Cindy Pedersen v. the Tjx Companies , 634 F. App'x 186 ( 2015 )

FILED
NOT FOR PUBLICATION
DEC 18 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CINDY M. PEDERSEN, No. 13-36007
Plaintiff - Appellant, D.C. No. 9:12-cv-00210-DWM
v.
MEMORANDUM*
THE TJX COMPANIES, INC., DBA T.J.
Maxx,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, Senior District Judge, Presiding
Argued and Submitted October 14, 2015
Seattle, Washington
Before: KOZINSKI, W. FLETCHER, and FISHER, Circuit Judges.
Cindy Pedersen appeals the district court’s grant of summary judgment in
favor of The TJX Companies, Inc. (“TJX”), in her diversity action alleging
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
wrongful discharge under Montana’s Wrongful Discharge From Employment Act
(WDEA), Mont. Code Ann. § 39-2-901, et seq. We reverse and remand.
1. Under the WDEA, a Montana employer may discharge an employee who
has completed an initial probationary period only if it has “good cause” to do so.
Mont. Code Ann. § 39-2-904(1)(b). Pedersen was an assistant store manager in
TJX’s T.J. Maxx store in Missoula and had worked at the store for ten years. In
January 2012, TJX fired Pedersen upon learning that she had consumed alcohol
with her subordinates after hours during a business trip to Kalispell. District
Manager Denis Lattin stated in a declaration that Pedersen had violated TJX
policies, including its conflict of interest policy, its heightened standards for
managerial employees, and a strict TJX policy prohibiting managerial employees
from consuming alcohol with subordinate employees during business trips.
However, Pedersen testified in a sworn deposition that she had previously had
drinks with her supervisors on TJX-sponsored business trips in Las Vegas and
California. She also testified that Lattin told her that he had consumed alcohol with
his subordinates in the past. There is a genuine dispute of material fact as to
whether Pedersen’s conduct actually violated TJX policies and whether TJX
applied its policies to Pedersen arbitrarily. Fed. R. Civ. P. 56(a); see Johnson v.
Costco Wholesale, 152 P.3d 727, 734 (Mont. 2007) (“This evidence . . . may lead a
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jury to believe that Costco did not have good cause to discharge Johnson because it
applied its employment policy in an arbitrary and capricious manner.”).
Even if consumption of alcohol with an underage subordinate would have
provided good cause to terminate Pedersen, it is disputed whether Pedersen knew
that 19-year-old Cody Posio was underage. She testified in her deposition that she
did not know Posio’s age at the time of the Kalispell trip.
2. The district court also erred in concluding TJX’s purported loss of trust in
Pedersen constituted good cause under Buck v. Billings Montana Chevrolet, Inc.,
811 P.2d 537 (Mont. 1991). Buck emphasized an employer must have a “legitimate
business reason” for terminating a general manager. Id. at 540–41. Under the
WDEA, however, “[t]he legal use of a lawful product by an individual off the
employer’s premises during nonworking hours is not a legitimate business reason,
unless the employer acts within the provisions of 39-2-313(3) or (4).” Mont. Code
Ann. § 39-2-903(5). The district court did not consider how this statutory provision
limits Buck and whether it would apply to Pedersen’s claim. We leave it to the
district court to address these questions in the first instance.
3. Finally, the district court erred in concluding there was not a triable issue
on pretext. Under the WDEA, a given reason for discharge is not good cause if it
“is a pretext and not the honest reason for the discharge.” Arnold v. Yellowstone
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Mtn. Club, LLC, 100 P.3d 137, 141 (Mont. 2004) (quoting Mysse v. Martens, 926
P.2d 765, 770 (Mont. 1996)). Pedersen testified in her deposition that Penny
Dickey, the new store manager, wanted to get rid of older employees and those
who had been there a long time. Pedersen said Dickey had told her and other
employees that they would be “squeezed out.” Several employees had either quit or
been fired or demoted by Dickey. TJX admits that Dickey’s communications to
Lattin informed his decision to fire Pedersen. This case is therefore unlike Johnson.
There, Johnson “presented no evidence to suggest that” his supervisor—whose
statements indicated that the employer’s stated rationale was pretextual—“had any
contact with [the ultimate decision-maker] regarding Johnson.” 152 P.3d at 735.
Here, by contrast, there is a genuine dispute of material fact about the role Dickey
played in Pedersen’s discharge and whether TJX’s stated reasons for firing
Pedersen were “the true motivation for the discharge.” Id. at 734.
REVERSED and REMANDED.
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