McElroy v. State, 03-1476.

• Citation: 703 N.W.2d 385
• Decision Date: 17 June 2005
• Docket Number: No. 03-1476.,03-1476.
• Parties: Julie DeVall McELROY, Appellee, v. STATE of Iowa and Iowa State University of Science and Technology, Appellants.
• Court: United States State Supreme Court of Iowa

703 N.W.2d 385

Julie DeVall McELROY, Appellee, v. STATE of Iowa and Iowa State University of Science and Technology, Appellants.

No. 03-1476.

Supreme Court of Iowa.

June 17, 2005.

Rehearing Denied September 22, 2005.

Thomas J. Miller, Attorney General, and George A. Carroll, Assistant Attorney General, for appellants.

Paige Fiedler of Fiedler, Townsend & Newkirk, P.L.C., Johnston, and Roxanne Barton Conlin of Roxanne Conlin & Associates, P.C., Des Moines, for appellee.

STREIT, Justice.

This court is hip deep in issues. Together the parties in this sexual harassment case have appealed the district court's rulings on nearly thirty grounds. Because the plaintiff failed to exhaust her administrative remedies on her retaliation-in-employment claim, we reverse and remand for a new trial. At that trial, the plaintiff shall have the right to have her state law claims tried to a jury.

I. Facts and Prior Proceedings

In 1994, Julie McElroy enrolled as a graduate student in the doctoral program at the Iowa State University College of Education. Lynn Glass, a male professor in the College, was McElroy's academic advisor. ISU also hired McElroy to work as a research assistant for Glass. Glass taught at least one of McElroy's classes.

Glass repeatedly subjected McElroy to unwelcome touching and grossly inappropriate comments. The harassment reached its zenith (or nadir) in April 1995 when ISU sent McElroy to Russia to help Glass run a month-long cultural and educational exchange program for high school students.

Upon arrival at their hotel in Russia, McElroy discovered Glass had arranged for them to share a two-room suite—with both beds in one room. McElroy told Glass she was uncomfortable with the sleeping arrangements and insisted one of the beds be moved to the other room. Glass became furious but eventually relented.

Glass later publicly berated McElroy for not letting him "take care" of her on their first night at the hotel. He told her she could "kiss her Ph.D. good-bye." While the two were riding the Moscow Metro, he threatened to leave her alone and let her find her way home. This was particularly troublesome because Glass had taken McElroy's passport and money "for safekeeping" after they had deplaned.

At other times on the trip, Glass gave McElroy a massage after she told him not to do so; rubbed lotion on her feet against her will in a manner that evoked images of sexual intercourse; told her intimate details about his sex life, including a disgustingly detailed description of his semen; kissed her after she told him not to touch her; and ran suddenly into her room and told her he had just "messed himself." We need not repeat all the salacious facts here; nonetheless we remain fully cognizant of them.

Shortly after returning home from Russia, McElroy made a sexual harassment complaint to Ann Thompson, a department chair in the College. Thompson notified Noreen Daly, Dean of the College. For the most part, Glass fessed up to his actions. Thompson removed Glass from his position as McElroy's academic advisor and instructor. Thompson also reassigned McElroy to work as a graduate assistant for another professor. Thompson and Daly told Glass to have no contact with McElroy.

Glass continued to pester McElroy. In June 1995, McElroy filed a formal complaint with the ISU Affirmative Action Office. McElroy was frustrated that ISU was not taking adequate steps to stop Glass from harassing her. She also voiced concern that ISU would retaliate against her. ISU appointed an attorney, Jeanne Johnson, to investigate.

Johnson concluded Glass had violated ISU's sexual harassment policy, created a hostile work environment, and interfered with McElroy's academic progress. Johnson recommended ISU eliminate interaction between Glass and McElroy, conduct sexual harassment training, and suspend Glass without pay for one semester. Dean Daly adopted Johnson's recommendations but increased the term of the suspension to one year. ISU's president tried to fire Glass, but dropped the formal proceedings necessary to dismiss a tenured faculty member after Glass was diagnosed with terminal colon cancer. Glass died in May 1997.

In November 1997, McElroy sued the State of Iowa and ISU (the defendants) for sexual harassment in employment and education, in violation of various federal and state statutes. McElroy maintained the defendants did not adequately address Glass's behavior. Instead of protecting her from Glass when she complained, McElroy alleged the defendants retaliated by changing the terms of her employment. McElroy claimed she suffered psychologically and physically as a result. She dropped out of the graduate program on December 31, 1997.

McElroy initially lost at trial, but we reversed on account of a confusing jury instruction. See generally McElroy v. State, 637 N.W.2d 488 (Iowa 2001)

[McElroy I]. On remand, McElroy won. A jury awarded her over $3 million in damages on her federal claims, including approximately $2.5 million for emotional distress. Although the court also found a violation of state law, it ruled most of her state law damages were subsumed within her federal law damages. The defendants appealed and McElroy cross-appealed. We consolidated all appeals.

Additional facts will be set forth below. We first consider the appeal issues, then the cross-appeal issues.

II. The Merits: The Appeal

The defendants ostensibly raise nine issues for our review on appeal, but some of these have as many as eleven sub-issues. We examine these arguments in turn, to the extent necessary.

A. Scope of Retrial

The defendants contend the district court erred when it granted a retrial of all the issues in the case. The defendants posit McElroy I only required retrial of McElroy's employment discrimination claim because the erroneous jury instruction involved solely that claim. They argue employment discrimination is distinct from retaliation and education discrimination. The parties agree our review is for errors at law.

The general rule is that when a new trial is granted, all issues must be retried. See, e.g., Hawkeye Bank v. State, 515 N.W.2d 348, 353 (Iowa 1994)

; Sauer v. Scott, 176 N.W.2d 140, 147 (Iowa 1970); Larimer v. Platte, 243 Iowa 1167, 1175-76, 53 N.W.2d 262, 267 (1952); Woodward v. Horst, 10 Iowa 120, 123 (1859); see also 5 C.J.S. Appeal & Error § 947 (1993).

[T]he granting of partial new trials is a practice not to be commended. . . . . As a condition to the granting of a partial new trial, it should appear that the issue to be tried is distinct and separable from the other issues, and that the new trial can be had without danger of complications with other matters. . . . Nor may [only] certain issues be retried unless it appears that the other issues have been rightly settled and injustice will not be occasioned.

Larimer, 243 Iowa at 1176-77, 53 N.W.2d at 267-68 (citations and internal quotations omitted); accord Woodward, 10 Iowa at 123 (holding partial retrial warranted if convenient, nonprejudicial, and "not attended with too much confusion"). On occasion we have limited retrial to certain issues, but when we have done so we have said so. See, e.g., Dailey v. Holiday Distrib. Corp., 260 Iowa 859, 877, 151 N.W.2d 477, 489 (1967)

; McCarville v. Ream, 247 Iowa 1, 10-14, 72 N.W.2d 476, 481-83 (1955); Woodward, 10 Iowa at 124.

We did not limit the scope of the retrial in McElroy I. The record before us shows McElroy requested retrial of all claims in that appeal. Finding reversible error with respect to one of those claims, we ordered a new trial. McElroy I, 637 N.W.2d at 502. We did so without qualification. Id.

B. Exhaustion of Administrative Remedies

In the district court, the defendants objected to the trial of McElroy's retaliation claims because she had not exhausted her administrative remedies. Specifically, the defendants claimed McElroy had only notified the Equal Employment Opportunity Commission (EEOC) and Iowa Civil Rights Commission (ICRC) about her federal and state sex discrimination claims, not her retaliation claims. We consider the federal and state claims separately.

1. Title VII

Title VII explicitly prohibits both sex discrimination and retaliation. See 42 U.S.C. § 2000e et seq.

However, Title VII establishes an administrative procedure which a complaining employee must follow. . . . Exhaustion of administrative remedies is central to Title VII's statutory scheme because it provides the [administrative agency] the first opportunity to investigate discriminatory practices and enables it to perform its roles of obtaining voluntary compliance and promoting conciliatory efforts.

Williams v. Little Rock Mun. Water Works, 21 F.3d 218, 222 (8th Cir.1994) (citations omitted). Exhaustion of administrative remedies under Title VII requires a claimant to give notice of all claims in the initial administrative complaint. Stuart v. Gen. Motors Corp., 217 F.3d 621, 630-31 (8th Cir.2000).

McElroy filed her complaint with the ICRC on March 14, 1997. (The same complaint was cross-filed with the EEOC). She used the standard form, which requires complainants to identify the bases of their harassment claims by checking the applicable boxes. McElroy checked the box labeled "sex" but not the "retaliation" box.¹ When the ICRC asked McElroy to state in narrative fashion why she felt she was discriminated against, McElroy described Glass's continuing harassment. Although she indicated the defendants were not adequately addressing this ongoing harassment, she did not describe any acts of retaliation. Indeed, the reviewing officer specifically noted that "the only issue is whether [the defendants] took reasonable measures to stop the harassment and keep [McElroy] from working in a hostile environment." Because McElroy did not allege retaliation, she therefore failed to exhaust her Title VII remedies with respect to alleged retaliation-in-employment. See Williams, 21 F.3d at 222-23

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