KATHRINE S. MARTIN, Complainant,

and

IOWA CIVIL RIGHTS COMMISSION,

vs.

NORTHEAST IOWA MENTAL HEALTH CENTER AND J. DES MCIVOR, EXECUTIVE DIRECTOR. Respondents.

I. JURISDICTIONAL AND PROCEDURAL FACTS:

A. Stipulated Facts:

1. The parties stipulated to certain procedural and jurisdictional facts:

8. The Complainant, Kathrine S. Martin, filed a verified complaint with the Iowa Civil Rights Commission on September 20, 1991, alleging a violation of Iowa Code Chapter 601A (renumbered as Chapter 216 in the 1993 Iowa Code) by discrimination on the basis of age, sex, and perceived physical disability which filing was within the statute of limitations.

9. A true copy of the verified complaint was promptly served by certified mail upon the Respondents on September 26, 1991.

10. The investigation of the complaint was completed, with the investigator recommending a finding of No Probable Cause with respect to the allegations of age and sex discrimination and probable cause as to the allegation of discrimination on the basis of disability discrimination.

11. Administrative Law Judge Don Grove determined on October 26, 1992, that Probable Cause existed to credit the allegations of disability discrimination.

12. The Respondents were notified of the determination on October 28, 1992, by certified letters No. 32,544 and No.. 32,545.

13. The Executive Director of the Commission, Don Grove, recommended bypassing further conciliation on January 3, 1994; Sally O'Donnell, a Commissioner of the Iowa Civil Rights Commission, made a determination on January 11, 1994, to bypass conciliation and proceed to public hearing. This determination is evidenced by a Report to the Commissioner.

14. The Respondents were notified that conciliation had failed on January 27, 1994.

(Stipulation of Facts).

B. Subject Matter Jurisdiction:

2. The complaint allegation which was the subject of this hearing was discrimination in employment on the basis of "perceived physical disability." (Stip. No. 8; Notice of Hearing). Specifically, Complainant alleges that the Respondents replaced her in the position of substance abuse counselor because of a perceived physical disability, cancer. This is a sufficient allegation to bring the complaint within the subject matter jurisdiction of the Commission.

C. Timeliness:

3. The parties have stipulated that the complaint was timely filed. (Stip. No. 8).

D. Jurisdictional Prerequisites:

4. The parties have stipulated that the complaint was investigated, that probable cause was found, that the Respondent was notified that conciliation had failed, and that the Executive Director and a Commissioner determined to bypass further conciliation and proceed to public hearing. (Stip. Nos. 10-14). The Respondent's objections to conciliation procedures followed in this case have been overruled. Notice of Hearing was issued on March 11, 1994. (Notice of hearing).

II. BACKGROUND:

A. Background of Complainant:

5. The Complainant, Katherine Martin was hired by Respondent Northeast Iowa Mental Health Center (NEIMHC) as a full time substance abuse counselor effective March 12, 1990. (CP. EX. 1; R. EX. 9; Tr. at 13). (Exhibits marked "plaintiff's exhibit" or "petitioner's exhibit" or "exhibit" are referred to here as "CP. EX." for "complainant's exhibit". All respondent's exhibits are so marked). Her duties in that position involved evaluating clients, teen education, chemical dependency group, adult group, individual counseling sessions, and writing progress notes and other necessary paperwork. (Tr. at 16). She mainly worked out of the Oelwein office of NEIMHC. (Tr. at 16-17).

6. On April 25, 1991, the Complainant had a biopsy done. (Tr. at 17-18). On May 1, 1991 she learned that she had cancer. (Tr. at 18). The tests showed that she had cancer of the floor of her mouth. (Dr. Vega deposition, hereinafter "Vega dep." at 5; CP EX. 2).

7. The Complainant had taken some time off work for the biopsy. (Tr. at 21-22). Therefore, her last full day of work before her cancer surgery was April 24, 1991. (Stip. No. 4).

8. On May 9, 1991 the Complainant underwent outpatient surgery. (CP. EX 2; Tr. at 22-23). This surgery involved using various apparatus to visually examine the larynx, the esophagus, and bronchial tubes of the lungs. Multiple biopsies of the floor of the mouth were also taken. (CP. EX. 2). On May 16, 1991, the Complainant underwent inpatient surgery. (CP. EX. 2; Tr. at 23). This was described as "a floor of mouth resection and bilateral supraomohyoid neck dissections." (CP. EX. 2). "Resection" refers to the "excision of a segment or a part." Stedman's Illustrated Medical Dictionary 1220 (5th Unabridged Lawyers Ed. 1982). "Dissection" refers to the act, in an operation of "separat[ing] different structures along natural lines by dividing the connective tissue framework." Id. at 415. The surgery was serious enough that, for fourteen days in the hospital, Complainant Martin was not able to speak due to the insertion of a "trach tube." (CP. EX. # 1; Tr. at 31). On May 30, 1991, Complainant was released from the hospital. (Tr. at 27).

9. After a healing period, for her surgery, Complainant Martin began radiation therapy on June 14, 1991. This consisted of repeated treatments of 45 seconds of radiation to the very front of Complainant's face, mouth and neck and an additional 30 seconds on both sides. This treatment burns out both healthy and cancerous tissue resulting in a significant amount of pain and other adverse reactions to the treatment. (CP. EX. 2; Tr. at 28). This six and one-half week treatment was undertaken because she had a residual tumor at the floor of the mouth and at one lymph node. (Vega dep. at 6). Because of her difficulty in tolerating the treatment, it was interrupted, beginning July 5th, for five days to allow her mouth to heal and then resumed. Her radiation treatment ended on July 30, 1991. (Vega dep. at 7, 8; CP. EX. 2; Tr. at 28). A person undergoing this type of treatment would not be able to engage in their usual work. (Vega dep. at 6). Complainant was unable to work from April 29, 1991 through August 19, 1991, at which time she was given a complete release to return to work from her treating physicians. (Stip. No. 4). Official notice is taken that this period extended for a total of sixteen (16) weeks. Fairness to the parties does not require that they be given the opportunity to contest this fact.

10. Complainant Martin's sick leave and vacation benefit days were exhausted by noon on May 29, 1991. (R. EX. # 10; Tr. at 180, 188-89). J. Des McIvor decided to exercise his prerogative as Executive Director and extend Complainant's benefits and salary until June 24, 1991. (CP. EX. 1, 6; Tr. at 99-100, 166-68, 276-77, 339). This action is consistent with Complainant's admission in her complaint that the Respondents were initially supportive of her. (Notice of Hearing). She was also informed on June 5th that, after June 24, 1991, she would be on a leave of absence without pay, but NEIMHC would pay one half of her single medical policy. (CP. EX. 1).

11. On August 2, 1991, Complainant Martin telephoned J. Des McIvor, her supervisor and executive Director of NEIMHC in order to confirm a meeting scheduled for August 12, 1991 to discuss her return to work. (Tr. at 44-45, 334, 336). It was during this conversation that Mr. McIvor first informed her that she may not have her old job to return to and that he had hired someone else. (Tr. at 45-46). At the meeting on August 12th, Complainant Martin was informed by McIvor that "she has no job at the current time." (CP. EX. # 1-JDM dictation of 8/13/91). She was also offered three alternatives by McIvor: (1) Unemployment insurance, (2) Disability insurance, and (3) Part-time employment wherein, at least initially, she could only be assured of employment at the rate of about four hours per week with no benefits such as insurance. (CP. EX. # 1-JDM dictation of 8/13/91; Tr. at 49-51, 104, 107, 297, 330-331, 352). There are other aspects of the August 2nd and 12th conversations which will be discussed later. The Complainant elected to file for unemployment insurance as she could not survive on four hours per week of employment and was not eligible for disability insurance, as she was not actually disabled. (CP. EX. 1; Tr. at 49-50, 52). She filed on or about August 18, 1991. Her unemployment insurance was not contested by NEIMHC. (CP. EX. 1).

12. "The Complainant, Kathrine S. Martin, was rehired by the Respondent, Northeast Iowa Mental Health Center, on August 25, 1992, as a substance abuse counselor. She is still employed in that capacity and has no disabilities which interfere with her performance of the work." (Stip. No. 1).

B. Background of Respondents:

13. "The Northeast Iowa Mental Health Center is a private, non-profit community mental health center organized specifically for the purpose of providing outpatient mental health and substance abuse services to a defined catchment area." (R. EX. 16, 17). In 1991, this area included seven counties in northeast Iowa. (R. EX. 16, 17). The main office is in Decorah with a branch office in Oelwein. (R. EX. 17). The NEIMHC has an elected policy making board of directors composed of members from the participating counties. (Tr. at 216). The board meets annually. (Tr. at 217).

14. The NEIMHC administers both a mental health component and a substance abuse component. The two programs are funded differently and have different standards. (Tr. at 212).

15. The duties of a substance abuse counselor begin with doing intake assessments of clients. This is an assessment of the client's social history, substance abuse history, legal history, psychiatric history, health history, and financial history. (Tr. at 230). The counselor also is involved in individual and group counseling. (Tr. at 232). Approximately 60 per cent of a counselor's time is spent in direct patient contact activities such as assessment and counseling. The remaining 40 per cent of their time is spent on such activities as filling out paperwork, conferring with probation officers and meeting the needs of referral sources. (Tr. at 231).

16. J. Desmond McIvor has been executive director of the Northeast Iowa Mental Health Center since 1967. (Tr. at 208). Mr. McIvor also practices his profession as a psychiatric social worker who sees patients. (Tr. at 210). It is his responsibility to hire and discharge employees at NEIMHC. There are, however, limitations on his authority to discharge non-probationary employees which are described more fully below. (CP. EX. # 6; Tr. at 271).

17. Under the personnel manual, professional staff employees are under a probationary period for the first six months. Professional staff employees "may be discharged during the six (6) . . . month probationary period for any cause deemed worthy by the Executive Director. The grievance process is not available to employees on probation." (CP. EX. # 6; Tr. at 310).

18. Pertinent personnel manual provisions governing the discharge of full time staff who are no longer probationary employees state:

Full time staff who have passed their probationary period and for justifiable reasons are no longer able to maintain a satisfactory evaluation of job performance relating to attitude, dependability, quality of work, quantity of work, job knowledge, or insubordination will be approached by their immediate supervisor, whether it be the Executive Director or the Assistant to the Director, and informed of their poor performance in writing. Part of this communication will indicate that another evaluation will be made. This will be documented in memo form and placed in the employee's personnel folder.

If the performance continues to be poor, the employee can be asked to resign by the Assistant to the Director or the Executive Director. If the employee refuses to resign, the Executive Director or the Assistant to the Director is to complete a written evaluation that is to be shared with the employee and sent to the Personnel Committee of the Board with recommendations for the employee to be terminated under the rules and regulations described previously in the personnel policies. The employee may then request a hearing with the Personal Committee or, if necessary, with the full Board.

(CP. EX. # 6).

19. Pertinent leave provisions provide:

XII. VACATIONS

. . .

Center Absence Clause

A Center employee shall not be absent from work longer than six (6) consecutive weeks unless approved by the Board of Directors in advance. No combination of holidays, vacation, leaves or interpretation of any other personnel policy items, or past Center policy items may be used to exceed the six (6) consecutive week restriction unless approved by the Board of Directors. The only exception is the Maternity Leave policy. (Section XIV).

XIII. SICK LEAVE

Sick leave with full pay is allowed to all full-time employees when they are incapacitated for duty due to illness or injury. Sick leave is allowed on the basis of one (1) working day per mouth or twelve (12) per year of service. Sick leave cannot be taken until one month of continued service is completed.

Employees shall be allowed to accumulate a total of twenty (20) days of sick leave. Any accumulated sick leave in excess of 20 days shall accumulate as "permanent disability" leave up to a total of seventy (70) working days. Any accumulated sick leave beyond the 20 working days and 70 permanent disability days shall be forfeited.

Permanent Disability

In the event an employee is found to be permanently disabled, as diagnosed by a physician, the employee shall be paid during the duration of his/her accumulated permanent disability to the extent of his/her accumulated permanent disability leave to a maximum of 70 days as described above.

For the purpose of this policy, permanent disability means that because of injury or sickness, the employee is completely prevented from engaging in any occupation for which he/she is suited by education, training, or experience. The employee must be under a physician's care during this time.

Additional Guidelines

In case of absence due to illness in excess of three (3) working days, evidence of medical treatment may be required before a return to work is authorized or before payment of such absence is authorized.

In cases of continued or repeated periodic absence due to illness, the Executive Director may require evidence of professional care and treatment.

In cases where the duration of illness exceeds the allotted time for leave, further leave may be granted by the Executive Director.

It is the employee's responsibility to report his/her absence due to illness as soon as possible. Unless otherwise directed, the employee shall notify his/her immediate supervisor.

. . .

XV. ABSENCE FROM WORK WITHOUT PAY

Leaves of absence are not encouraged by the Center because of problems arising regarding adequate coverage during periods when essential personnel are absent. Under unusual circumstances, however, approval may be given by the Executive Director for such absences. Employees desiring leaves of absence should make application as far in advance of the time desired as possible in order to provide adequate time for administrative consideration. Vacation and sick leave do not accrue during the day or days of leaves of absence without pay.

(CP. EX. # 6)(emphasis added).

20. During the course of Complainant Martin's absence, the NEIMHC hired a new substance abuse counselor, Allen Ekholm, for the Oelwein office. Mr. Ekholm began work on August 5, 1991. (CP. EX. 3; Tr. at 192-93, 201, 272, 288). The offer of employment was extended to him by a letter from J. Des. McIvor dated July 10, 1991. It was accepted by his signing and returning a copy of the letter on July 12, 1991. The letter was received by NEIMHC on July 16, 1991. (CP. EX. 3; Tr. at 193). Mr. Ekholm had interviewed with NEIMHC over a two or three month period of time beginning in May 1991, after responding to an advertisement placed by McIvor on May 6th. (CP. EX. 5; Tr. at 192, 271-72). When McIvor sent Mr. Ekholm the letter of July 10th, he knew he was hiring Ekholm to replace Complainant Martin. (Tr. at 288, 329).

Findings of fact continued