No. 86-60
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
DALLAS JOHNSON,
Plaintiff and Respondent,
-vs-
BOZEMAN SCHOOL DISTRICT NO. 7,
Defendant and Appellant,
APPEAL FROM: District Court of the Eighteenth ~udicialDistrict,
In and for the County of Gallatin,
The Honorable Byron Robb, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
White & Seel; Donald E. White, Bozeman, Montana
For Respondent:
Kirwan & Barrett; Peter M. Kirwan, Bozeman, Montana
Submitted on Briefs: Nov. 21, 1986
Decided: March 18, 1987
Filed: MAR 1 8 7987
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
Rozeman School District No. 7 appeals a September 30,
1985, order of the Eighteenth Judicial District Court,
Gallatin County. The order affirmed a Human Rights Commis-
sion determination that Dallas Johnson was unlawfully dis-
criminated against by the School District on the basis of
marital status. Johnson cross-appeals that part of the order
which denied him tenure, attorney fees, and the right to have
his damages recalculated.
The School District raises two issues for our review:
1. Did the Human Rights Commission and the District
Court err in finding that the School District discriminated
against Johnson on the basis of his marital status?
2. Did the Human Rights Commission and the District
Court err by failing to find that Johnson's claim is barred
by laches?
Johnson raises three additional issues:
3. Did the Human Rights Commission abuse its discre-
tion by failing to award Johnson tenure with the School
District?
4. Did the Human Rights Commission abuse its discre-
tion by failing to exclude Johnson's summer earnings from its
calculation?
5. Did the District Court abuse its discretion by
failing to award Johnson his reasonable attorney fees?
We reverse on Issue 1, which renders moot Issues 2, 3,
4 and 5.
In June 1975, Dallas Johnson applied for a position as
a physical science teacher at Bozeman Junior High within
School District No. 7 (School District). Johnson has a
Bachelor's degree from Montana State University and a
Secondary Teacher's Certificate. Johnson's wife was a teach-
er at Bozeman Junior High. At the time of Johnson's applica-
tion, the School District had a policy in effect which
prohibited persons of the same immediate family from teaching
in the same school. Johnson was unaware of this policy at
the time he applied with the School District. At the outset,
we note that the School District properly abandoned this
policy in 1 9 8 1 .
Donovan Miller was the personnel director for the
School District from 1 9 7 5 to 1 9 8 0 . Part of his job involved
screening all applications for teaching in the School Dis-
trict. His procedure was to review the applications, assign
each one a numerical rating, and then send those applications
with the highest ratings to the principal of the school where
an opening existed. The applicants were rated on a scale
from "one to five;" a rating of "one" was superior and a
rating of "five" was poor. Johnson's application was rated
along with a large number of other applicants for the teach-
ing position at Bozeman Junior High. Johnson was rated at
"four." The other applicants all had higher ratings than
Johnson.
The School District had never hired any one rated less
than "two." Miller's policy was to send only those applica-
tions rated a "one" or "two" to the particular principal for
review. However, the principal doing the interviewing could
request a particular application from Miller.
Francis Olson was the principal at Bozeman Junior High
from 1 9 6 7 to 1 9 8 1 . He was familiar with Johnson because
Johnson had student-taught at the junior high. Soon after
Johnson applied for the teaching position, he contacted Olson
to ask whether Olson had received Johnson's application.
Since Olson had not yet received it, Olson called Miller to
inquire about the application. Olson requested that
Johnson's file be forwarded to him for review. Miller did
not refer to Johnson's low rating, but only told Olson that
he would not send the application because the School Dis-
trict's policy prohibited Johnson's employment at Bozeman
Junior High, since Johnson's wife was already employed there.
Shortly thereafter, Olson told Johnson what Miller had said.
On July 18, 1975, Johnson filed a complaint with the
Human Rights Commission alleging that the School District
violated $ 49-2-303, MCA, by discriminating against him on
the basis of his marital status. On June 21, 1976, and on
December 19, 1979, he filed additional amended complaints
with the Commission alleging the same violations as were
alleged in his initial complaint. However, the Commission
was unable to conduct an investigation on the matter until
October 1979 because of the pendency of ap action brought by
the School District against the Commission.
On December 17, 1980, the Human Rights Commission
issued a reasonable cause finding, and on May 18, 1982, a
hearing was held before an examiner appointed by the Comrnis-
sion. The hearing examiner found that the School District
had unlawfully discriminated against Johnson on the basis of
marital status, and ordered the School District to offer
Johnson the next available teaching position in the system.
Additionally, the examiner awarded Johnson "back pay and
front pay." On Parch 31, 1983, the case was heard before the
Human Rights Commission. It affirmed the findings and pro-
posed order of the hearing examiner. Johnson was awarded all
rights and privileges that would have accrued by reason of
employment with the School District since 1975, with the
exception of tenure. The award of "back pay and front pay"
was offset by the amount that Johnson had actually earned
since 1975. The School District then filed a petition for
iudicial review with the District Court. On September 30,
1985, the District Court affirmed the decision of the Human
Rights Commission. Both parties have appealed the judgment
of the District Court.
Issue 1
Did the Human Rights Commission and the District Court
err in finding that the School District discriminated against
Johnson on the basis of his marital status?
At the time Johnson applied for a teaching position
with the School District, the School District had a policy in
effect which prevented spouses from teaching in the same
school. The Human Rights Commission ultimately concluded
that Johnson was qualified for the teaching position he
applied for and was prevented from consideration because - of
the anti-nepotism policy. It also concluded that Johnson had
been unlawfully discriminated against, in violation of
S 49-2-303 (1) (a), MCA, which provides:
It is an unlawful discriminatory prac-
tice for ... an employer to refuse
employment to a person, to bar him from
employment, or to discriminate against
him in compensation or in a term, condi-
tion, or privilege of employment because
of his ... marital status... [Em-
phasis added. ]
The Commission's findings of fact are subject to the
judicial standard of review set forth in f; 2-4-704 ( 2 ) , MCA,
which states in relevant part:
The court may not substitute its judg-
ment for that of the agency as to the
weight of the evidence on questions of
fact. The court may affirm the decision
of the aqency or remand the case for
further proceedings. - court may
The
reverse or modify the decision - -
if sub-
stantialriahts - - a ~ ~ e l l a n have
of the t
been prejud