Stevenson v. Felco Industries, Inc.

2009 MT 299, 216 P.3d 763, 352 Mont. 303, 2009 Mont. LEXIS 440, 107 Fair Empl. Prac. Cas. (BNA) 324
CourtMontana Supreme Court
DecidedSeptember 4, 2009
DocketDA 08-0370
StatusPublished
Cited by29 cases

This text of 2009 MT 299 (Stevenson v. Felco Industries, Inc.) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stevenson v. Felco Industries, Inc., 2009 MT 299, 216 P.3d 763, 352 Mont. 303, 2009 Mont. LEXIS 440, 107 Fair Empl. Prac. Cas. (BNA) 324 (Mo. 2009).

Opinions

JUSTICE COTTER

delivered the Opinion of the Court.

¶1 Edward Stevenson sued his former employer, Felco Industries, claiming that Felco wrongfully discharged him on the basis of his age. Following a jury trial in the Fourth Judicial District Court in Missoula County, the jury ruled that Felco did not discriminate against Stevenson on the basis of age. Stevenson appeals. We affirm in part and reverse and remand in part.

ISSUES

¶2 While Stevenson presents three issues on appeal, only two issues are dispositive. A restatement of the dispositive issues is:

¶3 Did the District Court abuse its discretion by refusing Stevenson’s “motivating factor” jury instruction?

¶4 Did the District Court abuse its discretion in admitting the Human Rights Bureau’s Final Investigative Report?

FACTUAL AND PROCEDURAL BACKGROUND

¶5 Ed Stevenson began working as a sales person at Felco Industries on March 13, 1995. He traveled extensively for Felco, selling specialty equipment to contractors primarily in the eastern United States. Stevenson’s normal routine was to be on the road for three weeks followed by three weeks in the office. Stevenson claims he was never disciplined or reprimanded by his superiors during his time at Felco.

¶6 In 2004, Felco promoted Shawn Skinner, one of the company’s mechanical engineers, to general manager. Skinner was 29 years old at the time of his promotion. Charged with increasing profits, Skinner’s first step was to try to increase sales. In December 2004, Skinner instituted a 25 cold-call per day requirement for the sales staff for the days they were working in their offices. Stevenson failed to reach this daily quota. On April 28,2005, Stevenson was fired. At the time, he was 66 years old. He claimed that John Felton, Felco’s owner, told him ‘he was being let go because the company was moving in a new direction.” Felton, who still worked vigorously at the age of 82, testified that he fired Stevenson because Stevenson consistently failed to meet his cold-call quota. Stevenson was replaced by a male in his thirties, who had [305]*305limited sales experience.

¶7 Stevenson filed a claim with the Montana Department of Labor & Industry (DOLI), Human Rights Bureau (HRB), alleging that Felco discriminated against him on the basis of age when it terminated him. An HRB investigator conducted an investigation which included interviewing Stevenson and several Felco employees and reviewing numerous documents provided by Felco. In March 2006, the HRB issued its Final Investigative Report (Report) concluding that ‘Felco’s reasons for its actions [were] credible” and “that the allegations of Stevenson’s complaint are not supported by a preponderance of the evidence.” The investigator recommended “a finding of no reasonable cause to believe unlawful age discrimination occurred in this case.”

¶8 In April 2006, Stevenson filed a complaint in the Fourth Judicial District Court against Felco alleging wrongful discharge and age discrimination. On July 11,2006, the District Court issued a scheduling order which, among other things, instructed the parties to exchange exhibit and final witness lists and file all pretrial motions, including motions in limine seeking to resolve evidentiary conflicts, by February 19, 2007.

¶9 On February 19, 2007, Stevenson, through counsel, filed his witness and exhibit lists and a motion in limine with a brief in support. In his motion in limine, he requested that the District Court exclude reference to all comments or allegations that he was a difficult or subordinate employee and that Felco had any cause for firing him other than his failure to make the required number of cold calls.

¶10 On March 2, 2007, Felco filed its list of witnesses and exhibits. Felco’s exhibit list included the HRB Report finding no age discrimination by Felco. There is no record of a motion by Felco requesting an extension of time in which to file its witness and exhibit lists. Stevenson, however, did not object to Felco’s late disclosure of exhibits, nor did he move to file a late motion in limine in response to Felco’s exhibit list.

¶11 On April 25, 2007, the District Court filed its Pretrial Order, signed by both parties’ attorneys. The Pretrial Order contained a list of both parties’ exhibits and witnesses, and included the HRB Report. Also, on April 25, the court filed an order setting the jury trial. In this order the court, citing Hunt v. K-Mart Corp., 1999 MT 125, 294 Mont. 444, 981 P.2d 275, notified the parties that ‘[t]rial objections that could have been resolved by a pre-trial motion in limine will be deemed waived if not presented in a timely filed motion in limine.”

¶12 On September 27, 2007, Stevenson filed a motion in limine requesting that witnesses be excluded from the courtroom during the [306]*306trial, that collateral source evidence be excluded, that there be no argument or mention that a party has not called an available witness, and that there be no reference to the existence of motions in limine or any other effort to exclude evidence. Notably, this late motion and the brief in support of the motion did not mention or seek to exclude the HRB report.

¶13 On October 1, the District Court issued an order with respect to the September motion in limine, stating that the deadline for filing motions in limine was February 19, 2007. The court, nonetheless, gave Stevenson three options. Stevenson could (1) continue the trial to a later date to allow the motion to be fully briefed by both parties and the court to rule on it, (2) acknowledge that the motion had no merit and waive the substance of the motion, or (3) attempt to establish that it was impossible under any circumstances to have earlier anticipated the need for the motion. In response to the District Court’s order, Stevenson requested and was granted permission to withdraw the motion in limine.

¶14 A jury trial was held October 10-12, 2007, during which Felco presented the HRB Report to the court for admission. Stevenson’s counsel immediately obj ected to the admission of the HRB investigative report on the ground that it was hearsay and was inadmissible under our decision in Crockett v. City of Billings, 234 Mont. 87, 98, 761 P.2d 813, 820 (1988). The court inquired whether Stevenson had filed a motion in limine to exclude the evidence as required by the court’s scheduling order. Stevenson’s counsel replied that she had not. The District Court denied the motion, explaining that the scheduling order informed the parties that failure to file a timely motion in limine seeking exclusion of trial evidence would result in waiver of the right to object. The court further stated that it would have entertained a late motion in limine ‘if there’s any matter that comes to your attention after the deadline is [sic] for filing the motions and you could not have anticipated that the matter would be raised.” Lastly, the trial judge asked Stevenson’s counsel if she was surprised that Felco offered the HRB Report at trial. She admitted that she was not. The court therefore allowed Felco to introduce the HRB Report into evidence.

¶15 The jury returned a verdict for Felco after determining that Felco had not fired Stevenson on the basis of his age. Stevenson filed a timely appeal.

STANDARD OF REVIEW

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Cite This Page — Counsel Stack

Bluebook (online)
2009 MT 299, 216 P.3d 763, 352 Mont. 303, 2009 Mont. LEXIS 440, 107 Fair Empl. Prac. Cas. (BNA) 324, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stevenson-v-felco-industries-inc-mont-2009.