N O. 91-175 IN THE SUPREME COURT OF THE STATE OF MONTANA 1991

LAURA J. McCA", Respondent and Appellant,
-vsTRUSTEES, DODSON SCHOOL DISTRICT, Petitioner and Respondent.

APPEAL FROM: District CourtoftheSeventeenthJudicial District, In and for the County of Phillips, The Honorable B.W. Thomas, Judge presiding.

COUNSEL OF RECORD: For Appellant: Emilie Loring;Hilley & Loring, Missoula, Montana. For Respondent: Catherine Swift; Erdmann Law Office, Helena, Montana.

Submitted on briefs: July 16, '991Chief Justice J. A. Turnage delivered the Opinion 

### of the Court. The District Court for the Seventeenth Judicial District, Phillips County, granted summary judgment for the Trustees 

### of Dodson School District (school district) in this action for attorney fees pursuant to 

### 5 49-2-505(4), MCA. Laura J. McCann appeals. 

### We reverse. The issue iswhether the District Court abused its discretion in awarding attorney fees to the school district as the prevailing defendant in the underlying discrimination case filed under the Montana Human Rights Act. The school district brought this action in District Court to
recover from Laura J. McCann (McCann) its attorney fees incurred in defending against her complaint of unlawful discrimination. McCann filedher complaintwith theMontana Human Rights Commission in August 1986. She alleged that the school district, her employer, had discriminated against her on the basis 

### of race and sex when she, a Caucasian female,was paid less forher combination teacher/aide position than was a Native American male for his comparableposition. TheHuman Rights Commission hearing examiner, while agreeing that McCann had established a prima facie case of employment discrimination, nevertheless concluded that a basis other than gender and race had been shown to explain the salary differential. The hearing examiner concluded that the school district was justified in paying the male more because he was 2available to work as an athletic director and coach, for which he
was also paid an additional stipend. The Human Rights Commission affirmed 

### the hearing examiner's decision. McCann did not appeal that final administrative determination. The schooldistrict then initiated a district court action for attorney fees under 5 49-2-505(4), MCA: The prevailing party in a hearing under this section may bring an action in district court for attorneys' fees. The court in its discre- tionmay allow theprevailing party reasonable attorneys' fees, 

# . . 

# . The parties filed and briefed cross-motions for summary judgment. Concluding that "there is a lack of supporting evidence here, [McCann] carried on her litigation too long, and her action was not reasonable,I' and that "[plublic policy is advanced by discouraging claims of limited merit, " the District Court granted the school district's motion for summary judgment. The parties stipulated to the amount of attorney fees, just under $5,000. McCann appeals.

Did the District Court abuse its discretion 

### in awarding attorney fees to the school district as the prevailing defendant in the underlying discriminationcase filedunder theMontana Human Rights Act? Until now, no standard has been authoritatively set forth to guide a district court's discretion in deciding whether attorney fees shouldbe awarded to a successfuldefendant in an action filed
3under the Montana Human Rights Act. However, this Court has affirmed a denial of attorney fees to a prevailing defendant based
on the district court's determination that the case was not "frivolous or factually baseless. It Breese v. Steel Mountain Enterprises, Inc. (1986), 220 Mont. 454, 458, 716 P.2d 214, 216. This Court has stated that the Montana Human Rights Act "is closelymodeled after TitleVII, and reference topertinent federal
case law is both useful and appropriate.'I Snell v. Montana
-Dakota Utilities Co. (1982), 198 Mont. 56, 62, 643 P.2d 841, 844. Here, the parties and the District Court cite the standard set forth in Christiansburg Garment Co. 

### v. EEOC (1978), 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648, as appropriate in deciding whether a successful defendant in a Human Rights Act case is entitled to attorney fees. Christiansburq addressed the question of when attorney fees should be awarded to a successful defendant in a Title VI1 action. The Christiansburq standard is that
a plaintiff should not be assessed his opponent's attorney's fees unless a court finds that his claimwas frivolous,unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so. Christiansburq, 434 U.S. at 422. The reasons for the above limitation on the allowance of attorney fees to successful defendants 

### in Title VI1 actions are also present in cases decided under the Montana Human Rights Act. The right to be free from discrimination because 

### of race, creed, 4religion, color, sex,physical ormental handicap, age, or national origin is a civil right specifically recognized by law. Section 49

-1

-102, MCA. Civil rights acts depend upon private individuals to uphold the public policy set forth in the law. To avoid discouraging the filing of meritorious claims under the Montana HumanRightsAct, we adopt the standard set forth in Christiansburq
as the measure for whether attorney fees should be granted to prevailing defendants under 5 49-2-505(4), MCA. Both parties cite federal circuit court cases decided under Christiansburq. However, as they acknowledge, none of those cases control and all are factually distinguishable. We do note that, in contrast to most cases in which this Court defers to a trial court's discretion on the grounds that the trial court has the unique opportunity to observe the demeanor of the parties and witnesses, this action was decided on summary judgment after administrative action. Therefore, the District Court did not have the opportunity to observe the demeanor of the parties or witnesses.We conclude that the Christiansburq standard has not been met here. Based primarily on the hearing examiner's finding that McCann made a prima facie case, we disagree with the District Court's statement that there 

### is a lack of supporting evidence and that McCann's action was not reasonable. "If the plaintiff established a prima facie case 

# . . 

# . this will generally defeat a 5prevailing defendant's request for fees." Larson, Employment Discrimination, vol. 3, § 58.12, pp. 11

-104 through 11

-106.1

(1990). Additionally, we do not accept the District Court's reasoning that McCann's case is "of limited merit." There is nothing in the record to indicate that McCann's case was filed or pursued in bad faith. The schoolboard points toMcCann's parallel pursuit of separate federal administrative proceedings, her eventual loss of this case, and her apparent refusal of a compromise offer from the school district. But we are unwilling to hold that the pursuit of administrative remedies is grounds for a ruling of unreasonableness. McCann did not further pursue the action afterbeing unsuccessful in the administrativeproceedings. Despite the school district's protestation that it is a small entity and that the attorney fees incurred in defending this case present a hardship to it, we conclude that, 

### in light of the strong public policy 

### of encouraging possibly meritorious claims filed under the Montana Human Rights Act, the school district must pay its own attorney fees. Reversed.

6We concur:

7

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