NO. 92-418
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
CRAIG S. LUECK,
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Plaintiff and Appellant, ; .~
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UNITED PARCEL SERVICE,
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Defendant and Respondent. s8
APPEAL FROM: District Court of the Seventh Judicial District,
In and for the County of Dawson,
The Honorable Dale Cox, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Michael G. Eiselein; Lynaugh, Fitzgerald, Eiselein
& Eakin, Billings, Montana
For Respondent:
Steven Lehman and Chris Mangen, Jr.; Crowley,
Haughey, Hanson, Toole & Dietrich, Billings, Montana
Submitted on Briefs: January 7, 1993
Decided: April 13, 1993
Filed:
Justice John Conway Harrison delivered the Opinion of the Court.
c his is an appeal from the Seventh ~udicial~istrict,Dawson
County, the Honorable Dale Cox presiding. Appellant Craig Lueck
(Lueck) appeals from an order granting summary judgment in favor of
respondent United Parcel Service (UPS) and dismissing his
retaliatory discharge complaint. We affirm.
UPS hired Lueck as a part time delivery driver on ~ p r i l16,
1984. He joined the Teamsters Union shortly after he was hired.
In June 1986, Lueck became a full time driver, driving a tractor-
trailer combination on a 'Iswing run" three nights and one day per
week. After driving on this schedule for approximately twenty
months, Lueck was given a new route in February 1988, from Glendive
t o Wolf P o i n t on a regular schedule. Another driver, who bad more
seniority than Lueck, bid for and got Lueckls swing run.
UPS discontinued the Glendive-Wolf Point run after only one
week, and Lueck went back to part time driving. Around May 1,
1988, the driver who had taken Lueckgs swing run took another
position with UPS and Lueck took over the swing run again. By
then, however, it had been changed.
The revised swing run followed a schedule Lueck describes as
llbizarre.lrIt began at 1:00 p.m. on Sunday, when Lueck was
scheduled to drive from Glendive to Billings, returning at
approximately 2:00 a.m. on Monday morning. On Monday evening at
7:00 he was scheduled to drive to Bismarck, returning at
approximately 8:00 on Tuesday morning. On Wednesday he was
scheduled to begin driving at 6:45 a.m., returning at approximately
2
7:0 0 that evening, and on Thursday, he was scheduled to begin
driving at 8:30 p.m., returning at 9:00 on Friday morning.
After his first week on this schedule Lueck complained about
lack of sleep. He spoke to his supervisors on three separate
occasions, indicating that he was having serious problems and was
unable to sleep. On June 9, 1988, Lueck reported to work at the
UPS Center in Glendive and put on his uniform in preparation for
leaving on the eveningusrun. At that point he "flipped out," as
he describes it, and went home without doing the run. H ~ doctor
S
prescribed anti-depressants and admitted him to Glendive community
Hospital for treatment over the weekend of June 11-12, 1988. He
was then referred to the Eastern Montana Mental Health Center for
outpatient counselling.
Don LaPlante, a counselor at the mental health center,
described Lueck's Iupresentingproblemw as a u ~ p h y s i c a l / p s y c h o l o g i c a l
adverse stress reaction to working swing shifts as a truck driver
for UPSH and recommended continuing anti-depressant medication as
well as counselling. Lueck's family physician, Dr. J.E. Harkness,
a Glendive osteopath, saw him in June 1988 and again on July 13,
1988, when he reported that although Lueck appeared to be
unlikely that he will be able to go
considerably improved, tlitts
back into such a swing shift as it was a direct causal effect of
his acute hysterical depression episodes." In fact, Lueck never
returned to work far UPS.
On July 25, 1988, Lueck filed a claim for compensation with
the Montana Division of Workers1 Compensation, stating that his
work sclledule had disrupted his sleeping and eating
"double swingv1
patterns, leading to severe physical f a t i g u e , loss of weight,
ringing in the ears, dizziness, headaches, nervousness and
insomnia. This claim was denied by UPS'S insurer on August 24,
1988, on the grounds that Lueckls condition was not compensable
under the 1987 Workersf Compensation Act. Lueck never appealed the
denial of his claim.
Lueck also filed a claim under his credit disability insurance
policy in July 1988. Dr. Harkness completed the required attending
physician's statement on July 20, 1988, describing Luecklscurrent
condition as "acute anxiety -- hysteria, stress reaction,
depressionw and adding as a I1remarkw that Lueck "cannot do that
type of shift switch work again.n
Lueck occasionally played guitar with a band on weekend nights
during the spring of 1988, until he became ill in June. In October
1988 he again began playing with a band. On October 6, 1988, he
filed a claim for disability benefits under a Teamsters Union
insurance policy, but he never received any benefits because he had
begun working in the band before the payments began, In connection
with Lueck's Teamsters Union claim, Dr. Harkness completed a
physiciangs statement indicating that October 11, 1988, was the
?'date patient able to return to work."
