Zwanziger v. O'Brien, 11–1548.

Citation822 N.W.2d 745
Decision Date03 October 2012
Docket NumberNo. 11–1548.,11–1548.
PartiesPatricia J. ZWANZIGER, Plaintiff–Appellant, v. Jennifer O'BRIEN, Floyd County Public Health/Home Health Care Agency and Floyd County, Defendants–Appellees.
CourtCourt of Appeals of Iowa

822 N.W.2d 745

Patricia J. ZWANZIGER, Plaintiff–Appellant,
v.
Jennifer O'BRIEN, Floyd County Public Health/Home Health Care Agency and Floyd County, Defendants–Appellees.

No. 11–1548.

Court of Appeals of Iowa.

Oct. 3, 2012.



Appeal from the Iowa District Court for Butler County, Stephen P. Carroll, Judge.

Patricia Zwanziger appeals from the district court's dismissal of her retaliatory discharge claim under Iowa Code section 70A.29 (2007).
AFFIRMED.
Gary J. Boveia of Boveia Law Firm, Waverly, for appellant.

Beth E. Hansen of Swisher & Cohrt, P.L.C., Waterloo, for appellees.


Heard by VOGEL, P.J., and DANILSON and MULLINS, JJ.

DANILSON, J.

Patricia Zwanziger appeals from the district court's dismissal of her Iowa Code section 70A.29 (2007)1 claim, which she asserts arose from her disclosure of agency mismanagement. Zwanziger contends the district court erred in striking her jury demand, and in determining the statute did not allow for recovery of damages for pain and suffering or for emotional distress allegedly caused by the discharge. Because section 70A.29 contemplates only equitable relief, to be determined by the court, we affirm the rulings of the district court.

I. Background Facts and Proceedings.

Patricia Zwanziger was the interim administrator of the Floyd County Public Health/Home Health Care Agency until February 18, 2008, and then moved to a position as a part-time staff registered nurse. Jennifer O'Brien began her duties as the administrator of the Floyd County Public Health/Home Health Care Agency on February 18, 2008.

On June 2, 2008, Zwanziger filed a petition against Jennifer O'Brien, the Floyd County Public Health/Home Health Care Agency, and Floyd County (hereinafter collectively referred to as O'Brien), alleging Jennifer O'Brien was the administrator of the agency and “was planning on changing” one of the Medicare programs, and it was Zwanziger's belief that the “proposed actions ... would be mismanagement of the agency.” Acting on this belief, Zwanziger contacted J. Patrick McDonnell, the chair of the Floyd County Board of Health, to voice “her concerns.” Zwanziger alleged that O'Brien thereafter “authored a notice of termination based in part on Plaintiff's said contact” with the chair, which Zwanziger alleged was “an act of reprisal in violation of Iowa Code section 70A.29.”

Both parties filed written demands for a jury trial. Subsequently, O'Brien filed a motion seeking to strike both demands and for the matter to be submitted to the court.2 The district court initially ruled Zwanziger was entitled to a jury trial. However, following O'Brien's renewed motion to strike the jury demand, and relying on court interpretations of other whistleblower statutes, the district court concluded the relief granted by section 70A.29 was equitable in nature and would be tried to the court sitting in equity.

Following a six-day trial,3 the district court found Zwanziger had failed to establish a predicate for a reasonable belief that mismanagement was occurring, or that her disclosure to McDonnell was the determining factor in her termination.4 Because Zwanziger failed to establish a prima facie case of termination in reprisal of protected activity, the court dismissed the claims against defendants.

Zwanziger now appeals.

II. Scope and Standard of Review.5

This case turns on our interpretation of Iowa Code section 70A.29. Because interpretation of a statute is a question of law, our review is for correction of errors at law. See L.R. Noll Inc. v. Eviglo, 816 N.W.2d 391, 393 (Iowa 2012).

III. Discussion.

Zwanziger does not challenge the trial court's factual findings, only its determinations that she was not entitled to a jury trial, or to seek damages for pain and suffering and emotional distress. We confine our discussion to those issues. See Richter v. Shelby Cnty., 745 N.W.2d 505, 511 (Iowa 2008).

A. Jury trial. We begin with the statutory language of the claim invoked by Zwanziger's petition. Iowa Code section 70A.29(1) provides:

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 employment by a political subdivision of this state as a reprisal for a disclosure of any information by that employee to a member or employee of the general assembly, or an official of that political subdivision or a state official or for a disclosure of information to any other public official or law enforcement agency if the employee reasonably believes the information evidences a violation of law or rule, mismanagement, a gross abuse of funds, an abuse of authority, or a substantial and specific danger to public health or safety. This section does not apply if the disclosure of the information is prohibited by statute.

Subsection 3 then states, “Subsection 1 may be enforced through a civil action.” Iowa Code § 70A.29(3). It continues, “A person who violates subsection 1 is liable to an aggrieved employee for affirmative relief including reinstatement, with or without back pay, or any other equitable relief the court deems appropriate, including attorney fees and costs.” Id. § 70A.29(3)(a).6 No Iowa appellate court has ruled upon the issue of whether such an action includes the right to a jury trial.

Zwanziger's claim of right to a jury trial raises numerous grounds, but she does not—because she cannot—rely upon an explicit statutory statement of a right to jury trial. Cf., Age Discrimination in Employment Act, 29 U.S.C. § 626(c)(2) (“In an action brought under paragraph (1), a person shall be entitled to a trial by jury of any issue of fact in any such action for recovery of amounts owing as a result of a violation of this chapter, regardless of whether equitable relief is sought by any party in such action.” (emphasis added)).

Zwanziger contends she is entitled to a jury trial under Article 1, section 9 of the Iowa Constitution, which provides that “the right of trial by jury shall remain inviolate.”

Zwanziger argues that a common law claim for wrongful discharge has long-existed in Iowa, citing Park v. Independent School District No. 1, 65 Iowa 209, 21 N.W. 567 (Iowa 1884). We must point out, however, that the claim in Park was grounded upon a teacher's statutory right to appeal an allegedly wrongful discharge. See Park, 21 N.W. at 568–69. And that statutory right is grounded upon contract. See Kirkpatrick v. Indep. Sch. Dist. of Liberty, 53 Iowa 585, 5 N.W. 750, 751 (Iowa 1880) (noting that question certified was “whether, in case of board of school directors discharge a teacher upon the ground of incompetency, without complying with section 1734 of the code, he can at once maintain an action for damages as for breach of contract (emphasis added)). The tort of wrongful discharge is not so long-recognized, developing as a public-policy exception to an employer's right to discharge an at-will employee. See generally Springer v. Weeks & Leo Co., Inc., 475 N.W.2d 630, 632–33 (Iowa 1991) (listing “in chronological order” the cases developing and refining the tort of retaliatory or wrongful discharge—beginning with Davenport v. City of Des Moines, 430 N.W.2d 405, 407 (Iowa 1988)).

“A right to a jury trial, if it arises only by virtue of statute, is not fundamental.” State ex rel. Bishop v. Travis, 306 N.W.2d 733, 734 (Iowa 1981). We note, “there is no right to a jury trial generally in cases brought in equity. Generally, if the cause of action is equitable in character, even in part, and equity jurisdiction once attaches, full and complete adjustment of the rights of all parties will be properly made in the suit.” Weltzin v. Nail, 618 N.W.2d 293, 296 (Iowa 2000) (internal quotation marks and citations omitted).

We look then to the language of section 70A.29 to determine whether it provides for a cause of action that is “equitable in character.” See id. Under that statutory provision, a person who discharges a county employee “as a reprisal” for a protected disclosure, “is liable to an aggrieved employee for affirmative relief including reinstatement, with or without back pay, or any other equitable relief the court deems appropriate, including attorney fees and costs.” Iowa Code § 70A.29(1), (3)(a) (emphasis added). The phrase “any other equitable relief” necessarily implies that the “affirmative relief” authorized is equitable relief. See Fjords N., Inc. v. Hahn, 710 N.W.2d 731, 737 (Iowa 2006) (“Under the lastantecedent rule, ‘[r]eferential and qualifying words and phrases, where no contrary intent appears, refer solely to the last antecedent.’ “ (quoting 2A Norman J. Singer, Statutes and Statutory Construction § 47:33, at 369 (6th ed.2000)).

We note, too, that the relief provided for under section 70A.29 differs from the relief authorized in the Iowa Civil Rights Act (ICRA), which provides for “[p]ayment to the complainant of damages for an injury caused by the discriminatory or unfair practice which damages shall include but are not limited to actual damages, court costs and reasonable attorney fees.” Iowa Code § 216.15(a)(8). Clearly, if the legislature intended to permit “actual damages” in an action under section 70A.29, it could have so stated, as it did in section 216.15(a)(8).

Whether a litigant is entitled to a jury trial under the ICRA has been the subject of much debate. In Smith v. ADM Feed Corp., 456 N.W.2d 378 (Iowa 1990), in a five-to-four decision, the court ruled there was no right to jury trial. But, Smith was overruled in McElroy v. State, 703 N.W.2d 385, 393–95 (Iowa 2005), where the court explained:

In Smith, a sharply divided court held there was no right to a jury trial under the ICRA....

In its statutory analysis, the majority in Smith concluded the district court in an ICRA action “sits as the [Iowa Civil Rights Commission] and is empowered only to grant that relief authorized” by the ICRA. 456 N.W.2d at 381...

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