KELLY SUE SMITHBURG, Plaintiff-Appellant, vs. J & B PLASTICS, INC., and JAY SILVERMAN, Defendants-Appellees.
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IN THE COURT OF APPEALS OF IOWA
No. 7-870 / 07-0616
Filed January 16, 2008
KELLY SUE SMITHBURG,
Plaintiff-Appellant,
vs.
J & B PLASTICS, INC., and
JAY SILVERMAN,
Defendants-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Jefferson County, Michael R.
Mullins, Judge.
Plaintiff appeals from a district court ruling granting summary judgment in
favor of defendants. AFFIRMED.
Patrick W. O’Bryan, Des Moines, for appellant.
Theresa C. Davis and Sarah J. Gayer of Shuttleworth & Ingersoll, P.L.C.,
Cedar Rapids, for appellees.
Considered by Huitink, P.J., and Miller and Eisenhauer, JJ.
2
MILLER, J.
Kelly Smithburg appeals from a district court ruling granting summary
judgment in favor of J & B Plastics, Inc. and its former president, Jay Silverman.
We affirm the judgment of the district court.
I.
BACKGROUND FACTS AND PROCEEDINGS.
The summary judgment record reveals the following undisputed facts.
Smithburg began working for J & B Plastics in 1999 as an administrative
assistant for Silverman.
She was in charge of “payroll, typing reports on
manufacturing, accounts payable, typing sales quotes and bills of lading, and
handwriting some checks.”
A couple of years before Smithburg began working for J & B Plastics she
sought medical treatment for a numb sensation in her arms. She was seen again
for this condition in 1999 and was referred to physical therapy. Her physical
therapist noted that Smithburg “believed the data entry work she did for ten years
had aggravated her condition.”
In January 2004, Smithburg awoke on one occasion feeling as if the joints
of her fingers were swollen. She sought treatment from her family physician, Dr.
Terry Cochran, on January 22, 2004. Shortly thereafter, she began experiencing
“intense pain in her right elbow and shoulder in grabbing with her right hand.” In
May 2004, Dr. Cochran became concerned that Smithburg was suffering from
carpal tunnel syndrome. He referred her to Dr. Michael Pogel, a neurologist, for
electromyogram (EMG) testing on her right wrist and arm. The EMG test is used
to diagnose and assess the severity of the carpal tunnel injury and assists in
localizing the problem.
3
Smithburg scheduled the EMG test for June 7, 2004. When she arrived at
Dr. Pogel’s office that day, she filled out a form that asked her whether her
condition was work-related.
Smithburg placed a question mark next to that
question. A receptionist from the doctor’s office then called Silverman and asked
him to indicate whether Smithburg’s “condition was work related and would be
covered under workers’ compensation coverage, or submit a letter indicating the
Smithburg did not use her arm repetitively at work.” Silverman “declined to do
either” because it was the first notice he had received of Smithburg’s medical
condition. The doctor’s office refused to administer the test after speaking to
Silverman. Following Smithburg’s inability to obtain the EMG test, Dr. Cochran
prescribed “very simple conservative measures,” including physical therapy and
fitting for a brace, to treat her condition.
When Smithburg returned to work on June 8, she engaged Silverman in a
conversation about his refusal to cooperate with Dr. Pogel’s office.
She
continued the conversation the next day, which resulted in a confrontation
between her and Silverman. On June 11, 2004, Smithburg received a written
warning regarding her “uncooperative attitude” and “disruptive behavior and
insubordination in the office.” Upon receiving the written warning, Smithburg
tendered her resignation with the company.
Smithburg obtained a lower-paying position with a different company in
July 2004. She continued with physical therapy until August 2004 by which time
her symptoms had improved. An EMG test was performed on Smithburg on
August 30 and confirmed the carpal tunnel diagnosis. She did not seek any
further medical treatment for her carpal tunnel symptoms after August 2004.
4
Smithburg initiated workers’ compensation proceedings, seeking benefits
from J & B Plastics for her carpal tunnel injury. The workers’ compensation
commissioner denied Smithburg’s claim for temporary and permanent disability
benefits but awarded her medical expenses after determining her carpal tunnel
syndrome arose out of her employment with J & B Plastics.
On June 1, 2006, Smithburg filed a petition in district court against J & B
Plastics and Silverman, alleging the defendants tortiously interfered with her
medical care and constructively discharged her in retaliation for seeking workers’
compensation benefits. The defendants filed a motion for summary judgment,
which the district court granted. The district court concluded Smithburg’s tortious
interference with medical care claim was barred by Iowa Code section 85.20
(2005), the exclusivity provision of the workers’ compensation statute. The court
further concluded “under the facts of this case, Plaintiff cannot as a matter of law
satisfy the elements of constructive discharge.”
Smithburg appeals the district court ruling and raises the following issue:
I.
Whether the trial court erred in granting defendants’ motion
for summary judgment as to plaintiff’s claim for wrongful
constructive discharge from employment.
II.
SCOPE AND STANDARDS OF REVIEW.
We review the district court’s summary judgment rulings for the correction
of errors at law. Iowa R. App. P. 6.4; Faeth v. State Farm Mut. Auto. Ins. Co.,
707 N.W.2d 328, 331 (Iowa 2005). Summary judgment is appropriate when the
pleadings, depositions, answers to interrogatories, admissions on file, and
affidavits show there is no genuine issue of material fact, and the moving party is
entitled to a judgment as a matter of law. Iowa R. Civ. P. 1.981(3); Grinnell Mut.
5
Reins. Co. v. Jungling, 654 N.W.2d 530, 535 (Iowa 2002). A fact question arises
if reasonable minds can differ on how the issue should be resolved. Grinnell
Mut. Reins., 654 N.W.2d at 535. No fact question arises if the only conflict
concerns legal consequences flowing from undisputed facts. Id.
III.
MERITS.
Smithburg argues the district court erred in entering summary judgment in
favor of defendants on her wrongful discharge claim because reasonable minds
could differ as to whether Silverman’s conduct regarding her potential workers’
compensation claim compelled her to resign from her position with J & B Plastics.
We do not agree.
“Constructive discharge exists when the employer deliberately makes an
employee’s working conditions so intolerable that the employee is forced into an
involuntary resignation.” First Judicial Dist. Dep’t of Corr. Servs. v. Iowa Civil
Rights Comm’n, 315 N.W.2d 83, 87 (Iowa 1982). To find constructive discharge,
the fact finder, using an objective test, must conclude that “working conditions
would have been so difficult or unpleasant that a reasonable person in the
employee’s situation would be compelled to resign.”
Haberer v. Woodbury
County, 560 N.W.2d 571, 575 (Iowa 1997).
Smithburg’s affidavit in support of her resistance to the defendants’
summary judgment motion stated that on June 8, 2004, the day after she was
unable to have the EMG performed, she engaged Silverman in a conversation
about his refusal to provide Dr. Pogel’s office with the company’s workers’
compensation identification number. According to Smithburg, when she informed
Silverman during that conversation that she was suffering from carpal tunnel
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syndrome, he “glared at [her] and walked away.” She also alleged during the
course of her employment, Silverman “made repeated, disparaging remarks
about the quality of medical services rendered by my medical providers” and
about “employees who suffered work-related . . . injuries.”
On June 9, Smithburg “confronted Mr. Silverman about his behavior the
previous day and he demanded, ‘Do you have any idea how much we have to
pay out for workmen’s comp? I just can’t stand hearing that word carpal tunnel.’”
Smithburg alleged Silverman then threatened her with disciplinary action “if I
continued requesting a Workers’ Compensation employer’s number” and
“demanded that if I obtained the EMG testing I must mark the physician’s medical
forms and documents that my carpal tunnel was not ‘work-related.’” She told him
she would not “follow his instruction” because she did not know at that time
whether her injury was work-related. 1
On June 11, Smithburg received a written warning regarding her “alleged
‘uncooperative behavior.’” Smithburg submitted a letter of resignation from her
position with J & B Plastics that same day. She believed she “had no choice but
to resign from my job” due to the defendants’ “refusal to cooperate with me, their
interference with my medical care, and Mr. Silverman’s instruction that I be
untruthful in a written document.”
“Generally, trivial or isolated acts of the employer are not sufficient to
support a constructive discharge claim.” Van Meter Indus. v. Mason City Human
1
Dr. Cochran testified at a deposition “there is always the option[ ] of getting these
studies done under the private insurance if there continues to be a delay and
discrepancy on the workers’ comp side.” It appears Smithburg ultimately exercised that
option as she had the EMG test performed on August 30, 2004, without a workers’
compensation claim number from J & B Plastics.
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Rights Comm’n, 675 N.W.2d 503, 511 (Iowa 2004).
Instead, the “working
conditions must be unusually ‘aggravated’ or amount to a ‘continuous pattern’
before the situation will be deemed intolerable.’” Haberer, 560 N.W.2d at 576
(citation omitted).
Conditions will not be considered intolerable unless the
employer has been given a reasonable chance to resolve the problem. Van
Meter Indus., 675 N.W.2d at 511. “[A]n employee cannot simply ‘quit and sue,’
claiming he or she was constructively discharged.” Haberer, 560 N.W.2d at 575
(citation omitted).
The district court was correct in finding “under the facts of the present
case, Plaintiff cannot as a matter of law satisfy the elements of constructive
discharge.” 2 The undisputed facts reveal Smithburg did not give her employer a
“reasonable chance to resolve the problem.” Van Meter Indus., 675 N.W.2d at
511. The first time the defendants were made aware of Smithburg’s medical
condition was on June 7. Her resignation only four days later was “precipitous;
she overreacted.” First Judicial Dist. Dep’t of Corr. Servs., 315 N.W.2d at 89
(finding employee who resigned the day after her employer restricted her from
the jail “failed to make a good faith effort to determine” whether her employer’s
action “would render her employment as onerous as she now contends”); cf. Van
Meter Indus., 675 N.W.2d at 513 (holding an employee who waited one month
before quitting after employer’s adverse act did not act precipitously).
Smithburg’s abrupt resignation in the same week her employer first learned of
her possible work-related injury did not give her “employer an adequate
opportunity to address her grievances.” Van Meter Indus., 675 N.W.2d at 513;
2
We accordingly need not and do not address the parties’ arguments regarding the
application of section 85.20 to Smithburg’s constructive discharge claim.
8
see also Haberer, 560 N.W.2d at 577 (finding an employee could not succeed on
his constructive discharge claim due, in part, to his “rash and intemperate”
resignation).
“The proper focus is on whether the resignation was coerced, not whether
it was simply one rational option for the employee.” Haberer, 560 N.W.2d at 575.
The work conditions described by Smithburg were not “sufficiently extraordinary
and egregious” to establish that a reasonable person in her position would have
felt compelled to resign.
Id.
The district court correctly found Silverman’s
conduct in the days preceding Smithburg’s resignation did not render her work
environment “so intolerable that” she was “forced into an involuntary resignation.”
First Judicial Dist. Dep’t of Corr. Servs., 315 N.W.2d at 87 (listing cases with
burdensome working conditions where no constructive discharge was found).
We therefore conclude summary judgment was properly granted in favor of J & B
Plastics and Silverman on Smithburg’s constructive discharge claim.
IV.
CONCLUSION.
The district court did not err in granting summary judgment in favor of the
defendants on Smithburg’s constructive discharge claim. We accordingly affirm
the judgment of the district court.
AFFIRMED.
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