Clark v. Eagle Systems, Inc.

                                  NO.     96-032
              IN THE SUPREMECOURT OF THE STATE OF MONTANA
                                        1996


320~~s ARTHUR (ART) CLARK,
              Plaintiff,     Appellant  and
                      Cross-Respondent,
         v.                                                      li.;/   ++Jlj,tii!i
                                                         ~:~~~~~~~~~~~~~~~~~~
EAGLE SYSTEMS, INC.; JOHN T. ACKERMAN;
RICHARD B. SCHWEITZER; and RANDAL M. SUNDQUIST,
              Defendants,   Respondents       and
                    Cross-Appellants.



APPEAL FROM:        District  Court of the Thirteenth Judicial District,
                    In and for the County of Yellowstone,
                    The Honorable G. Todd Baugh, Judge presiding.


COUNSEL OF RECORD:
              For Appellant:
                    K. D. Peterson;   Peterson      & Schofield,
                    Billings,  Montana.

              For Respondents:
                    Steven J. Lehman; Crowley,        Haughey, Hanson,
                    Toole & Dietrich, Billings,        Montana




                                        Submitted   on Briefs:             July        25, 1996
                                                      Decided:            November 20, 1996
Filed:
Justice        W. William           Leaphart            delivered               the Opinion        of the Court.

        Thomas Arthur                   Clark         (Clark)         appeals            from    the   order        of    the
Thirteenth          Judicial            District             Court,        Yellowstone            County,       granting
Eagle Systems'              (Eagle)        motion         for summary judgment,                     concluding           that
the Wrongful           Discharge            From Employment                      Act      (the Act)        applied        and
that      Clark     was terminated                     for      good cause,               that     Clark      failed        to
state       a prima       facie     case under the Age Discrimination                                  in Employment
Act,    that      Clark     could not prevail                    on his tortious                 interference            with
contracts          claim,         and that              the     Act        is     the     exclusive         remedy        and
precludes         Clark's         claim         for     negligent           or intentional             infliction          of
emotional         distress.              Eagle cross-appeals                      from the District              Court's
conclusion          that          the     Act         applies         to        Clark's         demotion       absent           a
cessation          in employment.                     We affirm.
        We address            the following                   issues        on appeal:
      1.   Did the District    Court  err  in concluding   that  the
Wrongful Discharge from Employment Act applies to demotions that do
not result  in a cessation  of employment?
       2.    Did the District Court err in granting    Eagle's motion                                                     for
summary judgment on the issue of Clark's           claim under the                                                        Age
Discrimination     in Employment Act?
       3.        Did the District     Court err in granting     summary judgment
in favor        of the individually-named      defendants    on Clark's      claim of
tortious        interference    and negligent    or intentional     infliction     of
emotional        distress?
        Clark       was employed                  with        Eagle         as     the     terminal         manager         in
Billings,          Montana.               Eagle          contracted               with      Burlington          Northern
Railroad          (BN) to provide               ramp, drayage,                  and mechanical             services       for
BN at the Billings                 terminal.              In addition,              Eagle is responsible                  for
loading        and unloading               trains         in a timely              manner.
        Clark      had been employed in the transportation                                         field     since       1955

                                                                2
and had served              in a variety                of positions              for    previous           contractors
providing         services             to the railroad.                   Clark         was hired           by Eagle          in
May of 1985 and continued                          to serve        as terminal             manager in Billings
until      November              21,     1991.           On that           date,         Clark      met          with     Dick
Schweitzer           (Schweitzer),              who was Clark's              supervisor,                and Schweitzer
notified        Clark       that        he was being           replaced           the next         day as terminal
manager and was being                      demoted to the position                             of utility           person.
Eagle maintains              that        Clark      was difficult             to work with                and verbally
abusive         to    both         customers             and       co-workers.                   Randal          Sundquist
(Sundquist),              who was Clark's                  subordinate             and worked              as shop and
maintenance           supervisor,               reported        his       problems         with      Clark         directly
to Schweitzer             in the months before                     Clark's        demotion.              Several         other
employees            at      the         Billings           terminal              stated          that           they      had
difficulties              with     Clark's         "paranoia"             and harsh            discipline.
         In May of 1992, Clark                     filed       a complaint              with     the Montana Human
Rights         Commission              (HRC) alleging              that      he had been discriminated
against        based on his              age.       Eagle removed the case to federal                                    court
and,     in November of 1993,                       Clark      amended the complaint                         alleging            a
cause of action              for       tortious         interference          with        contract          and joining
John Ackerman,               BN's        intermodal          hub center             manager,             Sundquist         and
Schweitzer           as individual                defendants.              Due to the addition                          of the
Montana defendants,                     the federal            court       lost     diversity             jurisdiction
and the matter               was remanded                to state          district             court       in    March of
1994.
         On March           31,        1994,      the      HRC issued              a right          to      sue letter.
Accordingly,              Clark        again      amended his          complaint           alleging              a cause of
action      for      age discrimination                    against        Eagle.          On October              25, 1995,

                                                               3
the District               Court        granted            summary judgment                       to defendants               on all
issues.           Clark         appeals          from the grant                    of summary judgment                   in favor
of     the        defendants                and      Eagle             cross-appeals                   from       the        court's
determination                   that         the          Act         applies             absent         a      cessation              in
employment.
                                                  Standard             of        Review
           Our standard            in reviewing                  a district               court's        grant        of a motion
for    summary judgment                     is de nova.                   Heiat      v. Eastern              Montana College
(1996),           275 Mont.            322,        327,         912 P.2d            787,         790    (citing         Minnie         v.
City       of     Roundup         (1993),           257 Mont.                429,         431,     849 P.2d           212,      214).
That       is,     we review                an order             of    summary judgment                       using      the     same
criteria            as      the        district             court;               we are           guided        by      Rule       56,
M.R.Civ.P.                Chilbery          v.     Rose (1995),                   273 Mont.            414,     416,     903 P.2d
1377,       1378.         Thus, we determine                         whether         a genuine          issue        of material
fact     exists          and whether              the moving party                    is entitled              to judgment             as
a matter           of law.          Heiat,          912 P.2d at 791 (citing                              Minnie,         849 P.2d
at 214).           Summary judgment                   is an extreme                   remedy and should                  never         be
substituted               for     a trial            if         a material                fact     controversy               exists.
Heiat,           912 P.2d at 791 (citing                              Howard v.             Conlin       Furniture            No. 2,
Inc.       (1995),         272 Mont.             433,       436,          901 P.2d 116,                118-19).
         A        party         seeking             summary                 judgment             has      the         burden           of
establishing               a complete                absence                of     any      genuine           factual          issue.
Howard,           901 P.2d             at     118.              In     light         of      the       pleadings          and the
evidence          before         the district               court,           there        must be no material                   issue
of     fact        remaining                which         would           entitle           a non-moving                party          to
recover.            Howard,            901 P.2d at 118.                          Once the moving party                       has met
its      burden,          the     party          opposing             the         summary judgment                motion         must

                                                                      4
present        material               and substantial                  evidence,           rather       than      conclusory
or      speculative              statements,           to      raise           a genuine            issue       of material
fact.          Howard,            901 P.2d            at     119.             In    addition,            all      reasonable
inferences              that     might       be drawn from the offered                             evidence         should       be
drawn in favor                  of the party           who opposed summary judgment.                                  Howard,
901 P.2d           at     119 (citing               Cereck         v.    Albertson's,                 Inc.       (1981),        195
Mont.       409,        411,      637 P.2d 509, 511).

