97-165

No. 97-165

IN THE SUPREME COURT OF THE STATE OF MONTANA

1998 MT 13

DONNA REEVES,

Plaintiff and Appellant,

v.

DAIRY QUEEN, INC., and

BARBER FOOD SERVICE CO., INC.,

Defendants and Respondents.

APPEAL FROM: District Court of the Eleventh Judicial District,

In and for the County of Flathead,

The Honorable Ted O. Lympus, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Scott L. Anderson, Dean D. Chisholm; Kaplan Law Offices,

Columbia Falls, Montana

For Respondents:

Randall A. Snyder; Snyder Law Office, Bigfork, Montana

For Amici Curiae:

Timothy C. Kelly, Special Assistant Attorney General, Chris

Fotopulos, Attorney at Law, Helena, Montana (for Montana Human

Rights Commission)

Mary Gallagher, Attorney at Law, Montana Advocacy Program,

Missoula, Montana

Submitted on Briefs: December 11, 1997

Decided: January 30, 1998

Filed:

__________________________________________

Clerk

Justice W. William Leaphart delivered the Opinion of the Court.

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¶1 Appellant Donna Reeves (Reeves) appeals from the order of the Eleventh Judicial

District Court, Flathead County, granting summary judgment for Respondents Dairy

Queen, Inc. (Dairy Queen) and Barber Food Service Co., Inc. We reverse. 

¶2 Reeves raises the following issues: 

¶3 1. Did the District Court err in granting summary judgment on Reeves' claim that

she was terminated in violation of § 49-4-101, MCA?

¶4 2. Did the District Court err in granting summary judgment on Reeves' claim that

Dairy Queen failed to provide reasonable accommodation?

 Factual and Procedural Background

¶5 Reeves was hired by Dairy Queen on January 1, 1990, to work in its Columbia

Falls restaurant. She was hired and supervised by Bill Barber (Barber), general manager

and majority owner of Barber Food Service Co., Inc., which owns Dairy Queen. Reeves

worked for Dairy Queen for five years and was regarded as an excellent employee. She

received pay raises and was eventually promoted to kitchen manager.

¶6 In the early 1980s, Reeves was diagnosed with high blood pressure. As a result

of her high blood pressure, Reeves suffers severe headaches, shortness of breath, heat

sensitivity, and flushing. During March 1994, two of Reeves co-workers informed

Barber that Reeves had experienced dizziness while climbing atop a table to reach an item

in the kitchen. Barber had also noticed that at times, after performing simple tasks,

Reeves became out of breath and flushed. Barber stated in his deposition that he "could

tell she was not doing well health-wise." 

¶7 On April 19, 1994, Dairy Queen fired Reeves. A few months later, Barber gave

Reeves the following reference letter:

 This April (1994) we had to terminate Donna Reeves employment at

 the Columbia Falls Dairy Queen due to health reasons. Donna worked here

 for 5+ years and was an excellent employee, but we felt that it was for her

 own well being that we let her go. Without going into great detail, it was

 a combination of having high blood pressure and working in a position as

 a fast order cook working under conditions of pressure, stress and heat. 

 We could see her health deteriorating and I decided this would be best for

 Donna.

 . . . . 

Barber never spoke to Reeves about her medical condition or discussed the possibility of

treatment for her illness or other accommodations. Barber made no attempt to speak to

Reeves' doctor, review her medical records, or investigate her medical condition. 

¶8 On October 14, 1994, Reeves filed a complaint with the Montana Human Rights

Commission (MHRC), alleging that she was discriminated against because of high blood

pressure and other health problems. The MHRC issued a "right to sue letter," and

Reeves filed suit in the District Court. In her complaint, Reeves alleged that Dairy

Queen had fired her in violation of the Montana Human Rights Act, §§ 49-1-101 through

49-4-511, MCA, (the Act) and the Wrongful Discharge from Employment Act, §§ 39-2-

901 through -915, MCA. Dairy Queen moved to dismiss the wrongful discharge claim

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and for summary judgment on the disability discrimination claim.

¶9 On March 10, 1997, the District Court issued an order holding that Reeves'

wrongful discharge claim was barred by the one-year statute of limitations. Reeves does

not appeal from that decision. The District Court also granted summary judgment on the

discrimination claim. The court held that, as a person suffering from high blood

pressure, Reeves did not qualify as a member of a protected class under the Act. The

court found that Dairy Queen had a legitimate, business reason for firing Reeves -- that

Reeves' high blood pressure had caused her work performance to deteriorate and had

caused her to become a serious safety threat to herself and co-workers. The District

Court also held that Dairy Queen could not reasonably have accommodated Reeves. 

 Discussion

 I. Standard of Proof

¶10 Reeves asks this Court to adopt a new standard of proof for disability

discrimination cases in which the claim may be proven through direct, rather than

circumstantial, evidence. Reeves, joined by amici curiae Montana Advocacy Program

and the MHRC, argues that the test currently employed by this Court is unnecessarily

complicated in cases such as this, where the parties do not dispute the reason that the

plaintiff was fired, but only whether such action constitutes illegal discrimination.

 

¶11 The parties state that this Court's decision in Hafner v. Conoco, Inc. (1994), 268

Mont. 396, 886 P.2d 947, sets forth the current law of disability discrimination in

Montana. In Hafner, the plaintiff claimed that Conoco had violated the Act by

discriminating against him based on his disability, an arthritic knee. Hafner, 886 P.2d

at 950. The parties filed cross-motions for summary judgment, and the district court

granted summary judgment in favor of Conoco. Hafner, 886 P.2d at 950.

¶12 This Court applied the three-step proof mechanism first articulated by the Supreme

Court in McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 93 S.Ct. 1817, 36

L.Ed.2d 668. Hafner, 886 P.2d at 950. Under this test, a person alleging discrimination

must first demonstrate a prima facie case of discrimination. McDonnell Douglas, 411

U.S. at 802. If the plaintiff proves a prima facie case by a preponderance of evidence,

the burden shifts to the employer to rebut the presumption of discrimination by producing

a legitimate, non-discriminatory reason for the action. McDonnell Douglas, 411 U.S. at

802. Lastly, the plaintiff may prove that the employer's proffered reason is only pretext

for discrimination; that is, that the reason is untrue and that the real reason is

discriminatory. McDonnell Douglas, 411 U.S. at 804. Applying the McDonnell

Douglas test, this Court held that the district court erred in finding that Hafner had failed

to establish a prima facie case and that though Conoco had set forth a legitimate nondiscriminatory reason for not hiring Hafner, Hafner had established a genuine issue of

material fact regarding whether Conoco's reason was pretext. Hafner, 886 P.2d at 953. 

¶13 Since Hafner, this Court has decided Heiat v. Eastern Montana College (1996),

275 Mont. 322, 912 P.2d 787, in which we developed a different summary judgment

standard of proof to be used in sex discrimination cases brought under Title VII. We

noted that when a motion for summary judgment is made by the defendant in a

discrimination case, the McDonnell Douglas order of proof and shifting of burdens places

the nonmoving plaintiff "in the peculiar position of having to prove her case to survive

the defendant's motion." Heiat, 912 P.2d at 792-93. Thus, we set forth what we

believed to be a more appropriate analysis: (1) the plaintiff must allege a prima facie case

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of discrimination in the complaint; (2) the employer seeking summary judgment must then

come forward with a legitimate, nondiscriminatory reason for its action; and (3) if the

employer sets forth such a reason, the plaintiff must then produce evidence that

establishes a prima facie case, as well as evidence which raises an inference that the

employer's proffered reason is pretextual. Heiat, 912 P.2d at 793. 

¶14 Although both parties cited Heiat, neither applied the Heiat summary judgment

analysis to the facts of this case. Rather, both stated that Hafner represents the current

law of disability discrimination in Montana, apparently assuming that the Heiat analysis

is confined to cases brought under Title VII. To the contrary, the summary judgment

burdens of proof discussed in Heiat apply in all types of discrimination cases regardless

of whether the claims are based on federal or state law. 

¶15 Having clarified the confusion arising from Hafner and Heiat, we now confine the

three-part summary judgment test set forth in Heiat to those cases in which discriminatory

intent can only be proven by circumstantial evidence (cases that require the McDonnell

Douglas shifting burden analysis at trial). In cases involving direct evidence, such as this

one, we adopt the following test used by an increasing number of federal courts. 

