LARRY R. HEDLUND, Appellant,
STATE OF IOWA; K. BRIAN LONDON Commissioner of the Iowa Department of Public Safety, Individually; CHARIS M. PAULSON, Director of Criminal Investigation, Individually; GERARD F. MEYERS, Assistant Director Division of Criminal Investigation, Individually; and TERRY E. BRANSTAD, Individually, Appellees.
from the Iowa District Court for Polk County, David May,
appeals summary judgment dismissing all claims in an
J. Duff and Elizabeth Flansburg of Duff Law Firm, P.L.C.,
West Des Moines, and Roxanne Barton Conlin of Roxanne Conlin
& Associates, P.C., Des Moines, for appellant.
J. Miller, Attorney General, and Jeffrey C. Peterzalek and
William Pearson, Assistant Attorneys General, for appellees.
seeks review of a district court order granting summary
judgment to the defendants on all claims in an employment
case. On appeal, plaintiff raises three issues. He argues the
district court erred when it determined judicial review
following the administrative process was the exclusive means
to seek redress for alleged retaliation against a
whistleblower. Next, he argues the district court erred by
denying his age discrimination claim. Lastly, the plaintiff
challenges the district court's finding of no
"outrageous" conduct sufficient to support his tort
of intentional infliction of emotional distress.
first decide whether plaintiff's direct civil action
under Iowa Code section 70A.28(5) (2014), the whistleblower
statute, is precluded by the availability of an
administrative remedy. Relying on this court's decision
in Walsh v. Wahlert, 913 N.W.2d 517 (2018), we
conclude section 70A.28(5) expressly creates an independent
cause of action in the alternative to administrative remedies
under Iowa Code chapter 17A. Therefore, we reverse summary
judgment as to that issue. For plaintiff's claim of age
discrimination under the Iowa Civil Rights Act, we affirm the
district court's determination that plaintiff failed to
present sufficient evidence from which a reasonable jury
could infer age discrimination was the real reason for his
termination. We also affirm summary judgment on
plaintiff's intentional infliction of emotional distress
claim. None of the defendants' conduct was sufficiently
egregious to satisfy the "outrageousness" prong.
Background Facts and Proceedings.
1988, Larry Hedlund began a career with the Iowa Department
of Public Safety (DPS) as a trooper in the Iowa State Patrol.
In 1989, he became a special agent for the Iowa Department of
Criminal Investigation (DCI), and in 2010, was promoted to
special agent in charge (SAC).
October 2012, Brian London became commissioner of DPS. London
then appointed Assistant Director Charis Paulson as the
director of DCI. In January 2013, SAC Gerard Meyers was
promoted to assistant director for field operations of DCI
and became Hedlund's direct supervisor. About a month
later, Hedlund composed and circulated an email critical of
Meyers. Members of DCI, including Hedlund's subordinate
agents, received the email. The following day, Meyers set up
a meeting with Hedlund to discuss, among other things, the
email. During that meeting, Hedlund was not disciplined
although Meyers advised him to stop circulating critical
emails. Meyers also told Hedlund he did not want to have
issues with him since he was in the "twilight of his
career." However, Hedlund continued sending emails
critical of upper management within DPS and DCI.
April 17, 2013, Hedlund filed a complaint with the
Professional Standards Bureau (PSB) against Paulson. The
complaint alleged that on August 28, 2012, Paulson
distributed an email to members of DPS in violation of
department policy. Hedlund also alleged Paulson condoned the
persistent misuse of physical fitness incentive days.
Similarly, on May 29, 2013, Hedlund filed a complaint with
PSB against Meyers. The complaint alleged Meyers condoned the
misuse of physical fitness incentive days and encouraged
personnel to ignore parking citations.
April 18, 2013, Paulson, Meyers, and the SACs held a
conference call to discuss strategic planning regarding the
Field Operations Bureau of DCI. Paulson indicated
"Hedlund became extremely angry, yelled at [him] and
spoke in an unprofessional and insubordinate manner."
The strategic planning was again discussed during an
in-person meeting on April 23, 2013. The SACs expressed
resistance to the proposed reduction of zones and agents. The
issue of agent burn-out and suicide arose. Hedlund agreed
with the stress-related issues and mentioned a past colleague
committed suicide. Paulson reported Hedlund mentioned suicide
four times. On April 25, Hedlund sent another email to his
subordinates critical of DPS management.
requested and received approval for vacation on April 26 to
attend his niece's art show in Cedar Rapids. The evening
before, he drove his state vehicle from Fort Dodge to Cedar
Rapids where he spent the night. The next morning, Hedlund
contacted Wade Kisner, a retired DCI agent, to discuss cold
cases, and they met for a few hours. That same day, Paulson
filed a complaint with PSB against Hedlund. Paulson claimed
Hedlund had been disrespectful and insubordinate during the
April 18 conference call. Unaware of Hedlund's approved
vacation day, Paulson attempted to contact Hedlund on April
26. Paulson called and texted Hedlund numerous times. Paulson
indicated this was an attempt to set up a meeting regarding
Hedlund's conduct. When asked if he was working, Hedlund
responded "yes and no." Paulson rescheduled the
meeting to Monday April 29 because of Hedlund's approved
departed from Cedar Rapids on the afternoon of April 26. On
his way to Fort Dodge, he spotted a black SUV doing a
"hard ninety." Hedlund contacted the Iowa State
Patrol. Trooper Matt Eimers intercepted the speeding SUV but
determined it was an official state vehicle under the
operation of another Iowa State Patrol trooper for the
purpose of transporting the Governor of Iowa. The SUV was not
stopped and no citation was issued.
April 29, Hedlund sent Paulson a lengthy email regarding
Meyers's inability to perform his job. A half-hour later,
Hedlund sent another email to Paulson and Meyers designated
"a complaint against myself." This email detailed
the Governor's SUV incident. Hedlund summarized his
failure to issue a citation to a speeding vehicle.
I take full responsibility for the incident being initiated
and as such will accept the responsibility of ensuring that
the appropriate actions are taken to address this incident.
As the ranking sworn peace officer involved in this incident
and as a Supervisor with the Department of Public Safety, I
should have insisted that the vehicle be stopped.
same evening, Hedlund sent a third email to Paulson, Meyers,
and his subordinates. The email indicated Hedlund needed
personal time for the remainder of the day as well as April
30. In response, Meyers noted Hedlund was not on approved
leave status. On April 30, Hedlund sent Paulson and Meyers an
email that explained his leave request was a sick day.
Hedlund's email stated, "I consider it a sick day
due to the stress that I am experiencing over the issues
currently going on in the DCI/DPS." Hedlund subsequently
provided a doctor's letter excusing him from work April
30 through May 6.
1, Hedlund was placed on administrative leave with pay and
provided a notice of investigation. The notice alleged
Hedlund engaged in various acts of misconduct during the
previous month. That day, the PSB notice of investigation was
delivered to Hedlund's home by Meyers, Assistant Director
of Field Operations David Jobes, and Sergeant Wes Niles.
Hedlund was relieved of his state-issued phone, car keys,
service weapon, and various other items. On May 14, Hedlund
was ordered to attend a fitness-for-duty evaluation. Hedlund
was declared fit for duty at that time.
investigators interviewed Hedlund on June 19. On July 17, PSB
issued a 500-page report of its investigation. It found
Hedlund engaged in multiple acts of insubordination. That
same day, Paulson terminated Hedlund. The termination alleged
Hedlund engaged in unbecoming or prohibited conduct, violated
the courteous behavior rule, and improperly used state
property. The termination also included a notice of right to
appeal in accordance with Iowa Code section
18, Governor Branstad held a press conference. Governor
Branstad addressed several matters, including Hedlund's
termination. In response to a press question about the
relationship between Hedlund's employment issues and any
"morale issues" at DPS, Governor Branstad stated,
"They [DPS] felt for the morale and for the safety and
well-being of the Department, this was action that was
necessary." When asked if the termination was required,
Governor Branstad responded he believed the action was
"a fair and just decision."
August 8, Hedlund filed a petition in district court and
alleged wrongful discharge in violation of public policy and
violation of Iowa Code chapter 70A. On August 13, Hedlund filed
an appeal with the Employment Appeal Board (EAB) pursuant to
Iowa Code section 80.15. On January 16, 2014, Hedlund
voluntarily dismissed his EAB appeal prior to the evidentiary
hearing. EAB granted the dismissal on January 22. Pursuant to
this dismissal, DPS notified Hedlund his termination would be
effective January 30.
January 23, Hedlund filed a complaint with the Iowa Civil
Rights Commission. Hedlund indicated he was discriminated
against based on his age. Hedlund indicated he suffered two
adverse actions- "disciplined/suspended" and
"terminated." He did not claim he had been
"forced to quit/retire" or "harass[ed]."
The complaint named DPS and Meyers as the actors.
January 29, one day before his termination would have become
effective, Hedlund filed an application with the Peace
Officers' Retirement System (PORS) for retirement
benefits. The PORS Board approved Hedlund's application
effective February 17. By retiring, Hedlund preserved $94,
000 worth of his sick leave balance.
filed a motion to dismiss Hedlund's district court
claims. The district court granted the motion with regard to
Hedlund's claim of wrongful discharge in violation of
public policy. Hedlund filed a motion to amend the district
court's dismissal ruling. The district court denied his
motion to amend. Hedlund then filed an application for
interlocutory review with this court. On February 26, 2016,
we dismissed his appeal. Hedlund v. State, 875
N.W.2d 720 (Iowa 2016). On October 5, 2017, defendants filed
a motion for summary judgment on all remaining claims. The
district court granted the motion and dismissed Hedlund's
entire case. Hedlund appealed the district court's
ruling; we retained the appeal.
Standard of Review.
review a district court's grant of summary judgment for
correction of errors at law. Linn v. Montgomery, 903
N.W.2d 337, 342 (Iowa 2017). Summary judgment is appropriate
only when the record shows no genuine issues of material fact
and the moving party is entitled to judgment as a matter of
law. Iowa R. Civ. P. 1.981(3). We view the summary judgment
record in a light most favorable to the nonmoving party.
Phillips v. Covenant Clinic, 625 N.W.2d 714, 717
(Iowa 2001) (en banc). "The court must also consider on
behalf of the nonmoving party every legitimate inference that
can be reasonably deduced from the record." Id.
at 717-18. "Even if the facts are undisputed, summary
judgment is not proper if reasonable minds could draw
different inferences from them and thereby reach different
conclusions." Banwart v. 50th St. Sports,
L.L.C., 910 N.W.2d 540, 544-45 (Iowa 2018) (quoting
Clinkscales v. Nelson Sec., Inc., 697 N.W.2d 836,
841 (Iowa 2005) (per curiam)). Therefore, our review is
"limited to whether a genuine issue of material fact
exists and whether the district court correctly applied the
law." Pillsbury Co. v. Wells Dairy, Inc., 752
N.W.2d 430, 434 (Iowa 2008).
raises three issues. First, Hedlund argues the district court
erred in granting summary judgment on his section 70A.28
whistleblower claim. Second, Hedlund claims the district
court erred in denying his age discrimination claim. Lastly,
Hedlund contends the district court erred in granting summary
judgment on the outrageousness prong of his claim for
intentional infliction of emotional distress.
issue before us concerns the availability of remedies under
two distinct Iowa Code provisions. Iowa Code section
70A.28 and Iowa Code section 80.15 each address
adverse employment action against state employees. Hedlund
seeks the remedy of section 70A.28, commonly known as
Iowa's whistleblower statute. See Iowa Code
§ 70A.28. We must decide whether Hedlund's direct
civil action is precluded by the availability of section
term this court decided Walsh, 913 N.W.2d 517. We
addressed the statutory framework of Iowa's whistleblower
statute and parsed the "151-word linguistic jungle"
to reveal the relevant portion,
A person shall not discharge an employee . . . as a reprisal
. . . for a disclosure of any information by that employee to
a member or employee of the general assembly . . . or a
disclosure of information to any other public official or law
enforcement agency if the employee reasonably believes the
information evidences a violation of law or rule . . . .
Walsh, 913 N.W.2d at 521 (quoting Iowa Code §
70A.28(2)). Walsh-and now Hedlund-relied on language in the
whistleblower statute allowing the provisions of section
70A.28(2) to "be enforced through a civil action."
Id. at 521, 524 (quoting Iowa Code §
potential alternative to section 70A.28(5)'s civil action
is found in Iowa Code section 80.15. It provides the
statutory framework for discipline and dismissal of peace
officers within DPS. The relevant portion states,
After the twelve months' service, a peace officer of the
department . . . is not subject to dismissal, suspension,
disciplinary demotion, or other disciplinary action resulting
in the loss of pay unless charges have been filed with the
department of inspections and appeals and a hearing held by
the employment appeal board . . . if requested by the peace
officer, at which the peace office has an opportunity to
present a defense to the charges. The decision of the appeal
board is final, subject to the right of judicial review in
accordance with the terms of the Iowa administrative
procedure Act, chapter 17A.
Code § 80.15. Hedlund fits squarely within this
definition. It is the defendants' position that section
80.15, and therefore the administrative remedy under chapter
17A, is the exclusive means to seek judicial review. We
disagree. Our holding in Walsh is controlling.
See Walsh, 913 N.W.2d at 525.
80.15 is not the exclusive means for Hedlund to seek remedy.
Iowa Code section 70A.28(5) "expressly creates an
independent cause of action in the alternative to
administrative remedies under Iowa Code chapter 17A."
Id. We have previously emphasized "section
70A.28 established 'a public policy against retaliatory
discharge of public employees and considers the violation of
the policy to be a public harm.'" Id. at
524 (quoting Worthington v. Kenkel, 684 N.W.2d 228,
231, 233 (Iowa 2004) (allowing section 80.15 employee to seek
injunctive relief under section 70A.28(5)(b))).
Because the legislature expressly created section 70A.28(5)
as an independent statutory cause of action, a challenge to
agency action under the administrative procedure act is not
the exclusive means of obtaining judicial review. See
id. at 525. Hedlund may seek judicial review of DPS
action through 70A.28(5)'s civil action. "To hold
otherwise would eliminate a choice of remedies that the
legislature expressly created." Id. The
district court erred in granting summary judgment against
Hedlund's 70A.28 claim.
Conduct covered by section 70A.28.
district court granted defendants' summary judgment
before reaching the merits of Hedlund's section 70A.28
whistleblower claim. It is defendants' position summary
judgment remains appropriate because Hedlund did not satisfy
the statutory requirements of his claim. To engender the
whistleblower's statutory remedy, Hedlund must disclose
information to a "public official or law enforcement
agency" and reasonably believe "the information
evidences a violation of law or rule, mismanagement, a gross
abuse of funds, an abuse of authority, or a substantial and
specific danger to public health or safety." Iowa Code
§ 70A.28(2). Hedlund asserts reasonable minds could draw
different inferences and reach different conclusions with
respect to whom the disclosures of information were made and
whether the information evidences a type of wrongdoing. When
viewing the evidence in the light most favorable to Hedlund
and drawing all legitimate inferences therefrom, we agree
summary judgment is not appropriate.
parties do not dispute Hedlund made three separate
disclosures. The first two disclosures were complaints
Hedlund filed with PSB. The third disclosure was
Hedlund's April 29 email to Paulson and Meyers.
Defendants articulate such disclosures were not made to a
qualifying public official or law enforcement agency. Hedlund
indicates that PSB, as part of DPS, is a proper law
enforcement agency, and that the April 29 email to Paulson
and Meyers was directed to London, the commissioner of DPS.
At minimum, we determine the commissioner of DPS qualifies as
a law enforcement agency under the whistleblower statute.
See Iowa Code §§ 80.1, .2, .9 (creating
DPS and establishing "[i]t shall be the duty of the
department to prevent crime, to detect and apprehend
criminals, and to enforce such other laws as are hereinafter
specified"). Therefore, Hedlund has shown reasonable
minds could differ as to whether he made disclosures to the
also contend that Hedlund is nothing more than a
"chronic complainer" and that his disclosures are
not whistleblowing. See Blackburn v. United Parcel Serv.
Inc., 3 F.Supp.2d 504, 517 (D.N.J. 1998). But when
affording Hedlund every legitimate inference, summary
judgment is improper as to whether the information evidences
a type of wrongdoing. Hedlund's PSB complaints concerned,
among other things, his supervisors' condoned misuse of
agent time off and the encouragement to ignore lawfully
issued parking citations. Further, Hedlund's April 29
email recounted "the [well-known] dangers of traveling
at a high rate of speed" and how the speeding state
vehicle "can quickly put others at risk." This
information is not some trivial matter or a subjective
disagreement with the actions of a supervisor; the
disclosures could reasonably evidence "a violation of
law or rule, mismanagement, a gross abuse of funds, an abuse
of authority, or a substantial and specific danger to public
health or safety." Iowa Code § 70A.28(2); see
also Fraternal Order of Police, Lodge 1 v. City of
Camden, 842 F.3d 231, 241 (3d Cir. 2016) (disagreeing
with defendant's view that police officers were
"chronic complainers" and "squeaky
wheels"). Hedlund has again demonstrated reasonable
minds could reach different conclusions on whether his
disclosure of information evidences the statutory
requirements of Iowa Code section 70A.28(2).
Recovery under section 70A.28.
remand, Hedlund asserts he is entitled to a jury trial and
damages for emotional distress. Although the district court
did not reach the stated issues, the parties extensively
addressed each issue during the summary judgment proceeding.
