                    IN THE COURT OF APPEALS OF IOWA

                                    No. 16-0183
                                Filed March 8, 2017


VICKI L. McCREA,
      Plaintiff-Appellant,

vs.

CITY OF DUBUQUE,
      Defendant-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Dubuque County, Thomas A.

Bitter, Judge.



       The plaintiff appeals from the district court’s ruling following a bench trial,

denying her claims against her employer, the City of Dubuque, for retaliation for

use of FMLA leave, retaliation for filing civil rights actions, and for failure to

accommodate. AFFIRMED.




       Emilie J. Roth Richardson of Roth Law Office, P.C., Dubuque, for

appellant.

       Les V. Reddick of Kane, Norby & Reddick, P.C., Dubuque, for appellee.



       Heard by Potterfield, P.J., and Doyle and Tabor, JJ.
                                         2


POTTERFIELD, Presiding Judge.

       Vicki McCrea appeals from the district court’s ruling following a bench trial,

denying her claims against her employer, the City of Dubuque, for retaliation for

filing complaints with the Iowa Civil Rights Commission (ICRC), retaliation for

taking time off work pursuant to the Family and Medical Leave Act (FMLA), and

failure to accommodate a disability.         McCrea maintains the district court

misapplied the law and made errors in its findings of fact. She asks that we

reverse the district court’s rulings on her claims and remand for the determination

of damages.

I. Background Facts and Proceedings.

       McCrea began working as a secretary for the City in 1990. She worked in

two other departments before being hired by the water department in 2003. In

her position with the water department, McCrea worked for Robert Green, the

water department manager, and her direct supervisor, Jacqueline Johnson, the

plant manager. This continued until McCrea was fired in June 2014.

       In May 2007, Randy Peck, the City’s personnel manager, wrote McCrea a

memo that stated, in part, “I know that your work performance is exemplary and I

commend you for the professional manner in which you carry out your

responsibilities.”

       Approximately a year later, McCrea received her first written reprimand.

On June 6, 2008, Green issued a written memo to McCrea. It stated, “The

purpose of this memorandum is to identify your unacceptable work performance.”

It listed a number of issues, including, “Reporting late to work, socializing on

personal cell phone, working on personal tasks at your desk, extended lunch
                                         3


breaks, and leaving work early.” It also stated that McCrea would be required to

fill out a daily activity worksheet and a telephone log, and to record her time “by

means of the time clock.” According to McCrea’s undisputed testimony, she was

only required to complete the tasks meant to remedy the stated issues until

September 2008. At a meeting with Green and Johnson in September, Green

“went through [her] log books. He was very happy with [her] performance, told

[her she] didn’t have to punch in and out anymore, that [she] didn’t have to log

her work.”

       In January 2012, Johnson wrote an “affidavit of character” for McCrea to

use in her divorce proceedings. In it, Johnson described McCrea as “a valued

employee of the city for over 20 years” and “very conscientious, dependable and

has always been enthusiastic to help take on special assignments such as

volunteering to help with presentations to school children as part of the Every

Child Every Promise initiative and being part of the Employee Recognition

committee.”1

       In 2012, McCrea both divorced—she separated from her husband in

January 2012 and the divorce was finalized in September 2012—and lost her

mother to cancer.     As the district court found, “Both of those events were

emotionally difficult for Vicki, and both caused her to spend some additional time

focusing on non-work matters. At some point in 2012, Vicki applied for FMLA

leave, and that request was granted.” The exact dates are unclear, but from her

testimony, it seems McCrea was on FMLA leave from February 7 until March 20,

1
  The record reveals Johnson and McCrea were friends at this time. The letter was for
use in her divorce proceedings and not written to support McCrea’s employment
situation.
                                        4


2012, while her mother was dying. Additionally, following her mother’s death in

early 2012, McCrea—who was an executor of her mother’s estate—took off a

number of Thursdays and Fridays in order to travel to the Quad Cities to deal

with her mother’s estate.

      Around the same time, McCrea would complain to Johnson that she felt

Green was ignoring her. She gave as an example that Green often did not or

would not say “good morning” to her. Green was also complaining to Johnson

about McCrea; Green told Johnson he was concerned about McCrea’s work

performance and how frequently she was away from work. Johnson told McCrea

about the comments Green had made and warned her that Green was watching

her on the building’s surveillance to see when she arrived and left work.

      McCrea scheduled a meeting with Peck to discuss the “communication

issues” she was having with Green. Peck advised her that she should bring the

issues to Green’s attention.

      Shortly thereafter, in August 2012, McCrea scheduled a meeting with

Green, Johnson, and Mike Brekke, a long-term City employee and the water

distribution supervisor. At the meeting, McCrea advised everyone that she had

“been to human rights and personnel again and they advised that [they] try to

work this out and communicate amongst ourselves to, you, know resolve the

issues.” According to McCrea, Green became angry at the meeting.

      In October 2012, Green and McCrea—along with some others—had a

meeting regarding “areas of concern” in McCrea’s work performance. Green

typed notes sometime after the meeting, but a written copy was never provided

to McCrea. However, the notes were admitted as an exhibit at trial. According to
                                          5


the notes and Green’s testimony, Green discussed McCrea’s work schedule at

the meeting because of the “several times” McCrea was five to twenty-five

minutes late arriving to work.     The notes then indicate McCrea was late on

October 31; November 2, 6, and 29; and December 18 and 21, 2012.

Additionally, McCrea was expected to take a thirty minute lunch break and thirty

minutes “to pick up the mail at city hall.” Green noted, “On several occasions,

she . . . left the facility at or about 11:30 a.m. for lunch and to pick up the mail at

City Hall and [had] not returned until 12:45-1:15 p.m.” He also asserted that

there were days McCrea did not stop by city hall to get the mail “though taking

the extra time allowed during her lunch break.” Green listed concerns about

McCrea’s use of her personal cell phone throughout the day and personal use of

City’s copier and fax machine, despite being told not to do so. He also asserted

that McCrea was both using an improper method for requesting time off (often

doing so the day of or simply writing him a note that she had left for the day

without getting approval before doing so) and that there were “discrepancies” in

her reporting of her hours to payroll.

       On January 7, 2013, Green sat down with the city manager, Michael Van

Milligen, for the purpose of requesting permission to fire McCrea.              Green

prepared a four-page memo detailing his reasons for requesting permission—

largely a copy of his notes following the October meeting. Van Milligen refused

to authorize the termination; he was concerned the incidents had not been

documented as they occurred. He told Green to document any incidents going

forward. Because of their friendship, Johnson told McCrea about the meeting

between Green and Van Milligen.
                                          6


       At that time, Johnson did not feel that McCrea should be fired. Johnson

testified, “Some of it was concerns about the disciplinary actions that Bob had—

Bob Green had wanted to take with Vicki, that I felt that they were a little stringent

because there was no written documentation to begin with.” Additionally, in early

January 2013, Johnson told the assistant city manager she had concerns Green

was dissatisfied with McCrea’s work but he was not actually telling McCrea about

the issues. Johnson indicated she thought there were other employees whose

work performance was worse, but who were not being noticed or disciplined, and

noted that Green personally did not like McCrea. Johnson also reported that

Green “exhibits bully behavior and actually says he likes to intimidate people.”

       The next day, January 8, 2013, McCrea sent Peck a letter, claiming her

work environment had “greatly impacted [her] anxiety issues over the past three

years.” She requested to transfer into an open position—account clerk—at the

water and resource recovery center “as an accommodation for [her] anxiety.” In

response, Peck requested a written statement from McCrea’s treating physician

describing her functional limitations as pertained to her position and “what, if any,

accommodations would allow [her] to perform the essential functions of [her]

position.” McCrea provided Peck a letter from her doctor, which stated:

              [McCrea] has no limitations in performing the essential
       functions outlined in the job description you provided [of her current
       position—secretary].
              Her health has been impacted by stress and anxiety this
       past year due to many variables in her life. She also reports that
       her work environment has contributed and increased her anxiety.
       This is due to the relationship between her department manager
       and herself. The increased stress and anxiety levels have led to a
       need to increase her medications and the amount of counseling
       she has been seeking.
                                         7


               Being in a negative work environment could impact the
       performance of any employee. [McCrea] is quite capable of
       performing every essential function outlined in her job description
       as she has done for the past 22 years with the city as long as she is
       not in this type of working environment

After receiving the letter from her doctor, Peck called McCrea and told her she

would not be receiving the requested transfer. According to his testimony, Peck

denied her request because her doctor had stated she had no limitations and

was capable of performing the essential functions of the job she was in.

       In August, Peck asked the IT department to run a report of McCrea’s

internet usage for the previous six months because Green felt that McCrea was

using an excessive amount of time on non-work-related websites.            Once he

received the report, Peck agreed that the use of the internet for non-work needs

was excessive, but no formal discipline action was taken against McCrea.

       In mid-August, while talking to Brekke, McCrea made a comment that “if

she goes down, everybody else is going down also.” Brekke spoke to Green

about the incident, who asked him to write a memo documenting what happened.

Brekke eventually did so in October 2013. The memo also noted that McCrea

was “distraught and emotional” when she made the comment, and “[h]er tone

and body language . . . was very out of line and threatening.” Brekke also stated,

“There have been times in the past [McCrea] has made comments to me that I

feel were out of line and borderline insubordinate.”

       Also in August, McCrea had a meeting with the assistant city manager and

reported that she was having the same issues with Green she had been having

in January. She reported she felt Green was looking for a way to fire her and

that she felt “she [was] being held to the letter of the law with policies but other
                                         8


employees [were] not.” McCrea also tried to set up a meeting with Peck to

discuss the “hostile work environment” she continued to experience.

       On September 10, 2013, McCrea filed her first complaint with the ICRC.

She claimed discrimination based on sex, her mental disability (anxiety), and

retaliation for complaining to the personnel department and city management

about her boss. She claimed she had been denied accommodations, the City

failed to hire her (based on the denied transfer request), and she had been

harassed.

       On September 27, Johnson and Green sent McCrea a memo

summarizing a discussion that had taken place two days earlier. It stated:

               At approximately 4:00 p.m. on Wednesday, September 25,
       2013, we had a discussion about the 2 hours leave time that you
       had taken on Friday, September 20, 2013. This time was
       requested at 8:25 a.m. on September 20, 2013 as two hours of
       vacation time for September 20, 2013. Since this request did not
       come to my attention until after you had left the facility at 2:00 p.m.
       on September 20, 2013, I was unable to approve your request;
       therefore, the time requested will be recorded as two hours of
       docked time.
               According to the Personnel Manual for Non-Bargaining Unit
       Employees, “If an employee is absent from work without proper
       authorization for part or all of a work day, such absence shall be
       without pay and shall be grounds for disciplinary action. Absence
       without authorization for a period of two (2) work days shall be
       regarded as a resignation.”
               Please be advised that vacation requests must be approved
       prior to the date and time of the requested absence.

       On December 5, Green and Johnson wrote another memo, which they

gave to McCrea in a meeting on December 6, 2013. Its stated purpose was “to

remind [her] of [her] responsibility in being punctual for work and the time allowed

for lunch and travel to City Hall to deliver and receive mail.” The memo listed

four dates in July, three in August, and one each in September, October, and
                                           9


December when McCrea was purportedly late for work. Additionally, it included

seven dates when McCrea “returned back from lunch/mail service late.” McCrea

was instructed to resume using the time clock to monitor her time. Additionally,

the memo warned, “Future incidents of a similar nature will result in disciplinary

action which could include termination of your employment.” McCrea disputes

that she was late on some of the listed dates. She also maintains there were

times she was late back from lunch and the city hall run due to traffic, being

delayed by a train, or being delayed at city hall because picking up the mail took

longer than the allotted thirty minutes.

        On December 11, McCrea was late to work in the morning.           McCrea

admits she was late but justified it by stating there was winter weather that

caused an accident on her route to work, which then delayed her. Because of

her tardiness, she was suspended from work without pay for one day.

       McCrea filed her second complaint with the ICRC on January 17, 2014,

primarily because of the one-day suspension without pay. She claimed she was

being disciplined at work as a result of filing her first complaint.

       On February 12, Green and Johnson made a change to the “operation

procedure,” whereby it was no longer part of McCrea’s job duties to “perform the

daily errands to city hall.” McCrea was still expected to “punch in and out for

[her] work shift and lunch break.” Other employees of the water department were

then required to make the daily city hall run; Green did not track how long the

errand took the other employees.

       The next day, McCrea filed her lawsuit in the district court.
                                             10


         On at least five occasions in March and April, Johnson sent McCrea

memos with requests for information—with copies provided to Green.             For

example, the March 17 memo stated:

                 In your emails dated March 11 and 14, 2014 you stated
         that you are being shunned by Bob [Green] and me and that the
         retaliatory hostile environment affects your symptoms. These
         are serious allegations. Please provide Bob and me with
         examples of our behavior that are making you feel shunned and
         creating a retaliatory hostile work environment.
                 Please provide this information ·to me by March 25, 2014.

         In an April 1 letter from her doctor to the City, the doctor provided that

McCrea was “under [her] professional care and [was] therefore unable to attend

work from 03/19/2014 through 04/01/2014 and is released to work on

04/02/2014.” McCrea was released with restrictions to work no more than four

hours on April 2 and 3, and no more than six hour per day April 7-11. The note

stated she could return to full-time hours on April 14.

         The City approved McCrea’s request for FMLA leave on April 3. The

same day, McCrea sent Johnson an email saying she believed the memos were

harassing and retaliatory, and that she was experiencing major anxiety because

of them.

         Johnson wrote McCrea another memo on April 3 and one more on April

15.2

         McCrea provided additional letters from her medical provider on April 18,

May 5, and May 20, restricting her hours. The first letter stated McCrea was

unable to work from April 1 through April 18 and was released to work on April

19, with limited hours for a short time thereafter. The second letter retroactively

2
    McCrea filed an amended petition at law on April 17, 2014.
                                           11


approved time off work, stating McCrea “ha[d] restrictions for work from

05/05/2014 through 5/20/2014” and was released to work on May 21. The final

letter provided work restrictions for McCrea from May 20 to June 6. She was to

be reevaluated again on June 6.

        It is unclear how many or which days McCrea worked between her

approval for FMLA leave and May 6. When she came into work on May 6, she

found several memos on her desk—possibly the ones written on April 3 and April

15.   There were also questions about twenty-five dollars in petty cash that

McCrea had already returned—with the entire program having already been shut

down.    After McCrea saw the memos on her desk, she confronted Green.

Coworkers testified McCrea was visibly upset, and at least one stated she was

crying at the time.       McCrea raised her voice at Green, stating, “This is

harassment. You need to back off or else. Leave me alone. You’ve been trying

to get rid of me for five years, just do it. Do you know what blood pressure is?”3

According to McCrea, she also stated to Green, “This is killing me.” McCrea then

stated that she was leaving for the day due to her anxiety.

        Between May 6 and June 5—the day she ultimately terminated from her

job with the City—no precautions or actions were taken against McCrea. She

was not suspended and her security badge was not taken. It does not appear

that McCrea ever returned to work between May 6 and June 5, but Johnson and

Green testified that she was still an employee at that time, and she had not been


3
 It is disputed whether McCrea stated “You need to back off” or “You need to back off or
else.” McCrea and at least one coworker testified she stated, “You need to back off.”
Green testified, and wrote in notes taken after the incident, that McCrea had stated, “You
need to back off or else.”
                                            12


told not to return.    The City had a written policy on “workplace threats and

violence,” which stated “threats, threatening behavior or acts of violence against

employees” “will not be tolerated.”          Additionally, “Any person who makes

substantial threats, exhibits threatening behavior, or engages in violence acts on

City property shall be removed from the premises as quickly as safety permits,

and shall remain off City premises pending the outcome of an investigation. The

City will initiate an appropriate response.”

       On May 30, Peck sent McCrea a letter asking her to meet with him at city

hall on June 5 to “discuss [her] performance.” On that date, Peck had a short

meeting with McCrea, where he handed her a letter stating she was being

terminated, effective that day.      The letter stated, in part, “You are an at-will

employee and can be terminated for any reason or no reason at all. Over the

last several years you have been insubordinate, failed to properly perform your

duties, created a hostile work environment and made threatening statements to

your supervisor.”

       The matter proceeded to a bench trial on October 13, 2015.4                 At the

beginning of the trial, McCrea voluntarily dismissed three of her six claims;

McCrea dismissed a claim of harassment, failure to hire, and disability

discrimination. The trial moved forward on the remaining issues of retaliation for

filing complaints with the ICRC, retaliation for using FMLA leave, and failure to

accommodate.5


4
  McCrea had filed a second amended petition at law on April 13, 2015.
5
  We note that a plaintiff does not have to prove an underlying discrimination claim in
order to be successful in establishing that she has been retaliated against for filing that
claim. See Boyle v. Alum-Line, Inc., 710 N.W.2d 741, 750 (Iowa 2006) (“[A] retaliatory
                                             13


       At trial, Peck testified that “ultimately [McCrea] was fired for threatening

her supervisor.” He admitted that no adverse actions were immediately taken

after the May 6 incident because they did not believe it was “imminent that

[McCrea] would deliver on that threat.” There had been an employee who had

made threats before and the City had followed the written policy in that instance.

       Green testified it was his understanding that McCrea was fired for

“[t]hreats in the workplace [and] insubordination.”

       Johnson testified that she agreed with Green that McCrea should be

terminated in June 2014.         She believed it was appropriate because “of the

threats that she made towards [Green] and her belligerent behavior in the

workplace and then not addressing any of the things that we had asked her to

address.”

       The district court issued its ruling in December 2015. “The court [was] not

at all convinced” by the City’s claims McCrea was fired due to “poor work

performance.”     Similarly, the court “[was] also not convinced” by “the City[‘s]

claims [McCrea] was fired because she threatened Robert Green.”6 However,

the court ultimately determined that each of McCrea’s claims failed. It ruled that

McCrea had failed to prove she had a disability, an element of the failure to

accommodate claim, and denied both of her retaliation claims.

       McCrea appeals.

discharge claim under both the ICRA and Title VII requires that the plaintiff prove three
elements, all of which are distinct from any claim of sexual harassment. . . . Even
though [the plaintiff’s] hostile-work-environment claim failed in the original trial, [the
plaintiff] still presented enough evidence to warrant a decision on her retaliatory
discharge claim.”).
6
  While the district court devoted much of its opinion to criticisms of the credibility of the
City’s witnesses, we read the opinion as finding McCrea failed to prove a prima facie
case.
                                         14


II. Standard of Review.

       We review discrimination claims tried to the court for correction of errors at

law. Lynch v. City of Des Moines, 454 N.W.2d 827, 829 (Iowa 1990). “The

district court’s findings of fact are entitled to the weight of a special verdict and

are binding on appeal if supported by substantial evidence.” Id.

III. Discussion.

       A. Retaliation under the Iowa Civil Rights Act.

       Title VII of the Civil Rights Act of 1964 was “designed to ensure equal

opportunity in employment for all, regardless of sex.” Estate of Harris v. Papa

John’s Pizza, 679 N.W.2d 673, 677 (Iowa 2004). The Iowa Civil Rights Act

(ICRA) was modeled after Title VII, so our courts “have consistently employed

federal analysis when interpreting the ICRA.” Id. at 677–78. “Nonetheless, the

decisions of federal courts interpreting Title VII are not binding upon us in

interpreting similar provisions in the ICRA.” Id. at 678.

       McCrea maintains the district court erred in its application of the law under

the ICRA and, in doing so, it wrongly determined the City did not retaliate against

her for filing complaints with the ICRC.      She asserts that because she filed

complaints with the ICRC, the City suspended her from work without pay, issued

meritless formal disciplinary actions, and then ultimately terminated her

employment.

       The district court ruled against McCrea’s retaliation claim, stating that

because she was unsuccessful in proving that she had a disability, she could not

sustain a claim for retaliation. This is an erroneous reading of the law. To

sustain a claim for retaliation, McCrea is not required to show that the conduct
                                          15

she opposed by filing her complaint was in fact discriminatory. See Hicks v. St.

Mary’s Honor Ctr., 90 F.3d 285, 292 (8th Cir. 1996). Rather, “the plaintiff ‘must

demonstrate a good faith, reasonable belief that the underlying challenged action

violated the law.’’”     Id. (citation omitted).    Because McCrea’s underlying

complaints were based on a good faith belief that she was being discriminated

against, we consider whether she can establish the prima facie case for

retaliation.

       To establish a prima facie case, McCrea has the burden to show: “(1) the

plaintiff engaged in protected activity; (2) the employer took adverse employment

action against the plaintiff; and (3) a causal connection between the protected

activity and the adverse employment action.”7 See Harris, 679 N.W.2d at 678.

Establishing the prima facie cause “is a minimal requirement that is not as

onerous as the ultimate burden to prove” retaliation. Smidt v. Porter, 695 N.W.2d

9, 14 (Iowa 2005). That being said, the “causal connection” requirement is a high

standard. See City of Hampton v. Iowa Civil Rights Comm’n, 554 N.W.2d 532,

535 (Iowa 1996). “[T[he filing of the [complaint] must be a substantial factor

prompting the termination.      In other words, the protection afforded by anti-

retaliatory legislation does not immunize the complainant from discharge for past

or present inadequacies, unsatisfactory performance, or insubordination.” Id. at

335–36 (quoting Hulme v. Barrett, 480 N.W.2d 40, 42 (Iowa 1992)).




7
   McCrea could also establish her claim by presenting direct evidence that the
termination of her employment was in retaliation. See Wilson v. City of Des Moines, 338
F. Supp. 2d 1008, 1026 (S.D. Iowa 2004). However, we note she has invoked the
burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–03
(1973).
                                         16


       “Establishment of the prima facie case in effect creates a presumption that

the employer unlawfully [retaliated] against the employee.” Texas Dep’t of Cmty.

Affairs v. Burdine, 450 U.S. 248, 254 (1981). Thus, “the burden shifts to the

[City] to offer a legitimate nondiscriminatory reason for the termination.” Smidt,

695 N.W.2d at 15.      “This is a burden of production, not persuasion, and no

credibility assessment is involved.” Id. “It is sufficient if the defendant’s evidence

raises a genuine issue of fact as to whether it discriminated against the plaintiff.”

Burdine, 450 U.S. at 254.

       “If the [City] offers a legitimate nondiscriminatory reason, [McCrea] must

show the [City’s] reasons was pretextual and that unlawful discrimination was the

real reason for the termination.” Smidt, 695 N.W.2d at 15; see also Burdine, 450

U.S. at 253 (“[S]hould the defendant carry this burden, the plaintiff must then

have an opportunity to prove by a preponderance of the evidence that the

legitimate reasons offered by the defendant were not its true reasons, but were a

pretext for discrimination.”).    “She may succeed in this either directly by

persuading the court that a discriminatory reason more likely motivated the

employer or indirectly by showing that the employer's proffered explanation is

unworthy of credence.” Burdine, 450 U.S. at 256 (citing McDonnell Douglas, 411

U.S. 804–05).

       While the City does not explicitly concede as such, it also does not dispute

that McCrea engaged in a protected activity when she filed complaints with the

ICRC on September 11, 2013 and January 17, 2014.                   See Iowa Code

§ 216.11(2) (2014) (providing it is “an unfair or discriminatory practice for . . .

[a]ny person to discriminate or retaliate against another person . . . because such
                                        17


person has lawfully opposed any practice forbidden under this chapter, obeys the

provisions of this chapter, or has filed a complaint, testified, or assisted in any

proceeding under this chapter” (emphasis added)); see also Fisher v. Elec. Data

Sys., 278 F. Supp. 2d 980, 993 (S.D. Iowa 2003) (stating “it is clear” that an

employee’s complaint about harassment “is a ‘protected activity’”). Similarly, the

City does not argue that the ultimate firing of McCrea from employment with the

City was not “adverse employment action.” See, e.g., Fisher, 278 F. Supp. 2d at

993 (considering termination as the adverse employment action). Rather, the

City maintains McCrea’s prima facie showing fails because she cannot establish

a causal connection between the two.

      In deciding whether a causal connection exists between the protected

activity and the adverse employment action, we consider a number of things.

First, “[a]n employee can establish a causal link between her protected activity

and the adverse employment action through ‘the time of the two events.’” Hite v.

Vermeer Mfg. Co., 446 F.3d 858, 866 (8th Cir. 2006) (citation omitted).         “A

pattern of adverse actions that occur just after protected activity can supply the

extra quantum of evidence to satisfy the causation requirement.” Id. (citation

omitted).   However, the “mere coincidence of time” “is rarely sufficient to

establish the causation element.” Id. We will also consider any discriminatory

comments made by the employer. Id. McCrea may “attempt to ‘shorten the gap

between her protected activity and the adverse action by showing that shortly

after she [engaged in the protected activity, the employer] took escalating

adverse and retaliatory action against her.’” Id. (alteration in original) (quoting

Kasper v. Federated Mut. Ins. Co., 425 F.3d 496, 503 (8th Cir. 2005)).
                                           18


       Here, McCrea has failed to establish a causal connection between the

filing of her complaints and the ultimate action of termination.               She filed

complaints on September 11, 2013 and January 17, 2014, however, she was not

fired until June 5, 2014—almost nine months after her first complaint.               See

Wallace v. Sparks Health Sys., 415 F.3d 853, 859 (8th Cir. 2005) (holding a one-

year lapse between the protected activity and the adverse employment action

was “insufficient to show, and in fact weakens the showing of, the required

causal link”); see also Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001)

(citing cases in which a three-month and fourth month periods were insufficient to

establish the causal link). In the meantime, she continued to work at the same

job, for the same pay.8 We acknowledge McCrea’s argument that the relative

inaction of the City before the filing of her first complaint in September 2013,

coupled with the City’s actions following the filing of her second complaint in

January 2014, demonstrated an escalating concern about McCrea’s work

performance, timeliness, and focus on personal matters following the second




8
  We acknowledge one of her duties was removed in February 2014, when McCrea was
told that she would no longer be “making the City Hall run” each day. This consisted of
leaving the office each day for one half-hour in order to take paperwork to City Hall. One
of the City employees testified it was taken away from McCrea because she was often
going over the allotted time to complete the task and it was believed someone else could
do it more efficiently. While McCrea certainly seemed to take this reduction in duties as
a slight, we do not believe this change constituted an adverse employment action, and
McCrea never pled it as such. See, e.g., Burlington N. & Santa Fe Ry. Co., 548 U.S. 53,
71 (2006) (stating “reassignment of job duties is not automatically actionable” and
“[w]hether a particular reassignment is materially adverse depends upon the
circumstances of the particular case, and ‘should be judged from the perspective of a
reasonable person in the plaintiff’s position, considering all the circumstances;’” and
holding reassignment was actionable where the new duties were “more arduous and
dirtier,” required fewer qualifications, and was considered a lesser job by other
employees).
                                         19


complaint.   However, this escalation is not causally connected to McCrea’s

protected activity.

       The documentation of the concerns increased after McCrea filed her

complaint, but the issues themselves were not new, and McCrea had been

counseled on the issues multiple times before.        Although McCrea contested

some of the dates that were listed in the various memos she received about

lateness (either in the morning or when returning from lunch), there were several

dates when she simply offered justification or excuses for why she was tardy.

Additionally, she admitted that she used her personal cell phone at work to deal

both with being the executor of her mother’s estate and her divorce. Several of

the issues Green raised with the city manager when he requested permission to

fire McCrea in January 2013—several months before she filed her first civil rights

complaint—were also issues in job performance that Green had warned Johnson

to be prepared to deal with when she joined the department (and began relying

on McCrea as a secretary) in 2007. Additionally, we find credible Johnson’s

testimony that McCrea’s performance fell off in 2012 to a larger-than-

documented degree.      According to both women, Johnson and McCrea were

good friends at the time, and Johnson testified,

               I felt sorry for her. She was going through a lot of turmoil in
       her life with her divorce and her mother passing away, her children.
       It just seemed like it was a lot of—a lot of stuff for somebody to tie
       on, and I felt compassion for her.

       While McCrea was suspended one day without pay in December 2013,

that was done as a result of her being late for work a few days after being given a

written warning involving future tardiness. At trial, McCrea offered an excuse or
                                          20


justification for her tardiness—winter weather and a resulting car accident that

delayed her—but she did not dispute that she was in fact tardy on the day in

question. Much of McCrea’s complaints about how she was being treated at the

office—things she invariably described as “retaliation”—involved the enforcement

of rules, though she maintains they were only enforced against her. “The anti-

retaliation provisions of Title VII and the ICRA do not . . . insulate an employee

from discipline for insubordination or ongoing violation of the employer’s policies

just because they occur after the plaintiff engages in protected activity.” Wilson

v. City of Des Moines, 338 F. Supp. 2d 1008, 1027 (S.D. Iowa 2004).

Additionally, we note that McCrea’s boss, Green, originally approached the city

manager requesting to fire McCrea in January 2013—before she filed any

complaints—for many of the same reasons for which she was ultimately fired in

June 2014. See Smith v. Ashland, Inc., 250 F.3d 1167, 1174 (8th Cir. 2001)

(finding the employee had failed to establish a causal connection where the

performance problems were noted by the employer prior to the protected

activity).   Many of Green’s behaviors and actions that McCrea described as

retaliatory or escalating at trial actually, according to the first complaint she filed

with the ICRC, began in 2008. McCrea reported to the commission:

               In about 2008 I started to notice that my boss, Bob Green,
        was having problems with my performance, taking time off work
        and watching me when I came and went from work. Among many
        complaints he voiced about, Mr. Green started accusing me of
        being late for work when in fact I was not late. Then he stopped
        communicating with me and started a very hostile work
        environment. In 2010, l received two write ups for issues that were
        patently false. These write ups were issued by Mr. Green. l
        contested the write ups because they were false.
                                         21


As the district court stated in its written ruling, “Poor treatment by an

unreasonable boss which is merely harsh, unjust, or rude is not, by itself, legally

actionable.    An employee must establish a legal cause of action in order to

successfully recover damages.” Here, because McCrea has not been able to

establish a causal connection between the protected activity and the adverse

employment action, we end the analysis of the prima facie case and this claim for

retaliation fails.

        B. Retaliation for Use of FMLA.

        Similar to her claim above, McCrea also maintains she suffered an

adverse employment action—termination—because she exercised her rights

under FMLA.

        The FMLA provides that “an eligible employee shall be entitled to a total of

12 workweeks of leave during any 12-month period” for various named reasons,

including “a serious health condition that makes the employee unable to perform

the functions of the position of such employee.”         29 U.S.C. § 2316(a)(1),

(a)(1)(D).    Employers are prohibited from retaliating against an employee for

exercising the rights given under the FMLA. 29 U.S.C. § 2615(a)(2); see also

Cooper v. Olin Corp., Winchester Div., 246 F.3d 1083, 1090 (8th Cir. 2001).

        Here, McCrea has the same burden to establish a prima facie case: “To

establish a prima facie case of FMLA retaliation, an employee must show that

she engaged in activity protected under the Act, that she suffered an adverse

employment action by the employer, and that a causal connection existed

between the employee’s action and the adverse employment action.” See Darby

v. Bratch, 287 F.3d 673, 679 (8th Cir. 2002).
                                       22


         McCrea had applied for, was approved to take, and had been on

intermittent FMLA leave at the time her employment was terminated in June

2014.9 She has satisfied the burden of the first two prongs. The fighting issue is

whether there is a causal connection between the two.         However, the only

argument McCrea has in support of her claim of retaliation is the timing of the

events. We are not convinced by this argument alone. Rather, these facts are

comparable to those in Sisk v. Picture People, Inc., 669 F.3d 896, 900 (8th Cir.

2012). In Sisk, the employee’s only evidence of a link between the two elements

was “the temporal proximity.” 669 F.3d 896, 900 (8th Cir. 2012). The Eighth

Circuit determined that the two months between when the employee was placed

on FMLA leave and her termination from employment was not sufficient to

establish the prima facie case. Id. Likewise, here, McCrea’s request for FMLA

leave was approved by April 3, 2014, and she was not fired until June 6, 2014—

approximately two months later. In Sisk, the employee maintained the court

should consider when she returned to work—only three days before

termination—rather than when she was first placed on FMLA leave, but the court

relied on previous precedent, stating, “[T]his court looks to the date an employer

knew of an employee’s use (or planned use) of FMLA leave, not the date it

ended.” Id. (citing Smith v. Allen Health Sys., Inc., 302 F.3d 827, 833 (8th Cir.

2002).




9
  McCrea complains the district court misunderstood her claim, finding no causal
connection between her 2012 FMLA leave and her June 2014 firing. We reach the
same conclusion using the 2014 FMLA leave.
                                       23


      With nothing else to connect the use of FMLA leave and the termination,

McCrea’s claim fails. See id. (“More than two months is too long to support a

finding of causation without something more.”).

      C. Reasonable Accommodation under ICRA.

      McCrea maintains the City failed to provide a reasonable accommodation

for her disability, as required by the ICRA. Specifically, she asserts the City’s

refusal to allow her to transfer to a vacant position, which she requested due to

her anxiety that was heighted by the issues in the workplace, was discriminatory

in nature.    She maintains the transfer would have been a reasonable

accommodation that would allow her to continue employment with the City.

      Because the ICRA “only pronounces a general prescription against

discrimination,” “we have looked to the corresponding federal statutes to help

establish the framework to analyze claims and otherwise apply our statute.”

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

also Iowa Code § 216.6(1). In order to establish a claim based on disability

discrimination under the ICRA, McCrea must make a prima facie case by

showing by a preponderance of the evidence that “(1) she has a disability, (2)

she was qualified for the position sought, and (3) the employment decision was

based on her disability.” See Schlitzer v. Univ. of Iowa Hosp. & Clinics, 641

N.W.2d 525, 530 (Iowa 2002).

      The ICRA defines “disability” as “the physical or mental condition of a

person which constitutes a substantial disability.”     Iowa Code § 216.2(5).

Similarly, the Americans with Disabilities Act (ADA) defines “disability” as “a

physical or mental impairment that substantially limits one or more major life
                                          24

activities of such individual”.   42 U.S.C. § 12102(2); see Bearshielf v. John

Morrell & Co., 570 N.W.2d 915, 918 (Iowa 1997) (noting that the definitions of

“disability” under the ICRA and ADA are similar). The term “major life activities”

is further defined as “functions such as caring for one’s self, performing manual

tasks, walking, seeing, hearing, speaking, breathing, learning and working.” Iowa

Admin. Code. r. 161-8.26(3).

         In order to show that she was qualified for the new position, McCrea must

establish she “could perform the essential functions of [her] job with or without

accommodation.” Schlitzer, 641 N.W.2d at 530 (alteration in original) (quoting

Boelman v. Manson State Bank, 522 N.W.2d 73, 76 (Iowa 1994)).                   “If an

employee’s ability to do her job depends on reasonable accommodation, the

employee must make a facial showing that reasonable accommodation was

possible.” Id. If she is able to do so, “the burden shifts to the employer to show

that the suggested accommodation was unreasonable or would constitute an

undue hardship.”     Id. While an employee can seek accommodation through

reassignment to another job with the employer, “[a]n employer is not required to

create a vacancy or otherwise create a job for a claimant.” Id. “The relevant time

for determining if a vacancy exists is said to be the time of discharge or other

adverse employment decision.” Id.

         Here, the district court found that McCrea’s anxiety, while an impairment,

did not rise to the necessary level of severity or interference with life activities to

constitute a disability. In other words, the court found that McCrea could not

prove the first prong of the prima facie case and ended its analysis there. We

agree.     We acknowledge that we are to “broadly construe” the ICRA “to
                                            25

effectuate its purposes.” See Goodpaster v. Schwan’s Home Serv., Inc., 849

N.W.2d 1, 9–10 (Iowa 2014) (discussing the 2008 Congressional amendments to

the ADA that were made in rejection of “several opinions of the Supreme Court

that have had the effect of restricting the meaning and application of the

definition of disability”). However, we are persuaded by similar cases where the

plaintiff’s anxiety did not rise to the level of being a disability.

       In McGuinness v. University of New Mexico School of Medicine, 170 F.3d

974, 978 (10th Cir. 1998), the Tenth Circuit considered whether a student’s

“anxiety disorder” fell within the definition of disability under the ADA. The parties

agreed that the student’s anxiety “manifests itself when he takes chemistry and

mathematics tests,” and the district court determined that “such a disorder,

limited to certain academic subjects, does not constitute a disability under the

ADA. McGuinness, 170 F.3d at 977. In considering the district court’s decision,

the Tenth Circuit “assess[ed] three factors to determine whether an individual is

‘substantially limited’ in a major life activity: (1) the nature and severity of the

impairment, (2) the duration or expected duration of the impairment, and (3) the

permanence or expected long-term impact of the impairment.” Id. at 978; but see

Goodpaster, 849 N.W.2d at 11 (citing approvingly a law review article that states

some disabilities are “neither permanent nor evanescent,” and then stating it “has

for years contemplated some disabilities might be permanent”).             The court

affirmed the ruling of the district court, analogizing the student’s claim to that of

“an airline mechanic whose impaired vision prevented him from taxiing aircraft

was not disabled under the ADA because he was only disqualified from ‘a single,

particular job.’” McGuinness, 170 F.3d at 978 (citing MacDonald v. Delta Air
                                            26

Lines, Inc., 94 F.3d 1437, 1145 (10th Cir. 1996)). As the court pointed out, “an

individual does not suffer a disability under the ADA if [their] disability does not

prevent [them] from performing ‘a class of jobs or a broad range of jobs in

various classes as compared to the average person having comparable training,

skills, and abilities.” Id. (citation omitted).

       Similarly, in Torres v. Weigel Broadcasting Co., 852 F. Supp. 2d 1106,

1108 (E.D. Wis. 2012), the employee informed her employer that she had

“anxiety and depression issues, and that, ‘workwise’ she would get nervous

easily.” Around the same time, the employee was hospitalized for one day for

reasons relating to her anxiety. Torres, 852 F. Supp. 2d at 1108. The employee

also had three or four instances where she left her post during work because she

became nervous and had to go to the bathroom to calm herself down. Id. The

employee was ultimately terminated from the employment, and she filed a

discrimination suit. Id. at 1110. The court found that the employee had not

established that she had a disability, noting “plaintiff’s anxiety seems to have

impeded her ability to work as a production crew member in live television. But

impeding one’s ability to perform a specific job is not the same thing as

substantially limiting one’s general ability to work.” Id. at 1111. Additionally, the

court found that even though the employee’s anxiety caused her to leave her

station four times and was once hospitalized for it—all affecting her ability to

work—this did not constitute a “substantial limitation” on a major life activity. Id.;

see also Ogborn v. United Food & Com. Worker’s Union, 305 F.2d 763, 767 (7th

Cir. 2002) (holding that a mental impairment that causes inability to work for short

period of time does not substantially limit a person’s ability to work); Cassimy v.
                                          27

Bd. of Educ. of Rockford Pub. Sch., 461 F.2d 932, 936 (7th Cit. 2006) (holding

that mental impairment that merely impeded ability to work does not substantially

limit major life activity of working).

       Here, McCrea has not named any major life activities—other than her

specific workplace—that were affected by her anxiety. Even her claims involving

her employment do not rise to the level of substantially limiting her ability to

perform her job. At the time McCrea requested to be transferred to a similar

position within the City—in January 2013—her doctor stated she had “no

limitations in performing the essential functions outlined in the job description

[that was] provided.”      The letter from the doctor included a statement that

McCrea’s then-current position was a “negative work environment” that was

impacting her anxiety levels, but even that statement goes to McCrea’s ability to

work that one job, not her ability to work in general.        As stated above, “an

individual does not suffer a disability under the ADA if [their] disability does not

prevent [them] from performing ‘a class of jobs or a broad range of jobs in

various classes as compared to the average person having comparable training,

skills, and abilities.” McGuinness, 170 F.3d at 978 (citation omitted).

       Because McCrea has not established that her impairment was so severe

as to constitute a disability, she is unable to establish a prima facie case to

support her claim that the City’s refusal to allow her to transfer positions was

discriminatory. We agree with the district court that this claim fails.

IV. Conclusion.

       McCrea has failed to establish a prima facie case for retaliation under

either the Iowa Civil Rights Act or the Family Medical Leave Act. She also has
                                         28


failed to establish that her anxiety rises to the level of a disability under the Iowa

Civil Rights Act, so her claim for failure to accommodate also fails. We affirm the

district court’s ruling.

       AFFIRMED.
