McElroy v. State

Decision Date19 December 2001
Docket NumberNo. 99-1446.,99-1446.
Citation637 N.W.2d 488
PartiesJulie DeVall McELROY, Appellant, v. STATE of Iowa and Iowa State University of Science and Technology, Appellees.
CourtIowa Supreme Court

Paige Fiedler of Fiedler & Townsend, P.L.C., Johnston, for appellant.

Thomas J. Miller, Attorney General, and George A. Carroll and Darci L. Frahm, Assistant Attorneys General, for appellees.

CADY, Justice.

Julie DeVall McElroy appeals from a jury verdict denying her claim for sexual harassment against the State of Iowa and Iowa State University. She asserts the district court abused its discretion in permitting the defendants to file an untimely answer, improperly excluded evidence as inadmissible hearsay, and erroneously instructed the jury on the elements of sexual harassment. We reverse and remand for a new trial.

I. Background Facts and Proceedings.

Julie DeVall McElroy was enrolled as a graduate student in the Department of Curriculum and Instruction of the College of Education at Iowa State University (ISU). During the 1994-95 academic school year, McElroy was employed as a graduate assistant to Dr. Lynn Glass. Dr. Glass was a tenured professor of education in the Department. In addition to supervising McElroy at work, Dr. Glass served as her academic advisor and instructed her in at least one course. Dr. Glass was a male.

McElroy was primarily responsible for assisting Dr. Glass in organizing the SciLink II project. This project was an exchange and relationship-building program between high school students in Russia and the United States. The program culminated with a month-long trip to Moscow, Russia. It was sponsored by ISU. In the beginning of April 1995, McElroy accompanied Dr. Glass, along with fifty Iowa high school students and five Iowa high school teachers, to Moscow for the program. This trip was considered a condition of McElroy's employment.

Throughout the trip, Dr. Glass sporadically engaged in inappropriate behavior towards McElroy. Dr. Glass arranged for McElroy to share a two-room hotel suite with him for the entire trip. One room contained two beds, while the other room contained the couch, refrigerator, and television. On numerous occasions, Dr. Glass touched McElroy on her hands, arms, and knees, and gave her neck and foot massages. Dr. Glass also kissed McElroy on her forehead and cheeks. In addition, Dr. Glass shared intimate details regarding his sexual life with his wife, as well as other personal sexual experiences. When McElroy informed Dr. Glass she was uncomfortable with his behavior and the sleeping arrangements, he became upset and confrontational. McElroy detailed Dr. Glass's conduct and her feelings in a letter resembling a journal she wrote to her fiancé. During the trip, McElroy slept in the sitting room and Dr. Glass slept in the bedroom.

Approximately two weeks after returning from Russia, McElroy made a sexual harassment complaint. On May 15, 1995, McElroy showed the Department chair, Dr. Ann Thompson, the letter describing her experiences. Additionally, some of McElroy's complaints predated the Moscow trip, and basically consisted of inappropriate comments. Dr. Thompson notified Noreen Daly, the Dean of the College of Education, of the incidents. Dr. Glass acknowledged his inappropriate behavior to Dr. Thompson and Dean Daly. He was then instructed to have no contact with McElroy. Furthermore, Dr. Thompson removed Dr. Glass from his position as McElroy's academic advisor and instructor, and reassigned McElroy to work as a graduate assistant for another professor.

On June 29, 1995, McElroy filed a formal complaint with the ISU Affirmative Action Office. Jeanne Johnson, an attorney, was appointed by ISU to investigate the complaint. Johnson conducted an extensive investigation and concluded Dr. Glass's behavior was inappropriate and unprofessional, and violated the university's policy against sexual harassment. In addition, Johnson concluded Dr. Glass's conduct created a hostile employment and academic environment, and interfered with McElroy's academic progress. Johnson made several recommendations to ISU to rectify the situation and prevent further incidents. These recommendations included: eliminating interaction between Dr. Glass and McElroy and any similar personal relationships between Dr. Glass and any other students; sexual harassment training for Dr. Glass and for the faculty, staff, and graduate students in the College of Education; and a one-semester suspension without pay for Dr. Glass. Dean Daly adopted the report and its recommendations, but increased the suspension to a period of one year.

Dr. Martin Jischke, the president of ISU, invoked formal proceedings utilized for dismissal of a tenured faculty member. However, prior to the convening of the faculty committee that would hold the disciplinary hearing, Dr. Glass learned he had terminal colon cancer. Upon Dr. Glass's request, Dr. Jischke agreed to drop the disciplinary action against Dr. Glass due to his fragile health. McElroy did not contest this decision. Dr. Glass died approximately one year later.

In addition to the prior history of sexual harassment by Dr. Glass, McElroy claimed ISU failed to protect her from continuing harassment by Dr. Glass after she filed the complaint. McElroy alleged Dr. Glass violated Dr. Thompson's no-contact directive approximately seven times. Dr. Glass allegedly opened a door for McElroy, said "hello" in the hallway, and entered rooms to speak with McElroy when she was alone. McElroy claims she informed ISU authorities of most of the violations. ISU maintained it responded to each report of any attempt by Dr. Glass to maintain contact with McElroy.

McElroy filed a petition at law against the State and ISU in the district court on November 3, 1997, and an amended petition on November 5, 1997. The defendants were served on November 7.1 The petition asserted seven counts, which included federal and state employment and education discrimination claims, a violation of 42 U.S.C. § 1983, and assault and battery and negligence claims.

On December 1, 1997, the defendants filed a motion for extension of time to move or plead so they could prepare a motion to dismiss. The defendants subsequently filed an extensive motion to dismiss on December 24, 1997. After McElroy agreed to dismiss her 42 U.S.C. § 1983 claim and her assault and battery and negligence claims, the defendants withdrew their motion to dismiss. A uniform scheduling order was entered which set the deadline for filing pleadings for December 10, 1998, and scheduled the trial for February 8, 1999. The trial date was later continued to June 7, 1999.

On October 27, 1998, the defendants filed a comprehensive motion for summary judgment. Based on an agreement between the court and counsel, McElroy received an extension of time to file her resistance. McElroy filed her resistance to the summary judgment motion on March 25, 1999. The court denied the motion on May 21, 1999.

On May 24, 1999, McElroy notified the defendants they had failed to file an answer to her petition. The defendants immediately filed a motion for leave to file an answer, and attached their answer as an exhibit. McElroy filed a resistance to the motion. She claimed prejudice and lack of good cause.

The district court granted the motion to file an answer on the morning of trial. The court found the defendants demonstrated good cause. Additionally, the court noted the law generally favors a trial on the merits. However, the court struck the affirmative defense of failure to mitigate damages from the answer. The court concluded McElroy would be prejudiced if the defendants were permitted to introduce that defense so late in the proceedings. Nevertheless, the defendants were allowed to present the affirmative defenses of (1) prompt remedial action, (2) exercise of reasonable care to prevent and correct sexually harassing behavior, and (3) failure of plaintiff to take advantage of preventive and corrective opportunities or to otherwise avoid harm.

During the presentation of her case, the district court excluded evidence McElroy attempted to introduce as inadmissible hearsay. First, the court limited the testimony of Lyn Shiffler, a high school teacher at Des Moines Roosevelt High School who worked on the SciLink II project and went to Russia in April 1995. Shiffler was prevented from testifying to a statement Dr. Glass made while at a pre-trip reception Shiffler hosted in her home for members of the project, and to conversations she had with McElroy in Russia concerning Dr. Glass's behavior. McElroy made an offer of proof and asserted the proposed testimony was not hearsay because it was not offered to prove its truth and, alternatively, constituted an exception to the hearsay rule.

Second, the district court limited the testimony of Dale Striegle. Striegle was a colleague of McElroy, and was Dr. Glass's graduate assistant before McElroy. Striegle accompanied Dr. Glass to Russia in 1994. The district court excluded testimony concerning complaints Striegle received from other students concerning Dr. Glass's behavior, as well as sexual comments Dr. Glass had made to Striegle regarding McElroy. McElroy failed to make an offer of proof following Striegle's testimony, nor did she offer an explanation on the record in an attempt to defeat the defendants' hearsay objections.

Lastly, the district court excluded portions of Johnson's investigative report and the letter McElroy wrote to her fiancé while in Russia. Redacted versions of both documents were offered in evidence as exhibits. Witness statements from interviews Johnson conducted were excluded from the report on hearsay grounds. Likewise, statements made by others were excluded from the letter on hearsay grounds. McElroy made offers of proof of the entire investigative report and of the letter.

At the close of the evidence, McElroy objected to several jury instructions. In particular, McElroy...

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