No. 8 6 - 9 4
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
PAM DRINKWALTER,
Plaintiff and Appellant,
-vs-
SHIPTON SUPPLY COMPANY, INC.,
a Montana Corporation, d/b/a
SHIPTON'S BIG R, and GREG CARROLL,
Defendants and Respondents.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable William J. Speare, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Kinnard & Woodward; Dave Kinnard argued, Billings,
Montana
For Respondent :
Moulton, Bellingham, Longo & Mather; W. Anderson
Forsythe argued for G. Carroll, Billings, Montana
For Amicus Curiae:
Janice Frankino Doggett argued for Human Rights
Commission, Helena, Montana
Submitted: December 2, 1986
Decided: F e b r u a r y 23, 1987
F E 2 3 1987
Filed:
~
Clerk
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
The District Court of the Thirteenth Judicial District,
County of Yellowstone, granted summary judgment January 27,
1986, in favor of defendants, Shipton Supply Company and Greg
Carroll. The judgment was premised on plaintiff, Pam
Drinkwalter's failure to obtain a right-to-sue letter from
the Human Rights Commission prior to filing a civil suit
alleging sexual harassment. Pam Drinkwalter appeals.
Pam Drinkwalter was employed by Shipton Supply Company
from October of 1980 through July of 1983. Greg Carroll, a
son of the president of Shipton Supply Company, was
Drinkwalter's supervisor. In early July of 1983, Drinkwalter
told Carroll's brother, also a supervisor for Shipton Supply,
that she was perturbed by sexual comments and actions
directed by Greg Carroll to herself and other individuals.
She further stated that if the behavior continued, she would
quit her job. The behavior ceased; however, Drinkwalter
still terminated her employment with Shipton Supply in
mid-July.
Drinkwalter subsequently filed a claim with the State of
Montana, Department of Labor and Industry, for unemployment
compensation benefits. Drinkwalter alleged that Greg
Carroll's crude behavior established sufficient cause to
leave her employment. Carroll adamantly disagreed,
contending Drinkwalter quit work because her request not to
work weekends was denied. The Department of Labor and
Industry found in favor of Drinkwalter and granted
unemployment compensation benefits.
Thereafter, Drinkwalter contacted new counsel for the
purpose of pursuing a civil suit.
The complaint in this action was filed fifteen months
after Drinkwalter left her job, October 9, 1984. It is a
multiple-count complaint. Count one alleges acts which
constitute sexual harassment. Count two alleges that the
acts constituted a breach by defendants of the covenant of
good faith and fair dealing in an employment relationship.
Count three contends that Shipton Supply Company is liable
under a negligence theory for failure to properly
investigate, correct and prevent Greg Carroll's behavior.
Finally, count four alleges that Greg Carroll's behavior
constituted a tortious interference with the contract of
employment between Drinkwalter and Shipton Supply.
In their answer, defendants deny most of the allegations
in the complaint and present the court with several
affirmative defenses.
The parties thereafter prepared to try the case. On
October 17, 1985, defendants moved for summary judgment,
alleging in pertinent part:
1. Plaintiff's Complaint states a cause of action
cognizable under Montana's Human Rights Act, which
Act requires a "right to sue" letter be issued by
the Human Rights Commission before suit in district
court may be brought. No such right to sue letter
was ever issued in this matter.
2. Plaintiff's Complaint fails to state a cause of
action cognizable under Montana law separate and
apart from specific rights and remedies provided in
Montana's Human Rights Act.
Following extensive briefing and a hearing on the
matter, the trial judge granted defendants' motion for
summary judgment. In his memorandum and order, the trial
judge found that each of the counts in Drinkwalter's
complaint was premised on allegations of sexual harassment
and that the sexual harassment was of the type contemplated
by the Montana Human Rights Act. He then determined that the
Montana Human Rights Act provided the exclusive remedy by
which the alleged wrongs could be remedied. Drinkwalter's
complaint was "dismissed without prejudice with the
understanding that Plaintiff may refile her Complaint within
90 days of obtaining a so-called 'Right to Sue' letter from
the Montana Human Rights Commission."
Three issues are raised on appeal:
1. Do the provisions of the Montana Human Rights Act
provide the exclusive remedy for claims of sexual harassment
in Montana?
