NO. 93-443 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1994 

GINA L. MORTON, 

Plaintiff and Appellant, 

v. 

M-W-M, INC., a Montana corporation, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable John M. McCarvel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

John F. Lynch, Lynch Law Firm, Great Falls, Montana 

For Respondent: 

Richard Dzivi and Tonja D. Schaff, Richard Dzivi, 

P.C. , Great ,Falls, Montana 

I 

Submitted on Briefs: December 22, 1993 

Decided: February 1, 1994 

Filed: F- C& 2i'HiiL 

ELERKOFSUPREMECO~~ 

STATE OF MONTAiUA 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

Plaintiff Gina L. Morton (Morton) appeals from a decision of 

the Eighth Judicial District Court, Cascade County. The court 

entered summary judgment in favor of the defendant, M-W-M, Inc. (MW-M), owner of Burger King Franchise No. 1666 in Great Falls, 

Montana, after concluding that there were no disputed issues of 

fact and that an agent at the company's franchise had good cause to 

terminate Morton's employment as an assistant manager. We reverse 

and remand. 

The issues on appeal are rephrased as follows: 

1. Whether the District Court erred by granting summary 

judgment to M-W-M after concluding there were no disputed issues of 

fact and concluding good cause existed for Morton's termination 

from the Burger King franchise; 

2. Whether Morton mitigated any damages allegedly due her by 

working full-time at another job after her termination from Burger 

King. 

Morton began employment with M-W-M's franchise, Burger King 

No. 1666, in Great Falls during September 1989. She worked her way 

up through the ranks in less than a year, earning an assistant 

manager position on May 18, 1990. Her written performance 

evaluations at Burger King were mostly exceptional with no lessthan-satisfactory work traits mentioned. Her position at Burger 

King was part-time, and the unofficial policy there offered Morton 
a very flexible work schedule dependent in part on her husband's 

work schedule and the child-care needs of their family. 

As a matter of unwritten policy, the general manager of Burger 

King No. 1666, Matt Blazicevich (Blazicevich), voluntarily agreed 

to schedule Morton for work according to her scheduling requests. 

Morton was the sole part-time assistant manager. 

Vacation time offered by Burger King came in one of two forms: 

paid leave or unpaidtime off. Frequently, employees would request 

unpaid time off by leaving a note with Blazicevich. He often would 

then voluntarily refrain from scheduling the employee according to 

the employee's request. 

During April of 1992, Morton requested vacation time; 

Blazicevich responded that if Morton were to wait until May, she 

would be eligible for two weeks vacation. Paid leave vacation for 

managers at Burger King was offered at two weeks for two years of 

service, and Morton was nearing the second anniversary of the date 

she was promoted to assistant manager. On April 20, then, Morton 

left a note with Blazicevich requesting the first two weeks of May 

1992, off for the purpose of attending to her family's needs while 

her husband was in job training. Her note further requested that 

she work the following shifts during May: Tuesday and Wednesday, 

the 19th and 20th; and Saturday and Sunday, the 30th and 31st. 

Blazicevich scheduled her accordingly. On the same day, April 20, 

1992, Morton filled out an application to work a second job at the 

Black Angus restaurant. 

3 
Historically the Burger King franchise permitted moonlighting 

as long as the second job did not conflict with the Burger King 

work schedule and as long as the second job did not involve a 

Burger King competitor. Near the end of April 1992, Blazicevich 

learned from a neighbor that one of his Burger King employees was 

moonlighting at the Black Angus restaurant in Great Falls. 

Blazicevich went to the Black Angus on May 4, 1992; he saw Morton 

working. On the next day, when Morton went into Burger King to 

pick up her paycheck, Blazicevich terminated her employment without 

explanation. She initiated wrongful discharge proceedings. 

M-W-M moved the court for summary judgment, stating that the 

following discrepancies enabled Blazicevichto terminate Morton for 

good cause: she did not make herself available for part-time work, 

she was working for a competitor of Burger King, and she was 

dishonest. M-W-M also alleged that Morton suffered no damages as 

a result of her termination from employment, because she was 

employed at the Black Angus. 

