Mahler v. First Dakota Title Limited Partnership et al

Filing 35

ORDER granting 23 Motion for Summary Judgment. The Final Pretrial Conference is canceled and the trial date is vacated. Signed by Judge Linda R Reade on 2/28/2018. (pac)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION

PAMELA J. MAHLER,
Plaintiff,

No. 16-CV-4127-LRR

vs.

ORDER

FIRST DAKOTA TITLE LIMITED
PARTNERSHIP et al.,
Defendants.
____________________
TABLE OF CONTENTS
I.

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

II.

RELEVANT PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . . . . . . . . 2

III.

SUBJECT MATTER JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . 3

IV.

SUMMARY JUDGMENT STANDARD . . . . . . . . . . . . . . . . . . . . . . . . . 3

V.

RELEVANT FACTUAL BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . 5
A.
B.

VI.

The Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Mahler’s Employment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.
2014 protected activities . . . . . . . . . . . . . . . . . . . . . . . . . .
2.
Mahler’s performance . . . . . . . . . . . . . . . . . . . . . . . . . . .
3.
2015 protected activities . . . . . . . . . . . . . . . . . . . . . . . . . .
4.
Mahler’s termination . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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5
6
6
8
9

ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
A.

Count I: Hostile Work Environment . . . . . . . . . . . . . . . . . . . . .
1
Parties’ arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.
Applicable law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3.
Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
a.
Protected activity . . . . . . . . . . . . . . . . . . . . . . . . .
b.
Prima facie case . . . . . . . . . . . . . . . . . . . . . . . . .
i.
Protected class . . . . . . . . . . . . . . . . . . . . . .
ii.
Unwelcome harassment . . . . . . . . . . . . . . . .

10
10
10
11
11
13
13
13

B.
C.

D.

VII.

McDonnell Douglas Burden-Shifting . . . . . . . . . . . . . . . . . . . . .
Count I: Sex Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . .
1.
Parties’ arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.
Applicable law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3.
Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
a.
Prima facie case . . . . . . . . . . . . . . . . . . . . . . . . .
i.
Inference of discrimination . . . . . . . . . . . . . .
b.
Pretext . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Count II: Retaliation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.
Direct evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.
Parties’ arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3.
Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4.
Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
a.
Prima facie case . . . . . . . . . . . . . . . . . . . . . . . . .
i.
Causal connection . . . . . . . . . . . . . . . . . . . .
b.
Pretext . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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19
19
19
20
20
20
22
24
24
27
27
28
28
28
30

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
I. INTRODUCTION
The matter before the court is Defendants First Dakota Title Limited Partnership

(“First Dakota”), Community Title, LLC (“Community Title”), Dennis C. Anderson,
Shirley A. Thoelke and Dean Hoag, Jr.’s (collectively, “Defendants”) “Motion for
Summary Judgment” (“Motion”) (docket no. 23).
II. RELEVANT PROCEDURAL HISTORY
On November 10, 2016, Plaintiff Pamela J. Mahler filed a Complaint (docket no.
1) against Defendants. In Count I of the Complaint, Mahler alleges that Defendants
violated her rights under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C.
§ 2000e-2, and the Iowa Civil Rights Act (“ICRA”), Iowa Code § 216.6, by “requir[ing]
Mahler to work in a hostile and pervasive atmosphere of discrimination and harassment
due to retaliation for engaging in protected activity, and due to sex.” Complaint ¶ 57. In
Count II of the Complaint, Mahler alleges that Defendants retaliated against her in
violation of Title VII and the ICRA. Id. ¶¶ 61-62. On January 13, 2017, Defendants filed
2

an Answer (docket no. 12) denying liability and asserting several affirmative defenses.
On November 13, 2017, Defendants filed the Motion. On December 15, 2017,
Mahler filed a Resistance (docket no. 26). On December 22, 2017, Defendants filed a
Reply (docket no. 27). No party has requested oral argument and the court finds that oral
argument is unnecessary. The matter is fully submitted and ready for decision.
III. SUBJECT MATTER JURISDICTION
The court has original jurisdiction of the Title VII claims because they arise under
the Civil Rights Act of 1964. See 28 U.S.C. § 1331 (“The district courts shall have
original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of
the United States.”). The district court has supplemental jurisdiction over the state law
claims because they are so related to the claims within the court’s original jurisdiction that
they form part of the same case or controversy. See 28 U.S.C. § 1367(a) (“[T]he district
courts shall have supplemental jurisdiction over all other claims that are so related to
claims in the action within such original jurisdiction that they form part of the same case
or controversy . . . .”). In other words, “the federal-law claims and state-law claims in
the case ‘derive from a common nucleus of operative fact’ and are ‘such that [a plaintiff]
would ordinarily be expected to try them all in one judicial proceeding.’” Kan. Pub.
Emps. Ret. Sys. v. Reimer & Koger Assocs., Inc., 77 F.3d 1063, 1067 (8th Cir. 1996)
(second alteration in original) (quotation marks omitted) (quoting Carnegie-Mellon Univ.
v. Cohill, 484 U.S. 343, 349 (1988)).
IV. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). “Summary judgment is proper ‘if the pleadings, the discovery and
disclosure materials on file, and any affidavits show’” an absence of a genuine dispute as
to a material fact. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011)

3

(en banc) (quoting Fed. R. Civ. P. 56(c)(2)). “A dispute is genuine if the evidence is such
that it could cause a reasonable jury to return a verdict for either party; a fact is material
if its resolution affects the outcome of the case.” Amini v. City of Minneapolis, 643 F.3d
1068, 1074 (8th Cir. 2011) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
252 (1986)). “The movant ‘bears the initial responsibility of informing the district court
of the basis for its motion,’ and must identify ‘those portions of [the record] . . . which it
believes demonstrate the absence of a genuine issue of material fact.’” Torgerson, 643
F.3d at 1042 (alterations in original) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986)). Once the movant has done so, “the nonmovant must respond by submitting
evidentiary materials that set out ‘specific facts showing that there is a genuine issue for
trial.’” Id. (quoting Celotex Corp., 477 U.S. at 324).
On a motion for summary judgment, the court must view the facts “in the light
most favorable to the nonmoving party.” Id. (quoting Ricci v. DeStefano, 557 U.S. 557,
586 (2009)). “Where the record taken as a whole could not lead a rational trier of fact to
find for the nonmoving party, there is no genuine issue for trial,” and summary judgment
is appropriate. Ricci, 557 U.S. at 586 (quoting Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986)). “The nonmovant ‘must do more than simply
show that there is some metaphysical doubt as to the material facts’ . . . .” Torgerson, 643
F.3d at 1042 (quoting Matsushita, 475 U.S. at 586). Instead, “[t]o survive a motion for
summary judgment, the nonmoving party must substantiate [her] allegations with sufficient
probative evidence [that] would permit a finding in [her] favor based on more than mere
speculation, conjecture, or fantasy.” Barber v. C1 Truck Driver Training, LLC, 656 F.3d
782, 801 (8th Cir. 2011) (second alteration in original) (quoting Putman v. Unity Health
Sys., 348 F.3d 732, 733-34 (8th Cir. 2003)). Mere “self-serving allegations and denials
are insufficient to create a genuine issue of material fact.” Anuforo v. Comm’r of Internal
Revenue, 614 F.3d 799, 807 (8th Cir. 2010).

