DA 16-0050

IN THE SUPREME COURT OF THE STATE OF MONTANA

2016 MT 267

MISSOULA ELECTRIC COOPERATIVE,

 Petitioner and Appellant,

 v.

JON CRUSON, INC.,

 Respondent and Appellee.

APPEAL FROM: District Court of the Fourth Judicial District,

In and For the County of Missoula, Cause No. DV-15-407

Honorable John W. Larson, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

David B. Cotner, Anna C. Conley, Contract Attorney, Datsopoulos, 

MacDonald & Lind P.C., Missoula, Montana

Edward “Rusty” Murphy, Murphy Law Offices, PLLC, Missoula, 

Montana

For Appellee:

David C. Berkoff, Berkoff Law Firm, P.C., Missoula, Montana 

Nate McConnell, McConnell Law Office, P.C., Missoula, Montana 

Submitted on Briefs: September 14, 2016

 Decided: October 25, 2016

Filed:

__________________________________________

Clerk

10/25/2016

Case Number: DA 16-0050
2

Justice Jim Rice delivered the Opinion of the Court. 

¶1 Missoula Electric Cooperative (MEC) appeals the order of the Fourth Judicial 

District Court, Missoula County, affirming the Human Rights Commission’s 

(Commission) decision to reverse its Hearing Examiner’s grant of summary judgment to 

MEC on the age discrimination claim filed by Appellee Jon G. Cruson. We restate the 

issue as follows:

¶2 Did the Human Rights Commission err by determining that the Hearing Examiner 

improperly granted summary judgment to MEC?

¶3 We affirm the Commission’s decision and remand this matter to the Hearing 

Examiner for further proceedings. The facts cited below are drawn from the record as it 

exists for summary judgment purposes.

FACTUAL AND PROCEDURAL BACKGROUND

¶4 In 2011, MEC and the International Brotherhood of Electrical Workers Local 

Union 44 (Union), as authorized by their collective bargaining agreement (CBA), entered 

into an Apprenticeship Standards for Electrical Lineman Agreement (Agreement), which 

was in full force and effect at all times relevant to this litigation. The Agreement 

governed the selection and training of apprentice linemen, and the administration of the 

apprenticeship program, for the Union, MEC, and MEC’s employees. The Agreement 

created the Joint Apprentice Training Committee (JATC), which is the entity responsible 

for selecting and training apprentice linemen. As provided in the Agreement and CBA, 

the JATC is composed of four people, two selected by MEC and two selected by the 

Union.
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¶5 The JATC, as established by MEC and the Union, is responsible for screening, 

recommending, and training apprentice linemen. Prospective linemen for each 

apprenticeship are interviewed by the JATC, which recommends a candidate for MEC’s 

approval. Approved candidates then receive training by the JATC. If a candidate is not 

approved by MEC, then the JATC begins the process again to select and present another 

candidate. The Agreement and the CBA grant to the JATC duties in the process of 

selecting and training linemen that are to be exercised independently from the Union and 

MEC.1 

¶6 Cruson was employed by MEC as a Master Electrician from 2001 until 2013. In 

2012, MEC created a new apprentice lineman position. Cruson applied for this position 

and was interviewed by the JATC, along with other applicants. At the time, all of the 

JATC members were supervisory or managerial level MEC employees, including: 1) an 

Area Foreman; 2) the Operations Manager; 3) the Manager of Engineering; and 4) a 

Crew Foreman. Cindy Woods, an employee of MEC, also attended and participated in 

the interviews. An agency investigative report described Woods as the “payroll/benefits 

administrator” for MEC, and Mark Hayden, MEC’s General Manager, described Woods, 

in his deposition, as “the HR person for MEC.” Upon completion of its interview 

 

1 The Agreement provided that the JATC would “[e]nsure that the employer provides the 

Apprentices with reasonably continuous employment and training during the term of the 

Apprenticeship, including diversified training in all major work experience of the trade.” It 

provided that JATC would “[e]nsure that [the] Apprenticeship standards are kept up-to-date and 

that the Standards meet the requirements of the trade at all times and to supervise the 

enforcement of all provisions of the standards. The employer may modify these standards at any 

time by the recommendation of [the JATC].” Lastly, it also provided that “[t]he JATC will have 

full authority to supervise the enforcement of these Standards. Its decision will be final and 

binding on the employer, the sponsor, and the apprentice. . . .” (Emphasis added.)
4

process, the JATC selected another individual as its first choice for the apprenticeship 

and made this recommendation to MEC, while Cruson and two other employees, of 

similar age, were ranked in a three-way tie for second place. MEC did not approve the 

candidate recommended by the JATC, and no one was initially hired for the position. 

¶7 Cruson inquired and was informed by Hayden that there were no qualified 

candidates for the position. Cruson, along with the two other employees, in the threeway tie, lodged a grievance with the Union, asserting age discrimination in the hiring 

process. The discrimination claims were based on statements allegedly made by 

members of the JATC expressing negative views about hiring older candidates. One 

member remarked that an older candidate’s application “was a waste of [his] time,” and 

that the older candidate “should have applied for [the position] years ago when [he] was 

younger.” A second member said he “would never hire an apprentice lineman who was 

older” because he would not get his “money’s worth out of [the apprentice] for all that 

training,” or other words to that effect. The Union did not pursue a grievance over the 

matter, and Cruson and the other two candidates filed complaints against MEC with the 

Montana Human Rights Bureau, alleging age discrimination. 

¶8 A Human Rights Bureau Investigator issued “reasonable cause findings” in favor 

of Cruson and Greg Flesch, one of the other older candidates. After the findings were 

issued, MEC ordered the JATC to reconvene and recommend either Cruson or Flesch for 

the apprenticeship position. The JATC selected Cruson and MEC offered him the 

position. However, Cruson declined the offer, claiming MEC’s management had stated 
5

he would not be supported by management or the other linemen, and instead elected to 

continue to pursue his age discrimination complaint, naming only MEC.

¶9 In the proceeding, MEC moved for summary judgment on the claim, arguing that 

the JATC, whose members’ statements formed the basis of Cruson’s claim, was not an 

agent of MEC, but a separate and independent entity over which it had no control. The 

Hearing Examiner granted MEC’s motion, noting the JATC acted independently of MEC 

and “[t]here is no material and substantial evidence that [the] JATC was an agent of 

MEC[]. Cruson did not make any claims against [the] JATC. As a matter of law, Cruson 

cannot prove a case against MEC. His complaint must be dismissed in its entirety.” 

¶10 Cruson appealed to the Commission, which overturned its Hearing Examiner’s 

decision, concluding the “facts presented by the hearings officer in the Order do not 

support the legal conclusion that there is no agency relationship between [MEC] and the 

[JATC].” The Commission’s order remanded the matter to the Hearing Examiner for 

further proceedings. 

¶11 MEC appealed to the District Court, which held the Commission properly reversed 

the Hearing Examiner’s decision because Cruson had presented evidence creating a 

genuine issue of material fact about whether the JATC was acting as an agent of MEC. 

¶12 MEC appeals.

STANDARDS OF REVIEW

¶13 An agency’s conclusions of law are reviewed to determine if they are correct. 

This same standard of review is applicable to both the district court’s review of the 
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administrative decision and our subsequent review of the district court’s decision. 

Pennaco Energy, Inc. v. Mont. Bd. of Envtl. Review, 2008 MT 425, ¶ 18, 347 Mont. 415, 

199 P.3d 191 (citing Indian Health Bd. v. Mont. Dep’t of Labor, 2008 MT 48, ¶ 11, 341 

Mont. 411, 177 P.3d 1029).

¶14 The standard of review for agency decisions under the Montana Administrative 

Procedures Act, in relevant part, states: “The court may not substitute its judgment for 

that of the agency as to the weight of the evidence on questions of fact. The court may 

affirm the decision of the agency or remand the case for further proceedings. . . .” 

Section 2-4-704(2), MCA; Hofer v. Mont. Dep’t of Pub. Health and Human Servs., 2005 

MT 302, ¶ 12, 329 Mont. 368, 124 P.3d 1098. 

¶15 Here, we examine the Commission’s reversal of the Hearing Examiner’s granting 

of summary judgment. We consider summary judgment pursuant to M. R. Civ. P. 56, 

and review the Commission’s final agency decision de novo. Summary judgment is an 

extreme remedy that should be granted only when there is no genuine issue of material 

fact and the moving party is entitled to judgment as a matter of law. Hajenga v. Schwein, 

2007 MT 80, ¶ 11, 336 Mont. 507, 155 P.3d 1241 (citing Lee v. USAA Cas. Ins. Co., 

2001 MT 59, ¶ 25, 304 Mont. 356, 22 P.3d 631). Under Rule 56, an agency should 

render a judgment “if the pleadings, the discovery and disclosure materials on file, and 

any affidavits show that there is no genuine issue as to any material fact and the movant 

is entitled to judgment as a matter of law.” M. R. Civ. P. 56(c)(3); Roe v. City of 

Missoula, 2009 MT 417, ¶ 14, 354 Mont. 1, 221 P.3d 1200 (citing Corporate Air v. 
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Edwards Jet Ctr., 2008 MT 283, ¶ 24, 345 Mont. 336, 190 P.3d 1111). The party moving 

for summary judgment has the initial burden of establishing both the absence of genuine 

issues of material fact and entitlement to judgment as a matter of law. Roe, ¶ 14 (citing 

Corporate Air, ¶ 25). If the moving party meets this burden, then the burden shifts to the 

nonmoving party to establish that a genuine issue of material fact does exist. Roe, ¶ 14 

(citing Corporate Air, ¶ 25). 

DISCUSSION

¶16 Did the Commission err by determining that the Hearing Examiner improperly 

granted summary judgment to MEC?

¶17 MEC argues that MEC and the JATC operate independently of each other and 

there is no agency relationship between the two. MEC argues the lack of evidence to the 

contrary requires a determination that summary judgment on the claim was properly 

entered. Cruson answers that an agency relationship exists because MEC conferred 

authority to the JATC to conduct candidate selection and training for the benefit of MEC 

and, further, MEC exerted actual control over the JATC. Cruson argues his age 

discrimination complaint is properly filed against MEC because it is the principal in an 

agency relationship with the JATC. 

¶18 During the Commission hearing, Commissioner Sheri Sprigg listed several facts 

that could support an agency relationship between MEC and the JATC, including: 1) the 

JATC was created by MEC; 2) the JATC had no purpose other than to review 

applications for MEC; 3) all JATC members were MEC employees; 4) the JATC had no 

assets or staff of its own; 5) MEC’s human resource person participated in meetings of 
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the JATC; 6) the JATC was known by MEC employees as “the hiring committee”; and 

7) MEC reconvened the JATC to conduct a follow-up selection meeting. 

¶19 Apprenticeship agreements are the product of statute and are generally governed 

by Title 39, chapter 6, MCA. Apprenticeship agreements are “a written agreement 

between an employer or an association of employers and an organization of employees 

describing conditions of employment for apprentices.” Section 39-6-105(1)(b), MCA. 

The Agreement in this case was entered between MEC and the Union. It authorized the 

creation of a joint apprenticeship training committee and outlined the general powers and 

duties of the JATC:

The Joint Apprenticeship and Training Committee established under these 

Standards shall be the sole administrative body for the apprenticeship and 

training program outlined in these Standards. The Committee shall have 

full authority and responsibility to install, regulate, supervise, control and 

operate the apprenticeship program and shall have complete authority to 

establish and enforce rules and requirements governing the qualifications, 

education, training, selection, and supervision of apprentices.

¶20 Many of the factual assertions offered by Cruson as indicative of an agency 

relationship are nothing more than inherent characteristics of the typical structure and 

organization of a joint apprenticeship committee, as the Hearing Examiner correctly 

reasoned. While MEC had a hand in “creating” the JATC at issue here, MEC’s 

involvement was not unilateral. The JATC was created only after joint action by MEC in 

cooperation with the Union, pursuant to the CBA. The fact that the JATC was referred to 

as “the hiring committee” or as the “MEC JATC” is mere nomenclature or slang and 

provides no material evidence of an agency relationship. The assertion that the JATC 
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“worked for” MEC or had no other purpose than to screen applicants for MEC 

contradicts the Agreement and the CBA, which clearly demonstrate the JATC was 

designed to serve MEC, the Union, and employees seeking to advance their careers by 

entering the apprenticeship program. Indeed, as noted by the Hearing Examiner, under 

the governing agreements, MEC did not have control over which candidates would be 

recommended for apprenticeship positions. That all members of the JATC were 

employees of MEC and that they all held supervisory positions are, likewise, functions of 

the governing agreements: the JATC provides services for employees of MEC, and the 

people serving on the JATC are selected by MEC’s management and the Union. If 

Cruson did not like who was selected by the Union to serve on the JATC, he should have 

taken that up with the Union. 

¶21 However, there are several factual assertions which, when taken together, could 

demonstrate that, despite the governing agreements, MEC was exercising influence over 

the JATC in a way indicative of an agency relationship that would preclude summary 

judgment on the issue. First, Woods, a human resources representative of MEC, 

participated in the interviews and the applicant scoring process. Although Woods’ 

scoring of the applicants apparently was not included in the JATC’s final totals, her 

presence and participation signified an enhanced influence over the process by MEC not 

contemplated by the governing agreements. Because of a doctor’s appointment, Woods 

did not also participate in the JATC’s final selection meeting, about which Hayden stated 

in his deposition that “[Woods] had a doctor’s appointment, couldn’t attend, but I wanted 
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to get [the selection] meeting in before [Labor Day Weekend].” Hayden’s statement 

itself provides an indication that MEC was exercising influence over at least the timing of 

the JATC’s selection process.

¶22 Second, after the “reasonable cause findings” were issued by the Human Rights 

Bureau Investigator, MEC ordered the JATC to reconvene and select either Cruson or 

Flesch for the open apprenticeship. Flesch testified, in his deposition, that normally when 

the JATC’s recommended apprentice candidate was not approved, then the position was 

reopened and the process began anew. However, here MEC ordered the JATC to choose 

either Cruson or Flesch, two of the three individuals who had tied for second place during 

the initial interview process. This conclusion is supported by the deposition testimony of 

Nick Labbe, a JATC committee member. Labbe testified the sole purpose for 

reconvening the JATC was to make a selection between Cruson and Flesch, and no other 

candidates were considered. Finally, the record indicates that it had been made known to 

the JATC that Cruson was MEC’s preferred candidate, influencing his ultimate selection 

by the JATC. 

¶23 Summary judgment “is an extreme remedy that should be 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.” Hajenga, ¶ 11 (citing Lee, ¶ 25). While we take no position on the 

merits of Cruson’s claim, we agree with the Commission that for purposes of summary 

judgment, Cruson has met his burden to demonstrate issues of material fact about his 

contention that MEC was exerting control over the JATC such that the JATC was acting 
11

as MEC’s agent. Consequently, the Commission did not err in reversing the entry of 

summary judgment, and remanding this matter for further proceedings on Cruson’s 

claim.2 The District Court correctly affirmed the Commission.

¶24 Affirmed and remanded to the Hearing Examiner for further proceedings 

consistent with this opinion.

/S/ JIM RICE

We Concur: 

/S/ MIKE McGRATH

/S/ LAURIE McKINNON

/S/ JAMES JEREMIAH SHEA

/S/ PATRICIA COTTER

 

2

 MEC also offers an argument that the District Court erred by citing to an order entered by a 

District Court in a related case. We did not consider this citation in reaching our decision, and 

thus the issue is moot.