MacKay v. State, 02-178.

• Decision Date: 02 October 2003
• Docket Number: No. 02-178.,02-178.
• Parties: Constance MacKAY and Elissa Orcutt, Plaintiffs and Respondents, v. STATE of Montana, Board of Regents, and Montana University System, Defendants and Appellants.
• Court: Montana Supreme Court

79 P.3d 236

2003 MT 274

317 Mont. 467

Constance MacKAY and Elissa Orcutt, Plaintiffs and Respondents, v. STATE of Montana, Board of Regents, and Montana University System, Defendants and Appellants.

No. 02-178.

Supreme Court of Montana.

Submitted on Briefs July 17, 2003.

Decided October 2, 2003.

Rehearing Denied November 13, 2003.

For Appellants: Robert F. James, Roger T. Witt, Ugrin, Alexander, Zadick & Higgins, P.C., Great Falls, Montana.

For Respondents: Elizabeth A. Best, Best Law Offices, P.C., Great Falls, Montana.

Justice JOHN WARNER delivered the Opinion of the Court.

¶ 1 The Montana State University College of Technology in Great Falls (COT) appeals denial of its motion for summary judgment, the District Court's directed verdict for Constance MacKay (MacKay) and Elissa Orcutt (Orcutt), as well as several of the court's evidentiary rulings. We reverse and remand with instructions to dismiss.

¶ 2 We address the following issue on appeal: Did the District Court err in denying COT's motion for summary judgment?

¶ 3 Because we hold that the District Court erred when it failed to grant the COT's motion, it is unnecessary to address the remaining issues presented by the parties.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 4 MacKay and Orcutt are former nursing instructors at the COT. As COT employees, MacKay and Orcutt were covered by the Collective Bargaining Agreement (CBA) between the Montana Board of Regents and COT as the employer and Vocational-Technical Educators of Montana, MFT, AFT, AFL-CIO as the union. Neither MacKay nor Orcutt were members of the union. However, they paid a representation fee to the union as provided for by the terms of the CBA.

¶ 5 In the spring of 1997, Scott Dion (Dion), a student in COT's nursing program, enrolled in practicum rotations taught by Orcutt. The successful completion of these practicum rotations is required for graduation from the nursing program. During his last rotation, Dion failed Orcutt's class and, therefore, did not graduate from the program as scheduled in June 1997. Dion consequently re-enrolled in Orcutt's practicum rotation in December of 1997 and failed a second time. His status as a COT student terminated on December 16, 1997.

¶ 6 It was alleged that during his attendance at COT, Dion intimidated both Orcutt and her supervisor MacKay, COT's Director of Nursing. In 1997, after failing his practicum rotations, Dion had stated that "all hell will break loose" at the COT graduation ceremony and that he would "take care of everyone on the stage." As a result of these perceived threats, COT arranged to have both ceremonies patrolled by plain clothes police. Dion, however, did not attend either graduation. In class, however, a student overheard Dion say that if he ever saw MacKay or Orcutt walking down the street he would run them down in his car. In addition, Dion was seen driving in front of MacKay's home. Five months later, Orcutt obtained a temporary restraining order against Dion. MacKay and Orcutt went to the COT union representative with their fears, however, the union representative did not investigate the matter. They also sought help from the Dean and the Associate Dean of COT. According to MacKay and Orcutt, while the Associate Dean reviewed the matter, she also "pounded her fist on the table" and yelled at them for complaining.

¶ 7 In March 1998, Dion filed a complaint against COT with the Human Rights Commission (HRC) alleging gender discrimination. He claimed that Orcutt and MacKay both made offensive remarks and discriminated against him. In its defense at the HRC hearing, COT made several statements which, when taken as a whole, reflected COT's belief that Dion had a history of belligerence and aggression during his time at COT. Following a hearing on the matter, the HRC concluded that COT had unlawfully discriminated against Dion by subjecting him to sexual intimidation. MacKay and Orcutt claim that COT's poor preparation for the hearing resulted in the unfavorable HRC ruling.

¶ 8 Following the HRC proceeding, Dion continued to intimidate MacKay and Orcutt. Both were alarmed when Dion went to the COT campus to distribute literature about the HRC proceeding in September 1999. Orcutt and MacKay continued their attempts to discuss the situation with their supervisors and COT's legal counsel, however, they believed that their concerns fell on deaf ears. In December 1999, MacKay obtained a restraining order against Dion. Ultimately, Orcutt resigned from COT in December 1999, and MacKay resigned the following month.

¶ 9 In April 2000, MacKay and Orcutt filed a suit against the State of Montana, the Board of Regents and the Montana University System (collectively referred to here as COT). The complaint included the following claims: (1) that COT had negligently failed to provide them a safe working environment; (2) common law constructive discharge; (3) statutory constructive discharge; and (4) breach of the covenant of good faith and fair dealing.

¶ 10 On September 21, 2001, COT moved for summary judgment on all of MacKay and Orcutt's claims based, inter alia, on the ground that the CBA contained a grievance procedure and that they had failed to utilize it. The motion was extensively briefed. A hearing on all the pretrial motions was held in November. After hearing argument, the District Court denied COT's motion. The record contains neither a transcript of the hearing, nor any written order giving the reasons the District Court denied the motion.

¶ 11 A jury trial on the matter then began in November 2001, and lasted for over two weeks. After the close of the evidence, MacKay and Orcutt moved for a directed verdict, contending that they had established liability as a matter of law. The court granted the motion, holding that the Montana Safety Act, §§ 50-71-201(2), 203(4), MCA, was applicable, and that MacKay and Orcutt were entitled to a directed verdict on negligence under Count 1. The court also directed a verdict on Count 2, common law constructive discharge, and Count 4, violation of the covenant of good faith and fair dealing. The District Court further held that in view of the ruling that common law constructive discharge had been established, Count 3, violation of the Montana Wrongful Discharge From Employment Act did not apply. The question of damages was then submitted to the jury. ¶ 12 COT filed this timely appeal from the judgment entered in the District Court.

¶ 13 We hold that the District Court erred in denying COT's motion for summary judgment and that this issue is dispositive.

STANDARD OF REVIEW

¶ 14 The standard of review for a grant of summary judgment is de novo. This Court will apply the same evaluation as the district court based upon Rule 56, M.R.Civ.P. The moving party must establish both the absence of genuine issues of material fact and entitlement to judgment as a matter of law. Gonzales v. Walchuk, 2002 MT 262, ¶ 9, 312 Mont. 240, ¶ 9, 59 P.3d 377, ¶ 9; Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903. Once the moving party has met its burden, the opposing party must present material and substantial evidence, rather than mere conclusory or speculative statements, to raise a genuine issue of material fact. Bruner, 272 Mont. at 264, 900 P.2d at 903. Our standard of review of a question of law is whether the legal conclusions of the trial court are correct. Gonzales, ¶ 9.

DISCUSSION

¶ 15 Did the District Court err in denying COT's motion for summary judgment?

¶ 16 According to COT, the District Court erred in denying its motion for summary judgment given that both MacKay and Orcutt failed to exhaust their remedies under the CBA. COT contends that failure to follow the grievance procedure contained in the CBA bars suit in District Court, and that MacKay and Orcutt should not have been allowed to "sidestep" their CBA remedies.

¶ 17 MacKay and Orcutt, for their part, contend on appeal that: (a) they were not union members and, therefore, were not required to follow the grievance procedure contained in the CBA; (b) even if they were covered by the CBA, the grievance procedure contained therein was not mandatory; (c) the CBA contains no clear waiver of the right to a jury trial; and (d) they sought assistance from the union but none was forthcoming.

¶ 18 It is uncontested that MacKay and Orcutt were not members of the union, but that they paid representation fees as required by the CBA. The terms and conditions of employment, and consequently their claims were, however, subject to the terms of the CBA. See CBA Article 5, 5.11, A. In their complaint they alleged that they were covered by the CBA. In the pre-trial order, signed by counsel and ordered by the court on November 8, 2001, they contended they were covered by the CBA. The pre-trial order superceded the pleadings. Article 2, 2.1, b. of the CBA provides that the bargaining unit consists of all instructional employees of COT employed for the full academic year. Both MacKay and Orcutt had instructional duties. Article 5, 5.11, A., of the CBA provides that employees covered by the terms of the agreement shall pay either union dues or a representation fee. Both paid such fee. It is, to say the least, clear that MacKay and Orcutt were covered by the CBA.

¶ 19 Article 1, 1.1, of the CBA provides that a purpose of the agreement is to establish terms and conditions of employment. Article 4, 4.1, of the CBA provides that the employer shall provide employees with a safe place to work. All of the claims at issue relate to safety issues regarding the employment and constructive discharge of MacKay and Orcutt.

¶ 20 Article 8, 8.1 and 8.2, provide that all grievances are to be subject to said Article 8, entitled "Grievance Procedure and Arbitration;" that a grievance includes a violation of the CBA; and that a grievant is an employee. There can be no doubt that the claims of MacKay and Orcutt are covered by, and that they could have...