Stillians v. State of Iowa, 87-1321

• Decision Date: 30 March 1988
• Docket Number: No. 87-1321,87-1321
• Citation: 843 F.2d 276
• Parties: 46 Fair Empl.Prac.Cas. 645, 110 A.L.R.Fed. 475, 46 Empl. Prac. Dec. P 37,891, 56 USLW 2563 Nancy C. STILLIANS, Appellant, v. STATE OF IOWA, et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 276

843 F.2d 276

46 Fair Empl.Prac.Cas. 645, 110 A.L.R.Fed. 475,

46 Empl. Prac. Dec. P 37,891, 56 USLW 2563

Nancy C. STILLIANS, Appellant, v. STATE OF IOWA, et al., Appellees.

No. 87-1321.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 3, 1987.

Decided March 30, 1988.

Artis Reis Breon, Des Moines, Iowa, for appellant.

Scott M. Galenbeck, Asst. Atty. Gen., Des Moines, Iowa, for appellees.

Before LAY, Chief Judge, FLOYD R. GIBSON, Senior Circuit Judge, and MAGILL, Circuit Judge.

FLOYD R. GIBSON, Senior Circuit Judge.

Nancy C. Stillians appeals from an order of the district court ¹ granting defendants' summary judgment motion in this suit brought under the Age Discrimination in Employment Act, 29 U.S.C. Secs. 621-34 (1982) (ADEA). The district court held that Stillians was precluded from raising her discriminatory failure to promote and discriminatory discharge claims in federal court because: 1) the failure to promote claim could have been raised before the Iowa Merit Employment Commission (IMEC); and 2) the discharge claim was actually litigated before the IMEC. We affirm, although for somewhat different reasons.

I. BACKGROUND

Stillians was employed by the Iowa Arts Council (IAC) from 1972 through June 17 1985. Beginning in 1977 she held the title of Program Director, a position just below that of the Director. In October 1984 the Director resigned, and Stillians sought the positions of Acting Director and Director. By the then applicable statutes, the "director shall be nominated by the council and appointed by the governor subject to confirmation by the senate to serve at the pleasure of the governor for a term of four years * * * *" Iowa Code Sec. 304A.3 (1985) (since repealed). She was not selected for either position.

In March 1985 Jeanann Celli was appointed Director. On April 30, 1985, Stillians filed a charge of age discrimination, retaliation, and harassment with the Iowa Civil Rights Commission and the Equal Employment Opportunity Commission (EEOC) because the IAC failed to select her as Director. The Iowa Civil Rights Commission issued a right to sue letter on those charges.

On June 3, 1985, Stillians was notified that she was dismissed effective June 17, 1985. On June 24, 1985, Stillians alleged discriminatory discharge in filings with the Iowa Civil Rights Commission and the EEOC. On July 3, 1985, she also challenged her dismissal by filing an appeal with the IMEC pursuant to Iowa Code Sec. 19A.14 (1985). After a hearing, the hearing officer issued a proposed decision finding that Stillians' termination was proper. The proposed decision was adopted by the IMEC. Stillians did not seek review of that decision in the Iowa state courts. Instead she filed the present suit in the United States District Court for the Southern District of Iowa.

II. DISCUSSION

On appeal, Stillians argues that her failure to promote claim was not within the jurisdiction of the IMEC and thus could not have been litigated before that body. As to the discharge claim, Stillians argues that the ADEA is so similar to Title VII that we are bound by the Supreme Court's decision in University of Tenn. v. Elliott, 478 U.S. 788, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986) (Title VII suit not precluded by prior unreviewed state administrative decision).

A. Failure to Promote

Although Stillians argues, and we agree, that her failure to promote claim was not actually litigated, we nevertheless affirm the order of the district court because Stillians' failure to promote claim is not cognizable under the ADEA. We have no subject matter jurisdiction to hear this claim.

The ADEA defines employee as:

an individual employed by any employer except that the term "employee" shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer's personal staff, or an appointee on the policymaking level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency, or political subdivision.

29 U.S.C. Sec. 630(f). ²

Thus, the dispositive issues here are whether Stillians was seeking an appointment "on the policymaking level" and whether the appointment was subject to Iowa's civil service laws.

Whether the Director of the Iowa Arts Council is on a policymaking level depends on several factors. These include: 1) whether the Director has discretionary, rather than solely administrative powers, E.E.O.C. v. Bd. of Trustees of Wayne Cty. Com. Col., 723 F.2d 509, 511 (6th Cir.1983); 2) whether the Director serves at the pleasure of the appointing authority, E.E.O.C. v. Reno, 758 F.2d 581, 584 (11th Cir.1985); and 3) whether the Director formulates policy Whittlesey v. Union Carbide Corp., 742 F.2d 724, 727 (2d Cir.1984). Furthermore, we do not think that any position that is filled by gubernatorial appointment and is subject to confirmation by a sovereign state senate should be considered as routine employment.

Stillians' status under the ADEA is, of course, a question of federal law, but we must look to state law to determine the scope of authority given to the Director of the Arts Council. Reno, 758 F.2d at 584.

Under Iowa law, now repealed, the Director of the Iowa Arts Council was appointed by and served at the pleasure of the governor. Iowa Code Sec. 304A.3 (1985). Within the confines of his or her statutory duties, the Director was granted broad discretionary powers. For example, the Director had the authority to "[m]ake such surveys as may be deemed advisable of existing artistic and cultural programs and activities within the state," Sec. 304A.5(3); "[e]mploy such administrative, professional, and other personnel as may be necessary for the performance of his powers and duties and fix such personnel's compensation within the amounts made available for such purposes, Sec. 304A.6(1); "[m]ake and sign any agreements and perform any acts which may be necessary, desirable, or proper to carry out the purpose of this chapter, Sec. 304A.6(2); and "[a]ppoint such advisory committees as he deems advisable and necessary to the carrying out of his assigned powers and duties," Sec. 304A.6(4). Given these broad discretionary duties, we believe the position of the Director was undoubtedly on a policymaking level.

Although the Director was a policymaker, he or she nevertheless qualified as an "employee" if the position was "subject to the civil service laws of [the] State." Once again we must examine Iowa law--specifically Iowa Code Sec. 19A.1 et seq. (1985) dealing with the state merit system. Iowa Code Sec. 19A.3 provided that:

The merit system shall apply to all employees of the state and to all positions in the state government now existing or hereafter established except the following:

* * *

* * *

14. All appointments other than boards or commissions which are by law made by the governor or executive council * * * *

In her brief Stillians argues that the IMEC has no jurisdiction over the position of Director because the position was exempt under Sec. 19A.3 (14), quoted above. We agree. Consequently, because the Director was on a policymaking level and was exempt from Iowa civil service laws, the position was not protected by the ADEA. Further, common sense dictates that political positions such as this should not be subject to extensive federal regulation. State governors must be given broad discretion to fill policymaking positions without fear of being sued by disappointed office seekers. While the policy behind the ADEA certainly is laudatory, in certain instances it must give way to the realities of a governmental system in which officials elected by the people are granted authority to fill certain high level positions with people they feel are most qualified.

B. Discharge

It is undisputed that Stillians' claim of illegal discharge was actually litigated before the IMEC. After extensive hearings, the hearing officer found that Stillians was discharged for non-discriminatory reasons. This conclusion was adopted by the IMEC. Although appeal to the state district court was permitted under Iowa Code Sec. 19A.14 (1985), Stillians chose to pursue her claims anew in federal court.

The district court granted the state's motion for summary judgment, holding that the ADEA more closely resembles 42 U.S.C. Sec. 1983 than Title VII and therefore, the ADEA claim is barred by the principles of preclusion discussed in University of Tenn. v. Elliott, 478 U.S. 788, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986).

In Elliott, the plaintiff filed suit in federal court alleging that his proposed discharge was racially motivated and seeking relief under Title VII and 42 U.S.C. Sec. 1983. Prior to trial, a state administrative hearing was held and the proposed termination was found to be not racially motivated. Rather than appeal the administrative determination in the state court system, the plaintiff returned to federal court to pursue his claims. The district court granted the university's motion for summary judgment, holding that the administrative determination was entitled to preclusive effect. Following a decision by the Sixth Circuit Court of Appeals, the Supreme Court granted certiorari to determine whether unreviewed state administrative determinations preclude subsequent federal actions under Title VII and 42 U.S.C. Sec. 1983.

Initially, the Court noted that 28 U.S.C. Sec. 1738, which requires federal courts to give full faith and credit to judgments and records of state courts, does not apply to state administrative proceedings. Therefore, if state administrative determinations are to be given preclusive effect, it must be because of federal common law rules of preclusion.

The Court found that...