Montana Human Rights Case: Helena restaurant employer succeeds in showing legitimate, non-discriminatory reasons to fire employee

December 14, 2020

By: Lily Crespo Esq.

Headline: An employee alleging retaliation for protected activity must show they were fired BECAUSE of their engagement in that protected activity. In this case, the employee failed to show her employer’s decision to fire her was related to her opposition to his discriminatory hiring practices.

What happened? A hearing officer with the Montana Human Rights Commission found in favor of a local bar owner because the employee failed to show a causal link between her protected activity and her employer’s decision to discharge her. As mentioned in the decision:

For one to establish causation in a prima facie case of retaliation only on the basis of “temporal proximity between an employer’s knowledge of protected activity and an adverse employment action,” “the temporary proximity must be very close.” Breeden (US 2001).

What is the background of this case? Mike Wieck has run Smith’s Bar in East Helena since 2013 for his mother. In August of 2016, Wieck hired Stacie Loppie as a server then as general manager. Over time Wieck’s and Loppie’s relationship grew increasingly strained and unpleasant.

• Over a couple years it became clear through records of text messages that Wieck often expressed discriminatory opinions (racist and sexist) in the realm of employee hiring and firing.
• Importantly, Loppie never got into big fights with Wieck about these issues. The fact that these conversations existed did not mean Loppie was fired because she opposed Wieck’s discriminatory hiring practices.

To the contrary, Loppie gave Wieck good reasons to fire her that had nothing to do with discriminatory comments or hiring practices.

What is the legal framework for this case? Montana law prohibits retaliation in both public and private employment because of protected activity. Mont. Code Ann. §§ 49-2-301 and 49-3-209.

• The elements of a retaliation case are:
  • (1) the plaintiff engaged in a protected activity;
  • (2) thereafter, the employer took an adverse employment action against the plaintiff; and
  • (3) a causal link existed between the protected activity and the employer’s action. Beaver v. DNRC, 2003 MT 287, ¶71, 318 Mont. 35, 78 P.3d 857.

In cases arising under the Montana Human Rights Act (MHRA), the elements of a prima facie case of retaliation in the employment context vary, but generally consist of proof that the charging party was qualified for employment, engaged in a protected activity, and was subjected to adverse action, as well as a causal connection or other circumstances raising a reasonable inference that the charging party was treated differently because of engagement in the protected activity. Admin. R Mont. 24.9.610(2).

What did the hearing office decide? Loppie approached Wieck about hiring African-Americans in 8/17 and also approached him about hiring various women and men throughout her tenure. He hired many of her proposed hires. There is no evidence that he interfered with anyone’s employment.

• The texts between Loppie and Wieck regarding hiring decisions were not dramatic, nor was there any credible evidence that they engaged in a heated verbal exchange over hiring.
• Loppie failed to show that Wieck’s decision to fire her was related to her opposition to his discriminatory hiring practices.
• Wieck pointed to various performance concerns including cleanliness of the bar and restaurant, maintenance of beer signs and the ATM, and staff turnover.
• The most likely reasons for his decision to discharge her were financial performance and the final incident at the bank, neither of which can be considered arbitrary or capricious or false. He consistently voiced concerns about financial performance.
• Replete throughout the texts are his concerns that the business was not performing at the level it had during the previous year. He routinely questioned why it was not performing well and expressed concern that it could not continue a downward spiral.
• Loppie argued that discharging her for the bank incident was inappropriate given that it was not her primary duty and was typically performed by Bartole. She ignored that she was the GM. Her actions while performing the duties reasonably required of that role reflected on the business and Wieck.

The bottomline: Smith’s succeeded in showing a legitimate, non-discriminatory reason for discharging Loppie.

What is the name of the case and where can you read it? The name of the case is Loppie v. GBR dba Smith’s Place, 413-2019, 7/31/20. Read it here.

As you consider these and other issues, we recommend you speak with your school lawyer or contact Bea, Kevin, Megan, Beth, and Lily by email or at 406-542-1300 to discuss these issues.