Opinion
No. 3-766 / 03-0700
Filed October 29, 2003
Appeal from the Iowa District Court for Polk County, Ronald H. Schechtman, Judge.
Plaintiff appeals from the district court order granting the defendant's motion for summary judgment. AFFIRMED.
Donna M. Schauer, Des Moines, for appellant.
Elizabeth Kennedy and Nathan Overberg of Ahlers Cooney, P.C., Des Moines, for appellee.
Considered by Sackett, C.J., and Huitink and Eisenhauer, JJ.
Kelin Eric Shoop alleges he was constructively discharged from his employment with Drake University in violation of public policy. The district court granted summary judgment in favor of Drake. Has Shoop stated a claim cognizable in Iowa? We concur with the district court that he has not.
The undisputed facts were characterized by the district court as follows:
Shoop was hired by Drake as a security officer in November 1997. He was promoted to patrol officer in 1998 and further promoted to a shift sergeant position in January 2000. Shoop was reassigned to a senior patrol officer position on July 15, 2002. That demotion was only one rank, and resulted in Shoop's wage benefits being reduced from $13.60 per hour to $12.73 per hour, with no other lost benefits except to the extent that the latter may be based on gross wages.
Shoop was verbally supportive of a subordinate officer, Nicholas Lloyd, in the latter's actions during a Drake Relays incident (street painting, a popular opening event) which occurred on April 20, 2002. An investigation resulted in Lloyd's termination on July 16, 2002 (the parties agree on this date).
Shoop resigned on September 4, 2002.
We review rulings on motions for summary judgment for errors at law. Sain v. Cedar Rapids Cmty. Sch. Dist., 626 N.W.2d 115, 121 (Iowa 2001). The record before the district court is reviewed to determine whether a genuine issue of material fact existed and whether the district court correctly applied the law. Id. The court must view the facts in the light most favorable to the party resisting the motion and must consider every legitimate inference that can be reasonably deduced from the record in favor of the resisting party. Phillips v. Covenant Clinic, 625 N.W.2d 714, 717-18 (Iowa 2001).
An action for the tort of wrongful discharge exists when a protected activity has been recognized through the implementation of an underlying public policy that would be undermined if an employee were discharged from employment for engaging in that activity. Davis v. Horton, 661 N.W.2d 533, 535 (Iowa 2003). In order to succeed on his claim, Shoop must establish all of the following factors:
(1) The existence of a clearly defined public policy that protects an activity.
(2) This policy would be undermined by a discharge from employment.
(3) The challenged discharge was the result of participating in the protected activity.
(4) There was lack of other justification for the termination.
See id. We do not limit the public-policy exception to at-will employment relationships to the mandates of specific statutes, but may imply a prohibition against termination if the policy basis for so doing clearly appears from other sources. Id. at 536. In so doing, however, we proceed cautiously and will only extend such recognition to those policies that are well recognized and clearly defined. Id.
In Fitzgerald v. Salsbury Chemical, 613 N.W.2d 275, 284-89 (Iowa 2000), our supreme court examined whether opposing the wrongful termination of a co-employee and intending to provide truthful testimony in a legal proceeding were activities protected by public policy. The court determined the plaintiff's actions in opposing the wrongful termination of his co-employee were not expressly protected by statute and could notbe inferred from the language of the statutes to establish the broad public policy suggested. Fitzgerald, 613 N.W.2d at 285. However, the court concluded public policy in Iowa prevents discharge of an employee for giving or intending to give truthful testimony in a legal proceeding. Id. at 285-86. Shoop relies on Fitzgerald in arguing he was discharged for intending to give truthful testimony in a legal proceeding.
In his amended petition, Shoop alleged:
30. The constructive termination of Petitioner occurred when he was demoted due to his verbal support of Mr. Lloyd and his expressed verbal statements that he would testify on behalf of Mr. Lloyd if it became necessary.
. . .
34. Petitioner was terminated due to his outspoken support of Mr. Lloyd's response to the arrest of Phillipe Joseph and his willingness to speak on his behalf.
. . .
38. While the Panel was undergoing its investigation, Drake Security personnel were told they could not talk about the incident to the press or anyone else.
39. Petitioner continued to speak freely.
40. Based on this, Drake demoted Petitioner as a Patrol Sergeant security officer, reduced his pay, benefits and seniority status, subjected him to a hostile work environment and constructively forced him to quit.
In the affidavit Shoop prepared in conjunction with his resistance to Drake's motion for summary judgment, Shoop alleges the following:
10. I have always openly supported Mr. Lloyd and his actions at the Street Painting event, even after he was fired.
. . .
17. I continued to verbally support Mr. Lloyd and verbally expressed my opposition to Drake's actions of placing Mr. Lloyd on desk duty and subsequent termination of Mr. Lloyd.
18. I verbally attempted to assist Mr. Lloyd in getting his patrol position back. I spoke to Chief Hanson and Captain personally, and addressed the issue with President Maxwell at the meeting held with the Security Department. I specifically told Maxwell at the meeting that Mr. Lloyd was one of my best officers and that I needed him back out on patrol.
. . .
20. Throughout this entire time, I made it known at the Security Department that I would testify on Mr. Lloyd's behalf if it became necessary.
. . .
27. I believe I was demoted because I continued to verbally fight for Mr. Lloyd and made it known that I would stand by him and testify on his behalf.
We conclude Shoop's claim is more akin to a claim of discharge for opposing the termination of a co-employee, which was not recognized as a protected activity in Fitzgerald. To the extent Shoop contends he was constructively discharged based on statements he made indicating he would testify on Lloyd's behalf, this case is distinguishable from Fitzgerald. As the district court noted,
[U]nlike Fitzgerald (where the court reversed an order of summary judgment), there was nothing overt on the part of Drake to suggest or infer that Drake expected Shoop to take its side (whatever that was), or that he needed to choose which side he supported, or that Drake suggested, or even hinted that Shoop should tailor his testimony to its interests.
There was no pending or threatened litigation between Lloyd and Drake when Shoop was demoted. Based on these facts, we cannot conclude Shoop was constructively discharged for giving or intending to give truthful information in a legal proceeding. Accordingly, Shoop has not identifieda clearly defined public policy that protects any activity in which he engaged.