No. 92-343 IN THE SUPREME COURT OF THE STATE OF MONTANA 1993

BETTY L. TONACK, Plaintiff and Respondent,

-vMONTANA BANK OF BILLINGS, Defendant and Appellant.

APPEAL FROM: District Court of the ~hirteenth 3udiciaI 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, ~evin M. Funyak, Edwards Law Fim, Billings, Montana

Submitted 

### on Briefs: January 14, 1993 Decided: M~Y 13, 1993 Filed:~ustice 

### R. 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 

### inpart, reverse inpart, and 

### remand for furtherproceedings consistentwith this opinion. We restate the dispositive issues as: 1. 

### Are certain findings of fact concerning the claim of 

### violation of 

### the Age Discrimination in Employment Act 

### clearly erroneous? 2. Did 

### the District Court incorrectly interpret or misapply the provisions of 

### the Age 

### Discrimination 

### in Employment Act? 3. 

### Did the District 

### Court incorrectly interpret or misapply the provisions 

### of the Wrongful Discharge Act? Betty Tonack began working for the Montana Bank of Sidney in 2981. 

### When she

### beganworking there,Tonackheld 

### a tellerposition. She 

### was promoted 

### to teller supervisor. In 

### October 1988, 

### she took

a job 

### with the Montana Bank of 

### Billings, with which 

### the bank 

### in Sidneywas affiliated. When shemoved to ~illings, she became 

### the bank's Financial Services Representative (FSR). In 

### January of 1990, 

### Tonackfsperformance as 

### an FSR 

### was evaluated as fully 

### satisfactory;%ore

### toward the 

### excellent side.ll 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. InAugust 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 occurredwas not under Tonack's supervisionand 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, Tonackbecame aware that the bank had ordered calling cards prepared 

### for a newly-hired bank employee, Rhonda Kreamer, which showedKreamer'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, Kiedrowskiwas out of town. The person who had been expected to cover for Kreamer during training failedto report towork. Tonack thereforedecided to postpone the training. Kreamer resigned. When Kiedrowski returned, she immediatelymet 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 fromher employment inviolation of both theMontana Wrongful DischargeFrom EmploymentAct (WrongfulDischargeAct), §§ 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, the 

### court awarded damages 

### under the 

### ADEA

## , damages awarded expected date of

Are certain calculating those damages from under the Wrongful 

### isc charge retirement. the last 

### date of Act to Tonackvs

findingsof fact concerning the claim of violation of the Age Discrimination in Employment Act clearly erroneous? Thebank challenges eighteen of the District Court's findings 

### of fact. Here,we address only those findings relating to theADEA 

### 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. ~orning Star 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. Thebank challenges the findingsthat there were no reviews of 

### Tonacklsperformance as FSR 

### during her 30 

### days of probation and 

### that her performance in thatpositionwas 

### satisfactory. The 

### record

### containsKiedrowskifs notesmade following themeeting inwhich she placed Tonack on 

### probation, but we 

### 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. Tonackls exhibits 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 Kiedrowskilsdeposition appended to a brief filed in District Court established that Rhonda Kreamer withdrew her resignation and assumed some of Tonacklsduties after Tonackls employmentwas terminated. Tonack testified at trial that Kreamer "was a much younger person than I.*@ The 

### bank challenges several findings concerning statementsof 

### 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

### expressedthathedid not

### believeTonack

### was right forherposition 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 clearlyto that effect. Nichols testified that Balback stated thathe had encouragedthose responsible tomake a change becausehe did not want Tonack in the FSR position and that he felt Kiedrowski would Itgetit handled.

## " The bank challenges the finding that Balback could influence hiring and firing. That finding is supportedby Nichols1testimony 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 courtdid notmisapprehend the effect of the evidence. The findingsdo not leaveuswith the impressionthat amistake has been made. I1 Did the District Court incorrectly interpret or misapply the provisions of the ADEA? The bank claims that Tonackls ADEA casewas fatally flawed in that Tonackdid not establishthenecessary element of pretext. It alleges that the court incorrectly characterized certain evidence

as Itdirectevidence" 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 orproduce evidence that 1) shewas in theprotected age group; 2) shewasperforming her job satisfactorily;3) shewas discharged; and 4) she was replaced by a substantially younger person. Rose v. Wells Fargo & Co. (9thCir. 1990), 902 F.2d 1417, 1421. The burden then shifts to the defendant to articulate anondiscriminatory 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 shewas discharged. Under Issue I,we have approved findings which establish that shewas performing her 

### job satisfactorily and that she was replaced by a substantially younger person. We conclude that Tonack presented a prima facie case that thebank violated theADEA in terminatingher 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 finderof factmay infer that age discrimination took place. Merrick v. Northern Natural Gas Co. (10thCir. 1990), 911 F.2d 426, 429. Taken together, the evidence of Tonackfs satisfactory perfoman~e reviews, the testimony about Balbackts statements that Tonack shouldgo and that ~iedrowski would "getthejobdone," the erroneousbasis forplacing Tonack onprobation, 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 stateor federal statute that provides a procedure or remedy for contesting the dispute. Such statutes include those

# .. . thatprohibit 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: Higginsv. Food Services of America, Inc. (D.Mont.lggl), 9 Mont. Fed. Rpts. 529, 530. We decline to completely follow those decisions, exercising our prerogative as the ultimate authority on the interpretationof 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 theADEA 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 awrongful discharge actionby 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 "procedureor remedy 

### forcontesting 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 dischargewill ultimatelybe 

### "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 onlywhen

a finder of fact has made that determination or when judgment on the claimhas otherwisebeen entered. Therefore,we conclude that claimsmay be filed concurrently under the Wrongful DischargeActand 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 thereforehold thatTonack 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 themajority's conclusionsunder Issues I and I1 that the District Court's findings were not clearly erroneous and that the District Court correctly applied the provisions of theAge 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 EmploymentAct and the FederalAge Discrimination in Employment Act, even though the factual basis for recovery under each Act is separate and distinct. Themajority 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 shewas terminated because of age discriminationwhich

was a violation of the Age Discrimination in Employment Act, 29 U.S.C. 

### 55 621 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 FactNo. 36, 

### specificallyfound that "[dlefendant Bank'stermination of Ms. Tonack was also in violation of its written personnel policy set forth within the lsupervisor'smanual.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 

### aprocedure or remedy fortermination that iswrongful on thatbasis. Theplaintiff1 s claimunder federal law

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. Iagreewith theprior decisions of the Federal District Court for the District of Montana 

### in Vancev.ANRFreight Systems,inc. (D. Mont. 1990)

### , Doc. No. CV-90-120-GF, 9 Mont, Fed. Rpts. 36, and Hi&m 

### v. FoodServices

### ofAmerica, 

### hc. (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 establishingthefactualpredicatenecessarytoestablish 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. 

### InHigins, 

### under facts similar to these, the Federal District Court recognized that a federal claimbased on discrimination does not preclude a state claimunder 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 recoveryby theplaintiff 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 CERTIFICATEOFSERVICE I herebycertifythatthefollowingorderwas sentby United Statesmail,prepaid,tothe followingnamed:

Jeanne

### M.Bender MichaelB.Anderson HOLLAND&

### HART 175North27thStreet,Suite 1400 BiUings, 

### MT 59101 

### kCliffordEdwards KevinM.Funyak EDWARDS&PAOLI P.O. Box20039 Biings,

### MT 59104-0039 EDSMITH 

### CLERK

### OF

### THESUPREME

### COURT STATEOFMONTANA