In November 1988, UPS learned that Lueck had started working
again in a band, that he was not receiving benefits through the
Teamsters Union, and that Dr. Harkness had approved his return to
work on October 11, 1988. Joe Kriskovich, a Billings UPS manager,
called Lueck at home on December 8, 1988, to verify this
information and to ask why he had not returned to work f o r UPS.
Lueck explained that Dr. Harkness had said that he could not return
to the swing shift schedule. Kriskovich told Lueck that UPS had
nothing in its files to document this statement. Eater on the same
day, Lueck took a copy of the statement Dr. Harkness signed as
attending physician on July 20, 1988, indicating that Lueck Itcannot
do that type of shift switch work again,Ig to his supervisor in
Glendive, for delivery to Kriskovich the next day.
In the meantime, Kriskovich wrote Lueck a letter, dated
December 8, 1988, telling him that he was no longer on authorized
leave, that he was scheduled to return to work on Sunday, December
11, 1988, and that his employment at UPS "could be terminated" if
he did not return to work on December 11. Lueck did not
communicate with UPS or return to work, and on December 12 he
received a mailgram and a telegram from the UPS division manager in
Billings, telling him that if he did not return to his regularly
scheduled shift on Monday, December 12, his name would be removed
from t h e employment records. Lueck again did not communicate w i t h
UPS or return to work, and on December 13 the division manager sent
him an official separation letter terminating his UPS employment.
Asked during his deposition why he ignored these messages from
UPS, Lueck said:
It was just inconceivable to me that they could have
received this, that says I cannot return to the shift
work and persist in calling me back to shift work without
so much as checking with my doctor or having me checked
out by a doctor to find out whether or not I am able to
go back to work.
On December 8, 1989, Lueck filed a complaint in District Court
alleging that UPS had discharged him because he had filed a
workers' compensation claim, in violation of the retaliatory
discharge provision in the Workersv Compensation Act, 5 39-71-
317(1), MCA, and that UPS had intentionally inflicted emotional
distress by refusing to alter h i s work schedule in May 1988. In
1991 Lueck amended his complaint by adding a new cause of action
under § 39-71-317 (2), MCA, alleging that UPS had failed to give him
preference for a position that became vacant within two years after
the date of his injury, as the statute requires. The District
Court granted summary judgment on the amended complaint on May 14,
1992, after oral argument on January 14, 1992.
The issue on appeal is whether the District Court erred in
granting summary judgment and dismissing Lueckls retaliatory
discharge, preference, and emotional distress claims. We will
address each of Luecktsclaims separately.
The ~etaliatoryDischarqe claim
Lueck contends that t h e ~ i s t r i c t Court should not have
dismissed his retaliatory discharge claim because the record
contains sufficient facts from which a jury could infer that he was
discharged for filing a workerst compensation claim. He relies on
Lingle v. Norge Division of Magic Chef, Inc. (1988), 486 U.S. 399,
108 S.Ct. 1877, 100 L.Ed.2d 410, for the proposition that employer
motivation is a factual question and is not appropriate for summary
judgment. In Linsle, however, the Supreme Court did not decide
whether summary judgment was appropriate in a retaliatory discharge
action. Instead, it held that the appellant's retaliatory
discharge remedy under the Illinois Workers' compensation Act was
not preempted by Section 301(a) of the Labor Management Relations
Act of 1947, 29 U.S.C. 5 185(a). The relevant holding in Linsle
fo11ows:
[I]f the resolution of a state-law claim depends upon the
meaning of a collective-bargaining agreement, the
labor-law principles
the dispute.
. . .. . .
application of state law is pre-empted and federal
must be employed to resolve
Linqle, 486 U.S. at 405-406. In the case before us as well, a
decision on the merits of Lueck's retaliatory discharge claim can
be made without reference to the collective bargaining agreement.
See Foster v. Albertsons, Inc. (Mont. 1992), 835 P.2d 720, 49
St.Rep. 638 (directed verdict based on 5 301 preemption reversed,
following Linale, because appellant's wrongful discharge claim
could be resolved without reference to the collective bargaining
agreement).
Here, however, the District Court granted summary judgment in
favor of UPS, not because Lueck's claims were preempted by 5 301
but because Lueck had failed to exhaust the remedies available to
him under the collective bargaining agreement between his union and
UPS. To support its argument that summary judgment was properly
granted for this reason, UPS relies on Brinkman v. State (1986),
224 Mont. 238, 729 P.2d 1301.
In Brinkman, we upheld the district court's grant of summary
judgment for the respondents based on the state-employee
appellant's failure to exhaust his contractual remedies under a
collective bargaining 'agreement. To the extent that Brinkman is
based on federal preemption under 5 301, our holding there was
overruled in Foster, 835 P.2d at 725. But to the extent that
Brinkman requires an employee subject to a collective bargaining
agreement to exhaust his remedies under that agreement, it is not
overruled. We hold, as we held in Brinkman, that union employees
"must attempt use of the contract grievance procedure agreed upon
by employer and union as the mode of redress," for a "contrary rule
which would permit an . . . employee to completely sidestep
available grievance procedures in favor of a lawsuit has little to
recommend it." 729 P.2d at 1305-1306. Accord, Fellows v. Sears,
Roebuck & Co. (1990), 224 Mont. 7, 795 P.2d 484.
The collective bargaining agreement in effect between UPS and
the Teamsters Union in 1988 provides in pertinent part that:
The right to process and settle grievances is wholly, to
the exclusion of any other means available, dependent
upon the provisions of this Article.
The Union and the Employer agree that there shall be no
strike, picketing, lockout, tie-up, or legal proceedings
without first using all possible means of a settlement,
as provided for in this Supplement ....
The agreement includes specific steps for a discharged employee to
follow in settling the grievance over his discharge, and ultimately
provides for binding arbitration.
Lueck attempted to meet with the Teamsters Union
representative in Billings in September 1988, but the union
representative broke their appointment. Concluding that relying on
the union was "fruitless," Lueck did not attempt to contact the
8
union or enlist its support after he was discharged in December
1988. Clearly, he did not attempt to use the grievance procedure
in the collective bargaining agreement before he resorted to legal
action in 1989.
Even if Lueck had gone through the prescribed grievance
procedure, however, his retaliatory discharge claim would fail for
lack of evidence. To prove retaliatory discharge under 5 39-71-
317, MCA, Lueck would have to show (1) that he was discharged and
(2) that UPS'S motive in discharging him was to retaliate for his
filing a claim under the Workers* Compensation Act. UPS amply
documented its efforts to persuade Lueck to return to work, which
were justified by the information it had at the time. From UPS'S
point of view, Lueck simply abandoned his job without providing a
coherent explanation and without filing a grievance after he was
discharged.
Summary judgment is appropriately granted where no genuine
issue as to any material fact exists and the moving party is
entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P.
The party moving for summary judgment has the initial burden of
demonstrating that "there is no genuine issue as to any fact deemed
material in light of the substantive principles that entitle the
movant to judgment as a matter of law." Fleming v. Fleming Farms,
Inc. (1986), 221 Mont. 237, 241, 717 P.2d 1103, 1105-1106. Once
the movant has met this burden, the party opposing the motion must
show "by present facts of a substantial nature that a material fact
issue does exist. Mere conclusory or speculative statements are
insufficient to raise a genuine issue of material fact.I1 Mayer
Bros. v. Daniel ~ i c h a r dJewelers, Inc. (1986), 223 Mont. 397, 399,
726 P.2d 815, 817 (citations omitted) ; see also First Security Bank
of Bozeman v. Jones (1990), 243 Mont. 301, 303, 794 P.2d 679, 681,
and Kenyon v. Stillwater County (Mont. l992), 835 P.2d 742, 744, 49
St.Rep. 673, 674.
Lueck has provided no facts to show or even suggest that UPS
fired him in December for filing a workers1 compensation claim in
July. Lueck must provide facts that support a reasonable inference
that UPS1s motive was retaliatory, as mere assertions of a
retaliatory motive are not enough to defeat a motion for summary
judgment. See Kenvon, 835 P.2d at 745; Foster v. Arcata
Associates, Inc. (9th Cir. 1985), 772 F.2d 1453, 1459.
Lueck implies that because UPS knew of Dr. Harkness' statement
on Lueck's July 1988 credit disability claim form, it could have
had no reason other than retaliation for firing him. He does not
explain why UPS should have given that statement greater weight
than Dr. Harkness' later statement on Lueck's October 1988
application for union benefits, which indicateathat Lueckwas able
to work, or why UPS'S failure to give the earlier statement greater
weight is evidence that he was fired in retaliation for filing a
workers1 compensation claim.
We hold that the District Court concluded correctly that Lueck
did not raise a genuine issue of material fact regarding UPS1s
motive for terminating his employment.
The Preference Claim
Section 39-71-317(2), MCA, provides that
When an injured worker is capable of returning to work
within 2 years from the date of injury and has received
a medical release to return to work, the worker must be
given a preference over other applicants for a comparable
position that becomes vacant if the position is
consistent with the worker's physical condition and
vocational abilities.
