IN THE IOWA DISTRICT COURT FOR CERRO GORDO COUNTY

COMES NOW, the Plaintiff Lionel Foster, by and through counsel, and states for his causes of action against the Defendants as follows:

INTRODUCTION

1. This is an action under and pursuant to the Iowa Civil Rights Act, Iowa Code Chapter 216, Iowa Code Chapter 729.4, and the Iowa Constitution.
2. At all times material hereto, Plaintiff Lionel Foster was a citizen and resident of Cerro Gordo County, Iowa.
3. Plaintiff is protected from discriminatory practices based on race and age pursuant to Iowa Code Chapter 216.

PARTIES

4. At all times material hereto, Defendant City of Mason City was a municipal corporation organized and existing under the laws of Iowa with its principal place of business at 10 First Street NW, Mason City, Cerro Gordo County, Iowa.
5. At all times material hereto, Defendant Mason City Human Rights Commission was a municipal commission organized and existing under the laws of Iowa and functioning as an integrated enterprise with Defendant City of Mason City, with its principal place of business at 10 First Street NW, Mason City, Cerro Gordo County, Iowa.
6. At all times material hereto, Defendant Eric Bookmeyer (“Bookmeyer”) was the Mayor of Mason City and a citizen and resident of Cerro Gordo County, Iowa.
7. At all times material hereto, Defendant Brent Trout was the City Administrator of Mason City and was a citizen and resident of Cerro Gordo County, Iowa.
8. At all times material hereto, Defendant Jean E. Marinos was a City Councilmember of Mason City and was a citizen and resident of Cerro Gordo County, Iowa.
9. At all times material hereto, Defendant John Lee was a City Councilmember of Mason City and was a citizen and resident of Cerro Gordo County, Iowa.
10. At all times material hereto, Defendant Alex Kuhn was a City Councilmember of Mason City and was a citizen and resident of Cerro Gordo County, Iowa.
11. At all times material hereto, Defendant Janet Solberg was a City Councilmember of Mason City and was a citizen and resident of Cerro Gordo County, Iowa.
12. At all times material hereto, Defendant Travis Hickey was a City Councilmember of Mason City and was a citizen and resident of Cerro Gordo County, Iowa.
13. At all times material hereto, Defendant Scott Tornquist was a City Councilmember and Mayor Pro Tem of Mason City and was a citizen and resident of Cerro Gordo County, Iowa.
14. At all times material hereto, Defendant Stephen Palmer was a Mason City Human Rights Commissioner and was a citizen and resident of Cerro Gordo County, Iowa.
15. At all times material hereto, Defendant Brian McNamara was a Mason City Human Rights Commissioner and was a citizen and resident of Cerro Gordo County, Iowa.

PROCEDURAL REQUIREMENTS

6. On September 16, 2013, within 300 days of the acts of which he complains, Plaintiff filed charges of employment discrimination with the Iowa Civil Rights Commission against the above named Defendants.
7. On April 16, 2014, less than ninety (90) days prior to the filing of this Complaint, the Iowa Civil Rights Commission issued to Plaintiff, pursuant to Iowa Code Chapter 216.16, a notice of right to sue with respect to such charges of discrimination.

FACTUAL BACKGROUND

8. In March of 1972, Defendant Mason City hired Plaintiff as a part-time Community Aide, moved him to full-time employment in March of 1973, and appointed him Affirmative Action Officer in May of 1974.
9. In August 1978, Plaintiff was designated the Human Rights Director for the Mason City Human Rights Commission (MCHRC) / Defendant City of Mason City.
10. In 1989, IC. System, Inc. (ICSI) opened in Mason City with eight employees. By 2002, ICSI had grown to 125 employees.
11. In October 2005, the City Council approved an agreement with ICSI for a $370,000 economic development grant. The agreement stipulated that ICSI would remain in Mason City and increase its staffing level by July 1, 2008. ICSI also agreed that should it fail to meet its targeted goal by that time, it would refund the money to the city.
12. Since its inception, many ICSI employees have filed employment discrimination complaints against the company with the MCHRC.
13. On July 29, 2008 ICSI’s Financial Officer, Kurt Heinbigner, requested a five-year extension of the agreement because ICSI was 96 positions short of their employment goal, falsely stating that complaints made by employees to the MCHRC were a major reason for the shortfall.
14. On September 16, 2008, Scott Bultje, Division Vice President and Mason City Site Manager of ICSI, reprimanded the City Council for denying ICSI’s request and handed them a check for $177,600.00.
15. On June 28, 2012, a housing complaint was filed by a tenant against Defendant Jean Marinos through the MCHRC. Marinos owns a major real estate firm.
16. On November 4, 2009, Bookmeyer was elected mayor. His campaign committee had included Cohl Bultje, the son of Scott Bultje.
17. On November 4, 2009, Janet Solberg was elected to the city council. She had filed two unsuccessful complaints with MCHRC in November of 2004. Travis Hickey was elected and he works for Federal Express Services (FedEx), which has a history of litigation with the MCHRC.
18. Defendants Solberg and Hickey then joined Max Weaver, Don Nelson, Scott Tornquist, and Jeff Marsters on the City Council.
19. The Mayor has no authority over any entity in city government, except the police department. Nonetheless, Defendant Bookmeyer has continuously attempted to control the MCHRC and to belittle and harass Plaintiff. Defendant Bookmeyer frequently told Plaintiff that he needed to make the MCHRC more “transparent,” even though production with regard to complaints are completely confidential by law.
20. In early January of 2010, Defendant Bookmeyer told Councilman Hickey that he wanted to cut $50,000 from the MCHRC’s budget, a cut that would have terminated Plaintiff’s position.
21. On January 28, 2010, the City Council conducted a budget workshop. Defendant MCHRC had moved the full amount of Plaintiff’s salary to Defendant Mason City’s ledger instead of splitting it between city and federal funds.
22. Defendant Tornquist mischaracterized this bookkeeping change as a $20,000 budget increase, and said, “I can’t imagine not having the Human Rights Commission, but we’re doing it the most expensive way.”
23. On January 30, 2010, Defendant Tornquist falsely said, “The Mason City Human Rights Commission handles cases from outside of Mason City. It serves regionally. Mason City taxpayers shouldn’t be paying for that.”
24. In December of 2010, Plaintiff asked Defendant Bookmeyer to re-appoint three commissioners to the MCHRC, including Kathy Loeckle. Defendant Bookmeyer refused and told Loeckle that he wanted younger commissioners with fresher perspectives, direct evidence of his discriminatory mindset.
25. In February of 2011, Defendant Bookmeyer once again told Plaintiff that the MCHRC needed to be more transparent. Plaintiff, who had explained this to Bookmeyer countless times, said that the MCHRC is contractually barred from publicizing the parties involved in the civil rights complaints. Loeckle entered Bookmeyer’s office at the end of this explanation. Bookmeyer told her that the MCHRC was not transparent enough, moments after hearing Plaintiff’s explanation.
26. Throughout Plaintiff’s employment, Defendant Bookmeyer refused to appoint the commissioners who Plaintiff recommended, even though that was typically the process for selecting new members. Additionally, Defendant Bookmeyer purposefully delayed appointing MCHRC commissioners.
27. On February 15, 2011, the City Council discussed MCHRC’s appointments. Three positions became vacant in January 2011 and it was Defendant Bookmeyer’s job to appoint new members and he had failed to do so. He said that the MCHRC needs “oversight and accountability.” Defendant Bookmeyer said that “more cases had been pursued by the city’s commission than comparable commissions in peer cities” and many of the cases were frivolous.
28. The City Council voted to force Defendant Bookmeyer to nominate three new members by March 1, 2011.
29. Defendant Bookmeyer nominated Defendant Brian McNamara to the MCHRC in April 2011.
30. On April 8, 2011, the MCHRC unanimously voted to deny Defendant McNamara’s appointment to the commission because he had absolutely no experience in Civil Rights.
31. The MCHRC suggested that Defendant Bookmeyer nominate Sandy Servantez, who had been volunteering as a friend of the commission for 2-years, which is the standard process for training new commissioners. Defendant Bookmeyer refused.
32. In June 2011, Bookmeyer appointed Defendant Stephen Palmer as a Commissioner for the MCHRC. Defendant Palmer, almost every month after his nomination, asked Plaintiff what they could do to make Defendant MCHRC more “transparent.” Plaintiff explained that this was impossible, in the same way he had frequently explained this to Defendant Bookmeyer. Both Defendants continued to ask Plaintiff about “transparency.”
33. On December 21, 2011, Councilmembers Marsters, Nelson and Weaver departed from Defendant’s City Council. Elected in their stead were Defendants Jean Marinos, John Lee, and Alex Kuhn, all of whom were supportive of Defendant Bookmeyer’s agenda. Defendant Marinos was the mayor of Mason City in 2004 and she signed a 28E Agreement between the MCHRC and Cerro Gordo County.
34. In early 2012, Defendant Bookmeyer appointed Defendant McNamara to be a MCHRC commissioner. Almost every month after his appointment, Defendant McNamara asked Plaintiff what they could do to make the MCHRC more “transparent.” Plaintiff explained the impossibilities of that request, as he had been doing with Defendants Bookmeyer and Palmer.
35. On November 6, 2012, Defendant Trout sent MCHRC a memo asking for information for the city council, including annual mediation resolutions in favor of the complainant vs. respondent, annual commission hearings in favor of the complainant vs. respondent, and annual court cases in favor of the complainant vs. the respondent.
36. On December 10, 2012, MCHRC Chairperson Kathye Gaines emailed Defendants Bookmeyer and Tornquist the finance information, including the MCHRC’s three funding sources: HUD, EEOC and city funds.
37. On December 12, 2012, Defendant Tornquist sent Gaines an extensive list of follow-up questions and asked about the impact of a $50,000 cut to Defendant Mason City’s investment of $143,199 and a “workforce reduction.” Defendant Tornquist knew exactly what a $50,000 budget cut would do.
38. On December 20, 2012, Defendant Bookmeyer refused to reappoint Gaines, the only commissioner who had graduated from the National Fair Housing Training Academy and who was certified as a HUD housing counselor..
39. On January 3, 2013, Defendant Bookmeyer is paraphrased in a Mason City Globe Gazette article, stating that he refused to reappoint Gaines because she did not “streamline” the operation as he had requested.
40. Defendant Bookmeyer did not have authority to oversee the MCHRC’s activities, nor to command that the MCHRC change its operating procedures.
41. On January 17, 2013, Cameron Sarjeant, the MCHRC’s new chairperson, submitted answers to Tornquist’s memo dated December 12, 2012.
42. In his report, Sarjeant explained that a $50,000 cut in the MCHRC’s budget would damage the MCHRC’s contractual relationships with HUD and EEOC and would “substantially impact the staffing arrangement and would devastate the Commission’s ability to operate, and lead to the elimination of our entire staff.”
43. On February 7, 2013, the City Council held a budget workshop and Defendant Tornquist proposed cutting funding to the MCHRC from $143,000 to $15,000. Defendant Bookmeyer led the meeting and the City Council, including Defendants agreed to cut the MCHRC budget to $15,000 as proposed.
44. On March 20, 2013, Defendant Tornquist interviewed with a radio station, KGLO. He claimed they cut the MCHRC budget because the city had to deal with complaints from all over the state. This is false and Defendant Tornquist knew it was false. In fact, only a few cases processed by the MCHRC come from outside of city limits and they are paid for by Federal funding, and not by “MC taxpayers.”
45. On March 20, 2013, Defendant Tornquist said that Plaintiff had been around “for a long time…none of us are going to live forever. He’s [Lionel Foster] on the tail end of his career, if for no other reason, because of his age. None of us are going to live forever.” He said that Plaintiff was “an issue” and that Plaintiff needed to be dealt with “sooner rather than later.”
46. As of July 1, 2013, Plaintiff, the only African American and oldest director of city government for Defendant City of Mason City, was terminated, after 41 years of service to Defendants Mason City and MCHRC.

COUNT — I

VIOLATION OF IOWA CODE CHAPTER 216 — RACE AND AGE DISCRIMINATION AND RETALIATION AGAINST ALL DEFENDANTS

7. Defendants discriminated against Plaintiff with respect to the terms and conditions of his employment on the basis of his age and race, and retaliated against Plaintiff, created a hostile work environment through racial harassment, and terminated Plaintiff in violation of the Iowa Civil Rights Act.
8. Defendants retaliated against Plaintiff by harassing and terminating Plaintiff after he participated in numerous civil rights investigations as the Director of the Mason City Human Rights Commission, in violation of the Iowa Civil Rights Act, Iowa Code Ch. 216.
9. Defendants engaged in a continuing pattern and practice of age discrimination, and race discrimination, and retaliation in violation of Iowa Civil Rights Act, Iowa Code Ch. 216.6.
10. As a direct and proximate result of Defendants’ acts aforesaid, Plaintiff has in the past and will in the future suffer mental and emotional harm, anguish, and disability, and has in the past and will in the future suffer loss of wages, loss of earning capacity, benefits, and other emoluments of employment.

WHEREFORE, Plaintiff demands judgment against Defendants, jointly and severally, in an amount that will fully and fairly compensate him for his injuries and damages, for attorney’s fees, for the costs of this action, for appropriate equitable and injunctive relief, and for such other relief as may be just in the circumstances and consistent with the purposes of the Iowa Civil Rights Act.

COUNT — II

INTERFERENCE WITH CIVIL RIGHTS UNDER THE IOWA CONSTITUTION AGAINST ALL DEFENDANTS

1. Defendants have deprived Plaintiff of his rights under and pursuant to the Constitution and the laws of the State of Iowa.
2. Defendants interfered with Plaintiff’s civil rights by discriminating against him on the basis of his race as set forth above.
3. Defendant Mason City was acting in its official capacity.
4. Defendants Bookmeyer, Trout, Marinos, Lee, Kuhn, Tornquist, Palmer, Soldberg, Hickey, Stanton, and McNamara were acting in their official and individual capacities at all times material hereto. Defendant Mason City is also liable for the acts of its agents, servants, and employees under the doctrine of respondeat superior.
5. Each individual Defendant acted under color of state law.
6. Defendants’ acts and omissions were the proximate cause of injury and damage to Plaintiff.
7. As a direct and proximate result of Defendants’ acts aforesaid, Plaintiff has in the past and will in the future suffer mental and emotional harm, anguish, and disability, and has in the past and will in the future suffer loss of wages, loss of earning capacity, benefits, and other emoluments of employment.
8. Defendants’ interference with the civil rights of Plaintiff was willful and wanton, and done with malice or in reckless disregard of the rights of Plaintiff, entitling him to punitive damages.

WHEREFORE, Plaintiff Lionel Foster requests judgment against Defendants in an amount which will fully and fairly compensate him for his injuries and damages, and for punitive damages against the individual defendants in an amount sufficient to punish the Defendants and deter the Defendants and others from the same or similar wrongful conduct, and for interest, attorney’s fees and costs as allowed by law.

COUNT — III

VIOLATION OF ARTICLE I, SECTION 6 OF THE CONSTITUTION OF THE STATE OF IOWA

9. Lionel Foster is afforded equal protection of the laws under Article I, Section 6 of the Constitution of the State of Iowa whereby, all laws of a general nature must have uniform operation and the general assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens.
10. Defendants City of Mason City, Mason City Human Rights Commission, Bookmeyer, Marinos, Lee, Kuhn, Tornquist, Palmer, Soldberg, Hickey, and McNamara, under color of law, prevented Plaintiff from securing equal protection of the laws afforded him under Article I, Section 6 of the Constitution of the State of Iowa, based on their termination of Plaintiff’s job, the only African American City Director, while white and younger individuals with equal or lesser job duties were retained.
11. Defendants City of Mason City, Mason City Human Rights Commission, Bookmeyer, Trout, Marinos, Lee, Kuhn, Tornquist, Palmer, Soldberg, Hickey, Stanton, and McNamara, under color of law, prevented Plaintiff from securing equal protection of the laws afforded him under Article I, Section 6 of the Constitution of the State of Iowa, based on Plaintiff’s termination on the basis of his race.
12. As a direct and proximate result of Defendants’ acts aforesaid, Plaintiff has in the past and will in the future suffer mental and emotional harm, anguish, and disability, and has in the past and will in the future suffer loss of wages, loss of earning capacity, benefits, and other emoluments of employment.
13. Defendants’ interference with the civil rights of Plaintiff was willful and wanton, and done with malice or in reckless disregard of the rights of Plaintiff, entitling him to punitive damages from the individual Defendants.

WHEREFORE, Plaintiff Lionel Foster requests judgment against Defendants in an amount which will fully and fairly compensate him for his injuries and damages, and for punitive damages against the individual Defendants in an amount sufficient to punish the Defendants and deter the Defendants and others from the same or similar wrongful conduct, and for interest, attorney’s fees and costs as allowed by law.

COUNT IV

DENIAL OF EQUAL PROTECTION-ARTICLE I, § 6 OF THE IOWA CONSTITUTION

4. The Iowa Constitution guarantees all persons equal protection of the laws.
5. Defendants, through its agents, servants and employees, in their individual and official capacities, allowed retaliation against Plaintiff for participating in and investigating civil rights claims.
6. The policy practice or custom of Defendants allowed its agents, servants and employees to retaliate against Plaintiff secure in the knowledge that they would not be punished.
7. Defendants deprived Plaintiff of equal protection of the laws, by establishing, maintaining, and/or enforcing policies that allowed Defendants to retaliate against Plaintiff, and to terminate his employment.
8. The deprivation of Plaintiff’s Equal Protection guarantee found in the Iowa Constitution was the direct result of the policy, practice or custom of the Defendants.
9. Discrimination based on race is subject to strict scrutiny under the Iowa Constitution and therefore is not permitted.
10. Defendant’s decision to retaliate against and to terminate Plaintiff had a disparate impact on Plaintiff, who was the only African American director who worked for Defendants City of Mason City and MCHRC.
11. The course of conduct taken by or attributable to Defendants is not tailored to further any substantial or compelling interest. Accordingly, their conduct violates the Equal Protection guarantee found in the Iowa Constitution.
12. As a proximate result of Defendants’ acts aforesaid, the Plaintiff has in the past and will in the future suffer mental and emotional harm and anguish, humiliation, embarrassment, anxiety, fear, inconvenience, loss of enjoyment of life, despair, dejection, discouragement, degradation, disgrace, aggravation, uncertainty, apprehensiveness, exasperation, grief, despondency, restlessness, confusion, dismay, tension, and unease, and has in the past and will in the future suffer loss of wages and benefits, incur medical/counseling/drug costs, loss of earning capacity, benefits, and other emoluments of employment.
13. Defendants’ denial of Plaintiff’s rights under Article I, Section 6 of the Constitution of the State of Iowa was willful and wanton, and done with malice or in reckless disregard of the rights of Plaintiff, entitling him to punitive damages.

WHEREFORE, Plaintiff requests judgment against Defendants in an amount that will fully and fairly compensate him for his injuries and damages, and for punitive damages against the individual Defendant’s in an amount sufficient to punish the Defendants and deter the Defendants and others from the same or similar wrongful conduct, and for interest, attorney’s fees and costs as allowed by law.

COUNT V

DENIAL OF RIGHT TO PROCEDURAL AND SUBSTANTIVE DUE PROCESS-IOWA STATE CONSTITUTION ARTICLE I, § 9

4. The Iowa Constitution guarantees that no person shall be deprived of life, liberty, or property, without due process of law.
5. Defendants, through its agents, servants and employees, allowed officers with apparent legal authority to retaliate against Plaintiff for investigating civil rights claims to protect others from racial harassment.
6. The policy practice or custom of Defendants allowed its agents, servants and employees to retaliate against Plaintiff secure in the knowledge that they would not be punished.
7. Plaintiff was denied the right to continue to work as a city director in retaliation because of his investigations of civil rights claims.
8. The deprivation of Plaintiff’s fundamental rights was the direct result of the policy, practice or custom of the Defendants.
9. Defendants deprived Plaintiff of rights to which he was entitled under the Due Process clause of the Constitution of the State of Iowa.
10. As a proximate result of Defendants’ acts aforesaid, the Plaintiff has in the past and will in the future suffer mental and emotional harm and anguish, humiliation, embarrassment, anxiety, fear, inconvenience, loss of enjoyment of life, despair, deject ion, discouragement, degradation, disgrace, aggravation, uncertainty, apprehensiveness, exasperation, grief, despondency, restlessness, confusion, dismay, tension, and unease, and has in the past and will in the future suffer loss of wages and benefits, incur medical/counseling/drug costs, loss of earning capacity, benefits, and other emoluments of employment.
11. Defendants’ denial of Plaintiff’s rights under the Constitution of the United States was willful and wanton, and done with malice or in reckless disregard of the rights of Plaintiff, entitling him to punitive damages.

WHEREFORE, Plaintiff requests judgment against Defendants in an amount which will fully and fairly compensate him for his injuries and damages, and for punitive damages against the individual Defendant’s in an amount sufficient to punish the Defendants and deter the Defendants and others from the same or similar wrongful conduct, and for interest, attorney’s fees and costs as allowed by law.

JURY DEMAND

COMES NOW, Plaintiff Lionel Foster, and demands trial by jury as to all counts.

_________________________________

ROXANNE BARTON CONLIN

ROXANNE CONLIN & ASSOCIATES, P.C.

The Griffin Building

319 Seventh Street, Suite 600

Des Moines, IA 50309

ATTORNEYS FOR PLAINTIFF

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SUED: