BETTY L. TONACK, Plaintiff and Respondent, v. MONTANA BANK OF BILLINGS, Defendant and Appellant.
No. 92-343
Supreme Court of Montana
May 13, 1993
Rehearing Denied June 10, 1993
258 Mont. 247 | 854 P.2d 326 | 50 St. Rep. 518
Submitted on Briefs January 14, 1993.
For Plaintiff and Respondent: A. Clifford Edwards, Kevin M. Funyak, Edwards Law Firm, Billings.
JUSTICE MCDONOUGH delivered the Opinion of the Court.
Montana Bank of Billings appeals from a judgment entered against it in the District Court for the Thirteenth Judicial District, Yellowstone County. The court awarded Bеtty L. Tonack $111,270 in damages on her claims of wrongful discharge and age discrimination. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
We restate the dispositive issues as:
1. Are certain findings of fact concerning the claim of violation of the Age Discrimination in Employment Act clearly erroneous?
2. Did the District Court incorrectly interpret or misapply the provisions of the Age Discrimination in Employment Act?
3. Did the District Court incorrectly interpret or misapply the provisions of the Wrongful Discharge Act?
Betty Tonack began working for the Montana Bank of Sidney in 1981. When she began working there, Tonack held a teller position. She was promoted to teller supervisor. In October 1988, she took a job with the Montana Bank of Billings, with which the bank in Sidney was affiliated. When she moved to Billings, she became the bank‘s Financial Services Representative (FSR).
In January of 1990, Tonack‘s performance as an FSR was evaluated as fully satisfactory; “more toward the excellent side.” She was given additional duties and responsibilities as a teller supervisor in addition to her duties as the FSR.
In May 1990, Lynette Kiedrowski became Tonack‘s new supervisor. In August 1990, after irregularities were discovered in a bank audit, Kiedrowski placed Tonack on a 30-day probation. The irregularities included a theft that had occurred in the travelers check area of the bank. The area in which the theft occurred was not under Tonack‘s supervision and the theft occurred while Tonack was away on vaca-
While she was still on probation, Tоnack became aware that the bank had ordered calling cards prepared for a newly-hired bank employee, Rhonda Kreamer, which showed Kreamer‘s job title as FSR. The bank had only one FSR position. Also, Kiedrowski instructed Tonack to cross-train Kreamer to serve as backup FSR.
During the week the training was to occur, Kiedrowski was out of town. The person who had been expected to cover for Kreamer during training failed to report to work. Tonack therefore decided to postpone the training. Kreamer resigned. When Kiedrowski returned, she immediately met with Tonack and terminated Tonack‘s employment. Tоnack was 49 years old at that time.
The parties waived jury trial and the case was tried to the court. After hearing the evidence, the court concluded that Tonack was terminated from her employment in violation of both the Montana Wrongful Discharge From Employment Act (Wrongful Discharge Act),
I
Are certain findings of fact concerning the claim of violation of the Age Discrimination in Employment Act clearly erroneous?
The bank challenges eighteen of the District Court‘s findings of fact. Here, we address only those findings relating to the ADEA claim.
This Court will affirm findings of fact if they are not clearly erroneous; that is, if they are supported by substantial evidence, the trial court has not misapprehended the effect of the evidence, and this Court is not left with a definite and firm conviction that a mistake has been made. Interstate Production Credit v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287. The credibility and weight given evidence and witnesses by the trial court must be granted great weight on appeal. Morning Star Enterprises v. R.H. Grover (1991), 247 Mont. 105, 113, 805 P.2d 553, 558. It is the duty of the trial court,
The bank challеnges the findings that there were no reviews of Tonack‘s performance as FSR during her 30 days of probation and that her performance in that position was satisfactory. The record contains Kiedrowski‘s notes made following the meeting in which she placed Tonack on probation, but we do not consider those informal notes as a performance review. Tonack‘s last written performance evaluation of record was done by Kiedrowski in May 1990. That evaluation indicated that Tonack was performing “at standard” as FSR/CSR Supervisor. Tonack‘s exhibits establish that she received the bank‘s “MVP” award for outstanding sales efforts for the month of September 1990, supporting the finding that her performance as FSR was in fact above average.
The Bank claims there is no evidence to support the findings that Tonack was replaced by a substantially younger employee. A portion of Kiedrowski‘s deposition appended to a brief filed in District Court established that Rhonda Kreamer withdrew her resignation and assumed some of Tonack‘s duties after Tonack‘s employment was terminated. Tonack testified at trial that Kreamer “was a much younger person than I.”
The bank challenges several findings concerning statements of George Balback, the president of Montana Bаncsystem, the holding company for the bank. Gary Nichols, vice-president of the bank until August of 1990, testified about conversations he had with Balback between January and August of 1990. In those conversations, Balback expressed that he did not believe Tonack was right for her position because of her age and background. Although thе bank contends that there was no testimony that Balback said Tonack should be fired because of her age, Nichols’ testimony is clearly to that effect. Nichols testified that Balback stated that he had encouraged those responsible to make a change because he did not want Tonack in the FSR positiоn and that he felt Kiedrowski would “get it handled.”
The bank challenges the finding that Balback could influence hiring and firing. That finding is supported by Nichols’ testimony that Balback had the authority to prevent him from making Tonack teller supervisor.
We hold that substantial evidence supports the above findings and that the court did not misapprehend the еffect of the evidence. The findings do not leave us with the impression that a mistake has been made.
Did the District Court incorrectly interpret or misapply the provisions of the ADEA?
The bank claims that Tonack‘s ADEA case was fatally flawed in that Tonack did not establish the necessary element of pretext. It alleges that thе court incorrectly characterized certain evidence as “direct evidence” and challenges certain findings made by the District Court.
To establish a prima facie case of age discrimination under the ADEA, a plaintiff must either provide direct evidence of discrimination or produce evidence that 1) she was in the protected age group; 2) she was performing her job satisfactorily; 3) she was discharged; and 4) she was replaced by a substantially younger person. Rose v. Wells Fargo & Co. (9th Cir. 1990), 902 F.2d 1417, 1421. The burden then shifts to the defendant to articulate a nondiscriminatory reason for the discharge. Texas Dept. of Community Affairs v. Burdine (1981), 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207, 215. The burden then shifts back to the plaintiff to prove by a preрonderance of the evidence that the reasons articulated by the employer for termination are merely a pretext for discrimination. Burdine, 450 U.S. at 253, 101 S.Ct. at 1093.
Tonack uncontrovertedly established that she was in the protected age group and that she was discharged. Under Issue I, we have approved findings which establish that she was performing her job satisfactorily and that she was replaced by a substantially younger person. We conclude that Tonack presented a prima facie case that the bank violated the ADEA in terminating her employment.
The bank rebutted the presumption of discrimination through its evidence that Tonack was discharged for a legitimate reason, failure to correct deficiencies in the teller supervisor area and her inability to work with others.
Tonack provided evidence to disprove the legitimate explanation offered by the bank. Contrary to the bank‘s assertions, a court may rely on all evidence, including evidence used to establish a prima facie case, to establish pretext. Burdine, 450 U.S. at 256, n. 10, 101 S.Ct at 1095, n.10. Also contrary to the bank‘s assertions, a finder of fact may infer that age discrimination took place. Merrick v. Northern Natural Gas Co. (10th Cir. 1990), 911 F.2d 426, 429. Taken together, the evidence of Tonack‘s satisfactory performance reviews, the testimony about Balback‘s statеments that Tonack should go and that
We hоld that the District Court did not incorrectly interpret or misapply the provisions of the ADEA and that it did not err in ruling that Tonack established that the bank violated the ADEA in terminating her employment.
III
Did the District Court incorrectly interpret or misapply the provisions of the Wrongful Discharge Act?
The Wrongful Discharge Act provides, at
Except as provided in
39-2-912 , this part provides the exclusive remedy for a wrongful discharge from employment.
Section
This part does not apply to a discharge:
(1) that is subject to any other state or federal statute that provides a procedure or remedy for contesting the dispute. Such statutes include those ... that prohibit unlawful discrimination based on .... age.
