Amy Wusk v. Evangelical Retirement Homes, Inc., D/B/A Valley View Village and Valley View Village Assisted Living, Inc. ( 2015 )

IN THE COURT OF APPEALS OF IOWA
No. 15-0166
Filed December 23, 2015
AMY WUSK,
Plaintiff-Appellant,
vs.
EVANGELICAL RETIREMENT HOMES,
INC., d/b/a VALLEY VIEW VILLAGE
and VALLEY VIEW VILLAGE ASSISTED
LIVING, INC.,
Defendants-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Dennis J. Stovall,
Judge.
A plaintiff appeals from a district court ruling granting summary judgment
in favor of the defendants on her wrongful-discharge claim. AFFIRMED.
Mark W. Thomas of Grefe & Sidney, P.L.C., for appellant.
Mitchell R. Kunert and Katie L. Graham of Nyemaster Goode, P.C., Des
Moines, for appellees.
Heard by Danilson, C.J., and Mullins and McDonald, JJ.
2
MULLINS, Judge.
Amy Wusk appeals from a district court ruling granting summary judgment
in favor of Evangelical Retirement Homes, Inc., d/b/a Valley View Village (Valley
View).1 She asserts she was wrongfully terminated from her employment with
Valley View in retaliation for pursuing a workers’ compensation claim. We affirm.
I. Background Facts and Proceedings
Wusk began working for Valley View, an assisted living facility, as a part-
time on-call Certified Nursing Assistant (CNA) in February 2011. In her position,
Wusk did not have regularly-scheduled shifts but was instead required to
schedule her own hours pursuant to the terms of the On-Call Nursing Pool
Agreement.2 Wusk scheduled shifts with Beatrix Baker, Valley View’s Quality
1
Valley View Village and Valley View Village Assisted Living, Inc. are separate and
distinct entities. Wusk admitted she was never employed by Valley View Village
Assisted Living, Inc. As a result, the district court dismissed Valley View Village Assisted
Living, Inc. from this suit. See Travillion v. Heartland Pork Enters., Inc., 2003 WL
21464807, at *3 (Iowa Ct. App. June 25, 2003) (affirming the dismissal of a plaintiff’s
claim against his former supervisor because “Iowa Code chapter 85 applies only to
employers”). Wusk does not appeal the district court’s dismissal of Valley View Village
Assisted Living, Inc.
2
Wusk executed two Pool Agreements with Valley View, one in February 2011 and one
in April 2012. Both agreements contained the following language:
5. Pool employees MUST BE AVAILABLE, RESPOND TO CALL and
WORK a minimum of:
 One holiday per calendar year
 One twelve (12) hour shift per month
Pool employees are responsible for coordinating their shift availability with
the staffing coordinator. If you cancel a shift that was to meet the above
requirements, you must make up that shift within two weeks. If the
missed shift was for a holiday, you must work the next holiday.
Employees will be excused from the above hours requirement if there are
no hours available.
....
8. Failure to follow the terms of this agreement will be considered a
voluntary quit.
3
Assurance Manager and Scheduling Coordinator. Generally, on-call CNAs were
required to sign up for hours in person or by calling Baker. On occasion, Baker
would contact employees if Valley View still had available hours or if it was short-
staffed and needed additional help that day. If an on-call CNA failed to meet the
requirements of the Pool Agreement, it resulted in a voluntary quit on behalf of
the employee.
On November 16, 2011, Wusk injured her arm while helping another
employee dress a patient. She claims she informed the nurses on duty that she
had injured her arm but was not provided an accident report form to complete.
The following day, Wusk visited the doctor. She also reported her injury to Brad
Cole, Valley View’s Executive Director.3 Wusk reported to Valley View for her
last scheduled shifts on November 18 and 19, 2011.
In December 2011, Wusk began treatment for her arm injury and was
placed on lifting restrictions until November 5, 2012. Wusk stated she remained
in contact with her supervisor, Karen Pewick, Valley View’s Director of Nursing,
throughout this time providing paperwork relating to her restrictions and notifying
Pewick when her restrictions were modified. She claims she notified Pewick
when her lifting restriction increased to fifteen pounds and requested light-duty
work, but Valley View never offered her light-duty work.
9. This agreement shall control to the extent it conflicts with the Valley
View Village personnel policy handbook.
3
Valley View’s Employee Handbook required an employee to notify her supervisor within
twenty-four hours if she experienced a work-related injury. Wusk did not report her
injury within this timeframe, but Cole submitted her report anyway.
4
On June 27, 2012, Wusk filed a workers’ compensation claim relating to
the November 16 injury to her arm.
On November 5, 2012, Wusk was released from all of her restrictions and
cleared to return to regular work. That same day Wusk notified Pewick of her
release and stated she was available for work. Wusk also left a message for
Baker conveying the same and inquiring about available hours. Baker returned
Wusk’s call within a day and left a message for Wusk. Wusk did not return
Baker’s call or speak with anyone else from Valley View following these contacts
until after she was terminated in August 2013.
On July 9, 2013, Wusk settled her workers’ compensation claim with
Valley View.
In August 2013, Shelly Barryhill, the Business Manager for Valley View,
conducted an audit of the on-call nursing staff. During the audit she discovered
Wusk had not scheduled any hours since November 2011 despite having been
released to return to work in November 2012. Barryhill and Pewick decided to
terminate Wusk from Valley View’s employment for failing to follow the terms of
the Pool Agreement. Cole subsequently approved this decision.4 On August 28,
2013, Valley View terminated Wusk’s employment. Wusk stated she visited
Valley View multiple times following her termination and attempted to contact
Barryhill to find out why her employment had been terminated, but Barryhill
refused to provide her any information or documentation saying what type of
4
Valley View submitted affidavits from Barryhill, Pewick, and Cole at summary judgment
stating none of them were aware of Wusk’s settlement at the time the decision to
terminate her employment was made.
5
employee Wusk was—which Wusk had hoped would assist her in finding new
employment.
On January 2, 2014, Wusk filed this action, alleging common-law
retaliatory discharge. On October 28, 2014, Valley View moved for summary
judgment prior to the close of discovery. On December 9, 2014, the court held a
hearing on Valley View’s motion. On January 15, 2015, the district court granted
Valley View’s motion for summary judgment. The court held Wusk had failed to
establish a causal connection between the filing of her workers’ compensation
claim and later termination. The court found Wusk’s claim that Valley View
employees had a negative demeanor toward her unconvincing and her
assertions that it was “common knowledge” at Valley View that employees would
be fired if they submitted a workers’ compensation claim were inadmissible and
vague. It further found that even if Wusk could rely on the settlement of her
workers’ compensation claim in July 2013 as the basis for retaliatory motive,
temporal proximity alone was not enough to establish causation. The court also
noted Valley View had a legitimate overriding business justification for
terminating Wusk’s employment: “her failure to coordinate work shifts from
November 2012 to August 2013.” The court concluded: “No reasonable fact
finder could conclude [Wusk] was terminated based on filing or settling her
workers’ compensation claim, rather than failing to schedule work shifts for nine
months.” Wusk appeals.
II. Standard of Review
6
We review a trial court’s grant of summary judgment for corrections of
errors at law. Iowa R. App. P. 6.4. Summary judgment is appropriate when
there are no genuine issues of material fact and the moving party is entitled to
judgment as a matter of law. Iowa R. Civ. P. 1.981(3); Goodpaster v. Schwan’s
Home Serv., Inc., 849 N.W.2d 1, 6 (Iowa 2014). The burden is on the moving
party and we view the record in the light most favorable to the nonmoving party.
Goodpaster, 849 N.W.2d at 6. “However, the nonmoving party may not rest
upon the mere allegations of his pleading but must set forth specific facts
showing the existence of a genuine issue for trial.” Hlubek v. Pelecky, 701
N.W.2d 93, 95 (Iowa 2005) (citing Iowa R. Civ. P. 1.981(5)).
III. Analysis
Iowa law adheres to the common-law employment-at-will doctrine, which
provides “the employment relationship is terminable by either party ‘at any time,
for any reason, or no reason at all.’” Fitzgerald v. Salsbury Chem., Inc., 613
N.W.2d 275, 280 (Iowa 2000) (quoting Phipps v. IASD Health Servs. Corp., 558
N.W.2d 198, 202 (Iowa 1997)). However, Iowa recognizes a public-policy
exception for employees alleging they were wrongfully discharged for filing a
workers’ compensation claim. See Springer v. Weeks & Leo Co., 429 N.W.2d
558, 560 (Iowa 1988) (citing Iowa Code § 85.18 (1987) (“No contract, rule, or
device whatsoever shall operate to relieve the employer, in whole or in part, from
any liability created by this chapter except as herein provided.”)).
In order to establish a prima facie case of retaliatory discharge, Wusk
“must establish (1) engagement in a protected activity, (2) adverse employment
7
action, and (3) a causal connection between the two.” Rivera v. Woodward Res.
Ctr., 865 N.W.2d 887, 894 (Iowa 2015) (quoting Teachout v. Forest City Cmty.
Sch. Dist., 584 N.W.2d 296, 299 (Iowa 1998)). For purposes of summary
judgment, both parties agreed Wusk could establish the first two elements of her
claim. Thus, the issue before us is whether the district court erred in determining
as a matter of law that no causal connection existed between Wusk’s filing a
workers’ compensation claim in June 2012 or her settlement of the claim in July
2013 and her termination from employment with Valley View in August 2013.
The causation standard in a retaliatory-discharge case is high. Teachout,
584 N.W.2d at 301. In order to prevail on her claim, Wusk must demonstrate her
filing of the workers’ compensation claim “was the determining factor in the
adverse employment action.”5 Rivera, 865 N.W.2d at 898; see Phipps, 558
N.W.2d at 203. A “determining factor” is one that “tips the scales decisively one
way or the other.” Teachout, 584 N.W.2d at 302 (quoting Smith v. Smithway
Motor Xpress, Inc., 464 N.W.2d 682, 686 (Iowa 1990)).
Wusk argues she established a genuine issue of material fact to be
considered by a jury by presenting substantial evidence that (1) Valley View
failed to provide her with hours, (2) Valley View administrators displayed a
negative attitude toward her following her injury in November 2011, and (3)
Valley View had a reputation for terminating employees injured on the job. She
5
Our supreme court recently clarified that a plaintiff in a retaliatory-discharge case is not
required to prove the lack of an overriding business justification. Rivera, 865 N.W.2d at
898. The employee must prove that the protected conduct was the determining factor,
and “evidence related to an employer’s legitimate business reasons” is relevant. Id. at
898–99. Indeed, “Iowa law does not impose liability on an employer when the
determining factor was a legitimate business reason.” Id. at 898.
8
asserts the district court assumed the functions of a jury by focusing solely on the
terms of the Pool Agreement instead of viewing the evidence in the light most
favorable to her, and improperly weighing evidence and evaluating the credibility
of witnesses.6
Wusk contends the district court ignored evidence that Valley View failed
to provide her work, including light-duty work following the modification of her
lifting restrictions. She asserts she fulfilled the requirements of the Pool
Agreement, but Valley View ignored her request to return to work for months and
waited over a year from the filing of her workers’ compensation claim to fire her
so that it could avoid a claim of retaliatory discharge.
Pursuant to the terms of the Pool Agreement, Wusk was required to
contact Baker to schedule her hours. On November 5, 2012, the day Wusk was
released to return to regular work, she contacted both Pewick, her immediate
supervisor, and Baker, the scheduling coordinator, asking to be put on the
schedule. Within a day, Baker returned Wusk’s call and left a message.
Although Wusk testified she attempted to call Baker again, her testimony was not
specific either as to how many times or when she tried calling Baker. Giving
every benefit of doubt to Wusk, if she did make any attempts to call Baker, they
were close in time to the initial November contact. Wusk’s testimony raises no
6
Wusk argues questions of causation and motive are factual in nature and must be
resolved by a jury. See Fitzgerald, 613 N.W.2d at 282. However, she fails to
acknowledge that retaliatory-discharge cases should be decided at summary judgment
when a plaintiff has failed to establish a question of material fact for the jury regarding
causation. See, e.g., Teachout, 584 N.W.2d at 303 (finding summary judgment
appropriate when the plaintiff “failed to produce sufficient evidence of a causal
connection between her firing and her intent to report child abuse”).
9
likelihood that during at least six months preceding her termination she made any
attempt to contact Baker or anyone else at Valley View regarding scheduling
hours to work.
Nine months after she was released to work without restrictions, Valley
View discovered Wusk had failed to follow the terms of the Pool Agreement,
resulting in a voluntary quit. Pewick and Barryhill both testified it was Wusk’s
failure to fulfill her obligations under the Pool Agreement that led to their decision
to terminate Wusk in August 2013. Cole stated that it was upon this basis that he
approved the termination decision. We agree with the district court in finding
Wusk’s “own failure to fulfill her obligation of coordinating shifts with the staffing
coordinator does not evince a retaliatory motive on the part of the employer.”
Thus, Wusk did not generate a genuine issue of material fact on this issue.
Wusk further contends the district court erred in determining that evidence
of the negative treatment she received from Valley View administrators after her
injury in November 2011 and the filing of the workers’ compensation claim in
June 2012 was vague. She claims Cole, the executive director, seemed
“distant,”7 the work “atmosphere was different,” no one at Valley View seemed
very helpful, and Barryhill seemed to avoid Wusk after she was terminated. This
court has held that mere generalities of a negative change in the way an
employee was treated after filing a workers’ compensation claim are insufficient
to prove that the filing of the claim was a determining factor in a subsequent
7
Despite Wusk’s claim that Cole seemed to not want to help her, the record shows Cole
submitted her injury report even though Wusk reported the injury outside of the twenty-
four hour reporting deadline provided for in the employee handbook.
10
adverse employment action. See McMahon v. Mid-Am. Constr. Co. of Iowa, No.
99-1741, 2000 WL 1587952, at *4 (Iowa Ct. App. Oct. 25, 2000). We agree with
the district court that there is no genuine issue of material fact concerning the
effect of how the perceived negative treatment Wusk experienced after her injury
evinces a retaliatory motive.
Next, Wusk argues the district court erred in dismissing evidence of
“common knowledge” among Valley View employees that the filing of a workers’
compensation claim would result in termination because it was inadmissible
hearsay. Wusk did not support her allegations by submitting affidavits from
witnesses or otherwise presenting evidence outside of her own testimony of what
other employees told her. Such evidence is hearsay and cannot be considered
at summary judgment. See Pitts v. Farm Bureau Life Ins. Co., 818 N.W.2d 91,
96 (Iowa 2012) (“[T]he court should only consider ‘such facts as would be
admissible in evidence’ when considering the affidavits [or testimony] supporting
and opposing summary judgment.” (quoting Iowa R. Civ. P. 1.981(5))). Wusk
contends this evidence is not hearsay because discovery was not yet closed at
the time of the summary judgment hearing, and therefore, she can still call
witnesses to testify at trial about the negative treatment of workers’
compensation claimants.8 Our rules clearly state the nonmoving party “may not
8
Wusk testified in her deposition that a coworker named Sharron had observed other
Valley View employees not receiving financial assistance for work-related injuries, and
was afraid to report a back injury for fear of losing her job. Wusk discussed another
coworker named Carlos who was injured at work and not compensated by Valley View,
however, Wusk did not know whether Carlos still worked for Valley View. She also
discussed an unnamed woman who had hurt her knee at work and was later fired, but
11
rest upon the mere allegations or denials in the pleadings,” Iowa R. Civ. P.
1.981(5), but “must set forth specific facts showing the existence of a genuine
issue for trial,” Hlubek, 701 N.W.2d at 95; see also Hammel v. Eau Galle Cheese
Factory, 407 F.3d 852, 859 (7th Cir. 2005) (“Summary judgment is not a dress
rehearsal or practice run, it is the put up or shut up moment in a lawsuit, when a
[nonmoving] party must show what evidence it has that would convince a trier of
fact to accept its version of the events.”). Wusk failed to set forth specific facts to
support her allegations that Valley View had a reputation for firing employees
who submitted workers’ compensation claims. Without such facts, she has not
demonstrated a genuine issue of material fact.
Additionally, Wusk claims the district court erred in rejecting her claim that
the temporal proximity between settlement of her workers’ compensation claim
on July 9, 2013, and her termination from employment on August 28, 2013,
evinces a retaliatory motive.9 She further complains the affidavits of Barryhill,
Cole, and Pewick stating they were unaware Wusk’s claim had been settled in
July 2013 are “self-serving and suspect,” and that it is unlikely these three were
unaware of her settlement due to their positions at Valley View. She argues the
district court erred in determining these witnesses were credible because
credibility is not within the court’s scope of review on summary judgment.
did not allege the subsequent firing was related to the employee’s engagement in any
protected activity.
9
Wusk did not plead that the settlement of her workers’ compensation claim in July 2013
is the protected activity she engaged in, but rather her filing of the claim in June 2012.
However, we acknowledge the district court ruled on this issue in its order and reach the
issue.
12
The fact that termination occurs after an employee has engaged in a
protected activity is alone insufficient to establish a causal connection. Teachout,
584 N.W.2d at 302; Phipps, 558 N.W.2d at 203 (holding that evidence of an
employee’s engagement in a protected activity followed by his termination one
month later, by itself, is “insufficient to generate a jury question on retaliation”).
Wusk failed to present evidence to contradict Valley View’s affidavits from
Barryhill, Cole, or Pewick that they were unaware her workers’ compensation
claim had been settled. Further, the district court did not err in considering these
affidavits. See Iowa R. Civ. P. 1.981 (providing for the use of affidavits in support
of summary judgment motions). Therefore, Wusk has not presented sufficient
evidence to support a conclusion that a genuine issue of material fact exists that
could support her allegation that settlement of her workers’ compensation claim
was the determining factor that led to her termination.
IV. Conclusion
Upon our review of the record before us, we conclude no genuine issue of
material fact exists in support of Wusk’s allegations that either the filing of her
workers’ compensation claim in June 2012 or the settlement of her claim in July
2013 was the determinative factor in Valley View’s August 2013 decision to
terminate her employment. Therefore, we agree with the district court that
Wusk’s retaliatory-discharge claim fails as a matter of law.
AFFIRMED.