NO. 93-443
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
GINA L. MORTON,
Plaintiff and Appellant,
v.
M-W-M, INC., a Montana corporation,
Defendant and Respondent.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable John M. McCarvel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
John F. Lynch, Lynch Law Firm, Great Falls, Montana
For Respondent:
Richard Dzivi and Tonja D. Schaff, Richard Dzivi,
P.C. , Great ,Falls, Montana
I
Submitted on Briefs: December 22, 1993
Decided: February 1, 1994
Filed: F- C&2i'HiiL
ELERKOFSUPREMECO~~
STATE OF MONTAiUA
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Plaintiff Gina L. Morton (Morton) appeals from a decision of
the Eighth Judicial District Court, Cascade County. The court
entered summary judgment in favor of the defendant, M-W-M, Inc. (M-
W-M), owner of Burger King Franchise No. 1666 in Great Falls,
Montana, after concluding that there were no disputed issues of
fact and that an agent at the company's franchise had good cause to
terminate Morton's employment as an assistant manager. We reverse
and remand.
The issues on appeal are rephrased as follows:
1. Whether the District Court erred by granting summary
judgment to M-W-M after concluding there were no disputed issues of
fact and concluding good cause existed for Morton's termination
from the Burger King franchise;
2. Whether Morton mitigated any damages allegedly due her by
working full-time at another job after her termination from Burger
King.
Morton began employment with M-W-M's franchise, Burger King
No. 1666, in Great Falls during September 1989. She worked her way
up through the ranks in less than a year, earning an assistant
manager position on May 18, 1990. Her written performance
evaluations at Burger King were mostly exceptional with no less-
than-satisfactory work traits mentioned. Her position at Burger
King was part-time, and the unofficial policy there offered Morton
a very flexible work schedule dependent in part on her husband's
work schedule and the child-care needs of their family.
As a matter of unwritten policy, the general manager of Burger
King No. 1666, Matt Blazicevich (Blazicevich), voluntarily agreed
to schedule Morton for work according to her scheduling requests.
Morton was the sole part-time assistant manager.
Vacation time offered by Burger King came in one of two forms:
paid leave or unpaidtime off. Frequently, employees would request
unpaid time off by leaving a note with Blazicevich. He often would
then voluntarily refrain from scheduling the employee according to
the employee's request.
During April of 1992, Morton requested vacation time;
Blazicevich responded that if Morton were to wait until May, she
would be eligible for two weeks vacation. Paid leave vacation for
managers at Burger King was offered at two weeks for two years of
service, and Morton was nearing the second anniversary of the date
she was promoted to assistant manager. On April 20, then, Morton
left a note with Blazicevich requesting the first two weeks of May
1992, off for the purpose of attending to her family's needs while
her husband was in job training. Her note further requested that
she work the following shifts during May: Tuesday and Wednesday,
the 19th and 20th; and Saturday and Sunday, the 30th and 31st.
Blazicevich scheduled her accordingly. On the same day, April 20,
1992, Morton filled out an application to work a second job at the
Black Angus restaurant.
3
Historically the Burger King franchise permitted moonlighting
as long as the second job did not conflict with the Burger King
work schedule and as long as the second job did not involve a
Burger King competitor. Near the end of April 1992, Blazicevich
learned from a neighbor that one of his Burger King employees was
moonlighting at the Black Angus restaurant in Great Falls.
Blazicevich went to the Black Angus on May 4, 1992; he saw Morton
working. On the next day, when Morton went into Burger King to
pick up her paycheck, Blazicevich terminated her employment without
explanation. She initiated wrongful discharge proceedings.
M-W-M moved the court for summary judgment, stating that the
following discrepancies enabled Blazicevichto terminate Morton for
good cause: she did not make herself available for part-time work,
she was working for a competitor of Burger King, and she was
dishonest. M-W-M also alleged that Morton suffered no damages as
a result of her termination from employment, because she was
employed at the Black Angus.
Morton stated that she followed Burger King policy when
requesting and obtaining her vacation and that she originally
requested vacation time to attend to her family's needs while her
husband was in training. After obtaining the vacation time, she
found a babysitter for her children and interviewed for the Black
Angus job on April 30. She got the job and started work there on
May lst, 1992. Additionally, Morton contended that the Black Angus
restaurant is not a competitor of Burger King.
4
The District Court granted summary judgment to M-W-M. Morton
appeals.
ISSUE 1
Did the District Court err by granting summary judgment to M-
W-M after concluding there were no disputed issues of fact and
concluding good cause existed for Morton's termination from
employment?
Our standard of review when considering an appeal from a
summary judgment decision is the same as that whicn was faced by
the district court under Rule 56, M.R.Civ.P. Minnie v. City of
Roundup (1993), 257 Mont. 429, 431, 849 P.2d 212, 214. Summary
judgment is proper when there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law.
Rule 56, M.R.Civ.P. Summary judgment is never a substitute for a
trial on the merits. Krieg v. Massey (1989), 239 Mont. 469, 471,
781 P.2d 277, 278.
The party seeking summary judgment bears the burden to show
the court that it has met the standards set forth in Rule 56,
M.R.Civ.P. DtAgostinov. Swanson (1990), 240 Mont. 435, 442, 784
P.2d 919, 924. The court must review both the pleadings and the
record before it in making its decision. D8Agnostino v. Schapp
(1988), 230 Mont. 59, 748 P.2d 466, citing Rule 56(c), M.R.Civ.P.
When examining the record, any factual inferences which can be
drawn must be resolved in favor of the nonmoving party. &&g, 781
P.2d at 278; Cereck v. Albertsons, Inc. (1981), 195 Mont. 409, 637
P.2d 509.
If the moving party has met its burden of proof, the nonmoving
party has the burden of showing that a genuine issue of material
fact exists or that the moving party is not entitled to judgment as
a matter of law. m, 781 P.2d at 278; Rumph v. Dale Edwards,
Inc. (1979), 183 Mont. 359, 600 P.2d 163. The nonmoving party may
not rely solely on the allegations stated in its pleadings. Drug
Fair Northwest v. Hooper Enterprises, Inc. (1987), 226 Mont. 31,
33, 733 P.2d 1285, 1287. Instead, when raising the allegation that
disputed issues of fact exist, the nonmoving party has an affirma-
tive duty to respond by affidavits or other sworn testimony
containing material facts that raise genuine issues; conclusory or
speculative statements will not suffice. Barich v. Ottenstror
(1976), 170 Mont. 38, 42, 550 P.2d 395, 397.
The summary judgment in the instant case is based on the lower
court's findings of fact and conclusion that there were no disputed
issues of fact. These findings and conclusion are not supported by
the record. In order to articulate the disputed issues, we first
examine the law surrounding Morton's wrongful discharge claim.
Under the Wrongful Discharge from Employment Act a valid
ground for maintaining a cause of action against a former employer
is when the employee's "discharge was not for good cause and the
employee had completed the employer's probationary period of
employment. It Section 39-2-904 (2), MCA. The act defines good cause
6
as 'Ireasonable job related grounds for dismissal based on a failure
to satisfactorily perform job duties, disruption of the employer's
operation, or other legitimate business reasons." Section 39-2-
903(5), MCA. Deposition testimony by Blazicevich and Morton
establishes that Morton was not terminated for unsatisfactory
performance and that she had passed her probationary period of
employment. The issue, therefore, is whether Morton's termination
was justified by a legitimate business reason.
This Court has previously defined legitimate business reason
as "a reason that is neither false, whimsical, arbitrary or capri-
cious, and it must have some logical relationship to the needs of
the business." Kestell v. Heritage Health Care Corp. (Mont. 1993),
858 P.2d 3, 7, 50 St.Rep. 919, 922, citing Buck v. Billings Montana
Chevrolet, Inc. (1991), 248 Mont. 276, 281-82, 811 P.2d 537, 540.
As we stated in Kestell, 858 P.2d at 7-8:
It is well settled in our pre-[wrongful discharge1Act
cases that courts should not intrude in the day-to-day
employment decisions of business owners. . . . An
employer's legitimate right to exercise discretion over
whom it will employ must be balanced, however, against
the employee's equally legitimate right to secure employ-
ment. ... The balance should favor an employee who
presents evidence, and not mere speculation or denial,
upon which a jury could determine that the reasons given
for his termination were false, arbitrary or capricious,
and unrelated to the needs of the business. [Citations
omitted].
When considering M-W-M's motion for summary judgment, the
court first entertained M-W-M's assertion that no disputed issues
of fact existed. The court specifically asked counsel for Morton
whether any disputes of fact were involved in this case; Morton's
counsel replied that there were none.
That reply was erroneous. The record before us is brief,
consisting of various court filings and certain pieces of discovery
including two depositions, one from Blazicevich and one from
Morton. After reviewing the record, we conclude that contrary to
the District Court's findings, material issues of fact exist,
including whether Morton's vacation request was made according to
Burger King policy; whether the Black Angus is a competitor of
Burger King: and whether Morton misled her employer to obtain
vacation time to work at a second job. The District Court's
findings of fact relating to the above disputed issues are not
supported by the record and are, therefore, clearly erroneous. See
Interstate Prod. Credit Assln v, IleSaye (1991), 250 Mont. 320, 820
P.2d 1285.
Where the record shows genuine issues of fact and the parties
relate widely divergent reasons for Mortonrs termination, the trier
of fact must resolve those issues and determine whether Morton was
fired for good cause. See Dare v. Montana Petroleum ~arketingCo.
(19841, 212 Mont. 274, 282, 687 P.2d 1015, 1019. Here, each party
argues the above disputed facts in each respective brief. We
conclude that in this record there are material fact issues that
cannot be disposed of by summary judgment and this issue is
remanded for proceedings consistent with this opinion.
ISSUE 2
Did Morton mitigate any damages allegedly due her by working
full-time at a restaurant after her termination from Burger King?
In its conclusions of law the District Court states:
Plaintiff mitigated any damages she may have been
entitled to if this Court would have found a wrongful
discharge. Plaintiff is a full-time employee at the
Black Angus Restaurant, earning more than she earned at
Burger King No. 1666. Accordingly, even if Plaintiff was
wrongfully discharged, she suffered no damages, rendering
Defendant, M-W-M Inc., entitled to summary judgment.
The court failed to note, however, that Morton's second job at the
Black Angus was presumably compatible in hours to the requirements
of her first, part-time job at Burger King. We hold that the
court's finding was clearly erroneous because Morton could have
worked both jobs concurrently and the loss of earnings she suffered
as a result of termination from Burger King are necessarily part of
her wrongful discharge claim. On remand, the issue of mitigation
of damages for appellant's loss of employment at M-W-M remains to
be resolved.
Reversed and remanded.
a\ Chief Justice
We concur:
February 1, 1994
CERTIFICATE OF SERVICE
1 hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
JOHN F. LYNCH
Lynch Law Firm
P.O. Box 2265
Great Falls, MT 59403
Richard Dzivi
Tonja D. Schaff
RICHARD D Z M , P.C.
P.O. Box 1291
Great Falls, MT 59403-1291
ED SMITH
CLERK OF THE SUPREME COURT
S T A F OF MONTANA