                   IN THE COURT OF APPEALS OF IOWA

                                  No. 16-0462
                              Filed March 8, 2017


TIMOTHY FITZGERALD,
     Plaintiff-Appellant,

vs.

HY-VEE, INC. d/b/a HY-VEE and
RYAN ROBERTS, Individually,
     Defendants-Appellees.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Jeffrey Farrell, Judge.



      Timothy Fitzgerald appeals from a district court’s ruling granting summary

judgment in favor of Hy-Vee, Inc. and Ryan Roberts. AFFIRMED.




      Megan C. Flynn and Michael J. Carroll of Coppola, McConville, Coppola,

Carroll, Hockenberg & Scalise, P.C., West Des Moines, for appellant.

      Kermit B. Anderson of Finley Law Firm, P.C., Des Moines, for appellees.




      Heard by Mullins, P.J., and Bower and McDonald, JJ.
                                         2


MULLINS, Presiding Judge.

        Timothy Fitzgerald appeals from a district court’s ruling granting summary

judgment in favor of Hy-Vee, Inc. and Ryan Roberts. He asserts the district court

erred (1) by failing to view the facts in the light most favorable to him, the

nonmoving party; (2) in its analysis of his prima facie case of discrimination and

in holding he had failed to create a fact issue as to pretext; and (3) by holding his

failure-to-accommodate claims were time-barred. We affirm.

        I.       Background Facts and Proceedings

        Fitzgerald began working for Hy-Vee as a night stocker in December

1989.        He held many positions with Hy-Vee over the years, but, in 2003,

Fitzgerald became a manager in the international food service department, a

position he held until his discharge in 2012.

        In July 2011, Fitzgerald suffered a knee injury and underwent surgery to

repair a torn meniscus and scarred cartilage.       From July 21, 2011, through

September 25, 2011, Fitzgerald was on leave, pursuant to the Family and

Medical Leave Act (FMLA), for his knee surgery and recovery.              Fitzgerald

returned to work in late September with a restriction that he was to sit as needed

for pain and swelling. Fitzgerald claims he gave the doctor’s note to the store’s

manager of operations, Katie Good. Good testified in her deposition that she

was not aware of Fitzgerald’s restrictions.

        Roberts was the store director at the Hy-Vee location where Fitzgerald

worked. The store director is the highest management employee at each store

and oversees all store operations, including decisions regarding employment.
                                         3


        Soon after Fitzgerald returned, Roberts called Fitzgerald to his office to

discuss a disparaging remark about a coworker that Fitzgerald had allegedly

made.    According to Fitzgerald, Roberts told Fitzgerald his department could

“operate without him.”      In a subsequent meeting, Roberts allegedly told

Fitzgerald he had treated his FMLA leave like a “vacation,” and if Roberts had

been the one on leave, he still would have come into the store “two or three times

per week” while recuperating. Roberts denied or did not remember making these

remarks to Fitzgerald.      However, Roberts testified he remembered telling

Fitzgerald several employees had made complaints about Fitzgerald upon his

return when there had been no complaints while he was on leave.

        Fitzgerald also claims that, in early October, Roberts passed Fitzgerald on

the sales floor, saw him limping, and asked him how he was doing. Fitzgerald

informed Roberts he was in a lot of pain, and Roberts allegedly suggested to

Fitzgerald that he should get stronger pain medications and a second opinion

regarding the swelling of his knee. In mid-October, Roberts asked Fitzgerald to

cut staff hours from his department and, as a result, Fitzgerald was required to

perform more physical work and stand for long periods of time without resting.

Fitzgerald told Roberts he was already in pain and the new requirements were

too physically demanding for him. Roberts allegedly responded, “That’s between

you and your doctor.” At his deposition, Roberts did not recall the first incident

but agreed he had asked Fitzgerald to cut staff hours and reduce labor costs.

Roberts did not remember Fitzgerald making complaints about his injury.

        Thereafter, Fitzgerald went to see his psychotherapist, who instructed

Fitzgerald to take two weeks off of work and consider filing a harassment
                                          4


complaint against Roberts. On this advice, Fitzgerald spoke with Randi Powell in

Hy-Vee’s human resources department and filed an internal complaint against

Roberts. According to Fitzgerald, Powell informed him there had been previous

complaints made against Roberts.           Consequently, Hy-Vee conducted an

investigation of Roberts and placed Fitzgerald on leave for two weeks. Roberts

was aware Fitzgerald had filed a complaint against him and testified he was not

upset with Fitzgerald but, rather, disappointed Fitzgerald had not communicated

his complaints to Roberts directly.

       Before his leave ended in November 2011, Fitzgerald returned to Hy-Vee

to assist with preparation for a holiday celebration. Hy-Vee’s vice president of

operations, Laura Fulton, spotted Fitzgerald helping with the preparations and

told him that, if he had not been released to work by his doctor, he should not be

working in the store, even if he was volunteering. Fulton allegedly told Fitzgerald

the investigation of Roberts had revealed Roberts had issues he needed to work

on and Fulton intended to work with him on his issues.              Fulton also told

Fitzgerald he needed to take things “less personal” and maybe he was “overly

sensitive.” Fulton requested Fitzgerald bring in his work restrictions before he

returned to work.1 Fitzgerald obtained a new doctor’s note, which permanently

restricted him to sitting at least half of every hour. Fitzgerald claims he placed

the note on Roberts’s desk, which was customary for employees to do when

Roberts was not in his office. Roberts denied receiving the note or being aware



1
 The sequence of events in this paragraph is somewhat confusing in the record, but we
have chosen to recite them as set forth by Fitzgerald in his affidavit submitted in the
summary judgment proceedings.
                                       5


of Fitzgerald’s restrictions. Roberts also stated Fitzgerald never requested an

accommodation.

      Fitzgerald contends Roberts ignored his work restrictions, which caused

ongoing pain and swelling in his knee. Fitzgerald claims he did not make any

further complaints because he believed they would result in no action or an

adverse action for himself.   To deal with the pain and swelling in his knee,

Fitzgerald began abusing prescription pain medications and became addicted as

a result. When the pain medications became less effective, Fitzgerald started

abusing alcohol. Fitzgerald claims he complained about the pain and swelling in

his knee to his coworkers frequently and Roberts knew of his addictions because

Fitzgerald was required to disclose the medications he was taking to Roberts and

when his dosages increased. He further asserts his coworkers and managers

knew he was struggling with addiction because he was the subject of running

jokes among his coworkers for his odd behavior, including his “overly

enthusiastic use of the intercom system to make store announcements.”

Additionally, in Fitzgerald’s January 2012 performance review, Roberts wrote:

“Tim, [w]hen you are on, there is no one that can match your abilities. Be more

consistent with this. You have days where its clear you are struggling. Let me

know what I can do to help you with this so we can move forward.” However,

Fitzgerald did not tell Hy-Vee or Roberts that he was addicted to pain

medications or alcohol and did not ask for help related to his addictions until

August 31, 2012.

      On August 30, 2012, Fitzgerald was talking to another employee near his

department on the sales floor. During their conversation, Fitzgerald referred to
                                       6


another food service manager, Suzanne Obermeier, as a “cunt,” loud enough for

Obermeier to overhear what was said.2 Fitzgerald asserts he and Obermeier

were managers of departments in close proximity to one another and had had

differences about sharing workspace but, overall, he got along with Obermeier

and never had any problems. Obermeier was greatly offended by Fitzgerald’s

comment and reported it to Rusti Subject, who was the manager of perishables

and the direct supervisor of Fitzgerald and Obermeier.

      The following day on August 31, Subject reported the incident to Roberts

who had been out of the store most of the week helping set up for a local event.

At Roberts’s request, Subject confronted Fitzgerald about the comment and

another complaint by Obermeier that Fitzgerald had called her a “bitch” that

morning. Obermeier was so upset about Fitzgerald’s comments she threatened

to quit. Fitzgerald admitted to Subject the first occasion of using an offensive

reference to Obermeier but denied the second one. Fitzgerald also stated he

had been joking and did not know his comment had offended Obermeier.

Fitzgerald claims he apologized to Obermeier and believed the matter was

settled. After Subject spoke with Fitzgerald and confirmed the first comment had

been made, he relayed the information to Roberts, who contacted the Hy-Vee

corporate office about the incident. Later that day, Roberts and Linda Threlkeld,

the assistant vice president of human resources, met with Obermeier and

Subject separately at the store.     Obermeier confirmed both incidents had

occurred and that she was upset about them. Subject also confirmed at least the


2
 The parties dispute which employee Fitzgerald was speaking with at the time.
However, there is no dispute the comment was made to a coworker.
                                         7


first incident and stated Fitzgerald had told him it was a bad joke. Roberts and

Threlkeld determined Fitzgerald had violated the company’s anti-harassment

policy, which defines discriminatory harassment to include “verbal . . . conduct

that degrades, offends, is negative toward, and/or shows hostility toward an

individual because of the individual’s . . . sex.” The policy further provides any

violation “may result in discipline, up to and including discharge.” Roberts and

Threlkeld then called Fitzgerald in to discuss the incidents.

       During the meeting, Fitzgerald admitted the first incident but again denied

the second. He told Roberts and Threlkeld his comment about Obermeier had

been a joke. Roberts and Threlkeld informed Fitzgerald he had violated Hy-

Vee’s anti-harassment policy and his employment was terminated. Fitzgerald

pleaded with Roberts in an attempt to save his job and disclosed he had made

the comment because he was addicted to pain medication and alcohol and

needed treatment. According to Roberts, that was the first time Fitzgerald had

mentioned any drug use or addictions. At Fitzgerald’s unemployment insurance

appeal hearing in May 2013, he testified it was only after the incident with

Obermeier that he realized he had a “problem.” Roberts, Subject, and Good all

testified there was no indication that Fitzgerald was suffering from alcoholism or

an addiction to pain medications.

       Hy-Vee and Roberts contend Fitzgerald’s employment was terminated

during this August 31, 2012 meeting. They assert Fitzgerald became upset and

asked if he could transfer to another store, and they responded it would be up to

the directors at other stores whether to hire Fitzgerald. Threlkeld allegedly told

Fitzgerald his termination would not be processed until the following Monday
                                          8


after the pay period ended and Fitzgerald was paid the vacation he was owed for

the holiday. Hy-Vee and Roberts claim they informed Fitzgerald that he could

transfer but it was made clear to him that his employment at that location was

terminated as of August 31, 2012. Fitzgerald claims Roberts made a phone call

for Fitzgerald during the meeting to ask about a transfer for Fitzgerald to another

store.    Fitzgerald also claims he believed his job was spared based on the

statements that his termination would not be immediately processed and he

could transfer to another store. He contends Roberts and Threlkeld did not give

him a timeframe for when his termination paperwork would be processed or even

that it would be processed at all.

         Text messages between Fitzgerald and Roberts that evening reveal

Roberts notified Fitzgerald of different openings at nearby stores and wished him

luck in finding a transfer. Fitzgerald responded, “Thankyou for your support,

sorry I put you though this. I hope it strengthens me.” Fitzgerald also wrote: “We

take so much for granted, please tell staff it was an issue with my health? I

don’t.want.to leave disgraced, its still my home.”       The following morning,

Fitzgerald sent Roberts a text stating: “Ryan, yesterday afternoon was a haze? I

need clarification. . . . . When Linda said she wouldn’t term me, does that mean I

can transfer if the opportunity arises.? So I don’t [lose] health care? . . . I’m

asking because theirs an opening for.a full time kitchen clerk at [another store].”

Roberts responded, “That’s right. I will not term right away in case you are able

to transfer.” Other messages indicate Roberts’s willingness to put in a good word

for Fitzgerald with the directors of the other stores.
                                        9


      Roberts completed a termination report for Fitzgerald dated August 31,

2012. Subject completed a similar report dated September 1, 2012. Roberts

testified in his deposition that he formally processed Fitzgerald’s termination

paperwork on Monday, September 3, 2012. The following day on September 4,

Fitzgerald contacted Roberts to request leave under FMLA, having visited his

psychotherapist over the long weekend who recommended Fitzgerald seek

treatment for his addictions before transferring to another store. Roberts denied

Fitzgerald’s request stating his employment had already been terminated.

Fitzgerald submitted his FMLA paperwork to Subject anyway.

      On June 6, 2013, Fitzgerald filed a complaint with the Iowa Civil Rights

Commission (ICRC). In his complaint, Fitzgerald alleged Hy-Vee discriminated

against him due to his disability when it denied an accommodation and benefits

and terminated his employment. Fitzgerald identified his disability as “[a]lcohol

and chemical addiction” and “[j]oint issues in my knee which led to addiction and

abuse of pain killers.” Fitzgerald identified August 31, 2012, as the date his

employment was terminated.3         Fitzgerald stated he did not request an

accommodation because he feared reprisals.

      On September 4, 2014, Fitzgerald filed a petition in district court alleging

Hy-Vee and Roberts discriminated against him in violation of the Iowa Civil

Rights Act (ICRA), Iowa Code chapter 216 (2014), based upon his disabilities.

Fitzgerald complained Hy-Vee and Roberts discriminated against him “by

3
  However, in the brief summary of allegations, Fitzgerald asserted Roberts only
“attempt[ed] to terminate my employment” on August 31 and then told him he “could
transfer to another store.”   Fitzgerald asserted he contacted Roberts after his
appointment with his psychotherapist on September 4 to ask for leave under FMLA and
Roberts responded, “How can I do that? I terminated you.”
                                        10


terminating his employment because of his disability, by not accommodating his

known disability, and by harassing him because of the limitations placed upon

him as a result of his impairment.” Hy-Vee and Roberts answered, denying

Fitzgerald’s claims and asserting the affirmative defenses of timeliness and

jurisdiction.   On November 23, 2015, Hy-Vee and Roberts filed a motion for

summary judgment.       The court held a hearing on the motion for summary

judgment on January 19, 2016, at which Fitzgerald confirmed he was not

asserting a separate and discrete “harassment” claim, but rather, his only claims

were that Hy-Vee and Roberts discriminated against him by (1) terminating his

employment and harassing him because of his disability and (2) failing to

reasonably accommodate his disability. On February 9, 2016, the court granted

Hy-Vee and Roberts’s motion and dismissed the case. Fitzgerald appeals.

       II.      Standard of Review

       We review a district court’s grant of summary judgment for correction of

errors at law. See Goodpaster v. Schwan’s Home Serv., Inc., 849 N.W.2d 1, 6

(Iowa 2014).     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, 849 N.W.2d at 6. “[A] ‘factual issue is

“material” only if “the dispute is over facts that might affect the outcome of the

suit.”’” Peak v. Adams, 799 N.W.2d 535, 542 (Iowa 2011) (quoting Phillips v.

Covenant Clinic, 625 N.W.2d 714, 717 (Iowa 2001)).           “An issue of fact is

‘genuine’ if the evidence is such that a reasonable finder of fact could return a

verdict or decision for the nonmoving party.”      Parish v. Jumpking, Inc., 719

N.W.2d 540, 543 (Iowa 2006). “Speculation is insufficient to create a genuine
                                         11

issue of material fact.” Cemen Tech, Inc. v. Three D Indus., L.L.C., 753 N.W.2d

1, 5 (Iowa 2008). The burden is on the moving party to show the nonexistence of

a material fact. Pillsbury Co. v. Wells Dairy, Inc., 752 N.W.2d 430, 434 (Iowa

2008). “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)).

       In determining whether summary judgment is appropriate, the court shall

consider the pleadings, depositions, answers to interrogatories, admissions on

file, and affidavits. Iowa R. Civ. P. 1.981(3). We must view the facts “in the light

most favorable to the nonmoving party” and “draw all legitimate inferences the

evidence bears in order to establish the existence of questions of facts.” Jones

v. Univ. of Iowa, 836 N.W.2d 127, 140 (Iowa 2013) (quoting Pitts v. Farm Bureau

Life Ins. Co., 818 N.W.2d 91, 96–97 (Iowa 2012)).

       III.   Analysis

       Fitzgerald argues the district court erred in failing to view the facts in the

light most favorable to him. He also claims the court erred in its analysis of his

prima facie case of discrimination and in holding he had failed to prove Hy-Vee’s

reason for his employment termination was pretextual. Finally, Fitzgerald claims

the court erred in holding his failure-to-accommodate claims were time-barred.

              A.     Discrimination Claim

       Under the ICRA, it is “unfair or discriminatory” for an employer “to

discharge any employee, or to otherwise discriminate in employment against . . .

any employee because of the . . . disability of such . . . employee.” Iowa Code
                                            12


§ 216.6(1)(a). Fitzgerald has not presented direct evidence of discrimination;

therefore, we examine his claim of indirect evidence of discrimination under the

burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411

U.S. 792, 802–03 (1973),4 which first requires a plaintiff to establish a prima facie

case of discrimination, id. Once the plaintiff has established a prima facie case,

a rebuttable presumption of discrimination is created, and the burden shifts to the

defendant-employer to rebut the presumption by articulating a legitimate,

nondiscriminatory reason for its actions. Casey’s Gen. Stores, Inc. v. Blackford,

661 N.W.2d 515, 519–20 (Iowa 2003); see also Young v. Warner-Jenkinson Co.,

152 F.3d 1018, 1021 (8th Cir. 1998). If the employer proffers such a reason, the

presumption of discrimination disappears and the burden shifts back to the

plaintiff to demonstrate the nondiscriminatory reason asserted by the employer is

merely a pretext for intentional discrimination. Casey’s, 661 N.W.2d at 520; see

also Young, 152 F.3d at 1021.




4
  On appeal, Fitzgerald questions the application of McDonnell Douglas to disability
discrimination claims brought under the ICRA. As Fitzgerald acknowledges, Iowa courts
have repeatedly and frequently applied the McDonnell Douglas framework to cases
involving claims of employment discrimination. See, e.g., McQuistion v. City of Clinton,
872 N.W.2d 817, 829 (Iowa 2015); Wyngarden v. State Judicial Branch, No. 13-0863,
2014 WL 4230192, at *8 (Iowa Ct. App. Aug. 27, 2014). We are not at liberty to overturn
precedent of our supreme court, see State v. Miller, 841 N.W.2d 583, 584 n.1 (Iowa
2014) (acknowledging both the district court and the court of appeals had “properly relied
on . . . applicable precedent” and noting “it is the role of the supreme court to decide if
case precedent should no longer be followed”), nor are we inclined to in this instance,
see McQuistion, 872 N.W.2d at 828 (“Our legislature has impliedly indicated approval of
the use of the McDonnell Douglas test to address employment policies that potentially
discriminate against pregnant employees by mirroring language used in the analytical
approach applied in that case.”). Additionally, Fitzgerald failed to preserve error on this
issue. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental
doctrine of appellate review that issues must ordinarily be both raised and decided by
the district court before we will decide them on appeal.”).
                                         13


       In order to establish a prima facie case, Fitzgerald must prove “(1) he has

a disability, (2) he is qualified to perform the essential functions of the . . .

position, and (3) the circumstances of his termination raise an inference of illegal

discrimination.” Goodpaster, 849 N.W.2d at 6. The district court here concluded

Fitzgerald failed to demonstrate a prima facie case of discrimination based on his

claimed disabilities.     The court further found that, even if Fitzgerald had

established a prima facie case, Fitzgerald had not offered evidence to generate a

genuine issue of material fact on the pretext element of his claim.

       We need not examine whether Fitzgerald has established a prima facie

case of discrimination5 because Hy-Vee and Roberts have asserted a legitimate,

nondiscriminatory reason for terminating Fitzgerald’s employment—Fitzgerald

violated Hy-Vee’s anti-harassment policy and created a hostile work environment

when he referred to a fellow manager using a derogatory term while speaking

with another employee. See Jones, 836 N.W.2d at 148 (“We find it unnecessary

to resolve the question of whether [the plaintiff] has made out a prima facie case

of   discrimination”    because   the   defendant   “has   produced    a   legitimate

nondiscriminatory reason for [the plaintiff]’s termination and, accordingly, the

burden shifts to [the plaintiff] to show that the proffered reason is pretextual.”).

Consequently, the burden shifts to Fitzgerald to prove Hy-Vee and Roberts’s

proffered reason was pretextual. See id.

       Fitzgerald complains the district court did not view the evidence in the light

most favorable to him and actually omitted favorable evidence of discrimination.


5
  At summary judgment, Hy-Vee and Roberts did not contest the first two elements but
reserved the right to contest them if the claims proceeded to trial.
                                          14


Fitzgerald claims the court erred in finding his employment was terminated on

August 31, 2012, and his termination paperwork was formally processed on

September 3, 2012.         Fitzgerald also claims the court omitted evidence of

discrimination in its analysis, including statements Roberts made to Fitzgerald

upon his return from knee surgery in 2011, Fitzgerald’s internal harassment claim

against Roberts and Hy-Vee’s response, and Roberts’s failure to accommodate

Fitzgerald’s work restrictions.

         Fitzgerald does not, until his reply brief, assert a specific date upon which

his employment with Hy-Vee was terminated. Rather, he asserts that, in viewing

the facts in the light most favorable to him, the district court should have inferred

from the record that the termination did not occur on August 31, 2012.

         There is no dispute Fitzgerald was told on August 31 in his meeting with

Roberts and Threlkeld that his employment would be terminated because he had

violated the company’s anti-harassment policy but that his termination would not

be processed “right away” in case Fitzgerald was able to transfer to another

store.    Instead, the dispute concerns whether Roberts or Threlkeld informed

Fitzgerald they planned to process his termination the following Monday or even

at all. Fitzgerald asserts after he was told he was being terminated and brought

up his addiction issues, Roberts decided to spare his job and allow him to

transfer to another store.     Fitzgerald contends the date of his termination is

material “because Fitzgerald was actually terminated during the same

conversation in which he requested an accommodation for his drug/alcohol

addiction.”
                                        15


      In his affidavit, Fitzgerald acknowledges Roberts told him in the meeting

on August 31 that “I was being terminated” based on Fitzgerald’s creation of “a

hostile environment.” Fitzgerald states, “After being told I was being terminated, I

then raised my addiction issues as an explanation for my behavior the day before

and asked for help.” He claims after his disclosure of his addictions, Threlkeld

and Roberts asked him to leave the room. Upon his return, Roberts informed

Fitzgerald that he could transfer to another store but gave no timeframe by which

a transfer must be completed.       Fitzgerald contends he was never told his

termination would be processed at all, let alone the following Monday.           He

asserts he believed his job had been spared. He also asserts the text messages

between himself and Roberts show his employment was not terminated.             On

September 4, Fitzgerald contacted Roberts to discuss FMLA leave for his

addiction issues, and Roberts responded he could not grant Fitzgerald’s request

because his employment had already been terminated. Additionally, Fitzgerald’s

ICRC complaint provides the date his employment with Hy-Vee ended was on

August 31, 2012.

      Hy-Vee and Roberts assert Fitzgerald’s employment was terminated on

August 31, but they allowed him to apply for a transfer to another store over the

weekend before they processed the termination. Roberts, Subject, and Threlkeld

all testified Fitzgerald was terminated from employment on August 31. Roberts,

who was in charge of all employment decisions for the store where Fitzgerald
                                           16


worked, completed a termination report that listed Fitzgerald’s termination date

as August 31, 2012.6

       Based on the record before us, Fitzgerald has failed to “set forth specific

facts showing that there is a genuine issue for trial.” Iowa R. Civ. P. 1.981(5). In

his opening brief, Fitzgerald did not assert a date on which the termination

occurred, only that he has provided evidence to show his employment was not

terminated on August 31 as Hy-Vee and Roberts allege, but rather, “at some

point in the fall of 2012.” Fitzgerald cannot rely upon mere allegations that his

termination from employment occurred after August 31, 2012. See Hlubek, 701

N.W.2d at 95. Thus, the district court did not err in determining there was no

genuine issue of fact as to whether Fitzgerald’s employment was terminated on

August 31, 2012.7

       Fitzgerald also complains the district court concocted the fact that Roberts

formally processed his termination paperwork on September 3, 2012. Roberts

has consistently asserted he planned to formally process Fitzgerald’s termination

paperwork on Monday, September 3, 2012, at the end of the pay period because

Fitzgerald was owed vacation time for the holiday. In his deposition, Roberts

testified he did in fact process Fitzgerald’s paperwork on that day. We conclude




6
  Subject also completed a termination report for Fitzgerald dated September 1, 2012.
At the latest, Fitzgerald’s employment was terminated on September 4 when Roberts
informed him he could not accept his FMLA paperwork because his employment had
already been terminated.
7
  Furthermore, whether Fitzgerald’s employment with Hy-Vee was terminated on Friday,
August 31, 2012, or early the following week is immaterial because it does not affect the
outcome of the suit. See Peak, 799 N.W.2d at 542. As discussed below, Fitzgerald is
unable to demonstrate Hy-Vee’s articulated reason for his termination from employment
was pretextual.
                                       17


the district court did not err in determining as a matter of law that Roberts

formally processed Fitzgerald’s termination paperwork on September 3, 2012.

       We next consider whether Fitzgerald has demonstrated a genuine issue of

material fact to allow a reasonable jury to conclude Hy-Vee and Roberts’s reason

for terminating his employment was merely a pretext for intentional discrimination

based on his claimed disabilities. See Casey’s, 661 N.W.2d at 520; see also

Young, 152 F.3d at 1021. Fitzgerald does not contend the term he used to

reference Obermeier is not offensive or derogatory or that Hy-Vee did not have

the right to terminate his employment based on his use of the term when

referring to a coworker.

       Fitzgerald underwent surgery on his knee in July 2011. He went on FMLA

leave from July until late September 2011. He returned to work at Hy-Vee in late

September and continued to experience problems with pain and swelling.

Fitzgerald claims he notified Hy-Vee management of his work restrictions and

Roberts ignored them. He also claims Roberts made harassing comments to

him about his FMLA leave and knee injury. Subsequently, Fitzgerald filed an

internal harassment complaint against Roberts with Hy-Vee’s human resources

department, which conducted an investigation while Fitzgerald went on leave.

Hy-Vee determined Roberts was not unreasonable and Fitzgerald needed to take

things “less personal.” Fitzgerald was asked to bring in his work restrictions

when he returned from leave.      Fitzgerald claims he brought in an updated

doctor’s note when he returned in November 2011 and placed it on Roberts’s

desk and Roberts again ignored his restrictions. Fitzgerald asserts he did not

make any additional requests or complaints because he feared reprisals and
                                        18


believed any requests would simply be ignored by Roberts. He baldly contends

“[t]his evidence tends to show that the termination was motivated by Fitzgerald’s

disabilities.”

          Fitzgerald has always admitted he used a derogatory term to refer to

Obermeier while speaking with another coworker on August 30, 2012. He does

not deny Subject confronted him about the comment the following morning.

Fitzgerald further admits he was called into a meeting with Roberts and Threlkeld

on August 31 to discuss the incident and, after Fitzgerald confirmed it had

occurred, Roberts informed him his employment was being terminated because

he had violated the company’s anti-harassment policy and created a hostile work

environment. Additionally, Fitzgerald admitted at his unemployment insurance

appeal hearing that he was discharged for violating Hy-Vee’s anti-harassment

policy.    He also admitted he was aware his conduct violated the policy and

Hy-Vee’s code of conduct and had received training on workplace harassment

and prevention.      Consistent testimony by Roberts, Threlkeld, and Subject

“corroborate[s] the legitimate nondiscriminatory motivation” for Fitzgerald’s

termination that Roberts and Threlkeld provided to him on the day they learned

about the incident and told him he was being terminated. Jones, 836 N.W.2d at

148.

          Based upon our review of the summary judgment record, there is not a

genuine issue of material fact to support Fitzgerald’s claim that his employment

termination on August 31, 2012, was not based on his violation of Hy-Vee’s anti-

harassment policy.      Consequently, we find Fitzgerald has failed to present

“sufficient admissible evidence from which a rational trier of fact could find [Hy-
                                          19


Vee and Roberts’s] alleged reason[] for [his] termination [was] false” and that his

disabilities were the motivating factor in his termination. Smidt v. Porter, 695

N.W.2d 9, 15 (Iowa 2005); see also Morris v. Winnebago Indus., 936 F. Supp.

1509, 1524 (N.D. Iowa 1996) (noting pretext may be shown by “weaknesses,

implausibilities,    inconsistencies,   incoherences,   or   contradictions     in   the

employer’s proffered legitimate reasons for its action [such] that a reasonable

fact finder could rationally find them unworthy of credence, and hence infer the

employer did not act for [the asserted] non-discriminatory reasons” (second

alteration in original) (citation omitted)). Thus, the district court’s ruling granting

summary judgment in favor of Hy-Vee and Roberts on Fitzgerald’s discrimination

claim is affirmed.

               B.      Failure-to-Accommodate Claims

                       1.     Knee Disability

       Fitzgerald asserts his claim for failure to accommodate his knee disability

was timely and the district court erred in dismissing his claim. Iowa Code section

216.15(13) provides “a claim under [chapter 216] shall not be maintained unless

a complaint is filed with the [ICRC] within three hundred days after the alleged

discriminatory or unfair practice occurred.” Thus, the district court found that,

pursuant to section 216.15(13), “the alleged discriminatory conduct must have

occurred on or after August 10, 2012, for [Fitzgerald]’s claim to be timely.”

       Fitzgerald underwent surgery on his knee in July 2011. He returned to

work following the surgery in late September. He alleges he provided his work
                                        20


restrictions to Hy-Vee management in September and November 2011.8 He did

not make any other requests for accommodation for his knee injury. Fitzgerald

filed his complaint with the ICRC on June 6, 2013. Accordingly, the district court

determined Fitzgerald’s failure-to-accommodate claim based on his knee injury

was untimely because it had been filed with the ICRC more than three hundred

days after the alleged discrimination had occurred.

      Fitzgerald does not dispute his requests for an accommodation regarding

his knee injury were made in the fall of 2011 and that he did not make any

additional requests for an accommodation after November of that year. Instead,

he argues the denial of his requests—the alleged discriminatory or unfair

practice—continued from the time he first informed Hy-Vee management of his

restrictions until the time his employment was terminated. Thus, he contends,

the discriminatory or unfair practice occurred within the required three-hundred-

day limitations period and his complaint was timely.

      The district court examined the application of the “continuing violation”

doctrine with respect to Fitzgerald’s argument and rejected it. Fitzgerald does

not appeal the court’s rejection of the doctrine’s application in this case; rather,

he argues “that each time he was forced to work in violation of the restrictions

applicable to his surgically-repaired knee, a repeated discrete discriminatory act

occurred.”


8
  We assume without deciding this was a sufficient request for an accommodation. See
Schaffhauser v. United Parcel Serv., Inc., 794 F.3d 899, 906 (8th Cir. 2015) (“To
determine whether an accommodation for the employee is necessary, and if so, what
that accommodation might be, it is necessary for the employer and employee to engage
in an ‘interactive process.’ This interactive, accommodation-seeking process must be
initiated by the disabled employee, who must alert his employer to the need for an
accommodation and provide relevant details of his disability.” (citation omitted)).
                                         21

       In Farmland Foods, Inc. v. Dubuque Human Rights Commission, 672

N.W.2d 733, 741 (Iowa 2003), our supreme court adopted the “discrete acts”

approach and found “[e]ach discrete discriminatory act or event is separately

actionable, and a claim based on discrimination must be filed within the relevant

limitation period after the act occurred[,] . . . even when the discrete

discriminatory act relates to other acts alleged in a timely filed complaint.” “[I]f

there is no discriminatory act but only an effect of a past discriminatory act within

the limitations period, then the claim is time-barred.” Dindinger v. Allsteel, Inc.,

860 N.W.2d 557, 572 (Iowa 2015) (citing State ex rel. Claypool v. Evans, 757

N.W.2d 166, 171–72 (Iowa 2008)).

       The district court concluded “[a]ll circumstances arising after defendants

allegedly ignored plaintiff’s requests for accommodation were merely effects of

defendant’s earlier action rather than additional discrete discriminatory acts.”

The court reasoned, “Defendants did not ‘act,’ wrongfully or otherwise, each time

plaintiff worked without accommodation. Rather, at most, plaintiff was enduring

the consequences of defendants’ earlier alleged decision to not provide said

accommodation.” Likewise, we conclude each day that Fitzgerald continued to

work without an accommodation is not a “separately actionable” discriminatory

act but the continuing effect of an alleged past discriminatory act—Roberts and

Hy-Vee’s alleged denial of Fitzgerald’s request for an accommodation for his

knee injury. See id.; Claypool, 757 N.W.2d at 172; see also Tobin v. Liberty Mut.

Ins. Co., 553 F.3d 121, 130 (1st Cir. 2009) (“[T]he denial of a disabled

employee’s request for accommodation starts the clock running on the day it
                                          22


occurs. . . . [S]uch a denial is a discrete discriminatory act that . . . does not

require repeated conduct to establish an actionable claim.”).

       The record shows Fitzgerald filed a complaint with the ICRC more than

three hundred days after the alleged discriminatory act occurred. Accordingly,

the district court did not err in finding Fitzgerald’s failure-to-accommodate claim

for his alleged knee disability is time-barred.

                     2.     Chemical Addictions

       Fitzgerald claims the district court erred in finding his claim for failure to

accommodate his chemical addictions was untimely.           Fitzgerald contends he

requested an accommodation for his chemical addictions on September 4, 2012,

when he asked Roberts for FMLA leave. Fitzgerald also complains the court

erred in finding he was terminated from employment with Hy-Vee on August 31,

2012, and in finding Hy-Vee management did not know he was addicted to pain

medications and alcohol prior to his termination from employment.

       As noted above, Fitzgerald cannot rely upon mere allegations that his

termination from employment occurred on September 4, 2012. See Hlubek, 701

N.W.2d at 95. No reasonable jury could conclude Fitzgerald’s termination from

the store he worked at occurred on any date other than August 31, 2012. The

district court did not err in determining there was no genuine issue of fact as to

whether Fitzgerald’s employment was terminated on August 31, 2012.              Still,

regardless of what date Fitzgerald’s employment with Hy-Vee was terminated,

the fact is immaterial because Fitzgerald did not request an accommodation for

his chemical addictions until after he learned he would be terminated.
                                         23


       In a factually similar case in which an employee made a derogatory

comment about a coworker in violation of the company’s anti-harassment policy

while speaking with another coworker, the Eighth Circuit held the employee’s

request to stay in his current position, if considered a request for an

accommodation, “was untimely because it came after [the employee]’s

comment.” Schaffhauser v. United Parcel Serv., Inc., 794 F.3d 899, 906 (8th Cir.

2015). The court agreed with the district court’s conclusion that “liability is not

established where ‘an employee engages in misconduct, learns of an impending

adverse employment action, and then informs his employer of a disability that is

the supposed cause of the prior misconduct and requests an accommodation.’”

Id. (quoting Schaffhauser v. United Parcel Serv., 2014 WL 197684, at *1, *10

(E.D. Ark. Jan. 15, 2014)); see also Hill v. Kansas City Area Transp. Auth., 181

F.3d 891, 894 (8th Cir. 1999); Jones v. Nationwide Life Ins. Co., 696 F.3d 78, 90

(1st Cir. 2012) (“When an employee requests an accommodation for the first time

only after it becomes clear that an adverse employment action is imminent, such

a request can be ‘too little, too late.’” (citation omitted)); Halpern v. Wake Forest

Univ. Health Scis., 669 F.3d 454, 465 (4th Cir. 2012) (“[T]he law does not require

the [defendant] to ignore misconduct that has occurred because the [plaintiff]

subsequently asserts it was the result of a disability.”); Davila v. Qwest Corp.,

113 F. App’x 849, 854 (10th Cir. 2004) (“[E]xcusing workplace misconduct to

provide a fresh start/second chance to an employee whose disability could be

offered as an after-the-fact excuse is not a required accommodation under the

[Americans with Disabilities Act].”). Likewise, it is undisputed Roberts informed

Fitzgerald he would be terminated because of his comment about Obermeier
                                           24

before Fitzgerald disclosed his addictions to Roberts. Fitzgerald’s request for an

accommodation for his alleged chemical addictions was untimely, and we affirm

the district court’s decision as to this issue.

       IV.    Conclusion

       We conclude there is no genuine issue of material fact to support

Fitzgerald’s claim of discrimination. Further, we find the district court did not err

in finding Fitzgerald’s failure-to-accommodate claim for his alleged knee disability

was time-barred and his failure-to-accommodate claim for his alleged chemical

addictions was untimely. Accordingly, we affirm.

       AFFIRMED.
