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No. 99-270
IN THE SUPREME COURT OF THE STATE OF MONTANA
2000 MT 267
ROGER ALLISON,
Plaintiff and Appellant,
v..
TOWN OF CLYDE PARK and LOIS BAILEY,
ALICE SARRAZIN, MARY SARRAZIN,
GENNY ADAMS and TRACEY FREMONT,
Defendants and Respondents.
APPEAL FROM: District Court of the Sixth Judicial District,
In and for the County of Park,
The Honorable Wm. Nels Swandal, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Magdalena C. Bowen; Bowen & Parker, Bozeman, Montana
For Respondents:
Todd Hillier, Leanne M. Schraudner; Schraudner & Hillier, Bozeman, Montana
Submitted on Briefs: April 27, 2000
Decided: October 12, 2000
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Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 Roger Allison (Allison) brought an action in the Sixth Judicial District Court, Park
County, for employment discrimination. The defendants (the Town) moved for directed
verdicts against Allison on the sex and age discrimination claims. The District Court
granted the motion for the sex discrimination claim and denied the motion for the age
discrimination claim. The jury returned verdicts against Allison on his disability and age
discrimination claims. Allison now appeals several of the court's actions.
¶2 We affirm in part and reverse in part.
¶3 Allison raises the following issues on appeal:
¶4 1. In light of the evidence presented at trial, did the District Court err in declining to
give the jury a "direct evidence" instruction?
¶5 2. Did the District Court err in precluding Allison from introducing evidence at trial in
support of allegations that the Town violated the Governmental Code of Fair Practices?
¶6 3. Did the District Court err in directing a verdict on Allison's sex discrimination claim?
Factual and Procedural Background
¶7 Allison suffers from Chronic Obstructive Pulmonary Disease which requires that he use
an oxygen tank at all times. In 1996, the Town advertised for a town clerk whose duties
were to include such activities as attending meetings, making bank deposits, and getting
mail. The advertisement mentioned no specific physical requirements. Allison applied for
the position and interviewed with the town council. After the four members of the town
council interviewed each of the three applicants, the council unanimously voted to hire
Kris Denton.
¶8 Prior to the interviews, the council discussed the applicants' general qualifications. The
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council specifically discussed Allison's health and his ability to perform the clerk's duties.
When asked about his health during the interview, Allison assured the council that his
health would not conflict with performance of the clerk's duties. Council members Mary
Sarrazin and Tracey Fremont testified that after this assurance, the council did not
consider Allison's health in its hiring decision. Council member Alice Sarrazin testified
contradictorily both that her concern with Allison's health might have affected her hiring
decision, and that Allison's age and disability played no role in her decision.
¶9 Allison brought this action against the Town of Clyde Park, council members, and the
mayor alleging employment discrimination under the Human Rights Act (the Act). Five
days before trial, Allison attempted to raise a new theory based on alleged violations of the
Governmental Code of Fair Practices (GCFP). The Town moved that the court prohibit
Allison from presenting the new theory at trial, arguing that the new theory would be
prejudicial as it had no notice of and had prepared no defense to allegations of violations
of the GCFP. The District Court granted the Town's motion and precluded Allison from
raising the new theory of violations of the GCFP at trial. At the conclusion of Allison's
case-in-chief, the District Court granted the Town's motion for a directed verdict on
Allison's sex discrimination claim, but declined to direct a verdict on the age
discrimination claim. After being instructed to decide whether the Town had proven a
legitimate, non-discriminatory and non-pretextual reason for its decision not to hire
Allison, the jury returned a verdict against Allison on both the age and the disability
discrimination claims. Allison now appeals.
Issue 1
¶10 In light of the evidence presented at trial, did the District Court err in declining to give
the jury a "direct evidence" instruction?
Standard of Review
¶11 It is within a district court's discretion to decide how to instruct the jury, taking into
account the theories of contending parties. This Court will not overturn a district court for
instructions given to a jury without an abuse of discretion. Hall v. Big Sky Lumber &
Supply, Inc. (1993), 261 Mont. 328, 332, 863 P.2d 389, 392.
Discussion
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¶12 Allison argues that the District Court erred in refusing to instruct the jury regarding
"direct evidence" of a discriminatory motive for the hiring decision. We conclude that the
court appropriately declined to provide the jury with a "direct evidence" instruction.
¶13 An instruction based on the direct evidence standard provides that once the plaintiff
establishes a prima facie case, the defendant may defend by proving by a preponderance
of the evidence either: 1) that an unlawful motive played no role in the challenged action;
or 2) that the direct evidence was not credible and was not worthy of belief. Reeves v.
Dairy Queen, Inc., 1998 MT 13, ¶ 17, 287 Mont. 196, ¶ 17, 953 P.2d 703, ¶ 17. The
District Court refused Allison's direct evidence instruction and instead instructed the jury
that the Town could defend against the discrimination claims if it proved by a
preponderance of the evidence that it had a legitimate, non-discriminatory reason for its
hiring decision. In order to prevail under the District Court instruction Allison had to
prove that the non-discriminatory reason for the hiring decision was merely a pretext.
¶14 As we have previously held, a jury instruction based on the direct evidence standard is
appropriate only when "both parties agree on the employer's articulated reason . . . and the
only contested issue is whether the employer's action is illegal . . . . " Reeves, ¶18. In the
case at hand, the parties dispute the reason for the decision not to hire Allison. Allison
contends that the Town failed to hire him because of his physical disability. The Town
maintains the decision was made because Allison was not the most qualified applicant.
Testimony presented at trial provided support for both contentions.
¶15 Allison testified that Alice Sarrazin, the mayor, and the former clerk told him that his
health was a factor in the hiring decision. Mary Sarrazin and Tracey Fremont testified that
Allison's health was not considered at all in the council's hiring decision. Thus the record
clearly indicates the parties dispute the reason for the hiring decision. Because the parties
disagree on the reason for the decision not to hire Allison, we hold that the District Court
did not abuse its discretion in declining to provide the jury with an instruction based on the
direct evidence standard.
¶16 Additionally, Allison raises a mixed motive theory for the first time on appeal. Allison
urges this Court to recognize the "mixed motive" standard which applies when
employment decisions are a product of both lawful and unlawful motives. This Court has
very recently adopted the "mixed motive" analysis. Laudert v. Richland Co. Sheriff's
Dept., 2000 MT 218, ___ Mont. ___, 7 P.3d 386. However, in that case, the mixed motive
standard had been argued and applied in the administrative hearing. Rule 51, M.R.Civ.P.,
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explicitly requires that "[n]o party may assign as error the failure to instruct on any point
of law unless that party offers an instruction thereon." Allison attempts to assign error to
the District Court when Allison neither advanced a mixed motive theory nor offered a
mixed motive instruction in the trial court. Allison cannot now fault the District Court for
his own failure to offer an instruction on that theory.
Issue 2
¶17 Did the District Court err in precluding Allison from introducing evidence at trial in
support of allegations that the Town violated the Governmental Code of Fair Practices?
Standard of Review
¶18 We review a district court's discretionary rulings to determine whether the court
abused its discretion. Eagle Ridge Ranch Ltd. v. Park County (1997), 283 Mont. 62, 938
P.2d 1342.
Discussion
¶19 Allison filed a complaint in October, 1997, alleging that the Town violated the Act.
On February 19, 1999, only five days before trial, Allison presented his pretrial order
which included contentions that the Town had violated the GCFP. The Town moved the
court to preclude presentation of evidence at trial in support of the new allegations of
violations of the GCFP.
¶20 Rule 15(a), M.R.Civ.P., provides that a party may amend its pleadings by leave of
court and that "leave shall be freely given when justice so requires." While we have held
that Rule 15(a) is to be interpreted liberally so that the allowance of amendments is the
general rule and denial the exception, this does not mean that a court must automatically
grant a motion to amend. Stundal v. Stundal, 2000 MT 21, ¶ 13, 298 Mont. 141, ¶ 13, 995
P.2d 420, ¶ 13. We have also specifically held that amendments are not appropriate when
the party opposing the amendment would incur substantial prejudice. Peuse v. Malkuch
(1996), 275 Mont. 221, 227, 911 P.2d 1153, 1156 (citation omitted).
¶21 The District Court granted the Town's motion in limine to prohibit Allison from
raising the newly alleged violations of the GCFP at trial. Allison contends the District
Court erred because the legal obligations in the GCFP were not presented as a separate
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claim. Allison claims that he did not intend to amend the pleadings to add a new claim, but
rather intended the GCFP evidence as evidence of his claims under the Act. In support of
his argument that he did not seek to amend his pleadings, Allison cites to a case in which
the court allowed a party to amend the pleadings only two weeks before trial. The court in
that case allowed the amendment after finding that both parties had already been arguing
the newer theory for over a year, and the defendant would incur no prejudice. Montana
Rail Link v. Byard (1993), 260 Mont. 331, 338, 860 P.2d 121, 125. In this case, however,
the court noted that the Town had notice of Allison's new theory only five days before trial.
¶22 Characterizing the newly alleged violations of the GCFP as "evidence" does not alter
the fact that Allison attempted to raise a new theory five days before trial. The court ruled
that alleged violations of the GCFP and alleged violations of the Act are two distinct
causes of action. The court did not abuse its discretion when it ruled that the Town would
have been substantially prejudiced had the court allowed an amendment advancing a new
cause of action only five days before trial.
Issue 3
¶23 Did the District Court err in directing a verdict on Allison's sex discrimination claim?
Standard of Review
¶24 The standard of review relating to conclusions of law is whether the district court's
interpretation of law is correct. Carbon County v. Union Reserve Coal Co. (1995), 271
Mont. 459, 469, 898 P.2d 680, 686.
Discussion
¶25 The District Court granted the Town's motion for directed verdict against Allison on
the sex discrimination claim but allowed the jury to hear the age and disability
discrimination claims. Allison argues that the same evidence that the court held warranted
submission to the jury of the age discrimination claim also warranted submission of the
sex discrimination claim. The Town essentially agrees that the evidence supporting both
the sex and age discrimination claims was the same.
¶26 The Town contends that the District Court's decision to direct a verdict on the sex
discrimination claim is supported by the fact that all but one of the jurors voted against
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Allison on the age discrimination claim. However, the jury's final decision on the age
discrimination claim is irrelevant. The issue is whether the jury should have been offered
the opportunity to decide the sex discrimination claim.
¶27 As we have previously held, the courts should exercise the greatest self-restraint in
interfering with the constitutionally mandated processes of jury decisions. Ryan v. City of
Bozeman (1996), 279 Mont. 507, 510, 928 P.2d 228, 230 (citations omitted). Motions for
directed verdict, therefore, are properly granted only when there is a "complete absence"
of any evidence to warrant submission to the jury, such evidence and all inferences being
considered in the light most favorable to the party opposing the motion. Durden v. Hydro
Flame Corp., 1998 MT 47, ¶ 21, 288 Mont. 1, ¶ 21, 955 P.2d 160, ¶ 21.
¶28 At trial, Allison produced evidence that at least one of the council members had
considered the fact that the other job applicants were "younger girls" in her hiring
decision. Although the evidence presented in support of the sex discrimination claim may
be minimal, the District Court should have submitted the sex discrimination claim to the
jury, as it did the age discrimination claim. Because Allison presented some evidence of
sex discrimination at trial, we hold that the District Court incorrectly granted a directed
verdict on the sex discrimination claim. We reverse and remand for a trial on the sex
discrimination claim.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ J. A. TURNAGE
/S/ JIM REGNIER
/S/ JAMES C. NELSON
/S/ WILLIAM E. HUNT, SR.
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