Tekippe v. State Of Iowa
| Decision Date | 07 March 2011 |
| Docket Number | No. 0-803 / 10-0464,0-803 / 10-0464 |
| Court | Iowa Court of Appeals |
| Parties | JOSEPH P. TEKIPPE, Plaintiff-Appellant, v. STATE OF IOWA, Defendant-Appellee. |
Appeal from the Iowa District Court for Allamakee County, John Bauercamper, Judge.
A former state employee appeals a summary judgment ruling in favor of the State on his wrongful discharge claims. REVERSED AND REMANDED.
Judith O'Donohoe of Elwood, O'Donohoe, Braun, White, L.L.P., Charles City, for appellant.
Thomas J. Miller, Attorney General, and Tyler M. Smith, Assistant Attorney General, for appellee State.
Considered by Sackett, C.J., and Vogel and Vaitheswaran, JJ. Tabor, J., takes no part.
Joseph Tekippe, a former employee of a state prison, appeals a summary judgment ruling in favor of the State on his wrongful discharge claims.
Tekippe worked as an officer at the Luster Heights work camp. One of his immediate supervisors was Major Harry Wood. Tekippe suspected that Wood was stealing cigarettes from the commissary. He conveyed his suspicions to union officials and others.
An employee of another prison facility was charged with investigating the theft allegation. He reported that the manner in which commissary inventory and receipts were maintained made it impossible to establish a theft. A state audit, conducted at the request of the director of the Department of Corrections, similarly found that "the current inventory balance cannot be calculated and the accuracy of the balance cannot be determined." The auditor recommended that Luster Heights employees "develop procedures to assist in monitoring commissary inventory balances by documenting all commissary purchases and deductions."
Major Wood left his employment at Luster Heights in early 2002. Tekippe left his employment at Luster Heights two years later claiming he was constructively discharged.
Tekippe sued the State, alleging he was wrongfully terminated in violation of public policy and in violation of Iowa's whistleblower statute. See Iowa Code § 70A.28(2) (2007). The State moved for summary judgment on both counts. The district court granted the motion after adopting the State's statement ofmaterial facts. The court concluded (1) "[t]he undisputed evidence fails to show any recognized public policy in the State of Iowa for which a violation may be shown" and (2) "the plaintiff did not communicate any protected information to a party covered by the whistleblower statute at any relevant time."
On appeal, Tekippe contends the district court erred in adopting the State's statement of material facts and in rejecting his claims as a matter of law. The State responds that we may affirm the district court based on the absence of a causal connection between the claimed theft disclosure and Tekippe's separation from his employment.
As a preliminary matter, Tekippe contends the district court's adoption of the State's statement of material facts contravenes the principles governing summary judgment. See generally Iowa Rs. Civ. P. 1.981(3) (), 1.981(8) ( "there shall be annexed to the motion a separate, short and concise statement of the material facts as to which the moving party contends there is no genuine issue to be tried"). Tekippe is correct that, in determining whether summary judgment is appropriate, the court is to look at the facts in a light most favorable to the nonmoving party. Phillips v. Covenant Clinic, 625 N.W.2d 714, 717 (Iowa 2001). "The court must also consider on behalf of the nonmoving party every legitimate inference that can be reasonably deduced from the record." Id. at 717-18.
These principles were not followed. However, reversal is not mandated if there exists no dispute of material fact that would preclude resolution of the issues as a matter of law. See Fees v. Mut. Fire & Auto Ins. Co., 490 N.W.2d 55, 57 (Iowa 1992) ().
As noted, Tekippe pled two counts.1 In the first, he alleged he was constructively discharged "because he reported that illegal activity of a co-worker whom administration did not want punished." He asserted his claimed constructive discharge was "in violation of the public policy of this State." In his second count, Tekippe alleged he "was discharged from his position as a public employee for disclosing information to other public officials or law enforcement agencies of the violation of the law or rule of a supervisor," in contravention of Iowa Code section 70A.28(5)(a).
With respect to the first count, Tekippe concedes that "[t]here is likely no factual dispute related to the issue of whether a public policy exists to protect reports of misuse or theft of State funds." See Lloyd v. Drake Univ., 686 N.W.2d 225, 229 (Iowa 2004) (); see also Fitzgerald v. Salsbury Chem., Inc., 613 N.W.2d 275, 282 (Iowa 2000) (same). Based on this concession, we conclude the district court's adoption of the State's statement of material facts does not required reversal of the first count. What remains to be decided with respect to Tekippe's first count is whether he articulated a publicpolicy exception to the at-will employment doctrine which would support his common law retaliatory discharge claim and whether, if he did, the State is nonetheless entitled to summary judgment based on an inability to prove causation. These issues will be addressed in separate sections.
We turn to the effect of adopting the State's statement of material facts on the second count. Tekippe asserts "there are material facts in dispute regarding the whistleblower claim with respect to whom reports were made, what actions, if any by the State were retaliatory, and who was responsible for the retaliation." We agree.
Iowa Code section 70A.28(2) identifies several individuals to whom an employee may report violations of the statute, including public officials and law enforcement agencies. Accordingly, a preliminary determination must be made as to who the employee notified of the claimed violation.
The State's statement of facts adopted by the district court noted the names of some people to whom Tekippe complained. Tekippe countered with an affidavit identifying additional individuals to whom he complained, including the acting director of the Department of Corrections and the County Sheriff. At a minimum, the director and sheriff, as a public official and law enforcement agent respectively, would be authorized reportees under the whistleblower statute. See Hegeman v. Kelch, 666 N.W.2d 531, 534 (Iowa 2003) (); see also Iowa Code § 801.4(11) (). For that reason, Tekippe generated a disputed issue of material fact as to whether he complainedto individuals covered by the statute. As this fact issue must be resolved to determine whether Tekippe can maintain a statutory whistleblower claim, summary judgment would be precluded unless we accept the State's argument that causation cannot be established as a matter of law.
Turning to the merits, we will begin with whether Tekippe articulated a clear public policy to support the common law retaliatory discharge claim raised in Count I of his petition. We will then proceed to the question of whether causation fails as a matter of law on both of the counts.
In Iowa, an employment relationship is generally presumed to be at-will. See Fitzgerald, 613 N.W.2d at 280. There are exceptions for discharges that violate public policy. Lloyd, 686 N.W.2d at 228. Tekippe contends this State recognizes a public policy protecting an employee from discharge where the employee reports a theft by another public employee.
Iowa courts have been careful to limit the public policy exception "to cases involving only a well-recognized and clear public policy." Fitzgerald, 613 N.W.2d at 282. Our highest court has primarily found such policies in statutes. Id. at 283.
While Tekippe cites a number of statutes, the most pertinent is the whistleblower law on which he predicates his second count. Notably, the Iowa Supreme Court cited a prior version of this statute as an example of a law that "articulate[d] public policy by specifically prohibiting employers from discharging employees for engaging in certain conduct or other circumstances." Id. at 283 &n.3. Although this language is dicta, it signals a view that, at least the older version of the whistleblower statute enunciated a clear public policy.
The current version of the statute states in pertinent part:
A person shall not discharge an employee from or take or fail to take action regarding an employee's appointment or proposed appointment to, promotion or proposed promotion to, or any advantage in, a position in a state employment system administered by, or subject to approval of, a state agency as a reprisal for a failure by that employee to inform the person that the employee made a disclosure of information permitted by this section, or for a disclosure of any information by that employee to a member or employee of the general assembly, a disclosure of information to the office of citizens' aide, or a disclosure of information to any other public official or law enforcement agency if the employee reasonably...
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