2. Do 5s 49-2-501(2) and 49-2-509(2), MCA, prescribe a
constitutionally valid 180 day statute of limitations for all
claims of sexual harassment in Montana?
3. Did the District Court err in granting defendants'
motion for summary judgment - -
in toto?
There appears to be no disagreement among the parties
that the actions of Greg Carroll complained of by Pam
Drinkwalter, if true, constitute sexual harassment. The
controversy arises with respect to the appropriate remedy for
the harassment. Defendants contend the Montana Human Rights
Act provides the sole and exclusive remedy in sexual
harassment suits. We disagree.
Section 49-2-303(1)(a), MCA, of the Montana Human Rights
~ct, provides:
Discrimination in employment. (1 It is an
unlawful discriminatory practice for:
(a) an employer to refuse employment to a person,
to bar him from employment, or to discriminate
against him in compensation or in a term,
condition, or privilege of employment because of
his race, creed, religion, color, or national
origin or because of his age, physical or mental
handicap, marital status, or sex when the
reasonable demands of the position do not require
an age, physical or mental handicap, marital
status, or sex distinction.
Our act is very similar to the Federal Anti-Sex
Discrimination statutes. The federal act provides at 42
U.S.C. S 2000e-2(a) (2) that:
It shall be an unlawful employment practice for an
employer-
(2) to limit, segregate, or classify his employees
or applicants for employment in any way which would
deprive or tend to deprive any individual of
employment opportunities or otherwise adversely
affect his status as an employee, because of such
individual's race, color, religion, sex, or
national origin.
Federal courts have interpreted the term "sexual
discrimination" as found in 42 U.S.C. S 2000e-2 (a)(2) to
encompass sexual harassment. See Barnes v. Costle (D.C. Cir.
1977), 561 F.2d 983 and Bundy v. Jackson (D.C. ~ i r .1981),
641 F.2d 934. We view this as a broad interpretation of the
term "sex discrimination," explained, perhaps, by the
absence of federal common law. Traditional remedies for
sexual harassment are rooted in common law. Since there is
no federal common law remedy for sexual harassment, it is
defined and treated as sexual discrimination.
Such is not the situation in Montana. Our 1972
Constitution provides in article 11, that:
The dignity of the human being is inviolable. No
person shall be denied the equal protection of the
laws. Neither the state nor any person, firm,
corporation, or institution shall discriminate
against any person in the exercise of his civil or
political rights on account of race, color, sex,
culture, social origin or condition, or political
or religious ideas.
In addition, there are several common law causes of action
under which sexual harassment in the work place may be
prosecuted. This Court has recognized a cause of action for
a discharge from employment which violates public policy.
Dare v. Montana Petroleum Marketing Co. (Mont. 1984), 687
P.2d 1015, 41 St.Rep. 1735; Nye v. Department of Livestock
(1982), 196 Mont. 222, 639 P.2d 498. Sexual harassment is
against public policy. Holien v. Sears, Roebuck and Co. (Or.
1984), 689 P.2d 1292; Chamberlin v. 101 Realty, Inc. (D.N.H.
1985), 626 F.Supp. 865. It also violates public policy
embodied in Montana's Constitution and various
anti-discrimination statutes. See 55 49-1-101 and -102, MCA.
Montana law also recognizes a cause of action for breach
of an employment contract's implied covenant of good faith
and fair dealing. Crenshaw v. Bozeman Deaconess Hospital.
(Mont. 1984), 693 P.2d 487, 41 St.Rep. 2251; Gates v. Life of
Montana Insurance Co. (1982), 196 Mont. 178, 638 P. 2d 1063.
Good faith and fair dealing preclude sexual harassment.
Although the final determination rests with the fact finder,
sexual harassment, as alleged by Pam Drinkwalter, can result
in breach of the implied covenant of good faith and fair
dealing.
In her complaint, Pam Drinkwalter also alleges tortious
interference with her employment contract and negligent
employee supervision by Shipton Supply. We need not
determine the merits of these charges at this time. It is
sufficient for us to hold only that the facts alleged by Pam
Drinkwalter could support common law theories rooted in tort
law distinct from and in addition to sexual discrimination
charges covered by Montana's Human Rights Act. To hold
otherwise would result in the elimination of established
common law causes of action. Absent a clear indication of
the legislature's intent to abrogate existing common law
remedies, we must construe new statutory remedies as existing
in addition to, rather than instead of, the common law
remedies.
As a general rule, if a statute which provides for
a new remedy shows no intention to negate, either
expressly or by necessary implication, a
pre-existing common law remedy, the new remedy will
be regarded as merely cumulative, rather than
exclusive, with the result that a plaintiff may
resort to either the pre-existing remedy or the new
remedy. (Citations omitted.)
Brown v. Transcon Lines (Or. 1978), 588 ~ . 2 d1087 at 1093.
Further, claimants would be forced to pursue
administrative remedies for wrongs traditionally righted
within the judicial system. The courthouse would be closed
to individuals against whom a tort had been committed, thus
contravening our constitutional right of access to the courts
found in art. 11, S 16 of the 1972 Montana Constitution. Our
citizens' right to a trial by jury under art. IS, S 26 of the
1972 Montana Constitution, would be abridged as well.
If we were to decide the Human Rights Act provides the
sole and exclusive remedy for all claims arising out of
sexual harassment, we would also be imposing the 180 day
statute of limitation found in S 49-2-501(2), MCA, on every
possible remedy. Under our decision in No11 v. City of
Bozeman (1975), 166 Mont. 504, 534 P. 2d 880, such a short
period of limitation would be invalid. We are to strive, if
at all possible, to construe a statute in a constitutional
manner. All doubts with respect to statutory interpretation
must be resolved in favor of constitutional validity. Noll,
166 Mont. at 507, 534 P.2d a.t 881. We therefore find the
imposition of the 180 day statute of limitations to be
further proof of the legislature's intent that the Human
Rights Act not be the sole remedy for acts which also give
rise to a cause of action independent of the statute.
If Montana common law failed to provide a remedy for the
tort of sexual harassment, we would not hesitate to include
sexual harassment as a form of sex discrimination covered by
the Human Rights Act. However, because there are other
remedies available to sexual harassment victims, we see no
reason to construe the Human Rights Act so broadly. Instead,
we adopt a more narrow construction of the Act and find that
it does not provide the sole and exclusive remedy for sexual
harassment.
The trial court's order granting Shipton's motion for
summary judgment and requiring that Pam Drinkwalter obtain a
right-to-sue letter is reversed. We remand for further
proceedings.
We concur:
Justices
Mr. Justice L. C. Gulbrandson, dissenting.
1 respectfully dissent. I dissent specifically from
those parts of the majority decision which, (1) reverse the
grant of summary judgment as to count I which alleges sexual
harassment, and (2) appear to hold that if the Human Rights
Act were the exclusive remedy for sexual harassment on the
job, then the Act's 180 day statute of limitation would be
unconstitutional. I express no opinion as to the majority's
reversal of summary judgment as to counts 11, 111, & IV of
the complaint.
Count I of the complaint accuses the defendant of
severely sexually harassing the plaintiff. The District
Court correctly granted summary judgment to the defendant as
to this count because the plaintiff failed to comply with the
provisions of Montana's Human Rights Act. The Act provides
the remedy in Montana for sexual discrimination in the
workplace.
The majority is unclear as to whether sexual harassment
is sexual discrimination under the Act. At one point, the
majority states:
If Montana common law failed to provide a
remedy for the tort of sexual harassment,
we would not hesitate to include sexual
harassment as a form of sex
discrimination covered by the Human
Rights Act. However, because there are
other remedies available to sexual
harassment victims, we see no reason to
construe the Human Rights Act so broadly.
This passage clearly seems to say that sexual harassment is
not sexual discrimination under the Act. However the very
next sentence in the majority opinion states,
Instead, we adopt a more narrow
construction of the Act and find that it
does not provide the sole and exclusive
remedy for sexual harassment.
This sentence clearly seems to say that sexual harassment -
can
be sexual discrimination under the Act.
The best view is that sexual harassment can be, and in
this case is, sexual discrimination under the Act. Here,
plaintiff's supervisor allegedly discriminated against her on
the basis of sex by sexually harassing her (comments,
gestures, comparisons and touching) when he would not have
done so to a male employee. As pointed out by the majority,
federal courts hold that sexual harassment is sexual
discrimination. "The Montana Human Rights Act, Title 49, MCA,
is closely modeled after Title VII [of the Federal Civil
Rights Act of 1964, 42 U.S.C. section 2000e et seq.], and
reference to pertinent federal case law is both useful and
appropriate." Snell v. Montana Dakota Utilities Co. (19821,
198 Mont. 56, 62, 643 P.2d 841, 844. Both common sense and
federal precedents require a holding that sexual harassment
is sexual discrimination.
