NO. 88-136
IN THE SUPREME COURT OF THE STATF OF MONTANA
1988
BONNIE K. CROCKETT,
Plaintiff and Appellant,
-vs-
CITY OF BILLINGS, PUBLIC COMMUNICATIONS
DISPATCH CENTER,
Defendants and Respondents.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable William J. Speare, District Judge.
COUNSEL OF RECORD:
For Appellant:
Jones Law Firm; Blair Jones, Billings, Montana
For Respondent:
Paul J. Luwe, City Attorney's Office, Billings,
Montana
Submitted on Briefs: Aug. 4, 1988
Decided: September 22, 1988
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Filed:
7
SEP 2 2 11
98
1
Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
Bonnie K. Crockett appeals from a judgment by the
District Court of the Thirteenth Judicial District,
Yellowstone County, in this case brought against the City of
Billings (City) for employment discrimination. The District
Court ruled in favor of the defendant City. We affirm.
The issues raised on appeal are:
1. Whether the District Court considered and applied
the standard of proof appropriate in a discrimination case?
2. Whether the findings of the District Court are
supported by sufficient credible evidence?
3. Whether the District Court erred in admitting into
evidence exhibits containing hearsay?
4. Whether the District Court appropriately considered
the reasonable cause finding of the Montana Human Rights
Commission?
Bonnie K. Crockett (Crockett) was employed by the City
of Billings as a telephone operator from March 10, 1981 until
July 13, 1983. In July of 1983, she voluntarily resigned,
after notice, from her position with the City. She then
sought work in San Diego. Crockett subsequently decided to
return to Billings upon learning of her grandmother's
illness, and toward this end, Billings Police Officer Gary
Crockett traveled to San Diego to help Crockett move back to
Billings. The two were married during the move back to
Billings.
In January of 1984, the City accepted applications to
fill a telephone operator job opening in the Public
Communications Dispatch Center (Center). Crockett applied
for this telephone operator position, one she previously had
held with the City. She passed the preliminary screening
test given to all applicants and subsequently was interviewed
on January 11, 1984. The interview was conducted by a
selection committee of three people: Jessee Gonzalez
(Gonzalez), supervisor of the Center; Captain John Hall,
liaison officer between the Billings Police Department and
the Center; and Richard Owens, a lead worker at the Center.
Crockett was asked numerous questions during the
interview, including one question about how she would deal
with those officers who lacked confidence in her ability to
satisfactorily perform her job. Because of the demands of
the position and concern for the safety of the officers and
public, she also was asked if she would be able to dispatch
her husband into a dangerous situation.
Following interviews with all the top candidates, the
selection committee ranked the top four to six applicants in
order of hiring priority. Crockett was ranked fourth or
fifth. Although Gonzalez had discretion to select any of the
top ranked applicants, he routinely selected the applicant
ranked number one. Consequently, on January 17, 1984,
Gonzalez offered the job to Camille Brynes, a single woman
qualified for the position by virtue of her previous PBX
switchboard experience but without previous work experience
in the Center.
The City asserted Crockett was not ranked higher, and
consequently was not hired, because of numerous performance
problems during her former employment with the Center. More
specifically, Gonzalez had extended her probationary period
another ninety days because of problems with "attitude
adjustment, work performance, absenteeism" and her need for
increased productivity. Gonzalez notified Crockett of this
extension by a letter written September 10, 1981. Although
her performance appraisal for the period from July to
December of 1981 noted her job aggressiveness and aptitude
for learning, it commented upon her need to control flareups,
to adjust her attitude when confronted with directives or
policy changes, and to study street locations. Crockett was
counseled about these problems on January 5, 1982. Her
performance appraisal for the period of December 1981 though
December 1982 again noted some performance problems,
including her lax attendance without good excuse,
defensiveness when given constructive criticism,
nonconstructive use of idle time, irregular attendance at
lead worker meetings, and excessive use of the telephone for
personal calls. Additionally, Crockett received a written
warning on February 18, 1982, because she made a shift change
without the approval of the lead worker and then failed to
notify the lead worker of illness preventing her from
reporting for duty the following day. However, Crockett
asserted that another co-employee requested this change,
which Crockett obliged, and that the co-employee, not
herself, thus was responsible for obtaining lead worker
approval .
The City asserted that problems with various police
officers also led to Crockett's lower ranking. In 1982, four
dispatch complaints were filed, with two verified as valid.
These complaints included failure to acknowledge a call,
which resulted in no backup, and to properly complete an
abandoned automobile form. In 1983, six complaints
concerning Crockett's job performance were filed, with four
verified as valid complaints; these included two improper
officer dispatches, an employee dispute involving others in
the Center, and a mix-up in complaint dispatch forms between
Crockett and several others. Consequently, in September of
1983, Lieutenant Christensen expressed concerns about the
rehire of Crockett should she reapply for a position with the
Center.
Crockett alleged that she was not hired because of her
marriage to a police officer and asserted that such marital
discrimination was illustrated by the statements made by
Gonzalez to V.E. Henman, business representative for the
Teamsters Union which represents Center employees, and to
Gary Angel, an employee with the City. Henman alleged that
in a telephone conversation with Gonzalez on January 20,
1984, Gonzalez stated that he did hot hire Crockett because
she was married to a police officer. Gary Angel also
asserted that he and his supervisor Paul Totten heard
Gonzalez, while at a Center orientation session, make a
similar comment about his reason for not hiring Crockett.
However, city records indicate that no orientation sessions
were conducted in the Center in 1984 and that Paul Totten was
not hired until 1985. Further, Gonzalez denied making any
such comment to Angel or Henman.
Both Crockett and her husband, Gary Crockett, stated
that Gonzalez told them at a meeting with Gonzalez on January
23, 1984, that she was not hired primarily because of
problems with police officers, but that her marriage to a
police officer also had something to do with the decision not
to rehire her. Yet, Crockett failed to claim on a
subsequent preliminary inquiry by the Montana Human Rights
Commission (Commission) that Gonzalez made any such reference
to her marital status during their meeting with him. The
charge of discrimination she filed with the Commission
similarly failed to mention any reference by Gonzalez to her
marital status. A letter written by Gary Crockett to the
Commission, concerning the conversation with Gonzalez on
January 23, 1984, states that they only were told that
Crockett was not hired because of past problems with
officers. Additionally, Gonzalez denied stating during the
meeting with Crockett, that her marriage was a reason for his
decision not to rehire her.
Crockett filed a complaint with the Commission on
February 17, 1984, alleging that the City discriminated
against her by failing to hire her because of her marital
status. The Commission issued a reasonable cause finding on
April 25, 1985, following a preliminary investigation. No
hearing was conducted, but instead on October 21, 1985, at
the request of the City, the Commission issued a right to sue
letter.
On January 10, 1986, Crockett filed suit in District
Court alleging marital discrimination by the City. A nonjurv
trial was conducted on June 22 and 23, 1987. The District
Court entered judgment against Crockett on December 18, 1987,
holding that the City did not discriminate against Crockett
because of her marital status when it failed to rehire her
for the position for which she had applied. This appeal
followed.
The first two issues raised on appeal involve the
appropriate standard of proof in an employment discrimination
case and the sufficiency of the evidence to support the
District Court findings. To reduce any unnecessary
duplication, we will discuss these two issues together.
The provisions that assure protected groups freedom
from discrimination under Title 49 of the Montana Human
Rights Act are closely modeled after the provisions of Title
VII of the Federal Civil Rights Act of 1964, 42 U.S.C.
S 2000e et seq. Consequently, Montana courts have examined
the rationale of federal case law and have expressly adopted,
for all cases involving disparate treatment of a protected
class member, the three-tier standard of proof set forth in
McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 9 3
S.Ct. 1817, 36 L.Ed.2d 668. Johnson v. Bozeman School Dist.
(Mont. 1987), 734 P.2d 209, 44 St.Rep. 531; European ~ e a l t h
Spa v. Human Rights Comrn'n (Mont. 1984), 687 P.2d 1029, 41
St.Rep. 1766; Martinez v. Yellowstone Co. Welfare Dept.
(Mont. 1981), 626 P.2d 242, 38 St.Rep. 474.
Appellant, who was married in September of 1981, was
clearly a member of a protected class. Marital status is a
protected status and 5 s 49-2-303 and 49-3-201, MCA, prohibit
an employer from discriminating on the basis of such
marriage.
49-2-303. Discrimination in Employment.
(1) It is an unlawful discriminatory
practice for:
( a ) 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 . . .
49-3-201. Employment of state and local
government personnel. (1) State and
local government officials and
supervisory personnel shall recruit,
appoint, assign, train, evaluate, and
promote personnel on the basis of merit
and qualifications without regard to
. .. marital status. . .
Further, appellant's claim of employment discrimination
arose from her alleged unequal and discriminatory treatment
under hiring procedures which on their face do not
discriminate against applicants married to police officers.
