Opinion
No. C97-2062 MJM
July 30, 1999
ORDER Introduction
In this case, the plaintiff, Cathy Royek, alleges that the defendants, Solvay Animal Health, Solvay America, Inc., and American Home Products (collectively "Solvay"), violated the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601-54 ("FMLA"); terminated her on the basis of disability in violation of the Iowa Civil Rights Act ("ICRA"), Iowa Code ch. 216; and wrongfully terminated her on the basis of work-related injuries under state law. This matter is now before the court on Solvay's motion for summary judgment. This court has federal question jurisdiction over the FMLA claim and diversity jurisdiction.
In the motion for summary judgment, Solvay argues that Royek was terminated because of persistent attendance problems beginning when Royek was first hired in 1991. Solvay further argues that Royek cannot show she had a "serious medical condition" under the FMLA or was disabled under the ICRA, or that there was any causal connection between her termination and her use of leave, her work-related injury, or her alleged disability.
Royek argues that she suffered from depression and work-related musculoskeletal conditions, both of which constituted disabilities or serious health conditions. Royek further argues that Solvay's reliance on her absenteeism is a pretext for discrimination because her attendance improved dramatically during 1994 and 1995 and because she missed less work than she was allowed to miss under Solvay's warnings and policies. Finally, Royek argues there is sufficient evidence that she was terminated because of her use of leave, her disability, and her work-related injuries to withstand the motion for summary judgment.
Summary Judgment
Summary judgment is only appropriate when the record, viewed in the light most favorable to the non-moving party, shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Sepe v. McDonnell Douglas Corp., 176 F.3d 1113, 1115 (8th Cir. 1999) (FMLA); Berg v. Norand Corp., 169 F.3d 1140, 1144 (8th Cir. 1999) (disability discrimination under the ICRA); Montgomery v. John Deere Co., 169 F.3d 556, 559 (8th Cir. 1999) (wrongful discharge in violation of Iowa public policy). Accordingly, this court will review the record in the light most favorable to Royek to determine whether there is any genuine dispute of material fact and whether Solvay is entitled to judgment as a matter of law.
Factual Background
Royek, now 45 years old, has a history of depression. (Plf. Ex. 12; Royek Dep. 47.) Solvay is an animal vaccine producer. In 1991, Royek began working for Solvay in the biopackaging department. Maida Weigmann, Solvay's nurse, was "aware that [Royek] was on an antidepressant when she came to work for [Solvay]." (Weigmann Dep. 27; Royek Dep. 47.)
The biopackaging department is responsible for labeling and packing vaccines for sale. The work involved "unscrambling" the vials, operating a machine called an "air labeler" to affix labels to vials, placing vials into trays in groups for sale, and shrink wrapping trays. To operate the air labeler, the employee must load and thread rolls of labels into a spool. (Van Hauen Dep. 8.)
It is undisputed that Royek had an inadequate attendance record during the first two years of her employment with Solvay. During 1992, Royek missed 23 days because of sickness. (Def. Ex. D.) During 1993, she missed 25.5 days because of sickness. (Def. Ex. F.) On a doctor's note dated July 21, 1992, which indicated Royek was being treated for depression, Robert Hammer, one of Royek's supervisors, wrote to Maida Weigmann, the company nurse, that "she says this is one of the reasons for her high absents sic." (Plf. Ex. 6.) Royek claims that Hammer once told her that "he could fire me at any time because of my past counseling." (Royek Dep. 36.)
In a memorandum on January 11, 1994, Hammer told Royek her attendance record was "totally unacceptable." ( Id.) Her absences at that time exceeded the number which Solvay's human resources policy said could result in disciplinary action. (Def. Ex. E.) Hammer told Royek that this memo was the "final notice" before he would recommend termination. ( Id.)
The policy stated: "As a guideline, the number of occurrences will be considered excessive if they exceed [1] More than two (2) occurrences in a 30-day period[;] [2] More than three (3) occurrences in a 90-day period[; or 3] More than seven (7) occurrences in a 365-day period. . . . Occurrences in excess of this guideline may result in disciplinary action." ( Id.). An "occurrence" is apparently defined as a consecutive period of absence due to illness regardless of the length of the absence, up to a 26-week absence. (Plf. Br. at 17).
Because of her poor attendance, Solvay withheld a pay raise from $8.51 to $8.81 for three months in early 1994. (Def. Ex. J.) By May 20, 1994, however, Hammer reported that Royek had made "marked improvement," missing only two days for medical reasons, and that he wanted to continue to work with and encourage Royek to "become a dependable employee." (Def. Ex. G.)
In June or July of 1994, Royek began to suffer right arm pain. (Def. Ex. L.) Royek missed work on July 27 to consult with her physician, Dr. Kevin Kimm, who asked that she be excused from work on July 27 and July 28 due to the pain. (Def. Ex. M.) On July 28, Royek was referred to the company doctor, Dr. Paul Royer, who restricted her to "[n]o fast repetitious work with [right] arm for one week." (Def. Ex. M.) Both Dr. Royer and Dr. Kimm noted she was being examined for the possibility of carpal tunnel syndrome resulting from the repetitive work she performed at Solvay. (Def. Exs. L M.) On July 29, she missed three more hours of work due to the pain, but she worked August 1 through August 4. (Def. Ex. K.) After an examination on August 4, 1994, Dr. Royer recommended that Royek "[c]ontinue to work at light duty — slow repetitive work." (Def. Ex. M.)
After Royek missed work on August 10 and August 11, (Def. Ex. K), she was examined again by Dr. Royer, who found that Royek "tried to go back to work using her right arm and it became very painful for her." (Plf. Ex. 13 at 3.) Dr. Royer noted that "I think she needs to be off work for now." ( Id.) After this examination, Dr. Royer repeated his recommendation of "[n]o repetitive lifting or motion for [two] weeks." (Def. Ex. M.)
Royek took a day's vacation on August 12, worked on August 15, and missed work on August 16 and August 17. (Def. Ex. K.) On August 17, Royek was referred to another company doctor, Dr. David Schweizer. Dr. Schweizer noted he had "[t]alked with Jeff Field [Solvay's safety director]. They would like to see her doing light duty. I think that sitting all day does aggravate her pain but she should be able to do light duty using her left arm only." (Plf. Ex. 13 at 4.) Dr. Schweizer told her to return to light duty on August 18, but not to use her right arm. (Def. Ex. M.) He also gave Royek a new pain prescription. (Plf. Ex. 13 at 4.) Royek returned to work, missing only a few hours the next week for three doctor's appointments. (Def. Ex. K.)
By August 26, Dr. Royer noted that Royek "[s]eems to be doing much better." (Def. Ex. N.) On September 1, Dr. Royer again noted that Royek "seems to be doing much better at this point. She is doing moderate packing. . . . May continue to do moderate shrinking and packing." (Def. Ex. O.) Despite her improvement, however, Dr. Royer still limited Royek to "medium duties[.] Maximum lifting 15 lbs[.] Rotate duties during each day." (Def. Ex. M.)
Royek testified that at some point during this time, she talked with Weigmann and Hammer about taking an unpaid leave to give her time to heal. (Royek Dep. 48.) After making a telephone call to ask about the leave, Weigmann "just smiled and shook her head no." (Royek Dep. 49.) Weigmann acknowledged that Royek "required extensive care." (Weigmann Dep. 13.) Weigmann also acknowledged that she never asked Royek if she needed any accommodations to reduce her absentee rate. (Weigmann Dep. 28.)
Sharon Van Hauen, Royek's immediate supervisor, acknowledged she could not comply "a hundred percent" with Royek's restriction of not working with her right arm because "[e]verything's going to require a right arm." (Van Hauen Dep. 12.) On the restriction on pace, however, Van Hauen testified that employees "could work at a nice, even pace." ( Id.)
Royek testified that when she took the restriction that she be rotated during the day to Van Hauen, Van Hauen said, "You mean during the day?" (Royek Dep. 26.) Royek stated that rotating job assignments each day would be sufficient. ( Id.) According to Royek, Van Hauen conveyed "the attitude" that rotation "was a waste of time" and that she "didn't want it in the department." (Royek Dep. 24.) Furthermore, Royek claims that Van Hausen used "looks" and "glares" to express her disapproval with Royek's need for rotation. (Royek Dep. 35.) However, Royek acknowledged that Van Hausen also glared at other employees in the department. (Royek Dep. 37.)
On September 19, 1994, Royek attempted suicide by taking an overdose of the medication prescribed by Dr. Schweizer and other over-the-counter medications. She missed worked from September 19 to September 30 due to her hospitalization and recovery after the overdose of medications. (Def. Ex. K.)
Royek returned to work on October 3, 1994. (Def. Ex. K.) Solvay's safety director, Jeffrey Field, believed that Royek's repetitive work injury was resolved by this time. (Field Dep. 44-45.) The record of Royek's consultation with Val Lyons, to whom Dr. Royer referred Royek, shows she had made "excellent progress" and was "back to normal work activities" without physical pain or medications. (Def. Ex. Q.)
In the next two months, Royek missed 53 hours of work, or about seven days. (Def. Ex. K.) She missed six hours of work for a court appearance on October 26; three days with the flu on October 31, November 1, and November 2; two days with bronchitis on November 11 and November 14; and a day with "stomach problems" on November 28. ( Id.)
On November 28, 1994, Chuck Loge (who had replaced Bob Hammer) wrote Royek the following memorandum:
I have been made aware of a serious problem concerning your attendance. During the past 12 months, you have used 240 hours of sick time. This works out to over 11% of the time you were scheduled to work. Nor was it a case of a prolonged illness[.] [T]here have been 12 separate instances of absence, the longest was two weeks. This type of absenteeism is totally unacceptable.
You received written warnings on this matter in January and May of last year, and again in January of this year. Because your last warning is nearly a year old, I do not intend to terminate you at this time. However, your poor performance will not be tolerated in the future. You know the seriousness of this problem and have been coached, counseled and warned repeatedly in the past. This is your final warning. Unless you demonstrate dramatic improvement in this area your employment will be terminated.
Because you demonstrated somewhat improved performance during the first half of 1994, I know that such improvement is possible. I hope you can resolve this problem and become a valuable employee of this company.
(Def. Ex. H) (emphasis in original).
Following this warning letter, Royek missed only one-half hour until January 9, 1995, when she was absent because of dental work. She missed four days of work between January 23 and January 26 for shoulder and neck pain. Royek told Field that she believed her pain was due to working on the air labeler for several days in a row filling and labeling heavy bottles. (Royek Dep. 45.) Field responded that "you can't go around telling people that it's because you worked on the air labeler." ( Id.) Royek then stated she was uncertain of whether the injury was work-related or "if I just slept wrong." (Royek Dep. 43.)
During the next four months, Royek missed nine days for a variety of illnesses. She was absent on February 12, March 17, March 20, and March 21 due to the flu or stomach pain. Royek was absent on April 19 and May 30 due to headaches and dizziness, and was absent on April 6, June 6, and June 8 due to a toothache. (Def. Ex. K.) There is no evidence whether she provided Solvay with medical documentation for these absences or attributed her absences to either depression or her work-related musculoskeletal injuries. Royek concedes she was "sick a lot" while she worked at Solvay, but she claims that some of the sickness was due to the stress of working there. (Royek Dep. 60-61.)
In June of 1995, Royek testified that she spoke with Field about the pain in her arms after working the air labeler three days in a row . (Royek Dep. 22, 28.) Royek said she "told him that, you know, I couldn't take working on the same line day in day out, that my arms were not the same, you know, ever since the work injury. . . . I said, My arms are starting to hurt again. . . . I just can't take this anymore, my arms can't take this." (Royek Dep. 22, 40.) Royek further testified that she specifically asked Field to let her be rotated daily. (Royek Dep. 41.) According to Royek, however, Field only said, "So what are you saying, you don't want to work the air labeler?" (Royek Dep. 22, 28, 40.) Royek replied, "No, that's not it at all." (Royek Dep. 22.)
