Wordekemper v. Western Iowa Homes & Equipment

262 F.Supp.2d 973

Dean WORDEKEMPER, Plaintiff, v. WESTERN IOWA HOMES & EQUIPMENT, INC., Midwest Homes, Inc., Lori Handlos, and Patrick Malloy, Defendants.

No. C 01-3085-MWB.

United States District Court, N.D. Iowa, Central Division.

March 17, 2003.

COPYRIGHT MATERIAL OMITTED

seq.; Fed Rules Civ. Proc. Rule 56, 2828 U.S.C.A.

James T. Fitzsimmons, Fitzsimmons & Vervaecke Law Firm, Mason City, IA, Mark D. Sherinian, Sherinian & Walker Law Firm, West Des Moines, IA, for Plaintiff.

Carla Heathershaw Risko, Michael E. Currans, Robert T. Cannella, Fitzgerald Schorr Barmettler & Brennan PC, Omaha, NE, for Defendants.

MEMORANDUM OPINION AND ORDER REGARDING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

BENNETT, Chief Judge.

                       TABLE OF CONTENTS
1. INTRODUCTION                                                      976
   A.Procedural Background                                           976
   B.Factual Background                                              977
II.LEGAL ANALYSIS                                                    978
   A. Standards For Summary Judgment                                 978
   B. Wordekemper's Disability Discrimination Claim                  979
      1.Arguments of the parties                                     979
      2.Analysis                                                     980
        a.Evidence of "disability"                                   981
          i.   "Actual" disability                                   981
         ii.   Record of disability                                  984
        iii.   Perceived disability                                  984
        b.Evidence of "pretext"                                      986
           i. WIHE and Handlos                                       986
          ii. Midwest Homes and Malloy                               986
        C.Wordekemper's Common-law Retaliation Claim                 987
          1. Arguments of the parties                                987
          2. Analysis                                                988
             a.  WIHE and Handlos                                    988
             b.  Midwest Homes and Malloy                            988
III. CONCLUSION                                                      990

INTRODUCTION

A. Procedural Background

In this action, filed October 10, 2001, plaintiff Dean Wordekemper asserts disability discrimination claims pursuant to the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq., and the Iowa Civil Rights Act (ICRA), IOWA CODE CH. 216, and a wrongful discharge claim pursuant to Iowa common law. The defendants are Western Iowa Homes & Equipment, Inc. (WIHE), Midwest Homes, Inc., Lori Handlos, who was WIHE's sole proprietor, and Patrick Malloy, who held managerial positions with WIHE and subsequently with Midwest Homes. Somewhat more specifically, in his ADA and ICRA claims, Wordekemper alleges that he was not rehired when Midwest Homes "took over" WIHE's business because of his actual disability, perceived disability, or record of disability arising from a back injury that he suffered while employed with WIHE.

In his common-law claim, Wordekemper alleges that the defendants retaliated against him for seeking worker's compensation for his back injury by refusing to rehire him when Midwest Homes "took over" WIHE's business.

This matter comes before the court pursuant to the defendants' January 13, 2003 motion for summary judgment on all of Wordekempers claims. With'leave of the court, the defendants amended, their submissions in support of their motion on February 14, 2003, and Wordekemper resisted the motion on February 14, 2003, and Wordekemper resisted The defendants filed a reply on February 26, 2003, accompanied by a Supplemental Index of Evidence. On March 11, 2003. the court received a courtesy copy of aft application from Wordekemper for leave to file a surreply, and on March 13, 2003, the court received a response from the defendants, in letter form, by facsimile transmission.¹ Neither party requested oral arguments on the defendants' motion for summary judghment, so that the motion is now fully submitted.

B. Factual Background

Whether or not a party is entitled to summary judgment ordinarily turns on whether or not there genuine issues of material for trial. See, e.g., Quick v. Donaldason Co., 90 F.3d 1372, 1376-77 (8th Cir. 1996). Nevertheless, the court will not attempt here a comprehensive review of the undisputed and disputed facts in the record rather, the court will present here only sufficient factual background to put in context the parties' arguments for and against summary judgment on Wormper's dekemper's claims. More attention will be given to specific factual disputes, where necessary, in the court's legal analysis.

The parties agree that Wordekemper began his employment with WIHE in Carroll, Iowa, as a general laborer in September 1999. WIHE manufactured modular homes and hog confinements. On or about November 17, 1999, Wordekemper suffered a work-related back injury, which was ultimately diagnosed as a ruptured disc. Wordekemper underwent back surgery and was off work as a consequence for some weeks in late 1999 and early 2000. He returned to work in January 2000 with restrictions on hours and lifting. Eventually, he returned to full-time work, although the parties dispute whether his other temporary restrictions—for example, on lifting—had been entirely removed by late February 2000. Patrick Malloy, Darrell Hunt, and Joe Loneman, managers or supervisors for WIHE, and later for Midwest Homes, all testified that they had been told by Wordekemper or understood that Wordekemper's remaining work restrictions had all been lifted by late February. Wordekemper contends that, although he had returned to full-time work by that time, he was still subject to restrictions, never told anyone otherwise, and instead, indicated to his supervisors that he had a doctor's appointment scheduled for March 10, 2000, at which his restrictions would be reviewed.

In any event, WIHE was suffering from serious financial difficulties by February 2000. Lori Handlos, the sole proprietor of WIHE, was unable to negotiate satisfactory arrangements with WIHE's creditor, On-Site Credit Services, Inc., subsequently known as MIC Financial, Inc., and On-Site instituted a replevin action forcing WIHE out of business and Handlos into personal bankruptcy. WIHE's last full payroll was on March 3, 2000, although a handful of employees, including Wordekemper, received paychecks from WIHE on March 10, 2000, and an even smaller group of employees received paychecks for a few remaining hours on March 17, 2000. Wordekemper was apparently informed that his employment was terminated on March 10, 2000.

Apparently recognizing that WIHE's financial prospects were poor, Pat Malloy, a managerial employee of WIHE, sought out a long-time friend, Jeff Minnich, to see if he would be interested in investing in a business that would manufacture modular homes and hog confinements on the site then occupied by WIHE in Carroll, Iowa. Minnich was interested, but was not interested in "buying" either WIHE or its assets. Instead, Malloy and Minnich agreed that they would start a new business if WIHE did, indeed, fail. Malloy incorporated Midwest Homes on January 20, 2000. The shareholders of the new company were Minnich and his wife. Malloy was employed as the general manager of the new company, but did not have an ownership interest. Midwest Homes began operations on the same site that WIHE had occupied about March 4, 2000. However, there is no evidence in the record that Midwest Homes ever purchased any of WIHE's assets or in any way assumed any of WIHE's liabilities, although Midwest Homes may have "taken over" a few projects that WIHE had lined up, but clearly was not going to start or complete.

Prior to beginning operations, Midwest Homes hired the majority of WIHE's employees, including Lori Handlos. However, Handlos had no management responsibilities or ownership interest in the new company. During February 2000, before WIHE closed or Midwest Homes opened for business, Malloy recruited Joe Loneman and Darrell Hunt, both of whom were supervisors at WIHE, to be supervisors for Midwest Homes when it began operations. At some time in late February, Malloy, Loneman, and Hunt met to decide which of WIHE's employees should be hired by the new company, recognizing that Midwest Homes would not have enough work, at least initially, to employ all of WIHE's employees. The criteria used by Malloy, Loneman, and Hunt are subject to dispute—although the court will defer for now the question of whether that dispute is "genuine"—but there is no dispute that Wordekemper was not chosen as one of the employees of the new company.

Although Wordekemper, and a few other employees not selected for employment with Midwest Homes, continued to work on the site for approximately a week after Midwest Homes began operations, the defendants contend that those employees were completing projects for WIHE. Wordekemper contends that he was never notified that he was employed only by WIHE and only to completed certain projects. On the other hand there is no evidence that he was ever told that he had been chosen as an employee of Mudwest Homes. There is also no dispute that Wordekemper's final paychecks were from WIHE. not Midwest Homes, or that Wordekemper was eventually told, on about arch 10, 2000, that he had been terminated. Handlos told Wordekemper and his wife, when she called to complain about Wordekemper's termination, that WIHE was"out of business and couldn't continue to employ anybody. It is clear from the record that the manner in which employees were informed that WIHE was closing, that Midwest Homes was starting up as a separate company, which employees of WIHE would be employed by Midwest Homes, and which would not—and hence, who would be terminated...