Luann Huss v. State ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 16-2145
Filed February 6, 2019
LUANN HUSS,
Plaintiff-Appellee,
vs.
THE STATE OF IOWA and IOWA STATE UNIVERSITY OF SCIENCE AND
TECHNOLOGY,
Defendants-Appellants.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell,
Judge.
Defendants appeal from the grant of a motion for judgment notwithstanding
the verdict. REVERSED AND REMANDED.
Thomas J. Miller, Attorney General, and George A. Carroll, Assistant
Attorney General, for appellants.
David Albrecht, Brooke Timmer (until withdrawal), and Whitney Judkins
(until withdrawal) of Fiedler & Timmer, P.L.L.C., Johnston, for appellee.
Heard by Mullins P.J., McDonald, J., and Danilson, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
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MCDONALD, Judge.
The State of Iowa and Iowa State University (herein collectively referred to
as ISU) appeal from the entry of judgment notwithstanding the verdict (JNOV) in
favor of former employee Luann Huss on her claims of disability discrimination and
failure to accommodate.
Huss worked for ISU in various positions from 1986 to 2014. In 2006, Huss
began to regularly experience a runny nose, dry eyes, fatigue, and headaches.
She attributed these conditions to her work environment. By 2010, Huss’s
symptoms worsened, and she also experienced pain in her teeth and jaw, tingling
and numbness around her lips, a raspy voice, and heavy breathing. After bringing
her difficulties to a supervisor’s attention, ISU conducted air-quality testing in 2010
and 2011 in her work area. These tests revealed a normal amount of mold when
compared to mold levels outdoors. In an effort to improve Huss’s work
environment, ISU dusted, vacuumed, cleaned the office, and hired a company to
clean the air handling unit and vacuum the air ducts. In September 2012, ISU
conducted further testing for mold and volatile organic compounds. The test
results were normal and consistent with other university buildings.
Despite ISU’s efforts, Huss continued to suffer from her symptoms. ISU
undertook additional remediation efforts totaling $30,000. During the remediation,
Huss relocated to another office space. Upon completion of the remediation
efforts, Huss moved back into her office for a couple of days before requesting a
respirator. She was provided a half-mask respirator.
Huss received treatment from a physician during this time period. Huss’s
physician described Huss’s impairment as “severe allergies to mold spore
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exposure” and recommended that Huss “indefinitely” move offices to a building
without mold and wear “protective gear when exposure occurs.” Upon her
physician’s recommendation, Huss was placed on medical leave in October 2013.
Huss returned to work on January 2, 2014 and was there for less than two hours
before she suffered a severe reaction. She was again placed on medical leave
until April 5, 2014. Around this time, she applied for long-term disability benefits.
In support of this claim, Huss’s physician indicated, for the first time, Huss
“developed Multiple Chemical Sensitivity,” also called “Toxicant Induced loss of
Tolerance.” The physician also made recommendations to ISU: “In view of Luann
Huss’ severe disabling environmental allergy, I recommend that her office be
moved, and she be relocated to an area that does not seem to trigger acute
reactions.” The physician never submitted any documentation of disability forms.
Huss ran out of accrued leave on March 13, 2014 and failed to return to
work. Subsequently, ISU terminated Huss’s employment.
Huss filed an action for disability discrimination, failure to accommodate,
and retaliation. Following a seven-day jury trial, Huss moved for directed verdict,
which the district court denied. The jury then returned a unanimous verdict in favor
of ISU on all three claims. Huss filed a motion for JNOV and new trial. The district
court granted the motion for JNOV, concluding Huss proved each element of her
disability-discrimination and failure-to-accommodate claims and that no
reasonable mind could differ as to the findings on each element based on the
evidence presented. The district court relied heavily on the testimony of Peter
Englin, director of the Department of Residence. The court called Englin’s
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testimony “as close to a Perry Mason moment as I have seen in 27 years of the
practice of law.” The relevant testimony was as follows:
Q. Are you aware [Huss] asked to be moved to Friley to be in the
same building as you? A. No, but . . .
Q. That could have been— A. It seems –
Q.—a reasonable—could that have been a reasonable
accommodation if it was important that she be close to you and able
to respond. A. Yes.
Q. So she could have been reasonably accommodated by being
relocated to Friley Hall? A. I believe so, yes.
Q. And then that would have enabled her to continue working with
her team, would have been a minute away, in Helser? A. Yes.
Q. So why did you refuse to place her in Friley? A. As I shared, I
didn’t know that she requested to be in Friley. And as I understand,
when a request came in about office space—because we are
continually looking at locations to house folks—the two spaces we
had: One was a storage room and the other was across from the
men’s restroom.
Later it continued:
Q. So as of the time you fired her and insisted that you could not
relocate her, you just told this jury she could have been placed in
Friley Hall? A. Yes
Q. And that would have been a reasonable accommodation? A. In
my opinion, yes.
After granting the motion for JNOV on the disability-discrimination and failure-to-
accommodate claims, the court ordered a new trial on the limited issue of
damages. ISU timely appealed; the new trial to determine damages has been
stayed pending this appeal.
“The purpose of [JNOV] is to allow the district court an opportunity to correct
any error in failing to direct a verdict.” Easton v. Howard, 751 N.W.2d 1, 4 (Iowa
2008). “We . . . review a district court ruling on a motion for judgment
notwithstanding the verdict for correction of errors at law.” Thornton v. Am.
Interstate Ins. Co., 897 N.W.2d 445, 460 (Iowa 2017) (quoting Gibson v. ITT
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Hartford Ins., 621 N.W.2d 388, 391 (Iowa 2001)). “Our role is to decide whether
there was sufficient evidence to justify submitting the case to the jury when viewing
the evidence in the light most favorable to the nonmoving party.” Smith v. Iowa
State Univ. of Sci. & Tech., 851 N.W.2d 1, 18 (Iowa 2014) (quoting Van Sickle
Constr. Co. v. Wachovia Commercial Mortg., Inc., 783 N.W.2d 684, 687 (Iowa
2010)). “Every legitimate inference which can be reasonably made from the
evidence is considered, and if reasonable minds can differ on the issue, it is for the
jury to decide.” Thacker v. Eldred, 388 N.W.2d 665, 670 (Iowa Ct. App. 1986)
(quoting Blong v. Snyder, 361 N.W.2d 312, 315 (Iowa Ct. App. 1984)).
Simply put, we ask, was there sufficient evidence to generate a jury
question? These are the same principles that the district court is
bound to follow on a motion for directed verdict.
Under this view of the evidence, if there is substantial
evidence to support the claim or defense, the motion for directed
verdict or for judgment notwithstanding the verdict should be denied.
Conversely, without such evidence, a directed verdict or judgment
notwithstanding the verdict is appropriate. Evidence is substantial
when a reasonable mind would accept it as adequate to reach a
conclusion.
Johnson v. Dodgen, 451 N.W.2d 168, 171 (Iowa 1990) (citations omitted).
Because entry of JNOV is only appropriate when a reasonable fact-finder could
only reach one conclusion from the presented evidence, it should be granted only
in rare circumstances.
The jury was provided with the following instruction on disability
discrimination:
Your verdict must be for Plaintiff Luann Huss and against
Defendants State of Iowa and Iowa State University on Plaintiff’s
claim of disability discrimination if all of the following elements have
been proved by the preponderance of the evidence:
First, Plaintiff suffered from an impairment;
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Second, Plaintiff’s impairment substantially limited her in one
or more major life activities;
Third, Defendants terminated Plaintiff’s employment;
Fourth, at the time of her termination, Plaintiff could have
performed the essential functions of her job with or without
reasonable accommodations;
Fifth, Plaintiff’s impairment was a motivating factor in the
Defendants’ decision to terminate her employment.
If Plaintiff failed to prove any of these elements, you must find
in favor of Defendants on her claim of disability discrimination. If
Plaintiff proved all of these elements, you must find in favor of Plaintiff
on this claim and consider her claim for damages.
The jury was also instructed as follows on Huss’s reasonable accommodation
claim:
In order for Plaintiff Luann Huss to recover on her claim of
failure to provide a reasonable accommodation for her disability, she
must prove all of the following propositions by a preponderance of
the evidence:
1. Plaintiff had an impairment;
2. Plaintiff’s impairment substantially limited her ability to
perform a major life activity;
3. Defendants knew of the Plaintiff’s impairment;
4. Plaintiff could have performed the essential functions of
the job of Program Coordinator II at the time Defendants
terminated her employment if Plaintiff had been provided
with an accommodation of:
a. Moving her to a different office;
b. Closing the air loop in her office in Helser Hall;
c. Providing her a respirator;
d. Restructuring her job; or
e. Providing assistance to find her another position
with ISU;
5. The requested accommodation would have been
reasonable; and
6. Defendants failed to provide a reasonable
accommodation identified by Plaintiff and failed to
provide any other reasonable accommodation.
If Plaintiff failed to prove any of these elements, you must find
in favor of Defendants on her claim of disability discrimination. If
Plaintiff proved all of these elements, you must find in favor of Plaintiff
on this claim and consider her claim for damages.
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For the purposes of this appeal, these instructions are the law of the case. See In
re Estate of Workman, 903 N.W.2d 170, 175 (Iowa 2017).
When we review the entirety of the evidence submitted to the jury in the
light most favorable to ISU, we conclude reasonable minds could reach differing
conclusions regarding both causes of action. As a result, Huss failed to prove her
claims as a matter of law and entry of JNOV was in error. See State v. Keding,
553 N.W.2d 305, 308 (Iowa 1996).
Although there was a fact question on many of the issues submitted to the
jury, for the purposes of fleshing out our conclusion, we choose to focus on the
reasonable accommodation element of both marshaling instructions. The jury was
instructed:
A “reasonable accommodation” is a modification to the work
place which allows a person with a disability to perform the essential
functions of the job or allows a person with a disability to enjoy the
same benefits and privileges as an employee without a disability. An
accommodation is unreasonable if it imposes an undue hardship on
the operation of the employer’s business.
....
An employer is not required to give an employee the
accommodation she preferred. The employer’s obligation is to
provide a reasonable accommodation that allows the employee to
perform the essential functions of her job.
Unlike the district court, we cannot conclude the “Perry Mason” moment
entitled Huss to JNOV. First, it seems to us that Englin’s statement was made in
the context of whether the move to Friley Hall would have impaired Huss’s ability
to work with her team and not whether the move would have addressed all of
Huss’s concerns. The jury certainly could have concluded the same. Second, the
jury was free to conclude Englin’s opinion was not more relevant on this issue than
that of other witnesses, including both Huss’s direct supervisor and Huss’s
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subordinate. Huss’s direct supervisor testified that he did not believe Huss could
be relocated and still carry out her job duties. Specifically, he noted the importance
of having his subordinates in the same office location for impromptu discussions
and meetings on construction projects. He discussed how Huss’s position entailed
rapidly responding to certain concerns, and he explained that relocating Huss
would hinder rapid responses. He testified although it would be possible to
communicate with Huss in a different building, it was not an efficient use of his time
or his staff’s time. He testified that Huss’s office in Helser Hall did not test any
differently for mold or other substances than any of the possible relocation areas.
Huss’s subordinate testified that when Huss was temporarily relocated out of
Helser Hall it required more effort for the subordinate to do her job. She also
testified that the Helser team was highly collaborative and she worked with the
individuals in Helser “Multiple times a day. Pretty much every day.” Third, another
employee, who worked out of Friley Hall, testified Huss suffered an allergic
reaction in her Friley office, calling into question whether a move to Friley would
have resolved Huss’s physical reactions to her workplace. We find the jury
reasonably could have relied on the above-mentioned testimony to conclude
moving Huss to Friley Hall was not a reasonable accommodation. Taken together,
this evidence establishes it was erroneous for the district court to impose liability
as a matter of law based solely on Englin’s testimony.
There is also significant support in the record for the jury to find no
accommodation would have allowed Huss to perform the essential functions of her
job. See, e.g., Gaul v. Lucent Tech. Inc., 134 F.3d 576, 581 (3d Cir. 1998)
(affirming summary judgment on failure-to-accommodate claim in favor of
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employer where proposed accommodation was impractical burden on employer).
First, throughout the accommodation process, Huss claimed she had a severe
mold allergy. According to her treating physician, “[e]xposure to minute amounts
of mold in [the] workplace” would result in Huss having a “profound allergic
response.” “Indefinitely” moving Huss’s office to a “building without mold” was her
physician’s suggested accommodation. On Huss’s final documentation of
disability form, the physician listed Huss’s impairment as “severe allergies mold
spore exposure” and explained Huss was “[c]urrently unable to tolerate any mold
exposure.” It was not until days before Huss ran out of approved leave that she
submitted a letter from another doctor labeling her condition as a “severe disabling
environmental allergy” with no mention of mold. In a separate application for long-
term disability benefits, this second physician labeled Huss’s condition “Multiple
Chemical Sensitivity.” Huss’s treating physician testified when an individual has
multiple chemical sensitivity syndrome “the things [he/she is] sensitive to [are]
really not always identifiable” and an employer would not be able to test for minute
amounts of mold. Given the testimony and recommendations made by Huss’s
physicians, it appears ISU had no way to effectively identify Huss’s triggers in her
work environment.
This inference is further supported by evidence that Huss experienced
symptoms nearly everywhere. Huss acknowledged she “had issues in probably
every building that belongs to the department of residence.” Many of the reaction
areas tested at normal mold levels. Huss testified she had similar reactions at the
state fair; Younkers; Wal-Mart; Bed, Bath & Beyond; the Baltimore airport; the
Boone County police station; and the Chicago airport. A doctor’s note from
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September 2013 reported Huss as saying “she is pretty sure that it does not really
matter where or what she does for work or even if she does not work, she will still
have misery because she has had reactions in stores and in areas outside of her
work place.”
Second, evidence presented established that a mold-free building is an
impossibility. Two experts testified that no environment is mold free. Huss herself
agreed ISU could not provide a mold-free work environment. Further, a human
relations consultant reiterated that ISU “cannot disregard those [medical]
recommendations/restrictions” instructing Huss was unable to tolerate any mold
exposure. The consultant testified that ISU could not jeopardize Huss’s health and
safety by placing her in a workspace containing any amount of mold.
Third, evidence illustrated the extensive mold and environmental testing
and remediation conducted by ISU in an effort to improve Huss’s work
environment. ISU conducted years of testing and remediation in an effort to aide
Huss. Further, those tests showed there was no significant difference from a mold-
spore-testing standpoint between Friley Hall and Huss’s Helser office. ISU also
completed other testing, which analyzed volatile organic compounds and
particulate amounts in an attempt to pinpoint a specific issue. These test results
were never problematic. An independent expert testified that the testing completed
by ISU “was pretty complete.” The expert stated, “I think for this number of years,
they did an awful lot. I’ve never been asked to do this much for a particular client
on one case ever, really. So they did a lot more than we would ever do, probably.”
Huss herself testified about the extensive remediation efforts undertaken in her
office including: repeated mold and VOC testing, air duct cleaning, removing air
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duct lining that could facilitate mold, air handling unit cleaning, and replacing ceiling
tiles and carpet. She was also provided a half-mask respirator and an air purifier.
Her coworkers modified their activities by rescheduling campus-wide meetings to
rooms with low mold levels and authorizing Huss to avoid certain rooms on facility
tours.
Taken together, the jury could have relied on this evidence to reasonably
conclude no possible reasonable accommodation would have allowed Huss to
perform the essential functions of her job. The district court erred in concluding
reasonable minds could not differ on the issue when the evidence is viewed in the
light most favorable to ISU.
In addition to this element, there are other elements on which there is
evidence to support the jury’s verdict. For example, in support of her disability
discrimination claim, Huss was required to prove her “impairment was a motivating
factor in the Defendants’ decision to terminate her employment.” We cannot say
Huss proved this element as a matter of law; there is substantial evidence in the
record that ISU thought Huss was an outstanding employee and did everything it
could to continue to employ her. ISU terminated Huss’s employment only when
she had no leave and could not return to work.
For these reasons, we conclude the district court erred in granting Huss’s
motion for judgment notwithstanding the verdict. We reverse the judgment of the
district court and remand this matter for reinstatement of the jury’s verdict.
REVERSED AND REMANDED.