Alwood v. Ecolab, Inc.

Filing 36

ORDER GRANTING as to Alwood's age discrimination claim and DENIED as to all other claims 22 Motion for Summary Judgment Signed by Judge Susan P. Watters on 4/12/2016. (AMC, )

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

FILED
APR 12 2016
Clerk: us o· .
Distnct 01 ;;;~1 ctt court
n ana
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B111Jngs

ROBERT ALWOOD,
CV 14-101-BLG-SPW
Plaintiff,
vs.

OPINION AND ORDER

ECOLAB, INC.,
Defendants.
Plaintiff Robert Alwood filed this action against his former employer,
Defendant Ecolab, Inc., for disability discrimination, age discrimination,
retaliation, and wrongful discharge. (Doc. 1-1 ). Alwood seeks compensatory and
punitive damages. (Id. at 15-16). Now pending is Ecolab's motion for summary
judgment on all of Alwood's claims. (Doc. 22). Alwood concedes summary
judgment on his age discrimination claim. (Doc. 29 at 33). As discussed below,
genuine issues of material fact exist respecting the remaining claims. Accordingly,
the Court grants Ecolab's motion in part and denies it in part.

I.

Statement of Facts
Ecolab is an international company operated out of Minnesota. (Doc. 30 at ii

7). Ecolab hired Alwood in 1990. (Id. at ii 17). He was promoted to district
manager for Ecolab's Billings District in 1998. (Id. at ii 20). The Billings District

1

is part of the larger Rocky Mountain District, which covers Colorado, Idaho,
Montana, Utah, and Wyoming. (Doc. 25, ii 4). As the Billings district manager,
Alwood was responsible for leading and managing territory managers over
virtually the whole state of Montana so that Ecolab could achieve sales and
customer satisfaction goals. (Doc. 30. at 128; Doc. 32, 114).
After 23 years with the company, Alwood began suffering work-related
anxiety and depression in the spring of2013. (Doc. 32at13). He treated with
Karen Keitzman, a psychologist to address his issues but continued working. (Id.
at 14). In March and April 2013, Alwood received written warnings from
management addressing work-related issues. (Doc. 30at130). In May 2013,
Alwood visited Keitzman because he was depressed and anxious. (Id. at ii 53).
Keitzman concluded that Alwood was again suffering from severe depression and
anxiety. She began treating him with regular therapy sessions. (Id. at ii 54).
On August 13, 2013, Alwood received a final written warning about his
performance at work. (Id. at ii 58). The next day, Alwood submitted a letter from
Keitzman to Ecolab's Disability Case Manager Shelly Burgess, stating he needed
to take a leave of absence from work. (Id.) Neither Keitzman's letter nor her
accompanying Physician's Statement of Disability provided how long Al wood
would be absent. (Id. at 160). Burgess immediately placed Alwood on Ecolab's
Short-Term Disability Plan, which allows employees up to 180 days of leave. (Id.
2

at if 63). Because Alwood was excused from work beginning on August 13, 2013,
he was eligible to remain on leave until February 10, 2014. (Id. at 64).
Burgess notified Ecolab's Human Resources Representative Katie Bjorkman
that Alwood was out on leave, effective August 15, 2013. (Bjorkman Depa. 63:67, Doc. 31-13). Bjorkman added Alwood to her tracking spreadsheet for all
disability leaves and then notified Scott Salstrand, Alwood's Area Manager, via
email that Al wood was out on leave. (Id. at 63: 19-20; Doc. 31-14). 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. (Id.)
Bjorkman also forwarded Salstrand Ecolab's "Short Term Disability Manager
Toolkit" which instructed that the manager should provide Bjorkman with updates
on the employee. (Doc. 31-4; 31-19; Bjorkman Depa. 76:22-25, Doc. 31-13).
Salstrand sent Alwood an email on August 15, 2013, wishing him a speedy
recovery. (Doc. 31-21 ). Sal strand never spoke with Al wood again. (Sa/strand

Depa. 181:12-14, 184:10-21, Doc. 31-2)).
At some point after Alwood went out on leave, Salstrand notified Alwood's
team that Al wood was on a leave of absence. (Id. at 123: 13) Salstrand routed
Al wood's customer calls to himself and another district manager, Brian Last. (Id.
at 125:17-21). Last understood that while Alwood was out, he was the primary
point of contact for territory managers in the Montana District. (Last Depa. 15:213

16:1, Doc. 31-1). He received several calls a week, but did not feel he was unable
to cover for Al wood. (Id. at 30: 17-20). He did not recall any personnel issues or
loss of sales while Alwood was out. (Id. at 15: 105; 24: 14-22). Prior to Alwood's
leave of absence, Terry Eckhard, a territory manager, expressed dissatisfaction
with Alwood's lack of support to Salstrand. (Doc. 28 at if 6). Last also
experienced difficulties with Terry Eckhard, but Eckhard never complained to Last
that he lacked training or was not supported by Alwood. (Id. at 18:11-19:6).
While Alwood was out on disability leave, Town Pump, one ofEcolab's
largest customers in the Billings District, began using a competitor for its Bozeman
hotel. (Doc. 28 at if 14). Salstrand became concerned that Town Pump would
discontinue using Ecolab for all of its hotels, which would have been catastrophic
for the Billings District. (Id.) While Alwood was out, Ecolab's relationship with
another client, Sysco Foods, began to suffer. (Id. at if 15). Salstrand received
complaints from Sysco that Ecolab's territory managers were not engaging in
relationship building with Sysco. (Id. at if 15). Another district manager, not
Alwood, was the liaison between Sysco and Ecolab. (Sa/strand Depo. 93:11-15,
Doc. 31-2). Salstrand does not remember if he traveled to Montana once during
Alwood's disability leave. (Id. at 122:23-123: 10).
On September 6, 2013, three weeks after Alwood went on leave, Salstrand
contacted Human Resources Manager Maria Pariseau and asked ifthere were any
4

"options" with respect to Alwood's position. (Id. at 138:24-139:1; Doc. 32-20).
Three days later Pariseau informed Salstrand that Alwood would be out another
month and from a legal standpoint, Al wood's job was "protected," so they would
need to wait the month out and request additional documentation from Alwood's
doctor. (Doc. 31-20). Salstrand pressed Pariseau on why Al wood was out. (Id.)
On September 15, 2013, Pariseau informed Salstrand that HIPAA laws prevented
her from disclosing why, but that she was not confident they could present an
argument to the legal department that Al wood would not return. (Id.) On the same
day, Alwood submitted a note to Burgess from his medical provider that he was on
an 8-week treatment plan. (Doc. 30 at i! 76(a)). Burgess and Salstrand were
responsible for communicating with Bjorkman in Human Resources regarding
Alwood's return to work date. (Bjorkman Depa. 79:7-13, Doc. 31-13). Salstrand
did not contact Bjorkman for any updates on Alwood's status. (Id. at 77:5-7).
Salstrand emailed Pariseau again on September 26, 2013, and told her that
"things were beginning to boil over in Montana," and that if they waited much
longer, "the business and personnel losses will be quite substantial." (Doc. 31-20)
On November 1, 2013, Burgess contacted Alwood for the first time to inquire
about his return date. (Doc. 31-10 at 6) Alwood informed her that he did not have
an exact return date but had an appointment with his doctor on November 11,
2013, was making progress, and expected to be able to return in December.

5

------------~

(Burgess Depa. 62:20-63:9, Doc. 31-9). Salstrand replaced Alwood as District

Manager the same day. (Sa/strand Depa. 174:2-7; Doc. 31-2). Alwood believed
that according to Ecolab's policies, he could not be replaced until six months had
elapsed. (Atwood Dec.

1 13, Doc. 32).

Last shared this belief. (Last Depa. 33: 17-

34:6, Doc. 31-1 ).
On November 12, 2013, Alwood submitted a note from his medical provider
that he may be able to return to work on December 16, 2013, depending on his
response to further treatment. (Burgess Depa. 62:20-63:9, Doc. 31-9). On
December 16, 2013, Alwood was cleared to return to work. (Doc. 31-18). Burgess
emailed Bjorkman and advised her that Atwood had been fully released to return to
work. (Id.) Alwood contacted Bjorkman the next day about returning to work, but
did not receive a call back. (Bjorkman Depa. 135:3-14, Doc. 31-13). He called
again on December 19, 20, and 27th, about returning to work, but again received
no return calls. (Id. 135:1-24). Although the dates vary, it appears Bjorkman may
have advised Alwood that he had been replaced as district manager in November,
but more likely sometime in late December or early January. (Comp. id. at 87:1521; Doc. 25at1).
On January 2, 2014, Alwood sent an email to Bjorkman expressing
frustration that no one had returned his calls so he did not know his position or to
whom he should report since he had been removed as district manager. (Doc. 316

23). On the same day, Bjorkman advised Alwood via letter 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. (Doc. 25-5) She also advised him that if
he identified any positions that required him to relocate, he would need to do so at
his own expense. (Id.) On January 6, 2014, Alwood applied for the Safety, Health
and Environmental Specialist position and received an automatic reply that his
application was being reviewed. (Doc. 25-6).
The next day, Al wood emailed Bjorkman for a list of openings for district
manager positions, area manager positions, and Corporate Accounts positions,
because jobs in these categories were not posted online. (Doc. 25-7). Al wood
informed Bjorkman he was willing to look at all locations available. (Id.) On
January 13, 2014, Bjorkman emailed Alwood a list of open district manager
positions located in Virginia, California, Nevada, Minnesota, Wisconsin, Texas
and New Jersey. (Doc. 25-8) Although Salstrand was Alwood's direct manager
and the person who was most familiar with open positions in the Rocky Mountain
Region, Bjorkman did not consult with Salstrand about any potential open
positions. (Sa/strand Depo. 221: 16-21; Doc. 31-2)
Alwood's application for Safety Specialist was ultimately rejected because
he did not meet the minimum qualifications required for the position. (Bjorkman

Depo. 129:4-6, Doc.31-13). Ecolab unilaterally decided to extend the 30 days to
7

56 days. On February 10, 2014, Alwood was terminated from Ecolab as of
February 6, 2014, for failing to locate an open position in which he was interested
and qualified within 56 days. (Doc. 31-24).

II.

Legal Standard
Summary judgment is proper when "the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there is no genuine issue
as to any material fact and that the movant is entitled to judgment as a matter of
law." Fed.R.Civ.P. 56(c). An issue is "genuine" only ifthere is a sufficient
evidentiary basis on which a reasonable fact finder could find for the nonmoving
party and a dispute is "material" only ifit could affect the outcome of the suit
under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).
In considering a motion for summary judgment, the court "may not make
credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing
Prods., 530 U.S. 130, 150 (2000); Anderson, 477 U.S. at 249-50. The Court must
view the evidence in the light most favorable to the non-moving party and draw all
justifiable inferences in the non-moving party's favor. Anderson, 477 U.S. at
255; Betz v. Trainer Wortham & Co., Inc., 504 F.3d 1017, 1020-21 (9th Cir.
2007).

8

III.

Discussion
A.

Atwood's Disability Discrimination Claim

Ecolab argues that Alwood's disability claim is subject to summary
judgment because Al wood did not present sufficient evidence for a prima facie
claim. That is, he failed to establish that he was a "qualified individual with a
disability," or that keeping his position open "indefinitely" was a reasonable
accommodation. The Court addresses these arguments in tum.

1.

Montana Human Rights Act

Under the 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). Physical or mental
disability includes "a physical or mental impairment that substantially limits one or
more of a person's major life activities; (ii) a record of such impairment; or (iii) a
condition regarded as such an impairment." M.C.A § 49-2-101(19)(a). A mental
impairment can be a mental or psychological disorder, including emotional or
mental illness such as major depression. Pannoni v. Board of Trustees, 90 P.3d
438, 444 (Mont. 2004). Work is considered a major life activity. Id.
Discrimination based on physical or mental disability includes "the failure to
make reasonable accommodations that are required by an otherwise qualified
9

person who has a physical or mental disability." MCA§ 49-2-101(19)(b). A
person with a physical or mental disability is qualified to hold an employment
position "if the person can perform the essential functions of the job with or
without a reasonable accommodation for the person's physical or mental
disability." Pannoni, 90 P.3d 438 at 444 (citing Admin. R.M. 24.9.606(2)); see
also 29 C.F.R. app. § 1630.9 ("An individual with a disability is 'otherwise
qualified' ... ifhe or she is qualified for a job, except that, because of the
disability, he or she needs a reasonable accommodation to be able to perform the
job's essential functions.")
The determination as to whether an individual is a "qualified individual with
a disability" must be made at the time of the employment decision. Id. at 444-45.
If, even with a reasonable accommodation, a person is unable to perform the

essential job functions, he is not a qualified person. Id. It is the employee's
burden to prove that he can perform the essential job functions for a position in
order to establish he is a qualified person. Id. If a reasonable accommodation
available to an employer could plausibly enable a disabled employee to adequately
perform his job, an employer is liable for failing to attempt that accommodation.
Id. at 319 (citing Kimbro v. Atlantic Richfield Co., 889 F.2d 869, 879 (9th Cir.
1989)).

10

a.

Qualified Individual

Ecolab argues that because Alwood could not perform the essential
functions of his job on the day Ecolab replaced him as district manager, Alwood
was not a "qualified individual with a disability" and, as a result he cannot
establish a prima facie disability claim. Ecolab is wrong.
Under Ecolab's theory, only a person who could work despite their disability
on the day of the employment decision could make a prima facie case for disability
discrimination. This interpretation of the law is illogical and would preclude
virtually all disability discrimination claims. For example, if a painter broke his
arm on Monday, and his employer filled his position on Friday, Ecolab suggests
that the painter is a "qualified individual with a disability" only if, with his broken
arm, he could have painted on Friday.
But the full question under the law is whether at the time of the employment
decision, the employee can perform the essential functions of his job assuming the
employer provides him a reasonable accommodation. (Emphasis added). See also
Kimbro, 889 F.2d at 878 ("As long as at the time of [the employee's] termination,
there were "plausible reasons to believe that the handicap [could have been]
accommodated" by the leave of absence, [the employer] is responsible for its
failure to offer such a leave.") Thus, with respect to the painter - the appropriate
question is - as of Friday, was the painter qualified to paint, assuming his employer

11

provided him with a reasonable accommodation (such as time off work to heal his
broken arm). By failing to include the accommodation element and instead only
focusing on Alwood's disability during the time of his short term disability leave,
Ecolab misapplies the "qualified individual" requirement.
A qualified individual with a disability is someone who is qualified for a job,
except that, because of the disability, he needs a reasonable accommodation to be
able to perform the job's essential functions." Pannoni, 90 P.3d at 445. Here,
Al wood was qualified for his job on the day Ecolab replaced him, but he needed a
reasonable accommodation - here, a leave of absence - to perform the job's
essential functions. See Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1247
("Unpaid medical leave may be a reasonable accommodation under the ADA ....
Even an extended medical leave, or an extension of an existing leave period, may
be a reasonable accommodation if it does not pose an undue hardship on the
employer") (internal citations omitted).
The Court will assume for purposes of this query that the leave Alwood
requested was a reasonable accommodation. There is no dispute that Alwood was
otherwise qualified to perform his job requirements. After the accommodation
period, Alwood was qualified to perform the essential functions of his position and
his medical provider indicated that he was capable of performing his job at that

12

point. Alwood has established that he was a "qualified individual with a
disability" as of November 7, 2013.

b.

Reasonable Accommodation

Ecolab contends that, even assuming Alwood was a qualified individual, it
did not violate the Human Rights Act because the accommodation Alwood
requested was not reasonable. Under Montana law, "[a]n 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" or "would endanger the
health or safety of any person." Admin. R.M. 24.9.606(4), (6). The burden of
proof is on the employer. Id. In the summary judgment context a court should
weigh the risks and alternatives, including possible hardships on the employer, to
determine whether a genuine issue of material fact exists as to the reasonableness
of the accommodation. Nunes, 164 F.3d at 1247.
Ecolab argues that keeping the Billings district manager position open
indefinitely while Alwood remained on leave was not reasonable. Alwood
sufficiently raised genuine issues of material fact regarding this contention,
however. First, Alwood argues that his medical provider informed Ecolab that he
was on an eight week treatment program. (Doc. 30 at 'If 76(a)). Ecolab disputes
this fact. Alwood testified he told Ecolab's HR that he was coming back in
13

December. Ecolab disputes this fact as well. These material facts are central to the
question of whether Ecolab had reason to believe Alwood's leave was indefinite.
Additionally, the evidence in the record is that no one at Ecolab ever asked
Atwood how long he intended to remain out on leave. This is true despite the fact
that Ecolab's Short-term Disability Supervisor/Manager Toolkit (Doc. 31-19) and
Bjorkman's email to Salstrand on August 15, 2013, (Doc. 31-5), advise the
supervisor to communicate with the employee and ask the employee for an
expected time to come back to work. This evidence provides a prima facie case of
discrimination and raises a genuine issue of material fact as to whether Ecolab had
reason to believe Alwood's disability leave was indefinite.
Ecolab also argues that Alwood's leave was unreasonable because it
required his co-workers to work harder. Specifically, Ecolab argues that Salstrand,
Brian Last, and various territory managers had to do Al wood's job on top of
fulfilling their own duties. (Doc. 23 at 28). Atwood points out, however, that
Brian Last was the individual covering for Atwood while he was out and Last
testified he had no problems covering the Montana District. (Last Depa. 15: 1-5;
Doc. 31-1) Salstrand could not remember whether he had been required to travel
to Montana to assist. And no one was tasked with Atwood's leadership duties.
The evidence is disputed whether anyone at Ecolab had to work harder because of
Atwood's absence.
14

Alwood went out on short term disability leave with Ecolab's approval,
whose short term disability policy included paid leave of up to six months.
Throughout the leave period, Al wood submitted medical documentation to Ecolab
that may have first indicated he was on an eight week treatment plan and
eventually reported that he would be able to return in December 2013. In Kimbro,
the Ninth Circuit recognized that an employee who suffered from acute migraine
episodes was justified in requesting a temporary leave of absence as an
accommodation for his disability where the leave would have allowed his doctor to
formulate an effective treatment. Kimbro, 889 F.2d at 879.
Like in Kimbro, Alwood has offered evidence tending to show that his leave
would be temporary. In fact, when Alwood was replaced as district manager, he
had not yet exhausted his short term disability leave. Alwood did not ask for more
leave than would be granted to any other short-term disability employee at Ecolab.
Both Alwood and Brian Last testified it was their understanding that an employee
could not be replaced until the short term disability leave was exhausted. Finally,
no one at Ecolab had even inquired when he was coming back. This evidence
taken together raises a genuine issue of material fact as to whether Alwood's leave
of absence, projected to extend to December 2013, was a reasonable
accommodation. Summary judgment is not appropriate.

15

B.

Alwood's Retaliation Claim

To establish a prima facie case of retaliation under Montana law, an
employee must be able to show that (1) he engaged in a protected activity, that (2)
he was thereafter subjected to adverse employment action by his employer, and
that (3) there was a causal link between the two. Rolison v. Bozeman Deaconess

Health Services, Inc., 111 P.3d 202 (Mont. 2005). To establish causation between
a protected act and an adverse employment action, the employee must demonstrate
that engaging in the protected activity was one of the reasons for the adverse
employment action. Villiarimo v. Aloha Island Air, 281 F.3d 1054, 1064-65 (9th
Cir. 2002). The Ninth Circuit has recognized that in some cases, causation can be
inferred from timing alone; however, the adverse employment action must have
occurred fairly soon after the employee's protected expression. Id.
If the plaintiff establishes a prima facie case, the burden shifts to the

employer to offer a legitimate non-retaliatory reason for the adverse employment
action. Id. at207;seealsoDavisv. TeamElec. Co., 520F.3d 1080, 1088-89, 1091
(9th Cir. 2008). If the employer offers such a reason, the burden then shifts back to
the plaintiff to show that there is a genuine dispute of material fact as to whether
the employer's proffered reason for the challenged action is pretextual. Id. at 20607.

16

Alwood asserts Ecolab retaliated against him for taking time off due to his
disability. (See Doc. 1-1 at 9). Ecolab argues that Alwood has failed to allege a
prima facie case of retaliation. It also argues that Alwood cannot establish a causal
link between Alwood's filing of the disability claim and his termination.
1.

Prima Facie Case

The Court finds that Al wood sets forth a prima facie case of retaliation for
requesting an accommodation. First, Alwood has provided sufficient evidence that
he was engaged in a protected activity - specifically that he requested an
accommodation for his disability. See Coons v. Sec '.Y of US. Dep 't of Treasury,
383 F.3d 879, 887 (9th Cir. 2004) ("the ADA prohibits an employer from
retaliating against an employee who seeks an accommodation in good faith.")
Al wood had a history of depression and a doctor's note requesting leave. There's
no evidence he sought the accommodation in bad faith.
Second, Ecolab subjected Alwood to an adverse employment decision after
his request for leave. He was removed from his district manager position on or
about November 1, 2013. See Admin. R. Mont. 24.9.603(2)(b) (Adverse
employment actions include discharge and demotion). Third, there appears to be a
causal link between the protected activity and Ecolab's action, because Alwood
took short term disability leave at the end of August 2013, his supervisor started

17

discussing his replacement in September 2013 and had replaced him by November
2013. The Court finds that causation may be inferred from this timing alone.
Because Alwood successfully sets forth a prima facie case of retaliation for
taking disability leave, Ecolab must articulate a "legitimate, non-discriminatory"
reason for its employment decisions. See Rolison, 111 P.3d 202, 207. Ecolab has
offered two reasons to justify its replacement of Alwood as district manager.' At
the time it replaced him, Ecolab argues that it believed the District was
experiencing severe problems in the absence of a leader and it did not know when
he was going to return. (Doc. 23 at 29, Doc. 33 at 15). These are legitimate, nondiscriminatory reasons for Alwood's replacement as district manager. Therefore,
the burden shifts to Alwood to put forth evidence that Ecolab's reasons are
pretextual. Rolison, 111 P.3d at 207.
2.

Pretext

Alwood has two avenues available for showing that Ecolab's legitimate
explanation for filling his position is actually a pretext for retaliation. Hafner, 268
886 P.2d at 953. Pretext may be proved directly, by persuading the court that a
discriminatory reason more likely motivated the employer, or indirectly, by
showing that the employer's proffered explanation is unworthy of credence.
1

Ecolab points out that Alwood did not plead in his Complaint that Ecolab terminated him in
retaliation for filing a complaint of discrimination. Accordingly, the Court limits him to this
theory and does not analyze that contention. See Patel v. City ofLong Beach, 564 Fed. Appx.
881, 882 (9th Cir. 2014).

18

Hearing Aid Inst. v. Rasmussen, 372, 852 P.2d 628, 632 (Mont. 1993); see also
Stegall v. Citadel Broadcasting Co., 350 F.3d 1061, 1066 (9th Cir. 2003).
There is substantial credible evidence sufficient to persuade the Court that a
reasonable trier of fact could find that Ecolab' s proffered explanation for replacing
Alwood as district manager is unworthy of credence. Ecolab's contention that its
business suffered during and because of Alwood's absence seems to be
contradicted by the evidence in the record. At the time Al wood was replaced,
Al wood's region was at the top of all of the districts in the Rocky Mountain region
in terms of projected year end percentage of budget and retained key percentage at
the time. (Sa/strand Depa. 219:15-220:7, Doc. 31-2). This weighs against
Salstrand' s assertion that the District was in dire straits. Similarly, Brian Last, the
individual tasked with managing the Billings District while Alwood was out,
testified that Ecolab did not experience any sales loss during Alwood's absence nor
did he recall dealing with any personnel issues in the Billings District while
Alwood was absent. (Last Depa. 15:1-5, Doc. 31-1)
Similarly, a trier of fact could find that Ecolab' s contention that legitimate
business problems in the Billings District caused it to replace Alwood is
unsupported by the record. While Salstrand testified that district managers are
responsible for team leadership of territory managers and route sales managers, he
could not remember traveling to Montana while Alwood was out, (id. at 122:2319

123: 10), and he testified that he never considered any other option for the district
manager position other than replacing Al wood. (Id. atl 71 :4-8, Doc. 31-2) Even
when things were allegedly "boil[ing] over in Montana" and Pariseau advised him
that "legal would not approve a replacement," Salstrand did not contact Alwood
regarding his return or to tell him that Ecolab was considering his replacement, (id.
178:24-179: 14), nor did he look into temporarily filling the position or giving
another employee a temporary promotion to assist with the "lack of leadership"
while Alwood was out. (Id. at 171:4-14) This evidence casts doubt on Ecolab's
contention that severe business issues directly related to Alwood's absence existed
at the time he was replaced.
Although Ecolab argues that it replaced Alwood because it did not know
when he was going to return, a jury could find from the evidence that Sal strand
never attempted to discover Alwood's return date. Salstrand admitted in his
deposition that after his initial email to Alwood, he did not contact Alwood during
Alwood's absence for any reason, including his return date, because he "felt bad
for him." (Id. at 113:23-114:2). This is true despite the fact that Bjorkman advised
Salstrand he should "ask the employee an expected time to come back to work"
and "stay connected with your employee on leave," in her August 15, 2013, email.
(Doc. 31-5).

20

Similarly, Ecolab's Short Term Disability Toolkit that Bjorkman forwarded
to Salstrand advised Salstrand that he should "maintain contact with the employee"
and "keep HR generalist updated with information received from employee."
(Doc. 31-19 at 2). Despite these promptings, Salstrand did not contact Alwood
when things began to "boil over" less than a month after Alwood was gone, or
before he inquired with Pariseau about replacing Alwood in September, or before
replacing Alwood with Bryan Gentry in November. (Sa/strand depo. at 113:23-25,
Doc. 31-2). In fact, Ecolab's first time reaching out to Alwood for an update on
his condition was through Burgess on or about November 1, 2013. (A/wood Depo.
at 156:12-23, Doc. 31-4). Ecolab replaced Alwood the same day. (Doc. 31-12).
Based on these facts, a reasonable trier of fact could conclude that Ecolab's
proffered explanation that it did not know when Alwood would return is merely
pretextual.
Based on the above, the Court concludes that there is sufficient evidence in
the record from which a reasonable trier of fact could conclude that Ecolab's stated
reasons for replacing Alwood as district manager were in fact pretextual.
Accordingly, summary judgment on Alwood's retaliation claim is not appropriate.

C.

Wrongful Discharge

Finally, respecting Alwood's claim for wrongful discharge based on lack of
good cause, Ecolab argues that it properly terminated Alwood's employment
21

pursuant to its non-discriminatory policy after Alwood failed to secure a new
position. (Doc. 33 at 16). Ecolab argues that it had a "legitimate business reason"
in terminating the employment of someone no longer interested in working for the
company. (Id.)
Montana's Wrongful Discharge from Employment Act states:
(1) A discharge is wrongful only if:
(a) it was in retaliation for the employee's refusal to violate public policy or
for reporting a violation of public policy;
(b) the discharge was not for good cause and the employee had completed
the employer's probationary period of employment; or
(c) the employer violated the express provisions of its own written personnel
policy.
Mont. Code Ann.§ 39-2-904. Alwood raises claims under subsections (b) and (c).
Since the statute is disjunctive, Alwood need only succeed on one of his claims for
his discharge to be wrongful under the WDEA.

1.

Good Cause

An employee is wrongfully discharged if"the discharge was not for good
cause and the employee had completed the employer's probationary period of
employment." Id. "Good cause" is defined as "reasonable job-related grounds for
dismissal" based on either: (I) "failure to satisfactorily perform job duties"; (2)
"disruption of the employer's operation"; or some other (3) "legitimate business
reason." Mont. Code Ann. § 39-2-903(5).
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A "legitimate business reason" as one that "is neither false, whimsical,
arbitrary or capricious, and it must have some logical relationship to the needs of
the business." Buck v. Billings Montana Chevrolet, Inc., 811 P.2d 537, 540 (Mont.
1991 ). While an employer has the important right to exercise discretion over who

it will keep in its employ, McConkey v. Flathead Electric Co-op., 125 P.3d 1121,
1126 (Mont. 2005), "[ o]f equal importance [], is the legitimate interests of the
employee to secure employment." Buck, 811 P.2d at 540.
In order to "defeat a motion for summary judgment on the issue of good
cause, the employee may either prove that the given reason for the discharge is not
'good cause' in and of itself, or that the given reason 'is a pretext and not the
honest reason for the discharge.'" Becker v. Rosebud Operating Services, Inc., 191
P.3d 435, 441 (Mont. 2008). The employee must present "evidence, and not mere
speculation or denial," to create an issue of fact. Kestell v. Heritage Health Care

Corp., 858 P.2d 3, 7 (Mont. 1993).
Here, Ecolab allegedly discharged Alwood because he failed to identify a
new position within 56 days of being cleared to return to work. Ecolab argues that
because it could not be expected to continue employing Alwood when he remained
uninterested in any open positions, it had a "legitimate business reason" to
discharge him. (Doc. 23 at 31 ). On its face, the reason given by Ecolab for
terminating Alwood's employment qualifies as good cause. The undisputed
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evidence demonstrates that Ecolab's "standard procedure" is to allow thirty days
for an employee in "similar circumstances" to identify and apply for open
positions. (Doc. 31-24). In the event that the employee fails to identify and obtain
a position, he will be severed from the company. (Id.)
While the reason given by Ecolab for Al wood's discharge is in and of itself
good cause, Alwood's claim may survive summary judgment ifhe can show there
is a genuine issue of material fact as to whether that reason was simply a pretext
and not the honest reason for his discharge. See Becker, 191 P.3d at 441.

2.

Pretext

Alwood asserts that the manner and timing of his termination evidences that
Ecolab's reason for discharging his employment is pretextual. Alwood points out
that even though he was cleared to work on December 16, 2013, he did not receive
any information regarding his position in the company, to whom he should report,
or even how he would be paid, until January 2, 2014, and that was only after
significant urging on his part. Notably, the website Bjorkman provided to him on
January 2, 2014, to search for jobs did not allow him to search for positions
equivalent to the one he previously held, district manager. She provided those
positions to him on January 13, 2014, 28 days after he had been cleared to work,
and only after Alwood pointed the omission out to her. Alwood also pointed out
that Bjorkman never consulted with Salstrand, who was in the best position to
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know what positions may be coming available in the Rocky Mountain District. In
fact, just after Alwood was terminated, two positions became available.
This Court finds the evidence persuasive. A trier of fact could reasonably
find that Ecolab's explanation that Alwood was terminated because he did not find
a position in the company within its standard 30 day window is pretextual based on
the fact that Ecolab failed to communicate with Alwood for the first half of the
standard 30 days, and it failed to provide him with job opportunities suitable for his
position for 28 days. Based on this timeline, by terminating his employment 56
days after he was cleared to work, Ecolab essentially provided Alwood with 28
days to find a position. Further, there is sufficient evidence for a jury to determine
that Ecolab was willing to extend the standard 30 day timeline for its own failure to
timely assist Alwood in finding a position, but when two suitable positions for
Alwood were on the horizon, Ecolab ended the extension and terminated Alwood
based on its "standard procedure."
Similarly, a jury could find Ecolab' s assertion that it terminated Al wood
because he did not want to work for the company pretextual. Alwood was a
district manager for 15 years before Ecolab replaced him. No comparable job was
available in the area and he would have been required to pay his own relocation
expenses many states away for a comparable position. Despite that, Alwood
applied for a job he thought he could do out of Montana and did not get it.
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Whether these actions and explanations suggest that Alwood wanted to remain at
Ecolab are for the trier of fact.
IV.

Conclusion

For the foregoing reasons, IT IS HEREBY ORDERED that Ecolab's motion
for summary judgment is GRANTED as to Alwood's age discrimination claim and
DENIED as to all other claims.

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DATED this //day of April 2016.

~/1-tU~

SlJSANP.WATTERS
United States District Judge

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