Submitted on Briefs: January 10, 2018
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.
Appellant: Ryan Shaffer, Robert L. Stepans, Meyer, Shaffer,
& Stepans, PLLP, Missoula, Montana.
Appellee: T. Thomas Singer, Axilon Law Group, PLLC, Billings,
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.
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.
AND FACTUAL BACKGROUND
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.
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.
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.
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."
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
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.
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 ...