                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-2181
                            Filed November 27, 2019


DOROTHY HOLLINGER,
    Plaintiff-Appellee,

vs.

STATE OF IOWA,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Karen A. Romano,

Judge.



      The State of Iowa appeals the order entering judgment for Dorothy Hollinger

on her claim of employment discrimination based on disability. AFFIRMED.



      Thomas J. Miller, Attorney General, and Molly M. Weber, Assistant Attorney

General, for appellant State.

      Melissa C. Hasso and Mark D. Sherinian of Sherinian & Hasso Law Firm,

Des Moines, for appellee.




      Heard by Doyle, P.J., and Tabor and Schumacher, JJ.
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DOYLE, Presiding Judge.

       Dorothy Hollinger sued the State of Iowa for employment discrimination

based on disability. She appealed after the district court entered a directed verdict

for the State after finding she is not a person with a disability under the Iowa Civil

Rights Act (ICRA). We reversed the ruling on public policy grounds and remanded

the case for a new trial. Hollinger v. State, No. 15-2012, 2016 WL 7395738, at *4-

5 (Iowa Ct. App. Dec. 21, 2016), further review denied (Mar. 30, 2017). In this

second appeal, the State challenges the district court’s finding on remand that

Hollinger proved her disability discrimination claim.

       I. Background Facts and Proceedings.

       For more than fourteen years, Hollinger worked as a residential treatment

worker at Glenwood Resource Center (Glenwood), a State-operated residential

treatment center. She sustained an injury at work in 2011 that prevented her from

working until May 2012. After Hollinger’s doctor imposed permanent restrictions

on squatting, kneeling, and crawling in October 2012, Glenwood terminated her

employment.1




1As we described in Hollinger’s prior appeal,
       It was Glenwood’s practice to only accommodate employees with
       temporary restrictions because it believed employees with
       permanent restrictions were unable to perform the essential
       functions of their jobs. Glenwood did not allow employees with
       permanent restrictions to work, instead instructing those employees
       to apply for long-term disability benefits. Once the employees were
       approved for long-term disability benefits, Glenwood terminated their
       employment. In accordance with this practice, Glenwood terminated
       Hollinger’s employment after she was approved for long-term
       disability benefits.
Hollinger, 2016 WL 7395738, at *1.
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       In October 2013, Glenwood offered Hollinger a position as an activities aide

after she became available for recall.        But Glenwood hinged the position on

Hollinger’s ability to perform the essential functions of the job. Glenwood asked

Hollinger to have her doctor complete a form listing the twelve essential functions

of the position and asking for an opinion on whether Hollinger could complete

them, was able to complete them with accommodation, or was unable to complete

them. In filling out the form, the doctor marked that Hollinger could perform ten of

the essential functions without accommodation and the remaining two with

accommodation. Although the form does not list squatting or kneeling as essential

functions, the doctor wrote that Hollinger “cannot squat or kneel” and “cannot get

on hands and knees.”       After receiving the completed form, Glenwood sent

Hollinger a letter stating, “Based on the information received from your physician,

you are not able to perform the essential functions of this position.”

       Hollinger sued the State for discrimination in employment based on her

disability or perceived disability. The district court granted a directed verdict for

the State because it determined that Hollinger does not have a disability under the

ICRA. We reversed on appeal and remanded to the district court for a new trial.

Hollinger, 2016 WL 7395738, at *5.

       Following remand, the parties submitted the case to the court for a

determination on the record from the first trial. The court found Hollinger prevailed

on her claim of employment discrimination based on disability, awarding her

$40,858.78 in economic damages and $200,000 in emotional distress damages.

It also awarded her attorney fees.
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       II. Scope and Standard of Review.

       We review judgment entered after a bench trial for correction of errors at

law. See Metro. Prop. & Cas. Ins. Co. v. Auto-Owners Mut. Ins. Co., 924 N.W.2d

833, 839 (Iowa 2019). The district court’s findings are binding on us if supported

by substantial evidence. See id. There is substantial evidence supporting a fact

finding if the court can reasonably infer the finding from the evidence presented.

See Hutchison v. Shull, 878 N.W.2d 221, 229-30 (Iowa 2016).

       III. Analysis.

       The ICRA prohibits employment discrimination based on disability. See

Iowa Code § 216.6(1)(a) (2013). The ICRA defines a “disability” as the physical or

mental condition of a person that constitutes “a substantial disability.”           Id.

§ 216.2(5). The statute does not define the term “substantial disability,” but the

administrative regulations implemented by the Iowa Civil Rights Commission list

three categories of people protected from disability discrimination under the ICRA.

Iowa Admin. Code r. 161-8.26(1); see also Goodpaster v. Schwan’s Home Serv.,

Inc., 849 N.W.2d 1, 6 n.1 (Iowa 2014) (stating that rule 161-8.26 “is intended to

provide the relevant definition of those persons covered by the ICRA”). The ICRA

protects those who (1) have “a physical or mental impairment which substantially

limits one or more major life activities”; (2) have “a record of such an impairment”;

or (3) are “regarded as having such an impairment.” Iowa Admin. Code r. 161-

8.26(1). The district court found that Hollinger fits all three categories.

       The State does not dispute that Hollinger has a physical impairment but

challenges the finding that Hollinger’s impairment substantially limits a major life

activity. The administrative rules define “major life activities” as “functions such as
                                            5


caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking,

breathing, learning, and working.” Iowa Admin. Code r. 161-8.26(3). Squatting

and kneeling are not included in this list, but our supreme court has recognized

that the list is not exhaustive and may include functions like sitting and standing.

See Bearshield v. John Morrell & Co., 570 N.W.2d 915, 919 (Iowa 1997).

       Whether Hollinger’s impairment substantially limits one or more major life

activities was the “fighting issue” in the first appeal. Hollinger, 2016 WL 7395738,

at *3. There, we reviewed the district court’s directed verdict ruling, which relied

on Bearshield to conclude that squatting and kneeling are not major life activities.

Id. at *3-4. In Bearshield, an employee with degenerative arthritis claimed her

employer discriminated against her based on disability, alleging her arthritis

substantially limited “her ability to care for herself, walk, and work.” 570 N.W.2d at

917-19. The supreme court analyzed the employee’s claim in two parts, first

considering whether the employee was limited in a major life activity other than

working—her ability to care for herself and walk—before considering whether she

was limited in the major life activity of working.2 Id. In the first part of its analysis,

the court found the employee failed to show she was substantially limited in her

ability to care for herself or walk, citing her testimony “that she could do her normal

activities at home.”3 Id. at 920. The final sentence of that section of analysis


2 In the second part of this analysis, the court reversed the district court’s grant of
summary judgment for the employer because a fact question existed on whether
the employee’s impairment substantially limited her ability to work. Bearshield,
570 N.W.2d at 920-22.
3 The court noted only one exception; the employee needed assistance in doing

laundry because the laundry appliances were in the basement and, although she
could go up and down stairs, doing so caused her pain. Bearshield, 570 N.W.2d
at 920.
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states, “Although [the employee] is totally precluded from squatting and twisting,

we do not view these movements as major life activities.” Id. From this statement,

the district court determined it was “bound to follow the holding of Bearshield that

squatting is not a major life activity under the [ICRA]” and that “[t]he same logic

leads the court to conclude that kneeling is not a major life activity under the Iowa

Act.”

        In the first appeal, we disagreed with the result reached by the district court

and reversed. Hollinger, 2016 WL 7395738, at *4. We noted that our supreme

court recently reiterated “the ICRA’s ‘general proscription against discrimination’

and our history of relying on that provision ‘to adopt broad definitions to eliminate

employment discrimination.’”       Hollinger, 2016 WL 7395738, at *4 (quoting

Goodpaster, 849 N.W.2d at 9). It also contrasted the ICRA’s mandate to construe

its provisions broadly to effect its purposes with the narrow interpretations of the

ADA adopted by the Federal courts, which ultimately led Congress to amend the

ADA. Id. (citing Goodpaster, 849 N.W.2d at 9-10). On this basis, we declined to

hold that squatting and kneeling are not major life activities. Id.

        [A]pplying the Bearshield holding to exclude Hollinger from the
        definition of a person with a disability results in the ICRA providing
        less protection to Iowa workers than is provided under federal law.
        This result goes against the legislature’s express statement that the
        ICRA ‘shall be construed broadly to effectuate its purposes’ of
        eliminating unfair and discriminatory practices in employment. We
        are to interpret the . . . administrative rules implementing chapter
        216 in the same manner. Because an interpretation of the ICRA that
        excludes those impaired from performing acts such as squatting,
        kneeling, or crawling does not broadly effectuate the purposes of the
        ICRA, we decline to apply the statement in Bearshield relied on by
        the district court to the case at bar.

Id. (footnote and internal citations omitted).
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       The State argues that on remand the district court misinterpreted our

decision in finding squatting and kneeling are major life activities. It claims that our

decision did not decide that squatting is a major life activity, only that the district

court could have found it was a major life activity despite Bearshield. Hollinger, in

contrast, claims that our prior decision is the law of the case, which the trial court

was bound to follow. She argues that the State is “simply dissatisfied” with the

result in the first appeal “and wants a second bite at the same issue.”

       Under the law-of-the-case doctrine,

       an appellate decision becomes the law of the case and is controlling
       on both the trial court and on any further appeals in the same case.
       When the law-of-the-case doctrine applies, the legal principles
       announced and the views expressed by a reviewing court in an
       opinion, right or wrong, are binding throughout further progress of the
       case. The doctrine generally applies only to issues raised and
       passed on in a prior appeal. However, the doctrine extends to
       matters necessarily involved in the determination of a question
       settled in a prior appeal for purposes of subsequent appeals.

Lee v. State, 874 N.W.2d 631, 646 (Iowa 2016) (cleaned up).

       We agree with Hollinger that our prior decision settled the question. An

activity is either a major life activity or it is not. Determining whether a broad

category of activity meets the statutory definition of major life activity is a question

of law.4 See Carter v. Pathfinder Energy Servs., Inc., 662 F.3d 1134, 1142 (10th

Cir. 2011); cf. Consol. Freightways, Inc. v. Cedar Rapids Civil Rights Comm’n,

366 N.W.2d 522, 526 (Iowa 1985) (stating the meaning of “disability” under city

ordinance is a question of law); Willis v. City of Des Moines, 357 N.W.2d 567 (Iowa


4 See generally Bragdon v. Abbott, 524 U.S. 624, 637-39 (1998) (analyzing
whether the affected activity constitutes a major life activity under the ADA by
analyzing the ADA and the administrative regulations relating to it).
                                            8


1984) (noting that interpretation of a statute or ordinance is a question of law). In

contrast, determining whether an individual’s impairment substantially limits a

major life activity is a question of fact determined case by case.5 See Carter, 662

F.3d at 1142; cf. Bearshield, 570 N.W.2d at 918 (“The issue of whether an

individual has a disability is a factual question to be decided on a case-by-case

basis.”). Our decision in the first appeal rejected a general exclusion of squatting

and kneeling as major life activities rather than a finding that Hollinger is not

substantially limited in squatting or kneeling. Thus, the district court correctly

interpreted our holding in the first appeal to determine that squatting and kneeling

are major life activities under the ICRA.

       After finding squatting and kneeling are major life activities, the district court

then made an individualized assessment to determine whether Hollinger’s

impairment substantially limits those major life activities. Because neither the

ICRA nor the administrative rules governing it define the term “substantially limits,”

the district court looked to the Federal regulations interpreting the ADA for

guidance.    It observed that under the amendments to the ADA, the term

“substantially limits” is not a demanding standard and should not require extensive

analysis.   It also noted four criteria to consider in determining whether an

impairment substantially limits a major life activity: (1) the nature and severity of

the impairment; (2) the duration or expected duration of the impairment; (3) the

permanent or long term impact, or the expected permanent or long term impact of



5 See generally Bragdon, 524 U.S. at 639-42 (making an individualized
assessment of the facts before it to determine whether the plaintiff’s impairment
substantially limited a major life activity).
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or resulting from the impairment; and (4) whether the individual is impaired during

episodes or flare-ups even if not impaired during remission. See Goodpaster, 849

N.W.2d at 11-12. The court found the evidence shows that Hollinger’s impairment

substantially limits her ability to squat, kneel, and crawl; that engaging in these

activities causes her unbearable pain; that Hollinger is substantially limited in these

activities compared to the general population; and that her impairment is

permanent. It therefore determined that Hollinger is a person with a disability

under the ICRA. We find no error.

       We affirm the district court’s determination that Hollinger is a person with a

disability under the ICRA. Because we can affirm the judgment on this basis, we

need not consider the State’s arguments about the findings that Hollinger has a

record of a disability and that Glenwood regarded her as having a disability.

       AFFIRMED.
