Reason for firing

[ranco]

Why can't the university/Engstrom tell the two why they were fired?

Because, it appears the University is terminating using the no cause clause in the contracts. If they terminate for cause, they have to defend their actions.

The University wants a change of leadership, not a lawsuit.

If you can get a cc of the contract, read the termination provision, and let us know what it says with regard to any reimbursement for terminating without cause.

You just don't get it. After that MT Sup Ct case, it is not possible to terminate an employee in Montana without compliance with the MT wrongful termination act. A termination without cause provision doesn't work anymore. I know what these provisions say. They say that payment of salary and benefits will continue to end the of term of the contract. However, the statute and MT Sup Ct decision as written doesn't care how much they will be paid.

PlayerRep is right. But, correct me if I'm reading it differently, I don't read the case to say that it is impossible to terminate an employee in Montana without compliance with the Act. I read it to say that employers and employees can still contract around the Act if the written contract is for a specific employment term and the contract does not include a clause that the employee can be fired without cause.

In the Yellowstone case, the court reasoned that the employment term was not "definite or specific" because the contract also included a clause that the employee could be fired without cause. The argument is that the exception to the Act only applies when the employee has a legal right to remain employed for a specific time, and how can the contract be for a specific term of employment when you can fire me without cause? The "without cause" clause trumped the specific employment term so as to take the contract at issue out of the exception to the Act, and thus necessitate compliance with the Act. Just based on a quick read, so maybe I'm missing something . . .

No, you are exactly right, which is why Pflu has a wrongful termination case under the Act (I assume O'day's contract is similar but I haven't read it). His contract contains a term saying he can be fired without cause.

 

[PlayerRep]

Why can't the university/Engstrom tell the two why they were fired?

Because, it appears the University is terminating using the no cause clause in the contracts. If they terminate for cause, they have to defend their actions.

The University wants a change of leadership, not a lawsuit.

If you can get a cc of the contract, read the termination provision, and let us know what it says with regard to any reimbursement for terminating without cause.

You just don't get it. After that MT Sup Ct case, it is not possible to terminate an employee in Montana without compliance with the MT wrongful termination act. A termination without cause provision doesn't work anymore. I know what these provisions say. They say that payment of salary and benefits will continue to end the of term of the contract. However, the statute and MT Sup Ct decision as written doesn't care how much they will be paid.

PlayerRep is right. But, correct me if I'm reading it differently, I don't read the case to say that it is impossible to terminate an employee in Montana without compliance with the Act. I read it to say that employers and employees can still contract around the Act if the written contract is for a specific employment term and the contract does not include a clause that the employee can be fired without cause.

In the Yellowstone case, the court reasoned that the employment term was not "definite or specific" because the contract also included a clause that the employee could be fired without cause. The argument is that the exception to the Act only applies when the employee has a legal right to remain employed for a specific time, and how can the contract be for a specific term of employment when you can fire me without cause? The "without cause" clause trumped the specific employment term so as to take the contract at issue out of the exception to the Act, and thus necessitate compliance with the Act. Just based on a quick read, so maybe I'm missing something . . .

Correct, CDA. An employment contract can include a provision to terminate for cause--even without severance payments. However, if a termination without cause provision has been included, the case holds that the employment situation goes back into the MT statute's provisions for termination, which essentially means that termination must be for cause in situations like this. The case caused a major change in how employment agreements can be written, or at least written in a manner than will be enforceable as written.

 

[AllWeatherFan]

Even if you prevail in a wrongful discharge claim, you don't get your job back. You get, at most, four years' salary, and the attorney gets a third of that. Take the money, gents, and don't give it to the lawyers, no matter how persuasively they try to argue that you "have a case."

It's over. Move along. Nothing to see here.

 

[ranco]

Even if you prevail in a wrongful discharge claim, you don't get your job back. You get, at most, four years' salary, and the attorney gets a third of that. Take the money, gents, and don't give it to the lawyers, no matter how persuasively they try to argue that you "have a case."

It's over. Move along. Nothing to see here.

which equates to about a Million bucks between the two of them. Where is RE going to find that money?

 

[GrizPony]

Even if you prevail in a wrongful discharge claim, you don't get your job back. You get, at most, four years' salary, and the attorney gets a third of that. Take the money, gents, and don't give it to the lawyers, no matter how persuasively they try to argue that you "have a case."

It's over. Move along. Nothing to see here.

Do you think they get offered 4 years money without a lawyer? If the lawyers get them 4 years worth of payments, then they have earned their fee. Why can't people understand that individuals don't usually hire lawyers until they NEED them? Its just like any other profession.

 

[grizpack]

There is also no evidence that the sequence did not happen and there is evidence that Pflugrad made an incredibly stupid public statement after Engstrom had made it clear that things needed to change. Could have been a power trip, but Pflugrad should have been astute enough to know better.

That statement brought the female faculty to the boiling point. Engstrom had them all over his back. They have enormous influence in a University that is 54% female. As a group they are not 100% behind the athletic dept. in the best of times.

Including a couple who supposedly got to the new Regent, Pat Williams, and got him all fired up. Pat should have stuck to his day job. Oh. That is right. He is a retired Representative. He doesn't need one. We make sure he is fine.

 

[AZGrizFan]

How were the contracts terminated? It appears both men will receive full pay under the contracts. It looks like the President eliminated duties under the contract, but left the salaries in place.

The contracts included provisions for the AD and coach to serve as an AD and coach. Perhaps to have offices. Perhaps to have some perks, like a golf course membership. The contract for Pflu included provisions to make other income from bonuses and tv/radio appearances. All of those things have been terminated. If the only obligation for either party was for the university to pay them money, then there would have been only a promissory note and not employment contract. Jeez, I hope you have enough brainpower to understand this.

The recent MT Sup Ct case says that the no-cause termination provision makes an employment situation into a termination-at-will situation that is governed by the MT wrongful termination agreement.

?? ????? Playa, have you seen the contracts, or are you speculating?

I've read (and studied) the case, seen press reports, and have looked at the provision in the past, including the one in Kramer's contract. The case is absolutely clear on the point. Have you read the case. Yellowstone Club v. Brown, from last fall. Easy to find on the internet. http://caselaw.findlaw.com/mt-supreme-court/1573755.html" onclick="window.open(this.href);return false;

"A contract for a stated term removes employment from the at-will doctrine only if there is an enforceable right for the employee to remain for that length of time. The period of time must be definite legally; it must be a promise and not just a goal. If what the contract gives in one provision for a set term is taken back in another for discharge at the sole discretion of the employer, there is a legally indefinite term of employment."

Do you think Pflu/O'Day had "enforceable rights to remain for [the length of time of the contract]"? The payment of severance doesn't change this analysis. There was severance in the Yellowstone Club case. There was no discussion about whether the amount of severance was reasonable. That's not the point of the case, and the statutory provision it was decided under.

So the answer to his question is "NO"? You haven't read the contracts?

 

[AllWeatherFan]

First, you'd have to turn it into a wrongful discharge case, and that's a tall hurdle to get over. Then you'd have to win that case, another tall hurdle.

Or, in the alternative, without paying for an attorney's time, you could just let the University buy out your contract.

To me it's a no-brainer, but since I'm not an attorney, I have no vested interest.

Reminds me of a cartoon in the New Yorker. A guy is sitting there talking to his son, who looks to be about four years old, and he says, "Son, there is a lot of injustice in this world. That's why I want you to become an attorney - so you can profit from it."

 

[MissingBigSky]

Only one Griz athlete has been charged with sexual intercourse without consent. He's been kicked off the team.

Rape. It's called Rape.

 

[SoCalGriz]

Only one Griz athlete has been charged with sexual intercourse without consent. He's been kicked off the team.

Rape. It's called Rape.

What's your point Missing.

 

[PlayerRep]

First, you'd have to turn it into a wrongful discharge case, and that's a tall hurdle to get over. Then you'd have to win that case, another tall hurdle.

Or, in the alternative, without paying for an attorney's time, you could just let the University buy out your contract.

To me it's a no-brainer, but since I'm not an attorney, I have no vested interest.

Reminds me of a cartoon in the New Yorker. A guy is sitting there talking to his son, who looks to be about four years old, and he says, "Son, there is a lot of injustice in this world. That's why I want you to become an attorney - so you can profit from it."

Why do you think it would be hard to turn it into a wrongful discharge case, given the recent MT Sup Ct case? Looks like a no-brainer to me.

Pflu's attorney said Pflu had been promised a new 3-year contract. Do you think UM would buy him out of a 3-year contract without an attorney representing him? Do you think Pflu would be aware of the new MT Sup Ct case before consulting an attorney?

What's a no-brainer is for Pflu to involve a good attorney. Given the 15-month payment for O'Day, he may be in a different position than Pflu. However, if it turns out to be true that the termination process was bad (like female professors talking to Williams who pressured Engstrom, who didn't consult with the right people like Foley)--and given the recent MT Sup Ct case--and given that UM has admitted that they have to pay him for 15 months--then maybe a wrongful termination claim asking for 4 years of salary/benefits and possibly punitive damages would look more attractive.

 

[CDAGRIZ]

First, you'd have to turn it into a wrongful discharge case, and that's a tall hurdle to get over. Then you'd have to win that case, another tall hurdle.

Or, in the alternative, without paying for an attorney's time, you could just let the University buy out your contract.

To me it's a no-brainer, but since I'm not an attorney, I have no vested interest.

Reminds me of a cartoon in the New Yorker. A guy is sitting there talking to his son, who looks to be about four years old, and he says, "Son, there is a lot of injustice in this world. That's why I want you to become an attorney - so you can profit from it."

Sorry, because I'm not as up-to-date as most on all of this; I didn't know the University was offering to buy out the contracts.

Also, if what others say is true regarding the provisions of the contracts, I don't see it being very difficult to "turn it into" a wrongful discharge action.

 

[tnt]

Well seeing as Odays was settled by the exact terms of the contract (with an attorney) what seems a no-brainer apparently isn't. But apparently he wasn't wrongfully discharged either.

Pflu? I wasn't aware that even in Montana that discussions about a contract before terms were agreed on made a contract..... How did that come about?

 

[PlayerRep]

Well seeing as Odays was settled by the exact terms of the contract (with an attorney) what seems a no-brainer apparently isn't. But apparently he wasn't wrongfully discharged either.

Pflu? I wasn't aware that even in Montana that discussions about a contract before terms were agreed on made a contract..... How did that come about?

The terms were agreed to and the contract promised to him. He relied on this. He didn't pursue another job opportunity. He told the new assistants, who had to decide whether to take the job and move to Missoula, that he had the 3-year commitment. He told recruits the same thing. It would be interesting to see what emails, etc. say. Do you think O'Day has any incentive to shade the truth in favor of the university on this point?

 

[AllWeatherFan]

Why do you think it would be hard to turn it into a wrongful discharge case, given the recent MT Sup Ct case? Looks like a no-brainer to me.

Because the University is honoring the terms of the contract by paying the money. And then they're not renewing the contract once that obligation is satisfied. And nothing in the Yellowstone Club case limits or restricts their ability to do that.

And yes, I know you don't agree, and I know exactly why you don't agree. Just saving you some typing.

 

[tnt]

I understand the reliance argument... Were all the terms there? Salary, incentives, BOR approval among others? Not much different to that point than a commision salesman who hears "yeah this is what I want" from the end user, "I just gotta get the final approval from the Boss, but that shouldn't be any problem" So the salesman orders a new car, takes his wife out to dinner, only to hear a few days latter "Nope the boss says not till next year" Plenty of reliance. Same thing with the non tennured school teacher who is recommended for contract renwal, knows the terms, makes his plans for the next year only to hear sorry Bud, the board said no. They want someone one different. (which happens a LOT in this state)

Seriously, I'm not trying to be argumentative, just want to know. That doesn't mean something entirley different couldn't happen, I know. Law is far from dry especially labor law.....

 

[ranco]

Well seeing as Odays was settled by the exact terms of the contract (with an attorney) what seems a no-brainer apparently isn't. But apparently he wasn't wrongfully discharged either.

Pflu? I wasn't aware that even in Montana that discussions about a contract before terms were agreed on made a contract..... How did that come about?

I didn't read that as being a settlement. I think the U unilaterally said it will pay another year because they improperly "TERMINATED" the contract without proper notice. My hunch is, they will pay that amount plus another 100K or 2.

 

[grizpack]

I am actually pretty surprised that I have heard the university utter the word "terminate". When it happened, it was just that they chose not to renew the contract.

 

[PlayerRep]

Why do you think it would be hard to turn it into a wrongful discharge case, given the recent MT Sup Ct case? Looks like a no-brainer to me.

Because the University is honoring the terms of the contract by paying the money. And then they're not renewing the contract once that obligation is satisfied. And nothing in the Yellowstone Club case limits or restricts their ability to do that.

And yes, I know you don't agree, and I know exactly why you don't agree. Just saving you some typing.

The Yellowstone Club case turns the situation you describe into a situation for which a wrongful termination claim can be brought. If the employee's employment or the contract can be terminated by one party prior to it's stated term, the court found that the contract is not a contract with a specific term--and as such does not qualify for the protection of the statute against a wrongful termination claim. It doesn't matter if university is paying the money. That's not the point. In the YC case, YC was paying the money. UM has terminated the employment of these guys. If they had not, Pflu and the O'Day would still be the coach and AD.

Look, I'm going to respond to every incorrect post you or anyone else makes on this. I know what I'm talking about on this one. I do this for a living.

From the case. Note that it was a unanimous decision by the court.

"¶ 9 The issue in this case is whether an employment contract for a specified term (here, three years) that also allows the employer to terminate the employee at will, for no cause, is a contract for a “specific term” under the exception provided in § 39–2–912, MCA."

"A contract for a stated term removes employment from the at-will doctrine only if there is an enforceable right for the employee to remain for that length of time. The period of time must be definite legally; it must be a promise and not just a goal. If what the contract gives in one provision for a set term is taken back in another for discharge at the sole discretion of the employer, there is a legally indefinite term of employment."

"If an employment contract for a specific term also allows the employer to terminate at will (after completion of the probationary period), it is not a “written contract for a specific term” under that statute. A discharged employee covered by such a contract is not excluded by § 39–2–912, MCA, from bringing a claim under the Wrongful Discharge from Employment Act."

"¶ 12 Construing the employment agreement in this case as one for a specific term would remove the discharge from the Act; could effectively reinstate at-will employment in Montana, and would leave the discharged employee arguably without remedy. He would not be able to bring an action under the Act, and at the same time would be subject to the employer's contractual right to discharge at will. Such a result would be contrary to the weight of authority and would undermine the purposes of the Act."

http://caselaw.findlaw.com/mt-supreme-court/1573755.html" onclick="window.open(this.href);return false;

 

[AllWeatherFan]

It doesn't matter if university is paying the money. That's not the point. In the YC case, YC was paying the money.

Wrong. The Yellowstone Club did not pay the salary and benefits through the term of the contract. They paid a minor severance to avoid paying the salary and benefits.