Getachew v. West Side, Inc

Filing 8

ORDER granting 5 Motion to Dismiss for Failure to State a Claim. The Clerk of Court is directed to enter judgment in favor of West Side. Signed by Chief Judge Linda R Reade on 11/29/2013 (copy w/NEF mailed to Plt). (skm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION
ALEMAYEHU GETACHEW,
Plaintiff,

13-CV-97-LRR

vs.

ORDER

WEST SIDE TRANSPORT, INC.,
Defendant.
____________________
TABLE OF CONTENTS
I.

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

II.

PROCEDURAL HISTORY.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

III.

SUBJECT MATTER JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . 2

IV.

STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

V.

FACTUAL BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
A.
B.

VI.

Parties.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Overview of the Dispute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

ANALYSIS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
A.

B.

C.

D.

42 U.S.C. § 1981 Discrimination Claim. . . . . . . . . . . . . . . . . . . . . 5
1.
Parties’ arguments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.
Applicable law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.
Application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
42 U.S.C. § 1981 Retaliation Claim. . . . . . . . . . . . . . . . . . . . . . . 7
1.
Parties’ arguments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.
Applicable law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.
Application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Thirteenth Amendment Claim. . . . . . . . . . . . . . . . . . . . . . . . . . . 8
1.
Parties’ arguments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.
Applicable law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.
Application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
State Law Claims.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
1.
Wrongful discharge in violation of state law.. . . . . . . . . . . . 10
a.
Parties’ arguments. . . . . . . . . . . . . . . . . . . . . . . . . 10

2.

VII.

b.
Applicable law.. . . . . . . . . . . . . . . . . . . . . . . . . . .
c.
Application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Intentional misrepresentation. . . . . . . . . . . . . . . . . . . . . .
a.
Parties’ arguments. . . . . . . . . . . . . . . . . . . . . . . . .
b.
Applicable law.. . . . . . . . . . . . . . . . . . . . . . . . . . .
c.
Application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

11
13
14
14
15
15

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
I. INTRODUCTION
The matter before the court is Defendant West Side Transport, Inc.’s (“West Side”)

Motion to Dismiss (“Motion”) (docket no. 5).
II. PROCEDURAL HISTORY
On September 25, 2013, Plaintiff Alemayehu Getachew filed a pro se complaint
(“Complaint”) (docket no. 3) alleging that West Side: discriminated against him by
terminating his employment in violation of 42 U.S.C. § 1981 (Count I); retaliated against
him for complying with federal regulations and complaining about his pay in violation of
42 U.S.C. § 1981 (Count II); wrongfully discharged him in violation of Iowa law (Count
III); intentionally misrepresented what Getachew would be paid while working for West
Side (Count IV); and violated Getachew’s rights under the Thirteenth Amendment to the
United States Constitution (Count V). On October 29, 2013, West Side filed the Motion
arguing that the court should dismiss each claim in Getachew’s Complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6). On November 13, 2013, Getachew filed his
Resistance (docket no. 6). The Motion is fully submitted and ready for decision.
III. SUBJECT MATTER JURISDICTION
The court has federal question jurisdiction over Getachew’s claims in Counts I and
II of the Complaint because they arise under 42 U.S.C. § 1981. The court also has federal
question jurisdiction over Count V because it arises under the United States Constitution.
See 28 U.S.C. § 1331 (“The district courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of the United States.”). The court
2

has diversity jurisdiction over Counts III and IV because Getachew is an Ohio resident,
West Side is an Iowa corporation and the amount in controversy exceeds $75,000. See 28
U.S.C. § 1332 (“The district courts shall have original jurisdiction of all civil actions
where the matter in controversy exceeds the sum or value of $75,000 . . . and is between
. . . citizens of different States . . . .”).
IV. STANDARD OF REVIEW
A pro se complaint must be liberally construed. See Hughes v. Rowe, 449 U.S. 5,
9 (1980); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Smith v. St. Bernards
Reg’l Med. Ctr., 19 F.3d 1254, 1255 (8th Cir. 1994). In addition, unless the facts alleged
are clearly baseless, they must be weighed in favor of the plaintiff. Denton v. Hernandez,
504 U.S. 25, 32-33 (1992). A court, however, can dismiss at any time a complaint filed
in forma pauperis if the complaint is frivolous, malicious, fails to state a claim on which
relief may be granted or seeks monetary relief against a defendant who is immune from
such relief. 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A(b)(1). A claim is “frivolous”
if it “lacks an arguable basis in either law or in fact.” Neitzke v. Williams, 490 U.S. 319,
325 (1989); accord Cokeley v. Endell, 27 F.3d 331, 332 (8th Cir. 1994). An action fails
to state a claim upon which relief can be granted if it does not plead “enough facts to state
a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007). Accordingly, a court may review the complaint and dismiss sua sponte those
claims that fail “to raise a right to relief above the speculative level,” Parkhurst v. Tabor,
569 F.3d 861, 865 (8th Cir. 2009) (quoting Twombly, 550 U.S. at 555) (internal quotation
marks omitted), or that are premised on meritless legal theories or clearly lack any factual
basis, Neitzke, 490 U.S. at 325.

See, e.g., Denton, 504 U.S. at 27 (considering

frivolousness); Myers v. Vogal, 960 F.2d 750, 751 (8th Cir. 1992) (concluding that a
district court may dismiss an action if an affirmative defense exists).

3

Although a plaintiff need not provide “detailed” facts in support of its allegations,
id. (quoting Twombly, 550 U.S. at 555), the “short and plain statement” requirement of
Federal Rule of Civil Procedure 8(a)(2) “demands more than an unadorned” accusation
of harm, id.; see also Erickson v. Pardus, 551 U.S. 89, 93 (2007) (“Specific facts are not
necessary [under Rule 8(a)(2)].”). “A pleading that offers ‘labels and conclusions’ or ‘a
formulaic recitation of the elements of a cause of action will not do.’” Iqbal, 556 U.S. at
678 (quoting Twombly, 550 U.S. at 555). “Where the allegations show on the face of the
complaint [that] there is some insuperable bar to relief, dismissal under Rule 12(b)(6) is
appropriate.” Benton v. Merrill Lynch & Co., 524 F.3d 866, 870 (8th Cir. 2008).
V. FACTUAL BACKGROUND
Viewed in the light most favorable to Getachew, the facts are as follows:
A. Parties
Getachew is a citizen of Columbus, Ohio who began working for West Side as a
truck driver sometime before October 2012.
West Side is an Iowa corporation with its principal place of business in Cedar
Rapids, Iowa. West Side operates a fleet of over 600 trucks and 1500 trailers throughout
the United States.
B. Overview of the Dispute
West Side hired Getachew to work as a truck driver for the company sometime
before October 2012.1 On October 3, 2012, Getachew began to drive a load from Keokuk,
Iowa to Roanoke, Indiana. On October 4, 2012, Getachew was late for a scheduled
delivery. Later that day, an employee from West Side called Getachew and said, “Come
on to my office and we will talk like men to men.” Complaint at 3. As Getachew was on

1

Although it is not clear in the Complaint, it appears that Getachew completed
training to become a driver in October 2011 and that West Side hired him shortly
thereafter.
4

his way back to Iowa, Frank Gambish, West Side’s general manager, instructed Ryan
Armstrong, Getachew’s supervisor, to prepare three allegedly unfounded warnings for
Getachew and his termination papers. When Getachew arrived at the office, Gambish told
him to sign the documents, which terminated his employment. Gambish told Getachew
that the reason West Side was terminating him was because he had been late for the
delivery on October 4, 2012.
On October 25, 2012, West Side and Getachew had a hearing at the Iowa
Workforce Development office. At the hearing, West Side’s human resources manager,
Amy Jordan, allegedly testified that West Side had not given Getachew any warnings, in
writing or verbally, prior to his termination on October 5, 2012. Jordan also allegedly
testified that it was common practice for West Side to force their drivers to sign three
warning documents at once in exchange for West Side agreeing not to revile their dock
reports.2
VI. ANALYSIS
A. 42 U.S.C. § 1981 Discrimination Claim
1.

Parties’ arguments

West Side argues that the court should dismiss Getachew’s § 1981 discrimination
claim because he failed to allege any facts that showed he was a member of a protected
class or that the circumstances of his termination give rise to an inference of racial
discrimination.
Getachew argues that the court should not dismiss his § 1981 discrimination claim
because he alleges that West Side discriminated against him when it discharged him on
account of his race.

2

A dock report is a record of a driver’s activity while driving inside a compound.
Employers consider dock reports when deciding whether to hire applicants.
5

2.

Applicable law

Section 1981 provides that “[a]ll persons . . . shall have the same right . . . to make
and enforce contracts . . . as is enjoyed by white citizens.” 42 U.S.C. § 1981(a).
Pursuant to subsection (b), “the term ‘make and enforce contracts’ includes the . . .
termination of contracts, and the enjoyment of all benefits, privileges, terms, and
conditions of the contractual relationship.” § 1981(b). In summary, § 1981 “affords a
federal remedy against discrimination in private employment on the basis of race.”
Johnson v. Ry. Express Agency, Inc., 421 U.S. 454, 460 (1975).
Section 1981 claims are analyzed under the same framework as Title VII
employment discrimination claims. See Lake v. Yellow Transp., Inc., 596 F.3d 871, 873
n.2 (8th Cir. 2010) (citing Gordon v. Shafer Contracting Co., 469 F.3d 1191, 1196 (8th
Cir. 2006)). To establish a prima facie case of discrimination under § 1981 a plaintiff
must show: “(1) he is a member of a protected class, (2) he met his employer’s legitimate
expectations, (3) he suffered an adverse employment action, and (4) the circumstances give
rise to an inference of discrimination.” Id. at 874.
3.

Application

In this case, Getachew has not made any factual allegations of racial discrimination
in his Complaint. In fact, the only allegation he puts forth is that an employee from West
Side called Getachew on October 4, 2012 and told him to “[c]ome on to my office and we
will talk like men to men,” Complaint at 3, which on its face is a racially neutral
statement. The Complaint is bereft of any facts or circumstances whatsoever that give rise
to an inference of discrimination, the fourth element required to establish a prima facie
case of discrimination under § 1981. Therefore, Getachew fails to allege enough facts to
support his claim that West Side violated his right to contract in violation of § 1981 and,
therefore, his claim fails. See Twombly, 550 U.S. at 570. Accordingly, the court shall

6

grant the Motion to the extent that it requests that the court dismiss Getachew’s § 1981
discrimination claim.
B. 42 U.S.C. § 1981 Retaliation Claim
1.

Parties’ arguments

West Side argues that the court should dismiss Getachew’s § 1981 retaliation claim
because he did not allege that he engaged in a protected activity in the context of § 1981.
Getachew alleges that West Side retaliated against him by discharging him for
engaging in the protected activities of complying with federal driving-hour regulations,
which is his reason for being late to his delivery, and complaining about reduced pay.
2.

Applicable law

A retaliation claim under § 1981 has the following elements: (1) the employee
“engaged in a statutorily protected activity; (2) an adverse employment action was taken
against him or her; and (3) a causal connection exists between the two events.” Gilooly
v. Mo. Dept. of Health & Senior Servs., 421 F.3d 734, 739 (8th Cir. 2005).
The meaning of a “statutorily protected activity” in the context of § 1981 is conduct
protected by Title VII. Sayger v. Riceland Foods, Inc., Nos. 12-3301, 12-3395, 2013 WL
6050746, at *4 (8th Cir. Nov. 13, 2013); see also Wright v. St. Vincent Health Sys., 730
F.3d 732, 737 (8th Cir. 2013) (“Though each statute provides ‘separate, distinct, and
independent’ remedies for unlawful retaliation, . . . the elements of . . . Title VII and 42
U.S.C. § 1981 retaliation claims ‘are identical.’” (quoting Johnson, 421 U.S. at 661 and
Kim v. Nash Finch Co., 123 F.3d 1046, 1063 (8th Cir. 1997))). A protected activity “can
be either opposing an act of discrimination made unlawful by Title VII (‘the opposition
clause’), or participating in an investigation under Title VII (‘the participation clause’).”
Hunt v. Neb. Pub. Power Dist., 282 F.3d 1021, 1028 (8th Cir. 2002). Title VII makes
it unlawful for employers to discriminate based on race, color, religion, sex, or national
origin. See Brower v. Runyon, 178 F.3d 1002, 1005 (8th Cir. 1999).

7

3.

Application

While Getachew alleges that West Side discharged him after engaging in a protected
activity, his Complaint makes no factual allegations that support that he engaged in a
protected activity as defined by Title VII. Specifically, Getachew neither makes factual
allegations that he opposed an act of unlawful discrimination before West Side discharged
him (the opposition clause) nor makes any factual allegations that West Side discharged
him because he participated in an investigation under Title VII (the participation clause).
See Hunt, 282 F.3d at 1028. Since the Complaint lacks any factual allegations that
Getachew engaged in a protected activity, Getachew’s retaliation claim fails. Cf. id. at
1028-29 (finding that the district court properly dismissed the plaintiff’s Title VII
retaliation claim when she failed to attribute an adverse employment action to unlawful sex
discrimination). Accordingly, the court shall grant the Motion to the extent that it requests
that the court dismiss Getachew’s § 1981 retaliation claim.
C. Thirteenth Amendment Claim
1.

Parties’ arguments

West Side argues that the court should dismiss Getachew’s Thirteenth Amendment
claim because the Thirteenth Amendment does not give rise to an independent cause of
action. Moreover, West Side states that since the only statute on which Getachew relies
to enforce the Thirteenth Amendment has already been asserted, his claim should be
dismissed.
Getachew asserts that West Side violated his Thirteenth Amendment right and relies
on § 1981 as his mechanism to enforce the Thirteenth Amendment. Getachew claims that
when an employee from West Side said, “Come on to my office and we will talk like men
to men,” it indicated that employee’s racial superiority and undermined Getachew’s
national origin status, thus infringing on his Thirteenth Amendment rights.

8

2.

Applicable law

The Thirteenth Amendment states:
Section 1. Neither slavery nor involuntary servitude, except
as punishment for crime whereof the party shall have been
duly convicted, shall exist with the United States, or any place
subject to their jurisdiction.
Section 2. Congress shall have the power to enforce this
article by appropriate legislation.
U.S. Const. amend. XIII. Congress, under Section Two of the Thirteenth Amendment,
has the power “rationally to determine what are the badges and incidents of slavery, and
the authority to translate that determination into effective legislation.” Jones v. Alfred H.
Mayer Co., 392 U.S. 400, 440 (1968). In fact, Congress can reach “purely private
action” under the authority of the Thirteenth Amendment. U.S. v. Bledsoe, 728 F.2d
1094, 1097 (8th Cir. 1984) (citing Jones, 392 U.S. at 438-39). However, the Thirteenth
Amendment is not self-enforcing, and Congress must effectuate its provisions with specific
legislation, as authorized in Section 2. See, e.g., Sanders v. A.J. Canfield Co., 635 F.
Supp. 85, 87 (N.D. Ill. 1986) (“There is no direct private cause of action under the
Thirteenth Amendment. Plaintiffs, instead, must resort to statutory remedies created by
Congress under the power granted to it by that amendment.”).
3.

Application

To state a Thirteenth Amendment claim, Getachew must rely on a statute that
enforces the provisions of the Thirteenth Amendment.

The only statute on which

Getachew relies to enforce the Thirteenth Amendment is § 1981. However, the court has
already concluded that Getachew does not state a claim for relief under § 1981 and the
court is not aware of any other statute which could serve as a basis for Getachew’s § 1981
claim. Therefore, Getachew’s Thirteenth Amendment claim also fails. Accordingly, the
court shall grant the Motion to the extent that it requests that the court dismiss Getachew’s
Thirteenth Amendment claim.
9

D. State Law Claims
Getachew’s remaining claims are state law claims. Getachew alleges that West Side
wrongfully discharged Getachew in violation of Iowa law (Count III) and that West Side
intentionally misrepresented how much Getachew would be paid (Count IV).
1.

