December 31 2009
DA 07-0592
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 451
ROBERT EDWARDS, DANIEL KOHM, JOHN DOE, LOUIS GOAZIOU, DAVID ZROWKA, and RAY ST. ONGE,
Plaintiffs and Appellants,
v.
CASCADE COUNTY SHERIFF’S DEPARTMENT, DAVID CASTLE, in his individual capacity, and CLYDE “BLUE” CORNELIUSEN, in his individual capacity, and CASCADE COUNTY,
Defendants and Appellees.
APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. BDV 2004-1274 Honorable David G. Rice, Presiding Judge
COUNSEL OF RECORD:
For Appellants:
Elizabeth A. Best (argued), Best Law Offices, P.C., Great Falls, Montana
For Appellees Cascade County Sheriff’s Department, David Castle, and Clyde “Blue” Corneliusen:
Kevin C. Meek, Davis, Hatley, Haffeman & Tighe, P.C., Great Falls, Montana
For Appellee Cascade County:
Robert J. Vermillion (argued), Smith, Walsh, Clarke & Gregoire, PLLP, Great Falls, Montana
For Amicus Curiae:
Karl J. Englund, Karl J. Englund, P.C., Missoula, Montana
Lawrence A. Anderson (argued), Lawrence A. Anderson, P.C., Great Falls, Montana Argued: October 29, 2008 Submitted: December 2, 2008 Decided: December 31, 2009
Filed:
__________________________________________ Clerk
2 District Court Judge James A. Haynes delivered the Opinion of the Court.
¶1 Appellants Robert Edwards (Edwards), Daniel Kohm (Kohm), and David Zrowka
(Zrowka) are current and former sheriff’s deputies who sued their employer on
constitutional and tort theories related to political retaliation and statutory wage claims.
Appellants John Doe (Doe), Ray St. Onge (St. Onge), and Loius Goaziou (Goaziou), all
held the rank of lieutenant in Cascade County and brought similar claims against the
defendants. These individuals appeal from the decision of the Eighth Judicial District
Court which, by summary judgment, dismissed most of their claims. We affirm in part,
and reverse in part, and remand for further proceedings consistent with this Opinion.
¶2 We restate the issues as follows:
¶3 Issue One: Were Deputies Edwards, Kohm, and Zrowka required to exhaust the
Collective Bargaining Agreement grievance procedure before pursuing their political
discrimination, wage, and related claims in the District Court?
¶4 Issue Two: Does the Montana Human Rights Act constitute the “exclusive
remedy” for the claims of Edwards, Kohm, and Zrowka, as well as sheriffs’ lieutenants
Doe and St. Onge and detention lieutenant Goaziou, precluding any other constitutional,
statutory, or tort claims which are premised upon their Montana Human Rights Act
claims?
¶5 Issue Three: Were all of the Appellants deprived of their constitutional rights to a
jury trial, access to the courts, and full legal redress?
PROCEDURAL AND FACTUAL BACKGROUND
3 ¶6 Appellants’ complaints involve proceedings at the local administrative level,
before the Montana Human Rights Bureau (HRB), and in both state and federal courts. A
summary of the procedural history related to five of the Appellants’ HRB claims is set
forth in Edwards v. Cascade Co., 2009 MT 229, 351 Mont. 360, 212 P.3d 289.
¶7 At the time of the 2004 sheriff’s primary election in Cascade County, Appellants
Edwards, Kohm, and Zrowka were full-time deputy sheriffs covered by the Collective
Bargaining Agreement (CBA). Doe and St. Onge were sheriff lieutenants, and Goaziou
was a detention staff lieutenant. These latter three positions (Doe, St. Onge, and
Goaziou) were not covered by the CBA. Doe used a fictitious name due to the nature of
his work. 1 All six Appellants actively supported the losing candidate for sheriff in the
Democratic primary election. Respondent Dave Castle (Castle) won the primary
election, defeating Sheriff Funyak. There was no Republican opponent. When Funyak
resigned as sheriff, Castle was sworn in and immediately appointed Clyde “Blue”
Corneliusen (Corneliusen) as undersheriff. The Appellants allege the undersheriff soon
expressed and undertook to carry out Castle’s retaliatory objective: “I won’t be done
with any of the Funyak supporters until they are either out of this f—ing office or in their
place.”
1 In their Answer to the Second Amended Complaint, David Castle, Clyde “Blue” Corneliusen, and the Cascade County Sheriff’s Department denied there was any reason for John Doe to use a fictitious name and unilaterally disclosed his identity. “John Doe” remains in the caption.
4 ¶8 All of the Appellants except Deputy Edwards ultimately resigned from their
employment with Cascade County Sheriff’s Department and Cascade County
(collectively referred to as the “County”).
The Collective Bargaining Agreement.
¶9 The contracted terms of the CBA define the circumstances under which deputy
sheriffs covered by the CBA must file a written grievance. A “grievance,” as defined in
the CBA, “is limited to a complaint or request of an Employee which involves the
interpretation of, application of or compliance with the provisions of this Agreement.”
CBA, Art. 2.
¶10 The terms of the 2004-2005 CBA define “Employee” as full-time regular deputy
sheriffs represented by the Cascade County Deputy Sheriff’s Association for the purposes
of collective bargaining. The “Association” refers to the Cascade County Deputy
Sheriff’s Association. The “Employer” is defined as the Board of Commissioners of
Cascade County and the Cascade County Sheriff.
¶11 The management rights and statutory duties of the office of the sheriff are
specifically excluded from the CBA grievance procedure. CBA, Art. 4.2 The “office of
2 CBA, Article 4, § 2: “Inherent management rights and Montana State statutes relating to the duties of the ‘Office of the Sheriff’ are not in anyway [sic] directly or indirectly affected by this Agreement and are not subject to the grievance procedure.” The Court further notes the “Duties of Sheriff’ are addressed in § 7-32-2121, MCA.
5 the sheriff” is not defined in the CBA. Promotions are specified as a management right
of the sheriff. CBA, Art. 7.3
¶12 The CBA contains a non-discrimination clause:
It is the permanent policy of the Employer to provide equal opportunities for employment, retention, and advancement to all Employees regardless of race, color, creed, national origin, sex, age, marital status or political belief. [Emphasis added.] The Employer will not discriminate against any Employee because of Association membership or activity and the Association will not discriminate against any Employee because of lack of membership or lack of activity in the Association. CBA, Art. 6.
¶13 Article 16 of the CBA requires the Employer to pay wages to employees
“calculated according to applicable Montana State Law.”
¶14 To initiate a CBA grievance, a dispute must be submitted in writing “to the
Lieutenant who is the grievant’s immediate supervisor.” CBA, Art. 10. Five progressive
resolution levels exist in the CBA’s grievance process, culminating in binding arbitration.
CBA, Art. 10.
Grievance History.
¶15 Appellants Edwards and Kohm filed grievances in early October 2004 with the
Board of Commissioners for Cascade County, and claimed violations of the County’s
promotion policies. Edwards asserted Undersheriff Corneliusen failed to follow accepted
procedure for considering Edwards as a candidate for promotion from Deputy Coroner to
3 CBA, Article 7, § 1: “Promotions are a management right which are governed by the Policies of the Sheriff. The primary objective in promoting personnel is to select the most competent, responsible, effective and eligible members available to fill the open supervisory and command positions.” 6 Chief Deputy Coroner. Kohm alleged Sheriff Castle failed to follow proper process in
considering Kohm as a candidate for promotion from sergeant to lieutenant. In
December 2004, the Board of County Commissioners found in favor of Edwards and
Kohm and directed the promotion processes be restarted and redone.
¶16 Appellant Zrowka wrote a letter to Sheriff Castle expressing concerns over the
elimination of an evidence technician/photo lab technician position. Zrowka delivered
copies of this letter to the County Attorney’s office and to the human resources officer. 4
¶17 In late October 2004, Edwards and Kohm also filed complaints of discrimination
with the Montana Department of Labor and Industry (Department) alleging that they
were subjected to employment discrimination based on their political beliefs.
¶18 In December 2004, Doe, Goaziou, and Zrowka filed similar complaints of
discrimination with the Department.
Human Rights Bureau Proceedings.
¶19 In April 2005, the HRB issued its report finding reasonable cause that Edwards
was subjected to discrimination, and the HRB retained jurisdiction. On that same date,
the HRB issued a report finding no reasonable cause to support Kohm’s complaint, and
dismissed it. The Department issued Kohm a Notice of Dismissal, accompanied by a
4 Zrowka’s letter is generally referred to as a “grievance” in Appellants’ Brief and is mentioned in the June 26, 2006 deposition of Zrowka as “Exhibit 1.” This letter is not included in the record on appeal.
7 “right to sue” letter informing Kohm he could pursue his complaint of discrimination in
district court.5
¶20 In June 2005, the HRB found a lack of reasonable cause to support the complaints
of Doe, Goaziou, and Zrowka. Those complaints of discrimination were dismissed, and
“right to sue” letters were issued.
¶21 In July 2006, the HRB issued its final order and judgment for Deputy Edwards,
resulting in a $40,948.83 award for emotional damages and loss of past wages, a $795.42
per month award of future wages for a year, health care costs for anxiety and depression,
and restoration to duty status. The HRB decision permanently enjoined the County from
further adverse discriminatory employment action based upon political ideas or beliefs.
Neither party appealed this award. Although Edwards prevailed before the HRB on his
claim that he was unlawfully retaliated against because of his political beliefs and ideas,
he contends he is entitled to pursue independent constitutionally-based claims, including
constitutionally-based privacy claims which derive from wrongful disclosure of his
private personnel matters and false allegations that he used marijuana.
¶22 Before the HRB investigations were completed, Edwards and Kohm filed this
lawsuit in District Court alleging violations of their constitutional rights of freedom of
speech and freedom of association under the Montana Constitution and 42 U.S.C. § 1983,
5 A “right to sue” letter is the practitioner’s term derived from usage and the subtext of § 49-2-504(7)(b), MCA.
8 in addition to Edwards’ alleged right to privacy violation. The First Amended Complaint
added Doe, Goaziou and Zrowka as plaintiffs.
Montana District Court Proceedings.
¶23 Because federal civil rights violations were alleged under 42 U.S.C. § 1983, the
County removed all of these claims to federal court. The County then filed a motion in
the United States District Court to stay the federal court proceedings on the ground that
the administrative proceedings under the Montana Human Rights Act had not been
exhausted and finalized. In its motion to stay, the County argued the gravamen of
Appellants’ claims was grounded in discrimination. The County asserted the Montana
Human Rights Act, codified at Title 49, MCA (MHRA), provides the exclusive remedy
for illegal discrimination, and in any event, the MHRA required exhaustion of its
informal and formal administrative proceedings before these matters could proceed in a
district court setting.
¶24 Before the United States District Court issued a ruling on the County’s motion to
stay, Appellants determined that their allegations of violations of civil rights claims under
42 U.S.C. § 1983 were redundant with their claims under the Montana Constitution and
sought leave to file their Third Amended Complaint which dismissed their §1983 claims.
Appellants concurrently moved to remand this case to the state district court. The United
States District Court granted Appellants’ motion to file the Third Amended Complaint
and remanded this case to the Montana Eighth Judicial District Court in Cascade County.
9 ¶25 The three Appellants who were deputy sheriffs (Edwards, Kohm, Zrowka)
subsequently sought leave to file their Fourth Amended Complaint to add statute-based
wage claims, alleging they “recently learned information which, if true, supports a claim
that the County has been paying them less than the amounts required by law for deputies
sheriff . . . .” The District Court granted leave to file the Fourth Amended Complaint.
¶26 In April 2006, the County for the first time raised the defense that the three
Appellants who were deputy sheriffs had failed to exhaust their administrative remedies
under the requirements of the CBA. Appellants initially did not oppose the addition of
this affirmative defense and filed a notice so indicating.
¶27 In May 2006, the Fifth Amended Complaint added St. Onge as a plaintiff. St.
Onge alleged his constitutional rights were violated, he was forced to resign, and is owed
wages due. St. Onge admits he filed no discrimination claim under the MHRA. He
disputes, however, that the exclusive remedy provision of the MHRA preempts his
constitution-based political retaliation claims.
¶28 In July 2006, the County requested dismissal of the political discrimination and
wage claims of Edwards, Kohm, and Zrowka because of their failures to exhaust the
remedies under the CBA. Appellants opposed dismissal on the following grounds:
1. The terms of the CBA’s provision requiring arbitration of an individual’s legislatively created cause of action must be “clear and unmistakable,” citing Wright v. Universal Maritime Service Corp., 525 U.S. 70, 119 S. Ct. 391 (1998).
2. The United States Supreme Court’s decisions in Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S. Ct. 1011 (1974) and Barrentine v. Arkansas-Best Freight Sys., Inc. 450 U.S. 728, 101 S. Ct. 1437 (1981), stand for the proposition that Appellant deputies’ constitutional and tort claims, and statutory discrimination and 10 wage claims, are based upon the law of the land rather than the “law of the shop,” cannot be waived, and are independent of the collective bargaining process, and thus are exempt from the grievance process in the CBA.
3. The doctrine of equitable estoppel precluded the County’s “failure to exhaust remedies” defense.
¶29 Various claims in the Fifth Amended Complaint were then dismissed by consent
of the parties.6 The District Court’s summary judgment decision addressed Appellants’
remaining claims for relief under Counts I, II, IV, and V of the Fifth Amended
Complaint.
¶30 In Count I, the Appellants alleged various constitutional violations. They claimed
that Castle and Corneliusen retaliated against them “on the basis of their exercise of their
freedom to associate with others of similar political beliefs and their exercise of their
freedom of speech, when they supported Kent Funyak, and in retaliation for their political
ideas and activity.” This count also alleged that the defendants made employment
decisions which caused these Appellants to suffer damages, and that these decisions were
motivated by the Appellants’ “exercise of their constitutional rights to freedom of
association and freedom of speech.” They also claimed that the defendants violated their
constitutionally-guaranteed right to privacy.
¶31 Count II directly alleged that the defendants discriminated against them in
violation of the Montana Constitution, the Montana Governmental Code of Fair
Practices, and Title 49, chapters 2 and 3, of the MHRA. Kohm, Zrowka, Doe, Goaziou,
6 The dismissed claims were Count III, Interference with Employment; Count V, Goaziou’s wage claim; and Count V, overtime wage claims of Kohm and Doe.
11 and Edwards brought these discrimination claims before the HRB. The HRB awarded
Edwards damages based on this claim. See Opinion, ¶ 21. The HRB denied the claims
of Kohm, Zrowka, Doe, and Goaziou, and issued them “right to sue” letters. See
Opinion, ¶¶ 19-20. St. Onge did not file a discrimination claim with the HRB.
¶32 Count IV alleged intentional or negligent infliction of emotional distress. Included
in this claim is the assertion that Appellants “have suffered severe mental and emotional
distress . . . .”
¶33 Count V alleged that unpaid wages are owed to Edwards, Kohm, Zrowka, Doe,
and St. Onge. The Appellants claimed that they were entitled to compensation for lost
wages and liquidated damages pursuant to Title 39, chapter 3, part 2, MCA, and Title 7,
chapter 4, part 2, MCA.
¶34 The District Court determined that the essence of Appellants’ claims involved
discrimination and wage claims. Under the rule in MacKay v. State, 2003 MT 274, 317
Mont 467, 79 P.3d 236, the District Court dismissed all of the remaining claims of
Deputies Edwards, Kohm and Zrowka, under Counts I (violation of constitutional rights),
II (political discrimination), IV (infliction of emotional distress) and V (unpaid wages),
on the ground they were barred for failure to exhaust administrative remedies through the
CBA grievance process before pursuing their civil claims in District Court. The District
Court concluded that the discrimination claims could have been brought under the CBA’s
discrimination clause, and that the unpaid wage claims could have been brought under
Article 16 of the CBA. See Opinion, ¶¶ 12, 13. The District Court rejected Appellants’
estoppel argument, and Appellants do not raise it on appeal. 12 ¶35 Relying on a line of cases beginning with Harrison v. Chance, 244 Mont. 215,
223, 797 P. 2d 200, 205 (1990), the District Court also dismissed the constitutional
claims (Count I) and infliction of emotional distress (Count IV) claims of Doe and
Goaziou. The District Court determined that the gravamen of these claims was
discrimination and that the MHRA provides the exclusive remedy for discrimination-
related claims. Because Doe and Goaziou failed to bring these claims before the
Department, the District Court concluded they were now barred. On similar grounds, the
District Court dismissed St. Onge’s claims under Counts I and IV. The District Court
ruled St. Onge was required to have first filed an MHRA claim to preserve his
constitutional and emotional distress claims, since they are subsumed within the
exclusivity provision of the MHRA. The political discrimination claims of Doe and
Goaziou under Count II remained for trial since these claims had been submitted to the
HRB.
¶36 The District Court permitted the statutory wage claims of Doe and St. Onge to
proceed, provided they amended their complaint to include a contract theory. They
complied, filing a Sixth Amended Complaint. Goaziou, the detention officer, filed no
wage claim for sheriff’s deputy wages.
¶37 The District Court thereafter granted M. R. Civ. P. 54(b) certification, allowing
Appellants to appeal the District Court’s summary judgment rulings.
STANDARD OF REVIEW
¶38 Summary judgment is appropriate when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that 13 there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” M. R. Civ. P. 56(c). We review de novo a district court’s
decision to grant summary judgment. GRB Farm v. Christman Ranch, Inc., 2005 MT 59,
¶ 7, 326 Mont. 236, 108 P.3d 507. When the material facts are undisputed, we review
whether the district court correctly applied the law. Farmers Union Mutual Ins. Co. v.
Staples, 2004 MT 108, ¶ 18, 321 Mont. 99, 90 P.3d 381; Hogenson Const. of N.D. v.
Mont. State Fund, 2007 MT 267, ¶11, 339 Mont. 389, 170 P.3d 471. The construction
and interpretation of a contract is a question of law. Ophus v. Fritz, 2000 MT 251, ¶ 19,
301 Mont. 447, 11 P.3d 1192.
DISCUSSION
¶39 Appellants fall into two categories:
1. The three full-time deputy sheriffs who were defined as an “Employee”
under the negotiated terms of the CBA: Edwards, Kohm, and Zrowka.
2. The sheriff’s lieutenants Doe and St. Onge and detention lieutenant
Goaziou who were not included in the definition of “Employee” under the terms of the
CBA.
¶40 We address the following:
I. Were Edwards, Kohm, and Zrowka—the three full-time deputy sheriffs defined as “Employees” under the CBA—required to exhaust the CBA grievance procedure before pursuing their political discrimination, wage and related claims in the District Court?
II. Does the MHRA constitute the “exclusive remedy” for the claims of Edwards, Kohm, and Zrowka, as well as sheriff’s lieutenants Doe and St. Onge and detention lieutenant Goaziou, precluding any other constitutional, statutory based, or tort claims which are premised upon their MHRA claims? 14 III. Were all of the Appellants deprived of their constitutional rights to a jury trial, access to the courts, and full legal redress?
¶41 At the outset we note a grievance under the CBA must be initiated by a written
notification to the “Lieutenant who is the grievant’s immediate supervisor . . . .” The
grievances filed by Edwards and Kohm in October 2004 with the Board of
Commissioners for Cascade County involved promotion disputes which were
management rights specifically excluded from the CBA grievance process. CBA, Art. 4
and Art 7. Zrowka delivered his letter to the Cascade County Attorney’s Office and
human resources officer, rather than to his supervising lieutenant. The District Court
correctly concluded none of these deputies initiated any grievance under the terms of the
CBA before bringing these claims in District Court.
¶42 Issue One: Were Deputies Edwards, Kohm, and Zrowka required to exhaust the CBA grievance procedure before pursuing their political discrimination, wage, and related claims in the District Court?
¶43 We start this analysis by confirming that because Doe, St. Onge, and Goaziou
were not covered by the CBA, their respective claims are unaffected by the following
discussion.
¶44 The District Court determined that the gravamen of Counts I, II, and IV, was
discrimination, and that the gravamen of Count V was unpaid wages. Relying upon the
CBA’s non-discrimination clause, Article 16 of the CBA, and this Court’s precedent in
MacKay, the District Court determined that Edwards, Kohm, and Zrowka were required
to grieve their discrimination and wage claims before they could present them in District
Court. Because they failed to do so, these claims were now barred. 15 ¶45 Deputies Edwards, Kohm, and Zrowka argue that because their constitutional and
statutory rights do not derive from the CBA, these claims are not subject to preemption
under the CBA. It follows, they assert, they are not required to exhaust the CBA
grievance procedure before filing a lawsuit for redress of violations they claim under
Montana’s Constitution: Article II, Section 6 (freedom of assembly), Section 7 (freedom
of speech), Section 8 (right of participation in government), Section 10 (right of
privacy—Edwards), and Section 17 (due process of law); MHRA statutory discrimination
claims (Title 49, MCA); and statutory wage claims under §§ 7-4-2503 through -2508,
MCA. They additionally argue the wording of the CBA makes clear its grievance
procedure is limited, i.e., its coverage excludes statute-based claims and only prohibits
discrimination for “Association” activities. 7
¶46 Appellants, joined by Amicus Montana Trial Lawyers Association, further
contend any collective bargaining agreement governs only limited employment issues
such as wages, hours, or fringe benefits for the good of the whole of the members of a
collective bargaining unit. They assert a collective bargaining agreement may never
bargain away or waive any individual member’s statutory or constitutionally-based rights
and remedies.
¶47 The County counters that the CBA includes express provisions that the Employer
will “provide equal opportunities . . . to all Employees regardless of . . . political belief,”
and will pay wages “according to applicable Montana State Law . . . .” Since these
7 CBA, Art. 6, in part, states: “The Employer will not discriminate against any Employee because of Association membership or activity. . . .” 16 contractual provisions were negotiated, bargained for, and written into the CBA, and
specifically address the two primary categories in dispute, the County reasons that
Appellants Edwards, Kohm, and Zrowka were required to invoke the CBA grievance
procedure to attempt to resolve these two categories of their claims before proceeding in
District Court. The County asserts that since the Appellants’ constitutional and
statute-based discrimination claims are intertwined with the discrimination claims
covered under the CBA grievance procedure, these claims also fall within the scope of
the CBA.
¶48 The parties’ arguments mirror the tension that has long-existed between two
competing aspects of management labor relations policy. These competing policies are
well described in Barrentine:
The first, reflected in statutes governing relationships between employers and unions, encourages the negotiation of terms and conditions of employment through the collective-bargaining process. The second, reflected in statutes governing relationships between employers and their individual employees, guarantees covered employees specific substantive rights. A tension arises between these policies when the parties to a collective-bargaining agreement make an employee’s entitlement to substantive statutory rights subject to contractual dispute-resolution procedures.
Barrentine, 450 U.S. 734-35, 101 S. Ct. at 1441.
¶49 Under Montana law, an employee covered by the terms of a collective bargaining
agreement generally must first attempt to resolve covered contract disputes by exhausting
the grievance procedures written into the agreement before proceeding into court.
MacKay, ¶ 25; Irving v. School Dist. No. 1-1A, Valley Co., 248 Mont. 460, 469, 813 P.2d
17 417, 422 (1991); Lueck v. United Parcel Serv., 258 Mont. 2, 8, 851 P.2d 1041, 1044-45
(1993). The policy of the state of Montana favors resolving covered contract labor
disputes, if possible, according to the terms of a collective bargaining agreement. Small
v. McRae, 200 Mont. 497, 502, 651 P.2d 982, 985 (1982). The reasoning behind this rule
is to encourage a “ ‘friendly adjustment of all disputes between public employers and
their employees . . . .’ ” Small, 200 Mont. at 502, 651 P.2d at 985 (quoting § 39-31-101,
MCA). 8
¶51 Federal law, rather than state law, governs the interpretation of the scope of a
collective bargaining agreement. Miller v. Glacier Co., 257 Mont. 422, 425, 851 P.2d
401, 403 (1993) (citing Teamsters Union v. Lucas Flour Co., 369 U.S. 95, 82 S. Ct. 571
(1962).
“As a general rule . . . federal labor policy requires that individual employees wishing to assert contract grievances must attempt use of the contract grievance procedure agreed upon by employer and union as the mode of redress. If the union refuses to press or only perfunctorily presses the individual’s claim, differences may arise as to the forms of redress then available. (Citations omitted). But unless the contract provides otherwise, there can be no doubt that the employee must afford the union the opportunity to act on his behalf. Congress has expressly approved contract grievance procedures as a preferred method for settling disputes and stabilizing the ‘common law’ of the plant. (Citations omitted.)
. . .
8 Section 39-13-101, MCA, reads as follows: “In order to promote public business by removing certain recognized sources of strife and unrest, it is the policy of the state of Montana to encourage the practice and procedure of collective bargaining to arrive at friendly adjustment of all disputes between public employers and their employees.”
18 “A contrary rule which would permit an individual employee to completely sidestep available grievance procedures in favor of a lawsuit has little to commend it. In addition to cutting across the interests already mentioned, it would deprive employer and union of the ability to establish a uniform and exclusive method for orderly settlement of employee grievances.”
To allow a member of the collective bargaining unit to completely sidestep available procedures would, just as under federal law, exert a disruptive influence upon both the negotiation and administration of collective bargaining agreements and effectively deprive employers and unions of the ability to establish a uniform and exclusive method for the orderly settlement of employee grievances.
Small, 200 Mont. at 503, 504, 651 P.2d at 986 (quoting Republic Steel Corp. v. Maddox,
379 U.S. 650, 652-53, 85 S. Ct. 614, 616-17 (1965) (construing the National Labor
Relations Act).9
¶52 Section 301 of LMRA has served as a springboard for creation of federal common
law for a uniform interpretation of collective bargaining agreements.10 Foster v.
9 The National Labor Relations Act of 1935 (NLRA), 29 U.S.C. §§ 151-169 guarantees employees the right to self-organization, to form, join, or assist labor organizations, and to bargain collectively. The Labor Management Relations Act of 1947 (LMRA), 29 U.S.C. § 141, amended the NLRA and generally imposes limits on a covered employee’s ability to strike, picket, and boycott. 10 Section 301, codified at 29 U.S.C. § 185(a), provides:
Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this Act, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.
19 Albertsons, Inc., 254 Mont. 117, 122, 835 P.2d 720, 724 (1992) (citing Textile Workers
Union v. Lincoln Mills, 353 U.S. 448, 77 S. Ct. 912 (1957)). In Foster we noted the
United States Supreme Court has held § 301 preemption ensures federal law is the basis
for interpreting collective bargaining agreements. Foster, 254 Mont. at 125, 835 P.2d at
725 (implied covenant of fair dealing claim preempted by the scope of the collective
bargaining agreement) (citing Lingle v. Norge Division of Magic Chef, Inc., 486 U.S.
399, 108 S. Ct. 1877 (1988)).
¶53 When reviewing whether a claim is covered by the terms of a collective
bargaining agreement, we interpret its terms “according to the plain, ordinary language
used by the parties.” Winchester v. Mountain Line, 1999 MT 134, ¶ 28, 294 Mont. 517,
982 P.2d 1024. The Court must ascertain “ ‘whether the party seeking arbitration is
making a claim which on its face is governed by the contract.’ ” Klein v. State, 2008 MT
189, ¶ 20, 343 Mont. 520, 185 P.3d 986 (quoting United Steelworkers of Am. v. Am. Mfg.
Co., 363 U.S. 564, 568, 80 S. Ct. 1343, 1346 (1960)). If the claim is covered, the
grieving party must pursue and exhaust the remedies provided for in the collective
bargaining agreement. Klein, ¶ 20 (citing Lueck, 258 Mont. at 8, 851 P.2d at 1044-45).
We have previously stated that “[o]nly in those cases where it is certain that the
arbitration clause contained in a collective bargaining agreement is not susceptible to an
interpretation that covers the dispute is an employee entitled to sidestep the provisions of
the collective bargaining agreement.” Small, 200 Mont. at 504, 651 P.2d at 986;
Winchester, ¶ 24; Klein, ¶ 11.
20 ¶54 In Klein, we determined the plaintiff’s tort claim of deceit was neither “intimately
bound” nor “rooted” in the wording of that particular collective bargaining agreement.
Klein, ¶ 31. The scope of the language in Klein’s collective bargaining agreement, on its
face, addressed neither deceit nor infliction of emotional distress. Similarly, in Winslow
v. Mont. Rail Link, Inc., 2005 MT 217, 328 Mont. 260, 121 P.3d 506, we held:
Winslow has consistently argued that his theory did not involve the CBA, but instead pertained to allegations that MRL used a false pretext to fire him in order to further a scheme designed to intimidate railroad workers so that they would not file injury reports. After review of the record, we conclude that Winslow’s claims are not “firmly rooted” in a breach of the CBA itself . . . .
Winslow, ¶ 36.
¶57 The scope of a collective bargaining agreement may be negotiated to include
arbitration of any controversy. Miller, 257 Mont. at 426-27, 851 P.2d at 403-04. Thus, a
broadly written arbitration provision requiring arbitration of “any controversy”
encompasses a tort claim of assault. Vukasin v. D.A. Davidson & Co., 241 Mont. 126,
133, 785 P.2d 713, 718 (1990) (citing Zolezzi v. Dean Witter Reynolds, Inc., 789 F.2d
1447, 1449-50 (9th Cir. 1986)). However, when the scope of a collective bargaining
agreement is written more narrowly than “any controversy” or “all claims,” the contract
wording must be reviewed to determine which claims are not rooted in the collective
bargaining agreement and are capable of being litigated directly in court. Miller, 257
Mont. at 427, 851 P.2d at 404.
¶58 We apply the above labor law rules to the constitutional, statutory discrimination,
emotional distress, and statutory wage claims of Edwards, Kohm, and Zrowka. Each
21 claim must be evaluated to determine to what extent, if any, if it is covered by the
wording of the collective bargaining agreement. The claims fall into three categories:
1. Constitution-based claims (assembly, speech, participation, privacy, due
process);
2. Statutory claims (discrimination and wage);
3. Tort claims (emotional distress).
1. Constitution-based claims.
¶59 Appellants cite Dorwart v. Caraway, 2002 MT 240, 312 Mont. 1, 58 P.3d 128, for
the proposition that Montana’s constitutional guarantees of Freedom of Assembly (Art.
II, Section 6), Freedom of Speech (Art. II, Section 7), Right of Privacy (Art. II, Section
10), and Due Process of Law (Art. II, Section 17) are self-executing constitutional
provisions, wholly independent of the CBA. The District Court concluded the
constitutional claims of interference with assembly, speech, privacy and due process
made by Edwards, Kohm, and Zrowka are actually components of their underlying
political discrimination claims. Accordingly, it held that the Appellants were required
both to grieve them under the CBA’s discrimination clause and present them to the HRB
in order to preserve them in District Court.
¶60 As discussed below, see Opinion, ¶ 78, we agree with the District Court that for
purposes of the MHRA the gravamen of Count I was discrimination and that the
Appellants were required to bring these claims before the HRB as a precondition to filing
suit in District Court. See Shields v. Helena School District No. 1, 284 Mont. 138, 149,
943 P.2d 999, 1005 (1997). Thus, irrespective of whether the claims in Count I were 22 covered by the CBA itself, these Appellants are now barred from bringing the claims in
Count I for failure to comply with the MHRA.11
2. Statutory discrimination and wage claims.
¶61 The District Court determined the CBA, on its face, covered the discrimination
and wage claims of Edwards, Kohm, and Zrowka. Appellants Edwards, Kohm, and
Zrowka assert the CBA only prohibits discrimination “because of Association
membership or activity.” They also argue Article 4 of the CBA excludes the statutory
duties of the office of the sheriff from the grievance process, including Appellants’
statute-based discrimination claims and wage claims.
¶62 The County responds that the first paragraph of the non-discrimination clause in
the CBA clearly addresses discrimination, including political discrimination. The full
text of the non-discrimination clause found at Article 6 in the CBA states:
It is the permanent policy of the Employer to provide equal opportunities for employment, retention, and advancement to all Employees regardless of race, color, creed, national origin, sex, age, marital status or political belief. (Emphasis added.) The Employer will not discriminate against any Employee because of Association membership or activity and the Association will not discriminate against any Employee because of lack of membership or lack of activity in the Association.
¶63 The wage clause, Article 16 of the CBA, simply requires the Employer to pay
wages to employees “calculated according to applicable Montana State Law.”
11 We reiterate that these Appellants could proceed in District Court with their employment discrimination claims; it is their “constitution-based” claims that are barred for failure to raise them before the HRB. 23 ¶64 In Wright, the United States Supreme Court held that a collective bargaining
agreement does not waive an employee’s right to a judicial forum for a legislatively
created cause of action unless it contains a “clear and unmistakable” waiver of that right.
Wright, 525 U.S. at 81, 119 S. Ct. at 397; see also 14 Penn Plaza, LLC v. Pyett, ___ U.S.
___, 129 S. Ct. 1456, 1474 (2009) (holding that a collective bargaining agreement which
“clearly and unmistakably” requires union members to arbitrate claims brought under the
Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634, is enforceable as
a matter of federal law). Nothing in the language of the CBA, including Art. 6, “clearly
and unmistakably” announces any requirement to arbitrate the statutory discrimination or
wage claims presented here. The first paragraph of Article 6 merely announces the
County’s general policy regarding non-discrimination. The second paragraph refines the
general policy by further announcing that the County will not discriminate “because of
Association membership or activity.”
¶65 Moreover, Art. 4 of the CBA specifically excludes the duties of the office of the
sheriff from the CBA grievance procedure. The duties of a sheriff include adherence to
Montana’s statutory non-discrimination policy commanded by the MHRA, as well as the
duty of complying with the statutory wage scheme for deputy sheriffs set forth in
§ 7-4-2508, MCA. A statutory enforcement mechanism exists for wage claims under
Title 39, chapter 3, part 2, MCA. No language in the CBA unmistakably waives the
Appellants’ rights to seek judicial relief to enforce the County’s corresponding duties.
¶66 We therefore conclude that the CBA does not “clearly and unmistakably” cover
Appellants’ statutory discrimination and wage claims. The scope of the CBA does not 24 require arbitration of the discrimination claims of Kohm and Zrowka, and the wage
claims brought by Edwards, Kohm, and Zrowka, as a precondition to filing suit in
District Court.
3. Emotional distress tort claims.
¶67 Count IV alleges emotional distress, presumably stemming from Appellants
alleged constitutional and discrimination injuries. Infliction of emotional distress can be
an independent cause of action. Sacco v. High Country Independent Press, Inc., 271
Mont. 209, 896 P.2d 411 (1995). However, emotional distress damages are specifically
covered by the remedy provisions of the MHRA. Section 49-2-506, MCA; Benjamin v.
Anderson, 2005 MT 123, 327 Mont. 173, 112 P.3d 1039. In fact, the District Court
determined that Appellants’ emotional distress claims, like the claims in Count I, at their
essence arose out of the discrimination claims which fall within the exclusive remedy
provisions of the MHRA. We agree with the District Court. Thus, irrespective of
whether the claims in Count IV were covered by the CBA itself, the Appellants are
prohibited from bringing them in District Court because they failed to properly bring
them before the HRB.
¶68 For these reasons, we hold that the Appellants’ failure to bring the claims in
Counts I and IV before HRB bars them from pursuing them now, regardless of whether
they are covered by the terms of the CBA. We therefore affirm the District Court’s
dismissal of Counts I and IV.
¶69 However, we reverse the District Court’s dismissal of the statutory discrimination
claims of Kohm and Zrowka. We conclude that the CBA does not “clearly and 25 unmistakably” cover these claims and that Kohm and Zrowka may pursue their statutory
discrimination claims in District Court, since they did bring them before the HRB and
were issued “right to sue” letters.12
¶70 We also reverse the dismissal of the statutory wage claims of Edwards, Kohm, and
Zrowka. These Appellants did not waive their right to seek relief for violations of
Montana’s wage protection statutes. These claims may now proceed in the District
Court.
¶71 Issue Two: Does the MHRA constitute the “exclusive remedy” for the claims of Edwards, Kohm, and Zrowka, as well as sheriffs’ lieutenants Doe and St. Onge and detention lieutenant Goaziou, precluding any other constitutional, statutory, or tort claims which are premised upon their MHRA claims?
¶72 Following the reasoning in a line of cases commencing with Harrison, the District
Court ruled the gravamen of the constitutional and emotional distress tort claims of Doe,
St. Onge and Goaziou was based on political discrimination for their individual, personal
political beliefs. As such, these claims fell within the exclusive remedy provision of the
MHRA. Section 49-2-509(7), MCA, recodified in 2007 as § 49-2-512(1), MCA, states:
The provisions of this chapter establish the exclusive remedy for acts constituting an alleged violation of chapter 3 or this chapter, including acts that may otherwise also constitute a violation of the discrimination provisions of Article II, section 4, of the Montana constitution or 49-1-102. A claim or request for relief based upon the acts may not be entertained by a district court other than by the procedures specified in this chapter.
12 Because Edwards has received a favorable ruling from the HRB and has not appealed its decision, he is barred from pursuing further claims by virtue of the MHRA. Shields, 284 Mont. at 149, 943 P.2d at 1005. In this connection, we note our agreement with the District Court’s determination that Edwards’ constitutional privacy claims were discrimination claims properly submitted before the Department. 26 ¶73 The District Court permitted Doe and Goaziou to pursue their constitutional and
emotional distress claims only in the context of their political discrimination claims.
Counts I (violation of constitutional rights) and IV (infliction of emotional distress), as
independent claims, were dismissed. Since St. Onge did not file a discrimination
complaint under the MHRA, the District Court ruled St. Onge is disallowed from
proceedings with his Count I and Count IV claims. We uphold the District Court on this
issue.
¶74 Appellants Doe, St. Onge and Goaziou argue a plain reading of § 49-2-509(7),
MCA, extends the MHRA’s exclusive remedy provision only to the discrimination
provisions of Article II, Section 4, of the Montana Constitution.13 These Appellants
assert none of their claims were raised under Article II, Section 4.
¶75 In response, the County argues the District Court properly determined that the
underlying basis for all of the Appellants’ claims under Counts I and IV is discrimination
based upon political belief. We have consistently held the MHRA provides “the
exclusive remedy for illegal discrimination.” Shields, 284 Mont. at 149, 943 P.2d at 1005
(citing Harrison, 244 Mont. at 223, 797 P.2d at 205); Arthur v. Pierre Ltd., 2004 MT
303, ¶ 18, 323 Mont. 453, 100 P.3d 987 (The MHRA “bars a plaintiff from pursuing
other tort claims where those claims arise from underlying allegations of . . .
13 Article II, Section 4 of the Montana Constitution reads:
Individual dignity. The dignity of the human being is inviolable. No person shall be denied the equal protection of the laws. Neither the state nor any person, firm, corporation, or institution shall discriminate against any person in the
27 discrimination . . . .”). More recently we upheld the converse position in a dual MHRA
and Wrongful Discharge from Employment Act (WDEA) claim, holding a WDEA claim
which is not based upon “underlying allegations of . . . discrimination” is not precluded
by the exclusive remedy provisions of the MHRA. Vettel-Becker v. Deaconess Med. Ctr.
of Billings, Inc., 2008 MT 51, ¶ 40, 341 Mont. 435, 177 P.3d 1034 (“Discrimination can
occur without a wrongful discharge and a wrongful discharge can occur without a
discriminatory act.”).
¶76 Section 49-2-509(7), MCA (2007), extends the exclusive remedy under the
MHRA to any violation of Article II, Section 4 of the Montana Constitution. Article II,
Section 4 forbids discrimination against any person for exercising his or her political
rights or expressing their political ideas. The MHRA implements the non-discrimination
rights enumerated in Article II, Section 4 of the Montana Constitution. The exclusivity
rule applies to the political discrimination claims of Doe, Goaziou, and St. Onge, which
may only be raised within the statutory framework of a MHRA discrimination claim.
¶77 The District Court correctly ruled the gravamen of the non-wage claims of Doe,
Goaziou and St. Onge are grounded in allegations of political discrimination. All of the
Appellants alleged that their damages, including for severe emotional distress, were “a
direct and proximate result of the discrimination . . . .” Doe’s and Goaziou’s MHRA
complaints before the Department alleged discrimination and retaliation in employment
based upon political ideas, beliefs, and activity, all in violation of the MHRA, the
exercise of his civil or political rights on account of race, color, sex, culture, social origin or condition, or political or religious ideas. 28 Montana and United States Constitutions, and the “Civil Rights Act of 1964 and 1991, as
amended.” Each of the Appellants except St. Onge sought damages under the MHRA,
including for emotional distress. Before the District Court, Doe, Goaziou and St. Onge
alleged that the County and Sheriff’s office “employees acting at their direction began to
retaliate against [Appellants] . . . on the basis of their exercise of their freedom to
associate with others of similar political beliefs . . . in retaliation for their political ideas
and activity” and that the County “employed hiring, promotion, and transfer procedures
which altered [Appellants’] terms and conditions of employment, and which retaliated
against [Appellants].”
¶78 We conclude the essence of the Appellants’ constitution-based claims under Count
I, as well as their emotional distress claims under Count IV, is grounded in their
allegations of politically-motivated discrimination that was initiated by the sheriff. The
exclusive remedy for this form of alleged political discrimination is the MHRA. We
affirm the District Court’s ruling that the discrimination claims of Doe and Goaziou were
covered by the MHRA. Because they were issued “right to sue” letters, they may now
pursue their claims in District Court. We also affirm the District Court’s ruling that St.
Onge failed to preserve his discrimination claims by failing to file a complaint under the
MHRA.
¶79 Issue Three: Were all of the Appellants deprived of their constitutional rights to a jury trial, access to the courts, and full legal redress?
¶80 Appellants broadly argue on appeal that the effect of the District Court’s summary
judgment order deprived them of the right to access the court system to redress that
29 remedy. These arguments are undeveloped on appeal and were neither raised in nor
addressed by the District Court. Moreover, the record contains no evidence of
compliance with M. R. Civ. P. 24(d) or M. R. App. P. 27 related to notice regarding
constitutional questions when the State is not a party.
¶81 In State v. Johnson, 2005 MT 48, 326 Mont. 161, 108 P.3d 485, we declined to
address the defendant’s constitutional challenge because we could not “make such a
determination on the basis of the abbreviated arguments before us.” Johnson, ¶11.
Likewise, in State v. Garrymore, 2006 MT 245, 334 Mont. 1, 145 P.3d 946, the
defendant asserted that Article II, Sections 24 and 26 of the Montana Constitution afford
a greater jury trial right than does the Sixth Amendment to the United States Constitution;
yet, critically, he “fail[ed] to offer a compelling reason why the greater jury trial right in
Montana dictate[d] a different result in his case.” Garrymore, ¶39. As a result, we found
his argument “too undeveloped to undertake a distinctive application of state
constitutional principles,” and we accordingly did not consider the argument further.
Garrymore, ¶¶ 38-39. The identical situation exists here.
¶82 Moreover, Appellants conceded in their reply brief that “Plaintiffs have not raised
the issue of the constitutionality of the MHRA . . . .” Accordingly, we decline to address
this issue further.
CONCLUSION
¶83 The District Court did not err in dismissing Counts I and IV of the Appellants’
complaint. The gravamen of these constitutional and emotional distress claims is
political discrimination, and these claims are therefore governed by the exclusivity 30 provisions of the MHRA. Moreover, Edwards’ violation of privacy claims relate to his
discrimination claims under the MHRA, which have been finalized by the HRB. Thus,
irrespective of whether these claims were covered by the CBA itself, Edwards, Kohm,
and Zrowka were required to submit them to the HRB. Because all of the Appellants
failed to present the claims in Counts I and IV before the HRB in the context of a claim
for discrimination, none of the Appellants may now pursue these claims in District Court.
¶84 However, the District Court did err in concluding that the statutory discrimination
and wage claims of Edwards, Kohm, and Zrowka were covered by the CBA. The
statutory wage claims of these Appellants may be presented in the District Court.
¶85 Moreover, Kohm and Zrowka are not prohibited from pursuing their
discrimination claims in District Court since they properly presented them to the HRB
and were issued “right to sue” letters. Edwards may not, however, bring a discrimination
claim since his discrimination claim was resolved by the HRB and has not been appealed.
¶86 Doe, St. Onge, and Goaziou are not covered by the CBA. Appellants Doe, St.
Onge, and Goaziou filed claims of violations of their constitutional rights as well as
claims of intentional or negligent infliction of emotional distress. The gravamen of these
constitutional and emotional distress claims is political discrimination. Doe and Goaziou
filed MHRA complaints and were issued “right to sue” letters. Their claims remain for
resolution before the District Court. Moreover, the statutory wage claims of Doe and St.
Onge also remain for resolution before the District Court.
¶87 Accordingly, we affirm in part, reverse in part, and remand for further proceedings
consistent with this Opinion. 31 /S/ JAMES A. HAYNES District Court Judge James A. Haynes sitting for former Chief Justice Karla M. Gray
We concur:
/S/ W. WILLIAM LEAPHART /S/ PATRICIA O. COTTER /S/ JOHN WARNER /S/ JAMES C. NELSON /S/ BRIAN MORRIS /S/ JIM RICE