KATHRINE S. MARTIN, Complainant,

and

IOWA CIVIL RIGHTS COMMISSION,

vs.

NORTHEAST IOWA MENTAL HEALTH CENTER AND J. DES MCIVOR,

EXECUTIVE DIRECTOR, Respondents.

SUMMARY*

This matter came before the Iowa Civil Rights Commission on the Complaint, alleging discrimination in employment on the basis of disability, filed by Kathrine Martin against the Respondents Northeast Iowa Mental Health Center and J. Des McIvor.

Complainant Martin alleges that the Respondents replaced her in the position of substance abuse counselor because of a perceived physical disability, cancer. Through her complaint, she alleges that she was diagnosed with cancer on May 2, 1991. On May 16, 1991, she underwent surgery for the cancer. During the time of treatment and recuperation, she alleged Respondent McIvor was initially supportive of her. He informed her that full benefits would be paid through June 12, 1991 and instructed her to do "everything the doctors say until you can return." On August 2, 1991, she was informed during a telephone conversation with McIvor that someone else had been hired to do her job. When she asked why, he allegedly stated that it was "because of your cancer." He also allegedly stated, "In two months or two years, it (the cancer) could return." Her doctors had, however, given her full permission to return to work. McIvor did offer Complainant Martin a few hours of work per week with traveling and no benefits, which she found to be unacceptable.

A public hearing on this complaint was held on June 7-8, 1994 before the Honorable Donald W. Bohlken, Administrative Law Judge, at the City Council Chambers and the County Courthouse in Decorah, Iowa. The Respondents were represented by attorney Donald H. Gloe. The Iowa Civil Rights Commission was represented by Assistant Attorney General Teresa Baustian. The Complainant was represented by attorney David Stamp.

The Respondents submitted a trial brief on June 7, 1994. The Complainant's Brief was received on August 24, 1994. The Commission's Brief was received on August 25, 1994. The Respondents' Reply Brief was received on or about September 8, 1994.

Complainant Martin proved her allegation of discrimination in employment because of a perceived disability of recurring cancer. The complainant was terminated effective July 16, 1991 during a 16 week leave for the treatment of cancer. She was not informed of her termination until August 2, 1991 when she had completed her treatment and was attempting to make arrangements to return to work effective August 19, 1991, by which time she was fully recovered.

The Complainant established her case through direct evidence of discrimination. On August 2nd, when she asked why she had been replaced, Respondent McIvor's response was "how do I know but that you'll get cancer in two months or two years again?" McIvor had also indicated to another employee that he was afraid that Complainant's cancer would return. To another he had indicated he would not hire anymore older employees because the older they get, the sicker they get.

The Respondents' reasons for their action were shown to be pretexts for discrimination. Respondents argued that Complainant would not have been terminated if she had provided a return to work date. The time she would have been able to return to work would have been only two weeks after the starting date of her replacement. The Respondents, however, never asked Complainant for such a date despite their frequent communications with her. Complainant had also informed Respondents of her illness and provided information indicating her treatment would end by August 1st. Under these circumstances, if her current absence, and costs associated with it, were the only considerations in Respondent's decision-making process, it would be more rational to expect Respondent to contact her and ask for a return to work date prior to hiring a less productive new employee.

Respondents also argued that her failure to ask the board of directors for a leave of absence extending beyond six weeks was a factor in her termination. However, Respondents had already informed her that she had a paid leave of absence through June 24th and an unpaid leave of absence thereafter. The six week period was already exhausted before June 24, 1991.

Finally, Respondents argued that the revenue losses associated with the time she was absent played a role in the decision. There are several problems with the computations of and assumptions underlying these loss estimates. However, the major problem is that the evidence shows that only two weeks of the sixteen weeks worth of revenue losses during her absence were avoided by replacing her with a less productive new hire who did not begin until August 5th. Also, Respondents' admission that they would not have replaced her if they had known of her return date indicates that they were willing to bear those costs. The only reason they did not know of such a return date is their failure to ask. This failure tends to confirm what the direct evidence shows, i.e that Respondents were concerned not only about her present absence, but future recurrence of cancer.

Remedies awarded include $16,833.86 in back pay and benefits and $15,000.00 in compensatory damages for emotional distress.

* This summary is provided as an aid to understanding the decision. It is not part of the findings of fact and conclusions of law.