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Goodman v. Performance Contractors, Inc.

United States District Court, N.D. Iowa, Western Division

January 30, 2019



          Leonard T. Strand, Chief Judge

         This case is before me on defendants' motion (Doc. No. 63) for summary judgment. Plaintiff David Goodman has filed a resistance (Doc. No. 68) and defendants have filed a reply (Doc. No. 78). I heard oral arguments on January 22, 2019. The motion is fully submitted and ready for decision. Trial is scheduled to begin March 4, 2019.


         On August 21, 2017, Goodman filed a petition (Doc. No. 2-2) in the Iowa District Court for Woodbury County against Performance Contractors, Inc. (PCI), Kelly Pabst and Derek Racca, in which he made allegations about events that occurred while he was employed at a PCI construction site in Sergeant Bluff, Iowa. This case was removed to this court on October 6, 2017, on the basis of diversity jurisdiction pursuant to 28 U.S.C. § 1332. In his state court petition, Goodman asserted claims for (1) discrimination on the basis of race and retaliation in violation of the Iowa Civil Rights Act, Iowa Code Chapter 216 (ICRA) and (2) defamation. Doc. No. 2-2. Goodman filed an amended complaint (Doc. No. 23) on January 23, 2018, in which he added a third count alleging discrimination on the basis of race and retaliation in violation of Title VII of the Civil Rights Act of 1964.[1] Id.

         On February 2, 2018, Goodman dismissed Pabst as a defendant. Doc. No. 28. Thus, as currently situated, Count I asserts retaliation and discrimination claims, against PCI only, pursuant to the ICRA; Count II asserts defamation claims against PCI and Racca; and Count III asserts retaliation and discrimination claims, against PCI only, pursuant to Title VII.


         The following facts are undisputed, except where noted otherwise.

         PCI is a private industrial construction contractor, headquartered in Baton Rouge, Louisiana. PCI engages in industrial construction throughout the United States in various industries including fertilizer, chemical and steel. PCI was hired by CF Industries to construct and expand a fertilizer plan in Sergeant Bluff, Iowa. The project began in 2013. Goodman began work as a rigger[2] at the Sergeant Bluff site on September 21, 2015. In mid-October 2015, Goodman was assigned to work with crane operator Kelly Pabst. Derek Racca was another employee who knew Pabst and had worked with Goodman on one occasion.[3]

         Goodman claims that from mid-October through mid-November 2015, Pabst made a racial comment to him or around him every other day, which included references to black people as thugs, repeating stereotypes and telling him a story in which someone else used the word “nigger.” Pabst did not direct that word at Goodman and no one else at Performance referred to Goodman by that word. Goodman additionally claims that on November 10, 2015, he got coffee for Pabst and she said, “that's all you black people ever do is put a lot of cream in your coffee.”[4] In response, Goodman claims he told Pabst not to stereotype him. For the remainder of that day, Goodman avoided talking to Pabst about anything other than work.

         On Wednesday, November 11, 2015, Pabst made a written report to Human Resources (HR) alleging that Goodman had made threats of violence against the workplace by threatening to “shoot up” the job site. Goodman asserts that he never made any threats.[5] That same day Racca similarly told HR that Goodman had made threats of violence.[6] In response to Pabst's and Racca's allegations, Goodman was escorted off the job site that day. Both Pabst and Racca state that they spoke to Leon Strickland, a general foreman at PCI, about Goodman's threats.[7] Strickland testified that he does not recall any discussion of the alleged threats with Pabst or Racca.

         On Thursday, November 12, 2015, Goodman returned to the job site to pick up his check and ask about his employment status. The parties dispute what Andrew Morel, the HR Manager, told Goodman at this meeting. Goodman argues that Morel did not tell Goodman about Pabst's and Racca's accusations, but the defendants contend that Morel informed Goodman about the accusations. Both parties agree that Goodman completed a written statement. In that statement, Goodman wrote that Pabst had made racially stereotyping comments “the day before yesterday” - presumably November 10-and that he objected to those comments.

         On Friday, November 13, 2015, Morel contacted Corporate HR Manager Sarah Borne to ask how he should proceed. Borne instructed Morel to re-question Pabst and Racca in light of Goodman's statement. Morel called Goodman later that day and mentioned the allegations that Goodman had threated to shoot up the job site. Goodman told Morel during that phone call that another employee named Silas Thompson had heard Pabst make racist statements. Morel never contacted Silas Thompson to discuss with him whether or not he had heard Pabst make racist statements. Goodman moved to Texas on either that same day or on Saturday, November 14, 2015.

         On Monday November 16, 2015, Goodman went to PCI's office in Deer Park, Texas and completed a second written statement complaining that Pabst made false allegations against him because she thought he was going to report her to HR for her discriminatory comments. As of 11:06 a.m. on November 16, Morel had not made a final decision on whether or not to fire Goodman. Morel received Goodman's second complaint via email at 12:09 p.m. Morel sent an email at 2:01 p.m. indicating that he had decided to fire Goodman. Goodman's employment was officially terminated that day.

         Additional facts will be discussed below, as necessary.


         Any 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 affidavits, if any, show that there is no genuine issue of 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, 322 (1986).

         A 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.

         As 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 248-49. The party moving for entry of summary judgment bears “the initial responsibility of informing the 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. 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.

         In determining if a genuine issue of material fact is present, 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). Instead, “the court's function is to determine whether a dispute about a material fact is genuine.” Quick v. Donaldson Co., Inc., 90 F.3d 1372, 1376-77 (8th Cir. 1996).

         On cross motions for summary judgment, the “court must rule on each party's motion on an individual and separate basis, determining, for each side, whether a judgment may be entered in accordance with the Rule 56 standard.” 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2720 (3d ed. 1998). Because the parties seek summary judgment on some of the same issues, I will consider all the parties' arguments as to each issue, keeping in mind the separate inferences that are to be drawn from each motion. See Wright v. Keokuk Cnty. Health Ctr., 399 F.Supp.2d 938, 946 (S.D. Iowa 2005).

         IV. ANALYSIS

         A. Retaliation

         1. Legal Standards

         Title VII provides that it “shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter.” 42 U.S.C. § 2000e-3. Title VII prohibits employers from retaliating against employees for opposing racial discrimination. Wright v. St. Vincent Health Sys., 730 F.3d 732, 737 (8th Cir. 2013). The ICRA also makes it an unfair discriminatory practice for “[a]ny person to . . . retaliate against another person in any of the rights protected against discrimination by this chapter because such person has lawfully opposed any practice forbidden under this chapter.” Iowa Code § 216.11(2). The ICRA retaliation provision “mirrors almost exactly” that of Title VII. Haskenhoff v. Homeland Energy Sol. LLC, 897 N.W.2d 553, 584 (Iowa 2017). Thus, I will analyze the state and federal retaliation claims under the same framework with the exception, as discussed below, of the causation standards.

         Where, as here, a plaintiff presents no direct evidence of retaliation, the claim is analyzed under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this framework, the plaintiff has the initial burden of establishing a prima facie case of retaliation. Clark v. Johanns, 460 F.3d 1064, 1067 (8th Cir. 2006). The defendant then must offer a legitimate, non-discriminatory reason for the employment action. Id. The burden of production then returns to the plaintiff to show that this reason was a pretext for discrimination. Id.

         To establish a prima facie case of retaliation, the plaintiff must present evidence that (1) he engaged in a protected activity; (2) an adverse employment action was taken against him; and (3) a causal connection exists between the two. Barker v. Missouri Dep't of Corr., 513 F.3d 831, 834 (8th Cir. 2008); Thompson v. Bi-State Dev. Agency, 463 F.3d 821, 826 (8th Cir. 2006). The federal statute requires a higher causation standard for retaliation claims than for discriminatory discharge claims. Haskenhoff, 897 N.W.2d at 584. “Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 352 (2013). In other words, the plaintiff must show the protected conduct was a determinative, not just motivating, factor in the employer's decision. Van Horn v. Best Buy Stores, L.P., 526 F.3d 1144, 1148 (8th Cir. 2008); see also Wright, 730 F.3d at 737. By contrast, to prove causation under the ICRA, the plaintiff must show that the protected conduct was a “motivating factor” in the employer's adverse employment decision. Haskenhoff, 897 N.W.2d at 635-37; see also Johnson v. Mental Health Inst., 912 N.W.2d 855, No. 16-1447, 2018 WL 351601, at *7-*8 (Iowa Ct. App. Jan. 10, 2018) (summarizing the multiple opinions in Haskenhoff and concluding that the motivating factor standard now applies to retaliation claims just as it does to discriminatory discharge claims).[8]

