Opinion
No. C98-2102-MJM.
June 28, 2001.
OPINION and ORDER
I. Introduction
Plaintiff Maureen Jester brought the present suit against Hawkeye Community College, William Hierstein, individually, and in his official capacity, Dan Brobst, individually, and in his official capacity, Jerry Bolton, individually, and in his official capacity, and Robert Kimm, individually, and in his official capacity for alleged violations of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000(e) et seq., ("Title VII"), the Iowa Civil Rights Act of 1965, Iowa Code, Chapter 216 ("ICRA"), the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution, and for defamation, breach of contract, tortious interference with contract relations, and intentional infliction of emotional distress. (Doc. no. 1). Presently before this Court are Defendants Dan Brobst and Jerry Bolton's motions for summary judgment, and Plaintiff Jester's motion for partial summary judgment. For the reasons that follow, Defendants' motions for summary judgment are granted and Plaintiff's motion is denied.
II. Standard for Summary Judgment
"Under Rule 56(c), summary judgment is proper `if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) (quoting Fed.R.Civ.Pro. 56); see also Krentz v. Robertson Fire Prot. Dist., 228 F.3d 897, 902 (8th Cir. 2000).
A court considering a motion for summary judgment must view all the facts in the light most favorable to the nonmoving party and give the nonmoving party the benefit of all reasonable inferences that can be drawn from those facts. See Matshusita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); see also Rabushka, ex rel. U.S. v. Crane Co., 122 F.3d 559, 562 (8th Cir. 1997), cert. denied, 523 U.S. 1040 (1998). A court must not, however, "weigh the evidence, make credibility determinations, or attempt to determine the truth of the matter" when evaluating a motion for summary judgment. Quick v. Donaldson Co., 90 F.3d 1372, 1376-77 (8th Cir. 1996) (citing Anderson v. Liberty Lobby Inc., 477 U.S. 242, 256 (1986)). Instead, a court should simply determine whether there are genuine issues of material fact for trial. See id.; see also Johnson v. Enron Corp., 906 F.2d 1234, 1237 (8th Cir. 1990).
"An issue of material fact is genuine if it has a real basis in the record." Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir. 1992) (citing Matsushita, 475 U.S. at 586-87). As to whether a factual dispute is "material," the Supreme Court has explained, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248; see also Beyerbach v. Sears, 49 F.3d 1324, 1326 (8th Cir. 1995); Hartnagel, 953 F.2d at 394.
When bringing a motion for summary judgment, "[p]rocedurally, the movant has the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record which show a lack of a genuine issue." Hartnagel, 953 F.2d at 394 (citing Celotex, 477 U.S. at 323). Once the moving party has carried its burden under Rule 56(c), the nonmoving party must do more than simply show there is "some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586; see also Herring v. Canada Life Ins. Co., 207 F.3d 1026, 1029 (8th Cir. 2000). It must go beyond the pleadings, and by affidavits, or by the "depositions, answers to interrogatories, and admissions on file," designate "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
With these standards in mind, the Court remains cognizant "that summary judgment is a drastic remedy and must be exercised with extreme care to prevent taking genuine issues of fact away from juries." Wabun-Inini v. Sessions, 900 F.2d 1234, 1238 (8th Cir. 1990). Moreover, discrimination cases, such as this one, "`often depend on inferences rather than on direct evidence,' [thus,] summary judgment should not be granted unless the evidence could not support any reasonable inference for the nonmovant." Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1111 (8th Cir. 1995) (quoting Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir. 1994)).
The Court will now recite the facts of the present case in the light most favorable to the nonmoving parties and draw all reasonable inferences in their favor.
III. Factual Background
In August of 1994, Plaintiff, Maureen Jester was hired by Defendant Hawkeye Community College (hereinafter referred to as "Hawkeye" or "College") as an instructor in the Animal Science Department. Her duties included teaching animal science classes with special emphasis in swine, coaching the livestock judging team, and managing the College's swine facility.
Jester's immediate supervisor was Jerry Bolton, the department chair for the Agriculture and Natural Resources Department, encompassing the Animal Science Department. Bolton's immediate supervisor was Richard Lake, Dean of Technical Education at the College, which included the Agricultural and Natural Resources Department. In July 1996, Bolton left Hawkeye to accept a position at Kirkwood Community College in Cedar Rapids, Iowa. Following his departure, Lake assumed Bolton's duties as acting chair of the Agriculture and Natural Resources department and therefore became Jester's immediate supervisor for the balance of her tenure at Hawkeye. Finally, Lake's immediate supervisor was Daniel Brobst, who was Vice-President of Academic Affairs. William Hierstein, also a named defendant, was the President of the College.
Shortly after Jester began her employment with Hawkeye she was assigned a mentor, Defendant Robert Kimm, also an instructor in the Animal Science Department. Under the mentor program, an experienced instructor was assigned to a newly hired instructor to serve as a resource for general guidance and information. The mentor did not, however, have any reporting or supervisory responsibilities in this capacity.
