IN THE COURT OF APPEALS OF IOWA
No. 23-0628 Filed July 24, 2024
DARRELL JEFFREY MCCLURE, Plaintiff-Appellant,
vs.
CORTEVA AGRISCIENCE LLC, Defendant-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Keokuk County, Crystal S. Cronk,
Judge.
An employee appeals the district court’s grant of summary judgment in a
discrimination case. AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.
Michael J. Carroll of Carney & Appleby, P.L.C., Des Moines and Megan
Flynn of Flynn Law Firm, P.L.C., West Des Moines, for appellant.
Susan P. Elgin of Faegre Drinker Biddle & Reath, LLP, Des Moines, Terran
C. Chambers (pro hac vice) of Faegre Drinker Biddle & Reath, LLP, Minneapolis,
Minnesota, and Daniel J. Gomez (pro hac vice) of Corteva Agriscience LLC,
Wilmington, Delaware, for appellee.
Heard by Ahlers, P.J., and Chicchelly and Buller, JJ. 2
BULLER, Judge.
Corteva Agriscience LLC (Corteva)1 fired long-time employee Darrell
Jeffrey “Jeff” McClure following his involvement in a two-forklift collision. McClure
sued Corteva based on that discharge, alleging age-discrimination, disability-
discrimination, retaliation, and hostile-work-environment claims under the Iowa
Civil Rights Act (ICRA). See Iowa Code §§ 216.6; .11 (2020). Corteva moved for
summary judgment on all claims, and the district court ruled in the company’s
favor. Viewing the facts in the light most favorable to McClure, we find genuine
issues of material fact exist on his discrimination claims, reverse that part of the
district court’s judgment, and remand for further proceedings. We affirm on all
other issues.
I. Background Facts and Proceedings
Fifty-eight-year-old McClure worked at Corteva for more than three
decades—starting in 1983 and ending in 2020. Corteva is an agriculture company,
and McClure held various roles over the years, ending his career as a production
technician at a shipping and processing facility. In that role, McClure used a forklift
and “other material handling devices” to transport Corteva’s products around the
facility, including to and from trucks and trailers. McClure also worked as an
emergency medical technician (EMT) for a county hospital and as a firefighter and
later fire chief for a nearby town. And he spent occasional weekends helping with
races at the Iowa Speedway.
1 Corteva has gone through a variety of name changes during McClure’s employment. We refer to it as Corteva for the sake of consistency. 3
While employed by Corteva, McClure received generally positive reviews
and ratings. According to his direct supervisor, Chad Langstraat, “a lot of people
looked up to [McClure] that were out on the floor” and he “wasn’t a bad employee,
by no means.” Langstraat wrote in McClure’s 2016 end-of-year employee
evaluation that he did “a good job in the warehouse,” communicated planning
concerns and safety suggestions to leadership, and excelled at leading other
employees through fire-extinguisher and cardiopulmonary resuscitation (better
known as CPR) training. But that evaluation also documented concerns that
McClure was failing to follow some safety protocols so he could save time.
Langstraat also informed McClure: “You need to have the understanding that
[Corteva] as a whole is changing, and we have to change with it.”
McClure’s disciplinary history began in 1993 when he accidentally
discharged his personal firearm at work. He also had occasional verbal warnings
or coaching sessions regarding his performance over the years. He received a
written warning in 2010 for violating a safety policy by being on stacked pallets
without fall protection equipment and another in 2011 for sleeping on the job.
McClure signed these later warnings but contested their accuracy.
At McClure’s location, Corteva had a seasonal schedule for employees that
included working either an eight-hour or twelve-hour shift. Potential eight-hour
shifts included 6:00 a.m. to 2:30 p.m. (first shift), 2:00 p.m. to 10:30 p.m. (second
shift), or 10:00 p.m. to 6:30 a.m. (third shift). And potential twelve-hour shifts
included 6:15 a.m. to 6:00 p.m. (dayshift) or 6:00 p.m. to 6:15 a.m. (nightshift).
Employees would switch shifts seasonally. For most of McClure’s time at Corteva,
he worked the nightshift or third shift. But following a heart attack in 2014, McClure 4
provided Corteva with a doctor’s note specifying he “should not be on nightshift”
due to his condition, and Corteva accommodated the limitation.
In 2017, Langstraat informed McClure that his new team schedule would
probably have him working overnights. McClure reminded Langstraat of his
medical restriction, and Langstraat turned the issue over to facility manager Dan
Dehrkoop. At first, Dehrkoop told supervisors that Corteva had no record of
McClure’s doctor’s note. But, after finding the note “stuck to a few other papers in
the file,” Dehrkoop told McClure he needed to submit a new doctor’s note and
Corteva would need to grant him a new accommodation.
