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Labor & Employment Newsletter
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The Iowa State Bar Association's
Labor & Employment Section's
Newsletter


Newsletter Committee Co-Chairs:
Greg Naylor, Whitfield & Eddy, P.L.C. and Tom Foley, Babich Goldman, P.C.


TABLE OF CONTENTS
"Point/Counterpoint” on UT Southwestern Medical Center v. Nassar
by Nathan Overberg & Melissa Hasso

"Point/Counterpoint” on Vance v. Ball State University
by Whitney Judkins and Kelsey Knowles

"IN CASE YOU MISSED IT ...” (A Brief Review of Recent Labor & Employment Law Developments)
by Greg Naylor

Recent Developments in Iowa Employment Law
by Kate Ervin Carlson

Wrongful Discharge Claims in Iowa: Defining Iowa Public Policy After Springer and Fitzgerald
by Thomas W. Foley

"Point/Counterpoint” on UT Southwestern Medical Center v. Nassar

By

Nathan Overberg – Ahlers & Cooney, P.C.

and

Melissa Hasso – Sherinian & Hasso Law Firm

In an important employment decision rendered during the 2012 term, the United States Supreme Court held in Univ. of Tex. Southwestern Med. Ctr. v. Nassar, 133 S. Ct. 2517 (U.S. 2013) that a "but-for” causation standard applies to Title VII retaliation claims, rather than the lower "motivating factor” standard applicable to Title VII discrimination claims.

The Employer’s View

By Nathan Overberg

At issue in Nassar was how to interpret the causation requirement contained in Title VII’s anti-retaliation provisions. Importantly, these anti-retaliation provisions are contained in section 2000-3(a), in contrast to the provisions prohibiting discrimination based on race, color, religion, sex, and national origin (what the Court refers to as "personal characteristics”) that are set forth in section 2000e-2. The Court recognized that in 1991 Congress statutorily lowered the causation standard for discrimination claims based on personal characteristics outlined in section 2000e-2, but Congress did not attempt to alter the causation standard applicable to retaliation claims outlined in section 2000e-3.

The majority’s opinion is a straightforward application of tort law and statutory construction. The Court recognized that causation in fact (but for x, y would not happen) is a standard requirement of any tort claim, including statutory tort claims. In its prior decision in Gross, the Court was called upon to interpret the phrase "because of age” contained in the ADEA. Applying the dictionary meaning of "because,” as well as years of prior jurisprudence interpreting the term, the Court held that "because of age” means "but for” the person’s age, the adverse action would not have happened. The Court in Nassar relied in part on the same analysis. Section 2000e-3 prohibits conduct which is taken "because” the employee opposed an unlawful practice. "Because” necessarily means the same thing whether it is used in the ADEA or in Title VII’s retaliation provision; that is, it references a "but for” relationship. In the Title VII retaliation setting, it means that the individual must prove that "but for” the individual’s opposition to unlawful conduct, the adverse action would not have been taken.

From a practical perspective, the Court acknowledged that retaliation claims have become the proverbial tail wagging the dog. Retaliation claims have nearly doubled in the past 15 years and they now outpace all status-based discrimination except race discrimination claims. As with most civil rights statutes, there remains a need for the protection provided by Title VII’s anti-retaliation provision.

However, the Court’s decision applies a common sense reading of the statutory text and well-established causation principles. Employers should not hold out hope that this decision will lessen the extensive use of the retaliation provision by employees in the near term. This decision should, however, give employers some solace in knowing that should an employee pursue a retaliation claim in court, he will be required to prove that he would not have been disciplined/discharged but for his previously filed complaint of discrimination. Indeed, an employer may now have a higher level of confidence that, if an adverse action is based on an employee’s poor performance or misconduct, summary judgment or a defense verdict on a resulting retaliation claim is possible, even if the adverse action is taken after the employee had registered a complaint of discrimination.

An unfortunate practical side effect of the Nassar decision may be an increase in employees ignoring federal claims in favor of filing discrimination claims under the Iowa Civil Rights Act, Section 216.6, despite the state law’s clear prohibition against discrimination "because of” the individual’s protected-class standing. The Iowa Supreme Court decision in DeBoom v. Raining Rose appeared to ignore the dictionary and long-standing tort law jurisprudence, interpreting the term "because” to mean something other than "but for” causation for purposes of applying section 216.6. Indeed, the Court in DeBoom rather nonchalantly substituted the phrase "motivating factor” for the phrase actually used by the legislature: "because of,” thus making the DeBoom decision ripe for review in light of the decisions in Gross and Nassar. This is especially true for retaliation claims insofar as the anti-retaliation section of the Iowa Civil Rights Act is separate and distinct from section 216.6 (which was addressed in DeBoom), and utilizes the same "because of” language analyzed by the Court in Nassar.

The Employee’s View

By Melissa Hasso

Nassar has made it significantly easier for employers to escape liability for retaliation against employees who are brave enough to voice discrimination complaints. Many employees are already fearful of angering their supervisors and risking their livelihood by reporting workplace discrimination. The threat that employers would be held accountable for retaliatory actions has been essential for ensuring that employers prevent and correct discriminatory conduct.

The Nassar majority opinion relies primarily on statutory interpretation principles. Title VII’s anti-retaliation provision is in a different section than its anti-discrimination provision, and in 1991 Congress amended Title VII to apply the "motivating factor” standard to the anti-discrimination section. Following Gross v. FBL Financial Servs. Inc., the majority concluded that because Congress did not amend the anti-retaliation provision to add the "motivating factor” standard, the traditional "but for” standard must apply to retaliation claims.

