Jensen v. IOC Black Hawk County Inc
ORDER granting in part and denying in part 30 MOTION to Strike the Declaration of Patricia Jensen in Support of Resistance to Defendant's Motion for Summary Judgment. Granting 33 Motion to Strike 27 Reply to Response to Plaintiff 039;s Response to Defendant's Statement of Facts). The Clerk of Court is directed to strike IOC's Reply to Jensen's Response to IOC's Statement of Facts. Granting 18 Motion for Summary Judgment. The Clerk of Court is directed to enter judgment in favor of Defendant. The trial date is vacated. Signed by Chief Judge Linda R Reade on 10/17/16. (ksy)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
PATRICIA L. JENSEN,
IOC BLACK HAWK COUNTY INC.,
d/b/a ISLE CASINO HOTEL
TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SUBJECT MATTER JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . 3
SUMMARY JUDGMENT STANDARD . . . . . . . . . . . . . . . . . . . . . . . . . 3
MOTIONS TO STRIKE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
IOC Motion to Strike . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Hearsay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Contradiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Speculation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Jensen Motion to Strike . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
RELEVANT FACTUAL BACKGROUND . . . . . . . . . . . . . . . . . . . . . . 11
Work History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Harassment Complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Title VII retaliation . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ICRA retaliation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Causal Connection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Title VII but-for causation . . . . . . . . . . . . . . . . . . . . . . .
Targeting and increased scrutiny . . . . . . . . . . . . . . .
Inaccuracy on termination report . . . . . . . . . . . . . .
ICRA “significant factor” causation . . . . . . . . . . . . . . . . .
Pretext . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
VIII. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
The matters before the court are Defendant IOC Black Hawk County, Inc.’s
(“IOC”) “Motion for Summary Judgment” (“Motion”) (docket no. 18) and “Motion to
Strike” (“IOC Motion to Strike”) (docket no. 30) and Plaintiff Patricia L. Jensen’s
“Motion to Strike” (“Jensen Motion to Strike”) (docket no. 33).
II. PROCEDURAL HISTORY
On August 3, 2015, Jensen filed a Petition (docket no. 3) in the Iowa District Court
for Black Hawk County alleging retaliation in violation of “Title VII of the Civil Rights
Act of 1964” (“Title VII”) and the “Iowa Civil Rights Act” (“ICRA”). On September 4,
2015, IOC removed the case, bringing the instant action before the court. See Notice of
Removal (docket no. 2). On September 17, 2015, IOC filed an Answer (docket no. 7).
On July 29, 2016, IOC filed the Motion. On August 22, 2016, Jensen filed a Resistance
(docket no. 22). On September 1, 2016, IOC filed a Reply (docket no. 27). On that same
date, IOC filed the IOC Motion to Strike, requesting that the court strike “Jensen’s
Declaration in Support of Resistance” (“Jensen Declaration”) contained in “Jensen’s
Appendix of Documents in Support of Resistance” (“Jensen Appendix”) (docket no. 22-3).
On September 7, 2016, Jensen filed the Jensen Motion to Strike, requesting that the court
strike “IOC’s Reply to Jensen’s Response to IOC’s Statement of Facts” (“IOC Reply to
Facts”) (docket no. 27-3). On September 8, 2016, IOC filed a Resistance to the Jensen
Motion to Strike (docket no. 35). On September 19, 2016, Jensen filed an untimely
Resistance to the IOC Motion to Strike (docket no. 36). See LR 7(e) (setting resistance
deadline for fourteen days after the filing of a motion). On September 29, 2016, IOC filed
an untimely Reply in Support of the IOC Motion to Strike (docket no. 37). See LR 7(g)
(setting reply deadline for seven days after the filing of a resistance). Neither party
requests oral argument on the Motion or the Motions to Strike and the court finds that oral
argument is unnecessary. The matters are fully submitted and ready for decision.
III. SUBJECT MATTER JURISDICTION
The court has original jurisdiction over the Title VII claim because it arises under
the United States Code. 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 court has supplemental jurisdiction over the ICRA claim because
it is so related to the Title VII claim that it forms 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 . . . .”).
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). “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 v. City of
Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc) (alterations omitted) (quoting
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “If the movant does 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, 477 U.S. at 324).
The court must view the record in the light most favorable to the non-moving party
and afford it all reasonable inferences. See Schmitt v. Des Moines Pub. Sch., 655 F.3d
811, 819 (8th Cir. 2011). “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 v. DeStefano, 557 U.S. 557, 586 (2009) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). “A
complete failure by the non-moving party ‘to make a showing sufficient to establish the
existence of an element essential to that party’s case necessarily renders all other facts
immaterial.’” B.M. ex rel. Miller v. S. Callaway R-II Sch. Dist., 732 F.3d 882, 886 (8th
Cir. 2013) (alteration omitted) (quoting Celotex, 477 U.S. at 322-23).
V. MOTIONS TO STRIKE
Because both Motions to Strike implicate the factual record by seeking to strike
portions of the evidentiary record or arguments relating to the evidentiary record, the court
shall address the Motions to Strike before proceeding to state the relevant facts.
A. IOC Motion to Strike
In the IOC Motion to Strike, IOC seeks to strike the Jensen Declaration in its
entirety for failure to comply with Federal Rule of Civil Procedure 56(c)(4). Specifically,
IOC argues that each paragraph of the declaration (1) contains inadmissible hearsay; (2)
contradicts Jensen’s prior deposition testimony; and/or (3) states an opinion, speculation
or legal conclusion to which Jensen lacks personal knowledge. See IOC Motion to Strike
Jensen resists the IOC Motion to Strike on various grounds.
Resistance to the IOC Motion to Strike. Despite its untimeliness, the court will consider
the arguments included in the Resistance to the IOC Motion to Strike. However, the court
will not consider IOC’s untimely Reply in Support of the IOC Motion to Strike.
Federal Rule of Civil Procedure 56(c)(4) states that “[a]n affidavit or declaration
used to support or oppose a motion [for summary judgment] must be made on personal
knowledge, set out facts that would be admissible in evidence, and show that the affiant
or declarant is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). A
party may object to materials submitted in opposition to summary judgment on grounds
that such materials “cannot be presented in a form that would be admissible in evidence.”
Fed. R. Civ. P. 56(c)(2). “[T]he standard is not whether the evidence at the summary
judgment stage would be admissible at trial—it is whether it could be presented at trial in
an admissible form.” Gannon Int’l, Ltd. v. Blocker, 684 F.3d 785, 793 (8th Cir. 2012)
(citing Fed. R. Civ. P. 56(c)(2)). When a party objects to materials submitted to oppose
summary judgment, “the burden is on the proponent of the evidence to show that the
material is admissible as presented or to explain the admissible form that is anticipated.”
Id. (citing Fed. R. Civ. P. 56(c) advisory committee’s note to 2010 amendment).
Additionally, to the extent that an affidavit directly contradicts earlier deposition testimony,
the court may disregard such affidavit and it may be stricken. See City of St. Joseph, Mo.
v. Sw. Bell Tel., 439 F.3d 468, 475-76 (8th Cir. 2006).
IOC argues that numerous paragraphs should be stricken from the Jensen
Declaration because they contain inadmissible hearsay. See Brief in Support of IOC
Motion to Strike (docket no. 30-1) at 4. Jensen argues that the statements attributed to
IOC employees John Stanford, David Taylor, Cory Kozelka, Rachael Nyland, Nyland’s
partner and unidentified others are not hearsay and should not be stricken. See Resistance
to the IOC Motion to Strike at 5-7, 9-12. An opposing party’s out-of-court statement
offered for its truth is not hearsay if it “is offered against [the] opposing party and . . . was
made by the party’s agent or employee on a matter within the scope of that relationship and
while it existed.” Fed. R. Evid. 801(d)(2)(D). “This rule requires the proffering party
to lay foundation to show that an otherwise excludible statement relates to a matter within
the scope of the agent’s employment.” Gulbranson v. Duluth, Missabe & Iron Range Ry.
Co., 921 F.2d 139, 142 (8th Cir. 1990). A matter may be within the scope of employment
of multiple employees, even if those employees are not direct decisionmakers. See
Holland v. Washington Cty., Ark., No. 15-CV-5088, 2016 WL 1466556, at *5 (W.D. Ark.
Apr. 14, 2016) (citing Wilson v. Budco, 762 F. Supp. 2d 1047, 1061 (E.D. Mich. 2011)).
Here, Stanford, Taylor, Kozelka, Nyland, Nyland’s partner and the unidentified coworkers are all employees of IOC and their statements are being offered against IOC.
Therefore, the statements are admissible under Rule 801(d)(2)(D) if Jensen can lay
foundation to show that the statements were made within the scope of their employment.
The record establishes that Stanford is IOC’s Employee Relations Director, Taylor is the
Facilities/Security Manager and Kozelka is Lead Supervisor. It is clear to the court from
their titles and their involvement in the events underlying this case (as reflected in the
record) that Stanford, Taylor and Kozelka all carried certain supervisory and managerial
authority over IOC’s security staff, including Jensen. As such, the court finds that
statements by Stanford, Taylor and Kozelka about the following topics were all made
within the scope of their roles as employees with supervisory or managerial roles and are
not hearsay: (1) warning about possible co-worker retaliation (paragraphs 2 and 3); (2)
refusing to interfere with employees’ personal relationships (paragraph 8); (3) ordering
employees not to discuss co-worker relationships with other co-workers (paragraph 10 and
11); (4) notifying employees about pending investigations and issuing suspensions
(paragraphs 14 and 18); (5) notifying employees of termination (paragraphs 16 and 18);
and (6) preparing documents memorializing the termination (paragraphs 17 and 18).1
Although Jensen has not formally laid foundation with respect to specific duties
performed by Stanford, Taylor and Kozelka, the record clearly indicates that they
exercised a significant degree of authority over IOC’s security staff. In any event,
Jensen’s showing is sufficient to satisfy her burden of showing that the statements could
Other statements directly attributed to IOC employees and objected to by IOC—including
general details of conversations between Jensen and Taylor, Nyland and Nyland’s partner
(paragraphs 8 and 11) and attitudes held by unidentified co-workers (paragraphs 2 and
3)—do not appear to be within the scope of their employment. However, the court finds
that they are not hearsay because they are not being offered for their truth, but are instead
being offered to show their effect on Jensen or to place events into context. See Fed. R.
Evid. 801(c)(2). Therefore, the statements directly attributed to IOC employees are not
hearsay and shall not be stricken.
Jensen concedes that the statements attributed to Sandy Daman are hearsay but
argues that they can be presented in admissible form at trial. Resistance to the IOC Motion
to Strike at 7-9. Daman’s statements relay statements made by another declarant, Brian
Lucas. See Jensen Appendix at 23. Therefore, they create two levels of hearsay: (1)
Jensen stating what Daman said, and (2) Daman stating what Lucas said. Jensen’s counsel
states that Daman will be subpoenaed to testify at any eventual trial, eliminating the first
level of hearsay. See Exhibit 2 to Resistance to the IOC Motion to Strike (docket no. 36-2)
¶ 8; see also Gannon, 684 F.3d at 793. With respect to the second level of hearsay, the
court finds that Lucas’s statements are admissible as non-hearsay under Rule 801(d)(2)(D).
As with the employees discussed above, Lucas is an employee of IOC and his statements
are being offered against IOC. Jensen states that Lucas is a Security Supervisor and that
his role requires him to act as a liaison between security staff and management. To that
end, Lucas’s statements warning Jensen that certain of her co-workers responded
negatively to Jensen’s participation in protected conduct (paragraphs 4 and 5) implicate
working relationships among the security staff and, as such, implicate a matter within the
be presented in admissible form at trial. See Gannon, 684 F.3d at 793.
scope of his employment.2 Therefore, the statements made by Lucas through Daman are
not hearsay and shall not be stricken. Accordingly, the IOC Motion to Strike shall be
denied as to its arguments that the Jensen Declaration includes hearsay.
IOC argues that certain paragraphs should be stricken from the Jensen Declaration
because they directly contradict Jensen’s testimony at her deposition. Courts “must use
extreme care” when deciding whether an affidavit directly contradicts prior testimony and
warrants striking. City of St. Joseph, 439 F.3d at 476. An affidavit must not be stricken
simply because “the affiant needs to explain portions of [her] deposition testimony that
were unclear.” Id. Here, IOC points to three paragraphs in the Jensen Declaration that
purportedly contradict Jensen’s deposition testimony. See Brief in Support of IOC Motion
to Strike at 5. In these paragraphs, Jensen disputes IOC’s characterizations of her
deposition testimony included in “Defendant’s Statement of Undisputed Facts” (“IOC
Statement of Facts”) (docket no. 18-1). Specifically, she disputes that she testified that
Nyland’s partner “was” a pedophile or serial killer (paragraph 8) and clarifies her
testimony about her supervisors’ motivations for terminating her (paragraphs 12 and 13).
See Jensen Appendix at 23-26. In the Jensen Declaration, Jensen clarifies that she only
ever stated that Nyland’s partner “could be” a pedophile or serial killer and that she
detected no retaliatory animus in her supervisors until they terminated her. Id. The court
finds that these portions of the Jensen Declaration do not directly contradict Jensen’s
deposition testimony, but instead clarify portions of the deposition testimony.
Accordingly, the IOC Motion to Strike shall be denied as to its argument that the Jensen
Declaration directly contradicts Jensen’s deposition testimony.
As noted above, although Jensen does not describe specific duties performed by
Lucas, her showing is sufficient to satisfy her burden of showing that the statements could
be presented in admissible form at trial. See Gannon, 684 F.3d at 793.
Lastly, IOC argues that certain paragraphs should be stricken from the Jensen
Declaration because they contain speculation unsupported by personal knowledge. In
paragraph 2, Jensen states that it was “common knowledge” that she was being targeted
by certain co-workers. See Jensen Appendix at 22. Although she proceeds to describe
conversations with her supervisors warning her of potential retaliation, she does not
substantiate her conclusion that any targeting was “common knowledge.” Because it
amounts to no more than a sweeping unsupported conclusion, the court shall strike the first
sentence of paragraph 2, which contains the “common knowledge” statement. Likewise,
the court shall strike paragraph 6, in which Jensen speculates that, when Lucas warned her
that “they” were out “to get” her, he was referring specifically to management plotting to
retaliate against her. Id. at 23. Jensen argues that her interpretation “can be deduced
definitively” because management staff were the only people with the authority “to get”
Jensen. Resistance to the IOC Motion to Strike at 2. However, such deduction requires
the logical leap that “to get” is synonymous with “to terminate.” It is apparently true that
IOC’s managers were the only people authorized to terminate Jensen. However, the court
declines to assume that “to get” is coterminous with “to terminate.”
assumption, Jensen’s interpretation that the vague warning that “they” were out “to get”
her referred specifically to management rests solely on speculation. As such, it will not
be considered. The court shall further strike the first and last sentences of paragraph 17,
which insinuate that there was never an investigation into the events that culminated in
Jensen’s termination. See Jensen Appendix at 26. Jensen does not profess any personal
knowledge that there was no investigation, but simply points to vague circumstances from
which she speculates that no investigation occurred. The court declines to consider such
speculation dressed up as personal knowledge. With respect to the other portions of the
Jensen Declaration that IOC argues lack personal knowledge (paragraphs 3, 12 and 13),
the court finds that such portions do not warrant striking. Therefore, the IOC Motion to
Strike shall be granted in part and denied in part as to its arguments that the Jensen
Declaration includes speculation or opinion unsupported by personal knowledge.
B. Jensen Motion to Strike
In the Jensen Motion to Strike, Jensen seeks to strike the IOC Reply to Facts for
failure to comply with Local Rule 56(d). Jensen Motion to Strike at 1. IOC resists the
Jensen Motion to Strike on grounds that the IOC Reply to Facts serves “to alert the court,
pursuant to [Federal Rule of Civil Procedure] 56(c)(2), that [Jensen’s] denials are not
based on admissible record evidence, violate the Federal Rules, and equate to admissions.”
Resistance to Jensen Motion to Strike at 1. IOC proceeds to argue that the IOC Reply to
Facts highlights the same purported deficiencies in the Jensen Declaration that are the basis
for the IOC Motion to Strike. Id. at 2-3.
Local Rule 56(d) provides that the party that filed a motion for summary judgment
“must, within 7 days after service of the resisting party’s statement of additional facts, file
a reply in which the moving party expressly admits, denies, or qualifies each of the
resisting party’s numbered statements of additional fact.” LR 56(d). The rule further
provides that the moving party “may, without leave of court, file a reply brief” and “must
file a supplemental appendix” if additional materials are relied upon in the reply brief. Id.
Local Rule 56(d) does not expressly contemplate any additional filings. As discussed
above, Federal Rule 56(c)(2) permits a party to object to summary judgment materials that
“cannot be presented in a form that would be admissible in evidence.” Fed. R. Civ. P.
Here, the IOC Motion to Strike and the IOC Reply to Facts amount to duplicative
filings. As IOC concedes in its Resistance to the Jensen Motion to Strike, both filings
serve only to attack the Jensen Declaration for purported violations of Federal Rule
56(c)(4). Therefore, one such filing shall be stricken. See Ehler v. Wheaton Franciscan
Med. Plan, 2009 WL 1097070, at *2 (N.D. Iowa 2009) (striking duplicate exhibits). The
court has already discussed the IOC Motion to Strike above, effectively mooting the
duplicative arguments in the IOC Reply to Facts. Accordingly, the Jensen Motion to
Strike shall be granted. The IOC Reply to Facts shall be stricken and will not be
considered by the court.
VI. RELEVANT FACTUAL BACKGROUND
A. Work History
Jensen began employment with IOC as a security officer at the Isle Casino Hotel
Waterloo on approximately January 16, 2009. IOC Statement of Facts ¶ 1. When Jensen
began her employment with IOC, she received and signed the “Standards of Team Member
Conduct.” “Defendant’s Appendix in Support of Summary Judgment” (“IOC Appendix
I”) (docket no. 18-2) at 28 (formatting omitted). The Standards of Team Member Conduct
states that employees are “subject to disciplinary action up to and including termination”
for various behaviors, including “[i]nsubordination or refusal to obey a directive of a
In her 2009 annual performance review, Jensen received a “[t]otal [r]ating” of 3.49
on a five-point scale, indicating that she “[m]eets [e]xpectations.” IOC Appendix I at 25.
The 2009 review included comments that Jensen “can be abrupt with [team members]
while performing her duties, even though she has a job to do it is how she talks to the
[team member] that gets complaints,” id. at 23, and “is able to communicate effectively
in both oral and written communication,” id. at 24, among other performance-related
observations. Jensen’s 2010 annual performance review included comments that “[t]here
is room for improvement when it comes to showing respect to others” and that Jensen “has
shown disrespect to Supervisors in front of other officers and hung up the phone on fellow
officers.” IOC Statement of Facts ¶ 3; IOC Appendix I at 26.
On March 22, 2011, Jensen was issued a written “First Warning.” IOC Appendix
I at 30. The written warning described that Jensen “was insubordinate towards” Lead
Security Officer Nyland during a discussion about chain-of-command procedures. Id. The
written warning included a “[c]oaching [p]lan,” which states that Jensen “must understand
the proper chain-of-command, and listen to direct orders and coachings issued to her by
her superiors.” Id. The written warning further described the “[c]onsequences (if any)
for uncorrected behavior” to be “[f]urther disciplinary action up to and including
B. Harassment Complaint
On March 28, 2011, Jensen told Security Supervisor Lucas that another security
supervisor, Domingo Jaramillo, made an inappropriate sexual comment to her. IOC
Statement of Facts ¶ 6. IOC investigated Jensen’s complaint and Jaramillo admitted that
he did make the inappropriate comment. Id. ¶ 7. On April 4, 2011, IOC terminated
Jaramillo as a result of the harassment complaint and investigation. Id. ¶ 8.
Jaramillo was “well liked” by certain IOC employees. Jensen Appendix at 17
(Nyland deposition testimony); “Defendant’s Appendix in Support of Reply” (“IOC
Appendix II”) (docket no. 27-1) at 10 (Stanford deposition testimony). After IOC
terminated Jaramillo, Employee Relations Director Stanford and Facilities/Security
Manager Taylor advised Jensen that she should report to them if she encountered any
“rumors” or indications of retaliation connected with her harassment complaint against
Jaramillo. IOC Appendix II at 9-10 (Stanford deposition testimony); id. at 15 (Taylor
According to Jensen, in the period following Jaramillo’s
termination, she endured increased scrutiny of her job performance and was told by others
that unidentified persons (“they”) were “out to get her” and were “watching everything.”
See Jensen Appendix at 22-23 (Jensen Declaration). Jensen “complained about all of this”
to Stanford. Id. at 23. During this period, Jensen did not believe that Stanford or Taylor
harbored any retaliatory animus toward her or were “targeting” her. Id.; id. at 13-14
(Jensen deposition testimony); see also IOC Appendix I at 21 (Jensen deposition
On June 15, 2011, Jensen was issued a “Written Coaching.” IOC Appendix I at
31. The written coaching described that Jensen was “upset” with how a co-worker, Mike
George, performed lost-and-found procedures and directly approached George with her
concerns rather than raising the issue with a supervisor pursuant to chain-of-command
procedures. Id. The written coaching included a “[c]oaching [p]lan,” which states that
“[s]upervisors will review chain of command with [Jensen] so she understands how to
properly deal with problems that arise at work.” Id. The written coaching further
described the “[c]onsequences (if any) for uncorrected behavior” to be “[f]urther
disciplinary actions up to and including termination.” Id. George “was a good friend”
of Jaramillo’s. Jensen Appendix at 8 (Jensen deposition testimony).
On August 23, 2011, Jensen and Nyland were working together at the turnstiles of
the casino. While they were working together, a co-worker brought up the subject of
Nyland’s relationship with another co-worker employed by IOC at the casino. IOC
Appendix I at 52 (Nyland deposition testimony). Upon learning of Nyland’s relationship,
Jensen voiced concerns that Nyland was “rushing into it and maybe . . . [she] should
reconsider.” Id. at 14 (Jensen deposition testimony). According to Nyland, during the
conversation, Jensen voiced her concerns by asking questions such as, “[h]ow do we know
he’s not a killer?” Id. at 52 (Nyland deposition testimony).
Shortly after her conversation with Nyland, Jensen discussed Nyland’s relationship
with Taylor. Jensen Appendix at 4 (Jensen deposition testimony). Jensen encouraged
Taylor to “take . . . Nyland under his wing, be like a father figure to her, and tell her to
slow down” in her relationship with the co-worker. Id. at 24 (Jensen Declaration). Taylor
stated that he would not do so because Nyland is “a big girl.” Id. Jensen then expressed
that she did not know anything about the co-worker that Nyland was involved with and that
“[a]s far as we know, he could be a pedophile or a serial killer.” Id. During the
conversation, Taylor told Jensen not to speak with Nyland about her relationship. Id.
Lead Supervisor Kozelka was present during Jensen’s conversation with Taylor, although
he did not participate. Id. Jensen describes the conversation with Taylor as “light.” Id.
After her conversation with Taylor, Jensen did not further criticize Nyland’s relationship
in front of Nyland.
See IOC Appendix I at 55-56 (Nyland deposition testimony).
However, Jensen and Nyland did have another conversation about some matter touching
upon Nyland’s relationship. See id. at 56; Jensen Appendix at 25 (Jensen Declaration).
On August 24, 2011, the day after her conversation with Jensen, Nyland left a voice
message with Stanford complaining about Jensen’s statements. Id. at 53-54 (Nyland
deposition testimony); see also id. at 59 (disciplinary termination document stating that
“Nyland called HR on 8/24/11 to complain about the conversation she had with . . .
Jensen”). Upon receiving the voice message, Stanford proceeded to investigate the
complaint by speaking with Nyland and Jensen and by soliciting a statement from Kozelka
about Jensen’s conversation with Taylor.
See id. at 33-37 (Stanford deposition
testimony).3 Jensen was “off work” from August 25 through August 27, 2011. Jensen
Appendix at 26 (Jensen Declaration). On August 27, 2011, Taylor informed Jensen that
she was being suspended pending the conclusion of Stanford’s investigation. Id. at 26-27
As a result of his investigation, Stanford determined that Jensen had continued to
discuss Nyland’s relationship with Nyland after Taylor instructed her not to.
In the Jensen Declaration, Jensen states that, “[i]f there was an ‘investigation’ of
the conversation [with Nyland], no one contacted me to participate in it.” Jensen
Appendix at 26. However, in her deposition, Jensen testified that Stanford approached her
to discuss her conversation with Taylor. Id. at 5. Affording Jensen all reasonable
inferences, this evidence establishes that Stanford did in fact speak with Jensen as part of
his investigation—though he did not address Jensen’s statements to Nyland, but instead
addressed the related matter of Jensen’s conversation with Taylor.
Appendix I at 38 (Stanford deposition testimony). Stanford discussed his investigation with
Taylor and they collectively decided to terminate Jensen. Id. at 39-40. On August 26,
2011, Taylor prepared a “[d]isciplinary termination” report describing the events of
Jensen’s conversations with Nyland and Taylor. Id. at 59. The termination report stated:
On Tuesday 8/23/11 Officer Jensen was stationed at turnstile,
Lead Officer Nyland was in the area of turnstile. A [team
member] asked [Nyland] about who she was seeing, Jensen
then stepped in telling Nyland she had already talked to Taylor
and Kozelka saying they needed to interfer[e] with [Nyland’s]
relationship and guide and direct her. I had given [Jensen]
direct orders not to speak to . . . Lead Officer Nyland
reference [sic] Nyland’s personal life due to the disruption it
would cause in the security department. [Jensen] decided to
disregard my direct order. Lead Officer Nyland called HR on
8/24/11 to complain about the conversation she had with
Id. The termination report also references the “First Warning” that Jensen had received
on March 22, 2011 for insubordination to Nyland. Id. On August 30, 2011, Taylor
informed Jensen that she was being terminated.
Jensen Appendix at 26 (Jensen
Declaration). On September 1, 2011, IOC drafted and sent a termination letter to Jensen,
formally terminating her employment as of August 26, 2011. Id. at 28.
Jensen alleges that IOC terminated her in retaliation for her harassment complaint
against Jaramillo, in violation of Title VII and the ICRA. IOC argues that the court should
grant summary judgment in its favor on both claims.
A. Applicable Law
Title VII retaliation
Title VII makes it unlawful for an employer to retaliate against an employee
“because [the employee] has made a charge, testified, assisted, or participated in any
manner in an investigation” into a Title VII violation. 42 U.S.C. § 2000e-3. In cases
where the plaintiff offers “no direct evidence of retaliation,” retaliation claims are analyzed
under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). DePriest v. Milligan, 823 F.3d 1179, 1187 (8th Cir. 2016). The McDonnell
Douglas framework first requires the plaintiff to establish a prima facie case of retaliation
by showing: “(1) she engaged in statutorily protected conduct; (2) she suffered an adverse
employment action; and (3) a causal connection exists between the two.” Id. (quoting
Fiero v. CSG Sys., Inc., 759 F.3d 874, 880 (8th Cir. 2014)). “[T]o show a causal
connection, a plaintiff must show that her protected activity was a but-for cause of her
employer’s adverse action.” Shirrell v. St. Francis Med.Ctr., 793 F.3d 881, 888 (8th Cir.
2015) (citing Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. __, 133 S. Ct. 2517, 2534
(2013)). “If the plaintiff makes this prima facie showing, the employer must then rebut
it by presenting evidence of a legitimate, non-retaliatory reason for the action it took
against the plaintiff.” DePriest, 823 F.3d at 1187 (internal quotation marks and alterations
omitted) (quoting Fiero, 759 F.3d at 880). “If the employer satisfies this burden, the
plaintiff is then obliged to present evidence that (1) creates a question of fact as to whether
the employer’s proffered reason was pretextual and (2) creates a reasonable inference that
the employer acted in retaliation.” Id. (internal quotation marks and alterations omitted)
(quoting Fiero, 759 F.3d at 880).
Jensen argues that retaliation claims brought under the ICRA are subject to a distinct
and less rigorous standard than the standard applicable under Title VII. See Resistance at
14-17. Specifically, Jensen contends that causal connection in an ICRA retaliation claim
only requires a showing that the protected conduct was “a motivating factor” in the adverse
employment action taken by the employer, rather than the but-for cause required under
Title VII. See id. at 14.
Both the Iowa Supreme Court and the Eighth Circuit have recognized that the same
analytical framework typically applies under both Title VII and the ICRA. See, e.g.,
Banks v. Deere, 829 F.3d 661, 665 n.4 (8th Cir. 2016) (“Given the kinship between the
ICRA and Title VII, we, like the Iowa courts, normally ‘analyze ICRA claims under the
same analytical framework used for Title VII claims.’” (internal citation omitted) (quoting
Gilbert v. Des Moines Area Cmty. Coll., 495 F.3d 906, 913 n.5 (8th Cir. 2007)));
McElroy v. State, 703 N.W.2d 385, 391 (Iowa 2005) (“Because the ICRA is in part
modeled after Title VII, we have traditionally looked to federal law for guidance in
interpreting it.”). Of course, Iowa courts are “not bound by federal law, despite consistent
utilization of the federal analytical framework” when addressing ICRA claims. Pippen v.
State, 854 N.W.2d 1, 18 (Iowa 2014) (quoting Pecenka v. Fareway Stores, Inc., 672
N.W.2d 800, 803 (Iowa 2003)). “The bottom line is that [the ICRA] is a source of law
independent of [Title VII].” Id. at 30. As such, Iowa courts will deviate from federal law
if it construes Title VII’s protections in a manner that is inconsistent with the ICRA’s
command that it be “construed broadly.” See id. at 28-30.
The Iowa Supreme Court has long held that, to establish causation for a retaliation
claim under the ICRA, the plaintiff must show that the protected activity was “a
‘significant factor’ motivating the adverse employment decision.” Hulme v. Barrett, 480
N.W.2d 40, 42 (Iowa 1992) (internal quotation marks omitted); accord City of Hampton
v. Iowa Civil Rights Comm’n, 554 N.W.2d 532, 536 (Iowa 1996). Since Hulme and City
of Hampton were decided, the Supreme Court of the United States has definitively held that
but-for causation is the appropriate causation standard for retaliation claims under Title
VII. See Nassar, 133 S. Ct. at 2528 (“Title VII retaliation claims must be proved
according to traditional principles of but-for causation . . . .”). If the Iowa Supreme Court
were to interpret the ICRA in absolute unison with federal interpretations of Title VII, then
but-for causation would apply to ICRA retaliation claims in light of Nassar. However, as
noted above, Iowa courts do not interpret the ICRA in such a lock-step fashion. Although
it does not appear that the Iowa Supreme Court has addressed Nassar’s impact on ICRA
retaliation claims, the court considers Hulme and City of Hampton to remain good law for
two reasons. First, in Hulme, the Iowa Supreme Court adopted the “significant factor”
standard for ICRA retaliation claims despite the Eighth Circuit’s long-time use of a
standard equivalent to but-for causation in Title VII retaliation cases. See Womack v.
Munson, 619 F.2d 1292, 1297 (8th Cir. 1980) (“[T]he employer may not be liable if the
discharge would have taken place even in the absence of the protected activity.” (emphasis
added)). It is therefore clear that the Iowa courts affirmatively chose the “significant
factor” standard over the but-for standard. Second, because the “significant factor”
standard is more lenient than the but-for standard, it more closely adheres to the ICRA’s
statutory command that its protections “be construed broadly to effectuate its purposes.”
Iowa Code § 216.18(1); see also Pippen, 854 N.W.2d at 28-30. Therefore, in the absence
of Iowa case law abandoning the “significant factor” standard, the court will proceed to
apply the “significant factor” standard from Hulme and City of Hampton when addressing
Jensen’s claim under the ICRA.4
The court is unpersuaded by Jensen’s claim that the “motivating factor” standard
applies to ICRA retaliation. Jensen argues that, because the Iowa Supreme Court has
applied the “motivating factor” standard when addressing ICRA discrimination cases, it
follows that it must apply the same standard to ICRA retaliation cases. See Resistance at
16. Such argument improperly conflates discrimination and retaliation claims. It is true,
as Jensen states, that the ICRA’s discrimination and retaliation provisions both use the
word “because.” See id. (comparing Iowa Code § 216.11(2) and § 216.6(1)(a)).
However, it does not necessarily follow that both ICRA provisions utilize the same
causation standard. Despite the use of the word “because” in both provisions, the Iowa
Supreme Court has explicitly applied the “significant factor” standard to ICRA retaliation
claims, see Hulme, 480 N.W.2d at 42, and has applied the “motivating factor” standard
to ICRA discrimination claims, see Deboom v. Raining Rose, Inc., 772 N.W.2d 1, 9, 1213 (Iowa 2009) (identifying “motivating factor” as the causation standard in ICRA
discrimination cases). Like the Iowa Supreme Court’s interpretation of the two ICRA
provisions, Title VII also applies distinct causation standards for discrimination and
B. Causal Connection
IOC does not dispute that Jensen’s complaint against Jaramillo was protected
conduct or that her termination was an adverse employment action. See Brief in Support
of Motion (docket no. 18-3) at 6 (arguing solely that Jensen’s “retaliation claim fails
because she cannot establish any causal connection between her protected activity and her
termination”). Therefore, the only factor in dispute with respect to Jensen’s prima facie
showing of retaliation is whether there was a causal connection between the harassment
complaint and her termination.
1. Title VII but-for causation
As discussed above, in a Title VII retaliation claim, “to show a causal connection,
a plaintiff must show that her protected activity was a but-for cause of her employer’s
adverse action.” Shirrell, 793 F.3d at 888 (citing Nassar, 133 S. Ct. at 2534).
Direct evidence of [but-for] causation is rarely available, but
an inference of causation may be established through indirect
evidence, such as the closeness of time between the protected
and adverse actions. The more time that elapses between the
two events, however, the weaker the inference of causation.
Any inference of causation evaporates if the adverse action
occurs months after the protected activity. In such cases a
plaintiff must present additional evidence of a causal link,
which can include “escalating adverse and retaliatory action.”
retaliation claims. Compare 42 U.S.C. § 2000e-2(m) (discrimination provision, stating
that “an unlawful employment practice is established when the complaining party
demonstrates that race, color, religion, sex, or national origin was a motivating factor for
any employment practice, even though other factors also motivated the practice” (emphasis
added)), with 42 U.S.C. § 2000e-3(a) (retaliation provision, lacking an express
“motivating factor” standard). In light of the divergent Iowa case law on retaliation and
discrimination claims, and the fact that Title VII likewise creates separate causation
standards for each claim, the court does not find that the use of distinct standards is so atodds with the text of the ICRA to suggest that the Iowa Supreme Court has overruled
Hulme sub silentio.
Robinson v. Am. Red Cross, 753 F.3d 749, 756 (8th Cir. 2014) (internal citations omitted)
(quoting Tyler v. Univ. of Ark. Bd. of Trs., 628 F.3d 980, 986-87 (8th Cir. 2011)). A
plaintiff may also raise an inference of causation by showing that the managers responsible
for terminating her previously knew of, but nevertheless refused to investigate, complaints
made by the plaintiff. See Sayger v. Riceland Foods, Inc., 735 F.3d 1025, 1032-33 (8th
Initially, the court notes that there was an approximately five-month gap between
Jensen’s harassment complaint in late-March of 2011 and her termination in late-August
of 2011. Because “the adverse action occur[red] months after the protected activity,” the
temporal proximity between the events raises no meaningful inference of causation.
Robinson, 753 F.3d at 756. Therefore, Jensen “must present additional evidence of a
causal link.” Id.
Jensen argues that the following evidence raises the requisite inference of causation:
(1) Jensen was “targeted” and increasingly scrutinized after Jaramillo was terminated, and
Stanford and Taylor were aware of that fact, see Resistance at 4-6; and (2) IOC’s “official
reason” for Jensen’s termination, as reflected in the termination report, was based on an
inaccurate description of the facts, see id. at 6-9.
Targeting and increased scrutiny
The record establishes that, after Jaramillo was fired as the result of Jensen’s
complaint, Jensen heard rumors that she was being “targeted by co-workers,” her
performance was increasingly scrutinized and Stanford and Taylor warned Jensen that coworker retaliation was possible. Jensen Appendix at 22-23 (Jensen Declaration); IOC
Appendix II at 9-10, 15 (Stanford and Taylor deposition testimony).
approximately two and a half months after Jaramillo’s termination, Jensen received a
written coaching for conduct involving George, who was a “good friend” of Jaramillo’s.
Jensen Appendix at 8 (Jensen deposition testimony). This evidence is insufficient to create
a genuine dispute with respect to causation.
The written coaching involving George is the only specific instance that Jensen
points to as evidence that she was “targeted.” As such, it does not evince any “pattern”
of action taken against Jensen. See Heaton v. The Weitz Co., Inc., 534 F.3d 882, 888 (8th
Cir. 2008). Also, notably, Jensen does not dispute the facts underlying the written
coaching, but merely insinuates that George would not have reported her to management
if she had not complained against Jaramillo. See Jensen Appendix at 8 (Jensen deposition
testimony stating that “the fact that [George complained] in the first instance was as a
result of the issue with [Jaramillo]”). The fact that Jensen was disciplined for conduct that
she actually engaged in does not generate an inference of causation. See Littleton v. Pilot
Travel Ctrs., LLC, 568 F.3d 641, 645 (8th Cir. 2009) (“[T]he anti-discrimination statutes
do not insulate an employee from discipline for violating the employer’s rules or disrupting
the work-place.” (alteration in original) (quoting Griffith v. City of Des Moines, 387 F.3d
733, 738 (8th Cir. 2004))). Most importantly, the fact that George was a “good friend”
of Jaramillo’s is irrelevant to the retaliation analysis. There is no evidence that George
himself had authority to take any adverse employment action against Jensen. George did
not issue the written coaching, Taylor did. See IOC Appendix I at 31. Likewise, George
did not terminate Jensen, Taylor and Stanford did. Evidence that George “targeted”
Jensen or otherwise harbored ill will toward her as a result of her complaint against
Jaramillo is insufficient to raise a genuine issue of material fact where, as here, entirely
different actors were responsible for the adverse action allegedly caused by Jensen’s
protected activity. Furthermore, even if George could be viewed to have had a decisive
role in the written coaching simply by complaining to management, Jensen does not argue
that her written coaching was itself an adverse employment action caused by her protected
conduct,5 but instead makes such argument with respect to her termination.
Jensen has presented no evidence that any person involved with her termination was
connected to Jaramillo or otherwise “targeted” her or harbored retaliatory animus from
which to infer causation. Jensen describes Stanford and Taylor as her “supporters” at all
times prior to her termination, Jensen Appendix at 25 (Jensen Declaration), and testifies
that she detected no retaliatory animus from them, id. at 13-14 (Jensen deposition
testimony). Indeed, Stanford was involved with the investigation and termination of
Jaramillo, IOC Appendix at 63, and both Stanford and Taylor affirmatively instructed
Jensen to report to them if she experienced any retaliation from her co-workers, IOC
Appendix II at 9-10, 15 (Stanford and Taylor deposition testimony). The evidence thus
makes clear that Stanford and Taylor—the managers responsible for her termination—had
no retaliatory animus resulting from Jensen’s complaint against Jaramillo. Jensen’s
attempts to assign retaliatory animus to Stanford and Taylor rely solely on speculation and
a subjective belief that she developed only after her termination—neither of which
generates a genuine dispute with respect to causation. See, e.g., Gibson v. Am. Greetings
Corp., 670 F.3d 844, 857 (8th Cir. 2012) (“A party’s unsupported self-serving allegation
that her employer’s decision was based on retaliation does not establish a genuine issue of
To the extent Jensen’s briefing can be interpreted to argue that the written
coaching was a materially adverse employment action caused by her complaint against
Jaramillo, such argument fails. “A materially adverse action is one that would have
‘dissuaded a reasonable worker from making or supporting a claim of discrimination.’”
Hervey v. Cty. of Koochiching, 527 F.3d 711, 722 (8th Cir. 2008) (quoting Burlington N.
& Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)). A materially adverse action must
produce some level of injury or harm. See AuBuchon v. Geithner, 743 F.3d 638, 644 (8th
Cir. 2014) (listing various employment actions that are not materially adverse). Here,
there is no evidence in the record that Jensen experienced any employment injury or harm
as a result of the written coaching. Indeed, Jensen does not even remember receiving the
written reprimand, which reasonably suggests that no injury or harm occurred. See Jensen
Appendix at 9 (Jensen deposition testimony that she “do[es]n’t remember” being “written
up” based on George’s complaint).
material fact.” (quoting Jackson v. United Parcel Serv., Inc., 643 F.3d 1081,1088 (8th
Cir. 2011))). Likewise, to the extent Nyland can be viewed to have had a decisive role
in Jensen’s termination simply by complaining to management, there is no evidence in the
record that Nyland had any friendship or other relationship with Jaramillo to raise any
inference that her complaint was motivated by the “targeting” or retaliatory animus that
Jensen attributes to certain other co-workers.6
In sum, the evidence that Jensen has put forth with respect to being targeted and
increasingly scrutinized is non-specific and cannot be attributed to the relevant players
involved with her termination. Viewed in the light most favorable to Jensen, the evidence
establishes that certain co-workers—only two of whom Jensen identifies by name, see
Jensen Appendix at 12-13—took a less-favorable view of her after Jaramillo was
terminated and that they began to circulate rumors. However, there is no direct or
circumstantial evidence that Stanford and Taylor, or even Nyland, were included in the
group of unnamed co-workers that took issue with Jaramillo’s termination. Therefore,
Jensen’s evidence of targeting and increased scrutiny of her job performance fails to raise
any inference of causation and fails to generate a genuine issue of material fact.
Inaccuracy on termination report
Following his investigation into Nyland’s complaint, Stanford concluded that Jensen
spoke with Nyland about her relationship after Taylor ordered her not to do so. IOC
Appendix I at 38 (Stanford deposition testimony). The termination report prepared by
Taylor conforms to Stanford’s conclusions and cites “[i]nsubordination” as the “[t]ype of
[e]vent” prompting termination. See id. at 59. Jensen argues that she never had a second
Like Jensen and Stanford, Nyland was aware that Jaramillo was well-liked by his
co-workers. See Jensen Appendix at 17 (Nyland deposition testimony); see also IOC
Appendix I at 18 (Jensen deposition testimony); IOC Appendix II at 10 (Stanford
deposition testimony). However, nothing in the record indicates that Nyland was friendly
conversation with Nyland after Taylor ordered her not to do so, such that the investigation
and termination report were inaccurate. See Resistance at 8 (citing Nyland’s deposition
testimony appearing at IOC Appendix I at 55).
Jensen argues that the purported
inaccuracy in the termination report was a purposeful “false reason for . . . Jensen’s
termination,” which Stanford and Taylor created to “cover for a true, retaliatory motive
for . . . Jensen’s termination.” Id. at 6.
Viewed in the light most favorable to Jensen, there is a factual dispute as to whether
the termination report accurately reflected Jensen’s subsequent conduct toward Nyland.
There is evidence that Jensen had one conversation with Nyland where she criticized
Nyland’s relationship. See IOC Appendix I at 52 (Nyland deposition testimony). After
this conversation, Jensen discussed Nyland’s relationship with Taylor, at which point
Taylor told her not to have future conversations with Nyland about her relationship.
Jensen Appendix at 4, 24 (Jensen deposition testimony and Jensen Declaration). Nyland
testified that there was never a second conversation where Jensen criticized her
relationship, but that there was a second conversation where Jensen informed Nyland that
she asked Taylor and Kozelka to intervene in the relationship. See IOC Appendix I at 5556 (Nyland deposition testimony). Despite arguing in the Resistance that there was never
any second conversation with Nyland, Jensen acknowledges that there was in fact a second
conversation. See Jensen Appendix at 25 (Jensen Declaration). However, Jensen disputes
that the second conversation occurred as Nyland describes, and instead claims that she
merely told Nyland about Nyland’s partner’s reaction to hearing what Jensen said about
him and that she then told Nyland that she could not discuss Nyland’s relationship any
further. See id. The termination report is consistent with Nyland’s version of the second
conversation. See IOC Appendix I at 59. Thus, viewing this evidence in the light most
favorable to Jensen, Jensen was terminated for a second conversation with Nyland and a
second conversation did in fact occur, but there is a factual dispute as to whether the
termination report accurately states the subject of the second conversation.
However, this factual dispute is immaterial. Even assuming that Stanford and
Taylor got the facts wrong when deciding to terminate Jensen, this does not, without more,
raise an inference of causal connection. “[F]ederal courts do not serve as ‘super-personnel
departments,’ sitting in judgment of an employer’s business decisions,” absent evidence
that such decisions were unlawfully motivated. Anderson v. Durham D & M, L.L.C., 606
F.3d 513, 522 (8th Cir. 2010) (quoting Hutson v. McDonnell Douglas Corp., 63 F.3d 771,
781 (8th Cir. 1995)). “[E]vidence must do more than raise doubts about the wisdom and
fairness of the supervisor’s opinions and actions. It must create a real issue as to the
genuineness of the supervisor’s perceptions and beliefs.” Cty. of Koochiching, 527 F.3d
Where an employer terminates an employee in reasonable reliance on an
investigation into a complaint against the employee, there will be no inference of
retaliation. See Littleton, 568 F.3d at 645.
There is no evidence in the record that undermines the genuineness of Stanford and
Taylor’s understanding of Jensen’s subsequent actions toward Nyland. The evidence
establishes that Stanford investigated Nyland’s complaint by taking statements from various
people involved, including Nyland and Kozelka. And, while Jensen claims that Stanford
did not approach her about her conversation with Nyland, Jensen Appendix at 26 (Jensen
Declaration), she does concede that he approached her about her conversation with Taylor,
id. at 5 (Jensen deposition testimony). Jensen does not point to any evidence that the
investigation was conducted in bad faith. Likewise, she does not point to any evidence that
Taylor’s reliance on Stanford’s investigation was unreasonable. Even viewed in the light
most favorable to Jensen, the evidence does not directly or circumstantially generate a
genuine dispute as to any retaliatory motive behind Stanford and Taylor’s alleged
misunderstanding of events or the purported factual inaccuracy included in the termination
report. Instead, the evidence simply reflects that Stanford and Taylor credited Nyland’s
version of events over Jensen’s.7 Jensen’s argument that the inaccuracy was a purposeful
cover-up of Stanford and Taylor’s retaliatory motives is purely speculative and, as such,
does not generate a genuine issue of material fact. See Barber v. C1 Truck Driver
Training, LLC, 656 F.3d 782, 801 (8th Cir. 2011).
Jensen also argues that the fact that she was terminated at all raises an inference of
causation because she was terminated without “progressive discipline,” and it would make
“no logical sense” to be terminated for the Nyland incident without first receiving
additional warnings. Resistance at 13. The fact that IOC terminated Jensen, rather than
issuing her a warning, does not generate a genuine dispute as to causation.
performance document form used by IOC includes check-boxes for multiple degrees of
discipline, including various levels of warnings and suspension. See IOC Appendix I at
59. However, the fact that multiple degrees of discipline are contemplated by the form
is not evidence that IOC had any policy requiring progressive discipline. Jensen points to
no evidence that such a policy exists and, to the contrary, IOC’s standards of conduct
expressly states that employees “will be subject to disciplinary action up to and including
termination” for insubordination. Id. at 28. Likewise, in Jensen’s previous written
warning for insubordination toward Nyland in March of 2011, she was informed that the
consequences of “uncorrected behavior” may include termination. Id. at 30. Therefore,
there is no evidence of a progressive discipline policy and, even if there was, Jensen has
offered no evidence that IOC treated her differently than other employees when it
terminated her in contravention of the policy. Cf. Dixon v. Pulaski Cty. Sch. Dist., 578
F.3d 862, 871 (8th Cir. 2009) (concluding that an employer’s violation of its own policy
does not support a showing of Title VII pretext if it affects all employees), abrogated on
In any event, even if Stanford and Taylor credited Jensen’s version of the second
conversation, they could have nonetheless reasonably determined that the conversation was
insubordinate, given that it implicated Jensen’s prior criticisms of Nyland’s relationship.
other grounds by Torgerson, 643 F.3d 1031.8 Lacking any evidence to undermine the
genuineness of Stanford and Taylor’s belief that Jensen’s insubordination warranted
termination, Jensen fails to raise any inference of causation and fails to generate a genuine
issue of material fact.
Jensen has put forth insufficient evidence to show any causal link between her
protected conduct and her termination and, as a result, has failed to generate a genuine
issue of material fact as to whether her protected conduct was the but-for cause of her
termination. The record, taken as a whole, could not lead a rational trier of fact to find
in Jensen’s favor on her Title VII retaliation claim. Accordingly, the court shall grant the
Motion with respect to the Title VII claim.
ICRA “significant factor” causation
Although it is a more lenient standard than but-for causation, the “significant factor”
standard poses a “high” hurdle nonetheless. See Hulme, 480 N.W.2d at 42. To show that
protected activity was a significant factor in an adverse employment decision, a plaintiff
must show “more than a ‘causal link.’” City of Hampton, 554 N.W.2d at 536 (quoting
Polk v. Yellow Freight Sys., Inc., 801 F.2d 190, 199 (6th Cir. 1986)). The plaintiff must
“proffer evidence ‘sufficient to raise the inference that her protected activity was the likely
reason for the adverse action.’” Zanders v. Nat’l R.R. Passenger Corp, 898 F.2d 1127,
1135 (6th Cir. 1990) (applying “significant factor” standard to Title VII retaliation claim).
As discussed above, Jensen has put forth insufficient evidence to infer any causal
link between her protected conduct and her termination and, as a result, has put forth
insufficient evidence that there was “more than a causal link” between the two or that the
protected activity was “the likely reason” for her termination. Therefore, Jensen has failed
to generate a genuine issue of material fact as to whether her protected activity was a
Under Dixon, any argument that IOC’s non-adherence to progressive discipline
supports a showing of pretext also fails.
“significant factor” in her termination. The record, taken as a whole, could not lead a
rational trier of fact to find in Jensen’s favor on her ICRA retaliation claim. Accordingly,
the court shall grant the Motion with respect to the ICRA claim.
If a plaintiff can establish a prima facie case of retaliation, the burden then shifts to
the defendant to articulate a “legitimate, nonretaliatory reason” for the adverse
employment action, “which the plaintiff must then show was only a pretext for
discrimination.” Blackwell v. Alliant Techsystems, Inc., 822 F.3d 431, 436 (8th Cir.
2016).10 “There are at least two routes for demonstrating a material question of fact as to
pretext: first, a plaintiff may succeed indirectly by showing the proffered explanation has
no basis in fact; or, second, a plaintiff can directly persuade the court that a prohibited
reason more likely motivated the employer.” Gibson v. Geithner, 776 F.3d 536, 540 (8th
Cir. 2015). A plaintiff must show not only that the employer’s proffered reason is pretext,
but that it is pretext for retaliation—that is, that the employer’s stated reason for
terminating the plaintiff is false and the true reason is retaliation. See Dixon, 578 F.3d at
872 (applying such pretext analysis in the context of Title VII discrimination).
IOC states that it terminated Jensen because her conduct toward Nyland was
insubordinate. This states a legitimate and nonretaliatory reason for Jensen’s termination.
See Wallace v. Sparks Health Sys., 415 F.3d 853, 860 (8th Cir. 2005) (“The employer’s
burden is not onerous . . . .”). Jensen argues that IOC’s proffered reason is pretext both
Although Jensen has failed to raise a genuine issue of material fact with respect
to causation on her Title VII and ICRA retaliation claims, and although the Motion shall
be granted on those grounds, the court will nevertheless proceed to address the issue of
Neither party argues that pretext is analyzed differently under the ICRA and Title
VII. Therefore, on the issue of pretext, the court shall apply Title VII’s analytical
framework to both claims. See Banks, 829 F.3d at 665 n.4.
because it has no basis in fact and because a retaliatory reason more likely motivated the
decision to terminate. See Resistance at 9-11.
In arguing that IOC’s proffered reason is pretext, Jensen relies on her prior
argument that Stanford and Taylor were factually incorrect about the events surrounding
Jensen’s conversation with Nyland. See id. Jensen further points to evidence that the
disciplinary termination report states that it was prepared on August 26, 2011, but she was
informed on August 27, 2011 that the investigation remained ongoing and she was not
terminated until August 30, 2011. Id. at 10. Jensen contends that this chain of events,
bolstered by the fact that her official termination notice was effective as of August 26,
2011, establishes that there was no investigation into Jensen’s conduct before she was
terminated. Id. As such, Jensen argues that IOC’s claim that Jensen was terminated due
to insubordination has no basis in fact. Additionally, according to Jensen, the purported
lack of investigation, combined with the “targeting” and increased scrutiny of her job
performance, makes it “implausible” that her termination was motivated by anything
except retaliation. Id. at 11.
The factual dispute as to whether Stanford and Taylor were incorrect about the
events motivating their decision to terminate Jensen, noted above, does not generate a
genuine issue of material fact as to whether their decision to terminate her was pretextual
as having no basis in fact. The “essential question” is not whether the facts actually raised
proper grounds to terminate Jensen, but rather whether Stanford and Taylor honestly and
reasonably believed they had proper grounds to terminate Jensen. See Dixon, 578 F.3d
at 869. Thus, even if Stanford and Taylor were incorrect, and even if an accurate
understanding of events may not have shown Jensen to be insubordinate, Jensen has
pointed to no evidence in the record suggesting that Stanford and Taylor did not honestly
believe she had been insubordinate. See, e.g., Johnson v. AT&T Corp., 422 F.3d 756,
762-63 (8th Cir. 2005) (termination based on employer’s honest belief that employee made
bomb threats is not pretext “even if [the employer] had no solid proof that [the employee]
made the bomb threats, and even if [the employer] was mistaken in its belief that [the
employee] had made the threats”); Hitt v. Harsco Corp., 356 F.3d 920, 924 (8th Cir.
2004) (“The key question in a . . . case like this one is not whether [the employee] was
truly fighting, but whether the employer really believed that he was fighting, such that the
termination was based on a non-discriminatory reason.”). Even affording Jensen all
reasonable inferences by assuming that the investigation concluded on August 26, 2011,
such evidence does not establish that there was no investigation. Instead, it establishes that
the investigation lasted only three days: from August 24 (when Nyland submitted her
complaint) through August 26.
The fact that Stanford investigated the incident by
soliciting statements from Jensen, Nyland and Kozelka supports a conclusion that Stanford
and Taylor honestly believed that Jensen was insubordinate. See Hitt, 356 F.3d at 924
(eyewitness reports to an employer support conclusion that employer had honest belief
about the reported incident). That the investigation lasted for three days rather than for
some longer duration does not undermine the honesty of Stanford and Taylor’s belief.
Therefore, Jensen has not put forth evidence that IOC’s proffered reason has no basis in
Jensen’s argument that retaliation was the more likely reason for her termination
also fails. The “context” that Jensen describes to support this argument includes the
rumors and increased scrutiny of her job performance after her complaint against
Jaramillo, as well as the purportedly “sloppy” investigation of the facts resulting in her
termination. See Resistance at 10-11. However, as described above, Jensen has put forth
termination—harbored any retaliatory animus to permit an inference that a retaliatory
motive is a more likely reason than the proffered legitimate motive. After Jaramillo’s
termination, Stanford and Taylor indicated that they would not tolerate retaliation. IOC
Appendix II at 9-10, 15. The allusions to “targeting” that appear in the record do not
implicate Stanford or Taylor (or even Nyland), but instead implicate two other co-workers
and a series of others that Jensen cannot specifically identify. The record is wholly devoid
of any evidence of retaliatory motivation as to Stanford or Taylor. Therefore, Jensen has
not put forth evidence that retaliation more likely motivated her termination such that
IOC’s proffered explanation is pretext.
Accordingly, the court finds that, even if Jensen had satisfied her prima facie case,
she has failed to generate a genuine issue of material fact as to pretext. The record taken
as a whole cannot lead a rational trier of fact to find in Jensen’s favor on her Title VII and
ICRA retaliation claims. Therefore, the court shall grant the Motion with respect to the
Title VII and ICRA retaliation claims.
In light of the foregoing, the court ORDERS as follows:
IOC’s Motion to Strike (docket no. 30) is GRANTED IN PART and
DENIED IN PART.
Jensen’s Motion to Strike (docket no. 33) is GRANTED. The Clerk of
Court is DIRECTED to STRIKE IOC’s Reply to Jensen’s Response to
IOC’s Statement of Facts (docket no. 27-3).
IOC’s Motion for Summary Judgment (docket no. 18) is GRANTED.
The Clerk of Court is DIRECTED to enter judgment in favor of Defendant. The
trial date is VACATED.
IT IS SO ORDERED.
DATED this 17th day of October, 2016.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?