No. 92-343
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
BETTY L. TONACK,
Plaintiff and Respondent,
-v-
MONTANA BANK OF BILLINGS,
Defendant and Appellant.
APPEAL FROM: District Court of the ~hirteenth3udiciaI District,
In and for the County of Yellowstone,
The Honorable Russell K. Fillner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Jeanne M. Bender, Michael 3 . Anderson,
Holland & Hart, Billings, Montana
For Respondent:
A. Clifford Edwards, ~ e v i nM. Funyak,
Edwards Law Fim, Billings, Montana
Submitted on Briefs: January 14, 1993
Decided: M ~ Y1 3 , 1993
Filed:
~usticeR. C. KcDonough 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 Betty 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 d i s p o s i t i v e 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
2981. When she began working there, Tonack held a teller position.
She was promoted to teller supervisor. In October 1988, she took
a job with t h e Montana Bank of Billings, with which the bank in
Sidney was affiliated. When she moved to ~illings,she became the
bank's Financial Services Representative (FSR).
In January of 1990, Tonackfs performance as an FSR was
evaluated as fully satisfactory; %ore toward the excellent s i d e . l l
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 vacation. When she placed Tonack on
probation, Kiedrowski also relieved her of all duties other than
her FSR duties.
While she was still on probation, Tonack 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. Tonack 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), §§
39-2-901 to 914, MCA, and the federal Age Discrimination in
Employment Act (ADEA), 29 U.S.C. $ 3 621-634. It awarded Tonack
damages under the Wrongful Discharge Act for four years of future
lost wages and benefits. In addition, t h e court awarded damages
under the ADEA , calculating those damages from the last date of
damages awarded under the Wrongful isc charge Act to Tonackvs
expected date of retirement.
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. ~orningStar
Enterprises v. R.H. Grover (lggl), 247 Mont. 205, 113, 805 P.2d
553, 558. It is the duty of the trial court, not this Court, to
resolve conflicts in the evidence. Wood v. Ulmer's Car and Truck
(1989), 236 Mont. 353, 359, 769 P,2d 1264, 1268.
The bank challenges the findings that there were no reviews of
Tonackls performance as FSR during her 30 days of probation and
that her performance in that position was satisfactory. The record
contains Kiedrowskifsnotes made following the meeting in which she
placed Tonack on probation, but w e do not consider those informal
notes as a performance review. Tonacktslast 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. Tonacklsexhibits establish that she received
the bank's flMVP1t
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 Kiedrowskils deposition appended to a brief filed in
District Court established that Rhonda Kreamer withdrew her
resignation and assumed some of Tonackls duties after Tonackls
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 Bancsystem, 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 expressedthathe did not believe Tonack was
right for her position because of her age and background. Although
the bank contends that there was no testimony that Balback said
Tonack should be fired because of her age, Nicholst 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 position and that he felt Kiedrowski
would Itget it handled. "
The bank challenges the finding that Balback could influence
hiring and firing. That finding is supported by Nichols1 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 effect of the evidence.
The findings do not leave us with the impression that a mistake has
been made.
I1
Did the District Court incorrectly interpret or misapply the
provisions of the ADEA?
The bank claims that TonacklsADEA case was fatally flawed in
that Tonack did not establish the necessary element of pretext. It
alleges that the court incorrectly characterized certain evidence
as Itdirect 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. ~urdine(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 preponderance of the evidence that the
reasons articulated by the employer for termination are merely a
pretext for discrimination, Burdine, 450 U.S. at 253.
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. 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 Tonackfs
satisfactory p e r f o m a n ~ ereviews, the testimony about Balbackts
statements that Tonack should go and that ~iedrowskiwould "get the
job done," the erroneous basis for placing Tonack on probation, the
ordering of business cards showing Xreamer's position as FSR, and
the circumstances of Tonack's termination indicate that the
articulated reason for discharge was a pretext.
We hold 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.
Did the District Court incorrectly interpret or misapply the
provisions of the Wrongful Discharge Act?
The Wrongful Discharge Act provides, at g 39-2-902, MCA:
Except as provided in 39-2-912, this part provides the
exclusive remedy for a wrongful discharge from
employment.
Section 39-2-912, MCA, states:
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 Discharge 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.
lggl), 9 Mont. Fed. Rpts. 529, 530. We decline to completely
follow those d e c i s i o n s , exercising our prerogative as the ultimate
authority on the interpretation of Montana statutes.
Section 39-2-912, MCA, provides that the Wrongful Discharge
Act does not apply to "a discharge" subject to other statutes. It
does not provide that the Act applies to all factual claims not
covered by other statutes. Tonacklsclaims under both the ADEA and
the Wrongful Discharge Act relate to one discharge from employment
at the bank. We conclude that Tonack may not recover under both
the ADEA and the Wrongful Discharge Act.
In Deeds v . Decker Coal Co, (lggo), 246 Mont. 220, 805 P.2d
1270, this Court held that the above statutory provisions did not
prohibit a wrongful discharge action by union employees because the
National Labor Relations Board had not yet filed a complaint
against the discharged employees. If the NLRB filed such an
action, the Court stated, a "procedure or remedy for contesting the
dispute*' would be set in motion and the statutory exemption of 5
39-2-912, MCA, would apply. Deeds, 805 P.2d at 1271.
Whether a discharge will ultimately be "subject to any other
state or federal statute that provides a procedure or remedy for
contesting the disputeq*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 judgment on
the c l a i m 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 5 39-2-912, MCA,
but if an affirmative determination of the claim is obtained under
such other statutes, the Wrongful Discharge Act may no longer be
applied. To the extent that this conclusion modifies our holding
in Deeds, that opinion is so modified.
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 Court for
recalculation of damages consistent with this Opinion.
We Concur:
Justices
10
Justice Terry N. Trieweiler concurring in part and dissenting in
part.
I concur with the majority's conclusions under Issues I and I1
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 majority opinion which holds
that plaintiff cannot recover separately under Montana's Wrongful
Discharge From Employment Act and the Federal Age Discrimination in
Employment Act, even though the factual basis for recovery under
each Act is separate and distinct.
The majority relies on 5 39-2-912, MCA, of Montana's Wrongful
Discharge From Employment Act which provides:
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 age discrimination which
was a violation of the Age Discrimination in Employment Act,
29 U.S.C. 5 5 621 through 634. However, she also alleged that she
was terminated in violation of her employer's own written
supervisor's manual which included the company policies regarding
termination. That policy required oral warnings, a written
reprimand, and supervised probation. The District Court, in its
Finding of Fact No. 36, specifically found that "[dlefendant Bank's
termination of Ms. Tonack was also in violation of its written
personnel policy set forth within the lsupervisor's manual.Ilq
Under Montana law a discharge is wrongful if "the employer
violated the express provisions of its own written personnel
policy. Section 39-2-904 ( 3 ) , MCA. However, there is no other
state or federal statute that has been brought to this Court's
attention which provides a procedure or remedy for termination that
is wrongful on that basis. The plaintiff1 claim under federal law
s
was based on termination because of her age. Therefore, I would
conclude that 5 39-2-912, MCA, does not apply and did not bar the
District Court's entry of judgment under both the Federal Age
~iscrimination in Employment Act, and the Montana Wrongful
Discharge from Employment Act.
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 Hi&m v
.
Food Services of America, h c . (D. Mont . 1991), Doc. No. CV-90-51-M-CCL,
9 Mont. Fed. Rpts. 529. In Vance, the Federal District Court held
that:
[Wlhere a discharge from employment 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
establishingthe factual predicate necessaryto establish
a claim for relief under the Act,
.. . [Wlhere 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 Higins, 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 rationale 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, 5 39-2-912,
MCA, did not apply. For these reasons, I dissent from that part of
the majority opinion which holds otherwise. I would affirm the
District Court judgment in its entirety.
May 13, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
Jeanne M. Bender
Michael B. Anderson
HOLLAND & HART
175 North 27th Street, Suite 1400
BiUings, MT 59101
k Clifford Edwards
Kevin M. Funyak
EDWARDS & PAOLI
P.O. Box 20039
Biings, MT 59104-0039
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA