from the Iowa District Court for Linn County, Christopher L.
review from the Iowa Court of Appeals.
seeks further review of court of appeals decision that
affirmed summary judgment dismissing his disability
Timmer, Katie Ervin Carlson, and Nathan J. Borland (until
withdrawal) of Fiedler & Timmer, P.L.L.C., Johnston, for
Reasner of Lynch Dallas, P.C., Cedar Rapids, for appellee
City of Marion.
A. Johnson, Samantha M. Rollins, and Mitch G. Nass of Faegre
Baker Daniels LLP, Des Moines, for appellees St. Luke's
Work Well Solutions, St. Luke's Healthcare, and Iowa
Health System d/b/a UnityPoint Health.
appeal, we must decide whether the district court correctly
granted summary judgment dismissing the plaintiff's
disability discrimination claims. The plaintiff, who has
multiple sclerosis (MS), applied for a full-time job as a
firefighter. The defendant City declined to hire him after
the physician performing its preemployment physical
examination reported the applicant was not medically
qualified for the position. The physician made that
determination based on national firefighter guidelines that
disqualify persons with MS with active symptoms within three
years because MS symptoms could hinder job performance and
thereby endanger rescuers and persons needing assistance in a
fire emergency. The physician did not inform the City that MS
was the reason the applicant was found unfit for
firefighting, and the City did not inquire further into why
the applicant was disqualified. The plaintiff did not inform
the City he had MS or ask for any accommodation. Months
later, he filed a complaint with the Iowa Civil Rights
Commission (ICRC) alleging disability discrimination and then
failed to accept the City's offer to explore reasonable
accommodations through an interactive process.
plaintiff instead sued the City and the physician's
employer under the Iowa Civil Rights Act (ICRA), alleging
disability discrimination by the City and that the physician
aided and abetted the discrimination. The district court
granted summary judgment for all defendants. The district
court concluded that because the City was unaware of the
plaintiff's MS, plaintiff could not prove the City
declined to hire him because of that disability. And the
district court ruled the medical defendants were not liable
under the ICRA for providing an independent medical opinion
in an advisory role. The plaintiff appealed, and we
transferred the case to the court of appeals, which affirmed
the summary judgment over a partial dissent. We granted the
plaintiff's application for further review.
review, we hold that the plaintiff could not prove the City
discriminated against him because of his MS when the
City was unaware he had MS. The City is not required to be a
mind reader. On this record, without any requested
accommodation by the plaintiff, the City had no duty to
second-guess the physician's opinion that the plaintiff
was medically unqualified for the position. The physician, in
turn, is not liable for providing her independent medical
opinion or for aiding and abetting without proof the City
intentionally discriminated against the plaintiff. We
therefore affirm the summary judgment.
Background Facts and Proceedings.
Deeds had served as a volunteer firefighter for the City of
Coralville since August 2009. Deeds first experienced
symptoms of MS in December 2011. He was deer hunting when he
felt numbness in his right hand. The numbness spread to his
right foot and then to his entire right side. On December 14,
Deeds sought treatment at Mercy Urgent Care where he reported
the numbness made it "difficult to rise from bed in
[the] morning" and made him "feel weak and
unsteady on [his] right when walking." Deeds was
referred for an MRI and was examined by Dr. Richard Neiman, a
neurologist with Neurological Associates of Iowa City. On
December 22, Dr. Neiman gave a probable diagnosis of MS.
Deeds received treatment, and his symptoms cleared up by late
Deeds was diagnosed with MS, Dr. Neiman released him to
return to "full activity for the Coralville Fire
Department." The City of Coralville, however, retained
Dr. Patrick Hartley to evaluate Deeds to determine if he was
fit for duty. Dr. Hartley was "not comfortable clearing
[Deeds] to resume unrestricted duties as a firefighter."
The Coralville Fire Department declined to allow Deeds to
return to volunteer firefighting based on Dr. Hartley's
evaluation. Deeds did not challenge Coralville's decision
to disqualify him from its firefighting position.
March 2012, Deeds applied for a position as a professional
firefighter with the City of Marion. At the time, he was
certified as a Firefighter I and II and an EMT-B (basic).
