United States District Court, D. Montana, Billings Division
P. WATTERS, UNITED STATES DISTRICT JUDGE.
the Court are United States Magistrate Judge Timothy
Cavan's Findings and Recommendations, filed on January
19, 2017. (Doc. 49). In his Findings and Recommendations,
Judge Cavan recommends that this Court deny Farstad's
Motion for Summary Judgment. (Doc. 39).
to 28 U.S.C. § 636(b)(1), the parties were required to
file written objections within 14 days of the filing of Judge
Cavan's Findings and Recommendations. No. objections were
filed. When neither party objects, this Court reviews Judge
Cavan's conclusions for clear error. Clear error exists
if the Court is left with a "definite and firm
conviction that a mistake has been committed."
United States v. Syrax, 235 F.3d 422, 427 (9th Cir.
reviewing the Findings and Recommendations, this Court adopts
in part and rejects in part. The Court rejects the Findings
and Recommendations to the extent they determine that Farstad
had a legitimate business reason to terminate Roedocker for
his offensive text message. The Court otherwise adopts the
Findings and Recommendations (FNRs).
the parties are familiar with the facts at issue as set out
by Judge Cavan, this Court adopts the facts as set out by
Judge Cavan, and reiterates only the ones necessary to its
sells and distributes refined petroleum products on a
wholesale basis. (Doc. 45 at ¶ 1). Farstad is
headquartered in Minot, North Dakota, and has a branch in
Billings, Montana. (Id. at ¶ 2). Farstad and
its associated retail business, Superpumper, comprise SPF
Energy. (Id. at ¶ 3). SPF was purchased by
Parkland Fuel Corp. in January 2014. (Id. at ¶
4). Merv Carter became the Director of Sales and Operations
for Farstad following the acquisition. (Id. at
began working for Farstad in 1991. (Id. at ¶
87). When Parkland acquired Farstad, Farstad had nine
managers in addition to Carver - Bruce Hest, CFO, Kirby
Mueller and Dan Dunstan, Lube Managers, Natalie Mussell,
Human Resources Director, Roger Pelzer, Health, Safety and
Environmental Manager, and four branch managers. (Doc. 43-1
at 23:1-24:7). Roedocker was the Billings branch manager and
he reported directly to Carter following the acquisition.
(Id. at ¶¶ 14-15).
January 12, 2015, several managerial-level employees in
various locations participated in a teleconference meeting.
(Doc. 16 at ¶ 17). Relevant parties included Roedocker,
Pelzer, and Minot Branch Manager Lori Thorn. (Doc. 45 at
¶ 72). Roedocker asserts that Pelzer objected to certain
issues Thorn raised during the meeting so Pelzer sent
Roedocker a text message referring to Thorn and stating,
"[w]hat's the f***ing b**ch doing?"
(Id. at 72). Roedocker responded with a text to
Pelzer and called Thorn a "c**t." (Id.).
According to both Roedocker and Pelzer, profanity is
"common, " and "rampant" at Farstad.
(Doc. 43-9 at 25:3-10; Doc. 43-11 at 145:2-3). Shortly after
the meeting, Pelzer told HR Director Mussell about
Roedocker's text message. (Id. at 110). Mussell
did not investigate the text. In fact, no action was taken on
the text message until four months later. (Doc. 43-1 at
168:25-170:2). In February 2015, Carter evaluated
Roedocker's performance and indicated Roedocker
"meets expectations." (Doc. 43-2 at 80:10-13). The
text message was not mentioned. (Id.).
months later, after another managers' meeting on April
28, 2015, Mussell initiated an investigation into
Roedocker's text message to Pelzer. (Doc. 43-1 at
169:13-170:2; Doc. 45 at ¶ 31). While the exact date is
unclear, Carter testified that Mussell informed him of the
offensive text message from Roedocker in "kind of
mid-May" of 2015, and the investigation was initiated
soon thereafter. (Id. at ¶ 73; see also Doc.
43-1 at 168:25-170:2). Farstad has provided no explanation
for the four-month delay in taking action on the text
message. Roedocker admitted during the investigation that he
sent the text message, and Carter terminated Roedocker's
employment from Farstad on May 21, 2015. (Id. at
¶¶ 73, 83).
document memorializing Roedocker's termination discusses
the various written corrective warnings Roedocker received,
the issues surrounding his communication, and finally the
text message he sent about Thorn. (Doc. 43-15). The document
concludes, "[d]ue to the seriousness of the remark from
a leader of SPF Energy and overall poor communication,
[Roedocker9 s] employment with SPF Energy is being terminated
effective immediately." (Id. at 2). Carter
testified that Roedocker was terminated for sending the text
message. (Doc. 43-1 at 192:10-15).
manager Eric Lawson testified that no one had been fired from
Farstad for profanity during his fourteen years there. (Doc.
43-8 at 14:13-15). Pelzer was reprimanded for his
participation in the text message. (Doc. 43-9 at 23:1-24). He
was not fired. (Id.).
judgment is proper when "the pleadings, the discovery
and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of
law." Fed.R.Civ.P. 56(c). An issue is
"genuine" only if there is a sufficient evidentiary
basis on which a reasonable fact finder could find for the
nonmoving party and a dispute is "material" only if
it could affect the ...