Opinion
No. C99-1009 MJM
August 17, 2000
OPINION AND ORDER
INTRODUCTION
Plaintiff Alan Kloft ("Kloft") brought the instant suit against defendant A.Y. McDonald ("McDonald") for violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq. and the Iowa Civil Rights Act ("ICRA"), Iowa Code Chapter 216, as well as two pendent state law claims of retaliatory discharge and fraudulent misrepresentation. In the motion presently before the Court McDonald moves for summary judgment as to all Kloft's claims.
STANDARD FOR SUMMARY JUDGMENT
The Eighth Circuit Court of Appeals recognizes "that summary judgment . . . must be exercised with extreme care to prevent taking genuine issues of fact away from juries." Wabun-Inini v. Sessions, 900 F.2d 1234, 1238 (8th Cir. 1990). A court considering a motion for summary judgment must view all facts in the light most favorable to the nonmoving party and give the nonmoving party the benefit of all reasonable inferences that can be drawn from those facts. See Munz v. Michael, 28 F.3d 795, 796 (8th Cir. 1994); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quotation omitted); Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). The standard for granting summary judgment is well established:
Rule 56. Summary Judgment
(c) . . . The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Fed.R.Civ.P. 56. The moving party bears the "initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record which show lack of genuine issue." Celotex, 477 U.S. at 323. Once the moving party has carried its burden, the opponent must go beyond the pleadings and designate specific facts-by such methods as affidavits, depositions, answers to interrogatories, and admissions on file-that show that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324. To avoid summary judgment, the nonmoving party does not have to provide direct proof that genuine issues of fact exist for trial, but the facts and circumstances that the nonmoving party relies upon must "attain the dignity of substantial evidence and must not be such as merely to create a suspicion." Metge v. Baehler, 762 F.2d 621, 625 (8th Cir. 1985). In essence, the evidence must be "such that a reasonable jury could find a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
With these standards in mind, the Court will review the facts in the light most favorable to the nonmoving party, Kloft.
FACTS
McDonald is a corporation with its principal place of business in Dubuque, Iowa. (Amended and Substituted Complaint ¶ 8). Kloft worked for McDonald as a warehouse worker and truck driver commencing in September of 1991. (Def. Ex. G; Kloft Dep. at 12, 18). He was laid off in December of 1997 and his employment was terminated in May of 1998, along with the rest of the workers at McDonald's branch locations, due to the sale of McDonald to Hajoca Corporation. (Def. Ex. G; Seconded Amended Complaint ¶ 14; Def. Ex. F).
Throughout his employment with McDonald, Kloft's duties included assisting the warehouse manager in stocking, pulling orders, assembling materials for shipment, loading and unloading, operating material handling equipment as assigned and making deliveries, among other things. (Kloft Dep. at 18-19; Gehl Dep. at 59; Def. Ex. F). During Kloft's six years of employment he received two written performance evaluations. (Pl. Ex. 14 and 15). In both, Kloft received an overall evaluation of "good." (Pl. Ex. 14 and 15). In his tenure at McDonald, Kloft was never disciplined and, prior to Kloft's lay off, McDonald never documented any complaints about Kloft's performance. (Duerksen Dep. at 84).
At some point Kloft was moved from warehouse worker and truck driver to the City Desk where he handled customer requests. (Kloft Dep. at 22). In the summer of 1996, Roger Duerksen ("Duerksen"), McDonald's Branch Manager for Dubuque, decided to move Kloft back to the warehouse position because, according to his recent testimony, Kloft's poor performance and customer complaints warranted his removal from the City Desk. (Duerksen Dep. at 47-48). Duerksen did not, however, place any documentation in Kloft's file about his poor performance or customer complaints. (Duerksen Dep. at 47-48). Kloft denies that this was the reason for the move and recalls a memorandum written by Duerksen supplied to Kloft at the time, which stated the move was due to a company reorganization. (Kloft Dep. 22-23; Pl. Ex. 8 and 9).
Kloft was in an automobile accident in November of 1994 and injured his back. (Kloft Dep. at 6-10). Kloft sought continuing chiropractic care due to that accident. (Kloft Dep. at 8).
In March of 1997 Kloft sustained a work-related back injury while unloading cabinets from a delivery truck. (Kloft Dep. at 28-29). As result of this injury, Kloft was off work until April 7, 1997, when he returned to work without restrictions. (Gehl Dep. at 72; Duerksen Dep. at 69-70). Kloft continued to experience pain, sought continuing medical treatment, and ultimately underwent back surgery on August 11, 1997. (Kloft Dep. at 42).
While recovering from surgery, Kloft filed a Worker's Compensation claim. (Kloft Dep. at 45-46). Deb Didesh, the person handling Kloft's claim, sent Kloft to Dr. Nemmers for treatment. (Kloft Dep. at 30-40). Sisco, the administrator of McDonald's insurance, denied all Kloft's chiropractic treatments except for one. (Kloft Dep. at 32). Dr. Nemmers ordered an MRI for Kloft but Dr. Nemmers failed to schedule an appointment in a timely manner, in order to analyze the test's results. (Kloft Dep. at 31-32). Due to increased pain, Kloft decided to seek immediate treatment at the emergency room of the University of Iowa Hospitals and Clinics. (Kloft Dep. at 32). The doctors at the University found Kloft needed surgery. (Pl. Ex. 24). Kloft's Workers Compensation claim was settled in December of 1997.
Sometime in October of 1997, McDonald completed its final budget and made the decision to lay off one person in the warehouse staff. (Zartman Dep. at 9-10). Scott Zartman ("Zartman"), the Vice President of Finance for McDonald, testified that the budget for 1998, that was prepared in October of 1997, took into account the laid off worker for 1998. The employees included in the budget were listed in the budget report; Kloft's name was not represented on that budget report. (Pl. Ex. 11; Zartman Dep at 19, 11-12).
After McDonald requested multiple drafts of his work release, Kloft was allowed to return to work on December 29, 1997 without restrictions. (Gehl Dep. at 41-42, 72; Duerksen Dep. at 60-70). Upon his return to work, Kloft was informed that he would be laid off effective January 1, 1998. (Kloft Dep 55). Duerksen wrote that the reason for Kloft's lay off was that "Al does not have the sufficient ability to perform the required work." (Pl. Ex. 12). Similarly, McDonald's Warehouse Supervisor, Tim McCarty ("McCarty"), wrote in part that:
Al can not pick and pack All American orders, he can not pack and ship out UPS shipments, or pack and ship out LTL shipments. He is unable to check and receive shipments. Running the highlift machines is very difficult for Al.
(Pl. Ex. 13). Duerksen and McCarty both told Pamela Gehl ("Gehl"), the Human Resources Director for McDonald, that Kloft no longer had sufficient ability to perform his job. (Gehl Dep. at 49, 53).
As a bargaining member of the union, Kloft was subject to the following Article of the Collective Bargaining Agreement ("CBA"):
If the Company determines that layoffs are necessary, employees will be selected for layoffs based on seniority; provided that where the senior employee does not have sufficient ability to perform the required work he may be laid off out of seniority order. Employees will be recalled to work in the reserves [sic] order of layoff.
However, when Kloft was laid off, his duties were usurped by another worker with less seniority than Kloft, Don Prine ("Prine"). (Pl. Ex. 7). Consequently, in January of 1998 Kloft filed a union grievance for the out of seniority lay off. (Kloft Dep. at 57-59).
During the grievance procedure McDonald presented the following evidence:
For business reasons we have to reduce our warehouse workforce by one and Al was the person chosen for the following reasons: Al cannot pick and pack All American orders, he cannot pack and ship out UPS shipments, or pack and ship out LTL shipments. He is unable to check in and receive shipments. Al cannot pick orders or put stock away with speed and accuracy. Al needs constant retraining and supervision. Running the high lift machine is very difficult for Al. Al's inability to sufficiently perform the functions of the warehouse job is why Al Kloft was chosen for the layoff instead of Don Prine pursuant to Article V. Section 5.