Around this time, Langstraat and another supervisor, Steven Brooks, issued
McClure a written warning based on a list of accumulated issues, such as McClure
using an improper loading procedure for boxes in 2016 and 2017 and using his
phone on the production floor in 2017. McClure signed the warning, despite
contesting it in part on the basis that he and other employees had not been
informed of changes to the loading procedure and a manager had instructed him
to use his phone to document safety concerns.
McClure submitted a new doctor’s note a few days after the written warning,
specifying he was unable to “work prolonged nightshift schedule[s]” permanently.
Dehrkoop requested further clarification on McClure’s restriction, asking for the
exact times McClure could not work. McClure obtained a second doctor’s note,
now specifying he could not work from 7:00 p.m. to 6:00 a.m. But Dehrkoop
requested more clarification, so McClure got a third doctor’s note detailing that he
could “work an occasional nightshift” but no more than two and never back-to-back 5
because it could “severely disrupt his sleep cycle, which would adversely [a]ffect
his overall medical condition.”
Amid this doctor’s-note debate, McClure filed a written grievance with
Corteva. McClure wrote he felt discriminated against because of his age, years of
service, and heart condition, and he relayed his issues with the shift restriction and
recent written warning. He also chronicled other incidents that he alleged were
mistreatment from supervisors against other employees. McClure updated the
complaint a few days later, noting a recent exchange with Dehrkoop about the
nightshift where Dehrkoop questioned “why should [Corteva] adhere to this work
restriction when you’re a volunteer fire fighter with overnight fires.”
Corteva corporate human resource (HR) managers investigated McClure’s
complaint, along with another complaint from a different employee alleging similar
concerns. After conducting interviews, the corporate HR managers determined
McClure’s discrimination complaints were unsubstantiated in January 2018. At
some point, both Langstraat and Dehrkoop were shown McClure’s complaint by
another employee.
Corteva granted McClure his requested shift accommodation that same
month, after McClure provided a fourth doctor’s note. In the interim period between
the request and approval of the accommodation, the company did not require
McClure to work consecutive nightshifts.
Langstraat rated McClure as “below required performance” in his 2017 year-
end evaluation. And Langstraat informed McClure he received this rating because
of his written warning, despite McClure receiving “on track” scores otherwise. At
the end of 2018, McClure returned to a “successful performance” rating, with 6
Langstraat noting McClure “made a change with his attitudes and behaviors this
year and it has been noticed.” During this time, McClure also received some
instruction from supervisors on keeping his distance from running forklifts.
McClure had another heart attack in April 2019 and took short-term disability
leave for fifty-four days. Dehrkoop questioned the length of McClure’s leave, telling
the facility’s local HR manager that “it has to be close to long term disability.”
Dehrkoop also asked his local HR manager if there was anything that could be
done to end McClure’s leave because he heard McClure speak at a recent city
council meeting and other employees informed him McClure had been seen
working as fire chief and volunteering at the speedway. The local HR manager
contacted corporate HR, leading to an “alert” on McClure’s chart to inform
corporate HR if McClure requested to extend his disability leave—which he did not.
Corporate HR later confirmed that McClure was not “acting in violation of whatever
restrictions his doctor had him on.”
After McClure returned to work with a physician’s release specifying no
restrictions, Dehrkoop again sought to place him on the nightshift. Dehrkoop’s
local HR manager contacted corporate HR to see if McClure’s previous restrictions
were still in place. During that conversation, the local HR manager noted she and
corporate had previous conversations about facility “employees who have
nightshift restrictions” and “getting those to the forefront again.” Corporate HR
contacted McClure’s doctor, then informed Dehrkoop and his HR manager that
McClure’s shift restriction was still in place.
Langstraat gave McClure another “successful performance” rating in his
2019 year-end review, noting McClure “continue[d] to do a good job with his safety 7
program and is willing to share his knowledge with others at work.” But Langstraat
also “challenge[d]” McClure to ensure he was “following all policies and procedures
while driving a forklift” because Langstraat felt McClure “along with just about every
other operator who drives a forklift” did not abide by some policies. Langstraat
cautioned McClure about his “behaviors and actions while driving a forklift,” noting
new forklifts included sensors that tracked employee driving, and the sensors
suggested McClure had a “high impact sensor rate” one month that year.
