                                                                           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                           NOT FOR PUBLICATION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


                                            3
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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