DA 06-0244

IN THE SUPREME COURT OF THE STATE OF MONTANA

2008 MT 63

PATRICIA A. SAUCIER, by Mary Mallory,

her Limited Guardian,

 Plaintiff and Appellant

 v.

McDONALD’S RESTAURANTS OF MONTANA,

INC., a Montana corporation; McDONALD’S

CORPORATION, a Delaware corporation, and

ALEX KEETON,

 Defendants and Appellees,

and

JOHN DOES 1-3,

 Defendants.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and For the County of Yellowstone, Cause No. DV-2003-279

Honorable Gregory R. Todd, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Brent R. Cromley, Nancy Bennett, Moulton, Bellingham, Longo 

& Mather, P.C., Billings, Montana

For Appellees McDonald’s Restaurants and McDonald’s Corporation:

James M. Shore, Zahraa Wilkinson, Stoel Rives LLP, Seattle, Washington

Bruce F. Fain, Murphy, Kirkpatrick & Fain, LLP, Billings, Montana

Submitted on Briefs: January 10, 2007

 Decided: February 26, 2008

February 26 2008
2

Filed:

__________________________________________

Clerk
3

Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1 Mary Mallory (“Mallory”), acting as limited guardian for her niece Patricia A.

Saucier (“Saucier”), filed this suit on Saucier’s behalf in the District Court of the 

Thirteenth Judicial District, Yellowstone County, asserting tort claims and discrimination 

claims against McDonald’s Corporation and McDonald’s Restaurants of Montana, Inc. 

(collectively “McDonald’s”) and Alex Keeton. The District Court granted summary 

judgment in favor of the defendants on all claims except the discrimination claims against 

Alex Keeton. Mallory appeals.

¶2 We consider the following issues:

¶3 (1) Did the District Court err in concluding that Saucier’s tort claims are barred as 

a matter of law?

¶4 (2) Did the District Court err in concluding that McDonald’s sufficiently 

established an affirmative defense to Saucier’s discrimination claims?

¶5 We affirm in part and reverse and remand in part.

FACTUAL AND PROCEDURAL BACKGROUND

¶6 Saucier was born in Billings, Montana on September 9, 1977. The record 

indicates that six months after her birth she became afflicted with spinal meningitis which 

significantly and permanently impaired her brain function. After her parents divorced in 

1983, she lived at times with her mother in Montana, and at times with her father in 

Mississippi. While the record contains few details about her early childhood, it does 

indicate that Saucier received special education and speech therapy through the public 

school system. When Saucier reached the age of eleven, her mother contacted the 
4

Montana Department of Family Services, apparently seeking assistance in caring for 

Saucier. Subsequently, under conditions which are not made clear in the record, Saucier 

was placed in the Deaconess Psychiatric Center in Billings. She also spent time at the 

Rivendell Psychiatric Hospital and a foster home. Apart from her temporary placements 

with these institutions, Saucier lived primarily with her aunt, Mallory.

¶7 In December of 1989, shortly after Saucier had reached the age of twelve, the 

District Court of the Thirteenth Judicial District, Yellowstone County, found her to be 

“seriously mentally ill” and ordered her committed to Rivendell Psychiatric Center in 

Billings pursuant to § 53-21-127, MCA, where Dr. Ralph Yaney, a psychiatrist,

conducted an assessment of her. In his written report, Dr. Yaney determined that Saucier 

suffered from “severe to moderate mental retardation.” He also determined that Saucier 

“is functioning at the age of 2 or 3 or 4 emotionally” and that she “seems to have no 

ability to understand right or wrong.” Thus, Dr. Yaney did not conduct any 

psychological testing, as he deemed Saucier to be functioning “at too low of a level to 

allow any psychological assessment.” Despite these conclusions, he stated that 

placement at the Rivendell Psychiatric Center was not appropriate for Saucier. Rather, 

Dr. Yaney concluded, she needed “either a trial in a psychiatric hospital for children 

and/or ultimately institutional care.” In this regard, he noted that Saucier’s parents 

refused to take her back into their care, and her aunt no longer felt that she could care for 

Saucier.

¶8 During the subsequent years, Saucier resided in several residential treatment 

homes in Montana, Wyoming, and Idaho. When she reached the age of eighteen, Saucier 
5

was placed at the Milk River Group Home in Glasgow, Montana. The records from her 

time at this institution state that she was assessed by staff members as being 

“at risk of emotional, physical, sexual and financial exploitation.” Additionally, under 

circumstances which are not made clear in the record, a case manager at the home 

prepared a “Certification of Disability” regarding Saucier and sent it to the Montana 

Department of Motor Vehicles. This document stated that, based on medical and 

psychological reports, Saucier was considered permanently disabled pursuant to 

§ 39-30-103, MCA.

¶9 The record indicates that in 1998, when Saucier reached the age of twenty-one, 

she returned to Billings. Thereafter, she was able to live on her own in an apartment

provided by the Billings Housing Authority, with monitoring and assistance provided by 

local YWCA officials apparently affiliated with a state sponsored social-services 

program. She received Social Security disability benefits and supplemented this income 

by periodically working part-time jobs, such as washing dishes at a restaurant and doing 

laundry at a hotel. While she was permitted to retain and spend the income she received 

from working, her disability benefits were directed to YWCA officials who ensured that 

those funds were used to pay her rent, utilities, and other bills. Additionally, the YWCA 

provided various activities in which Saucier participated, including the Special Olympics.

¶10 In August of 2001, local officials sent Saucier to Dr. Debra Sheppard, a 

neuropsychologist, for psychological evaluation apparently in connection with the Social 

Security disability benefits program. Dr. Sheppard rendered a report stating that Saucier 

was having difficulty maintaining employment and that she “has a ‘trainer’ who comes in 
6

to help her with household chores as she is not able to do these independently.” The 

case-worker who accompanied Saucier to this evaluation disclosed that “Saucier requires 

an abundance of repetition to establish comprehension.”

¶11 Dr. Sheppard’s report also states that “Saucier’s responses resulted in a Full Scale 

IQ of 57” which “places her overall intellectual skills in the Extremely Low range of 

intellectual functioning or below the first percentile when compared to a group of her 

same aged peers.” In further detail, Dr. Sheppard’s report states:

Ms. Saucier earned a Verbal IQ of 65, which is in the Extremely Low 

range. She performed within the mildly impaired range on tasks 

measuring her rote memory for numbers and practical judgment. Moderate 

impairment was observed on tasks assessing her vocabulary skills, ability 

to recognize abstract relationships, and general fund of information. 

Severe impairment was observed on a task requiring mental computational 

skills.

Ms. Saucier’s Performance IQ of 55 is in the Extremely Low range. She 

performed within the moderate impaired range on tasks tapping abilities 

and the separation of essential from unessential detail, visual-motor 

coordination, the recognition of spatial relationships and abstract reasoning. 

Severe impairment was observed on a task tapping abilities in temporal 

sequencing.

As a result of this assessment, Dr. Sheppard concluded that Saucier “will require 

significant assistance for the foreseeable future.”

¶12 In October of 2001, shortly after Dr. Sheppard rendered her assessment, Saucier, 

now twenty-four, applied for employment at the McDonald’s restaurant on Central 

Avenue in Billings. Two friends assisted her in filling out the application, and she was 

subsequently hired by the restaurant manager, Alex Keeton (“Keeton”), to work as a 

“lobby person.” Saucier worked approximately fifteen to twenty hours per week in this 

“auxiliary position,” as McDonald’s identified it, which entailed cleaning the dining area 
7

and restrooms, and hauling garbage to the dumpster. While she initially worked a 

lunch-time shift, Saucier was transferred to a shift later in the afternoon because high 

school students subjected her to teasing during the lunch hour.

¶13 Approximately four months after Saucier began her job at McDonald’s, she 

became involved in a sexual relationship with Keeton, who was married. Keeton’s 

conduct with Saucier, particularly in regard to his capacity as restaurant manager, and the 

alleged negligence of McDonald’s in connection therewith, are the underlying subjects of 

this litigation.

¶14 Keeton admits that he engaged in secret episodes of “hugging and holding” with 

Saucier at McDonald’s, in a stockroom located in the restaurant’s basement. According 

to Saucier, the physical contact in these incidents was such that Keeton achieved orgasm. 

Keeton also admits that he had sexual intercourse with Saucier on two occasions after the 

night shift ended, with the first of these occurring on Valentine’s Day in 2002. These 

incidents occurred when Keeton took Saucier to deposit the restaurant’s cash at a bank, 

and then drove her in “the company car” to the outskirts of Billings. The record suggests 

that Keeton may have changed Saucier’s work schedule to facilitate these encounters in 

the McDonald’s vehicle. Additionally, Keeton admits that he had sexual intercourse with 

Saucier at her apartment on one occasion. According to Saucier, this incident also 

occurred after they had made a bank deposit following an evening shift. 

¶15 During the course of the relationship, Keeton admits, he told Saucier that he loved 

her “on many occasions.” Keeton also admits that he knew Saucier was mentally 

disabled. As Keeton put it, he knew that she was “unable to solve complex problems.” 
8

Further, Keeton admits that he told Saucier not to tell anyone about their sexual 

relationship, explaining to her that such disclosure “could hurt both of us.”

¶16 Although Saucier asserts that she “didn’t like” some of Keeton’s advances, and 

that she asked him to stop at times, she has stated that she was “in love” with him. She 

has also stated that she did not actually love him, and yet told him she did. In explaining 

why she made this statement to him, Saucier has stated: “Because I didn’t know what 

else to say. I don’t have a good comprehend or speak. I just do what people do.” 

¶17 In addition to repeatedly telling Saucier that he loved her, Keeton admits he also 

told her that he might leave his wife and that, if that happened, he “would like to marry 

[Saucier].” Further, according to Saucier, Keeton told her that he could “have a lot of 

women” because he is a Mormon.

¶18 In late March or early April of 2002, Keeton told Saucier that they could spend 

time together during a week in April when his wife was scheduled to be out of town. 

Specifically, Keeton admits he told Saucier that if she had the time off work, they would 

spend a “mini-honeymoon week” at his house. Consequently, Saucier submitted a 

written request to be excused from work for that entire week, and Keeton approved the 

request in his capacity as the restaurant manager. According to Saucier, Keeton directed 

her to submit this request.

¶19 On April 4, 2002, Keeton dropped his wife off at the airport and drove to Saucier’s 

apartment, where she then packed clothes and other items for a week-long stay at 

Keeton’s residence. Keeton then drove Saucier to his house and they engaged in sexual 

intercourse. Although he led Saucier to believe that they would spend the entire week 
9

together at his residence, Keeton drove Saucier back to her apartment shortly after their 

sexual encounter, and told her that they would not continue their relationship. 

¶20 Thereafter, Saucier contacted her older sister, Sandra Sanderson (“Sanderson”), 

and reported that she “was having problems at McDonald’s” with “a guy named Alex

[Keeton].” According to Sanderson, Saucier reported that “he had taken [her] off the 

[work] schedule, Alex did, and she was concerned, because she needed the money.” 

Ultimately, Saucier informed Sanderson about the sexual activity between her and 

Keeton.

¶21 Sanderson called McDonald’s and reported Keeton’s conduct. In response, 

McDonald’s sent Saucier a letter stating that she could return to the restaurant and work 

her regularly scheduled shifts. When two members of McDonald’s management first 

questioned Keeton about his conduct with Saucier, he denied that they had a sexual 

relationship. Shortly thereafter, however, Keeton admitted his sexual relationship with 

Saucier, and McDonald’s terminated his employment.

¶22 As noted above, Keeton repeatedly told Saucier he loved her, and also expressed a 

desire to marry her. The record suggests this had a significant impact on Saucier. As 

YWCA case-worker Terry Baptiste testified in deposition, Saucier is “desperate” for 

attention. Not surprisingly, Dr. Sheppard determined approximately five months after the 

relationship with Keeton had ended, that Saucier still “appears to be fixed on the belief 

that [Keeton] will honor promises made to her regarding the continuation of a more 

permanent relationship.”
10

¶23 Shortly after Keeton’s conduct was exposed, legal counsel was obtained for 

Saucier and her aunt, Mallory, was appointed as her limited guardian for the purpose of 

this litigation. Pursuant to the Montana Human Rights Act, § 49-2-303, MCA, Mallory 

filed a Complaint in June of 2002 on Saucier’s behalf with the Human Rights Bureau of 

the Department of Labor and Industry. The Complaint, which was filed against Keeton 

and McDonald’s Corporation, alleged inter alia that: (1) Keeton discriminated against 

Saucier on the basis of her gender and also on the basis of her disability by subjecting her 

to a sexually hostile and offensive work environment; and (2) McDonald’s Corporation 

failed to take effective action to prevent Keeton’s discriminatory conduct.

¶24 In December of 2002, after conducting an investigation, the Human Rights Bureau 

issued its Investigative Report concluding that the relationship between Keeton and 

Saucier had been consensual. Thus, the Bureau concluded that the allegations of 

discrimination were not supported by a preponderance of the evidence. Accordingly, the 

Complaint was dismissed and the Bureau provided notice that Mallory was entitled to 

pursue the discrimination claims in district court.

¶25 In August of 2002, while the Human Rights Bureau was engaged in its 

investigation, Dr. Sheppard again conducted a psychological evaluation of Saucier. The 

results were consistent with the results of the assessment Dr. Sheppard had made one 

year earlier, before Saucier began working at McDonald’s. Again, the testing 

demonstrated that Saucier possesses “a Full Scale IQ of 57.” Additionally, Dr. Sheppard 

conducted an “adaptive behavior” assessment, which measures language skills, “daily 

living” skills, and socialization skills. The results of this assessment demonstrated that 
11

Saucier’s “level of adaptive functioning overall is equivalent with what would be 

expected of a child age 8 years, 7 months.” Ultimately, Dr. Sheppard concluded her 

report in a manner consistent with the previous year’s assessment, stating: “It is highly 

recommended that consideration be given toward appointing a guardian for Ms. Saucier. 

She clearly needs assistance in making decisions regarding her welfare.” 

¶26 Shortly thereafter, in September of 2002, counsel for Saucier sought 

Dr. Sheppard’s opinion regarding Saucier’s capacity to appreciate the consequences of a 

sexual relationship, her capacity to welcome or reject sexual advances, and her capacity 

to enter into contracts. In response, Dr. Sheppard opined that while Saucier has the 

ability to seek out or reject sexual advances, she possesses an “extremely limited 

capacity” to appreciate the consequences attendant to a sexual relationship. Dr. Sheppard 

also opined that Saucier was not capable of entering into contracts because of “her state 

of mild mental retardation and impaired practical/social judgment.” 

¶27 In the spring of 2003, Mallory filed the instant action in the District Court, on 

Saucier’s behalf, against McDonald’s and Keeton, as well as other McDonald’s 

employees identified only as “John Does 1-3.” The Complaint alleged, inter alia, 

that: (1) Keeton “made sexual advances and engaged in offensive conduct of a sexual 

nature” toward Saucier; (2) Keeton, with the consent of McDonald’s, “required [Saucier] 

to work late hours with him, and even removed her from the weekly work schedule, so 

that she would be available for sexual relations and his sexual gratification”; (3) Keeton, 

with the consent of McDonald’s, required Saucier to work the closing shift and then used 

“the car provided by McDonald’s of Montana to make night deposits and, under the 
12

pretext of driving [Saucier] home, would then take [her] to remote areas of Billings in the 

McDonald’s company car and have sexual intercourse with her”; (4) Saucier “lacks the 

mental capacity to understand or appreciate the consequences of a sexual relationship” 

and she “was not able to consent to any of the sexual misconduct of Keeton”; 

(5) McDonald’s “entered into a special relationship of custody and control over 

[Saucier]” during her employment with the restaurant; (6) McDonald’s failed to 

adequately train, supervise, and take proper precautions for the safety of its employees, 

thereby allowing Keeton to take advantage of Saucier, which he did in the course and 

scope of his employment with the restaurant; (7) the Defendants “discriminated against 

[Saucier] on the basis of her sex and disability by creating and subjecting [her] to a 

sexually hostile and offensive work environment”; (8) the Defendants acted with actual 

malice, as evidenced by a “deliberate, reckless, and intentional disregard for the high 

probability of injury” to Saucier; and (9) Saucier suffered damages as a result of the 

Defendants’ acts and omissions. Pursuant to these allegations, the Complaint asserted 

various tort claims, along with claims of gender discrimination and disability 

discrimination, against both Keeton and McDonald’s. Finally, the Complaint requested 

both compensatory and punitive damages.

¶28 During the course of the litigation, Dr. James English, a neuropsychologist, 

conducted a psychological evaluation of Saucier, at the request of McDonald’s. Among 

other things, his report states that during the testing Saucier “was overwhelmed with tasks 

that required her to repeat and recall any form of verbal material.” The report further 

states that Saucier’s “logical grammatical reasoning skills were generally consistent with 
13

the 11- to 12-year-old range.” Based on the various forms of testing, Dr. English 

determined: “Her capacity to reason is generally consistent with her IQ and in the range 

similar to the lower 5 or 6% of the adult population. That is, her reasoning abilities are 

not unlike those of an 11- or 12-year-old child.” Despite these findings, however, Dr. 

English concluded that Saucier has the capacity to consent to a sexual relationship, 

stating she “commands a basic understanding and knowledge base about sex” and 

“understands the physiological consequences of sexual intercourse to the extent that she 

utilizes birth control.”

¶29 Keeton and McDonald’s secured separate counsel and each moved independently 

for summary judgment on Saucier’s tort claims. In response, the District Court entered 

separate orders granting summary judgment in favor of both Keeton and McDonald’s, 

concluding that Saucier’s tort claims are barred by the Montana Human Rights Act.

¶30 Additionally, Keeton and McDonald’s each moved independently for summary 

judgment on Saucier’s gender discrimination claim and her disability discrimination 

claim. The District Court then issued an order granting summary judgment on the merits 

in favor of McDonald’s, and another order denying Keeton’s motion. Subsequently, with 

the only remaining causes of action being the two discrimination claims against Keeton, 

he entered into a written agreement with Mallory whereby he stipulated to an entry of 

judgment in Saucier’s favor. Thus, the District Court entered judgment against Keeton 

for the amount he and Mallory agreed upon, which was $500,000.00.
14

¶31 Mallory now appeals the District Court’s orders granting summary judgment on 

Saucier’s tort claims in favor of McDonald’s and Keeton, as well as the order granting 

summary judgment on her discrimination claims against McDonald’s. 

STANDARD OF REVIEW

¶32 We conduct de novo review of summary judgment orders, performing the same 

analysis as does a district court pursuant to Rule 56 of the Montana Rules of Civil 

Procedure. LaTray, v. City of Havre, 2000 MT 119, ¶ 14, 299 Mont. 449, ¶ 14, 999 P.2d 

1010, ¶ 14.

¶33 Summary judgment may be granted only when there is a complete absence of 

genuine issues of material fact and the moving party is entitled to judgment as a matter of 

law. M. R. Civ. P. 56(c); LaTray, ¶ 14. To determine whether genuine issues of material 

fact exist, we consider “the pleadings, depositions, answers to interrogatories, and 

admissions on file, together with the affidavits, if any.” M. R. Civ. P. 56(c). In doing 

so, we must view all evidence in the light most favorable to the non-moving 

party. LaTray, ¶ 15. Thus, as we have held, all reasonable inferences that may be drawn 

from the evidence must be drawn in favor of the party opposing summary judgment. 

LaTray, ¶ 15.

¶34 The party seeking summary judgment bears the initial burden of establishing a 

complete absence of genuine issues of material fact. LaTray, ¶ 14. To satisfy this 

burden, the moving party must “exclude any real doubt as to the existence of any genuine 

issue of material fact” by making a “clear showing as to what the truth is.” Toombs v. 

Getter Trucking, Inc., 256 Mont. 282, 284, 846 P.2d 265, 266 (1993). If the moving 
15

party satisfies this requirement, the burden then shifts to the non-moving party to set forth 

specific facts, not merely denials, speculation, or conclusory statements, in order to 

establish that a genuine issue of material fact does indeed exist. M. R. Civ. P. 56(e); 

LaTray, ¶ 14. Finally, if no genuine issues of material fact exist, it must then be 

determined whether the facts actually entitle the moving party to judgment as a matter of 

law. M. R. Civ. P. 56(c).

DISCUSSION

¶35 (1) Did the District Court err in concluding that Saucier’s tort claims are 

barred as a matter of law?

¶36 The district court concluded that Saucier’s tort claims were barred by the 

exclusivity provision of the Montana Human Rights Act (“MHRA”). In connection with 

this ruling, we review the salient provisions of the MHRA.

¶37 Title 49 of the Montana Code, which has come to be known as the MHRA,

declares that the right to be free from discrimination on the basis of one’s gender or 

mental disability, among other attributes including race, age, and religion, “is recognized 

as and declared to be a civil right.” Section 49-1-102(1), MCA. Pursuant to this 

declaration, the MHRA prohibits particular types of discrimination in various settings 

such as employment, education, and public accommodations, among others. Sections 

49-2-303 to 49-2-309, MCA.1

 

1

 Because many portions of the MHRA have been revised since its enactment, we note here that 

all statutory references in this Opinion are to the 2001 version of the MHRA, which was in effect 

during the time period relevant to this case. See Boettcher v. Montana Guaranty Fund, 2007 MT 

69, ¶ 14, 336 Mont. 393, ¶ 14, 154 P.3d 629, ¶ 14.
16

¶38 With respect to the employment setting, the MHRA defines unlawful 

discrimination with general terms and also by listing specific prohibited acts. In general 

terms, unlawful discrimination in employment is statutorily defined as the practice of 

making distinctions in “a term, condition, or privilege of employment” based on 

attributes such as age, gender, or mental disability, when the reasonable demands of the 

position do not require such distinction. Section 49-2-303(1)(a), MCA. The MHRA also 

designates particular conduct in employment as unlawfully discriminatory, such as 

differentiating in employees’ compensation based on race, refusing to employ an 

individual based on his or her religious beliefs, and utilizing an employment application 

that expresses a limitation as to age when the limitation is not based on a bona fide 

occupational qualification. Section 49-2-303(1)(a), (c), MCA. While this statutory 

definition of unlawful discrimination in employment has not been legislatively altered in 

relevant part since its enactment, it has been expanded by the decision in Harrison v. 

Chance, 244 Mont. 215, 220-23, 797 P.2d 200, 203-05 (1990), where this Court held that 

“sexual harassment,” including some forms of tortious conduct motivated by 

discriminatory intent, is a form of sexual discrimination. 

¶39 In conjunction with its anti-discrimination provisions, the MHRA establishes 

procedures and remedies, separate from tort law, for legal redress of conduct which falls

within the definition of unlawful discrimination. The Legislature has mandated that this 

remedial scheme is the exclusive means of legal redress for unlawful discrimination.2 

 

2

 This exclusivity provision has not been legislatively altered in relevant part since its enactment

in 1987.
17

Section 49-2-509(7), MCA. Consequently, a plaintiff subjected to acts which constitute 

unlawful discrimination in employment may not maintain a traditional tort action based 

on that conduct; rather, the plaintiff is limited to the specific procedures and remedies 

established in the MHRA. Harrison, 244 Mont at 220, 797 P.2d at 203. To provide 

context for our discussion here, we now review some of the primary elements of this 

statutory scheme.

¶40 Among other things, this exclusive remedial scheme requires that allegations of 

unlawful discrimination in employment must be brought in a complaint filed with the 

Human Rights Bureau of the Department of Labor and Industry (“Department”) within 

180 days after the alleged unlawful discriminatory practice occurred or was discovered. 

Section 49-2-501(1), (4)(a), MCA; Admin. R. M. 24.8.201(1). 

¶41 A timely filed complaint triggers an investigation by the Department. Section 

49-2-504(1)(a), MCA. If the Department determines that the allegations are supported by 

a preponderance of the evidence, it must “attempt to achieve a resolution of the complaint 

by conference, conciliation, and persuasion.” Section 49-2-504(1)(a), MCA. If those 

efforts are unsuccessful, the Department must then hold an administrative hearing on the 

complaint. Section 49-2-505(1), MCA. After the hearing, if the Department finds that 

unlawful discrimination has in fact occurred, it must issue an order directing the accused 

party to refrain from such discriminatory conduct. Section 49-2-506(1), MCA. In 

addition, the Department is vested with the authority to: 

(a) prescribe conditions on the accused’s future conduct relevant to 

the type of discriminatory practice found;
18

(b) require any reasonable measure to correct the discriminatory 

practice and to rectify any harm, pecuniary or otherwise, to the person 

discriminated against;

(c) require a report on the manner of compliance.

Section 49-2-506(1), MCA. Punitive damages are not available. Section 49-2-506(2), 

MCA.3

¶42 Thereafter, a party may appeal to the Human Rights Commission which, after an 

administrative hearing, may dismiss the complaint or grant any of the same components 

of relief which the Department is authorized to grant. Sections 49-2-505(4), 49-2-506, 

49-2-507, MCA. Then a party may commence a civil action in district court. Section 

49-2-509(5), MCA. However, this type of civil action “may not be entertained by a 

district court other than by the procedures specified” in the MHRA. Section 

49-2-509(6), (7), MCA. Thus, a discrimination claim in district court may not be tried 

before a jury because the MHRA provides for only a “contested case hearing” conducted 

in accordance with the Montana Rules of Civil Procedure. Sections 49-2-505, 49-2-509, 

MCA; Vainio v. Brookshire, 258 Mont. 273, 276-77, 852 P.2d 596, 599 (1993). 

Additionally, if the district court does conclude that unlawful discrimination has 

occurred, it may not grant any relief other than that which the Department or the Human 

Rights Commission are authorized to grant pursuant to § 49-2-506, MCA.4 Section 

49-2-509(6), (7), MCA.

 

3

 The MHRA provides one exception to this rule, allowing district courts to assess limited 

punitive damages for repeated violations of housing discrimination law. Section 49-2-510(6), 

MCA.

