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Reed v. State

Court of Appeals of Iowa

July 18, 2018

WALTER REED, Plaintiff-Appellant,

          Appeal from the Iowa District Court for Polk County, Douglas F. Staskal, Judge.

         Walter 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.

          Lori A. Bullock, Thomas A. Newkirk, and Beatriz A. Mate-Kodjo of Newkirk Zwagerman, P.L.C., Des Moines, for appellant.

          Thomas J. Miller, Attorney General, and Julia S. Kim and B.J. Terrones, Assistant Attorneys General, for appellees.

          Heard by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.


         Walter 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.[1] 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."

         I. Background Facts and Proceedings

         A 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.

         Two 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."

         Reed is 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 announced.

         Meanwhile, 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 communication plan.

         The 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 Miskimins.

         Two 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 team.
-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.

         Reed 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.

         The 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.

         The 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.

         During trial, the court excluded most of the evidence outlined above. As noted, the jury found for the State. This appeal followed.

         II. Summary Judgment Ruling

         Summary 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).

         A. Retaliatory Discharge-Filing of Civil Rights Complaint

         Reed's 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.

         The 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.

         The 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.

         On 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."

         The ICRA makes it "an unfair or discriminatory practice for":

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).[2] 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)).

         Although 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.

         "Iowa 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.

         As a 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 ...

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