Kohrt v. Midamerican Energy Co., Civil Action No. 3-00-CV-10090 (S.D. Iowa 8/30/2002), Civil Action No. 3-00-CV-10090.
| Decision Date | 30 August 2002 |
| Docket Number | Civil Action No. 3-00-CV-10090.,No. 3:00-cv-30090.,3:00-cv-30090. |
| Parties | HARRY KOHRT, Plaintiff, v. MIDAMERICAN ENERGY CO. and JANE TEW, Defendants. HARRY KORT, Plaintiff, v. MIDAMERICAN ENERGY CO., Defendant. |
| Court | U.S. District Court — Southern District of Iowa |
Defendants' motion for summary judgment is before the Court. Plaintiff, Harry Kohrt ("Kobrt"), filed a complaint against MidAmerican Energy Company (MEC) and his former supervisor, Jane Tew, alleging statutory and state common-law violations arising from his termination by MEC and the company's refusal to rehire him as a lineman. Against MEC, Kohrt's amended complaint alleges discrimination under the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. §§ 621-634 and the Iowa Civil Rights Act (ICRA), Iowa Code § 216.6 (Count I);. retaliation (Count II); and wrongful discharge in violation of public policy based on Kohrt's allegation that MEC terminated him and refused to rehire him because he disagreed with certain MEC safety policies (Count IV). Against Tew, Kohrt alleges interference with contract (Count III). Defendants move for summary judgment, claiming that there are no disputed material facts and that they are entitled to judgment as a matter of law. Plaintiff resists, and defendants filed a reply. Oral argument was requested, but the Court finds it unnecessary. The motion is fully submitted.
The following facts relevant to this motion either are not in dispute or are viewed in a light most favorable to the nonmovant.1 In the fall of 1967, Kohrt began his employment with Iowa-Illinois Gas and Electric Company ("Iowa-Illinois") as a ground man patrolman. Kohrt became an electric distribution supervisor in 1987, and remained employed with Iowa-Illinois until July 1995 when there was a merger and Iowa-Illinois ceased to exist. Following the merger, all former Iowa-Illinois employees had to apply for positions with MEC. Kohrt was then hired by MEC to work as an electric distribution supervisor. According to Don Welvaert, Kohrt's supervisor at the time, Kohrt was the lowest qualified among the supervisors who were selected. Kohrt disputes the truth of Welvaert's statement, however, because he believes he had more education and experience than other supervisors, he had received a good performance review in 1995, and he was very well-regarded among line crew members.
In December 1995, MEC offered Kohrt a safety and training coordinator position, which he refused. He received favorable feedback in a 1996-97 performance evaluation, and on a scale of 1-9, received 4's (showing development opportunity) and mostly 5's and 6's (fully acceptable). In April 1997, Kohrt was terminated from the position of electric distribution supervisor. He asked for the reason and was not given an answer, except that a manager with MEC, Virginia Dasso, told him she regarded his experience as valuable for the safety and training position. Kohrt then took the safety and training coordinator position over several other options, including applying for another position within the company, returning to the position of lineman journeyman, or accepting a severance package and leaving the company.
In February 1998, Guy Jackson became Kohrt's new supervisor. Less than two days later, Kohrt's safety and training coordinator position was eliminated. Jackson had determined that MEC could fulfill its safety duties without the position. Kohrt was given thirty days to consider other positions within MEC or accept a severance package. As a result of reorganization, Russell White later became supervisor of the safety department of MEC and reviewed Jackson's decision with respect to the elimination of Kohrt's position. Although White stated that the size of the employee base in the area required the reinstatement of the safety and training coordinator position, according to Jane Tew, White felt that Kohrt's termination was improperly handled under company procedures and was not supported by the records. On March 17, 1998, White sent Kohrt a letter offering him the reinstated safety and training coordinator position, specifically indicating that the position was at-will. There was never a written agreement for Kohrt's employment. Kohrt accepted the position.
Jane Tew became Kohrt's supervisor in April 1998 as the manager of safety, training, and regulatory compliance. Within a few days, Tew began documenting Kohrt's performance. Kohrt recalls that Tew or White told him to "think outside the box" and "pick up the pace," but they never told him that his performance was unsatisfactory. Kohrt was terminated on December 7, 1998. Kohrt disputes the reasons given in his termination letter, namely failure to communicate with his supervisor; the fact that he "knew nothing" about retrofitting MEC's trucks to accommodate fall protection equipment, a project he had allegedly been assigned to oversee; and failure to perform satisfactorily after being counseled regarding his poor performance.2 Kohrt had communicated frequently with Tew, whether via voice mail, electronic mail, by leaving messages with her secretary, or in person at meetings. There were no problems or complaints with his efforts on retrofitting. His work was well-received by linemen. In addition, MEC failed to follow its own procedures with respect to Kohrt's termination.
On April 6, 1999, Kohrt filed a charge of discrimination against MEC with the Equal Employment Opportunity Commission (EEOC) alleging age and sex discrimination and retaliation with respect to his termination. He did not list Jane Tew as a respondent. Kohrt never filed any claims or charges within MEC regarding discrimination or retaliation. Although the EEOC issued Kohrt a right-to-sue letter on his discrimination charge, Kohrt did not file a lawsuit in response to that letter.3
Before filing the April 6, 1999 charge with the EEOC, on March 17, 1999, Kohrt responded to a newspaper advertisement by applying for a position with MEC as a lineman. He was forty-nine years old at the time.4 Kohrt was not interviewed for the position. Randy Stein stated that he received the applications for the lineman position but did not consider Kohrt to be the top applicant because he had no recent lineman experience. He had not been a lineman since October 1987. Christopher Walton was interviewed for the position, in part because he had recent experience. Kohrt believes, however, that Stein's statements are inaccurate and a pretext for age discrimination. Stein's testimony is inconsistent with what MEC told the Iowa Civil Rights Commission (ICRC). In its response to the TCRC, MEC asserted that Stein never reviewed Kohrt's application, and that the only requirements for the lineman's position were being a certified lineman and possessing (or having the ability to obtain) a commercial driver's license, not mentioning the need for recent experience. Stein's testimony and MECs response to the ICRC also reveal inconsistent reasons for why Kohrt was not hired.
Had Kohrt's application progressed, MEC states that it nevertheless would not have rehired him because it has a policy against hiring persons previously terminated for cause. Kohrt disputes the truth of this assertion because no such policy is in writing, Stein was not aware of such a policy, and other employees with performance problems were terminated and rehired in the past. There have also been instances when because of grievances or arbitration, MEC has been required to restore a terminated union employee to a bargaining unit position. Kohrt asserts that his age was a reason for MEC's failure to rehire him, pointing to comments made by Virginia Dasso and Russell White. In addition, since the time of his March 1999 application, there have been five lineman openings at MEC filled by individuals ages 27 (Christopher Walton, the first lineman hired after March 1999), 38, 33, 29, and 33. The average age of these new hires is 32.
On September 7, 1999, Kohrt filed new charges with the ICRC based on MEC's refusal to rehire him as a lineman. The ICRC issued a right-to-sue letter on April 7, 2000, and Kohrt filed this action in state court on May 28, 2000.5 It was later removed to this Court, and Kohrt subsequently amended his complaint to add a claim for wrongful discharge in violation of public policy. This count focuses on two MEC safety policies: the use of one- or two-person crews in responding to calls, and the use of body belts or harmesses for fall restraint when linemen are working out of buckets on power lines. MEC states that its linemen are free to use either body belts or harnesses. Further, MEC states that its practice is to send one person to investigate a situation, and to send a second person any time one is needed. Kohrt believes that he was terminated for disagreeing with the company's one-person work policy. He believes that one person can safely investigate, but should not perform work alone due to the need for available first aid and cardiopulmonary resuscitation (CPR) assistance in the event of an emergency. Linemen work around high levels of voltage which can cause serious injury and death by electric shock, and a lineman at MEC temporarily lost his eyesight while performing work alone. Kohrt's conduct included articulating his position on one-person work in a meeting and in a letter to Jane Tew. Several MEC managers were critical of Kohrt's resistance to (or lack of support for) the one-person work policy as well as his failure to support the company position on fall protection, Tew considered Kohrt's action in voicing his opposition to the one-person work policy at a safety meeting to be misconduct. In addition, MEC has refused to send a second person to a site in some circumstances, and has threatened to discipline and terminate...
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