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McCrea v. City of Dubuque

Court of Appeals of Iowa

March 8, 2017

VICKI L. McCREA, Plaintiff-Appellant,
CITY OF DUBUQUE, Defendant-Appellee.

         Appeal from the Iowa District Court for Dubuque County, Thomas A. Bitter, Judge.

         The 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.

          Emilie J. Roth Richardson of Roth Law Office, P.C., Dubuque, for appellant.

          Les V. Reddick of Kane, Norby & Reddick, P.C., Dubuque, for appellee.

          Heard by Potterfield, P.J., and Doyle and Tabor, JJ.

          POTTERFIELD, Presiding Judge.

         Vicki 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.

         I. Background Facts and Proceedings.

         McCrea 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.

         In May 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 responsibilities."

         Approximately 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."

         In 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 Recognition committee."[1]

         In 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.

         Around 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.

         McCrea 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 Green's attention.

         Shortly 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 the meeting.

         In 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 payroll.

         On 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.

         At that 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."

         The 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 environment

         After 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.

         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.

         In 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 insubordinate."

         Also in 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.

         On 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.

         On 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 ...

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