Timpano v. Cent. Mont. Dist. Six Human Res. Dev. Council, Inc.
| Decision Date | 30 August 2022 |
| Docket Number | DA 21-0379 |
| Citation | 409 Mont. 536,516 P.3d 655 |
| Parties | Jane TIMPANO, Plaintiff and Appellant, v. CENTRAL MONTANA DISTRICT SIX HUMAN RESOURCES DEVELOPMENT COUNCIL, INC., Defendant and Appellee. |
| Court | Montana Supreme Court |
409 Mont. 536
516 P.3d 655
Jane TIMPANO, Plaintiff and Appellant,
v.
CENTRAL MONTANA DISTRICT SIX HUMAN RESOURCES DEVELOPMENT COUNCIL, INC., Defendant and Appellee.
DA 21-0379
Supreme Court of Montana.
Submitted on Briefs: March 2, 2022
Decided: August 30, 2022
For Appellant: Torger Oaas, Attorney at Law, Lewistown, Montana
For Appellee: Jean E. Faure, Jason T. Holden, Faure Holden Attorneys at Law, P.C., Great Falls, Montana
Justice Dirk Sandefur delivered the Opinion of the Court.
¶1 Jane Timpano appeals the July 2021 judgment of the Montana Tenth Judicial District Court, Fergus County, granting summary judgment to her former employer, Central Montana District Six Human Resources
Development Council, Inc. (HRDC), on her asserted wrongful discharge claims under the Montana Wrongful Discharge From Employment Act (WDEA), Title 39, chapter 2, part 9, MCA. We address the following restated issue:
Whether the District Court erroneously granted summary judgment to Timpano's former employer on the damages element of her wrongful discharge claims due to failure to mitigate
damages in accordance with § 39-2-905(1), MCA ?
Reversed and remanded.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 HRDC employed Timpano full time in Lewistown, Montana, for approximately 20 years, most recently as a full-time Program Manager at the annual salary of $42,265.60, plus fringe benefits. Timpano holds a bachelor's degree in elementary education and during her HRDC tenure also regularly performed various part-time support functions in her husband's retail gun business, usually on weeknights and weekends, for which she received no employment income. Her gun shop functions included, inter alia , performing various record and bookkeeping tasks and assisting her husband with out-of-town weekend gun shows approximately 15 weekends per year.
¶3 On June 30, 2017, HRDC discharged Timpano from employment, on the apparent ground of perceived unsatisfactory performance, despite the fact that it gave her satisfactory ratings on her most recent written performance appraisal dated May 15, 2017, for the period of April 2016 through April 2017.1 She was almost 65 years old at the time of the unexpected discharge. She later testified that she had previously been "thinking about" retiring at the end of 2017 at age 65 because she "thought that might be a good ... time to retire."
¶4 Following her discharge from HRDC on June 30, 2017, Timpano neither applied, nor even searched, for any alternative full-time paid employment. She later testified that she wanted to return to paid employment, but only on a part-time basis so that she could more conveniently perform her unpaid gun shop assistance functions on weekdays, particularly on Fridays, rather than weeknights. At some point later in 2017, she inquired about an available teacher's aide position with the local Head Start program in Lewistown, but then did not ultimately apply for the position because it was a Wednesday-Thursday-Friday position that would interfere with her desired weekday performance of her unpaid gun shop functions.
¶5 On June 27, 2018, over a year after her discharge from HRDC, Timpano filed district court wrongful discharge claims pursuant to §§ 39-2-904(1)(b), (c), and -905(1), MCA, alleging that HRDC discharged her without "good cause," as defined by § 39-2-903(5), MCA, and in
violation of a specified provision of its own personnel policy. Approximately six weeks later, on August 13, 2018, she applied for part-time employment as a substitute teacher with the Lewistown School District. The substitute teacher position involved unscheduled, on-call work assigned by the district to persons on its substitute teacher roster who were available when called as the need arose. Because she was seeking only part-time employment, Timpano did not inquire as to whether the school district had any full-time professional or "paraprofessional" positions available for which she might be qualified if interested. The school district immediately accepted and approved her substitute teacher application in August 2018, after which she began accepting various substitute teacher assignments on a spot-work basis when called. She later testified, however, that she often notified the school district in advance to avoid conflicts with her weekly gun shop functions, particularly on Fridays, so that the district would not call her from its substitute teacher roster on those occasions. Following her discharge from HRDC, Timpano neither applied for, nor even searched for, any comparable full-time employment that might have been available in the Lewistown area. The only alternative paid employment for which she applied was the part-time,
spot-work substitute teacher position with the Lewistown School District.
¶6 On February 26, 2021, HRDC filed a motion for summary judgment on Timpano's asserted wrongful discharge claims on the asserted ground that the damages elements of those claims failed as a matter of law on the M. R. Civ. P. 56 factual record because she failed to reasonably mitigate her claimed damages by seeking comparable full-time employment after HRDC discharged her. In July 2021, the District Court granted summary judgment to HRDC and accordingly dismissed Timpano's asserted wrongful discharge claims with prejudice. Timpano timely appeals.
STANDARD OF REVIEW
¶7 We review district court summary judgment rulings de novo for conformance to the applicable standards specified in M. R. Civ. P. 56. Dick Anderson Constr., Inc. v. Monroe Prop. Co. , 2011 MT 138, ¶ 16, 361 Mont. 30, 255 P.3d 1257. Summary judgment is proper only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. M. R. Civ. P. 56(c)(3). A genuine issue of material fact is a fact materially inconsistent with proof of an essential element of a claim or defense at issue.
Mt. W. Bank, N.A. v. Mine & Mill Hydraulics, Inc. , 2003 MT 35, ¶ 28, 314 Mont. 248, 64 P.3d 1048. The party seeking summary judgment has the initial burden of showing a complete absence of any genuine issue of material fact on the Rule 56 record and that the movant is accordingly entitled to judgment as a matter of law. Weber v. Interbel Tel. Coop. , 2003 MT 320, ¶ 5, 318 Mont. 295, 80 P.3d 88.2 The burden then shifts to the opposing party to either show the existence of a genuine issue of material fact precluding summary judgment or that the moving party is nonetheless not entitled to judgment as a matter of law. Osterman v. Sears, Roebuck & Co. , 2003 MT 327, ¶ 17, 318 Mont. 342, 80 P.3d 435 (citing Bruner v. Yellowstone Cty. , 272 Mont. 261, 264, 900 P.2d 901, 903 (1995) ).
¶8 To meet the responsive Rule 56 burden of demonstrating that a genuine issue of material fact precludes summary judgment, the non-moving party must in proper form, and by more than mere denial, speculation, or pleading allegation, "set out specific facts" showing the existence of a genuine issue of material fact. M. R. Civ. P. 56(e)(2). See also Grimsrud v. Hagel , 2005 MT 194, ¶ 14, 328 Mont. 142, 119 P.3d 47 ; Osterman , ¶ 34 ; Old Elk v. Healthy Mothers, Healthy Babies, Inc. , 2003 MT 167, ¶¶ 15-16, 316 Mont. 320, 73 P.3d 795 ; Klock v. Town of Cascade , 284 Mont. 167, 174, 943 P.2d 1262, 1266 (1997) ; Mysse v. Martens , 279 Mont. 253, 262, 926 P.2d 765, 770 (1996) ; Eitel v. Ryan , 231 Mont. 174, 178, 751 P.2d 682, 684 (1988). The court must view the Rule 56 factual record in the light most favorable to the non-moving party, with all reasonable inferences drawn in favor thereof. Weber , ¶ 5 ; Gamble Robinson Co. v. Carousel Properties , 212 Mont. 305, 312, 688 P.2d 283, 286-87 (1984). The court has no duty, however, to anticipate or speculate regarding contrary material facts. Gamble , 212 Mont. at 312, 688 P.2d at 287 (internal citations omitted). Whether a genuine issue of material fact exists or whether a party is entitled to judgment as a matter of law are conclusions of law reviewed de novo for correctness. Ereth v. Cascade Cty. , 2003 MT 328, ¶ 11, 318 Mont. 355, 81 P.3d 463. See also Speer v. Mont. Dep't of Corrections , 2020 MT 45, ¶ 17, 399 Mont. 67, 458 P.3d 1016 (applications and conclusions of law are subject to de novo review for correctness).
DISCUSSION
¶9 Whether the District Court erroneously granted summary judgment
to Timpano's former employer on the damages element of her wrongful discharge claims due to failure to mitigate damages in accordance with § 39-2-905(1), MCA ?
¶10 As pertinent here, the essential elements of proof of a WDEA wrongful discharge claim are: (1) a "discharge" from non-probationary employment as defined by § 39-2-903(2), (3), and -904(3), MCA (defining "discharge,"
"employee," and "at-will" nature of employment during probationary period); (2) a discharge without "good cause," as...
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