United States District Court, D. Montana, Great Falls Division
FINDINGS AND RECOMMENDATION AND ORDER
Johnston, United States Magistrate Judge
Pamela Jo Polejewski (“Ms. Polejewski”) worked at
Crossroads Correctional Center (“CCC”) in Shelby,
Montana from January of 2004 to July of 2004, and was
re-hired to work as a registered nurse on August 4, 2014.
(Doc. 18 at 2). At all times while Ms. Polejewski was
employed to work at CCC, she was an employee of CCA of
Tennessee, LLC. (Id. at 5). On April 1, 2016, Ms.
Polejewski was called into Warden Douglas Fender's office
and informed that her employment was terminated, effective
immediately. (Id. at 2). During this meeting, Ms.
Polejewski was provided with the employer's grievance
process and the appropriate form to fill out should she wish
to contest the grounds for her termination. (Id.)
Polejewski began the grievance process and submitted a
completed grievance form on April 14, 2016. (Id. at
4). She then met with Warden Fender in accordance with the
grievance process on June 22, 2016, after which Warden Fender
issued a written denial of her grievance. (Id.) On
June 28, 2016, the written denial was mailed to Ms.
Polejewski, which included information regarding the
procedure to appeal Warden Fender's decision and the
appropriate forms to fill out if she wished to appeal (called
“Step Three” of the grievance procedure).
(Id. at 4-5). Ms. Polejewski received the June 28,
2016 letter, and responded on July 3, 2016, with an email
stating that she disagreed with Warden Fender's final
determination, and that if there were administrators
“interested in hearing my grievances at a Step 3
level[, ] that is fine.” (Doc. 23-2 at 1). Ms.
Polejewski, however, did not submit the appropriate Step
Three form which her employer had provided to her. (Doc. 18
at 5). On November 9, 2016, CCA of Tennessee, LLC changed its
name to CoreCivic of Tennessee, LLC
(“CoreCivic”). (Id. at 5).
September 30, 2016, Ms. Polejewski filed an action pro se,
claiming she was wrongfully discharged under the Montana
Wrongful Discharge from Employment Act (“WDEA”),
and also made a claim of blacklisting. (Doc. 2).
CoreCivic seeks partial summary judgment on the wrongful
discharge claim, stating that Ms. Polejewski failed to
exhaust its grievance policy, which is a complete bar to her
claim. (Doc. 14). On June 12, 2016, Ms. Polejewski filed a
Motion for Leave to File a Third Amended Complaint, which
CoreCivic opposed. (Docs. 24, 28). CoreCivic also moved to
strike Ms. Polejewski's Response to its Reply. (Doc. 32).
Finally, Ms. Polejewski requested leave of Court to file a
Response to Defendant's Reply. (Doc. 37). On October 4,
2017, the Court held a hearing on these motions. (Doc. 50).
initial matter, Ms. Polejewski, a pro se plaintiff, has filed
three Complaints to date, none of which name the correct
defendant, CoreCivic of Tennessee, LLC. In order to avoid
undue confusion, at the hearing, the Court moved sua
sponte to amend the caption of this case to name
“CoreCivic of Tennessee, LLC” as the proper
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. The party seeking summary judgment bears the
initial burden of demonstrating the absence of any genuine
issue of material fact. Celotex v. Catrett, 477 U.S.
317, 323-24 (1986). If the movant meets this initial burden,
the Court must grant summary judgment unless the non-moving
party can go beyond the mere pleadings and identify
“specific facts showing that there is a genuine issue
for trial.” Id. at 324. The “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.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986) (emphasis in original).
Court is required to draw all reasonable inferences in a
light most favorable to the non-moving party. Scott v.
Harris, 550 U.S. 372, 378 (2007). Additionally,
“in the context of a motion for summary judgment where
a litigant is proceeding pro se, the court has an obligation
to construe the pleadings liberally and to afford the pro se
litigant the benefit of any doubt.” Radi v.
MacDonald, 2006 WL 2604680, *2 (D. Mont. Sept. 11, 2006)
(citing Baker v. Mc Neil Island Corrections Ctr.,
859 F.2d 124, 127 (9th Cir. 1988)).
CoreCivic's Motion for Partial Summary Judgment should be
granted because Ms. Polejewski failed to completely exhaust
CoreCivic's written internal procedures to appeal her
moves for partial summary judgment on Ms. Polejewski's
wrongful discharge claim. The WDEA provides the exclusive
remedy for a wrongful discharge from employment claim. Mont.
Code Ann. § 39-2-902.
WDEA provides that if the employer “maintains written
internal procedures . . . under which an employee may appeal
a discharge within the organizational structure of the
employer, ” an employee is required to “exhaust
those procedures” before filing an action under the
WDEA. Mont. Code Ann. § 39-2-911(2). An employee's
failure to exhaust her administrative remedies is a defense
to a claim under the WDEA. Id. Subsection (3)
requires the employer to notify the discharged employee of
“the existence of ...