*1 LUECK, CRAIG S. Appellant,
Plaintiff and
SERVICE,
UNITED PARCEL
Respondent.
Defendant and
No. 92-418.
January
1993.
Submitted on Briefs
April
Decided
St.Rep.
See C.J.S. Master Servant Eiselein, Appellant: Lynaugh, For Michael G. Plaintiff and Eakin, Billings. Fitzgerald, Eiselein & Respondent: Steven Lehman and Chris For Defendant and Dietrich, Jr., Hanson, Mangen, Crowley, Haughey, Billings. Toole& Court. Opinion JUSTICE HARRISON delivered District, appeal This an from the Seventh Judicial Dawson is County, presiding. Appellant Craig Dale the Honorable Cox (Lueck) summary judgment an in favor appeals granting from order (UPS) dismissing respondent Parcel his retali- United Service atory discharge complaint. We affirm. part delivery April driver
UPS hired Lueck as time shortly hired. joined He In June Teamsters Union driver, driving full Lueck became a time a tractor-trailer day per “swing nights run” three one week. combination months, twenty driving After schedule for approximately *3 given February Lueck route in from Glendive to Wolf was new driver, seniority who had more regular Point on a schedule. Another Lueck, got run. swing than bid for and Lueck’s only one the Glendive-Wolf Point run discontinued week, May 1,1988, driving. time Around part and Lueck went back to position run took another swing who had taken Lueck’s driver then, however, swing again. By and took over the run with UPS Lueck changed. it been as Lueck swing run followed schedule describes revised p.m. Sunday, Lueck was scheduled began It at 1:00 on when
“bizarre.” 2:00 Billings, returning approximately to at to from Glendive drive Monday Monday evening at he was sched- morning. On 7:00 a.m. on Bismarck, Tues- returning at 8:00 on approximately to to uled drive driving at begin day morning. Wednesday On he was scheduled to evening, and on a.m., approximately 7:00 that returning at 6:45 returning driving at begin p.m., 8:30 Thursday, he was scheduled Friday morning. at 9:00 on lack about complained Lueck
After his first week on this schedule occasions, separate three spoke supervisors to his on sleep. He was unable problems serious and having that he was indicating 9,1988, at the UPS Center reported Lueck to work sleep. June On put leaving and on his uniform in for on the preparation Glendive out,” it, evening’s point “flipped run. At that as he went he describes and home His doing prescribed anti-depressants without run. doctor him Community Hospital admitted to Glendive for treatment over the 11-12, weekend of June He then referred to the Eastern Mental Health outpatient counselling. Montana Center for LaPlante, center, Don a counselor the mental health described “presenting problem” Lueck’s “physical/psychological as a adverse working swing stress reaction to shifts as truck driver for UPS” and recommended continuing anti-depressant medication well as as counselling. family Harkness, Lueck’s physician, Dr. J.E. a Glendive osteopath, again July saw him June 1988 and on when reported he although appeared considerably Lueck im- be proved, unlikely go “it’s will swing he be able back into such a shift as it was a direct causal effect hysterical of his acute depression episodes.” fact, Lueck never returned to work for UPS. July 25,
On Lueck filed a for compensation with the stating Montana Division of Compensation, Workers’ that his “double swing” disrupted work schedule had sleeping eating patterns, leading fatigue, physical weight, ears, severe ringing loss of in the dizziness, headaches, nervousness and insomnia. This claim was August denied UPS’s insurer grounds compensable condition was not under the 1987 Workers’ appealed Act. never denial his claim. disability Lueck also a claim policy filed under his credit insurance in July 1988. completed attending Dr. Harkness required physi- July 20, 1988, cian’s statement describing Lueck’s current condi- — anxiety reaction, tion hysteria, as “acute depression” stress adding type “remark” that Lueck do “cannot of shift switch work again.” occasionally played guitar nights with band on weekend
during spring ill until he became in June. In October 1988 again began he playing with band. On he filed October disability claim benefits under a Union insurance Teamsters policy, any begun but never received benefits because he had *4 in working payments began. the band before In connection with claim, completed physi- Lueck’s Teamsters Union Dr. Harkness 1988, 11, cian’s statement that indicating October was the “date patient able to return to work.” 1988,
In working November UPS learned that Lueck had started again band, receiving through in that he not benefits Union, to approved and that Dr. Harkness had his return Teamsters 11, Kriskovich, manager, Billings UPS work on October 1988. Joe 8,1988, verify to called Lueck at home on December information why explained ask he had for UPS. Lueck and to not returned to work swing Dr. Harkness had that not return to the shift that said he could nothing in files to Kriskovich told Lueck that UPS had its schedule. copy day, Later on the same Lueck took a document this statement. July signed attending physician Dr. on of the statement Harkness indicating type do switch that Lueck “cannot that shift Glendive, delivery in to again,” supervisor to his Kriskovich work day. the next meantime, letter,
In the Kriskovich wrote Lueck a dated December leave, longer him that telling that he was no authorized Sunday, to work December he was scheduled return if did employment that at UPS “could be terminated” he his communicate with UPS return to work on December work, mailgram he return and on December 12 received or manager Billings, telling him telegram from the UPS division Monday, if he shift on regularly did not return to his scheduled employment his name removed from the December would be UPS return to again records. Lueck did not communicate with or work, manager and December 13 the division sent him an official his separation terminating employment. letter UPS ignored messages from during deposition why Asked these UPS, Lueck said: this, they me just could have received
