Borges v. Missoula Cnty. Sheriff's Office, DA 17-0355

• Decision Date: 30 January 2018
• Docket Number: DA 17-0355
• Parties: Michael Peter BORGES, Plaintiff and Appellant, v. MISSOULA COUNTY SHERIFF'S OFFICE and Missoula County Detention Facility, Defendants and Appellees.
• Court: Montana Supreme Court

390 Mont. 161

415 P.3d 976

2018 MT 14

Michael Peter BORGES, Plaintiff and Appellant,

v.MISSOULA COUNTY SHERIFF'S OFFICE and Missoula County Detention Facility, Defendants and Appellees.

DA 17-0355

Supreme Court of Montana.

Submitted on Briefs: November 29, 2017

Decided: January 30, 2018

For Appellant: James P. O'Brien, O'Brien Law Office P.C., Missoula, Montana.

For Appellee: Kirsten Pabst, Missoula County Attorney, Matt Jennings, Deputy Missoula County Attorney, Missoula, Montana.

Justice Beth Baker delivered the Opinion of the Court.

¶ 1 Michael Borges worked as a juvenile detention officer at the Missoula County Detention Facility from 2006 to 2015. He informed his supervisors and human resources personnel in May 2014 that he had been diagnosed with Autism

Spectrum Disorder and experienced debilitating hypersensitivity to fragrances. Borges filed a complaint with the Human Rights Bureau (HRB) on October 31, 2014, alleging that the detention facility and the Missoula County Sheriff's Office (collectively, the "County") had illegally discriminated against him based on his disability. The HRB's investigation found no reasonable cause to believe that the County had discriminated against Borges. The Fourth Judicial District Court later awarded summary judgment to the County on Borges's discrimination complaint. Borges appeals. We affirm.

¶ 2 We address the following issues:

1. Whether the District Court erred in declining to consider facts that arose after Borges filed his October 31, 2014 HRB complaint;

2. Whether the District Court erred in concluding that no genuine issue of material fact existed as to the County's alleged failure to engage in an interactive dialogue or to provide a reasonable accommodation.

PROCEDURAL AND FACTUAL BACKGROUND

¶ 3 Borges began working at the detention facility in November 2006. He regularly received good performance reviews, was promoted to a mid-level supervisory position in 2010, and was named the 2010 Missoula County Outstanding Employee of the Year. Borges's duties included supervising staff and overseeing juvenile offenders brought to the facility, among other responsibilities.

¶ 4 Borges was diagnosed in April 2014 with Autism

Spectrum Disorder. His condition manifests with an extreme sensitivity to fragrances such as perfumes, colognes, and scented items. When he encounters strong fragrances, he experiences physical pain, headaches, and anxiety, among other symptoms. Borges's sensitivity to fragrances became increasingly severe throughout 2014 and 2015.

¶ 5 After Borges told his immediate supervisor, Sergeant Gary Evans, of his diagnosis, Evans scheduled a meeting for May 19, 2014, with County human resources personnel Carol Bishop and Patty Baumgart, the human resources director. At the meeting, Borges informed Baumgart and Bishop of his diagnosis and hypersensitivity to fragrances. Baumgart explained that the County wanted to begin a dialogue with Borges about whether his diagnosis had any implications for his work. Baumgart told Borges that the County would explore the possibility of implementing a "fragrance-free" policy at the detention facility. The detention facility had a written policy at the time that stated, "fragrances, if worn, should be moderate."

¶ 6 After this meeting, Bishop worked with Borges to prepare an Americans with Disabilities Act (ADA) reasonable accommodation request. Borges's clinician completed an ADA Release of Information form on June 6, 2014. The clinician stated on the form, "an accommodation for a fragrance-free environment would be important, given Mr. Borges's sensory sensitivities. Other individualized accommodations may be needed but should be determined based on a discussion with Mr. Borges."

¶ 7 On June 17, 2014, Baumgart met with Evans and his supervisors, Commander Jason Kowalski and Assistant Commander Barbara Rodrick, to discuss the possibility of implementing a new fragrance policy at the detention facility. Baumgart suggested that the detention facility pursue a "fragrance-free" policy, and Rodrick agreed to research possible language for such a policy. The next day, Rodrick attempted to call Borges but was unable to reach him. She sent Borges an email stating, "If you still want to meet, I am here next week."¹ Borges responded simply with the word "thanks," but did not pursue a meeting with Rodrick.

