No. 14304 INTHE SUPREME Cm OF THE STATE OFMONTANA

Plaintiff an3Appellant,

ST. JOHN'S LUTHERAN HOSPITAL, a Mntana Corporation, Defendant and Respondent.

Appeal frm: DistrictCourt of theNineteenth JudicialDistrict, Honorable IbbertM. Holter, Judgepresiding. Counselof Record: For Appllant: Fennessy

### ,Crocker and Harman, Libbv, blontana David Harmanargued, Libby, Wntana JeanGalloway Koreski argued, Washington, D. C. For Respondent: Lawrence H. Sverdrup, Libby, Ebntana SmithLawFixm, Helena, Mntana Cha6wic.k Smithargued, Helena, Fbntana

Filed: 

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## 5979Mr. Justice John C. Sheehy delivered the Opinion of the Court. This is an appeal from the District Court, Nineteenth Judicial District, Lincoln County, on a judgment against Marjorie C. Swansonwho was discharged from her employment

as a nurse-anesthetist at St. John's Lutheran Hospital in Libby. She brought her action in the District Court upon the ground that she had been wrongfully dismissed from her employment because she had asserted her rights under former section 69-5223,R.C.M. 1947,now section 50-5- 502 through -505 MCA. Former section 69-5223,has been referred to in briefs before this Court, as it was during its legislative history, as the "consciencestatute". For ease of reference,

we will use that term here, although the Court implies nothing by the use of that term. The conscience statute defined certain rights of medical persons who are confronted with sterilization procedures as a part of their employment. Specifically,the conscience statute includes these provisions:

"(2) All persons shall have the right to refuse to advise concerning, perform, assist, or participate in sterilization because of religiousbeliefs or moral convictions. If requested by any hospital or health carefacility, or person desiring sterilization, such refusal shall be in writing signed by the person refusing,but may refer generally to the grounds of

'religious beliefs and moral convictions'. The refusal of any person to advise concerning, perform, assist, or participate in sterilization,shall not be a consideration in respect to staff privileges of any hospital or health care facility,nor a basis for any discriminatory, disciplinary,or other recriminatory action against such person, nor shall such person be liable to any person for damages allegedly arising from such refusal."(3) It shall be unlawful to interfere or attempt to interfere with the right of refusal authorized by this section, whether by duress, coercion or any other means. The person injured thereby shall be entitled to injunctive relief,when appropriate and shall further be entitled to monetary damages for injuries suffered." The Court notes parenthetically that the legislature adopted virtually the sameprovisions with respect to abortion procedures in former section 94-5-620,R.C.M. 1947, now section 50-20-111MCA. The two-fold purpose of the conscience statute is plain: (1) Itmandates that no person can be compelled to participate in sterilization against his moral or religious principals; (2) It prohibits firing any person for refusing to participate in sterilization on such grounds. The law is statewide in its effect, embracing

as well the largest metropolitan hospitals and clinics and the smallest hospital or medical office in Montana. Marjorie Swanson is a Certified Registered NurseAnesthetist (CRNA)who was employed by the hospital for eight years prior to discharge in her professional capacity as a nurse-anesthetist. In the four years preceding August 1977, she had assisted professionally in twenty surgical procedures that involved sterilizations and in the year preceding August 1977, six such procedures. On August 19, 1975, she assisted professionally in a surgicalprocedure that was listed on the surgery schedule in the hospital as a "D and C",a dilatation and curettage. Immediately prior to the operation, in examining the chart of the patent, she had discovered that an abortion permit

was required by the hospital medical staff for this particular procedure. Nevertheless, she went ahead professionally and gave anesthetic to the patient. Duringthe course of the procedure she observed that a human fetus was removed from the uterine lining of the patient, part by part, by the use of instruments. Her observation of the dissection and removal of the fetal tissue caused her to be "horrified and very upset". August 19, 1977 was a Friday. Over the weekend, she learned that a procedure described as a bilateral partsalpingectomy, a tubal ligation,was scheduled for Tuesday,August 23, 1977. The operation had been listed on the surgical scheduleposted by the hospital on August 10, 1977,but the anesthetist first became aware of it

over the weekend immediately preceding the Tuesday operation date. On Monday, August 22, 1977, at about 10:OO a.m., she advised the administrator of the hospital, Dan Wigart, that shewould not participate in the tubal ligation, which is a sterilizationprocedure. The administrator "tried to convince [her] that [she] could participate in it". He also indicated that she should be able to assist at therapeutic abortions. Wigart asked her to withhold making a final decision until he had spoken to her local priest, and she said shewould also speak to him, although Wigart reported "she did have a sense of finality in it at that time." Rev. Charles Strom testified that on the afternoon of August 22, at about 3:00 p.m. he was approached by Dan Wigart who asked him for his help and "sounding out about her attitude on sterilization". In fact,Dan Wigart testified in part: 

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# . She repeated two or three times 'If Ihave to resign, I will. But I am not going to do tubal ligations.' I asked her to give me some background on this. I asked her to withhold her final decision until I talked to FatherStrom and Dr. Seifert, and also the two physicians who were involved in the D & C. 