The bank claims these statutes prohibit Tonack from recovering under both the ADEA and the Wrongful Dischаrge Act.
Tonack cites two Montana federal district court decisions in which it has been held that concurrent actions under the Wrongful Discharge Act and the ADEA are not prohibited when there are separate and distinct factual predicates to support each claim. Vance v. ANR Freight Systems, Inc. (D.Mont. 1991), 9 Mont. Fed. Rpts. 36, 39-40; Higgins v. Food Services of America, Inc. (D.Mont. 1991), 9 Mont. Fed. Rpts. 529, 530. We decline to completеly follow those decisions, exercising our prerogative as the ultimate authority on the interpretation of Montana statutes.
Section
Whether a discharge will ultimately be “subject to any other state or federal statute that provides a procedure or remedy for contesting the dispute” is not immediately known when a claim is filed. This must be determined before it is known whether the Wrongful Discharge Act may be applied. It is established only when a finder of fact has made that determination or when judgmеnt on the claim has otherwise been entered. Therefore, we conclude that claims may be filed concurrently under the Wrongful Discharge Act and other state or federal statutes described in
In this case, the Wrongful Discharge Act was no longer applicable following the District Court‘s factual determination that the ADEA applied to Tonack‘s discharge from employment. We therefore hold that Tonack is not entitled to recover damages under the Wrongful Discharge Act, and we reverse the District Court‘s conclusion on that issue.
Because of the above conclusions and holdings, we do not address the bank‘s issues concerning computation of damages or the findings of fact relevant to Tonack‘s claim under the Wrongful Discharge Act. We remand this case to the District Cоurt for recalculation of damages consistent with this Opinion.
JUSTICES GRAY, HUNT and HARRISON concur.
JUSTICE TRIEWEILER concurring in part and dissenting in part.
I concur with the majority‘s conclusions under Issues I and II that the District Court‘s findings were not clearly erroneous and that the District Court correctly applied the provisions of the Age Discrimination in Employment Act.
I dissent from that part of the mаjority opinion which holds that plaintiff cannot recover separately under Montana‘s Wrongful Dis-
The majority relies on
This part does not apply to a discharge:
(1) that is subject to any other state or federal statute that provides a procedure or remedy for contesting the dispute.
In this case, plaintiff alleged two separate and independent reasons why her termination from employment was unlawful. She alleged that she was terminated because of agе discrimination which was a violation of the Age Discrimination in Employment Act,
Under Montana law a discharge is wrongful if “the employer violated the express provisions of its own written personnel policy.” Section
I agree with the prior decisions of the Federal District Court for the District of Montana in Vance v. ANR Freight Systems, Inc. (D. Mont. 1990), Doc. No. CV-90-120-GF, 9 Mont. Fed. Rpts. 36, and Higgins v. Food Services of America, Inc. (D. Mont. 1991), Doc. No. CV-90-51-M-CCL, 9 Mont. Fed. Rpts. 529. In Vance, the Federal District Court held that:
[W]here a discharge from emplоyment may be violative of a state or federal law prescribing discrimination, the affected employee is not precluded from pursuing relief under the Montana Wrongful Discharge From Employment Act if the employee can sustain his
burden of proof in establishing the factual predicate necessary to establish а claim for relief under the Act. ....
... [W]here the factual predicate upon which the affected employee bases his claim under the Act is distinct from the factual predicate upon which the affected employee might otherwise base a claim under state or federal law prohibiting discrimination, he is not precluded from seeking redress under the Act.
Vance, 9 Mont. Fed. Rpts. at 39-40.
In Higgins, under facts similar to these, the Federal District Court recognized that a federal claim based on discrimination does not preclude a state claim under Montana‘s Wrongful Discharge From Employment Act for a violation of written personnel policies. Again, the rationalе was that each cause of action is based on a distinct and separate factual basis.
In this case, there was no federal or state statutory claim allowing recovery by the plaintiff for termination in violation of the employer‘s written personnel policies. Therefore,