No

No. 99-095

IN THE SUPREME COURT OF THE STATE OF MONTANA

1999 MT 301

297 Mont. 156

991 P.2d 955

STEPHANI A. SKITES,

Plaintiff and Appellant,

v.

BLUE CROSS BLUE SHIELD OF MONTANA

a Montana corporation,

Defendant and Respondent.

APPEAL FROM: District Court of the Eighth Judicial 

District,

In and for the County of Cascade,

The Honorable Marge Johnson, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

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Jeff R. Lynch; Lynch Law Firm, Great Falls, Montana

For Respondent:

Stuart L. Kellner; Hughes, Kellner, Sullivan & Alke, 

Helena, Montana

Submitted on Briefs: September 2, 1999

Decided: December 7, 1999

Filed:

__________________________________________

Clerk

Justice Karla M. Gray delivered the Opinion of the Court.

1. ¶ Stephani A. Skites (Skites) appeals from the judgment entered by the Eighth 

Judicial District Court, Cascade County, on its Memorandum and Order granting the 

summary judgment motion filed by Blue Cross Blue Shield of Montana (Blue 

Cross). We affirm.

2. ¶ The sole issue on appeal is whether the District Court erred in granting summary 

judgment to Blue Cross.

BACKGROUND

3. ¶ On November 26, 1996, Skites filed a complaint with the Montana Human Rights 

Commission (MHRC) alleging discrimination in employment by Blue Cross, her 

employer, under both the Montana Human Rights Act and the Americans with 

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Disabilities Act. According to the complaint, Blue Cross discriminated against 

Skites on the basis of a physical disability, namely, right wrist DeQuervain's 

tenosynovitis. She alleged that Blue Cross first failed to accommodate her disability 

on January 2, 1996, and that "[t]he date the most recent or continuing discrimination 

took place was April 15, 1996." 

4. ¶ The MHRC issued a Notice of Dismissal and Notice of Right to Sue, determining 

that it lacked jurisdiction over Skites' complaint because she had not filed the 

complaint "within 180 days of the alleged discriminatory act as required by statute." 

The Notice set forth Skites' right to object to issuance of the Notice and the manner 

in which any objection would be processed by the MHRC. The Notice also advised 

that Skites could pursue her discrimination complaint by petitioning for appropriate 

relief in the district court within 90 days of receipt of the Notice. Skites received the 

Notice on December 31, 1996, and did not file any objections with the MHRC.

5. ¶ Skites subsequently filed a complaint in the District Court alleging that Blue Cross 

discriminated against her on the basis of her disability in violation of Montana law. 

More specifically, she asserted that the alleged discrimination began no later than 

January of 1996, and continued after that date until Blue Cross constructively 

discharged her because of her disability on July 5, 1996. Blue Cross answered the 

complaint and affirmatively asserted, as its Second Defense, that Skites' MHRC 

complaint was untimely under the statutory 180-day filing requirement and, 

therefore, her complaint in the District Court also was time barred. 

6. ¶ Shortly thereafter, Blue Cross moved for summary judgment on the basis that 

Skites' MHRC complaint was statutorily time barred and, as a result, a prerequisite 

to her filing in the District Court--namely, the timely filing of her MHRC 

complaint--had not been met. Skites opposed the motion, arguing that genuine 

issues of material fact existed which precluded summary judgment and that, even in 

the absence of such issues of material fact, Blue Cross was not entitled to judgment 

as a matter of law. After a hearing on August 26, 1998, the District Court issued its 

Memorandum and Order granting Blue Cross' motion for summary judgment and 

entered judgment accordingly. Notice of entry of judgment was served and Skites 

appeals.

STANDARD OF REVIEW

7. ¶ We review an appeal from a district court's summary judgment ruling de novo. 

Old Republic Nat. Title Ins. Co. v. Realty Title Co., 1999 MT 69, ¶ 19, 978 P.2d 

956, ¶ 19, 56 St.Rep. 286, ¶ 19 (citation omitted). In doing so, we apply the same 

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Rule 56, M.R.Civ.P., criteria used by that court. If the moving party demonstrates 

that no genuine issue of material fact exists, the burden shifts to the nonmoving 

party to establish, by more than mere denial or speculation, that a genuine issue does 

exist. If the district court determines that no genuine issues of fact exist, it then must 

determine whether the moving party is entitled to judgment as a matter of law. We 

review the district court's legal conclusions to determine whether the court erred. 

Bruner v. Yellowstone County (1995), 272 Mont. 261, 264-65, 900 P.2d 901, 903 

(citations omitted).

DISCUSSION

8. ¶ Did the District Court err in granting summary judgment to Blue Cross?

9. ¶ It is unlawful for a Montana employer to discriminate against a person in 

compensation or in a term, condition or privilege of employment because of 

physical disability. Section 49-2-303(1)(a), MCA (1995). At all times pertinent to 

this case, a person claiming to be aggrieved by such a discriminatory employment 

practice could file a written, verified complaint with the MHRC setting forth the 

particulars of the alleged discrimination. Section 49-2-501(1), MCA (1995). Section 

49-2-501(2)(a), MCA (1995), generally requires that the complaint be filed within 

180 days after the alleged unlawful discriminatory practice occurred or was 

discovered. Any complaint not timely filed as required by § 49-2-501(2)(a), MCA 

(1995), "may not be considered by the commission." Section 49-2-501(2)(c), MCA 

(1995). 

10. ¶ Moreover, § 49-2-509(7), MCA (1995), renders the provisions of the Montana 

Human Rights Act (Act) the exclusive remedy for acts constituting alleged 

employment discrimination under Montana law, and provides that no claim for 

relief based on such acts may be entertained by a district court other than via the 

procedures set forth in the Act. As a result, we held in Hash v. U.S. West 

Communications Services (1994), 268 Mont. 326, 333, 886 P.2d 442, 446, that 

timely filing before the MHRC is a prerequisite to filing a complaint alleging 

employment discrimination in district court.

11. ¶ In this case, the District Court determined that the material facts relating to 

whether Skites' MHRC complaint was timely filed were undisputed in that Skites 

filed her claim with the MHRC on November 26, 1996, 225 days after April 15, 

1996, the date stated in her complaint as the date of the most recent or continuing 

act of employment discrimination by Blue Cross. On those facts, the court 

concluded that Skites' MHRC complaint was not timely filed within the 180 days 

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allowed by § 49-2-501(2)(a), MCA (1995), and, as a result, Skites had not satisfied 

the Hash prerequisite to filing a discrimination complaint in the District Court, 

namely, the timely filing of a complaint with the MHRC. The court then concluded 

that Blue Cross was entitled to summary judgment as a matter of law and entered its 

order granting summary judgment accordingly. 

12. ¶ Skites contends the District Court erred with regard to both the absence of genuine 

issues of material fact and Blue Cross' entitlement to judgment as a matter of law. 

We address her contentions in turn.

13. ¶ With regard to the existence of a genuine issue of material fact, Skites posits that 

the alleged date of the most recent or continuing discrimination in her complaint to 

the MHRC was "unartfully worded" and that, had it been properly worded, it would 

have stated that the discriminatory acts began on April 15, 1996, and continued 

thereafter. Indeed, she points out that her MHRC complaint alleged "[s]he was 

subsequently instructed to resign her position due to her physical disability." In 

essence, Skites contends that she should have worded--and meant to word--her 

MHRC complaint to state a later, unspecified date for the "date the most recent or 

continuing discrimination took place" and that the District Court should have 

interpreted her MHRC allegation in that fashion. 

14. ¶ There are several problems with Skites' contention. First, Skites posits in this part 

of her argument that the alleged discrimination began on April 15, 1996. This is 

clearly inconsistent with the other time-based allegation in her MHRC complaint, 

which was that Blue Cross first failed to accommodate her disability on January 2, 

1996.

15. ¶ More importantly, however, to accept Skites' approach would be to prevent the 

MHRC from having the ability to determine, from the face of an MHRC complaint, 

whether the complaint was timely filed under § 49-2-501(2)(a), MCA (1995), and, 

correspondingly, whether it had jurisdiction to consider the complaint. Similarly, the 

absence of a date certain in the MHRC complaint would prevent district courts from 

being able to determine whether an MHRC complaint was timely filed and, 

therefore, whether the Hash prerequisite to filing a discrimination complaint in 

district court--namely, the timely filing of an MHRC complaint--had been met. We 

reject the notion that a date not set forth in an MHRC complaint--whatever the 

complainant's intent may have been--can create a genuine issue of material fact 

precluding summary judgment based on the statutory 180-day period of limitation 

for filing an MHRC complaint. 

16. ¶ Skites also contends that, in her complaints to both the MHRC and the District 

Court, she "goes on to allege, in a more clear fashion, that she was constructively 

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discharged from her employment on July 5, 1996," a date after April 15, 1996. It is 

true that Skites' complaint in the District Court alleged that she was constructively 

discharged by Blue Cross on July 5, 1996. It is not true, however, that the July 5, 

1996, date appears in her MHRC complaint. As discussed above, Skites' MHRC 

complaint alleges that the date the most recent or continuing discrimination took 

place was April 15, 1996, and no later date appears in her MHRC complaint. Thus, 

this contention also fails to raise a genuine issue of material fact. 

17. ¶ Skites also attempts to create a genuine issue of fact by referring at some length to 

matters contained in Blue Cross' response to her MHRC complaint, which she 

attached as an appendix exhibit to her brief on appeal to this Court. That response, 

however, is not part of the record on appeal and, as a result, we will not consider it 

or Skites' related arguments. See Johnson v. Killingsworth (1995), 271 Mont. 1, 3, 

894 P.2d 272, 273 (citation omitted). 

18. ¶ We conclude that no genuine issue of material fact exists with regard to either the 

date set forth in Skites' MHRC complaint as the date on which the most recent or 

continuing act of discrimination by Blue Cross took place or that the stated date is in 

excess of 180 days prior to November 26, 1996, the date on which Skites filed her 

MHRC complaint. Therefore, we hold that the District Court did not err in 

determining that no genuine issues of material fact existed which would preclude 

summary judgment for Blue Cross.

19. ¶ Skites argues next that, notwithstanding whether any genuine issues of fact 

existed, the District Court erred in concluding that Blue Cross was entitled to 

judgment as a matter of law via application of the 180-day limitation period in § 49-

2-501(2)(a), MCA (1995), and the Hash rule that a timely MHRC complaint is a 

prerequisite to filing a discrimination complaint in district court. Conceding our 

determination in Hash that failure to timely file a complaint with the MHRC 

precludes filing in the District Court, Skites asserts that the present case is 

distinguishable and, therefore, Hash is not controlling. We disagree.

20. ¶ Skites' argument is that "[i]n Hash, the employee's complaint to the Human Rights 

Commission was actually untimely" and the employee merely sought to "bootstrap" 

her untimely claim by raising it in district court after filing an ill-fated complaint 

with the MHRC. She contends that, unlike Hash, her MHRC complaint was timely 

and was erroneously rejected by the MHRC. Skites' attempt to distinguish Hash

ignores the facts, discussed above, that her MHRC complaint alleged the most 

recent or continuing act of discrimination as taking place on April 15, 1996, and that 

she filed her MHRC complaint on November 26, 1996, some 225 days later. 

Applying § 49-2-501(2)(a), MCA (1995), to those facts, it is clear that Skites did not 

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file her MHRC complaint within the 180 days set forth in the statute and, as a result, 

that the MHRC properly determined it did not have jurisdiction over the untimely 

complaint. Under Hash, and like Hash, we conclude that Skites' failure to timely file 

with the MHRC precluded her ability to prosecute her discrimination complaint in 

the District Court.

21. ¶ We hold that the District Court did not err in concluding that Blue Cross was 

entitled to judgment as a matter of law or in granting its motion for summary 

judgment.

22. ¶ Affirmed.

/S/ KARLA M. GRAY

We concur:

/S/ J. A. TURNAGE

/S/ JAMES C. NELSON

/S/ JIM REGNIER 

Justice Terry N. Trieweiler dissenting.

23. ¶ I dissent from the majority's conclusion that the complaint Stephani A. Skites filed 

with the Montana Human Rights Commission was untimely on its face.

24. ¶ Skites alleged that "continuing discrimination took place on April 15, 1996." She 

later explained in her complaint that "she returned to work on April 15, 1996. No 

accommodations had yet been made. She was subsequently instructed to resign her 

position due to her physical disability."

25. ¶ Finally, Skites alleged that her employer violated the Montana Human Rights Act 

for the following reasons: "A. Accommodations for physical disability were never 

met."

26. ¶ It is clear from reading all the allegations of Skites complaint rather than the few 

words on which the majority opinion focuses that Skites alleged that she was 

discriminated against based on a physical handicap because when she returned to 

work for her employer on April 15, 1996, her employer refused to accommodate her 

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disability and she was, therefore, forced to resign. The necessary conclusion from 

her allegations is that the discrimination continued until she was forced to resign. 

While it is true that no specific date of resignation is alleged in the complaint, that 

doesn't mean, as the majority concludes, that the last discriminatory act alleged 

occurred on April 15, 1996 and that the complaint is therefore barred based on the 

statute of limitations as a matter of law. At best, there was an issue of fact regarding 

the last discriminatory act which could have and should have been resolved by an 

evidentiary hearing or an order requiring more specific pleadings.

27. ¶ Skites' allegation that discrimination based on disability is a continuing offense for 

purposes of determining when the statute of limitations begins to run is supported by 

federal law interpreting the federal counterpart to Montana's Human Rights Act. See 

Harmon v. Fred S. James & Co. of Colorado, Inc. (Colo. App. 1994), 899 P.2d 258, 

261.

28. ¶ A federal district court defined the continuing violation doctrine as:

That theory, applicable in discrimination lawsuits in which the alleged 

discriminatory action is ongoing by nature rather than a distinct or isolated event, 

tolls the running of the statute of limitations until the occurrence of the last instance 

of the allegedly discriminatory activity.

Equal Employment Opportunity Comm'n v. Westinghouse Elec. Corp. (D.N.J. 

1986), 646 F. Supp. 555, 565. Therefore, as a matter of law, if Blue Cross 

discriminated against Skites as alleged in Skites' complaint, the discrimination 

continued until the date of her discharge and the 180-day period for filing her 

complaint with the Human Rights Commission did not begin to run until that date. 

There is no precedent for concluding that because Skites failed to allege that date in 

her complaint, the complaint is defective as a matter of law on its face. Nor is any 

authority to that effect cited by the majority.

29. ¶ The majority opinion states in paragraph 4 that Skites was inconsistent when she 

alleged that Blue Cross first failed to accommodate her on June 2, 1996 and that its 

discrimination began again on April 15, 1996. There is nothing inconsistent, 

however, about Skites' allegations. She was off of work for a period of time prior to 

January 2, 1996 for health related reasons. When she returned to work, she alleges 

that her employer failed to accommodate her physical impairment. She was off work 

again for a period of time prior to April 15, 1996 for the same reasons. She alleged 

that once again when she returned to work on April 15 her employer refused to 

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accommodate her physical impairment. There is nothing inconsistent about those 

allegations.

30. ¶ In paragraph 15 of its opinion the majority bemoans the fact that Skites' method of 

draftsmanship would "prevent the MHRC from having the ability to determine, from 

the face of an MHRC complaint, whether the complaint was timely filed . . . ." So 

what? There is no legal requirement that a court or agency be able to determine from 

the face of a complaint that it was timely filed. If a party objects to a complaint on 

the basis that it was untimely, the complaint can be amended or further information 

provided. That does not seem like a cumbersome or unreasonable process to me. 

Nor is any authority provided by the majority for their conclusion that every forum 

in which a complaint is filed has to be able to determine from the face of the 

complaint whether it was filed within the time period provided for by the 

appropriate statute of limitations.

31. ¶ For these reasons, I conclude that our decision in Hash v. U.S. West 

Communications Services (1994), 268 Mont. 326, 886 P.2d 442 is distinguishable 

from this case based on its underlying facts and that the District Court erred when it 

dismissed Skites' complaint as a matter of law. Therefore, I dissent from the 

majority's conclusion which affirms the judgment of the District Court.

/S/ TERRY N. TRIEWEILER 

Justice William E. Hunt, Sr., concurs in the foregoing dissent of Justice Terry N. 

Trieweiler. 

/S/ WILLIAM E. HUNT, SR.

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