NO. 94-109

IN THE SUPREME COURT OF THE STATE OF MONTANA

1994

TINA HASH,

Plaintiff and Appellant,

-vsU.S. WEST COMMUNICATIONS SERVICES,

a corporation and RUSS CRAVENS

and his marital community,

Defendants and Respondents.

APPEAL FROM: District Court of the First Judicial District,

In and for the County of Lewis and Clark,

The Honorable Jeffrey Sherlock, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Dustin Deissner; Van Camp & Bennion, Spokane,

Washington

Russell K. Jones, Attorney at Law, Spokane,

Washington

For Respondent:

Ronald F. Waterman; Gough, Shanahan, Johnson

& Waterman, Helena, Montana

Filed:

Submitted on Briefs: August 4, 1994

Decided: December 19, 1994
Justice John Conway Harrison delivered the Opinion of the Court.

Tina Hash (Hash) appeals the order of the First Judicial

District, Lewis and Clark County, dismissing her discrimination

complaint based on the expiration of the statute of limitations

period. We affirm.

Three issues are presented.

1. Did the District Court err in failing to hold as a matter

of law, that the date of notification of elimination constituted

the date of discovery of the discriminatory acts, thus beginning

the relevant time periods?

2 . Did the District Court err by holding that the timely

filing of a Human Rights Commission complaint is a prerequisite to

filing suit on a discrimination complaint where the Human Rights

Commission has issued a right-to-sue letter?

3 . Did the District Court err by failing to find a genuine

issue of material fact as to whether the time period for filing a

claim was equitably tolled?

After working for U.S. West for almost thirteen years, Hash

was informed on June 19, 1991, that her job position was being

combined with another position and, therefore, that her job would

be eliminated. Hash applied for another U.S. West position but was

not offered any other job. Her position was eliminated on January

31, 1992, as planned. Hash contends that in June 1991 she was told

her position would be eliminated, not that she would be fired, and

that she applied for another job before the elimination of her

position in January 1992. She contends she did not know she would

2
be deprived of a job until she was not offered another position

after January 1992.

Pursuant to a U.S. West company policy for handling intracompany complaints, Hash filed a discrimination complaint with U.S.

West personnel and the U.S. West equal employment office (EEO) in

December 1991. She was referred to another U.S. West employee in

Minneapolis, Minnesota, and then to U.S. West's regional equal

employment officer. In May 1992 the regional officer advised Hash

that he found no discrimination. On June 5, 1992, Hash filed

allegations against U.S. West and her supervisor Russ Cravens (U.S.

West) with the Human Rights Commission (HRC). On July 24, 1992,

the HRC wrote to Hash that it had no authority in the matter

because the allowable time to file had expired. The HRC also

offered to issue a right-to-sue letter, allowing Hash to pursue her

claim in court. The HRC issued a right-to-sue letter on December

9, 1992. Hash filed the current action on March 3, 1993.

The District Court granted U.S. West's motion for summary

judgment, concluding that the HRC provides the exclusive remedy to

parties alleging unlawful discriminatory practices and the filing

period for Hash's complaint expired prior to her filing.

Summary judgment is properly granted only when there is no

genuine issue as to any material fact and the moving party is

entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P.;

Toombs v. Getter Trucking, Inc. (1993), 256 Mont. 282, 284, 846

P.2d 265, 266. To satisfy its burden of proving that there is a

complete absence of material fact, "the movant must make a clear

3
showing as to what the truth is so as to exclude any real doubt as

to the existence of any genuine issue of material fact." Toombs,

846 P.2d at 266. We apply the same standard of review as that used

by the district court. Toombs, 846 P.2d at 266.

Did the District Court err in failing to hold, as a matter of

law, that the date of notification of elimination constituted the

date of discovery of the discriminatory acts, thus beginning the

relevant time periods?

A cause of action accrues under the Human Rights Act (Act)

when "the alleged unlawful discriminatory practice occurred or was

discovered." Section 49-2-501(2) (a), MCA. On June 19, 1991, U.S.

West notified Hash that on January 31, 1992 her position would be

eliminated. Hash argues that the statutory period started at the

termination date because she hoped and believed, up to the time of

termination, that she would be given another U.S. West position.

We disagree.

If there was a discriminatory act in this case, it occurred

when U.S. West notified Hash of its decision to eliminate her

position. It was at that time that Hash discovered the alleged

discriminatory practice. Hash's hopes and beliefs cannot

contradict the fact that she discovered the alleged discriminatory

act(s) on June 19, 1991. In this case, Hash did not support her

position that her cause of action did not accrue on June 19, 1991.

We hold that the District Court did not err in concluding that the

alleged discriminatory practice was discovered and accrued on June

4
19, 1991 when Hash was advised that her position would be

eliminated.

II

Did the District Court err by holding that the timely filing

of a Human Rights Commission complaint is a prerequisite to filing

suit on a discrimination complaint, where the HRC has issued a

right-to-sue letter?

The Act is administered by the HRC. Three statutory

provisions lead us to conclude that Hash's complaint is barred.

