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Deeds v. City of Marion

Supreme Court of Iowa

June 22, 2018

NOLAN DEEDS, Appellant,
v.
CITY OF MARION, IOWA; ST. LUKE'S WORK WELL SOLUTIONS; ST. LUKE'S HEALTHCARE; and IOWA HEALTH SYSTEM d/b/a UNITYPOINT HEALTH, Appellees.

          Appeal from the Iowa District Court for Linn County, Christopher L. Bruns, Judge.

         On review from the Iowa Court of Appeals.

         Plaintiff seeks further review of court of appeals decision that affirmed summary judgment dismissing his disability discrimination claims.

          Brooke Timmer, Katie Ervin Carlson, and Nathan J. Borland (until withdrawal) of Fiedler & Timmer, P.L.L.C., Johnston, for appellant.

          Amy L. Reasner of Lynch Dallas, P.C., Cedar Rapids, for appellee City of Marion.

          Karin 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.

          WATERMAN, Justice.

         In this 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.

         The 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.

         On our 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.

         I. Background Facts and Proceedings.

         Nolan 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 February 2012.

         After 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.

         In 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.

         In 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 year.

         Deeds 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.

         Deeds's 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 effects.

         In 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 medical screening."

         Deeds 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.[1] 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.

         Dr. 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 complied.

         Before 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 that standard:

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.

         NFPA 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 §§ 3.3.13.1, 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.

         Motroni 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."[2] Motroni notified the Cedar Rapids Fire Department that Deeds had been medically disqualified.

         On 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.

         After 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 Rapids.

         Later 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.

         On 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.

         Dr. McKinstry consulted with Dr. Westpheling, who had performed over fifty preemployment firefighter examinations.[3] 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 disease.

         Dr. 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.

         Chief 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.

         In 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.

         The 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.

         An 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.

         The 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.

         The 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.

         Deeds 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.

         In 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 qualification."

         Deeds's 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.

         Deeds 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.

         II. Standard of Review.

         We 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.

         III. Analysis.

         The 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 ...

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