IN THE SUPREME COURT OF THE STATE OF MONTANA
P.W. BERRY COMPANY, INC.,
Petitioner and Appellant,
-vs-
DEBRA FREESE,
Respondent and Respondent.
APPEAL FROM: District Court of the First ~udicial~istrict: '
In and for the County of Lewis & Clark, . c b
;
.
The Honorable Henry Loble, Judge presiding. ir,
COUNSEL OF RECORD:
For Appellant:
Larry W. Jones; ~arlington,Lohn & ~obinson, is sou la,
Montana
For Respondent:
~alerieA. Bashor; Sherwood Law Office, iss sou la,
Montana
Submitted on ~riefs: June 30, 1989
Decided: September 18, 1989
Filed:
Mr. Justice John C. Sheehy delivered the opinion of the
Court.
P. W. Berry Company, Inc., appeals from a judgment of
the District Court, First Judicial ~istrict, Lewis and Clark
County, affirming an award of the Human Rights Commission to
Debra Freese of $4,730.25 as back wages with interest at the
rate of 10 percent per annum from the date the wages would
have been earned. We affirm.
Debra Freese charged the employer, P. W. Berry Company,
Inc., with sex discrimination in her employment which
resulted in her discharge. The Human Rights ~ivisionissued
"reasonable cause findings" in which it found there were
reasonable grounds to believe that discrimination occurred.
A hearing examiner appointed by the Human ~ i g h t sCommission
issued suggested findings of fact and conclusions of law that
were later essentially adopted by the Human Rights Commission
that sex discrimination had in fact occurred, and that Freese
was entitled to the loss of back wages with interest thereon.
The decision of the Human Rights Commission was appealed to
the District Court where, after consideration, the ~istrict
Court affirmed. An appeal to this Court resulted.
Berry has not appealed in this Court nor did it appeal
in the District Court, from the finding of the Human Rights
Commission that sex discrimination had occurred in the
discharge of Freese. The attack of Berry in the ~istrict
Court, and now in this Court, is that the back wages awarded
to Freese were improperly calculated.
Freese is a female construction laborer who at the time
of her first employment by Berry was classified as an "A"
general laborer by her union, with experience in the
construction business dating from 1972. The Human Rights
Commission found that she had been thoroughly apprenticed,
had a variety of experience in construction work, grade
setting, pipe laying, the use of common hand tools, and that
she met the qualifications demanded by the positions of
concrete pipe layer and general laborer.
On ~ p r i l24, 1984, Freese was dispatched by her union to
do pipe-laying work for Berry at its request and she began
work on ~ p r i l 25, 1984. She worked laying heavy concrete
pipe for three days and on April 27, 1984, she was discharged
and given a separation notice stating she was not a skilled
concrete pipe layer, had unsatisfactory production, but was
eligible for rehire for other work than back fill and pipe
work.
On August 21, 1984, Berry requested the union to
dispatch two general laborers to the same construction
project and Freese was dispatched as one of those laborers.
She worked for three days as a general laborer, but including
work as a pipe layer, from August 22, 1984 through August 24,
1984 when again she was terminated for "unsatisfactory work."
The om mission found that both discharges were illegal,
and that the first was connected to the second. It
calculated that Freese was entitled to back pay for a total
of 127 eight-hour working days, or $11,755.12. gain st this
sum was an offset for wages Freese received at other jobs in
the sum of $7,024.87. The om mission awarded her the net of
$4,730.25, including prejudgment interest to the date of
judgment.
Berry, on appeal to the ~istrictCourt, and now in this
Court, attacks the award of back pay on the grounds that the
testimony of one Terry Erhardt should not have been admitted
by the hearings examiner, because Erhardt's name was not
listed at the pre-hearing conference as a witness for Freese
and that Erhardtls exhibit should also not have been
admitted. Berry also contends that the hearing examiner
imposed the wrong burden of proof on Berry with respect to
the back wages, and that the amount of back wages was
improperly calculated by the hearing examiner and by the
Human Rights Commission because of the limited days for which
concrete pipe work was available on the construction project.
Berry contends that counsel for Freese had spoken to Ms.
Erhardt a year before the hearing and was familiar with the
information Ms. Erhardt had relating to her claim, but failed
to identify this person as a witness until the Friday before
the Monday hearing. The significance of Ms. Erhardt's
testimony is that she testified as to the type of job for
which Freese was called out from the union hall to work and
whether Berry required pipe laying or general labor. Berry
relies on Workman v. McIntyre Construction Company (1980),
190 Mont. 5, 617 P.2d 1281, wherein this Court held that a
trial court abuses its discretion in admitting an exhibit
when the party offering the exhibit fails to give fair notice
of its intent to offer the exhibit. In brief Berry claims
that its counsel did not interview Ms. Erhardt because Freese
did not list her as a witness that Freese would call at the
hearing to support her claim.
This contention is remarkable because Ms. Erhardt had
been listed by Berry as one of its own witnesses on the
pre-hearing order. When counsel for Berry informed counsel
for Freese that Berry did not intend to call Ms. Erhardt as a
witness, counsel for Freese thereupon decided to call Erhardt
as her witness. The exhibit, upon which Ms. Erhardt
testified, consisted of a business record kept in the
ordinary course of business in the union office which was
used to corroborate testimony regarding Freese1s prior
experience and job calls from the union. The objection made
by Berry to the introduction of the exhibit was only that the
records were repetitious.
The ~istrictCourt held that under those facts, Workman
did not apply, as Berry could not have been surprised by the
testimony of a person whom the employer had listed as one of
its own witnesses. We also find no merit in this
contention. The testimony of Erhardt and the exhibit were
properly admitted.
As to the amount of back pay awarded to Freese, Berry
contends that under the record, she was entitled at most to
27 eight-hour days of employment in the total sum of
$2,499.12. Berry makes this argument because it contends
that the only work for which she had been called out by Berry
was to do concrete pipe-laying work and that no more than
eight days of such work was available to her on this
construction project after her termination. The Commission,
however, found through its hearing examiner, that on the
second occasion she had been called out for general labor,
but had been assigned to concrete pipe laying and that she
was qualified both for the positions of concrete pipe layer
and general laborer. The Commission therefore calculated the
amount of days of availability for both types of labor and
based its award of back pay on that number of days.
Berry contends, however, that the Commission improperly
imposed a burden of proof upon Berry with respect to back pay
because the commission reasoned:
In order to establish a briefer period [for an
award of back pay] the respondent [Berry] has the
burden of showing by clear and convincing evidence
that the charging party [Freese] would not have
been employed for the entire term of the project
even absent the discriminatory treatment.
Freese contends, and we agree, that the Montana Human
Rights Act is closely modeled after federal law and that we
follow federal case law interpreting federal discrimination
law in applying the Kontana Human Rights Act. Martinez v.
.
Yellowstone County Welfare Department (Mont 1981) , 626 P. 2d
242. Under federal law, a charging party's back pay period
may be reduced if he or she would have been unavailable for
employment due to nondiscriminatory reasons and therefore
would not have been able to earn the amounts claimed in any
event. - Larson, - Employment ~iscrimination (ed. 1988) 5
A. 2
55.37 (a)(iii). See also Albermarle Paper Company v. Moody
(1975), 422 U.S. 405, 45 L.Ed.2d 280, 95 S.Ct. 2362; Dolan v.
School ~istrictNo. 10, Deer Lodge County (1981), 195 Mont.
340, 636 P.2d 825.
In the Court of Appeals for the Ninth Circuit, it has
been held that once a charging party has established a prima
facie case of discrimination and established what is
contended to be the damages resulting from this
discrimination, the burden then shifts to the defendant to
prove by clear and convincing evidence that a lesser amount
is proper. Marotta v. Usery ( ~ i n t h~ i r . , 1980), 629 F.2d
615; Ostroff v. Employment Exchange Inc. ( ~ i n t h i r . ,19821,
~
683 F.2d 302; Nanty v. Barrows Co. ( ~ i n t h i r . ,1981), 660
~
F.2d 1327.
Under the findings of the Commission, Freese established
a prima facie case that general labor was available for 127
days and that she was eligible and capable of doing that kind
of work. Once a prima facie case was established, the burden
then fell upon the employer to show that nondiscriminatory
reasons existed to reduce her claim of back pay. Berry's
argument here is that the back pay should have been
calculated only on the basis of the availability of concrete
pipe-laying work. However, the Commission found that she was
called out not only for concrete laying work but for general
labor as well. Berry also claims that, through Ms. Erhardt,
the employer could have produced testimony to show that there
were 65 other laborers available through the union hall to
fill the job required by Berry. However, this argument does
not take into account the illegal terminations of Freese by
Berry nor the fact that Ms. Erhardt was as available to Berry
for such evidence as she was to Freese.
The District Court properly noted in this case that the
standards for judicial review of a determination by an
administrative agency are set forth in 5 2-4-704, MCA; and
that under Harris v. Bauer (1988), 45 St.Rep. 147, 151, 749
P.2d 1068, 1071 and Johnson v. Bozeman School District No. 7
(1987), 44 St.Rep. 531, 734 P.2d 209, findings of fact by an
administrative agency are subject to the "clearly erroneous"
standard of review and conclusions of law are subject to the
"abuse of discretion" standard of review. On this appeal, we
find no basis, applying the standard of review either for
findings of fact or for conclusions of law, to reverse the
amount of back pay found by the Human ~ i g h t s~omrnissionand
affirmed by the ~istrictCourt. We therefore affirm.
We Concur: