United States District Court, N.D. Iowa, Western Division
MEMORANDUM OPINION AND ORDER ON MOTION FOR SUMMARY
Leonard T. Strand, Chief Judge.
matter is before me on (1) a motion (Doc. No. 39) for summary
judgment filed by defendant Brent Burns and (2) a motion
(Doc. No. 40) for summary judgment filed by defendants
Auto$mart, Inc., Kenneth Kemna (Kenneth), Kemna Motor Company
(Kemna Motor) and Brent Weringa. Plaintiff Jennifer Paskert
has filed resistances (Doc. Nos. 55, 57) to both motions and
the defendants have filed replies (Doc. Nos. 60, 61, 62).
Oral argument is not necessary. See N.D. Iowa L.R.
commenced this action by filing a complaint (Doc. No. 2) on
January 31, 2017. She filed a first amended complaint (Doc.
No. 11) on April 13, 2017, and a second amended complaint
(Doc. No. 31) on April 26, 2018. Based on these amendments,
Burns, Weringa, Kenneth, Auto$mart, Inc., and Kemna Motor are
the five named defendants.
alleges that she was subjected to a hostile work environment
and harassment on the basis of sex by her supervisor, Burns,
while she was employed by Auto$mart, Inc., from May to
November 2015. Id. at ¶¶ 14-22. Paskert
asserts claims for hostile work environment discrimination
and retaliation in violation of both Title VII of the Civil
Rights Act of 1964 and the Iowa Civil Rights Act (ICRA).
Id. at ¶¶ 23-39. Trial is scheduled to
begin February 11, 2019.
SUMMARY JUDGMENT STANDARDS
party may move for summary judgment regarding all or any part
of the claims asserted in a case. Fed.R.Civ.P. 56(a). Summary
judgment is appropriate when “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 a judgment as a matter of
law.” Celotex Corp. v. Catrett, 477 U.S. 317,
material fact is one “that might affect the outcome of
the suit under the governing law.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus,
“the substantive law will identify which facts are
material.” Id. Facts that are
“critical” under the substantive law are
material, while facts that are “irrelevant or
unnecessary” are not. Id. “An issue of
material fact is genuine if it has a real basis in the
record, ” Hartnagel v. Norman, 953 F.2d 394,
395 (8th Cir. 1992) (citing Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)), or
“when ‘a reasonable jury could return a verdict
for the nonmoving party' on the question, ”
Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990
(8th Cir. 2005) (quoting Anderson, 477 U.S. at 248).
Evidence that only provides “some metaphysical doubt as
to the material facts, ” Matsushita, 475 U.S.
at 586, or evidence that is “merely colorable” or
“not significantly probative, ”
Anderson, 477 U.S. at 249-50, does not make an issue
of material fact genuine. Put another way,
“‘[e]vidence, not contentions, avoids summary
judgment.'” Reasonover v. St. Louis Cnty.,
447 F.3d 569, 578 (8th Cir. 2006) (quoting Mayer v.
Nextel W. Corp., 318 F.3d 803, 809 (8th Cir. 2003)). The
parties “may not merely point to unsupported
self-serving allegations.” Anda v. Wickes Furniture
Co., 517 F.3d 526, 531 (8th Cir. 2008).
such, a genuine issue of material fact requires
“sufficient evidence supporting the claimed factual
dispute” so as to “require a jury or judge to
resolve the parties' differing versions of the truth at
trial.” Anderson, 477 U.S. at 249 (quotations
omitted). The party moving for entry of summary judgment
bears “the initial responsibility of informing the
district court of the basis for its motion and identifying
those portions of the record which show a lack of a genuine
issue.” Hartnagel, 953 F.2d at 395 (citing
Celotex, 477 U.S. at 323). Once the moving party has
met this burden, the nonmoving party must go beyond the
pleadings and by depositions, affidavits, or otherwise,
designate specific facts showing that there is a genuine
issue for trial. Mosley v. City of Northwoods, 415
F.3d 908, 910 (8th Cir. 2005). The nonmovant must show an
alleged issue of fact is genuine and material as it relates
to the substantive law. Id. If a party fails to make
a sufficient showing of an essential element of a claim or
defense with respect to which that party has the burden of
proof, then the opposing party is entitled to judgment as a
matter of law. Celotex, 477 U.S. at 322.
determine whether a genuine issue of material fact exists, I
must view the evidence in the light most favorable to the
nonmoving party. Matsushita, 475 U.S. at 587-88.
Further, I must give the nonmoving party the benefit of all
reasonable inferences that can be drawn from the facts.
Id. However, “because we view the facts in the
light most favorable to the nonmoving party, we do not weigh
the evidence or attempt to determine the credibility of the
witnesses.” Kammueller v. Loomis, Fargo &
Co., 383 F.3d 779, 784 (8th Cir. 2004) (citing Quick
v. Donaldson Co., 90 F.3d 1372, 1376-77 (8th Cir.
1996)). Instead, “the court's function is to
determine whether a dispute about a material fact is
genuine.” Quick, 90 F.3d at 1377.
RELEVANT FACTS 
Jennifer Paskert is a resident of Dickinson County, Iowa, and
a female. Doc. No. 31 at ¶ 2. She was employed by
Auto$mart, Inc., as a sales associate from May to November
Auto$mart, Inc., is an Iowa corporation that operates a
“buy here, pay here” used car dealership in
Spirit Lake, Iowa. Doc. No. 40-2 at 21, 34, 93. Kenneth
testified that Auto$mart, Inc., typically has three
employees. Id. at 44. Auto$mart, Inc., maintains its
own financial records and has its own auto dealer's
license from the Iowa Department of Transportation.
Id. at 48.
Kenneth Kemna splits his time between Florida and Iowa. Doc.
No. 40-2 at 95. He is the sole owner of Auto$mart, Inc.,
is also the sole or part owner of several car dealerships and
related business entities that are interrelated. Id.
at 91-94. Kenneth provided this chart in connection with his
motion for summary judgment:
No. 40-2 at 92. If lines were added to indicate employees who
draw their pay from more than one of these entities, those
lines would become quite tangled. Nevertheless, each of the
entities is separately registered and they reportedly pay
each other for various services. Kenneth is on the board of
directors of each entity but does not handle the day-to-day
affairs of the businesses. Id. Kenneth estimates
that he was at the Auto$mart, Inc., store in Spirit Lake for
less than two hours in all of 2015. Id. at 40.
Kenneth retains the authority to fire employees at each of
his businesses. Id. at 39.
Brent Weringa is an Iowa resident. Id. at 73. In
2015, he was employed as a manager by Kemna Motor d/b/a
Auto$mart of Algona and was also a consultant for the
Auto$mart, Inc., through KMC finance. Id. at 75.
Kenneth described this arrangement as follows:
A: Brent Weringa's payroll records were for Kemna Motor
Company d/b/a Auto$mart of Algona of which 80 percent
approximately of his compensation was remunerated back from
Kemna Holdings. Kemna Holdings was paid by a company called
KMC Finance which is our finance arm that buys paper -
finance contracts from the Auto$marts.
So Brent Weringa's role was to protect KMC Finance's
obligations and work as a consultant with the Auto$marts
through KMC Finance to make sure those payments were properly
made by all of its debtors.
Q: So Brent Weringa in 2015 was employed by Kemna Motor
A: Brent Weringa had 20 percent employment with Kemna Motor
Company d/b/a Auto$mart. 80 percent of his [pay] was
subcontracted back out to Auto$marts and KMC Finance through
Kemna Holdings . . . as a consultant.
Doc. No. 40-2 at 38. Weringa testified that he did not have
supervisory authority over the employees of Auto$mart, Inc.,
although he was involved in overseeing the company.
Id. at 38-39. Weringa was present for Paskert's
interview. Doc. No. 40-2 at 51. Weringa explained that
Auto$mart, Inc., would include him on hiring because selling
at Auto$mart, Inc., was closely related to collections, which
he oversaw. Id. at 75-76.
Brent Burns was the manager of the Auto$mart, Inc.,
dealership in Spirit Lake. Doc. No. 40-2 at 20. Burns
accepted this position in January 2015. Doc. No. 39-3 at 21.
Burns had the authority to hire and fire employees, including
Paskert. Doc. No. 40-2 at 39. Burns testified that he
considered Weringa to be his supervisor and that Weringa had
final authority over decisions such as hiring and firing.
Doc. No. 39-3 at 23-24.
Kemna Motor is a General Motors dealership in Algona, Iowa,
and also owns an Auto$mart dealership in Algona. Id.
at 91. Kemna Motor typically has 30 employees.
Finance, LLC, is a Florida limited liability corporation that
acquires the consumer finance contracts entered into by
Auto$mart branded dealerships. Doc. No. 40-2 at 94. Kemna
Holdings, Inc.,  contracted with Auto$mart, Inc., Kemna
Motor and other entities to provide services such as
accounting, payroll, employee benefits, human resources,
insurance, information technology, leadership training and
consulting. Id. at 92-93. Each entity pays Kemna
Holdings for these services. Id. at 93. Kemna
Holdings does not appear to have any employees. At times,
employees from Kenneth's businesses would do work for
Kemna Holdings, which would in turn be billed to the business
that needed the work done. For example, Lynn Hoover, a Kemna
Motor employee, did payroll and personnel assistance for
Auto$mart, Inc., through this arrangement. Id. at
38. Hoover did not have hiring, firing or supervisory
authority at Auto$mart, Inc. Id.
Paskert was ostensibly employed by Auto$mart, Inc., many of
the employment forms she completed name other businesses
within Kenneth's various enterprises. Her application for
health insurance lists “Kemna Auto Center” in
Algona as her employer. Doc. No. 56-3 at 36. Her direct
deposit form has “Kemna Auto Center” in the
heading and her form I-9 lists “Kemna Auto
Center” as the “Employer's Business or
Organization Name, ” again with an Algona, Iowa,
address. Id. at 40-42. Paskert signed an information
security program agreement to comply with the policies and
procedures outlined in “Kemna GM Center's
Information Security Program.” Id. at 45.
“Kemna Motor Co” took out a driver's
insurance policy for Paskert. Id. at 47. Paskert
enrolled in a MetLife insurance program through her employer
“Kemna” located in Algona, Iowa. Id. at
50. Paskert's October 31, 2015, paycheck was drawn from
an account titled “Kemna Express Lube” in Fort
Dodge, Iowa. Doc. No. 56-2 at 4. The forms terminating
Paskert's insurance and employment also contain
“Kemna GM Center, ” “Kemna Auto, ”
and “Kemna Auto Center” in the headings.
Id. at 5-7, 50. Paskert's time clock summary
report for the first week in November (before she was
discharged) contains “Kemna Auto” in the header,
as does the time report for the entirety of her time at
Auto$mart, Inc. Id. at 8-13.
explained this paperwork discrepancy as Kemna Holdings
“subletting” work to Kemna Motor:
Q: Okay. So if we have seen records that refer to Kemna Motor
Company . . . in Ms. Paskert's file . . . . Why would
Kemna Motor Company be involved in her personnel file as
opposed to Kemna Holdings?
A: That's a great question. As I stated earlier, we had
just a few days to switch over from Kemna-Asa Auto Plaza to
Auto$mart, Inc. Kemna Holdings was subletting work to
employees of Kemna Motor Company. I had employees in Kemna
Motor Company that had the experience and the time, and Kemna
Holdings paid Kemna Motor Company on a sublet basis to have
some of their employees provide services for Kemna Holdings
which in turn provided the services to Auto$mart, as well as
other entities that we do business with.
Doc. No. 40-2 at 38.
Hiring and Training
hired Paskert as a sales associate in May 2015. Her job
duties included car sales, collections, repossessions and
preparing cars for sale. Paskert testified that Weringa and
James Bjorkland - an experienced co-worker who shared the
same job duties - trained her in sales. Id. at 53.
Sales training took the form of role-playing exercises.
Either Paskert or Bjorkland would play the role of a customer
and they would go through the “sticker pitch” on
a specific car. Id. at 53. Other than these
role-playing exercises, Paskert testified that she did not
receive any other training in sales. Paskert states
specifically that she never received a sales training manual.
Doc. No. 56 at 165. Burns trained Paskert in collections.
Doc. No. 40-2 at 53. For the first two to three months of her
job, before she was sufficiently trained in any category,
Paskert primarily worked on cleaning and preparing cars for
sale. Doc. No. 39-3 at 7.
“not having any supervisory duties, ” Weringa
completed a 90-day performance review of Paskert's work
on September 30, 2015. Doc. No. 56-2 at 3. Weringa scored
Paskert as “satisfactory” in job performance, job
knowledge and attendance, and commented that she should
continue her training. Id.
point, Paskert's focus shifted to collections and
secretarial duties, rather than sales. Bjorkland described
the transition as follows:
Q: Now, you've made the statement that Jennifer handled
the collections. What do you mean by that?
A: It started out as me training her, which I never really
ever got the opportunity to do. She was improperly trained
because it started out, you know, she learned the passwords
and the procedures, which is a big part of it. The handbook
obviously was another part of it. The motto that they have
there that I still have burnt into my mind, which I'm not
going to repeat now, and it was supposed to be - Beings I had
experience with selling the vehicles, you want somebody that
has the time. Brent didn't have the time. There might
have been a couple times he had her in his office with the
collections end of it, which I didn't do a lot of the
collections. I collected payments, but as far as the calling
people up - We ended up having a meeting after three months
that I was going to be focusing on the sales end of it.
Jennifer was going to be the collections. It wasn't a
manger's title or anything, but she was doing such a
wonderful job. Collections were at a minimum. I mean, she was
doing very good at what she was doing, and then [Burns] was
going to do his duties, so . . .
Doc. No. 40-2 at 9. While Paskert had success with
collections, Weringa wanted her to be more involved with
sales and requested that she spend more time shadowing
Bjorkland. Id. Bjorkland states that Burns prevented
that from happening. Id. (“Q: Why was it that
she didn't get the opportunity to shadow you? A. Because
she got called back in because she was supposed to be the
secretary and answer the phone. Q: Called back in by who? A:
Brent Burns.”), see also Id. at 54
(Paskert's testimony that “if the phone range, I
had to go back and answer the phone . . . [Burns] said that
he was busy doing other things, that he was not going to be
available to do that.”).
further testified that there was not much need for a second
salesperson at Auto$mart, Inc., Spirit Lake location:
“Very rarely did you ever have more than one person on
the lot. I mean, it's a little dealership, so I took the
[customer] every time.” Id. at 10. Indeed, it
appears that Auto$mart, Inc., sold an average of 15 cars per
month from June 2015 to October 2015. Paskert testified that
she did not have the opportunity to conduct any sales due to
the lack of training: “I was out on the lot, but I was
instructed [by Weringa] to just carry on a conversation with
them and answer any questions about the car until either
James or [Burns] was available to speak with them. And then
at that point I would be able to sit in on it . . . until I
was properly trained.” Doc. No. 40-2 at 54. Paskert
further testified that Burns instructed her to defer sales to
Bjorkland and Burns because they had more experience.
Id. at 56.
disputes that Paskert was attempting to finish her training
to be a salesperson. Doc. No. 39-3 at 28. He testified that
she “refused to go through the formalized training and
refused to take sales training input from me.”
Id. This behavior began “[a]lmost immediately
upon hire.” Id. Burns agreed that he directed
her to allow Bjorkland and himself to handle sales in the
first instance. Id. at 32. Kenneth, who was in the
dealership less than two hours for the entire year of 2015,
testified that he believed Paskert had the exact same
training as Bjorkland and that she just was not performing.
Id. at 38.