Kershaw v. Mont. Dep't of Transp.

• Decision Date: 19 July 2011
• Docket Number: No. DA 10–0342.,DA 10–0342.
• Citation: 361 Mont. 215,257 P.3d 358,2011 MT 170
• Parties: Richard KERSHAW, Plaintiff and Appellant,v.MONTANA DEPARTMENT OF TRANSPORTATION and JOHN DOES I–X, Defendant and Appellee.
• Court: Montana Supreme Court

361 Mont. 215

257 P.3d 358

2011 MT 170

Richard KERSHAW, Plaintiff and Appellant,

v.MONTANA DEPARTMENT OF TRANSPORTATION and JOHN DOES I–X, Defendant and Appellee.

No. DA 10–0342.

Supreme Court of Montana.

Submitted on Briefs April 6, 2011.Decided July 19, 2011.

For Appellant: Daniel G. Gillispie; Gillispie Law Office, PLLC; Billings, Montana.

For Appellee: Pamela Snyder–Varns; Risk Management and Tort Defense Division; Helena, Montana.Justice JIM RICE delivered the Opinion of the Court.

[361 Mont. 215] ¶ 1 Richard Kershaw (Kershaw) brought an action alleging wrongful discharge from employment and intentional infliction of emotional distress against his former employer, Montana Department of Transportation (MDT or Department). Kershaw appeals from the orders entered by the Thirteenth Judicial District Court, Yellowstone County, granting summary judgment to MDT on Kershaw's claims and denying his motions to amend his complaint. We affirm. We restate the issues on appeal as follows:

¶ 2 1. Did the District Court err by concluding that the preclusion of Kershaw's claim from the Wrongful Discharge from Employment Act (WDEA) did not violate his constitutional rights to equal protection and to a jury trial?

¶ 3 2. Did the District Court abuse its discretion in denying Kershaw's motions for leave to amend the complaint?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 4 Kershaw worked at MDT from 1984 until February of 2007. In 2006, Kershaw was working as a bureau chief when he was placed on administrative leave pending a Department investigation into his job performance. On October 6, 2006, Kershaw met with several Department officials concerning the investigation and was asked whether he preferred voluntarily retiring or being discharged or demoted. Kershaw chose not to retire, and he was reassigned to a lower position. Upon completion of the investigation, Kershaw was advised by letter that he was demoted to License Permit Technician at a lower rate of pay. Enclosed with the letter were a grievance form and the Montana Administrative Rules setting forth the Board of Personnel Appeals' (BOPA) grievance procedure for MDT employees. Kershaw resigned in February 2007.

¶ 5 Kershaw did not file a grievance and pursue the procedure before BOPA set forth in §§ 2–18–1001, et seq., MCA. In April 2008, Kershaw filed a complaint in district court asserting three counts: Count I—wrongful discharge (constructive discharge) without good cause under the WDEA; Count II—wrongful discharge (violation of public policy) under the WDEA; and Count III—intentional infliction of emotional distress (IIED). MDT filed its Answer in October 2008 and moved for partial summary judgment on Count I, arguing that because Kershaw's discharge claim was subject to the BOPA grievance procedure, it was exempted from the WDEA. See § 39–2–912(1), MCA (the WDEA “does not apply to a discharge ... subject to any other state or federal statute that provides a procedure or remedy for contesting the dispute”). Kershaw defended, in part, on the ground that the BOPA grievance procedure, if his exclusive remedy, violated his right to equal protection. In January 2009, the District Court granted partial summary judgment to MDT on Count I, ruling that Kershaw was precluded from bringing his constructive discharge claim under the WDEA and that the BOPA grievance procedure did not violate equal protection. MDT also moved to dismiss Count II on the ground that it failed to state a claim upon which relief could be granted, and dismissal was stipulated to by Kershaw. Count III, the IIED claim, remained.

¶ 6 In April of 2009, Kershaw moved to amend his complaint to include additional tort claims of negligence, libel and slander, and breach of the implied covenant of good faith and fair dealing. MDT opposed the motion on grounds that Kershaw should not be allowed to change legal theories after a motion for summary judgment was filed because the case did not present extraordinary circumstances, and MDT would be prejudiced by an amendment. The District Court denied Kershaw's motion in May of 2009, and then entered a scheduling order for the remainder of the proceeding, setting November 27, 2009, as the deadline for amendment of pleadings. On February 19, 2010, Kershaw filed a “Renewed Motion for Leave to Amend Pleadings in the Interests of Justice” which largely challenged the conclusions of the May 2009 order denying his motion to amend. Kershaw argued that he did not need to show extraordinary circumstances and that amending the pleadings would not be futile. In April of 2010, the District Court denied Kershaw's Renewed Motion.

