NO. 92-418 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

CRAIG S. LUECK, y,,ys::F:, F 

Plaintiff and Appellant, l..:..~>.e , ., ,~."< I .~ I ;i a,-. ~ ~- -vs- . .. ;, :C?1 ; . , * ii 1-l.i.J 

UNITED PARCEL SERVICE, 

6;LST.I Defendant and Respondent. s 8 

APPEAL FROM: District Court of the Seventh Judicial District, 

In and for the County of Dawson, 

The Honorable Dale Cox, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Michael G. Eiselein; Lynaugh, Fitzgerald, Eiselein 

& Eakin, Billings, Montana 

For Respondent: 

Steven Lehman and Chris Mangen, Jr.; Crowley, 

Haughey, Hanson, Toole & Dietrich, Billings, Montana 

Filed: 

Submitted on Briefs: January 7, 1993 

Decided: April 13, 1993 
Justice John Conway Harrison delivered the Opinion of the Court. 

c his is an appeal from the Seventh ~udicial ~istrict, Dawson 

County, the Honorable Dale Cox presiding. Appellant Craig Lueck 

(Lueck) appeals from an order granting summary judgment in favor of 

respondent United Parcel Service (UPS) and dismissing his 

retaliatory discharge complaint. We affirm. 

UPS hired Lueck as a part time delivery driver on ~pril 16, 

1984. He joined the Teamsters Union shortly after he was hired. 

In June 1986, Lueck became a full time driver, driving a tractortrailer combination on a 'Iswing run" three nights and one day per 

week. After driving on this schedule for approximately twenty 

months, Lueck was given a new route in February 1988, from Glendive 

to Wolf Point on a regular schedule. Another driver, who bad more 

seniority than Lueck, bid for and got Lueckls swing run. 

UPS discontinued the Glendive-Wolf Point run after only one 

week, and Lueck went back to part time driving. Around May 1, 

1988, the driver who had taken Lueckgs swing run took another 

position with UPS and Lueck took over the swing run again. By 

then, however, it had been changed. 

The revised swing run followed a schedule Lueck describes as 

llbizarre.lr It began at 1:00 p.m. on Sunday, when Lueck was 

scheduled to drive from Glendive to Billings, returning at 

approximately 2:00 a.m. on Monday morning. On Monday evening at 

7:00 he was scheduled to drive to Bismarck, returning at 

approximately 8:00 on Tuesday morning. On Wednesday he was 

scheduled to begin driving at 6:45 a.m., returning at approximately 

2 
7: 00 that evening, and on Thursday, he was scheduled to begin 

driving at 8:30 p.m., returning at 9:00 on Friday morning. 

After his first week on this schedule Lueck complained about 

lack of sleep. He spoke to his supervisors on three separate 

occasions, indicating that he was having serious problems and was 

unable to sleep. On June 9, 1988, Lueck reported to work at the 

UPS Center in Glendive and put on his uniform in preparation for 

leaving on the eveningus run. At that point he "flipped out," as 

he describes it, and went home without doing the run. H~S doctor 

prescribed anti-depressants and admitted him to Glendive community 

Hospital for treatment over the weekend of June 11-12, 1988. He 

was then referred to the Eastern Montana Mental Health Center for 

outpatient counselling. 

Don LaPlante, a counselor at the mental health center, 

described Lueck's Iupresenting problemw as a u~physical/psychological 

adverse stress reaction to working swing shifts as a truck driver 

for UPSH and recommended continuing anti-depressant medication as 

well as counselling. Lueck's family physician, Dr. J.E. Harkness, 

a Glendive osteopath, saw him in June 1988 and again on July 13, 

1988, when he reported that although Lueck appeared to be 

considerably improved, tlitts unlikely that he will be able to go 

back into such a swing shift as it was a direct causal effect of 

his acute hysterical depression episodes." In fact, Lueck never 

returned to work far UPS. 

