IN THE COURT OF APPEALS OF IOWA
EUGENE VISLISEL,
Appellant,
VS.
IOWA CIVIL RIGHTS COMMISSION AND INGA BUMBARY-LANGSTON,
Appellees,
and
HUNTER RAWLINGS III, STATE UNIVERSITY OF IOWA, and
THOMAS J. MILLER, IOWA ATTORNEY GENERAL,
Respondents.
No. 9-669/89-789
Appeal from the Iowa District
Court for Linn County, Kristin L. Hibbs, Judge.
Petitioner appeals a district
court's affirmance of an Iowa Civil Rights commission ruling.
AFFIRMED.
Eugene Vislisel, Cedar Rapids,
petitioner-appellant, pro se.
Thomas J. Miller, Attorney
General, and Teresa Baustian, Assistant Attorney General, for
respondents-appellees.
Heaard by Oxberger, C.J., and Donielson and Habhab, J.J.
PER CURIAM
Petitioner Eugene Vislisel
has been engaged in seeking employment with the University of
Iowa (University). As a result of his job search he filed a suit
against the University challenging its application of the Veteran's
Preference Law, Iowa Code chapter 70. See Vislisel v. The University
of Iowa, 445 N.W.2d 771 (Iowa 1989). Vislisel continued to
seek interviews at the University while this suit was pending.
However, University personnel felt Vislisel was not a serious
job candidate, but was using the interviews as an attempt to conduct
discovery for his suit. Merle Wilna Fleming, an assistant attorney
general, sent Vislisel a letter on June 18, 1987, informing him
that if he did not quit his use of harassment and intimidation
he would not be allowed further interviews. On September 23, 1987,
the University suspended consideration of Vislisel's application.
Vislisel filed a claim with
the Iowa Civil Rights Commission (Commission) alleging that the
University barred him from interviewing on the basis of retaliation
and age. After an investigation the Commission entered a finding
of no probable cause. The Commission found that the University
could reasonably question Vislisel's sincerity in seeking employment
because of his obnoxious behavior during interviews. Vislisel
filed a petition for judicial review. The district court affirmed
the Commission.
Vislisel now appeals. He
claims the letter from Fleming clearly shows he was being barred
from interviewing because of his pending suit against the University.
He feels he was within his rights to bring up his interpretation
of the Veteran's Preference Law at job interviews. Vislisel believes
that he made out a prima facie case of discrimination and that
the burden of proof should have shifted to the University. Vislisel
contends that he then should have been given an opportunity to
show that the University's alleged reasons were pretextual. He
asserts that the Commission erred in finding no probable cause
and the court erred in not reversing the Commission. We affirm.
In determining our scope
of review, we initially note that the present case involves a
"no probable cause" ruling from the Iowa Civil Rights
Commission, and as such, is governed exclusively by the Iowa Administrative
Procedures Act, Iowa Code chapter 17A. Because the "no probable"
determination was not proceeded by a contested case, our review
is under the standard of "other agency action." Sheet
Metal Contractors v. Comm'r of Ins., 427 N.W.2d 859, 867
(Iowa 1988). Under this standard, we do not hear cases de novo,
but act in an appellate role to correct errors of law or unreasonable,
arbitrary or capricious action. Iowa Bankers Ass'n v. Iowa
Credit Union Dep't, 335 N.W.2d 439, 448-49 (Iowa 1983). Therefore,
the lack of substantial evidence ground set forth in Iowa Code
section 17A.1 9 (8)(f) is not applicable here. Mowrey v. Iowa
Civil Rights Comm'n, 424 N.W.2d 664, 665 (Iowa App. 1988).
We first address Vislisel's
argument that the trial court erred in finding no evidence of
retaliation. The main thrust of Vislisel's argument is that the
action warned of and advised by Assistant Attorney General Fleming
to preclude him from applying for positions at the University,
and subsequently carried out by the University, constitutes illegal
retaliation. Retaliation suits require plaintiffs to establish
a prima facie case based upon four elements: (1) the plaintiff
filed a complaint of discrimination in opposition to practices
made unlawful under Title VII, 42 U.S.C. section 20OOe-2 (a);
(2) the plaintiff is a member of a protected class; (3) the plaintiff
was subject to adverse treatment by the employer; and (4) there
was a causal connection between his opposition or participation
and the adverse treatment. Mosley v. General Motors Corp.,
497 R. Supp. 583, 589 (E.D. Mo. 1980), aff'd 691 F.2d 504
(8th Cir. 1982); Taylor v. Amaturo Group, Inc., 518 F.
Supp. 1331, 1336 (E.D. Mo. 1981); Windsom v. City of St. Louis,
427 F. Supp. 806, 812-13 (E.D. Mo. 1977), aff'd 568 F.2d 78 (8th
Cir. 1977).
Vislisel has, without question,
satisfied the first element. Vislisel was participating in an
Iowa Code chapter 601 A proceeding (or Title VII proceeding) in
which he had filed a prior complaint. Iowa Code section 601 A.
11 (2) provides that it shall be considered a discriminatory practice
for "[a]ny person to discriminate against another ... because
such person has lawfully opposed any practice forbidden ... or
has filed a complaint ... or assisted in any proceeding under
this chapter." Thus, Vislisel has met the second element.
In addition, there is no question that Vislisel was subjected
to adverse treatment, since the Attorney
General's office did
advise the University to suspend Vislisel's right to apply for
employment, and the University acted upon said advice. The remaining
question, however, is whether there was a causal connection between
his filing of a complaint and the adverse treatment. We believe
there was not.
The Commission found, and
we agree, that the record was replete with evidence of Vislisel's
obnoxious and boorish behavior. Vislisel's conversations with
various members of the University administration reveal his rude
and insensitive comments towards persons who attempted to answer
his questions. An examination of various interviews granted Vislisel
reveal that the interviews appeared to be used by Vislisel to
gather further information for his pending complaint. The University
warned Vislisel that his continued hostile behavior would result
in his being denied the opportunity to interview, yet Vislisel
refused to modify his behavior, using the interviews as a sort
of vehicle for discovery. Vislisel was told not to contact various
persons in the University administration, yet he persisted in
doing so. No one in the Attorney General's office or the University
suggested to Vislisel that he withdraw his complaint or he would
be suspended from interviewing. All that the University required
was Vislisel's promise that he would cease his insulting behavior.
In Rollins v. State of
Fla. Dep't of Law Enforcement, 868 F.2d 397, 401 (11 th Cir.
1989), the Eleventh Circuit Court of Appeals, in considering suit
brought under Title VII alleging retaliation, held that "the
manner in which an employee expresses her opposition to an allegedly
discriminatory employment practice must be reasonable." In
Rollins, the plaintiff had alleged that the Florida Department
of Law Enforcement had denied her opportunities to advance because
she was a Black. 868 F.2d at 399. The Rollins court noted that
the plaintiff was unruly, antagonistic, insubordinate, a chronic
complainer, and lodged her complaints in an incorrect and disruptive
manner. Id. at 399-400. The Rollins court held that if
the manner in which the employee complains is unreasonable, such
conduct falls outside the protection of the statute, and a legitimate
basis for denial of a promotion may be found. Id. at 401.
We believe this analysis
is applicable to the present case. Vislisel's cantankerous behavior
created tension and anger among those with whom he interviewed.
Vislisel earned a reputation among the University staff as someone
who was rude, combative, and not at all interested in interviewing
for a particular job. Vislisel's disruptive behavior wasted time,
and possibly resulted in equally qualified applicants being denied
the opportunity to interview. The district court found, and we
agree, that the Commission applied the proper law, and that its
"no probable cause" decision was not unreasonable, arbitrary
or capricious. Frank v. Iowa Department of Transportation,
386 N.W.2d 86, 87 (Iowa 1986).
We also believe Vislisel's
reliance on McDonnell Douglas Corp. v. Green, 411 U.S.
792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), is misplaced. Unlike
the present case, the McDonnell Douglas case involved the
question of whether an agency finding of no probable cause
was a jurisdictional prerequisite to raise a claim under section
703 (a)(1) of the Civil Rights Act of 1964, 42 U.S.C. Section
20OOe- 2 (a)(1). 411 U.S. at 797, 93 S. Ct. at 1822, 36 L. Ed
2d at 675. In McDonnell Douglas, the supreme court was
dealing with an adversarial case brought as a separate action
from the agency. Id. Under the McDonnell Douglas framework,
once the plaintiff establishes a prima facie case, the burden
shifts to the defendant to rebut the inference of discrimination.
Id. at 802-03, 93 S. Ct. at 1824, 36 L. Ed. 2d at 677-78.
The plaintiff still has the ultimate burden of establishing discrimination
by a preponderance of the evidence. Id. In the present
case, we are not dealing with an adversarial, contested case proceeding,
but an investigation wherein the agency is only to produce a record
upon which the agency hearing officer can make a determination
of "probable cause."
Vislisel has raised numerous other issues, but because of our holding today, and upon our consideration of these issues, we find they have no merit and we need not discuss them.
AFFIRMED.