Within four months of commencing her employment at Hawkeye, a conflict developed between Jester and Kimm. According to Jester, Kimm was dissatisfied with her coaching skills and began criticizing her work to her colleagues and students alike. Jester notes, however, that Kimm had no first hand knowledge of her teaching style because he never attended any of her practice coaching sessions. Jester also contends Kimm's complaints about her performance included allegations that Jester failed to build a relationship with the agriculture community, that she dressed unprofessionally and used inappropriate language. Jester maintains that in addition to airing the aforementioned complaints, Kimm spread rumors that she was having sexual relations with her students. Finally Jester alleges that Kimm made the complaints to Bolton, who, in turn, spoke to Jester about them. Kimm does not dispute raising these issues with Bolton, but instead maintains his concerns were simply those reflected in the community. Bolton did not give Jester guidance about how to remedy these issues, nor did he respond to her concerns about Kimm's harassing behavior. Instead, according to Jester, Bolton required that she, in her words, "do as Kimm says and try to get along."
In the spring of 1997, Jester complained to the Human Resource Department about her relationship with Kimm. Jester's discrimination complaint was subsequently investigated by her then supervisor, Richard Lake, and Human Resource Director, Maxine Ballard. During the investigation, the College began receiving letters from alumni and members of the livestock industry expressing their views on the situation; some of the views supported Jester's version of the conflict, others supported Kimm's contentions. It became clear to Ballard that the conflict between Kimm and Jester had morphed into a department wide controversy affecting faculty, students and concerned members of the community. Following the investigation, Ballard reported to Defendant President William Hierstein that there were problems with the positions on both sides and it was simply too difficult to discern what precisely happened. She therefore recommended mediation.
On May 14, 1997, Jester and Kimm participated in a formal mediation conducted by an outside mediator hired by the College. The mediation culminated in both parties signing an agreement which essentially provided that they would cooperate with each other.
Shortly after the mediation, Ballard reported to Hierstein that she was continuing to receive some letters about the matter. Hierstein decided to call a meeting of the Alumni Science Advisory Committee, a committee composed of local livestock producers who met periodically to discuss and provide some direction to the animal science programs at the College, in order to address their concerns about the swine program. The meeting was held as scheduled on June 19, 1997 and attended by six committee members, three guests, and Dan Brobst, the Vice President of Academic Affairs. One of the guests and four of the committee members had written negative letters to the College about Jester during the discrimination investigation. Jester heard about the meeting and requested to attend. Hierstein denied her request.
The day after the meeting, Hierstein was visited by two members of the Hawkeye Board of Trustees: Loren Steimel who had attended the advisory committee meeting, and Board President Willie Culpepper. Steimel reported that following the meeting, he had a conversation with several livestock producers who made it very clear to Steimel that if the College did not do something about the swine program, in particular Jester, the College would lose industry support. Hierstein determined that it would be necessary to reassign Jester to another position outside the Animal Science Department. Jester's performance evaluation for that spring was satisfactory or above in all respects.
In his efforts to determine the nature and extent of the reassignment, Hierstein concluded that Jester would retain the same pay and benefits. He also decided that Jester would be assigned to a position which carried the same status as a faculty member. He did not decide whether Jester would be assigned to a nonteaching position; the only thing he definitively determined was that Jester would be assigned to a position outside the Animal Science Department. Hierstein contemplated that the assignment would be temporary, probably for a semester, and there was a possibility that Jester could eventually rejoin the Animal Science Department.
On July 9, 1997, Ballard met with Jester to inform her about the reassignment. During the meeting Ballard stated that a research or teaching assignment were options.
Jester's union, the Hawkeye Professional Educator's Association, and the College had entered into a valid collective bargaining agreement which set forth an elaborate grievance procedure. Article 14 of the collective bargaining agreement defined a "grievance" as an "allegation of a violation, misapplication or misinterpretation of the terms of this agreement." The agreement further provided that within 10 days of the alleged violation, the "grievant shall meet with his/her immediate supervisor in an attempt to resolve the issue." The agreement then provided for an elaborate step by step process whereby the grievant could meet with the Dean, then the Vice President of Academic Affairs, and finally the President in an effort to resolve the grievance. If none of these steps settled the matter, the grievance proceeded to binding arbitration.
On July 14, 1997, Jester's attorney, Judith O'Donohoe, wrote a letter to Vice-President of Academic Affairs, Dan Brobst, asking to meet with Brobst in compliance with step 1 of the grievance procedure. At the time, Brobst was the acting Dean of Technical Education at the College, as the previous Dean, Lake, had resigned his position at the end of June 1997.
On July 15, 1997, Hierstein met with Jester and her attorney, O'Donohoe, to discuss the nature of the reassignment. During the meeting, Hierstein specifically told Jester that she was not reassigned yet and that she was expected to complete the remaining 22 days of work under the supplemental agreement to her employment contract which expired on August 17, 1997.
