Mont. State Univ.-N. v. Bachmeier

• Decision Date: 03 February 2021
• Docket Number: DA 19-0692
• Parties: MONTANA STATE UNIVERSITY-NORTHERN, Petitioner and Appellant, v. Randy BACHMEIER, Respondent, Appellee, and Cross-Appellant.
• Court: Montana Supreme Court

403 Mont. 136

480 P.3d 233

2021 MT 26

MONTANA STATE UNIVERSITY-NORTHERN, Petitioner and Appellant,

v.Randy BACHMEIER, Respondent, Appellee, and Cross-Appellant.

DA 19-0692

Supreme Court of Montana.

Submitted on Briefs: September 23, 2020

Decided: February 3, 2021

For Appellant: Helen C. Thigpen, Acting Chief Counsel, Office of the Commission of Higher Education, Helena, Montana, Elizabeth L. Griffing, Axilon Law Group, PLLC, Helena, Montana

For Appellee and Cross-Appellant: John Heenan, Heenan & Cook, Billings, Montana, Michael P. Manning, Ritchie Manning Kautz PLLP, Billings, Montana

Justice Beth Baker delivered the Opinion of the Court.

¶1 Montana State University–Northern ("MSU-N"), appeals a decision of the First Judicial District Court, Lewis and Clark County, upholding a Hearing Officer's conclusion that MSU-N retaliated against its employee, Dr. Randy Bachmeier, for reporting and pursing a claim of sexual harassment against his supervisor. Should we uphold the retaliation claim, MSU-N argues that the Hearing Officer's $75,000 damages award is inappropriate. MSU-N also challenges the District Court's award of attorney fees in Bachmeier's favor. Bachmeier cross-appeals, arguing that the District Court erroneously reinstated the Hearing Officer's original findings of fact, conclusions of law, and order, which concluded that Bachmeier failed to demonstrate his supervisor sexually harassed him. Bachmeier also argues, should this Court reverse the District Court, the Montana Human Rights Commission ("HRC") erred by reducing the sexual harassment award from $175,000 to $80,000.

¶2 We reverse the District Court's decision to remand and reinstate the Hearing Officer's first decision and affirm the HRC's final order on Bachmeier's sexual harassment claim. We affirm the District Court's ruling upholding the conclusion that MSU-N retaliated against Bachmeier. We affirm the HRC's reduction of both the $175,000 damages award for sexual harassment to $80,000 and the $75,000 award for retaliation to $20,000. Finally, we affirm the District Court's award of attorney fees and costs.

¶3 We restate the issues as follows:

1. Did the District Court properly reverse the HRC's Remand Decision on the ground that it applied an incorrect standard in reviewing the Hearing Officer's first set of findings?

2. Did the District Court err by upholding the Hearing Officer's and HRC's conclusion that MSU-N retaliated against Bachmeier?

3. Did the HRC exceed its statutory authority when it reduced Bachmeier's damages for MSU-N's discriminatory and retaliatory acts?

4. Did the District Court abuse its discretion in calculating and awarding attorney fees and costs in Bachmeier's favor?

FACTUAL AND PROCEDURAL BACKGROUND

¶4 Bachmeier brought this action against MSU-N, alleging sexual harassment and retaliation by his supervisor, Dr. Roslyn Templeton. In May 2013, Bachmeier notified MSU-N that Templeton had been inappropriately touching him on the arm and back for the past several years. Bachmeier filed a complaint with the HRC shortly thereafter. In November 2013, Bachmeier filed an amended complaint with the HRC alleging sexual harassment and retaliation. Following a contested case hearing, the Hearing Officer issued sixty-nine findings of fact. Most of those findings are not disputed.

¶5 MSU-N hired Bachmeier in 2002 as a project coordinator. By 2011, Bachmeier had earned his Ph.D. and been promoted several times, reaching the position of Interim Dean of Extended University. The Hearing Officer found that, by all accounts, Bachmeier was a diligent and hard-working employee, with only a minor reprimand in his personnel file. In early 2012, Bachmeier was appointed Dean of Extended University, a position he still holds.

¶6 MSU-N hired Templeton as Provost and temporary Dean of the College of Education in June 2010. She was MSU-N's fourth provost in ten years, joining at a time when the university was undergoing accreditation review and facing financial and organizational difficulties. Bachmeier's promotion to Interim Dean of Extended University in 2011 resulted in Templeton becoming his sole direct supervisor.

¶7 In late 2011, Montana State University ("MSU") appointed Dr. James Limbaugh to be the new chancellor of MSU-N. As provost, Templeton reported directly to Limbaugh. Even before arriving on campus, Limbaugh began receiving messages from faculty members expressing concerns and frustrations regarding Templeton. Most of these complaints concerned her difficult task in administering an "academic program prioritization" review of all MSU-N programs, as well as her direct communication style.