In his amended complaint, Lueck alleged that when a vacancy
occurred in Glendive in March 1989, UPS was required by this
statute to prefer him for it. UPS, however, did not notify Lueck
that the position was available.
The District Court dismissed this claim on the grounds that
(1) Lueck was not an injured worker under the definition in the
Workers1 Compensation Act, and (2) if he had been injured, he would
have had to apply for the preference within two years after the
injury. Lueck made no such application.
Under 5 39-71-119, MCA, an "injury" consists of phvsical harm
to the body and is caused by an accident, which is defined as an
I1unexpectedtraumatic incident or unusual strain" that is caused by
a specific event on a single day or during a single work shift. It
does not include a physical or mental condition arising from
emotional or mental stress. The District Court correctly decided
that this statutory definition does not include Lueck's "adverse
stress reaction" of June 9, 1988.
Lueck argues that his condition actually was an lloccupational
disease," defined in 9 39-72-102, MCA (1987)' as "harm, damage or
death as set forth in 39-71-119(1) arising out of or contracted in
the course and scope of employment and caused by events occurring
on more than a single day or work shift." Although the statute
goes on to exclude conditions arising from emotional or mental
stress, Lueck argues that his condition was caused by Itphysical
disruption of his eating and sleeping scheduleu and therefore is
not excluded. The District Court concluded correctly, however,
that the term "injuryv1 the preference statute, 5 39-71-317(2) ,
in
MCA, does not include occupational disease.
Lueck contends that the District Court's reading of the
preference statute is too narrow, and that it erred in ignoring the
declaration of public policy in 5 39-71-105(3), MCA (1987), which
states that "an objective of the workerst compensation system is to
return a worker to work as soon as possible after the worker has
suffered a work-related injury or disease." UPS argues that this
objective does not apply to an occupational disease, for there is
no good reason to return a worker to a job that caused his disease.
The District Court agreed, concluding correctlythatthe preference
statute applies only to work-related injuries.
We review a district court's interpretation of the law only
for correctness. Steer, Inc. v. Depvtof Revenue (1990), 245 Mont.
170, 803 P.2d 601. Here, we conclude that the District Court
correctly interpreted the preference statute as excluding Lueck's
condition, and that UPS therefore was entitled to summary judgment
on Lueck's preference claim, as a matter of law.
The Emotional Distress Claim
Lueck claims that as a result of UPS'S refusal to alter his
work schedule and as a result of his termination, he suffered
severe emotional distress. His emotional distress was severe
enough that he sought counselling and was on medication for several
months.
This Court has adopted the requirements for recovering damages
for infliction of emotional distress that are set out in
Restatement (Second) of Torts 5 46 comment j (1965). First Bank
(N.A.)-Billings v. Clark (1989), 236 Mont. 195, 206, 771 P.2d 84,
91. The victim must show that the defendant's tortious conduct
resulted either in physical or mental injury or in "a substantial
invasion of a legally protected interest," and that it "caused a
significant impact,t*
including emotional distress "so severe that
no reasonable person could be expected to endure it." Clark, 771
P.2d at 91. Accord, Doohan v. Bigfork School Dist. No. 38 (1991),
247 Mont. 125, 805 P.2d 1354.
The District Court concluded that UPS'S actions did not
approach the level of outrageousness needed to establish a prima
facie case of intentional infliction of emotional distress. See
Frigon v. Morrison-Maierle, Inc. (1988), 233 Mont. 113, 123, 760
P.2d 57, 64 (the defendant's conduct must be "so outrageous ...
as to go beyond all possible bounds of decencyt1).
In the past we have characterized emotional distress as an
element of damages rather than a distinct cause of action; see
Friqon, 760 P.2d at 63; Shiplet v. First Security Bank (1988), 234
Mont. 166, 171, 762 P.2d 242, 247. Even if considered only for the
purpose of establishing damages, however, Lueckts deposition
testimony demonstrates~theabsence of any genuine issue of material
fact concerning the severity of his alleged emotional distress.
UPS was entitled to summary judgment on this claim.
AFFIRMED.
We concur: 1/
Justices
Justice William E. Hunt, Sr., dissenting.
I dissent.
April 13, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
Michael G. Eiselein
LYNAUGH, FITZGERALD, EISELEIN & EAKIN
P.O. Box 1729
Billings, MT 59103-1729
STEVEN LEHMAN
CHRIS MANGEN, JR.
Crowley, Haughey, Hanson, Toole & Dietrich
P.O. Box 2529
Billings, MT 59103-2529
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA