Case 3:03-cv-10062-REL-RAW Document 1 Filed 06/17/03 Page 1 of 20

~,! """-'n

-

~ - , ' .~

IN THE UNITED STATES DISTRICT C~llsu,r:D, Il

FOR THE SOUTHERN DISTRICT OF IOWA

DAVENPORT DMSION lGQ) JUi'l 11 A II: 414

DAVID A. JOHNSON, on his own behalf and on behalf of all others similarly situated,
PLAINTIFF,

~di~c&3rCV 10 0 62

VS.
UNIVERSITY OF IOWA, STATE BOARD OF REGENTS, DAVID J. SKORTON, M.D., in his official capacity, DOUGLAS K. TRUE, in his official capacity, and SUSAN C. BUCKLEY, in her official capacity,

COMPLAINT

DEFENDANTS.

COMES NOW Plaintiff DAVID A. JOHNSON, (sometimes, hereinafter, "Mr.

Johnson") by and through his attorney, James C. Larew, and for his causes of

action against the above-named Defendants, states to the Court as follows:

I. NATURE OF THE ACTION

1) This is a civil action in which Plaintiff, David A, Johnson, on his own

behalf and on behalf of all others similarly situated, alleges that Defendant

University of Iowa and Defendant State Board of Regents, the governing agency

over the University of Iowa, in their respective capacities as his employers,

violated Mr. Johnson's right to be free from discrimination based upon sex or

\

gender, in the manner set forth below, in violation of the Civil Rights Act of 1964 and its subsequent amendments, including the Civil Rights Act of 1991,

Case 3:03-cv-10062-REL-RAW Document 1 Filed 06/17/03 Page 2 of 20
codified in part at 42 U.S.C. Section 2000e et seq. (hereinafter "Title VII"). Mr. Johnson additionally asserts that Defendants David J. Skorton, M.D., Douglas K. True and Susan C. Buckley, in their respective official capacities, violated Mr. Johnson's right to be free from discrimination based upon sex or gender, in the manner set forth below, in violation of 42 U.S.C. Section 1983, guaranteeing equal protection under the law pursuant to the Fourteenth Amendment to the Constitution of the United States of America.
2) On December 9,2002, Mr. Johnson filed a claim of unlawful sexbased discrimination with the Iowa Civil Rights Commission, which agency cross-filed said claim with the Federal Equal Employment Opportunity Commission. On April 14,2003, the Equal Employment Opportunity Commission issued to Mr. Johnson a Notice of Right to Sue, granting him ninety (90) days in which to file suit in Federal court. A copy of the Plaintiffs "Notice of Right to Sue Within 90 Days" issued by the Equal Employment Opportunity Commission is attached hereto and is incorporated herein as Exhibit "A".
II. THE PARTIES 3) Mr. Johnson brings this action on behalf of himself and as a class action, pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure, and Local Rule 23.1, on behalf of all male persons who have been, who are, or who may in the future become biological fathers and who have been, who are, or who may in the future become subject to, as employees of the University of
2

Case 3:03-cv-10062-REL-RAW Document 1 Filed 06/17/03 Page 3 of 20
Iowa, the institution's Parental Leave Policy, pursuant to Operations Manual Section 22.8.
4) There are common questions of law and fact affecting the rights of the members of this class who are, and continue to be, limited, classified and discriminated against in ways which violate Title VII and the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States of America pursuant to 42 U.S.C. Section 1983.
5) These common questions predominate over any questions affecting only individual members of this class.
6) The interests of said class are adequately represented by Mr. Johnson and Mr. Johnson's claims are typical of those of the class as whole. Defendants may, in their answer and defense, act upon grounds generally applicable to the class.
7) Under the circumstances giving rise to this action, the common interest of the individual members of the class is completely outweighed by the desirability of concentrating the controversy in a single forum, and a class action is superior to any other available method for the fair and efficient adjudication of this controversy.
8) The action raises common issues of law and fact affecting the right of men who have been, who are, or who may become biological fathers to be free from gender-based discrimination in the provision of benefits and privileges of employment at the University of Iowa.
3

Case 3:03-cv-10062-REL-RAW Document 1 Filed 06/17/03 Page 4 of 20
9) The interests of Mr. Johnson in this action do not conflict with the interests of any other member of the class. Furthermore, Mr. Johnson has retained counsel to represent the interests of the class in this action and has funds available to meet the litigation expenses that will be incurred as a result of this action. Mr. Johnson, as representative of the class, will therefore adequately and fairly protect the interests of the class.
10) At all times relevant hereto Mr. Johnson, as representative of the class, was a citizen of the United States of America and a resident of the State of Iowa.
11) Defendant University of Iowa, was, at all times relevant hereto, a public educational institution of the State of Iowa.
12) Defendant State Board of Regents was at all times relevant hereto, a state agency of the State of Iowa with responsibility for the governance of Defendant University of Iowa.
13) Defendants David J. Skorton, M.D., President of the University of Iowa, Douglas K. True, Vice President for Finance & Operations and Treasurer of the University of Iowa, and Susan C. Buckley, Associate Vice President, Department of Human Resources of the University of Iowa, each had responsibilities, at all relevant times hereto, as administrative officers of Defendant University of Iowa, to assure that the rules, procedures and policies governing employee benefits at Defendant University of Iowa were consistent and rational, were applied to all employees in a fair and rational manner, and
4

Case 3:03-cv-10062-REL-RAW Document 1 Filed 06/17/03 Page 5 of 20
were in conformity with the laws of the. State ofIowa and the laws of the United States of America.
III. VENUE 14) Plaintiff David A. Johnson, resides in Iowa City, Johnson County, Iowa. 15) All Defendants have offices in and transact business in Iowa City, Johnson County, Iowa. 16) Venue in Davenport, Iowa, within this District, is appropriate pursuant to Title 28 U.S.C. Section 1391 and Local Rule 3.1.
IV. JURISDICTION 17) This Court has jurisdiction of this complaint pursuant to 28 U.S.C. Section 1331, vesting jurisdiction in Federal District Courts over actions brought to recover damages under any act of Congress providing for the protection of civil rights, and 28 U.S.C. 1441, vesting jurisdiction of Federal District Courts over actions brought under the Constitution and laws of the United States of America.
V. THE FACTS 18) Mr. Johnson is a male, legally married, non-union, merit staff employee of the University of Iowa. He is a veteran of the United States Army, having honorably served in the Desert Storm conflict in his capacity as a Mission Specialist with a Hawk Missile Crew.
5

Case 3:03-cv-10062-REL-RAW Document 1 Filed 06/17/03 Page 6 of 20
19) Mr. Johnson became employed with Defendant University of Iowa, on June 1, 2000. At all times material hereto he has served in its Office of Registrar, in the capacity as a Clerk IV. His terms of employment include his ability to accrue paid sick leave.
20) Defendant University of Iowa publishes in its Operations Manual certain policies and rules that define its obligations as an employer and the rights and duties of its employees. As a part of its Operations Manual, at Chapter 22, Defendant University of Iowa articulates its policies regarding the absences of all staff members whose employment contract terms are not subject to collective bargaining agreements. As a part of that overall policy, at Section 22.8, the institution has established what it describes as its "Parental Leave Policy" that includes, in relevant part, the following terms and conditions:
22.8 PARENTAL LEAVE POLICY a. Purpose. To permit parents who have care giving responsibilities to have time offto spend with a child newly added to the family and, to the extent permitted by state law, to be paid during such leave. To adapt an employee's work schedule and/or duties to help reduce conflict with parental obligations. b. Entitlement to Leave.
(1) Twelve-Month Faculty, Professional, Scientific, and NonOrganized Merit System Staff.
(a) Biological mothers are entitled to leave for any period of pregnancy-related temporary disability, to be charged against sick leave. Based on current medical practice, a leave of six weeks or less would not require the employee to provide disability documentation. If an employee's accumulated sick leave is insufficient to
6

Case 3:03-cv-10062-REL-RAW Document 1 Filed 06/17/03 Page 7 of 20
cover the period of disability, the employee will, at the employee's request, be granted a leave of absence without pay. Any request for absence beyond the period of disability is considered as a leave of absence without payor as vacation.
(b) A newly adoptive parent, including a domestic partner, is entitled to one week (5 days) of paid adoption leave to be charged against accrued sick leave. Departments are encouraged to arrange for additional leave as necessary. Departments should work with prospective adoptive parents seeking to adopt through an adoption agency with specific requirements for parental leave, to the extent the adoption leave is not sufficient to undertake an adoption. Time not charged to accrued sick leave may be charged to accrued vacation or taken as leave without pay.
(emphasis added).
21) By October, 2002, Mr. Johnson had accrued more than forty hours of
paid sick leave. In that month, Mr. Johnson's spouse gave birth and the two of
them became the parents of their first child.
22) In conjunction with the anticipated birth of his biological son,
pursuant to the Parental Leave Policy, as set for in Defendant University of
Iowa's Operations Manual, Mr. Johnson was denied the right to apply for paid
parental leave, that is, as a parent-employee, to apply five days (equivalent to
forty hours) of his accrued sick leave towards a parental leave of absence to
assist his spouse in caring for their new child.
23) Defendant University of Iowa denied Mr. Johnson's eligibility for
parental leave benefits under the Parental Leave Policy due to his status as his
child's biological father. A benefits administrator with said Defendant, in an e-
mail dated October 22, 2002, formally responded to Mr. Johnson's inquiries
7

Case 3:03-cv-10062-REL-RAW Document 1 Filed 06/17/03 Page 8 of 20
and admitted that the employer deliberately denies biological fathers the benefit of any paid parental leave to care for a newborn child, paid or unpaid:
As you've noted, under the University policy adoptive parents or domestic partners (fathers and mothers) are entitled up [to] 5 days of paid adoption leave to be charged against sick leave. Biological mothers can use sick leave for up to six weeks (without disability documentation; perhaps more if there is documentation is [sic] provided and sick leave is available). Biological/athers, however, are not entitled to use sick leave to care/or a new child (other than the emergency sick leave that can be used to transport mother, and mother and child, to and from the hospital). Subject to departmental scheduling and availability, biological fathers can of course use vacation leave during this period. (emphasis added) 24) Thus, as his child's biological father, Mr. Johnson-as well as all other biological fathers who are employed by Defendant University of Iowa and whose employment terms are subject to Section 22.8 of the Operations Manual-was denied the right to apply his accrued paid sick leave to a five-day parental leave under the Parental Leave Policy although all other employee who are subject to the Policy, such as biological mothers, adoptive parents and domestic partners, are allowed such a right. 25) Mr. Johnson, believing that such a Policy, as interpreted, conflicted with the stated intentions of the Defendant University of Iowa's Parental Leave Policy as well as his contract of employment and Federal and State law, initiated further contacts with the administrators of the University of Iowa, only to find that they confirmed that the benefit administrator's interpretation and conclusions regarding the status of biological fathers under the policy correctly set forth the Defendant University of Iowa's official position.
8

Case 3:03-cv-10062-REL-RAW Document 1 Filed 06/17/03 Page 9 of 20
26) Thus, Defendant University of Iowa, via its agents, expressly and intentionally denied to Mr. Johnson the opportunity to apply his accrued sick leave towards paid parental leave to care for his newborn child on account of his status as the biological father of his child.
27) Under Defendant University of Iowa's Parental Leave Policy, all female parent-employees of the University of Iowa, without regard to their reproductive status--that is, whether biological or adoptive, whether married or unmarried or domestic partners--as well as all adoptive father-employees, are allowed by their employer to apply accrued sick leave towards paid parental leave to care for a new child.
28) By contrast, only those males who are adoptive parents are allowed by their employer to apply their accrued sick leave towards paid parental leave to care for a new child. All biological fathers are expressly precluded from applying their accrued sick leave towards paid parental leave to care for a new child.
29) Acknowledging that adoptive fathers are also men does not alter the fact that only men are excluded from receiving benefits under Defendant University of Iowa's Parental Leave Policy, nor does it mitigate the discriminatory intent evidenced by the inescapable conclusion resulting from the policy: that Mr. Johnson, but for his sex, would be entitled to use of his accrued sick leave to care for his child.
30) The policy, by its own definite terms, is not a maternity leave policy dependent upon the medical disability of a biological mother resulting from
9

Case 3:03-cv-10062-REL-RAW Document 1 Filed 06/17/03 Page 10 of 20
childbirth, but, by its very name, a Parental Leave Policy that grants parents who have care giving responsibilities time off to spend with a child newly added to the family, and provides for this leave to be paid. The policy, as self-defined, establishes a means by which parents may balance their new family and work related responsibilities.
31) Furthermore, the Family Leave Policy does not require a showing of medical disability in order to qualify for accrued sick leave benefits to care for a new child. As a result, the benefits of the policy extend to those, except for biological fathers, who do not give birth.
32) Even as it describes parental leave as a gender-neutral activity, the Parental Leave Policy, in operation, undermines, rather than effectuates, its purported and articulated purpose. For example, the terms--and telling omissions--of the Policy, specifically, the ostensible exclusion of a biological father from the definition of a "parent" under the policy, imply that biological fathers are superfluous to the care-giving responsibilities attendant to a new child. Such an exclusion tends to further the stereotypes about the roles of men and women in family life, namely that men do not take substantial part in domestic work, including childcare. These stereotypes have the effect of denying men the responsibilities and joys of parenthood and the opportunity to participate in their children'S lives, while such stereotyping also prevents women from fully realizing their potential in the workplace by disadvantaging the biological fathers of their children who desire to take on the work and time involved in childrearing, especially in the first days of a child's life. The
10

Case 3:03-cv-10062-REL-RAW Document 1 Filed 06/17/03 Page 11 of 20
cumulative effects of policies such as the Parental Leave Policy adopted by Defendant University of Iowa result in the perpetuation of women's role as the primary caretakers of children and sustain the injustice of women's double burden.
33) Furthermore, this Policy is not tailored to assure that paid leave is available to all families. The absurd--and retrograde--consequences of the policy are clearly evidenced by its complete implosion as applied to possible non-traditional families. For example, if a male employee, as a part of a committed domestic partnership, became a biological parent through surrogacy, he would be prohibited from applying his accrued sick leave towards a paid parental leave benefit upon the birth of his biological child. But, his domestic partner, if an adoptive parent, and if a University of Iowa employee subject to the Parental Leave Policy, would be allowed such use of his accrued sick leave to obtain a paid parental leave. Alternatively, if his partner were not a University oflowa employee subject to the Parental Leave Policy, this nontraditional family, which, ostensibly, is to benefit from the Policy, would be left with no access to accrued sick leave at all to care for the new child, in stark contrast to the benefits afforded new female parents in domestic partnership with a new child born to one of them biologically.
34) The only plausible explanation for this policy is an insidiously predatory one: that, for budgetary reasons, Defendant University of Iowa is attempting to deny male employees who are biological fathers from utilizing
11

Case 3:03-cv-10062-REL-RAW Document 1 Filed 06/17/03 Page 12 of 20
sick leave benefits that they have already earned. Such an explanation, if true, is as unfair as it is unlawful.
35) Defendant University of Iowa has targeted one sex-based groupbiological fathers-for systemic disparate treatment by excluding, them from benefits to which they would otherwise be entitled but for unlawful discrimination and which are conferred upon all similarly situated employees.
36) Consequently, Defendant University of Iowa has arbitrarily, capriciously and facially excluded biological fathers from a benefit--the use of accrued sick leave towards a five day paid leave to care for a new child-provided to all other employee parents of new children.
37) As a proximate cause of Defendant University of Iowa's discriminatory policy, Mr. Johnson suffered a substantial loss in employment benefits in the form of lost paid leave following the birth of his child in October 2002 for which he would have otherwise qualified if not for the unlawful discrimination of the Defendants University of Iowa, State Board of Regents, David J. Skorton, M.D., Douglas K. True and Susan C. Buckley, and has suffered and will continue to suffer mental and emotional pain as a result of the University of Iowa's unlawful discrimination against him and all others similarly situated.
38) As a proximate cause of the discriminatory Parental Leave Policy, all male employees of Defendant University of Iowa who are or who may become biological fathers will be denied the benefits of their employment under the
12

Case 3:03-cv-10062-REL-RAW Document 1 Filed 06/17/03 Page 13 of 20
Parental Leave Policy, to which, but for their sex, they would otherwise be entitled.
39) Defendant University of Iowa, unless enjoined by this court from denying to biological fathers who are subject to the Parental Leave Policy the use of accrued sick leave for paid parental leave for the care and support of new children, is likely to continue to cause Mr. Johnson, should he choose to have another child, and his family, and all other employees of Defendant University of Iowa who are subject to Operations Manual Section 22.8, and who are or may become biological fathers, and their respective family units, serious and irreparable injury and harm for which they have no plain, adequate, or complete remedy other than a suit for injunctive relief. The denial of this remedy would preclude substantial relief, and would cause Plaintiff further irreparable injury and occasion damage, vexation and inconvenience.
40) Plaintiff has attempted by all other means short of filing this lawsuit and claim for injunctive relief, to cause and allow Defendant University of Iowa and State Board of Regents, to rectify the objected-to employment policy, but without success. Only judicial intervention can assure that Mr. Johnson and others in his position-and their families-will enjoy the accrued benefits that they have earned, in a manner that will help to strengthen families and make the University of Iowa a better place to work.
13

Case 3:03-cv-10062-REL-RAW Document 1 Filed 06/17/03 Page 14 of 20
VII. CAUSES OF ACTION
Count I: Sex Discrimination in Violation of Title VII--Systemic Disparate
Treatment 41) 42 U.S.C. Section 2000e-2(a), states, in relevant part, as follows:
(a) Employer Practices. It shall be an unlawful employment practice for an employer. (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's ... sex ... ; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or other wise adversely affect his status as an employee, because of such individual's ... sex. .. .
42) Plaintiff David A. Johnson restates paragraphs 1 through 40 as if fully set forth herein.
43) Mr. Johnson is a man and was an employee of Defendant University of Iowa at the time of the birth of his child, and, therefore, is a member of a protected category of person under the statute.
44) Mr. Johnson was subject to discrimination on the basis of his sex as a result of the facial and intentional exclusion of biological fathers from benefits provided to all other employees who are parents of new children.
14

Case 3:03-cv-10062-REL-RAW Document 1 Filed 06/17/03 Page 15 of 20
45) The discrimination affected and/or altered a term, condition, or privilege of his employment by denying Mr. Johnson benefits to which he was otherwise entitled.
46) Defendants University of Iowa and State Board of Regents, through their agents, intended to exclude male employees who are parents from benefits provided to all parents of children newly added to a family and therefore knew or should have known of the discrimination and failed to take the proper remedial action.
WHEREFORE, Plaintiff David A. Johnson, individually, and on behalf of all others similarly situated as defined above, prays for declaratory, injunctive and compensatory relief against Defendants University of Iowa and State Board of Regents and demands the following:
A) that the Court declare the policy articulated in the University of Iowa Operations Manual, Section 22.8, unlawful under 42 U.S.C. 2000e et seq. and all subsequent amendments, prohibiting discrimination in employment on the basis of sex;
B) that the Court enjoin the Defendant University of Iowa and the State Board of Regents, and their agents, from continuing to discriminate on the basis of sex or in any other unlawful manner in their allowance of the use of accrued sick leave by an employee for the purpose of taking paid parental leave to care for a new child. To effectuate this injunction, Mr. Johnson prays that the Court order said Defendants to rectifY its Parental Leave Policy to conform
15

Case 3:03-cv-10062-REL-RAW Document 1 Filed 06/17/03 Page 16 of 20
with the law and provide a non-discriminatory Parental Leave Policy for employees of the University of Iowa.
C) that the Court award compensatory damages adequate to redress the lost wages and emotional injury suffered by Mr. Johnson and all others members of the class to the extent allowed by law, together with pre-judgment interest, attorney's fees and costs related to this action, as available under law, and any other additional or alternative relief that the court deems equitable and just under the circumstances.
Count II:
Sex Discrimination in Violation of Equal Protection Pursuant to 42 u.s.c
1983 47) The Constitution of The United States of America prohibits the denial of "equal protection of the laws" to any person. Section 1 of the Fourteenth Amendment provides:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person oflife, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
48) 42 U.S.C. Section 1983 provides an enforcement mechanism for the rights secured under the Constitution and laws of the United States and states:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
16

Case 3:03-cv-10062-REL-RAW Document 1 Filed 06/17/03 Page 17 of 20
49) Plaintiff David A. Johnson restates paragraphs 1 through 40 as if fully set forth herein.
50) Mr. Johnson is a citizen of the United States and, therefore, is a member of a protected category of person under the statute.
51) Mr. Johnson is a man and was an employee of Defendant University of Iowa, at the time of the birth of his child, who has accrued sick leave the equivalent of five days wages.
52) Mr. Johnson may become the biological parent of other children in the future.
53) Mr. Johnson, as a parent, is similarly situated with persons who are employees of the Defendants University of Iowa and State Board of Regents, namely all other parents of new children subject to Operation Manual Section 22.8.
54) Mr. Johnson was denied benefits which others similarly situated received.
55) Mr. Johnson has been treated differently because of his classification as a biological father under a Parental Leave Policy that denies biological fathers paid parental leave and classifies all non-recipients of paid parental leave as male, thereby facially discriminating on the basis of sex.
56) Officials of the University of Iowa knew or should have known that this discrimination violated equal protection guarantees under the law.
17

Case 3:03-cv-10062-REL-RAW Document 1 Filed 06/17/03 Page 18 of 20
57) This classification scheme does not serve an important governmental objective and therefore violates Mr. Johnson's right to equal protection under the law pursuant the Constitution of the United States.
58) To the extent that an important governmental objective may be found for the classification scheme, the discriminatory means employed by Defendants University of Iowa and State Board of Regents is not substantially related to the achievement of that objective and therefore violate Mr. Johnson's right to equal protection under the law pursuant to the Fourteenth Amendment of the Constitution of the United States of America.
59) To the extent the policy does not discriminate on the basis of sex, the classification scheme is, in any event, not rationally related to a legitimate governmental purpose, is arbitrary and capricious, and therefore violates Mr. Johnson's right to equal protection under the law pursuant to the Constitution of the United States of America.
60) Defendants David J. Skorton, M.D., Douglas K. True and Susan C. Buckley, acting under color of state law in their capacities as officials of the University of Iowa, violated Mr. Johnson's equal protection under the law by denying him, as a new parent, the use of employment benefits in the form of accrued paid sick leave, a benefit he had already earned, for the purpose of receiving a paid period of parental leave, while providing other similarly situated employees--parents of new children--the use of their accrued sick leave for the purpose of receiving a paid period of parental leave, thereby
18

Case 3:03-cv-10062-REL-RAW Document 1 Filed 06/17/03 Page 19 of 20

Dated this

I

::;.

;It.
day

of

June,

2003.

Respectfully submitted

James Larew 08533 504 E. Bloomington Street Iowa City, Iowa 52245 Phone: 319/337-7079 Fax: 319/337-7082 LarewlaW@aol.com
ATIORNEY FOR PLAINTIFF
Attached: Exhibit "A" (Equal Employment Opportunity Commission Right to Sue Letter) Original: Filed

20

Case 3:03-cv-10062-REL-RAW Document 1 Filed 06/17/03 Page 20 of 20

U.S. Department of Justice

Civil Rights Division
NOTICE OF RIGHT TO SUE WITHIN 90 DAYS

CERTIFIED MAIL
3509 0941
Mr. David A. Johnson c/o James C. Larew, Esquire Larew Law Office Attorneys at Law 504 E. Bloomington St. Iowa City, IA 52245

950 Pennsylvania A.vellue, N.W. Karen Ferguson, EMP, PHD, Room 4239 Washington. DC 20530
April 14, 2003

Re: EEOC Charge Against University of Iowa, et al.
No. 26AA300452

Dear Mr. Johnson:
-~cause-YOLL.Li.le<L.the..._"bove ch4]:,oe wi th the Equal Employment
Opportunity Commission, and the Commission has determinea: Enaf: it
will not be able to investigate and conciliate that charge within 180 days of the date the Commission assumed jurisdiction over the charge and the Department has determined that it will not file any lawsuit(s) based thereon within that time, and because you through your attorney have specifically requested this Notice, you are hereby notified that you have the right to institute a civil action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e, et seq., against the above-named respondent.
If you choose to commence a civil action, such suit must be filed in the appropriate Court within 90 days of your receipt of this Notice.
This Notice should not be taken to mean that the Department of Justice has made a judgment as to whether or not your case is meritorious.

Sincerely,

Ralph F. Boyd, Jr.
--. C-:l:/" Assi~t~~7 Att~rney ~e~eral -R-lghc8 D:tV-1BJ:-on -
by i-~. / ~v.::>d~
i \ Karen L. Fergusor:
Civil Rights Analyst Employment Litigation Section

cc: Milwaukee District Office, EEOC University of Iowa, et al.

PLAINnFF'S
I A EXHIBIT

 
 Case 3:03-cv-10062-REL-RAW Document 16 Filed 10/09/03 Page 1 of 24

DAVID A. JOHNSON, on his own behalf and on behalf of all others similarly situated,
PLAINTIFF,
VS.
UNIVERSITY OF IOWA, STATE BOARD OF REGENTS, DAVID J. SKORTON, M.D., in his official capacity, DOUGLAS K. TRUE, in his official capacity, and SUSAN C. BUCKLEY, in her official capacity,
DEFENDANTS.

•. ',J" i
CIVIL NO. 3-03 CV 10062 COMPLAINT (FIRST AMENDED)

COMES NOW Plaintiff DAVID A. JOHNSON, (sometimes, hereinafter, "Mr. Johnson") by and through his attorney, James C. Larew, and for his causes of action against the above-named Defendants, states to the Court as follows:
I. NATURE OF THE ACTION 1) This is a civil action in which Plaintiff, David A, Johnson, on his own behalf and on behalf of all others similarly situated, alleges that Defendant University of Iowa and Defendant State Board of Regents, the governing agency over the University of Iowa, in their respective capacities as his employers, violated Mr. Johnson's right to be free from discrimination based upon sex or gender, in the

Case 3:03-cv-10062-REL-RAW Document 16 Filed 10/09/03 Page 2 of 24
manner set forth below, in violation of the Civil Rights Act of 1964 and its subsequent amendments, including the Civil Rights Act of 1991, codified in part at 42 U.S.C. Section 2000e et seq. (hereinafter "Title VII"). Mr. Johnson additionally asserts that Defendants David J. Skorton, M.D., Douglas K. True and Susan C. Buckley, in their respective official capacities, violated Mr. Johnson's right to be free from discrimination based upon sex or gender, in the manner set forth below, in violation of 42 U.S.C. Section 1983, guaranteeing equal protection under the law pursuant to the Fourteenth Amendment to the Constitution of the United States of America.
2) On December 9, 2002, Mr. Johnson filed a claim of unlawful sex- based discrimination with the Iowa Civil Rights Commission, which agency cross-filed said claim with the Federal Equal Employment Opportunity Commission. On April 14, 2003, the Equal Employment Opportunity Commission issued to Mr. Johnson a Notice of Right to Sue, granting him ninety (90) days in which to file suit in Federal court. A copy ofthe Plaintiffs "Notice of Right to Sue Within 90 Days" issued by the Equal Employment Opportunity Commission is attached hereto and is incorporated herein as Exhibit "A".
II. THE PARTIES 3) Mr. Johnson brings this action on behalf of himself and as a class action, pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure, and Local Rule 23.1, on behalf of all male persons who have been, who are, or who may in the future become biological fathers and who have been, who are, or who may in the

Case 3:03-cv-10062-REL-RAW Document 16 Filed 10/09/03 Page 3 of 24
future become subject to, as employees of the University ofIowa, the institution's Parental Leave Policy, pursuant to Operations Manual Section 22.8.
4) There are common questions of law and fact affecting the rights of the members of this class who are, and continue to be, limited, classified and discriminated against in ways which violate Title VII and the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States of America pursuant to 42 U.S.C. Section 1983.
5) These common questions predominate over any questions affecting only individual members of this class.
6) The interests of said class are adequately represented by Mr. Johnson and Mr. Johnson's claims are typical of those of the class as whole. Defendants may, in their answer and defense, act upon grounds generally applicable to the class.
7) Under the circumstances giving rise to this action, the common interest of the individual members ofthe class is completely outweighed by the desirability of concentrating the controversy in a single forum, and a class action is superior to any other available method for the fair and efficient adjudication of this controversy.
8) The action raises common issues of law and fact affecting the right of men who have been, who are, or who may become biological fathers to be free from gender-based discrimination in the provision of benefits and privileges of employment at the University of Iowa.
9) The interests of Mr. Johnson in this action do not conflict with the interests of any other member of the class. Furthermore, Mr. Johnson has retained

Case 3:03-cv-10062-REL-RAW Document 16 Filed 10/09/03 Page 4 of 24
counsel to represent the interests of the class in this action and has funds available to meet the litigation expenses that will be incurred as a result of this action. Mr. Johnson, as representative ofthe class, will therefore adequately and fairly protect the interests of the class.
10) At all times relevant hereto Mr. Johnson, as representative ofthe class, was a citizen of the United States of America and a resident of the State ofIowa.
11) Defendant University ofIowa, was, at all times relevant hereto, a public educational institution of the State of Iowa.
12) Defendant State Board of Regents was at all times relevant hereto, a state agency of the State of Iowa with responsibility for the governance of Defendant University of Iowa.
13) Defendants David J. Skorton, M.D., President of the University of Iowa, Douglas K. True, Vice President for Finance & Operations and Treasurer of the University ofIowa, and Susan C. Buckley, Associate Vice President, Department of Human Resources of the University ofIowa, each had responsibilities, at all relevant times hereto, as administrative officers of Defendant University of Iowa, to assure that the rules, procedures and policies governing employee benefits at Defendant University of Iowa were consistent and rational, were applied to all employees in a fair and rational manner, and were in conformity with the laws of the State ofIowa and the laws of the United States of America.
III.
VENUE
14) Plaintiff David A. Johnson, resides in Iowa City, Johnson County, Iowa.
A

Case 3:03-cv-10062-REL-RAW Document 16 Filed 10/09/03 Page 5 of 24
15) All Defendants have offices in and transact business in Iowa City, Johnson County, Iowa.
16) Venue in Davenport, Iowa, within this District, is appropriate pursuant to Title 28 U.S.C. Section 1391 and Local Rule 3.1.
IV. JURISDICTION 17) This Court has jurisdiction of this complaint pursuant to 28 U.S.C. Section 1331, vesting jurisdiction in Federal District Courts over actions brought to recover damages under any act of Congress providing for the protection of civil rights, 28 U.S.C. Section 1441, vesting jurisdiction of Federal District Courts over actions brought under the Federal Constitution and laws of the United States of America, 28 U.S.C. Section 1343, vesting jurisdiction of Federal District Courts over deprivation, under color of State law, statute, ordinance, regulation custom or usage, of any right or privilege secured by the Federal Constitution or Act of Congress, and 28 U.S.C. Section 1367, vesting supplemental jurisdiction of Federal Courts over State law claims in the same case or controversy.
V. THE FACTS 18) Mr. Johnson is a male, legally married, non-union, merit staff employee of the University of Iowa. He is a veteran of the United States Army, having honorably served in the Desert Storm conflict in his capacity as a Mission Specialist with a Hawk Missile Crew.

Case 3:03-cv-10062-REL-RAW Document 16 Filed 10/09/03 Page 6 of 24
19) Mr. Johnson became employed with Defendant University ofIowa, on
June 1, 1999. At all times material hereto he has served in its Office of Registrar,
in the capacity as a Clerk IV. His terms of employment include his ability to accrue
paid sick leave.
20) Defendant University ofIowa publishes in its Operations Manual certain policies and rules that define its obligations as an employer and the rights and
duties of its employees. As a part of its Operations Manual, at Chapter 22, Defendant University of Iowa articulates its policies regarding the absences of all
staff members whose employment contract terms are not subject to collective
bargaining agreements. As a part of that overall policy, at Section 22.8, the institution has established what it describes as its "Parental Leave Policy" that
includes, in relevant part, the following terms and conditions:
22.8 PARENTAL LEAVE POLICY
a. Purpose. To permit parents who have care giving responsibilities to have time off to spend with a child newly added to the family and, to the extent permitted by state law, to be paid during such leave. To adapt an employee's work schedule and/or duties to help reduce conflict with parental obligations.
b. Entitlement to Leave.
(1) Twelve-Month Faculty, Professional, Scientific, and NonOrganized Merit System Staff.
(a) Biological mothers are entitled to leave for any period of pregnancy-related temporary disability, to be charged against sick leave. Based on current medical practice, a leave of six weeks or less would not require the employee to provide disability documentation. If an employee's accumulated sick leave is insufficient to cover the period of disability, the employee will, at the employee's request,

Case 3:03-cv-10062-REL-RAW Document 16 Filed 10/09/03 Page 7 of 24
be granted a leave of absence without pay. Any request for absence beyond the period of disability is considered as a leave of absence without payor as vacation. (b) A newly adoptive parent, including a domestic partner, is entitled to one week (5 days) of paid adoption leave to be charged against accrued sick leave. Departments are encouraged to arrange for additional leave as necessary. Departments should work with prospective adoptive parents seeking to adopt through an adoption agency with specific requirements for parental leave, to the extent the adoption leave is not sufficient to undertake an adoption. Time not charged to accrued sick leave may be charged to accrued vacation or taken as leave without pay. (emphasis added). 21) By October 2002, Mr. Johnson had accrued more than forty hours of paid sick leave. 22) On November 16, Mr. Johnson's spouse gave birth and the two of them became the parents of their first child. In conjunction with the birth of his biological daughter, pursuant to the Parental Leave Policy, as set forth in Defendant University of Iowa's Operations Manual, Mr. Johnson was denied the right to apply for paid parental leave, that is, as a parent-employee, to apply five days (equivalent to forty hours) of his accrued sick leave towards a parental leave of absence to assist his spouse in caring for their new child. 23) Defendant University ofIowa denied Mr. Johnson's eligibility for parental leave benefits under the Parental Leave Policy due to his status as his child's biological father. A benefits administrator with said Defendant, in an e-mail dated October 22, 2002, formally responded to Mr. Johnson's inquiries and admitted that
7

Case 3:03-cv-10062-REL-RAW Document 16 Filed 10/09/03 Page 8 of 24
the employer deliberately denies biological fathers the benefit of any paid parental leave to care for a newborn child, paid or unpaid:
As you've noted, under the University policy adoptive parents or domestic partners (fathers and mothers) are entitled up [to] 5 days of paid adoption leave to be charged against sick leave. Biological mothers can use sick leave for up to six weeks (without disability documentation; perhaps more if there is documentation is [sic] provided and sick leave is available). Biological fathers, however, are not entitled to use sick leave to care for a new child (other than the emergency sick leave that can be used to transport mother, and mother and child, to and from the hospital). Subject to departmental scheduling and availability, biological fathers can of course use vacation leave during this period.
(emphasis added).
24) Thus, as his child's biological father, Mr. Johnson-as well as all other
biological fathers who are employed by Defendant University ofIowa and whose employment terms are subject to Section 22.8 of the Operations Manual-was
denied the right to apply his accrued paid sick leave to a five-day parental leave
under the Parental Leave Policy although all other employee who are subject to the Policy, such as biological mothers, adoptive parents and domestic partners, are
allowed such a right.
25) Mr. Johnson, believing that such a Policy, as interpreted, conflicted with the stated intentions of the Defendant University of Iowa's Parental Leave Policy as well as his contract of employment and Federal and State law, initiated further contacts with the administrators of the University ofIowa, only to find that they
confirmed that the benefit administrator's interpretation and conclusions regarding

Case 3:03-cv-10062-REL-RAW Document 16 Filed 10/09/03 Page 9 of 24
the status of biological fathers under the policy correctly set forth the Defendant University of Iowa's official position.
26) Thus, Defendant University ofIowa, via its agents, expressly and intentionally denied to Mr. Johnson the opportunity to apply his accrued sick leave towards paid parental leave to care for his newborn child on account of his status as the biological father of his child.
27) Under Defendant University ofIowa's Parental Leave Policy, all female parent-employees of the University ofIowa, without regard to their reproductive status--that is, whether biological or adoptive, whether married or unmarried or domestic partners--as well as all adoptive father-employees, are allowed by their employer to apply accrued sick leave towards paid parental leave to care for a new child.
28) By contrast, only those males who are adoptive parents are allowed by their employer to apply their accrued sick leave towards paid parental leave to care for a new child. All biological fathers are expressly precluded from applying their accrued sick leave towards paid parental leave to care for a new child.
29) Acknowledging that adoptive fathers are also men does not alter the fact that only men are excluded from receiving benefits under Defendant University of Iowa's Parental Leave Policy, nor does it mitigate the discriminatory intent evidenced by the inescapable conclusion resulting from the policy: that Mr. Johnson, but for his sex, would be entitled to use of his accrued sick leave to care for his child.
o

Case 3:03-cv-10062-REL-RAW Document 16 Filed 10/09/03 Page 10 of 24
30) The policy, by its own definite terms, is not a maternity leave policy dependent upon the medical disability of a biological mother resulting from childbirth, but, by its very name, a Parental Leave Policy that grants parents who have care giving responsibilities time off to spend with a child newly added to the family, and provides for this leave to be paid. The policy, as self-defined, establishes a means by which parents may balance their new family and work related responsibilities.
31) Furthermore, the Family Leave Policy does not require a showing of medical disability in order to qualify for accrued sick leave benefits to care for a new child. As a result, the benefits of the policy extend to those, except for biological fathers, who do not give birth.
32) Even as it describes parental leave as a gender-neutral activity, the Parental Leave Policy, in operation, undermines, rather than effectuates, its purported and articulated purpose. For example, the terms--and telling omissions-of the Policy, specifically, the ostensible exclusion of a biological father from the definition of a "parent" under the policy, imply that biological fathers are superfluous to the care-giving responsibilities attendant to a new child. Such an exclusion tends to further the stereotypes about the roles of men and women in family life, namely that men do not take substantial part in domestic work, including childcare. These stereotypes have the effect of denying men the responsibilities and joys of parenthood and the opportunity to participate in their children's lives, while such stereotyping also prevents women from fully realizing
'"

Case 3:03-cv-10062-REL-RAW Document 16 Filed 10/09/03 Page 11 of 24
their potential in the workplace by disadvantaging the biological fathers of their children who desire to take on the work and time involved in childrearing, especially in the first days of a child's life. The cumulative effects of policies such as the Parental Leave Policy adopted by Defendant University ofIowa result in the perpetuation of women's role as the primary caretakers of children and sustain the injustice of women's double burden.
33) Furthermore, this Policy is not tailored to assure that paid leave is available to all families. The absurd--and retrograde--consequences of the policy are clearly evidenced by its complete implosion as applied to possible non-traditional families. For example, if a male employee, as a part of a committed domestic partnership, became a biological parent through surrogacy, he would be prohibited from applying his accrued sick leave towards a paid parental leave benefit upon the birth of his biological child. But, his domestic partner, if an adoptive parent, and if a University of Iowa employee subject to the Parental Leave Policy, would be allowed such use of his accrued sick leave to obtain a paid parental leave. Alternatively, if his partner were not a University of Iowa employee subject to the Parental Leave Policy, this non-traditional family, which, ostensibly, is to benefit from the Policy, would be left with no access to accrued sick leave at all to care for the new child, in stark contrast to the benefits afforded new female parents in domestic partnership with a new child born to one of them biologically.
34) The only plausible explanation for this policy is an insidiously predatory one: that, for budgetary reasons, Defendant University of Iowa is attempting to
1 1

Case 3:03-cv-10062-REL-RAW Document 16 Filed 10/09/03 Page 12 of 24
deny male employees who are biological fathers from utilizing sick leave benefits that they have already earned. Such an explanation, if true, is as unfair as it is unlawful.
35) Defendant University ofIowa has targeted one sex-based groupbiological fathers-for systemic disparate treatment by excluding them from benefits to which they would otherwise be entitled but for unlawful discrimination and which are conferred upon all similarly situated employees.
36) Consequently, Defendant University of Iowa has arbitrarily, capriciously and facially excluded biological fathers from a benefit--the use of accrued sick leave towards a five day paid leave to care for a new child--provided to all other employee parents of new children.
37) As a proximate cause of Defendant University of Iowa's discriminatory policy, Mr. Johnson suffered a substantial loss in employment benefits in the form oflost paid leave following the birth of his child in October 2002 for which he would have otherwise qualified if not for the unlawful discrimination of the Defendants University of Iowa, State Board of Regents, David J. Skorton, M.D., Douglas K. True and Susan C. Buckley, and has suffered and will continue to suffer mental and emotional pain as a result of the University ofIowa's unlawful discrimination against him and all others similarly situated.
38) As a proximate cause ofthe discriminatory Parental Leave Policy, all male employees of Defendant University of Iowa who are or who may become
17

Case 3:03-cv-10062-REL-RAW Document 16 Filed 10/09/03 Page 13 of 24
biological fathers will be denied the benefits of their employment under the Parental Leave Policy, to which, but for their sex, they would otherwise be entitled.
39) Defendant University ofIowa, unless enjoined by this court from denying to biological fathers who are subject to the Parental Leave Policy the use of accrued sick leave for paid parental leave for the care and support of new children, is likely to continue to cause Mr. Johnson, should he choose to have another child, and his family, and all other employees of Defendant University ofIowa who are subject to Operations Manual Section 22.8, and who are or may become biological fathers, and their respective family units, serious and irreparable injury and harm for which they have no plain, adequate, or complete remedy other than a suit for injunctive relief. The denial of this remedy would preclude substantial relief, and would cause Plaintiff further irreparable injury and occasion damage, vexation and I.nconvenI.ence.
40) Plaintiff has attempted by all other means short of filing this lawsuit and claim for injunctive relief, to cause and allow Defendant University ofIowa and State Board of Regents, to rectifY the objected-to employment policy, but without success. Only judicial intervention can assure that Mr. Johnson and others in his position-and their families-will enjoy the accrued benefits that they have earned, in a manner that will help to strengthen families and make the University ofIowa a better place to work.
VII. CAUSES OF ACTION A. FEDERAL CLAIMS

Case 3:03-cv-10062-REL-RAW Document 16 Filed 10/09/03 Page 14 of 24
Count I: Sex Discrimination in Violation of Title VII-Systemic Disparate Treatment
41) 42 U.s.C. Section 2000e-2(a), states, in relevant part, as follows: (a) Employer Practices. It shall be an unlawful employment practice for an employer(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's ... sex ... ; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or other wise adversely affect his status as an employee, because of such individual's ... sex. .. .
42) Plaintiff David A. Johnson restates paragraphs 1 through 40 as if fully set forth herein.
43) Mr. Johnson is a man and was an employee of Defendant University of Iowa at the time of the birth of his child, and, therefore, is a member of a protected category of person under the statute.
44) Mr. Johnson was subject to discrimination on the basis of his sex as a result of the facial and intentional exclusion of biological fathers from benefits provided to all other employees who are parents of new children.
45) The discrimination affected and/or altered a term, condition, or privilege of his employment by denying Mr. Johnson benefits to which he was otherwise entitled.
1 A

Case 3:03-cv-10062-REL-RAW Document 16 Filed 10/09/03 Page 15 of 24
46) Defendants University of Iowa and State Board of Regents, through their agents, intended to exclude male employees who are parents from benefits provided to all parents of children newly added to a family and therefore knew or should have known of the discrimination and failed to take the proper remedial action.
WHEREFORE, Plaintiff David A. Johnson, individually, and on behalf of all others similarly situated as defined above, prays for declaratory, injunctive and compensatory relief against Defendants University of Iowa and State Board of Regents and demands the following:
A) that the Court declare the policy articulated in the University ofIowa Operations Manual, Section 22.8, unlawful under 42 U.S.C. 2000e et seq. and all subsequent amendments, prohibiting discrimination in employment on the basis of sex;
B) that the Court enjoin the Defendant University ofIowa and the State Board of Regents, and their agents, from continuing to discriminate on the basis of sex or in any other unlawful manner in their allowance of the use of accrued sick leave by an employee for the purpose of taking paid parental leave to care for a new child. To effectuate this injunction, Mr. Johnson prays that the Court order said Defendants to rectify its Parental Leave Policy to conform with the law and provide a non-discriminatory Parental Leave Policy for employees of the University ofIowa.
C) that the Court award compensatory damages adequate to redress the lost wages and emotional injury suffered by Mr. Johnson and all others members of the class to the extent allowed by law, together with pre-judgment interest, attorney's

Case 3:03-cv-10062-REL-RAW Document 16 Filed 10/09/03 Page 16 of 24
fees and costs related to this action, as available under law, and any other additional or alternative relief that the court deems equitable and just under the circumstances.
Count II: Sex Discrimination in Violation of Equal Protection Pursuant to 42 U.S.C
1983 47) The Constitution of The United States of America prohibits the denial of "equal protection of the laws" to any person. Section 1 of the Fourteenth Amendment provides:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person oflife, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
48) 42 U.s.C. Section 1983 provides an enforcement mechanism for the rights secured under the Constitution and laws of the United States and states:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
49) Plaintiff David A. Johnson restates paragraphs 1 through 40 as if fully set forth herein.
'"

Case 3:03-cv-10062-REL-RAW Document 16 Filed 10/09/03 Page 17 of 24
50) Mr. Johnson is a citizen ofthe United States and, therefore, is a member of a protected category of person under the statute.
51) Mr. Johnson is a man and was an employee of Defendant University of Iowa, at the time of the birth of his child, who has accrued sick leave the equivalent of five days wages.
52) Mr. Johnson may become the biological parent of other children in the future.
53) Mr. Johnson, as a parent, is similarly situated with persons who are employees of the Defendants University of Iowa and State Board of Regents, namely all other parents of new children subject to Operation Manual Section 22.S.
54) Mr. Johnson was denied benefits which others similarly situated received. 55) Mr. Johnson has been treated differently because of his classification as a biologi~al father under a Parental Leave Policy that denies biological fathers paid parental leave and classifies all non-recipients of paid parental leave as male, thereby facially discriminating on the basis of sex. 56) Officials of the University ofIowa knew or should have known that this discrimination violated equal protection guarantees under the law. 57) This classification scheme does not serve an important governmental objective and therefore violates Mr. Johnson's right to equal protection under the law pursuant the Constitution ofthe United States. 58) To the extent that an important governmental objective may be found for the classification scheme, the discriminatory means employed by Defendants
17

Case 3:03-cv-10062-REL-RAW Document 16 Filed 10/09/03 Page 18 of 24
University ofIowa and State Board of Regents is not substantially related to the achievement of that objective and therefore violate Mr. Johnson's right to equal protection under the law pursuant to the Fourteenth Amendment of the Constitution of the United States of America.
59) To the extent the policy does not discriminate on the basis of sex, the classification scheme is, in any event, not rationally related to a legitimate governmental purpose, is arbitrary and capricious, and therefore violates Mr. Johnson's right to equal protection under the law pursuant to the Constitution of the United States of America.
60) Defendants David J. Skorton, M.D., Douglas K. True and Susan C. Buckley, acting under color of state law in their capacities as officials of the
University ofIowa, violated Mr. Johnson's equal protection under the law by denying him, as a new parent, the use of employment benefits in the form of accrued paid sick leave, a benefit he had already earned, for the purpose of receiving a paid period of parental leave, while providing other similarly situated employees--parents of new children--the use of their accrued sick leave for the purpose of receiving a paid period of parental leave, thereby discriminating against Mr. Johnson because of his sex andlor arbitrarily and capriciously.
WHEREFORE, Plaintiff David A. Johnson, prays for declaratory and
injunctive and relief against the Defendants David J. Skorton, Douglas K. True and
Susan C. Buckley and demands the following:
151

Case 3:03-cv-10062-REL-RAW Document 16 Filed 10/09/03 Page 19 of 24
A) that the Court declare the policy articulated in the University of Iowa Operations Manual, Section 22.8, unlawful under the Constitution of the United States of America;
B) that the Court enjoin the Defendants David J. Skorton, Douglas K. True and Susan C. Buckley in their official capacities with the University ofIowa from continuing to discriminate on the basis of sex or in any other unlawful manner in their allowance of the use of accrued sick leave by an employee for the purpose of taking paid parental leave. To effectuate this injunction, the plaintiff prays that the court order Defendants University ofIowa and State Board of Regents to rectify its Parental Leave Policy to conform with the law and provide a non-discriminatory Parental Leave Policy for University of Iowa employees.
C) that the Court award attorney's fees and costs associated with this action to the extent allowed by law, and any other relief the Court may find just and equitable to remediate the discrimination under the circumstances.
B. PENDENT STATE CLAIMS Count I:
Unlawful Employment Practice 61) Iowa Code § 216. 6.1 states, in relevant part, as follows: 216.6 Unfair employment practices. 1. It shall be an unfair or discriminatory practice for any:
a. Person to refuse to ... classify ... or to otherwise discriminate in employment .... against any employee because of the ... sex ... of such ... employee, unless based upon the nature of the occupation.
lc)

Case 3:03-cv-10062-REL-RAW Document 16 Filed 10/09/03 Page 20 of 24
For the purpose of the statute, the term "person," as defined in Iowa Code § 216.2.11, includes the State ofIowa and all of its agencies.
62) Mr. Johnson restates paragraphs 1 through 40 and incorporates them herein.
63) Mr. Johnson is a man and an employee of the University ofIowa and the Iowa State Board of Regents, the Defendant Employer, and is therefore a member of a protected class under the statute.
64) Mr. Johnson was denied benefits--paid parental leave by application of his accrued sick days--for which he otherwise qualified.
65) The University ofIowa and the Iowa State Board of Regents, via their agents, denied Mr. Johnson benefits such as to alter a term and deny him a privilege of his employment because they knowingly and deliberately differentiate between biological fathers and all other parents in their parental leave policy, as articulated in Operations Manual 22.8, by facially excluding biological fathers from the beneficiary class under the policy.
66) Only men are denied paid parental leave as a result of this discrimination.
67) Therefore, the University of Iowa and the Iowa State Board of Regents unlawfully discriminated against Mr. Johnson, wholly or in part, because of sex.
WHEREFORE, Plaintiff David A. Johnson, prays for declaratory, injunctive and compensatory relief against the Defendants University of Iowa and demands the following:
711

Case 3:03-cv-10062-REL-RAW Document 16 Filed 10/09/03 Page 21 of 24
A) that the court declare the policy articulated in the University ofIowa Operations Manual, Section 22.8, unlawful under Iowa Code Section 216.6 prohibiting discrimination in employment on the basis of sex;
B) that the court enjoin the University of Iowa from continuing to discriminate on the basis of sex or in any other unlawful manner in its allowance of the use of accrued sick leave by an employee for the purpose of taking paid parental leave. To effectuate this injunction, the plaintiff prays that the court order the University of Iowa to rectify its parental leave policy to conform with the law and provide a non-discriminatory parental leave policy that preserves the status and validity of current benefits and beneficiaries upon the completion of the 2003 fiscal year.
C) that the court award compensatory damages adequate to redress Mr. Johnson's lost wages and emotional injury, together with pre-judgment interest, attorney's fees and costs related to this action, as available under law, and any other additional or alternative relief that the court deems equitable and just under the circumstances.
Count II: Violation of Equal Protection: Constitution of the State ofIowa 68) Article 1, section 6 of the Constitution of the State ofIowa is the counterpart to the federal Equal Protection Clause and provides, in relevant part, that:
21

Case 3:03-cv-10062-REL-RAW Document 16 Filed 10/09/03 Page 22 of 24
[AJlllaws of a general nature shall have a uniform operation; the general assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally helong to all citizens. 69) Mr. Johnson restates paragraphs 1 through 40 as if fully set forth herein. 70) Mr. Johnson is a man and an employee of the University of Iowa who has accrued sick leave the equivalent of five days wages. 71) Mr. Johnson is the biological parent of a new child and may become the biological parent of other children in the future. 72) Mr. Johnson was denied benefits which others similarly situated received. 73) Mr. Johnson, as a parent of a new child, is similarly situated by the terms of the policy itself with persons who have been treated differently by the University of Iowa and Board of Regents, namely all other parents of new children subject to the Parental Leave Policy, as set forth under the University ofIowa Operations Manual Section 22.8. 74) Mr. Johnson has been treated differently because of his classification as a biological father under the Parental Leave Policy's provisions that deny biological fathers the use of accrued sick leave to allow paid parental leave and classify all non-recipients of paid parental leave as male, thereby facially discriminating on the basis of sex. 75) This classification scheme does not serve an important governmental objective and therefore violates Mr. Johnson's right to equal protection under the law pursuant to the Iowa State Constitution.
22

Case 3:03-cv-10062-REL-RAW Document 16 Filed 10/09/03 Page 23 of 24
76) To the extent that an important governmental objective may be found for the classification scheme, the discriminatory means employed by the University of Iowa and the Board of Regents is not substantially related to the achievement of that objective and therefore violates Mr. Johnson's right to equal protection under the law pursuant to the Constitution of the State of Iowa.
77) To the extent the policy does not discriminate on the basis of sex, the classification scheme is not rationally related to a legitimate governmental purpose, is arbitrary and capricious, and therefore violates Mr. Johnson's right to equal protection under the law pursuant to the Constitution of the State ofIowa.
WHEREFORE, Plaintiff David A. Johnson, prays for declaratory, injunctive and compensatory relief against the Defendants University of Iowa and demands the following;
A) that the court declare the policy articulated in the University of Iowa Operations Manual, Section 22.8, unlawful under the Iowa State Constitution;
B) that the court enjoin the University ofIowa from continuing to discriminate on the basis of sex or in any other unlawful manner in its allowance of the use of accrued sick leave by an employee for the purpose of taking paid parental leave. To effectuate this injunction, the plaintiff prays that the court order the University ofIowa to rectify its parental leave policy to conform with the law and provide a non-discriminatory parental leave policy that preserves the status and validity of current benefits and beneficiaries upon the completion of the 2003 fiscal year.
),

Case 3:03-cv-10062-REL-RAW Document 16 Filed 10/09/03 Page 24 of 24

C) that the court award compensatory damages adequate to redress Mr.

Johnson's lost wages and emotional injury, together with pre-judgment interest,

attorney's fees and costs related to this action, as available under law, and any

other additional or alternative relief that the court deems equitable and just under

the circumstances.

~y Dated this

of October, 2003.

Respectfully submitted

a es C. arew 08533 504 E. Bloomington Street Iowa City, Iowa 52245 Phone: 319/337-7079 Fax: 319/337-7082 Larewlaw@aol.com
ATTORNEY FOR PLAINTIFF

Attached: Letter) Original:

Exhibit "A" (Equal Employment Opportunity Commission Right to Sue Filed

 
 David A. JOHNSON, on his own behalf and on behalf of..., 2004 WL 5830547...

2004 WL 5830547 (S.D.Iowa) (Trial Motion, Memorandum and Affidavit) United States District Court, S.D. Iowa. Davenport Division
David A. JOHNSON, on his own behalf and on behalf of all others similarly situated, Plaintiff, v.
UNIVERSITY OF IOWA, State Board of Regents, David J. Skorton, M.D., in his official capacity, Douglas K. True, in his official capacity, and Susan C. Buckley, in her official capacity, Defendants.
No. 3 03 CV10062. July 21, 2004.

Defendants’ Brief in Support of Motion for Summary Judgment

Thomas J. Miller, Attorney General of Iowa, George A. Carroll, Assistant Attorney General, License No. 7898, Hoover Building, Second Floor, Des Moines, Iowa 50319, Phone: (515) 281-4931, Fax: (515) 281-7219, E-Mail: gcarrol @dhs.state.ia.us, Attorneys for Defendants; Mark E. Schantz, General Counsel, License No. 4893, 120 Jessup Hall, University of Iowa, Iowa City Iowa 52242-1316, Phone: (31) 335-2841, Fax: (319) 335-2830, E-Mail: mark-schantz @uiowa.edu.
TABLE OF CONTENTS

TABLE OF AUTHORITIES ............................................................................................................................................................

ii

INTRODUCTION .................................................................................................................................................................................

1

STANDARD OF REVIEW ...............................................................................................................................................................

1

SUMMARY OF RELEVANT FACTS .........................................................................................................................................

3

ARGUMENT:

A. The University of Iowa’s Adoptive Leave Plan Does Not Violate Title VII of The Civil Rights Act of

9

1964 .............................................................................................................................................................................................................

B. A Policy Distinguishing Between Adoptive and Biological Parents Does Not Violate Equal Protection ....

11

C. The University Can Plausibly Believe That Adoptive Parents Have a Stronger Equitable Claim Than

16

Biological Parents on Scare University Resources ...................................................................................................................

CONCLUSION ......................................................................................................................................................................................

20

TABLE OF AUTHORITIES

CASES

Bailey v. U.S. Postal Serv., 208 F.3d 652 (8th Cir. 2000) ......................................................................

2

Bell v. Conopco. Inc., 186 F.3d 1099 (8th Cir. 1999) ..............................................................................

1

Bennett v. Dr Pepper/Seven Up, Inc., 295 F.3d 805 (8th Cir. 2002) .................................................

2

Bowen. 476 U.S. at 345 .......................................................................................................................................

18

1

David A. JOHNSON, on his own behalf and on behalf of..., 2004 WL 5830547...

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ........................................................................................... Dropsinki v. Douglas County. Neb., 298 F.3d 704 (8th Cir. 2002) .................................................... Fitzgerald v. Racing Ass’n., 539 U.S. 103, 107 (2003) .......................................................................... Hughes v. Alexandria Scrap Corp., 426 U.S. 794 (1976) ...................................................................... Idaho Department of Employment v. Marlene G. Smith, 434 U.S. 100 (1977) ............................. Jackson v. Arkansas Dept. of Educ. Vocational & Tech. Educ. Div., 272 F.3d 1020 (8th Cir. 2001), cert. denied, 536 U.S. 908 (2002) ............................................................................................ Jefferson v. Hackney, 406 U.S. 535 (1972) ................................................................................................. Mathews v. Trilogy Communications. Inc., 143 F.3d 1160 (8th Cir. 1998) .................................... Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) ....................................... Montgomery v. John Deere Co., 169 F.3d 556, 558 n.3 (8th Cir. 1999) .......................................... Naucke v. City of Park Hills, 284 F.3d 923 (8th Cir. 2002) .................................................................. Newport News Shipbuilding and Dry Dock Co. v. EEOC, 462 U.S. 669 (1983) .......................... Otis R. Bowen v. Buenta M. Owens, et al., 476 U.S. 340 (1986) ........................................................ P.H. v. Sch. Dist. of Kansas City. Mo., 265 F.3d 653 (8th Cir. 2001) ............................................... Richard S. Schweiker v. George Hogan, 457 U.S. 569 (1982) ............................................................ United States Railroad Retirement Board v. Gerhard H. Fritz, 449 U.S. 166, reh. den. (US) 67 L.Ed.2d 385, 101 S.Ct. 1421 (1980) ........................................................................................................ STATUTES Federal Rule of Civil Procedure 56(c) ........................................................................................................... Federal Rule Civil Procedure 56(e) ................................................................................................................ 42 U.S.C. §2000e-2(a) 2 ..................................................................................................................................... Idaho Code § 73-1312(a) (1973) ......................................................................................................................

2 1 12, 13 13 13, 14 2
15 2, 15
1 10 2 9 15 1, 2 14 16
1 2 9 13

INTRODUCTION
Plaintiff, David A. Johnson, in his Complaint filed on or about June 17, 2003, alleges that Defendants violated Plaintiff’s right to be free from discrimination based upon sex or gender, under federal and state law and denial of equal protection under the United States and Iowa Constitutions. The graveman of Plaintiff’s claim appears to be University policies which permit an adoptive parent to use five days of accrued sick leave for justifiable absences from work related to adoption while not affording a biological father permission to use sick leave for absences from work for child-rearing purposes is unlawful.

2

David A. JOHNSON, on his own behalf and on behalf of..., 2004 WL 5830547...
STANDARD OF REVIEW
Summary judgment is appropriate when the Court after viewing all of the adjudicative facts, and inferences drawn from those facts, in the light most favorable to the non-moving party, and giving that party the benefit of all reasonable inferences that can be drawn from the facts, concludes there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); See Dropsinki v. Douglas County, Neb., 298 F.3d 704, 706 (8th Cir. 2002); P.H. v. Sch. Dist. of Kansas City. Mo. 265 F.3d 653, 658 (8th Cir. 2001) (nonmoving party, “is entitled to all reasonable inferences-those that can be drawn from the evidence without resort to speculation.”) (quoting Sprenger v. Fed. Home Loan Bank of Pes Moines, 253 F.3d 1106, 1110 (8th Cir. 2001) (internal quotations omitted); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, (1986). The court’s function at the summary judgment stage of the proceedings is not to “to weigh evidence in the summary judgment record to determine the truth of any factual issue; we merely determine whether there is evidence creating a genuine issue for trial.” Bell v. Conopco. Inc., 186 F.3d 1099, 1101 (8th Cir. 1999) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-51, (1986)).
According to Rule 56(e), once the moving party files a properly supported motion for summary judgment, the burden shifts to the nonmoving party to point out genuine issues of material fact that would preclude judgment as a matter of law for the moving party. See Fed.R.Civ.P. 56(e); Bennett v. Dr Pepper/Seven Up. Inc., 295 F.3d 805, 808-09 (8th Cir. 2002); Naucke v. City of Park Hills, 284 F.3d 923, 927 (8th Cir. 2002) (explaining, “a nonmovant must present more than a scintilla of evidence and must advance specific facts to create a genuine issue of material fact for trial.”) (citing F.D.I.C. v. Bell, 106 F.3d 258, 263 (8th Cir. 1997), quoting Rolscreen Co. v. Pella Prods. Of St. Louis. Inc., 64 F.3d 1202, 1211 (8th Cir. 1995)); Bailey v. U.S. Postal Serv., 208 F.3d 652, 654 (8th Cir. 2000) (nonmoving party “may not rest upon ‘mere allegations or denials’ contained in its pleadings, but must, by sworn affidavits and other evidence, ‘set forth specific facts showing that there is a genuine issue for trial.’ ”) (quoting Fed.R.Civ.P. 56(e)); Mathews v. Trilogy Communications. Inc., 143 F.3d 1160, 1164 (8th Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324, (1986)). Moreover, the party opposing summary judgment “must make a sufficient showing on every essential element of its claim on which it bears the burden of proof.” P.H. 265 F.3d at 658 (quoting Buettner v. Arch Coal Sales Co., 216 F.3d 707, 718 (8th Cir. 2000), cert. denied, 531 U.S. 1077, (2001)). The consequence of a nonmoving party’s failure of proof concerning an essential element of the case “renders all other facts immaterial,” and in such a case, no genuine issue of fact exists. Celotex Corp. v. Catrett. 477 U.S. at 327. The court looks to the substantive law to determine if an element is ‘essential’ to the underlying case. Id Therefore, the movant is entitled to summary judgment where the factual dispute does not affect the outcome of the case under the governing law. See Jackson v. Arkansas Dept. of Educ. Vocational & Tech. Educ. Div., 272 F.3d 1020, 1025 (8th Cir. 2001), cert. denied, 536 U.S. 908 (2002) (citing Anderson, 477 U.S. at 248).
SUMMARY OF RELEVANT FACTS1
The University of Iowa (hereinafter “the University”) is an institution of higher education with approximately 13,726 full-time employees. (App. p. 3; Aff. D. True). The University provides a comprehensive benefits package including health and dental insurance, paid leave for absences and retirement plans. Total employee benefit costs at the University are $267 million or 34.5% of its payroll. The national average benefit ratio for all workers in the United States is 28.1% of payroll. Vacation and sick leave costs at the University annually are $67.1 million or 8.68% of its payroll. The national average for the same is 6.5% of payroll. The University experiences annually $17.6 million in variable costs for sick leave use alone. (App. p. 24; Interrogatory Response Jayne).
A. Permissible Absence Form Work Generally
It may help the Court in its understanding of the parental leave issue to locate it in the broader context of University policy relating to absences. To this end, Chapters III-22 and III-23 of the University Operations Manual (“UOM”) are attached to this brief as Exhibit A.
1. Paid Leave
Section III-22.2 makes clear that the University’s general expectation of its employees is to report to work regularly and on
3

David A. JOHNSON, on his own behalf and on behalf of..., 2004 WL 5830547...
schedule. The policy goes on to recognize that there are absences which maybe necessary or justifiable.
For many years, the State of Iowa and the University of Iowa have had “sick leave” policies for their employees that assume some or all of the risk is being unavoidably absent from work and losing compensation for those days absent. Currently, sick leave credits accrue at the rate of 12 hours per month of service for full-time employees. Originally, paid leave was available only for absences due to medically-related disabilities. The University has also long treated a pregnancy-related condition as a medically-related disability and biological mothers are entitled to leave for any period of pregnancy-related temporary disability for which they have sufficient accrued sick leave. Based on current medical practice, a pregnancy leave of no more than six weeks would not require documentation of disability, but beyond that, written medical evidence is required.
Over the years, and apparently reflecting employee requests that they be permitted to apply sick leave credits to other situations, the University has permitted employees to use sick leave credits for other kinds of absence. Those additional justifications include (1) emergency leave, which permits an employee a maximum of five days per calendar year for the care and necessary attention of ill or injured members of the employee’s immediate family; (2) funeral leave, which permits an employee a maximum of three days for each occurrence of death in the employee’s immediate family; (3) service as a pallbearer, which permits a maximum of one day for each service at the funeral of a person not a member of the employee’s immediate family; (4) adoption - a new adoptive parent is permitted a maximum of five days’ absence to be charged against sick leave. Sick leave may also be used in connection with certain on-the-job injuries.
University policy also permits some permanent employees who have accumulated a minimum of 240 hours of sick leave to exchange the monthly sick leave accrual for vacation time at a rate of 12 hours of sick leave for 4 hours of vacation.
2. Unpaid Leave
The University also permits employees to request unpaid leave to the extent that accrued sick leave is insufficient to cope with the medical condition or other qualifying event. In addition, the University has adopted polices to implement the requirements of the federal Family and Medical Leave Act of 1993 (“FMLA”). As relevant to this matter, the University will grant up to 12 weeks of unpaid leave during any 12 month period for (1) the birth and first-year care of a child; (2) the adoption or foster placement of a child in the employee’s home; (3) the care of a spouse, child or parent with a serious health condition; or, (4) the employee’s own serious health condition, The specific requirements of FMLA leave are set forth in Section III-22.7 of the UOM, and included here as part of Exhibit A.
3. Vacation
The University also allows professional and scientific staff involved in this matter to accrue vacation so they may be paid for time off. Vacation days accrue at the rate of 24 days annually Subject to reasonable notice in scheduling vacation to meet work needs, employees may also use vacation credits to compensate for absences for any of the reasons for which they might have used accrued sick leave (in addition to actual vacation).
In accordance with these policies, all parents, should they not have accursed sick leave or if the reason for their absence is not an eligible use of accrued sick leave, may use unpaid leave or vacation to spend additional time with their children.
4 “Parental” Leave
The term “parental” leave is sometimes used to cover both benefits related to the birth (or acquisition) of a child and benefits related to child rearing. Sometimes it is used only to include child-rearing leave. In the broader sense of the term, then, medical leave provided biological mothers for the birth of a child is also parental leave. Under the Pregnancy Discrimination Act of 1979 (“PDA”), the University is obligated to include pregnancy as a qualifying medical condition if it permits other employees leave for other medical disabilities. Failure so to do constitutes a violation of Title VII.
As previously noted, both biological and adoptive parents may use unpaid FMLA leave for the birth and first-year care of a
4

David A. JOHNSON, on his own behalf and on behalf of..., 2004 WL 5830547...
child or the adoption of foster placement of a child in an employee’s home, as well as caring for a child with a serious health condition. All of these may be seen as forms of parental leave.
Shortly before the adoption of the FMLA in 1993, the bargaining organization for the University’s merit employees requested that covered employees who were adoptive parents be permitted to use five days of sick leave to deal with a variety of absences related to the adoption process. Additional benefits for biological parents were not sought by the bargaining organization and were not included in the collective bargaining agreement.
In the general case, the University will provide its faculty and its professional and scientific staff with additional benefits negotiated by its organized employees, and that occurred shortly thereafter with the adoptive leave benefit.
The adoptive leave policy recognizes that five days may not be sufficient to permit paid absences for the days required of adoptive parents, either by the sheer mechanics of the adoption process or the specific requirements of an adoption agency and encourages departments to find other means of assisting employees who are adoptive parents.

5. Health Insurance
All professional and scientific employees are provided under the University’s “cafeteria plan” with sufficient credits to enroll in one of the University’s health insurance plans. All of the plans compensate a female employee who is a biological mother, or a male employee whose spouse is a biological mother, for the greater portion of the medical expenses related to childbirth.

B. Summary of University Benefits Related to Parenting
As the above narrative indicates, the University provides a wide range of benefits to new parents, biological and adoptive, in the form of excused absence from work and in the form of reimbursement for expenses related to childbirth. The following table describes diagrammatically the benefits for which biological mothers, biological fathers, adoptive mothers and adoptive fathers are eligible under University policy.