Wrongful discharge in violation of state law
a.

Parties’ arguments

West Side argues that the court should dismiss Getachew’s wrongful discharge
claim. West Side asserts that the employment relationship between it and Getachew was
an at-will employment relationship and that Getachew failed to identify a clear public
policy against discharging Getachew that can overcome the nature of an at-will
employment relationship. With regard to Getachew’s reference to the federal drivinghours regulation, West Side states that Getachew has failed to identify the federal rule that
limits driving hours. West Side argues that even if Getachew did identify the applicable
regulation, “[t]here is no authority holding that Iowa’s public policy exception to the atwill employment doctrine can be supported by federal regulations.” Brief in Support of
the Motion (docket no. 5-1) at 7. West Side also argues that the applicable federal
regulation has an enforcement provision that Getachew did not exercise and, therefore, the
public policy exception does not apply.
Getachew argues that West Side wrongfully discharged Getachew in violation of
Iowa law. Getachew asserts that “employment is a contractual relationship,” which
implies an “obligation of good faith and fair dealing.” Complaint ¶ 31. Specifically,
Getachew states that West Side never issued a written or verbal warning to him prior to
his determination and that it wrongfully discharged him for being late when he was late
because he was following a federal regulation.

10

b.

Applicable law

In Iowa, employment relationships are generally considered to be at-will absent a
valid contract of employment. Fitzgerald v. Salsbury Chem., Inc., 613 N.W.2d 275, 280
(Iowa 2000). An at-will employment relationship means that the relationship can be
terminated “by either party ‘at any time, for any reason, or no reason at all.’” Id. (quoting
Phipps v. IASD Health Servs. Corp., 558 N.W.2d 198, 202 (Iowa 1997)). However, Iowa
courts have developed two exceptions to this doctrine.3 Id. One exception is the public
policy exception. Id. To state a claim under the public policy exception, a plaintiff is
required to establish: “(1) The existence of a clearly defined public policy that protects an
activity[;] (2) [t]his policy would be undermined by a discharge from employment[;] (3)
[t]he challenged discharge was the result of participating in the protected activity[; and] (4)
[t]here was lack of other justification for the termination.” Lloyd v. Drake Univ., 686
N.W.2d 225, 228 (Iowa 2004) (formatting omitted).
Whether a clearly defined public policy protects an activity is a matter of law for
the court to resolve. Id. at 229. When deciding whether to establish a public policy
exception to the at-will employment doctrine, courts are to “only extend such recognition
to those policies that are well recognized and clearly defined.” Davis v. Horton, 661
N.W.2d 533, 536 (Iowa 2003). As a general rule, public policy exceptions must be
“weighty enough ‘to overcome the employer’s interest in operating its business in the
3

Getachew has not made any factual allegations that West Side violated the second
exception, which is for “discharges in violation of employee handbooks which constitute
a unilateral contract.” Id. at 281. Therefore, Getachew’s only potential avenue of
recovery based on wrongful discharge is the public policy exception.
Notably, Iowa courts “have consistently refused to adopt a covenant of good faith
and fair dealing with respect to at-will employment relationships.” Id. at 280 (emphasis
added). Therefore, to the extent that Getachew argues that he is entitled to relief on Count
IV due to an alleged breach of the “obligation of good faith and fair dealing,” Getachew
has failed to state a claim upon which relief may be granted.
11

