                                No. 8 6 - 5 7 6
                IN THE SUPREME COURT OF THE STATE OF MONTANA

                                     1987




SHARON HULETT,
              Plaintiff and Respondent,
       and
MONTANA HUMAN RIGHTS COMMISSION,
              Intervenor and Respondent.
         -VS-

BOZEMAN SCHOOL DISTRICT NO. 7,
                 Defendant/Petitioner and Appellant.



APPEAL FROM:     District Court of the Eighteenth Judicial District,
                 In and for the County of Gallatin,
                 The Honorable Frank Davis, Judge presiding.
COUNSEL OF RECORD:
         For Appellant:
                 Donald E. White, Bozeman, Montana
         For Respondent :
                 Hilley & Loring; Emilie Loring, Great Falls, Montana
                 Janice Frankino Doggett, Human Rights Commission,
                 Helena, Montana


                                    Submitted on Briefs: April 16, 1987
                                       Decided:   August 13, 1987

Filed:    AUG 1 3 19871
Mr. Justice Fred J. Weber delivered the Opinion of the Court.

      Bozeman School District No. 7 appeals a Gallatin County
District Court award granting Sharon Hulett damages for
discriminatory hiring practices under an anti-nepotism poli-
cy. We affirm.
      The issues are:
      1.    Did the lower court correctly affirm the Human
Rights Commission's ruling that Sharon Hulett had taken
reasonable steps to mitigate her damages from 1978 to 1980
and during the 1984-85 school year?
      2. Is Sharon Hulett's claim barred by laches?
      In January 1978 Sharon Hulett applied for an elementary
teaching position with Bozeman School District No. 7 (School
District).    She was not hired.  In April of that year, she
filed a complaint with the Montana Human Rights Commission
 (Commission), charging that the School District refused to
hire her for a teaching position because of her marital
status.     Her husband was the principal of an elementary
school in the district.        The School District had an
anti-nepotism policy which prohibited the hiring of spouses
of administrators.
     A hearings examiner heard the complaint in September
1981. The examiner found against the School District, since
marital status is recognized as a protected class in Montana.
He ordered that Sharon Hulett be hired, and awarded her back
wages.    The full Commission held a hearing in May 1982 and
upheld the examiner's findings.
      The School District petitioned for judicial review of
the Commission's order. The District Court upheld the find-
ing on liability and reversed on the question of damages. It
remanded the case to the Commission for further consideration
of Sharon Hulett's obligation to mitigate damages.
     The Commission reheard the case in November 1984.    It
concluded that Sharon Hulett had taken reasonable actions to
mitigate her damages, and ordered that she be hired for the
next available teaching opening and that she be awarded back
Pay    The School District again appealed.       The District
Court, after oral argument, generally affirmed the Commis-
sion's order except for modifying the damage award by sub-
tracting damages for a period of time between 1980 and 1984
during which Sharon Hulett was a graduate student at Montana
State University.   The court determined that Sharon Hulett
was not available for employment during that time. It also
found that the School District failed to mitigate its damages
by refusing to hire her until September 1985. The District
Court awarded Sharon Hulett total damages of $71,247.
                              I
     Did the lower court correctly affirm the Commission's
ruling that Sharon Hulett had taken reasonable steps to
mitigate her damages from 1978 to 1980 and during the 1984-85
school year?
     The School District argues that Sharon Hulett failed to
take reasonable steps to mitigate her damages because she did
not apply for teaching positions in schools in communities
surrounding Bozeman.    It says the Commission's conclusion
that she met her duty to mitigate her damages is clearly
erroneous under the standard established for the duty to
mitigate damages. That standard has been defined as the duty
to do what an ordinarily prudent person would do under the
circumstances. Harrington v. Holiday Rambler Corp. (1978),
176 Mont. 37, 42, 575 P.2d 578, 581.
     The Commission made extensive findings of fact with
regard to Sharon Hulett's attempts to secure employment in
schools and in other positions.      Commission's Findings of
Fact No. 3 and No. 7 are illustrative:
     3.    During the Fall of 1979, Charging Party
     [Hullett] applied for employment at clothing
     stores, jewelry stores, flower shops, doctor's
     offices, dentist's offices, the Gallatin County
     Superintendent of Schools, at Montana State Univer-
     sity and again with Respondent. In each event, she
     was unable to find employment.      Charging Party
     renewed her application with the Respondent each
     year.


     7. Charging Party was reluctant to apply to rural
     schools for teaching because they paid much less
     than the Respondent and would involve lengthy
     commuting to work. The rural positions would have
     required expenditures for an all weather vehicle,
     and additional child care arrangements and expenses
     beyond what would have been required had she been
     able to teach in Bozeman.
Sharon Hulett testified that she worked off-and-on in various
teaching-related capacities during the periods in question,
and her wages from that employment have properly been deduct-
ed from the damages awarded to her. She testified that in
the last period of time with which we are concerned, 1984-85,
because her children were older and she had moved from
Bridger Canyon to the City of Bozeman, she had submitted
written job applications to several of the school districts
in the area surrounding Bozeman. At that time, both Sharon
Hulett and the School District were aware that the District
Court had affirmed the Commission and ordered the School
District to offer Sharon Hulett the first available teaching
job.
     We have reviewed the testimony of Sharon Hulett and the
other evidence, and conclude that there is substantial credi-
ble evidence to support the findings of the Commission. We
affirm the holding of the District Court that the conclusion
on the part of the Commission that Sharon Hulett had met her
burden on mitigation of damages for 1978 to 1980 and 1984-85
was not arbitrary or capricious.
     The School District further contends that the damages
awarded for the 1984-85 school year have been miscalculated
by a failure to deduct Sharon Hulett's actual wages earned in
1984 and by the use of the M.A. pay scale rather than the
B.A. pay scale for the same year. The findings of fact show
that Sharon Hulett's income in 1984 was earned from January
through July of that year.     Since that income was earned
prior to the 1984-85 school year, those sums are not properly
deductible from what she would have earned during the school
year. Further, we do not accept the School Boardfs argument
that if Sharon Hulett had been employed by them she would not
have earned her M.A. degree. Full time employment would not
have prohibited Sharon Hulett from earning her M.A. in eve-
ning classes or summer school. Therefore, it is not error to
use the M.A. pay scale.     We hold that damages have been
correctly calculated.
                             I1
      Is Sharon Hulettfs claim barred by laches?
      The School District argues that Sharon Hulett is guilty
of laches and has failed to prosecute her claim in a timely
fashion.    Specifically, it points to the delay between the
filing of the claim with the Commission in April 1978 and the
decision of the Commission in January of 1982.
      "The doctrine of laches applies when a party has been
negligent in asserting a right, and where there has been an
unexplained delay of such duration as to render enforcement
of the asserted right inequitable."       Peterson v. Hopkins
 (Mont. 1984), 684 P.2d 1061, 1066, 41 St.Rep. 1140, 1146.
The record shows that Sharon Hulett was denied a position
with the School District in January of 1978. She filed her
complaint with the Commission in April 1978. The matter was
delayed until fall of 1979, pending a decision on the School
District's separate but controlling petition for a writ of
prohibition preventing the Commission from investigating any
cases involving the District. Shortly after that petition by
the School District was denied, Sharon Hulett filed an amend-
ed complaint. In 1980, the matter was investigated, certi-
fied for hearing, argued for summary judgment, and set for
hearing.   The hearing set for March 1981 was cancelled be-
cause the Commission was without funds due to legislative
action.   The hearing date was reset, hearing was held in
August 1981, and decision rendered in January 1982.
     While the delays in this action have been extensive,
especially when compounded with the additional delays suf-
fered since the January 1982 decision, it does not appear
that any negligence on the part of Sharon Hulett has caused
the delays. They rather arose as the result of one bureau-
cratic or legal snafu after another.     There are no unex-
plained delays. We hold that the doctrine of laches does not
apply
     We do wish to express to the parties, to the District
Court, and to the Commission our genuine concern about the
extreme length of time it has taken to dispose of the issues
presented here.   A total of nine years has elapsed since
Sharon Hulett's claim arose.    The delays found here, while
not the fault of any one body, cumulatively result in a
potential injustice to all parties.
     Affirmed.



We Concur:

  / ,IT-
_ - *
 ,      Chief Justice
         /
       '   (-



    Justices
/
     Mr. Justice L. C. Gulbrandson respectfully dissents to
that portion of the majority opinion affirming the monetary
award of $71,247.00, plus entitlements in the form of fringe
benefits.
     In my view, the testimony of the plaintiff herself
demonstrates that the finding of the Commission that
plaintiff had met her burden on mitigation of damages should
not be affirmed.   The plaintiff testified that, in effect,
she applied to no school district outside of Bozeman, even
though one of the principals had approached plaintiff about
an application, and unrefuted evidence showed there were many
teaching vacancies within ten miles of Bozeman during the
period in question, and that a high percentage of teachers in
those schools lived in Bozeman.
     To the plaintiff's credit, she gave candid reasons for
her failure to apply for a teaching position, including the
reason that the rural schools paid about $2,000 to $4,000
less than the defendant school district.   A most revealing
reason given by the plaintiff for her failure to apply was
the following:

    The other thing, too, is that definitely through
    all this, I was probably naive enough to think that
    all this was going to be resolved fairly quickly,
    and that within a year or so, [it] would be taken
    care of and I would be teaching in Bozeman, and,
    you know everything would be just fine.
     It is my opinion, based on the entire record, that the
evidence shows that the plaintiff failed to exercise
reasonable diligence in mitigating her damages and therefore
the monetary award should be reduced by the amount she could
have earned had she exercised reasonable diligence in
applying for a teaching position.


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