NO. 87-05 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

WAYNE E. MAHAN, 

Plaintiff and Appellant, 

-vsFARMERS UNION CENTRAL EXCHANGE, INC., 

doing business as CENEX, a foreign 

corporation, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Robert Holmstrom, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Whalen & Whalen; Timothy J. Whalen argued, Billings, 

Montana 

Boschert & Roschert; Rosemary C. Roschert, Billings, 

Montana 

For Respondent : 

Veeder, Broeder & Michelotti; David A. Veeder argued, 

and Robert J. Waller argued, Billings, Montana 

For Amicus Curiae: 

James Zion, Montana Human Rights, Helena, Montana :-3 

<-3 5.: c, I - 

ir. 11) 

-1 7 " 1 Submitted: October 27, 1988 - , .- - . - 

! -3 . . .- 'f Decided: January 24, 1989 
Mr. Chief Justice J. A. Turnage delivered the Opinion of the 

Court. 

Wayne E. Mahan appeals from a judgment based on a jury 

verdict denying him damages against the Farmers Union Central 

Exchange, Inc. (Cenex) , in an action brought by Mahan in the 

District Court, Thirteenth Judicial District, Yellowstone 

County. We reverse and remand for a new trial. 

On February 16, 1983, Wayne E. Mahan was the head development engineer at the Laurel Refinery operated by Cenex. 

His employment was terminated on that date, effective March 

1, 1983. Mahan was sixty years old at the time, and had 

worked for more than 30 years for Cenex. 

The jury verdict decided against Mahan on two issues, 

finding: (1) that Cenex was not guilty of age discrimination 

in terminating Wayne Mahan's employment, and (2) that Cenex 

had not breached an implied covenant of good faith and fair 

dealing in terminating Mahan's employment. 

We will state other facts as they become pertinent. 

SHOULD MAHAN'S CHALLENGES TO JURORS FOR CAUSE HAVE REEN 

GRANTED ? 

Mahan urges as a principal issue on appeal that the 

District Court erred in failing to grant challenges for cause 

made by Mahan against jurors McCann and Anderson in the voir 

dire selection of the jury. 

With respect to juror McCann, the followinq col.loquy 

occurred: 

MR. MICHAET, J. WHALEN: Thank you. 

Mr. McCann, you I believe have sat on a case that T 

tried during March of this vear; isn't that 

correct? 

MR. McCANN: That's correct. 
MR. MICHAEL J. WHALEN: First, my memory is that on 

the special verdict that was returned in that case, 

that you answered differently than the remainder of 

the jurors on the issue of punitive damages. I'll 

ask you whether or not there is something about 

punitive damages that is offensive to you in 

nature? 

MR. McCANN: Yes, there is. 

MR. MICHAEL J. WHALEN: Is it your position that 

you would not award punitivie damages in any case, v 

no matter what instructj-ons the Court might give 

you? 

MR. McCANN: Yes, that's correct. 

MR. MICHAEL J. WHALEN: Your Honor, I respectfully 

challenge this juror for cause. 

THE COURT: Mr. Veeder, do you wish to inquire of 

the juror? 

MR. VEEDER: Just briefly, your Honor. Mr. McCann, 

if you were given a jury instruction by the Court 

that indicated to you that punitive damages were a 

proper award or could be found to be a proper award 

by the jury in this case, and after hearing all of 

the evidence set forth during the trial and knowing 

what that instruction was, do you believe you could 

not award punitive damages? 

MR. McCANN: I don't think I would. 

THE COURT: Mr. McCann, the Court will make an 

inquiry. It isn't a question of one asking whether 

you will or wouldn't, depending on because you 

haven't heard the evidence; we all recognize that. 

The question is if the Court were to instruct you 

that punitive damages were recoverable, if you 

found certain facts to be true, and if you found 

those facts, would you then follow the Court's 

instructions? 

MR. McCANN: Yes, I would. 

THE COIJRT: All right. The challenge is denied. 
MR. MICHAEL J. WHALEN: Do you know of any other 

reason, Mr. McCann, why you couldn't be fair and 

impartial if you're selected in this case with the 

information you have at this point as to the nature 

of the case? 

MR. McCANN: No, I don't. 

In the voir dire questioning of juror Anderson, the 

following discussion took place. 

MR. MICHAEL J. WHALEN: Mr. Anderson, have you sat 

on any of the juries since you've been on this 

panel? 

MR. ANDERSON: (No oral response.) 

MR. MICHAEL J. WHALEN: I believe you've been on 

the panel since last July. Have you sat on any 

juries during the last year? 

MR. ANDERSON: No. 

MR. MICHAEL J. WHALEN: Your answer is no? 

MR. ANDERSON: No. The answer is yes. 

MR. MICHAEL J. WHALEN: Are you still workinq as an 

insurance broker at the present time? 

MR. ANDERSON: I'm retired. 

MR. MICHAEL J. WHALEN: You're retired? 

MR. ANDERSON: I do have some -- 

MR. MICHAEL J. WHALEN: I can't hear you. 

MR. ANDERSON: I said I've been retired. 

MR. MICHAEL J. WHALEN: During the years that you 

were working as an insurance broker, did you do any 

business with the Cenex refinery in Laurel or St. 

Paul, Minnesota? 

MR. ANDERSON: No. 

MR. MICHAEL J. WHALEN: Have you had any direct 

business relationships with Cenex? 
MR. ANDERSON: No, sir. 

MR. MICHAEL J. FJHALEN: You have worked in the 

insurance industry for a number of years, as I 

understand. If the Court should instruct you on 

the subject of punitive damages in this case, would 

you be willing to consider the law on that subject 

and award punitive damages if you felt that the 

facts justified it? 

MR. ANDERSON: I was in Helton Life Insurance. 

MR. MICHAEL J. WHALEN: But is there anything -- 

Strike that. 

Punitive damages can be allowed by a jury for the 

sake of example, if the Court tells you it's a 

matter that you can consider. If the Court should 

tell you that it is a matter that you can consider 

in this case, would you be willing to consider it 

fairly and openly? 

MR. ANDERSON: Yes, sir. 

MR. MICHAEL J. WHAI,EN: You'd be able to follow t.he 

law as given to you by the Court? 

MR. ANDERSON: Yes, sir. 

MR. MICHAEL ANDERSON: Do you know of any reason 

why you couldn't be fair and impartial if you are 

selected as a trial juror in this cause? 

MR. ANDERSON: Would you state that again, sir? 

MR. MICHAEL J. WHALEN: Do you have difficulty 

hearing? 

MR. ANDERSON: Somewhat, yes. And I' have a little 

speech -- 

MR. MICHAEL J. WHALEN: Excuse me? 

MR. ANDERSON: (No oral response.) 

MR. MICHAEL, J. WHALEN: Do you have difficulty 

hearing me? 

MR. ANDERSON: NO, not now. 
MR. MICHAEL J. WHALEN: Do you feel you would. have 

difficulty hearing the evidence in this case? 

MR. ANDERSON: I could hear the evidence. 

MR. MICHAEL J. WHALEN: Well, do you think you 

could hear it all as we're going along? 

MR. ANDERSON: Yes, I do. 

MR. MICHAEL J. WHALEN: Do you know of any reason 

why you couldn't be fair and impartial if you are 

selected as a juror in this case? 

MR. ANDERSON: No reason. 

MR. MICHAEL J. WHALEN: Do you use a hearing aid at 

all? 

MR. ANDERSON: Not at all. 

MR. MICHAEL J. WHALEN: When you were in the insurance business, did you manage or oversee other 

employees? 

MR. ANDERSON: That's right, I do -- I have. 

MR. MICHAEL J. WHALEN: How many employees did you 

have? 

MR. ANDERSON: It would vary for the insurance 

agents. 

MR. MICHAEL J. WHALEN: What would be, generally, 

the number that you would have? 

MR. ANDERSON: Well, usually it would be about 25. 

MR. MICHAEL J. WHALEN: Having been in business 

yourself and managed 25 people on some occasions, 

do you feel that you would be inclined to favor 

management as distinguished from the plaintiff, an 

employee in this case? 

MR. ANDERSON: Could YOU -- 

MR. MICHAEL J. WHALEN: Do you feel that you would 

be inclined to favor management in this case because of --- 
MR. ANDERSON: Oh, Yes. 

MR. MICHAEL J. WHALEN: -- because of your history? 

MR. ANDERSON: Yes. 

MR. MICHAEL J. WHALEN: You would favor management. 

That would he over the plaintiff, who is an 

employee? 

MR. ANDERSON: (NO oral response.) 

MR. MICHAEL J. WHALEN: Whatever the evidence is, 

as I understand your answer, you would favor management; is that correct? 

MR. ANDERSON: I would favor management because I 

was hiring and -- agents, and it wouldn't be 25 

that would seek -- and sometimes it -- they'd quite 

[sic] -- you know -- and go to -- they'd quit, yo11 

know, and go to other -- 

MR. MICHAEL J. WHALEN: When you tell me that you 

would favor management in this case, is that a 

fixed and abiding feeling that you have that you 

should do? 

MR. ANDERSON: I prefer the management part, yes. 

MR. MICHAEL J. WHAL,EN: You wou3.d favor management 

in this case? 

MR. ANDERSON: Yes. 

MR. MICHAEL J. WHALEN: Your Honor, T respectfully 

challenge the juror for cause. 

THE COURT: Mr. Veeder? 

MR. VEEDER: Could you tell me what you mean when 

you say favor management? 

MR. ANDERSON: I prefer to -- instead of being 

strictly agent, I like to manage, and I would 

recruit, too, and -- 

MR. VEEDER: That was your job before? 

MR. ANDERSON: Yes, sir. 
MR. VEEDER: But -- 

MR. ANDERSON: I was in the business 27 years, and 

I retired the end of '79. 

MR. VEEDER: Okay. But the question, sir, is 

whether you could hear the evidence in this case 

and wait until you fully heard the evidence before 

making up your mind, and when you did so, could you 

reach a verdict in a fair and impartial basis, 

being fair to both the plaintiff and to the defendant in this case? 

MR. ANDERSON: Yes, sir. 

MR. VEEDER: Could you do that? 

MR. ANDERSON: Yes, sir. 

MR. VEEDER: So any favoritism that you might feel 

for or towards management you could set aside and 

hear the evidence fairly? 

MR. ANDERSON: Yes, sir. 

MR. VEEDER: We have no further questions. 

THE COURT: Mr. Anderson, when you said you favored 

management, did you mean that while you were working, you preferred to be in management rather than 

out selling? 

MR. ANDERSON: That's right. 

THE COURT: All right. The challenge is denied. 

MR. MICHAEL J. WHALEN: I renew the challenge, your 

Honor, for the reason that it is apparent from what 

has taken place that the prospective juror will not 

be adequately able to follow the proceedings in 

this case. He has repeated on more than one occasion that he would favor management in making a 

decision in the case. 

THE COURT: The challenge is denied. 

MR. MICHAEL J. WHALEN: Do you know of any other 

reasons that might make it difficult for you to be 

fair and impartial in this case, Mr. Anderson? 
MR. ANDERSON: Would you repeat that, please? 

MR. MICHAEL J. WHALEN: Do you know of any other 

reason why it would be difficult for you to be fair 

and impartial in this case? 

MR. ANDERSON: Mot at all. I wouldn't be partial. 

MR. MICHAEL J. WHALEN: Sitting where you are at 

the present time, are you inclined to decide this 

case in favor of the defendant at this point? 

