Clark v. Missoula Cnty. Sheriff McDermott, DA 21-0591

Docket NºDA 21-0591
Citation2022 MT 186
Case DateSeptember 27, 2022
CourtUnited States State Supreme Court of Montana

2022 MT 186

JOSHUA F. CLARK, Plaintiff and Appellant,


No. DA 21-0591

Supreme Court of Montana

September 27, 2022

Submitted on Briefs: July 27, 2022

APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DV-15-1290 Honorable Jennifer B. Lint, Presiding Judge.

For Appellant: Quentin M. Rhoades, Rhoades &Erickson PLLC, Missoula, Montana.

For Appellees Missoula County Sherriff T.J. McDermott and County of Missoula: Steven S. Carey, David T. Lighthall, Carey Law Firm, P.C. Missoula, Montana

For Appellee Human Rights Commission: Quinlan L. O'Connor, Montana Department of Labor &Industry, Helena, Montana




¶1 Joshua Clark appeals a Fourth Judicial District Court Judgment rejecting his appeal of the Montana Human Rights Commission's ("Commission") Final Agency Decision on his Human Rights Complaint. Clark argues that the District Court erroneously dismissed his related 42 U.S.C. § 1983 claim when it ruled that the Montana Human Rights Act was the exclusive remedy for Clark's claims grounded in political discrimination. We agree with Clark on this point but affirm nonetheless because the District Court's later ruling upholding the Final Agency Decision-which Clark does not challenge-has preclusive effect against Clark's attempt to reinstate his § 1983 claim.


¶2 In 2014, Clark ran against Terry McDermott for the office of Missoula County Sheriff. After McDermott won the election, he reassigned Clark from Undersheriff- Clark's title prior to the election-to the position of Senior Deputy. The record reflects a tense relationship between Clark and McDermott. In 2013, McDermott filed a human rights complaint, alleging discrimination and retaliation based on his political beliefs, against the Missoula County Sheriff's Office, the Sheriff at the time, and a captain. Clark spoke critically of McDermott's character and fitness in an adverse witness statement to McDermott's complaint. During the 2014 Sheriff's campaign, Clark openly criticized


McDermott's ethics and filed a political practices complaint against McDermott. Clark alleges that, shortly before the 2014 election, McDermott approached him for a "closed-door talk," where he told Clark to "control [Clark's] wife" due to her outspoken remarks regarding McDermott, that McDermott planned to retire if he lost the election, and that he expected Clark to do the same.

¶3 On January 1, 2015, McDermott, after winning the election, demoted Clark five ranks to a Senior Deputy position-the lowest position for which Clark was eligible based on total law enforcement experience and seniority. McDermott appointed Jason Johnson as Undersheriff. Johnson reported to the media that Clark turned down a detective position, that Clark was satisfied with his move to Senior Deputy, and that "[Clark] felt like that was the fairest decision." Clark denied Johnson's statement. He reached out to both McDermott and Johnson to complain about Johnson's inaccurate portrayal of the situation. Neither McDermott nor Johnson corrected Johnson's public statement.

¶4 Clark's new position removed the benefits he enjoyed from his previous rank- weekends and nights off, a more flexible vacation schedule, and wearing plain clothes during the workday. Clark was assigned to the "graveyard" patrol shift with only two days' notice. Clark complained that he was unprepared for such a change, having not needed to qualify with his handgun "in duty gear" for over three years and not yet requalifying with his rifle. Further, Clark's new position did not include any supervisory duties despite his status as the "third most senior patrol deputy, and the most senior deputy without any rank on patrol."


¶5 Clark alleged that he suffered deterioration of his physical and emotional health and took a leave of absence on advice from his physician. Clark "learned that his medical leave was . . . the topic of open speculation at the sergeant's meeting the week of January 14, 2015." When Clark complained of this behavior to the Missoula County Human Resources Department Head, the specifics of his complaint were forwarded to McDermott and Johnson. Citing the "hostility" of McDermott and Johnson, Clark retired on January 30, 2015.

¶6 Clark filed a Human Rights Complaint with the Montana Human Rights Bureau (HRB) against Missoula County, McDermott, and Johnson in March 2015. In his Human Rights Complaint, Clark alleged that his reassignment to Senior Deputy violated prohibitions against retaliation and discrimination under §§ 49-2-301, -303, and -308, MCA; that his reassignment constituted a constructive discharge under § 39-2-903, MCA; that his reassignment violated the tenure of his previous position and the appropriate procedure for reassigning Undersheriff duties under §§ 7-32-2107 and -2102(2), MCA; that his reassignment implicated the Fourteenth Amendment to the United States Constitution; that his reassignment was actionable under § 1983; and that his reassignment was actionable under theories of negligence per se and intentional infliction of emotional distress. He based these claims on his demotion, his assignment to patrol during the graveyard shift without proper training or preparation, the efforts of McDermott and Johnson to "humiliate and belittle" him, and the treatment by McDermott and Johnson that he interpreted to be an "intimidating message" to others who might oppose their leadership.


¶7 While his Human Rights Complaint was pending, Clark filed a District Court complaint in December 2015 against Missoula County, McDermott, and Johnson. He alleged one claim for Wrongful Discharge and another claim for Intentional Infliction of Emotional Distress. Under his Wrongful Discharge claim, Clark alleged that the "acts and omissions" of the defendants amounted to "discrimination and retaliation in the workplace, wrongful discharge, negligence per se, intentional infliction of emotional distress," and actionable claims under § 1983. His complaint alleged nearly verbatim the factual background of the Human Rights Complaint with only minor, seemingly stylistic, changes.

¶8 In June 2016, following a three-day contested case hearing, the Hearing Officer presiding over Clark's Human Rights Complaint concluded that Clark failed to prove his alleged claims. The Hearing Officer granted judgment in favor of Missoula County, McDermott, and Johnson and dismissed Clark's Human Rights Complaint with prejudice. Clark appealed the Hearing Officer's decision to the Commission. The Commission held oral argument and issued a Final Agency Decision on the matter denying Clark's complaint. It concluded that the Hearing Officer's findings of fact were supported by competent substantial evidence in the record and her conclusions of law were correct. The Commission informed the parties they could petition the District Court for judicial review of the Final Agency Decision.

¶9 In September 2017, Clark filed an Amended Complaint with the District Court against Missoula County and McDermott (collectively the "County") and, "in the alternative and in addition," petitioned the District Court in the same pleading to review the Commission's Final Agency Decision. In his Amended Complaint, Clark realleged his


Wrongful Discharge and Intentional Infliction of Emotional Distress claims. He added one count alleging Unlawful Political Discrimination and one count alleging Unlawful Retaliation. He also sought declaratory action on the legal interpretation of § 7-32-2102(2), MCA. Clark further claimed that McDermott violated his rights protected by the First Amendment to the United States Constitution; accordingly, he alleged a separate count under 42 U.S.C. § 1983. To support his § 1983 claim, Clark argued that McDermott "deprived [him] of his particular rights under the United States Constitution" because "Clark's speech was a subsequent or motivating factor for the adverse employment action" that McDermott took against Clark. Again, the factual allegations in Clark's Amended Complaint were nearly verbatim to his Human Rights Complaint.

¶10 The County moved to dismiss Clark's Amended Complaint for failure to state a claim upon which relief could be granted under Rule 12(b)(6), M. R. Civ. P. The County argued that the factual basis for Clark's Amended Complaint was identical to the factual basis for his Human Rights Complaint-political discrimination and retaliation. Therefore, the Montana Human Rights Act ("MHRA") provided the "exclusive remedy" for Clark's Amended Complaint. The County argued that Clark could proceed in District Court only on his claim for judicial review of the Commission's Final Agency Decision.

¶11 In response, Clark did not refute that all of his claims centered on political discrimination and retaliation. Clark argued that if the MHRA did bar his claims, its exclusive remedy provision should be void because it would violate his fundamental right to a jury trial on his § 1983 claim. He argued also that Montana law did not bar the right to a jury trial for violations of First Amendment rights. Clark gave notice of a constitutional


issue regarding the validity of the MHRA; he argued that the "MHRA preemption of [his] fundamental right to a trial by jury on these claims cannot satisfy the rigors of strict scrutiny." The Commission, having previously noticed the parties of its intent to not partake in the District Court's judicial review, filed a reply brief to defend the MHRA against Clark's constitutional argument.

¶12 The District Court found that Clark's collective claims centered on theories of discrimination. It accordingly held that the MHRA was Clark's exclusive remedy and thus dismissed his...

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