               IN THE SUPREME COURT OF IOWA
                                  No. 16–1666

                               Filed June 22, 2018


NOLAN DEEDS,

      Appellant,

vs.

CITY OF MARION, IOWA; ST. LUKE’S WORK WELL SOLUTIONS;
ST. LUKE’S HEALTHCARE; and IOWA HEALTH SYSTEM d/b/a
UNITYPOINT HEALTH,

      Appellees.



      On review from the Iowa Court of Appeals.



      Appeal      from   the    Iowa   District   Court   for   Linn   County,

Christopher L. Bruns, Judge.



      Plaintiff seeks further review of court of appeals decision that

affirmed summary judgment dismissing his disability discrimination

claims.   DECISION OF COURT OF APPEALS AND DISTRICT COURT

SUMMARY JUDGMENT AFFIRMED.



      Brooke Timmer, Katie Ervin Carlson, and Nathan J. Borland (until

withdrawal) of Fiedler & Timmer, P.L.L.C., Johnston, for appellant.



      Amy L. Reasner of Lynch Dallas, P.C., Cedar Rapids, for appellee

City of Marion.
                                2

     Karin A. Johnson, Samantha M. Rollins, and Mitch G. Nass of

Faegre Baker Daniels LLP, Des Moines, for appellees St. Luke’s Work

Well Solutions, St. Luke’s Healthcare, and Iowa Health System d/b/a

UnityPoint Health.
                                      3

WATERMAN, Justice.

       In this appeal, we must decide whether the district court correctly

granted     summary    judgment     dismissing       the   plaintiff’s    disability

discrimination claims.    The plaintiff, who has multiple sclerosis (MS),

applied for a full-time job as a firefighter. The defendant City declined to

hire him after the physician performing its preemployment physical

examination reported the applicant was not medically qualified for the

position.   The physician made that determination based on national

firefighter guidelines that disqualify persons with MS with active

symptoms within three years because MS symptoms could hinder job

performance and thereby endanger rescuers and persons needing

assistance in a fire emergency. The physician did not inform the City

that MS was the reason the applicant was found unfit for firefighting,

and the City did not inquire further into why the applicant was

disqualified. The plaintiff did not inform the City he had MS or ask for

any accommodation. Months later, he filed a complaint with the Iowa

Civil Rights Commission (ICRC) alleging disability discrimination and

then   failed   to   accept   the   City’s   offer    to   explore       reasonable

accommodations through an interactive process.

       The plaintiff instead sued the City and the physician’s employer

under the Iowa Civil Rights Act (ICRA), alleging disability discrimination

by the City and that the physician aided and abetted the discrimination.

The district court granted summary judgment for all defendants.                The

district court concluded that because the City was unaware of the

plaintiff’s MS, plaintiff could not prove the City declined to hire him

because of that disability.    And the district court ruled the medical

defendants were not liable under the ICRA for providing an independent

medical opinion in an advisory role.         The plaintiff appealed, and we
                                    4

transferred the case to the court of appeals, which affirmed the summary

judgment over a partial dissent. We granted the plaintiff’s application for

further review.

      On our review, we hold that the plaintiff could not prove the City

discriminated against him because of his MS when the City was unaware

he had MS.     The City is not required to be a mind reader.      On this

record, without any requested accommodation by the plaintiff, the City

had no duty to second-guess the physician’s opinion that the plaintiff

was medically unqualified for the position. The physician, in turn, is not

liable for providing her independent medical opinion or for aiding and

abetting without proof the City intentionally discriminated against the

plaintiff. We therefore affirm the summary judgment.

      I. Background Facts and Proceedings.

      Nolan Deeds had served as a volunteer firefighter for the City of

Coralville since August 2009. Deeds first experienced symptoms of MS

in December 2011. He was deer hunting when he felt numbness in his

right hand. The numbness spread to his right foot and then to his entire

right side. On December 14, Deeds sought treatment at Mercy Urgent

Care where he reported the numbness made it “difficult to rise from bed

in [the] morning” and made him “feel[] weak and unsteady on [his] right

when walking.”    Deeds was referred for an MRI and was examined by

Dr. Richard Neiman, a neurologist with Neurological Associates of

Iowa City.   On December 22, Dr. Neiman gave a probable diagnosis of

MS.   Deeds received treatment, and his symptoms cleared up by late

February 2012.

      After Deeds was diagnosed with MS, Dr. Neiman released him to

return to “full activity for the Coralville Fire Department.” The City of

Coralville, however, retained Dr. Patrick Hartley to evaluate Deeds to
                                       5

determine if he was fit for duty.          Dr. Hartley was “not comfortable

clearing [Deeds] to resume unrestricted duties as a firefighter.”         The

Coralville Fire Department declined to allow Deeds to return to volunteer

firefighting based on Dr. Hartley’s evaluation. Deeds did not challenge

Coralville’s decision to disqualify him from its firefighting position.

      In March 2012, Deeds applied for a position as a professional

firefighter with the City of Marion.       At the time, he was certified as a

Firefighter I and II and an EMT-B (basic). Deeds was also taking classes

and completing other requirements to obtain a paramedic certification,

which he achieved in 2013.         Deeds passed the written civil service

commission test required for the position.           Deeds also passed the

physical agility test.   In April, Deeds interviewed with Fire Chief Terry

Jackson (who has since retired) and Assistant Fire Chief Deb Krebill (who

is now the Marion fire chief). The interview went well, and Deeds was

placed on a list of approved candidates.

      In July, Deeds applied for a firefighter position with the City of

Cedar Rapids. Deeds was interviewed by members of the Cedar Rapids

Fire Department and the City’s civil service commission in the fall of

2012 but did not receive a job offer. He was placed on the certified list of

eligible candidates for the Cedar Rapids firefighter position for one year.

      Deeds experienced numbness in his right foot again in December

2012 and January 2013. A clinic note by Dr. Pedro Gonzalez-Alegre set

forth Deeds’s description of his symptoms:

      One month ago, patient noted right foot numbness. In the
      course of 2-3 days, it spread to involve his left foot as well.
      The numbness then began to involve both legs and the back
      of both thighs. Over the course of the last week to week and
      a half, patient notes that his gait has worsened. Specifically,
      he notices that he wobbles when he walks.
                                            6

Deeds’s symptoms resolved by early February.                      Deeds had no MS

symptoms since then, and in April of that year, he sought a second

opinion from Dr. E. Tourage Shivapour, who diagnosed Deeds with

relapse and remitting MS. He was prescribed different medication, which

he has taken since spring 2013 without side effects.

       In July, the Cedar Rapids Fire Department invited Deeds and

others on the City’s certified list to interview for newly opened firefighter

positions. Deeds completed another interview and received a conditional

offer of employment on July 25 “contingent upon satisfactory completion

of a medical screening.”

       Deeds then completed a health screening with Jennifer Motroni, an

occupational health nurse for the City of Cedar Rapids.                          Motroni

conducted some medical tests, and Deeds completed the Municipal Fire

and Police Retirement System of Iowa (MFPRSI) medical history

questionnaire. 1     Deeds informed Motroni that he had been diagnosed

with MS, and Motroni reached out to Dr. Shivapour with specific

questions about how Deeds’s MS diagnosis could affect his performance

as a firefighter.     In response, Dr. Shivapour completed a “Physician’s

Report to Employer,” in which he indicated that Deeds could work with
no restrictions.




       1Iowa  law requires the MFPRSI to set standards for “entrance examinations.”
Iowa Code § 400.8(1) (2014) (“The physical examination of applicants for appointment to
the positions of police officer, police matron, or fire fighter shall be held in accordance
with medical protocols established by the board of trustees of the fire and police
retirement system established by section 411.5 and shall be conducted in accordance
with the directives of the board of trustees.”). One purpose of the MFPRSI is to
“[p]rovide a comprehensive disability program for police officers and fire fighters to
include standards for entrance physical examinations, guidelines for ongoing fitness
and wellness, disability pensions, and postdisability retirement compliance
requirements.” Id. § 411.1A(2).
                                     7

      Dr. Jeffrey Westpheling, a St. Luke’s Work Well Solutions (Work

Well) physician, conducted a physical exam of Deeds on September 4 to

determine if Deeds was medically qualified to work as a firefighter for

Cedar Rapids.    During the examination, Deeds and Dr. Westpheling

discussed Deeds’s MS diagnosis, the nature of his symptoms, and the

dates when Deeds experienced those symptoms. Dr. Westpheling asked

him to provide medical records from his neurologists; Deeds complied.

      Before attending medical school, Dr. Westpheling had worked as a

Des Moines firefighter for over five years and was thereby familiar with

the essential job functions of a firefighter. Dr. Westpheling consulted the

2013 edition of the National Fire Protection Association (NFPA) 1582,

“Standard on Comprehensive Occupational Medical Program for Fire

Departments.”     Dr. Westpheling explained why he consulted that

standard:

      In cases where there is [a] question on whether or not an
      applicant can perform the essential duties of [a] firefighter,
      the first standard to look at is the MFPRSI guidelines as set
      forth in the protocol. If it’s not something that’s expressed in
      the protocol, then one has to go to the next best available
      guidance, and in this case it would be the NFPA 1582 which
      is a consensus opinion of expert panels including fire chiefs,
      fire service members, physicians, [and] specialists in the
      areas of recommendations. That in my mind is the next best
      available source to look at, and so that’s why I consulted the
      NFPA 1582 and have done so numerous times in the past
      and since. It’s continually updated with new findings and
      new recommendations as well.

NFPA 1582 labels “[m]ultiple sclerosis with activity or evidence of

progression within previous 3 years” as a “Category A” medical condition

that “preclude[s] a person from performing as a member in a training or

emergency operational environment by presenting a significant risk to

the safety and health of the person or others.”      Nat’l Fire Prot. Ass’n,

NFPA 1582 Standard on Comprehensive Occupational Medical Program for
                                            8

Fire Departments §§ 3.3.13.1, 6.17.1 (2013 ed.).                  Based on Deeds’s

history of MS symptoms, Dr. Westpheling’s personal experience working

as a firefighter, and the applicable NFPA Standards, Dr. Westpheling

concluded that Deeds was not medically qualified to work as a firefighter

for the City of Cedar Rapids.

