*1 LISA WILLIAMS, Appellee, Plaintiff and v. INC., AGENCY,

JOE LOWTHER INSURANCE Appellant. Defendant LISA WILLIAMS, Appellee, Plaintiff and v. INC.,

JOE AGENCY, LOWTHER INSURANCE Appellant. Defendant INC., JOE AGENCY, LOWTHER INSURANCE Appellant, Plaintiff, Petitioner LISA WILLIAMS, Respondent Appellee. Defendant, DA 06-0609. No. August 22, Submitted on Briefs 2007. February Decided 2008. MT 46. 394. 177 P.3d 1018. *2 Amsden, Beck, L. Appellant: For John Amsden & Ruggiero, PLLC, Bozeman. Oliver, Associates, & Appellee: Phillip

For R. Oliver Billings. the Opinion JUSTICE COTTER delivered of the Court. 24, 2006, July On the District of the

¶1 Thirteenth Judicial upheld Rights an order of the Montana Human Commission (HRC) Final Agency which affirmed a Decision of the Montana Industry Department (Department). of Labor and The Department’s granted damages final a judgment appellee decision Lisa (Williams) for complaint Williams based on sexual discrimination against which she Joe Lowther appellant filed Insurance Agency, (Corporation). appeals Inc. now Corporation District Court’s decision. We affirm. PROCEDURAL

FACTUAL AND BACKGROUND (Lowther) Joe Lowther became the sole shareholder and owner of father, in late after the death of his Corporation Joe Lowther, Lowther, Corporation Sr. Joe Sr. had formed the in Billings, manager Montana in as the district and served Farmers (Farmers). Lowther assumed his Group position Insurance father’s when he took the Corporation. over met in 1997 or 1998 while he was a patient Lowther Williams

Heights Eye Billings. Care Center in Williams worked there aas divorced father ofthree receptionist. Lowther was a children. Williams was married children. Lowther and Williams began with two relationship, approached and sometime in Williams Corporation. Initially refused, coming about to work for the but May his offer in of 2001. At accepted time, then women two other the office for Lowther. In August Lowther and worked consensual, into a entered relationship. They Williams spouse. affair from of2002, this Williams’ By January concealed while in the were still Williams Lowther’s other left, had was employees Lowther’s sole employee. 2002, Williams and her proceedings In June husband initiated child. In third summer of 2002 adopt began pressing Through to divorce her husband. the end of 2002 and into 2003, Williams resisted this early pressuring, to the citing pending of the child and the adoption initiating untimeliness of a divorce holiday May season. In 2003 Williams’ job, lost his during husband stay reason, home with and he decided children. For some betrayed. Lowther and he felt infuriated Lowther then increased his Williams to leave her persuade efforts to husband. these successful, not in late May efforts were of 2003 Williams ceased relations Lowther. with having point, things steadily went From downhill between Lowther quarreled public, The two and the

and Williams. work environment and unbearable to Lowther tense because he and Williams were working at the only persons Corporation. On June Williams, telling *3 met her he could not “take” the Lowther anymore. them between Lowther told that he situation Williams more than personally her He her a professionally. needed offered consisting wages package lump payment and a sum and severance him, either an a choice: resume intimate or gave relationship her with time, At the job. Williams making approximately leave her money $36,000 year and needed the to per support family. her She was angry, and refused Lowther’s shocked and offer. day, telephoned Williams The next Lowther and told him she had

¶6 attorney, and that if he attempted an to end her gone employment wages he in “big her would be reiterated or reduce trouble.” Lowther offer, the increasing amount of the previous lump payment. his sum this offer as well. refused Williams 4, 2003, August employment Lowther On terminated Williams’

¶7 lengthy After a the Corporation. concerning discussion status with the for the Corporation, again business matters told pending he needed her more and personally professionally, than her a choice resuming between an intimate again offered losing job. her Williams refused to leave her husband him with her with Lowther. and resume executives for Farmers fired, After she was Williams went discharged. Williams told the complained wrongfully that she had been Lowther, relationship with but executives that she had an “emotional” relationship with him. falsely “physical” denied that she had a led executives them believe Williams’ statements to the Farmers’ relationship with that Lowther had a sexual Williams and pursued during unwelcome the entire found his attentions relationship. arranged meeting with Lowther to Farmers’ executives Williams, firing falsely

discuss this matter. He lied about denied did, however, he had had a her. He physical relationship with admit including exchange the to much of the rest of the of notes gifts, personally, and his that he needed her repeated statements 15, professionally. meeting August 2003, but not on Soon after gave option resigning Farmers’ executives from Farmers, being or He position manager as district fired. chose the former course. 21, 2003, complaint On filed a November

Department, alleging against “discriminated Corporation (female) subjected on the her to basis of sex it unwelcome when pro quo culminating Corporation] [the when harassment August 4, A employment terminated her on or 2003.” contested about Billings case on the in 18 and matter was held October Department. before a On March hearing examiner for Agency Final Decision. On hearing examiner issued a law, basis of extensive and conclusions of findings of facts concluding that Williams, Corporation examiner ruled in favor of against “discriminated her because of sex.” examiner ordered the $30,155.13 damages. Corporation pay to Williams On appealed ruling May to the HRC. Agency order, Decision. In its Department’s HRC affirmed the Final the HRC held as follows: that, end, discussion,

In this is still the Commission noted Joe Lowther was Lisa Williams employment relationship. and, Lowther’s actions should not be supervisor employer, as the than are. excused is smaller others simply because the office options besides termination. employer failed to consider other *4 consideration, Therefore, the Commission after careful and due matter Decision is Agency concludes that the Final complies with the essential supported by substantial evidence 24.9.1717(2). R. Mont. requirements of the law. Admin Court, appealed ruling the HRC’s to the District challenging the Department’s Agency Final Decision on several First, grounds. argued procedural irregularities he in the Second, proceedings prejudiced rights. he substantial maintained valid, although hearing examiner had noted non- discriminatory firing, reasons for Williams’ he failed make argued analysis.1 essential to a “mixed motive” that at best case, proved Department a “mixed motive” and that improperly damages awarded in violation of Admin. R. M. 24.9.611. Third, contended that to prove Williams had failed she was protected class, of a and further failed to that her member termination illegal discrimination, was due to simply instead relationship natural fallout from the end ofher with personal Lowther. challenges, District Court and affirmed the rulings of the HRC and examiner. The concluded that Williams had made a facie a case of showing of discrimination, quid pro and that a presumption discrimination, termination was not based on sexual because of the As previous relationship, apply. consensual did not stated District Court: timing all-important point ofthe termination is to this case-a overlooking. explained

Petitioner is intent on As noted above and fully Agency’s Fact, May 2003, in late Findings more parties stopped having pressured Respondent sex. Petitioner 20, 2003, leave her husband. On June after months of discussion regarding their future Petitioner consternation Respondent package offered a severance and a choice. She could either an intimate Petitioner and leave relationship resume with husband, job. Respondent her or she could leave her did not want job. Petitioner or leave her On to resume August Respondent. Petitioner fired Agency agrees concluded and this Court Petitioner’s His quid quo pro actions constituted sexual harassment. pressuring Respondent to resume amounted advances, requests, and conduct. He then unwelcomed sexual submission explicitly made to the choice he offered Respondent’s employment. rejection a term ofher Her ofPetitioner’s choicewas other, may non “Mixed motive” cases are situations where there be discriminatory E.g., terminate. Laudert v. Richland Co. reasons for decision to Dept., 7 P.3d 386. 2000 MT Sheriff’s *5 the reason for her dismissal. Co., Court, citing Lincoln Co. v. Sanders 261 Mont. The District (1993) MCA, 2-4-702(l)(b), rejected also

