Submitted on Briefs: November 29, 2017
Court of the Fourth Judicial District, In and For the County
of Missoula, Cause No. DV-15-949 Honorable Leslie Halligan,
Appellant: James P. O'Brien, O'Brien Law Office P.C.,
Appellee: Kirsten Pabst, Missoula County Attorney, Matt
Jennings, Deputy Missoula County Attorney, Missoula, Montana
Michael Borges worked as a juvenile detention officer at the
Missoula County Detention Facility from 2006 to 2015. He
informed his supervisors and human resources personnel in May
2014 that he had been diagnosed with Autism Spectrum Disorder
and experienced debilitating hypersensitivity to fragrances.
Borges filed a complaint with the Human Rights Bureau (HRB)
on October 31, 2014, alleging that the detention facility and
the Missoula County Sheriff's Office (collectively, the
"County") had illegally discriminated against him
based on his disability. The HRB's investigation found no
reasonable cause to believe that the County had discriminated
against Borges. The Fourth Judicial District Court later
awarded summary judgment to the County on Borges's
discrimination complaint. Borges appeals. We affirm.
We address the following issues:
1. Whether the District Court erred in declining to
consider facts that arose after Borges filed his October 31,
2014 HRB complaint;
2. Whether the District Court erred in concluding that no
genuine issue of material fact existed as to the County's
alleged failure to engage in an interactive dialogue or to
provide a reasonable accommodation.
AND FACTUAL BACKGROUND
Borges began working at the detention facility in November
2006. He regularly received good performance reviews, was
promoted to a mid-level supervisory position in 2010, and was
named the 2010 Missoula County Outstanding Employee of the
Year. Borges's duties included supervising staff and
overseeing juvenile offenders brought to the facility, among
Borges was diagnosed in April 2014 with Autism Spectrum
Disorder. His condition manifests with an extreme sensitivity
to fragrances such as perfumes, colognes, and scented items.
When he encounters strong fragrances, he experiences physical
pain, headaches, and anxiety, among other symptoms.
Borges's sensitivity to fragrances became increasingly
severe throughout 2014 and 2015.
After Borges told his immediate supervisor, Sergeant Gary
Evans, of his diagnosis, Evans scheduled a meeting for May
19, 2014, with County human resources personnel Carol Bishop
and Patty Baumgart, the human resources director. At the
meeting, Borges informed Baumgart and Bishop of his diagnosis
and hypersensitivity to fragrances. Baumgart explained that
the County wanted to begin a dialogue with Borges about
whether his diagnosis had any implications for his work.
Baumgart told Borges that the County would explore the
possibility of implementing a "fragrance-free"
policy at the detention facility. The detention facility had
a written policy at the time that stated, "fragrances,
if worn, should be moderate."
After this meeting, Bishop worked with Borges to prepare an
Americans with Disabilities Act (ADA) reasonable
accommodation request. Borges's clinician completed an
ADA Release of Information form on June 6, 2014. The
clinician stated on the form, "an accommodation for a
fragrance-free environment would be important, given Mr.
Borges's sensory sensitivities. Other individualized
accommodations may be needed but should be determined based
on a discussion with Mr. Borges."
On June 17, 2014, Baumgart met with Evans and his
supervisors, Commander Jason Kowalski and Assistant Commander
Barbara Rodrick, to discuss the possibility of implementing a
new fragrance policy at the detention facility. Baumgart
suggested that the detention facility pursue a
"fragrance-free" policy, and Rodrick agreed to
research possible language for such a policy. The next day,
Rodrick attempted to call Borges but was unable to reach him.
She sent Borges an email stating, "If you still want to
meet, I am here next week." Borges responded simply with
the word "thanks, " but did not pursue a meeting
In a June 24, 2014 email conversation between Borges and
Baumgart, Borges stated, "I need to drop out of this
accusative/investigative stage for a while, provided it
doesn't grow worse." Borges also stated that he
wanted to meet with Baumgart but would be unavailable to do
so until September, due to his assignment to night shifts.
Baumgart responded, "I will be glad to meet with you at
any point that you wish." She also informed Borges that
Kowalski and Evans "agreed to look at the fragrance free
policy" and that she would "be proposing some
version of that same policy for county wide
Throughout the summer and into the fall of 2014, Borges
informed the County of multiple incidents involving his
exposure to harsh fragrances while at work. Borges does not
dispute that the County responded to each situation by
investigating, by encouraging him to report, and by acting to
protect Borges from the offensive smells.
The County adopted an amended fragrance policy on October 8,
2014. The amended policy stated, "Perfumes or Colognes
are not allowed due to client and co-worker allergies."
Borges had no direct input in the language of this policy.
Bishop arranged a meeting for October 22 with Borges and his
supervisors to discuss the policy. Borges expressed
reluctance to attend the meeting and asked to reschedule.
Bishop assured him that the purpose of the meeting was simply
"to continue the interactive dialogue about
accommodation in your work" and urged him to attend.
Borges attended the meeting. ¶11 At the meeting, Borges
stated that the "team"-which included his
supervisors and human resources personnel-had done an
excellent job working with him on the fragrance policy. But
he expressed concerns that the County was not adequately
enforcing the policy and that the policy itself was
inadequate because it banned only perfumes and colognes, as
opposed to all fragrances. The County staff encouraged Borges
to excuse himself, when possible, from situations in which he
encountered offensive smells and to use his supervisory
authority to help enforce the policy when he observed
non-compliance. Borges asserts that the County refused to
reconsider the language of the policy.
Borges filed a complaint with the HRB on October 31, 2014,
claiming that the County discriminated against him by failing
to provide a reasonable accommodation, subjected him to a
hostile work environment, and retaliated against him by
denying him a promotion, in violation of the Montana Human
Rights Act ("MHRA" or "Act") and the ...