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V. RELEVANT FACTUAL BACKGROUND
Viewing the evidence in the light most favorable to the nonmoving party, and
affording her all reasonable inferences, the uncontested material facts are as follows.
A. The Parties
Mahler is a resident of South Dakota and a former employee of Community Title.
Complaint ¶¶ 3-4. Community Title is a South Dakota limited liability company licensed
to do business in the State of Iowa. Id. ¶ 7. First Dakota and D. Hoag, LLC (“D. Hoag”)
are the sole members and owners of Community Title.

Defendants’ Statement of

Undisputed Facts (docket no. 23-2) ¶ 4. As such, First Dakota and D. Hoag operate
Community Title, and hire and manage its employees. Appendix in Support of Motion
(docket no. 23-3) at 12. First Dakota is a limited partnership based in Sioux Falls, South
Dakota. Defendants’ Statement of Undisputed Facts ¶ 1. Anderson is a resident of Sioux
Falls, South Dakota, and is the chief executive officer of First Dakota. Complaint
¶¶ 10,11. Hoag is a resident of West Des Moines, Iowa. Id. ¶ 15. Hoag is the chief
operating officer of Community Title and owns D. Hoag. Defendants’ Statement of
Undisputed Facts ¶¶ 14-15. Thoelke is a resident of Dell Rapids, South Dakota, and is
the chief technology officer of First Dakota. Complaint ¶¶ 13-14.
B. Mahler’s Employment
The Title Resource Network (“TRN”) is a tag line created by an advertising
company designed to group First Dakota, Community Title and their subsidiaries under
a joint title. Defendants’ Statement of Undisputed Facts ¶ 6. Sedgwick Brennen Abstract
Company (“Sedgwick Brennen”), which is located in Sioux City, Iowa, falls under the
TRN umbrella. Id. ¶¶ 6, 18; Plaintiff’s Statement of Additional Facts (docket no. 26-3)
¶ 1.
On August 15, 2012, Mahler was hired by Community Title to be the Vice
President of Sedgwick Brennen. Plaintiff’s Statement of Additional Facts ¶ 1. At all

5

relevant times, Mahler was an employee of Community Title under 42 U.S.C. § 2000(e)
and Iowa Code § 216, and Community Title was an employer under 42 U.S.C. § 2000(e)
and Iowa Code § 216. Complaint ¶ 21. At all relevant times, Anderson was Mahler’s
direct supervisor. Defendants’ Statement of Undisputed Facts ¶ 5. In October 2013,
Mahler was promoted to Regional President of Northwest Iowa. Id. ¶ 21. As Regional
President, Mahler was responsible for overseeing eight different businesses under the TRN
umbrella, including the vice presidents of those businesses. Id. ¶ 24.
1.

2014 protected activities

In late 2013 or early 2014, Mahler reported to Thoelke and Anderson that Tom
Underwood, one of the vice presidents under her supervision, was making demeaning and
degrading comments to women in his office. Id. ¶ 69. In March 2014, Mahler reported
to Anderson what she considered to be a complaint of discrimination or harassment,
distinct from her prior report, on behalf of Charity Archer, a vice president under her
supervision. Id. ¶¶ 70-71. Anderson subsequently resolved this issue. Id. ¶ 72. In April
2014, Mahler reported a sexual harassment complaint to Human Resources Director Clay
Rees on behalf of a staff member. Id. ¶ 73. The staff member was being subjected to
sexually harassing comments from a colleague. Id. ¶ 74. Following the complaint, the
issue was resolved. Id. ¶¶ 75-76.
2.

Mahler’s performance

In approximately April or May 2014, Anderson informed all staff “that [t]he
[r]egional [p]residents were to be at 50,000 [feet] looking down over their regions and not
involved in the day to day work.” Id. ¶ 26; Appendix in Support of Resistance1 at 26-27.
Anderson further stated “[t]hat the staff needed to step up and manage their offices so that
1

Mahler has filed her Appendix in Support of Resistance in six separate,
consecutively paginated parts (docket nos. 26-4, 26-5, 26-6, 26-7, 26-8, 26-9). In this
Order, the court shall refer to such consecutive pagination when citing the Appendix in
Support of Resistance.
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the [r]egional [p]residents could be visionaries and at 50,000 feet.” Defendants’ Statement
of Undisputed Facts ¶ 26; Appendix in Support of Resistance at 26-27.
At some point in 2014, Archer contacted Thoelke to inquire about having Mahler
moved out of the Sedgwick Brennan office where they both officed.

Defendants’

Statement of Undisputed Facts ¶ 30. Archer believed that Mahler was micromanaging the
employees that Archer was supposed to supervise and that Mahler was overly involved in
the office’s day-to-day activities. Appendix in Support of Resistance at 133. Archer asked
that Mahler’s office be located elsewhere. Defendants’ Statement of Undisputed Facts
¶ 30; Plaintiff’s Response to Statement of Undisputed Facts ¶ 30. By the end of 2014,
Mahler was moved from the Sedgwick Brennan office to the TRN Settlement Services
office. Defendants’ Statement of Undisputed Facts ¶ 27.
On February 13, 2015, Anderson sent Mahler an email with an off-color joke and
stated, “Hopefully the following will not offend you.” Appendix in Support of Motion at
157-61. Mahler responded, “No offense taken and thank you I did get a good laugh out
of it.” Id. at 157.
That same month, staff at the TRN Settlement Services office requested a meeting
with Rees. Defendants’ Statement of Undisputed Facts ¶ 33; Appendix in Support of
Motion at 137. The staff stated that “[t]hey did not like the way [Mahler] managed the
office,” “said that she micromanaged them, was always in their stuff” and “they felt they
[could not] do anything.”2 Appendix in Support of Motion at 139. Rees provided this
information to Anderson. Defendants’ Statement of Undisputed Facts ¶ 36.
On approximately March 5, 2015, Mahler had a meeting with Anderson where he
told her that he did not want her handling day-to-day business and told her “to be at 50,000
2

Mahler denies this factual finding, contending that “[n]o one ever told [her] that
she was micromanaging staff.” Plaintiffs’ Response to Statement of Undisputed Facts
¶ 30. That Mahler was not aware that staff perceived her to be micromanaging does not
create a factual dispute.
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feet.” Appendix in Support of Motion at 122. In late March 2015, Mahler hired two
individuals after Anderson had only authorized her to hire one.

See id. at 29-30;

Defendants’ Statement of Undisputed Facts ¶¶ 39-41.
In April 2015, Mahler became involved with an issue regarding Union County
Abstract and the Union County Register of Deeds. Defendants’ Statement of Undisputed
Facts ¶ 42.

At that time, Union County was in the region overseen by Bobbi Jo

Dondelinger, the Regional President of Southeast South Dakota. Id. ¶ 43. Mahler
contacted the Union County Register of Deeds directly, rather than contacting
Dondelinger. Id. ¶ 46. Dondelinger subsequently reported this issue to Anderson. Id.
¶ 48. Anderson believed that Mahler had “inserted herself,” created “a much larger issue
than it needed to be” and that Mahler should have let Dondelinger address the situation.
Appendix in Support of Motion at 26. On April 21, 2015, Anderson sent an email to
Thoelke and Dondelinger stating,
After my conversation with [Dondelinger] today, it is possible
that [Mahler] may cause more problems than we will want to
deal with. While I do not expect a major catastrophe to occur
before I return on May 4th, I want each of you to know that
you have my confidence and support to handle any issue with
the Sioux City office as may be necessary, including
termination.
Appendix in Support of Motion at 149.
3.

