IN THE SUPREME COURT OF IOWA
No. 22–1291
Submitted December 13, 2023—Filed February 2, 2024
SANDRA SELDEN,
Appellee,
vs.
DES MOINES AREA COMMUNITY COLLEGE,
Appellant.
Appeal from the Iowa District Court for Polk County, Scott Rosenberg,
Judge.
Following a jury verdict in favor of an employee in a case alleging illegal
wage discrimination based on sex and wrongful retaliation, the employer
appeals, and the employee cross-appeals. REVERSED AND REMANDED.
Mansfield, J., delivered the opinion of the court, in which all justices
joined.
Randall Armentrout (argued), Katie Graham, and Haley Hermanson of Nyemaster Goode, P.C., Des Moines, for appellant.
David Albrecht (argued) and Madison Fiedler-Carlson of Fiedler Law Firm,
P.L.C., Johnston, for appellee.
Jason M. Craig and Samuel A. McMichael of Ahlers & Cooney, P.C.,
Des Moines, for amicus curiae Iowa Community Colleges and Iowa Association
of Business and Industry. 2
MANSFIELD, Justice. I. Introduction.
The plaintiff, after discovering that a male employee was receiving a
significantly higher salary than her for doing the same job, voiced a concern with
her employer. The employer declined to act on her complaint, explaining that the
male employee had been with the company fifteen years longer and that the
difference in pay was due to his greater seniority and the initial decision to hire
him at a higher point in the salary range because of his thirteen years of relevant
experience. A few months later, the plaintiff’s supervisor retired, and the plaintiff
applied for her job. Her application was screened out because she lacked the
required educational qualifications. At this point, the plaintiff initiated a civil
rights complaint. She then filed a district court action alleging wage
discrimination and retaliation in violation of Iowa Code sections 216.6A and
216.11, the equal pay and “no retaliation” provisions of the Iowa Civil Rights Act
(ICRA).
After a trial, a jury awarded damages to the plaintiff on both claims. The
employer appeals. We conclude today that the record does not contain
substantial evidence of an illegal—as opposed to unfair—pay practice. The employer demonstrated without evidence to the contrary that the pay gap was
due to gender-neutral factors. Specifically, it resulted from the effects of a neutral
seniority system combined with a decision made to hire the male employee in
1998 at a particular rate based on market conditions and the employee’s
considerable experience. We also find that the retaliation claim was not
supported by substantial evidence because the trial showed that the employer
consistently screened out all applicants who lacked the required qualifications
and there was no evidence of hostility toward the plaintiff. For these reasons, we 3
conclude that the district court should have directed a verdict in favor of the
defendants, and we reverse and remand for that purpose.
II. Background Facts and Proceedings.
A. DMACC Hires Sandra Selden in 2013. In July 2013, Sandra Selden
applied to work as an Application Support Analyst 2 (ASA 2) at Des Moines Area
Community College (DMACC) in Ankeny. Selden had a bachelor’s degree in
political science and psychology and a master’s degree in management with a
certificate in nonprofit leadership. From 1997 through 2007, she worked in
administrative positions at two higher education institutions in New York. In
2007, she moved to Kansas, where she began working as an administrative
business analyst—and later a research analyst and an applications analyst—at
Washburn University. There, she gained experience with Banner, an enterprise
software used by many higher education institutions, including Washburn and
DMACC.
According to DMACC’s 2013 job posting, the ASA 2 position at the time
had a hiring range of $64,859 to $81,074. Selden was offered the job at an
annual salary of $68,000; she countered at $72,000; and the parties settled on
$70,000. B. Selden Raises a Concern About Pay Equity in January 2019. Selden
received regular annual increases such that her salary by fiscal year 2019 had
reached $82,292. However, over time, Selden became aware that a male
employee holding the same ASA 2 position, Bryan Tjaden, made substantially
more money than her, and that he also made somewhat more than three other
women who also worked as ASA 2s. For example, during fiscal year 2019, Tjaden
was paid $108,681.
On January 9, 2019, Selden spoke with her boss, Linda Fiderlick, about a lack of pay equity. Fiderlick forwarded Selden’s complaint to Employment 4
Director Kim Lacey for a response. Lacey responded in an email that Tjaden had
fifteen years more seniority than Selden. Lacey added that while the other three
women had roughly the same amount of experience as Tjaden, she assumed
Tjaden “came in with a higher salary . . . [in 1998] because of his strong technical
background in information systems.” Lacey’s email was provided to Selden.
C. Bryan Tjaden’s Hiring in 1997–1998. In fact, Tjaden had joined
DMACC in 1998 as an ASA 2, whereas the other three women had worked as
ASA 1s until their jobs were reclassified as ASA 2s in 2000.1 When Tjaden was
hired, the posted salary range for his position was $36,257 to $54,385. At that
time, Tjaden had an associate of applied science (AAS) as a systems analyst and
thirteen years of experience as a computer operator, applications programmer,
and information analyst, including the last three years with Principal Financial
Group. Tjaden requested a starting salary of $46,000 which DMACC agreed to.
This was the same salary Tjaden had been earning at Principal.
In 1997, when Tjaden applied to DMACC, the job market was good for
programmers because of the “Y2K effort.”2 According to Tjaden, there was a push
around the country to ensure that computer software “could handle the change
of the century” and “to make sure the software was compliant to the year 2000.” He stated that Principal was offering raises to all its programmers to retain them.
Tjaden’s starting salary of $46,000 amounted to approximately 53.75% of the
difference between the posted minimum and the posted maximum in the job
listing.
1We refer to the ASA positions by their current titles throughout this opinion. In 1998,
the role had a different title but involved essentially the same duties. 2The concern was that existing computer software and hardware—and the systems they
supported—would be unable to handle the transition from December 31, 1999, to January 1, 2000. 5
In addition, at that time, DMACC badly needed employees to support
Banner. As one of the employees hired in that time period testified, “We were the
first people hired to just support Banner. [DMACC] had just come up on Banner.”
D. Selden Applies for a Supervisory Position in April 2019. Shortly
after Selden had the discussion raising her pay equity concerns, Fiderlick
announced her retirement. A job posting for the supervisor position went up on
March 7. It was originally scheduled to close on March 31. As the closing date
approached, Lacey noticed there were only five applicants. She felt that this was
a small pool of applicants, so the application deadline was extended. Selden
applied on April 3 with the support of her colleagues.
The job posting stated that applicants were required to have a bachelor’s
degree in computer science or a related field. Several applicants, including
Selden, did not have a bachelor’s degree in computer science or a related field.
Lacey screened them out and did not forward their applications to the hiring
committee. The job eventually went to Dražen Jocić, who had a bachelor’s degree
in management with concentrations in information systems and business
administration.
Selden and Tjaden both remain employed at DMACC. E. Selden Brings Suit Against DMACC. On August 8, Selden filed
employment discrimination and retaliation charges against DMACC with the
Iowa Civil Rights Commission (ICRC). On January 2, 2020, the ICRC issued
Selden a right-to-sue letter regarding these charges. The following month, Selden
filed a petition against DMACC in the Iowa District Court for Polk County. She
raised two claims. First, that DMACC was not paying her equal wages for equal
work as compared with Tjaden, in violation of Iowa Code section 216.6A(2)(a)
(2019). Second, that DMACC had denied her a promotion in retaliation for her internal complaint, in violation of Iowa Code section 216.11(2). 6
F. Trial. On November 1, 2021, the parties proceeded to a jury trial. On
the wage discrimination claim, Selden didn’t challenge Tjaden’s higher
compensation to the extent it was due to his seniority, nor did she complain
about the regular lockstep pay increases they had both received over the years.
Her contention, rather, was that DMACC engaged in unlawful wage
discrimination by starting her at a relatively lower salary within the initial pay
range in 2013 as compared to Tjaden in 1998. As Selden has reiterated in her
appellate brief, “The relevant issue for the jury was Defendant’s pay practices at
the time it hired Tjaden and at the time it hired [Selden].”
According to Selden’s calculations, when she started work in 2013, her
$70,000 salary only placed her at 15% between the bottom and the top salary in
the pay scale.3 When Tjaden began in 1998, his $46,000 salary (equivalent to
about $66,000 in 2013 dollars) put him at 54% between the bottom and the top
salary in his pay scale. Selden’s theory was that she should have started at the
54% interval in the pay scale in 2013, and received commensurate lockstep pay
increases thereafter.
In addition to seeking damages for the wage differential dating back to
2013 and for lost income for not getting the supervisor position, Selden also sought emotional distress damages. Selden testified that it was “humiliating” to
have people ask her why she didn’t apply for the supervisor position and to have
to tell them that she did apply but did not get an interview. She said, “I’m just
generally less happy than I was before.” She said she used to bake a lot and does
not do that any longer.
3We are not sure exactly how Selden calculated her 15% figure because the posted salary
range for Selden’s position was $64,859 to $81,074. Thus, $70,000 put her at about 32% of the differential between bottom and top. We believe that Selden may have used as the upper limit of her range the highest possible pay anyone could receive in that position—even if they had been already working at DMACC for years—not the highest possible pay a new hire could earn. 7
Selden’s spouse and father also testified regarding the emotional distress
claim. Selden’s spouse elaborated that “the joy [in her] just really began to
diminish.” He added that Selden was crying more, was unsure of herself and
questioned herself, and emotionally had been “tapped out.” Selden’s father
testified that Selden didn’t seem as outgoing as before. In his words, she had
“lost that focus on her family,” “seemed a little bit upset all the time,” and was
“a little short sometimes with her daughters.” Selden did not present any
evidence that she had undergone any therapy or other treatment for emotional
distress.
At the close of the evidence, DMACC moved for a directed verdict on both
of Selden’s claims. On the wage discrimination claim, DMACC urged that Tjaden
wasn’t a valid comparator for legal purposes because he had started fifteen years
before Selden. DMACC also argued that the evidence established conclusively as
an affirmative defense that any difference in pay was due to factors other than
sex. See Iowa Code § 216.6A(3). In addition, DMACC insisted that even if there
were evidence of an equal-pay violation, no evidence existed that it was willful so
as to support a treble damage award. See id. § 216.15(9)(a)(9)(b).
DMACC also maintained that Selden had not proved the elements of a retaliation claim. In DMACC’s view, Selden had not presented substantial
evidence that she had opposed an unlawful practice or was retaliated against.
See id. § 216.11(2). Additionally, DMACC argued that the statute of limitations
barred Selden from raising any wage differentials that preceded the 300-day
filing limitation under the ICRA. See id. § 216.15(13). Further, DMACC argued
that emotional distress damages and lost pension benefits were not recoverable
as damages on the wage discrimination claim.
The district court denied DMACC’s motion and submitted Selden’s entire case to the jury. The jury returned a verdict in Selden’s favor on both claims. It 8
awarded $223,571 in total backpay on the wage discrimination and retaliation
claims, $720,975 in past and future emotional distress damages for wage
discrimination, and $434,375 in past and future emotional distress damages for
retaliation. The jury also found that DMACC’s violation of the
wage-discrimination law had been “willful.”
G. Posttrial Motions and Appeal. Posttrial, the district court
reconsidered its earlier view that emotional distress damages were recoverable
on equal-pay claims and granted DMACC’s motion for judgment notwithstanding
the verdict on that point. Otherwise, it overruled DMACC’s posttrial motion and
entered judgment for Selden on the verdict. The court also awarded Selden
$217,966 in attorney fees and costs and, as equitable relief, directed DMACC to
email its employees about “their right to access their wage information, along
with directions on how to access it.” DMACC appealed and Selden
cross-appealed.
On appeal, DMACC raises a number of issues. It maintains that the district
court erred (1) in denying a directed verdict on Selden’s wage-discrimination
claim, (2) in denying a directed verdict as to whether any violation was willful,
(3) in rejecting its argument that the statute of limitations barred any wage-discrimination recovery for the period predating the ICRA’s 300-day
complaint-filing window, and (4) in refusing to direct a verdict on Selden’s
retaliatory failure-to-hire claim. DMACC also argues that the backpay and
emotional distress awards were excessive and that the district court committed
evidentiary errors.
Selden’s cross-appeal asserts that the district court erred in taking away
the emotional distress damage award on the wage-discrimination claim. We
retained the appeal. 9
III. Standard of Review.
We review district court rulings on motions for directed verdict and
judgment notwithstanding the law “for the correction of errors at law.” Godfrey
v. State, 962 N.W.2d 84, 99 (Iowa 2021). When considering a jury verdict, “we
‘view the evidence in the light most favorable to the party against whom the
motion is made.’ ” Id. (quoting McClure v. Walgreen Co., 613 N.W.2d 225, 230
(Iowa 2000) (en banc)).
We consider issues of statutory interpretation for correction of errors at
law. Ackelson v. Manley Toy Direct, L.L.C., 832 N.W.2d 678, 680 (Iowa 2013).
“We generally review claims of evidentiary errors for an abuse of the district
court’s discretion.” Vroegh v. Iowa Dep’t of Corr., 972 N.W.2d 686, 697 (Iowa
2022).
When evaluating excessive damages claims, “we view the evidence in the
light most favorable to the plaintiff.” Kuta v. Newberg, 600 N.W.2d 280, 284 (Iowa
1999). We will disturb a jury’s damages verdict only if it is “flagrantly excessive
or inadequate, so out of reason so as to shock the conscience, the result of
passion or prejudice, or lacking in evidentiary support.” Id. (quoting Olson v.
Prosoco, Inc., 522 N.W.2d 284, 292 (Iowa 1994) (en banc)). IV. Legal Analysis.
A. Should a Directed Verdict Have Been Granted on the
Wage-Discrimination Claim? We first consider whether the district court
should have granted a directed verdict on Selden’s wage-discrimination claim.
Iowa Code section 216.6A is “Iowa’s equal pay law.” Dindinger v. Allsteel, Inc.,
860 N.W.2d 557, 559 (Iowa 2015). It is our state’s counterpart to the Federal
Equal Pay Act, which has similar wording. See id. at 564–65. Specifically, section
216.6A(2)(a) states, 10
It shall be an unfair or discriminatory practice for any employer or agent of any employer to discriminate against any employee because of the . . . sex . . . of such employee by paying wages to such employee at a rate less than the rate paid to other employees who are employed within the same establishment for equal work on jobs, the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.
Iowa Code § 216.6A(2)(a). Section 216.6A is a “strict liability” statute: the
employee need not show the employer acted with discriminatory intent.
Dindinger, 860 N.W.2d at 564–65.
The remedy for a violation of section 216.6A includes either of the
following: “[a]n amount equal to two times the wage differential paid to another
employee compared to the complainant” or “[i]n instances of willful violation, an
amount equal to three times the wage differential.” Iowa Code § 216.15(9)(a)(9).
Section 216.6A recognizes, however, that there may be circumstances
where a wage disparity is justified, such as a seniority system. Thus, the
employer has an affirmative defense in the following circumstances:
a. Payment of wages is made pursuant to a seniority system.
b. Payment of wages is made pursuant to a merit system.
c. Payment of wages is made pursuant to a system which measures earnings by quantity or quality of production.
d. Pay differential is based on any other factor other than the . . . sex . . . of such employee.
Id. § 216.6A(3) (emphasis added).
Both the liability standard and the affirmative defenses resemble the
standards set forth in the Federal Equal Pay Act, which provides,
No employer . . . shall discriminate . . . between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs . . . which require[] equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such 11
payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex . . . .
29 U.S.C. § 206(d)(1) (2019).
No one disputes that Selden and Tjaden performed the same jobs and that
Tjaden was paid significantly more. And no one disputes that Tjaden had fifteen
years of seniority on Selden, that the seniority system functioned in a
gender-neutral way, and that the seniority system accounted for much of the
difference in pay. Selden’s theory—for which she can cite no equal-pay-law
precedent involving comparators so many years apart—is that it violated section
216.6A for DMACC to pay her $70,000 in 2013 when she joined, or what she
claims to be 15% of the difference between the bottom and top of the pay scale
for the position, while paying Tjaden $46,000 in 1998 when he joined, or what
she claims to be 54% of the difference between the bottom and top of the pay
scale for the position at that time.4 As Selden explains, if she had started in 2013
at 54% of the potential pay range, she would have received more wages over the
years, since DMACC gave every ASA 2 the same percentage pay bump every year.
Selden’s wages still would have been less than Tjaden’s, but the gap would have
been smaller.
But this assumes one can compare the beginning of 1998 to the second
half of 2013, a gap of some fifteen-and-a-half years. Wage-discrimination claims
are typically proved through a comparator, a favored individual who is paid more
than the plaintiff. We pass over the question of whether the starting salary of
someone hired in 1998 can be compared to the starting salary of someone hired
in 2013. Even if it can, DMACC offered unrebutted evidence that market
conditions for hiring information technology (IT) personnel were more demanding
4As noted above, Selden was hired at 32%—not 15%—of the advertised pay range. 12
in 1998 and that Tjaden had more relevant experience than Selden when each
of them was hired.
Economic conditions can be a valid justification for starting employees at
different rates at different times. In Sowell v. Alumina Ceramics, Inc., a female
tool maker was paid less than two males who were hired after her. 251 F.3d 678,
681 (8th Cir. 2001). She sued her employer on various discrimination charges,
and the district court granted her employer’s motion for summary judgment. Id.
at 681–82. The United States Court of Appeals for the Eighth Circuit held that
the employer’s “defense that it had to pay higher wages to these newly hired tool
makers because of job market demands” was a valid factor other than sex to
explain the pay differential. Id. at 684.
This is not to say that references to market conditions automatically end
all debate. Obviously, an employer can’t argue that men should receive more
simply because it is harder to hire male employees. Corning Glass Works v.
Brennan, 417 U.S. 188, 205 (1974) (condemning a pay differential that “arose
simply because men would not work at the low rates paid women”). Nor can an
employer rely on economic conditions to justify a pay differential when those
conditions would have applied across the board to both the plaintiff and the comparator. See Dindinger v. Allsteel, Inc., 853 F.3d 414, 423 (8th Cir. 2017)
(“[T]o the extent the merit-based pay raise freeze affected wages, the evidence
demonstrates that it did not cause the plaintiffs to be paid less than their male
comparators, but merely held pre-existing wage differentials in place.”).
But DMACC showed that it was a seller’s market for IT personnel in 1998,
when Tjaden was hired, as contrasted with 2013, when Selden was hired. A labor
economist testified that the widespread concerns about Y2K had an impact on
the late 1990’s market. As he explained, 13
[T]hey’re operating in the same labor market as the companies who are worried about their computer systems failing. So there’s all these other employers trying to hire people with those coding skills.
Even if you’re a company who isn’t worried that their computer system is going to fail, if they’re trying to hire people to do a job and those people have the skills to be able to fix somebody else’s computing systems, you’re going to have to fight over that person. So that’s going to affect the pay that you have to offer them to come to work for you.
Conversely, the market for IT personnel looked quite different when Selden
was hired in 2013. The same labor economist testified,
[I]n 2013 we were sort of coming out of the aftermath of the Great Recession. The Great Recession was started in 2008, 2009, maybe the very end of 2007. The labor market was in very bad shape in 2009 and 2010. Lots of people lost their jobs. The labor market was starting to recover, but was still feeling the aftereffects of the recession by 2013.
There also was a lot of advancement in computing technology between 1998 and 2013, so there was a lot more people using things like the internet in 2013 as compared to 1998, so all those things would tend to make the labor markets different in 1998 and 2013.
Selden argues that DMACC was not worried about suffering a Y2K
catastrophe itself because it was using relatively new enterprise software. But
this does not alter the fact that there were effects on the labor market within
which DMACC had to hire. Tjaden testified that his former employer was
attempting “to retain their programmers by giving everybody a raise.” When
Tjaden joined DMACC, he received $46,000 annually because he asked to be
paid the same amount as he was receiving at that prior employer:
Q. Did you have any negotiation with DMACC about your starting pay? A. Not that I recall. My only desire was to make the same that I was making at [my prior job].
Q. So did you tell DMACC the dollar amount of what you wanted to earn? A. I’m sure I would have, yeah.
.... 14
Q. 46,000 is the dollar amount you asked DMACC to pay you? A. I would say yes.
Q. That’s what you were being paid at [your former job]? A. Yes.
Fifteen-and-a-half-years later, Selden requested a salary of $72,000 and
ultimately agreed to $70,000, which was $20,000 more than the $50,000 per
annum she was getting from Washburn in Kansas:
Q. You negotiated your starting salary with Linda Fiderlick; is that right? A. Yes.
Q. Linda offered you $68,000; correct? A. Correct.
Q. You went back with a counteroffer for $72,000; correct? A. Correct.
Q. Linda came back and offered you 70? A. Yes.
Q. You accepted the $70,000 as your starting salary; right? A. Yes.
We are not saying that differences in prior salary alone can justify
disparate pay for men and women. But here the record shows that DMACC didn’t
base salary offers on prior compensation with Selden in 2013 and did so with
Tjaden in 1998 only because—given market conditions—they had to match his
existing salary to get him to come work for them. See Horner v. Mary Inst., 613 F.2d 706, 714 (8th Cir. 1980) (“There is evidence to find that Stearns met
Thorne’s demand not because Thorne was male but because Thorne’s experience
and ability made him the best person available for the job and because a higher
salary was necessary to hire him. The differential was based on a factor other
than sex.”).
DMACC also showed that Tjaden had more IT experience when he was
hired. Selden disputes how much more, but it was clearly greater than her own.
See Mayorga v. Marsden Bldg. Maint. LLC, 55 F.4th 1155, 1161 (8th Cir. 2022) (“A ‘differential that is based on education or experience is a factor other than 15
sex.’ ” (quoting Hutchins v. Int’l Bhd. of Teamsters, 177 F.3d 1076, 1081 (8th Cir.
1999))); Wyant v. Burlington N. Santa Fe R.R., 210 F. Supp. 2d 1263, 1291 (N.D.
Ala. 2002) (“[E]xperience is an acceptable factor other than sex if [it is] not used
as a pretext for differentiation because of gender.” (second alteration in original)
(quoting Irby v. Bittick, 44 F.3d 949, 956 (11th Cir. 1995))).
Selden has little by way of response. She cites Marshall v. J.C. Penney Co.
as involving discrimination in the pay scales for male and female employees
across a nine-year period. See 464 F. Supp. 1166, 1179 (N.D. Ohio 1979) (noting
that the company “continues to maintain unlawful wage differentials” from “1970
[to] the present”). But the court there compared the pay scales year by year as
between men and women, not one person’s starting salary in 2013 to another
person’s starting salary in 1998. See, e.g., id. at 1184. She also cites Ledbetter v.
Alltel Corporate Services, Inc., as approving a damages award that utilized
“penetration rates” and what a Black employee would have earned hypothetically
at a different penetration rate. See 437 F.3d 717, 724–26 (8th Cir. 2006).
Ledbetter, though, was a Title VII case, and there was no indication that the
plaintiff was trying to draw a comparison between two penetration rates for a
pair of employees fifteen years apart. See id. at 720–21. Selden’s main argument is that DMACC failed to prove that it placed
Tjaden at a higher level on the pay scale in 1998 because of his superior
experience or market conditions. We disagree. There was unrebutted evidence
that market conditions were favorable for computer programmers in 1998, that
Tjaden asked DMACC to match his existing salary of $46,000, and that matching
that salary was his “only desire.” Documentary evidence from the personnel file
indicates that DMACC valued him for having “thirteen years experience in
information systems” and a “strong technical background.” It is true that the supervisor who prepared this document and could have spoken directly to 16
Tjaden’s hiring didn’t testify at trial; he no longer worked at DMACC and,
twenty-three years later, may not have been available. But given the years that
had passed, DMACC’s combination of expert testimony about market conditions
in 1998, direct testimony about the same, direct testimony from Tjaden, and
documentary evidence about Tjaden’s hiring was more than enough to establish
an unrebutted affirmative defense. Any other result would lead to a paradox: The
more time that separates a comparator from the plaintiff, the harder it would be
for an employer to defend itself and the easier it would be for a plaintiff to prove
their case. In sum, DMACC established its affirmative defense, and Selden
presented no evidence to the contrary. See Mayorga, 55 F.4th at 1161.
Accordingly, DMACC was entitled to a directed verdict on the
wage-discrimination claim.
B. Should a Directed Verdict Have Been Granted on the Retaliation
Claim? DMACC argues that Selden failed to prove the elements of a retaliation
claim and that it was entitled to a directed verdict. The ICRA provides:
It shall be an unfair or discriminatory practice for . . . [a]ny person to discriminate or retaliate against another person in any of the rights protected against discrimination by this chapter because such person has lawfully opposed any practice forbidden under this chapter, obeys the provisions of this chapter, or has filed a complaint, testified, or assisted in any proceeding under this chapter.
Iowa Code § 216.11(2).
Under Iowa law, “[t]o prevail on a statutory retaliation claim, the plaintiff
must show ‘(1) that he or she engaged in statutorily protected activities; (2) an
adverse employment action was taken against him or her; and (3) a causal
connection exists between the two events.’ ” Godfrey, 962 N.W.2d at 106–07
(quoting Sellers v. Deere & Co., 23 F. Supp. 3d 968, 986 (N.D. Iowa 2014)). 17
DMACC does not challenge the first or second elements but contends that
Selden failed to prove the third element of the test. “To establish a causal
connection, the plaintiff must show the plaintiff’s protected activity was a
motivating factor in the employer’s subsequent adverse employment action.” Id.
at 107 (emphasis added) (citing Hawkins v. Grinnell Reg’l Med. Ctr., 929 N.W.2d
261, 272 (Iowa 2019)); see also Rumsey v. Woodgrain Millwork, Inc., 962 N.W.2d
9, 31–32 (Iowa 2021) (stating that the motivating standard is “the proper
standard for assessing that causal connection”); Haskenhoff v. Homeland Energy
Sols., LLC, 897 N.W.2d 553, 602 (Iowa 2017) (Cady, C.J., concurring in part and
dissenting in part) (“I concur in the opinion of Justice Appel to adopt the
motivating factor causation standard.”). But “temporal proximity is generally
insufficient alone to establish the causal connection.” Rumsey, 962 N.W.2d at
33.
The undisputed evidence in this case establishes that Selden was screened
out for the supervisor position because she lacked the required degree. All the
candidates who lacked a degree in computer science or a related field were
screened out, and the person who was ultimately hired had such a degree.
Selden points out that Lacey did the screening, which occurred in April 2019, approximately three months after Selden had complained to Lacey about pay
equity. But after all, Lacey was the Employment Director. There is no evidence
that Lacey had an animus against Selden and certainly no direct evidence of
retaliation. Selden makes much of the fact that Lacey updated her own boss on
January 10, 2019, with an email that stated, “Just keeping you informed . . .
hopefully no more will come of this.” We are unable to detect any personal
hostility toward Selden from this email. In addition, there is no evidence that
Selden had any communications regarding pay equity during the three months 18
preceding her application for the supervisor position or preceding the date when
her application was screened out.
Selden also points out that Fiderlick—the supervisor who was being
replaced—lacked a college degree in computer science or a related field. But the
undisputed evidence established that the degree requirement had been put in
place in 2007 and that Fiderlick had been grandfathered in at that time based
on standard DMACC policy. Lacey testified that she had never made any
exceptions in the hiring process to the posted required qualifications: “[T]hat
wouldn’t be fair to other applicants if we hired somebody with other
qualifications that weren’t posted.” This was confirmed by DMACC’s hiring
handbook, which was introduced into evidence.
Selden notes that Lacey was unaware at the time that the outgoing
supervisor, Fiderlick, lacked a college degree in computer science or a related
field. It is puzzling why Selden believes this fact supports her position. If
anything, it tends to negate any suggestion that Lacey screened out Selden in
bad faith, being unaware of the degrees held by her predecessor.
Selden also argues that Tjaden himself in 1998 was hired as an ASA 2
even though he lacked the bachelor’s degree then required for that position. (Tjaden had only an AAS as a systems analyst.) Yet Selden glosses over the
enumerated exception in the job posting for the ASA 2 position: a candidate could
substitute relevant experience for education, with six months of experience
equivalent to fifteen semester credit hours. Tjaden had thirteen years of relevant
experience.
In defending the jury’s verdict, Selden maintains that “it was the jury . . .
who determined she was not only qualified, but the most qualified,” to be
supervisor. Yet this misconceives the purpose of chapter 216. It is neither the jury’s role, nor our role, “to sit as super-personnel departments reviewing the 19
wisdom or fairness of the business judgments made by employers,” provided
those actions do not violate an actual prohibition in chapter 216. Feeback v.
Swift Pork Co., 988 N.W.2d 340, 350 (Iowa 2023) (quoting Vroegh, 972 N.W.2d
at 695). Selden failed to present substantial evidence that retaliation was a
motivating factor in her being denied a promotion for which she lacked a
necessary qualification. Therefore, DMACC was entitled to a directed verdict on
the retaliation claim.5
Because we have concluded that the district court should have directed a
verdict for DMACC on Selden’s wage-discrimination and retaliation claims, we
need not reach DMACC’s remaining contentions on appeal or Selden’s
cross-appeal.
V. Conclusion.
For the foregoing reasons, we reverse the district court’s order and remand
for entry of judgment for DMACC in accordance with this opinion.
REVERSED AND REMANDED.
5An illustrative federal case is Mount v. Johnson, 174 F. Supp. 3d 553 (D.D.C. 2016), decided by Justice Jackson when she served on the United States District Court for the District of Columbia. The plaintiff claimed that the defendant had denied him a promotion in retaliation for his prior filing of an EEO discrimination charge. Id. at 558. The plaintiff, however, did not possess some of the required qualifications for the new position. Id. at 564–65. The district court granted summary judgment to the defendant, reasoning that the four-month proximity between the filing of the charge and the denial of the promotion was not enough for the plaintiff to get to the jury. Id. at 565–66.