Casiano v. Greenway Enterprises, Inc.

• Decision Date: 09 May 2002
• Docket Number: No. 01-136.,01-136.
• Citation: 2002 MT 93,47 P.3d 432,309 Mont. 358
• Parties: Tony CASIANO, Plaintiff/Respondent/Cross-Appellant, v. GREENWAY ENTERPRISES, INC., Defendant/Appellant/Cross-Respondent.
• Court: Montana Supreme Court

47 P.3d 432

309 Mont. 358

2002 MT 93

Tony CASIANO, Plaintiff/Respondent/Cross-Appellant, v. GREENWAY ENTERPRISES, INC., Defendant/Appellant/Cross-Respondent.

No. 01-136.

Supreme Court of Montana.

Submitted on Briefs September 27, 2001.

Decided May 9, 2002.

Rehearing Denied May 30, 2002.

Palmer A. Hoovestal, Hoovestal & Kakuk, PLLC, Helena, Montana, For Appellant.

Candace Payne, Gary Davis, Luxan & Murfitt, PLLP, Helena, Montana, For Respondent. Justice JIM REGNIER delivered the Opinion of the Court.

¶ 1 Greenway Enterprises, Inc. ("Greenway") appeals from the rulings made by the First Judicial District Court, Lewis and Clark County, denying its: 1) third motion for summary judgment, 2) motion to discharge the jury, and 3) motion for judgment as a matter of law, or alternatively, for a new trial. We affirm.

¶ 2 The following issues are presented on appeal:

¶ 3 1. Did the District Court err in denying Greenway's third motion for summary judgment?

¶ 4 2. Did the District Court err in denying Greenway's motion to discharge the jury?

¶ 5 3. Did the District Court err in denying Greenway's motion for judgment as a matter of law, or alternatively, for a new trial?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 6 Greenway is a Montana corporation located in Helena, Montana. Tony Casiano ("Casiano") was hired by Greenway as a construction laborer in October 1997. On April 27, 1998, Casiano completed Greenway's six month probationary period. During Casiano's employment at Greenway, he worked on several projects, including the construction of a surgical center next to St. Peter's Hospital in Helena ("the Surgi-Center project").

¶ 7 On July 17, 1998, while working at the Surgi-Center project, Casiano was discharged from his employment by his supervisor, John Ellermeyer, for alleged insubordination. That same day, Jon Hoovestal, Vice President of Greenway, informed Casiano of Greenway's written internal grievance procedures. Greenway did not provide Casiano a written copy of its grievance procedures after his discharge.

¶ 8 On April 7, 1999, Casiano filed a complaint against Greenway under the Montana Wrongful Discharge Act alleging that: 1) his discharge was in retaliation for filing a worker's compensation claim in violation of § 39-71-317(1), MCA; 2) his discharge was not for good cause in violation of § 39-2-904(2), MCA; and 3) his discharge was in retaliation for refusing to violate public policy in violation of § 39-2-904(1), MCA.

¶ 9 On August 1, 2000, Greenway filed a third motion for summary judgment alleging Casiano's action was barred by § 39-2-911(2), MCA, since he failed to first exhaust Greenway's internal grievance procedures prior to filing his action in the District Court. Relying on our holding in Eadus v. Wheatland Memorial Hospital (1996), 279 Mont. 216, 926 P.2d 752, the District Court entered an order denying Greenway's motion on September 12, 2000. The court determined that Casiano's action was not barred by § 39-2-911, MCA, as Greenway did not provide Casiano a written copy of its internal grievance procedures within seven days after his discharge in compliance with § 39-2-911(3), MCA.

¶ 10 A jury trial commenced on October 16, 2000. After the jury was selected, sworn, and the venire were excused, Greenway's counsel moved to discharge the jury pursuant to Batson v. Kentucky (1986), 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69. Greenway alleged Casiano's counsel impermissibly exercised a peremptory challenge against a prospective juror based upon the prospective juror's social condition as a Helena business owner. Additionally, Greenway requested that Casiano's counsel state why a peremptory challenge was exercised against the prospective juror. The District Court denied Greenway's motion and did not require Casiano's counsel to state the reason employed in exercising a peremptory challenge against the prospective juror.

¶ 11 On October 19, 2000, the jury returned a special verdict finding that Casiano was not discharged in retaliation for filing a worker's compensation claim. The jury further found that Casiano was not discharged for good cause because Greenway violated the express provisions of its written personnel policy. The jury awarded Casiano damages in the amount $40,908.00.

¶ 12 On October 26, 2000, Greenway filed a motion for judgment as a matter of law, or alternatively, for a new trial claiming there was insufficient evidence to support the jury's damage award of $40,908.00. On November 16, 2000, the District Court denied Greenway's motion finding there was not a complete absence of credible evidence to support the jury's verdict. On the same day, the District Court entered judgment in the amount of $43,777.33 against Greenway. Greenway appeals.

STANDARD OF REVIEW

¶ 13 Our review of a district court's grant or denial of a motion for summary judgment is de novo. See Eadus v. Wheatland Memorial Hospital & Nursing Home (1996), 279 Mont. 216, 219, 926 P.2d 752, 754

(citation omitted). Therefore, we apply the same Rule 56, M.R.Civ.P., criteria as applied by the district court. See Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903. Pursuant to Rule 56, M.R.Civ.P.:

The movant must demonstrate that no genuine issues of material fact exist. Once this has been accomplished, the burden then shifts to the non-moving party to prove, by more than mere denial and speculation, that a genuine issue does exist. Having determined that genuine issues of fact do not exist, the court must then determine whether the moving party is entitled to judgment as a matter of law. We review the legal determinations made by a district court as to whether the court erred.

Bruner, 272 Mont. at 264, 900 P.2d at 903 (citations omitted).

¶ 14 In reviewing a district court's denial of a motion to discharge the jury based upon a Batson challenge, we will defer to the district court's findings of fact unless clearly erroneous, and will review the district court's application of the law de novo. See State v. Ford, 2001 MT 230, ¶ 7, 306 Mont. 517,

¶ 7, 39 P.3d 108, ¶ 7 (citations omitted).

¶ 15 We will not reverse a district court's denial of a motion for judgment as a matter of law unless there is a complete absence of credible evidence to support the jury's verdict. See Kneeland v. Luzenac America, Inc., 1998 MT 136, ¶ 53, 289 Mont. 201,

¶ 53, 961 P.2d 725, ¶ 53 (citations omitted). In reviewing the evidence, we view the evidence in the light most favorable to the prevailing party. See Kneeland, ¶ 51 (citations omitted).

¶ 16 We review a district court's denial of a motion for a new trial for an abuse of discretion. Kneeland, ¶ 54 (citation omitted).

DISCUSSION

ISSUE ONE

¶ 17 Did the District Court err in denying Greenway's third motion for summary judgment?

¶ 18 Greenway contends Casiano's wrongful discharge action is precluded by § 39-2-911(2), MCA, because Casiano failed to exhaust its internal grievance procedures prior to filing his action in the District Court. Additionally, Greenway asserts the requirements of § 39-2-911(3), MCA, were satisfied since it provided Casiano a written copy of its grievance procedures during his employment, and Jon Hoovestal, Vice President of Greenway, expressly told Casiano about its internal grievance procedures and how to facilitate such procedures on the day of his discharge. Greenway alleges that although it did not provide Casiano a written copy of its grievance procedures within seven days of his discharge, Hoovestal's oral explanation equates to supplying a copy of its grievance procedures to Casiano in compliance with § 39-2-911(3), MCA. Greenway further claims the facts presented in Eadus are distinguishable from the facts in this case, as there was no evidence in Eadus that the employer's grievance procedure was orally explained to the employee.

¶ 19 Casiano responds that Greenway's failure to provide him a written copy of its internal grievance procedures within seven days of his discharge, as required by § 39-2-911(3), MCA, precludes Greenway from availing itself of the defense set forth in § 39-2-911(2), MCA, pursuant to our decision in Eadus. Casiano points out that the facts presented in Eadus are analogous to the facts presented in the case at hand. Most notably, the employee in Eadus, as here, was provided a written copy of the employer's internal grievance procedures during her employment, but was not provided another copy within seven days of her discharge. Further, the employer in Eadus, as here, notified the employee of its written internal grievance procedures on the day of her discharge. Casiano therefore contends we should affirm the District Court's denial of Greenway's third motion for summary judgment. We agree.

¶ 20 Section 39-2-911(3), MCA, states:

If the employer maintains written internal procedures under which an employee may appeal a discharge within the organizational structure of the employer, the employer shall within 7 days of the date of the discharge notify the discharged employee of the existence of such procedures and shall supply the discharged employee with a copy of them. If the employer fails to comply with this subsection, the discharged employee need not comply with subsection (2).

[Emphasis added.]

¶ 21 We held in Eadus that the plain language of § 39-2-911(3), MCA, precludes an employer from availing itself of the defense set forth in § 39-2-911(2), MCA, if the employer fails both to notify the discharged employee of its internal grievance procedures and to provide the employee a written copy of its internal grievance procedures within seven days of the employee's discharge. See Eadus, 279 Mont. at 222,

926 P.2d at 756. Here, it is undisputed that Greenway notified Casiano of its internal grievance procedures on the day of his discharge, but failed to provide him a written copy of the procedures within seven days of his discharge. Consequently, we conclude that Greenway did not comply with §...