11/28/2023
DA 23-0094 Case Number: DA 23-0094
IN THE SUPREME COURT OF THE STATE OF MONTANA
2023 MT 232N
CINDY FUSON,
Plaintiff and Appellant,
v.
CHS INC., and DOES 1-5,
Defendants and Appellees.
APPEAL FROM: District Court of the Ninth Judicial District, In and For the County of Toole, Cause No. DV-18-044 Honorable Robert G. Olson, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Torrance L. Coburn, Tipp Coburn & Associates PC, Missoula, Montana
For Appellee:
John G. Crist, Crist, Krogh, Alke & Nord, PLLC, Billings, Montana
Submitted on Briefs: October 4, 2023
Decided: November 28, 2023
Filed: 'eir--6---f __________________________________________ Clerk Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Cindy Fuson appeals an adverse ruling from the Ninth Judicial District Court, Toole
County, on discrimination, wrongful discharge, and implied covenant of good faith and fair
dealing claims arising out of her termination from CHS Inc. (CHS). We affirm.
¶3 Fuson was a driver and gauger for CHS. A commercial driver’s license (CDL) was
required for her to carry out her job duties.
¶4 Fuson was placed on worker’s compensation following an on-the-job injury in
August 2016. She performed either light-duty tasks or did not work between her date of
injury and a subsequent surgery in November 2016. Her last day of work was November
2, 2016.
¶5 Fuson was hospitalized at Warm Springs State Hospital between November 24,
2016, and December 12, 2016. She requested and received short-term disability from CHS
for mental health issues between December 14, 2016, and June 15, 2017. CHS mailed
paperwork for a long-term disability application to Fuson in April 2017, which she did not
immediately return.
2 ¶6 On June 26, 2017, Christopher Rost, PA-C, denied Fuson medical certification for
her CDL, stating “[e]xaminer feels she is not suitable at this time to safely operate CMV
[commercial motor vehicle]. Close psychiatric follow up is needed.” Global Safety
Network, an independent medical review agency that determines whether drivers are
medically qualified to drive a commercial vehicle, reviewed Rost’s report and sent CHS a
letter stating Fuson was “[n]ot qualified due to mental health episodes without follow up.”
A CHS supervisor encouraged Fuson to seek a second opinion.
¶7 On July 5, 2017, Fuson received a letter from CHS notifying her that it had not
received her long-term disability application and that it was placing her on a “temporary
unpaid leave of absence which [would] end no later than July 17, 2017.” CHS advised
Fuson that she was not medically qualified to drive, and that it was “imperative that
outstanding employment related items be resolved no later than July 17, 2017,” otherwise
it would “re-evaluate [her] on-going status as an employee of CHS.”
¶8 Fuson submitted paperwork for long-term disability on July 17, 2017, through
MetLife, which serviced long-term disability claims for CHS. On July 18, 2017, Fuson
emailed her supervisor, stating that she “got a DOT physical,” and asking for contact
information for the medical review officer. In response, Fuson’s supervisor asked her to
send the DOT physical report to her, which she would pass along to the medical review
officer. Fuson never sent the report to her supervisor.
¶9 Fuson renewed her Montana CDL on September 12, 2017, and notified her
supervisors at CHS. However, MetLife advised both Fuson and CHS that her claim for
long-term disability was denied. CHS had not received the DOT physical report from 3 Fuson, although Fuson did notify her supervisors that she had renewed her CDL. CHS
terminated Fuson’s employment on October 3, 2017, never having received the DOT
physical report nor approval from a medical review officer.
¶10 On February 6, 2018, Fuson filed disability and gender discrimination claims before
the Montana Human Rights Bureau (MHRB), alleging:
Fuson notified the company that she was able to return to work, had a valid CDL and was cleared by a DOT-approved physical. . . . Despite this, CHS erroneously determined that Fuson did not have a valid CDL and made this the basis for determination. . . . CHS illegally terminated Fuson because it perceived Fuson as disabled and used a false reason to terminate her.
¶11 The only allegations relating to Fuson’s gender discrimination claim stated “Fuson
was the only female driver in the area,” and “Fuson was subject to a hostile work
environment wherein a male supervisor treated her disparately than other male drivers.”
Fuson admitted these incidents occurred before her last day of actual work on November
¶12 The MHRB denied both claims, and Fuson filed her lawsuit in the District Court on
September 28, 2018, alleging claims for breach of implied covenant of good faith and fair
dealing, wrongful discharge, and gender and disability discrimination. On January 6, 2023,
the District Court awarded CHS summary judgment on each claim.
¶13 Fuson argues the District Court erred in dismissing her claims. She contends she
had medical certification to lawfully operate a commercial vehicle, which was the
dispositive element of her disability discrimination claim. Then, she argues her wrongful
discharge and implied covenant of good faith and fair dealing claims were factually
distinguishable from her discrimination allegations and thus not barred by the Montana 4 Human Rights Act (MHRA). Finally, she argues her gender discrimination claim was not
time-barred.
¶14 The District Court correctly held Fuson was unqualified, as a matter of law, for
continued employment with CHS and that she was therefore unable to raise a disability
discrimination claim.
¶15 Under § 49-2-303(1)(a), MCA, it is unlawful for an employer to refuse employment
to an individual because of a physical disability. To properly raise a disability
discrimination claim under the MHRA, an employee “must show: (1) she belonged to a
protected class; (2) she was otherwise qualified for continued employment . . . and (3) [she
was denied] continued employment because of her disability.” Reeves v. Dairy Queen,
1998 MT 13, ¶ 21, 287 Mont. 196, 953 P.2d 703. Federal law requires individuals to be
medically certified to operate commercial vehicles. 49 C.F.R. § 391.41(a)(1)(i). Further,
an individual is not medically qualified until the Federal Motor Carrier Safety
Administration (FMCSA) has made a determination regarding her application. 49 C.F.R.
§ 391.47(f). Barring an FMCSA determination granting medical certification, an employee
is unqualified as a matter of law for continued employment in a role that requires operating
a commercial vehicle.
¶16 CHS did not possess evidence that Fuson was qualified by the FMCSA for
continued employment. Although Fuson purports to have completed a DOT physical and
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11/28/2023
DA 23-0094 Case Number: DA 23-0094
IN THE SUPREME COURT OF THE STATE OF MONTANA
2023 MT 232N
CINDY FUSON,
Plaintiff and Appellant,
v.
CHS INC., and DOES 1-5,
Defendants and Appellees.
APPEAL FROM: District Court of the Ninth Judicial District, In and For the County of Toole, Cause No. DV-18-044 Honorable Robert G. Olson, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Torrance L. Coburn, Tipp Coburn & Associates PC, Missoula, Montana
For Appellee:
John G. Crist, Crist, Krogh, Alke & Nord, PLLC, Billings, Montana
Submitted on Briefs: October 4, 2023
Decided: November 28, 2023
Filed: 'eir--6---f __________________________________________ Clerk Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Cindy Fuson appeals an adverse ruling from the Ninth Judicial District Court, Toole
County, on discrimination, wrongful discharge, and implied covenant of good faith and fair
dealing claims arising out of her termination from CHS Inc. (CHS). We affirm.
¶3 Fuson was a driver and gauger for CHS. A commercial driver’s license (CDL) was
required for her to carry out her job duties.
¶4 Fuson was placed on worker’s compensation following an on-the-job injury in
August 2016. She performed either light-duty tasks or did not work between her date of
injury and a subsequent surgery in November 2016. Her last day of work was November
2, 2016.
¶5 Fuson was hospitalized at Warm Springs State Hospital between November 24,
2016, and December 12, 2016. She requested and received short-term disability from CHS
for mental health issues between December 14, 2016, and June 15, 2017. CHS mailed
paperwork for a long-term disability application to Fuson in April 2017, which she did not
immediately return.
2 ¶6 On June 26, 2017, Christopher Rost, PA-C, denied Fuson medical certification for
her CDL, stating “[e]xaminer feels she is not suitable at this time to safely operate CMV
[commercial motor vehicle]. Close psychiatric follow up is needed.” Global Safety
Network, an independent medical review agency that determines whether drivers are
medically qualified to drive a commercial vehicle, reviewed Rost’s report and sent CHS a
letter stating Fuson was “[n]ot qualified due to mental health episodes without follow up.”
A CHS supervisor encouraged Fuson to seek a second opinion.
¶7 On July 5, 2017, Fuson received a letter from CHS notifying her that it had not
received her long-term disability application and that it was placing her on a “temporary
unpaid leave of absence which [would] end no later than July 17, 2017.” CHS advised
Fuson that she was not medically qualified to drive, and that it was “imperative that
outstanding employment related items be resolved no later than July 17, 2017,” otherwise
it would “re-evaluate [her] on-going status as an employee of CHS.”
¶8 Fuson submitted paperwork for long-term disability on July 17, 2017, through
MetLife, which serviced long-term disability claims for CHS. On July 18, 2017, Fuson
emailed her supervisor, stating that she “got a DOT physical,” and asking for contact
information for the medical review officer. In response, Fuson’s supervisor asked her to
send the DOT physical report to her, which she would pass along to the medical review
officer. Fuson never sent the report to her supervisor.
¶9 Fuson renewed her Montana CDL on September 12, 2017, and notified her
supervisors at CHS. However, MetLife advised both Fuson and CHS that her claim for
long-term disability was denied. CHS had not received the DOT physical report from 3 Fuson, although Fuson did notify her supervisors that she had renewed her CDL. CHS
terminated Fuson’s employment on October 3, 2017, never having received the DOT
physical report nor approval from a medical review officer.
¶10 On February 6, 2018, Fuson filed disability and gender discrimination claims before
the Montana Human Rights Bureau (MHRB), alleging:
Fuson notified the company that she was able to return to work, had a valid CDL and was cleared by a DOT-approved physical. . . . Despite this, CHS erroneously determined that Fuson did not have a valid CDL and made this the basis for determination. . . . CHS illegally terminated Fuson because it perceived Fuson as disabled and used a false reason to terminate her.
¶11 The only allegations relating to Fuson’s gender discrimination claim stated “Fuson
was the only female driver in the area,” and “Fuson was subject to a hostile work
environment wherein a male supervisor treated her disparately than other male drivers.”
Fuson admitted these incidents occurred before her last day of actual work on November
¶12 The MHRB denied both claims, and Fuson filed her lawsuit in the District Court on
September 28, 2018, alleging claims for breach of implied covenant of good faith and fair
dealing, wrongful discharge, and gender and disability discrimination. On January 6, 2023,
the District Court awarded CHS summary judgment on each claim.
¶13 Fuson argues the District Court erred in dismissing her claims. She contends she
had medical certification to lawfully operate a commercial vehicle, which was the
dispositive element of her disability discrimination claim. Then, she argues her wrongful
discharge and implied covenant of good faith and fair dealing claims were factually
distinguishable from her discrimination allegations and thus not barred by the Montana 4 Human Rights Act (MHRA). Finally, she argues her gender discrimination claim was not
time-barred.
¶14 The District Court correctly held Fuson was unqualified, as a matter of law, for
continued employment with CHS and that she was therefore unable to raise a disability
discrimination claim.
¶15 Under § 49-2-303(1)(a), MCA, it is unlawful for an employer to refuse employment
to an individual because of a physical disability. To properly raise a disability
discrimination claim under the MHRA, an employee “must show: (1) she belonged to a
protected class; (2) she was otherwise qualified for continued employment . . . and (3) [she
was denied] continued employment because of her disability.” Reeves v. Dairy Queen,
1998 MT 13, ¶ 21, 287 Mont. 196, 953 P.2d 703. Federal law requires individuals to be
medically certified to operate commercial vehicles. 49 C.F.R. § 391.41(a)(1)(i). Further,
an individual is not medically qualified until the Federal Motor Carrier Safety
Administration (FMCSA) has made a determination regarding her application. 49 C.F.R.
§ 391.47(f). Barring an FMCSA determination granting medical certification, an employee
is unqualified as a matter of law for continued employment in a role that requires operating
a commercial vehicle.
¶16 CHS did not possess evidence that Fuson was qualified by the FMCSA for
continued employment. Although Fuson purports to have completed a DOT physical and
obtained a Montana CDL, she never provided CHS with documentation indicating she was
medically certified under the federal law, and it was not CHS’s burden to request it.
See, e.g., Alexander v. Mont. Dev. Ctr., 2018 MT 271, ¶ 12, 393 Mont. 272, 430 P.3d 90 5 (employer obligations triggered once employee requests accommodations). Fuson did not
demonstrate that she was “otherwise qualified for continued employment” because there
was no record evidence showing her FMCSA medical certification. Accordingly, Fuson’s
disability discrimination claim failed as a matter of law.
¶17 Further, the District Court correctly ruled there was no remedy available to Fuson
outside the MHRA for her wrongful discharge and implied covenant of good faith and fair
dealing allegations because they are factually indistinguishable from her discrimination
claims.
¶18 The MHRA is the “exclusive remedy” for unlawful discriminatory conduct under
Title 49, chapters 2 and 3, MCA. When the “gravamen” of a claim is discrimination,
common law tort claims arising from indistinguishable facts are barred by the exclusive
remedy provision of the MHRA. Harrison v. Chance, 244 Mont. 215, 223, 797 P.2d 200,
205 (1990).
¶19 As the basis for her common law claims here, Fuson asserts CHS’s reasons for
terminating her were pretextual. Fuson alleges she “held both a valid CDL and medical
card,” but she was nevertheless terminated without being offered work. Like the District
Court below, we find these facts indistinguishable from those that supported her MHRB
complaint. The MHRB complaint alleged “Fuson notified the company that she was able
to return to work, had a valid CDL and was cleared by a DOT-approved
physical. . . . Despite this, CHS erroneously determined that Fuson did not have a valid
CDL and made this the basis for determination.” The gravamen of Fuson’s common law
claims here is discrimination, as it was before the MHRB. Fuson sought recourse for her 6 grievances through the MHRB and was denied. The District Court correctly denied her
the opportunity to circumvent the exclusivity provisions of the MHRA by simply
rebranding her claims.
¶20 Finally, the District Court correctly held that Fuson’s gender discrimination claim
was time-barred.
¶21 A discrimination complaint is time-barred under the MHRA unless it is filed “within
180 days after the alleged unlawful discriminatory practice occurred or was discovered.”
Section 49-2-501(4)(a), MCA. Because the MHRA is the “exclusive remedy” for
discrimination claims, the district court may only consider factual claims that were raised
and adjudicated by the MHRB. Borges v. Missoula Cnty. Sheriff’s Office, 2018 MT 14,
¶ 19, 390 Mont. 161, 415 P.3d 976 (citation omitted).
¶22 In her February 16, 2018 MHRB complaint, Fuson alleged disparate treatment by
CHS due to her gender. At her deposition, Fuson conceded, however, that none of the
alleged disparate treatment occurred after November 2, 2016, her last day of actual work.
Fuson now argues that even though more than a year and a half elapsed between the alleged
disparate treatment and the date she filed the MHRA complaint, the 180-day time limit
should have been based on the termination date, because her gender was a reason for the
termination. The District Court correctly determined the time period had expired.
Moreover, the District Court noted that Fuson never raised that claim before the MHRB.
She simply alleged: “Fuson was the only female driver in the area,” and she was “subject
to a hostile work environment wherein a male supervisor treated her disparately than other
male drivers.” Fuson’s claim that gender was a factor in her termination was not raised 7 before the MHRB, thus the District Court was correct to conclude it could not consider the
claim. Borges, ¶ 19.
¶23 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for memorandum opinions. In the opinion of the
Court, the case presents a question controlled by settled law or by the clear application of
applicable standards of review.
¶24 Affirmed.
/S/ MIKE McGRATH
We Concur:
/S/ JAMES JEREMIAH SHEA /S/ LAURIE McKINNON /S/ BETH BAKER /S/ DIRK M. SANDEFUR