2015 protected activities

Between May 18, 2015, and May 22, 2015, Archer contacted Mahler to report
alleged sexual harassment by Aaron Hansen, a vice president under Mahler’s supervision.
Defendants’ Statement of Undisputed Facts ¶ 77. Mahler reported this complaint to Rees,
who subsequently reported the complaint to Anderson. Id. ¶¶ 77-78. Mahler also
informed Anderson that Hansen was harassing women generally. Id. ¶ 80. Rees and
Thoelke looked into the complaints and Rees spoke with Hansen regarding the

8

inappropriate nature of his comments. Id. ¶¶ 81, 83. In May 2015, Mahler also reported
a complaint of age discrimination to Rees on behalf of Sandy Hall, a processor at the TRN
Settlement Services office. Id. ¶ 85.
4.

Mahler’s termination

On June 1, 2015, Anderson called Mahler to a meeting with himself and Thoelke.
Id. ¶ 53. At that meeting, Anderson addressed the chain of command with Mahler. Id.
Anderson and Thoelke instructed Mahler that going forward she should work with her
office door closed and avoid involvement with day-to-day staff issues. Id. ¶ 55.
On June 8, 2015, Mahler reported to Rees an inappropriate remark that Hansen had
made to Archer. Defendants’ Statement of Undisputed Facts ¶ 88. On June 10, 2015,
Mahler reported to Rees that Archer and Shannon Norton, another vice president, believed
that they were being compensated less than their male counterparts. Id. ¶ 90.
On June 11, 2015, Hansen instructed one of his employees to travel to the TRN
Settlement Services office to provide coverage for the day. Id. ¶ 59. The employee
reached out to Mahler, who contradicted Hansen’s instruction and told the employee that
she did not need to travel to the TRN Settlement Services office. Id. ¶¶ 60-61. On June
15, 2015, Anderson terminated Mahler. Id. ¶ 62. Mahler was replaced by Dondelinger,
a woman, as Regional President of Northwest Iowa. Id. ¶ 68.
VI. ANALYSIS
The Complaint, while captioned as two counts, actually alleges three distinct claims.
First, Mahler alleges that she was subjected to a hostile work environment in retaliation
for engaging in a protected activity and due to her sex. Complaint ¶ 57. Second, Mahler
alleges that she was discriminated against in retaliation for engaging in a protected activity
and due to her sex. Id. Third, Mahler alleges that she was retaliated against for reporting
both discrimination and a hostile work environment. Id. ¶¶ 61-62. The court shall address
each claim in turn.

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A. Count I: Hostile Work Environment
Mahler alleges that she was subjected to a hostile work environment in retaliation
for engaging in a protected activity and due to her sex.
1.

Parties’ arguments

Defendants allege that they are entitled to summary judgment on Mahler’s hostile
work environment claim for two reasons. First, Defendants contend that a hostile work
environment claim must be based on a protected classification and not, as Mahler asserts,
on a protected activity. Brief in Support of Motion (docket no. 23-1) at 11-12. Second,
Defendants argue that Mahler did not personally suffer sexual harassment and, thus, she
cannot maintain a hostile work environment claim. Id. at 12-13.
Mahler argues that it is settled law that hostile work environment claims can be
based on retaliation. Brief in Support of Resistance (docket no. 26-1) at 4-5. She also
asserts that her hostile work environment claim is based on both the email that she received
from Anderson containing an off-color joke and “the larger milieu of harassment that
occurred in Defendants’ workplace.” Id. at 6.
2.

Applicable law

“Discrimination based on sex that creates a hostile working environment violates
Title VII.” Pedroza v. Cintas Corp. No. 2, 397 F.3d 1063, 1068 (8th Cir. 2005). “To
set forth a prima facie case of a hostile work environment, [a plaintiff] must demonstrate
‘(1) that [she] is a member of a protected group; (2) that she was subject to unwelcome
harassment; (3) that the harassment was based on sex; and (4) that the harassment affected
a term, condition or privilege of her employment.’” Anderson v. Family Dollar Stores of
Ark., Inc., 579 F.3d 858, 862 (8th Cir. 2009) (second alteration in original) (quoting
Henthorn v. Capitol Commc’ns, Inc., 359 F.3d 1021, 1026 (8th Cir. 2004)). “[T]o
succeed on a hostile work environment claim under Title VII, a plaintiff must show ‘that
the conduct at issue was not merely tinged with offensive sexual connotations, but actually

10

constituted “discrimination because of sex.”’” Pedroza, 397 F.3d at 1068 (alterations
omitted) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998)).
“Hostile work environment harassment occurs ‘[w]hen the workplace is permeated with
discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to
alter the conditions of the victim’s employment and create an abusive working
environment.’” Liles v. C.S. McCrossan, Inc., 851 F.3d 810, 823 (8th Cir. 2017)
(alteration in original) (quoting Jackman v. Fifth Judicial Dist. Dep’t of Corr. Servs., 728
F.3d 800, 805 (8th Cir. 2013)).

“The standard for demonstrating a hostile work

environment under Title VII is ‘demanding,’ and ‘does not prohibit all verbal or physical
harassment and it is not a general civility code for the American workplace.’” Id. (quoting
Jackman, 728 F.3d at 806). “Because the elements of a hostile work environment claim
under [the] ICRA ‘mirror’ the elements under the federal law we address the federal and
state claims together.” Sellers v. Deere & Co., 791 F.3d 938, 945 n.6 (8th Cir. 2015)
(citations omitted).
3.

Application
a.

Protected activity

Defendants contend that they are entitled to summary judgment on Mahler’s hostile
work environment claim to the extent it is based on a protected activity rather than a
protected classification. Brief in Support of Motion at 11-12. Mahler’s hostile work
environment claim is based, in part, on retaliation she allegedly suffered for reporting
harassment and discrimination purportedly suffered by other employees. Mahler relies on
Stewart v. Independent School District No. 196, 481 F.3d 1034 (8th Cir. 2007) and
Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006), to support her
argument that “it is settled law that hostile work environment claims based on retaliation
can be made.” Brief in Support of Resistance at 4-5.
Neither of these cases support Mahler’s position. Rather, in Burlington Northern,

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the United States Supreme Court “expressly held that retaliation claims under Title VII
could be based on a hostile work environment.” Stewart, 481 F.3d at 1042 (addressing
the plaintiff’s retaliation claims in light of Burlington Northern, where the plaintiff claimed
she was subjected to a hostile work environment in retaliation for filing an EEOC
complaint). In so holding, the Court “establish[ed] a standard to define the concept of a
hostile work environment for the purpose of retaliation claims under Title VII.” Id.; see
also Burlington N., 548 U.S. at 68 (concluding that, in Title VII retaliation claims, actions
are materially adverse and are actionable if the actions “well might have dissuaded a
reasonable worker from making or supporting a charge of discrimination” (quotation
marks omitted)). Simply, these cases hold that an employee can bring a retaliation claim
alleging that they were subjected to a hostile work environment for engaging in a protected
activity.
These cases do not, however, support Mahler’s argument that an employee can
bring a hostile work environment claim based on retaliation that they allegedly suffered.
As the Court explained, these provisions of Title VII “differ not only in language but in
purpose as well.” Burlington N., 548 U.S. at 63. “The substantive provision [of Title
VII] seeks to prevent injury to individuals based on who they are, i.e., their status.” Id.
at 63. Contrarily, “[t]he antiretaliation provision seeks to prevent harm to individuals
based on what they do, i.e., their conduct.” Id. Neither the purposes of Title VII nor the
cases cited by Mahler support a hostile work environment claim based on alleged
retaliation.
Further, Mahler’s argument makes clear that she is raising a retaliation claim. See
Brief in Support of Resistance at 5 (“Defendants concede that Mahler engaged in protected
activity, so the question before the [c]ourt is whether or not she [was] subjected to the
adverse employment action of a hostile work environment based on retaliation and sex.”).
Engaging in a “protected activity” and being subjected to an “adverse employment action”

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are elements of a retaliation claim, not a hostile work environment claim. See DePriest
v. Milligan, 823 F.3d 1179, 1187 (8th Cir. 2016) (enumerating the elements of a Title VII
retaliation claim). Therefore, to the extent that Mahler’s claim alleges that she was
subjected to a hostile work environment in retaliation for engaging in a protected activity,
the law does not support such a cause of action and Defendants are entitled to summary
judgment. To the extent that Mahler is raising a retaliation claim, the court shall address
her claim in section VI(D).
b.

Prima facie case

Mahler also brings a hostile work environment claim based on her sex. Defendants
argue that because Mahler did not personally suffer sexual harassment, she cannot maintain
a hostile work environment claim. Brief in Support of Motion at 12-13. Mahler contends
that her hostile work environment claim “does not rest solely on th[e] email” she received
from Anderson, but “instead, it is a part of the larger milieu of harassment that occurred
in Defendants’ workplace.” Brief in Support of Resistance at 6.
i.

Protected class

As addressed above, Mahler’s hostile work environment claim must be based on her
protected group status. Viewing the facts in the light most favorable to Mahler, she has
established that her sex makes her a member of a protected class. See Quick v. Donaldson
Co., 90 F.3d 1372, 1377 (8th Cir. 1996) (“[M]embership in a protected group . . . is
satisfied by showing that the plaintiff employee is a man or a woman.”).
ii.

Unwelcome harassment

With the exception of the email containing the off-color joke, Mahler does not
provide evidence of any other act of harassment that was directed at her. Rather, Mahler
attempts to establish her prima facie case by relying on the alleged acts of harassment to
which other employees were subjected. See Brief in Support of Resistance at 6-7.
Although Mahler acknowledges that this alleged harassment, was “not perpetrated against

13

her, individually,” she contends that “does not mean that those hostile acts which she is
aware of cannot be considered as a part of her larger hostile work environment claim.”
Id. at 7.
Eighth Circuit case law establishes that the harassment of other employees may be
relevant to a hostile work environment claim. See, e.g., Stewart v. Rise, Inc., 791 F.3d
849, 859 (8th Cir. 2015) (“[W]e have held evidence that a decisionmaker tolerated a
hostile environment can be relevant to the question of whether that decisionmaker later
terminated an employee due to a discriminatory motive.”); Watson v. CEVA Logistics
U.S., Inc., 619 F.3d 936, 943 (8th Cir. 2010) (noting “that slurs and other incidents
evidencing racial animus were directed at co-workers in the same protected group” and
concluding that “[t]his is relevant in assessing the existence of a hostile work environment,
particularly where as here, the plaintiffs were aware of this conduct”). However, Mahler
still has the burden of establishing that she herself was subject to unwelcome harassment.
See Blake v. MJ Optical, Inc., 870 F.3d 820, 827 (8th Cir. 2017) (“To prove a hostile
work environment, [the plaintiff] must show . . . she was subject to unwelcome harassment
. . . .”) (quotation marks omitted) (quoting Sellers, 791 F.3d at 945), petition for cert.
filed (U.S. Jan. 23, 2018) (No. 17-1015); Anderson, 579 F.3d at 862 (“To set forth a
prima facie case of a hostile work environment, [the plaintiff] must demonstrate . . . that
she was subjected to unwelcome harassment . . . .”) (alteration and quotation marks
omitted) (quoting Henthorn, 359 F.3d at 1026); Bainbridge v. Loffredo Gardens, Inc., 378
F.3d 756, 759 (8th Cir. 2004) (“To prevail, [the plaintiff] was required to show . . . he
was subjected to unwelcome harassment . . . .”).
In those cases in which the plaintiff introduced evidence of harassment suffered by
other employees, the plaintiff also established that he or she was personally harassed. See
Hocevar v. Purdue Frederick Co., 223 F.3d 721, 741 (8th Cir. 2000) (Gibson, J.,
concurring) (“‘We have considered harassment of employees other than the plaintiff to be

14

relevant to show pervasiveness of the hostile work environment.’ However, in the cases
in our circuit where we have considered conduct directed at others in upholding sexual
harassment claims, that conducted augmented evidence of harassment directed at the
plaintiff.” (citations and emphasis omitted)); see also Madison v. IBP, Inc., 257 F.3d 780,
793 (8th Cir. 2001) (“Here, [the plaintiff] introduced evidence that other women and
African American employees were also discriminated against and harassed.” (emphasis
added)), overruled on other grounds by Jones v. R.R. Donnelley & Sons Co., 541 U.S.
369 (2004); Howard v. Burns Bros., Inc., 149 F.3d 835, 838 (8th Cir. 1998) (considering
evidence “that [a co-employee] said and did inappropriate things to other female
employees” where the plaintiff also testified to harassment she personally experienced).
Therefore, to the extent the court may consider evidence of harassment suffered by other
employees, the court shall do so only after finding that Mahler was subjected to
harassment.
To establish harassment, Mahler need not show that the alleged harassment was
“explicitly sexual in nature” or that it had “explicit sexual overtones.” Quick, 90 F.3d at
1377. “The proper inquiry is whether [the plaintiff] indicated by her conduct that the
alleged harassment was unwelcome.” Scusa v. Nestle U.S.A. Co., 181 F.3d 958, 966 (8th
Cir. 1999) (second alteration in original) (quoting Quick, 90 F.3d at 1378); see also Beard
v. Flying J, Inc., 266 F.3d 792, 798 (8th Cir. 2001). “[T]he conduct at issue must be
‘unwelcome’ in that the plaintiff neither solicited it nor invited it and regarded the conduct
as undesirable or offensive.” Scusa, 181 F.3d at 966.
As noted above, Mahler does not dispute that the sole act of alleged harassment
perpetrated against her was the email that she received from Anderson. Brief in Support
of Resistance at 7. The email from Anderson stated, “Hopefully the following will not
offend you. You have had a rough week and may be in need of a chuckle or two.”
Appendix in Support of Motion at 158. The email included an off-color joke. Id. at 159-

15

60. Mahler responded to Anderson, “No offense taken and thank you I did get a good
laugh out of it.” Id. at 157. Mahler further stated, “Thanks for the laugh.” Id. at 158.
Nothing in Mahler’s response indicates that the email she received was unwelcome, and
she does not provide the court with any evidence to support a contrary conclusion. This
is fatal to her claim. See Kratzer v. Rockwell Collins, Inc., 398 F.3d 1040, 1047-48 (8th
Cir. 2005) (“[A]n employee’s admission that [the environment] was not abusive is fatal to
the employee’s Title VII sexual harassment claim.”). Because Mahler was not personally
subjected to unwelcome harassment, she cannot establish a prima facie case for hostile
work environment harassment.
Even assuming that Mahler could establish that the email she received was
unwelcome harassment, her claim would still fail. Although there is no “rule of law
holding that a single incident can never be sufficiently severe to be hostile-workenvironment sexual harassment,” Moring v. Ark. Dep’t of Corr., 243 F.3d 452, 456 (8th
Cir. 2001), “[h]ostile work environment claims are assessed based on the totality of the
circumstances.” O’Brien v. Dep’t of Agric., 532 F.3d 805, 809 (8th Cir. 2008). Courts
consider a variety of nondispositive factors in assessing whether a claimant has presented
evidence of a hostile work environment such as: “the frequency of the discriminating
conduct; its severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with an employee’s work
performance.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). “To constitute a
hostile work environment, the harassment must be ‘sufficiently severe or pervasive to alter
the conditions of the victim’s employment and create an abusive working environment.’”
Gordon v. Shafer Contracting Co., 469 F.3d 1191, 1195 (8th Cir. 2006) (quoting Harris,
510 U.S. at 21). Generally, “‘[m]ore than a few isolated incidents are required,’ and the
alleged harassment must be ‘so intimidating, offensive, or hostile that it poisoned the work
environment.’” Blomker v. Jewell, 831 F.3d 1051, 1057 (8th Cir. 2016) (quoting Scusa,

16

181 F.3d at 967); see also Gordon, 469 F.3d at 1195 (concluding that where a coworker
and a supervisor “made three to four racially offensive comments to [the plaintiff] and
additional sexually offensive comments to [the plaintiff]” the “limited number of offensive
comments [was] insufficient to create a hostile work environment”).
Even assuming that the email Anderson sent to Mahler was unwelcome harassment,
this single incident does not satisfy the threshold of proof required to create an objectively
hostile work environment. Compare Willis v. Henderson, 262 F.3d 801, 809 n.4 (8th Cir.
2001) (concluding that “in the present case the single incident involving the racist cartoon
did not create a hostile work environment”), with Moring, 243 F.3d at 456-57 (concluding
that there was sufficient evidence to allow a reasonable jury to find that a single incident
“was severe enough to alter the terms and conditions of [the plaintiff’s] employment”
where her supervisor “knocked on [her hotel room] door clothed only in boxer shorts,”
“repeatedly insisted that [she] ‘owed’ him for her job,” “would not leave the hotel room,
although [the plaintiff] repeatedly asked him to leave,” and “he sat on her bed, touched her
thigh and leaned in as if to kiss her”), and Breeding v. Arthur J. Gallagher & Co., 164
F.3d 1151, 1159 (8th Cir. 1999) (finding that a supervisor’s fondling of his genitals in
front of the victim and his use of lewd and sexual language was sufficiently offensive to
alter the victim’s working conditions), abrogated on other grounds by Torgerson, 164 F.3d
1151. Further, although evidence of Hansen’s alleged harassment of Archer “may be
relevant in a mine-run discriminatory termination case,” the Eighth Circuit has found that
when “the terminated employee herself was a supervisor over the alleged offenders” this
evidence is less relevant. Stewart, 791 F.3d at 859. Thus, the court finds that evidence
of harassment perpetrated by Mahler’s subordinates is of limited relevance in determining
if Mahler was subjected to a hostile work environment.
In sum, the email Mahler received from Anderson does not satisfy the required
threshold of proof to create a genuine issue of fact. Therefore, Defendants are entitled to

17

summary judgment on Mahler’s hostile work environment claim.
B. McDonnell Douglas Burden-Shifting
As to her remaining two claims, Mahler may demonstrate that she has been subject
to discrimination or retaliation in violation of Title VII by employing either direct or
indirect evidence. See Liles, 851 F.3d at 818, 821. “Direct evidence of discrimination
must show ‘a specific link between the alleged discriminatory animus and the challenged
decision, sufficient to support a finding by a reasonable fact finder that an illegitimate
criterion actually motivated the adverse employment action.’” Hutton v. Maynard, 812
F.3d 679, 683 (8th Cir. 2016) (quoting Russell v. City of Kan. City, 414 F.3d 863, 866
(8th Cir. 2005)).

Such evidence “encompasses comments or statements indicating

discriminatory intent, where those comments are made by people with decision-making
authority.” Id. If the court concludes that Mahler has not produced direct evidence of
discrimination or retaliation she must demonstrate the existence of a genuine dispute of
material fact regarding indirect evidence of discrimination or retaliation.
Courts analyzing indirect discrimination claims apply the familiar McDonnell
Douglas burden-shifting framework. See Grant v. City of Blytheville, 841 F.3d 767, 773
(8th Cir. 2016); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Under this framework, if an employee carries [her] burden of
establishing a prima facie case of discrimination, the burden
then shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action. If
the employer meets this burden of production, the employee
must then “prove beyond a preponderance of the evidence that
the legitimate reasons offered by the [employer] were not its
true reasons, but were a pretext for discrimination.”
Grant, 841 F.3d at 773 (second alteration in original) (citation omitted) (quoting Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)). “Although the ‘burden
of establishing a prima facie case . . . is not onerous,’ the plaintiff must satisfy every
element of [her] prima facie case, carrying at all times the ‘ultimate burden of proof and
18

persuasion’ to establish that the employer discriminated against [her] on an impermissible
basis.’” Id. (first alteration in original) (quoting Torgerson, 643 F.3d at 1046-47). The
same analytical framework is applicable to Mahler’s claims under the ICRA. See Van
Horn v. Best Buy Stores, L.P., 526 F.3d 1144, 1147 (8th Cir. 2008) (“In most respects,
Iowa courts have used the analytical framework used for Title VII claims, and have looked
to federal law for guidance, in deciding cases under the ICRA because the ICRA is
modeled in part on Title VII.”). The court shall address Mahler’s remaining claims
utilizing this framework.
C. Count I: Sex Discrimination
Mahler alleges that she was subjected to discrimination in retaliation for engaging
in a protected activity and due to her sex. Complaint ¶ 57. To the extent that Mahler
raises a discrimination claim based on retaliation, Defendants are entitled to summary
judgment for the reasons stated in section VI(A)(3)(a), as the law does not support such
a cause of action. The court shall address Mahler’s claim that she was discriminated
against due to her sex.
1.

Parties’ arguments

Defendants do not dispute that Mahler’s “sex made her a member of a protected
class,” that Mahler “possessed the necessary basic qualifications for her position” nor that
Mahler’s “termination was an adverse action.”

Brief in Support of Motion at 15.

However, Defendants assert that Mahler cannot satisfy her prima facie burden because she
cannot establish an inference of discrimination. Id.
2.

Applicable law

Title VII makes it unlawful “to discharge any individual, or otherwise to
discriminate against any individual with respect to [her] compensation, terms, conditions,
or privileges of employment, because of such individual’s . . . sex.” 42 U.S.C. § 2000e2(a)(1). In this way, Title VII prohibits employment discrimination based on suspect

19

classifications. To establish a prima facie case of sex discrimination, Mahler “must show
that: (1) she was a member of the protected group; (2) she was qualified to perform the
job; (3) she suffered an adverse employment action; and (4) circumstances permit an
inference of discrimination.” Bearden v. Int’l Paper Co., 529 F.3d 828, 831 (8th Cir.
2008). Because Mahler has presented no separate arguments under the ICRA, the court
shall address her state civil rights claim together with her Title VII claim. See Hannoon
v. Fawn Eng’g Corp., 324 F.3d 1041, 1046 (8th Cir. 2003).
3.

Application

Defendants assert that they are entitled to summary judgment on Mahler’s claim of
discrimination based on sex because Mahler cannot show an inference of discrimination
as required to satisfy her burden of establishing a prima facie case. See Brief in Support
of Motion at 14-16. Mahler has not alleged any direct evidence that she was terminated
as a result of her sex. Therefore, the court shall address her claim under the McDonnellDouglas burden shifting framework.
a.

Prima facie case
i.

Inference of discrimination

A plaintiff can establish an inference of discrimination
in a variety of ways, such as by showing more-favorable
treatment of similarly-situated employees who are not in a
protected class, [by showing] biased comments by a
decisionmaker or by showing pretext with evidence than an
employer failed to follow its own policies or shifted its
explanation of the employment decision.
Grant, 841 F.3d at 774 (alteration in original) (citations and quotation mark omitted); see
also Lewis v. Heartland Inns of Am., L.L.C., 591 F.3d 1033, 1040 (8th Cir. 2010) (noting
that, in a sex discrimination case, the critical inquiry is not merely whether an employer
has treated female employees differently from male employees, but whether an employer
discriminates against an employee based on his or her sex). If an employee seeks to
20

demonstrate that similarly situated employees not belonging to a protected class were
treated more favorably, the employee bears the burden of producing such employees and
must prove, by a preponderance of the evidence, that the other employees were “similarly
situated in all respects to her.” Gilmore v. AT&T, 319 F.3d 1042, 1046 (8th Cir. 2003).
“The individuals used as comparators ‘must have dealt with the same supervisor, have
been subject to the same standards, and engaged in the same conduct without any
mitigating or distinguishing circumstances.’” Id. This inquiry is a “rigorous” one. See
Palesch v. Mo. Comm’n on Human Rights, 233 F.3d 560, 568 (8th Cir. 2000) (quoting
Harvey v. Anheuser-Busch, Inc., 38 F.3d 968, 972 (8th Cir. 1994)); see also Fields v.
Shelter Mut. Ins. Co., 520 F.3d 859, 864 (8th Cir. 2008) (“The test [to determine whether
employees were similarly situated] is rigorous and requires that the other employees be
similarly situated in all relevant aspects before the plaintiff can introduce evidence
comparing herself to the other employees.”).
Here, Mahler has failed to present any facts giving rise to an inference of causation.
The Complaint merely states that “discrimination continued, leading to her termination
from employment,” Complaint ¶ 58, and the Resistance fails to point the court to any facts
that would support such an inference. Mahler does not point to any similarly situated male
employees that were treated differently.

The court recognizes that “[c]omparative

evidence is certainly not the ‘exclusive means by which a plaintiff may establish an
inference of discrimination.’” Lewis, 591 F.3d at 1040 (quoting Young v. WarnerJenkinson Co., 152 F.3d 1018, 1022 (8th Cir. 1998)). However, Mahler’s failure to
present any evidence is fatal to her claim.
Additionally, after Mahler’s termination, she was replaced as regional president by
Dondelinger, another woman, which undercuts an inference of discrimination.

See

Stewart, 791 F.3d at 858 (affirming summary judgment on a discriminatory termination
claim based on race and sex and concluding that where the plaintiff’s “predecessor as

21

branch manager, as well as her successor, were American-born African-American
women,” as was the plaintiff, there was “little support for an inference that discrimination
. . . motivated the termination”); Roach v. Vallen Safety Supply, Co., 14 F. App’x 711,
712 (8th Cir. 2001) (finding that the plaintiff did not establish a prima facie case of
discriminatory termination based on gender where “she was replaced by a female”).
“While ‘the burden of establishing a prima facie case of disparate treatment is not
onerous,’ the plaintiff must be able to produce some evidence of similarity between her and
her comparator.” Rebouche v. Deere & Co., 786 F.3d 1083, 1087-88 (8th Cir. 2015)
(alteration and citation omitted). Here, Mahler has failed to produce any evidence that
would support such a claim and the undisputed facts do not support an inference of
discrimination sufficient to meet this standard. The court finds that the Mahler has failed
to plead facts establishing a prima facie case that she was terminated due to her sex.
b.

Pretext

However, even assuming that Mahler is able to establish a prima facie case of sex
discrimination, she fails to demonstrate that her termination was pretextual. Defendants
state that Mahler was fired due to her repeated interference with staff, micromanaging,
over involvement in day-to-day operations and involvement in staffing issues despite
repeated warnings from Anderson. See Defendants’ Statement of Undisputed Facts ¶¶ 3033, 39-41. Therefore, the burden shifts back to Mahler to demonstrate the existence of a
genuine issue of material fact regarding pretext. Mahler cannot do so.
The Eighth Circuit Court of Appeals has stated:
There are at least two routes by which a plaintiff may
demonstrate a material question of fact at this final stage of the
[McDonnell Douglas] analysis. First, a plaintiff may succeed
indirectly by showing that the employer’s proffered
explanation is unworthy of credence because it has no basis in
fact. Second, a plaintiff may succeed directly by persuading
the court that a prohibited reason more likely motivated the
employer.
22

Dixon v. Pulaski Cty. Special Sch. Dist., 578 F.3d 862, 869 (8th Cir. 2009) (quoting
Wallace v. DTG Operations, Inc., 442 F.3d 1112, 1120 (8th Cir. 2006)), abrogated on
other grounds by Torgerson, 643 F.3d 1031. Mahler cannot prevail under either route.
The record is replete with evidence supporting Defendants’ position. See, e.g., Appendix
in Support of Motion at 29-30, 32, 33; Defendants’ Statement of Undisputed Facts ¶¶ 3942, 47, 59-61. Mahler has not demonstrated that Defendants’ justification for terminating
her is false. No evidence in the record directly contradicts Defendants’ stated purpose for
its actions. To the contrary, Anderson’s April 21, 2015 email authorizing Mahler’s
termination bolsters the conclusion that Mahler’s repeated interference with staff, rather
than her sex, was the reason for her termination. Mahler’s assertions that she believed that
her actions were justified or did not perceive them to be micromanaging does not created
a genuine issue of fact or establish pretext. Therefore, Mahler cannot prevail under the
first route.
Under the second route, Mahler need not necessarily disprove Defendants’ proffered
justification. Instead, she “must adduce enough admissible evidence to raise genuine doubt
as to the legitimacy of [Defendants’] motive, even if that evidence does not directly
contradict or disprove [Defendants’] articulated reasons for its actions.” Dixon, 578 F.3d
at 870 (quoting Buettner v. Arch Coal Sales Co., 216 F.3d 707, 717 (8th Cir. 2000)).
Mahler cannot do so. Mahler’s unsworn, self-serving statements and documents in the
record do not give rise to a question of fact regarding pretext. See id. at 872 (“A reason
cannot be proved to be a ‘pretext for discrimination’ unless it is shown both that the reason
was false, and that discrimination was the real reason.” (quoting Floyd v. Mo. Dep’t of
Soc. Servs., Div. of Family Servs., 188 F.3d 932, 937 (8th Cir. 1999))). Mahler’s lack
of evidence of pretext, coupled with the weak showing in her prima facie case, fails to
survive summary judgment on this issue. See Wallace, 442 F.3d at 1120 n.2 (noting that
“a strong prima facie case coupled with proof of pretext may suffice to create a triable

23

question of fact”).
Accordingly, the court shall grant the Motion with respect to Mahler’s
discrimination claim.
D. Count II: Retaliation
Mahler alleges that Defendants retaliated against her for reporting the alleged sexual
harassment and age discrimination suffered by other employees.
1.

Direct evidence

Mahler contends “that there is direct evidence of retaliation from a variety of
statements made by Defendants in the record.” Brief in Support of Resistance at 11.
Mahler specifically cites the following: (1) Anderson’s statement to Shannon Norton, a
vice president supervised by Mahler, asking Norton to give Hansen another shot, admitting
that Hansen had been inappropriate but that the matter had been handled, stating that
Mahler had “egged” Archer on to pursue the claim and that Mahler “got us all riled up
about stuff that didn’t matter”; (2) Thoelke’s statement to Archer on June 2, 2015, that
“Mahler tended to ‘embellish’”; and (3) Thoelke’s statement to Archer on June 4, 2015,
telling “Archer to keep on eye on Mahler.” Id.
“[D]irect evidence is evidence showing a specific link between the alleged
discriminatory animus and the challenged decision, sufficient to support a finding by a
reasonable fact finder that an illegitimate criterion actually motivated the adverse
employment action.” Aulick v. Skybridge Ams., Inc., 860 F.3d 613, 620 (8th Cir. 2017)
(alteration in original) (quoting Carraher v. Target Corp., 503 F.3d 714, 716 (8th Cir.
2007)). “Direct evidence provides a strong causal link between the alleged discriminatory
bias and the adverse employment decision.” Massey-Diez v. Univ. of Iowa Cmty. Med.
Servs., Inc., 826 F.3d 1149, 1160 (8th Cir. 2016) (quoting McCullough v. Univ. of Ark.
for Med. Scis., 559 F.3d 855, 861 (8th Cir. 2009)). “The bias . . . must be that of the
decision maker and must relate to the decisional process.” Id. Courts have interpreted

24

direct evidence “as ‘conduct or statements by persons involved in the decisionmaking
process that may be viewed as directly reflecting the alleged discriminatory attitude.’”
Browning v. President Riverboat Casino-Mo., Inc., 139 F.3d 631, 634 (8th Cir. 1998)
(quoting Thomas v. First Nat’l Bank, 111 F.3d 64, 66 (8th Cir. 1997)).
However,“[n]ot all comments that reflect a discriminatory attitude will support an
inference that an illegitimate criterion was a motivating factor in an employment decision.”
Id. at 635 (quoting Radabaugh v. Zip Feed Mills, Inc., 997 F.2d 444, 449 (8th Cir.
1993)).

“For example, ‘direct evidence’ does not include ‘stray remarks in the

workplace,’ ‘statements by nondecisionmakers,’ or ‘statements by decisionmakers
unrelated to the decisional process itself.’” Id. (quoting Price Waterhouse v. Hopkins, 490
U.S. 228, 277 (1989)). “Direct evidence does not include statements by decisionmakers
that are facially and contextually neutral.” Aulick, 860 F.3d at 620 (quoting Torgerson,
643 F.3d at 1045). “If a plaintiff produces direct evidence, evidence of the employer’s
motives for a termination is an issue for trial, not summary judgment.” Young-Losee v.
Graphic Packaging Int’l, Inc., 631 F.3d 909, 912 (8th Cir. 2011).
As to the first statement, there is no dispute that Anderson was Mahler’s supervisor
and that he was a decisionmaker in Mahler’s termination. See Defendants’ Statement of
Undisputed Facts ¶ 9. However, this statement was made to Norton, a vice president who
had been under Mahler’s supervision, in December 2015. See id. ¶ 24; Appendix in
Support of Resistance at 164. Mahler was terminated on June 15, 2015, and thus, this
statement was neither made in the decisionmaking context nor to someone involved in that
process. As such, the court concludes that the statements by Anderson are not direct
evidence of retaliation. See Ramlet v. E.F. Johnson Co., 507 F.3d 1149, 1153 (8th Cir.
2007) (concluding that statements were not direct evidence because, even “[a]ssuming [the
speaker] was a decisionmaker,” “[t]he comments were not related to the decisional process
. . . and both were made to employees not involved in the decisional process”); Twymon

25

v. Wells Fargo & Co., 462 F.3d 925, 934 (8th Cir. 2006) (concluding that remarks were
not direct evidence because “none of the statements . . . were related to the decisional
process itself” and “none of the statements . . . were made during the decisional process
accompanying [the employer’s] termination of [the plaintiff]”). C.f. Young-Losee, 631
F.3d at 912 (finding direct evidence that an employee “was terminated in retaliation for
filing a formal complaint of harassment” where a plant supervisor “wadded up [her]
complaint, called it ‘total bullshit,’ threw it in the garbage can, told [her] to leave, and said
he never wanted to see [her] again’”).
As to the second and third statements, Mahler admits that Anderson was the sole
decisionmaker regarding her termination. Defendants’ Statement of Undisputed Facts
¶ 63; Plaintiff’s Response to Statement of Undisputed Facts ¶ 63. Further, Mahler admits
that Thoelke had no authority to terminate her and that Thoelke had no responsibility for
the decision to terminate her.

Therefore, any statements made by Thoelke do not

constitute direct evidence of retaliation. See Schierhoff v. GlaxoSmithKline Consumer
Healthcare, L.P., 444 F.3d 961, 966 (8th Cir. 2006) (noting that “‘statements by
nondecisionmakers[]’ . . . do not constitute direct evidence” (quoting Radabaugh, 997
F.2d at 449)).
However, even assuming that Thoelke was a decisionmaker, the alleged statements
cited by Mahler do not constitute direct evidence of retaliation. If made, Thoelke’s
statements that Mahler “embellished” or her request to an employee to “keep an eye on
Mahler” require an inference that they refer to Mahler’s protected activities. Mahler does
not cite any case finding direct evidence of retaliation on similar facts. Nothing in these
statements clearly connects Defendants’ decision-making process with an illegal motive.
See Massey-Diez, 826 F.3d at 1161 (concluding that “[t]here [was] not direct evidence
imputing any alleged bias on . . . the group’s decision not to renew [the employee’s]
contract”). The court finds that the required inference compels the conclusion that neither

26

of Thoelke’s statements constitute direct evidence of discrimination. See McCullough, 559
F.3d at 861 (noting that direct evidence “most often comprises remarks by decisionmakers
that reflect, without inference, a discriminatory bias”); Erickson v. Farmland Indus., Inc.,
271 F.3d 718, 725 (8th Cir. 2001) (“Making this comment into evidence of age animus
requires an inference, and the comment therefore does not directly reflect an attitude of
discrimination based on age.”). Therefore, the court shall analyze Mahler’s retaliation
claim under the burden-shifting framework of McDonnell Douglas.
2.

Parties’ arguments

Defendants do not dispute that Mahler engaged in multiple acts of protected activity
between 2013 and 2015. Defendants also do not dispute that Mahler’s termination was an
adverse action. Therefore, the only element at issue is whether the circumstances permit
an inference of discrimination. Defendants assert that Mahler is unable to establish that
her protected activity was the reason for her termination. Brief in Support of Motion at
18-21. Mahler argues that “the evidence of temporal proximity in this case is so strong
that, in and of itself, it is sufficient for a jury to find that her termination was unlawful due
to retaliation.” Brief in Support of Resistance at 12.
3.

Applicable law

Title VII makes it unlawful for an employer “to discriminate against any individual
. . . because [she] has opposed any [unlawful employment] practice . . . or because [she]
has made a charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing” under Title VII. 42 U.S.C. § 2000e-3(a). In this way, Title VII
prohibits retaliation for engaging in protected activity related to allegations of
discrimination or sexual harassment. “To establish a prima facie case of retaliation, a
plaintiff must show that: ‘(1) she engaged in statutorily protected conduct; (2) she suffered
an adverse employment action; and (3) a causal connection exists between the two.’”
DePriest, 823 F.3d at 1187 (quoting Fiero v. CGS Sys., Inc., 759 F.3d 874, 880 (8th Cir.

27

2014)). “Further, retaliation must be the ‘but for’ cause of the adverse employment
action.” Jackman, 728 F.3d at 804; see also Blomker, 831 F.3d at 1059 (noting that “[i]t
is not enough that retaliation was a ‘substantial’ or ‘motivating’ factor in the employer’s
decision” to take the adverse employment action (quoting Vega v. Hempstead Union Free
Sch. Dist., 801 F.3d 72, 90-91 (2d Cir. 2015))).
“The ICRA similarly makes retaliatory action unlawful.” Rebouche, 786 F.3d at
1088 (8th Cir. 2015) (citing Iowa Code § 216.11(2)). The court shall analyze Mahler’s
ICRA retalation claim using the same method as the federal retaliation claims. YoungLosee, 631 F.3d at 912 (“This court analyzes ICRA retaliation claims under the ‘same
method as federal retaliation claims.’” (quoting Smith v. Allen Health Sys., 302 F.3d 827,
836 (8th Cir. 2002), abrogated on other grounds by Torgerson, 643 F.3d 1031)).
However, under the ICRA, Mahler must show that “the protected activity was a significant
factor motivating the adverse employment action.” See Haskenhoff v. Homeland Energy
Sols., LLC, 897 N.W.2d 553, 586 (Iowa 2017).
4.

Application

Defendants argue that they are entitled to summary judgment because Mahler is
unable to establish that her protected activity caused her termination. Mahler argues that
the evidence of temporal proximity is sufficient for a jury to find that her termination was
unlawful retaliation.
a.

Prima facie case
i.

Causal connection

“The timing of an adverse employment action in connection with the protected
activity ‘can sometimes establish causation for purposes of establishing a prima facie
case.’” Green v. Franklin Nat’l Bank of Minneapolis, 459 F.3d 903, 915 (8th Cir. 2006)
(quoting Sherman v. Runyon, 235 F.3d 406, 410 (8th Cir. 2000)). “As more time passes
between the protected conduct and the retaliatory act, the inference of retaliation becomes

28

weaker and requires stronger alternate evidence of causation.” Tyler v. Univ. of Ark. Bd.
of Trs., 628 F.3d 980, 986 (8th Cir. 2011). The Eighth Circuit has concluded that a
termination that occurs “two weeks from the protected activity, is close enough to establish
causation in a prima facie case.” Peterson v. Scott Cty., 406 F.3d 515, 525 (8th Cir.
2005), abrogated on other grounds by Torgerson, 643 F.3d 1031; see also Smith, 302 F.3d
at 833 (finding two-week gap “sufficient, but barely so, to establish causation”).
The court notes that the majority of Mahler’s protected activity occurred
approximately one month prior to her termination, which alone would be insufficient to
establish a prima facie case. See Smith v. Fairview Ridges Hosp., 625 F.3d 1076, 1088
(8th Cir. 2010) (finding that a one month gap is not close enough to establish a prima facie
case absent additional evidence). However, Mahler also engaged in protected activity on
June 8, 2015, and June 10, 2015. Defendants’ Statement of Undisputed Facts ¶¶ 88, 90.
The court finds that the temporal proximity between Mahler’s June 2015 activities and her
termination supports an inference of causation. Aside from this temporal proximity,
Mahler does not posit any other evidence of causation. See Bainbridge, 378 F.3d at 761
(concluding that temporal proximity of six days coupled with other evidence was sufficient
to create a jury question).
While the temporal proximity supports an inference of causation, the inference is
significantly weakened by Anderson’s April 21, 2015 email authorizing Mahler’s
termination nearly two months before Mahler’s most recent reports of alleged harassment.
See Carrington v. City of Des Moines, 481 F.3d 1046, 1051 (8th Cir. 2007) (“Evidence
of an employer’s concerns about an employee’s performance before the employee’s
protected activity undercuts a finding of causation.” (quoting Kasper v. Federated Mut.
Ins. Co., 425 F.3d 496, 504 (8th Cir. 2005))). Further, Mahler’s history of engaging in
protected activities weakens any causal connection. Over the course of her employment,
Mahler raised a number of allegations of harassment without any negative response from

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Defendants. Mahler’s later complaints, made after Defendants had concerns about her
performance, do not insulate Mahler from discipline for disrupting the workplace. See id.
(“[P]ost-hoc complaints d[o] not without more raise a retaliation bar to the proposed
discipline because ‘the anti-discrimination statutes do not insulate an employee from
discipline for violating the employer’s rules or disrupting the workplace.’” (quoting
Griffith v. City of Des Moines, 387 F.3d 733, 738 (8th Cir. 2004))). Additionally,
Mahler’s act of contradicting Hansen’s instruction to his staff occurred a mere four days
prior to her termination. See Defendants’ Statement of Undisputed Facts ¶¶ 59-61. Thus,
although the proximity of two weeks may be sufficient to support the inference of causation
in some cases, the court finds that the countervailing evidence, and lack of supporting
evidence, prevents timing alone from creating an inference of retaliation in this case.
2.

Pretext

Even if Mahler could establish a prima facie case, her claim would still fail because
she cannot demonstrate that Defendants’ legitimate, non-discriminatory reason for her
termination—her failure “to stop micromanaging her staff and interfering in the day-to-day
work of the offices she managed”—was a pretext for retaliation. Brief in Support of
Motion at 8. Temporal “proximity alone is insufficient to establish pretext.” Gibson v.
Geithner, 776 F.3d 536, 541 (8th Cir. 2015). “Rather, [courts] evaluate ‘the timing of the
discharge . . . in light of other evidence, or lack of other evidence, in the record.’” Id.
(second alteration in original) (quoting Sherman, 235 F.3d at 410). “An inference of a
causal connection between a charge of discrimination and termination can be drawn from
the timing of the two events, but in general more than a temporal connection is required
to present a genuine factual issue on retaliation.” Green, 459 F.3d at 915 (quoting
Peterson, 406 F.3d at 524). Accordingly, even assuming Mahler has established a prima
facie case of retaliation, she fails to demonstrate the existence of a genuine dispute
regarding pretext.

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In order to succeed on her claim, Mahler “must both discredit [D]efendants’
asserted reasons for [her] termination and show that the circumstances permit drawing a
reasonable inference that the real reason for [her] termination was retaliation.” Hutton,
812 F.3d at 684. This she cannot do. Mahler has advanced no evidence, save her own
self-serving and unsworn statements and documents and the temporal proximity of the
events, from which the court could draw an inference that the real reason for her
termination was retaliation. As discussed above, the evidence in the record supports
Defendants’ proffered reason for Mahler’s termination. See, e.g., Appendix in Support
of Motion at 29-30, 32-33; Defendants’ Statement of Undisputed Facts ¶¶ 39-42, 47, 5961. Further, Mahler had a history of raising concerns regarding alleged harassment
without any adverse action taken against her over the course of her employment. See
generally Defendants’ Statement of Undisputed Facts ¶¶ 69-93. That Mahler believed her
conduct to be reasonable does not render Defendants’ proffered reason pretextual. For the
same reasons that Mahler fails to demonstrate an issue of fact regarding pretext in her
discrimination claim, none of the arguments she makes in support of her retaliation claim
can draw a fair inference of causation between her protected activities and her termination.
In short, even if the evidence presented by Mahler was sufficient to establish a prima facie
case of retaliation, see Green, 459 F.3d at 915, she has not produced any additional
evidence to support pretext other than temporal proximity, see Gibson, 776 F.3d at 542.
Accordingly, the court shall grant the Motion.
VII. CONCLUSION
For the foregoing reasons, it is hereby ORDERED:
(1)

Defendants’ Motion for Summary Judgment (docket no. 23) is GRANTED;

(2)

The Clerk of Court is DIRECTED to enter judgment in favor of Defendants
and against Plaintiff Pamela J. Mahler; and

(3)

The Clerk of Court is DIRECTED to terminate all outstanding motions.

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The Final Pretrial Conference is CANCELED and the trial date is VACATED.
IT IS SO ORDERED.
DATED this 28th day of February, 2018.

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