NO. 00-349 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

2001 MT 177 

ROBERT W. BUTTERFIELD, 

Plaintiff and Appellant, 

v. 

SIDNEY PUBLIC SCHOOLS AND THE 4,!-$: 3 3 NOI 

HUMAN RIGHTS COMMISSION OF THE 

STATE OF MONTANA, 4 , p li - i~~~if~.t , : 3 ~<'i;:~</ig(.Ic~Jf?i 1-7 c a.rr ru%.s,lnc*A 

Defendants and Respondents. 

APPEAL FROM: District Court of the Seventh Judicial District, 

In and for the County of Richland, 

The Honorable Richard G. Phillips, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Marvin J. Howe, Schneider, Howe & Batterman, P.C., Glendive, MT 

For Respondents: 

William J. Speare, Moulton, Bellingham, Longo & Mather, P.C., Billings, MT 

(For Sidney Public Schools) 

Submitted on Briefs: May 17,2001 

Decided: August 30,2001 

Filed: 

Clerk 
Justice Terry N. Trieweiler delivered the Opinion of the Court. 

71 The Appellant, Robert W. Butterfield, filed a petition with the Montana Department 

of Labor and Industry in which he alleged that the Sidney Public Schools discriminated 

against him because of a physical disability. The Department's hearing examiner concluded 

that the School District had unlawfully discriminated against Butterfield. The District 

appealed to the Montana Human Rights Commission, which reversed the final decision of 

the Department. Butterfield then sought judicial review of the Commission's decision in the 

District Court for the Seventh Judicial District in Richland County, which affirmed the 

decision of the Commission. Butterfield now appeals from the order of the District Court. 

We reverse the District Court. 

72 The sole issue presented on appeal is whether the District Court erred when it affirmed 

the Commission's conclusion that Butterfield is not disabled or regarded by his employer as 

disabled. 

FACTUAL BACKGROUND 

73 The Sidney Public Schools hired Robert W. Butterfield as a school custodian on 

August 28, 1995. Butterfield's job description included a requirement that he be able to lift 

heavy objects and equipment. The District did not require Butterfield to take a physical 

examination before or after being hired. 

74 Butterfield hurt his back in an auto accident in April 1996. He returned to work in 

June 1996, with his doctor's approval. Although he continued to have back problems, 

Butterfield was able to adequately perform his job by doing less heavy lifting. 

2 
75 On July 8, 1996, Butterfield submitted a claim for worker's compensation as a result 

of a back injury sustained on July 1, 1996, while cleaning under some bleachers at work. 

Butterfield's doctor, Dr. Donald A. Cooper, recommended that Butterfield remain on leave 

from work until his condition improved. Butterfield discussed this recommendation with 

Superintendent Douglas Sullivan, who informed Butterfield that he could return to work 

when his doctor released him. 

76 Butterfield attended physical therapy, prescribed by Dr. Cooper, but did not complete 

the prescribed number of sessions. In August 1996 his therapist determined that Butterfield 

could return to work with good pain management. However, Butterfield remained off work. 

77 The District's insurer referred Butterfield to another doctor, Dr. William Shaw, for an 

evaluation in November 1996. Dr. Shaw determined that any back problems stemming from 

the July 1,1996, injury at the school had stabilized and reached maximum healing. Dr. Shaw 

did not think that Butterfield required any restrictions beyond those under which he had 

successfully performed his job prior to the July 1, 1996, accident. 

78 While continuing his treatment with Dr. Cooper, Butterfield received additional 

treatment from an orthopedic surgeon, Dr. Lotfi Ben-Youssef. Dr. Ben-Youssef concluded 

in May 1996 that Butterfield would probably not be able to return to his job. Dr. Cooper 

eventually released Butterfield to return to work in June of 1997. 

