NO. 92-436 IN THE SUPREME COURT OF THE STATE OF MONTANA 1994

TIMOTHY L. GROVE and BECKY BARRY, Plaintiffs and Appellants,

MONTANA ARMY NATIONAL GUARD, RONALD A. OESTERLE, LEROY H. HENDERSON and SCOTT J. SMITH.

APPEAL FROM: District Court of the First Judicial District, In and for the County of Lewis & Clark, The Honorable Thomas C. Honzel, Judge presiding.

COUNSEL OF RECORD: For Appellants: Elizabeth A. Best, Best Law Offices, Great Falls, Montana For Respondents: Captain Thomas S. Muri, Staff Judge Advocate, Department of Military Affairs, Montana National Guard, Helena, Montana

Filed: Submitted on Briefs: February 3, 1994 Decided: April 18, 1994Justice Fred J. Weber delivered the Opinion of the Court. This is an appeal from a dismissal 

### of this actionby the

### First Judicial District Court, Lewisand Clark County,due to the court's determination that it did not have jurisdiction. The court determined that the plaintiffswere on federal active duty for the Montana Army National Guard (the Guard) and not subject to the court's jurisdiction. We reverse and remand. We address the following issue as being dispositive of the case: Did the court err by dismissing the action due to lack of jurisdiction based upon the determination that plaintiffs were on federal active duty with the Guard? Plaintiff Becky Barry (Barry) was hired by the Guard as a billeting clerk at the Fort Harrison training site in February of 1988, and subsequently moved into the position of administrative clerk on October 2, 1988. Ronald Oesterle (Oesterle) was the training site manager. Barry was supervised by defendants LeRoy Henderson, Scott Smith, and Oesterle. Barry alleges that she was sexually harassed by defendants

over an extended period of time. In the fall of 1989, Barry filed sexualharassment claims against Oesterle, Hendersonand Smithwith the Guard and also with the Equal Employment Opportunity Office

(EEOC). Oesterle terminated Barry shortly after Barry filed her claims. Oesterle also terminated ten other persons, including Grove, at approximately or about the same time claiming a lack of funding. Several months later, eight of the eleven were rehired. Neither Barry nor Grove were hired 

### back despite their seniority tothe other employees. Timothy L. Grove (Grove)

### , husband of Barry, filed a written statement supporting the sexual harassment claim. After Grovewas not rehiredby theGuard,he filedhis own claim against theGuard. Barry and Grove alleged that they were not rehired in retaliation for Barry's claim. The Guard sent an investigator from the State AdjutantGeneral'sofficetoresearchtheclaims. The investigator found evidence of wrongful discharge in both Barry's and Grove's termination and failure to be rehired. The Guard adopted the finding of its investigator and determined that Barry and Grovehad been discriminated against and were due back pay. Barry filed a claim with the Human Rights Commission (HRC)inJune of 1990. Initially,theHRC answered that it did not have jurisdiction because it considered the Guard to be

a federal agency. Barry sought a reconsideration of this decision and the HRC subsequently issued a "Right to Sue Letter." The Guard then changed its legal position stating that it could not issue back pay and that the Title 

### VII action was not appropriate. The Guard determined that the only way Barry and Grove could receiveback pay was to file an action for "Correction of Military Records." Subsequent to this decision, on March 25, 1992,Barry and Grove filed 

### a Complaint and Demand for Jury Trial in the Montana FirstJudicial District Court, Lewis & Clark County. Defendants made a motion to dismiss for failure to exhaust administrative remedies. On August 14, 1992,the court issued its Memorandum and Orderdismissing plaintiffs' complaint against all defendants because Barry and Grove were on federal active duty at the time of the discrimination and they could not pursue their claims in state court. It is from this order that plaintiffs appeal. Did the court err by dismissing the action due to lack of jurisdiction based upon the determination that plaintiffs were on federal active duty with the Guard? The District Court dismissed the action based upon its determination that it had no jurisdiction because the Guard is a federal agency. According to the court,plaintiffsmustpursue the option provided them through the Guard's administrative agency. On appeal,plaintiffs argue that the Guard is a state entity and has acted as such throughout the course of this litigation. While plaintiffs admit to thedual nature of the Guard, they argue that its dual role does not make the Guard a federal entity. Plaintiffs contend that while members of the Guard unit serve in thenational armed forcesand follow federalrulesand regulations, they are also the state national guard and are subject to state rules and regulations. According to plaintiffs, at the times relating to the claims of harassment, they were employed in their state capacity. The Guard argues that it has a dual character but that it follows federal laws and regulations and not those of the state. TheGuard contends that federal lawprohibits it from lawsuits such

as this in state courts. According to the Guard,plaintiffs1only redress is to have their records corrected.In reviewing a motion to dismiss, this Court will review the complaint in the light most favorable to plaintiffs and we will affirm the court'sdismissal only ifwedeterminethatplaintiff is not entitled to relief under any set of facts which could beproven in support of the claim. King v. State (l993),259 Mont. 393, 856 P.2d 954. The laws that are applicable to the alleged charges are those covered by both state and federal discrimination law. The Montana Human Rights Act and the Montana Constitution prohibit discrimination because of gender. Section 49-2-303,MCA; Art. 11, Sec. 4, 1972 Mont.Const. ~itle VII of 1964 Civil Rights Act and the 1972 amendments to that Act prohibit the same type of discrimination to all employees including those of the federal government. 42 U.S.C. 2000e. The record shows that members of the Guard are informed that both sets of laws apply to them. No issue regarding Title VII has been raised in the appeal to this Court. We limit our consideration to theDistrictCourt'sdecision that itdid not have jurisdiction to apply state laws to the Guard and the plaintiffs. This Court has determined that members of the Guard serve a dual responsibility, to the State of Montana and also the United States of America: In times of national emergency as declared by Congress, the militia may be called to active federal duty by the Presidentpursuant to 10U.S.C. 

### 5 3500. At such times themilitia is subject to federal authority, and operates under rules virtually identical to the United StatesArmy. During times of state emergency, the militia is subject to call for serviceby the Governor. Art. VI, 

### 5 13, 1972 Mont. Const. Then the militia operates under state authority, but only to the extent that the staterules conform to applicable federal law. Section 10-1- 105,MCA. In times of peace, the militia operates somewhere between 

### the two. Evans v. Montana National Guard (1986), 223 Mont. 482, 483, 726

The idea of a dual statushas been establishedby the Supreme Court of the United States. In Perpich 

### v. Department of Defense

(1990),496 U.S. 334, 110 S.Ct. 2418, 110 L.Ed.2d 312, the Supreme Court was faced with a question concerning whether Congress may authorize the President to order members of the National Guard to active duty for purposes of training outside the United States duringpeace timewithout either the consentof a stategovernor or the declaration of a national emergency. The Court stated: 

### Since 1933 all persons who have enlisted 

### in a state National Guard unit have simultaneously enlisted in the National Guard of the United States. In the latter capacity theybecame apart of theEnlisted Reserve Corps of the Army,but unless and until ordered to activeduty 

### in the Army, they retain their status as members of a separate state Guard unit. Perpich, 110 S.Ct. at 2425. Therefore, while the Guard units consist of members enlisted in the United States Army, they are also a Montana military unit consisting of Montana citizens: Our citizens may not be stripped of basic rights simply because they have doffed their civilian clothes. Then Chief Justice Warren, The Bill of Rishts and the Militia, 37 N.Y.U.L.Rev. 181, 188 (1962), as cited in E. Hawkens, 

### The Justiciability 

### of Claims Brouqht by National Guardsmen Under the Civil ~iqhts Statutes for Injuries Suffered in the Course ofMilitary Service, 125 Mil.L.Rev. 99, 101 (1989). Our own state constitution makes clear which of the governmental entities controls: Section 13. Militia. (1) Thegovernor iscommander-inchief of the militia forces of the state, except when they are in the actual service of theUnited States. 

## . . Art. 

### VI, Sec. 13, 1972 Mont.Const. While the District Court determined thatGrove and Barrywere

on federal active duty and therefore, "in theactual serviceof the United States," the court cites no evidence from which it could have determined this fact. The record is devoid of any proof that the plaintiffs were on "federal"active duty as opposed to "state" duty.What the file does contain is an affidavit by Grove stating unequivocally that at all timespertinent hewas under orders from the Adjutant General of the State of Montana. In response, the Guard finds fault with Grove for not supplying a copy of his orders. However, the Guard does not supply a copy of the orders which they say derive from the federal government. The only evidence suppliedby the Guard is a pay adjustment document signed by the State of Montana Comptroller. This document allegedly indicates that the source of monies paid to Grove was the United StatesGovernment. This is far from clearand isnot sufficientto establish that Grove was on federal active duty. Nor does the Guardmake clear how the funding of Guard units from federal funds negates the idea of a state militia under control of a state governor.The 

### record showsno indication that plaintiffs were called to federal 

### active duty during the applicable 

### time periods here. The District Court stated that Grove and Barry were 

### on federal active dutypursuant to 32U.S.C. 5 502(f)

# . However,that federal statute is merely descriptive of National Guard training. Subsection (f) states that regulationsprescribed by the Secretary of theArmy or Secretary of theAir Forcewill govern training. There is nothing in the record to indicate that at the times involved in this suit, Grove and Barrywere "training." In fact,the federal statutethat precedes the aforementioned statute states that: The training of the National Guard shall be conducted by the several States 

## . . . 32 U.S.C. 5 501(b). The federal statute does not establish that under the limited facts known to theDistrictCourt,Grove or Barry

were under the control of the federal entity. If Barry and Grove were under federal orders pursuant to 32U.S.C. 

### 5 502(f)

### , theGuard should have submitted the same but failed to do so. In a similar manner, the Guard has not addressed 10 U.S.C. 3495, which in substance provides thatmembers of theArmy National Guard are not in active federal services except when ordered thereto under the law. Again, if proof existed to show 

### that Grove and 

### Barry were on active federal duty, theGuardwas obligated to submitproof of the

same but failed to do so. The Guard argues that Evans controls the present case. We disagree. While Evans is informative in its portrayal of the character of the Guard,theholding of the casedealt specifically with a tort claim. We there determined that Evans had no right to

### sue another member of the Guard under the State Tort claims Act because that statute makes such claims appropriate only for a "governmentalentity1! 

### which the legislature

### hasdefined

### asa "state or political subdivision.ll Sections 2-9-101(3) and 2-9-102, MCA. We held that the Guard 

### is not a political subdivision--clearly defined in our statutes as "any county, city, municipal corporation, school district, special improvement or taxing district, or any other political subdivision or public corporation." section 2-9-101(5), MCA; Evans, 223 Mont. at 484, 726 P.2d 

### at 1161. Wewere careful in Evans not to rule on 

### anyAct other than the State Torts Claims Act. Therefore, it 

### has no precedential value when considered in concert with the Montana Human Rights Act. We conclude that dismissal of the plaintiffs1 action was improperbecause the District Courthad no evidence before it from which to determine that Grove and Barry were on federal active duty. We hold that the District Court erred in concluding that it did not have jurisdiction, and therefore erred in dismissing the action. We reverse the dismissal of the action and remand for further proceedings consistent with this opinion. 1

chief justiceJustice William E. Hunt, Sr., specially concurring. 

### I concur 

### in the results reached in the majority opinion, but do not agree with all that is said therein.

Justice

### April

### 18,1994 CERTIFICATEOFSERVICE I

### herebycertify

### that thefollowingcertified

### orderwas sentbyUnitedStates mail,prepaid,tothe followingnamed:

Etibeth

### A.Best Best LawOfices P. 0. 

### Box

### 2114 Great Falls,MT 

### 59403 CaptainThomasA.Muri Assistant StaffJudgeAdvocate Departmentof Military Affairs Montana NationalGuard 

### 1001NorthMainStreet Helena,MT 

### 59620

EDSMITH CLERKOFTHESUPREME COURT