NO. 94-109
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
TINA HASH,
Plaintiff and Appellant,
-vs-
U.S. WEST COMMUNICATIONS SERVICES,
a corporation and RUSS CRAVENS
and his marital community,
Defendants and Respondents.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Jeffrey Sherlock, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Dustin Deissner; Van Camp & Bennion, Spokane,
Washington
Russell K. Jones, Attorney at Law, Spokane,
Washington
For Respondent:
Ronald F. Waterman; Gough, Shanahan, Johnson
& Waterman, Helena, Montana
Submitted on Briefs: August 4, 1994
Decided: December 19, 1994
Filed:
Justice John Conway Harrison delivered the Opinion of the Court.
Tina Hash (Hash) appeals the order of the First Judicial
District, Lewis and Clark County, dismissing her discrimination
complaint based on the expiration of the statute of limitations
period. We affirm.
Three issues are presented.
1. Did the District Court err in failing to hold as a matter
of law, that the date of notification of elimination constituted
the date of discovery of the discriminatory acts, thus beginning
the relevant time periods?
2. Did the District Court err by holding that the timely
filing of a Human Rights Commission complaint is a prerequisite to
filing suit on a discrimination complaint where the Human Rights
Commission has issued a right-to-sue letter?
3. Did the District Court err by failing to find a genuine
issue of material fact as to whether the time period for filing a
claim was equitably tolled?
After working for U.S. West for almost thirteen years, Hash
was informed on June 19, 1991, that her job position was being
combined with another position and, therefore, that her job would
be eliminated. Hash applied for another U.S. West position but was
not offered any other job. Her position was eliminated on January
31, 1992, as planned. Hash contends that in June 1991 she was told
her position would be eliminated, not that she would be fired, and
that she applied for another job before the elimination of her
position in January 1992. She contends she did not know she would
2
be deprived of a job until she was not offered another position
after January 1992.
Pursuant to a U.S. West company policy for handling intra-
company complaints, Hash filed a discrimination complaint with U.S.
West personnel and the U.S. West equal employment office (EEO) in
December 1991. She was referred to another U.S. West employee in
Minneapolis, Minnesota, and then to U.S. West's regional equal
employment officer. In May 1992 the regional officer advised Hash
that he found no discrimination. On June 5, 1992, Hash filed
allegations against U.S. West and her supervisor Russ Cravens (U.S.
West) with the Human Rights Commission (HRC). On July 24, 1992,
the HRC wrote to Hash that it had no authority in the matter
because the allowable time to file had expired. The HRC also
offered to issue a right-to-sue letter, allowing Hash to pursue her
claim in court. The HRC issued a right-to-sue letter on December
9, 1992. Hash filed the current action on March 3, 1993.
The District Court granted U.S. West's motion for summary
judgment, concluding that the HRC provides the exclusive remedy to
parties alleging unlawful discriminatory practices and the filing
period for Hash's complaint expired prior to her filing.
Summary judgment is properly granted only when there is no
genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P.;
Toombs v. Getter Trucking, Inc. (1993), 256 Mont. 282, 284, 846
P.2d 265, 266. To satisfy its burden of proving that there is a
complete absence of material fact, "the movant must make a clear
3
showing as to what the truth is so as to exclude any real doubt as
to the existence of any genuine issue of material fact." Toombs,
846 P.2d at 266. We apply the same standard of review as that used
by the district court. Toombs, 846 P.2d at 266.
Did the District Court err in failing to hold, as a matter of
law, that the date of notification of elimination constituted the
date of discovery of the discriminatory acts, thus beginning the
relevant time periods?
A cause of action accrues under the Human Rights Act (Act)
when "the alleged unlawful discriminatory practice occurred or was
discovered." Section 49-2-501(2) (a), MCA. On June 19, 1991, U.S.
West notified Hash that on January 31, 1992 her position would be
eliminated. Hash argues that the statutory period started at the
termination date because she hoped and believed, up to the time of
termination, that she would be given another U.S. West position.
We disagree.
If there was a discriminatory act in this case, it occurred
when U.S. West notified Hash of its decision to eliminate her
position. It was at that time that Hash discovered the alleged
discriminatory practice. Hash's hopes and beliefs cannot
contradict the fact that she discovered the alleged discriminatory
act(s) on June 19, 1991. In this case, Hash did not support her
position that her cause of action did not accrue on June 19, 1991.
We hold that the District Court did not err in concluding that the
alleged discriminatory practice was discovered and accrued on June
4
19, 1991 when Hash was advised that her position would be
eliminated.
II
Did the District Court err by holding that the timely filing
of a Human Rights Commission complaint is a prerequisite to filing
suit on a discrimination complaint, where the HRC has issued a
right-to-sue letter?
The Act is administered by the HRC. Three statutory
provisions lead us to conclude that Hash's complaint is barred.
First, HRC enforcement requires that discrimination-related
complaints, such as Hash's, be filed with the HRC within 180 days
after the alleged unlawfully discriminatory action occurred or was
discovered. Section 49-2-501(2) (a), MCA. Alternatively, if the
complainant initiates efforts to resolve the dispute "by filing a
grievance in accordance with any grievance procedure established by
a collective bargaining agreement, contract, or written rule or
policy, the complaint may be filed within 180 days" of the
conclusion of the grievance procedure if the procedure concludes
within 120 days after the alleged discriminatory practice, or
within 300 days if the grievance procedure does not conclude within
120 days. Section 49-2-501(2) (b), MCA. Second, § 49-2-501(2) cc),
MCA, provides that complaints not filed within the specified period
"may not be considered by the [Human Rights Clommission." Third,
the Act provides that the district court filing procedures in the
Act provide the exclusive remedy and procedures to make claims
alleging discrimination. Section 49-2-509(7), MCA.
5
Applying the statutory time limits to Hash's claim, we
conclude that Hash's claim is barred because it was filed too late
under any of the statutory provisions. On June 19, 1991, U.S. West
notified Hash that her position would be eliminated; we concluded
above that that was the date of the alleged discriminatory act. On
June 5, 1992, 351 days after the alleged discriminatory act, Hash
filed her claim with the HRC. Accordingly, Hash did not comply
with the 180-day filing requirement of § 49-Z-501(2) (a), MCA, and
her complaint was barred under that section. Section 49-2-
501(2) (a), MCA.
In the alternative, we determine whether Hash complied with
the 300-day time limit set forth in 5 49-2-501(2) (b), MCA. Hash
testified in her August 20, 1993 affidavit that she followed what
she believed to be a written U.S. West policy for handling a
discrimination complaint within the company. The record is not
clear on the specifics of U.S. West's grievance policy.
Nevertheless, assuming that Hash initiated whatever intra-company
grievance policies were available to her in December 1991, when she
filed her complaint with U.S. West's personnel officer, that
grievance procedure concluded in late May 1992, when Hash was
notified of U.S. West's conclusion that it found no discrimination.
This was more than 120 days after she initiated the U.S. West
grievance, so we must then examine whether Hash filed her claim
within 300 days after the alleged unlawful discriminatory practice
occurred. Section 49-2-501(2) (b), MCA. Again, Hash filed her
claim 351 days after the alleged discriminatory act. Under this
6
analysis, too, Hash's claim is barred by § 49-Z-501(2) (b) and (c),
MCA.
Hash clearly did not file with the HRC within 180 days of the
alleged discriminatory acts, as required by 5 49-2-501(2) (a), MCA.
Similarly, since the grievance procedure initiated in December 1991
did not conclude within 120 days, Hash did not file within the 300-
day period allowed under 5 49-2-501(2) (b), MCA. Her complaint with
the HRC was thus time-barred and properly rejected by the HRC.
Section 49-2-501(2) (c), MCA.
The HRC's issuance of a right-to-sue letter does not toll the
statutory period. A HRC right-to-sue letter constitutes "the
completion of the administrative process with regard to any
complaint of discrimination in which a right to sue letter is
issued." 24.9.264(l), ARM. The HRC does not have the authority to
establish jurisdiction in a district court. Rather, a right-to-sue
letter is one mechanism permitting a claimant to proceed beyond the
HRC, assuming jurisdiction in the district court is otherwise
legally established.
In the instant case, the HRC concluded that Hash's complaint
was time barred and could not be considered by the HRC. In a
letter to Hash, the HRC stated it would docket her complaint and
issue a right-to-sue letter so that she could pursue the matter in
district court. The letter further advised that Hash would "have
to establish that the matter was within the jurisdiction of the
Commission." See 5 49-2-509(3)(a), MCA; see qenerally 24.9.262A-
265, ARM. She was unable to do that.
Hash asserts that timely filing of a discrimination claim with
the HRC is not a prerequisite to filing with the district court.
We previously have resolved this issue against Hash's position. In
Harrison v. Chance (1990), 244 Mont. 215, 797 P.2d 200, we held
that the Act provides the exclusive remedy for sexual
discrimination claims. We did so on the basis that a 1987
legislative amendment made the Act the exclusive remedy for sexual
discrimination. We held that the "statutory procedures for
discrimination are exclusive remedies and cannot be bypassed."
Harrison, 797 P.2d at 203. Like the plaintiff in Harrison, Hash
chose to file a discrimination claim in district court without
first timely filing her complaint with the HRC.
In 1987, the Legislature amended the Illegal Discrimination
chapter to provide that:
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 violation of the
discrimination provisions of Arzicle II, section 4, of
the Montana constitution or 49-l-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.
Section 49-2-509(7), MCA. The Legislature was aware that under an
argument like Hash's, "persons alleging acts that violate the
discrimination provisions of the [Act] . . need no longer
vindicate their rights under the provisions of [the Act] .'I
Harrison, 797 P.2d at 203; quoting Comments from the Hearing on
House Bill 393 Before the Senate Judiciary Committee, 50th
Legislature, (March 20, 1987), Exhibit No. 3. The Legislature
8
clearly intended that the Act be the exclusive remedy for
discrimination claims. We adopted this intent in Harrison and
maintain it in the instant case. To permit parties to delay filing
with the HRC until the HRC filing time ran out and then file their
claims directly in district court would, in a sense, gut the Act.
We reaffirm our decision that the HRC is the exclusive remedy for
Hash's discrimination claim.
III
Did the District Court err by failing to find a genuine issue
of material fact as to whether the time period for filing a claim
was equitably tolled?
This Court previously considered the doctrine of equitable
tolling, which applies when an "injured person has several legal
remedies and, reasonably and in good faith, pursues one." Erickson
v. Croft (1988), 233 Mont. 146, 152, 760 P.2d 706, 709; citing
Collier v. City of Pasadena (App. 1983), 191 Cal.Rptr. 681, 684;
Harrison, 797 P.2d at 208.
In this case the doctrine of equitable tolling is not
applicable because Hash did not have more than one legal remedy
available to her, any one of which she could pursue, in good faith.
She had one legal remedy. As we have indicated above, it was
Hash's obligation to first timely file her complaint before the
HRC, timely filing before the HRC being a prerequisite to her
filing in District Court. While she had the right to pursue her
intra-company remedy, she was required to do that within the
context of the time limitations imposed for filing before the HRC,
9
as we have discussed above.
Affirmed.
10
Justice Terry N. Trieweiler dissenting.
I dissent from the majority's conclusion that an untimely
complaint to the Human Rights Commission precludes a timely
complaint in District Court.
U.S. West's argument, with which the majority agrees, is that
because Title 49, Chapter 2, of the Montana Code Annotated (the
Act), is the exclusive remedy for victims of discrimination, a
district court complaint cannot be filed unless there was a timely
complaint filed before the Human Rights Commission.
I agree that pursuant to § 49-2-509(7), MCA, the provisions of
the Act provide the exclusive remedy for victims of discrimination.
However, I also conclude that the plain language of the Act permits
the District Court complaint in this case, and that it is the
majority who have avoided the Act by superimposing their own
procedural requirements which are not otherwise provided.
The problem with the majority opinion is that its entire
analysis focuses on whether Hash's complaint before the Commission
was timely. Having concluded that it was not, the majority then
comes to the further conclusion, without any real analysis, that
the District Court complaint must also have been untimely.
However, based on the terms of the Act, the latter conclusion does
not follow from the first.
Hash concedes that if U.S. West's act of discrimination was
notification that her position was being eliminated, then her
complaint with the Commission was untimely. Therefore, the
analysis should begin from that point.
11
Section 49-2-501(c), MCA, provides that "[alny complaint not
filed within the time set forth herein may not be considered by the
commission.'1 In other words, the Commission has no jurisdiction to
consider an untimely complaint. However, § 49-2-509(3) (a), MCA,
provides that:
(3) The commission staff may dismiss a complaint
filed under 49-2-501 and allow the complainant to file a
discrimination action in district court if:
(a) the commission staff determines that the
commission lacks jurisdiction over the complaint . .
That is exactly what the Commission did in this case. The
only remaining question then is whether, once the letter
authorizing suit was issued, Hash filed a timely complaint in the
District Court.
Section 49-2-509(5), MCA, provides in part that:
Within 90 days after receipt of a notice of dismissal
under section (3) the complainant may petition the
district court in the district in which the alleged
violation occurred for appropriate relief.
In this case, the Commission issued its letter to Hash
authorizing her to file her claim in District Court on December 9,
1992. Her complaint was filed on March 3, 1993, within the 90 days
authorized under the Act. It was, therefore, timely pursuant to
the plain language of the Act.
The only way to avoid this conclusion is to ignore the plain
language of the Act in favor of the majority's own public policy
considerations. To do so violates, rather than follows, the
exclusive remedy provision found at 5 49-2-509(7), MCA.
The majority concludes that:
12
To permit parties to delay filing with the HRC until the
HRC filing time ran out and then file their claims
directly in district court, would in a sense, gut the
Act.
That conclusion is incorrect. The Commission is not required
to issue a right-to-sue letter in all cases where the complaint to
the Commission is untimely. Section 49-Z-509(2) (b), MCA, provides
that:
(2) The commission staff may refuse to permit
removal of a case to district court if:
ibj . the party requesting removal has waived the
.
right to request removal to the district court . .
It would not be an abuse of discretion for the Commission to
conclude that a claimant had waived his or her right to request
removal based on the length of time by which the Commission
complaint was late. However, allowing the Commission to exercise
discretion by choosing to issue a right-to-sue letter under
subparagraph (3) (a), or declining to issue a right-to-sue letter
pursuant to subparagraph (2) (b), strengthens the Act, rather than
weakening it, by providing the Commission with greater latitude to
have claims decided on their merits, rather than based on
procedural defects.
For these reasons, I dissent from the majority's conclusion
that Tina Hash's complaint in the District Court was barred by her
failure to file a timely complaint before the Human Rights
Commission. I would reverse the judgment of the District Court.
Because of my conclusion that Tina Hash's claim in the
District Court was timely pursuant to the plain language of the
13
Act, I do not find it necessary to discuss the other issues raised
on appeal. However, I do not intend to imply by my failure to do
so that I agree with the majority's conclusions under either
Issue I or Issue III.
JusRL/ice
Justice William E. Hunt, Sr., joins in the foregoing dissenting
opinion.
Justice
14
December 19, 1994
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
Dustin Deissner, Esq.
Van Camp & Bennion, P.S.
W. 1707 Broadway
Spokane, WA 99201
Russell K. Jones, Esq.
w. 9 Post #315
Spokane, WA 99202
Ronald F. Waterman, Esq. (&&cc/ v9
Gough, Sham-&an, Johnson & Waterman
P.O. Box 1715
Helena, MT 59624
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA