Submitted on Briefs: September 26, 2018
District Court of the Thirteenth Judicial District, In and
For the County of Yellowstone, Cause No. DV-17-0252 Honorable
Gregory R. Todd, Presiding Judge
Appellant: Ben T. Sather, Sather Law, PLLC, Billings, Montana
Appellee: Harlan B. Krogh, Crist, Krogh & Nord, PLLC,
Jeremiah Shea, Justice.
Pursuant to Section I, Paragraph 3(c), 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
Tye Schulz appeals the Order of the Thirteenth Judicial
District, Yellowstone County, granting JTL Group, Inc.'s
Motion for Summary Judgment. We affirm.
Schulz worked for JTL Group, Inc. (known as
"Knife-River") in various capacities for
twenty-nine years. In 2016, Schulz was working as a Project
Superintendent. Schulz reported directly to Project Manager
Eric Van Hemelryck, and Van Hemelryck reported directly to
General Manager J. Halvor Fuglevand.
On March 21, 2016, Schulz and two other Knife-River employees
were working on a job near Lodge Grass, when Schulz
discovered that fuel was siphoned from company equipment left
on the job site. On March 23, 2016, Schulz arrived on the job
site to find wet and muddy conditions due to recent rain and
snow. Schulz and another employee got their vehicles stuck,
and Schulz stated he "needed to get his pickup unstuck
with the [company] bulldozer." Schulz shut down the job
site because of the poor conditions. Schulz and the other
employee then noticed some of the heavy equipment had again
been vandalized: padlocks and battery cables had been cut and
fuel and batteries were stolen.
Schulz traveled about a mile from the job site, where there
was cellular service, and called Van Hemelryck to report the
vandalism. Van Hemelryck instructed Schulz to: (1) report the
vandalism to the Big Horn County Sheriff's Department;
(2) take photographs of the damaged equipment; and (3)
contact a private landowner to make arrangements to store the
heavy equipment on the landowner's property adjacent to
the job site. Schulz called the landowner, who lived
roughly a half-mile up the road, but was unable to reach him.
At 8:31 a.m., Schulz called the Big Horn County Sheriff's
Department to report the vandalism. Schulz arranged to meet
Deputy Mike Colvin at a specific mile marker along the road.
While waiting at the designated mile marker, Schulz "did
the incident report . . . and took some pictures . . .
." Schulz claimed he did not travel the half-mile to the
landowner's property to attempt to make arrangements
because he did not want to miss Deputy Colvin's arrival.
It is unclear whether the other employee was still present at
the job site, but Schulz did not send any employees to make
arrangements with the landowner. At 10:55 a.m., Deputy Colvin
arrived. While Schulz conversed with Deputy Colvin, the
landowner drove by the job site and stopped to speak briefly
with Schulz. Schulz stated that,
I told [the landowner] that I needed to get with him to try
and make an arrangement to maybe put equipment on his land,
but he had to get to town, and I had to get with the sheriff
to do that report, so I never actually got to really meet
with [the landowner] on that subject.
11:11 a.m., Schulz concluded his report with Deputy Colvin.
Schulz then returned to Billings, arriving around 1:00 p.m.
Schulz reported to Knife-River's West End shop and
delivered the photographs of the damaged equipment.
Around 3:30 p.m., Schulz went to Knife-River's
administrative offices, also located in Billings. There,
Fuglevand and Van Hemelryck questioned Schulz about whether
he had secured the heavy equipment. Schulz stated that he had
not, and he suggested hiring a night watchman to guard the
equipment. Fuglevand and Van Hemelryck rejected that
suggestion and instructed Schulz to return to the job site to
make an agreement with the landowner and to move the
equipment onto the private property. Schulz objected, arguing
the ground was "slop" and not suitable for moving
heavy equipment. Fuglevand disagreed, and stated that it
would not be a problem to move "tracked and
all-wheel-drive construction equipment over muddy ground . .
. ." Fuglevand again instructed Schulz to return to the
job site and secure the equipment. Schulz responded, "I
can't do that." Following this refusal, Fuglevand
told Schulz, "[y]ou're done then." Schulz
demanded a termination slip, which Fuglevand provided to him.
The termination slip stated that Schulz was terminated
because he had refused to perform his duty to secure company
equipment. That evening, Van Hemelryck went to the job site.
Van Hemelryck made a verbal agreement with the landowner that
Knife-River would blade the landowner's road in exchange
for allowing Knife-River to move the equipment onto the
landowner's property. Van Hemelryck and another employee
then moved the heavy equipment to the property.
On February 15, 2017, Schulz filed a wrongful discharge suit
against Knife-River, alleging Knife-River lacked good cause
to terminate his employment. On December 29, 2017, Knife-River
moved for summary judgment. On February 14, 2018, ...