No. 01-136
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 93
TONY CASIANO,
Plaintiff/Respondent/Cross-Appellant,
v.
GREENWAY ENTERPRISES, INC.,
Defendant/Appellant/Cross-Respondent.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Jeffrey Sherlock, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Palmer A. Hoovestal, Hoovestal & Kakuk, PLLC, Helena, Montana
For Respondent:
Candace Payne, Gary Davis, Luxan & Murfitt, PLLP, Helena, Montana
Submitted on Briefs: September 27, 2001
Decided: May 9, 2002
Filed:
__________________________________________
Clerk
Justice Jim Regnier delivered the Opinion of the Court.
¶1 Greenway Enterprises, Inc. (“Greenway”) appeals from the
rulings made by the First Judicial District Court, Lewis and Clark
County, denying its: 1) third motion for summary judgment, 2)
motion to discharge the jury, and 3) motion for judgment as a
matter of law, or alternatively, for a new trial. We affirm.
¶2 The following issues are presented on appeal:
¶3 1. Did the District Court err in denying Greenway’s third
motion for summary judgment?
¶4 2. Did the District Court err in denying Greenway’s motion to
discharge the jury?
¶5 3. Did the District Court err in denying Greenway’s motion
for judgment as a matter of law, or alternatively, for a new trial?
FACTUAL AND PROCEDURAL BACKGROUND
¶6 Greenway is a Montana corporation located in Helena, Montana.
Tony Casiano (“Casiano”) was hired by Greenway as a construction
laborer in October 1997. On April 27, 1998, Casiano completed
Greenway’s six month probationary period. During Casiano’s
employment at Greenway, he worked on several projects, including
the construction of a surgical center next to St. Peter’s Hospital
in Helena (“the Surgi-Center project”).
¶7 On July 17, 1998, while working at the Surgi-Center project,
Casiano was discharged from his employment by his supervisor, John
Ellermeyer, for alleged insubordination. That same day, Jon
Hoovestal, Vice President of Greenway, informed Casiano of
Greenway’s written internal grievance procedures. Greenway did not
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provide Casiano a written copy of its grievance procedures after
his discharge.
¶8 On April 7, 1999, Casiano filed a complaint against Greenway
under the Montana Wrongful Discharge Act alleging that: 1) his
discharge was in retaliation for filing a worker’s compensation
claim in violation of § 39-71-317(1), MCA; 2) his discharge was
not for good cause in violation of § 39-2-904(2), MCA; and 3) his
discharge was in retaliation for refusing to violate public policy
in violation of § 39-2-904(1), MCA.
¶9 On August 1, 2000, Greenway filed a third motion for summary
judgment alleging Casiano’s action was barred by § 39-2-911(2),
MCA, since he failed to first exhaust Greenway’s internal grievance
procedures prior to filing his action in the District Court.
Relying on our holding in Eadus v. Wheatland Memorial Hospital
(1996), 279 Mont. 216, 926 P.2d 752, the District Court entered an
order denying Greenway’s motion on September 12, 2000. The court
determined that Casiano’s action was not barred by § 39-2-911, MCA,
as Greenway did not provide Casiano a written copy of its internal
grievance procedures within seven days after his discharge in
compliance with § 39-2-911(3), MCA.
¶10 A jury trial commenced on October 16, 2000. After the jury
was selected, sworn, and the venire were excused, Greenway’s
counsel moved to discharge the jury pursuant to Batson v. Kentucky
(1986), 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69. Greenway
alleged Casiano’s counsel impermissibly exercised a peremptory
challenge against a prospective juror based upon the prospective
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juror’s social condition as a Helena business owner. Additionally,
Greenway requested that Casiano’s counsel state why a peremptory
challenge was exercised against the prospective juror. The
District Court denied Greenway’s motion and did not require
Casiano’s counsel to state the reason employed in exercising a
peremptory challenge against the prospective juror.
¶11 On October 19, 2000, the jury returned a special verdict
finding that Casiano was not discharged in retaliation for filing a
worker’s compensation claim. The jury further found that Casiano
was not discharged for good cause because Greenway violated the
express provisions of its written personnel policy. The jury
awarded Casiano damages in the amount $40,908.00.
