Hernandez v. John Morrell & Co et al
Filing
35
OPINION and Order granting 28 Motion for Summary Judgment. Judgment in favor of the defendants shall enter accordingly. Signed by Judge Mark W Bennett on 8/27/2018. (des)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
NORA HERNANDEZ,
No. C 17-4033-MWB
Plaintiff,
vs.
JOHN MORRELL & CO., d/b/a
CURLY’S FOODS, and SMITHFIELD
FOODS, INC.,
OPINION AND ORDER
REGARDING DEFENDANTS’
MOTION FOR SUMMARY
JUDGMENT
Defendants.
___________________________
TABLE OF CONTENTS
I.
INTRODUCTION........................................................................... 2
A.
Factual Background ............................................................... 2
1.
The parties ................................................................... 2
2.
The alleged safety violations ............................................. 3
3.
The termination ............................................................. 6
B.
Procedural Background ........................................................... 7
1.
The lawsuit and the removal ............................................. 7
2.
The summary judgment motion.......................................... 7
C.
Arguments Of The Parties ........................................................ 8
1.
The defendants’ opening argument ..................................... 8
2.
Hernandez’s response ..................................................... 9
3.
The defendants’ reply.................................................... 11
II.
LEGAL ANALYSIS ...................................................................... 12
A.
Applicable Standards ............................................................. 12
1.
Summary judgment standards ......................................... 12
2.
Standards for retaliatory discharge claims .......................... 14
B.
Application Of The Standards .................................................. 16
III.
CONCLUSION ............................................................................ 22
An employee at a meat-processing plant claims that she was terminated, in
violation of Iowa public policy, in retaliation for making continuing claims for worker’s
compensation benefits for a shoulder injury. On a motion for summary judgment,
however, her employer and its corporate parent contend that the undisputed evidence
shows that the employee was terminated for her second safety violation in just four
months. I must decide whether the employee has generated a jury question on the alleged
retaliatory motive for her termination.
I.
A.
INTRODUCTION
Factual Background
This statement of the factual background does not necessarily set out all the parties’
factual allegations in support of and resistance to the defendants’ Motion For Summary
Judgment. Rather, it focuses on the key facts to put in context the parties’ disputes.
Unless otherwise indicated, the following facts are undisputed.
1.
The parties
Plaintiff Nora Hernandez was employed as a production worker at the Curly’s
Foods pork processing plant in Sioux City, Iowa, from August 2000 until April 24, 2015.
Defendant John Morrell & Co., which is a wholly-owned subsidiary of defendant
Smithfield Foods, Inc., does business as Curly’s Foods and owns and operates the pork
processing plant where Hernandez was employed. That plant employed approximately
620 people at the time of Hernandez’s termination. There was no union at the plant.
For the last seven years of her employment, Hernandez operated a band saw,
which she used to cut slabs of pork ribs to customer specifications. Prior to January
2015, Hernandez had never been disciplined for any unsafe conduct at work. Hernandez
2
was counseled in April 2013, however, that her supervisors were concerned that she
could not keep up with the expected pace of production for a saw operator, owing to the
manner in which she performed her job.
The defendants contend that this fact is
immaterial, except to the extent that the memorialization of the counseling stresses that
Hernandez was not being asked to go faster, because doing so would be a safety risk, and
it shows that the defendants were devoting time to helping Hernandez produce acceptable
product at an efficient standard.
In December 2013, Hernandez injured her right shoulder and left knee when she
slipped on the stairs at work. She was initially seen by a nurse practitioner for that injury,
but she was later referred to an orthopedic surgeon. The orthopedist treated Hernandez
conservatively from March 2014, through October 2014, during which time, Hernandez
was placed on light duty.
The defendants contend that light duty assignments for
employees with work-related injuries were commonplace, but Hernandez admits only that
she was on light duty at various times and that she was aware of other employees who
had been on light duty. In October 2014, Hernandez’s treating physician released her to
full duty. Hernandez asserts that, between October 14, 2014, and January 15, 2015, she
continued to experience pain in her right shoulder while she was performing her regular
job, but the defendants contend that this fact is immaterial, because Hernandez had been
released to full duty, and her supervisors had no reason to believe that she could not fully
perform her duties.
2.
The alleged safety violations
In January 2015, Hernandez cut her right middle finger on the band saw that she
was operating. The defendants assert that, based on an investigation conducted at the
workplace, they determined that Hernandez reached around to the back of the saw and
attempted to retrieve a stuck piece of meat, instead of stopping the machine and using a
meat hook to release the piece of meat that was stuck, as required by proper procedures.
3
Hernandez admits that this was the defendants’ determination, but she denies that the
determination was correct or that it was based on an investigation. Rather, she contends
that she did not have time to shut off her saw before her hand was pulled into the blade
of the saw, which the defendants dispute. Hernandez received medical treatment for her
cut and was placed on light duty for several weeks as a result of this injury. In addition,
because the defendants determined that Hernandez’s injury resulted from her failure to
follow safety protocols, the defendants gave Hernandez a three-day suspension.
Hernandez disputed the imposition of any disciplinary action for this incident at the time.
The defendants contend that the safety violation in January 2015 was serious enough to
warrant termination, but that they chose not to take that step at that time. Hernandez
admits only that she was not terminated at that time. Hernandez asserts that, under the
Curly’s Foods policy, following imposition of a suspension due to the January 2015
incident, she was barred from seeking to transfer into another job for a year. The
defendants contend that this fact is immaterial, because Hernandez never indicated any
interest in transferring to another job. Hernandez returned to work on light duty after
this incident, but she was working without restrictions from March 20, 2015, until April
20, 2015.
Hernandez contends that, from March 20 to March 31, 2015, she continued to
experience shoulder pain while working at her regular job as a saw operator, but the
defendants contend that this fact is immaterial, because the defendants had no reason to
believe that Hernandez could not fully perform her job and because there is no evidence
that Hernandez told her supervisors that she was continuing to experience pain. In March
2015, the defendants’ worker’s compensation carrier sent Hernandez to another
orthopedic surgeon to get a second opinion about her ongoing shoulder pain. The second
surgeon disagreed with the conservative treatment that Hernandez had been receiving
thus far and, instead, recommended that she have surgery on her shoulder, which would
4
be scheduled “over the next couple of weeks.” That information was transmitted to the
nurse at the plant on or about March 31, 2015, after Hernandez returned from her
consultation with the physician.
Kathy Peterson, who was the Human Resources
Manager for the Curly’s Foods plant, acknowledges that, in the ordinary course of
business, she would have learned from the nurse about the fact that Hernandez’s doctor
had recommended that Hernandez undergo surgery, but Ms. Peterson testified that she
did not recall being told that surgery had been recommended for Hernandez.
Ms. Peterson was not responsible for securing approval for that surgery or managing the
logistics associated with the doctor’s recommendation. Hernandez continued to work at
her regular job after the recommendation that she have surgery, although she contends
that she went to the plant nurse’s office on an almost daily basis to apply ice to her
shoulder. The defendants assert that they understood that Hernandez had been released
to perform her regular job at this time and that she did not tell her supervisors that she
could not do it.
On April 20, 2015, Hernandez became frustrated for reasons that she states
included worsening pain in her shoulder; the speed of the line, which had not changed
despite her complaint about it to a lead employee; and the conduct of a new employee,
Ana Garcia, who was, in Hernandez’s view, not properly laying out slabs of ribs on the
conveyor belt. Hernandez believed that Ms. Garcia was allowing some of the slabs to
double up, instead of laying them out separately. The protocol for situations in which
slabs are doubling up is for the band saw operator to set the extra slab of ribs on the
operator’s table, to be returned to the vat and re-placed on the conveyor belt. On this
day, however, Hernandez admits that she picked up a slab of ribs and threw it back across
the conveyor belt toward the vat. The parties dispute whether a slab of ribs weighs
between eight and eleven pounds or between two and three pounds and how close the
slab thrown by Hernandez came to any other employee, including Ms. Garcia. The
5
defendants assert that throwing the slab of ribs around saw operators, other employees,
and equipment was unsafe. Hernandez disputes whether tossing the slab of ribs was
unsafe conduct, but she testified, “I don’t know why I did this” and “I got frustrated.”
Ms. Garcia filed a complaint with Human Resources in which she said that she felt
threatened by Hernandez’s conduct.
3.
The termination
Ms. Peterson conducted an investigation into Ms. Garcia’s complaint about
Hernandez throwing the slab of ribs. All supervisors confirmed that Hernandez had been
trained in, and was fully aware of, the procedures for separating out excess slabs of ribs
that came down the conveyor belt. The defendants contend that there were no extenuating
circumstances for this incident, which followed Hernandez’s prior safety violation by just
a few months. Based on the two safety violations, and with input from Senior Human
Resources Directors and Hernandez’s managers, Ms. Peterson made the decision to
terminate Hernandez’s employment on April 24, 2015. The defendants contend that no
one involved in the termination decision, other than Ms. Peterson, could have known
about the doctor’s recommendation that Hernandez have surgery, and that no one
involved gave any consideration to Hernandez’s worker’s compensation claims or the
status of her injury, but Hernandez contends that Ms. Peterson knew about the surgery
recommendation at the time of the termination.
Hernandez alleges that, after her termination, the defendants denied her worker’s
compensation healing period benefits based on their claim that she had engaged in gross
misconduct, characterized as “work-place violence,” but an arbitration decision by the
Iowa Worker’s Compensation Court rejected that argument. The defendants contend this
allegation is immaterial, because the decision to deny worker’s compensation healing
period benefits was made by ESIS, its worker’s compensation administrator, not by any
of the defendants; the defendants took no such position before the Iowa Worker’s
6
Compensation Court, although ESIS did; and the arbitration decision rejected the
argument, but held that ESIS’s position was, nevertheless, “fairly debatable.” Also, it
is undisputed that, after her termination, Hernandez received further treatment authorized
by the defendants’ worker’s compensation insurance carrier, including shoulder surgery
on September 23, 2015.
B.
1.
Procedural Background
The lawsuit and the removal
On April 18, 2017, Hernandez filed suit in the Iowa District Court for Woodbury
County against John Morrell, doing business as Curly’s Foods, and Smithfield Foods.
In her state court Petition, Hernandez asserted a single claim of retaliatory discharge in
violation of public policy, based on allegations that she was terminated for suffering a
workplace injury, for making a claim for worker’s compensation benefits, and/or for
requesting medical care. Hernandez seeks compensatory and punitive damages, plus
interest, costs, and such other relief as may be appropriate. The defendants removed
the action to this federal court on May 11, 2017, on the basis of diversity jurisdiction,
pursuant to 28 U.S.C. §§ 1332 and 1441(b). On May 22, 2017, the defendants filed a
joint Answer denying Hernandez’s claim and asserting several affirmative defenses. A
jury trial in this matter is currently set to begin on December 10, 2018.
2.
The summary judgment motion
On June 20, 2018, the defendants filed the Motion For Summary Judgment now
before me. Hernandez filed her Resistance on July 10, 2018, and the defendants filed
their Reply on July 17, 2018. On July 26, 2018, the defendants were granted leave to
file their Second Supplemental Appendix In Support Of Summary Judgment for the sole
purpose of providing a complete/corrected version of a hearing transcript.
defendants’ Second Supplemental Appendix was filed on July 27, 2018.
7
The
No party requested oral arguments on the defendants’ Motion For Summary
Judgment in the manner required by local rules. Moreover, I have found the parties’
written submissions to be adequate for the disposition of this motion. Therefore, the
defendants’ Motion For Summary Judgment is deemed fully submitted on the parties’
written submissions.
C.
1.
Arguments Of The Parties
The defendants’ opening argument
In support of their Motion For Summary Judgment, the defendants argue that, to
prevail, Hernandez must prove that a worker’s compensation claim was the employer’s
“specific motivation” for the adverse action. Here, however, the defendants argue that
there is no genuine issue of material fact that Hernandez was fired for a legitimate reason,
which was a second safety violation within just a few months. The defendants argue that
the record includes no evidence that they thought of Hernandez’s worker’s compensation
claims as anything other than routine and that there is no evidence of comments or conduct
on the part of managers that might suggest or reveal a retaliatory motive. They argue
that Curly’s Foods is a large pork processing operation in which work-related injuries
are not uncommon; that there are comprehensive procedures and protocols in place for
treating such injuries through the company’s worker’s compensation insurer; and that, if
Curly’s Foods retaliated against every worker who was treated for work-related injuries,
it would have a very small workforce.
In contrast to the lack of evidence of any retaliatory motive, the defendants argue
that the record contains substantial, undisputed evidence that Hernandez violated two
important safety rules within a four-month period.
They argue that Hernandez
intentionally violated a safety rule on the second occasion after being told that another
safety violation would result in her termination.
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The defendants contend that the
applicable case law supports the principle that employers are—and must be—permitted to
enforce legitimate work rules, and that worker’s compensation claims do not insulate
employees from repercussions for violations of such rules. Indeed, the defendants argue
that Hernandez rests her entire claim on the supposition that, once it became known that
she needed surgery, her employer decided to get rid of her, but her supposition is not
competent evidence and does not generate a genuine issue of material fact.
The
defendants argue that temporal proximity alone between an injury or claim and adverse
employment action does not establish a retaliatory motive, and there is simply no
evidence, here, that anyone took into account Hernandez’s injury or worker’s
compensation claims history in deciding to terminate her. The defendants argue that,
even if retaliation is one factor, but not the determinative factor, in the employer’s
decision to take adverse employment action, there is no liability for a discharge in
violation of public policy under Iowa law.
