Winsor v. State

1

2024 MT 43N

MIKE WINSOR, Plaintiff and Appellee, v. STATE OF MONTANA, by and through the MONTANA STATE AUDITOR AND COMMISSIONER OF SECURITIES & INSURANCE, Defendant and Appellant.

No. DA 23-0298

Supreme Court of Montana

March 5, 2024

Submitted on Briefs: February 7, 2024

APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. XCDV-2021-113 Honorable Olivia Rieger, Presiding Judge

For Appellant: Amy D. Christensen, Vicki Bignell, Christensen & Prezeau, PLLP, Helena, Montana Mark Mattioli, Legal Counsel, Commissioner of Securities and Insurance, Helena Montana

For Appellee: Philip A. Hohenlohe, Law Office of Philip Hohenlohe, PLLC, Helena, Montana

OPINION

Ingrid Gustafson, Justice

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2 Defendant and Appellant State of Montana, by and through the Montana State Auditor and Commissioner of Securities &Insurance (State), appeals the Order on Defendant's Motion for Summary Judgment issued January 18, 2023, and the denial of its M. R. Civ P. 50 motion for judgment as a matter of law on Plaintiff and Appellee Mike Winsor's emotional distress claim. We affirm.

¶3 Mike Winsor (Winsor) served as a staff attorney in the Office of the Commissioner of Securities and Insurance (CSI) from 2006 to 2020. In July 2019, Winsor was placed on a Work Agreement due to asserted performance and conduct issues which were disputed by Winsor. The Work Agreement required Winsor to accurately report his time and tasks. On January 6 2020, Winsor was suspended with pay and advised CSI was conducting an investigation into alleged discrepancies between his time tracking reports and his activities in the office. On January 27, 2020, Winsor was provided a due process letter alleging discrepancies, sufficient to justify termination, between his time tracking reports and office surveillance videos for a thirteen work-day period in November and December 2019. Following Winsor providing written response to the January 27, 2020 letter, CSI terminated Winsor's employment on February 12, 2020. Pursuant to the termination notice of February 12, 2020, Winsor's supervisor, Michelle Dietrich (Dietrich), had reviewed video from the weeks of November 26-28, December 2-6, and December 9-13, 2020- reviewing a total of thirteen days of video. Dietrich asserted, "[t]he video showed significant discrepancies between what you reported on your time tracking sheets and your actual whereabouts[,]" concluding the "evidence reviewed demonstrates a falsification of time records, theft, and dishonesty" for which Winsor had "not provided any reasonable explanation for the approximately forty hours of time in which [Winsor was] not working over the thirteen-day time period reviewed or the discrepancies in [Winsor's] time tracking records." As such, Dietrich terminated his employment, effective immediately.

¶4 On February 5, 2021, Winsor brought suit against CSI alleging claims of discrimination, violation of the Government Code for Fair Practices, and wrongful discharge from employment. He later amended his complaint to add defamation and infliction of emotional distress claims. On September 23, 2022, CSI filed Defendant's Motion for Summary Judgment on all five claims. CSI asserted entitlement to judgment on Winsor's Wrongful Discharge from Employment Act (WDEA) claim asserting there was good or just cause to terminate him asserting, "Winsor's time tracking reports were compared to the video depicting his whereabouts, and CSI found numerous instances when Winsor was either out of the building or engaged in conduct that was inconsistent with his report that he was performing specific work tasks at those times" and his inaccurate time tracking reports constituted falsification of records and good cause for his termination. CSI also asserted Winsor's emotional distress claim was barred by the exclusive remedy provision of the WDEA, asserting it was completely and inextricably intertwined with his termination. After full briefing and hearing, the District Court issued its written order of January 13, 2023, in which it concluded there were issues of material fact precluding summary judgment on Winsor's claims under the WDEA that there was no good or just cause to terminate his employment and that in terminating his employment CSI had violated an express provision of its own personnel policy^[1] and also determining issues of material fact precluded summary judgment on Winsor's claim for infliction of emotional distress.^[2]

¶5 The matter proceeded to a jury trial on the remaining claims-WDEA claims that CSI did not have good or just cause to terminate Winsor and Winsor's claim that CSI inflicted emotional distress on him occurring before his termination. During jury selection, CSI explained to the jury, "[i]f you are selected as a juror, there's essentially two things that you're going to have to decide. One is if CSI discharged Mike Winsor with good cause or just cause, and the other is whether he - whether CSI inflicted emotional distress before he was terminated."

