Hafner v. Conoco, Inc.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-350_(04-01-99)_Opinion.htm

No. 98-350

293 Mont. 542

977 P. 2d 330

IN THE SUPREME COURT OF THE STATE OF MONTANA

1999 MT 68

GREGG A. HAFNER,

Plaintiff and Appellant,

v.

CONOCO, INC., a Delaware corporation

authorized to do business in Montana,

Defendant and Respondent.

APPEAL FROM: District Court of the Thirteenth Judicial District,

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In and for the County of Yellowstone,

The Honorable Diane G. Barz, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Michael G. Eiselein, Lynaugh, Fitzgerald & Eiselein, Billings, Montana

For Respondent:

David A. Veeder, Jolane D. Veeder, Veeder Law Firm, Billings, Montana

Submitted on Briefs: December 30, 1998

Decided: April 1, 1999

Filed:

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__________________________________________

Clerk

Justice William E. Hunt, Sr. delivered the Opinion of the Court.

¶1. Gregg A. Hafner (Hafner) appeals from the findings of fact, conclusions of law,
and judgment entered by the Thirteenth Judicial District Court, Yellowstone
County, in favor of Conoco Inc. (Conoco). On January 14, 1999, after filing his
appeal, Hafner filed with this Court a motion for an order or other relief pursuant to
Rule 22, M.R.App.P., requesting that the Court either stay the appeal and remand
this case to the District Court for the purpose of allowing Hafner to move for a new
trial, or, in the alternative, impose sanctions against Conoco for alleged discovery
violations. We issued an order dated January 26, 1999, stating that we would take the
motion under advisement. Having considered the parties' briefs and memoranda
relating to both the appeal and the Rule 22, M.R.App.P. motion, we reverse and
remand for further proceedings consistent with this opinion. Further, we deny the
Rule 22, M.R.App.P. motion without prejudice, and instead order the District Court
to reopen discovery on remand to the extent necessary to comply with this opinion.

¶2. We restate the issues as follows:

¶3. 1. Did the District Court err in finding that Hafner's disability precluded him
from performance of the Helper position at Conoco?

¶4. 2. Did the District Court err in concluding that an unlawful discriminatory
motive played no role in Conoco's decision to withdraw Hafner's offer of
employment?

¶5. 3. Did the District Court err in finding that Conoco had proven, by a
preponderance of the evidence, that an unlawful motive played no role in Conoco's

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decision to withdraw Hafner's offer of employment?

BACKGROUND

¶6. This is the second appeal filed in this case of alleged employment discrimination
brought by Hafner, a physically disabled person, against Conoco. A more detailed
account of the facts of this case can be found in Hafner v. Conoco, Inc. (1994), 268
Mont. 396, 886 P.2d 947 (hereinafter Hafner I). To summarize, Hafner suffered an
injury to his right knee in 1981 while working as a carpenter. After surgical
treatment, Hafner's physician diagnosed him as having a 20% permanent physical
impairment in his right knee. Over the next ten years, Hafner was employed first as a
school teacher and later as a right-of-way agent for Dubray Land Services, Inc. in
Billings. In March 1991, Hafner applied for a job with Conoco as a "Helper" in its
Operations Department. After successfully completing the pre-employment test
battery, Hafner was offered a "probationary assignment" by Conoco in the Helper
position, with regular full-time employment conditioned on successful completion of
a physical examination and drug screening at the Billings Clinic.

¶7. In April 1991, Dr. William Shaw (Dr. Shaw), of the Billings Clinic, and Dr. James
Scott (Dr. Scott), Hafner's treating physician, examined Hafner. Dr. Shaw noted that
Hafner suffered from degenerative joint disease, a condition which would
progressively worsen with repetitive climbing, squatting, and carrying. Dr. Shaw also
noted that progression of Hafner's condition would cause him physical harm. Dr.
Scott noted that Hafner appeared to be doing well but that working in the Helper
position at Conoco would likely aggravate his knee problem.

¶8. The Billings personnel director for Conoco sent the reports of the two examining
physicians to the Conoco medical department in Oklahoma. After reviewing the
reports, physicians at the medical department completed a medical evaluation form
and recommended that work restrictions be placed on Hafner including minimal
climbing, squatting, and kneeling. On April 25, 1991, upon learning of Hafner's work
restrictions, the Billings personnel director decided to withdraw the offer of
probationary employment to Hafner, reasoning that Hafner's work restrictions

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impaired his ability to perform the essential functions of the Helper position in a safe
manner, and that the position could not be modified to accommodate those
restrictions.