Morton stated that she followed Burger King policy when 

requesting and obtaining her vacation and that she originally 

requested vacation time to attend to her family's needs while her 

husband was in training. After obtaining the vacation time, she 

found a babysitter for her children and interviewed for the Black 

Angus job on April 30. She got the job and started work there on 

May lst, 1992. Additionally, Morton contended that the Black Angus 

restaurant is not a competitor of Burger King. 

4 
The District Court granted summary judgment to M-W-M. Morton 

appeals. 

ISSUE 1 

Did the District Court err by granting summary judgment to MW-M after concluding there were no disputed issues of fact and 

concluding good cause existed for Morton's termination from 

employment? 

Our standard of review when considering an appeal from a 

summary judgment decision is the same as that whicn was faced by 

the district court under Rule 56, M.R.Civ.P. Minnie v. City of 

Roundup (1993), 257 Mont. 429, 431, 849 P.2d 212, 214. Summary 

judgment is proper when there is no genuine issue of material fact 

and the moving party is entitled to judgment as a matter of law. 

Rule 56, M.R.Civ.P. Summary judgment is never a substitute for a 

trial on the merits. Krieg v. Massey (1989), 239 Mont. 469, 471, 

781 P.2d 277, 278. 

The party seeking summary judgment bears the burden to show 

the court that it has met the standards set forth in Rule 56, 

M.R.Civ.P. DtAgostino v. Swanson (1990), 240 Mont. 435, 442, 784 

P.2d 919, 924. The court must review both the pleadings and the 

record before it in making its decision. D8Agnostino v. Schapp 

(1988), 230 Mont. 59, 748 P.2d 466, citing Rule 56(c), M.R.Civ.P. 

When examining the record, any factual inferences which can be 

drawn must be resolved in favor of the nonmoving party. &&g, 781 
P.2d at 278; Cereck v. Albertsons, Inc. (1981), 195 Mont. 409, 637 

P.2d 509. 

If the moving party has met its burden of proof, the nonmoving 

party has the burden of showing that a genuine issue of material 

fact exists or that the moving party is not entitled to judgment as 

a matter of law. m, 781 P.2d at 278; Rumph v. Dale Edwards, 

Inc. (1979), 183 Mont. 359, 600 P.2d 163. The nonmoving party may 

not rely solely on the allegations stated in its pleadings. Drug 

Fair Northwest v. Hooper Enterprises, Inc. (1987), 226 Mont. 31, 

33, 733 P.2d 1285, 1287. Instead, when raising the allegation that 

disputed issues of fact exist, the nonmoving party has an affirmative duty to respond by affidavits or other sworn testimony 

containing material facts that raise genuine issues; conclusory or 

speculative statements will not suffice. Barich v. Ottenstror 

(1976), 170 Mont. 38, 42, 550 P.2d 395, 397. 

The summary judgment in the instant case is based on the lower 

court's findings of fact and conclusion that there were no disputed 

issues of fact. These findings and conclusion are not supported by 

the record. In order to articulate the disputed issues, we first 

examine the law surrounding Morton's wrongful discharge claim. 

Under the Wrongful Discharge from Employment Act a valid 

ground for maintaining a cause of action against a former employer 

is when the employee's "discharge was not for good cause and the 

employee had completed the employer's probationary period of 

employment. It Section 39-2-904 (2) , MCA. The act defines good cause 

6 
as 'Ireasonable job related grounds for dismissal based on a failure 

to satisfactorily perform job duties, disruption of the employer's 

operation, or other legitimate business reasons." Section 39-2- 

903(5), MCA. Deposition testimony by Blazicevich and Morton 

establishes that Morton was not terminated for unsatisfactory 

performance and that she had passed her probationary period of 

employment. The issue, therefore, is whether Morton's termination 

was justified by a legitimate business reason. 

This Court has previously defined legitimate business reason 

as "a reason that is neither false, whimsical, arbitrary or capricious, and it must have some logical relationship to the needs of 

the business." Kestell v. Heritage Health Care Corp. (Mont. 1993), 

858 P.2d 3, 7, 50 St.Rep. 919, 922, citing Buck v. Billings Montana 

Chevrolet, Inc. (1991), 248 Mont. 276, 281-82, 811 P.2d 537, 540. 

As we stated in Kestell, 858 P.2d at 7-8: 

It is well settled in our pre-[wrongful discharge1Act 

cases that courts should not intrude in the day-to-day 

employment decisions of business owners. . . . An 

employer's legitimate right to exercise discretion over 

whom it will employ must be balanced, however, against 

the employee's equally legitimate right to secure employment. . . . The balance should favor an employee who 

presents evidence, and not mere speculation or denial, 

upon which a jury could determine that the reasons given 

for his termination were false, arbitrary or capricious, 

and unrelated to the needs of the business. [Citations 

omitted]. 

When considering M-W-M's motion for summary judgment, the 

court first entertained M-W-M's assertion that no disputed issues 

of fact existed. The court specifically asked counsel for Morton 
whether any disputes of fact were involved in this case; Morton's 

counsel replied that there were none. 

That reply was erroneous. The record before us is brief, 

consisting of various court filings and certain pieces of discovery 

including two depositions, one from Blazicevich and one from 

Morton. After reviewing the record, we conclude that contrary to 

the District Court's findings, material issues of fact exist, 

including whether Morton's vacation request was made according to 

Burger King policy; whether the Black Angus is a competitor of 

Burger King: and whether Morton misled her employer to obtain 

vacation time to work at a second job. The District Court's 

findings of fact relating to the above disputed issues are not 

supported by the record and are, therefore, clearly erroneous. See 

Interstate Prod. Credit Assln v, IleSaye (1991), 250 Mont. 320, 820 

P.2d 1285. 

Where the record shows genuine issues of fact and the parties 

relate widely divergent reasons for Mortonrs termination, the trier 

of fact must resolve those issues and determine whether Morton was 

fired for good cause. See Dare v. Montana Petroleum ~arketing Co. 

(19841, 212 Mont. 274, 282, 687 P.2d 1015, 1019. Here, each party 

argues the above disputed facts in each respective brief. We 

conclude that in this record there are material fact issues that 

cannot be disposed of by summary judgment and this issue is 

remanded for proceedings consistent with this opinion. 
ISSUE 2 

Did Morton mitigate any damages allegedly due her by working 

full-time at a restaurant after her termination from Burger King? 

In its conclusions of law the District Court states: 

Plaintiff mitigated any damages she may have been 

entitled to if this Court would have found a wrongful 

discharge. Plaintiff is a full-time employee at the 

Black Angus Restaurant, earning more than she earned at 

Burger King No. 1666. Accordingly, even if Plaintiff was 

wrongfully discharged, she suffered no damages, rendering 

Defendant, M-W-M Inc., entitled to summary judgment. 

The court failed to note, however, that Morton's second job at the 

Black Angus was presumably compatible in hours to the requirements 

of her first, part-time job at Burger King. We hold that the 

court's finding was clearly erroneous because Morton could have 

worked both jobs concurrently and the loss of earnings she suffered 

as a result of termination from Burger King are necessarily part of 

her wrongful discharge claim. On remand, the issue of mitigation 

of damages for appellant's loss of employment at M-W-M remains to 

be resolved. 

Reversed and remanded. 

a\ Chief Justice 
We concur: 
February 1, 1994 

CERTIFICATE OF SERVICE 

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

named: 

JOHN F. LYNCH 

Lynch Law Firm 

P.O. Box 2265 

Great Falls, MT 59403 

Richard Dzivi 

Tonja D. Schaff 

RICHARD DZM, P.C. 

P.O. Box 1291 

Great Falls, MT 59403-1291 

ED SMITH 

CLERK OF THE SUPREME COURT 

STAF OF MONTANA