On June 12, 1995, Curt Loge sent another warning letter to Royek. (Def. Ex. I.) This letter stated that Royek's attendance "has shown marginal improvement" since his November 28, 1994 warning. ( Id.) Loge wrote:
We are not satisfied with the extent of your improvement, but are willing to give you additional time to demonstrated sic that you can bring this matter under control. So far this year, you have missed 71 hours classified as sick time. This works out to an absence rate of 7.7%. During the next three months, until September 11, I will be monitoring your attendance closely and expect to see significant improvement. If your attendance is not satisfactory during this period, your employment will be terminated.
Following this three month period, I expect to see that you continue to show up for work. If you make it through this probationary period, you should make it a goal to bring your attendance [absence rate] to less than 3%. This is equivalent to missing less than 62.4 hours in a twelve month period. If after you bring this problem under control, your attendance should again fall to an unacceptable level, you will once again be reviewed for further disciplinary action possibly including termination.
Cathy, I know you are a good worker when you are here. Despite your good performance while on the job, good attendance is a requirement for continued employment[.] I know you can do it.
(Def. Ex. I). During this probationary period, she was one hour late to work on July 5, 1995, when her alarm clock did not go off, and missed work on August 4, 1995, due to a sinus infection. (Def. Ex. K). Royek also missed three other days for vacation or personal leave. ( Id.) The nine hours Royek missed for sick leave were less than 3% of the hours she worked through August 11. ( Id.)
Royek was terminated on August 11, 1995. Royek was told she was being terminated because she "missed too much work." (Royek Dep. 58.) After she was terminated, Solvay would no longer pay her medical bills for physical therapy. (Plf. Exs. 9 10.) Royek contends that these bills were for therapy and treatment for work-related injuries. ( Id.)
Royek contends that other employees had more absences but were not disciplined or terminated. For example, Cameron North missed 128.50 hours in 1994 and 470.75 hours in 1995. (Plf. Exs. 4 5.) Solvay explains that North was not terminated because he had an extended absence for hospitalization for open heart surgery. (Van Hauen Dep. 28-29.) There also appears to be a dispute in the record about how Solvay categorized absences based on whether or not injuries or illnesses were work-related. (Field Dep. 58-59.)
Royek has submitted an affidavit from Dr. Kimm who states his expert medical opinion that (1) her injury was permanent "in that without appropriate modifications to her work environment her symptoms would recur and/or worsen," (2) with rotation in her job, Royek "would have been able to performs her duties at Solvay Animal Health with minimal recurrence of symptoms," and (3) the lack of proper task rotation "caused her injuries to worsen and she is at this time totally and permanently disabled." (Kimm Aff. ¶¶ 5-7.)
Analysis 1. Family and Medical Leave Act
Solvay contends it is entitled to summary judgment on Royek's FMLA claim because (1) Royek did not have a "serious health condition" triggering the protections of the FMLA under 29 U.S.C. § 2611 and (2) there is no causal connection between Royek's alleged request for leave and her termination. Royek responds that she did have a serious health condition and that she was terminated not only because she requested leave, but also because she took leave that was protected under the FMLA. In addition, Royek contends that Solvay interfered with the exercise of her leave rights and failed to inform her of her rights under the FMLA.
The FMLA allows a covered employee to take "twelve weeks of leave every year if [she has] a `serious health condition that makes [her] unable to perform the functions' of [her] job." Bailey v. Amsted Indus. Inc., 172 F.3d 1041, 1045 (8th Cir. 1999) (quoting 29 U.S.C. § 2612(a)(1)(D)); Carter v. Ford Motor Co., 121 F.3d 1146, 1148 (8th Cir. 1997). "A `serious health condition' is any physical or mental condition that involves inpatient care or continuing treatment by a health care provider." Martyszenko v. Safeway, Inc., 120 F.3d 120, 122 (8th Cir. 1997) (citing 29 U.S.C. § 2611(11)). In Martyszenko, the Eighth Circuit held that a "serious health condition" requires "a showing of incapacity." Id. at 122-23. If the incapacity extends "more than three consecutive calendar days" and "also involves qualifying treatment," it is protected by the FMLA. Thorson v. Gemini, Inc., 123 F.3d 1140, 1141 (8th Cir. 1997) (quoting Opinion FMLA-86, Wage and Hour Manual (BNA), 99:3091, 99:3091-92 (Dec. 12, 1996)).
In this case, it is clear that there is at least a genuine issue of fact about whether some of Royek's conditions qualify as a "serious health condition" under the applicable standards. In Price v. City of Fort Wayne, 117 F.3d 1022, 1023-24 (7th Cir. 1997), the Seventh Circuit held that feelings of stress and depression, combined with several other factors, could constitute a "serious health condition." In this case, Royek had a history of depression of which Solvay was aware, and she was hospitalized for a week and missed two weeks of work after her suicide attempt. This is the type of "in-patient care" which is expressly protected under the applicable regulations. See 29 C.F.R. § 825.114(a)(1).
Moreover, the court believes there is a genuine issue of fact about whether Royek's work-related musculoskeletal condition beginning in July of 1994 constituted a "serious health condition." In July and August, 1994, Royek missed more than six days of work because of her condition. She had at least seven appointments with doctors during this time and repeatedly attended physical therapy sessions. Dr. Royer, the company doctor, opined that he thought "she needs to be off work for now." Royek claims she was incapacitated for more than three days in January 1995 due to work-related shoulder and neck pain. Her doctor, Dr. Kimm, has expressed his opinion that she is now totally and permanently disabled from her condition. Under these circumstances, the court finds there is a genuine dispute about whether Royek had a "serious health condition" due to her musculoskeletal disorder under 29 C.F.R. § 825.114(a)(2)(i) (incapacity of three consecutive days); § 825.114(a)(2)(iii) ("chronic serious health condition"); § 825.114(a)(2)(iv) (permanent or long-term condition for which treatment may not be effective); or § 825.114(a)(2)(v) (condition subject to treatment without which it would be incapacitating for more than three days).
Having found a genuine issue of material fact in regard to at least some of Royek's conditions, the court will now turn to the question of whether there is a genuine dispute of material fact about whether Royek was ever denied leave, retaliated against, or terminated in violation of 29 U.S.C. § 2615. Section 2615 makes it unlawful for "any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided" by the FMLA,
§ 2615(a)(1), or "to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful" by the FMLA, § 2615(a)(2). Part of this statute is quite straightforward. Under 29 U.S.C. § 2617(a)(1), an employer who denies a request for leave to which the employee is entitled is liable for compensatory damages, along with liquidated damages unless the employer acted in good faith. Beal v. Rubbermaid Comm. Prods. Inc., 972 F. Supp. 1216, 1223 (S.D. Iowa 1997) (Pratt, J.). The question is simply whether the plaintiff can establish, by the preponderance of the evidence, that she is entitled to the benefit she claims. Diaz v. Fort Wayne Foundry Corp., 131 F.3d 711, 713 (7th Cir. 1997).
"Under the FMLA, the employer's duties are triggered when the employee provides enough information to put the employer on notice that the employee may be in need of FMLA leave." Browning v. Liberty Mut. Ins. Co., 1999 WL 346140, at *5 (8th Cir. June 2, 1999). "The employee need not specifically mention FMLA leave, but must state that leave is needed." Id. An employer may require that the employee's request for leave be accompanied by proper medical certification. 29 U.S.C. § 2613(a).
In this case, the only leave which Royek contends she requested but was denied was additional leave in August or September of 1994 to recuperate from her musculoskeletal disorder. Her request was supported by Dr. Royer's statement that he thought "she needs to be off work now." Presumably, Solvay had access to these medical records, given that Dr. Royer was a company doctor. The court concludes there is a genuine issue of material fact about whether Royek was entitled to leave when she requested it. Accordingly, Solvay's motion for summary judgment on the FMLA claim must be denied.
In addition, Royek claims that Solvay impermissibly discriminated or retaliated against her for exercising her leave rights. This claim presents a more complicated issue. Although the court has not found any Eighth Circuit cases interpreting and applying the retaliation and discrimination provisions, at least two circuits and two district courts within the Eighth Circuit have held that the familiar burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), applies to claims of retaliation or discrimination under the FMLA. See Hodgens v. General Dynamics Corp., 144 F.3d 151, 160 (1st Cir. 1998); Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997); Smith v. DataCard Corp., 9 F. Supp.2d 1067, 1075 (D. Minn. 1998) (Magnuson, J.); Beal, 972 F. Supp. at 1229 (Pratt, J.); but see Diaz, 131 F.3d at 712-13 (suggesting in dicta that the burden-shifting framework of McDonnell Douglas does not apply).
Applying McDonnell Douglas to the facts of this case, Royek must show that (1) she availed herself of a protected right under the FMLA, (2) she was adversely affected by an employment decision, and (3) there is a causal connection between her protected activity under the FMLA and the adverse employment action. Hodgens, 144 F.3d at 161. If the plaintiff sets forth sufficient evidence to establish a prima facie case, the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for its actions. Id. at 160. If the defendant makes this showing, then the plaintiff must show the articulated reason is a pretext for discrimination based on her exercise of FMLA rights. Id. at 161.
In this case, Royek has set forth evidence of a prima facie case of retaliation or discrimination. As Royek points out, not only did she request leave, but she took leave in connection with her suicide attempt and her musculoskeletal disorder. Assuming these conditions are found to be serious health conditions, this leave was protected by the FMLA. Royek was placed on probation and ultimately terminated, both of which constitute adverse employment actions. See Caleshu v. Merrill Lynch, Pierce, Fenner Smith, 737 F. Supp. 1070, 1085 (E.D. Mo. 1990) (acts of putting plaintiff on probation and ultimately terminating plaintiff are adverse employment actions), aff'd, 985 F.2d 564 (8th Cir. 1991) (table), cert. denied, 504 U.S. 918 (1992). Finally, Solvay's decision to place Royek on probation and ultimately terminate her was clearly related to the absences that Royek claims were protected by the FMLA.
The court believes there is also a genuine issue of fact about whether Solvay's legitimate non-discriminatory reason for placing Royek on probation and terminating her (i.e., excessive absences) was a pretext for retaliation or discrimination under the FMLA. In Bailey, the Eighth Circuit upheld the trial court's findings in favor of an employer who terminated an employee for excessive absences. 172 F.3d at 1045-46. The court reasoned that "even if [the employer] had granted Bailey FMLA leave for any absences that were attributable to his serious health conditions, [the plaintiff] still had sufficient unexcused absences to justify his discharge." Id. at 1045. Bailey is distinguishable from this case, not only because of the different procedural posture, but also because Solvay relied heavily on the time Royek missed due to her suicide attempt and musculoskeletal disorder in making the decision to discipline her. Although Royek had a number of absences which clearly were not covered by the FMLA, it cannot be said as a matter of law that Solvay would have terminated her if it had not considered the leave that Royek claims was protected by the FMLA. Moreover, Royek has presented other evidence of pretext, such as the fact that she used only nine hours of sick leave during her two month probationary period, which creates a genuine issue of fact. For these reasons, the court will deny Solvay's motion for summary judgment on Royek's FMLA claim.
Because of the court's resolution of this matter, it need not address Royek's argument that Solvay "chilled" her exercise of leave right by not informing her of her rights, by calling Dr. Schweizer to ask that she be returned to light duty, and by the other incidents cited by Royek. See Mora v. Chem-Tronics, Inc., 16 F. Supp.2d 1192, 1228 (S.D. Cal. 1998); Williams v. Shenango, Inc., 986 F. Supp. 309, 320-21 (W.D. Pa. 1997); 29 C.F.R. § 825.220(b).
2. Disability Discrimination under the ICRA.
To state a discrimination claim under the ICRA, a plaintiff must show that (1) she has a disability, (2) she is qualified to perform the essential functions of the job with or without reasonable accommodation, and (3) she suffered an adverse employment action because of her disability. Berg v. Norand Corp., 169 F.3d 1140, 1144 (8th Cir. 1999); Helfter v. United Parcel Serv., Inc., 115 F.3d 613, 616 (8th Cir. 1997); Fuller v. Iowa Dep't of Human Servs., 576 N.W.2d 324, 328 (Iowa 1998); Courtney v. American Nat'l Can Co., 537 N.W.2d 681, 685 (Iowa 1995). Once a plaintiff sets forth a prima facie case, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for its actions. Fuller, 576 N.W.2d at 328. If the employer meets its burden, the plaintiff must prove that the employer's proffered reason is a pretext for intentional discrimination on the basis of disability. Id.Solvay argues that it is entitled to summary judgment on Royek's claim under the ICRA because (1) Royek cannot show she was disabled within the meaning of the ICRA and (2) she was not qualified to perform the essential functions of her job because of her excessive absenteeism. In the alternative, Solvay argues that Royek's "excessive absenteeism" is a legitimate, non-discriminatory reason for her termination which Royek cannot rebut.
Solvay's argument that Royek cannot show she was disabled centers on the fact that the medical record shows that by October, 1994, Royek was not under any work restrictions by her physicians. This argument overlooks the broad definition of disability under the ICRA. As the Iowa Supreme Court recently explained, a person is disabled if she "has a physical or mental impairment which substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment." Vincent v. Four M Paper Corp., 589 N.W.2d 55, 60 (Iowa 1999) (quotation omitted).
It is clear from the record that there is a genuine issue of fact about whether Royek's history of depression and musculoskeletal disorders constitute a disability or a record of a disability. Both disorders are recognized as disabilities under Iowa law. Vincent, 589 N.W.2d at 60 (musculoskeletal disorders); Fuller, 576 N.W.2d at 330 (depression). In light of the fact that Royek was hospitalized and missed work due to her conditions during August and September of 1994, there is also a genuine issue of fact about whether one or both of Royek's conditions substantially interfered with her major life activities. The fact that Solvay may have believed that Royek had fully recovered by 1995 does not mean that Royek was not disabled or had a record of a disability; rather, if true, it would tend to show that Solvay did not regard her as having a disability and perhaps that Solvay did not terminate her because of her disability.
Solvay's argument that Royek's excessive absenteeism shows that Royek either was not qualified for her position, or that Solvay had a legitimate, non-discriminatory reason for firing her, presents a closer question. In Falczynski v. Amoco Oil Co., 533 N.W.2d 226 (Iowa 1995), the Iowa Supreme Court upheld the trial court's factual finding that "chronic absenteeism" by one of two data entry operators "plainly prevented [the plaintiff] from performing the essential functions of her job." Id. at 232. In Falczynski, the trial court credited evidence that the employer had to reassign people when the plaintiff was absent, the employees who were reassigned could not complete their regular jobs, and the plaintiff far exceeded the employer's policy limiting absences. Id. at 229, 232. Similarly, in Cole v. Staff Temps, 554 N.W.2d 699 (Iowa 1996), the Iowa Supreme Court held that the plaintiff was not able to perform the essential functions of her job as a child care worker due to her absenteeism. Id. at 705-06. The court found that enforcement of the attendance policy is "necessary" because of the "delicate balance between the number of workers and children" and that the plaintiff, having twice been placed on probation, knew of the importance of the policy. Id.
In this case, by contrast, Solvay has not presented any specific evidence that Royek's absences prevented the biopackaging department from completing its work. More importantly, Solvay has not presented any evidence that Royek — after excluding whatever absences qualify for leave under the FMLA — violated the company attendance policy in 1994 or 1995. Finally, Solvay has not presented any evidence that its attendance policy was consistently enforced. Therefore, on the basis of the current record, the court will not grant summary judgment to Solvay on the basis that Royek was not qualified to perform the essential functions of her job.
Nonetheless, termination on the basis of absenteeism certainly qualifies as a legitimate, non-discriminatory reason for terminating an employee. Bailey, 172 F.3d at 1045; Hopper v. Hallmark Cards, Inc., 87 F.3d 983, 989 (8th Cir. 1996); Kinkead v. Southwestern Bell Telephone Co., 49 F.3d 454, 456 (8th Cir. 1995). It is also true that evidence of pretext for FMLA retaliation does not necessarily create a genuine issue of fact about pretext for disability discrimination. See Montgomery, 169 F.3d at 563 (Lay, J., concurring) (a plaintiff may not assert a theory of pretext which is inconsistent with her theory of discrimination); Rothmeier v. Investment Advisers, Inc., 85 F.3d 1328, 1337 (8th Cir. 1996) (same). In this case, however, Royek's theories of pretext for disability discrimination and FMLA retaliation are generally consistent. Therefore, the court believes that Royek's evidence of pretext for FMLA retaliation applies in the context of the disability claim as well. In addition, Royek has offered evidence that as late as June of 1995 she asked for a better rotation in her job duties to accommodate her musculoskeletal disorder, but was flatly rejected. See Courtney v. American Nat'l Can Co., 537 N.W.2d 681, 687 (Iowa 1995) ("Under Iowa law, an employer must make `a reasonable effort' to accommodate an employee's disability.") (quotation omitted). In fact, Royek contends there is evidence that it was the company's preferred practice to rotate employees, (Van Hauen Dep. 17-18), but that this policy was not followed with regards to her. Under these circumstances, the court will not grant summary judgment to Solvay on Royek's disability claim.
However, the court notes that to the extent Royek is claiming damages for permanent disability caused by Solvay's alleged failure to accommodate her impairments, her remedy for such personal injury damages is governed exclusively by tort law or Iowa's worker's compensation provisions. See Smith v. Blue Cross Blue Shield of Kansas, Inc., 102 F.3d 1075, 1077-78 (10th Cir. 1996).
3. Wrongful Discharge
Solvay moves for summary judgment on Royek's claim of wrongful discharge based on work-related injuries. Solvay argues that Royek's work-related injury was resolved by October of 1994 and that her sick leave was not related to any work injuries she may have sustained.Under Iowa law, employers may not terminate an employee in violation of a "well-recognized and defined public policy of the state." Phipps v. IASD Health Servs. Corp., 558 N.W.2d 198, 202 (Iowa 1997) (quotation omitted). The Iowa Supreme Court has held that an employee may not be terminated for seeking worker's compensation because "it is the public policy of this state that an employee's right to seek the compensation which is granted by law for work-related injuries should not be interfered with regardless of the terms of the contract of hire." Springer v. Weeks Leo Co., Inc., 429 N.W.2d 558, 560-61 (1988). In Springer, the plaintiff was terminated after she filed a worker's compensation claim and refused to sign a document stating that her carpal tunnel syndrome was not work-related. Id. at 559.
Although Royek's claim is not as strong as the plaintiff's in Springer, the court believes she has offered sufficient evidence to survive summary judgment. In addition to her work-related injury from August of 1994, Royek offered evidence that she believed her four-day absence in January of 1995 was work-related, but that Field told her "you can't go around telling people that it's because you worked on the air labeler." Royek also claims that in June of 1995, when she asked for an accommodation, Field suspected that she was just trying to avoid using a particular machine, the air labeler. Under these circumstances, the court will not grant summary judgment.
ORDER
For the foregoing reasons, the defendants' motion for summary judgment is DENIED on each of the plaintiff's claims. The court will initiate a conference call on Friday, August 13, 1999 at 8:30 a.m. to set a new trial schedule.