No. 81-427
IN THE SUPREME COURT OF THE STATE OF MONTANA
1982
LEV1 JAMES SNELL I
Petitioner and Appellant,
MONTANA-DAKOTA UTILITIES COMPANY
and THE HUMAN RIGHTS COMMISSION
OF THE STATE OF MONTANA,
Respondents and Respondents.
Appeal from: District Court of the First Judicial District,
In and for the County of Lewis and Clark
Honorable Peter Meloy, Judge presiding.
Counsel of Record:
For Petitioner:
. d
&
James E. Terry, ~ a Missouri ~ ,
For Respondents:
Crowley, Haughey, Hanson, Toole & Dietrich, Billings,
Montana
Jack Ramirez, Billings, Montana
Frederick F. Sherwood, Helena, Montana
Submitted on briefs: January 22, 1982
Decided: April 22, 1982
Filed:
z
flpR 2 19821
Mr. Justice Fred J. Weber delivered the Opinion of the
Court.
Petitioner appeals from a judgment in the First Judicial
District Court, Lewis and Clark County, affirming the decision
of the Human Rights Commission (Commission) and dismissing
petitioner's employment discrimination action against Montana-
Dakota Utilities Company (MDU). We affirm the District
Court.
Petitioner presents the following issues for review:
(1) Did the District Court apply the proper standards
of review in affirming the findings of the hearing examiner
and the Commission?
(2) Are the findings of the hearing examiner adopted
by the Human Rights Division and affirmed by the District
Court supported by substantial evidence or are they "clearly
erroneous?"
Petitioner, a Native American, worked as a serviceman
fitter and welder for MDU in Wolf Point and Poplar, Montana,
from July of 1973 until late September of 1976, when he
resigned. He subsequently filed an employment discrimina-
tion complaint with the Commission, under section 49-2-501,
MCA, alleging that racial harassment had forced his resigna-
tion, and seeking compensation for lost wages.
Petitioner's complaint was heard on December 21, 1979,
before a hearing examiner appointed by the Commission.
Witnesses appeared for both petitioner and MDU.
Petitioner testified that his foreman, Howard Hveem,
pressured and criticized him unjustly, took tools from the
truck and blamed him, handled machines in ways that endangered
him, ignorantly criticized his welding technique, and directed
veiled racial slurs at him by making derogatory comments
about blacks, and references to Hveem's own youthful clashes
with "Assiniboines." According to petitioner, his complaints
to his superiors went unheeded until he quit his job rather
than risk a violent confrontation. At that point, Hveem was
replaced as foreman by Jack Sprague, who, upon petitioner's
return to work, made efforts to assure petitioner's satisfaction
with working conditions, and to socialize with him at work.
Petitioner claimed that within a few weeks of Hveem's replacement,
the rest of the crew "took up for" Hveem, and began to
ostracize him. He said they would bunch together in the
coffee room, exchanging derogatory jokes about Indians, and
using such words as "fucking Indian" and "blanket ass." The
jokes and comments were not obviously addressed to him, he
said, but he was only a few yards away, the only Indian in
the room. He said the coffee room door was slammed in his
face. He claimed the harassment occurred several times a
week until he resigned, although he reported it to his
foreman, Sprague. Petitioner said he was particularly
reluctant to confront his co-workers because he had twice
served time for assault, and was determined not to risk a
conflict that could result in his being imprisoned again.
He claimed the strain was beginning to undermine his
health at the time he resigned. Finally, petitioner claimed
that when he applied for unemployment compensation, he
indicated discrimination was the reason for his resignation.
He presented no evidence to corroborate that claim.
Petitioner's co-workers and supervisors -- those appearing
for petitioner as well as those appearing for MDU -- testified
without exception that they had not observed, participated
in or heard of any racially-motivated harassment of petitioner;
he had not complained to them of racial slurs by fellow
workers or discriminatory practices by the company. Their
testimony presents an uncontradicted description of petitioner
as a quiet loner, a good welder and valuable employee,
toward whom his co-workers and supervisors felt no racial
animus. Witnesses agreed that some MDU machinery moved
quickly and could be suddenly and unexpectedly dangerous.
But no one had witnessed any near miss they believed to be
directed at petitioner by Hveem, nor had petitioner filed
any "near miss report." Several men testified that petitioner
had made them aware of his unwillingness to work with Hveem
because Hveem's loud criticism made him nervous; not one
said petitioner had mentioned that Hveem showed bias against
Indians. Hveem himself agreed that he disapproved of petitioner
because of petitioner's reluctance to do "the pick and
shovel work," preferring welding. MDU supervisors testified
that, subsequent to petitioner's complaining about Hveem,
the foreman was replaced, not because of any racist behavior
on Hveem's part, but because of his health and his difficulty
handling his supervisory position. The supervisors also
indicated that MDU has an active affirmative action program
and instructs its management personnel that racial discrimination
is not to be condoned.
There was general agreement among MDU employees that
rough language and joking are common among MDU crews, and
that many jokes are told, some about such ethnic groups as
North Dakotans, blacks, Norwegians, Poles, and Indians. But
they all agreed, including an Indian crew member, and others
whose ethnic groups had been the butt of jokes, that there
was neither malice nor viciousness in the jokes, and that
the jokes were not directed at petitioner. They testified,
also, that the coffee room was airconditioned, although the
rest of the warehouse was not, and during hot weather someone
was always getting up and slamming the door shut. No one
recalled the door being deliberately slammed in petitioner's
face, as he claimed.
Several of petitioner's supervisors testified that he
or his wife had indicated dissatisfaction with his salary
precipitated his resignation, and that petitioner had never
told them he resigned because of racial harassment.
The hearing examiner, on June 25, 1980, entered extensive
findings of fact and conclusions of law, here included in
relevant part:
"PROPOSED FINDINGS OF FACT
"26. That the testimony of the foreman and
other witnesses corroborated much of the
testimony of the Charging Party relating to
the incidents of the tools; the fight with
an Indian in 1936; reprimand for throwing
away the welding rods; the near accidents;
and the yelling by the foreman; and the pre-
ponderance of evidence clearly shows that
these incidents did in fact occur.
"32. That pursuant to the complaints about
the foreman yelling at the Charging Party;
the health reasons of the foreman and the
inability of the foreman to organize his
work and employees, the Division Manager
on December I, 1975, demoted the foreman to
gas service man, assigned a new foreman,
Jack Sprague, to supervise the gas construc-
tion crew and the Charging Party and the
Charging Party returned to work.
"37. That the preponderance of the evidence
clearly reflects that jokes were told by co-
employees some of which related to Indian
people and that there was swearing by the co-
employees and that some of such swearing was
used in reference to Indian people but that
none of the jokes or swearing were directed
to the Charging Party."
"47. That the Charging Party testified that
a few weeks prior to termination he notified
the Division Manager as to his complaints in
that he did not want to work around 'Indian
haters.' However, the Hearing Examiner does
not find that testimony credible. . .and
finds the testimony of the Division Manager
and engineer more credible in that the con-
versations with the Division Manager and
engineer only related to wages.
"48. That the Charging Party left employment
due to insufficient wages."
The hearing examiner concluded that foreman Hveem's actions
"did not reflect racial animus;" that the jokes and profanity
among co-workers "did not show racial harassment directed to
the Charging Party but was conversation normally associated
with construction workers;" that petitioner did not bring
the alleged racial slurs and discriminatory treatment to
the attention of MDU management; and finally, that charging
party's resignation was due to a salary dispute, not racial
harassment.
Petitioner filed exceptions to the hearing examiner's
proposed findings of fact and conclusions of law.
On November 21, 1980, the Commission heard the exceptions,
adopted the hearing examiner's findings and conclusions, and
dismissed petitioner's complaint. Petitioner requested
judicial review in the First Judicial District Court, pursuant
to 52-4-702, MCA, and oral argument was heard on March 24,
1981. Additional briefs were filed. On June 30, 1981, the
District Court affirmed the decision of the Commission and
dismissed petitioner's complaint.
The District Court opinion emphasized that "[allthough
petitioner is seeking judicial review on grounds (a) through
( f ) of S2-4-704 MCA no contention is made except as to
subdivision (e), i.e., that the decision of the administrative
agency is 'clearly erroneous in view of the reliable, probative
and substantial evidence on the whole record' . . ." The
~istrictCourt, relying upon section 2-4-704(2), MCA, ("the
court may not substitute its judgment for that of the agency
as to the weight of the evidence on questions of fact,") and
upon similar language in Martinez v. Yellowstone County
Welfare Department (1981), Mont. , 626 P.2d 242, 38
St.Rep. 474, concluded that the commissioner's decision was
amply supported by evidence and testimony. Petitioner
appeals.
We note Martinez' reference to federal case law arising
under Title VII of the Federal Civil Rights Act of 1964, 42
U.S.C. S2000e et. seq. The Montana Human Rights Act, Title
49, MCA, is closely modeled after Title VII, and reference
to pertinent federal case law is both useful and appropriate.
See Martinez v. Yellowstone County Welfare Department,
Mont. at , 626 P.2d at 245, 38 St.Rep. at 477.
I.
Petitioner argues that the District Court applied the
wrong standard of review, i.e., that it erred by limiting
its consideration to the sufficiency of the evidence when
petitioner had also claimed error of law justifying modifi-
cation or reversal under section 2-4-704(2) (d), MCA. Petitioner
contends that it was error of law for the Commission to find
(1) "that the ethnic jokes and racial epithets petitioner
was subjected to were not racial harassment," and (2) "that
MDU cannot be held liable where petitioner did not bring
this conduct to the attention of his supervisors." We do
not agree.
The hearing examiner determined as a matter of fact
that (1) ethnic jokes and curses occurred, but they were not
directed at petitioner, and (2) several employees testified
that "no one gave it much thought." The hearing examiner
concluded that this "did not show racial harassment directed
to the Charging Party but was conversation normally associated
with construction jobs." It is obvious the hearing examiner
determined that the objectionable remarks were merely casual
conversation. Title VII cases indicate that the sensitivity
of an employee to casual remarks, isolated incidents of
harassment or an occasional racial slur is not sufficient to
support a Title VII complaint:
.
". . [Allthough a pattern of practice of
harassment directed at a single employee
can violate Title VII, casual or isolated
manifestations of a discriminatory environ-
ment. such as a few ethnic or racial slurs,
may not raise a cause of action. Caric-Ii
d
--
v. Kansas City Chiefs I?ootball --
Club Inc.,
.2d 87, 88 (8th Cir. 1977); Fekete v.
Steel Corp., 353 F.Supp. 1177, 118G
Pa. 1973); see Int'l - -of Team-
-- -
Brhd -
sters v. United States. 431 U.S. 324, 336
2d 396 (1977)." Bundy v. Jackson (D.C.Cir.
1981), 641 F.2d 934, 943 n.9 (sexual haras-
sment).
"After a painstaking review of the transcript,
we conclude that as a matter of law the racial
slurs, if any, used at Bunny Bread did not
violate Title VII. We find no steady barrage
of opprobrious racial comment. The use, if any,
of racial terms was infrequent, was limited
to casual conversation among employees, and
with possible rare exceptions was not direc-
ted toward appellants." Johnson v. Bunny
Bread Company (8th Cir. 1981), 646 F.2d 1250,
1257 (failure of proof of constructive dis-
charge).
"Some of his complaints concerning racial slurs
are probably true. On the other hand, it is
probably also true that there is nothing which
the management or leadership of a company like
Cameron can do which will totally and absolu-
tely prevent persons from all races from utter-
ing racial slurs. Some stoic and patient accep-
tance of these slurs is merely one of the prices
that all of us pay for living in a pluralistic
society." Buckner v. Cameron Iron Works (S.D.
Tex. 1979), 23 FEP cases 1092, 1102.
The hearing examiner also found as a matter of fact
that petitioner made a number of complaints, but they concerned
wages, paperwork, and dissatisfaction with his foreman,
Hveem. He concluded that petitioner did not bring alleged
incidents of racial harassment to the attention of MDU
management. He explicitly did not find credible petitioner's
claim that he did not want to work around "Indian haters,"
and had resigned because of discrimination, finding instead
that petitioner's resignation was due to insufficient wages.
Federal discrimination cases do not penalize an employer for
its ignorance of employee misconduct.
"A continuing course of harassment by fellow
employees cannot be imputed to an employer
unless the employer is aware of such harass-
ment and fails to take reasonable steps to
remedy the practice. De Grace v. Rumsfeld,
614 F.2d 796, (1st Cir. 1980)." Kidd v.
American Air Filter Co. (W.D. Ky. 1980), 23
FEP cases 381, 382.
". . .[P]laintiff must show that the employ-
er failed 'to take reasonable steps to pre-
vent racial harassment. . . ' At what point
management must be deemed to be aware of
racial harassment by employees and must take
affirmative steps to remedy the situation
is disputed. Some courts have refused to
find Title VII violations unless supervisory
personnel actually participated in the haras-
sment. . . The Court believes, however, that
the standard for a violation of Title VII
should be stricter than that of actual par-
ticipation by management and supervisory
personnel. If management knows or should
know of incidents of racial harassment that
are more than sporadic, it has a responsibili-
ty to take reasonable affirmative steps to
eliminate such incidents... (One may infer
from intensity of harassment that management
was aware or should have been aware); [cita-
tions omitted]." Equal Employment Opportun-
ity Commission v. Murphy Motor Freight (D.
Minn. 1980), 488 Fed.Supp. 381, 385-386.
In both the question of whether the jokes and swearing
constituted racial harassment and whether MDU was responsible
if the incidents were not brought to a superior's attention,
the hearing examiner's conclusions are consistent with
federal case law, and logically flow from his findings of
fact. Petitioner himself stated in his exceptions that
what he considered errors of law in the hearing examiner's
conclusions necessarily followed from erroneous findings of
fact. The District Court correctly assessed petitioner's
arguments as a challenge to the sufficiency of the evidence,
and properly limited its review to that issue.
We also note that a finding of racial harassment would
not automatically mandate a finding of constructive discharge:
"There is no clear standard for constructive
discharge in a Title VII case. In some situa-
tions where 'an employee involuntarily resigns
in order to escape intolerable and illegal
employment requirements,' a constructive dis-
charge may be found. Young v. Southwestern
Savings -- ~ssociation; 509 F.2d 140,
and Loan
144 (5th Cir. 1975). Contrary to plaintiff's
theory, however, the conclusion of construc-
tive discharge does not automatically arise
whenever employment discrimination is follow-
ed by the victim's resignation. See e.g.,
Muller v. U. S. Steel Corporation, 509 F.2d
923 (10th Fir, 1975), cert. denied, 423 U.S.
825, 96 S.Ct. 39, 46 L.Ed.2d 41 (1975);
-
culiari v. East-West Gateway Coordinating
Council, 457 F.Supp. 335 (E.D.Mo. 1978). A
determination of constructive discharge de-
pends on the totality of circumstances, and
must be supported by more than an employee's
subjective judgment that working conditions
are intolerable." Nolan v. Cleland (N.D.
Cal. 1979), 482 F.Supp. 668, 672.
It is a matter of degree, a question of fact for the
trial court, whether by encouraging, participating in or
allowing a known pervasive pattern of discrimination, against
an employee or a class of employees, the employer has rendered
working conditions so oppressive that resignation is the
only reasonable alternative. Petitioner has not challenged
the federal cases; rather, he contests the factual determina-
tions which led to their application.
Finally, petitioner argues that the hearing examiner
and the District Court failed to follow the procedure set
forth in Martinez, supra, for determining whether he had
established a prima facie case of discrimination. He maintains
that MDU would have had to show a legitimate, nondiscriminatory
reason for the apparent discrimination, once petitioner had
shown that, as a member of a racial minority he suffered
damages as a direct result of racially-based disparate
treatment, of which his employer was, or should have been,
aware. Petitioner states the standard accurately enough,
but ignores the fact that, according to the hearing examiner,
he did not make the requisite prima facie showing of discrimination.
The hearing examiner's findings indicate that petitioner
did not show that MDU was or should have been aware of
racial harassment directed at him; he did not establish that
he was treated differently from his non-minority co-workers;
he did not show the ethnic jokes were directed primarily at
Indians or at him. He did not show that Hveem's actions and
criticisms sprang from racial animus. These are factual
determinations, to be discussed below.
11.
Petitioner argues that the District Court's findings of
fact and conclusions of law are inconsistent. The record
shows that the District Court merely recapitulated the
history of the case and the hearing examiner's findings and
conclusions. Then, in a brief opinion the court set forth
the standard for reviewing those findings and, finding ample
evidence to support them, affirmed the Commission's order.
There is no need to review those facts in detail.
Petitioner alone alleged that racial harassment was directed
at him. He alone maintained that he had notified his superiors
of the alleged harassment. And he alone testified that he
told his superiors he was resigning because of racial haras-
sment. No other witness corroborated those allegations; no
one recalled any harassment of petitioner, or any complaint
by petitioner about harassment. And no one else felt that
the jocular, frequently profane, ethnic references between
employees were vindictive or directed at petitioner. Peti-
tioner's superiors testified that the only dissatisfaction
petitioner mentioned to them concerned wages, paperwork, and
his discomfort with Hveem's criticism.
Section 2-4-704 (2) provides:
" (2) The court may not substitute its judg-
ment for that of the agency as to the weight
of the evidence on questions of fact."
This Court amplified that provision in Martinez, supra:
". . . In questions of this kind, where the
agency is entrusted and charged with adminis-
tering the statute and making necessary, ini-
tial factual determinations, it is well set-
tled that a reviewing court's function is
limited. Where factual determinations are
warranted by the record and have a reason-
able basis in law, they are to be accepted.
It is not the court's function to substitute
its own inferences of fact for those of an
administrative tribunal or agency, where
facts are supported by the evidence in the
record.
"Where the issue (in controversy) is so close
and there is sufficient credible evidence on
the record which would allow reaching opposite
conclusions, we think that a finding which
overturns another as being 'clearly erroneous'
is an abuse of discretion. Where the District
Court's reviewing function is limited, as in
this case, the findings of administrative
agencies and tribunals must be sustained where
there is sufficient credible evidence in the
record." Martinez v. Yellowstone County Wel-
fare Department, Mont. at , 626 P.2d
at 247-248, 38 St.Rep. at 480, citing Standard
Chemical Manufacturing Company v. Employment
Security Division (1980), Mont. , 605
P.2d 610, 613-614, 37 St.Rep. 105, 108-110.
The District Court properly found "ample evidence and
testimony" to support the findings and conclusions of the
hearing examiner and the Commission.
Petitioner also challenges the logic of several of the
hearing examiner's determinations:
(1) Petitioner claims that for MDU to assign him to work
under Hveem, who knew less about arc welding than did petitioner,
is evidence of MDU's disparate treatment of him, and the
hearing examiner could not reasonably find no discriminatory
conduct on the part of MDU. We would point out that Hveem
had spent 29 years with MDU, and was, apart from his lack of
expertise in arc welding, a reasonable choice for foreman.
Furthermore, when certain unjustified reprimands by Hveem of
petitioner's arc welding technique were brought to the
supervisor's attention, Hveem was directed to stop them.
There is no evidence of disparate treatment of petitioner
here.
(2) Petitioner argues that it is more reasonable to
conclude that the conditions which led to his first resigna-
tion were not remedied by MDU and caused his final resigna-
tion, than that he left because of insufficient wages. But
the weight of the evidence indicates that petitioner's
dissatisfaction with Hveem led to his first resignation, and
was remedied by Hveem's replacement by Sprague as petitioner's
foreman. Also, when petitioner resigned in 1976, he told
two of his supervisors he was doing so because of dissatisfac-
tion over wages. There is no evidence but petitioner's own
testimony, part of which the hearing examiner explicitly
found not credible, to support his claim that discrimination
and harassment forced his resignation. There is no inconsistency
here.
(3) Petitioner argues that it was not logical for the
hearing examiner to find that he resigned over a salary
dispute, when the record shows that he refused MDU's offer
of more money to do independent welding work for MDU. But
the record also shows that the nature of the work offered
would have been different. Further, neither the hearing
examiner nor the District Court found that petitioner's
belief that he had been racially harassed was spurious and
unrelated to his resignation. Nor do we. It is entirely
possible that petitioner's sensitivity to his co-employeesL
conduct played a part in his decision to resign and his
decision not to accept MDU's offer of independent work. But
petitioner has not shown this Court, as he did not show the
hearing examiner and the District Court, that the conduct
actually amounted to racial harassment, or that he had
brought it to MDU's attention. We do not find petitioner's
refusal to accept MDU's offer convincing evidence that
petitioner was, in fact, a victim of racial harassment.
(4) Finally, petitioner exhorts this Court to "breathe
life into the words 'equal opportunity"' by requiring a
lower threshold for a finding of racial harassment than that
established by the federal courts in Title VII cases. We
would remind petitioner that this Court has a responsibility
to the employer as well as to the employee. Part of that
responsibility consists in requiring adequate credible
evidence of discrimination before subjecting an employer to
the penalties associated with a finding of discrimination.
This is particularly important where, as here, there is only
one person alleging harassment or discrimination. It would
be irresponsible for this Court to reverse the ~istrictCourt,
in the teeth of the hearing examiner's finding that, as to a
crucial question of fact, petitioner's testimony was not
credible, and despite the District Court's determination
that the weight of evidence supported MDU's innocence of
constructive discharge. That we decline to do.
Affirmed.
We Concur: