Seim v. Three Eagles Communications, Inc
Filing
30
ORDER: Granting in Part and Denying in Part 13 Motion for Summary Judgment. Signed by Senior Judge Donald E O'Brien on 06/01/11. (kfs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
BRIAN D. SEIM,
Plaintiff,
No. 09-CV-3071-DEO
THREE EAGLES COMMUNICATIONS,
INC.,
ORDER
v.
Defendant.
____________________
TABLE OF CONTENTS
I.
BACKGROUND
. . . . . . . . . . . . . . . . . . . . .
1
II. DISCUSSION . . . . . . . . . . . . . . . . . . . . . 6
A. Seim’s Disability Discrimination Claim . . . . . 7
B. Seim’s Perceived Sexual Orientation Discrimination
Claim . . . . . . . . . . . . . . . . . . . . . 11
C. Seim’s Retaliation Claim . . . . . . . . . . . . 16
D. Seim’s Wrongful Termination in Violation of Public
Policy Claim
. . . . . . . . . . . . . . . . . 17
III.
CONCLUSION
. . . . . . . . . . . . . . . . . . . . 18
Before the Court is the motion for summary judgment filed
by Defendant Three Eagles, Inc., on January 6, 2011.
No. 13.
Docket
As set forth below, the Court grants in part and
denies in part Three Eagles’ motion.
I.
BACKGROUND
Beginning in November of 2008, Plaintiff Brian Seim
worked as an on-air radio personality for Three Eagles, which
operates seven radio stations in the Fort Dodge, Iowa, area.
Docket No. 13-3 at 5. Mr. Seim’s starting position with Three
Eagles was as the morning host of KWMT,1 though he later took
on additional shifts later in the day.
Docket Nos. 13-3 at 5.
Seim had significant experience working as a morning radio
host prior to joining Three Eagles.
Docket No. 13-3 at 12.
Seim was supervised directly by KWMT Program Director Joe
Zimmerman when he started working for Three Eagles.
Within a
month or two of his start with the company, Seim began being
directly supervised by Operations Manager Miles Riker and one
of Riker’s subordinates, Duane Murley, who was promoted to the
KWMT Production Director position vacated by Zimmerman.
Id.
at 6, 67-68.
Mr. Seim suffers from Graves’ disease, “an autoimmune
disorder that leads to overactivity of the thyroid gland
(hyperthyroidism).”
PubMed Health, http://www.ncbi.nlm.nih.
gov/pubmedhealth/PMH0001398/. Seim’s condition was previously
treated with radiation therapy “that essentially destroyed his
thyroid gland,” and as a result he must now take medication
designed to provide the hormones once produced naturally by
1
Seim testified in his December 21, 2010, Deposition that
he arrived at work at 5:00 a.m. and his morning show lasted
from 6:00 to 10:00 a.m. Docket No. 13-3 at 5.
2
his thyroid.
several
Docket No. 17-3 at 2.
symptoms
deteriorating
of
vision,
the
Seim claims he suffers
disease,
weight
including
fluctuation,
rapidly
insomnia,
narcolepsy, anxiety, swelling and skin lesions of the lower
extremities, and difficulty standing for long periods of time.
Id.; see also Docket No. 13-3 at 8.
According to Seim’s
deposition testimony, existing treatments can ease some, but
not all, of these symptoms, but he cannot afford all such
treatments.
Docket No. 13-3 at 10-11.
Seim claims he
informed several members of management at Three Eagles he had
a “blood disease” and would require occasional time off.
Docket No. 17-3 at 3-5.
Seim also claims that not long after
his hiring, his medications began to make him drowsy and
confused and caused him to slur his speech.
at 3-5, 8-10.
Docket No. 17-3
Seim claims that these effects occurred in the
early morning but wore off before mid-day; and for this
reason, he requested transfer to several available afternoon
shifts.
Id. These requests were allegedly denied.
Id.
further
claims
prolonged
periods painful.
his
disease
Id.
makes
standing
for
Seim
Radio broadcasters at Three Eagles
typically stood during their on-air programs; Seim requested
a chair to avoid prolonged standing.
3
Id.
Although the
request was allegedly denied, another employee brought a chair
from the employee’s home for Seim to use.
Id.
In addition to these alleged refusals on the part of
Three Eagles to accommodate Mr. Seim’s Graves’ disease and the
side effects of medications, Seim alleges that during his
employment with Three Eagles he was harassed on several
occasions because he was perceived to be gay. Docket No. 17-3
at 8-11.
taunts,
According to Seim, these incidents involved verbal
inappropriate
questions
about
Seim’s
sexuality,
unwelcome physical contact, and vandalism of his car.
Id.
Seim specifically alleges that, on at least three occasions,
Mr.
Riker
asked
if
Seim
was
gay;
Riker
also
repeatedly
inquired as to whether Seim’s blood disease was AIDS; when the
topic of a new women’s bathroom at Defendant’s Fort Dodge
radio station came up, Riker stated that Seim should be sent
to check it out; when Seim asked Riker if he could interview
the first gay couple in Iowa to be civilly united, Riker
responded that the story was “perverted” and said “I knew you
were going to ask me that”; Riker refused to investigate two
incidents in which Seim’s car was vandalized with anti-gay
graffiti while parked at Defendant’s radio station; on the day
Seim was terminated, Riker told Seim he knew he was a pansy
4
the day he saw him; and on one occasion Riker pinched Seim’s
breast and told Seim he would make some man happy some day.
See Docket Nos. 13-3 (Seim Dep.), 17-2 (Seim Stmnt. of Addt’l
Mat. Facts in Resist. to Def.’s Mot. for Summ. J.), and 17-4
(Seim Aff.).
Mr. Seim claims he repeatedly complained to superiors
that he was being discriminated against on the basis of his
Graves’ disease and his perceived sexual orientation, but that
no actions were undertaken to resolve these issues.
Seim
resigned shortly after one such alleged complaint, but claims
to have rescinded this resignation almost immediately.
Three
Eagles denies having any knowledge of such recision. Seim was
ultimately terminated in May 2009.
Seim filed his complaint against Three Eagles on November
5, 2009, alleging disability discrimination under federal and
state laws, perceived sexual orientation discrimination under
state law,2 retaliatory discharge in violation of federal and
state laws, and wrongful termination in violation of public
policy and under state law.
Docket No. 2 (Seim’s Complaint).
2
Although Mr. Seim’s Complaint indicated this claim was
being pursued under the Iowa Civil Rights Act, the parties
have, in their subsequent pleadings and in argument before
this Court, analyzed this claim under federal law. The Court
will likewise consider this claim in this manner.
5
Three Eagles seeks summary judgment on all of the foregoing
claims, and Seim resists summary judgment. Docket Nos. 13 and
17.
The matter came before the Court for oral argument on
March 3, 2011, and is now fully submitted.3
II.
DISCUSSION
Summary judgment is proper “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).
Fed. R.
To support an assertion that a fact cannot be
or is genuinely disputed, a party must cite “to particular
parts of materials in the record,” show “that the materials
cited do not establish the absence or presence of a genuine
dispute,” or show “that an adverse party cannot produce
admissible evidence to support the fact.”
56(c)(1)(A)-(B).
Fed. R. Civ. P.
“The court need consider only the cited
materials, but it may consider other materials in the record.”
3
Following the March 2011 Hearing, the Court ordered
supplemental briefing to determine whether Seim had exhausted
his administrative remedies as required to pursue his ADA and
ICRA claims.
Docket No. 23.
The documentary evidence
submitted by Seim in response to the Court’s Order (including
copies of his Equal Employment Opportunity Commission/Iowa
Civil Rights Commission Charge and Right-to-Sue Letters, none
of which had been made a part of the record in this case)
demonstrate Seim did in fact exhaust his administrative
remedies prior to filing the instant action. Docket No. 24-1.
The parties have expressed to the Court that exhaustion is not
a disputed issue in this matter.
6
Fed. R. Civ. P. 56(c)(3).
In determining whether summary
judgment is appropriate, a court must look at the record and
any inferences to be drawn from it in the light most favorable
to the nonmovant.
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986).
A.
Seim’s Disability Discrimination Claim
Mr. Seim claims Three Eagles discriminated against him
because of his disability in violation of the Americans with
Disabilities Act (ADA) and Iowa Civil Rights Act (ICRA).4
Seim’s ADA claims are analyzed under the burden-shifting
framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792
4
When the parties in disability discrimination litigation
“do not dispute the application of federal analysis,
disability claims under the ICRA are generally analyzed in
accord with the ADA.” Gretillat v. Care Initiatives, 481 F.3d
649, 652 (8th Cir. 2007) (citing McElroy v. State, 703 N.W.2d
385, 391 (Iowa 2005)); see also Tjernagel v. Gates Corp., 533
F.3d 666, 671 (8th Cir. 2008) (“ADA and ICRA disability claims
are analyzed under the same standards.”); Casey’s General
Stores, Inc. v. Blackford, 661 N.W.2d 515, 519 (Iowa 2003)
(providing that ICRA “only pronounces a general proscription
against discrimination and we have looked to the corresponding
federal statutes to help establish the framework to analyze
claims and otherwise apply our statute”); Schlitzer v.
University of Iowa Hospitals & Clinics, 641 N.W.2d 525, 529
(Iowa 2002) (“The common goals of the Federal ADA and our
civil rights act have encouraged us to look to the federal
statutory and regulatory standards in applying our statute.”).
Therefore, the Court will analyze both Seim’s ADA and ICRA
disability discrimination claims using federal law. The Court
will refer to both types of claims as “ADA claims” in this
Order.
7
(1973).
To establish a prima facie case, Seim must establish
(1) that he had a disability within the meaning of the ADA;
(2) that he was qualified to perform the essential functions
of the job, with or without reasonable accommodation; and (3)
that he was subject to an adverse employment action due to his
disability.
Duello v. Buchanan Cnty. Bd. of Supervisors, 628
F.3d 968, 972 (8th Cir. 2010).
If Seim establishes a prima
face
must
case,
legitimate,
then
Three
Eagles
nondiscriminatory
employment decision.
come
reason
forward
for
its
with
a
adverse
Kratzer v. Rockwell Collins, Inc., 398
F.3d 1040, 1044 (8th Cir. 2005).
If Three Eagles does so,
then Seim must show that Three Eagles’ reason was pretext for
discrimination.
Id.
The ADA defines “disability” as “(A) a
physical or mental impairment that substantially limits one or
more of the major life activities of such individual; (B) a
record of such impairment; or (C) being regarded as having
such an impairment.”
42 U.S.C. § 12101(1).5
5
To show that he
Congress recently enacted the ADA Amendments Act of 2008
(ADAAA), effective January 1, 2009, which expanded the class
of individuals entitled to protection under the ADA. Pub. L.
110-325, § 2, Sept. 25, 2008, 122 Stat. 3553. The Court finds
the ADAA should be applied in this case because Mr. Seim’s
claims all appear to stem from acts that occurred after the
ADAA’s effective date of January 1, 2009. Cf. Nyrop v. Indep.
Sch. Dist. No. 11, 616 F.3d 728, 734 n.4 (8th Cir. 2010) (ADAA
amendments are not retroactive and should not be applied to
alleged acts of discrimination prior to its effective date).
8
was qualified to perform his job, Seim “must demonstrate that
he meets the essential prerequisites for the job . . . and
that he can perform the essential functions of the job with or
without a reasonable accommodation.”
Duello, 628 F .3d at
972.
Mr. Seim argues that his Graves’ disease and the side
effects of medications he uses to treat it are a disability
that
substantially
sleeping;
limited
standing;
the
speaking;
major
life
activities
concentrating;
of
thinking;
communicating; working; and the functions of his immune,
circulatory, and endocrine systems. Docket No. 17-3 at 3. In
light
of
the
record
evidence—including
Seim’s
Affidavit
(Docket No. 17-4) and his deposition testimony (Docket No. 175; see also Docket No. 13-3 at 4-47)—the Court concludes that
a reasonable jury could find that Seim was substantially
limited in these major life activities.
As for whether Mr. Seim was qualified to perform the
essential functions of the job, with or without reasonable
accommodation, Seim’s position appears to be that, although he
was initially able to perform the essential functions of his
morning shift without accommodation, within a few months of
his hiring, accommodations became necessary due to a worsening
9
of his condition and the emergence of several side effects of
his medications.
The parties agree Seim requested three
accommodations: a chair, time off for medical treatment, and
a later shift.
Although radio personalities at the station
typically stood during their broadcasts, Seim requested a
chair because standing for this length of time—indeed, for any
length of time beyond ten minutes—was allegedly very painful.
Seim alleges he conveyed this to Riker, but Riker refused his
request.
(A few days later, Seim claims another employee
brought a chair from the employee’s home for him to sit on.)
Seim
alleges
his
requests
for
time
off
related
to
his
disability were granted, but he was the only employee at the
station who was required to provide documentary proof that his
absences were medical in nature.
Finally, Seim alleges he
repeatedly requested transfer to available positions later in
the day to accommodate his disability, but his requests were
denied and the other positions were filled by less qualified
individuals.
Although
the
evidence
supporting
these
allegations is not overwhelming, particularly in comparison to
much of the contradictory evidence offered by Three Eagles,
the Court nevertheless finds that genuine issues of material
fact exist as to whether Three Eagles was aware of Seim’s
10
disability and whether Three Eagles failed to reasonably
accommodate the disability. In addition, whether Three Eagles
engaged in an interactive process to determine the appropriate
accommodation
and
whether
it
was
responsible
for
the
breakdown, if any, in the interactive process are questions of
fact for the jury.
Given the foregoing, the Court denies Three Eagles’
motion
for
summary
judgment
on
Seim’s
disability
discrimination claims.
B.
Seim’s Perceived Sexual Orientation Discrimination Claim
Mr. Seim also claims he was discriminated against on the
basis of his perceived sexual orientation, in violation of
Iowa Code § 216.6(1)(a).6
Seim alternatively characterizes
6
This section provides that it shall be an unfair or
discriminatory practice for any
Person to refuse to hire, accept, register,
classify, or refer for employment, to
discharge any employee, or to otherwise
discriminate in employment against any
applicant for employment or any employee
because of the age, race, creed, color,
sex, sexual orientation, gender identity,
national origin, religion, or disability of
such applicant or employee, unless based
upon the nature of the occupation. If a
person with a disability is qualified to
perform a particular occupation, by reason
of training or experience, the nature of
that occupation shall not be the basis for
exception to the unfair or discriminating
11
this claim as one based on same-sex sexual harassment under
Title VII.7
The parties appear to agree this claim should be
assessed under Title VII and the burden-shifting framework of
McDonnell Douglas.8
To make a prima facie case under the McDonnell Douglas
framework, Seim has to show that “‘(1) [he] was a member of
the protected group; (2) [he] was qualified to perform the
job; (3) [he] suffered an adverse employment action; and (4)
practices prohibited by this subsection.
Id. § 216.6(1)(a) (emphasis added); see also Iowa Code §
216.2(14) (“‘Sexual orientation’ means actual or perceived
heterosexuality, homosexuality, or bisexuality.”).
7
See 42 U.S.C. § 2000e-2(a)(1) (providing in relevant
part that it is illegal for an employer “to fail or refuse to
hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual’s race, color, religion, sex, or
national origin.”); see also Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75, 79 (1998) (“If our precedents leave
any doubt on the question, we hold today that nothing in Title
VII necessarily bars a claim of discrimination ‘because of .
. . sex’ merely because the plaintiff and the defendant (or
the person charged with acting on behalf of the defendant) are
of the same sex.”); accord Schmedding v. Tnemec Co., Inc., 187
F.3d 862 (8th Cir. 1999); Quick v. Donaldson, 90 F.3d 1372
(8th Cir. 1996).
8
The parties also appear to agree that this claim should
be analyzed using federal law. Cf. Lewis, 591 F.3d at 1038
(“The parties agree that Lewis’ ICRA and federal [same-sex
sexual harassment] claims are analytically indistinguishable.”
(citing Quick, 90 F.3d at 1380)).
12
circumstances permit an inference of discrimination.’”
Lewis
v. Heartland Inns of Am., L.L.C., 591 F.3d 1033, 1038 (8th
Cir. 2010) (quoting Bearden v. Int’l Paper Co., 529 F.3d 828,
831 (8th Cir. 2008)).
of
unlawful
produce
a
“Such a showing creates a presumption
discrimination,
legitimate
requiring
[Three
nondiscriminatory
Eagles]
reason
for
to
its
Lewis, 591 F.3d at 1038 (citing Bearden,
employment action.”
529 F.3d at 831-32).
“The burden then returns to [Seim] to
prove that [Three Eagles’] proffered reason for firing [him]
Id. (citing Bearden, 529 F.3d at 832).
is pretextual.”
Regarding
the
first
step
of
the
McDonnell
Douglas
analysis in this case, Three Eagles challenges only Seim’s
ability to satisfy the fourth and final element of his prima
facie
case—that
is,
the
required
showing
that
the
circumstances surrounding his termination permit an inference
of discrimination.
The evidence Seim relies on to satisfy
this aspect of his prima facie case is the same evidence he
relies on to show pretext at step three of the McDonnell
Douglas analysis.
See Putman v. Unity Health Sys., 348 F.3d
732, 736 (8th Cir. 2003) (“[E]vidence of pretext—normally
considered
only
at
step
three
of
the
McDonnell
Douglas
analysis—[can also] satisf[y] this aspect of the plaintiff’s
13
prima facie case burden.”).
Evidence that the circumstances surrounding Mr. Seim’s
termination permit an inference of same-sex sex discrimination
include the sworn statements in Seim’s Affidavit and his
deposition
testimony
alleging
that
Mr.
Riker
repeatedly
questioned Seim’s sexual orientation and whether Seim had
AIDS, Riker refused to investigate whether Three Eagles staff
vandalized
Seim’s
car
with
anti-gay
graffiti,
and
Riker
pinched Seim’s breast and told him he would make some man very
See supra Part I on pages 3-4.
happy some day.
The Court
“recognize[s] that ‘[r]emarks at work that are based on sex
stereotypes do not inevitably prove that gender played a part
in a particular employment decision.
The plaintiff must show
that the employer actually relied on [his] gender in making
its decision.’”
Lewis, 591 F.3d at 1041 (quoting Price
Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989)).
Seim
has
met
this
burden
at
summary
judgment
However,
stage
by
providing evidence that the comments he cites “were not ‘stray
remarks in the workplace, statements by nondecisionmakers, or
statements
by
decisionmakers
process itself[.]’”
unrelated
to
the
decisional
Lewis, 591 F.3d at 1041 (quoting Simmons
v. New Pub. Sch. Dist. No. Eight, 251 F.3d 1210, 1214-15 (8th
14
Cir. 2001)).
Riker was Seim’s direct supervisor and was the
most senior employee at the affiliate Three Eagles station
where Seim worked.
And although several individuals besides
Riker apparently took part in the decision to terminate Seim,
they clearly relied to some degree on Riker’s recommendation
that Seim be terminated.
Docket Nos. 13-1 at 21; and 13-3 at
69-70.
Evidence, apart from the foregoing, that Three Eagles’
reason
for
the
termination
(i.e.,
that
Seim
was
acting
erratically and inappropriately, and thus was unfit to take to
the airwaves) were pretextual include the fact that Seim had
a history of good performance at Three Eagles and had in fact
been praised for his outstanding performance. Docket No. 17-4
at 4, ¶ 8.
On this record, a factfinder could infer a
discriminatory motive in Three Eagles’ decision to terminate
Seim.
Given the foregoing, the Court denies Three Eagles’
motion
for
summary
judgment
on
Seim’s
perceived
orientation/same-sex sexual discrimination claims.
15
sexual
C.
Seim’s Retaliation Claim
Seim also claims he was unlawfully retaliated against for
submitting a complaint about Mr. Riker, in violation of VII.
“Title
VII
prohibits
employers
from
retaliating
Lewis, 591
employees who oppose discriminatory practices.”
F.3d at 1042 (citing 42 U.S.C. § 2000e-3(a)).
against
“The burden
shifting McDonnell Douglas analytical framework applies to
this inquiry as well, beginning with the three elements of a
prima facie case of retaliation, whether: (1)the plaintiff
engaged in protected conduct, including opposition to an
action prohibited by Title VII; (2) [he] was subjected to an
adverse employment action, and (3) there is a ‘causal nexus
between
the
protected
conduct
and
the
adverse
action.’”
Lewis, 591 F.3d at 1042 (quoting Wallace, 442 F.3d at 1119).
“In making out a prima facie retaliation claim, [Seim]
need not prove the merits of the underlying claim of sex
discrimination.”
Lewis,
591
F.3d
at
1042.
“[He]
can
establish protected conduct ‘as long as [he] had a reasonable,
good faith belief that there were grounds for a claim of
discrimination[.]’”
Id. (quoting Wallace, 442 F.3d at 1119).
Three Eagles contends Seim’s multiple complaints to management
were not protected conduct. However, Seim specifically stated
16
in several of his complaints that he was being discriminated
against on the basis of his blood disease, as his numerous
requests for accommodations were either ignored or denied, and
he
also
complained
that
his
reports
of
harassment
and
vandalism to Riker and other supervisors had never been acted
upon.
Seim thus has provided ample evidence showing he
engaged in protected conduct by opposing illegal actions.
There is no dispute regarding whether Seim suffered an
adverse employment action. And there is ample record evidence
to support a causal nexus between that adverse employment
action
and
Seim’s
complaints
to
management.
Seim
was
terminated the same day he sent one of these complaints to
Three Eagles’ corporate office and his immediate supervisors
at the station.
Further, the evidence of pretext discussed
above applies with equal force in evaluating whether Seim has
made out a prima facie retaliation claim.
Given the foregoing, the Court denies Three Eagles’
motion for summary judgment on Seim’s retaliation claim.
D. Seim’s Wrongful Termination in Violation of Public
Policy Claim
Finally,
Seim
claims
that,
termination violated public policy.
under
Iowa
law,
his
Three Eagles responds
that this claim is preempted by the ICRA, which provides the
17
exclusive remedy for the sort of complained-of conduct related
to this claim.
The Court agrees.
The Iowa Supreme Court has held that “the ICRA, Iowa Code
chapter
216
.
.
.
,
provides
the
exclusive
remedy
for
particular conduct prohibited under that statute.” Channon v.
UPS, Inc., 629 N.W.2d 835, 857 (Iowa 2001) (citing Greenland
v. Fairtron Corp., 500 N.W.2d 36, 38 (Iowa 1993)); see also
Canterbury v. Federal-Mogul Ignition Co., 418 F. Supp. 2d
1112, 1118-19 (S.D. Iowa 2006) (holding that former employee’s
claim that he was wrongfully discharged, in violation of Iowa
public policy, was preempted by the ICRA, as the public policy
claim and ICRA claim involved the same conduct).
Accordingly, the Court grants Three Eagles’ motion for
summary judgment on Seim’s wrongful termination in violation
of public policy claim.
III.
CONCLUSION
IT IS THEREFORE HEREBY ORDERED that Three Eagles’ motion
for summary judgment (Docket No. 13) is GRANTED as to Mr.
Seim’s wrongful termination in violation of public policy
claim. Three Eagles’ motion for summary judgment is DENIED in
all other respects.
IT IS SO ORDERED this 1st day of June, 2011.
__________________________________
Donald E. O’Brien, Senior Judge
United States District Court
Northern District of Iowa
18
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