Jones v. All Star Painting Inc.

• Decision Date: 03 April 2018
• Docket Number: DA 17-0383
• Citation: 415 P.3d 986,2018 MT 70,391 Mont. 120
• Parties: Danielle JONES, Petitioner, Appellant and Cross-Appellee, v. ALL STAR PAINTING INC., Respondent, Appellee and Cross-Appellant.
• Court: Montana Supreme Court

391 Mont. 120

415 P.3d 986

2018 MT 70

Danielle JONES, Petitioner, Appellant and Cross-Appellee,

v.ALL STAR PAINTING INC., Respondent, Appellee and Cross-Appellant.

DA 17-0383

Supreme Court of Montana.

Submitted on Briefs: January 10, 2018

Decided: April 3, 2018

For Appellant: Ryan Shaffer, Robert L. Stepans, Meyer, Shaffer, & Stepans, PLLP, Missoula, Montana

For Appellee: T. Thomas Singer, Axilon Law Group, PLLC, Billings, Montana

Justice Beth Baker delivered the Opinion of the Court.

¶ 1 Danielle Jones worked as a house painter for All Star Painting, Inc. during the summer of 2014. Two months after quitting her job, she filed a complaint with the Montana Human Rights Bureau (HRB), alleging that the company's owner, Norman Hodges, had sexually harassed her at work. After a contested hearing, the Hearing Officer granted judgment in favor of All Star Painting. Both the Human Rights Commission (HRC) and First Judicial District Court, Lewis and Clark County, upheld the Hearing Officer's decision. On appeal to this Court, Jones argues that the District Court erred in upholding the HRB's decision because it was based on an incorrect application of the rules of evidence. She further appeals the District Court's order dismissing Hodges as a respondent to the complaint. All Star Painting cross-appeals the District Court's denial of its motion for attorney fees.

¶ 2 We reverse in part and affirm in part. Given our resolution of Jones's appeal, we do not reach the cross-appeal issue of attorney fees.

PROCEDURAL AND FACTUAL BACKGROUND

¶ 3 Hodges is the sole owner of All Star Painting, a business that paints the exteriors of houses for private residential customers. The company runs one painting crew with three or four crew members. Hodges hires the crew members. Jones worked for All Star Painting for approximately six weeks from the end of July 2014 to the first or second week of September 2014. Marvin Thomas was the crew supervisor during the time Jones worked for All Star.

¶ 4 Two months after leaving her position at All Star Painting, Jones filed a complaint with the HRB alleging that All Star Painting discriminated against her on the basis of gender. She claimed that Hodges created a hostile work environment by subjecting her to sexual harassment in violation of § 49-2-303, MCA. Jones alleged that Hodges began harassing her on her second or third day of work and that the harassment occurred on a nearly daily basis.

¶ 5 A Hearing Officer presided over a contested hearing in November 2015. Both Jones and Hodges testified at the hearing, and each called additional witnesses. Jones testified that Hodges made comments of a sexual nature and touched her on several occasions without her permission or consent at project sites. She testified that on one occasion Hodges put her paycheck down the back of her pants and into her underwear while she was bending over folding a tarp. She testified that she quit her job with All Star Painting after Hodges thrust a chicken bone in and out of the back of her pants against her skin as she sat on the ground eating lunch.

¶ 6 In addition to her own testimony, Jones called five other witnesses at the hearing. All Star repeatedly objected to their testimony as hearsay. The Hearing Officer allowed the witnesses to testify, explaining that although she was allowing "some leeway," if the witnesses testified to something they had not personally observed she would "take it for what it's worth."

¶ 7 Jones's husband, Ryan Jones, testified about his observations of Jones during the time she was working for All Star. He described Jones as "a lot more irritable," "very sensitive and upset," and "distraught." Her roommate at the time, Dustin Ritts, testified that while Jones was working for All Star she "was very distraught and unhappy with the way she was being treated at work" and was "mad constantly, complaining about how she's being treated." He stated that Jones did not complain about other jobs she had while living with him. Jones's father-in-law, Jeffrey Jones, testified that Jones was upset about inappropriate behavior at work while she was employed by All Star. Stacey Hemming, an insurance agent who sold disability policies to Jones and Thomas when they attempted to start a painting business together, explained that she was under the impression from both Thomas and Jones that there was harassing or inappropriate behavior toward women occurring at All Star.

¶ 8 Finally, Jones called the HRB investigator who had initially reviewed her complaint, Dennis Unsworth. Unsworth testified that Hodges told him that All Star had never had a complaint with the Better Business Bureau (BBB). He testified that, contrary to Hodges's denial, Unsworth found a complaint that had been lodged with the BBB only a few months before and that Hodges had responded to the complaint.

¶ 9 All Star called fifteen witnesses at the hearing, including Hodges. Hodges denied Jones's allegations of sexual harassment and claimed that the incidents she described did not occur. Nine of All Star's witnesses were homeowners from seven separate painting projects All Star had completed during the summer of 2014. Only four of the homeowners from three painting projects recognized Jones. None of the homeowners witnessed any inappropriate conduct by Hodges toward Jones. All Star also called three character witnesses—Maddy Main, Patricia Berlanga, and Claire Oravsky—who knew Hodges through dance classes he had taken. All three testified over Jones's objection about Hodges's respectful treatment of women and his character for truthfulness.

¶ 10 Thomas testified on behalf of All Star. He stated that he had not witnessed any inappropriate conduct toward Jones while working for All Star and that Jones had not complained of inappropriate conduct to him.

Thomas's testimony contradicted what he previously told Unsworth. Further, Hodges testified that Thomas had lied in his application for unemployment benefits when he quit working for All Star in 2014. Thomas returned as the crew supervisor for All Star for the 2015 season and testified that he planned to work for All Star during the 2016 season.

¶ 11 All Star also called Regina Robinson to testify. Robinson was Jones's supervisor at Yellowstone River of Care where Jones worked as a Certified Nursing Assistant (CNA) after leaving All Star Painting. Robinson testified that Jones said that she had a CNA license in Arizona, but that Jones never provided her with proof of the license. Robinson testified that she believed Jones was dishonest about her CNA license.

¶ 12 In her written decision, the Hearing Officer explained that she admitted and considered the testimony from three of All Star's witnesses—Main, Berlanga, and Oravsky—and three of Jones's witnesses—Ryan Jones, Jeffrey Jones, and Ritts—only to the extent it addressed Hodges's and Jones's character for truthfulness. She then explained that evidence presented at the hearing called into question the credibility of both Jones and Hodges: Jones was not truthful about whether she had a CNA license and Hodges was not truthful about whether the BBB had received complaints about All Star Painting. She found Thomas's testimony to be wholly unreliable and not credible, and she gave his testimony no consideration. She determined, however, that the testimony of the homeowners bolstered Hodges's account: none of the homeowners who testified had witnessed any inappropriate conduct, and Jones had told the HRB that two homeowners had witnessed the harassment. On the basis of the homeowners' testimony, she concluded that Hodges's testimony was more credible than Jones's testimony. She determined that Jones had not met her burden of persuasion because "Jones'[s] uncorroborated testimony regarding Hodges'[s] actions was not sufficient to prove a prima facie case of discrimination based on gender." She granted judgment in favor of All Star.

¶ 13 The HRC affirmed the Hearing Officer's decision, and Jones filed a petition for judicial review. The District Court dismissed Jones's petition for judicial review, affirming the judgment in favor of All Star Painting and dismissing Hodges from the action. It denied All Star's motion for attorney fees.

STANDARDS OF REVIEW

¶ 14 The Montana Administrative Procedures Act (MAPA) governs actions before the HRC. Blaine Cnty. v. Stricker , 2017 MT 80, ¶ 16, 387 Mont. 202, 394 P.3d 159. MAPA provides the standard of judicial review of agency decisions:

The court may not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because:

(a) the administrative findings, inferences, conclusions, or decision are:

(i) in violation of constitutional or statutory provisions;

(ii) in excess of the statutory authority of the agency;

(iii) made upon unlawful procedure;

(iv) affected by other error of law;

(v) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record;

(vi) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

Section 2-4-704(2), MCA. Under this standard, a reviewing court may not substitute its judgment for that of the administrative agency. The court instead reviews the whole record to determine whether the agency's findings of fact are clearly erroneous and whether its determinations of law are correct. Arlington v. Miller's Trucking, Inc. , 2015 MT 68, ¶ 10, 378 Mont. 324, 343 P.3d 1222 ; Total Mech. Heating & Air Conditioning v. Emp't Relations Div. , 2002 MT 55, ¶ 23, 309 Mont. 84, 50 P.3d 108. The same standard of review applies to both the district court's review of the agency decision and this Court's review of the district court's decision. Blaine Cnty. , ¶ 16 ; Arlington , ¶ 10. A finding is deemed clearly...