Glumbik v. Interstate Power Systems, Inc.

Filing 38

ORDER granting 27 Defendant's Motion for Summary Judgment. Signed by Judge Richard F. Cebull on 8/2/2010. (EMA)

Glumbik v. Interstate Power Systems, Inc.

Doc. 38

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF MONTANA B I L L I N G S DIVISION K E N N E T H P. GLUMBIK, P l a i n t if f , vs. INTERSTATE POWER SYSTEMS, I N C ., a Minnesota Corporation A uthor ize d to do Business in the State of Montana, D e f e nd a n t . ___________________________________ ) I. I NTRODUCTION P la intiff Kenneth Glumbik filed the instant action against Defendant Interstate P o w e r System, Inc. for lost wages under Montana's Wrongful Discharge from E mp lo yme nt Act ("WDEA"). Suit was initially brought in Montana's Thirteenth J ud ic ia l District Court, Yellowstone County, but Interstate removed to this Court on gro und s of diversity of citizenship. Presently before the Court is Interstate's Motion fo r Summary Judgment. Doc. 27. II. F ACTUAL BACKGROUND Defendant Interstate Power System, Inc. ("Interstate") is a Minnesota c o rp o ra tio n that operates a diesel repair distributorship and repair facility in Billings,
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) C V 09-55-BLG-RFC ) ) ORDER GRANTING ) DEFENDANT'S MOTION ) FOR SUMMARY JUDGMENT ) ) ) ) ) ) )

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Montana. As part of its diesel engine repair business, and as required by distributorship agreements with various manufacturers, Interstate provides its c us to me rs with on call service 24 hours a day seven days a week. In order to have employees available to help customers with diesel engine p ro b le ms in the Billings region, Interstate staffs its on call service with a rotation of q ua lifie d mechanics. The rotations generally last one week and require the me c ha nic to carry a company cell phone after hours. Calls made to an answering s e rvic e are forwarded to the company cell phone. If a service call requires the me c ha nic to go to the shop or a customer location, he is paid for at least two hours o ve rtime , with double time on Sundays. The numbers of calls varies greatly, but Inte rs ta te claims that an on call mechanic will average 4 or 5 calls a week, with one o r two that require actual work.1 Interstate has had this on call system in place for ma ny years and being on call is a job requirement for journeyman mechanics. Plaintiff Kenneth Glumbik commenced his employment with Interstate in 1 9 8 8 , when it purchased the diesel repair business Glumbik had been working for. On Monday April 30, 2008, Glumbik was on call when a service call came in at a p p ro xima te ly 5:45 p.m. Although it attempted to call the cell phone carried by

Glumbik claims this is a low estimate of the amount of extra work involved in being on call, but this factual dispute is immaterial. 2

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Glumbik, the answering service dialed the wrong number. Unable to reach G lumb ik , the answering service contacted Interstate foreman John Scott. Scott p la c e d two calls to Glumbik on the cell phone, but Glumbik did not answer. Scott the n handled the service call, which required a simple part replacement. G lumb ik did not answer Scott's calls because he had left the cell phone in his truc k while he was in a bar drinking beer with a co-employee. When Glumbik re turne d to his truck, he saw that Scott had tried to call him twice. Glumbik then c a lle d Scott, who asked why he did not answer the calls. According to Scott, G lumb ik responded that he had not received any calls, but that even if he did, they c o uld fuck off and kiss his ass because he was not going to go on a service call and the n work all day. Although he is not certain of his exact words, Glumbik admits his language was "hot and heated" and that he used the words "fuck off and kiss my a s s ," but he denies that he refused to take calls. Scott responded that they would d is c us s it in the morning and hung up the phone. Glumbik then called Scott a second time, telling Scott that he could not e xp e c t on call mechanics to take this "fucking phone," work on trucks all night, and the n be at a job in the field the next morning. Scott again hung up on Glumbik. The following day, May 1, 2008, Glumbik was out of the shop in the morning o n a field project. At about 4 p.m., he was called in to a meeting with Charlie
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Stiles, the service manager, and Mike Ray, the branch manager. Pursuant to Inte rs ta te ' s Employee Handbook, Interstate may terminate an employee, without p ro gre s s ive discipline, for any violation of company rules or other common sense re a s o ns , including insubordination, conduct that disrupts business activities, or e nga ging in rude or discourteous behavior. At the May 1, 2008 meeting, Stiles recapped the previous day's events as re la te d by Scott. Stiles and Ray both assert that Glumbik said he did not receive the s e rvic e call, but even if he had, he would not have responded because he did not lik e being on call. Again, Glumbik denies refusing to go on this or any other service c a ll. Regardless, Glumbik admits that Ray told him that being on call was part of his job and that he responded that he guessed he no longer had a job. Glumbik turne d in his keys and left the building. Interstate's official position is that Glumbik was terminated for ins ub o rd ina tio n, failing to follow work rules, and failing to perform his job re q uire me nts . III. A NALYSIS S umma ry judgment is proper when "the pleadings, the discovery and d is c lo s ure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law."
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Fed.R.Civ.P. 56(c). An issue is "genuine" only if there is a sufficient evidentiary b a s is on which a reasonable fact finder could find for the nonmoving party and a d is p ute is "material" only if it could affect the outcome of the suit under the go ve rning law. Anderson, v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The p a rty moving for summary judgment has the initial burden of showing the absence o f a genuine issue of material fact. Anderson, 477 U.S. at 256-57. Once the mo ving party has done so, the burden shifts to the opposing party to set forth s p e c ific facts showing there is a genuine issue for trial. In re Barboza, 545 F.3d 7 0 2 , 707 (9th Cir. 2008). The nonmoving party "may not rely on denials in the p le a d ings but must produce specific evidence, through affidavits or admissible d is c o ve ry material, to show that the dispute exists." Id. O n summary judgment, the evidence must be viewed in the light most fa vo ra b le to the non-moving party. Id. The court should not weigh the evidence a nd determine the truth of the matter, but determine whether there is a genuine issue fo r trial. Anderson, 477 U.S. at 249. Inte rs ta te moves for summary judgment on the entirety of Glumbik's WDEA c la im, arguing it is entitled to judgment as a matter of law that Glumbik's te rmina tio n (1) was not in violation of Interstate's written personnel policy and (2) w a s supported by good cause.
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A.

G LUMBIK'S DISCHARGE DID NOT VIOLATE ANY EXPRESS P ROVISION OF INTERSTATE'S WRITTEN PERSONNEL POLICY

Under the WDEA, a termination is unlawful if "the employer violated the e xp re s s provisions of its own written personnel policy." Mont. Code Ann. § 39-29 0 4 (c )(1 ). Glumbik claims his termination is unlawful because it did not conform to the procedures established by Interstate's written personnel policy. Doc. 7, ¶ 6. Inte rs ta te ' s Employee Handbook provides, in relevant part: D is c ip line and Rules R ule s and Regulations It is the Company's policy that each employee will act in a professional ma nne r with the utmost respect given to fellow workers and customers. For the protection of its property, business interests, and other e mp lo ye e s , however, the Company must insist on certain reasonable rule s of conduct. Failure to comply with these rules, and any others d ic ta te d by common sense consideration, renders the violator subject to d is c ip lina ry action, including discharge. Specific rules, among others d ic ta te d by common sense considerations, are that employees shall not: · M is re p re s e nt and/or withhold pertinent facts in securing e mp lo yme nt. C o mmit insubordination, including refusal or failure to perform a s s igne d work. B e inefficient or careless in the performance of job re s p o ns ib ilitie s . E nga ge in conduct, which disrupts business activities.

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R e fus e to follow instructions of authorized personnel, engage in rud e or discourteous conduct, or any action that endangers the he a lth or safety of others. Fa il to follow safety procedures including failure to report workre la te d injury, accident, and/or damage to Company property. D ire c tly or indirectly, either for one's personal benefit or for the b e ne fit of any other person or Company, reveal any Company tra d e secrets or any other Company or employee information. V io la te a confidence; release unauthorized confidential info rma tio n or official records. M a k e malicious, false, or derogatory statements that may damage the integrity or reputation of the Company or its employees. D e via te from credit policies without credit department approval. D e s tro y or damage Company property or personal property of o the rs , or engage in the unauthorized removal of such property. Fa ls ify company records. C o mmit negligence that results in injury to an employee, self, or a vis ito r. E nga ge in discriminatory conduct, actions, or sexual harassment a ga ins t any other person; or violate any policy, rule, procedure, or p ra c tic e established by the Company. C o mmit a crime.