       Motroni received a facsimile from Work Well indicating Deeds was

disqualified; the facsimile included a notation that Dr. Westpheling

“cannot specify [a] reason [for disqualification,] as it is considered

personal.” 2    Motroni notified the Cedar Rapids Fire Department that

Deeds had been medically disqualified.

       On September 10, Dr. Westpheling spoke with Deeds by phone.

He explained the medical opinion he gave the City of Cedar Rapids and

also suggested to Deeds that he could seek a second opinion regarding

his ability to work as a firefighter. Deeds did not do so.

       After the City of Cedar Rapids received Dr. Westpheling’s medical

opinion, Assistant Fire Chief Curtis Hopper called Deeds to revoke the

offer of employment. Deeds did not request any accommodation for his

MS from the City of Cedar Rapids.


       2Dr.  Westpheling did not state the reasons for the disqualification despite having
an “Authorization for Release of Medical Information” that expressly allowed “St. Luke’s
or St. Luke’s Work Well to release medical information to the City of Cedar Rapids for
treatment dates from 09/04/2013 for the purpose of Employment related screening or
health care.” This is consistent with Dr. Westpheling’s practice of not sharing a
patient’s information with a prospective employer because

       prospective employers don’t need information on diagnoses. They only
       need information on whether or not that person can do the essential
       functions of the job applying for or not.

              The actual reason for that is not — is not pertinent or shouldn’t
       be pertinent to their decision. So I will often tell someone they’re free to
       discuss whatever they choose with the prospective employer, but I as an
       examiner am very hesitant to release that information unless I know
       expressly that the prospective employee is allowing me to do that.
                                              9

       Later that fall, another firefighter position opened with the City of

Marion. Deeds again interviewed with Chief Jackson and Assistant Chief

Krebill, who both concluded Deeds performed very well in his interview.

Neither observed signs of any disability during the interview, and they

did not ask Deeds about any medical conditions or physical disabilities,

nor did Deeds disclose his MS.

       On November 13, Chief Jackson tentatively offered Deeds the

firefighter position, stating the offer would “be formalized once [Deeds’s]

physical paperwork indicating job readiness has been received by this

office and all back-grounding has been completed.” Deeds scheduled an

appointment with Dr. Ann McKinstry at Work Well. Dr. McKinstry is a

licensed medical doctor who is board certified in family medicine. She

had    on-the-job      training   for    occupational         medicine   and   making

reasonable     accommodations           for   disabilities.       Dr. McKinstry   had

performed      fewer     than     ten     preemployment          firefighter   medical

examinations for the Cities of Marion and Cedar Rapids. She examined

Deeds on November 21 and learned he had been diagnosed with MS and

had experienced symptoms within the past year.

       Dr. McKinstry consulted with Dr. Westpheling, who had performed

over fifty preemployment firefighter examinations. 3                 Dr. Westpheling

directed Dr. McKinstry to the NFPA Standards binder in the clinic.

Dr. McKinstry read the NFPA 1582 chapter on “Medical Evaluations of

Candidates” and reviewed Dr. Shivapour’s records regarding Deeds’s

diagnosis, treatment, and course of disease.



      3Dr. Westpheling stated in his deposition that this conversation occurred after

Dr. McKinstry already evaluated Deeds. He believed that Dr. McKinstry had already
completed the decision process when the conversation took place. Dr. McKinstry,
however, asserted their conversation occurred during her evaluation of Deeds.
                                     10

      Dr. McKinstry completed the MFPRSI medical examination form,

indicating that Deeds was “NOT medically qualified to do the essential

functions of the job.”       While the form requested the physician to

comment on reasons why an examinee is not qualified, Dr. McKinstry left

that part blank.       Chief Jackson received the form via facsimile on

November 21.        No one from Work Well offered additional information

about why Deeds did not qualify for the position. Chief Jackson testified

that he did not ask for such information because he did not have a

medical release from Deeds.      There is no evidence that Chief Jackson

knew why Deeds was disqualified or that Deeds had MS.

      Chief Jackson called Deeds and informed him that he “was not fit

for duty according to the physicians.”     During this phone call, Chief

Jackson did not ask Deeds why he was disqualified, and Deeds did not

tell Chief Jackson that he had MS or that other physicians found him fit

for firefighting.    Deeds did not ask for any accommodation or second

opinion. Nor did Deeds ask Dr. McKinstry to change her opinion. Chief

Jackson followed up on his phone call with a letter to Deeds revoking the

conditional employment offer.

      In January 2014, Deeds filed a complaint with the ICRC, alleging

that the City of Marion discriminated against him based on his disability.

It was only after Deeds filed his ICRC complaint that the City of Marion

learned that Deeds had MS. The ICRC issued Deeds an administrative

release.

      The next month, Deeds filed another complaint with the ICRC

alleging that the City of Cedar Rapids discriminated against him on the

basis of his disability. The ICRC issued Deeds an administrative release

with regard to these charges as well.
                                    11

      An attorney for the City of Marion wrote to one of Deeds’s

attorneys, seeking Deeds’s medical records and offering to pay for an

individualized assessment of Deeds to be done if Work Well had not

previously conducted such an assessment.         The City also offered to

engage in an interactive process, informing Deeds’s attorney that

            [i]f the Work Well Clinic file establishes Mr. Deeds
      underwent an individualized physical assessment and can
      perform the essential job functions without reasonable
      accommodation, then we agree that Mr. Deeds should be
      hired and we acknowledge the necessity of resolving any
      back pay due and owing.
            If the Work Well Clinic file establishes that Mr. Deeds
      underwent an individualized physical assessment and may
      be able to perform the essential job functions of firefighter
      with some accommodation, then we must determine the
      reasonableness of any accommodations requested before we
      can take any further steps in this process.

The City’s attorney also noted that Deeds “is the only person who has

access to the information necessary to determine whether he can perform

the essential job functions of a firefighter.” Deeds’s attorney responded,

      Once I receive confirmation from the Iowa Civil Rights
      Commission that the City of Marion has substantively
      responded to Mr. Deed’s Complaint, I will be happy to
      provide you with a copy of his medical records from
      St. Luke’s Work Well Clinic.

The City submitted its substantive response to the complaint, but

Deeds’s attorney nevertheless failed to provide the promised medical

records to the City.   Moreover, Deeds did not agree to engage in the

interactive process to explore reasonable accommodations, as offered by

the City.

      Deeds instead filed separate civil lawsuits against the City of

Marion and the City of Cedar Rapids on January 30, 2015.              Deeds

alleged that Marion and Cedar Rapids discriminated against him based

on his disability in violation of Iowa Code section 216.6(1)(a) (2014). In
                                      12

both lawsuits, Deeds alleged that Well Work, St. Luke’s Healthcare, and

Iowa Health System (collectively, the UnityPoint defendants) aided and

abetted the discrimination.

      In Deeds’s suit against the City of Marion, the City filed an answer,

and the UnityPoint defendants filed a motion to dismiss. The motion to

dismiss was denied, and the UnityPoint defendants filed their answer.

The City and the UnityPoint defendants moved for summary judgment.

Deeds resisted the motions. The district court granted both motions for

summary judgment.      The district court concluded that Deeds failed to

show a genuine issue of material fact exists as to whether the City took

adverse action because of Deeds’s disability.            The district court

concluded Sahai v. Davies, 557 N.W.2d 898 (Iowa 1997) (en banc),

controlled Deeds’s claim against the UnityPoint defendants for aiding and

abetting. The court found “[t]he evidence in the record overwhelming[ly]

demonstrates that Dr. McKinstry played an advisory role to the City of

Marion and rendered an independent medical judgment on Mr. Deeds’

physical qualification.”

      Deeds’s lawsuit against the City of Cedar Rapids took a similar

course. The City filed an answer, and the UnityPoint defendants filed a

motion to dismiss that was denied. The UnityPoint defendants then filed

their answer and the City and the UnityPoint defendants moved for

summary judgment.          Deeds resisted the motions.    The district court

granted both motions for summary judgment on the same grounds as

the City of Marion decision.

      Deeds appealed the judgments in both cases, and we transferred

them to the court of appeals. The court of appeals affirmed the summary

judgment in both cases.       The court of appeals determined that Deeds

“failed to show the City rescinded its job offer based on his MS
                                     13

diagnosis.” The court of appeals also concluded that “[b]ecause Deeds

has failed to show the City engaged in a discriminatory employment

practice, his claim that UnityPoint aided or abetted in the discriminatory

employment practice necessarily fails.” Deeds applied for further review,

which we granted.

       II. Standard of Review.

       We review summary judgment rulings for correction of errors at

law.   Goodpaster v. Schwan’s Home Serv., Inc., 849 N.W.2d 1, 6 (Iowa

2014). “Summary judgment is proper when the movant establishes there

is no genuine issue of material fact and it is entitled to judgment as a

matter of law.” Id. We view the record in the light most favorable to the

nonmoving party. Id.

       III. Analysis.

       The ICRA prohibits an employer from discriminating against an

applicant for employment based on disability. See Iowa Code § 216.6(1).

In Goodpaster, we held that MS can be a disability under the ICRA “if the

plaintiff produces evidence that the condition substantially impaired one

or more major life activities during episodes or flare-ups, even if it did not

impair life activities at all when in remission.” 849 N.W.2d at 13. In that

case, the employer was aware of the employee’s MS. Id. at 5. Here, the

fighting issue is whether the City can be liable for discriminating against

an applicant with MS when the City was unaware he had MS. The ICRA

provides,

       It shall be an unfair or discriminatory practice for any:
             a. Person to refuse to hire . . . or to otherwise
       discriminate in employment against any applicant for
       employment or any employee because of the . . . disability of
       such applicant or employee, unless based upon the nature of
       the occupation. If a person with a disability is qualified to
       perform a particular occupation, by reason of training or
       experience, the nature of that occupation shall not be the
                                    14
      basis for exception to the unfair or discriminating practices
      prohibited by this subsection.

Iowa Code § 216.6(1) (emphasis added).          In order to establish a
prima facie case of disability discrimination, a plaintiff must show “(1) he

or she is a disabled person; (2) he or she is qualified to perform the job,

with or without an accommodation; and (3) he or she suffered an adverse

employment decision because of the disability.” Casey’s Gen. Stores, Inc.

v. Blackford, 661 N.W.2d 515, 519 (Iowa 2003); see also Goodpaster, 849

N.W.2d at 6 (requiring plaintiff to prove “the circumstances of his

termination raise an inference of illegal discrimination”). The ICRA also

provides that it is a discriminatory practice for “[a]ny person to

intentionally aid, abet, compel, or coerce another person to engage in any

of the practices declared unfair or discriminatory by this chapter.” Iowa

Code § 216.11(1).

      A. Discrimination Claim Against the City.           We must decide

whether the district court correctly entered summary judgment for the

City on grounds that Deeds could not show it declined to hire him

because of his MS. When the City rescinded its job offer to Deeds, the

City did not know he had MS. The City only knew that the physician

reported Deeds was not medically qualified for the firefighter position.

Deeds, however, knew the physician found him unqualified because of

his MS and could have told the City he had that condition and requested

an accommodation but failed to do so. Deeds also failed to engage in the

interactive process offered by the City after his ICRA complaint to explore

reasonable accommodations. We conclude that Deeds cannot show the

City discriminated against him “because of” his disability.

      1. The City had no duty to inquire further when Deeds failed to

request an accommodation. Deeds argues the City was required to look
                                    15

behind the medical opinion of Dr. McKinstry. The fire chief testified he

had no idea why Dr. McKinstry found Deeds unfit for the job. Deeds, on

the other hand, knew Dr. McKinstry concluded he was not qualified

because of his MS. Yet he made no effort to challenge her opinion, ask

her to reconsider, request any accommodation from the City, or tell the

fire chief that another physician had found him qualified.       Employers

generally are entitled to rely on a physician’s opinion that the employee

or prospective employee is medically unqualified for the job. See Faidley

v. United Parcel Serv. of Am., Inc., 889 F.3d 933, 942 (8th Cir. 2018)

(en banc) (affirming summary judgment dismissing Americans with

Disabilities Act (ADA) claim and stating that “[t]he ADA does not require

an employer to permit an employee to perform a job function that the

employee’s physician has forbidden” (alteration in original) (quoting

Scruggs v. Pulaski County, 817 F.3d 1087, 1094 (8th Cir. 2016) (affirming

summary judgment for employer))); Alexander v. Northland Inn, 321 F.3d

723, 727 (8th Cir. 2003) (affirming summary judgment dismissing ADA

claim and acknowledging that “Northland was entitled to rely and act

upon the written advice from Alexander’s physician . . . . [because i]n this

situation, the employee’s belief or opinion that she can do the function is

simply irrelevant”); Crocker v. Runyon, 207 F.3d 314, 317–18 (6th Cir.

2000) (affirming summary judgment dismissing disability discrimination

claim because the plaintiff, who failed the preemployment physical

conducted by a physician under contract to perform such examinations

for the employer, “failed to offer medical evidence contemporaneous with

his nonhiring to contradict the evidence upon which the [employer]

relied”).

       On this record, we decline to impose a duty on the City to second-

guess Dr. McKinstry’s independent medical opinion that Deeds was
                                    16

unqualified for the firefighter position. See Howard v. Steris Corp., 886

F. Supp. 2d 1279, 1293 (M.D. Ala. 2012) (“[I]t would make little sense to

put the burden on the party with relatively less knowledge about the

possible disability (the employer with some inkling that the employee has

a health problem) instead of on the party with relatively more knowledge

about it (the employee who is actually experiencing the symptoms, knows

his medical history, and has firsthand knowledge about how it affects his

job performance).”); cf. Action Indus., Inc. v. Commonwealth, 518 A.2d

610, 613 (Pa. Commw. Ct. 1986) (addressing an applicant’s pretext

challenge to the employer’s defense of reasonable reliance on a medical

opinion and explaining that “a complainant who presents medical

evidence favorable to him which evidence was unknown to the employer

at the time of the refusal to hire does not negate an employer’s showing of

a non-pretextual reason for refusing to hire an employee it perceived as

. . . disabled, where the employer has demonstrated that it reasonably

relied upon the advice of a medical expert in forming its perception and,

for that reason alone, rejected the candidate” (emphasis added)).

      The Iowa Administrative Code requires employers to “make

reasonable accommodation to the known physical or mental limitations

of an otherwise qualified handicapped applicant . . . unless the employer

can demonstrate that the accommodation would impose an undue

hardship on the operation of its program.”            Iowa Admin. Code

r. 161—8.27(6) (emphasis added).

      [T]he employee can’t expect the employer to read his mind
      and know he secretly wanted a particular accommodation
      and sue the employer for not providing it. Nor is an
      employer ordinarily liable for failing to accommodate a
      disability of which it had no knowledge.
                                      17

Schmidt v. Safeway, Inc., 864 F. Supp. 991, 997 (D. Or. 1994); see also

Hedberg v. Ind. Bell Tel. Co., 47 F.3d 928, 934 (7th Cir. 1995) (“The ADA

does not require clairvoyance.”). The onus was on Deeds to request an

accommodation, not on the City to inquire further about Deeds’s

disqualification. See Magnussen v. Casey’s Mktg. Co., 787 F. Supp. 2d

929, 956 (N.D. Iowa 2011) (“If an employee fails to make a request for

accommodation, then his employer has no duty to accommodate.”

(quoting Buboltz v. Residential Advantages, Inc., 523 F.3d 864, 870 (8th

Cir. 2008), abrogated on other grounds by Torgerson v. City of Rochester,

643 F.3d 1031, 1043 (8th Cir. 2011))); see also Featherstone v. S. Cal.

Permanente Med. Grp., 217 Cal. Rptr. 3d 258, 273 (Ct. App. 2017) (noting

that the employee who wants an accommodation bears the burden of

giving the employer notice of the disability and emphasizing that an

employer “has no affirmative duty to investigate whether an employee’s

illness might qualify as a disability”).

      As the United States Court of Appeals for the Seventh Circuit

noted,

      [a]n employee has the initial duty to inform the employer of a
      disability before ADA liability may be triggered for failure to
      provide accommodations—a duty dictated by common sense
      lest a disabled employee keep his disability a secret and sue
      later for failure to accommodate.

Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1134 (7th Cir. 1996).

Deeds breached this duty to inform his prospective municipal employers

of his MS and did what the Seventh Circuit warned is impermissible—he

kept his disability a secret and then sued both cities for failing to

accommodate his MS.

      It is well established that the employee or applicant bears the

burden of informing the employer of his or her disability. See Taylor v.
                                     18

Principal Fin. Grp., Inc., 93 F.3d 155, 165 (5th Cir. 1996) (noting “it is the

responsibility of the individual with the disability to inform the employer

than an accommodation is needed” (quoting 29 C.F.R. pt. 1630, app.

§ 1630.9 (1995))); see also Lockard v. Gen. Motors Corp., 52 F. App’x 782,

788 (6th Cir. 2002) (concluding employee “never triggered [the employer’s

duty to engage in the interactive process] because of her failure to

request a reasonable accommodation in the first place”); Taylor v.

Phoenixville Sch. Dist., 184 F.3d 296, 313 (3d Cir. 1999) (explaining that

“[w]hat matters under the ADA . . . [is] whether the employee . . . provides

the employer with enough information that, under the circumstances, the

employer can be fairly said to know of both the disability and desire for

an accommodation” (emphasis added)); Loulseged v. Akzo Nobel Inc., 178

F.3d 731, 735 n.4 (5th Cir. 1999) (recognizing that “the burden is on the

employee to request an accommodation” because “[e]mployers cannot be

expected to anticipate all the problems that a disability may create on the

job and spontaneously accommodate them”); Hunt-Golliday v. Metro.

Water Reclamation Dist. of Greater Chi., 104 F.3d 1004, 1013 (7th Cir.

1997) (rejecting failure-to-accommodate claim because the employee

“failed to present anything at all regarding whether she informed [her

employer] of her alleged mental disability and her need for an

accommodation”).

      In Avila v. Continental Airlines, Inc., an employee missed several

days of work when he was hospitalized for acute pancreatitis.              82

Cal. Rptr. 3d 440, 446 (Ct. App. 2008). While the employee had provided

the employer with documentation showing that he had been hospitalized,

neither document “contained diagnostic or other information to indicate

the nature of [his] illness or injury.” Id. at 449. The employee missed

additional days of work and was fired for absenteeism. Id. at 446–47.
                                    19

The employee sued his former employer for failing to accommodate his

disability as required by the California Fair Employment and Housing

Act. Id. at 447. The Avila court explained that an “employee bears the

burden of giving the employer notice of his or her disability.” Id. at 453.

Specifically, the court emphasized that “[t]he employee can’t expect the

employer to read his mind and know he secretly wanted a particular

accommodation and sue the employer for not providing it.” Id. (alteration

in original) (quoting Prilliman v. United Air Lines, Inc., 62 Cal. Rptr. 2d

142, 152 (Ct. App. 1997)). The court concluded that the documentation

provided by the employee was insufficient to put the employer on notice

that the employee was disabled.      Id.   Additionally, evidence that the

employee “called in sick”—without additional information about what

was said during the call—was “inadequate to support a conclusion that

[the employee] informed [the employer] of his disability or the physical

limitations it caused, such that [the employer] was on notice that [the

employee] required accommodation.” Id. The court affirmed summary

judgment on the employee’s failure-to-accommodate claim. Id.

      We conclude that the City did not have a legal duty to investigate

after receiving the medical opinion Deeds was not qualified for the

position, when Deeds himself remained silent regarding his medical

disqualification and requested no accommodation. The burden was on

Deeds to give the City notice of his disability; after all, Deeds knew his

MS was the physician’s reason for his disqualification. Yet Deeds kept

his disability a secret when talking to Chief Jackson on the phone. The

City was not required to read Deeds’s mind, and the City was never told

another physician had cleared Deeds to work as a firefighter with no

restrictions.
                                          20

       Deeds relies on dicta in Sahai to argue “that an employer’s failure

to ask follow-up questions concerning a physician’s finding that an

employee could not perform the essential functions of a job might violate

‘employment discrimination laws.’ ”            Dr. Sahai concluded that Davies

should not be hired for an assembly-line job because she was fourteen

weeks pregnant.        557 N.W.2d at 902 (plurality opinion).               Dr. Sahai

phoned a representative of Nissen, the employer, and “informed him that

he did not believe a young woman who was fourteen weeks pregnant

should be doing assembly line work.” Id. We noted,

       At this point, Nissen representatives were free to ask follow-
       up      questions     concerning      whether      Dr. Sahai’s
       recommendation was based on his beliefs concerning Davies’
       ability to perform assembly line work or upon potential
       physical harm to her from doing that work. The fact that
       Nissen did not ask these follow-up questions and, as a
       result, might have violated employment discrimination laws,
       does not make Dr. Sahai’s recommendation, based on health
       considerations, a sexually discriminatory act.

