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Fitzgerald v. Hy-Vee, Inc.

Court of Appeals of Iowa

March 8, 2017

TIMOTHY FITZGERALD, Plaintiff-Appellant,
HY-VEE, INC. d/b/a HY-VEE and RYAN ROBERTS, Individually, Defendants-Appellees.

         Appeal from the Iowa District Court for Polk County, Jeffrey Farrell, Judge.

         Timothy Fitzgerald appeals from a district court's ruling granting summary judgment in favor of Hy-Vee, Inc. and Ryan Roberts. AFFIRMED.

          Megan C. Flynn and Michael J. Carroll of Coppola, McConville, Coppola, Carroll, Hockenberg & Scalise, P.C., West Des Moines, for appellant.

          Kermit B. Anderson of Finley Law Firm, P.C., Des Moines, for appellees.

          Heard by Mullins, P.J., and Bower and McDonald, JJ.

          MULLINS, Presiding Judge.

         Timothy 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.

         I. Background Facts and Proceedings

         Fitzgerald 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 2012.

         In July 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.

         Roberts 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.

         Soon 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 leave.

         Fitzgerald 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.

         Thereafter, 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.

         Before 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.[1] 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.

         Fitzgerald 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.

         On 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.[2] 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.

         The 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.

         During 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 pain medications.

         Hy-Vee 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.

         Text 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' 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 ...

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