No. 14579 

IN THE SUPREME COURT OF THE STATE OF MlNlYNA 

1979 

Plaintiff and Respondent, 

STATE OF mANA and 

STATE DEPAIUWNT OF INSI'mIONS, 

Defendant and Appellant. 

Appeal froan: District Court of the First Judicial District, 

Honorable Gordon R. Bennett, Judge presiding. 

Counsel of Record: 

For Appellant: 

Garrity, Keegan & Bm, Helena, mntana 

Donald Garrity argued, Helena, mntana 

For Appellant: 

Scribner, Huss & Mulroney, Helena, Mmtana 

Lawrence D. Huss argued, Helena, mntana 

Sutmnitted: June 12, 1979 

Decided: SkP 2 0 1979 -- 
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 for her dismissal from her 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, she was 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 the Auditing and Accounting Division and the Research and Evaluation Division. She was 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 staff were subjected to five sudden 

moves to various office spaces, that she was excluded from important staff meetings which she had formerly attended regularly, that 

her proposals were ignored and her budget requests denied. 

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 she was deliberately attempting to overspend the budget 

for her bureau. The Department denied 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 discussions with 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 

"a Xerox copy of the essential determination of the Equal Employment Opportunity Division of the United States Government" and 

stated in part: 

"Determination 

"Under the authority vested in me by 29 CFR 1601. 

19b(d) (September 27, 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 Rights Act of 1964, as amended, 

by failing to promote the Charging Party because 

of her sex. 

"On Behalf of the Commission: Pedro Esquivel, 

District Director." 

Appellant objected to the evidence because it charged that 

the EEOC determination was hearsay. Rule 801, Mont.R.Evid., 

provides for the definition of hearsay: 

"(c) Hearsay. Hearsay is a statement, other 

than one made 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) , in part: 

" . . . And third, from the phrase ' . . . offered 

in evidence to prove the truth of the matter 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 finding was 

not offered to prove the truth of the matter asserted. The purpose of introducing the EEOC report was not to prove that there 

was probable cause to believe that the Department had 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 

that was asserted by the plaintiff, only the fact that there was 

a finding made 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 respondent agreed to and signed a pretrial order 
which stipulated that certain exhibits could be offered at trial 

without proof of foundation and subject only to objections as to 

relevancy or materiality. 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 exhibits may be offered and received at 

the time of trial without further proof of foundation, and subject only to the objections as to 

relevancy or materiality." 

The plaintiff's exhibits were attached as Appendix 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: 

"The court shall make an order which recites the 

action taken at the conference, the amendments 

allowed to the pleadings, and the agreements made 

by the parties as to any of the matter considered, 

and which limits the issues for trial to those not 

disposed of by admission or agreements of counsel; 

and such order when entered controls the subsequent 

course of the action, unless modified at the trial 

to prevent manifest injustice." (Emphasis supplied.) 

Any injustice to the Department which may 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 judge decided that the relevance of the report outweighed its possible resultant prejudice. 

As an additional safeguard, a cautionary instruction was 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 substantially prejudiced by an exhibit which dealt with issues (sex 

and age discrimination) which were not placed before the trier of 
fact for determination. Here, the issue is whether Strong's 

filing of the complaint precipitated her subsequent dismissal, 

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, 

in which the United States Supreme Court held that even where 

constitutionally protected conduct (speech) played a substantial 

part in a school board's decision not to rehire a teacher, the 

teacher is not entitled to reinstatement if the school board would 

have reached the same decision even in the absence of the protected 

conduct. 

Appellant argues that the evidence is clear that Strong 

was properly discharged for reasons valid 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 cannot be ignored that a large volume 

of testimony adverse to the appellant was 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 jury was 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 evidence 
that the filing of the complaint was the motivating factor 

for the firing, it was 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. Johnson v. St. Patrick's Hospital (1968), 

152 Mont. 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 case we see no reason 

to question the trial jury's decision. 

The verdict and judgment of the trial court are aFfirmed. 

ohn S. Henson, District Judge, 

g in place of Mr. Justice John 

C. rrison. 

We concur: