Megan Sedlacek v. the University of Iowa and State Board of Regents ( 2017 )

IN THE COURT OF APPEALS OF IOWA
No. 16-1200
Filed June 21,2017
MEGAN SEDLACEK,
Plaintiff-Appellant,
vs.
THE UNIVERSITY OF IOWA and STATE BOARD OF REGENTS,
Defendants-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Johnson County, Marsha A.
Bergan, Judge.
Megan Sedlacek appeals from the district court order granting summary
judgment in favor of the defendants on her claims of disability discrimination and
retaliation. AFFIRMED.
Heather L. Carlson of McDonald, Woodward & Carlson, P.C., Davenport,
for appellant.
Thomas J. Miller, Attorney General, and George A. Carroll and Tyler M.
Smith (until withdrawal), Assistant Attorneys General, for appellees.
Considered by Vogel, P.J., and Doyle and McDonald, JJ.
2
DOYLE, Judge.
Megan Sedlacek appeals from the district court order granting summary
judgment in favor of the University of Iowa1 on her claims of disability
discrimination and retaliation. She contends the district court erred in
determining the undisputed facts entitle the defendants to judgment as a matter
of law. Even when the facts are viewed in the light most favorable to Sedlacek,
we conclude she failed to generate a genuine issue of material fact regarding
whether she was a “qualified individual.” Because Sedlacek failed to meet that
requisite ground for her disability discrimination claim, the district court did not err
in granting summary judgment in favor of the University on Sedlacek’s disability
discrimination claim. Similarly, the district court did not err in granting summary
judgment in favor of the University on Sedlacek’s retaliation claim. Accordingly,
we affirm.
I. Background Facts and Proceedings.
The University of Iowa (University) hired Sedlacek in 2006 to work as a
custodian. The University’s attendance guidelines sets forth the following
expectations:
Facilities Management staff are expected to maintain a
regular work schedule. All staff members are expected to
contribute their fair share toward accomplishing the work
undertaken by the department. This is the basis on which they
were initially hired and the basis upon which they are compensated.
The department has work obligations and responsibilities and
expects all staff members in the department to contribute in the
performance of this work. Unless staff members are in attendance
at work, they cannot fulfill their responsibility toward completing
their fair share of the work.
1
Sedlacek also named the Iowa Board of Regents as a defendant, but for simplicity, we
will refer to refer to the defendants collectively as the University.
3
The guidelines provide that each employee’s attendance is reviewed on a
quarterly basis, and establish a standard of two occurrences and two days per
quarter as the threshold over which additional absences may be considered
excessive.2 Each recorded absence constitutes a day of absence. The
guidelines set out a system of seven steps of discipline for staff members who
experience excessive absence, beginning with a counseling session as the first
step and increasing to a five-day suspension as the sixth step. The seventh step
of the guidelines state the staff member’s employment with the University may be
terminated.
A collective bargaining agreement also governed the terms of Sedlacek’s
employment at the University. With regard to leaves of absence without pay, the
agreement states in part:
Section 3 Leaves of Absence Without Pay
Except as otherwise provided in this Article, employees may
be granted leaves without pay at the sole discretion of the
Appointing Authority for any reason for a period of up to but not
exceeding one (1) year. Upon request, the leave may be extended
for not more than one (1) additional year.
....
D. Medical Leaves of Absence
1. Employees with at least one (1) year of seniority who have
exhausted their sick leave benefits shall be granted an unpaid
leave of absence not to exceed ninety (90) calendar days, provided
the illness or injury exceeds ten (10) days and appropriate medical
verification is submitted. Upon request of the employee, extensions
may be granted for up to ninety (90) day increments not to exceed
a total of one (1) year. Such leaves may not be unreasonably held.
2
An “absence” is defined as any instance where a staff member is unable to work due to
illness, injury, or medically related disability (excluding exemptions for FMLA leave,
funeral leave, family caregiving leave, absences due to on-the-job-injuries, and any
absences of less than or equal to four hours). An “occurrence” is defined as a
continuous absence from work without interruption. Absence for multiple consecutive
work days constitutes one occurrence.
4
Sedlacek received a written reprimand for excessive absenteeism on
September 4, 2009, due to an unscheduled absence from work on August 7.
She received a one-day unpaid disciplinary suspension on September 15 for an
occurrence of unscheduled absences that occurred from August 24 through
September 4 and an unscheduled absence on September 14. When Sedlacek
missed work again on September 17, she received a three-day unpaid
disciplinary suspension beginning September 18. Then, on September 24,
Sedlacek received a five-day unpaid disciplinary suspension after an
unscheduled absence on the day before.
In December 2009, Sedlacek requested leave under the Family Medical
Leave Act (FMLA) to treat her depression. She provided a certification of a
serious health condition from her health care provider, Dr. Elizabeth Hickman.
Dr. Hickman indicated the condition commenced in late 2007 and its duration as
“intermittent/lifetime.” Specifically, Dr. Hickman stated Sedlacek may experience
episodes of depression “0-3 times per month” with each episode lasting “1-2
days.” Dr. Hickman verified that it is “medically necessary” for Sedlacek to miss
work during an episode of depression because it interferes with her ability to
think clearly and interact with her peers. The University approved Sedlacek for
FMLA leave.
Between July and September 2010, Sedlacek had three occurrences of
being unable to work, missing a total of three days of work. On October 11,
2010, she received a letter stating that she had violated the work rule for
unexcused or excessive absenteeism. Sedlacek was placed on an additional
5
five-day unpaid disciplinary suspension and was warned that “[f]uture work rule
violations or attendance issues, including further unpaid,
unapproved/unscheduled absences may result in further progressive discipline,
including possible suspension or termination.”
On December 20, 2010, Sedlacek was absent from work again. Because
she had not accrued enough sick leave or vacation leave to cover her absence,
she had to use “unpaid, unapproved leave time.” On December 28, 2010, the
University terminated Sedlacek pursuant to its attendance policy. However,
Sedlacek filed a grievance with the union, and the parties signed an agreement
that led to her reinstatement in an April 2011. The agreement provides “that any
absence without pay (AWOP) after the date of this agreement will constitute
grounds for the immediate termination of [Sedlacek]’s employment.”3 The
duration of the agreement, dated April 14, 2011, was eighteen months.
Sedlacek did not have any disciplinary issues in the year that followed.
On her annual review for the period of April 22, 2011, though March 27, 2012,
Sedlacek’s supervisor noted “[h]er attendance for the most part has been
respectable. She has not gone over the Departmental averages this past year.”
On May 24, 2012, Sedlacek injured her back while emptying a wet/dry vac
during her work shift. As a result, she was off of work beginning June 5, 2012.
Sedlacek designated her absence as FMLA leave. On July 30, 2012, the
University notified Sedlacek that she would exhaust her twelve weeks of FMLA
leave on August 14, 2012. The letter sent on that date states, “This letter is to
3
The agreement also specifies that “for purposes of this agreement only, AWOP does
not include and absences covered by FMLA.”
6
inform you that you will not be eligible for FMLA leave for the remainder of the
calendar year.” Because Sedlacek’s physician indicated Sedlacek would be
unable to return to work prior to the exhaustion of her FMLA leave, the letter
informed her “on August 14, 2012, the paid leave used to supplement [her]
income automatically will change over from FMLA sick accruals to non-FMLA
sick accruals.” Sedlacek had no sick leave or vacation leave accrued as of the
date of the letter.
Sedlacek’s treating physician released her to work four-hour shifts with a
lifting restriction of twenty-five pounds beginning September 26, 2012. Her
physician released her to return to eight-hour shifts with a lifting restriction of no
more than thirty-five pounds beginning October 1, 2012. On October 8, 2012,
Sedlacek was absent from work due to her depression. Because she had
exhausted her FMLA leave and had not yet accrued enough sick leave or
vacation leave to cover the full eight hours of her shift, four-and-one-half hours of
her shift was marked as unpaid time. As a result, the University terminated
Sedlacek on October 9, 2012 for violating the terms of the April 2011 settlement
agreement.
Sedlacek filed an action alleging the University and the State Board of
Regents discriminated against her based on her disability and in retaliation for
engaging in statutorily-protected activity. The defendants moved for summary
judgment on both claims. In a thorough, thoughtful, and well-reasoned ruling, the
district court granted summary judgment in favor of the defendants. It is from
that ruling that Sedlacek appeals.
7
II. Scope and Standard of Review.
The appellate courts review rulings on motions for summary judgment for
correction of errors at law. See Homan v. Branstad, 887 N.W.2d 153, 163 (Iowa
2016). If the moving party has shown there is no genuine issue regarding any
material fact, entitling the moving party to judgment as a matter of law, summary
judgment is appropriate. See id. Therefore, our review is limited to two
questions: (1) whether there is a genuine dispute regarding the existence of a
material fact and (2) whether the district court correctly applied the law to the
undisputed facts. See id. at 164.
A fact is material if it may affect the lawsuit’s outcome. See id. There is a
genuine dispute as to the existence of a fact if reasonable minds can differ as to
how the factual question should be resolved. See id. “Even if facts are
undisputed, summary judgment is not proper if reasonable minds could draw
from them different inferences and reach different conclusions.” Walker Shoe
Store v. Howard’s Hobby Shop, 327 N.W.2d 725, 728 (Iowa 1982).
In reviewing summary judgment rulings, we view the record in the light
most favorable to the nonmoving party. See Homan, 887 N.W.2d at 163-64.
This includes drawing all legitimate inferences that the record supports in favor of
the nonmoving party. See id. at 164. The nonmoving party is also given the
benefit of any doubt in determining whether granting summary judgment is
appropriate. See Butler v. Hoover Nature Trail, Inc., 530 N.W.2d 85, 88 (Iowa Ct.
App. 1994).
8
III. Disability Discrimination.
Sedlacek alleges the University discriminated against her with regard to
her employment based on her disability. The Iowa Civil Rights Act (ICRA)
prohibits discrimination in employment based on disability. See Iowa Code §
216.6(1)(a) (2013). To establish a prima facie case of disability discrimination,
Sedlacek must show: (1) she is a person with a disability, (2) she was qualified to
perform the job either with or without an accommodation for her disability, and (3)
she suffered an adverse employment decision because of her disability. See
Casey’s Gen. Stores, Inc. v. Blackford, 661 N.W.2d 515, 519 (Iowa 2003). If
Sedlacek fails on any one ground, her claim of disability discrimination fails. The
district court found that Sedlacek’s claim fails on all three grounds.
A. Whether Sedlacek is a qualified employee.
Since it is dispositive of the disability discrimination claim issue, we begin
our analysis with the “qualified individual” element of the claim. Sedlacek argues
the district court erred in finding she failed to provide any evidence to show she is
a qualified employee under the ICRA. A qualified employee is one who can
perform the essential functions of a position with or without reasonable
accommodation. See Goodpaster v. Schwan’s Home Serv., 849 N.W.2d 1, 14
(Iowa 2014).
The district court held that even if Sedlacek was a person with a disability
under the ICRA, she could not generate a fact question as to whether she was
qualified to perform her job at the University, with or without accommodation. It
noted that Sedlacek admitted she had difficulty meeting the attendance
requirements of the position from the time she was hired until the time she was
9
terminated, and cited the testimony of University representatives regarding
Sedlacek’s failure to meet the attendance expectations for her position. Citing
Brannon v. Luco Mop Co., 521 F.3d 843, 849 (8th Cir. 2008), the district court
stated the obvious—that “regular attendance at work is an essential function of
employment.”
In Iowa, chronic absenteeism prevents a person from
performing the essential function of regularly attending work.
Falczynski [v. Amoco Oil Co.], 533 N.W.2d [226,] 232 [(Iowa 1995)].
Other jurisdictions agree that attendance is an essential function of
most jobs. Cf. Wimbley v. Bolger, 642 F. Supp. 481, 485 (W.D.
Tenn.1986) (one who does not come to work cannot perform any of
his job functions, essential or otherwise); Carr v. Reno, 23 F.3d
525, 529 (D.C. Cir. 1994) (regular attendance is an essential
function of a job); Santiago v. Temple Univ., 739 F. Supp. 974, 979
(E.D. Pa. 1990) (an employee of any status cannot be qualified for
his position if he is unable to attend the workplace, because
attendance is necessarily the fundamental prerequisite to job
qualification). In Tyndall, the United States Court of Appeals for the
Fourth Circuit held:
An employee who does not come to work cannot
perform any of [her] job functions, essential or
otherwise. Therefore, a regular and reliable level of
attendance is a necessary element of most
jobs. . . . An employee who cannot meet the
attendance requirements of the job at issue cannot be
considered a “qualified” individual protected by the
ADA.
Tyndall [v. Nat’l Educ. Ctrs. Inc. of California], 31 F.3d [209], 213
[4th Cir. 1994)] (emphasis added) (citations omitted).
Irregular attendance “renders a person unqualified for most
types of employment and thus susceptible to legitimate
termination.” Falczynski, 533 N.W.2d at 232; see also Kinkead v.
Southwestern Bell Tel. Co., 49 F.3d 454, 456 (8th Cir. 1995)
(excessive absenteeism qualifies as a legitimate, nondiscriminatory
reason for plaintiff’s termination). In Higgins v. Iowa Department of
Job Service, 350 N.W.2d 187, 192 (Iowa 1984), we held that
habitual tardiness or absenteeism, particularly after warning that
termination may result if the practice continues, is grounds for one’s
disqualification. Higgins, 350 N.W.2d at 192.
Cole v. Staff Temps, 554 N.W.2d 699, 705 (Iowa 1996).
10
The district court held Sedlacek’s
proposed accommodation, i.e., that she should have been
permitted to work less, despite the fact that from 2006 to 2012,
[Sedlacek] missed all or part of 356 work days, or around five work
days per month simply is not an accommodation that would allow
[her] to perform the essential functions of the job, either before or at
the time of her termination. As the Brannon Court has pointed out,
regular attendance at work is an essential function of employment,
and the U of I Custodian I position required regular attendance as
part of the job requirements. [Sedlacek] was given multiple
opportunities to improve her attendance numbers, and she
remained unable to establish a reliable and regular attendance
pattern. When [Sedlacek] missed work so often, it affected the
working requirements and environment of the other custodians in
the group in which [she] worked. [Sedlacek] cannot show that a
reasonable accommodation was possible, or that the
accommodation would have allowed [her] to perform the essential
functions of the job.
Brannon involved a disability-discrimination claim arising from an
employee’s termination after an extended absence from work due to toe surgery.
521 F.3d at 845. The employee informed her employer on March 16, 2005, that
she expected return to work on April 18. Id. On April 12, the employee provided
her employer with a new return-to-work date of April 26. Id. Then, on April 26,
she informed her employer she would be returning to work on May 23. Id. The
employer terminated the employee on April 26 due to her extended absences
and deficient work quality, citing the strain it caused on the employer’s ability to
meet its production requirements. Id. In affirming the district court’s grant of
summary judgment in favor of the employer, the Eighth Circuit found that the
employee failed to “to show that her request for additional medical leave was a
reasonable accommodation that would permit her to perform the essential
function of regular work attendance.” Id. at 848. The court noted that the ADA
does not require employers to allow their employees unlimited absences and that
11
the employee failed to show that receiving additional time off would have enabled
her to have consistent attendance at work. Id. at 849.4
Brannon does not hold that an absence is never a reasonable
accommodation, however. Although the court held an employee’s open-ended
absence was not a reasonable accommodation under the facts of that case, it
noted that “allowing a medical leave of absence might, in some circumstances,
be a reasonable accommodation.” Id.; see also Hudson v. MCI Telecommc’ns
Corp., 87 F.3d 1167, 1169 (10th Cir. 1996) (stating that “a reasonable allowance
of time for medical care and treatment may, in appropriate circumstances,
constitute a reasonable accommodation”). The question turns on the expected
duration of the employee’s impairment. See Cisneros v. Wilson, 226 F.3d 1113,
1130 (10th Cir. 2000), overruled on other grounds by Bd. of Trs. of Univ. of Ala.
v. Garrett, 531 U.S. 356 (2001). As the Cisneros court explained, an
accommodation is reasonable if it allows an employee to perform the essential
functions of the job at the present or in the near future. See id. at 1129. A
request for indefinite leave cannot constitute “reasonable” accommodation
because it does not allow the employee to perform the essential functions of the
job in the near future. See id. Likewise, a request for indefinite leave prevents
an employer from determining whether the employee will be able to perform the
essential functions of the job in the near future and, accordingly, whether the
accommodation is reasonable. See id. at 1130. For that reason, an employee
4
Because the IRCA and the ADA have common purposes of prohibiting disability
discrimination and share similar terminology, the Iowa Supreme Court has “look[ed] to
the ADA and underlying federal regulations in developing standards under the IRCA for
disability discrimination claims.” See Bearshield v. John Morrell & Co., 570 N.W.2d 915,
919 (Iowa 1997).
12
who fails to provide any evidence regarding the expected duration of impairment
fails to create a triable issue of fact regarding the reasonableness of the
requested leave. See id.The evidence shows that Sedlacek was able to perform the essential
duties of her job when she was not experiencing an episode of depression.
When experiencing a flare-up, Dr. Hickman noted that Sedlacek would be unable
to perform the essential functions of her job for a period of one to two days.
Afterward, Sedlacek was able to return to work and perform the essential
functions of her position. Because Sedlacek’s requested accommodation is in
reality a request for open-ended intermittent absences for an indefinite period of
time, the requested accommodation is not reasonable. Sedlacek has failed to
generate a fact question as to whether she could perform the essential functions
of her position with or without reasonable accommodation. The district court
correctly ruled that, as a matter of law, Sedlacek’s requested accommodations
would not render her “qualified.”
IV. Retaliation.
Sedlacek alleges the University discharged her in retaliation for her
engaging in protected activities—her requesting reasonable accommodations for
her disability and requesting that the University engage in an interactive process
to determine reasonable accommodations. The ICRA also prohibits “retaliat[ing]
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.” Iowa Code § 216.11(2). To establish a prima facie case of
retaliation under the ICRA, Sedlacek must show she was engaged in a statutorily
13
protected activity, the University took adverse employment action against her,
and a causal connection between her participation in the protected activity and
the adverse employment action. See Boyle v. Alum-Line, Inc., 710 N.W.2d 741,
750 (Iowa 2006). Sedlacek alleges the adverse employment action was her
termination and the protected activity she participated in was requesting
accommodation for her disability. Once a prima facie case has been established,
the burden shifts to the University to rebut a presumption of retaliation. See
Estate of Harris v. Papa John’s Pizza, 679 N.W.2d 673, 678 (Iowa 2004).
Sedlacek provided the University with a doctor’s certification that her
disability prevented her from working one to two days during flare-ups, which
could occur up to three times per month. After a workers’ compensation injury
exhausted Sedlacek’s FMLA leave, she requested additional leave or unpaid
time off to accommodate her disability. Janet Gorman, who provides the
University with guidance and direction on disability matters related to
employment and the accommodation process, testified that when employees
need more leave from work than their vacation leave and sick leave accruals
allow, “they can apply for an unpaid leave of absence, and the unpaid leave of
absence is considered to be an accommodation by the department or the
employer to allow someone to recover and return to work.” Sedlacek requested
that the University apply four-and-one-half hours of unpaid leave to her absence
on October 8, but her request was denied. Gorman explained that whether
unpaid leave is a reasonable accommodation depends on “how much time does
an employee need to be absent in order to recover and return to work regularly
and consistently,” but in her opinion, “it is not reasonable to [provide employees
14
with] intermittent unpaid leave.” The University opted to terminate her
employment.
In granting summary judgment in favor of the University on Sedlacek’s
retaliation claim, the district court found:
Even when the facts are viewed in the light most favorable to
[Sedlacek], she simply cannot show any evidence of an adverse
employment action taken by [the University] against [her] that is
causally connected to [her] right to participation in a protected
activity. [The University] took every reasonable step to make
[Sedlacek]’s employment as a Custodian I work out for [Sedlacek],
and [Sedlacek]’s inability to meet the attendance requirements of
the position was the basis for the termination. There is no evidence
in the record to support a finding of retaliatory action on the part of
[the University] against [Sedlacek].
We agree as the record supports the district court’s conclusion. Sedlacek has
failed to generate an issue of material fact as to whether her termination was in
retaliation for her engaging in protected activities.
The district court made no error in granting summary judgment in favor of
the University regarding Sedlacek’s retaliation claim.
AFFIRMED.