Ronald Rumsey v. Woodgrain Millwork, Inc. d/b/a Windsor Windows and Doors, Liz Mallaney, and Clay Coppock
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Opinion
IN THE SUPREME COURT OF IOWA No. 20–0135
Submitted February 17, 2021—Filed June 25, 2021
RONALD RUMSEY,
Appellee,
vs.
WOODGRAIN MILLWORK, INC. d/b/a WINDSOR WINDOWS AND DOORS, LIZ MALLANEY, and CLAY COPPOCK,
Appellants.
Appeal from the Iowa District Court for Polk County,
Coleman McAllister, Judge.
Defendants, as employer, appeal denial of their motion for directed
verdict following jury trial on employee’s disability-discrimination-related
claims. REVERSED AND REMANDED.
Oxley, J., delivered the opinion of the court, in which all justices
joined.
Randall D. Armentrout (argued) and Leslie C. Behaunek of
Nyemaster Goode, P.C., Des Moines, for appellants.
David Albrecht (argued) and Madison Fiedler Carlson of Fiedler Law
Firm, P.L.C., Johnston, for appellee. 2
OXLEY, Justice.
This case involves the not uncommon, yet often murky, intersection
between worker’s compensation and disability discrimination. In this
case, an injured employee with a preexisting hearing impairment
continued to work while rehabilitating from a workplace injury. The
employer assisted the rehabilitation by providing light-duty work
consistent with the temporary workplace restrictions imposed by the
employee’s doctors. A disagreement arose concerning whether the
employee was entitled to a specific work restriction, and the employee was fired. In the ensuing disability discrimination litigation, the employer
claimed the firing was based on insubordination. The employee claimed
the employer discriminated against him by firing him when he sought a
reasonable accommodation for a disability. A jury accepted the employee’s
claim and awarded damages.
As is often the case with workplace injuries, the employer complied
with physician-imposed restrictions for the work injury by providing
temporary light-duty work, but that work was not otherwise available as a
full-time job. Yet for disability discrimination purposes, the employee
must prove he could perform the essential functions of the job. And
courts, including ours, routinely hold that an employer need not create a
new job as an accommodation for disability discrimination purposes. We
preserve that limitation. To hold otherwise would broaden the obligations
an employer owes to accommodate disabilities when an employee is
injured on the job, blurring the distinct obligations an employer owes to
its injured workers for purposes of worker’s compensation and those it
owes to its disabled employees for purposes of disability discrimination. Not every workplace injury results in a disability that can be
accommodated. To the extent the plaintiff’s disability claims were based 3
on the workplace injury, the plaintiff’s failure to identify any job he could
perform apart from the temporary light-duty work defeats his claims.
The hearing-impaired plaintiff also brought disability claims
stemming from his request for a sign language interpreter. His failure-to-
accommodate and retaliation claims related to that request did not depend
on the worker’s compensation imposed restrictions or the plaintiff’s ability
to prove his ability to perform a specific job. Although the jury found for
the plaintiff on those claims, the jury instructions and verdict form prevent
us from determining whether those verdicts were based on the work injury or the request for a sign language interpreter. The defendants are
therefore entitled to a new trial on those two distinct claims.
I. Factual Background and Proceedings.
Ronald Rumsey has been deaf since birth. He uses a hearing aid,
which allows him to hear loud noises, but he relies primarily on lip reading
and sign language to communicate. In 2007, Rumsey began working for
Woodgrain Millwork (Windsor). Rumsey was an exemplary employee for
many years, earning favorable performance reviews and “employee of the
month twice,” once in 2010 and once in 2012. Although he did not use
them in his day-to-day work, Rumsey requested a sign language
interpreter for certain events, such as speaking with human resources or
attending doctor’s appointments for his work-related injuries, and
Windsor provided them.
In early 2015, Rumsey was working the “IG Wrap” job, where he
wrapped large panes of glass for shipping. Windsor classified this job as
a “Material Handler II” position. On January 21, Rumsey hurt his back
and shoulder while moving a large pane of glass from the rack to the worktable for wrapping. As he twisted to position the glass, he felt a sharp
pain in his shoulder and a pop in his back, causing him to drop the glass 4
and fall to the floor. He filed a worker’s compensation claim with Windsor’s
worker’s compensation carrier and received medical treatment from
company-provided doctors. Over the ensuing months, Rumsey’s doctors
gave him various work restrictions, and Windsor complied with the
restrictions by assigning him to light-duty work.
Rumsey initially saw Dr. Daniel Miller, an occupational-medicine
physician, who referred Rumsey to Dr. Todd Harbach for his shoulder and
back pain on February 9. Dr. Harbach determined Rumsey’s back pain
was nonoperable but diagnosed impingement syndrome in his right shoulder that would benefit from surgery. Dr. Harbach scheduled Rumsey
for shoulder surgery in September and returned him to the care of other
doctors for continued occupational therapy and pain management for his
back. Rumsey used sign language interpreters for all of his doctor’s
appointments.
On July 29, Dr. Miller concluded Rumsey’s back had reached
maximum medical improvement (MMI). Dr. Miller issued a permanent
ten-pound lifting restriction at that time, and it became clear Rumsey
could not return to his previous position due to the heavy-lifting
requirements that were part of that job. Even though he reached MMI for
his back in July, Rumsey continued to experience back pain and took
substantial time off, using his sick leave and vacation days to cover the
time. When he did come to work, he performed light-duty work such as
inspecting the quality of glass.
Meanwhile, Dr. Harbach performed a right-shoulder arthroscopic
acromioplasty and distal clavicle excision on September 23 and ordered
physical therapy for Rumsey’s shoulder recovery. Rumsey returned to work in November, but he continued to experience back and shoulder
pain. 5
Windsor’s Human Resources (HR) director Liz Mallaney worked with
Rumsey to implement the work restrictions imposed by his doctors.
Rumsey presented evidence that Mallaney was not always patient with his
requests. For instance, when Rumsey went home early one day because
of back pain, Mallaney responded to the email explaining Rumsey’s early
departure with the single word “Dying.” Rumsey testified Mallaney told
him she could only implement the restrictions he believed he needed if she
had a doctor’s authorization but then she failed to set up doctor’s
appointments. Rumsey saw Dr. Harbach on December 10 as a follow-up for his
shoulder surgery. At that appointment, Rumsey reported improvement in
his shoulder with continuing pain, and Dr. Harbach renewed his order for
physical therapy with hopes of reaching MMI for his shoulder in four to six
weeks. Rumsey also reported continuing back pain and asked whether
Dr.
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IN THE SUPREME COURT OF IOWA No. 20–0135
Submitted February 17, 2021—Filed June 25, 2021
RONALD RUMSEY,
Appellee,
vs.
WOODGRAIN MILLWORK, INC. d/b/a WINDSOR WINDOWS AND DOORS, LIZ MALLANEY, and CLAY COPPOCK,
Appellants.
Appeal from the Iowa District Court for Polk County,
Coleman McAllister, Judge.
Defendants, as employer, appeal denial of their motion for directed
verdict following jury trial on employee’s disability-discrimination-related
claims. REVERSED AND REMANDED.
Oxley, J., delivered the opinion of the court, in which all justices
joined.
Randall D. Armentrout (argued) and Leslie C. Behaunek of
Nyemaster Goode, P.C., Des Moines, for appellants.
David Albrecht (argued) and Madison Fiedler Carlson of Fiedler Law
Firm, P.L.C., Johnston, for appellee. 2
OXLEY, Justice.
This case involves the not uncommon, yet often murky, intersection
between worker’s compensation and disability discrimination. In this
case, an injured employee with a preexisting hearing impairment
continued to work while rehabilitating from a workplace injury. The
employer assisted the rehabilitation by providing light-duty work
consistent with the temporary workplace restrictions imposed by the
employee’s doctors. A disagreement arose concerning whether the
employee was entitled to a specific work restriction, and the employee was fired. In the ensuing disability discrimination litigation, the employer
claimed the firing was based on insubordination. The employee claimed
the employer discriminated against him by firing him when he sought a
reasonable accommodation for a disability. A jury accepted the employee’s
claim and awarded damages.
As is often the case with workplace injuries, the employer complied
with physician-imposed restrictions for the work injury by providing
temporary light-duty work, but that work was not otherwise available as a
full-time job. Yet for disability discrimination purposes, the employee
must prove he could perform the essential functions of the job. And
courts, including ours, routinely hold that an employer need not create a
new job as an accommodation for disability discrimination purposes. We
preserve that limitation. To hold otherwise would broaden the obligations
an employer owes to accommodate disabilities when an employee is
injured on the job, blurring the distinct obligations an employer owes to
its injured workers for purposes of worker’s compensation and those it
owes to its disabled employees for purposes of disability discrimination. Not every workplace injury results in a disability that can be
accommodated. To the extent the plaintiff’s disability claims were based 3
on the workplace injury, the plaintiff’s failure to identify any job he could
perform apart from the temporary light-duty work defeats his claims.
The hearing-impaired plaintiff also brought disability claims
stemming from his request for a sign language interpreter. His failure-to-
accommodate and retaliation claims related to that request did not depend
on the worker’s compensation imposed restrictions or the plaintiff’s ability
to prove his ability to perform a specific job. Although the jury found for
the plaintiff on those claims, the jury instructions and verdict form prevent
us from determining whether those verdicts were based on the work injury or the request for a sign language interpreter. The defendants are
therefore entitled to a new trial on those two distinct claims.
I. Factual Background and Proceedings.
Ronald Rumsey has been deaf since birth. He uses a hearing aid,
which allows him to hear loud noises, but he relies primarily on lip reading
and sign language to communicate. In 2007, Rumsey began working for
Woodgrain Millwork (Windsor). Rumsey was an exemplary employee for
many years, earning favorable performance reviews and “employee of the
month twice,” once in 2010 and once in 2012. Although he did not use
them in his day-to-day work, Rumsey requested a sign language
interpreter for certain events, such as speaking with human resources or
attending doctor’s appointments for his work-related injuries, and
Windsor provided them.
In early 2015, Rumsey was working the “IG Wrap” job, where he
wrapped large panes of glass for shipping. Windsor classified this job as
a “Material Handler II” position. On January 21, Rumsey hurt his back
and shoulder while moving a large pane of glass from the rack to the worktable for wrapping. As he twisted to position the glass, he felt a sharp
pain in his shoulder and a pop in his back, causing him to drop the glass 4
and fall to the floor. He filed a worker’s compensation claim with Windsor’s
worker’s compensation carrier and received medical treatment from
company-provided doctors. Over the ensuing months, Rumsey’s doctors
gave him various work restrictions, and Windsor complied with the
restrictions by assigning him to light-duty work.
Rumsey initially saw Dr. Daniel Miller, an occupational-medicine
physician, who referred Rumsey to Dr. Todd Harbach for his shoulder and
back pain on February 9. Dr. Harbach determined Rumsey’s back pain
was nonoperable but diagnosed impingement syndrome in his right shoulder that would benefit from surgery. Dr. Harbach scheduled Rumsey
for shoulder surgery in September and returned him to the care of other
doctors for continued occupational therapy and pain management for his
back. Rumsey used sign language interpreters for all of his doctor’s
appointments.
On July 29, Dr. Miller concluded Rumsey’s back had reached
maximum medical improvement (MMI). Dr. Miller issued a permanent
ten-pound lifting restriction at that time, and it became clear Rumsey
could not return to his previous position due to the heavy-lifting
requirements that were part of that job. Even though he reached MMI for
his back in July, Rumsey continued to experience back pain and took
substantial time off, using his sick leave and vacation days to cover the
time. When he did come to work, he performed light-duty work such as
inspecting the quality of glass.
Meanwhile, Dr. Harbach performed a right-shoulder arthroscopic
acromioplasty and distal clavicle excision on September 23 and ordered
physical therapy for Rumsey’s shoulder recovery. Rumsey returned to work in November, but he continued to experience back and shoulder
pain. 5
Windsor’s Human Resources (HR) director Liz Mallaney worked with
Rumsey to implement the work restrictions imposed by his doctors.
Rumsey presented evidence that Mallaney was not always patient with his
requests. For instance, when Rumsey went home early one day because
of back pain, Mallaney responded to the email explaining Rumsey’s early
departure with the single word “Dying.” Rumsey testified Mallaney told
him she could only implement the restrictions he believed he needed if she
had a doctor’s authorization but then she failed to set up doctor’s
appointments. Rumsey saw Dr. Harbach on December 10 as a follow-up for his
shoulder surgery. At that appointment, Rumsey reported improvement in
his shoulder with continuing pain, and Dr. Harbach renewed his order for
physical therapy with hopes of reaching MMI for his shoulder in four to six
weeks. Rumsey also reported continuing back pain and asked whether
Dr. Harbach could add a sit-down restriction to his treatment plan. Noting
he had previously treated Rumsey for his back, Dr. Harbach modified
Rumsey’s work restrictions to add a temporary sit-down restriction.
Rumsey gave the new work restrictions, including the sit-down
restriction, to Mallaney on Friday, December 11, and went home for the
day. Mallaney promptly emailed Windsor’s worker’s compensation
coordinator, saying, “Action MUST be taken on Ron Rumsey.” In the email,
Mallaney emphasized that the restrictions were for Rumsey’s shoulder,
questioning “[w]hy sit down work for a shoulder?” She also questioned
Rumsey’s claim that “Dr. Harbach informed him Windsor needs to deal
with the back” when the back injury was closed.
The worker’s compensation coordinator contacted Dr. Harbach’s office and requested that Dr. Harbach submit an addendum to the
document recanting the sit-down restriction because Dr. Miller, not 6
Dr. Harbach, was treating Rumsey’s back. Dr. Harbach issued an
addendum Saturday morning, noting:
I had previously returned the patient to Dr. Miller, an[] occupational medicine physician, for continued care of his low back. Therefore, I cannot provide restrictions related to [Rumsey’s] lumbar spine at this time. I retracted those restrictions and return[ed] [Rumsey] to Dr. Miller for those restrictions.
At his deposition, Dr. Harbach testified his medical opinion remained that
the restriction would have helped Rumsey’s pain but that he had
overstepped his role so he followed the instructions of his worker’s compensation liaison and issued the addendum.
What happened next is largely contested by the parties. Construing
the evidence in the light most favorable to Rumsey, the jury could have
found the following. Rumsey returned to work on Tuesday. When asked
to sign his work restrictions, Rumsey was surprised and confused not to
see the sit-down restriction and refused to sign the modified document. A
floor supervisor then asked Clay Coppock, the production manager, to
discuss the restrictions with Rumsey. Coppock insisted Rumsey sign the
document. Rumsey admittedly became upset and angry, so Rumsey and
Coppock went to speak to Mallaney about it. On the way to Mallaney’s
office, Coppock repeatedly told Rumsey to sign the document.
In Mallaney’s office, Coppock and Mallaney spoke in a location
where Rumsey could not read their lips before they returned to speak with
him. Coppock and Mallaney told Rumsey they would need to discuss the
situation with Peter Crivaro, the head of HR, but that Crivaro would not
arrive until 8:00 a.m., over an hour wait. Rumsey said he was going to
request an interpreter for the meeting with Crivaro and, since he did not think they could locate an interpreter on such short notice, he was going
home. Rumsey further testified that he tried to text his worker’s 7
compensation attorney while in Mallaney’s office and Mallaney and
Coppock stopped him. He sent a text shortly after he left requesting thirty
minutes’ notice for him to return if Mallaney could find an interpreter for
the meeting with Crivaro.
Mallaney and Coppock presented a different story, testifying that
Rumsey got in Coppock’s face, yelled at both of them using profanity,
knocked the doctor’s papers out of Mallaney’s hand, and behaved in a
threatening manner that left Mallaney in fear of him.
After Rumsey left, Mallaney and Coppock decided Rumsey should be fired for insubordination and made that recommendation to Crivaro
when he arrived at work. Crivaro terminated Rumsey’s employment
without meeting with him to discuss the restrictions. Because Rumsey
was represented by counsel, Crivaro contacted Windsor’s attorney to relay
the termination decision to Rumsey’s attorney, who then contacted
Rumsey to inform him he had been fired.
At the time of his firing, Windsor’s employment records identified
Rumsey as a “Fabricator.” Rumsey testified that, at that time, he worked
at a job “beading” doors, where he applied weather stripping to wooden
doors followed by foam that would later be removed to join glass to the
wood, one of many tasks involved in the Fabricator position. Rumsey
never actually worked full time on the beading work, though Rumsey
testified the job could be done full time. Coppock testified, uncontested,
that if someone did the beading job full time, the person would have to
bead more doors than Windsor produced. Additionally, Mallaney testified
that although Rumsey was doing the beading work “full time,” that work
was a light-duty accommodation. Moreover, Rumsey did not work full- time hours in the weeks before he was fired. 8
The parties introduced job descriptions for both the Material
Handler II and the Fabricator positions as exhibits at trial. The Material
Handler description declared the position required “[f]requent lifting,
carrying, pushing and pulling” of objects over fifty pounds, while the
Fabricator position required only occasional lifting, carrying, pushing, and
pulling. Rumsey presented no evidence that he was able to perform any
parts of the Fabricator job other than the beading work.
Rumsey also alleged he was mistreated because of his hearing
impairment throughout his time working at Windsor. The only allegation related to his hearing impairment that occurred within the statutory time
frame for bringing a civil rights claim was Rumsey’s request for an
interpreter for the December 15 meeting that never happened. Although
other incidents were outside the statute-of-limitations period for the
disability claim, the district court allowed some evidence of Windsor’s
conduct related to his hearing impairment for the limited purpose of
proving discriminatory motive but excluded other evidence.
Rumsey took the firing hard. He had a history of difficulties with
other jobs in the past related to his hearing impairment, and he thought
he finally found a place he could work until he retired. Rumsey choked
up on the stand testifying about the pride he took in the work he did at
Windsor. The loss of Rumsey’s job was also a serious financial blow to his
family because his wife was sick and could not work full time.
Rumsey sued Windsor for disability discrimination under the Iowa
Civil Rights Act (ICRA). He brought three specific claims: disability
discrimination, failure to accommodate, and retaliation for requesting an
accommodation. In addition to bringing these claims against Windsor as his employer, Rumsey also named Mallaney and Coppock individually as
defendants. In early 2017, Rumsey settled his worker’s compensation 9
claims for $100,000 plus payment of Rumsey’s medical bills related to his
workplace injuries.
The case proceeded to jury trial on each of the three disability
discrimination claims. The jury returned a verdict in favor of Rumsey,
concluding the defendants were collectively liable under all three claims.
The jury awarded $58,000 in back pay, $300,000 in past-emotional-
distress damages, and $150,000 in future-emotional-distress damages.
The court declined to award frontpay.
The defendants appeal. They argue the district court erred in not granting their motion for a directed verdict, particularly because Rumsey
did not prove he was qualified to perform any permanent job at Windsor.
Alternatively, they argue the instructions and verdict form should have
explained individual liability for Coppock and Mallaney and provided
separate lines for each defendant on the verdict form. They further argue
neither Coppock nor Mallaney can be liable for discrimination under the
ICRA because they are not supervisors. The defendants also challenge
some of the district court’s evidentiary rulings.
Rumsey cross-appeals the denial of frontpay and, if we remand for
a new trial, the exclusion of testimony involving Rumsey’s treatment by
his coworkers. We retained the appeal.
As explained below, we conclude that the defendants were entitled
to a directed verdict on each of Rumsey’s claims except the failure-to-
accommodate and retaliation claims related to requesting a sign language
interpreter. Given the way the claims were intertwined at trial, the
defendants are entitled to a new trial on those claims. We address the
other issues raised by the parties only to the extent they may arise again on retrial. 10
II. Standard of Review.
“We review the district court’s rulings on motions for directed verdict
for correction of errors at law.” Yates v. Iowa W. Racing Ass’n, 721 N.W.2d
762, 768 (Iowa 2006). “[W]e view the evidence in the light most favorable
to the nonmoving party to determine whether the evidence generated a fact
question” that warranted submitting the issues to a jury. Id. “A directed
verdict is required ‘only if there was no substantial evidence to support the
elements of the plaintiff’s claim.’ ” Pavone v. Kirke, 801 N.W.2d 477, 487
(Iowa 2011) (quoting Deboom v. Raining Rose, Inc., 772 N.W.2d 1, 5 (Iowa 2009)). “To overcome a motion for directed verdict, substantial evidence
must exist to support each element of the claim or defense. Substantial
evidence exists if reasonable minds could accept the evidence to reach the
same findings.” Yates, 721 N.W.2d at 768 (citation omitted).
III. Analysis.
The defendants appeal the district court’s denial of their motion for
directed verdict. Specifically, the defendants argue that Rumsey failed to
prove he was qualified to perform the essential functions of his job, a
necessary element of his disability discrimination and failure-to-
accommodate claims. A fighting issue in this appeal is identifying what
“job” the jury was required to consider in determining whether Rumsey
could perform its essential functions.
The defendants argue that, as an element of Rumsey’s case in chief,
Rumsey was required to identify a specific job and the job had to be a
permanent job available at Windsor. In an effort to provide “suitable work”
within the context of Rumsey’s worker’s compensation claim, Windsor
arranged for Rumsey to perform light-duty work while Rumsey was 11
rehabilitating the injuries to his back and shoulder.1 However, the
defendants argue disability discrimination laws do not require employers
to create a permanent light-duty job where none currently existed.
Rumsey responds by identifying the “beading” job, part of the fabricator
category of positions, as a job he could perform. He also argues he is not
required to identify a specific job because Windsor admitted it was willing
to accommodate him with light-duty work and did not terminate him for
lack of an available job.
The instructions to the jury did not require it to identify what job Rumsey could perform or otherwise limit the types of jobs the jury could
consider in determining whether Rumsey was able to perform the essential
functions of his job. The relevant element of the jury instructions for
Rumsey’s disability discrimination and failure-to-accommodate claims
had similar requirements.
Instruction No. 17 for the disability discrimination claim required
Rumsey to prove as element four:
At the time of his termination, Plaintiff could have performed the “essential functions” of his job, with or without “reasonable accommodations.”
Instruction No. 19 for the failure-to-accommodate claim required
The Plaintiff could have performed the essential functions of his job at the time of his termination if the Plaintiff had been provided with sit down work and/or a sign language interpreter.
1See Neal v. Annett Holdings, Inc., 814 N.W.2d 512, 519 (Iowa 2012) (“Iowa Code section 85.33(3) disqualifies an employee from receiving temporary partial, temporary total, and healing period benefits if the employer offers ‘suitable work’ that the employee refuses. If the employer fails to offer suitable work, the employee will not be disqualified from receiving benefits regardless of the employee’s motive for refusing the unsuitable work.” (citations omitted)). 12
“Job” was not otherwise defined in the jury instructions. Nor was the jury
instructed to determine what “job” Rumsey could perform.
In determining whether the district court should have granted a
directed verdict, we judge the evidence against the jury instructions when
the parties do not object to the instructions. See Easton v. Howard, 751
N.W.2d 1, 5 (Iowa 2008) (explaining instructions become the law of the
case when the parties make no objections). But here, the defendants
challenged each of the instructions by seeking to add language describing
the job as “a full-time, non-light duty job.” The defendants argued that
[b]ecause the provision of light duty work is not a reasonable accommodation as a matter of law, this instruction needs to make it clear to the jury that when they consider what Plaintiff’s “job” was for purposes of his disability discrimination claim, they do not consider light duty tasks.
The district court rejected the requested language.
Given these objections, the jury instructions do not limit our
analysis. Cf. Shams v. Hassan, 905 N.W.2d 158, 169 (Iowa 2017)
(reversing jury verdict and remanding for new trial after district court failed
to provide instruction on statute of limitations, recognizing district court’s
obligation to correctly instruct the jury on legal issues raised by parties
even if requested instruction misstated the applicable legal principle). Rather, we apply the statute and applicable caselaw in determining
whether the district court erred in denying the defendants’ motion for
directed verdict.
A. The Plaintiff’s Prima Facie Case for Disability
Discrimination and Failure-to-Accommodate Claims. Under the ICRA,
an employer engages in “an unfair or discriminatory practice” if it
discharges an employee “because of the . . . disability of such . . . employee.” Iowa Code § 216.6(1)(a) (2017). The ICRA “only pronounces a 13
general proscription against discrimination and we have looked to the
corresponding federal statutes to help establish the framework to analyze
claims and otherwise apply our statute.” Casey’s Gen. Stores, Inc. v.
Blackford, 661 N.W.2d 515, 519 (Iowa 2003).
To prevail on a disability discrimination claim under the ICRA, [Rumsey] must initially prove a prima facie case by showing: (1) he has a disability, (2) he is qualified to perform the essential functions of [the job], and (3) the circumstances of his termination raise an inference of illegal discrimination.
Goodpaster v. Schwan’s Home Serv., Inc., 849 N.W.2d 1, 6 (Iowa 2014).
For his separate claim for failure to provide a reasonable
accommodation, Rumsey must prove he was a qualified individual, his
employer knew of his disability, he requested a reasonable
accommodation, and he suffered an adverse employment action. See
Garrison v. Dolgencorp, LLC, 939 F.3d 937, 941 (8th Cir. 2019) (describing
elements of failure-to-accommodate claim under the Americans with
Disabilities Act (ADA)); Gardea v. JBS USA, LLC, 915 F.3d 537, 541 (8th
Cir. 2019) (defining elements for failure to accommodate under both ADA
and ICRA). The “qualified individual” element requires proving he could
“perform the essential functions of [the] position, with or without
reasonable accommodation.’ ” Gardea, 915 F.3d at 541 (second quoting Hill v. Walker, 737 F.3d 1209, 1218 (8th Cir. 2013)).
The element at issue here is whether Rumsey was qualified to
perform the essential functions of the job.2
B. Does the “Bead Taping” Job Satisfy Rumsey’s Burden of
Proving He Was a Qualified Individual? “The first step of our inquiry”
into the qualified individual element is whether Rumsey “could perform
2Windsor does not dispute that Rumsey’s hearing impairment as well as his back and shoulder injuries satisfy the first element that Rumsey was disabled for purposes of the ICRA. 14
the essential functions of the job.” Goodpaster, 849 N.W.2d at 14 (second
quoting Boelman v. Manson State Bank, 522 N.W.2d 73, 80 (Iowa 1994)).
“[T]he court must consider whether the person has ‘the requisite skill,
experience, education and other job-related requirements of the
employment position that such individual holds or desires.’ ” Schlitzer v.
Univ. of Iowa Hosps. & Clinics, 641 N.W.2d 525, 531 (Iowa 2002) (quoting
Treanor v. MCI Telecomms. Corp., 200 F.3d 570, 575 (8th Cir. 2000)); see
also Goodpaster, 849 N.W.2d at 14 (explaining whether an employee is
“qualified” depends on “the needs of a particular job[] and the impact of disability on a person’s ability to perform that job” (second quoting
Courtney v. Am. Nat’l Can Co., 537 N.W.2d 681, 685 (Iowa 1995))).
In July, Rumsey reached MMI for his back injury and his doctor
imposed a permanent ten-pound lifting restriction. However, at the time
of his termination in December, he was still attending physical therapy
following his shoulder surgery, and that injury had not yet reached MMI.
