies in her record keeping, which she claimed were the result of poor training and no written procedures. Plum Creek argued that it had good cause to discharge her regardless of whether it was at fault because she failed to satisfactorily perform — that the plain language of MCA 39-2-903(5) provides that failure to satisfactorily perform constitutes good cause to discharge, regardless of who is at fault for that failure. The MSC did not have to respond to Plum Creek’s argument because Andrews never conceded that she performed poorly, instead arguing that the record-keeping system was faulty, and therefore she had raised a material fact issue as to her performance that precluded summary judgment. Had the MSC reached Plum Creek’s argument, it likely would have rejected it. The WDA states that an employer has good cause to discharge “based on a failure to satisfactorily perform job duties.” But the grounds must also be “reasonable job-related grounds.” An employer cannot reasonably discharge an employee for poor performance if the employer is at fault for the poor performance. It would be unreasonable for a contractor to hire a worker to help build a house but not give him the tools and then fire him for failing to do his job. A software company that hires a software engineer but fails to provide a computer could not fire him for good cause. In both cases, the worker fails to satisfactorily perform, but termination would be unreasonable when the employer does not provide the opportunity or resources to satisfactorily perform. Unlike the employee in Andrews, Weber takes no issue with Delta’s allegation that he failed to satisfactorily perform, but claims he “was blamed for something that was not his fault.” Delta claims it offered training for the information system conversion; Weber claims his supervisor canceled it with no explanation and that without access to the computer systems he could only solve service problems by contacting other Delta employees in Texas, Georgia, and California. Delta takes issue with the necessity of such support as well as all the other training, tools, and resources that Weber claims he needed, and reasons that he has not produced specific factual allegations that rise to a material fact issue. Given the factual disputes, they must be construed in favor of Weber. Delta’s motion for summary judgment as to good cause is denied.
Weber also insists that Delta violated its written personnel policy. There are 2 documents that might constitute a personnel policy: the Employee Handbook for managers and Weber’s 90-Day Performance Management Plan. Delta argues that his placement on the 90-Day Plan does not involve a discharge and is therefore not relevant to his wrongful discharge claim. Weber responds that Delta’s failure to comply with the plan is what gave rise to the wrongful discharge. Delta argues that its alleged violation of the plan should be excluded from any trial because it is not a written personnel policy. Whether it is a written personnel policy is a question for the jury. “A written personnel policy does not necessarily have to be an employee handbook.” Williams (Mont. 2011); Kearney (Mont. 1994). Under Montana law, whether a document is part of an employer’s written personnel policy is a fact question. Williams. In Williams, an employee argued that a “pre-transfer evaluation form” which determined which employees would be transferred to other facilities constituted a written personnel policy. The MSC did not resolve the question, but concluded that “conflicting inferences could be drawn from [the] evidence and that reasonable persons could conclude that the evaluation form was part of Plum Creek’s written personnel policy.” Consistent with the Employee Handbook for managers, Delta employed a progressive discipline procedure by putting Weber on the 90-Day plan. Delta argues that it is not a written personnel policy because it is not a policy of general applicability to all employees. The pre-evaluation form inWilliams was also unique to Williams, and the MSC concluded that whether it was a written personnel policy was a fact question for the jury. So too here. Delta acknowledges that Weber was fired for failing to comply with the 90-Day Plan, which suggests that it recognized it as part of his progressive discipline. Thus it is inextricably linked to his discharge. Moreover, the handbook for managers states that when it uses progressive discipline it will ensure a “fair method of discipline.” A jury might conclude that Delta violated the plan and thus violated its Employee Handbook when it discharged Weber. Delta insists that the handbook language which requires “a fair method of disciplining employees” is only “aspirational,” and a “fair method” is whatever it considers is fair. That argument is one to make to a jury. The jury will decide whether the process was fair. If it was, Delta has no concern; if it was not, there will be a price to pay, determined by the jury.
Weber v. Delta Dental Ins., 40 MFR 1, 8/9/12.
Donald Jones (Hohenlohe Jones), Helena, for Weber; Gregory Black (Corette, Polhman & Kebe), Butte, and Karen Kruse (Jackson Lewis), Seattle, for Delta.
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