McDonald v. Department of Environ. Quality

• Decision Date: 17 June 2009
• Docket Number: No. DA 07-0376.,DA 07-0376.
• Citation: 351 Mont. 243,2009 MT 209,214 P.3d 749
• Parties: Janelle McDONALD, Charging Party, Respondent and Appellant, v. DEPARTMENT OF ENVIRONMENTAL QUALITY, Respondent, Petitioner and Appellee.
• Court: Montana Supreme Court

214 P.3d 749

2009 MT 209

351 Mont. 243

Janelle McDONALD, Charging Party, Respondent and Appellant, v. DEPARTMENT OF ENVIRONMENTAL QUALITY, Respondent, Petitioner and Appellee.

No. DA 07-0376.

Supreme Court of Montana.

Argued April 28, 2008.

Submitted June 9, 2009.

Decided June 17, 2009.

For Appellant: Philip A. Hohenlohe (argued), Hohenlohe, Jones, PLLP, Elizabeth Brenneman, Montana Advocacy Program, Helena, Montana.

For Appellee: James M. Madden (argued), Montana Department of Environmental Quality, Helena, Montana.

For Amici Curiae: James P. Reynolds, Reynolds, Motl and Sherwood, PLLP, Helena, Montana, (for American Association of People with Disabilities, Judge David L. Bazelon Center for Mental Health Law, Psychiatric Service Dog Society, and National Spinal Cord Injury Association).

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 Janelle McDonald filed a complaint with the Montana Department of Labor and Industry alleging that her former employer, the Montana Department of Environmental Quality (DEQ), had unlawfully discriminated against her. Following a contested case hearing, the hearing examiner issued a Final Agency Decision granting judgment in favor of McDonald and awarding damages. The Human Rights Commission affirmed.

¶ 2 DEQ then filed a petition for judicial review in the First Judicial District Court, Lewis and Clark County. The District Court reversed the decision of the Human Rights Commission, and McDonald now appeals. For the reasons detailed below, we reverse the District Court's decision and remand for further proceedings.

BACKGROUND

McDonald and her Service Dog, Bess

¶ 3 The Montana Department of Public Health and Human Services (DPHHS) certified McDonald in July 2002 as a person with a disability for the purpose of employment preference. See § 39-30-107, MCA. In so doing, DPHHS determined that McDonald has "a physical or mental impairment" which "substantially limits one or more major life activities" and which "limits [her] ability to obtain, retain, or advance in employment." See § 39-30-103(4), MCA; Admin. R.M. 2.21.1427(2).

¶ 4 McDonald actually has two permanent disabilities, which she had at all times pertinent to this case. First, she has a physical injury to her left leg caused by a fracture received a number of years ago. This injury hinders her ability to navigate stairs, to walk on certain surfaces (particularly hard surfaces, such as concrete floors), and to walk long distances. Second, McDonald suffers from chronic depression and dissociative identity disorder. During bouts of depression, she experiences poor concentration, poor memory, and a sense of isolation. She withdraws from social interaction and, on occasion, misses work. During dissociative episodes, McDonald becomes inattentive and unable to complete tasks. She also loses track of time and her surroundings, and she may have no memory afterward of interactions and events which took place during a dissociative period. Dissociative episodes come on suddenly and without warning, can last a few minutes or several hours, and may occur a few times a week or several times a day.

¶ 5 For assistance in overcoming the limitations caused by her disabilities, McDonald uses a specially trained service dog (an Australian Shepherd) named Bess. She acquired Bess in 1999 from CARES Inc., a nonprofit organization that trains and provides service animals for disabled persons. In this regard, Amici Curiae¹ explain that service animals help many persons with disabilities to achieve greater functional independence. While the classic use of service animals is to lead visually-impaired persons (as guide dogs), Amici report that service animals are used for many other purposes— for example, they may alert hearing-impaired persons to aural stimuli, fetch items or provide stabilizing support for persons with physical impairments, and alert persons with seizure disorders of impending seizures. In addition, service animals are used with increasing frequency by persons with mental disabilities—for example, they may facilitate social interactions for persons with severe social anxiety or assist individuals who experience panic attacks. Similarly, a CARES representative who testified at the contested case hearing explained that CARES trains service dogs to provide both physical support (e.g., retrieving, bracing, pulling a wheelchair, turning light switches on and off, and opening doors) and emotional support (e.g., alerting to a person's mental state and interacting with the person depending on his or her particular need). Service animals are not considered pets; rather, Amici explain, they are specially trained to attend to the specific needs of their owners and, in this respect, are a type of assistive device. Cf. Admin. R.M. 37.90.449(6) ("A service animal is an animal trained to undertake particular tasks on behalf of a recipient that the recipient cannot perform and that are necessary to meet the recipient's needs for accessibility, independence, health, or safety."); see also 28 C.F.R. § 36.104.

¶ 6 Bess is trained to assist McDonald in a number of ways related to McDonald's specific physical and emotional limitations. In particular, Bess provides bracing support (e.g., when McDonald is going up and down stairs) and assists McDonald to stand up if she falls. Bess also provides tactile stimulation in the event of a dissociative episode. Bess senses when an episode is occurring and bumps into or nudges McDonald until she calms down and comes back into reality. Bess also helps McDonald with her depression by preventing McDonald from oversleeping and by keeping McDonald active. In short, Bess increases McDonald's mobility and alleviates barriers to interpersonal interaction.

The Events Leading up to McDonald's Discrimination Complaint

¶ 7 McDonald began working for DEQ as a fiscal officer in August 2002. She informed DEQ that she was a person with a disability and that she needed to utilize Bess at work in order to carry out her job duties. DEQ, in turn, acknowledged that McDonald had a disability and held a meeting with the employees who would be working with her to advise them that McDonald was disabled and would be using a service dog at work.

¶ 8 McDonald's workstation was located in Room 3 on the ground floor of DEQ's building (the Metcalf Building) in Helena, Montana. The floor of Room 3 was carpeted, but the ground-floor hallways were tiled with linoleum flooring. These hallways connected Room 3 to other parts of the building that McDonald regularly traveled to, including the building entrance/exit, the restroom, the elevator, and certain meeting rooms. Thus, in order to reach these locations, McDonald and Bess (who accompanied McDonald) had to travel down the tiled hallways.

¶ 9 Bess was nine years old, healthy, and energetic when McDonald started her job at DEQ. Bess had been trained successfully to walk on a variety of surfaces, including buffed tile floors and slippery surfaces. McDonald noticed, however, that Bess had difficulty maintaining traction on the tile floors of the Metcalf Building. Bess slipped on these floors repeatedly and, as a result, became nervous and reluctant to walk on them.

¶ 10 McDonald contacted CARES and was advised to have Bess practice walking on tile floors. Accordingly, McDonald took Bess into the Metcalf Building on the weekends and to stores such as Wal-Mart and Kmart a couple of times per week. Nevertheless, Bess continued to have difficulty on DEQ's floors. McDonald tried dog booties, but those did not solve the slipping problem; and, in any event, CARES did not recommend using dog booties because they could contribute to health issues, such as fungus. As part of Bess's regular grooming, McDonald trimmed Bess's toenails and the fur between her toes. A veterinarian examined Bess and concluded that her slipping was not due to a medical condition (such as arthritis, long toenails, or age). Likewise, CARES concluded that the slipping was not due to improper handling. CARES had no other suggestions for solving the traction issue aside from altering the surface of the floor.

¶ 11 To that end, McDonald requested that DEQ provide nonskid floor coverings (such as runners or carpeting) in the ground-floor hallways of the Metcalf Building. She first made this request verbally in March 2003 and then reiterated it in writing several times over the next 17 months. However, by the time she left her position with DEQ in August 2004, DEQ had not made a decision about providing this accommodation. The following paragraphs detail the relevant events which transpired during this period.

¶ 12 McDonald explained Bess's situation to her supervisor, Elizabeth Danzer, in March 2003 and requested that DEQ put something down in the hallways to prevent Bess from slipping. Danzer relayed this request to Deputy Director Thomas Livers, who in turn passed it on to the Department of Administration's General Services Division (the agency that addresses maintenance issues in the Metcalf Building and other buildings in the Capitol Complex). It is not clear exactly when DEQ first informed General Services of the issue, but it is clear that General Services was aware of it by mid-July 2003. In this connection, Doug Olson (General Services' facilities manager) sent a letter to DEQ on July 1 stating that General Services would be conducting a facilities condition inventory of the Metcalf Building on July 15 and requesting that DEQ contact him regarding "known maintenance deficiencies and/or special access requirements or procedures." DEQ prepared a list dated July 15, 2003, and titled "Concerns and Special Access Requirements as reported by DEQ." Two of the line items on the list stated as follows:

• Area: "Tiled & Travertine surfaces." Concern: "Slippery conditions exist always but esp when wet." Suggested Fix: "Floor runners or non-slip strips (ground floor especially bad)."

• Area: "Hallways."...