Ramer v. City of Billings , 2007 MT 144N ( 2007 )

No. DA 06-0343
IN THE SUPREME COURT OF THE STATE OF MONTANA
2007 MT 144N
____________________________________
JOHN W. RAMER,
Plaintiff and Appellant,
v.
CITY OF BILLINGS,
Defendant, Respondent and
Cross-Appellant.
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APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone, Cause No. DV 04-1263,
The Honorable Gregory R. Todd, Presiding Judge.
COUNSEL OF RECORD:
For Appellant:
Mary Ann Sutton, Attorney at Law, Missoula, Montana
Jeffrey A. Simkovic, Simkovic Law Firm, Billings, Montana
For Respondent:
Harlan B. Krough and Michael E. Begley, Moulton, Bellingham, Longo &
Mather, P.C., Billings, Montana
____________________________________
Submitted on Briefs: April 25, 2007
Decided: June 12, 2007
Filed:
_____________________________________________
Clerk
Justice Brian Morris delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be
cited as precedent. It shall be filed as a public document with the Clerk of the Supreme
Court and its case title, Supreme Court cause number, and disposition shall be included in
this Court’s quarterly list of noncitable cases published in the Pacific Reporter and
Montana Reports.
¶2 Appellant John W. Ramer (Ramer) appeals from the District Court’s order
granting summary judgment to the City of Billings (City) in his age discrimination
complaint. The City has filed a cross-appeal from the District Court’s order denying its
motion for summary judgment on its claim that Ramer’s action is time barred. We affirm
the District Court’s order granting summary judgment to the City and do not reach the
City’s cross-appeal.
¶3 Ramer worked for the City for almost 18 years in the Public Utilities Department.
He applied for a promotion at age 58 to a Senior Equipment Operator position. Ramer
and five other candidates took a written test, and the City designated a four-member
committee that interviewed each candidate. The committee unanimously chose another
person as the successful candidate.
¶4 Ramer filed a complaint with the Human Rights Commission and with the Equal
Employment Opportunity Commission (EEOC). Ramer was unsuccessful before the
Human Rights Commission and the EEOC. He filed an action in District Court, but not
before the time ran for filing the petition for judicial review of the Human Rights
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Commission’s decision. The District Court dismissed this portion of his claim. The
District Court did allow Ramer to proceed with his age discrimination claim under the
Age Discrimination and Employment Act, 29 U.S.C.A. §§ 621-634 (ADEA). The court
rejected the City’s motion for summary judgment that Ramer’s ADEA claim also was
time barred.
¶5 The District Court granted the City’s later motion for summary judgment on the
grounds that Ramer had failed to make out a prima facie case of age discrimination under
the ADEA. In particular, the court determined that Ramer had admitted, as a matter of
law, that the selection committee did not intend to discriminate against him. The court
explained that Ramer had failed to respond to the City’s M. R. Civ. P. 36(a) request that
he “[a]dmit that none of the four (4) individuals on the selection hiring committee
intended to discriminate against [him].” Ramer appeals.
¶6 We review de novo a district court’s decision to grant summary judgment, based
upon the same criteria applied by the district court. Hardy v. Vision Service Plan, 2005
MT 232, ¶ 10, 328 Mont. 385, ¶ 10, 120 P.3d 402, ¶ 10. We must determine whether the
court correctly found that no genuine issues of material fact existed and whether the court
applied the law correctly. Hardy, ¶ 10.
¶7 At the outset, we note that Ramer offers no explanation or counter argument to the
court’s conclusion that he admitted that the committee lacked discriminatory intent.
Ramer carries the “ultimate burden of persuading the trier of fact that the defendant
intentionally discriminated against [him] . . . .” Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981). Yet Ramer has admitted, as a matter of law, that the
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committee acted without discriminatory intent. We have repeatedly held that
“admissions obtained by way of [M. R. Civ. P. 36] may demonstrate that there is no
genuine issue of material fact, justifying entry of summary judgment . . . .” Spooner
Const. & Tree Service v. Maner, 2000 MT 161, ¶ 37, 300 Mont. 268, ¶ 37, 3 P.3d 641, ¶
37. In light of his admission, Ramer cannot possibly create a genuine issue of material
fact as to whether the City acted with discriminatory intent. Hardy, ¶ 10.
¶8 We have determined to decide this case pursuant to Section I, Paragraph 3(d), of
our 1996 Internal Operating Rules, as amended in 2003, which provides for
memorandum opinions. It is manifest on the face of the briefs and record before us that
no genuine issue of material fact exists. It is also manifest on the face of the briefs and
record before us that settled Montana law clearly controls the legal issues and the District
Court correctly interpreted the law.
¶9 We affirm.
/S/ BRIAN MORRIS
We Concur:
/S/ JOHN WARNER
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ JIM RICE
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