Beaver v. Montana Department of Natural Resources & Conservation

BEAVER, KIMBERLI McGRANE Appellant, Plaintiff and v. MONTANA DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION,

MICHAEL J. NESS, Respondents. Defendants No. 01-534. Submitted on Briefs March 2002. Decided October

2003 MT 287. 318 Mont. 35. 78 P.3d 857. Reynolds, and P. Motl Reynolds, James Appellant: For Sherwood, P.L.L.P., Helena. Yates, Anne MacIntyre and W. Respondents: Donald

For Department Conservation, Helena; ofNatural Resources and Edmund Sheehy, Jr., F. Sheehy, Cannon and Helena. Opinion

JUSTICE RICE delivered Court. (Beaver), 1 The plaintiff, brought Kimberli Beaver this action in the ¶ Court, County. First Judicial District Lewis and Clark The District Court, sitting jury, without a Findings entered ofFact and Conclusions Department Law in favor of defendant Montana of Natural (DNRC) Resources and relating Conservation on the issues to sexual and marital employment retaliation; status discrimination and in favor relating Beaver on the issues battery; to civil assault and and in (Ness) favor of defendant Michael J. Ness punitive on the issue of damages. Findings Law, From these ofFact and Conclusions of appeals. now affirm in part, part, We reverse in and remand. following Beaver raises the

¶2 issues for review: 1. Did the ¶3 District Court err when it single determined that the incident of sexual assault Ness did not constitute sexual harassment? 2. Did the

¶4 District Court err when it determined that DNRC was vicariously not liable for Ness’s actions sexually when he assaulted Beaver? 3. Did the

¶5 District Court err when it determined that did DNRC engage not in marital discrimination it assigned when Beaver to a six- eight-month month rather than an position? 4. Did the District Court err when it determined that DNRC did

not against filing retaliate Beaver for a claim of discrimination when assigned it her to a six-month rather than eight-month position? 5. Did the District Court err when it determined that Beaver was punitive damages entitled to from Ness? compensatory Were the damages awarded the District Court incomplete inadequate?

BACKGROUND Kimberli employed by Beaver was DNRC as seasonal wild lands firefighter from through the time of trial in October 2000. In case, the time at employed by issue this Ness was DNRC as supervisor unit fire supervisor. was Beaver’s Beaver was engaged unmarried but September the time of the incident on time, and until that pleasant working Ness Beaver had a relationship. Wednesday, 14, 1994, September On Ness asked Beaver to

accompany day Meagher County him the next him help complete agreed go, expected to to return

some fire-related contracts. Beaver but day spend night away to the unprepared to Helena that same and was Thursday morning, from home. The two of them left Helena on 15, 1994, Sulpher to September Springs and drove White Ness’s all working day, they completed all still had not pickup. After and, shortly p.m., possibility the contracts before 5:00 Ness mentioned night they spend completing that the and finish the contracts the next night to and she day. objected spending Beaver told Ness that' day day to to mother her care help needed be home next her business. Shortly p.m. evening, Ringling 7:00 that same Ness drove to after signed in White get Sulphur

to some contracts while Beaver remained had called Springs. p.m., Ness not returned 8:00 Beaver home When that still in parents Sulphur to inform her and fiancé she was White However, late. after to Springs and would be home Ness returned Sulphur he Springs, approximately p.m., 8:30 informed White they spending night Beaver that would be order to finish their morning. already he had the next Ness also informed Beaver that work single Motel had two single checked into a room at the Tenderfoot that and, that according testimony, to Beaver’s Ness told her it was beds only room available. complete that sheriffs officecould Although suggested Beaver work, suggestion, and the remaining disregarded contract Ness they Motel to the room that two drove to the Tenderfoot where went a short time so previously had reserved. Ness left the room for Ness returned, he phone Beaver some calls. When he could make and, available, if room had she informed Beaver another become pay her for it. Beaver decided to wanted own room she would have to as, to had not stay up point, in the with Ness this Ness acted room and inappropriately toward Beaver she trusted him. Thereafter, purchased to the Beaver and Ness drove store room and snacks and then returned to the motel

some beer and television, Neither sitting each on his or her own bed. person watched more of beer. drank than one-half bottle time, up to off watching got for some Beaver turn After television got to she nor undressed. Ness then lights go to bed. Neither Ness massage.” Beaver a “Chinese foot asked Beaver whether she wanted however, rubbing Ness, over to bed and started no. went Beaver’s said away again offer declined Ness’s pulled her foot. her foot foot, which massage. then reached for her other the foot Ness attempted to away. repeatedly immediately pulled After Ness feet, reach for in an up attempt get Beaver’s Beaver sat out of the up, rubbing situation. After she sat Ness then reached over and started attempted shoulders and to stick his hands underneath the back shirt, asking of her if she wanted her back rubbed. Beaver answered no, and told Ness that going go she was tired and was to bed. point, got At that up Ness and walked over to the television and flipping through

started momentarily got up the channels. Beaver bed, and, go from the as she preparing sleep, to lie down to Ness again approached around, her. put When Beaver turned Ness his arms around her and bed, lying forced her down on the top on of her so that she was unable to free attempted herself. Ness to kiss Beaver. She opposite side, turned her head to the repeatedly telling Ness that he needed get up go Ness, however, to his own kept pressing bed. against and, himself Beaver after repeatedly told him to stop go bed, and to to his own Ness asked Beaver if he could climax first and, although object she continued to and did reciprocate any activity, sexual Ness kept pressing against himself her until he Afterwards, achieved climax. he rolled over right Beaver, on the side of laid his head pillow on the and said going cry. However, he was to he trying continued to stick his hand thigh on Beaver’s inner as Beaver continued to tell him go that he needed to to his own bed. Ness got up thereafter and went to his own bed. Nothing during further occurred evening, and the next

morning, room, as both were about to leave the Ness came up behind her, Beaver and reached hugging around her and telling her that it felt good give hug her a aas friend. Ness and Beaver then left the motel office, and drove to the sheriffs determined they they where were complete any They unable to more of the arranged contracts. then complete sheriffs office to the contract work as Beaver has suggested previous afternoon and drove back to Helena. Upon returning Helena, immediately Beaver did not tell

anyone at DNRC what had happened. completed timesheet, She drove home to rest and later reported job to her other with the school selling district sporting time, tickets to events. At that Beaver shared district, with her at co-worker the school a seasonal employee also with DNRC, happened what had report with Ness and was advised to it. On Monday following incident, reported the incident to Meagher County Seidletz, Sheriff charges Rick and were thereafter against filed by jury Ness who was later convicted of the offense of sexual assault. That Monday, same Beaver filed a sexual harassment complaint reported Morris, with DNRC and Greg the incident to Ness’s Ahner, manager. area When told Mark supervisor,

direct who then happen,” and Ness, figured might “I this Ahner talked to Ness stated Willis, Gary deny incident. Ahner also contacted did not have DNRC, that she would not director for and told Beaver personnel complaint later filed a any contact with Ness. Beaver to have more Commission, alleging Rights and DNRC with the Human against Ness harassment. sexual Morris, Greg Beaver had no more reporting the incident to After pay. Ahner Ness, suspended Mark without

contact with who was and eventually Ness’s termination Ahner and recommended Willis DNRC, agreed. resigned Ness on Clinch, the Director at Arthur 31, 1994, suspension. while he was still on October counseling as a result psychological subsequently obtained 19 Beaver ¶ stress diagnosed post-traumatic assault and was of Ness’s trial, therapy expenses disorder, and, had incurred by the time of therapy expenses $3,095 to incur further expected the amount $1,000. in the amount of and Ahner 1995, Morris, Program Manager, Fire In the Area DNRC, positions the seasonal

made a decision to restructure by Beaver and positions held eliminating temporary the three seasonal Kroll, Butch co-workers, Tovey Ed her seasonal two of eight-month positions: two creating permanent three seasonal delegated the Morris position. and one six-month positions Grady, Rick positions fill these personnel recommendation of Ness. supervisor suspension after the Beaver’s new Tovey and to Ahner that Grady In recommended September that Beaver be eight-month positions and assigned the Kroll be Grady’s suggestion position. Ahner followed assigned to the six-month accordingly. assigned positions the and had worked Tovey, Kroll and Beaver reassignment, Prior to ¶22 positions: year in their seasonal amount of time each the same months and in the summer days core approximately 65-71 Thus, fire season. after the summer “discretionarjr” hours before and eight to nine worked for generally although employees the three days only the core year, months, March until November each from of at the discretion days were worked Additional guaranteed. were hours three of them more guaranteed all positions The new DNRC. out their annual longer having to cash ofno the additional benefit However, Beaver asked when each season. at the end of and sick leave her that Grady told position, given the six-month Grady why she was recently married she had been worry need to because she did not had a to support new husband her. complaint filed a in the District to Beaver thereafter Court recover discrimination, punitive damages

actual and for and marital sex discriminatory battery. retaliation and civil assault and In her complaint, challenge Tovey, did not of had Beaver the selection who twenty-six years firefighting experience, challenged over but Kroll’s eight-month selection for an position. Beaver claimed that the decision place to eight-month position her the six-month rather than the was arbitrary retaliatory filing her a complaint against DNRC Rights before the Human Commission. findings law, In its of fact and conclusions of the District Court

disagreed with Beaver and presented concluded the evidence trial did not assignment establish Beaver’s to the six-month position arbitrary or retaliatory. Tovey The Court concluded that and Kroll both had more firefighting experience total than Beaver and that the assign decision to position to six-month was based on her experience and not because complaint against she filed a DNRC. The District Court further concluded that Beaver to was unable

prevail on claim of on discrimination the basis of a hostile work environment prove because she failed to that the single incident of harassment, place away sexual which took from the normal workplace, was so pervasive severe or as to alter the employment conditions ofher and thus create working an abusive environment. The District Court concluded that protect DNRC took immediate action prevent further misconduct from Ness. The District Court thus ultimately concluded that Ness’s conduct did not create hostile working environment and that DNRC was liable under the Act, Rights Montana Human Code Fair Government Practices VII nor Title Civil Rights Act of 1964. findings From these fact appeals. and conclusions Beaver now

STANDARD OF REVIEW Court findings This reviews a district court’s fact determine they whether clearly gives regard are erroneous and due opportunity credibility judge trial court to of the witnesses. 52(a), M.R.Civ.P.; Rule Leasing, Boustead, 213, Ace Inc. v. MT ¶ (citation omitted). 285, 311 Mont. In 55 P.3d ¶ ¶ determining erroneous, clearly whether a are findings court’s of fact findings supported we first review the record to see if the are If Leasing, findings supported substantial evidence. Ace are ¶ 44 evidence, if the trial court has we determine substantial of If substantial evidence

misapprehended the effect the evidence. this misapprehended, and the effect has not been exists of evidence finding clearly that a is erroneous may Court nevertheless determine firm the definite and if a of the record leaves the Court with review Leasing, has committed. Ace ¶ conviction that a mistake been I ISSUE single err when it determined that the Did the District Court not constitute sexual incident sexual assault Ness did of harassment? Rights of 1964 makes it “an unlawful Title VII of the Civil Act against any ...

employment practice employer for an to discriminate terms, conditions, or compensation, to his respect individual race, color, employment, because of such individual’s privileges 2000e-2(a)(l). sex, 42 It is well religion, origin.” or U.S.C. § national that violate that there are two forms of sexual harassment established (1) quid pro against workplace discrimination: prohibition Title VII’s (2) harassment. Tomka v. The quo; and hostile work environment (2nd 1995), 1295, (citing 66 F.3d 1304-05 Cir. Corporation Seiler (1986), 64-65, 57, 106 S.Ct. Savings Bank v. Vinson 477 U.S. Meritor City v. San Mateo 2399, 2404, 58); also see Brooks L.Ed.2d (“Sexual (9th species is 2000), 229 harassment Cir. F.3d is, Harassing on account of sex gender employee an discrimination: sex, refusing paying or the same as to hire on account conceptually, work, duties for same imposing or more onerous less for the same pay”). prohibited Workplace constitutes “sexual sexual misconduct has effect of purpose “such conduct or

harassment” where or interfering performance work unreasonably with an individual’s creating intimidating, hostile, working or environment.... an offensive free right to in an environment VII affords work employees Title Meritor, intimidation, ridicule, discriminatory and insult.” from 58-59; CFR 65, 106 2404-05, at also see 29 at S.Ct. at 91 L.Ed.2d U.S. (citations omitted). omitted) 1604.11(a)(3) (internal To be quotations § sufficiently pervasive severe or actionable, sexual harassment “must be employment victim’s] and create [the ‘to alter the conditions ” Meritor, 477 U.S. at 106 S.Ct. working abusive environment.’ (citation omitted). 2405, 91 L.Ed.2d at 60 VII and pervasive to violate Title sufficiently severe or To be working environment claim, create a the misconduct must establish a words, objectively subjectively In other which both offensive. person must hostile environment be one a reasonable would find abusive, perceived and one that the as victim fact hostile (1993), Systems, 17, 21-22, 114 Harris v. abusive. Inc. 510 U.S. Forklift 367, 370, 126 295, 302; Faragher City S.Ct. L.Ed.2d v. Boca also see of (1998), 775, 787, 118 2275, 2283, 141 662, Raton U.S. S.Ct. L.Ed.2d (“[A]sexually objectionable objectively environment must both be ...”). subjectively Faragher offensive further instructed “to courts sufficiently determine whether an environment is by hostile or abusive ‘looking circumstances,’ including at all the of ‘frequency discriminatory conduct; severity, its it is physically whether threatening humiliating, utterance; or mere or a offensive and whether ” unreasonably it employee’s performance.’ interferes with an work Faragher, 787-88, 524 U.S. at 118 S.Ct. at 141 L.Ed.2d at 676. In case, Court, the instant citing Faragher, the District concluded that Ness’s sexual assault of did not create a hostile environment, work as his actions were pervasive not so severe or as to alter the employment conditions of Beaver’s did thus not create a hostile or working abusive Viewing totality environment. circumstances, the District Court stated: conduct, serious,