It was inconceivable says persist calling work and I cannot return the shift my doctor checking much as with me back to shift work without so or not I by a to find out whether having or me checked out doctor go am able back to work. complaint District Court
On December filed had discharged him because he filed workers’ alleging that UPS claim, retaliatory discharge provi- in violation of the MCA, Act, 39-71-317(1), § in the sion Workers’ by refusing intentionally inflicted emotional distress that UPS had May Lueck amended his to alter his work schedule 39-71-317(2), action under by adding a new cause of complaint for a give preference him MCA, had failed to alleging years the date of his two that became vacant within position granted District Court requires. as the statute injury,
7 judgment complaint May after oral amended on 14, argument January appeal granting
The issue on is whether the District Court erred summary retaliatory judgment dismissing discharge, preference, and emotional distress claims. We will address each of separately. Lueck’s claims Retaliatory Discharge
The Claim
Lueck contends that the District Court should not have dis retaliatory missed discharge claim because the record contains jury sufficient from discharged facts which could infer that he was for filing Lingle a workers’ He v. Norge claim. relies on Magic (1988), 399, 108 1877, 100 Division Inc. 486 U.S. S.Ct. Chef 410, L.Ed.2d for the proposition employer motivation is a factual question summary and is not appropriate judgment. Lingle, for In however, Supreme summary Court did not decide whether judg ment was appropriate retaliatory discharge Instead, action. it held appellant’s retaliatory discharge remedy that the under the Illinois Workers’ Act not preempted was Section 301(a) of the Labor Management Relations Act of 29 U.S.C. 185(a). holding relevant in Lingle follows: §
[I]f depends the resolution of a upon meaning state-law claim of a agreement, the collective-bargaining application of state law pre-empted ... is principles and federal must labor-law ... be em- ployed to dispute. resolve the
Lingle,
405-406,
486
U.S.
Here, however,
granted summary judgment
the District Court
UPS,
favor of
preempted by
because Lueck’s claims were
§
but because Lueck had
failed
exhaust
remedies available to
him under the
bargaining agreement
collective
between his union
support
argument
summary
and UPS.
judgment
To
its
reason,
properly granted for
relies on
Brinkman
State
224 Mont.
The in UPS and bargaining agreement collective effect between part in provides pertinent the Teamsters Union 1988 that: wholly, right grievances The and is the exclusion process to settle to available, any dependent upon of means the of provisions other this Article. strike, Employer agree
The Union and the that there shall be no lockout, tie-up, using first all picketing, legal proceedings or without settlement, provided Supplement in this .... possible means of a for discharged employee agreement specific steps includes for a to ultimately discharge, in settling grievance follow over his and for provides binding arbitration. Union attempted representative
Lueck to meet with the Teamsters 1988, Billings September representative but the union broke “fruit- appointment. Concluding relying their union was less,” support or its attempt Lueck contact the union enlist to Clearly, he did not discharged he was in December 1988. after bargaining attempt grievance procedure in the collective use legal he action in 1989. agreement before resorted to through grievance gone prescribed Even if Lueck however, fail for lack retaliatory discharge claim would procedure, his 39-71-317, MCA, retaliatory discharge under prove of evidence. To (2) (1) discharged that he was Lueck would have to show filing for a claim him to retaliate discharging UPS’s motive in was its amply Act. UPS documented under the Workers’ work, justified were Lueck which persuade efforts to to return view, point had at From UPS’s of the information it the time. explanation coherent job providing a simply abandoned his without discharged. filing grievance a and without
9 Summary granted genuine judgment appropriately is where no any moving exists party issue as to material fact is entitled 56(c), judgment party as matter law. of Rule M.R.Civ.P. The summary moving judgment has the initial burden of demonstrat ing genuine any that “there is no issue as to fact deemed material in light ofthe substantive movant principles judgment entitle the Farms, of Fleming Fleming (1986), as matter law.” v. 221 Inc. Mont. 1103, 241, 717 P.2d 1105-1106. Once the movant met has burden, party opposing “by present the motion must show facts of a substantial nature that a material fact issue does exist. Mere conclusory speculative or genu statements are insufficient to raise ine Mayer Jewelers, issue of material fact.” v. Bros. Daniel Richard (citations (1986), 397, 399, Inc. 223 Mont. 726 omitted); P.2d 817 Security see First also Bank v. Bozeman Jones 243 Mont. 794 Kenyon County P.2d v. Stillwater Mont. P.2d provided Lueck has no facts to suggest show or even fired him in for filing December July. workers’ provide Lueck must facts that support reasonable inference that UPS’s retaliatory, motive was as mere retaliatory assertions enough motive are defeat motion for judgment. See (9th Kenyon, 745; Associates, P.2d Foster Arcata Inc. Cir. 1985), 772 F.2d implies that because UPS knew Dr. Harkness’ statement on July *7 disability form,
Lueck’s 1988 credit it could have had no reason other than firing retaliation for him. He explain why does not given UPS should have greater weight that statement than Dr. Hark- ness’ later statement Lueck’s application October 1988 for union benefits, work, why which indicated that Lueck able or UPS’s failure to the give greater earlier statement weight is evidence that he was fired in filing retaliation for a compensation workers’ claim.
We correctly hold the District Court concluded that Lueck did genuine not raise a issue of material regarding fact UPS’s motive for terminating employment.
The Claim Preference 39-71-317(2), MCA, Section provides that injured
When capable returning an worker is to work within 2 years from the injury date of and received has a medical release to work, return to given preference the worker must a be over other applicants for comparable position a that becomes if vacant the is and position physical consistent with the worker’s condition vocational abilities. vacancy complaint, alleged Lueck his amended when required by in in March UPS was
occurred Glendive statute UPS, however, notify prefer him for it. Lueck that position was available. (1) grounds this claim on the
The District Court dismissed injured in Lueck was not an worker under definition the Workers’ (2) Act, injured, if he had been would have years injury. after the Lueck apply preference for the within two application. made no such 39-71-119, MCA, “injury” physical
Under an consists of harm to § accident, body by an is an “unexpected and is caused which defined as by is specific or strain” that caused event traumatic incident unusual day during physical work It not include a single single on a or shift. does or The arising mental from emotional mental stress. District or condition correctly statutory not include Court decided that this definition does 9,1988. “adverse stress reaction” of June actually “occupational
Lueck that his condition was an argues 39-72-102, “harm, or disease,” damage in MCA as defined § 39-71-119(1) arising out of or contracted in death as set forth employment by occurring caused events scope course and day goes Although work shift.” statute single more than or stress, arising to exclude conditions from emotional or mental disruption of his argues “physical condition was caused that his is not excluded. sleeping schedule” and therefore eating correctly, however, “injury” the term District Court concluded 39-71-317(2), MCA, statute, does include occu preference § pational disease. reading preference of the contends that the District Court’s narrow, ignoring it the declaration is too and that erred
statute 39-71-105(3), “an which states that MCA public policy system to is return worker objective of the workers’ has suffered work-re- possible soon after the worker to work as objective apply does not argues or that this injury lated disease.” disease, good is no reason return an for there occupational agreed, District Court job his disease. The worker to a that caused only to work- applies statute concluding correctly preference that the injuries. related only law interpretation of the a district court’s
We review *8 (1990), 803 Steer, 245 Mont. Dep’t Inc. v. Revenue correctness. of
11 correctly inter- Court Here, that the District P.2d 601. we conclude condition, and that excluding Lueck’s preference statute preted summary judgment prefer- on Lueck’s entitled to UPS therefore was claim, matter of law. ence as a Distress Claim
The Emotional
to alter his work
as a result of UPS’s refusal
Lueck claims that
termination,
severe
he suffered
and as a result of his
schedule
enough that
His emotional distress was severe
emotional distress.
months.
counselling and was on medication for several
sought
recovering dam
requirements for
adopted
This Court has
are set out in Restate
infliction of emotional distress that
ages for
(N.A.)-Bil
(1965).
(Second)
Bank
j
of Torts 46 comment
First
ment
195, 206,
(1989),
771 P.2d
91. The victim
lingsv. Clark
236 Mont.
conduct resulted either
must
that the defendant’s tortious
show
injury
legally
or in “a substantial
invasion of a
physical or mental
interest,”
significant impact,”
that it “caused a
includ
protected
person could be
ing emotional distress “so severe that no reasonable
Clark,
Accord,
expected to endure it.”
In the characterized emotional distress as an element past we have action; P.2d damages Frigon, rather than a distinct cause of see 63; Security First Bank 234 Mont. Shiplet v. establishing only purpose if considered for the P.2d 247. Even testimony however, demonstrates damages, deposition severity concerning the any genuine issue of material fact absence alleged distress. UPS was entitled of his emotional claim. judgment on this
AFFIRMED. TURNAGE, JUSTICES GRAY
CHIEF JUSTICE McDonough concur. dissenting. HUNT
JUSTICE
I dissent.