Foster v. Albertsons, Inc., 91-346

• Citation: 835 P.2d 720,254 Mont. 117
• Decision Date: 27 July 1992
• Docket Number: No. 91-346,91-346
• Parties: , 143 L.R.R.M. (BNA) 2231 Barbara FOSTER, Plaintiff and Appellant, v. ALBERTSONS, INC., a corporation doing business under the laws of the State of Montana; and Bob Engle and Ken Blackburn, as individuals, Defendants and Respondents.
• Court: United States State Supreme Court of Montana

Page 720

835 P.2d 720

254 Mont. 117, 143 L.R.R.M. (BNA) 2231

Barbara FOSTER, Plaintiff and Appellant, v. ALBERTSONS, INC., a corporation doing business under the

laws of the State of Montana; and Bob Engle and

Ken Blackburn, as individuals,

Defendants and Respondents.

No. 91-346.

Supreme Court of Montana.

Submitted May 28, 1992.

Decided July 27, 1992.

Peter Michael Meloy argued, Meloy Law Office, Helena, for plaintiff and appellant.

Donald Robinson argued, Poore, Roth & Robinson, Butte, William Sternhagen, Keller, Reynolds, Drake, Sternhagen & Johnson, Helena, for defendants and respondents.

GRAY, Justice.

This appeal arises from the District Court of the First Judicial District, Lewis and Clark County. The appellant, Barbara Foster, appeals that portion of the judgment entered in the case which was adverse to her following a jury trial on claims she brought against the respondents, Albertsons, Inc., Bob Engle and Ken Blackburn, after she was discharged from employment. We affirm in part, reverse in part and remand.

The appellant raises the following issues:

1. Did the District Court err in directing a verdict in favor of the respondents on the appellant's breach of the implied covenant of good faith and fair dealing and wrongful discharge claims?

2. Did the District Court err in directing a verdict in favor of the respondents on the appellant's intentional infliction of emotional distress claim?

The appellant began working for Albertsons in Helena as a grocery clerk in January 1984. She was employed under the terms of a collective bargaining agreement between Albertsons and the United Food and Commercial Workers International Union. The collective bargaining agreement contained a "just cause" provision for the discharge of an employee.

The appellant testified that during the course of her employment with Albertsons respondent Bob Engle, who was the manager of the store, sexually harassed her. She testified that Engle made lewd comments, solicited social contact and fondled her while at work. She further testified that she consistently rejected Engle's advances and did her best to ignore his sexual innuendos and comments. Engle denied sexually harassing the appellant in any manner.

Testimony also reflected that in early March 1987, Engle and respondent Ken Blackburn, the loss prevention manager at Albertsons, began to suspect that the appellant was mishandling company funds and failing to record certain customer purchases. "Special shoppers" or "test shoppers" were hired to pose as impatient customers who would leave the correct change for their purchase at the checkstand during another customer's transaction. Company policy required that if an impatient customer left money, the money was to be recorded as a separate sale immediately after completing the other customer's transaction. The appellant was aware of this procedure.

Engle and Blackburn were unable to locate purchases made by the test shoppers on the cash register tapes from the appellant's till. On March 16, 1987, Engle and Blackburn summoned the appellant into the store office; during the time she was there her employment was terminated. The appellant testified that she was forced to remain in the office for more than two hours and that Engle forced her back in her chair each time she sought to leave. Engle and Blackburn each testified that the appellant was not detained against her will and not physically pushed back in her chair. While in the office, the appellant did write and sign a statement admitting to dishonest behavior.

After her termination, the appellant filed a claim of sex discrimination against Albertsons and Engle with the Montana Human Rights Commission asserting that she had been sexually harassed by Engle throughout the course of her employment with Albertsons. After receiving a "right to sue" letter from the Human Rights Commission, the appellant filed the present action in the District Court on March 11, 1988. The appellant never sought to utilize the grievance procedure under the collective bargaining agreement covering her employment with Albertsons.

The appellant's complaint named Albertsons and Engle and Blackburn, individually, as defendants. Although not artfully drafted, her complaint appears to have sought recovery of damages for the following claims:

Count I--Breach of the implied covenant of good faith and fair dealing;

Count II--False imprisonment;

Count III--Wrongful damage to her marriage;

Count IV--Assault and battery;

Count V--Negligent and intentional infliction of emotional distress Count VI--Defamation; and

Count VII--Wrongful discharge.

The case was tried to a jury. Upon motion of the respondents, the court directed a verdict in their favor on the defamation claim on the grounds that there was no evidence that the defamatory matter was "published." It also directed a verdict on the implied covenant and wrongful discharge claims based on its conclusion that the claims were preempted by federal labor law because the appellant's employment with Albertsons was covered by a collective bargaining agreement. On its own motion, the court directed a verdict in favor of the respondents on the intentional infliction of emotional distress claim based on its conclusion that the tort was not recognized in Montana as a separate cause of action. It also directed a verdict against the appellant on the wrongful damage to marriage claim on the grounds that, while it might constitute an element of damages, it could not be a separate count.

The case was submitted to the jury by way of a special verdict form which stated as follows:

We, the jury in the above-entitled matter, find the following special verdict in this case:

Issue No. 1: Did the Defendants commit an assault or battery against the Plaintiff?

Answer: Yes No

Issue No. 2: Did the Defendants engage in sex discrimination against the Plaintiff in violation of the Constitution of the State of Montana?

Answer: Yes No

Issue No. 3: Did the Defendants falsely imprison the Plaintiff?

Answer: Yes No

If you answered "no" to Issues 1, 2, and 3, then proceed no further. Have your foreperson sign this verdict and inform the Bailiff that you have reached a verdict. If you answered Issue Nos. 1, 2, and/or 3 "yes", then answer the following:

Issue No. 4: [T]he amount of money awarded to the Plaintiff for her losses is $ ________.

Issue No. 5: Did the Defendants act in a wilful, wanton, reckless and malicious fashion against the Plaintiff, justifying an award of punitive damages?

Answer: Yes No

(Note: Eight of you must agree to your answer to each issue).

In relation to Issue No. 2 of the special verdict form, the jury was given an instruction which set forth in its entirety Article II, Section 4, of the Montana Constitution:

INSTRUCTION NO. 19

The dignity of the human being is inviolable. No person shall be denied the equal protection of the laws. Neither the state nor any person, firm[,] corporation, or institution shall discriminate against any person in the exercise of his civil or political rights on account of race, color, sex, culture, social origin or condition, or political or religious ideas.

The jury found for the appellant on the assault and battery and false imprisonment issues and for the respondents on the sex discrimination issue. The jury also found that the respondents' conduct toward the appellant justified an award of punitive damages. It awarded the appellant $5,000 in general damages and, in a separate post-trial proceeding, $5,000 in punitive damages. The appellant's motion to increase the punitive damages award was denied by the District Court. The appellant obtained new counsel and appealed.

I.

Did the District Court err in directing a verdict in favor of the respondents on the appellant's claims of breach of the implied covenant of good faith and fair dealing and wrongful discharge?

The District Court directed a verdict against the appellant as a matter of law on her claims of breach of the implied covenant of good faith and fair dealing and wrongful discharge. It concluded that the claims were preempted by Sec. 301 of the Labor Management Relations Act of 1947 (LMRA), 61 Stat. 156, 29 U.S.C. Sec. 185(a) because her employment with Albertsons was covered by a collective bargaining agreement. Our standard of review on appeal is whether the District Court's interpretation of the law is correct. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 803 P.2d 601.

Section 301 of the LMRA provides that:

Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this Act, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.

The United States Supreme Court has interpreted Sec. 301 as a congressional mandate to develop a unified federal common law to address labor contract disputes. Textile Workers Union v. Lincoln Mills (1957), 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972. In order to ensure a uniform interpretation of labor contract terms, federal labor law preempts, pursuant to Sec. 301, any state-law claim which is based on a collective bargaining agreement or is substantially dependent on an interpretation of its terms. Allis-Chalmers Corp. v. Lueck (1985), 471 U.S. 202, 220, 105 S.Ct. 1904, 1916, 85 L.Ed.2d 206, 221.

The District Court's conclusion that the appellant's claims were preempted by federal labor law was based on our decisions in Brinkman v. State (1986), 224 Mont. 238, 729 P.2d 1301; Smith v. Montana Power Co. (1987), 225 Mont. 166, 731 P.2d 924; and Fellows v. Sears, Roebuck and Co. (1990), 244 Mont. 7, 795 P.2d 484. In ruling on the question of preemption, the District Court stated:

The wrongful discharge action and the...