 No




                                                                 No. 99-095

                            IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                               1999 MT 301

                                                              297 Mont. 156

                                                                991 P.2d 955



STEPHANI A. SKITES,

Plaintiff and Appellant,

v.

BLUE CROSS BLUE SHIELD OF MONTANA

a Montana corporation,

Defendant and Respondent.




                                                           APPEAL FROM: District Court of the Eighth Judicial
                                                           District,

In and for the County of Cascade,

The Honorable Marge Johnson, Judge presiding.




COUNSEL OF RECORD:

For Appellant:

 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-095_(12-07-99)_Opinion.htm (1 of 9)4/10/2007 10:05:07 AM
 No



Jeff R. Lynch; Lynch Law Firm, Great Falls, Montana

For Respondent:

Stuart L. Kellner; Hughes, Kellner, Sullivan & Alke,

Helena, Montana



Submitted on Briefs: September 2, 1999

Decided: December 7, 1999

Filed:




__________________________________________

Clerk

Justice Karla M. Gray delivered the Opinion of the Court.



      1. ¶ Stephani A. Skites (Skites) appeals from the judgment entered by the Eighth
         Judicial District Court, Cascade County, on its Memorandum and Order granting the
         summary judgment motion filed by Blue Cross Blue Shield of Montana (Blue
         Cross). We affirm.
      2. ¶ The sole issue on appeal is whether the District Court erred in granting summary
         judgment to Blue Cross.

                                                                BACKGROUND

      3. ¶ On November 26, 1996, Skites filed a complaint with the Montana Human Rights
         Commission (MHRC) alleging discrimination in employment by Blue Cross, her
         employer, under both the Montana Human Rights Act and the Americans with

 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-095_(12-07-99)_Opinion.htm (2 of 9)4/10/2007 10:05:07 AM
No


        Disabilities Act. According to the complaint, Blue Cross discriminated against
        Skites on the basis of a physical disability, namely, right wrist DeQuervain's
        tenosynovitis. She alleged that Blue Cross first failed to accommodate her disability
        on January 2, 1996, and that "[t]he date the most recent or continuing discrimination
        took place was April 15, 1996."
     4. ¶ The MHRC issued a Notice of Dismissal and Notice of Right to Sue, determining
        that it lacked jurisdiction over Skites' complaint because she had not filed the
        complaint "within 180 days of the alleged discriminatory act as required by statute."
        The Notice set forth Skites' right to object to issuance of the Notice and the manner
        in which any objection would be processed by the MHRC. The Notice also advised
        that Skites could pursue her discrimination complaint by petitioning for appropriate
        relief in the district court within 90 days of receipt of the Notice. Skites received the
        Notice on December 31, 1996, and did not file any objections with the MHRC.
     5. ¶ Skites subsequently filed a complaint in the District Court alleging that Blue Cross
        discriminated against her on the basis of her disability in violation of Montana law.
        More specifically, she asserted that the alleged discrimination began no later than
        January of 1996, and continued after that date until Blue Cross constructively
        discharged her because of her disability on July 5, 1996. Blue Cross answered the
        complaint and affirmatively asserted, as its Second Defense, that Skites' MHRC
        complaint was untimely under the statutory 180-day filing requirement and,
        therefore, her complaint in the District Court also was time barred.
     6. ¶ Shortly thereafter, Blue Cross moved for summary judgment on the basis that
        Skites' MHRC complaint was statutorily time barred and, as a result, a prerequisite
        to her filing in the District Court--namely, the timely filing of her MHRC
        complaint--had not been met. Skites opposed the motion, arguing that genuine
        issues of material fact existed which precluded summary judgment and that, even in
        the absence of such issues of material fact, Blue Cross was not entitled to judgment
        as a matter of law. After a hearing on August 26, 1998, the District Court issued its
        Memorandum and Order granting Blue Cross' motion for summary judgment and
        entered judgment accordingly. Notice of entry of judgment was served and Skites
        appeals.

                                                      STANDARD OF REVIEW

     7. ¶ We review an appeal from a district court's summary judgment ruling de novo.
        Old Republic Nat. Title Ins. Co. v. Realty Title Co., 1999 MT 69, ¶ 19, 978 P.2d
        956, ¶ 19, 56 St.Rep. 286, ¶ 19 (citation omitted). In doing so, we apply the same

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-095_(12-07-99)_Opinion.htm (3 of 9)4/10/2007 10:05:07 AM
No


        Rule 56, M.R.Civ.P., criteria used by that court. If the moving party demonstrates
        that no genuine issue of material fact exists, the burden shifts to the nonmoving
        party to establish, by more than mere denial or speculation, that a genuine issue does
        exist. If the district court determines that no genuine issues of fact exist, it then must
        determine whether the moving party is entitled to judgment as a matter of law. We
        review the district court's legal conclusions to determine whether the court erred.
        Bruner v. Yellowstone County (1995), 272 Mont. 261, 264-65, 900 P.2d 901, 903
        (citations omitted).

                                                                 DISCUSSION

     8. ¶ Did the District Court err in granting summary judgment to Blue Cross?
     9. ¶ It is unlawful for a Montana employer to discriminate against a person in
     compensation or in a term, condition or privilege of employment because of
     physical disability. Section 49-2-303(1)(a), MCA (1995). At all times pertinent to
     this case, a person claiming to be aggrieved by such a discriminatory employment
     practice could file a written, verified complaint with the MHRC setting forth the
     particulars of the alleged discrimination. Section 49-2-501(1), MCA (1995). Section
     49-2-501(2)(a), MCA (1995), generally requires that the complaint be filed within
     180 days after the alleged unlawful discriminatory practice occurred or was
     discovered. Any complaint not timely filed as required by § 49-2-501(2)(a), MCA
     (1995), "may not be considered by the commission." Section 49-2-501(2)(c), MCA
     (1995).
 10. ¶ Moreover, § 49-2-509(7), MCA (1995), renders the provisions of the Montana
     Human Rights Act (Act) the exclusive remedy for acts constituting alleged
     employment discrimination under Montana law, and provides that no claim for
     relief based on such acts may be entertained by a district court other than via the
     procedures set forth in the Act. As a result, we held in Hash v. U.S. West
     Communications Services (1994), 268 Mont. 326, 333, 886 P.2d 442, 446, that
     timely filing before the MHRC is a prerequisite to filing a complaint alleging
     employment discrimination in district court.
 11. ¶ In this case, the District Court determined that the material facts relating to
     whether Skites' MHRC complaint was timely filed were undisputed in that Skites
     filed her claim with the MHRC on November 26, 1996, 225 days after April 15,
     1996, the date stated in her complaint as the date of the most recent or continuing
     act of employment discrimination by Blue Cross. On those facts, the court
     concluded that Skites' MHRC complaint was not timely filed within the 180 days

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-095_(12-07-99)_Opinion.htm (4 of 9)4/10/2007 10:05:07 AM
No


        allowed by § 49-2-501(2)(a), MCA (1995), and, as a result, Skites had not satisfied
        the Hash prerequisite to filing a discrimination complaint in the District Court,
        namely, the timely filing of a complaint with the MHRC. The court then concluded
        that Blue Cross was entitled to summary judgment as a matter of law and entered its
        order granting summary judgment accordingly.
 12.    ¶ Skites contends the District Court erred with regard to both the absence of genuine
        issues of material fact and Blue Cross' entitlement to judgment as a matter of law.
        We address her contentions in turn.
 13.    ¶ With regard to the existence of a genuine issue of material fact, Skites posits that
        the alleged date of the most recent or continuing discrimination in her complaint to
        the MHRC was "unartfully worded" and that, had it been properly worded, it would
        have stated that the discriminatory acts began on April 15, 1996, and continued
        thereafter. Indeed, she points out that her MHRC complaint alleged "[s]he was
        subsequently instructed to resign her position due to her physical disability." In
        essence, Skites contends that she should have worded--and meant to word--her
        MHRC complaint to state a later, unspecified date for the "date the most recent or
        continuing discrimination took place" and that the District Court should have
        interpreted her MHRC allegation in that fashion.
 14.    ¶ There are several problems with Skites' contention. First, Skites posits in this part
        of her argument that the alleged discrimination began on April 15, 1996. This is
        clearly inconsistent with the other time-based allegation in her MHRC complaint,
        which was that Blue Cross first failed to accommodate her disability on January 2,
        1996.
 15.    ¶ More importantly, however, to accept Skites' approach would be to prevent the
        MHRC from having the ability to determine, from the face of an MHRC complaint,
        whether the complaint was timely filed under § 49-2-501(2)(a), MCA (1995), and,
        correspondingly, whether it had jurisdiction to consider the complaint. Similarly, the
        absence of a date certain in the MHRC complaint would prevent district courts from
        being able to determine whether an MHRC complaint was timely filed and,
        therefore, whether the Hash prerequisite to filing a discrimination complaint in
        district court--namely, the timely filing of an MHRC complaint--had been met. We
        reject the notion that a date not set forth in an MHRC complaint--whatever the
        complainant's intent may have been--can create a genuine issue of material fact
        precluding summary judgment based on the statutory 180-day period of limitation
        for filing an MHRC complaint.
 16.    ¶ Skites also contends that, in her complaints to both the MHRC and the District
        Court, she "goes on to allege, in a more clear fashion, that she was constructively

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-095_(12-07-99)_Opinion.htm (5 of 9)4/10/2007 10:05:07 AM
No


        discharged from her employment on July 5, 1996," a date after April 15, 1996. It is
        true that Skites' complaint in the District Court alleged that she was constructively
        discharged by Blue Cross on July 5, 1996. It is not true, however, that the July 5,
        1996, date appears in her MHRC complaint. As discussed above, Skites' MHRC
        complaint alleges that the date the most recent or continuing discrimination took
        place was April 15, 1996, and no later date appears in her MHRC complaint. Thus,
        this contention also fails to raise a genuine issue of material fact.
 17.    ¶ Skites also attempts to create a genuine issue of fact by referring at some length to
        matters contained in Blue Cross' response to her MHRC complaint, which she
        attached as an appendix exhibit to her brief on appeal to this Court. That response,
        however, is not part of the record on appeal and, as a result, we will not consider it
        or Skites' related arguments. See Johnson v. Killingsworth (1995), 271 Mont. 1, 3,
        894 P.2d 272, 273 (citation omitted).
 18.    ¶ We conclude that no genuine issue of material fact exists with regard to either the
        date set forth in Skites' MHRC complaint as the date on which the most recent or
        continuing act of discrimination by Blue Cross took place or that the stated date is in
        excess of 180 days prior to November 26, 1996, the date on which Skites filed her
        MHRC complaint. Therefore, we hold that the District Court did not err in
        determining that no genuine issues of material fact existed which would preclude
        summary judgment for Blue Cross.
 19.    ¶ Skites argues next that, notwithstanding whether any genuine issues of fact
        existed, the District Court erred in concluding that Blue Cross was entitled to
        judgment as a matter of law via application of the 180-day limitation period in § 49-
        2-501(2)(a), MCA (1995), and the Hash rule that a timely MHRC complaint is a
        prerequisite to filing a discrimination complaint in district court. Conceding our
        determination in Hash that failure to timely file a complaint with the MHRC
        precludes filing in the District Court, Skites asserts that the present case is
        distinguishable and, therefore, Hash is not controlling. We disagree.
 20.    ¶ Skites' argument is that "[i]n Hash, the employee's complaint to the Human Rights
        Commission was actually untimely" and the employee merely sought to "bootstrap"
        her untimely claim by raising it in district court after filing an ill-fated complaint
        with the MHRC. She contends that, unlike Hash, her MHRC complaint was timely
        and was erroneously rejected by the MHRC. Skites' attempt to distinguish Hash
        ignores the facts, discussed above, that her MHRC complaint alleged the most
        recent or continuing act of discrimination as taking place on April 15, 1996, and that
        she filed her MHRC complaint on November 26, 1996, some 225 days later.
        Applying § 49-2-501(2)(a), MCA (1995), to those facts, it is clear that Skites did not

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-095_(12-07-99)_Opinion.htm (6 of 9)4/10/2007 10:05:07 AM
No


     file her MHRC complaint within the 180 days set forth in the statute and, as a result,
     that the MHRC properly determined it did not have jurisdiction over the untimely
     complaint. Under Hash, and like Hash, we conclude that Skites' failure to timely file
     with the MHRC precluded her ability to prosecute her discrimination complaint in
     the District Court.
 21. ¶ We hold that the District Court did not err in concluding that Blue Cross was
     entitled to judgment as a matter of law or in granting its motion for summary
     judgment.
 22. ¶ Affirmed.

        /S/ KARLA M. GRAY

        We concur:

        /S/ J. A. TURNAGE

        /S/ JAMES C. NELSON

        /S/ JIM REGNIER



        Justice Terry N. Trieweiler dissenting.

 23. ¶ I dissent from the majority's conclusion that the complaint Stephani A. Skites filed
     with the Montana Human Rights Commission was untimely on its face.
 24. ¶ Skites alleged that "continuing discrimination took place on April 15, 1996." She
     later explained in her complaint that "she returned to work on April 15, 1996. No
     accommodations had yet been made. She was subsequently instructed to resign her
     position due to her physical disability."
 25. ¶ Finally, Skites alleged that her employer violated the Montana Human Rights Act
     for the following reasons: "A. Accommodations for physical disability were never
     met."
 26. ¶ It is clear from reading all the allegations of Skites complaint rather than the few
     words on which the majority opinion focuses that Skites alleged that she was
     discriminated against based on a physical handicap because when she returned to
     work for her employer on April 15, 1996, her employer refused to accommodate her


file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-095_(12-07-99)_Opinion.htm (7 of 9)4/10/2007 10:05:07 AM
No


     disability and she was, therefore, forced to resign. The necessary conclusion from
     her allegations is that the discrimination continued until she was forced to resign.
     While it is true that no specific date of resignation is alleged in the complaint, that
     doesn't mean, as the majority concludes, that the last discriminatory act alleged
     occurred on April 15, 1996 and that the complaint is therefore barred based on the
     statute of limitations as a matter of law. At best, there was an issue of fact regarding
     the last discriminatory act which could have and should have been resolved by an
     evidentiary hearing or an order requiring more specific pleadings.
 27. ¶ Skites' allegation that discrimination based on disability is a continuing offense for
     purposes of determining when the statute of limitations begins to run is supported by
     federal law interpreting the federal counterpart to Montana's Human Rights Act. See
     Harmon v. Fred S. James & Co. of Colorado, Inc. (Colo. App. 1994), 899 P.2d 258,
     261.
 28. ¶ A federal district court defined the continuing violation doctrine as:

        That theory, applicable in discrimination lawsuits in which the alleged
        discriminatory action is ongoing by nature rather than a distinct or isolated event,
        tolls the running of the statute of limitations until the occurrence of the last instance
        of the allegedly discriminatory activity.

        Equal Employment Opportunity Comm'n v. Westinghouse Elec. Corp. (D.N.J.
        1986), 646 F. Supp. 555, 565. Therefore, as a matter of law, if Blue Cross
        discriminated against Skites as alleged in Skites' complaint, the discrimination
        continued until the date of her discharge and the 180-day period for filing her
        complaint with the Human Rights Commission did not begin to run until that date.
        There is no precedent for concluding that because Skites failed to allege that date in
        her complaint, the complaint is defective as a matter of law on its face. Nor is any
        authority to that effect cited by the majority.

 29. ¶ The majority opinion states in paragraph 4 that Skites was inconsistent when she
        alleged that Blue Cross first failed to accommodate her on June 2, 1996 and that its
        discrimination began again on April 15, 1996. There is nothing inconsistent,
        however, about Skites' allegations. She was off of work for a period of time prior to
        January 2, 1996 for health related reasons. When she returned to work, she alleges
        that her employer failed to accommodate her physical impairment. She was off work
        again for a period of time prior to April 15, 1996 for the same reasons. She alleged
        that once again when she returned to work on April 15 her employer refused to

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-095_(12-07-99)_Opinion.htm (8 of 9)4/10/2007 10:05:07 AM
 No


      accommodate her physical impairment. There is nothing inconsistent about those
      allegations.
  30. ¶ In paragraph 15 of its opinion the majority bemoans the fact that Skites' method of
      draftsmanship would "prevent the MHRC from having the ability to determine, from
      the face of an MHRC complaint, whether the complaint was timely filed . . . ." So
      what? There is no legal requirement that a court or agency be able to determine from
      the face of a complaint that it was timely filed. If a party objects to a complaint on
      the basis that it was untimely, the complaint can be amended or further information
      provided. That does not seem like a cumbersome or unreasonable process to me.
      Nor is any authority provided by the majority for their conclusion that every forum
      in which a complaint is filed has to be able to determine from the face of the
      complaint whether it was filed within the time period provided for by the
      appropriate statute of limitations.
  31. ¶ For these reasons, I conclude that our decision in Hash v. U.S. West
      Communications Services (1994), 268 Mont. 326, 886 P.2d 442 is distinguishable
      from this case based on its underlying facts and that the District Court erred when it
      dismissed Skites' complaint as a matter of law. Therefore, I dissent from the
      majority's conclusion which affirms the judgment of the District Court.

/S/ TERRY N. TRIEWEILER




Justice William E. Hunt, Sr., concurs in the foregoing dissent of Justice Terry N.
Trieweiler.



/S/ WILLIAM E. HUNT, SR.




 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-095_(12-07-99)_Opinion.htm (9 of 9)4/10/2007 10:05:07 AM
