BEFORE THE MONTANA DEPARTMENT OF LABOR …

1 BEFORE THE MONTANA DEPARTMENTOF LABOR AND INDUSTRYOFFICE OF ADMINISTRATIVE HEARINGSIN RE OFFICE OF ADMINISTRATIVE HEARINGS CASE NO. 723-2017:DON SMIES, ) )Charging Party,)) HEARING OFFICER DECISIONvs.) AND NOTICE OF ISSUANCE OF) ADMINISTRATIVE DECISIONTOWN OF FAIRVIEW,))Respondent.)* * * * * * * * * * AND PRELIMINARY MATTERSDon Smies brought this complaint alleging Town of Fairview (Fairview)discriminated against him on the basis of disability and retaliated against him forprotected activity. Hearing Officer Caroline A. Holien convened a contested case hearing in thismatter on September 12, and September 13, 2017, in Sidney, MONTANA .

2 AttorneyEric E. Holm represented Smies. Attorney Jared S. Dahle represented Fairview. Fairview Police Chief Cal Seadeek appeared on its behalf. At hearing, Smies, Missy Smies, Chief Seadeek, and Mayor Brian Cummins,testified under oath. The parties stipulated to the admission of Charging Party sExhibits 1 through 21; as well as Respondent s Exhibits 104, 106, 118 and 120. Respondent s Exhibits 102-8 and 102-9 were admitted into the record . Exhibit 102-21 was excluded based upon Charging Party s hearsay objection. The parties stipulated to the admission of the deposition transcript of Roccisano. The deposition testimony of Dr.

3 Bruce Raymond Belleville wassubmitted to the Hearing Officer for her post-hearing review and involves documentsincluded in Exhibit 101. The parties disputed the admission of the depositiontestimony of Rajohn Karanjai. 1 Additionally, counsel graciously agreed to address the following issues in theirpost-hearing briefing: admissibility of the deposition testimony of Dr. Karanjai, and, ifadmitted, what evidentiary weight the deposition testimony should performance issues identified by Police Chief Cal Seadeek,specifically incidents involving Miller, Fugate, Kloker, and Hutzenbiller. issue of spoilation of evidence pertaining to the applicationmaterials submitted on behalf of Charging Party in December Party's standing objection to the admission of Exhibit 101,specifically the issue of whether the evidence constitutes inadmissiblehearsay.

4 The matter was deemed submitted for determination after the filing of the lastbrief that was timely received on November 2, 2017. Based on the evidence adducedat hearing and the arguments of the parties in their post-hearing briefing, thefollowing hearing officer decision is rendered. S MOTION FOR JUDGMENT AS A MATTER OF LAWRule 50, Mont. R. Civ. Proc., provides that a court may grant a party s Motionfor Judgment as a Matter of Law if a reasonable jury would not have a legallysufficient evidentiary basis to find for the party on that issue. Judgment as a matterof law is properly granted only when there is a complete absence of any evidencewhich would justify submitting an issue to a jury and all such evidence and anylegitimate inferences that might be drawn from the evidence must be considered inthe light most favorable to the party opposing the motion.

5 Johnson v. Costco Wholesale,2007 MT 43 at 13; 336 Mont. 105, 152 727 (citing Williams v. Union Fid. LifeIns. Co., 2005 MT 273, 329 Mont. 158, 123 213). Judgment as a matter of lawis not proper if reasonable persons could differ regarding conclusions that could bedrawn from the evidence. Id. (citing Kearney v. KXLF Communications, Inc., 263 , 417, 869 772, 777-78 (1994). At the close of Smies case, Fairview moved for dismissal of Smies complaintarguing Smies failed to meet his burden of proof. The Hearing Officer took the2motion under advisement and advised counsel that the motion would be addressed inher produced sufficient evidence through his testimony and documentaryevidence stipulated to by the parties that would, at the very least, lead reasonablepersons to differ regarding what conclusions could be drawn from the evidence hehad presented.)

6 Therefore, Respondent s Motion for Judgment as a Matter of Law ishereby DENIED. Did the Town of Fairview discriminate and/or retaliate against Don Smiesbased upon disability in violation of the MONTANA Human Rights Act, Title 49,Chapter 2, Mont. Code If the Town of Fairview did illegally discriminate and/or retaliate againstDon Smies as alleged, what harm, if any, did he sustain as a result and whatreasonable measures should the DEPARTMENT order to rectify such harm?3. If the Town of Fairview did illegally discriminate and/or retaliate againstDon Smies as alleged, in addition to an order to refrain from such conduct, whatshould the DEPARTMENT require to correct and prevent similar discriminatory and/orretaliatory practices?

7 ISSUES BRIEFED BY THE Deposition Testimony of Dr. Karanjai is Admissible and Relevantas to the Issue of Damages. Smies argues the deposition testimony of Dr. Rajohn Karanjai should not begiven great evidentiary weight, because the testimony is not relevant to the issues inthis case. Dr. Karanjai is Smies family practice doctor, who Smies argues played norole in his back surgery, release to work, or accommodation requests. Fairviewcounters that Dr. Karanjai is Smies primary treating physician and is in a position togive an informed opinion about Smies physical impairments and ability to performthe duties required of a police s argument is well taken.

8 Dr. Karanjai was in a position as Smies primary treating physician to have reviewed Smies medical records and to form anopinion as to Smies physical health and apparent ability to perform the job duties3required of a police officer. Dr. Karanjai s deposition testimony is relevant as towhether Smies would be able to return to work as a full-time police officer andtherefore must be considered when determining the appropriate damages in this case. Regarding the Performance Issues Noted by Chief Seadeek isRelevant and Admissible. Smies argues that evidence regarding alleged performance issues referenced athearing should be excluded from the record as it is irrelevant to any issue in the caseand calls for improper speculation.

9 Fairview counters that such evidence is relevantas to Smies claim for damages as it is likely Smies would have been discharged forthe complained of conduct. In support of its argument, Fairview included writtenstatements from those individuals complaining about Smies behavior. Thosecomplaints ranged from Smies allegedly making threatening comments and gesturestoward a teacher at Smies son s school; Smies allegedly approaching an individualand sending her a text message at or near the time she was serving as a juror; andallegedly threatening another officer. Evidence regarding Smies alleged performance issues is relevant as to the issueof whether Smies was discharged due to his alleged disability or for performanceissues, or a mixture of both.

10 It should be noted that the alleged incidents took placein early May 2015; September 2015; and November 5, 2015. It is unclear as towhether some of these incidents may have taken place when Smies was on a leave ofabsence related to his back injury. However, the issues raised in these complaints arepotentially relevant as to why Fairview may or may not have rejected Smies application in December 2015. Smies argument that the evidence should not be admissible as it can only leadto speculative testimony that Chief Seadeek would have terminated Smies if he hadnot been out on a leave of absence. Chief Seadeek testified it was likely that thecomplained of conduct may have resulted in Smies discharge.