      1.   Did the District    Court  err  in concluding   that the
Wrongful Discharge from Employment Act applies to demotions that do
not result  in a cessation  of employment?
           Relying        on this           Court's        recent        opinion           in Howard,           the District
Court        stated            that     "the        case     at        bar        involves         neither         a lateral
transfer           nor a minor              change in job description.                              Plaintiff        was also
absolutely              and finally              terminated                  from     his      managerial            position
despite        the        offer         of     another,            inferior,               position."              The court
concluded           that         "a jury        might         conclude              that      plaintiff's            demotion
qualified           as a discharge                  within         the meaning               of the Act."               Having
determined              that      the Act        did       apply,         the court            went on to conclude
that       there     was good cause for                      Clark's           reclassification                  and granted
Eagle's       motion            for     summary judgment                  on that           basis.          In reviewing          a
district           court's             conclusions            of        law,        we determine                whether         the
court's        interpretation                   of     the        law        is     correct.             Stratemeyer             v.
Lincoln       County            (Mont.       1996),        915 P.2d 175, 177, 53 St.Rep.                             245, 246
(citing       Steer,            Inc.    v. Department                  of Revenue (1990),                    245 Mont.      470,
414-75,        803 P.2d 601,                  603-04).
           Application                 of     the      Act         hinges           on       the      existence            of     a
"discharge"              or a "constructive                   discharge."                   Section         39-2-903,       MCA,


                                                                   5
defines             the      terms     "discharge"             and   "constructive            discharge"             as
follows         :
                       (1)     "Constructive discharge"     means the voluntary
          termination       of employment       by an employee because of a
          situation      created by an act or omission of the employer
          which an objective,            reasonable      person would find      so
          intolerable        that    voluntary      termination     is the only
          reasonable alternative.            Constructive     discharge does not
          mean voluntary          termination      because of an employer's
          refusal      to promote        the employee or improve            wages,
          responsibilities,          or other       terms    and conditions     of
          employment.
                      (2)      "Discharge"          includes   a constructive        discharge
           as definedin             subsection          (1) and any other     termination      of
           employment,      including    resignation,      elimination    of the
           job,     layoff   for   lack of work,      failure      to recall   or
           rehire,     and any other cutback in the number of employees
           for a legitimate       business reason.      [Emphasis added.]
As § 39-2-903,                MCA, makes clear,             "discharge"         includes          "constructive
discharge"                and "any other           termination        of employment.tl
           In Howard,            the plaintiff            was terminated          from his          position         as
store      manager and subsequently                       offered     a position         as a sales          person
at a salary               of 75 percent         less      than his previous             salary;       Howard did
not accept             the inferior         position.           Howard,        901 P.Zd at 118.                  In the
instant             case,     however,      Clark      was replaced            as the terminal              manager
and immediately                  reassigned         and reclassified              as a utility              person.
Unlike          Howard,         the    record       does not         reflect      whether          there         was a
substantial                 change in salary           or benefits.            Clark     reported          for    work
the      following             morning       as      a utility          person          and   there         was no
cessation             of employment.
           In       the      instant       case,       Clark     does     not     allege          that      he      was
constructively                  discharged.             Furthermore,            there      has      not     been      a
termination                 of employment        within        the meaning of the Act.                   While the
District             Court     correctly        stated      the rule       we recently             announced         in

