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Golden v. NorthWestern Corp.

United States District Court, D. Montana, Missoula Division

April 1, 2014

TONY GOLDEN, Plaintiff,

For Tony Golden, Plaintiff: Elizabeth A. O'Halloran, LEAD ATTORNEY, MILODRAGOVICH DALE STEINBRENNER & NYGREN, Missoula, MT.

For NorthWestern Corporation, doing business as NorthWestern Energy, Defendant: Harlan B. Krogh, LEAD ATTORNEY, CRIST KROGH & NORD, Billings, MT.


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Dana L. Christensen, Chief United States District Judge.

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

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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]

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 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 non-employee 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 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

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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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotation marks omitted). The movant's burden is satisfied when the documentary evidence produced by the parties permits only one conclusion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 106 S.Ct. 1348, 89 L.Ed.2d 538 (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 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 ...

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