Jacques v. Haas Group International, LLC

Filing 65

FINDINGS AND RECOMMENDATIONS re 45 MOTION for Summary Judgment filed by Haas Group International Inc. IT IS RECOMMENDED that Haas'motion for summary judgment (ECF No. 45 ) be DENIED in all respects, and that the Court set this matter for trial. Signed by Magistrate Judge Carolyn S Ostby on 1/25/2016. (JDR, ) Modified on 1/25/2016 to change to opinion (JDR, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
THOMAS P. JACQUES,

CV 14-135-BLG-SPW-CSO

Plaintiff,
FINDINGS AND
RECOMMENDATION OF
U.S. MAGISTRATE JUDGE

vs.
HAAS GROUP
INTERNATIONAL, INC.,
Defendant.

Plaintiff Thomas P. Jacques (“Jacques”) filed this action against
his former employer, Defendant Haas Group International, Inc.
(“Haas”), for wrongful discharge, back commission payments owed, and
breach of the implied covenant of good faith and fair dealing. Am.
Cmplt. (ECF No. 27) at ¶¶ 39-57.1 Invoking the Court’s diversity
jurisdiction under 28 U.S.C. § 1332, Jacques seeks compensatory and
punitive damages. Id. at ¶ 5 and Prayer for Relief at ¶¶ 1-4.2

1

“ECF” refers to the document as numbered in the Court’s
Electronic Case Files. See The Bluebook, A Uniform System of Citation,
§ 10.8.3.
2

Jacques also asserted other claims and named an additional
defendant, but the Court dismissed those claims and the additional
defendant in earlier proceedings. See Order (ECF No. 39).
-1-

In his Amended Complaint, Jacques asserts the following Counts:
I-

Wage claim under MCA §§ 39-3-204(1) and 205, alleging
that Haas failed to pay commissions it owes him, ECF No.
27 at ¶¶ 39-41;

II -

Claim for breach of the implied covenant of good faith and
fair dealing, alleging Haas failed to disclose sales upon
which Jacques was owed commissions, cut back on staff but
required higher sales and performance, and gave Jacques a
poor performance evaluation, id. at ¶¶ 42-46;

III - Claim for wrongful discharge under Montana’s Wrongful
Discharge from Employment Act (“WDEA”), MCA § 39-2904(1)(b),3 alleging that Haas fired him without good cause,
id. at ¶¶ 47-50;
IV - Claim for wrongful discharge under the WDEA, MCA § 39-2904(1)(a), alleging that Haas fired him in retaliation for
filing a wage claim, id. at ¶¶ 51-54; and
V-

Claim for unjust enrichment alleging that Haas will be
unjustly enriched at Jacques’ expense if Haas is permitted
to retain commissions on sales generated by Jacques’ efforts,
id. at ¶¶ 55-57.

Now pending is Haas’ motion for summary judgment on all of
Jacques’ claims against it. Haas’ Mtn. for Summary Judgment (ECF
No. 45). As discussed below, genuine issues of material fact exist
respecting each claim. Thus, the undersigned recommends that the
Court deny Haas’ summary judgment motion and set this case for trial.
3

Jacques’ Amended Complaint cites MCA § 39-2-904(2), but
context makes clear that Jacques intended to cite to MCA § 39-2-904(1).
-2-

I.

Background4
Jacques and others owned MC Technologies, which marketed a

system called MAXCOM. Stmt. of Stipulated Facts (ECF No. 7) at ¶ 7;
Haas’ Answer to Amended Cmplt. (ECF No. 28) at ¶7. In 2007, Haas
acquired MC Technologies. ECF No. 7 at ¶ 7. Jacques and some of MC
Technologies’ other owners became Haas employees. Id.
Jacques was tasked with marketing the MAXCOM system. ECF
No. 28 at ¶ 9. Jacques describes MAXCOM as “offer[ing] employers a
simple and cost-effective method for protecting employees who work
with or around hazardous materials.” ECF No. 27 at ¶ 7. Haas, which
maintains that it integrated the staff and operations of MC
Technologies into itself as a division, describes the resulting MAXCOM
Services Division as “sell[ing] a particular service: an integrated
software system for monitoring and facilitating customer reporting,
handling, and use of various chemicals, as well as certain training and
audit services.” Defts’ Prelim. Pretrial Stmt. (ECF No. 9) at 2.
At the beginning of 2008, Haas employed sixteen people (one of
whom was employed part-time), in its MAXCOM division. ECF No. 7

