Kimberly Asper v. Costco Wholesale Corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KIMBERLY ASPER,
Plaintiff - Appellant,
v.
COSTCO WHOLESALE
CORPORATION,
Defendant - Appellee.
No. 13-35695
D.C. No. 9:13-cv-00050-DLC
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, Chief District Judge, Presiding
Argued and Submitted January 22, 2015
Billings, Montana
Before: THOMAS, Chief Judge, and HAWKINS and CHRISTEN, Circuit Judges.
Kimberly Asper appeals the district court’s order dismissing her claims,
which arise under Montana’s Wrongful Discharge from Employment Act
(WDEA), for failure to state a claim under Federal Rule of Civil Procedure
12(b)(6). We have jurisdiction under 28 U.S.C. § 1291 and review the order of
FILED
JAN 29 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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dismissal de novo. Wilson v. Hewlett–Packard Co., 668 F.3d 1136, 1140 (9th Cir.
2012). We affirm. Because the parties are familiar with the factual and legal
history of the case, we need not recount it here.
I
The district court correctly concluded that the plaintiff’s claim for relief was
not cognizable under the governing statute. The WDEA “provides the exclusive
remedy for a wrongful discharge from employment” under Montana law. M ONT .
CODE ANN. § 39-2-902. The statute “sets forth certain rights and remedies with
respect to wrongful discharge.” Id. In particular, it provides:
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 employee’s probationary period of employment;
or
(c) the employer violated the express provisions of its own written
personnel policy.
Id. § 39-2-904(1). 1
The statute defines the term “discharge” to include any “termination of
employment, including resignation, elimination of the job, layoff for lack of work,
1 WDEA exempts certain employees from this provision, but those
exemptions are not relevant here.
2

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failure to recall or rehire, and any other cutback in the number of employees for a
legitimate business reason.” Id. § 39-2-903(2).
Relying on this statutory definition, Asper contends that Costco’s refusal to
rehire her after she was wrongfully terminated in 2007 qualifies as a second
“discharge” under WDEA. Although she offers a variety of different theories to
explain why this alleged discharge was “wrongful” under WDEA, all of her
theories of liability rest on her construction of the term “discharge.”
The district court correctly concluded that Asper’s construction of the term
“discharge” in the WDEA was incorrect. Although the statute’s “Remedies”
section permits wrongfully discharged employees to recover certain types of
damages awards, id. § 39-2-905, it does not create any right to be rehired or
reinstated by the employer. Thus, to hold that an employer who wrongfully
discharges an employee must subsequently rehire that employee would
impermissibly create a remedy that the statute itself does not recognize.
Although Asper states that she never explicitly sought reinstatement as a
remedy for her 2007 wrongful discharge, her theory of liability in this case
assumes that WDEA implicitly creates such a remedy. Indeed, she has not
identified any other contractual, regulatory, or statutory provision—besides
WDEA itself—to suggest that Costco was obliged to rehire her after her 2007
3

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termination.2 Instead, her claims rest on the premise that her success in the prior
WDEA lawsuit imposed a legal duty on Costco to rehire her.
That premise is not supported by Montana case law. If anything, the
relevant Montana Supreme Court cases suggest that an employer cannot be held
liable under WDEA for its “failure to recall or rehire” a former employee unless
that employer has some independent legal duty—such as a contractual
obligation—to do so. See Kneeland v. Luzenac America, Inc., 289 Mont. 201, 208-
10 (1998) (holding that plaintiff’s WDEA claim was “without merit” where
plaintiff was “unable to identify any basis for his claim that [the employer] had a
duty to rehire” him); Arnold v. Boise Cascade Corp., 259 Mont. 259, 263, 267
(1993) (affirming verdict in favor of WDEA plaintiff where the jury had made a
specific finding that the employer “had an obligation to recall or rehire” him).
2 Asper suggests in her reply brief that Costco’s personnel policy creates
such an obligation but she fails to identify any provision of the policy that could
reasonably be construed as an express promise to rehire a wrongfully terminated
employee. See MONT . CODE ANN. § 39-2-904(1)(c) (providing that a discharge is
wrongful if “the employer violated the express provisions of its own written
personnel policy” (emphasis added)). More importantly, Asper’s complaint does
not allege that Costco’s personnel policy includes such a promise or otherwise
imposes a legal duty on Costco to rehire her. The complaint’s only references to
the personnel policy revolve around her allegation that she was wrongly
disciplined for violations of the policy.
4

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The statutory definition of “rehire” that Asper cites for support does not
suggest otherwise. See MONT . CODE ANN. § 40-5-901. By its own terms, that
statute provides definitions for a different part of the Montana Code Annotated and
does not apply to WDEA, which is codified under a different title of the Code.
Because Asper failed to state a claim under WDEA, the district court’s order
must be affirmed.
II
Asper contends that she should be granted leave to amend her complaint.
She seeks leave “to specifically articulate that in addition to the WDEA, her
entitlement to be rehired is contained in Costco’s written personnel policies.”
However, Asper has not identified any written policies specific enough to support a
viable claim under that theory. See MONT . CODE ANN. § 39-2-904(1)( C) (providing
that a discharge is only wrongful if the “employer violated the express provisions
of its own written personnel policy” (emphasis added)). Accordingly, because
amendment would be futile, the district court was not required to grant Asper leave
to amend.
AFFIRMED.
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