Opinion
DA 20-0398
10-26-2021
BRADLEY BARTHEL, Plaintiff and Appellant, v. BARRETTS MINERALS INC. and JAMES DE LOS RIOS, Defendants and Appellees.
ORDER
On September 14, 2021, we issued an Opinion in the above-entitled action, affirming the District Court's Order granting Barretts Minerals, Inc. (Barretts) and James De Los Rios' motion to dismiss Barthel's First Amended Complaint pursuant to M. R. Civ. P. 12(b)(6). On September 27, 2021, Barthel filed a Petition for Rehearing. M. R. App. P. 20(1)(a) provides that a petition for rehearing will be considered only when the Court ''overlooked some fact material to the decision," when "it overlooked some question presented by counsel that would have proven decisive to the case," or when "its decision conflicts with a statute or controlling decision not addressed" by the Court.
Barthel makes two arguments in his petition. First, he contends the contract interpretation issue was neither raised by the parties nor considered by the District Court. This is incorrect. The District Court expressly held that Barrett's personnel policy required Barthel to notify Barretts of his medical marijuana use. The District Court held that Barthel's failure to notify Barretts violated this policy and constituted good cause for dismissal. On appeal, Barthel dedicated an entire subsection in his opening brief to the contract interpretation issue of the policy provision requiring notification when marijuana use "may have an adverse effect." Barthel interpreted that provision to mean that whether his marijuana use had an adverse effect was a question of fact for a jury to resolve. We considered and rejected this argument. Opinion. ¶ 15.
Second, Barthel asserts the Court overlooked a fact "material to the decision," specifically his contention that he never reported to work while ''under the influence of marijuana." It is undisputed that THC was in Barthel's system while on duty. When Barthel was randomly selected for a drug and alcohol urine analysis, he advised his supervisor that he likely would test positive for THC. Opinion, ¶ 4. Barthel's assertion that he was not "under the influence of marijuana" while on duty is essentially a refraining of his argument that the personnel policy did not require him to report his marijuana use because he had unilaterally determined it did not pose a safety risk or affect his job performance. We considered and rejected that argument. Opinion, ¶ ¶ 18-20. "[Interpretation of an employer's personnel policy is a question of law." Buckley v. Western Mont. Cmty. Mental Health Or., 2021 MT 82. ¶ 13. 403 Mont. 524. 485 P.3d 1211 (citation omitted). Barthel may disagree with the Court's interpretation of the policy's notification provision, but he has not identified any overlooked material facts.
Having fully considered Barthel's petition, we conclude a rehearing is not warranted under the standards of M. R. App. P. 20{ l)(a). Accordingly, IT IS HEREBY ORDERED that the petition for rehearing is DENIED.
The Clerk of Court is directed to mail copies of this Order to all counsel of record.