IN THE COURT OF APPEALS OF IOWA
No. 20-1467 Filed March 30, 2022
DAVID ALAN FEEBACK, Plaintiff-Appellant,
vs.
SWIFT PORK COMPANY, TROY MULGREW and TODD CARL, Defendants-Appellees. ________________________________________________________________
Appeal from the Iowa District Court for Marshall County, Bethany Currie,
Judge.
David Feeback appeals the grant of summary judgment on his employment
lawsuit. AFFIRMED IN PART; REVERSED IN PART, AND REMANDED.
Bruce H. Stoltze Jr. of Stoltze & Stoltze, PLC, Des Moines, for appellant.
Ruth A. Horvatich and Aaron A. Clark of McGrath North PC LLO, Omaha,
Nebraska, for appellees.
Heard by Bower, C.J., and Tabor and Chicchelly, JJ. 2
TABOR, Judge.
Swift Pork Company fired long-time employee David Feeback after he sent
offensive text messages to a supervisor. In response, Feeback sued, alleging age
discrimination, workplace harassment, and wrongful termination. The district court
granted summary judgment for Swift1 on all three claims. Because a genuine issue
of material fact exists on the age-discrimination claim, we reverse that part of the
judgment and remand. But no reasonable jury could find in Feeback’s favor on the
other two claims. So we affirm on the remaining issues.
I. Facts and Prior Proceedings
Sixty-year-old Feeback worked at Swift for over two decades. As middle
management, he ran the cut floor for years, receiving mostly positive reviews.
Then in 2015, he started to receive negative feedback from his bosses. In May,
Feeback broached safety concerns with his direct supervisor, plant manager Todd
Carl. Swift was using worn-out trolleys to move carcasses on a rail system.
Feeback warned: “Due to the wear on the trolleys, carcasses were sliding back
down the incline and falling off the rail.” But Carl grew angry, emphasized the high
replacement costs, and ended the conversation.2 In a phone call a few weeks
later, Feeback reiterated his worry that someone could be hurt by a falling carcass.
But like the last time, Carl was unreceptive, hanging up mid-conversation.
1 Feeback’s suit named Swift Pork Company, as well as supervisors Troy Mulgrew and Todd Carl. For brevity, we will use the shorthand Swift when discussing all three defendants. 2 Although Feeback suggests Carl ignored this safety issue, Swift was addressing
the trolley problem when Feeback was terminated. 3
As Feeback tells it, Carl’s antagonism extended beyond that safety issue.
For instance, he accused Feeback of being “asleep at the wheel” and letting his
department run “out of control.” Soon, Feeback also detected hostility from Carl’s
supervisor, general manager Troy Mulgrew. In particular, Feeback recalled that
Mulgrew once interrupted Feeback’s bathroom break, accusing him of “fucking
around” in there. For a time, tensions eased. But workplace frictions flared again
near the holidays. In early December 2015, Feeback skipped a staff meeting,
choosing to stay on the short-staffed cut floor instead. That choice angered
Mulgrew, who reprimanded Feeback. And, despite approving Feeback’s absence,
Carl said nothing.
But New Year’s Eve proved the final straw. Trying to make up missed safety
training sessions, Feeback scheduled an afternoon meeting for his department.
But Swift often let employees go early on that date. Annoyed, Feeback’s crew
complained to Mulgrew. The manager intervened, cancelled the meeting, and sent
the employees home for the holiday. While the crew’s day was over, Feeback
wasn’t so lucky. Instead, Mulgrew called Feeback and Carl into his office where
he criticized Feeback at length. When Feeback tried to defend himself, Mulgrew
said that “he should be sitting there with his mouth shut and arms wide open.”
That night, Feeback sent two text messages to Mulgrew. The first read
“FUCK You!” The second, “Believe who and what you want.” Although Feeback
later claimed he meant to send the texts to his friend, Tim Turner, Feeback took
no action to explain the alleged mistake to Mulgrew.
Upset by the perceived insubordination, Mulgrew sent a screenshot of the
texts to Pete Charboneau, Swift’s head of human resources. The next morning, 4
Charboneau called Feeback. Feeback admitted sending the texts but told
Charboneau that “it was by mistake.” Charboneau asked why Feeback had not
“rescinded” the messages; Feeback replied he did not know how. Feeback also
testified in his deposition that he hadn’t explained the mistake to Mulgrew because
his meeting with Charboneau happened first thing in the morning.
Without further investigation, Charboneau suspended Feeback. And, a few
days later, Feeback was terminated.