                                                            6
Howard--that                 an absolute            and final               termination           from       a managerial
position         followed            by the         offer         of an inferior                 position           may be a
termination             of      employment            for        purposes          of     the    Act--that           rule         is
inapplicable             in the instant                 case.          Here,      Clark      was never            terminated
from     his      employment                with     Eagle        nor       did     he resign.               In     fact,         he
reported          to work            the      following               morning       and worked              as a utility
person        until      several            months later               when he became disabled                        and was
no longer             able     to perform            his     duties.
         Section             39-2-904,             MCA,          requires           that         there        must          be      a
termination             of employment                before           the Act applies.                    In determining
when the statute                    of limitations                begins          to run under              the Act,         this
Court       stated           that      termination               of    employment            has been defined                     to
mean "'a          complete             severance            of    the       relationship             of     employer             and
employee by positive                        act on the part                 of either           or both."'           Allison
v. Jumping Horse Ranch (1992),                               255 Mont.            410, 412-13,              843 P.2d 753,
755 (quoting             Edwards v. Equitable                          Life       Assurance          Sot.     (Ky. 1944),
177 S.W.2d             574,         577).          Further,            in     Allison,          we recognized                that
"[ulnder          [the Act],            damages do not occur                        until        the employee               is no
longer        earning         compensation              from the employer,                      which under           the Act
is   lost      wages and fringe                    benefits,            and this            can only         occur     upon a
complete              severance              of      the          employer-employee                      relationship."
Allison,         843 P.2d at 756.
         In      the         instant          case,         there           has    been         no    termination--no
"complete             severance"              of     the         employment              relationship.                 Unlike
Howard,         there         has been no cessation                          of employment             followed         by an
offer       of an inferior                  position.             Under § 39-2-904,                   MCA, the Act                is
inapplicable             because there was no termination                                   of Clark's            employment
                                                                  7
relationship.                    Accordingly,            we hold          that     the    District           Court        was
incorrect           in      concluding              that        Clark's          demotion       qualified                as     a
discharge        under            the meaning of the Act.
        Although            the District                Court       granted       summary judgment                 for    the
wrong reasons,               it      reached        the correct            result.          We affirm         district
court        decisions              which         are      correct         regardless          of      the         court's
reasoning        in reaching                the decision.                 Phillips       v.    City     of Billings

(1988),        233 Mont.                 249,     252,     158 P.2d             772,   774.         Thus,      for        the
reasons       set        forth       above,       we affirm           the summary judgment                   for     Eagle
on Clark's           claim           for        damages under             the     Wrongful          Discharge            from
Employment Act.

       2.    Did the District Court err in granting    Eagle's motion                                                     for
summary judgment on the issue of Clark's           claim under the                                                        Age
Discrimination     in Employment Act?
        In     Heiat,            912 P.2d          at      793,      we announced             the     standard            for
analyzing       summary judgment motions                             in the employment discrimination
context       stating             that
         [tlhe    plaintiff        must allege       a prima      facie     case of
        discrimination          in her complaint.        In this context,          the
        plaintiff      alleges       a prima facie case by asserting             that
        plaintiff      is a member of a protected             class,    and that a
        male colleague          with the same credentials,           who performs
        substantially         the same work, receives           a higher salary.
        The employer seeking summary judgment must then come
        forward     with a legitimate          nondiscriminatory         reason for
        the disparity.             If the employer comes forward              with a
        legitimate       nondiscriminatory        reason, the plaintiff          must
        then, in addition           to having alleged a prima facie case in
        the complaint,           produce evidence       that     establishes       her
        prima facie         case as well as evidence which raises                    an
        inference        that     the     employer's    proffered        reason      is
        pretextual.
        Here,       Clark          alleged        a prima         facie    case of age discrimination:
(1) that       he is in a protected                        age group;            (2) that      he performed               his


                                                                8
job     in a satisfactory                   manner;            (3) that            he was discharged;                        and (4)
that      he was replaced              by a substantially                         younger          worker.            See Tonack
v.     Montana Bank of Billings                              (1993),           258 Mont.            247,       854 P.2d 326.
Eagle        filed      a motion            for        summary judgment                     on the basis                   that      the
record        was devoid              of        any     facts           showing           age to          be a factor                  in
Clark's        reclassification.                       Eagle satisfied                    its     burden         in moving for
summary          judgment         by        presenting                  a      legitimate               nondiscriminatory
reason          for      Clark's                demotion;                that       is,           he      had         failed           to
satisfactorily               perform            his     job duties.
          Under Heiat
                -,                   the        burden        was on Clark                  to     respond            to     Eagle's
motion        for     summary judgment                       by,        in    addition            to having             alleged            a
prima        facie      case,        producing               evidence             supporting             his      prima            facie
case as well             as producing                  evidence              raising            an inference               that      the
employer's            proffered            reason           was pretextual.                      Clark       failed          to meet
this        burden.          He was unable                    to        produce        evidence              supporting              his
prima        facie      case      or       evidence             raising            an inference                  that        Eagle's
proffered              reason          (failure                to            satisfactorily                  perform)                was
pretextual.
          Although           Clark         is     in        a protected                age group,                he        fails       to
satisfy        the additional                   elements           of the prima                 facie     case.         As to the
second element,               there         are affidavits                      and depositions                  from Clark's
supervisors            and Eagle employees                         that        he was not performing                         his     job
satisfactorily.                   As        to        the     third            element,           we have             previously
determined            that      Clark            was not            discharged.                    Finally,             Clark        was
initially             replaced         by         a 51-year-old                    man,          not     a     substantially
younger        worker.          Although               Clark        asserts         that         his     prior        management
position         was eventually                   filled        by a substantially                        younger            worker,

                                                                    9
he     makes           no      more          than        conclusory            statements               to     support           his
allegation             that         Sundquist's            eventual           promotion           to terminal              manager

was in         any way related                        to Clark's         age.          Clark        has not presented
material          and substantial                       evidence,        rather,           he has made conclusory
or      speculative                   statements.                 These        conclusory               and     speculative
statements              do not             create        a genuine           issue        of material               fact      which
would preclude                   the grant             of summary judgment.                       Howard,           901 P.2d at
119.

        3.         Did the District     Court err in granting     summary judgment
in favor          of the individually-named      defendants    on Clark's      claim of
tortious          interference    and negligent    or intentional     infliction     of
emotional          distress?
          In     light           of    our       holding          that       the     Act    does not                apply      to     a
demotion          as opposed to a termination,                                  the District              Court        erred         in
ruling         that      Clark's            claims        for     tortious          interference             and emotional
distress          were preempted                       by the Act.                 Nonetheless,              since         we have
affirmed         the District                  Court's           grant    of summary judgment                        on the age
discrimination                      claim,         based        on Eagle's            unrebutted              showing          that
Clark's            demotion                  was         attributable                to      unsatisfactory                      job
performance,                  logic          and       consistency            dictate            that     we affirm              the
summary judgment                       as to           Clark's       remaining             claims.             It     would          be
inconsistent                  for     Clark        to attribute              blame for           his     demotion           to the
individually-named                         defendants.              Accordingly,                 in keeping            with      the
ruling         holding              that      Clark       was responsible                  for     his       own demotion,
Clark      has no             claim         against         the     individually-named                   defendants              for
infliction               of      emotional              distress         or     tortious            interference               with
contract.              As we stated                   earlier      in the context                 of the first              issue,
we affirm             district             court       decisions         which       are correct              regardless             of

                                                                   10
the district        court's   reasoning   in reaching        its    decision.        Phillizls,
758 P.2d       at    774.     Although    the    District        Court    granted       summary
judgment       on tortious     interference          and emotional       distress       for     the
wrong reasons,         the result   was correct        and is,     therefore,       affirmed.
       Affirmed




We concur:




                Justices




                                                11
Justice            Terry         N.     Trieweiler              dissenting.
           I concur           with          the majority's                    conclusion                  that       the       plaintiff             did

not     present             substantial                   evidence             that         he was discharged                              from      his

position              as      terminal                 manager               because            of         his          age,           and        that,

therefore,              the       District             Court       correctly                 dismissed                  his      claim         of    age
discrimination                    by summary                 judgment.

           I dissent             from         the majority's                   conclusion                  that         Thomas          Clark        was

not        terminated                  from        employment,                     and        therefore,                      had       no        claim

pursuant            to Montana's                  Wrongful         Discharge                  From Employment                          Act     (WDEA)

found          at       §§       39-Z-901               to      -915,              MCA.              Clark             was          permanently

terminated              from          his     position           as terminal                   manager               at his          employer's

Billings             facility.                    He was        then          offered              a totally                  different              job

that          he      had        never            performed              before               as       a         utility               person             at

substantially                    reduced            pay.           (When the                 majority                states             that        "the

record           does      not        reflect          whether               there         was a substantial                            change            in

salary,          " they          ignore            Clark's         affidavit.)                        The          mere         fact         that         he
took       the       inferior               position           simply          means          that          he did             everything                 he

could         to mitigate               his       damages.              It     does not              change             the      fact        that         he

was irreversibly                       terminated               from         his      employment                  as the            defendant's

terminal             manager.
           This       case        is        indistinguishable                         in     any practical                      respect             from

Howardv. Conlin FurnitureNo. 2, Inc.                            (1995),               212 Mont.                  433,         901       P.2d        116.

