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Pick v. City of Remsen

United States District Court, N.D. Iowa, Western Division

August 27, 2014

STEVE PICK, Plaintiff,
v.
CITY OF REMSEN, PAIGE LIST, RACHAEL KEFFELER, KIM KELEHER, JEFF CLUCK, CRAIG BARTOLOZZI, and KEVIN ROLLINS, Defendants.

MEMORANDUM OPINION AND ORDER REGARDING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

MARK W. BENNETT, District Judge.

The former long-time operations director of a city's utilities department brings diverse but related claims under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., the Iowa Civil Rights Act ("ICRA"), Iowa Code Ch. 216, 42 U.S.C. § 1983; the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq., Title VII of the federal Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17, and pendent state law claims for defamation, intentional infliction of emotional distress, and wrongful termination against his former employer, supervisors, co-employees, and city officials. Defendants assert that they are entitled to summary judgment on all of the plaintiff's claims, while the plaintiff asserts that a reasonable jury could find in his favor on most, but not all, of his claims.

I. INTRODUCTION

A. Factual Background

As is my usual practice, I set out only those facts, disputed and undisputed, sufficient to put in context the parties' arguments concerning the defendants' motion for summary judgment. Unless otherwise indicated, the facts recited here are undisputed, at least for the purposes of summary judgment. I will discuss additional factual allegations, and the extent to which they are or are not disputed or material, if necessary, in my legal analysis.

1. The parties

Plaintiff Steve Pick resides in Remsen, Iowa. He was formerly employed as Operations Director of Remsen Municipal Utilities ("the Utility" or "Utility"). Defendant City of Remsen ("the City") is a municipality in the State of Iowa. Defendant Paige List resides in Remsen and is the City's Clerk. Defendant Rachael Keffeler resides in Remsen and is the City's Deputy Clerk. Defendant Kim Keleher resides in Remsen and is a member of the Utility's Board of Directors ("the Utility Board"). Defendant Jeff Cluck resides in Remsen and is the City's Mayor. Defendant Craig Bartolozzi resides in Remsen and is the City's former Mayor. Bartolozzi is currently the Utility Board's Chairman and is employed by the Plymouth County Sheriff. Bartolozzi, while Remsen's Mayor, asked then Utility Board members Steve Matgen and Tom Bacan to fire Pick. Bartolozzi also expressed his dissatisfaction with Pick to Don Kolker, another former Utility Board member.

There is a factual dispute about whether Mayor Cluck asked Don Kolker, then a Utility Board member, to fire Pick. Cluck denies this while Kolker contends that Cluck asked him to do so.

In January 2012, the current Utility Board was seated. Keleher, Bartolozzi, and Dean Douvia were appointed by Mayor Cluck. Bartolozzi is the Chairman. On January 1, 2012, Craig Reiter started work as the Director of Utilities. Reiter was hired by the former Utility Board. When the current Utility Board members took office, Pick's work hours were 7:00 a.m.-4:00 p.m. Pick's office was located in Remsen City Hall. The Utility Board instructed Pick to change his hours so that he worked from 8:00 a.m.-5:00p.m., the hours that Remsen City Hall was open. In the spring of 2012, Pick completed an evaluation of Keffeler. Bartolozzi thought Pick's evaluation was unfair and that there was a lack of communication in the office.

2. The Manual

The City and the Utility have a "Manual of Personnel Policies and Administration" ("The Manual"). The Manual's introduction states:

This manual of personnel policies and administration is designed to provide the employees of the City of Remsen and the Remsen Municipal Utilities a written record of the policies, responsibilities, rights, and benefits of their employment.

The Manual at 2; Defendants' App. at 110. Section 2.1 of the Manual was titled "Equal Employment Opportunity" and provides:

No appointment to or termination from a position with the City of Remsen or the Remsen Municipal Utilities shall be affected or influenced in any manner by any consideration of race, creed, sex, age, national origin, political opinion, or handicap. All persons shall have equal access to positions, limited only by their ability to do the work. Promotions, advancement, and training opportunities will be awarded without regard to any of the factors outlined above.

The Manual at 2; Defendants' App. at 110. The Manual contains the following "definition" of the City Clerk/Treasurer position: "This is administrative work involving accounting and record keeping for the city council and all city departments. Also acts as chief administrator and supervisor of all city departments, except the police department." The Manual at 14; Defendants' App. at 111. The Manual also has the following "characteristics" of this position:

Keeps records of licenses, permits and fees; keeps records of revenues and expenditures of city funds by modern and efficient accounting methods; attends and keeps records of all meetings of the city council as well as attend any committees/boards of the city as requested. Makes Treasurers reports to the city council and utility board and administrative reports to the city council; keeps personnel records; prepares payroll of city/utility employees; publishes ordinances; certifies documents. Performs other administrative duties at the direction of the City Council.

The Manual at 14; Defendants' App. at 111.

Section XII of the Manual governs termination of employment.[1] Paragraph 12.4 addresses discharge, suspension or demotion, and lists several examples of conduct constituting cause for discharge. The Manual provides that an employee, before dismissal, is entitled to an oral hearing before that employee's department head at which the employee is allowed to state their case. The Manual also states that, after an employee has the right to appeal his or her dismissal to the Remsen City Council ("City Council") or the Utility Board.

3. Pick's interactions with List

In July 2011, Pick published in minutes in the local newspaper that the Utility Director (Pick), had asked that the Clerk, List, get reports to him in a more timely fashion. List was "appalled" and "upset" by Pick's action, which she viewed as a public attack on her. List Dep. at 18-19; Plaintiff's App. at 38-39. As a result of Pick's action, List made a request to the City Council to remove from her duties the preparing of the Utility Treasurer report. List's request was granted in July 2011. After this occurred, List viewed her relationship with Pick as "Just not good. Downhill." List Dep. at 20; Plaintiff's App. at 40. Subsequently, two meetings were held with Pick, List, members of the Utility Board and members of the City Council to address issues in the working relationship between Pick and List. List believed that Pick persuaded people to call her at the office and harass her. The only evidence supporting her belief was that Pick knew the individuals who called List.

On January 12, 2012, List emailed new Remsen Mayor Jeff Cluck to inform him about how uncomfortable she and Keffeler were working with Pick. In her email, List wrote in pertinent part:

I feel VERY uncomfortable working at this office, knowing the person right next to me is going to try to sue me, amongst all the other things that have occurred.
I told Barry I would like to request that he be removed from this building and temporarily be moved to the utility shop or somewhere else. Either that, or I am requesting personal leave of absence, and can still do most my [sic] work that needs to be done at home or come in after hours to get it done.
I prefer the first, as I know Rachel feels extremely uncomfortable also, and I wouldn't want to leave her alone with him. Rachel and I don't know why we have to be the ones being punished through this whole deal when we didn't do anything wrong?
Please advise. Thanks.

List Email at 1; Plaintiff's App. at 118.

4. Allegations about missing money

Around November 30, 2011, List told then Mayor Bartolozzi that Adam Gesink and Ben Jungers, Utility workers, told her that Terry Maass, another Remsen utility worker, told them that he and Steve Pick found money in the desk of Ron Mayer, a deceased Utility employee, and that Pick took the money from the desk, telling Maass that he would "take care of it."[2] List Dep. at 26; Defendants' App. at 43. Gesink and Jungers came to the Utility office to give a check to Rachael Keffeler and told her the story, which List overheard. Initially, List told the story to Bartolozzi in the form of a hypothetical, without mentioning any names. After Bartolozzi questioned her about the story, List related the story as originally told by Gesink and Jungers.

List never related this story to Pick. Instead, Pick learned about the allegation from Maass. Maass told Pick that Remsen Police Officer Michael Sparr told Maass that List made this allegation to Bartolozzi. Bartolozzi had a conversation with Pick about the missing money. Pick told Bartolozzi that he didn't know anything about any money being found. Pick asked Bartolozzi why List accused him of stealing the money. Bartolozzi replied that he did not know. Pick took Bartolozzi's answer as confirmation that List had accused him of stealing money.

Bartolozzi claims that he never said anything to Sparr about missing money. Sparr, however, claims that Bartolozzi asked him if he had heard anything about money missing from Mayer's desk. Sparr went to Maass and asked about the missing money. Maass claims that he and Pick did not clean out Mayer's desk and that he never had a conversation with Gesink and Jungers on the subject.

5. Trail camera in Pick's office

At some point, Pick placed a trail camera in his office. The trail camera was movement activated, taking a still photograph and then a 15 to 20 second video.[3] On January 3, 2012, Remsen Chief of Police Kevin Rollins removed Pick's trail camera and the trail camera's memory card from Pick's office. He looked for an on/off switch and could not find one, so he opened the camera, removed the memory card, shut the camera off and placed everything in a bag. Rollins later stored the bag in an evidence closet at the Remsen Police Department.

Rollins has been Remsen's Chief of Police for 34 years. Rollins did not apply for a search warrant prior to seizing Pick's trail camera. At the time Rollins removed Pick's trail camera, he knew it was Pick's property. Rollins removed Pick's trail camera because he didn't believe that there was any reason for the trail camera to be in Pick's office and because Mayor Cluck requested that he remove it. Bartolozzi was not involved in the seizure of Pick's trail camera. Pick was out of town, on vacation, when his trail camera was removed. When Pick returned from vacation, he discovered that the trail camera had been removed and asked Rollins to return it. Rollins refused until he was given clearance by Mayor Cluck and/or the City Attorney. Pick then had his nephew, Michael Merrick, an attorney, write a letter to the city on January 11, 2012, demanding the return of Pick's trail camera. A few days later, Rollins returned Pick's trail camera.

When Pick left for vacation, he left the door to his office open, his computer on and his desk unlocked.[4] In the past, when other employees needed something on or in Pick's desk, and he was not in his office, they felt free to go and get it themselves.[5] The documents in Pick's desk and on his computer related to his work. The documents belonged to Pick's employer. The City owns the desk and the computer that were in Pick's office. The programs on Pick's computer were accessible on all of the other computers used by the Utility. Those programs, and the data they contained, belonged to Pick's employer. Pick never told anyone to stay out of his office if he was not there. The drawers on Pick's desk did not lock. Most of the contents of Pick's desk related to his work for the Utility. There was nothing on Pick's work computer that was confidential or sensitive.

6. Request for audit

On January 23, 2012, the Utility Board met in regular session. At the meeting, Remsen City Attorney Barry Thompson recommended that the "[deposit] account should be reviewed on a regular basis." Utility Board Minutes at 2; Plaintiff's App. at 146. He also recommended that the Utility Board "contact an independent auditor to perform and audit and review and correct any deficiencies that they may find." Utility Board Minutes at 2-3; Plaintiff's App. at 146-47. Keleher then moved to bring in an independent auditor to review "the Special Collections Account." Keleher's motion passed. Keleher also recommended that the Utility Board use an outside accounting firm, rather than the current City Auditor, "in order to bring in a fresh set of eyes to the situation."[6] Utility Board Minutes at 3; Plaintiff's App. at 147.

On January 26, 2012, Keleher sent an email to Mayor Cluck. In that email, Keleher wrote, in part:

I believe Craig was going to Steve [Pick] and also have documents secured to prevent alteration or absconding with them even if Steve was going in after hours. Craig was going to direct Steve that he is not allowed in the office while on leave. Craig will take the lead on getting the audit secured... not Steve, and get it started asap. If there is wrong doing, it will all break loose, no matter if Steve is hiding or altering documents.

Keleher Email at 1; Defendants' App. at 73 (ellipsis in original). Mayor Cluck forwarded Keleher's email to List and Keffeler. When Keleher wrote that email, she and her fellow Utility Board members had been on the Utility Board for less than a month. She knew that at least one citizen was claiming there were "issues" with utility billings and collections. Keleher also wrote the email because she was shown a handwritten log in Pick's handwriting concerning utility deposits and she noticed that one of the listed deposits was one she had made but never got back.

Pick was on medical leave, but was going into work after hours. The Utility Board did not know why and did not approve this practice. In her January 26th email to Cluck, Keleher noted that Bartolozzi was going to tell Pick that he was not allowed in the office while on leave. Keleher subsequently acknowledged that while Pick's going into work after hours, while on leave, may have been seen as suspicious, there are possible valid reasons for a person to go back to their office after hours even if the person is on vacation or medical leave. Keleher had no evidence that Pick was altering or hiding documents.

7. Online banking and completion of rate study

The Utility Board asked Keffeler to look at the option of online bank statements so that it could monitor its accounts more closely. In the past, the account had been overdrawn on occasion. No one suggested that closer monitoring was needed because Pick had either done something wrong or failed to do something he should have done. Pick's name was never mentioned during the discussion. Pick interpreted the Utility Board's request as an insinuation that he was doing something wrong. At a regular meeting of the Utility Board, Keffeler noted in the minutes that a consultant's rate study was not yet complete because the consultant had not been provided with the information that he needed to complete the study.

8. Pick's medical leaves and related activities

On January 17, 2012, Pick was seen by Physicians Assistant Kay Kosters at the Family Medical Clinic in Le Mars, Iowa. He was seen due to his increased anxiety and stress, and difficulty sleeping. Pick reported that he had been experiencing the increased stress requiring medical attention for approximately two months. He also reported that he had been experiencing some increase stress for the prior year. PA Kosters prescribed medication to Pick to help with stress and sleep. On January 23, 2012, after a telephone call from Pick, PA Kosters provided Pick with a note to take 7 to 10 days off of work, Pick provided this note to Bartolozzi, who was the new Chairman of the Utility Board.

Over the next several months, List sent Mayor Cluck several more emails. In one of these emails, List again requested removing Pick from the Utility office. In others, List informed Mayor Cluck about the number of days off that Pick had taken and what hours Pick was putting down on his time cards.

At the February 21, 2012, the Utility Board "requested that Director Pick and Deputy Clerk get them a list of their day to day activities and responsibilities so that the board can gain a better understanding of what each employee does." Utility Board Minutes, Feb. 21, 2012, at 5; Plaintiff's App. at 153. As a result of this review, the Utility Board discovered that the monthly treasurer and director reports were done manually. The Utility Board purchased software so that these reports could be computer generated. The Utility Board also learned that Pick was responsible for taking and publishing minutes. The Utility Board had previously received citizen complaints that minutes were not being timely published. That task was reassigned to Keffeler.

On March 15, 2012, Pick returned to see PA Kosters for a follow up visit concerning his anxiety. Pick reported that the thought of going to work was difficult for him. PA Kosters diagnosis was anxiety/depression and recommended that Pick take off of work and see a counselor. PA Kosters provided Pick with a note to excuse him from work until April 9, 2012.

On April 6, 2012, Cluck emailed the entire Utility Board and requested that Pick be terminated, writing:

OK guys when are we going to say enough is enough! I know I'm not in on everything you guys know and or have discussed about Steve but this thing needs to be put to bed. This guy is just pushing us to the breaking point and I believe we are at the point that a decision needs to be made now. The employees are all talking about it, not good. I believe we need to take action and get this City back on track for the good of the citizens. I know you guys need to have your ducks in a row before any action is taken but it just keeps piling up, when do you just say that's it??? I don't mean to sound harsh about this but I for one have never worked any place that would let me get away with the amount of things that Steve has done over the years, its [sic] time we do something. I for one would not be able to work or lets [sic] say function to the fullest of my ability with what those two girls have had to put up with. I would say they could wage a law suit against us for letting this go so long and making them work in these conditions. He needs to be terminated not put on leave. I take my hat off to you guys for the job you have been asked to do and are doing a very fine job might I add. I have the utmost confidence you will do the right thing.

Cluck Email at 1; Plaintiff's App. at 131.

On April 9, 2012, List emailed Mayor Cluck that she believed that if Pick's employment were to end that "I'm not too sure he can't retire with full IPERS benefits next month." List Email at 1; Plaintiff's App. at 122. In that email, List also expressed her "hope this does get laid to rest... sooner than later!" List Email at 1; Plaintiff's App. at 122 (ellipsis in original).

On May 21, 2012, the Utility Board promoted Reiter to Superintendent of Utilities. Reiter assumed responsibility for meeting with all electrical and gas inspectors. He also supervises and coordinates projects being handled by the Utility's field workers. These duties were Pick's previously.

On June 13, 2012, Mayor Cluck discussed with Pick the fact that Cluck thought Pick was using too much sick leave. On June 14, 2012, Cluck sent an email to Pick, confirming their conversation from the day before and concerning Pick's use of sick leave, writing:

Thank you Steve. I do apologize for jumping up and down your neck yesterday but I just get tired of this crap between you guys. I here [sic] it from both sides not just one side. I guess I just don't understand why you have been taking so much time off lately is why I asked about how many days have you worked this month. I know you have sick days banked but sick days are for sick days not personal days. It just appears that they are being abused, I hope this is not the case. With Rachael out I would hope you can follow up with her work that we need done for the city, what that might be I have no idea. You will need to ask Paige what she needs from you to keep things rolling for both the city and the utilities department.

Cluck Email at 1; Plaintiff's App. at 90.

On June 15, 2012, Bartolozzi sent an email to the other Utility Board members and included List, Keffeler, and Mayor Cluck on that the email, but did not send the email to Pick. In the email, Bartolozzi states in part:

I think it's time to decide if the position of Utility Director is needed. If I remember correctly, this position was created when Meyer was supervisor of the crew, but was not getting anything done, nor could he get along with people. Now that we have made Craig a supervisor, and I think he will be able to handle the job well, so why have the extra position. Also I still think we need a city manager to be over Paige and Rachel and that person answer to both boards. We need to discuss the future of the utility board and its function.

Bartolozzi Email at 1; Defendants' App. at 75. At the next Utility Board meeting, on June 25, 2012, the issue of the need for the Utility Director position was not mentioned. Pick was present at the June 25th Utility Board meeting.

On June 26, 2012, List sent an email to Mayor Cluck informing him that Pick was gone from work again and that Pick had only been to work 9 out of the 21 work days that month. Also on June 26, 2012, Scott Hindman, Pick's attorney, sent a letter to Remsen City Attorney Barry Thompson. In the letter, Hindman informed Thompson of the mistreatment that Pick was experiencing and that he was considering taking legal action to enforce his rights under federal and state law. In closing, Hindman wrote:

In lieu of a long, drawn out and expensive legal battle, Mr. Pick is willing to discuss a separation from his position with the Utilities Department in exchange for a reasonable severance package. If the City is willing to entertain such a proposal, please so inform me within 10 days so that negotiations can begin. If the City refuses Steve's reasonable proposal, he will be left with no option but to pursue his legal claims in court and I request that the City's insurance company be so informed.

Hindman Letter at 3; Plaintiff's App. at 89. On June 28, 2012, Keffeler sent an email to the Utility Board members informing them of a special closed session meeting on July 2nd with the Remsen City Council to discuss Hindman's letter.

On June 28, 2012, Pick was seen by Dan Gillette, M.D., a psychiatrist. Pick reported that he was experiencing a high level of stress at the time. Dr. Gillette diagnosed Pick with "Major depressive disorder, single episode, moderate. Adjustment disorder with anxious mood." Plaintiff's App. at 206. Dr. Gillette also noted that Pick was under a high level of work related stress and that Pick had difficulty functioning. Dr. Gillette recommended that Pick take a leave of absence from work, and gave him a note excusing Pick from work until July 16, 2012. Pick gave Dr. Gillette's note to Bartolozzi.

During Pick's leaves from work, the Utility Board assigned some of Pick's "office" work to Keffeler. Keffeler began assembling meeting packets and the agenda for Utility Board meetings. She was also given the authority to code invoices, sign checks, and pay bills. Keffeler also started reconciling monthly bank statements and took on more of the responsibility for dealing with questions from Utility customers regarding such matters as billing errors, complaints, and establishing new accounts.

On July 12, 2012, Dr. Gillette again saw Pick. Pick again reported that he was experiencing a high level of work related stress. Dr. Gillette's diagnosis remained major depressive disorder and he recommended that Pick continue his medical leave. Dr. Gillette gave Pick a note excusing him from work for three weeks. This note was emailed to Bartolozzi. Bartolozzi, in turn, forwarded Pick's email to Keffeler, List, Keleher, Cluck, and Dean Douvia.

9. Elimination of Pick's position

On July 16, 2012, the Utility Board voted to eliminate Pick's position. Pick was not present at the Utility Board's meeting on July 16, 2012. Pick was sent a letter the following day from Bartolozzi informing him that his position had been eliminated effective "immediately." Pick was instructed to return all keys and other city property. ...


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