Iowa Civil Rights Commission v. Dubuque Fraternal Order of Eagles #568, et al.

03/04/2016
Document Text Content: 

BEFORE THE IOWA CIVIL RIGHTS COMMISSION

IOWA CIVIL RIGHTS COMMISSION

State Law Enforcement Agency,

and

MICHAEL FISHNICK and PATRICIA

KELLY,

Complainants,

vs.

FRATERNAL ORDER OF EAGLES #568

and STEVE KUHLE.

Respondents.

IRCRCaseNos.

03-13-64009 and 03-13-63965

DIA No. 14ICRC009

No. 14ICRC010

FINDINGS OF FACT AND RULING

ON COMPLAINANTS' MOTION TO

DISMISS APPEAL

Pursuant to Iowa Admin. Code 161 - 4.23, this matter comes before the Iowa

Civil Rights Commission upon receipt of a Motion to Dismiss Appeal filed herein by

Counsel for the Complainant, the Iowa Civil Rights Commission (hereinafter

"Commission"), and joined in by Complainants Michael Fishnick and Patricia Kelly.

The Iowa Civil Rights Commission hereby denies the Motion to Dismiss the Appeal, and

remands the case for to the Executive Director, to set a hearing date before the

Commission on the appeal filed herein pursuant to Iowa Admin. Code 161-4.23(4).

FINDINGS OF FACT

Complainants, Michael Pishrdck and Patricia Kelly, filed complaints with the

Commission alleging disparate treatment in employment on the basis of age and sex for

Complainant Fishniclc, and age for Complainant Kelly. After a probable cause finding by

1

the Commission and filing of a Statement of Charges, this matter was referred to the

Department of Inspections and Appeals for a contested case hearing. A healing in this

matter was conducted before the Honorable Administrative Law Judge, Laura E.

Lockard, on March 10, 2015. A Proposed Decision in these matters was issued by

Administrative Judge Lockard on September 2, 2015, and copies of these rulings were

distributed by first class mail to the Respondent and Complainants Fishnick and Kelly,

and by first class mail and email notification to the Complainant's Attorney, Mr. Sobers,

and Respondent's Attorney, Mr. Richards, said notices being sent on September 2,2015.

(Complainant, Iowa Civil Rights Commission Motion to Dismiss, Exhibit 1 and

distribution list Proposed Decision entered September 2, 2015). The Commission did not

send notice of the Proposed Decision by certified mail to Respondents, nor was it

personally served upon them.

On October 6, 2015, Respondents' counsel emailed aa Appeal of the Commission's

Proposed Decision of this matter to Administrative Law Judge Laura Lockard and

Commission Staff Attorney, Ben Flickinger, and mailed the Appeal to these same parties

and Complainants' counsel, Robert Sabers. (Respondents' emailed and mailed Appeals

dated 10/6/15). The Commission received the mailed Appeal on October 9, 2015 which

was addressed to Ben FUckinger. (Respondents' mailed Appeal and envelope). The

Commission's Executive Director sent an Acknowledgment of Appeal to the parties

indicated receipt of Respondents appeal. (Acknowledgment of Appeal).

On October 22, 2015, a Motion to Dismiss Respondents appeal as untimely was

filed by the Commission's counsel and was joined by Complainants Fishnick and Kelly

by motion filed on October 26, 2015. (Fiala, Motion to Dismiss Untimely Appeal and

Sabers, Motion to Dismiss Appeal). On October 13, 2015, an Order Setting Briefing

Schedule and Oral Argument for the motion to appeal was issued by the Commission's

Executive Director setting the hearing for March 4 ,2016 and requiring briefs to be filed

by February 15,2016. (Order Setting Briefing Schedule and Oral Argument). On

February 19, 2016, the Commission's Executive Director issued and served an order

requiring Respondent to file a resistance to the Motion to Dismiss by February 26, 2016

or the motion would be granted without hearing. Respondents filed its Resistance to the

Motion to Dismiss on February 24, 2016. (Order Regarding Appeal 2/19/2016,

Resistance to Motion to Dismiss 2/24/2016).

FINDHSTGS OF LAW

Iowa Code Sec. 17A.16 requires the parties in a contested case to be promptly

notified of the proposed decision by delivery of a copy of the proposed order in the

manner provided by Iowa Code Sec. 17A. 12, subsection 1 - which requires notice by

personal service, as in civil actions, or certified mail, return receipt requested. Iowa Code

Sec. 17AJ2(1) also allows delivery of notice may be provided by other means set out in

the agency's rules. The rules of the Commission require that a copy of a proposed

decision be delivered to each of the parties by certified mail and a copy be sent to counsel

and the Commission. lowaAdmin. Code 161-4.22(2). As of the date of this hearing, no

proof has been received that a copy of the Proposed Decision herein was mailed by the

Commission to Respondents by certified mail as required by Iowa Admin. Code 161-

4.22(2) or alternatively provided to the parties by personal service or certified mail return

receipt requested as required by Iowa Code Sees, 17A.16 and 17A.12(1). The evidence

does show that notice of the propose decision was mailed via standard mail to

Respondents and mailed via standard mail and email to counsel for the Respondents.

(Proposed Decision p. 23 -distribution list; Motion to Dismiss Appeal, Exhibit 1 -

9/2/2015 email Van Gundyto parties).

The rules of the Commission require that a party appeal a proposed decision of the

Commission within 30 days after the issuance of the proposed decision. Iowa Admin.

Code 161-4.23(1). Actual receipt of notice of the proposed order by Respondents'

counsel is shown in this matter by counsel's sending their Notice of Appeal to the

Commission on October 6,2015. (Respondents' emailed and mailed Appeal). The

essential issue in this matter is whether the 30-day time period to appeal the proposed

order from the date the order was issued is tolled in any way by the failure to notice the

Respondents of the proposed decision by certified mail.

We find that it would be unreasonable for the Commission to enter a dismissal for

Respondents' filing an untimely appeal of the proposed decision under the Commission's

rules where the Commission has failed to follow its own rule to provide Respondents

notice of the same proposed decision by certified mail or the requirement under Iowa

Code sections 17A.16 and 17A.12(1) and that such decisions be "promptly" notified by

personal service or certified letter^ return receipt requested. Such dismissal would be the

type of action subject to court reversal under Iowa Code Section 17AJ9(10)(c)

(providing reversal of agency action taken without following prescribed procedure).

WHEREFORE, the Commission hereby denies the Motion to Dismiss the Appeal

filed by the Complainants in this matter. Appeal of this matter shall be scheduled before

the Commission at a future meeting, to be set by a separate order by the Executive

Director.

ORDER

IT IS THEREFORE ORDERED that Complainants' Motion to Dismiss the Appeal in this

matter is denied.

Dated this 4th day of March, 2016.

Angela Williams

CHAIR, IOWA CIVIL RIGHTS COMMISSION (See separate concurrence)

Patricia Lipski

COMMISSIONER

Thomas Conley (See separate dissent)

COMMISSIONER

Mathew Hosford (not present)

COMMISSIONER 

Lawrence Cunninham

COMMISSIONER

Lily LiJun Hou (not present)

COMMISSIONER 

Doug Oelschlaeger

COMMISSIONER

Copy by US. mail to:

Allan M. Richards

P.O. Box 448

Tama, Iowa 52339

Robert Sabers

3003 Asbury Road

Dubuque, Iowa 52001

Katie Fiala

Assistant Iowa Attorney General ,

Civil Rights Section

Hoover State Office Bldg., 2Kd floor

Des Moines, Iowa 50319

BEFORE THE IOWA CIVIL RIGHTS COMMISSION

IOWA CIVIL RIGHTS COMMISSION

State Law Enforcement agency,

and

MICHAEL FISHNICK and PATRICIA

KELLY,

Complainants,

vs.

FRATERNAL ORDER OF EAGLES #568

and STEVE KUHLE.

Respondents.

IRCR Case Nos.

03-13-64009 and 03-13-63965

DIAN0.14ICRC009

N0.14ICRC010

CONCURRENCE IN RESULT

BY CHAIRPERSON WILLIAMS

DENIAL OF MOTION TO DISMISS

Comes now Iowa Civil Rights Commission Chairperson Angela Williams, and by

my signature hereon, does hereby join in the result in denial of the Motion to Dismiss

reached by the Commission in this matter, but do not join in the written Finding of Fact

and Ruling on the Motion to Dismiss Appeal.

Dated this 4th day March, 2015

Angela Williams

Chair, Iowa Civil Rights Commission

Copy by U.S. mail to:

Allan M. Richards - Robert Sabers

P.O. Box 448 3003 Asbury Road

Tama, Iowa 52339 Dubuque, Iowa 52001

Katie Fiala

Assistant Iowa Attorney General

2Ed Floor, Hoover State Office Bldg.

Des Moines, Iowa 50319

BEFORE THE IOWA CIVIL RIGHTS COMiVItSSION

IOWA CIVIL RIGHTS COMMISSION

State Law Enforcement Agency,

and

MICHAEL FiSHNiCK and PATRICIA

KELLY.

Complainants,

vs.

FRATERNAL ORDER OF EAGLES #568

and STEVE KUHLE.

Respondents.

IRCR Case Nos.

03-13-64009 and 03-13-63965

DIA No. 14ICRC009

No.UICRCOIO

DISSENT IN RESULT

BY COMMISSIONER CONLEY

IN DENIAL OF MOTION TO DISMISS

Comes now Iowa Civil Rights Commissioner, Tom Conley, and by my signature

below do hereby dissent from the decision of the Commission. I would vote to grant the

Motion to Dismiss the Appeal filed by the Complainants in this matter as I find that the

Respondents received actual notice of the Proposed Decision in this matter and failed to

file their Appeal in. a timely manner. Dated this 4th day of March, 2015.

Tom Conley

Commissioner, Iowa Civil Rights Commission

Copy by U.S. mail to:

Allan M. Richards Robert Sabers

P.O. Box 448 3003 Asbury Road

Tama, Iowa 52339 Dubuque, Iowa 52001

Katie Fiala

Assistant Iowa Attorney General

2nd Floor, Hoover State Office Bldg.

Des Moines, Iowa 50319