2.
Hernandez’s response
In response, Hernandez argues that there is no dispute that she sustained a workrelated injury to her right shoulder in December 2013 and another work-related injury to
her finger in January 2015; no dispute that she pursued worker’s compensation benefits
for both injuries; and no dispute that she was fired on April 24, 2015. She does argue,
however, that there are genuine issues of material fact concerning the cause of her
discharge, which preclude summary judgment. She argues that those factual disputes
arise, first, because the timing of her termination is suspect. She points out that her
termination came just four weeks after she returned to full duties after a period of light
duty, and just three weeks after she returned to the doctor with continuing complaints
about her shoulder, the doctor recommended shoulder surgery, and she informed the
plant nurse that she needed surgery, which the plant nurse passed on to Ms. Peterson.
Thus, Hernandez contends, at the time of her termination, the defendants were aware of
9
the likelihood that she would need additional time off and require payment of healing
period benefits. She also points out that the discharge came just six months after the
resumption of her regular duties following roughly eleven months on light duty from her
shoulder injury.
Second, Hernandez contends that, almost immediately after she cut her finger in
January 2015, the defendants chose to impose a disciplinary suspension on her for an
alleged safety violation. She argues that the timing of this action also suggests that it was
imposed for sustaining a work-related injury and invoking worker’s compensation
protection, particularly where she contends that she did not fail to follow safety
procedures, but simply did not have time to shut down the saw before she was injured.
Hernandez contends that nothing in the disciplinary policies for Curly’s Foods mandated
a suspension for a first safety rule violation, but the defendants imposed such a suspension
despite her prior spotless disciplinary record over fourteen years of employment. She
argues that a jury could find that the defendants used the January discipline to set her up
for discharge (or to force her to quit) in order to reduce its worker’s compensation
obligations toward her for the following reasons: the defendants knew she was having
problems keeping up with the pace of production on her job on the band saw even before
her injuries in December 2013 and January 2015; that she was continuing to have
significant right shoulder pain; that she would not be able to bid out of her band saw job
into another job that was less painful or difficult for her for a year after the disciplinary
action in January 2015; and that discharging her (or forcing her to quit) would relieve
the defendants of continuing worker’s compensation obligations.
Hernandez argues that the circumstances of the April 20, 2015, incident are also
suggestive of retaliatory intent. This is so, she argues, because she had made complaints
to her supervisors prior to the incident about the pace of the line and the problem that
day with feeding product onto the line, but to no avail; her shoulder was causing her
10
pain; her shoulder surgery had been recommended, but not yet scheduled; and she tossed
a piece of meat toward the vat it came from in frustration; but the defendants refused to
consider any of those mitigating factors. Instead, she argues, the defendants concluded
that she had committed another alleged intentional safety violation and, despite no
requirement for discharge for multiple safety violations in the written policies for Curly’s
Foods and the fact that no one was harmed in the incident, the defendants fired her. She
also contends that, prior to this incident, the plant nurse had told her that she had
forwarded the recommendation that she have surgery to Ms. Peterson, but Ms. Peterson
had not yet given approval.
Finally, Hernandez argues that it is relevant that the defendants argued to the Iowa
Worker’s Compensation Court that they were entitled to cut off her healing period
benefits, after her termination, because she had been terminated for “gross misconduct.”
3.
The defendants’ reply
In their Reply, the defendants, first, challenge Hernandez’s claim that the plant
nurse told her that she was waiting to hear from Ms. Peterson about approval of the
recommendation for Hernandez’s surgery. The defendants contend that this statement
from the nurse to Hernandez, is hearsay, that it has never been reported before, that it
contradicts the nurse’s contemporaneous notes, and that the nurse denies making it.
Moreover, the defendants contend that it is nonsense, because neither Ms. Peterson nor
any other employee at Curly’s Foods had the authority to approve the surgery. Rather,
they argue, only the worker’s compensation administrator, ESIS, had that authority.
The defendants also argue that Hernandez’s opinions about the validity of the
determinations that she violated safety rules on two occasions are irrelevant, because the
evidence establishes that the defendants had a good-faith belief that she had engaged in
unsafe practices and discharged her on that basis. The defendants argue that the court
cannot sit as a “super personnel department” to second-guess legitimate business
11
decisions, in the absence of competent evidence of pretext, but there is no such evidence,
here. The defendants also contend that Hernandez’s theory that she was “set up” for
discharge is not supported by any competent evidence. They point out that, when they
discovered that she was having trouble keeping up, even before her December 2013
injury, they committed to supporting and training her, not putting her at risk of injury or
discharge. They also point out that there is no record evidence that Hernandez ever told
any supervisor that she was in pain or needed an accommodation for her pain or other
accommodation, such as a transfer to a different job. They also reiterate that the record
shows that many employees at Curly’s Foods have been treated for work-related injuries
and returned to work.