¶6 At the close of evidence, CSI orally made a Rule 50 motion for judgment as a matter of law on the emotional distress claim, asserting "[w]e do not believe that evidence has been offered that supports serious and severe emotional distress as a reasonably foreseeable consequence of the defendant's negligent or intentional act." The District Court denied the motion, reasoning, "[t]he jury is capable of deteimining whether emotional distress claimed by Mr. Winsor is serious or severe. They are, the jurors, the best situated individuals to determine whether and to what extent the defendant's conduct, if any caused emotional distress."

¶7 At the close of trial, the District Com! instructed the juiy that with regard to Winsor's claims under Montana's WDEA "there is no right under any legal theory for damages for pain and suffering, emotional distress, or punitive damages . . . and no claim is being made" for such related to these claims. The court also instructed the jury as to Winsor's emotional distress claim:

[Winsor] alleges that during the period of time prior to his termination, defendant subjected him to emotional distress. A party suffering harm as a result of the negligent or intentional infliction of serious or severe emotional distress by another party is entitled to recover damages from that paity for such harm. Plaintiff is not entitled to emotional distress damages arising out of his discharge from employment.

In closing, Winsor's counsel reiterated that Winsor was not entitled to and not claiming emotional distress damages resulting from his termination and that Winsor's emotional distress claim was totally separate and independent from his wrongful discharge claim. CSI likewise argued in closing, "[w]hen you go in there to think about the emotional distress claim, you can only think about what happened before the termination, not award damages because of the termination as it relates to emotional distress."

¶8 The District Court provided the jury a verdict sheet in which it responded to questions.^[3] With regard to Winsor's WDEA claims, pursuant to the Verdict Sheet and the court's subsequent polling of the jury, the jury concluded, on a 10-2 vote, that Winsor failed to prove CSI terminated his employment without good cause and on an 8-4 vote, that Winsor failed to prove CSI violated its personnel policy by terminating his employment without just cause. As to Winsor's emotional distress claim, on a unanimous 12-0 vote, the jury determined Winsor proved CSI "negligently or intentionally inflicted serious or severe emotional distress on [Winsor] not arising out of [Winsor's] termination from employment" and awarded him $232,000 in damages for this claim.

¶9 CSI appeals, raising two issues, which we restate as follows: (1) whether the District Court erred by denying its motion for summary judgment on Winsor's emotional distress claim, and (2) whether the District Court erred by denying CSI's Rule 50 motions for judgment on the emotional distress claim.

¶10 We review summary judgment orders de novo, performing the same M. R. Civ. P. 56 analysis as the district court. Howlett v. Chiropractic Ctr., P.C., 2020 MT 74 ¶ 14, 399 Mont. 401, 460 P.3d 942. "The purpose of summary judgment is to dispose of those actions which do not raise genuine issues of material fact and to eliminate the expense and burden of unnecessary trials." Hajenga v. Schwein, 2007 MT 80, ¶ 11, 336 Mont. 507, 155 P.3d 1241 (citations omitted). Summaiy judgment, however, is an extreme remedy that "should 'never be substituted for a trial if a material factual controversy exists[.]"' Hajenga, ¶ 11 (quoting Lee v. USAA Cas. Ins. Co., 2001 MT 59, ¶ 71, 304 Mont. 356, 22 P.3d 631). Summary judgment is appropriate only when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Needham v. Kluver, 2019 MT 182, ¶ 14, 396 Mont. 500, 446 P.3d 504 (citations omitted). A dispute of fact is genuine if "based on the record, reasonable jurors could reach different conclusions as to a particular material fact." Meadow Lake Estates Homeowners Ass 'n v. Shoemaker, 2008 MT 41, ¶ 25, 341 Mont. 345, 178 P.3d 81. "To determine the existence or nonexistence of a genuine issue of material fact, we look to the pleadings, depositions, answers to interrogatories, admissions on file, and...