Opinion
No. C98-2004
January 3, 2000.
ORDER
This matter comes before the court pursuant to trial on the merits of this action brought under the Americans with Disabilities Act and Iowa common law. It arises out of the termination of plaintiff's employment as an instructor at the Hawkeye Community College. Trial to the court was held February 8 through 10, 1999, at which plaintiff was present and represented by Mark Fransdal. The Defendant was represented by Bruce Braley. The parties consented to the exercise of jurisdiction by a United States Magistrate Judge, pursuant to 28 U.S.C. § 636(c). The court finds in favor of the Plaintiff and against Defendant Hawkeye Community College and awards damages in the amount of $46,810.00.
FINDINGS OF FACT
The plaintiff Michael King is a 1965 graduate of Cedar Falls Senior High School. He attended Hawkeye Community College (then known as Hawkeye Institute of Technology) beginning in 1989. He received an Associate of Applied Science degree in drafting and drafting technology in 1992. He attended the University of Northern Iowa from 1992 through 1995, and graduated with a Bachelor of Technology degree. Prior to attending Hawkeye Community College, he held a number of positions in the Waterloo/Cedar Falls area in manufacturing settings. He also owned a retail snack shop at a mall in Waterloo for approximately eight years.
The plaintiff suffers from morbid obesity. When he graduated from high school he weighted approximately 235 pounds. By the time he attended the community college in 1989, he weighed between 400 and 450 pounds. By March of 1995, he weighed between 500 and 550 pounds. He was admitted to the hospital in January of 1996, weighing 597 pounds. Following his May, 1996 gastric bypass surgery, the plaintiff weighed approximately 385 pounds.
In 1995, Hawkeye Community College had an unexpected need for an adjunct instructor in drafting. The engineering and technology department head, Dr. Eldon Swanson, learned through a student that Michael King could fill this position. Dr. Swanson called the plaintiff in late February of 1995. The plaintiff was still attending the University of Northern Iowa and was not scheduled to graduate until May. Accordingly, accommodations were worked out so that the plaintiff could teach drafting courses and complete his studies at the University of Northern Iowa. Plaintiff then taught one or two courses in the summer session, as an adjunct instructor.
In the fall of 1995, the plaintiff was still employed as an adjunct instructor. However, his health condition changed dramatically. As a result of a substantial weight gain, the plaintiff had difficulty walking and breathing. Staff at the community college observed him have great difficulty even walking from the parking lot to his classroom. He would have to stop and sit down to catch his breath on this short walk. Other staff at the school observed these difficulties. They also observed plaintiff's ashen skin color and his profuse sweating upon engaging in any activity. Staff also observed that students from his class would run errands to get coffee, supplies and mail for the plaintiff.
Maxine Ballard, Vice President of Human Relations, visited the plaintiff. She asked him if there were any accommodations that were necessary to assist him at school. He told her that none were required and that he simply had to do his part to lose weight. Other staff were genuinely concerned that he could fall, have a heart attack, or stop breathing. They were concerned about the plaintiff's health and were worried about their ability to assist him in the event of a serious medical emergency.
Also in the fall of 1995, it was determined that an additional full-time instructor should be hired to replace the instructor that resigned in February of 1995. A screening committee, consisting of the department head, Dr. Swanson, other teachers in the department and a secretary, was appointed to screen the candidates and make three recommendations to Dean Rich Lake, as to who should fill the position.
The committee interviewed applicants for the position and recommended two candidates for the position. The plaintiff was not one of the two candidates recommended. When the Dean requested the name of a third qualified candidate, the plaintiff's name was then sent. On or about December 28, 1995, Dean Lake chose plaintiff as the successful candidate for the position. Shortly thereafter, plaintiff was given an orientation meeting at which the Faculty Handbook was presented to him and explained.
Members of the screening committee were upset by the decision to hire the plaintiff. They believed that their recommendation had not been taken seriously by the Dean, as he had decided to hire the committee's third choice for the position. Both the secretary and Dr. Swanson complained to Dean Lake about the decision.
Plaintiff's health condition continued to be a problem. It had a negative affect on his attendance. During the month of January, the plaintiff was absent approximately the same number of days that he taught. Plaintiff signed his contract on January 24, 1996 (Exhibit 1). He taught only a day and a half after he signed the contract before going home on sick leave. When he was hospitalized on January 29th, he was so obese that he could not get behind the steering wheel of his truck. He was hospitalized for four or five days for congestive heart failure. During his stay in the hospital, 40 pounds of fluid was drained away from plaintiff's heart. He was not released to return to work after this hospitalization due to side effects from his medication. Hawkeye Community College was given a release so that it could obtain any medical information it might need from a health care provider.
Plaintiff was then sent to the Mayo Clinic in Rochester, Minnesota for the entire week of February 12, 1996. At the Clinic, extensive tests were run to determine whether plaintiff qualified for gastric bypass surgery in order to lose weight. At the Mayo Clinic, plaintiff learned that he was a good candidate for the surgery, but had to come back at the end of February for a determination of the final test results.
On or about February 20, 1996, Joe Schuster called plaintiff from Hawkeye Community College's Human Relations Department. Mr. Schuster told the plaintiff that he was being placed on a medical leave of absence (Exhibit 5). The leave was approved by Dean Lake and President Dan Brobst. Plaintiff agreed to the leave of absence reluctantly. Schuster also told the plaintiff that he had not worked a sufficient amount of time for his health insurance to go into effect. Plaintiff then exercised his option to secure health benefits through his wife's employer's Blue Cross/Blue Shield plan.
This was an error. Plaintiff had health insurance through the college. They just never told him.
The college then sent the plaintiff a letter informing him that he qualified for and was being placed on a medical leave of absence pursuant to the college's Board Policy 442. A copy of that policy was attached to the letter. The policy provides:
Series Numbers 442
POLICY TITLE: Administrative, Classified and Faculty Extended Leave — Illness/Disability
A regular full-time employee who is unable to work as a result of illness or injury shall be eligible for unpaid leave for up to six months after all paid leaves have been exhausted upon the conditions set forth herein:
1) If the employee has not returned to work within three months after the beginning of the employee's disability, the employee's supervising Vice President and the Human Resources Director (collectively the "Administrators") shall conduct a review of the employee's status. (The employee may be required to secure and submit medical information concerning the length of the recovery.)
2) If the employee has not returned to work within six months, the Administrators shall make a determination concerning the likelihood for the employee's return to regular full-time employment within a reasonable period of time. If, in the opinion of the Administrators, there is not a reasonable likelihood that the employee will return to work within a reasonable period of time, then termination proceedings, as permitted under the Code of Iowa or the policies of the College as may be appropriate shall be initiated. The effective date of the termination shall be set so that the employee's eligibility for long-term insured disability or other fringe benefits afforded to regular full-time employees is not prejudice.
3) If the employee is a Vice President or the Human Resources Director, then the second person on the Administrators' Committee shall be the President of the College.
4) An employee may request an extension of the unpaid leave for illness or injury not to exceed an additional three months. The Administrators shall have the authority and discretion to approve or disapprove the request for extended leave. Any such request must be made prior to the end of the initial six month unpaid leave. The decision of the Administrators concerning a requested extension shall be final and shall not be subject to the grievance procedure.
Date of Adoption: October 25, 1994
The Faculty Handbook also provides similar protection:
Extended Leave — Illness/Disability
A regular full-time or part-time employee who is unable to work as a result of illness or injury shall be eligible for unpaid leave for up to six months after all paid leaves have been exhausted subject to conditions set forth by the Board of Trustees. During this time, the College will seek information about the medical condition of the employee and assist in obtaining Long Term Disability insurance or other benefits to which the employee may be entitled. Unless an extension is requested by the employee, he/she will be terminated if it appears she/he will not be able to return to work within a reasonable time after the six months has elapsed. For complete information, contact the Human Resources Director.
(Exhibit 2, p. 57).
Plaintiff went back to the Mayo Clinic on February 29, 1996, and learned that he was considered a good candidate for gastric bypass surgery. His surgery was set to take place on May 6, 1996. Plaintiff took the information he received about the surgery to the college and met with Dean Lake and others. He informed them that the recuperation period for this surgery would take any where from six weeks to three months. The plaintiff had requested that the school accommodate his medical condition by appointing adjunct instructors to fulfill his teaching obligations for the remainder of the semester.
On April 23, 1996, Dean Lake and Joe Schuster came to the plaintiff's residence. They delivered a notice of the college's intent to terminate the plaintiff's teaching contract (Exhibit 3). The Dean explained that the plaintiff had a right to a hearing and to be represented by counsel. Plaintiff immediately called an attorney and requested that a hearing be scheduled (Exhibit 6, p. 1). The hearing was set but ultimately postponed due to plaintiff's plans for surgery on May 6, 1996 (Exhibit 6, p. 2). The Hawkeye Community College Board Secretary wrote:
After Mr. King has been released from the hospital we will schedule a private hearing at a date and time mutually acceptable to both parties.
Hawkeye Community College never scheduled that hearing and never called about a date and time. If Hawkeye Community College had made any inquiry, it would have learned that plaintiff was willing and able to return to work well prior to the fall semester.
Plaintiff had the surgery as scheduled on May 6, and was in the hospital for eleven days. His recuperation went well, he began to feel good in June and improved dramatically in July. During this time, there was no communication whatsoever between plaintiff and the college. The college did not inquire about the plaintiff's condition and did not reschedule the hearing. The plaintiff believed that his notice of termination prevented him from going back to work at Hawkeye Community College and, as a result, he took another job with a company called Auto Tech in late July.
Vice President of Human Relations, Maxine Ballard, was aware of the college's obligation under Board Policy 442 to conduct a review at the end of six months to determine whether it was reasonably likely that the plaintiff could return to work. Because of hearsay information concerning plaintiff's acceptance of employment, the college simply assumed that plaintiff had no more interest in his job. The college did not hire another full-time instructor to take over plaintiff's responsibilities, according to Ms. Ballard, because the college had "just decided to let it ride." No one called plaintiff to ask whether he wanted a hearing or wanted his job back. However, it is clear that by the end of July the plaintiff was willing and able to return to work.
This lack of communication continued. Finally, on November 25, 1996, defendant sent a letter informing plaintiff that since it had been six months since plaintiff's attorney had contacted the school and nine months since he had been placed on leave, the college was changing his employment status from "inactive on unpaid leave" to "terminated effective 11/22/96." Maxine Ballard testified that the letter did not deal with his employment contract, but only with the extended leave. Her attempt to distinguish his employment status from his employment contract still makes no sense to this court. Then, on December 17, 1996, the Board of Trustees met and terminated plaintiff's contract for not responding to the November 26th letter (Exhibit 7, p. 44). It was terminated effective November 22, 1996 (Exhibit 8, p. 74). Finally, on January 15, 1997, plaintiff's lawyer, Dennis Currell, sent a letter to Hawkeye Community College renewing his request to review Mr. King's personnel file and demanding a hearing.
Plaintiff's teaching contract with Hawkeye Community College paid him $2300 per month. He also had substantial insurance benefits and a 401K contribution. The job he took with Auto Tech in the summer of 1996 paid $21,500 a year. That salary was raised to $23,500 as of August 1, 1997. The plaintiff did not particularly like his employment at Auto Tech because he had to work in a crowded environment and his employer was very demanding. Ultimately, he was fired for his poor attitude in late May 1998, after having worked 22 months.
Plaintiff's work history reveals no period of lengthy employment.
This court believes that plaintiff was not able to return to work until August 1, 1996, when he took employment at Auto Tech. Had he remained at Hawkeye Community College, plaintiff would have earned $2544 more in salary than he earned at Auto Tech in 1996. In 1997, plaintiff earned $5100 less at Auto Tech than he would have earned at Hawkeye Community College. Because of his raise at Auto Tech, he earned $4100 less at that employment in 1998. The court believes that the plaintiff would maintain that differential in 1999, 2000 and 2001 had he retained his employment at Auto Tech. His failure to retain this employment is a failure to mitigate damages.
In addition to his salary, plaintiff received $300 per month from Hawkeye Community College in a cafeteria benefit plan. He spent $148 per month on health insurance which was ultimately replaced by plaintiff's current employer in March of 1999. In addition, the plaintiff took $144 in cash. Thus, plaintiff is entitled to be compensated for past lost benefits in the amount of $300 times 31 months plus $144 for the remaining 10 months. Finally, plaintiff is entitled to be compensated for his lost 401K contribution of $1587 per year. The court believes that a two-year period of front pay will permit the plaintiff to reach the level he would have been at had he remained at Hawkeye Community College.
Thus, plaintiff's damages as a result of his termination are as follows:
Back pay
Front Pay
1996 $2,544. 1997 5,100. 1998 4,100. 1999 4,100.
2000 4,100. 2001 4,100.
Past 10,740. Future 3,456.
Past 5,396. Future 3,174.TOTAL $46,810
CONCLUSIONS OF LAW Americans With Disabilities Act
The Americans With Disabilities Act forbids employers to discriminate against individuals with a disability because of the disability of such individuals. 42 U.S.C. § 12112(a); Pedigo v. Pam Transport, Inc., 60 F.3d 1300 (8th Cir. 1995). The purpose of the ADA is broad and remedial: it is designed to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities. Gerdes v. Swift-Eckrich, 125 F.3d 634 (8th Cir. 1997). The ADA is fundamentally concerned with preventing substantial personal hardship in the form of a significant reduction in a person's real work opportunities. Id.
An employee is entitled to some relief if he proves that his disability was a motivating factor in the decision made even though other factors also motivated the employer's decision. Pedigo, supra. Under the McDonnell Douglas burden-shifting scheme, a plaintiff must first establish a prima facie case of discrimination by showing that he is disabled within the meaning of the ADA; that he is qualified to perform the essential functions of his job with or without reasonable accommodation, and that he suffered an adverse employment action because of his disability. Nesser v. Trans World Airlines, Inc., 160 F.3d 442 (8th Cir. 1998). If the plaintiff establishes a prima facie case, the burden then shifts to the employer to articulate some legitimate nondiscriminatory reason for its actions. If the employer meets this burden, the plaintiff then bears the burden of demonstrating that the employer's stated reason is a pretext for discrimination. The plaintiff bears the ultimate burden of demonstrating that discrimination was the real reason for the employer's action. Id.
In another recent case from the Eighth Circuit, the third element of the prima facie case was stated somewhat differently. Under this test, the plaintiff must show that he suffered adverse employment action under circumstances from which an inference of unlawful discrimination arises. See Young v. Warner-Jenkinson Co., Inc., 152 F.3d 1018 (8th Cir. 1998).
A plaintiff may prove that he is disabled by showing either that (1) he has a disability as defined under the ADA, (2) he suffers from a history from such a disability, or (3) is perceived by his employer as having such a disability. The plaintiff here claims protection under the first two definitions of disability. The first definition of a disability under the ADA requires the plaintiff to show that he has an impairment that substantially limits one or more of his major life activities. 42 U.S.C. § 12102 (2). Major life activities include functions such as walking or working. 29 C.F.R. § 1630.2(i). To substantially limit the major life activity of working means to significantly restrict the plaintiff's ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. Robinson v. Neodata Services, Inc., 94 F.3d 499 (8th Cir. 1996). The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working. Wooten v. Farmland Foods, 58 F.3d 382 (8th Cir. 1995). See also Snow v. Ridgeview Medical Center, 128 F.3d 1201 (8th Cir. 1997).
A number of decisions have addressed the question of whether morbid obesity is a disability within the meaning of the ADA. Physical characteristics that are not the result of a physiological disorder are not considered impairments for the purpose of determining either actual or a perceived disability. Francis v. City of Meriden, 129 F.3d 281 (2d Cir. 1997) (citing Andrews v. State of Ohio, 104 F.3d 803 (6th Cir. 1997)). This court does not believe that plaintiff's employment was terminated either because of his morbid obesity or because he was perceived as being morbidly obese. Dr. Swanson, a strong proponent for plaintiff's termination, is also morbidly obese. Dean Lake made the decision to hire the plaintiff and also participated in the decision to terminate his employment. The court is convinced that these most influential players in plaintiff's termination were not motivated by plaintiff's obesity. They were motivated by the plaintiff's taking of extended medical leave. The question then becomes whether this termination violates plaintiff's contract of employment with the Hawkeye Community College and the court finds that it does.
Faculty Handbook As Employment Contract
The common-law doctrine of employment at will is firmly rooted in Iowa law. Fogel v. Trustees of Iowa College, 446 N.W.2d 451, 455 (Iowa 1989); Wolfe v. Graether, 389 N.W.2d 643, 652 (Iowa 1986); Abrisz v. Pulley Freight Lines, Inc., 270 N.W.2d 454, 455 (Iowa 1987); Anderson v. Douglas Lomason Co., 540 N.W.2d 277, 281 (Iowa 1995). As a general rule, if no employment contract exists, either party may terminate the relationship for any lawful reason, at any time. French v. Food, Inc., 495 N.W.2d 263, 265 (Iowa 1996); Jones v. Lake Park Care Center, 569 N.W.2d 369, 374 (Iowa 1997), or for no reason at all. Lara v. Thomas, 512 N.W.2d 777, 781 (Iowa 1994). There are two narrow exceptions to Iowa's employment-at-will doctrine: when the discharge is in clear violation of a well-recognized and defined public policy, Springer v. Weeks Leo Co., 429 N.W.2d 558, 560 (Iowa 1988); Borschel v. City of Perry, 512 N.W.2d 565, 567 (Iowa 1994), and when an employer's handbook or policy manual guarantees an employee that discharge will occur only for cause or under certain conditions. McBride v. City of Sioux City, 444 N.W.2d 85, 90 (Iowa 1989); Cannon v. National By-Products, Inc., 422 N.W.2d 638, 640 (Iowa 1988); Young v. Cedar County Work Activity Center, 418 N.W.2d 844, 847-48 (Iowa 1987). The Iowa Supreme Court has recognized "under certain conditions" to include progressive disciplinary procedures. Anderson, supra, at 281.
The court has found that an employee policy manual distributed to employees may constitute an offer by the employer that is then accepted by performance on the part of the employee. Hunter v. Board of Trustees of Broadlawns Medical Center, 481 N.W.2d 510, 513 (Iowa 1992). The result of this bargaining process is a unilateral contract. Id. A unilateral contract consists of an offer or making a promise and an offeree rendering some performance. Anderson, supra, at 283. In exchange for the employer's guarantee not to discharge in the absence of cause or certain specified conditions, the employer reaps the benefits of a more secure and presumably more productive work force. Hunter, supra, at 513. The consideration for the bargain arises from the employee remaining on the job, given that she would otherwise be free to leave. Id. The key to determining whether a contract has been created is whether a reasonable employee upon reading the handbook would believe they had been guaranteed certain protections by their employer. Jones, supra, at 374.
The parties to an employment contract must manifest their mutual assent to be bound and do so in a manner that is sufficiently definite to be enforceable. Fogel, supra, (personnel handbook must be sufficiently definite in its terms to create an offer); McBride, supra, (handbook may create unilateral contract of employment if expressions contained in the handbook, in light of surrounding circumstances, give worker a reasonable understanding of continued employment).
Courts applying unilateral contract theory have generally held that an employee handbook must meet three requirements to rise to the level of a unilateral contract of employment: (1) the handbook must be sufficiently definite in its terms to create an offer; (2) the handbook must be communicated to and accepted by the employee so as to create acceptance; and (3) the employee must continue working, so as to provide consideration. Id. at 90. See Anderson, supra, at 283; Phipps v. IASD Health Services Corp., 558 N.W.2d 198, 202 (Iowa 1997); Tredrea v. Anesthesia Analgesia, 584 N.W.2d 276, 285 (Iowa 1998). Claims under unilateral contract theory frequently break down because the disciplinary provisions are too indefinite to create an offer, or there is no acceptance because the disciplinary provisions are never communicated to the employee. McBride, supra, at 90-91. An offer must be communicated before it may be accepted. Id. at 91. If the employee manual makes no clear reference to grounds or procedures for termination, it cannot constitute an "offer" of continued employment. Id. As in any contract, the party who seeks recovery on the basis of a unilateral contract has the burden to prove the existence of the contract. Anderson, supra, at 283.
Iowa has adopted the traditional position with respect to unilateral contracts: the offeree's performance must have been induced by the promise made. Anderson, supra, at 284. However, the court has declined to follow that traditional requirement that knowledge is a prerequisite to acceptance in the limited context of employee handbook cases. Id. The court reasons that the departure from traditional contract analysis is necessary to treat all employees the same whether they read the employee handbook or not. Anderson, supra, at 284(reading the employee manual does not prevent plaintiff from relying on the promises contained within it for a breach-of-contract action). If the handbook is distributed to all employees, the contract is not an individually negotiated agreement, but rather is standardized agreement between the employer and a class of employees and thus, it is unnecessary for one particular employee seeking to enforce a promise make in the handbook to have knowledge of the promise. Id. In McBride, the handbook was distributed only to department heads and there was no communication with employees, so employees could not rely on promises in the handbook; however, in Anderson, the handbook was distributed to all employees and received by the plaintiff. Anderson, supra, n. 4 at 283.
To determine whether the language of an employee handbook creates a contract, the court asks these questions to determine whether an employee is reasonably justified in understanding a commitment has been made: (1) is the handbook in general and the progressive disciplinary procedures in particular mere guidelines or a statement of policy, or are they directives?; (2) Is the language of the disciplinary procedures detailed and definite or general and vague?; (3) Does the employer have the power to alter the procedures at will or are they invariable? Anderson, supra, at 286. If the language of the handbook is vague, creates procedural guidelines, and reserves the right for employers to change procedures, the handbook does not create a unilateral contract.
In Iowa, when a contract has been breached, the non-breaching party is generally entitled to be placed in a position that he or she would have occupied had there been performance. Magnusson Agency v. Public Entity National Company — Midwest, 560 N.W.2d 20, 27 (Iowa 1997).
Plaintiff's employment contract, in particular as it is found in the Faculty Handbook Policy Section 442, was clearly breached. The policy specifically provided that an employee such as the plaintiff was eligible for unpair leave for up to six months. The three-month review, if it was done at all, was not done with a view toward determining whether the plaintiff could come back to work. The plaintiff was not asked to participate or to send any medical information.
Shortly after being placed on this medical leave, the plaintiff was told that his contract was subject to termination. The only thing of any significance after the plaintiff signed that contract was for him to reluctantly accept their demand that he take extended leave under Policy 442. The plaintiff demanded a hearing and was told that Hawkeye Community College would schedule a hearing after the plaintiff's surgery. Hawkeye never scheduled that hearing or called the plaintiff to determine an appropriate date and time for the hearing.
Again, under the policy, the plaintiff was entitled to a six-month review to determine whether he could return to work within a reasonable period of time. The policy provided that if there were no reasonable likelihood following that six-month review that the plaintiff could return to work, then termination proceedings as permitted under the Code of Iowa were to be initiated. The administrators at Hawkeye Community College could not make a determination concerning the likelihood that plaintiff would return to work without contacting him or getting his medical records. Hawkeye did not provide this six-month review that was promised in Policy 442.
The plaintiff's termination in November was unusual because nothing had happened since August. When plaintiff later wrote as to the status of his termination, he was told by Hawkeye that the Board had terminated his contract in December for failing to respond to the letter of November in which he was notified that he had in fact been terminated.
Employment Policy 442 was breached when Hawkeye commenced termination proceedings in April 1996. It was breached when Hawkeye failed to conduct a six-month review in July 1996. The breach is the cause of the damages set forth in the Findings of Fact set forth above because, but for the breach, Hawkeye would have known of plaintiff's availability and ability to teach beginning the fall semester of 1996.
Upon the foregoing,
IT IS ORDERED
That the Clerk of Court for the Northern District of Iowa shall enter judgment in favor of plaintiff Michael King and against defendant Hawkeye Community College on plaintiff's state law breach of contract claim in the amount of Forty-Six Thousand Eight Hundred and Ten Dollars ($46,810). Judgment shall be entered in favor of Hawkeye Community College on plaintiff's Americans With Disabilities Act claim. All damages awarded to the date of this judgment shall be paid with prejudgment interest. Future damages shall not be paid with prejudgment interest. Costs shall be taxed to the defendant.