McClure claims these new sensors were unreliable because they
inconsistently detected collisions. Other employees supported these claims,
discussing how different forklifts responded differently to the same driving
conditions. These employees relayed instances where a forklift’s impact sensors
went off despite no collision, registered a low-impact collision as a high-impact
collision, or gave inaccurate information on driving speed. They also noted that
supervisors, including Dehrkoop, were aware of the sensors’ unreliability.
In April 2020, McClure self-reported an issue with one of the facility’s
loading docks to Corteva’s safety supervisor. McClure entered a semi-trailer to
load heavy equipment and the trailer pulled away from the loading dock with him
and the loading equipment still inside. Corteva’s policy was that semi drivers
should not be given their keys until all equipment was loaded and that semitrucks
should be locked into the docks. McClure informed the safety supervisor that
another, younger employee had given the semi-driver the keys early and the dock
had malfunctioned to falsely signal it was locked. McClure knew the docks had a
history of malfunctioning, and another employee confirmed “sometimes [the signal
lights] don’t even work” and this issue was known to supervisors. 8
The safety supervisor and Brooks issued McClure a “final written warning”
for the loading dock incident. They informed McClure his account did “not match
the evidence” because maintenance could not replicate the malfunction and
“multiple witnesses” saw the dock had correctly signaled it was unlocked. McClure
disagreed with the findings and refused to sign the warning. The safety supervisor
and Books did not issue a written warning to the younger employee who gave the
semi-driver the keys but did “discuss and document” the issue with the employee.
A couple of weeks later, Brooks called McClure into his office to discuss
issues with McClure calling in late in 2019 and 2020 and using “unplanned” paid
time off. McClure began suffering from migraines after his 2019 heart attack and
claims he informed Brooks those migraines contributed to his lateness. According
to McClure, Brooks responded “Well I really doubt that. I think you’re just trying to
sleep in.” Dehrkoop also met with McClure about his attendance and told him, “I
want to ensure you understand, with any future performance or attendance
violations, your job is in jeopardy.”
That June, McClure was operating a forklift when he and another forklift
operator collided. Both forklifts were driving in reverse before the collision.
According to McClure, he stopped his forklift but the other operator kept going at
a fast speed and hit him, while Corteva contends McClure backed directly into the
other forklift. Both forklifts had sensors and the data from those sensors revealed
the other operator was driving faster than McClure.
Following the collision, Dehrkoop emailed his local HR manager about
McClure: “I think we are unfortunately ready for termination here.” Dehrkoop
acknowledged McClure had improved on his attendance but noted his continuing 9
forklift safety issues and ultimately fired him in July. The other forklift operator
involved in the collision was a temporary employee, younger than McClure, and
was not disabled “to the best of [McClure’s] knowledge.” The temporary employee
was not disciplined by Corteva.
McClure sued Corteva in August 2021, alleging age discrimination,
disability discrimination, retaliation, and workplace harassment. Before trial,
McClure collected the depositions, declarations, and letters of past and present
Corteva employees detailing their experiences with alleged discrimination. One
former employee was sixty-one years old and had diabetes; he resigned in 2021
following a similar doctor’s-note issue with Dehrkoop and reported he received
unwarranted discipline and surveillance from Dehrkoop and other supervisors.
Current employees included a thirty-year-old employee with narcolepsy who
recounted that management called her “unreliable” because of her disability and
that she had to resubmit her disability paperwork at the request of Dehrkoop, as
well as sixty-three-year-old and sixty-six-year-old employees who relayed
generally similar instances of unwarranted discipline, surveillance, and
documentation.
As trial approached, Corteva moved for summary judgment on all claims.
Finding no genuine issues of material fact, the district court granted Corteva’s
motion. McClure appeals.
II. Standard of Review
“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.” Hedlund v. State, 930 N.W.2d 707, 715 (Iowa 2019). We view the entire 10
record in the “light most favorable to the nonmoving party.” Id. And in doing so,
we indulge in every legitimate inference that can be reasonably drawn. Id. But we
do not weigh evidence or make credibility determinations. Carr v. Bankers Tr. Co.,
546 N.W.2d 901, 905 (Iowa 1996). “Mere skepticism of a plaintiff’s claim is not a
sufficient reason to prevent a jury from hearing the merits of a case.” Clinkscales
v. Nelson Sec., Inc., 697 N.W.2d 836, 841 (Iowa 2005). Still, this is “the put up or
shut up moment in a lawsuit, when a [nonmoving] party must show what evidence
it has that would convince a trier of fact to accept its version of the events.”
Slaughter v. Des Moines Univ. Coll. of Osteopathic Med., 925 N.W.2d 793, 808
(Iowa 2019) (citation omitted).
III. Discussion
We construe the ICRA’s provisions broadly. Iowa Code § 216.18(1). While
not bound by federal statutes or case law in our analysis, we look to these
counterparts for assistance in enforcing the ICRA’s “general proscription against
discrimination.” Casey’s Gen. Stores, Inc. v. Blackford, 661 N.W.2d 515, 519
(Iowa 2003); see Feeback v. Swift Pork Co., 988 N.W.2d 340, 347–48 (Iowa 2023).
A. Discrimination
Under the ICRA, it’s “an unfair or discriminatory practice” for an employer
to discharge an employee “because of the[ir] age, race, creed, color, sex, sexual
orientation, gender identity, national origin, religion, or disability.” Iowa Code
§ 216.6(1)(a). At summary judgment, when discrimination claims rely on indirect
evidence, courts employ a modified three-step burden-shifting analysis originating
from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05 (1973). See
Feeback, 988 N.W.2d at 347. First, the employee establishes a prima facie case 11
of employment discrimination by showing an inference that he suffered an adverse
employment decision based on a protected characteristic—here age or disability.
See id. Second, the burden shifts to the employer to “articulate some legitimate,
nondiscriminatory reason for its employment action.” Id. (cleaned up). And last,
the burden shifts back to the employee to show the employer’s “proffered reason
[was] pretextual or, while true, was not the only reason for [the adverse action] and
that his [protected characteristic] was another motivating factor.” Id. at 348.
The district court found McClure failed to make a prima facie case under
either age or disability discrimination. Corteva defends the district court order but
also notes we could affirm the summary-judgment ruling based on step three of
the Feeback framework. See Pitts v. Farm Bureau Life Ins. Co., 818
N.W.2d 91, 97 (Iowa 2012) (noting an appellate court may affirm on grounds raised
but not decided below). While urging that both of his discrimination claims survive
steps one and three, McClure concedes Corteva met its burden to proffer a
legitimate reason for firing him under step two: he was an alleged safety risk.
1. Prima Facie Case of Age Discrimination
To establish a prima facie case of ICRA age discrimination, McClure had to
show he possessed a protected characteristic, was qualified for his position, “and
the circumstances of [his] discharge raised an inference of discrimination.”
Feeback, 988 N.W.2d at 347. Corteva concedes McClure met the first and third
factors. But the district court found McClure failed the second—that he was
qualified for his position.
The federal courts have noted state and federal precedent is not especially
clear on what makes a person “qualified.” See Gardner v. Wal-Mart Stores, Inc., 12
2 F.4th 745, 748 n.3 (8th Cir. 2021) (noting conflicting definitions); Garang v.
Smithfield Farmland Corp., 439 F. Supp. 3d 1073, 1085–87 (N.D. Iowa 2020)
(describing “two ostensibly-incompatible articulations”). One line of cases ties this
element to an employer’s expectations and whether the employee was performing
“satisfactorily.” Farmland Foods, Inc. v. Dubuque Hum. Rts. Comm’n, 672
N.W.2d 733, 742 n.1 (Iowa 2003) (race discrimination); see Avery v. Iowa Dep’t of
Hum. Servs., 995 N.W.2d 308, 312 (Iowa Ct. App. 2023) (sex and sexual
orientation); Johnson v. Mental Health Inst., No. 16-1447, 2018 WL 351601, at *6
(Iowa Ct. App. Jan. 10, 2018) (explaining this approach in a racial discrimination
claim). Another line ties it to the employee’s qualifications and whether they can
“perform the essential functions of the job” either with or without accommodation.
Goodpaster v. Schwan’s Home Serv., Inc., 849 N.W.2d 1, 14–17 (Iowa 2014)
(disability); Wing v. Iowa Lutheran Hosp., 426 N.W.2d 175, 179 (Iowa Ct.
App. 1988) (age).
We conclude McClure generated a fact question under either articulation.
Corteva contends McClure’s documented safety history and data from the forklift
sensor prove he was unqualified. But McClure notes he contested the safety
violations and that other employees reported the forklift sensors were unreliable.
See Wyngarden v. State Jud. Branch, No. 13–0863, 2014 WL 4230192, at *12
(Iowa Ct. App. Aug. 27, 2014) (“The disagreement among the parties concerning
[the employee]’s work performance is a factual dispute precluding summary
judgment.”). He also points to employee evaluations and statements by
supervisors, which were generally positive despite his written warnings and
discipline. See id. While we acknowledge Corteva’s proffered reasons concerning 13
safety violations, we think they best fit under steps two and three of the analysis—
not the first. We find the facts here, particularly considering McClure’s decades of
continued employment, established a prima facie case of age discrimination. See
Caraballo-Caraballo v. Corr. Admin., 892 F.3d 53, 60 (1st Cir. 2018) (“[T]he
employer has already expressed a belief that [the employee] is minimally qualified,
by previously hiring [them].” (citations and internal quotations omitted)), abrogated
on other grounds by Muldrow v. City of St. Louis, 601 U.S. ___, 144 S. Ct. 967
(2024). The district court erred in concluding otherwise.
2. Prima Facie Case of Disability Discrimination
For a prima facie case of ICRA disability discrimination, McClure had to
show he had a disability, was qualified, and his discharge raised an inference of
discrimination. See Goodpaster, 849 N.W.2d at 6, 10 (noting that, unlike federal
law’s scattered statutory provisions, “Iowa has one unified statute”). By statute,
disability includes “the physical or mental condition of a person which constitutes
a substantial disability.” Iowa Code § 216.2(5). A substantial disability
meaningfully restricts “one or more major life activities,” including “caring for one’s
self, performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working.” See Iowa Admin. Code r. 161-8.26(1), (3); Goodpaster,
849 N.W.2d at 13 n.4 (noting “the ability to work is something of a disability
discrimination catchall”). A disability can also be substantial if a person “has a
record of such an impairment” or is perceived by others “as having such an
impairment.” Iowa Admin. Code r. 161-8.26(1).
McClure argues he has a disability or was perceived as having a disability
based on his limitation to working daytime hours. The district court disagreed: “the 14
record shows very little to suggest that once [McClure] was moved to day shift that
his heart condition had any impact upon his ability to do his work.” Corteva solely
relies on the district court’s reasoning on appeal. But as we have noted in an
unpublished decision, that an employee “could perform the essential functions of
his job . . . with some accommodation speaks to whether he was qualified for his
position, not whether he was substantially impaired.” Vetter v. State, No. 16-0208,
2017 WL 2181191, at *6 (Iowa Ct. App. May 17, 2017).
It’s undisputed that McClure had two heart attacks over the course of his
employment with Corteva. And McClure presented multiple doctor’s notes
showing how his first heart attack affected his health and required a permanently
consistent “sleep cycle” to avoid further adverse health impacts. See Katz v. City
Metal Co., 87 F.3d 26, 31 (1st Cir. 1996) (concluding a heart attack could be a
physical impairment). His second heart attack reinforced the ongoing nature of his
impairment and meaningfully limited his ability to work swing shifts like other
product technicians: he could not consistently work two of Corteva’s three potential
eight-hour shifts or the twelve-hour night shift. Cf. Gile v. United Airlines, Inc., 213
F.3d 365, 373 (7th Cir. 2000) (discussing shift accommodation for employee with
anxiety and insomnia). Nor could McClure have his schedule changed like others
because of his accommodation—a fact which mattered to management. See
Vetter, 2017 WL 2181191, at *4–6 (discussing the permanency and duration of the
employee’s impairment and that it limited his ability to work as compared to others
in “manner and duration”).
Corteva invites us to weigh evidence and question the credibility of
McClure’s restriction based on his EMT work and fire chief duties along with his 15
volunteer work at the speedway. But determining credibility and weighing
evidence is for juries, not judges deciding motions for summary judgment. See
Carr, 546 N.W.2d at 905. In line with the ICRA’s broad construction, we find
McClure generated a disputed issue of material fact as to whether he was disabled
sufficient to defeat summary judgment on the first element of his prima facie case.
See Iowa Code § 216.18(1); see also Smidt v. Porter, 695 N.W.2d 9, 14–15 (Iowa
2005) (detailing how the prima facie case “is a minimal requirement” (citation
omitted)).
3. Pretext and/or Motivating Factor
Finding McClure proved or at least generated a fact question on his prima
facie cases of age and disability discrimination, and because step two is
undisputed, we move to step three. McClure must “demonstrate the employer’s
proffered reason [was] pretextual or, while true, was not the only reason for his
[discharge] and that his age [or disability] was another motivating factor.” Feeback,
988 N.W.2d at 348. At oral argument, McClure clarified that he was pursuing both
a pretext theory and a motivating-factor theory. And Corteva agreed both theories
were at play. Despite the avenue taken (pretext, motivating factor, or both), the
bottom-line question under the Feeback framework is the same: whether there is
a genuine issue of material fact that the employee’s protected characteristic played
a part in the adverse employment action. See DeBoom v. Raining Rose, Inc., 772
N.W.2d 1, 13 (Iowa 2009) (noting a motivating factor is one that “played a part” in
the adverse employment action); Boge v. Deere & Co., No. 22-CV-2074-CJW-
KEM, 2024 WL 690234, at *17 (N.D. Iowa Feb. 20, 2024) (examining Feeback’s
modified test). 16
Discrimination claims that advance to step three of the Feeback framework
are tough to square with summary judgment because the focus is on discerning
discriminatory animus from the evidence. See Hoefer v. Wis. Educ. Ass’n Ins. Tr.,
470 N.W.2d 336, 338 (Iowa 1991) (en banc) (noting civil claims dealing with motive
and intent “are generally poor candidates for summary judgment because of the[ir]
subjective nature”). The often-elusive nature of this animus means employees
usually piece together circumstantial evidence to create a “mosaic of intentional
discrimination” at this stage. Banks v. Gen. Motors, LLC, 81 F.4th 242, 259 (2d
Cir. 2023) (citation omitted). Still, employees “must set forth specific facts showing
that there is a genuine issue for trial.” Iowa R. Civ. P. 1.981(5). In reviewing the
evidence put forward by McClure, we analyze his age and disability claims largely
in tandem.
McClure offered a variety of evidence to prove that his age, disability, or
both played a part in Corteva’s decision to fire him. He first points to the
declarations and depositions of former and current Corteva employees who claim
to have also experienced age or disability discrimination at the hands of
supervisors using allegedly similar unwarranted discipline, documentation, and
scrutiny. McClure then directs us to the two younger, nondisabled employees who
were part of the 2020 docking incident and forklift collision and notes they were not
fired. Finally, McClure highlights remarks by Dehrkoop and others over the years
questioning his restrictions and disability.
The district court did not have the benefit of the Feeback framework when
ruling on whether this evidence was sufficient to survive summary judgment.
Instead, the court analyzed whether McClure’s age (but not his disability) played a 17
part in his 2020 discharge under McClure’s prima facie case. In doing so, the court
ruled that McClure’s age was not a motivating factor because it found the
depositions, declarations, and letters from current and former Corteva employees
were “not the sort of competent evidence to defeat a motion for summary
judgment.” The court further found the younger Corteva employees involved in
both of McClure’s 2020 incidents were “poor examples” because they had different
disciplinary histories from McClure and the temporary employee was “only under
[Corteva]’s control in a limited capacity.” We disagree.
First, the discriminatory experiences of other employees can help determine
an employer’s animus depending on “how closely related the evidence is to the
[employee]’s circumstances and theory of the case” among other factors.
Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 388 (2008). Here, McClure
provided evidence showing Dehrkoop and other supervisors scrutinized the
accommodations of other disabled employees in similar or identical ways,
including through requests to resubmit their paperwork, challenging doctor’s notes,
and verbally doubting the impact their disabilities had on their punctuality and
attendance. See Valdez v. W. Des Moines Cmty. Schs., 992 N.W.2d 613, 640
(Iowa 2023) (noting the relevance of analogous evidence, even though its
admission at trial is subject to the court’s discretion). Similarly, McClure put
forward evidence that multiple former and current employees around his age
experienced comparable allegedly unwarranted written warnings and monitoring
by management based on minor safety violations or unreliable forklift sensor data.
See id. In sum, we find the evidence of Corteva’s “discriminatory atmosphere”
competent to survive summary judgment. See Hamer v. Iowa C.R. Comm’n, 472 18
N.W.2d 259, 262–63 (Iowa 1991) (discussing prior-acts evidence in a similar
context); Cap. One Bank (USA), N.A. v. Taylor, No. 13-2043, 2015 WL 7567398,
at *6 (Iowa Ct. App. Nov. 25, 2015) (finding an affidavit competent—though not the
strongest—evidence).
Second, while we employ a “rigorous” test to determine whether two
employees are so similarly situated that the disparate treatment they faced is a
useful comparison, we do not require doppelgängers. Feeback, 988 N.W.2d
at 350. McClure must show that “he ‘was treated differently than other employees
whose violations were of comparable seriousness.’” Id. (emphasis and citation
omitted). And he put forward evidence on this question, pointing to the two
younger, nondisabled employees who were doing the same job as him and
committed some of the same infractions but were not disciplined or fired. While
one of those employees was a temporary worker, a Corteva supervisor
acknowledged the company could have disciplined or functionally discharged the
employee and did not do so. Despite these younger employees committing some
of the same violations as McClure, Corteva contends they are not useful
comparators because of McClure’s disciplinary history. But this argument takes a
wrong turn; the extent and accuracy of McClure’s safety record and discipline is
itself a factual dispute here, which we are not empowered to resolve at summary
judgment. See George v. Leavitt, 407 F.3d 405, 415 (D.C. Cir. 2005) (finding
employees similarly situated for summary judgment despite plaintiff’s contested
workplace violations). Thus, we find the disciplinary history between McClure and
the two younger, nondisabled employees was not so disparate as to bar them as
useful comparators. See Wyngarden, 2014 WL 4230192, at *9–10; Coleman v. 19
Donahoe, 667 F.3d 835, 846 (7th Cir. 2012) (“So long as the distinctions between
the plaintiff and the proposed comparators are not ‘so significant that they render
the comparison effectively useless,’ the similarly-situated requirement is satisfied.”
(citation omitted)).
Third, independent of the comparator evidence, McClure also put forward
evidence of management’s repeated inquiry into his shift restriction and doctor’s
notes. See Palmer Coll. of Chiropractic v. Davenport C.R. Comm’n, 850
N.W.2d326, 333 (Iowa 2014) (noting the prohibition on disability discrimination
includes “discrimination based on thoughtlessness, apathy, or stereotype”). Much
of this scrutiny came from Dehrkoop who, over the years, repeatedly questioned
and commented on the perceived veracity of McClure’s shift restriction,
complained about how long McClure took off after his second heart attack, and
sought opportunities to end his accommodation. See Leonard v. Twin Towers, 6
F. App’x 223, 230 (6th Cir. 2001) (“[W]e must carefully examine the nature of the
inquiries and the context in which that inquiry was made.”); Ryder v. Westinghouse
Elec. Corp., 128 F.3d 128, 132–33 (3d Cir. 1997) (acknowledging comments by
an executive can be circumstantial evidence of discrimination). McClure’s
evidence at this stage tended to corroborate that Dehrkoop targeted McClure’s
accommodation, with emails documenting questions about McClure’s continuing
restrictions, commenting on his outside activities while on short-term disability, and
discussing shift accommodations more generally. Cf. Abrams v. Dep’t of Pub.
Safety, 764 F.3d 244, 254 (2d Cir. 2014) (finding vague comments on whether
candidate “fit in” could create an inference of discrimination depending on the
circumstances). While these remarks and inquiries may not be “sufficient on their 20
own,” Hedlund, 930 N.W.2d at 721, they provide circumstantial evidence that
points toward intentional discrimination when combined with other evidence. See
Danzer v. Norden Sys., Inc., 151 F.3d 50, 56 (2d Cir. 1998) (concluding “remarks
can no longer be deemed ‘stray’” when “other indicia of discrimination are properly
presented”).
Corteva last points to Iowa’s recently adopted “honest belief rule.” Under
this rule, McClure must provide evidence that Corteva did not in good faith
reasonably believe McClure’s continued employment was a safety risk. See
Feeback, 988 N.W.2d at 349–50. Naturally, the fact that an employer’s belief is
objectively false or unreasonable can provide evidence of its dishonesty depending
on the circumstances. DeJesus v. WP Co. LLC, 841 F.3d 527, 534 (D.C.
Cir. 2016) (observing that “honesty and reasonableness are linked”). But Corteva
could still prevail, despite the factual disputes swirling around McClure’s safety
history, if it could demonstrate the absence of a similar dispute on whether
management honestly and reasonably believed McClure was a safety risk. See
George, 407 F.3d at 415. We conclude on this record Corteva cannot show the
question is undisputed. Along with contesting his safety history, McClure provided
evidence that could lead a rational jury to conclude Dehrkoop acknowledged
McClure’s improvement on certain performance issues right before firing him,
Dehrkoop and other supervisors knew about the malfunctioning docks and
unreliable forklift sensors, and this same forklift sensor data depicted McClure’s
forklift as going slower than the younger and nondisabled employee’s at the time
of collision—corroborating McClure’s version of events. Given this evidence, we 21
find fact questions on Corteva’s professed honest belief that McClure was a safety
risk are appropriately left for a jury rather than summary judgment.
B. Retaliation
Employers cannot retaliate against a person for opposing “any practice
forbidden under” the ICRA or for filing a complaint, testifying, or assisting “in any
proceeding” within the statute. Iowa Code § 216.11. To establish a retaliation
claim at summary judgment, McClure had to show he participated in a protected
activity, he was subject to an adverse employment action, and a causal connection
existed between the two. See Rumsey v. Woodgrain Millwork, Inc., 962 N.W.2d
9, 28 (Iowa 2021) (citation omitted). The district court found that McClure met the
first and second step but not the third. Causation is shown if the protected activity
was a motivating factor in the employer’s adverse employment action. Id. at 32;
DeBoom, 772 N.W.2d at 13.
McClure argues the district court erred in granting summary judgment on
his retaliation claim because his 2017 complaint played a part in his 2020
discharge. In doing so, McClure points out another employee showed both
Dehrkoop and Langstraat the complaint sometime after he filed it. And he
highlights how Corteva supervisors’ documentation of and discipline for (what
McClure calls) frivolous safety violations “ramped up” in the years following.
A plaintiff must link their protected activity to an employer’s adverse
employment action to survive summary judgment. And we agree with the district
court that McClure’s proffered link is too attenuated. McClure filed his complaint
more than two years before his discharge. Timing is not the be-all and end-all of
causation, but McClure must provide something showing his complaint played a 22
part in his termination. See Boyle v. Alum-Line, Inc., 710 N.W.2d 741, 750
(Iowa 2006) (discussing timing “combined with all the other circumstances in the
case”). He seeks to do so on a theory of increased unwarranted discipline and
documentation following his complaint. But most of his written warnings pre-date
the complaint, as did many of the supervisors’ documented safety concerns with
his forklift driving. While we found McClure has generated a fact question on
whether much of the documentation and discipline was frivolous, without more no
reasonable jury could find Corteva retaliated against him.
C. Hostile Work Environment
For a hostile-work-environment claim, McClure had to show at summary
judgment that he possessed a characteristic protected under the ICRA; he faced
unwelcome harassment; that harassment stemmed from his protected
characteristic; and the harassment affected a term, condition, or privilege of his
employment. Haskenhoff v. Homeland Energy Sols., LLC, 897 N.W.2d 553, 571
(Iowa 2017). Assuming Corteva’s conduct was unwelcome harassment based on
McClure’s age or disability, the district court found McClure failed to meet the last
element.
To prove workplace harassment affected employment, the effects of
harassment must rise “to the level of a hostile work environment when the
workplace is permeated with discriminatory intimidation, ridicule, and insult
sufficiently severe or pervasive to alter the conditions of the victim’s employment
and create an abusive working environment.” Valdez, 992 N.W.2d at 631 (cleaned
up) (citation omitted). In considering this objective standard, we weigh the
conduct’s frequency; its severity; whether it was physically threatening, 23
humiliating, or merely offensive; and whether it unreasonably interfered with job
performance. Farmland Foods, 672 N.W.2d at 744–45. “These factors and
circumstances must disclose that the conduct was severe enough to amount to an
alteration of the terms or conditions of employment.” Id. at 745.
McClure contends Corteva supervisors subjected him to unwelcome
harassment based on his age and disability in three ways. First, “through
unjustified discipline” that started in 2017 and carried on until his discharge.
Second, by Dehrkoop’s treatment of McClure’s shift accommodation. And finally,
through Corteva causing him to work “in an environment where employees were
regularly being mistreated” in similar ways based on their ages or disabilities.
But even taking McClure’s facts as true, we conclude a jury could not find
this harassment threatening or humiliating. Most of the unwarranted discipline and
mistreatment came from private written or oral communication. And McClure has
not shown how the supervisors’ harassment impacted his job performance after
Dehrkoop granted his shift accommodation, as his employment reviews continued
to rate his performance as successful other than the noted safety concerns. See
id. (noting that hostile-work-environment “claims by their nature involve ongoing
and repeated conduct, not isolated events”). Our supreme court also recently
clarified the value of “secondhand reports” of harassment in hostile-work-
environment claims, and McClure has not offered evidence he was aware of
mistreatment involving employees beyond what he noted in his 2017 internal
complaint. See White v. State, 5 N.W.3d 315, 328–29 (Iowa 2024) (finding
secondhand reports “of relatively little value” in proving personal experience of 24
harassment); Garang, 439 F. Supp. 3d at 1089 (differentiating these claims from
disparate-treatment claims).
IV. Disposition
Finding fact questions remain on McClure’s age- and disability-
discrimination claims under the ICRA, we reverse the district court’s grant of
summary judgment as to those issues. We affirm on all other claims.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.