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Kuhle v. Iowa Civil Rights Commission

Court of Appeals of Iowa

March 6, 2019

IOWA CIVIL RIGHTS COMMISSION, Respondent-Appellee. and PATRICIA KELLY and MICHAEL FISHNICK, Intervenors-Appellees.

          Appeal from the Iowa District Court for Dubuque County, Thomas A. Bitter, Judge.

         The appellant appeals the district court's ruling affirming an adverse agency decision.

          Allan M. Richards of Richards Law Firm, Tama, for appellant.

          Thomas J. Miller, Attorney General, and Katie Fiala, Assistant Attorney General, for appellee.

          Robert E. Sabers of Robert E. Sabers, P.C., Dubuque, for appellees intervenors.

          Considered by Doyle, P.J., and Mullins and McDonald, JJ.

          DOYLE, Presiding Judge.

         This is an appeal from an order on judicial review affirming an agency decision of the Iowa Civil Rights Commission (ICRC). We affirm the district court.

         By way of background, Patricia Kelly and Michael Fishnick each filed complaints with the ICRC alleging their former employer, Fraternal Order of Eagles #568 (Order), discriminated against them on the basis of age. The ICRC filed statements of charges with the Iowa Department of Inspections and Appeals, naming the respondents as "Dubuque Fraternal Order of Eagles #568" and Steve Kuhle, one of the Order's trustees and the person primarily responsible for supervising the Order's employees and recommending employment action. The administrative process proceeded from there. In her proposed decision, the administrative law judge (ALJ) concluded the Order and Kuhle committed an unfair or discriminatory practice in terminating the employment of Fishnick, and in reducing Kelly's hours, and in constructively discharging Kelly based on her age. The ALJ awarded Fishnick and Kelly damages and attorney fees. The Order had represented itself by various names in different contexts, and at the hearing before the ALJ, the Order's attorney and its witnesses referred to it in various ways. In the ALJ's supplemental proposed decision, respondent's name, as related to the Order, was amended to "Dubuque Aerie #568 of the Fraternal Order of the Eagles, a/k/a Dubuque Fraternal Order of Eagles #568, a/k/a Dubuque Association No. 568 of the Fraternal Order of Eagles, an Iowa nonprofit corporation," and the caption of the matter was changed to reflect the amendment. Steve Kuhle, individually, remained as a named respondent. In its final order, the ICRC adopted the ALJ's decision against the Order but reversed as to Kuhle. The ICRC held that "Kuhle's actions as a trustee of the non-profit organization form the basis for this FINAL ORDER, but he is not personally liable as an individual due to the immunity provided for in Iowa Code Section 504.901(1)." The ICRC adopted the ALJ's award of damages and attorney fees.

         An application for judicial review was filed with the caption, "Steve Kuhle as Fraternal Order of Eagles #568 as Petitioner vs. Iowa Civil Rights Commission." Why petitioner's name was morphed to "Steve Kuhle as Fraternal Order of Eagles #568" is unknown. Kelly and Fishnick intervened. The matter was submitted to the district court on briefs. The court affirmed the final agency decision of the ICRC. "Steve Kuhle as Fraternal Order of Eagles #568, Petitioner," appeals.

         There is no entity or party known as "Steve Kuhle as Fraternal Order of Eagles #568." Steve Kuhle, the individual, was a party in the administrative action. Steve Kuhle was always a separate and distinct party in the proceedings. Steve Kuhle presently has no judgment against him because the ICRC, in its final order, held Kuhle was not personally liable as an individual. It is difficult to discern who the appellant is in this appeal. All references in the appellant's brief to "petitioner" and "appellant" are in the singular. The appellant's brief states, "Kuhle filed a petition for judicial review of a ruling from the Iowa Civil Rights Commission on May 9, 2017 and filed a notice of appeal on March 21, 2018 on the ruling on judicial review." (Emphasis added.) Appellant's argument states, "Kuhle seeks to overturn the ruling of liability for his association with the Fraternal Order of Eagles as to the ruling of a violation by the Civil Rights Commission." (Emphasis added.) While scratching our heads on this issue, we nevertheless proceed forward.

         In the first of two arguments, the appellant makes a constitutional-right-of-freedom-of-association argument. No such argument was raised before the district court. It is well established that this court does not consider issues raised for the first time on appeal. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002).

         In the second argument, the appellant asserts Fishnick and Kelly were employees at will and "[a]s an employee at will, the employer may terminate employment for any reason." The appellant misstates the law. At-will employees may not be terminated for reasons that are legislatively prohibited or for a reason contrary to public policy. See Rivera v. Woodward Resource Ctr., 865 N.W.2d 887, 893 (Iowa 2015); Teachout v. Forest City Cmty. Sch. Dist., 584 N.W.2d 296, 299 (Iowa 1998). The Iowa Legislature has set public policy through the Iowa Civil Rights Act (ICRA). The ICRA legislatively prohibits unlawful discrimination against an employee based on the employee's age. See Iowa Code ...

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