Table I Eligibility for (1) Maternity Leave, (2) Parental Leave, (3) Vacation, (4) FMLA, Unpaid Leave and (5) Health Insurance for Childbirth or Child-Rearing

Female Employees
5

Biological Parents Maternity Leave Parental Leave Vacation FMLA Health Insurance

Adoptive Parents

Y

Maternity Leave

N

E

O

S

N

Parental Leave

Y

O

E

S

Y

Vacation

Y

E

E

S

S

Y

FMLA

Y

E

E

S

S

Y

Health Insurance

N

E

O

David A. JOHNSON, on his own behalf and on behalf of..., 2004 WL 5830547...
S

Male Employees

Maternity Leave Parental Leave Vacation FMLA Health Insurance

N

Maternity Leave

N

O

O

N

Parental Leave

Y

O

E

S

Y

Vacation

Y

E

E

S

S

Y

FMLA

Y

E

E

S

S

Y

Health Insurance

N

E

O

S

The University provides no other economic benefits to adoptive parents other than for use of accrued sick leave. Currently, an adoption costs approximately $12,500 with additional expense for travel and overall greater expense for international adoption. (App. p. 49; Interrogatory Response Barnes). On the other hand, a biological father’s spouse has her health care costs for birth covered by the University’s self-funded health care plan.
C. Additional Legislative Facts
Adopting a child generally involves substantial time commitments. Pre and post-procedural requirements adoption involve between 27-41 hours. If the adoption is out-of-state, an additional one or two weeks may be required. And even more time can be involved for an international adoption, which are believed to be the majority of the adoptions where leave has been requested. (App. pp. 21, 45; Interrogatory Response Barnes; Interrogatory Response Gorman).
Employee benefits generally and compensated time away from work in particular are major sources of expenses at the University. The annual cost of vacation and sick leave is $67.1 million or approximately 8.68% of the University of Iowa’s total payroll. This exceeds the national average of 6.5% of payroll, as reported by the United States Department of Labor. (App. p. 24; Interrogatory Response Jayne).
Total employee benefits cost the University of Iowa approximately $267 million, or 34.5% of total payroll. This contrasts with the national average benefit ratio of 28.1% of payroll. Average sick leave absence alone over the past 5 years is $17.6 million. (App. p. 24; Interrogatory Response Jayne).
Appropriations to the University’s base budget from the State of Iowa have decreased from 2000-2004 by $74.9 million. Increases in benefit costs related to sock leave proposed in 2002 and 2003 were rejected in substantial part because of the budget situation and the University’s need to reduce expenses. (App. 2; Aff. D. True).
The record indicates that there were 248 male employees that became biological parents between June 1, 2001 and April 14, 2004. The total cost of five (5) days leave for these employees would have been $322,992.47 or an annual cost of $112,345. (App. p. 25; Interrogatory Response Jayne). In calendar years 2002-2003, 54 employees received adoptive leave, 26 males and 28 females. (App. p. 21; Aff. J. Gorman).
6

David A. JOHNSON, on his own behalf and on behalf of..., 2004 WL 5830547...
The University health insurance plan spends $2.2 million annually on natural birth costs or approximately $6700 per childbirth. (App. p. 25; Interrogatory Response Jayne).
The University’s parental leave policy may be used by adoptive parents for a variety of reasons relating to justified absences from work, including time away before and after being awarded the adopted child. Among these reasons are agency orientation meetings, home study with agency case workers, adoptive preparation class, creation of family profile for matching process, additional counseling as needed, post-placement visits, legal consultation, travel to and from origin of adopted child, waiting period in location of adopted child under the interstate compact or international requirements. (App. p. 21; Aff. J. Gorman).
ARGUMENT
A. THE UNIVERSITY OF IOWA’S ADOPTIVE LEAVE PLAN DOES NOT VIOLATE TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 OR THE IOWA CIVIL RIGHTS ACT.
Title VII states that it is an unlawful employment practice for an employer to:
“limit, segregate or classify his employees or applicants for employment in any way which would deprive any individual of employment opportunities or otherwise adversely affect his status as an employee because of such individuals... sex....
42 U.S.C. §2000e-2(a) 2.
Title VII and Parental Leave The non-discrimination in employment provisions of Title VII clearly relate to classifications regarding fringe benefits. See Newport News Shipbuilding and Dry Dock Co. v. EEOC 462 U.S. 669 (1983). The legal analysis under state law is similar to federal law. Montgomery v. John Deere Co., 169 F.3d 556, 558 n.3 (8th Cir. 1999).
The EEOC Compliance Manual, 4818, provides Guidance on Parental Leave. “Parental Leave” is defined for Title VII purposes as: Leave to care for a child of any age, or to develop a healthy parent-child relationship, or to help a family adjust to the presence of a newborn or adopted child. It must be distinguished from pregnancy disability leave, which is a form of medical leave allowed to female employees who cannot work because of pregnancy or related medical conditions.
The Guidance goes on to state:
Title VII does not require that any particular fringe benefits be provided: it requires only equal treatment of employees, once the employer has decided to provide such benefits. Hishon v. King & Spalding. 467 U.S. 69, 75, 34 EPD 34, 387 (1984); 29 C.F.R. § 1604.9. Thus, a policy denying parental leave to all employees or severely restricting such leave is not, in the absence of additional facts, disparate treatment and probably would not be deemed to be unlawful under Title VII. A policy of refusing all parental leave may fall especially harshly on adoptive parents of either sex. Nevertheless, it is difficult to perceive any Title VII implications. It is unlikely that denial of leave will be regarded as disadvantaging either male employees or female employees simply because a particular type of leave is desired more frequently by one class or the other.
7 Natural parents would at least have the mother home with the new baby for the few weeks of the mother’s disability.
Under the University benefits plan, all employee parents may avail themselves of vacation (paid leave) or unpaid leave if 7

David A. JOHNSON, on his own behalf and on behalf of..., 2004 WL 5830547...
they wish to spend time at home with a newly-arrived child. A biological father may also take unpaid leave under the Family Medical Leave Act. (App. p. 3; Aff D. True). In addition, adoptive parents, but not biological parents, may use accumulated sick leave to finance up to five days of paid leave.
A simple 2x2 table, however, makes immediately clear that the University plan is facially neutral with respect to gender, i.e., no classification of employees by gender is involved with respect to the provision of this benefit.

Female Employees Male Employees

Table II Paid Sick Leave To Be With New Child
Biological Parents NO NO

Adoptive Parents YES YES

Some females and some males (adoptive parents) are eligible for the benefit; some females and some males (biological parents) are ineligible. Under this analysis, Plaintiff has failed to demonstrate any facial discrimination. In the end, the challenged classification involves biological parents and adoptive parents. These classifications do not violate Title VII. Nor has Plaintiff offered either allegation or evidence, statistical or otherwise, that the distinction between biological and adoptive parents disadvantage males. Data from 2001-2004, limited though it may be, indicates both genders utilize adoptive leave at about the same rate. “Adoptive” is simply not a surrogate for “female.” The Title VII analysis should end there.
B. A POLICY DISTINGUISHING BETWEEN ADOPTIVE AND BIOLOGICAL PARENTS DOES NOT VIOLATE EQUAL PROTECTION.
Equal Protection doctrine has spawned at least two and probably three strands requiring different standards of judicial review. “Invidious” or “suspect” classifications, such as race, may survive only if they withstand “strict scrutiny.” Judicial review of gender classifications generally involves “intermediate scrutiny.” Unless a classification is in some manner suspect or the policy affects a “fundamental right,” the Supreme Court has long required that the judicial branch proceed with deference to the elected branches of government by reviewing non-suspect classifications only against a “rational basis” standard. Because there is nothing “suspect” about the classification between “adoptive” and “biological” parents and because parental leave is not a fundamental right, the rational basis test is the applicable standard of review here.
A. Application of the Rational Basis Test
In Fitzgerald v. Racing Ass’n., 539 U.S. 103, 107 (2003), the Court most recently described the rational basis test as follows:
“[T]he Equal Protection Clause is satisfied so long as there is a plausible policy reason for the classification, the legislative facts on which the classification is apparently based rationally may have been considered to be true by the governmental decisionmaker, and the relationship of the classification of its goal is not so attenuated as to render the distinction arbitrary or irrational.
8

David A. JOHNSON, on his own behalf and on behalf of..., 2004 WL 5830547...
Id (quoting Nordlinger v. Hahn. 505 U.S. 1, 11 (1992)).
Defendant would specifically direct the Court’s attention to the term “legislative fact” in the quotation from Fitzgerald. This expression shows up elsewhere in constitutional and administrative law, Professor Bernard Schwartz explains it this way:
‘Adjudicative facts’ are simply the facts of the particular case. They are the facts about particular individuals and their businesses, activities, and properties. They involve individualized fact-finding which answers the questions of who did what, when, where, how, why, and with what motive or intent; they are the facts which are best developed in a trial, and are the kinds of facts that go to the jury in a jury trial. Legislative facts do not relate to particular parties; they are generalized facts which relate more broadly and may, as Justice Holmes once phrased it, serve as a ground for laying down a rule of law.
B. Schwartz, Administrative Law, § 71 (1976).
Here, as in Fitzgerald, the issue is whether the general legislative facts about adoptive parents, biological parents and University benefits establish a plausible basis for the classification between adoptive and biological. That is an issue for this Court in resolving the legal issue. Those issues do not need to satisfy an ordinary civil burden of proof and need not be “undisputed,” in the sense that term applies to adjudicative facts in summary judgment proceedings.
Based on these principles, the court must determine whether the challenged benefit plan is based on plausible distinctions between the identified groups. See Fitzgerald, 539 U.S. at 107 (requiring “ ‘a plausible policy reason for the classification’ ” (citation omitted)). Mathematical exactness between the goal of the statute and the means selected by the legislature to achieve that goal is not required. See Hushes v. Alexandria Scrap Corp., 426 U.S. 794, 814 (1976) (“[I]n the [economic] area ... the Equal Protection Clause does not demand a surveyor’s precision” in creating classifications.).
Several cases involving challenges to economic benefits are particularly instructive with respect to application of the test. Idaho Department of Employment v. Marlene G. Smith, 434 U.S. 100 (1977), the Petitioner challenged a ruling of the Idaho Supreme Court that the denial of unemployment benefits to otherwise eligible persons who attend school during the day violates the Equal Protection Clause of the Fourteenth Amendment. Idaho Code § 73-1312(a) (1973) states that “no person shall be deemed to be unemployed while he is attending a regular established school excluding night school. . .” The Idaho Supreme Court held that this provision impermissibly discriminates between those unemployed persons who attend night school and those who attend school during the day and that the state could not constitutionally deny unemployment benefits to an otherwise eligible person such as respondent whose attendance at daytime classes would not interfere with employment in her usual occupation and did not affect her availability for fulltime work. The United States Supreme Court reversed the decision of the Idaho court. Id.
The Supreme Court noted that it has consistently deferred to legislative determinations concerning the desirability of statutory classifications affecting the regulation of economic activity and the distribution of economic benefits. “If the classification has some ‘reasonable basis,’ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality.” Idaho Dept. of Employment. 434 U.S. 105, ___, 54 L.Ed.2d 327, 327, 98 S.Ct. 327, ___, quoting, Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 55 L.Ed. 369, 31 S.Ct. 337 (1911). The court noted that it was rational for the Idaho Legislature to conclude that daytime employment is far more plentiful than nighttime work and, consequently, that attending school during daytime hours imposes a greater restriction upon obtaining full-time employment than does attending school at night. In a world of limited resources, a State may legitimately extend unemployment benefits only to those who are willing to maximize their employment potential by not restricting their availability during the day by attending school. Id.
In Richard S. Schweiker v. George Hogan, 457 U.S. 569 (1982), petitioner challenged Medicaid eligibility rules. In upholding the validity of the legislation the court stated:
9

David A. JOHNSON, on his own behalf and on behalf of..., 2004 WL 5830547...
A belief that an Act of Congress may be inequitable or unwise is of course an insufficient basis on which to conclude that it is unconstitutional. Moreover, the validity of a broad legislative classification is not properly judged by focusing solely on the portion of the disfavored class that is affected most harshly by its terms. Califano v. Jobst. 434 U.S. 47, 54 L.Ed.2d 228, 98 S.Ct. 95.
The injury that they regard as inconsistent with constitutional principles of equal treatment could be avoided by denying them all Medicaid benefits, thus placing them in a worse position financially than they are in now. No interest in “equality” could be furthered by such a result. If a State may deny all benefits to the medically needy--while providing benefits to the categorically needy and rendering some persons who are on public assistance better off than others who are not--a State surely may narrow the gap between the two classes by providing partial benefits to the medically needy, even though certain members of that class may remain in a position less fortunate than those on public assistance.
Schweiker. 457 U.S. at 589.
In Otis R. Bowen v. Buenta M. Owens, et al., 476 U.S. 340 (1986), the petitioner challenged a difference in social security benefits. Certain provisions of the Social Security Act in effect between 1979 and 1983 authorized payment of survivor’s benefits from a wage earner’s account to a widowed spouse who remarried after age 60, but not to a similarly situated divorced widowed spouse. The question was whether those provisions violated the equal protection component of the Due Process Clause of the Fifth Amendment.
The Court noted that Congress faces an unusually difficult task in providing for the distribution of benefits under the Act. The court noted that the program is massive and requires Congress to make many distinctions among classes of beneficiaries while making allocations from a finite fund. In that context, the court’s review is deferential. Bowen, 476 U.S. at 345. “Governmental decisions to spend money to improve the general public welfare in one way and not another are ‘not confined to the courts. The discretion belongs to Congress, unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment.” Mathews v. De Castro, 429 U.S. 181, 185 (1976), quoting Helvering v. Davis, 301 U.S. 619, 640, 81 L.Ed. 1307, 57 S.Ct. 904 (1937).
In Jefferson v. Hackney, 406 U.S. 535 (1972) the court stated:
“Applying the traditional standard of review under [the Equal Protection Clause], we cannot say that Texas’ decision to provide somewhat lower welfare benefits for { Aid to Families with Dependent Children] recipients is invidious or irrational. Since budgetary constraints do not allow the payment of the full standard of need for all welfare recipients, the State may have concluded that the aged and infirm are the least able to the categorical grant recipients to bear the hardships of an inadequate standard of living. While different policy judgments are of course possible, it is not irrational for the State to believe that the young are more adaptable than the sick and elderly, especially because the latter have less hope of improving their situation in the years remaining to them. Whether or not one agrees with this state determination, there is nothing in the Constitution that forbids it.”
In United States Railroad Retirement Board v. Gerhard H. Fritz, 449 U.S. 166, reh. den. (US) 67 L.Ed.2d 385, 101 S.Ct. 1421 (1980), petitioner challenged provisions of the Railroad Retirement Act. The court stated: Where, as here, there are plausible reasons for Congress’ action, our inquiry is at an end. It is, of course, “constitutionally irrelevant whether this reasons in fact underlay the legislative decision,” Flemming v. Nestor, 363 U.S., 15 612, 4 L.Ed.2d. 1435, 80 S.Ct. 1367, because this Court has never insisted that a legislative body articulate its reasons for enacting a statute. This is particularly true where the legislature must necessarily engage in a process of line-drawing. The “task of classifying persons for ... benefits ... inevitably requires that some persons who have an almost equally strong claim to favored treatment be placed on different sides of the line.” Mathews v. Diaz, 426 U.S. 67, 83-84, 48 L.Ed.2d. 478, 96 S.Ct. 1883 (1976), and the fact the line might have been drawn differently at some points is a matter for legislative, rather than judicial, consideration.
These cases consistently recognize that other branches of government, in light of financial limitations, must be allowed the
10

David A. JOHNSON, on his own behalf and on behalf of..., 2004 WL 5830547...
flexibility to address problems one step at a time, focusing on a subset of the problem viewed presently as most acute. That is precisely this case.
C. THE UNIVERSITY CAN PLAUSIBLY BELIEVE THAT ADOPTIVE PARENTS HAVE A STRONGER EQUITABLE CLAIM THAN BIOLOGICAL PARENTS ON SCARE UNIVERSITY RESOURCES.
The University has provided this Court the expert opinions of an attorney with many years’ experience advising adoptive parents and running an adoption agency, an economist with expertise in the area of employment benefits, and the testimony of various University officials with first-hand knowledge of the history and economics of benefits at the University.
These legislative facts indicate that the out-of-pocket cost of adopting a child is ordinarily far greater than the out-of-pocket costs giving birth to a child, that the time needed away from work to arrange for adoption is both substantially greater and less predictable than the time away from work needed for the birth of a child, and that a working biological mother at the University and elsewhere will ordinarily have six weeks of sick leave associated with the medical disability that permits, as an indirect benefit, the biological mother to bond with the child.
The University also recognizes that retention of employees is good business and that its benefits package is important not only to recruitment but to retention. Viewed in its entirety, the University’s benefits package is substantially more generous than the average employer’s. It is also good business to listen to the needs and wants of employees when structuring a benefits package and the University has consistently followed that practice. The adoptive leave benefit first appeared in a collective bargaining proposal from AFSCME. As is its practice, and after consultation with their constituent group leaders, the University soon extended that benefit to its faculty and professional and scientific employees. This has occurred despite the fact that the number of biological parents employed at the University is far greater than the number of adoptive parents, indicating that our employees recognize the considerably greater need of their adoptive parent colleagues.
It is also significant that the next change in the use of sick leave proposed to the relevant University committee was that adoptive leave be increased from five days to ten days. When that proposal was being considered by the University’s Faculty and Staff Councils, the question was raised as to whether there should be some benefit for biological fathers. However, in the end it was decided that at a time when the University was striving to cut costs in many sectors to deal with Financial reality, expanding either benefit was not the best use of increasingly scare resources. (App. p. 3; Aff. D. True).
Employee benefits are a very substantial portion of the University budget and additions to those benefits must always be considered in light of scarce resources. Over the last few years, of course, the resources available from the State of Iowa for the University’s base budget have been slashed by $75 million. Under present conditions, any additional benefit would likely need to be financed by reduction of one or more existing benefits. (App. p. 2; Aff. D. True).
As previously noted, the EEOC Guidance on Parental Leave recognizes that adoptive parents have a greater equitable claim than biological parents to parental leave based simply on the standard provision of maternity leave as a medical disability. But the financial advantages of biological parents are really considerably greater than that if one takes into account that biological parents have the benefit of health insurance to cover the birth of a baby. Adoptive parents have no equivalent benefit to cover the acquisition costs of adopting a child - costs which on average are far higher than the cost of a normal birth. (App. p. 48; Interrogatory Response Barnes).
In addition, it should be recognized that biological parents, particularly a biological father, can make use of both unpaid FMLA leave and vacation benefits. Because of the greater predictability of a biological birth, a biological father could also set aside five days of vacation for spending time with a newly arrived child. In Mr. Johnson’s case, for example, he would have acquired 18 days of additional vacation over the nine months’ gestation period. It can scarcely be considered a major hardship to allocate 5 vacation days to parenting. Adoptions can take considerably longer than nine months and the timing and extent of leave needed for adoption is considerably less predictable. (App. p. 16; Interrogatory Response Barnes).
Finally, the University would certainly never disparage the right of biological parents to choose to begin or expand their family. Nor would it deny that some in Iowa believe that the state’s birthrate is too low. It also cannot be disputed that there are many millions of children throughout this country and the world who are under fed, under clothed, under educated and under loved. Those employees who choose to assist in meeting those needs have a strong moral claim to University support.
11

David A. JOHNSON, on his own behalf and on behalf of..., 2004 WL 5830547...
To summarize, the University is not saying that biological children would not benefit from more time with their working parents nor that compensated parental leave would not at least marginally increase the time that biological parents would spend with their children. It does contend that the existing benefit package provides great support for biological parents, much greater support in total than it provides for adoptive parents. And, it does contend that there is a very strong reason to believe our adoptive parents have a stronger equitable claim to be five days of paid parental leave currently provided them than do our biological parents,

CONCLUSION For the reasons set forth above, the Defendants request the Court to enter summary judgment against Plaintiff and all causes of action and dismiss the instant matter. The University of Iowa requests to be heard in oral argument on this matter. Original filed. Copy mailed to: James C. Larew LAREW LAW OFFICE 504 E. Bloomington Street Iowa City, Iowa 52245

Footnotes

1

See Defendants’ Statement of Uncontroverted Facts for complete recitation of the material facts.

12

 
 Case 3:03-cv-10062-REL-RAW Document 39

• Filed 07/23/04 Page 1 of 55

DAVID A. JOHNSON, on his own behalf and on behalf of all others similarly situated,
PLAINTIFF,
VS.
UNIVERSITY OF IOWA, STATE BOARD OF REGENTS, DAVID J. SKORTON, M.D., in his official capacity, DOUGLAS K. TRUE, in his official capacity, and SUSAN C. BUCKLEY, in her official capacity,
DEFENDANTS.

CIV. No.3 03 CVI0062
PLAINTIFF'S BRIEF IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT RE: LIABILITY

COMES NOW Plaintiff, David A. Johnson, by and through his attorney, James C. Larew, pursuant to F.R.Civ.P. 56 and L.R. 56.1, and for his BRIEF IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT RE: LIABILITY, hereby states as follows:
TABLE OF CONTENTS I. INTRODUCTION ........................................................................................... 4 II. ARGUMENT ................................................................................................ 15
A. SUMMARY JUDGMENT IS APPROPRIATE TO DETERMINE ALL LIABILITY ISSUES IN THIS CASE .................................... 15
B. "GENDER-PLUS" DISCRIMINATION IS PROHIBITED BY LAW, UNDER TITLE VII OF THE CIVIL RIGHTS
1

• Case 3:03-cv-10062-REL-RAW Document 39

• Filed 07/23/04 Page 2 of 55

ACT OF 1964 UNDER THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND UNDER 42 U.S.C. 1983 .......................... 17

C. PLAINTIFF DAVID A JOHNSON IS ENTITLED TO PARTIAL SUMMARY JUDGMENT UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED, BECAUSE THE UNIVERSITY OF IOWA'S PARENTAL LEAVE POLICY, BOTH FACIALLY AND AS APPLIED TO HIM AND TO SIMILARLY SITUATED BIOLOGICAL FATHERS, UNLAWFULLY DISCRIMINATES ON THE BASIS OF GENDER PLUS PARENTING STATUS........................................ 21

i. The Policy Violates Title VII, Facially and As Applied, Because it Unlawfully Discriminates on the Basis of Gender Plus Stereotypes............................28

D. PLAINTIFF DAVID A JOHNSON IS ENTITLED TO PARTIAL SUMMARY JUDGMENT UNDER THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION, BECAUSE THE UNIVERSITY OF IOWA'S PARENTAL LEAVE POLICY, BOTH FACIALLY AND AS APPLIED TO HIM AND TO SIMILARLY SITUATED BIOLOGICAL FATHERS UNLAWFULLY DISCRIMINATES ON THE BASIS OF GENDER PLUS PARENTING STATUS................................................................... 30

i. Parent-Child Bond as a Fundamental Right ................. 30

ii. The Policy Violates Constitutional Guarantees of Equal Protection and lor Due process Because it Discriminates on the Basis of Gender and This Discrimination is Not Substantially Related to the Achievement of An Important Governmental Objective ....................... 33
a. Threshold Standards under Equal Protection Analysis................................................. 33
lll. Heightened Scrutiny .................................................... 36
IV. The Economic Circumstances of An Employer

2

• Case 3:03-cv-10062-REL-RAW Document 39

• Filed 07/23/04 Page 3 of 55

are Not Compelling Reasons Sufficient to Allow the Employer to Violate a Person's Fundamental Liberty Interests............................37

v.