### Imade every attempt to try to reduce her anxiety about the procedure. I felt that there were other factors that were bothering her. And I hoped that Father Stromwould have talked to her and supported her from the standpoint that participation in a tubal ligation does not represent direct participation. This is something that Dr. Seifert and I had talked about that samemorning." At 7:00 p.m. that evening,Marjorie Swanson called Wigart and informed him that her mind was made up and shewas not going to participate in tubal ligation. Thereupon Wigart obtained the services of a nurseanesthetist from Bonners Ferry, Idaho, and the surgery went ahead as scheduled. At 4:30 p.m. on August 23, 1977,Wigart telephoned Marjorie Swanson at her home and informed her that she

was discharged from her position as nurse-anesthetist at the hospital. She requested that he give her a written statement of the reasons for her discharge. He did so, sending her a letter in full as follows: "23August 1977 "Marjorie Swanson "Rt 2, Box 556 "LibbyMT 59923 "DearMarj: "This is to confirm our telephone conversation of August 23, 1977 wherein I informed you that St. John's Lutheran Hospital will continue to pay your salary for two weeks until September 6, 1977 at the usual rate. "Isincerely regret having to terminate your services. However, your untimely refusal to perform customary and needed services puts me in a position where I have fewviable alternatives. "Iwish you the very best in all future endeavors and Iwill pray that God leads you in a direction in which you can perform satisfactorily and grow as an individual within the limits of your conscience."Sincerely,

"Dan Wigart" No requestwas made by the hospital, nor by the person desiring sterilization, that Marjorie Swanson state in writing her grounds for refusal. At the trial,when asked upon what basis she did not wish to participate in the tubal ligation, she replkcl, "onmoral and religious grounds". After her discharge, appellant was paid by the hospital from August 23, 1977 through September 6, 1977 representing two weeks pay. On Wednesday, August 24, 1977,Wigart, in his office, told Nurse Marlys Mongan, an employee of the hospital, that the dismissal of Marjorie Swansonwas upsetting to him "because in the last three months he thought Marge had really come along as being a good team member". On Wednesday evening,August 24, 1977, at a nurses meeting, Wigart said, "Marge had refused to give anesthetic for a tubal ligation that was scheduled on Tuesday morning and that he had no alternativebut to give her two weeks notice." He stated no other reasons for her dismissal. In a subsequent conversation with Rev. Strom, either on Thursday, Thursday, August 25 or/september 1, 1977,Wigart indicated his feelings toward the state law concerning sterilization. Rev. Strom testified: "During those two conversations Dan Wigart first advised me about his experience in California. His experience with a union and then went into the idea that he changed his mind about the going for the union doings, and thathe now was very conservative and certainly was not union minded. And he saw the state law in the same category, and that it was his job to not let unions or state laws interfere with the operation of the hospital.

### " Marjorie Swanson filed her complaint against the hospital on September 13, 1977,alleging that she had been discharged because of her refusal to participate in the sterilization procedure. Defendant filed its answer

on November 22, 1977, and trial was had before the court, sitting without a jury on February 15, 1978. On April 5, 1978, the court entered its findings of fact and conclusions of law ruling against plaintiff Swanson. On April 11, 1978, Swansonmoved to amend the findings of fact and conclusions of law and judgment or in the alternative for a new trial and these motions were denied on April 13, 1978. Timely notice of appeal was filed on April 17, 1978. Swanson presents four issues for review: 1. The District Court finding that Swanson was an "employee of questionable value" is irrelevant and against the evidence. 2. The District Court erred in concluding that Swanson,having participated in sterilization procedures in the past was precluded from refusing to participate

on August 22, 1977. 3. The District Court erred in concluding that Swanson's rights under the conscience statute are outweighed by her employer's necessities, and her inability to maintain herself as an effective employee. 4. The District Court erred in holding that Swanson was required to cite her reasons for nonparticipation of the sterilization procedure at the time of her refusal.THE ISSUE THAT SWANSONWAS "AN EMPLOYEE OF QUESTIONABLE 

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### " In its finding no. 5, the District Court found that Swansonwas an employee of "questionablevalue" to the hospital for several reasons, including (a)when Swanson did not get the raise she expected, she did not talk to the administrator "for a day" and informed the administrator that he could find another anesthetist; (b) that Swanson abrasively handled a situation involving blood supplied from the hospital laboratory outside of the scope of her duties, causing disharmony; (c) Swanson argued about proceeding with a tonsillectomy procedure in such a manner as to upset the physician and cause disharmony; (d) it was constantly necessary for the administrator to assure Swanson that she

was a "team member" capable of holding up her end of the hospital work; (e)the hospital had difficulty with Swanson because shemade excessive demands, had difficulties with other employees, failed to recognize authority, refused to stay with patients recovering from anesthesia and naintained outdated drugs; and (f) in order to effectively operate a hospital, it is necessary that harmony prevail and that the staff act as a team and that Swanson did not so act. All of the foregoing reasons utilized by the District Court to determine that Marjorie Swansonwas an employee of questionable value were irrelevant,because they were outside of or not included in the August 23, 1977 letter of Wigart to Swanson stating the reasons for her discharge. The letter had been delivered in accordance with the demand of the discharged employee. Under section 41-1311, R.C.M. 1947,now section 39-2-801 MCA, upon such demand, the employer must furnish to the discharged employee a "full, succinct and -8-complete reason of discharge". The letter of August 23, 1977 was the employer's compliance with that statute. The writing required of the employer by former section 41-1311 is known as a "serviceletter" (51C.J.S. Labor Relations, 815,p. 588). A statute such as former section 41-1311 becomes a part of any employment contract entered into by an employer and an employee in the State of Montana. Brinks Inc. v. Hoyt (8thCir. 1950), 179 F.2d 355, 358. The wording of such service letter statutes varies from state to state, but generally it is held that such a statute requires valid, clear and true reasons for the discharge, or a statement of the "real,honest and factual" reasons. Cumby 

### v. Farmland Industries, Inc. (Mo.App. 1975), 524 S.W.2d 132, 135. Where, as in Montana, the purpose of the statute is to prevent "blacklisting", it is our duty to interpret former section 41-1311 requiring a "full, succinct and complete" statement to mean exactly what it says. Therefore, in the

case at bar, the only reason which could be considered by the District Court was the reason set forth in the letter of August 23, 1977,her "untimely refusal to perform customary and needed services." The other reasons found by the District Court that made the employee one of questionable value were irrelevant because those reasons were not contained in the August 23, 1977 letter defining the reasons for her discharge. Moreover, the finding by the District Court of other

reasons for her discharge not set out in such letter are not supported by the evidence. The finding that Marjorie Swanson did not get the raise she expected in April 1977, that she did not talk to the administrator and that she informed him hecould find another anesthetist, is based on evidence to which an objection was sustained by the District Court during the trial. It is not a part of the record. The clear weight of the evidence relating to the situation involving blood from the laboratory is on Marjorie Swanson's side. The attending physician, in a surgical procedure, had ordered whole blood and instead, the laboratory sent packed cells. Because she objected that the laboratorywas not following the physician's orders, eventually the laboratory began sending whole blood

as ordered. Her objection may have caused disharmony with the laboratory, but she felt it was within her professional competence to alert the staff about the problem. She is not to be blamed for alerting the hospital to a disregard of the doctor's orders. The finding relating to the tonsillectomy procedure is again not based on the evidence. In this case, the patient had an elevated temperature and as an anesthetist, she refused to be responsible for administering anesthetic to a patient in that condition. This was completely within her competence. When she refused to go along with that procedure unless the hospital would accept the responsibility, the administrator of the hospital refused to accept it, under the undisputed evidence. Moreover, these incidents all occurred in October

or November 1976, except for her pay raise dispute which occurred in April 1977. As to the general findings of the court that Marjorie Swanson made excessive demands,had difficulties withother employees, failed to recognize authority,refused to stay with patients recovering from anesthia, and maintained outdated drugs, none of these are supported by the evidence. Her only demands related to her wage negotiation; the only employee of the hospital appearing to testify, testified in her favor; Swanson recognized the authority of the administrator and of the doctors by becoming a good team member; and the questions with respect to patients recovering from anesthia and maintaining outdated drugs were refuted by her. No other evidence was produced of any kind by the hospital to indicate that answers to the line of questioning addressed to her on those points were otherwise than what she answered. Finally, the finding that Marjorie Swansonwas not a good "team member" is against the clear weight of the evidence. Marjorie Swanson testified that Dan Wigart had told her that she was a good employee, and a good team member; on the day of her firing,Dan Wigart told Rev. Strom, concerning her job performance, that during the past fewmonths she had done a fine job and that they had no complaints, and that she was becoming a good teammember. Marlys Mongan, a fellow employee, testified Dan Wigart had told her that in the threemonths he thought that Marge had really come along as a good team member. But the most telling evidence is the testimony of the administratorhimself who said: "Q. During the summer of 1977, say from May, 1977, until the time of Marge Swanson's discharge, did you tell Marge Swanson that she was really a member of the team? "A. Yes, I did. "Q. Did you tell her this on more than one occasion?"A. Yes, Idid. "Q. During the summer of 1977,did you ever tell Marge Swanson that she was a good employee? "A. Yes, Idid. "Q. Did you tell Marge Swanson that shewas a good employee on more than one occasion? "A. Yes. "Q. During the summer of 1977, did you ever tell Marge Swanson that she was doing good work? "A. Yes, Idid." When viewed against the state of the record, the finding that Marjorie Swanson was not a good "team member" cannot stand. Finally, however, the findings of the District Court citing other reasons for her discharge cannot stand in the face of the overwhelming evidence that the single and only reason for her discharge was her refusal to participate in a tubal ligation. In addition to all of the events and actions by the administrator surrounding plaintiff's discharge that we have set forth above in stating the facts of this case, there is the testimony of the administrator that had she participated in the sterilization 

