United States District Court, N.D. Iowa, Western Division
MEMORANDUM OPINION AND ORDER ON DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT
Leonard T. Strand, Chief Judge
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.
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. Id.
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
following facts are undisputed, except where noted otherwise.
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 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.
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.” 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
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. That same day Racca similarly told HR
that Goodman had made threats of violence. 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. Strickland testified that he does
not recall any discussion of the alleged threats with Pabst
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.
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.
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.
facts will be discussed below, as necessary.
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 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).
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.
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.
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.
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.
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).
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
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.
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).
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).
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
Alleged retaliation by Pabst
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.
“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.
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).
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). 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.
the theory could apply to this situation, Goodman has not
raised a genuine question of fact that Pabst had an unlawful
retaliatory motive. First, Pabst made her report on November
11, a day before Goodman first complained to Morel about
discrimination. 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.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
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