from the Iowa District Court for Polk County, Douglas F.
Reed appeals a jury verdict in favor of the State and the
Iowa Department of Transportation on his claims of race
discrimination and retaliatory discharge.
A. Bullock, Thomas A. Newkirk, and Beatriz A. Mate-Kodjo of
Newkirk Zwagerman, P.L.C., Des Moines, for appellant.
J. Miller, Attorney General, and Julia S. Kim and B.J.
Terrones, Assistant Attorneys General, for appellees.
by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.
VAITHESWARAN, PRESIDING JUDGE.
Reed appeals a jury verdict in favor of the State and the
Iowa Department of Transportation (DOT) on his claims of race
discrimination and retaliatory discharge from
employment. He contends the district court (1) erred
in granting summary judgment on two grounds for retaliation
and (2) abused its discretion in "limiting [his] trial
arguments and evidence to only those arguments and evidence
[he] asserted in resistance to summary judgment."
Background Facts and Proceedings
federal statute known as Title VI states, "No person in
the United States shall, on the ground of race, color, or
national origin, be excluded from participation in, be denied
the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial
assistance." See 42 U.S.C. § 2000d (2015).
A federal report cited the Department of Transportation for
major deficiencies in compliance with the statute and
recommended the establishment of a civil rights unit within
the department to address the deficiencies.
years after the report was issued, the department hired Reed
to the position of civil rights coordinator. His primary
responsibilities were to staff the civil rights unit and
steer the department towards Title VI compliance by
performing "sub-recipient reviews." According to
Reed, a sub-recipient "is a city, county, or regional
planning organization and they would receive funds from the
Iowa DOT to do construction projects within their community.
. . . If they use federal funds for that, they would have a
responsibility to not discriminate in the way they contracted
out the local contractors." Reed's office was to
"send a letter and provide in that letter the tool that
would be used to gather the documents from them and a report
from them on the way they distribute those funds and what
notifications or proof they had that they didn't
discriminate in the way they did that."
African-American. Reed's supervisor was Todd Sadler.
Sadler is white. For approximately two years, Reed worked in
the position without incident, garnering positive performance
evaluations. In the spring of 2012, a vacancy arose for an
external civil rights administrator. Sadler transferred
Jacqueline Miskimins to the position. Reed expressed surprise
at the transfer and discomfort at the way the hire was
Miskimins referred to a black employee as "snarky."
That employee filed an "ongoing workplace environment
complaint" against Miskimins, which was investigated by
Sadler. Sadler learned that team meetings headed by Reed were
"spirited." He asked Reed to complete an internal
plan Reed presented did not satisfy Sadler. Toward the end of
2012, Sadler suspended Reed with pay. Within a week of the
suspension, Reed filed a complaint with the Iowa Civil Rights
Commission. He alleged retaliation and discrimination on the
basis of race. In Reed's view, Sadler was upset with him
because he questioned the removal of a "five years civil
rights experience" qualification requirement in the job
posting for the position Miskimins acquired. Reed also
asserted the investigation resulting in his suspension was a
pretext for the black employee's allegations against
months after Reed filed his civil rights complaint, Sadler
fired Reed. He reasoned Reed:
-Did not ensure the accuracy of sub-recipient and contractor
compliance review data reported to [a federal agency].
-Did not provide [the federal agency] information and access
to data and files when requested.
-Did not complete external complaints or request extensions.
-Refused to update the plan related to addressing and
correcting work environment issues within the Civil Rights
-Failed to comply with DOT PPM 030.02 Computer Workstations
and 030.09 Internet and Intranet Services when you used DOT
resources to send non work related emails during work time.
sued the State for race discrimination and retaliation under
the Iowa Civil Rights Act (ICRA). See Iowa Code
§§ 216.6, 216.11 (2015). The State filed a motion
for summary judgment.
district court found a genuine issue of material fact with
respect to the race discrimination claim. The court next
identified four separate retaliation "claims." The
court found the record "minimally sufficient to create a
fact issue as to whether Reed was engaged in opposing
discrimination when he suggested changes in DOT's
approach to minority contractor recruitment or enforcement of
Title VI requirements regarding minority contractors"
and whether there was a "connection between Reed's
termination and his questions and suggestions regarding
DOT's approach to minority contractor recruitment or
enforcement of Title VI requirements regarding minority
contractors." The court granted the State summary
judgment on two additional "claims": (1)
"Reed's retaliation claim to the extent it is based
on his seeking a promotion" and (2) "his
questioning the removal of the five year experience
requirement when Miskimins was hired." The fourth
"claim," according to the court, was Reed's
assertion that he was fired in retaliation for filing a civil
rights complaint. The court found this "claim" was
not pled and was never properly asserted. Accordingly, the
court declined to address it.
State filed motions in limine seeking in part to exclude (1)
"any evidence or testimony of complaints or
investigations involving other acts and other acts after [the
date of termination]," (2) "any evidence or
testimony that plaintiff was treated differently than . . .
other employees," (3) "any evidence or testimony
regarding the civil rights unit after plaintiff's
discharge," evidence of complaints or investigations of
other DOT employees, evidence comparing his treatment to that
of other DOT employees, and changes in the civil rights unit
after his termination, and (4) "topics irrelevant to the
claims in this case, such as but not limited to, transfer of
Miskimins, hiring process for the external civil rights
administrator position, other employees' qualifications
for the external civil rights administrator position,
perceptions of job duties after the transfer, observations of
the meeting, and observations of a consultant." The
district court conditionally granted the motions, subject to
a showing of relevance at trial.
trial, the court excluded most of the evidence outlined
above. As noted, the jury found for the State. This appeal
Summary Judgment Ruling
judgment is appropriate when the moving party establishes
"there is no genuine issue as to any material fact"
and the party "is entitled to judgment as a matter of
law." Iowa R. Civ. P. 1.981(3). "[W]e view the
record in the light most favorable to the nonmoving party and
allow that party all reasonable inferences that can be drawn
from the record." Wernimont v. Wernimont, 686
N.W.2d 186, 189 (Iowa 2004).
Retaliatory Discharge-Filing of Civil Rights
original petition alleged the department and its directors
retaliated against him "for seeking reclassification,
inquiring into the DOT's compliance with minority
contractor recruitment, and complaining about the DOT's
hiring practices" by (1) "[f]ighting his
reclassification appeal after telling him they planned to
reclassify him," (2) "threatening to
'investigate' him after [he] questioned the unfair
hiring of an under-qualified white employee over three
qualified minority employees," (3) "placing him on
suspension without giving him proper notice of suspension
with the grounds for suspension," and (4) firing him.
Reed subsequently filed two amended petitions, also
containing this paragraph.
State moved for summary judgment. With respect to the
retaliation claim, the State asserted,
Plaintiff cannot maintain any retaliation claim because he
did not engage in any protected activity under the ICRA, did
not suffer any adverse employment action other than his
termination and cannot establish a causal connection between
any alleged "protected activity" and his
termination. Moreover, DOT can establish legitimate,
non-retaliatory reasons for the termination. Plaintiff cannot
establish that these reasons are pretext.
district court disposed of Reed's assertions concerning
his filing of the civil rights complaint as follows:
For the first time, in his memorandum in resistance to the
State's summary judgment motion, Reed asserts that he was
fired in retaliation for his filing a civil rights complaint.
The State objects that this is unfair, that it was entitled
to know the incident upon which Reed's retaliation claim
is based and that Reed cannot assert a new claim for the
first time in a brief responding to a summary judgment
motion. The court agrees. Reed's finally amended
petition, filed long after he filed his civil rights
complaint, specifies the activities he engaged in which he
claims were the basis of the State's retaliation. Filing
a civil rights complaint is not one of them. There is no
indication Reed ever identified this claim in discovery
either. Finally, Reed has never sought to amend his petition
to specify a claim of retaliation based on his filing a civil
rights complaint. The court concludes that Reed has never
asserted this claim and, therefore, addresses only the
retaliation claims which he has properly asserted.
appeal, Reed asserts, "[T]he district court improperly
granted summary judgment for the DOT on the issue of whether
Reed's civil rights complaint could be used to support
his claim of retaliation."
ICRA makes it "an unfair or discriminatory practice
Any person to discriminate or retaliate against another
person in any of the rights protected against discrimination
by this chapter because such person has lawfully opposed any
practice forbidden under this chapter, obeys the provisions
of this chapter, or has filed a complaint, testified, or
assisted in any proceeding under this chapter.
Iowa Code § 216.11(2).
To establish a prima facie case of retaliation under the
ICRA, a plaintiff must show (1) he or she was engaged in
statutorily protected activity, (2) the employer took adverse
employment action against him or her, and (3) there was a
causal connection between his or her participation in the
protected activity and the adverse employment action taken.
Boyle v. Alum-Line, Inc., 710 N.W.2d 741, 750 (Iowa
2006). Courts apply the McDonnell
Douglas three-part burden-shifting analysis to
retaliation claims. See McDonnell Douglas v.
Green, 411 U.S. 792, 802-803 (1973); see also Steck
v. Francis, 365 F.Supp.2d 951, 976 (N.D. Iowa
2005) (reiterating holding in Desert Palace v.
Costa, 539 U.S. 90 (2003) did not change the analysis
for retaliation claims)).
Reed pled a retaliatory discharge claim, he did not cite the
civil rights complaint or allege his termination was in
retaliation for the filing of the complaint. The State seizes
on this omission, arguing Reed "could not be permitted
to add the filing of his [civil rights] complaint as a
protected activity for the first time in resisting summary
judgment." Reed counters that he had no obligation to
plead retaliatory discharge based on the filing of the civil
rights complaint, particularly where the State was on notice
of the complaint and responded to it before his termination.
Reed has the better argument.
is a notice-pleading state." Weyerhaeuser Co. v.
Thermogas Co., 620 N.W.2d 819, 831 (Iowa 2000). "A
petition need not plead ultimate facts to raise or preserve a
claim." Id. There is also no obligation to
plead "specific legal theories for recovery."
Cemen Tech, Inc. v. Three D Indus., LLC, 753 N.W.2d
1, 12 (Iowa 2008). "The petition is sufficient if it
'apprises the opposing party of the incident from which
the claim arose and the general nature of the
action.'" Weyerhaeuser, 620 N.W.2d at 831
(citation omitted); cf. Colbert v. State, Dep't of
Human Servs., No. 13-0633, 2014 WL 5861777, at *3 (Iowa
Ct. App. Nov. 13, 2014) (disagreeing with plaintiff's
assertion that "the petition put the State on notice
that any individual incident during the course of her
employment could be the basis of a retaliation claim"
where the petition only put the State on notice of two
different claims-"a discrete act and a pattern
establishing a hostile work environment"). While notice
pleading does not dispense with the need for specificity,
"[i]t enables a party to postpone the necessity of
specificity from the pleading to the pretrial stage."
Kestar v. Bruns, 326 N.W.2d 279, 284 (Iowa 1982).
This is precisely what happened here.
preliminary matter, it is worth noting that the State, rather
than Reed, raised his filing of the civil rights complaint.
In its statement of undisputed facts supporting its summary
judgment motion, the State included the following paragraphs:
58. Following the interview, the DOT on December 7, 2012,
placed Mr. Reed on paid administrative leave pending
completion of an investigation into possible ...