More Fresh Law

I was a tad busy last Friday and didn't get to reading the remaining two Iowa Supreme Court opinions. As was pointed out to me, I really should back up and cover McElroy v. State of Iowa.

(Side Note: You've got to love an opinion that starts out "This court is hip deep in issues.")

As before, the facts of this one are interesting enough to quote about verbatim.

FACTS:

In 1994, Julie McElroy enrolled as a graduate student in the doctoral program at the Iowa State University College of Education. Lynn Glass, a male professor in the College, was McElroy’s academic advisor. ISU also hired McElroy to work as a research assistant for Glass. Glass taught at least one of McElroy’s classes.

Glass repeatedly subjected McElroy to unwelcome touching and grossly inappropriate comments. The harassment reached its zenith (or nadir) in April 1995 when ISU sent McElroy to Russia to help Glass run a month-long cultural and educational exchange program for high school students.

Upon arrival at their hotel in Russia, McElroy discovered Glass had arranged for them to share a two-room suite—with both beds in one room. McElroy told Glass she was uncomfortable with the sleeping arrangements and insisted one of the beds be moved to the other room. Glass became furious but eventually relented.

Glass later publicly berated McElroy for not letting him “take care” of her on their first night at the hotel. He told her she could “kiss her Ph.D. good-bye.” While the two were riding the Moscow Metro, he threatened to leave her alone and let her find her way home. This was particularly troublesome because Glass had taken McElroy’s passport and money “for safekeeping” after they had deplaned.

At other times on the trip, Glass gave McElroy a massage after she told him not to do so; rubbed lotion on her feet against her will in a manner that evoked images of sexual intercourse; told her intimate details about his sex life, including a disgustingly detailed description of his semen; kissed her after she told him not to touch her; and ran suddenly into her room and told her he had just “messed himself.” We need not repeat all the salacious facts here; nonetheless we remain fully cognizant of them.

Shortly after returning home from Russia, McElroy made a sexual harassment complaint to Ann Thompson, a department chair in the College. Thompson notified Noreen Daly, Dean of the College. For the most part, Glass fessed up to his actions. Thompson removed Glass from his position as McElroy’s academic advisor and instructor. Thompson also reassigned McElroy to work as a graduate assistant for another professor. Thompson and Daly told Glass to have no contact with McElroy.

Glass continued to pester McElroy. In June 1995, McElroy filed a formal complaint with the ISU Affirmative Action Office. McElroy was frustrated that ISU was not taking adequate steps to stop Glass from harassing her. She also voiced concern that ISU would retaliate against her. ISU appointed an attorney, Jeanne Johnson, to investigate.

Johnson concluded Glass had violated ISU’s sexual harassment policy, created a hostile work environment, and interfered with McElroy’s academic progress. Johnson recommended ISU eliminate interaction between Glass and McElroy, conduct sexual harassment training, and suspend Glass without pay for one semester. Dean Daly adopted Johnson’s recommendations but increased the term of the suspension to one year. ISU’s president tried to fire Glass, but dropped the formal proceedings necessary to dismiss a tenured faculty member after Glass was diagnosed with terminal colon cancer. Glass died in May 1997.

In November 1997, McElroy sued the State of Iowa and ISU (the defendants) for sexual harassment in employment and education, in violation of various federal and state statutes. McElroy maintained the defendants did not adequately address Glass’s behavior. Instead of protecting her from Glass when she complained, McElroy alleged the defendants retaliated by changing the terms of her employment. McElroy claimed she suffered psychologically and physically as a result. She dropped out of the graduate program on December 31, 1997.

PROCEDURE
McElroy initially lost at trial, but the case was reversed due to a confusing jury instruction. On remand, McElroy won over $3 million in damages on her federal claims, including about $2.5 million for emotional distress. Although the court also found a violation of state law, it ruled most of her state law damages were subsumed within her federal law damages. Everybody appealed.

ISSUES
The defendants allege the district court erred when it granted a retrial of all the issues in the case because the erroneous jury instruction involved solely the employment discrimination claim.

The defendants also claimed McElroy had not exhausted her administrative remedies (a pre-requisite to suit), alleging she had only notified the Equal Employment Opportunity Commission (EEOC) and Iowa Civil Rights Commission (ICRC) about her federal and state sex discrimination claims, not her retaliation claims.

