Opinion
No. 5-141 / 04-0677
Filed August 17, 2005
Appeal from the Iowa District Court for Howard County, John Bauercamper, Judge.
Julie Boyle appeals adverse verdicts in her sexual discrimination and retaliatory discharge claims. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Karl G. Knudson of Knudson Law Office, Decorah, and Mark B. Anderson, Cresco, and James P. Moriarty of Moriarity Law Offices, P.C., Cresco, for appellant.
Donald H. Gloe of Miller, Pearson, Gloe, Burns, Beatty, Cowie Shidler, P.L.C., Decorah, for appellee.
Heard by Vogel, P.J., and Miller and Hecht, JJ.
Julie Boyle appeals the adverse verdicts in her sexual discrimination and retaliatory discharge claims brought under both the federal and state civil rights acts. Boyle contends the district court erred in (1) instructing the jury on the effect her "at will" employment had on defendant Alum-Line, Inc.'s (Alum-Line) ability to terminate her employment, (2) denying her Iowa Civil Rights Act (ICRA) claim for retaliatory discharge without making any factual findings, and (3) denying her ICRA claim for sexual harassment in the work place without determining and applying the proper standard of proof. We affirm in part, reverse in part, and remand for further proceedings.
I. Background Facts and Proceedings
Boyle was hired by Alum-Line to work as a welder and became the first female employee to work in Alum-Line's "plant-two." Boyle's foreman was Wayne Hansmeier, who was supervised by the manager of plant two, Chris Orr, who, in turn, was supervised by Gary Gooder, the president of Alum-Line. Boyle alleged that while working at plant two, her co-workers exposed her to pornographic pictures, lewd and demeaning sexual comments, and even subjected her to unwanted physical contact. Boyle further asserted that not only did Hansmeier approve of the inappropriate behavior of her co-workers by laughing at it, but that he had actually participated by addressing her in a lewd and demeaning manner.
Boyle claims she eventually went to Gooder's office to complain and was told to see Orr. When Boyle approached Orr, she was told the situation was under investigation. Approximately one week later Boyle met with Orr and Gooder and was handed a written notice terminating her employment. The notice, which was signed by both Hansmeier and Orr, stated the reason for Boyle's termination was complaints by her co-employees indicating they were uncomfortable working with her because she was sexually harassing them.
Boyle filed a petition seeking damages under both the federal and state civil rights act for sexual discrimination through a hostile work environment and retaliatory discharge. The federal claims were tried to a jury while the state claims were simultaneously tried to the district court. At the conclusion of the trial, Boyle's trial counsel failed to object to the district court's decision not to instruct the jury on her retaliatory discharge claim and therefore the jury never reached the issue. While the jury was deliberating on the Title VII case, the district court gave Boyle an opportunity to present "any matters related to the plaintiff's claim against the defendant that were not submitted to the jury that are required by Iowa law to be decided by the Trial Court without a jury. . . ." Boyle, however, did not present any further argument or raise the retaliatory discharge issue, even when given the opportunity to do so after Alum-Line expressed its view that the issue had not been raised.
The jury was given special interrogatories in which they found: (1) Boyle was subjected to sexual harassment by offensive sexual language and conduct, (2) the conduct was based on gender, (3) the conduct was directed at her and was unwelcome and uninvited, (4) the conduct was sufficiently severe or pervasive so that a reasonable person would find Boyle's work environment to be hostile, (5) Alum-Line knew of the sexual harassment, but that (6) Boyle did not prove Alum-Line failed to take steps reasonably calculated to stop the sexual harassment. The district court's findings for the ICRA sexual harassment through a hostile work environment claim mirrored the jury interrogatories. With regard to Boyle's ICRA retaliatory discharge claim the district court found:
The court makes no findings as to whether the plaintiff sexually harassed her male co-workers or whether her discharge was in retaliation for her own complaint of sexual harassment, because the court does not believe that it needs to resolve these fact questions to decide this part of the case
The district court then concluded, "[t]here is no claim or cause of action for damages under Iowa law for retaliatory discharge in this context."
Boyle filed several post-trial motions including a motion pursuant to Iowa Rule of Civil Procedure 1.904 requesting, among other things, that the court amend its findings of fact to include findings, "that the Defendant discharged the Plaintiff in retaliation for lodging her last complaint of sexual harassment," and that "Wayne Hansmeier . . . was the Plaintiff's immediate supervisor." In its order on Boyle's post-trial motions the district court found that the "evidence did not establish that Wayne Hansmeier was a supervisor as defined by federal law, because it was not shown that he had substantial control over the plaintiff's employment," and that with regard to the claim brought under the state civil rights act, "[t]he Court's findings of fact are supported by substantial evidence in the record and are consistent with the jury's factual findings." Boyle appeals.
II. Scope of Review
Boyle's claim under Title VII of the Civil Rights Act of 1964 was tried to a jury. Boyle challenges Jury Instruction No. 17 as an incorrect statement of the law. Boyle's discrimination claim brought pursuant to the Iowa Civil Rights Act, Iowa Code Chapter 216 (2003), was tried to the district court. We review both claims for errors at law. See Cato v. American Suzuki Motor Corp., 622 N.W.2d 486, 492 (Iowa 2001) (stating alleged errors in jury instructions are reviewed for errors at law); Falczynski v. Amoco Oil Co., 533 N.W.2d 226, 230 (Iowa 1995) ("Our review of discrimination claims tried to the court is at law.").
III. Issues A. Title VII Claim
The district court gave Jury Instruction No. 17 to the jury, which reads:
The plaintiff was an employee at will with the defendant. This means that the employer had the right to terminate the plaintiff's employment at any time, for any reason, with or without just cause. Therefore, you need not decide whether the employer had just cause for terminating her employment. The mere fact that her employment was terminated does not establish her claim for damages.
Boyle argues this instruction is legally incorrect because it does not provide any exception to the proposition that an employee at will may be terminated for any reason.
Boyle testified to numerous incidents of ongoing workplace sexual harassment and her reporting of certain incidents to Alum-Line's plant manager and president. Her testimony was in part corroborated by another former Alum-Line employee, Debra Turner. Alum-Line and all witnesses testifying on its behalf who spoke to such issues denied that any such incidents had been reported, or had otherwise come to their knowledge, with the exception of one incident in which foreman Hansmeier had told Boyle to "look at the f-ing plans" and had been reprimanded by plant manager Orr when Boyle reported the incident. Accordingly, Alum-Line had taken no other steps to stop any purported sexual harassment.
In answering special interrogatories #1 through #5 the jury found that Boyle had been subjected to sexual harassment by offensive sexual language and conduct, the conduct was based on her gender, the conduct was directed at her and was unwelcomed and uninvited, the conduct was of a severe and pervasive nature, and Alum-Line knew of the sexual harassment. However, in answering special interrogatory #6 the jury found that Boyle had not proved Alum-Line failed to take steps reasonably calculated to stop the sexual harassment. Yet, Alum-Line had taken no steps to stop this severe and pervasive sexual harassment as it alleged it had no reports or knowledge of any sexual harassment (other than the one minor incident mentioned above). Thus, the question for this court is what caused the jury to find the evidence did not prove this final element. As urged by Boyle, the answer may well lie in an error present in Jury Instruction No. 17.
Jury Instruction No. 17 is legally incorrect because it does not provide for the exception that the employment of an at-will employee may not be terminated for a reason that violates public policy, such as in this case for reporting workplace sexual harassment. As urged by Boyle, Jury Instruction No. 17 could easily have led the jury to conclude, when deliberating special interrogatory #6, that Alum-Line's termination of Boyle's employment was a step reasonably calculated to stop the sexual harassment found by the jury. It could have so concluded because the instruction told it that the reason for the termination was of no significance.
Boyle's objection to the instruction on the ground it misstated the law because it did not include the idea that any termination from employment can occur only for a "lawful" reason and not for an "unlawful" reason was sufficient to alert the district court and therefore to preserve error.
The court's instructions to the jury "must convey the applicable law in such a way that the jury has a clear understanding of the issues it must decide." Thompson v. City of Des Moines, 564 N.W.2d 839, 846 (Iowa 1997). Jury Instruction No. 17, although derived from an accurate statement of the law was, in the context of the issues and factual disputes in this case, incomplete and thus misleading and confusing. In cases where an instruction is confusing or conflicting reversal is generally required. McElroy v. State, 637 N.W.2d 488, 500 (Iowa 2001); Anderson v. Webster City Cmty. Sch. Dist., 620 N.W.2d 263, 268 (Iowa 2000).
