Opinion
No. 4-829 / 03-1776
Filed April 13, 2005
Appeal from the Iowa District Court for Story County, Carl D. Baker, Judge.
Hadi Tabbara appeals from adverse rulings by the district court on summary judgment. REVERSED AND REMANDED.
Robert A. Wright, Jr., of Wright Wright, Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Kerry K. Anderson, Assistant Attorney General, for appellee.
Heard by Sackett, C.J., and Vogel, Zimmer, Hecht, and Eisenhauer, JJ.
Hadi Tabbara appeals from adverse rulings by the district court on summary judgment. We reverse and remand for further proceedings consistent with our decision.
I. Background Facts and Proceedings.
A reasonable person could find the following facts from the summary judgment record when viewed in the light most favorable to the plaintiff-appellant. Dr. Hadi Tabbara and Iowa State University (ISU) have a long and stormy history that dates back to 1986, when Tabbara first came to Ames as a Ph.D. candidate in soil science. Tabbara was then under the supervision of Dr. Ali Tabatabai, but Tabbara's enrollment was short-lived because the two were unable to resolve their scientific and interpersonal differences. Tabbara left ISU in December of 1987 to pursue his studies elsewhere in the United States and in Canada. He returned to ISU in 1996, but his re-admission was delayed because Tabatabai had informed ISU that if Tabbara were re-admitted, Tabatabai would be concerned for his and his family's safety.
Tabbara visited ISU's Affirmative Action office on July 20, 1998. He registered a complaint alleging that Tabatabai's conduct constituted harassment. On August 21, 1998, ISU's Director of Affirmative Action notified Tabbara that his file would be closed because the complaint did not allege violations of the university's affirmative action policy. On August 24, 1998, ISU's Department of Public Safety issued a letter to Tabbara accusing him of harassing the university's faculty and staff, and in particular, having alarming and annoying contacts with Tabatabai. The August 24 letter further directed Tabbara to avoid all contact with Tabatabai, and to refrain from comments or statements implying threats of bodily harm to others.
Tabbara was eventually admitted to the ISU graduate program and received his Ph.D. from ISU in May of 2000. He accepted a post-doctoral position with the university at the Swine Research Center, some distance from the Agronomy Department where Tabatabai's office was located. This placement was ostensibly made in an effort to avoid contact between Tabbara and Tabatabai. Tabbara was the focus of additional complaints received by ISU's Department of Public Safety (DPS) during his post-doctoral engagement, each alleging some type of threatening behavior on Tabbara's part. On October 19, 2000, ISU issued letters banning Tabbara from the campus and terminating his post-doctoral appointment.
Tabbara's access to his assigned housing complex was expressly excluded from the ban.
Tabbara challenged administratively his ban from campus, and he was notified that a hearing would be held on May 11, 2001. ISU informed Tabbara that it did not wield subpoena power in the administrative process, and that many of Tabbara's accusers would not be testifying as they were afraid of Tabbara and had declined to confront him in person. Tabbara was therefore unable to require the presence of Dr. Tabatabai at the hearing. ISU's Vice President of Business and Finance, Warren Madden, serving as the hearing officer, stated the hearing issues as follows:
Tabbara claims he had a conversation with Madden in 1998 after receiving the ISU correspondence ordering Tabbara to cease all contact with Tabatabai and refrain from harassment and annoyance of others. Tabbara claims Madden advised him at that time not to pursue an administrative appeal if he wished to receive a Ph.D. from ISU. Tabbara claims Madden also allegedly advised him not to employ an attorney to represent him at the May 2001 hearing, as that would "complicate" matters.
1. Removal from university files and a lifting of the ban imposed by the Department of Public Safety's letter of October 19, 2000 on Dr. Tabbara.
2. Appeal of the non-renewal of Dr. Tabbara's term appointment ending January 31, 2001.
After a four hour agency hearing, Madden found there was substantial evidence of the threat Tabbara posed to the university and its staff, and recommended the ban remain in force. Tabbara appealed Madden's decision to the Board of Regents, but the Board declined to review the matter and Madden's findings and conclusions thus constituted final agency action for purposes of judicial review. Tabbara sought judicial review of the agency action, citing Iowa Code section 17A.19(10)(f) (2001), and claiming the agency decision was unsupported by substantial evidence when the record is viewed as a whole. The district court disagreed, finding substantial evidence supported ISU's actions.
Madden's findings noted that Tabbara had relocated to another State, and concluded the ban from campus should be lifted for "relevant professional conferences or programs that might be held on the Iowa State University campus in established public meeting places such as the ISU Center or Memorial Union."
Having exhausted his administrative remedies at the university, Tabbara moved forward with a complaint before the Iowa Civil Rights Commission. After receiving a right to sue letter from the commission, Tabbara brought suit against ISU and the Board of Regents in district court alleging a pattern of discrimination by ISU based on national origin dating back to 1986. Tabbara's petition further alleged ISU's action barring him from campus was in direct retaliation for his previously announced intention to file a discrimination complaint with the Iowa Civil Rights Commission that would have claimed the Agronomy Department wrongfully denied him access to ISU research and work facilities.
While ISU denies it had knowledge of Tabbara's intention to file a civil rights action before Tabbara was banned from campus, Tabbara claims he disclosed such intention to several university employees, including ISU's Provost, before notification of the ban.
ISU moved for summary judgment on the grounds the discrimination claim was precluded by final agency action. In support of his resistance, Tabbara, of Lebanese decent, offered his own affidavit, as well as those of two fellow foreign born students of Dr. Tabatabai. The affiants alleged ISU discriminated against foreign students based upon their national origin while treating similarly situated American-born students more favorably. The district court granted summary judgment in favor of ISU and the Board of Regents, however, holding that Tabbara could have raised his discrimination claim before the agency and in the district court on judicial review of agency action. Moreover, the district court concluded Tabbara had a "duty to explore and discover all of his possible claims and to bring them in the same action."
Tabbara now appeals, contending the district court erred in its application of claim preclusion principles in this case.
II. Scope and Standard of Review.
We review the district court's grant of summary judgment for correction of errors at law. Kelly v. Iowa Mut. Ins. Co., 620 N.W.2d 637, 641 (Iowa 2001). "Summary judgment is appropriate only when the moving party shows there are no genuine issues of material fact, and in deciding that issue, we review the record in the light most favorable to the party opposing the motion." Campbell v. Delbridge, 670 N.W.2d 108, 109 (Iowa 2003).
III. Discussion.
Generally, claim preclusion operates as a bar to claims that are substantially similar to those already fully litigated in a separate action. See Penn v. Iowa State Bd. of Regents, 577 N.W.2d 393, 398 (Iowa 1998) (noting claim preclusion bars all matters actually determined in the first action and all relevant matters that could have been determined);
Iowa Coal Mining Co. v. Monroe County, 555 N.W.2d 418, 441 (Iowa 1996) (finding claim preclusion applies not only as to every matter which was offered and received to sustain or defeat the claim or demand, but also as to any other admissible matter which could have been offered for that purpose). "A second claim is likely to be barred by claim preclusion where the acts complained of, and the recovery demanded are the same or where the same evidence will support both actions." Arnevik v. University of Minnesota Bd. of Regents, 642 N.W.2d 315, 319 (Iowa 2002) (citations omitted). Additionally, a claim is not barred where it could not have been "fully and fairly" litigated in the previous action. Whalen v. Connelly, 621 N.W.2d 681, 685 (Iowa 2000) (citations omitted).
After reviewing the contours of Tabbara's current claims of national origin discrimination and retaliation for engaging in protected activity, and contrasting it against the substance of the claims asserted before the agency, we conclude Tabbara's claim is not precluded. Tabbara's petition in this litigation alleges national origin discrimination by ISU dating back to 1986. In contrast, the agency proceeding challenged the sufficiency of the evidence supporting ISU's decision to terminate his post-doctoral appointment and ban him from campus because he posed a security threat. We note that the hearing issues expressly enumerated by Madden, the hearing officer, did not include a discrimination claim. Although the agency's written findings noted that Tabbara believes he was discriminated against by ISU, the consideration of discrimination was so peripheral to the subjects discussed during the hearing that the specific nature of the alleged discrimination was not even referenced in the findings. The hearing record does include the Iowa Civil Rights Commission (ICRC)'s letter of April 9, 2001, documenting that the ICRC found no discrimination by ISU against Tabbara, but this evidence was offered by ISU and was not relevant to the hearing issues specifically enumerated by Madden. Any references by Tabbara at the hearing to discrimination were not fact-specific, and did not attribute to ISU national origin animus or any other discriminatory motivation. At the conclusion of the hearing, Tabbara requested two forms of relief: (1) that the letter banning him from campus be rescinded, and (2) an apology from ISU. We acknowledge that evidence relevant to ISU's decision to ban Tabbara from campus might also be relevant to Tabbara's claim that ISU engaged in a pattern of discrimination against him. However, we conclude the possibility that some evidence supporting the separate claims will overlap is not dispositive for us when taken together with other factors which the court must consider in adjudicating claim preclusion issues.
