IN THE SUPREME COURT OF THE STATEOF MONTANA

P.W. BERRY COMPANY, INC., PetitionerandAppellant,-vsDEBRA FREESE,Respondent and Respondent.

APPEAL FROM: DistrictCourt of the First~udicial ~istrict:' Inand for the County of Lewis & Clark,

. cb.; TheHonorable Henry Loble,Judgepresiding. ir, COUNSELOF RECORD:

ForAppellant: LarryW. Jones;~arlington, Lohn & ~obinson, 

### is sou la, Montana

For Respondent: ~alerie A. Bashor; Sherwood LawOffice,

### iss sou la, Montana

Filed: Submitted on ~riefs:June 30, 1989 Decided: September 18, 1989Mr. 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 DebraFreese of $4,730.25 asback 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 findingsof factand conclusionsof law that were later essentially adoptedby the Human Rights Commission that sexdiscriminationhad in fact occurred,and that Freese

was entitled to the loss ofback wages with interestthereon. 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 improperlycalculated. Freese is a female construction laborerwho at the time of her first employment by Berry was classified as an "A" general laborer 

### by her union, with experience in theconstruction 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 concretepipe layer and general laborer. On~pril 24, 1984, Freese was dispatchedby 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 onApril 27, 1984,shewas 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. Sheworked for three days as a general laborer, but including work as apipe layer, fromAugust 22, 1984through August 24, 1984when again shewas terminated for "unsatisfactorywork." 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

sumwas an offset forwages 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 Freeseand 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 Commissionbecause of the limiteddays forwhich concretepipe work was available on the constructionproject. Berry contends that counsel for Freesehad spoken toMs. Erhardt a year before the hearing and was familiar with the informationMs. Erhardthad relating to her claim,but failed to identify this person as awitness 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 theparty offering the exhibit fails to give fair notice of its intent to offer the exhibit. In brief Berry claims that its counseldid not interviewMs. Erhardt because Freese did not list her as a witness that Freese would call at the hearing to supporther 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 thatBerry did not intend to callMs. Erhardt as a witness, counsel for Freese thereupon decided to callErhardt

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 objectionmadeby 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 nothave 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 onlywork for which shehad been called outby 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 ofback pay on thatnumber of days. Berry contends, however, that the Commission improperly imposed aburden ofproof upon Berrywith 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 discriminatorytreatment.

Freese contends, and we agree, that the Montana Human Rights Act is closely modeled after federal law and that wefollow 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),422U.S. 405,45L.Ed.2d 280, 95 S.Ct. 2362; Dolan

### v. School ~istrict No. 10, Deer Lodge County (1981), 195 Mont. 340, 636P.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 theCommission, Freeseestablished

a prima facie case that general labor was available for 127 days and that shewas eligible and capableof doing thatkind ofwork. Once aprima facie casewas established, theburden 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 shewas called out not only for concrete laying work but for general labor as well. Berry also claims that, throughMs. 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 terminationsof Freese by Berry nor the fact thatMs. Erhardtwas as available to Berry for such evidence as shewas 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 DistrictNo. 7

(1987),44 St.Rep. 531, 734 P.2d 209, findingsof factby an administrative agency are subject to the "clearly erroneous" standard of review and conclusionsof 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 ~omrnissionand affirmed by the ~istrict Court. We thereforeaffirm.

We Concur: