Tonack v. Montana Bank of Billings

854 P.2d 326, 258 Mont. 247, 50 State Rptr. 518, 1993 Mont. LEXIS 140
CourtMontana Supreme Court
DecidedMay 13, 1993
Docket92-343
StatusPublished
Cited by22 cases

This text of 854 P.2d 326 (Tonack v. Montana Bank of Billings) 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
Tonack v. Montana Bank of Billings, 854 P.2d 326, 258 Mont. 247, 50 State Rptr. 518, 1993 Mont. LEXIS 140 (Mo. 1993).

Opinions

JUSTICE McDONOUGH

delivered the Opinion of the Court.

Montana Bank of Billings appeals from a judgment entered against it in the District Court for the Thirteenth Judicial District, Yellowstone County. The court awarded Betty L. Tonack $111,270 in damages on her claims of wrongful discharge and age discrimination. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

We restate the dispositive issues as:

1. Are certain findings of fact concerning the claim of violation of the Age Discrimination in Employment Act clearly erroneous?

2. Did the District Court incorrectly interpret or misapply the provisions of the Age Discrimination in Employment Act?

3. Did the District Court incorrectly interpret or misapply the provisions of the Wrongful Discharge Act?

Betty Tonack began working for the Montana Bank of Sidney in 1981. When she began working there, Tonack held a teller position. She was promoted to teller supervisor. In October 1988, she took a job with the Montana Bank of Billings, with which the bank in Sidney was affiliated. When she moved to Billings, she became the bank’s Financial Services Representative (FSR).

■ In January of 1990, Tonack’s performance as an FSR was evaluated as fully satisfactory; “more toward the excellent side.” She was given additional duties and responsibilities as a teller supervisor in addition to her duties as the FSR.

In May 1990, Lynette Kiedrowski became Tonack’s new supervisor. In August 1990, after irregularities were discovered in a bank audit, Kiedrowski placed Tonack on a 30-day probation. The irregularities included a theft that had occurred in the travelers check area of the bank. The area in which the theft occurred was not under Tonack’s supervision and the theft occurred while Tonack was away on vaca[251]*251tion. When she placed Tonack on probation, Kiedrowski also relieved her of all duties other than her FSR duties.

While she was still on probation, Tonack became aware that the bank had ordered calling cards prepared for a newly-hired bank employee, Rhonda Kreamer, which showed Kreamer’s job title as FSR. The bank had only one FSR position. Also, Kiedrowski instructed Tonack to cross-train Kreamer to serve as backup FSR.

During the week the training was to occur, Kiedrowski was out of town. The person who had been expected to cover for Kreamer during training failed to report to work. Tonack therefore decided to postpone the training. Kreamer resigned. When Kiedrowski returned, she immediately met with Tonack and terminated Tonack’s employment. Tonack was 49 years old at that time.

The parties waived jury trial and the case was tried to the court. After hearing the evidence, the court concluded that Tonack was terminated from her employment in violation of both the Montana Wrongful Discharge From Employment Act (Wrongful Discharge Act), §§ 39-2-901 to 914, MCA, and the federal Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634. It awarded Tonack damages under the Wrongful Discharge Act for four years of future lost wages and benefits. In addition, the court awarded damages under the ADEA, calculating those damages from the last date of damages awarded under the Wrongful Discharge Act to Tonack’s expected date of retirement.

I

Are certain findings of fact concerning the claim of violation of the Age Discrimination in Employment Act clearly erroneous?

The bank challenges eighteen of the District Court’s findings of fact. Here, we address only those findings relating to the ADEA claim.

This Court will affirm findings of fact if they are not clearly erroneous; that is, if they are supported by substantial evidence, the trial court has not misapprehended the effect of the evidence, and this Court is not left with a definite and firm conviction that a mistake has been made. Interstate Production Credit v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287. The credibility and weight given evidence and witnesses by the trial court must be granted great weight on appeal. Morning Star Enterprises v. R.H. Grover (1991), 247 Mont. 105, 113, 805 P.2d 553, 558. It is the duty of the trial court, [252]*252not this Court, to resolve conflicts in the evidence. Wood v. Ulmer’s Car and Truck (1989), 236 Mont. 353, 359, 769 P.2d 1264, 1268.

The bank challenges the findings that there were no reviews of Tonack’s performance as FSR during her 30 days of probation and that her performance in that position was satisfactory. The record contains Kiedrowski’s notes made following the meeting in which she placed Tonack on probation, but we do not consider those informal notes as a performance review. Tonack’s last written performance evaluation of record was done by Kiedrowski in May 1990. That evaluation indicated that Tonack was performing “at standard” as FSR/CSR Supervisor. Tonack’s exhibits establish that she received the bank’s “MVP” award for outstanding sales efforts for the month of September 1990, supporting the finding that her performance as FSR was in fact above average.

The Bank claims there is no evidence to support the findings that Tonack was replaced by a substantially younger employee. A portion of Kiedrowski’s deposition appended to a brief filed in District Court established that Rhonda Kreamer withdrew her resignation and assumed some of Tonack’s duties after Tonack’s employment was terminated. Tonack testified at trial that Kreamer “was a much younger person than I.”

The bank challenges several findings concerning statements of George Balback, the president of Montana Bancsystem, the holding company for the bank. Gary Nichols, vice-president of the bank until August of 1990, testified about conversations he had with Balback between January and August of 1990. In those conversations, Balback expressed that he did not believe Tonack was right for her position because of her age and background. Although the bank contends that there was no testimony that Balback said Tonack should be fired because of her age, Nichols’ testimony is clearly to that effect. Nichols testified that Balback stated that he had encouraged those responsible to make a change because he did not want Tonack in the FSR position and that he felt Kiedrowski would “get it handled.”

The bank challenges the finding that Balback could influence hiring and firing. That finding is supported by Nichols’ testimony that Balback had the authority to prevent him from making Tonack teller supervisor.

We hold that substantial evidence supports the above findings and that the court did not misapprehend the effect of the evidence. The findings do not leave us with the impression that a mistake has been made.

[253]*253II

Did the District Court incorrectly interpret or misapply the provisions of the ADEA?

The bank claims that Tonack’s ADEA case was fatally flawed in that Tonack did not establish the necessary element of pretext.

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Tonack v. Montana Bank of Billings
854 P.2d 326 (Montana Supreme Court, 1993)

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Bluebook (online)
854 P.2d 326, 258 Mont. 247, 50 State Rptr. 518, 1993 Mont. LEXIS 140, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tonack-v-montana-bank-of-billings-mont-1993.