Provance v. Gallatin County

Filing 37

MEMORANDUM AND ORDER. 1. The Complaint is DISMISSED. 2. The Clerk is directed to enter judgment accordingly. Signed by Judge Sam E Haddon on 4/17/2015. (ELL, )

IN THE UNITED STATES DISTRICT COURT

FILED
APR 172015

FOR THE DISTRICT OF MONTANA
BUTTE DIVISION

Clerk, U,S DistrICt Court

District Of Montana

Helena

LEE WALTER PROVANCE,
Plaintiff,
No. CV-13-S1-BU-SEH
vs.
GALLATIN COUNTY, a political
Subdivision of the State of Montana,

MEMORANDUM
AND ORDER

Defendant.

INTRODUCTION
This case was tried to the Court without a jury on ApriI6-S, 2015. Plaintiff
Lee Walter Provance ("Provance") was represented by William B. Hanson, Esq.
Defendant Gallatin County, a political Subdivision of the State ofMontana
("County") was represented by Calvin J. Stacey, Esq. Oral and deposition
testimony and documentary evidence were introduced.

AGREED FACTS
The following facts were agreed upon and incorporated into the Final
Pretrial Order and are accepted by the Court as established:!

l

Doc. 27 at 2-5.

I.

At all times relevant, Provance and the County were residents and/or

located within the geographical boundaries of the Butte Division of the United
States District Court for the District of Montana.
2.

Provance received notice of his right to institute a civil action against

Gallatin County from the United States Department of Justice within 90 days
before filing his Complaint.
3.

At all relevant times, Provance was a resident of Gallatin County,

Montana, and a citizen ofthe State of Montana.
4.

At all relevant times, the County was a political subdivision of the

State of Montana.
5.

At all relevant times, the County was governed by a board of three

county conunissioners, elected by the residents of Gallatin County.
6.

Provance was hired as the Road and Bridge Superintendent for the

County on March 6,2000.
7.

On November 29,2011, Provance signed a form titled "Gallatin

County Health BenefitslFlexible Spending Accounts Election Form," with an
effective date of January 1, 2012, pursuant to which he elected to participate in the
County's "High Plan with Discount Pharmacy without Blood Screen," with a
monthly premium for the same coverage except "with Blood Screen" of $612.

8.

On Friday, August 17,2012, Provance had outpatient surgery to his

right shoulder at Bozeman Deaconess Hospital by Dr. Peter Kelleher, M.D., from
Alpine Orthopedics and Sports Medicine ("Alpine") of Bozeman, Montana.
9.

Provance returned to work on Monday, August 20, 2012, following

his surgery on August 17,2012.
10.

Provance worked partial days from August 20,2012, through and

including September 11, 2012, without being absent for any full days.
11.

Provance requested the County to conduct an investigation into the

legality of the inquiry made of Provance's physician's physician assistant.
12.

On September 12,2012, a meeting was held with Provance and Earl

Mathers ("Mathers"), and two county commissioners, Joe Skinner ("Skinner") and
Steve White. The third commissioner, William A. Murdock, was out of the
country.
13.

A three-workday suspension without pay which was administered to

Provance resulted in Provance not being paid wages in the amount of$I,032.
14.

A letter was sent by certified and regular mail dated September 14,

2012, to Provance by the County concerning his employment
15.

By letter dated September 25,2012, from Mathers to Provance,

Provance's employment with the County was discussed.
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16.

On September 26,2012, Provance and Mathers signed a "RETURN­

TO-WORK AGREEMENT."
17.

By memorandum dated October 23, 2012, Provance notified Mathers,

Cynde Hertzog ("Hertzog"), and the Gallatin County Commissioners that he
intended to retire on December 17, 2012.
18.

By letter dated October 26,2012, from Mathers to Provance, Mathers

said, among other things, "At this time I accept your retirement effective
immediately. "
19.

Provance's salary as of October 26, 2012, was $89,814 per year,

which was the equivalent 0[$1,727 per week or $7,484 per month.
From the record, the Court makes the following additional:
FINDINGS OF FACT

20.

Provance received annual performance appraisals. Beginning March

2000 through March 2006, the performance appraisals were signed by the Gallatin
County Board of Commissioners ("Commissioners"), a representative of Gallatin
County's Human Resources Department, and Provance.
21.

Earl Mathers ("Mathers") was hired as the Gallatin County

Administrator in August 2006.

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22.

On September 15, 2006, the Commissioners issued a written

memorandum to all Gallatin County department heads announcing that from that
point forward, twelve departments, including Road and Bridge, would be under
Mathers' direct supervision. The memorandum was initialed by each ofthe
Commissioners. Provance received the memorandum.
23.

Mathers conducted performance appraisals for Provance beginning in

March 2007 through February 2012. Mathers wrote the performance evaluations,
met with Provance, and signed the performance appraisals. The Commissioners
did not participate in the performance appraisals.
24.

In response to Provance's performance appraisal on February 27,

2009, Provance wrote he appreciated working for and with Mathers.
25.

During trial, Provance acknowledged Mathers as "my boss," but later

retracted the statement.
26.

The evidence clearly establishes that Mathers was Provance's

supervisor, and that Provance knew it or was responsible for knowing it.
27.

In 2011, the County gave notice to its employees that it would change

its health insurance plan for employees. Among the changes was a voluntary
Wellness Program. Participation in the Wellness Program included voluntary
blood screening. If an insured party chose to participate in the Wellness Program,
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a $50.00 monthly premium would be waived. Blood test results were sent to the
employee and any physician to whom the employee directed the results to be sent.
28.

Provance attended a meeting sponsored by the County on July 26,

2011, at the Gallatin County Rest Home. At the meeting, representatives ofthe

County's insurance provider, Allegiance, provided information on changes to the
insurance plan. Provance expressed his displeasure with the Wellness Program
and stated it violated his rights. The manner in which Provance expressed himself
at the meeting made others present feel uncomfortable.
29.

Provance furnished Hertzog, Gallatin County Human Resources

Director, a copy of a United States Equal Employment Opportunity Commission
letter discussing well ness programs in December 2011. Provance contended that
Gallatin County's Wellness Program was illegal. 2
30.

Provance was notified in his 2012 performance evaluation by Mathers

that he was concerned by the method in which Provance objected to the Wellness
Program at the Gallatin County Rest Home. Provance responded bye-mail
explaining his opposition to the Wellness Program.
31.

Provance believed the blood draw results would not remain

confidential. His belief was unfounded.

2

Tab 107, Ex. GC 006369 -72.
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32.

On August 17,2012, Mathers e-mailed Hertzog indicating that

Hertzog should inform Provance that he should not return to work until he
obtained a doctor's release. On August 20, 2012, Hertzog requested Provance
provide her department with work limitations from his doctor, if any.
33.

Provance informed Hertzog that he had no work restrictions other

than the instruction to not use his right arm which was held in a sling. He also told
Hertzog he was in pain as a result of the surgery, but that he was able to work.
Hertzog witnessed Provance having difficulty parking his vehicle with only one

arm.
34.

Hertzog asked Susan Shane ("Shane"), an employee of Gallatin

County Human Resources Department, to contact Alpine to see if they would
provide a work release for Provance to determine if he had any work restrictions.
Shane fIrst contacted Alpine on August 20, 2012, but did not hear back. She again
contacted Alpine on September 10,2012, and requested a work release from a
receptionist.
35.

On September 11, 2012, a Medical Status Form signed by Josh

Spuller, an Alpine physician assistant, was faxed to the Gallatin County Human
Resources Department. The medical status form, among other things, indicated
that Provance was released to "Modified Duty." Restrictions to Provance's work
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included limitations on use of his right hand, restrictions on climbing and lifting
weight, restrictions from bending, kneeling, and squatting, and required Provance
·
to use a sI mg.'~

36.

Shane drafted a Modified Work ProgramJLight Duty Work

Agreement and attached the Medical Status Form sent by Alpine. Shane sent the
documents to Hertzog. Hertzog sent the form to Mathers to present to Provance.

37.

On September 11,2012, Mathers called Provance and notified him of

the Modified Work Program document and the need to meet and discuss it.
Provance directed profanities at Mathers during the call for invading his personal
life.
38.

Provance drove to Commissioner Skinner's office. He yelled and

cursed at Skinner about Mathers' conduct, and demanded Mathers be fired or he
(Provance) would sue the County.
39.

After leaving Skinner's office, Provance went to Mathers' office. At

that meeting Provance again swore at Mathers for invading his personal life.
40.

Mathers contacted Provance via e-mail on September 12,2012, and

instructed him to meet with himself and the Commissioners on the same day to
discuss his conduct on September 11,2012. Provance responded that he would

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attend to discuss Mathers' conduct and his potential lawsuit:
41.

Provance met with Mathers and Commissioners Skinner and White

on September 12, 2012. Wendy Wiedenmeyer ("Wiedenmeyer") was present in
her office next to Mathers' office where the meeting took place. Provance walked
into Wiedennleyer's office and asked "where is the rotten son-of-a-bitch?"
Provance then met with Commissioners Skinner and White and Mathers and again
swore at them and threatened to sue. He made personal attacks upon those present
which were meant to offend.
42.

At the meeting on September 12, 2012, Mathers and Commissioners

Skinners and White presented Provance with a letter noticing him that he would be
suspended for three days without pay for his outbursts on September 11, 2012.
The letter stated that Provance had violated several personnel policies. s
43.

Provance brought to the meeting on September 12, 2012, a Medical

Status Form dated September 12,2012, which was different from the medical
Status form sent by Alpine to Gallatin County Human Resources the previous day.
The new form showed no restrictions whatsoever/ although the restrictions listed

4

Tab 102, Ex. GC 004961.

, Tab 34, Ex. PLTF_0170-72.

6

Tab 31, Ex. PLTF 2003.

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on the earlier form from Alpine had not been lifted by Dr. Kelleher.
44.

Provance expected disciplinary action for his behavior. He

acknowledged that he knew his behavior violated personnel policy.
45.

Provance continued to work through his three-day suspension by

having contractors come to his home. County officials were unaware of
Provance's continued work and did not approve of it.
46.

On September 12, 2012, Provance e-mailed Hertzog appealing his

suspension without pay. He made complaints that Mathers was not his supervisor,
that his privacy rights had been violated, that Mathers' actions were due to
Provance's views on employee medical privacy, and that Mathers hoped to elicit
an angry response from Provance which would cause him to lose his job.?
47.

Mathers, White, and Skinner had a letter drafted and sent to Provance

on September 14,2012. The letter provided Provance with notice of possible
termination for his insubordinate, threatening, and unprofessional behavior on
September 11 and 12,2012. The letter gave Provance the right to respond to the
proposed discharge within five days.s

7

Tab. 37, Ex. GC 005936-39.

STab 36, Ex. PLTF _0173-74.

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48.

Provance received the notice of possible termination letter on

September 18,2012. He asked Hertzog for an extension to respond. Hertzog
agreed to extend the period to respond to September 24, 2012.9
49.

Provance emailed Hertzog on September 21, 2012, notifying her that

he did not wish to pursue any action, grievance, or complaint against the County,
Mathers, or the Commissioners.1O
50.

Provance called Mathers on September 21, 2012, to set up a meeting

at Mathers' office. At the meeting on the same day, Provance apologized to
Mathers. Mathers brought up the possibility of reinstating Provance.
51.

Mathers met with Skinner and White and they agreed to let Provance

continue his job. They scheduled a meeting with Provance on September 26,
2012, to discuss his return to work.
52.

Immediately prior to meeting on September 26, 2012, with Mathers,

Hertzog, Skinner, and White, Provance went to Hertzog's office to review a
Return-to-Work Agreement. The Return-to-Work Agreement conditioned
Provance's return upon his agreement that he would undergo mental and physical
evaluations. Provance reviewed the terms of the Return-to-Work Agreement and

9

Tab 38, Ex. GC 007052.

10

Tab 110, Ex. GC 007055.

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signed it. J J
53.

Provance later met with Mathers, Hertzog, Skinner, and White and

apologized. Provance was reinstated. The September 14,2012, termination letter
was withdrawn.
54.

Provance was deceptive and misleading in his apologies. He

apologized as a ruse in an effort to be allowed to return to work.
55.

Provance returned to work. His work perfornlance appeared to return

to normal. No incidents or complaints occurred. He never expressed concern with
his Return-to-Work Agreement.
56.

A mental health evaluation for Provance was arranged with a

psychiatrist in Helena, Montana. Provance was notified of the appointment.
Provance expressed fear of driving to another town with his shoulder issue, but
Hertzog assured him the County would get him there.
57.

On October 23,2012, Provance sent a memorandum to the

Commissioners, Mathers, and Hertzog, of his notice of his intent to take early
retirement effective December 17, 2012, that he planned to take his accrued sick
and vacation leave until the December 17,2012, retirement date, and that he
would do so to avoid the psychological testing and to recover from his upcoming

11

Tab 51, PLTF_OI94-95.
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surgery on his left shoulder. He did not raise any issues concerning his job
conditions. 12
58.

Mathers, on behalf ofthe County, sent a letter on October 26,2012,

to Provance immediately accepting his retirement. 13 Provance was paid for his
remaining leave and received several thousand dollars more than he would have
received had the County processed his retirement in December 2012.
59.

None of Provance's beliefs that Mathers and Hertzog conspired

together to force Provance to be fired, or that they plotted to make him angry
because they knew it would result in an inappropriate outburst that would cause
him to be fired, in part for his opposition to the Wellness Program, are supported
by any competent evidence.
From the foregoing, the Court enters its:
CONCLUSIONS OF LAW

1.

The Court has jurisdiction over the parties. '4 Venue is appropriate. IS

2.

Under Montana law, a county road superintendent serves at the

12

Tab 59, Ex. PLTF_0207.

13

Tab 62, Ex. PLTF_0213.

t4

See 28 U.S.c. § 1331.

15

See L.R. 1.2(cX2) and 3.2(b).
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pleasure and under the direction and control of the board of county
commissioners.16 Nothing in Montana law limits county commissioners from
delegating authority. County commissioners may exercise authority through
agents or officers acting under their authority Y
3.

The Commissioners lawfully appointed Mathers as supervisor of

Provance and his position of Road and Bridge Superintendent.
4.

It is a violation oflaw to retaliate against an individual because they

opposed any act or practice made unlawful under the Americans with Disabilities
Act ("ADA") or because "such individual made a charge" under the ADA. IS
Retaliation against an individual who opposed any act or practice based upon a
"good faith, reasonable belief that the conduct was unlawful" is similarly
prohibited by the ADA. 19
5.

An entity covered by the ADA "may conduct voluntary medical

examinations ... which are part of an employee health program ... to employees
at [a] work site.,,20 Additionally, an entity covered by the ADA "may make
16

See Mont. Code Ann. § 7-14-2301.

'7

See Mont. Code Ann. § 7-1-2104.

18

42 U.S.C. § 12203(a).

" Parrish v. Sollecito, 258 F. Supp. 2d 264, 267 (S.D.N.Y. 2003).

20

42 U.S.C. § 12112(d)(4)(B).

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inquiries into the ability of an employee to perform job-related functions."zl An
entity covered by the ADA may require medical examination if the examination
"is shown to be job-related and consistent with business necessity.,,22
6.

'''Under the constructive discharge doctrine, an employee's

reasonable decision to resign because of unendurable working conditions is
assimilated to a formal discharge for remedial purposes. The inquiry is objective:
Did working conditions become so intolerable that a reasonable person in the
employee's position would have felt compelled to resign?,,,23
7.

Provance engaged in good faith opposition to the Wellness Program

because he believed it was a violation of the ADA. This was protected activity.
8.

No evidence has been provided to show the blood draw in the

County's Wellness Program was anything but voluntary. Provance's beliefs about
lack of validity of the program were unfounded.
9.

The County was not required to seek or obtain Provance's approval to

ask his doctor for work restrictions. The statute 24 permitting employers to make

21Id
2242 U.S.C. § 12112(d)(4)(A).
23 Poland v. ChertofJ, 494 F .3d 1174, 1184 (9th Cir. 2007) (quoting Penn State Police v.
Sunders, 542 U.S. 129, 141 (2004».
14

See 42 U.S.c. § 12112(d)(4)(B).
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inquiries into an employee's ability to perform job-related functions is plain on its
face. The County had ample justification for taking that step. Provance stated he
could drive, but admitted to having difficulties and was observed having difficulty
driving. Good business sense mandated a query to Alpine of Provance's
limitations, even when he stated he was able to work. No invasion of Provance's
privacy or violation of statute occurred,
10,

Provance's conduct at the meetings of September 11 and 12, 2012,

was excessive in its impropriety. His behavior lacked justification or
reasonableness. Provance knew his behavior was wrong and in contravention of
policy and knew it would result in disciplinary action. His conduct was not
justified, explained, or excused by his anger, the inquiry into his working
limitations, or by his beliefs in the motives of others. The three-day suspension
was justified and reasonable. Consideration of discharge was similarly warranted.
Good cause for discharge was shown, A failure to act in response to Provance's
conduct would have been a dereliction of duty by his supervisors.
1L

Provance's belief in a conspiracy against him by county officials is

unsupported by the record. The evidence supports no basis for a reasonable
conclusion of conspiracy. No inappropriate conduct by county officials was
proven.
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12.

Provance's actions were deceptive. He continued to work during his

three-day suspension. He did not genuinely believe what he said in his apologies.
His testimony lacked credibility and the lack of credibility cannot be ignored by
the Court.
13.

Provance withdrew his complaint without equivocation. Together

with his apologies, Provance's actions precipitated discussion of and resulted in a
negotiated and agreed upon Return-to-Work Agreement. The evidence supports
no basis to justify a claim that Provance did not act as a competent human being in
negotiating and signing the agreement. He gave up his claims and agreed to return
to work under specific conditions he knew and understood. Given Provance's
conduct on September 11 and 12,2012, the agreement was reasonable. The deal
struck was an accord and satisfaction. It resolved both sides' complaints and was
valid and binding upon the parties.
14.

County officials were justified in the conclusion that the matter was

settled. No evidence was presented that the period from Provance's return to
work to his retirement was anything other than business as usual. Provance gave
no indication there were any problems.
15.

Provance's claim related to driving to Helena was inconsistent with

his claim of being to drive everywhere for his job. The two statements are
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inconsistent and irreconcilable. Moreover, Hertzog had infonned him that he
would be driven to Helena if necessary.
16.

No credible evidence exists that any retaliation by the County or its

representatives for any reason whatsoever took place. No causal connection
between any protected act by Provance and the disciplinary actions the County
took through its agents was proven.
17.

Provance voluntarily returned to his job. He then voluntarily retired.

The situation which led to his retirement was precipitated by his own actions. He
was not constructively discharged. He was not discharged at all.
18.

Provance's claims all fail for lack of proof and lack of support in law.

The County did not violate any ofProvance's rights under the ADA or otherwise.
The County is entitled to judgment dismissing all claims.
ORDERED:
1.

The Complainf5 is DISMISSED.

2.

The Clerk is directed to enter judgment accordingly.

~~~or1~
AME.HADDON
United States District Court

"Doc. 1.
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