Bruner v. Yellowstone County, No. 95-026

• Docket Nº: No. 95-026
• Citation: 272 Mont. 261, 900 P.2d 901
• Case Date: August 03, 1995
• Court: United States State Supreme Court of Montana

Page 901

900 P.2d 901 272 Mont. 261, 10 IER Cases 1578 Wendi BRUNER, Plaintiff, Appellant,
v.
YELLOWSTONE COUNTY, a body politic, Yellowstone County
Attorney, Dennis Paxinos, Sr., Michael S. Matthew, H. Elwood
English, and its former Deputy County Attorney, David W.
Hoefer, Defendants, Respondents. No. 95-026. Supreme Court of Montana. Submitted on Briefs April 27, 1995.
Decided Aug. 3, 1995.

Page 902

[272 Mont. 263] A. Clifford Edwards, Roger W. Frickle, Edwards Law Firm, Billings, for appellant.

Page 903

Carey E. Matovich, Matovich, Addy & Keller, Billings, for respondents.

WEBER, Justice.

This is an appeal from grant of summary judgment to the defendants by the Thirteenth Judicial District Court, Yellowstone County. We affirm.

The following issue is dispositive of the case:

Did the District Court err in granting summary judgment on the issues of negligent retention and sexual harassment?

Plaintiff, Wendi Bruner was employed as a secretary by the Yellowstone County Attorney's Office from August of 1991 until she tendered her resignation on April 8, 1992. In her resignation, plaintiff claimed that she had been continually sexually harassed by then Deputy County Attorney David Hoefer.

On April 9, 1992, County Attorney Dennis Paxinos hired a private investigator to investigate plaintiff's allegations and pending the investigator's findings, suspended Hoefer with pay. The investigator concluded that the charges were warranted and Paxinos then terminated Hoefer without pay on May 19, 1992.

[272 Mont. 264] In its Memorandum and Order, the District Court pointed out that Hoefer began grievance procedures against the County and on May 22, 1992, the Board of County Commissioners conducted a preliminary hearing and on that date negotiated a compromise settlement with Hoefer. On June 1, 1992, Hoefer executed a release and settlement agreement with the County which provided that Hoefer tendered his voluntary resignation effective May 19, 1992 and released any and all claims between Yellowstone County and himself in return for $30,000 in settlement. While the $30,000 settlement was reported in the media, the settlement agreement contained a confidentiality clause and terms were not released to the public until after the County officials were compelled to release the documents.

On September 1, 1993, plaintiff filed a complaint with the Equal Employment Opportunity Commission, which rejected the claim as untimely, but issued a right to sue letter. On the same date the plaintiff filed a complaint of sexual harassment with the Montana Human Rights Commission (MHRC). In January, 1994, MHRC considered the length of delay in filing, but concluded that the statute of limitations was tolled on an equitable estoppel theory and that plaintiff's claim was timely made. MHRC dismissed the plaintiff's complaint without prejudice but did not issue a right to sue letter.

On April 1, 1994, plaintiff filed her First Amended Complaint in Yellowstone County District Court charging the defendants with negligent retention and sexual harassment and charging Hoefer with battery as well. Following two motions for summary judgment, the District Court held a hearing and thereafter issued its order on November 25, 1994, granting summary judgment to the defendants on all counts. Plaintiff appeals this order.

Standard of Review

The standard of review for a grant of summary judgment is well settled in Montana. This Court will apply the same evaluation as the district court based upon Rule 56, M.R.Civ.P. The movant must demonstrate that no genuine issues of material fact exist. Toombs v. Getter Trucking, Inc. (1993), 256 Mont. 282, 846 P.2d 265. Once this has been accomplished, the burden then shifts to the non-moving party to prove, by more than mere denial and speculation, that a genuine issue does exist. S.M. v. R.B. (1993), 261 Mont. 522, 862 P.2d 1166. Having determined that genuine issues of fact do not exist, the court must then determine whether the moving party is entitled to judgment as a matter of law. Lindey's, Inc. v. Professional Consultants[272 Mont. 265] , Inc. (1990), 244 Mont. 238, 797 P.2d 920. We review the legal determinations made by a district court as to whether the court erred. Matter of Estate of Alcorn (1994), 263 Mont. 353, 868 P.2d 629.

ISSUE

Did the District Court err in granting summary judgment on the issues of negligent retention and sexual harassment?

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The District Court concluded that the exclusive remedy for injury occasioned by this type of conduct is to be found in the Montana Human Rights Act under § 49-2-509(7), MCA. Reference was made to Harrison v. Chance (1990), 244 Mont. 215, 797 P.2d 200, which so holds. The court further concluded that plaintiff had failed to bring her claim in a timely fashion under the relevant statutes whether the 180 day statute or the 300 day statute be applied. Plaintiff had failed to bring a claim for more than 487 days. The District Court referred to the following allegation in the verified complaint of the plaintiff before the MHRC:

I knew that I had legal rights available to me to sue the County, however, I was willing to forego those rights on condition that Mr. Hoefer be removed from his employment and would never be in a position to sexually harass a secretary again.

Plaintiff contends the defendants are directly liable to her for negligence in retaining Hoefer, independent of Hoefer's sexually harassing conduct. Plaintiff argues that the defendants knew of Hoefer's conduct toward women but did nothing and that had the defendants acted responsibly, she would not have been injured by Hoefer.

Defendants contend that plaintiff cannot bring a tort action for negligent retention because it is still a tort action which was derived from Hoefer's sexual harassment and that plaintiff's sexual harassment claim is barred due to its untimeliness.

As the moving parties for summary judgment, the defendants had to show a complete absence of any genuine issues of fact deemed material in light of substantive principles that entitle that party to judgment as a matter of law. S.M., 862 P.2d at 1168. The defendants contend they satisfied that burden by showing that no material facts existed which would provide a cause of action against the County. Plaintiff also relies upon the letter sent by the County Attorney to Hoefer on May 19, 1992, following her resignation and the independent investigation. The letter contained the following paragraph with regard to Hoefer:

272 Mont. 266] Specifically you were warned by both Chief Deputy Daniel Schwarz and myself [Paxinos] that your expectation that [Wendi] accompany you to all your court matters had been overdone. We further warned you that you were alienating [Wendi] from the rest of the staff ... You were specifically requested to attend a seminar dealing specifically with sexual harassment, which you did. Chief Deputy Schwarz and myself gave you specific instructions to neither take breaks nor have lunch with [Wendi] alone. You were specifically instructed that there should always be at least one other support staff person or fellow attorney to protect both yourself and [Wendi] from any allegations of misconduct or inappropriate behavior

While this letter suggests the possibility that the County Attorney had knowledge of Hoefer's conduct prior to the date of his dismissal, such facts are not material to the resolution of the summary judgment issue. Summary judgment is appropriate where a plaintiff fails to set forth facts which would establish each element of the alleged cause of action. Dvorak v. Matador (1986), 223 Mont. 98, 727 P.2d 1306. Plaintiff merely argues that the defendants knew before her resignation that Hoefer was causing problems. In itself that letter fails to establish the elements of the tort of negligent retention.

The letter does demonstrate that the defendants had taken steps to eradicate unprofessional behavior on Hoefer's part. Plaintiff failed to rebut the elements of the affidavit of the County Attorney which established that as soon as the County Attorney was notified by the plaintiff that a problem existed, Hoefer was suspended and investigated. The affidavit establishes without contradiction that Hoefer never worked a day after the plaintiff resigned. Plaintiff failed to set...