Jansen v. Lemmon Federal Credit Union, 19671

• Court: Supreme Court of South Dakota
• Citation: 1997 SD 44,562 N.W.2d 122
• Docket Number: No. 19671,19671
• Parties: Yvette JANSEN, Plaintiff and Appellant, v. LEMMON FEDERAL CREDIT UNION, Defendant and Appellee. . Considered on Briefs
• Decision Date: 14 January 1997

Page 122

562 N.W.2d 122 1997 SD 44 Yvette JANSEN, Plaintiff and Appellant,
v.
LEMMON FEDERAL CREDIT UNION, Defendant and Appellee. No. 19671. Supreme Court of South Dakota. Considered on Briefs Jan. 14, 1997.
Decided April 23, 1997.

Dennis Maloney of Maloney & Maloney, Aberdeen, for plaintiff and appellant.

Steven J. Helmers of Truhe, Beardsley, Jensen, Helmers and Von Wald, Rapid City, for defendant and appellee.

KONENKAMP, Justice.

¶1 Yvette Jansen brought employment discrimination charges against Lemmon Federal Credit Union. After investigating, the Division of Human Rights found no probable cause on her claim of "retaliation-constructive discharge." Without appealing this finding, Jansen then brought the same charge in a civil action. Can she reassert the matter in circuit court without first successfully appealing the adverse Division ruling? The circuit court dismissed, and we affirm, holding she failed to exhaust administrative remedies.

Facts

¶2 Jansen was employed at the Credit Union for five years. In May 1992, a loan officer position opened. She applied, but was passed over in favor of a male applicant she considered less qualified. She filed charges of discrimination with the Human Rights Division. While the matter was pending, she remained in her job for approximately a year and then left, but the evidence is conflicting about whether she left voluntarily or was asked to resign. After an investigation pursuant

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to SDCL ch. 20-13, the Division found probable cause for Count 1, "discriminatory failure to hire," but no probable cause for Count 2, "retaliation-constructive discharge." By written notice, Jansen was informed of the dismissal on Count 2 and her right to appeal under SDCL 20-13-28.1 and 1-26-30. She never appealed.

¶3 As required by SDCL 20-13-32, the Division pursued conciliation on the surviving charge, but the Credit Union declined. By Division order, the Credit Union then had to answer the charge in Count 1. Before it responded, however, Jansen decided to seek civil damages in circuit court. Her notice of election referred to Count 1 only. The Division acknowledged her decision and yielded jurisdiction.

¶4 When Jansen brought suit she asserted the substance of both Counts 1 and 2, corresponding to the charges advanced in her Division complaint. She later voluntarily dismissed Count 1, as that matter was apparently resolved. In the Credit Union's motion to dismiss Count 2 (retaliation-constructive discharge), it asserted the trial court lacked subject matter jurisdiction: Jansen had failed to establish probable cause before the Division and had not appealed. The court granted the motion, and Jansen appeals asking whether SDCL 20-13-35.1 permits her to bring a civil action despite a finding of "no probable cause," without first having appealed that decision. Jansen believes our ruling in Montgomery v. Big Thunder Gold Mine, Inc., 531 N.W.2d 577 (S.D.1995), allows her to proceed in circuit court.

Analysis and Decision

¶5 We review dismissals to determine whether the movant was entitled to prevail as a matter of law. Springer v. Black, 520 N.W.2d 77, 78 (S.D.1994); Estate of Billings v. Jehovah Witnesses, 506 N.W.2d 138, 140 (S.D.1993). In Montgomery, we construed SDCL 20-13-35.1 ¹ where a complainant sued for sexual harassment and wrongful termination in circuit court without first filing a charge with the Division. 531 N.W.2d at 578. Under our statutes one has no option--discrimination claims must be filed first with the Division. Id. at 579 (citing Weller v. Spring Creek Resort, Inc., 477 N.W.2d 839, 840 (S.D.1991)). Montgomery claimed SDCL 20-13-35.1 allowed her to "effectively ... bypass the administrative process altogether." Id. A plain reading of the statute, however, meant the Division only lost jurisdiction after it investigated a charge, found probable cause, and the charging party then elected to pursue civil remedies.

¶6 Jansen highlights the following language from Montgomery: "Thus when a person files a charge alleging a discriminatory or unfair practice, the parties need not carry the administrative process to completion before starting a civil action." Id. To her this means she need not exhaust administrative remedies, including appealing a "no probable cause" finding, before starting an action based on the same claim in circuit court. The quoted sentence merely explained a person's options under SDCL 20-13-35.1 after complying with the requisite administrative process, including an appeal, if necessary. In short, SDCL 20-13-28 gives the Division the power to validate charges. If probable cause is found, the Division...