IN THE SUPREME COURT
ROBERT ANNEAR, Appellant,
STATE OF IOWA and IOWA DEPARTMENT OF PUBLIC DEFENSE, Appellees.
Filed February 17, 1988
Appeal from the Iowa District Court for Polk County, George W. Bergeson, Judge.
Grant of summary judgment in statutory action for wrongful discharge. REVERSED AND REMANDED.
Thomas Mann, Jr., Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Scott M. Galenbeck, Assistant Attorney General, for appellees.
Considered by McGiverin, C.J., and Harris, Larson, Carter and Neuman, JJ.
The trial court dismissed
this civil rights action upon finding it lacked subject matter
jurisdiction. In this appeal challenging that ruling we are not
called upon to consider the merits or viability of the claim.
Our review is narrowly limited to the challenged ruling, hence
we address only whether, as the district court held, the action
was barred because review was not sought within 180 days. We reverse
and remand because on this record we cannot hold it was barred.
The plaintiff Robert Annear
worked as a custodian for the Iowa Department of Public Defense
at Camp Dodge from 1972 until February 21, 1981. Annear had back
problems which became so aggravated by 1981 that he was no longer
able to work. He was awarded permanent disability benefits on
June 29, 1981. On that same day the department decided to "separate"
Annear from his job due to his disability. Following successful
back surgery, Annear appeared at Camp Dodge and presented an unsigned
release card from his physician and requested reinstatement.
Predictably, there are two
versions of the evidence at this point, Annear's and the department's.
According to the department, Annear was in no way led to believe
he would be reinstated to his old position. Rather he was told
he would be considered, along with others, for a new position.
Annear's version suggests
there were assurances of reinstatement. According to Annear the
department told him that further evidence of physical recovery
would be needed before he could be considered for "reinstatement"
and suggested he obtain a signed release from his physician. The
department later wrote Annear to say that a signed physician's
release would make him eligible for reinstatement to his former
class but would not automatically entitle him to reinstatement.
On December 10, 1981, Annear's
physician signed a release, stating he could return to work on
January 4, 1982. On that date he attempted to do so but was told
the State did not have funds to reinstate him. Annear persisted,
returning often to Camp Dodge in his attempt to get his job back.
On July 26, 1982, Annear discovered that other persons had been
hired in his place. On August 5, 1982, he filed a discrimination
complaint with the Iowa Civil Rights Commission, claiming he had
been denied reinstatement because of his disability. The commission
issued a right-to-sue letter.
On August 5, 1983, Annear
filed this action, claiming disability discrimination, contract
violation, and wrongful discharge.
I. The trial court dismissed
Annear's action based on a finding Annear did not file his complaint
with the Iowa Civil Rights Commission within 180 days of the claimed
violation, a condition precedent for such an action under Iowa
Code section 601A. 15(12). United Air Lines, Inc. v. Evans,
431 U.S. 553, 555 n.4, 97 S. Ct. 1885, 1887 n.4, 52 L. Ed. 2d 571,
576 n.4 (1977). Annear brought this appeal to challenge the dismissal.
To support the trial court
ruling, the State contends all claimed discriminatory events occurred
before February 5, 1982 (180 days prior to when the complaint
was filed). The State claims only four dates are implicated:
June 29, 1981: Annear qualified for long-term disability benefits and was then "separated" from his employment.
November 19, 1981: Annear first requested reinstatement and was refined. The State then requested further medical evidence.
November 25, 1981: The State gave written refusal to reinstate Annear.
January 4, 1982: The State gave second refusal to reinstate.
The State insists the November
25 and January occurrences (both of which occurred before February
5, 1982) amounted to clear rejections of Annear's claim to reinstatement.
Annear believes the discrimination
was ongoing and continuous until July 26, 1982, well within the
180-day period. According to Annear he sought reinstatement every
week until July 26, when he learned other persons had been hired
for his job. He contends each weekly rejection amounted to discrimination
because of his disability.
II. Iowa Code chapter 601A
is patterned after the federal act. A similar 180-day limitation
period is to be found in 42 U.S. C. section 20OOe-5(e). Interpretations
of the federal act are instructive. Hubbard v. State, 163
N.W.2d 904, 909 (Iowa 1969). Under the federal cases there is
a basis for Annear's legal theory.
An employee who charges
an employer with continuously maintaining an illegal employment
practice may file a charge of discrimination until 180 days after
the last instance of that practice. Gonzalez v. Firestone Tire
& Rubber Co., 610 F.2d 241, 249 (5th Cir. 1980); see
also Satz v. ITT Financial Corp., 619 F.2d 738, 744 (8th Cir.
