No. 02-776
IN THE SUPREME COURT OF THE STATE OF MONTANA
2003 MT 240
MARGERY LaFOURNAISE,
Plaintiff and Appellant,
v.
MONTANA DEVELOPMENTAL CENTER,
an entity of the DEPARTMENT OF PUBLIC
HEALTH AND HUMAN SERVICES,
Defendant and Appellant.
APPEAL FROM: District Court of the Fifth Judicial District,
In and for the County of Jefferson, Cause No. DV-2001-9922,
Honorable Loren Tucker, Judge Presiding
COUNSEL OF RECORD:
For Appellant:
John C. Doubek, Small, Hatch, Doubek & Pyfer, Helena, Montana
For Respondent:
Steven C. Haddon, Special Assistant Attorney General, Risk Management
and Tort Defense Division, Helena, Montana
Submitted on Briefs: May 29, 2003
Decided: September 11, 2003
Filed:
__________________________________________
Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.
¶1 Margery LaFournaise (LaFournaise) brought the underlying wrongful discharge action
against her former employer, the Montana Developmental Center (MDC). MDC moved for
summary judgment and the Fifth Judicial District Court, Jefferson County, granted MDC's
motion and entered judgment. LaFournaise appeals and we affirm.
¶2 We address the following issues on appeal:
¶3 1. Did the District Court err in granting MDC summary judgment in light of
LaFournaise's claim that the collective bargaining agreement is a contract of adhesion?
¶4 2. Did the District Court err in determining LaFournaise failed to establish that the
Wrongful Discharge From Employment Act violated her constitutional rights to full legal
redress and a jury trial?
¶5 In November of 2000, MDC terminated LaFournaise's employment as a licensed
practical nurse. LaFournaise filed a sex discrimination complaint with the Human Rights
Bureau of the Montana Department of Labor and Industry and also filed a grievance through
her union, the American Federation of State, County and Municipal Employees Local 971.
The Human Rights Bureau later dismissed LaFournaise's complaint on the basis she had not
offered sufficient evidence to give rise to an inference that unlawful discrimination had
occurred. According to LaFournaise, the grievance process proceeded through several steps,
after which her union representative told her the union would not proceed further and, if she
wanted to continue to pursue the matter, she should file a complaint in court.
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¶6 In November of 2001, LaFournaise filed a complaint in the District Court alleging that
she was terminated from her employment at MDC based upon her sex and in retaliation for
whistle-blowing. MDC moved for summary judgment on the basis that LaFournaise was a
union member covered by a written collective bargaining agreement (CBA). It pointed out
that, in Montana, the Wrongful Discharge From Employment Act (WDEA)--codified at §§
39-2-901 through -915, MCA--generally provides the exclusive remedy for wrongful
discharge, and argued that § 39-2-912(2), MCA, precludes an employee covered by a CBA
from seeking relief under the WDEA. In response, LaFournaise asserted that genuine issues
of material fact existed regarding whether her discharge was wrongful. She filed an affidavit
stating she was told by the union that she could sue MDC, but must do it on her own. She
also waived her claim of sex discrimination.
¶7 At oral argument in the District Court on MDC's motion for summary judgment,
LaFournaise advanced a new argument. She argued that, if she is precluded from bringing
an action for wrongful discharge solely because her employment was subject to a CBA, then
the WDEA unconstitutionally deprives her of her right of access to the courts. The District
Court ordered additional briefing on that issue, and LaFournaise argued in her supplemental
brief that arbitration had become unavailable and impractical. She filed an affidavit stating
she had never been given a copy of any agreement between the union and the state providing
that her right to go forward with arbitration or to sue her employer is dependent upon the will
of the union.
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¶8 After reviewing the briefs, the court granted MDC's motion for summary judgment,
stating LaFournaise had failed to adequately support her arguments and had not refuted the
cases which MDC cited. The court further determined that no evidence supported LaFour-
naise's arguments that the CBA--which is not of record--requires arbitration but that
arbitration is unavailable or impractical. LaFournaise appeals.
Standard of Review
¶9 We review a district court's grant of summary judgment de novo, using the same Rule
56(c), M.R.Civ.P., criteria used by that court. Bruner v. Yellowstone County (1995), 272
Mont. 261, 264, 900 P.2d 901, 903. Summary judgment is proper when there are no genuine
issues of material fact and the moving party is entitled to judgment as a matter of law. Rule
56(c), M.R.Civ.P. In the present case, neither party contends on appeal that material factual
issues exist.
Issue 1
¶10 Did the District Court err in granting MDC summary judgment in light of LaFour-
naise's claim that the collective bargaining agreement is a contract of adhesion?
¶11 In rejecting this claim, the District Court stated there was no evidence that the CBA
is in any way a contract of adhesion. We agree.
¶12 A contract of adhesion is a contract with terms dictated by one contracting party to
another party who has no voice in the contract's formulation. Contracts of adhesion are
unenforceable if not within the reasonable expectations of the weaker party or if they are
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unduly oppressive, unconscionable, or against public policy. Kloss v. Edward D. Jones &
Co., 2002 MT 129, ¶ 24, 310 Mont. 123, ¶ 24, 54 P.3d 1, ¶ 24 (citations omitted).
¶13 LaFournaise compares this case to Iwen v. U.S. West Direct, 1999 MT 63, 293 Mont.
512, 977 P.2d 989. In Iwen, we held that a standardized form agreement which U.S. West
used to market its yellow page advertising was a contract of adhesion because Iwen was
unable to negotiate the terms of the agreement and his only choice was to accept or reject it.
Iwen, ¶ 29. We further held that the contract provision requiring arbitration was unconscio-
nable and oppressive because the rights of the contracting parties were one-sided and
unreasonably favorable to the drafter. Iwen, ¶ 32.
¶14 LaFournaise also contends this case is analogous to Kloss. In Kloss, a 95-year-old
brokerage firm customer sued the firm and her broker, alleging violations of state securities
statutes, negligence, unfair and deceptive business practices, breach of fiduciary obligations
and fraud. The firm and broker defended on the basis that the customer had signed two
agreements to submit any disputes to arbitration. The district court agreed with the
defendants and issued an order compelling arbitration. The customer appealed. Kloss, ¶ 1.
This Court held the arbitration provision, on a standardized form prepared by the firm and
presented to the customer with no opportunity for negotiation, rendered the agreements
contracts of adhesion which were unenforceable because the arbitration clauses were not
within the customer's reasonable expectations. Kloss, ¶¶ 27-28.
¶15 LaFournaise posits that when, as in this case, a union member employee is powerless
to move the grievance process forward to arbitration, the provision in the contract mandating
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arbitration defies public policy because it cuts off the employee without a remedy. She
argues that here, as in Iwen and Kloss, the contract is one of adhesion and is invalid.
¶16 There are several problems with LaFournaise's arguments. First, because the CBA
is not of record, we cannot even ascertain what provisions it contains.
¶17 Moreover, assuming arguendo that LaFournaise correctly represents the terms of the
contract, her reliance on Iwen and Kloss totally ignores the fact that the contract involved in
this case is a collective bargaining agreement between her union and MDC. In Montana,
public employees have the right to organize and join a labor organization, and to bargain
collectively through representatives of their own choosing on matters relating to wages and
other conditions of employment. See § 39-31-201, MCA. Here, as noted above, LaFour-
naise is a member of the American Federation of State, County and Municipal Employees
Local 971, and the union has a CBA--covering its members--with MDC. Such collective
bargaining agreements arise only after the public employer and the exclusive representative
of the union have met their legal duties to bargain collectively and in good faith. See § 39-
31-305, MCA. Thus, under basic Montana labor law applicable to public employees, and
in the total absence of evidence from LaFournaise to the contrary, no standardized form of
agreement exists in this case and neither contracting party dictated the terms of the CBA to
the other. Consequently, the requirements for a contract of adhesion set forth in Kloss and
Iwen have not been met.
¶18 In addition, a court's determination of whether a contract is unconscionable or not
within a contracting party's reasonable expectations is made only after an initial determina-
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tion that the contract is a contract of adhesion. See Iwen, ¶¶ 28, 30; Kloss, ¶ 24. Because
LaFournaise has not presented evidence that the contract between her union and MDC is a
contract of adhesion, we need not address whether the contract was unconscionable or within
the contracting parties' reasonable expectations.
¶19 After briefing had been completed for this appeal and we had classified the case for
submission on briefs, LaFournaise requested--and we granted--leave to submit additional
authority. The new authority she submitted, Circuit City Stores, Inc. v. Mantor (9th Cir.
2003), 335 F.3d 1101, does not support LaFournaise's position.
¶20 In Circuit City, a former electronics store employee appealed from a federal district
court's order compelling arbitration of disputes concerning the employee's termination. The
Ninth Circuit Court of Appeals ruled that, because there was no meaningful opt-out
opportunity for the employee when he signed his employment contract including an
arbitration provision, the arbitration agreement was procedurally unconscionable. Circuit
City, 335 F.3d at 1107. Unlike the present case, no bargaining unit or collective bargaining
agreement was involved; the employment contract was between the individual employee and
the employer. See Circuit City, 335 F.3d at 1104. Therefore, the discussion of--and
rationale concerning--the lack of an opt-out opportunity is inapplicable to the facts of
LaFournaise's case.
¶21 LaFournaise also cites Cape-France Enterprises v. Estate of Peed, 2001 MT 139, 305
Mont. 513, 29 P.3d 1011, as authority that a party may be relieved of the provisions of a
contract when adhering to the contract is impracticable. In that case, a buyer of real estate
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for subdividing rescinded the sales contract on the property after subdivision became
impractical because it was suspected the groundwater under the property was contaminated.
This Court affirmed a district court ruling that the contract could be rescinded on the basis
of impracticability. Cape-France, ¶¶ 12, 38. LaFournaise argues the same reasoning applies
here: her obligation to go forward with arbitration was impracticable and any obligation
should be discharged because of that impracticability.
¶22 Cape-France is not a contract of adhesion case and, for that reason, it does not
support LaFournaise's contract of adhesion argument. Further, the contract declared
impracticable in Cape-France was not a collective bargaining agreement; it was a contract
for sale of real property.
¶23 We conclude the District Court did not err in granting MDC summary judgment in
spite of LaFournaise's claim that the CBA is a contract of adhesion.
Issue 2
¶24 Did the District Court err in determining LaFournaise failed to establish that the
WDEA violated her constitutional rights to full legal redress and a jury trial?
¶25 Section 39-2-912(2), MCA, provides that the WDEA does not apply to the discharge
of an employee covered by a collective bargaining agreement. LaFournaise argues that, by
precluding her from pursuing an action for wrongful discharge, this statute deprives her of
her right to access to the courts under Article II, Section 16, of the Montana Constitution and
her right to trial by jury under Article II, Section 26, of the Montana Constitution. She cites
the special concurrence to Kloss, in which Justice Nelson opined that access to the courts is
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a fundamental right, the customer's waiver of that right was not an effective waiver and,
therefore, the brokerage contract was unenforceable, at least to the extent of the arbitration
clause. Kloss, ¶¶ 63, 76. We observe again that Kloss did not involve a collective bargaining
agreement and, in any event, the Court did not premise its holdings on Article II, Section 16.
See Kloss, ¶¶ 27-32.
¶26 Statutes are presumed to be constitutional. Romero v. J & J Tire (1989), 238 Mont.
146, 149, 777 P.2d 292, 294 (citation omitted). A person challenging the constitutionality
of a statute bears a heavy burden of proving the statute unconstitutional beyond a reasonable
doubt. Hardy v. Progressive Specialty Ins. Co., 2003 MT 85, ¶ 33, 315 Mont. 107, ¶ 33,
67 P.3d 892, ¶ 33 (citation omitted). Here, LaFournaise has produced nothing to overcome
the presumption that § 39-2-912(2), MCA, is constitutional.
¶27 LaFournaise also cites Dorwart v. Caraway, 2002 MT 240, 312 Mont. 1, 58 P.3d 128,
for the proposition that she has a fundamental right of access to the courts. She provides no
analysis whatsoever, however, regarding how Dorwart supports her constitutional challenge
to a statute which appears to be premised on the importance of statutory rights of public
employees in Montana to collectively bargain regarding their employment rights through a
union representative. See § 39-31-201, MCA.
¶28 Finally, LaFournaise's contention to the contrary notwithstanding, she is not
necessarily left without a remedy or access to the courts. An action against her union may
well be available.
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¶29 We conclude the District Court did not err in determining LaFournaise failed to
establish that the WDEA violated her constitutional rights to full legal redress and a jury
trial.
¶30 Affirmed.
/S/ KARLA M. GRAY
We concur:
/S/ JOHN WARNER
/S/ PATRICIA COTTER
/S/ JIM RICE
/S/ W. WILLIAM LEAPHART
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