### 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. s8



### 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, 1993Justice 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 froman 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, Lueckwas given anew route in February 1988, fromGlendive toWolf Point on a regular schedule. Another driver, who bad more seniority than Lueck, bid for and got Luecklsswing 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 Lueckgsswing 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.lrIt 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 scheduledtobegin driving at 6:45 a.m., returningat approximately 27: 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 eveningusrun. 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, describedLueck'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 familyphysician,

### 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 disruptedhis 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 1987WorkersfCompensationAct. Luecknever appealed the denial of 

### his claim. Lueck also filed a 

### claim underhis creditdisability insurance policy 

### inJuly 1988. Dr. 

### Harkness completed the required attending physician's statement on July 20, 1988,

### describing Luecklscurrent 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 occasionallyplayed guitarwith a

### band onweekend nights during the spring 

### of 1988, 

### until he 

### became ill inJune. InOctober 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

### henever 

### receivedanybenefits because hehad begunworking 

### in thebandbefore the

### payments began, In

### connection with Lueck's 

### Teamsters Union claim, Dr. 

### Harkness completed a physiciangsstatement indicating that October 11, 

### 1988, was the ?'datepatient 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. 

### JoeKriskovich, 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. Harknesshad said thathe 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 attendingphysicianonJuly 20, 1988, indicatingthat Lueck Itcannot do that type of shift switch work again,Igto 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 towork 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 amailgram and 

### a telegram from theUPS divisionmanager 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 communicatewith UPS or return to work, and on December 13 thedivisionmanager sent him an official separation letter terminating his UPS employment. Asked duringhis depositionwhyhe ignored thesemessages 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 andpersist in callingmeback 

### to shiftworkwithout 

### 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 hiswork schedule in May 1988. 

### In 1991 Lueck amended his complaint by adding 

### a 

### new cause of action under § 39-71-317 (2)

### ,MCA, alleging thatUPS had failed to give him preference for aposition thatbecamevacant 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 Luecktsclaims 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 

### fromwhich a jury could infer 

### that he was discharged for filing a workerstcompensation 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 questionand is not appropriate for summary judgment. In Linsle, however, the Supreme Court did not decide 

### whether summary judgment

### was appropriate 

### in

### aretaliatorydischargeaction. Instead, it held that the appellant's retaliatory discharge remedy under the Illinois Workers' compensationAct 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 fo11ows: [I]f the resolutionof a state-lawclaimdependsupon 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 (directedverdict 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 collectivebargaining agreement betweenhisunion 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 acollective 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 "mustattempt use of the contract grievance procedure agreed upon by employer and union as themode 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 iswholly, 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 settlingthegrievance overhis 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 theirappointment. Concluding that relying on the union was "fruitless," Lueck did not attempt to contact the 8union or enlist its support after he was discharged in December 1988. Clearly, he did not attempt to use the grievance procedure in the collectivebargaining 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 "thereis no genuine issue as to any factdeemed 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 themovant hasmet thisburden, the party opposing themotion must show "by present factsof a substantial nature that amaterial 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 

### (citationsomitted);

### seealso 

### First SecurityBank of 

### Bozeman v. Jones (1990), 243 

### Mont. 301, 303, 794 

### P.2d 679, 681, and 

### Kenyonv. StillwaterCounty (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 workers1compensation claim in July. Lueckmust 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. 

### (9thCir. 1985), 772 F.2d 

### 1453, 1459. Lueck implies 

### thatbecause UPS knewof 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 forunion benefits, which indicateathatLueckwasable to

### work, orwhy UPS'S 

### failure

### to give 

### the earlier statement greater weight 

### is evidence that he 

### was fired 

### in retaliation 

### for filing 

### a workers1compensation claim. We hold that the District Court concluded correctlythat 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 givenapreference overother applicants fora 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 Workers1CompensationAct, and (2) ifhe had been injured,hewould 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 incidentorunusual strain" that is causedby

a specificevent on a singleday or during a singlework 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 thathis condition actuallywas 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 

### inthe 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 "anobjectiveof theworkerstcompensationsystem 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 returnaworker to a job that causedhis disease. The DistrictCourt agreed,concludingcorrectlythatthepreference 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 thereforewas 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 enoughthathe sought counsellingandwas onmedication for several months. ThisCourthasadopted therequirements for recoveringdamages for infliction of emotional distress that are set out in Restatement (Second) of Torts 5 

### 46 comment j (1965). First Bank

(N.A.)-Billingsv. 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, Doohanv. 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 (thedefendant'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;Shipletv. 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 depositiontestimony demonstrates~the absence of any genuine issue ofmaterial 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 CERTIFICATEOFSERVICE Iherebycertifythatthefollowingorderwas sentby United Statesmail,prepaid, to the followingnamed:

MichaelG.Eiselein LYNAUGH,FITZGERALD,EISELEIN&EAKIN P.O. Box 1729 Billings,MT 59103-1729

STEVENLEHMAN CHRISMANGEN,

### JR. Crowley,Haughey,Hanson,Toole&Dietrich P.O. Box2529 Billings,MT59103-2529 EDSMITH CLERKOFTHESUPREMECOURT STATEOFMONTANA