Using words such as “paranoid” and “unreasonable” to describe some of Kalinyaprak's complaints, Gregory L. Hanchett said that far from discriminating against anyone, the city's policy of offering season-pass discounts to married couples was designed to encourage more use of its municipal golf course by a broader range of people, not to discourage anyone from playing golf there.
Kalinyaprak, who is single, already enjoyed a potentially significant discount over other people, married or not, who paid the daily greens fees to play golf at Polson Bay Golf Club, Hanchett noted.
“Kalinyaprak's argument that the city's conduct in the lawsuit was retaliatory borders on the paranoid,” Hanchett wrote in his decision.
He called Kalinyaprak's contention that he was treated differently at a public meeting concerning a proposed Wal-Mart Supercenter “just wrong and indeed ... unreasonable.”
Kalinyaprak is out of the country until next month. Responding to an e-mail request for a telephone interview Monday, he wrote, “I'm not quite ready to say much in a hurry. ... I haven't quite digested it. After I do that, I may try to appeal and pursue it further to the best of my means and ability.”
In his decision, Hanchett also denied a request made by Kalinyaprak on the last day of the hearing, which was conducted in late May and early June, to amend his complaint to allege religious discrimination as well.
During her testimony Marty Corse, secretary-treasurer of the Polson Golf Association and wife of City Council member Tom Corse, said Kalinyaprak's Web site offended her religious beliefs.
“Kalinyaprak provided no evidence from which a trier of fact could find that his religious beliefs had caused anyone to discriminate against him,” Hanchett wrote.
Kalinyaprak, a self-employed computer programmer who came to the United States from Turkey in 1978, represented himself at the hearing, which is run under rules similar to a court proceeding. He chose to pursue several lines of questioning that Missoula attorney Jack Jenks, representing the city, successfully objected to over matters of hearsay and relevance, and that Hanchett often warned Kalinyaprak had no bearing on issues alleging discrimination or retaliation.
Kalinyaprak, who moved to Polson in 1992, took up golf in 1999 primarily for the exercise.
“It is a way to get in a fast walk for an hour,” Kalinyaprak told the Missoulian last year. “I like it because it is not boring to walk a golf course, and I have fun at the same time.”
He said he became concerned about rising prices at the course in 2004. When he was told the golf course didn't have any statistics or breakdowns about people who purchased season passes, he volunteered to enter the data into a computer, and the course loaned him its membership list so he could do so.
Kalinyaprak claimed that he found names of people who had purchased the discounted couple's pass who were not what he considered couples in the traditional sense of the word, including people who listed different addresses. The next year Kalinyaprak and a female friend asked for, and were sold, a couple's pass.
But when Kalinyaprak argued that the city should define “couple” in loose enough terms and make the public aware that most any two people could pair up and get the discount, the city instead defined “couple” as “a solemnized marriage to include common law.”
To Kalinyaprak, that meant marital status would determine who could pay less money and golf the same amount in Polson.
“That really is against the anti-discrimination laws of the state,” Kalinyaprak said.
But Hanchett found otherwise.
“The rationale for offering a couple's pass is straightforward, legitimate and obviously not based on any desire to discriminate,” Hanchett wrote. “As the 2006 notice indicates (and the hearing officer finds), the ‘rationale for offering a couple's pass was to make it more economically attractive (especially when also considering junior pass rates) for families to enjoy the recreational opportunity Polson Country Club has to offer.' ... These are wholly legitimate reasons for implementing a couple's discount.”
At the time, a single pass cost $395 while a couple's pass sold for $700, or $45 per person less.
Polson Bay Golf Club quit selling couple's passes after Kalinyaprak filed his complaint.
Montana law makes it illegal to make persons feel unwelcome, unaccepted, undesired or unsolicited because of their marital status, Hanchett said. Kalinyaprak was never discouraged from, nor denied an opportunity to, purchase a season pass, Hanchett's decision said, and the $45 difference in price was clearly not intended to discourage single people from golfing in Polson.
To the contrary, Hanchett wrote, “these discounts are designed to encourage access to the broadest range of persons possible, something which any interpretation of the discrimination statutes should welcome, not discourage.”
The hearing officer cited several court decisions upholding the right to offer discounts such as “ladies nights,” where the discounts are intended to encourage one group's patronage, not discourage another group from participating.
Kalinyaprak also charged that the city illegally retaliated against him in several ways after he filed his complaint with the Human Rights Bureau.
Among other things, Kalinyaprak alleged, the city terminated Kalinyaprak's Web site services for the golf course, refused to pay an $86 bill for those services until Kalinyaprak took the city to court, refused to let him speak during the public comment period at a City Council meeting and cut him off before his time was up at the Wal-Mart hearing.
“It is clear that all of Kalinyaprak's evidence of retaliation fails either because the alleged act does not demonstrate a prima facie case or he has failed to carry his burden of persuasion to prove by a preponderance of the evidence that the alleged act was retaliatory,” Hanchett wrote.
A prima facie case of retaliation exists when the charging party shows they have engaged in a statutorily protected activity, they have been subjected to adverse action, and that a casual link exists between the protected activity and the adverse action.
If the charging party is successful, the burden of production shifts to the respondent to show a legitimate, nonretaliatory reason behind the action.
Saying a letter from Polson golf pro Roger Wallace terminating Kalinyaprak's contract to provide Web site services was “proof enough in itself,” Hanchett found instead that Wallace was entirely within his rights to end the affiliation.
“It was a legitimate business decision, borne both (of) Wallace's concern about the service Kalinyaprak was providing (golf course employees could not easily access the Web site to post things) (and) ... that Wallace was aware that Kalinyaprak was generally unhappy and openly and vocally critical of the way the golf course was being run,” Hanchett said. “Wallace felt he could no longer continue in a business relationship with Kalinyaprak under such vocal and directed criticism.”
The city had every right to defend itself against the $86 claim (which it eventually paid before the case went to trial, plus Kalinyaprak's $20 filing fee), and every right to move the case from small claims court to district court, where city attorney James Raymond could appear on behalf of the city, Hanchett said.
“It is abundantly clear the city attorney did not undertake any action as part of some larger conspiracy to get back at Kalinyaprak,” Hanchett wrote, noting the city eventually capitulated to Kalinyaprak's demand and paid him. “There is no rational way for the hearing officer to find that the city's conduct was retaliatory.”
Tom Corse, fresh out of a training session with the city attorney, was reasonable in not allowing Kalinyaprak to discuss his lawsuit against the city at a council meeting on May 15, 2006, and Kalinyaprak failed to show that retaliation played any part in former Mayor Randy Ingram's decision not to place him on the council agenda for an Oct. 16, 2006, meeting, Hanchett found.
Ingram testified he was submitting his resignation that night, and did not want to listen to Kalinyaprak question the ethics of himself and council members that evening. Kalinyaprak was allowed to speak at council meetings before and after that night, Hanchett noted.
Finally, there was the issue of the Wal-Mart hearing. Council member Bruce Agrella allegedly crossed the stage at Polson High School and cut Kalinyaprak off before his two minutes were up during the public comment period.
While an investigator for the Human Rights Bureau found reasonable cause to believe that “no other citizen in attendance at the meeting was approached, accosted and dismissed by Agrella or any other council member in the same fashion as Kalinyaprak on the evening in question,” Hanchett pointed out that Kalinyaprak had already addressed the council once that night, and ultimately spoke three times.
Hanchett said Agrella “approached him very near the time his two minutes expired, but did nothing to him and did not speak to him.”
Hanchett wrote that Kalinyaprak “severely undercut” his own credibility as a witness by claiming retaliation had taken place when the city moved his lawsuit against it from small claims court to justice court, and by his argument that the council was retaliating against him at the Wal-Mart hearing.
“Kalinyaprak's insistence that these acts were retaliatory when they obviously were not calls into question his credibility as a witness,” Hanchett wrote.
“As it was one of my main goals to expose the facts, I will at least try my best to publicize all documents filed and testimonies recorded during this case so that people who may care to learn the facts of this case will be able to access them easily on the Internet,” Kalinyaprak wrote in his e-mail to the Missoulian.
Kalinyaprak can appeal Hanchett's decision to the Montana Human Rights Commission, made up of five citizens appointed by the governor. Decisions there can be appealed by either party into the court system.
Decision online
To read the entire court decision, click here.
Reporter Vince Devlin can be reached at 1-800-366-7186 or at vdevlin@missoulian.com.
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