¶16 Direct evidence cases are ones in which the parties do not dispute the reason for

the employer's action, but only whether such action is illegal discrimination. In such

cases, several courts have found that the McDonnell Douglas test is inappropriate and

unduly confusing:

 [T]he [McDonnell Douglas] test is inappropriate for cases in which the

 employer acknowledges that it relied upon the plaintiff's handicap in

 making its employment decision. The McDonnell Douglas burden shifting

 approach is unnecessary because the issue of the employer's intent, the

 issue for which McDonnell Douglas was designed, has been admitted by the

 defendant in such cases, and the plaintiff has direct evidence of

 discrimination on the basis of his or her disability. Assuming that the

 plaintiff in such a case is in fact statutorily "disabled," the determinative

 disputed issue in the case will not be the employer's "intent," but instead

 in most cases will be whether the employee is "otherwise qualified," with

 or without reasonable accommodation, to perform the job, a factual dispute

 capable of resolution through traditional methods of proof.

Monette v. Electronic Data Systems Corp. (6th Cir. 1996), 90 F.3d 1173, 1182 (citations

omitted); see also Healey v. Southwood Psychiatric Hosp. (3rd Cir. 1996), 78 F.3d 128;

E.E.O.C. v. Alton Packaging Corp. (11th Cir. 1990), 901 F.2d 920. Thus, these courts

have adopted new standards of proof in such cases for both summary judgment and trial. 

¶17 At trial, if the plaintiff has established a prima facie case of unlawful

discrimination with direct evidence, the employer must prove by a preponderance of the

evidence that an unlawful motive played no role in the challenged action or that the direct

evidence of discrimination is not credible and is unworthy of belief. See E.E.O.C., 901

F.2d at 925; Rule 24.9.610, ARM. Federal courts have also begun applying the

traditional summary judgment principles to direct evidence discrimination cases, thus

requiring the moving party to establish that no material issues of fact exist and that the

movant is entitled to judgment as a matter of law. Healey, 78 F.3d at 130; Rule 56,

Fed.R.Civ.P. 

¶18 The Montana Administrative Rules has incorporated this simpler method of proof

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for direct evidence discrimination cases. Rule 24.9.610(5), ARM. We agree that it is

unduly confusing to apply the three-step McDonnell Douglas test, or the Heiat analysis

for summary judgment, in cases in which the plaintiff presents direct evidence of

discrimination. When both parties agree on the employer's articulated reason for firing

the plaintiff and the only contested issue is whether the employer's action is illegal, it is

illogical to require the plaintiff to prove that the articulated reason is pretextual. Thus,

in direct evidence discrimination cases, we adopt the standard set forth in Rule

24.9.610(5), ARM, as the correct burden of proof at trial, and we employ the traditional

proof requirements in motions for summary judgment. Accordingly, in a motion for

summary judgment brought by an employer, the employer has the burden of showing that

no issues of material fact remain and that the plaintiff cannot prove a prima facie case of

discrimination as a matter of law. 

¶19 In this case, the District Court found that "[a] discussion of pretext here is largely

superfluous as there is no genuine dispute as to the grounds for the discharge." Barber's

letter stated quite succinctly the reasons why Dairy Queen chose to fire Reeves: "Without

going into great detail, it was a combination of having high blood pressure and working

in a position as a fast order cook working under conditions of pressure, stress and heat. 

We could see her health deteriorating and I decided this would be best for Donna." 

Because Reeves attempts to prove her claim for discrimination with direct evidence, we

apply the above-stated direct evidence standards of proof in reviewing the District Court's

grant of summary judgment. We review a district court's grant of summary judgment

de novo. Mead v. M.S.B., Inc. (1994), 264 Mont. 465, 470, 872 P.2d 782, 785. 

 II. Application of the Standard to Reeves' Claims

¶20 A. Did the District Court err in granting summary judgment as to Reeves' claim

that she was terminated in violation of § 49-4-101, MCA?

¶21 To prevail on its motion for summary judgment, Dairy Queen has the burden of

showing that no issues of material fact remain and that Reeves cannot prove a prima facie

case of discrimination as a matter of law. Under the Act, 

 [i]t is unlawful to discriminate, in hiring or employment, against a person

 because of the person's physical disability. There is no discrimination when

 the nature or extent of the disability reasonably precludes the performance

 of the particular employment or when the particular employment may

 subject the person with a disability or that person's fellow employees to

 physical harm. 

Section 49-4-101, MCA. Thus, to establish a prima facie case of discrimination, Reeves

must show: (1) she belonged to a protected class; (2) she was otherwise qualified for

continued employment and her employment did not subject her or others to physical

harm; and (3) Dairy Queen denied her continued employment because of her disability. 

See Hafner, 886 P.2d at 950; §§ 49-4-101 and 49-2-303(1)(a), MCA. 

