Shea Law Firm Defends Stalking Charge Getting it Dismissed.

Gallatin County Sheriff’s Office Deputy filed a stalking charge against a fellow deputy, who was represented by the Shea Law Firm. The deputy charged with stalking was terminated from Gallatin County Sheriff’s Office but then successfully sued and obtained reinstatement of his position and settled with Gallatin County.

The Shea Law Firm defended the stalking charge and the Court dismissed the charge finding the charges “stupid.”

Case Unripe for Summary Judgment

Source: Montana Law Week

INSURANCE: Uncertainty and unresolved facts & claims in sewer line easements suit make this declaratory action as to defend/indemnify duties unripe for summary
judgment… Gilbert.

Gardiner-Park Co. Water & Sewer Dist. claims that Donald & Gina Knight constructed 2 homes on their property that improperly overlay and endanger its sewer line. It claims that they constructed a house for their son Landon in 2014 over its sewer lines despite its objections. It claims that this house could crush the old clay tile line, causing disruption or leakage into the Yellowstone River. It claims that they constructed a 2nd
house over the line subsequent to and in violation of a 2015 easement signed by Donald Knight. Knights contest validity of his signature, claiming that he signed following surgery and while under the influence of medication. The District alleges that prior to construction it agreed to pay for and construct a new manhole to reroute the line and accommodate the 2nd house.

This rerouting allegedly involved obtaining another easement from Knights’ neighbors, Obers. Both easements prohibited construction within 5 feet of the line without the District’s permission. However, the District’s underlying suit claims that Knights constructed the 2nd house over the line in violation of both easements. A survey prepared for the District concluded that parts of both homes were within the easements. The District also alleges that Knights caused a retaining wall to collapse, threatening support for part of the line above the river. Its underlying suit accordingly brought claims of intentional trespass, intangible trespass, public & private nuisance, negligence/strict liability, and breach of contract against Knights. Its underlying
suit seeks a declaration that Knights violated the easements, an award of damages, costs, and attorney fees, and an order directing removal of structures threatening the line and violating the easements (both homes and a shed) at Knights’ expense.

Knights counterclaimed against the District alleging that it was aware of placement of the homes and improperly waited to raise concerns until 4/16. They dispute validity of the 2015 easements, claiming that Donald Knight was taking strong pain killers at
the time of signing. They claim that the District improperly forced them to remove parts of the 2nd home’s roof & porch, causing damage to their property. They request damages, attorney  fees & costs, denials of the District’s claims, and injunctive orders prohibiting removal of any structures and directing that the homes “remain in place.”

MACo Joint Powers Insurance Authority filed a declaratory action asking the Court to declare that it has no duty to defend or indemnify the District based on “clear exclusions” in the policy. MACo and the District request summary judgment. The Court heard argument 2/11/19. A notice and affidavit of Todd Shea filed 2/8/19 indicate that the District has filed a contribution & indemnification claim against Standish Excavation as a 3rdparty Defendant in the underlying suit. Further, there are expected amendments to the pleadings by some or all of the parties as a result of this and further discovery is anticipated.

The District raises the issue of ripeness, relying on cases holding that “where there remain unresolved relevant issues in the underlying case, inseparable from the issues presented in the declaratory judgment action, the duty to indemnify is not ripe for resolution.” American Reliable (D.Mont. 2018); Skinner (Mont. 2005). The concern is that ruling on the duty to indemnify before allowing the facts to be determined in an underlying action fails to be a final adjudication on the indemnification issue. Such
a ruling may be subject to amendment or nullification when the underlying case is finally resolved. Northfield v. MACo (Mont. 2000).

MACo responds that its summary judgment motion seeks a ruling that it is not obligated to defend or indemnify the District. It points out that there is a long line of Montana cases that have decided whether coverage exists by analyzing whether the allegations of the underlying complaint trigger the duty to defend. Further, since the duty to defend is broader than the duty to indemnify, if there is no duty to defend, the underlying claim
falls outside the scope of coverage. Twite (Mont. 2008). “Put another way, while an insurer’s duty to defend is triggered by allegations, an insurer’s duty to indemnify hinges not on the facts the claimant alleges and hopes to prove but instead on the facts, proven, stipulated or otherwise established that actually create the insured’s liability.” Freyer (2003). MACo further relies on Grindheim (D.Mont. 1995) (“An insurer’s duty to defend
its insured arises when the insurer, through reference to pleadings, discovery, or final issues declared ready for trial, has received notice of facts representing a risk covered by the terms of the policy.”). Thus, MACo argues, if a claim falls unequivocally outside the policy’s coverage, there is no basis for imposing a duty to defend. MACo contends that the District is attempting to eliminate the duty to defend analysis by merging it into the
narrower duty to indemnify analysis. It points to case law holding that an insurer “had no duty to defend [the insured] because the complaint cannot be construed to give rise to a claim under the terms of the policy.” Weitzel (Mont. 2016). It rejects the District’s argument that unresolved factual issues preclude a determination of coverage, since the Supreme Court has recognized that “factual disputes between the parties relevant to
coverage must be resolved in favor of coverage.” Id. It argues that Northfield and American Reliable are not on point because they addressed only the issue of indemnification and did not analyze the duty to defend.

The District counters that MACo misconstrues its ripeness argument. It relies on authority that where there are unresolved relevant issues in the underlying case that are inseparable from the issues in the declaratory action, the duty to indemnify is not ripe. It argues that there are unresolved issues here that are inseparable from MACo’s summary judgment motion seeking a ruling that it is not obligated to defend or indemnity the District for Knights’ claims. It takes issue with MACo’s effort to distinguish Northfield as only addressing indemnification since the opinion notes at the outset that MACo had already assumed the defense, so the duty to defend was not at issue. It reiterates
that it relies on Northfield for the holding denying Northfield’s request for a declaratory ruling on its potential indemnification obligations because there were unresolved factual issues in the underlying case. Northfield also relied on the DJA, which authorizes a court to refuse to enter a declaratory ruling if doing so “would not terminate the uncertainty or controversy giving rise to the proceeding.” §27-8-206. In Northfield, MACo successfully
defended against Northfield’s motion by contending that the plaintiffs in the underlying case could subsequently amend their complaint and therefore Northfield’s motion seeking declaratory relief on its indemnification obligation was premature. The District maintains that American Reliable ultimately determined that it could not rule on whether there was an occurrence under the policy because of ongoing factual issues in the underlying case. Given this decision, it determined that American Reliable’s duty to defend was ongoing.

There are not only unresolved factual issues in the underlying litigation here, but also claims that have not been filed. This case is not to the stage where there is sufficient finality of pleadings, discovery, or final issues declared ready for trial, such that the Court can determine MACo’s duty to indemnify or defend. If the Court ruled on the summary judgment motions at this juncture, such rulings may be subject to nullification or amendment after further amendment of the pleadings, further discovery, or further proceedings. The Court is cognizant of MACo’s desire to have a ruling based on the state of the pleadings at the time it filed its summary judgment motion. However, doing so “would not terminate the uncertainty or controversy giving rise to the proceeding.” There is sufficient basis to deny MACo’s motion in keeping with the DJA §27-8-206.

The parties are preparing amended pleadings, most significantly Knights’ assertion of a 3rd-party claim which, if filed, would be crucial to MACo’s assessment of its position and the Court’s determination of the matters presented by the summary judgment motions now before the Court. The District has just recently asserted a 3rd-party contribution & indemnification claim, bringing a new party into the underlying case. Discovery has already been extended into 5/19,  and the addition of a new party may give rise to further requests for amendment of the Scheduling Order. The procedural status
puts this case beyond the level of uncertainty and unresolved facts in Northfield or American Reliable.

MACo’s motion for summary judgment and the District’s cross-motion for summary judgment must be denied.

Appeal of Investment Accounts Interpleader Dismissed

Source: Montana Law Week

APPEAL BOND: Appeal of investment accounts interpleader dismissed at request of Appellant for inability to post bond… order.

Dennis Bohnert has an investment account, a traditional IRA, and a Roth IRA with Edward Jones. His stepdaughter Lisa Copiskey filed a motion in Tribal Court in 9/15 contending that they belong to her. Tribal Court granted the motion and prohibited Bohnert from dissipating any funds. Copiskey requested that Jones not release any funds to Bohnert. He requested access to the accounts for living expenses and defense costs. Both appealed to Tribal Appeals Court in 5/16 contesting the orders. Jones placed a hold on the accounts and advised that it would release funds to Bohnert if the parties agreed on an amount. Because they continued making competing demands to the funds, Jones filed an interpleader in 9th Judicial Dist. Court. Bohnert opposed the interpleader and counterclaimed against Jones. Judge Best dismissed the counterclaim and awarded Jones $24,959 attorney fees & costs, 2/3 apportioned to Bohnert. (MLW 1/28/17). Bohnert appealed and moved for a stay and waiver of appeal bond, which Jones opposed. The motion was denied 4/18/17. Bohnert filed 2 motions in the Supreme Court seeking the same relief and both were also denied. He now moves to dismiss his appeal due to the fact that he has made “numerous attempts to obtain the funds to prosecute his appeal, i.e. the purchase of a Supersedeas Bond from a commercial surety,” by moving for a stay and waiver of bond in District Court and the Supreme Court in view of Jones withholding monies totaling $286,005.80 and he is unable to sell his home and cannot borrow against it due to Jones’ judgment lien.

For good cause shown, Bohnert’s appeal is dismissed.

Yellowstone National Park to replace sewer line related to arsenic lawsuit

Source: Michael Wright, Bozeman Chronicle Staff Writer

Yellowstone National Park will replace a stretch of sewer line sometime over the next two years in an attempt to solve arsenic problems that led to a lawsuit against the park last year.

A U.S. Department of Interior attorney sent a letter to an attorney for the Gardiner-Park County Water and Sewer District that says Yellowstone plans to remove 2,700 feet of clay sewer line near Mammoth Hot Springs and replace it with PVC pipe.

The district sued the National Park Service in December 2016 because of heightened arsenic levels in its sludge ponds that it attributes to Yellowstone National Park.

The Interior attorney, Colleen Burnidge, wrote that the pipe project may take two years to complete, but they think it will help solve the problem.

“We believe that this project will address arsenic inflow and infiltration into the District’s sewage line,” she wrote.

Yellowstone National Park spokeswoman Morgan Warthin said in an email that the project has been funded and would begin either this year or next year. She couldn’t say how much the project would cost or whether it was a result of the lawsuit or a previously planned improvement.

She said they couldn’t give out further details because it’s part of a lawsuit.

Todd Shea, an attorney for the Gardiner-Park County Water and Sewer District, declined to comment.

The Gardiner-Park County Water and Sewer District sued Yellowstone in December 2016 over high levels of arsenic found in the district’s sewage treatment facilities. The district asked the court to force Yellowstone to give the district money, fix the leak and monitor its sewer lines in the future.

Sewage from Mammoth Hot Springs has gone to the district’s treatment facilities north of Gardiner for years. The district uses sludge ponds to treat wastewater, and the ponds need to be emptied periodically. Sludge removal is expensive, and high arsenic levels make it even more expensive.

According to the complaint, an engineer told the district in February 2015 that high levels of the odorless chemical were entering the treatment facility. The engineer also said that 95 percent of the arsenic was coming from Yellowstone, and testing showed the park’s sewage had arsenic levels nearly 40 times that of the Gardiner sewage.

The Montana Department of Environmental Quality had directed the district to empty the ponds, but the engineer recommended they wait to do so until the park fixed its arsenic problems, according to the complaint.

The district told the park in a 2015 letter that it couldn’t drain its sludge ponds until the arsenic problem from the park was solved. In 2016, the park finally responded, saying there likely wouldn’t be funding to fix the problem until 2020.

The district sued in December 2016, asking both for the park to fix the arsenic leak and to help pay for sludge removal — the cost of which was estimated at $2 million.

Funding has apparently come through for the project, according to the Interior Department letter, which was attached to a court filing that essentially puts the lawsuit on hold. The letter says the project will replace “deteriorated sewer lines” between the youth camp and Mammoth. The youth camp is south of the park headquarters and the Mammoth Terraces.

There is no mention of what the Park Service might contribute to the sludge removal — the other claim in the lawsuit — but Burnidge did write that they hope “the parties can work together to resolve any issues.”

Park County developers appealing water dispute to Montana Supreme Court

Written by: Michael Wright,  Bozeman Daily Chronicle Staff Writer 

A pair of Park County developers are taking their spat with the local water district to the Montana Supreme Court after a district judge ruled against them.

Max and Sue Berg, represented by attorney Karl Kneuchel, have filed a notice of appeal with the state’s high court in their case against the Gardiner-Park County Water District over the abandonment of a water pipe that served their subdivision near Gardiner.
A Park County district judge earlier this year ruled against them and ordered them to pay the district more than $666,000 in damages.

Kneuchel, the Bergs’ attorney, did not return a call seeking comment before deadline. Todd Shea, the attorney representing the water district, declined to comment because of the appeal.

The Bergs are the developers of the Fort Yellowstone subdivision north of Gardiner along Highway 89. Court documents say they got designs for the subdivision and water and sewer lines approved by the Montana Department of Environmental Quality in 1993.

An existing sewer line that served Mammoth and Gardiner was going to serve the subdivision, but the water line needed to be extended. According to court documents, the Bergs built the extension on the slope between the highway and the Yellowstone River but never built a retaining wall, which was required by the DEQ to stabilize the hillside.
In 2007, an engineering firm warned the water district that the water line might rupture because of erosion caused by the lack of a retaining wall. Court documents say that the engineering firm warned the district that the pipe’s failure could bust the sewer line as well, and potentially result in “millions of gallons of raw sewage” being washed into the Yellowstone River.

Court documents say the water district decided to disconnect the Bergs’ water line and install a new one above the subdivision. Around the same time, DEQ asked the Bergs to confirm whether the water line was built according to the plans, which included a retaining wall. That led to DEQ revoking their permit for the subdivision in 2009.

The Bergs later sued the water district in Park County District Court, arguing that the district’s decision to abandon their water line was detrimental to their subdivision. They asked for upward of $2 million in damages.

The water district denied their claims and in turn countersued the Bergs. Park County District Judge David Cybulski ruled in their favor in late August.

The Bergs’ notice of appeal to the Supreme Court was filed in early October. Formal briefs that lay out their argument will follow.

$666,534.11 Judgment in Favor of Water District against Subdivision Developers

Source: Montana Law Week

WATER EASEMENT TRESPASS/NUISANCE: $622,196.56 damages, $29,991 attorney fees, $14,346.55 costs to Water District against subdivision developers for failure to build retaining wall to prevent erosion of earth protecting water & sewer lines consequently requiring new water line to town… $278,521.81 damages to homeowners… Cybulski.
Max & Sue Berg own Fort Yellowstone subdivision in Gardiner. Max Berg owned Berg Excavation for 25 years and has experience building subdivisions, water lines, sewer lines, roads, and retaining walls. Bergs applied in 1992 for the subdivision with water & sewer to be supplied by what is now known as Gardiner-Park Co. Water & Sewer Dist. The sewer line was an existing line serving Gardiner and Mammoth, but a water line extension needed to be constructed by Bergs to serve the subdivision. The DEQ-approved plans provided that a water line would be on a steep slope between Hwy 89 and the Yellowstone River. A road would be built between the water line and river to provide access to condos along the river. A retaining wall was to be built between the road cut and water line to stabilize the slope. Max Berg installed the water line and road in 1995, but did not install a retaining wall. A year after activating the water line, the Water Dist. noticed that he had punched in a road under the line. The Manager explained that the road “destabilized the slope. The main was essentially along a cliff face.” Despite this, Bergs did not install a retaining wall. Bergs sued Gaston Engineering in 1999 alleging negligence in locating the water line and road below it which resulted in Bergs being “forced to import and place fill as well as build a retaining wall.” Bergs and Gaston settled in 11/00. Great West Engineering warned in 5/07 that the water line was in jeopardy of rupturing because of erosion due to lack of a retaining wall. The District advised Bergs that it planned to disconnect the line and install a new one in the highway right of way. DEQ issued Bergs a violation letter in 3/08 for failure to construct the retaining wall, followed by multiple communications. In 4/08 Bergs advised that they had retained an engineer to design & install gabion basket walls instead of a retaining wall. DEQ approved the substitution. As of 7/09, the gabion baskets had not been installed. DEQ issued a notice of revocation to Bergs pertaining to the subdivision in 10/09 for failure to install the retaining wall. Bergs appealed. Board of Environmental Review affirmed the revocation. Bergs sued the Water Dist. in 12/08 for inverse condemnation, trespass, and quiet title. The District counterclaimed alleging trespass and nuisance and requesting injunctive and declarative relief. The District requests summary judgment.
Bergs trespassed on the District’s easements by causing erosion of the earth cover below the water & sewer lines resulting in no longer having the cover required by its easements. The trespasses also include Berg performing excavation work within the easement areas without permission and leaving boulders on the sewer line easement. The trespass is continuing by virtue of the continued erosion.

Bergs’ conduct that caused erosion of the earth supporting the lines amounts to a public nuisance. The eroding condition of the slope continues to be “injurious to health” “so as to interfere with the comfortable enjoyment of life.” §27-30-101(1). The Gardiner community was “affected” by the eroding condition and installation of a new water line at a cost of $100,000. At the very least, a “neighborhood” of Gardiner was “affected” in that the line installed by Bergs had to be abandoned and a new line installed in the highway right of way. The ongoing threat to the existing sewer line and abandoned water line continues to “affect” at the very least a “neighborhood” of Gardiner. Subdivision lot owners McInerney and Hoffers previously sued Bergs for failing to install a retaining wall resulting in inability to build on any properties. The Court granted summary judgment for them. Bergs created a private nuisance to the Water District by diminishing and damaging its rights to the water and sewer lines. Judgment for the Water Dist. is granted on its public and private nuisance claims.

Bergs are enjoined from causing further erosion below the water and sewer lines. The District is granted access to the Ft. Yellowstone property to inspect and maintain its lines and remediate the erosion.

Following a damages hearing, the Court awarded the Water Dist. $622,196.56 against Bergs, $29,991 attorney fees, and $14,346.55 costs, with interest at 10%.
McInerney and Hoffers were awarded $278,521.81 damages against Bergs, and the District recovered $912.50 costs against McInerney and Hoffers.

Edward Jones Files Interpleader Over Disputed Investment Funds

Source: Montana Law Week

INTERPLEADER: Investment entity granted interpleader in Tribal Court dispute over funds in account, awarded fees & costs… Best.

Edward D. Jones seeks an interpleader to join Lisa Copiskey and Dennis Bohnert because they have claims against each other which may expose Jones to double or multiple liability based on their competing claims for funds in a Jones account. Jones asserts the following, which neither Defendant disputes: Blackfeet Tribal Court issued an order prohibiting Jones from using, reducing, diminishing, transferring, disposing of, and/or in any respect dissipating any funds in Bohnert’s Jones account. Bohnert and Copiskey have appealed several Tribal Court orders relating to distribution of the funds and have disputed its jurisdiction at various times. In light of her appeals, Copiskey has asked Jones not to distribute funds to Bohnert until the appeals are resolved and all underlying claims are heard by Tribal Court. Bohnert has disputed Tribal Court jurisdiction, alleged procedural errors, and disputed Copiskey’s right to execute against the funds.

In Bohnert’s argument to this Court, most of which is inconsistent and difficult to follow logically, he seems to want to have his cake and eat it too: to require Jones to follow Tribal Court orders which favor him, but not follow Tribal Court orders which favor Copiskey. This is patently absurd and points up the problem Jones seeks to solve with this interpleader. None of Bohnert’s arguments, even were they logical, go to the questions this Court must answer. His counterclaim flies in the face of the policy reasons for Rule 22 and is unsupported by the law. There are no legal claims — nor do there appear to be any specific allegations — in support of his counterclaim. Bringing a valid interpleader shields a plaintiff from liability for counterclaims where they are based on a plaintiff bringing an interpleader rather than having to choose between competing claimants. Comyne (ED Wis. 2002).

The Court may in its discretion award attorney fees & costs in bringing the interpleader against the stake. Soha (Mont. 1981). Jones appears to be a disinterested stakeholder, which the parties concede. It is entitled to an award of fees & costs from the stake.
Jones and the parties agree that it has in its possession or control money which is the subject of litigation, held in trust for Bohnert. §25-8-101. The funds in the Bohnert account are ordered to be deposited with the Court. Jones is dismissed with prejudice following payment of the funds into the Court’s registry and determination of fees & costs following a hearing.

Bohnert and Copiskey are ordered to interplead and litigate among themselves their claims to the funds. Jones is discharged from any liability on account of Defendants’ claims in interpleader.

Gardiner Water and Sewer District Sues NPS Over Arsenic

Source: Liz Kearney, Enterprise Staff Writer

The Gardiner Water and Sewer District has filed a lawsuit against the National Park Service over the amount of arsenic flowing into the District’s sewage treatment plant.
In the lawsuit, filed Dec. 21 in U.S. District Court in Billings, the Water and Sewer District alleges that wastewater coming from Mammoth Hot Springs is carrying such a large amount of naturally occurring arsenic that it will cost the district more than $2 million to remove arsenic-laden sludge from its sewage treatment ponds, per a requirement from the Montana Department of Environmental Quality.

The Gardiner Water and Sewer District has treated the sewage from Mammoth for many years, according to the complaint filed by the district’s attorney, Todd Shea, of Bozeman.
The district’s engineer believes the arsenic gets into the system through leaking pipes or manholes from within the park, “and that such conditions are likely prevalent along the route” from the park to the district’s sewage treatment plant, according to the complaint.

The complaint states that arsenic levels in drinking water in both Mammoth and Gardiner, as reported to the district by its engineer, test below the allowable limits.
The NPS needs to address the excess arsenic, the complaint states, because there’s no point in removing the sludge and replacing sewage ponds liners only to have more arsenic accumulate.

The complaint further states that the district wrote several letters to the NPS beginning in February of 2015 that went unanswered before the park agreed to contribute toward the sludge removal and lining replacement. But the park indicated it may not have any funds available until sometime in the year 2020, according to the complaint.

“Given that the District has been directed by the DEQ to dispose of the sludge and replace the liners in its treatment ponds and cannot wait for the Park Service’s responses any longer, it has been compelled to file suit,” the complaint states.

The complaint brings five charges against Yellowstone National Park:

• Breach of contract, for failing to follow through on addressing the high levels of arsenic and failing to contribute funds toward the repair process.
• Trespass. The complaint alleges the park is committing a “continuing trespass,” as the arsenic damage is ongoing and will continue until the park locates the areas of infiltration and repairs them.
• Public nuisance. The park “created a danger to public safety by permitting high levels of arsenic to flow into the District’s sewer treatment plant,” the complaint states.
• Private nuisance. The arsenic from the park forces the district to be responsible for removing and disposing of sludge with a high arsenic level.
• Negligence. The complaint alleges the park failed to monitor the condition of the pipes emptying sewage into the district’s plant, causing the district to suffer damages.

The Gardiner Water and Sewer District is asking the court to issue a mandatory injunction requiring the park to address and correct the high levels of arsenic; that the park contribute funds to the district’s sludge removal project “commensurate with their responsibility for the high levels of arsenic;” that the park pay financial damages and any other relief the court “deems to be just and proper;” and to pay attorneys’ fees and costs.

Representatives from the Water and Sewer District, Yellowstone National Park and the DEQ did not immediately return calls Monday seeking comment.

Morgan Stanley Smith Barney Recovers $258,983

Source: Montana Law Week

Morgan Stanley recovered a $258,983.72 judgment against Paul Stafford in 8/15 in Billings Federal Court for a loan he had not repaid. Stafford requested a Hearing on Claimed Exemptions — $6,200.31 in an HSA at First Interstate Bank. The issue is whether an HSA is exempt from execution under §25-13-608(1)(f):
A judgment debtor is entitled to exemption from execution of the following:
(f) Benefits payable for medical, surgical, or hospital care to the extent they are                      used or will be used to pay for the care;

It is clear that this section does not specifically exempt HSAs. If the Legislature intended them to be exempt, it could have put them in the law. Further, while HSAs may be used for medical, surgical, or hospital care, they are not required to be used for those purposes; they may be used to pay for long-term care insurance or for health insurance if the person is receiving unemployment comp. 26 USC §223(d)(2)(C)(ii). Most importantly, they may be used for non-medical purposes, although subject to a 20% tax. 223(f)(4)(A). Primarily due to this last exemption, the Court does not find that 25-13-608(1)(f) exempts HSAs from execution. Although a penalty may be imposed, they may be used for non-medical purposes. This fact, coupled with the fact that the Legislature has not specifically exempted HSAs, leads to the conclusion that they are subject to execution. Morgan Stanley’s writ of execution on the $6,200.31 in Stafford’s HSA is allowed.

Case Dismissed in Wrongful Termination of Transgender Server

Source: Montana Law Week

SEX DISCRIMINATION: No reasonable cause to believe unlawful discrimination in termination of transgender server.

Nash Walden was hired by Silver Star Steak Co., Helena, in 4/13 as a server. In early 8/14 he requested a 4-week leave from GM Jeff Hiel to complete his transition from female to male (look into legal & medical issues and return to work as Nash rather than Natt, short for Natalie, by which most co-workers referred to him). Hiel stated that Walden could return to work if a position was available, but no guarantees. Walden said he is aware of other instances in which Silver Star granted extended leaves for non-transgender employees. On 8/30/14 Walden had an emergency and needed to take the day off. He followed protocol in alerting Silver Star at least 2 hours before his shift. The manager on duty said he needed to find someone to cover his shift or he would have to work. Walden said he texted other employees to ask if they could cover and continued to advise Silver Star of his progress. He was unable to find a replacement and arrived to work about 12 minutes late. The manager on duty told him to clock out and go home. Later that day he was told to attend a meeting 3 days later. At that meeting, Hiel terminated him. Walden said one of the reasons given is that he ruined the manager’s morning on 8/30 because he called multiple times to discuss his leave request. Silver Star cited this as insubordination, he said, although he is aware of other instances in which non-transgenders were allowed to miss shifts for personal reasons. He alleges that Silver Star discriminated against him because of his sex.

According to Silver Star, Walden was terminated for well-documented performance problems and his transgender status had “no impact” on it. He had been given a written warning in early 4/14 over poor work, conduct with guests, and policy & procedure violations. It requires an employee to find a replacement at least 2 hours prior to a shift, which Walden did not do. It said the software it provides for employees to view their shifts and make arrangements for coverage shows his first attempt to find coverage at 9:43 a.m. for the shift scheduled to start at 10:30 a.m. A reprimand was written that day by food & beverage director Joey Balbas. Silver Star said Walden was suspended for attendance, attitude toward his supervisor, tardiness, and a policy/procedure violation over the incident, and was terminated for insubordination, disrespect, disorderly conduct, and repeated profanity.

Walden established a prima facie case of employment discrimination. He is a transgender and falls under the protected class of sex-gender stereotypes based on recent case law and EEOC guidelines. He had been employed since 4/13. He said Silver Star denied extended leave provided others and terminated him in circumstances where others were not terminated. He asserts that he believes others were treated better in requests for extended leave, and highlighted what he perceived to be a harsh denial when Hiel told him to “not make a big deal” of his transition from female to male.

I find no reasonable cause to believe unlawful discrimination occurred. Walden was unable to show that he was treated differently from others because of his transgender status. Hiel, bar manager Eric Anderson, and Balbas described that its policy is to lay off employees who request extended leave and hire them back on their return. While this may appear unusual, Balbas described it in some detail, noting “bookkeeping” concerns, and Hiel and Anderson described what they believed to be practical aspects. Walden’s behavior at the meeting was unprofessional and provided basis for termination. Walden acknowledged that he was “extremely upset” given the circumstances and timing. Silver Star said he came in with a chip on his shoulder. Hiel commented that his behavior was unlike any he had ever seen in an employment setting. Walden acknowledged repeated use of the “F-bomb.” Balbas fired 5 others in 2014 over behavior and performance, and recently fired an employee over violations of call-off procedures. None of the terminated employees was known by Silver Star to be outside the stereotypical gender status.