This case thus involves a cl-aim of disparate treatment of a
protected class member and we hold that the standard of proof
set forth in McDonnell Douglas is applicable to this case.
The first tier of proof in McDonnell Douglas, requires
a complainant to initially establish a prima facie case of
discrimination by proving the following four elements by a
preponderance of the evidence:
( i ) that he belongs to a [protected
class] . .
. ; (ii) that he applied and
was qualified for a job for which the
employer was seeking applicants; (iii!
that, despite his qualifications, he was
rejected; and (iv) that, after his
rejection, the position remained open an^
the employer continued to seek applicants
from persons of complainant's
qualifications.
McDonnell Douglas, 411 U.S. at 802. The Supreme Court in
McDonnell Douglas, however, noted that this standard of proof
is flexible as the four elements may not necessarily apply to
every disparate treatment claim. In Martinez, we thus
recognized that the fourth element in McDonnell Douglas could
be satisfied simply by showing that a job vacancy is filled
by an applicant who is not a member of the particular
protected group. See Martinez, 626 P.2d at 246 (citing
Crawford v. Western Elec. Co., Inc. (5th Cir. 1980), 614 F . 2 d
The District Court considered and applied the standard
of proof set forth in McDonnell Douglas and found that
Crockett had established a prima facie case of employment
discrimination. The District Court did not expressly state
its application of the appropriate McDonnell Douglas
standard. However, its findings of fact 2-9, cited as
support for its determination that Crockett had established
an initial prima facie case of marital discrimination,
indicate the court followed the initial McDonnell Douglas
four-tiered test. The District Court found that Crockett was
a married applicant, that she had applied for a job posted by
the City and that she was qualified for this job by virtue of
her previous experience, that she was rejected despite her
qualifications, and that the job was instead filled by a
single woman. Neither party contests the sufficiency of
these findings of fact.
The establishment of a prima facie case under
McDonnell Douglas raises an inference of discrimination at
law. The burden then shifts to the defendant to "articulate
some legitimate, nondiscriminatory reason for the employee's
rejection." McDonnell Douglas, 411 U.S. at 802. Defendant
only hears the burden of production of a legitimate
nondiscriminatory reason. This burden comprises the second
tier of proof under McDonnell Douglas; it is imposed on the
defendant for two reasons:
[It] meet[sl the plaintiff's prima facie
case by presenting a legitimate reason
for the action and ... frame[sl the
factual issue with sufficient clarity so
that the plaintiff will have a full and
fair opportunity to demonstrate pretext.
Texas Dept. of Community Affairs v. Rurdine (1981), 450 U.S.
248, 255-56, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207, 217. A
defendant thus only need raise a genuine issue of fact by
clearly and specifically articulating a legitimate reason for
the rejection of an applicant. Johnson, 734 P.2d at 212.
As noted in McDonnell Douglas, even past conduct may he
relevant to an employer's assessment of present fitness for a
job. McDonnell Douglas, 411 U.S. at 806-07, n. 21 (citing
Garner v. Bd. of Public Works of Los Angeles (1951), 341 U.S.
716, 71 S.Ct. 909, 95 L.Ed. 1317). A defendant need -not
adopt a hiring procedure that maximizes the hiring of any one
protected class, nor even persuade the court that the
defendant's decision was actually based upon the proffered
reasons. Furnco Constr. Corp. v. Waters (1978), 438 U.S.
567, 577-78, 98 S.Ct. 3 9 4 3 , 2950, 57 L.Rd.2d 95?, 968;
Burdine, 450 U.S. at 254.
The District Court's conclusion of law number 3 clearly
indicates that the court also considered and applied the
facts to this second trier of proof required jn
McDonnell Douglas. The court concluded that the reason
offered by the defendant in support of its decision not to
rehire plaintiff, namely past job performance prohl.ems,
constituted a legitimate nondiscriminatory reason.
Appellant contends, however, that the findings of past
performance problems by the court were not supported by the
evidence. Upon review, we must view the evidence in "a light
most favorable to the prevailing party" to determine whether
the findings of the trial court are supported by substantial
credible evidence. Wallace v. Wallace (1983), 203 Mont. 255,
259, 661 P.2d 455, 457 (quoting from In re Marriage of
Bosacker (1980), 187 Mont. 141, 145, 609 P.2d 253, 256). We
will not set aside the District Court's findings of fact
unless they are unsupported by substantial credible evidence
and thus clearly erroneous. See Rule 52(a), M.R.Civ.P.
