IN THE SUPREME COURT OF IOWA
ROBERT ANNEAR
Appellant,
VS.
STATE OF IOWA,
Appellee.
No. 61/89-230
Filed April 18,1990
Appeal from the Iowa
District Court for Polk County, George W. Bergeson, Judge.
Plaintiff appeals from adverse
judgment in civil rights action alleging discrimination in employment
as a result of disability. AFFIRMED
Thomas Mann, Jr. of Mann
& Mann, Des Moines, for appellant.
Thomas J. Miller, Attorney
General, and Scott M. Galenbeck, Assistant Attorney General, for
appellee.
Considered by McGiverin, C.J., and Harris, Larson, Carter, and Neuman, JJ.
CARTER, J.
Plaintiff, Robert Annear,
appeals from an adverse judgment in a civil rights action tried
to a jury.1 Plaintiff alleged that he was the
victim of dicrimination based on physical disability. His claims
related to both termination from employment with the state and
the subsequent failure to rehire him. At the conclusion of the
trial, the jury found by special verdict that plaintiff had failed
to establish the alleged discrimination by a proponderance of
the evidence. The district court entered judgment dismissing plaintiff's
claim, and this appeal followed. After considering the arguments
of the parties, we affirm the judgment of the district court.
Plaintiff worked as maintenance
worker at Camp Dodge, a facility operated by the Iowa Department
of Public Defense, from 1972 until June 29,1981. For several years
prior to the latter date, he was assigned to "light duty"
as a result of a back injury. On February 21, 1981, plaintiff
applied for long- term disability benefits under his state insurance
program and social security disability benefits. He was granted
long- term disability benefits but did not receive social security
disability benefits. The payment of the long-term disability benefits
commence on June 30,1981, the day following his termination as
an employee of the state.2
In August of 1981, plaintiff
had back surgery and thereafter his physical condition markedly
improved. On November 19, 1981, he returned to Camp Dodge and
requested that he be returned to his former position of Maintenance
Worker 11. He presented an unsigned release card from his treating
physician indicating that he was able to return to work. The personnel
officer at Camp Dodge requested that plaintiff provide additional
assurance that he was physically able to return to his former
job. This request was followed up by a letter to plaintiff from
the personnel officer specifically relating to these requirements.
On December 10, 1981, plaintiff's
physician provided the personnel officer with a release stating
that plaintiff could return to work on January 4, 1982, and was
physically able to perform the tasks outlined in the letter. On
January 4, plaintiff returned to Camp Dodge. At that time, the
personnel officer again advised him that the reinstatement rights
of persons previously terminated for long-term disability were
only to be listed on the merit register for that person's former
position without retaking merit examinations. Plaintiff was told
that, other than this limited concession, he had to compete with
other applicants for the position on an equal opportunity basis.3 Plaintiff was also told that any vacancies in Maintenance
Worker II positions would not be filled at that time for budgetary
reasons. Evidence was presented at the trial that no Maintenance
Worker 11 positions were filled from that time until early in
1985.
In March of 1982, plaintiff
applied for a job as as custodial worker (a lower job classification).
Plaintiff and other applicants were considered under the agency's
standard merit evaluation. An applicant with a higher evaluation
rating than plaintiff was hired.
On August 5, 1982, plaintiff
filed a complaint with the Iowa Civil Rights Commission alleging
that the state was guilty of discrimination in employment based
on disability. On August 4,1983, that agency issued a right-to-sue
letter regarding plaintiff's claim. The present action was commenced
the following day.
In addition to his claims
under chapter 601A, plaintiff's action, as originally filed, included
counts alleging that, in failing to reinstate him to his former
position, the state (a) violated the collective bargaining agreement
in force with his bargaining unit, (b) violated the provision
of Iowa Code section 79.2 (1981) pertaining to absence from work
for health reasons, and (c) breached an implied covenant of fair
dealing. These claims were dismissed by the district court on
October 20, 1986, in a ruling on pretrial motions. Later, in another
ruling, the district court dismissed the civil rights count on
statute-of-limitations grounds, and a final judgment was entered.
In an appeal from that judgment, this court in Annear v. State,
419 N.W.2d 377 (Iowa 1988) (hereinafter cited as Annear I)
reversed the dismissal of the civil rights count but did not reinstate
any of the other counts which had been dismissed.
After remand to the district court following the decision in Annear I, the district court held a bifurcated trial. In the trial of the jurisdictional issues involving the statute of limitations, the jury found in plaintiff's favor. It then considered his claim on the merits and denied relief. Other significant facts which bear upon our decision of this appeal are stated and considered in our discussion of the legal issues which are presented.
I. Issues Which Have Previously Been Eliminated.
At the outset, we reject any attempt by plaintiff in the present appeal to assert an interpretation of his contract of hire different from that adopted in the district court's October 20, 1986, order. The order is controlling on law-of -the-case grounds. See Wolfe v. Graether, 389 N.W.2d 643. 651 (Iowa 1986) (decision on a prior appeal is controlling for purposes of further proceedings in both the district court and subsequent appeals); Omaha Bank for Coops, v. Siouxland Cattle Coop., 305 N.W.2d 458, 463 (Iowa 1981) (same). This determination is significant because it bears on other legal issues asserted by plaintiff in the present appeal.
II. Issues Sought to be Added by Amendment.
After the case was remanded
to the district court following the prior appeal, plaintiff requested
permission to amend his petition to add a count alleging that
the circumstances of his discharge were contrary to public policy
and, under this court's decision in Springer v. Weeks &
Leo Co., 429 N.W.2d 558 (Iowa 1988), should be actionable
in tort. The district court denied this request without elaboration
as to the grounds for that ruling. Plaintiff now asserts that
this was an abuse of discretion.
We find no abuse of discretion or legal error in the court's ruling on the request to amend. That request came more than five years after the original petition was filed. Moreover, we believe it was implicit in our decision in Annear I that the case was remanded solely for purposes of trying the civil rights claim.4
III. The Statute-of-Limitations Issue.
The state, by cross-appeal,
contends that, notwithstanding the jury's special verdict on this
question, plaintiff's claims are based on acts which occurred
more than 180 days prior to the filing of his complaint with the
Iowa Civil Rights Commission. This circumstance, the State asserts,
prevents both the commission and the court from considering
the alleged civil rights violation as a result of a jurisdictional
statute of limitations provided in Iowa Code section 601A.15 (12)
(1981). Plaintiff counters by asserting that the statute-of -
limitations claim should have been decided in his favor as a matter
of law.
In the bifurcated trial
proceeding, the district court, by special interrogatory, submitted
the question of whether plaintiff perceived that he was being
discriminated against prior to February 5, 1982 (a date 180 days
prior to the filing of plaintiff's complaint with the civil rights
commission). The jury answered this special interrogatory in the
negative. In the trial on the merits which followed, the court
submitted claims involving both discriminaiton in discharge (based
on acts antedating the filing of the civil rights complaint by
more than 180 days) and failure to rehire (based on acts occurring
within the 180-day period).
On the appeal in Annear
I, we reversed the district court's summary judgment for the
State on the statute-of-limitations issue based on the concept
of a continuing violation. That ruling was based on the record
made on the summary judgment motion. We need not determine whether,
based on the evidence which was actually adduced at the trial,
the continuing violation doctrine will save plaintiff's claim
of discrimination in discharge from the statute of limitations.
Resolution of plaintiff's discriminatory discharge claim is more
readily based on the ground that, under the undisputed evidence,
there was no discrimination practiced with respect to his separation
from employment.
It appears without dispute
that plaintiff's separation from employment occurred because of
a well-documented physical disability. This disability prevented
plaintiff from pursuing the requirements of his job, even after
the State had taken measures to accommodate his physical limitations.
No claim should have been submitted to the jury involving a discriminatory
discharge. Consequently, we need not consider plaintiff's assignments
of error pertaining to the discriminatory discharge portion of
his claim.
With respect to the portion
of plaintiff's claim alleging discrimination in rehiring, plaintiff
is correct in contending that, as a matter of law, the bar of
section 601A.15 (12) does not apply. The state relies on the case
of Burnham v. Amoco Container Co., 755 F.2d 893, 894 (111
th Cir. 1985), where the court stated:
[A] failure to rehire subsequent to an allegedly discriminatory firing, absent a new and discrete act of discrimination in the refusal to rehire itself, cannot resurrect the old discriminatory act. Otherwise, a potential plaintiff could always circumvent the limitations by reapplying for employment.
Id. (citations omitted).
Although we do not disagree with the basic principle applied in
the Burnham case, we believe that principle is inapplicable
in the present case. Because we have determined that there was
no act of discrimination with respect to plaintiff's discharge,
any discrimination in rehiring would have been the first act to
trigger the 180-day limitation period. The material acts by the
State with respect to the rehiring issue all occurred within 180
days of the filing of the complaint with the commission.
IV. Evidentiary and Substantive
Issues with Respect to Reasonable Accommodation.
Plaintiff asserts both evidentiary
and substantive challenges to the trial court's treatment of the
issue of reasonable accommodation. His evidentiary challenges
relate to the trial court's refusal to admit testimony by an attorney
for the bargaining unit of plaintiff's union concerning statements
made to that attorney with respect to plaintiff's claim. These
statements, allegedly made by an employee in the State Comptroller's
Office, pertained to the duty of the state to reasonably accommodate
a disabled employee. The state contends that this testimony was
properly excluded because of its hearsay nature and also because
the proffered evidence pertained to plaintiff's breach-of -contract
claim which was no longer in the litigation.
On our review of the record, we conclude that the state is correct as to both of its contentions. The proffered evidence was facially hearsay. Plaintiff made no foundational showing that the declarant was speaking within the scope of that person's agency in order to establish a vicarious admission under Iowa Rule of Evidence 801 (d)(2) (D). Moreover, there are no viable issues in this civil rights action involving reasonable accommodation. The state has never contended that plaintiff was physically unable to perform the requirements of the job for which he was not hired. It based its failure to hire him on grounds of merit qualification. In keeping with this scenario, plaintiff's assertion of a discriminatory discharge was predicated on a theory that he was able to resume work without any accommodation of job requirements. These circumstances distinguish the present case from Frank v. American Freight Systems, Inc., where we applied a reasonable accommodation required with respect to a back disability. In Frank, the employer clearly did base its decision to discontinue employment on a belief that a back injury precluded the employee from performing the job requirements.
V. Objections to Instruction No. 13.
Plaintiff asserts that the
district court erred in giving Instruction No. 13, which advised
the jury as follows:
Mr. Annear, as an employee of the State of Iowa, who had either resigned or was separated from his employment for reasons other than good cause for separation, was eligible for reinstatement to the class of job formerly held by him, or a comparable class, or to a lower class until January 4, 1984.
There is no provision in the law which requires the State to automatically reinstate an employee who had applied for and been granted long-term disability benefits. The State of Iowa is responsible for affording plaintiff the same eligibility for reinstatement given to other employees who are granted long-term disability and later choose to apply for reemployment.
If you find that plaintiff was afforded the eligibility for reinstatement provided by the State, without regard for disability, you must find in favor of the defendant.
Plaintiff argues that this
instruction inproperly engages in factual determinations which
were the province of the jury. We disagree with this contention.
The language contained in Instruction No. 13 accurately states plaintiff's contractual right to reinstatement as established in the prior ruling of the court dismissing his breach-of -contract claim. That ruling stood as the law of the case.
VI. Instructions on the Burden of Proof.
Plaintiff's next assignment
of error contends that the district court erred in giving Instruction
No. 12, which required him to disprove defendant's evidence of
a nondiscriminatory reason for not rehiring plaintiff. The portion
of the instruction applicable to this argument reads as follows:
The burden of proof is on plaintiff to disprove this contention. In other words, for you to return a verdict in plaintiff's favor, you must find that plaintiff established, by a preponderance of the evidence, that plaintiff was equally or better qualified than the applicant hired for the position and that the reasons given by defendant as to why the plaintiff was not hired were false.
This theory of the case
appeared in a separate instruction and was also incorporated into
the marshaling instruction.
The procedure in discrimination
cases, including disability discrimination, is as follows: (1)
the complainant must first establish a prima facie case of discrimination;
(2) the employer may then show a legitimate, nondiscriminatory
reason for its conduct; and (3) the complainant may then attack
the reason as only a pretext for discrimination, or one unworthy
of belief. Frank, 398 N.W.2d at 800. Defendant offered
evidence that plaintiff was not as well qualified as the other
applicants for the position for which he was rejected. It was
established that plaintiff's right to reinstatement at this point
was only to enjoy the same opportunity as anyone else applying
for the job. For purposes of establishing that the reason given
for not hiring him was pretextuous, plaintiff bore the burden
of persuasion on whether he was at least as well qualified as
the person who was eventually hired for the position. See Woodbury
County v. Iowa Civil Rights Comm's,335 N.W.2d 161,165 (Iowa
1983).5
VII. Objection to Instructions
Defining Handicap o Handicapped Person.
Plaintiff asserts that the
trial court's instructions defining handicap or handicapped person
were erroneous and prejudiced him in establishing the theory on
which his disability discrimination claim was based. Although
the State has at all times asserted that it believed plaintiff
was recovered from his back condition and that its refusal to rehire
him was based on the relative merit of the competing applicants,
plaintiff brands this contention as pretextuous. He argues that
the real reason for not hiring him was a perceived physical disability.
He presents his claim as one in which the State's representatives
in the hiring process incorrectly believed that the disability
which caused his separation from employment in 1981 continued
to exist in March of 1982.
Based on this premise, plaintiff
contends the trial court should have defined handicap or handicapped
person in the instructions to include those persons who are regarded
as being handicapped althougfh not in fact deserving that characterization.
Plaintiff offered a proposed instruction incorporating that concept
which was refused. The trial court otherwise defined handicap
as follows:
The terms "disability" or "handicap," under Iowa law refer to a physical condition which constitutes a substantial handicap and which is unrelated to the person's ability to perform in a reasonably competent and satisfactory manner jobs or positions which are available to him or her.
Plaintiff bases his challenge
to the foregoing instruction on regulations promulgated by the
Iowa Civil Rights Commission to aid in administering Chapter 601
A. One of these regulations, 240 Iowa Admin. Code 6.1 (1), defines
a "substantially handicapped person" as
The term "substantially handicapped person" shall mean any person who has a physical or mental impairment which substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment.
Another subparagraph of this regulation provides:
The term "is regarded as having an impairment" means:
a. Has a physical or mental impairmant that does not substantially limit major life activities but that is perceived as constituting such a limitation;
b. Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or
c. Has none of the impairments defined to be physical or mental impairments," but is perceived as having such an impairment.
240 Iowa Admin. Code 6.1
(5) (emphasis added).6 Both of these provisions were discussed
and applied in Brown v. Hy- vee Food Stores, Inc., 407
N.W.2d 598, 600 (Iowa 1987). Plaintiff relies on the italicized
portion of the latter regulation in claiming entitlement to an instruction
on perceived disability.
Our task in applying this
regulation to the present situation is complicated by the fact
that we are considering a proposed alternative scenario to an
allegedly pretextuous reason for not hiring plaintiff. The issue
thus becomes whether, if the state did not hire plaintiff because
it believed he was physically unable to do the work and was wrong
in that assessment, this error of judgment would constitute an
unlawful discrimination in hiring under section 601 A.6 (1)(a).
We believe it does not. To literally apply the language of
subparagraph c of 240 Iowa Administrative Code 6.1 (5)
to this set of facts would extend the scope of an employment
discrimination claim beyond the breadth of the statute by which
such claims have been created. Agency action in promulgating
a rule may not exceed its statutory authority. Sommers v. Iowa
Civil Rights Comm'n, 337 N.W.2d 470, 475 (Iowa 1983).
In order for the definition contained in subparagraph of these regulations to be given effect under the act, it must be limited to situations involving a categorical organic disorder of the body. Cf. Sommers, 337 N.W.2d at 476. The definition may not be extended to differences of opinion over the degree of recovery from a physical injury, notwithstanding a lack of reasonable basis for the employer's belief. The district court did not err in rejecting plaintiff's proposed instruction on perceived disability.7
VIII. Other Issues.
Plaintiff also raises issues in which he challenges other instructions given by the trial court and challenges the trial court's refusal to rule that he had established his case as a matter of law. We have considered all issues presented and find no ground for reversal. The judgment of the district court is affirmed.
AFFIRMED
1 Plaintiff's claim was predicated
on Iowa Code § 601 A.6 (1)(a)
(1981).
2 Plaintiff contends that under a state personnel policy his termination should not have been finalized until a later date. The state disputes this claim. We need not deal with this issue because it essentially involves a breach of contract rather than a civil rights violation.
3 This interpretation of personnel policies was ultimately adopted by the district court in rulings entered in this litigation.
4 The state also urges persuasively that the breach of public policy claim sought to be added by amendment sounds in tort and was never presented to the state appeals Board as required by Iowa Code § 25A.5 (1981).
5 Plaintiff also argues that the marshaling instruction required him to establish that he was better qualified than the other applicants for the job. The instuction stated that plaintiff must show that he was "as well qualified or better qualified" than the other applicants for the job. As such, it was not a misstatement of the law.
6 These provisions of 240 Iowa Administrative Code 6.1 have been renumbered as 161 Iowa Administrative Code 8.26.
7 Plaintiff suggests that the trial court's failure to include the concept of perceived disability in the instructions to the jury was the equivalent of directing a verdict in favor of the State. If he is correct in this assessment, this does not demonstate that he was legally prejudiced. It only indicates that in sending the issue to the jury, the trial court was acting more favorably toward plaintiff's position than was warranted.