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~~ STATEOFMONTAiUAChief 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 thedefendant,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 franchisehad good cause to terminateMorton's employment as an assistantmanager. We reverse and remand. The issues on appeal are rephrased as follows: 1. Whether the District Court erred by granting summary judgment toM-W-M after concluding therewere nodisputed issues of fact and concluding good cause existed for Morton's termination from the Burger King franchise; 2. Whether Mortonmitigated anydamagesallegedlydueherby 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, inGreat Fallsduring September 1989. Sheworked 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 Mortona very flexible work schedule dependent in part on her husband's work schedule and the child-care needs of their family. As amatter of unwritten policy, thegeneralmanager 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 offeredby Burger King came in one of two forms: paid leave or unpaidtimeoff. Frequently, employeeswould request unpaid time off by leaving a notewith Blazicevich. He oftenwould 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 leavevacation 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 thepurpose 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 sameday,April 20, 1992,Morton filled out an application to work a second job at the Black Angus restaurant. 3Historically 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 upher paycheck,Blazicevich terminatedher employment without explanation. She initiated wrongful discharge proceedings. M-W-M moved the court for summary judgment, stating that the following discrepancies enabledBlazicevichto terminateMorton for good cause: shedid not make herself available forpart-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 BlackAngus restaurant is not a competitor of Burger King. 4The District Court granted 

### summary judgment

### to M-W-M. Morton appeals. 

### ISSUE 1 Did the District Court err by granting summary judgment toMW-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. DtAgostinov. 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. D8Agnostinov. 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 drawnmust be resolved in favor of thenonmovingparty. &&g, 781P.2d at 278; Cereck v. Albertsons, Inc. (1981), 195Mont. 409, 637 P.2d 509. If themoving party has met itsburden ofproof, the nonmoving party has the burden of showing that a genuine issue of material fact exists or that themoving 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 nonmovingparty 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 isbased on the lower court's findingsof fact and conclusion that therewere no disputed issuesof fact. These findings and conclusion are not supportedby 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 formaintaining 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 6as 'Ireasonablejob related grounds for dismissalbased 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, iswhether 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 thebusiness." Kestell v. Heritage Health Care Corp. (Mont. 1993), 858 P.2d 3, 7, 50 St.Rep. 919, 922,citing Buckv. BillingsMontana 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 legitimaterightto 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 forhis 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 Mortonwhether 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, consistingofvarious court filingsand 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), 250Mont. 320, 820 P.2d 1285. Where the record shows genuine issues of fact and theparties relatewidely divergent reasons forMortonrstermination,thetrier of fact must resolve those issues and determinewhether 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 KingNo. 1666. Accordingly, even if Plaintiffwas wrongfully discharged, shesufferednodamages, 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 inhours 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 concurrentlyand 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.

Chief Justice 

# a\We 

### concur:February1, 1994 CERTIFICATE

### OFSERVICE 1herebycertifythatthefollowingorderwassentbyUnitedStatesmail,prepaid,tothefollowing named:

JOHNF.LYNCH LynchLawFirm P.O.Box2265 GreatFalls,

### MT 59403 RichardDzivi TonjaD.Schaff RICHARDDZM,P.C. P.O.Box1291 GreatFalls,

### MT59403-1291



### EDSMITH CLERK

### OF

### THESUPREMECOURT STAF

### OFMONTANA