First, HRC enforcement requires that discrimination-related

complaints, such as Hash's, be filed with the HRC within 180 days

after the alleged unlawfully discriminatory action occurred or was

discovered. Section 49-2-501(2) (a), MCA. Alternatively, if the

complainant initiates efforts to resolve the dispute "by filing a

grievance in accordance with any grievance procedure established by

a collective bargaining agreement, contract, or written rule or

policy, the complaint may be filed within 180 days" of the

conclusion of the grievance procedure if the procedure concludes

within 120 days after the alleged discriminatory practice, or

within 300 days if the grievance procedure does not conclude within

120 days. Section 49-2-501(2) (b), MCA. Second, § 49-2-501(2) cc),

MCA, provides that complaints not filed within the specified period

"may not be considered by the [Human Rights Clommission." Third,

the Act provides that the district court filing procedures in the

Act provide the exclusive remedy and procedures to make claims

alleging discrimination. Section 49-2-509(7), MCA.

5
Applying the statutory time limits to Hash's claim, we

conclude that Hash's claim is barred because it was filed too late

under any of the statutory provisions. On June 19, 1991, U.S. West

notified Hash that her position would be eliminated; we concluded

above that that was the date of the alleged discriminatory act. On

June 5, 1992, 351 days after the alleged discriminatory act, Hash

filed her claim with the HRC. Accordingly, Hash did not comply

with the 180-day filing requirement of § 49-Z-501(2) (a), MCA, and

her complaint was barred under that section. Section 49-2-

501(2) (a), MCA.

In the alternative, we determine whether Hash complied with

the 300-day time limit set forth in 5 49-2-501(2) (b), MCA. Hash

testified in her August 20, 1993 affidavit that she followed what

she believed to be a written U.S. West policy for handling a

discrimination complaint within the company. The record is not

clear on the specifics of U.S. West's grievance policy.

Nevertheless, assuming that Hash initiated whatever intra-company

grievance policies were available to her in December 1991, when she

filed her complaint with U.S. West's personnel officer, that

grievance procedure concluded in late May 1992, when Hash was

notified of U.S. West's conclusion that it found no discrimination.

This was more than 120 days after she initiated the U.S. West

grievance, so we must then examine whether Hash filed her claim

within 300 days after the alleged unlawful discriminatory practice

occurred. Section 49-2-501(2) (b), MCA. Again, Hash filed her

claim 351 days after the alleged discriminatory act. Under this

6
analysis, too, Hash's claim is barred by § 49-Z-501(2) (b) and (c),

MCA.

Hash clearly did not file with the HRC within 180 days of the

alleged discriminatory acts, as required by 5 49-2-501(2) (a), MCA.

Similarly, since the grievance procedure initiated in December 1991

did not conclude within 120 days, Hash did not file within the 300-

day period allowed under 5 49-2-501(2) (b), MCA. Her complaint with

the HRC was thus time-barred and properly rejected by the HRC.

Section 49-2-501(2) (c), MCA.

The HRC's issuance of a right-to-sue letter does not toll the

statutory period. A HRC right-to-sue letter constitutes "the

completion of the administrative process with regard to any

complaint of discrimination in which a right to sue letter is

issued." 24.9.264(l), ARM. The HRC does not have the authority to

establish jurisdiction in a district court. Rather, a right-to-sue

letter is one mechanism permitting a claimant to proceed beyond the

HRC, assuming jurisdiction in the district court is otherwise

legally established.

In the instant case, the HRC concluded that Hash's complaint

was time barred and could not be considered by the HRC. In a

letter to Hash, the HRC stated it would docket her complaint and

issue a right-to-sue letter so that she could pursue the matter in

district court. The letter further advised that Hash would "have

to establish that the matter was within the jurisdiction of the

Commission." See 5 49-2-509(3)(a), MCA; see qenerally 24.9.262A265, ARM. She was unable to do that.
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.

In 1987, the Legislature amended the Illegal Discrimination

chapter to provide that:

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 violation of the

discrimination provisions of Arzicle II, section 4, of

the Montana constitution or 49-l-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.

Section 49-2-509(7), MCA. The Legislature was aware that under an

argument like Hash's, "persons alleging acts that violate the

discrimination provisions of the [Act] . . need no longer

vindicate their rights under the provisions of [the Act] .'I

Harrison, 797 P.2d at 203; quoting Comments from the Hearing on

House Bill 393 Before the Senate Judiciary Committee, 50th

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

8
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 remedy for

Hash's discrimination claim.

III

Did the District Court err by failing to find a genuine issue

of material fact as to whether the time period for filing a claim

was equitably tolled?

This Court previously considered the doctrine of equitable

tolling, which applies when an "injured person has several legal

remedies and, reasonably and in good faith, pursues one." Erickson

v. Croft (1988), 233 Mont. 146, 152, 760 P.2d 706, 709; citing

Collier v. City of Pasadena (App. 1983), 191 Cal.Rptr. 681, 684;

Harrison, 797 P.2d at 208.

In this case the doctrine of equitable tolling is not

applicable because Hash did not have more than one legal remedy

available to her, any one of which she could pursue, in good faith.

She had one legal remedy. As we have indicated above, it was

Hash's obligation to first timely file her complaint before the

HRC, timely filing before the HRC being a prerequisite to her

filing in District Court. While she had the right to pursue her

intra-company remedy, she was required to do that within the

context of the time limitations imposed for filing before the HRC,

9
as we have discussed above.

Affirmed.

10
Justice Terry N. Trieweiler dissenting.

I dissent from the majority's conclusion that an untimely

complaint to the Human Rights Commission precludes a timely

complaint in District Court.

U.S. West's argument, with which the majority agrees, is that

because Title 49, Chapter 2, of the Montana Code Annotated (the

Act), is the exclusive remedy for victims of discrimination, a

district court complaint cannot be filed unless there was a timely

complaint filed before the Human Rights Commission.

I agree that pursuant to § 49-2-509(7), MCA, the provisions of

the Act provide the exclusive remedy for victims of discrimination.

However, I also conclude that the plain language of the Act permits

the District Court complaint in this case, and that it is the

majority who have avoided the Act by superimposing their own

procedural requirements which are not otherwise provided.

The problem with the majority opinion is that its entire

analysis focuses on whether Hash's complaint before the Commission

was timely. Having concluded that it was not, the majority then

comes to the further conclusion, without any real analysis, that

the District Court complaint must also have been untimely.

However, based on the terms of the Act, the latter conclusion does

not follow from the first.

Hash concedes that if U.S. West's act of discrimination was

notification that her position was being eliminated, then her

complaint with the Commission was untimely. Therefore, the

analysis should begin from that point.

1 1
Section 49-2-501(c), MCA, provides that "[alny complaint not

filed within the time set forth herein may not be considered by the

commission.'1 In other words, the Commission has no jurisdiction to

consider an untimely complaint. However, § 49-2-509(3) (a), MCA,

provides that:

(3) The commission staff may dismiss a complaint

filed under 49-2-501 and allow the complainant to file a

discrimination action in district court if:

(a) the commission staff determines that the

commission lacks jurisdiction over the complaint . .

That is exactly what the Commission did in this case. The

only remaining question then is whether, once the letter

authorizing suit was issued, Hash filed a timely complaint in the

District Court.

Section 49-2-509(5), MCA, provides in part that:

Within 90 days after receipt of a notice of dismissal

under section (3) the complainant may petition the

district court in the district in which the alleged

violation occurred for appropriate relief.

In this case, the Commission issued its letter to Hash

authorizing her to file her claim in District Court on December 9,

1992. Her complaint was filed on March 3, 1993, within the 90 days

authorized under the Act. It was, therefore, timely pursuant to

the plain language of the Act.

The only way to avoid this conclusion is to ignore the plain

language of the Act in favor of the majority's own public policy

considerations. To do so violates, rather than follows, the

exclusive remedy provision found at 5 49-2-509(7), MCA.

The majority concludes that:

12
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.

That conclusion is incorrect. The Commission is not required

to issue a right-to-sue letter in all cases where the complaint to

the Commission is untimely. Section 49-Z-509(2) (b), MCA, provides

that:

(2) The commission staff may refuse to permit

removal of a case to district court if:

ibj . .the party requesting removal has waived the

right to request removal to the district court . .

It would not be an abuse of discretion for the Commission to

conclude that a claimant had waived his or her right to request

removal based on the length of time by which the Commission

complaint was late. However, allowing the Commission to exercise

discretion by choosing to issue a right-to-sue letter under

subparagraph (3) (a), or declining to issue a right-to-sue letter

pursuant to subparagraph (2) (b), strengthens the Act, rather than

weakening it, by providing the Commission with greater latitude to

have claims decided on their merits, rather than based on

procedural defects.

For these reasons, I dissent from the majority's conclusion

that Tina Hash's complaint in the District Court was barred by her

failure to file a timely complaint before the Human Rights

Commission. I would reverse the judgment of the District Court.

Because of my conclusion that Tina Hash's claim in the

District Court was timely pursuant to the plain language of the

13
Act, I do not find it necessary to discuss the other issues raised

on appeal. However, I do not intend to imply by my failure to do

so that I agree with the majority's conclusions under either

Issue I or Issue III.

JusRL/ice

Justice William E. Hunt, Sr., joins in the foregoing dissenting

opinion.

Justice

1 4
December 19, 1994

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the

following named:

Dustin Deissner, Esq.

Van Camp & Bennion, P.S.

W. 1707 Broadway

Spokane, WA 99201

Russell K. Jones, Esq.

w. 9 Post #315

Spokane, WA 99202

Ronald F. Waterman, Esq. (&&cc/ v9

Gough, Sham-&an, Johnson & Waterman

P.O. Box 1715

Helena, MT 59624

ED SMITH

CLERK OF THE SUPREME COURT

STATE OF MONTANA