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IN THE COURT OF APPEALS OF IOWA No. 8-460 / 07-1689 Filed October 29, 2008

MARCY ANN SMITH, Plaintiff-Appellant, vs. STATE OF IOWA, KEVIN W. CONCANNON, in his official capacity only as the Director of the Iowa Department of Human Services, and MOLLIE ANDERSON, in her official capacity only as the Director of the Iowa Department of Administrative Services, Defendants-Appellees. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Carla T. Schemmel, Judge.

Marcy Smith appeals from the district court's granting of the State's motion to dismiss. AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

J. Campbell Helton of Whitfield & Eddy, Des Moines, for appellant. Thomas J. Miller, Attorney General, and Barbara Galloway, Human Services Division, for appellee.

Considered by Huitink, P.J., and Vaitheswaran and Potterfield, JJ.

2 POTTERFIELD, J. I. Background Facts and Proceedings Plaintiff Marcy Ann Smith was hired in 1996 as a state employee within the HIPP unit of the Department of Human Services. She always met her work requirements and received favorable reviews from her supervisor. Smith suffers from clinical depression, and sometimes took leave for self-care in accordance with the Family and Medical Leave Act (FMLA). Smith's supervisors cooperated with her and allowed her to take medical leaves of absence as directed by her physician. Mollie Anderson and Kevin Concannon are supervisors in the Iowa Department of Human Services (DHS) and have authority over Smith's position.1 In August of 2005, Smith's physician provided written notice to DHS that she would remain off work under the FMLA until September 7, 2005. Near the end of that period, Smith experienced a family crisis that exacerbated her mental health condition. She was excused from work by her physician on September 8, 2005. However, Smith went to her workplace that day and submitted a handwritten letter of resignation to her supervisor. Smith's supervisor was concerned by Smith's apparent emotional state and took steps to ensure Smith's safety. DHS nevertheless accepted her resignation that very day. Later that week and again in October, Smith requested that her resignation be withdrawn and that she be reinstated. Her employer responded that Smith was not eligible to return to her job, but that she could request to be

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Uses of "State" and "DHS" in this opinion refer to defendants.

3 considered for other positions. have been declined.2 Smith filed a petition alleging that the acceptance of her resignation and refusal to reinstate her constitute: (1) interference with FMLA rights, (2) retaliation for exercising FMLA rights, (3) disability discrimination under the Americans with Disabilities Act (ADA), (4) disability discrimination under the Rehabilitation Act of 1973, and (5) disability discrimination under the Iowa Civil Rights Act of 1965. The district court granted the State's pre-answer motion to dismiss all claims, finding Smith failed to state any claim for which relief could be granted. Smith appeals arguing that the district court erred in granting the motion to dismiss. II. Standard of Review We review a ruling on a motion to dismiss for correction of errors at law. Iowa R. App. P. 6.4; Southard v. Visa U.S.A. Inc., 734 N.W.2d 192, 194 (Iowa 2007). A motion to dismiss tests the legal sufficiency of the challenged pleading. Thus, the motion must stand or fall on the contents of the petition and matters of which the court can take judicial notice. Well-pled facts in the pleading assailed are deemed admitted. In addition, the petition is assessed in the light most favorable to the plaintiffs, and all doubts and ambiguities are resolved in the plaintiffs' favor. If the viability of a claim is at all debatable, courts should not sustain a motion to dismiss. Southard, 734 N.W.2d at 194 (citations omitted). "A motion to dismiss a petition should only be granted if there is no state of facts conceivable under which a Her subsequent applications for employment

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Smith does not base any claims on the subsequent refusals to hire, apparently conceding that she failed to exhaust administrative remedies as to any claims related to those actions.

4 plaintiff might show a right of recovery." Kingsway Cathedral v. Iowa Dep't of Transp., 711 N.W.2d 6, 7 (Iowa 2006). III. Family Medical Leave Act Smith first contends that the district court erred in granting the State's motion to dismiss her FMLA claims. The FMLA allows employees to miss a total of twelve work weeks within a twelve-month period and provides job security for employees who must miss work because of a serious health condition. 29

U.S.C.

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