¶ 7 In February of 2010, MDT moved for summary judgment on Count III, arguing inter alia, the IIED claim arose out of Kershaw's employment dispute and was precluded by his failure to pursue the BOPA grievance procedure. Kershaw responded that the grievance procedure was not his exclusive remedy and did not apply to his emotional distress claims, and that granting summary judgment would violate his constitutional rights to equal protection and to a jury trial. In June of 2010, after hearing, the District Court granted MDT's motion.

¶ 8 Kershaw appeals from the orders granting summary judgment and the orders denying leave to amend his complaint.

STANDARD OF REVIEW

¶ 9 We review a district court's grant of summary judgment de novo, and we apply the criteria outlined in M.R. Civ. P. 56. Walters v. Flathead Concrete Prods., Inc., 2011 MT 45, ¶ 8, 359 Mont. 346, 249 P.3d 913 (citing Alexander v. Bozeman Motors, Inc., 2010 MT 135, ¶ 15, 356 Mont. 439, 234 P.3d 880). “Summary judgment is appropriate only when there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law.” Town & Country Foods, Inc. v. City of Bozeman, 2009 MT 72,¶ 12, 349 Mont. 453, 203 P.3d 1283 (citations omitted).

¶ 10 Our review of constitutional questions is plenary. Jaksha v. Butte–Silver Bow Co., 2009 MT 263, ¶ 13, 352 Mont. 46, 214 P.3d 1248 (citation omitted). “The constitutionality of a statute is a question of law, and we review a district court's legal conclusions for correctness.” Walters, ¶ 9 (citing Alexander, ¶ 16).

¶ 11 Generally, we review a district court's denial of a motion to amend pleadings to determine whether the district court abused its discretion. In re Thornton, 2009 MT 367, ¶ 14, 353 Mont. 252, 220 P.3d 395 (citing Peuse v. Malkuch, 275 Mont. 221, 226, 911 P.2d 1153, 1156 (1996)); Griffin v. Moseley, 2010 MT 132, ¶ 22, 356 Mont. 393, 234 P.3d 869 (a district court's decision denying leave to amend is generally reviewed for an abuse of discretion, except for a decision rendered pursuant to M.R. Civ. P. 15(c), which is reviewed de novo). “A district court abuses its discretion when ‘it acts arbitrarily, without employment of conscientious judgment, or in excess of the bounds of reason resulting in substantial injustice.’ ” Bitterroot River Protective Ass'n v. Bitterroot Conservation Dist., 2011 MT 51, ¶ 11, 359 Mont. 393, 251 P.3d 131 (citation omitted).

DISCUSSION

¶ 12 1. Did the District Court err by concluding that the preclusion of Kershaw's claim from the WDEA did not violate his constitutional rights to equal protection and to a jury trial?

¶ 13 Grievances arising out of the employment of MDT employees are governed by Title 2, Chapter 18, Part 10 of the Montana Code Annotated. Section 2–18–1001, MCA, provides:

(1) An employee of the department of transportation aggrieved by a serious matter of his employment based upon work conditions, supervision, or the result of an administrative action and who has exhausted all other administrative remedies is entitled to a hearing before the board of personnel appeals, under the provisions of a grievance procedure to be prescribed by the board, for resolution of the grievance.

(2) Direct or indirect interference, restraint, coercion, or retaliation by an employee's supervisor or the department of transportation against an aggrieved employee because the employee has filed or attempted to file a grievance with the board shall also be basis for a grievance and shall entitle the employee to a hearing before the board for resolution.

(3) A grievance under this part must be filed with the board of personnel appeals within 180 days after the alleged incident or action occurred. Failure to file the grievance within this period is a bar to proceeding with the grievance.

Section 2–18–1001, MCA (2005) (emphases added).¹ The Board of Personnel Appeals “shall hear grievances of personnel of the department of transportation.” Section 2–18–1002(1), MCA.

¶ 14 The WDEA is set forth in Title 39, Chapter 2, Part 9 of the Montana Code Annotated. Section 39–2–902, MCA, states “[t]his part sets forth certain rights and remedies with respect to wrongful discharge. Except as provided in 39–2–912, this part provides the exclusive remedy for a wrongful discharge from employment.” Accordingly, § 39–2–912, MCA, provides the following exemptions from the WDEA:

This part does not apply to a discharge:

(1) that is subject to any other state or federal statute that provides a procedure or remedy for contesting the dispute. The statutes include those that prohibit discharge for filing complaints, charges, or claims with administrative bodies or that prohibit unlawful discrimination based on race, national origin, sex, age, disability, creed, religion, political belief, color, marital status, and other similar grounds.

(2) of an employee covered by a written collective bargaining agreement or a written contract of employment for a specific term.

¶ 15 The District Court determined that Kershaw, as a MDT employee, was precluded from filing a WDEA claim because the statutory BOPA grievance procedure provided a remedy for his discharge, and was his exclusive remedy. While Kershaw took the position before the District Court that the BOPA grievance procedure was not his exclusive remedy, citing ...