Id. (emphasis added).

       But in Sahai, the doctor specifically told the employer the

applicant was unqualified because of her pregnancy, which supported a

finding the employer declined to hire Davies because of her disability

(pregnancy). 4    See id.    By contrast, Dr. McKinstry did not tell the City

that Deeds had MS. Instead, she simply informed the City that Deeds

was “NOT medically qualified to do the essential functions of the job.”

       As the district court correctly concluded,

             If, under this set of facts, the City must ask applicants
       about their understanding as to why they were not cleared
       by the doctor, the City exposes itself to potential liability for
       perceived disability discrimination in every case.          This



       4The employer’s liability was not at issue in Sahai, so we did not decide whether
the employer violated the ICRA. See 557 N.W.2d at 900.
                                      21
      potential liability would arise even when the employee is not
      disabled as a matter of law.
            Thus, the employee should be required to raise the
      issue. In this case, Mr. Deeds, who knew why he had not
      been medically cleared to perform the job, can question the
      employer’s decision either when he is first informed of the
      decision or at some point thereafter. If the employee does
      raise the issue, the employer’s obligation to consider
      reasonable accommodations is then triggered. Mr. Deeds did
      not raise the issue until he filed his civil rights claim.

      It makes sense for cities to decline to hire employees found

medically unfit for a position requiring dangerous and physically

demanding emergency rescues.         Indeed, a city that hires a firefighter

found to be medically unqualified for the position faces liability for

resulting injuries.   Iowa recognizes tort liability for negligent hiring or

retention of unfit employees. See Godar v. Edwards, 588 N.W.2d 701,

709 (Iowa 1999) (recognizing a cause of action for negligent hiring and

“conclud[ing] that an employer has a duty to exercise reasonable care in

hiring individuals, who, because of their employment, may pose a threat

of injury to members of the public”). Additionally, cities are liable for a

firefighter’s on-the-job injuries.   See Iowa Code § 411.15 (“Cities shall

provide hospital, nursing, and medical attention for the members of the

police and fire departments . . . when injured while in the performance of

their duties as members of such department . . . .”). We will not require

cities to challenge an independent medical opinion that an applicant for

a firefighting position is unqualified when the applicant himself did not

ask the city to do so or seek any accommodation.

      2. Deeds caused a breakdown in the interactive process offered by

the City.   The City offered to engage in an interactive process after it

learned from Deeds’s ICRC complaint that he had MS. Deeds filed suit

instead of accepting the City’s offer to explore possible reasonable

accommodations through this interactive process.        In Casey’s General
                                         22

Stores, we recognized the need for an employer and employee to engage

in the interactive process to determine a reasonable accommodation.

See 661 N.W.2d at 521. Similarly, federal regulations implementing the

ADA recognize that “[t]he appropriate reasonable accommodation is best

determined through a flexible, interactive process that involves both the

employer and the [employee] with a disability.” Beck, 75 F.3d at 1135

(alteration in original) (quoting 29 C.F.R. pt. 1630, app. § 1630.9). The

Beck court recognized that when

        the missing information is of the type that can only be
        provided by one of the parties, failure to provide the
        information may be the cause of the breakdown and the
        party withholding the information may be found to have
        obstructed the process.

Id. at 1136. “[N]either party should be able to cause a breakdown in the

process for the purpose of either avoiding or inflicting liability.” Id. at

1135.

        The City sought to commence the interactive process by requesting

Deeds’s medical results and offering to pay for an individualized

assessment of Deeds to be done if such assessment had not been

conducted already by UnityPoint. Deeds initially refused to provide the

requested medical information or participate in the retesting offered by

the City, demanding that it first respond to his ICRC complaint. 5 Then

after the City filed its response to the ICRC complaint, Deeds filed this

civil lawsuit against the City instead of engaging in the interactive

process.      We conclude Deeds caused the breakdown in the interactive

process, which provides another basis for affirming the summary

judgment against him.

        5In oral arguments, Deeds’s attorney emphasized that the City only offered
retesting after it denied Deeds employment. But as we discuss below, the City did not
know Deeds had MS until he filed his ICRC complaint.
                                     23

      Other courts have granted or affirmed summary judgment for the

employer when the employee claiming disability discrimination refused to

provide the necessary information to move forward with the interactive

process. See, e.g., EEOC v. Kohl’s Dep’t Stores, Inc., 774 F.3d 127, 130–

34 (1st Cir. 2014) (concluding that employee was “primarily responsible

for the breakdown in the interactive process” when the employee walked

out of a meeting after employer stated it could not provide the specific

accommodation the employee requested and the employee later refused

to discuss other potential accommodations); Kratzer v. Rockwell Collins,

Inc., 398 F.3d 1040, 1045 (8th Cir. 2005) (concluding that employee

caused the breakdown in the interactive process when she failed to

obtain the updated physical evaluation as promised so the employer

could determine what accommodation was needed); Templeton v. Neodata

Servs., Inc., 162 F.3d 617, 618–19 (10th Cir. 1998) (concluding employee

failed to establish an ADA violation when she refused to authorize her

physician to release information requested by the employer to determine

reasonable accommodations); Steffes v. Stepan Co., 144 F.3d 1070,

1072–73 (7th Cir. 1998) (concluding employee who “had it within her

power to explain the nature of the job to her doctor and to obtain a more

comprehensive release letter” as requested by her employer failed to do

so and therefore “failed to hold up her end of the interactive process by

clarifying the extent of her medical restrictions”); Gerdes v. Swift-Eckrich,

Inc., 949 F. Supp. 1386, 1406 (N.D. Iowa 1996) (acknowledging that “the

missing information was of the type that could only be provided” by the

employee or his physician and noting that the employee, “his attorney,

and his physician were not forthcoming with the information even

though [the employer] may have exceeded its obligations by making

frequent requests for clarification”).    Summary judgment is proper on
                                     24

this record because Deeds failed to do his part to move forward with the

interactive process.      This is unfortunate because Deeds missed the

opportunity to determine whether he could have worked as a firefighter

with reasonable accommodations.

      3. The City’s knowledge that Deeds was “not medically qualified” is

insufficient to raise a jury question of whether it discriminated against him

“because of” his disability. We next consider what knowledge is sufficient

to find an employer discriminated against an applicant “because of” the

applicant’s disability.    It is undisputed that the City was told by the

examining physician that Deeds was not medically qualified for the

firefighter position without explanation or disclosure of his MS. And it is

undisputed the fire chief who made the decision to reject his application

was unaware Deeds had MS. Deeds himself never disclosed his MS to

the City, nor did he request a second medical opinion or any

accommodation when told his application was declined because of the

physician’s report that he was not medically qualified.      As the United

States Supreme Court noted,

      If [the decision-maker] were truly unaware that . . . a
      disability existed, it would be impossible for [the] hiring
      decision to have been based, even in part, on [the
      applicant’s] disability. And, if no part of the hiring decision
      turned on [the applicant’s] status as disabled, he cannot,
      ipso facto, have been subject to disparate treatment.

Raytheon Co. v. Hernandez, 540 U.S. 44, 54 n.7, 124 S. Ct. 513, 520 n.7

(2003). We reach the same conclusion.

      Numerous other courts have held that a disability discrimination

claim fails when the employer is unaware of the plaintiff’s disability. See,

e.g., Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1183 (11th Cir. 2005)

(“[The store manager] could not have fired [the employee] ‘because of’ a

disability that she knew nothing about.”); Taylor, 93 F.3d at 163 (“To
                                     25

prove discrimination, an employee must show that the employer knew of

such employee’s substantial physical or mental limitation.”); Hedberg, 47

F.3d at 933 n.5 (“[W]here there is no genuine issue that an employer did

not know of an employee’s disability when it decided to fire him, the

employee cannot make out a case of discriminatory discharge.”); Streeter

v. Premier Servs., Inc., 9 F. Supp. 3d 972, 979 (N.D. Iowa 2014) (“[The

employer] focuses on the third prong [of the prima facie case of disability

discrimination] and points out that there is no evidence that it knew of

[the employee’s] alleged disability. In light of this lack of knowledge, [the

employer] argues that [the employee] cannot prove he suffered an adverse

employment action because of his disability. [The employer] is correct.”);

Brundage v. Hahn, 66 Cal. Rptr. 2d 830, 836 (Ct. App. 1997) (“An

adverse employment decision cannot be made ‘because of’ a disability,

when the disability is not known to the employer.        Thus, in order to

prove an ADA claim, a plaintiff must prove the employer had knowledge

of the employee’s disability when the adverse employment decision was

made.”).

      The United States Court of Appeals for the Eleventh Circuit has

held that constructive knowledge is insufficient to support a finding that

the employer discriminated against an employee “because of” a disability.

Cordoba, 419 F.3d at 1185 (dismissing as dicta statements in previous

cases that a plaintiff must show the employer “had actual or constructive

knowledge” of the disability).    In Cordoba, the employee argued her

employer had constructive knowledge of the alleged disability because

employees other than the employee who decided to fire her

      (1) were aware of her condition and scheduled surgery,
      (2) had observed her experiencing heart palpitations,
      (3) knew that she had left work and gone to the emergency
                                          26
      room once because of heart palpitations, and (4) had
      accommodated her request for a reduction in hours.

Id. at 1183.      The court observed, “As a matter of logic, [the decision-
maker] could not have fired [the employee] ‘because of’ a disability that

she knew nothing about.” Id.

      Deeds argues that Dr. McKinstry’s finding he was medically

unqualified for the firefighting position put the City on notice that he had

a disability.     We disagree.     “While knowledge of the disability can be

inferred from the circumstances, knowledge will only be imputed to the

employer when the fact of disability is the only reasonable interpretation

of the known facts.”          Brundage, 66 Cal. Rptr. 2d at 836 (emphasis

added).     Persons may fail the medical examination required to be a

professional firefighter for many reasons that do not constitute a

disability within the meaning of the ICRA.              See Iowa Code § 216.2(5)

(defining “[d]isability” as “the physical or mental condition of a person

which constitutes a substantial disability”); Goodpaster, 849 N.W.2d at

6–13 (discussing criteria for defining a protected “disability” under the

ICRA). 6    Emergency firefighting is a physically demanding occupation.

      6The   following administrative rules elaborate on the meaning of disability under
the ICRA:

            8.26(1) The term “substantially handicapped person” shall mean
      any person who has a physical or mental impairment which
      substantially limits one or more major life activities, has a record of such
      an impairment, or is regarded as having such an impairment.

                8.26(2) The term “physical or mental impairment” means:

              a. Any     physiological   disorder  or    condition,   cosmetic
      disfigurement, or anatomical loss affecting one or more of the following
      body systems: neurological; musculoskeletal; special sense organs;
      respiratory, including speech organs; cardiovascular; reproductive;
      digestive; genito-urinary; hemic and lymphatic; skin; and endocrine; or

              b. Any mental or psychological disorder, such as mental
      retardation, organic brain syndrome, emotional or mental illness, and
      specific learning disabilities.
                                         27

Applicants who fail the medical examination for a firefighting position do

not necessarily have a condition that substantially impairs a major life

activity.   Indeed, courts have recognized a variety of conditions may

disqualify an applicant from a firefighter position without constituting a

protected disability. See, e.g., Bridges v. City of Bossier, 92 F.3d 329,

331–35 (5th Cir. 1996) (concluding that person disqualified from holding

jobs, such as firefighting, “involving routine exposure to extreme trauma”

due to blood clotting disorder (a mild form of hemophilia) is not disabled

under the ADA because that condition is not “a substantial limitation on

the major life activity of working”); Welsh v. City of Tulsa, 977 F.2d 1415,

1417–19 (10th Cir. 1992) (stating “[d]iminished sensory perception in two

fingers simply is not an impairment that satisfies the test for handicap

under the [Rehabilitation] Act” and affirming summary judgment for city,

concluding “that denial of a single job in a single field due to a physical

condition does not establish that a person is perceived as having an

impairment that substantially limits a major life activity”); Serrano v.

County of Arlington, 986 F. Supp. 992, 995–97 (E.D. Va. 1997)

(acknowledging that applicant’s history of back problems—herniated

discs and spinal stenosis—led to disqualification from firefighting

position and recognizing “[t]he inability to perform a single, particular job

does not constitute a substantial limitation in the major life activity of

working” (quoting 29 C.F.R. § 1630.2(j)(3)(i) (1997))); City of Columbus

Civil Serv. Comm’n v. McGlone, 697 N.E.2d 204, 205–07 (Ohio 1998)

(concluding nearsightedness is not a handicap under Ohio’s ADA and


_______________________
              8.26(3) The term “major life activities” means 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.
                                      28

emphasizing that the applicant “le[d] a normal life” and “that a person

denied employment because of a physical impairment is not necessarily

‘handicapped’ ”). Thus, we are not persuaded that the physician’s report

that Deeds was medically unqualified for firefighting informed the City he

had a disability protected under the ICRA.

       Deeds relies on a federal case stating,

              An employer knows an employee has a disability when
       the employee tells the employer about his condition, or when
       the employer otherwise becomes aware of the condition, such
       as through a third party or by observation. The employer
       need only know the underlying facts, not the legal
       significance of those facts.

Schmidt, 864 F. Supp. at 997 (emphasis added).            Deeds suggests that

because      Dr. McKinstry   told   the   City   that   Deeds   was   medically

disqualified, the City was aware of “the underlying facts” of Deeds’s

disability and therefore was not entitled to summary judgment. Schmidt

is distinguishable.      The Schmidt court concluded that “whether

defendant knew alcohol abuse is considered a ‘disability’ is of no

consequence here. It is sufficient that defendant knew plaintiff had an

alcohol problem.”     Id.; see also United States v. City of Denver, 49

F. Supp. 2d 1233, 1241 (D. Colo. 1999) (“[W]hether a defendant knows

that a physical impairment is considered a disability is of no

consequence. It suffices if the defendant knows the physical impairment

exists.”).   We are not confronting a situation in which the City knew

Deeds had MS but did not know MS qualified as a disability under Iowa

law. The City was unaware of his MS.

       Another case relied upon by Deeds, Adams v. Rice, is equally

inapposite.     531 F.3d 936, 954 (D.C. Cir. 2008) (“[I]f an employer

discriminates against an employee on the basis of a physical or mental

impairment, . . . and if the impairment in fact qualifies as a ‘disability’
                                    29

under the Act, . . . then the employer may be vulnerable to a charge of

employment discrimination.” (Emphasis added.)). In Adams, the federal

government declined to offer Adams a position with the United States

Foreign Service after learning that Adams previously battled breast

cancer. Id. at 941–42. The court rejected the government’s argument

that

       an employer cannot be held liable for discrimination based
       on a record of a disability unless it knows not only about the
       employee’s alleged history of a physical or mental
       impairment, but also how that impairment substantially
       limited a major life activity.

Id. at 950.     The court explained its reasoning through the following

hypothetical.

       Suppose a telephone receptionist takes a leave of absence
       from work because he’s experiencing headaches only to
       discover that he has a malignant brain tumor. The tumor is
       surgically removed, rendering the employee cancer-free. As
       a result of the treatment, however, the employee experiences
       significant hearing loss. Now suppose the employer learns
       about the tumor—but has no idea about the hearing loss—
       and informs the employee he’s not welcome back at work
       because he had cancer. Is that illegal discrimination under
       the Act? Of course it is. In such situations it makes no
       difference whether an employer has precise knowledge of an
       employee’s substantial limitation; . . . it is enough for the
       employer to know about the impairment.

Id. at 953. Because the government knew about Adams’s impairment—

i.e., a history of breast cancer—it did not matter that the government did

not know of the precise limitation caused by cancer; the government

could still “be vulnerable to a charge of employment discrimination.” Id.

at 953–54. Again, it is undisputed that the City did not know Deeds had

MS.

       Dr. McKinstry’s opinion that Deeds was not medically qualified for

the firefighter position was insufficient to inform the City that Deeds had
                                    30

a protected disability. See Morisky v. Broward County, 80 F.3d 445, 448

(11th Cir. 1996) (“Vague or conclusory statements revealing an

unspecified incapacity are not sufficient to put an employer on notice of

its obligations under the ADA.”); cf. Pridemore v. Rural Legal Aid Soc’y of

W. Cent. Ohio, 625 F. Supp. 1180, 1184–85 (S.D. Ohio 1985) (concluding

letter to employer in which applicant explained he “was born . . . with

miniscule brain damage to the perceptual and sensory-motor areas of the

brain” and stated that he hoped the employer would not turn him down

“in violation of the Rehabilitation Act of 1973” did not raise a genuine

issue as to the employer’s knowledge of the applicant’s cerebral palsy).

As noted, a person could be “not medically qualified” for a firefighter

position without having a disability protected under the ICRA.

      Deeds relies on Boelman v. Mason State Bank, 522 N.W.2d 73, 77

(Iowa 1994), for the proposition that “when the reason for an employee’s

discharge is ‘causally connected to’ the employee’s disability, the

discharge is ‘because of’ the employee’s disability.”     In Boelman, the

employee’s MS led to depression and an adjustment disorder, and the

employee’s performance as the vice president of the bank suffered. Id. at

76.   The employee was eventually discharged because of his poor

performance, and he sued the bank for disability discrimination. Id. at

76–77. The district court “found that because of his MS [the employee]

was mentally and emotionally unable to handle the job and therefore, he

had failed to show he was qualified for the position of vice president.” Id.

at 77. The court ruled that the employee failed to establish a prima facie

case of discrimination; the employee appealed. Id. We held that “[w]here

an employer fires an employee based on conduct shown to be causally

connected to the employee’s disability, the termination is ‘solely by

reason of’ the disability for purposes of section 504 [of the Federal
                                         31

Rehabilitation Act].” 7 Id. However, because the district court’s finding

that the former employee failed to show he was “qualified” for the

position was supported by substantial evidence, we affirmed the district

court’s ruling. Id. at 77, 82.

       Boelman is distinguishable. The employer in that case knew the

employee had MS that affected his job performance. See id. at 78. By

contrast, there is no evidence Chief Jackson and Assistant Chief Krebill

knew Deeds had MS.              Deeds never told them or requested any

accommodation. They did not notice any physical limitations when they

interviewed Deeds.       Instead, the City rescinded its offer based on the

physician’s medical determination that Deeds could not perform the

essential functions of a firefighter. The medical report did not tell the

City that Deeds had MS.           On this record, the district court properly

concluded as a matter of law that Deeds could not prove the City rejected

his job application because of his disability.

       Finally, Deeds argues Dr. McKinstry is the City’s agent such that

her knowledge of Deeds’s MS is imputed to the City.                    We disagree.

Dr. McKinstry is not a City employee; she and the UnityPoint defendants

are independent contractors hired by the City. This is no nefarious shell

game to avoid ICRA liability; Iowa municipalities the size of Marion would

not ordinarily have a physician on staff as a city employee but rather

routinely outsource employment physicals to medical clinics employing

the doctor.       Deeds made no showing of a principal–agent relationship

between the City and the UnityPoint defendants.                   The Restatement

(Third) of Agency defines “agency” as


       7Section   504 prohibited discrimination against a “qualified individual” with a
disability “solely by reason of” the disability. Boelman, 522 N.W.2d at 77 (citing 29
U.S.C. § 794 (Supp. II 1990)).
                                          32
       the fiduciary relationship that arises when one person (a
       “principal”) manifests assent to another person (an “agent”)
       that the agent shall act on the principal’s behalf and subject
       to the principal’s control, and the agent manifests assent or
       otherwise consents so to act.

Restatement (Third) of Agency § 1.01, at 17 (Am. Law Inst. 2006)

(emphasis added). There is no evidence that the City “controlled” or had

a   right    to     control   how    Dr. McKinstry       performed      her     physical

examinations; rather, she exercised her own independent medical

judgment, as discussed below. 8 Chief Jackson, not Dr. McKinstry, made

the decision not to hire Deeds. Courts under these circumstances have

rejected claims that the physician performing the physical examination is

the employer’s “agent” under the ADA. See Satterfield v. Tennessee, 295

F.3d 611, 617–19 (6th Cir. 2002) (affirming summary judgment

dismissing ADA claim and rejecting theory that physician was “agent” for

employer with policy “not to employ anyone who did not pass the

physical examination”); Burnette v. Univ. of Akron, No. 5:11cv2361, 2012

WL 3587568, at *5 (N.D. Ohio Aug. 20, 2012) (rejecting theory that

physician was an “agent” for employer when there was no allegation the

physician was authorized to make employment decisions on the

employer’s        behalf).    Accordingly,     there    is   no   basis    to    impute

Dr. McKinstry’s knowledge of Deeds’s MS to the City under an agency

theory.

       8In  Garlitz v. Alpena Regional Medical Center, the court found a question of fact
whether the employer exercised sufficient control over the physician’s “preemployment
screening procedures” that precluded summary judgment on an agency theory under
Title VII’s definition of “employer.” 834 F. Supp. 2d 668, 680, 683 (E.D. Mich. 2011).
Such evidence of control is lacking here. Another federal trial court found the physician
to be the employer’s agent under Title VII in Jimenez v. Dyncorp International, LLC, 635
F. Supp. 2d 592, 602 (W.D. Tex. 2009). Neither Jimenez nor Garlitz relied on an agency
theory under the ADA. Indeed, the Jimenez court specifically declined to apply
Rehabilitation Act and ADA precedent to the Title VII claim because it was unclear
whether “an agent of an employer under the Rehabilitation Act shares the same
definition as an agent of an employer under Title VII.” 635 F. Supp. 2d at 602–03 &
n.9.
                                         33

        The district court correctly concluded that Deeds lacked evidence

the City rescinded its offer because of Deeds’s disability. Deeds argues

this conclusion enables an employer to bury its head in the sand to avoid

liability under the ICRA.       However, we see no evidence that the City

deliberately sought to avoid learning about a potentially protected

disability or conspired with any physician to evade liability under the

ICRA.     Chief Jackson testified that he did not ask Work Well for

additional information on Deeds’s disqualification because he did not

have a medical release.        Deeds made no showing that the City has a

policy of not obtaining a patient’s waiver so that it can purposefully avoid

asking questions about an applicant found medically unqualified.

        B. Aiding and Abetting in Discrimination Claim Against the

UnityPoint Defendants.          Next, we must decide whether the district

court    correctly   granted     summary      judgment       for   the    UnityPoint

defendants.    Under the ICRA, it is a discriminatory practice for “[a]ny

person to intentionally aid, abet, compel, or coerce another person to

engage in any of the practices declared unfair or discriminatory by this

chapter.” Iowa Code § 216.11(1). We conclude that Deeds’s aiding-and-

abetting claim fails for two reasons. First, as we explained above, Deeds

failed to show the City violated the ICRA. An aiding-and-abetting claim

fails   without   an    actionable    wrong     that   was     aided. 9     Second,

Dr. McKinstry exercised her independent medical judgment in advising

the City that Deeds was medically unqualified.               Her conduct is not

actionable under Sahai.




        9The  district court did not reach this ground, but we may affirm summary
judgment on an alternative ground supported by the record and urged by the movant in
district court and on appeal. Veatch v. City of Waverly, 858 N.W.2d 1, 7 (Iowa 2015).
                                      34

      We agree with the court of appeals that a plaintiff must first

establish the employer’s participation in a discriminatory practice before

a third party can be found liable for aiding and abetting.          See, e.g.,

Stoddard v. BE & K, Inc., 993 F. Supp. 2d 991, 1007 (S.D. Iowa 2014)

(concluding aiding-and-abetting claim necessarily fails if the underlying

discrimination claim fails); Pellegrini v. Sovereign Hotels, Inc., 740

F. Supp. 2d 344, 356 (N.D.N.Y. 2010) (“Importantly, since ‘[i]t is the

employer’s participation in the discriminatory practice which serves as

the predicate for the imposition of liability on others for aiding and

abetting,’ a plaintiff ‘cannot prevail against [an individual] on her state

. . . claims unless she can first establish the liability of [her employer].’ ”

(Alterations in original.) (first quoting Murphy v. ERA United Realty, 674

N.Y.S.2d 415, 417 (App. Div. 1998); then quoting DeWitt v. Lieberman, 48

F. Supp. 2d 280, 293 (S.D.N.Y. 1999))); PFS Distrib. Co. v. Raduechel, 492

F. Supp. 2d 1061, 1084 (S.D. Iowa 2007) (“To establish a civil claim for

aiding and abetting under Iowa law, plaintiffs must prove: 1) a wrong to

the primary party; 2) knowledge of the wrong on the part of the aider; and

3) substantial assistance by the aider in the achievement of the primary

violation.” (Emphasis added.) (citing Ezzone v. Riccardi, 525 N.W.2d 388,

398 (Iowa 1994))); Tarr v. Ciasulli, 853 A.2d 921, 929 (N.J. 2004) (“[I]n

order to hold an employee liable as an aider or abettor, a plaintiff must

show that . . . ‘the party whom the defendant aids must perform a

wrongful act that causes an injury . . . .’ ” (quoting Hurley v. Atlantic City

Police Dep’t, 174 F.3d 95, 127 (3d Cir. 1999))); cf. Criterion 508 Sols., Inc.

v. Lockheed Martin Servs., Inc., 806 F. Supp. 2d 1078, 1104 (S.D. Iowa

2009) (“If the plaintiff does not present sufficient evidence generating

genuine issues of material fact for the underlying wrongful conduct, then

the civil conspiracy claim also fails.”); Asplund v. iPCS Wireless, Inc., 602
                                        35

F. Supp. 2d 1005, 1011 (N.D. Iowa 2008) (“While the Iowa Supreme

Court has not construed ICRA’s aiding-and-abetting provision, Plaintiff

has a colorable argument that the Iowa Supreme Court would draw upon

its criminal jurisprudence and hold that aiding and abetting occurs

under ICRA when a person actively participates or in some manner

encourages the commission of an unfair or discriminatory practice prior to

or at the time of its commission.” (Emphasis added.)); Wright v. Brooke

Grp. Ltd., 652 N.W.2d 159, 174 (Iowa 2002) (civil conspiracy claim

requires actionable underlying act).

      We concluded above that Deeds failed to show the City engaged in

a discriminatory practice. This means there is no ICRA violation that the

UnityPoint defendants could aid and abet, so the UnityPoint defendants

cannot be liable under section 216.11(1).

      In any event, in Sahai, we expressly rejected the contention that

“the clinic and its member doctors should be subject to sanction under

the employment discrimination statutes . . . for recommendations that

cause the employer to render discriminatory hiring decisions.”                 557

N.W.2d at 901. 10 We instead concluded that the actions of the clinic and

its doctors are not covered by the ICRA when (1) the clinic plays an
advisory role in the employer’s hiring decision and (2) “[t]he advice being

sought was an independent medical judgment.” Id. We conclude that

Sahai’s rationale applies when analyzing a physician’s liability for aiding

and abetting in discriminatory practices.

      Deeds suggests that because Dr. McKinstry relied on NFPA 1582,

her recommendation was not an independent medical judgment.                     We


      10In Sahai, we analyzed a discrimination claim against a physician and medical
clinic under section 216.6—rather than an aiding and abetting claim under 216.11.
557 N.W.2d at 901.
                                    36

rejected such a contention in Sahai.       There, the physician “candidly

admitted during cross-examination that he would make the same

recommendation against assembly line work for any prospective female

employee in Davies’ stage of pregnancy.” Id. (emphasis added). Because

of this admission, the [ICRC] found that Dr. Sahai’s recommendation was

not an independent medical judgment regarding Davies.          Id.    But we

disagreed, noting that “physicians regularly issue medical opinions based

on typical prognoses for similarly situated clinical settings.” Id. at 901–

02.   We concluded that such evaluations could still be “individualized

when rendered with respect to a particular individual in connection with

a physical examination of that person.” Id. at 902. That is what we have

here. While Dr. McKinstry may have made the same recommendation,

based in part on NFPA 1582, for any individual who experienced MS

symptoms within the past three years, her evaluation was still

individualized with respect to Deeds and the firefighting position.

      Dr. McKinstry   provided   an    advisory   opinion   based     on   her

independent medical judgment.         The district court correctly granted

summary judgment for the UnityPoint defendants.

      IV. Disposition.

      For these reasons, we affirm the decision of the court of appeals

and the district court’s summary judgment in favor of the City and the

UnityPoint defendants.

      DECISION OF COURT OF APPEALS AND DISTRICT COURT

SUMMARY JUDGMENT AFFIRMED.

      All justices concur except Appel and Wiggins, JJ., who dissent, and

Hecht, J., who takes no part.
                                    37

                                         #16–1666, Deeds v. City of Marion

APPEL, Justice (dissenting).

      I respectfully dissent.

      A flat-out ban from employment on anyone with a recurrence of

multiple sclerosis (MS) within the last three years is precisely the kind of

stereotyping that the disability-discrimination provisions of the Iowa Civil

Rights Act (ICRA) are designed to prevent.          How is it that such

stereotyping was applied to Nolan Deeds? The evasion of the ICRA was

achieved when the employer contracted out the physical examination to

a third party.

      Can it be that an employer can avoid responsibility for disability

discrimination by contracting out the physical examination to a third

party and simply following the third party’s conclusory recommendation

that the person is not qualified for the job because of a medical

condition? I do not think so.

      I begin with an overview of disability stereotyping under the ICRA.

The ICRA directs us to construe it “broadly to effectuate its purposes.”

Iowa Code § 216.18 (2014). In construing the prohibition on disability

discrimination, we have endorsed the proposition that the prohibition on

disability discrimination covers not just “affirmative animus” but also

“discrimination based on thoughtlessness, apathy, or stereotype.”

Palmer Coll. of Chiropractic v. Davenport Civil Rights Comm’n, 850 N.W.2d

326, 333 (Iowa 2014) (applying framework for discrimination claims

under the Federal Americans with Disabilities Act and Rehabilitation Act

to claim made under ICRA); see Alexander v. Choate, 469 U.S. 287, 295–

97, 105 S. Ct. 712, 717–18 (1985).       Legislation prohibiting disability

discrimination “assures that truly disabled, but genuinely capable,

individuals will not face discrimination in employment because of
                                     38

stereotypes about the insurmountability of their handicaps.” Probasco v.

Iowa Civil Rights Comm’n, 420 N.W.2d 432, 436 (Iowa 1988) (quoting

Forrisi v. Bowen, 794 F.2d 931, 934 (4th Cir. 1986)). It does not matter if

an employer acted in good faith in taking discriminatory actions when

the discrimination is based on unfounded stereotyping. “Stereotyping is

no less harmful to the handicapped employee when it is based on good

faith.” Me. Human Rights Comm’n v. Canadian Pac. Ltd., 458 A.2d 1225,

1231 (Me. 1983).

      How does the basic antistereotype principle of the ICRA apply in

this case? Due to the physically demanding nature of being a firefighter,

fire departments may properly screen employees to ensure that they

meet the health requirements for the job.           See Iowa Code § 400.8(1)

(requiring physical examination of firefighter applicant to determine

“physical or mental agility of the applicant” but prohibiting consideration

of applicant’s “height, weight, sex, or race”); Stephanie C. Griffin et al.,

Evaluation of a Fitness Intervention for New Firefighters: Injury Reduction

and Economic Benefits, 22 Inj. Prevention 181, 181 (2016) (“Firefighting

is a hazardous profession that often requires strenuous work in dynamic

and unpredictable environments.”). Under Iowa Code section 400.8(1),

the Municipal Fire and Police Retirement System of Iowa sets the

standards for the entrance examination.             These standards do not

mention MS. See Medical Examination Protocol for Firefighters, MFPRSI,

[hereinafter       MFPRSI,       Medical            Examination         Protocol],

www.mfprsi.org/site_mcdra/

pdfs/fire_protocal_2.pdf     (last        visited      June       18,      2018)

[https://perma.cc//KD9E-RZ4W].

      The National Fire Protection Association (NFPA) Standard states

that anyone with MS who has experienced a recurrence or a progression
                                    39

of the disease within three years prior to the examination is precluded

from serving as a firefighter. Nat’l Fire Prof. Ass’n, NFPA 1582 Standard

on Comprehensive Occupational Medical Program for Fire Departments

§§ 3.3.13.1, 6.17.1(4) (2013 ed.).       The statutorily mandated Iowa

standards, however, do not refer to the national standard nor direct

healthcare providers to use the NFPA standard.          MFPRSI, Medical

Examination Protocol.

      But a flat-out ban on anyone with a recurrence of MS within the

last three years is exactly the sort of stereotyping about an illness that

the ICRA was enacted to prohibit.     See Probasco, 420 N.W.2d at 436.

Such a ban is far from the sort of individualized medical determination

that is required under the ICRA to be a legitimate medical reason for

denying employment as a firefighter due to MS. See Frank v. Am. Freight

Sys., Inc., 398 N.W.2d 797, 801 (Iowa 1987); see also Holiday v. City of

Chattanooga, 206 F.3d 637, 643 (6th Cir. 2000) (holding under the ADA,

the district curt erroneously treated as dispositive a medical opinion that

concluded the potential employee could not perform the job when there

was no evidence the doctor conducted an individualized inquiry into

whether the potential employee’s disability would actually interfere with

job performance); Me. Human Rights Comm’n, 458 A.2d at 1232–34

(rejecting, under the Maine Human Rights Act, medical examinations

flatly disqualifying all candidates with certain medical conditions without

statistical evidence that every person with that condition is unable to

successfully perform the job, and requiring individual assessments).

      So if the use of a flat-out ban is prohibited by the ICRA, does the

fact that the stereotype was applied by a physician, whom the employer

contracted with to perform medical evaluations of prospective employees,

change anything? Under the Iowa law of agency, “[t]he party asserting
                                         40

an agency relationship must prove its existence by a preponderance of

the evidence.” Soults Farms, Inc. v. Schafer, 797 N.W.2d 92, 100 (Iowa

2011); see Chariton Feed & Grain, Inc. v. Harder, 369 N.W.2d 777, 789

(Iowa 1985) (en banc).          An agency relationship is created by (1) a

manifestation of consent by the principal that the agent shall act on the

principal’s behalf and subject to the principal’s control, and (2) “consent

by the [agent] to so act.”        Soults Farms, 797 N.W.2d at 100 (quoting

Pillsbury Co. v. Ward, 250 N.W.2d 35, 38 (Iowa 1977)).                   “An agency

relationship can be established through the agent’s actual or apparent

authority to act on behalf of the principal.” Id.; accord Fed. Land Bank of

Omaha v. Union Bank & Tr. Co. of Ottumwa, 228 Iowa 205, 209–10, 290

N.W. 512, 514–15, supplemented on other grounds on denial of reh’g, 292

N.W. 852, 853 (Iowa 1940).

       Although the issues before the court in Sahai v. Davies, 557

N.W.2d 898 (Iowa 1997) (en banc), were somewhat different, the case is

still instructive. In Sahai, a prospective employee sued the prospective

employer as well as the physician and medical clinic (medical

defendants) that performed the preemployment physical on behalf of the

prospective employer.       Id. at 899, 900 (plurality opinion). 11        The Iowa
Civil Rights Commission found that the medical defendants engaged in

sexual discrimination, but the Sahai court reversed.               Id. at 899.    The

Sahai plurality found the medical defendants did not commit sexual

discrimination because there was no evidence that the physician’s

recommendation not to hire the plaintiff was solely based on a

stereotyped judgment that all pregnant women were unable to perform

the job.      Id. at 901–02.    We noted that while the physician’s written


       11In  Sahai, four justices joined the plurality, Justice Harris concurred in the
result, and four justices dissented. 557 N.W.2d at 899, 903.
                                    41

opinion was simply a conclusory recommendation not to hire the

plaintiff, the physician subsequently phoned the prospective employer

and expressed his belief that women who were fourteen-weeks pregnant

should not be hired to do assembly-line work when they had never done

that type of work before. Id. at 902. We explained that, at that point, the

prospective employer was “free to ask follow-up questions” to determine

whether the physician’s recommendation was based on stereotyped views

of pregnant women or on the plaintiff’s individual limitations, and since

it did not it “might have violated employment discrimination laws.” Id.

But this did not make the physician’s recommendation itself a sexually

discriminatory act.    Id.   While this observation is dicta, it strongly

suggests that the plaintiff may have had a discrimination claim against

her prospective employer. However, the issues involving the prospective

employer were not the subject of the appeal. Id. at 900, 902.

      As in Sahai, the City certainly was free to ask follow up questions.

When Dr. Ann McKinstry performed a physical examination on Deeds,

she learned from him that he had MS. After consulting with Dr. Jeffrey

Westpheling and reviewing Deeds’s medical records from his neurologist

and the NFPA Standards, Dr. McKinstry completed the MFPRSI medical

examination form and indicated Deeds was not qualified to do the

essential functions of the job. She did not indicate on the form why he

was not qualified, even though the form requested the physician to do so.

The form was faxed to the Marion fire chief but he made no inquiry into

the reason for the disqualification. As in Sahai, the City followed a “don’t

ask, don’t tell” approach.

      Other courts have held that when a doctor is conducting a

mandatory health screening on behalf of an employer, the doctor may be

an agent of the employer.     See Garlitz v. Alpena Reg’l Med. Ctr., 834
                                    42

F. Supp. 2d 668, 680–81 (E.D. Mich. 2011); Jimenez v. Dyncorp Int’l, LLC,

635 F. Supp. 2d 592, 602–04 (W.D. Tex. 2009); cf. Tex. Emp’rs’ Ins. Ass’n

v. Vineyard, 296 S.W.2d 588, 590 (Tex. Civ. App. 1956) (holding the

doctor conducting the workers’ compensation examination was the

employer’s agent, such that the doctor’s fraudulent statements to the

employee in settlement negotiations were the responsibility of the

employer).

         In Jimenez, the employer required job applicants to undergo

training and evaluations by independent contractors, which included a

psychological evaluation conducted by a doctor employed by one of the

independent contractors. 635 F. Supp. 2d at 597. The plaintiff failed the

psychological exam, and the employer rescinded its conditional offer of

employment. Id. at 598–99. The plaintiff alleged the doctor failed her

based on gender discrimination. Id. at 599.

         The federal district court held the doctor was the agent of the

employer under Title VII based on common law agency principles and the

liberal interpretation given to Title VII provisions.   Id. at 601–02.   The

court noted the plaintiff’s failed psychological evaluation was the sole

basis for the employer rescinding the employment offer and the employer

provided no further review of the doctor’s decisions before rescinding the

offer.    Id. at 602.   Thus, the court explained, “it is clear that [the

employer] delegated to [the doctor] and [the independent contractor] the

power to ‘hire, fire, and perform other employer functions’ ” or, at the

very least, allowed the doctor to “participate[] in the decision-making

process” of the employer.      Id. (first quoting Cuesta v. Tex. Dep’t of

Criminal Justice, 805 F. Supp. 451, 455 (W.D. Tex. 1991); and then

quoting Hamilton v. Rodgers, 791 F.2d 439, 443 (5th Cir. 1986),
                                            43

overruled on other grounds by Harvey v. Blake, 913 F.2d 226, 228 n.2

(5th Cir. 1990)).

       The court distinguished the case from Crocker v. Runyon, 207 F.3d

314 (6th Cir. 2000). Jimenz, 635 F. Supp. 2d at 602–03. The Crocker

court held the employer’s reliance on outside medical opinions in making

its hiring decision was not discriminatory, 207 F.3d at 319, but the

Jimenez court noted, “the plaintiff in Crocker never argued that the

doctors providing medical opinions were agents of the [employer],” 635

F. Supp. 2d at 602.          Consequently, unlike in Jimenez, the issue in

Crocker was not whether the plaintiff failed to show the defendant took

an adverse employment action because of the handicap, but rather

whether the plaintiff was able to show that he was otherwise qualified for

the job with or without a reasonable accommodation. Compare Crocker,

207 F.3d at 318–19, with Jimenez, 635 F. Supp. 2d at 603. 12

       In Garlitz, the federal district court held there was a genuine issue

of material fact as to whether the preemployment-examination doctor

was the defendant-employer’s agent.               834 F. Supp. 2d at 680.             As a

condition of the offer of employment, the defendant required the plaintiff

to undergo a medical examination at an independent clinic that was
contracted to perform preemployment examinations.                     Id. at 672.      The

       12In   Crocker, the defendant’s physicians did conduct individualized
preemployment physicals on the plaintiff, and the plaintiff was only able to present
more favorable medical opinions based on examinations conducted years after the
defendant decided not to hire the plaintiff. 207 F.3d at 317–18. Such examinations
conducted years later, the United States Court of Appeals for the Sixth Circuit
explained, did not show that the plaintiff was qualified at the time of the hiring decision.
Id. at 318. The court contrasted the physicians’ individualized examinations of the
plaintiff to determine the plaintiff’s job capabilities with Holiday, 206 F.3d 643–44,
where there was evidence of the plaintiff’s contemporaneous ability to serve as a police
officer and the physician did not consider the plaintiff’s personal HIV symptoms and
prognosis but based his medical opinion on the stereotyped view that individuals with
HIV could not serve as police officers. Crocker, 207 F.3d at 320. In Crocker, the
employer relied on the individualized, nonstereotyped opinions in good faith. Id.
                                     44

plaintiff refused to answer the clinic’s medical-history questions about

pregnancy and birth control, and the clinic did not pass her because she

withheld the information. Id. at 673. The defendant then rescinded its

offer of employment. Id. at 673–74. The defendant argued that it was

not responsible for the questions asked by the clinic—the clinic was an

independent organization and the defendant did not direct it to ask the

questions—and, thus, it was entitled to summary judgment on the

discrimination claim. Id. at 679, 680.

      In determining whether the clinic was the defendant’s agent, the

Garlitz court looked at the common law of agency and the Restatement

(Second) of Agency. Id. at 681. The court noted that the Restatement

(Second) defines the agency relationship as “the manifestation of consent

by one person to another that the other shall act on his behalf and

subject to his control, and consent by the other so to act.” Id. (quoting

Restatement (Second) of Agency § 1, at 7 (1958) [hereinafter Restatement

(Second) of Agency]). Here, the court explained, the defendant “delegated

to [the clinic] the authority to make certain aspects of [the defendant’s]

employment decisions.”     Id.   The plaintiff needed to pass the clinic’s

health examination to receive the job, and she could not pass unless she

answered all of the questions asked by the clinic.        Id.   Further, the

defendant and the clinic’s relationship was exclusive—the defendant sent

all of its potential employees to the clinic for preemployment physicals

unless the clinic lacked the capacity to conduct the physicals.       Id. at

681–82. The court concluded the defendant, “[i]n practical terms, . . .

delegated some hiring decisions to [the clinic].” Id. at 682.

      On the issue of the amount of control the defendant exercised over

the clinic’s screening practices, there was a genuine issue of material fact

as to whether the defendant ever communicated to the clinic the reason
                                    45

why it was sending individuals to the clinic. Id. at 682–83. The court

acknowledged,

      [I]t is possible that [the defendant] never communicated the
      reason it was paying [the clinic] to conduct these physicals,
      the reason it wanted these individuals to receive physicals,
      the type of information [the defendant] wished to obtain from
      the physicals, or [the defendant’s] purpose in entering into
      the exclusive, ongoing arrangement with [the clinic] to have
      [the clinic] provide physicals.

Id. at 683. Yet there was some testimony from the defendant “that [it]

and [the clinic] had worked together to develop the content of the

physical exams” the clinic used to determine whether the employee was

qualified to perform the essential functions of the job.   Id. While this

testimony created a genuine issue of material fact, ultimately, “the actual

exercise of control is not essential to create an agency relationship.” Id.

The dispositive finding is “the right to control the conduct of the agent,”

not whether the principal ever exercised that control.      Id. (emphasis

added) (quoting Restatement (Second) of Agency § 14, at 60).     The court

thus denied this part of the defendant’s motion for summary judgment.

Id. at 690.

      Here, Deeds has created a genuine issue of material fact as to

whether the UnityPoint defendants were the City’s agents. A reasonable

fact finder could conclude that the City had control over how the

UnityPoint defendants conducted their exams for the City’s firefighters

based on the testimony of Dr. McKinstry. Like in Garlitz, there is some

evidence the City communicated to the UnityPoint defendants its

requirements about physicals and what it wished to obtain from the

physicals. See id. at 681, 682–83. A medical provider that is truly not

an agent of the employer would only incidentally conduct physicals on

the employer’s behalf, e.g., without a contractual relationship. Cf. id. at
                                   46

682 (noting defendant—principal—contracted with third party—agent—to

perform the examinations); Jimenez, 635 F. Supp. 2d at 597 (same). A

reasonable jury could find the City’s control over the UnityPoint

defendants demonstrated a principal–agent relationship.

      Further, like in Garlitz and Jimenez, a fact finder could determine

the City, in effect, delegated its employment decisions to the UnityPoint

defendants. See Garlitz, 834 F. Supp. 2d at 82; Jimenez, 635 F. Supp.

2d at 602. Deeds had to pass the physical in order to be employed by

the City.   The fact that Deeds did not pass the physical was the only

reason why the City rescinded its conditional offer of employment.

      The majority focuses on the facts that the UnityPoint defendants

are independent contractors and that the City did not control how

Dr. McKinstry conducted the examination.      However, just because the

UnityPoint defendants are independent contractors, does not mean that

they are not the City’s agents. And, as I explained above, there is some

evidence in the record suggesting the City did, in some sense, control

how   Dr. McKinstry   conducted    the   examination    by   directing   the

UnityPoint defendants to perform certain medical tests for the purpose of

ensuring that potential employees were able to serve as firefighters. The

mere fact that Dr. McKinstry may have exercised some medical judgment

in conducting the tests does not change this crucial element of control.

      Here, unlike in Sahai, we are considering whether an employer

discriminated against an employee when the employer did not ask the

UnityPoint doctor for the basis of the medical disqualification. See 557

N.W.2d at 901 (noting the gender discrimination issues involving the

employer were not the subjects of the appeal; only the discrimination

issues involving the doctor and the clinic were).      Sahai suggests that
                                     47

such an employer commits discrimination when it fails to do so. Id. at

902.

        To hold otherwise would be to encourage employers to take a “don’t

ask, don’t tell” approach.    This would permit employers to evade the

ICRA.    Cf. Bates v. Dura Auto. Sys., Inc., 767 F.3d 566, 577 (6th Cir.

2014) (“[A]n employer cannot hire a third party to discriminate on its

behalf.”); Wilks v. Taylor Sch. Dist., 435 N.W.2d 436, 437–38 (Mich. Ct.

App. 1988) (per curiam) (noting defendants are not shielded from liability

due to relying on doctor’s opinion because to hold otherwise could allow

the employer “and its hired physician [to] collude, connive or conspire to

eliminate a handicapped applicant’s chances for employment . . . by

making certain that the applicant never be issued the medical

certification required under the law”); Mary Crossley, Infected Judgment:

Legal Responses to Physician Bias, 48 Vill. L. Rev. 195, 279 (2003)

(cautioning that biased medical decisions could be beyond the reach of

antidiscrimination laws if the employer is able to escape liability for a

physician’s medical disqualification); Daniel L. Stickler & Albert F.

Sebok, Legal Issues Surrounding Preemployment Physical Examinations in

the Coal Industry, 94 W. Va. L. Rev. 811, 827 & n.84 (1992) (“Courts,

however, will not find an employer immune from claims of handicap

discrimination    merely   because   the   employer   has   relied   upon   a

physician’s opinion.”).

        I now turn to the question of whether Deeds may be considered

responsible for the employer’s actions because of his failure to engage in

the interactive process. I would not uphold the district court’s ruling on

the basis of Deeds’s failure to cooperate with the interactive process. The

City offered Deeds retesting only after it denied him employment due to

his MS. A potential employee must comply with the interactive process
                                         48

only when the employer seeks to offer the potential employee a

reasonable accommodation for the disability, not after the employer has

already denied employment.         See Fahey v. Twin City Fan Cos., 994 F.

Supp. 2d 1064, 1079 (D.S.D. 2014) (emphasizing that an employer has a

duty to engage in an interactive process in good faith before rescinding

an offer of employment based on a disability when it is aware of the

general disability but not the employee’s individual limitations); see also

Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 313–14 (3d Cir. 1999)

(explaining that an employer’s knowledge of an employee’s disability and

the employee’s desire to work in spite of the disability triggers the

employer’s duty to initiate the interactive process before taking negative

employment action and that no magic words requesting a “reasonable

accommodation” are needed).

      Next, there is a question of whether the district court properly

dismissed Deeds’s claim against the UnityPoint defendants.              I would

reverse the district court’s grant of summary judgment to the UnityPoint

defendants. Iowa Code section 216.11(1) states that intentionally aiding

and abetting “another person” engaging in any unfair or discriminatory

practice under the ICRA is itself an unfair or discriminatory practice

prohibited by the Act.

      Here, unlike in Sahai, there is substantial evidence in the record

that Dr. McKinstry did not exercise her independent medical judgment in

determining that Deeds was not medically qualified for the position. See

557 N.W.2d at 901. Dr. McKinstry testified that once she learned Deeds

had MS and the NFPA Standard banned anyone with MS from serving as

a firefighter, any further exploration of Deeds’s actual ability to perform

the   essential   functions   of   the    job   with   or   without   reasonable

accommodations was “a moot point.” This stereotyped thinking without
                                     49

considering whether the individual employee can perform the essential

functions of the job is the kind of discrimination that the ICRA is

designed to prevent. See Probasco, 420 N.W.2d at 436. Further, unlike

in Sahai, there is evidence that the City simply adopted the conclusory

disqualification and that the UnityPoint defendants did not act in an

advisory role. See 557 N.W.2d at 901. I conclude there was adequate

evidence to show the UnityPoint defendants aided and abetted the

discriminatory action of the City.

      For the above reasons, I would vacate the decision of the court of

appeals, reverse the judgment of the district court, and remand the case

for further proceedings.

      Wiggins, J., joins this dissent.