Michael incident; [Ness’s] while was an isolated there no prior evidence of by sexual offenses in the DNRC anyone Michael else. The DNRC took immediate action to protect prevent Kim and to further misconduct Michael. The away offense occurred from the employees’ workplace. normal The Court concludes that Michael’s conduct did not create a hostile working environment. DNRC therefore is not liable under Act, Rights Montana Human the Governmental Code Fair of Practices, and Title VII. Beaver contends that the District contrary Court’s conclusion is weight authority.

to the clear argues single She a “even incident of sexual sufficiently assault alters the conditions the victim’s employment clearly creates an abusive work environment Tomka; purposes liability,” of Title citing Virginia VII Brzonkala v. (4th Polytechnic 1997), 949; Institute Cir. 132 F.3d and Brock v. United (9th (further omitted). 1995), States Cir. F.3d 1421 citations specifically relies support on Brzonkala and Brock to her contention that the single incident of sexual assault here constituted conduct that sufficiently or pervasive was severe to alter the conditions a employment working and to create hostile and abusive environment. Brzonkala, Virginia Polytechnic In Institute, during a student at incident, raped college players a times two football single three in a room. sued the school under Title IX of the Education dorm She 1681-1688, Virginia alleging Amendments of 20 U.S.C. §§ discriminatory failing to take Tech was liable for its actions remedy a hostile environment. She adequate remedial action known Act Against also filed a claim under Title III of the Violence Women did a claim Although 42 U.S.C. 13981. Brzonkala not involve § VII, Circuit, for the Fourth consistent Appeals under Title Court of analysis, IX engaging applied with numerous other courts Title Title principles plaintiffs VII to define the contours of the hostile Brzonkala, environment claim under Title IX. See 132 F.3d at 958-59 cases). (collecting for fear of plaintiff Because the never returned school

retaliatory filing complaint against violence as result Virginia that, defendants, argued by choosing Tech not to return to campus, plaintiff exposed could not have been to a hostile environment, Brzonkala, element in a Title IX claim. See essential Tech, agreed Virginia 132 F.3d at 959. The district court alleged by never concluding plaintiff that the hostile environment occurred, plaintiffs dismissed the claim. and thereafter reversed, stating plaintiff “pled that the that The Fourth Circuit only pervasive violently gang raped, rape she and ‘is not was conduct of the most serious nature that harassment but also criminal sexual plainly sufficient to state a claim for hostile environment is ” (internal Brzonkala, quotation 132 F.3d at 959 marks harassment.’ omitted). continued, stating single that “even a Appeals The Court of sufficiently alters the conditions of the incident of sexual assault clearly an abusive work environment employment victim’s and creates (also Brzonkala, 132 at 959 liability.” for of Title VII F.3d purposes (7th 1990), F.2d Regents Cir. citing King v. Board of enough” can be to (acknowledging single [ofdiscrimination] that “a act VII)). “Thus, a claim under Title the district state hostile environment rapes that the themselves created a hostile recognize court failed to environment, of environment Virginia that Tech was aware this and Brzonkala, remedied it.” 132 F.3d at 959. properly and never However, holding plaintiff alleged had sufficient facts in that the Tech, against Virginia the a Title IX environment claim to state hostile rapes the themselves: beyond considered factors Appeals Court of Indeed, overturning [the university Provost’s rationale the year ... itself suspension for one school defendant’s] immediate complaints to of sexual hostile evidences an environment effectively remedy a refusal this harassment and to hostile acts, Given the environment. the seriousness of the harassment redress, inadequacy Virginia total Tech’s and Brzonkala’s including possible reasonable fear of unchecked retaliation violence, campus Brzonkala did not to return to the the next have year personally a experience continued hostile environment.

Brzonkala, 132 F.3d at 959-60. It also note the important is (a holding, by very Fourth Circuit’s its nature review of district granting Virginia dismiss), court’s Tech’s motion to did not resolve whether the in question prevail incident was indeed sufficient to on a (or VII) IX claim, Title Title but only allegations determined that the incident, in single conjunction Virginia actions, Tech’s were against sufficient to state an IX Virginia actionable Title claim Tech. Thus, unpersuasive we find Beaver’s reliance on to support Brzonkala single her contention that assault, incident of sexual in this instance, was sufficiently severe to alter the conditions of her employment and create working a defacto hostile and abusive environment. argues analogous Beaver also present Brzonkala to the

situation plaintiff because neither returned to hostile environment: plaintiff in school; Brzonkala because she did return Beaver, because when she longer returned DNRC she no exposed an argument, however, to Ness. Such improperly removes the employer or equation. institution from the The in Appeals Court Brzonkala, case, as well as the present District Court in the in considering existed, whether a hostile environment reviewed the totality circumstances, including remedial measures employer Tech, Virginia institution. While Beaver notes that as well as case, similarly Ness in the instant they both reasoned that should no liability plaintiff bear since neither returned to or continued to experience environment, similarity goes hostile no further. plaintiff Virginia because, light Brzonkala did not return to Tech response of the school’s deficient sexual assault further response environment, deficient ato known hostile institutional the Contraiy Brzonkala, environment remained hostile. able was to return to a non-hostile environment because of remedial actions - taken DNRC workplace. the removal of Ness from the factually present that Brock case Beaver contends similar to the and that the Appeals Court of there held that such facts were sufficient Brock, a discrimination. plaintiff to establish claim ofsexual In was the employed by and, during overnight outing, she the Forest Service an

48 one her accommodations with sleeping

was forced to share contact, including subjected physical her to supervisors who unwanted Title brought a sexual discrimination claim under rape. plaintiff the against employer a claim her under Federal negligence VII and (FTCA). 1346(b), Act, 2671 The federal seq. Claim 28 U.S.C. et § Tort § claim, concluding FTCA that Title VII court dismissed the district her provided remedy negligence for both her claim and the exclusive Brock, at claim. See 64 F.3d 1422. sexual discrimination FTCA reviewing plaintiff’s dismissal of the In the district court’s “[ajlthough in claim, Appeals Brock stated that the Court of McKinney’s Brock is sufficient to rape and sexual assault of establish discrimination, more a that conduct also constitutes claim of sexual Brock, However, F.3d as than sexual discrimination.” 64 at dismiss, Court Appeals on a motion to case was before the Court successfully stated an actionable claim merely plaintiff held that the separately well for sexual discrimination under Title VII as as FTCA, “highly nature personal claim under the because the actionable meaning of “beyond discrimination.” of the harm inflicted” Brock, Appeals did not conclude that 64 F.3d at 1423-24. The Court of work plaintiff’s complaint facts in constituted hostile alleged law, under VII a matter of harassment actionable Title as environment analysis. it such provide did direction for nor (1993), U.S. Sys., next v. Inc. cites Harris Forklift v. 17, 126 L.Ed.2d and Townsend Indiana S.Ct. (7th University 1992), that in cases F.2d to demonstrate Cir. physical harassment, there is no need for where there is direct job plaintiff any physical kind of detriment because to show other working condition sufficient harassment itself constitutes altered under hostile work environment harassment actionable constitute However, so VII. neither case holds. Title the incorrect Harris, applied In the United District Court States created determining plaintiffs employer whether the legal standard environment, claim concluding plaintiffs that the working an abusive not Title VII the environment was was not actionable under because well-being plaintiffs seriously psychological so severe as to affect 19-20, Harris, injury. 510 U.S. at cause to suffer to otherwise Supreme at The United States 369-70, 126 S.Ct. L.Ed.2d 300-01. well- reversed, holding that, plaintiffs the effect on the while Court working considering plaintiff’s being is relevant whether hostile, legal standard is the correct was abusive or environment psychological well- ‘seriously plaintiff’s affected the conduct “whether

49 ” being5 “may or led ‘suffer as such standard injury/ needlessly her to a harm, the psychological focus factfinder’s attention on concrete 22, Title does 510 114 require.” Harris, element VII U.S. at S.Ct. 371, 126 Rather, at at Supreme L.Ed.2d 302. the Court concluded legal applied the correct standard to be whether an determine totality environment is “hostile” or “abusive” is view of the the circumstances. may frequency discriminatory conduct;

These include the severity; its it physically threatening humiliating, whether is or or utterance; a mere offensive unreasonably and whether it an employee’s performance. interferes with work effect on The the employee’s is, psychological well-being course, of relevant determining actually whether the found plaintiff the environment harm, abusive. while psychological any But like other relevant factor, account, may single be taken into no required. factor is Harris, at U.S. at S.Ct. L.Ed.2d at 302-03. prior Townsend involved a suit under Title VII to its amendment

by Townsend, Rights the Civil Act of In plaintiff, cleaning the employed Indianapolis woman the campus University- Indiana University, Purdue sued University complaints the after her of being sexually ignored twice by supervisors assaulted were and she began exhibiting symptoms thereafter post-traumatic stress disorder that caused her to take an period unpaid extended medical leave. Townsend, voluntarily 995 F.2d at 692. Because took unpaid she being demoted, medical than leave rather fired or the United States Court, VII, District applying pre-amended granted summary Title judgment University, holding remedy favor the that no existed pre-amended plaintiff under Title where a been VII had not fired or demoted. Posner, Judge writing Appeals for the Court of the Seventh

Circuit, Judge that, agreed reversed. under pre-amended Posner VII, plaintiff damages merely Title if seeking for the psychological assaults, distress caused “she would out of luck be provides remedy. because the unamended Title VII... no such But if turn psychological assaults caused severe distress that in caused wages, her to lose work and as a entitled recover result she is those Townsend, ....” wages 995 F.2d at 693. not, Appeals argued by Beaver, Court did as hold that

psychological effects of the sexual assault themselves sufficient were that, claim Rather, to sustain a under Title VII. the Court held under VII, merely remedy the unamended Title had no for the plaintiff distress, rather, only pay if could recover her back psychological but distress, turn, her to psychological caused lose work and the severe Townsend, result, wages. 995 F.2d at 692-93. as Harris, the legal As noted above in our discussion of correct “hostile” determination of whether an environment is standard for circumstances, totality under Title VII is to review the ofthe “abusive” among many. Harris, well-being one factor psychological of which 371, 126 L.Ed.2d at 302-03. 510 U.S. at 114 S.Ct. at acknowledge authority supports that the offered Beaver We alter single may that a incident of sexual assault the principle sufficiently an employment ofthe to create abusive conditions victim’s However, authority not environment. that same does direct working Rather, clearly provides it prevail that must as a matter oflaw. simple that the inquiry that is broader than determination Court, correctly by has occurred. As the District applied incident of the facts and appropriate requires standard review all surrounding the of sexual assault of Beaver circumstances incident review, the District Court concluded that work Ness. From sufficiently pervasive at was severe or alter environment DNRC not That conclusion the conditions of Beaver’s work enviornment. testimony: consistent with Beaver’s own assault, Q: sexual which was period So for the after the employment conditions of September your how was changed ‘95? guess I I they they change.

A: .... didn’t changed? guess How were change. there was no noted, sexually objectionable previously in order for As

¶48 VII, Title it be under must both environment be actionable Harris, 21-22, U.S. objectively subjectively offensive. at upon 126 L.Ed.2d 302. Based our review of Beaver’s S.Ct. at correctly the work testimony, the District Court concluded that Beaver, subjectively objectionable to at DNRC was not environment thus, type to be the of hostile or cannot have been considered under Title VIL abusive environment actionable workplace objective of the offensiveness Regarding ¶49 away environment, the incident occurred District Court found that that, place, upon receiving notice employees’ from normal work and to incident, protect took immediate action DNRC Ness at Ness, that Beaver never saw further misconduct prevent other evidence of sexual there was no again, work misconduct. foregoing, Based on the findings we conclude that the clearly

District Court are not erroneous. Neither do we find error in that, the District Court’s circumstances, conclusion of law under the single incident of sexual assault did not create a hostile and working abusive environment actionable under Title VII of the Civil Rights Act of 1964.

ISSUE Did the District Court err when it determined thatDNRC was not vicariously liable Ness’s actions when sexually he assaulted Beaver? As we have determined that Beaver subjected was not to an abusive or hostile environment VII, actionable under Title we need not reach the issue of whether DNRC is vicariously liable for Ness’s conduct.

ISSUE 3 Did the District Court err when it determined thatDNRC did not engage in marital discrimination it assigned when Beaver to a six- month rather eight-month than an position? Beaver contends that Grady’s statement-that she did not need to

worry about receiving eight-month position because she had recently been married and had a new husband to support her-constituted marital or, status discrimination more specifically, “sex-plus discrimination,”1 by DNRC in its employment decision, and thus contends that the District Court erred in concluding otherwise. argues that stereotype-that this married women have their rely husbands to on for economic support and therefore are in less need employment than precisely men-is type stereotyping found to be discriminatory by the United States Vuyanich District Court in v. (N.D. Republic 1976), National Bank Tex. F.Supp. 1083, 409 (10th Tomsic v. State Farm Mut. 1996), Auto. Ins. Co. Cir. 85 F.3d However, 1472. neither case mandates the conclusion Grady’s that statement, itself, in and of constitutes marital as a discrimination 1 theory “sex-plus” recognized discrimination has been as an actionable theory Rights under Title by person being VII of the Civil Act and is characterized a subjected sex stated disparate only to considered in person’s sex, treatment person’s based not on the but on the conjunction characteristic, here, being with a second married. As (S.D.N.Y. NBC, 1999), 305, 310: the court in F.Supp.2d Martinez v. Inc. 49 “It impermissible is less to show that he or who is to treat men characterized some additional characteristic more or favorably than plaintiff women with the same added characteristic.” A must be able favorably opposite she was treated less than a member of the sex similarly Martinez, F.Supp.2d situated. 49 at 310.

52

matter law. Vuyanich, the United States District Court for Northern In allegations to of Texas denied the defendant’s motion strike District plaintiffs complaint sexual discrimination. concerning from the had Vuyanich, plaintiff at 1090. The first filed written F.Supp. 409 Equal Employment charges of racial discrimination with the (EEOC) upon supervisor’s her Opportunity Commission based comment, termination, joba just her she did not need prior to Vuyanich, F.Supp. her at 1089. because husband was Caucasian. that the subsequently The EEOC found reasonable cause to believe plaintiff right-to-sue VII defendant violated Title and issued with Vuyanich, F.Supp. letter. at 1085. to However, denying Vuyanich’s the defendant’s motion strike merely claim, the federal district court held that

sexual discrimination discrimination to plaintiff was entitled include her claims sexual court, that the EEOC notwithstanding suit in federal fact plaintiffs recognize implications primary to the sexual failed allegations. Vuyanich, F.Supp. at 1089. It did not hold factual Vuyanich’s as a matter allegations constituted sexual discrimination of law. represents a claims that Tomsic is a case that also Tomsic, sex-plus In constituting

scenario marital discrimination. Miller, requesting to plaintiffs’ supervisor, prior Norman that she plaintiffs, plaintiff female stated to one resignations of two her husband industry not in the insurance because would succeed lack money and that she would therefore incentive. made too much Tomsic, second During plaintiff, 85 F.3d at 1474. an interview with the might problems arise in expressed concern her that marital Miller than her years likely earning she be more a few because would Tomsic, that his F.3d at Miller later testified husband. making try plaintiff to convince the purpose in this statement was voluntarily. days later, a was made to fire both resign Three decision immediately. Prior to plaintiffs, upon but the decision was acted resign voluntarily. decision, the were asked acting plaintiffs on this eventually brought gender a Title VII resigned plaintiffs Both against suit Farm. discrimination State summary judgment in granted Court The United States District plaintiffs had failed Farm, concluding, in that the part, of State favor anything to do the decision statements had to show that Miller’s that, most, The district court concluded plaintiffs. to fire the discriminatory be inferred intent could “plaintiffs argue could that statements, from the but this would not be direct evidence of Tomsic, discrimination.” 85 F.3d at 1475-76. The district court also plaintiffs concluded that had failed to offer sufficient evidence that the proffered discharging plaintiffs defendant’s reasons for were a pretext discriminatory discharge. Tomsic, mere 85 F.3d at 1476. quotes the Tomsic court wherein court stated that Miller, by comments, displayed “stereotyped his views of women and marriage actually may which he held and which have affected his relationship Tomsic, plaintiffs ways.” with in other 85 F.3d at 1478. However, question intentionally this is a that the Tomsic court left quotation, context, unresolved. The in is as follows: judge may The district conclusion, have been correct in bis or it may that displaying stereotyped be Miller was views women marriage and of actually may which he held and which have affected his relationship plaintiffs ways. other question capable is not one summary judgment. resolution on added). Tomsic, 85 F.3d at 1478 (emphasis The Court Appeals thus remanded the case to the district court for resolution of this and other remaining jury. factual issues a represent Tomsic does not an example of constituting facts sex-plus discrimination as a matter of law. Lastly, Beaver attacks the holding by asserting District Court’s Grady’s

that testimony trial selecting about his reasons for Kroll for an eight-month position lacked credibility. Specifically, Beaver contends that, Grady whereas had testified in deposition his from a document prepared Robert February, 1995, Vlahovich in regarding the comparative qualifications Beaver, Tovey Kroll, Grady at trial instead testified post-discovery from a prepared document two weeks prior argues to trial. Beaver this is Grady’s evidence that testimony that, lacked credibility, and reasons given by where employer for its decision worthy are not of credence or lack otherwise credibility, pursuant Prods., Plumbing to Reeves v. Sanderson Inc. (2000), 133, 120 2097, 147 105, U.S. S.Ct. L.Ed.2d testimony such given evidence that the reasons pretext are a for an unlawful discriminatory Thus, argues that, reason. under the mixed- analysis motive County Dep’t, Laudert v.Richland 2000 MT Sheriffs Grady’s testimony Mont. 7 P.3d must taken as be evidence that an played motivating unlawful consideration role in employment DNRC’s support finding decision sufficient discriminated unlawfully against. Beaver was Reeves, Supreme In the United States Court proper clarified the (as in McDonnell test defined Douglas McDonnell application of the 1817, 36 792, 93 L.Ed.2d (1973), 411 U.S. S.Ct. Douglas Corp. v. Green 668) of “arranging presentation the as a means of functions which production of the burden of the allocation evidence” and establishes involving in cases presentation proof’ the the “order of and Reeves, 142, 120 S.Ct. at 530 U.S. at under Title VII. discrimination Bank & Trust 116; v. Fort Worth 2106, 147 L.Ed.2d at also see Watson 827, 2777, 2784, 101 L.Ed.2d 839. 977, 986, S.Ct. (1988), U.S. 108 487 test, Douglas the of the McDonnell application of the part As terminating explanation for the defendant’s offered determination that that the merely is a consideration unworthy of credence plaintiff is pretext is a for explanation may utilize to factfinder infer 2106, 147 143, 120 L.Ed.2d Reeves, at S.Ct. at 530 U.S. discrimination. proffered defendant’s may find the That a trial court at 117. therefore, evidence is, not conclusive unworthy ofcredence explanation discriminatory an unlawful given pretext are a for that the reasons to be drawn and the inferences veracity of the evidence reason. court. The discretion of the trial left to the judgments therefrom are weight the effect and discretion to determine court has broad district discretion, the trial showing a of an abuse evidence. Absent Metropolitan v. not overturned. Vincelette court’s determination will be 275, 261, ¶12, P.2d 259, ¶12, 291 Mont. 968 Co., MT Ins. 1998 Life (citation Maner, v. Constr. & Tree Serv. omitted); Spooner also see (“In trials non-jury 268, 35, 66 P.3d 43, 35, 314 Mont. ¶ ¶ MT ¶ given to weight of the evidence credibility witnesses and the trial, is a matter left to testimony, presented the evidence their court”). the district the discretion of analysis mixed-motive that the disagree with Beaver We also case. This Court present in the appropriate is

adopted in Laudert Supreme States the United analysis from the mixed-motive adopted (1989), 490 U.S. Hopkins v. decision of Price Waterhouse Court is approach Price Waterhouse 268. The 104 L.Ed.2d 109 S.Ct. evidence presents direct plaintiff where appropriate the reason for agree on parties do and where the discrimination Laudert, this Court noted decision. As challenged employment direct evidence. do not constitute by nondecisionmakers statements indicative Beaver to be alleged by Laudert, Here, the statement ¶ it by Grady, while was made action was discriminatory employment Thus, Price decision. employment final made the Ahner who instant case. in the inappropriate approach Waterhouse meet the Beaver could that, assuming arguendo, responds DNRC discrimination establishing prima initial burden of facie case of Douglas, under presented overwhelming McDonnell DNRC evidence firefighting training experience Beaver, that Kroll had more than including firefighter, firefighter as a volunteer land wild equipment operator. DNRC also notes that presented no evidence to refute Kroll’s experience training substantial above and beyond that of Beaver. Upon production evidence, of this the burden shifted back prove by preponderance

Beaver to of the evidence that the reasons giving DNRC offered for eight-month position Kroll the instead of reasons, Beaver were not pretext DNRC’s true but were a Reeves, 143, 120 2106, 147 discrimination. atU.S. S.Ct. at L.Ed.2d Beaver, however, only at 117. offered the “after the fact” statement by Grady Beaver, made having married, recently been did not need eight-month position because she now had her husband Moreover, take care that, of her. Ahner testified based upon employees’ respective experience, he surprised would have been if Grady had any recommendation, made other and “would have requested [Grady] to visit with me as to how he had made an evaluation up that would come with a different selection than what he

in fact did.” The District Court Grady’s

¶66 described statement to Beaver-that she did eight-month not need the position because she was now married- as “inappropriate sexist,” and but found that the decision assign position Beaver to six-month was not made because of her marital that, status. The District Court being concluded rather than discrimination, Grady’s indicative ofmarital attempt statement was an pacify “to by [Beaver] after the fact reminding her that she had less to Further, lose than her apart Grady’s two co-workers.” from “after the statement, fact” there is testimony Grady no in the record that Ahner ever considered Beaver’s marital status in the employment decision-making process. agree by We with the District Court that such a statement

supervisor highly inappropriate. However, evidence, based on the clearly District Court did not finding err in that the employment decision made Ahner did not involve or constitute marital or sex- plus hold, therefore, discrimination. We that the District Court did not concluding err in that against DNRC did not discriminate Beaver on the basis of accordingly. her marital status. Its decision is affirmed

ISSUE err it that DNRC did not Did District Court when determined when against filing a claim discrimination it retaliate Beaver for assigned eight-month position? than her to a six-month rather assignment her to the alleged the District Court that firefighting position eight-month six-month instead of one of filing her positions against is evidence of retaliation her against Rights complaint discrimination DNRC with the Human disagreed, concluding The District Court that Ahner’s Commission. place position was made Beaver in the six-month not decision complaint. contends that the evidence because of her otherwise, that, restructuring, arguing job before the demonstrates Beaver, all worked the same amount of time each Tovey Kroll she her year, only complaint and that it was after filed with Rights her hours from nine Human Commission that DNRC reduced year Tovey to six months while Kroll continued to per months eight work months. and the fact points Grady’s friendship Beaver also with Ness Grady something happened

that knew that had between Beaver that, a of that Sulphur Springs Ness in White and also knew as result allege, does event, longer Ness no worked for DNRC. Beaver however, Grady that indeed knowledge had actual Beaver had and, fact, Commission, complaint Rights filed a with the Human However, Beaver maintains that the evidence indicates otherwise. firefighting regarding position received which ultimate decision who knowledge Ahner, Ahner did have actual rested with and notes that Rights the Human Commission. complaint that Beaver had filed under Title VII plaintiff bringing A an action for retaliation “by showing prima first facie case retaliation must establish subjected activity, that she was thereafter engaged protected she in a and that there was a employment employer, action adverse Metropolitan Hosps., Inc. Wrighten link the two.” v. causal between (9th (citation omitted). 1346, 1354 argues Beaver 1984), 726 F.2d Cir. filing by her initial that first elements were satisfied virtue the two Commission, thereby engaging in Rights complaint with the Human by DNRC thereafter protected activity, demonstrating and that co-workers, thereby differently than her position her restructured by suffering employment decision DNRC. adverse element, was a argues Wrighten that there that the third She activity employment protected link and adverse causal between filing decision, connection between the by temporal is evidenced complaint assignment position along her and her to the six-month with Grady, although knowing the fact that that Beaver had filed Commission, complaint Rights with the Human that aware something happened had in Sulphur Springs White and that the result longer of that event that Ness no worked at DNRC. Beaver also friends, points Grady Grady out that and Ness were that sat next to during trial, and, further, Ahner, person Ness who made regarding the final decision Tovey, employment, Kroll and Beaver’s did know that Beaver had filed a complaint Rights with the Human and, fact, person prepared response Commission was the who on behalf DNRC. The District third Court concluded that neither the second nor satisfied, finding that,

element was rather than suffering an adverse decision, employment position, yet received a better less Tovey, favorable than either Kroll or both of whom had more firefighting experience than The Beaver. District Court concluded that assign the decision to position Beaver to a six-month was based on the employees’ firefighting experience, relative and not because she had complaint against filed a DNRC. findings District Court’s are supported substantial Court,

evidence. As noted the District the evidence indicated that employees three had different training in the various areas pertinent job. training to the Beaver had more than Kroll as a strike leader, team suppression fire and tactics advanced fire behavior and helicopter operations, training but that required eight- was not for the position. month began Both Kroll and Beaver their employment at DNRC in beginning entry position having in an level and previous firefighting no experience, having previously and Kroll been fires, trained for wildland having been a volunteer for the Baxendale Department working fighting Fire fires in the 1980's. supports finding The evidence also the District Court’s receiving assignment

Beaver was better off after to the six-month position assignment, than before which the Court noted in concluding job assignment retaliatory. that the was not As a seasonal firefighter, guaranteed only sixty-five Beaver was between seventy-one days year, being of work each all additional time discretionary, depending funding, on available the fire season However, Beaver, Tovey other factors. and Kroll had each worked both early only and late in the fire season at the discretion of It is DNRC. discretionary in these hours that Beaver claims a cut in work hours. guaranteed approximately Beaver’s hours from core increased year year assigned to per per hours to 1056 hours when was Further, testimony admitted the in her position. six-month Ahner, filing Grady upset Morris was with her for a that neither nor Rights the complaint with Human Commission. receipt position of a better than emphasize We Beaver’s not, itself, formerly possibility the that she

she held does of eliminate newly may against process assigning in the of the have been retaliated However, of all created, improved positions. upon based consideration presented, supported the we hold that substantial evidence evidence legitimate, non- the District Court’s conclusion that the DNRC had retaliatory assigning position reasons for Beaver to the six-month is eight-month position. instead of the Its decision affirmed accordingly.

ISSUE 5 Did the Court err when it determined that Beaver not District damages punitive entitled to Ness? from fact, the of the District Court found that Ness was not As trier for or actual malice and was thus liable guilty of actual fraud (1993). 27-1-220, Said section punitive damages pursuant to MCA § provides in part: (1) as damages-when Except

Punitive allowed. otherwise statute, may award, judge jury or in expressly provided a damages for the sake damages, punitive addition to compensatory defendant. purpose punishing and for the of example of 27-1-221, (1993), part: provides MCA Section (1) section, provisions 27-1-220 and this Subject of damages may awarded punitive be when reasonable fraud actual malice. guilty has found of actual or defendant been (2) knowledge he has of guilty A is of actual malice if defendant high intentionally disregards that create a facts or facts injury plaintiff and: probability (a) or intentional deliberately proceeds to act conscious or disregard high probability injury plaintiff; to the (b) high to the deliberately to act with indifference proceeds plaintiff. probability injury (3) fraud if he: guilty A of actual defendant (a) falsity; or representation knowledge of its makes a (b) depriving purpose a material fact with conceals injury. causing legal rights or otherwise property plaintiff (4) right rely plaintiff has a only exists when the Actual fraud injury a and suffers as of the defendant upon representation reliance .... result of that

(5) damages proved must be punitive All elements of claim convincing evidence Clear and convincing evidence. by clear serious or substantial doubt in which there is no means evidence drawn from the evidence. of the conclusions about the correctness than but less preponderance of the evidence It is more than beyond doubt. reasonable

(6) by the trier damages must be determined Liability punitive for fact, judge jury. whether or findings of fact to determine whether We review a district court’s 132, 15, Deisz, MT findings clearly erroneous. Holtz v. ¶ its are (citation omitted). This Court 316 Mont. 68 P.3d ¶ ¶ finder of fact. Onstad v. lightly does not overturn the verdict of a 259, 56, 9 Payless Shoesource, 230, 56, 301 2000 MT Mont. P.3d ¶ ¶ 38. clearly they if are not findings 56. A district court’s are erroneous ¶ evidence, if the trial court supported by substantial credible evidence, effect or if a of the record misapprehended the review this firm conviction that a mistake leaves Court with definite and (citation omitted). Holtz, further has been committed. We have ¶ stated that the test of substantial credible evidence allows for reversal only probative support if there is an facts to the verdict. absence Onstad, ¶ finding that Beaver contends that the District Court erred in fraud actual malice.

