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George v. D.W. Zinser Co.

Supreme Court of Iowa

March 13, 2009, Filed

No. 07-1495

Opinion

 [*866]  STREIT, Justice.

After noticing his employer's failure to take certain required safety precautions during lead abatement jobs in violation of Iowa's Occupational Safety and Health Act (IOSHA), Iowa Code chapter 88 (2007), Jeffrey George filed a complaint with the Iowa Division of Labor Services Occupational Safety and Health Bureau (the Division). Soon thereafter, his employment with the company was terminated. George filed another complaint with the Division alleging retaliatory discharge in violation of IOSHA as well as a claim for wrongful discharge in the district court. The Division dismissed George's complaint. The district  [**2] court also dismissed George's complaint on the grounds of res judicata, concluding the Division's dismissal precluded further litigation on the issue. George appealed. Because the Division's investigation and dismissal was not an adjudication, res judicata does not preclude George's action in the district court. Further, the remedy provided in IOSHA is not exclusive, and George may bring a common law action for wrongful discharge in the district court.

I. Background Facts and Prior Proceedings.

On January 18, 2007, Jeffrey George filed a complaint with the Division, alleging his employer, D.W. Zinser, violated provisions of IOSHA. The complaint arose out of violations George witnessed while performing  [*867]  lead abatement jobs for D.W. Zinser in September and October 2006. As a result of a subsequent investigation, D.W. Zinser was cited for eight serious IOSHA violations and assessed penalties on February 8, 2007.

On or around January 23, D.W. Zinser learned IOSHA complaints had been filed against the company. Michael Zinser left two messages on George's voicemail that day indicating they needed to speak as soon as possible. On January 24, David Zinser told George he should return the company  [**3] truck that had been assigned to him, and there was no work available for him. On January 29, George met with David Zinser. Following the advice of the Division, George carried a concealed recording device. On February 1, George had another similar meeting. Although much of the recordings was inaudible, it seems that David Zinser was not going to give George work because of the IOSHA situation. George's employment with D.W. Zinser was subsequently terminated.

In March, George filed a complaint with the Division alleging he was discharged in retaliation for reporting unsafe working conditions. On April 4, the Division dismissed George's complaint. George appealed, and the interim labor commissioner affirmed the dismissal. The commissioner found that George, along with other employees, was laid off on January 12, before George filed his complaint regarding the IOSHA violations. George did not seek judicial review of the commissioner's decision under Iowa Code section 17A.19 (2007).

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762 N.W.2d 865 *; 2009 Iowa Sup. LEXIS 27 **; 22 OSHC (BNA) 1680; 157 Lab. Cas. (CCH) P60,765

JEFFREY GEORGE, Appellant, vs. D.W. ZINSER COMPANY, Appellee.

Prior History:  [**1] On review from the Iowa Court of Appeals. Appeal from the Iowa District Court for Linn County, James H. Carter, Judge. Employee challenges district court's dismissal of his petition asserting claims of retaliatory discharge and unpaid wages against his former employer.

George v. D.W. Zinser Co., 755 N.W.2d 143, 2008 Iowa App. LEXIS 1396 (Iowa Ct. App., 2008)

Disposition: DECISION OF COURT OF APPEALS AFFIRMED IN PART AND VACATED IN PART; DISTRICT COURT JUDGMENT REVERSED.

CORE TERMS

res judicata, district court, wrongful discharge, file a complaint, retaliatory discharge, parties, common law action, motion to dismiss, public policy, courts, administrative remedy, court of appeals, fair opportunity, terminated, summary judgment motion, judicial capacity, preclusive effect, discharged, litigate, wages

Civil Procedure, Judgments, Summary Judgment, General Overview, Responses, Defenses, Demurrers & Objections, Motions to Dismiss, Appeals, Summary Judgment Review, Standards of Review, Entitlement as Matter of Law, Preclusion of Judgments, Res Judicata, Estoppel, Collateral Estoppel, Administrative Law, Agency Adjudication, Decisions, Business & Corporate Compliance, Labor & Employment Law, Occupational Safety & Health, Civil Liability Under OSHA, Labor & Employment Law, Exceptions, Tort Exceptions, Public Policy Violations, Administrative Proceedings, Judicial Review, Reviewability, Exhaustion of Remedies