We address the issues in tandem.
there is no right to a jury trial for cases brought in
equity. Weltzin v. Nail, 618 N.W.2d 293, 296 (Iowa
2000) (en banc). "[L]aw issues are for the jury and
equity issues are for the court." Westco Agronomy
Co. v. Wollesen, 909 N.W.2d 212, 225 (Iowa 2017). To
determine a proceeding as legal or equitable, we look to the
pleadings, relief sought, and nature of the case.
Carstens v. Cent. Nat'l Bank & Tr. Co. of Des
Moines, 461 N.W.2d 331, 333 (Iowa 1990) ("The fact
that an action seeks monetary relief does not necessarily
define the action as one at law."). Hedlund's
petition seeks relief pursuant to subsection 5(a) of
the whistleblower statute. This states,
A person who violates subsection 2 is liable to an aggrieved
employee for affirmative relief including reinstatement, with
or without back pay, or any other equitable relief
the court deems appropriate, including attorney fees and
Iowa Code § 70A.28(5)(a) (emphasis added).
"Under the doctrine of last preceding antecedent,
qualifying words and phrases refer only to the immediately
preceding antecedent, unless a contrary legislative intent
appears." Iowa Comprehensive Petroleum Underground
Storage Tank Fund Bd. v. Shell Oil Co., 606 N.W.2d 376,
380 (Iowa 2000) (en banc). When we look to the language of
section 70A.28(5)(a), "any other equitable
relief" necessarily implies the "affirmative
relief" authorized is equitable. Iowa Code §
70A.28(5)(a); see Fjords N., Inc. v. Hahn,
710 N.W.2d 731, 737-38 (Iowa 2006). We also look to the
intent of our legislature. Fjords, 710 N.W.2d at
738. We note relief under the Iowa Civil Rights Act provides
for actual damages. See Iowa Code §
216.15(9)(a)(8) ("Payment to the complainant of
damages for an injury caused by the discriminatory or unfair
practice which damages shall include but are not limited to
actual damages, court costs and reasonable attorney
fees."). If the legislature intended to permit actual
damages under the relief of section 70A.28(5)(a), it
would have so provided. See Shumate v. Drake Univ.,
846 N.W.2d 503, 516 (Iowa 2014) (holding that the
legislature's "express inclusion" of recovery
rights in one provision but not another indicates the
omission was intentional). Therefore, the affirmative relief
under section 70A.28(5)(a) is equitable relief.
summary judgment stage, the district court determined Hedlund
did not present sufficient evidence "from which a
reasonable jury could infer that age must have actually
played a role in the employer's decision making process
and had a determinative influence on the outcome."
Hedlund both challenges the district court's use of the
McDonnell Douglas analytical framework at the
summary judgment stage and asserts genuine issues of fact
exist that he was a victim of age discrimination.
charges age discrimination in violation of his rights under
chapter 216 of the Iowa Civil Rights Act (ICRA). The ICRA
states, in pertinent part,
It shall be an unfair or discriminatory practice for any . .
. [p]erson to . . . discharge any employee, or to otherwise
discriminate in employment against any . . . employee because
of . . . age . . ., unless based upon the nature of the
Iowa Code § 216.6(1)(a). This is a general
proscription against discrimination and we "look to
the corresponding federal statutes to help establish the
framework to analyze claims and otherwise apply our
statute." Casey's Gen. Stores, Inc. v.
Blackford, 661 N.W.2d 515, 519 (Iowa 2003). Similarly,
in DeBoom v. Raining Rose, Inc., we acknowledged,
"Because the Iowa Civil Rights Act was modeled after
Title VII of the United States Civil Rights Act, we turn to
federal law for guidance in evaluating the Iowa Civil Rights
Act." 772 N.W.2d 1, 10 (Iowa 2009).
warrant submission of his age discrimination claim to the
jury, Hedlund must first establish he was a victim of age
discrimination. See Vaughan v. Must, Inc., 542
N.W.2d 533, 538 (Iowa 1996). This may be accomplished by
direct or indirect evidence. King v. United States,
553 F.3d 1156, 1160 (8th Cir. 2009) ("A plaintiff may
establish her claim of intentional age discrimination through
either direct evidence or indirect evidence."). Hedlund
has offered no direct evidence of discriminatory
intent; therefore, he must rely on indirect
evidence of discriminatory motive. See Smidt v.
Porter, 695 N.W.2d 9');">695 N.W.2d 9, 14 (Iowa 2005) (invoking the
McDonnell Douglas framework at summary judgment when
plaintiff offered no direct evidence of discriminatory intent
under the ICRA); Landals v. George A. Rolfes Co.,
454 N.W.2d 891, 893 (Iowa 1990) ("The McDonnell
Douglas framework cannot be applied where the plaintiff
uses the direct method of proof of discrimination.").
parties disagree as to the appropriate analytical framework
the district court should employ at the summary judgment
stage. Hedlund asserts the McDonnell Douglas
burden-shifting framework should be abandoned for summary
judgment purposes. Defendants contend McDonnell
Douglas remains the appropriate analytical framework at
summary judgment. See, e.g., McQuistion v. City
of Clinton, 872 N.W.2d 817, 828-29 (Iowa 2015) (applying
the McDonnell Douglas framework at summary judgment
when indirect evidence is used to infer discrimination under
the ICRA); Jones v. Univ. of Iowa, 836 N.W.2d 127');">836 N.W.2d 127,
147-48 (Iowa 2013) (affirming grant of summary judgment under
the McDonnell Douglas framework for race and gender
discrimination claim under Title VII); Smidt, 695
N.W.2d at 14 (invoking McDonnell Douglas framework
because plaintiff offered no direct evidence of
discriminatory intent). We do not need to decide this issue
because, either way, we conclude that Hedlund has failed to
raise a genuine issue of material fact.
the familiar McDonnell Douglas burden-shifting
framework, Hedlund must carry the initial burden of
establishing a prima facie case of age discrimination.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802,
93 S.Ct. 1817, 1824 (1973). "The burden then must shift
to the employer to articulate some legitimate,
nondiscriminatory reason" for its employment action.
Id. Finally, the burden returns to Hedlund to
"demonstrate that the proffered reason is a mere pretext
for age discrimination." Rideout v. JBS USA,
LLC, 716 F.3d 1079, 1083 (8th Cir. 2013). In other
words, "[i]f the employer offers a legitimate
nondiscriminatory reason, the plaintiff must show the
employer's reason was pretextual and that unlawful
discrimination was the real reason for the termination."
Deboom, 772 N.W.2d at 6-7 (quoting Smidt,
695 N.W.2d at 15); see Iowa Code §
216.6(1)(a) (It is discriminatory practice for any
person "to discharge any employee . . . because of
the age." (Emphasis added.)); see also Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141,
120 S.Ct. 2097, 2105 (2000) ("That is, the
plaintiff's age must have 'actually played a role in
[the employer's decisionmaking] process and had a
determinative influence on the outcome.'"
(alterations in original) (quoting Hazen Paper Co. v.
Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 1706
McDonnell Douglas, we can assume that Hedlund made
out a prima facie case. Regardless, defendants have produced
legitimate nondiscriminatory reasons for Hedlund's
termination. Hedlund communicated "negative and
disrespectful messages" about DCI and members of its
leadership team with his subordinate employees. Further,
Hedlund drove a state vehicle to Cedar Rapids for nonwork
related purposes and was deceptive about his work status when
questioned. Simply put, defendants contend Hedlund was served
notice of his termination after he violated multiple DCI
departmental rules and regulations. These are legitimate,
nondiscriminatory reasons for defendants' actions.
Hedlund now retains the ultimate burden of producing evidence
from which a reasonable jury could conclude the
defendants' proffered reasons were pretextual "and
that unlawful discrimination was the real reason for the
termination." Smidt, 695 N.W.2d at 15.
rebut the legitimate nondiscriminatory reasons, Hedlund
relies on remarks made by Meyers. Hedlund first contends
Meyers in a February 2013 meeting with Hedlund made reference
to Hedlund being in the "twilight of his career."
Hedlund next contends that Meyers later inquired in a
conference call in February 2013 as to when Hedlund and other
SAC were planning to retire. The district court concluded
such remarks were insufficient to support an inference of age
discrimination, and we agree. Employers may make reasonable
inquiries into an employee's retirement plan. See Cox
v. Dubuque Bank & Tr. Co., 163 F.3d 492, 497 (8th
Cir. 1998) ("[M]any courts have recognized that an
employer may make reasonable inquiries into the retirement
plans of its employees."); Moore v. Eli Lilly &
Co., 990 F.2d 812, 818 (5th Cir. 1993) (A new supervisor
may make "reasonable inquiries about the ages of the
members of his work force and their known plans for the
future-facts on which to gauge the anticipated longevity of
his crew."); Colosi v. Electri-Flex Co., 965
F.2d 500, 502 (7th Cir. 1986) ("[A] company has a
legitimate interest in learning its employees' plans for
the future, and it would be absurd to deter such inquiries by
treating them as evidence of unlawful conduct."). In
fact, Hedlund was approaching, if he had not already
attained, the permissible statutory retirement age for DPS
officers. See Iowa Code § 97A.6(1)(a)
(authorizing retirement with full benefits at fifty-five
years of age and twenty-two years of service). At this point,
a DPS officer-having dedicated the better part of his or her
career to the state's vital public safety mission-may
have incentive to retire from DPS and potentially pursue
isolated remarks, such as "twilight of his career,"
are not sufficient on their own to show age discrimination.
Forman v. Small, 271 F.3d 285, 293-94 (D.C. Cir.
2001) (remarks referring to plaintiff as "over the
hill" and in the "twilight of his career"
insufficient to rebut defendant's nondiscriminatory
reason for denying plaintiff a promotion). To infer such
discriminatory feelings influenced decision makers, we look
to "the relevant time in regard to the adverse
employment action complained of." Id.; see
Hunt v. City of Markham, 219 F.3d 649, 652 (7th Cir.
2000) (It is possible to infer decision makers were
influenced by discriminatory feelings "when the decision
makers themselves, or those who provide input into the
decision, express such feelings (1) around the time of, and
(2) in reference to, the adverse employment action complained
of."). The remarks alone do not infer that the decision
to terminate Hedlund was influenced by discriminatory
feelings. The record reveals the reasonableness of
Meyers's remarks as well as the remoteness in time. These
remarks occurred five months prior to the adverse employment
action of which Hedlund complains. Hedlund testified in his
deposition as follows:
Q. We've talked a little bit about that meeting, I
believe, but in the course of that meeting, you indicate that
"AD Meyers stated two or three times during the course
of that meeting that Hedlund was in the, quote, twilight of
his career, end quote." A. He made reference to me being
in the twilight of my career, yes.
Q. Can you put that in context? What were you folks
discussing when he made those comments? A. My recollection is
he made a comment along the lines of he didn't want to
have issues with me because I was in the twilight of my
career. That's the best context I can recall it in.
Q. Other than that meeting on February 15, 2013, did Gerard
Meyers use those words "twilight of your career" in
any other conversations? A. No, not that I recall.
Q. Has Charis Paulson ever used such terms as "twilight
of your career" in any conversation she's had with
you? A. No.
similarly explained in his deposition:
Q. On the meeting that you had on February 15, 2013 . . . did
you make the comment to Hedlund that he was in the twilight
of his career? A. Yes, I did.
Q. Did you make that comment to him more than once? A. I
believe it was just once.
Q. Did you make any-did you ever discuss with Hedlund when he
was going to retire? A. Yes. I believe when I mentioned the
twilight of his career, I was referring to his longevity and
the ability that he had to rather than work cases, mentor
personnel within his assigned region.
As for the retirement question that you asked, it's my
recollection that at some point during this departmental
strategic planning effort . . . each bureau AD was directed
to inquire with any personnel of senior status to determine
what their plans may be since we have a very young division
and we were struggling to maintain the necessary
institutional knowledge and experience.
of this kind "are remote in time and do not support a
finding of pretext for intentional age discrimination."
See Walton v. McDonnell Douglas Corp., 167 F.3d 423,
427-28 (8th Cir. 1999) (affirming summary judgment because
plaintiff failed to present sufficient evidence of pretext
under McDonnell Douglas with remarks that occurred
two years earlier). Taken in a light most favorable to
Hedlund, Meyers's remarks occurred five months prior to
Hedlund's notice of termination and are insufficient to
establish pretext of age animus. See Ortiz-Rivera v.
Astra Zeneca LP, 363 Fed.Appx. 45, 48 (1st Cir. 2010)
("[M]ere generalized 'stray remarks' . . .
normally are not probative of pretext absent some discernable
evidentiary basis for assessing their temporal and contextual
relevance." (quoting Straughn v. Delta Air Lines,
Inc., 250 F.2d 23, 36 (1st Cir. 2001))).
also attempts to show defendants' asserted reasons for
his termination were pretextual by demonstrating Meyers
filled Hedlund's position with a somewhat younger
employee. Michael Krapfl, a forty-five year old with
twenty-five years of law enforcement experience, was promoted
into Hedlund's position; Hedlund was fifty-five years old
with twenty-five years of law enforcement experience at the
time of his termination. Hedlund cites Landals for
the proposition that a sufficient inference of discrimination
may be drawn when a plaintiff's position is eliminated
and a younger employee assumes those responsibilities. 454
N.W.2d at 895. But Landals is an example of specific
circumstances allowing for an inference of age
discrimination. Generally, evidence that a younger
person replaced the plaintiff's position is insufficient
to create a reasonable inference of age discrimination.
See Tusing v. Des Moines Indep. Cmty. Sch. Dist.,
639 F.3d 507, 520 (8th Cir. 2011) ("This fact, in
isolation, is insufficient to create a reasonable inference
of age discrimination."); Carraher v. Target
Corp., 503 F.3d 714, 719 (8th Cir. 2007) ("Although
[plaintiff] was replaced by someone substantially younger
than him, in this case 28 years younger, we have previously
held that this fact . . . possesses 'insufficient
probative value to persuade a reasonable jury that
[plaintiff] was discriminated against." (quoting
Nelson v. J.C. Penney Co., 75 F.3d 343, 346 (8th
Cir. 1996))). Hedlund does not provide sufficient evidence,
beyond indicating an employee, younger by ten years, filled
his position, to support that defendants' proffered
reasons were mere pretext. The promotion of Krapfl does not
cast doubt on defendant's contention that Hedlund was
terminated for violating DCI departmental rules and
regulations. Cf. Waldron v. SL Indus., Inc., 56 F.3d
491, 496-97 (3d Cir. 1995) (holding when employer "split
[plaintiff's] job, fired him, offered one-half of his
former job to a younger person while the other half remained
unadvertised, and then recombined the jobs and placed the
younger employee in the recombined post" it cast
sufficient doubt on plaintiff's discharge as part of the
promotion of Krapfl also leads Hedlund to assert Meyers would
give the lowest promotability scores to the oldest
candidates. The summary judgment record indicates four
special agents have sought promotion. Yet Hedlund only
provided data for three of them: Ray Fiedler, born in 1962;
Jim Thiele, born in 1965; and Michael Krapfl, born in
1969. The promotional process includes a
written test, interview, and a promotability score. Hedlund
argues Fiedler and Thiele, the oldest of the three, received
the bottom two promotability scores. Although
"subjective promotion procedures are to be closely
scrutinized because of their susceptibility to discriminatory
abuse," Royal v. Mo. Highway & Transp.
Comm'n, 655 F.2d 159, 164 (8th Cir. 1981), Hedlund
has not provided any evidence showing Meyers made the
promotional decision based on age. The summary judgment
record indicates neither Thiele nor Fiedler believe age had
anything to do with the promotion. Fiedler's written test
score was "probably middle of the pack," and he
admitted, "[T]here have been other guys my age
promoted." In fact, Thiele did not even apply for
Hedlund's vacant position but has taken the written test
every year since 2007. There is no evidence sufficient to
support an inference of age discrimination based on the
promotability scores of the oldest candidates.
all inferences in Hedlund's favor, Hedlund has failed to
present sufficient evidence from which a reasonable jury
could infer that defendants' legitimate,
nondiscriminatory reason for termination was pretextual and
that age discrimination was the real reason for his
termination. Our rule governing summary judgment indicates
Hedlund "must set forth specific facts showing that
there is a genuine issue for trial." Iowa R. Civ. P.
1.981(5). Even with the formulated assistance of the
McDonnell Douglas framework, Hedlund has not moved
beyond generalities. Slaughter v. Des Moines Univ. Coll.
of Osteopathic Med., 925 N.W.2d 793, 808 (Iowa 2019)
("Summary judgment is not a dress rehearsal or practice
run; 'it is the put up or shut up moment in a lawsuit . .
. .'" (quoting Hammel v. Eau Galle Cheese
Factory, 407 F.3d 852, 859 (7th Cir. 2005))).
similar reasons, we find that there is insufficient evidence
to withstand summary judgment outside of the McDonnell
Douglas framework. Meyers's comments related to
retirement rather than age. They did not show animus toward
age. The comments came several months before the termination
decision, with many events intervening before that decision,
including Hedlund's trip to Cedar Rapids and the report
on the Governor's vehicle doing a "hard
ninety." This is not enough to allow a reasonable jury
to infer that defendants attempted to terminate Hedlund
"because of" age.
Intentional Infliction of ...