¶12 On October 26, 2000, Greenway filed a motion for judgment as a
matter of law, or alternatively, for a new trial claiming there was
insufficient evidence to support the jury’s damage award of
$40,908.00. On November 16, 2000, the District Court denied
Greenway’s motion finding there was not a complete absence of
credible evidence to support the jury’s verdict. On the same day,
the District Court entered judgment in the amount of $43,777.33
against Greenway. Greenway appeals.
STANDARD OF REVIEW
¶13 Our review of a district court’s grant or denial of a motion
for summary judgment is de novo. See Eadus v. Wheatland Memorial
Hospital & Nursing Home (1996), 279 Mont. 216, 219, 926 P.2d 752,
754 (citation omitted). Therefore, we apply the same Rule 56,
M.R.Civ.P., criteria as applied by the district court. See Bruner
4
v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901,
903. Pursuant to Rule 56, M.R.Civ.P.:
The movant must demonstrate that no genuine issues of material
fact exist.
Once this has been accomplished, the burden then shifts to the
non-moving
party to prove, by more than mere denial and speculation, that
a genuine
issue does exist. Having determined that genuine issues of
fact do not
exist, the court must then determine whether the moving party
is entitled to
judgment as a matter of law. We review the legal
determinations made by
a district court as to whether the court erred.
Bruner, 272 Mont. at 264, 900 P.2d at 903 (citations omitted).
¶14 In reviewing a district court’s denial of a motion to
discharge the jury based upon a Batson challenge, we will defer to
the district court’s findings of fact unless clearly erroneous, and
will review the district court’s application of the law de novo.
See State v. Ford, 2001 MT 230, ¶ 7, 306 Mont. 517, ¶ 7, 39 P.3d
108, ¶ 7 (citations omitted).
¶15 We will not reverse a district court’s denial of a motion for
judgment as a matter of law unless there is a complete absence of
credible evidence to support the jury’s verdict. See Kneeland v.
Luzenac America, Inc., 1998 MT 136, ¶ 53, 289 Mont. 201, ¶ 53, 961
P.2d 725, ¶ 53 (citations omitted). In reviewing the evidence, we
view the evidence in the light most favorable to the prevailing
party. See Kneeland, ¶ 51 (citations omitted).
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¶16 We review a district court’s denial of a motion for a new
trial for an abuse of discretion. Kneeland, ¶ 54 (citation
omitted).
DISCUSSION
ISSUE ONE
¶17 Did the District Court err in denying Greenway’s third motion
for summary judgment?
¶18 Greenway contends Casiano’s wrongful discharge action is
precluded by § 39-2-911(2), MCA, because Casiano failed to exhaust
its internal grievance procedures prior to filing his action in the
District Court. Additionally, Greenway asserts the requirements of
§ 39-2-911(3), MCA, were satisfied since it provided Casiano a
written copy of its grievance procedures during his employment, and
Jon Hoovestal, Vice President of Greenway, expressly told Casiano
about its internal grievance procedures and how to facilitate such
procedures on the day of his discharge. Greenway alleges that
although it did not provide Casiano a written copy of its grievance
procedures within seven days of his discharge, Hoovestal’s oral
explanation equates to supplying a copy of its grievance procedures
to Casiano in compliance with § 39-2-911(3), MCA. Greenway further
claims the facts presented in Eadus are distinguishable from the
facts in this case, as there was no evidence in Eadus that the
employer’s grievance procedure was orally explained to the
employee.
¶19 Casiano responds that Greenway’s failure to provide him a
written copy of its internal grievance procedures within seven days
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of his discharge, as required by § 39-2-911(3), MCA, precludes
Greenway from availing itself of the defense set forth in § 39-2-
911(2), MCA, pursuant to our decision in Eadus. Casiano points out
that the facts presented in Eadus are analogous to the facts
presented in the case at hand. Most notably, the employee in
Eadus, as here, was provided a written copy of the employer’s
internal grievance procedures during her employment, but was not
provided another copy within seven days of her discharge. Further,
the employer in Eadus, as here, notified the employee of its
written internal grievance procedures on the day of her discharge.
Casiano therefore contends we should affirm the District Court’s
denial of Greenway’s third motion for summary judgment. We agree.
¶20 Section 39-2-911(3), MCA, states:
If the employer maintains written internal procedures under
which an
employee may appeal a discharge within the organizational
structure
of the employer, the employer shall within 7 days of the date
of the
discharge notify the discharged employee of the existence of
such
procedures and shall supply the discharged employee with a
copy of
them. If the employer fails to comply with this subsection,
the
discharged employee need not comply with subsection (2).
[Emphasis added.]
¶21 We held in Eadus that the plain language of § 39-2-911(3),
MCA, precludes an employer from availing itself of the defense set
forth in § 39-2-911(2), MCA, if the employer fails both to notify
the discharged employee of its internal grievance procedures and to
provide the employee a written copy of its internal grievance
procedures within seven days of the employee’s discharge. See
7
Eadus, 279 Mont. at 222, 926 P.2d at 756. Here, it is undisputed
that Greenway notified Casiano of its internal grievance procedures
on the day of his discharge, but failed to provide him a written
copy of the procedures within seven days of his discharge.
Consequently, we conclude that Greenway did not comply with § 39-2-
911(3), MCA, and thus Casiano was not required to comply with § 39-
2-911(2), MCA, prior to filing his action. Accordingly, we hold
that the District Court did not err in denying Greenway’s motion
for summary judgment.
ISSUE TWO
¶22 Did the District Court err in denying Greenway’s motion to
discharge the jury?
¶23 Relying upon Batson v. Kentucky (1986), 476 U.S. 79, 106 S.Ct.
1712, 90 L.Ed.2d 69, Greenway contends its constitutional right to
equal protection of the law, guaranteed by Article II, § 4, of the
Montana Constitution, was denied when Casiano’s counsel exercised a
peremptory challenge against a prospective juror based upon the
prospective juror’s social condition as a Helena business owner.
Greenway additionally alleges the District Court committed
reversible error when it failed to require Casiano’s counsel to
provide reasons why it exercised a peremptory challenge against the
prospective juror.
¶24 Casiano asserts a peremptory challenge may be exercised
without having to explain the reason behind its utilization.
Moreover, Casiano points out that Batson and its progeny involve
discrimination of members of a cognizable racial group or a suspect
8
class in the jury selection process. Casiano thus claims that a
Batson challenge is not applicable in the case at hand since the
prospective juror excused in this case is not a member of a
cognizable racial group or suspect class.
¶25 The issue of discrimination based on social condition in jury
selection is a matter of first impression for this Court. The
United States Supreme Court has held that the Equal Protection
Clause of the United States Constitution forbids the State in
criminal cases from utilizing peremptory challenges to remove
potential jurors based solely on their race. Batson, 476 U.S. at
89, 106 S.Ct. at 1719. The Court has expanded the scope of Batson
to forbid defendants in criminal cases and litigants in civil cases
from utilizing peremptory challenges to exclude prospective jurors
based on race. See Georgia v. McCollum (1992), 505 U.S. 42, 112
S.Ct. 2348, 120 L.Ed.2d 33; and Edmonson v. Leesville Concrete Co.
(1991), 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660. The Court
further broadened the application of Batson to preclude the use of
peremptory challenges to exclude jurors based upon their gender in
J.E.B. v. Alabama ex rel. T.B. (1994), 511 U.S. 127, 114 S.Ct.
1419, 128 L.Ed.2d 89.
¶26 We have held that “[w]hile defendants have a right ‘to be
tried by a jury whose members are selected pursuant to
nondiscriminatory criteria,’ Batson, 476 U.S. at 85-86, 106 S.Ct.
at 1717, this right must be exercised in a timely manner.” State
v. Ford, 2001 MT 230, ¶ 21, 306 Mont. 517, ¶ 21, 39 P.3d 108, ¶ 21
(citation omitted). Accordingly, we must address whether
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Greenway’s Batson challenge was timely made before we address the
merits of its challenge.
¶27 We determined in Ford that a Batson challenge must be made
prior to the impanelment of the jury and the dismissal of the
venire to be timely. Ford, ¶ 28. In determining the point in the
proceedings when a Batson challenge should timely be made, we noted
that:
If we allow a Batson challenge to be raised after the jury is
impaneled and
sworn and the venire dismissed, we not only impair the ability
of the
challenged attorney to effectively defend his or her strikes,
but we also
deprive the district court of the ability to correct any error
in the proceedings
in a timely fashion. While we have not previously addressed
the Batson
challenge explicitly, the concept of requiring a substantive
challenge to
be brought while the district court still has the opportunity
to cure the
alleged defect is not novel. We have consistently held that
the purpose of
a timely objection is to give a district judge the first
opportunity to correct
any error.
Ford, ¶ 27 (citations omitted).
¶28 Here, Greenway’s counsel moved to discharge the jury based
upon Batson and its progeny after the jury was selected, sworn, and
the venire excused. We note that neither counsel in this case nor
the District Court had the benefit of our Ford decision at the time
of trial. However, our decision in Ford controls. Therefore, we
conclude that Greenway’s Batson challenge was untimely. Hence, we
will not address the merits of Greenway’s Batson challenge.
10
Accordingly, we affirm the District Court’s denial of Greenway’s
motion to discharge the jury.
ISSUE THREE
¶29 Did the District Court err in denying Greenway’s motion for
judgment as a matter of law, or alternatively, for a new trial?
¶30 Greenway points out that the jury’s damage award of $40,908.00
was based on the assumption that Casiano would have remained
employed with the company for four years had he not been wrongfully
discharged from his employment. Greenway alleges, however, the
evidence presented at trial was uncontroverted that Casiano would
have been laid off due to lack of work on November 31,1998, when
the Surgi-Center project was completed, as were all hourly
employees. Greenway therefore maintains the jury award should be
reduced to $8,018.00, the amount of money Casiano would have earned
at his hourly wage from the date of his discharge through November
31, 1998.
¶31 Casiano claims contradictory evidence was presented at trial
regarding whether he would have continued to work for Greenway
after the Surgi-Center project was completed. Notably, Casiano
points out that Greenway continued his employment in the winter of
1997-1998 although there was not a construction project, and thus
the jury could have made a reasonable inference from this evidence
that Greenway would have continued his employment after completion
of the Surgi-Center project. Casiano therefore contends there was
not a complete absence of credible evidence to support the jury’s
verdict. We agree.
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¶32 Further, we agree with the rationale stated by the District
Court in denying Greenway’s motion. In its November 16, 2000,
Order, the District Court stated:
In looking at the evidence, the Court would acknowledge that
if it was the
trier of fact, it would have to agree with Defendant’s
argument. However,
the Court cannot say that there is a complete absence of
credible evidence to
support the jury’s verdict. The jury was in a position to
judge the credibility
of Defendant’s witnesses and must have believed that Casiano
would have
continued to work for Greenway as did John Ellermeyer.
Although this Court
might disagree with the jury’s conclusion in this regard, it
cannot say that there
is a complete lack of credible evidence to support the
verdict.
¶33 Since reasonable inferences could have been made from the
evidence that Greenway would have continued Casiano’s employment
after the completion of the Surgi-Center project, we conclude there
was not a complete absence of evidence to support the jury’s
verdict. Accordingly, we affirm the District Court’s denial of
Greenway’s motion for judgment as a matter of law, or
alternatively, for a new trial.
¶34 We note in passing that Casiano requests the imposition of
sanctions against Greenway on the grounds that Greenway’s appeal
was taken without substantial or reasonable grounds, pursuant to
Rule 32, M.R.App.P. After reviewing the record and the arguments
made by Greenway, we conclude that sanctions are not appropriate in
this case.
¶35 Affirmed.
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/S/ JIM REGNIER
We Concur:
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ JIM RICE
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