The parties agree the heavy-lifting requirements of the IG Wrap job
precluded Rumsey from returning to that position. That is not the end of
the inquiry, however, because an employee can also show he is a qualified
individual by identifying another position to which he could have been
reassigned. See Schlitzer, 641 N.W.2d at 530–31 (considering whether
hospital discriminated against nurse who sought reassignment); see also
Iowa Admin. Code r. 161—8.28 (“When an individual becomes disabled,
from whatever cause, during a term of employment, the employer shall
make every reasonable effort to continue the individual in the same
position or to retain and reassign the employee and to assist that
individual’s rehabilitation.”). Thus, if an employee is unable to return to his former job, we look next to whether other jobs existed that he could 15
perform with or without accommodation. See Schlitzer, 641 N.W.2d at
530.
Rumsey “must identify a specific available job [he] is qualified to
perform to ultimately recover under the [ICRA].” Casey’s Gen. Stores, Inc.,
661 N.W.2d at 521. “Without this showing, an employee cannot establish
he or she is a qualified person.” Id.; see also Schlitzer, 641 N.W.2d at 530
(“[The employee] has the burden of making a prima facie case that there
was a job available and that she was qualified to fill it.”).
Rumsey identifies the Fabricator position, which is the position identified in Windsor’s personnel records at the time of his termination.
He claims he performed “multiple jobs within his restrictions, including
beading, maintenance, cleaning, floor scrubbing, glass quality inspection,
putting screws in hinges, and organizing hardware.” Rumsey identified
the “beading” job throughout trial as the job he had been performing at
the time of his termination and the one he was qualified to perform for
purposes of his disability discrimination claims.
Reassignment requires the employee to identify a currently available
vacant position the employee is qualified to perform. See Casey’s Gen.
Stores, Inc., 661 N.W.2d at 521; see also Schlitzer, 641 N.W.2d at 530.
“[A]n accommodation by reassignment does not require an employer to
respond by creating a vacant position.” Casey’s Gen. Stores, Inc., 661
N.W.2d at 521; see also Schlitzer, 641 N.W.2d at 530. Nor does it require
the employer to create a new job from tasks taken from other employees,
see Hoskins v. Oakland Cnty. Sheriff’s Dep’t, 227 F.3d 730 (6th Cir. 2000)
(affirming summary judgment for employer who refused deputy’s
requested reassignment to work full time in prison control booth where those duties were considered “easier” and rotated among all deputies as a
relief position), or to turn a temporary light-duty position into a permanent 16
position, see Malabarba v. Chi. Trib. Co., 149 F.3d 690, 697 (7th Cir. 1998)
(“Although the ADA provides that reassignment to a vacant position may
constitute a reasonable accommodation, it does not require that employers
convert temporary ‘light-duty’ jobs into permanent ones.”); see also Rehrs
v. Iams Co., 486 F.3d 353, 359 (8th Cir. 2007) (“P & G [was not] required
to create a new straight-shift technician position or similar position to
accommodate Rehrs.”); Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944,
950 (8th Cir. 1999) (“Pizza Hut [is not] required to create a new position or
to create a permanent position out of a temporary one as an accommodation.”); Shiring v. Runyon, 90 F.3d 827, 831 (3d Cir. 1996)
(“The ‘casing’ position to which he was temporarily assigned was not an
official position, but had been created by the Postal Service to give Shiring
something to do on a temporary basis. Therefore, Shiring’s suggestion
that he would have been qualified to perform the requirements of such a
position does not help his case because under the Act employers are not
required to create positions specifically for the handicapped employee.”).
With respect to not requiring employers to turn temporary workplace
accommodations into permanent positions that did not previously exist,
one court explained that if the law said otherwise, “[e]mployers would stop
offering temporary light-duty assignments to accommodate temporary
disabilities, fearing that their temporary elimination of certain essential
functions of the job for those temporarily-disabled employees would force
them to make their elimination permanent.” Williams v. Eastside
Lumberyard & Supply Co., 190 F. Supp. 2d 1104, 1114 (S.D. Ill. 2001).
The accommodation Rumsey requested for his permanent back injury
makes this point. Rumsey requested an accommodation for a sit-down position because standing hurt his back. The fourth element of Rumsey’s
failure-to-accommodate claim as instructed to the jury required Rumsey 17
to prove he “could have performed the essential functions of his job at the
time of his termination if [he] had been provided with sit down work . . . .”
The only position Rumsey identified that he could perform while sitting
down was the bead-taping work.
The problem with Rumsey’s argument is that bead taping was not a
permanent job. It was a light-duty, temporary position created to give him
suitable work while he was recuperating from his workplace injuries. It
was not an actual full-time job. As Windsor described it, and Rumsey did
not dispute, it is more accurately characterized as a task needed to be done as part of a number of duties involved in the Fabricator position.
Windsor pulled that task out of other employees’ job duties to provide light-
duty work for Rumsey consistent with the restrictions imposed while he
was rehabilitating from his injuries.
While Rumsey testified at trial that he worked at the bead-taping
station “full time,” that was after he explained “[b]eading was part of my
light-duty restriction.” Rumsey confirmed he never worked a full forty
hours during any week at the bead-taping station, testifying only that he
could have worked the position full time had he not needed to take time
off for his back pain. It is undisputed that he only performed that work
on a part-time basis over four weeks, during which he worked seven hours,
sixteen hours, thirty-one hours, and six hours, respectively.
Rumsey’s reliance on Mallaney’s testimony does not support his
assertion that bead-taping was a full-time position. While Rumsey’s
attorney may have characterized it as such in questioning Mallaney, her
testimony made clear that it was a temporary light-duty position.3
3Mallaney’s testimony was consistent between questioning by the plaintiff’s
counsel: 18
Coppock also testified that if someone worked at the bead-taping
station as their only job, it would take fifteen minutes to bead the amount
of sashes that could be produced in an hour, so that there was not enough
work to keep a person busy if they only worked at the bead-taping station
as a full-time position. Rumsey offered no evidence to contradict this
explanation of the bead-taping work. Construing the evidence in the light
most favorable to Rumsey, he failed to establish that the bead-taping
position was anything other than a light-duty job provided to him on a
temporary basis while he finished rehabilitating his workplace injuries.
Q. And Ron’s job involved putting little strips of bead or foam along these thin light boards; right? A. Right. That was a small part of a job that an employee would do, yes, yes. It’s called beading . . . . Q. Beading. And this job that Ron was doing, putting the strips of bead, he performed full-time; right? A. With light-duty. Yes. .... Q. As you testified, that was full-time work; right? A. Light-duty work for him, yes. .... Q. Right. Now, Ron was certainly qualified to do the job as fabricator that he was performing; right? A. That one spot there, yes. .... Q. And had he not been fired, he could have continued on in that position; right? A. Like I said, that was a small part of another job. Q. Ma’am, my -- I appreciate -- A. Yes. .... Q. Had Ron not been fired, he could have stayed in that full-time position; correct? A. With the light-duty restrictions, yes. And by defense counsel: Q. Does the bead taping line station, is it a full-time, full-duty position for anybody at Windsor? A. You mean by that is that the only job they do? Q. Right. A. No. There’s a variety of jobs that come with that. That doesn’t take -- that’s -- that’s -- like I said, that’s a little bit of a job that an employee does. Q. So when Mr. Rumsey was doing this job, this was a small part of other people’s jobs? A. Right. 19
Rumsey’s argument that Windsor was required to engage in the
interactive process before firing him does not save his claim. “Even if an
employer fails to fully assist an employee in a request for reassignment,
the employee must still show a specific position was available that he or
she could have sought.” Casey’s Gen. Stores, Inc., 661 N.W.2d at 521; see
also Burns v. Coca–Cola Enters., Inc., 222 F.3d 247, 258 (6th Cir. 2000)
(“Burns simply did not show that he was qualified to perform the positions
that he now identifies in his brief as potential accommodations.”);
Fjellestad, 188 F.3d at 952 (“[A]n employer will not be held liable under the ADA for failing to engage in an interactive process if no reasonable
accommodation was possible . . . .”); Smith v. Midland Brake, Inc., 180 F.3d
1154, 1174 (10th Cir. 1999) (en banc) (“Even if Midland Brake failed to
fulfill its interactive obligations to help secure a reassignment position,
Smith will not be entitled to recovery unless he can also show that a
reasonable accommodation was possible and would have led to a
reassignment position.”).
Rumsey relies solely on the temporary light-duty work Windsor
provided for him. But to bring a disability discrimination or failure-to-
accommodate claim, he bears the burden of first proving he was a qualified
individual, which includes identifying a permanent position he was
qualified to perform, given the proper accommodations. The only
accommodation he suggests is a sit-down position. His failure to present
any evidence that Windsor had a permanent position that could be
performed with that accommodation precludes his disability-
discrimination-based claims. See Casey’s Gen. Stores, Inc., 661 N.W.2d at
521; see also Williams, 190 F. Supp. 2d at 1117 (“While Eastside did accommodate Williams’ temporary condition for two years, the duration of
an arrangement to accommodate an employee’s temporary condition is 20
not, by itself, sufficient to show that the arrangement was meant to last
forever.”).
We cannot ignore Rumsey’s obligation, as part of his prima facie
case, to identify a permanent position to which he could have been
reassigned. As we explained in Casey’s General Stores, Inc. v. Blackford,
[a]lthough we interpret our statute to impose a duty on an employer to accommodate a worker who is unable to perform his or her job because of a disability, we still require an employee who seeks reassignment as an accommodation to show, as a predicate to recovery, that reassignment to a vacant position could have been accomplished. It is not enough for the employee to make a general claim of the existence of the vacant position.
661 N.W.2d at 523 (citation omitted). Here, Rumsey does not even claim
such a position existed outside of the temporary light-duty work Windsor
provided while he continued to rehabilitate his shoulder injury.
Requiring the employee to identify a specific vacant position for
which he is qualified is consistent with the protections provided by the
ICRA.
Like the ADA, our unfair employment practices statute exists to eliminate discrimination against persons with disabilities, as well as discrimination based on other protected characteristics. We interpret the statute consistent with this purpose so that persons with disabilities will not suffer discrimination at the hands of employers in this state.
Id. at 525 (citation omitted). Nevertheless, as a predicate to recovery for a
claim under the ICRA, we require a claimant to “show he or she was
qualified to perform a specific vacant position sought.” Id. Where the
claimant “fail[s] to satisfy this burden,” the claim fails as a matter of law.
Id. at 517–19, 525 (“conclud[ing] as a matter of law that Blackford failed
to establish he was a qualified employee” and affirming the district court’s reversal of Civil Rights Commission award on disability discrimination
claim). 21
Rumsey argues he is excused from proving this element of his
disability-discrimination-based claims because Windsor did not assert it
fired him for lack of temporary work. Rumsey relies on this reasoning to
distinguish the line of cases holding an employer is not required to create
a permanent position out of a temporary light-duty job it provides for an
employee on a temporary basis. While Rumsey cites Taylor v. Garrett, 820
F. Supp. 933 (E.D. Pa. 1993), to support his position, he fails to provide
any legal analysis explaining the difference that factual distinction makes.
Our review of that case does not support Rumsey’s position. Taylor is a district court case denying summary judgment when an
employee was terminated while working in a light-duty position after a
work injury prevented him from continuing to work as a rigger. Id. at 939–
40. In Malabarba v. Chicago Tribune Co., the United States Court of
Appeals for the Seventh Circuit, as have other courts, distinguished Taylor
“in one very significant way—the plaintiff[] . . . [was] assigned to [a]
permanent ‘light-duty’ assignment[], whereas Malabarba’s ‘light-duty’
work assignment as a material handler was only temporary.” 149 F.3d at
697 (emphasis omitted); see also Sharpe v. Henderson, No. CV–00–71–ST,
2001 WL 34039485, at *7 (D. Or. Oct. 19, 2001) (distinguishing Taylor on
the same basis); Copeland v. Chrysler Corp., No. 211109, 2000 WL
33533981, at *3 (Mich. Ct. App. Feb. 11, 2000) (per curiam) (same). The
same is true here where the only evidence presented at trial made clear
Windsor had no permanent light-duty positions, including the bead-taping
position presented to the jury.
As explained above, in disability-discrimination-based claims, the
employee carries the burden of first proving he is qualified, i.e., able to perform the essential functions of a permanent and vacant job. Rumsey’s
only response is that “[t]he jury could reasonably infer Defendants would 22
not have retained [Rumsey] if he were unqualified or could not physically
perform his job.” But the defendants’ actions of providing a temporary
light-duty position while Rumsey was rehabilitating his workplace
shoulder injury as part of his worker’s compensation claim does not satisfy
Rumsey’s obligation of identifying a permanent and vacant position he was
qualified to perform, a necessary predicate for his disability discrimination
claims.
Rumsey seems to be arguing that this is a mixed-motives case, not
a direct-evidence failure-to-accommodate case, so that a different standard applies. Rumsey does not expand on this argument (or explain
how a different standard would be applied), and we reject it. The reason
Windsor terminated Rumsey becomes relevant only after Rumsey first
establishes a prima facie case of disability discrimination or failure to
accommodate, both of which include showing that he was a qualified
individual. See Casey’s Gen. Stores, Inc., 661 N.W.2d at 525. Thus, unless
he can show he was a qualified individual, the fact that he was terminated
for a reason other than an ability to continue the work he was performing
has no bearing on his disability discrimination claims.
An analogous situation can be seen in Fjellestad v. Pizza Hut of
America, Inc., 188 F.3d 944. After a Pizza Hut store manager was seriously
injured in a car accident, Pizza Hut promoted another shift manager as an
interim comanager to perform some of her duties so she could continue
working part time while recuperating. 188 F.3d at 947. Her doctor
imposed restrictions of working no more than thirty-five to forty hours per
week and no more than three consecutive days. Id. Despite glowing
reviews prior to her accident, she was eventually terminated for performance reasons three weeks after her doctor determined she had
reached maximum recovery. Id. at 947–48. She sued for disability 23
discrimination, and the district court granted summary judgment for Pizza
Hut on the basis the employee failed to establish a prima facie case of
disability discrimination. Id. at 948.
On appeal, the fact that Pizza Hut fired the manager for
performance-based reasons rather than an inability to perform her job had
no effect on the Eighth Circuit’s analysis. Rather, the court considered
whether the employee submitted sufficient evidence to create a fact issue
on the elements of her prima facie case, including whether Pizza Hut could
have reasonably accommodated her disability. Id. at 950–51. The Eighth Circuit concluded her request to make the comanager position permanent
failed as a matter of law because Pizza Hut was not required to “create a
permanent position out of a temporary one as an accommodation.” Id. at
950. It reversed summary judgment, however, because Fjellestad had
made a sufficient showing “and created a genuine issue of material fact”
as to whether she could have performed another vacant position,
identifying the shift manager position vacated by the interim comanager
when she was permanently promoted to store manager. Id. at 950–51.
“After Fjellestad made this facial showing that reasonable accommodation
was possible, the district court should then have shifted the burden to
Pizza Hut to prove that it was unable to accommodate Fjellestad through
reassignment to this position.” Id. at 951. That Pizza Hut did not claim it
fired her because it could not accommodate her disabilities played no part
in the court’s analysis of whether the plaintiff met her burden to establish
a prima facie case.
The same reasoning applies when an employer provides temporary
light-duty tasks to accommodate an employee recuperating from work- related injuries and then fires the employee for reasons unrelated to his
ability to perform the work. To establish a valid disability discrimination 24
claim, the employee must still present evidence that he was a qualified
employee able to perform the essential functions of his job or another
permanent vacant job. Rumsey failed to “make a facial showing that
reasonable accommodation [wa]s possible,” id. at 950, and Windsor was
entitled to judgment as a matter of law on Rumsey’s disability
discrimination and failure-to-accommodate claims.
C. Retaliation for Requesting a Sit-Down Accommodation.
Although we review the retaliation claim under a somewhat different legal
analysis, we likewise conclude that Rumsey failed to present evidence to support submitting his retaliation claim related to the sit-down
accommodation to the jury.
The ICRA makes it
an unfair or discriminatory practice for: . . . Any person to . . . retaliate against another person in any of the rights protected against discrimination by this chapter because such person has lawfully opposed any practice forbidden under this chapter, obeys the provisions of this chapter, or has filed a complaint, testified, or assisted in any proceeding under this chapter.
Iowa Code § 216.11(2). The ICRA anti-retaliation provision is worded
similarly to the ADA. Compare id., with 42 U.S.C. § 12203(a) (“No person shall discriminate against any individual because such individual has
opposed any act or practice made unlawful by this chapter or because
such individual made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing under this chapter.”).
A prima facie case of retaliation under the ICRA requires the plaintiff to
establish (1) he was engaged in statutorily protected activity, (2) he was
subjected to an adverse employment action, and (3) a causal connection
between his participation in the protected activity and the adverse 25
employment action. Boyle v. Alum-Line, Inc., 710 N.W.2d 741, 750 (Iowa
2006).
Neither the ICRA nor the ADA identifies requesting an
accommodation for a disability as protected activity. Yet, courts generally
recognize that requesting a reasonable accommodation is protected
activity that supports a retaliation claim. See Kirkeberg v. Canadian Pac.
Ry., 619 F.3d 898, 908 (8th Cir. 2010) (“[A]lthough ‘[i]t is questionable’
whether an employee who merely requests a reasonable accommodation
‘fits within the literal language of the statute,’ we are bound by Heisler [v. Metropolitan Council, 339 F.3d 622 (8th Cir. 2003)] to conclude that
making such a request is protected activity for purposes of 42 U.S.C.
§ 12203(a).” (second alteration in original) (citation omitted) (quoting
Soileau v. Guilford of Me., Inc., 105 F.3d 12, 16 (1st Cir. 1997))).
We have not directly addressed whether requesting an
accommodation is protected activity under the ICRA. Assuming it is, the
employee must still show his request for an accommodation was
sufficiently related to a claimed disability so that the requested
accommodation could be considered “lawfully oppos[ing] any practice
forbidden under” chapter 216. Iowa Code § 216.11(2). This requirement
keeps a retaliation claim within the confines of the statute, which prohibits
retaliation only with respect to “any of the rights protected against
discrimination by this chapter.” Id. Thus, requesting an unreasonable
accommodation, such as one not aimed at enabling the employee to
perform the essential functions of a job, would not be considered opposing
a practice forbidden by chapter 216.
Requiring Rumsey to prove, as part of his retaliation claim, that he requested an accommodation that would allow him to perform the
essential functions of the job is also consistent with the jury instructions. 26
Instruction No. 21 required Rumsey to prove he “engaged in protected
activity by requesting a reasonable accommodation for a disability,” and
Instruction No. 28 defined “a ‘reasonable accommodation’ [a]s a
modification . . . which would enable a qualified individual with a disability
to perform the essential functions of the position.”
Federal courts recognize a similar limiting principle by requiring a
good-faith belief that the requested accommodation was “appropriate”
within the context of the ADA. See Heisler, 339 F.3d at 632 (“ ‘An
individual who is adjudged not to be a “qualified individual with a disability” may still pursue a retaliation claim under the ADA’ as long as
she had a good faith belief that the requested accommodation was
appropriate [under the ADA].” (citations omitted) (quoting Mondzelewski v.
Pathmark Stores, Inc., 162 F.3d 778, 786 (3d Cir. 1998))). A request for an
accommodation that clearly would not enable the employee to perform the
essential functions of his job would not be reasonable, and therefore not
appropriate, so there would no basis for finding that the employee was
engaged in protected activity. See Monroe v. Fla. Dep’t of Corr., 793 F.
App’x 924, 928 (11th Cir. 2019) (per curiam) (“Monroe’s only purported
protected activity was his request for indefinite leave. Because our caselaw
was and is clear that a request for indefinite leave is not a reasonable
accommodation, Monroe could not have had a good faith, reasonable belief
that he was engaging in protected activity.”); see also Williams, 190 F.
Supp. 2d at 1122 n.15 (“[T]o the extent that Williams was requesting to
remain on light-duty indefinitely, this was not a request for a reasonable
accommodation. It is even more doubtful whether the ADA anti-retaliatory
provisions would consider requesting unreasonable accommodations as ‘protected activity.’ ” (emphasis omitted)). 27
Analogous to Monroe v. Florida Department of Corrections, our
caselaw makes clear that an accommodation is not reasonable if it requires
the employer to create a new position. See Casey’s Gen. Stores, Inc., 661
N.W.2d at 521; see also Schlitzer, 641 N.W.2d at 530. As discussed above,
the only position Rumsey identified that could be performed sitting down
was the temporary light-duty work he performed at the bead-taping
station. The request for a sit-down accommodation would have required
Windsor to create a new position. Therefore, Rumsey cannot be said to
have been engaging in the protected activity of opposing disability discrimination under the ICRA when he requested a sit-down restriction
because that was clearly not a reasonable accommodation that would have
enabled him to perform the essential functions of an available job.
Rumsey failed to establish he was engaged in statutorily protected
activity under the ICRA, the first element of a retaliation claim, see Boyle,
710 N.W.2d at 750, and the district court should have granted a directed
verdict in favor of the defendants with respect to his request for a sit-down
accommodation.
D. Claims Related to Rumsey’s Hearing Impairment and
Request for a Sign Language Interpreter. Windsor does not dispute that
Rumsey’s hearing impairment is a disability. Rumsey filed his
administrative claim with the Iowa Civil Rights Commission 295 days after
he was terminated, so the only actionable conduct related to
accommodating Rumsey’s hearing impairment within the 300-day
statutory period, see Iowa Code § 216.15(13), was Rumsey’s request on
December 15 for a sign language interpreter for the meeting with Crivaro.
In instructing the jury on each of Rumsey’s theories of recovery, the court submitted Rumsey’s request for a sign language interpreter together
in the same instructions with his request for a sit-down accommodation, 28
as requested by the parties. Now that we have concluded the defendants
are entitled to judgment as a matter of law on each claim premised on the
request for a sit-down accommodation, it is difficult to parse out the claims
related solely to the request for an interpreter. Unless the claims related
to Rumsey’s request for an interpreter also fail as a matter of law, remand
for a new trial on those claims will be necessary. See Alcala v. Marriott
Int’l, Inc., 880 N.W.2d 699, 710 (Iowa 2016) (“A new trial is required after
a general verdict is returned for the plaintiff if the evidence was insufficient
to submit one of several specifications of negligence.”); Erickson v. Wright Welding Supply, Inc., 485 N.W.2d 82, 86 (Iowa 1992) (“In civil cases, ‘when
a trial court errs in submitting even one of several theories of recovery and
the jury returns only a general verdict for the plaintiff the verdict cannot
stand and the defendant is entitled to a new trial.’ ” (quoting Gordon v.
Noel, 356 N.W.2d 559, 565 (Iowa 1984))).
1. Discrimination claim. After Rumsey refused to sign the work
restrictions without a sit-down restriction and after the meeting in
Mallaney’s office, Mallaney told Rumsey he would need to talk to Crivaro.
Rumsey requested a sign language interpreter for that meeting because he
had trouble keeping track of what everyone was saying in meetings with
multiple people, so an interpreter made it easier to understand and to
communicate. But Crivaro decided to terminate Rumsey based on
Mallaney and Coppock’s recommendation, so there was never a meeting
that would have required an interpreter.
Rumsey claimed Windsor discriminated against him because he was
hearing-impaired. To prove his discrimination claim, Rumsey was
required to prove: (1) he had a disability, (2) he was qualified to perform the essential functions of the job, and (3) the circumstances of his
termination raised an inference of discrimination. See Goodpaster, 849 29
N.W.2d at 6. Our determination that Rumsey failed to establish he could
perform the essential functions of any available job at Windsor means he
failed to establish a claim for discrimination under either claimed
disability, including his hearing impairment.
2. Failure-to-accommodate and retaliation claims. Rumsey’s request
for an interpreter requires a different analysis. With respect to his failure-
to-accommodate claim, a requested accommodation does not necessarily
need to enable the employee to perform an essential function of his daily
tasks to be a reasonable accommodation. See, e.g., EEOC v. UPS Supply Chain Sols., 620 F.3d 1103, 1111 (9th Cir. 2010) (“UPS concedes that
understanding and participating in mandatory departmental meetings are
‘benefits and privileges of employment’ . . . .” (quoting 29 C.F.R.
§ 1630.2(o)(1)(iii))). A jury could find that Rumsey’s request for an
interpreter for the meeting with Crivaro was a request for a reasonable
accommodation. It was an important meeting, and evidence showed
Rumsey had requested (and received) an interpreter for other similar
meetings in the past.
Although the jury returned a verdict in Rumsey’s favor on the
failure-to-accommodate claim, the record does not reveal whether the jury
based its verdict on the request for a sit-down instruction or the request
for an interpreter. Likewise, the defendants were entitled to judgment if
they established they would have made the same employment decision
notwithstanding the requested accommodation. See Hawkins v. Grinnell
Reg’l Med. Ctr., 929 N.W.2d 261, 272 (Iowa 2019) (“[I]n discrimination and
retaliation cases under ICRA, we apply the Price Waterhouse[4] motivating-
4Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775 (1989) (plurality opinion), superseded by statute, Civil Rights Act of 1991, Pub. L. No. 102-166, § 107(a), 105 Stat. 1071, 1075 (codified at 42 U.S.C. § 2000e–2(m) (1994)). 30
factor standard in instructing the jury and the defendant is entitled to an
instruction on the same-decision defense recognized in Price Waterhouse
if properly pled and proved.”). As instructed, the jury had to consider
whether Windsor would have made the same decision despite the request
for both the sit-down restriction and the interpreter, but we cannot tell
which basis the jury relied on for its verdict. Defendants are therefore
entitled to a new trial on Rumsey’s claim for failure to accommodate his
request for an interpreter.
On remand, Windsor will have to prove it would have made the same decision even if it had not taken into account the request for an interpreter.
Id. We note in remanding the case for a new trial that a failure-to-
accommodate claim is not, as Rumsey argues, a strict-liability claim. See
Minnihan v. Mediacom Commc’ns Corp., 779 F.3d 803, 813 (8th Cir. 2015)
(“There is no per se liability under the ADA if an employer fails to engage
in the interactive process.”).
Similarly, requesting a sign language interpreter for a meeting with
HR could be considered protected activity for purposes of Rumsey’s
retaliation claim. See Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136
(8th Cir. 1999) (en banc) (concluding “Kiel’s requests for a
[telecommunications device (TDD)] were protected communications” for
purposes of a retaliation claim). The request for an interpreter is not per
se unreasonable in the same way as the request for a sit-down restriction.
Providing a sign language interpreter for an important meeting is akin to
providing a ramp into the building for a wheelchair-bound employee. See,
e.g., Iowa Admin. Code r. 161—8.27(6)(a) (providing examples of
reasonable accommodations to include “[m]aking facilities used by employees readily accessible to and usable by handicapped persons” and
providing “readers or interpreters”); 42 U.S.C. § 12111(9) (same). A 31
retaliation claim focuses on protected activity, and the defendants do not
dispute that, as a general matter, a hearing-impaired employee who
requests an interpreter for an important meeting has engaged in protected
activity.
Nonetheless, an employee who engages in terminable conduct
cannot avoid the consequences of his actions by then requesting an
accommodation for those actions. See, e.g., Schaffhauser v. United Parcel
Serv., Inc., 794 F.3d 899, 906 (8th Cir. 2015) (“[L]iability is not established
where ‘an employee engages in misconduct, learns of an impending adverse employment action, and then informs his employer of a disability
that is the supposed cause of the prior misconduct and requests an
accommodation.’ ” (quoting Schaffhauser v. United Parcel Serv., Inc.,
No. 4:12–cv–00599 KGB, 2014 WL 197684, at *10 (E.D. Ark. Jan. 15,
2014), aff’d, 794 F.3d 899 (8th Cir. 2015))); Hill v. Kan. City Area Transp.
Auth., 181 F.3d 891, 894 (8th Cir. 1999) (holding a request for an
accommodation by a bus driver, after she fell asleep twice while on the job,
was untimely because the request was made after she engaged in
terminable misconduct).
The fighting issue on the retaliation claim is whether Rumsey
established a causal connection between his participation in the protected
activity and the adverse employment action. See Boyle, 710 N.W.2d at
750. We start with the proper standard for assessing that causal
connection. We recently refined the standard in Haskenhoff v. Homeland
Energy Solutions, LLC, where we held that “the motivating factor causation
standard” applies to retaliation claims under the ICRA. 897 N.W.2d 553,
602 (Iowa 2017) (Cady, C.J., concurring in part and dissenting in part) (concurring with Appel, J., to “adopt the motivating factor causation
standard” for retaliation claims under the ICRA); see also Hawkins, 929 32
N.W.2d at 271 (discussing Haskenhoff and explaining “[t]he motivating-
factor standard is a lower standard than the determining-factor
standard”). Part and parcel of the motivating-factor standard, the
employer is allowed to then assert the same-decision affirmative defense.
Hawkins, 929 N.W.2d at 272.
Rumsey relies heavily, indeed almost exclusively, on the timing of
his termination to establish that his request for an interpreter was a
motivating factor when he was terminated within hours after requesting
an interpreter for the meeting with Crivaro. “Generally, more than a temporal connection between the protected conduct and the adverse
employment action is required to present a genuine factual issue on
retaliation.” Kiel, 169 F.3d at 1136; see also Feltmann v. Sieben, 108 F.3d
970, 977 (8th Cir. 1997); Nelson v. J.C. Penney Co., 75 F.3d 343, 346–47
(8th Cir. 1996). The defendants argue that Rumsey was terminated based
on his insubordinate behavior, which would be sufficient to negate reliance
solely on the temporal proximity of the protected activity to the
termination. See Kiel, 169 F.3d at 1136 (“Insulting Ms. Fry and indulging
in an angry outburst in the presence of co-workers, however, were
certainly not [protected], for the ADA confers no right to be rude. Kiel’s
intervening unprotected conduct eroded any causal connection that was
suggested by the temporal proximity of his protected conduct and his
termination.”). The defendants’ argument that requesting an
accommodation following Rumsey’s insubordinate conduct was too little
too late is a valid legal position, but it relies on the jury finding that
Rumsey was fired for engaging in insubordination, a finding apparently
rejected by the jury as the case was presented to it. In reviewing the sufficiency of the evidence following a jury verdict,
we must construe the evidence in the light most favorable to the verdict. 33
See Ludman v. Davenport Assumption High Sch., 895 N.W.2d 902, 909
(Iowa 2017) (“ ‘A directed verdict is required “only if there was no
substantial evidence to support the elements of the plaintiff’s claim.” ’ We
‘view the evidence in the light most favorable to the nonmoving party and
take into consideration all reasonable inferences that could be fairly made
by the jury.’ ” (citation omitted) (quoting Pavone, 801 N.W.2d at 487)).
Here, Rumsey testified that he did not engage in the behavior claimed by
Mallaney and Coppock. Leaving credibility determinations to the jury, the
alleged insubordinate behavior cannot, as a matter of law, defeat the inferences from the temporal relationship between the request and the
termination.
The record presented at trial provides only limited evidence to
support a finding that Rumsey’s request for a sign language interpreter
motivated his termination. Rumsey focused on proving that his
termination was motivated by his request for a sit-down restriction, which
was the topic to be discussed at the meeting for which he requested the
interpreter—the meeting that never happened. While characterizing the
events differently, all parties presented significant evidence that Rumsey’s
termination was caused by the disagreement over his request for a sit-
down restriction, whether by improper retaliation, as Rumsey claimed, or
by Rumsey’s insubordinate response, as the defendants claimed. Further,
Rumsey admitted that Windsor had previously provided an interpreter
when requested for similar meetings, lessening the plausibility of any
inference that it was the request for an interpreter rather than the dispute
over the sit-down restriction that motivated Rumsey’s termination. See
Kiel, 169 F.3d at 1136 (holding employee failed to present triable issue on claim employer terminated his employment in retaliation for his request
for a TDD where “he had requested a TDD on numerous occasions, but he 34
suffered no adverse employment action until he engaged in abusive,
derogatory conduct towards his employer”).
Nonetheless, we cannot say as a matter of law that the jury could
not have found that Rumsey’s request for an interpreter was not a
motivating factor in his termination. While temporal proximity is generally
insufficient alone to establish the causal connection, Rumsey was fired
within hours of requesting an interpreter for a meeting with Crivaro, a
meeting that was cancelled after Rumsey was fired instead of being
provided with the meeting and requested interpreter. Rumsey had also made clear to Coppock and Mallaney that he was going home and would
not return for the meeting unless they got an interpreter, questioning their
ability to provide one.
As the case was presented and instructed to the jury, we cannot tell
whether the jury found retaliation based on the request for a sit-down
restriction, the request for an interpreter, or both. As such, we must
reverse and remand for a new trial, limited to Rumsey’s failure-to-
accommodate and retaliation claims related to requesting a sign language
interpreter. See Alcala, 880 N.W.2d at 710; Erickson, 485 N.W.2d at 86.
E. Individual Liability Under the ICRA. The defendants are
entitled to judgment on all claims except Rumsey’s failure-to-
accommodate and retaliation claims premised on requesting an
interpreter. While both parties raised a number of additional issues on
appeal, we need not address the other issues that are mooted or not likely
to arise in the same manner in a new trial. The parties both raise claims
related to damages, which are mooted by our opinion. Any damages
awarded on remand will be assessed in light of the evidence presented at the new trial. The evidentiary issues raised by both parties involve
discretionary calls by the trial court, and to the extent they may arise 35
again, admissibility of the challenged evidence will depend on its relevance
to the remaining claims limited to the request for an interpreter. However,
the issue of individual liability will arise again on retrial, so we address
that issue.
Mallaney and Coppock argue that the district court erred in refusing
to instruct the jury on their individual liability and provide a line on the
verdict form separate from Windsor’s liability. First, they ask us to limit
individual liability under the ICRA to supervisory employees, which they
define narrowly as those with final decision-making authority. Second, they argue that even if they could be subject to individual liability under
the ICRA, their liability must be assessed independently of each other and
of Windsor as Rumsey’s employer.
Taking the issues in the reverse order, we agree individual liability
must be assessed separately. Rumsey argues that the district court need
not distinguish between Windsor and the individual defendants because
Windsor can only act through its employees. While true, the opposite is
not also necessarily true. Rumsey essentially argues for a reverse-
vicarious-liability theory, which we reject, particularly where there is more
than one individual defendant. An individual defendant facing liability
under the ICRA is entitled to an individualized assessment of their liability
and a separate line on the verdict form.
With respect to whether these individuals may be personally liable,
we start with the premise that chapter 216 extends individual liability at
least to supervisors, which we know from Vivian v. Madison, 601 N.W.2d
872, 872 (Iowa 1999) (answering a certified question from federal district
court expressly limited to whether a supervisory employee could be subject to personal liability for employment discrimination under section 216.6).
As we explained in Vivian, the Iowa general assembly’s “use of the words 36
‘person’ and ‘employer’ in section 216.6(1), and throughout the chapter,
indicates a clear intent to hold a ‘person’ subject to liability separately and
apart from the liability imposed on an ‘employer.’ ” Id. at 878. Our
extension of liability to individuals who are not also the employer was
supported by both the broad scope of chapter 216, see id. at 874
(discussing “section 216.18, which states that the chapter should be
construed broadly to effectuate its purposes”), as well as the aiding-and-
abetting provision of section 216.11(1), which indicated the general
assembly intended chapter 216 liability to extend further than Title VII, which had no comparable provision, see id. at 873–74. We have not
addressed individual liability under ICRA beyond Vivian.
Mallaney and Coppock ask us to limit chapter 216 liability to
supervisory employees with decision-making authority over employment
actions involving the plaintiff, relying on federal caselaw construing
section 216.6. See, e.g., Erickson–Puttmann v. Gill, 212 F. Supp. 2d 960,
976 (N.D. Iowa 2002) (“The Nelson decision, and the Iowa Supreme Court’s
decisions underlying it, are in keeping with the express language of Iowa
Code § 216.6(1)(a) which limits discriminatory acts to acts which imply
that the actor has decision making authority over employment actions.”);
Nelson v. Wittern Grp., Inc., 140 F. Supp. 2d 1001, 1009 (S.D. Iowa 2001)
(“Before an individual may be found liable under Iowa civil rights law, he
or she must be found to have ‘control [of] the company’s hiring decisions.’ ”
(alteration in original) (quoting Vivian, 601 N.W.2d at 876)). Rumsey
argues that individual liability applies broadly to “persons” when they in
any way “discriminate in employment.” See Iowa Code § 216.6(1)(a). As
discussed below, individual liability is neither quite as limited as the defendants suggest nor as broad as Rumsey urges. 37
We start with the language of the ICRA, which makes it a
discriminatory practice for
[any p]erson . . . to discharge any employee, or to otherwise discriminate in employment against . . . any employee because of the . . . disability of such applicant or employee, unless based upon the nature of the occupation.
Id. The ICRA retaliation provision similarly makes it a discriminatory
practice for
[a]ny person to . . . retaliate against another person in any of the rights protected against discrimination by this chapter because such person has lawfully opposed any practice forbidden under this chapter . . . .
Id. § 216.11(2). While the statutory language applies broadly to “any
person,” it also has limiting language. With respect to the failure-to-
accommodate claim, the individuals must have “otherwise discriminate[d]
in employment against . . . [the] employee,” which means they must have
engaged in discriminatory conduct that resulted in an adverse
employment action. Id. § 216.6(1)(a); see also Casey’s Gen. Stores, Inc.,
661 N.W.2d at 521. With respect to the retaliation claim, the individuals
must have “retaliate[d] . . . in any of the rights protected against
discrimination,” which means they must have engaged in retaliatory
conduct, in response to the plaintiff’s protected activity, that materially and adversely injured or harmed the plaintiff. Haskenhoff, 897 N.W.2d at
582, 587–88 (quoting Iowa Code § 216.11(2) (2011)).
We reject the defendants’ attempt to limit individual liability to
supervisors. The “any person” language is not limited by title. While a
supervisor may have the ability to alter the terms of a subordinate’s
employment, that is neither sufficient nor necessary to create liability. See, e.g., Hill, 737 F.3d at 1216 (holding supervisor who fired plaintiff was
not individually liable under Fair Labor Standards Act for plaintiff’s 38
complaint about failure to pay for accrued compensation time; although
supervisor fired plaintiff, supervisor was not responsible for making
compensation decisions following termination). Rather, it is the
individual’s ability to effectuate the adverse employment action at issue
that can subject them to personal liability. See Neppl v. Wells Fargo Bank,
No. 4:19–CV–00387–JAJ, 2020 WL 3446280, at *3 (S.D. Iowa Mar. 27,
2020) (construing “Iowa law [as] stating that a person must be in a position
to effectuate an employment practice to be held liable” under Iowa Code
section 216.6(1)(a)). In Neppl v. Wells Fargo Bank, a former employee who had previously been terminated while on maternity leave applied for an
open position with her former employer through a recruiter. Id. at *1.
When she was passed over for the position, she sued both the former
employer and her former supervisor for violating the ICRA, alleging they
retaliated against her for previously complaining about pregnancy and sex
discrimination—the employer by failing to rehire her and the former
supervisor by giving her a negative reference. Id. The district court
granted the supervisor’s motion to dismiss, concluding the plaintiff failed
to allege the former supervisor “was in a position to control Wells Fargo’s
employment decision.” Id. at *3–4. “Rather, a third party asked for her
opinion, [the former supervisor] gave it, and the third party made the
hiring decision.” Id. at 3. Absent an allegation that the former supervisor
had an ability to effectuate the adverse employment action, in that case
the hiring decision, she could not be held individually liable. See id.
This focus on the ability to effectuate the particular employment
decision at issue is supported by Sahai v. Davies, involving a physician
who performed a preemployment physical and recommended the employer not hire the pregnant applicant for a factory job. 557 N.W.2d 898, 900
(Iowa 1997) (en banc). We held that the physician’s recommendation did 39
not give rise to a claim of discriminatory conduct against him or his clinic
under the “any person” language of section 216.6(1)(a). Id. at 901. Though
the recommendation may have caused the prospective employer’s decision
not to hire the plaintiff, in the sense that the recommendation contributed
to the decision, it was insufficient to hold the physician liable where the
physician served only an advisory role. See id. The physician was not
responsible for the hiring decision but was only asked to provide his
independent medical judgment to assist the employer in making the hiring
decision. See id. The employer was still responsible for the hiring decision. See id.
At the same time, we do not construe “any person” so strictly that it
is limited to only those with final decision-making authority, as the
defendants argue. The cases the defendants rely on are not as narrow as
the defendants suggest. In Nelson v. J.C. Penney Co., the district court
granted summary judgment on a claim against the employer’s general
counsel where the evidence established only that the general counsel was
present during the meeting when the decision was made to terminate the
plaintiff and advised the decision-maker about potential legal problems
from eliminating the plaintiff’s position, but there was no evidence the
general counsel “controlled the company’s decision.” Nelson, 140 F. Supp.
2d at 1010–11. That’s not to say the individual had to have total control.
It was the general counsel’s “ ‘advisory’ role, without more,” that precluded
individual liability. Id. at 1010 (quoting Sahai, 557 N.W.2d at 901).
To be liable, the individual must also be personally involved in
conduct that alters the terms or conditions of the employee’s employment.
See, e.g., Powell v. Yellow Book USA, Inc., 445 F.3d 1074, 1079 (8th Cir. 2006) (assuming without deciding that ICRA could impose liability on
nonsupervisory coworkers but affirming summary judgment where 40
plaintiff failed to show coworker’s conduct altered terms of plaintiff’s
employment). This approach is consistent with application of similar
retaliation provisions in other states. See, e.g., Lewis v. Roosevelt Island
Operating Corp., 246 F. Supp. 3d 979, 984–85, 989, 992 (S.D.N.Y. 2017)
(holding individual liability for retaliation under New York Executive Law
section 296(6) may be imposed to the extent the individual was personally
involved in prohibited conduct and allowing claim by general counsel of
company against president of company who fired him after he complained
to board of directors about president’s racially discriminatory conduct but dismissing claims against coworkers absent allegations of coworkers’
involvement in termination); Martin v. Irwin Indus. Tool Co., 862 F. Supp.
2d 37, 38 (D. Mass. 2012) (rejecting coworker’s assertion that retaliation
provision in Massachusetts General Law chapter 151B, section 4(4) is
limited to persons who exercise similar degrees of authority as employers
as contrary to plain language of provision, making it unlawful for “any
person . . . to discharge, expel or otherwise discriminate against any
person because [she] has opposed any practices forbidden under this
chapter” (alteration in original) (quoting Mass. Gen. Laws ch. 151B,
§ 4(4))); EEOC v. Fred Fuller Oil Co., 134 A.3d 17, 18, 22 (N.H. 2016)
(answering certified question as to whether employee can be individually
liable under New Hampshire civil rights act and holding “any person who
retaliates against another person in the workplace because he or she has
taken any of the specified protected actions is liable, under [Revised
Statutes Annotated of the State of New Hampshire section] 354–A:19, for
an unlawful discriminatory practice”). The focus is not on the individual’s
title or generalized authority over employment decisions but on the individual’s personal involvement and ability to bring about the challenged
discriminatory action. 41
We conclude that an individual who is personally involved in, and
has the ability to effectuate, an adverse employment action may be subject
to individual liability for discrimination under section 216.6 or retaliation
under section 216.11(2), assuming the other elements of each claim are
satisfied with respect to the individual defendant. Whether an individual
has the requisite involvement and ability to effectuate the challenged
adverse action will depend on the facts of the particular case.
We reject Mallaney’s and Coppock’s argument that they are entitled
to judgment as a matter of law on the basis that neither had final decision- making authority to terminate Rumsey. That said, we express no
judgment on the viability of the claims remaining in this case related to
the request for an interpreter against either Mallaney or Coppock. On
remand, the trial court should have the opportunity to apply the standard
set in this case in the first instance.
Whether Mallaney or Coppock are individually liable must be based
on findings by a jury that each of them was sufficiently involved in, and
had the ability to effectuate, the challenged adverse action. If the
individual defendants remain in the case for trial, then they are entitled to
appropriate jury instructions and separate lines on the verdict form.5
5To that end, we acknowledge Judge Bennett’s warning that the litigation strategy of naming individual defendants alongside a corporate employer is a risky one. See Blazek v. U.S. Cellular Corp., 937 F. Supp. 2d 1003, 1027 n.9 (N.D. Iowa 2011) (“I question the wisdom of plaintiffs routinely naming individual defendants in employment discrimination cases, even if they can allege a plausible factual basis for doing so. . . . When the day of reckoning approaches, the vast majority of plaintiffs’ lawyers recognize the substantial risk that even if they win, juries will find against the individual defendants and either exculpate the alleged corporate wrong-doer or allocate most if not all of the damages to the individuals who are often judgement proof.”). This may explain the dearth of cases holding an individual liable under chapter 216. 42
IV. Conclusion.
The defendants are entitled to judgment as a matter of law on each
of Rumsey’s disability discrimination claims except Rumsey’s claims for
failure to accommodate and retaliation premised on his request for a sign
language interpreter. The district court’s denial of the defendants’ motion
for directed verdict is reversed as to each of Rumsey’s other claims, and
the case is remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
Related
Cite This Page — Counsel Stack
Ronald Rumsey v. Woodgrain Millwork, Inc. d/b/a Windsor Windows and Doors, Liz Mallaney, and Clay Coppock, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ronald-rumsey-v-woodgrain-millwork-inc-dba-windsor-windows-and-doors-iowa-2021.