[Reported at 636 N.W.2d 100]
IN THE SUPREME COURT OF IOWA
No. 147 / 99-1370
Filed November 15, 2001
ROY
GRAY,
vs.
KINSETH
CORPORATION
d/b/a
COUNTRY KITCHEN
and
LINDA SKINNER,
Appeal Pottawattamie County, Leo F. Connolly,
Judge.
Appeal from dismissal of suit for employment
discrimination. REVERSED AND REMANDED.
name=Text9>Edward L. Wintroub of Wintroub, , Nebraska, for
appellant.
name=Text10>Jacob J. Peters of Peters Law , for appellees.
LARSON, Justice.
Roy Gray filed suit against Kinseth Corporation,
his former employer, alleging gender discrimination. Kinseth moved to
dismiss on the ground Gray had failed to file the suit within ninety days of a
right-to-sue letter sent to him by the Council Bluffs Human Relations
Commission. The district court dismissed the case, and the plaintiff
appealed. We reverse and remand.
I. Facts and Prior Proceedings.
Roy Gray was an employee of Kinseth beginning
May 20, 1996, at a Country Kitchen restaurant in
Council Bluffs. Gray quit this employment on June 23, 1996, and
on October 11, 1996, he filed a complaint with the Council Bluffs
Human Relations Commission (local commission), alleging gender-based
discrimination.
Four days after Gray filed his complaint, the local
commission sent a memo to the Iowa Civil Rights Commission (state commission),
stating “[w]e are cross-filing [Gray’s] complaint with you, but investigation
will be handled through our office.” On October 18, 1996, the state
commission sent the local commission a preprinted form acknowledging receipt of
Gray’s complaint. This form had statements next to boxes to be marked
concerning the local commission’s involvement. A box was marked next to
the statement that the state commission had docketed the case and was notifying
the local commission that it would “await results of your processing.”
However, the boxes next to statements indicating the state commission was referring
or deferring Gray’s case to the local commission, in accordance with a
“referral” or “deferral” contract, were not marked.
On January 8, 1999, counsel for Gray requested
an administrative release (“right-to-sue letter”) from the local commission,
which was issued to Gray on January 12, 1999. This letter stated
that Gray “must sue WITHIN 90 DAYS from your receipt of this Notice,
otherwise your right to sue is lost.” Gray also received a right-to-sue
letter from the state commission dated February 10, 1999, stating:
With this release, Complainant has the right to commence an action in a State
District Court. That action must occur within ninety (90) days of the
issue date: February 10, 1999.
On May 10, 1999, Gray filed his petition in Pottawattamie County District
Court asserting his gender-discrimination claim and alleging that he had sought
and exhausted his administrative remedies against the defendant. This
petition was filed within ninety days of the state’s right-to-sue letter but
118 days after the issuance of his right-to-sue letter from the local
commission.
On July 17, 1999, Kinseth filed a motion to dismiss on the basis Gray’s
petition was filed beyond the ninety days allowed after the local commission’s
right-to-sue letter. This was a “speaking” motion to dismiss, i.e.,
a motion that asserts facts not contained in the petition. Generally, a
motion to dismiss may be granted only if the petition shows on its face no
right of recovery under any state of facts. Ritz v. Wapello County Bd. of
Supervisors, 595 N.W.2d 786, 789 (Iowa 1999). While the plaintiff
contends Kinseth’s motion to dismiss was improper because it asserted facts not
contained in the petition, he has conceded all of the facts necessary to
resolve the narrow legal issue of whether his suit is time-barred. We therefore
hold the plaintiff has waived his procedural argument.
On August 3, 1999, the district court granted the motion to dismiss on the
ground the complaint was filed with the local commission, and the local
commission had acted as the “lead” agency in the matter. Therefore, the
January 12 letter from the local commission began the ninety-day time
period to file suit, rather than the February 10 letter from the state
commission, according to the ruling.
II. The Merits.
Gray makes three arguments why he should not be bound by the timing of the
local commission’s letter: (1) the district court improperly considered
matters not contained in his petition (a matter already discussed); (2) a local
commission cannot issue a right-to-sue letter preempting a right-to-sue letter
from the state commission; and (3) even if a local commission may be delegated
the power to issue a right-to-sue letter binding on the state commission, it
may do so only when the power is expressly delegated to them, and here there
was no evidence of a referral contract between the state and local
commissions.
Gray contends there is no
statutory authority for a local commission to issue an administrative release
that would preempt a plaintiff’s right to sue under the Iowa Civil Rights
Act. Rather, he claims, such a release by a local commission would limit
a plaintiff’s right only under a local ordinance. Gray cites Quaker Oats
Co. v. Cedar Rapids Human Rights Commission, 268 N.W.2d 862, 864 (Iowa
1978), to support this argument. The statute cited by Quaker Oats
was amended[1] in 1978 (and later moved to section 216.19), and now
it appears that, pursuant to section 216.19, local commissions have
jurisdiction to enforce the Iowa Civil Rights Act as well as local
ordinances. Part of the new language reads:
Nothing in this chapter shall be
construed as indicating an intent to prohibit an agency or commission of
local government having as its purpose the investigation and resolution of
violations of this chapter from developing procedures and remedies
necessary to insure the protection of rights secured by this chapter.
All cities shall, to the extent possible, protect the rights of
the citizens of this state secured by the Iowa civil rights Act.
Nothing in this chapter shall be construed as limiting a city or local
government from enacting any ordinance or other law which prohibits broader or
different categories of unfair or discriminatory practices.
Iowa
Code § 216.19 (1995) (emphasis added).
We believe the local commission here has authority to enforce the Iowa Civil
Rights Act, under Iowa Code chapter 216. This, however, does not mean the
local commission has replaced the state commission.
Much of Kinseth’s argument is based on its claim the state commission deferred
to the local commission or referred the case to it, citing Iowa Code section
216.5(12) (1995), which grants power to the state commission “[t]o defer a
complaint to a local civil rights commission under commission rules promulgated
pursuant to chapter 17A,” and Iowa Code section 216.19(fifth unnumbered
paragraph), providing the state commission
in its discretion may refer a complaint
. . . to a referral agency . . . for investigation and
resolution; and a referral agency . . . may refer a complaint filed
with that agency to the commission for investigation and resolution.
Iowa Code section 216.19(fourth unnumbered paragraph) authorizes the state
commission to “establish by rules the procedures for designating a referral
agency and the qualifications to be met by a referral agency.” According
to Iowa Administrative Code rule 161—1.6(2)(c), “‘referral agency’ means any agency
of local government that has been awarded that status by contract with the
[state] commission.” As Gray argues, there is no evidence of such a
contract in the record. Further, in the October 1996 letter from the
state commission to the local commission acknowledging receipt of Gray’s case
for cross-filing, the state commission did not mark the boxes indicating it was
referringGray’s case to the city commission under a referral contract or that
it was deferring Gray’s case to the city commission under a deferral
contract. Thus, there has been no showing that the local commission had
the authority to bind the state commission by issuing a right-to-sue
letter. In fact, the only responsibility assumed by the local commission
as indicated by the exchange of correspondence was that “investigation
will be handled through our office.” (Emphasis added.)
In
the absence of a clear showing that the right to bind the state commission has
been delegated to the local commission through a referral contract, the state
commission’s right-to-sue letter controls. Because we believe the ninety
days began to run on the date of the state commission’s right-to-sue letter and
the suit was therefore timely, we reverse and remand for further proceedings.
REVERSED AND REMANDED.
[1]See
Dietz v. Dubuque Human Rights Comm’n, 316 N.W.2d 859, 860 (Iowa 1982).