                                          No. 05-615

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2007 MT 2


MARK CAMPANELLA,

              Plaintiff and Appellant,

         v.

MONTANA DEPARTMENT
OF TRANSPORTATION,

              Defendant and Respondent.



APPEAL FROM:         The District Court of the Twelfth Judicial District,
                     In and For the County of Hill, Cause DV-04-217,
                     Honorable David G. Rice, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Jeremy S. Yellin, Attorney at Law, Havre, Montana

              For Respondent:

                     Susan J. Rebeck, Department of Transportation, Helena, Montana



                                                       Submitted on Briefs: September 27, 2006

                                                                  Decided: January 3, 2007

Filed:


                     __________________________________________
                                       Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     Mark Campanella (Campanella) appeals from the order entered by the Twelfth

Judicial District Court, Hill County, dismissing his wrongful discharge complaint on the

ground it was barred by the applicable statute of limitations. We affirm.

¶2     We address the following issue on appeal:

¶3     Did the District Court err in dismissing Campanella’s complaint by determining

that Campanella was not entitled to a statutory 120-day extension of the otherwise

applicable one-year statute of limitations?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶4     On November 12, 2004, Campanella filed a complaint in District Court alleging

that the Montana Department of Transportation (MDT), his former employer, wrongfully

terminated his employment on July 16, 2003. Prior to filing his suit, Campanella had

filed a grievance regarding his discharge with the Board of Personnel Appeals (BOPA)

pursuant to § 2-18-1001, MCA. MDT moved to dismiss the complaint on three separate

grounds: that Campanella’s discharge was exempted from the Wrongful Discharge From

Employment Act (WDEA), because, pursuant to § 39-2-912, MCA, the discharge was

subject to a state statute providing a grievance procedure and remedy for contesting the

dispute; that the cause of action was barred by the one-year statute of limitations provided

by § 39-2-911(1), MCA; and that Campanella had failed to exhaust administrative

remedies available to him, as required by § 39-2-911(2), MCA.




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¶5     Following briefing and oral argument on the motion to dismiss, the District Court

entered an order determining that it would be necessary to look outside the complaint to

decide whether Campanella’s action was exempted, pursuant to § 39-2-912, MCA, from

the WDEA because of the existence of a separate statutory remedy, and that it could not

do so at this stage of the proceeding. Alternatively, however, the court determined that

Campanella’s complaint was barred by the applicable statute of limitations because he

was not entitled to the 120-day tolling provided by § 39-2-911(2), MCA, and his

complaint was not filed within one year. Having concluded the complaint must be

dismissed for that reason, the District Court did not rule on MDT’s argument regarding

failure to exhaust administrative remedies. Campanella appeals.

                               STANDARD OF REVIEW

¶6     A complaint may be dismissed under M. R. Civ. P. 12(b)(6), only if, assuming the

truth of all of the allegations of fact in the complaint, the complaint nevertheless fails to

set forth a claim upon which relief can be granted. The determination that a complaint

does not state a claim upon which relief can be granted is a conclusion of law, which we

review to determine whether the district court’s interpretation is correct. Boreen v.

Christensen, 267 Mont. 405, 408, 884 P.2d 761, 762 (1994).

                                      DISCUSSION

¶7     Did the District Court err in dismissing Campanella’s complaint by determining
that Campanella was not entitled to a statutory 120-day extension of the otherwise
applicable one-year statute of limitations?



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¶8     The District Court, in analyzing whether Campanella’s discharge was exempted

altogether from the WDEA pursuant to § 39-2-912, MCA, 1 looked to this Court’s

decision in Tonack v. Montana Bank of Billings, 258 Mont. 247, 854 P.2d 326 (1993). In

Tonack, the defendant bank argued that § 39-2-912, MCA, prohibited Tonack from

recovering under both the Wrongful Discharge Act and the federal Age Discrimination in

Employment Act. In evaluating that contention, this Court stated:

            Whether a discharge will ultimately be “subject to any other state or
       federal statute that provides a procedure or remedy for contesting the
       dispute” is not immediately known when a claim is filed. This must be
       determined before it is known whether the Wrongful Discharge Act may be
       applied. It is established only when a finder of fact has made that
       determination or when judgment on the claim has otherwise been entered.
       Therefore, we conclude that claims may be filed concurrently under the
       Wrongful Discharge Act and other state or federal statutes described in
       § 39-2-912, MCA, but if an affirmative determination of the claim is
       obtained under such other statutes, the Wrongful Discharge Act may no
       longer be applied.

Tonack, 258 Mont. at 255, 854 P.2d at 331.          Applying this case, the District Court

rejected MDT’s argument that § 2-18-1001, MCA, provided a grievance procedure for

MDT employees that exempted application of the WDEA, reasoning that this issue could

not yet be determined. Relying on Tonack, the District Court concluded that determining

whether this grievance procedure qualified as “any other state or federal statute” for

Campanella to contest his discharge for purposes of the exemption set forth in § 39-2-

912(1), MCA, first required an affirmative determination that this grievance mechanism


       1
       Section 39-2-912(1), MCA, states, in part: “Exemptions. This part [the WDEA]
does not apply to a discharge . . . that is subject to any other state or federal statute that
provides a procedure or remedy for contesting the dispute.”
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provided a procedure or remedy for contesting Campanella’s discharge, and since the

court could not look beyond the complaint, such a finding could not yet be made. We

agree with the District Court’s reasoning in this regard, and take no position on this issue,

despite our further discussion of the BOPA grievance procedure hereinafter.

¶9     The District Court then took up MDT’s next defense—that Campanella had filed

his action beyond the one-year limitation period in § 39-2-911, MCA. It was undisputed

that his WDEA action was not filed within one year after his July 16, 2003, discharge.

Therefore, unless Campanella was entitled to the maximum 120-day extension provided

in the statute for a claimant who had first contested his discharge by pursuing the “written

internal procedures” of the employer, his action would be time barred.2 For this defense,

it was Campanella’s turn to rely on the BOPA grievance procedure provided to MDT

employees under § 2-18-1001, MCA. He argued to the District Court, and does so here,

that this procedure constituted his employer’s “written internal procedures” for purposes

of § 39-2-911(2), MCA, and, therefore, his pursuit of this relief gave him the 120-day

extension of the one-year statute of limitations.        The District Court, in denying

Campanella the 120-day extension, noted that the BOPA grievance procedure was a

statutory creation, and concluded that because “the grievance procedure for Department

of Transportation employees [was] specified by statute,” it could not qualify as a “written

internal procedure” of the employer for purposes of § 39-2-911(2), MCA.              It thus

dismissed Campanella’s complaint as time barred.


       2
        Campanella’s complaint was filed one year and 119 days following his discharge.
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¶10     Section 39-2-911(1), MCA, requires that an action under the WDEA “must be

filed within 1 year after the date of discharge.” Section 39-2-911(2), MCA, adds the

tolling provision, providing that the one-year limitation period can be tolled for up to 120

days:

        If an employer maintains written internal procedures, other than those
        specified in 39-2-912, under which an employee may appeal a discharge
        within the organizational structure of the employer, the employee shall first
        exhaust those procedures prior to filing an action under this part. . . . The
        limitation period in subsection (1) is tolled until the procedures are
        exhausted. In no case may the provisions of the employer’s internal
        procedures extend the limitation period in subsection (1) more than 120
        days. [Emphasis added.]

Therefore, in order to conclude that Campanella’s pursuit of a BOPA grievance under

§ 2-18-1001, MCA, entitles him to a 120-day extension, it must first be determined that

the BOPA procedure is a “written internal procedure” for purposes of § 39-2-911(2),

MCA. Campanella contends that it is an internal procedure for MDT employees, who are

designated by statute to follow it. MDT counters that the procedure is not internal to the

organizational structure of MDT, but rather a statutory procedure outside the Department.

¶11     The interpretational difficulty here is created by the Legislature’s enactment of

two statutes addressing administrative remedies in the employment context, but without

coordination thereof. This particular problem arises only in a case involving a MDT

employee, who may want to seek relief under the WDEA, but who is also subject to § 2-

18-1001, MCA, which the Legislature has uniquely applied to MDT employees. That

provision provides, in pertinent part, as follows:


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              Transportation department personnel grievances -- hearing. (1)
       An employee of the department of transportation aggrieved by a serious
       matter of his employment based upon work conditions, supervision, or the
       result of an administrative action and who has exhausted all other
       administrative remedies is entitled to a hearing before the board of
       personnel appeals, under the provisions of a grievance procedure to be
       prescribed by the board, for resolution of the grievance.    [Emphasis
       added.]

