No. 93-535
IN THE SUPREME COURT OF THE STATE OF MONTANA
BONNIE MARTINELL,
Plaintiff and Respondent,
MONTANA POWER COMPANY,
a Montana Corporation,
Defendant and Appellant.
APPEAL FROM: District Court of the Sixteenth Judicial ~istrict,
In and for the County of Rosebud,
The Honorable Joe L. Hegel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Patrick T. Fleming, Butte, Montana
For Respondent:
Rosemary Boschert, Billings, Montana
Submitted on Briefs: October 13, 1994
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.
Defendant Montana Power Company appeals the decision of the
District Court of the Sixteenth Judicial District, Rosebud County,
in an action claiming discrimination based on handicap and
constructive discharge from employment. After a nonjurytrial, the
District Court ruled in favor of Montana Power Company, concluding
that the defendant had no duty to accommodate a handicapped person
under the law in effect when Bonnie Martinell terminated her
employment with defendant. The District Court reversed that ruling
on plaintiff's Motion to Alter or Amend Findings of Fact,
Conclusions of Law and Judgment, concluding that defendant did have
a duty to reasonably accommodate Bonnie Martinell. The District
Court awarded damages for past and future loss of wages in the
amount of $467,364. We affirm.
The issues are restated as follows:
I. Did the District Court err in concluding that Bonnie
Martinell was a "handicapped"person according to the Montana Human
Rights Act?
11. Did the District Court err in concluding that the pre-
1991 version of § 49-2-303(1)(a), MCA, imposed a duty of reasonable
accommodation on Montana Power Company?
111. Did the District Court err in concluding that Bonnie
Martinell had been constructively discharged by Montana Power
Company?
IV. Did the District Court err by awarding $467,364 in
damages to Bonnie Martinell?
2
Bonnie Martinell (Martinell)was employed by defendant Montana
Power Company (MPC) as a Chemical Laboratory Technician in MPC's
Colstrip Units No. 1 and No. 2 from April 21, 1981, through
September 6, 1984. She previously worked as an Environment and
Range Technician for Western Energy Corporation, one of MPC's
wholly-owned subsidiaries.
As a lab technician for MPC, Martinell performed chemical
analyses, trouble-shooting and chemical treatment on water, coal
and scrubber systems. Initially, all the employees in the Chemical
Lab worked day shifts. At some point in 1983, she and other lab
technicians working in the Chemical Lab began working rotating
shifts in an effort to cut down on overtime. The shift rotation
schedule covered the hours from 6:00 a.m. until midnight and
eliminated much of the overtime for all employees in the Chemical
Lab.
Duringthe summer of 1981, Martinell's physician had diagnosed
her as suffering from endometriosis, a disease affecting the female
reproductive system whereby uterine tissue detaches from the uterus
and becomes attached to other body tissues and organs. From 1981
through her termination of employment in September of 1984, and
beyond, Martinell was treated for endometriosis, with her condition
worsening over time. The medical treatment she received included
medications which caused depression. These medications included
Danocrine and Provera. Endometriosis can abate during a pregnancy
and Martinell experienced an improvement in her condition during a
pregnancy in 1983.
After giving birth to her first child in August of 1983,
Martinell's endometriosis symptoms resurfaced and she again took
medication for pain and other symptoms, which in turn caused a
recurrence of the medication induced depression. She also
experienced unusual neurological symptoms of unknown cause. Dr.
Rauh, her gynecologist, advised her that the only definitive cure
for her endometriosis was a complete hysterectomy. Martinell did
not want a hysterectomy at that time because she hoped to have more
children. Because of the endometriosis, Martinell missed numerous
days of work for which she received sick pay. This eventually
placed her job in jeopardy due to excessive absenteeism.
The disease worsened and after discussing medical options with
Martinell in early 1984, Dr. Rauh suggested that she try to arrange
her work scheduling to more regular hours. He offered to write a
letter explaining the reasoning for this, if necessary. Martinell
then discussed the matter with co-workers to find out whether it
would cause them problems if she were to request day shifts. In
April of 1984, Martinell requested that Dr. Rauh write a letter on
her behalf in support of changing her shifts. Dr. Rauh wrote a
letter addressed "to whom it may concern," stating that Martinell
would be "greatly benefitted medically by regular working hours not
to exceed 40 per week" to allow normal sleep patterns and to
minimize other symptoms of her endometriosis. Dr. Rauh stated
further that a more "normal" schedule for sleeping would eliminate
stress which tends to worsen endometriosis.
Martinell presented this letter to her supervisor along with
her request for day shifts. Her request for straight day shifts
was denied despite the fact that at least one fellow employee,
Becky Dodd, offered to trade her day shift for Martinell's
afternoon shift. The testimony indicates that MPC did not ask
other employees if they were willing to work alternate schedules to
accommodate Martinell's request for day shifts.
Martinell appealed the denial of her request for day shifts to
MPC's corporate Manager of Personnel Relations. Subsequently,
several male managers met with Martinell to discuss the appeal.
After the meeting, Martinell provided them with additional medical
information from her physicians to further substantiate her need
for a regular schedule. Dr. Dale Peterson, a Billings neurologist,
wrote a letter to Martinell, stating:
We have not been able to make a definite diagnosis
regarding your [neurological] symptoms, but feel that
working excessively long hours and frequent changes in
shift add fatigue which seems to exacerbate your
symptoms. If it would be possible for you to work a
straight daytime shift it would be likely that you would
notice some improvement in the way you feel.
Dr. Rauh included this information in his letter to MPC. Again,
Martinell 's request was denied. She was advised that this decision
was final and that the matter would "not be reconsidered under
.
present conditions."
After the final decision, Dr. Rauh sent another letter along
with one of MPC's "Attending Physician Disability Statements." Dr.
Rauh verified that while Martinell suffered from endometriosis and
medication induced depression, she could continue to perform the
same technical duties but should have regular work hours. MPC
refused to reconsider its previous final decision.
As mentioned above, Martinell had taken numerous sick days
because of her illness. In mid-August of 1984, after taking off
yet another sick day, John Walker, her supervisor, called her at
home and advised her she could not return to work without a written
excuse from her doctor. She advised him Dr. Rauh was out of town
for the rest of August and that she would be unable to get him to
provide her with this documentation. When Walker refused to allow
her to come back without her doctor's written excuse, Martinell
called MPC1shighest-ranking official in Colstrip to ask him if she
could be allowed to return to work without the written note from
Dr. Rauh. This official overruled Walker and specifically told
Martinell to return to work and to disregard Walker's orders.
On the day she returned to work, Walker would not speak to
her. She then submitted her letter of resignation on August 22,
1984, to be effective on September 6, 1984. Martinell was unaware
at the time she severed her employment that she was again pregnant;
she gave birth to her second child in May of 1985. Subsequently,
in November of 1986, she underwent a complete hysterectomy because
the endometriosis worsened after the birth of her second child.
Although she is not wholly free of neurological symptoms, the 1986
surgery nearly eliminated her physical symptoms caused by the
endometriosis and totally eliminated the need for medication.
After the nonjury trial in this action, the District Court
determined that MPC had constructively discharged Martinell and had
discriminated against her on the basis of her physical handicap.
Although the court determined that Martinell was a "handicapped"
person according to the Montana Human Rights Act, S 49-2-101(16),
MCA (1983), and that MPC had discriminated against her and had
failed to recognize that she qualified as a handicapped person, the
court initially ruled that MPC did not have a duty to make a
"reasonable accommodation1'for her handicap under the law in effect
in 1984. The District Court noted that the 1991 Montana
Legislature had modified § 49-2-101(16), MCA, to add the
requirement of "reasonable accommodation" effective October 1,
1991, and that no such duty had been required under the pre-1991
law. The court stated:
If MPC had a duty of reasonable accommodation, the
Court would have conclude[dl that the resulting
discriminaLion placed Bonnie Martinell in an untenable
situation, and, although there were other possible
alternatives available to Bonnie Martinell, none of these
alternatives would be considered reasonable by the Court.
Pursuant to the Martinell's post-trial Motion to Alter or Amend
Findings of Fact, Conclusions of Law and Judgment, the District
Court reversed its previous holding and concluded that MPC did
indeed have a duty to make a reasonable accommodation for
Martinell's physical handicap because the pre-1991 version of 5 4 9 -
2-303 (1)(a), MCA, impliedly imposed a duty of reasonable
accommodation on MPC. In this second Judgment granting Martinell's
post-trial motion, the District Court adopted as findings those
findings made conditional on a finding of a duty of reasonable
accommodation, including the finding quoted above. Thus, the
District Court s extensive findings fact which had effect
without a duty of reasonable accommodation, were particularly
incorporated into and given effect in the final judgment in
Martinell's favor*
Further facts are provided as necessary throughout this
opinion.
ISSUE I
Did the District Court err in concluding that Bonnie Martinell
was a "handicappedI1 person according to the Montana Human
Rights Act?
The District Court concluded that Martinell was a
"handicappedwperson within the meaning of the Montana Human Rights
Act. MPC contends that the District Court erred as a matter of law
in ruling that Martinell's condition constituked a handicap. As a
matter preliminary to our discussion on this issue, we first note
that the Montana Legislature has changed the terminology under the
Montana Human Rights Act so that the term "handicapu has been
changed to the word "disability." See § 49-2-101(15)(a), MCA
(1993). Under the law in effect in 1984, however, "handicap" was
the appropriate terminology and we will use that term throughout
this opinion.
section 49-2-101(l6), MCA (1983) , in effect at the time of
Martinell's termination of her employment, provided as follows:
49-2-101. Definitions. As used in this chapter,
unless the context requires otherwise, the following
definitions apply:
(16) 'tPhysical handicap" means a physical
disability, infirmity, malformation, or disfigurement
which is caused by bodily injury, birth defect, or
illness, including epilepsy. It includes without
limitation any degree of paralysis; amputation; lack of
physical coordination; blindness or visual impediment;
deafness or hearing impediment; muteness or speech
impediment; or physical reliance on a guide dog for the
blind, a wheelchair, or any other remedial appliance or
device.
The Montana Human Rights Commission had further interpreted the
statutory definition as follows:
The terms "mental handicap" and "physical handicap" shall
have meanings stated in section 49-2-101, MCA, with the
following clarifications:
(a) A "handicapped individualu is a person who
(i) has a physical or mental handicap which
substantially limits one or more of such person's major
life activities, . . .
24.9.801(3), ARM. This interpretation of the definition of
"handicapped individualu is the same as the definition in 29
U.S.C.A. § 706 ( 8 ) [B) (West Supp. 1994) . Guidelines from federal
enforcement agencies addressing this definition provide that a
condition will be considered a handicap if it constitutes a
"medically recognized condition1' rather than a general physical
characteristic and may be a physical disorder, a cosmetic
disfigurement, or an anatomical loss affecting the neurological,
musculoskeletal, special sense organs, respiratory, cardiovascular,
reproductive, digestive, genito-urinary,hemic and lymphatic, skin,
or endocrine body systems. 45 C.F.R. § 84.3 (j)( 2 ) (i) (1993). It
also may be a mental or psychological disorder including emotional
or mental illness. 29 C.F.R. § 1613 - 7 0 2 (b)( 2 ) (1993).
The Montana Human Rights Commission is a quasi-judicial board
which has been given rulemaking authority by the Montana
Legislature to adopt rules necessary to implement; the Montana Human
Rights Act. See 5 5 2-15-1706, MCA: and 49-2-204, MCA. This Court
gives deference to interpretations of the Montana Human Rights
Commission concerning the laws which it enforces. Link v. City of
Lewistown (1992), 253 Mont. 451, 454, 833 P.2d 1070, 1072, citinq
Harrison v. Chance (1990), 244 Mont. 215, 220, 797 P.2d 200, 203.
Therefore, the administrative rule clarifying § 49-2-101(16), MCA
(1983), has substantive effect here in determining whether
Martinell qualified as a handicapped person under 5 49-2-101(16),
MCA (1983).
MPC contends that Martinell's endometriosis and medication
induced depression did not satisfy the "substantially limited"
standard set forth in 24.9.801(3), ARM, reasoning that her
condition was at all times curable by means of a hysterectomy, and
that the curable character of her illness defies classification as
a handicap because her activities were limited only to the extent
she wished them to be limited. MPC further contends that her
choice of living with the symptoms rather than opting for the
surgical cure falls short of the condition being a substantial
limitation on a major life activity. Further, MPC maintains that
she had the remedy of abating her symptoms temporarily by becoming
pregnant as an alternative to a hysterectomy or drug therapy.
The District Court found these arguments "untenable" and the
alternatives suggested by MPC "unreasonable." The court concluded
that Martinell was "'handicapped'within the meaning of Montana law
in that the endometriosis coupled with medication induced
depression substantially limited a major life activity, namely, her
work" and that it qualified as handicapped under the statutory
definition as an "infirmity" caused by illness. MPC contends that
the District Court erred as a matter of law in concluding that
Martinell was a "handicapped person."
We review a district court's conclusions of law to determine
whether they are correct. Steer, Inc. v. Department of Revenue
(lggO), 245 Mont. 470, 474-75, 803 P.2d 601, 603. This issue is
one of first impression for this Court. In reviewing such cases to
determine whether the court correctly interpreted the applicable
law, we may properly look to interpretations under similar acts
from other jurisdictions. We have previously stated that
"reference to pertinent federal case law is both useful and
appropriate" in an action charging discrimination in which we
referred to Title VII of the Civil Rights Act of 1964. Snell v.
Montana-Dakota Utilities Co. (1982), 198 Mont. 56, 62, 643 P.2d
841, 844. See also, Martinez v. Yellowstone County Welfare Dept.
(1981), 192 Mont. 42, 47, 626 P.2d 242, 245. The Montana Human
Rights Act, Title 49, MCA, is closely modeled after Title VII of
the federal Civil Rights Act of 1964 and, more pertinent here, the
Rehabilitation Act of 1973, 29 U.S.C.A. §§ 701, et seq. (West 1985
& Supp. 1994), which relates to handicap discrimination.
The first element to be addressed in this issue is whether the
court correctly determined as a matter of law that Martinell's
illness--endometriosiscoupled withmedication induceddepression--
caused an "infirmity." Secondly, we review whether the court
correctly concluded that the "infirmity" substantially limited a
major life activity. From the materials submitted in this case by
amicus curiae Montana Human Rights Commission, it is apparent that
the Commission applies the definition of handicap from § 49-2-101,
MCA, g
-& the clarifying definition from 24.9.801(3), ARM, in
deciding questions as to what constitutes a handicap.
It is further evident that this specific issue apparently has
not been addressed by the Montana Human Rights Commission in any of
its appeals, although the Commission has ruled, and we agree, that
work is a "major life activity." "Major life activitiesN include
the ability to communicate, socialize, care for one's self, perform
manual tasks, walk, see, hear, speak, breathe, learn and work. 29
C.F.R. § 1613.702(c) (1993); 41 C.F.R. § 60-741, App. A (1993); 28
C.F.R. § 41.31(2) (1994) 34 C.F.R.
; § 104.3(j)(2)(ii) (1993) and
;
45 C.F.R. § 84.3( j ) ( 2 ) (ii) (1993).
The omm mission determines what constitutes a handicap using a
case-by-case method, as do the majority of state and federal
courts. See 3A A. Larson, Emulovment Discrimination § 106.14
(1994). Dr. Rauh testified that endometriosis is a "progressive
disease" which is known to cause numerous symptoms depending on
where in the body it is located and the structures to which it has
attached, but the three primary symptoms are pain, abnormal
bleeding and infertility. He testified that, at its worst, and if
left untreated, the disease can cause ovarian tumors which have a
tendency to become malignant. It can also result in appendicitis,
bowel and urinary tract obstructions and it can affect the central
nervous system with nerve damage caused by pain and signs of
meningitis. Dr. Rauh prescribed Danocrine and later Provera for
Martinell's symptoms. These drugs were effective in treating her
endometriosis symptoms but caused depression which could not be
treated by anti-depressant drugs or psychotherapy.
Under 5 49-2-101(16),MCA (1983), an illness or disease which
causes an "infirmity" constitutes a handicap. An "infirmity" is
defined as "an unsound or unhealthy state of body." Webster's New
Twentieth Century Dictionary 939 (2d ed. 1979). Clearly,
Martinell's disease meets the plain meaning of the word "infirmity"
by causing an unhealthy body state, not only directly, but also
secondarily from the medication used to treat her endometriosis.
We conclude the District Court correctly ruled that endometriosis
constituted an "infirmity" under § 49-2-101(16),MCA (1983).
Next, we address whether Martinell's condition also meets the
expanded clarification of "handicap" under the administrative rule
because it is not clearly evident that endometriosis can be
considered a physical handicap in each case, as its assortment of
symptoms is likely to affect each patient in a unique manner. The
District Court determined that Martinell could still perform her
job, although her ability to do her job was substantially limited
by pain which could be minimized by having a regular work schedule.
We are not the first court to consider whether the disease of
endometriosis constitutes a handicap. In determining that
Martinell was a handicapped individual, the District Court relied
on Illinois Bell Tel. Co. v. Human Rights Comm'n (Ill. App. 1989),
547 N.E.2d 499, appeal denied, 550 N.E.2d 556. Illinois Bell
addressed a situation strikingly similar to the case before us.
The plaintiff there also suffered from endometriosis and, like
Martinell, was treated with Danocrine. She worked in a unit for a
number of years where employees worked under a somewhat flexible
shift system which allowed her to schedule her working days so that
she minimized the number of sick days that she needed to take off.
She later transferred to another unit with similar work. That unit
did not permit the flexible scheduling and the employee's condition
resulted in many more sick days being taken, placing her job in
jeopardy due to excessive absenteeism. She was not allowed to
transfer to another unit where she could schedule around her
condition because the company job transfer policy did not allow
employees with excessive absenteeism to transfer.
The court interpreted Illinois' definition of "handicap" in
the Illinois Human Resource Act to include endometriosis as applied
to the plaintiff in Illinois Bell, distinguishing it from another
Illinois case which determined that dysmenorrhea (painful
menstruation) was not a handicap. The Illinois Act is
substantively similar to the Montana Human Rights Act for
discrimination based on handicap. Both the Illinois and Montana
Human Rights Commissions have construed handicap to include persons
whose conditions hinder them from engaging in "major life
activities" and to include employment as a major life activity.
Illinois Bell, 547 N.E.2d at 506.
In its analysis of whether the disease endometriosis
constituted a handicap, the Illinois court looked to the purpose of
the Illinois Human Resource Act and determined that the plain
language of the statute, together with the Illinois Human Rights
Commissionls rules on handicap discrimination in employment,
clearly included the disease of endometriosis. Illinois Bell, 547
N.E.2d at 506. Under the Illinois Human Resource Act, the term
"handicap" included physical and mental conditions which were
temporary and was not confined to conditions which are grave and
extreme in nature. The court interpreted the Illinois Act to
exclude conditions which are transitory and insubstantial, such as
influenza or a cold, and conditions that are disfiguring. Illinois
Bell, 547 N.E.2d at 506.
The court further stated that, to constitute a handicap, a
condition must be determinable by recognized diagnostic techniques.
Illinois Bell, 547 N.E.2d at 506. The Illinois Bell court
concluded that the Illinois Human Rights Commission correctly
construed the definition of "handicap" as applying to
endometriosis. The employee underwent a laparoscopy and the
disease of endometriosis was determined to be the cause of her
symptoms. In applying its rules on handicap discrimination, the
Commission concluded that the employee was in fact handicapped.
Illinois Bell, 547 N.E.2d at 506-07.
In affirming the Illinois Human Rights Commissionls
interpretation, the court concluded that the determination of
handicap must be made on a case-by-case basis and provided the
following caveat:
We are mindful of the plight of the large number of women
who are afflicted by severe menstrual pain, and we
recognize that all such conditions are not necessarily
physical handicaps, but must be determined from the facts
of each case. We are also aware of the intent of the
legislature to protect only those who are handicapped
within the meaning of the Act.
Illinois Bell, 547 N.E.2d at 507
In this case, where the Illinois law is similar to federal law
and Montana law, the District Court properly looked to Illinois law
in determining whether the disease of endometriosis constituted a
handicap. Illinois Bell is part of the nationwide body of case law
interpreting discrimination statutes. We agree with the Illinois
court's analysis and conclude that the District Court correctly
determined that Martinell's endometriosis, coupled with her
medication induced depression, substantially limited her
employment.
"Substantially limits," as applied in this case, relates to
the effect of the handicap on employment. A person is
substantially limited if he or she experiences difficulty in
securing, retaining, or advancing in employment. 41 C.F.R. 5 60-
741 App. A (1993). The record clearly supports the District
Court's finding that Martinell's endometriosis substantially
limited her work as evidenced by her absenteeism related to the
condition. The record indicates that she not only had difficulty
in retaining employment, but that she also had difficulty in
advancing in employment.
During her employment with MPC, Martinell applied for, but was
not given, the position of Chemical Lab Supervisor as well as other
positions within MPC. The lab supervisor position was first filled
with a male employee trained by Martinell who subsequently vacated
that position after a short time. The position opening was then
left open until after Martinell terminated her employment with MPC.
It had remained unfilled for some time and Martinell testified she
was told that a man had to be placed in that position. She
provided testimony indicating that she had trained new employees as
lab technicians and had done other work which a lab supervisor
would ordinarily perform.
We conclude that the facts of this case support the District
Court's conclusion that endometriosis was a handicap which
substantially limited Martinell's employment, a major life
activity. We further conclude that a handicap determination based
on illness under the Montana Human Rights Act is properly made
using a case-by-case analysis.
We hold the District Court correctly classified Martinell as
a "handicapped" person under the Montana Human Rights Act
ISSUE I1
Did the District Court err in concluding that the pre-1991
version of § 49-2-303(1)(a), MCA, imposed a duty of reasonable
accommodation on Montana Power Company?
MPC contends that even if Martinell qualifies as a handicapped
person, an employer such as MPC had no duty to accommodate her
handicap under the law in effect in 1984. MPC relies on the
express language of § 49-2-303(1)(a), MCA (1983), which provided:
Discrimination in employment. (1) It is an unlawful
discriminatory practice for:
(a) an employer to refuse employment to a person, to
bar him from employment, or to discriminate against him
in compensation or in a term, condition, or privilege of
employment because of his race, creed, religion, color,
or national origin or because of his age, physical or
mental handicap, marital status, or sex when the
reasonable demands of the position do not require an age,
physical or mental handicap, marital status, or sex
distinction;
(2) The exceptions permitted in subsection (1)
based on bona fide occupational qualifications shall be
strictly construed.
MPC argues that § 1-2-101,MCA, which speaks to rhe role of a judge
construing statutes, is a limitation on a district court's right
to read more into a statute than is expressed by the legislature.
MPC's argument centers on making a determination of legislative
intent from the plain meaning of the words used. MPC contends that
the District Court cannot look to legislative intent when the
express terms of the statute are clear and unambiguous. It insists
that the pre-1991 text . of § 49-2-303(1)(a), MCA, contained no
reference to accommodating a handicapped person and, therefore,
none should be implied because employers had no notice of that
interpretation. MPC contends employers had no duty to accommodate
handicapped persons prior to 1991 in any fashion.
Martinell counters that the duty of reasonable accommodation
was required long before the 1991 addition to § 49-2-101(15),MCA,
and that § 49-2-303(1)(a), MCA, always required reasonable
accommodation. Section 49-2-303(1)(a), MCA, has remained
essentially the same since 1983 except to change the text to gender
neutral language and to replace the term "handicap" with
"disability."
Martinell further contends that because it was proper to look
18
to case law from federal and other state courts for resolution of
cases under the Montana Human Rights Act prior to the 1991
legislative changes, the Montana Human Rights Act, as it existed
prior to these changes, imposed an implied duty upon employers to
make reasonable accommodation for their handicapped employees. She
emphasizes the several administrative rules which provide that the
Commissionls rules are to be liberally interpreted to achieve
remedial goals and assure enforcement and protection of the rights
secured by them. See 24.9.201, - -301,and - .4O2, ARM. She further
stresses the strict construction and narrow interpretation to be
given to those reasonable demands of employment which are allowed
as "bona fide occupational qualifications. 24.9.402(2), and -
.1404, ARM. Although we are not concerned with bona fide
occupational qualifications here, exemptions may exist for them
where the physical requirements of a physically handicapped person
would force an extraordinary financial hardship upon an employer.
24.9.1404, ARM.
The District Court's first conclusion in this case was that
the former law, in effect until October 1, 1992, required nothing
more than treating all employees in the same manner. However, the
court reversed itself after considering Martinell's motion and
ruled that a duty of reasonable accommodation was implied by former
law and had not been newly imposed by the legislature.
The 1991 amendment changed the definition of physical and
mental handicap in 5 49-2-101(16), MCA, renumbering it as § 49-2-
101(15), MCA, and changed the substance to read as follows:
(a) "Physical or mental handicap" means:
(i) a physical or mental impairment that
substantially limits one or more of a person's major life
activities;
(ii) a record of such an impairment; or
(iii) a condition regarded as such an impairment.
(b) Discrimination based on, because of, on the
basis of, or on the grounds of physical or mental
handicap includes the failure to make reasonable
accommodations that are required bv an otherwise
qualified person who has a phvsical or mental handicap.
Any accommodation that would require an undue hardship or
that would endanger the health or safety of any person is
not a reasonable accommodation. (Emphasis supplied.)
The 1993 Montana Legislature subsequently replaced the word
"handicap" with "disability."
Under § 49-2-lOl(15)(b), MCA (lggl), reasonable accommodation
on the part of the employer is required where the employee is "an
otherwise qualified person." There is no question here that
Martinell was otherwise qualified to perform her job requirements.
At all times relevant to this case, she performed her job duties in
a manner which met or exceeded MPC's requirements of a Chemical Lab
Technician. In addition, her doctor testified that she was capable
of performing the technical aspects of her job.
Under MPC's interpretation of the pre-1991 provisions of the
Montana Human Rights Act, the Act protected only those handicapped
persons whose handicap had no effect on their employment. Under
that interpretation, a person capable of performing a particular
job but who is forced to use a wheelchair would be protected if the
job did not present access limitations for the person confined to
the wheelchair. However, if the employment location did not
provide access for persons with wheelchairs, the employer would not
be required to provide any sort of accommodation, however minimal,
even though the person otherwise had the mental acuity and physical
ability to perform all aspects of the job. We conclude that the
Montana Human Rights Act was intended to encourage full employment
of handicapped persons, including handicapped persons whose
handicap has some effect on employment. Clearly, that is
consistent with the purpose of anti-discrimination legislation,
which is remedial in nature and intended to assure enforcement and
protection of the rights secured by the Montana Human Rights Act.
In order to give effect to this goal, the Montana Human Rights
Commission gives broad coverage and inclusive interpretation to the
human rights statutes and rules. See 24.9.402, ARM.
Notwithstanding the changes made by the 1991 Montana Legislature,
we conclude it was appropriate to require a reasonable
accommodation by employers under pre-1991 law where federal anti-
discrimination laws provided protection to the employee.
Martinell notes that federal courts interpreting Title VII and
administrative regulations have identified four types of
discrimination that a handicapped person may face in employment:
(1) intentional discrimination based on social bias; (2) neutral
standards with a disparate impact; (3) surmountable impairment
barriers; and (4) insurmountable impairment barriers. &, e.s.,
Prewitt v. United States Postal Serv. (5th Cir. 1981), 662 F.2d
292, 305. She claims that she faced obstacles during her
employment with MPC which demonstrate discrimination based on
surmountable impairment barriers. Therefore, our discussion
focuses on surmountable barriers required to reasonably accommodate
a handicapped person
MPC denied Martinell's request for a shift change and regular
hours and continued to treat all employees alike. Martinell
contends that her request for a change in shift scheduling was a
surmountable barrier to her continued employment which could have
been reasonably accommodated by MPC. She further contends that the
requirement for a reasonable accommodation is inherent in
legislation prohibiting physical handicap discrimination, whether
or not the legislation expressly requires such accommodation,
citing Holland v. Boeing Co. (Wash. 1978), 583 P.2d 621, 623. The
District Court here adopted the following rationale from Holland:
In 1973, the legislature amended the law against
discrimination . . . to include a prohibition against
discrimination in employment because of physical, mental
or sensory handicaps. It recognized that the disabled,
like many minority groups, face serious problems in
seeking employment. . . . Legislation dealing with
equality of sex or race was premised on the belief that
there were no inherent differences between the general
public and those persons in the suspect class. The
guarantee of equal employment opportunities for the
physically handicapped is far more complex.
The physically disabled employee is clearly
different from the nonhandicapped employee by virtue of
the disability. But the difference is a disadvantage
only when the work environment fails to take into account
the unique characteristics of the handicapped person. .
. . Identical treatment may be a source of discrimination
in the case of the handicapped, whereas different
treatment may eliminate discrimination against the
handicapped and open the door to employment
opportunities.
. . . When, in 1973, the legislature chose to make
this policy applicable to discrimination against the
handicapped, we believe it is clear it mandated positive
steps be taken. An interpretation to the contrary would
not work to eliminate discrimination. It would instead
maintain the status quo wherein work environments and job
functions are constructed in such a way that handicaps
are often intensified because some employees are not
physically identical to the "ideal employee." (Emphasis
is original.)
Other state courts have implied a reasonable accommodation
requirement as well. For example, the Iowa Supreme Court implied
a duty to reasonably accommodate, stating that,
Discrimination against the disabled differs from other
types of discrimination in that other types, such as
racial, religious, or sex discrimination, usually bear no
relationship to the individual's ability to perform a
job. Consequently, it is necessary to provide a
requirement of reasonable accommodation in order to
eliminate discrimination against the disabled.
Cerro Gordo County Care Facility v. Iowa Civil Rights Commission
(Iowa 1987), 401 N.W.2d 192, 196-97, citinq Holland v. Boeing Co.,
(Wash. 1978), 583 P.2d 621, 625.
The majority of jurisdictions addressing this issue are in
accord with Cerro Gordo and Holland. &, a,
Jenks v. AVCO
Corp. (Pa. Super. 1985), 490 A.2d 912; Brand v. Florida Power Corp.
(Fla.App. 1994), 633 So.2d 504; Carr v. General Motors Corp. (Mich.
1986), 389 N.W.2d 686; Coffman v. West Virginia Bd. of Regents (W.
Va. 1988), 386 S.E.2d 1; and Montgomery Ward & Co. v. Bureau of
Labor (Or. 1977), 570 P.2d 76.
As amicus curiae, the Montana Human Rights Commission filed a
brief in this appeal generally supporting the arguments made by
Martinell for this issue. The Commission specifically contends
that MPC ' s argument is inconsistent with the purpose of the Montana
Human Rights Act, the Commission's longstanding interpretation of
the law as it existed before the 1991 amendment, and the
interpretations of similar laws by other state and federal courts.
It further contends that the concept of reasonably accommodating
handicapped persons is necessary to give meaning to § 49-2-
303 (1)(a), MCA (1983).
The Montana Human Rights Commission states that the Act was
amended in 1991 to incorporate the definition of handicap used in
the Rehabilitation Act of 1973, 29 U . S . C . A . §§ 706 ( 8 ) B) (1993);
and 41 C . F . R . § 60-741.2 (1993) . Both Martinell and the Commission
also contend that the legislative history of the 1991 amendments
indicates that they were intended to be remedial. Although we do
not include a discussion on the legislative history of the 1991
amendments, we note that our conclusion in this case is further
supported by that legislative history, which identifies the
legislation as clarifying in nature in order to conform to federal
law and prior decisions of the Montana Human Rights Commission,
The Montana Human Rights Commission provided the Court with
opinions which it has issued, one in which counsel for MPC appeared
before the Commission on behalf of Western Energy Company, MPC's
wholly-owned subsidiary (Edwards v. Western Energy Company (1990),
Case No. A H p E 8 6 - 2 8 6 5 ) . The Commission asserts that these cases are
indicative of the manner in which it has applied the reasonable
accommodation requirement consistentlyto contested cases involving
allegations of handicap discrimination, and further indicating that
the concept of accommodation was fully developed well before
Martinell sought an accommodation from MPC for her handicap. These
cases include a railway company required to make reasonable
accommodation for a male clerk who could not perform heavy lifting,
a deaf painter who was otherwise qualified to perform his job
because he was able to overcome communication difficulties required
for the job, a person of short stature who was not entitled to
accommodation in the particular situation because of federal safety
regulations, and a mill sweeper who suffered acrophobia and thus
could not perform all functions of the job who was offered a
reasonable accommodation of unpaid time off from the job during
such times.
The Commission further states that a uniform body of case law
has developed nationwide, leading to consistent opportunities for
handicapped employees across the country, and that it has adopted
the approach demonstrated in these cases in its quasi-judicial
adjudications. It further notes that this Court has taken a
similar approach in interpreting other clauses of the Montana Human
Rights Act. See, e.q., Johnson v. Bozeman School Dist. No. 7
(1987),226 Mont. 134, 734 P.2d 209 (McDonnell Doualas test used in
case alleging employment discrimination based on marital status
pursuant to school district's anti-nepotism policy) ; and Snell, 643
P.2d 841 (allegations of racial harassment addressed with federal
case law arising under Title VII).
In addition, the Commission has informed the Court that it has
determined that certain practices were discriminatory based on the
employer's failure to make an individual assessment of a person's
ability to perform the duties of a specific position, including an
accommodation assessment. Moreover, the cases provided by the
Commission demonstrate its consistent application of the
accommodation requirement for more than ten years prior to the 1991
amendments in cases involving handicapped workers.
MPC's argument that it had no notice under pre-1991 statutes
that it was required to make reasonable accommodation for
handicapped persons is specious in light of the fact that MPC
addressed this topic in its Affirmative Action Program stating,
It is the policy of The Montana Power Company to provide
equal opportunity to all qualified handicapped
individuals who are employees or applicants for
employment. Positive action shall be taken to ensure the
fulfillment of this Policy in areas such as:
C. Treatment during employment . . .
This Policy is consistent with the requirements and
objectives set forth by the Vocational Rehabilitation Act
of 1973 and applicable state laws.
MPC's Affirmative Action Program also includes the following
definitions:
"Handicapped individual" means any person who (1) has a
physical or mental impairment which substantially limits
one or more of such person's major life activities; (2)
has a record of such impairment; or (3) is regarded as
having such an impairment. For purposes of this Part, a
handicapped individual is "substantially limitedn if he
or she is likely to experience difficulty in securing,
retaining, or advancing in employment because of a
handicap.
"Qualified handicapped individual" means a handicapped
individual who is capable of performing a particular job,
with reasonable accommodation to his or her handicap.
(Emphasis supplied.)
MPC's Chief Executive signed the Affirmative Action Program
containing the above statements on August 30, 1982
We conclude that the changes made by the 1991 Montana
Legislature were not intended to and did not make any substantive
changes in the law relating to discrimination on the basis of
handicap. The 1991 amendments had the effect of clarifying the
Montana Human Rights Act to more closely conform with comparable
federal laws and with the consistent application of such laws by
the Montana Human Rights Commission.
We hold the District Court correctly held that the pre-1991
version of 5 49-2-303(1)(a), MCA, imposed a duty of reasonable
accommodation on Montana Power Company
ISSUE I11
Did the District Court err in concluding that Bonnie Martinell
had been constructively discharged by Montana Power Company?
In analyzing constructive discharge in this case, we must view
MPC's actions in light of its duty to make a reasonable
accommodation for Martinell's handicap. Thus, the questions become
whether MPC's conduct was defensible in terms of its duty to
reasonably accommodate Martinell's handicap or whether the
requested accommodation would have imposed an undue hardship on
MPC. Our analysis here involves both conclusions of law and
findings of fact. Legal conclusions are reviewed as stated
previously to determine whether they are correct. This Court will
affirm a district court's factual findings unless they are clearly
erroneous. Interstate Prod. Credit Ass'n v. DeSaye (1991), 250
Mont. 320, 322, 820 P.2d 1285, 1287.
In DeSave, we adopted the following three-part test to
determine if findings are clearly erroneous: (1) first, the Court
27
will review the record to see if the findings are supported by
substantial evidence; (2) if the findings are supported by
substantial evidence, we will determine if the trial court has
misapprehended the effect of the evidence; and (3) if both
substantial evidence exists and the effect of the evidence has not
been misapprehended, whether a review of the record leaves the
Court with the definite and firm conviction that a mistake has been
committed. DeSave, 820 P.2d at 1287.
We previously referred to 24.9.1404, ARM, and § 49-2-
101 (15)(b), MCA (1991), as authority for certain exemptions to the
employer's duty of accommodation and the strict construction to be
allowed a claim of bona fide occupational qualification. The
present law allows exceptions from the reasonable accommodation
requirement in two distinct situations. Accommodations which would
result in extraordinary financial hardship upon an employer,
according to 24.9.1404, ARM, are appropriate in cases where certain
classes of employees are foreclosed from certain employment
opportunities. According to § 49-2-101 ,
(15)(b) MCA, accommodations
which would require an undue hardship or that would endanger the
health or safety of any person are exempted. This is consistent
with the federal courts' application of the Rehabilitation Act of
1973, 29 U.S.C.A. §§ 701, et seq., which allows an exception from
the accommodation requirement where it would result in undue
hardship.
The United States Supreme Court has held that the refusal to
make accommodation for a handicapped person may be actual
discrimination because of the handicap. Southeastern Community
College v. Davis (l979), 442 U.S. 397, 412-13, 99 S.Ct. 2361, 2370,
60 L.Ed.2d 980, 992. In the employment setting, other courts have
held that the doctrine of constructive discharge may support a
discrimination action if the employee quits to avoid a health-
threatening environment. -, e.s., Miller v. AT&T Network Systems
(D. Or. 1989), 722 F. Supp. 633, 639.
MPC relies on this Court's opinion in Snell, 643 P.2d at 846,
for its assertion that discrimination by itself is not constructive
discharge; rather, the court must first look to the totality of the
circumstances in a discrimination case before finding constructive
discharge. In Snell, 643 P.2d at 846, we cited Nolan v. Cleland
(N.D. Cal. 1979), 482 F. Supp. 668, 672, which stated as follows:
A determination of constructive discharse depends on the
totality of circumstances, and must be supported by more
than an employee s subjective judgment that working
conditions are intolerable. (Emphasis supplied.)
We also noted that a finding of racial harassment would not
automatically mandate a finding of constructive discharge and that
Nolan had found that there was no clear standard for constructive
discharge in a Title VII case. Snell, 643 P.2d at 846.
Snell, a Title VII racial discrimination case, does in fact
support the use of a "totality of the circumstances" analysis.
However, MPC further cites Finstad v. Montana Power Co. (1990),241
Mont. 10, 785 P.2d 1372; and Frigon v. Morrison-Maierle, Inc.
(1988), 233 Mont. 113, 760 P.2d 57, for this argument. Neither
case used the totality of the circumstances test. Both Frison and
Finstad addressed issues of constructive discharge in the context
29
of the covenant of good faith and fair dealing with the question
phrased as whether the employer had rendered the working conditions
so oppressive that resignation was the employee's only reasonable
alternative. Finstad, 785 P.2d at 1382. Friqon, 760 P.2d at 61,
specifically stated that the application of a test using a totality
of the circumstances in wrongful discharge cases had not been
recognized beyond Title VII discrimination cases such as Snell.
Friqon and Finstad are not discrimination cases and, therefore, the
standard applied is not to be confused with the standard used in
discrimination cases under the Montana Human Rights Act. We
conclude that the totality of the circumstances test is to be used
for determining constructive discharge in handicap discrimination
cases.
Although the District Court here concluded that a constructive
discharge had occurred based solely on MPC's refusal to consider
Martinell's request for accommodation, we emphasize that every case
of failure to consider a request for an accommodation may not
constitute discrimination as a matter of law. Nonetheless, in this
case the record overwhelmingly supports the District Court's
findings and conclusions and the ultimate conclusion that a
constructive discharge occurred based on a totality of the
circumstances, including the failure to consider an accommodation.
As discussed below, we conclude that the totality of the
circumstances leading up to Martinell's resignation supports the
conclusion that she was constructively discharged.
MPC contends that Martinell had many reasonable alternatives
available to her other than resignation. These alternatives
included the following: (1) paid sick Leave and personal leave for
illness-related absences, (2) an extended leave of absence, (3)
transfer to another job within MPC or elsewhere, ( 4 ) pregnancy, and
(5) hysterectomy. These were the same arguments made to the
District Court which the court characterized as unreasonable. MPC
further contends that there was no action on its part, other than
the refusal to grant Martinell's request for a shift change, to
support the District Court's conclusion of constructive discharge.
We have stated that such action can in some cases constitute a
constructive discharge, but the analysis must be made by
considering the unique facts of each case.
The District Court addressed each of MPC's posited
alternatives and concluded all were unreasonable under the
circumstances present in this case. Martinell had missed numerous
days of work due to her endornetriosis and medication induced
depression, despite the fact that her endometriosis pain was
partially controlled by taking Danocrine or Provera. Dr. Rauh and
Dr. Peterson had opined that she would benefit from normal sleep
patterns and regular hours which would have been possible if MPC
had granted her scheduling request. Dr. Rauhgstestimony indicates
that Martinell could have decreased her absenteeism with a likely
result of lessening her symptoms from the endometriosis. This
could have been accomplished with little or no additional cost to
MPC .
The record contains evidence of several instances where MPC
accommodated employee problems by allowing employeefs to work
regular day shifts, including one employee's marital problems,
health problems and Martinell's own first pregnancy. Moreover,
Martinell's physician advised MPC that her health could have been
positively affected by regular hours and the progression of her
endometriosis could have been slowed, or, at the least, could have
presented less severe symptoms.
However, Martinell's personnel file disclosed a letter
indicating MPC was on the verge of terminating her due to excessive
absenteeism. Martinell further testified that a prior request for
a leave of absence had been thrown in the trash by her supervisor.
She was told that she could not take further time off without an
excuse from her doctor. Her doctor had already notified MPC that
she had endometriosis which was negatively affected by her work
schedule and her supervisor was familiar with her past history of
absence caused by her illness. Clearly, there was pressure not to
be absent again by the treatment accorded previous absences. When
Martinell told Walker, her supervisor, that her doctor was gone
until the end of August on the occasion of her last absence in mid-
August of 1984, he refused to allow her to return to work without
an excuse even when she told him she could not get one for
approximately two weeks. When she went over his head to the
highest-ranking official of MPC in Colstrip and received permission
to return to work without an excuse, Walker refused to speak to her
on her return to work. Obviously, the fact that she had been paid
for sick and personal leave in the past did not guarantee that she
could continue to use these alternatives. The evidence indicates
the opposite.
A transfer to another job also was not feasible here.
Martinell had applied for numerous positions within MPC and Western
Energy Company without success. Despite the fact that she had the
most seniority in the Chemical Lab and had trained other employees
on the job, she was not offered the job of Chemical Lab Supervisor.
The record indicates that she was qualified for this position.
This position also would have allowed her to work regular day
shifts. Thus, it does not appear that another job within MPC was
a reasonable alternative to terminating employment.
As specifically pointed out by the District Court, pregnancy
and hysterectomywere also unreasonable alternatives for Martinell.
This argument does not merit further analysis.
MPCTs argument that there were reasonable alternatives is
contradicted by the overwhelming evidence that there was no such
alternative. We conclude the District Court's determination that
there was no reasonable alternative is supported by substantial
evidence in the record.
