No. 14579 INTHE SUPREMECOURTOFTHE STATEOFMlNlYNA 1979

Plaintiff andRespondent,

STATEOFmANAand STATEDEPAIUWNT OF INSI'mIONS, Defendant andAppellant.

Appeal froan: DistrictCourtof theFirstJudicialDistrict, HonorableGordon R. Bennett, Judgepresiding. Counselof Record: ForAppellant: Garrity, Keegan & Bm,Helena, mntana Donald Garrityargued,Helena, mntana ForAppellant: Scribner, Huss &Mulroney, Helena, Mmtana Lawrence D. Huss argued, Helena, mntana

Sutmnitted: June 12, 1979 Decided:

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## 01979 --Honorable John S. Henson, District Judge, sitting in place of Mr. Justice John C. Harrison,delivered the Opinion of the Court. Plaintiff-respondent Geraldine C. Strong brought this action in the District Court, Lewis and Clark County,to recover damages forher dismissal fromher job with defendant-appellant Department of Institutions. Strong charged that her dismissal

was a direct result of her having filed a sex and age discrimination complaint against the Department before the United States Equal Employment Opportunity Commission (EEOC). The Department

now appeals from a jury verdict and subsequent judgment in favor of Strong. Strong began working with the Department as a reimbursement officer in Billings in 1967. In 1972, shewas promoted and moved to Helena to become administrator of the Department's Reimbursement Division. In the spring of 1974, the Department reorganized and the Reimbursement Division became a bureau of the newly-created Auditing and Accounting Division. Strong applied for a division level position in both theAuditing and Accounting Division and the Research and Evaluation Division. Shewas told that the former position had been filled and that she did not possess the qualifications necessary for the latter. AS a result of being denied consideration for the positions, Strong filed the EEOC complaint in August 1974. An investigation ensued, and during this period Strong alleges that her once-healthy working relationship with the Department deteriorated. Strong testified that she and her staffwere subjected to five sudden moves to various office spaces, that shewas excluded from important staff meetings which she had formerly attended regularly, that her proposals were ignored and her budget requestsdenied. The Department submitted a substantial amount of contradic-ing testimony which indicated that Strong's performance became deficient after the filing of the complaint. The Department alleged that Strong was overspending her travel budget, that she

was unable to work with her fellow employees and subordinates and that shewas deliberately attempting to overspend the budget for her bureau. The Departmentdenied that any putative or retaliatory action was ever directed to be taken against Strong, but rather that she would have been terminated regardless of her complaint to the EEOC. Nicholas Rotering, staff counsel for the Department, represented the Department concerning the complaint and reviewed its progress. Rotering concluded after discussionswith the EEOC that the complaint was invalid because of a time lapse after the initial investigation. Strong was suspended in May, 1977,and filed this action in June, 1977. She was shortly thereafter terminated. After her discharge, Strong and the Department learned that the EEOC complaint had not lapsed,and, in fact,a partially favorable determination toward Strong had been made. Appellant argues two issues on appeal, the first of which is as follows: (1) Did the District Court err in admitting into evidence

a copy of the EEOC determination? Over objection, plaintiff's Exhibit 35 was admitted into evidence. The exhibit was characterized by the trial judge as "aXerox copy of the essentialdetermination of the Equal Employment Opportunity Division of the United States Government" and stated in part: "Determination "Under the authority vested inme by 29 CFR 1601. 19b(d) (September27, 1972) I issue,on behalf of the Commission, the following determination as to the merits of the subject charge."On the above findings,we find no reasonable cause to believe that the Charging Party received a lesser salary because of her sex. "Based on the evidence,we find reasonable cause to believe that the Respondent violated Title VII of the Civil RightsAct 

### of 1964,as amended, by failing to promote the Charging Party because of her sex. "OnBehalf of the Commission: Pedro Esquivel, DistrictDirector." Appellant objected to the evidence because it charged that the EEOC determinationwas hearsay. Rule 801,Mont.R.Evid., provides for the definition of hearsay: "(c) Hearsay. Hearsay is a statement,other than onemade by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." The Commission Comments to Rule 801 of the Rules note under subpart

(c)

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# . ..And third, from the phrase 

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# .. .offered in evidence to prove the truth of thematter asserted,' statements offered for purposes other than to prove the truth of their contents are not hearsay." We think the evidence in dispute does not conform with this requisite element of the hearsay rule; that is, the findingwas not offered to prove the truth of the matter asserted. Thepurpose of introducing the EEOC reportwas not to prove that there

was probable cause to believe that the Departmenthad discriminated against Strong on the basis of sex,but rather that the EEOC had not terminated its investigation of Strong's original complaint

as believed by the Department. It was not the finding of the EEOC thatwas asserted by the plaintiff, only the fact that there was a findingmade subsequent to the time that the Department's in-house counsel informed the Department that the EEOC would not proceed with the complaint. The same purpose would have existed if the EEOC ruling would have been adverse to Strong. Appellant's position is further weakened by the fact that both appellant and respondentagreed to and signed a pretrial orderwhich stipulated that certain exhibits could be offered at trial without proof of foundation and subject only to objections as to relevancy ormateriality. Paragraph six of the pretrial order provides as follows: "6. Exhibits. The following are exhibits which are to be offered at the time of trial. Each of such exhibitsmay be offered and received at the time of trialwithout furtherproof of foundation,and subject only to the objections as to relevancy or materiality." The plaintiff's exhibits were attached asAppendix C and contained, as item number 35, the EEOC determination dated August

Appellant now contends that the report is hearsay, but it has waived its right to enter any objections, other than as to relevancy and materiality, concerning the introduction of the EEOC findings. Rule 16,M.R.Civ.P. provides in pertinent part: "Thecourt shallmake an order which recites the action taken at the conference, the amendments allowed to the pleadings,and the agreementsmade by the parties as to any of thematter considered, and which limits the issues for trial to those not disposed of by admission or agreementsof counsel; and such orderwhen entered controls the subsequent course of the action, unlessmodified at the trial to prevent manifest injustice." (Emphasissupplied.) Any injustice to the Departmentwhichmay have stemmed from the admission of the EEOC report was considered when the District Court judge weighed the relevancy of the evidence against its possible prejudicial effect. The judgedecided that the relevance of the report outweighed its possible resultant prejudice. As an additional safeguard,a cautionary instructionwas submitted to the jury in which the jury was admonished that the findings of the EEOC were "without legally binding effect" and that they simply permitted Strong to file a claim in federal court. Further, it is unlikely that the Department could be substantiallyprejudiced by an exhibitwhich dealt with issues (sex and age discrimination) which were not placed before the trier offact for determination. Here, the issue iswhether Strong's filing of the complaintprecipitated her subsequentdismissal, and the contents of the report do not relate to these issues. The second issue argued by appellant states:

(2) Are the verdict and the judgment supported by the evidence? We believe they are. The Department charges that it was justified in discharging Strong because of her poor job performance, and that she cannot be insulated from a legitimate dismissal because she has filed a complaint with the EEOC. Appellants rely on Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L ed 2d 471, inwhich the United States Supreme Court held that even where constitutionally protected conduct (speech)played a substantial part in a schoolboard's decision not to rehire a teacher, the teacher isnot entitled to reinstatement if the school board would have reached the samedecision even in the absence of the protected conduct. Appellant argues that the evidence is clear that Strong

was properly discharged for reasonsvalid in themselves and unconnected with the EEOC complaint and recites a distorted fact situation relying solely on the testimony of its own witnesses to support its argument. It cannotbe ignored that a large volume of testimony adverse to the appellantwas also submitted to the jury. While much of the evidence is conflicting, the credibility and weight given to conflicting evidence is the province of the trier of fact and not this Court. Estate of Holm v. Parsons (1979), Mont

# . , 588 P.2d 531, 36 St.Rep. 11. The jurywas properly instructed to find for the Department if there was sufficient and independent grounds for Strong's dismissal. If the jury believed by a preponderance of the evidencethat the filing of the complaintwas themotivating factor for the firing, itwas instructed to find for Strong. The jury apparently chose to believe the testimony of Strong and her witness; that is, the dismissal was retaliatory and not justified. It is a well established legal principle that where fact issues are presented to a jury and there is substantial evidence to support the findings of the jury verdict, the verdict is conclusive on appeal. Johnsonv. St. Patrick's Hospital (1968), 152Mont. 300, 448 P.2d 729. This reasoning has been extended yet further in McGee v. Burlington Northern Inc. (1977), Mont.



## , 571 P.2d 784, 34 St.Rep. 1304,where this Court held that only when there is a complete absence of probative facts to support the verdict does error occur. In this casewe see no reason to question the trial jury's decision. The verdict and judgment of the trial court are aFfirmed.

ohn S. Henson, DistrictJudge, g in place of Mr. Justice John C. rrison. We concur: