Pick v. City of Remsen

• Decision Date: 27 August 2014
• Docket Number: No. C13-4041-MWB,C13-4041-MWB
• Court: U.S. District Court — Northern District of Iowa
• Parties: STEVE PICK, Plaintiff, v. CITY OF REMSEN, PAIGE LIST, RACHAEL KEFFELER, KIM KELEHER, JEFF CLUCK, CRAIG BARTOLOZZI, and KEVIN ROLLINS, Defendants.

STEVE PICK, Plaintiff, v. CITY OF REMSEN, PAIGE LIST, RACHAEL KEFFELER, KIM KELEHER,JEFF CLUCK, CRAIG BARTOLOZZI, and KEVIN ROLLINS, Defendants.

No. C13-4041-MWB

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA WESTERN DIVISION

August 27, 2014

MEMORANDUM OPINION AND ORDER REGARDING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

TABLE OF CONTENTS

I. INTRODUCTION...........................................................................3

A. Factual Background...............................................................3

1. The parties...................................................................3

2. The Manual.................................................................4

3. Pick's interactions with List..............................................6

4. Allegations about missing money........................................7

5. Trail camera in Pick's office.............................................8

6. Request for audit...........................................................9

7. Online banking and completion of rate study.......................11

8. Pick's medical leaves and related activities..........................11

9. Elimination of Pick's position.........................................16

10. Aftermath..................................................................16

B. Procedural Background.........................................................17

II. LEGAL ANALYSIS......................................................................18

A. Summary Judgment Standards.................................................18

B. Defamation Claims ...............................................................24

1. Applicable law ............................................................25

2. Application of the law ...................................................28

a. Missing money....................................................28i. Truth.......................................................28

ii. Qualified privilege.......................................31

b. Hiding or altering documents..................................34

c. Other defamation allegations ..................................35

C. Section 1983 Claims..............................................................36

1. Claim against Bartolozzi................................................37

2. Claims against Rollins and Cluck.....................................37

3. Claim against the City...................................................41

D. Intentional Infliction Of Emotional Distress Claims.......................42

E. Wrongful Termination In Violation Of Employee Manual...............43

F. Disability Discrimination Claims..............................................44

1. The analytical framework...............................................45

2. Prima facie case ..........................................................46

a. Disability ........................................................... 47

b. Other requirements ..............................................49

3. Nondiscriminatory reason for action .................................49

4. Showing of pretext.......................................................49

G. Age Discrimination Claims.....................................................51

1. The analytical framework...............................................51

2. Prima Facie case .........................................................53

H. Gender Discrimination Claims.................................................54

I. Retaliation Claims................................................................54

1. ADA/ICRA retaliation claim...........................................55

2. First Amendment retaliation ...........................................58

III. CONCLUSION............................................................................59

The former long-time operations director of a city's utilities department brings diverse but related claims under the Americans with Disabilities Act ("ADA"), 42 U.S.C.§ 12101 et seq., the Iowa Civil Rights Act ("ICRA"), Iowa Code Ch. 216, 42 U.S.C. § 1983; the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq., Title VII of the federal Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17, and pendent state law claims for defamation, intentional infliction of emotional distress, and wrongful termination against his former employer, supervisors, co-employees, and city officials. Defendants assert that they are entitled to summary judgment on all of the plaintiff's claims, while the plaintiff asserts that a reasonable jury could find in his favor on most, but not all, of his claims.

I. INTRODUCTION

A. Factual Background

As is my usual practice, I set out only those facts, disputed and undisputed, sufficient to put in context the parties' arguments concerning the defendants' motion for summary judgment. Unless otherwise indicated, the facts recited here are undisputed, at least for the purposes of summary judgment. I will discuss additional factual allegations, and the extent to which they are or are not disputed or material, if necessary, in my legal analysis.

