                                         No. 04-120

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2004 MT 303



AMBER K. ARTHUR,

              Plaintiff and Appellant,

         v.

PIERRE LIMITED, a Montana Corporation, d/b/a
The Pollard Hotel; DAVID H. KNIGHT, individually;
HOTEL COMPANY OF RED LODGE, INC., a Montana
Corporation; GARGOYLE COMPANY OF RED LODGE,
a Montana Corporation; 11th STREET CORPORATION,
a Montana Corporation; and RLG MANAGEMENT
COMPANY, INC., a Montana Corporation,

              Defendants and Respondents.




APPEAL FROM:         District Court of the Twenty-Second Judicial District,
                     In and For the County of Carbon, Cause No. DV-01-27
                     Honorable Blair Jones, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     L.B. Cozzens, Paul D. Odegaard; Cozzens, Warren & Harris,
                     Billings, Montana

              For Respondents:

                     James R. Halverson; Herndon, Sweeney & Halverson,
                     Billings, Montana



                                                       Submitted on Briefs: August 3, 2004

                                                                  Decided: November 1, 2004

Filed:

                     __________________________________________
                                       Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.



¶1     Amber K. Arthur (Arthur) appeals from the judgment entered by the Twenty-Second

Judicial District Court, Carbon County, on its order granting summary judgment to

Defendants as to all six claims raised in Arthur’s complaint. We affirm.

¶2     We restate the issues on appeal as follows:

¶3     1. Did the District Court err in granting summary judgment to the Defendants on five

of Arthur’s claims based on its determination that the claims were precluded by the exclusive

remedy provision of the Montana Human Rights Act?

¶4     2. Did the District Court err in granting summary judgment to the Defendants on

Arthur’s sixth claim based on its determination that the claim was barred by the applicable

statute of limitations?

                                     BACKGROUND

¶5     In August of 1991, David Knight (Knight) incorporated the Hotel Company of Red

Lodge (Hotel Company) under Montana law. Shortly thereafter, the Hotel Company

purchased the Pollard Hotel (Pollard), a hotel, restaurant and bar located in Red Lodge,

Montana. Knight subsequently incorporated Pierre Limited under Montana law in December

of 1992. In June of 1994, the Hotel Company and Pierre Limited entered into an agreement

pursuant to which the Hotel Company paid Pierre Limited to manage the Pollard’s hotel and

restaurant operations.




                                             2
¶6     In January of 1995, Arthur became employed as a waitress in the Pollard’s dining

room. On August 2, 1997, the Pollard hired James Kennedy (Kennedy) as a night auditor.

Approximately one month after beginning work for the Pollard, Kennedy received a written

reprimand from the Pollard’s management for making an improper comment to a different

waitress in the Pollard’s dining room. Soon after that, according to Arthur, Kennedy began

subjecting Arthur to comments and actions of a sexually harassing nature.

¶7     Arthur resigned from her employment with the Pollard in August of 1998. Although

her resignation letter did not specify her reason for leaving, Arthur subsequently contacted

the Montana Human Rights Commission (MHRC) seeking assistance in filing a sexual

harassment claim against the Pollard.       In January of 1999, Arthur filed a written

discrimination complaint against the Pollard with the MHRC, alleging the following

incidents and conduct by Kennedy and Pollard management.

¶8     Beginning in December of 1997, Kennedy directed comments to Arthur when she

walked past his work station regarding her body and her personal relationship with her

boyfriend. In January of 1998, Arthur and another female employee approached the

Pollard’s assistant manager and expressed concern regarding inappropriate comments by

Kennedy. The assistant manager took no action to resolve Arthur’s concerns. That same

month, Kennedy began to follow Arthur around the dining room while she was working and

ask her questions about her personal life. In February of 1998, Kennedy slapped Arthur on

the buttocks one day when she walked past his work station. Also beginning in February of

1998, Kennedy would approach Arthur in the dining room office or behind the bar on various


                                             3
occasions and stand in the entryway so she was “cornered” and could not move. Kennedy

also appeared at Arthur’s second job at a local pizza company to bring her gifts. Arthur

again complained of Kennedy’s actions to Pollard management in March of 1998, but no

action was taken.

¶9     One afternoon in April of 1998, Arthur received an anonymous telephone call at her

home. She recognized the voice on the phone as Kennedy. During the call, Kennedy stated

he was the person who had been making prior anonymous phone calls to her. Arthur

immediately contacted the Pollard, and she met with three members of the Pollard

management staff that afternoon. Arthur was told that a written record of the meeting and

her complaints would be made by the Pollard’s general manager. Although management told

Arthur she would no longer be left alone in the dining room at night when Kennedy was

working, by May of 1998 Arthur was being left alone at night to complete the day’s

paperwork. In June of 1998, Kennedy again began approaching Arthur in the dining room

to talk to her. One evening in that same month, when Arthur was bringing money from the

dining room to the front office, Kennedy stated to her that “I like to beat my waitress.”

Arthur reported the incident to Pollard management, but no action was taken. In July of

1998, Arthur gave the Pollard her written two-week notice of resignation, stating her last day

of work was August 1, 1998. After Arthur resigned from the Pollard, Kennedy continued

to follow her around town and she eventually obtained a restraining order against him. At

the time she filed her discrimination complaint against the Pollard with the MHRC, charges

were pending against Kennedy for violating the restraining order.


                                              4
¶10    After Arthur filed her complaint, the MHRC contacted Knight requesting a response

to the complaint on behalf of the Pollard. The MHRC specifically requested a copy of

Arthur’s personnel file, as well as statements from Kennedy and the Pollard management

staff responding to Arthur’s allegations. Knight responded that Kennedy and the various

management staff members named in the complaint no longer worked for the Pollard and,

as a result, he was unable to obtain their statements. He provided the personnel files of both

Arthur and Kennedy. Kennedy’s file contained only a reference to the incident in August

of 1997 involving a different Pollard dining room employee; there was no reference to any

of the other incidents alleged by Arthur. Moreover, Knight stated the Pollard had no other

records documenting the incidents alleged in the complaint.

¶11    The MHRC then requested that Arthur provide a written rebuttal to Knight’s response.

Arthur failed to do so. Consequently, on April 6, 1999, the MHRC sent Arthur a notice of

dismissal and right to file a civil action in district court. The notice specifically stated that

Arthur had 14 days after being served with the notice in which to file objections to the

dismissal and, if she did not file objections, she had 90 days from service in which to file an

action in district court if she wished to pursue her complaint. Arthur did not file objections

to the notice of dismissal and did not file an action in district court within 90 days.

¶12    On April 19, 2001, however, Arthur filed a complaint in the District Court against

Knight and Pierre Limited alleging various tort causes of action and requesting compensatory

and punitive damages. More than two years later, she filed an amended complaint, in part

to add as named defendants various corporations incorporated by Knight under Montana law


                                               5
(hereafter, Knight and all the corporations are, collectively, “the Defendants”). Arthur’s

amended complaint asserted the following causes of action: (1) failure to provide a safe

place to work, (2) negligent retention of Kennedy, (3) negligent supervision of Kennedy, (4)

intentional infliction of emotional distress, (5) negligent infliction of emotional distress, and

(6) sexual harassment under the Montana Human Rights Act (MHRA), §§ 49-2-101, MCA,

et seq.

¶13       The Defendants subsequently moved the District Court for summary judgment,

asserting that the first five of Arthur’s claims were barred by the exclusive remedy provision

of the MHRA and her sexual harassment claim was barred by the applicable statute of

limitations. The District Court agreed and granted summary judgment to the Defendants on

all of Arthur’s claims. Arthur appeals.

                                    STANDARD OF REVIEW

¶14       We review a district court’s ruling on a summary judgment motion de novo, using the

same Rule 56, M.R.Civ.P., criteria applied by that court. Jobe v. City of Polson, 2004 MT

183, ¶ 10, 322 Mont. 157, ¶ 10, 94 P.3d 743, ¶ 10. Rule 56(c), M.R.Civ.P., provides that

summary judgment shall be granted

          if the pleadings, depositions, answers to interrogatories, and admissions on
          file, together with the affidavits, if any, show that 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.

The party moving for summary judgment bears the initial burden of establishing the absence

of genuine issues of material fact and entitlement to judgment as a matter of law. If the



                                                  6
moving party meets this burden, the burden shifts to the nonmoving party to establish, by

more than mere denial and speculation, that a genuine issue of material fact exists. If a court

determines there are no genuine issues of material fact, the court must determine whether the

moving party is entitled to judgment as a matter of law. This determination constitutes a

conclusion of law which we review for error. Jobe, ¶ 10.

