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Scales of justice

Yellowstone County has agreed to pay a former jail employee $275,000 to settle a complaint that the sheriff’s office discriminated and retaliated against her because of disabilities.

Kevin Gillen, the county’s chief civil litigator, said this week that the parties reached a settlement for $275,000 during a mediation session last Friday. The county will pay $250,000 of the settlement, while $25,000 will be paid by the county’s insurance through the Montana Association of Counties, he said.

The case had been set for a contested hearing next month before a hearings officer with Montana Department of Labor and Industry’s Human Rights Bureau.

The former employee, Jolene Wilson, filed a charge of discrimination in October 2014 against Yellowstone County. She alleged the sheriff’s office had discriminated against her based on a disability when it placed her on administrative leave and required her to undergo a fitness-for-duty examination. She also alleged the county engaged in retaliation.

Alex Rate, a Livingston attorney who, along with co-counsel Tim Kelly of Emigrant, represented Wilson, said mediation was not required but that “all the parties agreed this was a case that was a good candidate for resolution prior to a hearing.”

Wilson, who had worked as an administrative coordinator since 1997, initially filed a discrimination complaint with the Human Rights Bureau against the county in January 2014 alleging sexual harassment and retaliation. An investigator reached a “no cause” finding on the complaint.

Wilson filed another complaint in October 2014. This time, an investigator concluded there was cause to believe unlawful discrimination and retaliation had occurred, and the case was set for a hearing.

The October 2014 complaint was Wilson’s third complaint against the county. In 2010, Wilson filed a discrimination complaint alleging sexual harassment and wage discrimination by former Jail Commander Capt. Dennis McCave.

Gillen said there were “no cause” findings in Wilson’s first two complaints.

Wilson’s settlement is the second case involving a jail employee the county has settled in recent years. In 2013, the county settled a discrimination case for $101,500 after former jail employee Dana Dotson alleged sexual harassment and discrimination because she was hearing-impaired.

Rate also represented Dotson.

Wilson filed the October 2014 complaint after Jail Commander Capt. Sam Bofto placed her on paid administrative leave on Aug. 19, 2014, and followed up with a letter requiring her to submit to a “fitness-for-duty examination” to determine “the cause of behavior we believe to be interfering with your ability to perform the essential functions of your job,” the bureau’s final investigative report said.

Five days earlier, on Aug. 14, 2014, Wilson began having symptoms of hypertension, notified a sergeant she was leaving work and later got a medical test that indicated she was not in any physical danger, the report said. She returned to work on Aug. 18, 2014, and was placed on leave the next day.

“Prior to this, Bofto had not approached Wilson at any time with concerns that a physical ailment, or something he felt was a disabling condition, was affecting her job performance,” the report said.

Wilson provided the county a letter from her doctor saying that she was physically fit and able to return to work, but the county refused to accept the evaluation, saying it wanted Wilson to be evaluated by Occupational Health Division of Billings Clinic.

The county contracts with Billings Clinic’s Occupational Health for such evaluations to treat all of its employees the same.

A Billings Clinic doctor found that Wilson appeared to be physically fit and also advised that “although unusual,” the next step in the evaluation would be a neurophysiological exam, the report said.

Rate said that even though the neurophysiological exam did not find any disorder that would prevent Wilson from doing her job, the county nonetheless terminated her after it felt like she wasn’t fit for duty. Wilson was cleared by her medical providers, but the county relied on one report that she was not, he said.

The county denied it discriminated against Wilson. Bofto explained to Wilson why she was being placed on administrative leave and that his letter focused on workplace issues, the report said.

The county contended that once behavioral and performance issues arose, it took “timely action to assist Wilson with her issues,” the report said.

While the county acknowledged it had received a letter from Wilson’s personal medical provider saying she was fit for duty, the county said it was waiting for more information from Occupational Health to determine if Wilson was able to do her job. The county also said it must defer to recommendations of medical professionals regarding Wilson’s return to work, the report said.

The bureau, the report said, acknowledged that an employer can require an employee to undergo a medical exam when health problems affect job performance. But this medical examination should be designed to determine the employee’s ability to work, the report said.

It was unusual, the report said, that when Wilson provided a release from her doctor, the county “chose to ignore this relevant information on the grounds that its medical inquiry had been pushed over to another entity.”

The report concluded that the county failed to establish that it had “a reasonable belief based on objective evidence” that Wilson’s medical condition was interfering with her ability to perform her duties and could not establish that its reasons for placing Wilson on leave and requiring an evaluation were lawful.

Wilson also claimed the county retaliated against her because of her January 2014 human rights complaint. The final investigative report in that case was completed in July 2014, and Wilson was placed on leave the next month.

Because the administrative leave happened within six months of the resolution of Wilson’s January 2014 complaint, the county had the burden to prove that it did not retaliate.

While the county said Wilson was unable to perform the essential duties of her job, it was unable to show “a lawful motive in its actions,” the report said.

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Federal Court, Yellowtone County Reporter

Federal court and county reporter for The Billings Gazette.