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Jones v. All Star Painting Inc.

Supreme Court of Montana

April 3, 2018

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

          Submitted on Briefs: January 10, 2018

          APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis And Clark, Cause No. BDV 16-742 Honorable Mike McMahon, Presiding Judge.

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

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

          OPINION

          Beth Baker Justice.

         ¶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 ...


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