Weber vs. Delta Dental Ins. Co.
Filing
49
ORDER denying 37 Motion in Limine; denying 24 Motion for Summary Judgment. Signed by Judge Donald W. Molloy on 8/9/2012. (dle)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
DOUGLAS WEBER,
)
)
Plaintiff,
)
)
vs.
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DELTA DENTAL INSURANCE
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COMPANY,
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)
Defendant.
)
___________________________________ )
CV 11–21–H–DWM
ORDER
This is a wrongful discharge from employment case. Delta Dental Insurance
Company is the former employer, and Douglas Weber is the former employee.
Delta Dental moves for summary judgment and moves to exclude evidence
alleging that it violated a “90-Day Performance Management Plan” on which it
placed Weber. Both motions are denied for the reasons set forth below.
BACKGROUND
Delta Dental is an insurance company that offers dental benefits in
Montana. It works through a business partner, Insurance Coordinators of Montana,
Inc., to sell and service its benefits plans. Insurance Coordinators of Montana is
the principal contact for customers that purchase Delta Dental products, both
1
during and after the purchase.
Delta Dental hired Weber on January 22, 2008, to work as a Sales Account
Executive. Weber had worked for Insurance Coordinators of Montana immediately
before Delta Dental hired him. Delta Dental’s job-offer letter states that Delta
Dental “from time to time in its sole discretion, may adjust the salaries and
benefits paid to you and its other employees as well as reporting relationships, job
titles and responsibilities.”1 Delta Dental claims that, because of the relationship
between Delta Dental and Insurance Coordinators of Montana, Weber’s job duties
were different than those performed by other Sales Account Executives. In
addition to the duties of a Sales Account Executive, Delta Dental also expected
Weber to perform some of the duties of an Account Manager.
On May 24, 2010, Delta Dental put Weber on a 90-Day Performance
Management Plan to improve his purported subpar job performance. Weber was
put on the 90-Day Plan because staff with Insurance Coordinators of Montana
were frustrated with Weber’s incomplete communications and lack of follow up.
Generally speaking, the 90-Day Plan required Weber to improve his performance
and communications with Insurance Coordinators of Montana or face termination.
1
Notably this unilateral language does not constitute a contract for
employment services that would preclude application of Montana’s wrongful
discharge law. Section 39-2-912(2) M.C.A.
2
The 90-Day Plan also indicated that Jim Dole (Weber’s supervisor) or Robert
Budd (with Human Resources) would meet every 30 days with Weber to discuss
his progress.
According to Delta Dental, Weber’s performance did not improve. In its
opening brief, Delta Dental provides ten detailed examples of how Weber failed to
improve his performance. Generally speaking, those examples tend to show that
Weber would not return calls from staff at Insurance Coordinators of Montana or
follow up with information that they requested. Weber does not contest Delta
Dental’s factual account of those examples. Instead, he claims that he performed
poorly because Delta Dental did not provide him with the tools, training, and
resources that he needed in order to succeed at his job. Weber claims, for example,
that Delta Dental did not provide him with the computer software that he needed
or provide him with adequate training for his Account Manager responsibilities.
He also claims that neither Dole nor Budd met with him while he was on the 90Day Plan in order to discuss how he could improve.
Delta Dental fired Weber on October 1, 2010. In its termination letter, Delta
Dental stated that it was firing Weber because of his “lack of comprehensive and
timely communication.” Weber filed this lawsuit against Delta Dental in state
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court on January 21, 2011.2 Delta Dental then removed it on April 20, 2011.
SUMMARY JUDGMENT STANDARD
“The court shall grant summary judgment if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). “[A] party seeking summary judgment
always bears the initial responsibility of informing the district court of the basis
for its motion, and identifying those portions of ‘the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if
any,’ which it believes demonstrate the absence of a genuine issue of material
fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Material facts are those
which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is
sufficient evidence for a reasonable fact-finder to return a verdict for the
nonmoving party. Id.; see also Russell v. Daiichi-Sankyo, Inc., 2012 WL 1793226
(D. Mont. May 15, 2012).
ANALYSIS
Under Montana’s Wrongful Discharge from Employment Act, a discharge is
2
The state court complaint is dated January 21, 2010, but that is apparently
a typo.
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wrongful only if:
(a) it was in retaliation for the employee’s refusal to violate public
policy or for reporting a violation of public policy;
(b) the discharge was not for good cause and the employee had
completed the employer's probationary period of employment; or
(c) the employer violated the express provisions of its own written
personnel policy.
Mont. Code Ann. § 39–2–904.
Here, Weber claims that Delta Dental did not have good cause to discharge
him and that it violated its own written personnel policy. Delta Dental, on the
other hand, argues that it had good cause, that it did not violate its own written
personnel policy, and that any evidence alleging that it violated its written
personnel policy should be excluded.
I.
Good cause
An employer has “good cause” to discharge an employee when it has
“reasonable job-related grounds for dismissal based on a failure to satisfactorily
perform job duties, a disruption of the employer’s operation, or other legitimate
business reasons.” Mont. Code Ann. § 9–2–903(5).
Here, Delta Dental allegedly discharged Weber because he failed to improve
his performance under the 90-Day Performance Management Plan. Instead of
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challenging the alleged facts that led to his discharge, Weber claims that Delta
Dental did not have good cause to discharge him because (1) Delta Dental failed to
provide Weber with the tools, training, and resources he needed to
comprehensively and timely communicate with Insurance Coordinators of
Montana and (2) Delta Dental violated its own personnel policy by not complying
with the 90-day Performance Management Plan on which it placed Weber.
Only the first argument is subject to the “good cause” standard. The second
argument related to the personnel policy is not a question of good cause. Whether
an employer had good cause to terminate an employee and whether the employer
violated its own written personnel policy are separate questions. Montana Code
Annotated § 39–2–904(1). Weber’s only argument about good cause is that Delta
Dental did not provide him with adequate training, tools, and resources.
Weber’s good-cause contention raises a novel question that neither the
Montana Supreme Court nor this Court has addressed. That question is: When an
employee fails to satisfactorily perform his job duties, does the employer have
good cause to discharge the employee if the employee’s poor performance is the
consequence of the employer’s failure to provide sufficient tools, training, or
resources?
The closest that the Montana Supreme Court has come to addressing this
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issue was in Andrews v. Plum Creek Manufacturing, LP, 27 P.3d 426 (Mont.
2001). There, Plum Creek discharged Andrews, who had been hired as an “invoice
production clerk.” Id. at 427. Her duties included managing deposits, maintaining
records of petty cash, and maintaining retail sales accounts. Id. Plum Creek
management admitted that Andrews’ training was minimal, she received no job
evaluations, there were no written procedures governing her job responsibilities,
and her job performance had generally been “adequate.” Id. Plum Creek removed
her from her position, though, because it began to notice discrepancies in her
record keeping. Id. Andrews did not deny the discrepancies but claimed they were
the result of poor training and no written procedures.
Plum Creek argued that—regardless of whether it was at fault—it had good
cause to discharge Andrews because she failed to satisfactorily perform her job
duties:
Plum Creek asserts that the plain language of § 39–2–903(5), MCA
(1999), provides that failure to satisfactorily perform job duties
constitutes good cause to discharge an employee, regardless of who is
at fault for that failure. Based on that statute, Plum Creek argues that it
is irrelevant who may be blamed for Andrews's poor job performance.
To establish a genuine issue, Plum Creek contends that Andrews needed
to present evidence that she had satisfactorily performed her job duties.
And, Plum Creek argues, none of Andrews’s evidence suggests that she
satisfactorily performed her job; rather, the evidence merely presents
explanations for her failure to satisfactorily perform her job duties.
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Id. at 428–29.
The Andrews Court did not have to respond to Plum Creek’s argument
because Andrews never conceded that she performed her job poorly. Instead, she
argued that she satisfactorily performed her job duties and that it was the “recordkeeping system [that] was faulty.” Id. at 428. The Court therefore concluded that
Andrews had raised a genuine issue of material fact regarding her job performance
that precluded summary judgment.
If the Montana Supreme Court had reached Plum Creek’s argument—that
is, courts should not consider whether the employer was at fault for an employee’s
poor performance when determining whether the employer had good cause to
discharge an employee—the Court would likely have rejected it. Montana’s
Wrongful Discharge from Employment Act states that an employer has good cause
to discharge an employee “based on a failure to satisfactorily perform job duties.”
Mont. Code Ann. § 39–2–903(5). But the grounds for a good cause discharge must
also be “reasonable job-related grounds.” Id. 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 example, for a contractor to hire a
construction worker to help build a house, but not give the worker the necessary
tools, and then fire him for failing to do his job. Similarly a software company that
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hires a software engineer but fails to provide a computer to develop the software
could not fire an employee for good cause. If the engineer does not satisfactorily
develop the software, does the company have good cause to discharge her? In both
instances, the worker fails to satisfactorily perform his or her job duties, but
termination would be unreasonable when the employer does not give the employee
the opportunity or resources to satisfactorily perform.