In May 2018, Feeback sued, alleging age discrimination, retaliation,
workplace harassment, and wrongful termination. As trial neared, Swift moved for
summary judgment on the age discrimination, harassment, and wrongful
termination claims.3 Finding no genuine issues of material fact, the district court
granted Swift’s motion. Feeback now appeals.
II. Scope and Standard of Review
We review grants of summary judgment for errors at law. Smith v.
Shagnasty’s Inc., 688 N.W.2d 67, 71 (Iowa 2004). Like the district court, we view
the record in the light most favorable to the nonmoving party. Bill Grunder’s Sons
Const. Inc. v. Ganzer, 686 N.W.2d 193, 196 (Iowa 2004). If the district court
correctly applied the law and there was no genuine issue of material fact, we affirm.
Id. We consider an issue to be material if its determination affects the suit’s
outcome. Id. And the dispute is genuine if a reasonable jury could return a verdict
for the nonmoving party. Id.
3 Feeback withdrew the retaliation claim before Swift’s summary-judgment motion. 5
“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). So particularly in discrimination cases
[w]e should approach . . . with great caution. We should carefully examine the facts and ask ourselves with self-critical rigor and discipline the following: Have we refused to engage in credibility determinations? Have we refused to weigh the evidence? Have we given every legitimate inference of the meaning of evidence to the nonmoving party?
Hedlund v. State, 930 N.W.2d 707, 742 (Iowa 2019) (Appel, J., concurring in part
and dissenting in part).
III. Analysis
Feeback advances three causes of action: (1) age discrimination;
(2) harassment; and (3) wrongful termination. We take each in turn.
A. Age discrimination
Feeback first claims age discrimination provoked his firing. That claim
arises under the Iowa Civil Rights Act (ICRA), which declares that it is a
discriminatory practice to discharge any employee because of age, unless based
on the nature of the occupation. Iowa Code § 216.6(1)(a) (2015).
To start, we focus on that “because of age” language, or in other words,
causation. The parties clash over which causation test controls at the summary
judgment stage. On one side, Feeback points to Hawkins v. Grinnell Regional
Medical Center, 929 N.W.2d 261 (Iowa 2019). There, our supreme court “adopted
the motivating-factor test for causation in ICRA discrimination cases.” Id. at 272.
On the other side, Swift argues the McDonnell-Douglas burden-shifting analysis 6
still controls. See generally McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973).
True, Hawkins abandoned the McDonnell-Douglas test for instructing the
jury in a civil rights case. 929 N.W.2d at 272. But the proper standard on summary
judgment remains an open question. See Hedlund, 930 N.W.2d at 719 (declining
to resolve the ambiguity); see also Watkins v. City of Des Moines, No. 19-1511,
2020 WL 2988546, at *4–7 (Iowa Ct. App. June 3, 2020) (conducting both
analyses). So we consider both tests.
1. McDonnell-Douglas
McDonnell Douglas involves three steps. First, Feeback must establish a
prima facie discrimination case. See 411 U.S. at 802. Then, Swift may rebut that
prima facie case by showing “some legitimate, nondiscriminatory reason” for its
action. See id. Finally, Feeback must show the offered justification was pretext
and unlawful discrimination the actual reason for termination. See id. at 804.
Here, the first two steps are uncontroversial. When fired, Feeback was over
forty and had generally performed satisfactorily on the job.4 See Vaughn v. Must,
Inc., 542 N.W.2d 533, 538 (Iowa 1996) (describing three requirements of prima
facie case). For step two, Swift points to the disrespectful texts as a legitimate,
nondiscriminatory basis for termination.
And now we reach the heart of the dispute: was Swift’s reason for firing
Feeback pretextual? Feeback insists harsh language was ingrained in Swift’s
workplace culture. Because it was such a common occurrence, Feeback contends
4 Swift suggests that negative employee reviews existed. But Swift could not produce any records. 7
that his profane text could not be the real reason he was fired. Instead, he asserts
his age was the determinative factor. Supporting this position, Feeback points to
a pattern of older employees being terminated, demoted, or otherwise forced out
before retirement.
Swift disagrees with Feeback’s contention, arguing any similarly situated
employee would have been fired. Granted, profanity may have been pervasive at
the packing plant. But, in Swift’s view, it was not just Feeback’s use of the word
“fuck” in his text that led to his firing. It was the insubordination of directing such a
verbal assault at one’s supervisor that set his case apart. And Feeback’s singular
situation aside, Swift argues his pattern evidence should not be considered.
At this stage, we view the facts in the light most favorable to Feeback,
making all legitimate inferences in his favor. See Ganzer, 686 N.W.2d at 196.
That standard in mind, we believe a reasonable jury could find that Swift used the
text message as a pretext to terminate Feeback’s long-term employment with the
company based on his advancing age.
No doubt, insubordination could prompt a termination. But there’s a fact
question about who Feeback meant to text. As soon as he was confronted by
Charboneau, Feeback insisted Mulgrew was an unintended recipient. And other
evidence arguably supports the mistake theory. One of the two messages did not
make perfect sense in context. Granted, Mulgrew had rebuked Feeback earlier
that day. But the central dispute did not revolve around competing versions of
truth. So the second text—“Believe who and what you want.”—did not fit with the
conversation. Indeed, Mulgrew later agreed the second message seemed off and
there could have been a “possible” alternative recipient. 8
Given the potential misunderstanding, a reasonable jury may have credited
Feeback’s version when presented with Swift’s hasty response. Rather than
investigate a possible miscommunication, Charboneau suspended Feeback on the
spot. And within days he was fired. Considering Feeback’s decades with the
company, the ax fell with surprising speed. Indeed, during a deposition, Mulgrew
admitted the precipitous decision was “concerning” and that he “would expect
someone to look” into the situation before acting. What’s more, a text exchange
between the supervisors suggested Carl welcomed Feeback’s rapid departure.5
Beyond the possibility that the texts were not intended for Mulgrew and the
cursory investigation, there’s the company culture. Swearing was common.
According to Feeback, “pretty much anything went when it came to language” and
he notes over seventy-five instances when younger employees swore “at or in front
of supervisors.”6 Indeed, Swift doesn’t contest this phenomenon; Mulgrew agreed
5 After learning that Feeback was suspended, Mulgrew messaged Carl, stating, “Feeback not allowed to work.” Carl replied: “Amen.” 6 Swift launches two attacks on this information. First, it argues the statements
were inadmissible hearsay. Second, it contends the other employees weren’t similarly situated. Hearsay first, we agree with the district court: the statements aren’t offered for their truth. Instead, Feeback offers them to show that the cursing happened. See Iowa R. of Evid. 5.801(c). As for being similarly situated, Swift notes none of those other employees swore at Mulgrew. See Massey-Diez v. Univ. of Iowa Cmty. Med. Servs., Inc., 826 F.3d 1149, 1163 (8th Cir. 2016) (characterizing the similarly situated test as a “rigorous” one which should consider all “relevant aspects”). But that fact may not be dispositive. See Anderson v. WBMG-42, 253 F.3d 561, 565–66 (11th Cir. 2013) (rejecting “proposition that whenever two different supervisors are involved . . . the comparators cannot as a matter of law be similarly situated.”). Indeed, the test may be more malleable than Swift suggests. See, e.g., Ridout v. JBS USA, LLC, 716 F.3d 1079, 1085 (8th Cir. 2013) (testing for “comparable seriousness,” not a “clone”); Lewis v. City of Union City, Georgia, 934 F.3d 1169, 1185 (11th Cir. 2019) (looking for a “convincing mosaic” of evidence that could lead to inference of 9
cursing was not unusual in their workplace. In sum, a reasonable jury—
considering the workplace norms, Feeback’s ambiguous intent, and the lack of
investigation—could find the quick termination was pretextual.
But was it based on age? Showing pretext alone is insufficient; pretext must
be coupled with discrimination. See Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 146 (2000) (“It is not enough to disbelieve the employer; the
factfinder must believe the plaintiff’s explanation of intentional discrimination”)
(emphasis original) (cleaned up). The district court found no discrimination
because Feeback “lack[ed] . . . affirmative evidence that . . . age actually played a
role in the decision to terminate his employment.” We agree the record contains
no comments from Carl or Mulgrew revealing discriminatory feelings toward
Feeback based on his age. See Hedlund, 930 N.W.2d at 721 (discussing when
remarks by decision makers may show influence of discriminatory feelings on
adverse employment action).
But Feeback does not need direct proof of discriminatory intent to survive a
summary-judgment motion. A contrived reason for termination is a sign of
discrimination. See Smidt v. Porter, 695 N.W.2d 9, 16 (Iowa 2005).7 “[O]nce the
discrimination); Johnson v. Advoc. Health & Hosps. Corp., 892 F.3d 887, 895 (7th Cir. 2018) (describing the test as “flexible, common-sense, and factual”). In any event, we decline to decide this issue for three reasons. First, we see this as workplace culture, not comparator evidence. Second, the district court did not decide this issue. And, third, missing a similarly situated employee isn’t fatal to a discrimination claim. See, e.g., Gustafson v. Genesco, Inc., 320 F. Supp. 3d 1032, 1050 (S.D. Iowa 2018) (denying summary judgment in sex discrimination case in which “Gustafson cannot show she was treated differently from similarly situated male employees” but produced other evidence). 7 See also St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 517 (1993) (“[P]roving the
employer’s reason false becomes part of (and often considerably assists) the greater enterprise of proving that the real reason was intentional discrimination.”). 10
employer’s justification has been eliminated, discrimination may well be the most
likely alternative explanation, especially since the employer is in the best position
to put forth the actual reason for its decision.” Id. (quoting Reeves, 530 U.S. at
147–48). In Reeves, the court explained that “a prima facie case and sufficient
evidence to reject the employer’s explanation may permit a finding of liability.” 530
U.S. at 149. In other words, in appropriate circumstances a plaintiff may create a
fact question by showing “the employer is dissembling to cover up a discriminatory
purpose.” Id. at 147.
We find such circumstances are present here. In his prima facie case,
Feeback asserts Swift has a pattern of demoting, terminating, or forcing out older
employees. He believes that, as a sixty-year-old employee nearing retirement, he
was the latest casualty of this practice.
To support this claim, Feeback relies on an affidavit tracking his
observations during his years at Swift.8 He describes nine management-level
employees who were “forced out after reaching age fifty-six.” He also notes Swift’s
“high management turnover rate and low retirement rate.” But again Swift
challenges the affidavit, arguing its substance would be inadmissible at trial. See
Iowa R. Civ. P. 1.981(5) (“Supporting and opposing affidavits shall be made on
personal knowledge, shall set forth such facts as would be admissible in evidence,
and shall show affirmatively that the affiant is competent to testify to the matters
8 The district court characterized the affidavit as “self-serving.” But that characterization suggests a credibility determination—improper on summary judgment. Even affidavits which prove to be self-serving may be evidence for the trier of fact to believe or disbelieve. See Bieniak v. Romstad, No. 05-0432, 2005 WL 1750489, at *5 (Iowa Ct. App. July 27, 2005). 11
stated therein.”). The district court agreed, finding Feeback’s “barebones
allegations regarding other employees” cannot be considered.
Feeback counters that his information about the fate of those older
employees was based on his “personal knowledge of management decisions” and
“his own observations whether employees were terminated or demoted and how
old they were at the time the termination or demotion occurred.” 9 Unlike the district
court, we find Feeback’s affidavit contains “competent evidence even if it is not the
strongest evidence.” See Cap. One Bank (USA), N.A. v. Taylor, No. 13-2043,
2015 WL 7567398, at *6 (Iowa Ct. App. Nov. 25, 2015) (quoting definition of
competence in Black’s Law Dictionary (10th ed. 2014) as “a basic or minimal ability
to do something; adequate qualification, esp[ecially] to testify”). Feeback’s
awareness of what was happening in his workplace offered more than conjecture.
Contrast Wemett v. Schueller, 545 N.W.2d 1, 3 (Iowa Ct. App.1995) (determining
affidavit based on mere speculation could not avoid summary judgment). All nine
people who Feeback mentions stopped working for Swift after reaching their late
fifties. A jury could find this evidence persuasive on his discrimination claim. We
conclude Feeback’s affidavit set forth specific facts, based on his personal
knowledge of events in his workplace, showing there is a genuine issue of material
fact for trial, as required to defeat a motion for summary judgment. See Iowa R.
Civ. P. 1.981(5).
9The following example is representative: “In approximately 2009, Ms. Hughlette, Human Resources Manager, was terminated. She was approximately fifty-six years old.” 12
2. Motivating Factor
We next consider the motivating-factor test. Under this test, the plaintiff’s
protected characteristic must be a motivating factor in the adverse employment
decision. Hawkins, 929 N.W.2d at 270. The motivating-factor standard is more
easily met than the McDonnell Douglas test because Feeback need not show
Swift’s rationale for his firing was pretextual. See Quigg v. Thomas Cnty. Sch.
Dist., 814 F.3d 1227, 1240 (11th Cir. 2016) (describing “McDonnell Douglas’s
pitfall of demanding that employees show pretext” as “unnecessary” under
motivating factor test).
We find a triable issue of material fact under the motivating-factor test.
Feeback offered evidence that he was “ostensibly terminated” for his profane text,
while younger employees faced no repercussions for swearing in the workplace.
That disparate treatment, viewed together with the lack of investigation into the
intended recipient of his texts, could convince a reasonable jury that Swift fired
Feeback because of his age. Thus, we reverse the grant of summary judgment
on Feeback’s age discrimination claim and remand for trial.
B. Workplace Harassment
Feeback next claims Swift hosted a hostile-work environment. To succeed,
Feeback must prove these elements: (1) membership in a protected group;
(2) unwelcome harassment; (3) because of that group membership; (4) which
impacts a term, condition, or privilege of employment. See Haskenhoff v.
Homeland Energy Sols., LLC, 897 N.W.2d 553, 571 (Iowa 2017). To satisfy the
fourth element, Feeback must show his workplace was “permeated with
discriminatory intimidation, ridicule, and insult sufficiently severe or pervasive to 13
alter the conditions” of his employment and “create an abusive working
environment.” Id. In considering this standard, we weigh: (1) the conduct’s
frequency; (2) its severity; (3) whether the conduct was physically threatening or
humiliating or merely offensive; and (4) whether the conduct unreasonably
interfered with job performance. Farmland Foods, Inc. v. Dubuque Hum. Rts.
Comm’n, 672 N.W.2d 733, 744 (Iowa 2003).
The summary-judgment record includes several incidents that Feeback
considers harassing—some by Carl, some by Mulgrew. For instance, Carl once
criticized Feeback’s management skills, claiming he was “sleeping at the wheel.”
Another time, Carl hung up while Feeback voiced safety concerns. And finally,
Carl stood silent while Mulgrew reprimanded Feeback for missing a meeting—
despite Carl excusing the absence. Turning to Mulgrew, Feeback asserts that the
general manager twice said the word “fuck” around him, including once while he
was on a bathroom break.
But even viewing Feeback’s evidence in the most favorable light, we cannot
find the offending conduct was pervasive or severe.10 First, the isolated instances
happened over seven months. Second, the conduct was not menacing. Third, it
was not physically threatening. And fourth, the incidents did not impact his job
performance. On this record, the grant of summary judgment was proper.
C. Wrongful termination
Third and finally, Feeback alleges wrongful termination. He claims his firing
was retaliatory, a response to his complaints about the unsafe trolley system. To
10 Feeback’s counsel acknowledged at oral argument that this claim was not as strong as the age-discrimination cause of action. 14
prevail on this claim, Feeback must establish: (1) he engaged in a protected
activity; and (2) suffered adverse employment action; (3) because of that activity.
See Teachout v. Forest City Cmty. Sch. Dist., 584 N.W.2d 296, 299 (Iowa 1989).
Swift focuses on the third element: causation.11 For a retaliatory discharge
claim, the causation standard is higher than for a civil rights claim. Id. at 301.
Unlike the motivating-factor test for age discrimination, Feeback must show his
protected activity was the determinative factor in his termination. See Rivera v.
Woodward Res. Ctr., 865 N.W.2d 887, 893 (Iowa 2015). But it “need not be the
main reason behind the decision.” Smith v. Smithway Motor Xpress, Inc., 464
N.W.2d 682, 686 (Iowa 1990). Rather, the determinative factor is “the reason
which tips the scales decisively one way or the other.” Id.
We understand that causation and motive questions are generally best left
for resolution by a jury. See Fitzgerald v. Salsbury Chem., Inc., 613 N.W.2d 275,
289 (Iowa 2000). But summary judgment is proper if the plaintiff fails to link the
protected activity to the firing. See Phipps v. IASD Health Serv. Corp., 558 N.W.2d
198, 203 (Iowa 1997). That was the case here. First, seven months elapsed
between Feeback’s last-voiced safety concern and his termination. Second, when
Feeback was fired, Swift was updating the trolley system to address the concerns.
Third, the record lacks evidence Charboneau was aware of Feeback’s complaints.
11 Swift argued in the district court that Feeback’s safety complaints did not “amount to a defined and well-recognized public policy and that Carl and Mulgrew cannot be held individually liable for wrongful termination.” On appeal, Swift contends we need not reach those issues if we find Feeback’s comments about the trolleys were not the reason he was fired. 15
Given these circumstances, no reasonable jury could find Feeback’s safety alerts
tipped the scales toward termination.
To recap, we affirm the district court’s grant of summary judgment on the
hostile-work-environment and wrongful-termination causes of action. But we
reverse on the age-discrimination claim, remanding that cause of action for further
proceedings.
AFFIRMED IN PART; REVERSED IN PART, AND REMANDED.