79 By letter dated February 28, 1997, Superintendent Sullivan told Butterfield that he 

was putting him on leave pursuant to the Family Medical Leave Act for up to the maximum 

12 weeks. The letter asked Butterfield to obtain releases from his treating physician before 

3 
returning to work. Butterfield's FMLA leave expired on May 20, 1997. However, 

Butterfield did not immediately return to work. On June 23, 1997, Sullivan sent Butterfield 

a letter requesting written notification from the treating physician that Butterfield could 

return to work or, alternatively, Butterfield's written resignation. The letter informed 

Butterfield that he had until July 8, 1997, to respond or the District would fill his position. 

710 Butterfield asked Dr. Cooper for a release allowing him to return to work. On June 

24, 1997, Dr. Cooper released Butterfield to return to work but restricted his heavy lifting, 

limited his back movement, and limited use of his left shoulder. Butterfield obtained a 

release from Dr. Ben-Youssef on July 1,1997. Dr. Ben-Youssef also restricted heavy lifting 

and use of the left shoulder. 

71 1 Sullivan reviewed the releases and consulted with counsel before concluding that 

Butterfield could not perform the essential functions of his job with the physicians' 

restrictions. Sullivan believed that he could not hire custodians unable to do heavy lifting 

and did not consider allowing Butterfield to return to work with a heavy Iifting restriction. 

712 Sullivan met with Butterfield and told him that he could not do the job with the lifting 

restrictions. Sullivan gave Butterfield a letter which explained the District's position. The 

letter said that the District believed that Butterfield could not do his job with the restrictions 

and that the District was not aware of any accommodation that would permit Butterfield to 

do the job with restrictions. Finally, the letter stated that the District wanted Butterfield to 

resign effective July 18, 1997. 

713 Because Butterfield believed he could still do the job, he did not resign. Instead, he 

4 
returned to Dr. Ben-Yousseff s office and obtained a release written by a nurse allowing him 

to lift 50 pounds or less. Sullivan refused to consider a release signed by a nurse. 

Furthermore, because the nurse's release came after the July 18, 1997, deadline, the District 

considered Butterfield as having resigned. However, Sullivan gave Butterfield until August 

1, 1997, to obtain a sufficient release. 

714 Butterfield went back to Dr. Ben-Yousseff and got a letter releasing him to perform 

the custodian's job with no restrictions. Butterfield went back to Dr. Cooper and got a 

modified release which contained the same restrictions as the prior release, except that the 

release specified that Butterfield could not lift anything over 50 pounds. Butterfield obtained 

both releases before August 1. 

71 5 Despite the new releases, Sullivan told Butterfield that the District believed that he 

could not perform the essential functions of his job. Sullivan then wrote another letter 

informing Butterfield that the new releases were insufficient. Sullivan told Butterfield that 

he intended to recommend that the Board of Trustees accept Butterfield's resignation. 

716 On September 3, 1997, Butterfield filed a petition with the Montana Department of 

Labor and Industry in which he alleged that the Sidney Public Schools discriminated against 

him by refusing to allow him to return to his job as a custodian because of his physical 

disability. After a contested case hearing, the Department concluded that the District had 

unlawfully discriminated in employment by refusing to accommodate Butterfield and by 

refusing to return him to his job. 

71 7 The District appealed to the Montana Human Rights Commission, which reversed the 

5 
Department's final agency decision. Butterfield filed a petition for judicial review in the 

District Court for the Seventh Judicial District in Richland County. On March 27,2000, the 

District Court affirmed the order of the Commission. Butterfield now appeals from the order 

of the District Court. 

DISCUSSION 

71 8 Butterfield contends on appeal that the hearing examiner found that he was disabled 

and that those findings were supported by substantial evidence. Consequently, Butterfield 

argues that the Commission and the District Court erred by disregarding the hearing 

examiner's findings to conclude that he was not physically disabled. 

719 The District asserts that the Commission did not reverse the hearing examiner's 

findings of fact. It contends that the Commission simply reversed the examiner's conclusion 

that Butterfield was disabled or regarded as disabled. The District contends that that 

conclusion was incorrect because Butterfield failed to prove that he was significantly 

restricted in performing a "broad range of jobs" and showed only that he could not perform 

the custodian's job because it required lifting more than 50 pounds. Having reviewed the 

record and the hearing examiner's findings, we now conclude that the District 

mischaracterizes Butterfield's burden and that he satisfied his burden when he proved and the 

hearing examiner found that he is significantly restricted in the ability to perform that class 

ofjobs which requires heavy physical labor, or at least that his employer regarded him as so 

restricted. 

720 Section 49-2-303, MCA, provides that it is an unlawful discriminatory practice to 

6 
refuse employment to a person because of physical disability when the demands of the 

position do not require a distinction based on physical disability. Section 49-2- 10 1(19)(a), 

MCA, defines physical or mental disability as an impairment that substantially limits one or 

more of a person's major life activities or is regarded by the employer as such an impairment. 

721 "Major life activities" are not defined in Montana's Human Rights Act. However, we 

have previously relied on federal regulations adopted by the Equal Employment Opportunity 

Commission (EEOC) pursuant to the Federal Rehabilitation Act for purposes of defining 

"major life activities." See Hafner v. Conoco, Inc. (1994), 268 Mont. 396, 402, 886 P.2d 

947, 951. 29 C.F.R. 8 1630.2 (2000) of those regulations provides in relevant part as 

follows: 

(h) physical or mental impairment means: 

(1) any physiological disorder, or condition, . . . affecting one or more of the 

following body systems: . . . musculoskeletal . . . 

(i) Major life activities means functions such as . . . performing manual tasks, 

. . . and working. 

(3) with respect to the major life activity of working - 

(i) the term substantially 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. 

(1) is regarded as having such an impairment means: 
(2) has a physical or mental impairment that substantially limits major life 

activities only as a result of the attitudes of others toward such impairment; 

722 In other words, based on the federal regulations adopted pursuant to the Federal 

Rehabilitation Act after which Montana's Human Rights Act was patterned, Butterfield had 

to prove that he is disqualified from "a class ofjobs." 

723 In applying the provisions of our Human Rights Act, we have also in the past relied 

on the EEOC Interpretive Guidelines and, in particular, the Interpretive Guideline to 29 

C.F.R. tj 1630.26) which defines "substantially limits" as applied to the major life activity 

of working. See Reeves v. Daiv Queen, Inc., 1998 MT 13,7 25,287 Mont. 196,7 25,953 

P.2d 703, 7 25. That same Interpretive Guideline to the extent that it is relevant to the issue 

in this case, provides: 

On the other hand, an individual does not have to be totally unable to work in 

order to be considered substantially limited in the major life activity of 

working. An individual is substantially limited in working if the individual is 

significantly restricted in the ability to perform a class of iobs or a broad range 

of jobs in various classes, when compared with the ability of the average 

person with comparable qualifications to perform those same jobs. For 

example an individual who has a back condition that prevents the individual 

from performing any heavy labor job would be substantially limited in the 

major life activity of working because the individual's impairment eliminates 

his or her ability to perform a class of jobs. This would be so even if the 

individual were able to perform jobs in another class, e.g., the class of semiskilled jobs. . . . 

EEOC Interpretive Guidelines, 29 C.F.R. 5 1630.26), App. at 353-54 (2000) (emphasis 

added). 

124 The example given in the cited EEOC Interpretive Guideline is the exact situation 
proven and found by the hearing examiner to exist in this case. Butterfield has a back 

condition that either prevents him from performing heavy labor or which his employer 

regards as precluding heavy labor. He is therefore substantially limited in the major life 

activity of working because his impairment eliminates his ability to perform a class of jobs. 

This is so even though it is suggested, but not proven, that he can perform other jobs. 

Therefore, the burden suggested by the District, that Butterfield be required to prove that he 

was incapable of performing a "broad class of jobs," is an incomplete statement of the law. 

725 Within this legal framework, the hearing examiner found that Butterfield was 

physically disabled. Nowhere does the School District or the District Court contend that the 

findings of the hearing examiner were not supported by substantial evidence. 

726 The hearing examiner found that prior to his termination, Butterfield had been referred 

by his workers compensation insurer to a doctor who disclosed to his employer that he had 

had chronic back problems for nearly 20 years up to and including the date of his workrelated injury. (Finding No. 5). The hearing examiner also found that although Butterfield 

believed he could return to work following his work-related injury, his attending physicians 

restricted his activities in June and July of 1997 respectively by recommending that he avoid 

heavy lifting, limit his back movement, limit use of his left shoulder, and restrict himself to 

light duty back movement. (Findings No. 8 and 9). Butterfield's employer reviewed these 

recommended restrictions and concluded that someone who could not do heavy lifting could 

not perform Butterfield's custodian position and refused to allow Butterfield to return to work 

with a heavy lifting restriction. (Finding No. 10). Because of his physical impairment, 
Butterfield was not allowed to return to work. (Finding No. 1 I). Butterfield does not have 

a high school diploma and has limited transferrable skills. (Finding No. 16). 

727 Although not designated as a "finding," the hearing examiner went on to state on page 

6 of his decision in terms which surely amount to findings that: 

The district removed Butterfield from work because of limitations his doctors 

imposed. On the facts of this case, Butterfield suffered from a condition 

regarded as a substantially limiting impairment by the district. Indeed, for a 

worker with a limited education and a spotty work history, the restrictions 

Butterfield brought to his employer in July 1996 could and did result in a 

substantial limitation of his employment. Butterfield was disabled. 

The district disputed Butterfield's disability, but did not dispute that his 

limitations were the reason it removed him from employment. There was no 

real dispute about the reason why the district ended Butterfield's employment. 

... 

728 The hearing examiner could not have found disability in terms that more clearly reflect 

this state's statutory definition of the term as further described by federal regulation, federal 

interpretive guidelines, and our own decisions than was done in the hearing examiner's 

findings and opinion. 

729 Furthermore, the facts of this case are practically indistinguishable from the relevant 

facts in Hafner v. Conoco, Inc. (1994), 268 Mont. 396,886 P.2d 947. In Hafner the plaintiff 

was offered a probationary position as a "helper" at Conoco's refinery in Billings. However, 

hll time employment was conditioned on the successful completion of a pre-employment 

physical. Hafner was examined by the same doctor, William Shaw, who reported 

Butterfield's chronic back condition in this case. He noted that based on a prior knee injury, 

he would "expect problems [with Hafner's knee] with climbing and squatting." He concluded 
that Hafner had degenerative joint disease in his knee joint which would accelerate with 

repetitive climbing, squatting, and carrying. Shaw's opinion was reinforced by the opinion 

of a second physician. The personnel director at Conoco then decided that Hafner could not 

perform the "helper" position in a safe manner and could not be considered for further 

employment. Hafner filed a claim that he had been discriminated against based on a 

disability. However, the district court granted summary judgment to Conoco based on its 

conclusion that Hafner had failed to prove he was physically handicapped or was "regarded 

as" physically handicapped as the term was then defined at 8 49-2- 101 (1 5)(a), MCA [now 

5 49-2- 10 1(19)(a), MCA]. 

130 On appeal this Court was asked to decide whether there was sufficient evidence to 

establish that Hafner was "regarded as" physically handicapped by Conoco. We noted that 

it is not sufficient to prove that an employer simply regards an employee incapable of 

satisfying the demands of a particular job. However, citing Forrisi v. Bowen (4th Cir. 1986), 

794 F.2d 93 1, 935, we quoted with approval that: 

The statutory reference to a substantial limitation indicates instead that an 

employer regards an employee as handicapped in his or her ability to work by 

finding the employee's impairment to foreclose generally the type of 

employment involved. 

