T. Brenden v. City of Billings

03/31/2020
DA 19-0067
Case Number: DA 19-0067
IN THE SUPREME COURT OF THE STATE OF MONTANA
2020 MT 72
TAD BRENDEN,
Plaintiff and Appellant,
v.
CITY OF BILLINGS,
Defendant and Appellee.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DV 17-1664
Honorable Gregory R. Todd, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Tucker P. Gannett, Amanda Beckers Sowden, Gannettt Sowden Law,
PLLC, Billings, Montana
For Appellee:
Gerry P. Fagan, Adam Warren, Moulton Bellingham PC, Billings, Montana
Submitted on Briefs: July 31, 2019
Decided: March 31, 2020
Filed:
'ig-6---4c
__________________________________________
Clerk
Justice Dirk Sandefur delivered the Opinion of the Court.
¶1 Appellant Tad Brenden (Brenden) appeals the judgment of the Montana Thirteenth
Judicial District Court, Yellowstone County, granting summary judgment to the City of
Billing (City) on his claims that the City is vicariously liable for the tortious acts of former
City employee Michael Glancy (Glancy). The dispositive issue is:
Whether the District Court erroneously concluded as a matter of law that Glancy
was not acting within the scope of his employment?
¶2 We reverse and remand for further proceedings.
PROCEDURAL AND FACTUAL BACKGROUND
¶3 The City twice employed Brenden as an air rescue firefighter/airfield maintenance
worker at the Billings Airport—once from January 2004 to March 2006 and again from
November 2012 until November 2016. Glancy was Brenden’s immediate supervisor
during both periods of employment. In December 2014, a disagreement arose between
Brenden and Glancy about shift scheduling that resulted in Brenden filing a grievance
against Glancy with the City human resources director. In subsequent depositions, Glancy
and Brenden both described the shift scheduling disagreement as the breaking point in their
professional relationship. After Brenden filed the grievance, Glancy continually
documented perceived workplace problems with Brenden for nearly two years in an
electronic log titled the “Brenden Log.” Glancy maintained the log during work hours on
his city-owned office computer at the airport. Glancy also maintained copies on his office
computer of corrective action forms he issued to Brenden, a negative annual performance
review he issued to Brenden, and Brenden’s rebuttal thereto.
2
¶4 In October 2016, while still employed by the City, Brenden applied for a switchman
trainee position with Montana Rail Link (MRL). Brendan’s job application listed Glancy
as his City supervisor. MRL accordingly called Glancy at his airport office for a reference
check on Brenden. Glancy confirmed Brenden’s city employment, gave him an
unqualified “positive reference,”1 and, in response to a specific question from MRL, stated
that Brenden was a “safe” employee. After MRL hired Brenden, he resigned his city
employment, effective November 6, 2016. His last day was Friday, November 4, 2016.
¶5 MRL maintains a “hotline” (EthicsPoint) on its internet website as a means for
employees and the public to submit anonymous complaints regarding MRL operations and
employees. On Saturday, November 5, 2016, Glancy submitted an anonymous complaint
on the EthicsPoint hotline falsely alleging that Brenden had stolen City property. The
evidence conflicts as to whether Glancy submitted his complaint using his city-owned
computer from his airport office or from home on his personal computer. In a subsequent
deposition, the City’s human resources director testified that, upon investigation by city
information technology staff, the City determined that Glancy accessed the MRL website
from his city-owned office computer at the airport for ten minutes and three seconds on
November 5, 2016. The City could not definitively determine, however, whether he
specifically accessed the MRL hotline feature of the website during that time. Glancy
subsequently admitted that he accessed the MRL website from his airport office computer
on November 5, 2016, but claimed that he did so only for the limited purpose of
1
See District Court order granting summary judgment to the City.
3
determining whether MRL had a website complaint hotline. He claimed that, after
confirming that it did, he later submitted his anonymous hotline complaint from his
personal computer at home. On that day, Glancy was on a paid, on-call duty status with
the City. On the hotline complaint form, Glancy characterized the nature of the complaint
as “[s]tealing items issued during [the] course of employment” and further elaborated that:
Tad was previously employed with the City of Billings. Upon his receipt of
his two week notice he was instructed to return all airport/city issued items
on his last day. Tad did not return uniform badges (2) valued at $200.
¶6 On November 9, 2016, MRL human resources officer Susan Twiford (Twiford)
telephoned Glancy and inquired about the anonymous allegation. MRL called Glancy
based on its prior knowledge that he was Brenden’s city supervisor, had previously
responded to MRL’s initial reference check inquiry, and was thus the person who could
best confirm or refute the truth of the allegation. During the call, Glancy told Twiford,
inter alia, that Brenden had indeed stolen city property, was also involved in a violent
incident in the workplace, had created a hostile working environment at the airport, and
that he was “an HR nightmare.” Glancy further stated that he had “tons of documentation
that you’re welcome to” and that “I’ll send . . . to you.” Glancy subsequently sent two
emails to MRL with copies of various employment records attached, including corrective
action directives issued to Brenden, a negative annual performance evaluation, and
Glancy’s “Brenden Log.” Glancy sent the email and attachments during the work day from
his airport office using his city email account. The transmittal emails included a signature
line identifying Glancy as the City “Airport Operations Supervisor.”
4
¶7 On November 10, 2016, based on the information received from Glancy on
November 9, MRL terminated Brenden’s employment on his second day on the job.
Approximately two weeks later, Glancy sent Twiford an email stating that he had heard
that their “mutual acquaintance ha[d] moved on” and that he hoped that the previously
“shared items [would] find the shredder or vault.” In April 2017, Glancy sent another email
to Twiford asking her to notify him if MRL received “any inquiries” regarding Brenden.
After learning of Glancy’s post-employment communications with MRL regarding
Brenden, the City terminated Glancy on June 22, 2017, on the ground that those
communications violated City policy.
¶8 On November 8, 2017, Brenden sued the City in district court, asserting claims for
tortious interference with business relations and negligent misrepresentation. On May 30,
2018, Brenden asserted two additional claims—defamation and breach of the Montana
constitutional right to privacy. Brenden asserted that the City was vicariously liable for
Glancy’s tortious conduct under the common law doctrine of respondeat superior. On
November 5, 2018, the City filed a motion for summary judgment on Brenden’s claims on
the asserted ground that Glancy engaged in the alleged tortious conduct outside the scope
of his employment. The City asserted that it did not authorize Glancy’s tortious conduct,
did not benefit from it, and that it was the conduct of a rogue employee acting entirely for
his own benefit. Brenden opposed the motion on the asserted ground that genuine issues
of material fact precluded summary judgment as to whether Glancy committed the alleged
tortious acts within the scope of his city employment.
5
¶9 On December 21, 2018, the District Court granted the City summary judgment on
the stated ground that Glancy engaged in the alleged tortious conduct outside the scope of
his employment. Citing Restatement (Second) of Agency § 228 (Am. Law Inst. 1958), the
court essentially concluded that it was beyond genuine material dispute on the Rule 56
record that the City did not authorize Glancy to disclose Brenden’s personnel information
and records to MRL, and that the disclosures “did not ‘grow out of’” his earlier response,
within the scope of his employment, to MRL’s initial refence check. The court reasoned
that Glancy did not have any employment-related need or obligation to provide MRL
further information regarding Brenden, much less false information. Citing Restatement
(Second) of Agency § 228(1)(c) (tortious conduct in scope of employment must be
“actuated, at least in part, by a purpose to serve the [employer]”), the court noted that
Glancy’s tortious conduct was of no benefit to the City after Brenden resigned and that its
subsequent termination of Glancy for “violat[ing] . . . workplace guidelines show[s] that
he went beyond the scope of employment and was in no part actuated by a purpose to serve
the [City].” Brenden timely appeals.
STANDARDS OF REVIEW
¶10 Summary judgment is proper only when there is no genuine issue of material fact,
and a party is entitled to judgment as a matter of law. M. R. Civ. P. 56(c)(3). Whether a
genuine issue of material fact exists or whether a party is entitled to judgment as a matter
of law are conclusions of law reviewed de novo for correctness. Winslow v. Mont. Rail
Link, Inc., 2000 MT 292, ¶ 38, 302 Mont. 289, 16 P.3d 992. We must view the Rule 56
6
factual record in the light most favorable to the non-moving party and draw all reasonable
inferences in favor of that party. Weber v. Interbel Tel. Coop., 2003 MT 320, ¶ 5,
318 Mont. 295, 80 P.3d 88; Gamble Robinson Co. v. Carousel Props., 212 Mont. 305,
311-12, 688 P.2d 283, 286-87 (1984).
DISCUSSION
¶11 Whether the District Court erroneously concluded as a matter of law that Glancy
was not acting within the scope of his employment?
¶12 Brenden asserts that genuine issues of material fact precluded summary judgment
as to whether Glancy engaged in the alleged tortious conduct within the scope of his
employment. He asserts that the Rule 56 record could conceivably support findings that
Glancy’s unauthorized conduct “grew out of” the authorized scope of his employment and
that he was at least in part motivated by an interest to serve the City. The City contrarily
asserts that Brenden’s assertion of respondeat superior fails as a matter of law because there
is no evidence that the City benefitted from Glancy’s tortious conduct or that Glancy acted
in furtherance of the City’s interest.
¶13 Distinct from direct liability for an employer’s own tortious conduct, the common
law doctrine of respondeat superior imposes vicarious liability on employers for the
tortious conduct of employees committed while acting within the scope of their
employment. Kornec v. Mike Horse Mining & Milling Co., 120 Mont. 1, 7, 180 P.2d 252,
256 (1947); Keller v. Safeway Stores, 111 Mont. 28, 35, 108 P.2d 605, 610 (1940);
7
Restatement (Third) of Agency §§ 2.04, 7.03(2)(a), and 7.07 (Am. Law Inst. 2006).2 “The
doctrine establishes a principle of employer liability for the costs that work-related torts
impose on third parties.” Restatement (Third) of Agency § 2.04 cmt. b. It recognizes, inter
alia, that the “ability to exercise control over . . . employees’ work-related conduct
enables[,] [and provides incentive for,] the employer to take measures to reduce the
incidence of tortious conduct.” Restatement (Third) of Agency § 7.07 cmt. b. See also
Billig v. S. Pac. Co., 209 P. 241, 243 (Cal. 1922) (noting that respondeat superior depends
on employer’s power and duty of control over the employee). However, the elemental
limitations of the doctrine protect employers from becoming “insurer[s] against all harm
suffered by third parties with whom [their] employees may interact.” Restatement (Third)
of Agency § 7.07 cmt. b.
¶14 For purposes of respondeat superior, a tortious act occurred within the scope of
employment if the act was either expressly or implicitly authorized by the employer or was
incidental to an expressly or implicitly authorized act. See Kornec, 120 Mont. at 8-12, 180
2
Section 28-10-602, MCA, embodies the common law doctrine of respondeat superior. See
Keller, 111 Mont. at 35-36, 108 P.2d at 610 (citing §§ 7965-66 RCM (1935)); Restatement (Third)
of Agency § 2.04 Reporter’s Notes cmt. a. Section 28-10-602 is an 1895 Montana adoption of
California’s adaptation of §§ 1253-54 of David Dudley Field’s proposed but never enacted New
York Civil Code (1865). The Montana doctrine is generally in accord with the formulation set
forth in Restatement (Third) of Agency §§ 2.04, 7.03(2)(a), and 7.07, and the predecessor sections
of the Restatement (Second) of Agency. See Saucier ex rel. Mallory v. McDonald’s Rests. of
Mont., Inc., 2008 MT 63, ¶ 64, 342 Mont. 29, 179 P.3d 481; Maguire v. State, 254 Mont. 178,
182-83, 835 P.2d 755, 758 (1992); Kornec, 120 Mont. at 8-10, 180 P.2d at 256-57; Keller, 111
Mont. at 36-38, 108 P.2d at 610-11; Restatement (Third) of Agency § 7.07 Reporter’s Notes cmt.
a. (characterizing Restatement (Third) formulation as essentially a “consolidated treatment of” the
Restatement (Second) formulation). In Montana, governmental entities are subject to vicarious
liability in respondeat superior like private parties. Kenyon v. Stillwater County, 254 Mont. 142,
146, 835 P.2d 742, 745 (1992) (citing § 2–9–102, MCA).
8
P.2d at 256-58; Keller, 111 Mont. at 36-40, 108 P.2d at 610-12; Restatement (Third) of
Agency § 7.07(2) cmt. b. See also Restatement (Second) of Agency § 228(1)(a), (c).
Expressly authorized acts include, inter alia, acts the employer specifically directed or
authorized the employee to perform. See § 28-10-402, MCA (“[a]ctual authority is
authority that the principal intentionally confers upon the agent or intentionally or
[negligently] allows the agent to believe that the agent possesses”).
¶15 Implicitly authorized acts include acts reasonably necessary or customary under the
circumstances to the performance of specifically authorized acts or functions and other acts
“of the same general nature.” Restatement (Second) of Agency § 229(1) cmt. a. See also
Kastrup v. Yellow Cab & Baggage Co., 282 P. 742, 747 (Kan. 1929) (cited in Kornec—
“[e]xpress authority to do an act carries with it authority to do those subordinate and
incidental acts which may be reasonably necessary and proper to be done, or which are
usually and ordinarily done, in order effectively to do the main thing”). Accord
§ 28-10-405(1), MCA. However, even though a “means of accomplishing an authorized
result,” an act, or the manner in which the employee performed it, may yet be “so
outrageous or whimsical” to be beyond the scope of what the employer implicitly
contemplated under the circumstances. Restatement (Second) of Agency § 229 cmt. b.
Relevant factors in determining whether an act or conduct was implicitly authorized by the
employer include, inter alia: (1) whether the act was of a type such employees commonly
perform; (2) “the time, place and purpose of the act”; (3) whether the employer had reason
to expect that the employee might so act under the circumstances; (4) the extent, if any, to
9
which the act departed from a normal or typical means of accomplishing an authorized task
or function; and (5) whether the employer furnished the instrumentality the employee used
to harm the third party at issue. Keller, 111 Mont. at 36-37, 108 P.2d at 610; Restatement
(Second) of Agency § 229(2).3 The finder of fact may infer that an employee performed
an expressly or implicitly authorized act in furtherance of the interest of the employer. See
Restatement (Second) of Agency § 235 cmt. a.
¶16 Even an act or conduct not expressly or implicitly authorized by the employer is
nonetheless within the scope of employment if the act was incidental to the performance
of an expressly or implicitly authorized act and at least partially motivated by the
employee’s intent or purpose to serve the employer’s interest. Keller, 111 Mont. at 36-40,
108 P.2d at 610-12. Accord Kornec, 120 Mont. at 9-10, 180 P.2d at 256-57; Restatement
(Third) of Agency § 7.07(2) cmt. b; Restatement (Second) of Agency §§ 228(1)(a), (c),
and 229(1). “An act may be incidental to an authorized act,” even though “an entirely
different kind of an act.” Restatement (Second) of Agency § 229 cmt. b. However, the
incidental act:
must be . . . subordinate to or pertinent to an act which the [employee] [was]
employed to perform. . . . The fact that a particular employer ha[d] no reason
to expect the particular [employee] to perform the act is not conclusive. . . .
[For example,] [a]n assault by one employed to recapture a chattel, while
entirely different from the act which he was employed to do, which was
3
See also Restatement (Third) of Agency § 7.07 cmt. b (Restatement (Third) of Agency phrases
its scope-of-employment standard in more general terms than Restatement (Second) to reflect the
modern “working circumstances of many managerial and professional employees and others
whose work is not so readily cabined by temporal or spatial limitations”—“[m]any employees in
contemporary workforces interact [with third parties] on an employer’s behalf” despite that “the
employee is neither situated on the employer’s premises nor continuously or exclusively engaged
in performing assigned work”).
10
merely to take possession of the chattel, may be within the scope of
employment, unless committed with such violence that it bears no relation to
the simple aggression which was reasonably foreseeable.
Restatement (Second) of Agency § 229 cmt. b. Thus, the fact that the employer did not
authorize the tortious conduct, the employee was disobedient, or the employee disregarded
the employer’s instruction or rule does not necessarily preclude a finding that the employee
was acting in furtherance of the employer’s interest. Kornec, 120 Mont. at 9-10, 180 P.2d
at 256-57; Keller, 111 Mont. at 38-40, 108 P.2d at 611-12; Restatement (Third) of Agency
§ 7.07(2) cmt. c; Restatement (Second) of Agency § 230. Though itself unauthorized or
disobedient, an act was incidental to expressly or implicitly authorized conduct if it “arose
out of” and was closely related to the performance of an expressly or implicitly authorized
act or function. Kornec, 120 Mont. at 9-10, 180 P.2d at 256-57. Thus, depending upon the
circumstances, an employer may be vicariously liable in respondeat superior for negligent,
willful, and malicious acts of employees committed within the scope of their employment.
Kornec, 120 Mont. at 7-8, 180 P.2d at 256; Keller, 111 Mont. at 38, 108 P.2d at 611.4
¶17 The fact that an employee’s predominant motive was self-interest does not preclude
an act from the scope of employment if the employee was motivated by any purpose or
intent to serve the employer’s interest “to any appreciable extent.” Restatement (Second)
of Agency § 236 cmt. b. Thus, a dual or mixed motive does not preclude a finding that the
4
But see Maguire, 254 Mont. at 182-85, 835 P.2d at 758-59 (finding a criminal act (rape) outside
the scope of employment for purposes of respondeat superior and declining to extend
non-delegable duty doctrine to make institutional caretaker entity vicariously liable for crime
committed against an incapacitated ward by the caretaker’s employee).
11
employee was acting in furtherance of the employer’s interest unless the employee was
engaged in “an independent course of conduct not intended . . . to serve any purpose of the
employer.” Restatement (Third) of Agency § 7.07(2) cmt. b (emphasis added). Accord
Keller, 111 Mont. at 37, 108 P.2d at 611 (personal motive does not take the act beyond the
scope of employment “unless it clearly appear[s] that the [employee] could not have been
directly or indirectly” acting in furtherance of the employer’s interest in any regard);
Webster v. Mountain States Tel. & Tel. Co., 108 Mont. 188, 198-99, 89 P.2d 602, 604-05
(1939); Restatement (Second) of Agency § 230 cmt. c (“[c]onduct is not within the scope
of employment if it has no connection with the act which the employee is required to
perform”); Restatement (Second) of Agency § 235 (an act is not within the scope of
employment if performed “with no intention to perform it as a part of or incident to a
service on account of which he [or she] is employed”).
¶18 The question of whether an employee was acting at least partially in furtherance of
the employer’s interest does not depend on whether the employer actually profited or
benefitted from the act. Taber v. Maine, 67 F.3d 1029, 1036 (2nd Cir. 1995) (noting “hasty
[modern] retreat” from that aspect of the “older conception of respondeat superior”
articulated in Restatement (Second) of Agency § 228); Perez v. Van Groningen & Sons,
Inc., 719 P.2d 676, 680 (Cal. 1986). The state of mind of the employee is determinative—
the issue is whether the employee was at least partially motivated to serve the employer’s
interest “to some extent.” Restatement (Second) of Agency § 235 cmt. a.
Accord Restatement (Third) of Agency § 7.07 cmt. b (“employee’s intention severs the
12
basis for treating” an “act as that of the employer”). The question of whether an employee
was at least partially motivated by an intent or purpose to directly or indirectly further the
employer’s interest is a question of fact for consideration under the totality of the
circumstances. Denke v. Shoemaker, 2008 MT 418, ¶¶ 73-74, 347 Mont. 322, 198 P.3d
284; Kornec, 120 Mont. at 10, 180 P.2d at 257; Keller, 111 Mont. at 36, 38, 108 P.2d at
610-11; Restatement (Second) of Agency § 235 cmt. a.
¶19 In Keller, we considered, inter alia, whether the trial evidence was sufficient to
support a jury finding that the store manager of a grocery store corporation (Safeway) was
acting within the scope of his employment when he personally traveled from the Butte
Safeway store to the home of the plaintiff’s mother and made a slanderous allegation that
the plaintiff deceitfully paid for groceries with a forged or otherwise bad check. Keller,
111 Mont. at 39-41, 108 P.2d at 611-12. Based on evidence that Safeway discouraged its
managers from accepting personal checks from customers (by holding managers personally
liable for customer checks that did not clear) and that a Safeway supervisor had specifically
told that particular manager not to accept personal checks from customers (like the
plaintiff) he did not know, the employer asserted in defense of the ensuing slander claim
that the store manager acted on his own, outside the scope of his employment. Keller, 111
Mont. at 39-40, 108 P.2d at 612. Even assuming, arguendo, that Safeway had not expressly
or implicitly authorized the manager to accept a personal check from the plaintiff, we noted
that a fact question still remained as to whether the manager made the slanderous statement
incidental to the performance of an authorized act and at least partially in furtherance of
13
the employer’s interest. Keller, 111 Mont. at 40, 108 P.2d at 612. Acknowledging that
Safeway had not expressly or implicitly authorized its managers to make slanderous
statements about customers, we held that the jury could nonetheless have reasonably found
that the manager’s personal trip to the mother’s home, and ensuing slanderous statement,
were “so closely intermingled with” his authorized employment duties that the “slander
was a wrong committed, if not in furtherance of his employment, at least as an incident
thereto.” Keller, 111 Mont. at 40, 108 P.2d at 612. We thus held that the evidence was
sufficient to support the jury’s finding that the manager made the slanderous statement to
the plaintiff’s mother within the scope of his employment. Keller, 111 Mont. at 40, 108
P.2d at 612.5
¶20 Similarly, in Kornec, after a jury found a mining company vicariously liable for an
employee’s intentional assault and battery of the plaintiff, we considered whether the trial
evidence was sufficient to support the jury finding that the employee was acting within the
scope of his employment, as a miner and general laborer, when he physically assaulted the
third-party plaintiff. Kornec, 120 Mont. at 10, 180 P.2d at 257. Though accounts of the
events varied, the employee was in the process of effecting repairs to a diversionary dam
on company property adjacent to the plaintiff’s property when the plaintiff appeared and
challenged him about water backing up from the dam onto the plaintiff’s property. Kornec,
120 Mont. at 6-7, 180 P.2d at 255-56. According to the plaintiff’s version of events, the
5
We ultimately reversed the jury verdict for retrial based on an excessive damages award not
supported by the evidence. Keller, 111 Mont. at 41-44, 108 P.2d at 612-14.
14
mining company employee, in response to the plaintiff’s “remonstrat[ion] . . . and
complain[t]” about the dam, walked onto the plaintiff’s property and then threatened and
repeatedly beat him with a shovel. Kornec, 120 Mont. at 7, 180 P.2d at 255. The employee
contrarily asserted that the plaintiff attacked him and that he acted only in self-defense.
Kornec, 120 Mont. at 7, 180 P.2d at 255. In its defense, the company asserted that the
employee was acting outside the scope of his employment because his assault of the
plaintiff “was a personal and independent act . . . not binding” on the employer. Kornec,
120 Mont. at 4, 180 P.2d at 254.
¶21 Despite conflicting evidence, we held that there was sufficient evidence upon which
the jury could have reasonably concluded that the employee was “carrying out the duties
for which he was employed at the time and place assigned” when the verbal and resulting
physical altercation occurred between the employee and the plaintiff. Kornec, 120 Mont.
at 10-11, 180 P.2d at 257. Noting further that there was no evidence that the employee
“held any personal grudge or ill will against the plaintiff,” we affirmed the jury verdict,
holding:
The question as to whether [the employee] was acting within the scope of his
employment was a question for the jury under proper instruction. Under the
facts disclosed there was evidence presented from which a jury could find
that the act complained of was within the scope of the actor’s employment
and done while engaged in his masters’ business and “in furtherance of that
business and the masters’ interest.”
Kornec, 120 Mont. at 11, 180 P.2d at 257.
¶22 Similarly here, Glancy was employed by the City as an airport supervisor. His
authorized duties included, inter alia, supervising Brenden and other airport rescue and
15
maintenance personnel. Inter alia, the City authorized him to assign work to Brenden and
to direct and supervise his performance of that work. As Brenden’s immediate supervisor,
Glancy was authorized to, and did in fact, document perceived performance deficiencies
or misconduct, take and document any corrective or disciplinary action deemed necessary,
and conduct regular periodic evaluations of Brenden’s performance and conduct. The City
correctly points out that there is substantial evidence that Brenden was aware of an
unwritten city rule prohibiting supervisors from giving prospective employers any
information regarding current or former employees. However, there is also evidence upon
which the finder of fact could reasonably infer that, in the absence of a written policy,
Glancy’s response to MRL’s initial reference check regarding Brenden (verifying his city
employment, dates of employment, and stating that he was a “safe” employee) was at least
implicitly authorized by the City as of a type that an immediate supervisor might typically
provide in response to reference checks from prospective third-party employers.6
¶23 The Rule 56 record is similarly ambiguous regarding Glancy’s conduct on
November 5 and 9, 2016. On one hand, Glancy submitted his anonymous November 5
“hotline” complaint to MRL on a Saturday, a day off from his regularly scheduled work.
6
See Dep. Michael Glancy 21:21-22:12, 23:16-19, 25:1-4, and 101:6-102:15; Dep. Scott Trent
52:22-53:1 and 53:16-24; Dep. Karla Stanton 54:7-22 (noting lack of written City policy barring
supervisors from responding to third-party reference checks). Based on the Rule 56 record, the
City asserted on page 3 of the statement of facts section of its Brief in Support of Motion for
Summary Judgment (Doc. 22) that it “does not allow supervisors . . . to provide any information”
regarding current or former city employees to prospective employers “other than the verification
of dates of employment and job titles.” (Emphasis added.) On appeal, the City did not contest the
District Court’s conclusion that no genuine issues of material fact existed on the Rule 56 factual
record that Glancy’s initial act of giving “MRL a positive reference check” regarding Brenden
“was within the scope of his employment.”
16
He asserts that he submitted it at home from his personal computer. On the other hand, it
is beyond genuine material dispute that, upon investigation, the City verified that Glancy
used his city-owned office computer to access the MRL website for over ten minutes from
his city office on the same day he submitted his MRL “hotline” complaint through that
same website. It is further beyond genuine material dispute that, though not working on a
regularly scheduled shift, Glancy was on a paid, on-call work status at the time.
¶24 As to Glancy’s conduct on November 9, 2016, there is evidence upon which to
reasonably conclude that, on November 9, 2016, MRL specifically contacted him, in his
capacity as Brenden’s prior supervisor, to follow-up on his earlier “positive reference”
regarding Brenden and verify or refute the truth of the subsequent anonymous allegations
against him. As before, MRL again contacted and spoke with Glancy at his city office
telephone number during a workday while Glancy was in the office on the job. As his
former supervisor, Glancy told MRL that Brenden had indeed stolen City property and that
he was further involved in a violent incident in the workplace, created a hostile working
environment, and was “an HR nightmare.” During that conversation, Glancy told MRL
that he had “tons of documentation that you’re welcome to” and which “I’ll send . . . to
you.” Glancy subsequently sent two emails to MRL with copies of various employment
records attached, including a corrective action directive issued to Brenden, a negative
annual performance evaluation, and the “Brenden Log,” which Glancy created and kept
while on the job as Brenden’s supervisor. Glancy sent the email transmittals from his
airport office using his city-owned computer and city email account during the work day
17
while on the job. Each email included a signature line identifying Glancy as the City
“Airport Operations Supervisor.” The verbal and documentary information Glancy
provided to MRL on November 9, 2016, was work-related employee performance and
conduct information gathered, noted, and documented by Glancy in the course of his
performance and function as Brenden’s immediate City supervisor.
¶25 As noted by the District Court, it is beyond genuine dispute that the City did not
expressly or implicitly authorize Glancy to anonymously provide personnel information,
much less false information, to a third-party employer regarding a former city employee.
Nor did the City authorize him to again make false and derogatory allegations, or disclose
related performance and conduct records, regarding Brenden on November 9, 2016, in
response to MRL’s follow-up inquiry. However, despite conflicting evidence, there is also
evidence, as in Keller and Kornec, upon which the finder of fact could reasonably conclude
that, as was the case with his earlier response to MRL’s initial inquiry, the City at least
implicitly authorized Glancy to field and respond to MRL’s follow-up inquiry to some
extent. At that time, the City had no written policy prohibiting supervisors from responding
to employee reference checks from prospective employers. In subsequent testimony,
Glancy indicated that he thought it was okay to provide additional information after
Brenden had resigned. Despite conflicting evidence, there is sufficient evidence upon
which to reasonably infer that Glancy’s statements to MRL on November 9, 2016, were of
a type of the same general nature that a former supervisor might typically make in response
to a follow-up inquiry from a prospective employer to whom the supervisor had previously
18
given inconsistent or incomplete information. It is beyond genuine material dispute that
the City furnished the instrumentalities (i.e., computer, office, phone, email account,
internet access, and personnel records) by which Glancy caused the alleged harm to
Brenden. Thus, despite conflicting evidence, there is sufficient evidence from which the
finder of fact could reasonably infer that MRL contacted and spoke with Glancy on
November 9, 2016, in his official capacity as Brenden’s former supervisor, that Glancy
spoke with MRL in that capacity, and that he subsequently emailed formal and informal
City performance or personnel records regarding Brenden to MRL, either in his official
capacity or at least in direct relation and follow-up to his earlier response, within the scope
of his employment, to MRL’s initial reference check.
¶26 The evidence regarding Glancy’s motivation is similarly ambiguous. It is beyond
genuine material dispute that Glancy had some degree of personal animus toward Brenden,
and a resulting personal motive to wish or cause him harm, and that the City could not have
benefitted from Glancy’s disclosures to MRL after Brenden resigned. Thus, there is
evidence upon which the factfinder could reasonably conclude that Glancy’s conduct on
November 5 and 9 was an independent, personally motivated, course of conduct not
intended to serve any City purpose or interest. However, based on Glancy’s subsequent
disavowal of any animosity toward Brenden, and the circumstances under which he acted
on November 9, there is evidence upon which the finder of fact could reasonably infer that
Glancy had no, or only an incidental, motive to harm Brenden and that his statements, and
related email transmittals, to MRL on that date were at least partially motivated by an intent
19
or purpose to correct the prior inaccurate “positive reference” he gave to MRL on behalf
of the City. Whether the City actually benefitted from Glancy’s conduct is not
determinative of Glancy’s subjective motivation on November 9, 2016.
¶27 Even if not authorized by the employer, and itself not motivated by any intent or
purpose to serve the employer, an employee’s tortious conduct may still be incidental to
expressly or implicitly authorized conduct if “closely intermingled [there]with” and at least
partially intended as a means to accomplish an expressly or implicitly authorized task or
purpose. Keller, 111 Mont. at 40, 108 P.2d at 612. Here, as in Keller and Kornec, a genuine
issue of material fact exists on the Rule 56 record as to whether Glancy’s verbal statements,
and related email transmittals, to MRL on November 9 were closely related and arose from
implicitly authorized conduct, and were thus incidental thereto.
¶28 In the case of an unauthorized employee communication, an additional
consideration may be a relevant, inter alia, in determining whether the employee’s conduct
was incidental to expressly or implicitly authorized conduct for purposes of respondeat
superior. Unauthorized statements by an employee to a third-party may be incidental to
expressly or implicitly authorized conduct if the employee had apparent authority to make
such statements and harm resulted from the third-party’s reasonable reliance thereon. See
Restatement (Second) of Agency §§ 248, 265. See also Keller, 111 Mont. at 38-39, 108
P.2d at 611 (noting effect of apparent authority in the context of respondeat superior);
20
Restatement (Second) of Agency § 219(2)(d) cmt. e.7 If an employee causes harm “to [the]
business relations [of a third party] . . . by defamation or other methods of untruthful
publicity [to another], [an employee] with apparent authority to make [such] statements
binds his employer, irrespective of . . . motive.” Restatement (Second) of Agency § 248
cmt. b.
¶29 Here, the District Court did not address Brenden’s assertions that Glancy acted
within the scope of his apparent authority as a city supervisor and that MRL reasonably
relied on his derogatory statements, and related email transmittals, to Brenden’s detriment.
The City asserts that the court properly disregarded Brenden’s apparent authority theory
because he did not separately plead it as a distinct claim. While generally a theory of
vicarious liability distinct from respondeat superior, see § 28-10-606, MCA, and
Restatement (Third) of Agency §§ 2.03 cmt. a-b, 7.03(2)(b), and 7.08 (vicarious liability
for the tortious conduct of an agent acting outside the scope of actual authority but within
the scope of the agent’s apparent or ostensible authority), apparent authority may also be
relevant in considering whether an employee made tortious statements to another within
7
Ostensible or apparent authority is the authority a principal intentionally or negligently causes or
allows a third party to reasonably believe an agent has. Section 28-10-403, MCA.
Accord Restatement (Third) of Agency § 2.03. “If the principal places a person in a position or
office with specific functions or responsibilities, from which third parties will infer that the
principal assents to acts by the person requisite to fulfilling the specific functions or
responsibilities, the principal has manifested such assent to third parties.” Restatement (Third) of
Agency § 1.03 cmt. b. “A third party who interacts with the person, believing the manifestation
to be true, need not establish a communication made directly to the third party by the principal to
establish the presence of apparent authority.” Restatement (Third) of Agency § 1.03 cmt. b. The
scope of an agent’s apparent authority depends on the totality of the circumstances “surrounding
the transaction” at issue. See Butler Mfg. Co. v. J & L Implement Co., 167 Mont. 519, 527, 540
P.2d 962, 967 (1975) (quoting 2A C.J.S. Agency § 159 p. 795 (1973)).
21
the scope of employment for purposes of respondeat superior. See Keller, 111 Mont. at
38-39, 108 P.2d at 611; Restatement (Second) of Agency §§ 247-48. Because respondeat
superior “is not a free-standing or independent tort cause of action” but, rather, a common
law agency theory of vicarious liability for the tortious conduct of another, Saucier, ¶ 64,
Brenden did not have to separately plead his apparent authority theory of respondeat
superior as a distinct liability claim. The City does not dispute that he properly pled a
number of distinct tort claims under which he asserts the City is vicariously liable. Thus,
Brenden’s assertion of apparent authority, as a consideration relevant to whether Glancy’s
tortious conduct was incidental to implicitly authorized conduct for purposes of respondeat
superior, was not precluded by his failure to separately plead it as a theory of liability
distinct from his properly pled claims.
¶30 The City’s assertion of unfair surprise is further undermined by the fact that,
however inartfully, Brenden raised apparent authority as a respondeat superior
consideration in opposition to the City’s motion for summary judgment. The City has not
demonstrated that Brenden’s apparent authority theory is not factually supported by
well-pled facts in his complaint, or on the Rule 56 record, viewed in the light most
favorable to him. On the record in this case, apparent authority may thus be a relevant
consideration, inter alia, in determining whether Glancy’s November 9 verbal statements,
and related email transmissions, to MRL were incidental to implicitly authorized conduct.
22
CONCLUSION
¶31 Genuine issues of material fact preclude summary judgment as to whether Glancy’s
verbal statements, and related email transmittals, to MRL on November, 9, 2016, were
incidental to implicitly authorized conduct, and thus within the scope of his employment.
We hold that the District Court erroneously granted summary judgment to the City on
Brenden’s claims. We reverse and remand for further proceedings in accordance with this
Opinion.
/S/ DIRK M. SANDEFUR
We concur:
/S/ JAMES JEREMIAH SHEA
/S/ JIM RICE
/S/ INGRID GUSTAFSON
Justice Beth Baker, dissenting.
¶32 Whether an employee acted within the scope of his or her duties to the employer
generally is a question of fact. Kornec, 120 Mont. at 5, 180 P.2d at 254. It is a question of
law for the court, however, “when only one legal inference may reasonably be drawn from
the facts.” Bowyer v. Loftus, 2008 MT 332, ¶ 8, 346 Mont. 182, 194 P.3d 92; Denke v.
Shoemaker, 2008 MT 418, ¶ 74, 347 Mont. 322, 198 P.3d 284. “Where the record taken
as a whole could not lead a rational trier of fact to find for the non-moving party, there is
no ‘genuine issue for trial.’” Kerr v. St. Vincent Healthcare, 2016 U.S. Dist. LEXIS 38918
23
at *2 (D. Mont. Feb. 29, 2016) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986)). Applying our established
precedent to the summary judgment record, I agree with the District Court that no rational
juror could find that Mike Glancy was acting within the course and scope of his
employment when he gave MRL false and confidential personnel information after
Brenden had left his City employment. I would affirm the District Court’s grant of
summary judgment to the City.
¶33 As the Court observes, we have considered numerous cases seeking to hold an
employer liable for an employee’s actions as taken within the course and scope of
employment; in some of those cases, depending on the circumstances involved, we have
upheld an award of summary judgment to the employer. A few consistent rules emerge
from our precedent. To impose liability upon an employer under the doctrine of respondeat
superior,
[t]he servant or agent must have been acting in the “course of his
employment,” in “furtherance of his employer’s interest,” or “for the benefit
of his master,” “in the scope of his employment,” etc. But a servant who acts
entirely for his own benefit is generally held to be outside the scope of his
employment and the master is relieved of liability.
Kornec, 120 Mont. at 8, 180 P.2d at 256 (citing Harrington v. H. D. Lee Mercantile Co.,
97 Mont. 40, 59, 180 P.2d 553, 558 (1934)). To be within the scope of the employment,
even if not expressly authorized, conduct must be of the same general nature as that
authorized, or incidental to the conduct authorized. Keller v. Safeway Stores,
111 Mont. at 36, 108 P.2d at 610.
24
In determining whether or not the conduct, although not authorized, is
nevertheless so similar to or incidental to the conduct authorized as to be
within the scope of employment, the following matters of fact are to be
considered: (a) Whether or not the act is one commonly done by such
servants; (b) the time, place and purpose of the act; (f) [sic] whether or not
the master has reason to expect that such an act will be done; and (i) [sic] the
extent of departure from the normal method of accomplishing an authorized
result.
Keller v. Safeway Stores, 111 Mont. at 36-37, 108 P.2d at 610 (quoting Restatement of the
Law of Agency § 229) (Am. Law. Inst. 1933).
¶34 Keller and Kornec make clear, as still recognized in the Restatement, that the
employee’s “failure of duty” or disobeying an instruction of the employer is not the key
inquiry—as respondeat superior exists to hold an employer liable for the employee’s
wrongful acts. Keller, 111 Mont. at 35-36, 108 P.2d at 610; Kornec, 120 Mont. at 9,
180 P.2d at 256 (citing Restatement of Agency § 230) (“An act, although forbidden or done
in a forbidden manner, may be within the scope of employment.”). See also Denke, ¶ 79
(because the doctrine of respondeat superior is designed to hold an employer liable for its
employee’s wrongful conduct, it contemplates that conduct such as unlawful retaliation
was committed within the scope of employment).
¶35 But an agent’s or employee’s act is not within the scope of employment if it is a
“frolic of the agent’s own” or an “act animated purely by personal motives.”
Keller, 111 Mont. at 38, 108 P.2d at 611. Thus, what is key is whether the employee was
“endeavoring to promote the principal’s business.” Keller, 111 Mont. at 37-38,
108 P.2d at 611. Accord Roberts v. Pegasus Gold Corp., 273 Mont. 266, 270,
903 P.2d 782, 784 (1995) (“In the law of respondeat superior, the harmful force is always
25
an act of the servant . . . . The inquiry is whether the performance of that act was in
furtherance of the master’s business.”) (quoting 1 Larson, Workmen’s Compensation Law
§ 14.00 4-1 to 4-2, and contrasting with the law of workers’ compensation). The Keller
jury thus could find the Safeway manager’s alleged slanderous comment to be within the
scope of employment because, “taken at its face value, [the comment could] reasonably be
said to have been an intended means by which [the employee] expected to obtain payment
on the no good check.” Keller, 111 Mont. at 40, 108 P.2d at 612.
¶36 We noted in Bowyer, on the other hand, that “summary judgment for the employer
is proper if the employee’s activity is not related to the employer’s business.” ¶ 16. Despite
the fact that the employee’s job duties included transporting his crew to the job site and
back to the motel in his personal vehicle, we agreed with the district court that the
employee, after dropping off the crew at the motel, was on a “non-work-related jaunt” for
dinner and bar-hopping when the collision occurred. Bowyer, ¶ 16. The employer’s
“culture of safety” policy did not support the plaintiffs’ argument that the employee’s acts
in causing the collision were within the scope of his employment; the policy addressed
off-duty activities of employees only insofar as those activities affected on-duty work
performance. Bowyer, ¶ 15. Nothing in the summary judgment record indicated that the
employee’s travel the evening of the collision “was at [the employer’s] request or even
with its knowledge.” Bowyer, ¶ 16.
¶37 We upheld summary judgment for the employer in Roberts because its employee’s
conduct of either throwing an explosive device out of his truck or intentionally causing the
26
truck to backfire was not authorized by the employer or incidental to the employee’s
authorized conduct (of driving a company vehicle from the job site), and did not benefit
the employer in any way. Roberts, 273 Mont. at 270-71, 903 P.2d at 784.
¶38 In contrast, we agreed that the employer in Rocky Mountain Enters. v.
Pierce Flooring, 286 Mont. 282, 306, 951 P.2d 1326, 1341 (1997), was not entitled to
summary judgment. We relied in part on evidence that the employee who vandalized the
vehicles of the plaintiff—business competitors of his employer—knew his actions could
harm the competitors’ business activities, raising a genuine issue of fact for the jury
whether he acted in his employer’s interests and thus within the scope of employment.
¶39 Applying Montana law, the United States District Court for the District of Montana
awarded summary judgment to the employer in Kerr, 2016 U.S. Dist. LEXIS at *11
(adopted by and summary judgment granted, 2016 U.S. Dist. LEXIS 37955
(D. Mont. Mar. 23, 2016)). The federal court concluded that the employer hospital was
not liable under respondeat superior for the alleged defamatory comment a nurse made to
plaintiff’s sister that the plaintiff was “out of his mind” and needed to be committed to a
mental hospital. The court relied on the lack of any evidence that the nurse’s statement
was made for the hospital’s benefit “or in furtherance of its interest.” Rejecting the notion
that the statement was incidental to the nurse’s authorized conduct, the court found that the
plaintiff
failed to demonstrate the statement is one which is commonly made by
St. Vincent Healthcare employees, that it does not constitute a departure from
the normal, authorized tasks of a nurse, or that St. Vincent Healthcare would
have had reason to expect the nurse would make the statement.
27
2016 U.S. Dist. LEXIS at *8.
¶40 A key part of our opinion in Kornec, in which we affirmed the jury’s finding of an
employer’s liability, was the longstanding controversy between the plaintiff and the
tortfeasor’s employer. 120 Mont. at 10, 180 P.2d at 257. Given that well-known
controversy, officials of the defendant company “might reasonably have apprehended that
[the employee] might become involved in an altercation with the plaintiff when they
dispatched [the employee to the site where the assault then occurred.]”
Kornec, 120 Mont. at 10, 180 P.2d at 257. “The test of the defendant company’s liability
is not whether the assault was committed in accordance with the master’s instructions but
whether the act complained of arose out of and was committed in prosecution of the task
the servant was performing for his master.” Kornec, 120 Mont. at 9-10, 180 P.2d at 257.
¶41 The summary judgment record in this case reveals no evidentiary basis on which a
rational jury could find that Glancy’s anonymous tip to the MRL EthicsPoint hotline or his
unabridged disgorging of confidential personnel information to Susan Twiford when she
predictably followed up with him by phone was in any respect in furtherance of the City’s
interest or committed in prosecution of any task or authority the City conferred on him.
First, Glancy obviously knew the City policy when he answered Twiford’s first phone call
by giving brief, responsive answers to her factual questions and advising her to “talk to
HR.” His authorized conduct—advising Twiford in response to specific questions that
Brenden was punctual, had a good attendance record, and was a safe worker—was enough
“to allow Mr. Brenden to proceed with his application with MRL.” Second, he waited until
28
Brenden had resigned his City employment and was out of Glancy’s hands to report his
hotline tip—a tip that then grew into disclosure of prohibited information and outright
falsehood about Brenden’s employment history. With the assumption that Brenden was
no longer in the City’s employ and there being no evidence that he would be working on
City-affiliated business in his new position, there is no indication that Glancy’s disclosures
could serve the City’s purposes whatsoever. What’s more, his unauthorized hotline report,
information disclosures, and statements to Twiford were not, by any rational inference,
incidental to authorized conduct because they admittedly: were not disclosures commonly
made by City employees; departed from the normal, authorized tasks of a City supervisory
employee; and were beyond any statements that the City would have had reason to expect
him to make if contacted for a reference check. Brenden submitted no evidence to suggest
otherwise.
¶42 The application of our precedent to award judgment to the City as a matter of law is
consistent with principles of the Restatement of Agency, which our case law reflects. The
Court acknowledges that the Restatement generally aligns with our precedent.
Opinion, ¶ 13 n.2. Stated generally, as the Restatement (Third) of Agency § 7.07 does,
“An employee’s act is not within the scope of employment when it occurs within an
independent course of conduct not intended by the employee to serve any purpose of the
employer.” Restatement (Third) of Agency § 7.07(2). Under this principle,
[A]n employee’s tortious conduct is outside the scope of employment when
the employee is engaged in an independent course of conduct not intended to
further any purpose of the employer. An independent course of conduct
represents a departure from, not an escalation of, conduct involved in
29
performing assigned work or other conduct that an employer permits or
controls. When an employee commits a tort with the sole intention of
furthering the employee’s own purposes, and not any purpose of the
employer, it is neither fair nor true-to-life to characterize the employee’s
action as that of a representative of the employer. The employee’s intention
severs the basis for treating the employee’s act as that of the employer in the
employee’s interaction with the third party.
Restatement (Third) of Agency § 7.07(2) cmt. b. Applied to the undisputed record here, in
which Glancy admitted under oath that he provided information to MRL not to “help[] out
the City . . . as part of [his] job-related functions,” but “to let them know what kind of
employee they were hiring[,]” there is no genuine issue of material fact. Glancy’s conduct
was not intended to and did not further any purpose of his employer but was an independent
course of conduct outside the scope of his City employment.
¶43 Finally, the City is correct that Brenden cannot rely on the doctrine of apparent
authority to pursue his claims under these circumstances. “Apparent authority is the power
held by an agent or other actor to affect a principal’s legal relations with third parties when
a third party reasonably believes the actor has authority to act on behalf of the principal
and that belief is traceable to the principal’s manifestations.” Restatement (Third) of
Agency § 2.03. Quoting the earlier version of this principle from Restatement of the Law
of Agency § 27, we held, “Apparent authority to do an act may be created by written or
spoken words or any other conduct of the principal which, reasonably interpreted, causes
a third person to believe that the principal consents to have the act done on his behalf by
the person purporting to act for him.” Kraus v. Treasure Belt Mining Co., 146 Mont. 432,
435, 408 P.2d 151, 152 (1965) (emphasis in original). There are two inquiries in analyzing
30
apparent authority: “the exact extent to which the principal held the agent out or permitted
him to hold himself out as authorized, and what a prudent person, acting in good faith,
under the circumstances would reasonably believe the authority to be.” Bogle v. Ownerrent
Rent to Own, 264 Mont. 515, 519, 872 P.2d 800, 803 (1994) (quoting Butler Mfg. Co. v.
J & L Imp. Co., 167 Mont. 519, 527, 540 P.2d 962, 967 (1975)). “[B]oth parts of the test
must be met for ostensible authority to exist.” Estate of Pruyn v. Axmen Propane, Inc.,
2009 MT 448, ¶ 54, 354 Mont. 208, 223 P.3d 845 (emphasis omitted)
(citing Youderian Constr. v. Hall, 285 Mont. 1, 10, 945 P.2d 909, 914 (1997)).
¶44 Brenden did not offer any evidence to suggest that a prudent person in good faith
reasonably would have believed that Glancy had authority to disclose confidential
personnel records and information about Brenden after he had resigned his City
employment. The evidence in fact demonstrated that Scott Trent of MRL thought it
surprising that Glancy would reveal so much information, as “typically, organizations are
somewhat restrictive in what they are willing to share.” Indeed, Glancy already had
advised MRL that he could not share additional information when Twiford contacted him
for the reference check. This gets to the heart of Brenden’s apparent-authority problem.
The doctrine exists to hold a principal accountable for a “manifestation that clothes the
agent with the appearance of authority to act on the principal’s behalf and that induces the
third party reasonably to believe that the agent acts with actual authority.” Restatement
(Third) of Agency, § 7.08 cmt. b. The third party that would be in a position to make such
31
a claim is MRL, not Brenden. It is not a party and has made no such claim. Brenden
cannot assert Glancy’s apparent authority to take the City to trial in this case.
¶45 Only one legal inference reasonably may be drawn from the undisputed material
facts on this record. The District Court’s award of summary judgment to the City should
be affirmed.
/S/ BETH BAKER
Chief Justice Mike McGrath and Justice Laurie McKinnon join in the Dissent of
Justice Baker.
/S/ MIKE McGRATH
/S/ LAURIE McKINNON
32