Arthur v. Pierre Ltd., 04-120.

• Decision Date: 01 November 2004
• Docket Number: No. 04-120.,04-120.
• Citation: 100 P.3d 987,323 Mont. 453,2004 MT 303
• Parties: Amber K. ARTHUR, Plaintiff and Appellant, v. PIERRE LIMITED, a Montana Corporation, d/b/a The Pollard Hotel; David H. Knight, individually; Hotel Company of Red Lodge, Inc., a Montana Corporation; Gargoyle Company of Red Lodge, a Montana Corporation; 11th Street Corporation, a Montana Corporation; and RLG Management Company, Inc., a Montana Corporation, Defendants and Respondents.
• Court: Montana Supreme Court

100 P.3d 987

2004 MT 303

323 Mont. 453

Amber K. ARTHUR, Plaintiff and Appellant, v. PIERRE LIMITED, a Montana Corporation, d/b/a The Pollard Hotel; David H. Knight, individually; Hotel Company of Red Lodge, Inc., a Montana Corporation; Gargoyle Company of Red Lodge, a Montana Corporation; 11th Street Corporation, a Montana Corporation; and RLG Management Company, Inc., a Montana Corporation, Defendants and Respondents.

No. 04-120.

Supreme Court of Montana.

Submitted on Briefs August 3, 2004.

Decided November 1, 2004.

For Appellant: L.B. Cozzens, Paul D. Odegaard; Cozzens, Warren & Harris, Billings, Montana.

For Respondents: James R. Halverson; Herndon, Sweeney & Halverson, Billings, Montana.

Chief Justice KARLA M. GRAY delivered the Opinion of the Court.

¶ 1 Amber K. Arthur (Arthur) appeals from the judgment entered by the Twenty-Second Judicial District Court, Carbon County, on its order granting summary judgment to Defendants as to all six claims raised in Arthur's complaint. We affirm.

¶ 2 We restate the issues on appeal as follows:

¶ 3 1. Did the District Court err in granting summary judgment to the Defendants on five of Arthur's claims based on its determination that the claims were precluded by the exclusive remedy provision of the Montana Human Rights Act? ¶ 4 2. Did the District Court err in granting summary judgment to the Defendants on Arthur's sixth claim based on its determination that the claim was barred by the applicable statute of limitations?

BACKGROUND

¶ 5 In August of 1991, David Knight (Knight) incorporated the Hotel Company of Red Lodge (Hotel Company) under Montana law. Shortly thereafter, the Hotel Company purchased the Pollard Hotel (Pollard), a hotel, restaurant and bar located in Red Lodge, Montana. Knight subsequently incorporated Pierre Limited under Montana law in December of 1992. In June of 1994, the Hotel Company and Pierre Limited entered into an agreement pursuant to which the Hotel Company paid Pierre Limited to manage the Pollard's hotel and restaurant operations.

¶ 6 In January of 1995, Arthur became employed as a waitress in the Pollard's dining room. On August 2, 1997, the Pollard hired James Kennedy (Kennedy) as a night auditor. Approximately one month after beginning work for the Pollard, Kennedy received a written reprimand from the Pollard's management for making an improper comment to a different waitress in the Pollard's dining room. Soon after that, according to Arthur, Kennedy began subjecting Arthur to comments and actions of a sexually harassing nature.

¶ 7 Arthur resigned from her employment with the Pollard in August of 1998. Although her resignation letter did not specify her reason for leaving, Arthur subsequently contacted the Montana Human Rights Commission (MHRC) seeking assistance in filing a sexual harassment claim against the Pollard. In January of 1999, Arthur filed a written discrimination complaint against the Pollard with the MHRC, alleging the following incidents and conduct by Kennedy and Pollard management.

¶ 8 Beginning in December of 1997, Kennedy directed comments to Arthur when she walked past his work station regarding her body and her personal relationship with her boyfriend. In January of 1998, Arthur and another female employee approached the Pollard's assistant manager and expressed concern regarding inappropriate comments by Kennedy. The assistant manager took no action to resolve Arthur's concerns. That same month, Kennedy began to follow Arthur around the dining room while she was working and ask her questions about her personal life. In February of 1998, Kennedy slapped Arthur on the buttocks one day when she walked past his work station. Also beginning in February of 1998, Kennedy would approach Arthur in the dining room office or behind the bar on various occasions and stand in the entryway so she was "cornered" and could not move. Kennedy also appeared at Arthur's second job at a local pizza company to bring her gifts. Arthur again complained of Kennedy's actions to Pollard management in March of 1998, but no action was taken.

¶ 9 One afternoon in April of 1998, Arthur received an anonymous telephone call at her home. She recognized the voice on the phone as Kennedy. During the call, Kennedy stated he was the person who had been making prior anonymous phone calls to her. Arthur immediately contacted the Pollard, and she met with three members of the Pollard management staff that afternoon. Arthur was told that a written record of the meeting and her complaints would be made by the Pollard's general manager. Although management told Arthur she would no longer be left alone in the dining room at night when Kennedy was working, by May of 1998 Arthur was being left alone at night to complete the day's paperwork. In June of 1998, Kennedy again began approaching Arthur in the dining room to talk to her. One evening in that same month, when Arthur was bringing money from the dining room to the front office, Kennedy stated to her that "I like to beat my waitress." Arthur reported the incident to Pollard management, but no action was taken. In July of 1998, Arthur gave the Pollard her written two-week notice of resignation, stating her last day of work was August 1, 1998. After Arthur resigned from the Pollard, Kennedy continued to follow her around town and she eventually obtained a restraining order against him. At the time she filed her discrimination complaint against the Pollard with the MHRC, charges were pending against Kennedy for violating the restraining order.

¶ 10 After Arthur filed her complaint, the MHRC contacted Knight requesting a response to the complaint on behalf of the Pollard. The MHRC specifically requested a copy of Arthur's personnel file, as well as statements from Kennedy and the Pollard management staff responding to Arthur's allegations. Knight responded that Kennedy and the various management staff members named in the complaint no longer worked for the Pollard and, as a result, he was unable to obtain their statements. He provided the personnel files of both Arthur and Kennedy. Kennedy's file contained only a reference to the incident in August of 1997 involving a different Pollard dining room employee; there was no reference to any of the other incidents alleged by Arthur. Moreover, Knight stated the Pollard had no other records documenting the incidents alleged in the complaint.

¶ 11 The MHRC then requested that Arthur provide a written rebuttal to Knight's response. Arthur failed to do so. Consequently, on April 6, 1999, the MHRC sent Arthur a notice of dismissal and right to file a civil action in district court. The notice specifically stated that Arthur had 14 days after being served with the notice in which to file objections to the dismissal and, if she did not file objections, she had 90 days from service in which to file an action in district court if she wished to pursue her complaint. Arthur did not file objections to the notice of dismissal and did not file an action in district court within 90 days.

¶ 12 On April 19, 2001, however, Arthur filed a complaint in the District Court against Knight and Pierre Limited alleging various tort causes of action and requesting compensatory and punitive damages. More than two years later, she filed an amended complaint, in part to add as named defendants various corporations incorporated by Knight under Montana law (hereafter, Knight and all the corporations are, collectively, "the Defendants"). Arthur's amended complaint asserted the following causes of action: (1) failure to provide a safe place to work, (2) negligent retention of Kennedy, (3) negligent supervision of Kennedy, (4) intentional infliction of emotional distress, (5) negligent infliction of emotional distress, and (6) sexual harassment under the Montana Human Rights Act (MHRA), § 49-2-101, MCA, et seq.

¶ 13 The Defendants subsequently moved the District Court for summary judgment, asserting that the first five of Arthur's claims were barred by the exclusive remedy provision of the MHRA and her sexual harassment claim was barred by the applicable statute of limitations. The District Court agreed and granted summary judgment to the Defendants on all of Arthur's claims. Arthur appeals.

STANDARD OF REVIEW

¶ 14 We review a district court's ruling on a summary judgment motion de novo, using the same Rule 56, M.R.Civ.P., criteria applied by that court. Jobe v. City of Polson, 2004 MT 183, ¶ 10, 322 Mont. 157, ¶ 10, 94 P.3d 743, ¶ 10. Rule 56(c), M.R.Civ.P., provides that summary judgment shall be granted

if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

The party moving for summary judgment bears the initial burden of establishing the absence of genuine issues of material fact and entitlement to judgment as a matter of law. If the moving party meets this burden, the burden shifts to the nonmoving party to establish, by more than mere denial and speculation, that a genuine issue of material fact exists. If a court determines there are no genuine issues of material fact, the court must determine whether the moving party is entitled to judgment as a matter of law. This determination constitutes a conclusion of law which we review for error. Jobe, ¶ 10.

DISCUSSION

¶ 15 1. Did the District Court err in granting summary judgment to the Defendants on five of Arthur's claims based on its determination that the claims were precluded by the exclusive remedy provision of the MHRA?

¶ 16 The MHRA recognizes that the right to be free from discrimination on the basis of race, creed, religion, color, sex, physical or mental disability, age or national origin is a civil right which includes the right to obtain and hold employment without discrimination. See § 49-1-102(1), MCA. Moreover,...