RONALD E. NICOL, Complainant,
VS.
BUCHANAN COUNTY SHERIFF'S DEPARTMENT and BUCHANAN COUNTY BOARD OF SUPERVISORS,
Respondents.
Reprimand of Complainant for Improper Service of Papers:
30. The February 28th reprimand was issued because Sheriff Davis had
gotten the impression, based on the actions of the Complainant in regard
to uniforms and in regard to his failure to serve papers at a designated
time, which is discussed below, that the Complainant wanted to do things
his own way and not abide by the sheriff's rulings. (Tr. at 152). In addition
to the uniform issue, the February 28th letter also disciplined the Complainant
in regard to two matters involving improper service of papers. (Cp. Ex.
1). The first involves the Complainant's failure to follow proper procedure
in the service of legal notices. The second involves the Complainant's failure
to follow the directions of Sheriff Davis to leave the office at 7:30 a.m.,
serve what papers he could, and return by 9:00 a.m. to hand the returns
of the papers served to the secretary. (Cp. Ex. 1).
Improper Procedure:
31. Sheriff Davis became aware through reports by office personnel that
Complainant Nicol had made errors, primarily making substituted service
of legal notices, i.e. service upon a person other than the one to whom
the notice was addressed, when service directly upon the person to whom
the notice was addressed was required by law. (Cp. Ex. 1; Tr. at 17879).
The cover sheet with the paper to be served would often indicate that service
directly upon the person was to be made and the Complainant would sometimes
fail to read the cover sheet and follow these directions. (Tr. at 63, 87,
89, 117, 145-46, 179).
32. There is no evidence in the record indicating that Sheriff Davis
was aware of similar errors by other deputies. There is no evidence in the
record linking the reprimand for following improper procedure to the Complainant's
age or multiple sclerosis.
Failure to Attempt Service and Return by 9:00 A.M.:
33. After Sheriff Davis began his term in office, he decided to change
some policies and procedures of the department. (Tr. at 147). Through personally
serving some papers, he discovered that, if he went out at 7:00 a.m., he
could serve people prior to their leaving for work and be back at the office
by 9:00 a.m. (Tr. at 147-48). This procedure was not followed prior to his
taking office. (Tr. at 180). Under the former procedure, service might not
be attempted until after 9:00 a.m. and the deputy making service might not
return until some time between 12:00 noon and 2:00 p.m. (Tr. at 147-48).
34. The advantages of this new procedure were twofold. First, it would
reduce costs of service as it was not necessary to attempt service a second
time. (Tr. at 148-49). Second, under the former system, the secretary might
have nothing to do, except work left over from the day before, from the
time she came in at 8:00 a.m. until the deputy came in with the receipts
from persons served. (Tr. at 147).
35. On December 19, 1984, Sheriff Davis came in and sorted the papers
to be served into two piles, one for service within the City of Independence
and one for the outlying areas of the county. (Tr. at 14950). The Complainant
came in at 7:30 a.m., elected to serve papers within the City, and was directed
to begin serving them immediately, serve as many as he could, and return
by 9:00 a.m. (Tr. at 149-50). Deputy Hansel was given the papers for the
outlying areas of the county and returned, after serving most of them, shortly
after 9:00 a.m. (Tr. at 151). The Complainant had not left the office to
begin serving papers until after 9:00 a.m. (Tr. at 151). The Complainant
does not recall this incident but acknowledged it was possible. (Tr. at
63-64).
36. There is no evidence in the record of similar failure by other deputies
to serve papers in the time and manner directed by the Sheriff. There is
no evidence in the record linking the reprimand, for this failure to serve
papers at the time and in the manner directed by the Sheriff on December
19, 1984, to the Complainant's age or multiple sclerosis.
Sheriff Davis Statement to the Complainant Concerning Retirement:
37. At some time prior to Complainant's going on sick leave, during a
verbal reprimand of the Complainant for a reason not reflected in the record,
the Complainant's multiple sclerosis and the problems it caused him came
up for discussion. (Tr. at 165-66, 184, 189). During the course of that
discussion, the sheriff asked the Complainant if he had ever checked with
Social Security or the Iowa Public Employees Retirement System about a disability
retirement. (Tr. at 165). The Complainant replied that he had checked and
was not eligible. (Tr. at 165). Sheriff Davis stated he would help the Complainant
out, i.e. to get a disability retirement if he wanted one. (Tr. at 30, 165).
The sheriff's action was taken in order to help the Complainant obtain an
early retirement if he wanted one and not to pressure the Complainant to
resign. (Tr. at 165).
Removal of Complainant's Responsibility for Reviewing Records of the Emergency
Operations Commission:
38. The Emergency Operations Commission is an entity which maintains
the combined records of the Independence Police Department and the Buchanan
County Sheriff's Department. (Tr. at 159). These records were reports of
investigations of criminal offenses. (Tr. at 45). The Complainant read these
reports, initialed them and signed the requests for vacation and other time
off made by Mrs. Higgins, the secretary who handled these records. Only
one employee would have this duty at any given time. (Tr. at 15, 44, 160).
This duty was not a major part of the Complainant's job. (Tr. at 44). Prior
to going on sick leave, Mr. Nicol was removed from this duty and replaced
by Chief Deputy Jack Straw. (Tr. at 161).
39. During the course of the hearing, the issue arose of whether the
removal of this responsibility was due to Complainant's age or multiple
sclerosis. Complainant Nicol's removal from this duty was made by the Board
of Supervisors as part of a routine change of personnel. (Tr. at 161-62).
There is no evidence in the record to indicate that Sheriff Davis had any
role in this removal other than to inform Complainant Nicol of it. (Tr.
at 18, 60, 161). There is no evidence in the record linking the removal
of this duty to the Complainant's age or multiple sclerosis.
Removal of Complainant's Jail Responsibilities:
40. Under the prior sheriff, the Complainant had certain responsibilities
pertaining to the jail. (Tr. at 51). At times, he would relay messages between
the sheriff and Alice Peyton, the jail administrator. (Tr. at 49-50). He
did not, however, exercise any supervisory authority over her. (Tr. at 49).
On one occasion, he set up a disciplinary hearing for an inmate. (Tr. at
47, 50). He also reviewed jail records by reading through daily paperwork
and initialing it, a function which took five minutes a day. (Tr. at 17,
214-15). The jail responsibilities were taken over by Sheriff Davis shortly
after he took office. (Tr. at 18, 158).
41. During the course of the hearing, the issue arose of whether the
removal of these responsibilities was due to Complainant's age or multiple
sclerosis. Sheriff took over this responsibility because he wanted to see
how jail operations worked and because he felt he should handle the responsibility.
(Tr. at 154). There is no evidence in the record to indicate that, if a
nondisabled deputy or one not of complainant's age had this responsibility
at the outset of Sheriff Davis' administration, Sheriff Davis would have
refrained from taking over this responsibility. There is no evidence in
the record linking the removal of this responsibility to the Complainant's
age or multiple sclerosis.
42. After it was discovered, in 1980, that Complainant had multiple sclerosis,
the prior administrations of Sheriffs Herrick and Dryer accommodated the
Complainant's progressive condition by gradually limiting his duties to
predominantly civil work. (Tr. at 41-43, 47, 51-53, 92, 97). The Complainant
stopped routine patrol work in approximately 1980. (Tr. at 41). He did continue
to do patrol work after his multiple sclerosis was diagnosed in order to
fill in for deputies who wanted to be with their families on Christmas holidays
and similar occasions. (Tr. at 41). By the fall of 1984, he was doing no
patrol work because (a) he was kept busy doing civil work during the day
and, (b) it was necessary in order to accommodate his condition. (Tr. at
13, 41-43, 97).
43. During Sheriff Dryer's term, from January 1, 1984 to November 13,
1984, Complainant Nichol was not required to do patrol work, accident investigation,
answer emergency calls, or to perform strenuous duties such as breaking
up fights. (Tr. at 92, 97, 138). Thes., limitations on Complainant Nicol's
duties did not adversely affect the efficiency of the department or impose
additional costs because the civil work done by Nicol would have to be done
by a deputy in any event. (Tr. at 98). It should be noted that the number
of deputies available did not change from Sheriff Dryer's administration
to Sheriff Davis'. (Tr. at 95,186).
Accommodation Not Provided For Complainant's Multiple Sclerosis Under
the Davis Administration:
44. Once Sheriff Davis took office, Complainant Nicol was expected to
answer accident calls although he had informed Sheriff Davis that such stress
adversely affected his multiple sclerosis and that, in a serious accident,
a victim's life might be endangered because he could not handle the situation.
(R. Ex. A; Tr. at 54, 68-69, 77, 169, 187). Sheriff Davis only response
to the Complainant's informing him that he should not answer accident calls
due to his multiple sclerosis was to ask for a doctor's statement on what
he could and could not do. (Tr. at 54-55). As previously noted, Davis'
reaction to Dr. Hallberg's statement was to dismiss it as not being worth
the paper it was printed on.
45. Sheriff Davis believed he had the right to expect all of his deputies
to perform all functions. (Tr. at 188). He had informed Complainant Nicol
that he expected him to perform all deputy functions, although he did not
assign Nicol to routine patrol. (Tr. at 29, 59, 77, 192-93). He never indicated,
despite Complainant's requests to not be assigned strenuous, stressful duties,
that any accommodation would be provided him. (Tr. at 28). There is no evidence
in the record that any accommodation of Complainant Nicol was ever considered
by Sheriff Davis.
46. The culmination of this policy of requiring the Complainant to answer
accident calls is reflected by Complainant Nicol's account of the day in
March when he had to respond to two personal injury accident calls. (Tr.
at 12, 68-70). The stress resulting from this call led to an exacerbation
of Complainant's multiple sclerosis and to his taking sick leave:
I had two accidents . . . they didn't turn out to be big accidents, you know ... but there were enough there . . . I should explain . . . When you get an accident and you're out on the road somewhere, then you've got to turn red lights on if. . . it's a personal injury . . . you've got to race you know. Then all the time that you're traveling there you're not only in the stressful situation of driving because you're driving faster than normal but then you say, Oh my gosh, what happens if I get there and I can't do those things! When one of these situations come up and I can't do it now and somebody dies over that thing . .. how are you going to live with yourself? And I had two of them in the same day and that . . . really started bringing up this old boil, that boiled this whole thing up.... by the day I said I can't do it, I just couldn't do that one anymore. . . . And there was a road covered by ice, and there was a hill and people coming over it. And I kept going, "Oh my gosh," and I was having a hard time handling it, yes.
(Tr. at 68-70). See Finding of Fact No. 6.
Constructive Discharge:
47. Complainant Nicol resigned based on (a)
his perception that Sheriff Davis was harassing him, and (b) his reasonable
and accurate belief that, if he returned to work from sick leave, he would
be required to answer accident calls and to perform other duties which would
subject himself to stress, exacerbate his worsened condition, and endanger
the public. (Tr. at 33-35, 54, 72, 76, 78, 87). The predominant reason for
Complainant's resignation, which would have resulted in his resignation
even in the absence of the perceived harassment actions, was the requirement
to perform accident call and similar stressful duties. (Tr. at 35, 76).
48. In July, Sheriff Davis contacted the Complainant and asked him when
and if he were going to return from sick leave. (R. Ex. B; Tr. at 174).
Although Sheriff Davis had received the doctor's statements from University
Hospitals indicating that stress worsened Complainant's condition, he gave
no indication that the Complainant could return under different conditions.
(Cp. Ex. 5, 6; R. Ex. B; Tr. at 33-34, 163). Sheriff Davis would have accepted
the Complainant's return to work under the conditions which existed prior
to Complainant's taking sick leave. (Tr. at 174).
49. Complainant could not safely work under conditions where there was
no accommodation for his multiple sclerosis. (Tr. at 35, 78). Under these
circumstances, it was reasonable for Mr. Nicol to state that he did not
know when he would be back or if he would ever be back. (R. Ex. B). Between
that time and his resignation, there was still no indication of any accommodation
for Complainant's multiple sclerosis. (Tr. at 35). A reasonable person in
his position would feel he had no real choice but to accept the proffered
settlement and resign.
Credibility Findings:
50. Complainant Nichol was a credible witness. His testimony is internally
consistent and reflects few or no contradictions on material matters. There
were instances where his memory of events was not as clear as other witnesses,
but, where there was contradiction between his and other's testimony regarding
whether events happened or not, complainant acknowledged such events may
have happened. (Tr. at 63-64).
51. Sheriff Leonard Davis' testimony was credible with the exception
of his testimony that he did not believe that Dr. Hallberg's report reflected
Dr. Hallberg's opinion on what the Complainant could do in the law enforcement
area. The report itself is sufficient evidence to show that testimony is
not credible. A far more believable explanation, in light of the whole record,
for Sheriff Davis' rejection of the report is that Sheriff Davis simply
did not want to accommodate the Complainant's condition.
52. Joel Dryer, Sheryl Adams, Kathy Flaucher, and Alice Peyton
were credible witnesses.
Back Pay
53. The Complainant's resignation was effective September 10, 1985. (R.
Ex. C). He was paid at full salary by sick and vacation leave taken through
that date. (R. Ex. C; Tr. at 75). His salary as of February 2, 1985 was
approximately eighteen thousand nine hundred dollars per annum. (Cp. Ex.
2). The record does not reflect any information on salary increases for
deputy sheriff until July 1, 1989 when the sheriff's salary was increased
to twenty-five thousand two hundred dollars per annum. (Tr. at 38-39). Given
that a captain's salary is fixed at eighty-five percent of the sheriff's
salary, the deputy sheriff salary at the rank of captain as of that date
would be twenty-one thousand four hundred twenty dollars. (Cp. Ex. 2). Since
it is unknown whether there were any salary increases between February 2,
1985 and July 1, 1989 or, if there were increases, what amount they were,
back pay shall be calculated at the rate of $18,900 per year through July
1, 1989.
54. If he had not been constructively discharged, Complainant Nicol would
have retired at age 55. (Tr. at 34, 34, 104). Therefore, the back pay period
covers the period from September 10, 1985 to Complainant's 55th birthday.
Complainant's birthdate is not in the record. Since Complainant was 55 as
of the date of the hearing, his 55th birthday would have occurred within
the year preceding the hearing, i.e. at some point between August 11, 1988
and August 10, 1989. See Finding of Fact No. 3.
55. It may reasonably be inferred that, but for the stress resulting
from the continued requirement to answer accident calls, Complainant's March
1985 exacerbation would not have occurred, at least not at that time. See
Findings of Fact Nos. 6, 46. As a result of this exacerbation, by September,
1985, Complainant's ability to climb stairs was impaired to the extent he
could not be expected to climb stairs in the course of civil work. (Tr.
at 16, 35). As of the prior March, however, Deputy Hansel, the other deputy
performing civil work during the day, had indicated his willingness to handle
those situations. (Tr. at 9, 151). For this reason, and for other reasons
stated in the Conclusions of Law, the Commission is not persuaded that the
back pay period should terminate due to the effects of this exacerbation.
56. By the date of hearing, some further exacerbations had occurred. (Tr.
at 35, 37). Other than Complainant Nicol's testimony that he was more "confused
now than I ever was in 1985," there is no evidence in the record detailing
the number of these exacerbations, when they occurred and what effects they
had on Complainant's abilities. (Tr. at 35). Given this paucity of evidence
on these subsequent exacerbations, the Commission is not persuaded that
the back pay period should be terminated at a date prior to the Complainant's
55th birthday because of such exacerbations.
57. A gross annual salary of $18,900 yields a weekly amount of $363.46.
There are sixteen weeks during the period from September 11, 1985 to December
31, 1985. 167 weeks X $363.46 + $5815.36 gross back pay through December
31, 1985.
58. Gross back pay for the years 1986 and 1987 is $37,800.00. (2 years X
$18,900 per year + $37,800).
59. Gross back pay for the period from January 1, 1988 through August 10,
1988 is $11,448.99. (311/2 weeks X $363.46 per week + $11,448.99).
60. The total gross back pay for the period from September
11, 1985 to August 10, 1988 is $5815.36 + $37,000.00 + $11448.99 + $54,264.35.
61. Gross back pay for the period from August 1 1, 1988 until Complainant's
55th birthday or June 30, 1989, whichever comes first, shall be computed
at the rate of $18,900 per year. Gross back pay, if any, for the period
from July 1, 1989 to Complainant's 55th Birthday
shall be computed at the rate of $21,420 per year.
62. There is no evidence in the record of interim earnings nor any evidence
indicating that Complainant failed to mitigate damages.
Emotional Distress:
63. Because of his multiple sclerosis, Complainant Nicol was more vulnerable
to stressful events. (Cp. Ex. 5, 6, 7; Tr. at 11, 33, 129, 133-34). Mr.
Nicol has sustained substantial economic loss due to his constructive discharge.
See Findings of Fact Nos. 5354, 57-62. He was undoubtedly aware of the potential
for such loss at the time of his constructive discharge. (Tr. at 34-35).
The continued failure to accommodate the Complainant, the resultant requirement
to respond to the accident calls, the subsequent exacerbation of Complainant
Nicol's illness, and the need to take sick leave, resulted in substantial
emotional distress for Complainant. See Findings of Facts Nos. 5, 44-46,
49, 55. It may reasonably be inferred that these circumstances surrounding
and leading up to the constructive discharge resulted in the constructive
discharge being a very stressful event. In addition, being involuntarily
unemployed has led to a serious loss of self-esteem for the Complainant
which was evident even at the date of the hearing, almost four years after
the discharge. (Tr. at 36, 17).
64. In making an award of damages for emotional distress, care has been
taken to ensure that no award is made for emotional distress caused by the
disease per se. (Tr. at 31). In addition, no award is made for any emotional
distress caused by actions of the Respondent, such as the reprimand of February
28, 1985, which are found to be nondiscriminatory.
65. In light of the severity and duration of the distress suffered by Complainant Nicol, an award of seven thousand five hundred dollars ($7,500.00) is full, reasonable, and appropriate compensation.