¶8 Bachmeier testified at the hearing that on or around October 14, 2010, Templeton first began touching him, placing her hand on his knee for several seconds during a meeting in her office. Templeton continued to touch Bachmeier intermittently after that, usually by stroking his arm with her fingertips or by rubbing his shoulders and down his back. Bachmeier stated he found this touching uncomfortable, but he initially did not expressly tell Templeton to stop; he instead adopted "closed" body language around her, moved his office desk into a position where it would be more difficult for her to touch him, avoided attending meetings with her alone, and eventually moved to a smaller office in a different building and installed a door chime to help alert him to when she might be coming. Despite these measures, Templeton would continue to touch Bachmeier in the same manner, both publicly at meetings or gatherings and by walking behind Bachmeier's desk to reach him.

¶9 Templeton did not limit her touching to Bachmeier. Numerous witnesses testified that, although Templeton would touch both male and female coworkers, she touched men in a manner objectively different from how she touched women. As she did with Bachmeier, Templeton would "stroke

" male coworkers on their arms, massage their shoulders, and massage or rub up and down their backs. Both male and female coworkers described Templeton's touching as "borderline fondling," "inappropriate for a boss or a supervisor," and "inappropriate, kind of creepy." Limbaugh testified that Templeton once touched him from behind in a manner that caused him to confuse her for his wife, though he stopped short of describing it as a sexual touch. Not a single witness testified to Templeton touching women in this manner.

¶10 On April 30, 2013, Bachmeier met with Templeton to discuss the minimum number of enrolled students necessary to justify holding a course in the summer. Bachmeier advocated that eight enrolled students, rather than nine, should justify putting the course on the summer schedule. Bachmeier testified that while he was explaining his position, Templeton began stroking the hair on his forearms with her fingertips. At this point, Bachmeier, for the first time, told Templeton to "please stop." Templeton took her hand away, told Bachmeier that the number of enrolled students needed would remain at nine, and ended the meeting.

¶11 The next day, Templeton went to Bachmeier's office and reprimanded him. Bachmeier had submitted a contract for a professor to teach the course Templeton had stated did not meet the enrollment requirements. Templeton inadvertently had approved the contract the previous day, discovering her error that morning. Her reprimand was followed by an e-mail later that afternoon informing Bachmeier that he should "[c]onsider our conversation this morning" to be an official "verbal warning." Templeton forwarded her e-mail to MSU-N's human resources department.

¶12 About a week later, Bachmeier instructed his attorney to send a letter to MSU-N's human resources department alleging that Templeton sexually harassed him. MSU-N Human Resources Director Kathy Jaynes forwarded the letter to Limbaugh, who met with Templeton that day. Limbaugh instructed her to not touch Bachmeier at all anymore and informed her that he would directly supervise Bachmeier while the complaint was processed. Limbaugh informed Bachmeier of the same that day. Bachmeier filed a discrimination and retaliation complaint with the Montana Department of Labor and Industry on May 30, 2013.

¶13 MSU-N completed its internal investigation into Bachmeier's allegations on July 9, 2013, finding Bachmeier's sexual harassment and retaliation claims unsupported. In August Templeton voluntarily resigned from the university, effective January 3, 2014. She ceased working on campus in mid-October. Templeton's departure created a job opening for provost, a position for which Bachmeier previously applied in 2007.

¶14 A job description for the provost position was posted, requiring a candidate to be or have been an associate or full professor, effectively disqualifying Bachmeier because he had no such experience. This job description was substantively the same as the description for the same position in 2007, for which Bachmeier also did not qualify. Bachmeier nonetheless e-mailed Limbaugh of his intent to apply for the position; he asked if the requirements could be changed so he would qualify. Limbaugh responded that Bachmeier did not meet the qualifications and that they would not be modified, effectively denying him the position. Limbaugh then e-mailed MSU president Waded Cruzado and MSU provost Martha Potvin informing them that a "controversy" was about to surface, involving an "issue with an employee who has had an ongoing issue with the current incumbent provost." Cruzado copied this e-mail to MSU-N legal counsel.

¶15 On October 1, 2013, Bachmeier applied for the provost position. Jaynes forwarded Bachmeier's application to Limbaugh. Out of fifty applications, Bachmeier's application was the only one she sent Limbaugh, whose role in the selection process was only to write the job description and to interview the final candidates. The next day, Limbaugh e-mailed Greg Kegel, the chair of the provost search committee, informing him that Bachmeier's application did...