NO. 94-350
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
GREGG A. HAFNER,
Plaintiff and Appellant,
-vs-
CONOCO INC., a Delaware corporation
authorized to do business in Montana,
Defendant and Respondent.
STATE OF MONTANA
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable William J. Speare, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Michael G. Eiselein; Lynaugh, Fitzgerald,
Eiselein & Eakin, Billings, Montana
For Respondent:
David A. Veeder; Veeder Law Firm, Billings,
Montana
Submitted on Briefs: November 3, 1994
Decided: December 16, 1994
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.
Gregg Hafner (Hafner) appeals from a summary judgment entered
by the Thirteenth Judicial District Court, Yellowstone County, in
favor of defendant Conoco, Inc. (Conoco) on his claim of employment
discrimination. We reverse and remand for further proceedings.
The issue is whether the District Court erred in granting
summary judgment for Conoco.
In July of 1981, Hafner injured his right knee while working
as a carpenter at Colstrip, Montana. In September of that year, he
underwent a surgical arthroscopy and arthrotomy of the knee. He
returned to work in November of 1981, but had to quit working
because of pain and swelling in the knee. In February 1982, a
second surgery was performed, in which bone was grafted from
Hafner's hip to the knee.
After the second surgery, Hafner was rated as having a 20%
permanent physical impairment, and his treating physician did not
release him to resume his employment as a carpenter. Hafner
enrolled in college, obtained a Bachelor of Science degree in
elementary education, and taught school for six years.
In February 1991, Hafner inquired by letter about job
opportunities with Conoco . He was interviewed by Conoco's
personnel director in Billings, Montana. On March 4, 1991, he
submitted a written application for employment. He took a written
employment test. On March 21, 1991, Hafner was offered a
"probationary assignment" by Conoco in a "Helper" position at its
2
Billings refinery, with regular full-time employment conditioned
upon the successful completion of a pre-employment physical and
drug screening at the Billings Clinic.
On March 28, 1991, Hafner underwent a physical examination at
the Billings Clinic. The examining physician, Dr. William Shaw,
noted he would "[elxpect problems [with Hafner's kneel with
climbing and squatting." Dr. Shaw wrote that Hafner had degenera-
tive joint disease with patellofemoral arthritis, a progressive
condition which would accelerate with repetitive climbing,
squatting and carrying. In a letter written on July 30, 1991, Dr.
Shaw noted that progression of Hafner's condition would cause him
physical harm.
Conoco scheduled a second examination of Hafner by his own
physician, Dr. James Scott. Dr. Scott opined that the Conoco
"Helper" job, which involved climbing with some kneeling and
squatting, was likely to aggravate Hafner's knee problem. The
reports by Drs. Shaw and Scott were sent to a Conoco office in
Oklahoma.
A reviewing physician at the Oklahoma Conoco office instructed
the Billings office that Hafner's job assignment should be
restricted to jobs involving minimal climbing, squatting, and
kneeling. The Billings personnel director then decided that Hafner
would not be considered further for probationary employment,
reasoning that the necessary medical restrictions would impair his
ability to perform his basic duties in a safe manner and his
position could not be modified to accommodate those restrictions.
3
Hafner filed a charge of discrimination with the Montana Human
Rights Commission in November, 1991, alleging that Conoco discrimi-
nated against him on the basis of a handicap. Hafner maintains he
has led an active and symptom-free life during the ten years since
his knee surgery. Prior to his knee injury, he worked at the Exxon
refinery in Billings, and he feels' that he knows what the work
involves and is capable of performing it.
Because it was unable to hold a contested case hearing within
the time allowed, the Human Rights Commission issued a right to sue
letter in March of 1993, as required under § 49-Z-509, MCA. Hafner
then filed his complaint in District Court.
On cross-motions for summary judgment, the District Court
determined that Hafner had failed to prove he was physically handi-
capped or was "regarded as" physically handicapped under § 49-2-
101(15) (a), MCA. The court further found that Hafner had failed to
prove that he was qualified for the Conoco job. The court also
found that Conoco "sustained its burden of proving non-discrimina-
tory reasons for not hiring Hafner." The District Court entered
summary judgment in favor of Conoco. On appeal, Hafner asks this
Court to find as a matter of law that Conoco "regarded" him as
physically disabled, and to reverse and remand for a trial on the
remaining issues of fact.
Did the District Court err in granting summary judgment for
Conoco?
Summary judgment is proper when the record discloses no
4
genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P.
This Court reviews a ruling on a motion for summary judgment under
the same standard as that used by the district court. Minnie v.
City of Roundup (1993), 257 Mont. 429, 431, 849 P.2d 212, 214.
The Montana Human Rights Act prohibits discrimination in
hiring or employment against persons with a physical disability.
Section 49-2-303, MCA. In Martinez v. Yellowstone County Welfare
Dept. (1981), 192 Mont. 42, 626 P.2d 242, this Court adopted the
three-stage test for employment discrimination 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. Under the
first stage of that test, a job applicant must establish four
elements in order to make a prima facie case of discrimination. A
person alleging discrimination must show:
1. The person is a member of the class protected by the
statute;
2. the person applied for and was qualified for the
position;
3. the person was rejected despite being qualified for
the job; and
4. the position remained open and the employer continued
to accept applications from persons with comparable
qualifications.
Hearing Aid Institute v. Rasmussen (1993), 258 Mont. 367, 372, 852
P.2d 628, 632. Establishing this prima facie case "creates a
presumption that the employer unlawfully discriminated against the
plaintiff." Rasmussen, 852 P.2d at 632.
The District Court determined that Hafner failed to establish
5
the first element of the prima facie case. under S 49-2-
lOl(15) (a), MCA, "physical or mental disability" means a physical
or mental impairment that substantially limits one or more of a
person's major life activities, a record of such an impairment, or
a condition "regarded as" such an impairment. Hafner asserts that
Conoco regarded his knee condition as such an impairment. On that
basis, he maintains that he is a member of the class protected
under the Montana Human Rights Act.
We have not heretofore interpreted the "regarded as" provision
of § 49-2-lOl(15) (a), MCA. However, the Montana Human Rights Act
is patterned after the federal Rehabilitation Act of 1973. We have
held that, in this circumstance, "reference to pertinent federal
case law is both useful and appropriate." McCann v. Trustees,
Dodson School Dist. (1991), 249 Mont. 362, 364, 816 P.2d 435, 437.
We look, therefore, to federal case law.
The Equal Employment Opportunity Commission (EEOC) is charged
with federal employers' compliance with the federal Rehabilitation
Act. The EEOC defines the words "is regarded as having an impair-
ment" in the federal statute to mean:
(1) has a physical or mental impairment that does not
substantially limit major life activities but is treated
by an employer as constituting such a limitation; (2)
has a physical or mental impairment that substantially
limits major life activities only as a result of the
attitude of an employer toward such impairment; or (3)
has none of the [above-described] impairments . . but
is treated by an employer as having such an impairment.
29 C.F.R. § 1613.702(e). The EEOC defines "major life activities"
to include "functions, such as caring for one's self, performing
manual tasks, walking, seeing, hearing, and working." 29 C.F.R. 5
6
1613.702(c). The EEOC's construction is accorded deference by the
federal courts because of active Congressional participation in the
administrative process and the resulting correlation between the
regulation and the legislative purpose. Forrisi v. Bowen (4th Cir.
19861, 794 F.2d 931, 934.
An employer does not necessarily regard an employee as
handicapped simply by finding the employee incapable of satisfying
the demands of a particular job. Forrisi, 794 F.Zd at 934-35.
The statutory reference to a substantial limitation
indicates instead that an employer regards an employee as
handicapped in his or her ability to work by finding the
employee's impairment to foreclose generally the type of
employment involved.
Forrisi, 794 F.2d at 935. In Forrisi, the Fourth Circuit ruled
that the record demonstrated the employer did not regard an
employee's acrophobia (fear of heights) as a "substantial limita-
tion" in employability, but rather as a condition rendering the
employee unsuited for one position. Forrisi, 794 F.2d at 935.
Hafner argues that he was "regarded as" physically disabled
because Conoco viewed his physical impairment as a limitation of
his overall ability to work in general. The Conoco personnel
director testified by deposition that he regarded Hafner as
"restricted . in basic job functions that would limit his
performance of work or could limit his performance of work."
Under the federal standard, which we adopt, and based on the
testimony of the Conoco personnel director, we conclude that Hafner
has established that Conoco "regarded" him as physically disabled.
We hold, therefore, that the District Court erred in determining
that Hafner failed to establish the first element of a prima facie
case of employment discrimination. We further hold that Hafner has
established as a matter of law that Conoco regarded him as
physically disabled within the meaning of 5 49-2-lOl(15) (a), MCA.