While we cannot be certain Boyle was prejudiced by erroneous Instruction No. 17, because the retaliatory discharge claim was not submitted to the jury, we consider the strong possibility the instruction misled or confused the jury, to Boyle's prejudice on the remaining claim, sexual discrimination through a hostile work environment. The jury's answer to special interrogatory #6, when viewed in the light of its answers to the first five special interrogatories finding severe and pervasive sexual harassment and the unrefuted and unchallenged evidence that Alum-Line had taken no remedial steps other than on one occasion reprimanding Hansmeier for one incident of vulgarity, strongly suggests that the jury may have viewed Jury Instruction No. 17 as authorizing it to find Alum-Line had taken appropriate action by firing Boyle, thereby eliminating the problem. Because Jury Instruction No. 17 states a person can be terminated for any reason, the jury could quite reasonably have so viewed Boyle's termination as Alum-Line, "taking steps reasonably calculated to stop the sexual harassment." Under such circumstances reversal is in order on Boyle's sexual discrimination through a hostile work environment claim. See McElroy, 637 N.W.2d at 500 (holding reversal required where "it would be reasonable for the jury to "improperly interpret and apply a jury instruction).
B. ICRA Claim 1. Retaliatory Discharge
Boyle contends the district court erred in denying her ICRA claim for retaliatory discharge without making any factual findings regarding the claim. Boyle suggests that the district court refused to make these findings in order to conform its findings to those of the Title VII jury, which was not instructed on the retaliatory discharge claim. We disagree.
The district court, after deciding what jury instructions to submit to the jury stated the following:
I want to say one more thing on the record. The court anticipates there will be quite a bit of free time while the jury is deliberating, hopefully, tomorrow afternoon. And to the extent there are any matters related to the plaintiff's claim against the defendant that were not submitted to the jury that are required by Iowa law to be decided by the Trial Court without a jury, those matters will be submitted in the afternoon.
. . . .
. . . I want to afford counsel a full opportunity to make that presentation so it can be submitted and promptly decided by the Court.
. . . .
So I want to make sure that you are mentally prepared to do that. . . . [Y]ou have tonight to think it over.
The following afternoon the court did allow Boyle the opportunity to present evidence and make arguments regarding her retaliatory discharge claim as indicated by the following statements:
The court is making an opportunity available now to present whatever trial may be necessary and argument that may be necessary to submit the nonjury issues under state law to the court for decision incorporating by reference the evidence presented to the jury and supplementing the record with whatever other documents or argument or anything else that counsel believe is necessary.
Following this statement by the district court, Boyle's trial attorneys indicated that Boyle did not wish to present any additional evidence or make any additional arguments, stating that it was their belief that the evidence and arguments presented to the jury were sufficient. Boyle's attorneys did not address Boyle's retaliatory discharge claim even though they clearly considered this colloquy with the court to be an opportunity to request that the court rule on issues not presented to the jury as they asked, "that the court consider punitive damages in this issue, and that is done strictly for the basis of preserving the issue for appeal."
Following Boyle's statements, the district court gave Alum-Line an opportunity to present evidence or make argument. Alum-Line indicated that it did not wish to present any evidence, but it did make the following argument:
[T]he only issue to be tried under Iowa law contains the same elements to prove hostile environment, sexual harassment, and that's the only issue that has been raised by the — by the evidence. No other issue has been raised by the evidence. There isn't sufficient evidence to support any other type. There's no retaliatory discharge issue raised. (Emphasis added).
Boyle was given an opportunity to respond to this argument, but declined.
Thus, while Boyle pled a claim under both Title VII and the ICRA for retaliatory discharge, the jury in the Title VII case was not instructed on this claim, and when given the opportunity to present claims to the district court in the ICRA case that were not presented to the jury in the Title VII case, Boyle again did not submit this claim. Consequently, because Boyle's ICRA retaliatory discharge claim was never properly submitted, the district court, in its findings of fact, stated that it did not need to make any findings of fact as to whether Boyle's discharge was in retaliation for her own complaint of sexual harassment because "the court does not believe that it needs to resolve these fact questions to decide this part of the case." The court then concluded, "There is no claim or cause of action for damages under Iowa law for retaliatory discharge in this context."
Boyle did submit proposed jury instructions on her retaliatory discharge claim. However, an instruction on this claim was not included in the district court's instructions to the jury, and Boyle did not object to the fact the jury was not instructed on this claim. Boyle, in her appeal brief, candidly states that the jury in the Title VII case was not instructed on the elements of a retaliatory discharge claim and that she "does not claim to have preserved error on this part of the Title VII case."
Boyle attempted to submit her retaliatory discharge claim to the district court by filing a motion to enlarge, amend, or modify pursuant to Iowa Rule of Civil Procedure 1.904(2). Our supreme court has repeatedly stated that a rule 1.904(2) motion is applied to situations "when the district court fails to resolve an issue, claim, or other legal theory properly submitted for adjudication." Meier v. Senecaut III, 641 N.W.2d 532, 539 (Iowa 2002) (emphasis added). Stated another way, rule 1.904(2) is meant to aid a party seeking to appeal " an issue presented to, but not considered by, the district court to call to the attention of the district court its failure to decide the issue." Id. (emphasis added); Estate of Grossman v. McCreary, 373 N.W.2d 113, 114 (Iowa 1985) (holding that a rule 179(b) (now rule 1.904(2)) motion is a condition precedent for preserving issues submitted to but "skipped" by the district court.). Thus, rule 1.904(2) does not resurrect claims or issues not presented to the district court. Therefore, Boyle did not have her ICRA claim submitted to the district court by filing her rule 1.904(2) motion. Consequently, we affirm the district court's conclusion regarding Boyle's waiver of her ICRA retaliation claim.
1. Sexual Harassment Through a Hostile Workplace
When a non-supervisory employee commits harassment, one of the elements of a hostile work environment claim is that the employer "knew or should have known of the harassment and failed to take proper remedial action." Farmland Foods v. Dubuque Human Rights Comm., 672 N.W.2d 733, 744 (Iowa 2003). However, when a supervisor perpetrates the harassment, but no tangible employment action occurred, the plaintiff's burden is lower as it is the employer who must demonstrate, as an affirmative defense, that (1) it exercised reasonable care to prevent and correct promptly any harassing behavior, and (2) the plaintiff employee unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Id.; see also Faragher v. City of Boca Raton, 524 U.S. 775, 808, 118 S. Ct. 2275, 2293, 141 L. Ed. 2d 662, 689 (1998); Burlington Indus. Inc. v. Ellerth, 524 U.S. 742, 765, 118 S. Ct. 2257, 2270, 141 L. Ed. 2d 633, 655 (1998). Boyle contends that because her foreman, Hansmeier, was one of her harassers she should not have been required to demonstrate that Alum-Line knew or should have known of the harassment and failed take remedial action.
Necessary to Boyle's proposition is a finding that Hansmeier is a supervisor. The district court determined the opposite:
The evidence did not establish that Wayne Hansmeirer was a supervisor as defined by federal law, because it was not shown that he had substantial control over the plaintiff's employment. . . . The evidence also showed that Hansmeier was reprimanded by the plant manager, who was the supervisor.
We recognize that the district court postured its finding as applying to Boyle's Title VII claim and not her ICRA claim. We, however, conclude this finding is mislabeled. The language used by the district court clearly demonstrates that it made the finding, and because the jury was the only factfinder in the Title VII case, this finding must apply to the ICRA claim.
Boyle contends this finding is erroneous because Hansmeier's signing of Boyle's discharge notice defined him as her supervisor as a matter of law under the criteria set forth in Weyers v. Lear Operations Corp., 359 F.3d 1049, 1057 (8th Cir. 2004). In Weyers the United States Court of Appeals for the Eighth Circuit noted that in order to be considered a supervisor an "alleged harasser must have had the power (not necessarily exercised) to take tangible employment action against the victim, such as the authority to hire, fire, promote, or reassign to significantly different duties." Id. The Court then determined that a "team leader" who had harassed the plaintiff was not a supervisor even though he had the authority to assign employees to particular tasks and had signed at least three performance evaluations that were relied upon in the decision to terminate the plaintiff. Weyers, 359 F.3d at 1057. This conclusion was largely based on the Court's finding that the harasser, "himself, did not have the authority to take tangible employment action" against the plaintiff. Id. In Boyle's case, no evidence exists demonstrating that Hansmeier had the authority, by himself, to fire Boyle. In fact, the evidence is to the contrary as Orr's signature was required on the termination notice. Consequently, we conclude Weyers does not support Boyle's argument that Hansmeier was a supervisor as a matter of law.
Because the district court found Hansmeier was not a supervisor, it did not err in requiring that Boyle demonstrate Alum-Line knew or should have known of the harassment and that Alum-Line failed to take steps to remedy the situation.
IV. Summary and Disposition.
We reverse and remand to the district court for retrial on Boyle's Title VII claim of sexual discrimination through a hostile work environment. In all other respects we affirm the judgment of the district court. Costs on appeal are taxed one-half to Boyle and one-half to Alum-Line.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Miller, J., concurs; Hecht, J., concurs in part and dissents in part.
I concur with that part of the majority's decision reversing and remanding for retrial on Boyle's Title VII claim of sexual discrimination through a hostile work environment. I dissent, however, from the majority's determination that Boyle waived her ICRA retaliatory discharge claim under the circumstances of this case. The claim was clearly pled. Boyle presented evidence tending to prove her employment was terminated a few days after she complained of sexual harassment which the jury found was (1) perpetrated through offensive sexual language and conduct, (2) based on gender, (3) directed at Boyle, (4) unwelcome and uninvited, (5) so severe or pervasive as to render the workplace hostile, and (6) within Alum-Line's awareness.
Although Boyle chose not to present additional evidence on the ICRA claim when she was invited to do so after her Title VII claim was submitted to the jury, I cannot view this choice as a waiver of the retaliatory discharge claim. She had already proven she was fired soon after reporting sexual harassment which the jury viewed as severe and pervasive. There simply was no reason for Boyle to believe that further evidence supporting the retaliatory discharge claim was required when the invitation for additional evidence was extended by the district court.
The majority opinion correctly reports Alum-Line's counsel's assertion to the district court that "[t]here [was] no retaliatory discharge issue raised." It should be noted that this assertion by counsel was patently inconsistent with the record. As noted above, the claim had been pled and substantial evidence supporting it had already been presented during the jury trial. Although Boyle's counsel failed to contradict opposing counsel's assertion when it was made, it is in my view plausible that counsel deemed it unnecessary given the state of the pleadings and proof. And although in hindsight the record on this issue would have been clearer had Boyle's counsel contradicted opposing counsel's assertion when it was made, the failure to do so should not, under these circumstances, be viewed as a waiver of the retaliatory discharge claim.
Any potential doubt remaining at the conclusion of the trial about Boyle's intention to submit for decision a retaliatory discharge claim under ICRA was clearly eliminated when she filed a post-trial motion and expressly requested the district court to rule on the claim. The majority opinion correctly notes that such motions are properly employed when the district court has failed to resolve a claim properly submitted for adjudication. Because the claim was both pled and supported by substantial evidence, I believe it was properly submitted to the district court for decision before the post-trial motion was filed. When the district court failed to address the claim in its ruling, the omission was properly brought to the attention of the court in Boyle's Rule 1.904(2) motion and preserved for our review on appeal. The purposes of the rule were furthered and the goal of our error preservation rules was achieved when Boyle filed her post-trial motion under the circumstances of this case. I would therefore reverse and instruct the district court to rule on the retaliatory discharge claim on remand.
In State Farm Mutual Automobile Insurance Company v. Pflibsen, 350 N.W.2d 202, 206 (Iowa 1984), our supreme court refused to rule on issues raised on appeal because the party had not (1) made a rule 179(b) [now rule 1.904(2)] motion to amend or enlarge the district court's findings, and (2) raised the issues in its pleading or raised them in his resistance to summary judgment. Pflibsen, 350 N.W.2d at 206; accord Nowlin v. Scurr, 331 N.W.2d 394, 396 (Iowa 1983) (holding failure to plead issue and thereafter file motion to amend or enlarge resulted in failure to preserve issue for appellate review). A fair inference from these holdings would be that had the parties pled the issues and, upon realizing the district court's omissions, filed motions to enlarge, the issues would have been reviewable on appeal.
In Meier v. Senecaut III, 641 N.W.2d 532, 541 (Iowa 2002), our supreme court held a jurisdictional issue raised in a party's motion to dismiss but not ruled on by the district court was not preserved for appellate review because the party failed to file a rule 179(b) post-trial motion. Meier, 641 N.W.2d at 541. In noting that by raising the issue in his motion to dismiss, the party had properly raised the issue for adjudication by the district court, the court also stated "a party may use any means to request the court to make a ruling on an issue." Meier, 641 N.W.2d at 539. I conclude Boyle's inclusion of the ICRA claim in her petition and her presentation of substantial evidence supporting that claim compel the conclusion that the claim was adequately raised. Boyle's post-trial motion sufficiently alerted the district court to its omission, and error was preserved.