                                         DISCUSSION

¶15 1. Did the District Court err in granting summary judgment to the Defendants on five
of Arthur’s claims based on its determination that the claims were precluded by the exclusive
remedy provision of the MHRA?

¶16    The MHRA recognizes that the right to be free from discrimination on the basis of

race, creed, religion, color, sex, physical or mental disability, age or national origin is a civil

right which includes the right to obtain and hold employment without discrimination. See

§ 49-1-102(1), MCA. Moreover, it is an unlawful discriminatory practice for an employer

       to refuse employment to a person, to bar a person from employment, or to
       discriminate against a person in compensation or in a term, condition, or
       privilege of employment because of race, creed, religion, color, or national
       origin or because of age, physical or mental disability, marital status, or sex
       when the reasonable demands of the position do not require an age, physical
       or mental disability, marital status, or sex distinction.

Section 49-2-303(1)(a), MCA. Sexual harassment constitutes sexual discrimination under

the MHRA.       Harrison v. Chance (1990), 244 Mont. 215, 221, 797 P.2d 200, 204.

Furthermore, § 49-2-509(7), MCA, provides that

       [t]he provisions of [Title 49, chapter 2] 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


                                                7
       request for relief based upon the acts may not be entertained by a district court
       other than by the procedures specified in this chapter.

¶17    The Defendants moved the District Court for summary judgment on Arthur’s causes

of action alleging failure to provide a safe place to work, negligent retention, negligent

supervision, intentional infliction of emotional distress and negligent infliction of emotional

distress, asserting that these actions were barred by § 49-2-509(7), MCA. They argued that

these causes of action were simply restatements of her sexual discrimination claim under the

MHRA because each was based on and arose out of Kennedy’s conduct of sexually

harassing Arthur during the course of their employment at the Pollard. The District Court

agreed, concluding that “Arthur’s various tort claims constitute a re-characterization of the

sexual harassment claim and are subject to the exclusivity provision of the MHRA.” Arthur

asserts the District Court’s conclusion is erroneous.

¶18    Section 49-2-509(7), MCA, provides that the MHRA is the exclusive remedy for

claims of sexual discrimination in employment. It bars a plaintiff from pursuing other tort

claims where those claims arise from underlying allegations of sexual discrimination or

harassment. See, e.g., Harrison, 244 Mont. at 223, 797 P.2d at 205; Bruner v. Yellowstone

County (1995), 272 Mont. 261, 267, 900 P.2d 901, 905; Fandrich v. Capital Ford Lincoln

Mercury (1995), 272 Mont. 425, 431, 901 P.2d 112, 115. Arthur does not dispute our

holdings in these cases. She asserts, however, that Kennedy’s actions went beyond mere

sexual harassment, escalating to criminal conduct such as sexual assault, stalking and

intimidation, and that she suffered injuries and damages of a greater degree than those



                                              8
typically stemming from workplace sexual harassment. Thus, she contends her tort causes

of action are not barred by § 49-2-509(7), MCA, because they are based on conduct that is

different-in-kind and distinct from sexually discriminatory conduct.

¶19    Arthur relies on Brock v. United States (9th Cir. 1995), 64 F.3d 1421, in support of her

argument that conduct which goes beyond mere sexual harassment can form the basis of tort

claims independent from, and not preempted by, statutory remedies such as the MHRA. She

further asserts that we recognized, and implicitly approved, the Brock rationale in this regard

in Beaver v. DNRC, 2003 MT 287, 318 Mont. 35, 78 P.3d 857, and, therefore, should apply

Brock in the present case to determine that her tort claims are not barred. The Defendants

respond that this Court has never adopted the Brock rationale and should not do so under the

facts of this case.

¶20    In Brock, the plaintiff brought a negligence action against her employer pursuant to

the Federal Tort Claims Act, 28 U.S.C. § 1346(b), §§ 2671 et seq. (FTCA), based on

allegations that her supervisor sexually harassed her by his conduct toward her, which

included numerous sexual comments, repeated sexual assaults and rape. The employer

moved to dismiss the action, arguing inter alia that the plaintiff’s claims were based on

sexual discrimination and, as a federal employee, her exclusive remedy for claims of sexual

discrimination was pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e

et seq. (Title VII). The United States District Court for the Eastern District of Washington

agreed that the plaintiff’s FTCA claim was precluded by Title VII and dismissed the action.

The plaintiff appealed. Brock, 64 F.3d at 1422.


                                              9
¶21    The Ninth Circuit Court of Appeals reversed the district court’s dismissal of the

plaintiff’s FTCA claims which were based on her supervisor’s conduct. In doing so, the

court first observed that the alleged conduct underlying the plaintiff’s claims constituted

sexual discrimination, for which Title VII provides the exclusive remedy. Brock, 64 F.3d

at 1422-23. However, the court also acknowledged prior Ninth Circuit case law which held

that Title VII is not the exclusive remedy for federal employees who suffer “highly personal”

wrongs which constitute more than mere sexual discrimination. Brock, 64 F.3d at 1423

(citations omitted). The court then concluded that the harm inflicted on the plaintiff--

namely, repeated sexual assaults and rape--constituted highly personal violations which went

beyond sexual discrimination and, consequently, the plaintiff’s claims under the FTCA were

not precluded by Title VII. Brock, 64 F.3d at 1424.

¶22    At the outset, we observe that Arthur’s suggestion that we recognized and approved

the Brock rationale in Beaver for application to the MHRA’s exclusive remedy provision is

incorrect. The plaintiff in Beaver filed a complaint, which included a Title VII claim, against

her employer and her supervisor in district court based on her allegation that her supervisor’s

act of sexually assaulting her constituted sexual discrimination by creating a hostile work

environment. Beaver, ¶¶ 23 and 25. The district court ruled in favor of the defendants on

the Title VII sexual discrimination claim, concluding the plaintiff failed to prove that the

single incident of sexual harassment was sufficient to create a hostile working environment.

Beaver, ¶ 25.




                                              10
¶23    On appeal, the plaintiff argued that, pursuant to federal case law, the district court’s

conclusion was erroneous because even a single incident of sexual assault can alter the

victim’s conditions of employment and create a hostile working environment as contemplated

by Title VII. Beaver, ¶ 33. In addressing her argument, we discussed the factual and legal

aspects of the federal cases she relied on, including Brock, and concluded they did not

support her position with regard to the Title VII claim. See Beaver, ¶¶ 34-48.

¶24    Beaver is readily distinguishable from the present case. No Title VII claim is at issue

here. More importantly, Beaver did not relate in any way to the issue now before us, which

is whether the MHRA precludes separate tort claims under the circumstances of this case.

¶25    Arthur asserts that Kennedy’s actions went beyond mere sexual harassment, escalating

to criminal conduct such as sexual assault, stalking and intimidation. However, the fact that

sexually harassing conduct also may constitute criminal conduct does not necessarily mean

that it is not sexual discrimination as contemplated by the MHRA. For example, the plaintiff

in Harrison alleged her employer subjected her to conduct which arguably could be deemed

sexual assault by forcibly kissing her. We concluded the conduct amounted to sexual

harassment for which the exclusive remedy was the MHRA. Harrison, 244 Mont. at 223,

797 P.2d at 205.     We further stated that sexual harassment giving rise to a sexual

discrimination action can consist of unwelcome sexual advances, requests for sexual favors

or other verbal or physical conduct of a sexual nature. Harrison, 244 Mont. at 221, 797 P.2d

at 203 (citing 29 C.F.R. § 1604.11(a)). Here, Arthur’s allegations that Kennedy made

inappropriate personal comments, followed her about the dining room while she worked,


                                              11
“cornered” her in the office and slapped her on the buttocks once, if taken as true, clearly

establish “verbal or physical conduct of a sexual nature” which constitutes sexual

harassment.

¶26    Moreover, much of the conduct she alleges in support of her assertion that Kennedy’s

conduct was criminal in nature occurred after her employment with the Pollard ended. This

includes Kennedy’s appearing outside her home, driving by her home at night and following

her around town while she attended to personal and work-related activities, as well as being

arrested for violating several restraining orders she obtained after she left the Pollard’s

employ. We conclude Arthur has failed to establish that Kennedy’s conduct during their

employment with the Pollard went beyond mere sexual harassment.

¶27    As a result, pursuant to § 49-2-509(7), MCA, and our holdings in Harrison, Bruner

and Fandrich, the MHRA is the exclusive remedy for claims of sexual discrimination in

employment and precludes other tort claims which arise from underlying allegations of

sexual discrimination or harassment. Furthermore, we conclude that the District Court did

not err in concluding that Arthur’s various tort claims are a re-characterization of her sexual

harassment claim and are subject to the exclusivity provision of the MHRA. We hold,

therefore, that the District Court did not err in granting summary judgment to the Defendants

on Arthur’s five tort claims based on its determination that the claims were precluded by §

49-2-509(7), MCA.

¶28 2. Did the District Court err in granting summary judgment to the Defendants on
Arthur’s sixth claim based on its determination that the claim was barred by the applicable
statute of limitations?


                                              12
¶29    In their motion for summary judgment, the Defendants argued that Arthur’s sexual

harassment claim under the MHRA is barred by the 90-day statute of limitations set forth in

§ 49-2-509(5), MCA, because she did not file her complaint in the District Court until

approximately two years after service of the MHRC’s notice of dismissal. Conceding that

her complaint was not filed within the 90-day period, Arthur asserted that the statute of

limitations should be tolled under the doctrines of equitable estoppel and equitable tolling.

The District Court concluded that neither doctrine applied under the facts of the case and,

consequently, dismissed Arthur’s sexual harassment claim as time-barred. Arthur asserts

error. We address her arguments regarding equitable estoppel and equitable tolling in turn.

                                   a. Equitable Estoppel

¶30    The doctrine of equitable estoppel operates to prevent a party from unconscionably

taking advantage of a wrong while asserting a strict legal right. Selley v. Liberty Northwest

Ins. Corp., 2000 MT 76, ¶ 11, 299 Mont. 127, ¶ 11, 998 P.2d 156, ¶ 11. Generally, “estoppel

arises when a party through its acts, conduct, or acquiescence, has caused another party in

good faith to change its position for the worse.” Selley, ¶ 9. A party asserting equitable

estoppel has the affirmative duty to establish the following six elements by clear and

convincing evidence:

       (1) the existence of conduct, acts, language, or silence amounting to a
       representation or concealment of material facts; (2) the party estopped must
       have knowledge of these facts at the time of the representation or concealment,
       or the circumstances must be such that knowledge is necessarily imputed to
       that party; (3) the truth concerning these facts must be unknown to the other
       party at the time it was acted upon; (4) the conduct must be done with the


                                             13
       intention or expectation that it will be acted upon by the other party, or have
       occurred under circumstances showing it to be both natural and probable that
       it will be acted upon; (5) the conduct must be relied upon by the other party
       and lead that party to act; and (6) the other party must in fact act upon the
       conduct in such a manner as to change its position for the worse.

Selley, ¶ 10 (citations omitted). Equitable estoppel is not favored. Bruner, 272 Mont. at

268, 900 P.2d at 905. The failure to establish even one of the six elements of equitable

estoppel dooms the claim. City of Whitefish v. Troy Town Pump, Inc., 2001 MT 58, ¶ 20,

304 Mont. 346, ¶ 20, 21 P.3d 1026, ¶ 20.

¶31    In support of her equitable estoppel argument, Arthur contended that Knight

concealed or misrepresented material facts when he informed both her and the MHRC that,

prior to the fall of 1998, he had no knowledge of her complaints regarding Kennedy and that

no documentation of her harassment complaints--including documentation of Arthur’s

meeting with Pollard management in April of 1998--existed in the Pollard’s files. Arthur

also contends that Knight made the alleged misrepresentations of fact with the intent that she

rely upon them, and she did rely on the misrepresentations to her detriment when she

concluded there was no use in pursuing her sexual harassment complaint either with the

MHRC or in District Court.

¶32    Recognizing that all six elements of equitable estoppel must be established, the

District Court focused on the third element and determined Arthur failed to establish she did

not know the truth regarding the facts Knight allegedly misrepresented. The court concluded

that Arthur, as the alleged victim, had personal knowledge of Kennedy’s conduct and “was

always in a position to know the essential facts independent of either Knight or other Pollard


                                             14
Hotel employees.” Arthur asserts the District Court erred in disposing of her equitable

estoppel argument on summary judgment and also erred in determining she had not

established the third element of equitable estoppel.

¶33    Arthur first argues that whether circumstances warrant application of equitable

estoppel is a factual question for determination by the trier of fact and, therefore, is not

subject to summary judgment. However, even where issues involve factual questions

ordinarily not susceptible to summary judgment, if the party moving for summary judgment

meets its burden of establishing the absence of material fact, the burden shifts to the

nonmoving party to establish otherwise. Henricksen v. State, 2004 MT 20, ¶ 19, 319 Mont.

307, ¶ 19, 84 P.3d 38, ¶ 19 (citation omitted). In the present case, the District Court

determined--as a matter of law--that Arthur failed to carry her burden. Questions of fact may

be determined as a matter of law where reasonable minds cannot differ. Henricksen, ¶ 19.

For these reasons, we decline to conclude that equitable estoppel cannot be considered

during summary judgment proceedings.

¶34    Arthur also argues that the District Court erred in concluding she had not established

that the truth regarding Knight’s alleged misrepresentations was unknown to her. Arthur

contends Knight misrepresented his knowledge of her complaints by stating that he was not

aware of them prior to October of 1998. She further contends that she relied on Knight’s

misrepresentation in that “[s]he abandoned [the MHRC] complaint because Mr. Knight

mislead both her and the MHRC into believing that the Pollard had no . . . knowledge of Mr.

Kennedy’s misconduct and, therefore, she could not establish her claim . . . .” However,


                                             15
Arthur has not established that the truth regarding Knight’s alleged misrepresentation of his

and the Pollard’s knowledge of her complaints was unknown to her at the time she

discontinued pursuit of her sexual discrimination claim.

¶35    Under the third element of the equitable estoppel test, the party asserting estoppel

must lack knowledge of the truth regarding the alleged misrepresented fact. Elk Park Ranch,

Inc. v. Park County (1997), 282 Mont. 154, 166, 935 P.2d 1131, 1138. Here, Arthur knew

that Pollard’s management staff had knowledge of her complaints about Kennedy because

she personally informed various of the management staff of the harassing incidents both at

the April of 1998 meeting and at other times during her employ with the Pollard.

Furthermore, as the alleged victim of the sexual harassment, Arthur had personal knowledge

of Kennedy’s conduct and the response--or lack thereof--by the Pollard’s management staff

to her complaints. Thus, Arthur always had knowledge of, and could testify to, the facts

essential to her sexual discrimination claim independent from Knight and the Pollard’s

management staff. Indeed, her initial written complaint with the MHRC detailed her

knowledge of these facts.

¶36    Arthur also asserts that Knight misrepresented his personal knowledge of her

complaints about Kennedy’s conduct. We have held that, as to the third element of the

equitable estoppel test, the party asserting estoppel not only must lack actual knowledge of

the truth, but also lack a readily available means of knowledge as to the truth. Elk Park, 282

Mont. at 166, 935 P.2d at 1138. Here, Scott Pirraglio (Pirraglio), one of the Pollard’s

management staff involved in the April of 1998 meeting, testified in his deposition that he


                                             16
informed Knight of Arthur’s harassment complaints regarding Kennedy immediately

following the meeting. Had Arthur contacted Pirraglio during the course of the MHRC

proceedings, she could have obtained this information from him. Thus, Arthur has failed to

establish that she had no knowledge--or lacked a readily available means of obtaining

knowledge--of the truth regarding Knight’s statement.

¶37    With regard to Knight’s statement that the Pollard’s files contained no documentation

of Arthur’s complaints about Kennedy--namely, documentation of the meeting between

Arthur and the Pollard’s management staff in April of 1998--the record establishes that

Arthur was present at that meeting, knew that notes were taken during the meeting and was

told by the management that the notes would be placed in the Pollard’s files. Thus, Arthur

had knowledge that documentation of her complaints existed at least during the meeting. In

any event, whether the Pollard had documentation of Arthur’s complaints is not particularly

material to her claim.

¶38    Finally, it is difficult to accept Arthur’s arguments that the Defendants should be

equitably estopped from asserting a statute of limitations defense--based on Knight’s alleged

misrepresentations in his response to her MHRC complaint--in light of the fact that she had

no additional or new information in these regards when she subsequently pursued her sexual

harassment claim in the District Court.       Equitable estoppel requires that there be a

misrepresentation of fact and that the party asserting estoppel be unaware of the truth

concerning the fact at the time he or she acts in reliance thereon. See Selley, ¶ 10. The

corollary to this is that the party acting in reliance on the misrepresented fact at some point


                                              17
discovers the truth in order to subsequently assert the doctrine. Arthur does not contend that,

at some point between the time she discontinued pursuit of her MHRC complaint and the

time she filed her District Court complaint, she learned Knight’s response to the MHRC

regarding his knowledge of her complaints was untruthful. Nor does she contend that,

contrary to Knight’s assertion, documentation of her complaints to the Pollard’s management

staff actually exists.

¶39    We conclude, based on the above discussion, that the District Court did not err in

determining Arthur failed to establish the third element of equitable estoppel.

                                     b. Equitable Tolling

¶40    Under Montana law, the doctrine of equitable tolling provides that

       the statute of limitations may be tolled when a party reasonably and in good
       faith pursues one of several possible legal remedies and the claimant meets
       three criteria: “(1) timely notice to the defendant within the applicable statute
       of limitations in filing the first claim; (2) lack of prejudice to [sic] defendant
       in gathering evidence to defend against the second claim; and (3) good faith
       and reasonable conduct by the plaintiff in filing the second claim.”

Harrison, 244 Mont. at 228, 797 P.2d at 208 (quoting Erickson v. Croft (1988), 233 Mont.

146, 150-51, 760 P.2d 706, 708); see also Hash v. U.S. West Communications Services

(1994), 268 Mont. 326, 332, 886 P.2d 442, 446. In Hash, we held that equitable tolling was

not applicable in a discrimination case because the claimant did not have more than one legal

remedy available, any one of which could be pursued in good faith. Rather, the claimant’s

exclusive legal remedy was under the MHRA. Hash, 268 Mont. at 332-33, 886 P.2d at 446.

Similarly, Arthur’s exclusive remedy for her sexual discrimination case was pursuant to the



                                              18
MHRA. Arthur did not have a second legal remedy which she could have--or did--pursue

in good faith.

¶41    Arthur asserts, however, that federal courts have applied a broader interpretation of

the equitable tolling doctrine in the context of employment discrimination cases and urges

this Court to adopt and apply the federal interpretation in this case. Under that federal

interpretation, as posited by Arthur, where a “plaintiff because of disability, irremediable

lack of information, or other circumstances beyond his control just cannot reasonably be

expected to sue in time, the statute of limitations will be tolled until he is able through the

exercise of proper diligence to file his suit.” Miller v. Runyon (7th Cir. 1996), 77 F.3d 189,

191. Equitable tolling “permits a plaintiff to avoid the bar of the statute of limitations if

despite all due diligence he is unable to obtain vital information bearing on the existence of

his claim.” Cada v. Baxter Healthcare, Corp. (7th Cir. 1990), 920 F.2d 446, 451. Arthur

contends that equitable tolling, as defined by the federal courts, is applicable here because

she had an irremediable lack of information as a result of Knight’s concealment of the

documentation--and his knowledge--of her harassment complaints.

¶42    We need not discuss or determine whether to adopt the Miller/Cada interpretations

of equitable tolling here, because Arthur clearly does not come within the terms of those

interpretations. Arthur was aware she had a sexual discrimination claim against the Pollard

as evidenced by her initiating the administrative process via filing a MHRC complaint.

Moreover, as the victim of the alleged sexual harassment, she had knowledge of the vital

facts underlying her claim, including the acts constituting the harassment, her complaints to


                                              19
the Pollard’s management and management’s failure to adequately address and resolve her

complaints.

¶43   We hold that the District Court did not err in granting summary judgment to the

Defendants on Arthur’s sexual harassment claim based on its determination that the claim

was barred by the statute of limitations set forth in § 49-2-509(5), MCA.

¶44   Affirmed.


                                                       /S/ KARLA M. GRAY


We concur:

/S/ PATRICIA O. COTTER
/S/ W. WILLIAM LEAPHART
/S/ JIM REGNIER
/S/ JIM RICE




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