VICKI L. McCREA, Plaintiff-Appellant,
CITY OF DUBUQUE, Defendant-Appellee.
from the Iowa District Court for Dubuque County, Thomas A.
plaintiff appeals from the district court's ruling
following a bench trial, denying her claims against her
employer, the City of Dubuque, for retaliation for use of
FMLA leave, retaliation for filing civil rights actions, and
for failure to accommodate. AFFIRMED.
J. Roth Richardson of Roth Law Office, P.C., Dubuque, for
Reddick of Kane, Norby & Reddick, P.C., Dubuque, for
by Potterfield, P.J., and Doyle and Tabor, JJ.
POTTERFIELD, Presiding Judge.
McCrea appeals from the district court's ruling following
a bench trial, denying her claims against her employer, the
City of Dubuque, for retaliation for filing complaints with
the Iowa Civil Rights Commission (ICRC), retaliation for
taking time off work pursuant to the Family and Medical Leave
Act (FMLA), and failure to accommodate a disability. McCrea
maintains the district court misapplied the law and made
errors in its findings of fact. She asks that we reverse the
district court's rulings on her claims and remand for the
determination of damages.
Background Facts and Proceedings.
began working as a secretary for the City in 1990. She worked
in two other departments before being hired by the water
department in 2003. In her position with the water
department, McCrea worked for Robert Green, the water
department manager, and her direct supervisor, Jacqueline
Johnson, the plant manager. This continued until McCrea was
fired in June 2014.
2007, Randy Peck, the City's personnel manager, wrote
McCrea a memo that stated, in part, "I know that your
work performance is exemplary and I commend you for the
professional manner in which you carry out your
a year later, McCrea received her first written reprimand. On
June 6, 2008, Green issued a written memo to McCrea. It
stated, "The purpose of this memorandum is to identify
your unacceptable work performance." It listed a number
of issues, including, "Reporting late to work,
socializing on personal cell phone, working on personal tasks
at your desk, extended lunch breaks, and leaving work
early." It also stated that McCrea would be required to
fill out a daily activity worksheet and a telephone log, and
to record her time "by means of the time clock."
According to McCrea's undisputed testimony, she was only
required to complete the tasks meant to remedy the stated
issues until September 2008. At a meeting with Green and
Johnson in September, Green "went through [her] log
books. He was very happy with [her] performance, told [her
she] didn't have to punch in and out anymore, that [she]
didn't have to log her work."
January 2012, Johnson wrote an "affidavit of
character" for McCrea to use in her divorce proceedings.
In it, Johnson described McCrea as "a valued employee of
the city for over 20 years" and "very
conscientious, dependable and has always been enthusiastic to
help take on special assignments such as volunteering to help
with presentations to school children as part of the Every
Child Every Promise initiative and being part of the Employee
2012, McCrea both divorced-she separated from her husband in
January 2012 and the divorce was finalized in September
2012-and lost her mother to cancer. As the district court
found, "Both of those events were emotionally difficult
for Vicki, and both caused her to spend some additional time
focusing on non-work matters. At some point in 2012, Vicki
applied for FMLA leave, and that request was granted."
The exact dates are unclear, but from her testimony, it seems
McCrea was on FMLA leave from February 7 until March 20,
2012, while her mother was dying. Additionally, following her
mother's death in early 2012, McCrea-who was an executor
of her mother's estate-took off a number of Thursdays and
Fridays in order to travel to the Quad Cities to deal with
her mother's estate.
the same time, McCrea would complain to Johnson that she felt
Green was ignoring her. She gave as an example that Green
often did not or would not say "good morning" to
her. Green was also complaining to Johnson about McCrea;
Green told Johnson he was concerned about McCrea's work
performance and how frequently she was away from work.
Johnson told McCrea about the comments Green had made and
warned her that Green was watching her on the building's
surveillance to see when she arrived and left work.
scheduled a meeting with Peck to discuss the
"communication issues" she was having with Green.
Peck advised her that she should bring the issues to
thereafter, in August 2012, McCrea scheduled a meeting with
Green, Johnson, and Mike Brekke, a long-term City employee
and the water distribution supervisor. At the meeting, McCrea
advised everyone that she had "been to human rights and
personnel again and they advised that [they] try to work this
out and communicate amongst ourselves to, you, know resolve
the issues." According to McCrea, Green became angry at
October 2012, Green and McCrea-along with some others-had a
meeting regarding "areas of concern" in
McCrea's work performance. Green typed notes sometime
after the meeting, but a written copy was never provided to
McCrea. However, the notes were admitted as an exhibit at
trial. According to the notes and Green's testimony,
Green discussed McCrea's work schedule at the meeting
because of the "several times" McCrea was five to
twenty-five minutes late arriving to work. The notes then
indicate McCrea was late on October 31; November 2, 6, and
29; and December 18 and 21, 2012. Additionally, McCrea was
expected to take a thirty minute lunch break and thirty
minutes "to pick up the mail at city hall." Green
noted, "On several occasions, she . . . left the
facility at or about 11:30 a.m. for lunch and to pick up the
mail at City Hall and [had] not returned until 12:45-1:15
p.m." He also asserted that there were days McCrea did
not stop by city hall to get the mail "though taking the
extra time allowed during her lunch break." Green listed
concerns about McCrea's use of her personal cell phone
throughout the day and personal use of City's copier and
fax machine, despite being told not to do so. He also
asserted that McCrea was both using an improper method for
requesting time off (often doing so the day of or simply
writing him a note that she had left for the day without
getting approval before doing so) and that there were
"discrepancies" in her reporting of her hours to
January 7, 2013, Green sat down with the city manager,
Michael Van Milligen, for the purpose of requesting
permission to fire McCrea. Green prepared a four-page memo
detailing his reasons for requesting permission- largely a
copy of his notes following the October meeting. Van Milligen
refused to authorize the termination; he was concerned the
incidents had not been documented as they occurred. He told
Green to document any incidents going forward. Because of
their friendship, Johnson told McCrea about the meeting
between Green and Van Milligen.
time, Johnson did not feel that McCrea should be fired.
Johnson testified, "Some of it was concerns about the
disciplinary actions that Bob had- Bob Green had wanted to
take with Vicki, that I felt that they were a little
stringent because there was no written documentation to begin
with." Additionally, in early January 2013, Johnson told
the assistant city manager she had concerns Green was
dissatisfied with McCrea's work but he was not actually
telling McCrea about the issues. Johnson indicated she
thought there were other employees whose work performance was
worse, but who were not being noticed or disciplined, and
noted that Green personally did not like McCrea. Johnson also
reported that Green "exhibits bully behavior and
actually says he likes to intimidate people."
next day, January 8, 2013, McCrea sent Peck a letter,
claiming her work environment had "greatly impacted
[her] anxiety issues over the past three years." She
requested to transfer into an open position-account clerk-at
the water and resource recovery center "as an
accommodation for [her] anxiety." In response, Peck
requested a written statement from McCrea's treating
physician describing her functional limitations as pertained
to her position and "what, if any, accommodations would
allow [her] to perform the essential functions of [her]
position." McCrea provided Peck a letter from her
doctor, which stated:
[McCrea] has no limitations in performing the essential
functions outlined in the job description you provided [of
her current position-secretary].
Her health has been impacted by stress and anxiety this past
year due to many variables in her life. She also reports that
her work environment has contributed and increased her
anxiety. This is due to the relationship between her
department manager and herself. The increased stress and
anxiety levels have led to a need to increase her medications
and the amount of counseling she has been seeking.
Being in a negative work environment could impact the
performance of any employee. [McCrea] is quite capable of
performing every essential function outlined in her job
description as she has done for the past 22 years with the
city as long as she is not in this type of working
receiving the letter from her doctor, Peck called McCrea and
told her she would not be receiving the requested transfer.
According to his testimony, Peck denied her request because
her doctor had stated she had no limitations and was capable
of performing the essential functions of the job she was in.
August, Peck asked the IT department to run a report of
McCrea's internet usage for the previous six months
because Green felt that McCrea was using an excessive amount
of time on non-work-related websites. Once he received the
report, Peck agreed that the use of the internet for non-work
needs was excessive, but no formal discipline action was
taken against McCrea.
mid-August, while talking to Brekke, McCrea made a comment
that "if she goes down, everybody else is going down
also." Brekke spoke to Green about the incident, who
asked him to write a memo documenting what happened. Brekke
eventually did so in October 2013. The memo also noted that
McCrea was "distraught and emotional" when she made
the comment, and "[h]er tone and body language . . . was
very out of line and threatening." Brekke also stated,
"There have been times in the past [McCrea] has made
comments to me that I feel were out of line and borderline
August, McCrea had a meeting with the assistant city manager
and reported that she was having the same issues with Green
she had been having in January. She reported she felt Green
was looking for a way to fire her and that she felt "she
[was] being held to the letter of the law with policies but
other employees [were] not." McCrea also tried to set up
a meeting with Peck to discuss the "hostile work
environment" she continued to experience.
September 10, 2013, McCrea filed her first complaint with the
ICRC. She claimed discrimination based on sex, her mental
disability (anxiety), and retaliation for complaining to the
personnel department and city management about her boss. She
claimed she had been denied accommodations, the City failed
to hire her (based on the denied transfer request), and she
had been harassed.
September 27, Johnson and Green sent McCrea a memo
summarizing a discussion that had taken place two days
earlier. It stated:
At approximately 4:00 p.m. on Wednesday, September 25, 2013,
we had a discussion about the 2 hours leave time that you had
taken on Friday, September 20, 2013. This time was requested
at 8:25 a.m. on September 20, 2013 as two hours of vacation
time for September 20, 2013. Since this request did not come
to my attention until after you had left the facility at 2:00
p.m. on September 20, 2013, I was unable to ...