Justice Laurie McKinnon delivered the Opinion of the Court.
APPEAL FROM: District Court of the Fifth Judicial District, In and For the County of Jefferson, Cause No. DV-2016-75 Honorable Luke Berger, Presiding Judge COUNSEL OF RECORD: For Appellant: J. Ben Everett, Everett Law, PLLC, Anaconda, Montana For Appellee: Mary W. Tapper, Department of Public Health and Human Services, Office of Legal Affairs, Helena, Montana Filed: /s/_________
Clerk Justice Laurie McKinnon delivered the Opinion of the Court. ¶1 Christopher Lee Alexander (Alexander) appeals an order from the Fifth Judicial District Court, Jefferson County, granting Montana Developmental Center's (MDC) motion for summary judgment. ¶2 Alexander presents the following issue for review:
Did the District Court err in concluding that no genuine issues of material fact existed as to whether MDC engaged in an interactive process with Alexander or provided him with a reasonable accommodation?
¶3 We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶4 Alexander is a former employee of MDC, an intensive, short-term treatment facility for individuals with intellectual disabilities and co-occurring mental illnesses. In 2015, the Montana Legislature passed Senate Bill 411, which required MDC to close in June 2017. 2015 Mont. Laws 2077. ¶5 In 2007, MDC promoted Alexander to shift manager, a position responsible for all aspects of management for one or more residential treatment units at MDC during assigned shifts. Alexander's duties as a shift manager included supervising psychiatric aides, implementing and monitoring client care and programming, and managing living units and classrooms. When necessary, MDC required shift managers like Alexander to physically restrain clients, which sometimes led to physical confrontations. Between 2007 and 2014, ¶9 After exhausting his administrative remedies, Alexander filed a lawsuit against MDC in the District Court claiming MDC discriminated against him due to his physical disability in violation of the Montana Human Rights Act (MHRA). Both parties moved for summary judgment. The District Court ruled in favor of MDC and dismissed Alexander's claim, holding that no genuine issues of material fact existed as to whether MDC engaged in an interactive process with Alexander or provided him with a reasonable accommodation and that MDC was entitled to judgment as a matter of law.
In 2017, House Bill 387 extended MDC's closure date through June 2019 and provided for the continued use of a twelve-bed Intensive Behavior Center. 2017 Mont. Laws 762. During the pertinent events of this case, however, the parties believed MDC would close in June 2017.
STANDARD OF REVIEW
¶10 "We review a district court's grant or denial of summary judgment de novo, applying the criteria of M. R. Civ. P. 56." Borges v. Missoula Cty. Sheriff's Office, 2018 MT 14, ¶ 16, 390 Mont. 161, 415 P.3d 976 (citing Pilgeram v. GreenPoint Mortg. Funding, Inc., 2013 MT 354, ¶ 9, 373 Mont. 1, 313 P.3d 839). Summary judgment may only be granted "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. When assessing whether a genuine issue of material fact exists, we view all evidence in the light most favorable to the nonmoving party. Borges, ¶ 16. If the moving party shows the absence of a genuine issue of material fact and is entitled to judgment as a matter of law, the burden then shifts to the nonmoving party to prove, "by more than mere denial and speculation, that a genuine issue does exist." Borges, ¶ 16 (citing Valley Bank v. Hughes, 2006 MT 285, ¶ 14, 334 Mont. 335, 147 P.3d 185). We review a district court's conclusions of law by determining whether the district court's interpretation and application of the law was correct. Borges, ¶ 16.
DISCUSSION
¶11 When construing provisions of the MHRA, we look to guidance from federal anti-discrimination law under the Americans with Disabilities Act (ADA). Borges, ¶ 33. The MHRA prohibits discrimination in employment because of one's physical or mental disability. Section 49-2-303(1)(a), MCA. Discrimination under the MHRA includes "the failure to make reasonable accommodations that are required by an otherwise qualified person who has a physical or mental disability." Section 49-2-101(19)(b), MCA; see McDonald v. Dep't of Envtl. Quality, 2009 MT 209, ¶ 40, 351 Mont. 243, 214 P.3d 749 ("[A]n employer has a duty to provide a reasonable accommodation to a person with a physical or mental disability if, with such accommodation, the person could perform the job's essential functions."). Reasonable accommodations include, but are not limited to, "job restructuring," "acquisition or modification of equipment or devices," and "reassignment to vacant positions which the employee is qualified to hold." Admin. R. M. 24.9.606(3)(b). "As long as a reasonable accommodation available to the employer could have plausibly enabled a handicapped employee to adequately perform his job, an employer is liable for failing to attempt that accommodation." Humphrey v. Mem'l Hosps. Ass'n, 239 F.3d 1128, 1136 (9th Cir. 2001) (internal quotations omitted); accord Borges, ¶ 35. Moreover, "the duty to accommodate is a continuing duty that is not exhausted by one effort." Dark v. Curry County, 451 F.3d 1078, 1089 (9th Cir. 2006). Nevertheless, "[a]n accommodation that would require an undue hardship or that would endanger the health or safety of any person is not a reasonable accommodation." Section 49-2-101(19)(b), MCA. ¶12 Before an employer takes specific actions to accommodate the employee, "both parties have a duty to assist in the search for appropriate reasonable accommodation and to act in good faith." Mengine v. Runyon, 114 F.3d 415, 420 (3rd Cir. 1997). They must engage in an "interactive process." Mengine, 114 F.3d at 420. In Mengine, the Third Circuit Court of Appeals defined how the duties of both employer and employee work together during the interactive process when the parties have determined reassignment is a potential reasonable accommodation:
[T]he employee has the duty to identify a vacant, funded position whose essential functions he is capable of performing. But we do not suggest that the employee has the burden of identifying an open position before the employer's duty of accommodation is triggered. In many cases, an employee will not have the ability or resources to identify a vacant position absent participation by the employer. Simply put, a disabled employee seeking reassignment will be best served by employer and employee working together to identify suitable positions.
Mengine, 114 F.3d at 420 (citing
Shiring v.
Runyon, 90 F.3d 827, 832 (3rd Cir. 1996)) (internal citations omitted).
¶15 A claim that an employer failed to engage in an interactive process with an employee is "qualitatively different" from a claim that an employer failed to provide a reasonable accommodation.
Borges, ¶ 34. We held in
Borges:
An interactive dialogue violation may be defined as a failure by the employer to communicate with the employee about potential accommodations, whereas a reasonable accommodation violation refers to the employer's ultimate failure to take action that would permit an otherwise-qualified employee to perform his essential job functions.
Borges, ¶ 34 (internal citations omitted). Nevertheless, though these two claims are different, under the MHRA, the requirements for both parties to engage in an interactive process and for the employer to provide a reasonable accommodation are functionally related. Both parties must engage in the interactive process to identify reasonable accommodations to begin with. We will not hold the employer liable for failure to reasonably accommodate the employee where the facts and circumstances indicate the interactive process broke down through the fault of the employee. "Liability for failure to provide reasonable accommodations ensues only where the employer bears responsibility for the [interactive process] breakdown."
Beck, 75 F.3d at 1137. Where the employer "was never able to obtain an adequate understanding of what action it should take, it cannot be held liable for failure to make reasonable accommodations."
Beck, 75 F.3d at 1137 (internal quotations omitted). ¶16 Alexander argues the District Court erred by granting MDC's motion for summary judgment because he demonstrated genuine issues of material fact about whether MDC engaged in an interactive process with him and whether it provided a reasonable
¶20 In his briefs, Alexander claims MDC should be held liable because its act of identifying potential vacant positions did not constitute a reasonable accommodation. Alexander also argues that if any open position he may have qualified for was available to MDC, it should be held liable for failing to reassign him. However, when MDC identified vacant positions and requested further qualification information from Alexander these actions were only one part of a greater interactive process to identify a reasonable accommodation for Alexander—one that required
both parties' interaction. Even if there were open positions available to MDC that Alexander may have qualified for, MDC simply could not determine whether Alexander was qualified or interested in them without his input. Alexander himself hampered the interactive process and prevented MDC from reasonably accommodating him through a reassignment. ¶21 MDC met its obligations to involve Alexander in an interactive process, even if the process was incomplete: Alexander, Shepherd, and Gilmer all discussed and explored potential accommodations; Shepherd and Gilmer considered Alexander's proposed accommodation; and, after finding Alexander's proposed accommodation unworkable, Shepherd and Gilmer offered to work with Alexander to search for a vacant position for reassignment.
See UPS Supply Chain Solutions, 620 F.3d at 1110-11. Although MDC ultimately did not reassign Alexander, the undisputed facts show MDC made a good faith effort to engage in an interactive process with Alexander to identify potential reasonable accommodations. The subsequent breakdown in the interactive process is solely attributable to Alexander.
In Mengine, although the plaintiff brought suit under the Rehabilitation Act of 1973, the case is still helpful for analyzing the requirements for an interactive process and reasonable accommodation under the MHRA due to the similarities and close relationship between the Rehabilitation Act and the ADA. In 1992, Congress amended the Rehabilitation Act to incorporate the standards of several sections of the ADA, including the section defining "reasonable accommodation." Mengine, 114 F.3d at 420. --------
CONCLUSION
¶22 Under the MHRA, we will not hold an employer liable for a failure to reasonably accommodate an employee where the facts and circumstances indicate that the employer made a good faith effort to engage in an interactive process to reasonably accommodate the employee and, through the fault of the employee, the interactive process broke down, preventing the employer from realizing the information needed to proceed. The undisputed facts show MDC made a good faith effort to engage in the interactive process, while Alexander did not. ¶23 Accordingly, we affirm the District Court's decision to grant MDC's motion for summary judgment.
/S/ LAURIE McKINNON We concur: /S/ BETH BAKER
/S/ INGRID GUSTAFSON
/S/ DIRK M. SANDEFUR
/S/ JIM RICE