MR. VEEDER: I object, your Honor. 

THE COURT: Sustained. 

When a prospective juror has an unqualified opinion or 

belief as to the merits of the action, that juror is subject 

to a challenge for cause. Section 25-7-223, MCA. Generally, 

the determination as to whether a prospective juror is qualified or unqualified is left to the sound discretion of the 

trial court. This, because the trial court has the advantage 

of observing the witness and accordingly the court's decision 

to allow a juror to sit should not be set aside unless the 

error is manifest, or there is shown a clear abuse of discretion. State v. Williams (1979), 185 Mont. 140, 150, 604 ~.2d 

1224, 1229; State v. Russell (1925), 73 Mont. 240, 249-250, 

In this case plaintiff's counsel was forced to use two 

of his peremptory challenges to excuse prospective jurors 

McCann and Anderson from the case. He utilized all of his 

peremptory challenges, and points out in brief that there 

were other selected jurors against whom he would have used 

such challenges. 

In Abernathy v. Eline Oil Fields Services, Inc. (1982), 

200 Mont. 205, 650 P.2d 772, we had a case where the District 

Court intervened during voir dire examination of a juror to 

rehabilitate the qualifications of the juror. In Abernathy, 
the trial court's discussion with the prospective juror was 

more extended. Generally we apply the rule that the trial 

court is in a better position to judge the prejusice of 

jurors, and that its decision will not be set aside unless 

the error is manifest or there is a clear abuse of discretion, Anderson v. Burlington Northern Inc. (Mont. 1985) , 709 

P.2d 641, 42 St.Rep. 1738, even where there has been a forced 

use of a peremptory challenge. Abernathy, supra. In this 

case, however, the error is manifest. McCann obviously had a 

fixed scruple against punitive damages and had followed his 

scruple in a previous jury trial. Anderson not only stated 

he preferred the management side but appeared to have difficulty in speaking and hearing. 

The District Court, of course, may supplement the voir 

dire examination by his further inquiry, as permitted by Rule 

47 (a) , M. R.Civ. P. However, in each case here the inquiry by 

the District Court was of a general nature, and not pointedly 

directed to the manifest "existence of a state of mind in the 

juror evincing enmity against or bias in favor of either 

party.'' Section 25-7-223(7), MCA. Mahan's counsel was thus 

forced to waste peremptory challenges he might have used 

elsewhere on the panel. 

In Montana the right to a jury trial is secure to alland remains inviolate. Art. 11, Section 26, 1972 Mont. 

Const. Concomitant with that right is the right to a faj-r 

and impartial jury. 

Because we reverse and remand for a new trial, there are 

other matters raised in the briefs in this appeal which may 

be subject to controversy in any retrial. Accordingly, we 

will examine those issues for that purpose, pursuant to 5 

3-2-204 (3) , MCA. 
DID THE COURT COMMIT ERROR IN LIMITING THE TESTIMONY OF 

PLAINTIFF'S STATISTICIAN WITH REGARD TO AGE DISCRIMINATION? 

In Montana, an employee has the right to obtain and hold 

employment without discrimination as to age. Section 

49-1-102(1), MCA. Courts have recognized that statistics are 

commonly used in discrimination cases. As the United States 

Supreme Court has observed: 

. . . Our cases make it unmistakably clear that 

" [sl tatistical analyses have served and will continue to serve an important role" in cases in which 

the existence of discrimination is a disputed 

issue. 

Teamsters v. United States (1977) 431 U.S. 324, 339, 97 S.Ct. 

1843, 1856, 52 L.Ed.2d 396, 417. 

In this case the court limited the plaintiff's statistical expert to testimony of statistical tests performed on the 

Laurel nonunion employees. The District Court refused to 

allow the expert to testify to results from a statistical 

analysis of company-wide terminations of employment including 

union members. 

Obviously, the inclusion of union employees in the 

statistical population, whose employment contracts contained 

seniority rights, would skew the figures affecting older 

terminated nonunion employees as to the probability that 

older nonunion employees were discriminated against on the 

basis of age. The court was correct in so limiting the 

testimony. 

The result of the limitation was that the entire population of terminated employees considered by defendant's statistical expert was forty-nine persons. On cross-examination 

of defendant's statistical expert, the plaintiff's counsel 

used an elementary statistics textbook which indicated such a 

number was insufficient for a chi-squared test. The plaintiff is not now barred from reinforcing the textbook with 
live testimony on retrial relating to the statistical effect 

of low-numbered samples. 

DID THE COURT COMMIT ERROR IN LIMITING AND EXCLUDING TESTIMONY OF PLAINTIFF'S LABOR RELATIONS EXPERT? 

The District Court denied plaintiff's offer of proof 

through the witness Allan D. Brown that the policies of the 

defendant were d-eficient in good personnel practices; that 

the defendant failed to act in good faith, based upon the 

information made available to Brown from the case; that the 

policies of the defendant in connection with the termination 

of personnel in a reduction of force proceedings were not 

adequate; that the manner of which Mahan was terminated was 

not conducted fairly through a good personnel policy; and 

that the actual termination of the plaintiff was unfair under 

all the circumstances of the case. 

In denying the offer of proof, the District Court indicated that it would limit the testimony of the expert to the 

personnel manual then in existence, and that it would not 

permit the witness to testify as to his opinion that the 

company may have breached the implied covenant of good faith 

and fair dealing. The District Court indicated that it was 

basing its decision upon the cases of Crenshaw v. Bozeman 

Deaconess Hospital (1984), 213 Mont. 488, 693 P.2d 487, and 

Flanigan v. Prudential Federal Savings & Loan (Mont. 1986), 

720 P.2d 257, 43 St.Rep. 941. 

In Crenshaw, relying on Rule 702, M.R.Evid., that the 

testimony of an expert is admissible if it will "assist the 

trier of fact to understand the evidence or to determine a 

fact in issue," this Court said: 

The trier of fact's experience does not extend to 

Hospital disciplinary guidelines, much less the 

ability to evaluate the propriety of such guidelines. We find Dr. Vinton's perspective assisted 
the jury to understand the evidence and ultimately 

the breach of implied covenant of good faith and 

fair dealing question at issue. Further, the 

Hospital's counsel moved in limine to exclude Dr. 

Vinton's testimony. The argument was presented to 

the trial judge. The trial court in its broad 

discretion admitted the expert testimony. The 

trial court's order will not be disturbed on appeal 

in the absence of a clear showing of a manifest 

abuse of discretion. [Citing cases.] 

Crenshaw, 213 Mont. at 405, 693 P.2d at 495. 

In Crenshaw, this Court also noted: 

The instant case is not a scenario of simple facts. 

Fault arising from breach of implied covenant of 

good faith and fair dealing is not easily comprehensible to the average person. Dr. Vinton's 

testimony was based on professional expertise and 

experience which the individual jury members were 

unlikely to possess. Her testimony assisted the 

trier of fact by providing the jury with information and a prospective [sic] beyond the common 

experience of a lay juror. [Citing authority.] 

Crenshaw, 213 Mont. at 502, 693 P.2d at 494. 

In Flanigan, this Court approved the foregoing statements from Crenshaw, and went on to state that the District 

Court in Flanigan had acted properly in allowing expert 

testimony interpreting written employment policies of the 

employer. 

It appears that the order of the District Court during 

trial correctly interpreted our holdings in both Crenshaw and 

Flanigan. In the case at bar, the court did permit experts 

for both parties to testify as to whether the company complied with or violated its own policies. That ruling, of 

course, followed Crenshaw and Flanigan. 

As to whether the District Court erred in disallowing 

opinion testimony from the expert about the covenant of good 

faith and fair dealing, we are unable to say. The offer of 

proof did not include t.he specifics on which the proper 
testimony of the expert witness would be based. We only 

restate that under Flanigan, based on Crenshaw, opinion 

testimony from expert witnesses considering the covenant of 

good faith and fair dealing is admissible, provided that 

foundation testimony is in the record, and the conditions of 

Rule 702, M.R.Evid., that the specialized knowledge of the 

expert will assist the trier of fact to understand the evidence or to determine the fact of issue are met. Though not 

explicitly stated in the record, it appears that part of the 

reason for the District Court's refusal of the offer of proof 

in this case was based upon the expert's background and 

experience, since he had made no study of nationwide policies 

and practices relating to terminations in reductions in 

force. 

DID THE DISTRICT COURT ERR IN ALLOWING DEFENDANT'S STATISTICIAN TO TESTIFY AS TO WHAT WAS SIGNIFICANT STATISTICALLY IN 

SHOWING AGE DISCRIMINATION, RATHER THAN LIMITING HIS TESTIMONY TO EXPLAINING WHAT THE TESTS SHOWED IN THE SAME MANNER 

THAT PLAINTIFF'S STATISTICIAN WAS LIMITED? 

Defendant's statistician, Ira Chorusa, testified as to 

three statistical tests that he applied to finish exhibit 

13A, an exhibit through which plaintiff's expert had earlier 

testified which showed age discrimination. In response to a 

question from defendant's counsel as to whether he had found 

any statistical significance in the outcome of his tests, he 

responded: 

A. Well, there is no statistical significance as 

an outcome of any of these tests. 

Q. What does that mean? 

A. What that means is that there is no evidence, 

based on these tests, that age was used as a 

factor. 
The defendant's counsel objected on the grounds that the 

testimony went beyond what he was allowed when his expert was 

testifying. In chambers, the District Court examined the 

previous testimony of plaintiff's expert: 

THE COURT: I have before me the series of questions that you posed to your expert that you had 

and the answers which you had typed in advance, Mr. 

Whalen, and the last question was, "What does that 

mean?" The answer which is typed, and as I recall, 

the answer was very close to this, if not almost 

verbatim, "It means that this result would occur b~7 

chance only 13% of the time, or conversely, the 

results are consistent with the pattern of discrimination as to age in terminating employees 87% of 

the time. I' 

The District Court made it clear in the discussion in 

chambers that it would not permit either expert witness to 

testify that there was or was not actual age discrimination 

in this case. It appears that the answer of the defendant's 

expert came very close to stating that there was no evidence 

of age discrimination, although he may have been referring 

merely to plaintiff 's exhibit 13A. In any event, we affirm 

the position of the District Court that on retrial the statisticians may testify that their statistical tests show or do 

not show patterns of discrimination based on age, but may not 

testify to the ultimate conclusion that age discrimination in 

his termination was or was not exercised against Wayne Mahan 

in this case. The jury should be the final arbiter of that 

issue. Rule 704, M.R.Evid. 

SHOULD THE COURT HAVE INSTRUCTED THE JTJRY ON THE ISSUE OF 

RETALIATION? 

It is an unlawful discriminatory practice for any employer to discriminate against an individual because he has 

filed a complaint, testified, or participated in any manner 
in an investigation or proceedings before the Human Riqhts 

Commission. Section 49-2-301, MCA. 

Plaintiff testified that he was retaliated against by 

his employer in that the employer refused to give him a 

letter of reference because he had sued the company, and that 

he was not included in the company and employee functions 

after he had sued the company. 

Under the statutes, acts of retaliation for participating in proceedings before the Human Rights Commission are 

discrimination actions separate and apart from the claim of 

d-iscrimination in the original proceedings. It might possibly be considered evidence of bad faith in the original 

termination of employment as well as in the retaliation. 

Plaintiff was therefore entitled to instructions to the jury 

based on his claim of retaliation, as it was for the jury to 

determine whether such retaliation actually existed. He was 

further entitled to comment on such retaliation in oral 

argument. 

DID THE DISTRICT COURT ERR IN REFUSING TO ADMIT TESTIMONY OF 

THE COMMISSIONER'S COMPLIANCE OFFICER, JERRY KECK? 

In hearing the dispute between Mahan and Cenex, Keck 

found that there was "probable cause" to believe that Cenex 

discriminated against Mahan on the basis of age. Mahan offered the determination testimony at the District Court. 

Mahan directs our attention to Rule 803 (8) (C) of the Federal 

Pules of Evidence which allows public records and reports. 

The following are not excluded by the 

hearsay rule, even though the declarant 

is available as a witness: 

(8) Public records and reports. Records, 

reports, statements or data compilations, in any form, of public officers 

or agencies, setting forth . . . (C) in 
civil actions and proceedings and 

against the Government in criminal 

cases, factual findings resulting from 

an investigation made pursuant to an 

authority granted by law, unless the 

sources of information or other circumstances indicate lack of trustworthiness. 

However, the rule as adopted in Montana, Rule 803 (8) (iv) 

M.R.Evid., states: 

[Not excluded by the hearsay rule are3 . . . records, reports, statements, or 

data compilations in any form of a 

public office or agency setting forth 

its regularly conducted and regularly 

recorded activities, or matters observed 

pursuant to duty imposed by law and as 

to which there was a duty to report, or 

factual findings resulting from an 

investigation made pursuant to authority 

granted by law. The following are not 

within this exception to the hearsay 

rule: . . . (iv) factual findings resulting from special investigation of a 

particular complaint, case, or incident. 

The Commissioner's comments to the Montana Code provides 

that it adopted the uniform rule (1974), rather than the 

federal rule "because it was clearer than the Federal Rule 

and because it expressed better policy with certain reports 

in requiring the official to testify rather than admitting 

his report as a hearsay except.ion." 

The Commission carefully considered the exceptions to 

Rule 803(8), before adopting the uniform rule. The very 

investigation information that the federal rule allows is 

specifically excluded in the Montana rule. The District Court 

did not err in excluding the testimony offered by Mahan. 

Another consideration concerning v~hether the testimony 

of the compliance officer is allowable is whether as an 
expert witness he can testify as to the determination he ma.de 

for the Human Rights Commission. Rule 704, M.R.Evid., states: 

Opinions on ultimate issue. 

Testimony in the form of an opinion or 

inference otherwise admissible is not 

objectionable because it embraces an 

ultimate issue to be decided by the 

trier of fact. 

The Advisory Committee's Note to Federal Rule 704 (the rule 

being identical to the Montana rule) , 56 F.R.D. 183, 284-85 

(1972) indicates: 

. . . that the "basic approach to opinions, lay and expert, in these rules is 

to admit them when helpful to the trier 

of fact." . . . the rule is not intended 

to allow all opinions and would exclude 

those "which would merely tell the jury 

what result to reach. . ." 

It was Keck's intention to testify that he determined 

that Mahan had been discriminated against because of his age. 

This is a determination for the jury to make. The issue here 

is not so complex that the jury is not able to determine 

whether there was age discrimination. Moreover, there was 

other sufficient evidence offered by both parties from which 

the jury could make a reasonable determination of whether 

there was age discrimination. 

OTHER SPECIFICATIONS OF ERROR 

We determine that the court properly instructed the jury 

with respect to the issues of bad faith and implied covenant 

of good faith and fair dealing in this cause. We find no 

error in the offered instructions on these subjects which 

were refused by the court. 

We conclude it was within the discretion of the District 

Court to exclude refinery yield statements; evidence respecting new construction at. the refinery; whether the reduction 
of force was caused by the mismanagement of the company; the 

relationship of the cost of labor to the cost of producing a 

refined product at the Laurel refinery; the benefits of 

Mahan's job to the company and his ability to fill the job; 

and the exclusion of exhibit 30 which does not particularly 

relate to age discrimination. Moreover, it was not error to 

allow defendant to offer evidence showing the necessity of 

the cost containment program which the defendant contends led 

to the reduction in force. 

Accordingly, the judgment of the District Court is 

reversed, and the cause remanded to the District Court for 

further proceedings. Costs to plaintiff. 

Chi>f Justice 

We concur: 

Justices 

- 19 - 
Justice John C. Sheehy, concurring and dissenting. 

I concur with the majority opinion but dissent from its 

holding that the "reasonable cause" finding of the state 

Human Rights Commission and the testimony of its compliance 

officer are not admissible. 

After his discharge, Mahan filed a complaint of age 

discrimination in employment with the Federal Equal 

Employment Opportunity Commission (EEOC). That agency 

deferred investigation of Mahan's complaint to the Montana 

Human Rights Commission. Mahan filed a perfected state 

complaint with the Montana Human Rights Commission on August 

19, 1983, based on § 49-2-303, MCA. 

After the Commission's staff investigated the complaint, 

it made a written finding of reasonable cause to believe 

Mahan had been subjected to age discrimination in his 

employment with Cenex. The written finding was made on 

August 16, 1984. On October 5, 1984, because the complaint 

had been pending for more than one year at that point (S 

49-2-509(1)(b), MCA), at the request of Cenex, the Commission 

issued a "right to sue letter." This procedure compelled 

Mahan to file a de -- novo action in District Court (5 

49-2-509 (7) , MCA. ) . Mahan filed his complaint in the 

District Court on December 6, 1984, including his age 

discrimination claim with other theories of recovery against 

Cenex. 

In a special interrogatory, the jury found that Cenex 

was not guilty of age discrimination in terminating Wayne 

Mahan. 

During the course of the trial the District Court ruled 

that Jerry Keck, the compliance officer of the Human Rights 

Commission, could not give testimony as to the regular 

procedures of the Human Riqhts Commission in investigating a 
complaint of age discrimination or his testimony as to where 

he obtained the information used in making a findinq. The 

court further ruled that the written reasonable cause findinq 

issued by the Commission was not admissible. The Human 

Rights Commission found that 5 younger engineers were hired 

and that 4 older engineers were discharged. One engineer was 

hired just 6 months before notice was given to Mahan of his 

discharge. Mahan also offered testimony through Keck that by 

the action of Cenex in refusing severance pay to Mahan after 

he filed an age discrimination complaint, Cenex may have been 

in violation of the retaliatory provision of the Human Rights 

Act. (Section 43-2-301, MCA.) 

The Fluman Rights Commission filed in this appeal an 

amicus curiae brief. The purpose of the amicus brief was to 

inform the court of the development of law on the 

admissibility of Commission findings, the testimony of its 

staff members, and the use of statistics gathered durinq 

investigation as "probative evidence." 

The District Court refused the written finding of 

reasonable cause based on Rule 803 (8) (iv) , M. R. ~vid. The 

court denied the oral testimony of Jerry Keck also. 

Thus, there are two subissues which should be determined 

by us; one, whether the report of reasonable cause was 

admissible; and two, whether the oral testimony of Jerry Keck 

should have been allowed. 

In Chandler v. Roudebush (1976), 425 U.S. 840, 48 

L.Ed.2d 416, 96 S.Ct. 1949, the United States Supreme Court 

determined that such a report was admissible, relying on S 

803 (8) (c) of the Federal Rules of Evidence. Cenex contended 

before the District Court (and the District Court agreed) and 

now contends that the Rule 803(8) as adopted in Montana is 

different from the federal rule and therefore Chandler i.s not 

authority. 
The pertinent part of Rule 803, M.R.Evid., is as 

follows: 

Rule 803. Heresay exceptions; availability - of 

declarant immaterial. 

The following are not excluded by the hearsay rule, 

even though the declarant is available as a 

witness: 

. . . (8) Public Records and Reports. To the 

extent not otherwise provided in this paragraph, 

records, reports, statements, or data compilations 

in any form of a public office or agency setting 

forth its regularly conducted and regularly 

recorded activities, or matters observed pursuant 

to duty imposed bv law and as to which there was a 

duty to report, or factual findings resulting from 

an investigation made pursuant to an authority 

granted by law. The following are not within this 

exception to the hearsay rule: . . . (iv) factual 

findings resulting from special investigation of a 

particular complaint, case, or incident; and (v) 

any matter as to which the sources of information 

or other circumstances indicate lack of 

trustworthiness. 

The Montana Supreme Court Commission on Rules of Evidence, in 

adopting what is now Rule 803 (8) purposely departed from the 

federal rule. It explained why in its comment contained in 

its report to this Court on November 3, 1976: 

Exception (8). Public records and reports. 

This exception is not the same as Federal Rule 

803(8), but is identical- to IJniform Rule (1974) 

803 (8) . The Commission chose to adopt the Uniform 

provision because it was clearer than the Federal 

Rule and because it expressed better policy with 

certain reports in requiring the official to 

testify, rather than admitting his report as a 

hearsay exception. 

The guarantee of trustworthiness of this 

exception can be found partly under Exception (6), 

records of regularly conducted activity, partly 

under the assumption that official duty is 

regularly performed [R.C.M. 1947, Section 
93-1301-7 (14) ] and "the unlikelihood that he will 

remember details independently of the record." 

Adviscry Committee's Note, Supra 56 F.R.D. at 311. 

This exception Is consistent with existing Montana 

law except that it clarifies several areas where 

official reports are to be excluded. R.C.M. 1947, 

Section 93-1001-32, provides the entries in 

official books or records, made in the performance 

of official duty are prima facie evidence of the 

facts stated therein. R.C.M. 1947, Section 

93-901-1, et. seq., the Uniform Official Reports as 

Evidence Act, modernizes this exception to the 

hearsay rule. Section 93-901-1, MCA, provides: 

"Written reports or findings of fact made by the 

officers of this state, on a matter within the 

scope of their duty as defined by statute, shall, 

insofar as relevant, be admitted as evidence of the 

matter stated therein." The adoption of the 

exception is intended to remove the restriction of 

admitting only reports from state officials, found 

in the statute and applied in Richardson v. 

Farmers' Union Oil Co., 131 Mont. 535, 553, 312 

P.2d 134 (1957). Note that a police report was 

excluded in a civil case, but on grounds that it 

stated the cause of an injury, in Gagnier v. Zook, 

141 Mont. 214, 377 P.2d 101 (1962). This exception 

is inconsistent with State v. Snider, 168 Mont. 

220, 541 P.2d 1204, 32 St.Rep. 1056, 1062 (1975), 

which held a state chemist's report admissible 

under Section 93-901-1, RCM (1947), and so this 

case is overruled by this exception. 

The comment of the Commission made it clear that in 

those cases where reports of agency action are refused, it is 

"better policy with certain reports in requiring the official 

to testifv." The refusal therefore of the District Court to 

allow the testimony of Jerry Xeck flies in the face of the 

reason adopted by the Commission in refusing the report in 

the first place. 

There is an internal conflict within the present form of 

Rule 803(8). In the first sentence it makes admissible 

"factual findings resulting from an investigation made 

pursuant to authority granted by law." The authority of the 
Human Rights Commission to investigate age discrimination 

cases is found j.n Chapter 2, of Title 49, MCA. Therefore 

under the first sentence of 803(8) its report of reasonable 

cause should have been admitted. However, subparagraph (iv) 

"factual findings resulting from special investigation of a 

particular claim, case or incident," seems to take away what 

is granted in the first sentence. 

