IN THE IOWA DISTRICT COURT FOR LEE COUNTY

AT KEOKUK

HENKEL CORPORATION,

Petitioner,

VS.

IOWA CIVIL RIGHTS COMMISSION

and STANLEY DECK,

Respondents.

No. CL 1201 (S)0589

RULING ON PETITION FOR JUDICIAL REVIEW

Petitioner, Henkel Corporation, seeks judicial review of a final decision of the Iowa Civil Rights Commission awarding back pay and $5,000.00 in damages for emotional distress to Stanley Deck, a former employee of Petitioner, based upon a finding of disability discrimination under Iowa Code Section 601A.6.

Judicial review of final Civil Rights Commission action is governed by Iowa Code Section 17A. 19 (8). See Iowa Code Section 601A.17(l); Chauffeurs, Teamsters and Helpers, Local Union No. 238 v. Iowa Civil Rights Commission, 394 N.W.2d 375, 379 (Iowa 1986).

In exercising the power of judicial review conferred by Iowa Code Section 17A.1 9 (8), the court is bound by an agency's fact findings if they are supported by substantial evidence in the record made before the agency when that record is viewed as a whole. Hussein v. Tama Meat Packing Corporation, 394 N.W.2d 340, 341 (Iowa 1986); Roberts v Iowa Department of Job Service, 356 N.W.2d 218, 221 (Iowa 1984); Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407, 409 (Iowa 1984); Hawk v. Jim Hawk Chevrolet, 282 N.W.2d 84, 85 (Iowa 1979); Myers v. Iowa Department of Job Service, 373 N.W.2d 507, 509 (Iowa App. 1985).

The "substantial evidence" rule of Iowa Code Section 17A.19 (8)(f) requires the agency action be supported by substantial evidence in the agency record when that record is viewed as a whole. Iowa State Fairgrounds Security v. Iowa Civil Rights Commission, 322 N.W.2d 293, 295 (Iowa 1982); Peoples Memorial Hospital v. Iowa Civil Rights Commission, 334 N.W.2d 598, 602 (Iowa 1983); Iowa Civil Rights Commission v. Woodbury County Community Action Agency, 304 N.W.2d 443, 46 (Iowa App. 1981).

The Iowa Supreme Court, in discussing the "substantial evidence" rule, has pointed out that the principles governing review of agency action must be distinguished from those applicable to appellate review of a jury verdict or findings of fact of a trial judge in a law action tried to court where the reviewing court need only consider supporting evidence. See Cerro Gordo County Care Facility v. Iowa Civil Rights Commission, 401 N.W.2d 192, 195 (Iowa 1987); City of Davenport v. Public Employment Relations Board, 264 N.W.2d 307, 312 (Iowa 1978); Iowa Health Systems Agency, Inc., v. Wade, 327 N.W.2d 732, 733 (Iowa 1982). Review of an agency determination is distinguished from a review of a verdict in that the reviewing court considers all of the evidence including that which preponderates against the agency decision as well as that which supports it. City of Davenport, 264 N.W.2d at 312; Iowa Health Systems Agency, Inc., 327 N.W.2d 733; Cerro Gordo County Care Facility, 401 N.W.2d at 195.

Reviewing courts are required to construe agency fact findings broadly and liberally to support rather tha defeat the agency decision. Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296, 298 (Iowa 1974); Ward v. Iowa Department of Transportation, 304 N.W.2d 236, 237 (Iowa 1981).

Under the "substantial evidence" rule, evidence is substantial if a reasonable person would accept it as adequate or find it sufficient to reach a given conclusion or decision, even if a reviewing court might draw a contrary inference. Chauffeurs, Teamsters and Helpers, Local Union No. 238 v. Iowa Civil Rights Commission, 394 N.W.2d 375, 379 (Iowa 1986); Mercy Health Center v. State Health Facilities Council, 360 N.W.2d 808, 811-12 (Iowa 1982). It need not be a preponderance, but a mere scintilla will not suffice. Elliot v. Iowa Department of Transportation, 377 N.W.2d 250, 256 (Iowa App. 1985); Herring v. Iowa Law Enforcement Academy, 341 N.W.2d 65, 66-69 (Iowa App. 1983).

While it is true that courts are bound by agency fact findings which are supported by substantial evidence and have no original authority to make findings of fact and declare the parties' rights on judicial review of agency action, courts are not bound by the agency's legal conclusions and can correct misapplications of the law. Roberts v. Iowa Department of Job Service, 356 N.W.2d 218, 221 (Iowa 1984); Quenot v. Iowa Department of Job Service, 339 N.W.2d 624, 626 (Iowa App. 1983). While a reviewing court gives respect to an agency's findings and construes agency fact findings broadly and liberally to support rather than defeat the agency decision, the findings must be set aside when the record clearly shows that the agency's decision was not justified. See Cerro Gordo County Care Facility v. Iowa Civil Rights Commission, 401 N.W.2d 195,196 (Iowa 1987).

Governed by the above-stated principles, the Court now turns to the case at hand. The following facts appear undisputed in the record and are set forth along with a brief summary of proceedings below as background information.

Stanley Deck was an employee of Petitioner, Henkel Corporation, in Keokuk, Iowa, from March 11, 1980, until his discharge on January 21, 1985. Prior to working for Henkel, Mr. Deck had held thirteen or more unskilled laborer jobs. When he started with Henkel on March 11, 1980, Mr. Deck first worked in the area of sanitation. He was subsequently transferred to general plant work and then to the vitamin department.

On April 13, 1983, Mr. Deck suffered a mental breakdown which led to repeated hospitalizations and treatment during the remainder of 1983 and into 1984. Mr. Deck remained absent from work after his mental breakdown and did not return to work until sometime in late August or early September, 1984.

Mr. Deck was initially hospitalized at Keokuk Area Hospital from April 13, 1983, to April 25, 1983, and was released with medication (Transcript p. 154). He was also hospitalized at University Hospitals at Iowa City, Iowa, in April, 1983, but left that hospital against medical advice. Mr. Deck was again hospitalized during the end of July, 1983, on two occasions. He was subsequently hospitalized at St. Marys Hospital, Quincy, Illinois, for psychiatric care sometime prior to October 4, 1983 (see Complainant's Exhibit 1, p. 1 from administrative hearing below).

On October 4, 1983, Mr. Deck was examined by a psychiatrist, Doctor S. Kantamneni, M.D., who then prepared a medical report addressed to Disability Determination Services, 510 East 12th Street, Des Moines, Iowa. (Exhibit 1) In his report Doctor Kantemneni noted that Mr. Deck was initially hospitalized in April, 1983, with acute agitation and depression. Doctor Kantamneni's diagnosis after the October 4, 1983, examination was major depression (Exhibit 1 pp. 1-2).

During the October 4, 1983, examination Doctor Kantamneni noted that Mr. Deck was cooperative but that he had difficulty relating to the doctor. Doctor Kantamneni observed that Mr. Deck's mood appeared anxious, withdrawn and depressed; that Mr. Deck kept on moving in the interview and was unable to sit still in his chair; that Mr. Deck, at times, appeared very tearful and apprehensive; that Mr. Deck's thought process revealed marked confusion and appeared extremely anxious and apprehensive; that Mr. Deck was unable to have a meaningful conversation for a prolonged length of time; that Mr. Deck's memory was grossly impaired, especially for recent events; and that Mr. Deck appeared to have a very low frustration tolerance level. In describing Mr. Deck's current level of daily functioning as of October 4,1983, Doctor Kantamneni stated in his report as follows:

Patient limited ability in relating to others and I feel that the patient can take care of his personal needs at this time. There appears to be changes in his interests as well as habits as a result of the current neuropsychiatric impairment. In reference to patients restriction of daily activities; I don't feel that the patient at this time, capable of driving a motor vehicle or operating any dangerous machinery, safely because of his altered emotional state at this time.