Deeds was also taking classes and completing other
requirements to obtain a paramedic certification, which he
achieved in 2013. Deeds passed the written civil service
commission test required for the position. Deeds also passed
the physical agility test. In April, Deeds interviewed with
Fire Chief Terry Jackson (who has since retired) and
Assistant Fire Chief Deb Krebill (who is now the Marion fire
chief). The interview went well, and Deeds was placed on a
list of approved candidates.
July, Deeds applied for a firefighter position with the City
of Cedar Rapids. Deeds was interviewed by members of the
Cedar Rapids Fire Department and the City's civil service
commission in the fall of 2012 but did not receive a job
offer. He was placed on the certified list of eligible
candidates for the Cedar Rapids firefighter position for one
experienced numbness in his right foot again in December 2012
and January 2013. A clinic note by Dr. Pedro Gonzalez-Alegre
set forth Deeds's description of his symptoms:
One month ago, patient noted right foot numbness. In the
course of 2-3 days, it spread to involve his left foot as
well. The numbness then began to involve both legs and the
back of both thighs. Over the course of the last week to week
and a half, patient notes that his gait has worsened.
Specifically, he notices that he wobbles when he walks.
symptoms resolved by early February. Deeds had no MS symptoms
since then, and in April of that year, he sought a second
opinion from Dr. E. Tourage Shivapour, who diagnosed Deeds
with relapse and remitting MS. He was prescribed different
medication, which he has taken since spring 2013 without side
July, the Cedar Rapids Fire Department invited Deeds and
others on the City's certified list to interview for
newly opened firefighter positions. Deeds completed another
interview and received a conditional offer of employment on
July 25 "contingent upon satisfactory completion of a
then completed a health screening with Jennifer Motroni, an
occupational health nurse for the City of Cedar Rapids.
Motroni conducted some medical tests, and Deeds completed the
Municipal Fire and Police Retirement System of Iowa (MFPRSI)
medical history questionnaire. Deeds informed Motroni that he
had been diagnosed with MS, and Motroni reached out to Dr.
Shivapour with specific questions about how Deeds's MS
diagnosis could affect his performance as a firefighter. In
response, Dr. Shivapour completed a "Physician's
Report to Employer," in which he indicated that Deeds
could work with no restrictions.
Jeffrey Westpheling, a St. Luke's Work Well Solutions
(Work Well) physician, conducted a physical exam of Deeds on
September 4 to determine if Deeds was medically qualified to
work as a firefighter for Cedar Rapids. During the
examination, Deeds and Dr. Westpheling discussed Deeds's
MS diagnosis, the nature of his symptoms, and the dates when
Deeds experienced those symptoms. Dr. Westpheling asked him
to provide medical records from his neurologists; Deeds
attending medical school, Dr. Westpheling had worked as a Des
Moines firefighter for over five years and was thereby
familiar with the essential job functions of a firefighter.
Dr. Westpheling consulted the 2013 edition of the National
Fire Protection Association (NFPA) 1582, "Standard on
Comprehensive Occupational Medical Program for Fire
Departments." Dr. Westpheling explained why he consulted
In cases where there is [a] question on whether or not an
applicant can perform the essential duties of [a]
firefighter, the first standard to look at is the MFPRSI
guidelines as set forth in the protocol. If it's not
something that's expressed in the protocol, then one has
to go to the next best available guidance, and in this case
it would be the NFPA 1582 which is a consensus opinion of
expert panels including fire chiefs, fire service members,
physicians, [and] specialists in the areas of
recommendations. That in my mind is the next best available
source to look at, and so that's why I consulted the NFPA
1582 and have done so numerous times in the past and since.
It's continually updated with new findings and new
recommendations as well.
1582 labels "[m]ultiple sclerosis with activity or
evidence of progression within previous 3 years" as a
"Category A" medical condition that
"preclude[s] a person from performing as a member in a
training or emergency operational environment by presenting a
significant risk to the safety and health of the person or
others." Nat'l Fire Prot. Ass'n, NFPA 1582
Standard on Comprehensive Occupational Medical Program for
Fire Departments §§ 126.96.36.199, 6.17.1 (2013
ed.). Based on Deeds's history of MS symptoms, Dr.
Westpheling's personal experience working as a
firefighter, and the applicable NFPA Standards, Dr.
