No. 14304
IN THE SUPREME C m O THE STATE O MONTANA
F F
P l a i n t i f f an3 Appellant,
ST. JOHN'S LUTHERAN HOSPITAL, a
Mntana Corporation,
Defendant and Respondent.
Appeal f r m : D i s t r i c t Court of the Nineteenth Judicial D i s t r i c t ,
Honorable Ibbert M. H o l t e r , Judge presiding.
Counsel of Record:
For Appllant:
Fennessy , Crocker and Harman, Libbv, blontana
David Harman argued, Libby, Wntana
Jean Galloway Koreski argued, Washington, D. C.
For Respondent:
Lawrence H. Sverdrup, Libby, Ebntana
Smith L w Fixm, H e l e n a , Mntana
a
Cha6wic.k Smith argued, Helena, Fbntana
Filed: -jUN1 3 5979
Mr. Justice John C. Sheehy delivered the Opinion of the Court.
This is an appeal from the District Court, Nineteenth
Judicial District, Lincoln County, on a judgment against
Marjorie C. Swanson who was discharged from her employment
as a nurse-anesthetist at St. John's Lutheran Hospital
in Libby. She brought her action in the District Court
upon the ground that she had been wrongfully dismissed
from her employment because she had asserted her rights
under former section 69-5223, R.C.M. 1947, now section 50-5-
502 through -505 MCA.
Former section 69-5223, has been referred to in briefs
before this Court, as it was during its legislative
history, as the "conscience statute". For ease of reference,
we will use that term here, although the Court implies
nothing by the use of that term. The conscience statute
defined certain rights of medical persons who are confronted
with sterilization procedures as a part of their employment.
Specifically, the conscience statute includes these
provisions:
"(2) All persons shall have the right to
refuse to advise concerning, perform,
assist, or participate in sterilization
because of religious beliefs or moral
convictions. If requested by any hospital
or health carefacility, or person desiring
sterilization, such refusal shall be in
writing signed by the person refusing, but
may refer generally to the grounds of
'religious beliefs and moral convictions'.
The refusal of any person to advise con-
cerning, perform, assist, or participate
in sterilization, shall not be a consideration
in respect to staff privileges of any
hospital or health care facility, nor a basis
for any discriminatory, disciplinary, or
other recriminatory action against such person,
nor shall such person be liable to any person
for damages allegedly arising from such
refusal.
"(3) It shall be unlawful to interfere
or attempt to interfere with the right
of refusal authorized by this section,
whether by duress, coercion or any other
means. The person injured thereby shall
be entitled to injunctive relief, when
appropriate and shall further be entitled
to monetary damages for injuries suffered."
The Court notes parenthetically that the legislature
adopted virtually the same provisions with respect to
abortion procedures in former section 94-5-620, R.C.M.
1947, now section 50-20-111 MCA.
The two-fold purpose of the conscience statute is
plain: (1) It mandates that no person can be compelled
to participate in sterilization against his moral or
religious principals; (2) It prohibits firing any person
for refusing to participate in sterilization on such
grounds. The law is statewide in its effect, embracing
as well the largest metropolitan hospitals and clinics
and the smallest hospital or medical office in Montana.
Marjorie Swanson is a Certified Registered Nurse-
Anesthetist (CRNA) who was employed by the hospital for
eight years prior to discharge in her professional
capacity as a nurse-anesthetist. In the four years
preceding August 1977, she had assisted professionally
in twenty surgical procedures that involved sterilizations
and in the year preceding August 1977, six such procedures.
On August 19, 1975, she assisted professionally in
a surgical procedure that was listed on the surgery schedule
in the hospital as a "D and C", a dilatation and curettage.
Immediately prior to the operation, in examining the chart
of the patent, she had discovered that an abortion permit
was required by the hospital medical staff for this
particular procedure. Nevertheless, she went ahead
professionally and gave anesthetic to the patient. During
the course of the procedure she observed that a human
fetus was removed from the uterine lining of the patient,
part by part, by the use of instruments. Her observation
of the dissection and removal of the fetal tissue caused
her to be "horrified and very upset".
August 19, 1977 was a Friday. Over the weekend, she
learned that a procedure described as a bilateral part-
salpingectomy, a tubal ligation, was scheduled for
Tuesday, August 23, 1977. The operation had been listed
on the surgical schedule posted by the hospital on August
10, 1977, but the anesthetist first became aware of it
over the weekend immediately preceding the Tuesday operation
date. On Monday, August 22, 1977, at about 10:OO a.m.,
she advised the administrator of the hospital, Dan Wigart,
that she would not participate in the tubal ligation,
which is a sterilization procedure. The administrator
"tried to convince [her] that [she] could participate in
it". He also indicated that she should be able to assist
at therapeutic abortions. Wigart asked her to withhold
making a final decision until he had spoken to her local
priest, and she said she would also speak to him, although
Wigart reported "she did have a sense of finality in it
at that time."
Rev. Charles Strom testified that on the afternoon
of August 22, at about 3:00 p.m. he was approached by
Dan Wigart who asked him for his help and "sounding out
about her attitude on sterilization". In fact, Dan Wigart
testified in part:
". . . She repeated two or three times
'If I have to resign, I will. But
I am not going to do tubal ligations.'
I asked her to give me some background
on this. I asked her to withhold her
final decision until I talked to Father
Strom and Dr. Seifert, and also the two
physicians who were involved in the D
& C. I made every attempt to try to
reduce her anxiety about the procedure.
I felt that there were other factors
that were bothering her. And I hoped that
Father Strom would have talked to her
and supported her from the standpoint
that participation in a tubal ligation
does not represent direct participation.
This is something that Dr. Seifert and
I had talked about that same morning."
At 7:00 p.m. that evening, Marjorie Swanson called
Wigart and informed him that her mind was made up and
she was not going to participate in tubal ligation.
Thereupon Wigart obtained the services of a nurse-
anesthetist from Bonners Ferry, Idaho, and the surgery
went ahead as scheduled.
At 4:30 p.m. on August 23, 1977, Wigart telephoned
Marjorie Swanson at her home and informed her that she
was discharged from her position as nurse-anesthetist at
the hospital. She requested that he give her a written
statement of the reasons for her discharge. He did so,
sending her a letter in full as follows:
"23 August 1977
"Marjorie Swanson
"Rt 2, Box 556
"Libby MT 59923
"Dear Marj :
"This is to confirm our telephone conversation
of August 23, 1977 wherein I informed you that St.
John's Lutheran Hospital will continue to pay your
salary for two weeks until September 6, 1977 at
the usual rate.
"I sincerely regret having to terminate your
services. However, your untimely refusal to
perform customary and needed services puts me
in a position where I have few viable alternatives.
"I wish you the very best in all future
endeavors and I will pray that God leads you in
a direction in which you can perform satisfactorily
and grow as an individual within the limits of
your conscience.
"Sincerely,
"Dan Wigart"
No request was made by the hospital, nor by the person
desiring sterilization, that Marjorie Swanson state in
writing her grounds for refusal. At the trial, when asked
upon what basis she did not wish to participate in the tubal
ligation, she replkcl, "on moral and religious grounds".
After her discharge, appellant was paid by the hospital
from August 23, 1977 through September 6, 1977 representing
two weeks pay.
On Wednesday, August 24, 1977, Wigart, in his office,
told Nurse Marlys Mongan, an employee of the hospital, that
the dismissal of Marjorie Swanson was upsetting to him
"because in the last three months he thought Marge had
really come along as being a good team member".
On Wednesday evening, August 24, 1977, at a nurses
meeting, Wigart said, "Marge had refused to give anesthetic
for a tubal ligation that was scheduled on Tuesday morning
and that he had no alternative but to give her two weeks
notice." He stated no other reasons for her dismissal.
In a subsequent conversation with Rev. Strom, either on
Thursday,
Thursday, August 25 or/september 1, 1977, Wigart indicated
his feelings toward the state law concerning sterilization.
Rev. Strom testified:
"During those two conversations Dan
Wigart first advised me about his
experience in California. His experience
with a union and then went into the
idea that he changed his mind about the
going for the union doings, and that
he now was very conservative and certainly
was not union minded. And he saw the
state law in the same category, and
that it was his job to not let unions
or state laws interfere with the operation
of the hospital. "
Marjorie Swanson filed her complaint against the
hospital on September 13, 1977, alleging that she had
been discharged because of her refusal to participate in
the sterilization procedure. Defendant filed its answer
on November 22, 1977, and trial was had before the court,
sitting without a jury on February 15, 1978. On April 5,
1978, the court entered its findings of fact and conclusions
of law ruling against plaintiff Swanson. On April 11, 1978,
Swanson moved to amend the findings of fact and conclusions
of law and judgment or in the alternative for a new trial
and these motions were denied on April 13, 1978. Timely
notice of appeal was filed on April 17, 1978.
Swanson presents four issues for review:
1. The District Court finding that Swanson was an
"employee of questionable value" is irrelevant and against
the evidence.
2. The District Court erred in concluding that
Swanson, having participated in sterilization procedures
in the past was precluded from refusing to participate
on August 22, 1977.
3. The District Court erred in concluding that
Swanson's rights under the conscience statute are outweighed
by her employer's necessities, and her inability to
maintain herself as an effective employee.
4. The District Court erred in holding that Swanson
was required to cite her reasons for nonparticipation
of the sterilization procedure at the time of her refusal.
THE ISSUE THAT SWANSON WAS "AN EMPLOYEE - QUESTIONABLE
- - OF
VALUE "
In its finding no. 5, the District Court found that
Swanson was an employee of "questionable value" to the
hospital for several reasons, including (a) when Swanson did
not get the raise she expected, she did not talk to the
administrator "for a day" and informed the administrator
that he could find another anesthetist; (b) that Swanson
abrasively handled a situation involving blood supplied from
the hospital laboratory outside of the scope of her duties,
causing disharmony; (c) Swanson argued about proceeding
with a tonsillectomy procedure in such a manner as to upset
the physician and cause disharmony; (d) it was constantly
necessary for the administrator to assure Swanson that she
was a "team member" capable of holding up her end of the
hospital work; (e) the hospital had difficulty with Swanson
because she made excessive demands, had difficulties with
other employees, failed to recognize authority, refused to
stay with patients recovering from anesthesia and naintained
outdated drugs; and (f) in order to effectively operate a
hospital, it is necessary that harmony prevail and that the
staff act as a team and that Swanson did not so act.
All of the foregoing reasons utilized by the District
Court to determine that Marjorie Swanson was an employee of
questionable value were irrelevant, because they were outside
of or not included in the August 23, 1977 letter of Wigart
to Swanson stating the reasons for her discharge. The
letter had been delivered in accordance with the demand of
the discharged employee. Under section 41-1311, R.C.M.
1947, now section 39-2-801 MCA, upon such demand, the employer
must furnish to the discharged employee a "full, succinct and
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complete reason of discharge". The letter of August 23,
1977 was the employer's compliance with that statute. The
writing required of the employer by former section 41-1311
is known as a "service letter" (51 C.J.S. Labor Relations,
815, p. 588). A statute such as former section 41-1311
becomes a part of any employment contract entered into by an
employer and an employee in the State of Montana. Brinks
Inc. v. Hoyt (8th Cir. 1950), 179 F.2d 355, 358. The
wording of such service letter statutes varies from state to
state, but generally it is held that such a statute requires
valid, clear and true reasons for the discharge, or a statement
of the "real, honest and factual" reasons. Cumby v. Farmland
Industries, Inc. (Mo.App. 1975), 524 S.W.2d 132, 135.
Where, as in Montana, the purpose of the statute is to
prevent "blacklisting", it is our duty to interpret former
section 41-1311 requiring a "full, succinct and complete"
statement to mean exactly what it says. Therefore, in the
case at bar, the only reason which could be considered by
the District Court was the reason set forth in the letter of
August 23, 1977, her "untimely refusal to perform customary
and needed services." The other reasons found by the District
Court that made the employee one of questionable value were
irrelevant because those reasons were not contained in the
August 23, 1977 letter defining the reasons for her discharge.
Moreover, the finding by the District Court of other
reasons for her discharge not set out in such letter are not
supported by the evidence. The finding that Marjorie Swanson
did not get the raise she expected in April 1977, that she did
not talk to the administrator and that she informed him he
could find another anesthetist, is based on evidence to
which an objection was sustained by the District Court
during the trial. It is not a part of the record.
The clear weight of the evidence relating to the
situation involving blood from the laboratory is on
Marjorie Swanson's side. The attending physician, in a
surgical procedure, had ordered whole blood and instead,
the laboratory sent packed cells. Because she objected
that the laboratory was not following the physician's
orders, eventually the laboratory began sending whole blood
as ordered. Her objection may have caused disharmony
with the laboratory, but she felt it was within her
professional competence to alert the staff about the
problem. She is not to be blamed for alerting the
hospital to a disregard of the doctor's orders.
The finding relating to the tonsillectomy procedure
is again not based on the evidence. In this case, the
patient had an elevated temperature and as an anesthetist,
she refused to be responsible for administering anesthetic
to a patient in that condition. This was completely
within her competence. When she refused to go along with
that procedure unless the hospital would accept the
responsibility, the administrator of the hospital
refused to accept it, under the undisputed evidence.
Moreover, these incidents all occurred in October
or November 1976, except for her pay raise dispute which
occurred in April 1977.
As to the general findings of the court that Marjorie
Swanson made excessive demands, had difficulties with
other employees, failed to recognize authority, refused to
stay with patients recovering from anesthia, and maintained
outdated drugs, none of these are supported by the evidence.
Her only demands related to her wage negotiation; the only
employee of the hospital appearing to testify, testified in
her favor; Swanson recognized the authority of the admini-
strator and of the doctors by becoming a good team member;
and the questions with respect to patients recovering from
anesthia and maintaining outdated drugs were refuted by her.
No other evidence was produced of any kind by the hospital
to indicate that answers to the line of questioning addressed
to her on those points were otherwise than what she answered.
Finally, the finding that Marjorie Swanson was not a
good "team member" is against the clear weight of the evidence.
Marjorie Swanson testified that Dan Wigart had told her that
she was a good employee, and a good team member; on the day
of her firing, Dan Wigart told Rev. Strom, concerning her
job performance, that during the past few months she had
done a fine job and that they had no complaints, and that
she was becoming a good team member. Marlys Mongan, a
fellow employee, testified Dan Wigart had told her that in
the three months he thought that Marge had really come
along as a good team member. But the most telling evidence
is the testimony of the administrator himself who said:
"Q. During the summer of 1977, say
from May, 1977, until the time of
Marge Swanson's discharge, did you
tell Marge Swanson that she was really
a member of the team?
"A. Yes, I did.
"Q. Did you tell her this on more than
one occasion?
"A. Yes, I did.
"Q. During the summer of 1977, did you
ever tell Marge Swanson that she was a
good employee?
"A. Yes, I did.
"Q. Did you tell Marge Swanson that
she was a good employee on more than
one occasion?
"A. Yes.
"Q. During the summer of 1977, did
you ever tell Marge Swanson that she
was doing good work?
"A. Yes, I did."
When viewed against the state of the record, the
finding that Marjorie Swanson was not a good "team
member" cannot stand.
Finally, however, the findings of the District Court
citing other reasons for her discharge cannot stand in
the face of the overwhelming evidence that the single and
only reason for her discharge was her refusal to parti-
cipate in a tubal ligation. In addition to all of the
events and actions by the administrator surrounding plaintiff's
discharge that we have set forth above in stating the facts
of this case, there is the testimony of the admini-
strator - - - participated - - sterilization
that had she in the
procedure, she would --- discharged.
not have been Therefore,
regardless of any other reasons that may have existed
for her discharge, and had they existed, it is nevertheless
true that she was discharged on August 23, 1977, for her
refusal to participate in a tubal ligation, a sterilization
procedure. Her discharge constitutes a violation of
former section 69-5223.
Another factor in this connection is that in April 1977
the contract of employment of Marjorie Swanson was renewed.
The renewal took place after the events which are now
claimed as reasons for her dismissal. Not only was her
contract renewed, but she was given a substantial raise of
$1,000 (true, she had demanded more). Her renewal in that
manner, without warning of the necessity of improvement, or
any indication of dissatisfaction with her past services,
shows that there is little substance to the now claimed
reasons for her discharge.
Where there is no substantial basis for District Court
findings and if a clear and satisfactory showing is not made
to support the findings, this Court will set such findings
aside. Magelssen v. Mouat (1975), 167 Mont. 374, 538 P.2d
1015, 1019; Kasala v. Kalispell Pee Wee Baseball League
(1968), 151 Mont. 109, 439 P.2d 65, Judson v. Anderson
(1945), 118 Mont. 106, 165 P.2d 198.
Both parties cite the United States Supreme Court case
of Mt. Healthy City School District Board of Education v.
Doyle (1977), 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471, in
support of their positions. Our examination of this case
leads us to the conclusion that it bolsters Marjorie Swanson's
case. In Mt. Healthy, Doyle an untenured teacher, had
previously been involved in an altercation with another
teacher and in arguments with cafeteria employees, swearing
incidents with students, the making of obscene gestures,
and had conveyed through a telephone call to a local radio
station, the substance of a new school rule relating to the
dress code of teachers. Thereafter, adopting a recommenda-
tion from the superintendent, the School Board
advised respondent that he would not be rehired, citing
his lack of tact in handling professional matters with
specific mention of the radio station and the obscene
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gesture incident. Doyle brought an action against the
School Board for reinstatement or damages claiming that the
refusal to rehire him violated his rights under the First
and Fourth Amendments. The Federal District Court found
that the telephone call was clearly protected under the
First Amendment and that because it played a substantial
part in the School Board's decision not to rehire Doyle,
Doyle was entitled to reinstatement with back pay. The
District Court was affirmed by the court of appeals, Doyle
v. Mt. H e a l e City School District Board of Education (1975)~
529 F.2d 524. The United States Supreme Court vacated the
decision and remanded the case upon the ground that the
constitutionally-protected conduct may not have played a
substantial part in the decision not to rehire the teacher
and amounted to a constitutional violation justifying remedial
action. The Supreme Court required that the District Court
should go on to determine whether the Board of Education had
shown by a preponderance of the evidence that it would have
reached the same decision even in the absence of protected
conduct of the teacher. 429 U.S. at 287.
Applying the rationale of the Mt. Healthy decision to
the case at bar, it is clear from the testimony of the
administrator, Dan Wigart, that Marjorie Swanson would not
have been discharged in the absence of her refusal to
participate in tuba1 ligations, which is protected conduct
under former section 69-5223. There is no question in this
case that the claimed reasons found by the District Court
were not sufficient in August 1977 to bring about her
discharge, as far as the employer was concerned; there is
also no question that her refusal to participate in the
sterilization did bring about her discharge. As a matter of
fact, under the rationale of Mt. Healthy, once Marjorie
Swanson established that her discharge was brought about in
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substantial part by her refusal to participate in the
sterilization, it then became the burden of the hospital to
prove by a preponderance of the evidence that it would have
discharged her without the exercise of her protected conduct.
The hospital did not meet this burden under the state of the
record.
SWANSON'S PARTICIPATION - -
IN PAST STERILIZATIONS
The second issue we discuss is whether Marjorie Swanson
is precluded from refusing to participate in sterilization
procedures by reason of her past participation in such
procedures. The hospital argues that because she had
participated in the past, her refusal on August 22, 1977 to
participate further demonstrated she had "flexible" religious
principles and scruples. Because we are interpreting this
statute for the first time and as far as we can determine,
no other court has interpreted such a statute, we have no
guidelines by way of legal precedent on this argument.
Former section 69-5223 makes no differentiation with respect
to the right of refusal and it is "unlawful to interfere or
attempt to interfere with the right of the refusal authorized"
by the section, Given the propensity of the human conscience
to define its own boundaries and the fact that such boundaries
might be widened or limited by experience, it seems natural
that a person's concept of the propriety or morality of a
procedure or situation might change from time to time. The
right given by the statute is unqualified, irrespective of
past participation.
WHETHER --- TO REFUSE - OUTWEIGHED - -
THE RIGHT IS BY OTHER
CONSIDERATIONS
The third issue that we address relates to the conclusions
of law adopted by the District Court. In both of these
conclusions, the District Court determined that Swanson's
right to refuse to participate in sterilization was "outweighed"
by considerations outside the scope of her conscience.
The first conclusion of the District Court was that the
right of refusal to participate in sterilization was "far
outweighed" by the rights of the hospital under the circumstances
of this case to maintain its standards as an effective
employer and operator of the only hospital in an isolated
geographic area. The District Court bases this conclusion
upon its findings that substitute nurse-anesthetists available
to replace Swanson must be procured from Bonners Ferry,
Idaho, a 55 mile distance or Kalispell, Montana, a 90 mile
distance; that such substitutes are employed at other hospitals
and available only when their schedules do not conflict;
that continual arrangements for substitutes are unacceptable
to the hospital because of traveling and scheduling difficulties;
that uncertainty results in the hospital as to when a sterilization
procedure might be accomplished, that are detrimental to
patients; and that the cost of substitutes is greater, and
is an additional burden to the hospital and to the hospital
patients.
By so concluding, the District Court reads into former
section 69-5223 provisos that the legislature itself did not
see fit to include. -
Instead, the legislature said, "All
persons shall have the right to refuse . . . to participate
in sterilization . . ." The statutory right is unqualified,
and it may not be qualified or limited by the District Court
on other considerations.
It is noteworthy that the hospital does not attack the
validity or constitutionality of section 69-5223. By accepting
the statute as constitutional, the hospital must accept the
statute in the way it is written, which in this case means
it applies to "all persons" irrespective of their geographic
location and the discomfitures that might result from the
exercise of the statutory right.
Secondly, the District Court concludes that the right
of Swanson under the conscience statute is "far outweighed"
by her inability to maintain herself as an effective employee
of the defendant. We assume this means that by exercising
her right of refusal, the employment duties that Marjorie
Swanson would ordinarily perform in the operating room must
be handled by someone else in sterilizations and therefore
she is not an "effective employee". Again, former section
69-5223 admits of no such limitation or qualification, nor
may the statutory rights of Marjorie Swanson be so weighed
because to do so would emasculate her statutory rights.
WHETHER EMPLOYEE MUST CITE MORAL - RELIGIOUS BELIEFS
OR
AT - - - OF REFUSAL-
- THE TIME
The fourth issue relates to the finding of the
District Court that on August 22, 1977, when Marjorie
strator
Swanson informed the admini/ that she would not participate
in the tuba1 ligation, she "did not cite moral or religious
beliefs as controlling her at that time". Aside from the
overwhelming evidence that all parties knew at the time why
she was refusing to participate, the finding is irrelevant.
Under former section 69-5223, she was not required to state
her reasons unless "requested by [the] hospital". No such
request occurred here. Moreover, if requested, under the statute
she could refer generally "to the grounds of religious
beliefs and moral convictions". She did this the only time
she was asked, during the trial before the District Court.
Even upon request, under the statute, she is not required to
state the precise commandment, dogma, or tenet that leads to
her refusal. The intent of the legislature in so providing
is manifest: a person's conscience about sterilization need
not be related to any particular religion, cult, or sect,
but may be a part of the person's indefinable concept of the
an
natural law, not easily explained inh-B-c fashion.
In like manner, the finding of the Court that neither
party may have been aware of the existence of the statute at
the time is also irrelevant. If "ignorance of the law is no
excuse", neither is it an escape hatch.
UNTIMELINESS - - REFUSAL
OF THE
There is but one remaining factor to discuss with
respect to her refusal, that is whether the exercise of that
refusal by her was untimely. This is a legitimate issue to
examine because it is a ground within the Wigart letter of
August 23, 1977, giving the hospital's reason for her
discharge. The District Court made no finding or conclusion
regarding this factor, except to note that the tuba1 liga-
tion had been scheduled by a member of the medical staff on
August 10, 1977 for 8:00 a.m. on August 23, 1977 and that on
August 22, 1977 at approximately 10:OO a.m. Marjorie Swanson
informed the hospital's Nigart of her refusal.
Upon being so informed, the hospital administrator did
not immediately begin to seek a nurse-anesthetist substitute,
although he admits that when he was first informed, he found
in her a "sense of finality". Instead he hoped to talk
her out of it, apparently, by convincing her that she was
not "participating" in the sterilization if she did not
wield the instrument. Because of - requested delay
his
in her decision, she did not finally inform him until
approximately 7 : 0 0 p.m. In spite of this, however, he was
able to obtain the services of a nurse-anesthetist from
Bonners Ferry, and the surgery went on as scheduled.
Thus, there was no evidence in the record which would
support a finding of untimeliness. Sterilization is an
elective procedure, at least in this case. There is no
showing in the evidence that the hospital was unduly
prejudiced, nor the patient was endangered. The attending
doctor testified over objection that in his opinion such
notice of refusal would not be timely unless given - -
at the
commencement - - employment. This obviously must be
of the
rejected because it would lead to the very recrimination
that former section 69-5223 was established to prevent.
In light of the record therefore, we have no occasion here
for us to determine whether in a proper case an untimely
notice might outweigh the statutory right of a person to
refuse to participate in a sterilization procedure.
CONCLUSION AND DISPOSITION
We find therefore, that Marjorie Swanson, having a
statutory right to do so, validly refused to participate
in the sterilization procedure. Having done so, she was
entitled to the further protection of the statute that
her refusal should not be a consideration in respect to
staff privileges nor a basis for any discriminatory, dis-
ciplinary or other recriminatory action against her. Her
firing because of her refusal is exactly the kind of
recrimination that is countermanded by the conscience
statute.
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She would be entitled to reinstatement to her position
provided that the term of her employment contract would have
continued to the present time. However, it was Marjorie
Swanson's contention that her employment by the hospital was
for a period of one year, from April 1977 through April
1978. Since that time has passed, we cannot order that she
be reinstated to her position.
Under section 5 0 - 5 - 5 0 4 ( 2 ) MCA, she is entitled "to
monetary damages for injuries suffered". It is the function
of the District Court to determine the amount of and kind of
monetary damages to which she is entitled.
Reversed and remanded to the District Court with
instructions to undertake such further proceedings as are
necessary to enter a judgment in favor of Marjorie Swanson
and to determine the damages she has sustained.
Justice
Mr. J u s t i c e John Conway H a r r i s o n d i s s e n t i n g :
For p u r p o s e s o f t h i s d i s s e n t , I w i l l d i s c u s s t h e i s s u e s
i n t h e o r d e r p r e s e n t e d by a p p e l l a n t .
I do n o t q u a r r e l w i t h p l a i n t i f f ' s a s s e r t i o n t h a t , under
Montana l a w , a l l p e r s o n s have t h e r i g h t t o r e f u s e t o p a r t i -
c i p a t e i n a s t e r i l i z a t i o n because of r e l i g i o u s b e l i e f s o r
moral c o n v i c t i o n s . However, s e c t i o n 69-5223 ( 2 ) and ( 3 ) ,
R.C.M. 1947, now s e c t i o n 50-5-504 and -505 MCA, i s i n v o k a b l e
only i f o n e ' s r e f u s a l t o p a r t i c i p a t e is, i n t h e s t a t u t o r y
l a n g u a g e , " b e c a u s e of r e l i g i o u s b e l i e f s o r moral c o n v i c -
tions." H e r e , t h e r e a r e a number of i n c o n s i s t e n c i e s i n
p l a i n t i f f ' s position.
While i t i s t r u e t h a t o n e need n o t h o l d r e l i g i o u s
b e l i e f s o r moral c o n v i c t i o n s f o r a s p e c i f i e d p e r i o d of t i m e
b e f o r e e n j o y i n g t h e p r o t e c t i o n of t h e s t a t u t e , i n t h e s e
circumstances r e l i a n c e on t h e s t a t u t e s t r i k e s a d i s c o r d a n t
note. For t h e s i x y e a r s p r i o r t o her termination, p l a i n t i f f
p a r t i c i p a t e d i n 20 s t e r i l i z a t i o n s w i t h o u t o b j e c t i o n , i n c l u d -
i n g s i x such operations i n t h e year p r i o r t o t h e s e events.
A l s o , b e i n g g r e a t l y u p s e t , as p l a i n t i f f t e s t i f i e d s h e w a s by
t h e August 19 o p e r a t i o n , i s a p h y s i c a l and e m o t i o n a l reac-
t i o n , b u t n o t a r e l i g i o u s b e l i e f o r a moral conviction,
Assuming arguendo, t h a t a p l a i n t i f f ' s r e f u s a l t o p a r t i c i p a t e
i s grounded i n r e l i g i o u s b e l i e f s o r moral c o n v i c t i o n s ,
p l a i n t i f f t e s t i f i e d a t t h e h e a r i n g s o as t o b e l i e t h a t
assumption. She t e s t i f i e d t h a t s h e d o e s n o t have any o b j e c -
t i o n t o a d m i n i s t e r i n g a n e s t h e s i a f o r a n o r d i n a r y D&C.
T h i s m e r i t s some e l a b o r a t i o n i n l i g h t of p l a i n t i f f ' s
a t t e m p t t o d i s c o u n t h e r own t e s t i m o n y i n t h i s r e g a r d . Her
t e s t i m o n y was t h a t s h e would have no o b j e c t i o n t o admin-
i s t e r i n g a n e s t h e s i a f o r a n o r d i n a r y D&C. I n her reply
b r i e f , s h e a c c u s e s r e s p o n d e n t of " m i s u n d e r s t a n d i n g " t h e
n a t u r e and u s e s of a D&C and states t h a t t h e u s e o f a D&C
f o r a t h e r a p e u t i c a b o r t i o n i s " r e l a t i v e l y minor" compared t o
o t h e r o r d i n a r y u s e s o f D&C.
Respondent h o s p i t a l asserts t h a t a D&C, a s performed a t
t h a t hospital, i s a therapeutic abortion. P l a i n t i f f had
g i v e n t h e a n e s t h e t i c i n o t h e r D & C 1 s which a p p a r e n t l y w e r e
t h e r a p e u t i c a b o r t i o n s and which s h e , a s a m e d i c a l p r a c t i -
t i o n e r , u n d e r s t o o d t o be j u s t t h a t .
P l a i n t i f f t e s t i f i e d s h e would n o t o b j e c t t o g i v i n g t h e
a n e s t h e t i c f o r a n o r d i n a r y D&C, which c e r t a i n l y may be
therapeutic abortion. I f s h e were u p s e t by t h e D&C, t h e n
h e r r e f u s a l t o p a r t i c i p a t e i n any more D & C 1 s would b e
understandable; b u t t h a t apparently i s n o t her p o s i t i o n .
Another b a f f l i n g i n c o n s i s t e n c y i s p l a i n t i f f ' s r e f u s a l
t o p a r t i c i p a t e i n one s u r g i c a l procedure, s t e r i l i z a t i o n ,
b a s e d on e x p e r i e n c e w i t h a t o t a l l y d i f f e r e n t s u r g i c a l pro-
c e d u r e , d i l a t i o n and c u r e t t a g e . I t would b e l o g i c a l l y
consistent for plaintiff t o refuse t o participate i n other
D & C 1 s , b u t her r e f u s a l t o p a r t i c i p a t e i n a t o t a l l y d i f f e r e n t
s u r g i c a l p r o c e d u r e : makes a s much s e n s e as s a y i n g , "Because
I had a bad e x p e r i e n c e w i t h a t o n s i l e c t o m y , I w i l l n o t d o
any more appendectomies."
P l a i n t i f f r e s p o n d s t h a t one need n o t h o l d h i s b e l i e f s
o r convictions f o r a p a r t i c u l a r period of t i m e before rea-
l i z i n g t h e p r o t e c t i o n o f t h e s t a t u t e , and t h a t o n e need n o t
b e aware o f t h e e x i s t e n c e of t h e s t a t u t e t o e n j o y i t s pro-
tection. Both c o n t e n t i o n s a r e t r u e , b u t t h e y do n o t m e e t
t h e p r i o r problem--was s h e r e l y i n g on t h e s t a t u t e a t t h e
t i m e of these events, o r i s the r e l i a n c e an after-the-fact
means t o g e t t i n g r e i n s t a t e d ?
P l a i n t i f f ' s second argument i s i m p r o p e r l y advanced.
Respondent d o e s n o t c o n t e s t t h e c o n s t i t u t i o n a l i t y of t h e
s t a t u t e i n q u e s t i o n , and t h e i s s u e was n o t p r o p e r l y p r e -
s e r v e d i n t h e lower c o u r t p r o c e e d i n g s .
To d e a l w i t h t h e t h i r d and f o u r t h arguments, a r e c i t a -
t i o n of c e r t a i n of t h e testimony presented during t h e hearing
i s necessary. The D i s t r i c t C o u r t d e t e r m i n e d t h a t " P l a i n t i f f
had been a n employee o f q u e s t i o n a b l e v a l u e t o Defendant",
o f f e r i n g t h e f o l l o w i n g r e a s o n s i n s u p p o r t of i t s c o n c l u s i o n .
R e f e r e n c e w a s made t o a n i n c i d e n t d u r i n g which p l a i n t i f f ,
who n e g o t i a t e d h e r own s a l a r y w i t h t h e h o s p i t a l a d m i n i s t r a -
t o r , would n o t t a l k w i t h him f o r "some p e r i o d of t i m e "
( a c t u a l l y , one day) a f t e r b e i n g r e f u s e d t h e s u b s t a n t i a l
r a i s e s h e had r e q u e s t e d . I n another episode, p l a i n t i f f
q u e s t i o n e d a d e l i v e r y made by t h e h o s p i t a l l a b o r a t o r y p e r -
sonnel. I n t h a t i n c i d e n t , p l a i n t i f f became e m b r o i l e d i n a n
argument w i t h o n e of t h e l a b p e r s o n n e l . Another i n c i d e n t
t o which t h e D i s t r i c t C o u r t a l l u d e s i s t h a t i n which p l a i n -
t i f f refused t o administer a n e s t h e t i c s f o r a tonsilectomy
when t h e p a t i e n t had a n e l e v a t e d t e m p e r a t u r e . Plaintiff
r e g i s t e r e d h e r c o m p l a i n t w i t h W i g a r t , t h e h o s p i t a l adminis-
t r a t o r , who c o n c u r r e d i n h e r d e c i s i o n , t e s t i f y i n g t h a t " i n
t h a t p a r t i c u l a r i n s t a n c e t h e s a f e s t a p p r o a c h was t h e b e s t . "
The D i s t r i c t C o u r t a l s o found t h a t " i t was c o n s t a n t l y
necessary f o r t h e administrator t o assure p l a i n t i f f she,
i n d e e d , w a s a ' t e a m member' c a p a b l e of h o l d i n g up h e r end of
t h e h o s p i t a l work." The t e s t i m o n y on t h i s p o i n t i s con-
flicting. P l a i n t i f f t e s t i f i e d t h a t t h e h o s p i t a l adminis-
t r a t o r t o l d h e r s h e was d o i n g a good job and t h a t s h e was a
good t e a m member, p a r t i c u l a r l y d u r i n g t h e t h r e e months
before her termination. The h o s p i t a l a d m i n i s t r a t o r c o r -
roborated t h a t testimony. H i s v e r s i o n , however, i n c l u d e d a n
explanation t h a t he d i d s o t o g i v e p o s i t i v e reinforcement t o
t h e p l a i n t i f f , whom h e b e l i e v e d w a s n o t working a s w e l l a s
he s a i d she w a s . r is e x p l a n a t i o n w a s t o t h e e f f e c t t h a t h e
w a s u s i n g " t h i s team c o n c e p t p o s i t i v e e n f o r c e m e n t w i t h h e r
t o overcome [ c e r t a i n ] d i f f i c u l t i e s " s h e w a s having a t t h e
hospital. H e acknowledges t h a t h e t o l d p l a i n t i f f a number
o f t i m e s t h a t s h e was a good employee and a good team
member and d o e s n o t claim t h a t h e o f f e r e d c r i t i c i s m of h e r
work i n c o n j u n c t i o n w i t h t h e p r a i s e . I t seems f a i r , t h e r e -
f o r e , t h a t she could t a k e t h a t p r a i s e a t f a c e value. After
t h e f a c t , however, W i g a r t i n e f f e c t c l a i m s t h a t h e w a s j u s t
s a y i n g t h a t t o e n c o u r a g e p l a i n t i f f ' s performance t o come i n
l i n e w i t h t h e p r a i s e which s h e w a s g i v e n , a p p a r e n t l y p r e -
maturely .
A s p a r t of t h e r a t i o n a l e f o r t h e same f i n d i n g of f a c t ,
t h e D i s t r i c t C o u r t d e t e r m i n e d t h a t " t h e d i f f i c u l t i e s of
P l a i n t i f f ' s r e l a t i o n s h i p w i t h Defendant c a n b e c h a r a c t e r i z e d
a s making e x c e s s i v e demands, d i f f i c u l t i e s w i t h o t h e r em-
ployees, f a i l u r e t o recognize a u t h o r i t y , r e f u s a l t o s t a y
w i t h p a t i e n t s r e c o v e r i n g from a n e s t h e s i a and m a i n t a i n i n g
o u t d a t e d drugs.'' Making e x c e s s i v e demands r e f e r s t o t h e
i n c i d e n t i n which p l a i n t i f f r e q u e s t e d an inordinately
h i g h pay r a i s e . D i f f i c u l t i e s w i t h o t h e r employees a p p a r e n t l y
r e f e r s t o her r e f u s a l t o administer an a n e s t h e t i c i n t h e
t o n s i l e c t o m y r e f e r r e d t o above and i n a n o t h e r o p e r a t i o n i n
which t h e p a t i e n t had a slow p u l s e . The f a i l u r e t o r e c o g -
n i z e a u t h o r i t y seemingly r e f e r s t o t h e i n c i d e n t i n which t h e
l a b o r a t o r y d i d n o t d e l i v e r t h e blood which t h e d o c t o r had
ordered. A r e f u s a l t o s t a y w i t h p a t i e n t s r e c o v e r i n g from
a n e s t h e s i a r e f e r s a p p a r e n t l y t o p l a i n t i f f ' s q u e s t i o n i n g of
t h e h o s p i t a l p r o c e d u r e whereby one o t h e r t h a n a q u a l i f i e d
m e d i c a l p r a c t i t i o n e r , a r e g i s t e r e d n u r s e , f o r example, would
s t a y w i t h p a t i e n t s r e c o v e r i n g from s u r g e r y . The r e f e r e n c e
t o m a i n t a i n i n g o u t - d a t e d d r u g s i s p u z z l i n g , as t h e r e c o r d i s
d e v o i d of any r e f e r e n c e t o t h i s .
The D i s t r i c t C o u r t d e t e r m i n e d t h a t p l a i n t i f f ' s r e f u s a l
t o p a r t i c i p a t e i n t h e s t e r i l i z a t i o n s c h e d u l e d f o r August 23,
1977, d e s c r i b e d by W i g a r t a s " t h e s t r a w t h a t broke t h e
c a m e l ' s b a c k , " w a s " o n l y t h e l a s t of many problems i n v o l v i n g
P l a i n t i f f , and w h i l e i t w a s t h e i n c i d e n t which gave r i s e t o
t h i s c o n t r o v e r s y , i t was n o t t h e p r i m a r y moving c a u s e of
discharge." This finding i n v i t e s discussion of t h e l e g a l
p r i n c i p l e s a r t i c u l a t e d by t h e United S t a t e s Supreme C o u r t i n
Mt. H e a l t h y C i t y Board of Ed. v . Doyle ( 1 9 7 7 ) , 429 U . S . 274,
97 S.Ct. 5 6 8 , 50 L Ed 2d 471.
Although M t . H e a l t h y i n v o l v e d a c o n t r o v e r s y s u r r o u n d i n g
t h e r e f u s a l t o r e h i r e an untenured t e a c h e r , t h e t e s t a r t i c u -
l a t e d t h e r e i s a p p l i c a b l e t o t h e i n s t a n t case. The t e s t i s
d e s i g n e d t o b e a p p l i e d i n t h o s e c i r c u m s t a n c e s i n which a n
employee, who h a s n o t been r e h i r e d o r i n p r a c t i c a l e f f e c t
discharged, c l a i m s t h a t h i s discharge w a s unlawful because
t h e c o n d u c t which p r e c i p i t a t e d i t w a s c o n s t i t u t i o n a l l y
protected. The i s s u e on which t h e C o u r t f o c u s e d i s w h e t h e r ,
even i f i t w e r e t h e c a s e t h a t t h e employer l e g a l l y c o u l d
have d i s m i s s e d t h e employee had t h e o n e p r e c i p i t a t i n g
i n c i d e n t n e v e r come t o i t s a t t e n t i o n , " t h e f a c t t h a t t h e
p r o t e c t e d conduct played a ' s u b s t a n t i a l p a r t ' i n t h e a c t u a l
d e c i s i o n [ t o t e r m i n a t e ] would n e c e s s a r i l y amount t o a con-
s t i t u t i o n a l v i o l a t i o n j u s t i f y i n g remedial a c t i o n . " 429 U.S.
a t 285. The C o u r t concluded t h a t i t would n o t . The r a -
t i o n a l e was:
"A r u l e of c a u s a t i o n which f o c u s e s s o l e l y on
whether p r o t e c t e d c o n d u c t p l a y e d a p a r t , 'sub-
s t a n t i a l ' o r otherwise, i n a decision not t o
r e h i r e , c o u l d p l a c e a n employee i n a b e t t e r
p o s i t i o n a s a r e s u l t o f t h e e x e r c i s e o f con-
s t i t u t i o n a l l y p r o t e c t e d c o n d u c t t h a n h e would
have o c c u p i e d had h e done n o t h i n g . . . A bor-
d e r l i n e o r m a r g i n a l c a n d i d a t e s h o u l d n o t have
t h e employment q u e s t i o n r e s o l v e d a g a i n s t him
b e c a u s e of c o n s t i t u t i o n a l l y p r o t e c t e d c o n d u c t .
B u t t h a t same c a n d i d a t e o u g h t n o t t o b e a b l e ,
by engaging i n s u c h c o n d u c t , t o p r e v e n t h i s
employer from a s s e s s i n g h i s performance r e c o r d
and r e a c h i n g a d e c i s i o n n o t t o r e h i r e on t h e
b a s i s of t h a t r e c o r d , s i m p l y b e c a u s e t h e pro-
t e c t e d c o n d u c t makes t h e employer more c e r t a i n
of t h e c o r r e c t n e s s of i t s d e c i s i o n . " 429 U.S.
a t 285-86.
A f t e r announcing i n p a s s i n g t h a t a n employer would n o t
b e p r e c l u d e d from a t t e m p t i n g t o p r o v e t h a t q u i t e a p a r t from
t h e p r o t e c t e d c o n d u c t , t h e employee's r e c o r d w a s s u c h t h a t
h e would n o t have been r e h i r e d i n any e v e n t , 429 U . S . at
286, t h e C o u r t announced a t e s t , "one which l i k e w i s e p r o -
tects a g a i n s t t h e invasion of c o n s t i t u t i o n a l r i g h t s without
commanding u n d e s i r a b l e consequences n o t n e c e s s a r y t o t h e
a s s u r a n c e of t h o s e r i g h t s . " 429 U . S . a t 287. The burden
i n i t i a l l y i s p l a c e d upon t h e complaining employee t o show
t h a t h i s c o n d u c t w a s p r o t e c t e d and t h a t t h e c o n d u c t was a
" s u b s t a n t i a l f a c t o r , " o r a "motivating f a c t o r , " i n t h e
d e c i s i o n t o t e r m i n a t e h i s employment. Once t h e employee
c a r r i e s t h i s burden, however, i t i s incumbent upon t h e
employer t o show by a p r e p o n d e r a n c e of t h e e v i d e n c e t h a t i t
would have r e a c h e d t h e s a m e d e c i s i o n even i n t h e a b s e n c e of
t h e p r o t e c t e d conduct. 429 U . S . a t 287.
I t appears, then, t h a t i f a p l a i n t i f f f a i l s t o prove
both t h a t h i s conduct w a s c o n s t i t u t i o n a l l y ( o r a s i n t h i s
c a s e , s t a t u t o r i l y ) p r o t e c t e d and t h a t s u c h c o n d u c t was a
m o t i v a t i n g f a c t o r i n t h e d e c i s i o n n o t t o r e h i r e ( o r as i n
t h i s case, t o t e r m i n a t e ) t h e i n q u i r y i s t h e n ended. The
burden would n o t s h i f t , b e c a u s e i t would n o t have been
c a r r i e d by t h e p l a i n t i f f i n t h e f i r s t i n s t a n c e . Therefore,
t h e f i r s t d e t e r m i n a t i o n must b e whether p l a i n t i f f ' s r e f u s a l
t o p a r t i c i p a t e i n t h e s t e r i l i z a t i o n was i n f a c t s t a t u t o r i l y
protected.
The second h a l f of p l a i n t i f f ' s burden h a s been c a r r i e d .
I t i s c l e a r by t h e a d m i s s i o n of t h e h o s p i t a l a d m i n i s t r a t o r
h i m s e l f t h a t t h e r e f u s a l was a m o t i v a t i n g f a c t o r i n t h e
decision t o terminate p l a i n t i f f . Note, however, i t was n o t
the refusal per - which was a s t r o u b l e s o m e
se a s t h e t i m i n g of
the refusal. P l a i n t i f f a l l o w e d less t h a n 2 4 h o u r s " l e a d
time" f o r t h e h o s p i t a l a d m i n i s t r a t o r t o f i n d a n a n e s t h e t i s t
who c o u l d s u b s t i t u t e f o r h e r . T h a t t a s k w a s no e a s y o n e ,
g i v e n t h e g e o g r a p h i c a l i s o l a t i o n and p a u c i t y of q u a l i f i e d
p r a c t i t i o n e r s i n t h e Libby a r e a . Because of f o r t u n a t e
c i r c u m s t a n c e s , t h e o p e r a t i o n d i d go ahead a s s c h e d u l e d , b u t
t h a t a p p e a r e d t o b e a matter of s h e e r dumb-and-blind luck,
r a t h e r t h a n what r e a s o n a b l y c o u l d have been e x p e c t e d .
To r e t u r n t o t h a t i n i t i a l i n q u i r y : d i d p l a i n t i f f prove
t h a t h e r conduct w a s c o n s t i t u t i o n a l l y p r o t e c t e d ? Here a g a i n
we must examine t h e i n c o n s i s t e n c i e s i n t h e p l a i n t i f f ' s
position. She had p a r t i c i p a t e d i n 20 s t e r i l i z a t i o n s i n t h e
s i x y e a r s p r i o r t o her termination; s i x of those operations
were performed w i t h i n t h e l a s t y e a r of h e r t e n u r e . Being
g r e a t l y u p s e t , as p l a i n t i f f a s s u r e d l y w a s , i s , a s respondent
c h a r a c t e r i z e d i t , a p h y s i c a l and e m o t i o n a l r e a c t i o n , b u t i s
n o t a r e l i g i o u s b e l i e f o r moral c o n v i c t i o n . One m i g h t
r e a s o n a b l y a r g u e t h a t t h e r e a c t i o n would n o t have been
f o r t h c o m i n g had i t n o t been f o r a r e l i g i o u s b e l i e f o r moral
c o n v i c t i o n h e l d by p l a i n t i f f , f o r however s h o r t a t i m e .
However, t h e r e i s p l a i n t i f f ' s t e s t i m o n y d u r i n g t h e h e a r i n g
t h a t s h e would p a r t i c i p a t e i n o r d i n a r y D & C t s I even though
t h e o p e r a t i o n which c a u s e d h e r stress w a s i t s e l f a D&C.
T h e r e i s a l s o t h e l o g i c a l l e a p which one must make i n c o r -
r e l a t i n g a r e f u s a l t o a s s i s t i n a s t e r i l i z a t i o n t o an upset-
t i n g experience i n a t o t a l l y d i f f e r e n t s u r g i c a l procedure,
t h e t h e r a p e u t i c D&C. I t i s t r u e t h a t t h e D i s t r i c t Court
made no s p e c i f i c f i n d i n g a s t o whether p l a i n t i f f ' s c o n d u c t
was s t a t u t o r i l y p r o t e c t e d , b u t a f a i r i n f e r e n c e from t h e
f i n d i n g s a s a whole and t h e c o n c l u s i o n s drawn t h e r e f r o m i s
t h a t t h e c o u r t found i t was n o t .
I f i t may b e i n f e r r e d t h a t t h e D i s t r i c t C o u r t found
p l a i n t i f f ' s conduct w a s n o t s t a t u t o r i l y p r o t e c t e d , then t h e
d e t e r m i n a t i o n s made w i t h r e s p e c t t o t h e o t h e r r e a s o n s f o r
p l a i n t i f f ' s t e r m i n a t i o n are u n n e c e s s a r y and i r r e l e v a n t , as
p l a i n t i f f contends. But g i v e n t h a t t h e employer h a s t h e
r i g h t t o p u t on p r o o f d e m o n s t r a t i n g t h a t t h e p l a i n t i f f was
terminated f o r permissible reasons, then findings with
r e s p e c t t o t h a t e v i d e n c e a r e a p p r o p r i a t e l y made.
The o t h e r j u s t i f i c a t i o n s f o r p l a i n t i f f ' s t e r m i n a t i o n
advanced by W i g a r t a r e somewhat t i n n y ; t h e y d o n o t r i n g
true. The r e a s o n which a p p e a r s s o u n d e s t i s t h e one i n v o l v e d
i n t h i s controversy--plaintiff's announcement of h e r i n t e n -
t i o n n o t t o p a r t i c i p a t e w i t h i n 2 4 h o u r s of t h e s c h e d u l e d
operation. There i s no d o u b t t h i s w a s d i s r u p t i v e . The
p a t i e n t had been "prepped" and w a s p h y s i c a l l y and e m o t i o n a l l y
ready f o r t h e operation. Had p l a i n t i f f made h e r o b j e c t i o n s
known on t h e 1 9 t h of August, g i v i n g t h e h o s p i t a l adminis-
t r a t o r a l o n g e r and more r e a s o n a b l e p e r i o d of t i m e i n which
t o s e c u r e a s u b s t i t u t e , i t would be a n e a s y m a t t e r t o con-
c l u d e t h a t h e r t e r m i n a t i o n was u n l a w f u l . Given t h a t s h e
w a i t e d u n t i l t h e p r o v e r b i a l e l e v e n t h hour t o announce h e r
i n t e n t i o n n o t t o p a r t i c i p a t e , however, g o e s t o s t r e n g t h e n i n g
respondent's case.
T h i s , t h e n , i s t h a t on which t h e d e c i s i o n t u r n s . The
D i s t r i c t Court, with i t s superior advantage t o observe t h e
demeanor of t h e w i t n e s s e s , concluded t h a t t h e h o s p i t a l had
ample j u s t i f i c a t i o n i n d e p e n d e n t of t h i s p a r t i c u l a r e v e n t f o r
t e r m i n a t i n g p l a i n t i f f ' s employment. I t i m p l i c i t l y found
t h a t p l a i n t i f f ' s c o n d u c t was n o t s t a t u t o r i l y p r o t e c t e d . It
i s a x i o m a t i c t h a t , where t h e r e i s a c o n f l i c t i n t h e e v i d e n c e ,
t h i s C o u r t w i l l d e f e r t o t h e f i n d i n g s of t h e t r i a l c o u r t ,
which are presumed t o b e c o r r e c t i f s u p p o r t e d by s u b s t a n t i a l
c r e d i b l e evidence. I n a n o n j u r y t r i a l , t h e f i n d i n g s of t h e
D i s t r i c t Court w i l l n o t be reversed on appeal, u n l e s s t h e r e
i s a c l e a r preponderance of e v i d e n c e a g a i n s t t h o s e f i n d i n g s .
See, e.g., Montana Farm S e r v i c e Co. v . Marquart ( 1 9 7 8 ) ,
Mont. , 578 P.2d 315, 35 St.Rep. 631, and c a s e s c i t e d
therein.
T h i s C o u r t may c o n s i d e r o n l y whether s u b s t a n t i a l
c r e d i b l e e v i d e n c e s u p p o r t s t h e f i n d i n g s of f a c t and c o n c l u -
s i o n s of l a w made by t h e D i s t r i c t C o u r t . See, e.g., Kartes
v. Kartes (1977), ,
Mont. - 573 P.2d 191. In this
c a s e I b e l i e v e t h a t i t d o e s and would a f f i r m t h e judgment.
Mr. Chief Justice Frank I. Haswell dissenting.
I concur in the foregoing dissent of Mr. Justice
Harrison.
I would add that in my view, the real issue in this
case is whether plaintiff's refusal to participate in the
operation on "conscience" grounds was bona fide or sham.
Although the District Court did not make an express finding
on this issue, its findings implied the latter. Such implied
finding is supported by substantial, though conflicting>
evidence and warrants affirmance of the District Court
judgment in my opinion.
............................. -
Chief Justice