IN THE SUPREME COURT OF THE STATE OF MONTANA 

P.W. BERRY COMPANY, INC., 

Petitioner and Appellant, 

-vsDEBRA FREESE, 

Respondent and Respondent. 

APPEAL FROM: District Court of the First ~udicial ~istrict: ' 

In and for the County of Lewis & Clark, . c b.; 

The Honorable Henry Loble, Judge presiding. ir, 

COUNSEL OF RECORD: 

For Appellant: 

Larry W. Jones; ~arlington, Lohn & ~obinson, is sou la, 

Montana 

For Respondent: 

~alerie A. Bashor; Sherwood Law Office, iss sou la, 

Montana 

Filed: 

Submitted on ~riefs: June 30, 1989 

Decided: September 18, 1989 
Mr. Justice John C. Sheehy delivered the opinion of the 

Court. 

P. W. Berry Company, Inc., appeals from a judgment of 

the District Court, First Judicial ~istrict, Lewis and Clark 

County, affirming an award of the Human Rights Commission to 

Debra Freese of $4,730.25 as back wages with interest at the 

rate of 10 percent per annum from the date the wages would 

have been earned. We affirm. 

Debra Freese charged the employer, P. W. Berry Company, 

Inc., with sex discrimination in her employment which 

resulted in her discharge. The Human Rights ~ivision issued 

"reasonable cause findings" in which it found there were 

reasonable grounds to believe that discrimination occurred. 

A hearing examiner appointed by the Human ~ights Commission 

issued suggested findings of fact and conclusions of law that 

were later essentially adopted by the Human Rights Commission 

that sex discrimination had in fact occurred, and that Freese 

was entitled to the loss of back wages with interest thereon. 

The decision of the Human Rights Commission was appealed to 

the District Court where, after consideration, the ~istrict 

Court affirmed. An appeal to this Court resulted. 

Berry has not appealed in this Court nor did it appeal 

in the District Court, from the finding of the Human Rights 

Commission that sex discrimination had occurred in the 

discharge of Freese. The attack of Berry in the ~istrict 

Court, and now in this Court, is that the back wages awarded 

to Freese were improperly calculated. 

Freese is a female construction laborer who at the time 

of her first employment by Berry was classified as an "A" 

general laborer by her union, with experience in the 
construction business dating from 1972. The Human Rights 

Commission found that she had been thoroughly apprenticed, 

had a variety of experience in construction work, grade 

setting, pipe laying, the use of common hand tools, and that 

she met the qualifications demanded by the positions of 

concrete pipe layer and general laborer. 

On ~pril 24, 1984, Freese was dispatched by her union to 

do pipe-laying work for Berry at its request and she began 

work on ~pril 25, 1984. She worked laying heavy concrete 

pipe for three days and on April 27, 1984, she was discharged 

and given a separation notice stating she was not a skilled 

concrete pipe layer, had unsatisfactory production, but was 

eligible for rehire for other work than back fill and pipe 

work. 

On August 21, 1984, Berry requested the union to 

dispatch two general laborers to the same construction 

project and Freese was dispatched as one of those laborers. 

She worked for three days as a general laborer, but including 

work as a pipe layer, from August 22, 1984 through August 24, 

1984 when again she was terminated for "unsatisfactory work." 

The om mission found that both discharges were illegal, 

and that the first was connected to the second. It 

calculated that Freese was entitled to back pay for a total 

of 127 eight-hour working days, or $11,755.12. gain st this 

sum was an offset for wages Freese received at other jobs in 

the sum of $7,024.87. The om mission awarded her the net of 

$4,730.25, including prejudgment interest to the date of 

judgment. 

Berry, on appeal to the ~istrict Court, and now in this 

Court, attacks the award of back pay on the grounds that the 

testimony of one Terry Erhardt should not have been admitted 

by the hearings examiner, because Erhardt's name was not 

listed at the pre-hearing conference as a witness for Freese 
and that Erhardtls exhibit should also not have been 

admitted. Berry also contends that the hearing examiner 

imposed the wrong burden of proof on Berry with respect to 

the back wages, and that the amount of back wages was 

improperly calculated by the hearing examiner and by the 

Human Rights Commission because of the limited days for which 

concrete pipe work was available on the construction project. 

Berry contends that counsel for Freese had spoken to Ms. 

Erhardt a year before the hearing and was familiar with the 

information Ms. Erhardt had relating to her claim, but failed 

to identify this person as a witness until the Friday before 

the Monday hearing. The significance of Ms. Erhardt's 

testimony is that she testified as to the type of job for 

which Freese was called out from the union hall to work and 

whether Berry required pipe laying or general labor. Berry 

relies on Workman v. McIntyre Construction Company (1980), 

190 Mont. 5, 617 P.2d 1281, wherein this Court held that a 

trial court abuses its discretion in admitting an exhibit 

when the party offering the exhibit fails to give fair notice 

of its intent to offer the exhibit. In brief Berry claims 

that its counsel did not interview Ms. Erhardt because Freese 

did not list her as a witness that Freese would call at the 

hearing to support her claim. 

This contention is remarkable because Ms. Erhardt had 

been listed by Berry as one of its own witnesses on the 

pre-hearing order. When counsel for Berry informed counsel 

for Freese that Berry did not intend to call Ms. Erhardt as a 

witness, counsel for Freese thereupon decided to call Erhardt 

as her witness. The exhibit, upon which Ms. Erhardt 

testified, consisted of a business record kept in the 

ordinary course of business in the union office which was 

used to corroborate testimony regarding Freese1s prior 

experience and job calls from the union. The objection made 
by Berry to the introduction of the exhibit was only that the 

records were repetitious. 

The ~istrict Court held that under those facts, Workman 

did not apply, as Berry could not have been surprised by the 

testimony of a person whom the employer had listed as one of 

its own witnesses. We also find no merit in this 

contention. The testimony of Erhardt and the exhibit were 

properly admitted. 

As to the amount of back pay awarded to Freese, Berry 

contends that under the record, she was entitled at most to 

27 eight-hour days of employment in the total sum of 

$2,499.12. Berry makes this argument because it contends 

that the only work for which she had been called out by Berry 

was to do concrete pipe-laying work and that no more than 

eight days of such work was available to her on this 

construction project after her termination. The Commission, 

however, found through its hearing examiner, that on the 

second occasion she had been called out for general labor, 

but had been assigned to concrete pipe laying and that she 

was qualified both for the positions of concrete pipe layer 

and general laborer. The Commission therefore calculated the 

amount of days of availability for both types of labor and 

based its award of back pay on that number of days. 

Berry contends, however, that the Commission improperly 

imposed a burden of proof upon Berry with respect to back pay 

because the commission reasoned: 

In order to establish a briefer period [for an 

award of back pay] the respondent [Berry] has the 

burden of showing by clear and convincing evidence 

that the charging party [Freese] would not have 

been employed for the entire term of the project 

even absent the discriminatory treatment. 

Freese contends, and we agree, that the Montana Human 

Rights Act is closely modeled after federal law and that we 
follow federal case law interpreting federal discrimination 

law in applying the Kontana Human Rights Act. Martinez v. 

Yellowstone County Welfare Department (Mont . 1981) , 626 P. 2d 

242. Under federal law, a charging party's back pay period 

may be reduced if he or she would have been unavailable for 

employment due to nondiscriminatory reasons and therefore 

would not have been able to earn the amounts claimed in any 

event. - A. Larson, - 2 Employment ~iscrimination (ed. 1988) 5 

55.37 (a) (iii) . See also Albermarle Paper Company v. Moody 

(1975), 422 U.S. 405, 45 L.Ed.2d 280, 95 S.Ct. 2362; Dolan v. 

School ~istrict No. 10, Deer Lodge County (1981), 195 Mont. 

340, 636 P.2d 825. 

In the Court of Appeals for the Ninth Circuit, it has 

been held that once a charging party has established a prima 

facie case of discrimination and established what is 

contended to be the damages resulting from this 

discrimination, the burden then shifts to the defendant to 

prove by clear and convincing evidence that a lesser amount 

is proper. Marotta v. Usery (~inth ~ir., 1980), 629 F.2d 

615; Ostroff v. Employment Exchange Inc. (~inth ~ir., 19821, 

683 F.2d 302; Nanty v. Barrows Co. (~inth ~ir., 1981), 660 

F.2d 1327. 

Under the findings of the Commission, Freese established 

a prima facie case that general labor was available for 127 

days and that she was eligible and capable of doing that kind 

of work. Once a prima facie case was established, the burden 

then fell upon the employer to show that nondiscriminatory 

reasons existed to reduce her claim of back pay. Berry's 

argument here is that the back pay should have been 

calculated only on the basis of the availability of concrete 

pipe-laying work. However, the Commission found that she was 

called out not only for concrete laying work but for general 

labor as well. Berry also claims that, through Ms. Erhardt, 
the employer could have produced testimony to show that there 

were 65 other laborers available through the union hall to 

fill the job required by Berry. However, this argument does 

not take into account the illegal terminations of Freese by 

Berry nor the fact that Ms. Erhardt was as available to Berry 

for such evidence as she was to Freese. 

The District Court properly noted in this case that the 

standards for judicial review of a determination by an 

administrative agency are set forth in 5 2-4-704, MCA; and 

that under Harris v. Bauer (1988), 45 St.Rep. 147, 151, 749 

P.2d 1068, 1071 and Johnson v. Bozeman School District No. 7 

(1987), 44 St.Rep. 531, 734 P.2d 209, findings of fact by an 

administrative agency are subject to the "clearly erroneous" 

standard of review and conclusions of law are subject to the 

"abuse of discretion" standard of review. On this appeal, we 

find no basis, applying the standard of review either for 

findings of fact or for conclusions of law, to reverse the 

amount of back pay found by the Human ~ights ~omrnission and 

affirmed by the ~istrict Court. We therefore affirm. 

We Concur: