                                                                                              10/25/2016


                                          DA 16-0050
                                                                                          Case Number: 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
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

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    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.)
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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 three-

way 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

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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

                                           9
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

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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.

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