NO. 96-249 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

LAWRENCE E. WALKER, 

Plaintiff and Appellant, 

MONTANA POWER COMPANY, . ..d Jtnid I ,s OF SUPREME COURl 

5 IATE OF MONTANA 

Defendant and Respondent. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Thomas A. Olson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Michael J. San Souci and Peter B. Ohman, Law Office 

of Michael J. San Souci, Bozeman, Montana 

For Respondent: 

W. Wayne Harper, Butte, Montana 

Submitted on Briefs: August 15, 1996 

Decided: October 8, 1996 

Filed: 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

In this action, Lawrence Walker alleges that he was constructively discharged from employment with Montana Power Company (MPC) 

and that, in discharging him, MPC violated the federal Americans 

with Disabilities Act (ADA) and the Montana Human Rights Act. A 

jury in the Eighteenth Judicial District Court, Gallatin County, 

found for MPC. Walker appeals. We affirm. 

The issues are: 

1. Does substantial evidence support the jury's finding that 

Walker was not a disabled person? 

2. Does substantial evidence support the jury's finding that 

Walker was not constructively discharged from his employment with 

MPC? 

3. Did the District Court err in refusing to set aside the 

jury's verdict? 

Lawrence Walker began working as a lineman for MPC in 1969. 

In 1987, he was promoted to City Foreman of the Bozeman, Montana, 

division of MPC. 

In 1991, seven subforemen working immediately under Walker 

complained to Walker's supervisor about Walker's supervisory 

practices over workers on the line crews. Walker's supervisors 

investigated the complaints and concluded that, despite their 

efforts to coach him on promoting a team spirit with his subordinates, Walker was not communicating well with the crews he 

supervised. They realigned his job duties and responsibilities. 
Walker's salary remained the same, but he had different supervisory 

responsibilities. 

Walker's co-workers continued to report problems with his job 

performance. Additionally, other problems arose with his work 

performance. He was involved in two accidents with company 

vehicles. On several occasions, his company vehicle was observed 

parked at the Montana State University (MSU) gym on company time. 

Finally, the local MPC budget for tree trimming, for which he was 

responsible, was overspent for 1991. Walker's supervisor gave him 

written "reminders," or warnings, concerning the vehicle accidents 

and use of the MSU gym while on company time. 

On April 8, 1992, MPC demoted Walker to the title and pay of 

lineman. Beginning on that date, Walker took eleven months of 

medical and personal leave. From April 15, 1992, through May 11, 

1992, he obtained medical leave due to abdominal pain and sleep 

disorder. MPC extended this leave through September 11, 1992, 

after Walker submitted doctors' reports of headaches, weight loss, 

gastritis, back pain, vertigo, and, in August, a fall causing a rib 

fracture. 

Walker continued on sick leave until October 23, 1992, without 

submitting further written documentation of reason. On that date, 

he presented his supervisor at MPC with a doctor's written 

statement that he was totally disabled, for unspecified reasons, 

through the end of November. 

Walker then requested and was granted a three-month period of 

unpaid personal leave from December 1, 1992, to March 1, 1993. He 
did not return to work on March 1. His supervisor at MPC asked him 

by letter to return by March 3 or risk being considered to have 

voluntarily resigned. When Walker did not appear for work as 

scheduled on March 3, MPC terminated him from employment. MPC8s 

written reason for the termination was that Walker "[rlefused to 

work at a Lineman position." 

In his complaint filed in District Court, Walker initially set 

forth ten counts against MPC and two of his supervisors there. The 

District Court ordered the ten counts reduced to two: wrongful 

discharge and disability discrimination. The court dismissed the 

two supervisors as defendants, leaving MPC as the sole defendant. 

A five-day jury trial ended in a defense verdict. The jury 

found that Walker was not a disabled person and had not been 

constructively discharged from employment with MPC. Walker 

appeals. 

ISSUE 1 

Does substantial evidence support the jury's finding that 

Walker was not a disabled person? 

It is up to the jury to determine the credibility of witnesses. Cechovic v. Hardin & Associates, Inc. (1995), 273 Mont. 104, 

112, 902 P.2d 520, 525. We will affirm the jury's findings if 

substantial evidence supports them. Cechovic, 902 P.2d at 525. 

The first question for the jury on the verdict form was, "Do 

you find from a preponderance of the evidence that Plaintiff, 

Lawrence Walker, is a disabled person within the definition 
furnished by the instructions in this matter?" The jury answered 

"no. " 

The jury was instructed that "disability" means that a person 

has a mental impairment that substantially limits one or 

more of his major life activities, has a record of such 

impairment, or is regarded by the defendant as having 

such an impairment. 

"Major life activities" was defined for the jury as "functions such 

as caring for one's self, performing manual tasks, walking, seeing, 

hearing, speaking, breathing, learning, and working." The jury was 

further instructed that an individual "has a record of an impairment" if "he has a history of a mental impairment, even if 

misclassified, that substanLially limits one or more major life 

activities." The jury was instructed that an individual is 

"regarded as having a disability" if "his mental impairment does 

not limit a major life activity, but his employer, through its 

agents and employees, treats him as being so limited." 

Walker claims he suffered from a mental disability brought 

about by work-related stress. He maintains that he consequently 

had an acknowledged impairment which substantially limited him in 

the major life activity of work. He also maintains that he had a 

documented record of such impairment and that he was regarded as 

having such an impairment. 

While Walker has provided citations to cases which generally 

outline the law of disability and constructive discharge, neither 

of the cases upon which he places primary reliance is particularly 

helpful to his position in the present case. In Martinell v. 

Montana Power Co. (1994), 268 Mont. 292, 886 P.2d 421, this Court 

5 
held that work is a major life activity under the Montana Human 

Rights Act. As noted above, the jury was properly instructed in 

the present case that work is a major life activity. 

The other case upon which Walker places primary reliance is an 

unpublished opinion of the United States District Court of Montana, 

Richard Durham v. Montana Power Company (December 8, 1994), Cause 

No. CV-93-130. In that case, a jury found that Durham was a 

disabled person and a qualified individual with a disability under 

the ADA. The jury further found that MPC failed to provide Durham 

with reasonable accommodation for his disability. The verdict was 

upheld under the substantial evidence standard. 

In the present case, Dr. John Robbins, an internist, testified 

that he began treating Walker in April 1992. He believed Walker 

suffered from stress primarily caused by his working conditions and 

that Walker's symptoms would not be relieved unless the work issues 

were resolved. 

Dr. Robbins further testified that in July 1992, he released 

Walker to return to work. Dr. Robbins testified that he did not 

diagnose Walker with major or clinical depression, but with mild 

depression associated with an anxiety state. He testified that he 

did not advise Walker to seek counseling from a psychologist or 

psychiatrist. Walker's last documented visit to Dr. Robbins before 

his discharge was in August 1992, six months before his discharge, 

for dizziness resulting from a fall. 

Walker contends MPC was aware of medical reports from his 

treating physicians indicating that he was suffering from job- 
induced stress and consequent weight loss, symptomatic of depression. He cites the Equal Employment Opportunity Commission's 

Technical Assistance Manual, which provides that stress and 

depression may be impairments within the meaning of "disability" 

under the ADA. 

29 C.F.R. § 1630.2 (j) (3) (i) provides: 

With respect to the major life activity of workinq- 

(i) The term substantiallv limits means significantly restricted in the ability to perform either a 

class of jobs or a broad range of jobs in various classes 

as compared to the average person having comparable 

training, skills and abilities. The inability to perform 

a single, particular job does not constitute a substantial limitation in the major life activity of working. 

In Holihan v. Lucky Stores, Inc. (9th Cir. 1996), 87 F.3d 362, 

depression and anxiety prevented plaintiff Holihan from working as 

a store manager, but did not prevent him from working in real 

estate and sign-making business activities. Citing 29 C.F.R. 

§ 1630.2 (j) (3), the court ruled that Holihan's depression and 

anxiety did not render him disabled within the meaning of the ADA, 

because the depression and anxiety did not prevent him from working 

at a broad range of jobs, but only at a particular job. Holihan, 

Similarly, here, Walker has not contended that his depression 

and stress prevented him from working as a supervisor at MPC or in 

other employment, but only at a lineman position. Additionally, he 

testified that he could have physically and mentally performed the 

duties of a lineman after his demotion, if MPC had "removed the 

violence" from the workplace. 
The record of Walker's depression and stress is limited, at 

best. During his eleven-month absence from work at the end of his 

employment with MPC, Walker gave various reasons to justify his 

medical leave. The only evidence that he received treatment by a 

psychologist or psychiatrist for his claimed mental disability was 

that he had six sessions with a clinical psychologist in April and 

May of 1994. 

We turn next to Walker's claim that he was regarded as having 

a disability. Walker cites the evidence that his supervisors 

allowed him to take extended leave from work and that they 

suggested he seek counseling. He also cites notes taken by one of 

his supervisors at a meeting with him, in which the supervisor 

wrote that his behavior was "paranoid and almost schizo." Walker 

further cites MPC1s offer to discuss long-term disability leave 

with him as evidence that he was perceived as having a disability. 

Both of Walker's supervisors testified that they did not 

believe he had a record of, nor did they perceive that he had, a 

mental disability. MPC did not treat Walker as if he were limited 

in all fields of employment; only in the job of lineman supervisor. 

We conclude that the jury properly could have determined that 

the credible evidence weighed in favor of a finding that Walker did 

not have a mental impairment which rose to the level of a disability and that he did not have a record of such an impairment. 

Similarly, we conclude that substantial credible evidence exists in 

the record that Walker was not regarded as having a disability by 
MPC. We hold that substantial evidence supports the jury's finding 

that Walker was not disabled. 

ISSUE 2 

Does substantial evidence support the jury's finding that 

Walker was not constructively discharged from his employment with 

MPC? 

As part of its verdict, the jury answered in the negative the 

following question: "Do you find from a preponderance of the 

evidence that Plaintiff, Lawrence Walker, was constructively 

discharged from his employment with Montana Power Company?" The 

jury was instructed that, to prove this claim, Walker must 

establish that he voluntarily terminated his employment with MPC 

because of a situation that was created by an act or omission of 

MPC and that such act or omission created a situation that an 

objective, reasonable person would find so intolerable that 

voluntary termination was the only reasonable alternative. 

Walker argues that MPC1s failure to accommodate him by 

removing him from a hostile work environment constitutes a 

constructive discharge. In this regard, he again cites the 

Martinell case. Martinell had asked to be placed on day shifts 

instead of rotating shifts because of her health problems caused by 

pelvic inflammatory disease. This Court held that failure to 

accommodate Martinell by changing her work shifts was tantamount to 

a constructive discharge. Martinell, 886 P.2d at 436. In the 

present case, the jury was instructed on the law of constructive 

discharge without objection by Walker. Beyond general statements 
of the law of constructive discharge and disability, we are not 

persuaded that Martinell controls in this case. 

Walker complained of "violence in the workplace," which he 

maintained caused him a mental disability. In that regard, he 

testified about an incident of sexual harassment against a female 

MPC employee which occurred in the early 1980 ' s . He also described 

two other incidents to the jury, one of which involved an individual employed by a company which contracted with MPC, and the other 

involving an employee who was terminated from employment with MPC 

following the incident. 

Walker contends that had he taken the demotion to a lineman 

position, he would have been under the supervision of the same 

individuals whose performance dissatisfied him while he was a 

supervisor. He appears to be arguing that his April 1992 demotion 

to lineman was a constructive discharge. He attempted to present 

a case at trial that he was a conscientious MPC employee who was 

unpopular with other employees because he tried to make them live 

up to his work standards and ethics. 

Walker's supervisors testified that they informed him they had 

placements available for him other than under the men he formerly 

supervised, in the meter shop or on a substation crew, where he 

would not be working with the individuals about whom he had 

complained. Moreover, "[tlhe ADA does not require an employer to 

accommodate an employee who cannot get to work." Kotlowski v. 

Eastman Kodak Co. (W.D.N.Y. 1996), 922 F.Supp. 790, 798. Walker 
was not discharged until a full eleven months after his demotion, 

during which eleven months he had not reported for work. 

The record contains ample evidence that Walker's discharge 

from MPC's employ was for good cause--i.e., his failure to report 

for work after the expiration of his eleven month long series of 

medical and personal leave. We conclude that the record contains 

substantial evidence to support the jury's finding thdL Walker was 

not constructively discharged. 

ISSUE 3 

Did the District Court err in refusing to set aside the jury's 

verdict? 

This Court will not overturn a decision to grant or deny a 

motion for a new trial absent a showing of manifest abuse of 

discretion. Montana Bank of Red Lodge, N.A. v. Lightfield (1989), 

237 Mont. 41, 49, 771 P.2d 571, 577. 

Walker maintains that the jury's brief deliberation (forty 

minutes), when taken in conjunction with the relative complexity of 

the legal issues and the weight of the evidence in this case, 

supports his position that the court abused its discretion in 

refusing to set aside the verdict. 

As a general rule, shortness of time taken by a jury in 

reaching its verdict has no effect upon the validity of the 

verdict. Loppe v. Blocker (Iowa 1974), 220 N.W.2d 570, 574. Only 

when the brief jury deliberation is coupled with a verdict that is 

contrary to the great weight of the evidence should the trial court 
set aside the verdict. Kearns v. Keystone Shipping Co. (1st Cir. 

1988), 863 F.2d 177, 182. 

The relative complexity of the legal issues in this case had 

been narrowed and clarified by the court and counsel by the time 

the court gave its instructions to the jury. The verdict form 

contained just seven questions, not all of which the jury had to 

answer if it determined initially that Walker was not a disabled 

person within the meaning of the instructions. The second question 

the jury had to consider was whether Walker was constructively 

discharged, which issue, like whether he was disabled, we have 

discussed above. Based on the streamlining of the issues and upon 

our consideration of the issues which remained, we conclude that 

the jury's verdict is not contrary to the weight of the evidence 

and that the court did not abuse its discretion in refusing to set 

aside the verdict. 

Walker also lists as an issue whether "the trial court abused 

its discretion in excluding certain highly relevant testimony 

bearing on the motivation and pattern of hostile conduct directed 

against Walker by his antagonists. " However, Walker did not 

further explain or argue this issue in either of his briefs to this 

Court. Therefore, we do not address it. 

Af f irmed . 
We concur: 
October 8. 1996 

CERTIFICATE OF SERVICE 

I hereby certify that the following certified order was sent by United States mail, prepaid, to the 

following named: 

Michael J. San Souci; Peter B. Ohman 

Law Office of Michael J. San Souci 

11 East Main St., Mezzanine Level 

Bozeman. MT 59715 

W. Wayne Harper, Esq. 

Attorney at Law 

40 E. Broadway 

Butte, MT 59701 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA 

BY: 

Deputy