IN THE IOWA DISTRICT COURT FOR POLK COUNTY
RONALD E. NICOL, PETITIONER,
V.
IOWA CIVIL RIGHTS COMMISSION, RESPONDENT.
CASE NO. AA 1711
DECISION ON ADMINISTRATIVE APPEAL
The above-captioned Chapter 17A of the Code
administrative appeal came on for hearing before the undersigned on the
12th day of April, 1991. Petitioner was represented by David Goldman, and
Respondent, Iowa Civil Rights Commission (hereafter "Commission"),
was represented by Assistant Attorney General Rick Autry.
After giving due consideration to the record and the briefs and arguments
of counsel, the Court is now prepared to enter its Decision on Administrative
Appeal.
The final decision and order was entered by the Commission on July 23,
1990, on a complaint filed by Petitioner. Rehearing was denied on August
21, 1990. This Petition for Judicial Review was filed on September 18, 1990.
This petition was filed within 30 days of the denial of rehearing and is,
therefore, timely filed per section 17A.1 9(3) of the Code.
The court finds it has jurisdiction over the parties and subject matter
herein.
Petitioner began these proceedings by filing a charge of discrimination
with the Commission on October 18, 1985 (Exhibit 1). He filed an amendment
to it on October 13, 1986 (Exhibit 2). The original charge was for physical
disability discrimination, and the amendment added age discrimination. Petitioner
had been an employee of the Buchanan County Sheriff's Department since 1972.
He was approximately 38 years of age when he started with the department.
A newly elected sheriff took office in early January of 1985. Petitioner
claims his problems began around mid-January 1985 up to and including September
1985 when he resigned.
Since 1980 Petitioner has been diagnosed as having multiple sclerosis.
He walks with a limp and wears a brace on his left leg. He cannot lift over
15 pounds, cannot run, has trouble with steps and cannot walk long distances
(one-half to one block at a time). In 1986 he was 51 years old and the oldest
deputy in the department.
In the fall of 1984, Petitioner was doing the majority of the civil work
(like serving notices and other papers, etc.), supervising records (in his
office), some minimal jail work and no routine patrol work. It is obvious
that his then employer, former Sheriff Joel Dryer, was accommodating Petitioner's
condition of health in assigning work to him that was not so physically
demanding of him.
The history of Petitioner's disability was that there would
be periodic exacerbations characterized by physical symptoms, such as an
increased limp, occasional loss of balance and confused speech and thought.
Following such exacerbations, the lasting effect of his multiple sclerosis
would be worsened and would not get better His condition could be described
as progressive deterioration.
In his complaint and amended complaint, Petitioner sets forth seven enumerated
situations supportive of his position that he was the subject of disability
and age discrimination. Some of these reasons are duplicitous or overlapped
with others.
MEDICAL REPORT
Petitioner states that Sheriff Davis was not aware of Petitioner's condition.
After he was informed by Petitioner, the sheriff requested Petitioner to
get a physical report indicating what work he could and could not do. Petitioner
got such a report from his physician, Dr. H. C. Halberg (Exhibit 7) on February
5, 1985. Petitioner gave the report to the sheriff, who said....... it was
not worth the paper it was written on."
If that was the sheriff's statement in context, it certainly was not
diplomatic or sensitive. The Court has examined Exhibit 7. The impression
the Court gets in reading Exhibit 7 was that it was a letter from a friend
in behalf of a friend.
It reads like a letter of recommendation, highlighting the position urged
by Petitioner, such as his not wanting to wear a uniform at work and why.
It asserts that Petitioner has been a long time and valuable asset to the
department. It lists the kinds of things Petitioner wants to do and lists
the things the Petitioner does not want to do. Perhaps the letter did not
deserve the response given to it by the sheriff, but one can see its deficiencies
and how it really failed to give the sheriff the kind of information he
was seeking.
After the letter was rejected, it was agreed that Petitioner would obtain
a report from his original diagnosing doctor in Iowa City. Two such documents
were received by the sheriff, but by that time (March 22, 1085), Petitioner
was already on sick leave and never did return to work.
The Commission determined that this one incident was not so pervasive
as to alter conditions of employment and to create an intolerable working
environment. See Henson v. City of Dundee, 682 F.2d. at 904.
The medical report incident as decided by the Commission is supported
by the evidence in this case. Neither disability or age discrimination
has been proved.
CHANGE IN RANK
Two of Petitioner's complaints deal with questions raised concerning
his rank. On February 15,1985, the sheriff told Petitioner that his position
as captain was political and not pursuant to civil service classification.
On February 28,1985, Petitioner received a letter from the sheriff stating
that he was no longer a captain and was in fact a grade II deputy
sheriff. When correct information was received by the sheriff, he reinstated
Petitioner to the rank of captain.
There are two ways one can be a captain. An elected official has a right
to appoint his first deputy and name him as a captain. This is a "political
appointment" and is temporary. The position can be refilled by a new
sheriff.
The other way to obtain the rank of captain is through civil service
testing. This rank is not lost by the election of a new sheriff and is more
permanent in nature. The fact is that Petitioner had received the rank of
captain by this latter method, and his rank should not have been reduced
as it was.
The further fact is that the sheriff did check with both the Civil Service
Commission and with the Iowa Law Enforcement Academy and was erroneously
(and incorrectly) notified that there was no record of Petitioner's promotional
examinations.
There is no adequate proof that Petitioner was treated any differently
than would be a non-disabled employee or a younger employee. The sheriff
had a right to have a correct understanding of the rank of his employees.
When correctly advised of Petitioner's rank as captain and how he obtained
same, the rank was restored.
The change in rank incident and the way it was eventually handled by
the department were considered by the Commission and decided against the
Petitioner. It was determined that this claim of discrimination was unsupported
by the evidence in the case and that neither disability or age discrimination
have been proven.
UNIFORM USE
On February 28, 1985, Petitioner received a
written reprimand for his failure to wear a required uniform. Around February
4, 1985, the sheriff had a meeting with the employees. All employees,
with the exception of the investigator, would be required to wear the standard
uniform, consisting of forest green trousers, taupe colored shirts and required
badges and emblems.
After the meeting Petitioner continued to wear either civilian suits
or a class A uniform. The latter is a gold blazer, brown pants, brown shoes
and tie and a badge. There is no exposed gun as there is with the standard
uniform.
Apparently Petitioner had told the prior sheriff that his exposed gun
and holster presented a problem as his cane kept hitting the holster. This
reason was not communicated to Sheriff Davis.
Petitioner relies in part on a statement in Exhibit 7 (the aforementioned
letter from Petitioner's Dr. Hallberg). It states in part: "... has
uniform but prefers to wear plain clothes as he has served lots of papers,
and feels he can do this (wear a uniform), but feels civilian clothes would
not embarrass these persons." We will discuss the "notice serving
issue" later on.
This uniform requirement appears to be a reasonable across-the-board
requirement of the new sheriff. With the exception of the investigator,
he wanted his employees to be in a certain uniform. Just because Petitioner
did not want to "embarrass persons being served with papers" was
no excuse or justification for refusing to wear the prescribed uniform of
the day. He (Petitioner) made a judgmental decision that was not his to
make.
Petitioner was verbally reprimanded about the
uniform requirement on February 14, 1985. The next day, February 15, 1985,
he showed up for work in the class A uniform. He was sent home to get into
the proper uniform.
On October 28, 1985, Petitioner received a written reprimand in regards
to uniform use. The reprimand was justified. The sheriff had the correct
impression that the Petitioner wanted to do things his own way. It was a
battle of wills and the superior will was to prevail.
Nothing indicates that the Petitioner was treated
any differently than would be a person who was not disabled or who was a
younger employee.
The uniform incident was decided by the Commission is supported by the evidence
in this case. Neither disability or age discrimination has been proved.
SERVICE OF PAPERS
As stated, on February 28, 1985, Petitioner
received a written remand for his failure to properly serve papers. These
failures were in regards to procedures which were to be followed in regards
to how and when the papers were to be served.
Sheriff Davis testified to hearing complaints
from office personnel that Petitioner was not serving papers as required
by law. He would serve papers on a substitute person rather than personally
on the named individual, as he had been requested to do. There was an unacceptable
high number of errors in service, and that was in part the basis for the
reprimand.
The other complaint had to do with time and
manner of service. Davis made a change of procedures. He wanted the process
servers (like Petitioner) to go out and serve papers from 7 a.m. until 9
a.m. in the morning, then bring the written materials to the office staff
at about 9 a.m. He felt that the chance of successful service was better
early in the morning than at 9 a.m. or later when the party to be served
had left the house for work, etc. Call backs would be fewer. He asked Petitioner
to follow that practice and gave him papers to be served immediately. (It
was then about 7:30 a.m.) Petitioner did not leave the office until after
9 a.m. (which had been his practice before).
There was no evidence of other deputies failing to reasonably follow
the directions in the service of papers or of multiple errors on their part
in the service of papers. The complaints against the Petitioner and the
reprimand that followed were not directed at the Petitioner because of his
age or disability.
Any claim of age or disability discrimination concerning the paper serving
process and the reprimand in regards to same is not supported by the evidence
and has not been proven.
THE RETIREMENT ISSUE
Although not one of the seven particulars set forth in the initial complaint
(Exhibit 1), Respondent did issue a complaint in the amended complaint (Exhibit
2) in regards to the retirement issue. Petitioner alleged age discrimination
because the sheriff was urging him to rehire.
There is no denying that the sheriff did talk to Petitioner about his
retiring. He asked Petitioner if he had ever checked out disability retirement
possibilities with either social security or with IPERS. The sheriff offered
to do whatever he could to help the Petitioner get such retirement. Sheriff
Davis also testified that he was not trying to get rid of the Petitioner
but rather he was trying to help him get his early retirement. Petitioner
testified that he had made such inquiry and he was not eligible for such
early retirement.
Considering Petitioner's physical condition and its deteriorating nature,
the subject of disability retirement would not be unwarranted, and the offer
of assistance (if taken in context) would not support or be evidence of
age or disability discrimination. There is insufficient evidence to prove
the alleged age or disability discrimination claims.
MISCELLANEOUS ISSUES
Other issues were discussed in the Order which was adopted by the Commission
and which were not really enumerated in Petitioner's complaint or amended
complaint. His responsibility for reviewing Records of the Emergency Operations
Commission was discontinued. His duties were assigned to Deputy Straw. The
removal of such responsibilities was not done by the sheriff but rather
by the Board of Supervisors. There was no evidence to indicate that the
change in duties was a form of either disability or age discrimination,
and that alleged discrimination has not been proven.
Petitioner's jail responsibilities were also changed. They do not appear
to have been substantial in any regard. The new sheriff took over some of
these responsibilities because he had interest in becoming more familiar
with jail operations. Any claim of age or disability discrimination in that
regard has not been proven.
FAILURE TO ACCOMMODATE
A claim of disability discrimination based on
a failure on the part of the sheriff to accommodate was urged by Petitioner.
In its decision the Commission did not find a failure to accommodate
or any discrimination based on such a claim.
The fact is that the decision is silent in that regard, with the exception
of some statements of general laws contained in the Conclusions of Law in
paragraphs 15-24.
DECISION
In summary the Court determines and finds that the Petitioner has failed
to carry his burden and prove to the Court that the Commission in its decision
failed to satisfactorily and legally decide and deal with the issues before
it: that there was not sufficient evidence to support the decision when
the record was considered as a whole: or that the decision should be reversed,
modified or remanded per section 17A.19(8) of the Code.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Petition herein be
and same is hereby dismissed at Petitioner's costs.
Dated this 18th day of June, 1991.
A. M. CRITELLI
JUDGE, FIFTH JUDICIAL DISTRICT
Copy mailed or hand-delivered by the court to:
David H. Goldman
200 Liberty Building
418 Sixth Avenue
Des Moines, Iowa 50309
Rick Autry
Assistant Attorney General
Iowa Civil Rights Commission
211 East Maple, Second Floor
Des Moines, Iowa 50319
Iowa Civil Rights Commission
211 East Maple, Second Floor
Des Moines, Iowa 50319