¶9. Hafner believed he was capable of performing the duties required of him in the
Helper position. He believed that in withdrawing the job offer, Conoco had
discriminated against him on the basis of a physical disability. Hafner filed a
discrimination claim with the Montana Human Rights Commission. The Human
Rights Commission issued a right to sue letter and Hafner filed suit against Conoco
in District Court alleging violations of the Montana Human Rights Act, §§ 49-2-303,
and 49-4-101, MCA.

¶10. The parties thereafter filed cross-motions for summary judgment. In ruling on
the matter, the District Court applied the three-stage test for employment
discrimination set forth by this Court in Martinez v. Yellowstone County Welfare
Dept. (1981), 192 Mont. 42, 626 P.2d 242 (adopting the same test articulated by the
United States Supreme Court in McDonnell Douglas Corp. v. Green (1973), 411 U.S.
792, 93 S.Ct. 1817, 36 L.Ed.2d 668) (hereinafter the McDonnell test). The first stage
of the McDonnell test required Hafner to establish a prima facie case of
discrimination by proving the following four elements:

1. That he was a member of the protected class;

2. That he applied for and was qualified for the position;

3. That he was rejected despite being qualified for the position; and

4. That the position remained open and the employer continued to accept applications
from persons with comparable qualifications.

McDonnell, 411 U.S. at 802, 93 S.Ct. at 1824. See also Hearing Aid Institute v. Rasmussen (1993), 258 Mont.
367, 372, 852 P.2d 628, 632. If Hafner sustained his burden of establishing a prima facie case, the second stage
of the McDonnell test required Conoco to rebut the presumption of discrimination by producing a legitimate, non-
discriminatory reason for its action. McDonnell, 411 U.S. at 802, 93 S.Ct. at 1824. Finally, if Conoco produced
sufficient evidence which, on its face, showed a legitimate, non-discriminatory reason for its action, the third
stage of the McDonnell test allowed Hafner the opportunity to prove that Conoco's proffered reason was only a
pretext for discrimination. McDonnell, 411 U.S. at 804, 93 S.Ct. at 1825.

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¶11. The District Court determined that Hafner failed to sustain his burden of
establishing a prima facie case of discrimination, finding that Hafner was not
disabled and that he was not otherwise qualified to perform the job of Helper.
Although the court need not have reached the second stage of the McDonnell test, the
court further determined that Conoco had sustained its burden of producing a
legitimate, non-discriminatory reason for its action. On June 8, 1994, the court
entered summary judgment in favor of Conoco. Hafner appealed to this Court.

¶12. On December 16, 1994, this Court reversed the District Court holding that
summary judgment was improper. First, we addressed the District Court's
determination that Hafner had not established the first two elements of a prima facie
case of discrimination. With respect to whether Hafner was a member of the
protected class, we applied federal law in interpreting the meaning of "physical or
mental disability" as described in § 49-2-101(15)(a)(iii), MCA (1993), and ultimately
concluded that, as a matter of law, Hafner was disabled because Conoco "regarded"
him as such. Hafner I, 268 Mont. at 403, 886 P.2d at 951. With respect to whether
Hafner was qualified to perform the job, we again applied federal law in interpreting
the meaning of "qualified," and ultimately concluded that, as a matter of law, Hafner
was qualified to perform the job in spite of his disability. Hafner I, 268 Mont. at 403-
04, 886 P.2d at 951-52. We based this conclusion on the facts that Hafner passed all
the written pre-employment tests and was initially offered the job, as well as Hafner's
uncontroverted testimony that he understood the demands of the job and had the
physical capabilities to meet those demands. Hafner I, 268 Mont. at 403, 886 P.2d at
952.

¶13. Next, this Court addressed the District Court's determination that Conoco had
sustained its burden of producing a legitimate, non-discriminatory reason for its
action. The Court held that § 49-4-101, MCA, was the proper standard for
determining risk of injury and, therefore, the District Court did not err in ruling that
Conoco had produced a non-discriminatory reason for its action. Hafner I, 268
Mont. at 405, 886 P.2d at 953. Finally, we stated that because Hafner had established
a prima facie case of discrimination, and Conoco had produced a legitimate non-
discriminatory reason for its action, the third stage of the McDonnell test was
reached: Hafner was now allowed the opportunity to prove that Conoco's proffered
reason was only a pretext for discrimination. Hafner I, 268 Mont. at 405, 886 P.2d at
953. The Court concluded that a genuine issue of material fact existed concerning the
issue of pretext and remanded the case to the District Court for a trial on the matter.

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Hafner I, 268 Mont. at 406, 886 P.2d at 953.

¶14. In the interim between remand of this case and commencement of the trial, this
Court issued its decision in Reeves v. Dairy Queen, 1998 MT 13, 287 Mont. 196, 953
P.2d 703. In Reeves, the Court recognized that the three-stage McDonnell test
created undue confusion for "direct evidence employment discrimination cases,"
defined as cases in which the parties do not dispute the reason for the employer's
adverse action, but only whether such action is illegal discrimination. Reeves, ¶¶ 15-
16. The Court held that the appropriate test for direct evidence employment
discrimination cases was not the McDonnell test but, rather, the test articulated in
Rule 24.9.610(5), ARM. Reeves, ¶¶ 17-18 (recognizing that federal courts have
adopted this new test as well). Pursuant to the administrative rule, once a
complainant has established a prima facie case of discrimination with direct
evidence, the burden shifts to the employer to prove by a preponderance of the
evidence that an unlawful motive played no role in the challenged action or that the
direct evidence of discrimination is not credible and is unworthy of belief. Rule
24.9.610(5), ARM; Reeves, ¶¶ 17-18.

¶15. After a lengthy discovery period, a non-jury trial commenced on November 17,
1997. On April 28, 1998, the District Court issued its Findings of Fact, Conclusions of
Law, and Order. The court made the following findings of fact: that the nature and
extent of Hafner's physical disability reasonably precluded performance of the
Helper position; that Hafner's performance of the Helper position may have
subjected Hafner or his fellow employees to physical harm; that Conoco gathered
sufficient information about Hafner to assess the potential injury to himself and
others if he were employed as a Helper; and that Conoco's proffered reason for
withdrawing its offer of probationary employment to Hafner was not pretextual.

¶16. In its conclusions of law, the court cited our decision in Hafner I, 268 Mont. at
405-06, 886 P.2d at 953, and stated that, as a matter of law, Hafner had established a
prima facie case of discrimination and Conoco had set forth a non-discriminatory
reason for its action. The court further stated that the new burden-shifting test for
direct evidence cases announced in Reeves applied. The court then summarily
concluded that Conoco had met its burden of proving by a preponderance of the
evidence that an unlawful motive played no role in the challenged action or that the
direct evidence of discrimination is not credible and is unworthy of belief. The court
entered judgment in favor of Conoco on May 1, 1998. This appeal followed.

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¶17. On January 14, 1999, while this appeal was pending, Hafner filed with this
Court a motion for an order or other relief pursuant to Rule 22, M.R.App.P. Hafner
requested the Court to stay the appeal and remand the case to allow him to move the
District Court for a new trial. In the alternative, Hafner requested the Court to
impose sanctions on Conoco for alleged discovery violations. Hafner stated that the
basis for these requests was that while this appeal was pending, he had come into
possession of Conoco's job description for the position of "Unit Operator." Like the
Helper position, the Unit Operator position was one of four positions within the
operations department at Conoco: Unit Operator, Helper, Trainee, and Controlman.
The job description for Unit Operator lists the following minimum physical
requirements needed to perform the job: occasional walking, occasional standing,
occasional squatting, frequent sitting, and occasional lifting of ten pounds and
frequent lifting of a half pound. No climbing or carrying was required.

¶18. Hafner stated that during discovery, Conoco produced the job descriptions for
the Helper, Trainee, and Controlman positions, but not the Unit Operator position.
The Unit Operator position is the only position of the four that does not require
frequent walking, climbing, standing, squatting, and lifting and carrying in excess of
fifty pounds. Hafner alleged that Conoco willfully and fraudulently withheld this
important documentary evidence, and that such conduct deprived Hafner of a fair
trial. Conoco denied these allegations. We issued an order dated January 26, 1999,
stating that we would take the Rule 22, M.R.App.P., motion under advisement.

DISCUSSION

Issue One

¶19. Did the District Court err in finding that Hafner's disability precluded him from performance of the
Helper position at Conoco?

¶20. Hafner argues that the District Court erred in finding that his disability
precluded him from performance of the Helper position because such a finding was
contrary to the law of the case and, therefore, beyond the scope of the court's
jurisdiction. We agree. The law of the case doctrine "expresses the practice of courts
generally to refuse to reopen what has been decided." Marriage of Scott (1997), 283
Mont. 169, 175, 939 P.2d 998, 1001-02. We have held:

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[W]here upon an appeal, the Supreme Court, in deciding a case presented, states in its
opinion a principle or rule of law necessary to the decision, such pronouncement becomes
the law of the case and must be adhered to throughout its subsequent progress, both in the
trial court and upon subsequent appeal.