344, 862 P.2d 1133 and § holding that because Lowther argument, Lowther’s “mixed motive” hearing the examiner he could not argument failed to raise this before Moreover, the District Court. the judicial raise it for review before variety of non- District Court noted that while Lowther offered a Williams, discriminatory for his decision to terminate this was reasons facie case for sexual done after Williams had made Thus, already discrimination. the burden had shifted to Lowther to non-discriminatory hearing reasons for the termination. The termination, proffered examiner found Lowther’s reasons for the including job and a offer poor performance allegedly work had another In company, pre-textual. particular, received with to be pointed hearing Finding the District Court to the examiner’s of Fact No. where the examiner found that even after Lowther had returning job terminated Williams he offered her the choice of to her him, undercutting if she resumed her intimate as any argument non-discriminatory Lowther fired Williams for rejected argument reasons. District Court also Lowther’s that the hearing “specific examiner failed to make and substantial rejected it pretext legitimate, non-discriminatory before his reasons for Respondent’s pointed specifically termination.” The District Court roughly fifteen Findings provided support of Fact that substantial for hearing examiner’s decision. Additionally, rejected the District Court claim that the Lowther’s hearing prejudiced rights by irregularities examiner his virtue of in proceedings. hearing, attempted expert At the to offer testimony explained why which have his decision to terminate would commercially light Williams was reasonable in of a “love contract” parties allegedly which the had entered into. This “love contract” was supposedly agreement parties an that if the between ended, Corporation. hearing would leave the officer irrelevant, rejected expert testimony and noted that whether parties question or not the entered into a “love contract” was a of fact Lastly, District require expert testimony that did not to resolve. hearing examiner rejected argument prejudiced rights by changing legal basis for his substantial examiner announced hearing decision. Lowther maintained the first Keppler Tp. that he found in v. Hinsdale apply would the standard (N.D. High Supp. Sch. Dist. 715 F. Ill. which for a presumption non-discriminatory claims mandates a reasons parties initially termination when the had entered into a consensual adoption sexual relationship, changed but then course and of this Court discounted presumption his final decision. argument, finding adopted hearing examiner never Keppler presumption, required nor was he to do so. Court and appeals

¶16 Lowther the District Court’s decision to this raises issues four issues. we decline to three of these address them below, he properly preserve because failed to either raise them or Indus., 15, 289 appeal. Easley, MT 145, Inc. v. ¶ Unified (“The 255, 15, 961 that this general P.2d rule in Montana is ¶ time on Court will not first address either issue raised for the instance, appeal or a party’s change legal theory.”). For argues affirming the HRC erred in examiner’s *6 other Corporation decision on the basis that failed to pursue did options However, Lowther prior terminating Williams. See 11. ¶ not Similarly, raise before the Lowther this issue District Court. argues failure to that should denied due her Williams be relief mitigate Lowther damages stemming Again, from her termination. Finally, failed Lowther to raise this issue before the District Court. damages argues case, proved that he has a “mixed motive” and that were raise this improper Although under Admin. R. M. 24.9.611. he did Court, issue it because before the District the District Court he Lowther had not 14. raised it before examiner. See ¶ 2-4-702(l)(b), MCA, could have challenged this conclusion under § provided argument he could demonstrate that his failure to raise the before has not agency “good was for cause.” presented in his briefs. argument, or even alluded to this statute Thus, foregoing appeal. we decline to address the issues on

ISSUE District Did the remaining appeal ¶17 We state the issue on as follows: Department affirming err in the decisions the HRC and of illegal that on Corporation Williams’employment terminated based sexual discrimination? OF REVIEW

STANDARD administrative contested “A decision in a district court reviews an erroneous clearly case to of fact are determine whether the employ correctly interpreted and the law. We agency whether the affirming or reviewing same a district court order standards when Ostergren Dept. Revenue, decision.” reversing an administrative of (citation 738, P.3d ¶ ¶ 2004 MT ¶ omitted). Moreover, present must raise issues “[pjarties A district court has agency authority at the level. no develop evidence agency judicial on review determinations. to address new evidence the same limited such, scope of review.” As this Court is bound Ostergren, 15. ¶

DISCUSSION failed to her argues prove 19 Lowther that termination Williams was ¶ sex, due to based on Department, Court, HRC, concluding erred in and the District otherwise. In Bryson U., that under v. Chi. St. particular, argues 96 F.3d (7th required she is Cir. Williams a member of class, subject advances, to unwanted protected that she was motivated, sexually but and that Lowther’s conduct was she has failed Keppler, to do so. also claims that under a presumption arises terminating this case that his reasons Williams were due to relationship, fallout from their and not based on sex discrimination, presumption. and that Williams failed to rebut this has Court, HRC, argues and the Department correctly determined she was terminated based on discrimination. argues that even under Keppler, which arguably position, is supportive proven has discrimination, Keppler recognizes because that “if an employer employee employee if the threatens retaliation to the fails to continue gender an action there can be based or sex.” (See 14) Finding support Williams cites Fact No. 42 for this conclusion, alleged not points finding, out that Lowther has *7 any findings, clearly or are erroneous. Additionally, indeed of the other arguments she subject Williams refutes Lowther’s that was not to maintains that unwanted sexual advances. Williams Lowther’s the relationship her to return to were repeated requests requests for favors, constituting Finally, for sexual thus unwanted sexual advances. correctly hearing examiner concluded argues intimate resuming issue of Lowther’s motivation fact, prove that Lowther failed to question was a of before to return to the former relationship examiner that he “was motivated for reasons other than sex.” (MHRA) Rights Act bans employment The Montana Human 49-2-303(l)(a), Quid Section MCA. pro

discrimination because sex. 402 are cognizable discrimination claims

quo sexual under the MHRA. City Plumbing v. Garden Campbell Heating, 2004 MT ¶ 15, 434, 546, 97 Mont. P.2d 15. closely- ¶ Because the MHRA is Rights Title VII of the Civil 1964, modeled after Act frequently we case in construing federal law Stringer-Altmaier refer to MHRA. 16-17, MT Haffner, 16-17, 138 P.3d ¶¶ ¶¶ 16-17. ¶¶ date, explicitly we have not To defined the to required elements quid pro facie case for prima make a sex discrimination. examiner, this, recognizing hearing cited to the definition 1604.11, sexual harassment as set forth in actionable 29 C.F.R. which § to R. pursuant Chance, Admin. M. adopted 24.9.1407. Harrison v. (1990). 215, 220-221, 797 P.2d 244 Mont. 203-204 advances, requests favors, Unwelcome for sexual and other physical or conduct of a verbal sexual nature constitute sexual (1) harassment when submission to such conduct is made either implicitly or a term or explicitly condition of an individual’s (2) to or rejection submission employment, of such conduct is used as the basis for employment affecting individual decisions such individual.... 1604.11(a).

29 C.F.R. § hearing further examiner found that under federal law a claim is properly “job sexual discrimination pro quo considered as hearing examiner Rotary, claim.” detriment cited to Priest v. (N.D. Cal. where job the court Supp. equated F. detriment “tangible job where situations [are conditioned] claims to benefits requests for sexual acquiescence favors or other conduct of a sexual Priest, Supp. 634 F. at nature ....” 581. The officer also MHRA, inconsistent with the rejected, argument that in alleged ending where discrimination follows the of a cases Keppler courts to requires adopt consensual the alleged presumption harassment is fallout from shift the relationship, and burden the claimant to show Keppler, due to sex discrimination. Supp. conduct was 715 F. at 868-69. Court, the District and on us to appeal, urges Before presumption as well as a Keppler Bryson five-factor test from adopt the following showing claimants to make facie requires which quo sex cases: quid pro claim, many such use a five- appeal In order courts (1) test, asking plaintiff whether shown or part has (2) group, of a protected a member the sexual advances were he is

403 (4) (3) motivated, sexually the unwelcome, the harassment was advances affected supervisor’s reaction to employee’s the (5) respondeat superior tangible aspect employment, of her has been established.

Bryson, 96 F.3d at 915. test, adopt The District Court five-factor declined federal are

concluding that “the in the Guidelines the elements found proper employer method to has committed determine whether satisfy can the terms pro quo sexual harassment. If a found party therein, quid pro quo case of that is sufficient to establish a facie employ an unnecessarily harassment. There is no need Similarly, complicated overly test.” the District Court formalistic Montana, in rejected adoption noting of the Keppler presumption holding by that its other courts. E.g., has been criticized Babcock v. 1990). (S.D.N.Y. Frank, 729 F. While the District Supp. 279 may acknowledged previous play that a consensual role determining cases, has occurred in some whether sex discrimination inapplicable present the District Court found factor to the such a controversy. by As stated Court:

[WJhen, affair is over case, employer as in the instant and the penalty physical threatens a if the will not continue the employee illegal “commits employer sex-based Babcock, cognizable” quid pro quo under claim. Supp. F. at 288. Accordingly, analysis its on whether District Court focused hearing Williams’ claims of supported examiner’s sex did, they discrimination. The see District Court concluded showing to rebut “by Lowther’s attempts by back as motivated characterizing Respondent his efforts to win by and not a desire desire to continue their romantic sexual intercourse with an employee.” provided Lowther has We affirm the District Court’s conclusion. test, Bryson

no multi-factor or the persuasive adopt reason to Instead, looking continue to both our Keppler presumption. we will resolving body guidelines case law and the federal 220-221, Harrison, Mont. at 797 P.2d at discrimination claims. Co., in Savino v. C.P. Hall 988 F. 203-04. As noted the district court (N.D. ... quid pro question Ill. Supp. “[on] [Supreme] Court that the E.E.O.C.’s Guidelines Sexual [has] noted judgment and informed body experience Harassment ‘constitute a ” guidance.’ resort for litigants may properly to which courts and FSB, Savino, Bank, Supp. (quoting Savings 988 F. at 1181 Meritor (1986)). Vinson, 477 U.S. 106 S. Ct. notes, challenge clearly As Williams Lowther does not No. even Finding

erroneous the examiner’s of Fact 42 that employment after he terminated her he offered Williams the choice of having job relationship. if she resumed the intimate back *9 by sexually assertion Lowther that this overture was not motivated light credulity. finding, strains the bounds of This of Lowther’s repeated employment efforts to condition Williams’ continuation of to or the intimate demonstrates that “submission rejection by [Williams was] of such conduct used as the basis for ....’’Harrison, employment affecting [her] decisions 244 Mont. at 220- 1604.11(a)). Thus, affirm (citing 797 P.2d at 203-04 29 C.F.R. we § the District Court.

CONCLUSION upholding We affirm the District Court’s decision the award damages by Department illegal of and HRC to Williams due to by Corporation. Lowther and the GRAY, CHIEF JUSTICE JUSTICES and MORRIS WARNER concur. LEAPHART, specially concurring.

JUSTICE agree I that I am separately write to note inclined upon “gender” that there is a distinction between harassment based opposed personal stemming relationship.” animus from a “failed majority recognize e.g. of federal courts such a See Mosher distinction. (7th 2001) (“[A]fter Stores, Inc., Cir. v. Dollar Tree F.3d sour, only longtime goes like this one it will be sexual v. escape summary judgment.”); Corp. that can Excel unusual case (8th (J. 1999) Loken, concurring) Bosley, 165 F.3d Cir. animus from (writing separately distinguish personal between County v. gender). See also Succar Dade discrimination because (11th 2000) Bd., (holding School 229 F.3d Cir. by gender, not his male but rather “harassment... was motivated failed contempt [plaintiff] following [the lover’s] former coincidental.”); accord gender merely was relationship; [plaintiffs] (11th Terrace, 1197, 1200 Fla., Cir. City Temple 267 F.3d Pipkins v. Brandon, Inc., 267 2001); Durango Steakhouse Lipphardt but see (11th 2001). hinges upon that distinction F.3d 1183 Cir. Here, challenge agency’s Lowther does not inquiry. fact-intensive an ultimatum which was “sexual” finding gave that he nature; is, or be fired. Since resume finding, effectively he is unable to challenged Lowther has not offer pro contest the conclusion that his I Accordingly, harassment. concur.