                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             APR 20 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ELIZABETH PRITCHARD-SLEATH,                      No.   14-35826

              Plaintiff-Appellee,                D.C. No. 6:12-cv-00074-DLC

 v.
                                                 MEMORANDUM*
MONTANA DEPARTMENT OF
PUBLIC HEALTH AND HUMAN
SERVICES,

              Defendant-Appellant.


                    Appeal from the United States District Court
                            for the District of Montana
                    Dana L. Christensen, Chief Judge, Presiding

                      Argued and Submitted February 7, 2017
                               Seattle, Washington

Before: FISHER, PAEZ, and CALLAHAN, Circuit Judges.


      Elizabeth Pritchard-Sleath (Sleath) worked for the Montana Development

Center from April 2009 until she was discharged in May 2011. She

brought this action against the Montana Department of Public Health and Human


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Services (the Department) alleging that the termination of her employment was

wrongful under Montana’s Wrongful Discharge from Employment Act (WDEA),

Montana Code Ann. §§ 39-2-901, 904, because her discharge was retaliatory and

not done in conformance with the Department’s policies. The District Court

granted the Department partial summary judgment pursuant to § 904(b), finding

that Sleath could not show that her discharge “was not for good cause.” However,

the District Court allowed Sleath’s claims of retaliation and failure to follow

policies, pursuant to § 904(a) and (c), to go to the jury. The jury found that the

Department had discharged Sleath in violation of the WDEA and that the discharge

had caused her $244,239 in lost wages and fringe benefits.

      The Department timely appealed, asserting that: (1) the District Court,

having determined that it had good cause to discharge Sleath, should have

dismissed the remaining claims under the WDEA; and (2) the District Court erred

in allowing the jury to determine retaliation without requiring Sleath to identify the

specific public policy in issue. We affirm.

      1. The Department asserts that the District Court’s grant of summary

judgment under § 904(b), as a matter of law, barred Sleath from prevailing under




                                           2
either subsection (a) or (c).1 As the Department raises only issues of law, the

standard of review is de novo. See F.B.T. Productions, LLC v. Aftermath Records,

621 F.3d 958, 962–64 (9th Cir. 2010).

      The WDEA provides that 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 probationary period of employment; or

      (c) the employer violated the express provisions of its own written
      personnel policy.

Mont. Code Ann. § 39-2-904(1).

       Although § 904 sets forth three bases for a claim for wrongful discharge, the

Department argues that the District Court’s grant of summary judgment as to

Sleath’s claim pursuant to § 904(b) meant that her discharge was for good cause

and could not have been the result of retaliation or failure to follow policies. This

argument is not persuasive.

      The Department has failed to show that this is Montana law. Rather, the

Montana Supreme Court has held that the WDEA “provides three bases upon


      1
              The Department did not file a motion after trial pursuant to Federal
Rule of Civil Procedure 50(b), and accordingly limits the issues it raises on appeal
to legal issues. See Plumhoff v. Rickard, 134 S. Ct. 2012, 2019 (2014); Unitherm
Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 404 (2006).
                                           3
which a terminated employee may bring a claim for wrongful discharge,” Motarie

v. Northerne Montana Joint Refuse Disposal District, 274 Mont. 239, 243 (1995),

and stated that “[t]he clear and unambiguous language of the statute provides that

proof of any one of the three elements will support a wrongful discharge action.”

Krebs v. Ryan Oldsmobile, 255 Mont. 291, 295 (1992); see also Ritchie v. Town of

Ennis, 320 Mont. 94, 100 (2004) (noting that it had “repeatedly considered the

WDEA as providing for three separate causes of action”). The Department’s

preclusion argument is contrary to the Montana Supreme Court’s determination

that § 904 provides for three separate causes of action and that “any one of the

three elements will support a wrongful discharge action.” Therefore, the District

Court properly held that its grant of summary judgment in regard to Sleath’s claim

under § 904(b) was not a bar to Sleath presenting her claims of retaliation and

failure to follow policies under § 904(a) and (c) to the jury.

      2. Challenges to the formulation of the jury instructions are reviewed for

abuse of discretion, but assertions that the instructions misstate the law are

reviewed de novo. Chess v. Dovey, 790 F.3d 961, 970 (9th Cir. 2015); Bird v.

Lewis & Clark Coll., 303 F.3d 1015, 1022 (9th Cir. 2002).

       The Department’s challenges to the jury instructions in this case are also not

persuasive. First, the Department failed to object to Instruction 12, which


                                           4
indicated that it was wrongful to discharge an employee in retaliation for her

“refusal to violate a public policy or for reporting a violation of public policy,” but

did not specify what particular public policy was in issue. Thus, the Department

failed to preserve the issue. Moreover, the Department’s underlying substantive

argument is not persuasive because the cited Montana cases discuss whether the

particular statutes raised in those cases set forth public policies, but do not hold

that a specific statute or policy needs to be included in a jury instruction. Nor was

the Department under any misapprehension, as it admits that Sleath had identified

the particular statutes and regulations she had in mind. In sum, the Department has

failed to show that it is entitled to any relief based on its challenges to the jury

instructions.

      The District Court’s judgment in favor of Sleath is AFFIRMED.




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