II.
A.
1.
LEGAL ANALYSIS
Applicable Standards
Summary judgment standards
Summary judgment is only appropriate when “the pleadings, depositions, answers
to interrogatories, and admissions on file, together with affidavits, if any, show that there
is no genuine issue of material fact and that the moving party is entitled to a judgment as
a matter of law.” FED. R. CIV. P. 56(c) (emphasis added); see Woods v. DaimlerChrysler
Corp., 409 F.3d 984, 990 (8th Cir. 2005) (“Summary judgment is appropriate if viewing
the record in the light most favorable to the nonmoving party, there are no genuine issues
of material fact and the moving party is entitled to judgment as a matter of law.”); see
generally Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Thus, “[t]he 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 v. City of Rochester, 643 F.3d
1031, 1042 (8th Cir. 2011) (en banc) (quoting Celotex, 477 U.S. at 323). In response,
12
“[t]he nonmovant ‘must do more than simply show that there is some metaphysical doubt
as to the material facts,’ and must come forward with ‘specific facts showing that there
is a genuine issue for trial.’” Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586–87 (1986)).
When the parties have met their burdens, the district judge’s task is as follows:
“On a motion for summary judgment, ‘facts must be viewed
in the light most favorable to the nonmoving party only if
there is a genuine dispute as to those facts.’” Ricci v.
DeStefano, ––– U.S. ––––, 129 S. Ct. 2658, 2677, 174 L.
Ed. 2d 490 (2009) quoting Scott v. Harris, 550 U.S. 372,
380, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007) (internal
quotations omitted). “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences
from the facts are jury functions, not those of a judge.”
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
150, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000), quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.
Ct. 2505, 91 L. Ed. 2d 202 (1986). . . . . “‘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.’”
Ricci, 129 S. Ct. at 2677, quoting Matsushita, 475 U.S. at
587, 106 S. Ct. 1348.
Torgerson, 643 F.3d at 1042-43.
“Only disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ryan v. Capital Contractors, Inc., 679
F.3d 772, 776 (8th Cir. 2012). However, summary judgment is particularly appropriate
when only questions of law are involved, rather than factual issues that may or may not
be subject to genuine dispute. See, e.g., Cremona v. R.S. Bacon Veneer Co., 433 F.3d
617, 620 (8th Cir. 2006).
13
2.
Standards for retaliatory discharge claims
The “governing law,” here, see Liberty Lobby, 477 U.S. at 248, is the Iowa law
prohibiting retaliation for asserting a worker’s compensation claim. See Melvin v. CarFreshener Corp., 453 F.3d 1000, 1002 (8th Cir. 2006). As the Iowa Supreme Court
recently explained, it first recognized the Iowa tort of retaliatory discharge in violation
of public policy in the context of discharge for pursuing a worker’s compensation claim
and had subsequently expanded the categories of protected activities. See Ackerman v.
State, 913 N.W.2d 610, 614-15 (Iowa 2018). The Iowa Supreme Court explained some
time ago that “[a]n essential element of the claim is a showing concerning the employer’s
specific motivation in firing; it must appear that the discharge was prompted by the filing
of the workers’ compensation claim.” Sanford v. Meadow Gold Dairies, Inc., 534
N.W.2d 410, 412 (Iowa 1995) (citing Smith v. Smithway Motor Xpress, 464 N.W.2d
682, 685 (Iowa 1990); Springer v. Weeks & Leo Co., 429 N.W.2d 558, 559 (Iowa 1988)).
More specifically, as the Eighth Circuit Court of Appeals has explained,
As we summarized in Barrera [v. Con Agra, Inc., 244 F.3d
663 (8th Cir. 2001)],
In Iowa, an employer’s ability to discharge an
employee is limited when the discharge clearly violates
the well-recognized and defined public policy of the
state. Discharge in retaliation for filing a worker’s
compensation claim clearly violates Iowa’s public
policy. To prevail on a retaliatory discharge claim,
[Melvin] must establish (1) that [s]he engaged in a
protected activity; (2) that [s]he suffered an adverse
employment action; and (3) that there existed a causal
connection between the protected activity and [her]
termination. The causation standard in a common-law
retaliatory discharge case is high, however, and the
employee’s engagement in protected conduct must be
14
the determinative factor in the employer’s decision to
take adverse action against the employee.
Id. [at 665] (citations, quotations, and alterations omitted).
Melvin, 453 F.3d at 1002; accord Napreljac v. John Q. Hammons Hotels, Inc., 505 F.3d
800, 803 (8th Cir. 2007) (“‘The causation standard in a common-law retaliatory discharge
case [under Iowa law] is high. The employee’s engagement in protected conduct must be
the determinative factor in the employer’s decision to take adverse action against the
employee.’” (quoting Teachout v. Forest City Cmty. Sch. Dist., 584 N.W.2d 296, 301
(Iowa 1998) (citation omitted)). Iowa cases examining claims of other kinds of discharge
in violation of public policy have added, as a fourth element, that “‘the employer had no
overriding business justification for the discharge.’” See, e.g., Jones v. University of
Iowa, 836 N.W.2d 127, 144 (Iowa 2013) (quoting Dorshkind v. Oak Park Place of
Dubuque II, L.L.C., 835 N.W.2d 293, 300 (Iowa 2013)).
As to the causation element, “‘[a] factor is determinative if it is the reason that
tips the scales decisively one way or the other, even if it is not the predominant reason
behind the employer’s decision.’” Webner v. Titan Distribution, Inc., 267 F.3d 828, 835
(8th Cir. 2001) (quoting Teachout, 584 N.W.2d at 302). As to the effect of “temporal
proximity” on proof of the causation element, the Eighth Circuit Court of Appeals has
explained,
“Under Iowa law, the fact that [Melvin] was fired after filing
a workers’ compensation claim is not alone sufficient to prove
causation. Iowa law demands, rather, that [Melvin] produce
evidence demonstrating that [her] workers’ compensation
claim was the determinative factor in [Car-Freshener]’s
decision to terminate [her] employment.” [Barrera, 244 F.3d]
at 665-66 (citation omitted). Melvin has failed to present
evidence demonstrating the existence of a genuine issue of
material fact that her filing or threat of filing a workers’
compensation claim was the determinative factor in her
15
termination other than the close proximity in time between her
injury and being placed on temporary layoff. As a matter of
Iowa law, this is insufficient to establish a prima facie case of
retaliatory discharge.
Melvin, 453 F.3d at 1002–03.
The applicable “high” causation standard also is not met where, for example, the
employer provided worker’s compensation benefits and accommodated the employee’s
injuries and workplace restrictions for several years and “thoroughly investigated” the
circumstances giving rise to the basis relied upon for firing the employee. Napreljac,
505 F.3d at 803-04. Furthermore, where there is no evidence that the employer knew
that the employee had or intended to seek worker’s compensation benefits, there is no
support for a retaliatory discharge claim. Fogel v. Trustees of Iowa College, 446
N.W.2d 451, 455 (Iowa 1989). On the other hand, a “retaliatory discharge violates
public policy even if the employer does not interfere with the discharged employee’s
benefits.” Smith, 464 N.W.2d at 685. Evidence sufficient to establish that the discharge
was in retaliation for pursuing worker’s compensation includes such things as “evidence
of tardy payment of workers’ compensation benefits by [the employer], disparaging
comments by company officials concerning claims for workers’ compensation, and the
testimony of several employees that they had been harassed following their filing of
workers’ compensation claims,” as well as “inconsistent reasons for [the employee’s]
discharge,” and testimony of a company doctor that “he believed the company was
intentionally ‘slowing things down’ in processing workers’ compensation claims.”
Clarey v. K-Products, Inc., 514 N.W.2d 900, 902 (Iowa 1994).
B.
Application Of The Standards
Although I would not find for Hernandez on her claim, at least not on this summary
judgment record, that is not the standard. What is more important is that I cannot find
16
that a rational trier of fact could find for Hernandez, even taking the record as a whole
and viewing the facts in the light most favorable to her. Torgerson, 643 F.3d at 104243.
There does not appear to be any genuine dispute that Hernandez engaged in
protected activity by seeking and obtaining worker’s compensation benefits or that she
suffered an adverse employment action, because she was fired. See Melvin, 453 F.3d at
1002 (first two elements of the claim). The problem, here, is that Hernandez has not
generated genuine issues of material fact on the causation element under the applicable
“high” standard—that the defendants’ specific motivation in firing her, that is, the
determinative factor, was her claim for worker’s compensation benefits or her potential
to need such benefits. See Sanford, 534 N.W.2d at 412 (requiring proof that the “specific
motivation” for adverse action was a claim for worker’s compensation benefits);
Teachout, 584 N.W.2d at 301 (requiring that the protected conduct be the “determinative
factor” in the adverse action); accord Nepreljac, 505 F.3d at 803 (“determinative
factor”); Melvin, 453 F.3d 1002 (“determinative factor”); Webner, 267 F.3d at 835
(“determinative factor”). This is so, even without weighing the evidence or considering
credibility issues. Torgerson, 643 F.3d at 1042 (on summary judgment, the court must
not make credibility determinations or weigh the evidence).