Here, unlike the employee in Andrews, Weber takes no issue with Delta
Dental’s allegation that he failed to satisfactorily perform his job duties. Instead,
he claims that he failed to satisfactorily perform his job duties because Delta
Dental did not provide him with the necessary tools, training, or resources. Weber
claims:
1.
Delta Dental hired Weber as an Account Executive but then later
required him to perform the additional job duties of an Account
Manager without adequate training or resources.
2.
In order to fulfill Insurance Coordinators of Montana’s service
requests, Weber had to communicate with other Delta Dental
employees in other states, but those other employees failed to
adequately respond to Weber.
3.
Weber requested training, assistance, accommodation, and access
to additional systems in order adequately fulfill service requests
but never received them.
4.
During the time at issue, Delta Dental began using a different
information system and this conversion caused problems with
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customer service functions.
In short, Weber claims he “was blamed for something that was not his fault.”
Delta Dental insists that it gave Weber all the training, tools, and resources
he needed. It maintains that Dole, Weber’s supervisor, tried to help him use
organizational tools to facilitate better communication, offered performance
evaluations, and gave him additional training. Delta also asserts that Dole was
previously able to perform Weber’s duties with the same training, tools, and
resources.
Whether Weber needed additional training, tools, and resources to
satisfactorily perform his job duties is a fact question. Here, the parties put
forward conflicting factual accounts. Delta Dental claims that it offered training
for the information system conversion in 2010. Weber swears that he was not
provided with that training because his supervisor cancelled the training with no
explanation. He insists that, without access to the computer systems, he could only
solve service problems by contacting other Delta Dental employees in Texas,
Georgia, and California. Weber maintains that he told Dole about the support and
resources that he needed to effectively work with Insurance Coordinators of
Montana and that, after Weber was fired, Delta Dental reconfigured its operations
to make that support and resources available.
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Delta Dental takes issue with the necessity of such support and resources, as
well as all the other training, tools, and resources that Weber claims he needed. It
further reasons that Weber has not produced specific factual allegations that raise
a genuine issue of material fact. Delta Dental claims it offered Weber training on
the system conversion, and he says he never received it because his supervisor
cancelled the training. That is a material dispute.
Given the factual disputes, they must be construed in favor of Weber.
Consequently, Delta Dental’s motion for summary judgment as to good cause is
denied.
II.
Written personnel policy
Weber also insists that he was wrongfully discharged because Delta Dental
violated the express provisions of its own written personnel policy. There are two
documents here that might constitute a written personnel policy: (1) the Employee
Handbook for managers and (2) Weber’s 90-Day Performance Management Plan.
Delta Dental moves for summary judgment on this claim, and it moves to exclude
evidence alleging that it violated the 90-Day Plan.
A.
Motion in limine
Delta Dental does not seek to exclude all evidence related to the 90-Day
Plan. It acknowledges that Weber was discharged for failing to comply with the
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Plan’s terms. Instead, Delta Dental seeks to exclude evidence and argument
alleging that Delta Dental (1) “violated its written personnel policies by placing
Weber on the [90-Day Plan]” or (2) “violated Weber’s [90-Day Plan] in
discharging him.” This motion is also denied.
1.
Weber’s placement on the 90-Day Plan
Delta Dental argues that Weber’s placement on the 90-Day Plan does not
involve a discharge and, therefore, it is not relevant to Weber’s wrongful
discharge claim. Weber never reasons to the contrary, he does not insist that his
placement on the 90-Day Plan was the wrongful discharge. Instead, Weber asserts
that Delta Dental’s failure to comply with the provisions in the 90-Day Plan is
what gave rise to the wrongful discharge.
2.
Delta Dental’s alleged violation of the 90-Day Plan
Delta Dental argues that its alleged violation of the 90-Day Plan should be
excluded from any trial because the 90-Day Plan is not a written personnel policy.
Whether the 90-Day Plan 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 v. Plum Creek Timber Co., Inc., 264 P.3d 1090, 1097 (Mont.
2011) (citing Kearney v. KXLF Comms., Inc., 869 P.2d 772 (Mont. 1994)). Under
Montana law, whether a document is part of an employer’s written personnel
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policy is a fact question. Williams, 264 P.3d at 1097. 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. Id.
The Montana Supreme Court did not resolve the question. Instead, it 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 . . . .” Id. Based in part on this conclusion, the
Court held that the district court erred in granting summary judgment in favor of
the employer. Id. at 1097–98.
Here, Weber claims that Delta Dental violated its own written personnel
policy by violating its Employee Handbook for managers, as well as the terms of
Weber’s 90-Day Performance Management Plan. Delta Dental’s Employee
Handbook for managers reads:
Although the employment relationship may be terminated at will by the
employee or the company, without following any formal system of
discipline or warnings, the company often exercises its discretion to use
a progressive discipline procedure to ensure a fair method of
disciplining employees. When followed, the progressive discipline
system is intended to give employees advance notice, whenever
possible, of problems with their conduct or performance in order to
provide you an opportunity to correct problems.
Consistent with the Handbook, Delta Dental employed a progressive
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discipline procedure by putting Weber on the 90-Day Performance Management
Plan.3 The Plan stated that Jim Dole or Robert Budd would meet with Weber every
30 days to “discuss [Weber’s] progress.” Weber, though, claims that neither Budd,
Dole, or anyone else ever met with him to discuss his progress. Without these
meetings, Weber reasons, he had no directed way of knowing how he needed to
improve.
Delta Dental argues that the 90-Day Plan is not a written personnel policy
because it is not a policy of general applicability that applies to all employees.
There are at least two problems with this argument. First, accepting the
proposition that the 90-Day Plan is only a document that Delta Dental tailored to
Weber’s unique circumstances does not resolve the issue. The pre-evaluation form
in Williams was also unique to Williams. There, the Montana Supreme Court
concluded that whether that tailored document was a written personnel policy was
a question of fact for the jury. So too here.
Second, Delta Dental acknowledges that Weber was fired for failing to
comply with the provisions of the 90-Day Plan. That acknowledgment suggests
3
Delta Dental argues that the Court should not consider the 90-Day Plan
because it was not part of the “discharge action.” The argument is not compelling.
The 90-Day Plan was part of the discharge action because Delta Dental used it as
progressive discipline and ultimately discharged Weber for failing to follow it.
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that it recognized that the 90-Day Plan was part of Weber’s progressive discipline.
As such, it is inextricably linked to Weber’s discharge—the terms of the discharge
are based entirely on the terms of the 90-Day Plan.
Moreover, Delta Dental’s Employee Handbook for managers states that
when it uses progressive discipline, it will ensure a “fair method of disciplin[e].”
Delta Dental claims it discharged Weber for failing to comply with the 90-Day
Plan, yet a jury might conclude that Delta Dental itself violated the provisions of
that Plan. Delta Dental’s alleged perversion of the 90-Day Plan might very well
lead a jury to conclude that it violated its Employee Handbook when it discharged
Weber.
B.
Motion for summary judgment
For many of the same reasons given its motion in limine, Delta Dental also
claims that it is entitled to summary judgment on Weber’s claim that Delta Dental
violated its written personnel policy when it discharged him. The motion in this
regard is also denied.
Construing the facts in Weber’s favor, a reasonable jury might conclude that
Delta Dental violated the express terms of its written personnel policy when it
discharged Weber. A reasonable jury might conclude that, taken together, the
Handbook and the 90-Day Plan constitute an express written personnel policy,
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even though the Plan is not expressly part of the Handbook. Williams, 264 P.3d at
1097; Kearney, 869 P.2d 772. And that same jury might also conclude that Delta
Dental violated the terms of that policy by failing to meet with Weber in order to
evaluate his progress. Then again, the jury might conclude otherwise. In either
case, the question is for the jury, not the Court.
In its reply brief, Delta Dental claims that “Weber abandons his argument
[that] Delta violated the express provisions of a ‘written personnel policy’ through
alleged [90-Day Plan] violations.” Not so. Weber never concedes that the 90-Day
Performance Management Plan was not a written personnel policy.
Delta Dental also insists that it did not violate the express terms of its
Employee Handbook because the Employee Handbook language—which requires
“a fair method of disciplining employees”—is only “aspirational.” A “fair
method,” Delta Dental asserts, is whatever method 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 wasn’t, there will be a price to pay
determined by the jury.
There are material fact questions as to whether Delta Dental violated the
express provisions of its written personnel policies when it discharged Weber.
Delta Dental’s motion for summary judgment is denied.
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CONCLUSION
There are genuine issues of material fact as to whether Delta Dental had
good cause to discharge Weber and whether Delta Dental violated its personnel
policies when it did so. Evidence alleging that Delta Dental violated the 90-Day
Plan should not be excluded. Delta Dental’s motion for summary judgment and its
motion in limine are both denied.
IT IS ORDERED that Delta Dental Insurance Company’s motion for
summary judgment (doc. 24) is DENIED.
IT IS FURTHER ORDERED that Delta Dental Insurance Company’s
motion in limine (doc. 37) is DENIED.
Dated this 9th day of August 2012.
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