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### --- have been discharged. Therefore, regardless of any other reasons that may have existed for her discharge, and had they existed, it is nevertheless true that she was discharged on August 23, 1977, for her refusal to participate in a tubal ligation, a sterilization procedure. Her discharge constitutes a violation of former section 69-5223. Another factor in this connection is that in April 1977 the contract of employment of Marjorie Swanson was renewed.The renewal took place after the events which are now claimed as reasons for her dismissal. Not only was her contract renewed,but she was given a substantial raise of $1,000 (true, she had demanded more). Her renewal in that manner,without warning of the necessity of improvement, or any indication of dissatisfactionwith her past services, shows that there is little substance to the now claimed

reasons for her discharge. Where there is no substantial basis for District Court findings and if a clear and satisfactory showing is not made to support the findings, this Court will set such findings aside. Magelssen v. Mouat (1975),167 Mont. 374, 538 P.2d 1015, 1019; Kasala v. Kalispell Pee Wee Baseball League (1968),151Mont. 109, 439 P.2d 65,Judson v. Anderson (1945), 118 Mont. 106, 165 P.2d 198. Both parties cite the United States Supreme Court case of Mt. Healthy City School District Board of Education v. Doyle (1977), 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471, in support of their positions. Our examination of this case leads us to the conclusion that it bolsters Marjorie Swanson's

case. In Mt. Healthy, Doyle an untenured teacher, had previously been involved in an altercation with another teacher and in argumentswith cafeteria employees, swearing incidents with students, the making of obscene gestures, and had conveyed through a telephone call to a local radio station, the substance of a new school rule relating to the dress code of teachers. Thereafter, adopting a recommendation from the superintendent, the School Board advised respondent that he would not be rehired, citing his lack of tact in handling professional matters with specific mention of the radio station and the obscene -13-gesture incident. Doyle brought an action against the School Board for reinstatement or damages claiming that the refusal to rehire him violated his rights under the First and Fourth Amendments. The Federal District Court found that the telephone call was clearly protected under the First Amendment and that because it played a substantial part in the School Board's decision not to rehire Doyle, Doyle was entitled to reinstatement with back pay. The District Court was affirmed by the court of appeals, Doyle

v. Mt. HealeCity School District Board of Education (1975)~ 529 F.2d 524. The United States Supreme Court vacated the decision and remanded the case upon the ground that the constitutionally-protected conductmay not have played a substantialpart in the decision not to rehire the teacher and amounted to a constitutional violation justifying remedial action. The Supreme Court required that the District Court should go on to determine whether the Board of Education had shown by a preponderance of the evidence that it would have reached the same decision even in the absence of protected conduct of the teacher. 429 U.S. at 287. Applying the rationale of the Mt. Healthy decision to the case at bar, it is clear from the testimony of the administrator, Dan Wigart, that Marjorie Swansonwould not have been discharged in the absence of her refusal to participate in tuba1 ligations, which is protected conduct under former section 69-5223. There is no question in this case that the claimed reasons found by the District Court were not sufficient in August 1977 to bring about her discharge, as far as the employer was concerned; there is also no question that her refusal to participate in the sterilization did bring about her discharge. As a matter of fact, under the rationale 

### of Mt. Healthy, once Marjorie Swanson established that her discharge was brought about in -14-substantialpart by her refusal to participate in the sterilization, it then became the burden of the hospital to prove by a preponderance of the evidence that it would have discharged her without the exercise of her protected conduct. The hospital did not meet this burden under the state of the record. SWANSON'S PARTICIPATION IN PAST STERILIZATIONS -- The second issue we discuss is whether Marjorie Swanson is precluded from refusing to participate in sterilization procedures by reason of her past participation in such procedures. The hospital argues that because she had participated in the past, her refusal on August 22, 1977 to participate further demonstrated she had "flexible" religious principles and scruples. Because we are interpreting this statute for the first time and as far as we can determine,

no other court has interpreted such a statute,we have no guidelines by way of legal precedent on this argument. Former section 69-5223makes no differentiation with respect to the right of refusal and it is "unlawful to interfere or attempt to interfere with the right of the refusal authorized" by the section, Given the propensity of the human conscience to define its own boundaries and the fact that such boundaries might be widened or limited by experience, it seems natural that a person's concept of the propriety or morality of a procedure or situation might change from time to time. The right given by the statute is unqualified, irrespective of past participation. WHETHER THE RIGHT TO REFUSE IS OUTWEIGHED BY OTHER 