 1. Member of a Protected Class

¶22 At the time of her discharge, Reeves suffered from high blood pressure and, as a

result, experienced spells of dizziness, shortness of breath, bloodshot eyes, and flushing. 

To prove a prima facie case of discrimination, Reeves must show that because she suffers

from high blood pressure, she is disabled and thus entitled to the protections of the Act. 

Hafner, 886 P.2d at 950. The District Court found that because Montana law has not

established high blood pressure as a disability, Reeves is not entitled to protection under

the Act. However, Reeves and the amici curiae argue that whether someone is disabled

is an issue of fact that must be determined on a case-by-case basis. 

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¶23 Under the Act, a physical disability is defined as either "a physical or mental

impairment that substantially limits one or more of a person's major life activities" or "a

condition regarded as such an impairment." Section 49-2-101(19)(a), MCA. Reeves

argues that she is disabled under either definition. Because the Act is patterned after the

federal Rehabilitation Act of 1973, this Court often looks to federal case law in

interpreting its provisions. Hafner, 886 P.2d at 950-51; McCann v. Trustees, Dodson

School Dist. (1991), 249 Mont. 362, 364, 816 P.2d 435, 437. Any physiological

disorder or condition affecting the respiratory or cardiovascular systems is among the

types of physical impairments included in federal disability discrimination laws. 29

C.F.R. § 1630.2(h)(1). Neither party disputes that Reeves suffers from high blood

pressure, a condition affecting her cardiovascular system, and that therefore she has a

physical impairment under the Act. 

¶24 A physical impairment is only considered a disability under the Act if the condition

"substantially limits one or more of a person's major life activities." Section 49-2-

101(19)(a)(i), MCA. Federal regulation defines "major life activities" as "functions such

as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking,

breathing, learning, and working," and this list is not exhaustive. 29 C.F.R. §

1630.2(h)(2)(i). For example, sitting, standing, lifting, and reaching may also be

considered major life activities. S. Rep. No. 116, at 21 (1989).

¶25 Under federal law, the determination of whether an individual is substantially

limited in a major life activity is one that must be made on a case-by-case basis. As

noted in the Equal Employment Opportunity Commission (EEOC) Interpretive Guidelines:

 The ADA [Americans with Disabilities Act] and this part, like the

 Rehabilitation Act of 1973, do not attempt a "laundry list" of impairments

 that are "disabilities." The determination of whether an individual has a

 disability is not necessarily based on the name or diagnosis of the

 impairment the person has, but rather on the effect of that impairment on

 the life of the individual. 

EEOC Interpretive Guidelines, 29 C.F.R. § 1630.2(j), App. at B-9 (1995). Because "the

same types of impairments often vary in severity and often restrict different people to

different degrees or in different ways," consideration of factors such as the nature,

severity, expected duration, and permanent or long-term impact of the impairment is

required. EEOC Interpretive Guidelines, 29 C.F.R. § 1630.2(j) (1995); 29 C.F.R. §

1630.2(j)(2).

¶26 We agree with Reeves that determining whether a person is disabled necessarily requires

a factual determination about whether, and to what extent, a person is limited in his or

her performance of a major life activity. The District Court held that because "[n]o

statute, administrative rule, or any precedent within Montana has previously established

high blood pressure as a physical disability," Reeves is not disabled. However, a person

is not disabled simply because the condition from which he or she suffers is found on a

judicially or legislatively created list of disabilities. Medical advances, the discovery of

new medical conditions and the improved understanding of old ones, renders the

formation of such a list of disabilities impracticable, if not impossible. To require all

diseases to be labeled as disabling or nondisabling would deny to persons with newly

discovered or misunderstood diseases the protections provided by the Act until a court

or legislature could reach the issue. 

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¶27 Further, a physical impairment that substantially limits one person's major life

activities may not so limit another person suffering from the same impairment. For

example, high blood pressure (hypertension) can be diagnosed as slightly, moderately,

or seriously elevated. In some cases, high blood pressure can be controlled by

medication; however, at its most severe, it can be a life-threatening disease. To include

or exclude high blood pressure in the definition of disability as a matter of law, without

consideration of its impact on the individual, either includes in the definition the very

large number of people who suffer from only slightly elevated blood pressure or excludes

persons who suffer from the disease in its most severe form. 

¶28 Thus, we hold that whether a person is disabled under the Act cannot be decided

as a matter of law, but rather requires a factual determination to be made on a case-bycase basis. In this case, there is ample evidence to create an issue of fact regarding

whether Reeves is disabled. The record contains evidence that Reeves is limited in her

ability to walk, perform manual tasks, breathe, and work. Co-workers have testified that

Reeves nearly fainted in the kitchen while attempting to grasp an item out of her reach. 

Barber testified that Reeves could not do "much work" without becoming flushed and outof-breath. Reeves suffers from dizziness, ear-ringing, and severe headaches. 

 

¶29 Further, this Court has held that under the ADA, "a person is substantially limited

if he or she experiences difficulties in securing, retaining, or advancing in employment." 

Martinell v. Montana Power Co. (1994), 268 Mont. 292, 310, 886 P.2d 421, 432. 

Because of Reeves' high blood pressure, Dairy Queen "felt that it was for her own well

being that we let her go." Obviously, this is proof that Reeves' condition made it

difficult for her to retain her 5+ year employment with Dairy Queen. 

 

¶30 A person is entitled to the protections of the Act not only if he or she suffers from

a substantially limiting impairment, but also if he or she suffers from "a condition

regarded as such an impairment." Section 49-2-101(19)(a)(iii), MCA. Congress added

the "regarded as" provision to the ADA to recognize that individuals have historically

suffered discrimination "resulting from stereotypic assumptions not truly indicative of the

individual ability of such individuals to participate in, and contribute to, society." 42

U.S.C. § 12101(a)(7). High blood pressure is an example of such a perceived disability:

 [S]uppose that an employee has controlled high blood pressure that is not

 substantially limiting. If an employer reassigns the individual to less

 strenuous work because of unsubstantiated fears that the individual will

 suffer a heart attack if he or she continues to perform strenuous work, the

 employer would be regarding the individual as disabled.

EEOC Interpretive Guidelines, 29 C.F.R. § 1630.2(l) (1995).

¶31 In his letter, Barber acknowledged that "it was a combination of having high blood

pressure and working in a position as a fast order cook working under conditions of

pressure, stress and heat" that caused Dairy Queen to fire Reeves. This letter alone is

enough to create a fact issue as to whether Dairy Queen regarded Reeves as disabled. 

Thus, we determine that issues of fact exist regarding whether Reeves is disabled or was

regarded as such by Dairy Queen.

¶32 2. Qualified for Continued Employment

¶33 To prove her prima facie case, Reeves must establish that she was otherwise

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qualified for continued employment. The District Court found that "her symptoms of

high blood pressure (not the fact of high blood pressure itself) affected [Reeves'] work

performance and constituted a clear and present danger to herself and others." We first

note that the distinction made by the District Court between the symptoms of high blood

pressure and the disease itself is false. Symptoms are merely the outward and subjective

signs of an impairment, Webster's Ninth New Collegiate Dictionary 1196 (9th ed.

1986), and it is no more legal to discriminate against one who exhibits the symptoms of

a disease than to discriminate against one who suffers from the disease itself.

¶34 The testimony in the record is that in her 5« years at Dairy Queen, Reeves was

regarded as an "excellent" employee. She was never reprimanded, and her co-workers

testified that she was good at her job. Dairy Queen presented no evidence that Reeves

could not perform any aspect of her job as kitchen manager. Thus, we determine that

whether Reeves is otherwise qualified is still a disputed issue of fact.

¶35 Under the Act, a disabled employee may be discharged "when the particular

employment may subject the person with a disability or that person's fellow employees

to physical harm." Section 49-4-101, MCA. Here, the finding that Reeves' continued

employment with Dairy Queen increased the risk of harm to her and to others appears

to be based primarily on one incident in which Reeves almost fainted and fell from a

countertop. Barber never attempted to talk with Reeves or her doctor about the

seriousness of her condition specifically or to learn the effects of high blood pressure

generally. Rather, Dairy Queen apparently fired Reeves based on a misdirected and

uninformed conclusion that it would be "best for Donna." As amicus curiae MHRC

noted, "[t]he benign or well-intended violation of another's civil rights can be as

successful in denying equal opportunities and full participation for the disabled . . . as an

act born of malice or prejudice. Misguided concern may explain why Reeves lost her

job, but it does not provide a legal justification for the defendant's actions." We hold

that Dairy Queen has not met its burden of showing that no material issues of fact remain

regarding whether Reeves was otherwise qualified for continued employment.

¶36 3. Disability Caused Termination

¶37 Under § 49-2-303, MCA, it is an unlawful discriminatory practice for an employer

to refuse employment to a person because of physical disability. Proof of this element

includes "proof that there is a causal connection between adverse action by the [employer]

and the [employee's] membership in a protected class." Rule 24.9.610(2)(b)(v), ARM. 

The District Court found that Reeves offered no facts to suggest that Dairy Queen's

motive was to discriminate against Reeves. As stated in section I, the parties do not

dispute that Dairy Queen fired Reeves because of her high blood pressure. However, we

hold that the District Court erred in holding, as a matter of law, that this action was not

illegal discrimination.

¶38 Therefore, we hold that the District Court erred in granting summary judgment as

to Reeves' claim that she was discriminated against in violation of § 49-4-101, MCA.

¶39 B. Did the District Court err in granting summary judgment on Reeves' claim that

Dairy Queen failed to provide reasonable accommodation? 

¶40 Reeves also claims that the District Court erred in granting summary judgment as

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to her claim that Dairy Queen failed to provide reasonable accommodations. Montana

law requires employers to reasonably accommodate their employees if the employees are

disabled or are regarded as such, unless the accommodation would impose an undue

hardship on the employer or endanger the health and safety of any person. Section 49-2-

102(19)(b), MCA. 

¶41 The District Court found that it was undisputed that Dairy Queen is a fast food

restaurant with hot equipment that cannot be moved, changed, or made safe. The court 

found that Reeves' job required her to work in this environment and stated:

 [Dairy Queen] had no other position or duty for [Reeves] to occupy or

 assume. It is physically impossible to make the Columbia Falls Dairy

 Queen kitchen into something that it is not. For anyone experiencing

 symptoms of high blood pressure, this kitchen is an inherently dangerous

 place in which to work and cannot be made more safe. . . . Here,

 accommodation isn't merely an undue hardship upon employer, it is a

 physical impossibility. 

¶42 However, Reeves argues that Dairy Queen never seriously contemplated any

accommodation and that Dairy Queen could, in fact, have accommodated her. Reeves

argues further that if Dairy Queen believed that accommodation could not be made

without undue hardship or danger, it had a duty to investigate. We agree. Montana

regulations provide:

 [I]ndependent assessment of the risk of substantial harm is evaluation by the

 employer of the probability and severity of potential injury in the

 circumstances, taking into account all relevant information regarding the

 work and medical history of the person with the disability before taking the

 adverse employment action in question. 

Rule 24.9.606(8), ARM. Dairy Queen never spoke with Reeves or her physician about

her condition or what could be done to ensure her safety. In fact, Reeves' doctor testified

that when controlled with proper medication, Reeves' condition posed no threat at all. 

Further, in his deposition, Barber testified to the following:

 Q: So it [Reeves' high blood pressure] wouldn't have been any problem if

 she would have taken her medication?

 A: No, it would not have been a problem.

 Q: Did you offer that opportunity? Did you sit down with her and say

 Donna, I need you to take your medication or else you're going to get

 terminated?

 A: No. . . .

Clearly, this testimony presents an issue of fact as to whether a reasonable

accommodation was available.

¶43 Dairy Queen argues that it did not attempt to accommodate Reeves because she did

not request any accommodation. While the burden of requesting accommodation is

generally on the employee, in this case, Reeves was not given the opportunity to make

such a request. She was not informed until she was fired that her disability posed a threat

to her continued employment at Dairy Queen, at which point it was too late to request

accommodation. We hold that the District Court erred in granting summary judgment

on Reeves' claim that Dairy Queen failed to provide reasonable accommodations.

 Conclusion

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¶44 Donna Reeves' five-year employment with Dairy Queen was brought to an abrupt

halt when Dairy Queen determined, because Reeves suffered from high blood pressure,

that it would be best for everyone if she was let go. We hold that whether Reeves is

entitled to the protections of the Montana Human Rights Act, whether her continued

employment posed a direct threat to her health and safety and to that of others, and

whether Dairy Queen could have done anything to accommodate her are issues of fact

that Reeves is entitled to have resolved at trial.

¶45 Based on the foregoing, we reverse the decision of the District Court and remand

for further proceedings consistent with this Opinion.

 /S/ W. WILLIAM LEAPHART

We concur:

/S/ J. A. TURNAGE

/S/ JAMES C. NELSON

/S/ KARLA M. GRAY

/S/ TERRY N. TRIEWEILER

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