         An unsupported, self-serving allegation that an employer's decision was based on retaliation cannot establish a genuine issue of material fact. Jackson v. United Parcel Serv., Inc., 643 F.3d 1081, 1088 (8th Cir. 2011). Timing alone may be sufficient to create an inference of retaliation, but the Eighth Circuit has typically required more than a close temporal connection to establish a retaliation claim or show that the employer's stated legitimate reason was pretext. Wright, 730 F.3d at 738-39. Evidence of causation may include “evidence of discriminatory or retaliatory comments” or evidence of “a pattern of adverse action or escalating adverse actions after the protected activity.” Orluske v. Mercy Med. Ctr.-N. Iowa, 455 F.Supp.2d 900, 922 (N.D. Iowa 2006). A causal link may be broken if the decisionmaker for the adverse action was unaware of the protected activity. Id. However, an employer cannot avoid liability by using a “purportedly independent person or committee as the decisionmaker where the decisionmaker merely serves as the conduit, vehicle, or rubber stamp by which another achieves his or her unlawful design.” Dedmon v. Staley, 315 F.3d 948, 949 n.2 (8th Cir. 2003).

         Goodman argues that he can show a prima facie case of retaliation in two ways: (1) Pabst's retaliation “for [Goodman's] opposition to her inappropriate racial remarks” and (2) Morel's retaliation for Goodman's written statements and complaints about racial discrimination. Doc. No. 74 at 7, 11. I will address these individually.

         2. Alleged retaliation by Pabst

         Goodman relies on the “cat's paw” theory of liability to impute Pabst's improper retaliatory motive onto Morel. Doc. No. 74 at 9-11. This theory states that an employer “can be liable, under certain circumstances, where the formal decisionmaker is not the person who harbored an unlawful motive to terminate the employee.” Qamhiyah v. Iowa State Univ. of Sci. & Tech., 566 F.3d 733, 742 (8th Cir. 2009) (quoting Dedmon, 315 F.3d at 949 n.2). Typically, “cat's paw” “refers to a situation in which a biased subordinate, who lacks decisionmaking power, uses the formal decisionmaker as a dupe in a deliberate scheme to trigger a discriminatory employment action.” Id. (quoting EEOC v. BCI Coca-Cola Bottling Co. of L.A., 450 F.3d 476, 484 (10th Cir. 2006)). Goodman argues that Pabst retaliated against him for his objections to her discriminatory remarks by filing a false complaint with Morel. Doc. No. 74 at 8. According to Goodman, on November 10 Pabst told him, “all you black people ever do is put a lot of cream in your coffee.” Doc. No. 68-1 at 11. He responded by telling her not to stereotype him and then ignoring her the rest of the day. Doc. No. 68-2 at 2. Goodman asserts that Pabst assumed he would report her to HR, so she made a false statement to Morel that Goodman threatened to shoot up the job site in order to cause Morel to fire Goodman. Doc. No. 74 at 11, 19.

         The “cat's paw” theory is “typically applied in direct evidence discrimination cases rather than indirect evidence cases under the McDonnell Douglas framework.” Quinonez-Castellanos v. Performance Contractors, Inc., No. C16-4097-LTS, 2017 WL 6519033, at *13 (N.D. Iowa Dec. 20, 2017); see also Diaz v. Tyson Fresh Meats, Inc., 643 F.3d 1149, 1152 (8th Cir. 2011) (noting the tension between the McDonnell Douglas framework and the cat's paw theory of liability but declining to resolve it). No direct evidence has been presented here. In fact, both parties have argued this case under the McDonnell Douglas framework. Doc. Nos. 63-1 at 6; 74 at 4-5, 7. Therefore, I am not convinced the cat's paw theory even applies. Neither party has addressed the issue.

         Further, there is no evidence that Pabst was a supervisory employee over Goodman. Instead, she was a crane operator who worked with Goodman. Doc. Nos. 68-1 at 2; 79 at 1. PCI indicates that Pabst was not Goodman's supervisor and had no authority to hire, terminate or discipline Goodman. Doc. No. 68-1 at 3. While Goodman denies this assertion, he does not cite evidence to show she was a supervisor. He merely states that “by failing to conduct any meaningful independent review . . . [PCI] deferred its decisionmaking authority” to Pabst. Id. This is a legal conclusion, not evidence supporting a finding that Pabst had a supervisory role. See Doc. No. 70-1 at 99 (indicating that PCI terminated Goodman's employment based on the allegations by Pabst and Racca); Doc. No. 68-2 at 11-14 (statements of fact describing Pabst's report and the alleged deficiencies in Morel's investigation).

         Based on the record before me, I find that Pabst is not a supervisory employee. Even if the cat's paw theory is applicable without direct evidence, I am not persuaded that it applies to non-supervisory employees. The Supreme Court has stated that the cat's paw theory applies “if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action.” Staub v. Proctor Hosp., 562 U.S. 411, 422 (2011) (footnote deleted; emphasis in original).[9] Similarly, the Eighth Circuit cases applying the cat's paw theory have involved employees who did not have decision-making authority but nonetheless were in a supervisory role over the plaintiff. See Stacks v. Sw. Bell Yellow Pages, Inc., 27 F.3d 1316, 1323 (8th Cir. 1994) (“an employer cannot escape responsibility for discrimination[] when the facts on which the reviewers rely have been filtered by a manager”); Lacks v. Ferguson Reorganized Sch. Dist. R-2, 147 F.3d 718 (8th Cir. 1998) (finding a teacher's race discrimination claim failed because the decision to terminate her belonged to the school board and not to the principal or assistant superintendent); Euerle-Wehle v. United Parcel Serv. Inc., 181 F.3d 898 (8th Cir. 1999) (plaintiff accused supervisor of falsely reporting her for mishandling packages); Dedmon v. Staley, 315 F.3d 948, 949 (8th Cir. 2003) (plaintiff argued the county clerk who terminated her served as the cat's paw for an immediate supervisor); Richardson v. Sugg, 448 F.3d 1046, 1059-60 (8th Cir. 2006) (plaintiff basketball coach argued the university president acted as the cat's paw for the athletic director); Qamhiyah, 566 F.3d at 743-44 (analyzing whether “upper-level reviewers” were independent of “lower-level” reviewers of the plaintiff's tenure application); Bennett v. Riceland Foods, Inc., 721 F.3d 546, 549, 552 (8th Cir. 2013) (stating the employee who was motivated by discriminatory animus was a supervisor over the plaintiffs); Ludlow v. BNSF Ry. Co., 788 F.3d 794, 797-98 (8th Cir. 2015) (stating that the employee accused of the improper motive was the plaintiff's supervisor). Similarly, the decision of this court that Goodman has cited involved an employee in a supervisory role. See Coe v. N. Pipe Prods., Inc., 589 F.Supp.2d 1055, 1065, 1093-94 (N.D. Iowa 2008) (plaintiff, a truck driver, argued the Human Resources Manager was the cat's paw of the Traffic Manager). Because there is no evidence that Pabst was in a supervisory position over Goodman, the cat's paw theory of liability does not apply.

         Even if the theory could apply to this situation, Goodman has not raised a genuine question of fact that Pabst had an unlawful retaliatory motive.[10] First, Pabst made her report on November 11, a day before Goodman first complained to Morel about discrimination.[11] Therefore, any retaliatory motive on Pabst's part would have been in anticipation of protected conduct that had not yet occurred. The parties have not discussed whether anticipatory retaliation is actionable under Title VII or the ICRA.[12]Even if it is, Goodman cites no evidence to show that Pabst believed he was going to report her to HR. Goodman did not tell her he was going to report her and had not reported her after previous, allegedly-racist comments. The only reports he made were his statements on November 12 and November 16. Doc. Nos. 68-1 at 11; 70-1 at 51- 55.

         The assertion that Pabst assumed Goodman would report her to HR is pure speculation, which I need not accept as fact. See Reed v. City of St. Charles, Mo., 561 F.3d 788, 791 (8th Cir. 2009). Because there is no evidence to show that Pabst knew or thought Goodman would report her, Goodman has not generated a genuine question of material fact that ...

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