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McElroy v. State6/17/2005
7-48 (8th Cir. 2003); Graham v. Bryce Corp., 348 F. Supp. 2d 1038, 1042 (E.D. Ark. 2004); Nichols v. ABB DE, Inc., 324 F. Supp. 2d 1036, 1045 (E.D. Mo. 2004); Price v. Harrah's Maryland Heights Operating Co., 117 F. Supp. 2d 919, 922 (E.D. Mo. 2000); Fry v. Holmes Freight Lines, Inc., 72 F. Supp. 2d 1074, 1079 (W.D. Mo. 1999). An exception, however, applies when the retaliation alleged in the subsequent lawsuit was clearly the result of the filing of the administrative complaint. See Wallin, 153 F.3d at 689; accord Wentz v. Maryland Cas. Co., 869 F.2d 1153, 1154 (8th Cir. 1989) (retaliation claim could be considered because it "grew out of the discrimination charge" the plaintiff filed). The timing of the retaliation is crucial in this analysis: if the alleged retaliation began before the filing of the administrative complaint, a subsequent suit for retaliation that was not brought to the attention of the administrative agency is barred. See Wallin, 153 F.3d at 689.
At trial, the thrust of McElroy's retaliation claim centered around the fact that after she complained to the ISU Affirmative Action Office, in 1996 she was demoted from a temporary instructor to a graduate assistant. (The former position paid significantly more and did not require McElroy to take classes.) She also alleged her letters-of-intent were delayed. Because McElroy did not file her complaint with the ICRC until March 1997 and did not allege retaliation in it even though the alleged retaliation had begun the year before, the district court should not have allowed a Title VII retaliation claim based on the prior allegations. See Williams, 21 F.3d at 222-23 (arriving at same conclusion on similar facts); see also Bainbridge v. Loffredo Gardens, Inc., 378 F.3d 756, 760 (8th Cir. 2004) (finding failure to exhaust administrative remedies where complainant did not check retaliation box and did not allege any facts in complaint to administrative agency to show retaliation); Duncan, 371 F.3d at 1025-26 (similar to Williams and holding same); Watson v. O'Neill, 365 F.3d 609, 614 (8th Cir. 2004) (similar); Russell, 340 F.3d at 748 (holding plaintiff failed to exhaust administrative remedies as to retaliation claim because retaliation began before administrative charge was filed and therefore could not be said to "grow out of" it); Graham, 348 F. Supp. 2d at 1042 (similar); Nichols, 324 F. Supp. 2d at 1045; Price, 117 F. Supp. 2d at 922; Fry, 72 F. Supp. 2d at 1079.
2. ICRA
Although the authorities cited in the foregoing analysis only apply to McElroy's Title VII claim, we think--at least on the arguments presented in this case--that the same analysis should be applied to McElroy's retaliation claim brought under the ICRA. Because the ICRA is in part modeled after Title VII, we have traditionally looked to federal law for guidance in interpreting it. Pecenka v. Fareway Stores, Inc., 672 N.W.2d 800, 803 (Iowa 2003). McElroy has not argued that we should apply a different analysis to the ICRA. Therefore we decline to forge new ground in the absence of briefing. See Racing Ass'n of Cent. Iowa v. Fitzgerald, 675 N.W.2d 1, 6 (Iowa 2004) (" t is prudent to delay any consideration of whether a different analysis is appropriate to a case in which this issue was thoroughly briefed and explored."); see also Pecenka, 672 N.W.2d at 803 (noting that despite consistent utilization of the federal analytical framework, Iowa courts are not bound by federal law in interpreting the ICRA).
3. Disposition
Because the district court erroneously allowed a Title VII retaliation-in-employment claim, we are obliged to reverse and remand for a new trial on all issues. Although the jury also found the defendants had violated
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