*1 by Mary Mallory, SAUCIER, PATRICIA A.
her Limited Guardian, Appellant Plaintiff and v.
MCDONALD’S RESTAURANTS OF MONTANA, corporation; a Montana
INC., McDONALD’S corporation, CORPORATION, a Delaware ALEX KEETON, Appellees, Defendants 1-3, JOHN DOES Defendants. DANo. 06-0244. January
Submitted on Briefs
2007.
February
Decided
JUSTICE COTTER her niece acting guardian limited Mary Mallory (“Mallory”), 1 behalf in the (“Saucier”), suit on Saucier’s filed this A. Saucier Patricia District, County, District Court the Thirteenth Judicial Yellowstone claims asserting against tort claims and discrimination McDonald’s Corporation Montana, (collectively and McDonald’s Restaurants of Inc. “McDonald’s”) and Alex granted summary Keeton. The District Court judgment in favor of except the defendants all claims discrimination claims Alex Mallory appeals. Keeton. We the following consider issues:
¶2 (1) Did the District Court err concluding Saucier’s
claims are barred as matter of law? (2) Did the in concluding District Court err McDonald’s
sufficiently established affirmative defense to Saucier’s discrimination claims? We affirm in part and reverse and remand in part.
FACTUAL AND PROCEDURAL BACKGROUND Saucier in Billings, 9,1977. was born on September Montana record indicates that six months after her birth she became afflicted spinal meningitis which significantly and permanently impaired her brain function. After her parents divorced in she lived at times with her mother Montana, and at times with her father Mississippi. While the record contains few early details about her *3 childhood, it does indicate special that Saucier received education and speech therapy through the public system. school When Saucier age eleven, reached the of her mother contacted the Montana Services, Department Family of apparently seeking assistance in caring for Subsequently, Saucier. under conditions which are not made record, clear in placed Saucier Psychiatric was in the Deaconess Billings. Center in Psychiatric She also time spent at the Rivendell Hospital and a foster Apart home. from her temporary placements institutions, aunt, with these Saucier lived primarily Mallory. with her 1989, shortly In of age December after Saucier had reached the of twelve, the District District, Court of the Thirteenth Judicial Yellowstone County, “seriously found her to mentally ill” and ordered her Psychiatric committed to Rivendell Billings Center pursuant 53-21-127, MCA, Ralph Yaney, Dr. a psychiatrist, § where conducted an report, Yaney assessment her. In his written Dr. determined that Saucier suffered from “severe to moderate mental retardation.” He also “is functioning determined that Saucier at the age of 2 4 emotionally” ability or 3 or and that she “seems to have no right wrong.” Yaney any understand Dr. did not conduct psychological testing, functioning as he deemed Saucier to be “at too Despite assessment.” these any psychological of a to allow
low level Psychiatric conclusions, placement he at the Rivendell stated concluded, Rather, Yaney Dr. appropriate not for Saucier. Center was for and/or hospital trial in a children psychiatric she needed “either a he that Saucier’s ultimately regard, care.” In this noted institutional care, and her aunt no to take her back into their refused parents care Saucier. longer felt that she could for years, Saucier resided several During subsequent Montana, Wyoming, and Idaho. When treatment homes in residential at the Milk River age eighteen, placed Saucier was she reached the time at this The records from her Glasgow, Home in Montana. Group being as assessed staff members institution state that she was emotional, exploitation.” and financial physical, sexual “at risk clear in the which are made Additionally, under circumstances a “Certification record, manager prepared at the home case Disability” Department sent it to the Montana regarding Saucier and that, based on medical This document stated of Motor Vehicles. permanently was considered disabled psychological reports, Saucier 39-30-103, MCA. pursuant to § age reached the that in when Saucier The record indicates Thereafter, to live she was able twenty-one, Billings. returned she Housing Billings apartment provided in an
on her own provided by local YWCA monitoring and assistance Authority, with sponsored a state social-services affiliated with apparently officials Security disability benefits Social program. She received jobs, working such by periodically part-time supplemented this income laundry at hotel. While doing dishes at a restaurant and washing spend the income she received permitted to retain and she was to YWCA officials who disability were directed working, her benefits utilities, rent, and other pay that those funds were used ensured in which various activities Additionally, provided the YWCA bills. Special Olympics. including participated, Saucier to Dr. Debra officials sent Saucier local August apparently evaluation psychological neuropsychologist, Sheppard, Dr. disability program. benefits Security connection with the Social difficulty having was stating that Saucier report rendered a Sheppard *4 who comes in “has ‘trainer’ and that she maintaining employment to do these not able chores as she is her with household help to this Saucier accompanied who The case-worker independently.” repetition an abundance requires that “Saucier disclosed evaluation comprehension.” to establish Sheppard’s report responses Dr. states that “Saucier’s IQ “places
resulted in a Full Scale of 57”which her overall intellectual Extremely range functioning skills of intellectual Low below percentile compared group the first when to a ofher same aged peers.” detail, In further Dr. Sheppard’s report states: IQ 65, Extremely Ms. Saucier earned a Verbal of which is in the She range. performed mildly Low within the impaired range on tasks her measuring memory practical rote for numbers and judgment. impairment Moderate was on assessing observed tasks vocabulary skills, her ability recognize abstract relationships, general fund of impairment information. Severe observed was requiring on a task computational mental skills. IQ
Ms. Saucier’s Extremely Performance of 55 in the Low range. performed She within the impaired range moderate tasks tapping abilities and the separation of essential from detail, coordination, unessential recognition visual-motor spatial relationships and abstract reasoning. impairment Severe was observed on a tapping task in temporal sequencing. abilities As assessment, a result of Sheppard this Dr. concluded that Saucier “will require significant assistance for the foreseeable future.” In October of shortly Sheppard after Dr. rendered her assessment, Saucier, now twenty-four, applied for employment at the McDonald’s restaurant on Central Avenue in Billings. Two friends assisted in filling out the application, and she subsequently was hired manager, restaurant (“Keeton”), Alex Keeton to work as “lobbyperson.” Saucier worked approximately twenty fifteen to hours per week in “auxiliary position,” it, as McDonald’sidentified which entailed cleaning restrooms, the dining hauling area and garbage to the dumpster. initially While she lunch-time shift, worked a Saucier was transferred to a later high shift in the afternoon because school subjected students teasing during her to the lunch hour. Approximately four months after began job Saucier
McDonald’s,she became relationship Keeton, involved a sexual who Saucier, was married. Keeton’s conduct with particularly in regard capacity to his as restaurant manager, and the negligence of therewith, McDonald’s in connection are the underlying subjects litigation. of this Keeton admits that engaged episodes he in secret “hugging
holding” McDonald’s, with Saucier at in a stockroom in the located According Saucier, restaurant’s basement. physical contact in these incidents orgasm. was such Keeton achieved Keeton also *5 he had intercourse with Saucier on two occasions
admits that sexual ended, night occurring the first of these on after the shift Day when Keeton took Valentine’s 2002. These incidents occurred bank, to at and then her deposit Saucier the restaurant’s cash a drove Billings. suggests car” The record company in “the to the outskirts of changed Saucier’s work schedule to facilitate that Keeton have Additionally, vehicle. Keeton these encounters in McDonald’s apartment Saucier her admits that he had sexual intercourse with at Saucier, occurred after According one occasion. to this incident also they deposit following evening a bank shift. had made admits, Keeton he told During relationship, the course of ¶15 Keeton also admits that many Saucier that he loved her “on occasions.” it, mentally he knew put he knew Saucier was disabled. As Keeton Further, complex problems.” to Keeton that she was “unable solve anyone to tell about their sexual admits that he told Saucier not to her that such “couldhurt both relationship, explaining disclosure us.” she like” some of Keeton’s Although Saucier asserts that “didn’t
advances, times, to she has that stop and that she asked him at stated that she did not was “in love” with him. She has also stated she him, yet explaining why she actually love told him she did. In I him, “Because didn’t to Saucier has stated: made this statement just I good comprehend speak. I say. know what else don’t have do.” people do what her, he Keeton telling Saucier that loved repeatedly In addition that, his if that might he told that he wife and
admits leave Further, according to marry like to [Saucier].” he “would happened, because Saucier, that he could “have lot women” Keeton told her is a Mormon. he they of2002, told Saucier that early April March or Keeton 18 In late wife April when his was during time week spend together
could Saucier admits he told Specifically, oftown. Keeton to be out scheduled “mini-honeymoon work, they spend off would if she had the time request a written Saucier submitted Consequently, at his house. week” week, approved Keeton for that entire to be excused from work manager. According to capacity his as the restaurant request Saucier, request. to submit this Keeton directed her airport and off at the 4, 2002, dropped Keeton his wife April On and other packed then clothes apartment, where she to Saucier’s drove then drove Keeton stay at Keeton’s residence. week-long items for a Although in sexual intercourse. they engaged Saucier his house and they he led Saucier to would the entire week spend believe together residence, apartment at his Keeton drove Saucier to her back shortly encounter, they after their sexual and told her that would not relationship. continue their Thereafter, sister, Saucier contacted her older Sandra Sanderson
(“Sanderson”), reported having problems she “was “a guy According [Keeton].” McDonald’s” with named Alex Sanderson, reported [her] Saucier that “he had taken off the [work] schedule, did, concerned, Alex and she was because she needed the money.” Ultimately, Saucier informed Sanderson about the sexual activity between and Keeton. *6 reported
¶21 Sanderson called McDonald’s and Keeton’s conduct. In response, McDonald’s sent Saucier a stating letter that she could return to the restaurant regularly and work her scheduled shifts. When management questioned two members McDonald’s first Saucier, Keeton about his conduct with he they denied that had a thereafter, however, sexual relationship. Shortly Keeton admitted his relationship Saucier, sexual and McDonald’s terminated his employment. above, As her, noted repeatedly
¶22 Keeton told Saucier he loved expressed marry a desire to her. The record suggests this had a significant impact Terry on Saucier. As YWCA case-worker Baptiste testified in deposition, Saucier is “desperate” for attention. Not Dr. surprisingly, Sheppard approximately determined five months after the relationship ended, with Keeton had that Saucier still “appears to be on fixed the belief promises will [Keeton] honor made to her regarding the continuation of a more permanent relationship.” Shortly after legal Keeton’s conduct was exposed, counsel was
obtained for aunt, Saucier and her Mallory, appointed was as her guardian limited for the purpose litigation. of this Pursuant to the Rights Montana Human Act, 49-2-303, MCA, Mallory filed § a in June on Complaint of2002 Saucier’s Rights behalf with the Human Bureau of the Department of Labor and Industry. The Complaint, against which was filed Keeton and Corporation, alleged McDonald’s (1) inter alia that: Keeton discriminated Saucier basis gender her disability also on basis of her by subjecting her sexually a environment; hostile and offensive work (2) McDonald’s Corporation failed to take effective to prevent action discriminatory Keeton’s conduct. In December of conducting after investigation, an concluding Report Rights Investigative Bureau issued its
Human been consensual. Keeton and Saucier had relationship between of discrimination were allegations the Bureau concluded that the Accordingly, the the evidence. by a supported preponderance Malloiy notice that Complaint provided dismissed and the Bureau was claims in district court. the discrimination pursue was entitled of2002, Rights engaged while the Human Bureau was August investigation, Sheppard again psychological Dr. conducted in its consistent with results of Saucier. The results were evaluation earlier, year one before had made Sheppard the assessment Dr. testing Again, demonstrated began working Saucier McDonald’s. IQ Additionally, Dr. Scale of 57.” possesses Saucier “a Full assessment, which “adaptive behavior” Sheppard conducted skills, skills. skills, “daily living” and socialization language measures “level of demonstrated that Saucier’s results of this assessment expected would be equivalent overall is with what adaptive functioning Ultimately, Sheppard concluded Dr. age years, of a child months.” assessment, previous year’s with the in manner consistent report given recommended toward that consideration stating: highly “It is clearly assistance in guardian for Ms. She needs Saucier. appointing her welfare.” making regarding decisions thereafter, for Saucier counsel Shortly September regarding capacity Saucier’s sought Sheppard’s opinion Dr. capacity relationship, sexual consequences appreciate into advances, capacity and her to enter reject sexual welcome or that while Saucier has Sheppard opined Dr. response, contracts. In *7 advances, possesses she reject to out or sexual ability seek consequences attendant “extremely capacity’ appreciate to the limited opined that Saucier was relationship. Sheppard Dr. to sexual of “her of mild mental entering of into contracts because state capable impaired judgment.” practical/social retardation and in the the instant action Mallory filed spring In the of Keeton, as behalf, McDonald’s and Court, against District on Saucier’s 1-3.” only as “John Does employees identified as other McDonald’s well (1) Keeton “made sexual alia, that: alleged, inter Complaint nature” toward conduct of a sexual engaged in offensive advances and McDonald’s, (2) “required Keeton, of Saucier; with the consent her from the him, even removed with and to work late hours [Saucier] sexual schedule, available for that she would be so weekly work (3) Keeton, of with the consent gratification”; his sexual relations and used closing shift and then McDonald’s, to work the required Saucier night “the car to provided deposits McDonald’s of Montana make and, home, the pretext driving [Saucier] under of [her] would then take areas Billings company to remote of in the McDonald’s car and have (4) her”; with the capacity sexual intercourse Saucier “lacks mental to or appreciate consequences relationship” understand the of a sexual any and she “was not able to consent to of the of sexual misconduct (5) Keeton”; McDonald’s a special relationship custody “entered into dining employment [Saucier]” and control over the (6) restaurant; train, failed adequately supervise, McDonald’s and proper precautions safety take for the employees, thereby its allowing Saucier, Keeton to take advantage which he did the (7) scope course and his restaurant; with the Defendants [Saucier] “discriminated on the basis of her sex disability by and creating subjecting sexually and [her] to and hostile (8) environment”; offensive work the Defendants acted with actual malice, “deliberate, reckless, evidenced and intentional (9) disregard high for the probability injury” Saucier; Saucier damages suffered omissions. as a result of the Defendants’ acts and allegations, Pursuant these the Complaint asserted various claims, along of gender with claims disability discrimination, against both Keeton and Finally, McDonald’s. Complaint requested compensatory both and punitive damages. During the course of the litigation, Dr. English, James
neuropsychologist, psychological Saucier, conducted a evaluation of request Among things, McDonald’s. other his report states that during testing Saucier “was overwhelmed that required with tasks any her to repeat and recall form report of verbal material.” The further states “logical grammatical reasoning that Saucier’s skills were generally 12-year-old consistent with the 11- to range.” Based various determined: testing, English forms of Dr. capacity “Her reason generally IQ consistent with her range similar to is, lower of the population. reasoning 6% adult That abilities are not unlike those of an 11- or 12-year-old Despite child.” findings, however, English these Dr. concluded that Saucier has capacity to a stating to consent sexual relationship, she “commands a understanding basic and knowledge base about sex” and “understands physiological consequences of sexual intercourse to the extent that she utilizes birth control.” Keeton and separate McDonald’s secured counsel and each moved
independently summary judgment on Saucier’s tort claims. response, Court separate granting District entered orders *8 McDonald’s,
summary judgment in favor of both Keeton and concluding Saucier’s tort claims are barred Montana Rights Act. Human Additionally, independently Keeton and McDonald’s each moved
¶30 summary gender on Saucier’s discrimination claim and judgment, discrimination then claim. The District Court issued an disability merits in favor of granting summary judgment order on the McDonald’s, denying Keeton’s motion. another order only being the remaining with the causes of action two Subsequently, Keeton, he into a written claims entered entry Mallory whereby stipulated judgment he to an of agreement with Thus, judgment against Court entered in Saucier’s favor. District Mallory agreed he which was upon, Keeton for the amount $500,000.00. Mallory granting the District Court’s orders appeals now in favor of McDonald’s and
summary judgment on Saucier’s claims summary on her Keeton, granting judgment as the order well against McDonald’s. discrimination claims OF REVIEW STANDARD summary orders, judgment novo review of We conduct de to Rule analysis pursuant as does a district court performing the same LaTray, City Havre, Procedure. v. 56 of the Montana Rules Civil 1010, 14, 449, 14, 999 P.2d 14. ¶ 2000 MT ¶ ¶ complete Summary judgment may granted only when there moving party fact and the genuine absence of issues of material 56(c); LaTray, M. R. Civ. P. judgment as a matter law. entitled exist, fact issues of material genuine To determine whether 14. ¶ interrogatories, depositions, answers pleadings, consider “the affidavits, any.” if file, together admissions 56(c). light so, all evidence in the doing we must view M. R. Civ. P. as we non-moving party. LaTray, most favorable to the from the held, inferences that be drawn have all reasonable summary the party opposing be drawn in favor of evidence must LaTray, judgment. initial summary judgment bears the burden seeking The party of material fact. complete genuine issues
establishing absence must “exclude burden, moving party satisfy 14. To LaTray, ¶ material fact” any genuine issue of any as to the existence real doubt is.” Toombs v. Getter showing as to what truth by making “clear (1993). If the Inc., 256 Mont. Trucking, then moving party requirement, satisfies this burden shifts facts, denials, party specific merely to set forth non-moving *9 statements, conclusory or in order to that speculation, establish 56(e); of material fact does indeed exist. M. R. Civ. P. genuine issue LaTray, exist, if no issues of material fact it Finally, genuine ¶ determined actually must then the facts entitle moving whether 56(c). judgment to R. party as matter law. M. Civ. P.
DISCUSSION (1) concluding Did the District Court err in that Saucier’s ¶35 tort claims are barred as a matter of law? that district court concluded Saucier’s tort claims were barred
by exclusivity of the Montana provision Rights Human Act (“MHRA”). In ruling, connection with this we review the salient provisions of MHRA. Code, Title 49 of the Montana which has come to be as the known
MHRA, right declares that the to be free discrimination on the gender disability, basis of one’s or among mental other attributes race, including age, religion, recognized and “is as and declared to be right.” 49-1-102(1), a civil Section MCA. declaration, Pursuant to this prohibits particular the MHRA discrimination types of in various settings education, such as employment, public and accommodations, among 49-2-309, others. Sections 49-2-303 MCA1. respect With the employment setting, the MHRA defines
unlawful discrimination with general terms and listing specific prohibited general terms, acts. In unlawful discrimination in employment is statutorily the practice defined as of making term, condition, in “a privilege distinctions ofemployment” based age, attributes gender, disability, such as or mental when the reasonable of the position require demands do not such distinction. 49-2-303(1)(a), Section designates MCA. The MHRA also particular employment in as unlawfully discriminatory, such as differentiating race, in employees’ compensation refusing based on employ beliefs, an religious individual based on his or her utilizing employment application expresses age limitation as to when occupational limitation is not based on a bona fide qualification. enactment, many portions of Because the MHRA have been revised its since statutory Opinion here all in note MHRA, this are the 2001 references version during period which was in effect time relevant to this case. See Boettcher Fund, 69, 14,154 Guaranty 14,336 ¶ v. Montana 2007 MT 49-2-303(1)(a), statutory (c), MCA. While this definition of Section legislatively has not been employment unlawful discrimination in enactment, in its part expanded altered relevant since has been Chance, 215, 220-23, v. the decision Harrison harassment,” (1990), held that “sexual 203-05 where Court including by discriminatory some forms tortious conduct motivated intent, is a form of sexual discrimination. provisions, the MHRA conjunction with its anti-discrimination remedies, law, for separate legal from tort procedures
establishes definition of conduct which falls within the of unlawful redress Legislature this remedial discrimination. The has mandated legal means redress for unlawful scheme exclusive 49-2-509(7), Consequently, plaintiff MCA. discrimination.2 Section constitute unlawful subjected to acts which a traditional tort action on that not maintain based rather, limited conduct; specific procedures to the plaintiff Harrison, remedies established the MHRA. Mont *10 here, provide at To context for our discussion we now review statutory primary some of the elements this scheme. things, requires this exclusive remedial scheme that Among other brought
allegations of unlawful discrimination must be the complaint Rights Department Bureau of a filed with the Human Industry (“Department”) days after the Labor and within discriminatory occurred or was discovered. practice unlawful 24.8.201(1). (4)(a), MCA; M. 49-2-501(1), Admin. R. Section by the triggers investigation an timely complaint A filed 49-2-504(1)(a), Department MCA. If the Section Department. by allegations supported preponderance determines the are evidence, complaint to resolution of the “attempt it must achieve a the 49-2-504(1)(a), conference, conciliation, by persuasion.” Section unsuccessful, then hold Department If are must MCA. those efforts 49-2-505(1), MCA. complaint. Section hearing an administrative unlawful Department if finds hearing, After occurred, directing fact it must issue an order has in discriminatory Section from such conduct. party accused refrain addition, Department is vested with the 49-2-506(1), MCA. authority to:
(a) future on the accused’s prescribe conditions part legislatively relevant exclusivity altered in provision has not been This its enactment in 1987. since found; type discriminatory practice relevant to the (b) any correct require reasonable measure practice rectify any harm, pecuniary or discriminatory otherwise, discriminated person against; to the
(c) require report compliance. on the manner of 49-2-506(1), damages Section MCA. Punitive are not available. Section 49-2-506(2), MCA.3 Thereafter, Commission may appeal to the Human party Rights
which, hearing, may complaint after administrative dismiss the grant any components Department same of relief which the grant. 49-2-505(4), 49-2-506, 49-2-507, authorized to Sections MCA. party may Then a commence a action civil in district corut. Section 49-2-509(5), However, MCA. type “may civil action not be by a procedures entertained district court other than specified” (7), in the 49-2-509(6), MHRA. Section MCA. a discrimination may claim in district court not jury be tried before a because the provides only MHRA a “contested case hearing” conducted accordance with the Montana Rules of Civil Procedure. Sections 49-2-505,49-2-509, MCA; Brookshire, 273,276-77, Vainio v. 258 Mont. (1993). Additionally, if the district corut does conclude that occurred, may unlawful discrimination has grant any relief other than that Department Rights which the or the Human grant pursuant 49-2-506, Commission are authorized to MCA.4 § 49-2-509(6), (7), Section MCA. Conversely, the Department if initially determines
allegations of unlawful discrimination are not supported evidence, preponderance of the it must dismiss the Section complaint. 49-2-509(3)(c), complainant MCA. The may then seek review with the Rights Commission, Human which may after a civil action commenced in 49-2-509(3)-(5), Again, district court. Section MCA. however, 49-2-505, the case jury, not be tried before a §§ 49-2-509(7), MCA; Vainio, 276-77, 852 P.2d at *11 the authority grant district courts’ relief in such an action no greater authority than the the Department Rights or the Human 49-2-509(6), (7), Commission in the proceedings, administrative § 3 rule, provides exception allowing The MHRA one to this district courts to assess punitive damages repeated housing limited for violations of discrimination law. Section 49-2-510(6), MCA. 4 rule, provides exception allowing The MHRA one award to this district courts to 49-2-509(6), attorney prevailing party. reasonable fees the Section MCA.
42
MCA.5 noted, procedures As these and remedies constitute the exclusive which falls the MHRA’s definition
means of redress for conduct
within
49-2-509(7),
discrimination.
us
brings
Section
MCA. That
of unlawful
in this
question
the
we must answer to resolve the first issue
first
is,
the conduct at issue here falls within the
whether
appeal-that
MHRA’s definition
unlawful “discrimination.”
below,
In
Court determined that
proceedings
District
alleged conduct amounted to “sexual harassment.”
Keeton’s
is a form of sexual discrimination
because “sexual harassment”
204,
Harrison,
221,
by MHRA,
complaint acts, as just provision any bars tort action based on Keeton’s argument, McDonald’s support the District Court concluded. Harrison, County, v. 272 our decisions Bruner Yellowstone cites Ltd., 901, 903 (1995), Arthur v. Pierre 261,263-64,900 P.2d Mont. Mallory 303, 323 453, 100 Conversely, argues MT Mont. 2004 beyond mere harassment” far “sexual that Keeton’s went argument, Mallory support MHRA. In of this prohibited Arthur, Harrison, Bruner, and distinguishes conduct at issue in criminal now that Keeton’s actions amount to assault. We and asserts turn to these cases. 292, (1989), Tire, v. J 295-96 In Romero J & trial, jury it plaintiff argued does not allow for violates that because the MHRA actions, provided jury for in Article right to trial in civil fundamental constitutional rejected argument, II, Montana Constitution. This Court Section of the statutory rights, may specify reasoning Legislature creates that when the new jury Romero, rights Mont. at adjudication than trial. a means of 777 for those other omitted). (citation Notably, however, the Romero decision was P.2d at 295-96 expanded definition decision the MHRA’s rendered the Harrison before always conduct which have been to include some forms of tortious jury course, only plaintiffs by way jury who would seek Of it is not vindicated trial. Vainio, example, proceeds For to district court. where a discrimination claim trial 275-81, 852 598-601, Rights issued where the Human Commission Mont. at P.2d at 258 a harassment, $20,000.00 damages arising compensatory from sexual award of Romero, argued plaintiff that the MHRA appeal, like did in on defendant then jury trial. This Court declined to declare it does not allow for unconstitutional because the relying basis, rendering cursory analysis MHRA unconstitutional on (albeit prior argument the Harrison already rejected had such an which
Romero decision). 276-77, Vainio, Mont. at 852 P.2d at
43
Harrison,
court,
filed
plaintiff
alleging
In
an action in district
employer
subjected
repeated
that her male
had
her to
“unwelcome
“sexually
offers”;
explicit
sexual advances” and
innuendos and
that on
“forcefully
will”;
one
occasion he
kissed her
and that he
”
Harrison,
ultimately
“she
‘put
get
demanded
either
out or
244
out.’
218, 223, 797
202, 205.
at
allegations,
Mont.
P.2d at
Based on these
plaintiff
claims, including battery
asserted various tort
and intentional
Harrison,
223,
infliction
emotional distress.
“alleged
harassment,
acts were sexual
not sexual discrimination.”
Harrison,
at 220,
244 Mont.
797
at
P.2d
203. We held that sexual
harassment
form of sexual
prohibited by
Harrison,
MHRA.
¶49 We
observed that sexual harassment
can be
framed
terms
theories,
of numerous tort
stated
will
Court
not condone
“such
[by
recharacterization
tort terminology] of what
is at heart a
Harrison,
sexual
discrimination claim.”
Office filed an action in alleging district court that she had been subjected county to sexual harassment a male deputy attorney, and Bruner, asserting a tort claim negligent retention.6 272 Mont. at plaintiff brought battery, a claim for but later conceded to dismissal of during judgment proceedings. summary that claim issue what we
as a waitress co-workers, Kennedy of alleging court that one her male James district Arthur, her 12. (“Kennedy”), ways. had harassed in various ¶¶ alleged Kennedy that had made Specifically, inappropriate she body comments her regarding personal relationship her her and to dining her about the room while boyfriend; with her that he followed by her movement on occasion worked; she that he had restricted bar; and that he cornering dining-room in the office or behind her Arthur, in one instance. 25. her the buttocks” “slapped ¶¶ similarly pursued her Kennedy that had Additionally, alleged Arthur things, following her around among other away by, while from work Arthur, bring gifts. 8-9. job at her second appearing ¶¶ town and following causes of allegations, Arthur asserted the Based on these (2) “(1) work, negligent place a safe provide action: failure (3) supervision Kennedy, Kennedy, negligent retention (5) (4) distress, infliction negligent emotional intentional infliction of (6) the Montana distress, sexual harassment under and emotional Arthur, Rights ¶ Human Act.” claims, attempted distinguish Arthur In of her tort support falls within MHRA’s from the of conduct that type acts so, Arthur, doing 18. In she
definition of sexual discrimination. ¶ and distinct was “different-in-kind argued Kennedy’s that conduct,” injuries that she “suffered discriminatory sexually from stemming degree typically than those greater damages Arthur, argued that 18. Arthur also harassment.” workplace ¶ sexual harassment, escalating beyond mere sexual “Kennedy’s actions went assault, intimidation.” stalking and as sexual to criminal conduct such
45 Arthur, 18, 25. ¶¶ response, Bruner, approach adhered to our in Harrison and
examining allegations the nature of factual Arthur’s to determine Arthur, complaint. doing so, 25-26. In we referred ¶¶ to language indicating from Harrison can sexual harassment advances, requests favors, consist unwelcome sexual for sexual Arthur, other or physical (citing verbal conduct of a sexual nature. 25¶ 203). Harrison, basis, Mont. at 797 P.2d at On that Kennedy’s alleged determined that acts amounted to verbal and physical conduct of a sexual nature which constitutes sexual prohibited by Arthur, harassment the MHRA. ¶ argument Kennedy’s ¶54 As acts constituted “criminal conduct,” sexually we reasoned: “the harassing fact conduct also may constitute criminal conduct does necessarily not mean that it is Arthur, sexual discrimination as contemplated the MHRA.” support rationale, 25. In of this we noted that this Court found the kissing forcible Harrison to be “sexual harassment” contemplated the MHRA though even could have been deemed sexual assault. 205). Arthur, (citing Harrison, at We also noted:
much of alleges support the conduct she of her assertion that Kennedy’s conduct was criminal in nature occurred after her [hotel] with the Kennedy’s ended. This includes *14 home, appearing driving by outside her night her home at and following her around town while personal she attended to and activities, being work-related as well as violating arrested for restraining several orders she obtained after she left the [hotel’s] employ.
Arthur, 26. ¶ Upon analysis, we alleged discriminatory
¶55 concluded that the conduct which occurred in the workplace-as opposed occurring to that after Arthur left her employment-did not constitute more than “mere sexual prohibited by Arthur, Thus, harassment” the MHRA. 26. ¶ exclusivity because the MHRA rule mandates that for recourse “sexual may harassment” only pursued through the MHRA remedial scheme, was pursuing Arthur, Arthur barred from tort claims. 27. ¶ comprehensive While these cases do not provide ¶56 a definition by “sexual harassment” prohibited MHRA’s anti-discrimination provisions, they provide general principles do identifying which aid in First, the types properly of conduct characterized such. as “sexual conduct, harassment” includes some tortious such as “unwelcome 46 a physical
sexual
and some forms of “verbal or
conduct of
advances”
Arthur,
Second,
sexual nature.”
“sexual harassment”
be considered criminal
in nature.
includes some conduct
Arthur,
Third,
consistently
we have
looked to the nature of the
plaintiff,
opposed
as
to the manner in which the
alleged
acts
determine
framed,
“gravamen”
complaint.
of the
complaint is
of the manner in
“gravamen”
irrespective
Our
determination is made
complaint
litigants
we realize that
can
which the
is framed because
re-characterize
frequently employ
terminology
improperly
Harrison, 244 Mont.
is at heart a sexual discrimination claim.”
“what
Arthur,
Similarly,
recognize
205;
at
140-41, 149-50, (plaintiffs 1005-06 court, alleging disparate district treatment pursued a tort action in claim); Arthur, 9- school; a discrimination ¶¶ we concluded was pursuant to MHRA a discrimination claim (plaintiff first filed court). procedures, then filed a tort action district therefore, fact precedent suggests, foregoing As subject first characterizes the claimant conclusively what
pursues MHRA action does not itself establish analysis has actually gravamen is-the been of the claim ultimately question which the of the court before province presented. the case mind, we now turn to principles the foregoing With
before us. First, matters. outset, preliminary At the address several *15 $500,000.00 judgment the consent regarding contention
address a “hold that Mallory argues this Court should Keeton. against judgment for the McDonald’s, responsible employer, as Keeton’s do against entered Keeton.” We decline to so because the District Court yet any has not reached this issue and therefore has not taken action Arguments Court affirm or reverse. on this are which this could issue presented to properly the District Court in the first instance. Accordingly, argument we will not address further. this Second, Mallory appeal McDonald’s asserts that has failed to the District granting summary judgment Court’s order Keeton argument tort reject Mallory Saucier’s claims. We because filed Notice Appeal expressly appeals of which states that she the District granting summary partial judgment Court’s order of favor Keeton.
Moreover, of Appeal, Mallory’s accordance her Notice arguments in her briefing substantively to this Court address Saucier’s Keeton, tort they claims both McDonald’s and are arguments same presented to District Court. Third, we note that Complaint Mallory filed in District Court claims, “assault,”
asserted several including tort the tort while also referring to battery.” Keeton’s conduct a “sexual assault tort of assault is distinct of battery. tort As provided in Instructions, Montana Pattern which are modeled after (Second) Torts, Restatement battery is “an intentional by person contact one person with the of another or which is harmful offensive,” while the tort is “any of assault intentional threat or harmful offensive contact with another force under contact, circumstances which create a well fear founded of such coupled apparent ability with the present carry out the threat.” added) (Second) 9.01 (citing M.P.I.2d (emphasis Restatement Torts (1965)). Mallory 13-34 any has or cited §§ evidence that Keeton ever communicated a threat of harmful or offensive contact that Saucier was ever put However, fear of such contact. allegations and support battery. evidence do a claim of although It is well established harmful or offensive contact battery, constitute a effective consent to such contact will bar (Second) 892A(1). recovery However, in tort. Restatement Torts § effective, the consent be must rendered one who has the capacity consent-i.e., capability nature, to appreciate extent, probable consequences of the conduct. Restatement *16 892A(2) (Second) Here, Mallory alleged cmt. b.7 that Keeton’s Torts § of harmful, intentional, offensive, and
sexual conduct with Saucier was
disability
effectively consenting
her from
precluded
and that Saucier’s
allegation
this
analysis
appeal,
of our
purposes
to it.
for
battery.
tort of
will be considered as a claim for the
action,
Complaint
for
tort causes of
As
Saucier’s additional
negligent supervision,
provide
failure to
a safe
asserted claims
(custodial)
fiduciary
duty,” negligent and
workplace, “breach of
distress,
“respondeat superior.”
and
intentional
infliction of emotional
conceded,
Mallory
three claims are directed at
As
has
the first
(in
McDonald’s,
remaining
The
tort claims
addition to
and not Keeton.
of
distress
negligent
are
and intentional
infliction
emotional
battery)
superior
note that
“respondeat superior.”
respondeat
We
action; rather,
it is a
tort cause of
free-standing
independent
consequences
person’s
of
law
which the
of one
agency
doctrine
of
(Third)
Restatement
person.
actions
be attributed to another
(2006);
Mining
v.
Introductory
Kornec Mike Horse
Agency 2.01
Note
§
(1947); Vainio,
Co.,
7-8, 180
252, 256
Milling
&
(1993). Thus,
“claim” is not
at
Saucier,9 drawing favor, all reasonable inferences in we carry conclude that McDonald’s has to establishing failed its burden of complete a absence of material regarding factual issues Saucier’s ability effectively to Specifically, consent. jury conclude a could reasonably find that Saucier’s disability mental precluded her from effectively consenting to sexual supervisor conduct with a in an employment setting, particularly supervisor authority with over course, work schedule. contrary Of the upon by evidence relied ultimately McDonald’s could persuasive jury. to a The is that point purposes of summary judgment analysis, is a genuine there issue regarding of material fact ability effectively consent, Saucier’s to summary precluding disposition of this issue. it Next, is our task to determine what the of Saucier’s actually Again, construing
claim favor, is. the facts in Saucier’s as stage must do at this of proceedings, proposition we start with the complained grave of non-consensual sex. nature of this it apart anything conduct sets far we have previously held to constitute “sexual harassment” under MHRA. spectrum of While conduct noted above covers a range broad 8 express opinion any previous We no as to whether evidence of sexual relationship would be admissible at trial. recognize identify We it is somewhat ludicrous evidence Saucier’s disability evidence is favorable on Saucier’s behalf. terminology only as “favorable” her. We use this here in the sense that such respect guardian’s legal to her limited with effort obtain redress
acts, conduct, to hold that those acts including even some assaultive sex footing profoundly on the same as non-consensual would stand Thus, we conclude that grievous minimize the nature of such conduct. previous provides in our no basis for comparison to the conduct cases falls the definition of “sexual holding that non-consensual sex within anti-discrimination contemplated by harassment” MHRA’s provisions. connection, disparity criminal In this we note between the the criminal for “discrimination” under the MHRA and
penalties consent. The MHRA penalties for sexual intercourse without designates a misdemeanor unlawful discrimination more than six months punishable criminal offense no 49-2-601, imprisonment and a fine of no more than Section $500.00. felony knowingly it Conversely, under Title 45 is a offense to MCA. renders person have intercourse whose mental condition sexual with 45-5-501(1)(b)(i), 45-5-503(1), or her ofconsent. Sections incapable him conduct, law 45-2-101(39), Reflecting gravity of such our MCA. years imprisonment of no than for this requires punishment less two offense, and maximum fine up imprisonment to a life term $50,000.00. faced here 45-5-503(2), MCA. While we are not Section contrast between prosecution, a criminal nonetheless the stark significant underscores the distinction between statutory penalties categories of offense. two statutory precedent or our put, nothing scheme Simply sex the MHRA’s supports the notion that non-consensual falls within such, apparent that we have As it is would definition discrimination. in order to hold that drastically expand that definition would have the conduct at issue here. While McDonald’s encompasses all, undertaking. are, after *18 so, support do it such an We us fails to in by viewing required to the definition discrimination construe Branam, in State v. 2006 statutory the scheme which it resides. light of 635, 457, 15, P.3d 15. McDonald’s 300, 15, 334 Mont. ¶ MT a revision of the definition no as to how such explanation offers More the rest of the MHRA.10 would be consistent with discrimination questions cursory statutory reveals that serious review of the scheme Even that, the initial regard. example, the mandates as in For a MHRA could arise this discrimination, supported addressing properly claim of unlawful requirement officials with the by way in Industry attempt issue Department to resolve the of Labor and must 49-2-504(1)(a), conciliation, “conference, persuasion.” MCA. Section difficulty Legislature imagining say, the envisioned we have Suffice it addressing “conference, conciliation, legitimate persuasion” means of sex. non-consensual authority justify importantly, legal McDonald’s offers no that would fact, In judicial statutory interference the scheme. such in expanding the MHRA’s definition of discrimination this manner directly governing basic precepts would violate one the most long-standing Court’s function-the mandate that we must not insert short, Legislature 1-2-101, has omitted. Section MCA. In what no there is basis this Court to insert such as sex non-consensual into MHRA’s definition of discrimination in employment. summary, goes beyond In we conclude that non-consensual sex
any conception reasonable of “sexual harassment” and falls outside the in employment. Simply put, MHRA’s definition of “discrimination” allegations of non-consensual sex sound in not tort and in discrimination. Next, concluding we address whether the in District Court erred Mallory’s exclusivity tort claims were barred under the provision Here, initially brought
of the MHRA. Mallory this claim as a However, discrimination action and thus filed Department. it with the we have determined that her claim sounds in tort and not The question Mallory may discrimination. whether therefore proceed with a tort action in district court presents conundrum general terms, which we will specific address and then hopes giving practitioner some instruction to the through who must wade this forum mine field. general terms, question In presented is If this:
Department concludes there no cognizable claim, discrimination or if the reviewing court determines that the theof case before is, rather, discrimination, it is not tort litigant but then pursue option? the other question qualified yes. answer to this is a complaint Provided alternative claim or is filed within the applicable law, including limitations, provided statute of discrimination claim does not sound the tort claim in discrimination, the alternative case barred. Our recent decision v. Center, in Vettel-Becker Deaconess Medical 2008 MT 1034 is instructive. Vettel-Becker, pursued the plaintiff discharged claim under the MHRA after he was Vettel-Becker, employment by 2,23. However, only Deaconess. a few ¶¶ days later, complaint alleging he filed a in district court that his Vettel-Becker, discharge good Ultimately, was not for cause. ¶¶ Department Vettel-Becker, dismissed his claim. 23. Vettel- ¶¶ *19 discharge wrongful his claim in district proceeded Becker then with Vettel-Becker, moved for and was awarded court. 23. Deaconess ¶¶ things, summary concluding, among other that the judgment, the court remedy discharge provided the exclusive for his MHRA in support claims because he raised the same facts discrimination Vettel-Becker, appealed 24. Vettel-Becker dismissal both claims. ¶ and remanded for a wrongful discharge of his claim and we reversed Vettel-Becker, on merits. 25. trial ¶ us, that, to the case we said in Vettel-Becker Pertinent before disallowed, claim may pursue claimant where a discrimination (in Vettel-Becker, sought in the relief was under relief the district court (‘WDEA”)), Wrongful Discharge Employment “provided Act allegations of premised upon ‘underlying claim is ” 18). Arthur, Vettel-Becker, 37 (quoting . ¶ ¶ . . discrimination.’ grounded in claim was not Concluding that Vettel-Becker’s WDEA discrimination, granting in held that the district court erred we exclusivity. grounds ofMHRA summary judgment to Deaconess on the true: If Vettel-Becker, 37, Arguably, the converse would ¶¶ court, tort, in court sounding filed in district claim is discrimination, in then a claim grounded concludes that the claim barred, discrimination not be Department before the would for complies that the claimant statute provided of course MHRA governs limitations which actions. Mallory While applies rationale in here. Our Vettel-Becker sought in Department, for she also
sought relief for conduct. When the in the District Court tortious subsequently relief cognizable claim Bureau concluded she did not state Rights Human discrimination, pursue free relief for the Mallory was then for court, long as her conduct in district defendants’ tortious allegations grounded underlying upon there was not claim above, here Vettel-Becker, As conclude discrimination. grounded not sex is Mallory’s claim of non-consensual Therefore, is not barred from discrimination, in tort. she but Vettel-Becker, contrary As we noted in proceeding in district court. of any result in a denial circumstances would conclusion under such Vettel-Becker, (citing Mallory’s dispute. procedure remedy 154, 157, Co., Mining v. Schultz Stillwater (1996)). District Court erred Accordingly, hold that the 487-88 against Keeton and McDonald’s tort claims concluding that Saucier’s exclusivity provision. by the MHRA’s are barred (2) concluding err Did the District Court sufficiently McDonald’s established an affirmative defense Saucier’s discrimination claims? above, asserted, claims, As noted in addition to the tort Mallory behalf, gender disability
on Saucier’s
claims of
discrimination and
*20
against
both Keeton and McDonald’s. The District
summary
claims,
Court denied Keeton’s motion for
on these
judgment
stipulated
entry
judgment
and he thereafter
the
in Saucier’s
However,
favor.
the
granted
summary
court
McDonald’s motion for
judgment
so,
on
doing
Saucier’s discrimination claims. In
the court
relied on federal case law and concluded that McDonald’s had
sufficiently
established
defense
taking
affirmative
reasonable
steps
preventive and remedial
to address
the
discrimination at
restaurant. Given our resolution of the
issue
appeal,
first
in this
reasoning.
need not
the
held,
address
court’s
As we
this
have
Court
will affirm a
result, regardless
district court which reaches the correct
reasoning.
of Bovey,
46,
of the district court’s
9,
Estate
2006 MT
¶
254, 9,
510,
9.
¶
above,
As noted
in determining
plaintiff
whether a
has
¶79
stated
or
claim,
claim a discrimination
gravamen
look
of the
complaint.
e.g. Harrison,
See
¶80 beyond the type discriminatory actions contemplated by the MHRA. Thus, Mallory may maintain tort claims on Saucier’s behalf in However, given provision MHRA, District Court. the exclusivity ofthe Mallory simultaneously proceed not in the District Court with discrimination claim on on allegations. Saucier’s behalf based the same basis, then, On this we conclude the District Court summary appropriately granted judgment on Saucier’s discrimination result, claims. Because court reached the correct we need not application precedent respect address its of federal to merits of Bovey, of Saucier’s discrimination claims. Estate
CONCLUSION summary judgment order granting We affirm the District Court’s District on discrimination claims. We reverse the Court’s Saucier’s on tort claims granting summary judgment orders Saucier’s McDonald’s, proceedings. further both Keeton and and we remand for GRAY, NELSON, WARNER, JUSTICE JUSTICES CHIEF LEAPHART, RICE concur. MORRIS anD NELSON concurs.
JUSTICE However, existing law, Opinion. I in the Court’s Based on concur problems created in separately I write to note the which Court (1990). Chance, 215, 797 P.2d Harrison v. 244 Mont. always The MHRA has defined unlawful discrimination making compensation “in practice as the distinctions condition, term, employment” based various privilege
or in a disability and mental when the reasonable gender attributes such require do such distinction. Section position demands of the decision, however, 49-2-303(1)(a), expanded this MCA. The Harrison falls within the by holding definition that “sexual harassment” Harrison, discrimination.” definition of “sexual *21 so, doing Court reasoned: “When sexual P.2d at 204. solely gender, employee is directed at an because harassment fundamentally working different faced environment employee is by gender. That difference employee opposite from that an of the faced Harrison, 244 employment.” Mont. constitutes sexual discrimination (internal omitted). 221, at P.2d at 204 citation 797 the definition of “sexual discrimination” Having expanded thus battery harassment,” categorized the tortious “sexual we then include 220-23, Harrison, 244 Mont. at as “sexual harassment.” issue “forcefully employer (among things, plaintiffs other P.2d at 203-05 will”). forms of tortious Consequently, some kissed by prohibited fall within the definition "discrimination” conduct now 303, 25, Ltd., 2004 MT v. Pierre example, ¶ the MHRA. For Arthur 25, co-worker 453, 25,100 987, plaintiffs where the ¶ ¶ buttocks,” things, applied other among on the “slapped her issue was “sexual conclude that the conduct at Harrison by contemplated the MHRA. harassment” problematic expanded decision is because The Harrison drastically and without statutory “discrimination” definition observes, have Opinion our here as precision. Consequently, alleges plaintiff analyze test to claims where “gravamen” utilized a 47-56. discriminatory. Opinion, ¶¶ both tortious and conduct that is However, Harrison’s discrimination, “gravamen” like notion of our approach remarkably ambiguous, is as we been have unable to articulate clear standards may which district courts determine complaint “gravamen” whether a or sounds discrimination tort. The of a complaint essentially is determined an “I know it I when see it” Ohio, See Jacobellis v. 378 U.S. analysis. 184, 197, type 84 S. Ct. (1964) 1676, 1683 J., (Stewart, concurring) (suggesting that it impossible intelligible to formulate of obscenity, definition but it”). famously “I know it stating when I see course, Of these issues are not particularly troubling in the
present case because criminal conduct such sex as non-consensual clearly not a contemplated form “sexual harassment” by the MHRA’s However, provisions.1 anti-discrimination in other scenarios that are Harrison’s cut, not as clear vague expansive notion discrimination, together ambiguity “gravamen” with the in our approach, spawn litigation. will And how will district courts know what the of a complaint where the conduct is not egregious as here, non-consensual sex alleged but it is more egregious than the forceful kissing alleged in Harrison slapping alleged in Arthur? Even problematic more are consequences “gravamen” of the
test in notes, some instances. As our Opinion the MHRA procedures do jury allow for a trial in 49-2-505, discrimination claims. Sections 49-2-509, MCA. Because Harrison establishes some tortious conduct falls within the “discrimination,” MHRA’s definition of because MHRA procedures are the exclusive means of redress unlawful in employment, some individuals are now jury denied a trial as a means to However, redress tortious conduct. right jury trial in civil suits is a right constitutional which “is Const, secured to all and II, shall remain inviolate.” Mont. art. § Moreover, right by jury to trial is a constitutional fundamental right and highest therefore merits the of protection by level this Court. v. Co., Kloss Edward D. Jones & 52, MT ¶ where Harrison’s broad in those instances *22 definition operates of “discrimination” to deprive an individual of a jury redressing conduct, trial in our clearly tortious decision conflicts Opinion indicates, As our we do not hold that Saucier in fact unable to was effectively allegation standard of Rather, accept consent to the sexual relations with Keeton. analysis, only purposes summary judgment applicable of on the based 32-34, Opinion, ¶¶ review. 65-68. plain language of the Montana Constitution.
with
Moreover,
respect
a
with
to the form
paradox
Harrison creates
noted,
similarly
As
situated individuals.
legal
applicable
relief
subjected
types
to some
employee
mandates that
Harrison
MHRA
claim.
conduct
is limited to an
discrimination
tortious
However,
Harrison,
because
220-23,
jury in discrimination claims does not violate trial However, guaranteed the Montana Constitution. we reached jury by expanded the definition conclusion before Harrison traditionally has “discrimination” to include tortious which including trial by way procedures, remedied of common-law been the MHRA in this dramatically changed Harrison so by jury. Because contemplated statutory decision way, previously-decided Romero MHRA it exists very which was different than the as scheme by it is clear that this today-i.e., judicially modified Harrison. validity light eventually have to address the Harrison Court will right to deprives litigants it of their constitutional of the fact that jury trial in some instances. fact Additionally, eventually to address the we will have premise. holding Our there-that
Romero based on a false was does against jury trial in discrimination claims prohibition MHRA’s based on the right jury trial-was not violate the constitutional rights, as statutory new Legislature that when the creates rationale adjudication for those MHRA, may a means of specify Romero, jury. 238 Mont. at other than trial rights omitted). (citation free from However, to be right 295-96 statutory created right was not a new a fundamental fact, right became Legislature. adopted when we our state guarantee in 1972 constitutional firm, any person, the state nor Constitution, provides: “Neither which person in the any shall discriminate corporation, or institution sex, race, color, rights on account of political exercise his civil *23 57 culture, Const, origin condition, political religious social or or or ideas.”2 Mont. II,
art. 4.§ Finally, unnecessary our “gravamen” approach has created vague procedural provided only guidance concerns. Because we have determining gravamen a complaint, plaintiffs the often have difficulty determining whether to file a tort court claim district or a Department Industry. discrimination claim with the of Labor and Indeed, it appears initially this case that Saucier’s counsel perceived claim; however, this a as in briefing, as tort disclosed counsel nonetheless filed the MHRA action “out of an abundance precaution.” problem This is further complicated by the MHRA’s 180-day filing statute limitations for a discrimination claim. Section 49-2-501(1), (4)(a), is, incorrectly MCA. That a determines plaintiff if gravamen tort, that the of his or her claim is to a and thus fails file days, discrimination plaintiff procedurally action within 180 the will be bringing barred from the if claim discrimination action even the adjudicated later having gravamen course, as a of discrimination. Of it makes no sense to a penalize plaintiff with such forfeiture where he she simply “gravamen” the mis-applies analysis, because we have provide failed to adequate guidance undertaking. for that Although plaintiff may to overcome able bar procedural (see through litigation Harrison, further 244 Mont. at P.2d at 208, discussing equitable tolling of MHRA’s statute of limitations plaintiff where a in good pursued claim), has faith a we should approve simpler is, means to resolve this issue preemptively-that long as we perpetuate “gravamen” approach. For example, where claim arguably discrimination, sounds in either tort or the plaintiff should concurrently be allowed to file a tort claim in district court and claim the Department Industry. discrimination of Labor and If limit, claim applicable 180-day is filed within the the MHRA proceedings stayed upon request by should then be plaintiff judicial while he or she seeks determination as gravamen of the claim. In this way, discrimination claim would be preserved gravamen plaintiff’s ultimately if the adjudged claim is Moreover, tort, be discrimination. if of the claim is filing stay Department dual and the would allow to avoid unnecessary proceedings, thereby preserving MHRA state resources. opportunity pursue employment right isa fundamental civil under Article II, State, 287,299,911 Section of the Montana Constitution. Wadsworth v. (1996). 1165,1172 dual-filing approach in cases previously approved have a similar
We law is the initially applicable known whether where it v. Act. Tonack Wrongful Discharge Employment MHRA or the 247, 255, 326, 331 Billings, Montana Bank (1993) filing a MHRA action and a WDEA (allowing for concurrent one action, recovery may only be under noting while obtained other)3. theory or the plaguing critical to note that these issues anti-discrimination It is redefining of the term “discrimination”-are
law-particularly our problems. obligated up While we are to own judicially created *24 it is recognize some I point, and these issues at fact resolve Harrison and its controlling as in this progeny appropriate to treat case. legal fiction that sexual said, longer I no adhere to the That can
¶95 The in are “discrimination.” place or the work assaults batteries is is that which legal-definition discrimination common sense-and MCA, Quite simply, sex 49-2-303(1)(a), referred to above. forth § set advancement, making jobs, pay, includes distinctions gender, based on instead conditions or terms and other And, it without unique requirement job. goes of the of on merit or some is directed workplace saying, that most sexual discrimination by men. against women if a male However, jurisprudence, Montana’s presently, under slaps or forcibly employee kisses female pizza parlor
customer of a least, for, at in tort buttocks, can sue the customer employee her male under Harrison and its Yet, if the battery. progeny, civil forcibly slaps kisses employee of the same supervisor the result buttocks, simply workplace is “discrimination”-with remedies, rights and fundamental civil employee forfeits jury trial. in tort and including access to the courts Opinion, 39-43. ¶¶ best, is, illogical. judicially-created legerdemain This sort of relationship respect adopted procedure with to the a similar have also We Ins., negligence v. Farmers and faith claims. In Fode claims bad between 287,719 (1986), 414,417 faith claim insurer held that because a bad concluded, the underlying negligence is prosecuted claim after the cannot be plaintiff claim, until concurrently prosecuting negligence may file the bad faith claim while However, applicable to bad faith claims. limitations in order to toll the statute of discovery proceedings suspended and no faith action must be held that the bad
we be conducted Fode, Mont. at underlying negligence prosecuted. is claim while the here, to be 287, stayed Similarly claim should allow the discrimination determination 719 P.2d at gravamen of the claim. judicial of the plaintiff seeks while Worse, characterizing workplace sexual assaults or batteries of women “discrimination,” employee’s trivializes the conduct and the female rights dignity privacy fundamental to human and individual guaranteed II, under Article respectively, Sections and Montana’s Constitution. Refusing acknowledge name this and sort of personal degradation violation and for what it is-a criminal offense paternalistic civil tort-perpetuates view that sort just “boys behavior boys” horseplay. is will be workplace Harrison and its progeny marginalize female employees relegate them to the Moreover, status of second-class citizens. this jurisprudence attempts encourage antithetical this Court’s gender equity fairness. A sexual or battery precisely that; assault it is not discrimination. Application of the test to such conduct is not the Indeed,
solution. part problem. it is of the Harrison line cases overruled, should be and I look forward the case when that issue is raised, argued briefed and on appeal. caveat, With that I concur.
JUSTICE joins COTTER in the Concurrence JUSTICE NELSON.