1. The parties

Plaintiff Steve Pick resides in Remsen, Iowa. He was formerly employed as Operations Director of Remsen Municipal Utilities ("the Utility" or "Utility"). Defendant City of Remsen ("the City") is a municipality in the State of Iowa. Defendant Paige List resides in Remsen and is the City's Clerk. Defendant Rachael Keffeler resides in Remsen and is the City's Deputy Clerk. Defendant Kim Keleher resides in Remsen and is a member of the Utility's Board of Directors ("the Utility Board"). Defendant Jeff Cluck resides in Remsen and is the City's Mayor. Defendant Craig Bartolozzi residesin Remsen and is the City's former Mayor. Bartolozzi is currently the Utility Board's Chairman and is employed by the Plymouth County Sheriff. Bartolozzi, while Remsen's Mayor, asked then Utility Board members Steve Matgen and Tom Bacan to fire Pick. Bartolozzi also expressed his dissatisfaction with Pick to Don Kolker, another former Utility Board member.

There is a factual dispute about whether Mayor Cluck asked Don Kolker, then a Utility Board member, to fire Pick. Cluck denies this while Kolker contends that Cluck asked him to do so.

In January 2012, the current Utility Board was seated. Keleher, Bartolozzi, and Dean Douvia were appointed by Mayor Cluck. Bartolozzi is the Chairman. On January 1, 2012, Craig Reiter started work as the Director of Utilities. Reiter was hired by the former Utility Board. When the current Utility Board members took office, Pick's work hours were 7:00 a.m. - 4:00 p.m. Pick's office was located in Remsen City Hall. The Utility Board instructed Pick to change his hours so that he worked from 8:00 a.m. - 5:00p.m., the hours that Remsen City Hall was open. In the spring of 2012, Pick completed an evaluation of Keffeler. Bartolozzi thought Pick's evaluation was unfair and that there was a lack of communication in the office.

2. The Manual

The City and the Utility have a "Manual of Personnel Policies and Administration" ("The Manual"). The Manual's introduction states:

This manual of personnel policies and administration is designed to provide the employees of the City of Remsen and the Remsen Municipal Utilities a written record of the policies, responsibilities, rights, and benefits of their employment.

The Manual at 2; Defendants' App. at 110. Section 2.1 of the Manual was titled "Equal Employment Opportunity" and provides:

No appointment to or termination from a position with the City of Remsen or the Remsen Municipal Utilities shall be affected or influenced in any manner by any consideration of race, creed, sex, age, national origin, political opinion, or handicap. All persons shall have equal access to positions, limited only by their ability to do the work. Promotions, advancement, and training opportunities will be awarded without regard to any of the factors outlined above.

The Manual at 2; Defendants' App. at 110. The Manual contains the following "definition" of the City Clerk/Treasurer position: "This is administrative work involving accounting and record keeping for the city council and all city departments. Also acts as chief administrator and supervisor of all city departments, except the police department." The Manual at 14; Defendants' App. at 111. The Manual also has the following "characteristics" of this position:

Keeps records of licenses, permits and fees; keeps records of revenues and expenditures of city funds by modern and efficient accounting methods; attends and keeps records of all meetings of the city council as well as attend any committees/boards of the city as requested. Makes Treasurers reports to the city council and utility board and administrative reports to the city council; keeps personnel records; prepares payroll of city/utility employees; publishes ordinances; certifies documents. Performs other administrative duties at the direction of the City Council.

The Manual at 14; Defendants' App. at 111.

Section XII of the Manual governs termination of employment.¹ Paragraph 12.4 addresses discharge, suspension or demotion, and lists several examples of conductconstituting cause for discharge. The Manual provides that an employee, before dismissal, is entitled to an oral hearing before that employee's department head at which the employee is allowed to state their case. The Manual also states that, after an employee has the right to appeal his or her dismissal to the Remsen City Council ("City Council") or the Utility Board.

3. Pick's interactions with List

In July 2011, Pick published in minutes in the local newspaper that the Utility Director (Pick), had asked that the Clerk, List, get reports to him in a more timely fashion. List was "appalled" and "upset" by Pick's action, which she viewed as a public attack on her. List Dep. at 18-19; Plaintiff's App. at 38-39. As a result of Pick's action, List made a request to the City Council to remove from her...