(Exhibit 1, p.2). Doctor Kantamneni also wrote as follows:

Patient has limited ability in relating to others, including fellow workers as well as supervisors and I feel that the patient can understand and follow simple instructions. I don't feel that the patient at this time can maintain the attention required to perform simple repetitive tasks as the patient appears acutely apprehensive and agitated. I don't feel that the patient can withstand the stress or the pressure associated with day to day work activities or can maintain the attention and concentration required in dealing with full time work activity. Patient has the capability of managing his own funds.

(Exhibit 1, pp. 2-3).

Mr. Deck's testimony at the contested case administrative hearing below indicated that he understood the diagnosis of his condition to be mixed neurosis, anxiety, and depression (Transcript p. 15). Mr. Deck testified that during his absence from work he was in a state of anxiety and depression and at times was in a state of depression where he could not cope with things. On direct examination Mr. Deck testified that he did not recall his physical activities ever being limited. He also testified that he had never been restricted from driving (Transcript p. 17). Mr. Deck's testimony did indicate that he had been taking medication for his condition from the time of his initial hospitalization in April, 1983, up to the time of the administrative hearing (Transcript pp. 15-16).

Prior to his examination by Doctor Kantamneni, Mr. Deck had applied for social security disability benefits sometime in August, 1983. He applied for these benefits at the suggestion of Daniel A. McQueen, personnel manager for Henkel, because his sick pay insurance was running out (Transcript p. 17). Beginning in October, 1983, Mr. Deck became eligible for social security disability benefits. His entitlement to these benefits continued as of the date of the administrative hearing. Medicare coverage was also provided beginning October 1, 1985 (Complainant's Exhibit 3 from administrative hearing below; Transcript p. 25).

In a letter dated February 3,1984, Mr. McQueen advised Mr. Deck that he would be terminated effective February 28, 1984, due to his inability to return to work.

Mr. Deck testified that on February 4, 1984, the date he received Mr. McQueen's letter, he had just been admitted to Mercy Hospital in Davenport, Iowa, for treatment (Transcript p. 91). In February, 1984, Mr. Deck was aware that his job with Henkel was in jeopardy because he had been away from work since April, 1983 (Transcript p. 34). Mr. Deck's testimony also revealed that he was not able to return to work in February, 1984, because his doctor had not released him (Transcript p. 35).

After union intervention in the matter, Henkel agreed to defer any action on Mr. Deck's termination (see administrative Hearing Exhibit J; Transcript pp. 36-38). In a February 29, 1984, letter to Edward Miller, President of Local Number 7 of the American Federation of Grain Millers, Mr. McQueen wrote:

In a discussion with Stanley Deck on February 28, 1984, 1 agreed to defer any action on his termination per my letter of February 3, 1984 until after the scheduled review by the Social Security Administration in November of this year as to the question of his continued disability. Stanley was asked to have his physician give me a current statement as to his disability and prognosis of recovery and to have his physician keep me apprised as to his status and condition.

Inasmuch as he has not been off work for a year, I have asked the Corporate Benefits Department for the cost of insurance in the event Stanley would want to continue his health care coverage.

Stanley has indicated this decision as being agreeable.

(Administrative Hearing Exhibit J). Mr. Deck understood that his doctor was supposed to submit medical reports to Henkel to verify that he continued to be disabled (Transcript p. 39).

In a letter dated April 10, 1984, Mr. McQueen wrote to Mr. Deck as follows:

When I talked with you on February 28, 1984, one of the conditions of my decision at that time was that you have your physician give me a narrative report of your condition and advise me periodically as to your progress. To date nothing has been received.

Please contact your doctor and have this information submitted.

(Administrative Hearing Exhibit B).

On May 3, 1984, his attending physician, Doctor B.G. Pineda, M.D., released Mr. Deck to return to work. In a May 3,1984, letter to Doctor Richard C. Cohan, Medical Director for Henkel, Doctor Pineda wrote:

This is in reply to your request regarding the present condition of Stanley R. Deck. I saw him May 3rd, and he is doing much better. He has been doing some work at home and I feel that he would be capable of returning to work any time from today. He needs to continue to take the medication. He is taking Eskalith 300 mgs. BID and Tranxene 15 mgs. TID. He has not been suffering from any side affects from the medications. These medications should not interfere with his performance of work.

(Administrative Exhibit C).

Doctor Pineda, however, subsequently withdrew his May 3, 1984, release and Mr. Deck did not return to work. On May 14, 1984, Mr. McQueen wrote a letter to Doctor Cohan explaining Mr. Deck's situation as follows:

In follow-up to our recent discussions and correspondence relative to Mr. Deck, the release he presented has been withdrawn by Dr. B.G. Pineda. Thursday I met with Stanley to discuss his return to work and the options that he had. Following lengthy conversation with him, his department superintendent, a chief steward, and a department steward, his decision was to return to his former job, which is that of Supply in the Starch- Gluten Department. It was obvious during our meeting that he was very nervous and indecisive when it came to his options and what he was really qualified, even minimally, to do. In a telephone conversation today, Dr. Pineda indicated his reason for withdrawing the release was due to concern for Stanley's personal safety. I told Dr. Pineda that safety, along with Stanley's ability to perform, has been our concern all along.

(Administrative Exhibit C).

On June 25, 1984, Mr. McQueen wrote Mr. Deck a letter informing him that his employment with Henkel was terminated effective June 25, 1984, because of the protracted period during which he had been unable to report to work (Administrative Exhibit L). Mr. Deck grieved this termination through union grievance procedure and ultimately on July 26, 1984, an agreement or stipulation was worked out which set forth a number of conditions governing Mr. Deck's return to work. This agreement was set forth in a July 30, 1984, letter from Charles A. Gault, Industrial Relations Director for Henkel, to Lloyd J. Freilinger, Vice President of the American Federation of Grain Millers. Mr. Gault wrote as follows:

This is to confirm the company's proposal relative to the termination grievance filed by Mr. Deck.

1. The company will assume the cost of having Mr. Deck examined by a psychiatrist mutually selected by the company's medical director and Mr. Deck's physician.

2. The parties will accept this psychiatrist's opinion as to whether or not Mr. Deck can be reemployed safely and with an anticipation of his ability to work regularly could be expected of any other employee and with no more supervision than any other employee.

3. The examining psychiatrist will review Mr. Deck's medical history and current treatment. If he finds that Mr. Deck can be reemployed he will also determine an appropriate trial period during which Mr. Deck must report as scheduled. If during the trial period he is absent due to a relapse or recurrence of illness he will be terminated and the examining psychiatrist must also determine, if Mr. Deck is remaining on medication, what is an appropriate reporting schedule for Mr. Deck's physician to confirm to the company that his patient is taking the medication and what possible side effects such medication may have in the work environment.

4. If Mr. Deck is reemployed his benefits will be reinstated at the completion of his trial period, but not later that 60 days from the date of reemployment.

5. If Mr. Deck is reinstated he will be eligible for back pay from July 26 to date of reemployment offset by any other income he has received during that period, for example, unemployment compensation, social security, etc.

(Administrative Hearing Exhibit D).

Pursuant to paragraph 1 of the agreement, Mr. Deck reported to Doctor Patrick G. Campbell, M.D., on August 2, 1984, for psychiatric examination. In a subsequent letter dated August 2, 1984, for psychiatric examination. In a subsequent letter dated August 16, 1984, Doctor Campbell wrote to Henkel's medical director as follows:

In my opinion, Mr. Deck does not suffer from an organic mental disorder, schizophrenic disorder, affective disorder, somatoform disorder or adjustment disorder.

I would recommend that Mr. Deck be returned to his usual employment as soon as possible. His continued psychiatric care with clear and immediate objectives would be indicated.

(Administrative Hearing Exhibit E).

Pursuant to the agreement, Mr. Deck returned to work sometime in August, 1984. His options were to return to clean-up and supply in the Starch-Gluten Department or to work in the vitamin department. He was discouraged from going into the vitamin department because of its difficulty and problems with two prior employees being terminated. There was also a conflict between management and the union as to seniority for that position (Holtsclaw Deposition p. 34; Transcrpt p. 89). Mr. Deck returned to clean-up and supply in the Starch-Gluten Department. The clean-up and supply job in Starch-Gluten was an entry level position and was a job that Mr. Deck has previously performed (Transcript pp. 14, 20, 53, 54, 88- 90, 114-115).

Approximately a month after he had returned to work, Mr. Deck fell off a ladder and broke his foot sometime in September, 1984 (Transcript pp. 20, 54-55). He was absent from work six to seven weeks recuperating from his foot injury and then returned to his clean-up and supply job in Starch-Gluten sometime in November, 1984 (Transcript p. 20, 57, 117).

On December 3, 1984, one week after he had been back on the job, Mr. Deck was assigned to begin training on the assistant operator's job, the next higher position in the Starch-Gluten Department (Transcript pp. 20, 21, 57, 58, 83, 192). Under the terms of the union contract training two steps up was required of all employees. In other words, all employees were required to train so that they could handle at least the next two more skilled positions in their department (Transcript pp. 58, 115, 138- 139, 148, 151-152, 156-157; Holtsclaw Deposition 8, 15- 16, 31-32, 36-37). There were no specific provisions on when employees were required to take the training to become qualified in positions two steps above their assigned job (Transcript p. 152; Holtsclaw Deposition pp. 36-37). The only requirement was that an employee take training every six months to requalify for the required positions unless the employee had worked in the position during that period (Holtsclaw Deposition p. 36). An employee could not disqualify himself or herself from a required position by failing or refusing to adequately train in that position (Transcript pp. 138, 148; Holtsclaw Deposition pp. 31-32).

Henkel's plant in Keokuk was a fairly sophisticated operation, requiring only six people per shift to run the entire plant (Transcript p. 139). The purpose of requiring employees to train and qualify to hold two positions above their assigned job was to ensure that trained people would be immediately available to provide relief and to run the plant in the event of illness or vacation (Transcript pp. 58, 115, 138-139, 153). It was to Henkel's benefit that an employee train and qualify to perform two positions up ( Transcript pp. 193, 58, 115, 138-139, 153) and if an employee did not do so the company did not have the value that it needed in that individual and that individual's employment was jeopardized (Transcript p. 138).

The clean-up and supply job that Mr. Deck initially returned to served as a "feeder job" to jobs above that entry level, so that in the event of vacation, sickness, or other areas of absenteeism, the company would have trained and qualified personnel to fill any particulatr job on the shift (Transcript pp. 114-115, 184). The two jobs immediately above the clean-up and supply job in the Starch-Gluten Department were the assistant operator job and the modified starch operator job (Transcript pp. 156, 161). There were other jobs above these two jobs (Transcript p. 156).

The assistant operator job which Mr. Deck began training for on December 3, 1984, was the lowest level job in Starch-Gluten outside of the clean-up and supply job (Transcript p. 191). The assistant operator's job involved monitoring equipment, taking different readings, checking different bottom-ways and samples, and some clean-up (Transcript p. 191 Jo be fully trained under the union contract, a clean-up and supply worker in Starch-Gluten would not only have to be able to perform the assistant operator job, but would have to be able to perform the job one step above that job (Holtsclaw Deposition p. 16).

Normal qualifying time for the assistant operator job was seven days (Transcript pp. 21, 152, 153; Holtsclaw Deposition pp. 13, 37). Training was considered completed when the employee's immediate supervisor felt that the employee no longer needed assistance or that the employee could perform the job on his or her own (Holtsclaw Deposition pp. 13, 37). When an employee was able to perform with no more supervision than required of normal employees performing the job, then that employee was deemed qualified for the job (Transcript p. 152). The person who made this determination in Mr. Deck's case was Glen Deatherage who was first-line supervisor in the Starch-Gluten Department at Henkel (Transcript pp. 160, 162, 174; Holtsclaw Deposition p. 20).

Even though the normal training period for the assistant operator job was seven days, training periods with some individuals took longer than with others (Transcript pp. 153, 180, 188; Holtsclaw Deposition pp. 13, 18, 37). Training time could be and was extended freely (Transcript pp. 153, 180, 181, 188; Holtsclaw Deposition pp. 13, 37). The record suggests that no employee had ever been disciplined or terminated from employment for failing to qualify within normally allotted training periods (Transcript p. 188; Holtsclaw Deposition pp. 13, 37, 38). However, the record likewise suggests that no employee had ever failed to become qualified by declining additional training when it was offered (Transcript p. 188; Holtsclaw deposition pp. 30, 37, 38).

Before reaching the halfway point of his training period, Mr. Deck approached his supervisor on December 5, 1984, and expressed a desire to be transferred out of the Starch-Gluten Department (Transcript pp. 176-179; Administrative Hearing Exhibits M and F). During this conversation the supervisor encouraged Mr. Deck to stick with his training and assured him that all necessary training would be provided (Transcript pp. 178, Administrative Exhibit M). The supervisor prepared a memorandum recording his December 5, 1984, conversation with Mr. Deck (Administrative Exhibit M). It stated:

I asked Stan the reason he requested transfer out of the department. He stated that he did not feel he could handle the Assistant Operator's job which he was in the process of training on. I pointed out to him that as of that day (12/05) he had only been in training for three days and that he still had four more days to do. He stated that he was worried about it and he admits that he lacks confidence in himself and also is concerned as to what people may think of him. He claimed that he has a difficult time remembering and based this on his illness and the medication that he's taking. I assured Stan that I would see that he had the necessary training in the allotted time frame which the job calls for and that 1, as well as his trainer, were there to help and assist as needed. I informed him that we would complete his training and upon completion I would evaluate him at that time to determine whether or not he is qualified. I made it understood that this was solely my decision and no one else's!

(Administrative Exhibit M).

Nevertheless, the supervisor wrote up Mr. Deck's request for transfer and Mr. Deck signed it, (Administrative Exhibit F). Even with this written request, it was still necessary to follow posting and sign-up procedures when and if an opening existed (Transcript p. 121). Job assignments and job transfers at Henkel were controlled by seniority provisions that resulted from a negotiated labor-management contract. Bumping or moving around to different jobs was done according to seniority application and lateral movement within the facility was governed in large part by seniority rules (Transcript p. 121; Holtsclaw Deposition p. 32). The mere fact that an employee might want to hold another job, or perhaps even have the skills to hold that job, would not be determinative of whether that employee could, in fact, work that job (Holtsclaw Deposition p.33). Efforts were made to determine if some lateral movement might be available for Mr. Deck (Holtsclaw Deposition p.33). Mr. Deck might possibly have avoided the situation of having to train and qualify for the assistant operator job if he could have bumped or moved into another job outside the Starch-Gluten Department (Holtsclaw Deposition p. 38). It was the Union's position that Mr. Deck did have bumping rights and the possibility of bumping was explored (Holtsclaw Deposition p. 33). However, no bumps were available (Holtsclaw Deposition p.33).

On December 9, 1984, the last day of his training, Mr. Deck was left alone to perform the assistant operator's job as per customary procedures (Transcript p. 180).

After working in the assistant operator position approximately two hours, Mr. Deck went to the supervisor's office to report that he was ill and requested permission to go home. A memorandum summarizing the conversation with Mr. Deck on December 9, 1984, was prepared (Administrative Hearing Exhibit N). It stated in part:

This date (12-9), being Mr. Deck's last day of training, provided for by the contract, and following what has been in the past, normal procedure, I allowed Stan to "run" the station himself and sent his trainer to the mill on clean-up. At 10:05 A.M. Stan came into my office and informed me that he did not feel that he could perform the duties of an assistant operator. He claimed that he had not been able to sleep much or eat the past 3, 4 days due to worrying and being nervous about the job and that he was physically sick at that time and requested permission to go home. I asked Stan if a few more days of training would help him grasp the operation of the assistant operator's station. He replied, no I don't feel it would make any difference due to his illness affecting his ability to remember. I told Stan that I felt after observing him and talking with Mr. Logsdon (trainer) that we felt that he was progressing at a reasonable pace, slow admittedly, but progressing. He said that it didn't matter, he felt that he knew best himself what he was able to handle and that he could not do it.

He stated no one understands and he himself doesn't understand. He knows he can't do it.

He asked if I could help him in any way and that he felt he could handle the supply job. I agreed, that I felt he could too. However, I pointed out that I didn't think it possible, but, that I would pass it along. I reminded him of his "statement" that he wanted out of the department at the earliest opportunity. He said yes, he still wanted to leave that in effect.

I asked Stan if he felt like finishing out the shift with his trainer or even working in the mill on clean-up. He said he felt so bad that he wanted to go home. He was concerned as to what he would be doing tomorrow and I assured him he would not be on assistant operator in any way shape or form; his training was completed and he was not qualified. He thanked me and said he would try to be at work tomorrow and that he would see his doctor on Tuesday in attempts to acquire a medical reason- excuse from machine operation, responsibility. I escorted Stan to the time clock; to his pick-up truck and watched until he was off company property (110:40 A.M.).

I feel that Stan is not capable, at this time, of operating any station in the Starch-Gluten Department other than supply. Given enough time -maybe, but in no way is it possible at this point in time.

Mr. Deck returned to work the next day and was placed back in his old clean-up and supply job (Transcript p. 69). Several hours after he had started to work on December 10, 1984, Mr. deck was called into the engineering conference room for a meeting. (Transcript 69-72, 125-130, 137-138, 185-187; Holtsclaw Deposition pp. 9-10, 21-24; Administrative Hearing Exhibit 0). At this meeting Mr. Deck was informed that he was being immediately suspended pending review of all circumstances related to his situation. In correspondence, dated December 10, 1984, Mr. McQueen wrote:

At 11:00 a.m., December 10, 1984, 1 met with Stanley Deck in the presence of Richard Holtsclaw, Union Representative; Roger Dallner, Production Manager; and Glen Deatherage, Shift Supervisor, and advised Deck that based on his own statments of his inability to do the job and our concerns that his attitude creates a situation which could be hazardous to himself and other employees, he was being immediately suspended pending review of all circumstances relative to his situation.

He stated he could do the "supply job." It was explained to him the relationship of this job to those immediately above, and that just being able to do the "supply" work was not acceptable. The people on this job must be able to do the next two higher jobs. This is expected of all in the Starch-Gluten or other departments. Again, concern was expressed for his personal safety in any area of the plant.

(Administrative Hearing Exhibit 0).

Mr. Deck with the aid of the union pursued the suspension through contract grievance procedures and on December 12, 1984, a special joint labor relations committee meeting was held. The meeting was attended by management and union representatives and Mr. Deck. Minutes of this meeting jointly signed by management and union representatives provided as follows:

This meeting was held in accordance with Paragraph 16-3 of the agreement between Henkel Corporation and the AFGM, Local #7, to discuss the suspension of Stanley Deck on December 10, 1984. The Committee was advised that the reason for Mr. Deck's suspension had not changed. Based on his own statements of inability to do the job and concern that his attitude creates a situation which could be hazardous to himself/ and other employees, the suspension was imposed pending review of all circumstances relative to his situation.

As a part of this investigation, Management asked for a complete medical summary from Mr. Deck's physician and indicated that nothing has been received relative to his condition since his return to work.

The Union asked that the matter be referred to the step IV level of the grievance procedure.

(Administrative Hearing Exhibit 1).

An intra-company correspondence dated December 13, 1984, from Mr. McQueen to Mr. Gault indicated that in the Step I I I appeal of Mr. Deck's suspension, Mr. McQueen requested Mr. Deck and the Committee to have Mr. Deck's doctor (Doctor Pineda) provide information concerning Mr. Deck's condition and frequency of treatment, medication and possible side effects, effects or problems if medication is not taken, safety around moving equipment, safety working with chemicals, safety around hot pipes and electrical equipment, and safety on stairs, ladders, steps, and working in high places (Administrative Hearing Exhibit P). Mr. Deck's doctor in a letter to Mr. McQueen dated January 3, 1985, reported as follows:

Mr. Deck was seen on January 3, 1985 and he is feeling well according to him and he looks that way to me. He realizes he is not 100% himself as prior to his illness of a year ago. But he is well enough to be able to perform his job. However, he feels it would be to his advantage if he could be given another job, one possibly with less exposure to high places and away from dangerous chemicals. However, if this is not possible, he feels he can do the job he has had the last few weeks.

His medicines were discontinued gradually and when he dropped them completely after two days, he become quite sick and the same symptoms he use to have again troubled him. So he had to resume the medication and is feeling much better now.

Physical examination did not reveal any side affects from the medication. At the present time, I feel I cannot fully guarantee that he would be free of any accident in any kind of job he would have. But this is also true with any one. An accident can happen to anyone. All I can say at the present time, is I cannot detect any side affects (sic) as of now

(Administrative Hearing Exhibit H).

On January 15, 1985, a fourth step meeting was held pursuant to grievance procedure. In a letter dated January 18, 1985, from Mr. Charles Gault to Mr. Lloyd Freilinger, Vice President of the American Federation of Grain Millers, the company answered Mr. Deck's grievance by denying it and converting Mr. Deck's suspension to a discharge effective January 21, 1985. Mr. Deck was notified of his discharge in certified mail letter dated January 21, 1985 (Administrative Hearing Exhibit 2 - page 1).

The Union notified Mr. Deck that his grievance did not merit pursing through further grievance procedure. Later, the Union notified Mr. Deck that the Union Executive Board denied his appeal because they felt that his case did not warrant arbitration. Mr. Deck appealed this decision to Robert W. Willis, General President of the American Federation of Grain Millers. On March 7, 1985, Mr. Willis wrote Mr. Deck stating that he had reviewed Mr. Deck's grievance and found no basis which would justify requiring the local union to process the grievance further (Administrative Hearing Exhibit G). The testimony of local chief union steward Richard Holtsclaw suggests that Union officials did not pursue Mr. Deck's grievance further because they concluded that the July 30,1984, agreement or stipulation (Administrative Hearing Exhibit D) governed Mr. Deck's employment and that possibly Mr. Deck had not met the terms of that agreement or stipulation (Transcript p. 40)

Unsuccessful in his attempts to grieve his suspension and termination, Mr. Deck filed a complaint with the Iowa Civil Rights Commission on May 14, 1985, alleging that Henkel illegally discriminated against him on the basis of mental disability in violation of Iowa Code Chapter 601 A. In his complaint Mr. Deck contended that he was terminated because of a perceived mental disability.

The complaint was investigated, probable cause was found, conciliation attempts failed, and on December 23, 1987, a Notice of Hearing was issued. The complaint came on for hearing before an Administrative Law Judge on April 21, 1988. In a Proposed Decision dated December 8, 1988, the Administrative Law Judge found that Henkel did not commit an illegal discriminatory act when it terminated Mr. Deck on January 21, 1985, and dismissed his complaint.

In its April 13, 1989, Final Order the Iowa Civil Rights Commission reversed the Administrative Law Judge's December 8,1988, Proposed Decision, found that Henkel discriminated against Mr. Deck by suspending and terminating him because of his disability in violation of Iowa Code Section 601 A.6, and awarded Mr. Deck back pay and $5,000.00 in compensatory damages for emotional distress. On May 9, 1989, Henkel filed its Petition for Judicial Review which is now before the Court for ruling.

Based upon the agency record below and having considered the briefs and arguments of the parties, the Court makes the following:

CONCLUSIONS OF LAW

The applicable statutory law in this case is contained in Iowa Code Section 601A.6 (1)(a) and Iowa Code Section 601A.2(4) (formerly Iowa Code Section 601A.2 (11)). The relevant portions of Iowa Code Section 601.A (1)(a) provide as follows:

601 A.6 Unfair employment practices.

1. It shall be an unfair or discriminatory practice for any:

a. Person ... to discharge any employee, or to otherwise discriminate in employment against ... any employee because of the ... disability of such . . . employee, unless based upon the nature of the occupation. If a disabled person is qualified to perform a particular occupation, by reason of training or experience, the nature of that occupation shall not be the basis for exception to the unfair or discriminating practices prohibited by this subsection.

(emphasis added). Iowa Code Section 601A.2 (4) (formerly Iowa Code Section 601 A.2 (11)) provides the following definition of disability:

"Disability" means the physical or mental condition of a person which constitutes a substantial handicap, . . .

The legislature has not provided a definition for "substantial handicap" and this phrase has been and is open to interpretation. See Sommers v. Iowa Civil Rights Commission, 337 N.W.2d 470, 474-477 (Iowa 1983); Probasco v. Iowa Civil Rights Commission, 420 N.W.2d 432, 434-436 (Iowa 1988).

The Iowa Civil Rights Commission has adopted rules which define what a "substantially handicapped person" is and which also define terms contained in that definition. These rules contained in Iowa Administrative Code Sections 161-8.26 (1) through 161-8.26 (5) provide as follows:

8.26 (1) 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.

8.26 (2) The term "physical or mental impairment" means:

a. 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; genito- urinary; hemic and lymphatic; skin; and endocrine; or

b. Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

8.26 (3) The term "major life activities" means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.

8.26 (4) The term "has a record of such an impairment" means has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.

8.26 (5) The term "is regarded as having an impairment" means:

a. Has a physical or mental impairment 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.

(emphasis added).

The Iowa Supreme Court has interpreted the phrase "substantially limits" to mean the degree to which the impairment affects an individual's employability and has held that an impairment that interferes with an individual's ability to do a particular job but does not significantly decrease that individual's ability to obtain satisfactory employment otherwise is not suubstantially limiting within the applicable administrative rules and statute. Probasco v. Iowa Civil Rights Commission, 420 N.W.2d 432, 436 (Iowa 1988).

If an employee has a disability within the meaning of Iowa Code Sections 601A.6 (1)(a) and 601A.2 (4) (formerly 601 A.2(11 1 )), then the employer has a duty to reasonably accommodate the employee's disability. See Halsey v. Coca-Cola Bottling Co., 410 N.W.2d 250, 252 (Iowa 1987); Cerro Gordo County Care Facility v. Iowa Civil Rights Commission, 410 N.W.2d 196, 197 (Iowa 1987); Foods, Inc., v. Iowa Civil Rights Commission, 318 N.W.2d 162, 167 (Iowa 1982); see generally Nichols, Iowa's Law Prohibiting Disability Discrimination In Employment: An Overview, 32 Drake L.Rev. 273, 344-383 (1982-83). While it is not expressly imposed by statute, the Iowa Supreme Court has found such duty implicit in the language and statutory scheme of Chapter 601A and has required reasonable accommodation by implication under 601A. See Cerro Gordo County Care Facility, 401 N.W.2d at 196-197; see also 32 Drake L.Rev. at 347.

The Iowa Civil Rights Commission has adopted administrative rules to implement the accommodation requirements implied from the language and statutory scheme of Chapter 601A. Iowa Administrative Code Section 161-8.27(6) provides as follows:

8.27 (6) Reasonable accommodations. An employer shall make reasonable accommodation to the known physical or mental limitations of an otherwise qualified handicapped applicant or employee unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of its program.

a. Reasonable accommodation may include:

(1) Making facilities used by employees, readily accessible to and usable by handicapped persons, and

(2) Job restructuring, part-time or modified work schedules, acquisition or modification of equipment or devices, the provision of readers or interpreters, and other similar actions.

b. In determining pursuant to the first paragraph of this subrule whether an accommodation would impose an undue hardship on the operation of an employer's program, factors to be considered include:

(1) The overall size of the employer's program with respect to number of employees, number and type of facilities, and size of budget;

(2) The type of the employer's operation, including the composition and structure of the employer's workforce; and

(3) The nature and cost of the accommodation needed.

c. An employer may not deny any employment opportunity to a qualified handicapped employee or applicant if the basis for the denial is the need to make reasonable accommodation to the physical or mental limitations of the employee or applicant.

(emphasis added). Iowa Administrative Code Section 16 1 - 8.27(7) provides as follows:

8.27(7) Occupational training and retraining programs, including but not limited to guidance programs, apprentice training programs, on-the- job training programs and executive training programs, shall not be conducted in a manner to discriminate against persons with physical or mental disabilities.

Iowa Administrative Code Section 161-8.28 provides as follows:

161-828(601A) Disabilities arising during employment. When an individual becomes disabled, from whatever cause, during a term of employment, the employer shall make every reasonable effort to continue the individual in the same position or to retain and reassign the employee and to assist that individual's rehabilitation. No terms in this rule shall be construed to mean that the employer must erect a training and skills center.

Iowa Code Chapter 601A requires a reasonable effort by the employer to aid the employee in remaining employed. Cerro Gordo County Care Facility, 401 N.W.2d at 197. Reasonable accommodation by the employer may take many forms and it is only required to an extent that a refusal to provide some accommodation would be discrimination itself. Cerro Gordo County Care Facility, 401 N.W.2d at 197. The employer is required to act reasonably. Reasonableness, a flexible standard, must be measured not only by the disabled employee's needs and desires, but also by the economic and other realities faced by the employer. Cerro Gordo County Care Facility, 401 N.W.2d at 197.

The Iowa Supreme Court has discussed the analytical framework applicable in disability discrimination cases. See Cerro Gordo County Care Facility v. Iowa Civil Rights Commission, 401 N.W.2d 192,196 (Iowa 1987); Trobaugh v. Hy-vee Food Stores, Inc., 392 N.W.2d 154, 156-157 (Iowa 1986). The Trobaugh case suggests that in order for Mr. Deck to have established a prima facie case of disability discrimination, he had to show:

1) that he belonged to a group protected by Iowa Code Chapter 601 A (that he had a disability within the meaning of Iowa Code Sections 601 A.6(1 ) and 601 A. 2(4) (formerly 601 A.2(11 1)));

2) that he was qualified for the job from which he was discharged;

3) that, despite his qualifications he was terminated; and

4) that, after his termination, the employer hired a person not in Mr. Deck's protected class or retained persons with comparable or lesser qualifications who are not in a protected group.

Trobaugh v. Hy-Vee Food Stores, Inc., 392 N.W.2d 154 156 (Iowa 1986); see also 32 drake L.Rev. at 399-400 With regard to the second element, an employee's qualifications must take into account the individual's ability to perform the job in a reasonably competent and satisfactory manner given reasonable accommodation by the employer. See Foods, Inc. v. Iowa Civil Rights Commission, 318 N.W.2d 162,167 (Iowa 1982); 32 Drake L.Rev. at 400; see generally Cerro Gordo County Care Facility v. Iowa Civil Rights Commission, 401 N.W.2d 192, 196-198 (Iowa 1986); Halsey v. Coca-Cola Bottling Company, 410 N.W.2d 250,252-253 (Iowa 1987). Mowrey v. Iowa Civil Rights Commission, 424 N.W.2d 764, 767-768 (Iowa App. 1988).

Taking unfavorable employment action against an individual is not illegal per se under Chapter 601 A if the employee is not qualified to perform the job after attempts to reasonably accommodate the disability. See Halsey, 410 N.W.2d at 252-253; Cerro Gordo County Care Facility, 401 N.W.2d at 196-198; Mowrey, 424 N.W.2d at 767-768. In discussing the requirement of reasonable accommodation within the analytical framework applicable in civil rights cases under Iowa Code Chapter 601 A, the Iowa Supreme Court in Cerro Gordo County Care Facility v. Iowa Civil Rights Commission stated as follows:

We detailed the analytical framework outlining the burden and order of presenting proof in civil rights cases under chapter 601 A in King v. Iowa Civil Rights Comm'n, 334 N.W.2d 598, 601-03 (Iowa 1983). We need not repeat the framework in detail here, except to reiterate that the burden of proof remains with the complainant to show discrimination, and the employer only has a duty to produce evidence of reasonable accommodation after a prima facie case of discrimination has been presented.

(emphasis added). 401 N.W.2d at 196. An employer's motive may be examined to determine whether the employer was moved by discriminatory bias rather than business judgment. Cerro Gordo County Care Facility, 401 N.W.2d at 197-198.

In the case at bar, Henkel contends the record below fails to establish that Mr. Deck was a disabled person under Iowa Code Section 601A.6. Henkel in essence argues that Mr. Deck failed to establish the first element of his prima facie case by failing to show as a matter of law that he had a disability within the meaning of Iowa Code Sections 601A.6 (1)(a) and 601A.2 (4)(formerly 601 A.2 (111 )). Henkel also asserts that the commission's findings that it failed to reasonably accommodate Mr. Deck's disability and that it unlawfully discriminated against him by discharging him are unsupported by substantial evidence. Henkel contends that it reasonably attempted to accommodate Mr. Deck's impairment and terminated Mr. Deck only when it became apparent that he was not able to adequately qualify to perform all aspects of his job.

The Administrative Law Judge below found as a matter of law that while Mr. Deck had established that he was mentally impaired within the meaning of applicable administrative rules, he had not established the first and second elements of his prima facie case (Proposed Decision pp. 11, 12, 13). The Administrative Law Judge concluded as a matter of law that Mr. Deck's employability would not be curtailed to the extent necessary to qualify him as a disabled person within the protection of the Iowa Civil Rights Act (Proposed Decision p. 12, 13). In making this conclusion it is apparent that the Administrative Law Judge applied the Iowa Supreme Court's interpretation of "substantially limits" as set forth in Probasco v. Iowa Civil Rights Commission, 420 N.W.2d 432, 436-437 (Iowa 1988), and implicitly found that Mr. Deck was not a "substantially handicapped person" within the meaning of Iowa Administrative Code Section 161-8.26 (1) and that he consequently did not have a disability within the meaning of Iowa Code Sections 601 A.6 (1 )(a) and 601 A.2 (4) (formerly 601A.2 (11)) (Proposed pp. 12,13). The Administrative Law Judge also concluded that Mr. Deck was not qualified to do the work required of him and that Henkel did reasonably accommodate Mr. Deck's disability from April 13,1983 (Proposed Decision pp. 11, 12). Based upon these legal conclusions the administrative Law Judge found that Henkel had not committed an illegal discriminatory act when it terminated Mr. Deck on January 21, 1985, and dismissed Mr. Deck's complaint (Proposed decision p. 13).

The Iowa Civil Rights Commission rejected the proposed legal conclusions of the Administrative Law Judge. In the Conclusions of Law portion of its Final Order the Commission specifically found that Mr. Deck was mentally impaired within the meaning of Iowa Administrative Code Sections 161-8.26 (1) and 161-8.26 (5) (Final Order p.10). The Commission, however, did not specifically make any explicit legal findings as to whether his mental impairment substantially limited one or more major life activities or whether Mr. Deck was a "substantially handicapped person" within the meaning of Iowa Administrative Code Section 161- 8.26 (1). Neither did the Commission make any explicit legal conclusions as to whether Mr. Deck was a disabled person within the meaning of Iowa Code Section 601A.6 (1)(a) or whether Mr. Deck had a disability within the meaning of Iowa Code Sections 601A.6 (1)(a) and 601A.2 (4) (formerly 601A.2 (11)) (see Final Order pp. 10-14). The Commission did nevertheless, specifically find as a matter of law that Mr. Deck was a "qualified handicapped employee" within the meaning of Iowa Administrative Code Section 161-8.27 (6) (Final Order pp. 11, 12). From this legal conclusion it may be reasonably assumed that the Commission implicitly concluded that Mr. Deck was a "substantially hadnicapped person" within the meaning of Iowa Administrative Code section 161-8.26 (1), that Mr. Deck has a disability within the meaning of Iowa Code Sections 601 A.6 (1)(a) and 601 A.2 (4) (formerly 601.A.2 (11)), and that Mr. Deck had established the first element of his prima facie case. It may also be reasonably assumed that the Commission concluded that Mr. Deck had established that he was qualified for the job from which he was discharged and that he had established the second element of his prima facie case. The Commission specifically concluded that Henkel made no effort to accommodate Mr. Deck's mental illness (Final Order P. 12). Based upon these legal conclusions the Commission found that Henkel had committed an illegal discriminatory act when it terminated Mr. Deck on January 21, 1985, and that Henkel violated Iowa Code Section 601A.6 by suspending and then terminating Mr. Deck's employment because of his disability (Final Order pp. 12, 14).

There appears to be no dispute between the parties as to whether the third or fourth elements of the requisite prima facie case have been established. The issues raised in this judicial review proceeding appear to revolve around the first and second elements of Mr. Deck's prima facie case. The legal issues now before the Court on judicial review are: 1) WHETHER THE COMMISSION'S IMPLICIT CONCLUSION THAT MR. DECK HAD A DISABILITY WITHIN THE MEANING OF IOWA CODE SECTIONS 601A.6 (1)(a) AND 601A.2 (4) (formerly 601A.2 (11)) AND THUS BELONGED TO A GROUP PROTECTED BY CHAPTER 601 A IS SUPPORTED BY SUBSTANTIAL EVIDENCE AND JUSTIFIED AS A MATTER OF LAW, 2) WHETHER THE COMMISSION'S CONCLUSION THAT MR. DECK WAS QUALIFIED TO PERFORM THE JOB FROM WHICH HE WAS DISCHARGED IS SUPPORTED BY SUBSTANTIAL EVIDENCE AND JUSTIFIED AS A MATTER OF LAW; and 3) WHETHER THE COMMISSION'S CONCLUSION THAT HENKEL MADE NO EFFORT TO ACCOMMODATE MR. DECK'S MENTAL ILLNESS IS SUPPORTED BY SUBSTANTIAL EVIDENCE AND JUSTIFIED AS A MATTER OF LAW.

With regard to the first issue, the Commission's finding that Mr. Deck was mentally impaired within the meaning of Iowa Code Section 161-8.26 (1) is clearly supported by substantial evidence and justified as matter of law. However, it is extremely questionable whether Mr. Deck had a protected "disability" within the meaning of Iowa Code Sections 601A.6 (1)(a) and 601A.2 (4) (formerly 601A.2 (11). To establish such a disability which would bring him within the protection of Iowa Code Chapter 601 A, Mr. Deck had to establish that his impairment or mental condition constituted a "substantial handicap" within the meaning of Iowa Code Section 601A.2 (4) (formally 601A.2 (11)). See Sommers v. Iowa Civil Rights Commission, 337 N.W.2d 470, 474-475 (Iowa 1983); Probasco v. Iowa Civil Rights Commission, 420 N.W.2d 432, 435 (Iowa 1988). Presumably, Mr. Deck could have accomplished this under Iowa Administrative Code Section 161-8.26 (1) by showing: 1) that he actually had a mental impairment which substantially limited a major life activity at the time of his termination; 2) that he had a record of a mental impairment which substantially limited a major life activity; or 3) that his employer regarded him as having a mental impairment which substantially limited a major life activity. See Sommers, 337 N.W.2d at 476.

The record below suggests two of Mr. Deck's major life activities, work and learning, were affected by his mental condition (Transcript p. 17; Administrative Hearing Exhibit 1). However, the Court is unable to reasonably conclude from the record that Mr. Deck actually had a mental impairment which "substantially limited" a major life activity at the time he was suspended and terminated. See Probasco, 420 N.W.2d at 436. Mr. Deck had been released to work and was clearly able to do the clean up and supply job in the Starch-Gluten Department at Henkel (Transcript pp. 148, 149, 161, 184, 187, Administrative Hearing Exhibit N). Between August 14, 1984, and January 3, 1985, doctor's reports indicated that Mr. Deck was well enough to work (Administrative Hearing Exhibits E and H). The record below does not support a finding that Mr. Deck had a disability and substantial handicap within the meaning of Iowa Code Sections 601A.6 (1)(a) and 601A.2 (4) (formally 601A.2 (11)) by reason of actually having a substantially limiting mental impairment at the time of his suspension and discharge. See Probasco, 420 N.W.2d at 436-437.

The Commission argues that the Probasco case does not address the other two groups who are protected by Iowa Administrative Code Section 161-8.26 (1), namely those who have a record of an impairment and those who are regarded as having an impairment. However, it appears from the language of Iowa Administrative Code Section 161-8.26 (1) that the words "such an impairment" refer to a mental impairment which "substantially limits" one or more major life activities. To the extent that the two additional situations listed in 161-8.26 (1) require a substantially limiting impairment or the perception of a substantially limiting impairment, the Iowa Supreme Court's interpretation of the phrase "substantially limits" is applicable. See Probasco, 420 N.W.2d at 436-437.

While his managers and supervisors may have regarded or perceived Mr. Deck as having mental impairment, there is not substantial evidence in the record to support a finding that his managers and supervisors regarded or perceived him as having a substantially limiting impairment as required by Iowa Administrative Code Sections 161-8.26 (1), 161-8.26 (5)(a), and 161-8.26 (5)(b), and Probasco v. Iowa Civil Rights Commission, 420 N.W.2d 432, 436-437 (Iowa 1988). Mr. Deck's managers and supervisors perceived that he was able to perform the clean-up and supply job (Transcript pp. 148, 149, 161, 184, 187, Administrative Hearing Exhibit N) and regarded his progression on the assistant operator's job as slow but acceptable (Transcript pp. 84, 168, 169, 178, 179; Administrative Hearing Exhibit N). Finally, to the extent that Iowa Administrative Code Section 161-8.26 (5)(c) does not require a perception of a substantially limiting impairment and is inconsistent with Iowa Administrative Code Section 161-8.26 (1) and Iowa Code Sections 601A.6 (1)(a) and 601A.2 (4) (formally 601 A.2 (11)) as interpreted in Probasco, the Court finds that Administrative Code Section to be beyond the scope of the enabling legislation and therefore unenforceable. See Sommers v. Iowa Civil Rights Commission, 337 N.W.2d 470, 475 (Iowa 1983); Probasco, 420 N.W.2d at 436-437.

While the record suggests that Mr. Deck may have had a record of having a substantially limiting mental impairment prior to returning to work for Henkel in August or September, 1984, the Commission did not employ or rely on this ground in rendering its decision (Final Order pp. 10-14). Even if the Commission had applied this ground, there is not substantial evidence to support a finding that his managers and supervisors had the attitude or perception that Mr. Deck had a substantially limiting mental impairment simply because he had a previous history of such impairment (Transcript pp. 139, 190, 148, 149,161,184,187, 84,168,169,178,179; Administrative Hearing Exhibit N). It is difficult to justify finding a person disabled within Iowa Code Chapter 601 A solely because that person had a previous history of a substantially limiting impairment, if there was not actual perception or attitude that the person had a present impairment because of such record. A record of a prior substantially limiting impairment alone does not become a disability unless the attitudes and perceptions of others transform it into a present disability. See Sommers v. Iowa Civil Rights Commission, 337 N.W.2d 470, 476 (Iowa 1983). To extent that Iowa Administrative Code Sections 161-8.26 (1) and 161-8.26 (4) would permit a finding of substantial handicap or disability under Iowa Code Chapter 601 A without actual perception by others of a substantially limiting impairment, the Court finds those administrative code sections to be beyond the scope of the enabling legislation and therefore unenforceable. See Sommers, 337 N.W.2d at 475; Probasco, 420 N.W.2d at -437.

Henkel's Director of Industrial Relations, Charles Gault, listed Mr. Deck's failure to meet the terms of his probation under the agreement or stipulation governing his return to work (Administrative Exhibit D) as a partial reason for denial of Mr. Deck's grievance challenging his suspension (Administrative Exhibit 2). The Commmission appears to contend that this together with Mr. Deck's prior history of mental illness was sufficient to establish that Henkel management actually perceived that Mr. Deck had a present substantially limiting impairment. Upon reviewing the whole record, however, the Court concludes that this evidence does not rise to the level of or constitute substantial evidence to support a conclusion that Mr. Deck's managers and supervisor acually preceived him to have a substantially limiting mental impairment. Substantial evidence need not be a preponderance, but a mere scintilla will not suffice. Elliot v. Iowa Department of Transportation, 377 N.W.2d 250, 256 (Iowa App. 1985); Herring v. Iowa Law Enforcement Academy, 341 N.W2d 65, 66-69 (Iowa App. 1983). Upon reviewing the whole record, the Court concludes that the Commission's implicit finding that Stanley Deck was a disabled person and had a disability within the meaning of Iowa Code Sections 601A.6 (1)(a) and 601a.2 (4) (formerly 601A.2 (11)) at the time he was suspended and terminated is not supported by substantial evidence or justified as a matter of law.

Further, the record below clearly establishes that Mr. Deck was not qualified to perform the requirements of the job from which he was discharged. The Commission's finding that Mr. Deck was a qualified handicapped employee is not supported by substantial evidence or justified as a matter of law. Mr. Deck was clearly required by the union contract to train and qualify to perform in the next two positions above his clean-up and supply job (Transcript pp. 58, 115, 138-139, 148, 151-152, 156-157; Holtsclaw Deposition 8, 15-16, 31- 32, 36-37). Mr. Deck could not disqualify himself from a required position by failing or refusing to adequately train in that position (Transcript pp. 138, 148; Holtsclaw Deposition pp. 31-32). It is clear from the record that while Mr. Deck could perform the clean-up and supply job, he was not qualified to perform the assistant operator job which was only the first step above the clean-up and supply job (Transcript pp. 149,128,151, 155,178,181-183,186; Administrative Hearing Exhibits M and N). Mr. Deck's supervisor offered additional training time and encouraged him to continue training but Mr. Deck declined and took the position that he could not do the assistant operator's job (Transcript pp. 181, 153, 128, 132, 133, 138, 139, 150, 151, 159-160, 178, 1882, 183, 186; Holtsclaw Deposition p. 15; Administrative Hearing Exhibit N; see also Commission Finding of Fact 22 in Final Order pp. 6- 7). Mr. Deck, by his own statements to his supervisor indicated that he was not able to do the assistant operator work which was a contractual requirement of his job was not able to complete the training necessary to become qualified even when an extension of training was available. The fact that his inability to perform the necessary tasks of his job may have been related to his disability does not alter the requirement that he be qualified to do the job. There is not substantial evidence in the record to support a conclusion that Mr. Deck was able to perform the requirements of the job he was terminated from in a reasonably competent and satisfactory manner.

Finally, even assuming that Mr. Deck had a disability protected under Iowa Code Chapter 601A and that he was an otherwise qualified handicapped employee entitled to reasonable accommodation under Iowa Administrative Code Section 161-8.27 (6), the Court is unable to find that the Commission's conclusion that Henkel failed to accommodate Mr. Deck's handicap is supported by substantial evidence or justified as a matter of law. Henkel management deferred from terminating Mr. Deck for well over a year after April 13,1983, while Mr. Deck was absent from work and could not do any work. When Mr. Deck initially returned to work in clean-up and supply in Starch-Gluten sometime in late August or early September, 1984, he was on the job for approximately one month before he broke his foot (Transcript p. 54). He was then away from work for approximately six or seven weeks recovering from his foot injury. He returned to work and was on the job in clean-up and supply for approximately one week when he was assigned to train on the aassistant operator's job. When it became apparent that he had not qualified to perform the assistant operator job within the ordinary seven-day training period, Mr. Deck's supervisor offered additional training time. Mr. Deck declined this offer of additional training indicating that it would not do any good and that he could not do the assistant operator job. Mr. Deck's clean-up and supply job in the Starch-Gluten Department was a lowest level entry level job and served as a feeder job for higher level tasks. Henkel and Mr. Deck were constrained by union contract bumping prodcedures in attempting to obtain a placement in a lateral level job and there were no lateral level jobs available for Mr. Deck. The contract requirement ensuring that employees trained and became qualified two steps up was very important in view of Henkel's operation requiring only six people per shift in production.

Under the circumstances of this case, offering Mr. Deck additional training time to qualify for the contractually required assistant operator job constituted a reasonable effort by Henkel to aid Mr. Deck in remaining employed. The Court concludes that there is evidence of reasonable accommodation, that the Commission overstated Henkel's duty to accommodate in this case, and that Henkel reasonably accommodated Mr. Deck's mental impairment as a matter of law by offering additional time to train and qualify for the assistant operator job. See Cerro Gordo County Care Facility v. Iowa Civil Rights Commission, 401 N.W.2d 192, 196-197 (Iowa 1987); Halsey v. Coca-Cola Bottling Co., 410 N.W.2d 250, 252-253 (Iowa 1987). Mr. Deck declined Henkel's attempt to reasonably accommodate his impairment and instead took the position that he could not perform or qualify for the assistant operator job which was a contractually required task of his job. It would not be reasonable to require Henkel to continue to make attempts to accommodate an employee who had declined offered accommodation and who took the position that he could not train and qualify to perform a contractually required task. Henkel did reasonably accommodate Mr. Deck's mental impairment beginning on April 13, 1983, and continued to do so to the extent that its managers and supervisor could.

The record, when viewed as a whole, does not support a finding that Henkel was motivated by discriminatory bias. Rather, Henkel made an effort to keep Mr. Deck on as an employee. Henkel reasonably accommodated Mr. Deck's impairment and terminated Mr. Deck only when it became apparent that he could not adequately train and qualify to perform all contractually required aspects of his job. His termination was not based on perceived disability but on actual inability to perform the necessary tasks of his job. The Court cannot find substantial evidence, when the record is viewed as a whole, to support the commission's decisions that Mr. Deck met his burden of proving disability discrimination and that Henkel failed to reasonably accommodate Mr. Deck's mental impairment. Nor can the Court conclude that such decisions are justified as a matter of law.

For the reasons stated above the Court concludes that the final decision of Iowa Civil Rights Commission should be reversed. In order to correct errors of law which are dispositive of the case, a court may remand the matter to the agency for final appropriate disposition. Probasco v. Iowa Civil Rights Commission, 420 N.W.2d 432, 437 (Iowa 1988). The Court concludes that the final appropriate disposition in this case is dismissal.

IT IS THEREFORE ORDERED That the final decision of the Iowa Civil Rights Commission in this case shall be and hereby is reversed and remanded and the Iowa Civil Rights Commission is hereby directed to dismiss Stanley Deck's complaint CP# 05-85-12982.

IT IS FURTHER ORDERED That costs of this proceeding for judicial review shall be assessed to the Respondent.

Dated this 3rd day of April, 1990.

JUDGE, EIGHTH JUDICIAL DISTRICT OF IOWA

Copies to: Counsel of Record
Larry Shepler
Suite 102 Executive Square
400 Main Street
Davenport, IA 52801

Teresa Baustian
Asst. Atty General
Civil Rights Division
211 E. Maple St., 2nd Floor
Des Moines, IA 50319