Alwood v. Ecolab, Inc.

Filing 118

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER. Signed by Judge Susan P. Watters on 3/27/2017. (AMC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION

ROBERT AL WOOD,
CV 14-101-BLG-SPW
Plaintiff,
vs.

FINDINGS OF FACT,
CONCLUSIONS OF LAW and
ORDER

ECOLAB, INC.,
Defendant.

This matter was tried on October 31, 2016 through November 3, 2016 before
Judge Susan Watters, sitting without a jury. Alex Rate of Rate Law Office, P.C.
and Justin Stalpes of Beck, Amsden and Stalpes, PLLC, represented Plaintiff
Robert Alwood. William Mattix of Crowley Fleck, PLLP, and Roy Ginsburg and
Andrew Peters of Jones Day represented Ecolab, Inc. Numerous exhibits were
offered and admitted, and deposition excerpts from Ecolab employees Scott
Salstrand, Katie Bjorkman, Shelly Burgess, Marina Pariseau and Brian Last were
admitted for use in Alwood's case-in-chief. The issues at trial were Ecolab's
liability for disability discrimination and retaliation against Alwood. Having heard
the evidence and reviewed the proposed Findings of Fact and Conclusions of Law
of both parties, the Court now makes the following:

I

FINDINGS OF FACT
I.

Procedural History

1.

Alwood filed this lawsuit on July 17, 2014, in Montana state court.

(Doc. 1-1 ). On August 12, 2014, Ecolab removed the case to the United States
District Court for the District of Montana. (See gen. id).
2.

In his lawsuit, Alwood asserted four claims: a) disability

discrimination; b) retaliation; c) age discrimination; and d) wrongful discharge
under the Wrongful Discharge from Employment Act, Mont. Code Ann. §§ 39-2901, et seq. (Compl. ifif 45-79,Doc. 1-1).
3.

On November 16, 2015, Ecolab moved for summary judgment on

Alwood's claims. (Doc. 22).
4.

In response to Ecolab's Motion for Summary Judgment, Alwood

agreed to dismiss his claim for age discrimination (Count III of Alwood's
Complaint). (Doc. 29). On April 12, 2016, the Court entered an Order dismissing
Alwood's age discrimination claim, but denying Ecolab's Motion in all other
respects. (Doc. 36). Trial was scheduled. (Doc. 76).
5.

On September 7, 2016, Alwood voluntarily dismissed his wrongful

discharge claim (Count IV of his Complaint). (Doc. 75, 76).

2

6.

Alwood's two remaining Counts - disability discrimination and

retaliation - were tried before this Court over four days, beginning on October 31,
2016. (See generally, Trial Tr., Docs. 111-15).
7.

Al wood's case-in-chief lasted approximately two days. (Trial Tr.

516: 1). At the conclusion of Alwood's case-in-chief, Ecolab moved the Court to
dismiss Alwood's claims under the Federal Rules of Civil Procedure. (Id. at
516:5-9, 524: 18-20). The Court ruled that it was unable to grant Ecolab's Motion
in part because it had not yet had an opportunity to review the portions of the
deposition transcripts Alwood had submitted as part of his case-in-chief. (Id. at
536:4-6). The Court took the matter under advisement. (Id.).
8.

Ecolab's defense lasted approximately two more days. (Id. at

993 :20). After presenting its defense, Ecolab renewed its Motion to Dismiss
Alwood's lawsuit. (Id. at 1007:20-23). Again, the Court took the motion under
advisement. (Id. at 1007:25).
9.

Following the conclusion of the trial, the Court ordered the parties to

submit Proposed Findings of Fact and Conclusions of Law. (Id. at 996: 17-20,
1000:4-5).
II.

The Parties
10.

Ecolab is a Delaware Corporation with its principal place of business

in St. Paul, Minnesota. (Final Pre-Trial Order § IV ("Agreed Facts") if 2, Doc. 81 ).

3

11.

Ecolab is a water, hygiene, and energy solutions company, employing

people throughout the state of Montana, the United States, and the world. (Trial
Tr. 115:22-116:11).
12.

Ecolab has several divisions. (Id. at 541 :6-9). The Company's

Institutional Division primarily services the hospitality industry, which includes
hotels, food service, and health care facilities. (Id. at 546:8-13).
13.

The Institutional Division is divided into three regional sales units:

(1) Areas, (2) Districts, and (3) Territories. (Agreed Facts at if 3, Doc. 81). The
Areas, which are managed by Area Managers ("AMs"), encompass Districts,
which are managed by District Managers ("DMs"). (Id.). The Districts are made
up of multiple Territories, each of which is overseen by a Territory Manager
("TM"). (Id.).
14.

The Institutional Division encompasses three geographical regions in

the U.S. - the West, South and North. (Trial Tr. 878: 14-16). The West Region
encompasses the area from Minnesota to the West Coast, as well as Alaska and
Hawaii. (Id. at 878:7-9.) Seven Areas exist within the West Region, one of which
is the Rocky Mountain Area. (Id. at 879:1-5). The Billings District is within the
West Region. (Id. at 879:21-23).

4

15.

There are approximately 5000 employees in Ecolab's Institutional

Division in the U.S. (Id. at 882:23-25). Approximately 1000 of those employees
worked in the West Region. (Id. at 883 :2-4).
16.

The number of Districts in each Area remains relatively constant,

typically between 10 and 12 Districts per Area. (Id. at 883 :8-11 ).
17.

Alwood resided in Billings, Montana and worked for Ecolab. (Agreed

Facts iii! 1, 4, Doc. 81 ).
III.

Alwood's Employment with Ecolab

18.

Ecolab hired Alwood on January 17, 1990. (Id. at iii! 4, 7). Alwood

remained an Ecolab employee until February 6, 2014. Alwood worked in the
Company's Institutional Division for his whole career. (Id.).
19.

In 1998, Ecolab promoted Al wood to the position of DM for the

Billings District. (Id. at iJ 6). The Billings District is a very large Ecolab sales
region located in the Rocky Mountain Area ("RMA"). (Trial Tr. 191 :9-11; 564:418; Ex. 320, Doc. 103-4 at 293). The Billings District includes nearly the entire
state of Montana, as well as parts of northern Wyoming. (Id. 191 :12-24; 581: 1118; Ex. 320, Doc. 103-4 at 294).
20.

The DM is the "most senior position in a District." (Id. at 189:23-25).

As the Billings DM, Alwood was responsible for hiring, leading and managing

5

TMs throughout Montana so that Ecolab could achieve sales and customer
satisfaction goals. (Agreed Fact at ii 8, Doc. 81).
21.

Throughout most of his tenure as the Billings DM, there were ten

territories within the Billings District, each of which had a TM. All ten TMs
reported toAlwood. (Trial Tr. at 191:25-192:3-8).
22.

The DM trains and coaches the TMs on the best ways to manage their

business and their time, meet their personal objectives, install equipment properly,
and develop their overall skills so that they might be promoted to other roles in the
future. (Id. at 552:10-23; 588:3-9). As part of this training and coaching, DMs are
supposed to visit key customers with the TMs, as well as conduct "ride-alongs"
with each TM at least once per month. (Id. at 587:14-17; 588:3-9).
23.

As the Billings DM, Alwood had direct and overall responsibility for

cultivating relationships with Ecolab's customers in the District and ensuring that
Ecolab properly served those customers. (Id. at 586:23-587:9). This included
developing new business, maintaining existing business, and addressing problems
that might arise with customers, something Alwood stated he had to do "daily."

(Id. at 194:17-23).
24.

Al wood described the DM job as "intense," "stressful," and "a

difficult position." (Id. at 195:16-18, 195:19-20, 195:21-22, 554:18-555:1).

6

25.

Throughout Alwood's tenure as a DM, he reported to multiple Area

Managers ("AM"). (Id. at 196:4-7).
26.

Salstrand became Alwood's AM and direct supervisor in 2012. (Id. at

130:7-15). Salstrand was located in Denver, Colorado. (Id.).
IV.

Alwood's Mental Health Issues
27.

In the spring of2013, Alwood began suffering work-related anxiety

and depression. (Id. at 16:5-8; 134:3-7).
28.

As of March 2013, Alwood had not told Salstrand or anyone else at

work about any mental health issues he was experiencing. (Id. at 198:5-8).
29.

On or about March 29, 2013, Salstrand provided Alwood with a

Written Warning regarding certain aspects of Alwood's performance. (Id. at
197:3-6, 13-17; Ex. 111, Doc. 103-2 at 23).
30.

In the Written Warning, Salstrand identified three areas where

Al wood could improve his performance. (Id. at 201 :2-4 and Ex. 111, Doc. 103-2
at 23). This included Alwood's failure to prepare Field Trip letters, meeting
deadlines, and failure to adequately support his TMs. (Id. at 201 :5-6; 202:3-7).
Salstrand was concerned that one of Alwood's recent TM hires had left Ecolab and
that another TM, Terry Eckhard, complained about Alwood's lack of support in the
field. (Id. at 202:8-20, 202:21-24, 203:3-10). Salstrand also advised Alwood that

7

unprofessional, negative, rude, and insubordinate behavior would not be tolerated.
(Id. at 203:21-204:4).

31.

As both Alwood and his wife, Raye Alwood, described in April 2013,

Alwood had a "breakdown." (Id. at 198:2-199:2, 217:7-10, 473:7-15).
32.

In May, 2013, Alwood began seeing Billings-based therapist, Karen

Kietzman. (Id. at 55:12-13). Kietzman diagnosed Alwood with severe depression
and anxiety. (Id. at 16:5-8; 134:3-7). Kietzman's perceptions at that time were
that Alwood's "work satisfaction was decreasing" and he was "concerned about his
future and [his] job security." (Id. at 55:6-11).
33.

Alwood underwent cognitive behavioral treatment as a result of his

depression, but Kietzman did not recommend that he take a leave of absence from
work. (Id. at 17:9-12; 17:19-22).
34.

Kietzman referred Alwood to a medical doctor (Dr. Wagenaar). (Id.

at 220:2-6). On May 17, Alwood told Dr. Wagenaar that he had become
overwhelmed with depression and anxiety. (Id. at. 221: 15-17). Dr. Wagenaar put
Al wood on anti-depressant medications. (Id. at 221 :22-24).
35.

Alwood testified that he was not really able to focus and felt that the

stress he was experiencing was attributable to pressures at work. (Id. at 199:10200:22, 215 :3-5).

8

36.

Alwood's mental health problems worsened during the four-month

period spanning May through August. (Id. at 224:6-10). He felt that he was
"falling into a deeper depression and anxiety due to work and lack of support."
(Id.). His depression was exacerbated because he had to "run his District" by
himself and there were vacancies among the TM positions. Because of the TM
vacancies, he had to spend "many, many, many, many hours and days and weeks"
on the road. (Id. at 225: 11-20).
37.

In early August, Alwood received a Final Written Warning for being

verbally abusive to a vice president in Ecolab's supply chain. (Id. at 209:3-5, Ex.
13, Doc. 103-1at18).
38.

Alwood had not informed Salstrand that he was suffering from severe

anxiety or depression when Salstrand gave him the Final Written Warning. (Id. at
284:3-11).
39.

Three days after receiving his Final Written Warning, Alwood had

another session with Kietzman. (Id. at 226:17-22). At that session, Kietzman
recommended that Alwood stop working. (Id. at 226:23-25, 64: 16-18). She felt
that Alwood's mental health issues were becoming more severe. (Id. at 64:11-15).
Kietzman felt that the problems Alwood was experiencing at work were causing
him "undue stress." (Id. at 64:25 - 65:3).

9

40.

Kietzman prepared a letter to Ecolab dated August 13, 2013,

recommending that Al wood take a leave of absence. (Id. at 227: 10-17; 65:14-17;
66:2-6; Ex. 100, Doc. 103-2 at 9). She stated that Alwood suffered from anxiety
and depression and recommended that Ecolab release Alwood from work and place
him on Short-Term Disability. (Id. at 228:2-5). Kietzman noted that Alwood's
"depression had worsened, even with treatment." (Id. at 68:10-16). Kietzman did
not provide a return to work date. (Id. at 75:4-9; and 228:10-12).
V.

Alwood's Leave of Absence
41.

At the time Alwood went out on leave, the Billings District was the

only district in the RMA meeting the aspirational budget set by Ecolab
management. (Id. at 136:11-15).
42.

Alwood sent Kietzman's letter to Shelly Burgess, a Disability Case

Manager in Ecolab's Human Resources Department. (Id. at 227:24-228:1, 886:1 887: 1O; 889: 1-6). Burgess was responsible for communicating with the employee
going out on leave, answering questions, reaching out to the employee's physician,
providing documentation to the employee, and conducting the requisite follow-up.
(Id. at 886: 13-20).
43.

When Alwood sent Kietzman's letter to Burgess, he did not know

how long he would be out of work. (Id. at 229:2-13). Alwood testified that at the

10

time he went out on leave, Kietzman had not advised him of when he might be able
to return to work. (Id. at 229: 19-22, 230: 1-11 ).
44.

Alwood did not tell anyone in his chain-of-command, including

Salstrand, that he was taking leave. (Id. at 230: 12-15).
45.

After Alwood sent in Kietzman's August 13 letter to Burgess, she told

Alwood to stop working. (Id. at 231 :16-18). She told him she would send him
Ecolab's Short-Term Disability packet, which included Ecolab's Short-Term
Disability Policy. (Id. at 232:13-16, Ex. 200, Doc. 103-3 at 21-23). Alwood
stopped working on August 15, 2013. (Id. at 232: 17-20).
46.

On August 15, 2013, the day Atwood's leave commenced, Burgess

wrote to him and provided him a copy ofEcolab's Short-Term Disability policy.
(Ex. 200, Doc. 103-3 at 21-23).
47.

On page 2 of Ex. 200, following the heading, "Returning to Work,"

Ecolab's policy stated: "Ecolab will make reasonable efforts to reinstate employees
returning from medical leaves into positions of equal status and pay. But
reemployment is not guaranteed." (Ex. 200, Doc. 103-3 at 22; Trial Tr. 339:6340:1).
48.

Ecolab's policy also clarified that "an individualized analysis will be

reviewed for each situation" and "[r]eemployment is dependent on the length of
the leave, whether the date of return is definite or indefinite, successful recovery or

11

rehabilitation from the disability, and availability of a position." (Id.; Trial Tr.
340:9-24).
49.

On August 15, 2013, Burgess provided Alwood the disability

paperwork he needed to complete. (Id. at 234:7-17; Ex. 316, Doc. 103-4 at 215217). In an accompanying letter, she also outlined the information Ecolab would
need for Alwood to commence his Short-Term Disability leave. (Id.) She stated
that his physician should "note the release date of your return to work." (Id. at
235:22 - 236:4). She also advised Alwood, "[i]fyour doctor is unsure of your
return to work date, she or he should provide me, at a minimum, monthly updates."
(Id. at 236:6-10). Alwood knew that he and Kietzman were to provide Ecolab at
least monthly updates regarding when he might be able to return to work, but failed
to tell Kietzman that she needed to provide Burgess with updates regarding his
condition on at least a monthly basis. (Id. at 80:6-17; 236: 11-15).
50.

During the time Kietzman treated Alwood, she completed the required

forms and Al wood sent them in to Ecolab. (Id. at 72: 11-17). Kietzman did not
send any forms or correspondence to Ecolab directly. (Id. at 80:18-20).
51.

After she sent Alwood the Short Term Disability Policy, Burgess also

notified Ecolab Human Resources Representative Katie Bjorkman that Alwood
would be out on leave. (Id. at 886: 1-5; 888: 1-6). Bjorkman, in tum, notified
Salstrand via email that Alwood was out on leave. (Id. at 623:9-:624:22; Ex. 4,

12

Doc. 103-1 at 1-2). In the same email, Bjorkman advised Salstrand that it is a
"best practice" to check in with Alwood throughout his leave and ask about an
expected return to work date. (Ex. 4, Doc. I 03-1 at 1-2). Bjorkman also
forwarded Salstrand Ecolab's "Short-Term Disability Supervisor/Manager Toolkit
(the "Toolkit"), which explained the responsibilities of the employee and his or her
manager while the employee is on Short-Term Disability Leave. (Ex. 4, Doc. 1031 at 1-2; Ex. 30, Doc. 103-2 at 2). As provided in the Toolkit, an employee who
takes leave is responsible for notifying his supervisor of the need for leave. (Ex.
30, Doc. I 03-2 at 2). The Toolkit further advises the supervisor to "maintain
contact with the employee as directed by the HR generalist." (Id.).
52.

An Ecolab employee on Short-Term Disability leave who has been

with the Company for at least ten years, such as Alwood, receives 100 percent of
his or her compensation during the leave period, as well as a continuation of
benefits. (Id. at 903:23-904:6). Ecolab employees are required to use the ShortTerm Disability leave before they seek Long-Term Disability benefits. (Id. at
904: 15-905 :4).
53.

Salstrand e-mailed Alwood on August 15, 2013, wishing him a speedy

recovery. (Id. at 241 :6-10; Ex. I 01, Doc. 103-2 at 10). Alwood did not respond.
(Id. at 629: 17-630: I). Salstrand later called Al wood and left him a voicemail. (Id.

13

at 630:5-17). Alwood did not return Salstrand's call. (Id.) Salstrand did not
attempt to contact Alwood again. (Salstrand Depo. 111 :25-112:4; Doc. 109)
54.

On September 6, 2013, Kietzman and Alwood filled out and sent in

the blank Attending Physician's Statement of Disability form ("SOD") that
Burgess had included with her August 15, 2013 letter to Al wood. (Id. at 81 :4-13;
Ex. 125, Doc. 103-2 at 48).
55.

In the SOD, Kietzman described Alwood's mental impairment as,

"feels demoralized, stressed, anxious, depressed, helpless, unable to feel capable of
doing his job." (Id. at 86:24 - 87:12). She described him as "totally disabled."
(Id. at 253:7-20; Ex. 125, Doc. 103-2 at 48). Kietzman did not provide an

anticipated return to work date in the blank space on the SOD. Instead, she wrote
"unknown," and that his "[r]eturn to work will depend on response to treatment."
(Id. at 88:6-8, 88:24-89:5, Ex. 125, Doc. 103-2 at 48). Kietzman did not provide a

prognosis or length of treatment on the SOD form. (Ex. 125, Doc. 103-2 at 48).
56.

Kietzman invited Ecolab to contact her if it had any questions

regarding Alwood's status, including his return to work capacity. (Ex. 100, Doc.
103-2 at 9). However, Ecolab never contacted Kietzman. (Trial Tr. 26:23-25).
57.

Neither Kietzman nor Alwood had any further direct or indirect

contact with Burgess in September 2013, (id. at 89:22-25; 255:9-12), and

14

Kietzman did not provide any more information to Ecolab during the month of
October 2013. (Id. at 90:1-7).
58.

Alwood sent Ecolab Kietzman's letter stating that Atwood needed to

take leave on August 13, 2013. (Id. at 139:8-11). By August 15, Burgess had
contacted Atwood advising him that his leave request would likely be approved.
(Id. at 139:10-11, 890:7-19, 891:3-6). By the same date, Bjorkman had contacted

Salstrand to inform him that Atwood would be on an indefinite leave of absence.
Id. at 889:10-16. No additional information was provided by Ecolab's HR

Department to Salstrand during August regarding the potential duration of
Atwood's leave. (Id. at 802:14-803:6).
59.

Kietzman continued to treat Alwood during the September and

October time period. (Id. at 90:8-11).
VI.

Alwood's Letter to Ecolab CEO Doug Baker

60.

In the latter part of September 2013, after he had been on leave for

approximately four weeks, Alwood wrote an eight-page letter to Ecolab's CEO,
Doug Baker ("Baker"). (Id. at 255:24-256:4). In it, Alwood included what he
considered the important issues he and Ecolab were confronting at the time the
letter was written. (Id. at 257:8-13). He told Baker that Ecolab was "losing major
accounts in Montana," and that the Billings District TMs' "relationships were
strained to the max." (Id. at 260: 12-14, 260:23-261 :3; Ex. 116, Doc. 103-2 at 29-

15

37). Alwood described the TM position to Baker, and noted that the role is "very
complicated," and requires a 24/7, 365-day/year commitment. (Id. at 266:21-25,
267: 1-3). Al wood stressed that the job pressures were exacerbated in a rural
market [like the Billings District], where TM personnel did not have coverage
options. (Id. at 267:9-13). He explained that he had to ask TMs to cover territories
that were 85 miles away from their home territories, or 60 miles away, while
lamenting the fact that they had no options ("As a team, when we would have
somebody go out [e.g., vacation, illness], we have to cover the business.") (Id. at
269:21-270:1).
61.

Alwood explained the difficulties associated with hiring in certain

markets of the Billings District, and how few applicants there were for TM jobs in
the District. (Id. at 269:13-20). Alwood stressed that he was "lucky to even find
applicants," particularly in light of the hour demands of the job and the lack of
coverage for weekends and vacations. (Id. at 267:20-23).
62.

Al wood told Baker that the employees in Montana were working

extremely hard. (Id. at 267:14-16). He said that the TMs in the Billings District
were losing income and business that could not be replaced in a rural market. (Id.
at 261 :7-11). Al wood said that the "Montana team" had been excluded in certain
ways and that, he as the DM had not been supported as he should have been. (Id.
at 264: 12-17). Alwood partially described the Final Written Warning he had

16

received and told Baker that he was "threatened with losing [his] job because of
incompetence." (Id. at 261:21-262:16). Nowhere in his letter did he mention that
he was threatened with losing his job because of disability discrimination or
retaliation. (Id. at 262:25-263:21).
63.

After describing all of these serious problems, Alwood pointed out the

combination of these factors resulted in a diminution of his own performance as a
DM: "running vacant territories this geographically large with no applicants in
sight for recruiting, trying to do the right thing and protect the business in multiple
markets, many of my DM responsibilities suffer. Because of commitments to
customers, I was not able to spend time with the rest of the team." (Id. at 270:816).
64.

As to customers, Alwood stated: "The final wave begin [sic] to crest

because we were losing large accounts." (Id. at 271 :2-17). As Alwood
emphasized, "We have lost major accounts before, regarding this, and no one
seems to care." (Id. at 271 :21-23 ). Al wood remarked that in the month he went
out on leave, Ecolab had lost a $60,000/year customer, and that this was not the
first time this type of customer loss had occurred. (Id. at 271:24-272:7; 272:8-11).
65.

On the subject of retaliation, Alwood asserted, "Once again, [he] was

being retaliated against for the incompetence of others, not being able to do their
jobs well and support the field, and most importantly, our customers." (Id. at

17

273:15-24). Alwood identified Salstrand and the VP of Supply Chain, Kerri
Peterson, as the individuals who were retaliating against him. (Id. at 273:25274:19). Alwood conceded, however, that he was not claiming these two
individuals were retaliating against him because he had a disability or for taking
leave. (Id. at 274:23-275:4). Rather, Alwood explained to Baker, "I was retaliated
against by Mr. Salstrand and Ms. Peterson because they could not resolve the issue
of getting product to a customer in a timely fashion." (Id. at 275: 16 -21 ).
VII. Salstrand's First Request to HR for Options

66.

After Alwood went out on leave, Salstrand planned interim support

for the District. (Salstrand Depo. 121: 11-15, Doc. 31-2). Customer calls were
routed to Salstrand and another District Manager, Brian Last. (Id. at 124:20-25).
Last understood that he was receiving all customer calls while Alwood was on
disability leave. (LastDepo. 13:12-15, Doc. 31-1).
67.

Alwood received some communications from Ecolab customers when

he was on leave. (Trial Tr. at 245 :2-8). Al wood told Burgess, either by phone or
email, that he wanted the customer communication to stop. (Id. at 247:1-4).
68.

Salstrand knew Alwood could not be replaced immediately because

he was on disability leave. (Salstrand Depo. p. 69: 14-16; Doc. 31-2). He relied on
Ecolab's HR department to provide guidance "on exactly how to handle the
situation." (Id. at 69:15-16).

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69.

On September 6, 2013, three weeks after Alwood went on leave,

Salstrand emailed Marina Pariseau, who at the time worked as an HR Manager for
the Institutional Division, and asked if there were any "options" with respect to
Alwood's position. (Ex. 7, Doc. 103-1at14).
70.

Pariseau told Salstrand that she did not believe any "options" existed

at the time. (Id. at 15). She did not believe that putting a TM in place to fill-in for
Alwood for an undefined period was an option, because TMs generally do not have
the skill sets to fulfill all the DM' s responsibilities. (Trial Tr. at 805 :20-806:3 ).
She also did not believe having a DM fill in for Alwood was an option, because
doing so would leave another district without coverage while Alwood remained on
indefinite leave. (Id. at 806:5-13). At the time, Pariseau believed that the only
options were waiting for Alwood to return, which Ecolab preferred, or naming a
replacement. (Id. at 805:7-19; 809: 1-6). Because Ecolab's HR Department felt it
was too early to replace Alwood, Pariseau had no good options to offer Salstrand
on how to deal with the problems facing the Billings District. (Id. at 806: 19-24;
807:1-10).
71.

On September 6, 2013, Kietzman filled out a "Physician's Statement

of Disability," which Al wood provided to Burgess, as requested. (Ex. 125, Doc.
103-2 at 48).

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72.

After Alwood went out on leave, the problems in the Billings District

intensified. During the period Al wood was on leave, DM tasks were not being
completed, causing customer relations problems. (Trial Tr. at 633:13-17; 638:415; 773: 6-25).
73.

Town Pump was one ofEcolab's largest customers in the Billings

District. (Id. at 633: 13-17). As the Billings DM, Alwood was responsible for
overseeing, assisting, and supporting the TMs who directly serviced Town Pump.
(Id. at 586:23-587:8, 652: 13-22). When a problem arose, or when Town Pump had

customer service needs, Alwood was responsible for trying to resolve the issues.
(Id. at 652:13-22).

74.

Salstrand feared that without a Billings DM to address the customer

service issues, the Town Pump business was in jeopardy. (Id. at 633: 13-17).
Town Pump already had discontinued using Ecolab as its hand soap supplier,
costing Ecolab roughly $100,000 in business. (Id. at 633: 18 at 634: I). Moreover,
at its newest hotel in Bozeman, Town Pump began buying from Ecolab's main
competitor, despite the fact that Ecolab previously had been Town Pump's
exclusive hotel provider. (Id.). Salstrand found this decision to be "shocking."
(Id.).

75.

Without a DM to address these problems, Salstrand had to create an

action plan with all of the TMs to try to protect this business. (Id. at 638:4-15).

20

Despite these efforts, Salstrand continued to fear that the Company was at
imminent risk of losing Town Pump's business. (Id.).
76.

Salstrand believed the Billings District could not afford to lose Town

Pump as a customer. (Id. at 638:16-25). As one of the two largest customers in
the Billings District, Town Pump accounted for approximately $350,000 in annual
sales. (Id.). Salstrand believed that the loss of this revenue would constitute a
devastating setback from which the Billings District might not recover. (Id. at
638:21-25). At the very least, Town Pump had accounts in almost every Territory
in the Billings District. (Id.). As a result, if Ecolab lost Town Pump as a customer,
the TMs would make fewer sales and earn less income. (Id.). Salstrand feared that
this would result in TMs leaving, exacerbating the staffing challenges Ecolab
already was experiencing in the Billings District. (Id. at 639: 1-6).
77.

Salstrand also observed how the absence of a Billings DM was

negatively impacting Ecolab's relationship with Sysco Foods. (Id. at 632: 15-23;
633: 13-17; 638:4-10; 773:6-19). Sysco Foods, in addition to being an Ecolab
customer, is also the largest distributor of Ecolab products. (Id. at 585: 18-23).
Over half of the Billings District's $6 million in revenue was directly or indirectly
attributable to Sysco Foods. (Id. at 659:17-23).
78.

With Alwood on leave, Ecolab continued to have problems with

Sysco Foods in the Billings District. Trial Tr. 633:13-17. Salstrand testified that

21

he started receiving criticisms from Sysco Foods' VP of Field Sales about the
relationship between the two companies. (Id. at 773: 10-19). Moreover, the TMs
also expressed concerns about the inadequate support they were receiving with
respect to Sysco Foods. (Id. at 638:4-10).
79.

Sysco Foods also directly distributed Ecolab's products to Town

Pump. (Id. at 639: 1-15). As a result, when Ecolab started losing Town Pump's
business, it also affected Sysco Foods' revenue. (Id.). This further strained the
relationship between Ecolab and Sysco Foods. (Id.).
80.

Salstrand feared that Sysco Foods, like Town Pump, would begin

turning to Ecolab's competitors, the repercussions of which would have been
"devastating" and "catastrophic." (Id. at 639:7-15; 662:1-663:6).
81.

In addition to Town Pump and Sysco Foods, Salstrand also was

receiving feedback from the District's TMs that many other customers were upset
about the level of service they were receiving during Al wood's absence. (Id. at
634:8-16). Salstrand feared losing these customers to competitors as well. (Id.).
82.

Salstrand also had concerns about the impact Alwood's absence was

having on employee morale. (Id. at 632:15-22). In particular, there were multiple
territory managers who were struggling. (Id.). Two managers-Chris Blueher and
Terry Eckard-told Salstrand that they were going to leave Ecolab because they
were not getting the support needed. (Id. at 632:15-22, 638:8-13). Chris

22

he started receiving criticisms from Sysco Foods' VP of Field Sales about the
relationship between the two companies. (Id. at 773: 10-19). Moreover, the TMs
also expressed concerns about the inadequate support they were receiving with
respect to Sysco Foods. (Id. at 638:4-10).
79.

Sysco Foods also directly distributed Ecolab's products to Town

Pump. (Id. at 639:1-15). As a result, when Ecolab started losing Town Pump's
business, it also affected Sysco Foods' revenue. (Id.). This further strained the
relationship between Ecolab and Sysco Foods. (Id.).
80.

Salstrand feared that Sysco Foods, like Town Pump, would begin

turning to Ecolab's competitors, the repercussions of which would have been
"devastating" and "catastrophic." (Id. at 639:7-15; 662:1-663:6).
81.

In addition to Town Pump and Sysco Foods, Salstrand also was

receiving feedback from the District's TMs that many other customers were upset
about the level of service they were receiving during Alwood's absence. (Id. at
634:8-16). Salstrand feared losing these customers to competitors as well. (Id.).
82.

Salstrand also had concerns about the impact Alwood's absence was

having on employee morale. (Id. at 632:15-22). In particular, there were multiple
territory managers that were struggling. (Id.). Two managers-Chris Blueher and
Terry Eckard-told Salstrand that they were going to leave Ecolab because they
were not getting the support needed. (Id. at 632: 15-22, 638:8-13). Chris

22

complained that he was so "frustrated" because he was short-staffed, and Salstrand
had to send people from other districts to help him. (Id. at 640: 1-7).

VIII. Salstrand's Second Request to HR for Options
83.

On September 24, 2014, approximately six weeks after Alwood began

his indefinite leave, Salstrand again e-mailed Pariseau, this time informing her that
"things are beginning to boil over in Montana." (Ex. 7, Doc. 103-1 at 14). He
noted that "this is a very difficult team to manage due to extreme geography and
rural territories ... " Salstrand expressed the concern that "if we wait much longer,
the business and personnel losses will be quite substantial." (Id.).
84.

By late October 2013, Salstrand still had heard nothing from Ecolab's

HR Department, or from Alwood himself, about Alwood resuming his role at
Ecolab. (Trial Tr. 640:21-641: 11). As a result, Salstrand approached Bryan
Gentry, a TM working in Denver, Colorado, about the possibility of him taking
over as the Billings DM. (Id. at 646: 12-20).
85.

In order to gather more information regarding Alwood's potential

return to work, on November 1, 2013, Burgess reached out to Alwood and spoke to
him by telephone. (Id. at 291: 12-19). Al wood understood that the purpose of
Burgess's call was to explore when he might be able to return to work. (Id. at
291 :20 -292:10). In response to Burgess's inquiries, Alwood told her that he did
not know when he might be able to return to work. (Id. at 292: 11-18). Alwood

23

conceded that during this call, he did not tell her that he might be able to return to
work in mid-December. (Id. at 294:3-7).
86.

On November 6, 2013, Alwood sent Burgess an email: "Shelly, I

contacted my doctor and she said she would be glad to give you an update but the
request needs to come directly from you. Please contact her with the proper
paperwork request." (Ex. 202, Doc. 103-3 at 27). In response, Burgess emailed
Al wood another Attending Physician Form. (Ex. 203, Doc. 103-3 at 28).
87.

Because the November 1, 2013 phone call confirmed that Alwood still

could not provide a potential return date, Ecolab approved the hiring of a new
Billings DM. (Id. at 647:5-648:2). Upon receiving this approval, Salstrand offered
the position to Gentry, who accepted the offer. (Id.). The Rocky Mountain Region
announced that Gentry would be assuming the role of Billings OM on November
7, 2013. (Id. at 648:8-20; Ex. 8, Doc. 103-1 at 17). Gentry started in this role soon
thereafter. (Trial Tr. at 653:23-25). At the time that Gentry was appointed to the
Billings OM position, Salstrand still did not know when, or even whether, Alwood
would return to work. (Id. at 647:14-16).
88.

Alwood first learned that Ecolab had filled the Billings DM position

from another OM out of Denver, Brian Last. (Id. at 295: 10-14). After learning his
position had been filled, Alwood did not reach out to Salstrand or Dahl and he

24

never told either of them that he would like to return to Ecolab or return to his role
as DM for the Billings District. (Id. at 296:2-17).
89.

Because he believed that Ecolab's leave policies required Ecolab keep

his position vacant for 180 days, Alwood was surprised to learn he had been
replaced. (Id. at 296:15-17). Alwood conceded however, that Ecolab's Disability
Policy states "reemployment is not guaranteed." (Id. at 339:10-341:2).
IX.

Alwood's Return to Work
90.

Alwood obtained a new SOD, dated November 12, 2016. (Id. at

298:13-18; 299:7-12; Ex. 204, Doc. 103-3 at 29). This SOD provided for an
anticipated return to work date of December 16, 2013. (Id. at 102:1-3; 297:8298:24; Ex. 204, Doc. 103-3 at 29). To the right of the return to work date,
Kietzman wrote "Possibly." (Id. at 102:4-6). Kietzman also observed that it was
"unknown" whether a job modification would enable Alwood to work without
impairment. (Id. at 102:7-10). As of mid-November 2013, Kietzman believed that
Alwood would return to Ecolab in a "part-time" capacity. (Id. at 102:15-18).
91.

Although Kietzman proposed part-time work in the November 12

SOD, Alwood acknowledged that the responsibilities of the Billings DM could not
be fulfilled on a part-time basis. (Id. at 103 :21-104:7).
92.

On December 16, 2013, Kietzman wrote a short letter to Ecolab,

advising the Company that Alwood was ready to return to work without

25

restrictions. (Id. at 103:5-17; Ex. 102, Doc. 103-2 at 11). Upon receipt of
Kietzman's December 16 correspondence, Burgess sent a short email to Bjorkman
and another HR representative stating, "Hi, received a full release effective today,
12/16/13." (Id. at920:18-921:3;Ex.21,Doc.103-l at36). Bjorkman's
understanding at that point was that Alwood was capable of returning to work
without any restrictions of any kind. (Trial Tr. at 921: 10-16).
93.

From that point forward, the dialogue between Alwood and Ecolab

focused on whether there was another opportunity for which Alwood was both
qualified and interested at Ecolab. (Id. at 315:22-316: 1).
94.

On January 2, 2014, Bjorkman advised Alwood over the phone that

she would work with him to identify positions in which he expressed interest and
for which he was qualified. (Id. at 317: 15-318:6). Bjorkman also discussed with
Al wood the fact that he would be eligible for a severance package ifhe was unable
to identify a position in which he was interested and for which he was qualified.

(Id. at 925:17-25).
95.

The same day, Bjorkman sent Alwood a letter indicating that Ecolab

did not have a current opening in the Billings District and directed him to Ecolab's
website for open positions within the company. (Ex. 104, Doc. 103-2 at 13). She
told Alwood that he could begin exploring opportunities on Ecolab's job website.

(Id. at 926:23-927:1 ). She also advised him that ifhe identified any positions that

26

required him to relocate, he would need to do so at his own expense. (Ex. I 04,
Doc. 103-2 at 13).
96.

On January 3, 2014, Al wood expressed concern about his ability to

apply for positions with Ecolab through the Company's on-line job-posting site,
EcoJobs, "because [he] did not know who [his] manager [was] to answer the
questions." (Trial Tr. 318:19-25; Ex. 103, Doc. 103-2 at 12). Bjorkman promptly
responded to Al wood's concerns informing him that he should list Salstrand as his
manager. (Id. at 319: 13-15, 930:9-20). Alwood, however, balked at doing so,
because "since I wasn't a District Manager, I wasn't a direct report of Scott
Salstrand, so he was not my manager. So, I couldn't truthfully answer the question
on my application." (Id. at 319: 16-21, 319:22-320:4; Ex. I 03, Doc. 103-2 at 12).
97.

In another email to Alwood, Bjorkman encouraged him to review the

job opportunities identified on Ecolab's website and urged him to contact her if he
wanted to discuss specific opportunities. (Id. at 321: 1-6; Ex. I 04, Doc. 103-2 at
13). In the same email communication, Bjorkman reminded Alwood that if he was
not able to identify a position in which he was interested and for which he was
qualified, he would be eligible to participate in Ecolab's severance plan. (Id. at
321:7-12).
98.

On January 6, 2014, Alwood applied for the Safety, Health and

Environmental Specialist position and received an automatic reply that his

27

application was being reviewed. (Bjorkman Depo. p. 128:5-9; 167:3-8, Doc. 31-13;
Ex. 107, Doc. 103-2 at 19).
99.

On January 7, 2014, Alwood sent Bjorkman an email inquiring about

open DM positions, open AM positions and open Corporate Account positions.
(Trial Tr. 322:3-7; Ex. 105, Doc. 103-2 at 14).
100. Bjorkman responded to Alwood, pointing out that he was not eligible
for either the AM or Corporate Account positions, inasmuch as those were both
positions more senior to and higher in the Ecolab job hierarchy than any position
Alwood had occupied during his Ecolab career. (Trial Tr. 323:21 - 324:2; Ex.
105, Doc. 103-2 at 14-15). At the same time, Bjorkman stated that she would
identify open DM positions for Alwood. (Id. at 324:4-6).
101. Shortly thereafter, after seeking assistance from Bruce Weiss, the HR
Director for the Institutional Division, Bjorkman provided Alwood information
regarding open DM positions. (Id. at 324:7-25; Ex. 106, Doc. 103-2 at 16)
Bjorkman identified eight open DM positions in various parts of the U.S. for which
Al wood was qualified. (Id. at 325: 1-10). Al wood previously had advised
Bjorkman that he was willing to consider DM positions in any geography. (Ex.
106, Doc. 103-2 at 16). But, when presented with eight alternative DM options,
Al wood was not interested in any of them. (Trial Tr. at 325: 11-17). Consequently,

28

Alwood did not apply for any of the eight DM positions Bjorkman had identified.
(Id. at 326: 12-14; 939:4-8).
102. Bjorkman followed up with Alwood via email to explore whether he
was interested in any of the positions, but Al wood did not respond to her inquiry.
(Id. at 938:16-25).
103. Alwood applied for one position with Ecolab in January 2014 - a
Safety, Health and Environmental Specialist position. (Id. at 327: 16-20; 940: 1016; Ex. 205, Doc. 103-3 at 30). Alwood believed that he could perform that role
while remaining in Billings, even though the position description stated that the
position was based in St. Paul, Minnesota. (Id. at 327:21-24). Alwood lacked the
minimum educational requirements specified in the position description. (Id. at
329:2-5; 941:2-9).
104. From December 16, 2013 through the end of Alwood's employment,
he did not speak with Salstrand about any opportunities in the Rocky Mountain
Area, and did not speak with Salstrand about resuming his role as the Billings DM.
(Id. at 329:22-330:9). Moreover, Alwood did not speak with anyone else in the
Rocky Mountain Area about potential work opportunities in that geographic area.
(Id.). Similarly, Alwood did not discuss with Bjorkman the possibility of obtaining
a TM position. (Id. at 330: 15-17).

29

105. Ecolab unilaterally decided to extend the 30 days available to Alwood
for him to secure another position within Ecolab. (Ex. 120, Doc. 103-2 at 20).
106. Bjorkman sent Al wood an email on January 31, 2014, and informed
him that ifhe did not identify other positions in which he was interested and for
which he was qualified by February 6, 2014, his employment with Ecolab would
end and he would become eligible for Eco lab's severance plan. (Id. at 333: 1-21;
942:8 -943: 13). Al wood did not respond to Bjorkman's e-mail, nor did he apply
for any additional positions. (Id. at 333:22-24; 943:14-17).

X.

Alwood's Termination from Ecolab
107. On February 10, 2014, Bjorkman wrote to Al wood and advised him

that he was being separated from Ecolab and that his separation date would be
retroactive to February 6, 2014. (Id. at 334:22-25; Ex. 120, Doc. 103-2 at 44).
Bjorkman's February 10 correspondence to Alwood marked the end of Alwood's
employment with Ecolab. (Id. at 335: 1-3).
I 08. Salstrand testified that, ifhe had known that Al wood would have been
able to return to work in November or December of2013, he would not have
replaced him. (Id. at 751 :9-12).
109. Bruce Weiss, Ecolab's corporate representative, testified that the
decision to replace Alwood was made to protect Ecolab's bottom line. (Id. at
500:21-23).

30

XI.

Alwood's Post-Ecolab Employment
110. Alwood's Ecolab employment ended in February 2014. (Id. at 344:7-

8). In February 2015, Alwood obtained a position as an Inside Salesman with a
Billings company called Industrial Sales and Service ("Industrial"). (Id. at 344: 1016). In this capacity, Alwood was involved in selling industrial products. (Id. at
344:17-18).
111. Alwood's starting compensation with Industrial was $42,000 per year.
(Id. at 19-20). Alwood was a salaried employee so he was not eligible for overtime

compensation. (Id. at 344:21-23, 345 :2-3). Al wood could have obtained insurance
benefits through Industrial, but declined those benefits because he was covered
under his wife's insurance plan through the Billings School District. (Id. at 345:714).
112. Since commencing employment with Industrial, Alwood continued to
explore alternative job opportunities. (Id. at 345: 19-22). Al wood testified that he
intends to continue looking at other employment opportunities. (Id. at 345:24-25).
Al wood stated further that if a better opportunity comes along, he may pursue it.
(Id. at 346:4-6).

XII. Alwood's Current Mental Health Status
113. When Alwood was deposed in August 2015, he testified that his
physical health was fine. (Id. at 341:4-7). He noted that he was not experiencing

31

any "particular problems of any kind." (Id. at 341:8-10). At that time, he was not
under the care ofa physician. (Id. at 341:12-15). He was not using any
prescription, or even non-prescription, medications. (Id. at 342:4-14).
114. Alwood further testified that he was not seeing any medical doctor for
help with any mental health issues. (Id. at 342:15-18). Alwood testified that the
last person he had seen for any mental health assistance of any kind was his former
therapist, Kietzman, and he last saw her in February 2014. (Id. at 343:7-11, 343:
23-25, 344: 1-3).
115. The period in which he experienced his most severe depression and
anxiety was the time frame leading up to mid-August, 2013, when he went out on
leave. (Id. at 249:12-16).
116. As Alwood described it, in the period while he was on leave (August
through mid-December), his mental health improved. (Id. at 250: 10-251 :6). The
prescription medications made him calmer, helped him "balance out [his] focus,"
and helped him "focus better." (Id. at251:7-13).
117. Alwood's self-assessment with respect to his mental health, was
corroborated by his psychologist, Kietzman. As described above, by December 16,
2013, Kietzman had concluded that Alwood "has recovered substantially from his
medical condition." (Id. at 103: 11-17; Ex. 102, Doc. 103-2 at 11 ). She determined
that as of mid-December, he was "ready and able to resume his full work

32

schedule." (Id.). Moreover, by early January, Kietzman and Alwood discussed
whether Alwood should continue his disability leave. Kietzman concluded that
additional leave would not be appropriate and that Alwood was "capable of going
back to work." (Id. at 97:16-98:3).
CONCLUSIONS OF LAW
I.

Atwood Failed to Prove Disability Discrimination.

1.

Under the Montana Human Rights Act, it is unlawful for an employer

to discriminate against an employee on the basis of a physical or mental disability,
unless the reasonable demands of the position require a distinction based on
physical or mental disability. Mont. Code. Ann. § 49-2-303(1)(a).
2.

"Physical or mental disability" includes "a physical or mental

impairment that substantially limits one or more of a person's major life activities."
McDonald v. Dep't ofEnvtl. Quality, 214 P.3d 749, 758 (Mont. 2009) (quoting

Section 49-2-101(19)(a)(i), MCA; accord 29 C.F.R. § 1630.2(g)(l)). Work is
considered a major life activity. Id.
3.

A person with a physical or mental disability is qualified to hold an

employment position "ifthe person can perform the essential functions of the job
with or without a reasonable accommodation for the person's physical or mental
disability." Id. at 758-59 (quoting Admin. R.M. 24.9.606(2); see also 29 C.F.R.
app. § 1630.9).

33

4.

There is no dispute that Alwood's depression was a mental

impairment which substantially limited his ability to work and that he was
otherwise qualified to hold his position with Ecolab.
5.

Discrimination can be proved by either direct or circumstantial

evidence. Circumstantial evidence cases are ones in which the parties dispute the
reason for the employer's action. Reeves v. Dairy Queen, Inc., 953 P.3d 703
(Mont. 1998). Here, the parties dispute the reason for Ecolab's action: Alwood
asserts Ecolab terminated him because of his disability; Ecolab asserts it
terminated Alwood when he failed to find another job at Ecolab within the
prescribed time frame.
6.

Claims of employment discrimination involving circumstantial

evidence are analyzed under the McDonnell Douglas test. See Ray v. Montana
Tech of Univ. ofMontana, P.3d 122, 129 (Mont. 2007). Ultimately, under the
McDonnell Douglas test, the plaintiff first has the burden of proving, by the

preponderance of the evidence, a prima facie case of discrimination. Id.
7.

Discrimination based on physical or mental disability includes "the

failure to make reasonable accommodations that are required by an otherwise
qualified person who has a physical or mental disability." MCA§ 49-2-101(19)(b ).
8.

Alwood asserts that Ecolab engaged in disability discrimination in the

following two ways. First, Alwood claims that Ecolab, as part of its obligation to

34

provide a reasonable accommodation, was required to keep the Billings DM
position vacant during his indefinite leave until such time as Alwood and his
therapist determined he was well enough to return to work. Second, Alwood
claims that Ecolab was obligated as part of an "interactive process" to find him a
new position within Ecolab after he received a full release to work without
restrictions.
9.

For the reasons that follow, the Court finds that Ecolab fulfilled

Alwood's requested accommodation. Further, keeping the Billings DM position
vacant indefinitely did not amount to a reasonable accommodation. The Court also
concludes that after Alwood received a full release to work without restrictions, he
no longer was disabled and therefore no longer entitled to the "interactive process"
or a reasonable accommodation. To the extent Alwood was entitled to an
"interactive process" after he received clearance to work, however, Ecolab met its
obligations under Montana law.

A.
10.

Ecolab provided Alwood with his requested
accommodation.

To receive an accommodation, an employee generally has to request

it. See, e.g., Reeves, 953 P.2d at 711; see also Brown v. Lucky Stores, Inc., 246
F.3d 1182, 1188-89 (9th Cir. 2001) (holding that the employer had no duty to

35

provide accommodation to its employee, "given that she never requested one."). 1
Al wood's requested accommodation was a leave of absence. Ecolab granted this
request by placing him on the Company's Short-Term Disability Plan. (Agreed
Facts ii 9, Doc. 81 ).
11.

Alwood asserts that Ecolab was also required to keep the Billings DM

position vacant while he remained out as a reasonable accommodation. The Court
disagrees. Ecolab' s Short-Term Disability Policy advised Al wood that:
Ecolab will make reasonable efforts to reinstate employees returning
from medical leaves into positions of equal status and pay, but reemployment is not guaranteed. Re-employment is dependent on the
length of the leave, whether the date of return is definite or
indefinite, successful recovery or rehabilitation from the disability
and availability of a position. An individualized analysis will be
reviewed for each situation.
(Ecolab HR Policy Manual, Ex. 200, Doc. 103-3 at 22) (emphasis added). At the
time he went out on leave, Alwood had the policy and acknowledged that the
policy applied to him. (Trial Tr. 241:2-5,337:16-338:23; see also Ex. 316). The
policy advised Atwood that his position might be filled the longer he remained on
indefinite leave. Despite this, Atwood did not request as an accommodation that
Ecolab keep the Billings DM position vacant, nor did he request that Ecolab

1

Because the MHRA is modeled on federal anti-discrimination laws, such as the ADA, it is
useful and appropriate to consider federal statutes, regulations, and case law as persuasive
authority when interpreting provisions of the MHRA. McDonald, 214 P.3d 749, 758.

36

reinstate him as the Billings DM following his return. (Id. at 316:3-8). The fact
that Alwood did not request these accommodations are fatal to his claims. See
Brown, 246 F .3d at 1188-89; see also Zivkovic v. S. California Edison Co., 302

F.3d 1080, 1089 (9th Cir. 2002).

B.
12.

Keeping the Billings District Manager position vacant
indefinitely did not amount to a reasonable accommodation.

"An accommodation to a person with a physical or mental disability

for the purpose of enabling the person to perform the essential functions of an
employment position is reasonable unless it would impose an undue hardship upon
the employer." Mont. Admin. R. 24.9.606( 4). An "undue hardship" is one that
"impose[s] significant difficulty or extraordinary costs" upon the employer. Mont.
Admin. R. 24.9.606(5).
13.

For purposes of determining whether an accommodation to a physical

or mental disability is reasonable, "undue hardship" means an action requiring
significant difficulty or extraordinary cost when considered in light of:
(a) the nature and expense of the accommodation needed;
(b) the overall financial resources of the facility or facilities involved in the
provision of the accommodation, the number of persons employed at the
facility, the effect on expenses and resources of the facility, and other
impacts of the accommodation on the operation of the facility;
(c) the overall financial resources of the business, the overall size of the
business of the employer with respect to the number of employees, and the
number and type and location of the facilities of the employer; and

37

(d) the type of operation or operations of the employer, including
composition, structure, and functions of the work force of the employer, and
the geographic separateness and administrative or fiscal relationship of the
facility or facilities in question to the employer. McDonald, 214 P.3d at 749.
14.

Because keeping the Billings DM position vacant until Atwood

returned from his indefinite leave would have imposed an undue hardship upon
Ecolab, Ecolab was not required to do so as part of an accommodation.

(1)
15.

Indefinite leaves of absence are not considered a
reasonable accommodation.

Employers under the Montana Human Rights Act (MHRA) are "not

required to accommodate an employee who suffers a prolonged illness by allowing
him an indefinite leave of absence." See Pannoni v. Ed. of Trustees, 90 P.3d 438
(Mont. 2004); see also Parker v. Columbia Pictures Indus., 204 F.3d 326, 338 (2d.
Cir. 2000) ("The duty to make reasonable accommodations does not, of course,
require an employer to hold an injured employee's position open indefinitely while
the employee attempts to recover. ... "). Significantly, the EEOC, in its most recent
policy guidance, stated that an "indefinite leave - meaning that an employee cannot
say whether or when she will be able to return to work at all - will constitute an
undue hardship, and so does not have to be provided as a reasonable
accommodation." U.S. Equal Employment Opportunity Commission, EmployerProvided Leave and the Americans with Disabilities Act, available at
www.eeoc.gov/eeoc/publications /ada-leave.cfm.

38

16.

In this case, at the time Ecolab hired a new Billings DM, Al wood was

by definition on an indefinite leave of absence. Al wood and his therapist,
Kietzman, both testified that at the time Al wood began his leave of absence, they
did not know how long Alwood would be out of work. (Trial Tr. 229:2-22). No
one at Ecolab knew when (or whether) Al wood would return. (Id. at 624:2-2, Ex.
4, Doc. 103-1 at 1) ("At this time, we have not received any documentation
supporting anticipated length of time removed from work); (Trial Tr. at 631 :4-9)
(Salstrand testifying that at no time did he ever learn when Alwood might be
returning); (id. at 637:15-22; id. at 802:14-803:6; id. at 810:18-811:6).
17.

At no point prior to Ecolab naming a new Billings DM did Alwood

communicate to Ecolab how long he anticipated being out or whether he would
return to work. Neither Kietzman's initial letter to Ecolab nor the September 6,
2013 SOD provided any information regarding when (or whether) Alwood might
return, the length of his treatment plan, or his prognosis. (Exs. 100, 125, Doc. 1032 at 9, 48). On the contrary, the September 6, 2013 SOD stated that Alwood was
"totally disabled," and that his return to work was "unknown" and "depend[ed] on
his response to future treatment." (Ex. 125, Doc. 103-2 at 48). Alwood
acknowledged at trial that the September 6, 2013 SOD accurately characterized his
condition and status at the time. (Trial Tr. 254:1-3). Even as late as November 1,
2013, Al wood told Ecolab's Disability Case Manager, Burgess, that he still did not

39

know how long he would remain away from work. Trial Tr. 291: 12-292: 18.
Given this ongoing uncertainty regarding when (or whether) Alwood would be
able to return to work, Ecolab concluded it had no choice but to name a new
Billings DM.
18.

Because Ecolab did not know when, or whether, Alwood would be

able to return, Ecolab was not required to keep the Billings DM position vacant
indefinitely as part of a reasonable accommodation. See Pannoni, 90 P.3d 438;
Parker, 204 F.3d at 338; Myers v. Hose, 50 F.3d 278, 283 (4th Cir. 1995) ("[F]or
the [employer] to be forced to stand by- or hire temporary help- while [the
employee] endeavors to improve his failing health would be a significant
burden."). To do so would have imposed a substantial hardship upon Ecolab.
19.

Al wood asserts that Ecolab should have asked his therapist, Kietzman,

about the duration of his leave. But as Kietzman herself testified, it would "have
been uncommon" for her to have direct communications with a patient's employer.
(Trial Tr. at 80:24-81 :3). Moreover, Alwood's argument ignores the fact that the
way Ecolab communicates with medical providers is through the SODs. The
single SOD Ecolab received from Kietzman prior to naming a replacement DM
noted that Alwood was "totally disabled" and that his return to work was
"unknown." (Ex. 125, Doc. 103-2 at 48). Because Ecolab had requested that
Alwood and Kietzman provide regular updates on Alwood's return-to-work status,

40

the fact no one at Ecolab received any information after the September 6, 2013
SOD, led Ecolab conclude that the duration of Alwood's leave remained
"unknown." (Trial Tr. 236:6-15). This was consistent with what Alwood told
Burgess when she asked him in early-November if he knew whether or when he
may be returning and he said he didn't know. (Id. at 291:12-292:18).
20.

Alwood argues that the SOD dated November 12, 2013 demonstrates

that his leave was not really indefinite. (See Ex. 204, Doc. 103-3 at 29). But
Ecolab has no record of receiving this document. And although Alwood asserted
at trial that he submitted this document, his testimony in this regard directly
contradicted the testimony provided during his deposition. At his deposition,
Alwood unequivocally testified that neither he nor his therapist ever communicated
with anyone at Ecolab about coming back with an accommodation. (Trial Tr.
307:7-309:4). But the November 12 SOD states that Alwood could potentially
return by December 16, 2013 on a part-time basis with accommodations. (Trial Tr.
304:21-305:5; Ex. 204, Doc. 103-3 at 29). Because Alwood's testimony at trial
directly conflicts with the deposition testimony in which he stated he never
communicated with Ecolab about an accommodation, the Court gives no weight to
his claim that he actually provided the November 12 SOD.
21.

There are other indicia that Alwood never provided the November 12

SOD to Ecolab. For one, Burgess sent Alwood information on Ecolab's Long-

41

Term Disability Plan on November 14, 2013, something that would have been
entirely unnecessary had Al wood notified Ecolab of a potential December 16, 2013
return-to-work date. (Ex. 117, Doc. 103-2 at 40-41 ). Moreover, the November 12
SOD referenced part-time work, but Alwood conceded he could not perform as a
DM on a part-time basis. (Trial Tr. 103:21-104:7; Ex. 204, Doc. 103-3 at 29).
22.

Even assuming Alwood did submit the November 12 SOD, it would

have been received after Ecolab already named a new Billings DM. Immediately
prior to being replaced, Alwood informed Burgess that he still did not know when
he could return. (Trial Tr. 291: 12-292: 18). Similarly, both of the documents he
previously provided to Ecolab regarding his return-to-work status (the initial letter
from Kietzman and the September 6 SOD) failed to contain a return date or
explicitly stated that his return was "unknown." It is undisputed that in November
2013, when Ecolab finally decided it had to put a new DM in the Billings District,
it did not know when or whether Alwood ever would be healthy enough to return.
The November 12 SOD does nothing to change that fact.

(2)
23.

Alwood's indefinite leave imposed an undue burden
on the Billings District.

Alwood's indefinite absence was detrimental to Ecolab's relationships

with its customers and employees in the Billings District.
24.

The condition of the Billings District shortly before Alwood's leave

significantly hindered Ecolab's ability to absorb the prolonged absence of the
42

District's most important, most senior manager. The Billings District was already
understaffed, morale was low, and at least one TM was threatening to quit. (Trial
Tr. 604: 15-610:13; Ex. 111, Doc. 103-2 at 23). Alwood himself described the
District as being "strained to the max." (Ex. 13, Doc. 103-1 at 20). In the month
before Al wood began his leave, the Billings District had lost a $60,000 per year
customer. (Trial Tr. 271 :24-272:7). The indefinite leave of the Billings DM
would not have helped the customer problems that Alwood himself recognized
were occurring in the Billings District.
25.

The Court also considers the nature of the Billings DM position when

determining whether Ecolab had an obligation to keep it vacant indefinitely. See,
e.g., Watkins v. J & S Oil Co., 164 F.3d 55, 61 (1st Cir. 1998) (holding that
employer is not required to hold managerial position open for an indefinite period
of time). The Billings DM is the most senior, most important job in the Billings
District. (Trial Tr. 189:23-25; 554:18-555:1). As Alwood described it, the
Billings DM is the "boss of the District." (Id. at 190:9-10). As a result, keeping
the position vacant indefinitely proved to be extremely problematic for Ecolab.
(See, e.g., id. at632:15-22;seealso798:ll-25).
26.

In considering whether an accommodation amounts to an undue

burden, courts consider among other facts, its financial costs. See Mont. Admin.
R. 24.9.606(5)(a) (undue hardship imposes "significant difficulty or extraordinary

43

costs" upon the employer). Here, the absence of a Billings DM was having, and
would continue to have, a severe detrimental impact on Ecolab's sales in the
Billings District. (Trial Tr. 633:13-17; 634:8-16; 638:4-19). There was unrebutted
testimony presented at trial that, in Alwood's absence, Ecolab was failing to
adequately service many of its customers in the Billings District, including its two
largest customers, Town Pump and Sysco Foods. (Id. at 634:8-16; 638:4-15; Ex.
7, Doc. 103-1). Real business was lost. Lack of support resulted in Town Pump
shifting its hand soap business from Ecolab to another company. (Id. at 633:18634: 1). This alone cost the Billings District $100,000 in revenue. (Id.). Town
Pump decided not to use Ecolab as a service provider at its newest hotel in
Bozeman, and instead gave that business to an Ecolab competitor. (Id. at 633: 18634: 1). In his own letter to Baker written while he was on leave, Al wood noted
that Ecolab was "losing major accounts in Montana." (Id. at 260: 12-14; Ex. 116,
Doc. 103-2).
27.

Ecolab also had reason to fear that the Billings District would

continue losing significant business the longer it went without a DM. Both Town
Pump and Sysco Foods (the latter accounting for more than 50 percent ofEcolab's
sales in the Billings District) complained about their relationships with Ecolab.
(Id. at 633:13-17; 634:8-16; 638:4-19; 757:15-758-15; 773:6-19; 659:17-660:3).

Salstrand thought the loss of Town Pump's business was imminent. (Id. at 638:4-

44

15; 757:15-758-15). Losing either Sysco Foods or Town Pump would have been
devastating not only to the Billings District, but also to the Rocky Mountain Area.
(Id. at 659:17-660:3; 638:16-25; 662:19-663:6). Without an active DM- the

person charged with ensuring customer service and satisfaction - Ecolab could not
adequately address or resolve its customers' complaints. Trial Tr. 632: 15-634: 16.
Salstrand feared that without a DM's direction, customers would continue moving
business away from Ecolab. (Id. at 634:8-16; 638:4-639:15).
28.

Also, in contrast to the data Alwood presented, other financial reports

offered into evidence showed that the Billings District was losing sales during
Alwood's absence. (Ex. 225, Doc. 103-3 at 30). During the last three months in
which Al wood was active as the Billings DM, the Billings District hit 101.6
percent of its sales goals. (Id.). In contrast, during the first three full months after
Alwood took leave, the Billings District only reached 94.5 percent of its sale goals
- its worst performance over any three-month span in 2013. (Id.).
(3)

A temporary replacement would have placed an

undue burden on Ecolab.

29.

Alwood does not deny the difficulty or importance of the Billings DM

position. Instead, he argues that Ecolab could have used temporary help to fulfill
the DM's responsibilities while he remained on indefinite leave. (See, e.g., Trial
Tr. 707:11-21; 707:25-708:4). But Ecolab presented substantial evidence that, in
light of the importance of the DM position, and in light of the fact Ecolab did not

45

know when or whether Alwood would be returning, using a temporary replacement
was not a reasonable solution to the problems facing the Billings District.
30.

Ecolab reasonably believed that bringing in a temporary replacement

for Alwood would have only exacerbated the morale and customer problems facing
the Billings District. (Id. at761:9-19; 762:17-763:1). As Salstranddescribedit,
the Billings District could not afford a short-term solution, it needed leadership to
re-engage those TMs who had become so disillusioned that they were considering
resigning. (Id.) Ecolab also needed to show its customers, including Sysco Foods
and Town Pump, that it had a sustainable plan to address their numerous business
concerns in the long-term. (Id. at 761 :9-19). A temporary replacement would not
have accomplished either of these goals.
(a)

31.

A temporary replacement would have
detrimentally impacted other workers.

An accommodation may also be unreasonable when it detrimentally

impacts other employees. See US. Airways, Inc. v. Barnett, 525 U.S. 391, 400
(2002) ("[A] demand for an effective accommodation could prove unreasonable
because of its impact, not on business operations, but on fellow employees .... ").
At trial, there was persuasive testimony that one of the primary reasons Ecolab
replaced Al wood was because of the substantial negative impact the absence of a
DM was having on other employees in the Billings District. (Trial Tr. 632:15633:12; 639:16-640:12; 642:12-18; Ex. 7, Doc. 103-1at14).
46

32.

When Alwood went out on indefinite leave, there was nobody to

provide the leadership, training, or support the TMs needed to effectively do their
jobs. (Id. at 632: 15-633: 12; 635:12-23 (noting that with Al wood gone, the only
person who could provide "ride-along[s], guidance, assistance, [and] training" was
Salstrand); 639:16-640:12; 642:12-18; Ex. 7, Doc. 103-1at14). This eventually
damaged morale to such an extent that two of the TMs (out of the ten) threatened
to resign. (Id. at 639:16-640:12; 632:15-22 ("[A] team without a leader is not a
good situation. There were multiple territory managers that were struggling; they
confided in me that they were contemplating leaving the company."); Ex. 7, Doc.
103-1 at 14). Losing 20 percent of the TMs would have been a substantial
hardship to Ecolab, especially considering Alwood's perception of how difficult it
is for Ecolab to hire TMs in the Billings District. (Id. at 589:21-590:9; Ex. 13,
Doc. 103-1at19-20).
33.

There were few, if any, individuals qualified or available to fulfill the

DM position while Alwood remained on indefinite leave. Though some of
Al wood's responsibilities were covered by TMs, TMs generally do not have the
skills or experience to provide the requisite leadership and training, or to deal with
the troubleshooting and other customer service issues that face a DM. (Id. at
651: 16-652:2; 762:17-763: l; 770:25-771 :8, 805:20-806:3). Bringing a DM from
another district also was not a solution, because that would have left another

47

district without a leader for an indefinite period of time. (Id. at 652:3-12; 806:513).
34.

Even ifTMs had the knowledge and experience to cover for Alwood,

it still would not have been reasonable to require them to do so. Indeed,
accommodations that require employees to work harder are not reasonable. See
Mason v. Avaya Comms., Inc., 357 F.2d 1114, 115 n.3 (10th Cir. 2004); Turco v.
Hoechst Celanese Corp., 101F.3d1090, 1094 (5th Cir. 1996) ("[A]n

accommodation that would result in other employees having to work harder or
longer is not required under the ADA"); Milton v. Scrivner, Inc., 53 F.3d 1118,
1125 (10th Cir. 1995) (same).
35.

Because Ecolab already had a shortage ofTMs in the Billings District,

it also could not afford to assign a TM to temporarily fill the Billings DM position
on a full-time basis. (See Trial Tr. 589:21-590:9). As Alwood explained to Baker,
the departure of a TM in 2012 left the Billings District "with another vacancy in an
extremely large territory with no one to run except me"; in a "rural market" where
it is "very difficult to fill positions and even find applicants sometimes because of
the demands of the hours and lack of coverage on weekends and vacations" and in
an "extremely tough market to hire in." (Ex. 13, Doc. 103-1at20, 23-24).
36.

Each TM in the Billings District already serviced between 50 and 100

of their own customers, and their jobs required them to be on call 24 hours per day,

48

365 days per year. (Trial Tr. 756:5-757:6; see also 267: 1-8). Alwood himself
explained that "most have no idea how complicated and what a TM experiences
during their [sic] workday." (Ex. 116, Doc. 103-2 at 34). Similarly, the DM
position is also very "intense," "stressful," and "difficult." (Trial Tr. 195: 16-22).
Like the TM position, the DM role is a 24/7, 365-day-a-year job that requires one
to be on the road anywhere from four to seven days per week. (Id. at 267: 1-11; see
also 554:18-555: 1; 224:25-225: 14; 225:21-226:4). Because the demands placed
on both TMs and DMs are substantial, it would have been unreasonable to require
a TM to take on both roles simultaneously, especially with serious morale
problems already prevalent in the District. Al wood put it best in his letter to Baker
when he said that Ecolab "cannot expect people to work 12-14-16 hours a day,
seven days a week on a regular basis." (Ex. 116, Doc. 103-2 at 34).
37.

At trial, Alwood suggested that Salstrand could have covered for him.

But Salstrand lived and worked in Denver, CO and was responsible for eight other
districts, eight other DMs, and over 100 TMs. (Trial Tr. 762: 1-16). It was not
feasible for him to continue filling the responsibilities of the Billings DM for the
unknown period of time that Al wood remained away. (Id.).
38.

The size of the Billings District also made it difficult to cover for

Alwood indefinitely. (Id. at 267:9-13; 588:20-589:20; 799:1-19; Ex. 13, Doc. 1031 at 20). Because the District is so spread out, the employees in the District are

49

also spread out. (Id.). As a result, an employee who has to cover for another must
generally travel hundreds of additional miles each week. (Id.). As Al wood
himself described it in his letter to Baker, covering for someone in the Billings
District was "not just as simple as having the neighboring TM take some accounts.
We have [a] vast geography and many hours behind the wheel, driving many miles
to handle business." (Ex. 13, Doc. 103-1 at 20). Of course, Alwood was referring
to coverage for an absent TM. Coverage for a DM, in contrast, would have been
even more difficult, due to the fact that a DM is more senior, has substantially
more responsibilities than does a TM, and has to ensure the entire District is
functioning effectively.
39.

In support of his argument that he could be temporarily replaced,

Alwood argues that Brian Last, a DM working out of Denver, covered for Alwood
with little difficulty. This argument is unpersuasive. Last's sole coverage
responsibility was to accept escalated phone calls while Alwood was out. (Trial
Tr. 634:17-635:4; 816:19-21). Last did not conduct ride-alongs, training sessions,
meet with customers in the Billings District, or fulfill any of the other numerous
responsibilities required of a DM. (Id. at 635:7-11). Last did not travel to the
Billings District during Alwood's absence. (Id.). Last effectively covered calls for
Alwood, he did not act as a temporary replacement.

50

(b)

40.

A temporary employee would have potentially
devastated Ecolab's Billings Division

Alwood also argued that because Ecolab is a large company that had a

strong financial performance Company-wide while he was on leave, this
demonstrates that his indefinite absence did not pose an undue hardship. While
courts may consider a company's overall financial resources in determining the
reasonableness of an accommodation, that is but one of many factors. Another
factor the Court must consider is the "overall financial resources of the facility or
facilities involved in the provision of the accommodation, the number of persons
employed at the facility, the effect on expenses and resources of the facility, and
other impacts of the accommodation on the operation of the facility." Mont.
Admin R. 24.9.606(5)(b ). In this case, the "facility" involved in the
accommodation was the Billings District. And as discussed above, keeping the
DM position vacant imposed substantial hardships on the Billings District in terms
of lost sales, lost customers, and lost TMs.
41.

In short, because (1) Alwood's absence would have continued to

adversely impact Ecolab's relationship with its customers, thereby affecting its
sales; and (2) because it negatively impacted other employees, both in terms of the
support they were receiving, their ability to service customers, and their morale,
the Court concludes that continuing to keep the Billings DM position vacant
amounted to an undue hardship.
51

C.

42.

Ecolab was not obligated to engage in the interactive
process with Alwood after he received a foll-release to
work.

Alwood next claims that Ecolab violated Montana's disability

discrimination statute by failing to engage with him in the interactive process after
he received full clearance to work. This argument fails for two reasons. First, after
Alwood was cleared to work without restrictions, Ecolab had no obligation to
engage in the interactive process. Second, to the extent Ecolab was obligated to
engage in the interactive process with Alwood following his return to work, Ecolab
met that obligation.
43.

An employee is entitled to an "interactive process" only when he or

she suffers from a "disability," as defined under Montana law. McDonald, 214
P.3d 749, 767; Broussardv. Univ. of Cal., 192 F.3d 1252, 1259 (9th Cir. 1999)
(the failure to engage in the interactive process was "negated by the fact that [the
plaintiff was] not disabled."). Here, Alwood and his therapist acknowledged that,
as of December 16, 2013 - the date he was cleared to work - he did not suffer from
a disability requiring an accommodation. (Trial Tr. 97: 19-25). To the contrary, his
December 16, 2013 release stated that he was cleared to work "without
restrictions." (Ex. 102, Doc. 103-2 at 11). Because there is no evidence that
Alwood continued to suffer from a disability after December 16, 2013, Ecolab had

52

no legal obligation to engage with him in the interactive process. See Broussard,
192 F.3d at 1259.
44.

To the extent Ecolab did have an obligation to engage in an

"interactive process" with Alwood following his clearance to work, Ecolab met its
obligations. Though Ecolab generally gives employees who are replaced while on
leave 30 days to find a new position, Ecolab gave Alwood 56 days. (Trial Tr.
943:14-17; 946:2-24; Exs. 110, 120, Docs. 103-2 at 22, 44). During those 56 days,
the only position Alwood applied for was a Safety, Health, and Environment
position located in St. Paul, MN. (Agreed Facts iii! 11-12, Doc. 81). Because
Alwood did not meet the minimum educational requirements for the position, a
different candidate was chosen. (Trial Tr. 986:25-989: 1). Al wood asserts that
Ecolab has made exceptions to minimum requirements with respect to other
positions. Yet, as Bruce Weiss testified, Ecolab would not, and could not, make an
exception for the Safety, Health, and Environment Specialist, since that position
had direct responsibility for customer and company safety. (Id. at 988: 1-10).
Moreover, as discussed below, the Safety, Health, and Environment Specialist
position required relocation to St. Paul, and Alwood acknowledged that he was
unwilling to leave the Billings area. (Id. at 988: 16-19).
45.

During the 56 days following Alwood's return from leave, Ecolab

provided him with a list ofDM positions that the Company anticipated would

53

become available in the near future. (Ex. 24, Doc. 103-1 at 39). Alwood,
however, was not interested in any of those positions, as they all were located
outside of the Billings District. (Id. at 937:11-939:8). Alwood, nonetheless,
suggests that Ecolab was required to find him a comparable position in the Billings
District. But no such positions were open in the Billings District following
Alwood's clearance to work. (Id. at 498:11-15; 499:16-18). As a result, for
Alwood to re-join the Billings District, Ecolab would have had to either create a
new position just for him or else remove another employee from his or her
position. Even assuming Ecolab had a duty to accommodate Alwood after he
received a full work release, that duty did not require the Company to create a new
position or remove others from their positions. See Wellington v. Lyon County
School Dist., 187 F.3d 1150, 1155 (9th Cir. 1999) (school district did not have a

duty to create a new position to accommodate disabled employee); Sevcik v.
Unlimited Const. Servs., Inc., 462 F. Supp. 2d 1140, 1148 (D. Hawaii 2006)

(employer is not obligated to create a new position to accommodate disabled
employee or remove an existing employee from the position that the disabled
employee now desires); Staub v. Boeing Co., 919 F. Supp. 366, 371 (W.D. Wash.
1996) (same).
46.

Alwood also asserts that Ecolab could have promoted him to the

position of Area Manager. But, as a matter of law, Ecolab is not obligated to

54

promote him as a part of an accommodation. See, e.g., Hedrick v. Western Reserve

Care Sys., 355 F.3d 44, 457 (Fed. Cir. 2004) ("The ADA does not require an
employer to offer an employee a promotion as a reasonable accommodation.")

Malabara v. Chi. Tribune Co., 149 F.3d 690, 699 (7th Cir. 1998); Cassidy v.
Detroit Edison, 138 F.3d 629, 634 (6th Cir. 1998); Shiring v. Runyon, 90 F.3d 827,
832 (3d Cir. 1996); Gomez. v. American Bldg. Maintenance, 940 F. Supp. 255, 260
(N.D. Cal. 1996); Staub, 919 F. Supp. at 37. Further, Alwood's suggestion that he
would have performed as an AM also ignores the fact that the AM position would
have required him to move from Billings. Both Alwood and his wife made clear
that their ties to Billings - his wife's job, their daughter and her husband, their three
grandchildren - made the prospect of moving completely unattractive. Trial Tr.
113: 1-115:2; 482:2-483: 1.
47.

In short, Ecolab was not obligated to reasonably accommodate

Alwood once he no longer suffered from a disability. Moreover, the evidence
presented at trial proved that Ecolab was ready, willing, and able to put Alwood in
a position for which he was both interested and qualified. Alwood's failure to
express any legitimate interest in finding alternative positions is what broke down
the interactive process. Zivkovic, 302 F .3d at 1089 (holding that "[l]iability for
failure to provide reasonable accommodations ensues only where the employer
bears responsibility for the breakdown" in the interactive process"); Daley v.

55

Cablevision Sys. Corp., 2016 WL 880203, at *6 (S.D.N.Y. March 7, 2016)
(holding that an employee's disability discrimination claim based on a failure to
accommodate failed because he only had applied for only a single alternative
vacant position). As a result, to the extent Ecolab had an obligation to engage in
the interactive process with Alwood, it did so.

II.

Alwood's Retaliation Claims Fail
48.

Alwood also claims that Ecolab retaliated against him for taking a

leave of absence. He asserts Ecolab' s decision to replace him as the Billings DM
in November 2013 amounted to an act of retaliation. He similarly claims that the
decision to terminate his employment in February 2014 was retaliatory.
49.

For Alwood to prevail on either of his retaliation theories, he must

prove by a preponderance of the evidence that: (1) he engaged in protected
activity; (2) he subsequently was subject to an adverse employment action; and (3)
a causal link exists between the protected activity and the adverse action. Rolison

v. Bozeman Deaconess Health Servs., Inc., 111 P.3d 202, 206 (Mont. 2005).
Under the familiar burden-shifting analysis, if Alwood articulates a primafacie
case, Ecolab must provide a legitimate, non-retaliatory reason for its actions. Id. at
496. Once Ecolab does so, Alwood must produce evidence that establishes his

primafacie case as well as evidence that raises an inference that Ecolab's proffered
reason is pretextual. Id.

56

A.
50.

Alwood failed to prove that Ecolab replaced him in
retaliation for his taking disability leave.

Ecolab established that it replaced Alwood as the Billings DM

because it did not know when or if Al wood would return from leave, and because
in the absence of a DM, the Billings District was experiencing significant
difficulties. This constitutes a legitimate, non-retaliatory basis for Ecolab' s
decision.
51.

Because Ecolab articulated legitimate, non-retaliatory reasons for

naming a new Billings DM, the burden shifted to Alwood both to "produce
evidence that establishes his primafacie case," as well as to produce evidence that
raises an inference that Ecolab's proffered reason is pretextual. Rolison, 111 P.3d
at 206. Alwood has done neither.
52.

First, Alwood did not offer any evidence establishing that retaliatory

animus arising from his decision to take leave caused his subsequent replacement.
As described at length above, the evidence shows that Ecolab replaced Alwood due
its uncertainty about when or whether he would return to work, and because in his
absence, the significant problems already existing in the Billings District
worsened. Because Alwood failed to prove the requisite causation, he did not
establish his prima facie case of retaliation.
53.

Second, Alwood cannot demonstrate that Ecolab's proffered

legitimate reasons for naming a new Billings DM were pretextual. Again, the

57

evidence demonstrated that the Billings District was struggling in 2013. Alwood
himself detailed these problems in his letter to Ecolab's CEO. Moreover, the
fragile condition of the District was exacerbated as a result of Alwood's indefinite
leave. The evidence further establishes that Ecolab legitimately concluded it had
to hire a new Billings DM to address these problems. Indeed, beginning in earlySeptember 2013, Salstrand communicated with Ecolab's HR Department about the
District's problems, and about how to go about resolving them. (See Ex. 7, Doc.
103-1 at 14; see also Trial Tr. 803 :7-15). Because Al wood has offered no
evidence showing that Salstrand was fabricating his concerns about the District,
concerns Al wood himself described in various documents, he cannot show pretext.
54.

As long as Salstrand replaced Alwood because he believed the

Billings District needed a DM, then his decision was not based on retaliatory
animus. Nealey v. Water Dist. No. 1 ofJohnson Cty., 324 F. App'x 744, 748 (10th
Cir. 2009) ("We consider the facts as they appeared to the person making the
decision, and we do not second-guess the employer's decision even ifit seems in
hindsight that the action taken constituted poor business judgment. ... The court
does not 'act as a super personnel department, second guessing employers'
honestly held (even if erroneous) business judgments") (citing cases); Cooper v.
United Air Lines, Inc., 82 F. Supp. 3d 1084, 1111 (N.D. Cal. 2015) (same);

58

Hutchins v. DIRECTV Customer Serv., Inc., 963 F. Supp. 2d 1021, 1032 (D. Idaho
2013) (same).
55.

Again, in addition to the testimony Salstrand gave at trial, his real

time communications to Ecolab's HR Department illustrates that he was genuinely
concerned about the Billings District, its TMs, and its customers. (Ex. 7, Doc.
103-1 at 14). Marina Pariseau similarly testified that she believed Salstrand was
truly worried about the state of the Billings District in the absence of a DM. (Trial
Tr. 803 :7-15; 806: 14-24; 831:1-4). Alwood provided no evidence to rebut this
testimony. On the contrary, he admitted at trial that he did not actually know
whether Ecolab retaliated against him for taking leave. (Id. at 263 :12-18).
Alwood has failed to establish his retaliation claim by a preponderance of the
evidence.
B.
56.

Alwood failed to prove that Ecolab terminated him in
retaliation for his taking disability leave.

Alwood also failed to prove that the decision to tenninate his

employment resulted from retaliatory animus. Again, Ecolab offered substantial
evidence that it tenninated Alwood's employment not because he took disability
leave, but because he was unable or unwilling to identify any positions for which
he was qualified. See Part LB, supra. This also is a legitimate, non-retaliatory
basis for Ecolab's decision to tenninate Alwood's employment. See Alston v.
Microsoft Corp., 851 F. Supp. 2d 725, 732 (S.D.N.Y.) ajf'd 519 F. App'x 23 (2d

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Cir. 2013) (holding that plaintiffs refusal to respond to defendant's "repeated and
unavailing efforts to arrange for [plaintiff] to return to work" and ultimate failure
to return to work constituted a legitimate reason for termination).
57.

Alwood did not offer evidence to rebut Ecolab's legitimate reasons for

terminating his employment. Indeed, he acknowledged that he applied for only a
single position, and he acknowledged he did not meet the requirements of that
position. (See Part I.C, supra). There is also no dispute that Ecolab presented him
with multiple other DM opportunities, and that he was not interested in any of
them. (Id.). Al wood admitted at trial that Ecolab ended his employment because
he could not find an alternative position after he returned from leave. (Trial Tr.
262:25-265:5). For these reasons, Alwood's second retaliation theory also fails.
58.

Because the Court has determined that Ecolab neither engaged in

disability discrimination nor retaliated against Alwood, it need not consider
Alwood's claim for damages.

III.

Conclusion
For the reasons stated above, Plaintiffs request for relief on all claims is

denied. The Court will enter judgment in favor of Defendant Ecolab, Inc.
ORDER
The Court having conducted a bench trial on the issues of Robert Alwood's
claims of alleged discrimination and retaliation, and upon consideration of the

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parties' proposed findings of fact and conclusions of law (Docs. 116, 11 7), and
other relevant filings on the record before the Court, and for the reasons set forth
above, IT IS HEREBY ORDERED that Plaintiff Alwood's claims for relief are
DENIED. The Clerk of Court is DIRECTED to enter judgment for the defendant
Ecolab, Inc., and against the plaintiff, Robert Al wood. The Clerk of Court is also
DIRECTED to terminate all pending motions as moot.
IT IS SO ORDERED.
~

DATED thi' dZ'day of Mm-ch,~ ..

~~::::___:_---'-------...___,-'--~"-...-=.:"
uA=-=~===­
SUSAN P. WATTERS
United States District Judge

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