                                                                                        December 31 2009


                                       DA 07-0592

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                       2009 MT 451


ROBERT EDWARDS, DANIEL KOHM,
JOHN DOE, LOUIS GOAZIOU, DAVID
ZROWKA, and RAY ST. ONGE,

          Plaintiffs and Appellants,

     v.

CASCADE COUNTY SHERIFF’S DEPARTMENT,
DAVID CASTLE, in his individual capacity, and
CLYDE “BLUE” CORNELIUSEN, in his individual
capacity, and CASCADE COUNTY,

          Defendants and Appellees.


APPEAL FROM:        District Court of the Eighth Judicial District,
                    In and For the County of Cascade, Cause No. BDV 2004-1274
                    Honorable David G. Rice, Presiding Judge


COUNSEL OF RECORD:

            For Appellants:

                    Elizabeth A. Best (argued), Best Law Offices, P.C., Great Falls, Montana

            For Appellees Cascade County Sheriff’s Department, David Castle, and
            Clyde “Blue” Corneliusen:

                    Kevin C. Meek, Davis, Hatley, Haffeman & Tighe, P.C.,
                    Great Falls, Montana

            For Appellee Cascade County:

                    Robert J. Vermillion (argued), Smith, Walsh, Clarke & Gregoire, PLLP,
                    Great Falls, Montana

            For Amicus Curiae:

                    Karl J. Englund, Karl J. Englund, P.C., Missoula, Montana

                    Lawrence A. Anderson (argued), Lawrence A. Anderson, P.C.,
                    Great Falls, Montana
                                   Argued: October 29, 2008
                                 Submitted: December 2, 2008
                                  Decided: December 31, 2009


Filed:

         __________________________________________
                           Clerk




                             2
District Court Judge James A. Haynes delivered the Opinion of the Court.

¶1     Appellants Robert Edwards (Edwards), Daniel Kohm (Kohm), and David Zrowka

(Zrowka) are current and former sheriff’s deputies who sued their employer on

constitutional and tort theories related to political retaliation and statutory wage claims.

Appellants John Doe (Doe), Ray St. Onge (St. Onge), and Loius Goaziou (Goaziou), all

held the rank of lieutenant in Cascade County and brought similar claims against the

defendants. These individuals appeal from the decision of the Eighth Judicial District

Court which, by summary judgment, dismissed most of their claims. We affirm in part,

and reverse in part, and remand for further proceedings consistent with this Opinion.

¶2     We restate the issues as follows:

¶3     Issue One: Were Deputies Edwards, Kohm, and Zrowka required to exhaust the

Collective Bargaining Agreement grievance procedure before pursuing their political

discrimination, wage, and related claims in the District Court?

¶4     Issue Two: Does the Montana Human Rights Act constitute the “exclusive

remedy” for the claims of Edwards, Kohm, and Zrowka, as well as sheriffs’ lieutenants

Doe and St. Onge and detention lieutenant Goaziou, precluding any other constitutional,

statutory, or tort claims which are premised upon their Montana Human Rights Act

claims?

¶5     Issue Three: Were all of the Appellants deprived of their constitutional rights to a

jury trial, access to the courts, and full legal redress?

                  PROCEDURAL AND FACTUAL BACKGROUND

                                               3
¶6     Appellants’ complaints involve proceedings at the local administrative level,

before the Montana Human Rights Bureau (HRB), and in both state and federal courts. A

summary of the procedural history related to five of the Appellants’ HRB claims is set

forth in Edwards v. Cascade Co., 2009 MT 229, 351 Mont. 360, 212 P.3d 289.

¶7     At the time of the 2004 sheriff’s primary election in Cascade County, Appellants

Edwards, Kohm, and Zrowka were full-time deputy sheriffs covered by the Collective

Bargaining Agreement (CBA). Doe and St. Onge were sheriff lieutenants, and Goaziou

was a detention staff lieutenant.     These latter three positions (Doe, St. Onge, and

Goaziou) were not covered by the CBA. Doe used a fictitious name due to the nature of

his work. 1 All six Appellants actively supported the losing candidate for sheriff in the

Democratic primary election. Respondent Dave Castle (Castle) won the primary

election, defeating Sheriff Funyak. There was no Republican opponent. When Funyak

resigned as sheriff, Castle was sworn in and immediately appointed Clyde “Blue”

Corneliusen (Corneliusen) as undersheriff. The Appellants allege the undersheriff soon

expressed and undertook to carry out Castle’s retaliatory objective: “I won’t be done

with any of the Funyak supporters until they are either out of this f—ing office or in their

place.”




1
   In their Answer to the Second Amended Complaint, David Castle, Clyde “Blue” Corneliusen,
and the Cascade County Sheriff’s Department denied there was any reason for John Doe to use a
fictitious name and unilaterally disclosed his identity. “John Doe” remains in the caption.

                                             4
¶8     All of the Appellants except Deputy Edwards ultimately resigned from their

employment with Cascade County Sheriff’s Department and Cascade County

(collectively referred to as the “County”).

The Collective Bargaining Agreement.

¶9     The contracted terms of the CBA define the circumstances under which deputy

sheriffs covered by the CBA must file a written grievance. A “grievance,” as defined in

the CBA, “is limited to a complaint or request of an Employee which involves the

interpretation of, application of or compliance with the provisions of this Agreement.”

CBA, Art. 2.

¶10    The terms of the 2004-2005 CBA define “Employee” as full-time regular deputy

sheriffs represented by the Cascade County Deputy Sheriff’s Association for the purposes

of collective bargaining.       The “Association” refers to the Cascade County Deputy

Sheriff’s Association. The “Employer” is defined as the Board of Commissioners of

Cascade County and the Cascade County Sheriff.

¶11    The management rights and statutory duties of the office of the sheriff are

specifically excluded from the CBA grievance procedure. CBA, Art. 4.2 The “office of




2
   CBA, Article 4, § 2: “Inherent management rights and Montana State statutes relating to the
duties of the ‘Office of the Sheriff’ are not in anyway [sic] directly or indirectly affected by this
Agreement and are not subject to the grievance procedure.” The Court further notes the “Duties
of Sheriff’ are addressed in § 7-32-2121, MCA.

                                                 5
the sheriff” is not defined in the CBA. Promotions are specified as a management right

of the sheriff. CBA, Art. 7.3

¶12    The CBA contains a non-discrimination clause:

              It is the permanent policy of the Employer to provide equal
       opportunities for employment, retention, and advancement to all Employees
       regardless of race, color, creed, national origin, sex, age, marital status or
       political belief. [Emphasis added.]
              The Employer will not discriminate against any Employee because
       of Association membership or activity and the Association will not
       discriminate against any Employee because of lack of membership or lack
       of activity in the Association. CBA, Art. 6.

¶13    Article 16 of the CBA requires the Employer to pay wages to employees

“calculated according to applicable Montana State Law.”

¶14    To initiate a CBA grievance, a dispute must be submitted in writing “to the

Lieutenant who is the grievant’s immediate supervisor.” CBA, Art. 10. Five progressive

resolution levels exist in the CBA’s grievance process, culminating in binding arbitration.

CBA, Art. 10.

Grievance History.

¶15    Appellants Edwards and Kohm filed grievances in early October 2004 with the

Board of Commissioners for Cascade County, and claimed violations of the County’s

promotion policies. Edwards asserted Undersheriff Corneliusen failed to follow accepted

procedure for considering Edwards as a candidate for promotion from Deputy Coroner to

3
  CBA, Article 7, § 1: “Promotions are a management right which are governed by the Policies
of the Sheriff. The primary objective in promoting personnel is to select the most competent,
responsible, effective and eligible members available to fill the open supervisory and command
positions.”
                                              6
Chief Deputy Coroner. Kohm alleged Sheriff Castle failed to follow proper process in

considering Kohm as a candidate for promotion from sergeant to lieutenant.                     In

December 2004, the Board of County Commissioners found in favor of Edwards and

Kohm and directed the promotion processes be restarted and redone.

¶16    Appellant Zrowka wrote a letter to Sheriff Castle expressing concerns over the

elimination of an evidence technician/photo lab technician position. Zrowka delivered

copies of this letter to the County Attorney’s office and to the human resources officer. 4

¶17    In late October 2004, Edwards and Kohm also filed complaints of discrimination

with the Montana Department of Labor and Industry (Department) alleging that they

were subjected to employment discrimination based on their political beliefs.

¶18    In December 2004, Doe, Goaziou, and Zrowka filed similar complaints of

discrimination with the Department.

Human Rights Bureau Proceedings.

¶19    In April 2005, the HRB issued its report finding reasonable cause that Edwards

was subjected to discrimination, and the HRB retained jurisdiction. On that same date,

the HRB issued a report finding no reasonable cause to support Kohm’s complaint, and

dismissed it. The Department issued Kohm a Notice of Dismissal, accompanied by a




4
   Zrowka’s letter is generally referred to as a “grievance” in Appellants’ Brief and is mentioned
in the June 26, 2006 deposition of Zrowka as “Exhibit 1.” This letter is not included in the
record on appeal.

                                                7
“right to sue” letter informing Kohm he could pursue his complaint of discrimination in

district court.5

¶20    In June 2005, the HRB found a lack of reasonable cause to support the complaints

of Doe, Goaziou, and Zrowka. Those complaints of discrimination were dismissed, and

“right to sue” letters were issued.

¶21    In July 2006, the HRB issued its final order and judgment for Deputy Edwards,

resulting in a $40,948.83 award for emotional damages and loss of past wages, a $795.42

per month award of future wages for a year, health care costs for anxiety and depression,

and restoration to duty status. The HRB decision permanently enjoined the County from

further adverse discriminatory employment action based upon political ideas or beliefs.

Neither party appealed this award. Although Edwards prevailed before the HRB on his

claim that he was unlawfully retaliated against because of his political beliefs and ideas,

he contends he is entitled to pursue independent constitutionally-based claims, including

constitutionally-based privacy claims which derive from wrongful disclosure of his

private personnel matters and false allegations that he used marijuana.

¶22    Before the HRB investigations were completed, Edwards and Kohm filed this

lawsuit in District Court alleging violations of their constitutional rights of freedom of

speech and freedom of association under the Montana Constitution and 42 U.S.C. § 1983,




5
   A “right to sue” letter is the practitioner’s term derived from usage and the subtext of
§ 49-2-504(7)(b), MCA.

                                            8
in addition to Edwards’ alleged right to privacy violation. The First Amended Complaint

added Doe, Goaziou and Zrowka as plaintiffs.

Montana District Court Proceedings.

¶23    Because federal civil rights violations were alleged under 42 U.S.C. § 1983, the

County removed all of these claims to federal court. The County then filed a motion in

the United States District Court to stay the federal court proceedings on the ground that

the administrative proceedings under the Montana Human Rights Act had not been

exhausted and finalized. In its motion to stay, the County argued the gravamen of

Appellants’ claims was grounded in discrimination. The County asserted the Montana

Human Rights Act, codified at Title 49, MCA (MHRA), provides the exclusive remedy

for illegal discrimination, and in any event, the MHRA required exhaustion of its

informal and formal administrative proceedings before these matters could proceed in a

district court setting.

¶24    Before the United States District Court issued a ruling on the County’s motion to

stay, Appellants determined that their allegations of violations of civil rights claims under

42 U.S.C. § 1983 were redundant with their claims under the Montana Constitution and

sought leave to file their Third Amended Complaint which dismissed their §1983 claims.

Appellants concurrently moved to remand this case to the state district court. The United

States District Court granted Appellants’ motion to file the Third Amended Complaint

and remanded this case to the Montana Eighth Judicial District Court in Cascade County.




                                             9
¶25    The three Appellants who were deputy sheriffs (Edwards, Kohm, Zrowka)

subsequently sought leave to file their Fourth Amended Complaint to add statute-based

wage claims, alleging they “recently learned information which, if true, supports a claim

that the County has been paying them less than the amounts required by law for deputies

sheriff . . . .” The District Court granted leave to file the Fourth Amended Complaint.

¶26    In April 2006, the County for the first time raised the defense that the three

Appellants who were deputy sheriffs had failed to exhaust their administrative remedies

under the requirements of the CBA. Appellants initially did not oppose the addition of

this affirmative defense and filed a notice so indicating.

¶27    In May 2006, the Fifth Amended Complaint added St. Onge as a plaintiff. St.

Onge alleged his constitutional rights were violated, he was forced to resign, and is owed

wages due. St. Onge admits he filed no discrimination claim under the MHRA. He

disputes, however, that the exclusive remedy provision of the MHRA preempts his

constitution-based political retaliation claims.

¶28    In July 2006, the County requested dismissal of the political discrimination and

wage claims of Edwards, Kohm, and Zrowka because of their failures to exhaust the

remedies under the CBA. Appellants opposed dismissal on the following grounds:

1.     The terms of the CBA’s provision requiring arbitration of an individual’s
       legislatively created cause of action must be “clear and unmistakable,” citing
       Wright v. Universal Maritime Service Corp., 525 U.S. 70, 119 S. Ct. 391 (1998).

2.     The United States Supreme Court’s decisions in Alexander v. Gardner-Denver
       Co., 415 U.S. 36, 94 S. Ct. 1011 (1974) and Barrentine v. Arkansas-Best Freight
       Sys., Inc. 450 U.S. 728, 101 S. Ct. 1437 (1981), stand for the proposition that
       Appellant deputies’ constitutional and tort claims, and statutory discrimination and
                                              10
       wage claims, are based upon the law of the land rather than the “law of the shop,”
       cannot be waived, and are independent of the collective bargaining process, and
       thus are exempt from the grievance process in the CBA.

3.     The doctrine of equitable estoppel precluded the County’s “failure to exhaust
       remedies” defense.

¶29    Various claims in the Fifth Amended Complaint were then dismissed by consent

of the parties.6 The District Court’s summary judgment decision addressed Appellants’

remaining claims for relief under Counts I, II, IV, and V of the Fifth Amended

Complaint.

¶30    In Count I, the Appellants alleged various constitutional violations. They claimed

that Castle and Corneliusen retaliated against them “on the basis of their exercise of their

freedom to associate with others of similar political beliefs and their exercise of their

freedom of speech, when they supported Kent Funyak, and in retaliation for their political

ideas and activity.”   This count also alleged that the defendants made employment

decisions which caused these Appellants to suffer damages, and that these decisions were

motivated by the Appellants’ “exercise of their constitutional rights to freedom of

association and freedom of speech.” They also claimed that the defendants violated their

constitutionally-guaranteed right to privacy.

¶31    Count II directly alleged that the defendants discriminated against them in

violation of the Montana Constitution, the Montana Governmental Code of Fair

Practices, and Title 49, chapters 2 and 3, of the MHRA. Kohm, Zrowka, Doe, Goaziou,


6
  The dismissed claims were Count III, Interference with Employment; Count V, Goaziou’s
wage claim; and Count V, overtime wage claims of Kohm and Doe.

                                            11
and Edwards brought these discrimination claims before the HRB. The HRB awarded

Edwards damages based on this claim. See Opinion, ¶ 21. The HRB denied the claims

of Kohm, Zrowka, Doe, and Goaziou, and issued them “right to sue” letters.              See

Opinion, ¶¶ 19-20. St. Onge did not file a discrimination claim with the HRB.

¶32     Count IV alleged intentional or negligent infliction of emotional distress. Included

in this claim is the assertion that Appellants “have suffered severe mental and emotional

distress . . . .”

¶33     Count V alleged that unpaid wages are owed to Edwards, Kohm, Zrowka, Doe,

and St. Onge. The Appellants claimed that they were entitled to compensation for lost

wages and liquidated damages pursuant to Title 39, chapter 3, part 2, MCA, and Title 7,

chapter 4, part 2, MCA.

¶34     The District Court determined that the essence of Appellants’ claims involved

discrimination and wage claims. Under the rule in MacKay v. State, 2003 MT 274, 317

Mont 467, 79 P.3d 236, the District Court dismissed all of the remaining claims of

Deputies Edwards, Kohm and Zrowka, under Counts I (violation of constitutional rights),

II (political discrimination), IV (infliction of emotional distress) and V (unpaid wages),

on the ground they were barred for failure to exhaust administrative remedies through the

CBA grievance process before pursuing their civil claims in District Court. The District

Court concluded that the discrimination claims could have been brought under the CBA’s

discrimination clause, and that the unpaid wage claims could have been brought under

Article 16 of the CBA. See Opinion, ¶¶ 12, 13. The District Court rejected Appellants’

estoppel argument, and Appellants do not raise it on appeal.
                                             12
¶35    Relying on a line of cases beginning with Harrison v. Chance, 244 Mont. 215,

223, 797 P. 2d 200, 205 (1990), the District Court also dismissed the constitutional

claims (Count I) and infliction of emotional distress (Count IV) claims of Doe and

Goaziou.    The District Court determined that the gravamen of these claims was

discrimination and that the MHRA provides the exclusive remedy for discrimination-

related claims.   Because Doe and Goaziou failed to bring these claims before the

Department, the District Court concluded they were now barred. On similar grounds, the

District Court dismissed St. Onge’s claims under Counts I and IV. The District Court

ruled St. Onge was required to have first filed an MHRA claim to preserve his

constitutional and emotional distress claims, since they are subsumed within the

exclusivity provision of the MHRA. The political discrimination claims of Doe and

Goaziou under Count II remained for trial since these claims had been submitted to the

HRB.

¶36    The District Court permitted the statutory wage claims of Doe and St. Onge to

proceed, provided they amended their complaint to include a contract theory. They

complied, filing a Sixth Amended Complaint. Goaziou, the detention officer, filed no

wage claim for sheriff’s deputy wages.

¶37    The District Court thereafter granted M. R. Civ. P. 54(b) certification, allowing

Appellants to appeal the District Court’s summary judgment rulings.

                             STANDARD OF REVIEW

¶38    Summary judgment is appropriate when “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that
                                           13
there is no genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” M. R. Civ. P. 56(c). We review de novo a district court’s

decision to grant summary judgment. GRB Farm v. Christman Ranch, Inc., 2005 MT 59,

¶ 7, 326 Mont. 236, 108 P.3d 507. When the material facts are undisputed, we review

whether the district court correctly applied the law. Farmers Union Mutual Ins. Co. v.

Staples, 2004 MT 108, ¶ 18, 321 Mont. 99, 90 P.3d 381; Hogenson Const. of N.D. v.

Mont. State Fund, 2007 MT 267, ¶11, 339 Mont. 389, 170 P.3d 471. The construction

and interpretation of a contract is a question of law. Ophus v. Fritz, 2000 MT 251, ¶ 19,

301 Mont. 447, 11 P.3d 1192.

                                      DISCUSSION

¶39    Appellants fall into two categories:

       1.     The three full-time deputy sheriffs who were defined as an “Employee”

under the negotiated terms of the CBA: Edwards, Kohm, and Zrowka.

       2.     The sheriff’s lieutenants Doe and St. Onge and detention lieutenant

Goaziou who were not included in the definition of “Employee” under the terms of the

CBA.

¶40    We address the following:

I.     Were Edwards, Kohm, and Zrowka—the three full-time deputy sheriffs defined as
       “Employees” under the CBA—required to exhaust the CBA grievance procedure
       before pursuing their political discrimination, wage and related claims in the
       District Court?

II.    Does the MHRA constitute the “exclusive remedy” for the claims of Edwards,
       Kohm, and Zrowka, as well as sheriff’s lieutenants Doe and St. Onge and
       detention lieutenant Goaziou, precluding any other constitutional, statutory based,
       or tort claims which are premised upon their MHRA claims?
                                              14
III.   Were all of the Appellants deprived of their constitutional rights to a jury trial,
       access to the courts, and full legal redress?

¶41    At the outset we note a grievance under the CBA must be initiated by a written

notification to the “Lieutenant who is the grievant’s immediate supervisor . . . .” The

grievances filed by Edwards and Kohm in October 2004 with the Board of

Commissioners for Cascade County involved promotion disputes which were

management rights specifically excluded from the CBA grievance process. CBA, Art. 4

and Art 7. Zrowka delivered his letter to the Cascade County Attorney’s Office and

human resources officer, rather than to his supervising lieutenant. The District Court

correctly concluded none of these deputies initiated any grievance under the terms of the

CBA before bringing these claims in District Court.

¶42    Issue One: Were Deputies Edwards, Kohm, and Zrowka required to exhaust the
       CBA grievance procedure before pursuing their political discrimination, wage,
       and related claims in the District Court?

¶43    We start this analysis by confirming that because Doe, St. Onge, and Goaziou

were not covered by the CBA, their respective claims are unaffected by the following

discussion.

¶44    The District Court determined that the gravamen of Counts I, II, and IV, was

discrimination, and that the gravamen of Count V was unpaid wages. Relying upon the

CBA’s non-discrimination clause, Article 16 of the CBA, and this Court’s precedent in

MacKay, the District Court determined that Edwards, Kohm, and Zrowka were required

to grieve their discrimination and wage claims before they could present them in District

Court. Because they failed to do so, these claims were now barred.
                                           15
¶45    Deputies Edwards, Kohm, and Zrowka argue that because their constitutional and

statutory rights do not derive from the CBA, these claims are not subject to preemption

under the CBA.      It follows, they assert, they are not required to exhaust the CBA

grievance procedure before filing a lawsuit for redress of violations they claim under

Montana’s Constitution: Article II, Section 6 (freedom of assembly), Section 7 (freedom

of speech), Section 8 (right of participation in government), Section 10 (right of

privacy—Edwards), and Section 17 (due process of law); MHRA statutory discrimination

claims (Title 49, MCA); and statutory wage claims under §§ 7-4-2503 through -2508,

MCA.     They additionally argue the wording of the CBA makes clear its grievance

procedure is limited, i.e., its coverage excludes statute-based claims and only prohibits

discrimination for “Association” activities. 7

¶46    Appellants, joined by Amicus Montana Trial Lawyers Association, further

contend any collective bargaining agreement governs only limited employment issues

such as wages, hours, or fringe benefits for the good of the whole of the members of a

collective bargaining unit. They assert a collective bargaining agreement may never

bargain away or waive any individual member’s statutory or constitutionally-based rights

and remedies.

¶47    The County counters that the CBA includes express provisions that the Employer

will “provide equal opportunities . . . to all Employees regardless of . . . political belief,”

and will pay wages “according to applicable Montana State Law . . . .” Since these

7
   CBA, Art. 6, in part, states: “The Employer will not discriminate against any Employee
because of Association membership or activity. . . .”
                                                 16
contractual provisions were negotiated, bargained for, and written into the CBA, and

specifically address the two primary categories in dispute, the County reasons that

Appellants Edwards, Kohm, and Zrowka were required to invoke the CBA grievance

procedure to attempt to resolve these two categories of their claims before proceeding in

District Court.   The County asserts that since the Appellants’ constitutional and

statute-based discrimination claims are intertwined with the discrimination claims

covered under the CBA grievance procedure, these claims also fall within the scope of

the CBA.

¶48   The parties’ arguments mirror the tension that has long-existed between two

competing aspects of management labor relations policy. These competing policies are

well described in Barrentine:

      The first, reflected in statutes governing relationships between employers
      and unions, encourages the negotiation of terms and conditions of
      employment through the collective-bargaining process. The second,
      reflected in statutes governing relationships between employers and their
      individual employees, guarantees covered employees specific substantive
      rights. A tension arises between these policies when the parties to a
      collective-bargaining agreement make an employee’s entitlement to
      substantive statutory rights subject to contractual dispute-resolution
      procedures.

Barrentine, 450 U.S. 734-35, 101 S. Ct. at 1441.


¶49   Under Montana law, an employee covered by the terms of a collective bargaining

agreement generally must first attempt to resolve covered contract disputes by exhausting

the grievance procedures written into the agreement before proceeding into court.

MacKay, ¶ 25; Irving v. School Dist. No. 1-1A, Valley Co., 248 Mont. 460, 469, 813 P.2d


                                           17
417, 422 (1991); Lueck v. United Parcel Serv., 258 Mont. 2, 8, 851 P.2d 1041, 1044-45

(1993). The policy of the state of Montana favors resolving covered contract labor

disputes, if possible, according to the terms of a collective bargaining agreement. Small

v. McRae, 200 Mont. 497, 502, 651 P.2d 982, 985 (1982). The reasoning behind this rule

is to encourage a “ ‘friendly adjustment of all disputes between public employers and

their employees . . . .’ ” Small, 200 Mont. at 502, 651 P.2d at 985 (quoting § 39-31-101,

MCA). 8

¶51    Federal law, rather than state law, governs the interpretation of the scope of a

collective bargaining agreement. Miller v. Glacier Co., 257 Mont. 422, 425, 851 P.2d

401, 403 (1993) (citing Teamsters Union v. Lucas Flour Co., 369 U.S. 95, 82 S. Ct. 571

(1962).

                      “As a general rule . . . federal labor policy requires that
              individual employees wishing to assert contract grievances
              must attempt use of the contract grievance procedure agreed
              upon by employer and union as the mode of redress. If the
              union refuses to press or only perfunctorily presses the
              individual’s claim, differences may arise as to the forms of
              redress then available. (Citations omitted). But unless the
              contract provides otherwise, there can be no doubt that the
              employee must afford the union the opportunity to act on his
              behalf. Congress has expressly approved contract grievance
              procedures as a preferred method for settling disputes and
              stabilizing the ‘common law’ of the plant. (Citations
              omitted.)

                                            .   .    .

8
   Section 39-13-101, MCA, reads as follows: “In order to promote public business by removing
certain recognized sources of strife and unrest, it is the policy of the state of Montana to
encourage the practice and procedure of collective bargaining to arrive at friendly adjustment of
all disputes between public employers and their employees.”

                                                18
                       “A contrary rule which would permit an individual
                employee to completely sidestep available grievance
                procedures in favor of a lawsuit has little to commend it. In
                addition to cutting across the interests already mentioned, it
                would deprive employer and union of the ability to establish a
                uniform and exclusive method for orderly settlement of
                employee grievances.”

                                              .   .    .

                To allow a member of the collective bargaining unit to completely
         sidestep available procedures would, just as under federal law, exert a
         disruptive influence upon both the negotiation and administration of
         collective bargaining agreements and effectively deprive employers and
         unions of the ability to establish a uniform and exclusive method for the
         orderly settlement of employee grievances.

Small, 200 Mont. at 503, 504, 651 P.2d at 986 (quoting Republic Steel Corp. v. Maddox,

379 U.S. 650, 652-53, 85 S. Ct. 614, 616-17 (1965) (construing the National Labor

Relations Act).9

¶52      Section 301 of LMRA has served as a springboard for creation of federal common

law for a uniform interpretation of collective bargaining agreements.10                 Foster v.


9
    The National Labor Relations Act of 1935 (NLRA), 29 U.S.C. §§ 151-169 guarantees
employees the right to self-organization, to form, join, or assist labor organizations, and to
bargain collectively. The Labor Management Relations Act of 1947 (LMRA), 29 U.S.C. § 141,
amended the NLRA and generally imposes limits on a covered employee’s ability to strike,
picket, and boycott.
10
     Section 301, codified at 29 U.S.C. § 185(a), provides:

         Suits for violation of contracts between an employer and a labor organization
         representing employees in an industry affecting commerce as defined in this Act,
         or between any such labor organizations, may be brought in any district court of
         the United States having jurisdiction of the parties, without respect to the amount
         in controversy or without regard to the citizenship of the parties.

                                                  19
Albertsons, Inc., 254 Mont. 117, 122, 835 P.2d 720, 724 (1992) (citing Textile Workers

Union v. Lincoln Mills, 353 U.S. 448, 77 S. Ct. 912 (1957)). In Foster we noted the

United States Supreme Court has held § 301 preemption ensures federal law is the basis

for interpreting collective bargaining agreements. Foster, 254 Mont. at 125, 835 P.2d at

725 (implied covenant of fair dealing claim preempted by the scope of the collective

bargaining agreement) (citing Lingle v. Norge Division of Magic Chef, Inc., 486 U.S.

399, 108 S. Ct. 1877 (1988)).

¶53    When reviewing whether a claim is covered by the terms of a collective

bargaining agreement, we interpret its terms “according to the plain, ordinary language

used by the parties.” Winchester v. Mountain Line, 1999 MT 134, ¶ 28, 294 Mont. 517,

982 P.2d 1024. The Court must ascertain “ ‘whether the party seeking arbitration is

making a claim which on its face is governed by the contract.’ ” Klein v. State, 2008 MT

189, ¶ 20, 343 Mont. 520, 185 P.3d 986 (quoting United Steelworkers of Am. v. Am. Mfg.

Co., 363 U.S. 564, 568, 80 S. Ct. 1343, 1346 (1960)). If the claim is covered, the

grieving party must pursue and exhaust the remedies provided for in the collective

bargaining agreement. Klein, ¶ 20 (citing Lueck, 258 Mont. at 8, 851 P.2d at 1044-45).

We have previously stated that “[o]nly in those cases where it is certain that the

arbitration clause contained in a collective bargaining agreement is not susceptible to an

interpretation that covers the dispute is an employee entitled to sidestep the provisions of

the collective bargaining agreement.”      Small, 200 Mont. at 504, 651 P.2d at 986;

Winchester, ¶ 24; Klein, ¶ 11.


                                            20
¶54   In Klein, we determined the plaintiff’s tort claim of deceit was neither “intimately

bound” nor “rooted” in the wording of that particular collective bargaining agreement.

Klein, ¶ 31. The scope of the language in Klein’s collective bargaining agreement, on its

face, addressed neither deceit nor infliction of emotional distress. Similarly, in Winslow

v. Mont. Rail Link, Inc., 2005 MT 217, 328 Mont. 260, 121 P.3d 506, we held:

             Winslow has consistently argued that his theory did not involve the
      CBA, but instead pertained to allegations that MRL used a false pretext to
      fire him in order to further a scheme designed to intimidate railroad
      workers so that they would not file injury reports. After review of the
      record, we conclude that Winslow’s claims are not “firmly rooted” in a
      breach of the CBA itself . . . .

Winslow, ¶ 36.

¶57   The scope of a collective bargaining agreement may be negotiated to include

arbitration of any controversy. Miller, 257 Mont. at 426-27, 851 P.2d at 403-04. Thus, a

broadly written arbitration provision requiring arbitration of “any controversy”

encompasses a tort claim of assault. Vukasin v. D.A. Davidson & Co., 241 Mont. 126,

133, 785 P.2d 713, 718 (1990) (citing Zolezzi v. Dean Witter Reynolds, Inc., 789 F.2d

1447, 1449-50 (9th Cir. 1986)). However, when the scope of a collective bargaining

agreement is written more narrowly than “any controversy” or “all claims,” the contract

wording must be reviewed to determine which claims are not rooted in the collective

bargaining agreement and are capable of being litigated directly in court. Miller, 257

Mont. at 427, 851 P.2d at 404.

¶58   We apply the above labor law rules to the constitutional, statutory discrimination,

emotional distress, and statutory wage claims of Edwards, Kohm, and Zrowka. Each

                                           21
claim must be evaluated to determine to what extent, if any, if it is covered by the

wording of the collective bargaining agreement. The claims fall into three categories:

       1.     Constitution-based claims (assembly, speech, participation, privacy, due

process);

       2.     Statutory claims (discrimination and wage);

       3.     Tort claims (emotional distress).

1. Constitution-based claims.

¶59    Appellants cite Dorwart v. Caraway, 2002 MT 240, 312 Mont. 1, 58 P.3d 128, for

the proposition that Montana’s constitutional guarantees of Freedom of Assembly (Art.

II, Section 6), Freedom of Speech (Art. II, Section 7), Right of Privacy (Art. II, Section

10), and Due Process of Law (Art. II, Section 17) are self-executing constitutional

provisions, wholly independent of the CBA.          The District Court concluded the

constitutional claims of interference with assembly, speech, privacy and due process

made by Edwards, Kohm, and Zrowka are actually components of their underlying

political discrimination claims. Accordingly, it held that the Appellants were required

both to grieve them under the CBA’s discrimination clause and present them to the HRB

in order to preserve them in District Court.

¶60    As discussed below, see Opinion, ¶ 78, we agree with the District Court that for

purposes of the MHRA the gravamen of Count I was discrimination and that the

Appellants were required to bring these claims before the HRB as a precondition to filing

suit in District Court. See Shields v. Helena School District No. 1, 284 Mont. 138, 149,

943 P.2d 999, 1005 (1997). Thus, irrespective of whether the claims in Count I were
                                               22
covered by the CBA itself, these Appellants are now barred from bringing the claims in

Count I for failure to comply with the MHRA.11

2. Statutory discrimination and wage claims.

¶61    The District Court determined the CBA, on its face, covered the discrimination

and wage claims of Edwards, Kohm, and Zrowka. Appellants Edwards, Kohm, and

Zrowka assert the CBA only prohibits discrimination “because of Association

membership or activity.” They also argue Article 4 of the CBA excludes the statutory

duties of the office of the sheriff from the grievance process, including Appellants’

statute-based discrimination claims and wage claims.

¶62    The County responds that the first paragraph of the non-discrimination clause in

the CBA clearly addresses discrimination, including political discrimination. The full

text of the non-discrimination clause found at Article 6 in the CBA states:

              It is the permanent policy of the Employer to provide equal
       opportunities for employment, retention, and advancement to all Employees
       regardless of race, color, creed, national origin, sex, age, marital status or
       political belief. (Emphasis added.)
              The Employer will not discriminate against any Employee because
       of Association membership or activity and the Association will not
       discriminate against any Employee because of lack of membership or lack
       of activity in the Association.

¶63    The wage clause, Article 16 of the CBA, simply requires the Employer to pay

wages to employees “calculated according to applicable Montana State Law.”




11
    We reiterate that these Appellants could proceed in District Court with their employment
discrimination claims; it is their “constitution-based” claims that are barred for failure to raise
them before the HRB.
                                                 23
¶64    In Wright, the United States Supreme Court held that a collective bargaining

agreement does not waive an employee’s right to a judicial forum for a legislatively

created cause of action unless it contains a “clear and unmistakable” waiver of that right.

Wright, 525 U.S. at 81, 119 S. Ct. at 397; see also 14 Penn Plaza, LLC v. Pyett, ___ U.S.

___, 129 S. Ct. 1456, 1474 (2009) (holding that a collective bargaining agreement which

“clearly and unmistakably” requires union members to arbitrate claims brought under the

Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634, is enforceable as

a matter of federal law). Nothing in the language of the CBA, including Art. 6, “clearly

and unmistakably” announces any requirement to arbitrate the statutory discrimination or

wage claims presented here. The first paragraph of Article 6 merely announces the

County’s general policy regarding non-discrimination. The second paragraph refines the

general policy by further announcing that the County will not discriminate “because of

Association membership or activity.”

¶65    Moreover, Art. 4 of the CBA specifically excludes the duties of the office of the

sheriff from the CBA grievance procedure. The duties of a sheriff include adherence to

Montana’s statutory non-discrimination policy commanded by the MHRA, as well as the

duty of complying with the statutory wage scheme for deputy sheriffs set forth in

§ 7-4-2508, MCA. A statutory enforcement mechanism exists for wage claims under

Title 39, chapter 3, part 2, MCA. No language in the CBA unmistakably waives the

Appellants’ rights to seek judicial relief to enforce the County’s corresponding duties.

¶66    We therefore conclude that the CBA does not “clearly and unmistakably” cover

Appellants’ statutory discrimination and wage claims. The scope of the CBA does not
                                            24
require arbitration of the discrimination claims of Kohm and Zrowka, and the wage

claims brought by Edwards, Kohm, and Zrowka, as a precondition to filing suit in

District Court.

3. Emotional distress tort claims.

¶67    Count IV alleges emotional distress, presumably stemming from Appellants

alleged constitutional and discrimination injuries. Infliction of emotional distress can be

an independent cause of action. Sacco v. High Country Independent Press, Inc., 271

Mont. 209, 896 P.2d 411 (1995). However, emotional distress damages are specifically

covered by the remedy provisions of the MHRA. Section 49-2-506, MCA; Benjamin v.

Anderson, 2005 MT 123, 327 Mont. 173, 112 P.3d 1039. In fact, the District Court

determined that Appellants’ emotional distress claims, like the claims in Count I, at their

essence arose out of the discrimination claims which fall within the exclusive remedy

provisions of the MHRA. We agree with the District Court. Thus, irrespective of

whether the claims in Count IV were covered by the CBA itself, the Appellants are

prohibited from bringing them in District Court because they failed to properly bring

them before the HRB.

¶68    For these reasons, we hold that the Appellants’ failure to bring the claims in

Counts I and IV before HRB bars them from pursuing them now, regardless of whether

they are covered by the terms of the CBA. We therefore affirm the District Court’s

dismissal of Counts I and IV.

¶69    However, we reverse the District Court’s dismissal of the statutory discrimination

claims of Kohm and Zrowka.           We conclude that the CBA does not “clearly and
                                            25
unmistakably” cover these claims and that Kohm and Zrowka may pursue their statutory

discrimination claims in District Court, since they did bring them before the HRB and

were issued “right to sue” letters.12

¶70      We also reverse the dismissal of the statutory wage claims of Edwards, Kohm, and

Zrowka. These Appellants did not waive their right to seek relief for violations of

Montana’s wage protection statutes. These claims may now proceed in the District

Court.

¶71      Issue Two: Does the MHRA constitute the “exclusive remedy” for the claims of
         Edwards, Kohm, and Zrowka, as well as sheriffs’ lieutenants Doe and St. Onge
         and detention lieutenant Goaziou, precluding any other constitutional, statutory,
         or tort claims which are premised upon their MHRA claims?

¶72      Following the reasoning in a line of cases commencing with Harrison, the District

Court ruled the gravamen of the constitutional and emotional distress tort claims of Doe,

St. Onge and Goaziou was based on political discrimination for their individual, personal

political beliefs. As such, these claims fell within the exclusive remedy provision of the

MHRA. Section 49-2-509(7), MCA, recodified in 2007 as § 49-2-512(1), MCA, states:

         The provisions of this chapter establish the exclusive remedy for acts
         constituting an alleged violation of chapter 3 or this chapter, including acts
         that may otherwise also constitute a violation of the discrimination
         provisions of Article II, section 4, of the Montana constitution or 49-1-102.
         A claim or request for relief based upon the acts may not be entertained by
         a district court other than by the procedures specified in this chapter.



12
    Because Edwards has received a favorable ruling from the HRB and has not appealed its
decision, he is barred from pursuing further claims by virtue of the MHRA. Shields, 284 Mont.
at 149, 943 P.2d at 1005. In this connection, we note our agreement with the District Court’s
determination that Edwards’ constitutional privacy claims were discrimination claims properly
submitted before the Department.
                                                26
¶73      The District Court permitted Doe and Goaziou to pursue their constitutional and

emotional distress claims only in the context of their political discrimination claims.

Counts I (violation of constitutional rights) and IV (infliction of emotional distress), as

independent claims, were dismissed.            Since St. Onge did not file a discrimination

complaint under the MHRA, the District Court ruled St. Onge is disallowed from

proceedings with his Count I and Count IV claims. We uphold the District Court on this

issue.

¶74      Appellants Doe, St. Onge and Goaziou argue a plain reading of § 49-2-509(7),

MCA, extends the MHRA’s exclusive remedy provision only to the discrimination

provisions of Article II, Section 4, of the Montana Constitution.13 These Appellants

assert none of their claims were raised under Article II, Section 4.

¶75      In response, the County argues the District Court properly determined that the

underlying basis for all of the Appellants’ claims under Counts I and IV is discrimination

based upon political belief. We have consistently held the MHRA provides “the

exclusive remedy for illegal discrimination.” Shields, 284 Mont. at 149, 943 P.2d at 1005

(citing Harrison, 244 Mont. at 223, 797 P.2d at 205); Arthur v. Pierre Ltd., 2004 MT

303, ¶ 18, 323 Mont. 453, 100 P.3d 987 (The MHRA “bars a plaintiff from pursuing

other tort claims where those claims arise from underlying allegations of . . .

13
     Article II, Section 4 of the Montana Constitution reads:

         Individual dignity. 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


                                                 27
discrimination . . . .”). More recently we upheld the converse position in a dual MHRA

and Wrongful Discharge from Employment Act (WDEA) claim, holding a WDEA claim

which is not based upon “underlying allegations of . . . discrimination” is not precluded

by the exclusive remedy provisions of the MHRA. Vettel-Becker v. Deaconess Med. Ctr.

of Billings, Inc., 2008 MT 51, ¶ 40, 341 Mont. 435, 177 P.3d 1034 (“Discrimination can

occur without a wrongful discharge and a wrongful discharge can occur without a

discriminatory act.”).

¶76    Section 49-2-509(7), MCA (2007), extends the exclusive remedy under the

MHRA to any violation of Article II, Section 4 of the Montana Constitution. Article II,

Section 4 forbids discrimination against any person for exercising his or her political

rights or expressing their political ideas. The MHRA implements the non-discrimination

rights enumerated in Article II, Section 4 of the Montana Constitution. The exclusivity

rule applies to the political discrimination claims of Doe, Goaziou, and St. Onge, which

may only be raised within the statutory framework of a MHRA discrimination claim.

¶77    The District Court correctly ruled the gravamen of the non-wage claims of Doe,

Goaziou and St. Onge are grounded in allegations of political discrimination. All of the

Appellants alleged that their damages, including for severe emotional distress, were “a

direct and proximate result of the discrimination . . . .” Doe’s and Goaziou’s MHRA

complaints before the Department alleged discrimination and retaliation in employment

based upon political ideas, beliefs, and activity, all in violation of the MHRA, the


       exercise of his civil or political rights on account of race, color, sex, culture,
       social origin or condition, or political or religious ideas.
                                              28
Montana and United States Constitutions, and the “Civil Rights Act of 1964 and 1991, as

amended.” Each of the Appellants except St. Onge sought damages under the MHRA,

including for emotional distress. Before the District Court, Doe, Goaziou and St. Onge

alleged that the County and Sheriff’s office “employees acting at their direction began to

retaliate against [Appellants] . . . on the basis of their exercise of their freedom to

associate with others of similar political beliefs . . . in retaliation for their political ideas

and activity” and that the County “employed hiring, promotion, and transfer procedures

which altered [Appellants’] terms and conditions of employment, and which retaliated

against [Appellants].”

¶78    We conclude the essence of the Appellants’ constitution-based claims under Count

I, as well as their emotional distress claims under Count IV, is grounded in their

allegations of politically-motivated discrimination that was initiated by the sheriff. The

exclusive remedy for this form of alleged political discrimination is the MHRA. We

affirm the District Court’s ruling that the discrimination claims of Doe and Goaziou were

covered by the MHRA. Because they were issued “right to sue” letters, they may now

pursue their claims in District Court. We also affirm the District Court’s ruling that St.

Onge failed to preserve his discrimination claims by failing to file a complaint under the

MHRA.

¶79    Issue Three: Were all of the Appellants deprived of their constitutional rights to a
       jury trial, access to the courts, and full legal redress?

¶80    Appellants broadly argue on appeal that the effect of the District Court’s summary

judgment order deprived them of the right to access the court system to redress that

                                               29
remedy. These arguments are undeveloped on appeal and were neither raised in nor

addressed by the District Court.        Moreover, the record contains no evidence of

compliance with M. R. Civ. P. 24(d) or M. R. App. P. 27 related to notice regarding

constitutional questions when the State is not a party.

¶81    In State v. Johnson, 2005 MT 48, 326 Mont. 161, 108 P.3d 485, we declined to

address the defendant’s constitutional challenge because we could not “make such a

determination on the basis of the abbreviated arguments before us.”           Johnson, ¶11.

Likewise, in State v. Garrymore, 2006 MT 245, 334 Mont. 1, 145 P.3d 946, the

defendant asserted that Article II, Sections 24 and 26 of the Montana Constitution afford

a greater jury trial right than does the Sixth Amendment to the United States Constitution;

yet, critically, he “fail[ed] to offer a compelling reason why the greater jury trial right in

Montana dictate[d] a different result in his case.” Garrymore, ¶39. As a result, we found

his argument “too undeveloped to undertake a distinctive application of state

constitutional principles,” and we accordingly did not consider the argument further.

Garrymore, ¶¶ 38-39. The identical situation exists here.

¶82    Moreover, Appellants conceded in their reply brief that “Plaintiffs have not raised

the issue of the constitutionality of the MHRA . . . .” Accordingly, we decline to address

this issue further.

                                      CONCLUSION

¶83    The District Court did not err in dismissing Counts I and IV of the Appellants’

complaint.    The gravamen of these constitutional and emotional distress claims is

political discrimination, and these claims are therefore governed by the exclusivity
                                             30
provisions of the MHRA. Moreover, Edwards’ violation of privacy claims relate to his

discrimination claims under the MHRA, which have been finalized by the HRB. Thus,

irrespective of whether these claims were covered by the CBA itself, Edwards, Kohm,

and Zrowka were required to submit them to the HRB. Because all of the Appellants

failed to present the claims in Counts I and IV before the HRB in the context of a claim

for discrimination, none of the Appellants may now pursue these claims in District Court.

¶84   However, the District Court did err in concluding that the statutory discrimination

and wage claims of Edwards, Kohm, and Zrowka were covered by the CBA. The

statutory wage claims of these Appellants may be presented in the District Court.

¶85   Moreover, Kohm and Zrowka are not prohibited from pursuing their

discrimination claims in District Court since they properly presented them to the HRB

and were issued “right to sue” letters. Edwards may not, however, bring a discrimination

claim since his discrimination claim was resolved by the HRB and has not been appealed.

¶86   Doe, St. Onge, and Goaziou are not covered by the CBA. Appellants Doe, St.

Onge, and Goaziou filed claims of violations of their constitutional rights as well as

claims of intentional or negligent infliction of emotional distress. The gravamen of these

constitutional and emotional distress claims is political discrimination. Doe and Goaziou

filed MHRA complaints and were issued “right to sue” letters. Their claims remain for

resolution before the District Court. Moreover, the statutory wage claims of Doe and St.

Onge also remain for resolution before the District Court.

¶87   Accordingly, we affirm in part, reverse in part, and remand for further proceedings

consistent with this Opinion.
                                            31
                          /S/ JAMES A. HAYNES
                          District Court Judge James A. Haynes
                          sitting for former Chief Justice Karla M. Gray


We concur:

/S/ W. WILLIAM LEAPHART
/S/ PATRICIA O. COTTER
/S/ JOHN WARNER
/S/ JAMES C. NELSON
/S/ BRIAN MORRIS
/S/ JIM RICE




                            32
