Amy Wusk v. Evangelical Retirement Homes, Inc., D/B/A Valley View Village and Valley View Village Assisted Living, Inc.

IN THE COURT OF APPEALS OF IOWA

No. 15-0166
Filed December 23, 2015

AMY WUSK,
Plaintiff-Appellant,

vs.

EVANGELICAL RETIREMENT HOMES,
INC., d/b/a VALLEY VIEW VILLAGE
and VALLEY VIEW VILLAGE ASSISTED
LIVING, INC.,
Defendants-Appellees.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Dennis J. Stovall,

Judge.

A plaintiff appeals from a district court ruling granting summary judgment

in favor of the defendants on her wrongful-discharge claim. AFFIRMED.

Mark W. Thomas of Grefe & Sidney, P.L.C., for appellant.

Mitchell R. Kunert and Katie L. Graham of Nyemaster Goode, P.C., Des

Moines, for appellees.

Heard by Danilson, C.J., and Mullins and McDonald, JJ.
2

MULLINS, Judge.

Amy Wusk appeals from a district court ruling granting summary judgment

in favor of Evangelical Retirement Homes, Inc., d/b/a Valley View Village (Valley

View).1 She asserts she was wrongfully terminated from her employment with

Valley View in retaliation for pursuing a workers’ compensation claim. We affirm.

I. Background Facts and Proceedings

Wusk began working for Valley View, an assisted living facility, as a part-

time on-call Certified Nursing Assistant (CNA) in February 2011. In her position,

Wusk did not have regularly-scheduled shifts but was instead required to

schedule her own hours pursuant to the terms of the On-Call Nursing Pool

Agreement.2 Wusk scheduled shifts with Beatrix Baker, Valley View’s Quality

1
Valley View Village and Valley View Village Assisted Living, Inc. are separate and
distinct entities. Wusk admitted she was never employed by Valley View Village
Assisted Living, Inc. As a result, the district court dismissed Valley View Village Assisted
Living, Inc. from this suit. See Travillion v. Heartland Pork Enters., Inc., 2003 WL
21464807, at *3 (Iowa Ct. App. June 25, 2003) (affirming the dismissal of a plaintiff’s
claim against his former supervisor because “Iowa Code chapter 85 applies only to
employers”). Wusk does not appeal the district court’s dismissal of Valley View Village
Assisted Living, Inc.
2
Wusk executed two Pool Agreements with Valley View, one in February 2011 and one
in April 2012. Both agreements contained the following language:
5. Pool employees MUST BE AVAILABLE, RESPOND TO CALL and
WORK a minimum of:
 One holiday per calendar year
 One twelve (12) hour shift per month
Pool employees are responsible for coordinating their shift availability with
the staffing coordinator. If you cancel a shift that was to meet the above
requirements, you must make up that shift within two weeks. If the
missed shift was for a holiday, you must work the next holiday.
Employees will be excused from the above hours requirement if there are
no hours available.
....
8. Failure to follow the terms of this agreement will be considered a
voluntary quit.
3

Assurance Manager and Scheduling Coordinator. Generally, on-call CNAs were

required to sign up for hours in person or by calling Baker. On occasion, Baker

would contact employees if Valley View still had available hours or if it was short-

staffed and needed additional help that day. If an on-call CNA failed to meet the

requirements of the Pool Agreement, it resulted in a voluntary quit on behalf of

the employee.

On November 16, 2011, Wusk injured her arm while helping another

employee dress a patient. She claims she informed the nurses on duty that she

had injured her arm but was not provided an accident report form to complete.

The following day, Wusk visited the doctor. She also reported her injury to Brad

Cole, Valley View’s Executive Director.3 Wusk reported to Valley View for her

last scheduled shifts on November 18 and 19, 2011.

In December 2011, Wusk began treatment for her arm injury and was

placed on lifting restrictions until November 5, 2012. Wusk stated she remained

in contact with her supervisor, Karen Pewick, Valley View’s Director of Nursing,

throughout this time providing paperwork relating to her restrictions and notifying

Pewick when her restrictions were modified. She claims she notified Pewick

when her lifting restriction increased to fifteen pounds and requested light-duty

work, but Valley View never offered her light-duty work.

9. This agreement shall control to the extent it conflicts with the Valley
View Village personnel policy handbook.
3
Valley View’s Employee Handbook required an employee to notify her supervisor within
twenty-four hours if she experienced a work-related injury. Wusk did not report her
injury within this timeframe, but Cole submitted her report anyway.
4

On June 27, 2012, Wusk filed a workers’ compensation claim relating to

the November 16 injury to her arm.

On November 5, 2012, Wusk was released from all of her restrictions and

cleared to return to regular work. That same day Wusk notified Pewick of her

release and stated she was available for work. Wusk also left a message for

Baker conveying the same and inquiring about available hours. Baker returned

Wusk’s call within a day and left a message for Wusk. Wusk did not return

Baker’s call or speak with anyone else from Valley View following these contacts

until after she was terminated in August 2013.

On July 9, 2013, Wusk settled her workers’ compensation claim with

Valley View.

In August 2013, Shelly Barryhill, the Business Manager for Valley View,

conducted an audit of the on-call nursing staff. During the audit she discovered

Wusk had not scheduled any hours since November 2011 despite having been

released to return to work in November 2012. Barryhill and Pewick decided to

terminate Wusk from Valley View’s employment for failing to follow the terms of

the Pool Agreement. Cole subsequently approved this decision.4 On August 28,

2013, Valley View terminated Wusk’s employment. Wusk stated she visited

Valley View multiple times following her termination and attempted to contact

Barryhill to find out why her employment had been terminated, but Barryhill

refused to provide her any information or documentation saying what type of

4
Valley View submitted affidavits from Barryhill, Pewick, and Cole at summary judgment
stating none of them were aware of Wusk’s settlement at the time the decision to
terminate her employment was made.
5

employee Wusk was—which Wusk had hoped would assist her in finding new

employment.

On January 2, 2014, Wusk filed this action, alleging common-law

retaliatory discharge. On October 28, 2014, Valley View moved for summary

judgment prior to the close of discovery. On December 9, 2014, the court held a

hearing on Valley View’s motion. On January 15, 2015, the district court granted

Valley View’s motion for summary judgment. The court held Wusk had failed to

establish a causal connection between the filing of her workers’ compensation

claim and later termination. The court found Wusk’s claim that Valley View

employees had a negative demeanor toward her unconvincing and her

assertions that it was “common knowledge” at Valley View that employees would

be fired if they submitted a workers’ compensation claim were inadmissible and

vague. It further found that even if Wusk could rely on the settlement of her

workers’ compensation claim in July 2013 as the basis for retaliatory motive,

temporal proximity alone was not enough to establish causation. The court also

noted Valley View had a legitimate overriding business justification for

terminating Wusk’s employment: “her failure to coordinate work shifts from

November 2012 to August 2013.” The court concluded: “No reasonable fact

finder could conclude [Wusk] was terminated based on filing or settling her

workers’ compensation claim, rather than failing to schedule work shifts for nine

months.” Wusk appeals.

II. Standard of Review
6

We review a trial court’s grant of summary judgment for corrections of

errors at law. Iowa R. App. P. 6.4. Summary judgment is appropriate when

there are no genuine issues of material fact and the moving party is entitled to

judgment as a matter of law. Iowa R. Civ. P. 1.981(3); Goodpaster v. Schwan’s

Home Serv., Inc., 849 N.W.2d 1, 6 (Iowa 2014). The burden is on the moving

party and we view the record in the light most favorable to the nonmoving party.

Goodpaster, 849 N.W.2d at 6. “However, the nonmoving party may not rest

upon the mere allegations of his pleading but must set forth specific facts

showing the existence of a genuine issue for trial.” Hlubek v. Pelecky, 701

N.W.2d 93, 95 (Iowa 2005) (citing Iowa R. Civ. P. 1.981(5)).

III. Analysis

Iowa law adheres to the common-law employment-at-will doctrine, which

provides “the employment relationship is terminable by either party ‘at any time,

for any reason, or no reason at all.’” Fitzgerald v. Salsbury Chem., Inc., 613

N.W.2d 275, 280 (Iowa 2000) (quoting Phipps v. IASD Health Servs. Corp., 558

N.W.2d 198, 202 (Iowa 1997)). However, Iowa recognizes a public-policy

exception for employees alleging they were wrongfully discharged for filing a

workers’ compensation claim. See Springer v. Weeks & Leo Co., 429 N.W.2d

558, 560 (Iowa 1988) (citing Iowa Code § 85.18 (1987) (“No contract, rule, or

device whatsoever shall operate to relieve the employer, in whole or in part, from

any liability created by this chapter except as herein provided.”)).

In order to establish a prima facie case of retaliatory discharge, Wusk

“must establish (1) engagement in a protected activity, (2) adverse employment
7

action, and (3) a causal connection between the two.” Rivera v. Woodward Res.

Ctr., 865 N.W.2d 887, 894 (Iowa 2015) (quoting Teachout v. Forest City Cmty.

Sch. Dist., 584 N.W.2d 296, 299 (Iowa 1998)). For purposes of summary

judgment, both parties agreed Wusk could establish the first two elements of her

claim. Thus, the issue before us is whether the district court erred in determining

as a matter of law that no causal connection existed between Wusk’s filing a

workers’ compensation claim in June 2012 or her settlement of the claim in July

2013 and her termination from employment with Valley View in August 2013.

The causation standard in a retaliatory-discharge case is high. Teachout,

584 N.W.2d at 301. In order to prevail on her claim, Wusk must demonstrate her

filing of the workers’ compensation claim “was the determining factor in the

adverse employment action.”5 Rivera, 865 N.W.2d at 898; see Phipps, 558

N.W.2d at 203. A “determining factor” is one that “tips the scales decisively one

way or the other.” Teachout, 584 N.W.2d at 302 (quoting Smith v. Smithway

Motor Xpress, Inc., 464 N.W.2d 682, 686 (Iowa 1990)).

Wusk argues she established a genuine issue of material fact to be

considered by a jury by presenting substantial evidence that (1) Valley View

failed to provide her with hours, (2) Valley View administrators displayed a

negative attitude toward her following her injury in November 2011, and (3)

Valley View had a reputation for terminating employees injured on the job. She

5
Our supreme court recently clarified that a plaintiff in a retaliatory-discharge case is not
required to prove the lack of an overriding business justification. Rivera, 865 N.W.2d at
898. The employee must prove that the protected conduct was the determining factor,
and “evidence related to an employer’s legitimate business reasons” is relevant. Id. at
898–99. Indeed, “Iowa law does not impose liability on an employer when the
determining factor was a legitimate business reason.” Id. at 898.
8

asserts the district court assumed the functions of a jury by focusing solely on the

terms of the Pool Agreement instead of viewing the evidence in the light most

favorable to her, and improperly weighing evidence and evaluating the credibility

of witnesses.6

Wusk contends the district court ignored evidence that Valley View failed

to provide her work, including light-duty work following the modification of her

lifting restrictions. She asserts she fulfilled the requirements of the Pool

Agreement, but Valley View ignored her request to return to work for months and

waited over a year from the filing of her workers’ compensation claim to fire her

so that it could avoid a claim of retaliatory discharge.

Pursuant to the terms of the Pool Agreement, Wusk was required to

contact Baker to schedule her hours. On November 5, 2012, the day Wusk was

released to return to regular work, she contacted both Pewick, her immediate

supervisor, and Baker, the scheduling coordinator, asking to be put on the

schedule. Within a day, Baker returned Wusk’s call and left a message.

Although Wusk testified she attempted to call Baker again, her testimony was not

specific either as to how many times or when she tried calling Baker. Giving

every benefit of doubt to Wusk, if she did make any attempts to call Baker, they

were close in time to the initial November contact. Wusk’s testimony raises no

6
Wusk argues questions of causation and motive are factual in nature and must be
resolved by a jury. See Fitzgerald, 613 N.W.2d at 282. However, she fails to
acknowledge that retaliatory-discharge cases should be decided at summary judgment
when a plaintiff has failed to establish a question of material fact for the jury regarding
causation. See, e.g., Teachout, 584 N.W.2d at 303 (finding summary judgment
appropriate when the plaintiff “failed to produce sufficient evidence of a causal
connection between her firing and her intent to report child abuse”).
9

likelihood that during at least six months preceding her termination she made any

attempt to contact Baker or anyone else at Valley View regarding scheduling

hours to work.

Nine months after she was released to work without restrictions, Valley

View discovered Wusk had failed to follow the terms of the Pool Agreement,

resulting in a voluntary quit. Pewick and Barryhill both testified it was Wusk’s

failure to fulfill her obligations under the Pool Agreement that led to their decision

to terminate Wusk in August 2013. Cole stated that it was upon this basis that he

approved the termination decision. We agree with the district court in finding

Wusk’s “own failure to fulfill her obligation of coordinating shifts with the staffing

coordinator does not evince a retaliatory motive on the part of the employer.”

Thus, Wusk did not generate a genuine issue of material fact on this issue.

Wusk further contends the district court erred in determining that evidence

of the negative treatment she received from Valley View administrators after her

injury in November 2011 and the filing of the workers’ compensation claim in

June 2012 was vague. She claims Cole, the executive director, seemed

“distant,”7 the work “atmosphere was different,” no one at Valley View seemed

very helpful, and Barryhill seemed to avoid Wusk after she was terminated. This

court has held that mere generalities of a negative change in the way an

employee was treated after filing a workers’ compensation claim are insufficient

to prove that the filing of the claim was a determining factor in a subsequent

7
Despite Wusk’s claim that Cole seemed to not want to help her, the record shows Cole
submitted her injury report even though Wusk reported the injury outside of the twenty-
four hour reporting deadline provided for in the employee handbook.
10

adverse employment action. See McMahon v. Mid-Am. Constr. Co. of Iowa, No.

99-1741, 2000 WL 1587952, at *4 (Iowa Ct. App. Oct. 25, 2000). We agree with

the district court that there is no genuine issue of material fact concerning the

effect of how the perceived negative treatment Wusk experienced after her injury

evinces a retaliatory motive.

Next, Wusk argues the district court erred in dismissing evidence of

“common knowledge” among Valley View employees that the filing of a workers’

compensation claim would result in termination because it was inadmissible

hearsay. Wusk did not support her allegations by submitting affidavits from

witnesses or otherwise presenting evidence outside of her own testimony of what

other employees told her. Such evidence is hearsay and cannot be considered

at summary judgment. See Pitts v. Farm Bureau Life Ins. Co., 818 N.W.2d 91,

96 (Iowa 2012) (“[T]he court should only consider ‘such facts as would be

admissible in evidence’ when considering the affidavits [or testimony] supporting

and opposing summary judgment.” (quoting Iowa R. Civ. P. 1.981(5))). Wusk

contends this evidence is not hearsay because discovery was not yet closed at

the time of the summary judgment hearing, and therefore, she can still call

witnesses to testify at trial about the negative treatment of workers’

compensation claimants.8 Our rules clearly state the nonmoving party “may not

8
Wusk testified in her deposition that a coworker named Sharron had observed other
Valley View employees not receiving financial assistance for work-related injuries, and
was afraid to report a back injury for fear of losing her job. Wusk discussed another
coworker named Carlos who was injured at work and not compensated by Valley View,
however, Wusk did not know whether Carlos still worked for Valley View. She also
discussed an unnamed woman who had hurt her knee at work and was later fired, but
11

rest upon the mere allegations or denials in the pleadings,” Iowa R. Civ. P.

1.981(5), but “must set forth specific facts showing the existence of a genuine

issue for trial,” Hlubek, 701 N.W.2d at 95; see also Hammel v. Eau Galle Cheese

Factory, 407 F.3d 852, 859 (7th Cir. 2005) (“Summary judgment is not a dress

rehearsal or practice run, it is the put up or shut up moment in a lawsuit, when a

[nonmoving] party must show what evidence it has that would convince a trier of

fact to accept its version of the events.”). Wusk failed to set forth specific facts to

support her allegations that Valley View had a reputation for firing employees

who submitted workers’ compensation claims. Without such facts, she has not

demonstrated a genuine issue of material fact.

Additionally, Wusk claims the district court erred in rejecting her claim that

the temporal proximity between settlement of her workers’ compensation claim

on July 9, 2013, and her termination from employment on August 28, 2013,

evinces a retaliatory motive.9 She further complains the affidavits of Barryhill,

Cole, and Pewick stating they were unaware Wusk’s claim had been settled in

July 2013 are “self-serving and suspect,” and that it is unlikely these three were

unaware of her settlement due to their positions at Valley View. She argues the

district court erred in determining these witnesses were credible because

credibility is not within the court’s scope of review on summary judgment.

did not allege the subsequent firing was related to the employee’s engagement in any
protected activity.
9
Wusk did not plead that the settlement of her workers’ compensation claim in July 2013
is the protected activity she engaged in, but rather her filing of the claim in June 2012.
However, we acknowledge the district court ruled on this issue in its order and reach the
issue.
12

The fact that termination occurs after an employee has engaged in a

protected activity is alone insufficient to establish a causal connection. Teachout,

584 N.W.2d at 302; Phipps, 558 N.W.2d at 203 (holding that evidence of an

employee’s engagement in a protected activity followed by his termination one

month later, by itself, is “insufficient to generate a jury question on retaliation”).

Wusk failed to present evidence to contradict Valley View’s affidavits from

Barryhill, Cole, or Pewick that they were unaware her workers’ compensation

claim had been settled. Further, the district court did not err in considering these

affidavits. See Iowa R. Civ. P. 1.981 (providing for the use of affidavits in support

of summary judgment motions). Therefore, Wusk has not presented sufficient

evidence to support a conclusion that a genuine issue of material fact exists that

could support her allegation that settlement of her workers’ compensation claim

was the determining factor that led to her termination.

IV. Conclusion

Upon our review of the record before us, we conclude no genuine issue of

material fact exists in support of Wusk’s allegations that either the filing of her

workers’ compensation claim in June 2012 or the settlement of her claim in July

2013 was the determinative factor in Valley View’s August 2013 decision to

terminate her employment. Therefore, we agree with the district court that

Wusk’s retaliatory-discharge claim fails as a matter of law.

AFFIRMED.