manner it sees fit,’ which [Iowa courts] have long and vigorously protected.” Lloyd, 686
N.W.2d at 229 (quoting Fitzgerald, 613 N.W.2d at 282). Although Iowa courts have
typically looked to statutes to establish public policy exceptions, the Iowa Supreme Court
has acknowledged that state “administrative regulations may be used as an additional
source of public policy to support the tort of wrongful discharge” if they “state a clear and
well-defined public policy that protects an activity in the same way as a statute” and relate
to “public health, safety, or welfare.” Jasper v. H. Nizam, Inc., 764 N.W.2d 751, 763-64
(Iowa 2009). However, the court is not aware of any case in which the Iowa Supreme
Court, or any other Iowa court, has recognized a federal regulation as a source of a public
policy exception, and Getachew has not alerted the court to any such case.
The federal regulation addressing driving hours for property-carrying commercial
vehicles is 49 C.F.R. § 395.3. Pursuant to that regulation, “A driver may drive only
during a period of 14 consecutive hours after coming on duty following 10 consecutive
hours off duty. . . . A driver may drive a total of 11 hours during [such] 14-hour drive
period . . . .” 49 C.F.R. 395.3(a). Pursuant to 49 U.S.C. § 31105, “A person may not
discharge an employee . . . because . . . the employee refuses to operate a vehicle because
. . . the operation violates a regulation . . . of the United States related to commercial
motor vehicle safety [or] health . . . .” 49 U.S.C. § 31105(a). If an employee is
discharged in violation of § 31105, the employee “may file a complaint with the Secretary
of Labor not later than 180 days after the alleged violation occurred.” 49 U.S.C.
§ 31105(b). If the Secretary of Labor does not make a decision within 210 days after the
complaint is filed or if the decision adversely affects the employee, the employee may seek
review in United States district courts (if no decision is rendered) or the United States
circuit courts of appeals (if the decision adversely affects the employee). 49 U.S.C.
§ 31105(c)-(d).

12

c.

Application

Getachew has not made any factual allegations that his employment relationship was
subject to a valid employment contract. Therefore, the court finds that Getachew and West
Side’s employment relationship was at-will. Accordingly, Getachew is required to put
forth a clear public policy that overcomes the general rule that at-will employees can be
terminated “at any time, for any reason, or no reason at all.” Phipps, 558 N.W.2d at 202.
The court finds that there is no public policy exception to the nature of Getachew’s
at-will employment relationship with West Side based on a federal regulation when the
federal regulation at issue provides a detailed statutory procedure by which an aggrieved
employee can seek relief. See Hamilton v. First Baptist Elderly Hous. Found., 436
N.W.2d 336, 431 (Iowa 1989) (holding that Iowa Code chapter 601A, Iowa’s civil rights
statute, “preempts independent common law actions also premised on discrimination” and
dismissed the plaintiff’s action for wrongful discharge in violation of public policy because
it amounted to “a second bite of the apple”).
Here, federal law provided a procedure by which Getachew should have sought
relief. First, Getachew should have filed a complaint with the Secretary of Labor within
180 days after the alleged violation occurred. 49 U.S.C. § 31105. If the Secretary of
Labor did not provide relief, Getachew could then seek relief in either the federal district
or appellate courts. Getachew already had an administrative remedy, and an additional
remedy pursuant to Iowa state law would simply offer another bite at the apple. Thus, the
concern that drivers may be discharged for complying with federal regulations is not
“weighty enough ‘to overcome the employer’s interest in operating its business in the
manner it sees fit,’ which [Iowa courts] have long and vigorously protected.” Lloyd, 686
N.W.2d at 229 (quoting Fitzgerald, 613 N.W.2d at 282); see also Kornischuk v. Con-Way
Cent. Express, No. Civ 1-03-CV-10013, 2003 WL 21977202 (N.D. Iowa June 4, 2003)
(“[T]his Court finds that because a detailed statutory procedure exists by which an

13

aggrieved employee may administratively enforce the public policy embodied in [the
federal regulation], he may not now pursue a common law wrongful discharge claim based
on the same policy.”). Accordingly, the court shall grant the Motion to the extent that it
requests that the court dismiss Getachew’s claim that he was wrongfully discharged in
violation of Iowa law because he was following a federal regulation.
With regard to Getachew’s claim that West Side discharged him without giving him
any warnings, the court finds that Getachew’s claim is without merit. Getachew has not
alleged that his employment was subject to conditions outlined in an employment manual,
another exception to the at-will employment doctrine. Moreover, the court is not aware
of any case in which the Iowa Supreme Court, or any other Iowa court, has recognized
internal company policy as a source of a public policy exception, and Getachew has not
alerted the court to any such case. Cf. Anderson v. Douglas & Lomason Co., 540 N.W.2d
277, 282-89 (Iowa 1995) (rejecting an employee’s argument that an employer wrongfully
discharged him because the employer failed to follow procedures outlined in an employee
handbook since there is no duty to follow disciplinary procedures outlined in an employee
handbook unless the handbook constitutes a unilateral offer). Accordingly, the court shall
grant the Motion to the extent that it requests that the court dismiss Getachew’s claim that
West Side wrongfully discharged him because it did not give him sufficient warnings.
2.

Intentional misrepresentation
a.

Parties’ arguments

West Side argues that the court should dismiss Getachew’s intentional representation
claim because Getachew failed to meet the “heightened pleading requirements under the
Federal Rules of Civil Procedure.” Brief in Support of Motion at 8. Specifically, West
Side argues that Getachew failed to “identify with any specificity the statements he
contends were false, who made the statements, when and where they were made or why
the statements were fraudulent.” Id.

14

Getachew argues that West Side intentionally misrepresented what he would be
paid. Getachew states that he “relied on these false representations . . . pay by mile . . .
then pay by zip code” by “decid[ing] to accept [West Side’s] job offer[,] passing up other
employment opportunities.”

Complaint at 10.

Getachew claims that West Side

“intentionally deceived” him when it underpaid him “in violation of the agreed payment
term” and claims that West Side “is responsible for [i]ntentional misrepresentation.” Id.
b.

Applicable law

Federal Rule of Civil Procedure 9(b) requires that “a party must state with
particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge,
and other conditions of a person’s mind may be alleged generally.” Fed. R. Civ. P. 9(b).
A pleading alleging fraud must contain “a higher degree of notice, enabling the defendant
to respond specifically, at an early stage of the case, to potentially damaging allegations
of immoral and criminal conduct.” Schaller Tel. Co. v. Golden Sky Sys., Inc., 298 F.3d
736, 746 (8th Cir. 2002) (quoting Abels v. Farmers Commodities Corp., 259 F.3d 910,
920 (8th Cir. 2001)) (internal quotation marks omitted). Circumstances constituting fraud
“include such matters as the time, place and contents of false representations, as well as
the identity of the person making the misrepresentation and what was obtained or given up
thereby.” Bennett v. Berg, 685 F.2d 1053, 1062 (8th Cir. 1982). If a plaintiff fails to
plead with particularity a claim of fraud, a court may dismiss the claim for failing to state
a claim under Rule 12(b)(6). See Freitas v. Wells Fargo Home Mortg., Inc., 703 F.3d
436, 440 (8th Cir. 2013)
c.

Application

As an initial matter, the court notes that a pro se complaint must be liberally
construed. See Hughes, 449 U.S. at 9. However, because Getachew’s Complaint is so
lacking in any particularized factual allegations—including what exactly Getachew was told
he would be paid and what he was actually paid, who said these things, when they were

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said and where they were said—the court finds that, even after liberally construing the
Complaint, Getachew fails to meet the particularized pleading requirements of Federal
Rule of Civil Procedure 9(b). Getachew had all the information necessary to allege a fraud
claim under Iowa law with sufficient particularity, and he even had an opportunity to
clarify the record in his Resistance. See Freitas, 703 F.3d at 440 (declining to relax
federal pleading standards when the plaintiff “possessed information that would have
enabled them to ‘state with particularity’ the circumstances of [the defendant’s]
representations as Rule 9(b) requires”). However, in light of Getachew’s failure to make
even the most basic particularized factual allegations, the court shall grant the Motion to
the extent that it requests the court to dismiss Getachew’s intentional misrepresentation
claim for failure to state a claim on which relief may be granted.
VII. CONCLUSION
In light of the foregoing, the Motion (docket no. 5) is GRANTED. The Clerk of
Court is DIRECTED to enter judgment in favor of West Side.
IT IS SO ORDERED.
DATED this 29th day of November, 2013.

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