Smith v. Iowa State Univ. of Sci. & Tech. & State

• Decision Date: 14 August 2014
• Docket Number: No. 12–1182.,12–1182.
• Citation: 851 N.W.2d 1
• Parties: Dennis L. SMITH, Appellee, v. IOWA STATE UNIVERSITY OF SCIENCE AND TECHNOLOGY and State of Iowa, Appellants.
• Court: Iowa Supreme Court

851 N.W.2d 1

Dennis L. SMITH, Appellee,

v.IOWA STATE UNIVERSITY OF SCIENCE AND TECHNOLOGY and State of Iowa, Appellants.

No. 12–1182.

Supreme Court of Iowa.

July 18, 2014.

Rehearing Denied Aug. 14, 2014.

William W. Graham and Aimee R. Campbell of Graham, Ervanian & Cacciatore, LLP, Des Moines, for appellee.

Thomas J. Miller, Attorney General, Diane M. Stahle and Jordan G. Esbrook, Assistant Attorneys General, for appellants.

MANSFIELD, Justice.

After a trial of more than two weeks, a jury and a judge awarded Dennis Smith, a writer formerly employed by the College of Engineering at Iowa State University (ISU), a total of $1,284,027.40 in damages against ISU and the State of Iowa. Smith recovered $500,000 for intentional infliction of emotional distress and an additional $784,027.40 under a whistleblowing statute for retaliation suffered because he reported managerial misconduct to ISU's president. ISU and the State appealed, and the court of appeals affirmed the intentional infliction of emotional distress award, but set aside the statutory whistleblowing award.

On further review, for the reasons described herein, we too affirm the jury's emotional distress award. We also reduce, but do not set aside, the district court's award of damages under the whistleblowing statute. We agree with the State that Smith's loss of his job in a downsizing that occurred in 2010 cannot be causally linked to any reporting he made to ISU's president approximately three years earlier, and therefore we vacate $634,027.04 of his whistleblower damages. In all other respects, we uphold the district court's rulings.

I. Facts and Procedural History.¹

Dennis Smith was born and raised in Omaha, Nebraska. After holding a variety of jobs, getting married, and graduating from college, Smith entered a doctoral program in English at the University of Iowa in the late 1980s. While there, Smith established and directed a gun control organization. Smith did not obtain his doctorate, but his spouse received a graduate degree from the university. In 1999, both of them moved to Des Moines so she could pursue her career. In July 2000, Smith's spouse suffered a devastating stroke that left her homebound.

In April 2001, Smith was hired at ISU to be a Communication Specialist III for the Engineering Communications and Marketing (ECM) Department of the College of Engineering at ISU. Smith wrote and edited articles for alumni magazines and other print publications. ECM's clients included not only the College of Engineering, but also other ISU colleges and even some outside entities not affiliated with ISU.² ECM's staff included writers like Smith, as well as web design and graphic design specialists. As it later turned out, one advantage of this position for Smith was that he could communicate by cell phone or video computer link throughout the day with his disabled wife.

Smith's boss was Pamela Reinig, the director of the ECM department. Over the years, Smith received positive job performance evaluations from her. Reinig's reviews of Smith's writing were especially laudatory. By 2002, Smith was taking on supervisory responsibilities, and Reinig told him she would have his job classification upgraded to Communications Specialist IV. As part of Smith's July 2002 evaluation, Reinig wrote, “I will submit a reclassification request for your position in August 2002. Since January you have been doing the work of a Communications Specialist IV, so it is fitting to try to get you reclassified to that level.” Smith received and retained a copy of this 2002 written evaluation of his performance.³

For the next three years, Smith did not get the promotion. Reinig gave Smith various excuses as to why he had not received it, while continuing to tell Smith she was submitting him annually for reclassification. It later came to light that, despite her promises, Reinig had not submitted Smith's name for reclassification.

Smith finally obtained the upgraded classification in July 2005. This occurred shortly after he notified Reinig that he was looking for work elsewhere. Smith told Reinig at the time he was “basically fed up with supervising people at [his] own pay grade.” In response, Reinig begged Smith not to leave and assured him that he would not have to supervise anyone and that she would submit him again for reclassification. Thus, Smith received the promotion, but no longer had to supervise anyone. Smith later wrote that he was “relieved to be free of responsibility for supervising employees who were not qualified for their positions and in whose hiring [he] had little apparent influence.”

Smith acknowledged that he has an “assertive personality.” As he put it, “I'm not passive certainly. I mean I tell the people what I feel, and I try to do it as respectfully as possible.” Smith denied that he was ever inappropriately aggressive. He testified that Reinig was aware he had previously headed a gun control organization. Numerous coworkers testified that Smith never acted in an angry or threatening manner.

In 2006, Reinig began the hiring process for a Communications Specialist IV in ECM who would have supervisory responsibilities. Reinig told Smith she wanted him to make the final decision on whom to hire because she felt she had a conflict of interest with respect to one of the candidates, Eric Dieterle. Dieterle had previously worked for Reinig in the ECM department, leaving in 2000 before Smith arrived.⁴ After examining the thirteen candidates, Smith rated Dieterle at the top and as “the best person for the job,” but also told Reinig that “the pool was weak.” In his detailed assessment of Dieterle for Reinig, Smith wrote:

[Dieterle] is clearly a talented writer and a competent (if not particularly robust) editor, and I would not hesitate to recommend him at the level of CommunicationsSpecialist III. However, to support his candidacy for Communications Specialist IV in the College of Engineering (as opposed, say, to LAS or Business) requires evidence of accomplishment and/or experience that he did not present in either the application or interview process.

On a personal level, I would be surprised should Eric, if hired, not fulfill the demands of the position and fulfill them well. But that is an assessment based on instinct, and instinct in the absence of objective evidence is not sufficient for me to make a positive recommendation in this case....

The bottom line: Given the lack of evidence of relevant experience in general feature-length writing and editing, much less in the areas of science or technology, I cannot specifically recommend Eric for the position. However, given his obvious talent and intelligence as a writer, coupled with some evidence of higher-level editorial instincts and capabilities, I would have no objection to his joining ECM. We are desperately in need of higher-level writing skills if we are to achieve the marketing goals of the college, as I understand them. However, unless we reopen a considerably expanded search process and/or raise salary levels to compete for science and technology writers at the highest levels, Eric may represent the best choice for the college at this time.

Reinig conceded in an email to Smith, “What I really need is to hire another you—but that's probably a once-in-a-lifetime deal.”

Reinig ended up hiring Dieterle later in 2006. Although another qualified candidate had entered the pool by then, Reinig offered the job to Dieterle before giving the other candidate an opportunity to finish her review and application procedures. An internal investigation of the hiring process later revealed “serious violations of policy” and “manipulation of the process and inaccurate accounts of the process by Ms. Reinig.”

When Reinig began the job search for the position eventually filled by Dieterle, she announced that the person hired would not supervise Smith. However, in January 2007, Smith's wife fell at home and sustained a shoulder injury. Smith took family medical leave to attend to her, although he continued to do some work from home. The following month, Reinig emailed Smith to notify him that Dieterle would supervise Smith's newsletter work.

On March 19, when Smith returned to ISU from his leave, he went to Reinig's office. Smith told Reinig he wanted to discuss her directive that Dieterle would be supervising Smith's newsletter work. Reinig cut Smith off and said, “[T]here's nothing to talk about really, it's my decision so that's what we're going to do.” Smith admits he “got [his] back up,” expressed his frustrations, and criticized the Dieterle hire. Reinig responded defensively and told Smith that if he did not like it, he could take his concerns to the dean. Smith felt he had never been treated that peremptorily before by Reinig. As a result of their argument, Reinig issued Smith a “verbal warning” on March 21. Smith denied that he was abusive or threatening during the meeting; he simply challenged Reinig on her broken promises.

Meanwhile, just before Smith went on leave in January 2007, it had come to his attention that ECM was not receiving payment for certain work it was performing for an outside entity—the Council of Advancement for Support of Education (CASE). Smith did not raise this subject with Reinig in their March 19 meeting.

Following his March 19 episode with Reinig, Smith did some research on his job-related rights and learned he might be eligible for a retroactive pay increase if he had qualified for reclassification before 2005. He went to the ISU compensation and classification office, where he learned Reinig had never submitted his name for reclassification before 2005. At this point, Smith decided to act on Reinig's invitation to “take it to the dean.”

Smith began writing up a grievance but also consulted with an ISU faculty member whom he trusted. The faculty member recommended to Smith that he bring his concerns about the CASE billing to the Dean of the College of Engineering, Dr....