On July 25, 1988, Lueck filed a claim for compensation with 

the Montana Division of Workers1 Compensation, stating that his 
"double swingv1 work sclledule had disrupted his sleeping and eating 

patterns, leading to severe physical fatigue, loss of weight, 

ringing in the ears, dizziness, headaches, nervousness and 

insomnia. This claim was denied by UPS'S insurer on August 24, 

1988, on the grounds that Lueckls condition was not compensable 

under the 1987 Workersf Compensation Act. Lueck never appealed the 

denial of his claim. 

Lueck also filed a claim under his credit disability insurance 

policy in July 1988. Dr. Harkness completed the required attending 

physician's statement on July 20, 1988, describing Lueckls current 

condition as "acute anxiety -- hysteria, stress reaction, 

depressionw and adding as a I1remarkw that Lueck "cannot do that 

type of shift switch work again.n 

Lueck occasionally played guitar with a band on weekend nights 

during the spring of 1988, until he became ill in June. In October 

1988 he again began playing with a band. On October 6, 1988, he 

filed a claim for disability benefits under a Teamsters Union 

insurance policy, but he never received any benefits because he had 

begun working in the band before the payments began, In connection 

with Lueck's Teamsters Union claim, Dr. Harkness completed a 

physiciangs statement indicating that October 11, 1988, was the 

?'date patient able to return to work." 

In November 1988, UPS learned that Lueck had started working 

again in a band, that he was not receiving benefits through the 

Teamsters Union, and that Dr. Harkness had approved his return to 

work on October 11, 1988. Joe Kriskovich, a Billings UPS manager, 
called Lueck at home on December 8, 1988, to verify this 

information and to ask why he had not returned to work for UPS. 

Lueck explained that Dr. Harkness had said that he could not return 

to the swing shift schedule. Kriskovich told Lueck that UPS had 

nothing in its files to document this statement. Eater on the same 

day, Lueck took a copy of the statement Dr. Harkness signed as 

attending physician on July 20, 1988, indicating that Lueck Itcannot 

do that type of shift switch work again,Ig to his supervisor in 

Glendive, for delivery to Kriskovich the next day. 

In the meantime, Kriskovich wrote Lueck a letter, dated 

December 8, 1988, telling him that he was no longer on authorized 

leave, that he was scheduled to return to work on Sunday, December 

11, 1988, and that his employment at UPS "could be terminated" if 

he did not return to work on December 11. Lueck did not 

communicate with UPS or return to work, and on December 12 he 

received a mailgram and a telegram from the UPS division manager in 

Billings, telling him that if he did not return to his regularly 

scheduled shift on Monday, December 12, his name would be removed 

from the employment records. Lueck again did not communicate with 

UPS or return to work, and on December 13 the division manager sent 

him an official separation letter terminating his UPS employment. 

Asked during his deposition why he ignored these messages from 

UPS, Lueck said: 

It was just inconceivable to me that they could have 

received this, that says I cannot return to the shift 

work and persist in calling me back to shift work without 

so much as checking with my doctor or having me checked 

out by a doctor to find out whether or not I am able to 

go back to work. 
On December 8, 1989, Lueck filed a complaint in District Court 

alleging that UPS had discharged him because he had filed a 

workers' compensation claim, in violation of the retaliatory 

discharge provision in the Workersv Compensation Act, 5 39-71- 

317(1), MCA, and that UPS had intentionally inflicted emotional 

distress by refusing to alter his work schedule in May 1988. In 

1991 Lueck amended his complaint by adding a new cause of action 

under § 39-71-317 (2) , MCA, alleging that UPS had failed to give him 

preference for a position that became vacant within two years after 

the date of his injury, as the statute requires. The District 

Court granted summary judgment on the amended complaint on May 14, 

1992, after oral argument on January 14, 1992. 

The issue on appeal is whether the District Court erred in 

granting summary judgment and dismissing Lueckls retaliatory 

discharge, preference, and emotional distress claims. We will 

address each of Lueckts claims separately. 

The ~etaliatory Discharqe claim 

Lueck contends that the ~istrict Court should not have 

dismissed his retaliatory discharge claim because the record 

contains sufficient facts from which a jury could infer that he was 

discharged for filing a workerst compensation claim. He relies on 

Lingle v. Norge Division of Magic Chef, Inc. (1988), 486 U.S. 399, 

108 S.Ct. 1877, 100 L.Ed.2d 410, for the proposition that employer 

motivation is a factual question and is not appropriate for summary 

judgment. In Linsle, however, the Supreme Court did not decide 

whether summary judgment was appropriate in a retaliatory discharge 
action. Instead, it held that the appellant's retaliatory 

discharge remedy under the Illinois Workers' compensation Act was 

not preempted by Section 301(a) of the Labor Management Relations 

Act of 1947, 29 U.S.C. 5 185(a). The relevant holding in Linsle 

f o11ows: 

[I]f the resolution of a state-law claim depends upon the 

meaning of a collective-bargaining agreement, the 

application of state law . . . is pre-empted and federal 

labor-law principles . . . must be employed to resolve 

the dispute. 

Linqle, 486 U.S. at 405-406. In the case before us as well, a 

decision on the merits of Lueck's retaliatory discharge claim can 

be made without reference to the collective bargaining agreement. 

See Foster v. Albertsons, Inc. (Mont. 1992), 835 P.2d 720, 49 

St.Rep. 638 (directed verdict based on 5 301 preemption reversed, 

following Linale, because appellant's wrongful discharge claim 

could be resolved without reference to the collective bargaining 

agreement). 

Here, however, the District Court granted summary judgment in 

favor of UPS, not because Lueck's claims were preempted by 5 301 

but because Lueck had failed to exhaust the remedies available to 

him under the collective bargaining agreement between his union and 

UPS. To support its argument that summary judgment was properly 

granted for this reason, UPS relies on Brinkman v. State (1986), 

224 Mont. 238, 729 P.2d 1301. 

In Brinkman, we upheld the district court's grant of summary 

judgment for the respondents based on the state-employee 

appellant's failure to exhaust his contractual remedies under a 
collective bargaining 'agreement. To the extent that Brinkman is 

based on federal preemption under 5 301, our holding there was 

overruled in Foster, 835 P.2d at 725. But to the extent that 

Brinkman requires an employee subject to a collective bargaining 

agreement to exhaust his remedies under that agreement, it is not 

overruled. We hold, as we held in Brinkman, that union employees 

"must attempt use of the contract grievance procedure agreed upon 

by employer and union as the mode of redress," for a "contrary rule 

which would permit an . . . employee to completely sidestep 

available grievance procedures in favor of a lawsuit has little to 

recommend it." 729 P.2d at 1305-1306. Accord, Fellows v. Sears, 

Roebuck & Co. (1990), 224 Mont. 7, 795 P.2d 484. 

The collective bargaining agreement in effect between UPS and 

the Teamsters Union in 1988 provides in pertinent part that: 

The right to process and settle grievances is wholly, to 

the exclusion of any other means available, dependent 

upon the provisions of this Article. 

The Union and the Employer agree that there shall be no 

strike, picketing, lockout, tie-up, or legal proceedings 

without first using all possible means of a settlement, 

as provided for in this Supplement . . . . The agreement includes specific steps for a discharged employee to 

follow in settling the grievance over his discharge, and ultimately 

provides for binding arbitration. 

Lueck attempted to meet with the Teamsters Union 

representative in Billings in September 1988, but the union 

representative broke their appointment. Concluding that relying on 

the union was "fruitless," Lueck did not attempt to contact the 

8 
union or enlist its support after he was discharged in December 

1988. Clearly, he did not attempt to use the grievance procedure 

in the collective bargaining agreement before he resorted to legal 

action in 1989. 

Even if Lueck had gone through the prescribed grievance 

procedure, however, his retaliatory discharge claim would fail for 

lack of evidence. To prove retaliatory discharge under 5 39-71- 

317, MCA, Lueck would have to show (1) that he was discharged and 

(2) that UPS'S motive in discharging him was to retaliate for his 

filing a claim under the Workers* Compensation Act. UPS amply 

documented its efforts to persuade Lueck to return to work, which 

were justified by the information it had at the time. From UPS'S 

point of view, Lueck simply abandoned his job without providing a 

coherent explanation and without filing a grievance after he was 

discharged. 

Summary judgment is appropriately granted where no genuine 

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

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

The party moving for summary judgment has the initial burden of 

demonstrating that "there is no genuine issue as to any fact deemed 

material in light of the substantive principles that entitle the 

movant to judgment as a matter of law." Fleming v. Fleming Farms, 

Inc. (1986), 221 Mont. 237, 241, 717 P.2d 1103, 1105-1106. Once 

the movant has met this burden, the party opposing the motion must 

show "by present facts of a substantial nature that a material fact 

issue does exist. Mere conclusory or speculative statements are 
insufficient to raise a genuine issue of material fact.I1 Mayer 

Bros. v. Daniel ~ichard Jewelers, Inc. (1986), 223 Mont. 397, 399, 

726 P.2d 815, 817 (citations omitted) ; see also First Security Bank 

of Bozeman v. Jones (1990), 243 Mont. 301, 303, 794 P.2d 679, 681, 

and Kenyon v. Stillwater County (Mont. l992), 835 P.2d 742, 744, 49 

St.Rep. 673, 674. 

Lueck has provided no facts to show or even suggest that UPS 

fired him in December for filing a workers1 compensation claim in 

July. Lueck must provide facts that support a reasonable inference 

that UPS1s motive was retaliatory, as mere assertions of a 

retaliatory motive are not enough to defeat a motion for summary 

judgment. See Kenvon, 835 P.2d at 745; Foster v. Arcata 

Associates, Inc. (9th Cir. 1985), 772 F.2d 1453, 1459. 

Lueck implies that because UPS knew of Dr. Harkness' statement 

on Lueck's July 1988 credit disability claim form, it could have 

had no reason other than retaliation for firing him. He does not 

explain why UPS should have given that statement greater weight 

than Dr. Harkness' later statement on Lueck's October 1988 

application for union benefits, which indicateathat Lueckwas able 

to work, or why UPS'S failure to give the earlier statement greater 

weight is evidence that he was fired in retaliation for filing a 

workers1 compensation claim. 

We hold that the District Court concluded correctly that Lueck 

did not raise a genuine issue of material fact regarding UPS1s 

motive for terminating his employment. 
The Preference Claim 

Section 39-71-317(2), MCA, provides that 

When an injured worker is capable of returning to work 

within 2 years from the date of injury and has received 

a medical release to return to work, the worker must be 

given a preference over other applicants for a comparable 

position that becomes vacant if the position is 

consistent with the worker's physical condition and 

vocational abilities. 

In his amended complaint, Lueck alleged that when a vacancy 

occurred in Glendive in March 1989, UPS was required by this 

statute to prefer him for it. UPS, however, did not notify Lueck 

that the position was available. 

The District Court dismissed this claim on the grounds that 

(1) Lueck was not an injured worker under the definition in the 

Workers1 Compensation Act, and (2) if he had been injured, he would 

have had to apply for the preference within two years after the 

injury. Lueck made no such application. 

Under 5 39-71-119, MCA, an "injury" consists of phvsical harm 

to the body and is caused by an accident, which is defined as an 

I1unexpected traumatic incident or unusual strain" that is caused by 

a specific event on a single day or during a single work shift. It 

does not include a physical or mental condition arising from 

emotional or mental stress. The District Court correctly decided 

that this statutory definition does not include Lueck's "adverse 

stress reaction" of June 9, 1988. 

Lueck argues that his condition actually was an lloccupational 

disease," defined in 9 39-72-102, MCA (1987)' as "harm, damage or 

death as set forth in 39-71-119(1) arising out of or contracted in 
the course and scope of employment and caused by events occurring 

on more than a single day or work shift." Although the statute 

goes on to exclude conditions arising from emotional or mental 

stress, Lueck argues that his condition was caused by Itphysical 

disruption of his eating and sleeping scheduleu and therefore is 

not excluded. The District Court concluded correctly, however, 

that the term "injuryv1 in the preference statute, 5 39-71-317 (2) , 

MCA, does not include occupational disease. 

Lueck contends that the District Court's reading of the 

preference statute is too narrow, and that it erred in ignoring the 

declaration of public policy in 5 39-71-105(3), MCA (1987), which 

states that "an objective of the workerst compensation system is to 

return a worker to work as soon as possible after the worker has 

suffered a work-related injury or disease." UPS argues that this 

objective does not apply to an occupational disease, for there is 

no good reason to return a worker to a job that caused his disease. 

The District Court agreed, concluding correctlythatthe preference 

statute applies only to work-related injuries. 

We review a district court's interpretation of the law only 

for correctness. Steer, Inc. v. Depvt of Revenue (1990) , 245 Mont. 

170, 803 P.2d 601. Here, we conclude that the District Court 

correctly interpreted the preference statute as excluding Lueck's 

condition, and that UPS therefore was entitled to summary judgment 

on Lueck's preference claim, as a matter of law. 

The Emotional Distress Claim 

Lueck claims that as a result of UPS'S refusal to alter his 
work schedule and as a result of his termination, he suffered 

severe emotional distress. His emotional distress was severe 

enough that he sought counselling and was on medication for several 

months. 

This Court has adopted the requirements for recovering damages 

for infliction of emotional distress that are set out in 

Restatement (Second) of Torts 5 46 comment j (1965). First Bank 

(N.A.)-Billings v. Clark (1989), 236 Mont. 195, 206, 771 P.2d 84, 

91. The victim must show that the defendant's tortious conduct 

resulted either in physical or mental injury or in "a substantial 

invasion of a legally protected interest," and that it "caused a 

significant impact,t* including emotional distress "so severe that 

no reasonable person could be expected to endure it." Clark, 771 

P.2d at 91. Accord, Doohan v. Bigfork School Dist. No. 38 (1991), 

247 Mont. 125, 805 P.2d 1354. 

The District Court concluded that UPS'S actions did not 

approach the level of outrageousness needed to establish a prima 

facie case of intentional infliction of emotional distress. See 

Frigon v. Morrison-Maierle, Inc. (1988), 233 Mont. 113, 123, 760 

P.2d 57, 64 (the defendant's conduct must be "so outrageous . . . 

as to go beyond all possible bounds of decencyt1). 

In the past we have characterized emotional distress as an 

element of damages rather than a distinct cause of action; see 

Friqon, 760 P.2d at 63; Shiplet v. First Security Bank (1988), 234 

Mont. 166, 171, 762 P.2d 242, 247. Even if considered only for the 

purpose of establishing damages, however, Lueckts deposition 
testimony demonstrates~the absence of any genuine issue of material 

fact concerning the severity of his alleged emotional distress. 

UPS was entitled to summary judgment on this claim. 

AFFIRMED. 

We concur: 1/ 

Justices 

Justice William E. Hunt, Sr., dissenting. 

I dissent. 
April 13, 1993 

CERTIFICATE OF SERVICE 

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

following named: 

Michael G. Eiselein 

LYNAUGH, FITZGERALD, EISELEIN & EAKIN 

P.O. Box 1729 

Billings, MT 59103-1729 

STEVEN LEHMAN 

CHRIS MANGEN, JR. 

Crowley, Haughey, Hanson, Toole & Dietrich 

P.O. Box 2529 

Billings, MT 59103-2529 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA