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Tina Hessel vs. City of DBQBarry A. Lindahl, Esq. Corporation Counsel Suite 330, Harbor View Place 300 Main Street Dubuque, Iowa 52001-6944 (563) 5&3-4113 office (563) 583-1040 fax balesq@cityofdubuque.org Mayor Roy Buol and Members of the City Council City Hall -City Clerk's Office 50 West 13th Street Dubuque,lA 52001 January 10, 2007 RE: Tina Hessel vs. City of Dubuque, et al. Dear Mayor and Council Members: THF. CITV OF ( l DU~3 `- UE The Iowa District Court for Dubuque County has dismissed all of the claims made by Tina Hessel against the City of Dubuque, City Manager Michael C. Van Milligen, Personnel Manager Randy Peck and Building Services Manager Rich Russell. A copy of the District Court's January 8, 2007 Order is enclosed. ly, BAL:tIs Enclosure ~Barr~(/A. Lindahl, Esq. City Attorney cc: Michael C. Van Milligen, City Manager Cindy Steinhauser, Assistant City Manager Randy Peck, Personnel Manager Rich Russell, Building Services Manager Service People Integrity Responsibility Innovafion Teamwork IN THE DISTRICT COURT OF IOWA, IN TINA MARIE HESSEL, Plaintiff, vs. CITY OF DUBUQUE, RANDY PECK, MICHAEL VAN MILLIGAN, and RICH RUSSELL, Defendants. AND FOR DUBUQUE COUNTY r, r-' ~~ o E ~: . ~ ~ v ~~ CASE NO. CVCV054433 fio ~ ~~ ~ ~: ORDER ~ ~ ~ `~`~` , , ~'~' 1 n ~ ~ G ~~ ~ This matter was heard November 28, 2006. The plaintiff appeared personally and represented herself. The defendants appeared through Attorney Les Reddick. SELF-REPRESENTATION Whenever litigants choose to represent themselves, the presiding judge is in a difficult position. Trial judges want to be supportive and understanding of the problems litigants face. They like to make the litigation process as painless and as understandable as possible. Nevertheless, there are significant limitations on how judges can relate to self-represented litigants. First of all, it is ethically impossible for judges to give legal advice to self- represented litigants and still honor the obligation to be neutral and unbiased. This limitation is hard for many pro se parties to understand. Their concept is that the judge will explain to them what they need to be doing and how to get it done. Self-represented litigants seldom appreciate that, if a judge gives them legal advice, the judge has taken sides and is no longer neutral. Second, courts don't utilize a deferential standard for persons representing themselves. This means that the same rules and the same standards apply to pro se litigants as to those who are represented by counsel. N.D.R. v. R.J.C., 665 N.W.2d 442 (Iowa App. 2003); Colvin v. Story County Board of Review, 653 N.W.2d 345 (Iowa 2002); Haze v. Haze, 612 N.W.2d 817 (Iowa App. 2000); Hill v. McCartney, 590 N.W.2d 52 (Iowa App. 1998). Litigants who represent themselves are at a distinct disadvantage. They run a real risk of losing because of procedural failings that occur out of ignorance of the rules. MOTION TO STRIKE JURY DEMAND On October 27, 2006, the plaintiff filed a jury demand. The defendants subsequently sought dismissal of that jury demand on the basis that it was not timely under the Iowa Rules of Civil Procedure. At the time of hearing, the plaintiff stated that she had had an opportunity to read the Rules of Civil Procedure and agreed that her demand was not timely. The motion to strike jury demand is granted. This case will be tried to the Court. The plaintiffs jury demand is stricken. MOTION FOR SUMMARY JUDGMENT LAW OF SUMMARY JUDGMENT Motions for summary judgment are authorized by Iowa R. Civ. P. 1.981- 1.983. The summary judgment procedure is intended to permit a party to pierce allegations of fact in the pleadings and to obtain relief by summary judgment where the facts set forth in detail in affidavits, depositions, interrogatories and admissions on file at the time of hearing show that there are no genuine issues of fact to be tried. Drainage District No. 119, Cfay County v. Incorporated City of Spencer, 268 N.W.2d 493 (1978). The purpose of a motion for summary judgment is to avoid a useless trial which results in unnecessary delay and expense. David v. Comito, 204 N.W.2d 607 (1973). The burden is on the party moving for summary judgment to show the absence of any genuine issue of material fact. Knapp v. Simmons, 345 N.W.2d 118 (1984). An issue of fact is material if it might affect the outcome of the litigation given the applicable law. Genuine means the evidence is such that a reasonable jury could return a verdict for the non-moving party. Hall v. Barrett, 412 N.W.2d 648 (1987). Parties moving for summary judgment are permitted to support the motion with supporting affidavits. Iowa R. Civ. P. 1.981(1) and (2). The motion must be supported with a short and concise statement of facts as to which there is no genuine issue. Iowa R. Civ. P. 1.981(8). The statement is to draw the Court's attention to facts for which it is asserted there is no dispute. Diamond Prods. v. Skipton Painting & Insulat., 392 N.W.2d 137 (1986). Parties resisting the motion must do so within fifteen days. The resistance must include a statement of disputed facts. Iowa R. Civ. P. 1.981(3). The Court is to examine the record in the light most favorable to the party opposing the motion for summary judgment to determine whether the movant has met its burden of proof. Sandbulte v. Farm Bureau Mutual Insurance Company, 343 N.W.2d 457 (1984). A fact question is generated if reasonable minds can differ on how factual issues should be resolved. (Knapp v. Simmons, 345 N.W.2d 118 (1978)) or if reasonable minds can draw different inferences from undisputed facts. Steinbach v. Meyer, 412 N.W.2d 917 (1987). However, in order to successfully resist a motion for summary judgment, it is necessary for the resisting party to set forth specific evidentiary facts showing the existence of a material fact. The resisting party may not rely on mere allegations or denials in the pleadings (Liska v. First Nations/ Bank in Sioux City, 310 N.W.2d 531 (1981)) or upon legal conclusions. AMCO Ins. v. Stammer, 411 N.W.2d 709 (1987). In addition, factual conclusions and inferences the non- moving party seeks to rely on must be reasonable in light of the evidence and more than speculation. Steinbach v. Meyer, 412 N.W.2d 917 (1987). Ordinarily, the issues of negligence, contributory negligence and proximate cause should not be susceptible to summary adjudication. These issues are normally best resolved by trial in the ordinary manner. Schermer v. Mueller, 380 N.W.2d 684 (1986). UNDISPUTED FACTS Tina Hessel is the proprietor of a cleaning services business called "Maid For You." She entered into a written contract with the City of Dubuque for cleaning services in January 2005. One of the provisions in the agreement allows the City of Dubuque to terminate the contract for any reason with five days' written notice. At the time of contracting, Ms. Hessel had four employees: two Caucasians and two persons of color. Ms. Hessel believes that in the weeks after the contract was signed and she began providing cleaning services, the City of Dubuque, through its employees, made statements and engaged in actions founded in racial discrimination because of the skin color of two of her employees. On February 10, 2005, she filed a complaint with the Dubuque Human Rights Commission based on the conduct of city employees. On March 21, 2005, city staff asked the Dubuque City Council for authorization to terminate the contract with Maid For You and hire two part-time employees to do the cleaning for the city offices. The summary judgment record does not reflect what action the city council took. Presumably, authorization was given. Without regard to what action was taken, Maid For You continued to provide cleaning services pursuant to its contract and engaged in negotiations with the City of Dubuque for a new contract. At the same time, Ms. Hessel was involved in mediation discussions with the city concerning her complaints about the discriminatory conduct and statements of certain city staff members. Ms. Hessel was not awarded a new contract with the City of Dubuque for cleaning services. In addition, she did not reach a resolution satisfactory to her concerning her complaints about racial discrimination. On June 30, 2005, she filed a complaint against the city with the Iowa Civil Rights Commission. September 21, 2005, the City of Dubuque sent Ms. Hessel a written memo generated by Rich Russell, building services manager, telling her that her cleaning services would not be needed after September 30, 2005. In December 2005 the Iowa Civil Rights Commission denied Ms. Hessel's claim. The Civil Rights Commission issued aright-to-sue letter. In February 2006 Ms. Hessel filed a document titled "Civil Rights Complaint" with the Dubuque County Clerk's Office for the Iowa District Court. The filing was titled as being in the United States District Court for the District of Iowa, First District. The defendants filed a motion to recast the petition. The motion was granted and, on March 22, 2006, the plaintiff filed a recast petition. In her recast petition, she states that on January 17, 2005, her company, Maid For You, was hired to provide cleaning services for the City of Dubuque. She then recites a series of factual allegations concerning happenings with the City of Dubuque. She ends by alleging that, in retaliation for reporting the City of Dubuque to the Dubuque Human Rights Commission, the city terminated Maid For You as the cleaning service for the city. She asserts that her constitutional rights, privileges and immunities have been violated and that, in addition, the city had breached its contract, committed fraud, intentionally inflicted emotional distress and engaged in retaliatory discrimination. October 25, 2006, the city filed its motion for summary judgment. It seeks dismissal of all claims against the city and its employees filed by the plaintiff. The plaintiff continues to be self-represented. She promptly filed an answer to the motion for summary judgment asking that the Court enter judgment on her behalf against the defendants. She filed an associated document titled as a brief and request for jury trial. She did not file a statement of facts, although her brief contains numerous factual assertions. CONCLUSIONS OF LAW AND ANALYSIS Ms. Hessel asserts that she made a contract with the city to provide cleaning services. After entering into the contract, the city found out that two of Ms. Hessel's employees were black. She argues that the city objected to these employees because of the color of their skin and that it treated them differently. She filed a complaint with the Dubuque Human Rights Commission and the Iowa Civil Rights Commission based on the city's conduct. She argues that the city retaliated against her for filing such complaints by terminating her contract for cleaning services. Her recast petition alleges breach of contract, fraud, intentional infliction of emotional distress, civil rights violations and retaliation discrimination. The petition asserts no factual basis for any claim other than the City of Dubuque discriminated against her for having black employees and retaliated against her for filing a civil rights complaint by terminating her cleaning contract. Iowa is a notice pleading state. Plaintiffs are not required to plead specific theories but need only inform a defendant of the incident out of which the claim arose and of the general nature of the action. United Fire & Cas. Co. v. Northwind Developers, L.L.C., 666 N.W.2d 620 (Iowa App. 2003). However, when a party pleads specific theories they may be limited to their pleadings. Tigges v. City ofAmes, 356 N.W.2d 503 (Iowa 1984). The defendants' motion for summary judgment tests the factual sufficiency of the record for the claims specified by the plaintiff. Breach of Contract In order to recover on a breach of contract claim, a plaintiff must prove the following essential facts: 1. The parties were capable of contracting. 2. The existence of a contract. 3. The consideration. 4. The terms of the contract. 5. The plaintiff has done what the contract requires. 6. The defendant has breached the contract. 7. The amount of any damage defendant has caused. The parties agree as to elements one through five. As to element six, they agree that the contract could be ended by the city at any time with written notice. The plaintiffs theory is that the contract was terminated when a city staff member appeared before the city council on March 21, 2005 seeking authorization to terminate the contract. No notice was given to her of the request. However, the undisputed facts are that, whatever action the city council may have taken on March 21, 2005, the plaintiff continued to provide cleaning services pursuant to her contract until September 30, 2005. The city gave her written notice on September 21, 2005, that the contract was being ended as of September 30, 2005. The facts disclosed by the plaintiff cannot convince a rational fact finder that the contract was terminated on March 21, 2005. As to the termination on September 30, 2005, the plaintiff has failed to demonstrate how it violates the terms of the contract. The defendants are entitled to a dismissal of this claim. Fraud In order to recover on her fraud claim, the plaintiff must prove the following propositions by a preponderance of clear, satisfactory and convincing evidence (this is a higher burden of proof than is required for most tort or contract claims): 1. The defendant on or about the day of , 20 , made a representation to the plaintiff that [set forth the representation made]. 2. The representation was false. 3. The representation was material. 4. The defendant knew the representation was false. 5. The defendant intended to deceive plaintiff. 6. The plaintiff acted in reliance on the truth of the representation and was justified in relying on the representation. 7. The representation was a proximate cause of the plaintiffs damage. 8. The amount of damage. The plaintiff's failure to develop a summary judgment record forces the Court to infer what representation she is relying on. Two possibilities are apparent. The plaintiff may be asserting that the city acted fraudulently when it told her it wanted her to provide cleaning services. The difficulty with this claim is that she and the city had a written agreement and she is unable to show that the agreement was not followed. In the fraud context, she can't show that the city made a false statement or that it intended to deceive her. The plaintiff might also be basing her claim on the city's statement that another cleaning contract might be possible and she would be considered for it. Ultimately, she did not receive any other cleaning contract. The summary judgment record doesn't show what specific statements the city staff made in this regard, that the statements were false or that plaintiff acted in reliance on the statements. The plaintiff has failed to file a Statement of Facts that enables her fraud claim to survive. Intentional Infliction of Emotional Distress The facts essential for recovery on a claim for intentional infliction of emotional distress are: 1. Outrageous conduct by the defendant. 2. The defendant intentionally caused emotional distress or acted with reckless disregard of the probability of causing emotional distress. 3. The plaintiff suffered severe or extreme emotional distress. 4. The defendant's outrageous conduct was a proximate cause of the emotional distress. 5. The nature and extent of plaintiffs damage. The summary judgment record is devoid of evidence that the plaintiff has suffered extreme emotional distress. What it shows is that this was a business relationship and the current dispute is a business dispute. There is nothing in the available facts to suggest that there is any reason why emotion would have been a significant part of the agreement or its breach. The defendants are entitled to dismissal of this claim. Retaliation Discrimination There is no cause of action in Iowa called "retaliation discrimination." Iowa recognizes a tort of wrongful termination of employment when discharged in violation of public policy. Borsche/ v. City of Perry, 512 N.W.2d 565 (Iowa 1994). However, it has been concluded that this tort is not available to an independent contractor. Harvey v. Care Initiatives, Inc., 634 N.W.2d 681 (Iowa 2001). There is a difference between being an employee and being an independent contractor. In assessing which category a person falls in, attention is primarily focused on the extent of control. Harvey v. Care Initiatives, Inc., 634 N.W.2d 681, 685 (Iowa 2001). There is no question that Maid For You is Tina Hessel's company and that the company existed apart from her contract for cleaning services with the City of Dubuque. The summary judgment record establishes that she had four employees that she, as Maid For You, hired and not the City of Dubuque. There is no evidence that the city had any involvement in establishing their wages, employment benefits, work hours or other terms of service. The city did tell the plaintiff that the employees who would be working on its premises would have to undergo a background check. The two employees for whom a background check was completed were found to have events in their background which made them unacceptable to the city as persons who would be allowed on the premises in the context of providing cleaning services. This is the extent of the control exercised by the city over Maid for You. Considering all of the factors established in the record, the conclusion is that Ms. Hessel, doing business as Maid For You, was an independent contractor with the City of Dubuque and not an employee. There is no evidence that Ms. Hessel received a wage or benefits, had withholdings for taxes or was subject to city control in the manner of its regular employees. Ms. Hessel hired her own employees and determined their terms of service. She chose her customers and was compensated with a contract payment. In every sense, she ran an independent business that entered into a contract with the City of Dubuque to provide cleaning services. Because the plaintiff was an independent contractor, she has no claim for wrongful termination of employment. Civil Rights Violations The plaintiff asserts in her petition that the city has violated her rights under "Title 2 Section 202" and "Title 2 Section 203." She appears to be referring to Title II of the Civil Rights Act of 1964, sections 202 and 203. This title is the heart of the act, and deals with public accommodations, so that African Americans can no longer be excluded from restaurants, hotels and other public facilities. The dispute in this case has nothing to do with public accommodations and Title II has no application. Other sections of the Civil Rights Act of 1964 would be more likely to have application to circumstances of this case, most notably Title VI or Title VII. However, the trial court limits itself to consideration of claims that have been made. Conclusion The defendants are entitled to a summary judgment of dismissal for the claims asserted by the plaintiff based on the summary judgment record made by the parties. The plaintiffs petition is dismissed at her expense. DONE AND ORDERED: January 8, 2007 Dis 'b If you require the assistance of auxiliary aids or services to participate in court because of a disability, immediately call your district ADA coordinator at 1553389.4448. If you are hearing impaired, call Relay Iowa TTY at t-600-735.2942. er