United States District Court, D. Montana, Billings Division
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
P. WATTERS, United States District Judge
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 Staipes 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:
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).
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. §§ 39-2-901,
etseq. (Compl. ¶¶ 45-79, Doc. 1-1).
November 16, 2015, Ecolab moved for summary judgment on
Alwood's claims. (Doc. 22).
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).
September 7, 2016, Alwood voluntarily dismissed his
wrongful discharge claim (Count IV of his Complaint). (Doc.
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).
Alwood'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.).
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).
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).
Ecolab is a Delaware Corporation with its principal place of
business in St. Paul, Minnesota. (Final Pre-Trial Order
§ IV ("Agreed Facts") ¶ 2, Doc. 81).
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).
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).
Institutional Division is divided into three regional sales
units: (1) Areas, (2) Districts, and (3) Territories. (Agreed
Facts at ¶ 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., ).
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).
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).
number of Districts in each Area remains relatively constant,
typically between 10 and 12 Districts per Area. (Id.
Alwood resided in Billings, Montana and worked for Ecolab.
(Agreed Facts ¶¶ 1, 4, Doc. 81).
Alwood's Employment with Ecolab
Ecolab hired Alwood on January 17, 1990. (Id. at
¶¶ 4, 7). Alwood remained an Ecolab employee until
February 6, 2014. Alwood worked in the Company's
Institutional Division for his whole career. (Id.).
1998, Ecolab promoted Alwood to the position of DM for the
Billings District. (Id. at ¶ 6). The Billings
District is a very large Ecolab sales region located in the
Rocky Mountain Area ("RMA"). (Trial Tr. 191:9-11;
564:4-18; 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; 581:11-18; Ex.
320, Doc. 103-4 at 294).
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 TMs throughout
Montana so that Ecolab could achieve sales and customer
satisfaction goals. (Agreed Fact at ¶ 8, Doc. 81).
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 to Alwood. (Trial Tr. at
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).
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).
Alwood described the DM job as "intense, "
"stressful, " and "a difficult position."
(Id. at 195:16-18, 195:19-20, 195:21-22,
Throughout Alwood's tenure as a DM, he reported to
multiple Area Managers ("AM"). (Id. at
Salstrand became Alwood's AM and direct supervisor in
2012. (Id. at 130:7-15). Salstrand was located in
Denver, Colorado. (Id.).
Alwood's Mental Health Issues
the spring of 2013, Alwood began suffering work-related
anxiety and depression. (Id. at 16:5-8; 134:3-7).
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).
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).
the Written Warning, Salstrand identified three areas where
Alwood 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
unprofessional, negative, rude, and insubordinate behavior
would not be tolerated. (Id. at 203:21-204:4).
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).
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
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;
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
Alwood on anti-depressant medications. (Id. at
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 199:10- 200:22, 215:3-5).
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
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. 103-1 at
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).
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).
Kietzman prepared a letter to Ecolab dated August 13, 2013,
recommending that Alwood 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).
Ahvood's Leave of Absence
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).
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 -887:10;
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).
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 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).
Alwood did not tell anyone in his chain-of-command, including
Salstrand, that he was taking leave. (Id. at
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).
August 15, 2013, the day Alwood's leave commenced,
Burgess wrote to him and provided him a copy of Ecolab's
Short-Term Disability policy. (Ex. 200, Doc. 103-3 at 21-23).
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.
Ecolab's policy also clarified that "an
individualized analysis will be reviewed for each
situation" and "[reemployment 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."
(Id.; Trial Tr. 340:9-24).
August 15, 2013, Burgess provided Alwood the disability
paperwork he needed to complete. (Id. at 234:7-17;
Ex. 316, Doc. 103-4 at 215-217). 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]f your 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).
During the time Kietzman treated Alwood, she completed the
required forms and Alwood sent them in to Ecolab.
(Id. at 72:11 -17). Kietzman did not send any forms
or correspondence to Ecolab directly. (Id. at
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 turn,
notified Salstrand via email that Alwood was out on leave.
(Id. at 623:9-:624:22; Ex. 4, 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. 103-1 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.
103-1 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.
103-2 at 2). The Toolkit further advises the supervisor to
"maintain contact with the employee as directed by the
HR generalise" (Id.).
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 Short-Term Disability leave before they seek
Long-Term Disability benefits. (Id. at
Salstrand e-mailed Alwood on August 15, 2013, wishing him a
speedy recovery. (Id. at 241:6-10; Ex. 101, Doc.
103-2 at 10). Alwood did not respond. (Id. at
629:17-630:1). Salstrand later called Alwood and left him a
voicemail. (Id. 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)
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 Alwood. (Id., at 81:4-13;
Ex. 125, Doc. 103-2 at 48).
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
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).
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 Kietzman did not
provide any more information to Ecolab during the month of
October 2013. (Mat 90:1-7).
Alwood sent Ecolab Kietzman's letter stating that Alwood
needed to take leave on August 13, 2013. (Id. at
139:8-11). By August 15, Burgess had contacted Alwood
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
Alwood would be on an indefinite leave of absence.
Id. at 889:10-16. No additional information was
provided by ...