No. 95-026 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1995 

WEND1 BRUNER, 

Plaintiff, Appellant, 

YELLOWSTONE COUNTY. A BODY 

POLITIC, YELLOWSTONE COUNTY ATTORNEY, 

DENNIS PAXINOS, SR., MICHAEL S. MATTHEW, 

H. ELWOOD ENGLISH, AND ITS FORMER 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable William J. Speare, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

A. Clifford Edwards, Roger W. Frickle, Edwards Law 

Firm, Billings, Montana 

For Respondent: 

Carey E. Matovich, Matovich, Addy & Keller, 

Billings, Montana 

Filed: 

Submitted on Briefs: April 27, 1995 

Decided: August 3, 1995 
Justice Fred J. Weber delivered the Opinion of the Court. 

This is an appeal from grant of summary judgment to the 

defendants by the Thirteenth Judicial District Court, Yellowstone 

county. We affirm. 

The following issue is dispositive of the case: 

Did the District Court err in granting summary judgment on the 

issues of negligent retention and sexual harassment? 

Plaintiff, Wendi Bruner was employed as a secretary by the 

Yellowstone County Attorney's Office from August of 1991 until she 

tendered her resignation on April 8, 1992. In her resignation, 

plaintiff claimed that she had been continually sexually harassed 

by then Deputy County Attorney David Hoefer. 

On April 9, 1992, County Attorney Dennis Paxinos hired a 

private investigator to investigate plaintiff's allegations and 

pending the investigator's findings, suspended Hoefer with pay. 

The investigator concluded that the charges were warranted and 

Paxinos then terminated Hoefer without pay on May 19, 1992. 

In its Memorandum and Order, the District Court pointed out 

that Hoefer began grievance procedures against the County and on 

May 22, 1992, the Board of County Commissioners conducted a 

preliminary hearing and on that date negotiated a compromise 

settlement with Hoefer. On June 1, 1992, Hoefer executed a release 

and settlement agreement with the County which provided that Hoefer 

tendered his voluntary resignation effective May 19, 1992 and 

released any and all claims between Yellowstone County and himself 

in return for $30,000 in settlement. While the $30,000 settlement 

2 
was reported in the media, the settlement agreement contained a 

confidentiality clause and terms were not released to the public 

until after the County officials were compelled to release the 

documents. 

On September I, 1993, plaintiff filed a complaint with the 

Equal Employment Opportunity Commission, which rejected the claim 

as untimely, but issued a right to sue letter. On the same date 

the plaintiff filed a complaint of sexual harassment with the 

Montana Human Rights Commission (MHRC). In January, 1994, MHRC 

considered the length of delay in filing, but concluded that the 

statute of limitations was tolled on an equitable estoppel theory 

and that plaintiff's claim was timely made, MHRC dismissed the 

plaintiff's complaint without prejudice but did not issue a right 

to sue letter. 

On April 1, 1994, plaintiff filed her First Amended Complaint 

in Yellowstone County District Court charging the defendants with 

negligent retention and sexual harassment and charging Hoefer with 

battery as well. Following two motions for summary judgment, the 

District Court held a hearing and thereafter issued its order on 

November 25, 1994, granting summary judgment to the defendants on 

all counts. Plaintiff appeals this order. 

Standard of Review 

The standard of review for a grant of summary judgment is well 

settled in Montana. This Court will apply the same evaluation as 

the district court based upon Rule 56, M.R.Civ.P. The movant must 

demonstrate that no genuine issues of material fact exist. Toombs 

3 
v. Getter Trucking, Inc. (1993), 256 Mont. 282, 846 P.Zd 265. Once 

this has been accomplished, the burden then shifts to the nonmoving party to prove, by more than mere denial and speculation, 

that a genuine issue does exist. S.M. v. R.B. (1993), 261 Mont. 

522, 862 P.2d 1166. Having determined that genuine issues of fact 

do not exist, the court must then determine whether the moving 

party is entitled to judgment as a matter of law. Lindey's, Inc. 

v. Professional Consultants, Inc. (1990), 244 Mont. 238, 797 P.2d 

920. We review the legal determinations made by a district court 

as to whether the court erred. Matter of Estate of Alcorn (1994), 

263 Mont. 353, 868 P.2d 629. 

ISSUE 

Did the District Court err in granting summary judgment on the 

issues of negligent retention and sexual harassment? 

The District Court concluded that the exclusive remedy for 

injury occasioned by this type of conduct is to be found in the 

Montana Human Rights Act under § 49-2-509(7), MCA. Reference was 

made to Harrison v. Chance (1990), 244 Mont. 215, 797 P.2d 200, 

which so holds. The court further concluded that plaintiff had 

failed to bring her claim in a timely fashion under the relevant 

statutes whether the 180 day statute or the 300 day statute be 

applied. Plaintiff had failed to bring a claim for more than 487 

days. The District Court referred to the following allegation in 

the verified complaint of the plaintiff before the MHRC: 

I knew that I had legal rights available to me to sue the 

County, however, I was willing to forego those rights on 

condition that Mr. Hoefer be removed from his employment 

and would never be in a position to sexually harass a 

4 
secretary again. 

Plaintiff contends the defendants are directly liable to her 

for negligence in retaining Hoefer, independent of Hoefer's 

sexually harassing conduct. Plaintiff argues that the defendants 

knew of Hoefer's conduct toward women but did nothing and that had 

the defendants acted responsibly, she would not have been injured 

by Hoefer. 

Defendants contend that plaintiff cannot bring a tort action 

for negligent retention because it is still a tort action which was 

derived from Hoefer's sexual harassment and that plaintiff's sexual 

harassment claim is barred due to its untimeliness. 

As the moving parties for summary judgment, the defendants had 

to show a complete absence of any genuine issues of fact deemed 

material in light of substantive principles that entitle that party 

to judgment as a matter of law. -, S.M. 862 P.2d at 1168. The 

defendants contend they satisfied that burden by showing that no 

material facts existed which would provide a cause of action 

against the County. Plaintiff also relies upon the letter sent by 

the County Attorney to Hoefer on May 19, 1992, following her 

resignation and the independent investigation. The letter 

contained the following paragraph with regard to Hoefer: 

Specifically you were warned by both Chief Deputy Daniel 

Schwarz and myself [Paxinosl that your expectation that 

[Wendil accompany you to all your court matters had been 

overdone. We further warned you that you were alienating 

[Wendil from the rest of the staff. . You were 

specifically requested to attend a seminar dealing 

specifically with sexual harassment, which you did. 

Chief Deputy Schwarz and myself gave you specific 

instructions to neither take breaks nor have lunch with 

[Wendi] alone. You were specifically instructed that 

5 
there should always be at least one other support staff 

person or fellow attorney to protect both yourself and 

[Wendi] from any allegations of misconduct or 

inappropriate behavior. 

While this letter suggests the possibility that the County Attorney 

had knowledge of Hoefer's conduct prior to the date of his 

dismissal, such facts are not material to the resolution of the 

summary judgment issue. Summary judgment is appropriate where a 

plaintiff fails to set forth facts which would establish each 

element of the alleged cause of action. Dvorak v. Matador (19861, 

223 Mont. 98, 727 P.2d 1306. Plaintiff merely argues that the 

defendants knew before her resignation that Hoefer was causing 

problems. In itself that letter fails to establish the elements of 

the tort of negligent retention. 

The letter does demonstrate that the defendants had taken 

steps to eradicate unprofessional behavior on Hoefer's part. 

Plaintiff failed to rebut the elements of the affidavit of the 

County Attorney which established that as soon as the County 

Attorney was notified by the plaintiff that a problem existed, 

Hoefer was suspended and investigated. The affidavit establishes 

without contradiction that Hoefer never worked a day after the 

plaintiff resigned. Plaintiff failed to set forth any facts 

demonstrating actual notification to the defendants about Hoefer's 

behavior until she actually resigned. 

The key question is whether plaintiff could have recovered for 

negligent retention as a matter of law. The District Court relied 

on Harrison for the proposition that the exclusive remedy for any 

complaint arising from sexual harassment is § 49-2-509(7), MCA. 

6 
Plaintiff argued that her action against the County was not based 

upon sexual harassment. Our more recent holding of Hash v. U.S. 

West COmmUniCatiOn SerViCeS (1994), 886 P.2d 442, at page 445-46 

held: 

Hash asserts that timely filing of a discrimination 

claim with the HRC is not a prerequisite to filing with 

the district court. We previously have resolved this 

issue against Hash's position. In Harrison v. Chance 

(1990), 244 Mont. 215, 797 P.2d 200, we held that the Act 

provides the exclusive remedy for sexual discrimination 

claims. We did so on the basis that a 1987 legislative 

amendment made the Act the exclusive remedy for sexual 

discrimination. We held that the "statutory procedures 

for discrimination are exclusive remedies and cannot be 

bypassed." Harrison, 797 P.2d at 203. Like the 

plaintiff in Harrison, Hash chose to file a 

discrimination claim in district court without first 

timely filing her complaint with the HRC. 

. 

The Legislature clearly intended that the Act be the 

exclusive remedy for discrimination claims. We adopted 

this intent in Harrison and maintain it in the instant 

case. To permit parties to delay filing with the HRC 

until the HRC filing time ran out and then file their 

claims directly in district court would, in a sense, gut 

the Act. We reaffirm our decision that the HRC is the 

exclusive remedv for Hash's discrimination claim. 

(Emphasis supplied.) 

In Harrison, this court further considered claims for 

intentional infliction of emotional distress and outrage arising 

from the charges of sexually explicit conduct and also theories of 

wrongful discharge and breach of the implied covenant of good faith 

and fair dealing. In our present case, plaintiff has charged the 

defendants with negligent retention of Hoefer. At that point, the 

following statement in Harrison is pertinent: 

As in this case, any claim based upon sexual 

harassment can be framed in terms of numerous tort 

theories. The legislature expressed its intent that the 

Commission provide the exclusive remedy for illegal 

discrimination when it enacted subsection (7) of § 49-2- 

7 
509, MCA. To allow such recharacterization of what is at 

heart a sexual discrimination claim, would be to 

eviscerate the mandate of the Human Rights Commission. 

Harrison, 797 P.Zd at ZOO. Plaintiff contends that the tort she 

charged has nothing to do with Hoefer's sexual harassment. Clearly 

that is not a proper conclusion. If the sexual harassment were 

removed from the factual picture, plaintiff would have no tort 

claim. Because the sexual harassment is at the foundation of her 

claim of negligent retention, the only remedy she has is in the 

Montana Human Rights Act, §§ 49-2-101 et seq., MCA. We conclude 

that the holdings of Hash and Harrison are controlling and that the 

exclusive remedy for the claimed negligent retention of Hoefer and 

sexual harassment by Hoefer is to be found in the Montana Human 

Rights Act. 

Section 49-z-501, MCA, required plaintiff to file her claim 

with the MHRC within 180 days, or if a grievance is filed first, 

300 days. Plaintiff failed to file her claims within those periods 

of time. Plaintiff attempts to argue that she agreed not to file 

charges if the County would fire Hoefer and he could not harass 

other women. She became frustrated when she learned that the 

County had paid Hoefer $30,000, and then instituted these 

proceedings. 

Plaintiff has failed to demonstrate any contract or agreement 

on the part of the defendants which was breached in connection with 

Hoefer. Plaintiff resigned on April 8, 1992, and raised to the 

County Attorney the issue of inappropriate behavior by deputy 

Hoefer. The County Attorney suspended Hoefer on April 9, 1992, and 

8 
Hoefer did not work for Yellowstone County after that time. 

It is true that the MHRC eventually determined that the 

statutory filing time should be tolled on a theory of equitable 

estoppel. However, the District Court specifically considered this 

issue and concluded that equitable estoppel did not apply so that 

the complaint was untimely filed. 

Equitable estoppel is not favored and will be sustained only 

upon clear and convincing evidence. Ducham v. Tuma (1994), 265 

Mont. 436, 877 P.2d 1002. To constitute equitable estoppel, there 

must be conduct amounting to representation or concealment of 

material facts; these facts must be known to the party estopped at 

time of conduct; truth concerning these facts must be unknown to 

the other party claiming benefit of estoppel at the time it was 

acted upon; conduct must be done with intention, or at least with 

expectation that it will be acted upon by the other party; conduct 

must be relied upon by the other party and the other party must in 

fact act upon it in such a manner as to change his position for the 

worse. Kephart v. Portmann (1993), 259 Mont. 232, 855 P.2d 120. 

Nothing in the record indicates that the County failed to 

carry through any representations to plaintiff. Hoefer did not 

work following the filing of plaintiff's resignation. Plaintiff 

resigned as of the end of April in 1992, yet it was not until the 

end of May 1992 that the Commissioners decided to pay Hoefer to 

resign voluntarily without filing an action against the County. 

Thus, there never was any representation to plaintiff that the 

County would not pay Hoefer money to disappear. Plaintiff never 

9 
Justice W. William Leaphart dissenting. 

I dissent. For reasons outlined below, I would recognize the 

tort of negligent retention in Montana and reverse the grant of 

summary judgment. 

The tort of negligent retention: 

arises when, during the course of employment, the 

employer becomes aware or should have become aware of 

problems with an employee that indicated his [or her] 

unfitness, and the employer fails to take further action 

such as investigating, discharge, or reassignment. 

Yunker [v. Honeywell], 496 N.W.Zd [4191 423 (quoting 

Garcia v. Duffy, 492 So.2d 435, 438-39 (Fla.Dist.Ct.App. 

1986) ) . 

ML v. Arndt (Minn. App. 1995), 531 N.W.2d 849, 857 (employee that 

had previously shot a co-worker and showed aggression towards 

coworkers was retained). In Vollmer v. Bramlette (1984), 594 

F.Supp. 243, the Federal District Court for the District of Montana 

concluded that an employer has a duty to protect his or her 

employees from foreseeable employee-caused harms. That court 

concluded that in the negligent hiring context, "the question of 

foreseeability, such as which would give rise to a duty of the 

employer, is a question of fact not properly disposed of by summary 

judgment." Vollmer, 594 F.Supp. at 248. 

The basis of responsibility under the doctrine of 

negligent hiring is the master's own negligence in hiring 

or retaining in his employ an incompetent servant whom 

the master knows or by the exercise of reasonable care 

should have known was incompetent or unfit and thereby 

creating an unreasonable risk of harm to others. 

Estate of Arrington v. Fields (Tex. Civ. App. 1979), 578 S.W.2d 

173, 178. 

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The District Court in the case at hand, found that Bruner's 

claim for negligent retention was founded in unrelenting sexual 

harassment during her employment and that the exclusive remedy for 

this type of conduct (sexual harassment) is found in the Montana 

Human Rights Act. I disagree. Exclusivity only applies if the two 

remedies share indispensable elements. Sexual harassment under the 

HRA and negligent retention do not share indispensable elements. 

The HRA requires proof of discrimination. The tort of negligent 

retention does not. 

In Retherford v. AT&T Communications of the Mountain States, 

Inc. (Utah 1992), 844 P.2d 949, the plaintiff alleged, among other 

claims, that AT&T negligently employed several employees who 

harassed her. The court analyzed whether Utah's AntiDiscriminatory Act (UADA) provided the exclusive remedy for her 

claims. The court adopted the indispensable element test as the 

analytical model to determine whether a statutory cause of action 

forecloses a common law remedy. Retherford, 844 P.2d at 963. 

Applying the test, the court first identified the injury that the 

statute was designed to address. Retherford, 844 P.2d at 965. 

Second, the court examined the elements of the plaintiff's tort 

claims to determine whether any element of the claim was a 

necessary element of the statutory cause of action. Retherford, 

844 P.2d at 965. That court concluded that the UADA addressed 

employment discrimination against members of specified protected 

groups. The court found that: 

[nloticeably absent from the list of the indispensable 

elements of the four claims [one of which was negligent 

12 
employment] is an injury that is a target of the UAUA: 

retaliation for complaints of sexual harassment. While 

it is true that all four claims arise out of defendants' 

retaliatory conduct, preemption depends on the nature of 

the injury, not on the nature of the conduct allegedly 

responsible for that harm. 

Retherford, 844 P.2d at 967. 

I would apply the two-part test from Retherford to the instant 

case. First, the injuries addressed by the Montana Human Rights 

Act (HRA) include various employment-related discriminatory acts. 

Second, the elements of Bruner's tort, negligent retention, require 

that Bruner prove that Yellowstone County's "negligence in hiring, 

supervising, or retaining its employees [Hoeferl proximately caused 

her harm." See Retherford, 844 P.2d at 967. The HRA does not 

address negligent retention of an employee who harasses or 

discriminates against another employee. Rather, the HRA focuses on 

the discriminatory acts of the employer which directly impact upon 

the injured employee. The HRA provides in relevant part that: 

(1) It is an unlawful discriminatory practice for: 

(a) an employer to refuse employment to a person, 

to bar a person from employment, or to discriminate 

against a person in compensation or in a term, condition, 

or privilege of employment because of race, creed, 

religion, color, or national origin or because of age, 

physical or mental disability, marital status, or sex 

distinctionL.1 

Section 49-2-303(l) (a), MCA. 

If Bruner were alleging that Yellowstone County was harassing 

or discriminating against her then she would have a claim under the 

HRA and any common law harassment and discrimination claims against 

Yellowstone County would be preempted. Likewise, a claim against 

the County based upon Hoefer's harassing conduct would merely be 

13 
derivative in nature and would be preempted. However, here, Bruner 

is suing Yellowstone County, not for Hoefer's conduct, but for the 

County's own negligence in retaining Hoefer in a position where, 

given his prior history of harassing other women, it was 

foreseeable that he would harass Bruner. 

The claim for negligent retention focuses on Yellowstone 

County's failure to terminate Hoefer once it learned that Hoefer 

was harassing women employees--i.e. Bruner's predecessors. The 

factual basis of the negligent retention claim against Yellowstone 

County started before Bruner was even hired. Bruner presented 

deposition testimony from the county attorney indicating that he 

was concerned that Bruner's two predecessors would file 

constructive discharge claims against the County based upon 

Hoefer's conduct towards them. This testimony certainly raises a 

question of fact as to the County's prior knowledge (i.e. 

foreseeability) sufficient to defeat a motion for summary judgment 

on the claim of negligent retention. 

The HRA addresses discrimination against an employee as 

opposed to negligence in hiring or retaining an employee. Burner's 

claim of negligent retention is not premised upon discrimination. 

Secondly, her claim is based upon the County's own actions, not 

those of Hoefer. Thus, her claim of negligent retention is not 

preempted by the HBA and is not controlled by the time constraints 

of § 49-2-501, MCA, which requires filing with the HRA within 180 

days or with the EEOC within 300 days. 

I would reverse the District Court's grant of summary judgment 

14 
on the question of negligent retention. I do not believe that the 

claim of negligent retention was preempted by the HRA nor do I 

believe that the claim of negligent retention is subject to the 

filing deadlines of the HRA. 

Just?& . 

I 

Justices William E. Hunt, Sr., and Terry N. Trieweiler join in the 

foregoing dissenting opinion. 

dJ& 

Justice 

7’ . / 4” ustice 

Justice James C. Nelson specially concurs. 

I concur with the result reached in our opinion because I am 

satisfied that application of our decision in Harrison v. Chance 

(1990), 244 Mont. 215, 797 P.2d 200, mandates that result. I do 

not, however, read our opinion as a refusal to recognize the tort 

of negligent retention in a case involving different underlying 

facts. As far as I am concerned, that issue remains to be decided 

in the future.