4

 The MHRA provides one exception to this rule, allowing district courts to award reasonable 

attorney fees to the prevailing party. Section 49-2-509(6), MCA.
19

¶43 Conversely, if the Department initially determines that the allegations of unlawful 

discrimination are not supported by a preponderance of the evidence, it must dismiss the 

complaint. Section 49-2-509(3)(c), MCA. The complainant may then seek review with 

the Human Rights Commission, after which a civil action may be commenced in district 

court. Section 49-2-509(3)-(5), MCA. Again, however, the case may not be tried before 

a jury, §§ 49-2-505, 49-2-509(7), MCA; Vainio, 258 Mont. at 276-77, 852 P.2d at 599, 

and the district courts’ authority to grant relief in such an action is no greater than the 

authority of the Department or the Human Rights Commission in the administrative 

proceedings, § 49-2-509(6), (7), MCA.5

¶44 As noted, these procedures and remedies constitute the exclusive means of redress 

for conduct which falls within the MHRA’s definition of unlawful discrimination. 

Section 49-2-509(7), MCA. That brings us to the first question we must answer to 

resolve the first issue in this appeal—that is, whether the conduct at issue here falls 

within the MHRA’s definition of unlawful “discrimination.” 

 

5

 In Romero v. J & J Tire, 238 Mont. 146, 151, 777 P.2d 292, 295-96 (1989), the plaintiff argued 

that because the MHRA does not allow for jury trial, it violates the fundamental constitutional 

right to jury trial in civil actions, as provided for in Article II, Section 26, of the Montana 

Constitution. This Court rejected that argument, reasoning that when the Legislature creates new 

statutory rights, it may also specify a means of adjudication for those rights other than jury trial. 

Romero, 238 Mont. at 151, 777 P.2d at 295-96 (citation omitted). Notably, however, the Romero

decision was rendered before the Harrison decision expanded the MHRA’s definition of

discrimination to include some forms of tortious conduct which have always been vindicated by

way of jury trial. Of course, it is not only plaintiffs who would seek a jury trial where a 

discrimination claim proceeds to district court. For example, in Vainio, 258 Mont. at 275-81, 

852 P.2d at 598-601, where the Human Rights Commission issued a compensatory award of

$20,000.00 for damages arising from sexual harassment, the defendant then argued on appeal, 

like the plaintiff did in Romero, that the MHRA is unconstitutional because it does not allow for 

jury trial. This Court declined to declare the MHRA unconstitutional on that basis, rendering a 

cursory analysis relying on Romero which had already rejected such an argument (albeit prior to 

the Harrison decision). Vainio, 258 Mont. at 276-77, 852 P.2d at 599.
20

¶45 In the proceedings below, the District Court determined that Keeton’s alleged 

conduct amounted to “sexual harassment.” Thus, because “sexual harassment” is a form 

of sexual discrimination prohibited by the MHRA, Harrison, 244 Mont. at 221, 797 P.2d 

at 204, and because the MHRA’s remedial scheme provides the exclusive means of 

redress for sexual discrimination in employment, § 49-2-509(7), MCA, the District Court 

concluded that Saucier’s tort claims are barred as a matter of law.

¶46 On appeal, McDonald’s argues that the gravamen of Saucier’s complaint is 

“sexual harassment,” and thus the MHRA’s exclusivity provision bars any tort action 

based on Keeton’s alleged acts, just as the District Court concluded. In support of this 

argument, McDonald’s cites our decisions in Harrison, Bruner v. Yellowstone County, 

272 Mont. 261, 263-64, 900 P.2d 901, 903 (1995), and Arthur v. Pierre Ltd., 2004 MT 

303, 323 Mont. 453, 100 P.3d 987. Conversely, Mallory argues that Keeton’s conduct 

went far beyond mere “sexual harassment” prohibited by the MHRA. In support of this 

argument, Mallory distinguishes the conduct at issue in Harrison, Bruner, and Arthur, 

and asserts that Keeton’s actions amount to criminal assault. We now turn to these cases.

¶47 In Harrison, the plaintiff filed an action in district court, alleging that her male 

employer had subjected her to repeated “unwelcome sexual advances” and “sexually 

explicit innuendos and offers”; that on one occasion he “forcefully kissed her against her 

will”; and that he ultimately demanded “she either ‘put out or get out.’ ” Harrison, 244 

Mont. at 218, 223, 797 P.2d at 202, 205. Based on these allegations, the plaintiff asserted 

various tort claims, including battery and intentional infliction of emotional distress. 

Harrison, 244 Mont. at 223, 797 P.2d at 205.
21

¶48 In attempting to distinguish her employer’s conduct from the type of conduct 

prohibited by the MHRA, the plaintiff argued that the “alleged acts were sexual 

harassment, not sexual discrimination.” Harrison, 244 Mont. at 220, 797 P.2d at 203. 

We held that sexual harassment is a form of sexual discrimination prohibited by the 

MHRA. Harrison, 244 Mont. at 221, 797 P.2d at 204. In rendering this holding, we 

reasoned: “When sexual harassment is directed at an employee solely because of gender, 

the employee is faced with a working environment fundamentally different from that 

faced by an employee of the opposite gender. That difference constitutes sexual 

discrimination in employment.” Harrison, 244 Mont. at 221, 797 P.2d at 204 (internal 

citation omitted). 

¶49 We then observed that sexual harassment can be framed in terms of numerous tort 

theories, and stated that this Court will not condone “such recharacterization [by tort 

terminology] of what is at heart a sexual discrimination claim.” Harrison, 244 Mont. at 

223, 797 P.2d at 205. Finally, while acknowledging the tortious nature of the employer’s 

alleged acts, we ultimately focused on the “gravamen” of the complaint and thereby 

determined that the alleged conduct amounted to sexual harassment prohibited by the 

MHRA. Harrison, 244 Mont. at 222-23, 797 P.2d at 205. Consequently, we held that 

the MHRA’s exclusivity provision applied—i.e., that the plaintiff’s sole means of 

recourse was through the MHRA’s remedial scheme and she was therefore barred from 

pursuing a tort action in district court. Harrison, 244 Mont. at 223, 797 P.2d at 205.

¶50 In Bruner, a secretary for the Yellowstone County Attorney’s Office filed an 

action in district court alleging that she had been subjected to sexual harassment by a 
22

male deputy county attorney, and asserting a tort claim of negligent retention.6 Bruner, 

272 Mont. at 264, 900 P.2d at 903. The alleged conduct at issue was what we described 

as “unprofessional behavior” of a sexually harassing nature for which the perpetrator was 

required to attend a sexual harassment seminar and barred from spending time alone with 

the plaintiff at work. Bruner, 272 Mont. at 265-66, 900 P.2d at 904. As in Harrison, we 

looked to the gravamen of the complaint and concluded that “sexual harassment is at the 

foundation of her claim of negligent retention.” Bruner, 272 Mont. at 267, 900 P.2d at 

905. Thus, in accordance with Harrison’s holding that sexual harassment is a form of 

sexual discrimination prohibited by the MHRA, we concluded that the MHRA’s 

exclusivity provision applied and the plaintiff was therefore barred from pursuing a tort 

claim in district court. Bruner, 272 Mont. at 267, 900 P.2d at 905.

¶51 In Arthur, the plaintiff, Amber Arthur (“Arthur”), was employed as a dining-room 

waitress at a hotel. Arthur, ¶ 6. She filed an action in district court alleging that one of 

her male co-workers, James Kennedy (“Kennedy”), had harassed her in various ways. 

Arthur, ¶¶ 6, 12. Specifically, she alleged that Kennedy had made inappropriate 

comments to her regarding her body and her personal relationship with her boyfriend; 

that he followed her about the dining room while she worked; that he had restricted her 

movement on occasion by cornering her in the dining-room office or behind the bar; and 

that he “slapped her on the buttocks” in one instance. Arthur, ¶¶ 8, 25. Additionally, 

Arthur alleged that Kennedy had similarly pursued her while away from work by, among 

 

6

 The plaintiff also brought a claim for battery, but later conceded to dismissal of that claim 

during summary judgment proceedings.
23

other things, following her around town and appearing at her second job to bring her 

gifts. Arthur, ¶¶ 8-9. Based on these allegations, Arthur asserted the following causes of 

action: “(1) failure to provide a safe place to work, (2) negligent retention of Kennedy, 

(3) negligent supervision of Kennedy, (4) intentional infliction of emotional distress, 

(5) negligent infliction of emotional distress, and (6) sexual harassment under the 

Montana Human Rights Act.” Arthur, ¶ 12. 

¶52 In support of her tort claims, Arthur attempted to distinguish the alleged acts from 

the type of conduct that falls within the MHRA’s definition of sexual discrimination. 

Arthur, ¶ 18. In doing so, she argued that Kennedy’s conduct was “different-in-kind and 

distinct from sexually discriminatory conduct,” and that she “suffered injuries and 

damages of a greater degree than those typically stemming from workplace sexual 

harassment.” Arthur, ¶ 18. Arthur also argued that “Kennedy’s actions went beyond 

mere sexual harassment, escalating to criminal conduct such as sexual assault, stalking 

and intimidation.” Arthur, ¶¶ 18, 25. 

¶53 In response, we adhered to our approach in Harrison and Bruner, examining the 

nature of Arthur’s factual allegations to determine the gravamen of her complaint. 

Arthur, ¶¶ 25-26. In doing so, we referred to language from Harrison indicating that 

sexual harassment can consist of unwelcome sexual advances, requests for sexual favors, 

and other verbal or physical conduct of a sexual nature. Arthur, ¶ 25 (citing Harrison, 

244 Mont. at 221, 797 P.2d at 203). On that basis, we determined that Kennedy’s alleged 

acts amounted to verbal and physical conduct of a sexual nature which constitutes sexual 

harassment prohibited by the MHRA. Arthur, ¶ 25. 
24

¶54 As for the argument that Kennedy’s acts constituted “criminal conduct,” we 

reasoned: “the fact that sexually harassing conduct also may constitute criminal conduct 

does not necessarily mean that it is not sexual discrimination as contemplated by the 

MHRA.” Arthur, ¶ 25. In support of this rationale, we noted that this Court found the 

forcible kissing in Harrison to be “sexual harassment” contemplated by the MHRA even 

though it could have been deemed sexual assault. Arthur, ¶ 25 (citing Harrison, 244 

Mont. at 223, 797 P.2d at 205). We also noted: 

much of the conduct she alleges in support of her assertion that Kennedy’s 

conduct was criminal in nature occurred after her employment with the 

[hotel] ended. This includes Kennedy’s appearing outside her home, 

driving by her home at night and following her around town while she 

attended to personal and work-related activities, as well as being arrested 

for violating several restraining orders she obtained after she left the 

[hotel’s] employ.

Arthur, ¶ 26. 

¶55 Upon this analysis, we concluded that the alleged discriminatory conduct which 

occurred in the workplace—as opposed to that occurring after Arthur left her 

employment—did not constitute more than “mere sexual harassment” prohibited by the 

MHRA. Arthur, ¶ 26. Thus, because the MHRA exclusivity rule mandates that recourse 

for “sexual harassment” may only be pursued through the MHRA remedial scheme, 

Arthur was barred from pursuing tort claims. Arthur, ¶ 27.

¶56 While these cases do not provide a comprehensive definition of “sexual 

harassment” prohibited by the MHRA’s anti-discrimination provisions, they do provide 

general principles which aid in identifying the types of conduct properly characterized as 

such. First, “sexual harassment” includes some tortious conduct, such as “unwelcome 
25

sexual advances” and some forms of “verbal or physical conduct of a sexual nature.” 

Arthur, ¶ 25. Second, “sexual harassment” also includes some conduct that may be 

considered criminal in nature. Arthur, ¶ 25. Third, we have consistently looked to the 

nature of the acts alleged by the plaintiff, as opposed to the manner in which the 

complaint is framed, to determine the “gravamen” of the complaint. Our “gravamen” 

determination is made irrespective of the manner in which the complaint is framed 

because we realize that litigants can frequently employ tort terminology to improperly 

re-characterize “what is at heart a sexual discrimination claim.” Harrison, 244 Mont. at 

223, 797 P.2d at 205; Arthur, ¶¶ 25-27. Similarly, we also recognize that litigants may 

employ MHRA terminology to erroneously re-characterize a tort claim as a 

discrimination claim.

¶57 Thus, the bottom line is that the gravamen depends on the nature of the alleged 

conduct, and not upon the technical format of the complaint or procedural aspects of the 

case. This Court has, without exception, conducted the gravamen analysis with no regard 

for whether or not the plaintiff first pressed the claim as a MHRA action. See e.g., 

Harrison, 244 Mont. at 218, 223, 797 P.2d at 202, 205 (plaintiff initially pursued her 

claim by way of a tort action in district court, and we later concluded it was a 

discrimination claim); Bruner, 272 Mont. at 264-67, 900 P.2d at 903-05 (plaintiff first 

brought a discrimination claim pursuant to MHRA procedures, and then filed a tort action 

in district court); Shields v. Helena School District No. 1, 284 Mont. 138, 140-41, 149-50, 

943 P.2d 999, 1000, 1005-06 (plaintiffs initially pursued a tort action in district court, 

alleging disparate treatment by a school; we concluded it was a discrimination claim);
26

Arthur, ¶¶ 7, 9-12 (plaintiff first filed a discrimination claim pursuant to MHRA 

procedures, and then filed a tort action in district court).

¶58 As the foregoing precedent suggests, therefore, the fact that a claimant first 

characterizes the subject conduct as discrimination and pursues a MHRA action does not 

of itself establish conclusively what the gravamen of the claim actually is—the gravamen 

analysis has been the province of the court before which the question is ultimately 

presented.

¶59 With the foregoing principles in mind, we now turn to the case before us.

¶60 At the outset, we address several preliminary matters. First, we address a 

contention regarding the $500,000.00 consent judgment against Keeton. Mallory argues 

this Court should “hold that McDonald’s, as Keeton’s employer, is responsible for the 

judgment entered against Keeton.” We decline to do so because the District Court has 

not yet reached this issue and therefore has not taken any action which this Court could 

affirm or reverse. Arguments on this issue are properly presented to the District Court in 

the first instance. Accordingly, we will not address this argument further.

¶61 Second, McDonald’s asserts that Mallory has failed to appeal the District Court’s 

order granting summary judgment to Keeton on Saucier’s tort claims. We reject this 

argument because Mallory filed a Notice of Appeal which expressly states that she 

appeals the District Court’s order granting partial summary judgment in favor of Keeton. 

Moreover, in accordance with her Notice of Appeal, Mallory’s arguments in her briefing 

to this Court substantively address Saucier’s tort claims against both McDonald’s and 

Keeton, and they are the same arguments presented to the District Court. 
27

¶62 Third, we note that the Complaint Mallory filed in District Court asserted several 

tort claims, including the tort of “assault,” while also referring to Keeton’s conduct as a 

“sexual assault and battery.” The tort of assault is distinct from the tort of battery. As 

provided in the Montana Pattern Instructions, which are modeled after the Restatement 

(Second) of Torts, the tort of battery is “an intentional contact by one person with the 

person of another which is harmful or offensive,” while the tort of assault is “any 

intentional threat of harmful or offensive contact with another by force under 

circumstances which create a well founded fear of such contact, coupled with the 

apparent present ability to carry out the threat.” M.P.I.2d 9.01 (emphasis added) (citing 

Restatement (Second) of Torts §§ 13-34 (1965)). Mallory has not alleged or cited any 

evidence that Keeton ever communicated a threat of harmful or offensive contact or that 

Saucier was ever put in fear of such contact. However, the allegations and evidence do 

support a claim of battery.

¶63 It is well established that although harmful or offensive contact may constitute 

a battery, effective consent to such contact will bar recovery in tort. Restatement 

(Second) of Torts § 892A(1). However, to be effective, the consent must be rendered 

by one who has the capacity to consent—i.e., the capability to appreciate the nature, 

extent, and probable consequences of the conduct. Restatement (Second) of Torts

§ 892A(2) cmt. b.7 Here, Mallory alleged that Keeton’s sexual conduct with Saucier was 

intentional, harmful, and offensive, and that Saucier’s disability precluded her from 

 

7

 Although “no one suffers a legal wrong as the result of an act to which [he or she] freely 

consents,” there are “persons whom the law protects for reasons of policy, such as those who are 

mentally immature or otherwise incompetent.” Restatement (Second) of Torts § 892A(1) cmt. a.
28

effectively consenting to it. Thus, for the purposes of our analysis on appeal, this 

allegation will be considered as a claim for the tort of battery.

¶64 As for Saucier’s additional tort causes of action, the Complaint asserted claims for 

negligent supervision, failure to provide a safe workplace, “breach of fiduciary 

(custodial) duty,” negligent and intentional infliction of emotional distress, and 

“respondeat superior.” As Mallory has conceded, the first three claims are directed at 

McDonald’s, and not Keeton. The remaining tort claims (in addition to battery) are 

negligent and intentional infliction of emotional distress and “respondeat superior.” We 

note that respondeat superior is not a free-standing or independent tort cause of action; 

rather, it is a doctrine of the law of agency by which the consequences of one person’s 

actions may be attributed to another person. Restatement (Third) of Agency § 2.01 

Introductory Note (2006); Kornec v. Mike Horse Mining & Milling Co., 120 Mont. 1, 7-8, 

180 P.2d 252, 256 (1947); Vainio, 258 Mont. at 279, 852 P.2d at 600 (1993). Thus, this 

“claim” is not amenable to summary disposition as a stand-alone tort cause of action. It 

will be up to the District Court on remand to determine the merits of the theory’s 

application in this case. 

¶65 Next, pursuant to the applicable standard of review, we explain our assessment of 

the facts regarding the extent of Saucier’s disability. The litigants zealously dispute this 

issue. However, because McDonald’s is the party seeking to preclude a trial on the 

merits, we must view the facts in a light most favorable to Saucier, and we must draw all 

reasonable inferences in her favor. LaTray, ¶ 15. We have consistently followed this 

approach because summary judgment is an extreme remedy which should never 
29

substitute for a trial on the merits if a material factual controversy exists. Delaware v. 

K-Decorators, Inc., 1999 MT 13, ¶ 55, 293 Mont. 97, ¶ 55, 973 P.2d 818, ¶ 55.

¶66 At the heart of this case is the factual allegation that Saucier’s disability precluded 

her from effectively consenting to the sexual conduct of her supervisor, Keeton, in the 

employment setting. In support of this allegation, Mallory cites, inter alia, evidence of 

Saucier’s documented history as a mentally disabled individual; evidence of her limited 

IQ and limited level of “adaptive functioning”; evidence that her disability puts her at risk 

of sexual exploitation; and Dr. Sheppard’s conclusion that Saucier possesses an 

“extremely limited capacity” to appreciate the consequences attendant to a sexual 

relationship. In contesting this allegation, McDonald’s cites, inter alia, evidence that 

Saucier “functions very independently” by cooking her own meals and doing her own 

laundry at times; evidence that she received sex education while living in a group home; 

evidence that she has previously engaged in sexual relationships;8 and Dr. English’s 

conclusion that Saucier “commands a basic understanding and knowledge base about 

sex” and “understands the physiological consequences of sexual intercourse to the extent 

that she utilizes birth control.”

¶67 Viewing the conflicting evidence in a light most favorable to Saucier,9 and 

drawing all reasonable inferences in her favor, we conclude that McDonald’s has failed to 

carry its burden of establishing a complete absence of material factual issues regarding 

 

8

 We express no opinion as to whether evidence of any previous sexual relationship would be 

admissible at trial.

9

 We recognize that it is somewhat ludicrous to identify evidence of Saucier’s disability as 

“favorable” to her. We use this terminology here only in the sense that such evidence is 

favorable with respect to her limited guardian’s effort to obtain legal redress on Saucier’s behalf.
30

Saucier’s ability to effectively consent. Specifically, we conclude a jury could 

reasonably find that Saucier’s mental disability precluded her from effectively consenting 

to sexual conduct with a supervisor in an employment setting, particularly a supervisor 

with authority over her work schedule. Of course, the contrary evidence relied upon by 

McDonald’s could ultimately be persuasive to a jury. The point is that for purposes of 

summary judgment analysis, there is a genuine issue of material fact regarding Saucier’s 

ability to effectively consent, precluding summary disposition of this issue. 

¶68 Next, it is our task to determine what the gravamen of Saucier’s claim actually is. 

Again, construing the facts in Saucier’s favor, as we must do at this stage of the 

proceedings, we start with the proposition that the conduct complained of is 

non-consensual sex. The grave nature of this conduct sets it far apart from anything we 

have previously held to constitute “sexual harassment” under the MHRA. While the 

spectrum of conduct noted above covers a broad range of acts, including even some 

assaultive conduct, to hold that those acts stand on the same footing as non-consensual 

sex would profoundly minimize the grievous nature of such conduct. Thus, we conclude 

that comparison to the conduct in our previous cases provides no basis for holding that 

non-consensual sex falls within the definition of “sexual harassment” contemplated by 

the MHRA’s anti-discrimination provisions.

¶ 69 In this connection, we note the disparity between the criminal penalties for 

“discrimination” under the MHRA and the criminal penalties for sexual intercourse 

without consent. The MHRA designates unlawful discrimination in employment as a 

misdemeanor criminal offense punishable by no more than six months of imprisonment 
31

and a fine of no more than $500.00. Section 49-2-601, MCA. Conversely, under Title 45 

it is a felony offense to knowingly have sexual intercourse with a person whose mental 

condition renders him or her incapable of consent. Sections 45-5-503(1), 

45-5-501(1)(b)(i), 45-2-101(39), MCA. Reflecting the gravity of such conduct, our law 

requires a punishment of no less than two years imprisonment for this offense, and up to 

a life term of imprisonment and a maximum fine of $50,000.00. Section 45-5-503(2), 

MCA. While we are not faced here with a criminal prosecution, nonetheless the stark 

contrast between the statutory penalties underscores the significant distinction between 

the two categories of offense.

¶ 70 Simply put, nothing in the statutory scheme or our precedent supports the notion 

that non-consensual sex falls within the MHRA’s definition of discrimination. As such, 

it is apparent that we would have to drastically expand that definition in order to hold that 

it encompasses the conduct at issue here. While McDonald’s would have us do so, it fails 

to support such an undertaking. We are, after all, required to construe the definition of 

discrimination by viewing it in light of the statutory scheme in which it resides. State v. 

Branam, 2006 MT 300, ¶ 15, 334 Mont. 457, ¶ 15, 148 P.3d 635, ¶ 15. McDonald’s 

offers no explanation as to how such a revision of the definition of discrimination would 

be consistent with the rest of the MHRA.10 More importantly, McDonald’s offers no 

 

10 Even a cursory review of the statutory scheme reveals that serious questions could arise in this 

regard. For example, the MHRA mandates that, as the initial requirement in addressing a 

properly supported claim of unlawful discrimination, officials with the Department of Labor and 

Industry must attempt to resolve the issue by way of “conference, conciliation, and persuasion.” 

Section 49-2-504(1)(a), MCA. Suffice it to say, we have difficulty imagining that the 
32

legal authority that would justify such judicial interference with the statutory scheme. In 

fact, expanding the MHRA’s definition of discrimination in this manner would directly 

violate one of the most basic precepts governing this Court’s function—the long-standing 

mandate that we must not insert what the Legislature has omitted. Section 1-2-101, 

MCA. In short, there is no basis for this Court to insert conduct such as non-consensual 

sex into the MHRA’s definition of discrimination in employment.

¶71 In summary, we conclude that non-consensual sex goes beyond any reasonable 

conception of “sexual harassment” and falls outside the MHRA’s definition of 

“discrimination” in employment. Simply put, allegations of non-consensual sex sound in 

tort and not in discrimination.

¶72 Next, we address whether the District Court erred in concluding that Mallory’s tort 

claims were barred under the exclusivity provision of the MHRA. Here, Mallory initially 

brought this claim as a discrimination action and thus filed it with the Department. 

However, we have determined that her claim sounds in tort and not discrimination. The 

question of whether Mallory may therefore proceed with a tort action in district court

presents a conundrum which we will address in general and then specific terms, in the 

hopes of giving some instruction to the practitioner who must wade through this forum 

mine field.

¶73 In general terms, the question presented is this: If the Department concludes there 

is no cognizable discrimination claim, or if the reviewing court determines that the 

 

Legislature envisioned “conference, conciliation, and persuasion” as legitimate means of

addressing non-consensual sex.
33

gravamen of the case before it is not tort but is, rather, discrimination, may the litigant 

then pursue the other option? The answer to this question is a qualified yes. Provided the 

alternative claim or complaint is filed within the applicable law, including the statute of 

limitations, and provided the discrimination claim does not sound in tort or the tort claim 

in discrimination, the alternative case is not barred. Our recent decision in Vettel-Becker

v. Deaconess Medical Center, 2008 MT 51, ___ Mont. ___, ___ P.3d ___ is instructive.

¶74 In Vettel-Becker, the plaintiff pursued an employment discrimination claim under 

the MHRA after he was discharged from employment by Deaconess. Vettel-Becker, ¶¶ 2, 

23. However, only a few days later, he filed a complaint in district court alleging that his 

discharge was not for good cause. Vettel-Becker, ¶¶ 2, 23. Ultimately, the Department 

dismissed his claim. Vettel-Becker, ¶¶ 2, 23. Vettel-Becker then proceeded with his 

wrongful discharge claim in district court. Vettel-Becker, ¶¶ 2, 23. Deaconess moved for 

and was awarded summary judgment, the court concluding, among other things, that the 

MHRA provided the exclusive remedy for his discharge and discrimination claims 

because he raised the same facts in support of both claims. Vettel-Becker, ¶ 24. VettelBecker appealed the dismissal of his wrongful discharge claim and we reversed and 

remanded for a trial on the merits. Vettel-Becker, ¶ 25.

¶75 Pertinent to the case before us, we said in Vettel-Becker that, where a 

discrimination claim is disallowed, the claimant may pursue relief in the district court (in 

Vettel-Becker, the relief sought was under the Wrongful Discharge from Employment Act 

(“WDEA”)), “provided that claim is not premised upon ‘underlying allegations of 

. . . discrimination.’ ” Vettel-Becker, ¶ 37 (quoting Arthur, ¶ 18). Concluding that 
34

Vettel-Becker’s WDEA claim was not grounded in discrimination, we held that the 

district court erred in granting summary judgment to Deaconess on the grounds of 

MHRA exclusivity. Vettel-Becker, ¶¶ 37, 46. Arguably, the converse would also be true: 

If a claim is filed in district court, sounding in tort, and the court concludes that the claim 

is grounded in discrimination, then a claim for discrimination before the Department 

would not be barred, provided of course that the claimant complies with the statute of 

limitations which governs MHRA actions.

¶76 Our rationale in Vettel-Becker applies here. While Mallory sought relief for 

discrimination in the Department, she also sought relief subsequently in the District Court 

for tortious conduct. When the Human Rights Bureau concluded she did not state a 

cognizable claim for discrimination, Mallory was then free to pursue relief for the 

defendants’ alleged tortious conduct in district court, as long as her claim there was not 

grounded upon underlying allegations of discrimination. Vettel-Becker, ¶ 37. As we 

conclude here above, Mallory’s claim of non-consensual sex is grounded not in 

discrimination, but in tort. Therefore, she is not barred from proceeding in district court. 

As we noted in Vettel-Becker, a contrary conclusion under such circumstances would 

result in a denial of any procedure or remedy for Mallory’s dispute. Vettel-Becker, ¶ 36

(citing Schultz v. Stillwater Mining Co., 277 Mont. 154, 157, 920 P.2d 486, 487-88 

(1996)). Accordingly, we hold that the District Court erred in concluding that Saucier’s 

tort claims against Keeton and McDonald’s are barred by the MHRA’s exclusivity 

provision.
35

¶77 (2) Did the District Court err in concluding that McDonald’s sufficiently 

established an affirmative defense to Saucier’s discrimination claims?

¶78 As noted above, in addition to the tort claims, Mallory asserted, on Saucier’s 

behalf, claims of gender discrimination and disability discrimination against both Keeton 

and McDonald’s. The District Court denied Keeton’s motion for summary judgment on 

these claims, and he thereafter stipulated to the entry of judgment in Saucier’s favor. 

However, the court granted McDonald’s motion for summary judgment on Saucier’s 

discrimination claims. In doing so, the court relied on federal case law and concluded 

that McDonald’s had sufficiently established an affirmative defense by taking reasonable 

preventive and remedial steps to address discrimination at the restaurant. Given our 

resolution of the first issue in this appeal, we need not address the court’s reasoning. As 

we have held, this Court will affirm a district court which reaches the correct result, 

regardless of the district court’s reasoning. Estate of Bovey, 2006 MT 46, ¶ 9, 331 Mont. 

254, ¶ 9, 132 P.3d 510, ¶ 9.

¶79 As noted above, in determining whether a plaintiff has stated a tort claim or a 

discrimination claim, we look to the gravamen of the complaint. See e.g. Harrison, 244 

Mont. at 223, 797 P.2d at 205. When the gravamen is ascertained, the complaint is 

thereby designated as either a tort action or a discrimination action. If the alleged 

conduct falls outside the MHRA’s definition of unlawful discrimination, the plaintiff may 

maintain a tort action. However, because the MHRA establishes the exclusive means of 

legal redress for unlawful discrimination, § 49-2-509(7), MCA, the plaintiff may not 

simultaneously proceed in district court with a discrimination claim based on the same 
36

allegations when it is determined that the complaint sounds in tort. Harrison, 244 Mont. 

at 223, 797 P.2d at 205; Arthur ¶¶ 12, 27.

¶80 Here, as we have concluded above, the alleged conduct goes beyond the type of 

discriminatory actions contemplated by the MHRA. Thus, Mallory may maintain tort 

claims on Saucier’s behalf in the District Court. However, given the exclusivity 

provision of the MHRA, Mallory may not simultaneously proceed in the District Court

with a discrimination claim on Saucier’s behalf based on the same allegations.

¶81 On this basis, then, we conclude the District Court appropriately granted summary 

judgment on Saucier’s discrimination claims. Because the court reached the correct 

result, we need not address its application of federal precedent with respect to the merits 

of Saucier’s discrimination claims. Estate of Bovey, ¶ 9.

CONCLUSION

¶82 We affirm the District Court’s order granting summary judgment on Saucier’s 

discrimination claims. We reverse the District Court’s orders granting summary 

judgment on Saucier’s tort claims against both Keeton and McDonald’s, and we remand 

for further proceedings.

/S/ PATRICIA COTTER

We Concur:

/S/ KARLA M. GRAY

/S/ JAMES C. NELSON

/S/ JOHN WARNER

/S/ W. WILLIAM LEAPHART

/S/ BRIAN MORRIS

/S/ JIM RICE
Justice James C. Nelson concurs.

¶83 Based on existing law, I concur in the Court’s Opinion. However, I write 

separately to note the problems which this Court created in Harrison v. Chance, 244 

Mont. 215, 797 P.2d 200 (1990).

¶84 The MHRA has always defined unlawful discrimination in employment as the 

practice of making distinctions “in compensation or in a term, condition, or privilege of 

employment” based on various attributes such as gender and mental disability when the 

reasonable demands of the position do not require such distinction. Section 

49-2-303(1)(a), MCA. The Harrison decision, however, expanded this definition by 

holding that “sexual harassment” falls within the definition of “sexual discrimination.” 

Harrison, 244 Mont. at 221, 797 P.2d at 204. In doing so, this Court reasoned: “When 

sexual harassment is directed at an employee solely because of gender, the employee is 

faced with a working environment fundamentally different from that faced by an 

employee of the opposite gender. That difference constitutes sexual discrimination in 

employment.” Harrison, 244 Mont. at 221, 797 P.2d at 204 (internal citation omitted). 

¶85 Having thus expanded the definition of “sexual discrimination” to include “sexual 

harassment,” we then categorized the tortious battery at issue as “sexual harassment.” 

Harrison, 244 Mont. at 220-23, 797 P.2d at 203-05 (among other things, the plaintiff’s 

employer “forcefully kissed her against her will”). Consequently, some forms of tortious 

conduct now fall within the definition of “discrimination” prohibited by the MHRA. For 

example, in Arthur v. Pierre Ltd., 2004 MT 303, ¶ 25, 323 Mont. 453, ¶ 25, 100 P.3d 

987, ¶ 25, where the plaintiff’s co-worker “slapped her on the buttocks,” among other 
38

things, we applied Harrison to conclude that the conduct at issue was “sexual 

harassment” contemplated by the MHRA. 

¶86 The Harrison decision is problematic because it expanded the statutory definition 

of “discrimination” drastically and without precision. Consequently, as our Opinion here 

observes, we have utilized a “gravamen” test to analyze claims where the plaintiff alleges 

conduct that is both tortious and discriminatory. Opinion, ¶¶ 47-56. However, like 

Harrison’s notion of discrimination, our “gravamen” approach is remarkably ambiguous, 

as we have been unable to articulate clear standards by which district courts may 

determine whether a complaint sounds in discrimination or tort. The “gravamen” of a 

complaint is essentially determined by an “I know it when I see it” type of analysis. See

Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S. Ct. 1676, 1683 (1964) (Stewart, J., 

concurring) (suggesting that it may be impossible to formulate an intelligible definition of 

obscenity, but famously stating “I know it when I see it”). 

¶87 Of course, these issues are not particularly troubling in the present case because 

criminal conduct such as non-consensual sex is clearly not a form of “sexual harassment” 

contemplated by the MHRA’s anti-discrimination provisions.1 However, in other 

scenarios that are not as clear cut, Harrison’s vague and expansive notion of 

discrimination, together with the ambiguity in our “gravamen” approach, will spawn 

litigation. And how will district courts know what the gravamen of a complaint is where 

 

1

 As our Opinion indicates, we do not hold that Saucier was in fact unable to effectively consent 

to the sexual relations with Keeton. Rather, we accept that allegation only for the purposes of 

summary judgment analysis, based on the applicable standard of review. Opinion, ¶¶ 32-34, 

65-68.
39

the conduct alleged is not as egregious as the non-consensual sex alleged here, but it is 

more egregious than the forceful kissing alleged in Harrison or the slapping alleged in 

Arthur?

¶88 Even more problematic are the consequences of the “gravamen” test in some 

instances. As our Opinion notes, the MHRA procedures do not allow for a jury trial in 

discrimination claims. Sections 49-2-505, 49-2-509, MCA. Because Harrison

establishes that some tortious conduct falls within the MHRA’s definition of 

“discrimination,” and because MHRA procedures are the exclusive means of redress for 

unlawful discrimination in employment, some individuals are now denied a jury trial as a 

means to redress tortious conduct. However, the right to jury trial in civil suits is a 

constitutional right which “is secured to all and shall remain inviolate.” Mont. 

Const. art. II, § 26. Moreover, the right to trial by jury is a fundamental constitutional 

right and therefore merits the highest level of protection by this Court. Kloss v. Edward 

D. Jones & Co., 2002 MT 129, ¶ 52, 310 Mont. 123, ¶ 52, 54 P.3d 1, ¶ 52. Thus, in those 

instances where Harrison’s broad definition of “discrimination” operates to deprive an 

individual of a jury trial in redressing tortious conduct, our decision clearly conflicts with

the plain language of the Montana Constitution.

¶89 Moreover, Harrison creates a paradox with respect to the form of legal relief 

applicable to similarly situated individuals. As noted, Harrison mandates that an 

employee subjected to some types of tortious conduct is limited to an MHRA 

discrimination claim. Harrison, 244 Mont. at 220-23, 797 P.2d at 203-05. However, 

because Harrison is premised on the presence of some discriminatory intent underlying 
40

the tortious conduct, another employee intentionally subjected to the very same tort is not 

limited to a MHRA claim, but is free to pursue a common-law tort claim, with a jury trial, 

if the perpetrator did not act with discriminatory motive. This paradox further reveals the 

flawed nature of Harrison. 

¶90 I recognize that in Romero v. J & J Tire, 238 Mont. 146, 151, 777 P.2d 292, 

295-96 (1989), we held that the MHRA’s prohibition against jury trial in discrimination 

claims does not violate the right to trial by jury guaranteed by the Montana Constitution. 

However, we reached that conclusion before Harrison expanded the definition of 

“discrimination” to include tortious conduct which has traditionally been remedied by 

way of common-law tort procedures, including trial by jury. Because Harrison so 

dramatically changed the MHRA in this way, the previously-decided Romero decision 

contemplated a statutory scheme which was very different than the MHRA as it exists 

today—i.e., as judicially modified by Harrison. Thus, it is clear that this Court will 

eventually have to address the validity of Harrison in light of the fact that it deprives 

litigants of their constitutional right to a jury trial in some instances.

¶91 Additionally, we will eventually have to address the fact that Romero was based 

on a false premise. Our holding there—that the MHRA’s prohibition against a jury trial 

in discrimination claims does not violate the constitutional right to a jury trial—was 

based on the rationale that when the Legislature creates new statutory rights, as with the 

MHRA, it may also specify a means of adjudication for those rights other than trial by 

jury. Romero, 238 Mont. at 151, 777 P.2d at 295-96 (citation omitted). However, the 

right to be free from discrimination in employment was not a new statutory right created 
41

by the Legislature. In fact, this right became a fundamental constitutional guarantee in 

1972 when we adopted our state Constitution, which provides: “Neither the state nor any

person, firm, corporation, or institution shall discriminate against any person in the 

exercise of his civil or political rights on account of race, color, sex, culture, social origin 

or condition, or political or religious ideas.”2 Mont. Const. art. II, § 4.

¶92 Finally, our “gravamen” approach has created unnecessary procedural concerns. 

Because we have provided only vague guidance for determining the gravamen of a 

complaint, plaintiffs often have difficulty determining whether to file a tort claim in 

district court or a discrimination claim with the Department of Labor and Industry. 

Indeed, it appears in this case that Saucier’s counsel initially perceived this as a tort 

claim; however, as disclosed in briefing, counsel nonetheless filed the MHRA action “out 

of an abundance of precaution.” This problem is further complicated by the MHRA’s 

180-day statute of limitations for filing a discrimination claim. Section 

49-2-501(1), (4)(a), MCA. That is, if a plaintiff incorrectly determines that the gravamen 

of his or her claim is tort, and thus fails to file a discrimination action within 180 days, 

the plaintiff will be procedurally barred from bringing the discrimination action even if 

the claim is later adjudicated as having a gravamen of discrimination. Of course, it 

makes no sense to penalize a plaintiff with such forfeiture where he or she simply 

mis-applies the “gravamen” analysis, because we have failed to provide adequate 

guidance for that undertaking. 

 

2

 The opportunity to pursue employment is a fundamental civil right under Article II, Section 3,

of the Montana Constitution. Wadsworth v. State, 275 Mont. 287, 299, 911 P.2d 1165, 

1172 (1996).
42

¶93 Although a plaintiff may be able to overcome this procedural bar through further 

litigation (see Harrison, 244 Mont. at 228, 797 P.2d at 208, discussing equitable tolling 

of the MHRA’s statute of limitations where a plaintiff has in good faith pursued a tort 

claim), we should approve simpler means to resolve this issue preemptively—that is, as 

long as we perpetuate the “gravamen” approach. For example, where a claim arguably 

sounds in either tort or discrimination, the plaintiff should be allowed to concurrently file 

a tort claim in district court and a discrimination claim with the Department of Labor and 

Industry. If the discrimination claim is filed within the applicable 180-day limit, the 

MHRA proceedings should then be stayed upon request by the plaintiff while he or she 

seeks a judicial determination as to the gravamen of the claim. In this way, the 

discrimination claim would be preserved if the gravamen of plaintiff’s claim is ultimately 

adjudged to be discrimination. Moreover, if the gravamen of the claim is tort, the dual 

filing and the stay would allow the Department to avoid unnecessary MHRA 

proceedings, thereby preserving state resources. We have previously approved a similar 

dual-filing approach in cases where it is not initially known whether the applicable law is 

the MHRA or the Wrongful Discharge from Employment Act. Tonack v. Montana Bank 

of Billings, 258 Mont. 247, 255, 854 P.2d 326, 331 (1993) (allowing for concurrent filing 

of a MHRA action and a WDEA action, while noting that recovery may only be obtained 

under one theory or the other).3

 

3

 We have also adopted a similar procedure with respect to the relationship between negligence 

claims and bad faith claims. In Fode v. Farmers Ins., 221 Mont. 282, 287, 719 P.2d 414, 417 

(1986), we held that because a bad faith claim against an insurer cannot be prosecuted until after 

the underlying negligence claim is concluded, the plaintiff may file the bad faith claim while 
43

¶94 It is critical to note that these issues plaguing anti-discrimination law—particularly 

our redefining of the term “discrimination”—are judicially created problems. While we 

are obligated to own up to that fact and resolve these issues at some point, I recognize 

that it is appropriate to treat Harrison and its progeny as controlling in this case. 

¶95 That said, I can no longer adhere to the legal fiction that sexual assaults or 

batteries in the work place are “discrimination.” The common sense—and legal—

definition of discrimination is that which is set forth in § 49-2-303(1)(a), MCA, referred 

to above. Quite simply, sex discrimination includes making distinctions in jobs, 

advancement, pay, and other conditions or terms of employment based on gender, instead 

of on merit or some unique requirement of the job. And, it goes without saying, that most 

sexual discrimination in the workplace is directed against women by men. 

¶96 However, presently, under Montana’s jurisprudence, if a male customer of a pizza 

parlor forcibly kisses a female employee or slaps her buttocks, the employee can sue the 

customer in tort for, at least, civil battery. Yet, under Harrison and its progeny, if the 

male supervisor of the same employee forcibly kisses her or slaps her buttocks, that is 

simply workplace “discrimination”—with the result that the employee forfeits 

fundamental civil rights and remedies, including access to the courts in tort and a jury 

trial. Opinion, ¶¶ 39-43. 

 

concurrently prosecuting the negligence claim, in order to toll the statute of limitations 

applicable to bad faith claims. However, we held that the bad faith action must be suspended 

and no discovery proceedings may be conducted while the underlying negligence claim is 

prosecuted. Fode, 221 Mont. at 287, 719 P.2d at 417. Similarly here, we should allow the 

discrimination claim to be stayed while the plaintiff seeks a judicial determination of the 

gravamen of the claim.
44

¶97 This sort of judicially-created legerdemain is, at best, illogical. Worse, 

characterizing workplace sexual assaults or batteries of women as “discrimination,” 

trivializes the conduct and the female employee’s fundamental rights to human dignity 

and individual privacy guaranteed under Article II, Sections 4 and 10, respectively, of 

Montana’s Constitution. Refusing to acknowledge and name this sort of personal 

violation and degradation for what it is—a criminal offense and a civil tort—perpetuates 

the paternalistic view that this sort of behavior is just “boys will be boys” workplace 

horseplay. Harrison and its progeny marginalize female employees and relegate them to 

the status of second-class citizens. Moreover, this jurisprudence is antithetical to this 

Court’s attempts to encourage gender equity and fairness. A sexual assault or battery is 

precisely that; it is not discrimination.

¶98 Application of the gravamen test to such conduct is not the solution. Indeed, it is 

part of the problem. The Harrison line of cases should be overruled, and I look forward 

to the case when that issue is raised, briefed and argued on appeal.

¶99 With that caveat, I concur.

/S/ JAMES C. NELSON

Justice Patricia O. Cotter joins in the Concurrence of Justice James C. Nelson.

/S/ PATRICIA COTTER