We acknowledge ISU's affirmative defense that portions of the prior conduct included in Tabbara's current discrimination claim are time-barred. However, ISU has failed to identify with specificity on appeal which aspects of Tabbara's claim are time barred, and the district court has not ruled on the issue. We therefore decline to decide on this record and at this stage of the proceeding how, Iowa Code section 216.15(12) will affect the ongoing proceedings in this case.
Tabbara did send a letter to Madden in advance of the administrative hearing referencing Tabbara's civil rights complaint and outlining some of the incidences of harassment and discrimination he claims to have suffered at ISU. As noted above, however, Madden's enumeration of issues did not include a discrimination claim; and, although the ICRC's finding of no discrimination was noted, the agency's findings and conclusions did not expressly find ISU did not discriminate against Tabbara based on his national origin.
This is in sharp contrast to the scenario presented in Yancy v. McDevitt, 802 F.2d 1025, 1027 (8th Cir. 1986) where the agency made a specific finding that the plaintiff's termination was not based on race. The agency made no finding in this case that ISU's treatment of Tabbara was unrelated to his national origin.
We conclude the conduct complained of in this litigation will extend far beyond the relevant conduct challenged in the agency proceedings. It is also significant that the remedy sought in this litigation differs from that sought in the agency. At the time Tabbara challenged the ban from campus before the agency, he had already left Iowa to take up other employment. Tabbara therefore requested the agency to (1) expunge his records of any reference to unfounded threatening behavior, (2) issue a formal apology, and (3) address the non-renewal of his post-doctoral appointment. In the present litigation he requests relief different in both nature and scope; viz., that the district court (1) declare that ISU's pattern of discrimination based on national origin and retaliation for engaging in protected activity violated his civil rights, (2) permanently enjoin ISU from engaging in further discriminatory conduct, and (3) award compensatory damages and such other relief as is just and proper. Because we find the complained of conduct, the evidence presented, and remedies requested to be sufficiently dissimilar as between the two proceedings, we conclude the claims are not the "same" for purposes of the application of claim preclusion principles. Arnevik, 642 N.W.2d at 319; Whalen, 621 N.W.2d at 685.
We acknowledge that courts have in some instances held that agency decisions precluded subsequent litigation of the same claims. For example, in Doschadis v. Anamosa Cmty. School Dist., 13 F. Supp. 2d 945, 948 (N.D. Iowa 1998), public school teachers sought an evidentiary hearing on their superintendent's termination recommendation. This led to final agency action adverse to the teachers. After the administrative decision was affirmed by a State court, the teachers brought suit in federal court contending their terminations were motivated by sex discrimination. But the court in Doschadis found the two claims were the same, and dismissed the discrimination claim as barred by claim preclusion. Doschadis, 13 F. Supp. 2d at 950. There, however, both actions complained of precisely the same conduct — the termination recommendation. Thus, because the evidence would likely be duplicated and the remedy would be similar in both actions, the court concluded the teachers should have litigated their discrimination claims at the agency level. Id. In the case now before the court, however, ISU's motivations for Tabbara's ban were not truly at issue in the agency action, and the course of discriminatory conduct complained of in this case against ISU is not coterminous with the actions of ISU that were challenged before the agency.
Similarly, in Yancy v. McDevitt, 802 F.2d 1025, 1032 (8th Cir. 1986), the court held that a teacher's discrimination suit was precluded by an earlier agency action. In that case, the plaintiff-teacher claimed before the agency that his termination was race-based. The agency expressly found the employer's action was not motivated by race. The teacher's subsequent federal court action alleging race-based discrimination was dismissed on claim preclusion grounds. Yancy, 802 F.2d at 1032 We conclude Yancy is distinguishable because it is factually inapposite from the circumstances presented by Tabbara. His claim of national origin discrimination was neither expressly presented to nor decided by the agency.
In addition, we conclude Tabbara's claim is not precluded because he could not have fully and fairly litigated his discrimination claim before the very agency alleged to have treated him in a discriminatory fashion and retaliated against his exercise of civil rights. Whalen, 621 N.W.2d at 685; see also Felder v. Casey, 487 U.S. 131, 142, 108 S. Ct. 2302, 2308-09, 101 L. Ed. 2d 123, 129 (1988) (construing 42 U.S.C. § 1983, and stating "[w]e think it plain that Congress never intended that those injured by governmental wrongdoers could be required, as a condition of recovery, to submit their claims to the government responsible for their injuries"). The summary judgment record calls into serious question whether ISU provided a neutral fact finder. Of equal significance is the fact that the administrative procedure provided by ISU to resolve Tabbara's claim was too severely truncated to provide him with a full and fair hearing of a national origin discrimination claim, as compared to the broad relief available under the Iowa Civil Rights Act. At his agency hearing, Tabbara only had access to those witnesses who would voluntarily appear — he had no power of subpoena. As the employer is often in exclusive possession of evidence of illegal motivation or discrimination, the unavailability of compulsory process would have severely limited Tabbara's ability to prove a discrimination claim in the ISU-Regents administrative process.
Tabbara asserts Madden, who served as the hearing officer in his agency action, had previously convinced Tabbara not to pursue a prior claim of discrimination in 1998.
We find most persuasive the preclusion analysis of the West Virginia Supreme Court in Wheeling-Pittsburgh Steel Corp. v. Rowing, 517 S.E.2d 763 (W.Va. 1999). In that case, the court stated, "[f]or issue or claim preclusion to attach to quasi-judicial determinations of administrative agencies . . . the prior decision must be rendered pursuant to the agency's adjudicatory authority and the procedures employed by the agency must be substantially similar to those used in a court." Wheeling-Pittsburg Steel Corp, 517 S.E.2d. at 773. The court went on to note that discrimination suits "require substantial degrees of fact gathering and familiarity with the concepts of discrimination law." It went on to discuss concerns which we share about the fairness and feasibility of litigating discrimination claims at the agency level, stating a grievant with a lawyer would have an unfairly difficult task trying to prove illicit motive or disparate impact without access to the full panoply of discovery opportunities. The problem especially is apparent by the fact that in matters of motive and disparate impact the employer ordinarily possesses the crucial evidence.
Id. The West Virginia court further observed that "a grievant without a lawyer could not possibly be expected to grasp the significance of that law, put together a case of discrimination, and comprehend the full impact of claim and issue preclusion doctrines." Id. Tabbara was not represented by counsel at the agency hearing in this case.
We are also persuaded that the agency lacked the requisite expertise to adjudicate an Iowa Civil Rights Act claim against ISU. In Jew v. University of Iowa, 398 N.W.2d 861, 865 (Iowa 1987), the court ruled that agency employees alleging discrimination on the part of the agency may bring suit in district court and avoid agency adjudication of their claims altogether. In so holding, the court found the employees need not exhaust available agency remedies because an action alleging illegal discrimination against the University bore "scant relation to the agency's statutory mandate or supposed area of expertise." Jew, 398 N.W.2d at 864. It is the district court, and not the university or the regents, which is best equipped to handle Iowa Civil Rights Act claims against regents' universities. Given the many differences between the adjudicatory processes provided at the agency level and those available at the district court, we cannot see how allowing Tabbara's discrimination claim to proceed in district court may be fairly characterized as allowing Tabbara a "second bite at the apple." Bennett v. MC No. 619, Inc., 586 N.W.2d 512, 517 (Iowa 1998). Tabbara is not merely asserting an alternative theory of recovery to the same misconduct, but rather is asserting an entirely separate theory of recovery, alleging an entirely different wrong, and his claim covers far more expansive conduct than he alleged at the agency level. We therefore conclude the district court erred in granting summary judgment in favor of ISU and the Board of Regents on the ground of claim preclusion.
C. Prima Facie Case.
The appellees contend that even if the district court erred in its application of the doctrine of claim preclusion, summary judgment was nonetheless proper because Tabbara failed to engender a fact issue on his national origin discrimination claim. Although the district court based its decision on claim preclusion only, the appellees did contend below that Tabbara failed to generate a fact question on national origin discrimination. We may affirm the district court "on any basis appearing in the record and urged by the prevailing party." Iowa Telephone Ass'n v. City of Hawarden, 589 N.W.2d 245, 252 (Iowa 1999) (citations omitted). We therefore address the question of whether summary judgment was proper in this case notwithstanding the district court's erroneous application of claim preclusion principles.
In order to make out a prima facie claim of discrimination where no direct evidence of discriminatory conduct on the part of the defendant appears, Tabbara must show that similarly situated persons, not in Tabbara's protected class, were treated differently than Tabbara. Naylor v. Georgia — Pacific Corp., 875 F. Supp. 564, 574 (N.D. Iowa 1995). As we read Tabbara's current discrimination claim, he contends Dr. Tabatabai and others in the Agronomy Department leveraged the particularly precarious status of foreign born students against them, treated foreign born students less favorably than American students, and retaliated against foreign students who demanded fairness. When viewed in the light most favorable to Tabbara, the summary judgment record engenders a genuine issue of material fact as to whether foreign students seeking admission to and graduation from post-graduate programs at ISU were treated unfavorably and discriminated against, as compared to American students who were not similarly disadvantaged. The summary judgment record includes the affidavits of Tabbara and two other foreign born graduate students of Dr. Tabatabai that document the unfavorable conditions to which they were exposed, and the retaliation they experienced when they objected. Two of these affidavits explicitly allege ISU and Dr. Tabatabai treated foreign-born graduate students differently, and less favorably than those who are American-born. Viewing this evidence in the light most favorable to Tabbara, as we must, and noting summary judgment in the context of employment discrimination should be seldom used, Crawford v. Runyan, 37 F.3d 1338, 1341 (8th Cir. 1994), we believe Tabbara has sufficiently supported a prima facie case of discrimination to avoid summary judgment.
We reject ISU's contention Tabbara must show similarly situated persons, "engaged in the same or similar opprobrious conduct" while at the university, were disciplined in different ways. Tabbara is alleging discriminatory conduct on the part of the university and its employees beyond the context of his ban from campus and subsequent non-renewal of his post-doctoral appointment. As we read Tabbara's complaint, the discipline he received for his allegedly threatening behavior is at most one aspect of his discrimination claim. Thus, we conclude the disparate treatment of graduate students based on their national origin is the proper basis for determining the merits of Tabbara's claim, and thus proof that non-foreign born students received better treatment than Tabbara will suffice for purposes of proving a prima facie case.
But our inquiry is not yet finished. Proof of a prima facie case merely shifts the summary judgment burden onto ISU to proffer non-discriminatory justifications for their course of conduct regarding Tabbara. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668, 675 (1973). Upon the university's providing of legitimate, non-discriminatory justifications for the treatment of Tabbara, Tabbara then has the burden to establish those justifications are merely pretext for the underlying discrimination. Id. It is this burden ISU contends was shifted to Tabbara, and remains unmet. We disagree.
The legitimate, non-discriminatory justifications claimed by ISU go only to its decision to ban Tabbara from campus and terminate his post-doctoral appointment. On that limited score, the university does contend its decision to ban Tabbara from campus and terminate his post-doctoral appointment had nothing to do with his national origin and everything to do with his exhibition of threatening behavior. ISU and the Regents do not assert non-discriminatory justifications for other allegedly discriminatory treatment of Tabbara, including his exclusion from certain Ph.D. programs, the working conditions he was provided as a graduate student and post-doctoral employee, and the terms of certain post-graduate appointments he received at ISU, all of which Tabbara claims were infected with national origin animus.
When viewed in the light most favorable to Tabbara, his affidavit alleges the term of his post-doctoral appointments was shorter than other similarly situated employees as a consequence of ISU's discrimination based on national origin.
Because we conclude Tabbara adequately supported a prima facie case of discrimination at the summary judgment level, and because we conclude ISU has failed to establish as a matter of law non-discriminatory reasons for portions of the conduct complained of in Tabbara's petition, we reverse and remand this case to the district court for further proceedings consistent with our decision.
REVERSED AND REMANDED.
Zimmer, J., and Eisenhauer, J., concur; Sackett, C.J., and Vogel, J., dissent.
I would affirm the decision of the district court which dismissed Tabbara's action based on claim preclusion.
Sackett, C.J., joins this dissent.