RONALD E. NICOL, Complainant,

VS.

BUCHANAN COUNTY SHERIFF'S DEPARTMENT and BUCHANAN COUNTY BOARD OF SUPERVISORS, Respondents.

FINDINGS OF FACT

1. The Complainant, Ronald E. Nicol, filed a verified complaint CP # 10-85-13693 with the Iowa Civil Rights Commission, on October 18, 1985, alleging violation of Iowa Code section 601A.6 which prohibits discrimination in employment on the basis of disability. (Complaint, Tr. at 224-25). The complaint was subsequently amended on October 13,1986 to allege age discrimination in employment. (Amended Complaint, Tr. at 224-25). The last date of incident stated in the complaint is September 9, 1985. Official Notice is taken of the fact that there are thirty- nine days between September 9, 1985 and October 18, 1985. Fairness to the parties does not require they be given an opportunity to contest this fact.

2. The complaint was investigated. After probable cause was found, conciliation was attempted and failed. (Notice of Hearing; Tr. at 225). Notice of Hearing was issued on March 15, 1988. An order providing for a continuance until a new Administrative Law Judge was assigned to hear the case was issued on September 7, 1988. The final hearing date was set by an order dated March 29, 1989.

Background of Complainant Nicol:

3. As of the date of the hearing, August 10, 1989, Complaint Nicol was 55 years old. (Tr. at 6). Complainant began his employment as a deputy with the Buchanan County Sheriff's Department in 1972. (Tr. at 7). Prior to 1980, he did civil work, supervised records, and some patrol. (Tr. at 13). By the fall of 1984, he was doing the majority of the civil work, supervising records, some limited jail responsibilities and no routine patrol work. The major part of his work by then was civil work. (Tr. at 13-15, 42-43).

4. In 1980, Complainant Nicol was diagnosed as having multiple sclerosis, a neurological disorder. (Cp. Ex. 5; Tr. at 10-1 1, 124). As of March 22, 1985, the disease caused a limp which limited him to walking 1/2 to 1 block at a time. He had trouble climbing stairs and required an arm rail at times to accomplish that action. He wore a foot drop brace. He could not perform strenuous activities. (Cp. Ex. 6, 7). Civil work required that the Complainant walk from his car and, occasionally, to climb stairs. (Tr. at 9). By March 1985, Complainant had requested that Deputy Hansel to do the stair climbing for him. Deputy Hansel was willing
to cooperate with this proposal. (Tr. at 9).

5. During the course of his multiple sclerosis, the Complainant has sustained exacerbations of the disease which are events characterized by physical symptoms such as an increased limp, increased loss of balance, and confused speech and thought. (Tr. at 11). Once an exacerbation has occurred, various effects of the multiple sclerosis will have worsened and will not get better. (Tr. at 12, 78-79). These exacerbations may be caused by stress.(Cp. Ex. 6; Tr. at 1 1).

6. In March of 1985, the Complainant had an exacerbation after answering two accident calls in one day. (Tr. at 12, 68-70). Within three days of that incident, he went on sick leave and, subsequently, on vacation leave through September of 1985. (R. Ex. C, D; Tr. at 15-16, 68- 70). Effective September 10, 1985, Complainant resigned from his position as deputy sheriff as part of a settlement of appeals filed by the Complainant with the Civil Service Commission in response to letters issued by Sheriff Leonard Davis in February 1985. One of these letters was a reprimand and one indicated that the Complainant's rank was being reduced from Captain to Deputy. (C. Ex. 1, 2; R. Ex. C).

7. In return for the resignation, Buchanan County withdrew all letters and reprimands which were the subject of the appeal and confirmed that the Complainant's rank was that of Captain. The County also paid, to the Complainant, his attorneys fees relating to those appeals and "[a] sum equal to Nicol's unpaid accrued vacation days and unpaid accrued sick-pay benefits which would have accrued if Nicol were regularly employed and working up to the effective date of the resignation of Nicol." In addition, the County agreed to provide the Complainant a neutral reference in response to inquiries from prospective employers. This agreement reserved Complainant Nicol's right to proceed with a complaint before this Commission. (R. Ex. C).

Background of Buchanan County Sheriff's Department:

8. In 1984 and 1985, there were a total of eight deputies, including Ronald Nicol, with the Buchanan County Sheriff's Department. (Tr. at 95, 186). There is no evidence in the record indicating the ages of the deputies other than Nicol. Duties of sheriff's deputies in late 1984 and 1985 included patrol work, criminal investigation work and civil work. (Tr. at 7, 94-95). At one time, deputies handled the jailing duties, but these had been essentially taken over by jailers by 1985. (Tr. at 95, 213).

9. General patrol duties involved crime prevention patrol of the county and several communities which contracted with the department for law enforcement services. (Tr. at 94-95). Criminal investigation involves responding to citizen complaints of crimes by ascertaining who committed the crimes and bringing those persons into custody. (Tr. at 95). Civil work is concerned with service of process on persons. This would include service of original notices, petitions for dissolution of marriage, injunctions, and attachments of property. (Tr. at 8).

10. Effective November 14, 1984, Leonard Davis became Sheriff, by election, of Buchannan County. He was still sheriff as of the date of the hearing. (Tr. at 138). Complainant Nicol's allegations of discrimination are entirely concerned with events which occurred or were alleged to have occurred during Nicol's employment under Sheriff Davis. (Complaint; Amended Complaint; Tr. at 53).

Statements From Complainant's Physicians:

11. When Leonard Davis became Sheriff, he was not aware that the Complainant had multiple sclerosis. (Tr. at 139- 40). He first became aware of the Complainant's illness when Ron Nicol informed him, shortly after his election, that he had the disease. (Tr. at 140). At some time prior to February 4, 1985, Sheriff Davis did request that the Complainant obtain a physician's report stating what he could or could not expect from Complainant Nicol in light of his disease. (Cp. Ex. 7; R. Ex. A; Tr. at 23, 140-41, 189). Sheriff Davis made this request because Complainant Nicol had told him that there were various job functions that he could not do and the Sheriff wanted a doctor's statement verifying these limitations. (R. Ex. A; Tr. at 53-55, 184).

12. The complainant did obtain a report, dated February 5, 1985, from his physician, Dr. Hallberg. (Cp. Ex. 7; Tr. at 24, 162). The report set forth a listing of tasks which the Complainant could do and tasks which he could not do. (Cp. Ex. 7). Sheriff Davis told Mr. Nicol that the report was not worth the paper it was written on. (Tr. at 24, 162). Although Davis did not inform Nicol concerning why he considered the report worthless, he asserted that he felt this way because:

the letter basically states this is what Ron feels he could do and what Ron feels he cannot do, and that was not what I was asking for. I was asking for a medical report from a doctor stating what I could expect from this man in a law enforcement field.

(Tr. at l62-63). Sheriff Davis testified he did not believe the letter stated what the physician felt Nicol could do. (Tr. at 189).

13. Although Dr. Hallberg's letter makes reference to what Complainant Nicol feels he can or cannot do, it specifically indicates that it was the common belief of both the physician and Nicol that he could or could not perform the various tasks set forth. Although Dr. Hallberg relied on information provided by his patient in making his evaluation, the letter is a statement of Dr. Hallberg's opinion on what Complainant can and cannot do in the law enforcement field. (Cp. Ex. 7).

14. After Dr. Hallberg's report was rejected, the Complainant suggested that he obtain a statement from University Hospitals in Iowa City, where his condition was originally diagnosed. (Tr. at 24). The Sheriff agreed with this suggestion. (Tr. at 24). Two documents from the University of Iowa Hospitals Department of Neurology, a letter addressed to Mr. Nicol, and a report addressed to Dr. Hallberg, both dated March 22, 1985, were eventually received by Sheriff Davis. (Cp. Ex. 5, 6; Tr. at 163). By the time these documents were received, the Complainant had begun his sick leave and was no longer at work. (Tr. at 163).

15. There is no evidence in the record indicating that either the request for doctor's statements verifying Complainant's assertions concerning his limitations or the response to the first statement were due to Complainant's age.

Removal of Complainant's Rank As Captain:

16. When Sheriff Davis took office, he was informed that Complainant's rank with the department was captain and that Complainant was chief deputy under the prior sheriff. (Cp. Ex. 2). As the new sheriff, Davis had the right to appoint his own chief deputy, who would then receive the captain rank as a "political appointment." (Tr. at 153). Sheriff Davis chose to appoint Jack Straw to the chief deputy position. (Tr. at 155).

17. A rank obtained through "political appointment" is temporary, i.e. if a new sheriff selects a different chief deputy, the former chief deputy loses his captain rank. (Tr. at 155). Another way in which the rank of captain can be obtained is through Civil Service testing administered by the Iowa Law Enforcement Academy. (Cp. Ex. 2; Tr. at 18-19, 154). Unlike a "political appointment," a rank of captain obtained by a chief deputy through civil service testing does not end when a different chief deputy is selected. (Tr. at 154-56).

18. Once Jack Straw was made Chief Deputy, two of eight deputies were captains. Sheriff Davis believed this represented a situation where there were too many leaders and not enough followers. (Tr. at 153). He asked Complainant Nicol whether he had obtained his captain rank through a Civil Service examination. (Tr. at 154). Mr. Nicol replied that he had. (Tr. at 154). Sheriff Davis checked with the Civil Service Commission and the Iowa Law Enforcement Academy and was informed, erroneously, that there was no record of Complainant Nicol's promotional examinations. (Cp. Ex. 2; Tr. at 154). In fact, Nicol had taken and passed the supervisory promotional examination which gave him the rank of captain. (Tr. at 21, 96).

19. It appears that the Civil Service Commission would have had no record of the examinations because such exams are returned to the Academy. (Cp. Ex. 3). The Academy was able to provide copies of the examinations when the Complainant requested them by letter dated March 6, 1985. (Cp. Ex. 3; Tr. at 19-20). It appears that their informing Sheriff Davis that there was no record was human error on their part.

20. Based on the information available to him, Sheriff Davis concluded that Ron Nicol's appointment as captain was a "political appointment." (Tr. at 155). Therefore, on February 22, 1985, he issued a letter, to Complainant Nicol clarifying his civil service status and indicating his rank was now Grade 11 Deputy Sheriff. (Cp. Ex. 2; Tr. at 155). This reclassification was not a demotion, but, if it had stayed in effect, would have impacted his salary by lowering it from $18,900 per year to $17,800 per year. (Cp. Ex. 2).

21. Once Complainant Nicol received this letter, he obtained the test results from the Academy and filed a Civil Service Commission appeal of the letter. (Cp. Ex. 3; Tr. at 34). Within a week of the appeal being filed, Sheriff Davis reinstated the Complainant to the captain rank pending the outcome of the appeal. (Tr. at 156). The appeal was still pending at the time Complainant resigned. (R. Ex. C).

22. There is no evidence in the record indicating that Sheriff Davis treated the Complainant any differently in regard to his handling of the clarification of rank then he would have any non-disabled or younger deputy, if there had been one, who was not the chief deputy and who had the rank of captain. Only proximity in time to the request he not be required to perform certain duties links the Complainant's reclassification and his multiple sclerosis.

23. At some time prior to February 4, 1985, Sheriff Davis held a meeting for the deputies. (R. Ex. A; Tr. at 142). Ron Nicol and the other deputies were present at this meeting when Sheriff Davis informed them that all deputies, with the exception of the investigator, should wear the standard uniform consisting of forest green trousers, taupe colored shirts, and required badges and emblems. (R. Ex. A; Tr. at 141-42).

24. Complainant Nicol and other deputies had been out of uniform prior to this meeting. (Tr. at 142). The Complainant had worn civilian suits to work prior to this meeting, while other deputies had worn uniform shirts and blue jeans. (Tr. at 58, 142-43). Prior to this meeting, Sheriff Davis had not mentioned uniforms to the Complainant. (Tr. at 142). There is no evidence in the record to indicate whether or not Sheriff Davis mentioned uniforms to other deputies prior to the meeting.

25. After the meeting, the Complainant continued to wear either civilian suits or what has been denominated a Class "A" uniform while on duty. (Tr. at 66, 144). A Class "A" uniform consists of a gold blazer, brown pants, brown shoes, brown tie and a hand-engraved badge. (Tr. at 58). An exposed gun is not worn with this uniform. (Tr. at 119-20). A Class "A" uniform is accepted as civilian attire at seminars and similar functions, but is not the uniform specified by Sheriff Davis at the meeting. (Tr. at 143-44). There is no evidence in the record that the other deputies, who were required to wear full uniform, were out of uniform after the meeting.

26. At some point after the meeting, but prior to February 4,1985, Complainant Nicol told Sheriff Davis that he had a physical problem with wearing a uniform. (R. Ex. A). The Complainant had told the prior sheriff, Joel Dryer, that he had difficulty wearing the standard uniform because, when walking with a cane, he kept hitting the exposed gun belt (holster) with the cane. (Tr. at 119). He had to use the cane to assist himself in walking due to the multiple sclerosis. (Tr. at 119). The record, however, does not reveal what specific physical problem the Complainant told Sheriff Davis that he had with wearing a uniform.

27. It was at about this time that the sheriff told the Complainant to get the doctor's report on what he could and could not do. (R. Ex. A; Tr. at 141). When the report from Dr. Hallberg did come in, however, the only mention of uniforms was that Mr. Nicol "has uniforms but prefers to wear plain clothes as he has served lots of papers, and feels he can do this [wear uniforms], but feels civilian clothes would not embarrass these persons." (Cp. Ex. 7). This language does not demonstrate any relationship between the Complainant's desire to wear plain clothes and his multiple sclerosis. Furthermore, the Complainant testified that wearing a uniform has "nothing to do with [MS] [t]hat's . . . the job I had at the time." (Tr. at 72). In considering this testimony, however, it should be remembered that Complainant was never asked nor testified about any problems that would result from wearing an exposed gunbelt.

28. On February 14, 1985, which was after Dr. Hallberg's letter was received, Complainant Nicol was verbally reminded to wear a uniform and not a civilian suit. (Tr. at 56, 145). On February 15, 1985, the Complainant appeared in a Class "A" uniform and was told to go home and get into uniform as specified. (Complaint; Cp. Ex. 1; Tr. at 145). He did so. (Tr. at 56, 145). The complainant subsequently received a written reprimand, dated February 28, 1985, which, in part, warned him to wear the uniform specified by Sheriff Davis. (Cp. Ex. 1).

29. There is no evidence in the record demonstrating different treatment of the Complainant on the basis of his age or multiple sclerosis in regard to the reprimand, or other warnings or reminders concerning uniforms. There is not sufficient evidence in the record to demonstrate that Sheriff Davis was aware of any specific problem concerning the uniform requirement and the Complainant's multiple sclerosis.