Therefore,              I conclude                 that      the     application                     of     the        WDEA is             mandated

by     that         decision,               the     District             Court             correctly                concluded                that         it

was applicable,                       and the majority                       has erred             by trying                  to distinguish



                                                                         12
this       case          based             on        irrelevant                factors            which               make         no        practical
difference.

           1n     Howard,            the         plaintiff                was        hired        as        the        defendant's                      store

manager           in        1990      at        an annual               salary          of      $50,000               plus         a commission,

and was           terminated                    from         that       position             in     1993.               Howard,              272 Mont.

at      435-36,             901 P.2d                 at     118.         At     the      time          of       his     termination                      from

his      managerial                 position,                   the    plaintiff,               like         Clark,               was offered               an

inferior               position                 in        the         same     store.               He was               offered               a        sales

position               at       a       salary               of        $1000         per        month             plus             a        commission

opportunity.                    Howard,                   272 Mont.            at     435-36,               901 P.2d               at       118.          The

District             Court          dismissed                   the    plaintiff's                complaint                  in Howard             and we

reversed.

           On appeal,                 the            employer            in    Howard          argued,                as the            employer            in

this       case             argues,              that           the      District               Court             should               be     affirmed

because           the       plaintiff                     had not        been discharged                        from         employment,                  but

only       demoted.                 Howard,               272 Mont.             at      437,      901 P.2d                   at     119.           We set

forth       the        issue         on appeal                  as follows:                  "The       first           sub-issue               we must

decide          is          whether                  Howard            was      discharged,                      or      merely               demoted,

following               which         he resigned."                           Howard,          272 Mont.                at         438,       901 P.2d

at      119.

           We held              that            the         following                facts        were            significant                      to     our

conclusion               that        the         plaintiff               had in          fact       been discharged                            from        his

position             as store              manager:

                  This case                      does not involve                          a lateral                  transfer,    nor
           a minor    change                      in job description.                             This                case involves
           absolute     and                       final  termination                            from                  a managerial

                                                                              13
           position,        followed         by an offer         of     employment         in    a
           functionally           different,        and    substantially           inferior,
           position       with     the same employer.               To hold,      as Conlin
           suggests,       that     termination       of employment          in a position
           that      pays     over      $50,000      per   year,       and     subsequently
           offering       a position         which pays less         than 25 percent           of
           that     amount,     is not "a termination             of employment"          would
           ignore       the      plain       language     of     the     Act     and      allow
           circumvention          of the Act's        damage provisions           which       are
           based      on wages at the time               of termination.              Section
           39-L-905,       MCA.

                   Howard was informed        that he was being terminated                as
          Conlin's       manager.        He was then offered            a subordinate
          position       among the sales        staff     he previously           managed.
          His refusal        to accept     an offer     of a lesser       position,       at
          best,     affects       his  duty   to mitigate        his     damages.        We
          conclude        that     when Howard        was terminated            from    his
          managerial        position,     he was discharged          from employment
          within     the meaning       of § 39-2-903(2),         MCA, of Montana's
          Wrongful      Discharge      From Employment      Act.

Howard,          272 Mont.               at        438,        901 P.2d              at      119-20.

           There       are         only            two    distinctions                      among the              facts         in     the      Howard

case        and       those             in         this        case:           (1)          Clark          accepted             the          inferior

position,             whereas                 Howard            rejected              it;         and       (2)     we knew              what           the
difference                 in    pay         was for             Howard,             while          all         we know          from         Clark's

affidavit             is        that         his      pay was substantially                                 reduced             following               his

termination                 as terminal                    manager.                  However,              as we noted                  in     Howard,

the       fact        that             the         employee             did          or       did         not      take         the          inferior

position           simply              relates            to     the     issue              of mitigation                  of    damages,               and

whether           we know               the          actual           dollar              amount          by      which         pay      has          been

reduced,           or simply                  know that               pay has been substantially                                      reduced,           is

a distinction                    that          makes           no practical                     difference.

           The majority                      cites        Allison v. JumpingHorseRanch,                         Inc. (1992),            255 Mont.

410,        412-13,               843          P.2d            753,      755,             for       the          proposition                   that           a


                                                                           14
discharge                requires                  "a     complete                   severance                 of        the         relationship                      of
employer             and         employee                 by        positive                    act     on         the        part          of     either              or

both."             However,                Allison is               inapplicable                       to      the        facts           in      this         case.

It      dealt        only            with          the      issue               of        when         the         statute             of        limitations

began         to     run,            based         on the            facts                in    that         case.              That           case      did      not

involve            the      termination                     by the               employer                of        one        form        of      employment

and       a        subsequent                     offer             of       substantially                           inferior                    employment.

Therefore,                the         majority's                    reliance                   on Allison is                  misplaced.                     Howard,

on       the         other                 hand,               is          directly                    on          point               and          factually
indistinguishable.
           The inference                      from         the           majority's                    decision                is     that,         had Clark

turned          down the               inferior                position                   of utility                 person,                he could            have

made a claim                    for         constructive                        discharge                   pursuant                 to     the       WDEA and

our      decision               in     Howard.             However,                   that        suggestion                    also           ignores          that

plain         language                of      our         decision                   in        Howard.             That             decision             was      not

based         on our            conclusion                 that           by offering                       the      plaintiff                   an inferior

position             he was                constructively                            discharged.                         It     was         based            on our

conclusion               that         when he was finally                                      terminated                as store                manager,              he

WZlS          "discharged                         from              employment                         within                  the             meaning                 of

5 39-2-903               (Z),        MCA, of Montana's                               Wrongful                Discharge                From Employment

Act."           Howard,              272 Mont.              at           438,         901 P.2d                at     120.

           For       these            reasons,                 I conclude                       that         Clark            has      stated            a     claim

for      wrongful                discharge                 pursuant                       to     Montana's                    Wrongful              Discharge

From       Employment                      Act,          and        that             the        District                 Court            erred          when          it

dismissed             that           claim          by summary                   judgment.                    I therefore                      dissent           from


                                                                                     15
that       part         of        the         majority              opinion            which            affirms         the      District
Court's           dismissal.

           Because           I     conclude              that        Clark's           termination                from         employment

was       covered            by         the      Wrongful              Discharge                  From      Employment              Act,          I

specially               concur           with         that          part         of    the         majority            opinion        which

affirms           the        District              Court's                 dismissal               of      Clark's           claims         for

tortious           interference                   and negligent                       or     intentional               infliction            of

emotional            distress.                   For      those            employees               covered        by     the     Wrongful

Discharge            From         Employment                 Act,          common           law     remedies           are      preempted

pursuant           to     § 39-2-913,                    MCA, and pursuant                          to     5 39-2-905(3),                  MCA,

there       is     no right              to     recover             damages           for         emotional          distress.




                                                                             /                    us ice



Justice           William           E.        Hunt,          Sr.,      joins           in     the        foregoing             dissenting
opinion.




                                                                           16
                                    November 20, 1996


                              CERTIFICATE      OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid,
to the following named:

Steven J. Lehman
Crowley, Haughey, Hanson, Toole & Dietrich
Box 2529
Billings MT 59103-2529

K. D. Peterson, Esq.
Peterson and Schofield
2906 Third Avenue North
Billings MT 59102



                                                  ED SMITH
                                                  CLERK OF THE SUPREME            COURT
                                                  STATE OF MONTANA

                                                  BY:
                                                  Deputy