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 in part, reverse in part, and remand for 

further proceedings consistent with 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 began working there, Tonack held a teller position. 

She was promoted to teller supervisor. In October 1988, she took 

a job with the Montana Bank of Billings, with which the bank in 

Sidney was affiliated. When she moved to ~illings, she became the 

bank's Financial Services Representative (FSR). 

In January of 1990, Tonackfs performance as an FSR was 

evaluated as fully satisfactory; %ore toward the excellent 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. In August 1990, after irregularities were discovered 

in a bank audit, Kiedrowski placed Tonack on a 30-day probation. 

The irregularities included a theft that had occurred in the 

travelers check area of the bank. The area in which the theft 

occurred was not under Tonack's supervision and the theft occurred 

while Tonack was away on vacation. When she placed Tonack on 

probation, Kiedrowski also relieved her of all duties other than 

her FSR duties. 

While she was still on probation, Tonack became aware that the 

bank had ordered calling cards prepared for a newly-hired bank 

employee, Rhonda Kreamer, which showed Kreamer's job title as FSR. 

The bank had only one FSR position. Also, Kiedrowski instructed 

Tonack to cross-train Kreamer to serve as backup FSR. 

During the week the training was to occur, Kiedrowski was out 

of town. The person who had been expected to cover for Kreamer 

during training failed to report to work. Tonack therefore decided 

to postpone the training. Kreamer resigned. When Kiedrowski 

returned, she immediately met with Tonack and terminated Tonack's 

employment. Tonack was 49 years old at that time. 

The parties waived jury trial and the case was tried to the 

court. After hearing the evidence, the court concluded that Tonack 

was terminated from her employment in violation of both the Montana 

Wrongful Discharge From Employment Act (Wrongful Discharge Act), §§ 

39-2-901 to 914, MCA, and the federal Age Discrimination in 

Employment Act (ADEA) , 29 U.S.C. $3 621-634. It awarded Tonack 
damages under the Wrongful Discharge Act for four years of future 

lost wages and benefits. In addition, 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 

findings of fact concerning the claim of violation 

of the Age Discrimination in Employment Act clearly erroneous? 

The bank challenges eighteen of the District Court's findings 

of fact. Here, we address only those findings relating to the ADEA 

claim. 

This Court will affirm findings of fact if they are not 

clearly erroneous; that is, if they are supported by substantial 

evidence, the trial court has not misapprehended the effect of the 

evidence, and this Court is not left with a definite and firm 

conviction that a mistake has been made. Interstate production 

Credit v, DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287. 

The credibility and weight given evidence and witnesses by the 

trial court must be granted great weight on appeal. ~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. 

The bank challenges the findings that there were no reviews of 

Tonackls performance as FSR during her 30 days of probation and 

that her performance in that position was satisfactory. The record 
contains Kiedrowskifs notes made following the meeting in which she 

placed Tonack on probation, but we do not consider those informal 

notes as a performance review. Tonackts last 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 Kiedrowskils deposition appended to a brief filed in 

District Court established that Rhonda Kreamer withdrew her 

resignation and assumed some of Tonackls duties after Tonackls 

employment was terminated. Tonack testified at trial that Kreamer 

"was a much younger person than I.*@ 

The bank challenges several findings concerning statements of 

George Balback, the president of Montana Bancsystem, the holding 

company for the bank. Gary Nichols, vice-president of the bank 

until August of 1990, testified about conversations he had with 

Balback between January and August of 1990. In those 

conversations, Balback expressedthathe did not believe Tonack was 

right for her position because of her age and background. Although 

the bank contends that there was no testimony that Balback said 

Tonack should be fired because of her age, Nicholst testimony is 

clearly to that effect. Nichols testified that Balback stated that 
he had encouraged those responsible to make a change because he did 

not want Tonack in the FSR position and that he felt Kiedrowski 

would Itget it handled. " 

The bank challenges the finding that Balback could influence 

hiring and firing. That finding is supported by Nichols1 testimony 

that Balback had the authority to prevent him from making Tonack 

teller supervisor. 

We hold that substantial evidence supports the above findings 

and that the court did not misapprehend the effect of the evidence. 

The findings do not leave us with the impression that a mistake has 

been made. 

I1 

Did the District Court incorrectly interpret or misapply the 

provisions of the ADEA? 

The bank claims that Tonackls ADEA case was fatally flawed in 

that Tonack did not establish the necessary element of pretext. It 

alleges that the court incorrectly characterized certain evidence 

as Itdirect evidence" and challenges certain findings made by the 

District Court. 

