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Borges v. Missoula County Sheriff's Office

Supreme Court of Montana

January 30, 2018

MICHAEL PETER BORGES, Plaintiff and Appellant,

          Submitted on Briefs: November 29, 2017

         District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DV-15-949 Honorable Leslie Halligan, Presiding Judge.

          For Appellant: James P. O'Brien, O'Brien Law Office P.C., Missoula, Montana

          For Appellee: Kirsten Pabst, Missoula County Attorney, Matt Jennings, Deputy Missoula County Attorney, Missoula, Montana


          Beth Baker, Justice.

         ¶1 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.

         ¶2 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.


         ¶3 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 other responsibilities.

         ¶4 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.

         ¶5 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."

         ¶6 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."

         ¶7 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."[1] Borges responded simply with the word "thanks, " but did not pursue a meeting with Rodrick.

         ¶8 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 distribution."

         ¶9 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.

         ¶10 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.

         ¶12 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 ...

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