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Vetter v. State

Court of Appeals of Iowa

May 17, 2017

JOHN VETTER, Plaintiff-Appellee/Cross-Appellant,

         Appeal from the Iowa District Court for Polk County, Robert B. Hanson, Judge.

         Both parties appeal following a verdict in favor of the plaintiff on his employment-discrimination claims. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

          Thomas J. Miller, Attorney General, Jeffrey S. Thompson, Solicitor General, David S. Steward and Julia S. Kim, Assistant Attorneys General, for appellants/cross-appellees.

          Brooke Timmer and Whitney Judkins of Fiedler & Timmer, P.L.L.C., Johnston, for appellee/cross appeallant.

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

          DOYLE, Judge.

         The State of Iowa appeals the judgment entered in favor of John Vetter on his claims of employment discrimination based on his disability. The State challenges the sufficiency of the evidence supporting the jury's verdict, several jury instructions, and the amount of damages awarded. Vetter cross-appeals, arguing the trial court erred in refusing to award his litigation expenses.

         I. Background Facts and Proceedings.

         John Vetter began working for the Iowa Department of Natural Resources (DNR) in 1976 as a natural resources technician at the state forest nursery in Ames. He injured his back at work in July 2011, which ultimately led to spinal surgery in November 2011. When Vetter returned to work in January 2012, he was initially assigned light-duty work before gradually resuming his normal job duties. Although Vetter occasionally sought help from his coworkers in lifting heavy objects, he was able to perform his essential job duties.

         In September of 2012, Vetter underwent a functional capacity evaluation to determine his physical limitations following his work injury. The evaluation revealed limitations to the amount of weight Vetter could lift and carry and the amount of time he could sit, stand, walk, climb, or bend each day. The evaluation resulted in the issuance of permanent restrictions on Vetter's ability to engage in these activities. Vetter was also restricted from all squatting activity.

         In January 2013, the State's workers' compensation administrator sent the DNR the list of permanent restrictions identified during the functional capacity evaluation and inquired as to whether the DNR could accommodate them. HR was called. Legal was consulted. Consultants were hired. In order to determine whether accommodations were possible, the DNR obtained two workplace assessments that each recommended accommodations for Vetter based largely on information provided by Vetter's supervisor. The suggested accommodations included job rotation every two-and-one-half hours and purchasing a customized tractor. However, the evaluators never talked to Vetter about his job duties or any accommodations he needed.

         The DNR also failed to discuss the suggested accommodations with Vetter or to otherwise ask him what, if any, accommodations he felt he needed to perform his job. Instead, the DNR determined that implementing the suggested accommodations "would have a detrimental impact on the business needs of the DNR and that such accommodations would result in an undue burden on the DNR and the State of Iowa" and terminated Vetter's employment. Because the evaluators based their suggested accommodations on erroneous information about Vetter's job duties, Vetter does not believe they were necessary.

         Vetter filed a petition alleging the State violated the provisions of the Iowa Civil Rights Act (ICRA) by discriminating against him with respect to the terms and conditions of his employment based on his disability or a perceived disability, and by failing to reasonably accommodate his disability. At the close of trial, the following verdict form was provided to the jury:

Question 1: Did Plaintiff prove his claim of Disability Discrimination against Defendants? (Please mark an "X" in the appropriate spaces.)
YES ___ NO ___
(Proceed to Question 2.)
Question 2: Did Plaintiff John Vetter prove his claim that Defendants failed to provide him with a reasonable accommodation? (Please mark an "X" in the appropriate spaces.)
YES ___ NO ___
(Proceed to Question 3.)
Question 3: Did Plaintiff John Vetter prove his claim of Perceived Disability Discrimination against Defendants? (Please mark an "X" in the appropriate spaces.)
YES ___ NO ___
(Proceed to Question 4.)
(If your answer to Questions 1, 2, or 3 is "yes, " proceed to Question 4. If your answers to each of Questions 1, 2, and 3 is "no, " then do not answer any more questions.)

         The jury answered "yes" to questions 1 and 2, but it left question 3 unanswered.[1] The jury then proceeded to question 4 to determine the amount of Vetter's damages, which it determined to be $164, 732.13 in back pay, $250, 000.00 for past emotional distress, and $185, 000.00 for future emotional distress, for a total damage award of $599, 732.13. The trial court awarded Vetter an additional $88, 690.19 in front pay damages, for a total award of $688, 422.32.

         The trial court denied the State's motion for judgment notwithstanding the verdict, finding Vetter proved he was disabled, that his disability was a motivating factor in the DNR's decision to terminate his employment, and that the DNR denied Vetter's request for accommodation. The court denied the State's motion for new trial after finding substantial evidence supported the jury's award of damages for emotional distress. The trial court awarded Vetter $245, 281.50 in attorney fees and $837.14 in expenses. The State appealed, and Vetter cross-appealed.

         II. Sufficiency of the Evidence.

         The State first contends the trial court erred in denying its motions for directed verdict and judgment notwithstanding the verdict because the evidence was insufficient to show it discriminated against Vetter based on his disability.

         A. Scope of review.

         We review sufficiency-of-the-evidence claims for the correction of errors at law. See Faber v. Herman, 731 N.W.2d 1, 6 (2007) (setting forth the standard of review for rulings on motions for judgment notwithstanding the verdict); Figley v. W.S. Indus., 801 N.W.2d 602, 609 (Iowa Ct. App. 2011) (addressing the standard of review for rulings on motions for directed verdict). The question we must ask is whether substantial evidence supports each element of the plaintiff's claims. See Gibson v. ITT Hartford Ins. Co., 621 N.W.2d 388, 391 (Iowa 2001) (jnov); Figley, 801 N.W.2d at 609 (directed verdict). Evidence is substantial if a reasonable mind would accept it as adequate to reach a conclusion. See Figley, 801 N.W.2d at 609-10. In making this determination, we view the evidence in the light most favorable to the nonmoving party. See Gibson, 621 N.W.2d at 391; Figley, 801 N.W.2d at 610.

         B. Elements of a disability-discrimination claim.

         The ICRA protects employees from being discharged or otherwise discriminated against in their employment based on their disability. See Iowa Code § 216.1 (2013). Like its federal counterpart, [2] the ICRA protects against two types of discrimination: discrimination involving disparate treatment and discrimination based on a disparate impact. See Pippen v. State, 854 N.W.2d 1, 9 (Iowa 2014).

"Disparate treatment" such as is alleged in the present case is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex, . . . national origin[, or disability]. Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment. . . .
Claims of disparate treatment may be distinguished from claims that stress "disparate impact." The latter involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity. Proof of discriminatory motive . . . is not required under a disparate-impact theory.

Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977).

         Vetter claims the DNR engaged in disparate treatment discrimination based on his disability. In order to succeed on his claims, Vetter was required to show he is a person with a disability, he was qualified to perform his job either with or without an accommodation for his disability, and he suffered an adverse employment decision because of his disability. See Casey's Gen. Stores, Inc. v. Blackford, 661 N.W.2d 515, 519 (Iowa 2003).

         1. Whether Vetter has a disability.

         The court instructed the jury that, in order to prove his disability-discrimination claims, Vetter was required to show by a preponderance of the evidence that he had a back impairment and that his back impairment was a "disability" because "it substantially limited him in one or more major life activities." See Iowa Admin. Code r. 161-8.26(1) (defining "disability"); see also Goodpaster v. Schwan's Home Serv., Inc., 849 N.W.2d 1, 6 n.1 (Iowa 2014) (interpreting rule 161-8.26 to "provide the relevant definition of those persons covered by the ICRA"). The jury instructions define "impairment" to mean "any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin; and endocrine." With regard to whether a disability impairs a major life activity, the court instructed the jury:

"Major life activities" are functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. A person is "substantially limited" in a "major life activity" if the person is unable to perform a major life activitiy that the average person in the general population can perform, or is significantly restricted as to the condition, manner, or duration under which the average person in the general population can perform the same major life activity. The phrase "substantially limits" should be interpreted broadly. The determination of whether a condition substantially limits a major life activity must be made without considering the helpful effects of mitigating measures such as medications, surgery, physical therapy, or other treatment or devices that improve the condition.
To determine whether [Vetter] is substantially limited in a major life activity, you should consider (1) the nature and severity of the impairment; (2) the duration or expected duration of the impairment; (3) the permanent or long term impact, or the expected permanent or long-term impact of or resulting from the impairment; and (4) whether the individual is impaired during episodes or flare-ups, even if life activities are not impaired at all when in remission.

See Iowa Admin. Code r. 161-8.26(3); Bearshield, 570 N.W.2d at 919 (citing 29 C.F.R. § 1630.2(j) (1997)[3]).

         The undisputed evidence shows Vetter suffered a back injury that required medical treatment, including surgery. The evidence also supports a finding that the injury affected his musculoskeletal system. Vetter's back injury impaired his ability to lift, carry, sit, stand, walk, climb, bend, and squat, as is reflected in the work restrictions issued by the doctor who examined Vetter during his functional capacity evaluation. Vetter also testified that compared to the average person, he was limited in his ability to lift, sit, walk, bend, or climb:

Q. Was your back condition a physical impairment?
A. Yes, it was.
Q. In 2012 and 2013 were you able to lift as much as the average person with your back condition?
A. No, I was not.
Q. Did your back condition limit your ability to lift?
A. It did, yes.
Q. Does your back condition still limit your ability to lift as much as the average person?
A. Yes, it does.
Q. In 2012 and 2013 did your back condition limit your ability to sit, stand, walk, bend, kneel, or climb as much as the average person?
A. Yes, it did.

         Lewis Vierling, a vocational rehabilitation counselor and consultant who has "been heavily involved in doing research with the Americans with Disabilities Act" since 1996 or 1997, testified as an expert witness for Vetter. In assessing whether Vetter has a disability, Vierling "[l]ooked at the limitations that were assigned to him, his skills and abilities, the type of skills that he had acquired through his work, " reviewed his job description and the job descriptions developed by the Department of Labor to determine a vocational profile. Vierling testified that the work restrictions placed on Vetter's back injury show he is restricted in his ability to participate in the major life activities of sitting, standing, walking, and lifting compared to the average member of the workforce.

Q. What is it that you learned John could not do with regard to his disability?
A. The main [thing he] could not do, the main restriction, was lifting, weight-wise from-he was in the 20- to 25-pound range and also walking, standing, sitting, there [were] some limitations there, although they did not appear to be very restrictive to me. Those were the main ones.
And the lifting is kind of a main one because jobs usually start out with indicating that there's an amount that you should be able to lift in that job and then the frequency of the lifting. And I believe in his job it was up to 50 pounds on an occasional basis, which is about a third of a person's workday.
So looking at that and then looking at his restrictions and then talking to him about the work and about how he had been doing the work after returning for about a year, actually more than a year, it was very interesting.
Q. Was it your understanding that John was limited in lifting between 20 or 25 up to 50 pounds?
A. 20 to 25 pounds.
Q. Right, depending on whether it was waist to floor or-
A. Yes.
Q. -waist to crown, I think?
A. Yes.
Q. 20 or 25-
A. To waist and then overhead as well, yeah.
Q. Did you learn what kind of things John was able to do if he was ever required to lift in that range, that he had options available to him in the workplace?
A. That he could do?
Q. Right. Like, in order to not have to lift between 25 and 50?
A. Yes. He had some equipment that he had used in the past.

         Ultimately, Vierling determined that Vetter has a disability under Iowa law.

         Vetter also presented testimony from Vienna Hoang, an assistant technology counselor specialist at Vocational Rehabilitation Services for the State of Iowa who was asked by the DNR to write a report recommending accommodations for Vetter's disability. Hoang testified:

Q. And it was your understanding that the State believed John had a disability when they asked you to write the report; right?
A. Correct, yes.
Q. That was the whole reason you were brought in; correct?
A. Yes.
. . . .
Q. . . . You had no reason to disagree that John Vetter had a disability since you saw his ...

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