Given that sexual harassment is sexual discrimination
under the Act, the exclusive remedy for that harassment
(count I of the complaint) is provided by the Act. There is
no common law remedy for sexual harassment, in and of itself,
in Montana. The majority cites no case law establishing such
a remedy.
The remedy in Montana for sexual harassment, in and of
itself (as alleged in count I), is statutory under the Human
Rights Act. Section 49-2-506, MCA, gives the Human Rights
Commission broad powers to provide relief for discrimination.
The Commission may "require any reasonable measure to correct
the discriminatory practice and to rectify any harm.
pecuniary or otherwise, to the person discriminated
against ... " The Act requires a person complaining of
discrimination to first file a complaint with the Commission.
Under $ 49-2-509, MCA, the Commission can issue a letter
entitling the complainant to proceed in district court if
certain prerequisites are met. This is the "right to sue"
letter.
In Walker v. Anaconda Co. (D.Ct.Mont. 1981), 520
F.Supp. 1143, upheld on appeal without opinion, 698 F. 2d
1228, Judge Russell Smith addressed the exclusive nature of
the remedy provided by the Act. The Walker court dismissed
an age discrimination in employment action because the
plaintiff failed to proceed under the Act. The court stated:
There is no Montana case law on the
subject, but an old rule, and one of
almost universal application, is that
where "a statute creates a right and
prescribes a remedy, the statutory remedy
is exclusive. (Citations omitted.)
Walker, 520 F.Supp at 1144. The court explained,
The general rule [cited immediately
above] should be applied here because all
of the indications are that the
legislature intended the remedies
provided by it to be exclusive, and there
are no indications to the contrary
... It is clear that the purpose of the
act was to eliminate discrimination in
multiple respects. To accomplish this,
the legislature did not authorize private
suits.
Walker, 520 F.Supp at 1144. A New Mexico court also held,
relying on Walker, that compliance with the grievance
procedure in the New Mexico Human Rights Act was a
prerequisite to suit under the Act. See, Jaramillo v. J.C.
penny Co., Inc. (N.M.App. 1985), 694 P.2d 528. In my
opinion, the Walker decision states the correct rule.
One final point made in Walker calls for elaboration.
The legislative history of the Act indicates that the
legislature intended the remedy under the Act to be
exclusive. There is no indication that the legislature
intended that a plaintiff could bypass the Act and file a
discrimination complaint directly in district court.
The majority appears to hold that if the Human Rights
Act were the exclusive remedy for sexual harassment in
employment, then the Act's 180 day statute of limitations
would be invalid. The majority states that under Noll v.
City of Bozeman (1975), 166 Mont. 504, 534 P.2d 880, such a
short period of limitation is invalid. The majority's
reliance appears to be misplaced. In Noll, the court
addressed a statutory provision which prohibited allowing any
claim against a governmental entity unless the claim had been
presented and filed with the Secretary of State within 120
days. This Court found that the provision violated a state
constitutional provision abolishing the concept of sovereign
immunity. The No11 holding was not predicated upon the
length of the 120 day limit. The basis of the holding was
that there was already a statute of limitations for the type
of suit involved and the challenged provision created an
additional condition precedent (filing with the Secretary -of
State within 120 days). The decision is not predicated upon
the length of the period. Indeed, the No11 court
specifically conceded that statutes of limitations are within
the power of the legislature to enact. The challenged
statute in No11 was struck down for imposing a prerequisite
in addition to the statute of limitations.
In Eagle Communications v. Treas. of Flathead Cty.
(Mont. 1984), 685 P.2d 912, 917, 41 St.Rep. 1303, 1309, this
Court stated the rule which controls this issue, i.e.,
"The rule is well settled in this country
that whenever a statute grants a right
which did not exist at common law, and
prescribes the time within which the
right must be exercised, the limitation
thus imposed does not affect the remedy
merely, but is of the essence of the
right itself, and one who seeks to
enforce such right must show
affirmatively that he has brought his
action within the time fixed by the
statute; and if he fails in this regard,
he fails to disclose any right to relief
under the statute." (Citation omitted.)
Tn my opinion, the stated 180
1