NO. 88-338 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

LENORE F. TALIAFERRO, 

Plaintiff and Respondent, 

-vsTHE STATE OF MONTANA and THE DEPARTMENT 

OF SOCIAL and REHABILITATION SERVICES OF 

THE STATE OF MONTANA, 

Defendants and Appellants. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Gordon Bennett, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

James M. Scheier, Agency Legal Services Bureau, 

Helena, Montana 

For Respondent : 

Frederick F. Sherwood, Helena, Montana 

Submitted on Briefs: Oct. 6, 1988 

Decided: November 29, 1988 

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Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

The District Court, First Judicial District, Lewis and 

Clark County, determined in a jury trial that the State 

Department of Social and Rehabilitative Services (SRS) 

discriminated against Lenore Taliaferro when it did not hire 

her because of her support of certain legislation pending 

before the 1983 Legislature. The judgment of the District 

Court awarded damages and attorney's fees. SRS appealed the 

judgment of the District Court to this Court. The only 

question presented to us on appeal is whether support for or 

against legislation before committees in the legislature 

constitutes "political ideas" or "political beliefs" for 

which discrimination in employment may not occur under the 

Governmental Code of Fair Practices and the Montana Human 

Rights Act. We hold that such support constitutes the 

exercise of political ideas or political beliefs. 

Under the Governmental Code of Fair Practices, 5 

49-3-201 (1) , MCA, state and local government officials must 

evaluate and hire personnel on the basis of merit and 

qualifications without regard to, among other factors, 

"political ideas." Under the Human Rights Act, S 

49-2-308 (3) , MCA, it is an unlawful discriminatory practice 

for the state or any of its political subdivisions to refuse 

employment to a person because of political beliefs. 

Government employees are therefore a protected class against 

discrimination by reason of their political ideas or 

political beliefs. The Human Rights Act may be enforced 

before the Human Rights Commission or before the district 

courts. Title 49, Ch. 2, Part 5, MCA. Likewise, the 

Governmental Code of Fair Practices may be enforced by the 
Human Rights Commission and the district courts. Title 49, 

Ch. 3, Part 3, MCA. 

Lenore Taliaferro was under contract to the Community 

Services Division of the SRS as a Long Term Care Ombudsman 

(LTCO) for over two years. An LTCO is a liaison between 

senior citizens and long-term care facilities and acts as the 

seniors' ombudsman in case any problems arise regarding their 

care. Taliaferro's last contract expired on January 21, 

1984. Taliaferro went through an application and 

interviewing procedure before SRS contracted for her services 

in 1981 and again in 1982. Each time SRS contracted with her 

on her merit. Each contract between SRS and Taliaferro was 

for a fixed term and contained no provision guaranteeing 

continued employment beyond the termination date set forth in 

the contract. During the two year period Taliaferro 

competently performed her LTCO duties. There was no evidence 

that her competence or qualifications were ever deficient. 

In the 1983 Legislative Session, House Bill 773 was 

introduced proposing to establish a permanent LTCO program. 

The bill provided for the establishment of a Board, to be 

appointed by the Governor, to oversee the LTCO program, and 

it further provided that the Board and the program would be 

attached to the Office of the Governor. Taliaferro believed 

that SRS had a conflict of interest in administering the LTCO 

program because SRS was responsible for licensing long-term 

care facilities, and therefore she believed the program 

should be attached to another office such as that of t.he 

Governor. 

During the 1983 Legislative Session, Taliaferro 

testified in support of the ombudsman legislation. SRS 

opposed it because it would remove the position from control 

of SRS to the Office of the Governor. Eventually, the bill 

d.id not pass. 
After Taliaferro's legislative appearance, Norma Vestre 

Harris, division head of Community Services of SRS, and 

Taliaferro's direct supervisor while her services were 

contracted, informed Taliaferro that SRS would not support 

the legislation and did not agree with it. In a memorandum 

of January 19, 1983 Harris informed Taliaferro, "Any 

activities that you have related to the ombudsman legislation 

must not involve any SRS staff since it is not part of the 

executive package and because we are not in agreement with 

it. . . . I would like to know if you are registered with a 

group or organization in regard to the legislation and would 

like to know the name of the organization." 

Later in 1983, apparently, the SRS decided to convert 

the LTCO position from a contracted position to a full-time 

employment position; and to fill the position through an open 

recruitment and selection process rather than by simply 

appointing Taliaferro. At the same time, in a parallel 

matter, the state converted the position of State Aging 

Coordinator, then held by Charles Briggs, to one of full time 

employment. No open recruitment took place for the new 

position, and Briggs, who formerly was supervised by the 

Governor, simply continued his position as a full-time 

employee under the SRS. Briggs distinguished to Taliaferro 

this separate treatment of the State Aging Coordinator, 

claiming that his position was different from Taliaferro's in 

that Briggs was appointed by the Governor, that his contract 

stipulated that he could become an employee, and that this 

was approved by legislation. 

A number of applicants applied for the LTCO position. 

The applications were reviewed for minimum qualifications 

which were: a degree in social work or a related field such 

as psychology, sociology, or education, and three years 

experience or a master's degree in social work. Each 
applicant was presented with an "application supplement" 

which two members of the Council on Aging rated according to 

model answers. Both the questions and the model answers to 

the application supplement were prepared by Norma Vestre 

Harris whom Taliaferro had opposed on the ombudsman 

legislation. Two members of the Council on Aging scored the 

answers without knowing the names of the respondents. The 

passing score was set at 15. The record does not say who 

decided this score or how it was arrived at. Of twentv 

applicants who submitted the supplement, only seven passed. 

The scores ranged from 7.5 to 23. Taliaferro achieved the 

highest score, 23; and two candidates achieved the next 

highest score of 18. The candidate ultimately chosen for the 

LTCO position achieved a score of 18. 

The seven passing candidates went on to an oral 

interview consisting of questions and model answers again 

developed by Norma Harris. The selection committee consisted 

of Harris, Charles Briggs, and Kelly Moorse, executive 

director of the Mental Disabilities Board of Visitors. That 

panel interviewed the seven candidates, scored their 

responses based on Harris's model answers after discussing 

each response among themselves and deciding on a "consensus 

score." The panel did not choose Taliaferro for the job 

stating that she did not score high enough on the oral 

interview questions. On those questions the three 

interviewers scored Taliaferro 37 and the successful 

candidate 43. The panel based the final hiring decision 

entirely on the responses to the oral questions. 

The District Court jury found that Taliaferro had not 

been hired because of her support of legislation that SRS 

opposed. The jury rejected SRS's assertion that its position 

on House Rill 773 was "neutral." 
Our standard of review in employment discrimination 

cases is that iterated in European Health Spa v. Human Rights 

Commission (Mont. 1984), 687 P.2d 1029, 1032, 41 St.Rep. 

1766, 1769 where we said: 

In Martinez v. Yellowstone County Welfare 

Department (Mont. 1981), 626 P.2d 242, 38 St.Rep. 

474, we adopted the McDonnell test for employment 

discrimination cases filed under section 49-2-303, 

MCA, which involve disparate treatment of a 

protected class because "[tlhe provisions of Title 

49, Montana Human Rights Act, are closely modeled 

after Title VII of the Federal Civil Rights Act of 

1964 . . ." 

In the same case, we set forth a test for such cases 

following McDonnell Douglas Corporation v. Green (1973) , 411 

U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668, and we quoted 

directly from Texas Department of Community Affairs v. 

Burdine (1981), 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 

First, the plaintiff has the burden of proving by 

the preponderance of the evidence a prima facie 

case of discrimination. Second, if the plaintiff 

succeeds in proving the prima facie case, the 

burden shifts to the defendant "to articulate some 

legitimate nondiscriminatory reason for the 

employee's rejection." . . . Third, should the 

defendant carry this burden, the plaintiff must 

then have an opportunity to prove by a 

preponderance of the evidence that the legitimate 

reasons offered by the defendant were not true 

reasons, but were a pretext for discrimination. 

(Citations omitted. ) 

Under McDonnell, as adopted by us, a plaintiff 

establishes a prima facie case of employment discrimination 

if the plaintiff's evidence shows (1) the employer received 

an application or equivalent from a qualified protected-class 

person; (2) a job vacancy or employment opportunity existed 

at the time of the application; and (3) the person was not 

selected. Martinez, supra. 
In United States Postal Service Board of Governors v. 

Aikens (1983), 460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d 403 

where the plaintiff claimed employment discrimination because 

of his color, the Supreme Court held that by establishing a 

prima facie case, the plaintiff creates a rebuttable 

presumption that the employer unlawfully discriminated 

against him, and to rebut the presumption, the defendant must 

clearly set forth through admissible evidence the reasons for 

the plaintiff's rejection. If the defendant fails to 

persuade the Court to dismiss for lack of a prima facie case, 

and responds to plaintiff's proof by offering evidence of the 

reasons for the plaintiff's rejection, the presumption drops 

from the case and the fact finder must then decide the 

ultimate factual issue of whether the defendant intentionally 

discriminated against the plaintiff. 460 U.S. at 711. The 

plaintiff, however, is not required to present direct 

evidence of the defendant's discriminatory intent. 

Nonetheless, the ultimate burden of persuading the trier of 

fact is on the plaintiff at all times. The McDonnell 

division of intermediate burdens serves to bring the 

litigants and the Court expeditiously and favorably to the 

ultimate question. Burdine, supra, 450 U.S. at 253. 

The decision of the jury in this case means that it 

rejected the reasons given by SRS for not employing 

Taliaferro as pretextual and that it found that SRS refused 

to hire Taliaferro because of her appearance before the 

legislature. SRS therefore bases its attack on the judgment 

on appeal principally on the ground that an effort t.o 

persuade the legislature one way or the other with respect to 

pending legislation is not an expression of either "political 

beliefs" or "political ideas," and therefore the 

anti-discrimination statutes do not apply. 
Since the ultimate factual issue has already been 

determined by the jury, the issue on appeal is one of 

statutory interpretation, and for us a case of first 

impression. SRS asserts that Taliaferro's support and 

backing of the 1983 legislation must be associated with 

"party politics" before either 5 49-2-308 or B 49-3-201, MCA, 

will apply to protect her; that neither the term "political 

beliefs," nor "political ideas" is defined in the code; and 

that the District Court construed these terms too broadly and 

beyond basic rules of statutory construction. On that basis 

SRS contends that it was entitled to a summary judgment in 

the District Court. 

b?e agree with the United States Supreme Court that a 

public employee does not relinquish First Amendment rights to 

comment on matters of public interest by virtue of government 

employment. Pickering v. Board of Education (1968), 391 U.S. 

563, 88 S.Ct. 1731, 20 L.Ed.2d 811. Here the employee's 

right of petition may also be involved. Pickering also 

recognized that the state's interest in regulating the speech 

of its employees "differs significantly from those that it 

possesses in connection with speech of the citizenry in 

general. " A balance must be struck between the interest of 

the employee as a citizen in commenting upon matters of 

public concern, and the interest of the state as an employer 

in promoting the efficiency of public service through its 

employees. 

In Connick v. Myers (1983), 461 U.S. 138, 103 S.Ct. 

1684, 75 L.Ed.2d 708, the Supreme Court held that the state's 

burden in justifying a particular discharge varies dependinq 

upon the nature of the employee's expression. There it was 

held that when a public employee speaks out not as a citizen 

upon matters of public concern, but instead as an employee 

upon matters of only personal interest, the courts will not 
review the wisdom of a personnel decision taken by a public 

agency. 461 U.S. at 138-139. Conversely, it seems proper to 

hold that if the public employee does speak on a matter of 

public concern as a citizen, the public employee is 

exercising a cherished First Amendment right. 

The appellants point to an earlier decision by the Human 

Rights Commission in 1980, holding that a state employee who 

was dissatisfied with the performance of his superiors in 

their operations, and who met with legislators challenging 

the competence of one superior, was not expressing politica.1 

ideas or beliefs. Obviously, such an employee was speaking 

about matters of personal interest, and under Connick - v. 

Meyers, supra, the decision of the Commission was correct. 

That decision is not precedent for this case. 

Here, Taliaferro was not employed at the time that she 

supported the legislation proposed concerning the LTCO. Her 

stated concern over the proposed legislation was that a 

possible conflict of interest existed where the same agency 

that licensed health care facilities would also supervise the 

employee concerned with ombudsman duties on behalf of 

seniors. The effect of the jury verdict is that she was 

discriminated against because she took that position before 

the legislature, expressing her rights as a citizen. The 

First Amendment protects political association with political 

parties, Buckley v. Valeo (1976), 424 U.S. 1, 96 S.Ct. 612, 

46 L.Ed.2d 659; Elrod v. Burns (1976), 427 U.S. 347, 96 S.Ct. 

2673, 49 L.Ed.2d 547, but also protects political expression. 

". . . Debate on public issues should be uninhibited, robust 

and wide open," New York Times Co. v. Sullivan (1964), 376 

U.S. 254, 270, 84 Sect. 710, 721, 11 L.Ed. 686, 701. 

Political association, expression and debate, and 

competition in political ideas and governmental policies are 

the bulwark of a democrat-i.~ government. We therefore agree 
with the District Court that the support by Taliaferro of 

proposed legislation before the Legislature was a matter of 

public concern as to how the government should be conducted, 

and thus was her expression of her political ideas or 

political beliefs. The refusal of SRS to hire her based on 

her political ideas and political beliefs constituted 

discrimination under our statutes. The judgment of the 

District Court is affirmed. Costs and attorney's fees to 

respondent, to be determined by the District Court. CWe Concur: 

.=-/A*?,* Chief Justice