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Henrichs v. Safeway, Inc.

United States District Court, D. Montana, Butte Division

November 20, 2014

SAFEWAY, INC., a corporation, Defendant.


JEREMIAH C. LYNCH, Magistrate Judge.

This wrongful discharge case comes before the Court on Defendant Safeway Inc.'s ("Safeway") motion for summary judgment on Plaintiff Brent Henrichs' ("Henrichs") claims under the Montana Wrongful Discharge from Employment Act, Mont. Code Ann. § 39-2-901 et seq. The motion is granted in part and denied in part as set forth below.

I. Background[1]

Dan Cruson ("Cruson") has been the District Manager for Safeway in Montana since 1995. (Doc. 22, ¶ 1). At that time, Henrichs was an assistant store manager at one of Safeway's Missoula stores. (Doc. 22, ¶ 1). In 1997 or 1998, Cruson promoted Henrichs to the position of store manager at the Safeway store in Anaconda. (Doc. 22, ¶ 2).

In October 2005, Henrichs made arrangements with the local Pepsi distributor, Harrington Bottling Company, for his then 18-year-old son Kyle to work stocking Pepsi products at the Anaconda Safeway store. (Doc. 22, ¶ 8). When the job proved too difficult for Kyle, who has autism, Henrichs' two younger children - Lynnsi and Matthew - took it over. Lynnsi was 14-years-old at the time and Matthew was only ten. Although Henrichs' children performed all of the work, Henrichs placed the job in his own name. Henrichs' name appears on all of the Harrington Bottling Company paperwork, and the paychecks were issued to him. (Doc. 22, ¶¶ 10-12; Doc. 22-4). Henrichs reported earnings from the job to the Internal Revenue Service ("IRS") and paid the taxes due. (Doc. 22, ¶ 17).

In December 2005, Cruson was visiting the Anaconda Safeway store when he saw Henrichs' ten-year-old son Matthew stocking Pepsi products. (Doc. 22, ¶ 4). Henrichs was not in the store that day, so Cruson spoke with the assistant store manager about why Matthew was doing the work. (Doc. 22-1, at 3; Doc. 22-2, at 11). When Henrichs heard that Cruson had been asking about why Matthew was stocking Pepsi products at the store, Henrichs sent Cruson an email explaining that "[t]his is my daughters job, she works for Pepsi on weekends stocking soda for them, " and Matthew "helps her with this when she has after school/weekend commitments." (Doc. 22-3).

Approximately one week later, Cruson spoke on the telephone with Henrichs about the situation and documented their conversation in writing. (Doc. 22, ¶6). Henrichs maintains he told Cruson during this conversation that the Pepsi job was in his own name. (Doc. 25, ¶ 6; Doc. 25-1, at 6). Cruson recalls matters differently and claims he was under the impression that Henrichs' daughter Lynnsi was the Pepsi distributor's employee.[2] Cruson's notes reflect that he told Henrichs he "was concerned that due to [Matthew's] age, and since he truly isn't the employee for Pepsi, that if he were to get hurt somehow, Safeway would be liable." (Doc. 22, ¶6). Cruson wrote that he "explained [his] concerns, and [Henrichs] said he understood and would stop [Matthew] from doing this immediately." (Doc. 22, ¶ 6). With that, Cruson considered the matter resolved and did not follow up or press the issue any further. (Doc. 22, ¶ 22).

But the record reflects that Matthew and his sister continued stocking Pepsi products for the next several years. (Doc. 22, ¶ ¶ 12, 14). In fact, Henrichs' children also started doing similar work for the local Coca-Cola distributor, Mile High Beverages. (Doc. 22, ¶ 13). The position with Mile High Beverages involved stocking Coca-Cola products not only at the Anaconda Safeway store, but also at Safeway's competitor, the Anaconda Albertsons store. (Doc. 22, ¶ 13). As with the Pepsi position, Matthew and Lynnsi did all of the work while Henrichs placed his own name on the employment paperwork, received the paychecks, and reported and paid taxes on the earnings. (Doc. 22, ¶ 13-17, Doc. 25, ¶ 3).

On February 3, 2012, Henrichs injured his knee while at work, and filed an injury report with Safeway that same day. (Doc. 25, ¶ 8). Later that month, Henrichs told Cruson that he needed to have surgery on his injured knee and would be unable to work for six to eight weeks. Henrichs sought coverage from his insurance company, but did not initially report his injury as a workplace injury or submit a workers' compensation claim.[3] (Doc. 25-1, at 7; Doc. 27-1, at 1). Henrichs explains that he and other Safeway store managers "were feeling a lot of pressure about the number of workmen's-comp claims through the district and the effect that it was going to have on store managers' bonuses" and says he "didn't want [his] workmen's comp claim to be the reasons that the rest of the district didn't achieve their goals and affect their bonuses or [his] bonus or Mr. Cruson's bonus." (Doc. 25-1, at 7).

In fact, Henrichs claims that Cruson treated him differently after he reported his injury and says he felt like his job was in jeopardy. (Doc. 25-1, at 7). Before Henrichs injured himself on the job, for example, Cruson visited the Anaconda store approximately once a month. But after Henrichs reported his injury, Cruson began visiting the store three to four times each month and was constantly calling. (Doc. 25-6, at 4). During a conference call on March 5, 2012, just days before Henrichs was scheduled to take leave for surgery, Cruson and another management employee berated Henrichs and criticized his job performance. (Doc. 25-11, at 5-7).

On March 9, 2012, Cruson and Safeway's Human Resource Representative, Steve Brezenski ("Brezenski"), met with Henrichs at the Anaconda Safeway store. Cruson provided Henrichs with his yearly 2011 evaluation and rated his performance as "satisfactory or above." (Doc. 25-5, at 19). Henrichs began his medical leave of absence after his shift that day, and returned to work approximately six weeks later, on May 7, 2012. (Doc. 25-5, at 20). Four days after Henrichs' return, Cruson provided him with a list of eleven items regarding his job performance that needed improvement or could result in his termination. (Doc. 25-5, at 20-21). Henrichs claims that as the summer wore on, Cruson unjustifiably criticized him and referred to him as a "whiner." (Doc. 25-1, at 8; 25-5, at 22).

Cruson recalls hearing from a representative of one of Safeway's vendors in August 2012 that Henrichs was working for the local Pepsi distributor and stocking Pepsi at the Anaconda Albertsons store. (Doc. 22, ¶ 34). Although the representative remembers the conversation differently (Doc. 25-7), it is undisputed that Safeway then initiated an investigation and learned that Henrichs had maintained outside employment with Harrington Bottling Company for several years. (Doc. 22, ¶¶ 35-37).

On September 14, 2012, Cruson and Brezenski met with Henrichs to discuss his outside employment. (Doc. 22, ¶ 37). Henrichs confirmed that he was named as the Pepsi distributor's employee and revealed that he was also named as an employee of the local Coca-Cola distributor, although he explained that his children had always performed all of the actual work associated with the two positions. (Doc. 22, ¶ 38; Doc. 25-5, at 10). On September 19, 2012, Safeway terminated Henrichs' employment for violating company "policy and procedure." (Doc. 22-13). Safeway takes the position that it discharged Henrichs because he failed to disclose his outside employment with Harrington Bottling Company and Mile High Beverages as required by Safeway's Code of Business Conduct.

On September 10, 2013, Henrichs commenced this action against Safeway in the Montana Third Judicial District Court, and Safeway later removed the case to this Court based on diversity jurisdiction.[4] (Doc. 1). Henrichs asserts claims under the Montana Wrongful Discharge from Employment Act, Mont. Code Ann. § 39-2-904(1)(a), (b), and (c), alleging that his termination was in retaliation for reporting a violation of public policy, was not for good cause, and was in violation of the express provisions of Safeway's written personnel policies. (Doc. 5, at 6). Henrichs seeks lost wages, fringe benefits, attorneys fees, and punitive damages. (Doc. 5, at 6-7). Safeway moves for summary judgment on all aspects of Henrichs' claims.

II. Summary Judgment Standards

A party is entitled to summary judgment under Federal Rule of Civil Procedure 56(c) "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." A party moving for summary judgment who does not have the burden of persuasion at trial must produce evidence that either: (1) negates an essential element of the non-moving party's claim, or (2) shows that the non-moving party does not have enough evidence of an essential element to ultimately carry his burden at trial. Nissan Fire & Marine Ins. Co. Ltd. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). Once the moving party has satisfied its burden, the non-moving party must go beyond the pleadings and designate by affidavits, depositions, answers to interrogatories, or admissions on file, "specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Cattrett, 477 U.S. 317, 324 (1986). An issue of fact is "genuine" if there is sufficient evidence for a reasonable fact finder to find for the non-moving party. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248-49 (1986). A fact is "material" if it may affect the outcome of the case. Id. at 248.

In considering a motion for summary judgment, the court "may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., 530 U.S. 130, 150 (2000); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). The Court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in the non-moving party's favor. ...

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