                   IN THE COURT OF APPEALS OF IOWA

                                 No. 19-0652
                              Filed April 1, 2020


TROY KLEPPE,
     Plaintiff-Appellant,

vs.

FORT DODGE POLICE DEPARTMENT and CITY OF FORT DODGE, IOWA,
     Defendants-Appellees.
________________________________________________________________


      Appeal from the Iowa District Court for Webster County, Adria Kester,

Judge.



      A former police officer appeals the judicial review of his claim for unpaid

wages. AFFIRMED.



      Judd Parker and Blake Parker of Parker Law Office PLLC, Adel, for

appellant.

      Ryan A. Kehm and Mark R. Crimmins of Crimmins & Kehm Law Firm, Fort

Dodge, for appellee.



      Heard by Tabor, P.J., and Mullins and Schumacher, JJ.
                                              2


     TABOR, Presiding Judge.

            Former police officer Troy Kleppe appeals the grant of summary judgment

     to the Fort Dodge Police Department and the city of Fort Dodge (collectively, the

     “City”) on a wage claim under Iowa Code chapter 91A (2018). Kleppe claims the

     City owes him overtime pay for work as a police canine handler and trainer. The

     district court found Kleppe failed to exhaust the administrative remedies under the

     public employees’ collective bargaining agreement (CBA).

            After reviewing the record and arguments, we find no error in the district

     court’s determination that no issues of material fact exist and the City was entitled

     to judgment as a matter of law. Because Kleppe had to exhaust the administrative

     procedures offered in the CBA and failed to do so, we affirm.

I.      Facts and Prior Proceedings

            Kleppe worked for the Fort Dodge Police Department. As a member of the

     union, his employment was covered by the CBA between the City and the Public

     Professional and Maintenance Employees Local Union. In July 2016, he became

     a canine handler for the police department. He held that position until February

     2018 when his employment ended.           Kleppe received his last paycheck on

     February 9, 2018.

            On March 13, Kleppe discussed his wages with his union representative.

     Then, on March 23, that representative filed a grievance claiming the City failed to

     pay Kleppe overtime wages for time he spent training the police dog. That same

     day, the City responded—denying the grievance as untimely.            The City also

     directed Kleppe’s attention to the CBA provision permitting canine handlers twelve

     hours of flex time per month for the care and training of the dog. Kleppe did not
                                         3


appeal the denial of his grievance to the mayor’s designee, as described in the

CBA.

       Instead, following the City’s denial, Kleppe sued in the district court for

unpaid wages under Iowa Code chapter 91A. Although he had never before

demanded overtime wages, Kleppe claimed he worked unpaid vacation hours for

the police department.1 According to Kleppe, he spent significant time on his days

off training the dog to meet both state and national certification requirements, and

those efforts exceeded the twelve flex hours the CBA granted canine handlers.

       After its initial answer, the City filed an amendment raising the affirmative

defense of failure to exhaust grievance procedures in the CBA. The City then

moved for summary judgment.         According to the City’s motion, Kleppe first

mentioned unpaid hours in his grievance filed on March 23, more than a month

after the termination of his employment. The City rested its motion on procedural

grounds.2 Because Kleppe’s grievance was untimely and he did not follow the




1Kleppe estimated that since July 2016, he worked an extra 178 hours of overtime.
He alleged the City owed him $7512.
2 In its original response to the grievance, the City also offered a substantive

explanation for denying Kleppe’s claim:
        In reference to Article 6, Section 11, Troy received 12 hours flex time
        each month he was assigned the duties of Canine Handler. This flex
        time was provided for all time spent with the dog, which includes the
        daily care, upkeep, and all training of the dog for official certification.
        No additional compensation is due for any time spent with the dog
        on his days off. All Canine Handlers are treated in the same manner
        and only earn 12 hours flex time per month for the daily care, upkeep,
        and all training of the dog. The City believes Troy was fully
        compensated for his Canine Handler duties, in accordance with the
        collective bargaining agreement, and he was paid in full for all other
        documented time recorded on his timesheets.
                                          4


CBA’s grievance procedure, the City argued he did not exhaust administrative

remedies and could not go to district court.

       The district court granted summary judgment.           In its ruling, the court

“adopt[ed] the background facts and proceedings as set forth in [the City’s] Brief

and Memorandum of Authorities in Support of Motion for Summary Judgment;

including the Statement of Undisputed Facts and Reply Brief.” The court also

adopted the City’s “legal analysis in its filing and pleadings.”

       Most significantly, the court found Kleppe had to follow the grievance

procedure in the CBA. And he failed to do so.

       Kleppe did not exhaust his grievance remedy under the CBA. He did
       not appeal the denial. Kleppe failed to exhaust his contractual
       remedies as required in the CBA. He therefore could not bring a
       separate contractual action based on a [chapter] 91A claim against
       [the City]. The Court FINDS that the law requires summary
       disposition of this matter in favor of [the City].

       Kleppe appeals.

II.    Scope of Review

       When a party challenges summary judgment, we review for correction of

legal error. Albaugh v. The Reserve, 930 N.W.2d 676, 682 (Iowa 2019).

III.   Discussion

       We begin with the well-known standards for summary judgment. A court

may grant summary judgment “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact, and that the moving party is

entitled to judgment as a matter of law.” Iowa R. Civ. P. 1.981(3). A “genuine

issue of material fact” exists if “the evidence is such that a reasonable jury could
                                           5

return a verdict for the nonmoving party.” Fees v. Mut. Fire & Auto. Ins. Co., 490

N.W.2d 55, 57 (Iowa 1992). We view the evidence in the light most favorable to

Kleppe as the nonmoving party. Geisler v. City Council of Cedar Falls, 769 N.W.2d

162, 165 (Iowa 2009).

       A. No Material Facts in Issue

       Kleppe contends the district court improperly made findings of contested

fact in its summary judgment ruling. In particular, he asserts the court’s threshold

conclusion that his claim arises from the CBA was itself a finding of fact.

       Two passages from the CBA are relevant. The first describes the “flex time”

available for police canine handlers. Article 6, Section 11 of the CBA says, “The

Canine Handler shall receive twelve hours flex time per month for the daily care,

upkeep, and training of the dog.”

       The second relevant part, Article 16, describes the grievance procedure:

               Section 1. The term Grievance shall mean a dispute between
       the parties as it relates to the terms of this agreement. A Grievance
       shall be handled in the following manner.
               (a) The grievance must be brought to the attention of the Chief
       within five (5) days of its alleged occurrence …
               (b) The Chief or the individual in command in the absence of
       the Chief . . . shall have five (5) days in which to answer the
       grievance.
               (c) The aggrieved Party may appeal the decision in Step (b)
       to the Mayor’s designee for the City. This must be done in writing
       within five (5) days after the Chief has given his response.
               (d) The Mayor’s designee will have seven (7) days in which to
       answer the grievance.
               (e) If the grievance has not been resolved after Step (d), the
       Union may within five (5) days request binding arbitration as
       prescribed in the Iowa Public Employment Relations Act. Arbitration
       costs shall be shared equally by the parties.
               The City and the Union, by mutual agreement, may request
       mediation to help bring resolution to the grievance . . . . If the parties
       cannot agree upon a mediator, they shall request that PERB [Public
       Employment Relations Board] appoint a mediator. . . .
                                            6


              (f) The Time limits specified in the grievance procedure shall
        exclude Saturdays and Sundays and observed holidays . . . .
              (g) . . . .
              The time limits hereinabove are to be strictly construed and
        each party will make every effort to settle the grievance equitably at
        each step.

        Kleppe first communicated his complaint about unpaid wages to his union

representative, Mark Hubbard, on March 13, 2018. Hubbard wrote to the City’s

human resources director, Jamie Anderson: “I was contacted by Troy Kleppe about

filing a grievance with the department in reference to uncompensated training time

for the canine” as well as another pay issue. Hubbard said,

        Based on his accusations he wants to file a grievance on the
        following violation of the contract.
               ....
               Article 6 section 11: Not receiving full compensation for
        training of the canine on his days off that were in excess of the 12
        hours allotted of flex time for training of the canine for certification of
        the canine. Troy states that he spent several hours of his time on his
        days off training the canine for official certification.

In addition, in his petition at law, Kleppe acknowledged the CBA governed his

employment.      He then alleged the City “violated the Iowa Wage Payment

Collection Act by willfully and intentionally failing to pay Plaintiff his wages when

due.”

        In an about face, Kleppe now insists his claim did not arise under the CBA

but from a free-standing right outside the agreement. He acknowledges the CBA’s

clause allowing canine handlers twelve hours of flex time, but he asserts his claim

goes beyond the CBA because it deals with a wage claim for time spent training

the dog beyond those guaranteed twelve hours.

        Even with those mental gymnastics, Kleppe cannot escape the fact the CBA

delineated the wages owed police employees, including canine handlers, as well
                                          7


as the available overtime for other types of officers. It established how officers are

paid overtime and required the employer to maintain overtime records for each

employee. Because Kleppe’s claim for unpaid wages deals directly with a subject

the CBA repeatedly addresses, the district court properly concluded Kleppe’s

claims arose under the CBA. To calculate how much Kleppe is owed, or to analyze

whether Kleppe’s overtime work was proper and required payment, the court had

to address the CBA’s provisions. We reject Kleppe’s argument that the court’s

conclusion amounted to improper fact finding. See generally UE Local 893/IUP v.

State, 928 N.W.2d 51, 61 (Iowa 2019) (explaining legislature conferred subject

matter jurisdiction on courts to enforce CBAs under Iowa Code section 20.17(5)).

       Because Kleppe identifies no other disputed details, we find no error in the

district court’s conclusion that no genuine issues of material fact existed.

       B. Requirement to Exhaust Administrative Remedies

       The crux of this appeal is whether Kleppe had to exhaust his administrative

remedies before bringing his wage claim in the district court.

       To start, the City’s exhaustion argument springs from Iowa Code chapter

20, which governs the grievance process for public employees under CBAs.

Section 20.17(5) allows an employee to enforce the CBA’s terms in a civil action.

Steele v. State of Iowa Dep’t of Corr., 462 N.W.2d 299, 300 (Iowa Ct. App. 1990).

But section 20.18 sets out procedures the employee must follow before that civil

action is allowed. Id. The City contends Kleppe cannot prevail because he ignored

the mandates of chapter 20.

       At the same time, as Kleppe notes, the legislature has provided a civil cause

of action for unpaid wages in Iowa Code chapter 91A. Kleppe emphasizes that
                                            8

“chapter 91A is a remedial statute.” See Hornby v. State, 559 N.W.2d 23, 26 (Iowa

1997). Thus, it is “to be liberally construed” to “facilitate the public policy of allowing

employees to collect wages owed to them by their employers.” Id.

       The Iowa Wage Payment Collection Act allows claims under these

circumstances:

       When it has been shown that an employer has intentionally failed to
       pay an employee wages or reimburse expenses pursuant to section
       91A.3, whether as the result of a wage dispute or otherwise, the
       employer shall be liable to the employee for any wages or expenses
       that are so intentionally failed to be paid or reimbursed, plus
       liquidated damages, court costs and any attorney’s fees incurred in
       recovering the unpaid wages and determined to have been usual and
       necessary. In other instances the employer shall be liable only for
       unpaid wages or expenses, court costs and usual and necessary
       attorney’s fees incurred in recovering the unpaid wages or expenses.

Iowa Code § 91A.8. Kleppe contends his claim relies solely on chapter 91A.

       To mediate between these two positions, we look to three cases: Hartunian

v. Kirkwood Community College, No. 12-0440, 2012 WL 6193870, at *1 (Iowa Ct.

App. Dec. 12, 2012); Harrison v. State, No. 08-0384, 2008 WL 5412265, at *1

(Iowa Ct. App. Dec. 31, 2008); and Steele, 462 N.W.2d at 299.3 The City finds

support in these cases discussing chapter 20, while Kleppe argues they are

distinguishable from the facts in his case.

       In Hartunian, a college professor covered under a CBA alleged she was

unfairly excluded from consideration for a new faculty position. 2012 WL 6193870,

at *1. She sought declaratory judgment and an injunction requiring the college to

delay its hiring decision until it properly advertised the position. Id. at *2. The


3 The district court ruling discusses only Harrison, 2008 WL 5412265, at *1, but
because the ruling adopts the rationale provided by the City in its pleadings, we
discuss the other cases on which the City relies.
                                          9


district court granted summary judgment to the college. The court decided the

dispute fell within the CBA and Hartunian did not follow the formal grievance

procedures outlined there. Id. So she could not bring the matter before the district

court.    Id.   Our court agreed, finding the claim was governed by the CBA.

Therefore, Hartunian had to exhaust the grievance procedures. Id. at *4.

         Kleppe echoes Hartunian’s assertion—that his claim is outside the bounds

of the CBA and brought as an independent cause of action. Id. at *2. He argues

that, unlike Hartunian, we need not interpret the CBA to rule on this case because

he is raising a statutory claim that doesn’t involve contract interpretation. We reject

that argument. Kleppe’s wage claim is not enforceable without reference to the

CBA, which sets out what he may receive as compensation from the City. We find

our decision in Hartunian provides useful guidance here.

         Similarly, in Steele, an employee followed all CBA grievance procedures up

until binding arbitration. 462 N.W.2d at 299. Because she did not want to arbitrate,

Steele withdrew her grievance and sued. Id. The district court determined she

had not exhausted the administrative remedies required by the CBA. Id. Our court

reversed noting, under section 20.18, “arbitration may be invoked only with the

approval of the public employee.” Id. at 300. Because the legislature did not intend

to include arbitration as a necessary grievance procedure without an employee’s

approval, it was unnecessary to exhaust that step to file suit. Id. at 300. We

reversed the summary judgment and remanded to reinstate the petition. Id. But

in doing so, we reiterated section 20.18 sets out procedures that must be followed

before going to court. Id. Kleppe did not reach the point of arbitration. Much

earlier, he departed the administrative track. Kleppe did not file a timely grievance,
                                         10

and he did not appeal the denial of his grievance as untimely. So while Steele has

limited application to Kleppe’s situation, what it does establish is an employee must

exhaust every step in the CBA grievance procedure—up to arbitration—before

resorting to district court.

       Finally, we turn to the case most on point—Harrison, 2008 WL 5412265,

at *1. Like Kleppe, Harrison asserted a claim for unpaid wages under chapter 91A

(among other claims). Harrison timely filed a grievance and followed each step of

the procedure until the CBA called for arbitration. Id. The union representing

Harrison refused to arbitrate on his behalf. Id. Harrison filed a breach-of-contract

claim alleging the State terminated his employment without just cause. Id. The

district court granted the State’s motion for summary judgment finding Harrison

failed to exhaust administrative remedies. Id. at *2. Our court held “if a public

employee is covered by a CBA and the CBA sets forth grievance procedures, the

employee is required to follow said procedures.”        Id. at *3 (citing Iowa Code

§ 20.18).    Because Harrison could not show he exhausted his contractual

remedies (or that the union breached its duty of fair representation in refusing to

arbitrate), he could not bring a separate contract claim. Id. at *3, *5.

       Kleppe tries to distinguish Harrison. He notes Harrison elected to arbitrate

rather than going to district court. Kleppe is correct—to an extent. Reading

Harrison together with Steele, it is clear an employee cannot be forced into

arbitration. See Iowa Code section 20.18(1); Harrison, 2008 WL 5412265, at *2;

Steele, 462 N.W.2d at 300. But the provision requiring an employee to approve

arbitration does not apply to the earlier steps in the CBA grievance procedure.

Once Harrison chose arbitration, he had to see it through, but the rest of the
                                       11

grievance procedure was mandatory. Id. Like the district court, we find Harrison

particularly persuasive. Kleppe had to exhaust his administrative remedies under

the CBA, even if he had a wage claim under chapter 91A.

      Beyond Steele, Hartunian, and Harrison, the parties debate the import of

another case interpreting chapter 20—Stammeyer v. Division of Narcotics

Enforcement, 721 N.W.2d 541 (Iowa 2006). There, our supreme court found a

state employee who tried to bypass administrative procedures and file a claim

under chapter 35C, which mandates a veteran’s preference in public hiring, could

not sue in district court. Stammeyer, 721 N.W.2d at 548–49. The supreme court

found the preference under chapter 35C applied to new hires and not transfers

within an agency. Id. at 546. Accordingly, Stammeyer’s only claim was under the

CBA; he could not proceed in district court because he did not exhaust the

grievance procedure. Id. at 547.

      Kleppe argues his case differs from Stammeyer because chapter 91A is the

only statutory way for employees to collect back wages and should supersede the

grievance procedure in the CBA. See id. at 544 (“Chapter 20 places one important

limitation on the scope of collective bargaining agreements. It ensures that Iowa

statutes supersede terms in a collective bargaining agreement that are

inconsistent with Iowa law.”).     But his argument stops short.      It does not

acknowledge his CBA with the City governs his wages and hours.               As in

Stammeyer, we find no inconsistency between the CBA and Iowa law that would

allow Kleppe to bypass the grievance procedures. See id. at 546–47.

      All in all, the relevant cases do not persuade us that a chapter 91A claim is

exempt from the general prohibition on seeking resolution in district court before
                                         12


exhausting administrative remedies provided in a CBA. Even construing the wage

claim act liberally because of its remedial nature, we find no blanket exemption

from the exhaustion requirement.

       With that finding, we could end our review of the district court’s ruling on

exhaustion. Except, for the first time on appeal, Kleppe advances a separate

framework for deciding whether he can go directly to district court. He now argues

the court should have applied the two-factor test from Riley v. Boxa, 542 N.W.2d

519, 521 (Iowa 1996). Under that test, Kleppe need not exhaust administrative

remedies if (1) no adequate administrative remedy exists for the claimed wrong, or

(2) the governing statutes do not expressly or impliedly require exhaustion. See

Hawkeye Land Co. v. Franklin Cty. Wind LLC, No. 12-1568, 2013 WL 2371355, at

*4 (Iowa Ct. App. May 30, 2013) (quoting Riley, 542 N.W.2d at 521). An exception

applies if exhaustion of the grievance procedure would have been fruitless. Id.

       The City insists Kleppe cannot use this test on appeal because he did not

urge that framing in the district court.4 Not surprisingly, without the benefit of

Kleppe’s argument, the district court did not employ that test. It is true, typically

issues must be raised and decided by the district court before we consider them

on appeal. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). But Kleppe

contends he preserved the issue because the district court addressed exhaustion

in general. He contends presenting a new legal theory, rather than a new issue,

on appeal does not violate rules of error preservation.


4 Counsel for the City also asserted during oral argument that the Riley test applied
in the context of judicial review from final agency action, but not to the question of
exhaustion of remedies under a CBA. We assume without deciding the Riley test
may apply to the exhaustion question in this appeal.
                                         13


       Ideally, Kleppe would have handed the district court the same yardstick to

measure his claim as he now wields on appeal. But we agree with his contention

that we can consider his legal briefing on appeal. See Bartlett Grain Co., LP v.

Sheeder, 829 N.W.2d 18, 24 n.4 (Iowa 2013) (rejecting error preservation

argument when party alerted district court to “essential claim”).

       On the first prong of the Riley test, Kleppe argues the CBA lacks an

adequate remedy because chapter 91A presents broader avenues for relief. We

reject that argument. The CBA governs what compensation Kleppe may receive

for his work as a canine handler. The administrative procedures would have

addressed Kleppe’s wage claim, even if Kleppe did not like the outcome.5 Kleppe

also contends he could not seek court costs, attorney fees, and liquidated

damages on the administrative route. But he would not incur those costs or fees

while the union represented him and before filing in district court.          “An

administrative remedy is not inadequate simply because a party . . . may not

receive everything he or she wants.” Riley, 542 N.W.2d at 521.

       On the second prong of the Riley test, Kleppe interprets chapter 91A as

signaling no legislative intent to require exhaustion under the CBA. He points out

section 91A.10(1) envisions a remedy through the department of labor.        And

section 91A.10(3) provides for the civil right of action. Kleppe suggests a worker

may pursue both remedies concurrently.




5 In its initial response to his untimely grievance, the City told the union
representative that Kleppe had no right to compensation beyond the twelve
monthly flex hours for the canine training.
                                         14


       But we must read chapter 91A along with chapter 20. That other governing

statute does require exhaustion. See Iowa Code § 20.18(2) (mandating public

employees follow grievance procedures provided in CBAs). We contrast these

circumstances with Walsh v. Wahlert, 913 N.W.2d 517 (Iowa 2018). There, our

supreme court found Iowa Code section 8A.415, which provided an administrative

grievance procedure for department of administrative services employees, did not

expressly require exhaustion of administrative remedies before filing a civil action

under Iowa Code section 70A.28, the Iowa whistleblower statute. Walsh, 913

N.W.2d at 524–25. Walsh is different because the grievance procedure applied to

all employees except those covered by a CBA that provided otherwise. See Iowa

Code § 8A.415(1)(a). So section 20.18(2) did not apply to those employees.

       In a final nod to Riley, Kleppe contends exhaustion of the grievance

procedure would have been fruitless for him. Thus the exception applies. In his

view, had he followed the CBA procedure, he would have appealed the City’s initial

denial, been denied again, declined arbitration, and then ended up in district court.

We reject Kleppe’s futility argument. We cannot presume the City would be biased

or unprofessional in its handling of a worker’s grievance. See Sierra Club Iowa

Chapter v. Iowa Dep’t of Transp., 832 N.W.2d 636, 647–48 (Iowa 2013) (rejecting

plaintiff’s argument it would be futile to ask agency to reverse its own decision).

       Following our survey of the statutory framework for public employee

grievances and the relevant caselaw, we are persuaded Kleppe had an obligation
                                              15


to pursue and exhaust all administrative remedies provided in the CBA before filing

in the district court under chapter 91A.6

       C. Did Kleppe Exhaust Administrative Remedies?

       Having decided the exhaustion requirement applies to Kleppe’s wage claim,

we must ask if he met that requirement. The CBA mandates that employees bring

their grievances to the attention of the police chief within five days of its alleged

occurrence.7 The chief has five days to respond. Employees may appeal to the

mayor in writing within five days. The mayor has seven days to answer. After that,

the union may request binding arbitration within five days. The CBA provides the

time limits “are to be strictly construed.”

       Kleppe missed the very first deadline.      He received his last paycheck

February 9. He spoke to Hubbard on March 13, and Hubbard submitted the

grievance ten days later. Thus, Kleppe brought the grievance to his employer’s

attention more than one month after his final paycheck, far outside the five days

prescribed. The City denied Kleppe’s claim as untimely, though the City offered

an explanation on the merits as well. Kleppe failed to appeal as the next step in



6   As a final issue, Kleppe notes chapter 91A contains a two-year statute of
limitations. See Iowa Code § 614.1(8). He also points out the federal Fair Labor
Standards Act (FSLA) has a three-year statute of limitations if the employee can
prove the employer willfully violated the statute. See 29 U.S.C. § 255(a). He
argues chapter 91A’s statute of limitations supersedes the five-day limitation in the
CBA. We disagree. The statute of limitations for a civil filing is different from the
filing of an employment grievance. And section 20.18(2) instructs public
employees to follow CBA provisions. We read that section as compatible with
chapter 91A and see no conflict with the limitations period for filing suit.
7 Both parties appear to agree it was adequate for Kleppe to bring his claim first to

the attention of his union representative rather than the chief of police. Similarly,
the parties seem to agree the City’s human resources director was the correct
person to respond to the initial grievance.
                                        16


the grievance procedure. As the district court decided, Kleppe’s delay and inaction

precluded his suit in district court. We find no error in the court’s conclusion he

failed to exhaust administrative remedies. Under these circumstances, the City

was entitled to judgment as a matter of law. We affirm the grant of summary

judgment.

      AFFIRMED.
