from the Iowa District Court for Polk County, Jeffrey
Fitzgerald appeals from a district court's ruling
granting summary judgment in favor of Hy-Vee, Inc. and Ryan
C. Flynn and Michael J. Carroll of Coppola, McConville,
Coppola, Carroll, Hockenberg & Scalise, P.C., West Des
Moines, for appellant.
B. Anderson of Finley Law Firm, P.C., Des Moines, for
by Mullins, P.J., and Bower and McDonald, JJ.
MULLINS, Presiding Judge.
Fitzgerald appeals from a district court's ruling
granting summary judgment in favor of Hy-Vee, Inc. and Ryan
Roberts. He asserts the district court erred (1) by failing
to view the facts in the light most favorable to him, the
nonmoving party; (2) in its analysis of his prima facie case
of discrimination and in holding he had failed to create a
fact issue as to pretext; and (3) by holding his
failure-to-accommodate claims were time-barred. We affirm.
Background Facts and Proceedings
began working for Hy-Vee as a night stocker in December 1989.
He held many positions with Hy-Vee over the years, but, in
2003, Fitzgerald became a manager in the international food
service department, a position he held until his discharge in
2011, Fitzgerald suffered a knee injury and underwent surgery
to repair a torn meniscus and scarred cartilage. From July
21, 2011, through September 25, 2011, Fitzgerald was on
leave, pursuant to the Family and Medical Leave Act (FMLA),
for his knee surgery and recovery. Fitzgerald returned to
work in late September with a restriction that he was to sit
as needed for pain and swelling. Fitzgerald claims he gave
the doctor's note to the store's manager of
operations, Katie Good. Good testified in her deposition that
she was not aware of Fitzgerald's restrictions.
was the store director at the Hy-Vee location where
Fitzgerald worked. The store director is the highest
management employee at each store and oversees all store
operations, including decisions regarding employment.
after Fitzgerald returned, Roberts called Fitzgerald to his
office to discuss a disparaging remark about a coworker that
Fitzgerald had allegedly made. According to Fitzgerald,
Roberts told Fitzgerald his department could "operate
without him." In a subsequent meeting, Roberts allegedly
told Fitzgerald he had treated his FMLA leave like a
"vacation, " and if Roberts had been the one on
leave, he still would have come into the store "two or
three times per week" while recuperating. Roberts denied
or did not remember making these remarks to Fitzgerald.
However, Roberts testified he remembered telling Fitzgerald
several employees had made complaints about Fitzgerald upon
his return when there had been no complaints while he was on
also claims that, in early October, Roberts passed Fitzgerald
on the sales floor, saw him limping, and asked him how he was
doing. Fitzgerald informed Roberts he was in a lot of pain,
and Roberts allegedly suggested to Fitzgerald that he should
get stronger pain medications and a second opinion regarding
the swelling of his knee. In mid-October, Roberts asked
Fitzgerald to cut staff hours from his department and, as a
result, Fitzgerald was required to perform more physical work
and stand for long periods of time without resting.
Fitzgerald told Roberts he was already in pain and the new
requirements were too physically demanding for him. Roberts
allegedly responded, "That's between you and your
doctor." At his deposition, Roberts did not recall the
first incident but agreed he had asked Fitzgerald to cut
staff hours and reduce labor costs. Roberts did not remember
Fitzgerald making complaints about his injury.
Fitzgerald went to see his psychotherapist, who instructed
Fitzgerald to take two weeks off of work and consider filing
a harassment complaint against Roberts. On this advice,
Fitzgerald spoke with Randi Powell in Hy-Vee's human
resources department and filed an internal complaint against
Roberts. According to Fitzgerald, Powell informed him there
had been previous complaints made against Roberts.
Consequently, Hy-Vee conducted an investigation of Roberts
and placed Fitzgerald on leave for two weeks. Roberts was
aware Fitzgerald had filed a complaint against him and
testified he was not upset with Fitzgerald but, rather,
disappointed Fitzgerald had not communicated his complaints
to Roberts directly.
his leave ended in November 2011, Fitzgerald returned to
Hy-Vee to assist with preparation for a holiday celebration.
Hy-Vee's vice president of operations, Laura Fulton,
spotted Fitzgerald helping with the preparations and told him
that, if he had not been released to work by his doctor, he
should not be working in the store, even if he was
volunteering. Fulton allegedly told Fitzgerald the
investigation of Roberts had revealed Roberts had issues he
needed to work on and Fulton intended to work with him on his
issues. Fulton also told Fitzgerald he needed to take things
"less personal" and maybe he was "overly
sensitive." Fulton requested Fitzgerald bring in his
work restrictions before he returned to work. Fitzgerald
obtained a new doctor's note, which permanently
restricted him to sitting at least half of every hour.
Fitzgerald claims he placed the note on Roberts's desk,
which was customary for employees to do when Roberts was not
in his office. Roberts denied receiving the note or being
aware of Fitzgerald's restrictions. Roberts also stated
Fitzgerald never requested an accommodation.
contends Roberts ignored his work restrictions, which caused
ongoing pain and swelling in his knee. Fitzgerald claims he
did not make any further complaints because he believed they
would result in no action or an adverse action for himself.
