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Roos v. The City of Miles City

Supreme Court of Montana

April 30, 2019

HEATHER ROOS, Plaintiff and Appellant,

          Submitted on Briefs: February 27, 2019

          APPEAL FROM: District Court of the Sixteenth Judicial District, In and For the County of Custer, Cause No. DV 2016-72 Honorable Michael B. Hayworth, Presiding Judge

          For Appellant: William A. D'Alton, D'Alton Law Firm, P.C., Billings, Montana

          For Appellees: Gerry P. Fagan, Peter M. Damrow, Moulton Bellingham PC, Billings, Montana



         ¶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 Heather Roos (Roos) appeals from a series of orders of the Sixteenth Judicial District Court, Custer County, which ultimately dismissed all her claims against the City of Miles City, former mayor of Miles City Butch Grenz (Grenz), and Miles City police chief Doug Colombik (Colombik). We affirm.

         ¶3 Roos was hired as a 911 dispatcher in Miles City in 1999. In July 2008, she was promoted to the newly-created full-time position of dispatch supervisor by Kevin Krausz, the then-Miles City Chief of Police. Roos understood that she was to work 40 hours per week, but not necessarily on a set schedule. Colombik became Chief of Police in 2010. In 2014, Roos met with Colombik regarding her desire to change her schedule to four 10-hour shifts per week, Monday through Thursday. Colombik did not approve the change, but Roos began filling out her timecard showing four 10-hour shifts per week anyway. Once Colombik noticed this, he met with Roos and informed her that she needed to work at least part of the day on Fridays. Roos then began filling out her timecards showing 10 hours on Monday, 10 hours on Tuesday, 9 hours on Wednesday, 9 hours on Thursday, and 2 hours on Friday each week. Roos also worked at a casino during this period.

         ¶4 In May 2015, Colombik was informed that the other 911 dispatchers were complaining that Roos did not appear to be working all the hours she claimed on her timecards and was frequently unavailable in the dispatch center. Colombik began an investigation, tasking the other dispatchers with monitoring when Roos was in the office, and then informed Grenz and City Attorney Dan Rice (Rice) about his suspicions that Roos was working fewer hours than she claimed. On June 8, 2015, Colombik sought permission from Grenz to have an outside agency independently investigate the claims due to the conflicts of interest in both the Miles City Police Department (MCPD) and Custer County Sheriff's Office-specifically the Division of Criminal Investigation at the Montana Department of Justice (DCI). Grenz instructed Rice to complete the internal investigation. On June 15, 2015, Roos was placed on paid administrative leave. Roos offered to step down as dispatch supervisor on June 22, 2015. On June 24, 2015, Rice issued his initial report, which found that Roos was unable to account for 17 hours of claimed work during the two-week period that she was monitored.

         ¶5 After Roos issued a written response to Rice's report, Grenz modified Roos's suspension from paid to unpaid effective July 1, 2015, pending the conclusion of the internal investigation. After the city concluded its internal investigation, Colombik obtained approval to refer the matter to DCI at some point prior to July 14, 2015. Roos was terminated on July 17, 2015. Roos appealed her termination and was reinstated after a December 11, 2015 grievance hearing. No criminal charges were ever filed.

         ¶6 Roos filed a complaint on October 3, 2016, alleging negligence, abuse of process, defamation, violation of Montana's Anti-Intimidation Act, and spoliation of evidence. The District Court dismissed the negligence, defamation, and spoliation claims in an April 6, 2017 Order on Defendants' Motion for Judgment on the Pleadings Pursuant to Mont. R. Civ. P. 12(c). Roos then amended her complaint in August 2017 to allege abuse of process, defamation, and violation of the Anti-Intimidation Act. The District Court partially dismissed the defamation claim and dismissed the abuse of process and violation of Anti-Intimidation Act claims in a June 21, 2018 Order Granting, in Part, Defendants' Motion for Summary Judgment. After the pretrial conference, the District Court allowed the Defendants to file a summary judgment motion regarding the lone remaining defamation claim, and ultimately issued an Order Granting Defendants' Motion for Summary Judgment re: Report to DCI on July 17, 2018. With all her claims dismissed, Roos appealed to this Court, alleging that the District Court incorrectly dismissed her negligence, spoliation, abuse of process, and defamation claims.

         ¶7 We review a district court's decision on a motion for judgment on the pleadings pursuant to M. R. Civ. P. 12(c) de novo to determine if the court's decision was correct. Firelight Meadows, LLC v. 3 Rivers Tel. Coop., Inc., 2008 MT 202, ¶ 12, 344 Mont. 117, 186 P.3d 869. We review summary judgment orders de novo, performing the same M. R. Civ. P. 56 analysis as the district court. Ray v. Connell, 2016 MT 95, ¶ 9, 383 Mont. 221, 371 P.3d 391.

         ¶8 The District Court dismissed Roos's negligence claim on a motion for judgment on the pleadings. A motion for judgment on the pleadings "is properly granted when, taking all of the well-pleaded factual allegations in the nonmovant's pleadings as true, the material facts are not in dispute and the moving party is entitled to judgment as a matter of law." Firelight Meadows, ¶ 11. The District Court held that Roos's negligence claim was preempted by Montana's Wrongful Discharge From Employment Act (WDEA), § 39-2-901, et seq., MCA. The WDEA "provides the exclusive remedy for wrongful discharge from employment." Blehm v. St. John's Lutheran Hosp., Inc., 2010 MT 258, ¶ 19, 358 Mont. 300, 246 P.3d 1024; § 39-2-902, MCA.

         ¶9 Roos's negligence claim stated that "Miles City owed Heather a duty to professionally conduct an investigation before reporting Heather to DCI." The city's investigation ultimately led to Roos's termination on July 17, 2015. Though she was eventually reinstated after a grievance hearing, the District Court found that the negligence claim was "inextricably intertwined with and based [up]on" Roos's termination from employment, and therefore preempted by the WDEA. Kulm v. Mont. State Univ.-Bozeman, 285 Mont. 328, 333, 948 P.2d 243, 246 (1997). We agree. The city's investigation was completed and Colombik contacted DCI before Roos was terminated. The facts of the city's investigation and Roos's termination are inextricably intertwined, because Roos was terminated based on the city's investigation. ...

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