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Ober E. Spear v. State of Montana

July 24, 2012

OBER E. SPEAR, PLAINTIFF AND APPELLANT,
v.
STATE OF MONTANA, MONTANA HIGHWAY PATROL, COLONEL MIKE TOOLEY AND KIM FLATOW, DEFENDANTS AND APPELLEES.



APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DV 10-543 Honorable Susan P. Watters, Presiding Judge

The opinion of the court was delivered by: Justice Brian Morris

Submitted on Briefs: June 12, 2012

Decided: July 24, 2012

Filed:

Clerk

Justice Brian Morris delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2 Ober E. Spear (Spear) appeals from the District Court's order dismissing his wrongful discharge complaint. We affirm.

¶3 Spear began work as a Montana Highway Patrol (MHP) trooper in 1958. Spear applied for permanent disability treatment in 1962. MHP placed Spear on sick leave. The Retirement Board (Board) held two hearings. The Board determined that Spear did not have a permanent and total disability due, in part, to Spear's admission that he had gone hunting, bowling, and water skiing following his injuries. Spear appealed and this Court affirmed. Spear v. MHP Retirement Board, 149 Mont. 7, 422 P.2d 348 (1967).

¶4 Spear had returned to "light duty" with MHP in 1962 while his case was still pending. Spear quit reporting for duty on December 12, 1962. Spear never again performed work for MHP.

¶5 Spear made a series of unsuccessful attempts to receive further benefits. Spear filed a petition for sick leave benefits in 1966. He requested a review of his previous petition for disability requirement in 1974. Spear contacted MHP in 1983 concerning benefits that he felt he had been denied. He again contacted MHP in 1984 claiming additional sick leave benefits. Spear further attempted to claim additional sick leave benefits in 1985 based upon a statute passed in 1979. Spear waited about a decade before he requested another review of his disabilities claim in 1996 from the Public Employees' Retirement Division.

¶6 Spear contacted MHP during 1999-2000 concerning additional sick leave benefits. Assistant Attorney General Kim Kradolfer (Kradolfer) responded to Spear in March 2000 to address why Spear was not entitled to any additional benefits from MHP. Kradolfer sought to clarify Spear's "misconception" that he still worked for MHP. Kradolfer informed Spear that his employment with MHP had ended in December 1962 when he stopped reporting for duty.

¶7 MHP's chief administrator, Mike Tooley (Tooley), wrote to Kim Flatow (Flatow) of the Montana Public Employees Retirement Administration on August 31, 2009, in response to a request from Flatow. Spear apparently had been inquiring with Flatow regarding his retirement eligibility. Tooley noted that Spear had not been an employee with MHP since at least 1982 and that Spear was not in MHP's records.

ΒΆ8 Spear filed a "wrongful dismissal" claim against MHP and the State of Montana on March 26, 2010. Spear alleged that Tooley's letter had "effectively discharged" him from employment with MHP. The District Court dismissed Spear's complaint on two grounds. The court determined that Spear's employment had been "severed" in 1962 when he quit reporting to duty. The court also determined that, even if Spear had a viable claim, Kradolfer's March 2000 letter effectively had put him on notice that MHP no longer considered him an employee. The filing of his ...


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