Scott, 283 Mont. at 175-76, 939 P.2d at 1002. Here, the parties appear in a second appeal of the same case
involving the same issues as those previously addressed in Hafner I. In Hafner I, this Court determined, as a
matter of law, that Hafner was qualified to perform the tasks required of the Helper position. Having made this
determination in Hafner I, it became the law of the case and the District Court was without jurisdiction to revisit
the issue. We hold that the court erred in finding that Hafner's disability precluded him from performance of the
Helper position.

¶21. Although we find error in the court's finding, we recognize the confusion that
application of Reeves may have had on the instant case. Therefore, for the benefit of
the court and the parties on remand of this case, we take this opportunity to briefly
clarify the proper application of Reeves to the instant case. As previously stated,
Reeves changed the shifting burden requirements for direct evidence employment
discrimination cases. In such cases, once the complainant has established a prima
facie case of discrimination with direct evidence, the burden then shifts to the
employer to prove either or both of two defenses: that an unlawful motive played no
role in the challenged action or that the direct evidence of discrimination is not
credible and is unworthy of belief. Reeves, ¶¶ 17-18; Rule 24.9.610(5), ARM.

¶22. The instant case is unique and very different from most direct evidence cases.
Here, the law of the case precludes Conoco from choosing the second defense and
attacking the credibility of the direct evidence of discrimination. In Hafner I, we
determined, as a matter of law, that Hafner was disabled, that he was qualified, and
that he had established a prima facie case of discrimination. We held that Hafner
was statutorily disabled because Conoco regarded him as such. Those determinations
are the law of the case and cannot be revisited by the parties or the District Court.
Scott, 283 Mont. at 175-76, 939 P.2d at 1002. Furthermore, Conoco does not dispute
that it withdrew Hafner's job offer on the basis of his disability. Conoco disputes only
whether this discrimination was illegal. Thus, the only part of Reeves applicable to
this case is Conoco's burden of proving absence of unlawful motive in the challenged
action. Put another way, what was Hafner's burden of proving pretext under Hafner

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I and the McDonnell test, is now Conoco's burden of proving absence of unlawful
motive under the Reeves test.

Issue Two

¶23. Did the District Court err in concluding that an unlawful discriminatory motive played no role in
Conoco's decision to withdraw Hafner's offer of employment?

¶24. We review a district court's conclusions of law to determine whether the court's
interpretation of law is correct. Carbon County v. Union Reserve Coal Co. (1995),
271 Mont. 459, 469, 898 P.2d 680, 686.

¶25. In Hafner I, Conoco defended its decision to withdraw Hafner's job offer on the
ground that Hafner's disability prevented him from performing the tasks of the
Helper position in a safe manner, and that the position could not be modified to
accommodate his disability. Hafner I, 268 Mont. at 400, 886 P.2d at 950. Conoco
based its defense on §§ 49-4-101 and 49-2-101(15)(b), MCA (1993). Section 49-4-101,
MCA, provides in relevant part:

It is unlawful to discriminate, in hiring or employment, against a person because of the
person's physical disability. There is no discrimination . . . when the particular
employment may subject the person with a disability or that person's fellow employees to
physical harm.

Section 49-2-101(15)(b), MCA, provides:

Discrimination based on, because of, on the basis of, or on the grounds of physical or
mental disability includes the failure to make reasonable accommodations that are
required by an otherwise qualified person who has a physical or mental disability. An
accommodation that would require an undue hardship or that would endanger the health or
safety of any person is not a reasonable accommodation.

Upon remand of the case and in light of our determination that, as a matter of law, Hafner

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was qualified to perform the tasks of the Helper position, Conoco modified its defense by
arguing that because Hafner's knee condition was progressive, employment in the Helper
position may subject Hafner to a risk of future physical harm.

¶26. In its conclusions of law, the District Court followed Hafner I, 268 Mont. at 406,
886 P.2d at 953, and concluded that the federal standard concerning risk of harm
articulated in Mantolete v. Bolger (9th Cir. 1985), 767 F.2d 1416, provided "useful
guidance" in determining the issue of pretext. The court explained that the
Mantolete standard provides that in order to exclude a qualified disabled individual
on the basis of a risk of harm, there must be a showing of a "reasonable probability
of substantial harm." See Mantolete, 767 F.2d at 1422-23. Further, the court
explained that such a showing cannot be based merely on an employer's subjective
evaluation or, except in cases of a most apparent nature, merely on medical reports.
See Mantolete, 767 F.2d at 1422-23.

¶27. Despite these conclusions of law, the court did not issue a finding that Conoco
had shown a "reasonable probability of substantial harm." Rather, the court found
that Hafner's employment as a Helper at Conoco "may have subjected Hafner or his
fellow employees to physical harm." Further, it appears the court based this finding
on medical reports alone. The court issued only the following finding:

Based on the testimony of Dr. Shaw, Dr. Scott, Dr. Rudert, and Dr. Rapagnani [the latter
two identified as the reviewing physicians in Conoco's medical department], the court
finds that Plaintiff's knee condition would have prevented him from progressing beyond
the probationary period in the Helper position with Conoco.

Based on these findings alone, the court ultimately concluded that no unlawful motive
played a role in Conoco's decision to withdraw Hafner's job offer.

¶28. Hafner contends the District Court misinterpreted the law in concluding that no
unlawful discriminatory motive played a role in Conoco's decision to withdraw
Hafner's job offer. Hafner bases his contention on three grounds: (1) the court failed
to apply the correct legal standard regarding the risk of harm; (2) the court failed to
make necessary findings and conclusions concerning whether reasonable
accommodations were available to Hafner and, if so, whether Conoco discharged its
affirmative duty to make such reasonable accommodations; and (3) the court failed

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to make necessary findings and conclusions concerning whether Conoco discharged
its affirmative duty to conduct an independent assessment of the risk of harm and
whether such risk could be reduced or eliminated by an accommodation. We agree
with Hafner on all three grounds and discuss each one in turn.

A. Legal Standard for Risk of Harm

¶29. With respect to the correct legal standard for risk of harm, Hafner argues that
the court erred in applying the expansive "may subject the person to physical harm"
language of § 49-4-101, MCA, and failing to apply the more restrictive "reasonable
probability of substantial harm" standard articulated in Mantolete. Hafner lists
several reasons in support of his argument. First, Hafner notes that this Court
specifically rejected an expansive interpretation of the language in § 49-4-101, MCA,
when determining whether an employer's failure to hire a person based on safety
concerns is pretextual or unlawful. Hafner I, 268 Mont. 406, 886 P.2d at 953. He
notes that the Court indicated that such a loose interpretation would allow easy
circumvention of the Montana Human Rights Act because any employer could
regard a disabled person with a progressive condition as subject to future harm.
Hafner I, 268 Mont. 406, 886 P.2d at 953.

¶30. Second, Hafner points out that § 49-4-101, MCA, was modeled after a similar
statute in New Jersey. See Minutes of the Meeting of the Labor and Employment
Relations Committee, Montana State Senate (1974) (statement of Tony Softich on HB
654). Hafner states that the New Jersey Supreme Court analyzed the risk of harm
defense under that state's anti-discrimination statute and held that the correct legal
standard for risk of harm was the Mantolete standard. See Jansen v. Food Circus
Supermarkets, Inc., (N.J. 1988), 541 A.2d 682. Hafner argues the Jansen decision is
persuasive authority. The Jansen court held:

[A]n employer may consider whether the handicapped person can do his or her work
without posing a serious threat of injury to the health and safety of himself or herself or
other employees. That decision requires the employer to conclude with a reasonable
degree of certainty that the handicap will probably cause such an injury. The mere fact that
the applicant is an epileptic will not suffice. Otherwise, unfounded fears or prejudice about
epilepsy could bar epileptics from the work force. The appropriate test is not whether the
employee suffers from epilepsy or whether he or she may experience a seizure on the job,
but whether the continued employment of the employee in his or her present position

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poses a reasonable probability of substantial harm.

Jansen, 541 A.2d at 687-88 (citations omitted) (emphasis added). The Jansen court also indicated that its
holding was consistent with several other jurisdictions. Jansen, 541 A.2d at 688.

¶31. Lastly, Hafner states that the Mantolete standard is consistent with federal
regulations promulgated by the Equal Employment Opportunity Commission
implementing the Americans with Disabilities Act of 1990 (ADA). The regulations
provide:

An employer may require, as a qualification standard, that an individual not pose a direct
threat to the health or safety of himself/herself or others. . . . An employer, however, is not
permitted to deny an employment opportunity to an individual with a disability merely
because of a slightly increased risk. The risk can only be considered when it poses a
significant risk, i.e. high probability of substantial harm; a speculative or remote risk is
insufficient.

29 C.F.R. § 1630.2(r) (1997) (emphasis added). Hafner cites several cases in which this
Court has looked to federal regulations interpreting the ADA for guidance in interpreting
provisions of the Montana Human Rights Act, and urges the Court to continue this
practice. See Reeves; Walker v. Montana Power Co. (1996), 278 Mont. 344, 924 P.2d
1339; Hafner I; Martinell v. Montana Power Co. (1994), 268 Mont. 292, 886 P.2d 421;
Hearing Aid Institute v. Rasmussen (1993), 258 Mont. 367, 852 P.2d 628; McCann v.
Trustees, Dodson School Dist. (1991), 249 Mont. 362, 816 P.2d 435.

¶32. Further, the amici curiae in this case note that in 1996, after this Court's
decision in Hafner I, the Montana Human Rights Commission included the
Mantolete standard in promulgating Rule 24.9.606(7), ARM, which provides:

If an employer defends an adverse employment action against a person with a physical or
mental disability on the grounds that an accommodation would endanger the health or
safety of a person, the employer's failure to independently assess whether the
accommodation would create a reasonable probability of substantial harm will create a
disputable presumption that the employer's justification is a pretext for discrimination on
the basis of disability. (Emphasis added.)

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¶33. The amici also note that when this Court first addressed the Mantolete standard
in Hafner I, it did so in the context of the McDonnell test. The Court held that while
Mantolete would not control in determining whether an employer has produced a
non-discriminatory reason for the challenged action, Mantolete would provide
"useful guidance" in determining whether such reason was a mere pretext. Hafner I,
268 Mont. at 406, 886 P.2d at 953. The amici argue that in light of Reeves, and the
employer's expanded burden of proving absence of unlawful motive in direct
evidence cases, the Mantolete standard is the most appropriate standard in
determining risk of harm.

¶34. We find Hafner's and the amici's arguments persuasive. Equally persuasive is
the need to effectively balance the disabled individual's interest of enjoying true
equal employment opportunities with the employer's interest of ensuring that
employment of disabled individuals does not pose a risk of harm to themselves or
others. As Hafner and the amici have argued, it appears our pronouncement in
Hafner I, that the Mantolete standard serves as "useful guidance" in determining
risk of harm, has not been effective in correcting the imbalance created by the
expansive "may" language in § 49-4-101, MCA, and implementing the remedial
purposes of Montana's anti-discrimination statutes. We are required to construe
statutes in a manner consistent with their intended purpose. Section 1-2-102, MCA.
Therefore, in keeping with this duty, and in an effort to provide employees,
employers, lawyers, and judges definitive guidance concerning the risk of harm
defense, we hold that in all employment discrimination cases, the appropriate
standard to be applied when determining whether employment of a job applicant
poses a risk of harm to himself or others, is the Mantolete standard, that is, whether
employment of the job applicant poses a reasonable probability of substantial harm
to himself or others.

B. Reasonable Accommodations

¶35. At trial, Hafner presented testimony by Dr. Rudert that accommodations were
available to reduce the risk of harm to Hafner. Dr. Rudert testified that Hafner could
use knee pads, and could be trained to perform a climbing technique that puts more
stress on the "good" knee and less stress on the "bad" knee. Further, the recently
discovered job description of "Unit Operator" reveals that placing Hafner in the

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Unit Operator position, a position within the same department as the Helper
position, may constitute a reasonable accommodation for Hafner's knee problem.
Despite Dr. Rudert's testimony, however, the District Court failed to make any
findings or conclusions concerning whether reasonable accommodations were
available to Hafner and, if so, whether Conoco discharged its affirmative duty to
make such reasonable accommodations. Hafner argues that the District Court's
failure in this regard constitutes clear error. We agree.

¶36. An employer has an affirmative duty to make reasonable accommodations that
are required by an otherwise qualified disabled person. In Reeves, we stated:

Montana law requires employers to reasonably accommodate their employees if the
employees are disabled or are regarded as such, unless the accommodation would impose
an undue hardship on the employer or endanger the health and safety of any person.

Reeves, ¶ 40 (citing § 49-2-101(19)(b), MCA). See also Rule 24.9.606, ARM. An employer's duty to provide
reasonable accommodations to disabled persons is an essential part of Montana's anti-discrimination statutes.
Martinell, 268 Mont. at 309-10, 886 P.2d at 432. Upon the foregoing, we hold that the District Court erred in
failing to make the necessary findings and conclusions concerning whether reasonable accommodations were
available to Hafner and, if so, whether Conoco discharged its affirmative duty to make such reasonable
accommodations.

C. Independent Assessment of the Risk of Harm

¶37. In its findings of fact, the District Court made only the following finding
concerning assessment of the risk of substantial harm:

Conoco gathered sufficient information about Plaintiff to assess the potential injury to
Plaintiff and others if Plaintiff were employed by Conoco in the Helper position.

Hafner argues that the court erred in failing to make more specific findings concerning
whether Conoco discharged its affirmative duty to conduct an independent assessment of
the risk of substantial harm, and whether such risk could be reduced or eliminated by an
accommodation. Hafner bases his argument on our decision in Reeves and on Rule
24.9.606(7) and (8), ARM. In Reeves, we specifically disapproved of an employer making
unilateral decisions regarding what would be best for its disabled employee, regardless of

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the good intentions of the employer. Reeves, ¶ 35. We intimated that in order to establish
the risk of harm defense, an employer must speak directly with the disabled employee
about the seriousness of his or her condition and become generally informed about the
effects of his or her condition. Reeves, ¶ 35.

¶38. In a later part of Reeves, where we discussed the employer's failure to make
reasonable accommodations, we held that when an employer defends an employment
discrimination action on the basis that no accommodation can be made without
posing a risk of harm, the employer has an affirmative duty to conduct an
independent assessment of the risk of substantial harm. Reeves, ¶ 42. We held that
such an independent assessment involves:

evaluation by the employer of the probability and severity of potential injury in the
circumstances, taking into account all relevant information regarding the work and
medical history of the person with the disability before taking the adverse employment
action in question.

Reeves, ¶ 42 (quoting Rule 24.9.606(8), ARM). We again stressed the importance of the employer speaking
directly with the employee concerning ways to ensure the employee's safety in future employment. Reeves, ¶ 42.

¶39. Rule 24.9.606(7), ARM, provides further guidance on this issue. That rule
provides:

If an employer defends an adverse employment action against a person with a physical or
mental disability on the grounds that an accommodation would endanger the health or
safety of a person, the employer's failure to independently assess whether the
accommodation would create a reasonable probability of substantial harm will create a
disputable presumption that the employer's justification is a pretext for discrimination on
the basis of disability.

We believe this rule further underscores the importance of the independent assessment
requirement.

¶40. The federal regulations under the ADA provide useful guidance as well. The
regulations detail the highly individualized nature of the federal independent

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assessment required under that statute's "direct threat" analysis. The interpretive
guidelines to 29 C.F.R. § 1630.2(r), provide:

Determining whether an individual poses a significant risk of substantial harm to others
must be made on a case by case basis. . . . For individuals with physical disabilities, the
employer must identify the aspect of the disability that would pose the direct threat. The
employer should then consider the four factors listed in part 1630. . . . Such consideration
must rely on objective, factual evidence--not on subjective perceptions, irrational fears,
patronizing attitudes, or stereotypes--about the nature or effect of a particular disability, or
of disability generally. Relevant evidence may include input from the individual with a
disability, the experience of the individual with a disability in previous similar positions,
and opinions of medical doctors, rehabilitation counselors, or physical therapists who have
expertise in the disability involved and/or direct knowledge of the individual with the
disability. Generalized fears about risks from the employment environment, such as
exacerbation of the disability caused by stress, cannot be used by an employer to
disqualify an individual with a disability.

¶41. In light of Reeves, and the clear import of the independent assessment
requirement expressed by the Administrative Rules of Montana and the federal
regulations interpreting the ADA, we hold that when an employer defends an
employment discrimination case by asserting risk of harm, the employer has a duty
to independently assess that risk of harm in accordance with Rule 24.9.606(8), ARM,
regardless of whether the case arises under the McDonnell or Reeves burden-shifting
tests, and regardless of whether the alleged risk of harm is directed to the employee's
initial qualifications or the existence of reasonable accommodations. We hold that in
determining whether an employer has discharged its duty in this regard, a district
court must make specific findings concerning with whom the employer spoke about
the risk of substantial harm and whether the employer took into account all relevant
information concerning the risk of harm including the following: the seriousness of
the employee's injury, the employee's work history, the employee's medical history,
and the existence of reasonable accommodations that could possibly reduce the risk
of substantial harm to the employee. These findings are necessary to a complete
resolution of an employment discrimination claim. Applying our holding to the
instant case, we determine that the District Court erred in failing to make more
specific findings concerning whether Conoco adequately discharged its affirmative
duty to independently assess the risk of substantial harm to Hafner.

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Issue Three

¶42. Did the District Court err in finding that Conoco had proven, by a preponderance of the evidence,
that an unlawful motive played no role in Conoco's decision to withdraw Hafner's offer of employment?

