Hedlund v. State

• Decision Date: 28 June 2019
• Docket Number: No. 18-0567,18-0567
• Citation: 930 N.W.2d 707
• Parties: Larry R. HEDLUND, Appellant, v. STATE of Iowa; K. Brian London, Commissioner of the Iowa Department of Public Safety, Individually; Charis M. Paulson, Director of Criminal Investigation, Individually; Gerard F. Meyers, Assistant Director Division of Criminal Investigation, Individually; and Terry E. Branstad, Individually, Appellees.
• Court: Iowa Supreme Court

930 N.W.2d 707

Larry R. HEDLUND, Appellant,

v.STATE of Iowa; K. Brian London, Commissioner of the Iowa Department of Public Safety, Individually; Charis M. Paulson, Director of Criminal Investigation, Individually; Gerard F. Meyers, Assistant Director Division of Criminal Investigation, Individually; and Terry E. Branstad, Individually, Appellees.

No. 18-0567

Supreme Court of Iowa.

Filed June 28, 2019

Amended September 10, 2019

Thomas J. Duff and Elizabeth Flansburg of Duff Law Firm, P.L.C., West Des Moines, and Roxanne Barton Conlin of Roxanne Conlin & Associates, P.C., Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Jeffrey C. Peterzalek and William Pearson, Assistant Attorneys General, for appellees.

CHRISTENSEN, Justice.

Plaintiff seeks review of a district court order granting summary judgment to the defendants on all claims in an employment case. On appeal, plaintiff raises three issues. He argues the district court erred when it determined judicial review following the administrative process was the exclusive means to seek redress for alleged retaliation against a whistleblower. Next, he argues the district court erred by denying his age discrimination claim. Lastly, the plaintiff challenges the district court’s finding of no "outrageous" conduct sufficient to support his tort of intentional infliction of emotional distress.

We must first decide whether plaintiff’s direct civil action under Iowa Code section 70A.28(5) (2014), the whistleblower statute, is precluded by the availability of an administrative remedy. Relying on this court’s decision in Walsh v. Wahlert , 913 N.W.2d 517 (2018), we conclude section 70A.28(5) expressly creates an independent cause of action in the alternative to administrative remedies under Iowa Code chapter 17A. Therefore, we reverse summary judgment as to that issue. For plaintiff’s claim of age discrimination under the Iowa Civil Rights Act, we affirm the district court’s determination that plaintiff failed to present sufficient evidence from which a reasonable jury could infer age discrimination was the real reason for his termination. We also affirm summary judgment on plaintiff’s intentional infliction of emotional distress claim. None of the defendants' conduct was sufficiently egregious to satisfy the "outrageousness" prong.

I. Background Facts and Proceedings.

In 1988, Larry Hedlund began a career with the Iowa Department of Public Safety (DPS) as a trooper in the Iowa State Patrol. In 1989, he became a special agent for the Iowa Department of Criminal Investigation (DCI), and in 2010, was promoted to special agent in charge (SAC).

In October 2012, Brian London became commissioner of DPS. London then appointed Assistant Director Charis Paulson as the director of DCI. In January 2013, SAC Gerard Meyers was promoted to assistant director for field operations of DCI and became Hedlund’s direct supervisor. About a month later, Hedlund composed and circulated an email critical of Meyers. Members of DCI, including Hedlund’s subordinate agents, received the email. The following day, Meyers set up a meeting with Hedlund to discuss, among other things, the email. During that meeting, Hedlund was not disciplined although Meyers advised him to stop circulating critical emails. Meyers also told Hedlund he did not want to have issues with him since he was in the "twilight of his career." However, Hedlund continued sending emails critical of upper management within DPS and DCI.

On April 17, 2013, Hedlund filed a complaint with the Professional Standards Bureau (PSB) against Paulson. The complaint alleged that on August 28, 2012, Paulson distributed an email to members of DPS in violation of department policy. Hedlund also alleged Paulson condoned the persistent misuse of physical fitness incentive days. Similarly, on May 29, 2013, Hedlund filed a complaint with PSB against Meyers. The complaint alleged Meyers condoned the misuse of physical fitness incentive days and encouraged personnel to ignore parking citations.

On April 18, 2013, Paulson, Meyers, and the SACs held a conference call to discuss strategic planning regarding the Field Operations Bureau of DCI. Paulson indicated "Hedlund became extremely angry, yelled at [him] and spoke in an unprofessional and insubordinate manner." The strategic planning was again discussed during an in-person meeting on April 23, 2013. The SACs expressed resistance to the proposed reduction of zones and agents. The issue of agent burn-out and suicide arose. Hedlund agreed with the stress-related issues and mentioned a past colleague committed suicide. Paulson reported Hedlund mentioned suicide four times. On April 25, Hedlund sent another email to his subordinates critical of DPS management.

Hedlund requested and received approval for vacation on April 26 to attend his niece’s art show in Cedar Rapids. The evening before, he drove his state vehicle from Fort Dodge to Cedar Rapids where he spent the night. The next morning, Hedlund contacted Wade Kisner, a retired DCI agent, to discuss cold cases, and they met for a few hours. That same day, Paulson filed a complaint with PSB against Hedlund. Paulson claimed Hedlund had been disrespectful and insubordinate during the April 18 conference call. Unaware of Hedlund’s approved vacation day, Paulson attempted to contact Hedlund on April 26. Paulson called and texted Hedlund numerous times. Paulson indicated this was an attempt to set up a meeting regarding Hedlund’s conduct. When asked if he was working, Hedlund responded "yes and no."¹ Paulson rescheduled the meeting to Monday April 29² because of Hedlund’s approved vacation day.

Hedlund departed from Cedar Rapids on the afternoon of April 26. On his way to Fort Dodge, he spotted a black SUV doing a "hard ninety." Hedlund contacted the Iowa State Patrol. Trooper Matt Eimers intercepted the speeding SUV but determined it was an official state vehicle under the operation of another Iowa State Patrol trooper for the purpose of transporting the Governor of Iowa. The SUV was not stopped and no citation was issued.

On April 29, Hedlund sent Paulson a lengthy email regarding Meyers’s inability to perform his job. A half-hour later, Hedlund sent another email to Paulson and Meyers designated "a complaint against myself." This email detailed the Governor’s SUV incident. Hedlund summarized his failure to issue a citation to a speeding vehicle.

I take full responsibility for the incident being initiated and as such will accept the responsibility of ensuring that the appropriate actions are taken to address this incident. As the ranking sworn peace officer involved in this incident and as a Supervisor with the Department of Public Safety, I should have insisted that the vehicle be stopped.

That same evening, Hedlund sent a third email to Paulson, Meyers, and his subordinates. The email indicated Hedlund needed personal time for the remainder of the day as well as April 30. In response, Meyers noted Hedlund was not on approved leave status. On April 30, Hedlund sent Paulson and Meyers an email that explained his leave request was a sick day. Hedlund’s email stated, "I consider it a sick day due to the stress that I am experiencing over the issues currently going on in the DCI/DPS." Hedlund subsequently provided a doctor’s letter excusing him from work April 30 through May 6.

On May 1, Hedlund was placed on administrative leave with pay and provided a notice of investigation. The notice alleged Hedlund engaged in various acts of misconduct during the previous month. That day, the PSB notice of investigation was delivered to Hedlund’s home by Meyers, Assistant Director of Field Operations David Jobes, and Sergeant Wes Niles. Hedlund was relieved of his state-issued phone, car keys, service weapon, and various other items. On May 14, Hedlund was ordered to attend a fitness-for-duty evaluation. Hedlund was declared fit for duty at that time.

PSB investigators interviewed Hedlund on June 19. On July 17, PSB issued a 500-page report of its investigation. It found Hedlund engaged in multiple acts of insubordination. That same day, Paulson terminated Hedlund. The termination alleged Hedlund engaged in unbecoming or prohibited conduct, violated the courteous behavior rule, and improperly used state property. The termination also included a notice of right to appeal in accordance with Iowa Code section 80.15.³

On July 18, Governor Branstad held a press conference. Governor Branstad addressed several matters, including Hedlund’s termination. In response to a press question about the relationship between Hedlund’s employment issues and any "morale issues" at DPS, Governor Branstad stated, "They [DPS] felt for the morale and for the safety and well-being of the Department, this was action that was necessary." When asked if the termination was required, Governor Branstad responded he believed the action was "a fair and just decision."

On August 8, Hedlund filed a petition in district court and alleged wrongful discharge in violation of public policy and violation of Iowa Code chapter 70A.⁴ On August 13, Hedlund filed an appeal with the Employment Appeal Board (EAB) pursuant to Iowa Code section 80.15. On January 16, 2014, Hedlund voluntarily dismissed his EAB appeal prior to the evidentiary hearing. EAB granted the dismissal on January 22. Pursuant to this dismissal, DPS notified Hedlund his termination would be effective January 30.

On January 23, Hedlund filed a complaint with the Iowa Civil Rights Commission. Hedlund indicated he was discriminated against based on his age. Hedlund indicated he suffered two adverse actions—"disciplined/suspended" and "terminated." He did not claim he had been "forced to quit/retire" or "harass[ed]." The complaint named DPS and Meyers as the actors.

On January 29, one day before his termination would have become effective, Hedlund filed an application with the Peace Officers' Retirement System (PORS) for retirement benefits. The PORS...