On July 24, 1997, O'Donohoe wrote a letter to attorney Steven Weidner who was then representing the College, to confirm their understanding that the meeting with Hierstein would be treated as step 1 of the grievance procedure. O'Donohoe also informed Weidner that Jester had filed a written grievance form with the College in compliance with step 2. O'Donohoe then wrote another letter to Weidner on July 24, 1997 to confirm their further understanding that the parties would suspend the grievance procedure at step 2 pending further negotiations. O'Donohoe confirmed that Jester was completing the remaining 22 days of work under the supplemental agreement to her employment contract. Negotiations then ensued between Weidner and O'Donohoe concerning Jester's status at the college.
On August 20, 1997, Jester submitted her written resignation to Hawkeye. On August 26, 1997, the Board of Trustees at Hawkeye accepted Jester's resignation.
Jester filed a charge of discrimination with the Iowa Civil Rights Commission on February 6, 1998. This charge was subsequently cross-filed with the EEOC. The Civil Rights Commission issued a right-to-sue letter to Jester on August 17, 1998. The EEOC issued a right-to-sue letter to Jester on October 2, 1998. On November 9, 1998, Jester filed the present action.
IV. Discussion
The present suit entails multiple counts against multiple defendants. For purposes of these motions, the Court is only concerned with the following counts and defendants: (1) Count I — a claim of sex discrimination, age discrimination, and sexual harassment pursuant to Title VII, brought against Defendants Bolton and Brobst; (2) Count II — a claim of sex discrimination, age discrimination, and sexual harassment pursuant to the ICRA, brought against Defendants Bolton and Brobst; (3) Count III — a claim of discrimination and sexual harassment pursuant to 42 U.S.C. § 1983 for a violation of the Fourteenth Amendment, brought against Defendants Bolton and Brobst; (4) Count IV — a common law claim of defamation brought against Defendants Bolton and Brobst; (5) Count V — common law claim of breach of contract brought against Defendant Hawkeye College, and (6) Count VII — a common law claim of tortious interference with contractual relations against Bolton and Brobst. Bolton and Brobst move for summary judgment on Counts I through IV and VII, and Jester moves for summary judgment on Count V.
As an initial matter, it appears that Jester concedes neither Defendant Bolton nor Brobst can be held individually liable for claims under Title VII. Likewise, Jester concedes there is insufficient evidence to sustain a claim of defamation and tortious interference with contractual relations against Defendants Bolton and Brobst. Accordingly, Counts I, IV and VII against Defendants Bolton and Brobst are dismissed. The Court will address each of the remaining Counts seriatim.
In Count II and III of Jester's complaint she also alleges age discrimination and retaliation in addition to the other legal theories discussed herein. Jester's failure to address these legal theories in her resistance to Defendants' motion for summary judgment leaves this Court unclear as to whether she has also abandoned these claims. That said, the Court reiterates that a plaintiff resisting a summary judgment motion must go beyond the pleadings, and by affidavits, or by the "depositions, answers to interrogatories, and admissions on file," designate "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). Jester has clearly failed to create a genuine issue of material fact as to her retaliation or age claims. Thus, to the extent Jester has not abandoned these claims under the ICRA or § 1983, the Defendants' motion for summary judgment as to Jester's age discrimination claims and retaliation claims is granted.
A. ICRA Claims of Sex Discrimination and Sexual Harassment
Count II of Jester's complaint alleges sex discrimination and sexual harassment pursuant to the ICRA, Iowa Code Chapter 216. Both Bolton and Brobst maintain Jester has not proffered sufficient evidence to support these claims. In addition, Bolton contends Jester's claims against him are time barred by the requisite statute of limitations. The Court will address each defendant separately.
1. Bolton
Again, Bolton first challenges Jester's ICRA claim on timeliness grounds. In order to pursue a claim under the ICRA a plaintiff must first exhaust her administrative remedies by filing a timely complaint with the Iowa Civil Rights Commission. Iowa Code § 216.16(a). Section 216.15(12) of the Iowa Code provides:
[a] claim under this chapter shall not be maintained unless a complaint is filed with the commission within one hundred eighty days after the alleged discriminatory or unfair practice occurred.
Bolton left Hawkeye College in July of 1996 to accept a position at Kirkwood Community College in Cedar Rapids, Iowa. Therefore, in order for her claim to be sustained against Bolton, Jester must have filed a complaint with the Commission, at the latest, 180 days after his departure, which would have been some five months later in December of 1996, or January of 1997. It is undisputed however, that Jester did not file her charge with Commission until February of 1998.
Jester attempts to avoid the obvious result of her untimely filing by relying on the continuing violation doctrine. This doctrine was codified in 161 Iowa Admin. Code 3.3(2) (1989) (formerly 240 Iowa Admin. Code 1.3(3) "b" (1983)) which reads in pertinent part:
[i]f the alleged unlawful discriminatory practice or act is of a continuing nature, the date of the occurrence of the alleged unlawful practice shall be deemed to be any date subsequent to the commencement of the alleged unlawful practice up to and including the date upon which the unlawful practice has ceased.
By it own terms, the rule allows alleged discriminatory acts of a "continuing nature" to be considered to have occurred as of the last date of those acts. The continuing violation doctrine does not, as Jester purports, excuse compliance with the time limits for filing a charge of discrimination, Hy-Vee Food Stores v. Iowa Civil Rights Comm'n, 453 N.W.2d 512, 527 (Iowa 1990), but instead allows a plaintiff to challenge acts of discrimination outside the statute of limitations period if the acts of discrimination constitute a continuing pattern of discrimination and at least one of the challenged acts falls within the requisite statute of limitations period. Id.; see also Delaware State College v. Ricks, 449 U.S. 250, 258 (1980). Here it is undisputed that none of Bolton's acts fall within the statute of limitations period.
Jester also attempts to salvage this claim by arguing the effects of Bolton's prior acts fall within the statute of limitations and therefore make her charge timely. This argument was addressed and rejected by the Iowa Supreme Court in Hy-Vee Food Stores, 453 N.W.2d at 527. There, the Court wrote:
Because the rationale for the doctrine is to provide a remedy for past actions that operate to discriminate now, the alleged discrimination must be ongoing. Such discrimination may not be merely the consequence of a now time-barred event.Id. (internal citations omitted). Jester does not point to any contrary caselaw, nor has this Court found any. Accordingly, this Court finds Jester's ICRA claim of sex discrimination and harassment against Bolton is time barred and Bolton's motion for summary judgment on Count II is therefore granted.
2. Brobst
Brobst argues Jester has failed to proffer sufficient evidence to support a claim of sex discrimination or sexual harassment under the ICRA. This Court agrees.
(a) Sex Discrimination Theory of Recovery
A claim of sex discrimination pursuant to the ICRA mirrors the legal framework of Title VII. See Fisher v. Pharmacia UpJohn, 225 F.3d 915, 919 n. 2 (8th Cir. 2000) (citing Montgomery v. John Deere Co., 169 F.3d 556, 558 n. 3 (8th Cir. 1999)). Accordingly, the familiar burden shifting paradigm of McDonnell Douglas applies. Engstrand v. Pioneer Hi-Bred Int'l, 946 F. Supp. 1390, 1397 n. 4 (N.D.Iowa 1996) (applying burden shifting framework to ICRA claim on the premise that "Iowa courts have held that state's civil rights statutes including, Chapter 216, are patterned after Title VII") (internal quotations omitted).
Under McDonnel Douglas, Jester must first make out a prima facie showing of discrimination. To do so she must establish: (1) she is a member of a protected class; (2) she was qualified for the position; (3) she was discharged from or denied the position, or suffered an adverse employment consequence; and (4) that non-members of the protected class were treated more favorably. See Reeves v. Sanderson Plumbing Prods., Inc., 120 S.Ct. 2097, 2105 (2000) ; McDonnell Douglas, 411 U.S. at 802.
Jester has clearly established element one of her prima facie case, and created a genuine issue of fact as to element two. It is element three, the adverse employment action, where Jester has failed to generate a question of fact as to Defendant Brobst. While it is true that Jester was transferred to another department which, in some instances, can constitute an adverse employment action, Spears v. Missouri Dep't of Corrections and Human Resources, 210 F.3d 850, 853-54 (8th Cir. 2000) (finding "[a] transfer constitutes an adverse employment action when the transfer results in a significant change in working conditions or a diminution in the transferred employee's title, salary, or benefits), there is nothing in this record to suggest that Brobst was responsible for the decision to transfer Jester. On the contrary, the undisputed record evidence shows that Hierstein determined that it would be necessary to reassign Jester to a position outside the Animal Science Department. There is no evidence to suggest Hierstein consulted Brobst about this decision, and indeed he was on vacation when the decision was made and only learned of it upon his return. Jester makes much of Brobst's attendance at a meeting of the Science Advisory Committee; a meeting which, as Jester contends, "prompted the decision to terminate her from her teaching duties." As noted earlier, Jester was not permitted to attend this meeting. The meeting was attended, however, by members of the swine community who had written letters to the College during the previous investigation into the Kimm/Jester conflict, in which they voiced their concerns about Jester's performance. That said, there is no evidence that the decision to reassign Jester was made at this meeting, nor is there any evidence, apart from his mere presence at the meeting, that Brobst participated, facilitated, or suggested that she be transferred. More to the point, the undisputed evidence reveals that Hierstein was approached by Board member Loren Steimel one day after that meeting, who urged him to consider moving Jester out of the department. It was at that time Hierstein decided to reassign Jester and there is nothing linking Brobst to Hierstein's ultimate decision to do so.
Because there is no set of facts in the record which would support a finding that Brobst took an adverse employment action against Jester based on her gender, Jester's claim against Brobst for gender discrimination fails as a matter of law.
(b) Sexual Harassment Theory of Recovery
As an alternative theory of recovery, Jester alleges sexual harassment pursuant to the ICRA. Like gender discrimination, sexual harassment claims pursuant to the ICRA are analyzed under a similar legal framework as sexual harassment claims brought pursuant to Title VII. See Lynch v. City of Des Moines, 454 N.W.2d 827, 833 (Iowa 1990). To state a claim for sex harassment by a non-supervisory co-worker, a plaintiff must first establish that:
(1) she belongs to a protected group;
(2) she was subject to unwelcome sexual harassment;
(3) the harassment was based on sex;
(4) the harassment affected a term, condition, or privilege of employment;
(5) the employer knew or should have known of the harassment and failed to take proper remedial action.Lynch, 454 N.W. at 833; Klein v. D. McGowan, 198 F.3d 705, 709 (8th Cir. 1999) ; Phillips v. Taco Bell Corp., 156 F.3d 884, 888 n. 4 (8th Cir. 1998).
Because there is no record evidence that Brobst sexually harassed Jester, her only viable theory of recovery against Brobst is, as a supervisor, he knew or should have known about Kimm's harassment and is liable for his failure to take adequate action. Bailey v. Runyon, 167 F.3d 466, 468 (8th Cir. 1999); Davis v. Tri-State Mack Distribs., Inc., 981 F.2d 340, 343 (8th Cir. 1992). Here again, Jester has failed to proffer evidence to support this claim.
The record evidence reveals that Brobst heard about the conflict between Jester and Kimm during an academic affairs meeting. However there is no evidence that he was called on to remedy the problem, or, more importantly, that it was even his responsibility as Vice President of Academic Affairs to personally respond to her complaints of harassment. While Jester urges this Court to hold Brobst can be found liable for his failure to take immediate disciplinary action against Kimm upon learning of the said harassment, she ignores the fact that Ballard of Human Resources and Lake, her immediate supervisor, were addressing her complaints of harassment. Indeed, such claims are usually within the ambit of the Human Resources Department, and the department carried out an investigation pursuant Jester's complaints. There is simply no evidence to suggest Brobst was told to take disciplinary action against Kimm and failed to do so. Moreover, the unrefuted evidence is that the investigation came to an impasse and no determination as to the underlying accusations of sexual harassment was ever made. Brobst certainly could not be expected to unilaterally make decisions about the appropriate discipline of Kimm in such an instance. Because Jester failed to make an adequate showing that Brobst knew or should have known of the harassment and failed to take proper remedial action, her claim fails as a matter of law.
Pursuant to the foregoing discussion, Brobst's motion for summary judgment as to Count II of Jester's complaint is granted.
B. Equal Protection Claims Pursuant to 42 U.S.C. § 1983 .
In Count III Jester brings an Equal Protection claim pursuant 42 U.S.C. § 1983 alleging Defendants discriminated against her based on her gender and are liable as supervisors for the injuries caused by Kimm's sexual harassment. Here again Defendants Bolton and Brobst maintain Jester has failed to proffer sufficient evidence to support her claim. And again, Bolton maintains her claims are barred by the requisite statute of limitations.
1. Bolton
Title 42 U.S.C. § 1983 contains no statute of limitations, Wilson v. Garcia, 471 U.S. 261, 266 (1985), and there is no federal statute which governs § 1983 claims. Board of Regents Univ. of New York v. Tomanio, 446 U.S. 478 (1980). As a result, federal courts looked to state statutes governing analogous causes of action, specifically those governing personal injury claims. Wilson, 471 U.S. at 267-68. Thus in this instance the Court will look to Iowa Code § 614.1(2) the governing statute of limitations for claims of personally injury, which requires the action be brought within two years.
Applying this statute of limitations period to the present case, for any discriminatory practice to be actionable against Bolton, it must have occurred after November of 1996, Jester having filed her complaint in November of 1998. As stated earlier, Bolton left the College in July of 1996 and no employment relationship between he and Jester existed from that point forward. Accordingly her claim is time barred.
Jester argues her claim did not begin to toll until July 1997 because it was not until then, at her reassignment, that she appreciated the full extent of her injury. Under federal law, the statute of limitations begin to run when plaintiff knows or should have known the existence and cause of the injury. Slaaten v. United States, 990 F.2d 1038, 1041 (8th Cir. 1993) (citing United States v. Kubrick, 444 U.S. 111, 121-23 (1979)). This does not mean, however, that the plaintiff must realize that her claim is legally redressable, or the extent, seriousness, or permanence of the injury for the statute of limitations to begin running. KES v. United States, 38 F.3d 1027, 1029 (8th Cir. 1994). It is clear from the record that Jester knew about Kimm's allegedly discriminatory conduct prior to July 1996, that she reported the conduct to Bolton prior to July 1996 and he allegedly did nothing about it. Those are the facts that underpin her case against Bolton and they occurred outside actionable statute of limitations period. Her claim is therefore time barred and Bolton's motion for summary judgment on Count III of Jester's complaint is granted.
2. Brobst
(a) Discrimination Based on Gender
To sustain an Equal Protection claim, Jester must present evidence that she was singled out and treated differently, on the basis of a prohibited characteristic, from persons similarly situated. Ellebracht v. Police Bd. of Metro. Police Dep't of St. Louis, 137 F.3d 563, 566 (8th Cir. 1998); Roarke v. City of Hazen, Arkansas, 189 F.3d 758, 761 (8th Cir. 1999) (affirming grant of summary judgment to defendant on section 1983 equal protection claim). To this end, Jester contends she was treated differently based on her gender when she, as opposed to her male counterpart Kimm, was transferred to another position. As such, she argues, Kimm, a man similarly situated to her, received favorable treatment in violation of the Equal Protection Clause.
The focus of the "similarly situated" inquiry is on whether the plaintiff is "similarly situated in all relevant respects" to another group for purposes of the challenged government action. Williams v. Ford Motor Co., 14 F.3d 1305, 1309 (8th Cir. 1995) (quoting Smith v. Monsanto Chemical Co., 770 F.2d 719, 723 (8th Cir. 1985)); Klinger v. Department of Corrections, 31 F.3d 727, 731 (8th Cir. 1994), cert. denied, 513 U.S. 1185 (1995). See Arnold v. City of Columbia, Mo., 197 F.3d 1217, 1220 (8th Cir. 1999) ("To prove their equal protection claim [based on disparate pay], appellant [police officers] were required, as a threshold matter, to demonstrate that they were treated differently from others similarly situated to them."); Keevan v. Smith, 100 F.3d 644, 648 (8th Cir. 1996) ("Treatment of dissimilarly situated persons in a dissimilar manner by the government does not violate the Equal Protection Clause."). Jester has not attacked this element of her claim with any precision; indeed, she has not even recognized it as central to her Equal Protection challenge. That said, one can certainly extrapolate from the record and accompanying briefs, that Jester's version of events are as follows: She and Kimm were in similar employment positions; a conflict ensued that was sexually charged; and Jester was selected for transfer over Kimm which amounted to differential treatment based on gender in violation of the Equal Protection Clause of the Fourteenth Amendment. However, one can also certainly extrapolate from the undisputed facts in the record that Kimm had significantly more teaching and coaching experience than Jester; that Kimm founded the very program Jester was charged with supervising; and Kimm garnered significantly more influence in the department because of his 20-some odd years of employment with the department. This stands in contrast to the undisputed facts that Jester had but a few years of teaching and coaching experience, and even fewer years of employment in the department. Accordingly, Jester's claim that she is "similarly situated in relevant all respects" to Kimm is looked on with great scepticism by the Court.
This discussion does not suggest the treatment of Jester was not motivated by her gender. Instead, it simply recognizes that for Jester to prevail on an Equal Protection claim she must make some showing that she was similarly situated to those who received the favorable treatment.
Even assuming that Jester has adequately shown she was similarly situated in all relevant respects to Kimm, because she did not suffer an adverse employment action at the hands of Brobst, as explained earlier in the Court's order, her claim does not withstand summary judgment scrutiny. That is, here again, Jester's entire claim is premised on the argument that her reassignment constituted unlawful differential treatment in violation of the Equal Protection Clause. Naturally, for Brobst to be held liable for this action, Jester must tie Brobst to the purportedly unlawful decision to transfer her. Her failure to do so is fatal to her claim.
(b) Sexual Harassment
Like her ICRA claim, Jester's sexual harassment claim pursuant to § 1983 is based on supervisor liability. Under § 1983, a supervisor may be held liable in their individual capacity when he or she demonstrates a "deliberate indifference or tacit authorization of the offensive acts by failing to take remedial steps following notice of a pattern of such acts by his subordinates." Wilson v. City of North Little Rock, 801 F.2d 316, 323 (8th Cir. 1986). "The supervisor must know about the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what [he or she] might see." Boyd v. Knox, 47 F.3d 966, 968 (8th Cir. 1995). Therefore in order to make out a prima facie showing of supervisor liability, a plaintiff must show: (1) the supervisor received notice of a pattern of unconstitutional acts committed by subordinates; (2) the supervisor demonstrated deliberate indifference to or tacit authorization of the offensive acts; (3) the supervisor failed to take sufficient remedial action, and (4) such failure proximately caused injury. Andrews v. Fowler, 98 F.3d 1069, 1078 (8th Cir. 1996).
Jester has failed to make this threshold showing, largely for the same reasons articulated in the Court's previous discussion of her sexual harassment claim pursuant to the ICRA. And again, while it appears Brobst was told of Jester's harassment complaints, there is no evidence that Brobst encouraged the harassment, facilitated it, or condoned it in any way. Jester seems to suggest his failure to do anything about it personally makes him liable. However there is no record evidence to suggest Brobst rebuked requests to address the problem, nor is there any evidence to suggest the resolution of the problem was even within the purview of his duties. Instead, her claims of harassment were addressed by the human resources department. Had the human resources department failed to act, perhaps Brobst's inaction would take on a new light. However, the human resources personnel carried out an investigation in search of a satisfactory solution to this very difficult problem, of which, incidentally, Jester's claims of harassment were only one part.
It is worth noting at this point that, from this Court's review of the record, it appears the conflict between Kimm and Jester had a significant negative impact on everyone involved, including members of the faculty, students, and members of the swine community. Moreover, according to Ballard's testimony, although an investigation ensued, it only served to entrench contrasting opinions and further fraction the department. At the behest of the human resources department, Jester and Kimm underwent a mediation to resolve their conflict, but that too failed. The suggestion that Brobst personally turned a "blind eye," condoned, or facilitated Kimm's harassment of Jester, even though those charged with solving the problem were investigating her claims, looking for resolutions, but ultimately could not resolve them, is simply without merit.
Accordingly, Jester's Equal Protection claim under Count III fails as matter of law and Brobst's motion for summary judgment is granted.
C. Breach of Contract
The remainder of the Court's opinion will address Jester's motion for partial summary judgment on Count V of her complaint stating a claim for breach of contract against Hawkeye College. Like the previous counts of her complaint, Jester posits multiple legal theories for relief under a single count. First, Jester argues Hawkeye breached her employment contract by violating provisions of Chapter 279 of the Iowa Code. She then argues that Hawkeye breached her employment contract by violating certain provisions of their agreed upon collective bargaining agreement ("CBA"). Finally, she argues that her reassignment constituted a constructive discharge in violation of her employment contract. The Court will address each of these theories in turn.
1. Chapter 279
Jester alleges that Hawkeye College breached her employment contract by reassigning her to a non-teaching position. Her claim is premised, in part, on Chapter 279 of the Iowa Code. Specifically at issue are the procedures outlined in Chapter 279.15 which provide in relevant part:
The superintendent or the superintendent's designee shall notify the teacher not later than April 30 that the superintendent will recommend in writing to the board at a regular or special meeting of the board, held not later than May 15, that the teacher's continuing contract be terminated effective at the end of the current school year. . .
The statute goes on to state:
Notification of recommendation of termination of a teacher's contract shall be in writing and shall be personally delivered to the teacher, or mailed by certified mail. The notification shall be complete when received by the teacher. The notification and the recommendation to terminate shall contain a short and plain statement of the reasons, which shall be for just cause, why the recommendation is being made. The notification shall be given at or before the time the recommendation is given to the board.
Iowa Code § 279.15(2) (1997). According to the statute, within five days of the receipt of the written notice, the teacher may request a hearing with the board. Id.
This statute proscribes procedures for the termination of a teacher, while the undisputed facts of this case reveal that Hierstein did not recommend Jester's termination but instead sought to reassign her to a different position. To this Jester argues the College's proposal for a reassignment did not include teaching duties and therefore took her out from under the protection of this statute, which in turn constituted a termination for purposes of this statute. Having moved for summary judgment on these grounds, Jester implicitly asserts that the reassignment constituted a termination, for purposes of this statute, as a matter of law. This is where Jester's argument fails.
Even a cursory review of the record reveals the circumstances surrounding her proposed reassignment are heavily disputed. Indeed, Hierstein alleges the reassignment was yet to be determined when Jester effectuated her resignation. He contends the reassignment could have been to a tenured faculty position which would have been covered by the statute; and in fact the position he maintains he was considering was with the College's Teaching and Learning Center, a division designed to advise other faculty members about new methods and equipment. This position would have required Jester to maintain her teaching certificate, and likewise provided her continued protection of Chapter 279.
While Jester disputes the College's version of events, the Court must view the facts in the light most favorable to the nonmoving party, in this instance Hawkeye College. Simply stated, material facts in dispute about the nature of Jester's reassignment preclude the Court from holding, as a matter of law, that the College's decision to reassign Jester was a breach of her employment contract.
The Court notes that the College also makes the alternative argument that even assuming Jester's reassignment did constitute a termination for purposes of Chapter 279, Jester waived any cause of action premised on that chapter by availing herself of the grievance procedures in the CBA. The College relies on the Iowa Supreme Court case Atlantic Education Ass'n v. Atlantic Comm. School Dist., for the proposition "that grievance arbitration takes precedence over an ongoing chapter 279 proceeding if the decision to terminate a teacher is arbitrable under the controlling collective bargaining agreement." 469 N.W.2d 689, 691 (Iowa 1991) (citing Shenandoah Educ. Ass'n v. Shenandoah Community School Dist., 337 N.W.2d 477 (Iowa 1983)). "Arbitrability" the Atlantic court concluded, is "a legal issue the court must resolve through interpretation and construction of the parties' collective bargaining agreement." Id. (citing Iowa City Community School Dist. v. Iowa City Educ. Ass'n, 343 N.W.2d 139, 141 (Iowa 1983)); see also Lewis Central Educ. Ass'n v. Lewis Central Community School, 559 N.W.2d 19, 21 (Iowa 1997).
Hawkeye's argument, simply stated, appears to be this: Jester's complaint constitutes a grievance covered by the arbitration clause of the CBA, Jester pursued her claim through the CBA's grievance procedures and thereby relieved the College of any duty to comply with the procedures of Chapter 279. Resolution of this argument in the College's favor would defeat Jester's breach of contract claim in its entirety. The College has not however, moved for summary judgment in its own right, nor has Jester fully briefed the issue of whether she waived her right to Chapter 279 protection. Accordingly, the Court is not inclined to resolve this issue as a matter of law at this time.
2. Collective Bargaining Agreement
Jester's additional theory of relief under Count V is premised on an alleged violation of Article 5 of the CBA which stipulates guidelines for a transfer. Hawkeye makes two arguments in its resistance to Jester's summary judgment on this claim. First, Hawkeye contends that Jester waived her claims for a breach of the CBA by failing to exhaust the grievance procedures of the CBA. Alternatively, Hawkeye contends that there are genuine questions of fact as to whether the CBA was breached.
(a) Exhaustion of the CBA's Grievance Procedures
The parties' CBA has an elaborate grievance procedure that can be employed to settle disputes such as this one. It entails a five-step process that culminates in arbitration if all the previous steps fail to resolve the dispute. The College maintains that Jester was required to go through the preliminary steps outlined in the CBA procedures prior to filing suit for a violation of the CBA.
A public employee is not required to process a grievance through arbitration prior to redressing the grievance in court. Steele v. Dept. of Corrections, Mt. Pleasant, 462 N.W.2d 299 (Iowa App. 1990). The "Iowa Code section 20.17(5) allows an employee to enforce the terms of a collective bargaining agreement in a civil action in the district court," and section 20.18 of the code sets out certain procedures that must be followed prior to filing in district court. Id. It reads:
An agreement with an employee organization which is the exclusive representative of public employees in an appropriate unit may provide procedures for the consideration of public employee grievances and of disputes over the interpretation and application of agreements. Negotiated procedures may provide for binding arbitration of public employee grievances and of disputes over the interpretation and application of existing agreements. An arbitrator's decision on a grievance may not change or amend the terms, conditions or applications of the collective bargaining agreement. Such procedures shall provide for the invoking of arbitration only with the approval of the employee organization, and in the case of an employee grievance, only with the approval of the public employee. (emphasis added).
The College contends, the Steele decision and § 20.18 of the Iowa Code notwithstanding, a grievant must process their grievance through the CBA's preliminary steps prior to filing suit for an alleged violation of the CBA. However, Jester maintains that she did attempt to utilize the preliminary grievance procedures of the CBA and it was the College that failed to comply with the procedures. Specifically, Jester suggests that the College refused to put her reassignment on hold — the very essence of the dispute — pending a resolution of the grievance. The Court is cognizant these facts are disputed by the College. However, were they true, requiring Jester to go through each step of the grievance procedure in order to file suit, while the College failed to comply with the grievance procedures by carrying out the disputed reassignment prior to a resolution, would be contrary to the spirit of the grievance procedures, the holding of Steele and § 20.18 of the Iowa Code. In any event, the factual disputes surrounding the matter preclude any resolution as to whether Jester properly exhausted her remedies under the CBA.
(b) Factual Dispute as to Whether Hawkeye Breached the CBA
Hawkeye contends there are numerous issues of disputed fact that preclude summary judgment on Jester's claim that Hawkeye breached the CBA by reassigning her to another position. Having thoroughly reviewed the record, the Court agrees. Indeed, it appears the parties contest everything from the nature of the transfer to when it would have occurred and whether it was permanent. These are factual disputes that are best resolved by a jury and would preclude a grant of summary judgment at this time.
The Court is cognizant that Jester has argued in the alternative that her reassignment constitutes a constructive discharge. However, "[s]tanding alone, constructive discharge is neither a tort nor a breach of contract, but a doctrine that transforms what is ostensibly a resignation into a firing. Even after establishing constructive discharge, an employee must independently prove a breach of contract or tort in connection with employment termination in order to obtain damages for wrongful discharge." Balmer v. Hawkeye Steel, 604 N.W.2d 639, 642 (Iowa 2000). Because the Court finds there are questions of fact precluding summary judgment on Jester's breach of contract claim, a ruling on her claim of constructive discharge would be premature at this time.
ORDER
In accordance with the opinion filed herewith, it is ORDERED:
(1) The Defendant Bolton's motion for summary judgment is GRANTED. (Doc. 45)
(2) The Defendant Brobst's motion for summary judgment is GRANTED. (Doc. 47).
(3) The Plaintiff Jester's motion for partial summary judgment is DENIED. (Doc. 51)
Done and so ordered this 28th day of June, 2001.
___________________ Judge Michael J. Melloy United States District Court for the Northern District of Iowa