We further conclude that the District Court correctly
determined that MPC could have accommodated Martinell's request
without undue hardship. Under current Montana law, handicap
discrimination cases are further analyzed according to the
statutory standard set forth in § 49-2-lOl(15)(b), MCA; that is,
the analysis to be used is based on whether the requested
accommodation would cause undue hardship to the employer or
endanger the health or safety of any person. The District Court's
analysis of constructive discharge under pre-1991 law appropriately
included a determination of undue hardship. MPC does not argue
that accommodating Martinell's request would have created any undue
hardship. Instead, it contends that accommodation would have been
unfair to other employees and would have disrupted the operations
of the Colstrip plant. MPC did not introduce factual evidence
during the trial to support these statements or to show they
supported a finding of undue hardship
In its initial decision which held MPC had no duty to
accommodate Martinell's handicap, the District Court noted that
this Court had not addressed the issue of reasonable accommodation
under pre-1991 law, and made findings in the event that its
interpretation was incorrect. The court stated:
26. Not seeing the need to reasonably accommodate,
MPC failed to reasonably accommodate Bonnie Martinell's
handicap. The Court specificallv finds that MPC could
have placed Bonnie Martinell on straiqht dav shifts
without undue hardship. Only a short time before, the
laboratory had been run on straight days, with overtime
as needed. It wasn't until the lab personnel themselves
requested a shift work that MPC implemented a shift
policy. At the very least, MPC could have inquired
whether the other workers objected and allowed Bonnie
Martinell to work the day shifts of workers such as Becky
Dodd who offered to give her day shift to Bonnie
Martinell. MPC did not do what it could to reasonably
accommodate Bonnie Martinell's handicapped condition. .
. .
27. If MPC had a duty of reasonable accommodation,
the Court would have conclude[dl that the resulting
discrimination placed Bonnie Martinell in an untenable
situation, and, although there were other possible
alternatives available to Bonnie Martinell, none of these
alternatives would be considered reasonable by the Court.
If MPC had a duty of reasonable accommodation, the Court
would have found that she was constructively discharged
by reason of the discrimination and that she had no
reasonable alternative other than terminating her
employment. . . .
The duty to accommodate may include restructuring the job in
terms of work scheduling. 29 C.F.R. § 1613.704(b) (1993); 34
C.F.R. § 104.12 (b)(2) (1993) and Illinois Bell, 547 N.E.2d at 509.
;
Martinell knew her employment was in jeopardy because of her
absences. She periodically missed work because stress caused by
working long, irregular hours caused back pain. Evidence was
presented that this situation could have been improved if MPC had
granted the accommodation she had requested.
Evidence was also presented that Becky Dodd, a co-worker in
the lab, had offered to change shifts with Martinell and that MPC
declined to consider this offer. No evidence was presented to
indicate the two other employees in the lab were ever consulted
about shift changes and no evidence was submitted to establish
their preference for shifts. However, prior to 1983 when rotating
shifts began, all lab employees worked day shifts, with the result
that they all worked a lot of overtime. In an effort to cut down
on overtime, the employees requested a rotational scheduling plan
so that they would not be required to work so much overtime between
the hours of 4:30 p.m. and 8:00 a.m. MPC granted this request in
1983, but did not implement any of the shift schedules proposed by
the employees.
Clearly, there is substantial evidence in the record to
support the District Court's findings and conclusions in this case.
Substantial evidence is evidence that a reasonable mind might
accept as adequate to support a conclusion; it consists of more
than a scintilla of evidence and it may be somewhat less than a
preponderance of the evidence. Barrett v. ASARCO, Inc. (1990), 245
Mont. 196, 200, 799 P.2d 1078, 1080. We conclude, according to the
DeSave test, substantial evidence supports the District Court's
findings and the effect of the evidence has not been
misapprehended. Moreover, after our review of the evidence, the
Court is not left with the definite and firm conviction that a
mistake has been made. We conclude these and other findings of the
District Court, as included in the record and partially set forth
above, support the conclusion that Martinell was constructively
discharged because of her handicap based on a totality of the
circumstances in this case. We further conclude the District
Court's finding that MPC could have accommodated Martinell's
handicap without undue hardship is supported by substantial
evidence as well.
We hold the District Court did not err in concluding that MPC
had constructively discharged Martinell by failing to accommodate
her handicap in this case
ISSUE IV
Did the District Court err by awarding $467,364 in damages to
Bonnie Martinell?
MPC contends that the District Court erred, as a matter of
law, in awarding Martinell the sum of $467,364 for three reasons:
(1) Martinell did not diligently pursue other employment after she
resigned from MPC; (2) the damages awarded, particularly the front
pay damages, were entirely speculative; and (3) Martinell did not
36
demonstrate that reinstatement was an inappropriate remedy. The
amount awarded represents $191,481 in past loss of income and
$275,883 for future loss of income directly caused by her
termination from employment because of her illness. We address
each of these assertions separately. The standard of review used
by this Court when reviewing an award of damages is whether the
court abused its discretion. Edington v. Creek Oil Co. (1984), 213
Mont. 112, 127, 690 P.2d 970, 978. Further, we have said that a
defendant should not escape liability because the amount of damage
cannot be proved with precision. Edinaton, 690 P.2d at 978. The
court's findings are reviewed under the DeSave test previously set
forth in this opinion.
A. Mitisation of Damases
MPC's first argument focuses on Martinell's efforts to obtain
employment following her resignation on September 6, 1984. The
District Court made the following finding of fact:
17. Bonnie Martinell made reasonable efforts to
mitigate her damages and was not required to reapply for
employment to MPC or its subsidiaries given the
circumstances of her termination.
MPC contends that the trial record does not support this finding
because the only gainful employment on Martinell's part from the
date of her resignation--September 6 , 1984, until the date of
trial, November 9, 1990--was a temporary position with the
Bitterroot National Forest in the summer of 1989. Martinell earned
$3,602 working in this position.
MPC further contends that Martinell's efforts in obtaining
employment do not establish diligence on her part, particularly
37
where she freely admitted to not searching for employment for
extended periods of time. It relies on Dawson v. Billings Gazette
(1986), 223 Mont. 415, 726 P.2d 826, as authority for an award of
zero damages to Martinell because, according to MPC, there is
clearly no evidence in the record to show that Martinell made
reasonable efforts to mitigate her damages.
Under Montana law, a terminated employee has a duty to
exercise ordinary diligence to procure other employment. Ordinary
diligence does not require a terminated employee to search for
employment in another line of work or to move to a different
locality. Dawson, 726 P.2d at 828. MPC contends that the facts in
Dawson are exactly the same as here because Martinell applied for
only four jobs during the period of July 1988 through August 1989.
In Dawson, the Court upheld a juryf award of zero damages to an
s
employee who had only applied to four potential employers and who
had restricted the scope of his job search. MPC claims the
circumstances are similar here as Martinell had other periods of
time when she did not search enthusiastically for jobs. These
times include the times when she was pregnant and recuperating from
surgery.
Dawson is an inapposite analogy in this case. There, the
evidence presented showed that the plaintiff had limited his job
search unreasonably and that it was "very likely" that he could
have obtained employment if he had vigorously searched for it. In
Dawson, there was conflicting evidence concerning damages and the
record indicated that the jury could have found that Dawson
suffered no damages. Dawson, 726 P.2d at 828. That is not the
case here.
MPC's contention that Martinell could have applied for any of
the 643 position openings with MPC and its subsidiaries during the
time prior to trial is unconvincing. MPC provided testimony that
643 openings were available before the time of trial and argues
that "several hundred openings were available to Mrs. Martinell if
she had only applied for employment with Western Energy or MPC" and
that her failure to apply for any of these openings establishes
that she did not exercise ordinary diligence in attempting to
procure employment. Clearly, the evidence as reviewed in Issue I11
above demonstrates the opposite--that the working climate leading
up to her resignation was not encouraging for future employment
opportunities with MPC, particularly with a letter in her file in
which Don Berube wrote that she was not recommended for rehire.
Martinell has a Bachelor of Science degree from Montana State
University in Agricultural and Animal Science. After obtaining
this degree, she worked for MHD Research Center in Butte as an
Environmental Coordinator. Her job duties included working as a
consultant to MPC on its environmental impact for Colstrip. Her
husband transferred to Colstrip and Martinell obtained employment
with Western Energy Company at its Rosebud Mine near Colstrip as an
Environment and Range Technician. In that position, she did air
quality data collection and analysis, range data collection and
analysis, range seed collection and transplanting for reclamation.
Following this position, Martinell transferred to MPC1s Chemical
Lab in April of 1981. Clearly, Martinell's specialized training
and experience in the scientific field are not the sort of general
qualifications likely to qualify her for the "hundreds of openings"
available, as argued by MPC.
Nonetheless, Martinell providedtestimony that she had applied
for and been rejected by MPC and Western Energy for numerous jobs
in her field prior to her termination. She provided testimony that
she applied for many jobs in the Colstrip area, both within and
outside of her field following her 1984 resignation. She testified
that she applied for a great many positions and sent out resumes to
numerous employers both in and out of Montana, including several
power plants out of state, in an unsuccessful attempt to obtain
employment in her field as a lab technician. Her only employment
was with MPC and its subsidiaries and her personnel record there
included the letter recommending she not be rehired. Upon her
return to Colstrip in October of 1990 when her husband was rehired
by MPC, she applied for positions in other labs in the area
surrounding Colstrip, including Miles City and Forsyth. She also
applied for some positions not in her field, such as a position in
a flower shop.
Although her job search had proved unsuccessful up to the time
of trial, there is substantial evidence as set forth above to
indicate that Martinell exercised at least ordinary diligence in
searching for employment after September 6, 1984, the date of her
termination of employment with MPC.
According to E.C.A. Envtl. Mgmt. Services, Inc. v. Toenyes
(1984), 208 Mont. 336, 350, 679 P.2d 213, 220, and numerous federal
decisions interpreting Title VII, MPC has the burden of proving
Martinell's failure to mitigate as an affirmative defense. Title
VII cases establish that the general rule is that the employer
charged with discrimination under Title VII can toll the continuing
accrual of damages by offering the claimant a job without
conditions attached. If the claimant then rejects the offer of
employment, damages cease to accrue. Ford Motor Co. v. E.E.O.C.
(l982), 458 U.S. 219, 241, 102 S.Ct. 3057, 3070, 73 L.Ed.2d 721,
739. The Ford Motor Co. decision has been widely adopted in
discrimination and wrongful termination cases because it is
consistent with policies of encouraging defendants to make
curative, unconditional offers of employment, thereby voluntarily
complying with applicable law in order to end discrimination and
more quickly close litigation. Boehm v. American Broadcasting Co.
(9th Cir. 1991), 929 F.2d 482, 485; and Holmes v. Marriott Corp.
(S.D. Iowa 1993), 831 F. Supp. 691, 709. MPC could have
unconditionally offered employment to Martinell at any time during
these proceedings to toll her damages. It chose not to do so.
Further, Martinell provided expert testimony by a qualified
economist to support the award of back pay. We conclude that MPC
did not meet its burden in this case. We further conclude that
Martinell provided substantial evidence to support the court's
finding that she made reasonable efforts to obtain employment and
that back pay in the amount of $191,481 was appropriate.
B. Front Pay Damaqes
MPC's second argument concerning damages is that Martinell did
not establish that future damages were reasonably certain to occur
and the award of $275,883 in front pay is speculative. MPC further
contends that the record does not contain credible evidence that
Martinell would incur future loss of income in that amount. This
amount, as testified to by Martinell's expert, did not include
punitive damages or damages for emotional distress.
The record does establish that future employment with MPC was
highly unlikely for Martinell, particularly as MPC had not offered
employment to toll Martinell's damages. Martinell also presented
evidence that she would likely remain in the Colstrip area because
her husband works for MPC and he will likely continue that
employment. She established by unrebutted expert testimony--from
an economist experienced in the field of forecasting future income-
-that the rate of pay she likely would have earned at MPC, had she
continued working there for the remainder of her working life, was
substantially higher than that of other lab technicians with
similar qualifications in Montana. The amount of front pay,
$275,883, was the estimate provided by Martinell's expert to equal
the difference between the average future earnings of lab
technicians in Montana working for other employers and future
earnings of MPC1s lab technicians, reduced to present value. In
determining this amount, Martinell's expert relied on statistics
provided through the Montana Department of Labor and Industry.
Section 27-1-203,MCA, allows a trier of fact to award damages
that are certain to result in the future. We have held that future
damages need only be reasonably certain and not absolutely certain,
and of necessity are the subject of some degree of conjecture and
speculation. Kerr v. Gibson Products Co. of Bozeman, Inc. (1989),
226 Mont. 69, 74, 733 P.2d 1292, 1295. The district courts have
discretion whether to award any future damages and also have
discretion in the amount of such damages. Swanson v. St. John's
Lutheran Hosp. (1980), 189 Mont. 259, 265, 615 P.2d 883, 886. We
conclude the District Court did not abuse its discretion in
awarding future damages and the amount of damages is supported by
substantial credible evidence in the record.
C. Reinstatement
MPC contends that the evidence is sufficient to establish that
reinstatement was a viable option in lieu of front pay. Both
parties cite Hearing Aid Inst. v. Rasmussen (1993), 258 Mont. 367,
377-78, 852 P.2d 628, 635, as authority for the principle that
front pay may be awarded in lieu of reinstatement when the district
court has determined that antagonism exists between the parties.
MPC argues that the District Court failed to make specific findings
of fact regarding hostility or antagonism between Martinell and
MPC. Martinell contends that the antagonism between the parties is
evident from the record and the damage award will be upheld if the
Court concludes that the trial judge's findings and conclusions are
clear to this Court. Further, she contends that a failure to state
them in certain format is not substantial error.
We conclude that the evidence submitted to the court during
the trial supports a finding that there was indeed antagonism
between the parties. Nonetheless, the District Court entered the
following findings and conclusions:
14. A high degree of tension existed between Bonnie
Martinell and her immediate supervisor relating to Bonnie
Martinell's medical condition, her sick leave and her
requests for accommodation.
17. Bonnie Martinell . . . was not required to
reapply for employment to MPC or its subsidiaries given
the circumstances of her termination.
27. . . . The Court also finds that the work
climate and the continued tension between Bonnie
Martinell and her immediate supervisors was such, that
when combined with the chronic pain and the "final"
decision of MPC regarding the shift change made anything
short of termination unreasonable. MPC also suggests
that there was a standing offer for a leave of absence,
yet [their] own internal memoranda confirms Bonnie
Martinell's assessment that if she missed any more work,
she would be fired. . . .
Not only does the record support these findings, but it further
supports the same with regard to other MPC officials in addition to
her immediate supervisors. Moreover, she was not recommended for
rehire partly due to the medical condition, and even when it was
resolved--as early as 1986 and four years prior to trial--MPC did
not unconditionally offer employment to Martinell despite the fact
that it maintains in its arguments before this Court that there
were hundreds of jobs she would have been qualified for at MPC or
Western Energy Company
Nothing in the record nor in the arguments of MPC before this
Court supports in any way a conclusion that anything would have
been different if Martinell had reapplied for employment with MPC.
Martinell's own testimony was that she did not think it would do
any good to reapply with MPC considering the treatment she received
during her employment there.
We conclude that the District Court's findings and conclusions
reveal that the court carefully considered this issue and
determined that antagonism existed between Martinell and MPC and,
therefore, properly awarded front pay in this case.
We hold the District Court did not err in awarding $467,364 in
damages to Martinell.
Affirmed .
We Concur: