Borges v. Missoula Cnty. Sheriff's Office , 390 Mont. 161 ( 2018 )

01/30/2018
DA 17-0355
Case Number: DA 17-0355
IN THE SUPREME COURT OF THE STATE OF MONTANA
2018 MT 14MICHAEL PETER BORGES,
Plaintiff and Appellant,
v.
MISSOULA COUNTY SHERIFF’S OFFICE
and MISSOULA COUNTY DETENTION FACILITY,
Defendants and Appellees.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DV-15-949
Honorable Leslie Halligan, Presiding Judge
COUNSEL OF RECORD:
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
Submitted on Briefs: November 29, 2017
Decided: January 30, 2018
Filed:
__________________________________________
Clerk
Justice Beth Baker delivered the Opinion of the Court.
¶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.
PROCEDURAL AND FACTUAL BACKGROUND
¶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.
2
¶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
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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
1
Borges argues for the first time on appeal that this email is inadmissible because the County
introduced it as an attachment to its Reply brief in support of summary judgment. He did not
object to its admission during the summary judgment proceedings. “[W]e generally do not
consider issues raised for the first time on appeal.” Draggin’ Y Cattle Co., Inc. v. Addink, 2016 MT
98, ¶ 15, 383 Mont. 243, 371 P.3d 970. We consider this email part of the record on appeal.
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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
ADA. The HRB initiated an investigation, which continued until June 2015.
¶13 Due to the increasing severity of Borges’s sensitivity to fragrances, the County
placed him on paid administrative leave on February 10, 2015. The HRB issued its Final
Investigative Report on June 15, 2015. It found no reasonable cause to believe that the
County discriminated against Borges.
5
¶14 Borges resigned his position on July 16, 2015, citing “ongoing medical disability
issues.” He filed a complaint in the District Court in September 2015, alleging that the
County “discriminated and retaliated against him, through a continuing course of conduct
when they refused to accommodate his disability throughout the summer and fall of 2014.”
In response to the County’s motion for summary judgment, Borges also claimed that the
County had failed to engage in an “interactive dialogue” regarding an individualized
accommodation.
¶15 Borges presented evidence to the District Court of the County’s alleged ongoing
discrimination that arose after he filed his HRB complaint on October 31, 2014. He had
not informed the HRB of any of this evidence during its investigation. The District Court
granted summary judgment to the County. It limited its consideration to evidence of the
County’s actions prior to October 31, 2014, reasoning that the MHRA permitted Borges to
pursue in District Court only those claims that he had asserted before the HRB. Because
Borges had not notified the HRB of the additional facts arising after October 31, 2014, the
District Court concluded that the MHRA barred it from considering those facts. The court
then concluded that no genuine issue of material fact existed whether the County had failed
to engage in an interactive dialogue with Borges, failed to offer him a reasonable
accommodation, or retaliated against him. Borges appeals.
STANDARDS OF REVIEW
¶16 We review a district court’s grant or denial of summary judgment de novo, applying
the criteria of M. R. Civ. P. 56. Pilgeram v. GreenPoint Mortg. Funding, Inc., 2013 MT
354, ¶ 9, 373 Mont. 1, 313 P.3d 839. Summary judgment may be granted only when there
6
is a complete absence of genuine issues of material fact and the moving party is entitled to
judgment as a matter of law. Saucier v. McDonald’s Rests. of Mont., Inc., 2008 MT
63, ¶ 33, 342 Mont. 29, 179 P.3d 481. In determining whether a genuine issue of material
fact exists, we view all evidence in the light most favorable to the non-moving party.
Saucier, ¶ 33. If the moving party satisfies its burden of showing the absence of a genuine
issue of material fact and entitlement to judgment as a matter of law, the burden then shifts
to the non-moving party to prove, by more than mere denial and speculation, that a genuine
issue does exist. Valley Bank v. Hughes, 2006 MT 285, ¶ 14, 334 Mont. 335, 147 P.3d
185. If no genuine issues of material fact exist, a court must determine whether the facts
entitle the moving party to judgment as a matter of law. Saucier, ¶ 34. We review
conclusions of law for correctness. Valley Bank, ¶ 15.
DISCUSSION
¶17 1. Whether the District Court erred in declining to consider facts that arose after
Borges filed his October 31, 2014 HRB complaint.
¶18 Borges argues that the District Court erred when it declined to consider any facts of
the County’s alleged discrimination that arose after he filed his HRB complaint. He asserts
that the County withheld these facts from the HRB during its investigation and that he
became aware of them only during discovery in the District Court proceedings. In his view,
these facts pertained directly to his original HRB claim of the County’s ongoing
discrimination and did not constitute distinct claims requiring separate filings. He argues
also that the court should have considered these facts under the “transaction rule” of
§ 26-1-103, MCA.
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¶19 The MHRA establishes the “exclusive remedy for acts constituting an alleged”
discriminatory practice under the Act’s provisions. Section 49-2-512(1), MCA. A claim
for relief “may not be entertained by a district court other than by the procedures specified”
in the Act. Section 49-2-512(1), MCA. The Act allows a person alleging discrimination
to file a complaint with the HRB within 180 days of the alleged unlawful conduct and
requires that the complaint state “the particulars of the alleged discriminatory practice.”
Section 49-2-501, MCA. A party claiming discrimination may not file a claim in district
court without first obtaining an adjudication of that claim by the HRB. See Griffith v. Butte
Sch. Dist. No. 1, 2010 MT 246, ¶ 35, 358 Mont. 193, 244 P.3d 321; Jones v. Mont. Univ.
Sys., 2007 MT 82, ¶ 39, 337 Mont. 1, 155 P.3d 1247 (holding that petitioners’ “failure to
exhaust available administrative remedies” under the MHRA precluded them “from
bringing a viable claim in district court”); Shields v. Helena Sch. Dist. No. 1, 284 Mont.
138, 149, 943 P.2d 999, 1005 (1997) (“No action may be filed in district court until the
procedures of the Montana Human Rights Commission have been exhausted.”).
¶20 Once a party files a complaint with the HRB, the HRB “shall informally investigate
the matters set out in the complaint promptly and impartially to determine whether there is
reasonable cause to believe that the allegations are supported by a preponderance of the
evidence.” Section 49-2-504(1), MCA. The HRB seeks in its investigation to “gather
sufficient information to allow a thorough scrutiny of the circumstances surrounding
complaints of discrimination.” Admin. R. M. 24.8.212(1). A party filing a complaint with
the HRB may “amend a complaint to cure defects or omissions . . . and to allege new facts
and matters arising out of continuing violation of law.” Admin. R. M. 24.8.752(1).
8
¶21 Borges asserted in his HRB complaint that the County discriminated against him
because of his disability, failed to provide a reasonable accommodation, and retaliated
against him for engaging in a protected activity. After he filed his District Court complaint,
Borges presented the court with the following facts that had arisen after he filed his HRB
complaint:
 That he proposed an amendment to the detention facility’s fragrance
policy stating, “MCDF is a fragrance-free workplace. Fragrances are
not permitted on staff, their clothing or their possessions”;
 That the County ignored his proposed amendment;
 That the County refused to enforce its own amended fragrance policy;
 That Kowalski suggested in January 2015 that the County equip
Borges with a respirator to use at work, but that the County refused to
do so;
 That the County did not discuss other potential individualized
accommodations with Borges; and
 That the County intentionally withheld Borges’s annual performance
evaluation due to the pending HRB investigation.
¶22 All of these facts relate to the claims made in Borges’s original October 2014 HRB
complaint. Borges made no amendments, however, to “allege new facts and matters arising
out of” the County’s alleged continuing discrimination. Admin. R. M. 24.8.752(1). He
had ample time to do so; the new facts arose in the final months of Borges’s active
employment, between November 2014 and February 2015, and the HRB continued its
investigation until June 2015. Because Borges continued in the County’s employ after he
alleged its failure to provide a reasonable accommodation, it is fair to expect that additional
actions would occur that related to his claim. Borges was obligated to supplement his claim
with new evidence of “the particulars of the [County’s] alleged discriminatory practice,”
9
§ 49-2-501(3), MCA, in order to allow the HRB to consider “new . . . matters arising out
of c ontinuing violation of law.” Admin. R. M. 24.8.752(1).
