Steven Kuhle as Fraternal Order of Eagles 568 v. Iowa Civil Rights Commission and Patricia Kelly and Michael Fishnick

IN THE COURT OF APPEALS OF IOWA

No. 18-0495
Filed April 3, 2019

STEVEN KUHLE AS FRATERNAL ORDER OF EAGLES #568,
Petitioner-Appellant,

vs.

IOWA CIVIL RIGHTS COMMISSION,
Respondent-Appellee.

and

PATRICIA KELLY and MICHAEL FISHNICK,
Intervenors-Appellees.
________________________________________________________________

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

Judge.

The appellant appeals the district court’s ruling affirming an adverse agency

decision. AFFIRMED AND REMANDED WITH DIRECTIONS.

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.
2

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

complaints with the ICRC alleging their former employer, Fraternal Order of Eagles

#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

administrative law judge (ALJ) concluded the Order and Kuhle committed an unfair

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

represented itself by various names in different contexts, and at the hearing before

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, was amended to “Dubuque Aerie #568 of the Fraternal Order of the Eagles,

a/k/a Dubuque Fraternal Order of Eagles #568, a/k/a Dubuque Association No.

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.
3

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, remained as a named respondent. In its final order, the ICRC adopted

the ALJ’s decision against the Order but reversed as to Kuhle. The ICRC held that

“Kuhle’s actions as a trustee of the non-profit organization form the basis for this

FINAL ORDER, but he is not personally liable as an individual due to the immunity

provided for in Iowa Code Section 504.901(1).” The ICRC adopted the ALJ’s

award of damages and attorney fees.

An application for judicial review was filed with the caption, “Steve Kuhle as

Fraternal Order of Eagles #568 as Petitioner vs. Iowa Civil Rights Commission.”

Why petitioner’s name was morphed to “Steve Kuhle as Fraternal Order of Eagles

#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.” Steve Kuhle, the individual, was a party in the administrative action.

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 final order,

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

May 9, 2017 and filed a notice of appeal on March 21, 2018 on the ruling on judicial

review.” (Emphasis added.) Appellant’s argument states, “Kuhle seeks to overturn
4

the ruling of liability for his association with the Fraternal Order of Eagles as to the

ruling of a violation by the Civil Rights Commission.” (Emphasis added.) While

scratching our heads on this issue, we nevertheless proceed forward.

In the first of two arguments, the appellant makes a constitutional-right-of-

freedom-of-association argument. No such argument was raised before the district

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 (Iowa 2002).

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 (Iowa 1998). The Iowa Legislature has set public policy through the Iowa Civil

Rights Act (ICRA). The ICRA legislatively prohibits unlawful discrimination against

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 (Iowa 2006).

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).
5

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

fees they incurred as of September 13, 2016. The district court affirmed the ICRC’s

order, although it made no specific mention of attorney fees. After appealing, Kelly

and Fishnick applied to the district court for additional attorney fees in the total

amount of $32,574.75 for fees incurred through March 21, 2018 (the day they filed

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.
6

A successful plaintiff under the ICRA is entitled to reasonable attorney fees.

Iowa Code § 216A.15(9)(a)(8); Landals v. George A. Rolfes Co., 454 N.W.2d 891,

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 (Iowa 1987)).

The district court affirmed the agency’s final order, which included an award

to Kelly and Fishnick of $25,077 in attorney fees as of September 13, 2016. “The

district court is considered an expert in what constitutes a reasonable attorney fee,

and we afford it wide discretion in making its decision.” City of Riverdale v. Diercks,

806 N.W.2d 643, 659 (Iowa 2011) (quoting GreatAmerica Leasing Corp. v. Cool

Comfort Air Conditioning & Refrigeration, Inc., 691 N.W.2d 730, 733 (Iowa 2005)).

The district court did not abuse its discretion in approving that award and we affirm

the district court’s ruling in that regard. There has been no hearing as to Kelly and

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.

AFFIRMED AND REMANDED WITH DIRECTIONS.