                                                                                           June 10 2015
                                          DA 14-0552

              IN THE SUPREME COURT OF THE STATE OF MONTANA                               Case Number: DA 14-0552



                                          2015 MT 158



MONIQUE LAY,

               Plaintiff and Appellant,

         v.

STATE OF MONTANA DEPARTMENT OF
MILITARY AFFAIRS, DISASTER AND
EMERGENCY SERVICES DIVISION,
JOHN WALSH, ERV KENT, ED TINSLEY,
PAUL GRIMSTAD, and JESSICA DAVIES,

               Defendants and Appellees.


APPEAL FROM:           District Court of the First Judicial District,
                       In and For the County of Lewis and Clark, Cause No. DDV 2013-20
                       Honorable James P. Reynolds, Presiding Judge

COUNSEL OF RECORD:

                For Appellant:

                       Palmer A. Hoovestal, Hoovestal Law Firm, PLLC, Helena, Montana

                For Appellees:

                       Trevor L. Uffelman, Uffelman Law, PC, Helena, Montana

                       Curt Drake, Drake Law Firm, P.C., Helena, Montana



                                                  Submitted on Briefs: April 15, 2015
                                                             Decided: June 10, 2015


Filed:

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

¶1        Monique Lay (Lay) appeals from the order entered by the First Judicial District

Court, Lewis and Clark County, granting summary judgment in favor of the State of

Montana Department of Military Affairs, Disaster and Emergency Services Division,

John Walsh, Erv Kent, Ed Tinsley, Paul Grimstad, and Jessica Davies (collectively, the

Defendants) on Lay’s claims alleging various torts. Lay appeals the District Court’s

conclusion that her claims were time-barred under the Montana Human Rights Act. We

affirm.

¶2        We address the following issue on appeal:

¶3     Did the District Court err by concluding that Lay’s claims were time-barred as a
matter of law under the Montana Human Rights Act?

                    FACTUAL AND PROCEDURAL BACKGROUND

¶4        On January 11, 2012, Lay’s position as public information officer for the

Emergency Services Division (Division) of the State of Montana Department of Military

Affairs was eliminated during implementation of the Division’s reduction-in-force (RIF)

policy. After elimination of her position, Lay filed a grievance with the Department of

Labor and Industry Hearings Bureau (Bureau) in accordance with the State of Montana’s

grievance procedure.

¶5        Lay alleged the Division terminated her in retaliation for her complaint that sexual

favoritism1 had occurred within the Division.               Specifically, Lay contended she was

discharged because she had complained that another Division employee, Jessica Davies,

1
  Sexual favoritism is defined generally to denote the situation where “a supervisor grants benefits and/or
promotions to an employee with whom he or she is having a sexual and/or romantic relationship, and in
turn denies these benefits and/or promotions to qualified third-party employees.” Mary Kate Sheridan,
Article, Just Because It’s Sex Doesn’t Mean It’s Because of Sex: The Need for New Legislation to Target
Sexual Favoritism, 40 Colum. J.L. & Soc. Probs. 379, 383 (2007).

                                                2
received favorable treatment for engaging in a sexual relationship with Division

supervisor, Paul Grimstad. On March 21, 2012, the Bureau conducted a hearing on Lay’s

claims and thereafter dismissed Lay’s complaint, concluding that the Division terminated

Lay solely for business reasons related to the RIF. The Bureau informed Lay she could

appeal to district court. However, Lay chose not to appeal.

¶6    Instead, Lay filed a discrimination complaint with the Montana Human Rights

Bureau of the Department of Labor and Industry (Department) in which she restated her

allegations of sexual favoritism and retaliation. A Department officer conducted an

investigation into Lay’s complaint, and on August 13, 2012, the Department issued a

decision order concluding that Lay’s allegations were not supported by a preponderance

of the evidence.    In its written decision dismissing the complaint, the Department

informed Lay that, if she wished to pursue her claim in district court, she had 90 days

under the Montana Human Rights Act to commence a civil action. Lay did not do so.

¶7    On January 9, 2013, Lay filed the present action in the First Judicial District

Court. Lay’s complaint alleged causes of action titled as follows: “Count 1: Conspiracy

to Violate Constitutional Rights”; “Count 2: State Constitutional Rights Deprivation”;

“Count 3: Monell Claim”; “Count 4: Wrongful Discharge”; and “Count 5: Attorneys

Fees.” After both parties moved for summary judgment, the District Court granted

summary judgment in favor of the Defendants, concluding Lay’s claims were time-barred

as a matter of law under the Montana Human Rights Act. The court reasoned the

Montana Human Rights Act provided the exclusive remedy for Lay’s claims because,

while Lay had attempted to re-characterize her claims within her complaint, the

gravamen of her claims remained sexual favoritism and retaliation. The court determined


                                        3
that Lay was required to pursue these claims under the procedures provided in the

Montana Human Rights Act, including the requirement that a party file a complaint in

district court within 90 days of the Department’s decision.

¶8     Lay appeals.

                               STANDARD OF REVIEW

¶9     We review orders of summary judgment de novo, applying the same criteria used

by the district court pursuant to M. R. Civ. P. 56. LaTray v. City of Havre, 2000 MT 119,

¶ 14, 299 Mont. 449, 999 P.2d 1010. Summary judgment is only appropriate when “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 that the movant is entitled to

judgment as a matter of law.” M. R. Civ. P. 56(c).

¶10    The party seeking summary judgment bears the initial burden of establishing an

absence of genuine issues of material fact. LaTray, ¶ 14. If the moving party satisfies

this initial burden, then the burden shifts to the non-moving party to set forth specific

facts, not merely denials, speculation, or conclusory statements, in order to establish that

a genuine issue of material fact does indeed exist. LaTray, ¶ 14.

                                      DISCUSSION

¶11 Did the District Court err by concluding that Lay’s claims were time-barred as a
matter of law under the Montana Human Rights Act?

¶12    The Montana Human Rights Act (MHRA), codified in Title 49 of the Montana

Code, protects the right of an employee to “hold employment without discrimination.”

Section 49-1-102(1), MCA. The MHRA declares that it is an “unlawful discriminatory

practice” for an employer “to discriminate against a person in compensation or in a term,



                                         4
condition, or privilege of employment because of . . . sex when the reasonable demands

of the position do not require” such a distinction. Section 49-2-303(1), MCA. The

MHRA further prohibits any governmental entity from discharging or “otherwise

discriminat[ing] against an individual because the individual has opposed” unlawful

discrimination. Section 49-2-301, MCA. If an employee complains of “acts constituting

an alleged violation” of the MHRA, the MHRA provides the “exclusive remedy,” and the

employee must seek redress in conformance with the procedures set forth in the MHRA.

Section 49-2-512(1), MCA. The MHRA is explicit that 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 [the MHRA].” Section 49-2-512(1), MCA. If the charging

party’s complaint is dismissed by the Department, the party is permitted to “commence a

civil action for appropriate relief on the merits of the case in the district court in the

district in which the alleged violation occurred.” Section 49-2-512(3), MCA. However,

if “the charging party fails to commence a civil action within 90 days after the dismissal

has been issued, the claim is barred.” Section 49-2-512(3), MCA.

¶13   Lay argues that, despite her failure to commence a civil action in district court

within 90 days following the Department’s decision, her claims are not time-barred

because the MHRA is inapplicable to her claims. Lay contends her claims are not based

on allegations of discrimination or retaliation in employment. Lay argues that “the heart”

of her complaint is a violation of constitutional due process of law. She asserts the

Division violated her right to due process when it failed “to consider her skills,

qualifications, experience, performance, and length of continuous service” prior to her

termination, as required under the RIF policy.


                                         5
¶14    The Division counters the “core of [Lay’s] case is an allegation that she was

retaliated against for objecting to the opportunities afforded to a colleague in exchange

for sex,” and that “such a claim ‘may not be entertained by a district court’ without

following the procedures” outlined in the Montana Human Rights Act. The Division

argues “the law is clear that [Lay] had an avenue for pursuing her claim, and cannot now

file a lawsuit under different legal theories to circumvent those provided procedures.”

¶15    This Court is no stranger to attempts to characterize a claim in such a way so as to

avoid the exclusive procedures set forth in the MHRA.2 See Edwards v. Cascade Cnty

Sheriff’s Dep’t, 2009 MT 451, 354 Mont. 307, 223 P.3d 893; Vettel-Becker v. Deaconess

Med. Ctr. of Billings, Inc., 2008 MT 51, 341 Mont. 435, 177 P.3d 1034; Saucier v.

McDonald’s Rests. of Mont., Inc., 2008 MT 63, 342 Mont. 29, 179 P.3d 481; Arthur v.

Pierre Ltd., 2004 MT 303, 323 Mont. 453, 100 P.3d 987; Shields v. Helena Sch. Dist.

No. 1, 284 Mont. 138, 943 P.2d 999 (1997); Bruner v. Yellowstone Cnty, 272 Mont. 261,

900 P.2d 901 (1995); Fandrich v. Capital Ford Lincoln Mercury, 272 Mont. 425, 901

P.2d 112 (1995); Harrison v. Chance, 244 Mont. 215, 797 P.2d 200 (1990).                     In

determining whether the MHRA is applicable, we look to the gravamen of the party’s

complaint, as opposed to the party’s characterization of her claims. Saucier, ¶ 56. We

have recognized that “litigants can frequently employ tort terminology to improperly

re-characterize” what is at the heart of their complaint, Saucier, ¶ 56 (citing Harrison,

244 Mont. at 223, 797 P.2d at 205; Arthur, ¶¶ 25-27), and that permitting a party to

bypass the MHRA’s procedures in so doing “would be to eviscerate the mandate” of the


2
  This has become less frequent since the Legislature’s revision of the MHRA in 2007. See
Griffith v. Butte Sch. Dist. No. 1, 2010 MT 246, 358 Mont. 193, 244 P.3d 321 (discussing effects
of the 2007 revisions to the MHRA).

                                           6
MHRA, requiring that it provide the exclusive remedy for acts constituting violations

thereof. Harrison, 244 Mont. at 223, 797 P.2d at 205. Thus, we undertake a gravamen

analysis in which we focus on the “nature of the alleged conduct.” Saucier, ¶ 57.

¶16    At the outset, we note that the parties do not contest the District Court’s

determination that sexual favoritism is unlawful sex discrimination. As noted above,

while retaliation is prohibited by the MHRA, the retaliation must be in response to

unlawful discrimination in order to necessitate the applicability of the MHRA procedures.

Section 49-2-301, MCA. Given the posture of this case, we assume, without deciding,

that sexual favoritism is unlawful discrimination based on sex. It is well established that

it is “not this Court’s obligation to locate authorities or formulate arguments for a party in

support of positions taken on appeal.” Cutler v. Jim Gilman Excavating, Inc., 2003 MT

314, ¶ 22, 318 Mont. 255, 80 P.3d 1203 (citing In re B.P., 2001 MT 219, ¶ 41, 306 Mont.

430, 35 P.3d 291). We recognize the issue of whether, and in what circumstances, sexual

favoritism may constitute sex-based discrimination has divided federal and state courts,

contributing to much scholarly debate. See Meghan E. Bass, Note, Dangerous Liaisons:

Paramour No More, 41 Val. U.L. Rev. 303, 324 (2006) (describing the issue as an

“expansive judicial battleground”); Susan J. Best, Comment, Sexual Favoritism: A Cause

of Action Under a ‘Sex-Plus’ Theory, 30 N. Ill. U.L. Rev. 211, 224 (2009) (discussing the

“split among the federal circuits on whether widespread sexual favoritism is a cause of

action under the hostile work environment theory of sexual harassment”); Paige I.

Bernick, Article, You’re Sending the Wrong Message: Sexual Favoritism and the

Workplace, 7-1 Tenn. J. L. & Pol’y 141, 145 (2011) (discussing the “divergent views on

sexual favoritism”).


                                          7
¶17   On that assumption, we conclude that Lay’s claims are subject to the MHRA. The

gravamen of the complaint is the factual allegation that Lay’s employment was

terminated because she objected to Davies receiving favorable treatment for engaging in

a sexual relationship with Grimstad. Although Lay couches her claims in terms of the

RIF policy, her complaint is premised entirely on an allegation of sexual favoritism and

her employer’s retaliation for her objection to the practice. Lay admits as much in the

complaint, stating she “was discriminated and retaliated against solely because she

objected to Grimstad’s improper relationship with Davies and the overt favoritism that

was being showed to Davies by Grimstad.” (Emphasis added.) Lay’s allegations of

discrimination and retaliation are repeated throughout her complaint, which provides:

(1) the “Defendants unlawfully discriminated and retaliated against Lay by laying her

off” after she “complained about favoritism that Grimstad was affording to Davies in

exchange for sex”; (2) Lay’s employment was “taken in retaliation for Lay’s complaint

about the favoritism that Grimstad was providing to Davies in exchange for sexual

favors, and Lay’s testimony in the ensuing investigation”; and (3) the Defendants

“deliberately and intentionally eliminated Lay’s position under the pretext of a

reorganization and reduction-in-force with the specific purpose of forcing Lay” out of the

Division “in retaliation for [her] complaints about the favoritism.” Lay’s allegations of

sexual favoritism and retaliation are, in fact, the only allegations contained in the

complaint. If these allegations were removed from the complaint, Lay would have no

actionable claim of any kind. Because the gravamen of the complaint is an allegation that

the Division terminated Lay in retaliation for her objection to sexual favoritism in




                                        8
employment, the District Court did not err by holding that Lay’s claims were subject to

the procedures set forth in the MHRA, and as a result were time-barred.

¶18    We affirm the District Court’s entry of summary judgment in favor of the

Defendants.3



                                                     /S/ JIM RICE

We concur:

/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ PATRICIA COTTER
/S/ LAURIE McKINNON




3
  The District Court also determined that Lay could not recover separately under the Montana
Wrongful Discharge From Employment Act, § 39-2-901, MCA, et seq. Lay makes a passing
reference to the court’s determination in a single sentence, stating: “Nowhere in the causes of
action alleged under Dorwart, Monell, or the Wrongful Discharge Act is there any kind of
requirement that Lay go through the procedures identified in the Human Rights Act, or which
provide that § 49-2-512, MCA constitutes the ‘exclusive remedy’ for the civil rights violations
visited upon her as complained in this case.” As we explained above, it is not this Court’s
obligation to develop arguments for a party on appeal. Cutler, ¶ 22. Nonetheless, with respect to
the Montana Wrongful Discharge From Employment Act, we have previously concluded that if
the plaintiff’s claim is properly subject to the MHRA, the plaintiff cannot currently file under the
Montana Wrongful Discharge From Employment Act. See Fandrich v. Capital Ford Lincoln
Mercury, 272 Mont. 425, 432, 901 P.2d 112, 116 (1995) (where the plaintiff was “barred from
bringing his claim pursuant to the Montana Wrongful Discharge From Employment Act because
the Human Rights Act provide[d] his exclusive remedy”).

                                             9
