Harrison v. Chance

Decision Date20 August 1990
Docket NumberNo. 90-073,90-073
Citation797 P.2d 200,244 Mont. 215
Parties, 68 Fair Empl.Prac.Cas. (BNA) 1445, 55 Empl. Prac. Dec. P 40,504 Carol Thomas HARRISON, Plaintiff and Appellant, v. James Edward CHANCE, Defendant and Respondent.
CourtMontana Supreme Court

Samuel M. Warren, Worden, Thane & Haines, Missoula, for defendant and respondent.

David Rusoff, Montana Human Rights Com'n, Helena, for amicus curiae.

TURNAGE, Chief Justice.

Appellant Carol Harrison appeals an order of the Fourth Judicial District Court, Ravalli County, granting summary judgment to respondent James Chance on the ground that the Human Rights Commission provides the exclusive remedy for her claim of sexual harassment against her employer. Harrison also appeals the District Court's award of costs to the respondent and the court's refusal to impose Rule 11, M.R.Civ.P., sanctions. We affirm with a minor exception.

ISSUES

1. Did the District Court err in granting the respondent summary judgment on the grounds that the exclusive remedy provision of the Montana Human Rights Act, § 49-2-509(7), MCA, requires the appellant to pursue her sexual harassment claim through the Human Rights Commission rather than filing a complaint in district court?

2. Did the District Court err in holding that the exclusive remedy provision of § 49-2-509(7), MCA, applied to the appellant's claim even though the acts complained of pre-dated passage of provision?

3. Did the District Court err in not holding that application of the Montana Human Rights Act's exclusive remedy provision and 180-day statute of limitations unconstitutionally deprived the appellant of her rights to contract, substantive due process, and equal protection under the Montana and United States Constitutions?

4. Did the District Court err in refusing to sanction the respondent under Rule 11, M.R.Civ.P., for including non-compensable expenses in his memorandum of costs?

5. Did the District Court err in awarding the respondent the cost of taking the appellant's deposition?

FACTS

Respondent Chance employed appellant Harrison from September 1986 to March 1987 as a horse trainer. Harrison alleges that during her employment, Chance repeatedly made unwelcome sexual advances culminating in a demand that she either "put out or get out." Harrison responded to the ultimatum by resigning and filing a tort action against Chance in the Fourth Judicial District Court. The District Court, however, granted Chance's motion for summary judgment reasoning that under § 49-2-509(7), MCA, proceedings before the Montana Human Rights Commission provided the exclusive remedy for actions based on sexual harassment. The court also awarded the respondent damages and refused the appellant's motion for Rule 11, M.R.Civ.P., sanctions against the respondent. Harrison now appeals those orders.

THE EXCLUSIVE REMEDY

Did the District Court err in granting the respondent summary judgment on the grounds that the exclusive remedy provision of the Montana Human Rights Act, § 49-2-509(7), MCA, requires the appellant to pursue her sexual harassment claim through the Human Rights Commission rather than filing a complaint in district court?

Summary judgment may be granted when there is no genuine issue of material fact and the movant is entitled to a judgment as a matter of law. Rule 56(c), M.R.Civ.P. Unlike most summary judgment appeals, the question here is not whether there is an issue of fact; the question is whether Chance is entitled to judgment as a matter of law. Harrison argues that he is not for a number of interrelated reasons. To simplify discussion, we will consider each reason separately.

Drinkwalter v. Shipton Supply Co., Inc.

The appellant relies on Drinkwalter v. Shipton Supply Co., Inc. (1987), 225 Mont. 380, 732 P.2d 1335, in arguing that the Montana Human Rights Act does not provide the exclusive remedy for sexually discriminatory acts in the work place. Like Harrison, the plaintiff in Drinkwalter chose to file a district court action alleging several torts based on sexual harassment by her employer rather than filing with the We do not agree that Drinkwalter is controlling; a 1987 amendment to the Human Rights Act legislatively overruled Drinkwalter. At the time Drinkwalter was decided, the Montana Human Rights Act did not contain the exclusive remedy provision of § 49-2-509(7), MCA. During hearings before the Senate Judiciary Committee to consider various amendments to the Human Rights Act, LeRoy H. Schramm, Chief Legal Counsel of the Montana University System, proposed an additional amendment based on the following rationale:

                Human Rights Commission.   This Court held that, because the legislature had not indicated a clear intent to abolish other common law remedies, the Human Rights Commission did not provide the exclusive remedy for sexual harassment.  Drinkwalter, 225 Mont. at 384, 732 P.2d at 1338
                

On February 23, 1987, the Montana Supreme Court decided the case of Drinkwalter v. Shipton. Under the holding of that case, persons alleging acts that violate the discrimination provisions of the Human Rights Act and the Governmental Code of Fair Practices need no longer vindicate their rights under the provisions of these acts. Rather, they are allowed to completely bypass the administrative procedures set up by statute and go directly to court alleging tort theories of recovery grounded on the individual dignities clause of the constitution. This amendment would make clear that the statutory procedures for discrimination are exclusive remedies and cannot be bypassed.

Hearing on House Bill 393 Before the Senate Judiciary Committee, 50th Legislature, (March 20, 1987), Exhibit No. 3. The 1987 Legislature adopted the proposed amendment without change or comment as § 49-2-509(7), MCA. It reads:

The provisions of this chapter [§§ 49-2-101 through -601, MCA] establish the exclusive remedy for acts constituting an alleged violation of this chapter, including acts that may otherwise also constitute a violation of the discrimination provisions of Article II, section 4, of the Montana constitution or 49-1-102. 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.

While it is not clear that the legislature adopted Chief Counsel Schramm's rationale, the passage of the exclusive remedy provision so close in the wake of Drinkwalter and the plain language of the provision indicate that the legislature intended the procedures of the Human Rights Commission provide the exclusive remedy for discrimination in employment.

Harassment vs. Discrimination

Harrison argues that her claim does not fall under the Human Rights Act because Chance's alleged acts were sexual harassment, not sexual discrimination. The appellant correctly points out that in Drinkwalter this Court stated in dicta that sexual harassment is not sexual discrimination subject to the Human Rights Act. Drinkwalter, 225 Mont. at 385, 732 P.2d at 1339. The current authority, however, overwhelmingly supports the opposite conclusion.

The Human Rights Commission itself defines sexual harassment as sexual discrimination. In the construction of a statute, this Court gives deference to the interpretations of the agency charged with its administration. State v. Midland Materials Co. (1983), 204 Mont. 65, 70, 662 P.2d 1322, 1325. The Commission has explicitly adopted the federal Guidelines on Sexual Discrimination promulgated by the United States Equal Employment Opportunity Commission. A.R.M. 24.9.1407. Those guidelines provide:

Harassment on the basis of sex is a violation of Sec. 703 of Title VII. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment 29 C.F.R. § 1604.11(a).

decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.

Other jurisdictions' interpretations of laws similar to Montana's Human Rights Act also provide persuasive evidence that sexual harassment is sexual discrimination. Because the Montana Human Rights Act was closely modeled after Title VII, reference to federal case law is both appropriate and helpful in construing the Montana Human Rights Act. Johnson v. Bozeman School Dist. No. 7 (1987), 226 Mont. 134, 139, 734 P.2d 209, 212. The United States Supreme Court holds that under Title VII,

Without question, when a supervisor sexually harasses a subordinate because of the subordinate's sex, that supervisor "discriminate[s]" on the basis of sex.

Meritor Savings Bank, FSB v. Vinson (1986), 477 U.S. 57, 64, 106 S.Ct. 2399, 2404, 91 L.Ed.2d 49, 58. Furthermore, every state considering the issue, as well as the District of Columbia, have reached the same conclusion in construing their human rights acts. Holien v. Sears, Roebuck and Co. (1984), 298 Or. 76, 689 P.2d 1292, 1299; Howard Univ. v. Best (D.C.App.1984), 484 A.2d 958, 978; Continental Can Co., Inc. v. State (Minn.1980), 297 N.W.2d 241, 249; see also Glasgow v. Georgia-Pac. Corp. (1985), 103 Wash.2d 401, 693 P.2d 708, 712.

The reason behind this rule is apparent. When sexual harassment is directed at an employee solely because of gender, the employee is faced with a working environment fundamentally different from that faced by an employee of the opposite gender. Continental Can Co., 297 N.W.2d at 248. That difference constitutes sexual discrimination in employment. We hold that sexual harassment...

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