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Heiat v. Eastern Montana College3/4/1996
ds me to believe that our statement that the employee must "demonstrate with specific facts that the employer's explanation is a pretext," imposes any different or higher burden of proof on the plaintiff in a summary judgment-discrimination case than in any other case.
Again, in the context of a non-discrimination case, we recently reiterated the well-established rule as to plaintiff's burden in opposing a motion for summary judgment:
Once the movant has presented evidence to support his or her motion, the party opposing summary judgment must present material and substantial evidence, rather than mere conclusory or speculative statements, to raise a genuine issue of material fact.
Howard v. Conlin Furniture No. 2, Inc. (1995), 272 Mont. 433, 437, 901 P.2d 116, 119, a wrongful discharge-summary judgment case. See also Thornton v. Songstad (1994), 263 Mont. 390, 868 P.2d 633, a contract case involving the sale of real property, wherein we stated that the non-moving party's proof must be substantial and consist of specific facts and that reliance on speculative, fanciful or conclusory statements is insufficient. Thornton, 868 P.2d at 638. In my view, Kenyon's third step does not require of plaintiff any more than that she present material and substantial factual evidence of pretext, nor does that step allow her to prevail merely on conclusion and speculation. I do not believe that, under Kenyon, the plaintiff is subjected to a trial burden of proof in opposing summary judgment; she is simply required to raise a factually based inference of pretext, but nothing more.
Again, I believe our opinion and our approach here is correct. It should now be crystal clear who bears which burden and what is the correct standard of proof in summary judgment-discrimination cases. Nevertheless, for the very reasons that we set out in our opinion, I would have also concluded under Kenyon that Nafisseh had met her burden to raise a factually based inference that EMC's explanation was pretextual.
Accordingly, I specially concur.
JUSTICE GRAY specially concurring.
I concur in the result we reach in this case, but disagree strenuously with portions of the analysis under which it is reached. In this regard, I join in the analysis contained in Justice Nelson's special concurrence.
I write separately to state my dismay over the unnecessary and unwise step of "overruling" Kenyon which is taken here by the three Justices who have signed the plurality opinion. First, Kenyon can and should be clarified, but not overruled, for the reasons stated by Justice Nelson. Indeed, no party to this case suggested overruling Kenyon, a unanimous — and recent — opinion by this Court.
Moreover, the statement in the plurality opinion that "the district courts" are requiring plaintiffs in discrimination cases to do more than merely raise an issue of material fact is questionably sweeping, at best, given that this is the first such case we have seen. In addition, the fact that the District Court in this case applied the McDonnell-Douglas trial burden, rather than the summary judgment burden established by this Court in Kenyon, is hardly a reason to overrule Kenyon. Indeed, had the District Court applied Kenyon, but done so erroneously, the proper course for this Court would be to correct the District Court, not to overrule Kenyon. To suggest that a district court's error in either missing a case altogether or applying it erroneously is a proper basis for overruling that case is certainly a new approach to stare decisis.
My major concern with the plurality opinion, however, is just that: it is merely a plura
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