The District Court also found that Hafner did not prove a
portion of the second element of the prima facie case: that he was
qualified for the position with Conoco. Again, we look to federal
case law for guidance regarding this element.
Taken literally, "otherwise qualified" could be
defined to include those persons who would be able to
meet the particular requirements of a particular program
"but for" the limitations imposed by their handicaps.
The Supreme Court, however, expressly disapproved of such
an interpretation because of the absurd results that
would be produced. "Under such a literal reading, a
blind person possessing all the qualifications for
driving a bus except sight could be said to be 'otherwise
qualified' for the job of driving. Clearly, such a
result was not intended by Congress." The Supreme Court
instead defined an otherwise qualified person as "one who
is able to meet all of a program's requirements in spite
of his handicap."
Chandler v. City of Dallas (5th Cir. 1993), 2 F.3d 1385, 1393;
cert. denied 114 S.Ct. 1386 (1994).
In the present case, Hafner's initial qualifications for the
position are demonstrated by Conoco's offer of probationary
employment to him. Hafner's deposition testimony establishes that
he has done refinery work before and that he understands, and feels
that he is capable of performing, the activities required. His
testimony about the physical activities of which he is capable is
undisputed. In his deposition, he testified that he is able to
walk eighteen holes of golf, he cross-country skis with no problem,
he finished the basement and climbs up on the roof of his house,
8
and he "can do everything . short of . . . kneeling down and
walking on my knees for eight hours." We conclude that Hafner
established the second element of his prima facie case, that he
applied and was qualified for the position.
Having held that the District Court erred in ruling that
Hafner failed to establish the first two elements of a prima facie
case of employment discrimination, we continue with the analysis of
an employment discrimination case under McDonnell Douglas. After
the plaintiff establishes a prima facie case, the burden then
shifts to the employer to rebut the presumption of discrimination
by producing a legitimate, non-discriminatory reason for the
failure to hire. Rasmussen, 852 P.Zd at 632.
The District Court stated:
[T]he reasonable demands of the physical labor position
for which Hafner was applying at Conoco (which included
frequent squatting, kneeling, climbing, lifting, standing
and sitting) required a physical handicap distinction.
The court determined that Conoco "sustained its burden of proving
non-discriminatory reasons for not hiring Hafner."
Like the issues discussed above, the extent to which a risk of
future injury to the job applicant constitutes a non-discriminatory
reason for a failure to hire has not been specifically addressed by
this Court. However, in Rasmussen, we cited with approval
Mantolete v. Bolger (9th Cir. 1985), 767 F.2d 1416. In Mantolete,
the Ninth Circuit discussed the level to which risk of future
injury must rise in order to stand as a non-discriminatory reason
disqualifying an applicant from employment. The court stated:
[Iln some cases, a job requirement that screens out
9
qualified handicapped individuals on the basis of
possible future injury is necessary. However, we hold
that in order to exclude such individuals, there must be
a showing of a reasonable probability of substantial
harm. Such a determination cannot be based merely on an
employer's subjective evaluation or, except in cases of
a most apparent nature, merely on medical reports. The
question is whether, in light of the individual's work
history and medical history, employment of that individu-
al would pose a reasonable probability of substantial
harm.
Such an evaluation necessarily requires the gather-
ing of substantial information by the employer. This, we
believe, was Congress' intent in enacting the Rehabilita-
tion Act of 1973; that is, to prevent employers from
refusing to give much needed opportunities to handicapped
individuals on the basis of misinformed stereotypes.
.
In applying this standard, an employer must gather
all relevant information regarding the applicant's work
history and medical history, and independently assess
both the probability and severity of potential injury.
This involves, of course, a case-by-case analysis of the
applicant and the particular job.
Mantolete, 767 F.2d at 1422-23.
Conoco argues that the Mantolete standard does not apply in
Montana because of the language of § 49-4-101, MCA:
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 nature
or extent of the disabilitv reasonablv urecludes the
performance of the particular emolovment or when the
particular emolovment may subiect the oerson with a
disability or that person's fellow emplovees to ohvsical
harm. [Emphasis supplied. 1
Conoco claims the above standard, that the particular employment
'I may " subject the person or fellow employees to physical harm, is
a broader definition of "non-discriminatory reasons" than the
standard under the federal regulations, which is that the person
"can perform the essential functions of the position in question
10
without endangering the health and safety of the individual or
others." 29 C.F.R. 5 1613.702(f). Conoco argues it has estab-
lished that employment in an entry-level position at its Billings
plant "may" subject Hafner to physical harm. In particular, it
cites Dr. Shawls opinion that progression of Hafner's condition
would cause him physical harm.
In light of the statutory language of § 49-4-101, MCA, we must
agree with Conoco that the Mantolete standard concerning risk of
injury does not control as to whether a non-discriminatory reason
has been articulated for a failure to hire in an action under the
Montana Human Rights Act. We conclude that the District Court did
not err in ruling that Conoco has articulated a non-discriminatory
reason for failing to hire Hafner.
Once the plaintiff in an employment discrimination case has
established a prima facie case of discrimination, and the employer
has rebutted the presumption of discrimination by producing a
legitimate, non-discriminatory reason for the employee's rejection,
the third stage of the McDonnell Douglas test is reached. In that
stage, the plaintiff has an opportunity to prove that the given
reason is only a pretext for discrimination. Rasmussen, 852 P.2d
at 632. Pretext may be proven directly or indirectly, by showing
that the employer's proffered explanation is unworthy of credence.
Rasmussen, 852 P.2d at 632.
In this case, Hafner points out that Conoco's Billings
personnel director rejected him based solely upon his interpreta-
tion of the medical reports and recommendations. The medical
11
reports themselves do not state that Hafner is incapable of doing
the job for which he applied. Nor did the personnel director speak
to either of the doctors or to Hafner about his knee.
Based on the medical reports, the safety concerns raised by
the personnel director must logically relate to Hafner's own safety
and the potential for aggravation of his knee condition. However,
because Hafner's knee condition is progressive, the passage of time
alone will cause him physical harm. Therefore it could be argued
that any employment "may" subject Hafner to physical harm. Under
that argument, any denial of employment to a person with a
progressive condition would be non-discriminatory, even though the
person was capable of performing the job. Although the language of
5 49-4-101, MCA, could conceivably be read that broadly, we
conclude that such a broad reading would gut the purpose of the
Montana Human Rights Act. Therefore, while we have concluded that
the Mantolete standard for risk of injury does not control as to
establishment of a non-discriminatory reason for failure to hire in
actions filed under the Montana Human Rights Act, we conclude that
the Mantolete standard provides useful guidance in relation to
pretext. We hold that Hafner has raised a genuine issue of
material fact as to whether the reason given for the withdrawal of
the offer of employment was a mere pretext.
In summary, we have concluded that the District Court erred in
determining that Hafner failed to establish a prima facie case of
employment discrimination. We have held that Hafner has estab-
lished, as a matter of law, that he is a member of the protected
12
class. We have further concluded that, although the District Court
was correct in determining that Conoco has set forth a non-
discriminatory reason for rejecting Hafner, Hafner has established
a genuine issue of material fact as to whether Conoco's withdrawal
of the job offer was pretextual. We hold, therefore, that the
District Court erred in granting summary judgment for Conoco. We
reverse and remand for further proceedings consistent with this
opinion.
13
Justice Terry N. Trieweiler specially concurring.
I concur with the result of the majority's decision.
I disagree with the majority's conclusion that the language in
5 49-4-101, MCA, is different in any practical respect from
29 C.F.R. § 1613.702(f). Both provisions permit an employer to
consider whether a person's disability would subject that person or
fellow workers to harm in the work place. Therefore, I see no
reason not to follow Mantoletev. Bolger (9th Cir. 1985), 767 F.2d 1416.
I would require the same showing in Montana that is required under
federal law where an employer denies employment based on an
allegation that an applicant's disability creates a risk of harm to
him or herself or to others.
Based on the Mantolete standard concerning risk of injury, I
would conclude that Conoco has not established as a matter of law
a nondiscriminatory reason for failing to hire Hafner. I otherwise
concur with the majority opinion and would reverse the judgment of
the District Court.
Justice William E. Hunt, Sr., joins in the foregoing concurring
opinion.
14
December 16, 1994
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the.
following named:
Michael G. Eiselein
LYNAUGH, FITZGERALD, EISELEIN & EAKIN
Bbx 1729
Billings MT 59103-1729
David A. Veeder
VEEDER LAW FIRM
Box 1115
Billings MT 59103-1115
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA
BY: A &+-+‘-
Deputy