Pannoni v. Board of Trustees

• Decision Date: 18 May 2004
• Docket Number: No. 03-685.,03-685.
• Citation: 2004 MT 130,321 Mont. 311,90 P.3d 438
• Parties: Russell PANNONI, Petitioner and Appellant, v. BOARD OF TRUSTEES, Browning School District No. 9, Steve Smyth, and Ken Werner, Respondents, Respondents and Cross-Appellants.
• Court: Montana Supreme Court

90 P.3d 438

2004 MT 130

321 Mont. 311

Russell PANNONI, Petitioner and Appellant, v. BOARD OF TRUSTEES, Browning School District No. 9, Steve Smyth, and Ken Werner, Respondents, Respondents and Cross-Appellants.

No. 03-685.

Supreme Court of Montana.

Submitted on Briefs February 25, 2004.

Decided May 18, 2004.

For Appellant: Michael Dahlem, Missoula, Montana.

For Respondents: Catherine M. Swift, Gough, Shanahan, Johnson & Waterman, Darcee Moe, Department of Labor and Industry, Attorney General, Helena, Montana.

Justice W. WILLIAM LEAPHART delivered the Opinion of the Court.

¶ 1 Russell Pannoni (Pannoni) appeals the decision of the District Court upholding a Montana Human Rights Commission (the Commission) decision affirming a decision reached at a Department of Labor and Industry (the Agency) hearing regarding Pannoni's employment termination. The Board of Trustees, Browning School District No. 9 (acting through its Board of Trustees, collectively called the School), Superintendent Steve Smyth (Smyth), and District Personnel Director Ken Werner (Werner) cross-appeal the court's denial of costs. We affirm.

¶ 2 The issues on appeal are as follows:

¶ 3 1. Whether the District Court erred in affirming the Agency's conclusion that Pannoni was not a qualified individual with a disability?

¶ 4 2. Whether the District Court erred in affirming the exclusion of medical evidence at the Agency hearing?

¶ 5 3. Whether the District Court erred in affirming the Agency's decision regarding the School's post-termination actions?

¶ 6 4. Whether the District Court erred in denying Pannoni's request to present additional evidence?

¶ 7 5. Whether the District Court erred when it did not award costs to the School, Smyth, and Werner?

Factual and Procedural Background

¶ 8 Pannoni worked as a teacher in Browning School District No. 9 for a total of sixteen years. The School is a public school district which operates a high school, a middle school, three elementary schools, and two rural schools. The School is located in a sparsely-populated, isolated region, near the Canadian border on the Blackfeet Indian Reservation, with few medical and shopping services. Its students are considered "at risk," meaning the School has lower achievement and proficiency levels and higher drop-out rates than are normal or acceptable. The at-risk student population makes teaching more difficult and historically the School loses some teachers during each school year to voluntary termination.

¶ 9 Most School teaching positions are fulltime with the teachers required to work a total of 187 days per year. The School hires teachers to work where assigned with no permanent assignments to individual schools. The School has a difficult time finding certified teachers to fill part-time positions or to serve as substitutes. As a result, the School often has to utilize uncertified substitutes to fill vacancies. Because of the difficulty the School has recruiting qualified teachers, it ordinarily seeks to recruit new teachers and fill openings either before the openings actually exist or during the previous school year. The difficulty recruiting teachers is magnified when the School is forced to fill unanticipated vacancies that occur during the school year.

¶ 10 The School emphasizes that attendance is an essential function of a teacher's job. The School views teacher attendance as critical, especially during the first few and last few months of a school year. Pursuant to a collective bargaining agreement between the teachers and the School, each teacher is allowed fourteen days of sick leave per school year out of which each teacher may elect to take up to ten days of personal leave without justification. The School prefers that its teachers not utilize all their personal leave days each year because of the importance of continuity in instruction for the at-risk student population and because of the difficulty finding qualified substitute teachers.

¶ 11 Pannoni worked for the School as a teacher for many years. Relevant to this case, he worked at Babb Elementary School from 1989 through 1994. In 1994, the School transferred Pannoni to the K.W. Bergen Elementary School in Browning, Montana. Pannoni filed a grievance to fight this transfer because he wished to continue teaching in Babb. In the 1995-1996 school year, Pannoni taught at both Babb and K.W. Bergen. In 1996, Pannoni taught in Babb. During the 1997-1998 school year, Pannoni taught at Babb. Pannoni was transferred to teach at the Browning Middle School (Middle School) for the 1998-1999 school year. Pannoni did not want to leave his position in Babb and especially did not want to teach at the Middle School. The Middle School was overcrowded, the students were much more difficult to work with than the elementary students at Babb, and the environment at the school was stressful for Pannoni.

¶ 12 In September of 1998, Pannoni requested a Family and Medical Leave Act (FMLA) leave based on a medical disability. Pannoni's treating physician, family practitioner Dr. K.J. Taylor, subsequently notified the School by letter that Pannoni had suffered from intermittent depression for years and the transfer to the Middle School worsened his depression so that he was "almost totally dysfunctional." Dr. Taylor recommended the School transfer Pannoni back to the Babb School or he expected Pannoni would become totally disabled.

¶ 13 In October of 1998, the School sent a federal Department of Labor form (a Certification of Health Care Provider form) for Dr. Taylor to complete. The School also wanted a second medical opinion. Dr. Michael Newman, a psychiatrist, provided the second medical opinion. After seeing Pannoni in October of 1998, Dr. Newman concluded that, at that time, Pannoni did not suffer from a serious medical condition that rendered him unable to perform his job duties. Although Pannoni was upset and depressed about his transfer to the Middle School, he was also ready to return to work if he could work at the Babb School. Dr. Newman's conclusion was that Pannoni was not suffering from debilitating depression but that he was instead angry with the School for transferring him. Dr. Newman reported Pannoni had taken prescription antidepressants and/or anti-anxiety medication for only two or three days on two occasions and he had not received counseling.

¶ 14 In October of 1998, Dr. Taylor sent another letter to the School stating that Pannoni's condition was unimproved and suggested that he not work for another month. At this time, a certified substitute teacher was hired to work in Pannoni's place until after Thanksgiving break. In the first week of November, Pannoni notified the School that Dr. Taylor had released him to return to work within a week. Pannoni asked that he be considered for jobs other than that at the Middle School. The School notified Pannoni of the discrepancy regarding Dr. Taylor's letter which stated Pannoni needed another month off and Pannoni's statement that he was ready to return to work within a week. At this time, the School requested a third medical opinion and again requested Dr. Taylor complete the FMLA medical certification form. Pannoni did not have Dr. Taylor complete this form and also did not obtain a third medical opinion.

¶ 15 In the years that followed, Pannoni worked sporadically. He was frequently absent. In eight of Pannoni's last eleven years of employment, he was absent more than his contracted fourteen days of personal and sick leave. In the 1997-1998 school year, Pannoni was absent twenty-three days. He was absent more than eighty-seven days during the 1998-1999 school year. During the 1999-2000 school year, he was absent more than 137 out of 178 work days.

¶ 16 In January of 2000, Pannoni met with Werner and a principal to discuss accommodations which would allow Pannoni to return to work. On numerous occasions, Pannoni notified the School that he was supposed to be well enough to resume his teaching position. However, Pannoni was still often unable to come to work despite medical releases and was unsuccessful at completing the required attendance for a teaching position, either at the Babb School or at the Middle School.

¶ 17 The School adjusted Pannoni's work schedule and student load, attempting to accommodate Pannoni's needs while still providing the necessary continuity and quality of teaching services that the students required and the School demanded. In December of 1999, the School retained Dr. Nathan Munn, an experienced psychiatrist, to evaluate Pannoni. After meeting with both Pannoni and Pannoni's wife, Dr. Munn concluded that Pannoni suffered from a serious health condition, that as of January 2000 Pannoni was incapacitated and unable to work because of his depression, that Pannoni required treatment for his depression, and that a transfer back to Babb would not suffice.

¶ 18 In May of 2000, Smyth recommended that the School terminate Pannoni's employment because of his excessive absences. Until February of 2000, the School continued to provide Pannoni with health insurance benefits. After the School held a hearing, Pannoni was terminated as a teacher on May 23, 2000. On June 6, 2000, Pannoni filed a complaint with the Agency alleging that the School, Smyth, and Werner discriminated against him because of his depression (his disability) "by taking adverse employment action against him because of his disability and retaliating against him." An Agency hearing was held in April of 2001.

¶ 19 The Agency concluded that Pannoni's depression rendered him unable to regularly attend school every day to teach. Pannoni had a history of prolonged, erratic, and numerous absences that was impossible for the School to accommodate. His absences extended well beyond the return-to-work dates that his health care professionals provided. As a result of his "genuine inability to keep showing up every school day[,]" he was rendered an unqualified...