No. 86-94 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

PAM DRINKWALTER, 

Plaintiff and Appellant, 

-vsSHIPTON SUPPLY COMPANY, INC., 

a Montana Corporation, d/b/a 

SHIPTON'S BIG R, and GREG CARROLL, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable William J. Speare, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Kinnard & Woodward; Dave Kinnard argued, Billings, 

Montana 

For Respondent : 

Moulton, Bellingham, Longo & Mather; W. Anderson 

Forsythe argued for G. Carroll, Billings, Montana 

For Amicus Curiae: 

Janice Frankino Doggett argued for Human Rights 

Commission, Helena, Montana 

FE~ 2 3 1987 Filed: 

Submitted: December 2, 1986 

Decided: February 23, 1987 

Clerk 
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of 

the Court. 

The District Court of the Thirteenth Judicial District, 

County of Yellowstone, granted summary judgment January 27, 

1986, in favor of defendants, Shipton Supply Company and Greg 

Carroll. The judgment was premised on plaintiff, Pam 

Drinkwalter's failure to obtain a right-to-sue letter from 

the Human Rights Commission prior to filing a civil suit 

alleging sexual harassment. Pam Drinkwalter appeals. 

Pam Drinkwalter was employed by Shipton Supply Company 

from October of 1980 through July of 1983. Greg Carroll, a 

son of the president of Shipton Supply Company, was 

Drinkwalter's supervisor. In early July of 1983, Drinkwalter 

told Carroll's brother, also a supervisor for Shipton Supply, 

that she was perturbed by sexual comments and actions 

directed by Greg Carroll to herself and other individuals. 

She further stated that if the behavior continued, she would 

quit her job. The behavior ceased; however, Drinkwalter 

still terminated her employment with Shipton Supply in 

mid-July . Drinkwalter subsequently filed a claim with the State of 

Montana, Department of Labor and Industry, for unemployment 

compensation benefits. Drinkwalter alleged that Greg 

Carroll's crude behavior established sufficient cause to 

leave her employment. Carroll adamantly disagreed, 

contending Drinkwalter quit work because her request not to 

work weekends was denied. The Department of Labor and 

Industry found in favor of Drinkwalter and granted 

unemployment compensation benefits. 

Thereafter, Drinkwalter contacted new counsel for the 

purpose of pursuing a civil suit. 

The complaint in this action was filed fifteen months 

after Drinkwalter left her job, October 9, 1984. It is a 
multiple-count complaint. Count one alleges acts which 

constitute sexual harassment. Count two alleges that the 

acts constituted a breach by defendants of the covenant of 

good faith and fair dealing in an employment relationship. 

Count three contends that Shipton Supply Company is liable 

under a negligence theory for failure to properly 

investigate, correct and prevent Greg Carroll's behavior. 

Finally, count four alleges that Greg Carroll's behavior 

constituted a tortious interference with the contract of 

employment between Drinkwalter and Shipton Supply. 

In their answer, defendants deny most of the allegations 

in the complaint and present the court with several 

affirmative defenses. 

The parties thereafter prepared to try the case. On 

October 17, 19 85, defendants moved for summary judgment, 

alleging in pertinent part: 

1. Plaintiff's Complaint states a cause of action 

cognizable under Montana's Human Rights Act, which 

Act requires a "right to sue" letter be issued by 

the Human Rights Commission before suit in district 

court may be brought. No such right to sue letter 

was ever issued in this matter. 

2. Plaintiff's Complaint fails to state a cause of 

action cognizable under Montana law separate and 

apart from specific rights and remedies provided in 

Montana's Human Rights Act. 

Following extensive briefing and a hearing on the 

matter, the trial judge granted defendants' motion for 

summary judgment. In his memorandum and order, the trial 

judge found that each of the counts in Drinkwalter's 

complaint was premised on allegations of sexual harassment 

and that the sexual harassment was of the type contemplated 

by the Montana Human Rights Act. He then determined that the 

Montana Human Rights Act provided the exclusive remedy by 

which the alleged wrongs could be remedied. Drinkwalter's 
complaint was "dismissed without prejudice with the 

understanding that Plaintiff may refile her Complaint within 

90 days of obtaining a so-called 'Right to Sue' letter from 

the Montana Human Rights Commission." 

Three issues are raised on appeal: 

1. Do the provisions of the Montana Human Rights Act 

provide the exclusive remedy for claims of sexual harassment 

in Montana? 

2. Do 5s 49-2-501(2) and 49-2-509(2), MCA, prescribe a 

constitutionally valid 180 day statute of limitations for all 

claims of sexual harassment in Montana? 

3. Did the District Court err in granting defendants' 

motion for summary judgment -- in toto? 

There appears to be no disagreement among the parties 

that the actions of Greg Carroll complained of by Pam 

Drinkwalter, if true, constitute sexual harassment. The 

controversy arises with respect to the appropriate remedy for 

the harassment. Defendants contend the Montana Human Rights 

Act provides the sole and exclusive remedy in sexual 

harassment suits. We disagree. 

Section 49-2-303(1)(a), MCA, of the Montana Human Rights 

~ct, provides: 

Discrimination in employment. (1 It is an 

unlawful discriminatory practice for: 

(a) an employer to refuse employment to a person, 

to bar him from employment, or to discriminate 

against him in compensation or in a term, 

condition, or privilege of employment because of 

his race, creed, religion, color, or national 

origin or because of his age, physical or mental 

handicap, marital status, or sex when the 

reasonable demands of the position do not require 

an age, physical or mental handicap, marital 

status, or sex distinction. 
Our act is very similar to the Federal Anti-Sex 

Discrimination statutes. The federal act provides at 42 

U.S.C. S 2000e-2(a) (2) that: 

It shall be an unlawful employment practice for an 

employer- 

(2) to limit, segregate, or classify his employees 

or applicants for employment in any way which would 

deprive or tend to deprive any individual of 

employment opportunities or otherwise adversely 

affect his status as an employee, because of such 

individual's race, color, religion, sex, or 

national origin. 

Federal courts have interpreted the term "sexual 

discrimination" as found in 42 U.S.C. S 2000e-2 (a) (2) to 

encompass sexual harassment. See Barnes v. Costle (D.C. Cir. 

1977), 561 F.2d 983 and Bundy v. Jackson (D.C. ~ir. 1981), 

641 F.2d 934. We view this as a broad interpretation of the 

term "sex discrimination," explained, perhaps, by the 

absence of federal common law. Traditional remedies for 

sexual harassment are rooted in common law. Since there is 

no federal common law remedy for sexual harassment, it is 

defined and treated as sexual discrimination. 

Such is not the situation in Montana. Our 1972 

Constitution provides in article 11, that: 

The dignity of the human being is inviolable. No 

person shall be denied the equal protection of the 

laws. Neither the state nor any person, firm, 

corporation, or institution shall discriminate 

against any person in the exercise of his civil or 

political rights on account of race, color, sex, 

culture, social origin or condition, or political 

or religious ideas. 

In addition, there are several common law causes of action 

under which sexual harassment in the work place may be 

prosecuted. This Court has recognized a cause of action for 

a discharge from employment which violates public policy. 
Dare v. Montana Petroleum Marketing Co. (Mont. 1984), 687 

P.2d 1015, 41 St.Rep. 1735; Nye v. Department of Livestock 

(1982), 196 Mont. 222, 639 P.2d 498. Sexual harassment is 

against public policy. Holien v. Sears, Roebuck and Co. (Or. 

1984), 689 P.2d 1292; Chamberlin v. 101 Realty, Inc. (D.N.H. 

1985), 626 F.Supp. 865. It also violates public policy 

embodied in Montana' s Constitution and various 

anti-discrimination statutes. See 55 49-1-101 and -102, MCA. 

Montana law also recognizes a cause of action for breach 

of an employment contract's implied covenant of good faith 

and fair dealing. Crenshaw v. Bozeman Deaconess Hospital. 

(Mont. 1984), 693 P.2d 487, 41 St.Rep. 2251; Gates v. Life of 

Montana Insurance Co. (1982) , 196 Mont. 178, 638 P. 2d 1063. 

Good faith and fair dealing preclude sexual harassment. 

Although the final determination rests with the fact finder, 

sexual harassment, as alleged by Pam Drinkwalter, can result 

in breach of the implied covenant of good faith and fair 

dealing. 

In her complaint, Pam Drinkwalter also alleges tortious 

interference with her employment contract and negligent 

employee supervision by Shipton Supply. We need not 

determine the merits of these charges at this time. It is 

sufficient for us to hold only that the facts alleged by Pam 

Drinkwalter could support common law theories rooted in tort 

law distinct from and in addition to sexual discrimination 

charges covered by Montana's Human Rights Act. To hold 

otherwise would result in the elimination of established 

common law causes of action. Absent a clear indication of 

the legislature's intent to abrogate existing common law 

remedies, we must construe new statutory remedies as existing 

in addition to, rather than instead of, the common law 

remedies. 
As a general rule, if a statute which provides for 

a new remedy shows no intention to negate, either 

expressly or by necessary implication, a 

pre-existing common law remedy, the new remedy will 

be regarded as merely cumulative, rather than 

exclusive, with the result that a plaintiff may 

resort to either the pre-existing remedy or the new 

remedy. (Citations omitted.) 

Brown v. Transcon Lines (Or. 1978), 588 ~.2d 1087 at 1093. 

Further, claimants would be forced to pursue 

administrative remedies for wrongs traditionally righted 

within the judicial system. The courthouse would be closed 

to individuals against whom a tort had been committed, thus 

contravening our constitutional right of access to the courts 

found in art. 11, S 16 of the 1972 Montana Constitution. Our 

citizens' right to a trial by jury under art. IS, S 26 of the 

1972 Montana Constitution, would be abridged as well. 

If we were to decide the Human Rights Act provides the 

sole and exclusive remedy for all claims arising out of 

sexual harassment, we would also be imposing the 180 day 

statute of limitation found in S 49-2-501(2), MCA, on every 

possible remedy. Under our decision in No11 v. City of 

Bozeman (1975) , 166 Mont. 504, 534 P. 2d 880, such a short 

period of limitation would be invalid. We are to strive, if 

at all possible, to construe a statute in a constitutional 

manner. All doubts with respect to statutory interpretation 

must be resolved in favor of constitutional validity. Noll, 

166 Mont. at 507, 534 P.2d a.t 881. We therefore find the 

imposition of the 180 day statute of limitations to be 

further proof of the legislature's intent that the Human 

Rights Act not be the sole remedy for acts which also give 

rise to a cause of action independent of the statute. 

If Montana common law failed to provide a remedy for the 

tort of sexual harassment, we would not hesitate to include 

sexual harassment as a form of sex discrimination covered by 
the Human Rights Act. However, because there are other 

remedies available to sexual harassment victims, we see no 

reason to construe the Human Rights Act so broadly. Instead, 

we adopt a more narrow construction of the Act and find that 

it does not provide the sole and exclusive remedy for sexual 

harassment. 

The trial court's order granting Shipton's motion for 

summary judgment and requiring that Pam Drinkwalter obtain a 

right-to-sue letter is reversed. We remand for further 

proceedings. 

We concur: 

Justices 
Mr. Justice L. C. Gulbrandson, dissenting. 

1 respectfully dissent. I dissent specifically from 

those parts of the majority decision which, (1) reverse the 

grant of summary judgment as to count I which alleges sexual 

harassment, and (2) appear to hold that if the Human Rights 

Act were the exclusive remedy for sexual harassment on the 

job, then the Act's 180 day statute of limitation would be 

unconstitutional. I express no opinion as to the majority's 

reversal of summary judgment as to counts 11, 111, & IV of 

the complaint. 

Count I of the complaint accuses the defendant of 

severely sexually harassing the plaintiff. The District 

Court correctly granted summary judgment to the defendant as 

to this count because the plaintiff failed to comply with the 

provisions of Montana's Human Rights Act. The Act provides 

the remedy in Montana for sexual discrimination in the 

workplace. 

The majority is unclear as to whether sexual harassment 

is sexual discrimination under the Act. At one point, the 

majority states: 

If Montana common law failed to provide a 

remedy for the tort of sexual harassment, 

we would not hesitate to include sexual 

harassment as a form of sex 

discrimination covered by the Human 

Rights Act. However, because there are 

other remedies available to sexual 

harassment victims, we see no reason to 

construe the Human Rights Act so broadly. 

This passage clearly seems to say that sexual harassment is 

not sexual discrimination under the Act. However the very 

next sentence in the majority opinion states, 

Instead, we adopt a more narrow 

construction of the Act and find that it 
does not provide the sole and exclusive 

remedy for sexual harassment. 

This sentence clearly seems to say that sexual harassment - can 

be sexual discrimination under the Act. 

The best view is that sexual harassment can be, and in 

this case is, sexual discrimination under the Act. Here, 

plaintiff's supervisor allegedly discriminated against her on 

the basis of sex by sexually harassing her (comments, 

gestures, comparisons and touching) when he would not have 

done so to a male employee. As pointed out by the majority, 

federal courts hold that sexual harassment is sexual 

discrimination. "The Montana Human Rights Act, Title 49, MCA, 

is closely modeled after Title VII [of the Federal Civil 

Rights Act of 1964, 42 U.S.C. section 2000e et seq.], and 

reference to pertinent federal case law is both useful and 

appropriate." Snell v. Montana Dakota Utilities Co. (19821, 

198 Mont. 56, 62, 643 P.2d 841, 844. Both common sense and 

federal precedents require a holding that sexual harassment 

is sexual discrimination. 

Given that sexual harassment is sexual discrimination 

under the Act, the exclusive remedy for that harassment 

(count I of the complaint) is provided by the Act. There is 

no common law remedy for sexual harassment, in and of itself, 

in Montana. The majority cites no case law establishing such 

a remedy. 

The remedy in Montana for sexual harassment, in and of 

itself (as alleged in count I), is statutory under the Human 

Rights Act. Section 49-2-506, MCA, gives the Human Rights 

Commission broad powers to provide relief for discrimination. 

The Commission may "require any reasonable measure to correct 

the discriminatory practice and to rectify any harm. 

pecuniary or otherwise, to the person discriminated 

against . . . " The Act requires a person complaining of 
discrimination to first file a complaint with the Commission. 

Under $ 49-2-509, MCA, the Commission can issue a letter 

entitling the complainant to proceed in district court if 

certain prerequisites are met. This is the "right to sue" 

letter. 

In Walker v. Anaconda Co. (D.Ct.Mont. 1981), 520 

F.Supp. 1143, upheld on appeal without opinion, 698 F. 2d 

1228, Judge Russell Smith addressed the exclusive nature of 

the remedy provided by the Act. The Walker court dismissed 

an age discrimination in employment action because the 

plaintiff failed to proceed under the Act. The court stated: 

There is no Montana case law on the 

subject, but an old rule, and one of 

almost universal application, is that 

where "a statute creates a right and 

prescribes a remedy, the statutory remedy 

is exclusive. (Citations omitted.) 

Walker, 520 F.Supp at 1144. The court explained, 

The general rule [cited immediately 

above] should be applied here because all 

of the indications are that the 

legislature intended the remedies 

provided by it to be exclusive, and there 

are no indications to the contrary . . . It is clear that the purpose of the 

act was to eliminate discrimination in 

multiple respects. To accomplish this, 

the legislature did not authorize private 

suits. 

Walker, 520 F.Supp at 1144. A New Mexico court also held, 

relying on Walker, that compliance with the grievance 

procedure in the New Mexico Human Rights Act was a 

prerequisite to suit under the Act. See, Jaramillo v. J.C. 

penny Co., Inc. (N.M.App. 1985), 694 P.2d 528. In my 

opinion, the Walker decision states the correct rule. 

One final point made in Walker calls for elaboration. 

The legislative history of the Act indicates that the 
legislature intended the remedy under the Act to be 

exclusive. There is no indication that the legislature 

intended that a plaintiff could bypass the Act and file a 

discrimination complaint directly in district court. 

The majority appears to hold that if the Human Rights 

Act were the exclusive remedy for sexual harassment in 

employment, then the Act's 180 day statute of limitations 

would be invalid. The majority states that under Noll v. 

City of Bozeman (1975), 166 Mont. 504, 534 P.2d 880, such a 

short period of limitation is invalid. The majority's 

reliance appears to be misplaced. In Noll, the court 

addressed a statutory provision which prohibited allowing any 

claim against a governmental entity unless the claim had been 

presented and filed with the Secretary of State within 120 

days. This Court found that the provision violated a state 

constitutional provision abolishing the concept of sovereign 

immunity. The No11 holding was not predicated upon the 

length of the 120 day limit. The basis of the holding was 

that there was already a statute of limitations for the type 

of suit involved and the challenged provision created an 

additional condition precedent (filing with the Secretary - of 

State within 120 days) . The decision is not predicated upon 

the length of the period. Indeed, the No11 court 

specifically conceded that statutes of limitations are within 

the power of the legislature to enact. The challenged 

statute in No11 was struck down for imposing a prerequisite 

in addition to the statute of limitations. 

In Eagle Communications v. Treas. of Flathead Cty. 

(Mont. 1984), 685 P.2d 912, 917, 41 St.Rep. 1303, 1309, this 

Court stated the rule which controls this issue, i.e., 

"The rule is well settled in this country 

that whenever a statute grants a right 

which did not exist at common law, and 

prescribes the time within which the 
right must be exercised, the limitation 

thus imposed does not affect the remedy 

merely, but is of the essence of the 

right itself, and one who seeks to 

enforce such right must show 

affirmatively that he has brought his 

action within the time fixed by the 

statute; and if he fails in this regard, 

he fails to disclose any right to relief 

under the statute." (Citation omitted.) 

Tn my opinion, the stated 180 

1