¶23 The Act constrains a district court to entertain only those claims that the HRB
adjudicates after a thorough investigation. See § 49-2-512(1), MCA; Griffith, ¶ 35;
Jones, ¶ 39; Shields, 284 Mont. at 149, 943 P.2d at 1005. Because Borges did not amend
his complaint to include new, relevant facts, the HRB’s decision was uninformed by those
facts.
¶24 Borges asserts that the County withheld the new facts from the HRB investigator,
that Borges discovered them only upon conducting discovery in the civil action, and that
he raised these facts to the District Court as soon as he became aware of them. But Borges
was aware of many of these facts as they occurred: that the County rejected his proposed
amendment to the fragrance policy, that it refused to enforce the fragrance policy in effect,
and that the County did not discuss other potential individualized accommodations with
him.
¶25 To the extent that Borges’s additional facts supported allegations of separate acts of
discrimination, the District Court properly declined to consider them. Borges is correct,
though, that neither the MHRA nor Admin. R. M. 24.8.752(1) necessarily forecloses a
district court’s consideration of evidence that may be relevant to an existing claim of
discrimination. But Borges has not shown how this evidence would have impacted his
discrimination claim. His proposed amendment to the fragrance policy would have banned
all fragrances worn by detention facility staff. Yet Borges frequently encountered disabling
fragrances other than those worn by his coworkers, such as on scented items in the
10
workplace, on the persons and belongings of arrestees and members of the public, and from
odors due to repair work at the facility. Borges’s proposed policy would not have banned
these odors or fragrances. It is unclear how Borges’s proposed accommodation would have
enabled him to perform his job without limitation, given that it too would not have shielded
him from offensive fragrances while at work. That the County rejected his proposed
amendment does not raise a material issue of fact in his discrimination claim.
¶26 Borges also fails to show how facts that he presented to the District Court of which
he was unaware during the HRB investigation—that the County had refused to consider
Kowalski’s suggestion of equipping Borges with a respirator and that the County withheld
Borges’s performance evaluation in alleged retaliation for his HRB complaint2—are
material to his discrimination claim. Borges never requested a respirator, nor did any
healthcare professional suggest that he use one. The fact that one of Borges’s supervisors
floated an idea for an accommodation that the County did not adopt does not substantiate,
without more, that the County failed to offer a reasonable accommodation to Borges.
¶27 Borges asserts that the County’s withholding of his annual performance evaluation
due to his pending HRB claim was evidence of the County’s unlawful retaliation. But
retaliation requires that the employer take a “significant adverse act” against the employee,
such as “discharge, demotion, denial of promotion, denial of benefits or other material
adverse employment action.” Admin. R. M. 24.9.603(1), (2). The County’s withholding
of Borges’s performance evaluation did not adversely affect his employment in any
2
Borges changed the basis of his retaliation claim, based on the evidence obtained during
discovery in the District Court proceedings, from the County’s alleged denial of his promotion to
the County’s withholding of his annual performance evaluation.
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material way. Further, the record shows that the County withheld Borges’s performance
evaluation out of concern that conducting an evaluation would be seen as retaliation for his
HRB complaint. The County’s actions did not constitute a “significant adverse act” and
therefore were not material to his claim of retaliation. Admin. R. M. 24.9.603(1).
¶28 Borges argues that the District Court should have considered the post-October 2014
facts under the “transaction rule” of § 26-1-103, MCA. That statute provides, “Where the
declaration, act, or omission forms part of a transaction which is itself the fact in dispute
or evidence of that fact, such declaration, act, or omission is evidence as part of the
transaction.” Section 26-1-103, MCA. This provision pertains to the admissibility of
evidence and is commonly used to admit evidence of “prior acts” that are linked to a
charged offense in criminal cases. See, e.g., State v. Berosik, 2009 MT 260, ¶ 45, 352 Mont.
16, 214 P.3d 776; State v. Gittens, 2008 MT 55, ¶ 37, 341 Mont. 450, 178 P.3d 91. Borges
cites no authority explaining why this provision should override the Act’s specific mandate
that a District Court may hear only claims that have been adjudicated by the HRB. See
§ 49-2-512(1), MCA; § 1-2-102, MCA (“When a general and particular provision are
inconsistent, the latter is paramount to the former, so a particular intent will control a
general one that is inconsistent with it.”). The District Court did not err in declining to
consider evidence arising after Borges filed his HRB complaint.
¶29 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.
¶30 Borges argues that, regardless of the evidence arising after he filed his HRB
complaint, the District Court erred in granting summary judgment to the County because
12
he demonstrated a genuine issue of material fact whether the County failed to engage him
in an interactive dialogue or to provide him a reasonable accommodation. Borges contends
that the court impermissibly made credibility determinations of witnesses, failed to make
reasonable inferences in favor of Borges, and improperly resolved disputed issues of
material fact.
¶31 “It is an unlawful discriminatory practice” for an employer to “fail to make
reasonable accommodations to the known physical or mental limitations of an otherwise
qualified employee.” Admin. R. M. 24.9.606(1)(a). “A person with a physical or mental
disability is qualified to hold an employment position if the person can perform the
essential functions of the job with or without a reasonable accommodation for the person’s
physical or mental disability.” Admin. R. M. 24.9.606(2). Thus, “[i]f a person suffers
from a disability, the employer has a duty to provide a reasonable accommodation if, with
such accommodation, the person could perform the essential job functions of the position.”
Pannoni v. Bd. of Trs., 2004 MT 130, ¶ 27, 321 Mont. 311, 90 P.3d 438 (citing
§ 49-2-101(19)(b), MCA, and Admin. R. M. 24.9.606(2)). “This duty to make reasonable
accommodations is an essential part of Montana’s anti-discrimination statutes.” McDonald
v. Dep’t of Envtl. Quality, 2009 MT 209, ¶ 40, 351 Mont. 243, 214 P.3d 749.
¶32 Reasonable accommodations for an employee with a disability may include, among
other things, making work facilities “readily accessible to and usable by” persons with
disabilities, “job restructuring,” “modified work schedules,” “acquisition or modification
of equipment or devices,” or “appropriate adjustment or modifications of examinations or
training materials or policies.” Admin. R. M. 24.9.606(3). An accommodation is
13
considered “reasonable” as long as it does not “impose an undue hardship upon the
employer,” such as causing “significant difficulty or extraordinary cost.” Admin. R. M.
24.9.606(4), (5).
¶33 We look to guidance from federal anti-discrimination law under the ADA when
construing provisions of the MHRA. BNSF Ry. Co. v. Feit, 2012 MT 147, ¶ 8, 365 Mont.
359, 281 P.3d 225. Under the ADA, when an employee notifies the employer of the
employee’s disability and desire for an accommodation, that notification triggers the
employer’s obligation to engage in an “interactive process” with the employee to identify
potential reasonable accommodations. Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1114 (9th
Cir. 2000), vacated on other grounds by US Airways, Inc. v. Barnett, 535 U.S. 391, 122 S.
Ct. 1516 (2002).
The interactive process requires communication and good-faith exploration
of possible accommodations between employers and individual employees.
The shared goal is to identify an accommodation that allows the employee to
perform the job effectively. Both sides must communicate directly,
exchange essential information, and neither side can delay or obstruct the
process.
Barnett, 228 F.3d at 1114-15.
¶34 Borges alleged in his HRB complaint that the County failed to provide a “reasonable
accommodation” for his disability; he did not allege that it failed to engage in an interactive
process or dialogue with him to identify a reasonable accommodation. These two claims
are qualitatively different. An interactive dialogue violation may be defined as a failure by
the employer to communicate with the employee about potential accommodations, see
Barnett, 228 F.3d at 1114, whereas a reasonable accommodation violation refers to the
employer’s ultimate failure to take action that would permit an otherwise-qualified
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employee to perform his essential job functions, see Admin. R. M. 24.9.606(1)(a). Because
Borges did not claim in his HRB complaint that the County failed to engage in an
interactive process, he was not permitted to raise that claim to the District Court, and we
decline to hear it on appeal.3 See § 49-2-512(1), MCA; Griffith, ¶ 35; Jones, ¶ 39; Shields,
284 Mont. at 149, 943 P.2d at 1005.
¶35 As to Borges’s claim of a reasonable accommodation violation, the County had “a
duty to provide a reasonable accommodation to [Borges] if, with such accommodation,
[Borges] could perform the job’s essential functions.” McDonald, ¶ 40. “As long as a
reasonable accommodation available to [the County] could have plausibly enabled
[Borges] to adequately perform his job,” the County was required to “attempt that
accommodation.” Humphrey v. Mem’l Hosps. Ass’n, 239 F.3d 1128, 1136 (9th Cir. 2001)
(citation and internal quotations omitted).
¶36 The undisputed facts show that the County made good faith efforts to develop a
reasonable accommodation that could enable Borges to perform his job. When the County
became aware of Borges’s disability in May 2014, Baumgart told Borges that the County
wished to engage him in a dialogue about possible accommodations at work. When Borges
agreed that a “fragrance-free” policy would be helpful, Baumgart assured Borges that the
County would begin to explore this possibility. Bishop worked with Borges to prepare an
3
Borges argues on appeal that the District Court improperly decided a disputed issue of material
fact when it interpreted his June 24, 2014 email to Baumgart as communicating that he wanted to
“drop out” of the interactive dialogue. Borges asserts that he was referring in that email to an
unrelated dispute with a coworker. Because the court considered that email in the context of
Borges’s interactive dialogue claim, and because Borges was not permitted to raise that claim
before the District Court, the court’s interpretation of Borges’s email is immaterial to this appeal.
15
ADA reasonable accommodation request, and County staff met on June 17, 2014, to
discuss potential accommodations for Borges. Baumgart offered to meet with him “at any
point” that he wished. She also informed him that she, Evans, and Kowalski were looking
into a possible “fragrance-free” policy for the detention facility. Two weeks after the
County adopted its amended fragrance policy, County staff held a meeting to discuss the
policy with Borges.
¶37 The undisputed facts show also that the County was responsive to Borges whenever
he experienced incidents of intense hypersensitivity to smells. When two of Borges’s
coworkers hid perfume samples around his work station in June 2014, causing Borges to
experience headaches and anxiety, Evans investigated the incident, “verbally counseled”
those responsible, and reported the incident to Kowalski. Kowalski determined that the
coworkers likely had not been aware of Borges’s disability and that Evans had properly
handled the incident. When Borges complained of odors emanating from welding and
repair work at the detention facility in July 2014, Kowalski reversed the air flow in the
facility to clear Borges’s work area of the odors. When Borges encountered and disposed
of a scented mousepad in the detention facility’s booking area in September 2014, he
reported the incident to Baumgart. Baumgart advised him that he should “feel free to fill
out a notice of injury” in order to document the incident. Finally, when Borges complained
of encountering offensive fragrances while interacting with a tour group at the detention
facility, Kowalski permitted him to leave the area, and Evans took over Borges’s duties
until the smells dissipated. When Baumgart heard about this incident, she asked Evans to
16
“schedule tours so [Borges] does NOT have to be involved.” Evans responded that Borges
was not required to participate in the tours.
¶38 The undisputed facts show finally that no reasonable accommodation in the form of
a fragrance policy existed that could have enabled Borges to come across members of the
public and arrestees—central components of his job—without encountering offensive
fragrances. As the County told Borges at the October 22, 2014 meeting, and as Borges
implicitly acknowledged by limiting his own proposed fragrance policy to detention
facility staff, the County could not have enforced, without “significant difficulty,” a policy
banning all fragrances worn by arrestees and members of the public. Admin. R. M.
24.9.606(5). Borges does not allege that the County’s failure to adopt a more restrictive
fragrance policy contributed to his deteriorating medical condition or to his increasing
sensitivity to fragrances. The County was required to provide a reasonable accommodation
only “if, with such accommodation, [Borges] could perform the essential functions of the
position.” Pannoni, ¶ 27. The record does not establish a genuine issue of material fact
whether an accommodation in the form of a fragrance policy different from the one the
County adopted would have permitted Borges to perform his essential job duties.
¶39 Because the undisputed material facts show that the County engaged in a good faith
effort to develop a reasonable accommodation for Borges, that the County accommodated
Borges’s needs when he encountered offensive fragrances at work, and that no reasonable
fragrance policy could have fully shielded Borges from offensive fragrances in the work
place, no genuine issue of material fact exists whether the County adequately attempted to
17
provide a reasonable accommodation. The District Court therefore correctly granted
summary judgment to the County. See Saucier, ¶ 33.
CONCLUSION
¶40 The District Court’s summary judgment order is affirmed.
/S/ BETH BAKER
We Concur:
/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA
/S/ JIM RICE
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