Westpheling concluded that Deeds was not medically qualified
to work as a firefighter for the City of Cedar Rapids.
received a facsimile from Work Well indicating Deeds was
disqualified; the facsimile included a notation that Dr.
Westpheling "cannot specify [a] reason [for
disqualification, ] as it is considered
personal." Motroni notified the Cedar Rapids Fire
Department that Deeds had been medically disqualified.
September 10, Dr. Westpheling spoke with Deeds by phone. He
explained the medical opinion he gave the City of Cedar
Rapids and also suggested to Deeds that he could seek a
second opinion regarding his ability to work as a
firefighter. Deeds did not do so.
the City of Cedar Rapids received Dr. Westpheling's
medical opinion, Assistant Fire Chief Curtis Hopper called
Deeds to revoke the offer of employment. Deeds did not
request any accommodation for his MS from the City of Cedar
that fall, another firefighter position opened with the City
of Marion. Deeds again interviewed with Chief Jackson and
Assistant Chief Krebill, who both concluded Deeds performed
very well in his interview. Neither observed signs of any
disability during the interview, and they did not ask Deeds
about any medical conditions or physical disabilities, nor
did Deeds disclose his MS.
November 13, Chief Jackson tentatively offered Deeds the
firefighter position, stating the offer would "be
formalized once [Deeds's] physical paperwork indicating
job readiness has been received by this office and all
back-grounding has been completed." Deeds scheduled an
appointment with Dr. Ann McKinstry at Work Well. Dr.
McKinstry is a licensed medical doctor who is board certified
in family medicine. She had on-the-job training for
occupational medicine and making reasonable accommodations
for disabilities. Dr. McKinstry had performed fewer than ten
preemployment firefighter medical examinations for the Cities
of Marion and Cedar Rapids. She examined Deeds on November 21
and learned he had been diagnosed with MS and had experienced
symptoms within the past year.
McKinstry consulted with Dr. Westpheling, who had performed
over fifty preemployment firefighter
examinations. Dr. Westpheling directed Dr. McKinstry to
the NFPA Standards binder in the clinic. Dr. McKinstry read
the NFPA 1582 chapter on "Medical Evaluations of
Candidates" and reviewed Dr. Shivapour's records
regarding Deeds's diagnosis, treatment, and course of
McKinstry completed the MFPRSI medical examination form,
indicating that Deeds was "NOT medically qualified to do
the essential functions of the job." While the form
requested the physician to comment on reasons why an examinee
is not qualified, Dr. McKinstry left that part blank. Chief
Jackson received the form via facsimile on November 21. No
one from Work Well offered additional information about why
Deeds did not qualify for the position. Chief Jackson
testified that he did not ask for such information because he
did not have a medical release from Deeds. There is no
evidence that Chief Jackson knew why Deeds was disqualified
or that Deeds had MS.
Jackson called Deeds and informed him that he "was not
fit for duty according to the physicians." During this
phone call, Chief Jackson did not ask Deeds why he was
disqualified, and Deeds did not tell Chief Jackson that he
had MS or that other physicians found him fit for
firefighting. Deeds did not ask for any accommodation or
second opinion. Nor did Deeds ask Dr. McKinstry to change her
opinion. Chief Jackson followed up on his phone call with a
letter to Deeds revoking the conditional employment offer.
January 2014, Deeds filed a complaint with the ICRC, alleging
that the City of Marion discriminated against him based on
his disability. It was only after Deeds filed his ICRC
complaint that the City of Marion learned that Deeds had MS.
The ICRC issued Deeds an administrative release.
next month, Deeds filed another complaint with the ICRC
alleging that the City of Cedar Rapids discriminated against
him on the basis of his disability. The ICRC issued Deeds an
administrative release with regard to these charges as well.
attorney for the City of Marion wrote to one of Deeds's
attorneys, seeking Deeds's medical records and offering
to pay for an individualized assessment of Deeds to be done
if Work Well had not previously conducted such an assessment.
The City also offered to engage in an interactive process,
informing Deeds's attorney that
[i]f the Work Well Clinic file establishes Mr. Deeds
underwent an individualized physical assessment and can
perform the essential job functions without reasonable
accommodation, then we agree that Mr. Deeds should be hired
and we acknowledge the necessity of resolving any back pay
due and owing.
If the Work Well Clinic file establishes that Mr. Deeds
underwent an individualized physical assessment and may be
able to perform the essential job functions of firefighter
with some accommodation, then we must determine the
reasonableness of any accommodations requested before we can
take any further steps in this process.
City's attorney also noted that Deeds "is the only
person who has access to the information necessary to
determine whether he can perform the essential job functions
of a firefighter." Deeds's attorney responded,
Once I receive confirmation from the Iowa Civil Rights
Commission that the City of Marion has substantively
responded to Mr. Deed's Complaint, I will be happy to
provide you with a copy of his medical records from St.
Luke's Work Well Clinic.
City submitted its substantive response to the complaint, but
Deeds's attorney nevertheless failed to provide the
promised medical records to the City. Moreover, Deeds did not
agree to engage in the interactive process to explore
reasonable accommodations, as offered by the City.
instead filed separate civil lawsuits against the City of
Marion and the City of Cedar Rapids on January 30, 2015.
Deeds alleged that Marion and Cedar Rapids discriminated
against him based on his disability in violation of Iowa Code
section 216.6(1)(a) (2014). In both lawsuits, Deeds
alleged that Well Work, St. Luke's Healthcare, and Iowa
Health System (collectively, the UnityPoint defendants) aided
and abetted the discrimination.
Deeds's suit against the City of Marion, the City filed
an answer, and the UnityPoint defendants filed a motion to
dismiss. The motion to dismiss was denied, and the UnityPoint
defendants filed their answer. The City and the UnityPoint
defendants moved for summary judgment. Deeds resisted the
motions. The district court granted both motions for summary
judgment. The district court concluded that Deeds failed to
show a genuine issue of material fact exists as to whether
the City took adverse action because of Deeds's
disability. The district court concluded Sahai v.
Davies, 557 N.W.2d 898 (Iowa 1997) (en banc), controlled
Deeds's claim against the UnityPoint defendants for
aiding and abetting. The court found "[t]he evidence in
the record overwhelming[ly] demonstrates that Dr. McKinstry
played an advisory role to the City of Marion and rendered an
independent medical judgment on Mr. Deeds' physical
lawsuit against the City of Cedar Rapids took a similar
course. The City filed an answer, and the UnityPoint
defendants filed a motion to dismiss that was denied. The
UnityPoint defendants then filed their answer and the City
and the UnityPoint defendants moved for summary judgment.
Deeds resisted the motions. The district court granted both
motions for summary judgment on the same grounds as the City
of Marion decision.
appealed the judgments in both cases, and we transferred them
to the court of appeals. The court of appeals affirmed the
summary judgment in both cases. The court of appeals
determined that Deeds "failed to show the City rescinded
its job offer based on his MS diagnosis." The court of
appeals also concluded that "[b]ecause Deeds has failed
to show the City engaged in a discriminatory employment
practice, his claim that UnityPoint aided or abetted in the
discriminatory employment practice necessarily fails."
Deeds applied for further review, which we granted.
Standard of Review.
review summary judgment rulings for correction of errors at
law. Goodpaster v. Schwan's Home Serv., Inc.,
849 N.W.2d 1, 6 (Iowa 2014). "Summary judgment is proper
when the movant establishes there is no genuine issue of
material fact and it is entitled to judgment as a matter of
law." Id. We view the record in the light most
favorable to the nonmoving party. Id.
ICRA prohibits an employer from discriminating against an
applicant for employment based on disability. See
Iowa Code § 216.6(1). In Goodpaster, we held
that MS can be a disability under the ICRA "if the
plaintiff produces evidence that the condition substantially
impaired one or more major life activities during episodes or
flare-ups, even if it did not impair life activities at all
when in remission." 849 N.W.2d at 13. In that case, the
employer was aware of the employee's MS. Id. at
5. Here, the fighting issue is whether the City can be liable
for discriminating against an applicant with MS when the City
was unaware he had MS. The ICRA provides, It shall be an
unfair or discriminatory practice for any:
a. Person to refuse to hire . . . or to otherwise
discriminate in employment against any applicant for
employment or any employee because of the . . .
disability of such applicant or employee, unless based upon
the nature of the occupation. If a person with a disability
is qualified to perform a particular occupation, by reason of
training or experience, the nature of that occupation shall
not be the ...