To deal with the pain and swelling in his knee, Fitzgerald
began abusing prescription pain medications and became
addicted as a result. When the pain medications became less
effective, Fitzgerald started abusing alcohol. Fitzgerald
claims he complained about the pain and swelling in his knee
to his coworkers frequently and Roberts knew of his
addictions because Fitzgerald was required to disclose the
medications he was taking to Roberts and when his dosages
increased. He further asserts his coworkers and managers knew
he was struggling with addiction because he was the subject
of running jokes among his coworkers for his odd behavior,
including his "overly enthusiastic use of the intercom
system to make store announcements." Additionally, in
Fitzgerald's January 2012 performance review, Roberts
wrote: "Tim, [w]hen you are on, there is no one that can
match your abilities. Be more consistent with this. You have
days where its clear you are struggling. Let me know what I
can do to help you with this so we can move forward."
However, Fitzgerald did not tell Hy-Vee or Roberts that he
was addicted to pain medications or alcohol and did not ask
for help related to his addictions until August 31, 2012.
August 30, 2012, Fitzgerald was talking to another employee
near his department on the sales floor. During their
conversation, Fitzgerald referred to another food service
manager, Suzanne Obermeier, as a "cunt, " loud
enough for Obermeier to overhear what was said. Fitzgerald
asserts he and Obermeier were managers of departments in
close proximity to one another and had had differences about
sharing workspace but, overall, he got along with Obermeier
and never had any problems. Obermeier was greatly offended by
Fitzgerald's comment and reported it to Rusti Subject,
who was the manager of perishables and the direct supervisor
of Fitzgerald and Obermeier.
following day on August 31, Subject reported the incident to
Roberts who had been out of the store most of the week
helping set up for a local event. At Roberts's request,
Subject confronted Fitzgerald about the comment and another
complaint by Obermeier that Fitzgerald had called her a
"bitch" that morning. Obermeier was so upset about
Fitzgerald's comments she threatened to quit. Fitzgerald
admitted to Subject the first occasion of using an offensive
reference to Obermeier but denied the second one. Fitzgerald
also stated he had been joking and did not know his comment
had offended Obermeier. Fitzgerald claims he apologized to
Obermeier and believed the matter was settled. After Subject
spoke with Fitzgerald and confirmed the first comment had
been made, he relayed the information to Roberts, who
contacted the Hy-Vee corporate office about the incident.
Later that day, Roberts and Linda Threlkeld, the assistant
vice president of human resources, met with Obermeier and
Subject separately at the store. Obermeier confirmed both
incidents had occurred and that she was upset about them.
Subject also confirmed at least the first incident and stated
Fitzgerald had told him it was a bad joke. Roberts and
Threlkeld determined Fitzgerald had violated the
company's anti-harassment policy, which defines
discriminatory harassment to include "verbal . . .
conduct that degrades, offends, is negative toward, and/or
shows hostility toward an individual because of the
individual's . . . sex." The policy further provides
any violation "may result in discipline, up to and
including discharge." Roberts and Threlkeld then called
Fitzgerald in to discuss the incidents.
the meeting, Fitzgerald admitted the first incident but again
denied the second. He told Roberts and Threlkeld his comment
about Obermeier had been a joke. Roberts and Threlkeld
informed Fitzgerald he had violated Hy-Vee's
anti-harassment policy and his employment was terminated.
Fitzgerald pleaded with Roberts in an attempt to save his job
and disclosed he had made the comment because he was addicted
to pain medication and alcohol and needed treatment.
According to Roberts, that was the first time Fitzgerald had
mentioned any drug use or addictions. At Fitzgerald's
unemployment insurance appeal hearing in May 2013, he
testified it was only after the incident with Obermeier that
he realized he had a "problem." Roberts, Subject,
and Good all testified there was no indication that
Fitzgerald was suffering from alcoholism or an addiction to
and Roberts contend Fitzgerald's employment was
terminated during this August 31, 2012 meeting. They assert
Fitzgerald became upset and asked if he could transfer to
another store, and they responded it would be up to the
directors at other stores whether to hire Fitzgerald.
Threlkeld allegedly told Fitzgerald his termination would not
be processed until the following Monday after the pay period
ended and Fitzgerald was paid the vacation he was owed for
the holiday. Hy-Vee and Roberts claim they informed
Fitzgerald that he could transfer but it was made clear to
him that his employment at that location was terminated as of
August 31, 2012. Fitzgerald claims Roberts made a phone call
for Fitzgerald during the meeting to ask about a transfer for
Fitzgerald to another store. Fitzgerald also claims he
believed his job was spared based on the statements that his
termination would not be immediately processed and he could
transfer to another store. He contends Roberts and Threlkeld
did not give him a timeframe for when his termination
paperwork would be processed or even that it would be
processed at all.
messages between Fitzgerald and Roberts that evening reveal
Roberts notified Fitzgerald of different openings at nearby
stores and wished him luck in finding a transfer. Fitzgerald
responded, "Thankyou for your support, sorry I put you
though this. I hope it strengthens me." Fitzgerald also
wrote: "We take so much for granted, please tell staff
it was an issue with my health? I don't.want.to leave
disgraced, its still my home." The following morning,
Fitzgerald sent Roberts a text stating: "Ryan, yesterday
afternoon was a haze? I need clarification ..... When Linda
said she wouldn't term me, does that mean I can transfer
if the opportunity arises.? So I don't [lose] health
care? . . . I'm asking because theirs an opening for.a
full time kitchen clerk at [another store]." Roberts
responded, "That's right. I ...