Submitted on Briefs: November 14, 2018
FROM: District Court of the Twenty-Second Judicial District,
In and For the County of Stillwater, Cause No. DV 16-059
Honorable Blair Jones, Presiding Judge.
Appellant: Philip McGrady, McGrady Law, Whitefish, Montana
Veronica Alyn Procter, Procter Law, PLLC, Billings, Montana
Appellee: Edward Butler, Butler Law, LLC, Colorado Springs,
Plaintiff Ronis Bollinger (Bollinger) appeals from the order
of the Twenty-Second Judicial District Court, Stillwater
County, affirming the Montana Department of Labor and
Industry's Human Rights Bureau's (HRB) Hearing
Officer Decision and Notice of Issuance of Administrative
Decision (Decision), which concluded Bollinger was properly
terminated from her employment with the Billings Clinic (the
Clinic). We affirm.
We restate the issues on appeal as:
I. Whether the District Court erred in upholding the
Human Rights Bureau's decision that Bollinger was
properly terminated by the Clinic.
II. Whether the District Court erred in upholding the
Human Rights Bureau's denial of Bollinger's motion to
compel Clinic production of certain emails.
III. Whether the District Court erred in awarding costs
to the Clinic.
AND PROCEDURAL BACKGROUND
Bollinger is a registered nurse with over 40 years of
experience, more than 15 years of which were at the Clinic.
In 1998, 2002, and 2012, Bollinger signed then-current
versions of the Clinic's Confidentiality Policy and
Agreement, agreeing she would guard and treat as confidential
all information pertaining to patients, she would access
patient information only on a need-to-know-for-job-functions
basis, and the Clinic could discipline or discharge her if
she did not comply with this policy.
The first decade of Bollinger's employment at the Clinic
went smoothly. From 1998 until 2008, Bollinger had one
write-up, but no other disciplinary action. In 2008,
Bollinger's coworker C.K. experienced a privacy breach
when another employee logged into the Clinic's patient
database to look at C.K.'s personal medical records
without a need-to-know-for-job-function basis. When the
Clinic initially learned about the possible patient privacy
breach, the Director of Nursing attended a meeting, which
Bollinger also attended, to advise employees there may have
been a privacy breach, and to caution employees not to
discuss the matter amongst themselves. During its
investigation of the possible privacy breach, Human Resources
(HR) interviewed Bollinger about the matter, and Bollinger
asserts she became an unwilling witness against the
Clinic. However, the Clinic concluded Bollinger
had no relevant information about the matter. After the
interview, HR again advised Bollinger not to discuss the
matter with anyone other than her immediate supervisor.
In January 2009, the Clinic learned that Bollinger had spoken
to a coworker about the C.K. matter. HR again advised
Bollinger not to discuss it. Two days later, the Clinic
learned that Bollinger had again discussed the C.K. matter,
this time over the telephone. HR met with Bollinger again.
Bollinger admitted discussing the C.K. matter, even though HR
had repeatedly advised her not to do so. Bollinger believes
HR harassed and bullied her during these encounters.
The Clinic took Bollinger's failure to follow direct
orders seriously, placing her on administrative leave and
advising her it would place a disciplinary letter in her
file. Bollinger then filed a retaliation complaint with the
United States Department of Health and Human Services Office
of Civil Rights (OCR), asserting the Clinic retaliated
against her by harassing her, placing her on administrative
leave, and issuing her a disciplinary letter because of her
participation as a witness in the C.K. matter. 
Prior to the C.K. matter, the Clinic had usually scheduled
Bollinger's work shifts so that she received two
consecutive days off each week. After this conflict arose,
the Clinic increasingly scheduled her with non-consecutive
days off. Bollinger, who had become increasingly distrustful
of the Clinic, believed the scheduling change was
intentional. Because she had relied on the two consecutive
days off to address health concerns, she requested an
accommodation to her work schedule to be given Monday and
Tuesday off on a regular basis. After providing a
doctor's verification of her need for this accommodation,
the Clinic agreed to accommodate her request to have two
consecutive days off each week. The Clinic indicated the two
consecutive days off would usually be Monday and Tuesday, but
would occasionally be other days. Bollinger agreed, and the
Clinic drafted a memorandum to that effect. Bollinger
believed the Clinic failed to honor this agreement and did so
deliberately out of hostility toward her because of the C.K.
matter and her accommodation request.
On October 31, 2012, Bollinger filed an administrative
complaint against the Clinic with the HRB, alleging
disability discrimination and failure to accommodate.
Thereafter, Bollinger became increasingly suspicious of her
superiors and believed they were plotting against her.
Because she believed her career was in jeopardy, she kept
track of any injustices she perceived in her scheduling.
On January 18, 2013, Bollinger was assigned what she believed
was a challenging day of multiple surgeries with a demanding
surgeon. Bollinger believed the nurse assigned to work with
her on this shift was inexperienced, making the day more
difficult. Bollinger did not have any lunch-break relief
assigned. She feared she would be unable to take a break as
she was worried about leaving the inexperienced nurse alone,
but she also had concerns about whether she herself could
safely work the shift without a break. She considered this a
patient safety concern.
Bollinger took the surgery schedule-which contained
confidential patient information-to her direct supervisor to
discuss the schedule and her concerns. Bollinger testified
her supervisor refused to discuss the schedule and referred
her to HR. Contrarily, Bollinger's supervisor denied
Bollinger tried to discuss the schedule, testifying she would
have discussed the schedule with Bollinger and she would
never have told Bollinger to take the schedule to HR due to
At the end of her shift, Bollinger retained a copy of the
surgery schedule instead of leaving it for shredding as
required by Clinic policy. Believing the conflict she
perceived between the Clinic and herself had escalated to the
point where patient safety might be in jeopardy, and to
support her pending HRB complaint, Bollinger gave the surgery
schedule to her attorney and retained a copy for herself.
Thereafter, her attorney provided a copy of the surgery
schedule with patient information redacted to the HRB
investigator. The HRB sent a copy of the redacted schedule it
received from Bollinger's attorney to the Clinic.
Bollinger continued to raise concerns about the surgery
schedule with Clinic management. Bollinger went to the
supervisor in charge of her scheduling, who Bollinger claims
told her to talk to Ellen James in HR. Contrary to the
Clinic's policies regarding patient privacy, Bollinger
took her copy of the January 18, 2013 surgery schedule to
James. Due to confidentiality issues, James refused to read
the surgery schedule and refused to discuss Bollinger's
concerns. Bollinger testified that she shredded her copy of
the schedule after that meeting.
James reported the incident to the Clinic management.
Prompted by James's report and the Clinic's receipt
of the redacted surgery schedule from the HRB, the Clinic