Justice Ginsberg artfully debunks the majority’s reasoning in her critical dissent. She exposes its fundamental error of separating retaliation claims from discrimination claims, noting that in a line of decisions unbroken until Nassar, the Court has held that a ban on discrimination necessarily encompasses retaliation. "Until today,” she writes, "the Court has been clear eyed on just what retaliation is: a manifestation of status-based discrimination.” She continues, "Retaliation is discrimination ‘on the basis of sex’ because it is an intentional response to the nature of the complaint: an allegation of sex discrimination.” Justice Ginsberg’s dismay is evident: "It is strange logic indeed to conclude that when Congress homed in on retaliation and codified the prescription, as it did in Title VII, Congress meant protection against that unlawful employment practice to have less force than the protection available when the statute does not mention retaliation.”

The Supreme Court’s previous stance as to the importance of anti-retaliation measures makes Nassar particularly bewildering. In recent years, the Supreme Court has repeatedly acknowledged the importance of strong anti-retaliation provisions, recognizing that "fear of retaliation is the leading reason why people stay silent” about discrimination. Crawford v. Metropolitan Gov’t of Nashville and Davidson Cty. (2009). "Title VII depends for its enforcement upon the cooperation of employees who are willing to file complaints and act as witnesses.” Burlington N. & S. F. R. Co. v. White (2006). While the Court’s majority opinion has evidently concluded that discrimination is a problem of the past, the four dissenting justices (including the three females justices) know better.

Where does Nassar leave Title VII retaliation plaintiffs? Most likely pursuing their claims in state court, where courts still recognize the importance of strong anti-retaliation remedies in eliminating workplace discrimination. Perhaps Congress will take the four dissenting justices’ rationale to heart and correct the error legislatively. Until then, Nassar will make it harder to root out discriminatory workplace practices.



"Point/Counterpoint” on Vance v. Ball State University

By

Whitney Judkins – Fiedler & Timmer, P.L.L.C

and

Kelsey Knowles – Belin McCormick, P.C.

In the recent employment decision of Vance v. Ball State University, the U.S. Supreme Court decided a question previously left open in Burlington Indus. v. Ellerth, 524 U.S. 742 (U.S. 1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (U.S. 1998): specifically, who qualifies as a "supervisor” when an employee asserts a Title VII claim for workplace harassment?

The Employer’s View

By Kelsey Knowles

In the Supreme Court’s recent decision in Vance v. Ball State Univ., 133 S. Ct. 2434 (U.S. 2013), the Court defined "supervisor” for purposes of the Ellerth/Faragher defense as someone the employer has "empowered” to take "tangible employment actions against the victim, i.e., to effect a ‘significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” 133 S.Ct. 2434, 2443 (2013). There are three primary reasons I believe the standard the Court articulated is appropriate.

First, the standard is clear and well defined. While the Court’s "supervisor” definition was accepted in the Eighth Circuit prior to Vance, e.g., Weyers v. Lear Operations Corp., 359 F.3d 1049, 1057 (8th Cir. 2004), the lack of nationwide clarity led to continued debate about who should be considered a supervisor. No longer will we be required to guess or litigate about who is a supervisor. Parties and courts should be able to agree whether an alleged harasser constitutes a supervisor and, accordingly, which standard for liability applies. There are always many factual disputes in employment litigation—there are two sides to every story—this is one area where we can eliminate factual disputes and clearly define what legal standard should apply.

Second, the standard is consistent with the increased level of liability and shifted burden imposed in Ellerth/Faragher. Ellerth and Faragher rested on the understanding that "supervisors” were "aided” in accomplishing their harassment by their agency relationship with the employer. In short, the employer vested supervisors with authority to take tangible employment action against employees and supervisors were aided in harassing other employees because of their power to take such action. I agree with the Court that when an employer trusts one of its employees and vests him or her with authority to take tangible employment against another employee, it should assume an increased level of responsibility. This decision clarifies that standard by making clear that the employer gets to determine which employees are worthy of that trust.

Finally, I think this standard allows employment lawyers to better advise their clients on ways to decrease and prevent harassment in the workplace. While it is always beneficial for employers to provide discrimination and harassment training to employees, this decision highlights the importance of training those in with authority to control the economic employment situation of staff employees. Now that there is a clear, nationwide legal definition of "supervisor,” we can better counsel employers on how to provide additional training to supervisors and how to help supervisors understand the importance of their role in preventing and remedying harassment.

The Employee’s View

By Whitney Judkins

The Supreme Court has long held that employers can be held vicariously liable for a supervisor’s harassment of an employee because supervisors are often enabled by their agency relationship with the employer to commit the harassment. In narrowing the definition of a supervisory employee, however, the Vance decision undermines Title VII’s goal to rid the workplace of discrimination and harassment.

As Justice Ginsburg points out in her dissent, the majority opinion ignores the reality of the workplace for many Americans. In many workforces, the chain of command starts with a "team leader,” or similar individual, who does not have the authority to hire or fire employees, but certainly has the power to alter the conditions of the work environment—such as setting schedules and assigning duties. Most employees would logically believe that this person was their supervisor. However, the Court holds in Vance that, even though this would-be supervisor has the ability to control nearly every aspect of an employee’s job, he is not actually a supervisor simply because he does not have the power to take "tangible employment action” against the employee.

Thankfully, there are a couple of qualifiers in the opinion to help workers. First, the Court makes it clear that a supervisor is still a "supervisor” even when her ability to take tangible employment action is subject to approval by someone else. Vance, 133 S.Ct. at 2446, n. 8. This means employers won’t be able to escape vicarious liability simply by enacting a policy that requires every decision that might affect someone’s employment status to be approved by someone else.

Second, the Court clarified that, even when the economic consequences of an employment decision are only tangential, they will be sufficient to confer supervisory status on a decision maker, thereby solidifying a more flexible definition of "tangible employment action.” Id. at 2447, n. 9. For example, if the harasser suspended the employee without pay, meted out disciplinary action which foreclosed promotional opportunities, or reassigned the employee to duties which stripped her of the opportunity to be advanced, then he had the authority to take tangible employment action and he is a "supervisor.”

