NO. 96-249
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
LAWRENCE E. WALKER,
Plaintiff and Appellant,
MONTANA POWER COMPANY, . .d J t n i d
.
I , s OF SUPREME COURl
5 IATE OF MONTANA
Defendant and Respondent.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Thomas A. Olson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Michael J. San Souci and Peter B. Ohman, Law Office
of Michael J. San Souci, Bozeman, Montana
For Respondent:
W. Wayne Harper, Butte, Montana
Submitted on Briefs: August 15, 1996
Decided: October 8, 1996
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
In this action, Lawrence Walker alleges that he was construc-
tively discharged from employment with Montana Power Company (MPC)
and that, in discharging him, MPC violated the federal Americans
with Disabilities Act (ADA) and the Montana Human Rights Act. A
jury in the Eighteenth Judicial District Court, Gallatin County,
found for MPC. Walker appeals. We affirm.
The issues are:
1. Does substantial evidence support the jury's finding that
Walker was not a disabled person?
2. Does substantial evidence support the jury's finding that
Walker was not constructively discharged from his employment with
MPC?
3. Did the District Court err in refusing to set aside the
jury's verdict?
Lawrence Walker began working as a lineman for MPC in 1969.
In 1987, he was promoted to City Foreman of the Bozeman, Montana,
division of MPC.
In 1991, seven subforemen working immediately under Walker
complained to Walker's supervisor about Walker's supervisory
practices over workers on the line crews. Walker's supervisors
investigated the complaints and concluded that, despite their
efforts to coach him on promoting a team spirit with his subordi-
nates, Walker was not communicating well with the crews he
supervised. They realigned his job duties and responsibilities.
Walker's salary remained the same, but he had different supervisory
responsibilities.
Walker's co-workers continued to report problems with his job
performance. Additionally, other problems arose with his work
performance. He was involved in two accidents with company
vehicles. On several occasions, his company vehicle was observed
parked at the Montana State University (MSU) gym on company time.
Finally, the local MPC budget for tree trimming, for which he was
responsible, was overspent for 1991. Walker's supervisor gave him
written "reminders," or warnings, concerning the vehicle accidents
and use of the MSU gym while on company time.
On April 8, 1992, MPC demoted Walker to the title and pay of
lineman. Beginning on that date, Walker took eleven months of
medical and personal leave. From April 15, 1992, through May 11,
1992, he obtained medical leave due to abdominal pain and sleep
disorder. MPC extended this leave through September 11, 1992,
after Walker submitted doctors' reports of headaches, weight loss,
gastritis, back pain, vertigo, and, in August, a fall causing a rib
fracture.
Walker continued on sick leave until October 23, 1992, without
submitting further written documentation of reason. On that date,
he presented his supervisor at MPC with a doctor's written
statement that he was totally disabled, for unspecified reasons,
through the end of November.
Walker then requested and was granted a three-month period of
unpaid personal leave from December 1, 1992, to March 1, 1993. He
did not return to work on March 1. His supervisor at MPC asked him
by letter to return by March 3 or risk being considered to have
voluntarily resigned. When Walker did not appear for work as
scheduled on March 3, MPC terminated him from employment. MPC8s
written reason for the termination was that Walker "[rlefused to
work at a Lineman position."
In his complaint filed in District Court, Walker initially set
forth ten counts against MPC and two of his supervisors there. The
District Court ordered the ten counts reduced to two: wrongful
discharge and disability discrimination. The court dismissed the
two supervisors as defendants, leaving MPC as the sole defendant.
A five-day jury trial ended in a defense verdict. The jury
found that Walker was not a disabled person and had not been
constructively discharged from employment with MPC. Walker
appeals.
ISSUE 1
Does substantial evidence support the jury's finding that
Walker was not a disabled person?
It is up to the jury to determine the credibility of witness-
es. Cechovic v. Hardin & Associates, Inc. (1995), 273 Mont. 104,
112, 902 P.2d 520, 525. We will affirm the jury's findings if
substantial evidence supports them. Cechovic, 902 P.2d at 525.
The first question for the jury on the verdict form was, "Do
you find from a preponderance of the evidence that Plaintiff,
Lawrence Walker, is a disabled person within the definition
furnished by the instructions in this matter?" The jury answered
"no."
The jury was instructed that "disability" means that a person
has a mental impairment that substantially limits one or
more of his major life activities, has a record of such
impairment, or is regarded by the defendant as having
such an impairment.
"Major life activities" was defined for the jury as "functions such
as caring for one's self, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working." The jury was
further instructed that an individual "has a record of an impair-
ment" if "he has a history of a mental impairment, even if
misclassified, that substanLially limits one or more major life
activities." The jury was instructed that an individual is
"regarded as having a disability" if "his mental impairment does
not limit a major life activity, but his employer, through its
agents and employees, treats him as being so limited."
Walker claims he suffered from a mental disability brought
about by work-related stress. He maintains that he consequently
had an acknowledged impairment which substantially limited him in
the major life activity of work. He also maintains that he had a
documented record of such impairment and that he was regarded as
having such an impairment.
While Walker has provided citations to cases which generally
outline the law of disability and constructive discharge, neither
of the cases upon which he places primary reliance is particularly
helpful to his position in the present case. In Martinell v.
Montana Power Co. (1994), 268 Mont. 292, 886 P.2d 421, this Court
5
held that work is a major life activity under the Montana Human
Rights Act. As noted above, the jury was properly instructed in
the present case that work is a major life activity.
The other case upon which Walker places primary reliance is an
unpublished opinion of the United States District Court of Montana,
Richard Durham v. Montana Power Company (December 8, 1994), Cause
No. C V - 9 3 - 1 3 0 . In that case, a jury found that Durham was a
disabled person and a qualified individual with a disability under
the ADA. The jury further found that MPC failed to provide Durham
with reasonable accommodation for his disability. The verdict was
upheld under the substantial evidence standard.
In the present case, Dr. John Robbins, an internist, testified
that he began treating Walker in April 1992. He believed Walker
suffered from stress primarily caused by his working conditions and
that Walker's symptoms would not be relieved unless the work issues
were resolved.
Dr. Robbins further testified that in July 1992, he released
Walker to return to work. Dr. Robbins testified that he did not
diagnose Walker with major or clinical depression, but with mild
depression associated with an anxiety state. He testified that he
did not advise Walker to seek counseling from a psychologist or
psychiatrist. Walker's last documented visit to Dr. Robbins before
his discharge was in August 1992, six months before his discharge,
for dizziness resulting from a fall.
Walker contends MPC was aware of medical reports from his
treating physicians indicating that he was suffering from job-
induced stress and consequent weight loss, symptomatic of depres-
sion. He cites the Equal Employment Opportunity Commission's
Technical Assistance Manual, which provides that stress and
depression may be impairments within the meaning of "disability"
under the ADA.
29 C.F.R. § 1630.2(j)(3)(i) provides:
With respect to the major life activity of workinq-
(i) The term substantiallv limits means signifi-
cantly restricted in the ability to perform either a
class of jobs or a broad range of jobs in various classes
as compared to the average person having comparable
training, skills and abilities. The inability to perform
a single, particular job does not constitute a substan-
tial limitation in the major life activity of working.
In Holihan v. Lucky Stores, Inc. (9th Cir. 1996), 87 F.3d 362,
depression and anxiety prevented plaintiff Holihan from working as
a store manager, but did not prevent him from working in real
estate and sign-making business activities. Citing 29 C.F.R.
§ 1630.2(j)(3), the court ruled that Holihan's depression and
anxiety did not render him disabled within the meaning of the ADA,
because the depression and anxiety did not prevent him from working
at a broad range of jobs, but only at a particular job. Holihan,
Similarly, here, Walker has not contended that his depression
and stress prevented him from working as a supervisor at MPC or in
other employment, but only at a lineman position. Additionally, he
testified that he could have physically and mentally performed the
duties of a lineman after his demotion, if MPC had "removed the
violence" from the workplace.
The record of Walker's depression and stress is limited, at
best. During his eleven-month absence from work at the end of his
employment with MPC, Walker gave various reasons to justify his
medical leave. The only evidence that he received treatment by a
psychologist or psychiatrist for his claimed mental disability was
that he had six sessions with a clinical psychologist in April and
May of 1994.
We turn next to Walker's claim that he was regarded as having
a disability. Walker cites the evidence that his supervisors
allowed him to take extended leave from work and that they
suggested he seek counseling. He also cites notes taken by one of
his supervisors at a meeting with him, in which the supervisor
wrote that his behavior was "paranoid and almost schizo." Walker
further cites MPC1s offer to discuss long-term disability leave
with him as evidence that he was perceived as having a disability.
Both of Walker's supervisors testified that they did not
believe he had a record of, nor did they perceive that he had, a
mental disability. MPC did not treat Walker as if he were limited
in all fields of employment; only in the job of lineman supervisor.
We conclude that the jury properly could have determined that
the credible evidence weighed in favor of a finding that Walker did
not have a mental impairment which rose to the level of a disabili-
ty and that he did not have a record of such an impairment.
Similarly, we conclude that substantial credible evidence exists in
the record that Walker was not regarded as having a disability by
MPC. We hold that substantial evidence supports the jury's finding
that Walker was not disabled.
ISSUE 2
Does substantial evidence support the jury's finding that
Walker was not constructively discharged from his employment with
MPC?
As part of its verdict, the jury answered in the negative the
following question: "Do you find from a preponderance of the
evidence that Plaintiff, Lawrence Walker, was constructively
discharged from his employment with Montana Power Company?" The
jury was instructed that, to prove this claim, Walker must
establish that he voluntarily terminated his employment with MPC
because of a situation that was created by an act or omission of
MPC and that such act or omission created a situation that an
objective, reasonable person would find so intolerable that
voluntary termination was the only reasonable alternative.
Walker argues that MPC1s failure to accommodate him by
removing him from a hostile work environment constitutes a
constructive discharge. In this regard, he again cites the
Martinell case. Martinell had asked to be placed on day shifts
instead of rotating shifts because of her health problems caused by
pelvic inflammatory disease. This Court held that failure to
accommodate Martinell by changing her work shifts was tantamount to
a constructive discharge. Martinell, 886 P.2d at 436. In the
present case, the jury was instructed on the law of constructive
discharge without objection by Walker. Beyond general statements
of the law of constructive discharge and disability, we are not
persuaded that Martinell controls in this case.
Walker complained of "violence in the workplace," which he
maintained caused him a mental disability. In that regard, he
testified about an incident of sexual harassment against a female
MPC employee which occurred in the early 1980 ' s . He also described
two other incidents to the jury, one of which involved an individu-
al employed by a company which contracted with MPC, and the other
involving an employee who was terminated from employment with MPC
following the incident.
Walker contends that had he taken the demotion to a lineman
position, he would have been under the supervision of the same
individuals whose performance dissatisfied him while he was a
supervisor. He appears to be arguing that his April 1992 demotion
to lineman was a constructive discharge. He attempted to present
a case at trial that he was a conscientious MPC employee who was
unpopular with other employees because he tried to make them live
up to his work standards and ethics.
Walker's supervisors testified that they informed him they had
placements available for him other than under the men he formerly
supervised, in the meter shop or on a substation crew, where he
would not be working with the individuals about whom he had
complained. Moreover, "[tlhe ADA does not require an employer to
accommodate an employee who cannot get to work." Kotlowski v.
Eastman Kodak Co. (W.D.N.Y.1996), 922 F.Supp. 790, 798. Walker
was not discharged until a full eleven months after his demotion,
during which eleven months he had not reported for work.
The record contains ample evidence that Walker's discharge
from MPC's employ was for good cause--i.e.,his failure to report
for work after the expiration of his eleven month long series of
medical and personal leave. We conclude that the record contains
substantial evidence to support the jury's finding thdL Walker was
not constructively discharged.
ISSUE 3
Did the District Court err in refusing to set aside the jury's
verdict?
This Court will not overturn a decision to grant or deny a
motion for a new trial absent a showing of manifest abuse of
discretion. Montana Bank of Red Lodge, N.A. v. Lightfield (1989),
237 Mont. 41, 49, 771 P.2d 571, 577.
Walker maintains that the jury's brief deliberation (forty
minutes), when taken in conjunction with the relative complexity of
the legal issues and the weight of the evidence in this case,
supports his position that the court abused its discretion in
refusing to set aside the verdict.
As a general rule, shortness of time taken by a jury in
reaching its verdict has no effect upon the validity of the
verdict. Loppe v. Blocker (Iowa 1974), 220 N.W.2d 570, 574. Only
when the brief jury deliberation is coupled with a verdict that is
contrary to the great weight of the evidence should the trial court
set aside the verdict. Kearns v. Keystone Shipping Co. (1st Cir.
1988), 863 F.2d 177, 182.
The relative complexity of the legal issues in this case had
been narrowed and clarified by the court and counsel by the time
the court gave its instructions to the jury. The verdict form
contained just seven questions, not all of which the jury had to
answer if it determined initially that Walker was not a disabled
person within the meaning of the instructions. The second question
the jury had to consider was whether Walker was constructively
discharged, which issue, like whether he was disabled, we have
discussed above. Based on the streamlining of the issues and upon
our consideration of the issues which remained, we conclude that
the jury's verdict is not contrary to the weight of the evidence
and that the court did not abuse its discretion in refusing to set
aside the verdict.
Walker also lists as an issue whether "the trial court abused
its discretion in excluding certain highly relevant testimony
bearing on the motivation and pattern of hostile conduct directed
against Walker by his antagonists." However, Walker did not
further explain or argue this issue in either of his briefs to this
Court. Therefore, we do not address it.
Af firmed .
We concur:
October 8. 1996
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
Michael J. San Souci; Peter B. Ohman
Law Office of Michael J. San Souci
11 East Main St., Mezzanine Level
Bozeman. MT 59715
W. Wayne Harper, Esq.
Attorney at Law
40 E. Broadway
Butte, MT 59701
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA
BY:
Deputy