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Alwood v. Ecolab, Inc.

United States District Court, D. Montana, Billings Division

March 27, 2017

ECOLAB, INC., Defendant.


          SUSAN P. WATTERS, United States District Judge

         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 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:


         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. §§ 39-2-901, etseq. (Compl. ¶¶ 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).

         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. 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.).

         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") ¶ 2, Doc. 81).

         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 ¶ 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).

         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 ¶¶ 1, 4, Doc. 81).

         III. Alwood's Employment with Ecolab

         18. 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.).

         19. In 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).

         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 TMs throughout Montana so that Ecolab could achieve sales and customer satisfaction goals. (Agreed Fact at ¶ 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 to Alwood. (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. Alwood 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).

         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 of 2013, 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 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).

         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 Alwood 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 199:10- 200:22, 215:3-5).

         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. 103-1 at 18).

         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).

         40. 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).

         V. Ahvood'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 -887:10; 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).

         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 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 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).

         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. 339:6-340:1).

         48. 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).

         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 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).

         50. 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 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 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.).

         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 Short-Term 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. 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)

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

         58. 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 ...

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