Not every act by an employer, not even every act which might precipitate an employee's complaint, will toll the 180-day period. Acts which are considered "discrete" will trigger the running of the 180-day period. Dumas v. Town of Mount Vernon, Ala., 612 F.2d 974, 975 (5th Cir. 1980). The emphasis is not on mere continuity; the critical question is whether any present violation exists. Evans, 431 U.S. at 558, 97 S. Ct. at 1889, 52 L. Ed. 2d at 578. Failure to promote is viewed as ongoing, while failure to hire is viewed as a discrete act. Dumas, 612 F.2d at 977.
Central to the State's position regarding the 180-day limitation is the special nature of a discharge. A severing of the employment relationship ordinarily concludes a discrimination against the severed employee and activates the time period for filing charges with the commission. Laffey v. Northwest Airlines, Inc., 567 F.2d 429, 473 (D.C. Cir. 1976). But the principle cannot be summarily applied where, as here, it is disputed whether a discharge has occurred.
Discussing 1972 federal
legislation which extended the filing requirement from 90 to 180
days, the eighth circuit court quoted sponsors of the bill-.
Existing case law which [h]as determined that certain types of violations are continuing in nature, thereby measuring the running of the required time period from the last occurrence of the discrimination and not from the first occurrence is continued, and other interpretations of the courts maximizing the coverage of the law are not affected. It is intended by expanding the time period for filing charges in this subsection that aggrieved individuals, who frequently are untrained laymen and who are not always aware of the discrimination which is practiced against them, should be given a greater opportunity to prepare their charges and file their complaints and that existent but undiscovered acts of discrimination should not escape the effect of the law through a procedural oversight...
Satz, 619 F.2d at 744 (quoting 118 Cong. Roe. 7167 (1972)).
Thus, when considering whether
the "continuing violation" theory applies:
the courts are not really concerned with continuity as much as they are with assessing the employment situation from the layperson's viewpoint. The focus is on what event, in fairness and logic, should have alerted the average layperson to act to protect his rights, or when he should have perceived that discrimination was occurring.
Dumas, 612 F.2d at 977 (quoting Elliott
v. Sperry Rand Corp. 79 F.R.D. 580, 585 (D. Minn. 1978)).
We construe the procedural requirements of Iowa Code section 601A.I5(12)
liberally in view of its beneficial purposes in exposing unlawful
discrimination. See Smith v. American President Lines, Inc.,
571 F.2d 102, 105 (2d Cir. 1978).
We hold that Annear can
urge the "continuing violation" theory for claimed violations
of Iowa Code section 601A.6(l)(a). The question then becomes when
would Annear, as an average layman, perceive that discrimination
was occurring. The 180-day period runs from that date. But this
question was not considered by the district court. And, because
the matter arose on disputed facts incident to a summary judgment
motion, there was no way to answer it.
Annear was denied the right
to present his version of what occurred. The grant of summary
judgment must be reversed and the case remanded for further proceedings.
III. Annear also assigns
error in the trial court's refusal to grant his own motion for
summary judgment against the State. He contends the evidence indicating
discrimination against him was uncontroverted and he was therefore
entitled to judgment as a matter of law. See Iowa R. Civ.
P. 237(c). Without suggesting there is any merit in the assignment
we note the issue was not addressed by the trial court. No motion
under Iowa rule of civil procedure 179(b) was filed. Hence the
question was not preserved for review. State Farm Mut. Auto.
Ins. Co. v. Pflibsen, 350 N.W.2d 202, 206-07 (Iowa 1984).
In Annear's resistance to
the State's motion to dismiss and strike he stated he was entitled
to recover on a theory of wrongful discharge in violation of public
policy. We think this theory was not sufficiently suggested in
Annear's petition. See Shill v. Careage Corp., 353 N.W.2d
416, 420-21 (Iowa 1984) (theories will not be reviewed which were
not presented to and considered by the trial court).
The judgment of the trial
court is reversed and the case is remanded for further proceedings.
Annear may present an attempt to establish a factual basis for
his continuing violation theory. The 180-day limitation period
is to run only from the date on which he, as an average layperson,
should have perceived that discrimination was occurring. Annear's
other assignments are, for the reasons indicated, without merit.
Tax costs twenty-five percent to Annear and seventy-five percent to the State.
REVERSED AND REMANDED.