The District Court based its determination that prior
performance problems did in fact exist upon various exhibits
introduced into evidence and upon witness testimony. A
letter documented the extension of Crockett's initial
probationary period on September 10, 1981, because of
absenteeism, work performance, and attitude problems.
Further, performance appraisals on Crockett's job performance
during the period of July 1981 to December of 1982 documented
numerous job performance problems including defensiveness
when constructively criticized, flareups of temper, lax
attendance without excuse, and the excessive use of the
office telephone for personal calls. Testimony indicated
that Crockett was counseled about these performance problems
on January 5, 1982, and again on January 3, 1983. Captain
John Hall testified that he had received numerous complaints
from officers about Crockett's job performance. Those
written complaints which were found valid after investigation
included complaints for failure to acknowledge a call
resultins in no back-up, failure to properly complete an
abandoned automobile form, mix-up in complaint dispatch forms
involving others, involvement in an employee dispute while at.
work, and two improper officer dispatches. The above
evidence certainly amounts to substantial credible evidence
supporting the District Court's finding of legitimate job
performance problems. The District Court did not commit
legal error when it thereafter concluded that a legitimate
nondiscriminatory reason existed supporting the defendant's
decision not to rehire Crockett.
Once the defendant has produced a legitimate reason in
support of its decision not to rehire, the plaintiff then
must show that the defendant's reasons are in fact a pretext.
McDonnell Douglas, 411 U.S. at 802; Martinez, 626 P.2d at
246. This is the third and last tier of proof required in
McDonnell Douglas. -
As stated in Burdine, proof of the
pretextual nature of the defendant's proffered reasons may be
either direct or indirect:
She may succeed in this either directly
by persuading the court that a
discriminatory reason more likely
motivated the employer or indirectly by
showing that the employer's proffered
explanation is unworthy of credence.
Burdine, 450 U.S. at 256. Ultimately, the plaintiff must
persuade the court by a preponderance of the evidence that
the employer intentional-.l_y discriminated against her.
Johnson, 734 P . ? d at 213.
The District Court's conclusion of law number 4 states:
"Rased on findings of fact 15 through 18, Plaintiff failed to
show that the reason articulated by Defendant for not hiring
Plaintiff was a pretext." This conclusion illustrates that
the District Court did in fact appropriately consider and
apply the facts to the third-tier standard of proof set forth
in McDonnell Douglas. We conclude that the District Court
properly considered and applied all three tiers of proof
required in McDonnell Douglas.
Appellant again contends, however, that the evidence
does not support the court's conclusion that the articulated
performance problems were legitimate. We hold, however, that
substantial credible evidence exists in support of the
court's determination that marital status was - the more
not
likely motivation behind the City's decision. Evidence was
introduced contradicting the testimony of Gary and Bonnie
Crockett, Gary Angel, and Bud Henman. This contradicted
testimony had formed the basis of plaintiff's allegations of
discrimination, as all three alleged they were told by
Gonzalez that Crockett was not hired because she was married
to a police officer.
Gonzalez himself testified under oath that he did not
state to anyone that Crockett's marital status was a reason
for her nonhire. The evidence indicated that Paul Totten was
in fact not even hired until 1985, the year after Gary Angel
alleged Totten was present when Gonzalez made the disputed
discriminatory comments at a work orientation session.
Additionally, the charge of discrimination filed by Crockett
failed to mention the alleged discriminatory comment by
Gonzales. Further, the letter Gary Crockett wrote to the
Commission stated only that they were told she was not hired
because of her past problems with officers. All the above
mentioned testimony and evidence was o f f ~ r e d to refute any
direct evidence of marital discrimination. We hold that this
evidence combined with the previously mentioned credible
evidence of performance problems amounted to substantial
credible evidence which supported the District Court's
determination that marital status was not the motivating
reason for nonhire. The fact that the previously introduced
complaints and reprimands were written and filed when
Crockett was single, further supports the District Court's
determination that evidence of prior performance problems was
in fact credible.
The Court of Appeals for the Ninth Circuit has held,
and we think rightly so, that a defendant must be given an
additional opportunity to prove that he or she would have
made a similar employment decision, irrespective of any
unlawful discrimination, only if liability for unlawful
discrimination is first established. See, Muntin v. State of
California Parks & Recreation Dept. (9th Cir. 1984), 738 F . 2 d
1054, 1056. The District Court's ultimate determination that
the plaintiff failed to prove unlawful discrimination in this
case prevents any need for examining the weight given an
alleged unlawful motive. Consequently, the District Court
did not err by confining its findings to a consideration and
application of the standard of proof found in
McDonnell Douglas.
The third issue raised on appeal is whether the
District Court erred by admitting exhibits G, H I I, and J
under Rule 803 (6), M. R.Evid., the business record exception
to the hearsay rule, and under the pretrial stipulation by
both parties. Exhibits G, H, I, and J are written complaints
about Crockett's job performance that various police officers
filed with Captain John Hall.
The pre-trial order had an exhibit list attached which
gave a brief description of each exhibit and noted any
objections. The plaintiff made no objection on the pre-trial
order to the admission of exhibits G I H I I, and J. The
District Court thus admitted these exhibits over plaintiff's
objections at trial, noting that these exhibits could be
properly classified as exceptions to the hearsay rule under
Rule 803 (6), M.R.Evid.
Having stipulated to the admission of documents without
foundation, a party may not later raise a hearsay objection
at trial. Swenson v. Buffalo Bldg. Co. (Mont. 1981), 635
P.2d 978, 984, 37 St.Rep. 1588, 1594. The District Court did
not err by admitting the exhibits without foundation as
agreed to by both parties in the pre-trial order. We thus
need not discuss whether the exhibits were properly
admissible under Rule 803 (6), M.R.Evid.
The fourth issue raised on appeal is whether the
District Court gave sufficient weight to the reasonable cause
finding of the Commission. We hold that the District Court
did not err in the weight given to the reasonable cause
finding as it was not properly admissible in the first place.
The issue of the admissibility of a reasonable cause
finding has not been previously addressed by this Court, but
much federal case law exists on the subject of the
admissibility under federal law of findings by the Equal
Employment Opportunity Commission (EEOC). The majority of
the federal circuits generally have held that the
admissibility of the EEOC1s final decision of cause is a
matter of trial court discretion. See, e.g., Walton v. Eaton
Corp. (3rd Cir. 1977), 563 F.2d 66; Strong v. Mercantile
Trust Co. (8th Cir. 1987), 816 F.2d 429, cert. denied, 108
S.Ct. 759 (1988). The Ninth Circuit has gone even farther
and held that EEOC findings are per se admissible. See,
e.g., Smith v. Universal Servs., Inc. (5th Cir. 19721, 454
F.2d 154; Bradshaw 17. Zoological Soc'y of San Diego (9th Cir.
1978), 569 F.2d 1066. All circuits which admit EEOC
findings, however, do so under Rule 803(8) of the Federal
Rules of Evidence which is significantly different from Rule
803(8) of the Montana Rules of Evidence.
The Federal Rule generally allows for the admission of
agency findings which result from an investigation authorized
by law; lack of trustworthiness is the only express
limitation upon admission. More specifically, Rule 803(8),
Fed.R.Evid. states that the following are excepted from the
hearsay rule:
(8) Public Records and Reports. --
Records, reports, statements, or data
compilations, in any form, of public
offices or agencies, setting forth ...
(C) . . .
factual findings resulting from
an investigation made pursuant to
authority granted by law, unless the
sources of information or other
circumstances indicate lack of
trustworthiness.
Montana, on the other hand, has adopted the Uniform Rules'
version of Rule 803(8) which contains four additional
limitations not found in Rule 803(8), Fed.R.Evid. The
additional limitation pertinent to the issue of the
admissibility of the reasonable cause finding is found in
subsection (iv) which reads:
[Tlhe following are not within this
exception to the hearsay rule: ...
(iv)
factual findings resulting from special
investigation of a particular complaint,
case, or incident ...
Rule 803 (8), M.R.Evid., specifically excludes factual
findings such as the reasonable cause finding of the
Commission which directly results from an investigation of a
particular complaint of discrimination.
In Tiemann v. Santarelli Enterprises, Inc. (Me. 1984),
486 A.2d 126, the Supreme Court of Maine, a state which has
also adopted the Uniform Rule's version of 803(8), ruled that
federal cases decided under the Federal Evidentiary Rule
803 (8)(C), were inapposite to a decision made under Maine's
.
Evidentiary Rule 803 (8) The Maine court then held that an
investigative report of a particular complaint of
discrimination was not admissible under Rule 803(8),
M.R.Evid. Tiemann, 486 P.2d at 131-132. We similarly hold
that the reasonable cause finding of the Montana Human Rights
Commission was not properly admissible at trial, and that the
District Court erred in admitting it into evidence. This
error, however, was not prejudicial to the outcome of this
case.
Affirmed.
We concur:
hief Justice
Justices