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
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CASE NO. CVCV054433 fio ~
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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
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