Based upon this evidence, union representative Dale Jeter ("Jeter") determined that the arbitrator would not sustain Kloft's grievance and withdrew it. (Kloft Dep. at 59-60). Jeter was not presented with the argument that Kloft was laid off because a less senior member was more qualified. (Pl. Ex. 20) Rather, he was presented with the above evidence that Kloft was unable to sufficiently perform the functions of the job. (Pl. Ex. 20). Likewise, in Gehl's deposition, she testified that "if the person could perform the functions of this job, you wouldn't pick the other person even though maybe they are superior, but what we are saying here is Al could not perform the functions of the job." (Gehl Dep. at 53).
In the present proceeding McDonald does not argue that Kloft was unable to perform the job. Instead, McDonald now argues that Prine was more qualified than Kloft. (Duerksen Dep. at 77-78). McDonald takes the position that Duerksen believed that Article V of the CBA allowed the company to lay off someone out of seniority provided that they were replaced by someone who was more qualified. (Duerksen Dep. at 57-59, 77-78). Prine, however, did not have a valid commercial driver's license ("CDL") when he remained on the job, which is a written requirement for a warehouse and truck driver position. (Pl. 16 and 17).
On May 29, 1998, Kloft filed a complaint with the Iowa Civil Rights Commission ("the Commission") for discrimination based upon a disability. (Amended and Substituted Complaint ¶ 3). The Commission found there was no probable cause for discrimination based on disability. (Amended and Substituted Complaint ¶ 26, 28). Kloft subsequently filed the present action. (Amended and Substituted Complaint).
DISCUSSION ADA and ICRA Claims
"The ADA prohibits discrimination by covered entities, including private employers, against qualified individuals with a disability." Sutton v. United Airlines, Inc., 119 S.Ct. 2139, 2143 (1999). Iowa Code § 216.6 makes it unlawful to discriminate against any employee because of a disability "unless based on the nature of the occupation." Iowa Courts look to the ADA, its interpretive regulations, and case law in resolving disability claims under ICRA. See Loeckle v. State Farm Auto Ins. Co., 59 F. Supp.2d 838, 850 n. 9 (N.D.Iowa 1999). The Court's analysis will therefore apply equally to Kloft's ADA and ICRA claims.
The familiar burden shifting framework of McDonnell Douglas, applied in discrimination cases, requires first that a plaintiff establish a prima facie case of discrimination. See Young v. Wagner, 152 F.3d 1018, 1023 (8th Cir. 1998); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). Once the plaintiff satisfies this initial burden, "a rebuttable presumption of discrimination arises, and the burden shifts to the defendant to rebut the presumption by articulating a legitimate, nondiscriminatory reason for the adverse employment action." Id., citing Rose-Maston v. NME Hosp., Inc., 133 F.3d 1104, 1107 (8th Cir. 1998). After the defendant advances a nondiscriminatory reason, the presumption then disappears and "the plaintiff bears the burden of demonstrating that the employer's proffered reason is merely a pretext for intentional discrimination." Young, 152 F.3d at 1023. Notably, the plaintiff retains the ultimate burden of proving that the adverse employment action was motivated by intentional discrimination at all times. See id., citing Rose-Maston, 133 F.3d at 1108.
A. Prima facie Case
To establish a prima facie case of discrimination, a plaintiff must show: (1) that he had a disability within the meaning of the ADA, (2) that he was qualified to perform the essential functions of his job, with or without reasonable accommodation, and (3) he suffered an adverse employment action under circumstances from which an inference of unlawful discrimination arises. See Taylor v. Nimock's Oil Co., 214 F.3d 957, 959-60 (8th Cir. 2000) ; Young, 152 F.3d at 1023.
In the present case, Kloft could perform the essential functions of the job and Kloft suffered an adverse employment action. The only issues disputed in the parties' briefs are whether Kloft is disabled within the meaning of the ADA, and whether Kloft was laid off due to a disability.
An individual is deemed disabled if he has "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) [is] regarded as having such an impairment." 42 U.S.C. § 12102(2). According to the ADA's accompanying regulations, an impairment is "`substantially limiting' if it renders an individual unable to perform a major life activity that the average person in the general population can perform, or if it significantly restricts the condition, manner, or duration under which an individual can perform such an activity compared to the general population." Taylor, 214 F.3d at 960, citing § 29 C.F.R. § 1630.2(j)(1)(i)-(ii). "Major life activities include caring for oneself, performing manual tasks, walking, seeing, hearing, breathing, learning, and working, § 29 C.F.R. § 1630.2(i), as well as sitting, standing, lifting, and reaching." Id., citing Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944, 948 (8th Cir. 1999). Kloft contends he is disabled because McDonald regarded him as having an impairment and he has a record of such an impairment.
1. Regarded or Perceived as Having a Disability
There are three ways in which an individual may fall within the statutory definition of a perceived disability: (1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities; or (2) an individual's physical or mental impairment substantially limits a major life activity only as the result of the attitudes of others toward such impairment; or (3) a covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities. See 29 C.F.R. § 1630.2(l); see also Sutton, 119 S.Ct. at 2149. In each case, "it is necessary that a covered entity entertain misperceptions about the individual — it must believe either that one has a substantially limiting impairment that one does not have or that one has a substantially limiting impairment when, in fact, the impairment is not so limiting." Id.; see also Murphy v. United Parcel Service, Inc., 119 S.Ct. 2133, 2137 (1999) (noting that a "person is `regarded as' disabled within the meaning of the ADA if a covered entity mistakenly believes that person's actual, nonlimiting impairment substantially limits one or more major life activities."); Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d 1311,1319-20 (8th Cir. 1996) (noting "[a] person is `regarded as having' an impairment that substantially limits major life activities when others treat that person as having a substantially limiting impairment.").
Kloft argues that McDonald mistakenly believed his back injury was substantially limiting. To support this argument Kloft first establishes that his supervisor and McDonald's branch manager were aware of his longstanding back complications which culminated in Kloft's back surgery. He then points to McDonald's numerous requests for work releases from Kloft's treating physician, before allowing Kloft to return to work after his back surgery. Kloft contends that McDonald's requests for work releases, made in December, were actually made after the decision to lay him off, which is evidenced by Kloft's omission from the 1998 budget report as early as October. Therefore, Kloft concludes, McDonald was simply requesting confirmation of its mistaken belief that Kloft's back injury prevented him from carrying out the essential functions of the job.
McDonald retorts that it requested multiple versions of Kloft's work release simply to discern whether Kloft needed any accommodations. While McDonald concedes that the upshot of the multiple drafts of the medical release was that Kloft did not require work restrictions, this, McDonald maintains, does not mean McDonald mistakenly believed Kloft was disabled.
Yet, Kloft bolsters his argument further with statements from McDonald personnel that highlight their belief that Kloft was somehow limited in his ability to work. Duerksen, the branch manager who recommended Kloft's lay off, wrote "Al does not have the sufficient ability to perform the required work." Likewise, McCarty, Kloft's supervisor, wrote "Al can not pick and pack All American orders, he can not pack and ship out UPS shipments, or pack and ship out LTL shipments. . . ." These statements are particularly probative because they were made on the heels of Kloft's back surgery. Prior to Kloft's back surgery, there was no written documentation of his inability to perform the essential functions of his job. Hence, it seems likely that these statements evince the speaker's belief that Kloft is incapable of fulfilling the required functions of his job because of his recent back surgery.
McDonald does not provide any explanation for these specific statements except to attempt to rebut them with contradictory statements made later by these deponents and by other McDonald personnel. This, however, does little more than generate a triable issue of fact.
This Court's focus is on "the impairment's effect upon the attitudes of others." Wooten v. Farmland Foods, 58 F.3d 382, 385 (8th Cir. 1995), citing Byrne v. Board of Education Sch. of West Allis, 979 F.2d 560, 564 (7th Cir. 1992). Viewing the facts in the light most favorable to Kloft, it seems evident that McDonald was aware of Kloft's back impairment. While knowledge of such an impairment alone does not show an employer regarded the plaintiff as having a disabling impairment, see Aucutt, 85 F.3d at 1319, Kloft has offered evidence that McDonald acted on its belief that Kloft was disabled by requesting work restrictions related to the impairment and contending Kloft was unable to perform the essential functions of the job immediately after his back surgery. Specifically, the Court finds the statements of Duerksen and McCarty, together with McDonald's knowledge of Kloft's back complications, sufficient evidence to generate a triable issue of fact as to whether McDonald regarded Kloft as having a disability.
The Court is cognizant that Kloft has the burden of establishing that he was perceived as being substantially limited in a major life activity. See Aucutt, 85 F.3d at 1319-20 (noting employer must regard the disability as "substantially limiting" in a major life activity). While Kloft does not address this with particularity in his memorandum, the Court finds he has successfully generated an issue of fact as to whether McDonald perceived Kloft as being substantially limited in the major life activity of working. Were Duerksen and McCarty to believe that Kloft was unable to perform the major functions of the job due to his back injury — functions such as lifting, bending, packing — Kloft would be precluded from the broad range of jobs for which he is qualified. See Snow v. Ridgeview Med. Ctr., 128 F.3d 1201, 1206-07 (8th Cir. 1997) (stating "the impairment must prevent the [plaintiff] from performing an entire class or broad range of jobs as compared to the average person possessing comparable training, skills, and abilities."). Kloft has a high school degree with a work history consisting of truck driving, shipping, and receiving packages. If Kloft could not stock materials, pull orders, assemble materials etc., as alleged by Duerksen and McCarty, he could not work as a construction worker, truck driver, shipping and receiving clerk, machinist, or equipment operator for which he is qualified. See Helfter, United Parcel Serv., Inc., 115 F.3d 613, 617 (8th Cir. 1997) (noting courts must consider "the number and type of jobs from which the impaired individual is disqualified; the geographical area to which the individual has reasonable access; and the individual's job training, experience, and expectations."). Viewing the facts in the light most favorable to Kloft, the Court finds there are disputed issues of fact sufficient to reach a jury on the issue of whether Kloft was perceived as substantially limited in the major life activity of working.
2. Record of Impairment
One has a record of a disability if one "has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities." § 29 C.F.R. § 1630.2(k); see also Land v. Baptist Medical Center, 164 F.3d 423, 425 (8th Cir. 1999). The Equal Employment Opportunity Commission's Interpretive Guidance on Title I of the Americans With Disabilities Act, 29 C.F.R. § 1630, App. 1630.2(k), provides this explanation about a record of disability:The second part of the definition provides that an individual with a record of an impairment that substantially limits a major life activity is an individual with a disability. The intent of this provision, in part, is to ensure that people are not discriminated against because of a history of disability. For example, this provision protects former cancer patients from discrimination based on their prior medical history. This provision also ensures that individuals are not discriminated against because they have been misclassified as disabled. For example, individuals misclassified as learning disabled are protected from discrimination on the basis of that erroneous classification.
Significantly, one satisfies the definition of a record of disability if the employer relied on a record which indicates the individual has or had a substantially limiting impairment. See Taylor, 214 F.3d at 961. The impairment indicated in the record must be an impairment that would substantially limit one or more of the individual's major life activities. See 29 C.F.R. § 1630.2(k). Medical or employment records are considered records which could satisfy the definition of record of a disability. See 29 C.F.R. § 1630, app., 1630.2(k).
Kloft appears to contend that McDonald viewed his record of back injury as substantially limiting in the major life activity of working. In order for Kloft to prevail on a showing that he has a record of disability, he must establish that the record of impairment contains a history of, or a mis-classified mental or physical impairment, that "substantially limits one or more major life activities." § 29 C.F.R. § 1630.2(k). Thus, he must show that his back injury was a disability that substantially limited one or more major life activities, or that the record of his back injury was mis-classified as substantially limiting to one or more major life activities.
The documents that comprise the record of his impairment were provided to McDonald by Kloft and his treating physician. As such, Kloft cannot now argue that the very documents he provided his employer mis-classified him as being substantially limited in a major life activity. Therefore, Kloft must argue that his record of a back injury is substantially limiting in a major life activity and McDonald relied on that record. First off, Kloft does not appear to argue that he has a record of a back injury that is substantially limiting in a major life activity. Assuming that this is his position, the evidence to support this contention consists of a history of back pain that led up to back surgery and the recovery period from that surgery. The Eighth Circuit addressed similar facts in Gutridge v. Clure, where it rejected the notion that the plaintiff could make a showing of a record of a disability through a record of treatment and recovery from a back injury. See 153 F.3d 898, 901-02 (8th Cir. 1998), cert denied, 526 U.S. 113 (1999). The Gutridge Court explained that "[d]isability under the ADA requires permanent or long-term impairments, see 29 C.F.R. Pt 1630, App. § 1630.2(j), and impairments while recovering from surgery are not evidence of a permanent disability." The Court finds that Kloft has not established that he has a record of an impairment that substantially limits one or more major life activities. See, e.g., Taylor, 214 F.3d at 961 (stating "documentation must show" that there is a history of disability).
The Court notes that Kloft seems to be arguing in this portion of his memorandum that McDonald regarded or misperceived his record of a back injury to be substantially limiting in the major life activity of working. This is distinct from mis-classification of a disability which, as explained in the appendices of the regulations, are situations such as being labeled or recorded as having a learning disability when one does not. Kloft's argument that McDonald misperceived his record of a back injury as substantially limiting is more appropriately made under the guise of being "regarded" as having a disability. As explained supra, the record of a disability must be a record of a previous or existing actual disability, or a mis-classified record of a disability. Neither scenario is supported by the facts of this case.
3. Kloft was Laid Off Under Circumstances From Which an Inference of Unlawful Discrimination Can Arise
With respect to the final element of the prima facie case, Kloft must produce evidence that would support the contention he was laid off under circumstances from which an inference of unlawful discrimination could arise. See Young, 152 F.3d at 1021-22. To this end Kloft proffers evidence that McDonald was aware of his back condition, that upon returning from medical leave for back surgery he was laid off out of seniority, and that the reason given for his lay off was that he could not perform the functions of his job, although no such documentation existed prior to his lay off to support the company's concern.
It is well-established that the "prima facie burden is not so onerous as, nor should it be conflated with, the ultimate issue" of discriminatory action. Landon v. Northwest Airlines, Inc., 72 F.3d 620, 624 (8th Cir. 1995); see also Williams v. Ford Motor Co., 14 F.3d 1305, 1308 (8th Cir. 1994). Accordingly, the Court finds these facts are sufficient to meet Kloft's minimal prima facie burden.
B. Legitimate Business Reason
The prima facie case having been established through a showing of perceived disability, the burden is now upon McDonald to articulate a legitimate, nondiscriminatory reason for laying off Kloft. McDonald's legitimate business reason for laying off Kloft was that "his performance was comparatively poorer than the other workers." Although inconsistent with other evidence, this proffered reason is sufficient to shift the burden back to Kloft to establish the reason proffered by McDonald is pretextual. See, e.g., Young, 152 F.3d at 1022.
C. Pretext
It is the law of the Eighth Circuit that in order for Kloft to survive a motion for summary judgment he must: (1) present evidence creating a fact issue as to whether the employer's proffered reason is pretextual; and (2) present evidence that supports a reasonable inference of unlawful discrimination. See Young, 152 F.3d at 1022. However, in a recent Supreme Court opinion, the Court clarified a discrimination plaintiff's burden at summary judgment, holding "a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. 2097, 2102 (2000).
Again, McDonald's proffered business reason for laying off Kloft is that Kloft did not perform his job to the level of one of his co-workers who had less seniority. However, Kloft establishes that McDonald's original stated reason for laying him off was that he could not carry out the essential functions of his job. Nevertheless, this Court finds either explanation suspect in light of the fact that Kloft was replaced by someone with less seniority who did not have one of the qualifications delineated in the job description — a commercial driver's license. Moreover, Kloft was laid off immediately after his return from back surgery for the now stated reason that he did not perform the job as well as others; in spite of the lack of documentation to support this concern prior to his back surgery. The Court finds this evidence, combined with Kloft's prima facie showing, sufficient to generate a question of fact for the jury as to whether McDonald unlawfully discriminated against Kloft based on a disability when it laid him off.
