Henrichs v. Safeway Inc.

Filing 32

ORDER granting in part and denying in part 20 Motion for Summary Judgment Signed by Magistrate Judge Jeremiah C. Lynch on 11/20/2014. (TXB, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BUTTE DIVISION
BRENT HENRICHS,

CV 13-80-BU-JCL

Plaintiff,
ORDER
vs.

SAFEWAY, INC., a corporation,
Defendant.

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.

Background1

1

Safeway argues as a threshold matter that Henrichs’ statement of genuine
issues does not adequately identify the facts that are disputed and those that are
not, as required by Local Rule 56.1(b). As a result, Safeway asks the Court to
disregard Henrichs’ statement of genuine issues and treat the facts it has offered in
support of summary judgment as true and undisputed. While Henrichs’ statement
of genuine issues is hardly a model of clarity, it is not so deficient as to warrant
such a drastic remedy. Consistent with well-established summary judgment
standards, the Court thus takes the following facts from the materials of record
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, ¶

and, where disputed, views them in the light most favorable to Henrichs as the
non-moving party.
2

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

2

Because Lynnsi was 14 years old, she legally could have held the job in
her own name. See Mont. Code Ann. § 41-2-108.
3

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

4

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,

3

Henrichs did not submit his injury as a workers’ compensation claim until
after Safeway terminated his employment several months later.
5

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
6

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
4

Sitting in diversity jurisdiction, this Court applies the substantive law of
Montana as the forum state. See Medical Laboratory Mgmt. Consultants v.
American Broadcasting Companies, Inc., 306 F.3d 806, 812 (9th Cir. 2002).
7

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.
8

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. Anderson, 477 U.S. at 255; Betz v. Trainer Wortham & Co., Inc., 504 F.3d
1017, 1020-21 (9th Cir. 2007).
III.

Discussion
Montana’s Wrongful Discharge from Employment Act (“the Act”) provides

as follows:
(1) A discharge is wrongful only if:
(a) it was in retaliation for the employee’s refusal to violate public
policy or for reporting a violation of public policy;
(b) the discharge was not for good cause and the employee had
completed the employer’s probationary period of employment; or
(c) the employer violated the express provisions of its own written
personnel policy.
Mont. Code Ann. § 39-2-904. Henrichs asserts claims against Safeway under all
three subsections.
A.

Retaliation for reporting a violation of public policy

9

Safeway argues it is entitled to summary judgment on Henrichs’ claim under
subsection (a) because Henrichs has not come forward with any evidence that he
was discharged for reporting a violation of public policy.5 The Court agrees.
The Act defines “public policy” as “a policy in effect at the time of the
discharge concerning the public health, safety, or welfare established by
constitutional provision, statute, or administrative rule.” Mont. Code Ann. § 39-2903(7). Henrichs maintains that under Montana law, it is a violation of public
policy for an employer to discharge a worker for asserting his right to workers’
compensation. For support, he relies on Mont. Code Ann. § 39-71-317(1), which
states that “[a]n employer may not use as grounds for terminating a worker the
filing of a [workers compensation] claim....” Although Henrichs did not actually
file a workers’ compensation claim until after Safeway terminated his
employment, he apparently takes the position that when he filed his injury report
with Safeway he was effectively asserting his right to workers’ compensation.
According to Henrichs, Cruson treated him differently from that point forth by
unjustifiably demeaning him and criticizing his work performance. Henrichs
maintains that Safeway ultimately terminated his employment in retaliation for

5

Henrichs does not allege that Safeway discharged him in retaliation for
refusing to violate public policy.
10

filing his injury report, and in doing so violated the public policy articulated in
Montana’s workers’ compensation statutes.
This argument is problematic for a number of reasons. To begin with,
Henrichs does not cite any authority for the proposition that simply filing an injury
report is sufficient to trigger the protection afforded by Mont. Code Ann. § 39-71317(1), which specifies only that an employer may not terminate an employee for
“the filing of a claim under this chapter.” But even assuming, without deciding,
that it would violate Montana’s public policy for an employer to discharge an
employee based on the filing of an injury report, Henrichs fails to explain how
such an alleged violation could give rise to a claim under Mont. Code Ann. § 392-904(1)(a). The relevant portion of subsection (a) plainly states that for a
discharge to be wrongful it must have been “in retaliation...for reporting a
violation of public policy.” The statute thus provides a claim if an employee is
discharged for reporting a violation of public policy, but says nothing about
providing a claim where, as here, an employer allegedly discharges an employee in
violation of public policy. Unless an employee is discharged “for reporting a
violation of public policy,” there can be no claim under this particular statutory
provision.
Here, there is simply no evidence that Henrichs reported a violation of
11

public policy to Safeway, or that Safeway discharged him in retaliation for doing
so. The only thing that Henrichs reported to Safeway was his on-the-job injury.
An on-the-job injury is not itself a violation of public policy, which means that
when Henrichs reported his on-the-job injury to Safeway, he was not “reporting a
violation of public policy” within the meaning of the statute. Even if the Court
were to somehow construe Henrichs’ injury report as a workers’ compensation
claim, which it is not inclined to do, the result would be no different. Reporting or
filing a workers’ compensation claim is not a violation of public policy. Thus,
even assuming Safeway discharged Henrichs in retaliation for reporting a workers’
compensation claim, he would not have a cause of action under Mont. Code Ann.
§ 39-2-904(1)(a).
This is not to say that Henrichs will necessarily be left without a remedy if
he can establish that Safeway discharged him for filing his injury report. As
discussed below, however, any potential remedy lies not under subsection (a), but
under the good cause prong set forth in Mont. Code Ann. § 39-2-904(1)(b).6

6

To recover punitive damages under the Act, a plaintiff 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(a)(1).” Mont.
Code Ann. § 39-2-905(2). Because Henrichs’ claim under § 904(a)(1) is subject to
summary dismissal, his corresponding claim for punitive damages is properly
dismissed as well. See Mont. Code Ann. § 39-2-905(3).
12

B.

Good cause

Under Mont. Code Ann. § 39-2-904(1)(b), a discharge is wrongful if it “was
not for good cause and the employee had completed the employer’s probationary
period of employment.” Safeway argues that Henrichs’ claim under subsection
(b) fails as a matter of law because the undisputed evidence establishes that it had
good cause for terminating his employment.
An employer has “good cause” to discharge an employee when it has
“reasonable job-related grounds for dismissal based on a failure to satisfactorily
perform job duties, a disruption of the employer’s operation, or other legitimate
business reason.” Mont. Code. Ann. § 39-2-903(5). “A legitimate business
reason is one that is ‘neither false, whimsical, arbitrary or capricious, and it must
have some logical relationship to the needs of the business.’” Becker v. Rosebud
Operating Services, Inc., 191 P.3d 435, (Mont. 2008) (quoting Kestell v. Heritage
Health Care Corp., 858 P.2d 3, 7 (Mont. 1993)).
“To defeat a motion for summary judgment on the issue of good cause, 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
13

(Mont. 2007). To create an issue of fact regarding pretext, the employee must
provide more than “mere denial or speculation.” Johnson, 152 P.3d at 734. In
determining whether such a factual issue exists, “[a]ll reasonable inferences which
can be drawn from the evidence presented must be drawn in favor of the nonmoving party.” Vettel-Becker v. Deaconess Medical Center of Billings, Inc., 177
P.3d 1034, 1039 (Mont. 2008).
Safeway terminated Henrichs’ employment for the stated reason that he had
violated company “policy and procedure” as set forth in its Code of Business
Conduct (“CBC”). (Doc. 22-13; Doc. 22-12). In particular, Safeway claims
Henrichs’ violated a section of the CBC that “requires all employees” to be
“truthful in [their] dealings with each other and to give honest information in all
circumstances.” (Doc. 22-8, at 6). Safeway also maintains that Henrichs violated
the CBC’s conflicts of interest section, which generally prohibits an employee
from engaging in “outside work, interests or activities that may impair his or her
judgment or objectivity as it relates to the performance of his or her job with
Safeway, hinder the timely performance of his or her duties, discredit the company
or conflict with its best interests.” (Doc. 22-8, at 8). The conflicts of interest
section requires that any outside employment “be kept separate from and not
conflict with [the employee’s] duties at Safeway,” and states that an employee
14

should not take work “which competes with Safeway, provides any commodity or
service which Safeway provides, or deprives Safeway of business.” (Doc. 22 -8,
at 9). The CBC mandates that an employee report to his “immediate supervisor
any circumstances, interests or relationships that [the employee] believe[s] may be
inconsistent with the letter or the spirit of” the conflicts of interest section. (Doc.
22-8, at 9).
Henrichs disputes that Safeway had good cause for terminating him for
violating any of these CBC provisions, and claims he disclosed to Cruson during
their telephone conversation in 2005 that he held outside employment with Pepsi
in his own name. For support, he points to the following excerpt from his own
deposition testimony:
Q:

You didn’t tell [Cruson] in this e-mail that: “Hey, I’m the employee
and they’re just doing the work,” did you?

A:

Well, we didn’t talk about it in that email, but we talked about it on
the phone call that I got on the 29th.

(Doc. 25-1, at 6).
But Henrichs subsequently confirmed that Cruson’s version of events was
accurate. Cruson’s note summarizing his telephone conversation with Henrichs
reads as follows:
I observed [Henrichs’] youngest son (11 or 12 years of age?) Stocking Pepsi
15

brand pop in Store #3256. Apparently, [Henrichs’] daughter is actually
employed by Pepsi and her younger brother comes in to assist her. When
she has other conflicts, he comes in by himself. This is what I observed
during my store visit of Wednesday, December the 21st.
I was concerned that due to his age, and since he truly isn’t the employee for
Pepsi, that if he were to get hurt somehow, Safeway would be liable. I
called Brent back today to discuss this issue with him, explained by
concerns, and Brent said he understood and would stop him from doing this
immediately.
(Doc. 25-1, at 6).
Cruson’s note makes clear it was his impression after speaking with
Henrichs that Henrichs’ daughter was the person actually employed by Pepsi. He
says nothing about having been informed that Henrichs held outside employment.
Henrichs read Cruson’s note out loud at his deposition and confirmed that it was
an accurate summary of their conversation. (Doc. 25-1, at 6). It is also worth
noting that when Henrichs and Cruson had this conversation in December 2005,
the job stocking Coca-Cola products for Mile High Beverages had not yet begun.
(Doc. 22, ¶¶ 12-13). As Safeway correctly points out, Henrichs could not have
disclosed employment that did not then exist.
On its face, the reason given by Safeway for terminating Henrichs’
employment qualifies as good cause. The undisputed evidence establishes that
Henrichs held outside employment with Harrington Bottling Company and Mile

16

High Beverages for several years without reporting the employment to Safeway.
The undisputed evidence also establishes that the job with Mile High Beverages
involved stocking Coca-Cola products at one of Safeway’s competitors in
violation of the CBC’s conflicts of interest provisions. The fact that Henrichs
claims his children performed all of the work involved is immaterial. It is
undisputed that Henrichs held the jobs in his own name, received the paychecks in
his own name, and reported and payed taxes on the earnings.
While the reason given by Safeway for Henrichs’ discharge is in and of
itself good cause, Henrichs’ claim may nonetheless survive summary judgment if
he can show there is a genuine issue of material fact as to whether that reason was
simply a pretext and not the honest reason for his discharge. See Becker, 191
P.3d at 441. The evidence Henrichs points to in support of his misplaced
argument that Safeway wrongfully discharged him for reporting a violation of
public policy raises an issue of fact as to whether Safeway discharged him not
because he violated the CBC, but because he reported a workplace injury.
Henrichs testified at his deposition that he did not file his injury as a
workers’ compensation claim because he and other Safeway store managers “were
feeling a lot of pressure” about the number of workers’ compensation claims
throughout the district. (Doc. 25-1, at 7). Henrichs explained that he did not want
17

to adversely affect anyone’s bonus, including Cruson’s, by submitting his injury as
a workers’ compensation claim. (Doc. 25-1, at 7).
Henrichs maintains that Cruson then began a campaign of retaliation against
him for submitting his injury report to Safeway. For example, Henrichs points to
evidence that Cruson began visiting the Anaconda store more frequently after he
submitted his injury report, and was constantly calling. (Doc. 25-6, at 4).
Henrichs also claims that Cruson and another management employee unjustifiably
berated him and criticized his job performance during a conference call just days
before he was scheduled to take leave for surgery. (Doc. 25-11, at 5-7). And
notwithstanding the fact that he received a favorable annual job evaluation just
prior to taking medical leave, Henrichs has come forward with evidence that
almost immediately upon his return Cruson presented 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). According to Henrichs, Cruson’s campaign of retaliatory
conduct culminated in his termination from employment on September 19, 2012.
Viewing the evidence in Henrichs’ favor, the Court finds that Henrichs has
pointed to sufficient evidence to raise a genuine issue of material fact as to
18

whether Henrichs was terminated not because he violated Safeway’s CBC, but
because he filed an injury report. Because Henrichs has come forward with
sufficient evidence to create an issue of fact regarding pretext, his wrongful
discharge claim under Mont. Code Ann. § 39-2-904(1)(b) survives summary
judgment.
To be sure, Henrichs’ opposition brief is rather imprecise given his
misunderstanding of the “public policy” prong embodied in Mont. Code Ann. §
39-2-904(1)(a). But in the main, Henrichs’ brief makes clear his position that the
determinative issue is whether Safeway discharged him for the stated reason that
he had violated the CBC or in retaliation for reporting a workplace injury. (Doc.
24, at 7 & 12). In its reply brief, Safeway points out that in arguing Safeway
lacked good cause to discharge him, Henrichs does not expressly argue the stated
reason for the discharge was pretextual. But to the extent Henrichs’ claim of
retaliation for reporting his workplace injury might be viewed as a claim of
pretext, Safeway argues there is no evidence to support the claim. (Doc. 27 at 11
& 15). As discussed, the record reflects otherwise. And the Court must, of
course, consider the record as a whole. See, Samper v. Providence St. Vincent
Medical Center, 675 F.3d 1233, 1236 n. 1 (9th Cir. 2012).
C.

Violation of Safeway’s written personnel policy
19

Henrichs has also alleged a claim under Mont. Code Ann. § 39-2-904(1)(c),
which provides that a discharge is wrongful if “the employer violated the express
provisions of its own written personnel policy.” Safeway argues this claim should
be summarily dismissed because Henrichs has not produced any evidence that
Safeway violated any of the express provisions of its written personnel policies in
terminating Henrichs’ employment. Safeway is correct.
Henrichs first contends that Safeway discharged him in violation of the
CBC’s non-retaliation provision, which states that “Safeway will not tolerate
retaliation against an employee for providing information concerning, or in
assistance of, any investigation(s) of potential or actual violations of this Code.”
(Doc. 22-8, at 6). But Henrichs has not pointed to any evidence that he provided
information or assisted in any investigation of a potential or actual violation of
Safeway’s CBC. Rather, Henrichs’ theory of the case is that Safeway retaliated
against him for reporting a workplace injury. The CBC’s non-retaliation provision
is simply inapplicable.
Henrichs next argues that Safeway discharged him in violation of a CBC
provision requiring truthful and honest dealings with and by Safeway employees.
(Doc. 22-8, at 6). Henrichs relies specifically on the following passage:
“Safeway’s reputation for honesty and integrity also includes our dealings with all
20

employees. As both employees and managers, we must be truthful in our dealings
with each other and give honest information in all circumstances.” (Doc. 22-8, at
6).
Although it is not entirely clear, Henrichs apparently takes the position that
Cruson violated this provision because he acted without honesty and integrity by
allegedly retaliating against him for reporting his workplace injury. But the
CBC’s requirement that Safeway’s employees and managers act with honesty and
integrity is a general one, and cannot under the circumstances be construed as an
“express provision” giving rise to a cause of action under § 904(1)(c) based on
Cruson’s alleged retaliatory conduct. As discussed above, to the extent Henrichs
alleges he was discharged in retaliation for reporting a workplace injury, his claim
is properly brought under the good cause prong set forth in § 904(1)(b).
Henrichs also argues more specifically that Safeway violated the CBC’s
honesty and integrity requirements while investigating whether he maintained
outside employment. According to Cruson, he heard from a representative of one
of Safeway’s vendors in August 2012 that Henrichs was stocking Pepsi products
at Safeway’s competitor, the Anaconda Albertsons store. The representative
apparently remembers things differently, however, and has said she simply told
Cruson that Henrichs was riding in a Pepsi truck.
21

Regardless of whose recollection is accurate, it is undisputed that Safeway
thereafter conducted an independent investigation and confirmed that Henrichs
had maintained undisclosed outside employment with Harrington Bottling
Company for several years. Cruson and Brezenski then met with Henrichs, who
confirmed that he was named as Harrington Bottling Company’s employee and
also revealed that he was named as an employee of the local Coca-Cola
distributor. Henrichs does not point to any evidence that Cruson, Brezenski, or
Safeway lacked honesty or integrity in their investigation. Whether the Safeway
vendor’s representative said Henrichs was riding in a Pepsi truck or stocking Pepsi
products is simply immaterial. Henrichs claim under § 904(1)(c) that Safeway
discharged him in violation of the CBC’s honesty and integrity requirements fails
as a matter of law.
Finally, Henrichs claims Safeway discharged him in violation of a CBC
provision regarding the protection of company assets. The CBC states that
“[e]very employee is responsible for protecting the assets of the company,”
including its “property,” and specifies that property “may not be taken, sold,
traded, given away or destroyed without proper permission.” (Doc. 22-8,at 12).
Henrichs apparently contends that Cruson violated this policy by removing two
unsecured inventory guns from the store during one of his on-site visits in order to
22

teach Henrichs a lesson. But even assuming Cruson did violate this particular
CBC provision, such a violation has nothing whatsoever to do with Henrichs’
discharge. It is undisputed that Safeway discharged Henrichs for failing to
disclose outside employment in violation of the CBC’s conflicts of interest
provisions. Henrichs cannot maintain a wrongful discharge claim under §
904(1)(c) based on an alleged violation of a personnel policy that has nothing
whatsoever to do with his discharge. Because Henrichs has not come forward
with any evidence that Safeway violated an express provision of its own written
personnel policy in terminating his employment, his claim under § 904(1)(c) fails
as a matter of law.
IV.

Conclusion
For the reasons set forth above,
IT IS ORDERED that Safeway’s motion for summary judgment is

GRANTED as to Henrichs’ claims under Mont. Code Ann. § 39-2-904(1)(a) and
(c), including his claim for punitive damages, but DENIED as to Henrichs’ claim
under § 39-2-904(1)(b).
DATED this 20th day of November, 2014.

Jeremiah C. Lynch
United States Magistrate Judge
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