Cl 72 42627



The trial of this matter was held before this Court. The plaintiff appeared with his attorneys, Dwight James and Frederick James, and the defendants appeared by their attorneys, Richard G. Langdon, Ross A. Walters, and John Stone. The Court, having read the file, briefs of the attorneys, and having heard testimony from witnesses, and having examined the exhibits, finds as follows:


1. The Plaintiff, hereinafter known as Niel, is 47 years old. He was the manager of the Defendant, Clark-Peterson Company, Inc., hereinafter known as Clark-Peterson. He had been an employee for 25 years and the manager of Clark- Peterson. In the fall of 1986 Niel's salary was approximately $41,000.00 not including fringe benefits.

2. The Plaintiff did not complete high school, However, he obtained his GED in 1958. He is a master and journeyman plumber. He has served on the city and state plumbing code boards, the city of Des Moines Plumbing Licensing Board, the Des Moines Heating Association Des Moines Water Works Committee and was president and vice president of the Federation of the Mechanical Contractors.

3. Clark-Peterson is a corporation. The stock is owned equally by the Defendants, Jack A. Clark and Gerald F. Clark. Gerald Clark preceded Plaintiff as the manager of the business. Prior to November 1986 Gerald Clark withdrew from active participation in the management of the company. Jack Clark was not active in the management of the company during the time Niel was an employee and manager.

4. In 1963 Niel was diagnosed as having diabetes. In 1975 he suffered injuries from an automobile accident limiting his ability to do physical labor. In 1986 he was temporarily disabled due to his diabetic condition. Each and every time following his hospitalization for treatment of diabetes, he returned to work. Even following a three-and-a-half-month hospitalization and recuperation for a broken leg in 1975, he returned to work.

5. While he was manager, Niel told Gerald Clark that he drank himself to sleep at night by drinking beer. Gerald Clark encouraged Niel to take Valium for his anxiety. Niel took tranquilizers, including Valium, several years prior to 1986. For approximately a year prior to his hospitalization in November of 1986, Niel went from drinking a half gallon of liquor a week to drinking two and a half gallons a week. In early November of 1986 he began having trouble making decisions at work and became distraught.

6. In mid-November of 1986 Plaintiff realized his problems were related to alcohol and called his friend, Bernard John Baker, Jr., a recovering alcoholic. Mr. Baker suggested to Niel that he enter an outpatient treatment program and not disclose the nature of his problem to his employer. Mr. Baker knew of the Defendant Gerald Clark's attitude toward people who drink alcohol and for this reason suggested the outpatient program.

7. On November 17, 1986, Niel called the Jerry Clark residence in the Ozarks from the company offices. Jerry was not there, and Niel talked to his wife Shirley. Niel told Shirley that he had an alcohol problem, was unable to make decisions, and needed Jerry to come back to Des Moines to run the business. Shirley denies that Niel told her that he had an alcohol problem, and she testified that Niel said he needed to get out of the business because of the problems he was having. Although this is not a material point of disagreement, the Court, having viewed the witnesses' testimony, finds that Niel's testimony in this regard is more credible.

8. Jerry Clark called Niel back at the office at approximately 9:15 a.m. He and Niel spoke for nearly an hour. The substance of this conversation is also in dispute. Niel testified that he told Jerry he had an alcohol problem and Jerry suggested he talk to Jim Mulford, an employee of Bell Brothers and a recovering alcoholic. Jerry denies this. He testified that Niel made no mention of alcohol, said that things were caving in on him, and asked that Jerry return to the business. Neither Jerry nor his wife testified that Niel said he quit.

9. On the afternoon of November 17, 1986, Niel and his wife saw Dr. Gray. In his deposition Dr. Gray stated that Niel told him he couldn't cope with his job and drinking and he was very fearful he was going to lose his job. He thought he would lose his job because his employer would not tolerate his drinking.

10. On the morning of November 19,1986, in the Clark-Peterson offices, there were conversations with Jim Mulford. He was asked to come to the offices by Niel and Jack Clark. Mulford, Jack, and Niel went to lunch. Mulford testified that Niel did not at any time state he was quitting his employment. After lunch Mulford left, and Jack suggested that Niel accompany him to Powell III. Jack testified that he was taking Niel to Powell III because Niel was thinking of suicide. On arrival at Powell III, Jack and Niel met with counselor Sharon Siegrist for an intake interview. Her intake form states that Niel was referred to by his boss. She testified that if there were an employment problem, she would have noted it in the interview notes in the hospital record. She also testified that Niel met the diagnostic criteria of being an alcoholic. Niel entered Powell III for treatment.

11. Niel was examined at Powell III on November 20, 1986, by Dr. Haugland. Stanley Haugland, M.D., is a specialist in alcoholism and addictive diseases and medical director of the alcoholism treatment program at Powell III, Iowa Methodist Medical Center. He diagnosed Niel as an alcoholic that would be involved in a lifetime of recovery. He said Niel would have been capable of returning to his employemnt following treatment. He stated that lawyers, judges, physicians, carpenters, and people from all backgrounds return to their employment following treatment for alcoholism and chemical dependency.

12. Gerald Clark told Niel's wife Rose and Niel's stepfather Vern Strain on Sunday, November 23, 1986, at Powell III that unless Niel stayed in Powell for the full course of treatment, he would not have a job when he was released.

13. On December 12,1986, Mary Warner, an alcoholism and chemical dependency counselor at Powell III, as a part of her routine process for patients facing discharge, contacted Gerald Clark to inquire about Plaintiff returning to work and to set up a three-way meeting with herself, Niel, and Gerald Clark. She was informed by Gerald Clark that he had already determined to fire Niel and that Niel had been replaced. He asked Warner to so advise Niel. She remembers the incident clearly because it was the only time a patient had been fired while in treatment at Powell. She had never before or after had to inform a patient he or she was fired. Gerald Clark called back a few days later to verify that she had passed on the message concerning the termination to Niel. She again requested Gerald Clark to tell Niel himself. Gerald Clark declined and told her the meeting would be too distressful for him.

14. On about December 15, 1986, at a meeting of the employees of Clark-Peterson, Gerald Clark told the employees that Niel had been discharged.

15. The Court finds that upon completion of his treatment at Powell III, Niel would have been capable of resuming his employment and it is likely that he would have been a far superior employee having successfully completed his treatment. He now participated in Alcoholics Anonymous and has remained free of Valium and alcohol since November 16,1986.

16. Following termination of his employment, Niel found employment in several areas. At the time of trial he was employed with Baker Mechanical Company earning $25,000 per year without the benefits of personal use of a pickup truck, medical insurance, disability insurance, and life insurance which he received as fringe benefits at Clark- Peterson.

17. Wayne Newkirk, Ph.D., and labor economist testified that Niel's loss of past and future wages and benefits reduced to present value would be $344,822. Dr. Newkirk said he expected someone in Niel's capacity to be earning in excess of $50,000 per year. There was no testimony that other employment opportunities are available to Plaintiff, and it is the finding of the Court that Niel would have lived out his work-life expectancy at Clark-Peterson as manager if he had not been terminated.

18. The Court finds that the defendants acting jointly and severally terminated Niel's employment because of his alcohol problem. Jerry and Jack Clark have denied that Niel told them he had a drinking problem. The Court finds this to be insignificant. Dr. Stanley Haugland, the medical director of Powell III, and Sharon Siegrist, a counselor at Powell III, testified that even if Niel had been asked about his excessive use of alcohol, a hallmark element of the disease of alcoholism is the denial by the individual that he has a drinking problem.

Niel was discharged because of his alcoholism. There is nothing in the record, other than a statement from John Losenisky, that Niel had not performed his job adequately. Mr. Losenisky was the person who relpaced Niel as manager of Clark-Peterson. The Court finds Niel was performing his job adequately.

19. The Jurisdictional requirements of the Iowa Civil Rights Act, Chapter 601 A of the Code of Iowa have been complied with. Niel is asking for, in addition to his lost wages and fringe benefits, damages for his mental anguish and emotional turmoil. Niel became distraught, isolated, and withdrawn after receiving the news that he had been terminated. He is asking for damages in addition to his loss of wages in the amount of $150,000.


Alcoholism is a medically diagnosable disease characterized by chronic, habitual, periodic consumption of alcohol beverages resulting in the substantial interference with an individual's social or economic functions in the community or the loss of powers of self-control with respect to the use of such beverages. Alcoholism is a protected disability under 601A.6 of the Code of Iowa. See Consolidated Freightways v. Cedar Rapids Civil Rights Commission, 366 N.W. 2d 522, 528 (Iowa 1985).

Plaintiff has established a prima facie case of discrimination, and the Defendants have not offered a nondiscriminatory reason for their conduct. The Defendants claim that Niel quit his employment voluntarily. However, the Court finds that the evidence does not support this claim. Niel has proven that "he suffered from a disability that did not prevent him from performing his job in a reasonable, competent and satisfactory manner and that the disability was a factor in (his) employer's decision to discharge him." Id. page 530.

He should be awarded damages for his lost wages and benefits as determined by Dr. Newkirk to be the amount of $344,822.00 Since the firing of Niel was done in concert by Jack and Gerald Clark as individuals and as stockholders, officers, and directors of Clark-Peterson Company, Inc., judgment should be ordered against all three defendants.


IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that the Plaintiff has judgment against all the Defendants jointly and severally in the amount of $344,822.00, plus statutory interest from the date of this order. The parties shall pay their own attorney fees, and the Defendants shall pay the costs of this action.

Dated this 22nd day of August, 1989.



Dwight James
Frederick James
630 Equitable Building
Des Moines, IA 50309


Richard G. Langdon
Ross A. Walters
1800 Financial Center
Des Moines, IA 50309

John H. Stone
1119 High Street
Des Moines, IA 50309


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