                                          No. 04-665

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2005 MT 138N



BETH A. THORSEN,

              Plaintiff and Appellant,

         v.

MONTANA DEPARTMENT OF LABOR &
INDUSTRY, MONTANA DEPARTMENT OF COMMERCE,
and ROBERT SIMONEAU, in his official and individual capacities,

              Defendants and Respondents.



APPEAL FROM:         District Court of the Ninth Judicial District,
                     In and For the County of Pondera, Cause No. DV 2000-60
                     Honorable Marc G. Buyske, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Shari M. Gianarelli, Gianarelli Law Office, Conrad, Montana

              For Respondents:

                     James M. Scheier, Agency Legal Services; James J. Screnar,
                     Assistant Attorney General, Helena, Montana (for Montana
                     Department of Commerce)

                     Lorraine A. Schneider, Department of Labor & Industry,
                     Helena, Montana (for Montana Department of Labor &
                     Industry and Robert Simoneau)



                                                  Submitted on Briefs: May 10, 2005

                                                             Decided: June 7, 2005

Filed:

                     __________________________________________
                                       Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.


¶1     Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2003, the following memorandum decision shall not be cited

as precedent. Its case title, Supreme Court cause number and disposition shall be included

in this Court’s quarterly list published in the Pacific Reporter and Montana Reports.

¶2     Beth A. Thorsen (Thorsen) appeals from the judgment entered by the Ninth Judicial

District Court, Pondera County, on the jury verdict in her discrimination claim against the

Montana Department of Labor and Industry (DOLI), the Montana Department of Commerce

(DOC) and Robert Simoneau (Simoneau). We affirm.

¶3     We restate the issues on appeal as follows:

¶4     1. Did the District Court abuse its discretion in admitting evidence regarding the

qualifications of the external applicant who ultimately received the job with the DOC?

¶5     2. Did the District Court abuse its discretion in instructing the jury?

¶6     3. Does substantial credible evidence support the jury’s verdict that the DOC did not

unlawfully discriminate against Thorsen?

¶7     4. Does substantial credible evidence support the jury’s failure to award damages for

the DOLI’s unlawful retaliation against Thorsen?

¶8     5. Did the District Court err in denying Thorsen’s motion for attorney’s fees and

costs of suit?




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                                     BACKGROUND

¶9     In 1997, Thorsen worked for the DOLI as the manager of the job service office

located in Shelby, Montana, under Simoneau’s supervision. The DOLI underwent a

reduction-in-force (RIF) that year which resulted in the elimination of several job service

manager positions. Thorsen’s manager position in Shelby was combined with the manager

position in Cut Bank, Montana. Although Thorsen applied for the combined manager

position, another candidate was chosen. Thorsen subsequently filed a racial discrimination

claim with the Montana Human Rights Bureau challenging the DOLI’s decision not to hire

her for the position. Her discrimination claim eventually was dismissed administratively and

she did not pursue the claim.

¶10    Following the elimination of her manager position in Shelby, Thorsen registered with

the DOLI’s RIF registry, which provides state employees subject to layoffs the right to apply

for state jobs prior to the position being advertised to the general public. In December of

1998, the RIF registry notified Thorsen that the DOC was accepting applications for a

Regional Development Officer. Thorsen applied for the position to the DOC and submitted

required supplemental information. The DOC interviewed Thorsen for the position and

contacted four people for references regarding her abilities to perform the job, one of whom

was Simoneau. The DOC subsequently notified Thorsen she had not been selected because

she was not qualified for the position. Thorsen then brought this discrimination action

alleging that the DOLI and Simoneau unlawfully retaliated against her by informing the DOC



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hiring committee of her prior racial discrimination complaint against the DOLI, and that the

DOC refused to hire her because of that information.

¶11    A four-day jury trial was held in February of 2004. The jury determined that the

DOLI unlawfully retaliated against Thorsen by informing the DOC hiring committee of her

prior racial discrimination claim. The jury further determined, however, that the DOC

established a legitimate nondiscriminatory reason for not hiring Thorsen and that Thorsen

failed to establish that the DOC’s nondiscriminatory reason was pretextual. The jury

awarded Thorsen no damages for her claim. In posttrial proceedings, the District Court

denied Thorsen’s motion for attorney’s fees and costs of suit. Thorsen appeals.

                                       DISCUSSION

¶12    We have determined to decide this case pursuant to Section 1, Paragraph 3(d) of our

1996 Internal Operating Rules, as amended in 2003, which provides for memorandum

opinions. It is manifest on the face of the briefs and the record that the appeal is without

merit because there was no abuse of judicial discretion, there is clearly sufficient evidence

to support the jury’s verdict and the issues are clearly controlled by settled Montana law

which the District Court correctly interpreted.

¶13    A trial court has broad discretion in determining whether evidence is relevant and

admissible and we will not overturn the court’s determination absent an abuse of that

discretion. Rice v. Lanning, 2004 MT 237, ¶ 23, 322 Mont. 487, ¶ 23, 97 P.3d 580, ¶ 23.

In reviewing jury instructions, we consider all the instructions as a whole to determine

whether they fully inform the jury of the law of the case. We will not overturn a trial court’s

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decisions in instructing a jury unless the court has abused its discretion. Byers v. Cummings,

2004 MT 69, ¶ 41, 320 Mont 339, ¶ 41, 87 P.3d 465, ¶ 41. We conclude that Thorsen has

failed to establish that the District Court abused its discretion in admitting evidence or that

the instructions, as a whole, did not adequately instruct the jury as to the law of the case.

¶14    When a jury’s verdict is challenged as not supported by the evidence, the verdict will

be overturned only if there is a complete absence of any credible evidence to support the

verdict. Where conflicting evidence exists, the credibility and weight of the evidence is

within the province of the jury and will not be disturbed unless the jury’s findings are

inherently impossible to believe. Papich v. Quality Life Concepts, Inc., 2004 MT 116, ¶ 29,

321 Mont. 156, ¶ 29, 91 P.3d 553, ¶ 29. Here, while there may have been evidence

supporting Thorsen’s theory of the case, there also was evidence supporting the defendants’

theory of the case. The jury weighed the evidence and the credibility of the witnesses, and

we will not overturn their verdict.

¶15    Thorsen requested an award of attorney’s fees pursuant to § 49-2-509(6), MCA,

which provides that a district court, in its discretion, may award the prevailing party in a

discrimination action reasonable attorney’s fees. The District Court concluded that Thorsen

was not entitled attorney’s fees under the statute because she was not the prevailing party and

we agree. Furthermore, pursuant to § 25-10-101(3), MCA, costs of suit are allowed, of

course, to a plaintiff in an action for the recovery of money or damages when the plaintiff

recovers over $50. Here, the jury did not award Thorsen any damages and, therefore, she



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is not entitled to recover costs under the statute. We conclude that the District Court did not

err in denying Thorsen’s motion for attorney’s fees and costs.

¶16    Affirmed.



                                                   /S/ KARLA M. GRAY


We concur:

/S/ JIM RICE
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA O. COTTER
/S/ BRIAN MORRIS




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