No. 95-024 INTHESUPREMECOURTOFTHESTATEOFMONTANA 1995

JAMESEDWARDCHANCE, III,

Plaintiff andAppellant,

v. CAROLTHOMASHARRISONand the MONTANAHUMANRIGHTS COMMISSION,

Defendants and Respondents.

APPEAL FROM: District Court of the Fourth Judicial District,

In and for the County of Missoula, The Honorable John S. Henson, Judge presiding.

COUNSELOFRECORD:

For Appellant: Samuel M.Warren, St. Peter &Warren, P.C., Missoula, Montana For Respondents: Rex Palmer, Attorneys, Inc., P.C., Missoula, Montana Paulette Kohman, Montana HumanRights Commission, Helena, Montana

Filed: Submitted onBriefs: May26, 1995 Decided: July 17, 1995Chief Justice J. A. Turnage delivered the Opinion of the Court.

James Edward Chance, III (Chance), appeals the decision of the Fourth Judicial District Court, Missoula County, denying his motion for summary judgment. Weaffirm. The sole issue on review is whether the District Court erred in denying Chance's motion for summary judgment onthe grounds that the statute of limitations wasequitably tolled. Carol Thomas Harrison (Harrison) went to work for Chance in September 1986. Harrison groomed and trained Chance's horses and maintained andcleaned his barn. Harrison terminated her employment with Chance on March 17, 1987, following several alleged incidents of sexual harassment. On September 28, 1987, Harrison filed a civil suit in the Fourth Judicial District Court, Missoula County, alleging various torts against Chance. OnOctober 18, 1989, the District Court dismissed Harrison's claim. The court determined that all allegations set forth in her complaint stemmed from the alleged sexual harassment byChance. Thecourt went onto conclude that, pursuant to §49-2-509, MCA,aclaimant alleging sexual harassment must exhaust his or her administrative remedies with the Montana Human Rights Commission. Because Harrison had not pursued her administrative remedies with the Human Rights Commission, the District Court dismissed her claim without prejudice. Harrison appealed the District Court's decision tothis Court. In affirming the District Court, weconcluded that 549-2-509, MCA, provided Harrison's exclusive remedy. Harrison v. Chance (1990),244Mont. 215, 797P.2d 200 (Harrison I). Wenoted, in dicta, that

due to the enactment of anamendment to §49-2-509, MCA, between the time Harrison terminated her employment with Chance and the filing of her complaint in District Court, the 180-day statute of limitation for filing aclaim with the HumanRights Commission may beequitably tolled. Harrison I, 797 P.2d at 208. Harrison filed acomplaint with the HumanRights Commission on December 20, 1990. The hearing examiner determined that, while

more than 180 days had elapsed since Harrison's discharge, the statute of limitations wasequitably tolled. Thehearing examiner relied onthis Court's dicta in Harrison I in tolling the statute of limitations. Following ahearing, the hearing examiner held in favor of Harrison, awarding over $43,000 in lost wages and other damages. Chance appealed the decision of the HumanRights Commission to the Fourth Judicial District Court, Missoula County, arguing that Harrison's claim wasnot timely filed andthat the 180-day statute of limitations should not have been equitably tolled. Chance moved for summary judgment onthese grounds. The court denied Chance's motion for summary judgment, upholding the decision of the Human Rights Commission. Chance appeals the denial of his motion for summary judgment. Did the District Court err in denying Chance's motion for summary judgment onthe grounds that the statute of limitations was equitably tolled?Wereview a district court's denial of a summary judgment

motion denova. Summary judgment is proper only whenthere exists

nogenuine issue of material fact andthe moving party is entitled to judgment asamatter of law. Rule 56(c), M.R.Civ.P.; Minnie v. City of Roundup (1993), 257 Mont. 429, 849 P.2d 212. Chance argues that Harrison's claim with the Human Rights Commission should have been time-barred because she did not file her complaint within the 180-day statute of limitation. We disagree. OnMarch 17, 1987, the date of Harrison's termination, an appeal to the HumanRights Commission wasnot Harrison's exclusive remedy. Pursuant to our decision in Drinkwalter v. Shipton Supply Company, Inc. (1987), 225Mont. 380, 732 P.2d 1335, an individual alleging sexual harassment could initiate proceedings directly in the district court without first filing acomplaint with the Human Rights Commission. In Drinkwalter westated: If wewere to decide the Human Rights Act provides the sole and exclusive remedy for all claims arising out of sexual harassment, wewould also beimposing the 180day statute of limitation found in §49-2-501(2), MCA, on every possible remedy. Wetherefore find the imposition of the 180day statute of limitations to be further proof of the legislature's intent that the Human Riqhts Act not be the sole remedv for acts which also qive rise to a cause of action independent of the statute. Drinkwalter, 732 P.2d at 1339 (emphasis added). However, onApril 16, 1987, after Harrison's termination but prior to the filing of her initial complaint in District Court, a legislative amendment of §49-2-509, MCA, went into effect. The amendment added the following provision to §49-2-509, MCA: 4(7) The provisions of this chapter establish the

exclusive remedy for acts constituting an alleged violation of this chapter, including acts that may otherwise also constitute aviolation of the discrimination provisions of Article II, section 4, of the Montana constitution or 49-l-102. Noother claim or request for relief based upon such acts may be entertained by a district court other than bythe procedures specified in this chapter. This amendment effectively overruled this Court's decision in Drinkwalter andmandated that the HumanRights Act wasthe sole and exclusive remedy for asexual harassment cause of action. Harrison proceeded with her case in District Court. The District Court dismissed her cause of action based onthe amended language of 549-z-509, MCA, set forth above. In affirming the District Court's decision, wenoted that Harrison might still be able to instigate an action with the Human Rights Commission despite the clear elapse of 180 days since the time of her discharge. Westated:

In Erickson v. Croft (1988), 233Mont. 146, 760P.2d 706, this Court looked favorably upon the doctrine of equitable tolling. Under that doctrine, the statute of limitations maybetolled whenaparty reasonably and in good faith pursues oneof several possible legal remedies and the claimant meets three criteria: "(1) timely notice to the defendant within the applicable statute of limitations in filing the first claim; (2) lack of prejudice to defendant in gathering evidence to defend against the second claim; and (3) good faith andreasonable conduct by the plaintiff in fiiing the second claim." Erickson, 233 Mont. at 150-51, 760 P.2d at 708. In Erickson, wefound no need to adopt equitable tolling because the appellant failed to meet the first criteria; the first claim did not give adequate notice of the second claim. Erickson, 233 Mont. at 152, 760 P.2d at 709.

5Under the facts of this case, the doctrine of

equitable tolling maybeappropriate if Harrison refiles her claim with the Human Rights Commission. Unlike Erickson, here the District Court claim maygive Chance adequate notice of a claim before the Commission. Furthermore, in filing with the District Court, the appellant appears to have relied reasonably and in good faith upon this Court's holding in Drinkwalter. As a case of first impression holding that the legislature overruled Drinkwalter, this case should not prevent the appellant from having her substantive claims heard bythe HumanRights Commission. Harrison I, 797 P.2d at 208. First, wenote that at the time of the alleged torts, Harrison had two legal remedies. Pursuant to our decision in Drinkwalter, Harrison wasentitled to file her claim in District Court or pursue her administrative remedies with the Human Rights Commission. Unlike our recent decision in Hashv. U.S. West (1994), 268 Mont. 326, 886 P.2d 442, Harrison reasonably and in good faith pursued

one of two potential legal remedies. Wedeclined to apply the doctrine of equitable tolling in Hash because at the time of Hash's claim, the legislature had already amended 549-z-509, MCA, and this Court had handed down its decision in Harrison I in which we determined that the amended language of § 49-Z-509(7), MCA, precluded bringing sexual harassment claims in district court. Hash, 886 P.2d at 446. Therefore, Hash hadonly one legal remedy, that being to file her claim with the Human Rights Commission. Hash is thus clearly distinguishable from this case. Harrison relied reasonably and in good faith onthis Court's holding in Drinkwalter. A review of our decision in Harrison I reveals Harrison reasonably believed that the amended version of §49-2-509, MCA, either was inapplicable to her claims or, if 6applicable, would not apply because the alleged torts occurred

before the effective date of the statute. Harrison filed her initial claim within the applicable statute of limitation. The final tort allegedly occurred on March 17, 1987, the day Harrison terminated her employment with Chance. Harrison filed her complaint in District Court on September 28, 1987. Such afiling wasweil within the applicable three-year tort statute of limitations. Section 27-2-204, MCA. Chance argues that, under Erickson v. Croft (1988), 233Mont. 146, 760 P.2d 706, Harrison had aduty to file her complaint within 180 days, the statute of limitations applicable for aHuman Rights Commission

claim. Even if such an interpretation of Erickson is correct, we conclude that Harrison satisfied the X8@-day filing requirement. Prior to the amendments to §49-z-509, MCA, Harrison wasentitled

to file her complaint in District Court. Only after 549-2-509, MCA, was amended was Harrison required to file with the Human Rights Commission. The amendment to §49-2-509, MCA, went into

effect on April 16, 1987. The 180-day statute of limitations therefore commenced running onthe effective date of the statute, not on March 17, 1987. Harrison filed her initial claim in District Court within 180days of the April 16effective date of the amendment. Harrison therefore satisfied the Human Rights Commission statute of limitation aswell as the tort statute of limitation.

### Areview ofthe record reveals that Chancewasnot prejudiced

in gathering evidence to defend against the claim filed with the Human Rights Commission. Extensive discovery took place in conjunction with Harrison's initial complaint filed in District Court. Chancesubmitted depositions to the hearing examiner and testified telephonically at the hearing. The record does not support Chance's allegations that hewasprejudiced byHarrison's delayed filing with the HumanRights Commission. Finally, it isclear tothis Court that Harrison acted ingood faith in filing her claim with the HumanRights Commission. Harrison justifiably relied onthis Court's holding inDrinkwalter inpursuing herDistrict Court claim. After wedetermined that her claim was subject to the amendedversion of 549-Z-509, MCA, Harrison promptly filed herclaim with theHumanRights Commission. Harrison demonstrated reasonable conduct andgoodfaith throughout these proceedings. Weconclude that equitable tolling is applicable tothe facts andcircumstances ofthis caseandthat Harrison hassatisfied the elements necessary to invoke equitable tolling as discussed Erickson. Wetherefore hold that there are nogenuine issues material fact andHarrison isentitled toajudgment asamatter law. Weaffirm the decision ofthe District Court. in of of 

# /~/ -LNe-- Chief JusticeWeconcur:

9