As in Melvin, Hernandez tries, in the first instance, to generate the necessary
genuine issue of material fact on causation on the basis of the temporal proximity between
her notice of a need for surgery—hence, more worker’s compensation benefits—and her
termination, as well as the temporal proximity between her first discipline for a safety
violation and her return to her regular job after a very long period on light duty. 453
F.3d at 1002-03.
Under Iowa law, however, neither the fact that Hernandez was
disciplined after a return to her regular job after a period on light duty, nor the fact that
she was fired after providing notice of a further need for worker’s compensation benefits,
17
is sufficient, alone, to prove causation. Melvin, 435 F.3d at 1002. Nor do I believe that
a rational trier of fact could conclude that both adverse actions, taken together, show
anything but insufficient mere proximity to worker’s compensation claims, where in
between the incidents, the defendants continued to provide Hernandez with worker’s
compensation benefits, including an additional several weeks of light duty.
Also, as in Melvin, Hernandez has failed to present evidence that is sufficient to
generate a genuine issue of material fact that her worker’s compensation claims were the
determinative factor in her termination other than the asserted temporal proximity. Id.
at 1002-03. I recognize that the fact that the defendants paid Hernandez’s worker’s
compensation claims, including paying for her surgery in September 2015, months after
she was fired, does not necessarily prove that the defendants did not violate public policy.
See Smith, 464 N.W.2d at 685 (stating an employer can violate public policy even if it
does not interfere with the discharged employee’s worker’s compensation benefits).
Nevertheless, the fact that Hernandez’s employers paid her worker’s compensation
benefits and the fact that they accommodated her injuries—and, indeed, accommodated
her problems with maintaining an adequate pace on the band saw line before she sustained
any injury—for two years, from April 2013 through April 2015, even though Hernandez
was on light duty for more than half of that two-year period, belies an inference of animus
toward worker’s compensation claims. See Napreljac, 505 F.3d at 803-04.
Hernandez’s dispute with the sufficiency of the “investigation” before her January
2015 suspension does not generate any genuine issues of material fact, either, because
she points to no evidence to support that dispute, just her disagreement with the outcome.
Hernandez also does not dispute that Ms. Peterson investigated the circumstances leading
to her termination in April 2015, including interviewing Ms. Garcia, other employees
present at the time of the April 2015 incident, Hernandez’s supervisors and managers,
and Hernandez herself. See id. (concluding that the causation standard was not met where
18
the employer continued to accommodate the employee’s injury and pay worker’s
compensation benefits and had “thoroughly investigated” the circumstances leading to
the employee’s discharge); see also Torgerson, 643 F.3d at 1042 (“The movant must do
more than simply show that there is some metaphysical doubt as to the material facts,
and must come forward with specific facts showing that there is a genuine issue for trial.”
(internal quotation marks and citations omitted)).
Furthermore, Hernandez has not pointed to evidence that, for example, the
defendants made tardy payment of worker’s compensation benefits, that company
officials made disparaging comments concerning worker’s compensation claims or gave
inconsistent reasons for Hernandez’s discharge or discipline, or that any other employees
testified that they had been harassed following their filing of worker’s compensation
claims. Compare Carey, 514 N.W.2d at 902. Indeed, Hernandez has not attempted to
rebut the defendants’ assertions that no one but Ms. Peterson even knew about the
recommendation that Hernandez have surgery and that no one considered Hernandez’s
worker’s compensation claim or the status of her injury when they recommended that she
be terminated. See Fogel, 446 N.W.2d at 455 (stating that, where there is no evidence
that the employer knew that the employee had or intended to seek worker’s compensation
benefits, there is no support for a retaliatory discharge claim). Ms. Peterson testified
that she does not recall whether or not she knew that Hernandez needed surgery at the
time she made the ultimate decision to terminate Hernandez, but that leaves only an
inference that she may have known and a negligible inference (essentially, no more than
a “metaphysical doubt”), Torgerson, 643 F.3d at 1042, that she acted on that knowledge
to try to forestall any further payment for Hernandez’s injuries by firing her.
