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Hirsch v. City of Choteau

Supreme Court of Montana

January 8, 2019

KELLY HIRSCH, Plaintiff and Appellant,
v.
CITY OF CHOTEAU, by and through the City Council and Mayoral office, Respondent and Appellee.

          Submitted on Briefs: December 5, 2018

          APPEAL FROM: District Court of the Ninth Judicial District, In and For the County of Teton, Cause No. DV 17-007 Honorable John W. Parker, Presiding Judge

          For Appellant: Kelly Hirsch, self-represented, Choteau, Montana

          For Appellee: Jordan York Crosby, Andrew T. Newcomer, Ugrin Alexander Zadick, P.C., Great Falls, Montana

          JIM RICE JUSTICE

         ¶1 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 Montana Reports.

         ¶2 Plaintiff Kelly Hirsch (Hirsch) appeals the order of the District Court granting summary judgment to Defendant City of Choteau (City) and dismissing his complaint alleging wrongful discharge from employment.

         ¶3 Hirsch was the Public Works Director for the City. In December 2015, shortly after returning from a 30-day suspension related to his job performance, Hirsch was fired by the City's mayor, Jack Conatser, for inappropriate workplace behavior. Hirsch retained attorney Patrick Flaherty, who filed a grievance with the City on Hirsch's behalf, challenging the discharge and asserting procedural and due process violations. On March 9, 2016, the Choteau City Council, while not concluding Hirsch's discharge was wrongful, nonetheless granted Hirsch's due process claim. The Council reinstated his employment status to paid administrative leave, paid back pay to Hirsch, ordered Conatser to provide a letter outlining why discipline, including termination, was appropriate, and scheduled a due process hearing on March 17, 2016. The purpose of this hearing was to allow Hirsch to present evidence or a defense regarding the Mayor's proposed discipline. Flaherty requested a continuance on Hirsch's behalf, but Jordan Crosby, the City's attorney for this matter, informed Flaherty his request could only be granted by the Council, and would be considered at the upcoming hearing.

         ¶4 On March 16, 2016, the day before the hearing, Crosby conveyed to Flaherty an offer to resolve Hirsch's claims against the City. As stated in his Amended Complaint, Hirsch met with Flaherty on March 16th to discuss the City's settlement offer. Though initially reacting unfavorably to the offer, Hirsch acknowledged that when Flaherty called him later to inquire whether he wanted to accept the City's offer, Hirsch responded, "yeah, whatever, we're done."[1] Flaherty then called Crosby that afternoon to advise her that Hirsch had accepted the offer. Following the phone call, Flaherty sent Crosby an e-mail confirming the terms of the parties' settlement agreement, and indicating that he and Hirsch would not appear for the due process hearing before the Council the following day. Crosby's e-mailed response confirmed her understanding that "the matter has been resolved, subject to the Council's ratification" at the hearing, and outlined the terms of the agreement, as follows:

• Six months wages (inclusive of the back wages previously discussed);
• Mr. Hirsch will resign effective immediately;
• The City will not contest unemployment [benefits] and if a response is required, will merely respond as follows: "The City does not contest this application"
• [Crosby] will prepare a standard MDTL employment release, modified to conform to the facts of this matter for a release of all claims and to include a non-disparagement and a no re-hire clause

         Flaherty further communicated with Crosby regarding attorney's fees, but made no further mention of the ...


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