Hafner, 268 Mont. at 402, 886 P.2d at 951. 

73 1 We noted that the Conoco personnel director testified that in his opinion Hafner was 

restricted in basic job knctions that would limit his performance of work or could limit his 

performance of work and on that basis held: 
Under the federal standard, which we adopt, and based on the testimony of the 

Conoco personnel director, we conclude that Hafner has established that 

Conoco "regarded" him as physically disabled. We hold, therefore, that the 

District Court erred in determining that Hafner failed to establish the first 

element of a prima facie case of employment discrimination. . . . 

Hafner, 268 Mont. at 403, 886 P.2d at 95 1. 

732 We concluded in Hafner that the plaintiffs employer regarded him as physically 

disabled because it expressed the opinion that he was "restricted. . . .in basic job functions. 

. . ." It is clear from the hearing examiner's findings in this case that Butterfield was not 

allowed to return to work for the exact same reason. His employer considered him restricted 

in his ability to do heavy lifting. As such, Butterfield was regarded as restricted in the ability 

to perform that class of jobs which required heavy lifting and therefore was or was at least 

"regarded as" physically disabled. 

7/33 Accordingly, we reverse the judgment of the District Court and reinstate the final 

agency decision of the Montana Department of Labor and Industry. 

We Concur: 

Chief Justice 
Justices 
Chief Justice Karla M. Gray, dissenting. 

734 I respectfully dissent from the Court's opinion. I agree with the Court that the issue 

before us is whether the District Court erred when it affirmed the Commission's conclusion 

that Butterfield is not disabled or regarded by his employer as disabled. I also agree that the 

law cited by the Court is correct. I submit, however, that the Court attributes to the hearing 

examiner findings never made and ignores findings actually made. A proper analysis of the 

law and the record in this case requires this Court to affirm the District Court. I would do 

SO. 

735 With regard to the hearing examiner's findings, they do not include--as the Court 

would have the reader believe--a finding that Butterfield is disabled. The hearing examiner 

did make extensive findings of fact. He followed those findings with an Opinion containing 

his legal analysis, concluding therein that Butterfield was disabled and that he was regarded 

as disabled by the School District. These are the conclusions the Commission determined 

were incorrect as a matter of law. They also are the conclusions the District Court 

determined were incorrect as a matter of law in affirming the Commission's decision on 

judicial review. In my opinion, as discussed below, the Commission and the District Court 

were correct. 

736 The Court also states that the hearing examiner "found that [Butterfield] is 

significantly restricted in the ability to perform that class of jobs which requires heavy 

physical labor, or at least that his employer regarded him as so restricted." While such a 

14 
finding, if supported by substantial evidence, would mandate a conclusion that Butterfield 

is disabled, the fact is that no such finding is contained in the hearing examiner's extensive 

findings of fact. 

737 With regard to other findings, the Court is correct that Butterfield received releases 

to return to work in June and July, with restrictions from Dr. Cooper of no heavy lifting, 

limited back movement and limited use of his left shoulder, and with restrictions from Dr. 

Ben-Youssef from heavy lifting and lifting with his left shoulder and to light duty back 

movement. Important findings omitted by the Court are that Dr. Cooper modified his release 

of Butterfield to return to work in August of 1997, defining no heavy lifting as "over 

approximately 50 pounds" and that, while Butterfield continued to maintain he could perform 

his job within the restrictions, the School District believed "he could not perform the 

essential functions of his job." (Emphasis added.) Thereafter, and on the basis that 

Butterfield could not perform his job, the School District effectively terminated his 

employment. 

138 Turning, then, to an analysis of the case before us, we all agree that, to succeed with 

his claim of employment discrimination, Butterfield must establish he has a physical 

disability, that is, a physical impairment that substantially limits one or more of his major life 

activities or a condition regard by the School District as such an impairment. See 5 49-2- 

101 (19)(a), MCA. We also agree that he can meet this standard only by proving that his 

impairment precludes him from either a class of jobs or a broad range of jobs in various 
classes. See Thompson v. Holy Family Hosp. (9th Cir. 1997), 121 F.3d 537, 540. The 

Commission concluded Butterfield did not meet his burden and the District Court affirmed. 

The judicial standard of review of an agency's conclusion of law on a mixed question of law 

and fact is whether the determination is correct. Maguire v. State (1992), 254 Mont. 178, 

182, 835 P.2d 755, 757-58. 

739 On a careful review of the record before us, it is irrefutable that Butterfield has not 

established the elements of his cause of action against the School District. It is not disputed 

that Butterfield has a "bad back." It also is not disputed that the School District effectively 

terminated Butterfield's employment because it believed his back condition left him unable 

to perform his job. As set forth above, however, this is not enough to establish employment 

discrimination based on physical disability. 

140 An employer does not necessarily regard an employee as disabled simply by finding 

the employee incapable of satisfying the demands of a particular job. Hafner, 268 Mont. at 

402, 886 P.2d at 95 1 (citation omitted). Pursuant to the "substantially limits" a major life 

activity element contained in 5 49-2- 101 (1 9)(a), MCA, and in the EEOC Interpretative 

Guidelines on which the Court relies, Butterfield must establish that he is precluded from a 

class of jobs or a broad range of jobs. The record is clear in this case that he has not done 

so. Indeed, the hearing examiner's findings contain nothing which could be stretched to even 

relate to this requirement. Moreover, it is not surprising that Butterfield did not make this 

showing; his position from the outset of his back-related problems at work through the time 
the School District terminated his employment and afterwards was that he could perform his 

job. Illustrative of his position is Butterfield's testimony at the agency hearing on his claim 

that, after leaving the School District, he sought a variety of jobs which were as physically 

demanding as his former job with the School District and felt he could do the work. 

141 The Court cites to no finding actually made by the hearing examiner in this regard. 

The purported "finding" on which the Court relies--that Butterfield "is significantly restricted 

in the ability to perform that class ofjobs which requires heavy physical labor, or at least that 

his employer regarded him as so restrictedM--does not appear in the findings of the hearing 

examiner. In addition, while the EEOC Interpretative Guidelines quoted by the Court include 

as an example that an individual with a back condition that prevents the individual from 

performing any heavy labor job would be substantially limited in the major life activity of 

working because the physical condition eliminates the ability to perform a class of jobs, the 

critical language is "a back condition thatprevents the individual from performing any heavy 

laborjob." (Emphasis aded.) The guideline does not state, imply or even suggest that every 

"back condition" prevents an individual from performing any heavy labor job. That is the 

very proof a plaintiff like Butterfield must bring forward and it is the very proof which in this 

case simply was not presented. 

142 Finally, the present case is not "practically indistinguishable" from Hafner. There, as 

the Court points out, the personnel director testified that the plaintiff could not perform the 

position at issue and "could not be considered for further employment." No such evidence 
in support of the "substantially limits" element was outlined in any finding by the hearing 

examiner in the present case. Indeed, as noted above, the School District terminated 

Butterfield because he could not perform his job. Such a determination does not equate to 

the School District regarding Butterfield as disabled. See Hafner, 268 Mont. at 402,886 P.2d 

at 95 1 (citation omitted). The inability to perform one particular job, which is all Butterfield 

has established here, does not constitute a substantial limitation in the ability to perform a 

class ofjobs. See Thompson, 121 F.3d at 540. 

743 The District Court concluded Butterfield did not establish a case of employment 

discrimination based on physical disability. The District Court was correct, and I would 

affirm. I dissent from the Court's failure to do so. 

I 

Justice James C. Nelson joins in the foregoing dissenting Opinio 

Justice Jim Rice joins in the foregoing dissenting Opinion.