4

The background facts are undisputed unless otherwise noted.
-3-

at ¶ 8. Staffing in the MAXCOM division was reduced between 2008
and the present. Id. at ¶ 9.
Jacques worked from his home in Billings, Montana. He was
usually supervised by managers at Haas’ Pennsylvania headquarters,
but for a time was supervised from Tucson, Arizona. Several different
managers supervised Jacques between 2008 and 2014. Id. at ¶ 10; ECF
No. 28 at ¶ 12.
Jacques’ compensation package from Haas consisted of an annual
salary, benefits, and commission payments. His annual salary at the
time of his termination was $81,500. ECF No. 7 at ¶ 11.
In 2010 and 2011, Jacques’ commission was 5% of sales of
MAXCOM products and services up to $500,000, and 10% once sales
exceeded $500,000. ECF No. 28 at ¶ 14. In 2012 and after, Jacques’
commission was 5% of sales of MAXCOM products and services up to
$500,000, 7.5% on such sales made above $500,000 up to $750,000, and
10% on such sales above $750,000. Id. at ¶ 15. Jacques maintains that
these commission amounts were for “annual” sales. ECF No. 27 at ¶
14. Haas maintains these commission amounts were for “new” sales.
ECF No. 28 at ¶ 14.

-4-

Haas did not implement any new written commission policy
applicable to Jacques prior to the end of his employment. Id. at ¶ 16.
Haas employee Paula Hearn was tasked with calculating Jacques’
commissions. She provided copies of her calculations to her superiors,
and payments to Jacques were based on her calculations. ECF No. 7 at
¶ 12.
In late 2012, Jacques negotiated a contract with Providence
Health System (“PHS”), and his division was recognized for exceeding
its sales quota for the year. Id. at ¶ 13.
The amount that Haas calculated was due to Jacques for sales in
late 2012 was paid in 2013. Id. at ¶14. Haas paid commissions to
Jacques between March 2013 and November 2013. Id. at ¶ 15. Haas
paid no commissions to Jacques in December 2013 or January 2014. Id.
at ¶ 16.
Jacques filed a wage claim with the State of Montana Department
of Labor and Industry, and it was served on Haas in February 2014.
Id. at ¶ 17. Haas gave Jacques a performance evaluation in February
2014. Id. at ¶ 18.
On August 26, 2014, Haas deposited in Jacques’ bank account

-5-

$77,783.68, which was the net after taxes on commissions of
$125,383.33. Id. at ¶ 19.
On August 28, 2014, Haas terminated Jacques’ employment. Id.
at ¶ 20.
On September 22, 2014, Haas paid Jacques $16,389.10, which was
the net after taxes on commissions of $25,068.74. Id. at ¶ 21.
On October 10, 2014, Jacques filed this action. ECF No. 1 at 1.
II.

The Parties’ Arguments
Haas argues that there are no genuine issues of material fact and

that it is entitled to summary judgment on all of Jacques’ claims
against it. Haas’ Brief in Support of Summary Judgment Mtn. (ECF
No. 46) at 2-3, 5. First, respecting Jacques’ claim for back commission
payments, Haas argues that there is no evidence that it failed to pay
Jacques any amount that it actually owed him. Id. at 6-9. Rather,
Haas argues that it paid Jacques $125,400.80 (before tax withholdings),
and later, after recalculating the amount, paid him another $25,067.54
(before tax withholdings).5 These payments were for “all sales by

5

The reason for the slight discrepancies between these numbers
and the numbers in the Statement of Stipulated Facts is unclear to the
Court.
-6-

Jacques through his termination of employment on which he was not
previously paid commissions and includ[e] an amount equal to
statutory penalties under Montana law.” Id. at 7. Haas argues that
Jacques can present no relevant evidence disputing these facts or
supporting his allegation that there are other sales that he made for
which he was not paid commissions. Id. at 7-8. Thus, Haas argues, it
is entitled to summary judgment on Counts I, II, and V of Jacques’
Amended Complaint. Id. at 9.
Second, respecting Jacques’ claim for wrongful discharge based on
lack of good cause, Haas argues that it had good cause to terminate
Jacques’ employment and that Jacques cannot show that Haas’ reasons
were pretexts. Id. at 9-11. Haas argues that it had good cause to
terminate Jacques employment because: (1) he failed to follow
instructions from his final three supervisors to focus his full time and
attention to sales to new customers; (2) his performance fell below
objectives and was deteriorating during 2013 and 2014, including his
failure to meet revenue, contribution, and new customer sales targets;
and (3) Jacques was not cooperating in efforts to improve sales or in
improving his attitude. Id. at 10-11. Thus, Haas argues, it is entitled

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to summary judgment on Counts III and IV of Jacques’ Amended
Complaint. Id. at 11. See also Reply Br. (ECF No. 62).
Finally, Haas argues that it is entitled to summary judgment
respecting Jacques’ claim for punitive damages stemming from his
WDEA retaliation claim. Id. at 11-12. Haas argues that Jacques
cannot produce clear and convincing evidence that Haas discharged
him in retaliation for filing a wage claim. It argues that Jacques’ last
supervisor, Matthew Young (“Young”), testified in his deposition that
his bases for terminating Jacques’ employment were focused on
Jacques’ value to the team and that he had no animus toward Jacques
for filing the wage claim. Id. at 12. Thus, Haas argues, it is entitled to
summary judgment on Jacques’ claim for punitive damages. Id.
In response, Jacques argues that genuine issues of material fact
preclude summary judgment. First, Jacques argues that, in asserting
that there are no genuine issues of material fact, Haas has: (1)
repeatedly failed to cite to its Statement of Uncontested Fact or to the
record for support; (2) presented “patently false” allegations; and (3)
misstated the record. Jacques’ Resp. Br. (ECF No. 55) at 5-6. Jacques
includes in his response brief a summary of “a few of the more relevant

-8-

and egregious examples of Haas’s misstatements of the record . . . .” Id.
at 6-14.
Second, Jacques argues that Haas disregarded the Federal Rules
of Civil Procedure and the Court’s Local Rules. Id. at 14-15. He argues
that “Haas filed a Statement of Undisputed Facts, but . . . never cites
that SUF in its brief, and the ‘facts’ it sets forth in that Statement are
not the same ones it sets forth in its brief.” Id. at 15. And, Jacques
argues, Haas provided no citation to many of the “facts” Haas set forth
in its brief. Id.
Third, Jacques argues that genuine issues of material fact exist
respecting whether Haas paid him all commissions to which he was
entitled. Id. at 16-20. He argues that: (1) Haas has not presented
uncontested evidence supporting its argument that it paid Jacques all
amounts owed; (2) Haas relies on a disputed fact – “that the date Haas
signed the PHS contract fixed the date Jacques earned the
commission[,]” – to support its assumption that it properly paid
Jacques’ commissions, when other evidence supports Jacques’
argument that commissions were to be calculated and paid based on
the date services were provided and invoiced; and (3) Haas incorrectly

-9-

assumes Montana law imposes a 55% penalty when it paid Jacques
commissions in August and September of 2014 when there exist factual
disputes respecting the amount of the penalty appropriate under
Montana law. Id. Thus, Jacques argues, the Court should deny Haas’
motion to the extent it relates to Counts I, II, and V of his Amended
Complaint. Id.
Fourth, Jacques argues that genuine issues of material fact exist
concerning whether Haas wrongfully terminated his employment. Id.
at 21-24. He argues that there is evidence demonstrating that Haas
terminated Jacques’ employment in retaliation for Jacques filing a
wage claim with the Montana Department of Labor, and there exists
conflicting evidence respecting Haas’ bases for discharging Jacques. Id.
Thus, Jacques argues, the Court should deny Haas’ motion to the
extent it relates to Counts III and IV of his Amended Complaint. Id.
Fifth, Jacques argues that sufficient evidence exists in this case to
allow a jury to determine whether Haas engaged in actual fraud or
actual malice in discharging Jacques for reporting a violation of public
policy. Id. at 24-25. Thus, he argues, the Court should deny Haas’
motion to the extent it seeks summary judgment respecting Jacques’

