The Montana Department of Justice has appealed a Park County case in which a jury found the department was liable for a trooper's early resignation from the Montana Highway Patrol.
In May, a Park County jury awarded Shawn Fowler, who was hired as a Montana Highway Patrol trooper in 2001, more than $114,000 after finding his supervisors had created an unreasonably hostile work environment in response to his job performance on a DUI investigation in 2015.
Fowler sued the Department of Justice and Montana Highway Patrol in 2019 for wrongful discharge. He sued the Montana Federation of Public Employees, the state employees' union, too, for not following through with his grievances against the agency.
The trial in May lasted four days. Fowler's attorney, Karl Knuchel said winning the jury meant showing that any reasonable person would have quit under the conditions his supervisors imposed on Fowler.
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Knuchel said Fowler brought the case, at least in part, to clear his name.
"I think Shawn did this more as a statement of his character and feeling like he had been wronged by the department, even though he had given them 17 years employment," Knuchel said in a recent interview.
The Department of Justice argued, however, that Fowler was only subject to consequences of poor performance on the job and that the issues raised in Fowler's complaints, like scheduling, work duties and discipline, were within the highway patrol's discretion according to the collective bargaining agreement with MHP troopers. Additionally, previous court cases have found employees covered by collective bargaining agreements were barred from wrongful discharge claims, DOJ argued.
A spokesperson for the Department of Justice did not respond to a request for comment on the appeal before press time.
According to his initial filings in District Court, Fowler's fallout with the state began in 2015 when he investigated a hit-and-run in Sweet Grass County. Fowler issued several citations: leaving the scene of an accident, hit-and-run, careless driving and drug possession, due to his suspicion the driver had been using marijuana. Fowler obtained a blood sample from the driver, but did not cite them for a marijuana-impaired DUI because he was waiting for the state crime lab to make an analysis from the blood, according to the complaint. He did not make an arrest and the driver was allowed to leave.
Fowler's initial decision not to cite the driver for a DUI would be the source of harassment, criticism and belittlement for years to come, according to court filings. Supervisors gave scheduling preference to more junior troopers, repeatedly questioned Fowler's drug enforcement methods, held him back from training conferences and issued him a disciplinary letter for the Sweet Grass County incident in 2017, two years after the incident. In the spring of 2018, Fowler was again disciplined for not charging the suspect with a DUI, and he was removed from K-9 handling with the patrol.
The situation became "so intolerable" that Fowler refinanced his home mortgage and used the money to purchase his remaining active service so he could retire, rather than be fired by the highway patrol, according to court documents. In legal parlance, this is called "constructive discharge," and a Park County jury found in late May that MHP had created such an environment that any reasonable person would have quit, as well.
Fowler had filed a grievance with MHP near the end of his tenure with the highway patrol, arguing against a 2-day suspension and his removal from K-9 duties. Then-Col. Tom Butler, the chief of the MHP, rejected the grievance, which would send the matter back to the union for determination on whether to take the matter to arbitration. But the union's board of directors, after considering the grievance, decided it would not take the complaint to arbitration.
According to correspondence within the union regarding Fowler's grievance contained in court documents, then-director of the union Quint Nyman summarized, "In a nutshell he allowed a driver to leave the scene of a crash. … In talking through this issue with several troopers I was given feedback that they were surprised at the outcome and that he wasn't terminated."
In its response to the lawsuit, MFPE said determining not to follow up on Fowler's grievance was consistent with the union's policies. The union ultimately settled with Fowler and was dropped from the case.
The Department of Justice sought to dismiss the case in District Court, pointing out that Fowler's grievance did not focus on the hostile work environment, but the suspension and his K-9 duties. Because Fowler did not bring his complaint about a hostile work environment through the union, he was barred from doing so in District Court, especially after the 6-month statute of limitations set on union disputes.
District Court Judge Brenda Gilbert rejected that argument during the court proceedings, and the department appealed the rejection to the state Supreme Court. There, too, the high court rejected the state's motion, but wrote that the Department of Justice was procedurally barred from doing so until the normal appeal process, after the case had resolved in District Court.
The department of Justice filed its appeal on Thursday. The risk management and tort defense division is handling the case for the Department of Justice.