¶12    Section 2-18-1001, MCA, provides MDT employees with the BOPA grievance

procedure for addressing a “serious matter of his employment.” There would seem little

disagreement that a discharge is a serious matter of employment, and thus applicable to

Campanella’s claim. The issue, however, is whether this procedure is the employer’s

“written internal procedure” for purposes of § 39-2-911(2), MCA, of the WDEA.

¶13    We disagree with the assertion that merely because this is a statutorily enacted

procedure, it cannot be considered the employer’s internal procedure. The MDT is a part

of state government, and the Legislature has statutorily created a procedure for MDT

employees to follow.     Even though enacted by statute, such a procedure could be

“internal” to those employees if so designed and intended to be by the statute. Thus, we

must look further into the workings of this particular dispute resolution procedure to

resolve the issue.

¶14    A reading of § 2-18-1001, MCA, reveals the language, italicized in the above

quotation, which we deem to be significant. The statute expressly provides that an MDT

employee must first “exhaust[] all other administrative remedies [before being] entitled to

a hearing before [BOPA] . . . .” Thus, the statute acknowledges that there may be yet


                                         7
other administrative remedies which an MDT employee must pursue before the employee

may turn to the BOPA grievance procedure.

¶15   In interpreting a statute, we consider “the statute’s text, language, structure, and

object.” S.L.H. v. State Compensation Mut. Ins. Fund, 2000 MT 362, ¶ 16, 303 Mont.

364, ¶ 16, 15 P.3d 948, ¶ 16. Although the Legislature did not coordinate the grievance

provisions of § 2-18-1001, MCA, with the provisions of the WDEA in §§ 39-2-911 or

39-2-912, MCA, the two statutes bear a similarity in their construction. The WDEA

requires a discharged employee to exhaust the employer’s internal written procedures

prior to initiating litigation. Section 39-2-912(2), MCA. Likewise, § 2-18-1001, MCA,

requires the discharged MDT employee to exhaust other administrative remedies prior to

commencing a BOPA grievance proceeding.

¶16   This correlation leads us to conclude that the BOPA grievance procedure cannot

be considered a “written internal procedure” for purposes of § 39-2-911(2), MCA.

Clearly, § 2-18-2001, MCA, contemplates other administrative remedies for the MDT

employee which must be exhausted prior to the initiation of a BOPA proceeding. It is

apparent that the Legislature intended these other remedies to be the mandatory “internal

procedures” for those employees.

¶17   Consequently, we conclude that the District Court correctly held that Campanella

missed the filing deadline for his WDEA action, because the one-year statute of

limitations found in § 39-2-911(1), MCA, expired before Campanella filed his complaint,

and the 120-day extension provided for in § 39-2-911(2), MCA, was not applicable, as

                                        8
the BOPA procedure provided for in § 2-18-1001, MCA, was not the employer’s written

internal procedure.

¶18    Affirmed.


                                                      /S/ JIM RICE


We concur:

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



Chief Justice Karla M. Gray, specially concurring.


¶19    I concur in the result the Court reaches here. However, I would limit the discussion to

the issue raised and argued by the parties.

¶20    The overarching issue is whether Campanella is entitled to toll the one-year statute of

limitations set forth in § 39-2-911(1), MCA, of the WDEA pursuant to the tolling provision

contained in § 39-2-911(2), MCA.         The tolling provision is available when a discharged

employee must exhaust an employer’s “written internal procedures” for appealing the discharge.

I agree with the Court that Campanella is not entitled to the tolling provision.

¶21    The subissue, however, is whether § 2-18-1001, MCA—a statutory personnel grievance

procedure enacted by the Legislature for MDT employees—is a “written internal procedure” for

purposes of the tolling provision in § 39-2-911(2), MCA. Campanella insists that it is. The

Court concludes it is not, and I agree. However, I would reach that result by concluding—

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simply and cleanly—that the statutory process involving the BOPA, a separate entity not within

the MDT, is not, by its terms, a written procedure internal to MDT, the employer.

¶22     Thus, I join in the result the Court reaches, which is to affirm the District Court, but not

in the entirety of its discussion.



                                                     /S/ KARLA M. GRAY




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