Iowa Court of Appeals Opinion: Steven Kuhle as Fraternal Order of Eagles #568 v. Iowa Civil Rights Commission and Patricia Kelly and Michael Fishnick

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No. 18-0495

Filed April 3, 2019


















Appeal from the Iowa District Court for Dubuque County, Thomas A. Bitter, Judge.

Theappellantappealsthedistrictcourt’srulingaffirminganadverseagency decision. AFFIRMED AND REMANDED WITHDIRECTIONS.



Allan M. Richards of Richards Law Firm, Tama, for appellant.


Thomas J. Miller, Attorney General, and Katie Fiala, Assistant Attorney General, for appellee.

Robert E. Sabers of Robert E. Sabers, P.C., Dubuque, for appellees intervenors.



Considered by Doyle, P.J., and Mullins and McDonald, JJ. Considered on rehearing by Doyle, P.J., and Mullins and Bower, JJ.


DOYLE, Presiding Judge.


This is an appeal from an order on judicial review affirming an agency decision of the Iowa Civil Rights Commission (ICRC). We affirm the district court and remand with directions.1

By way of background, Patricia Kelly and Michael Fishnick each filed complaintswiththeICRCallegingtheirformeremployer,FraternalOrderofEagles #568 (Order), discriminated against them on the basis of age. The ICRC filed statements of charges with the Iowa Department of Inspections and Appeals, naming the respondents as “Dubuque Fraternal Order of Eagles #568” and Steve Kuhle, one of the Order’s trustees and the person primarily responsible for supervising the Order’s employees and recommending employment action. The administrative process proceeded from there. In her proposed decision, the administrativelawjudge(ALJ)concludedtheOrderandKuhlecommittedanunfair or discriminatory practice in terminating the employment of Fishnick, and in reducing Kelly’s hours, and in constructively discharging Kelly based on her age. The ALJ awarded Fishnick and Kelly damages and attorney fees. The Order had representeditselfbyvariousnamesindifferentcontexts,andatthehearingbefore the ALJ, the Order’s attorney and its witnesses referred to it in various ways. In the ALJ’s supplemental proposed decision, respondent’s name, as related to the Order,wasamendedto“DubuqueAerie#568oftheFraternalOrderoftheEagles, a/k/aDubuqueFraternalOrderofEagles#568,a/k/aDubuqueAssociationNo.





1 The opinion was originally filed on March 6, 2019. We granted intervenors-appellees’ petition for rehearing concerning the issue of their district court and appellate attorney fees.


568 of the Fraternal Order of Eagles, an Iowa nonprofit corporation,” and the caption of the matter was changed to reflect the amendment. Steve Kuhle, individually,remainedasanamedrespondent.Initsfinalorder,theICRCadopted theALJ’sdecisionagainsttheOrderbutreversedastoKuhle.TheICRCheldthat “Kuhle’s actions as a trustee of the non-profit organization form the basis for this FINALORDER,butheisnotpersonallyliableasanindividualduetotheimmunity provided for in Iowa Code Section 504.901(1).” The ICRC adopted the ALJ’s award of damages and attorneyfees.

Anapplicationforjudicialreviewwasfiledwiththecaption,“SteveKuhleas Fraternal Order of Eagles #568 as Petitioner vs. Iowa Civil Rights Commission.” Whypetitioner’snamewasmorphedto“SteveKuhleasFraternalOrderofEagles #568” is unknown. Kelly and Fishnick intervened. The matter was submitted to the district court on briefs. The court affirmed the final agency decision of the ICRC. “Steve Kuhle as Fraternal Order of Eagles #568, Petitioner,”appeals.

There is no entity or party known as “Steve Kuhle as Fraternal Order of Eagles#568.”SteveKuhle,theindividual,wasapartyintheadministrativeaction. Steve Kuhle was always a separate and distinct party in the proceedings. Steve Kuhle presently has no judgment against him because the ICRC, in its finalorder, held Kuhle was not personally liable as an individual. It is difficult to discern who the appellant is in this appeal. All references in the appellant’s brief to“petitioner” and “appellant” are in the singular. The appellant’s brief states, “Kuhle filed a petition for judicial review of a ruling from the Iowa Civil Rights Commission on May9,2017andfiledanoticeofappealonMarch21,2018ontherulingonjudicial review.”(Emphasisadded.)Appellant’sargumentstates,“Kuhleseekstooverturn


therulingofliabilityforhisassociationwiththeFraternalOrderofEaglesastothe ruling of a violation by the Civil Rights Commission.” (Emphasis added.) While scratching our heads on this issue, we nevertheless proceedforward.

In the first of two arguments, the appellant makes a constitutional-right-of- freedom-of-associationargument.Nosuchargumentwasraisedbeforethedistrict court. It is well established that this court does not consider issues raised for the first time on appeal. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa2002).

In the second argument, the appellant asserts Fishnick and Kelly were employees at will and “[a]s an employee at will, the employer may terminate employment for any reason.” The appellant misstates the law. At-will employees may not be terminated for reasons that are legislatively prohibited or for a reason contrary to public policy. See Rivera v. Woodward Resource Ctr., 865 N.W.2d 887, 893 (Iowa 2015); Teachout v. Forest City Cmty. Sch. Dist., 584 N.W.2d 296, 299(Iowa1998).TheIowaLegislaturehassetpublicpolicythroughtheIowaCivil Rights Act (ICRA). The ICRA legislatively prohibits unlawful discriminationagainst an employee based on the employee’s age. See Iowa Code § 216.6(1)(a) (2013). Discharge of an employee because of age is an exception to the employment-at- will doctrine. See Boyle v. Alum-Line, 710 N.W.2d 741, 749 (Iowa2006).

Our review


of an agency decision is controlled by the provisions of Iowa Code section 17A.19(10) . . . . We will apply the standards of section 17A.19(10) to determine if we reach the same results as the district court. The district court may grant relief if the agency action has prejudiced the substantial rights of the petitioner and if the agency action meets one of the enumerated criteria contained in section 17A.19(10)(a) through (n).


Renda v. Iowa Civil Rights Com’n., 784 N.W.2d 8, 10 (Iowa 2010) (footnote and internal citations omitted).

Regarding the at-will issue, the district court concluded,


Petitioner bears the burden of proof to establish that the agency’s action was not supported by substantial evidence within the record. This burden was not met. Petitioner could not establish a legitimate, non-pretexual reason for terminating Fishnick and Kelly. There is substantial evidence in the record that Petitioner discriminated against Fishnick and Kelly because of their ages. The organization is not entitled to any sort of immunity. Petitioner was served with notice of this action from the beginning, and the correct party appeared at all levels of the proceeding. Nothing in the record indicates that the agency’s application of law to the facts was irrational, illogical, or wholly unjustifiable.


Upon our review, we agree.


Intervenors-appellees Kelly and Fishnick request attorney fees. In its Final Order, the ICRC affirmed an award of $25,077 to Kelly and Fishnick for attorney feestheyincurredasofSeptember13,2016.ThedistrictcourtaffirmedtheICRC’s order,althoughitmadenospecificmentionofattorneyfees.Afterappealing,Kelly and Fishnick applied to the district court for additional attorney fees in the total amountof$32,574.75forfeesincurredthroughMarch21,2018(thedaytheyfiled their notice of appeal). The application was not ruled on. Kelly and Fishnick filed an application for additional attorney fees in the supreme court requesting a total amount of $35,987.25 through July 23, 2018, which includes the appellate work done by the attorneys. This amount is inclusive of all previously requested fees. An eight-page fee affidavit was attached detailing the services rendered by the attorneys from April 30, 2012, through July 23, 2018. The supreme court ordered that the application for attorney fees be submitted for consideration with this appeal.


AsuccessfulplaintiffundertheICRAisentitledtoreasonableattorneyfees. IowaCode§216A.15(9)(a)(8);Landalsv.GeorgeA.RolfesCo.,454N.W.2d891, 897 (Iowa 1990). This includes appellate attorney fees. Landals, 454 N.W.2d at 898-99. “The reason a successful civil rights litigant is entitled to attorney fees ‘is to ensure that private citizens can afford to pursue the legal actions necessary to advance the public interest vindicated by the policies of civil rights acts.’” Lynch v. City of Des Moines, 464 N.W.2d 236, 239 (Iowa 1990) (quoting Ayala v. Ctr. Line, Inc., 415 N.W.2d 603, 605 (Iowa1987)).

Thedistrictcourtaffirmedtheagency’sfinalorder,whichincludedanaward to Kelly and Fishnick of $25,077 in attorney fees as of September 13, 2016. “The districtcourtisconsideredanexpertinwhatconstitutesareasonableattorneyfee, andweafforditwidediscretioninmakingitsdecision.”CityofRiverdalev.Diercks, 806N.W.2d643,659(Iowa2011)(quotingGreatAmericaLeasingCorp.v.Cool

ComfortAirConditioning&Refrigeration,Inc.,691N.W.2d730,733(Iowa2005)). Thedistrictcourtdidnotabuseitsdiscretioninapprovingthatawardandweaffirm thedistrictcourt’srulinginthatregard.TherehasbeennohearingastoKellyand Fishnick’s requested attorney fees incurred after September 13, 2016, which include the district court proceedings and the appeal. Therefore, we remand for a hearing concerning an award to Kelly and Fishnick for reasonable attorney fees, including appellate attorney fees, incurred after September 13,2016.

Accordingly, we affirm and remand with directions.




State of Iowa Courts


Case Number             Case Title

18-0495                       Kuhle v. Iowa Civil Rights Commission





Electronically signed on 2019-04-03 08:54:20