Toppert v. Nw. Mech., Inc.

• Decision Date: 13 August 2013
• Docket Number: No. 3:12–cv–09–RAW.,3:12–cv–09–RAW.
• Citation: 968 F.Supp.2d 1001
• Parties: Alissa R. TOPPERT, Plaintiff, v. NORTHWEST MECHANICAL, INC. and Joe Schadt, Defendants.
• Court: U.S. District Court — Southern District of Iowa

968 F.Supp.2d 1001

Alissa R. TOPPERT, Plaintiff,

v.NORTHWEST MECHANICAL, INC. and Joe Schadt, Defendants.

No. 3:12–cv–09–RAW.

United States District Court,

S.D. Iowa,

Davenport Division.

Aug. 13, 2013.

William P. Rector, Jeffrey David Jacobs, Bozeman Neighbor Patton & Noe, Moline, IL, for Plaintiff.

Diane M. Reinsch, Abbey Chun Furlong, Lane & Waterman LLP, Davenport, IA, for Northwest Mechanical, Inc.

RULING ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

ROSS A. WALTERS, United States Magistrate Judge.

TABLE OF CONTENTS

I.

JURISDICTIONAL ISSUES

A.

Iowa Civil Rights Act

1.

Arguments

2.

Law & Analysis

B.

Davenport Civil Rights Act

1.

Arguments & Background

2.

Law & Analysis

II.

MERITS OF TITLE VII CLAIMS

A.

Facts

B. Summary Judgment Standard

C. Sexual Harassment

D. Discriminatory Discharge

1.

Indirect Evidence Standard

2.

Reason No.1: Violating Privacy Laws

a.

Changed reason

b.

Honest belief and good faith investigation

i.

Law

ii.

Application

c.

Similarly situated male employee

3.

Reason No. 2: Poor Performance

E.

Retaliation

III.

CONCLUSION

Defendants' Motion for Summary Judgment [15] is before the Court following oral argument. This is an employment discrimination case asserting claims under the Iowa Civil Rights Act, the Davenport Civil Rights Ordinance, and Title VII of the 1964 Civil Rights Act.

I.JURISDICTIONAL ISSUES

After being terminated by Defendant Northwest Mechanical, Inc. (“NWMI”), ¹ Plaintiff filed a complaint with the Davenport Civil Rights Commission (“DCRC”), which cross-filed with the Equal Employment Opportunity Commission(“EEOC”), and then Plaintiff filed a complaint with the Iowa Civil Rights Commission (“ICRC”). An ICRC Administrative Law Judge (“ALJ”) responded to the complaint submission by returning the submitted materials and sending Plaintiff a letter, which included the following excerpt:

Recently the Davenport Civil Rights Commission obtained a contract with the federal government, the Equal Employment Opportunities Commission. Because they have a contract with the federal government, the Davenport Commission is not required to cross-file the charges of discrimination they receive with the state of Iowa's civil rights Agency. This is a change in how the Davenport and State Commissions coordinated enforcement activities, which you may not have been aware of the change in procedures. Since the charge is being investigated by the Davenport Commission, any investigation by the State Commission would be duplicative. Therefore, I am returning the materials you submitted to the State Commission.

If you have any questions, you may certainly call me directly.

(Pl.'s App. 13, Letter from Cowdrey to Rector [20–4] ). From this letter, it is apparent that the ICRC did not keep the complaint materials, and it was not going to investigate the case. However, the parties do not agree on the meaning of the ALJ's letter and how Plaintiff should have proceeded. The parties have not submitted any other materials regarding Plaintiff's complaint that the ICRC sent to either party or the DCRC.

DCRC proceeded to investigate the complaint and concluded there was probable cause for discrimination. At that point, Plaintiff and Defendants engaged in DCRC-sponsored conciliation. After the conciliation failed and the DCRC did not set the case for public hearing, Plaintiff requested right to sue letters ² from the DCRC, the ICRC, and the EEOC. Plaintiff received a “Notice of Decision–Notice of Right to Sue” from the DCRC and a “Notice of Right to Sue” from the EEOC. (Am. Compl. Exs. A, B [7–1] [7–2] ). It is undisputed that Plaintiff did not obtain a right to sue letter from the ICRC. ( Compare Pl.'s Supp. App. 1, Supp. Aff. of William P. Rector [25–1] with Defs.' Br. in Support of Summ. J. 8 [7] ).

The lack of right to sue letter from the ICRC raises questions regarding whether Plaintiff's Iowa Civil Rights Act (“ICRA”) and Davenport Civil Rights Ordinance claims may proceed.

A. Iowa Civil Rights Act

Defendants argue that Plaintiff's Iowa Civil Rights Act claims, Counts IV, V, and VI, fail as a matter of law. In its most basic form, the ICRA requires that before initiating a lawsuit, a plaintiff must 1) file a complaint with the ICRC, 2) then request a right to sue letter from the ICRC, and 3) finally, file suit no later than ninety days after the ICRC issued the right to sue letter. Iowa Code § 216.16. Defendants argue that the Court does not have subject matter jurisdiction over the claim because Plaintiff failed to exhaust her administrative remedies when she did not obtain a right to sue letter from the ICRC.³ The issue is whether the statutory requirement to obtain a right to sue letter from the ICRC was satisfied by obtaining a right to sue letter from the DCRC or the EEOC.

1. Arguments

Plaintiff argues that her right to sue letters from the EEOC and the DCRC satisfy the statutory requirement to obtain a right to sue letter from the ICRC. Plaintiff bases this argument in part on the ALJ's letter. Plaintiff interprets the letter to mean that the ICRC was deferring the case to the DCRC for investigation and resolution, including issuance of the right to sue letter. With that understanding, Plaintiff thought she would exhaust her administrative remedies with the ICRC by exhausting her administrative remedies with the DCRC. Plaintiff states that there was a contract for deferral, but, assuming she is referring to a contract between ICRC and DCRC, evidence of that contract is not in the motion papers.

In contrast, Defendants understand the letter to mean only that investigation would be conducted by the DCRC with the ICRC retaining the responsibility for issuing a right to sue letter. Defendants point out the ALJ only indicated that the ICRC would not investigate; she did not say that the ICRC would not issue a right to sue letter. Defendant argues that the Court should not read into the situation a contract for resolution and issuance of a right to sue letter where the Court has no evidence that a deferral contract had been granted because the administrative rules make clear such a contract must be established in order to receive “referral” or “deferral” agency status.

2. Law & Analysis

Plaintiff is correct in stating that Iowa Code §§ 216.5 and 216.19 make clear that a plaintiff's rights should not be affected by filing with a referral agency and a complaint may be referred for investigation. However, Plaintiff's application of the law is flawed.

Plaintiff asserts that the DCRC is a deferral agency. According to the Iowa Administrative Rules, in order to become a deferral agency, the ICRC must grant the local commission a deferral contract. The Iowa Administrative Rules detail the process of obtaining a contract and make clear that applications for contracts may be denied. Iowa Administrative Code Rule 161–1.6(4). Yet, Plaintiff has not provided proof that DCRC had such a contract with ICRC at that time. Additionally, assuming there was a deferral contract, Plaintiff has not addressed the possibility that the ICRC did not delegate the issuance of the right to sue letter. This is important because Iowa Administrative Code Rule 161–1.6(4)(e)(9), which is referring to a deferral agency, states that “[t]he commission will not necessarily be bound by the agency's conclusions of law.” Where there is no proof that the DCRC has a deferral contract, the Court cannot find that the DCRC has the right to bind the ICRC. Doing so would confer greater rights to a local commission without a contract than a local commission with a contract. It is not logical to find that a commission that has gone through a more rigorous review and obtained a contract, but still does not have the ability to bind ICRC with their findings, has less authority than those commissions that were unsuccessful in obtaining a contract.

In Gray v. Kinseth Corp., the Iowa Supreme Court cautioned against reading a delegation of rights and responsibilities from the ICRC to a local agency, where the ICRC had not explicitly authorized it. See636 N.W.2d 100, 103 (Iowa 2001). In Gray, the local commission sent a letter to the ICRC saying that it was cross-filing a claim with the ICRC but that the local commission would handle the investigation. Id. at 101. In response, the ICRC sent back a pre-printed form. Id. There were several boxes that could be marked, each indicating how the ICRC was processing the case. Id. The ICRC marked a box indicating that it docketed the case and will “await results of your processing.” Id. The ICRC did not mark the box indicating that the state commission was referring or deferring the contract pursuant to a referral or deferral contract. Id. An issue arose because the local commission issued a right to sue letter before the ICRC issued a right to sue letter. Each right to sue letter started a ninety-day clock by which the plaintiff had to file suit in order to preserve his legal rights. The plaintiff's suit was untimely according to the period set by the local commission's right to sue letter but timely according to the period set by the ICRC letter. Id. at 101–02. The defendant argued that the plaintiff could not proceed on his ICRA claims because the clock started by the local commission's right to sue letter was binding on those claims. The Iowa Supreme Court held that the ICRC right to sue letter controlled the ICRA claims because there was not a referral or deferral contract between the parties authorizing the local commission to bind the ICRC. Id. at 103.

Similarly, the Eighth Circuit Court of Appeals has considered whether an EEOC right to sue letter may satisfy a state's statutory requirement to obtain a right to sue letter from the state agency. In Whitmore v. O'Connor Mgmt., Inc., the Eighth Circuit considered Plaintiff's argument that she did not need to obtain a right to sue letter from the Missouri Human Rights Commission to proceed on her state law claims because she had received a right to sue letter from the EEOC and the...