No. 90-073
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
CAROL THOMAS HARRISON,
Plaintiff and Appellant,
JAMES EDWARD CHANCE,
Defendant and Respondent.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Ravalli,
The Honorable Jack L. Green, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Rex Palmer, Attorneys, Inc., Missoula, Montana
For Respondent:
Samuel M. Warren, Worden, Thane & Haines, Missoula,
Montana
For Amicus Curiae:
David Rusoff, Montana Human Rights Commission,
Helena, Montana
Submitted on Briefs: June 14, 1990
B Decided: ~ u g u s t20, 1990
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Appellant Carol Harrison appeals an order of the Fourth
Judicial District Court, Ravalli County, granting summary judgment
to respondent James Chance on the ground that the Human Rights
Commission provides the exclusive remedy for her claim of sexual
harassment against her employer. Harrison also appeals the
District Court's award of costs to the respondent and the court's
refusal to impose Rule 11, M.R.Civ.P., sanctions. We affirm with
a minor exception.
ISSUES
1. Did the District Court err in granting the respondent
summary judgment on the grounds that the exclusive remedy provision
of the Montana Human Rights Act, 5 49-2-509(7), MCA, requires the
appellant to pursue her sexual harassment claim through the Human
Rights Commission rather than filing a complaint in district court?
2. Did the District Court err in holding that the exclusive
remedy provision of 5 49-2-509 (7), MCA, applied to the appellant Is
claim even though the acts complained of pre-dated passage of
provision?
3. Did the District Court err in not holding that application
of the Montana Human Rights Act's exclusive remedy provision and
180-day statute of limitations unconstitutionally deprived the
appellant of her rights to contract, substantive due process, and
equal protection under the Montana and United States Constitutions?
2
4. Did the District Court err in refusing to sanction the
respondent under Rule 11, M.R.Civ.P., for including non-compensable
expenses in his memorandum of costs?
5. Did the District Court err in awarding the respondent the
cost of taking the appellant's deposition?
FACTS
Respondent Chance employed appellant Harrison from September
1986 to March 1987 as a horse trainer. Harrison alleges that
during her employment, Chance repeatedly made unwelcome sexual
advances culminating in a demand that she either "put out or get
out.gt Harrison responded to the ultimatum by resigning and filing
a tort action against Chance in the Fourth Judicial District Court.
The District Court, however, granted Chance's motion for summary
judgment reasoning that under 5 49-2-509(7), MCA, proceedings
before the Montana Human Rights Commission provided the exclusive
remedy for actions based on sexual harassment. The court also
awarded the respondent damages and refused the appellant's motion
for Rule 11, M.R.Civ.P., sanctions against the respondent.
Harrison now appeals those orders.
THE EXCLUSIVE REMEDY
Did the District Court err in granting the respondent summary
judgment on the grounds that the exclusive remedy provision of the
Montana Human Rights Act, 5 49-2-509(7), MCA, requires the
3
appellant to pursue her sexual harassment claim through the Human
Rights commission rather than filing a complaint in district court?
Summary judgment may be granted when there is no genuine issue
of material fact and the movant is entitled to a judgment as a
matter of law. Rule 56(c), M.R.Civ.P. Unlike most summary
judgment appeals, the question here is not whether there is an
issue of fact; the question is whether Chance is entitled to
judgment as a matter of law. Harrison argues that he is not for
a number of interrelated reasons. To simplify discussion, we will
consider each reason separately.
Drinkwalter v. Shipton Sup~lvCo., Inc.
The appellant relies on Drinkwalter v. Shipton Supply Co.,
Inc. (1987), 225 Mont. 380, 732 P.2d 1335, in arguing that the
Montana Human Rights Act does not provide the exclusive remedy for
sexually discriminatory acts in the work place. Like Harrison, the
plaintiff in Drinkwalter chose to file a district court action
alleging several torts based on sexual harassment by her employer
rather than filing with the Human Rights Commission. This Court
held that, because the legislature had not indicated a clear intent
to abolish other common law remedies, the Human Rights Commission
did not provide the exclusive remedy for sexual harassment.