Ness’s actions did not constitute either actual to control the District Court concluded that Ness “was unable While resulting constituting sexual assault of impulses,” his in his actions her, that demonstrates that Ness’s Beaver contends the evidence just spur-of-the-moment development. a actions were Upon record, agree of the with Beaver that the record review we place for several hours to clearly demonstrates that Ness worked his she be vulnerable to sexual position Beaver into a where would stay by Beaver, overnight decision to advances. As noted Ness’s was despite the fact that spite objections made in of Beaver’s continued to firefighters routinely Sulphur Springs home from White drove that Ness day. Helena at the end of the work Beaver further notes single consulting her and first told checked into a motel room without only checking only it room It was after her that was available. there another room told Beaver that was to the room Ness pay However, that she would have to Ness also told Beaver available. money likely not be and would any for additional room with own reimbursed Additionally, although DNRC. represented Ness Beaver that their spending night reason for Sulphur White Springs to complete morning, they was the contracts the next did not attempt complete contracts, rather, unfinished but left them sheriffs officeto the sheriff complete have them. facts, Under these this Court is left with the definite and firm misapprehended conviction that the District Court the effect of the evidence and that a committed findings mistake in its offact was when it found that this “inability was matter of Ness’s to control his impulses.” question There is representation no that Ness made a false staying overnight work-related, Beaver that their reason for further, knowledge that Ness had falsity of his statement making Moreover, when it. as Ness supervisor, was Beaver’s right rely had a verity on the of Ness’s statement justification staying overnight any was work-related and not for other reason. The evidence unquestionably demonstrates that work- related clearly matters were not the reason that Ness rented the motel Rather, room. the evidence demonstrates planning deliberate on the part put of Ness to Beaver in place sexually where he could assault her. We hold that such facts constitute actual fraud under 27-1- § 221(3) (4), MCA, (1993), and thus conclude that the District Court erred when it guilty determined that Ness was not of actual fraud. “may award, A factfinder compensatory in addition to damages, punitive damages example for the sake of and for the purpose punishing 27-1-220, Further, a defendant.” Section MCA. 27-1-221, MCA,provides damages may that “reasonable punitive § be awarded when a defendant has guilty been found of actual fraud or Having actual malice.” reversed the by concluding District Court statute, Ness’s conduct constituted actual fraud under the we remand for the factfinder to determine punitive damages whether award of so, is appropriate, and if in what amount.

ISSUE 6 the compensatory damages by Were awarded the District Court incomplete inadequate? grant compensatory damages We review District Court’s to Kiely

determine whether the district court its abused discretion. 241, 102, 312 52, City Lodge, Constr. L.L.C. v. Red 2002 MT Mont. ¶ (citation omitted). 102, 57 836, P.3d 102 The amount to awarded ¶ be ¶ fact, properly left to the finder of and this Court will substitute judgment its judgment product passion unless we find the to be the

61 27, 43, 118, 43, 310 Harris, 2002 MT Mont. Albinger ¶ v. prejudice. ¶ omitted). (citations cases, must 711, damages In all be 43 48 P.3d ¶ reasonable, necessity in the sound and the amount of award rests of 102; v. American Bank Kiely, trier of fact. Bottrell discretion of the ¶ Yard, 22-23, 694, 707; (1989), 1, P.2d Vinion v. Wood 237 Mont. 773 34; 27-1-302, (1988), 110, 113-14, P.2d MCA. Inc. 232 Mont. 755 § “Only grossly proportion so out of to the when the amount awarded is court intervene.” injury appellate as to shock the conscience will an 102; Onstad, Kiely, ¶ ¶ damages in the compensatory The District Court awarded Beaver date, $9,095: $3,095 expenses therapy for incurred in to

amount of $1,000 expend therapy, in future expenses expected for Beaver $5,000 from the sexual assault. for the emotional distress suffered argues incomplete inadequate Beaver that this amount is because erroneously found that Beaver had not been the District Court That subjected to sex and marital discrimination and retaliation. argument negated by However, has been our earlier discussion. presented testimony

further contends that she that she uncontroverted years preceding suffers and suffered for the post- had five trial from disorder, award, compared traumatic stress and that her when cases, awards from similar acts in other demonstrates an abuse of discretion the District Court. points plaintiffs higher to three cases received where

compensatory damage awards: the district court case of Todd v. Ortho (D. Biotech, Inc., 1996), Minn. and the Montana F.Supp. two (1993), Supreme Court cases of Onstad and v. Brookshire Vainio Todd, $90,000 Mont. 852 P.2d 596. In the district court awarded distress, plaintiff pain, enjoyment to the emotional and loss of Todd, findings F.Supp. life. at 730. A review of the district court’s egregious presented of fact in Todd reveal facts dissimilar to those case, including present repeated District Court contact with the defendant after the sexual assault because of lack of action on the part employer, employer’s timely investigation of her lack of into charges of sexual assault the defendant while instead conducting background plaintiff a criminal check of the victim while information concealing failing complete from her and a criminal Todd, at 728. background F.Supp. check on the accused defendant. treatment, plaintiff required psychological also extensive medication, eventually any to return to work including and was unable longer. terrifying nightmares, She also suffered from “vivid difficulties, including anxiety, phobias psychological and other extreme meaningful stress disorder. She is to maintain post-traumatic unable travel, relationships, gainful employment.” or at personal new work Todd, F.Supp. at 729. noted, previously As Beaver did not have further contact with any incident; did reported

Ness at work at time after she DNRC Beaver, inappropriate against conducting not take action such as an check, background although Beaver’s unauthorized criminal early post-traumatic felt that Beaver had on suffered with therapist disorder, therapist stress her also testified that she believed Beaver’s symptoms by had the time of trial and also testified that her subsided “prognosis good therapist once this issue is resolved for her.” Her only complete her current further testified that Beaver need to unlikely therapy treatment and need further that Beaver would assault experienced treatment related the sexual unless she another Further, plaintiff trauma in her life that was similar. unlike the in Todd, only required no medication and was not able to return work, any the incident. but did not miss work because of higher in a much in plaintiff While the Todd received award damages Beaver, sufficiently compensatory than the facts were also legitimately different that the difference in award amounts was within the discretion of the factfinder and such difference is not one that “shocks the conscience.” Vainio, $20,000 given In the District Court affirmed an award of Commission. Rights the Human We determined that plaintiff erroneous, clearly affirmation as the

the District Court’s was plaintiff District Court found that the defendant’s conduct toward included, buttocks, among things, “brushing body against other his her skirt, breasts, up grabbing requesting his hand her putting Vainio, 280-81, with him.” 258 Mont. at plaintiff] [the to have sex the amount in Again, P.2d at 601. the difference between awarded sufficiently different and the amount awarded to Beaver is not Vainio to shock the conscience. Onstad, where Finally, points to this Court’s decision in verdict, defendant, Payless jury, special in a found the

ShoreSource, amount of compensatory damages liable for failing to take $500,000. jury Payless negligent The found that was followingthree incidents employees’safety previous for its precautions locations, an incident at the same store where the Payless including had and where the same defendant plaintiff sexually was assaulted Onstad, 12-13. exposed employee. himself to a female previously ¶¶ assaulted employee Payless, physically plaintiff, into the back storeroom for plaintiff the defendant. When the went her and forced his safety help, and to call for the defendant followed eventually grabbed way into the storeroom with her. The defendant behind, held his hand her mouth and demanded to have her from over Onstad, her, refused. 8-9. threatening sex with to kill her if she ¶¶ struggling, the defendant plaintiff resisting When the continued and masturbating until he knocked her to the floor and stood over her truly thought ejaculated plaintiff on her. The later testified that she Onstad, going rape the defendant was and then kill her. 51. We ¶ discussed the trauma which Onstad sustained: substantial attack, following

Onstad’s mother testified that Onstad and, college, parents, withdrew from returned to live with her for months, very slept the next several “was withdrawn. She lot. night, during day just didn’t she continued sleep She but sleeping a lot. She went nowhere. She didn’t visit with friends. totally just She was scared and not herself. kind She was of totally addition, withdrawn.” In Dr. Martin testified that as a attack, safety, security, result of the Onstad’s “sense of her sens violated, really extremely powerless, of herself has been she felt and up really embarrassing humiliating also ended her and her. Ashamed. It’s affected whole sense of self-esteem and self- confidence.”

Onstad, 51. ¶ jury This Court held that the properly instructed and that the plaintiff any was “entitled to compensation pain reasonable for suffering experienced reasonably probably experience she and would future, by and that the law does not set a definite standard compensation pain suffering.” which to calculate for mental Onstad, damages 52. compensatory We held that the “amount of ¶ by jury awarded grossly proportion [the is not so out of plaintiffs] posttraumatic injury stress as to shock conscience.” Onstad, ¶ compensatory damages the amount of While the award appears relatively comparison

in the instant case small in to the be Onstad, plaintiffs compensatory damages the amount of awarded remains, ultimately dependent on the each case and facts of within factfinder. necessity, the discretion Given that the law compensation does not set a definite standard which to calculate rather, pain suffering, mental but that such calculation remains factfinder, province judgment that is the within absent its product passion prejudice, this Court will not substitute judgment for a decision the sound discretion of the factfinder. within Further, compensatory damages conclude that the in the we award grossly proportion injury instant case is not so out of to Beaver’s as to compensatory shock the conscience. The District Court’s award of damages accordingly. is affirmed and remanded. part, part, Affirmed in reversed in COTTER, LEAPHART, GRAY,

CHIEF JUSTICE JUSTICES REGNIER and NELSON concur. concurring.

JUSTICE WARNER I agree majority opinion. I in the result reached do not agree necessarily findings that the District Court made a mistake in its “inability of fact it found this was a matter of to control his when Ness’ impulses.” judge Decisions of fact are for the trial when the case is Farms, Molitor, 153, 9, v. 2003 MT tried to the Court. See Han Inc. ¶ 249, 9, 1238, 316 Mont. 70 P.3d 9. ¶ ¶ The matters of fact: District Court found as

¶97 sexually

17. The finds that Michael assaulted Kim without Court her consent. engage The finds that Michael did not in actual fraud Court

or actual malice. The facts indicate that he was attracted to Kim impulses. to control his His motive does not rise was unable malice. to the level of actual The District Court concluded as a matter of law that because

¶98 engage that did not in actual Court found as trier of fact Ness damages. punitive fraud or actual malice he was not liable for might support finding the record that Ness worked for While ¶99 she would place position several hours to Beaver in a where be view, assault, must, my accept the trial vulnerable to this Court judge’s finding that such was not the case. judge the trial determine to believe up It was to whether

¶100 overnight. continually objected staying Beaver when she said she before the Whether there was indeed another room available ¶101 motel, telling already checked into the or whether Ness was pair had afterwards, this it available is not for the truth when he said became she she would have Court to decide. The same is true whether believed if she one. pay for her own room wanted overnight stay he said the Whether Ness was untruthful when determine. From the cold work related is not for this Court to was say unquestionably the evidence record we cannot now not, initially, at least demonstrates that work related matters were renting the motel stay Sulphur Springs and for reason for the in White room. parties It is certain there more for these to do the not was work

¶ morning. Perhaps next there was. The fact that there was no work understandable, actually given happened previous done is what night. Again, this is for the fact finder. It is the District Court that saw and heard the witnesses. fraud, planning amounting

Deliberate and lies to actual based on clear convincing evidence, my view, should not be facts determined by this court. Nevertheless, MCA, above, 27-1-221(2), as stated in ¶ §

provides deliberately disregarded high that if Ness facts that created a probability injury proceeded Beaver and still to act in intentional disregard high probability injury, he guilty such of actual malice. There is no mention of in the motive definition of malice. findings of the District Court that Ness assaulted and that he was to control impulses, unable his which must mean that judge the trial unplanned, believed the assault was an spur of the thing, moment does change intentionally the fact that Ness acted and that he high probability, certainty, was aware of a even a damaged. would be vex, Malice is present annoy, injure when there is a wish to person. (1934), another Ry. Cashin v. Northern Pac. Co. 96 Mont. 110-11, statutory malice, 28 P.2d 869. The definition of actual § 27-1-221(2), MCA, objective is an determining malice, criterion for person’s which is based on a stemming deliberate behavior from an disregard probable injury DPHHS, intentional to another. v. Plouffe 64, 29, 184, 29, 2002 MT 309 Mont. ¶ P.3d 29. As a matter ¶ ¶ law, the conduct of Ness as found the District Court constitutes actual malice. finding District Court’s of fact that an assault occurred is

supported by finding substantial evidence. The of fact that Ness’ motive did not rise to the of actual level malice incorrect. The act of the assault constitutes malice. The District Court’s conclusion of law that Ness could punitive damages Ergo, not be liable for is erroneous. agree I this matter must be remanded for consideration of punitive damages pursuant 27-1-220(1), MCA. §

Case Details

Case Name: Beaver v. Montana Department of Natural Resources & Conservation

Court Name: Montana Supreme Court

Date Published: Oct 14, 2003

Citation: 78 P.3d 857

Docket Number: 01-534

Court Abbreviation: Mont.