¶ 8 In a June 24, 2014 email conversation between Borges and Baumgart, Borges stated, "I need to drop out of this accusative/investigative stage for a while, provided it doesn't grow worse." Borges also stated that he wanted to meet with Baumgart but would be unavailable to do so until September, due to his assignment to night shifts. Baumgart responded, "I will be glad to meet with you at any point that you wish." She also informed Borges that Kowalski and Evans "agreed to look at the fragrance free policy" and that she would "be proposing some version of that same policy for county wide distribution."

¶ 9 Throughout the summer and into the fall of 2014, Borges informed the County of multiple incidents involving his exposure to harsh fragrances while at work. Borges does not dispute that the County responded to each situation by investigating, by encouraging him to report, and by acting to protect Borges from the offensive smells.

¶ 10 The County adopted an amended fragrance policy on October 8, 2014. The amended policy stated, "Perfumes or Colognes are not allowed due to client and co-worker allergies." Borges had no direct input in the language of this policy. Bishop arranged a meeting for October 22 with Borges and his supervisors to discuss the policy. Borges expressed reluctance to attend the meeting and asked to reschedule. Bishop assured him that the purpose of the meeting was simply "to continue the interactive dialogue about accommodation in your work" and urged him to attend. Borges attended the meeting.

¶ 11 At the meeting, Borges stated that the "team"—which included his supervisors and human resources personnel—had done an excellent job working with him on the fragrance policy. But he expressed concerns that the County was not adequately enforcing the policy and that the policy itself was inadequate because it banned only perfumes and colognes, as opposed to all fragrances. The County staff encouraged Borges to excuse himself, when possible, from situations in which he encountered offensive smells and to use his supervisory authority to help enforce the policy when he observed non-compliance. Borges asserts that the County refused to reconsider the language of the policy.

¶ 12 Borges filed a complaint with the HRB on October 31, 2014, claiming that the County discriminated against him by failing to provide a reasonable accommodation, subjected him to a hostile work environment, and retaliated against him by denying him a promotion, in violation of the Montana Human Rights Act ("MHRA" or "Act") and the ADA. The HRB initiated an investigation, which continued until June 2015.

¶ 13 Due to the increasing severity of Borges's sensitivity to fragrances, the County placed him on paid administrative leave on February 10, 2015. The HRB issued its Final Investigative Report on June 15, 2015. It found no reasonable cause to believe that the County discriminated against Borges.

¶ 14 Borges resigned his position on July 16, 2015, citing "ongoing medical disability issues." He filed a complaint in the District Court in September 2015, alleging that the County "discriminated and retaliated against him, through a continuing course of conduct when they refused to accommodate his disability throughout the summer and fall of 2014." In response to the County's motion for summary judgment, Borges also claimed that the County had failed to engage in an "interactive dialogue" regarding an individualized accommodation.

¶ 15 Borges presented evidence to the District Court of the County's alleged ongoing discrimination that arose after he filed his HRB complaint on October 31, 2014. He had not informed the HRB of any of this evidence during its investigation. The District Court granted summary judgment to the County. It limited its consideration to evidence of the County's actions prior to October 31, 2014, reasoning that the MHRA permitted Borges to pursue in District Court only those claims that he had asserted before the HRB. Because Borges had not notified the HRB of the additional facts arising after October 31, 2014, the District Court concluded that the MHRA barred it from considering those facts. The court then concluded that no genuine issue of material fact existed whether the County had failed to engage in an interactive dialogue with Borges, failed to offer him a reasonable accommodation, or retaliated against him. Borges appeals.

STANDARDS OF REVIEW

¶ 16 We review a district court's grant or denial of summary judgment de novo, applying the criteria of M. R. Civ. P. 56. Pilgeram v. Greenpoint Mortg. Funding, Inc. , 2013 MT 354, ¶ 9, 373 Mont. 1, 313 P.3d 839. Summary judgment may be granted only when there is a complete absence of genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Saucier v. McDonald's Rests. of Mont., Inc. , 2008 MT 63, ¶ 33, 342 Mont. 29, 179 P.3d 481. In determining whether a genuine issue of material fact exists, we view all evidence in the light most favorable to the non-moving party. Saucier , ¶ 33. If the moving party satisfies its burden of showing the absence of a genuine issue of material fact and entitlement to judgment as a matter of law, the burden then shifts to the non-moving party to prove, by more than mere denial and speculation, that a genuine issue does exist. Valley Bank v. Hughes , 2006 MT 285, ¶ 14, 334 Mont. 335, 147 P.3d 185. If no genuine issues of material fact exist, a court must determine whether the facts entitle the moving party to judgment as a matter of law. Saucier , ¶ 34. We review conclusions of law for correctness. Valley Bank , ¶ 15.

DISCUSSION

¶ 17 1. W...