McElroy cross-appealed, requesting the Supreme Court overrule Smith v. ADM Feed Corp., 456 N.W.2d 378 (Iowa 1990), and hold plaintiffs under the Iowa Civil Rights Act are entitled to have their claims tried to a jury of their peers.

ANALYSIS AND HOLDING
Regarding the issue of the scope of the retrial, the Court found The general rule is that when a new trial is granted, all issues must be retried. The Court quoted an earlier opinion noting that a partial retrial is only appropriate when there is a single issue to be tried that is easily separable from other issues and injustice will not be occasioned. It then simply stated: We did not limit the scope of the retrial . . . McElroy requested retrial of all claims in that appeal. Finding reversible error with respect to one of those claims, we ordered a new trial. . . without qualification.

Regarding the issue of whether she'd exhausted her administrative remedies, the Court analyzed the state and federal issues separately, but found the same analysis did operate to bar McElroy's retaliation claims under both Title IX and the ICRA. Basically, when she filled out her complaint with the ICRC in 1997, she checked the box labeled “sex” discrimination, but not the “retaliation” box, and she didn't describe any acts of retaliation in the narrative part of the form. She now wanted to allege as part of the suit that after she complained to the ISU Affirmative Action Office, in 1996 she was demoted from a temporary instructor to a graduate assistant. However, in the text of Title IX - the federal statute that prohibits employers from engaging in sexual harassment, etc. - the law specifically requires people who wish to bring suit for a violation to have already gone through the full administrative process for all the claims for which they want to bring suit. The ICRA treats the issue in a similar manner. Because McElroy hadn't even technically filed the retaliation complaint with the ICRC, she failed to exhaust her remedies with respect to alleged retaliation-in-employment, and the Court found that this issue should not have been presented to the jury. It reversed for a new trial on this basis.

(NOTE: the opinion indicates the defendants raised several more issues, but that they didn't need to consider them as they were reversing on the exhaustion issue).

Regarding Ms. McElroy's cross-appeal, the Court found:

On further examination, we conclude the majority’s statutory analysis in Smith was fundamentally flawed and must be overruled. As four members of this court pointed out in Smith, the majority erred when it concluded the ICRA framework was administrative in nature:

The district court does not sit as a civil rights commission; it does not screen cases as does the commission; it does not investigate cases like the commission; nor does a court hear cases under the commission’s rules. When the legislature sought to provide a partial answer to the backlog of undisposed claims before the civil rights commission, it did so by providing an alternative to the administrative proceeding in the form of an ordinary civil action. . . .

While it is true the ICRA generally requires plaintiffs to exhaust their administrative remedies, there is nothing extraordinary about the nature of a district court proceeding brought once those remedies are so exhausted. The ICRA is no different than any other statute providing a cause of action. The ICRA has always permitted a plaintiff to sue for monetary damages in the district court. For this reason, it is not surprising the legislature did not expressly indicate claimants were entitled to a jury trial under the ICRA—it was assumed. . . .

Shortly after Smith was decided, Congress passed legislation that granted litigants the right to a jury trial under Title VII. . . . Subsequently, the Eighth Circuit ruled it was not bound to our pronouncement in Smith. . . . Federal district courts in Iowa have ruled litigants have a right to a jury trial on their ICRA claims in federal court. . . . As McElroy points out, this has resulted in the odd situation that plaintiffs bringing ICRA claims in federal court may receive a jury trial, but those in state court will not.

In truth, there is only one reason to uphold Smith today—stare decisis. These principles are not absolute, however. . . .

[W]hen a rule, after it has been duly tested by experience, has been found to be inconsistent with the sense of justice or with the social welfare, there should be less hesitation in frank avowal and full abandonment. Benjamin N. Cardozo, The Nature of the Judicial Process 150 (1921); see, e.g., State v. Liddell, 672 N.W.2d 805, 813 (Iowa 2003).

For all the foregoing reasons, we overrule Smith and hold a plaintiff seeking money damages under the ICRA is entitled to a jury trial.

COMMENTARY
This is a rather substantial change in the law, but in my opinion one that's long overdue. It's too messy to bifurcate trials, and can lead to some serious venue-shopping in an effort to get a case into the federal court where a jury trial would be guaranteed.

What do you think, Not-the-Moonbat? This is more your area of expertise. BTW - as we've discussed before, if you want to get yourself a blogger account, I could open up the posting to you as a co-blog, not just the comments, and you could put your thoughts on the main page. Could be dangerous. Can't guarantee I'd get around to revamping the template anytime soon, though. . . .