One final bright spot in the Vance decision is the Court’s clear indication that an employer’s potential negligence goes well beyond failure to take prompt and appropriate remedial action when it has notice of harassment in the workplace. The Court repeatedly stated that an employer can be liable for permitting the harassment to occur in the first place. "As an initial matter, an employer will always be liable when its negligence leads to the creation or continuation of a hostile work environment.” Id. at 2452 (emphasis added). A plaintiff can prevail by showing her "employer was negligent in failing to prevent harassment from taking place.” Id. at 2453.


"IN CASE YOU MISSED IT ...”

(A Brief Review of Recent Labor & Employment Law Developments)

By Greg Naylor

Whitfield & Eddy, P.L.C.

"In case you missed it," this article briefly highlights a few recent regulatory, legislative, and case developments in the labor and employment area that may impact your practice:

1. ADR: High Court Reaffirms Deference to Arbitration Agreements

In its recent decision in American Express v. Italian Colors Restaurant, 133 S. Ct. 2304 (U.S. 2013) the U.S. Supreme Court reaffirmed its support for arbitration, provided the plaintiff is clearly able to pursue his/her underlying statutory rights. The ruling addressed several lower-court decisions that had interpreted the high court’s earlier decision in AT&T Mobility, LLC v. Concepcion as rejecting arbitration agreements as unconscionable if the plaintiff establishes that it could be economically infeasible to pursue his/her statutory rights in arbitration. The Court emphasized in American Express that deference to arbitration is not only appropriate but desirable where the parties have agreed to use this ADR process.

2. Unemployment: Iowa S.F. 110 Requires Employer Participation in IWD Fact-Finding

During the 2013 Iowa legislative session, Senate File 110 was passed to bring Iowa into compliance with a federal mandate requiring state legislation to limit overpayments in the unemployment insurance system. One of the primary provisions of SF 110 was to require employers to actively participate in IWD fact-finding interviews via live phone participation or via written declaration.

Prior to July 1, 2013, overpayments frequently occurred where the claimant prevailed at fact-finding, partially as a result of the employer’s failure to participate, after which the benefit award was overturned in a subsequent hearing before an ALJ. If the employer later prevailed at the hearing level, its account would be relieved of the benefits charges collected by the claimant while the claim was being adjudicated. However, under the amended legislation, the employer’s account will not be relieved of charges if the employer was AWOL at the initial fact-finding level.

3. Workplace Privacy/Confidentiality: Get Ready For Google Glass

Even as employers struggle with policing employee social media disclosures, here comes Google Glass, raising new policy-related questions regarding privacy/workplace technology. Recognizing that the product can facilitate surreptitious video recordings in the workplace, employers are hustling to adopt policies to protect against possible HIPAA violations in the healthcare industry, the potential release of proprietary, trade secret, and confidential employer information via uploads to the Internet, and employment privacy, harassment, and other workplace claims. But take care in your drafting, the NLRB continues to aggressively scrutinize employer policies that the agency claims will infringe upon the NLRA-protected Section 7 rights of employees.

4. Social Media Policies: NLRB Administrative Decisions and Advice Memos Strike at Employer Social Media Policies

In July 2013, yet another NLRB advisory memo was released addressing the propriety of a social media policy issued by the grocery chain, Food Giant, which prohibited employee:

· disclosure of confidential business information;

· use of company trademarks and logos;

· disparagement of company products via the Internet

While affirming the employer’s right to prohibit the disparagement of company products and services, the NLRB was not supportive of the grocery chain’s overly broad social media restrictions (a) seeking to protect vaguely described "confidential” company information and (b) prohibiting non-commercial use of the company logos/trademarks in social media discussions that involved protected employment communications under the NLRA.

5. Compensable Time Under the FLSA: Eighth Circuit "Donning and Doffing” Ruling Favors Employers

In the case of Adair v. ConAgra Foods, Inc., 728 F.3d 849 (8th Cir. 2013), the Court of Appeals revisited the Supreme Court’s decision in IBP, Inc. v. Alvarez, 546 U.S. 21 (2005), which found that employees donning and doffing protective equipment, along with their subsequent walk to a timeclock, was compensable activity under the FLSA. In ConAgra, labor contracts between ConAgra and its unions stipulated that employees’ pre- and post-shift suiting up and the stroll to the timeclock were not compensable time. Drawing upon the statutory definition of "principal activity” as an activity "which the employee is employed to perform,” the Eighth Circuit found that ConAgra employees dressing and walking to the timeclock were not compensable.

6. New OFCCP/AAP Rules: New Affirmative Action Requirements for Federal Contractors

Effective March 24, 2014, new OFCCP rules will require direct federal contractors and their subs to adopt annual affirmative action recruiting benchmarks of up to 8% for military veterans covered under the Viet Nam Era Veterans Readjustment Act of 1974, and up to 7% utilization requirements for individuals with disabilities under Section 503 of the Rehabilitation Act of 1973. While applicability of the rules is dependant upon some jurisdictional thresholds, your covered contractor clients will not want to delay in preparing to update their affirmative action plans.

7. Unpaid Intern Wage-Hour Exemption: Litigation Seeks to Protect Unpaid Interns Under the FLSA

Do any of your clients use unpaid interns? Better check those relationships, given the recent, rapid growth of wage-hour litigation contesting the use of unpaid interns by Warner Music, NBCUniversal, Conde Nast, Hearst Corporation, PBS, and others. A narrow minimum wage and overtime exemption exists for unpaid interns:

· that work as part of a structured educational experience for the benefit of the intern,

· that don’t displace regular employees,

· their work doesn’t provide an immediate advantage to the business or entitle the intern to a job after the internship,

· and the parties have agreed in advance that the intern is not entitled to wages for the time spent.

8. Fall 2013 SCOTUS Cases: Important Employment Decisions

As the October 2013 term opened, the U.S. Supreme Court was set to consider the case of NLRB v. Noel Canning (No. 12-1281) challenging the authority of the Obama administration to make recess appointments to NLRB vacancies that arose while Congress was in session, including whether the official actions of the interim Board with its recess appointees were valid. Also, the case of Unite Here Local 355 v. Mulhall (No. 12-99) will address whether a Memorandum of Agreement, permitting a labor organization access to employer property to organize workers in return for union cooperation with the employer on other issues, violates the Labor Management Relations Act.

9. DOL/NLRB: Obama Administration Appointments Confirmed

Look for aggressive agency enforcement and rule-making actions from the Department of Labor and National Labor Relations Board in the future, now that the Senate has confirmed the appointment of Thomas Perez as the Secretary of Labor, and the NLRB finally has a full complement of five Senate-confirmed members, with pro-labor appointees holding the majority.

10. OSHA: Updated Hazardous Communication Training Required

OSHA has modified the Hazard Communications Standards (HCS) to adopt the Globally Harmonized System (GHS) to improve the effectiveness of employment communications on chemical hazards. All employees are to be trained on the new label elements (i.e., pictograms, signal words, hazard statements, etc.) and the Safety Data Sheet (SDS) format by December 1, 2013. The deadline for full compliance with the final rule is set for 2015.



Recent Developments in Iowa Employment Law

Katie Ervin Carlson

BABICH GOLDMAN, P.C.

501 S.W. 7th Street, Suite J

Des Moines, IA 50309

(515) 244-4300

Facsimile (515) 244-2650

Email: kcarlson@babichgoldman.com

I. Wrongful Termination – Public Policy

A. Berry v. Liberty Holdings, Inc., 803 N.W.2d 106 (Iowa 2011).

Defendant fired Plaintiff after Plaintiff received a personal injury settlement from Defendant following an automobile accident. Plaintiff sought to utilize Iowa’s comparative fault statute as the source of his public policy claim. The Court held that in order to support a public policy claim, "[t]he statute relied upon must relate to the public health, safety, or welfare and embody a clearly defined and well-recognized public policy that protects the Plaintiff’s activity.” The Court noted that in enacting the comparative fault statute, the legislature made no pronouncements regarding the public’s health, safety, morals, or general welfare of the state’s citizens. Iowa’s comparative fault statute, therefore, fell short of the threshold necessary to form the basis of a cognizable public policy claim.

B. Dorshkind v. Oak Park Place of Dubuque II, LLC, 2012 WL 4900430 (Iowa App. 2012) (Unpublished Disposition); 835 N.W.2d 293 (Iowa 2013) (on Further Review)

Plaintiff marketing director of assisted living facility internally reported that she believed she witnessed two co-employees falsifying state-mandated training documents related to the care of dementia patients and also that she believed the two co-employees were having an affair. When Defendant could not substantiate the allegations, the Defendant fired the Plaintiff. Plaintiff claimed that her termination was in retaliation for her internal complaints, and that her termination violated the public policy of the state of Iowa.

The Court held that Iowa Code § 231 and Iowa Administrative Code r. 321, both of which govern assisted living facilities, make a clear statement of public policy to encourage the establishment and maintenance of a safe environment for tenants, requiring training to ensure safety. That public policy would be undermined if facilities were permitted to discharge plaintiffs for voicing concerns about falsification of training documents, and therefore, Plaintiff stated a claim for wrongful termination in violation of the public policy of the state of Iowa.

The Supreme Court granted further review, and affirmed the Court of Appeals’ holdings with regard to the existence of a public policy and that the policy would be undermined if employees could be fired for voicing their concerns. In doing so, one of the issues the Court examined was whether internal complaints can form the basis of a public policy claim. The Court found that it could, noting, "[p]reventing the retaliatory termination of internal whistleblowers no only shields the employee from tortious conduct, but also protects the public by ensuring ‘infractions of rules, regulations, or the law pertaining to public health, safety, and the general welfare’ are properly reported.”

At trial, the district court permitted the jury to consider and award punitive damages against the employer based on Jasper’s recognition of administrative regulations as a source of public policy. The Supreme Court reversed given that at the time of the plaintiff’s complaints and termination, Jasper had not been decided. Thus, the employer could not willfully and wantonly disregard the plaintiff’s rights when at the time of the discharge Iowa did not recognize a public policy claim based on administrative rules.

C. Zwanziger v. O’Brien, 2012 WL 4513836 (Iowa App. 2012) (Unpublished Disposition).

Plaintiff brought a claim under Iowa Code § 70A.29, Iowa’s whistleblower statute. The Court found no error in the district court’s decision to strike the Plaintiff’s jury demand, holding that a claim under Iowa’ whistleblower statute is one in equity, and that a jury trial is not guaranteed under the constitution for actions in equity. The Court also held that because Iowa’s whistleblower statute does not allow for damages for emotional harm, the Plaintiff was not entitled to those damages.

D. McMichael v. MidAmerican Energy Co., 2012 WL 5356138 (Iowa App. 2012) (Unpublished Disposition).

Plaintiff claimed he was terminated because he suffered a work-related injury. Plaintiff, a member of a union, went through union arbitration after his termination and then later sought to bring a claim for wrongful termination in violation of the public policy of Iowa in state court. Plaintiff was unrepresented by counsel at the union arbitration, and the union did not arbitrate the retaliatory discharge claim; it focused solely on whether Plaintiff was fired for just cause. The Court on appeal held that the wrongful discharge claim was not adjudicated on the merits in the union arbitration proceeding, and Plaintiff’s common law public policy claim was not within the scope of the CBA. Therefore, Plaintiff could litigate his claim for wrongful termination in violation of the public policy of Iowa in state court.

E. Newell v. JDS Holdings, L.L.C., 834 N.W.2d 463 (Iowa App. 2013).

Plaintiff alleged wrongful termination in violation of the public policy of the state of Iowa, defamation, and intentional interference with prospective business advantage. The plaintiff’s wrongful termination claim was based on her initial reluctance to sign a revised employee handbook without first consulting an attorney. Initially, the Plaintiff signed the handbook but indicated that she had a problem with one of its provisions. The employer gave the plaintiff an ultimatum—sign the handbook without qualification or face termination. In the end, the plaintiff signed the handbook, without qualification. Subsequently, the employer fired the Plaintiff, giving multiple reasons for the termination, one of which was the Plaintiff’s refusal to sign the employee handbook multiple times. The Court affirmed summary judgment in the employer’s favor on the wrongful discharge and intentional interference claims, but reversed on the defamation claim.

The Court found that the plaintiff could not establish the third and fourth elements: that she was engaged in protected activity and that was the reason for her termination, and that there was no business justification for her termination. The Court found that while one of the reasons the employer gave for the Plaintiff’s termination was her refusal to sign the employee handbook, it was just one of several reasons and thus summary judgment was appropriate.

As to the intentional interference claim, the Court found that the plaintiff presented no evidence that her former supervisor communicated misinformation with the intent of getting the Plaintiff fired, and there was no evidence that the supervisor had any vendetta against the Plaintiff and engaged in conduct to ensure that plaintiff was fired. Thus, summary judgment was appropriate on that claim as well.

II. Iowa Civil Rights Act (Iowa Code Ch. 216)

A. Nelson v. James H. Knight DDS, P.C., 2012 WL 6652747 (Iowa 2012).

Plaintiff brought claim under ICRA alleging sex discrimination after her dentist employer terminated her at the request of his wife because she was concerned about the nature of the Defendant’s relationship with the Plaintiff. The Court was faced with the following question: Can an employee who has not engaged in flirtatious conduct be lawfully terminated simply because the boss views the Plaintiff as an irresistible attraction?

Plaintiff worked as a dental assistant. During the last year and a half of Plaintiff’s employment, the Defendant complained that Plaintiff’s clothing was too tight, revealing, distracting, and that he did not think it was good for him to see her wearing things that accentuated her body. The Plaintiff and dentist texted each other during the last six or so months of Plaintiff’s employment, though neither objected to the communication and it focused largely on their children. Plaintiff denied ever flirting with dentist or seeking an intimate or sexual relationship with him.

Dentist once told Plaintiff that if she saw his pants bulging, she would know her clothing was too revealing. When dentist once told Plaintiff that her shirt was too tight, he responded that if she wore a tight shirt and tight pants, dentist would get it "coming and going.” When Plaintiff made a comment about the infrequency of her sex life, dentist responded, "[T]hat's like having a Lamborghini in the garage and never driving it.” Dentist once asked Plaintiff how often she experienced an orgasm.

Ultimately, Defendant fired Plaintiff because his wife confronted him and demanded that he do so because she viewed Plaintiff as a threat to their marriage. Dentist and his wife consulted with their pastor who agreed with the decision. Dentist informed Plaintiff at the termination meeting that their relationship had become a detriment to his family and it was in the best interests of both their families that the employment relationship end. Later, with his pastor present, dentist told Plaintiff’s husband that he was afraid he was going to have an affair with Plaintiff if he did not fire her.

Plaintiff argued that her termination was in violation of the ICRA because she would not have been terminated "but for” her sex. The Court focused on cases that hold an employer does not engage in unlawful gender discrimination by discharging a female Plaintiff who is involved in a consensual relationship that has triggered personal jealousy, even if the jealousy would presumably not have been an issue if the Plaintiff were male.

The Court noted that while civil rights laws seek to insure that Plaintiffs are treated the same regardless of their sex or other protected status, an unfair decision to terminate the Plaintiff does not jeopardize that goal (especially when a female replacement was hired). The Court found that in this case, it was the relationship the Plaintiff had with the dentist, not the Plaintiff’s gender, that was the reason for the termination. The Court held that the outcome may be different if the dentist engaged in a pattern of firing several women for the same reason; perhaps then it would be possible to infer that gender was a motivating factor. The Court also found that the Plaintiff could not show that her termination was based in any way on her failure to conform to a particular sex stereotype.

B. Knudsen v. Tiger Tots Community Child Care Center, Corp., 2013 WL 85790 (Slip Op.) (Iowa App., Jan. 9, 2013).

In the first disability discrimination claim analyzed by an Iowa appellate court since the passage of the ADAAA, Plaintiff, the mother of a young child, approached management at Defendant day care center about enrolling her child at the center. Plaintiff advised the center’s management that her child had a tree nut allergy and discussed an emergency care plan with the center's director. The center director advised Plaintiff that Plaintiffs child could not be accepted, due to "staffing and liability” concerns. Plaintiff brought a disability discrimination claim under the ICRA.

The Court fell short of expressly adopting the ADAAA, but relied on a key provision in the Amendments Act: "An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” 42 U.S.C. § 121 02(4). The Court reversed and remanded for the district court to determine if the tree nut allergy would substantially limit a major life activity "when active.”

C. Ackelson v. Manley Toy Direct, L.L.C., 832 N.W.2d 678 (Iowa 2013).

The Court considered whether punitive damages are available to prevailing plaintiffs under the Iowa Civil Rights Act. The Court’s analysis was one of statutory interpretation, in which the Court found its task to be ascertaining the intent of the Iowa Legislature. The Court noted that it has "clearly and repeatedly stated [its] conclusion that the ICRA does not implicitly permit an award of punitive damages,” and has been doing so for the last twenty-seven years. Despite that, the Iowa Legislature made no changes to the ICRA; thus, punitive damages are not available.

D. Salami v. Von Maur, Inc., 838 N.W.2d 680, 2013 WL 3864537 (Iowa App. 2013) (Unpublished Disposition).

The Plaintiff brought a claim of race discrimination and harassment against her former employer. At trial, the plaintiff sought to introduce "me too” evidence of two former employee of Von Maur, both African American, who were supervised by the Plaintiff’s supervisor, and who complained of racial discrimination by the supervisor. The district court refused to allow the presentation of the "me too” evidence. Von Maur sought to introduce evidence that the supervisor had relatives who are African Americans and had friends who are African American. The court permitted this evidence, and in response the Plaintiff renewed her request to present "me too” evidence on rebuttal. The court denied the Plaintiff’s request.

The Iowa Court of Appeals reversed and remanded for a new trial, holding that the Plaintiff should have been entitled to present some limited "me too” evidence on rebuttal once the supervisor presented evidence that she had relations and relationships with persons of color. The Court found that once the supervisor was permitted to introduce evidence to "negate any inference that she harbored discriminatory or retaliatory intent,” the court should have permitted the Plaintiff to "respond with evidence contradicting [the supervisor’s] testimony.” The Court found the decision to exclude the limited "me too” evidence was reversible error because the supervisor’s bias or lack thereof was central to the issues at trial.

III. Miscellaneous

A. Figley v. W.S. Industrial, 801 N.W.2d 602 (Iowa App. 2011).

Question for the Court was whether a company’s counterclaim against its former employee qualifies as an adverse employment action for purposes of stating a claim for retaliation under the FLSA or Iowa’s Wage Payment Collection Act. Plaintiff filed a claim under the FLSA and Iowa’s Wage Payment Collection Act, and the Defendant filed a counterclaim against the Plaintiff seeking damages from the Plaintiff sustained by the Defendant as the result of a vehicle accident in which Plaintiff was involved. The Court held that in order for the Plaintiff to establish that the counterclaim was retaliatory, the Plaintiff had to prove that the Defendant’s counterclaim was "baseless;” unsupported by law or fact.

B. Sims v. NCI Holding Corp., 759 N.W.2d 333 (Iowa 2012).

Plaintiff brought suit based on Iowa’s drug-free workplace statute, alleging non-compliance with drug-testing statutes following a failed drug test at work. The matter was one of first impression for the Court with regard to whether strict compliance with the notice provisions of the statute is required, or whether substantial compliance will suffice.

The Court held that if an employer’s actions fall short of strict compliance with regard to employee notice, but nonetheless accomplish the important objective of providing notice to the employee of the positive test result and a meaningful opportunity to consider whether to undertake a confirmatory test, the employer’s conduct will substantially comply with the statute.

In this case, the Defendant’s oral notice to the Plaintiff of his right to take a confirmatory test was incomplete and failed to adequately covey the message that the notice was important; and that the Defendant’s written notice six months after the failed test was equally insufficient to protect the Plaintiff from the consequences of a potentially erroneous test result. Thus, the Defendant did not substantially comply. The Court affirmed the district court’s denial of back pay, punitive damages, and reinstatement for the Plaintiff; and affirmed the district court’s grant of attorneys’ fees and costs in favor of the Plaintiff.



Wrongful Discharge Claims in Iowa: Defining Iowa Public Policy After Springer and Fitzgerald

Thomas W. Foley

BABICH GOLDMAN, P.C.

501 S.W. 7th Street, Suite J

Des Moines, IA 50309

(515) 244-4300

Facsimile (515) 244-2650

Email: tfoley@babichgoldman.com


A. Introduction

Some of the attorneys in my law firm (myself included) represent individuals in employment-related litigation. As a consequence, my firm’s website routinely receives messages from individuals who have lost their jobs for one reason or another claiming that they have been "wrongfully discharged” and asking (sometimes pleading) for help. They, like many lawyers even, fail to grasp the specific meaning wrongful discharge claims have under Iowa law. They mistakenly perceive the phrase "wrongful discharge” as including any employment termination that is unfair, unjust, or, at least in their eyes, simply wrong. Unfortunately for many discharged Iowans, the applicable law is more complex and less equitable than what is generally assumed.

B. The Springer Decision

The phrase "wrongful discharge” applies to the public policy exception to the employment at will doctrine that the Iowa Supreme Court first recognized over thirty years ago in Springer v. Weeks and Leo Co., Inc., 429 N.W.2d 558 (Iowa 1988). In that case, the court concluded that an employee who was terminated because she filed for, or otherwise pursued, workers compensation benefits could bring a viable claim challenging her discharge even if the employee was employed at-will. The court stated, in relevant part, "that, even under employment-at-will relationships, a remedy for damages may exist when the employment is terminated for reasons contrary to public policy.” Pointing to Iowa’s workers compensation statute, the court found that the clearly expressed policy of this state to compensate employees for work-related injuries, and that permitting employers to discharge employees for pursuing workers compensation benefits "would fly in the face of [that] policy.” Id. at 560-61. Prior to Springer, employees who lacked employment contracts of a specific duration (i.e. most of us) were presumed to be employed at-will, and their employment could be terminated for essentially any reason without legal recourse.

When Springer became the law, attorneys and courts throughout the state attempted to discern what the Iowa Supreme court meant when it stated in Springer that "a remedy for damages” might exist even when an "at-will” employee was discharged "for reasons contrary to public policy.” Attorneys who typically represented discharged workers hoped the court would, in its future decisions, interpret the term broadly to include any discharge that was contrary to the public policy in the sense that the discharge was made without warning, was made for spurious or untrue reasons, or was otherwise arbitrary or capricious in nature. In contrast, attorneys who defended employers hoped the court would narrowly interpret the phrase to include only discharges that violated a limited number of clearly defined public policies. Down through the years, the interpretation advanced by those representing employers has slowly, but surely, won the day.

C. After Springer

Springer’s aftermath presented somewhat of a mixed bag. For attorneys representing employers, the Iowa Supreme Court continued to require wrongful discharge claims to be anchored to a clearly established policy of the state, and the court denied claims where the connection to a specific statute was tenuous or where the articulated public policy was amorphous. For example, the court refused to construe the state’s civil service statute (Iowa Code Chapter 400) as expressing a public policy requiring all employers to utilize principles of progressive discipline before terminating employees or as requiring all discharges be supported by just cause. Bennett v. City of Redford, 446 N.W.2d (Iowa 1989). In another decision, the court refused to interpret the presumption of innocence applicable to criminal proceedings as prohibiting employers from discharging employees based on what a former employee claimed were false allegations of theft. French v. Foods, Inc., 495 N.W.2d 768 (Iowa 1993), and declining to recognize the Due Process Clause and the presumption of innocence as prohibiting employers from discharging employees simply because criminal charges were filed against them. Borschall v. City of Perry, 512 N.W.2d 565 (Iowa 1994). In a somewhat surprising decision, the court concluded that harassing a worker for pursuing workers compensation benefits, including threatening discharge, did not violate Iowa public policy. Below v. Skarr, 569 N.W.2d 510 (Iowa 1997).

In contrast, the court held that discharging an employee for filing a workers compensation claim, even if there was no evidence the employer actually interfered with the employee’s receipt of workers compensation benefits, violated the public policy underlying Iowa’s workers compensation act, Smith v. Smithway Motor Xpress, Inc., 464 N.W.2d 682 (Iowa 1990); that discharging an employee for seeking partial unemployment compensation violated the "well-recognized and defined” policies underlying Iowa’s unemployment compensation laws, Iowa Code Chapter 96, Lara v. Thomas, 512 N.W.2d 777 (Iowa 1994); that discharging an employee for reporting suspected child abuse violated the public policy supporting this state’s child abuse laws, Teachout v. Forest Community School District, 584 N.W.2d 296 (Iowa 1998); and that discharging an employee for demanding wages due to him violated the public policy underlying Iowa’s wage payment collection law, Iowa Code Chapter 91A, Tullis v. Merrill, 584 N.W.2d 236 (Iowa 1998).

In like manner, the Iowa Court of Appeals held an employer violated a clear public policy of the state by discharging an employee for refusing to take a polygraph in violation of the prohibitions contained in Iowa Code § 730.4, Wilcox v. Hy-Vee Food Store, Inc., 458 N.W.2d 870 (Iowa App. 1990), and for discharging an employee for engaging in activities prohibited by a federal regulation, noting that "federal law or policy can serve as a clear mandate of Iowa public policy,” Smuck v. National Management Corp., 540 N.W.2d 669, 673 (Iowa App. 1995).

D. The Fitzgerald Decision.

In 2000, the Iowa Supreme Court decided what may be the most significant wrongful discharge decision to date. In Fitzgerald v. Salsbury Chemical, Inc., 613 N.W.2d 275 (Iowa 2000), the court held that an employee who claimed his employer discharged him because he intended to provide truthful testimony, adverse to his employer, in a future lawsuit brought by another employee, stated a viable wrongful discharge claim under Iowa law. The decision clarified what proof was necessary to establish the first element of a wrongful discharge claim—"engagement in protected activity.”

In Fitzgerald, the court held that discharging an employee because the employee intended to provide truthful testimony in a legal proceeding, if it indeed happened, constituted protected activity because it violated the public policy underlying specific statutes that made it a crime to "commit perjury, suborn perjury, or tamper with a witness.” The court’s conclusion that Fitzgerald’s discharge potentially jeopardized this public policy, and precluded summary judgment in the employer’s favor, was based primarily upon Fitzgerald’s assertion that before he was let go his supervisor not only admonished him "for failing to support his employer, but warned him that the matter could result in litigation and he must decide which side he would support.” In an attempt to narrow its decision’s potential reach, the court also observed that "[g]enerally, mere internal opposition by an employee to the employer’s decision to discharge a co-employee would not suggest an interference the employee intended to give truthful testimony in future litigation brought by the discharged co-employee.”

In addition to recognizing a new wrongful discharge claim, the Fitzgerald court further clarified what proof was necessary to state a claim for wrongful discharge under Iowa law. To state a viable claim, a discharged employee must, as an initial matter, identify a "clear public policy that would be adversely impacted if dismissal resulted from the conduct engaged in by the employee.” In other words, to establish this aspect of the claim, "the employee must show the conduct not only furthered the public policy, but [that] dismissal would have a chilling effect on the public policy by discouraging the conduct.” Or, in the alternative, "[t]he conduct must be tied to the public policy, so that the dismissal will undermine the policy.” In either case, whether a public policy existed, or if "that policy is undermined by a discharge from employment,” presented questions of law for the court to resolve.” The remaining elements of a wrongful discharge claim—motive and causation—were, in contrast, "factual in nature and generally more suitable for resolution by the finder of fact.”

While recognizing that discharging an employee because the employee intended to provide truthful testimony in a legal proceeding violated a clearly articulated public policy of the state, the Iowa Supreme Court rejected Fitzgerald’s alternative theory, that the public policy of this state protected employees who opposed the wrongful termination of a fellow employee and prohibited their discharge for that reason. Fitzgerald argued that this particular public policy was tied to the Iowa Civil Rights Act (Iowa Code Chapter 216) and Title VII of the Civil Rights Act of 1964 (42 U.S.C. Sec. 2000e et. seq.) whose anti-discrimination and other provisions, Fitzgerald maintained, promoted "a broad public policy for employees to oppose all unlawful employment practices including the termination of co-employees [that] is contrary to public policy.”

In rejecting Fitzgerald’s alternative theory of recovery, the court stated that it was "reluctant to infer a broad public policy for a statute [that] is limited in its scope to specific discriminatory practices,” and it noted that even if it agreed with Fitzgerald’s reading of the policies underlying the Iowa Civil Rights Act and Title VII, Fitzgerald failed to show how his conduct promoted the claimed public policy, or was necessary to enforce any public policy, in any event. To prevent anyone from reading too much into its decision, the court added that determining whether a public policy exists involves "a careful balance of competing interests,” and cautioned that the court would not "interfere with an employer’s interest in running its business as it sees fit unless a clear, recognized public policy exists.”

E. After Fitzgerald

Using Fitzgerald as a guide, the Iowa Supreme Court has, in its later decisions, delineated what a discharged employee must establish to prove a wrongful discharge claim. Those factors are: (1) the existence of a clearly defined public policy that protects employee activity; (2) discharging an employee would frustrate that public policy; (3) the employee engaged in protected activity and his or her conduct was the reason for the discharge; and (4) there was no overriding business justification for the termination. Jasper v. Nizam, Inc., 764 N.W.2d 751, 761 (Iowa 2009). The first two factors are legal issues for the court to determine; the last two are fact issues for the jury to resolve.

Regarding the first two factors, the Iowa Supreme Court had identified four categories of activities that Iowa public policy typically protects: (1) exercising a statutory right or privilege; (2) refusing to commit an unlawful act; (3) performing a statutory obligation, and (4) reporting a statutory violation. Jasper, 764 N.W.2d at 762. More generally, the court has observed that the "concept of public policy generally captures the communal conscience and common sense of our state in matters of public health, safety, morals, and general welfare. Id. at 764. The court has also repeated the theme it first articulated in Fitzgerald, noting that to support a wrongful discharge claim, the public policy must be "weighty enough to overcome the employer’s interest in operating its business in the manner it sees fit…” Lloyd v. Drake University, 686 N.W.2d 225 (Iowa 2004).

In Jasper, the Iowa Supreme Court recognized that terminating an employee because the employee refused to cut staffing levels at a daycare center below the levels permitted by law violates our state’s public policy. The court found that "[b]oth Chapter 237B and the Iowa Administrative Code provide strong evidence that the need for adequate staffing at day centers is a well-recognized public policy of Iowa,” and that allowing day care centers to fire employees for refusing the cut staff below the levels mandated by state law would frustrate that policy. Iowa Supreme Court has likewise recognized wrongful discharge claims for reporting IOSHA violations, George v. D.W. Zinser Co., 762 N.W.2d 865 (Iowa 2009); and for internally reporting co-workers for forging state-mandated training documents pertaining to the care of dementia patients, Dorshkind v. Oak Park Place of Duguque II, 835 N.W.2d 293 (Iowa 2013).

The cases that have been decided since Fitzgerald have demonstrated an increasing reluctance by the Iowa Supreme Court and the Iowa Court of Appeals to extend the public policy exception to at-will employment beyond those instances where a discharge frustrates and clear and defined state policy. Since Fitzgerald, Iowa’s appellate courts have, for example, rejected wrongful discharge claims where an employee: participated in a mediation process, Davis v. Horton, 661 N.W.2d 533 (Iowa 2003); opposed the discharge of another employee, Shoop v. Drake University, 672 N.W.2d 335 (Iowa App. 2003); upheld criminal laws, Lloyd v. Drake University, 686 N.W.2d 225 (Iowa 2004); attempted to protect customer privacy and to shield customers from potential identity theft, Schmidt v. Iowa Machine Shed Co., 2006 WL 2872944 (Iowa App); reported a customer who took an illicit photo of a child, Arispe v. Walgreens Co., 759 N.W.2d 812 (Iowa App. 2008); complained that the employer was not properly handling a fellow employee’s workers compensation claim, Ballalatak v. All Iowa agriculture Ass’n, 781 N.W.2d. 272 (Iowa 2010); and pursued a personal injury lawsuit against a corporation in common ownership with the employer, Berry v. Liberty Holdings, Inc., 803 N.W.2d 106 (Iowa 2011).

Likewise, Iowa’s appellate courts have concluded that freedom from assaultive behavior in the workplace is not a well-recognized public policy, Haynes v. Karl Chevrolet, Inc., 2008 WL 4725427 (Iowa App. 2008); nor is reporting bribery, theft and other irregularities to the Iowa Racing and Gaming Commission, Stevens v. Racing Association of Central Iowa, 778 N.W.2d 66 (Iowa App. 2009). The Iowa Supreme Court also refused to apply the exception to independent contractors, stating "we feel no compelling need, as we did with at-will employees, to support a wrongful termination tort for independent contractors.” Harvey v. Care Initiatives, Inc., 634 N.W.2d 681 (Iowa 2001).

F. Additional Thoughts and Observations.

Wrongful discharge claims still exist in Iowa; however, the promise the Springer decision presented over thirty years ago has not been achieved. The exception has not eaten the "at will” rule as many feared it might.

Through its various decisions, the Iowa courts have limited the tort to discharges that violate policies that are clearly articulated in specific statutes and administrative rules. The Iowa courts have repeatedly refused to recognize the tort in situations where the discharge at issue clearly violated all notions of fairness and socially acceptable behavior for fear that to do otherwise would encroach upon an employer’s right to run its business as it sees fit by requiring the employer to treat its employees fairly and in good faith.

The way wrongful discharge law has developed is, of course, good news for those attorneys who represent Iowa employers, as the tort’s reach is clearly limited. It is less than good news for those attorneys who seek redress for discharged employees. However, representing individuals against corporate interests have never been for the faint of heart.



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