Drinkwalter, 225 Mont. at 384, 732 P.2d at 1338.
We do not agree that Drinkwalter is controlling; a 1987
amendment to the Human Rights Act legislatively overruled Drink-
4
walter. At the time Drinkwalter was decided, the Montana Human
Rights Act did not contain the exclusive remedy provision of 5 49-
2-509 (7), MCA. During hearings before the Senate Judiciary
Committee to consider various amendments to the Human Rights Act,
LeRoy H. Schramm, Chief Legal Counsel of the Montana University
System, proposed an additional amendment based on the following
rationale:
On February 23, 1987, the Montana Supreme
Court decided the case of Drinkwalter v.
Shi~ton. Under the holding of that case,
persons alleging acts that violate the dis-
crimination provisions of the Human Rights Act
and the Governmental Code of Fair Practices
need no longer vindicate their rights under
the provisions of these acts. Rather, they
are allowed to completely bypass the admini-
strative procedures set up by statute and go
directly to court alleging tort theories of
recovery grounded on the individual dignities
clause of the constitution. This amendment
would make clear that the statutory procedures
for discrimination are exclusive remedies and
cannot be bypassed.
Hearing on House Bill 393 Before the Senate Judiciary Committee,
50th Legislature, (March 20, 1987), Exhibit No. 3. The 1987
Legislature adopted the proposed amendment without change or
comment as 5 49-2-509(7), MCA. It reads:
The provisions of this chapter [ !jB 49-2-101
through -601, MCA] establish the exclusive
remedy for acts constituting an alleged viola-
tion of this chapter, including acts that may
otherwise also constitute a violation of the
discrimination provisions of Article 11,
section 4, of the Montana constitution or 49-
1-102. No other claim or request for relief
based upon such acts may be entertained by a
district court other than by the procedures
specified in this chapter.
While it is not clear that the legislature adopted Chief Counsel
Schramrn's rationale, the passage of the exclusive remedy provision
so close in the wake of Drinkwalter and the plain language of the
provision indicate that the legislature intended the procedures of
the Human Rights Commission provide the exclusive remedy for
discrimination in employment.
Harassment vs. Discrimination
Harrison argues that her claim does not fall under the Human
Rights Act because Chancels alleged acts were sexual harassment,
not sexual discrimination. The appellant correctly points out that
in Drinkwalter this Court stated in dicta that sexual harassment
is not sexual discrimination subject to the Human Rights Act.
Drinkwalter, 225 Mont. at 385, 732 P.2d at 1339. The current
authority, however, overwhelmingly supports the opposite con-
clusion.
The Human Rights Commission itself defines sexual harassment
as sexual discrimination. In the construction of a statute, this
Court gives deference to the interpretations of the agency charged
with its administration. State v. Midland Materials Co. (1983),
204 Mont. 65, 70, 662 P.2d 1322, 1325. The Commission has
explicitly adopted the federal Guidelines on Sexual Discrimination
promulgated by the United States Equal Employment Opportunity
Commission. A.R.M. 24.9.1407. Those guidelines provide:
Harassment on the basis of sex is a violation
of Sec. 703 of Title VII. Unwelcome sexual
advances, requests for sexual favors, and
other verbal or physical conduct of a sexual
nature constitute sexual harassment when (1)
submission to such conduct is made either
explicitly or implicitly a term or condition
of an individual's employment, (2) submission
to or rejection of such conduct by an indivi-
dual is used as the basis for employment
decisions affecting such individual, or (3)
such conduct has the purpose or effect of
unreasonably interfering with an individual's
work performance or creating an intimidating,
hostile, or offensive working environment.