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claim for punitive damages stemming from his wrongful discharge
claims. Id.
III. Summary Judgment Standard
“The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A
party seeking summary judgment always bears the initial
responsibility of informing the court of the basis for its motion, and
identifying those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if
any, which it believes demonstrate the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Material facts are those which may affect the outcome of the case.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as
to a material fact is genuine if there is sufficient evidence for a
reasonable fact-finder to return a verdict for the nonmoving party. Id.
If the moving party meets its initial responsibility, the burden then
shifts to the opposing party to establish that a genuine issue of fact
exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

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586 (1986).
The purpose of summary judgment is to pierce the pleadings and
to assess the proof in order to see whether there is a genuine need for
trial. Id. at 587 (quotation omitted). In resolving a summary judgment
motion, the evidence of the opposing party is to be believed, Anderson,
477 U.S. at 255, and all reasonable inferences that may be drawn from
the facts placed before the Court must be drawn in favor of the
opposing party, Matsushita, 475 U.S. at 587 (citation omitted).
IV.

Discussion
A.

Counts I, II & V: Jacques’ Wage-Based Claims

Montana’s Wages and Wage Protection Act, MCA § 39-3-201, et
seq., requires that an employer pay its employees “the wages earned by
the employee . . . .” MCA § 39-3-204(1). The Montana Supreme Court
has determined that the statute “is sufficiently broad to cover
employees who are paid on a commission basis.” America’s Best
Contractors, Inc. v. Singh, 321 P.2d 95, 100 (Mont. 2014) (citing
Delaware v. K-Decorators, Inc., 973 P.2d 818, ¶ 32 (Mont. 1999)). “[A]n
employer who fails to pay an employee his or her earned commissions
in accordance with the Wage Protection Act is subject to a penalty

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under § 39-3-206(1), MCA, based on the amount of wages that are due
and unpaid.” Id. (citing Delaware, at ¶ 32).
In America’s Best Contractors, the supreme court set forth the
respective burdens of proof for a claim under the Wage Protection Act
as follows:
An employee seeking unpaid wages has the initial burden of
proving that he has performed work for which he was
improperly compensated. To meet this burden, the
employee must produce sufficient evidence showing the
amount and extent of such work as a matter of just and
reasonable inference. Once an employee has shown as a
matter of just and reasonable inference that wages have
been earned but not paid, the burden shifts to the employer
to come forward with evidence of the precise amount of the
work performed or with evidence to negate the
reasonableness of the inference drawn from the evidence of
the employee. If the employer fails to produce such
evidence, the employee is entitled to judgment in his or her
favor, even though the amount is only a reasonable
approximation.
Id. at 101 (citations omitted).
Having considered the foregoing authority and the record, the
Court concludes that genuine issues of material fact preclude summary
judgment in Haas’ favor on Jacques’ wage-based claims.6

6

Because Haas grouped these claims together and made no
separate argument with respect to each of them, the Court does
likewise.
-13-

By way of one example, Haas argues that it paid Jacques all
commissions to which he was entitled. ECF No. 46 at 6-9. Haas argues
that the date it signed the PHS contract fixed the date Jacques earned
the commission, and that because Haas signed the contract in 2014,
Jacques was not entitled to the commission he seeks. Id. But Haas has
offered no authority or undisputed evidence to support its position.
On the other hand, in his response to Haas’ motion, Jacques
references evidence of record, which Haas admits is true, that: (1) the
Haas-PHS contract had an effective date of December 1, 2013, ECF No.
64-4 at 9; (2) Haas invoiced PHS in 2013; and (3) Haas booked revenue
from the contract in 2013. ECF No. 46 at 7-8; ECF No. 55 at 16-17;
ECF No. 56 at 7-9. Although Haas maintains that this evidence is not
relevant to the issue of when Jacques earned the commission, the Court
disagrees. Haas has offered no authority for its position that the date
the contract was signed fixed the date on which Jacques would qualify
for a commission. And, a reasonable inference may be drawn from the
evidence that Jacques has presented that Jacques earned commission
on that contract in 2013.
Also, Jacques claims that he is entitled to commissions on other

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sales that occurred after his employment with Haas ended. Although
Haas disputes that claim, Jacques has pointed to some evidence in the
record from which an inference reasonably may be drawn that he may
be entitled to commissions for other sales in which he participated,
regardless of when his participation occurred. ECF No. 56 at 2-3.
These and other genuine issues of fact preclude summary
judgment on Jacques’ wage-based claims, and Haas’ motion on these
claims (Counts I, II, and V) should be denied.
B.

Counts III & IV: Jacques’ Wrongful Discharge Claims

An employee bears the burden of proving wrongful discharge.
Delaware v. K-Decorators, Inc., 973 P.2d 818, 829 (Mont. 1999)
(citations omitted); Schwartz v. Metro Aviation, Inc., 2009 WL 352599,
at *4 (D. Mont. 2009) (citing Becker v. Rosebud Operating Services, Inc.,
191 P.3d 435, ¶ 24 (Mont. 2008)). Montana’s WDEA, MCA §§ 39-2-901,
et seq., provides, in relevant part, that a discharge is wrongful only if:
(a)

it was in retaliation for the employee’s . . . reporting a
violation of public policy; [or]

(b)

the discharge was not for good cause . . . .

MCA § 39-2-904(1).
As noted, Haas seeks summary judgment arguing both that it did
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not discharge Jacques for reporting a violation of public policy and that
it had good cause to discharge him. ECF No. 46 at 9-11; ECF No. 62 at
8-13. Jacques, on the other hand, argues that summary judgment is
not appropriate because genuine issues of material fact exist respecting
both claims. ECF No. 55 at 21-24.
1.

Count IV: Jacques’ Claim that Haas Wrongfully
Discharged Him in Retaliation for Reporting a
Public Policy Violation

“The WDEA’s retaliatory discharge provision, § 39-2-904(1)(a),
MCA, ... exists to protect the State’s interest in enforcing State policies
‘concerning the public health, safety, or welfare established by
constitutional provision, statute, or administrative rule.’” Fenno v.
Mountain West Bank, 192 P.3d 224, 230 (Mont. 2008) (quoting MCA
§39-2-903(7)) (reversing district court’s entry of summary judgment for
employer). “[T]he WDEA protect[s] employees who take steps in their
employment to promote the enforcement of laws and regulations.” Id.
The WDEA protects a “good faith ‘whistle blower[,]’ ... regardless of
whether the employee’s report actually results in a citation or
investigation [ – ] the test is whether the employee made the report in
good faith.” Motarie v. Northern Montana Joint Refuse Disposal

-16-

District, 907 P.2d 154, 157 (Mont. 1995) (reversing district court’s entry
of summary judgment for employer).
Having considered the foregoing authority and the record, the
Court concludes that genuine issues of material fact preclude summary
judgment on Jacques’ WDEA retaliation claim. On the current record,
it is undisputed that Jacques filed a wage claim with the State of
Montana Department of Labor and Industry, and that it was served on
Haas in February 2014. ECF No. 7 at ¶ 17. Although the parties
stipulate that Haas gave Jacques a performance evaluation in February
2014, other evidence indicates Haas gave a written evaluation to
Jacques in March 2014. Id. at ¶ 18; see also ECF No. 47-8 at 1. Either
way, it is clear that Haas issued the performance evaluation a short
time after Jacques filed his wage claim. And, it cannot reasonably be
disputed that it is a negative performance evaluation. ECF No. 47-8 at
2-5. Haas ultimately paid Jacques some of the commissions that he
claimed he was owed, but Haas denied liability for Jacques’ wage claim.
See id. at ¶ 19; ECF No. 47-10 at 1; ECF No. 47-12 at 1. On August 28,
2014, Haas terminated Jacques’ employment. ECF No. 7 at ¶ 20.
In arguing that it did not terminate Jacques’ employment because

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of his wage claim, Haas has presented the declaration of Jacques’
supervisor who terminated him, Matthew Young. Young Decl. (ECF
No. 47-15) at ¶ 5. Young declares that he knew Jacques had filed a
wage claim, but his “decision to terminate Mr. Jacques was in no way
motivated by a desire to retaliate against [him] for having filed a wage
claim.” Id. He further states that he was not involved in the wage
claim matter and did not consider it when he supervised Jacques. Id.
But from the timing of Jacques’ termination from employment,
which occurred within a few weeks of the time the parties were
negotiating Jacques’ wage claim, a reasonable inference may be drawn
that Jacques’ termination from employment may have been the result
of his wage claim against Haas. Jacques testified in his deposition that
when he told a previous supervisor, Declan Grant (“Grant”), the
amount he was claiming in commissions for the period at issue and
which became the subject of his wage claim, Grant responded by saying
“that is never going to happen.” Jacques’ Depo. (ECF No. 56-43) at 16.
And Young testified in his deposition that he spoke with Grant and had
Haas’ human resources (“HR”) personnel “clear” his decision to
terminate Jacques’ employment before terminating Jacques. Young

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Depo. (ECF No. 56-45) at 18-19.
From this evidence, an inference may be drawn that the decision
to terminate Jacques’ employment with Haas may not have been solely
Young’s decision, and that his termination may have been the result of
his wage claim filed against Haas. Drawing all reasonable inferences
in Jacques’ favor as the non-moving party, as it must, the Court cannot
conclude on the current record that Haas’ decision to terminate
Jacques’ employment was not in retaliation for filing a wage claim. See
Motarie v. Northern Montana Joint Refuse Disposal Dist., 907 P.2d 154,
156-57 (Mont. 1995). Fact issues surrounding this claim must be
resolved by a jury. Summary judgment, therefore, is not appropriate.
2.

Count III: Jacques’ Claim that Haas Wrongfully
Discharged Him Because It Lacked Good Cause

The WDEA defines “good cause” as “reasonable job-related
grounds for dismissal based on a failure to satisfactorily perform job
duties, disruption of the employer’s operation, or other legitimate
business reason.” MCA § 39-2-903(5). A legitimate business reason is
one that is “neither false, whimsical, arbitrary or capricious, and . . .
must have some logical relationship to the needs of the business.”
Baumgart v. State of Montana, 332 P.3d 225, 231 (Mont. 2014) (quoting
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Sullivan v. Continental Const. of Montana, LLC, 299 P.3d 832, 835
(Mont. 2013)). To defeat a motion for summary judgment, the employee
may either prove that the given reason for the discharge is not “good
cause” in and of itself, or that the given reason “is a pretext and not the
honest reason for the discharge.” Becker v. Rosebud Operating Services,
Inc., 191 P.3d 435, 441 (Mont. 2008) (quoting Johnson v. Costco
Wholesale, 152 P.3d 727, 734 (Mont. 2007)).
In considering whether good cause exists for a discharge, courts
strive to balance an employer’s right to exercise discretion over who it
will employ and keep employed with an employee’s legitimate interest
in maintaining secure employment. Buck v. Billings Montana
Chevrolet, Inc., 811 P.2d 537, 540 (Mont. 1991). “The balance should
favor an employee who presents evidence, and not mere speculation or
denial, upon which a jury could determine that the reasons given for
his termination were false, arbitrary or capricious, and unrelated to the
needs of the business.” Johnson v. Costco Wholesale, 152 P.3d 727, 733
(Mont. 2007) (quoting Kestell v. Heritage Health Care Corp., 858 P.2d 3,
8 (Mont. 1993)).
The Court concludes that genuine issues of material fact preclude

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summary judgment in Haas’ favor on this claim. As noted above, Haas
has argued and presented some evidence that: (1) Jacques failed to
follow instructions from his final three supervisors to focus his full time
and attention to sales to new customers; (2) Jacques’ performance fell
below objectives and was deteriorating during 2013 and 2014, including
his failure to meet revenue, contribution, and new customer sales
targets; and (3) Jacques failed to cooperate in efforts to improve sales or
to improve his attitude. ECF No. 46 at 10-11.
In contrast, however, Jacques has presented evidence sufficient
to raise genuine issues of material fact respecting whether Haas had
good cause to discharge him. For example, Jacques notes that Young
testified in his deposition that Jacques’ attitude was tied to his
complaints about not receiving commissions to which he claimed
entitlement. ECF No. 55 at 23 (citing ECF No. 56-45 at 18). He notes
that Young testified that he had no reason to think that Jacques would
not have been a good team player if he had been paid and his complaint
satisfied. Id.
Also, respecting Haas’ position that Jacques failed to heed
instructions from his supervisors to focus completely on sales to new

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customers, Jacques has presented some evidence that such instructions
were impossible to follow and were not in Haas’ best interest. Jacques
testified that Haas did not assign anyone else to perform the customer
service and support functions he was told to no longer perform, so he
had to perform them to fulfill Haas’ obligations to its existing
customers. ECF No. 56-43 at 2-4.
It is, of course, for a jury to determine what weight to give
Jacques’ position on these issues, as reflected in the information
contained in his deposition, against Haas’ evidence submitted in the
depositions and declarations of its witnesses. See Weber v. Delta Dental
Ins. Co., 882 F.Supp.2d 1195, 1198-1200 (D. Mont. 2012). If the jury
were to give sufficient weight to Jacques’ evidence, it could determine
that the reasons Haas has given for Jacques’ discharge were false,
whimsical, arbitrary or capricious, and unrelated to the needs of Haas’
business. Johnson, 152 P.3d at 733 (quoting Kestell, 858 P.2d at 8); see
also Baumgart, 332 P.3d at 231. And jurors also must determine
whether, from the totality of the evidence presented, Haas’ reasons for
discharging Jacques were pretextual and not the honest reason for his
discharge. This conclusion, coupled with the above conclusion

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respecting Jacques’ claim that his discharge was in retaliation for
reporting a public policy violation via his wage claim, create fact issues
regarding “good cause” that a jury must resolve. Thus, summary
judgment on Jacques’ claim that his discharge was without good cause
should be denied.
3.

Jacques’ Claim for Punitive Damages

To prevail on a claim for punitive damages in an action under the
WDEA, an employee must “establish[ ] by clear and convincing
evidence that the employer engaged in actual fraud or actual malice in
the discharge of the employee in violation of § 39-2-904(1)(a).” MCA
§ 39-2-905(2). As noted, a violation of MCA § 39-2-904(1)(a) requires
that the wrongful discharge was “in retaliation for the employee’s
refusal to violate public policy or for reporting a violation of public
policy.”
An employer acts with actual malice if it “has knowledge of facts
or intentionally disregards facts that create a high probability of injury
to the plaintiff and: (a) deliberately proceeds to act in conscious or
intentional disregard of the high probability of injury to the plaintiff; or
(b) deliberately proceeds to act with indifference to the high probability
of injury to the plaintiff.” MCA § 27-1-221(2). An employer acts with
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actual fraud if it: “(a) makes a representation with knowledge of its
falsity; or (b) conceals a material fact with the purpose of depriving the
plaintiff of property or legal rights or otherwise causing injury.” MCA
§ 27-1-221(3).
Here, Jacques’ claim for punitive damages for violation of the
WDEA is based on his claim for unpaid commissions brought under
Montana’s Wages and Wage Protection Act, MCA § 39-3-201, et seq. In
Montana, an employee’s discharge for refusal to violate public policy by
asserting the statutory right to wages can form the basis for punitive
damages under the WDEA. See Harrell v. Farmers Educational Co-op
Union of America, Montana Div., 314 P.3d 920, 938-39 (Mont. 2013).
Because, as noted above, genuine issues of material fact preclude
summary judgment respecting Jacques’ WDEA claim based on
retaliation, the Court also concludes that fact issues preclude summary
judgment on his claim for punitive damages related to that claim.
Thus, summary judgment should be denied.
V.

Conclusion
Based on the foregoing, IT IS RECOMMENDED that Haas’

motion for summary judgment (ECF No. 45) be DENIED in all respects,

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and that the Court set this matter for trial.
NOW, THEREFORE, IT IS ORDERED that the Clerk shall serve
a copy of the Findings and Recommendation of United States
Magistrate Judge upon the parties. The parties are advised that
pursuant to 28 U.S.C. § 636, any objections to the findings and
recommendation must be filed with the Clerk of Court and copies
served on opposing counsel within fourteen (14) days after entry hereof,
or objection is waived.
DATED this 25th day of January, 2016.

/s/ Carolyn S. Ostby
United States Magistrate Judge

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