To establish a prima facie case of age discrimination under 

the ADEA, a plaintiff must either provide direct evidence of 

discrimination or produce evidence that 1) she was in the protected 

age group; 2) she was performing her job satisfactorily; 3) she was 

discharged; and 4) she was replaced by a substantially younger 

person. Rose v. Wells Fargo & Co. (9th Cir. 1990), 902 F.2d 1417, 

1421. The burden then shifts to the defendant to articulate a 
nondiscriminatory reason for the discharge. Texas Dept. of 

Community Affairs v. ~urdine (1981), 450 U.S. 248, 253, 101 S.Ct. 

1089, 1093, 67 L.Ed.2d 207, 215. The burden then shifts back to 

the plaintiff to prove by a preponderance of the evidence that the 

reasons articulated by the employer for termination are merely a 

pretext for discrimination, Burdine, 450 U.S. at 253. 

Tonack uncontrovertedly established that she was in the 

protected age group and that she was discharged. Under Issue I, we 

have approved findings which establish that she was performing her 

job satisfactorily and that she was replaced by a substantially 

younger person. We conclude that Tonack presented a prima facie 

case that the bank violated the ADEA in terminating her employment. 

The bank rebutted the presumption of discrimination through 

its evidence that Tonack was discharged for a legitimate reason, 

failure to correct deficiencies in the teller supervisor area and 

her inability to work with others. 

Tonack provided evidence to disprove the legitimate 

explanation offered by the bank. Contrary to the bank's 

assertions, a court may rely on all evidence, including evidence 

used to establish a prima facie case, to establish pretext. 

Burdine, 450 U.S. at 256, n. 10. Also contrary to the bank's 

assertions, a finder of fact may infer that age discrimination took 

place. Merrick v. Northern Natural Gas Co. (10th Cir. 1990), 911 

F.2d 426, 429. Taken together, the evidence of Tonackfs 

satisfactory perfoman~e reviews, the testimony about Balbackts 

statements that Tonack should go and that ~iedrowski would "get the 
job done," the erroneous basis for placing Tonack on probation, the 

ordering of business cards showing Xreamer's position as FSR, and 

the circumstances of Tonack's termination indicate that the 

articulated reason for discharge was a pretext. 

We hold that the District Court did not incorrectly interpret 

or misapply the provisions of the ADEA and that it did not err in 

ruling that Tonack established that the bank violated the ADEA in 

terminating her employment. 

Did the District Court incorrectly interpret or misapply the 

provisions of the Wrongful Discharge Act? 

The Wrongful Discharge Act provides, at g 39-2-902, MCA: 

Except as provided in 39-2-912, this part provides the 

exclusive remedy for a wrongful discharge from 

employment. 

Section 39-2-912, MCA, states: 

This part does not apply to a discharge: 

(1) that is subject to any other state or federal statute 

that provides a procedure or remedy for contesting the 

dispute. Such statutes include those . . . that prohibit 

unlawful discrimination based on . . . age. 

The bank claims these statutes prohibit Tonack from recovering 

under both the ADEA and the Wrongful Discharge Act. 

Tonack cites two Montana federal district court decisions in 

which it has been held that concurrent actions under the Wrongful 

Discharge Act and the ADEA are not prohibited when there are 

separate and distinct factual predicates to support each claim. 

Vance v. ANR Freight Systems, Inc. (D.Mont. 1991), 9 Mont. Fed. 

Rpts. 36, 39-40: Higgins v. Food Services of America, Inc. (D.Mont. 
lggl), 9 Mont. Fed. Rpts. 529, 530. We decline to completely 

follow those decisions, exercising our prerogative as the ultimate 

authority on the interpretation of Montana statutes. 

Section 39-2-912, MCA, provides that the Wrongful Discharge 

Act does not apply to "a discharge" subject to other statutes. It 

does not provide that the Act applies to all factual claims not 

covered by other statutes. Tonackls claims under both the ADEA and 

the Wrongful Discharge Act relate to one discharge from employment 

at the bank. We conclude that Tonack may not recover under both 

the ADEA and the Wrongful Discharge Act. 

In Deeds v. Decker Coal Co, (lggo), 246 Mont. 220, 805 P.2d 

1270, this Court held that the above statutory provisions did not 

prohibit a wrongful discharge action by union employees because the 

National Labor Relations Board had not yet filed a complaint 

against the discharged employees. If the NLRB filed such an 

action, the Court stated, a "procedure or remedy for contesting the 

dispute*' would be set in motion and the statutory exemption of 5 

39-2-912, MCA, would apply. Deeds, 805 P.2d at 1271. 

Whether a discharge will ultimately be "subject to any other 

state or federal statute that provides a procedure or remedy for 

contesting the disputeq* is not immediately known when a claim is 

filed. This must be determined before it is known whether the 

Wrongful Discharge Act may be applied. It is established only when 

a finder of fact has made that determination or when judgment on 

the claim has otherwise been entered. Therefore, we conclude that 

claims may be filed concurrently under the Wrongful Discharge Act 
and other state or federal statutes described in 5 39-2-912, MCA, 

but if an affirmative determination of the claim is obtained under 

such other statutes, the Wrongful Discharge Act may no longer be 

applied. To the extent that this conclusion modifies our holding 

in Deeds, that opinion is so modified. 

In this case, the Wrongful Discharge Act was no longer 

applicable following the District Court's factual determination 

that the ADEA applied to Tonack's discharge from employment. We 

therefore hold that Tonack is not entitled to recover damages under 

the Wrongful Discharge Act, and we reverse the District Court's 

conclusion on that issue. 

Because of the above conclusions and holdings, we do not 

address the bank's issues concerning computation of damages or the 

findings of fact relevant to Tonack's claim under the Wrongful 

Discharge Act. We remand this case to the District Court for 

recalculation of damages consistent with this Opinion. 

We Concur: 

Justices 

10 
Justice Terry N. Trieweiler concurring in part and dissenting in 

part. 

I concur with the majority's conclusions under Issues I and I1 

that the District Court's findings were not clearly erroneous and 

that the District Court correctly applied the provisions of the Age 

Discrimination in Employment Act. 

I dissent from that part of the majority opinion which holds 

that plaintiff cannot recover separately under Montana's Wrongful 

Discharge From Employment Act and the Federal Age Discrimination in 

Employment Act, even though the factual basis for recovery under 

each Act is separate and distinct. 

The majority relies on 5 39-2-912, MCA, of Montana's Wrongful 

Discharge From Employment Act which provides: 

This part does not apply to a discharge: 

(1) that is subject to any other state or federal 

statute that provides a procedure or remedy for 

contesting the dispute. 

In this case, plaintiff alleged two separate and independent 

reasons why her termination from employment was unlawful. She 

alleged that she was terminated because of age discrimination which 

was a violation of the Age Discrimination in Employment Act, 

29 U.S.C. 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 Fact No. 36, specifically found that "[dlefendant Bank's 
termination of Ms. Tonack was also in violation of its written 

personnel policy set forth within the lsupervisor's manual.Ilq 

Under Montana law a discharge is wrongful if "the employer 

violated the express provisions of its own written personnel 

policy. Section 39-2-904 (3) , MCA. However, there is no other 

state or federal statute that has been brought to this Court's 

attention which provides a procedure or remedy for termination that 

is wrongful on that basis. The plaintiff1 s claim under 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. 

I agree with the prior decisions of the Federal District Court 

for the District of Montana in Vance v. ANR Freight Systems, inc. (D. Mont. 

1990) , Doc. No. CV-90-120-GF, 9 Mont, Fed. Rpts. 36, and Hi&m v. 

Food Services of America, 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 

establishingthe factual predicate necessaryto establish 

a claim for relief under the Act, 

. . . [Wlhere the factual predicate upon which the 

affected employee bases his claim under the Act is 
distinct from the factual predicate upon which the 

affected employee might otherwise base a claim under 

state or federal law prohibiting discrimination, he is 

not precluded from seeking redress under the Act. 

Vance, 9 Mont. Fed. Rpts. at 39-40. 

In Higins, under facts similar to these, the Federal District 

Court recognized that a federal claim based on discrimination does 

not preclude a state claim under Montana's Wrongful Discharge From 

Employment Act for a violation of written personnel policies. 

Again, the rationale was that each cause of action is based on a 

distinct and separate factual basis. 

In this case, there was no federal or state statutory claim 

allowing recovery by the plaintiff for termination in violation of 

the employer's written personnel policies. Therefore, 5 39-2-912, 

MCA, did not apply. For these reasons, I dissent from that part of 

the majority opinion which holds otherwise. I would affirm the 

District Court judgment in its entirety. 
May 13, 1993 

CERTIFICATE OF SERVICE 

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

following named: 

Jeanne M. Bender 

Michael B. Anderson 

HOLLAND & HART 

175 North 27th Street, Suite 1400 

BiUings, MT 59101 

k Clifford Edwards 

Kevin M. Funyak 

EDWARDS & PAOLI 

P.O. Box 20039 

Biings, MT 59104-0039 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA