Mr James E Donovan Edit

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1. 1. Donovan v. State, 9/20/00

   www.mtbizlaw.com/1stjd2000/Don - [Cached]

   Published on: 9/20/2000   Last Visited: 2/12/2005

   JAMES E. DONOVAN,
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   This case arose out of an employment offer that was originally extended to Plaintiff James E. Donovan (hereinafter Donovan) and was later withdrawn. Donovan applied for a job as a probation and parole officer with the Montana Department of Corrections sometime in August 1995. Defendant James Simonich also applied for the job. Defendant Thomas Meissner is the Fergus County Attorney.
   
   On October 2, 1995, Donovan was offered a job as a probation and parole officer to begin on October 30, 1995. In the letter sent to Donovan, he was informed that "[a]s a newly hired employee, you must serve a probationary period of six months." At the time he was offered the job with the Department of Corrections, Donovan worked for Midnite Mail Express as a driver. He quit that job on or about October 14, 1995. Donovan received a letter dated October 17, 1995, from Tom Dolan, personnel officer for the Department of Corrections.
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   Thereafter, Donovan received a letter dated November 9, 1995, from Mike Ferriter, Bureau Chief of Community Corrections for the Department of Corrections.
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   The first reason stated for not offering employment to Donovan in the November 9, 1995, letter was as follows:
   
   The County Attorney from Lewistown indicated to me that he had no desire to work with you. He said that he had no confidence in you and felt he could not trust you. He indicated that his belief was based upon your reputation in the community and his knowledge of you.
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   At page 4 of Plaintiff's Reply Brief to Defendants' Motions for Summary Judgment, it is admitted that there is no evidence that Simonich in any way interfered with the contractual relationship between Donovan and the state of Montana.
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   The balance of Count I alleges that Meissner and Fergus County tortiously interfered with the contractual relation between Donovan and the state of Montana.
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   Further, Meissner and Fergus County suggest that other people also called the Department of Corrections after October 17, 1995, including the Glacier County Welfare Office where Donovan earlier worked, parole officers in Lewistown, the sheriff's office in Lewistown, and social workers in Lewistown.
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   The problem with this argument put forth by Meissner and Fergus County is that it is not clear when the final decision was made not to hire Donovan.
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   Indeed, when we look at the November 9, 1995, letter to Donovan from Ferriter, that letter appears to be the one that conclusively terminated Donovan's chances for the job in question.
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   At page 50 of that deposition, Dolan indicated that it is not true that the decision to terminate Donovan was made by October 17, 1995.
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   Thus, there is a factual question as to when the actual decision was made to terminate Donovan.
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   The letter of November 9, 1995, finally disposing of Donovan's employment opportunity lists as its first reason the fact that Meissner had no desire to work with Donovan.
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   The state argues that Donovan cannot bring a contractual claim against the state for a variety of reasons. First, the state alleges that since Donovan brought a wrongful discharge case, that action is exclusive, and pursuant to Section 39-2-913, MCA, the contract action cannot be brought. See Mysse v. Martens, 279 Mont. 253, 926 P.2d 765 (1996).
   
   This Court rejects this suggestion since all agree that Donovan does not, in fact, have a wrongful discharge claim. The Court does not feel that he should be excluded from court just because he filed an ill-fated count alleging wrongful discharge.
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   Here, there is no allegation that Donovan was discharged in retaliation for refusing to violate public policy or for reporting a violation of public policy. Thus, for Donovan's first six months as a probationary employee, the state could discharge him for any reason at any time.
   
   The question then becomes, did Donovan have some additional protection prior to the beginning of employment? Most of the courts that have reviewed this question have said "no." Although Donovan may have had a claim for promissory estoppel or some sort of reliance claim, no such claim is made in the complaint. See Tracy A. Bateman, Annotation, Employer's State-Law Liability for Withdrawing, or Substantially Altering, Job Offer for Indefinite Period before Employee Actually Commences Employment, 1 ALR 5th 401 (1992).
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   Next, Donovan alleges violation of Section 39-2-303, MCA.
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   In answering Request for Admission No. 10, Donovan has indicated that the state of Montana did not mislead or deceive him, and that it did not falsely advertise concerning any conditions of employment. Indeed, Donovan is unable to point out what "other condition of employment" may have been misrepresented. Therefore, the state of Montana is awarded summary judgment on Count Four.
   
   Count Five - Taking of Employment
   
   In this count, Donovan contends that he had a property interest in his job at Midnite Mail Express. Donovan has two problems with this count. First, he is unable to point to anything done by the state of Montana that deprived him of his job at Midnite Mail Express. He voluntarily quit that job, and the state did not "take" that job from him.
   
   Further, in order to say that his job at Midnite Mail Express was a protected property interest, Donovan must point to some contract, state law or regulation that gave his Midnite Mail Express employment some protected status. He has failed to do this as well. See e.g., Boreen v. Christensen, 267 Mont. 405, 884 P.2d 761 (1994).