Golden v. NorthWestern Corporation

Filing 34

ORDER granting 23 Motion for Summary Judgment. This case is DISMISSED. Signed by Chief Judge Dana L. Christensen on 4/1/2014. (dle)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

TONY GOLDEN,

CV 12–190–M–DLC
Plaintiff,
ORDER

vs.
NORTHWESTERN CORPORATION, a
Delaware corporation d/b/a
NORTHWESTERN ENERGY,
Defendant.

Plaintiff Tony Golden filed this wrongful discharge action against
NorthWestern Corporation, his former employer, in the Montana Fourth Judicial
District, Missoula County in October of 2012. NorthWestern removed the case to
this Court the following month. Golden asserts claims under the Montana
Wrongful Discharge from Employment Act, Mont. Code Ann. § 39-2-904(1)(b)
and (c), alleging that his termination was not for good cause and was in violation
of the express provisions of NorthWestern’s written personnel policies.1

1

Plaintiff also filed a claim for negligence, which the Court has dismissed. (Doc. 10.)
1

In its motion now before the Court, NorthWestern claims it is entitled to
complete summary judgment on all remaining claims, contending that Golden was
terminated because he was using company time and resources for his own personal
real estate business, and because he received, stored, and transmitted numerous
pornographic videos and photos via his company email using his company
computer. Both of these actions violate company policy. Golden counters that
summary judgment is inappropriate because there are significant questions of fact
associated with the rationale provided for his termination, NorthWestern’s failure
to follow its written policy, and the disparity of treatment between himself and
similarly situated NorthWestern employees.
The Court will grant NorthWestern’s motion and dismiss this case in its
entirety for the reasons stated herein.
I. FACTUAL BACKGROUND
Tony Golden worked in the Lands and Permitting Department at
NorthWestern Energy, and was assigned to work from the company’s Missoula
office. Pat Asay served as Golden’s supervisor. During his time at NorthWestern,
Golden underwent numerous training sessions on, and was otherwise exposed to,
various company policies. Most relevant to this case are the “Code of Business
Conduct and Ethics” (“Code” or “Code of Conduct”) and the “Acceptable Use of
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Internet, Networks, and Intranet” policy. The relevant portions of these policies
are discussed at length below.
In 2006, Golden was reprimanded for using his company computer to
engage in his outside private business as a real estate broker. He met with Asay
and representatives from HR regarding the incident, and Asay issued a written
warning “under the Progressive Discipline Policy for violations of NWE’s work
performance and Code of Conduct Standards,” stating that “[o]ther than incidental
items, [Golden] must not conduct personal business at work or use company
equipment for personal use.” (Doc. 25-5 at 5-6.) Asay informed Golden that “[i]f
your performance issues are not addressed you will be subject to further discipline,
up to and including termination from employment.” (Id. at 6.)
Golden continued to engage in his personal business using company
equipment, which came to NorthWestern’s attention in 2012 when a nonemployee informed the company’s Human Resources (“HR”) department that
Golden was misusing company time and/or resources. NorthWestern conducted an
investigation and found various emails that contained explicit pornographic
material. The investigation further revealed that Golden had forwarded sexually
explicit videos and photos to other employees, as well as to non-employees. In
addition to the pornographic material, NorthWestern found approximately 1,000
3

personal business emails spanning a 5 month period on Golden’s computer.
The company held a termination meeting with Golden in May of 2012, at
which time Golden was advised of, and given an opportunity to dispute, the
investigative findings. Golden was dismissed after failing to dispute or provide
any information to contradict the findings. He was provided the opportunity to
appeal his dismissal, as discussed at length below. During the appeals process
Golden never provided any information contrary to the investigative findings that
resulted in his dismissal. The appeals committee affirmed the decision to terminate
Golden’s employment with NorthWestern Energy, and Golden brought this action
for wrongful discharge.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is proper if the moving party demonstrates “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). The movant bears the initial burden of
informing the 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) (internal quotation marks omitted). The movant’s burden is satisfied when
4

the documentary evidence produced by the parties permits only one conclusion.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986). Where the moving
party has met its initial burden, the party opposing the motion “may not rest upon
the mere allegations or denials of his pleading, but . . . must set forth specific facts
showing that there is a genuine issue for trial.” Id. at 248 (internal quotation
marks omitted).
“[T]he mere existence of some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact.” Id. at 247–48. The
elements of each claim determine which facts are material. Id. Only disputes over
facts that might affect the outcome of the suit under the governing law properly
preclude entry of summary judgment. “Where the record taken as a whole could
not lead a rational trier of fact to find for the non-moving party, there is no
genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986) (internal quotation marks and citation omitted).
III. DISCUSSION
Montana’s Wrongful Discharge from Employment Act states:
(1) A discharge is wrongful only if:
(a) it was in retaliation for the employee’s refusal
to violate public policy or for reporting a violation of
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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. Cod. Ann. § 39-2-904. Plaintiff raises claims under subsections (b) and (c).
Since the statue is disjunctive, Golden need only succeed on one of his claims for
his discharge to be wrongful under the WDEA. NorthWestern seeks summary
judgment on the claims raised under both subsections, and the Court will address
each in turn.
A. Golden was Terminated for Good Cause
An employee is wrongfully discharged if “the discharge was not for good
cause and the employee had completed the employer’s probationary period of
employment.” Id. Golden was a long-term NorthWestern employee, and
NorthWestern does not argue that he had failed to complete any probationary
period of employment. Thus, the sole question before the Court under this
subsection of the WDEA is whether Golden was terminated for “good cause”.
“Good cause” is defined as “reasonable job-related grounds for dismissal”
based on either: (1) “failure to satisfactorily perform job duties; (2) “disruption of
the employer’s operation”; or some other (3) “legitimate business reason.” Mont.

6

Code. Ann. § 39-2-903(5). The Montana Supreme Court has defined a “legitimate
business reason” as one that “is neither false, whimsical, arbitrary or capricious,
and it must have some logical relationship to the needs of the business.” Buck v.
Billings Montana Chevrolet, Inc., 811 P.2d 537, 540 (Mont. 1991). The Court has
also consistently reiterated that when “applying this definition we stress the
importance of the ‘right of an employer to exercise discretion over who it will
employ and keep in employment.’” McConkey v. Flathead Electric Co-op., 125
P.3d 1121, 1126 (Mont. 2005) (quoting Buck, 811 P.2d at 540). “It is inappropriate
for courts to become involved in the day-to-day employment decisions of a
business.” Id. “Of equal importance to this right, however, is the legitimate
interests of the employee to secure employment.” Buck, 811 P.2d at 540. The
“balance should favor an employee who presents evidence, and not mere
speculation or denial, upon which a jury could determine that the reasons given for
his termination were false, arbitrary or capricious, and unrelated to the needs of
the business.” Morton v. M-W-M, Inc., 868 P.2d 576, 579 (Mont. 1994).
In order to “defeat a motion for summary judgment on the issue of good
cause, the employee may either prove that the given reason for the discharge is not
‘good cause’ in and of itself, or that the given reason ‘is a pretext and not the
honest reason for the discharge.’” Becker v. Rosebud Operating Services, Inc., 191
7

P.3d 435, 441 (Mont. 2008) (quoting Johnson v. Costco Wholesale, 152 P.3d 727,
734 (Mont. 2007)).2 Golden must present “evidence, and not mere speculation or
denial.” Kestell v. Heritage Health Care Corp., 858 P.2d 3, 7 (Mont. 1993).
NorthWestern’s “good cause” justification for dismissing Golden is a
combination of disruption of its operations and additional legitimate business
reasons. Essentially, NorthWestern states that Golden was dismissed because of
his use of company time and equipment to facilitate his personal business –
behavior that he was previously disciplined for – and because of his receipt,
storage, and distribution of pornographic material using his company computer
and email address. Both behaviors violate company policy.
1. Golden’s Receipt, Storage, and Transmission of Pornographic
Material Using his Company Computer in Violation of NorthWestern’s
Express Policy Constitutes Good Cause for Dismissal
It is undisputed that Golden received extensive training related to
NorthWestern’s various policies, including the company’s Code of Conduct, as
well as annual ethics training. Golden knew that he was required to abide by the
Code of Conduct, and certified that he read and would abide by it. The Code
2

The Court notes that Golden does not have to establish pretext in order to survive
summary judgment as to good cause, despite NorthWestern’s claims to the contrary on pages 2425 of its brief, (Doc. 24), and elsewhere. See Marcy v. Dallas Airlines, 166 F.3d 1279 (9th Cir.
1999) (holding that “proof that the employer acted in bad faith by using a pretext to discharge its
employee is only one possible way of demonstrating that the employer’s stated reason was not a
legitimate one”).
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explicitly states that violations of company policy may result in disciplinary
measures, including possible termination of employment.
NorthWestern’s Acceptable Use of Internet, Networks and Intranet policy
states:
The display of sexually explicit graphics or documents on
any NorthWestern Energy computer is a violation of the
Anti-Harassment Policy and the Code of Business Conduct
and Ethics. In addition, sexually explicit or pornographic
materials may not be archived, stored, distributed, edited,
or recorded using NorthWestern Energy computers. Use of
NorthWestern Energy resources for this type of activity is
grounds for immediate dismissal.
(Doc. 25-12 at 4).
After a non-employee contacted the HR department and alleged that Golden
was misusing company time and resources, NorthWestern conducted an
investigation and discovered emails that included sexually explicit pornographic
material. Specifically, the emails contained slide shows of women exhibiting their
genitals, images of women engaging in sexual acts with other women, images and
videos of women masturbating, striptease slide shows, video of a woman
performing oral sex on a man, and graphic videos of sexual intercourse and
ejaculation. The investigation also revealed that Golden had used his company
email to send sexually explicit materials to other NorthWestern employees, as well

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as to people outside of the company. At no point has Golden contested the
investigation’s findings. He admitted to using “poor judgment” by receiving and
transmitting sexually explicit photos and videos through his company email
account.
NorthWestern has a legitimate business interest in creating an environment
that is free of pornographic material. The mere presence of such material may have
a tendency to offend, denigrate, or alienate members of a workforce that has the
right to work in an environment free from the various forms that sexual
harassment can take. While the mere presence of pornographic material in the
workplace arguably gives rise to a legitimate business interest, Golden did not
merely use his company computer to access pornographic material, he used his
company email account to actively circulate this material to both employees and
non-employees alike. While the Court does not have any specific information
regarding the employees Golden emailed, it has no difficulty concluding that the
circulation of these materials within the workplace enhances the possibility that
they could reach an employee to whom they would be offensive or perceived as a
form of sexual harassment. Needless to say, the presence and circulation of
pornography in the workplace has the potential to expose NorthWestern to liability
that it has a legitimate interest in avoiding. NorthWestern also has a legitimate
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business interest in preventing pornographic material from being circulated
outside of the company through the use of an official company email address. Not
only does this behavior have the potential to damage NorthWestern’s reputation in
the community, it creates potential legal exposure.
Sexual harassment in the workplace is a serious matter and NorthWestern is
well within its rights to prevent it using all reasonable means. Pornographic
material simply has no place in this work environment, and Northwestern has a
legitimate business interest in creating and appropriately enforcing policies to
serve this end.
NorthWestern’s policy explicitly proscribes the use of company computers
for storage and distribution of sexually explicit materials, and just as clearly states
that such behavior may result in termination. It is uncontested that Golden used his
company computer and company email address to store and distribute
pornographic materials. This behavior in and of itself created a legitimate business
interest – and thereby good cause under the WDEA – for Golden’s termination.
In order to defeat NorthWestern’s motion for summary judgment on the
issue of good cause, Golden may “either prove that the given reason for the
discharge is not ‘good cause’ in and of itself, or that the given reason ‘is a pretext
and not the honest reason for the discharge.’” Becker, 191 P.3d at 441 (quoting
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Costco, 152 P.3d at 734). Golden must present “evidence, and not mere
speculation or denial.” Kestell, 858 P.2d at 7.
As an initial matter, Golden does not claim pretext, instead limiting his
arguments to lack of good cause. Golden argues that he did not violate antiharassment policies because he did not actually harass anyone or subject anyone to
a hostile work environment, and because none of his fellow employees
complained about his possession or distribution of pornographic material. While
this may be true, it does not negate NorthWestern’s legitimate business interest in
creating and enforcing policies that promote a pornography-free workplace. As
stated above, NorthWestern’s policy clearly prohibits the storage and distribution
of this type of materials. Just because this policy falls under the umbrella of the
Company’s Anti-Harassment Policy does not mean that actual harassment must
have occurred for the policy to have been violated and for good cause to exist.
This policy was designed to prevent certain harms; those harms need not occur for
an employee to be disciplined for violating the policy. It is also worth noting that
in the context of sexual harassment, a lack of complaints about an employee’s
behavior does not necessarily mean that his colleagues were not offended or
otherwise negatively impacted. This is a very sensitive and deeply personal topic,
and it is certainly conceivable that a coworker might not be comfortable reporting
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Golden’s behavior despite being offended by it.
Next, Golden argues that his termination was arbitrary and capricious in
light of other situations in which similar violations resulted in less severe
disciplinary penalties, pointing to the Comparative Disciplinary Actions document
that NorthWestern prepared for the benefit of the appeals committee. That report
stated that one employee who “had inappropriate and sexually explicit material on
his computer” was issued Decision Making Leave (“DML”), and that the
employee had no previous disciplinary record. (Doc. 27-3 at 47.) Golden correctly
identifies Johnson v. Costco, 152 P.3d 727 (Mont. 2007) as the seminal case on
the arbitrary application of employment policies. In that case, Costco dismissed
Johnson for violating the company’s “grazing” policy, which prohibited the
consumption of food intended for sale. In reversing the district court’s order
granting judgment as a matter of law, the Montana Supreme Court held that
evidence existed that “may lead a jury to believe that Costco did apply its
employment policies arbitrarily” with respect to Johnson. Costco, 152 P.3d at 734.
The Court cited the fact that “several individuals testified that in the years leading
up to Johnson’s discharge, many employees had violated the grazing policy
repeatedly. Some employees personally admitted as much at trial.” Id.
Additionally, Johnson provided testimony that following his dismissal, employees
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still knowingly violated the policy and were not discharged. Id.
Golden paints a picture of the culture at NorthWestern where the viewing
and circulation of pornography among employees is relatively commonplace. He
provides no evidence to support such a claim, but merely references a
conversation in which an employee in the IT department alludes to the fact that
such material was regularly circulated. Unlike in Costco, there is no evidence here
that NorthWestern employees routinely violated the policy under which Golden
was terminated, either before or after his termination. The single example of an
employee who received DML because pornographic material was discovered on
his computer does not set a precedent that NorthWestern must follow every time
an employee commits a similar violation, lest its alternate course of action be
deemed arbitrary. Furthermore, there is no evidence that this employee distributed
pornographic material, which Golden admits to doing, and this employee had no
previous disciplinary record, which cannot be said for Golden.
The Court finds that Golden’s violation of NorthWestern’s policy regarding
the use of company computers to store and transmit sexually explicit material – in
and of itself, regardless of Golden’s use of company equipment to conduct his
personal business – constitutes good cause for termination under the WDEA.
Accordingly, the Court need not reach a decision regarding Golden’s personal real
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estate business in order to resolve this motion, but it will briefly address that issue
nonetheless.
2. Golden’s Use of NorthWestern’s Equipment for his Personal Real
Estate Business, Coupled with his Prior Censure for the Same Offense,
Constitutes Good Cause for Termination
Relevant to Golden’s conducting personal business at work using company
equipment, the Code of Conduct provides the following example:
Q. I have a part-time consulting business on the side. May
my consumers contact me during work hours or send
messages to my NorthWest Energy e-mail?
A. No. While occasional personal use of company office
equipment is allowed if minimal and incidental, using
company equipment for a personal business is
inappropriate.
In 2006, Golden was formally reprimanded for, inter alia, “violat[ing] NWE’s
Code of Conduct by conducting personal business on company time using
company property.” (Doc. 27-1 at 5). In the written warning letter, Pat Asay stated,
“I have received numerous complaints that you are discussing personal business
on company time and/or have occasionally used company property . . . to conduct
personal business.” (Id.) Asay warned Golden that if “your performance issues are
not addressed you will be subject to further discipline, up to and including
termination from employment.” (Id.) As to this incident, Golden testified that in

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“2006 I believe I was acting inappropriately at work. I was taking advantage of
work time. I do believe that my real estate activities did have some interference
with my work performance at NorthWestern Energy.” (Doc. 27-5 at 7.)
The investigation NorthWestern launched in 2012 following the report from
a non-employee regarding Golden’s inappropriate use of company time and
resources revealed approximately 1,000 personal business emails on his computer,
covering a 5 month period. At his deposition, Golden acknowledged the
following: (1) he engaged in his businesses while employed at NorthWestern; (2)
he used his company email account for corresponding with his clients and as his
primary email address; (3) he used his company cell phone as a number to contact
him on marketing material; (4) he printed buy/sell agreements from his company
computer; and (5) he accessed the Multiple Listing Service through his company
computer.
NorthWestern’s Code of Conduct explicitly states that the use of company
equipment for conducting work related to a personal business is not permitted, and
that violation of the policy contained therein could result in discipline, including
possible termination. Golden received repeated training on the Code of Conduct,
and had already been disciplined for violating this specific policy. He does not
contend that any of NorthWestern’s investigatory findings were false.
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NorthWestern has a legitimate business interest in how its employees use
company equipment – and company time – and may reasonably circumscribe
certain uses. NorthWestern also had a legitimate business interest in enforcing a
policy put in place to achieve such a goal, particularly in situations involving
multiple infractions, and where the possibility of termination for such infractions
is clearly spelled out in the policy itself. See Kuszmaul v. Sterling Life Ins. Co.,
282 P.3d 665, 670 (Mont. 2012).
Golden advances several arguments as to why good cause did not exist,
based on what he claims are genuine issues of material fact; he does not allege
pretext. Golden first argues that Asay and a HR representative gave him
permission to engage in his real estate business on a limited basis while at work,
and using company equipment. Specifically, Golden testified that during his 2006
disciplinary proceeding, he told his supervisors and the HR representative that the
only way he could eliminate all phone calls and emails related to his personal
business would be for him to stop selling real estate altogether. He testified that he
was told that he did not have to stop selling real estate, and that based on the
meeting, it was his impression that Asay understood and accepted that he would
engage in incidental real estate activities while at NorthWestern. Golden points to
the written warning letter related to the 2006 censure in which Asay wrote: “Other
17

than incidental items, you must not conduct personal business at work or use
company equipment for personal use. In this regard you acknowledge your
understanding of the Code of Business Conduct.” (Doc. 27 at 6.) This is
essentially a restatement of the Code’s language addressing the personal use of
company equipment.
Golden relies heavily on the Ninth Circuit’s decision in Blair v. Schwan
Food Co., 454 Fed.Appx. 553 (2011), to support his argument that
NorthWestern’s tacit approval of, or at least ambiguous approach to, his use of
company equipment for his personal business. Schwan Food Company dismissed
Blair for hiring a “lumper,” or a non-employee paid in cash to unload a truck,
which Blair admitted to. United States Magistrate Judge Carolyn Ostby denied
Schwan’s motion for a directed verdict and motion for a altered or amended
judgment, and the Ninth Circuit affirmed on the basis that evidence existed that
could lead a rational jury to believe that Schwan acted arbitrarily in terminating
Blair. Specifically, the Court points to Blair’s testimony that “his supervisor had
emailed written approval of his use of a lumper and that hiring lumpers was a
longstanding, common, and condoned practice among Schwan’s employees.”
Blair, 454 Fed.Appx. 553, 554 (9th Cir. 2011). In addition to Blair’s testimony, his
supervisor testified at trial that he had emailed Blair instructions to keep a specific
18

person “lumping until we get him through the system,” and Schwan’s HR manager
acknowledged that “there had been incidents of lumping within the company in
the past.” Id.
The language from Asay’s written warning and Golden’s testimony as to
what he was told during his 2006 censure meeting does not constitute
“permission” to conduct his personal business in the same manner as the email
from Blair’s supervisor. They amount to nothing more than a reiteration of the
Code provision that he was being censured for violating. As Golden himself
testified, he was under the impression that all parties understood that “there was
going to be some minimal, incidental real estate activities while I was working in
Missoula.” (Doc. 26 at 15 (emphasis added).) NorthWestern’s failure to
completely ban Golden from conducting any and all personal business at work
demonstrates a level of flexibility and understanding on the part of NorthWestern
towards Golden, and does not fall into the same category as the supervisor’s
explicit instruction to Blair. Additionally, unlike in Blair, Golden had been
previously disciplined for the same reason that he was ultimately terminated.
Finally, in contrast to Blair, Golden’s termination was not based solely on the
behavior which he claims the company approved, but also on his use of company
property to store and distribute pornographic materials.
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Next, Golden argues that since his 2006 censure was given a 9 month
effective date, he could reasonably conclude that passage of the 9 months would
“render the disciplinary action irrelevant to his employment status.” (Doc. 26 at
19.) This argument is disingenuous and unpersuasive. Although Pat Asay, the
author of the written warning that contained the 9 month effective date, could not
recall the precise meaning of that provision during his deposition 6 years after the
fact, the warning itself clearly states that “[d]uring this period, you will not be
eligible for incentive compensation.” (Doc. 25-5 at 6.) The effective date does not
nullify NorthWestern’s ability to take this previous infraction into consideration
when deciding how to react to future violations.
As a final point on Golden’s ambiguity argument, following his reprimand
in 2006, Golden certified on multiple occasions that he understood the Code and
that he accepted his responsibility to abide by it. If any ambiguities existed in
Golden’s mind as to what was and was not appropriate under the Code provision
upon which his reprimand was based, he easily could have asked for clarification
from the HR department, the legal department, or from a supervisor or manager.
The fact that Golden failed to do so undermines his argument that NorthWestern’s
agents “muddi[ed] the waters” regarding the amount of personal business he was
permitted to do at work (Doc. 26 at 14).
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Golden’s next argument focuses on NorthWestern’s determination that he
spent a “significant amount of company time and company property to operate his
personal real estate business” – essentially that his use of company property
exceeded the parameters of the “incidental” use permitted under the Code. Golden
calls into question the methodology used to reach this determination, arguing that
HR representative Jennifer Rangitsch did not attempt to quantify how much time
Golden actually spent on personal business, instead basing her finding on the
volume of emails, thus creating a genuine issue of material fact.
The WDEA does not require NorthWestern to conduct an exhaustive
quantitative study to determine the precise amount of time Golden spent
conducting his personal business in order to justify its finding that he spent
“significant time” on that business. The presence of over 1,000 emails spanning a
5 month period, combined with the publication of his company email and phone
number in association with his personal business, and taken within the context of
his prior violation of the same policy gives rise to good cause. NorthWestern made
the decision to dismiss Golden based on considerable, undisputed evidence of
repeated misuse of company property that it may properly deem as “significant”
without having to prove the point to a jury. This is the type of day-to-day
employment decision that is appropriately left to the employer. See McConkey,
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125 P.3d at 1126 (“it is inappropriate for courts to become involved in the day-today employment decisions of a business”).
Finally, Golden argues that his dismissal was arbitrary and capricious
pursuant to Costco, in light of other situations in which similar use of computers
and other company property resulted in less severe disciplinary penalties.
Golden’s argument stretches the Costco decision too far. As an initial matter,
Golden alleges that several individuals called him to report that they had also used
their company computers for personal reasons without consequence. This wholly
unsupported claim constitutes hearsay, and is insufficient to create the genuine
issue of material fact required to survive summary judgment.
Next, Golden points to the Comparative Disciplinary Actions report, as well
as material filed under seal related to a specific NorthWestern supervisor to
support his claim of disparate treatment. However, only two of the employees
Golden cites who received DML or some lesser form of penalty violated the same
policy as Golden. These employees ran separate personal businesses during
company hours, and their phone and email records indicated that they spent a
substantial amount of time on their personal businesses. However, there is no
indication that these employees had been previously disciplined for violating the
same policy, nor that any pornographic material was found on their computers.
22

Even in spite of these distinctions, Costco does not require that each violation of
the same policy must be met with the exact same discipline. In that case, the
Supreme Court found an issue of material fact existed based on testimony
regarding “years of violations of Costco’s grazing policy by several employees,”
combined with testimony that the policy continued to be violated on a daily basis
following Johnson’s dismissal. Costco, 152 P.3d 727, 734 (Mont. 2007). Unlike in
Costco, there is no evidence of a long-standing or continued failure to enforce the
policy at issue here.
Neither Costco nor the WDEA require absolute uniform treatment among
employees for the same or similar acts. Employers must be afforded a degree of
freedom when dealing with each violation of a particular policy. Employers are
permitted to take into account the specifics of each violation, as well as the
differences between employees’ records, job responsibilities, and other
individualized characteristics.
On a final note, the Comparative Disciplinary Actions report mentions a
NorthWestern employee who was terminated for running a personal business at
work based on the employee’s email and phone records. The employee “had
received a level two discipline after the misuse was initially identified but
continued to run the personal business at work.” (Doc. 27-3 at 46.) Of the
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incidents contained in the report, this is the most similar to Golden’s case.
NorthWestern’s decision to terminate this employee further undermines Golden’s
argument because it demonstrates in that instance a uniformity of enforcement,
rather than a disparity.
B. NorthWest Did Not Violate Express Provisions of its Own Written
Personnel Policy
Golden also contends that his termination was wrongful pursuant to
Montana Code Annotated § 39-2-904(1)(c), because NorthWestern violated
express provisions of its own written personnel policy. The Employee Discipline
Policy in effect at the time of Golden’s termination included the following
provision, which Golden cites as the basis for this argument:
B.

The following steps must be followed in all cases of discipline under
this Policy:
1.

Human resources must be contacted:
a.

b.
2.

In situations where a formal investigation process may
reasonably be perceived as warranted, and
Prior to delivering any disciplinary action.

Supervisors and the human resources generalist should work
together in determining the appropriateness of, and approach to
address, any disciplinary actions.

Pursuant to this policy, HR representative Jennifer Rangitsch developed a plan

24

that included the following language: “Allow for due process so that Tony may
provide a legitimate explanation with regard to his actions as they relate to the
findings of the investigation.” (Doc. 25-11 at 3.) The crux of Golden’s argument is
that NorthWestern failed to provide “due process,” and thus violated its own
written personnel policy. The Court finds this argument unconvincing on three
levels.
First, Golden does not actually allege that NorthWestern violated the
“express provisions” of the “written personnel policy” quoted above. Instead, he
claims that the company did not act in conformity with the specific plan Rangitsch
developed to address this situation pursuant to that written policy. Golden offers
no support for such an extension of the express language of § 39-2-904(1)(c) to
cover such plans, which do not appear to fall into the rather narrow category of
“express provisions” of NorthWestern’s “written personnel policy.”
However, even if the statutory language covered violations of case-specific
plans like the one Rangitsch developed, Golden overstates the meaning of the term
“due process” and its requirements in this situation. Golden essentially argues that
because NorthWestern used the term “due process,” he implicitly became entitled
to the same pre-termination Constitutional due process afforded to tenured public
employees by Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985).
25

This leap is simply too great, given the requirement that the policy be “express”
and “written” in order for an employee to have a colorable cause of action for
wrongful discharge. Furthermore, such incidental use of the term “due process” by
a private party does not create a Constitutional right or cause of action. Quite
simply, as an employee of a private corporation, Golden is not entitled to
Loudermill’s due process requirements.
Finally, even if the Loudermill standard was applicable here, it is clear that
NorthWestern provided sufficient due process. In Gilbert v. Homar, the Supreme
Court clarified the Loudermill standard, stating that “a public employee
dismissible only for cause [is] entitled to a very limited hearing prior to his
termination, to be followed by a more comprehensive post-termination hearing.”
520 U.S. 924, 929 (1997). This hearing “need only include oral or written notice
of the charges, an explanation of the employer's evidence, and an opportunity for
the employee to tell his side of the story.” Id. NorthWestern held a termination
meeting where Golden was presented with the company’s investigative findings,
and was provided an opportunity to dispute those findings. He was afforded
approximately 15 minutes to review the findings, gather his thoughts, and provide
any contradictory information. Furthermore, Golden was provided with an appeal
process conducted by a committee comprised of five NorthWestern officers, three
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of whom Golden selected. The committee upheld Golden’s termination after he
failed to provide information to contradict the findings upon which his termination
was based. This process satisfies Loudermill’s due process standard as clarified by
Gilbert.
While Golden is clearly not satisfied with NorthWestern’s decision to
terminate him or the process it used to reach that decision, he has failed to offer
any evidence that NorthWestern violated any of the express provisions of its
written personnel policy.
IV. Conclusion
NorthWestern dismissed Golden for conducting personal business at work
using company equipment, and for using his company email and computer to
receive, store, and transmit pornography in violation of company policy. Under the
facts of this case, each basis constitutes good cause under the WDEA, and the
combination of the two lends even more support to NorthWestern’s position.
In addition, Golden has failed to present any evidence that NorthWestern
violated the express provisions of its own written personnel policy.
Golden has not presented any genuine issues of material fact, and
NorthWestern is entitled to summary judgment on Golden’s WDEA claims.
Accordingly,
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IT IS ORDERED that NorthWestern’s motion for summary judgment (Doc.
23) is GRANTED. This case is DISMISSED. All pending motions are DENIED as
moot, and all dates and deadlines in this case are VACATED.
Dated this 1st day of April, 2014.

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