29 C.F.R. 5 1604.11(a).
Other jurisdictions' interpretations of laws similar to
Montana's Human Rights Act also provide persuasive evidence that
sexual harassment is sexual discrimination. Because the Montana
Human Rights Act was closely modeled after Title VII, reference to
federal case law is both appropriate and helpful in construing the
Montana Human Rights Act. Johnson v. Bozeman School Dist. No. 7
(1987), 226 Mont. 134, 139, 734 P.2d 209, 212. The United States
Supreme Court holds that under Title VII,
Without question, when a supervisor sexually
harasses a subordinate because of the subor-
dinate's sex, that supervisor "discrimi-
nate[sI1l on the basis of sex.
Meritor Savings Bank, FSB v. Vinson (1986), 477 U.S. 57, 64, 106
S.Ct. 2399, 2404, 91 L.Ed.2d 49, 58. Furthermore, every state
considering the issue, as well as the District of Columbia, have
reached the same conclusion in construing their human rights acts.
Holien v. Sears, Roebuck and Co. (Or. 1984), 689 P.2d 1292, 1299;
Howard Univ. v. Best (D.C. App. 1984), 484 A.2d 958, 978; Continen-
tal Can Co., Inc. v. State (Minn. 1980), 297 N.W.2d 241, 249; see
also Glasgow v. Georgia-Pac. Corp. (Wash. 1985), 693 P.2d 708, 712.
The reason behind this rule is apparent. When sexual
harassment is directed at an employee solely because of gender,
the employee is faced with a working environment fundamentally
different from that faced by an employee of the opposite gender.
Continental Can Co., 297 N.W.2d at 248. That difference con-
stitutes sexual discrimination in employment. We hold that sexual
harassment is sexual discrimination under the Montana Human Rights
Act.
The Bisexual Exception
Harrison argues that Chance's acts fall under an exception to
the general rule that sexual harassment is sexual discrimination
and therefore, are not subject to the Human Rights Act. A number
of federal courts have noted that a bisexual supervisor who has
harassed both male and female employees is not liable for sexual
discrimination. Although the supervisor may have committed a
variety of torts, as an equal opportunity lecher, the supervisor
has not violated Title VII. See Henson v. City of Dundee (11th
Cir. 1982), 682 F.2d 897, 904; Barnes v. Costle (D.C. Cir. 1977),
561 F.2d 983, 990, n.55. Harrison argues that Chance did not
8
discriminate on the basis of gender because he made sexual advances
to both her and her son.
The parties' primary contention is whether the allegation of
bisexual harassment was properly before the District Court on
summary judgment. Uniform District Court Rule 4 ( a ) states in part,
"When any motion is filed making reference to discovery, the party
filing the motion shall submit with the motion relevant unfiled
documents.It (Emphasis added.) While the parties debate the
meaning of "filing" and "relevant documentstgg do not reach those
we
issues. Whatever is filed and however the filing is accomplished,
it must precede the summary judgment hearing. See OINeillv. State
(1987), 225 Mont. 364, 366, 732 P.2d 1330, 1331.
The record indicates that the appellant failed to raise the
bisexual-harassment theory until after the District Court issued
its order granting summary judgment. The complaint contains no
charge that Chance harassed her son. The appellant's reply to the
respondent's motion for summary judgment includes one sentence
vaguely alluding to bisexual harassment, but makes no use of the
allegation. The bisexual harassment theory appears for the first
time in the appellant's proposed findings of fact and conclusions
of law. The record shows that that document was received on
October 20, 1989, two days after the District Court signed the
summary judgment order. Because the issue was not presented, the
District Court made no error in failing to consider the issue of
bisexual harassment.
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Separate Cause of Action
Finally, Harrison argues that her claim is not limited to the
Human Rights Commission because, in addition to sexual harassment,
Chance committed a variety of torts against her which provide
grounds for her cause of action in district court. Again, her
authority is Drinkwalter which allowed the plaintiff to bring tort
action based on sexual harassment rather than filing a complaint
with the Human Rights Commission. Specifically, Harrison alleges
that Chance's conduct amounted to tortious battery, intentional
infliction of emotional distress, the tort of outrage, wrongful
discharge, and breach of the implied covenant of good faith and
fair dealing.
It may be that the alleged acts provide grounds for these and
other tort claims. However, the gravamen of the appellant's claim
is sexual harassment. Her claim of battery is based on an
allegation that Chance forcefully kissed her against her will.
The intentional infliction of emotional distress and outrage arise
from charges that Chance repeatedly confronted Harrison with
sexually explicit innuendos and offers. Likewise, the theories of
wrongful discharge and breach of the implied covenant of good faith
and fair dealing are based on Harrison's allegations that Chancels
constant sexual harassment made her working conditions so in-
tolerable that she was forced to resign.
As in this case, any claim based on sexual harassment can be
framed in terms of numerous tort theories. The legislature
10
expressed its intent that the Commission provide the exclusive
remedy for illegal discrimination when it enacted subsection (7)
of 5 49-2-509, MCA. To allow such re-characterization of what is
at heart a sexual discrimination claim, would be to eviscerate the
mandate of the Human Rights Commission. The District Court did not
err in holding that the Human Rights Commission provided the
exclusive remedy for the appellant's claim.
RETROACTIVE APPLICATION
Did the District Court err in holding that the exclusive
remedy provision of 5 49-2-509 (7), MCA, applied to the appellant I s
claim even though the acts complained of pre-dated passage of the
provision?
Harrison argues that the application of the exclusive remedy
provision to her claim violates 5 1-2-109, MCA, which provides that
no law is retroactive unless expressly declared so by the legisla-
ture. The alleged acts occurred between September 1986 when she
was hired and March 17, 1987, when she resigned thereby pre-dating
enactment of 5 49-2-509(7), MCA, on April 16, 1987.
Again we disagree. The legislature provided that the 1987
amendments to the Human Rights Act, including the exclusive remedy
provision, would apply to all cases not settled before the time of
enactment.
This act applies to cases pending before the
commission for human rights on the effective
date of this act and to cases filed with the
commission for human rights on or after the
effective date of this act.
Act approved April 16, 1987, ch. 511, 5 4, 1987 Mont. Laws 1240,
1243. Harrison filed her complaint on September 28, 1987, six
months after the April 16, 1987, effective date of the statute.
Although Harrison filed in District Court, we have already
determined that she should have filed with the Human Rights
Commission. The applicability section of the 1987 amendments,
therefore, applies to her claim and brings it under the exclusive
remedy provision. If we held otherwise, any discrimination
claimant could avoid the exclusive remedy provision through the
expedient filing of a tort claim in district court, contrary to
the intent of the legislature that the Human Rights Act provide the
exclusive remedy for all unadjudicated discrimination claims.
CONSTITUTIONALITY
Did the District Court err in not holding that the application
of the Montana Human Rights Act's exclusive remedy provision and
180-day statute of limitations unconstitutionally deprived the
appellant of her rights to contract, substantive due process, and
equal protection under the Montana and United States Constitutions?
In the recent case of Romero v. J & J Tire, JMH, Inc. (Mont.
1989), 777 P.2d 292, 46 St.Rep. 1159, this Court held that the
exclusive remedy provision of the Montana Human Rights Act did not
violate either federal or Montana rights to access to the courts,
equal protection, or trial by jury. Harrison now raises several
new federal and Montana constitutional issues not covered in
Romero.
Risht to Contract
Harrison argues that application of the exclusive remedy
provision violates her right to freedom from impairment of contract
guaranteed by Article 1, Section 10 of the United States Constitu-
tion and Article 11, Section 31, of the Montana Constitution, by
retroactively effecting the terms of her employment contract with
the respondent. She relies on Carmichael v. Workersf Compensation
Court (1988), 234 Mont. 410, 415, 763 P.2d 1122, 1126, in asserting
that she was vested with a contract right to bring her claim under
the laws in effect at the time of her alleged injury. Because
Drinkwalter represented the law of Montana at that time, she has
a right to bring a tort action with a three-year statute of
limitations in district court. Harrison points out that applica-
tion of the exclusive remedy provision replaces that right to sue
in district court with a barren right to bring a claim before the
Human Rights Commission. If the Human Rights Act provides her only
remedy, it also extinguishes that remedy because its 180-day
statute of limitations has already passed. See 3 49-2-501(2)(a),
MCA .
We agree with the appellantfs analysis of the effect of the
statute of limitations, but we disagree with her contention that
13
it is unconstitutional. Unlike the workers1 compensation claimant
in Carmichael, Harrison has no vested contract right to application
of the laws in effect at the time of her injury. The rights of an
injured workers1 compensation claimant are contractual rights.
Cadwell v. Bechtel Power Corp. (1987), 225 Mont. 423, 425, 732 P.2d
1352, 1354; see also Carmichael, 234 Mont. at 413, 763 P.2d at
1124. Above, we held that Harrison's claim is essentially a
discrimination claim even though it can be couched in terms of a
tort claim. The same reasoning applies here; although Chancels
alleged acts can be termed a breach of an implied employment
contract with Harrison, the gravamen of the claim is sexual
discrimination. Because the appellant has no vested contract
right, application of the exclusive remedy provision of P 49-2-
509(7), MCA, does not violate her right to contract.
substantive Due Process
Harrison next argues that application of the exclusive remedy
provision violates her right to due process under Amendment XIV,
Section 1 of the United States Constitution and Article 11, Section
17, of the Montana Constitution, far the same reasons that it
violates her right to contract; the legislature has retroactively
extinguished her right to bring a tort action in district court.
Again, we disagree. Freedom from sexual discrimination is a
constitutional right in Montana under Article 11, Section 4, of the
Montana Constitution, but no person has a vested interest in a
14
particular remedy to a violation to that right. See Meech v.
Hillhaven West, Inc. (Mont. 1989), 776 P.2d 488, 496, 46 St.Rep.
1058, 1068. The legislature is free to impose reasonable proce-
dural requirements on the available remedies so long as those
requirements have a rational basis. See Linder v. Smith (Mont.
1981), 629 P.2d 1187, 1192, 38 St.Rep. 912, 917. We have already
held that the legislature had a rational basis for making the Human
Rights Commission the exclusive means of combating illegal
discrimination in Montana. Romero, 777 P.2d at 295, 46 St.Rep. at
1161. Like any other statute of limitations, the Human Rights
Act's 180-day limitation provides a reasonable means of preventing
stale claims and ensuring that claims are filed before essential
evidence disappears.
Eaual Protection
Harrison's final constitutional argument is that the exclusive
remedy provision violates her right to equal protection under
Amendment XIV, Section 1 of the United States Constitution and
Article 11, Section 4, of the Montana Constitution. She contends
that a male employee in the same position would fall under the
three-year statute of limitations for torts while she is subject
to the 180-day statute of limitations of the Human Rights Act. We
find little reasoning and less merit in the appellant's assertion.
Both male and female victims of sexual discrimination in employment
have the same rights and are subject to the same procedural
requirements of the Montana Human Rights Act.
RULE 11 SANCTIONS
Did the District Court err in refusing to sanction the
respondent under Rule 11, M.R.Civ.P., for including non-cornpensable
expenses in his memorandum of costs?
Following dismissal of the appellant's claim on summary
judgment, the respondent submitted a memorandum of costs including
the costs of eight depositions, a subpoena, expert witness fees,
a psychological evaluation of the appellant, and various court
fees. Harrison objected to the memorandum and asked the District
Court to sanction Chance under Rule 11, M.R.Civ.P., contending that
none of the listed depositions, expert witness, or psychological
evaluation were necessary to the summary judgment proceedings. The
court refused without comment and signed a memorandum including
only court fees and Harrison's deposition. Harrison now appeals
that decision arguing that Chance's memorandum of costs was a
frivolous and abusive litigation practice submitted as a ploy to
force Harrison into settlement.
This Court recently set out the appropriate standard in
reviewing a district court's decision on Rule 11 sanctions.