I disagree with the defendants’ argument that the evidence of the plant nurse’s
supposed comment to Hernandez about waiting for Ms. Peterson to approve Hernandez’s
surgery is inadmissible at summary judgment. Rather, that statement is not hearsay,
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because it is not offered for its truth, but to show Ms. Peterson’s knowledge that
Hernandez needed surgery at the time that Ms. Peterson fired Hernandez. However, the
evidence concerning the statement would, at most, generate an issue of fact on
Ms. Peterson’s knowledge, because the defendants point out that the comment is not
reflected in the nurse’s contemporaneous notes, the nurse denies making it, and
Hernandez did not previously reveal the supposed statement, so that it is impeachable.
Although a reasonable finder of fact could find, on this and other evidence in the record,
that Ms. Peterson knew about Hernandez’s need for surgery at the time Ms. Peterson
terminated Hernandez’s employment, knowledge of the need for worker’s compensation
benefits, standing alone, is not enough to establish a retaliatory motive. The statement
would not generate any genuine issue of material fact on causation, because, at most, it
demonstrates temporal proximity between knowledge of the need for worker’s
compensation benefits and adverse employment action, which is not enough, standing
alone, to prove causation. Melvin, 435 F.3d at 1002. Moreover, the alleged statement
does not generate a genuine issue of material fact on causation, because Hernandez has
not pointed to any evidence that Ms. Peterson, or any other employee at Curly’s Foods,
John Morrell, or Smithfield, could make a decision about whether or not she got surgery,
but there is undisputed evidence that decision fell to ESIS, the worker’s compensation
administrator.
I also do not find any genuine issues of material fact that the defendants “set up”
Hernandez for termination or tried to make her quit by suspending her for her first safety
violation, which also prevented her from seeking a transfer for a year to another position
that she could perform without pain or aggravation of her injury. Hernandez has not
pointed to any evidence that she ever considered transferring to another position. Also,
the defendants state that the first safety violation could have incurred dismissal, and
Ms. Peterson testified that she has, in fact, fired employees for first safety violations.
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While Hernandez argues that the policies at Curly’s Foods did not require a suspension
for her first safety violation or termination for her second safety violation, she has not
pointed to any evidence that the policies forbade such disciplinary actions, so she has
pointed to nothing that rebuts the defendants’ contention that they simply could have fired
her for the first violation. The reasonable inference from their failure to do so is one of
forbearance, not animus toward worker’s compensation claims.
A rational trier of fact also could not find for Hernandez on the causation element
on the basis that the defendants denied her claim for healing period benefits, after her
termination, but that position was rejected by the Iowa Worker’s Compensation Court.
Hernandez has not attempted to rebut the defendants’ allegations that the denial of healing
period benefits was a decision of its worker’s compensation administrator, ESIS, not a
decision of the defendants, nor has she attempted to rebut the defendants’ allegation that
the Iowa Worker’s Compensation Court rejected the denial of those benefits, but that
tribunal held that ESIS’s denial was “fairly debatable.” No reasonable inference of
animus toward worker’s compensation claims arises from these circumstances.
Finally, assuming for the sake of argument that Hernandez must also establish a
fourth element, that the defendants had no overriding business justification for the
discharge, see, e.g., Jones, 836 N.W.2d at 144 (stating this as an element of a claim of
wrongful discharge in violation of public policy), Hernandez has pointed to next to
nothing to try to raise an inference that her termination was not justified by safety
violations. Again, while Hernandez argues that the determination that she violated safety
procedures when she cut her finger in January 2015 was wrong, she has not pointed to
evidence demonstrating that there was no basis for the defendants’ determination that she
did commit a safety violation. Similarly, while Hernandez argues that the policies at
Curly’s Foods did not require a suspension for her first safety violation or termination
for her second safety violation, she has not pointed to any evidence that the policies
21
forbade such disciplinary actions in the circumstances presented, required any graduated
discipline, or required any determination of discipline by a neutral party. Hernandez’s
suggestions are a very long way from evidence of procedural peculiarities that might give
rise to inferences that her second safety violation was a pretext for termination that was
really because of her worker’s compensation claims.
Because there are no genuine issues of material fact on Hernandez’s retaliation
claim, and the undisputed evidence demonstrates that Hernandez was fired for the
legitimate business reason that she committed two safety violations—when the first would
have been enough to warrant termination, by itself—the defendants are entitled to
summary judgment on Hernandez’s claim.
III.
CONCLUSION
Upon the foregoing, the defendants’ June 20, 2018, Motion For Summary
Judgment (docket no. 28) is granted. Judgment in favor of the defendants shall enter
accordingly.
IT IS SO ORDERED.
DATED this 27th day of August, 2018.
______________________________________
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA
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