¶43. The parties argue at length whether sufficient evidence exists to support the
court's findings that employment at Conoco subjected Hafner to a risk of harm and
that an unlawful motive played no role in Conoco's decision to withdraw Hafner's
offer of employment. Further, the parties dispute certain credibility determinations
made by the court. In light of the above discussion concerning the need for further
proceedings in this case, we determine that any inquiry into the sufficiency of the
evidence or the adequacy of the court's credibility determinations at this time would
be futile. Therefore, we decline to address these issues.

¶44. Upon the foregoing, this case is reversed and remanded for further proceedings
consistent with this opinion. The Rule 22, M.R.App.P., motion filed by Hafner during
the pendency of this appeal is denied without prejudice. Instead, the District Court is
ordered to reopen discovery to the extent necessary to comply with this opinion.

¶45. Reversed and remanded.

/S/ WILLIAM E. HUNT, SR.

We Concur:

/S/ J. A. TURNAGE

/S/ JIM REGNIER

/S/ W. WILLIAM LEAPHART

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Justice James C. Nelson specially concurs and dissents.

¶46. I concur in our decision on Issues 1 and 3 and in our discussion under "B.
Reasonable Accommodations" at ¶¶ 35-36 of Issue 2. In light of the amendment to
Rule 24.9.606(7), ARM, adopted after our decision in Hafner I and discussed in ¶ 32,
I also concur in the substance of our discussion under "A. Legal Standard for Risk of
Harm" at ¶¶ 29-34 and "C. Independent Assessment of the Risk of Harm" at ¶¶ 37-
41, of Issue 2. With regard to these latter two discussions, however, I would not apply
the Mantolete standard in this case but, rather, would apply this standard
prospectively only. In my view, the doctrine of the law of the case requires this result.

¶47. In Hafner I, although we concluded that Mantolete provides "useful guidance in
relation to pretext" we declined to adopt this standard as controlling. It was in that
posture that Hafner I was remanded to the trial court for further proceedings
"consistent with [our] opinion." Hafner, 268 Mont at 406, 886 P.2d at 953. Our
subsequent decision in Reeves did not mention Mantolete.

¶48. We recently summarized the law of the case doctrine in Scott v. Scott (1997), 283
Mont. 169, 939 P.2d 998, as follows:

[this] doctrine "expresses the practice of courts generally to refuse to reopen what has
been decided. It expresses the rule that the final judgment of the highest court is the final
determination of the parties' rights." This Court has stated that

[t]he rule is well established and long adhered to in this state that where upon an appeal,
the Supreme Court, in deciding a case presented states in its opinion a principle or rule of
law necessary to the decision, such pronouncement becomes the law of the case, and must
be adhered to throughout its subsequent progress, both in the trial court and upon
subsequent appeal.

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Scott, 283 Mont at 175-76, 939 P.2d at 1001-02 (citing Fiscus v. Beartooth Elec. Cooperative, Inc. (1979), 180
Mont. 434, 436, 591 P.2d 196, 197). Moreover, "[w]hether the opinion is right or wrong, it is the law of the
case . . . and is binding upon us." Fiscus, 180 Mont. at 437, 591 P.2d at 198 (citation omitted). "Once a decision
has been rendered by this Court on a particular issue between the same parties in a case, that decision is binding
upon the courts and the parties and cannot be relitigated in a subsequent appeal." In re Marriage of Becker
(1992), 255 Mont. 357, 361, 842 P.2d 332, 334 (citation omitted). Finally, when a case is reversed and remanded
for further proceedings "the trial court is not free to ignore the mandate and opinion of the reviewing court, but
must proceed in conformity with the views expressed by the appellate court." Haines Pipeline Const. v. Montana
Power (1994), 265 Mont. 282, 290, 876 P.2d 632, 637 (citation omitted).

¶49. In Hafner I, our decision not to adopt the Mantolete standard became the law of
the case. As such, our decision determined the rights of the parties on this matter,
governed the further progress of the case before the trial court on remand and could
not be relitigated in this, the subsequent appeal. In applying the Mantolete standard
here instead of the standard set out in § 49-4-101, MCA, as we did in Hafner I, we
have clearly (and without explanation) violated the law of the case doctrine.

¶50. It is ironic that, as to Issue 1, we have reversed the trial court for violating the
law of the case doctrine and Scott, but that, as to Issue 2, we have, ourselves, simply
ignored this same doctrine and controlling precedent. As to the application of the
Mantolete standard in the case at bar, I dissent. I concur with the balance of our
opinion.

/S/ JAMES C. NELSON

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