In the face of the ambiguity contained in Montana's S 

803 (8) , the better practice is to fol low the examples of the 

federal courts in construing the reports of the EEOC. The 

court of appeals for the Ninth Circuit strongly favors the 

admission of such reports as these in federal cases. Bradshaw 

v. Zoological Society of San Diego (1978), 569 F.2d 1066; 

Plummer v. Western International Motels Inc. (1978), 656 F.2d 

502. In that Court of Appeals, whose jurisdiction includes 

Montana, under the federal system (it is also true in our 

system) the report to the Court of the Commission requires a 

-- de novo proceeding. The trier of fact therefore must 

determine from the beginning and on its own whether or not an 

infraction of the discrimination statutes occurred. The 

court said in Plummer: 

A civil rights plaintiff has a difficult burden of 

proof and should not be deprived of persuasive 

evidence. We therefore hold that the plaintiff has 

a right to introduce an EEOC probable cause 

determination in a Title VII lawsuit, regardless of 

what other claims are asserted, or whether a case 

is tried to a judge or jury . . . 

656 F.2d at 505. 

The weight, of course, of this evidence is for the jury7 

to decide. 

Amicus brief points to a jury instruction in Gilchrist 

v. Jim Slemons Imports, Inc. (9th Cir. 19861, 803 F.2d 1488, 

1500-1501, wherein the Court approved: 
The District Judge instructed the jury that "the 

letter need be given no greater weight than any 

other evidence in deciding the age discrimination 

claim" and "that you, the jury, and not the EEOC 

are the sole judges of whether or not there was a 

violation of the Age Discrimination Employment 

Act." 

The reason for admitting such reports was expressed by 

Smith v. Universal Services, Inc. (5th Cir. 1972), 454 F.2d 

154: 

. . . The action of the EEOC is not agency action 

of a quasi-judicial nature which determines the 

rights of the parties subject only to the 

possibility that the reviewing courts might 

conclude that the EEOC's actions are arbitrary, 

capricious or an abuse of discretion. Instead, the 

civil litigation at the district court level 

clearly takes on the character of a trial de novo 

completely separate from the actions of the EEOC. 

(Citation omitted. ) It is thus clear that the 

report is in no sense binding on the district court 

and is to be gj-ven no more weiqht than any other 

testimony given at trial. 

This is not to say, however, that the report is 

inadmissible. A trial de novo is not to be 

considered a trial in a vacuum. To the contrary, 

the district court is obligated to hear evidence of 

whatever nature which tends to throw factual light 

on the controversy and ease its fact-finding 

burden. 

454 F.2d at 157. 

Though the Court of Appeals for the Ninth Circuit holds 

such reports admissible as a matter of right, its view of 

admissibility is by no means the minority view. Courts 

considering admissibility generally determine that the 

question is discretionarv with the courts, and as the brief 

of amicus points out, without burdening this opinion with 

extraneous citations, reports are admissible as "significant 

evidence , " as "discret.ionary, " "absent preiudice, " in the 
exercise of "sound discretion," "admissible unless shown not 

trustworthy," and similar holdings. 

We are also concerned about the impact that a ruling of 

inadmissibility for Commission reports would have on other 

areas of illegal discrimination. The Human Rights Commission 

concerns itself with not only age discrimination, but other 

discrimination in employment, in public accommodations, in 

housing, in financing and credit transactions, in education, 

in insurance and retirement plans, in maternity leave, and in 

discrimination by the state. Part 3, Chap. 2, Title 49, MCA. 

The better view, to be consistent with the Ninth 

Circuit, is to hold such reports admissible, and for the 

trial court to instruct the jury to give such reports only 

the weight they should be accorded. 

In like manner, the oral testimony of Jerry Keck should 

have been admitted by the District Court. As an agent of 

this State, making an investigation which is authorized by 

law, his findings of fact were admissible, and constituted 

probative evidence which would be an aid to the jury. 
Justice I?. C. Mcnonough dissents and concurs as follows: 

I dissent. The trial court's ruling on Mahan's 

challenges to jurors for cause was not clearlv erroneous, and 

I would affirm the jury's verdict. I concur, however, with 

the balance of the majority opinion. 

If Mahan's objection for cause to the two jurors was for 

a legal cause, this Court would be in as good a position as 

the trial court to decide the question. Instead, Mahan's 

objection goes to the grounds of unqualified opinion, belief 

as to the merits, or existence of the state of mind evincinq 

enmity against or biase in favor of a party. The majority 

has also alluded to Anderson's possible physical 

incompetency. Disqualification of a juror on any of these 

grounds is a question of fact to be decided by the trial 

judge. Rule 47 (a) , M.R.Civ.P. ; Simons v. Jennings (1935) , 

100 Mont. 55, 46 P.2d 704. By the very nature of a jury 

selection proceeding, the challenging party bears the burden 

of proof that the proposed juror should be dismissed for 

cause. Sirotiak v. H.C. Price Co. (Alaska 1988), 758 P.2d 

1271; City of Kotzebue v. Ipalook (Alaska 1969), 462 P.2d 75, 

77; Borman v. State (Mich.App. 1967), 229 A.2d 440; State IT. 

Davis (Ariz.App. 1983), 672 P.2d 480. For this Court to 

reverse a trial court's ruling on a question of fact, we must 

find that the ruling is clearly erroneous. Rule 52 (a!, 

M.R.Civ.P. 

As with any trier of fact, the District Court has the 

advantage of observing a prospective juror's demeanor and the 

tenor of his answers. Nonverbal communication skills are 

important on voir dire in the selection of a jury. See, V. 

Starr & M. McCormick, Jury Selection (1985), Chapters 11, 12, 

13 and 14. The look on a prospective juror's face sometimes 

indicates whether he correctly understands the question and 
how his answer is to be taken. This Court discussed the 

nature of jury selection proceedings in Watson v. City of 

Bozeman (1945), 117 Mont. 5, 10-11, 1-56 P-2d 1781 lB1: 

While we feel that under the circumstances of this 

case, on proper motion, the trial court should call 

in other jurors, we cannot say that its failure to 

do so constituted an abuse of judicial discretion. 

As is said in State v. Russell, supra [73 Mont. 

240, 235 P. 7151 : "The examination of a juror on 

his voir dire is no more nor less than the taking 

of testimony on the issues raised as to his 

qualifications to serve in the case before the 

court. . . . The determination must be left largely 

to the sound discretion of the trial court 

(Scrihner v. State, 3 0kla.Cr. 601, 108 Pac. 422, 

35 L.R.A., N.S., 985; Commonwealth v. Minney, 216 

Pa. 149, 65 A. 31, 116 Arn.St.Rep. 763) and, in 

determining the question, the trial court, as in 

passing upon any other question of fact established 

by oral testimony, has the advantage of observing 

the witness on the stand, his demeanor and candor, 

or lack of candor, and a review of the court's 

rulings and findings should be governed by the same 

rules as in reviewing any other findings and 

judgment based thereon. They should not be set 

aside unless error is manifest, or there is shown a 

clear abuse of discretion." 

It is clear from the colloquy among McCann, Anderson and 

the attorneys in this case that the jurors expressed an 

opinion, belief or preference. It is also clear, however, 

that the jurors said they would put these aside and follow 

the instructions of the court. 

When jurors on voir dire make conflicting statements, it 

is a question of fact for the trial -judge to decide whether 

they can act impartially. People v. Duncan (~al. 19601, 350 

P.2d 103; Rule 47(a), M.R.Civ.P. The statements made by 

these prospective jurors in response to questions by the 

court (and counsel for Cenex in Anderson's case) conflicted 

with their prior responses to questioning hy counsel. The 
court committed no manifest, clearly apparent, or obvious 

error, even in the "cold" record. The majority 

mischaracterizes the court's questions as too general. In 

reality, counsel's questions were as general or more general 

than those asked by the court. 

The proper approach for deciding whether a juror is 

impartial is found in State v. White (1968), 151 Mont. 151, 

155-56, 440 P.2d 269, 272. In White, this Court quoted State 

v. Allison (1948), 122 Mont. 120, 199 P.2d 279, and said: 

"It is a difficult matter at best to ascertain the 

real state of mind of a prospective juror with 

respect to detecting the existence of bias or 

prejudice against one accused of crime. For that 

reason this court has said (State v. Russell, 73 

Mont. 240, 249, 235 P. 712, 715) that the 

determination of the qualification of a juror to 

serve in a case before the court 'must be left 

largely to the sound discretion of the trial 

court. ' Again in State v. Huffman, 89 Mont. 194, 

296 P. 789, 790, this court said: ' . . . the 

trial court is the judge of the weight to be given 

to the testimony adduced on a voir dire 

examination.' True, there are cases holding that 

when a witness has once admitted bias his 

subsequent statements that he can consider the 

evidence impartially should be viewed with caution. 

But granting the need for careful scrutiny of the 

testimony of a witness who has first said 'no' and 

then said 'yes, ' it still remains the province of 

the trial court to decide where the truth lies and 

with that determination the appellate court will 

not interfere unless a clear abuse of discretion is 

shown. State v. Russell, supra." 

Although this Court said in Watson and White that appellate 

courts would not interfere unless a clear abuse of discretion 

is shown, with the adoption of Rule 5? (a) , M.R.Civ.P., the 

test should be whether the court's decision is clearlv 

erroneous. 

The ma jority' s reference to the constitutional right of 

a iurv trial is inappropriate. Althouah Mahan's counsel was 
forced to use two peremptory challenges on McCann and 

Anderson, he did not challenge the jurors who replaced them 

for cause. None of the members of the jury that eventually 

sat in this case were challenged for cause by Mahan's 

counsel. The right to four peremptory challenges is only 

statutory. See, 5 25-7-224 (1) , MCA. The Legislature could 

raise or lower the numher of challenges if it so desired. Lt 

is merely a means of obtaining a fair and impartial jury. 

There is no constitutional right to exercise peremptory 

challenges and the loss of such a challenge is not of 

constitutional dimension. Ross v. Oklahoma (19883, U.S. 

, 108 S.Ct. 2273. 

YP&~ ustice 

Mr. Justice L. C. Gulbrandson: 

I concur with Mr. Justice McDonough. 
IN THE SUPREME COURT OF THE STATE OF MONTANA 

No. 87-005 

WAYNE E. MAHAN, 1 

Plaintiff and Appellant, 1 

v. 

FARMERS UNION CENTRAL EXCHANGE, 1 

INCS., doing business as 

CENEX, a foreign corporation, 1 

Defendant and Respondent. 1 

ORDER DENYING 

PETITION-OR $; 

PEHEARIN~ co 

-U 

m ZD 

The Court having considered the petition for rekeasng 

m n 

of Farmers Union Central Exchange, Inc., and the reep$nspof - 

u 

C TV 

Wayne E. Mahan, thereto, w CX, 

-i 

IT IS ORDERED: 

1. The Court strikes from its original opinion (P. 9, 

opinion) any reference that plaintiff's counsel used a 

preemptory challenge against juror Anderson. 

L. 3 In all else, the petition for rehearing is DENIED. 

3. Copies hereof to counsel of record. 

DATED this day of March 

Justices 

-1- 
"here is stricken from the dissent the two sentences 

commencing at the bottom of page 29 with the words "Although 

Mahan's" and ending on page 30 with the words ahan an's 

Counsel. " 

Justices R.C. McDonough and L.C. Gulbrandson would grant 

the petition for rehearing.