European Health Spa v. Human Rights Commission

                                   NO. 84-94
                    IN THE SUPREME COURT OF THE STATE OF MONTANA

                                        1984



EUROPEAN HEALTH SPA,
                    Petitioner and Appellant,


THE H P A J RIGHTS COMMISSION OF
     U4P
THE STATE OF MONTANA, and VIOLET
HADDOW,
                    Respondents and Respondents.




APPEAL FROM:        District Court of the Thirteenth Judicial District,
                    In and for the County of Yellowstone,
                    The Honorable Charles Luedke, Judge presiding.

COUNSEL OF RECORD:

         For Appellant:
                    John K. Addy, Billings, Montana

         For Respondents:

                    Keefer, Roybal, Hanson, Stacey & Jarussi; Calvin J.
                    Stacey, Billings, Montana
                    Kathleen F. Holden, Human Rights Commission, Helena,
                    Montana



                                   Submitted on Briefs:    July 27, 1984
                                                Decided:   September 13, 1984



Filed:    .,G   .




                                   Clerk
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
        The Thirteenth Judicial District Court of Montana issued
a judgment on December 19, 1983, affirming the January 21,
1983, final order of the Human Rights Commission and awarding
Violet    Haddow     (Haddow) $3,500        in     attorney's    fees.        The
Commission ruled in its order that the European Health Spa
(Spa) had        discriminated     against    Haddow      on   the    basis    of
marital status.         Spa appeals the judgment of the District
Court.    We affirm.
        Violet Haddow was hired by Spa as an instructor in May
of 1977.        She was reclassified to a counselor/consultant in
September       of   1977.         A     counselor/consultant          solicits
memberships in the Spa.           As a counselor, Haddow never failed
to produce commissions equalling or surpassing her monthly
draw of $500.        In fact, from September 1977 until July 1978,
Haddow averaged approximately $890.00 a month in commissions.
She was        consistently above the        50th percentile          in   sales
totals for the Rocky Mountain area.
      Haddow requested and subsequently took vacation leave
from August       3 to August          11, 1978.      On August       7, 1978,
Haddow's husband, John Haddow, was terminated as manager of

the     Spa.      The   reason     given     for    his    termination        was
mismanagement of funds.
      European Health Spa places a ceiling on commissions spa
managers can receive for spa memberships they, themselves,
sell.     John Haddow transferred some of his own membership
sales to Spa counselors and subsequently obtained from them
the commissions they received for those sales.                   He also was
accused    of     failing    to   record     spa    membership       sales    and
pocketing the proceeds from those sales.                  (The Commission's
revised findings of fact nos. 15, 16 and 17.)
       Violet Haddow visited the Spa on August 9, 1978.                            The
new manager's wife overheard Haddow stating that her husband
had     been     fired    because       the     new    manager      had    personal
connections with company management and that a petition to
oust the new manager and                reinstate her husband would be
circulated.       Haddow was subsequently called from the exercise
floor and fired by the new manager.
       On August 28, 1978, Haddow filed a complaint alleging
that    she was        discharged because         she is the wife of the
recently-discharged manager; and, that her discharge violated
the marital status discriminati-on prohibitions of the Human
Rights Act, section 49-2-303 (1) (a), MCA.
       Spa denied the allegations and claimed that Haddow was
fired for several nondiscriminatory reasons.                         Specifically,
Violet Haddow :           (1) was aware of her husband's kickback
scheme involving the commissions (p. 103 of the transcript of
the June 26, 1980, hearing before the examiner); (2) failed
in her weekend responsibilities as assistant-manager; (3) was
behind     in    sales        production;       (4)   sold      three,    one-month
memberships        (against         company    policy)       and    pocketed       the
proceeds; and (5) was grossly insubordinate in her behavior
on the day she was discharged.
       A hearing was held before a hearings examiner on June
26, 1980.        Haddow presented substantial evidence to refute
Spa's    allegations,          including       records     of     commissions      she
earned, documents contradicting Spa's assertion that she was
assistant manager, the Spa's employee handbook setting forth
the    procedures        to    be    followed    prior       to    terminating     an
employee and a "Personnel Action Notice" documenting Violet
Haddow's        termination         prepared     on    August       4,    1978    and
indicating        an     effective        date        of   August         7,     1978.
Coincidentally, the           same   dates     appear     on    John    Haddow's
"Personnel Action Notice."
      Findings of fact, conclusions of law and a proposed
order were issued October 6, 1980, by the hearings examiner.
He found that Spa had decided to terminate Haddow on August
4, 1978, the same date they decided to discharge her husband.
He further found a lack of substantial credible evidence to
support all of Spa's alleged reasons for discharging Haddow
except      her    insubordinate        conduct      on   August       9,        3.978.
Regarding that conduct, he stated:              "Haddow's behavior in the
locker room may well be valid grounds for discharge, however,
I cannot      say as a matter of             fact that it overcame and
replaced the prior decision on August 4 to discharge Haddow."
(Finding of fact no. 27).               Then, citing McDonnell Douglas
Corp. v.      Green    (1973), 411 U.S.          792, 93 S.Ct.          1817, 36
L.Ed.2d     668, the hearings examiner held that Spa's alleged
reasons for terminating Haddow were merely '% pretext for
marital status discrimination. "               (Conclusion of 1a.w no. 2. )
Finally, because of her improprietous conduct, he denied
Haddow back pay.           (Conclusion of law no. 3.)
      Exceptions were filed, briefed and orally argued before
the   Human       Rights    Commission.        The    Commission        issued       a
proposed opinion September 30, 1981, adopting the examiner's
conclusion that the Spa had discriminated against Haddow, but
awarding her back            pay   in the amount of            $7,489.81, with
interest at 10%.
      Spa     filed    a     petition    for    judicial       review       in     the
Thirteenth Judicial District on November 16, 1981.                     The trial
judge determined that the Commission had failed to review the
complete record, pursuant to section 2-4-621 ( 3 ) , MCA, before
increasing the award to Haddow recommended by the examiner.
Thus, the      case was       remanded           for    further review by             the
Commission.
       Upon review of the entire record, the Commission issued
a final ord.er with revised findings and conclusions, dated
January 21, 1982.         The final order upheld the Commission's
initial holding and award of back pay with interest.                            It also
upheld the findings and conclusions of the examiner that
Spa's    reasons for Haddow's discharge were a pretext                                 for
marital status discrimination, citing McDonnell.
        Spa again filed a petition for judicial review.                               The
District Court affirmed the Commission's                          final order and
awarded      Haddow    $3,500     in    attorney's             fees.      From       that
judgment, Spa appeals the following issues:
        1.   Whether the District Court erred in using the test
in McDonnell rather than the "dual motivation theory" of Mt.
Healthy City School District Board of Education v. Doyle
(1977), 429 U.S.        274, 97 S.Ct.             568, 50 L.Ed.2d          471, when
reviewing      the     decision        of    the        Montana        Human        Rights
Commission; and
        2.   Whether    the      District              Court     erred         in     its
determination that Violet Haddow is entitled to back pay with
interest       from    the      date        of     the        hearing     examiner's
determination?
       The United States Supreme Court, in McDonnell set forth
a    test    for determining whether               employment discrimination
exists under Title VII of the Civil Rights Act of 1964, when
an    employee    is    discharged          for        both    discriminatory         and
nondiscriminatory reasons.             The test was explained in Texas
Deptartment      of Community Affairs v. Burdine (1981), 450 U.S.
248, 252-253, 101 S.Ct.           1089, 1093, 67 L.Ed.2d                   207, 215:
        "First, the plaintiff has the burden of proving by
        the preponderance of the evidence a prima facie
        case of discrimination. Second, if the plaintiff
       succeeds in proving the prima facie case, the
       burden shifts to the defendant 'to articulate some
       legitimate, nondiscriminatory    reason   for the
       employee's rejection.' Third, should the defendant
       carry this burden, the plaintiff must then have an
       opportunity to prove by a preponderance of the
       evidence that the legitimate reasons offered by the
       defendant were not its true reasons, but were a
       pretext for discrimination."    (Citations omitted)
       Mt. Healthy involves a constitutionally protected, first
amendment right.        Mr. Green was a nontenured school teacher
in the Mt. Healthy City School District.                    He was denied
tenure    and   discharged      for    "'a    notable    lack of    tact    in
handling professional matters which leaves much doubt as to
your sincerity in establishing good school relationships."'
Mt. Healthy, 429 U.S. at 282, 97 S.Ct. at 574, 50 L.Ed.2d                   at
481.          One      stated      indiscretion       was    an     activity
constitutionally protected by the First Amendment. The other
stated reason was an incident in the school's cafeteria which
did    not   involve    a   constitutionally protected            act.     The
Supreme      Court     remanded     the      case   with    the    following
instructions for determining whether Mr. Green's discharge
was a violation of his first amendment rights.
       "Initially, in this case, the burden was properly
       placed upon respondent to show that his conduct was
       constitutionally protected, and that this conduct
       was a 'substantial factor' - or, to put it in other
       words, that it was a 'motivating factor' in the
       Board's decision not to rehire him.        Respondent
       having carried that burden, however, the District
       Court should have gone on to determine whether the
       Board had shown by a preponderance of the evidence
       that it would have reached the same decision as to
       respondent's reemployment even in the absence of
       the protected conduct." Mt. Healthy, 429 U.S. at
       287, 97 S.Ct. at 576, 50 ~ T ~ d . 2at 484. (footnote
                                           d
       omitted)
       In Martinez v.       Yellowstone County Welfare Department
(Mont. 1981), 626 P.2d 242, 38 St.Rep. 474, we adopted the
McDonnell test       for employment discrimination cases                 filed
under     section      49-2-303,      MCA,    which     involve    disparate
treatment of a protected class because "[tlhe provisions of
Title 49, Montana Human Rights Act, are closely modeled after
Title VII of the Federal Civil Rights Act of 1964.          . . ."
Martinez, 626 P.2d at 245, 38 St.Rep. at 477.      Marital status
is defined as a protected class in Thompson v. Board of

Trustees, School District No.     12, Harlem, Blaine County,
(Mont. 1981), 627 P.2d     1229, 1231, 38 St.Rep.        706, 709.
Since the instant case was filed under section 49-2-303, MCA,
and involves a member of a protected class, we see no reason
to deviate from our posit.ion in Martinez.   The McDonnell test
is the appropriate test in this case.
     The second issue presented to this Court is whether or
not the Commission erred in awarding Haddow back pay when the
hearings examiner refused to do so.    We find. no error.
     The hearings examiner held      as a matter of law that
Haddow was not entitled to any pecuniary award, stating:
     ". . . Haddow's improprietous actions were no doubt
     soon discovered    after her     discharge.     The
     respondent would have had and did have adequate
     justifiable grounds to discharge her once it
     discovered the improper activities of the charging
     party."  (Hearings examiner's conclusion of law no.
     3
     "The Commission may    reject    or modify    an   examiner's
conclusions of law."   City of Billings v. State of Montana
Human Rights Commission    (Mont. 1984), 681 P.2d       33, 37, 41
St.Rep. 688, 693.   Section 2-4-621 (3), MCA.     After reviewing
the entire record, the Commission substantially changed the
hearings examiner's conclusion:
    "Conclusive substantial credible evidence that
    Violet Haddow has committed improprietous action is
    not part of the record.    The Respondent may have
    had adequate justifiable grounds to discharge her
    once it determined in a fair manner that she was
    involved in improper business activities.       The
    Respondent's handbook sets forth a procedure for
    such a discharge and Section 49-2-303, MCA, clearly
    permits such a discharge.    Neither was heeded in
    these circumstances."    (Commission's final order,
    conclusion of law no. 3)
       The   Commission   then   awarded   Haddow     $7,489.81,     with
interest thereon at       10% per annum from the date of the
hearing, June     26, 1980, until       the date paid.           The sum
represents the amount Haddow would have earned through June
30, 1979, the date she left the Billings, Montana area.
Section      49-2-506 (1) (b),   MCA,      gives      the     Commission
discretionary authority "to rectify any harm, pecuniary or
otherwise," to the person against whom discrimination is
found   .
       Neither the District Court nor this Court may alter the
conclusi.on of the Commission absent a             finding that      such
conclusion is arbitrary and capricious.            Section 2-4-704 ( 2 ) ,
MCA.    City of Billings v. Billings Firefighters Local No. 521
(Mont. 1982), 651 P.2d 627, 39 St.Rep. 1844.                The award of
back pay is supported by the evidence discussed above and is
well within the powers of the Commission.               It was neither
arbitrary nor capricious.
       The judgment of the District Court approving the order
of the Human Rights Commission is affirmed.




We concur:



-
Chief Justice