NO. 94-451
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
RYAN FANDRICH and CATHY AVARD FANDRICH,
Plaintiffs and Appellants,
v.
CAPITAL FORD LINCOLN MERCURY, a Montana
corporation; MARK RENNERFELDT, an AUG 17 199f3
individual; DUGAN ANDERSON, an individual;
and DOES 1 through 5, inclusive,
Defendants and Respondents.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Thomas C. Honzel, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Dale F. Myers, Attorney at Law,
Helena, Montana
For Respondents:
R. J. "Jim" Sewell Jr., Smith Law Firm, Helena,
Montana; Karl R. Lindegren and Robert V. Schnitz,
Fisher & Phillips, Newport Beach, California
(for Capital Ford and Dugan Anderson)
John F. Sullivan, Hughes, Kellner,
Sullivan & Alke, Helena, Montana
(for Mark Rennerfeldt)
Submitted on Briefs: March 9, 1995
Decided: August 17, 1995
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
The plaintiffs, Ryan and Cathy Fandrich, filed a second
amended complaint in the District Court for the First Judicial
District in Lewis and Clark County in which they alleged that they
were wrongfully discharged from their employment, and that Cathy
had been sexually harassed and assaulted, and that her basic
personal rights had been violated. The District Court dismissed
the second amended complaint, based on its conclusion that the
Montana Human Rights Act provided the Fandrichs' exclusive remedy.
The Fandrichs appeal from the judgment entered pursuant to the
order dismissing their complaint. We affirm the District Court.
The issues raised on appeal are:
1. Did the District Court err when it dismissed Cathy
Fandrich's claims based on the exclusive remedy provision of the
Montana Human Rights Act?
2. Did the District Court err when it dismissed Ryan
Fandrich's claim for wrongful discharge based on its conclusion
that it was barred by the exclusive remedy provision of the Montana
Human Rights Act?
FACTUAL BACKGROUND
Cathy Fandrich worked for defendant Capital Ford Lincoln
Mercury (Capital) as a warranty clerk and cashier until March 16,
1993, when she resigned. Ryan Fandrich worked for Capital as a
body shop lineman and body shop manager until July 1, 1993, when he
resigned.
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Mark Rennerfeldt was, during the time complained of, employed
by Capital as its service manager, and in that capacity supervised
the work of both Cathy and Ryan. Dugan Anderson was a principal
owner and stockholder of Capital who supervised Rennerfeldt, as
well as the Fandrichs.
Cathy alleged that she was forced to quit working at Capital
because Rennerfeldt sexually harassed her and Capital failed to do
anything about it. Ryan alleged that he was ultimately forced to
quit working for Capital because he was demoted for objecting to
Rennerfeldt's harassment of Cathy.
Neither Cathy nor Ryan filed a timely claim with the Montana
Human Rights Commission. On July 20, 1993, the Fandrichs filed
their original complaint in the District Court. On July 21, 1993,
they filed their amended complaint. On November 22, 1993, the
District Court questioned whether it had jurisdiction to consider
the amended complaint, or whether the Montana Human Rights Act
found at 55 49-l-101 through 49-4-511, MCA, was the Fandrichs'
exclusive remedy pursuant to 5 49-2-509(7), MCA. In response to
those concerns, the Fandrichs filed a second amended complaint on
May 16, 1994.
The second amended complaint contained four counts. In
Count 1, Ryan alleged that he was wrongfully discharged from
employment by Capital because he had reported Rennerfeldt's alleged
behavior to Anderson. He alleged that instead of correcting the
problem, Anderson and Rennerfeldt complained about his work,
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decreased his duties, and reduced his hours to the extent that he
could not afford to work at Capital. In count 2, Cathy alleged
that Rennerfeldt's conduct violated her personal rights. 1n
Count 3, Cathy alleged that Rennerfeldt sexually harassed her. In
count 4, Cathy alleged that Rennerfeldt assaulted her.
As a result of the alleged conduct, Ryan and Cathy claimed
they were forced to quit working at Capital. On July 15, 1994, the
District Court dismissed the Fandrichs' claims based on its
conclusion that the Montana Human Rights Act provided their
exclusive remedy.
ISSUE 1
Did the District Court err when it dismissed Cathy Fandrich's
claims based on the exclusive remedy provision of the Montana Human
Rights Act?
The Fandrichs' claims were dismissed pursuant to Rule 12(b),
M.R.Civ.P., for failure to state a claim for which relief can be
granted. A claim should only be dismissed on that basis when it
appears, based on the pleadings, that the plaintiff cannot prove
any set of facts in support of his or her claim which would entitle
the plaintiff to relief. Boreen V. Christensen (Mont. 1994), 884 P.2d
761, 762, 51 St. Rep. 1014, 1015 (citing W&on V. Taylor (19811, 194
Mont. 123, 634 P.2d 1180). The complaint should be construed in
the light most favorable to the plaintiff and all factual
allegations in a complaint are assumed to be true. Boreen, 884 P.2d
at 762. The District Court's determination that the Fandrichs'
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second amended complaint failed to state a claim is a legal
question which we review to determine whether the court ' s
interpretation of the law was correct. In re Marriage of Barnard ( 1 P P 4),
264 Mont. 103, 106, 870 P.Zd 91, 93 (citing In re Marriage of Burris
(1993), 258 Mont. 265, 269, 852 P.2d 616, 619).
The District Court concluded that, because Cathy's
allegations, if true, constituted sexual harassment at her
workplace, the Montana Human Rights Act provided her exclusive
remedy. See § 49-2-509(7), MCA; Harrisonv. Chance (1990), 244 Mont
215, 221, 797 P.2d 200, 204.
We have previously held that sexual harassment is the
equivalent of sexual discrimination which is prohibited by the
Montana Human Rights Act. Harrison, 797 P.2d at 204. Section
49-2-509(7), MCA, indicates that the Montana Human Rights Act
provides the exclusive remedy for sexual discrimination in the
workplace. That provision states:
The provisions of this chapter establish the
exclusive remedy for acts constituting an alleged
violation of this chapter, including acts that may
otherwise also constitute a violation of the
discrimination provisions of Article II, section 4, of
the Montana constitution or 49-l-102. No other claim or
request for relief based upon such acts m a y b e
entertained by a district court other than by the
procedures specified in this chapter.
In this case, Cathy pled sexual harassment, violation of her
personal rights, and assault based on Rennerfeldt's alleged
conduct. The plaintiff in Harrison also pled a variety of torts
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including tortious battery, intentional infliction of emotional
distress, outrage, wrongful discharge, and breach of the implied
covenant of good faith and fair dealing. 1n Harrison, we concluded
that the "gravamen of the appellant's claim [was1 sexual
harassment" because each of her claims arose from allegations of
forceful kissing, sexually explicit innuendos and offers, and
sexual harassment committed by her employer that made working
conditions intolerable. Harrison, 797 P.2d at 205. We recognized
that a claim based on sexual harassment may be framed in terms of
numerous tort theories. However, this Court stated that the
Legislature intended that the Human Rights Act be the exclusive
remedy for such conduct when it enacted § 49-2-509(7), MCA.
Harrison, 797 P.2d at 205.
Harrison did not involve a claim based on sexual harassment
committed by one employee against another. Therefore, Cathy
contends that it is inapplicable and that the scope of
§ 4 9 - 2 - 5 0 9 (71, MCA, is limited to direct acts by the employer.
However, in 1993, the definition of "employer," as used in the
Act, was amended to provide that:
As used in this chapter, unless the context requires
otherwise, the following definitions apply:
(8) "Emulover" means an emnlover of one or more
persons or an aaent of the emnlover but does not include
a fraternal, charitable, or religious association or
corporation if the association or corporation is not
organized either for private profit or to provide
accommodations or services that are available on a
nonmembership basis.
Section 49-2-101, MCA (1993) (emphasis added). For purposes of
this appeal, the parties have relied on the 1993 version of
§ 49-2-101(8), MCA. Therefore, without further analysis, we will
assume its applicability.
When we construe this language, we must first look to the
plain language of the statute. See Boegli v. Glacier Mountain Cheese Co.
(1989), 238 Mont. 426, 429, 777 P.2d 1303, 1305. The Legislature
added the word "agent" without specifying which employees are to be
considered agents. As a result of the Legislature's failure to
specify the meaning of agent, we adopt the ordinary meaning of the
word "agent."
A servant or employee is an agent who is employed by a master
or employer whose physical conduct is subject to control or right
to control by the master or employer. State ex rel. Eccleston v. Third Judicial
Dist. Court (1989), 240 Mont. 44, 51-52, 783 P.2d 363, 368 (citing
Restatement (Second) of Agency § 2). Thus, the ordinary meaning of
agent includes employees who are subject to an employer's control
while performing their job duties. As a result of its failure to
define agent otherwise, it appears that the Legislature intended,
for purposes of the Human Rights Act, to include an employee in the
definition of employer.
Legislative history also supports this conclusion. In 1993,
the Montana Human Rights Commission proposed House Bill 561 as an
amendment to include agent in the definition of employer. Part of
the motivation behind the bill was to allow the Commission to
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redress situations where an employee is sexually harassed by
another employee. The example provided in support of the amendment
was a case involving a woman who was sexually harassed by her
manager who was also a co-employee. The woman sought redress from
the Montana Human Rights Commission. However, because the sexual
harassment was committed by her manager and co-employee, the
Commission concluded that it was not empowered to hear her claim.
The Commission's goal was to have the ability to assign liability
to the individual responsible for the discriminatory conduct in
addition to or in place of the employer. Hearings on HB 561 Before the
House Judiciary Committee, 53rd Legislature, Regular Sess. p.4 and
Exhibit 1 (1993) (statement of Anne MacIntyre, Administrator, State
Human Rights Commission).
Based on the addition of agent to the definition of employer
in the Montana Human Rights Act, we conclude that the Montana Human
Rights Act provides Cathy's exclusive remedy for Rennerfeldt's
alleged sexual harassment.
Cathy next claims that the District Court's decision violated
Article II, Section 16, of the Montana Constitution because she was
denied her ability to seek judicial redress. However, that issue
was not raised in the District Court and we will not consider it
for the first time on appeal. We affirm the District Court's
dismissal of Cathy's claims and the judgment entered pursuant to
that order.
ISSUE 2
Did the District Court err when it dismissed Ryan Randrich's
claim for wrongful discharge based on its conclusion that it was
barred by the exclusive remedy provision of the Montana Human
Rights Act?
In Count 1 of the second amended complaint, Ryan alleged that
while he was dating Cathy he discovered that Rennerfeldt was
sexually harassing, intimidating, and assaulting her. Ryan claimed
that he complained to Anderson about the alleged conduct and
informed Anderson that Ryan and Cathy were engaged. Ryan added
that Anderson and Rennerfeldt then began to harass and intimidate
Cathy, reassigned her to a cashier's position, and ultimately
forced her to resign. Ryan alleged that he complained again, and
his employer falsely accused him of incompetent work, demoted him,
and eventually decreased his hours. He claimed that he was
constructively discharged by Capital because his employer created
and allowed a work environment which a reasonable person would find
intolerable. Ryan further alleged that the constructive discharge
was in retaliation for his threats to report Rennerfeldt's alleged
conduct to state and federal authorities. As a result, Ryan
claimed that his employer violated § 39-Z-904(2), MCA.
The District Court concluded that if Ryan's allegations were
true, Capital violated § 49-2-301, MCA, of Montana's Human Rights
Act, and that the Act's provisions were, therefore, his exclusive
remedy.
As stated previously, the Montana Human Rights Act applies to
discrimination by the employer and the employer's agents. The
Montana Human Rights Act prohibits retaliation against an employee
who opposes discrimination in the workplace. Section 49-2-301,
MCA, states:
It is an unlawful discriminatory practice for a person,
educational institution, financial institution, or
governmental entity or agency to discharge, expel,
blacklist, or otherwise discriminate against an
individual because he has opposed any practices forbidden
under this chapter or because he has filed a complaint,
testified, assisted, or participated in any manner in an
investigation or proceeding under this chapter.
Sexual harassment is the equivalent of discrimination in the
workplace. Harrison, 797 P.2d at 204. Ryan claims he was terminated
because he opposed alleged conduct which is prohibited by the Act.
Therefore, Ryan is barred from bringing his claim pursuant to the
Montana Wrongful Discharge From Employment Act because the Human
Rights Act provides his exclusive remedy. Section 49-2-509(7), MCA
(1987) . We conclude that the District Court correctly dismissed
Ryan's claim.
We affirm the judgment of the District Court.
J$stice
We concur:
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ied order was sent by United States mail, prepaid, to the
ITH
: OF THE SUPREME COURT
OF MONTANA
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