At this point the Court finds it prudent that the plain language of the CBA does not appear to permit McDonald to discharge employees out of seniority because one performs the functions of the job better than another. Rather, the CBA seems to indicate that the person to be laid off must lack the "sufficient ability to do the work." Sufficient would seem to mean minimum requirements; not that the employee's performance was better than the rest. Indeed, Kloft has produced statements from McDonald personnel who understood this to be the correct interpretation of the CBA. McDonald now asserts a different interpretation of the CBA. Nevertheless, McDonald argues for purposes of this motion, that their "misinterpretation" of the CBA is not at issue and instead should be adjudicated with the NLRB, not the District Court. While the Court concedes the proper interpretation of the CBA is not at issue in the present proceeding, the Court is not inclined to grant summary judgment based on a potentially legally inaccurate business reason. Indeed, McDonald's argument seems particularly opportunistic when the appropriate time to raise their proposed interpretation of the CBA would have been during the union grievance proceeding. At that time McDonald instead took the position that Kloft did not have sufficient ability to perform his job, as opposed to its present position that he was less qualified than a co-worker with less seniority.
II Retaliatory Discharge Claim
In order to establish a claim of retaliatory discharge Kloft must show: 1) he was engaged in statutorily protected activity; 2) he suffered adverse employment action, and 3) a causal connection between the two. See Hulme v. Barrett, 449 N.W.2d 629, 633 (Iowa 1989). The first two elements are not in dispute as Kloft filed a Worker's Compensation claim — statutorily protect activity — and he suffered an adverse employment action — he was laid off. Therefore the sole issue before the Court is the causal connection between the two. With regards to causation, "the employee's engagement in protected conduct must be the determinative factor in the employer's decision to take adverse action against the employee." Teachout v. Forest City Community School District, 584 N.W.2d 296, 302 (Iowa 1998). A factor is considered determinative if it is the reason that "tips the scales decisively one way or the other, even if it is not the predominant reason behind the employer's decision." Id. (quotation omitted).
McDonald argues that a causal connection between Kloft's lay off and his Worker's Compensation claim cannot be made because those who decided to lay off Kloft were not privy to his Worker's Compensation claim. Kloft successfully generates a question of fact in this regard with the following evidence. First, Kloft notes that Zartman, who corresponded with Kloft about settling his Worker's Compensation claim, partially oversaw the Human Resources Department, and therefore was in the position to accept or reject the recommendation to lay him off. Secondly, Kloft points out that Gehl, the Human Resource Director, was involved in both the decision to lay off Kloft as well as being aware of his Worker's Compensation claim. And finally, Kloft establishes that the admitted decisionmaker Duerkson, had access to Kloft's personnel file which detailed the procedures taken in his Worker's Compensation claim and also oversaw the branch manager Didesh, who in fact processed Kloft's Worker's Compensation claim.
As a second line of defense, McDonald contends that while Kloft was laid off in close proximity to the time he filed his Worker's Compensation claim, this alone is insufficient to survive summary judgment on a retaliation claim. See Teachout, 584 N.W.2d at 302. However, Kloft offers more than the temporal proximity of his filing a Worker's Compensation claim to his lay off as evidence of retaliation. Kloft offers evidence that he was hampered by McDonald's self insurance administrator, Sisco, in his effort to obtain medical treatment throughout the Worker's Compensation process. See, e.g., Weinzetl v. Ruan Single Source Transportation Co. 587 N.W.2d 809, 811 (Iowa 1998) (finding "harrassment of an employee after filing of a workers compensation claim can be considered circumstantial evidence of an employer's retaliatory motive.") Specifically, Sisco refused all but one treatment by Kloft's chiropractor. After the physician to whom Kloft was sent by McDonald failed to follow up on Kloft's medical tests, Kloft sought treatment at the emergency room for the pain he was experiencing. The emergency room doctors then concluded Kloft's injury required surgery.
The Court finds the aforementioned evidence, together with McDonald's suspect decision to lay off Kloft out of seniority, sufficient to generate a question of fact for the jury on Kloft's claim of retaliatory discharge. See, e.g., Smith v. Smithway Motor Express, 464 N.W.2d 682, 684 (Iowa 1991) (finding evidence that the day after plaintiff returned to work she was fired, coupled with failure to follow procedures in termination and the addition of new reasons for terminating, gave rise to a question of fact for jury).
III Fraudulent Misrepresentation
To establish a claim of fraudulent misrepresentation, Kloft must show the following elements: (1) McDonald made a representation to Kloft; (2) the representation was false; (3) the representation was material; (4) McDonald knew the representation was false; (5) McDonald intended to deceive Kloft; (6) Kloft acted in reliance on the false representation made by McDonald; (7) the false misrepresentation was the proximate cause of Kloft's damage; and (8) the amount of that damage. See Midwest Home Distributor, Inc. v. Domco Industries, Ltd., 585 N.W.2d 735, 738 (Iowa 1998) ; see also Bates v. Allied Mutual Insurance Co., 467 N.W.2d 255, 260 (Iowa 1991). Because the Court finds that Kloft cannot establish that he acted in reliance of the allegedly false representation by McDonald, he is effectively foreclosed recovery on this claim. The Court will therefore go directly to a discussion of that element.
Kloft contends that McDonald falsely represented to him and the union, that he was no longer able "to perform the functions of the warehouse/truck driver job" and that was the cause for his lay off. However, Kloft is unable to show that he personally relied on these statements. Indeed, Kloft concedes in his memorandum that he personally did not rely on these statements. Instead, Kloft attempts to obviate this necessary element by contending the union relied on these assertions, and that he in turn had no choice but to rely on the union's decision to withdraw his grievance made in light of the false representations.
The Iowa Supreme Court addressed a similar issue in Eldred v. McGladrey, Hendrickson Pullen, 468 N.W.2d 218 (Iowa 1991). There the plaintiffs asserted fraudulent, negligent, or innocent misrepresentation by an accounting firm concerning the financial condition of an investment company. See Eldred, 468 N.W.2d at 219. The plaintiffs in Eldred conceded that "they never actually saw or read" the materials containing the alleged misrepresentation, but that the state had, and the state had relied upon them, and that the plaintiffs had in turn relied on the state. Id. While the court conceded that "privity is not required," it went on to conclude that this was "not a case in which reliance may be inferred, as the plaintiffs concede they never saw [the materials containing the alleged misrepresentations] nor were any misrepresentations concerning its contents ever made to them." Id. at 220; see cf Rochholz v. Farrar, 547 F.2d 63, 66 (8th Cir 1976) (applying Iowa law, holding where there is no evidence that complaining party relied on misrepresentations of other party, complaining party is not entitled to recission of contract).
While the facts of this case differ somewhat from those in Eldred, the Court finds the reasoning controlling. Kloft admits he was aware of the alleged misrepresentations and did not personally rely on them. Kloft cannot establish reliance vis-a-vis the union where he personally heard the misrepresentations and did not believe them. Therefore, he has not established the necessary elements of fraudulent misrepresentation.
CONCLUSION
In conclusion, the Court finds that viewing the facts in the light most favorable to Kloft, he has generated triable issues of fact with regards to his ADA and ICRA claims and his claim for retaliatory discharge. Kloft's failure to meet the necessary elements of fraudulent misrepresentation, however, warrant a grant of summary judgment on that claim.
ORDER
For the reasons mentioned herein, A.Y. McDonald's motion for summary judgment is DENIED in part and GRANTED in part.
Summary judgment as to the disability discrimination claims pursuant to the ADA and the ICRA is DENIED.
Summary judgment as to the retaliatory discharge claim pursuant to Iowa law is DENIED.
Summary judgment as to the wrongful termination claim pursuant to Iowa law is GRANTED.