United States v. Solorio-Menera

1 The Honorable Ronald E. Longstaff, Chief Judge, United States District
Court for the Southern District of Iowa.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-1752
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Raymond Zbylut, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Harvey’s Iowa Management Co., Inc., *
Harvey’s Casino, *
*
Appellees. *
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Submitted: December 22, 2003
Filed: March 25, 2004
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Before RILEY, McMILLIAN, and SMITH, Circuit Judges.
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RILEY, Circuit Judge.
Raymond Zbylut (Zbylut) appeals the district court’s 1 adverse grant of
summary judgment in his wrongful discharge action. We affirm.
In October 1997 Zbylut began working for Harvey’s Iowa Management
Company (Harvey’s) as a licensed assistant engineer on Harvey’s casino vessel.

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Zbylut’s duties included filling out engine-room log books. Zbylut presented
evidence that when there were not enough engine utilitymen working to comply with
the vessel’s Coast Guard Certificate, Zbylut’s supervisors ordered him to call the pilot
house and obtain an employee name to put in the log book, even though the employee
was not actually working in the engine room. Zbylut contends that falsifying log
entries violates 46 U.S.C. § 8101 (addressing manning of vessels). Zbylut first
complained about falsifying the log books about four months after starting work at
Harvey’s. His supervisors ordered him to continue falsifying the log books.
Thereafter, Zbylut alleges his supervisors harassed him.
According to Zbylut, on numerous occasions Zbylut’s immediate supervisor
made demeaning comments about Filipino women in front of Zbylut, knowing that
Zbylut’s wife was Filipino and that Zbylut was president of a local Philippine-
American organization. Further, Zbylut’s supervisors refused to forward to Harvey’s
Human Resources Department Zbylut’s request for a review of his log falsification
complaints, refused to allow him to return early from a Family and Medical Leave
Act leave, denied him a requested raise, chastised him for ordering pizza, used
obscenities in telling him he could not take leftover pizza home to his wife, and were
generally unfriendly to him.
In July 1999 Zbylut told supervisory personnel he was contemplating leaving
Harvey’s due to the harassment arising out of his complaints regarding the log books,
as well as management’s failure to follow up on his complaints. Zbylut resigned in
September 1999 and later filed the instant action. Invoking general maritime law and
“borrowing from” Iowa law, Zbylut claimed he was constructively discharged for
resisting orders to falsify log entries.
The district court granted Harvey’s summary judgment, concluding Zbylut had
not stated a private claim under admiralty law, and the alleged harassing conduct did
not render Zbylut’s work environment adequately hostile to bring a constructive

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discharge claim under Iowa law. On appeal, Zbylut argues he created a genuine issue
of fact as to his state constructive discharge claim, and the district court erred in not
considering evidence he resigned because he was required to engage in illegal
conduct. He does not challenge the court’s conclusion that admiralty law does not
provide him with a private cause of action.
We review de novo the grant of summary judgment, viewing the evidence in
the light most favorable to Zbylut. See Britton v. U.S.S. Great Lakes Fleet, Inc., 302
F.3d 812, 815 (8th Cir. 2002). Initially, we conclude admiralty law did not preempt
Zbylut’s state wrongful discharge claim. See Am. Dredging Co. v. Miller, 510 U.S.
443, 446-47 (1994) (admiralty law does not preempt state remedies so long as state
court does not attempt to change substantive maritime law); cf. Ellenwood v. Exxon
Shipping Co., 984 F.2d 1270, 1274, 1280 (1st Cir. 1993) (nothing in maritime law is
at odds with state human rights statutes regarding handicapped rights); Clements v.
Gamblers Supply Mgmt. Co., 610 N.W.2d 847, 850 (Iowa 2000) (en banc) (maritime
law would not be frustrated by state retaliatory discharge claims).
To prevail on a tort claim for a discharge in violation of public policy, an
employee must show (1) a clearly defined public policy protected an activity; (2) the
policy was undermined by discharging the employee; (3) the discharge was the result
of engaging in the protected activity; and (4) there was no other justification for the
discharge. See Davis v. Horton, 661 N.W.2d 533, 535 (Iowa 2003).
We discern no clearly defined public policy protecting Zbylut’s activity. First,
federal maritime law does not provide a clear public policy against violating section
8101. See Meaige v. Hartley Marine Corp., 925 F.2d 700, 702-03 (4th Cir. 1991) (no
private right of action under general maritime law for retaliatory discharge due to
seaman’s refusal to carry out assignment that allegedly would violate federal safety
statute); Feemster v. BJ-Titan Servs. Co./Titan Servs., Inc., 873 F.2d 91, 93 (5th Cir.

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1989) (no private cause of action on public policy exception under employment-at-
will doctrine for refusing job assignment that would violate 46 U.S.C. § 8104(h)).
Second, although Iowa recognizes a public policy against terminating an
employee who refuses to violate the law, see Borschel v. City of Perry, 512 N.W.2d
565, 568 (Iowa 1994); Smuck v. Nat’l Mgmt. Corp., 540 N.W.2d 669, 673 (Iowa Ct.
App. 1995) (“it is contrary to public policy to fire an employee for refusing to break
any law, be it state or federal”), Zbylut never refused to falsify the log books, nor did
he complain to the Coast Guard. Further, Zbylut was not actually discharged. Put
simply, the evidence indicates Zbylut voluntarily left his employment after
continually, albeit reluctantly, violating the law. We decline to extend Iowa’s narrow
public policy exception to encompass Zyblut’s circumstances. See Fitzgerald v.
Salsbury Chem. Inc., 613 N.W.2d 275, 282-83 (Iowa 2000) (en banc) (public policy
exception to employment-at-will doctrine is limited to cases involving well
recognized and clearly defined public policies).
Accordingly, we affirm the well reasoned opinion of the district court.
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