No. 04-352
IN THE SUPREME COURT OF THE STATE OF MONTANA
2006 MT 129
ANGELA STRINGER-ALTMAIER,
Plaintiff and Appellant,
v.
FRED HAFFNER, JANET HAFFNER,
d/b/a GOOD TIME CHARLIE’S RESTAURANT,
R & R CASINO, and CODY BILL’S STEAKHOUSE,
Defendants and Respondents.
APPEAL FROM: The District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause No. DDV 2003-069(a),
Honorable Thomas M. McKittrick, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Elizabeth A. Best, Best Law Offices, P.C., Great Falls, Montana
For Respondents:
Jean E. Faure, Jason T. Holden, Church, Harris, Johnson & Williams,
P.C., Great Falls, Montana
Submitted on Briefs: November 4, 2004
Decided: June 13, 2006
Filed:
__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
¶1 Angela Stringer-Altmaier (Angela) appeals an Order of the District Court for the
Eighth Judicial District, Cascade County, affirming a decision of the Montana Human Rights
Commission (the HRC) that Fred Haffner (Fred) and his mother, Janet Haffner-Lynn (Janet),
did not discriminate against her. Angela appeals. We reverse and remand for further
proceedings consistent with this Opinion.
¶2 We address the following issue on appeal: Whether the District Court erred in
affirming the HRC’s reversal of the Final Agency Decision.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 On January 29, 2001, Angela filed three Complaints with the HRC. In her
Complaints, Angela alleged that Fred and Janet, doing business as the R&R Lounge and
Casino; Good Time Charlie’s Restaurant; and Cody Bill’s Steakhouse (collectively referred
to hereinafter as “Respondents”), discriminated against Angela in her employment on the
basis of sex when she was subjected to a sexually hostile and offensive work environment.
Janet owned all three businesses and Fred managed some or all of the businesses for Janet.
Angela alleged in her Complaints that Fred sexually harassed her and that when she objected
to this hostile work environment, Janet forced her to quit.
¶4 Angela worked from 6:00 p.m. until 2:00 a.m. as a bartender for Respondents. She
claimed that she specifically requested this evening shift when she was hired because she is a
single mother and the daycare and kindergarten schedule for her daughter required continuity
of care and transportation. Angela alleged in her Complaint that after she complained to
2
Janet about Fred’s conduct, Janet changed the work schedule and switched Angela to day
shifts. According to Angela, when she called Janet to protest the change in shifts and to
inform Janet that she could not work those shifts because of her child, Janet told her that if
she couldn’t work the day shifts she would have to quit.
¶5 On July 30, 2001, after investigating Angela’s Complaints, the HRC issued a finding
of reasonable cause to believe that the Complaints had merit. The HRC consolidated the
three cases and a contested case hearing was conducted by a Hearing Examiner on April 8-
11, 2002. The Hearing Examiner issued a Final Agency Decision on July 19, 2002, wherein
he found the following facts:
9. In 1990, ten years before [Angela] came to work for [Janet], three
former employees of the business filed Human Rights Act complaints of sex
discrimination, alleging that [Fred] had subjected them to harassment and
hostile treatment because of their sex (female). After a 1991 consolidated
contested case hearing on all three complaints, the hearing officer issued a
proposed commission decision finding against two of the charging parties and
in favor of the third. . . . The cases settled before the Commission acted upon
the proposed decision. . . .
....
11. In the course of his work in the business, [Fred] frequently would
visit with customers and employees in the bar. He often embarked upon sexual
flirtations with women, sometimes touching them. He made suggestive
comments about individuals’ attire or bodies. He sometimes used sexually
explicit words to describe individuals. He sometimes displayed sexually
suggestive objects (such as thong underwear with the business’ name on it) in
the workplace.
....
13. In December of 2000, [Fred] told [Angela] she was required to
wear an elf costume to work for Christmas. [Angela] resisted, because she
thought the costume was unflattering and humiliating. [Fred] insisted that she
not only wear it, but try it on for him. After continued resistance, she agreed to
try on the costume, because he was one of her supervisors. Because she was
already wary of [Fred], she agreed with a fellow employee, Rochelle Johnson
3
Spencer, that if Spencer did not see [Angela] within five minutes after
[Angela] went downstairs with [Fred], [Spencer] should come looking for her.
[Fred] took [Angela] downstairs, and gave her a costume to try on in the
bathroom. While she was in the bathroom, he stayed outside the door asking
her how it fit, and asking her to come out. Very uncomfortable, [Angela]
finally emerged from the bathroom. At that point, [Fred] began touching and
feeling the costume, getting down on his knees and stroking first the outside of
[Angela’s] legs in the costume (tightly fitting tights) and then the insides of
[Angela’s] legs. [Angela] was “frozen” and did not know what to do. At that
point, Spencer came downstairs and [Fred] stopped touching [Angela] and got
to his feet.
....
20. [Janet] redid the work schedule and changed [Angela] to day shifts.
[Janet] rationalized this change as necessary because [Angela’s] family was
too frequently in the bar and casino when [Angela] was working, because
[Angela] was not performing acceptably, because [Angela’s] family included
“undesirables,” because [Angela] herself had faced criminal charges and
because [Angela] required more training. In fact, [Janet] changed [Angela’s]
shift as the first step in a plan to either force [Angela] to quit or to fire here
because she had complained about [Fred]. [Janet] also changed the schedules
for a number of other employees at the same time. Those changes did not
transform her motives for changing [Angela’s] schedule.
¶6 Based in part on these facts, the Hearing Examiner determined that Respondents
illegally discriminated against Angela by subjecting her to sexual harassment in her
employment in a continuing course of conduct. The Hearing Examiner awarded Angela
$1050.83 for lost wages and prejudgment interest, as well as $7000.00 for emotional distress.
¶7 Respondents appealed the Hearing Examiner’s decision to the Human Rights
Commission contending that this case should have been pleaded as a retaliation case.
Respondents did not dispute the Findings of Fact in the Final Agency Decision, instead, they
contested the application of the law to those findings. On December 30, 2002, after listening
4
to argument and reviewing the record, the HRC issued its Order Reversing Final Agency
Decision.
¶8 Angela petitioned for judicial review. On April 15, 2004, the District Court entered
an Order affirming the HRC’s determination. Angela then appealed to this Court.
STANDARD OF REVIEW
¶9 This Court reviews a district court’s conclusions of law to determine whether the
district court’s interpretation of the law is correct. Connell v. State, Dept. of Social Services
(1997), 280 Mont. 491, 494, 930 P.2d 88, 90 (citing Steer, Inc. v. Department of Revenue
(1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603).
DISCUSSION
¶10 Whether the District Court erred in affirming the HRC’s reversal of the Final Agency
Decision.
¶11 In its Final Agency Decision, the Hearing Examiner concluded that Respondents
unlawfully altered the terms of Angela’s employment by making sexual harassment a
condition of her employment. Angela contends on appeal that the HRC and the District
Court erred by reversing the Hearing Examiner’s decision after they improperly reweighed
the facts. Angela argues that Montana law prohibits the HRC from rejecting or modifying
the Hearing Examiner’s findings of fact unless it states with particularity that those findings
were not based on competent substantial evidence. Here, Angela claims that those findings
were, indeed, based on competent substantial evidence.
5
¶12 Angela also argues that the HRC and the District Court erred in concluding that this
case should have been, but was not, pleaded as a retaliation claim. Angela maintains that
retaliation was pleaded, but the Hearing Examiner applied the law to the facts as he found
them and concluded that the facts proved a discriminatory hostile work environment claim.
¶13 Respondents contend that Angela did not appeal the Hearing Examiner’s finding and
conclusion that Angela failed to timely plead a retaliation claim. Respondents maintain that
because Angela argues for the first time on appeal that she properly pleaded a retaliation
claim, she has waived her right to argue that the Hearing Examiner was incorrect.
¶14 Respondents also maintain that the Hearing Examiner found that Fred’s conduct did
not create a hostile work environment, rather, it was Janet’s reaction to Angela’s complaint
that created the hostile work environment. Consequently, Respondents contend that because
Janet’s conduct was not driven by Angela’s sex, it cannot be used to support a claim of a
hostile work environment.
¶15 We do not address the issue of whether Angela failed to properly plead a retaliation
claim as we find Angela’s claim regarding a hostile work environment dispositive of this
case.
¶16 Title VII of the Civil Rights Act of 1964 makes it “an unlawful employment practice
for an employer . . . to discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual’s race, color,
religion, sex, or national origin.” Beaver v. DNRC, 2003 MT 287, ¶ 29, 318 Mont. 35, ¶ 29,
78 P.3d 857, ¶ 29 (quoting 42 U.S.C. § 2000e-2(a)(1)).
6
¶17 Montana law also prohibits employment discrimination based on sex. See § 49-2-
303(1), MCA. Because the Montana Human Rights Act was closely modeled after Title VII,
we have determined that “reference to federal case law is both appropriate and helpful” in
construing the Montana Human Rights Act. Harrison v. Chance (1990), 244 Mont. 215, 221,
797 P.2d 200, 204 (citing Johnson v. Bozeman School Dist. No. 7 (1987), 226 Mont. 134,
139, 734 P.2d 209, 212).
¶18 The United States Supreme Court has held that under Title VII, “[w]ithout question,
when a supervisor sexually harasses a subordinate because of the subordinate’s sex, that
supervisor ‘discriminate[s]’ on the basis of sex.” Harrison, 244 Mont. at 221, 797 P.2d at
204 (quoting Meritor Savings Bank, FSB v. Vinson (1986), 477 U.S. 57, 64, 106 S.Ct. 2399,
2404, 91 L.Ed.2d 49). This Court similarly held in Harrison that sexual harassment is sexual
discrimination under the Montana Human Rights Act.
When sexual harassment is directed at an employee solely because of gender,
the employee is faced with a working environment fundamentally different
from that faced by an employee of the opposite gender. That difference
constitutes sexual discrimination in employment.
Harrison, 244 Mont. at 221, 797 P.2d at 204 (internal citations omitted).
¶19 There are two forms of sexual harassment that violate Title VII’s prohibition against
workplace discrimination: (1) harassment that involves the conditioning of concrete
employment benefits on sexual favors (quid pro quo); and (2) harassment that creates a
hostile or offensive work environment. Meritor, 477 U.S. at 62, 106 S.Ct. at 2403.
7
¶20 The United States Equal Employment Opportunity Commission (the EEOC)
determined long ago that “Title VII affords employees the right to work in an environment
free from discriminatory intimidation, ridicule and insult.” Meritor, 477 U.S. at 65, 106 S.Ct.
at 2405. In 1980, the EEOC promulgated the following guidelines in identifying sexual
harassment:
Unwelcome sexual advances, requests for sexual favors, and other verbal or
physical conduct of a sexual nature constitute sexual harassment when
(1) submission to such conduct is made either explicitly or implicitly a term or
condition of an individual’s employment, (2) submission to or rejection of such
conduct by an individual is used as the basis for employment decisions,
affecting such individual, or (3) such conduct has the purpose or effect of
unreasonably interfering with an individual’s work performance or creating an
intimidating, hostile, or offensive working environment.
Harrison, 244 Mont. at 221, 797 P.2d at 203-04 (quoting 29 C.F.R. § 1604.11(a)).
¶21 Furthermore, in Harris v. Forklift Systems, Inc. (1993), 510 U.S. 17, 23, 114 S.Ct.
367, 371, 126 L.Ed.2d 295, the United States Supreme Court held that
whether an environment is “hostile” or “abusive” can be determined only by
looking at all the circumstances. These may include the frequency of the
discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it reasonably interferes
with an employee’s work performance. The effect on the employee’s
psychological well-being is, of course, relevant to determining whether the
plaintiff actually found the environment abusive. But while psychological
harm, like any other relevant factor, may be taken into account, no single
factor is required.
¶22 In the case sub judice, Angela needed to satisfy all of the following elements to prove
her claim of a hostile work environment:
1. she was subjected to verbal or physical conduct of a sexual nature;
2. the conduct was unwelcome; and
8
3. her workplace was permeated with discriminatory intimidation that was
sufficiently severe or pervasive to alter the conditions of her employment and
create an abusive working environment.
Meritor, 477 U.S. at 65, 106 S.Ct. at 2404-05. The Hearing Examiner found in Angela’s
favor and determined that
[Fred] did subject [Angela] to verbal and physical conduct of a harassing
nature and the conduct was unwelcome. However, until [Angela] complained
to [Janet], the conduct was borderline with regard to whether it was severe or
pervasive enough to alter the conditions of [Angela’s] employment and create
a hostile work environment . . . . The circumstance that created the hostile
environment was [Janet’s] reaction to the complaint. [Emphasis added.]
¶23 In reversing the Hearing Examiner’s decision, the HRC determined that retaliation or
retaliatory conduct by Janet was not the type of conduct referred to in the three-prong test for
hostile work environment and that while the Hearing Examiner’s findings may support a
conclusion that Janet’s conduct was retaliatory, the findings do not support a conclusion that
Janet’s conduct was driven by Angela’s sex. Consequently, the HRC determined that Janet’s
conduct could not be used to support the elements in a claim for hostile work environment.
¶24 Respondents are correct in asserting that to be actionable under Title VII and the
Montana Human Rights Act, sexual harassment must be because of gender. Oncale v.
Sundowner Offshore Services (1998), 523 U.S. 75, 79-80, 118 S.Ct. 998, 1002, 140 L.Ed.2d
201; Harrison, 244 Mont. at 221, 797 P.2d at 204. The express language contained in Title
VII and the MHRA only makes it unlawful employment practice for an employer to
discriminate “because of . . . sex.” 42 U.S.C. § 2000e-2(a)(1); § 49-2-303(1)(a), MCA. Or,
9
as Respondents point out, there can be no sexual harassment where actions are taken
regardless of “gender” or “sex.”
¶25 However, Respondents are incorrect when they maintain that Angela must use only
evidence of Fred’s conduct toward her to prove her claim for a hostile work environment.
Respondents, the HRC and the District Court take too narrow a view when they conclude that
Janet’s conduct could not have been premised upon sex. The fact is that Angela was
subjected to a hostile work environment by virtue of her sex and Janet’s refusal to confront
that problem along with her statement that Angela should put up with it, is sufficient to
impose liability on Janet as the employer. To hold otherwise simply ignores the vicarious
liability that Janet must suffer for failure to remedy the problem.
¶26 In Faragher v. City of Boca Raton (1998), 524 U.S. 775, 807, 118 S.Ct. 2275, 2292,
141 L.Ed.2d 662, the United States Supreme Court adopted the following holding “to
accommodate the principle of vicarious liability for harm caused by misuse of supervisory
authority, as well as Title VII’s equally basic policies of encouraging forethought by
employers and saving action by objecting employees.” To that end the Supreme Court held
that
[a]n employer is subject to vicarious liability to a victimized employee for an
actionable hostile environment created by a supervisor with immediate (or
successively higher) authority over the employee. When no tangible
employment action is taken, a defending employer may raise an affirmative
defense to liability or damages, subject to proof by a preponderance of the
evidence. . . . No affirmative defense is available, however, when the
supervisor’s harassment culminates in a tangible employment action, such as
discharge, demotion, or undesirable reassignment. [Emphasis added.]
10
Faragher, 524 U.S. at 807-08, 118 S.Ct. at 2292-93 (citing Burlington Industries, Inc. v.
Ellerth (1998), 524 U.S. 742, 762-63, 118 S.Ct. 2257, 2269, 141 L.Ed.2d 633).
¶27 Similarly, this Court has previously held that “culpable acts of continuing
discrimination in the work place primarily [take] the form of the employer’s failure to
seriously and adequately investigate and discipline [the harasser] following the assault and
the employer’s subsequent failure to protect [the victim] on the job.” Benjamin v. Anderson,
2005 MT 123, ¶ 54, 327 Mont. 173, ¶ 54, 112 P.3d 1039, ¶ 54 (emphasis added).
¶28 In this case, Fred’s harassment culminated in a tangible employment action—an
“undesirable reassignment” to a schedule that Angela was unable to work because of her
child, thereby forcing Angela to quit. Moreover, when Angela complained to Janet about
Fred’s behavior, rather than disciplining Fred or attempting to protect Angela on the job,
Janet told Angela that as a bartender Angela would need to be able to deal with sexual
comments and that people misunderstood Fred because he is overly friendly. By failing to do
anything to change Fred’s behavior, Janet created a workplace permeated with discriminatory
intimidation that was sufficiently severe or pervasive to alter the conditions of Angela’s
employment and create an abusive working environment. Beaver, ¶ 30 (citing Meritor, 477
U.S. at 67, 106 S.Ct. at 2405).
¶29 Based on the foregoing, we conclude that ¶ 23 of the Hearing Examiner’s Findings of
Fact is dispositive of this case:
[Janet] did not tolerate a female employee criticizing her son’s behavior
toward women. Because of her refusal to consider any complaints against
[Fred], and her hostile acts toward [Angela] because she complained, [Janet]
11
made it a condition of employment that [Angela] endure [Fred’s] conduct
without complaining or resisting. [Janet] had notice of prior complaints
regarding sexual harassment of female employees by [Fred]. She rejected all
such complaints. [Janet] does not believe that her son ever sexually harassed
anyone at any time, or that he ever would. [Fred’s] conduct toward [Angela]
and around her was offensive, but it was [Janet’s] response to [Angela’s]
complaint that created the hostile environment that [Angela] had feared.
[Emphasis added.]
¶30 Accordingly, we hold that the District Court erred in affirming the HRC’s reversal of
the Final Agency Decision and we reverse and remand for further proceedings consistent
with this Opinion.
¶31 Reversed and remanded.
/S/ JAMES C. NELSON
We Concur:
/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE
12