                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-1200
                               Filed June 21,2017


MEGAN SEDLACEK,
    Plaintiff-Appellant,

vs.

THE UNIVERSITY OF IOWA and STATE BOARD OF REGENTS,
     Defendants-Appellees.
________________________________________________________________


       Appeal from the Iowa District Court for Johnson County, Marsha A.

Bergan, Judge.



       Megan Sedlacek appeals from the district court order granting summary

judgment in favor of the defendants on her claims of disability discrimination and

retaliation. AFFIRMED.




       Heather L. Carlson of McDonald, Woodward & Carlson, P.C., Davenport,

for appellant.

       Thomas J. Miller, Attorney General, and George A. Carroll and Tyler M.

Smith (until withdrawal), Assistant Attorneys General, for appellees.



       Considered by Vogel, P.J., and Doyle and McDonald, JJ.
                                           2


DOYLE, Judge.

       Megan Sedlacek appeals from the district court order granting summary

judgment in favor of the University of Iowa1 on her claims of disability

discrimination and retaliation.       She contends the district court erred in

determining the undisputed facts entitle the defendants to judgment as a matter

of law. Even when the facts are viewed in the light most favorable to Sedlacek,

we conclude she failed to generate a genuine issue of material fact regarding

whether she was a “qualified individual.” Because Sedlacek failed to meet that

requisite ground for her disability discrimination claim, the district court did not err

in granting summary judgment in favor of the University on Sedlacek’s disability

discrimination claim. Similarly, the district court did not err in granting summary

judgment in favor of the University on Sedlacek’s retaliation claim. Accordingly,

we affirm.

       I. Background Facts and Proceedings.

       The University of Iowa (University) hired Sedlacek in 2006 to work as a

custodian.    The University’s attendance guidelines sets forth the following

expectations:

               Facilities Management staff are expected to maintain a
       regular work schedule.        All staff members are expected to
       contribute their fair share toward accomplishing the work
       undertaken by the department. This is the basis on which they
       were initially hired and the basis upon which they are compensated.
       The department has work obligations and responsibilities and
       expects all staff members in the department to contribute in the
       performance of this work. Unless staff members are in attendance
       at work, they cannot fulfill their responsibility toward completing
       their fair share of the work.

1
 Sedlacek also named the Iowa Board of Regents as a defendant, but for simplicity, we
will refer to refer to the defendants collectively as the University.
                                           3



The guidelines provide that each employee’s attendance is reviewed on a

quarterly basis, and establish a standard of two occurrences and two days per

quarter as the threshold over which additional absences may be considered

excessive.2    Each recorded absence constitutes a day of absence.                 The

guidelines set out a system of seven steps of discipline for staff members who

experience excessive absence, beginning with a counseling session as the first

step and increasing to a five-day suspension as the sixth step. The seventh step

of the guidelines state the staff member’s employment with the University may be

terminated.

       A collective bargaining agreement also governed the terms of Sedlacek’s

employment at the University. With regard to leaves of absence without pay, the

agreement states in part:

               Section 3 Leaves of Absence Without Pay
               Except as otherwise provided in this Article, employees may
       be granted leaves without pay at the sole discretion of the
       Appointing Authority for any reason for a period of up to but not
       exceeding one (1) year. Upon request, the leave may be extended
       for not more than one (1) additional year.
               ....
               D. Medical Leaves of Absence
               1. Employees with at least one (1) year of seniority who have
       exhausted their sick leave benefits shall be granted an unpaid
       leave of absence not to exceed ninety (90) calendar days, provided
       the illness or injury exceeds ten (10) days and appropriate medical
       verification is submitted. Upon request of the employee, extensions
       may be granted for up to ninety (90) day increments not to exceed
       a total of one (1) year. Such leaves may not be unreasonably held.

2
   An “absence” is defined as any instance where a staff member is unable to work due to
illness, injury, or medically related disability (excluding exemptions for FMLA leave,
funeral leave, family caregiving leave, absences due to on-the-job-injuries, and any
absences of less than or equal to four hours). An “occurrence” is defined as a
continuous absence from work without interruption. Absence for multiple consecutive
work days constitutes one occurrence.
                                       4



      Sedlacek received a written reprimand for excessive absenteeism on

September 4, 2009, due to an unscheduled absence from work on August 7.

She received a one-day unpaid disciplinary suspension on September 15 for an

occurrence of unscheduled absences that occurred from August 24 through

September 4 and an unscheduled absence on September 14. When Sedlacek

missed work again on September 17, she received a three-day unpaid

disciplinary suspension beginning September 18.       Then, on September 24,

Sedlacek received a five-day unpaid disciplinary suspension after an

unscheduled absence on the day before.

      In December 2009, Sedlacek requested leave under the Family Medical

Leave Act (FMLA) to treat her depression. She provided a certification of a

serious health condition from her health care provider, Dr. Elizabeth Hickman.

Dr. Hickman indicated the condition commenced in late 2007 and its duration as

“intermittent/lifetime.” Specifically, Dr. Hickman stated Sedlacek may experience

episodes of depression “0-3 times per month” with each episode lasting “1-2

days.” Dr. Hickman verified that it is “medically necessary” for Sedlacek to miss

work during an episode of depression because it interferes with her ability to

think clearly and interact with her peers. The University approved Sedlacek for

FMLA leave.

      Between July and September 2010, Sedlacek had three occurrences of

being unable to work, missing a total of three days of work. On October 11,

2010, she received a letter stating that she had violated the work rule for

unexcused or excessive absenteeism. Sedlacek was placed on an additional
                                        5


five-day unpaid disciplinary suspension and was warned that “[f]uture work rule

violations    or     attendance      issues,     including     further    unpaid,

unapproved/unscheduled absences may result in further progressive discipline,

including possible suspension or termination.”

       On December 20, 2010, Sedlacek was absent from work again. Because

she had not accrued enough sick leave or vacation leave to cover her absence,

she had to use “unpaid, unapproved leave time.” On December 28, 2010, the

University terminated Sedlacek pursuant to its attendance policy.        However,

Sedlacek filed a grievance with the union, and the parties signed an agreement

that led to her reinstatement in an April 2011. The agreement provides “that any

absence without pay (AWOP) after the date of this agreement will constitute

grounds for the immediate termination of [Sedlacek]’s employment.”3           The

duration of the agreement, dated April 14, 2011, was eighteen months.

       Sedlacek did not have any disciplinary issues in the year that followed.

On her annual review for the period of April 22, 2011, though March 27, 2012,

Sedlacek’s supervisor noted “[h]er attendance for the most part has been

respectable. She has not gone over the Departmental averages this past year.”

       On May 24, 2012, Sedlacek injured her back while emptying a wet/dry vac

during her work shift. As a result, she was off of work beginning June 5, 2012.

Sedlacek designated her absence as FMLA leave.           On July 30, 2012, the

University notified Sedlacek that she would exhaust her twelve weeks of FMLA

leave on August 14, 2012. The letter sent on that date states, “This letter is to


3
 The agreement also specifies that “for purposes of this agreement only, AWOP does
not include and absences covered by FMLA.”
                                          6


inform you that you will not be eligible for FMLA leave for the remainder of the

calendar year.”       Because Sedlacek’s physician indicated Sedlacek would be

unable to return to work prior to the exhaustion of her FMLA leave, the letter

informed her “on August 14, 2012, the paid leave used to supplement [her]

income automatically will change over from FMLA sick accruals to non-FMLA

sick accruals.” Sedlacek had no sick leave or vacation leave accrued as of the

date of the letter.

       Sedlacek’s treating physician released her to work four-hour shifts with a

lifting restriction of twenty-five pounds beginning September 26, 2012.           Her

physician released her to return to eight-hour shifts with a lifting restriction of no

more than thirty-five pounds beginning October 1, 2012. On October 8, 2012,

Sedlacek was absent from work due to her depression.              Because she had

exhausted her FMLA leave and had not yet accrued enough sick leave or

vacation leave to cover the full eight hours of her shift, four-and-one-half hours of

her shift was marked as unpaid time. As a result, the University terminated

Sedlacek on October 9, 2012 for violating the terms of the April 2011 settlement

agreement.

       Sedlacek filed an action alleging the University and the State Board of

Regents discriminated against her based on her disability and in retaliation for

engaging in statutorily-protected activity. The defendants moved for summary

judgment on both claims. In a thorough, thoughtful, and well-reasoned ruling, the

district court granted summary judgment in favor of the defendants. It is from

that ruling that Sedlacek appeals.
                                         7


       II. Scope and Standard of Review.

       The appellate courts review rulings on motions for summary judgment for

correction of errors at law. See Homan v. Branstad, 887 N.W.2d 153, 163 (Iowa

2016). If the moving party has shown there is no genuine issue regarding any

material fact, entitling the moving party to judgment as a matter of law, summary

judgment is appropriate.     See id.    Therefore, our review is limited to two

questions: (1) whether there is a genuine dispute regarding the existence of a

material fact and (2) whether the district court correctly applied the law to the

undisputed facts. See id. at 164.

       A fact is material if it may affect the lawsuit’s outcome. See id. There is a

genuine dispute as to the existence of a fact if reasonable minds can differ as to

how the factual question should be resolved.         See id.    “Even if facts are

undisputed, summary judgment is not proper if reasonable minds could draw

from them different inferences and reach different conclusions.” Walker Shoe

Store v. Howard’s Hobby Shop, 327 N.W.2d 725, 728 (Iowa 1982).

       In reviewing summary judgment rulings, we view the record in the light

most favorable to the nonmoving party. See Homan, 887 N.W.2d at 163-64.

This includes drawing all legitimate inferences that the record supports in favor of

the nonmoving party. See id. at 164. The nonmoving party is also given the

benefit of any doubt in determining whether granting summary judgment is

appropriate. See Butler v. Hoover Nature Trail, Inc., 530 N.W.2d 85, 88 (Iowa Ct.

App. 1994).
                                          8


       III. Disability Discrimination.

       Sedlacek alleges the University discriminated against her with regard to

her employment based on her disability.         The Iowa Civil Rights Act (ICRA)

prohibits discrimination in employment based on disability. See Iowa Code §

216.6(1)(a) (2013). To establish a prima facie case of disability discrimination,

Sedlacek must show: (1) she is a person with a disability, (2) she was qualified to

perform the job either with or without an accommodation for her disability, and (3)

she suffered an adverse employment decision because of her disability. See

Casey’s Gen. Stores, Inc. v. Blackford, 661 N.W.2d 515, 519 (Iowa 2003). If

Sedlacek fails on any one ground, her claim of disability discrimination fails. The

district court found that Sedlacek’s claim fails on all three grounds.

       A. Whether Sedlacek is a qualified employee.

       Since it is dispositive of the disability discrimination claim issue, we begin

our analysis with the “qualified individual” element of the claim. Sedlacek argues

the district court erred in finding she failed to provide any evidence to show she is

a qualified employee under the ICRA. A qualified employee is one who can

perform the essential functions of a position with or without reasonable

accommodation. See Goodpaster v. Schwan’s Home Serv., 849 N.W.2d 1, 14

(Iowa 2014).

       The district court held that even if Sedlacek was a person with a disability

under the ICRA, she could not generate a fact question as to whether she was

qualified to perform her job at the University, with or without accommodation. It

noted that Sedlacek admitted she had difficulty meeting the attendance

requirements of the position from the time she was hired until the time she was
                                        9


terminated, and cited the testimony of University representatives regarding

Sedlacek’s failure to meet the attendance expectations for her position. Citing

Brannon v. Luco Mop Co., 521 F.3d 843, 849 (8th Cir. 2008), the district court

stated the obvious—that “regular attendance at work is an essential function of

employment.”

              In Iowa, chronic absenteeism prevents a person from
      performing the essential function of regularly attending work.
      Falczynski [v. Amoco Oil Co.], 533 N.W.2d [226,] 232 [(Iowa 1995)].
      Other jurisdictions agree that attendance is an essential function of
      most jobs. Cf. Wimbley v. Bolger, 642 F. Supp. 481, 485 (W.D.
      Tenn.1986) (one who does not come to work cannot perform any of
      his job functions, essential or otherwise); Carr v. Reno, 23 F.3d
      525, 529 (D.C. Cir. 1994) (regular attendance is an essential
      function of a job); Santiago v. Temple Univ., 739 F. Supp. 974, 979
      (E.D. Pa. 1990) (an employee of any status cannot be qualified for
      his position if he is unable to attend the workplace, because
      attendance is necessarily the fundamental prerequisite to job
      qualification). In Tyndall, the United States Court of Appeals for the
      Fourth Circuit held:
              An employee who does not come to work cannot
              perform any of [her] job functions, essential or
              otherwise. Therefore, a regular and reliable level of
              attendance is a necessary element of most
              jobs. . . . An employee who cannot meet the
              attendance requirements of the job at issue cannot be
              considered a “qualified” individual protected by the
              ADA.
      Tyndall [v. Nat’l Educ. Ctrs. Inc. of California], 31 F.3d [209], 213
      [4th Cir. 1994)] (emphasis added) (citations omitted).
              Irregular attendance “renders a person unqualified for most
      types of employment and thus susceptible to legitimate
      termination.” Falczynski, 533 N.W.2d at 232; see also Kinkead v.
      Southwestern Bell Tel. Co., 49 F.3d 454, 456 (8th Cir. 1995)
      (excessive absenteeism qualifies as a legitimate, nondiscriminatory
      reason for plaintiff’s termination). In Higgins v. Iowa Department of
      Job Service, 350 N.W.2d 187, 192 (Iowa 1984), we held that
      habitual tardiness or absenteeism, particularly after warning that
      termination may result if the practice continues, is grounds for one’s
      disqualification. Higgins, 350 N.W.2d at 192.

Cole v. Staff Temps, 554 N.W.2d 699, 705 (Iowa 1996).
                                         10


       The district court held Sedlacek’s

       proposed accommodation, i.e., that she should have been
       permitted to work less, despite the fact that from 2006 to 2012,
       [Sedlacek] missed all or part of 356 work days, or around five work
       days per month simply is not an accommodation that would allow
       [her] to perform the essential functions of the job, either before or at
       the time of her termination. As the Brannon Court has pointed out,
       regular attendance at work is an essential function of employment,
       and the U of I Custodian I position required regular attendance as
       part of the job requirements. [Sedlacek] was given multiple
       opportunities to improve her attendance numbers, and she
       remained unable to establish a reliable and regular attendance
       pattern. When [Sedlacek] missed work so often, it affected the
       working requirements and environment of the other custodians in
       the group in which [she] worked. [Sedlacek] cannot show that a
       reasonable accommodation was possible, or that the
       accommodation would have allowed [her] to perform the essential
       functions of the job.

       Brannon involved a disability-discrimination claim arising from an

employee’s termination after an extended absence from work due to toe surgery.

521 F.3d at 845. The employee informed her employer on March 16, 2005, that

she expected return to work on April 18. Id. On April 12, the employee provided

her employer with a new return-to-work date of April 26. Id. Then, on April 26,

she informed her employer she would be returning to work on May 23. Id. The

employer terminated the employee on April 26 due to her extended absences

and deficient work quality, citing the strain it caused on the employer’s ability to

meet its production requirements. Id. In affirming the district court’s grant of

summary judgment in favor of the employer, the Eighth Circuit found that the

employee failed to “to show that her request for additional medical leave was a

reasonable accommodation that would permit her to perform the essential

function of regular work attendance.” Id. at 848. The court noted that the ADA

does not require employers to allow their employees unlimited absences and that
                                          11


the employee failed to show that receiving additional time off would have enabled

her to have consistent attendance at work. Id. at 849.4

       Brannon does not hold that an absence is never a reasonable

accommodation, however. Although the court held an employee’s open-ended

absence was not a reasonable accommodation under the facts of that case, it

noted that “allowing a medical leave of absence might, in some circumstances,

be a reasonable accommodation.” Id.; see also Hudson v. MCI Telecommc’ns

Corp., 87 F.3d 1167, 1169 (10th Cir. 1996) (stating that “a reasonable allowance

of time for medical care and treatment may, in appropriate circumstances,

constitute a reasonable accommodation”). The question turns on the expected

duration of the employee’s impairment. See Cisneros v. Wilson, 226 F.3d 1113,

1130 (10th Cir. 2000), overruled on other grounds by Bd. of Trs. of Univ. of Ala.

v. Garrett, 531 U.S. 356 (2001).           As the Cisneros court explained, an

accommodation is reasonable if it allows an employee to perform the essential

functions of the job at the present or in the near future. See id. at 1129. A

request for indefinite leave cannot constitute “reasonable” accommodation

because it does not allow the employee to perform the essential functions of the

job in the near future. See id. Likewise, a request for indefinite leave prevents

an employer from determining whether the employee will be able to perform the

essential functions of the job in the near future and, accordingly, whether the

accommodation is reasonable. See id. at 1130. For that reason, an employee

4
  Because the IRCA and the ADA have common purposes of prohibiting disability
discrimination and share similar terminology, the Iowa Supreme Court has “look[ed] to
the ADA and underlying federal regulations in developing standards under the IRCA for
disability discrimination claims.” See Bearshield v. John Morrell & Co., 570 N.W.2d 915,
919 (Iowa 1997).
                                       12


who fails to provide any evidence regarding the expected duration of impairment

fails to create a triable issue of fact regarding the reasonableness of the

requested leave. See id.

       The evidence shows that Sedlacek was able to perform the essential

duties of her job when she was not experiencing an episode of depression.

When experiencing a flare-up, Dr. Hickman noted that Sedlacek would be unable

to perform the essential functions of her job for a period of one to two days.

Afterward, Sedlacek was able to return to work and perform the essential

functions of her position. Because Sedlacek’s requested accommodation is in

reality a request for open-ended intermittent absences for an indefinite period of

time, the requested accommodation is not reasonable. Sedlacek has failed to

generate a fact question as to whether she could perform the essential functions

of her position with or without reasonable accommodation. The district court

correctly ruled that, as a matter of law, Sedlacek’s requested accommodations

would not render her “qualified.”

       IV. Retaliation.

       Sedlacek alleges the University discharged her in retaliation for her

engaging in protected activities—her requesting reasonable accommodations for

her disability and requesting that the University engage in an interactive process

to determine reasonable accommodations. The ICRA also prohibits “retaliat[ing]

against another person in any of the rights protected against discrimination by

this chapter because such person has lawfully opposed any practice forbidden

under this chapter.” Iowa Code § 216.11(2). To establish a prima facie case of

retaliation under the ICRA, Sedlacek must show she was engaged in a statutorily
                                       13


protected activity, the University took adverse employment action against her,

and a causal connection between her participation in the protected activity and

the adverse employment action. See Boyle v. Alum-Line, Inc., 710 N.W.2d 741,

750 (Iowa 2006). Sedlacek alleges the adverse employment action was her

termination and the protected activity she participated in was requesting

accommodation for her disability. Once a prima facie case has been established,

the burden shifts to the University to rebut a presumption of retaliation. See

Estate of Harris v. Papa John’s Pizza, 679 N.W.2d 673, 678 (Iowa 2004).

      Sedlacek provided the University with a doctor’s certification that her

disability prevented her from working one to two days during flare-ups, which

could occur up to three times per month. After a workers’ compensation injury

exhausted Sedlacek’s FMLA leave, she requested additional leave or unpaid

time off to accommodate her disability.      Janet Gorman, who provides the

University with guidance and direction on disability matters related to

employment and the accommodation process, testified that when employees

need more leave from work than their vacation leave and sick leave accruals

allow, “they can apply for an unpaid leave of absence, and the unpaid leave of

absence is considered to be an accommodation by the department or the

employer to allow someone to recover and return to work.” Sedlacek requested

that the University apply four-and-one-half hours of unpaid leave to her absence

on October 8, but her request was denied.       Gorman explained that whether

unpaid leave is a reasonable accommodation depends on “how much time does

an employee need to be absent in order to recover and return to work regularly

and consistently,” but in her opinion, “it is not reasonable to [provide employees
                                           14


with] intermittent unpaid leave.”         The University opted to terminate her

employment.

       In granting summary judgment in favor of the University on Sedlacek’s

retaliation claim, the district court found:

               Even when the facts are viewed in the light most favorable to
       [Sedlacek], she simply cannot show any evidence of an adverse
       employment action taken by [the University] against [her] that is
       causally connected to [her] right to participation in a protected
       activity. [The University] took every reasonable step to make
       [Sedlacek]’s employment as a Custodian I work out for [Sedlacek],
       and [Sedlacek]’s inability to meet the attendance requirements of
       the position was the basis for the termination. There is no evidence
       in the record to support a finding of retaliatory action on the part of
       [the University] against [Sedlacek].

We agree as the record supports the district court’s conclusion. Sedlacek has

failed to generate an issue of material fact as to whether her termination was in

retaliation for her engaging in protected activities.

       The district court made no error in granting summary judgment in favor of

the University regarding Sedlacek’s retaliation claim.

       AFFIRMED.