This Court will give the district courts wide
latitude to determine whether the factual
circumstances of a particular case amount to
frivolous or abusive litigation tactics ...
. A district court's findings of fact will be
16
overturned if clearly erroneous. The court's
legal conclusion that the facts constitute a
violation of Rule 11 will be reversed if the
determination constitutes an abuse of discre-
tion. We will review the case de novo only if
the violation is based on the legal sufficien-
cy of a plea or motion.
DtAgostinov. Swanson (Mont. 1990), 784 P.2d 919, 926, 47 St.Rep.
10, 17. The District Court "tasted the flavor of the litigation,"
heard the partiest arguments, and found no need for sanctions. The
appellant has raised no new argument which would indicate that the
District Court abused its discretion in that decision.
THE AWARD OF COSTS
Did the District Court err in awarding the respondent the cost
of taking the appellant's deposition?
The memorandum of costs approved by the District Court came
to $425 including $80 for court fees and $345 for the cost of
taking appellant Harrison's deposition. Harrison now argues that
the District Court erred in awarding Chance the cost of her
deposition because the deposition was not necessary to its summary
judgment decision. This time, we agree.
The law controlling this issue is well settled. This case is
not an action requiring an award of costs as a matter of course.
See 5 25-10-101, MCA. The decision to award costs fell within the
discretion of the District Court. See 5 25-10-103, MCA. The court
is empowered to award costs to the prevailing party on summary
judgment and to include the cost of depositions as long as they are
17
reasonable in amount and necessary to the summary judgment. See
Frigon v. Morrison-Maierle, Inc. (1988), 233 Mont. 113, 125, 760
P.2d 57, 64-65.
We do not believe that Harrison's deposition was necessary to
this order. In the summary judgment proceedings, the respondent
cited the deposition only to show that Harrison was aware that she
could have filed a complaint with the Human Rights Commission and
had not done so. Harrison's knowledge of the administrative proce-
dures does not appear to be a fact necessary to the decision to
dismiss. The primary issue was whether she was required to file
with the Commission.
Even if notice of the Commission~sprocedures was a material
fact, Harrison's deposition provided only redundant authority.
Chance also cited the facts contained in the appellant's response
to interrogatories to support his contention. Those facts are
basically the same as those contained in the deposition. Chance
received those answers to interrogatories in April, 1988--ten
months before taking Harrison's deposition on February 10, 1989.
The respondent had no need to rely on the deposition to secure a
summary judgment. The cost of Harrison's deposition is, therefore,
disallowed.
EQUITABLE TOLLING
In Erickson v. Croft (1988), 233 Mont. 146, 760 P.2d 706, this
Court looked favorably upon the doctrine of equitable tolling.
18
Under that doctrine, the statute of limitations may be tolled when
a party reasonably and in good faith pursues one of several
possible legal remedies and the claimant meets three criteria:
(1) timely notice to the defendant within the
applicable statute of limitations in filing
the first claim; (2) lack of prejudice to
defendant in gathering evidence to defend
against the second claim; and (3) good faith
and reasonable conduct by the plaintiff in
filing the second claim.
Erickson, 233 Mont. at 150-51, 760 P.2d at 708. In Erickson, we
found no need to adopt equitable tolling because the appellant
failed to meet the first criteria; the first claim did not give
adequate notice of the second claim. Erickson, 233 Mont. at 152,
Under the facts of this case, the doctrine of equitable
tolling may be appropriate if Harrison refiles her claim with the
Human Rights Commission. Unlike Erickson, here the District Court
claim may give Chance adequate notice of a claim before the
Commission. Furthermore, in filing with the District Court, the
appellant appears to have relied reasonably and in good faith upon
this Court's holding in Drinkwalter. As a case of first impression
holding that the legislature overruled Drinkwalter, this case
should not prevent the appellant from having her substantive claims
heard by the Human Rights p om mission.
The cost of Harrison's deposition is disallowed. The summary
judgment is affirmed.