### --- - -- CONSIDERATIONSThe third issue that we address relates to the conclusions of law adopted by the District Court. In both of these conclusions, the District Court determined that Swanson's right to refuse to participate in sterilizationwas "outweighed" by considerations outside the scope of her conscience. The first conclusion of the District Court was that the right of refusal to participate in sterilizationwas "far outweighed"by the rights of the hospital under the circumstances of this case to maintain its standards as an effective employer and operator of the only hospital in an isolated geographic area. The District Court bases this conclusion upon its findings that substitute nurse-anesthetists available to replace Swansonmust be procured from Bonners Ferry, Idaho, a 55 mile distance or Kalispell, Montana, a 90mile distance; that such substitutes are employed at other hospitals and available only when their schedules do not conflict; that continual arrangements for substitutes are unacceptable to the hospital because of traveling and scheduling difficulties; that uncertainty results in the hospital as to when a sterilization procedure might be accomplished, that are detrimental to patients; and that the cost of substitutes is greater, and is an additional burden to the hospital and to the hospital patients. By so concluding, the District Court reads into former section 69-5223 provisos that the legislature itself did not

see fit to include. Instead, the legislature said, "All - persons shallhave the right to refuse 

# . . . to participate in sterilization 

# . . ." The statutory right is unqualified, and itmay not be qualified or limited by the District Court

on other considerations.It is noteworthy that the hospital does not attack the validity or constitutionality of section 69-5223. By accepting the statute as constitutional, the hospital must accept the statute in the way it is written, which in this case means it applies to "allpersons" irrespectiveof their geographic location and the discomfitures that might result from the exercise of the statutory right. Secondly, the District Court concludes that the right of Swanson under the conscience statute is "far outweighed" by her inability to maintain herself as an effective employee of the defendant. We assume this means that by exercising her right of refusal, the employment duties that Marjorie Swansonwould ordinarilyperform in the operating room must be handled by someone else in sterilizations and therefore she is not an "effective employee". Again, former section 69-5223 admits of no such limitation or qualification, nor may the statutory rights of Marjorie Swanson be so weighed because to do so would emasculate her statutory rights. WHETHER EMPLOYEE MUST CITE MORAL - OR RELIGIOUS BELIEFS AT THE TIME OF 

### REFUSAL---- The fourth issue relates to the finding of the District Court that on August 22, 1977,when Marjorie strator Swanson informed the admini/ that she would not participate in the tuba1 ligation, she "did not cite moral or religious beliefs as controlling her at that time". Aside from the overwhelming evidence that allparties knew at the time why she was refusing to participate, the finding is irrelevant. Under former section 69-5223, she was not required to state her reasons unless "requested by [the]hospital". No such request occurred here. Moreover, if requested, under the statuteshe could refer generally "to the grounds of religious beliefs and moral convictions". She did this the only time she was asked, during the trial before the District Court. Even upon request,under the statute, she is not required to state the precise commandment, dogma, or tenet that leads to her refusal. The intent of the legislature in so providing is manifest: a person's conscience about sterilization need not be related to any particular religion, cult, or sect, but may be a part of the person's indefinable concept of the an natural law,not easily explained inh-B-c fashion. In like manner, the finding of the Court that neither party may have been aware of the existence of the statute at the time is also irrelevant. If "ignoranceof the law is no excuse",neither is it an escape hatch. UNTIMELINESS OF THE REFUSAL -- There is but one remaining factor to discuss with respect to her refusal, that is whether the exercise of that refusal by her was untimely. This is a legitimate issue to examine because it is a ground within the Wigart letter of August 23, 1977, giving the hospital's reason for her discharge. The District Courtmade no finding or conclusion regarding this factor, except to note that the tuba1 ligation had been scheduled by a member of the medical staff on August 10, 1977 for 8:00 a.m. on August 23, 1977 and that on August 22, 1977 at approximately 10:OO a.m. Marjorie Swanson informed the hospital's Nigart of her refusal. Upon being so informed, the hospital administrator did not immediately begin to seek a nurse-anesthetist substitute, although he admits that when he was first informed, he found in her a "sense of finality". Instead he hoped to talkher out of it, apparently, by convincing her that she was not "participating" in the sterilization if she did not wield the instrument. Because of his requested delay - in her decision, she did not finally inform him until approximately 7:00 p.m. In spite of this, however, he was able to obtain the services of a nurse-anesthetist from Bonners Ferry, and the surgery went on as scheduled. Thus, there was no evidence in the record which would support a finding of untimeliness. Sterilization is an elective procedure, at least in this case. There is no showing in the evidence that the hospital was unduly prejudiced, nor the patient was endangered. The attending doctor testified over objection that in his opinion such notice of refusalwould not be timely unless given 

### -- at the commencement -- of the employment. This obviously must be rejected because itwould lead to the very recrimination that former section 69-5223 was established to prevent. In light of the record therefore,we have no occasion here for us to determine whether in a proper case an untimely notice might outweigh the statutory right of a person to refuse to participate in a sterilizationprocedure. CONCLUSIONAND DISPOSITION We find therefore, that Marjorie Swanson,having a statutory right to do so,validly refused to participate in the sterilizationprocedure. Having done so, she was entitled to the further protection of the statute that her refusal should not be a consideration in respect to staff privileges nor a basis for any discriminatory, disciplinary or other recriminatory action against her. Her firing because of her refusal is exactly the kind of recrimination that is countermanded by the conscience statute. -19-She would be entitled to reinstatement to her position provided that the term of her employment contract would have continued to the present time. However, it was Marjorie Swanson's contention that her employment by the hospital was for a period of one year, fromApril 1977 through April 1978. Since that time has passed, we cannot order that she be reinstated to her position. Under section 50-5-504(2) MCA, she is entitled "to monetary damages for injuries suffered". It is the function of the District Court to determine the amount of and kind of monetary damages to which she is entitled. Reversed and remanded to the District Court with instructions to undertake such further proceedings as are necessary to enter a judgment in favor of Marjorie Swanson and to determine the damages she has sustained.

JusticeMr. JusticeJohn Conway Harrison dissenting: For purposes of thisdissent, I willdiscuss the issues inthe order presented by appellant. I do notquarrelwith plaintiff's assertion that, under Montana law, allpersons have the right torefuse toparticipate ina sterilizationbecause of religious beliefs or moral convictions. However, section 69-5223(2) and (3)

## , R.C.M. 1947, now section 50-5-504 and -505 MCA, isinvokable only if one's refusal toparticipate is, inthe statutory language, "because of religious beliefs ormoral convictions." Here, there are a number of inconsistencies in plaintiff's position. While it istrue thatone need not hold religious beliefs ormoral convictions for a specifiedperiod of time before enjoying theprotection of the statute, inthese circumstances relianceon the statute strikesa discordant note. For the sixyears prior toher termination, plaintiff participated in20 sterilizations without objection, including six such operations intheyear prior tothese events. Also, being greatlyupset, as plaintiff testified shewasby theAugust 19operation, is a physical and emotional reaction, but not a religious belief ora moral conviction, Assuming arguendo, that a plaintiff's refusal toparticipate isgrounded inreligious beliefs ormoral convictions, plaintiff testified atthehearing so as tobelie that assumption. She testified that shedoes not have any objection toadministering anesthesia foran ordinary D&C. This merits some elaboration inlightof plaintiff's attempt todiscounther own testimony inthisregard. Her testimony was that shewould have no objection toadministering anesthesia for an ordinary D&C. Inher replybrief, she accuses respondent of "misunderstanding" the nature and uses of a D&Cand states that the use of a D&C for a therapeutic abortion is "relativelyminor" compared to other ordinary uses of D&C. Respondent hospital asserts that a D&C, asperformed at thathospital, is a therapeutic abortion. Plaintiff had given the anesthetic inother D&C1swhich apparentlywere therapeutic abortions and which she, as a medical practitioner, understood tobe just that. Plaintiff testified shewould not object togiving the anesthetic foran ordinary D&C, which certainlymay be therapeutic abortion. If she were upset by the D&C, then her refusal toparticipate inany more D&C1swould be understandable; but that apparently isnot her position. Another baffling inconsistency isplaintiff's refusal toparticipate inone surgicalprocedure, sterilization, based on experience with a totally different surgical procedure, dilation and curettage. Itwould be logically consistent forplaintiff torefuse toparticipate inother D&C1s,but her refusal toparticipate ina totally different surgicalprocedure: makes asmuch sense as saying, "Because I had a bad experience with a tonsilectomy, I willnot do any more appendectomies." Plaintiff responds thatone need not hold hisbeliefs

or convictions for a particular period of timebefore realizing the protection of the statute, and thatone need not be aware of the existenceof the statutetoenjoy itsprotection. Both contentions aretrue, but they do notmeet the prior problem--was she relying on the statuteatthe timeof these events, oris the reliance an after-the-fact

means togetting reinstated?Plaintiff's second argument isimproperly advanced. Respondent does not contest the constitutionalityof the statuteinquestion, and the issuewas not properly preserved inthe lower courtproceedings. To dealwith the third and fourth arguments, a recitationof certainof the testimony presented during the hearing isnecessary. The DistrictCourt determined that "Plaintiff had been an employee of questionable value toDefendant", offering the following reasons in support of its conclusion. Reference wasmade toan incident during which plaintiff, who negotiated her own salarywith thehospital administrator, would not talk with him for "some period of time" (actually, one day) after being refused the substantial raise she had requested. In another episode, plaintiff questioned a deliverymade by the hospital laboratory personnel. In that incident, plaintiff became embroiled inan argument with one of the labpersonnel. Another incident towhich the DistrictCourt alludes is thatinwhich plaintiff refused toadminister anesthetics for a tonsilectomy when the patient had an elevated temperature. Plaintiff registered her complaint withWigart, the hospital administrator, who concurred inher decision, testifying that "in thatparticular instance the safestapproach was thebest." The DistrictCourt also found that "itwas constantly necessary for the administrator toassure plaintiff she, indeed, was a 'teammember' capable of holding up her end of the hospitalwork." The testimony on thispoint isconflicting. Plaintiff testified that the hospital administrator told her shewas doing a good job and that shewas a good teammember, particularly during the threemonths before her termination. The hospital administrator cor-roborated thattestimony. Hisversion, however, included an explanation that he did sotogive positive reinforcement to theplaintiff, whom hebelieved was not working aswell as he said shewas. r is explanationwas tothe effect thathe

was using "this team concept positive enforcement with her toovercome [certain]difficulties" shewas having atthe hospital. Heacknowledges that he toldplaintiff a number of timesthat shewas a good employee and 

### a good team member and does not claim thathe offered criticismof her work inconjunction with thepraise. It seems fair, therefore, that she could take thatpraise atfacevalue. After the fact, however, Wigart ineffect claims thathe wasjust saying that toencourage plaintiff's performance tocome in linewith the praisewhich shewas given, apparently prematurely

# . Aspart of therationale for the same finding of fact, the DistrictCourt determined that "thedifficultiesof Plaintiff's relationship with Defendant can be characterized

asmaking excessive demands, difficultieswith other employees, failuretorecognize authority, refusal to stay with patientsrecovering from anesthesia and maintaining outdated drugs.'' Making excessive demands refers tothe incident inwhich plaintiff requested an inordinately high pay raise. Difficulties with other employees apparently refers toher refusal toadminister an anesthetic inthe tonsilectomy referred toabove and inanother operation in which the patient had a slow pulse. The failure torecognize authority seemingly refers tothe incident inwhich the laboratory did not deliver theblood which thedoctor had ordered. A refusal to staywith patients recovering from anesthesiarefers apparently toplaintiff's questioning ofthe hospitalprocedure whereby one other than a qualified medical practitioner, a registered nurse, forexample, would staywith patients recovering from surgery. The reference tomaintaining out-dated drugs ispuzzling, as the record is devoid of any reference tothis. The DistrictCourt determined thatplaintiff's refusal toparticipate inthe sterilization scheduled forAugust 23, 1977, described by Wigart as "the strawthat broke the camel's back," was "only the lastof many problems involving Plaintiff, and while itwas the incidentwhich gave rise to this controversy, itwas not the primary moving cause of discharge." This finding invites discussion of the legal principles articulatedby theUnited States Supreme Court in Mt. Healthy CityBoard of Ed. v. Doyle (1977), 429 U.S. 274, 97 S.Ct. 568, 50 L Ed 2d 471. Although Mt. Healthy involved a controversy surrounding the refusal torehire an untenured teacher, the test articulated there isapplicable tothe instant case. The test is designed tobe applied inthose circumstances inwhich an employee, who has not been rehired or inpractical effect discharged, claimsthat hisdischargewas unlawful because the conduct which precipitated itwas constitutionally protected. The issueon which the Court focused iswhether,

even if itwere the case that the employer legally could have dismissed the employee had the one precipitating incident never come toits attention, "the factthat the protected conduct played a 'substantial part' inthe actual decision [toterminate] would necessarily amount toa constitutionalviolationjustifying remedial action." 429 U.S. at285. The Court concluded that itwould not. The rationalewas:"A rule of causationwhich focuses solely on whether protected conduct played a part, 'substantial' orotherwise, ina decision not to rehire, could place an employee ina better position asa result of the exerciseof constitutionally protected conduct than he would have occupied had he done nothing. 

# . . A borderlineormarginal candidate should not have the employment question resolved againsthim because of constitutionallyprotected conduct. But that same candidate ought not tobe able, by engaging insuch conduct, toprevent his employer from assessing hisperformance record and reaching a decision not torehire on the basis of thatrecord, simply because theprotected conduct makes the employer more certain of the correctnessof itsdecision." 429 U.S. at285-86. After announcing inpassing that an employer would not be precluded from attempting toprove thatquite apart from theprotected conduct, the employee's record was such that he would not have been rehired inany event, 429 U.S. at 286, the Court announced a test, "one which likewise protects againstthe invasion of constitutional rightswithout commanding undesirable consequences not necessary tothe

assurance of thoserights." 429 U.S. at287. The burden initiallyisplaced upon the complaining employee to show thathis conduct wasprotected and that the conduct was a "substantial factor," or a "motivating factor," inthe decision toterminate his employment. Once the employee carries thisburden, however, it is incumbent upon the employer to show by a preponderance of the evidence that it would have reached the samedecision even inthe absence of theprotected conduct. 429 U.S. at287. It appears, then, thatif a plaintiff fails toprove both that hisconductwas constitutionally (or as inthis case, statutorily) protected and that such conduct was a motivating factor inthe decision not torehire (oras in this case, toterminate) the inquiry is then ended. Theburden would not shift, because itwould not have been carried by theplaintiff inthe firstinstance. Therefore, the firstdetermination must be whether plaintiff's refusal toparticipate inthe sterilizationwas infact statutorily protected. The second half of plaintiff's burden has been carried. It isclearby the admission of the hospital administrator himself that the refusalwas a motivating factor inthe decision toterminate plaintiff. Note, however, itwas not the refusal

### per - sewhich was astroublesome as the timing of the refusal. Plaintiff allowed less than 24 hours "lead time" for the hospital administrator tofind an anesthetist who could substituteforher. That task was no easy one, given the geographical isolation and paucity of qualified practitioners intheLibby area. Because of fortunate circumstances, theoperation did go ahead as scheduled, but that appeared tobe a matter of sheer dumb-and-blind luck, rather than what reasonably could have been expected. To return tothatinitial inquiry: did plaintiff prove thather conduct was constitutionallyprotected? Here again

we must examine the inconsistencies inthe plaintiff's position. She had participated in 20 sterilizations inthe sixyears prior toher termination; sixof those operations were performed within the lastyear of her tenure. Being greatly upset, as plaintiff assuredly was, is, asrespondent characterized it, a physical and emotional reaction, but is not a religious belief ormoral conviction. One might reasonably argue that the reactionwould not have been forthcoming had itnot been for a religious belief ormoral conviction held by plaintiff, forhowever shorta time. However, there isplaintiff's testimony during thehearingthat shewould participate inordinary D&CtsIeven though the operation which caused her stress was itself a D&C. There is alsothe logical leapwhich one must make incorrelating a refusal toassistina sterilization toan upsetting experience ina totally different surgicalprocedure, the therapeuticD&C. It is true that theDistrictCourt made no specificfinding astowhether plaintiff's conduct

was statutorilyprotected, but a fair inference from the findings as a whole and the conclusions drawn therefrom is that the court found itwas not. If it may be inferred thatthe DistrictCourt found plaintiff's conduct was not statutorilyprotected, then the determinationsmade with respect tothe other reasons for plaintiff's termination are unnecessary and irrelevant, as plaintiff contends. But given that the employer has the right toput on proof demonstrating that the plaintiff was terminated forpermissible reasons, then findingswith respect tothat evidence areappropriatelymade. The other justifications forplaintiff's termination advanced by Wigart are somewhat tinny; they do not ring true. The reason which appears soundest is the one involved inthis controversy--plaintiff's announcement of her intention not toparticipatewithin 24 hours of the scheduled operation. There isno doubt thiswas disruptive. The patient had been "prepped" and wasphysically and emotionally ready for theoperation. Had plaintiff made her objections known on the 19thof August, giving the hospital administrator a longer and more reasonable period of timeinwhich tosecure a substitute, itwould be an easymatter toconclude thather termination was unlawful. Given that she waited until the proverbial eleventh hour toannounce herintention not toparticipate, however, goes to strengthening respondent's case. This, then, isthaton which the decision turns. The DistrictCourt, with its superior advantage toobserve the demeanor of thewitnesses, concluded that the hospital had ample justification independent of thisparticular event for terminating plaintiff's employment. It implicitly found that plaintiff's conduct was not statutorilyprotected. It is axiomatic that, where there isa conflict inthe evidence, thisCourt willdefer tothe findings of the trial court, which are presumed tobe correct if supported by substantial credibleevidence. Ina nonjury trial, the findings of the DistrictCourtwillnot be reversed on appeal, unless there is a clear preponderance of evidence against those findings. See, e.g., Montana Farm ServiceCo. v. Marquart (1978), Mont. 

## , 578 P.2d 315, 35 St.Rep. 631, and cases cited therein. This Court may consider onlywhether substantial credibleevidence supports the findings of factand conclusions of lawmade by the District Court. See, e.g., Kartes

v. Kartes (1977), Mont. 

### - 

## , 573 P.2d 191. In this

case I believe that itdoes and would affirm thejudgment.Mr. Chief Justice Frank I. Haswell dissenting.

I concur in the foregoing dissent of Mr. Justice Harrison. Iwould add that in my view, the real issue in this case is whether plaintiff's refusal to participate in the operation on "conscience" grounds was bona fide or sham. Although the District Court did not make an express finding

on this issue, its findings implied the latter. Such implied finding is supported by substantial, though conflicting 

### > evidence and warrants affirmance of the District Court judgment inmy opinion.



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............................. Chief Justice