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D is c ip lina r y Provisions A s noted above, employees of the Company are required to abide by c e rta in rules and regulations, use their common sense, and generally treat o the rs consistent with accepted standards of conduct. The Company's
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purpose for requiring such conduct is to maintain a professional, pleasant w o rk environment for all of its employees, to provide the best customer s e rvic e in the industry, and to maintain an efficient and profitable b us ine s s enterprise. T he Company's normal practice is to help an employee identify p ro b le ms and to improve the performance and behavior of the employee. However, failure to observe established rules and practices may lead to d is c ip lina ry action. Such action may, in the Company's sole discretion inc lud e any action up to and including termination. The Company does no t maintain a progressive discipline system. Each incident is handled ind e p e nd e ntly and the consequences of each disciplinary matter are ind e p e nd e nt of any other disciplinary situation, involving the affected e mp lo ye e or any other employee past or present. Doc. 30, Ex. C, Affidavit of Michael Ray (May 20, 2010). A ltho ugh he recognizes that the Employee Handbook clearly states Interstate " d o e s not maintain a progressive discipline system" and that "[e]ach incident is ha nd le d independently and the consequences of each disciplinary matter are ind e p e nd e nt of any other disciplinary situation," Glumbik clings to the statement in the Employee Handbook providing that Interstate's "normal practice is to help an e mp lo ye e identify problems and to improve the behavior of the employee." Accordingly, Glumbik alleges his termination was unlawful under § 39-2-904(c)(1) b e c a us e he was terminated without an opportunity to identify his problems and imp ro ve his behavior. Similarly, Glumbik argues that since the Employee H a nd b o o k does not expressly provide for "immediate" termination, Interstate

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unlawfully terminated him at the May 1, 2008 meeting. Glumbik's arguments, however, are meritless. The "express provisions" of the Employee Handbook provide that employees are subject to discharge, without p ro gre s s ive discipline, for failure to comply with the rules established in the E mp lo ye e Handbook. For that reason, there is no genuine issue for trial as to w he the r Interstate violated the express provisions of its written personnel policy and s umma ry judgment must be granted as to Interstate on this portion of Glumbik's W D E A claim. B. I NTERSTATE HAD GOOD CAUSE TO TERMINATE GLUMBIK BECAUSE H E REFUSED TO PARTICIPATE IN A JOB REQUIREMENT THAT HE T AKE CALLS WHILE ON CALL

Glumbik alleges his discharge was unlawful pursuant to § 39-2-904(1)(b) b e c a us e it was not for good cause and he had completed the employer's p ro b a tio na ry period of employment. Doc. 7, ¶ 5. Interstate argues it is entitled to s umma ry judgment because the undisputed facts establish it had good cause to te rmina te Glumbik for his refusal to participate in the on call requirements of his jo b . Under the WDEA, good cause "means reasonable job-related grounds for d is mis s a l based on a failure to satisfactorily perform job duties, disruption of the e mp lo ye r' s operation, or other legitimate business reason." Mont. Code Ann. § 399

2-903(5). "A legitimate business reason for termination is defined as a reason that is neither false, whimsical, arbitrary or capricious, and it must have some logical re la tio ns hip to the needs of the business." Johnson v. Costco Wholesale, 152 P.3d 7 2 7 , 733 (Mont. 2007) (internal quotations omitted). The Montana Supreme Court ha s expressly held that refusal to fulfill job requirements is good cause for d is c ha rge . Mysse v. Martens, 926 P.2d 765, 770 (Mont. 1996). At his deposition, John Scott testified that after he told Glumbik not to worry a b o ut missing the phone calls because Scott had already performed the repair, G lumb ik told him, with vitriol and untoward language, that he didn't care whether the job was done or not because he was not going to do any more call-outs. John S c o tt Depo., 8:5-16 (May 20, 2010), attached as Ex. D to Doc. 28, Interstate's S ta te me nt of Undisputed Facts. Similarly, Michael Ray avers that during his May 1, 2008 meeting with C ha rle s Stiles and Glumbik, Glumbik acknowledged that he did not receive Scott's p ho ne calls the evening before, but said that he would not have gone on the call e ve n if he had because he was not going to deal with being on call. Doc. 30, Aff. M ic ha e l Ray, ¶ 12 (May 20, 2010). Ray further avers that Glumbik later reiterated tha t he was "no longer going to participate in the call out requirements of his job" a nd when Ray told Glumbik that being on call was a job requirement, Glumbik said
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he no longer had a job. Id. at ¶ 14. Ray agreed with Glumbik, who turned in his k e ys and left. Id. Stiles' deposition testimony concerning the May 1, 2008 meeting confirms tha t of Ray. According to Stiles, Glumbik told them he did not want to be on call. Charles Stiles Depo., 16:15-18 (May 20, 2010), attached as Ex. B. to Doc. 28, Inte rs ta te ' s Statement of Undisputed Facts. More importantly, since expressing d is p le a s ure with being on call is not the same as refusing to be on call, Stiles re ite ra te d that when he and Ray told Glumbik that being on call was part of the job, G lumb ik responded that he guessed he did not have a job. Id. at 16:18-19. C o ns id e ring this testimony, Interstate has satisfied its initial burden of p ro d uc tio n. Glumbik, however, attempts to create a genuine issue of material fact b y denying that he ever refused to be on call. Specifically, at his deposition, G lumb ik was presented with an email from Scott reiterating the phone conversations S c o tt had with Glumbik on the evening of April 30, 2008. Depo. Kenneth Glumbik , 46:12 - 47:4 (Feb. 24, 2010). In the email, Scott said Glumbik "had called and to ld me that he had not received any calls, and that even if he had, you call can fuck o ff and kiss his ass, he was not going on a service call and then working all day." Id. at 47:1-4. When asked if he said that to Scott, Glumbik at first said that he did no t remember saying that, but then remembered that he said "something like that."
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Id. at 47:4 - 9. Although this testimony is not conclusive evidence that Glumbik re fus e d to go on service calls, it is consistent with the accounts of Stiles, Scott, and R a y that Glumbik refused to do his job. La te r in his deposition, however, Glumbik testified that, during the May 1, 2 0 0 8 meeting, he never told Stiles or Ray that he was not going to take calls on call. Id. at 48: 16-18. This is Glumbik's best evidence. But this denial is overcome by G lumb ik ' s admission that he told Ray he guessed he no longer had a job when Ray to ld him that being on call was a part of his job. Id. at 48:19-25. T he inquiry does not end here, because an employee may survive summary jud gme nt on good cause by proving that the given reason is a pretext and not the ho ne s t reason for the discharge. Becker v. Rosebud Operating Services, Inc, 191 P .3 d 435, 441 (Mont. 2008). Although he does not fully develop this argument in his brief, Glumbik's statement of genuine issues implies he was fired for other re a s o ns than his refusal to be on call. In any event, Glumbik's claim that his te rmina tio n was caused by something other than his refusal to the work required of him is simply speculation. Glumbik implies that he was terminated because he was having health p ro b le ms . Doc. 33, p.3. Regardless, Mike Ray was the person who fired Glumbik a nd the undisputed fact is that he had no idea Glumbik was having problems with
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his feet until after Glumbik was terminated. Depo. Mike Ray, 11:7- 22. Glumbik also implies the underlying reason for his termination is that Inte rs ta te was in the process of reducing its workforce. Doc. 33, p. 3. On this s ub je c t, John Scott testified that he did not think anyone was hired to replace G lumb ik . Scott Depo. 17:1-2. Further, at the time Glumbik was terminated, Inte rs ta te had twenty shop employees, but he guesses there were less than 10 in M a y of 2010 because the workload declined. Id at 17:2-13. Scott's knowledge of c o nd itio ns at Interstate is suspect, however, because he was no longer employed w ith Interstate. Id. at 17:22-18:1. Mike Ray testified the he believed there were fewer mechanics employed by Inte rs ta te than when Glumbik was fired, but the difference was not significant. Ray D e p o . 14:1-10. Moreover, Ray testified that his industry goes through highs and lo w s in workforce size and that he thought that generally workforces were lower b e tw e e n May 2008 and May 2010, but that Interstate had begun to rebound in May o f 2010. Id. at 14:13-15:1. Finally, Stiles testified that in late 2009 or early 2010 he was laid off from Inte rs ta te after 37 years of service when his position was eliminated because of a s ignific a nt downturn in business that not only affected Interstate, but other c o mp a nie s in the area. Stiles Depo. 3:16-4:25. Stiles further testified that while two
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or three people were laid off, some new people were hired between the time that G lumb ik was fired and he was laid off. Id. at 4:5-19. On these facts, Glumbik has failed to raise a genuine issue of material fact as to whether he was fired for any other reason than his refusal to do the work assigned to him. IV. ORDER Fo r those reasons, IT IS HEREBY ORDERED that Interstate's Motion for S umma ry Judgment (Doc. 27) is GRANTED. T he Clerk of Court is directed to notify the parties of the entry of this Order a n enter judgment accordingly. D a te d this 2nd day of August 2010. /s / Richard F. Cebull_______ R ic ha rd F. Cebull U nite d States District Judge

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