No. 90-073 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

CAROL THOMAS HARRISON, 

Plaintiff and Appellant, 

JAMES EDWARD CHANCE, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Ravalli, 

The Honorable Jack L. Green, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Rex Palmer, Attorneys, Inc., Missoula, Montana 

For Respondent: 

Samuel M. Warren, Worden, Thane & Haines, Missoula, 

Montana 

For Amicus Curiae: 

David Rusoff, Montana Human Rights Commission, 

Helena, Montana 

Filed: 

Submitted on Briefs: June 14, 1990 

B Decided: ~ugust 20, 1990 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

Appellant Carol Harrison appeals an order of the Fourth 

Judicial District Court, Ravalli County, granting summary judgment 

to respondent James Chance on the ground that the Human Rights 

Commission provides the exclusive remedy for her claim of sexual 

harassment against her employer. Harrison also appeals the 

District Court's award of costs to the respondent and the court's 

refusal to impose Rule 11, M.R.Civ.P., sanctions. We affirm with 

a minor exception. 

ISSUES 

1. Did the District Court err in granting the respondent 

summary judgment on the grounds that the exclusive remedy provision 

of the Montana Human Rights Act, 5 49-2-509(7), MCA, requires the 

appellant to pursue her sexual harassment claim through the Human 

Rights Commission rather than filing a complaint in district court? 

2. Did the District Court err in holding that the exclusive 

remedy provision of 5 49-2-509 (7) , MCA, applied to the appellant Is 

claim even though the acts complained of pre-dated passage of 

provision? 

3. Did the District Court err in not holding that application 

of the Montana Human Rights Act's exclusive remedy provision and 

180-day statute of limitations unconstitutionally deprived the 

appellant of her rights to contract, substantive due process, and 

equal protection under the Montana and United States Constitutions? 

2 
4. Did the District Court err in refusing to sanction the 

respondent under Rule 11, M.R.Civ.P., for including non-compensable 

expenses in his memorandum of costs? 

5. Did the District Court err in awarding the respondent the 

cost of taking the appellant's deposition? 

FACTS 

Respondent Chance employed appellant Harrison from September 

1986 to March 1987 as a horse trainer. Harrison alleges that 

during her employment, Chance repeatedly made unwelcome sexual 

advances culminating in a demand that she either "put out or get 

out.gt Harrison responded to the ultimatum by resigning and filing 

a tort action against Chance in the Fourth Judicial District Court. 

The District Court, however, granted Chance's motion for summary 

judgment reasoning that under 5 49-2-509(7), MCA, proceedings 

before the Montana Human Rights Commission provided the exclusive 

remedy for actions based on sexual harassment. The court also 

awarded the respondent damages and refused the appellant's motion 

for Rule 11, M.R.Civ.P., sanctions against the respondent. 

Harrison now appeals those orders. 

THE EXCLUSIVE REMEDY 

Did the District Court err in granting the respondent summary 

judgment on the grounds that the exclusive remedy provision of the 

Montana Human Rights Act, 5 49-2-509(7), MCA, requires the 

3 
appellant to pursue her sexual harassment claim through the Human 

Rights commission rather than filing a complaint in district court? 

Summary judgment may be granted when there is no genuine issue 

of material fact and the movant is entitled to a judgment as a 

matter of law. Rule 56(c), M.R.Civ.P. Unlike most summary 

judgment appeals, the question here is not whether there is an 

issue of fact; the question is whether Chance is entitled to 

judgment as a matter of law. Harrison argues that he is not for 

a number of interrelated reasons. To simplify discussion, we will 

consider each reason separately. 

Drinkwalter v. Shipton Sup~lv Co., Inc. 

The appellant relies on Drinkwalter v. Shipton Supply Co., 

Inc. (1987), 225 Mont. 380, 732 P.2d 1335, in arguing that the 

Montana Human Rights Act does not provide the exclusive remedy for 

sexually discriminatory acts in the work place. Like Harrison, the 

plaintiff in Drinkwalter chose to file a district court action 

alleging several torts based on sexual harassment by her employer 

rather than filing with the Human Rights Commission. This Court 

held that, because the legislature had not indicated a clear intent 

to abolish other common law remedies, the Human Rights Commission 

did not provide the exclusive remedy for sexual harassment. 

Drinkwalter, 225 Mont. at 384, 732 P.2d at 1338. 

We do not agree that Drinkwalter is controlling; a 1987 

amendment to the Human Rights Act legislatively overruled Drink4 
walter. At the time Drinkwalter was decided, the Montana Human 

Rights Act did not contain the exclusive remedy provision of 5 49- 

2-509 (7), MCA. During hearings before the Senate Judiciary 

Committee to consider various amendments to the Human Rights Act, 

LeRoy H. Schramm, Chief Legal Counsel of the Montana University 

System, proposed an additional amendment based on the following 

rationale: 

On February 23, 1987, the Montana Supreme 

Court decided the case of Drinkwalter v. 

Shi~ton. Under the holding of that case, 

persons alleging acts that violate the discrimination provisions of the Human Rights Act 

and the Governmental Code of Fair Practices 

need no longer vindicate their rights under 

the provisions of these acts. Rather, they 

are allowed to completely bypass the administrative procedures set up by statute and go 

directly to court alleging tort theories of 

recovery grounded on the individual dignities 

clause of the constitution. This amendment 

would make clear that the statutory procedures 

for discrimination are exclusive remedies and 

cannot be bypassed. 

Hearing on House Bill 393 Before the Senate Judiciary Committee, 

50th Legislature, (March 20, 1987), Exhibit No. 3. The 1987 

Legislature adopted the proposed amendment without change or 

comment as 5 49-2-509(7), MCA. It reads: 

The provisions of this chapter [ !j B 49-2-101 

through -601, MCA] establish the exclusive 

remedy for acts constituting an alleged violation of this chapter, including acts that may 

otherwise also constitute a violation of the 

discrimination provisions of Article 11, 

section 4, of the Montana constitution or 49- 

1-102. No other claim or request for relief 

based upon such acts may be entertained by a 
district court other than by the procedures 

specified in this chapter. 

While it is not clear that the legislature adopted Chief Counsel 

Schramrn's rationale, the passage of the exclusive remedy provision 

so close in the wake of Drinkwalter and the plain language of the 

provision indicate that the legislature intended the procedures of 

the Human Rights Commission provide the exclusive remedy for 

discrimination in employment. 

Harassment vs. Discrimination 

Harrison argues that her claim does not fall under the Human 

Rights Act because Chancels alleged acts were sexual harassment, 

not sexual discrimination. The appellant correctly points out that 

in Drinkwalter this Court stated in dicta that sexual harassment 

is not sexual discrimination subject to the Human Rights Act. 

Drinkwalter, 225 Mont. at 385, 732 P.2d at 1339. The current 

authority, however, overwhelmingly supports the opposite conclusion. 

The Human Rights Commission itself defines sexual harassment 

as sexual discrimination. In the construction of a statute, this 

Court gives deference to the interpretations of the agency charged 

with its administration. State v. Midland Materials Co. (1983), 

204 Mont. 65, 70, 662 P.2d 1322, 1325. The Commission has 

explicitly adopted the federal Guidelines on Sexual Discrimination 
promulgated by the United States Equal Employment Opportunity 

Commission. A.R.M. 24.9.1407. Those guidelines provide: 

Harassment on the basis of sex is a violation 

of Sec. 703 of Title VII. Unwelcome sexual 

advances, requests for sexual favors, and 

other verbal or physical conduct of a sexual 

nature constitute sexual harassment when (1) 

submission to such conduct is made either 

explicitly or implicitly a term or condition 

of an individual's employment, (2) submission 

to or rejection of such conduct by an individual is used as the basis for employment 

decisions affecting such individual, or (3) 

such conduct has the purpose or effect of 

unreasonably interfering with an individual's 

work performance or creating an intimidating, 

hostile, or offensive working environment. 

29 C.F.R. 5 1604.11(a). 

Other jurisdictions' interpretations of laws similar to 

Montana's Human Rights Act also provide persuasive evidence that 

sexual harassment is sexual discrimination. Because the Montana 

Human Rights Act was closely modeled after Title VII, reference to 

federal case law is both appropriate and helpful in construing the 

Montana Human Rights Act. Johnson v. Bozeman School Dist. No. 7 

(1987), 226 Mont. 134, 139, 734 P.2d 209, 212. The United States 

Supreme Court holds that under Title VII, 

Without question, when a supervisor sexually 

harasses a subordinate because of the subordinate's sex, that supervisor "discriminate[sI1l on the basis of sex. 

Meritor Savings Bank, FSB v. Vinson (1986), 477 U.S. 57, 64, 106 

S.Ct. 2399, 2404, 91 L.Ed.2d 49, 58. Furthermore, every state 

considering the issue, as well as the District of Columbia, have 
reached the same conclusion in construing their human rights acts. 

Holien v. Sears, Roebuck and Co. (Or. 1984), 689 P.2d 1292, 1299; 

Howard Univ. v. Best (D.C. App. 1984), 484 A.2d 958, 978; Continental Can Co., Inc. v. State (Minn. 1980), 297 N.W.2d 241, 249; see 

also Glasgow v. Georgia-Pac. Corp. (Wash. 1985), 693 P.2d 708, 712. 

The reason behind this rule is apparent. 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. 

Continental Can Co., 297 N.W.2d at 248. That difference constitutes sexual discrimination in employment. We hold that sexual 

harassment is sexual discrimination under the Montana Human Rights 

Act. 

The Bisexual Exception 

Harrison argues that Chance's acts fall under an exception to 

the general rule that sexual harassment is sexual discrimination 

and therefore, are not subject to the Human Rights Act. A number 

of federal courts have noted that a bisexual supervisor who has 

harassed both male and female employees is not liable for sexual 

discrimination. Although the supervisor may have committed a 

variety of torts, as an equal opportunity lecher, the supervisor 

has not violated Title VII. See Henson v. City of Dundee (11th 

Cir. 1982), 682 F.2d 897, 904; Barnes v. Costle (D.C. Cir. 1977), 

561 F.2d 983, 990, n.55. Harrison argues that Chance did not 

8 
discriminate on the basis of gender because he made sexual advances 

to both her and her son. 

The parties' primary contention is whether the allegation of 

bisexual harassment was properly before the District Court on 

summary judgment. Uniform District Court Rule 4 (a) states in part, 

"When any motion is filed making reference to discovery, the party 

filing the motion shall submit with the motion relevant unfiled 

documents.It (Emphasis added.) While the parties debate the 

meaning of "filing" and "relevant documentstgg we do not reach those 

issues. Whatever is filed and however the filing is accomplished, 

it must precede the summary judgment hearing. See OINeill v. State 

(1987), 225 Mont. 364, 366, 732 P.2d 1330, 1331. 

The record indicates that the appellant failed to raise the 

bisexual-harassment theory until after the District Court issued 

its order granting summary judgment. The complaint contains no 

charge that Chance harassed her son. The appellant's reply to the 

respondent's motion for summary judgment includes one sentence 

vaguely alluding to bisexual harassment, but makes no use of the 

allegation. The bisexual harassment theory appears for the first 

time in the appellant's proposed findings of fact and conclusions 

of law. The record shows that that document was received on 

October 20, 1989, two days after the District Court signed the 

summary judgment order. Because the issue was not presented, the 

District Court made no error in failing to consider the issue of 

bisexual harassment. 

9 
Separate Cause of Action 

Finally, Harrison argues that her claim is not limited to the 

Human Rights Commission because, in addition to sexual harassment, 

Chance committed a variety of torts against her which provide 

grounds for her cause of action in district court. Again, her 

authority is Drinkwalter which allowed the plaintiff to bring tort 

action based on sexual harassment rather than filing a complaint 

with the Human Rights Commission. Specifically, Harrison alleges 

that Chance's conduct amounted to tortious battery, intentional 

infliction of emotional distress, the tort of outrage, wrongful 

discharge, and breach of the implied covenant of good faith and 

fair dealing. 

It may be that the alleged acts provide grounds for these and 

other tort claims. However, the gravamen of the appellant's claim 

is sexual harassment. Her claim of battery is based on an 

allegation that Chance forcefully kissed her against her will. 

The intentional infliction of emotional distress and outrage arise 

from charges that Chance repeatedly confronted Harrison with 

sexually explicit innuendos and offers. Likewise, the theories of 

wrongful discharge and breach of the implied covenant of good faith 

and fair dealing are based on Harrison's allegations that Chancels 

constant sexual harassment made her working conditions so intolerable that she was forced to resign. 

As in this case, any claim based on sexual harassment can be 

framed in terms of numerous tort theories. The legislature 

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expressed its intent that the Commission provide the exclusive 

remedy for illegal discrimination when it enacted subsection (7) 

of 5 49-2-509, MCA. To allow such re-characterization of what is 

at heart a sexual discrimination claim, would be to eviscerate the 

mandate of the Human Rights Commission. The District Court did not 

err in holding that the Human Rights Commission provided the 

exclusive remedy for the appellant's claim. 

RETROACTIVE APPLICATION 

Did the District Court err in holding that the exclusive 

remedy provision of 5 49-2-509 (7) , MCA, applied to the appellant Is 

claim even though the acts complained of pre-dated passage of the 

provision? 

Harrison argues that the application of the exclusive remedy 

provision to her claim violates 5 1-2-109, MCA, which provides that 

no law is retroactive unless expressly declared so by the legislature. The alleged acts occurred between September 1986 when she 

was hired and March 17, 1987, when she resigned thereby pre-dating 

enactment of 5 49-2-509(7), MCA, on April 16, 1987. 

Again we disagree. The legislature provided that the 1987 

amendments to the Human Rights Act, including the exclusive remedy 

provision, would apply to all cases not settled before the time of 

enactment. 

This act applies to cases pending before the 

commission for human rights on the effective 

date of this act and to cases filed with the 
commission for human rights on or after the 

effective date of this act. 

Act approved April 16, 1987, ch. 511, 5 4, 1987 Mont. Laws 1240, 

1243. Harrison filed her complaint on September 28, 1987, six 

months after the April 16, 1987, effective date of the statute. 

Although Harrison filed in District Court, we have already 

determined that she should have filed with the Human Rights 

Commission. The applicability section of the 1987 amendments, 

therefore, applies to her claim and brings it under the exclusive 

remedy provision. If we held otherwise, any discrimination 

claimant could avoid the exclusive remedy provision through the 

expedient filing of a tort claim in district court, contrary to 

the intent of the legislature that the Human Rights Act provide the 

exclusive remedy for all unadjudicated discrimination claims. 

CONSTITUTIONALITY 

Did the District Court err in not holding that the application 

of the Montana Human Rights Act's exclusive remedy provision and 

180-day statute of limitations unconstitutionally deprived the 

appellant of her rights to contract, substantive due process, and 

equal protection under the Montana and United States Constitutions? 

In the recent case of Romero v. J & J Tire, JMH, Inc. (Mont. 

1989), 777 P.2d 292, 46 St.Rep. 1159, this Court held that the 

exclusive remedy provision of the Montana Human Rights Act did not 

violate either federal or Montana rights to access to the courts, 
equal protection, or trial by jury. Harrison now raises several 

new federal and Montana constitutional issues not covered in 

Romero. 

Risht to Contract 

Harrison argues that application of the exclusive remedy 

provision violates her right to freedom from impairment of contract 

guaranteed by Article 1, Section 10 of the United States Constitution and Article 11, Section 31, of the Montana Constitution, by 

retroactively effecting the terms of her employment contract with 

the respondent. She relies on Carmichael v. Workersf Compensation 

Court (1988), 234 Mont. 410, 415, 763 P.2d 1122, 1126, in asserting 

that she was vested with a contract right to bring her claim under 

the laws in effect at the time of her alleged injury. Because 

Drinkwalter represented the law of Montana at that time, she has 

a right to bring a tort action with a three-year statute of 

limitations in district court. Harrison points out that application of the exclusive remedy provision replaces that right to sue 

in district court with a barren right to bring a claim before the 

Human Rights Commission. If the Human Rights Act provides her only 

remedy, it also extinguishes that remedy because its 180-day 

statute of limitations has already passed. See 3 49-2-501(2)(a), 

MCA . 

We agree with the appellantfs analysis of the effect of the 

statute of limitations, but we disagree with her contention that 

13 
it is unconstitutional. Unlike the workers1 compensation claimant 

in Carmichael, Harrison has no vested contract right to application 

of the laws in effect at the time of her injury. The rights of an 

injured workers1 compensation claimant are contractual rights. 

Cadwell v. Bechtel Power Corp. (1987), 225 Mont. 423, 425, 732 P.2d 

1352, 1354; see also Carmichael, 234 Mont. at 413, 763 P.2d at 

1124. Above, we held that Harrison's claim is essentially a 

discrimination claim even though it can be couched in terms of a 

tort claim. The same reasoning applies here; although Chancels 

alleged acts can be termed a breach of an implied employment 

contract with Harrison, the gravamen of the claim is sexual 

discrimination. Because the appellant has no vested contract 

right, application of the exclusive remedy provision of P 49-2- 

509(7), MCA, does not violate her right to contract. 

substantive Due Process 

Harrison next argues that application of the exclusive remedy 

provision violates her right to due process under Amendment XIV, 

Section 1 of the United States Constitution and Article 11, Section 

17, of the Montana Constitution, far the same reasons that it 

violates her right to contract; the legislature has retroactively 

extinguished her right to bring a tort action in district court. 

Again, we disagree. Freedom from sexual discrimination is a 

constitutional right in Montana under Article 11, Section 4, of the 

Montana Constitution, but no person has a vested interest in a 

14 
particular remedy to a violation to that right. See Meech v. 

Hillhaven West, Inc. (Mont. 1989), 776 P.2d 488, 496, 46 St.Rep. 

1058, 1068. The legislature is free to impose reasonable procedural requirements on the available remedies so long as those 

requirements have a rational basis. See Linder v. Smith (Mont. 

1981), 629 P.2d 1187, 1192, 38 St.Rep. 912, 917. We have already 

held that the legislature had a rational basis for making the Human 

Rights Commission the exclusive means of combating illegal 

discrimination in Montana. Romero, 777 P.2d at 295, 46 St.Rep. at 

1161. Like any other statute of limitations, the Human Rights 

Act's 180-day limitation provides a reasonable means of preventing 

stale claims and ensuring that claims are filed before essential 

evidence disappears. 

Eaual Protection 

Harrison's final constitutional argument is that the exclusive 

remedy provision violates her right to equal protection under 

Amendment XIV, Section 1 of the United States Constitution and 

Article 11, Section 4, of the Montana Constitution. She contends 

that a male employee in the same position would fall under the 

three-year statute of limitations for torts while she is subject 

to the 180-day statute of limitations of the Human Rights Act. We 

find little reasoning and less merit in the appellant's assertion. 

Both male and female victims of sexual discrimination in employment 
have the same rights and are subject to the same procedural 

requirements of the Montana Human Rights Act. 

RULE 11 SANCTIONS 

Did the District Court err in refusing to sanction the 

respondent under Rule 11, M.R.Civ.P., for including non-cornpensable 

expenses in his memorandum of costs? 

Following dismissal of the appellant's claim on summary 

judgment, the respondent submitted a memorandum of costs including 

the costs of eight depositions, a subpoena, expert witness fees, 

a psychological evaluation of the appellant, and various court 

fees. Harrison objected to the memorandum and asked the District 

Court to sanction Chance under Rule 11, M.R.Civ.P., contending that 

none of the listed depositions, expert witness, or psychological 

evaluation were necessary to the summary judgment proceedings. The 

court refused without comment and signed a memorandum including 

only court fees and Harrison's deposition. Harrison now appeals 

that decision arguing that Chance's memorandum of costs was a 

frivolous and abusive litigation practice submitted as a ploy to 

force Harrison into settlement. 

This Court recently set out the appropriate standard in 

reviewing a district court's decision on Rule 11 sanctions. 

This Court will give the district courts wide 

latitude to determine whether the factual 

circumstances of a particular case amount to 

frivolous or abusive litigation tactics . . . . A district court's findings of fact will be 

16 
overturned if clearly erroneous. The court's 

legal conclusion that the facts constitute a 

violation of Rule 11 will be reversed if the 

determination constitutes an abuse of discretion. We will review the case de novo only if 

the violation is based on the legal sufficiency of a plea or motion. 

DtAgostino v. Swanson (Mont. 1990), 784 P.2d 919, 926, 47 St.Rep. 

10, 17. The District Court "tasted the flavor of the litigation," 

heard the partiest arguments, and found no need for sanctions. The 

appellant has raised no new argument which would indicate that the 

District Court abused its discretion in that decision. 

THE AWARD OF COSTS 

Did the District Court err in awarding the respondent the cost 

of taking the appellant's deposition? 

The memorandum of costs approved by the District Court came 

to $425 including $80 for court fees and $345 for the cost of 

taking appellant Harrison's deposition. Harrison now argues that 

the District Court erred in awarding Chance the cost of her 

deposition because the deposition was not necessary to its summary 

judgment decision. This time, we agree. 

The law controlling this issue is well settled. This case is 

not an action requiring an award of costs as a matter of course. 

See 5 25-10-101, MCA. The decision to award costs fell within the 

discretion of the District Court. See 5 25-10-103, MCA. The court 

is empowered to award costs to the prevailing party on summary 

judgment and to include the cost of depositions as long as they are 

17 
reasonable in amount and necessary to the summary judgment. See 

Frigon v. Morrison-Maierle, Inc. (1988), 233 Mont. 113, 125, 760 

P.2d 57, 64-65. 

We do not believe that Harrison's deposition was necessary to 

this order. In the summary judgment proceedings, the respondent 

cited the deposition only to show that Harrison was aware that she 

could have filed a complaint with the Human Rights Commission and 

had not done so. Harrison's knowledge of the administrative procedures does not appear to be a fact necessary to the decision to 

dismiss. The primary issue was whether she was required to file 

with the Commission. 

Even if notice of the Commission~s procedures was a material 

fact, Harrison's deposition provided only redundant authority. 

Chance also cited the facts contained in the appellant's response 

to interrogatories to support his contention. Those facts are 

basically the same as those contained in the deposition. Chance 

received those answers to interrogatories in April, 1988--ten 

months before taking Harrison's deposition on February 10, 1989. 

The respondent had no need to rely on the deposition to secure a 

summary judgment. The cost of Harrison's deposition is, therefore, 

disallowed. 

EQUITABLE TOLLING 

In Erickson v. Croft (1988), 233 Mont. 146, 760 P.2d 706, this 

Court looked favorably upon the doctrine of equitable tolling. 

18 
Under that doctrine, the statute of limitations may be tolled when 

a party reasonably and in good faith pursues one of 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 

and reasonable conduct by the plaintiff in 

filing the second claim. 

Erickson, 233 Mont. at 150-51, 760 P.2d at 708. In Erickson, we 

found 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, 

Under the facts of this case, the doctrine of equitable 

tolling may be appropriate if Harrison refiles her claim with the 

Human Rights Commission. Unlike Erickson, here the District Court 

claim may give 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 by the Human Rights p om mission. 
The cost of Harrison's deposition is disallowed. The summary 

judgment is affirmed.