The Policy Violates Constitutional

Guarantees of Equal Protection and/or

Due Process Pursuant to the Fourteenth

Amendment Because the Exclusion of

Biological Fathers as a Category

of Persons From the Use of Accrued

Sick Leave for Childrearing, a Benefit

Conferred Upon All Others Similarly

Situated, is Arbitrary, Capricious and

Not Rationally Related to Any

Governmental Purpose ............................................. 38

a. Rational Basis..................................................39

vi. "Gender Plus" Revisited .................................. ,................. 40

V11 Summary Judgment for Liability Against Each Named Defendant Should be Entered Pursuant to 42 USC § 1983......................................................................... .42

E. PLAINTIFF DAVID A JOHNSON IS ENTITLED TO PARTIAL SUMMARY JUDGMENT UNDER IOWA CODE CHAPTER 216....................................................... 46
F. PLAINTIFF DAVID A. JOHNSON IS ENTITLED TO PARTIAL SUMMARY JUDGMENT UNDER THE EQUAL PROTECTION CLAUSE OF THE CONSTITUTION OF THE STATE OF IOWA ......................................................................... 48
i. Differentiation Between Biological Fathers and Biological Mothers in their Parenting Responsibilities is Unlawful............................................. 50
11. Parental Rights as Fundamental Rights under the Iowa Constitution....................................................50
III. Conclusion...... ............... .... ... ......,............................................ ,....... ,..54

3

• Case 3:03-cv-10062-REL-RAW Document 39

• Filed 07/23/04 Page 4 of 55

I. INTRODUCTION

The University ofIowa, at Section 22.8 of its Operations Manual, sets
forth the following Parental Leave Policy:
22.8 PARENTAL LEAVE POLICY
a. Purpose. To permit parents who have care giving responsibilities to have time off to spend with a child newly added to the family and, to the extent permitted by state law, to be paid during such leave. To adapt an employee's work schedule and/or duties to help reduce conflict with parental obligations.
b. Entitlement to Leave.
(1) Twelve-Month Faculty, Professional, Scientific, and NonOrganized Merit System Staff.
(a) Biological mothers are entitled to leave for any period of pregnancy-related temporary disability, to be charged against sick leave. Based on current medical practice, a leave of six weeks or less would not require the employee to provide disability documentation. If an employee's accumulated sick leave is insufficient to cover the period of disability, the employee will, at the employee's request, be granted a leave of absence without pay. Any request for absence beyond the period of disability is considered as a leave of absence without payor as vacation.
(b) A newly adoptive parent, including a domestic partner, is entitled to one week (5 days) of paid adoption leave to be charged against accrued sick leave. Departments are encouraged to arrange for additional leave as necessary. Departments should work with prospective adoptive parents seeking to adopt through an adoption agency with specific requirements for parental leave, to the extent the adoption leave is not sufficient to undertake an

4

• Case 3:03-cv-10062-REL-RAW Document 39

• Filed 07/23/04 Page 5 of 55

adoption. Time not charged to accrued sick leave may be charged to accrued vacation or taken as leave without pay.

(Emphasis added.) (Exhibit 7, App. 141-143)

Plaintiff David A. Johnson (hereafter, sometimes, "Mr. Johnson"), in

his capacity as Clerk IV employee of the Office of Registrar of the University

ofIowa, is subject to the terms and conditions of the Parental Leave Policy.

He is lawfully married to a woman, Jennie L. Embree, who is also an

employee of the University ofIowa. Her work as a Program Assistant at the

College of Nursing is also governed by the terms and conditions of the

Operations Manual, including its Parental Leave Policy. (Exhibit 1, Affidavit

of David A. Johnson, ~~ 1-10, App. 2-3)

In the Fall of 2002, in anticipation of the arrival of their first child, Mr.

Johnson and Ms. Embree referred to the Operations Manual and began

planning how they would be able to share in their parenting activities and

duties. Upon the birth of their child, Ms. Embree would be a half-time

employee of the University of Iowa, working 20 hours per week; Mr. Johnson

would be a full time employee ofthe institution. (Exhibit 1, Affidavit of

David A. Johnson, ~~ 10-12, App. 3)

The Operations Manual clearly directs that married employees of the

University of Iowa are allowed to share, between them, a maximum of 12

weeks of leave time upon the birth of a child, an entitlement that is

guaranteed under the Federal Family and Medical Leave Act (FMLA). The

5

• Case 3:03-cv-10062-REL-RAW Document 39

• Filed 07/23/04 Page 6 of 55

applicable provisions in the Operations Manual, however, are less-than-clear

as to how two these University ofIowa employees-one of them full-time, the

other of them part-time-were to make arrangements to share the combined

12-week leave period allowed to them. However, Mr. Johnson and Ms.

Embree both assumed, given the express language of the University ofIowa's

Parental Leave Policy, that each of them, as parents, would be able to use

their respective accrued paid sick leave hours for the purpose of taking time

to spend with their newborn child. (Exhibit I, Affidavit of David A. Johnson,

~~ 11-12, App. 3)

In October, 2002, Mr. Johnson attended a course taught by employees

of the University ofIowa's Human Resources Department regarding leave

policies. He learned, then, and for the first time, that the instructors

interpreted the Family Leave Policy to mean that biological fathers of

children newly added to families were precluded from using accrued paid sick

leave hours for parental leave purposes. All other parents except biological

fathers appeared to have this benefit of employment: they could use accrued

paid sick leave to have time off to spend with their children. (Exhibit I,

Affidavit of David A. Johnson, ~~ 13-15, App. 3-4)

Thinking that the course instructors had made a mistake in

interpreting the Parental Leave Policy, Mr. Johnson directed written

inquiries to a number of persons at the University of Iowa, starting with its

6

• Case 3:03-cv-10062-REL-RAW Document 39

• Filed 07/23/04 Page 7 of 55

Interim President, Willard L. Boyd. (Exhibit 17, E-Mail from David A.

Johnson to Willard L. Boyd, October 15, 2002, App. 194)

The responses Mr. Johnson received from the University of Iowa

officials affirmed the initial opinions of the Human Resources Department

course instructors' opinions: that biological fathers, solely due to their status

as biological fathers, were, and, apparently, alone of all types of parents,

precluded from using accrued paid sick leave to have time off to spend with a

child newly added to the family, notwithstanding the stated purpose of the

Parental Leave Policy-to allow parents to have time with children newly

added to their families-and notwithstanding the fact that no state law

prevented the use of accrued paid sick leave for this purpose. (Exhibit 1,

Mfidavit of David A. Johnson, ~~ 17-20, App. 5; Exhibit 15, E-Mail from

Jan Gorman to David Johnson, October 22,2002, App. 189; Exhibit 18, E-

Mail form David A. Johnson to Susan C. Buckley, October 23, 2002 and E-

Mail from Susan C. Buckley to David A. Johnson, App. 195-196)

Indeed, it is apparently undisputed that all parents-whether they be

single or married or in domestic partnerships, whether their children be

biological or adoptive--€xcept biological fathers, are conferred this benefit

under the Parental Leave Policy: the use of at least five days' paid accrued

sick leave to permit them to have time off to spend with a child newly added

to their respective families.

7

• Case 3:03-cv-10062-REL-RAW Document 39

• Filed 07/23/04 Page 8 of 55

For example, according to Defendants, the following parent-employees,

as individuals, whose terms and conditions of employment are subject to

Chapter 22 of the Operations Manual, are eligible to use accrued paid sick

leave for Parental Leave to have time off to spend with a child newly added to

the family if the employees have care giving responsibilities:

• Biological mothers, whether single, married, cross-gendered or a

domestic partner (Exhibit 2, Deposition of David Skorton, MD, 33:16-

25, 34:1-25, 35:1-9, App. 22)

• Adoptive mothers, whether single, married, cross-gendered or a

domestic partner. (Exhibit 2, Deposition of David Skorton, MD, 13-15,

23:19-25, 24:1-10, 32:23-25, 33:1-8, App. 19-22)

• Adoptive fathers, whether single, married, cross-gendered or a

domestic partner. (Exhibit 2, Deposition of David Skorton, MD, 29:20-

25, 30:1-7, 33:9-12, App.21-22)

• Parents who assume parental rights by surrogacy, if they are not the

biological father of the child. (Exhibit 2, Deposition of David Skorton,

MD, 24:20-25 to 25:1-4, App. 19-20)

Further, as intended by the University ofIowa, and as applied by it,

the following parent-employees, each as part of a couple, whose terms and

conditions of employment are each subject to Chapter 22 of the Operations

Manual, are each eligible to his or her own respective use accrued paid sick

8

• Case 3:03-cv-10062-REL-RAW Document 39

• Filed 07/23/04 Page 9 of 55

leave for Parental Leave to have time off to spend with a child newly added to

the family if each such employee has care giving responsibilities:

• A biological mother and her domestic partner who adopts the biological

mother's child each are entitled to the use of accrued paid sick leave for

Parental Leave (Exhibit 2, Deposition of David Skorton, MD, 44:8-17,

App.24).

• Both female domestic partners in a domestic partnership who adopt a

child from a third party are entitled to their separate, respective use of

accrued sick leave for Parental Leave (Exhibit 2, Deposition of David

Skorton, MD, 44:8-17, App. 24, Exhibit 9, Deposition of Lee Anna

Clark, 33-39, App. 160-161)

• Both male domestic partners in a domestic partnership who adopt a

child from a third party are entitled to their separate, respective use of

accrued sick leave for Parental Leave. (By contrast, if male domestic

partners were to have a child through a surrogacy, and if the child was

the biological offspring of one of them, then the biological partner of

the surrogate child would not be allowed use of accrued sick leave for

Parental Leave but the other domestic partner would be allowed the

use of such Parental Leave benefits.) (Exhibit 2, Deposition of David

Skorton, M.D., 44:8-17, App. 24).

The Parental Leave Policy on its face, as applied and as intended by

the University of Iowa, excludes biological fathers, in all instances: whether

9

• Case 3:03-cv-10062-REL-RAW Document 39

• Filed 07/23/04 Page 10 of 55

they be single, married or a domestic partner. (Exhibit 2, Deposition of

David Skorton, MD, 43: 14-22, 44:1-17, 45:17-25, 46:1-5, App. 24-25; Exhibit

9, Deposition of Lee Anna Clark, 32:10-19, 36:6-25, 37-38, App. 159-161)

For a University ofIowa employee such as Mr. Johnson, this exclusion

of employment benefits otherwise allowed for parents is based solely on that

person's status as a biological father, as noted by University of Iowa

President David Skorton, in his sworn deposition:

Q. You would agree with me that on its face, and as applied, that the parental leave policy confers benefits, or withhold benefits, to children and familes based upon whether the father of the child whose birth is the cause of the parental leave is the biological father or not?

A. Yes.

Q. As far as you are familiar with the case, Dr. Skorton, are you aware of any reason other than the fact that David Johnson was a biological father of his daughter that he was denied the ability to use accrued sick leave benefits?

A. No.

Q.That was the sole reason, as far as you know?

A. As far as I know.

Q. You would agree with me that except for biological fathers, all other parent employees of the University ofIowa who are biological or adtoptive parents of newborns, and who are subject to the provisions of the parental leave policy as set forth in section 22.8, are eligible to apply five days of accrued sick leave to the parental leave?

A. I believe that is correct.

(Exhibit 2, Deposition of David Skorton, MD, 43:13-25, 44:1-17, App. 24)

10

• Case 3:03-cv-10062-REL-RAW Document 39

• Filed 07/23/04 Page 11 of 55

The disparity of treatment is not simply one between biological fathers,

on the one hand, and adoptive parents, on the other hand, but, rather, it is a

disparity of treatment under which biological parents are treated differently

in their respective roles as mothers and fathers of children, as noted by

President David Skorton, in his sworn deposition:

Q. Would you agree with me that women who reproduce a child, but not men who reproduce a child, are conferred the benefits as provided under the parental leave policy to care for that child as set forth in operations manual 22.S?

A. Yes.

Q. Would you agree that under the University ofIowa parental leave policy biological mothers, adoptive mothers, and adoptive fathers are conferred the benefit of using accrued sick leave towards paid leave to care for a child?

A. Yes.

(Exhibit 2, Deposition of David Skorton, 45:17-25, 46:1-5, App. 25)

Upon the birth of their child, consistent with the purpose and language

of the Parental Leave Policy, and as approved by Human Resources

personnel in the College of Nursing in advance of that event, Mr. Johnson's

spouse, Ms. Embree, took four weeks of maternity leave, from her 20-hour per

week job, drawing on her own accrued paid sick leave 20 hours per week for

that purpose. Her employer required Ms. Embree to obtain a medical release

to return to work (despite the language of the University leave policy to the

contrary), five weeks post-partum, and she did so. Ms. Embree returned to

work in the fifth week post-partum, on a part time (ten hours per week)

11

• Case 3:03-cv-10062-REL-RAW Document 39

• Filed 07/23/04 Page 12 of 55

basis. She was, in addition, compensated ten hours per week for parental

leave for that week. The same arrangement applied for the sixth week post-

partum. On the seventh week after the birth of their child, Ms. Embree

returned to work and took no further paid Parental Leave time. She has

remained as a Program Assistant, working twenty hours per week, from that

date until the present moment. (Exhibit 1, Affidavit of David A. Johnson,

~~ 23-24, App. 6-7)

By contrast, as to Ms. Embree's husband and the child's father, Mr.

Johnson, the University ofIowa's preclusion of his use of any of his accrued

80 hours of paid sick leave meant that when he took two weeks' leave from

his full time job upon the birth of his daughter to spend time with the child

and to assist his wife in fulfilling their parenting duties, it was on an unpaid

basis. (Exhibit 1, Affidavit of David A. Johnson, ~ 25, App. 7)

Mr. Johnson's multiple informal, written approaches to the University

oflowa, requesting a change in this strange, unlawful policy produced no

results. He filed the present action, as a consequence, both in an effort to

obtain relieffor his family, and also to correct a systemic injustice that

adversely affects all similarly situated biological fathers and their families.

In response to Defendants' deprivation of an earned benefit of his

employment that is allowed to all other University of Iowa employees who

become parents, except for biological fathers, Mr. Johnson advances Federal

and pendent State law claims. Simply stated, as a parent, pursuant to the

12

• Case 3:03-cv-10062-REL-RAW Document 39

• Filed 07/23/04 Page 13 of 55

express terms and Purpose of the University ofIowa's Parental Leave Policy,

Mr. Johnson and other biological fathers who are similarly situated should be

allowed to use no less than five days (forty hours) of paid accrued sick leave

to spend time with children who are newly added to their families: the same

amount of time allowed to parents who adopt children.

Mr. Johnson believes that Defendants' conduct violates both Federal

and State Constitutional and statutory provisions. Under Federal law, Mr.

Johnson claims violations of Title VII of the Civil Rights Act of 1964, as

amended, and the Equal Protection Clause of the Fourteenth Amendment to

the Constitution of the United States. Because Defendants' conduct has been

intentional and has persevered even after notice has been provided

concerning the discrimination against biological fathers, Mr. Johnson has

also advanced a claim under 42 U.S.C. § 1983. Pendent State law claims

include ones alleging violations ofIowa's Civil Rights statute, Iowa Code

Chapter 216, and the Equal Protection Clause ofthe Constitution of the State

ofIowa.

Mr. Johnson avers that as to each and every one of his pending claims

there are no genuinely disputed facts regarding issues of liability and, for

that reason, he seeks summary judgment as to liability in his favor, against

all named Defendants.

As to the issue of damages, Mr. Johnson concedes that there are

matters, on at least two separate fronts, that are not appropriately subject to

13

• Case 3:03-cv-10062-REL-RAW Document 39

• Filed 07/23/04 Page 14 of 55

summary judgment consideration. First, as to his own claims, Mr. Johnson

seeks, in addition to payment of wages and benefits for 40 hours, monetary

damages for the deprivation suffered by him. A fact finder, after hearing all

of the relevant evidence, will need to make the damages determination.

Second, the Court certified a class action in this matter in response to Mr.

Johnson's efforts to obtain relieffor similarly situated biological fathers.

Because the exact membership of that class has not yet been determined, Mr.

Johnson believes that the issue of damages in connection with the class

cannot be ascertained as a part of his present Motion for Partial Summary

Judgment Re: Liability.

Further, as a part of this litigation, Mr. Johnson seeks an Order

enjoining the University ofIowa from further actions, under its Parental

Leave Policy, to provide to biological fathers who are subject to the Parental

Leave Policy the same right to use 40 hours' paid accrued sick leave upon the

arrival of newborns that is provided to all other similarly situated parents

who are not biological fathers. However, the claim for injunctive relief is not

a part of this Motion for Partial Summary Judgment.

14

Case 3:03-cv-10062-REL-RAW Document 39
•

• Filed 07/23/04 Page 15 of 55

II. ARGUMENT

A. SUMMARY JUDGMENT IS APPROPRIATE TO DETERMINE ALL LIABILITY ISSUES IN THIS CASE

Plaintiff David A. Johnson seeks summary judgment as to all issues of liability, under all Federal and State law claims in this litigation. Rule 56, in pertinent part, requires that,
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter oflaw. Fed. R. Civ. P. 56(c) (emphasis added).
When applying these standards, "the trial judge's function at the summary judgment stage of the proceedings is not to weigh the evidence and determine the truth of the matter, but rather is to determine whether there are genuine issues for trial." Inglis v. Buena Vista Univ., 235 F. Supp. 2d 1009, 1016-17 (N.D. Iowa 2002); Quick v. Donaldson Co., 90 F.3d 1372, 137677 (8th Cir. 1996);_Johnson v. Enron Corp,., 906 F.2d 1234, 1237 (8th Cir. 1990).
An issue of material fact is genuine if it has a real basis in the record. Hartnagel v. Norman, 953 F.2d 394 (8th Cir. 1992)(citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 89 L. Ed. 2d 538,106 S. Ct. 1348 (1986));accord Lockhart v. Cedar Rapids Comm. Sch. Dist., 963 F.

15

• Case 3:03-cv-10062-REL-RAW Document 39

• Filed 07/23/04 Page 16 of 55

Supp. 805, 814 n.3 (N.D. Iowa 1997)(citing Matsushita, 475 U.S. at 586-87).

As to whether a factual dispute is "material," the United States Supreme

Court has explained, "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).

Initially, "the moving party bears the initial responsibility of informing the court of the basis for its motion and identifying the parts of the record showing a "lack of a genuine issue." Inglis v. Buena Vista Univ., 235 F. Supp. 2d 1009, 1016-17 (N.D. Iowa 2002 (citing Hartnagel, 953 F.2d at 395; see also Rose-Maston v. NME Hospitals, Inc., 133 F.3d 1104, 1107 (8th Cir. 1998). When the moving party meets this burden, "the party opposing summary judgment 'must do more than simply show there is some metaphysical doubt as to the material facts.''' Inglis, 235 F.supp. at 1016 (citing Matsushita, 475 U.S. at 586. The opposing party is instead required to go beyond the pleadings and by "depositions, answers to interrogatories, and admissions on file," and affidavits and the designate "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324; Rabushka ex. rel. United States v. Crane Co., 122 F.3d 559, 562 (8th Cir. 1997).

If the opposing party fails to make a sufficient showing of an essential element of a claim for which that party has the burden of proof, then the

16

• Case 3:03-cv-10062-REL-RAW Document 39

• Filed 07/23/04 Page 17 of 55

movant is "entitled to judgment as a matter oflaw." Celotex, 477 U.S. at 323;

In re Temporomandibular Joint (TMJ) Implants Prod. Liab. Litig., 113 F.3d

1484, 1492 (8th Cir. 1997).

B. "GENDER-PLUS" DISCRIMINATION IS PROHIBITED BY LAW, UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 UNDER THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND UNDER 42 U.S.C. 1983

The term "gender plus" or "sex plus," "refers to a policy or practice by which an employer classifies employees on the basis of sex plus another characteristic." 1 BARBARA LINDEMANN & PAUL GROSSMAN, EMPLOYMENT DISCRIMINATION LAW 456 (3rd ed. 1996). In cases in which an employer discriminates "because of" gender and also another characteristic, " the employer does not discriminate against the class of men of women as a whole but, rather, treats differently a subclass of men or women." Id. The legal theory is applied, in appropriate cases, to gender-based employment discrimination claims arising under Title VII, under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and under 42 U.S.C. 1983.
The relevant Equal Protection concern in these cases is not whether a claim is characterized as "sex plus" or "gender plus," but rather, whether the plaintiff provides evidence of purposefully sex·discriminatory acts." Back, 365 F.3d at 118-119 (footnote omitted)("The term "sex plus" or "gender plus" is

17

• Case 3:03-cv-10062-REL-RAW Document 39

• Filed 07/23/04 Page 18 of 55

simply a heuristic. It is, in other words, a judicial convenience developed in

the context of Title VII to affirm that plaintiffs can, under certain

circumstances, survive summary judgment even when not all members of a

disfavored class are discriminated against.") Back, 365 F.3d at 118 (finding

"sex plus" discrimination is "certainly actionable in a § 1983 case."); See, e.g.,

Weinberger v. Wiesenfeld, 420 U.S. 636, 43 L. Ed. 2d 514, 95 S. Ct. 1225

(1975)(holding that a statute treating widowers less favorably than widows

violates the Equal Protection Clause). The Equal Protection Clause "forbids

sex discrimination no matter how it is labeled." Back, 365 F.3d at 118

Parental Leave Policy adopted by the University ofIowa and State

Board of Regents and developed and administered by University of Iowa

officials denies biological fathers the right to use any of their accrued paid

sick leave for the purpose of having time off to spend with children who are

newly added to their families. Defendants appear further to concede that no

state law precludes the use of accrued paid sick leave by biological parents for

this purpose.

Defendants appear to contend, despite these uncontested facts, that

the Parental Leave Policy is not discriminatory on the basis of sex because

adoptive fathers, i.e. other men, are provided benefits under the policy. Such

a position, if this is the one maintained by Defendents, belies the fact that an

employer need not discriminate against all members of a gender in order for

actions that treat subclasses of men and women differently to be unlawful.

18

• Case 3:03-cv-10062-REL-RAW Document 39

• Filed 07/23/04 Page 19 of 55

Phillips v. Martin Marietta Corp., 400 U.s. 542, 544, 91 S. Ct. 496, 27 L. Ed.

2d 613 (1971); Fisher v. Vassar College, 70 F.3d 1420, 1448 (2d Cir. 1995)

(Fisher I) ("The Supreme Court has adopted the proposition that sex

considered in conjunction with a second characteristic -- "sex plus" -- can

delineate a "protected group" and can therefore serve as the basis for a Title

VII suit."), on reh'g in bane, 114 F.3d 1332 (2d Cir. 1997), cert. denied, 522

U.S. 1075, 118 S. Ct. 851, 139 L. Ed. 2d 752 (1998).

So-called "sex plus" discrimination has been widely recognized by the

courts, pursuant to both Title VII and Section 1983, as viable legal theories,

in appropriate cases. Smith v. AVSC Int'I. Inc., 148 F. Supp. 2d 302 (S.D.

N.Y. 2001). The "sex plus" or "gender plus" theory of recovery emerged out of

the Phillips ruling, which upheld a sex discrimination challenge to an

employer policy which singled out a particular sub-class of women -women

with pre-school aged children-for adverse treatment. Courts have

recognized this theory of discrimination in a variety of instances and

contexts. See Sprogis v. United Airlines, 444 F.2d 1194, 1194-1198 (7th Cir.

1971)(finding challenge to employer policy requiring women to be unmarried

in order to be employed was actionable under Title VII); Jefferies v. Harris

Cty. Community Action Ass'n, 615 F.2d 1025, 1032 (5th Cir. 1980)

(recognizing sex plus race rendered black women a protected subclass under

Title VII and agreeing that "an employer should not escape from liability for

discrimination against black females by a showing that it does not

19

• Case 3:03-cv-10062-REL-RAW Document 39

• Filed 07/23/04 Page 20 of 55

discriminate against blacks and that it does not discriminate against females.

. . [D]iscrimination against black females can exist even in the absence of

discrimination against black men or white women."); Hicks v. Gates Rubber

Co., 833 F.2d 1406 (10th Cir. 1987)(finding sex plus race claim actionable

under Title VII); Hall v. Missouri Highway and Transportation Commission,

995 F. Supp. 1001, 1005 (E.D. Mo. 1998)(acknowledging the validity of a sex-

plus age theory of liability under Title VII); Graham v. Bendix Corp., 585 F.

Supp. 1036, 1047 (N.D. Ind. 1984) (same).

In Connecticut v. Teal, 457 U.S. 440, 455 (1982), the Supreme Court

stated that "Title VII does not permit the victim of a facially discriminatory

policy to be told that he has not been wronged because other persons of his or

her race or sex were hired." The Court emphasized that "Congress never

intended to give an employer license to discriminate against some employees

on the basis of race or sex merely because he favorably treats other members

ofthe employees' group." Id. (emphasis added). Thus, the "sex plus"

conceptualization of liability is necessary to effectuate the purpose of Title

VII and Section 1983 based discrimination claims because "free to add non-

sex factors, the rankest sort of discrimination ... can be worked by

employers." Phillips v. Martin Marietta Corp., 416 F.2d 1257, 1260 (5th Cir.

1969) (Brown, C.J., dissenting from denial of rehearing en banc). It is

apparent a long history of employer practices that "any meaningful regime of

anti-discrimination law must encompass such claims." Back, 365 F.3d at 119.

20

• Case 3:03-cv-10062-REL-RAW Document 39

• Filed 07/23/04 Page 21 of 55

To make out a claim for the violation of equal protection on the basis of

sex, the plaintiff must prove that he or she "suffered purposeful or intentional

discrimination on the basis of gender." Back, 365 F.3d at 118; see also Village

of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S.

252, 264-65 (1977). Purposeful or intentional discrimination does not require

a showing that the discrimination was exclusively on the basis of sex,

however. To be actionable, "sex plus" discrimination must be premised on

either a demonstration by the plaintiff class of a corresponding subclass of

members of the opposite sex or concern a constitutionally protected activity

such as marriage or childrearing. Jefferies v. Harris County Community

Action Association, 615 F.2d 1025, 1032-1035 (5th Cir. 1980); Sprogis v.

United Airlines. Inc., 444 F.2d 1194, 1198 (7th Cir. 1971).

In this case the challenged Parental leave Policy discriminates on the

basis of a "sex plus" characteristic-namely, sex plus biological parenthood

and a fundamental right-namely the right of a parent to care for his child,

maintain and develop a relationship with his child, and to the companionship

of his child.

C. PLAINTIFF DAVID A JOHNSON IS ENTITLED TO PARTIAL SUMMARY JUDGMENT UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED, BECAUSE THE UNIVERSITY OF IOWA'S PARENTAL LEAVE POLICY, BOTH FACIALLY AND AS APPLIED TO HIM AND TO SIMILARLY SITUATED BIOLOGICAL FATHERS, UNLAWFULLY DISCRIMINATES ON THE BASIS OF GENDER PLUS PARENTING STATUS

21

• Case 3:03-cv-10062-REL-RAW Document 39

• Filed 07/23/04 Page 22 of 55

Section 703(a) of the Civil Rights Act of 1964, as amended at 42 U.

S. C. § 2000e-2(a) (Title (VII», "prohibits sex-based classifications in terms

and conditions of employment, in hiring and discharging decisions, and in

other employment decisions that adversely affect an employee's status." Int'l

Union. United Auto Workers. v. Johnson Controls, 499 U.S. 187, 197-200

(1991). When a discriminatory policy is the vehicle of the adverse

employment activity, direct evidence of discrimination is present. Id. When

direct evidence of discrimination is present, the burden shifting paradigm

known as the "McDonnell Douglas" test is inapplicable. Teamsters v. United

States, 431 U.S. 324, 358, n.44 (1977); Trans World Airlines. Inc. v. Thurston

Et AI. 469 U.S. 111, 121-122 (1985).

The "sex plus" theory of discrimination has been utilized by courts

charged with determining the legality ofleave policies which discriminate

between different subgroups of men and women under Title VII of the Civil

Rights Act of 1964, as amended. In Shafer v. Board of Public Education of

the School Dist. of Pittsburgh, 903 F.2d 243 (3rd Cir. 1990), the Board of

Education pursuant to a collective bargaining agreement, provided a leave

policy which allowed female employees to take "1) a period of sick leave

combined with an unpaid leave for childbearing or childrearing for a

maximum of one year, or 2) maternity leave not exceeding one year" without

a showing of a disability related to pregnancy, i.e. did not impose a

requirement that the leave be related to pregnancy. Shafer, 903 F.3d at 248.

22

• Case 3:03-cv-10062-REL-RAW Document 39

• Filed 07/23/04 Page 23 of 55

The Board of Education denied a three-month unpaid leave request by a male

employee to care for his son pursuant to this policy. Upholding the "sex plus"

challenge made by the male employee to the policy, the Court held as a

matter oflaw that the leave policy violated Title VII. In support ofthis

conclusion, the court found that the leave policy was not exclusively for the

purpose of allowing women to recover from the birthing process, but was

explicitly for child rearing or childbearing, and that the policy did not impose

a requirement that the "female be disabled in order to obtain the unpaid

leave." Id. These facts rendered the leave policy discriminatory against males

with child care responsibilities on the basis of sex and "per se void for any

leave granted beyond the period of actual physical disability on account of

pregnancy, childbirth or related conditions." Id.

Mr. Johnson brings to this Court a factual record which demonstrates,

with direct evidence, that he, as a biological father, along with all others

similarly situated to him as class members, have been and continue to be

discriminated against as a matter of official University of Iowa policy and

practice. Under the terms of the Parental Leave Policy, Operations Manual

Section 22.8, Mr. Johnson should have been allowed to use up to forty hours

of his accrued paid sick leave-an amount allowed to all adoptive parents-

for the purpose of spending time with and parenting his child. After all, on

November 16, 2002, the date of his child's birth, Mr. Johnson was a

University of Iowa merit, non-union employee who, while in the service of his

23

• Case 3:03-cv-10062-REL-RAW Document 39

• Filed 07/23/04 Page 24 of 55

employer, had earned more than eighty hours of accrued sick leave. As of

that date, he was a parent with care giving responsibilities.

Defendants, under the University of Iowa Operations Manual, Section

22.8, the "Parental Leave Policy," expressly exclude Mr. Johnson and other

similarly-situated biological fathers from access to earned and accrued paid

sick leave benefits referred to in that policy-a policy whose express Purpose

is to support parental relationships with children-on the basis of their

gender, in conjunction with their status as biological fathers. The same

benefit is offered to all other similarly situated parents who are not biological

fathers. Specifically, on the face of the policy and as applied, biological

fathers as a class are excluded entirely from the usage of accrued sick leave

for the purpose of child care or childrearing for those children who are newly

added to families, while biological mothers as well as adoptive fathers and

mothers, that is, all other parents, are allowed the usage of their accrued sick

leave for this purpose.

Because the stated Purpose ofthe Parental Leave Policy is to provide

all parents who have care giving responsibilities to have time off to spend with

a child newly added to the family, and because there is no state law

precluding a parent to be paid during such leave, Mr. Johnson, upon the birth

of his daughter, was qualified for parental leave, and, in turn, should have

been allowed to utilize up to four hours of his accrued paid sick leave for the

purpose of caring for and bonding with his newborn child.

24

• Case 3:03-cv-10062-REL-RAW Document 39

• Filed 07/23/04 Page 25 of 55

The University of Iowa, however, denied Mr. Johnson the usage of his

accrued paid sick leave for the purposes described by the Parental Leave

Policy-that is, having time to spend with his child and assuming care giving

responsibilities for his child. The denial was based solely on Mr. Johnson's

status a biological father of a newborn child.

Such a Policy, as interpreted and applied by University of Iowa

administrators, is not neutral. Is does not merely have a discriminatory effect

on male employees. It classifies persons on the basis of gender and

reproductive capacity, and uses that classification scheme as a basis of

denying one classification of parent benefits of employment allowed to other

classifications. It is therefore, under Title VII, directly discriminatory.

Abraham v. Graphic Arts International Union, 660 F.2d 811,819 (D.C.C.

1981) ("An employer can incur a Title VII violation as much by lack of an

adequate leave policy as by unequal application of a policy it does have. Title

VII outlaws employment discrimination traceable to an employee's gender,

and it takes little imagination to see an omission may in particular

circumstances be as invidious as positive action.")

Furthermore, even if it could be said that Defendants lacked of any ill-

will or animus towards Mr. Johnson, specifically, or towards biological

fathers, as a category of parents, such a fact does not excuse their exclusion

from benefits to those who are similarly situated in terms of their

reproductive capacity based upon their reproductive capacity. Concluding

25

• Case 3:03-cv-10062-REL-RAW Document 39

• Filed 07/23/04 Page 26 of 55

that a challenged policy was not neutral because it did not apply to the

reproductive capacity of the company's male employees in the same way as it

applied to that offemale employees the United States Supreme Court, in Int'l

Union. United Auto v. Johnson Controls, 499 U.S. 187, 199 (1991), forcefully

relegated the motivation for the discriminatory policy irrelevant to a Title VII

analysis:

[T]he absence of a malevolent motive does not convert a facially discriminatory policy into a neutral policy with a discriminatory effect. Whether an employment practice involves disparate treatment through explicit facial discrimination does not depend on why the employer discriminates but rather on the explicit terms of the discrimination.

Int'l Union. United Auto v. Johnson Controls, 499 U.S. 187, 199-200 (1991). The present facts, and their consequences, are strikingly analogous to
prior cases in which employers have been precluded, as a matter oflaw, from implementing policies whose explicit terms result in disparate gender-based discrimination. The Operations Manual, Section 22.8, the Parental Leave Policy, provides explicitly that the leave allowances permitted under it are for the purpose of assisting parents in their childrearing capacities. The Policy is not limited to pregnancy related disability. In fact, the provision defining the terms of leave for biological mothers under this Policy does not require any showing of continuing disability, nor does it require the more administratively feasible demonstration of a woman's fitness to return to work prior to the six week "disability" allowance. The Policy, by its own

26

• Case 3:03-cv-10062-REL-RAW Document 39

• Filed 07/23/04 Page 27 of 55

terms, is, instead, for the explicit and primary purpose of providing paid

leave to parents with care giving responsibilities.

It cannot be genuinely disputed that biological fathers are parents.

Nor can it be genuinely disputed, in this instance, that Mr. Johnson, upon the

birth of his daughter, had care-giving responsibilities. The Policy, as drafted

and as applied, for example, in the present instance, grants women who

require less than the six weeks to recover from the birth of their children paid

leave in the form of accrued sick leave for the purpose of caring for their

newborn prior to the conclusion of their presumptive disability period.

(Exhibit 1, Mfidavit of David A. Johnson, ~~ 1-25, App. 1-7) Clearly, the

Policy provides parental leave for women that is not limited to their period of

disability due to the birth process. In doing so, the policy discriminates

against biological fathers who are similarly situated in terms of their care-

giving responsibilities as parents.

In sum, the University ofIowa's Parental Leave Policy "does not pass

the simple test of whether the evidence shows 'treatment of a person in a

manner which but for that person's sex would be different.'" Los Angeles

Dept. of Water and Power v. Manhart, 435 U.S. 702, 711 (1978) (quoting

Developments in the Law, Employment Discrimination and Title VII of the

Civil Rights Act of 1964,84 Harv. L. Rev. 1109, 1170 (1971)). Clearly, the

University ofIowa's Parental Leave Policy, as applied to biological fathers,

27

• Case 3:03-cv-10062-REL-RAW Document 39

• Filed 07/23/04 Page 28 of 55

constitutes sex discrimination and, as such, is forbidden under Title VII of

the Civil Rights Act of 1964, as amended.

1. The Policy Violates Title VII, Facially and As Applied, Because it Unlawfully Discriminates on the Basis of Gender Plus Stereotypes

Historically, arguably, because most employers, like the University of Iowa, have not provided paid leave to fathers for childrearing purposes, and because most families cannot afford to take unpaid leave for any extended period, mothers, the class granted paid leave, have become the de facto caretakers of children and have used their leave to fulfill this critical role. Thus, the "presumption" inherent to the subsection of the policy governing leave to biological mothers is not only that women are universally disabled for a period of six weeks following birth, but also that a woman who gives birth is and should be the sole or primary care taker of the child immediately following birth and during the first days of a child's development, whether or not she and the father of the child would otherwise choose nontraditional parenting roles which would allow mom the opportunity to more fully participate in the workplace and dad the opportunity to bond with and care for his child during the first days of life. By favoring the parenting role of women who are biological mothers over the parenting role of men who are biological fathers, the policy reinforces debilitating stereotypes and interferes with the fundamental right of a parent to care for and enjoy the companionship of his child, in contravention of the intent of Title VII. The

28

• Case 3:03-cv-10062-REL-RAW Document 39

• Filed 07/23/04 Page 29 of 55

approach to parental leave adopted by the University of Iowa in its

Operations Manual, specifically the exclusion of biological fathers from its

purview, in practice promotes and reinforces gender stereotypes about the

roles men and women play in domestic life. The United States Supreme

Court understands and has recently made explicit that theses stereotypes

underlie the unequal provision of family care leave to men and women by

private and public employers and are pervasive enough to require Congress

to take prophylactic measures, such as the passage of the Family Medical

Leave Act of 1996 (FMLA), to counter them. Relating the reasons for the

Court's conclusions about the need for the FMLA, Justice Rehnquist opined:

Stereotypes about women's domestic roles are reinforced by parallel stereotypes presuming a lack of domestic responsibilities for men. Because employers continued to regard the family as the woman's domain, they often denied men similar accommodations or discouraged them from taking leave. These mutually reinforcing stereotypes created a self-fulfilling cycle of discrimination that forced women to continue to assume the role of primary family caregiver, and fostered employers' stereotypical views about women's commitment to work and their value as employees. Those perceptions, in turn, Congress reasoned, lead to subtle discrimination that may be difficult to detect on a case-by-case basis.

Nevada Dept. of Human Resources v. Hibbs, 538 U.s. 721, 736 (2003).

It is simply unconstitutional and contrary to law to treat men and

women differently simply because of presumptions about the respective roles

they play in family life. See Weinberger v. Wiesenfeld, 420 U.s. 636 (1975).

The University ofIowa Policy, by excluding biological fathers from a benefit

29

• Case 3:03-cv-10062-REL-RAW Document 39

• Filed 07/23/04 Page 30 of 55

conferred for the purpose of taking on a caretaking role as a parent, does just

that.

D. PLAINTIFF DAVID A JOHNSON IS ENTITLED TO PARTIAL SUMMARY JUDGMENT UNDER THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION, BECAUSE THE UNIVERSITY OF IOWA'S PARENTAL LEAVE POLICY, BOTH FACIALLY AND AS APPLIED TO HIM AND TO SIMILARLY SITUATED BIOLOGICAL FATHERS UNLAWFULLY DISCRIMINATES ON THE BASIS OF GENDER PLUS PARENTING STATUS

Plaintiff David A Johnson alleges that Defendants have violated his right to equal protection of the laws of the land, as guaranteed to him under the Section 1 of the Fourteenth Amendment to the Constitution of the United States. Under the familiar analyses performed by our Courts in equal protection cases, Mr. Johnson's claim is subject to heightened scrutiny because Defendants' actions adversely affect his ability to exercise his fundamental rights as a parent.
1. Parent-Child Bond as a Fundamental Right Furthermore, the Parental Leave Policy, by denying him an opportunity to utilize his accrued sick leave in order to care for his newborn child at the time and shortly after birth, interferes with Mr. Johnson's right to bond with and care for his child. It is well established in federal law that the right to maintain and develop a parent-child relationship is a fundamental liberty interest that is protected against unwarranted state

30

• Case 3:03-cv-10062-REL-RAW Document 39

• Filed 07/23/04 Page 31 of 55

intrusion. See Troxel v. Granville. 530 U.S. 57, 65, 120 S. Ct. 2054, 2060, 147

L. Ed. 2d 49, 56 (2000)(an individual parent's interest in obtaining or

maintaining custody of a child "is perhaps the oldest of the [recognized]

fundamental liberty interests"); M.L.B. v. S.L.J., 519 U.S. 102, 119, 117 S. Ct.

555, 565, 136 L. Ed. 2d 473, 489 (1996)(holding in a case resulting in a

divided opinion, that nonetheless the U. S. Supreme Court is unanimous in

its view that" 'the interest of parents in their relationship with their children

is sufficiently fundamental to come within the finite class of liberty interests

protected by the Fourteenth Amendment.'" (quoting Santosky v. Kramer, 455

U.s. 745, 774 (1982) (Rehnquist, J., dissenting»; See, e.g., Stanley v. Illinois,

405 U.S. 645, 651 (1972)("It is plain that the interest of a parent in the

companionship, care, custody, and management of his or her children 'comes

to this Court with a momentum for respect lacking when appeal is made to

liberties which derive merely from shifting economic arrangements'" (citation

omitted» (emphasis added); Wisconsin v. Yoder, 406 U.S. 205, 232,

(1972)("The history and culture of Western civilization reflect a strong

tradition of parental concern for the nurture and upbringing of their children.

This primary role of the parents in the upbringing of their children is now

established beyond debate as an enduring American tradition"); Quilloin v.

Walcott, 434 U.S. 246, 255, (1978) ("We have recognized on numerous

occasions that the relationship between parent and child is constitutionally

protected"); Parham v. J. R., 442 U.s. 584, 602 (1979) ("Our jurisprudence

31

• Case 3:03-cv-10062-REL-RAW Document 39

• Filed 07/23/04 Page 32 of 55

historically has reflected Western civilization concepts of the family as a unit

with broad parental authority over minor children. Our cases have

consistently followed that course"); Santosky v. Kramer. 455 U.S. 745, 753

(1982)(discussing "the fundamental liberty interest of natural parents in the

care, custody, and management of their child").

Numerous courts have found that a fundamental right is in fact at

issue in the allowance ofleave to care for and bond with children and

suggested that "[b]ecause individuals have a due process right to be free from

undue interference with their procreation, sexuality, and family, ... a strict

level of scrutiny must be applied to any state action that discriminates on the

basis of childbearing or family care." Back v. Hastings on Hudson Union Free

School District, 365 F.3d 107, 118, n6 (2nd Cir. 2004); see, e.g., Lawrence v.

Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003); Eisenstadt v.

Baird, 405 U.s. 438, 31 L. Ed. 2d 349, 92 S. Ct. 1029 (1972); Griswold v.

Connecticut, 381 U.S. 479, 14 L. Ed. 2d 510, 85 S. Ct. 1678 (1965); Pierce v.

Soc'y of Sisters, 268 U.S. 510, 69 L. Ed. 1070,45 S. Ct. 571 (1925); Joan C.

Williams & Nancy Segal, Beyond the Maternal Wall: Relief for Family

Caregivers Who Are Discriminated Against on the Job, 26 HARV. WOMEN'S L.

J. 77, 152& n.506 (2003).

Clearly, the interference with a parent's bonding with and care for a

child implicates a fundamental right. Mr. Johnson has alleged that the

Parental Leave Policy created an obstacle to the maintenance and

32

• Case 3:03-cv-10062-REL-RAW Document 39

• Filed 07/23/04 Page 33 of 55

development of his own parent-child relationship by denying him, in his

capacity as a biological father of a newborn child, the use of his accrued paid

sick leave to spend time with his daughter and to provide care giving

responsibilities to her-a benefit of employment granted to all other similarly

situated parents who are subject to the same Policy.

11. The Policy Violates Constitutional Guarantees of Equal Protection and lor Due process Because it Discriminates on the Basisof Gender and This Discrimination is Not Substantially Related to the Achievement of An Important Governmental Objective

a. Threshold Standards under Equal Protection Analysis

The Equal Protection Clause generally "prohibits state and local governments from treating similarly situated persons differently." Rector v. City & County of Denver, 348 F.3d 935, 949 (10th Cir. 2003). In Hishon v. King & Spalding. 467 U.S. 69 (1984), the United States Supreme Court held that "[aJ benefit that is part and parcel of the employment relationship may not be doled out in a discriminatory fashion, even if the employer would be free ... not to provide the benefit at all." Id. at 75.

When a fundamental right or suspect classification is implicated in the provision of a benefit, heightened scrutiny of the adverse action is required. Id. Individuals "have a clear right, protected by the Fourteenth Amendment, to be free from discrimination on the basis of sex in public employment." Back v. Hastings on Hudson Union Free School District, 365 F.3d 107, 117 (2nd

33

• Case 3:03-cv-10062-REL-RAW Document 39

• Filed 07/23/04 Page 34 of 55

Cir. 2004); see Davis v. Passman, 442 U.S. 228, 234-35, 60 L. Ed. 2d 846, 99

S. Ct. 2264 (1979); Rodriguez v. Bd. of Educ., 620 F.2d 362,366 (2d Cir.

1980). "Gender-based distinctions 'must serve important governmental

objectives and must be substantially related to achievement of those

objectives' in order to withstand judicial scrutiny under the Equal Protection

Clause." Caban v. Mohammed, 441 U.S. 380, 388 (1979) (quoting Craig v.

Boren, 429 U.S. 190, 197 (1976); see also Reed v. Reed, 404 U.S. 71 (1971).

In the context of public employment rights, substantive due process and equal protection doctrines frequently overlap. Charles v. Baesler, 910 F.2d 1349, 1356 (6th CA 1990). The substantive component ofthe due process clause ofthe Fourteenth Amendment "incorporates many, if not all, of the Constitution's specific civil rights protections, including the right to equal protection of the law." Id.

Once proven, "[dJiscrimination based on gender ... can only be tolerated if the state provides an 'exceedingly persuasive justification' for the rule or practice." Back, 365 F.3d at 118; see also United States v. Virginia, 518 U.S. 515, 524 (1996). A challenge to a facially discriminatory policy based on "sex plus" parental status, such as the Parental Leave Policy promulgated by the University ofIowa, or one which has been shown to have a disparate impact on members of a protected class, requires that the reviewing Court utilize a heightened scrutiny analysis. Craig v. Boren, 429 U.S. 190, 50 L. Ed. 2d 397, 97 S. Ct. 451 (1976). Such scrutiny is required because "[aJ

34

• Case 3:03-cv-10062-REL-RAW Document 39

• Filed 07/23/04 Page 35 of 55

classification relying explicitly upon gender peculiarly suggests that the state

is pursuing an improper purpose, one that furthers or contains 'fixed notions

concerning the roles and abilities of males and females.'" Mississippi Univ.

for Women v. Hogan, 458 U.S. 718, 725 (1982). While generally, equal

protection analysis requires that the Fourteenth Amendment be applied only

to groups that are similarly situated, "[e]nding the inquiry at this point,

however, is unwarranted if there are other indications of gender-disparate

treatment or invidious and intentional discrimination.

The Eighth Circuit has indicated that, even when the comparison groups are not found to be similarly situated, the District Court must proceed to consider whether differential treatment has a rational relationship to a legitimate state interest. Bills v. Dahm, 32 F.3d 333, 336 (8th Cir. 1994). In such instances, Equal Protection claims must be reviewed to ensure that there had been no invidious discrimination based upon an intent to discriminate. Ricketts v. City of Columbia, 36 F.3d 775, 781 (8th Cir. 1994). Pargo v. Elliott, 894 F. Supp. 1243, 1253-54 (S.D. Iowa 1995)_ Parham v. Hughes, 441 U.S. 347, 348, 60 L. Ed. 2d 269,99 S. Ct. 1742 (1979) (determining that although the mother and father were not similarly situated with regard to a statute that denied a biological father the right to recover in a wrongful death action for an illegitimate child, that the statute was nonetheless required to a rational relationship to a legitimate state interest.)

35

• Case 3:03-cv-10062-REL-RAW Document 39

• Filed 07/23/04 Page 36 of 55

A contested policy is not rendered neutral because it renders benefits

to some males, nor even because biological fathers may be found not to be

similarly situated to other groups. Ultimately, in determining whether an

employee has been discriminated against in violation of the law" because of

such individual's . .. sex," the courts have consistently emphasized that the

ultimate issue is "the reasons for the individual plaintiff's treatment, not the

relative treatment of different groups within the workplace. As a result,

discrimination against one employee cannot be cured, or disproven, solely by

favorable, or equitable, treatment of other employees of the same race or sex."

Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001)(citations omitted).

Ill. Heightened Scrutiny

The challenged Parental Leave Policy, on its face, has been established for the following purpose: "To permit parents who have caregiving responsibilities to have time off to spend with a child newly added to the family." (Exhibit 3, Section 22.8, App. 78). It is not disputed that biological fathers are, admittedly, parents with caregiving responsibilities under the policy. (Exhibits 2, Skorton, 21:10-16, Gorman, 56:7-21, Buckley 6:24-77;18) Yet, as implemented by the University ofIowa, biological fathers are precluded from taking paid Parental Leave in the form of accrued sick leave to care for their newborn children. All other parents, including adoptive parents and biological mothers, are allowed to take paid Parental Leave, drawing on accrued sick leave, for this purpose.

36

• Case 3:03-cv-10062-REL-RAW Document 39

• Filed 07/23/04 Page 37 of 55

Mr. Johnson was not permitted under the Parental Leave Policy as

written and as interpreted by University of Iowa officials, to utilize any of his

accrued sick leave for the purpose of caring for his newborn child even though

it is not disputed that Mr. Johnson: was a parent who had care giving

responsibilities; wanted to have time off to spend with his newborn daughter;

and had accrued adequate paid sick leave to cover the Parental Leave period

that is at issue (five work days, or forty hours).

IV. The Economic Circumstances of An Employer are Not Compelling Reasons Sufficient to Allow the Employer to
Violate a Person's Fundamental Liberty Interests

It would appear that Defendants' justification for excluding biological fathers-and only biological fathers-from using accrued paid sick leave for the purpose of Parental Leave is that such a practice would impose economic costs on the University of Iowa.
The proposition is an interesting, if speculative one. The University of Iowa's fellow Regents institution of higher learning, Iowa State University, backed by its own President, has undertaken studies in support of its proposal to allow all employees who are parents-whether male or female, whether married or not, whether biological or adoptive-six weeks of paid parental leave upon the arrival of new children in their families. The study, published to State Board of Regents at the same time this lawsuit was filed, concluded that such a policy would be cost effective to Iowa State University. (Exhibit 12, Iowa State University Policy on Leave for the Arrival of

37

• Case 3:03-cv-10062-REL-RAW Document 39

• Filed 07/23/04 Page 38 of 55

Children, App. 175-183). This expansion of benefits, if approved, will provide

biological fathers more rights to paid parental leave than they presently

enjoy (and, in contrast to comparably-employed persons at the University of

Iowa): the use of up to five days of paid accrued sick leave. (Exhibit 6, E-

Mail from Jerilyn Rasmusson, Benefits Office, Iowa State University, to

David Johnson, October 23, 2002, App. 127-128, "We differ slightly [from the

University of Iowa], following is how we administer FMLAlBirth for

P&S/Faculty positions:... Biological fathers-meets the qualification for

FMLA, 5 days of sick leave & vacation-up to accrued amounts.")

However, even if, for the purpose of argument, one were to assume that

Mr. Johnson's much more modest request-that biological fathers at the

University ofIowa be treated like all other parents at the University of Iowa

and like biological fathers at Iowa State University, by being allowed to use

five days of accrued sick leave for the purpose of Parental Leave-would

impose some cost upon the University ofIowa, such an assumption based on

institutional fiscal self-interest is not compelling, when balanced against a

parson's parental rights. M.L.B. v S.L.J, 519 U.S. 102 (1996)

v. Even ifthe Court Were to Determine that the Parental Leave Policy Should be Subjected to a Rational Basis Test-and Not to Heightened Scrutiny-The Policy Violates Constitutional Guarantees of Equal Protection and/or Due Process Pursuant to the Fourteenth Amendment Because the Exclusion of Biological Fathers as a Category of Persons From the Use of Accrued Sick Leave for Childrearing, a Benefit Conferred Upon All Others Similarly Situated, is Arbitrary, Capricious and Not Rationally Related to Any Governmental Purpose

38

• Case 3:03-cv-10062-REL-RAW Document 39

• Filed 07/23/04 Page 39 of 55

a. Rational Basis A government's classification must be rationally related to a legitimate government interest in order to be constitutional. Riddle v. Mondragon, 83 F.3d 1197, 1207 (10th Cir. 1996). The Fourteenth Amendment Equal Protection Clause of the United States Constitution requires the states to treat similarly situated persons in a substantially equivalent manner. F.S. Royster Guano Co. v. Virginia, 253 U.s. 412, 415 (1920); Cleburne v. Cleburne Living Ctr., 473 U.s. 432 (1985). In applying the rational-basis standard the Eighth Circuit has apparently recognized a substantive due process right to be free from what the court has called "truly irrational" action. Chesterfield Dev. Corp. v. City of Chesterfield, 963 F,2d 1102, 1104 (8th Cir. 1992). For example, the Eighth Circuit, relying upon the Supreme Court's guidance in Harrah Independent School District v. Martin, 440 U.S. 194 (1979)(per curiam), has recognized protection from "arbitary and capricious" deprivations of contractual rights that impinge upon liberty interests in a public employment context." Moore v. Warwick Public School Dist. No. 29, 794 F.2d 322, 329 (8th Cir. 1986); See also Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed, 2d 80, 78 S. Ct. 99 (1957). The Harrah Court examined the actions of a school board in refusing to renew the contract of a tenured teacher for refusing to comply with new continuing education requirements, While ultimately deciding that the school
39

• Case 3:03-cv-10062-REL-RAW Document 39

• Filed 07/23/04 Page 40 of 55

board had stated a statutorily authorized rational for the non renewal

following notice and a hearing, the Court also recognized that "the Due

Process Clause of the Fourteenth Amendment not only accords procedural

safeguards to protected interests, but likewise protects substantive aspects of

liberty against impermissible governmental restrictions." Harrah, 440 U.S. at

197. While it is the burden of the plaintiff challenging the rule or regulation

"to show that there is no rational connection" between the state agency's

action and its stated interest" it also necessary that the stated interest be

legitimate and the regulation reasonable. Id. at 198; Moore v. Warwick

Public School Dist. No. 29, 794 F.2d 322, 329 (8th Cir. 1986).

VI. "Gender Plus" Revisited

Establishing that biological fathers are, in fact, a protected class for

equal protection analysis requires a simple equation: "when one proceeds to

cancel out the common characteristics of the two classes being compared

([e.g., ...J married men and married women), as one would do in solving an

algebraic equation, the cancelled out element proves to be that of married

status, and sex remains the only operative factor in the equation." LEX K.

LARSON, EMPLOYMENT DISCRIMINATION §40.04, at 40-12 (2nd ed. 1996). This

means that the protected class, in this case biological fathers, need not

include all men, but instead must demonstrate that they, biological fathers as

a subclass of men, were treated unfavorably as compared to a corresponding

subclass of women. See Coleman v. B-G Maintenance Management of

40

• Case 3:03-cv-10062-REL-RAW Document 39

• Filed 07/23/04 Page 41 of 55

Colorado. Inc., 108 F.3d 1199, 1204 (10th Cir. 1997) As discussed above, the

class corresponding to the biological father subclass are biological mothers.

Canceling out the additional characteristic, biological parenthood, common to

both leaves the clear evidence that "but for" Mr. Johnson's gender, he would

have received benefits under the policy. The policy is gender-based and

facially discriminatory.

Thus, the question before the court is whether the granting of paid

parental leave for the care of children to biological mothers while denying

paid parental leave for the care of children to biological fathers is a

differentiation that bears a relation to some important state interest. In

essence, as discussed above, the policy in practice reinforces and promotes the

age-old notion that a mother bears a closer relationship with her child than a

father by requiring fathers to stay on the job, and requiring mothers to be at

home, in order for a family to partake of the paid leave benefit. The policy

denies the use of paid leave in the form of accrued sick leave to biological

fathers who are parents with caretaking responsibilities, despite the explicit

definition ofthe beneficiaries of the leave policy as "parents with caretaking

responsibilities." No legitimate purpose exists for such a differentiation.

Furthermore, in the lives of real world families, the policy irrationality

is more than clear. A cursory look at the consequences of the application of

this policy to couples in non-traditional families bears this out. (See depo

transcripts) The policy would deny the biological parent in a male same sex

41

• Case 3:03-cv-10062-REL-RAW Document 39

• Filed 07/23/04 Page 42 of 55

relationship the benefit of any paid leave in the form of accrued sick leave,

but would grant the adoptive parent in that relationship five days ofleave. If

the women in a same-sex relationship were to have a child using a surrogate

to carry the child using the egg of one of the women and the sperm of a donor,

the woman with the biological connection to the child would potentially be

entitled to six weeks of parenting leave with none of that time used for any

temporary disability due to child birth.

VB Summary Judgment for Liability Against Each Named Defendant Should Be Entered Pursuant to 42 U.S.C. § 1983

Mr. Johnson has alleged that three individuals who are officers of the

University of Iowa, David Skorton, MD, Mr. Douglas K True and Ms. Susan

C. Buckley, are liable for the violation of guarantees of Equal Protection

secured by the Federal Constitution because, as individuals, they are

responsible for the promulgation, interpretation and enforcement ofthe

Parental Leave Policy that is the subject matter of this litigation.

An individual cannot be held liable for damages under § 1983

"merely because he held a high position of authority," but he can be held

liable if he was personally involved in the alleged deprivation. See Black

v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996). Personal involvement can be

shown by:

evidence that: (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant

42

• Case 3:03-cv-10062-REL-RAW Document 39

• Filed 07/23/04 Page 43 of 55

created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference ... by failing to act on information indicating that unconstitutional acts were occurring.

See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).
In determining whether an official is entitled to immunity despite such involvement, "courts undertake a two-pronged analysis. First, the court must see if a deprivation of constitutional magnitude has been alleged. If so, the court must determine if that right was so clearly established that a reasonable public official would have known his or her conduct violated the Constitution at the time of the act." Weiler v. Purkett, 137 F.3d 1047, 1050 (8th Cir. 1998).
Evidence of "deliberate indifference" may demonstrate that "the defendant intended the discrimination to occur." Gant ex reI. Gant v. Wallingford Bd. of Educ., 195 F.3d 134, 141 (2d Cir. 1999). "Deliberate indifference can be found when the defendant's response to known discrimination 'is clearly unreasonable in light of the known circumstances.'" Id. (quoting Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 648, 143 L. Ed. 2d 839, 119 S. Ct. 1661 (1999». While this standard is not "a mere reasonableness standard that transforms every ... decision into a jury question." Id. (internal quotation marks omitted), decisions to maintain an
43

• Case 3:03-cv-10062-REL-RAW Document 39

• Filed 07/23/04 Page 44 of 55

exclusionary policy with knowledge regarding the nature and effect of the

exclusionary policy arguably evidence such indifference.

In this instance, each of the named Defendants-David J. Skorton,

MD, Douglas K. True, and Susan C. Buckley-are appropriately named.

Each person has the administrative power, both in a general institutional

rule making sense, and in their ability to afford an individual such as Mr.

Johnson, the relief that Mr. Johnson seeks in this instance. Each named

Defendant is aware ofthe nature of Mr. Johnson's complaint. Each named

Defendant takes the position that biological fathers should be precluded from

use of accrued sick leave for Parental Leave under the University of Iowa's

Parental Leave Policy.

Defendant David J. Skorton, MD, is President of the University of

Iowa. As a part of his duties and responsibilities, Dr. Skorton approves rules

governing the University ofIowa, including the Parental Leave Policy.

(Exhibit 2, Deposition of David Skorton, MD, 6:2-16, 7:2-25, 8:1-7, App. 15)

is aware of the Parental Leave Policy and its facial exclusion of biological

fathers from their use of accrued paid sick leave to have time off to spend

with children newly added to families. He is aware of concerns expressed by

staff and faculty about the policy as to its inequitable treatment of biological

fathers. He has the administrative power to resolve cases involving the

application of University of Iowa rules in particular instances such as, for

example, the application of the Parental Leave Policy to individual biological

44

• Case 3:03-cv-10062-REL-RAW Document 39

• Filed 07/23/04 Page 45 of 55

fathers who are adversely affected by the University ofIowa's

implementation of the same. Dr. Skorton is not aware of any University of

Iowa study that justifies the exclusion of biological fathers from benefits

conferred to all other parents under the Parental Leave Policy. He has the

power to convene administrators for the purpose of reviewing and revising

the rule, but has not done so.

Defendant Douglas K. True is Vice President for Finance at the

University ofIowa. As a part of his duties, Mr. True is responsible for the

formulation and approval of policies governing the Human Resources

Department at the University of Iowa, including the Parental Leave Policy.

As Vice President for Finance, Mr. True has the power to resolve disputes

concerning the application of the Parental Leave Policy in particular cases.

(Exhibit 3, Deposition of Douglas K. True, 5:9·23, 12:24·25, 13:1·25, 14:1·14,

App. 32·34) Mr. True is aware of the Parental Leave Policy and its facial

exclusion of biological fathers from their use of accrued paid sick leave to

have time off to spend with children newly added to families. He is aware of

concerns expressed by staff and faculty about the policy as to its inequitable

treatment of biological fathers. Mr. True has the power to convene

administrators for the purpose of reviewing and revising the Parental Leave

Rule, but has not done so.

Defendant Susan C. Buckley is Associate Vice President for Finance

and Operations and Director of Human Resources at the University ofIowa.

45

• Case 3:03-cv-10062-REL-RAW Document 39

• Filed 07/23/04 Page 46 of 55

As a part of her duties, Ms. Buckley is responsible for formulation of and day-

to-day implementation of human resource policies at the University ofIowa,

including the Parental Leave Policy. In this capacity, Ms. Buckley has the

power to resolve disputes concerning the application of the Parental Leave

Policy in particular cases. (Exhibit 4, Deposition of Susan Buckley, 35:14-25,

36-49, App. 112) Ms. Buckley was aware of Mr. Johnson's complaint about

application of the Parental Leave Policy to his own circumstances in October,

2002, but has chosen not to provide remedies that are within her power to

offer.

E.PLAINTIFF DAVID A JOHNSON IS ENTITLED TO PARTIAL SUMMARY JUDGMENT UNDER THE IOWA CIVIL RIGHTS ACT, IOWA CODE CHAPTER 216

Iowa Courts, in considering a plaintiffs discrimination claims brought pursuant to federal law and comparable state-law claims, generally make no distinction between them. Inglis v. Buena Vista Univ., 235 F. Supp. 2d 1009. 119 (N.D. Iowa 2002). This perspective results form the Iowa Supreme Court's recognition that federal precedent is applicable to discrimination claims under the Iowa Civil Rights Act (ICRA) pursuant to Iowa Code Chapter 216. See Vivian v. Madison, 601 N.w.2d 872, 873 (Iowa 1999) ("The ICRA was modeled after Title VII of the United States Civil Rights Act."); cf. Fuller v. Iowa Dep't of Human Servs., 576 N.W.2d 324, 329 (Iowa 1998) (recognizing that the ICRA's prohibition on disability discrimination is the state-law "counterpart" to the ADA, and that, "in considering a disability

46

• Case 3:03-cv-10062-REL-RAW Document 39

• Filed 07/23/04 Page 47 of 55

discrimination claim brought under Iowa Code chapter 216, we look to the

ADA and cases interpreting its language. We also consider the underlying

federal regulations established by the Equal Employment Opportunity

Commission (hereinafter 'EEOC'), the agency responsible for enforcing the

ADA.") (internal citations omitted). Iowa courts, therefore, have traditionally

turned to federal law for guidance in evaluating the ICRA. King v. Iowa Civil

Rights Comm'n, 334 N.W.2d 598,601 (Iowa 1983).1

There are two methods a plaintiff may use to establish discrimination

in employment under the ICRA, Iowa Code Chapter 216 (1995). Ritz v.

Wapello County Bd. of Supervisors, 2002 Iowa App. LEXIS 867, *4-6 (la. App.

2002); Vaughan v. Must, Inc., 542 N.W.2d 533,538 (Iowa 1996). First,

"under the direct evidence or mixed-motive standard, a plaintiff must

produce 'direct evidence that an illegitimate criterion, such as gender, 'played

a motivating part in [the] employment decision.'" Id.; see also Cronquist v.

City of Minneapolis, 237 F.3d 920, 924 (8th Cir. 2002)(quoting Price

Waterhouse v. Hopkins, 490 U.s. 228, 258 (1989». "Direct evidence

demonstrates a specific link between the challenged employment action and

the alleged animus." Michaelson v Waitt Broadcasting, Inc.,187 F. Supp. 2d

LAt the same time, Federal law, however, is not controlling. Iowa courts look to the analytical framework adopted and used by the federal courts in assessing federal law and do not substitute the language of the federal statutes for the clear words ofthe ICRA. Hulme v. Barrett, 449 N.W.2d 629, 631 (Iowa 1989); accord Board of Supervisors of Buchanan County v. Iowa Civil Rights Comm'n, 584 N.W.2d 252, 256 (Iowa 1998)("In deciding gender discrimination disputes, we adhere to the Title VII analytical framework.")

47

• Case 3:03-cv-10062-REL-RAW Document 39

• Filed 07/23/04 Page 48 of 55

1059, 1068 (N.D. Iowa 2002) Once direct evidence has been presented, the

employer has the burden of establishing, by a preponderance of the evidence,

that it would have made the same decision even in the absence of an

improper motive. Boelman v. Manson State Bank, 522 N.W.2d 73, 78 (Iowa

1994). The holding of Price Waterhouse holding was modified by 42 U.S.C. §

2000e-5(g)(2), so that "once a plaintiff meets the initial burden regarding

direct evidence he or she is entitled to declaratory or injunctive relief and

attorney's fees." Roberts v. Swift & Co., 198 F. Supp. 2d 1049, 1060 (S.D.

Iowa 2002). Ritz 2002 Iowa App. LEXIS 867 at *5. "Evidence a defendant

would have made the same employment decision regardless of discriminatory

intent cannot defeat a claim altogether, it can only defeat certain remedies

such as damages or equitable relief." Ritz 2002 Iowa App. LEXIS 867 at

*5(citations omitted).

F. PLAINTIFF DAVID A. JOHNSON IS ENTITLED TO PARTIAL SUMMARY JUDGMENT UNDER THE EQUAL PROTECTION CLAUSE OF THE CONSTITUTION OF THE STATE OF IOWA

The Equal Protection Clause enshrined in the Iowa Constitution
states as follows:
All laws of a general nature shall have a uniform operation; the general assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens.
Iowa Const. Art. I, § 6.
48

• Case 3:03-cv-10062-REL-RAW Document 39

• Filed 07/23/04 Page 49 of 55

The Iowa Supreme Court recently explained the nature and scope
of equal protection analysis under the Iowa Constitution. Racing
Association of Central Iowa v. Fitzgerald, 675 N.W.2d 1 (Iowa 2004); see
also J.E.B. v. K.C. (In re S.A.J.B.). 679 N.W.2d 645, 647-651 (2004). In
Racing Association, the court independently applied federal principles in
its analysis of equal protection under the Iowa State Constitution, but
cautioned that
federal decisions are persuasive, but not binding, on this court in its consideration of claims based on the Iowa Constitution.... Independent application ... might result in a dissimilar outcome from that reached by the Supreme Court in considering the federal constitutional claim. This result is particularly possible in view of the "the ill-defined parameters of the equal protection clause."

Racing Association, 675 N.W.2d at 6 (quoting Miller v. Boone County Hosp., 394 N.W.2d 776, 781 (Iowa 1986».
The Iowa Supreme Court, thus, while guided by the analyses of federal courts, does not dependent upon the interpretation of federal courts to determine the scope of the Iowa Constitution. Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 1396, 59 L. Ed. 2d 660, 667 (1979) (United States Supreme Court may review state court decision "where the state constitutional holding depended upon the state court's view of the reach of [the federal constitution]").

49

• Case 3:03-cv-10062-REL-RAW Document 39

• Filed 07/23/04 Page 50 of 55

1. Differentiation Between Biological Fathers and Biological Mothers in their Parenting Responsibilities is Unlawful

The Equal Protection Clause of the Iowa Constitution requires that

similarly-situated persons be treated alike. In re Detention of Morrow, 616

N.W.2d at 548(2001); See City of Cleburne v. Cleburne Living Ctr., 473 U.S.

432, 439, 105 S. Ct. 3249, 3254, 87 L. Ed. 2d 313, 320 (1985); Hack v. Auger,

228 N.W.2d 42, 43 (Iowa 1975). Heightened scrutiny is required of a

classification impinging upon a fundamental right or discriminating on the

basis of a prohibited classification, such as gender status. Caban v.

Mohammed, 441 U,S. 380, 388 (1979) (quoting Craig v Boren, 429 U.s. 190,

197 (1976». Ultimately, the classification itself must be reasonable. Hack,

228 N.W.2d at 43.

11. Parental Rights as Fundamental Rights under the Iowa Constitution The Iowa Supreme Court has repeatedly held, consistent with federal
authority, that "parental rights are fundamental rights" under the Iowa Equal Protection Clause. J.E.B., 679 N.W.2d at 648-649; See, e,g" Santi v, Santi, 633 N.w.2d 312,317 (Iowa 2001) ("The parenting right is a fundamental liberty interest that is protected against unwarranted state intrusion." (emphasis in original, citation omitted.»; Callender v. Skiles, 591 N.w.2d 182, 190 (Iowa 1999); In re Bruce. 522 N.W.2d 67, 72 (Iowa 1994); Olds v. OIds. 356 N.W.2d 571,574 (Iowa 1984); Troxel v. Granville, 530 U.S. 57,65 (2000) (a parent's interest in custody of his or her child "is perhaps the

50

• Case 3:03-cv-10062-REL-RAW Document 39

• Filed 07/23/04 Page 51 of 55

oldest ofthe [recognized] fundamental liberty interests"); see also M.L.B. v.

S.L.J., 519 U.S. 102, 119 (1996)(reviewing the history of parental rights and

determining that even in cases which have resulting in divided opinions, the

United States Supreme Court "was unanimously of the view that 'the

interest of parents in their relationship with their children is sufficiently

fundamental to come within the finite class of liberty interests protected by

the Fourteenth Amendment" (quoting Santosky v. Kramer, 455 U.S. 745, 774

(1982)(Rehnquist, J., dissenting». 2

When the challenged state action implicates a fundamental right, "to withstand challenge under our state constitution, the infringement on

2 That Iowa law treats parental rights as fundamental and treats biological and adoptive parents on an equal basis is made even more clear upon a review of applicable provisions of the Code ofIowa that address these rights. For example, the Iowa Code mandates that all parents with a legal relationship to their children have equal rights, and that the State of Iowa is bound to enforce those rights. Iowa Code § 600A.2(14)(2003)(defining a parent-child relationship as "the relationship between a parent and a child recognized by the law as conferring certain rights and privileges and imposing certain duties. The term extends equally to every child and every parent, regardless ofthe marital status of the parents of the child.")(emphasis added). Accordingly, in every applicable context, the Code of Iowa does not differentiate between the rights of parents based upon gender, marital or sexual orientation status in termination of parental rights proceedings, dissolution and support proceedings, adoption proceedings, in estate administration proceedings, or in block grant funding for early educational intervention requiring the involvement of parents. Iowa Code § 600A.l(2003); Iowa Code § 600A.2 (3) & (13) (2003); Iowa Code § 598.41(2003); Iowa Code § 598.21(2003); Iowa Code § 232.111(2003); Iowa Code § 232.38 (2003); Iowa Code § 600.4 (2003); Iowa Code § 256D (2003). Plaintiff is unaware of any statutory provision in the Code of Iowa that intentionally differentiates between the rights of parents in the conferring of rights and privileges based upon gender. This list is illustrative, only, and is not intended to be exhaustive.
51

• Case 3:03-cv-10062-REL-RAW Document 39

• Filed 07/23/04 Page 52 of 55

parental liberty interests implicated by the statute must be 'narrowly

tailored to serve a compelling state interest.'" Santi. 633 N.W.2d at 318

(quoting State v. Klawonn. 609 N.W.2d 515, 519 (Iowa 2000»; see also In re

A.C., 415 N.w.2d 609,615-16 (Iowa 1987). "When this stringent review of

legislation, commonly known as "strict scrutiny," is applied, we will not

presume legislation constitutional." J.E.B., 679 N.W.2d at 649(quoting In re

Detention of Williams, 628 N.W.2d 447, 452 (Iowa 2001».

To determine whether a state scheme implicating a fundamental right

is consistent with principles of equal protection under the Iowa Constitution,

the policy, rule or regulation must be "narrowly tailored to serve a compelling

state interest." J.E.B, 679 N.W.2d at 649-650.

The J.E.B court concluded, in analyzing a challenge to the state's statutory scheme of denying counsel to indigent defendants facing involuntary termination under Iowa Code section 600A while granting counsel to indigent parents in Iowa Code Section 232 proceedings, "no narrowly tailored compelling state interest" existed to justify the differential treatment and determined that "the statutory framework thus fails to withstand strict scrutiny, and runs afoul of the Iowa Equal Protection Clause." J.E.B, 679 N.W.2d at 649-650.; see also Iowa Const. art. I, § 6; In re KA.S. v. T.D.K, 499 N.W.2d 558, 566 (N. Dakota 1993); ("denying an indigent parent court-appointed counsel in a [private termination proceeding] serves no compelling state interest and would deny that parent equality of

52

• Case 3:03-cv-10062-REL-RAW Document 39

• Filed 07/23/04 Page 53 of 55

the privilege of counsel which is granted, upon the same terms, to other

indigent parents"). The court rejected the state's asserted compelling interest

in conserving fiscal resources, finding that the exclusion of involuntary

indigent respondents was not narrowly tailored nor based upon any

legitimate articulated reason, and dismissing the suggestion that the state

was not an active participant in private adoptions. J.E.B, 679 N.W.2d at 649-

651.

Referring to In re K.A.S., involving a substantially similar statutory scheme and challenge to it, the J.E.B. favorably evaluated the conclusion of the North Dakota Supreme Court that,

....the legislative framework is unconstitutionally underinclusive, insofar as the legislature has withheld the privilege of counsel at public expense to parents facing involuntary 600A terminations." J.E.B. 649 N.W.2d at 651.( citing K.A.S., 499 N.W.2d at 566 ("excluding indigent parents in an adoption proceeding from the class of indigent parents entitled to counsel creates an impermissible, underinclusive legislative classification, because the classification does not include all who are similarly situated").

At the University ofIowa, employees who are biological fathers and who are subject to the terms and conditions ofthe Parental Leave Policy are treated by the State in a manner unlike all other comparable parents, at the University ofIowa and Iowa State University, all of whom enjoy the use of accrued paid sick leave for to allow the biological father to have time off to spend with their children who are newly added to their families. Ostensibly, the basis for impinging on this fundamental right of parenting is fiscal and

53

• Case 3:03-cv-10062-REL-RAW Document 39

• Filed 07/23/04 Page 54 of 55

budgetary. Even if that assertion were assumed to be true, however,

fundamental rights cannot be "trumped" and balanced away by those who

might have grander views as to how those resources-in this instance,

compensated sick leave hours that have already been earned by biological

fathers, while in the service of their employer-might be spent.

III. CONCLUSION

For all of the reasons stated herein, based on the undisputed material

facts and the requirements of both Federal and Iowa law, Plaintiff David A.

Johnson respectfully requests this Court to enter all appropriate Orders

granting to him summary judgment on the issue of liability, under each and

every claim advanced by him in this lawsuit.

Mr. Johnson prays for any and all other reliefto which he may be

entitled, under the circumstances including, but not limited to, an award of

costs and attorneys fees related to these matters.

54

• Case 3:03-cv-10062-REL-RAW Document 39

• Filed 07/23/04 Page 55 of 55

Respectfully submitted,

__'"'___:'''''''' E. Bloomington Street

Iowa City, Iowa 52245

PHONE: 319.337.7079

FAX:

319.337.7082

E-Mail: larewlaw@aol.com

Original Filed.

Copy to:

George A. Carroll, Esq. Assistant Attorney General Hoover Building, Second Floor Des Moines, Iowa 50319 PHONE: 515/281.8330 Fax: 515/281-7219 ATTORNEY FOR DEFENDANTS

Courtesy Copy to:

Mr. Mark F. Schantz, Esq. University of Iowa Office of the General Counsel 120 Jessup Hall Iowa City, Iowa 52242

Certificate of Service The undersigned, a member of the bar of this state, hereby certifies that a true copy of the foregoing instrument was served upon each of the attorneys of record of all parties to the above-entitled cause by enclosing the same in an envelope addressed to each such attorney at his or her respective address as disclosed by the pleadings of record herein, with postage fully paid, and by depositing said envelope in a
_;u~n~i~t~;~tie~s~p;o~s~t~~e~d"e"p,.o,s::i;;t::Ozr-y---i,n::-Io20w0a4C. ity, Iowa, on the

55

 
 David A. JOHNSON, on his own behalf and on behalf of..., 2005 WL 5628993...

2005 WL 5628993 (C.A.8) (Appellate Brief) United States Court of Appeals, Eighth Circuit.
David A. JOHNSON, on his own behalf and on behalf of all others similarly situated, Plaintiff-Appellant, v.
UNIVERSITY OF IOWA; State Board of Regents; David J. Skorton, in his official capacity; Douglas K. True, in his official capacity; Susan Buckley, in her official capacity, Defendants-Appellees.
No. 05-1184. 2005.
Appeal from the United States District Court for the Southern District of Iowa The Honorable Ronald E. Longstaff, Chief Judge

Brief of the Appellees

Thomas J. Miller, Attorney General of Iowa, Mark E. Schantz, General Counsel, 120 Jessup Hall, University of Iowa, Iowa City, Iowa 52242, 319-335-2841, George A. Carroll, Assistant Attorney General, Hoover Building, 2nd Floor, Des Moines, Iowa 50319, 515-281-8330, Attorneys for Appellees.

SUMMARY AND NOTICE REGARDING ORAL ARGUMENT
This appeal is from an Order entered by Chief Judge Longstaff granting Defendant/Appellees’ Motion for Summary Judgment. Plaintiff/Appellant had brought a facial challenge to the University of Iowa’s Parental Leave Policy, alleging (1) that it is gender discrimination to permit a biological mother to use six weeks of sick leave for pregnancy disability while not permitting a biological father five days of child care leave; and, (2) that providing five days of child care leave for adoptive parents without providing the same benefit to biological parents is a violation of equal protection.

Appellees believe that the issues in this case, properly stated, can be resolved by the Court without oral argument. Should the Court grant Appellant’s request for oral argument, Appellees request equal time.

TABLE OF CONTENTS

SUMMARY AND NOTICE REGARDING ORAL ARGUMENT .........................................................................

ii

TABLE OF CONTENTS ..........................................................................................................................................................

iii

TABLE OF AUTHORITIES ...................................................................................................................................................

v

STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION ...............................................

1

STATEMENT OF FACTS .......................................................................................................................................................

1

I. SUMMARY OF UNIVERSITY BENEFITS RELATED TO LEAVE ..............................................................

1

A. Paid Leave .................................................................................................................................................................................

2

B. Unpaid Leave ............................................................................................................................................................................

4

C. Health Insurance .....................................................................................................................................................................

5

II. SUMMARY OF UNIVERSITY BENEFITS RELATED TO PARENTING .................................................

6

1

David A. JOHNSON, on his own behalf and on behalf of..., 2005 WL 5628993...

III. ADDITIONAL LEGISLATIVE FACTS .....................................................................................................................

7

STANDARD OF REVIEW ......................................................................................................................................................

8

STATEMENT OF THE CASE ...............................................................................................................................................

8

STATEMENT OF ISSUES ......................................................................................................................................................

10

I. WHETHER A UNIVERSITY POLICY THAT PERMITS A NATURAL MOTHER TO USE SICK

10

LEAVE TO FINANCE A SIX-WEEK ABSENCE FROM WORK DUE TO THE MEDICAL

DISABILITY ASSOCIATED WITH PREGNANCY, BUT AUTHORIZES NO USE OF SICK

LEAVE FOR CAREGIVING BY NATURAL FATHERS, VIOLATES TITLE VII OF THE CIVIL

RIGHTS ACT OR IOWA CODE § 216.6(1) ....................................................................................................................

II. WHETHER A UNIVERSITY POLICY THAT PERMITS ADOPTIVE PARENTS TO USE SICK

11

LEAVE TO FINANCE A FIVE-DAY ABSENCE FROM WORK FOR CAREGIVING PURPOSES,

BUT DOES NOT AUTHORIZE THE USE OF SICK LEAVE TO FINANCE CAREGIVING BY

NATURAL PARENTS, VIOLATES THE EQUAL PROTECTION CLAUSES OF THE UNITED

STATES OR IOWA CONSTITUTIONS ...........................................................................................................................

SUMMARY OF ARGUMENT ..............................................................................................................................................

11

ARGUMENT .................................................................................................................................................................................

12

I. THE DISTRICT COURT CORRECTLY CONCLUDED THAT THE UNIVERSITY PARENTAL

12

LEAVE POLICY DOES NOT CLASSIFY ITS EMPLOYEES BY GENDER AND THEREFORE

DOES NOT VIOLATE TITLE VII OR THE IOWA CIVIL RIGHTS ACT ........................................................

A. The Language of the Policy ................................................................................................................................................

12

B. The Schafer Decision is Not to the Contrary ................................................................................................................

16

II. THE DISTRICT COURT CORRECTLY HELD THAT THE UNIVERSITY’S ADOPTIVE LEAVE POLICY DOES NOT DENY A NATURAL FATHER EQUAL PROTECTION OF THE LAW. 18

A. There is no Fundamental Right Involved in This Policy. ........................................................................................

19

B. The District Court Properly Concluded that the Adoptive Leave Provisions of Subsection b(1)(b) of

20

the Parental Leave Policy Satisfy the Rational Basis Test ...........................................................................................

C. The University Can Reasonably Believe That Adoptive Parents Have a Superior Equitable Claim to

22

Paid Leave. ......................................................................................................................................................................................

D. Equal Protection and the Iowa Supreme Court ..........................................................................................................

25

CONCLUSION .............................................................................................................................................................................

26

TABLE OF AUTHORITIES CASES Abraham v. Graphic Art Int’l Union, 660 F.2d 811 (D.C. Cir. 1981) ... .................. Bower v. Owens, 476 U.S. 340 (1986) ..................................................................................
2

10, 17 21

David A. JOHNSON, on his own behalf and on behalf of..., 2005 WL 5628993...
Carter v. St. Louis University, 167 F.3d 398 (8th Cir. 1999) ........................................ Coleman v. B-G Maintenance Management, 108 F.3d 1199 (10th Cir. 1997) ...... Derungs v. Wal-Mart Stores, Inc., 374 F.3d 428 (6th Cir. 2004) ................................ Harris v. McRae, 448 U.S. 297 (1980) .................................................................................. Idaho Department of Employment v. Smith, 434 U.S. 100 (1977) .............................. Jefferson v. Hackney, 406 U.S. 535 (1972) ......................................................................... Martinez v. NBC, Inc., 49 F.Supp.2d 305 (S.D.N.Y. 1998) .......................................... Parham v. Hughes, 441 U.S. 347 (1979) .............................................................................. Racing Association of Central Iowa v. Fitzgerald, 648 N.W.2d 555 (Iowa 2002) ................................................................................................................................................... Racing Association of Central Iowa v. Fitzgerald, 675 N.W.2d 1 (Iowa 2004) ... Schweiker v. Hogan, 457 U.S. 569 (1982) ........................................................................... Schafer v. Board of Public Education, 903 F.2d 243 (3rd Cir. 1990) ....................... U. S. Railroad Retirement Board v. Fritz, 449 U.S. 166 (1980) .................................. STATUTES AND MISCELLANEOUS Iowa Code Chapter 216 ............................................................................................................... EEOC Compliance Manual, ¶ 4818 ........................................................................................ Tribe, Laurence, American Constitutional Law (2d ed. 1988), p. 782 ... .................

8 16 16 11, 20 11, 21 21 11, 16 10, 15 25
25 21 16 11, 22
9, 10, 18 11, 14, 23
11, 19

STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION
The District Court had jurisdiction of this case pursuant to 28 U.S.C. §§ 1331 and 1441. The Circuit Court has jurisdiction of this appeal pursuant to 28 U.S.C. § 1291.
STATEMENT OF FACTS
I. SUMMARY OF UNIVERSITY BENEFITS RELATED TO LEAVE
The University of Iowa (“University”) is an institution of higher education with approximately 13,700 full-time employees (App. p. 50; Aff. D. True). The University provides a comprehensive benefits package for these employees, including health and dental insurance, paid leave for absences and retirement plans. Total employee benefits at the University cost $267 million, or 34.5% of its payroll. The national average benefit ratio is 28.1% of payroll. Vacation and sick leave costs at the University represent $67.1 million, or 8.68% of total payroll. The national average for these costs is 6.5% of payroll. The University spent $17.6 million in variable costs for sick leave use alone (App. p. 71; Interrogatory Response Jayne).
The leave issue in this case may be informed by a brief review of the broader context of University policy relating to absences. This discussion is drawn from Chapters III-22 and III-23 of the University Operations Manual (“UOM”) (App. pp.
3

David A. JOHNSON, on his own behalf and on behalf of..., 2005 WL 5628993...
231-44).
A. Paid Leave. UOM § III-22.2 makes clear that the University’s general expectation of its employees is to report to work regularly and on schedule, but goes on to recognize that there are absences which may be necessary or justifiable. For many years, the State of Iowa and the University of Iowa have had “sick leave” policies for their employees that assume some or all of the risk of being unavoidably absent from work and losing compensation for those absent days. Currently, sick leave credits accrue at the rate of 12 hours per month of service for full-time employees (App. p. 233). Originally, paid leave was available only for absences due to medically-related disabilities. At least since the 1970s, pregnancy has been considered a medically-related disability. Biological mothers are entitled to leave for any period of pregnancy-related temporary disability for which they have sufficient accrued sick leave. Based on current medical practice, a pregnancy leave of no more than six weeks would not require documentation of disability. Beyond six weeks, written medical evidence is required (App. pp. 233-34).
Over the years and in response to employee requests that they be permitted to apply sick leave credits to other situations, the University has allowed employees to use sick leave credits for other kinds of absence. Those additional justifications include (1) emergency leave, which permits an employee a maximum of five days per calendar year for the care and necessary attention of ill or injured members of the employee’s immediate family; (2) funeral leave, which permits an employee a maximum of three days for each occurrence of death in the employee’s immediate family; (3) service as a pallbearer, which permits a maximum of one day for each service at the funeral of a person not a member of the employee’s immediate family; and, (4) adoption, which permits a newly adoptive parent a maximum of five days’absence to be charged against sick leave (App. p. 234).
B. Unpaid Leave. University policy also permits employees to request unpaid leave to the extent that accrued sick leave is insufficient to cope with the medical condition or other qualifying event. The University has also adopted policies to implement the requirements of the Federal Family and Medical Leave Act of 1993 (“FMLA”). As relevant to this matter, the University will grant up to twelve weeks of unpaid leave during any twelve-month period for (1) the birth and first year care of a child; (2) the adoption or foster placement of a child in the employee’s home; (3) the care of a spouse, child or parent with a serious health condition; or, (4) the employee’s own serious health condition. These requirements are set forth in UOM § III-22.7. (App. pp. 238-41.)
The University also allows its non-organized staff (employees such as Plaintiff-Appellant Johnson) to accrue vacation so that they may be paid for time off. In his position, Mr. Johnson accrued 12 days of vacation per year. Subject to reasonable notice in scheduling vacation to meet work needs, employees may also use vacation credits to compensate for absences for any of the reasons for which they might use accrued sick leave.
Shortly before the adoption of the FMLA in 1993, the bargaining organization for the University’s Merit employees requested that covered employees who were adoptive parents be permitted to use five days of sick leave to deal with a variety of absences related to the adoption process. Additional benefits for biological parents were not sought by the bargaining organization and were not included in the collective bargaining agreement. In the general case, the University often will provide its faculty and its non-organized staff with additional benefits which have been negotiated by its organized employees. That occurred for adoptive leave shortly after its provision to organized employees (App. p. 72; Interrogatory Response Jayne).
C. Health Insurance. All non-organized employees are provided access to one of the University’s health insurance plans. All the plans compensate a female employee who is a biological mother, or a male employee whose spouse is a biological mother, for the greater portion of the medical expenses related to childbirth.
II. SUMMARY OF UNIVERSITY BENEFITS RELATED TO PARENTING
The following table describes diagrammatically the benefits for which biological mothers, biological fathers, adoptive mothers and adoptive fathers are eligible under University policy.
Table I
Eligibility for (1) Maternity Leave, (2) Parental Leave, (3) Vacation, (4) FMLA, Unpaid Leave and (5) Health Insurance for Childbirth
4

David A. JOHNSON, on his own behalf and on behalf of..., 2005 WL 5628993...
Biological Parents

Adoptive Parents

Maternity Leave

Y

Maternity Leave

N

E

O

S

Female

Parental Leave

N

Parental Leave

Y

O

E

S

Employees

Vacation

Y

Vacation

Y

E

E

S

S

FMLA

Y

FMLA

Y

E

E

S

S

Health Insurance

Y

Health Insurance

N

E

O

S

Maternity Leave

N

Maternity Leave

N

O

O

Male

Parental Leave

N

Parental Leave

Y

O

E

S

Employees

Vacation

Y

Vacation

Y

E

E

S

S

FMLA

Y

FMLA

Y

E

E

S

S

Health Insurance

Y

Health Insurance

N

E

O

S

III. ADDITIONAL LEGISLATIVE FACTS
Adopting a child involves a substantial commitment of time, from 27 to 41 hours for an in-state adoption. If the adoption is out-of-state, an additional one or two weeks may be required. Even more time can be involved for an international adoption. A majority of the adoptions at the University where leave has been requested have been international (App. pp. 92, 68; Interrogatory Response Barnes; Aff. J. Gorman).
The appropriations to the University’s base budget from the State of Iowa decreased from 2000 to 2004 by $74.9 million. Increases in benefit costs related to sick leave proposed in 2002 and 2003 were rejected in substantial part because of the
5

David A. JOHNSON, on his own behalf and on behalf of..., 2005 WL 5628993...
budget situation and the University’s need to reduce expenses (App. 49; Aff. D. True).
University records indicate that 248 male employees became biological parents between June 1, 2001, and April 14, 2004. The total cost of five days’leave for these employees would have been approximately $323,000, or an annual cost in excess of $112,000. By way of contrast in calendar years 2002 and 2003, 54 employees received adoptive leave, 26 males and 28 females (App. pp. 68, 72; Aff. J. Gorman; Interrogatory Response Jayne).
The University’s health insurance plan spends $2.2 million annually on natural birth costs, or approximately $6,700 per childbirth (App. p. 72; Interrogatory Response Jayne).
STANDARD OF REVIEW
This Court reviews orders granting summary judgment de novo. Carter v. St. Louis University, 167 F.3d 398, 400 (8th Cir. 1999). De novo review is also appropriate because this matter, by mutual certification, involved no issues of adjudicative fact. Appellant’s facial challenge only involved the interpretation of University policy and consideration of those legislative facts relevant to rational basis review, all questions of law for the Court.
STATEMENT OF THE CASE
After exhausting his administrative remedies, Plaintiff-Appellant David A. Johnson (“Johnson”) filed a Complaint in the United States District Court for the Southern District of Iowa against Defendants alleging that the University’s parental leave policy on its face violates Title VII of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.
On the same day, Johnson filed a Petition in Equity in the Iowa District Court for Johnson County attacking the facial validity of the University’s parental leave policy under Iowa Code Chapter 216 (the Iowa Civil Rights Act), and the Equal Protection Clause of the Iowa Constitution, Article I, § 6. The U. S. District Court later entered orders merging the federal claims with pendent state law claims and certifying a class of similarly-situated biological fathers.
Upon completion of discovery, the parties filed cross-motions for summary judgment on July 19, 2004, both parties certifying there were no disputed issues of material fact. After briefing, District Court Chief Judge Ronald L. Longstaff, on December 19, 2004, issued an Order (“Order”) granting Defendants’ Motion for Summary Judgment on all claims.
The District Court ruled that a policy which provides medical disability leave for natural mothers and no caregiver leave for natural fathers does not rest on an unlawful gender classification, in part because these two forms of leave are not comparable. The Court further ruled the University had a rational basis for providing child-care leave for adoptive parents but not for natural parents, and that accordingly, the policy did not deny Johnson equal protection of the law within the meaning of either the federal or state constitutions.
STATEMENT OF ISSUES
I. WHETHER A UNIVERSITY POLICY THAT PERMITS A NATURAL MOTHER TO USE SICK LEAVE TO FINANCE A SIX-WEEK ABSENCE FROM WORK DUE TO THE MEDICAL DISABILITY ASSOCIATED WITH PREGNANCY, BUT AUTHORIZES NO USE OF SICK LEAVE FOR CAREGIVING BY NATURAL FATHERS, VIOLATES TITLE VII OF THE CIVIL RIGHTS ACT OR IOWA CODE § 216.6(1).
Authorities:
Parham v. Hughes, 441 U.S. 347 (1979).
Abraham v. Graphic Art Int’l Union, 660 F.2d 811 (D.C. Cir. 1981).
Martinez v. NBC, Inc., 49 F.Supp.2d 305 (S.D.N.Y. 1998).
6

David A. JOHNSON, on his own behalf and on behalf of..., 2005 WL 5628993...
EEOC Compliance Manual, ¶ 4818. II. WHETHER A UNIVERSITY POLICY THAT PERMITS ADOPTIVE PARENTS TO USE SICK LEAVE TO FINANCE A FIVE-DAY ABSENCE FROM WORK FOR CAREGIVING PURPOSES, BUT DOES NOT AUTHORIZE THE USE OF SICK LEAVE TO FINANCE CAREGIVING BY NATURAL PARENTS, VIOLATES THE EQUAL PROTECTION CLAUSES OF THE UNITED STATES OR IOWA CONSTITUTIONS. Authorities: Harris v. McRae, 448 U.S. 297 (1980). U. S. Railroad Retirement Board v. Fritz, 449 U.S. 166 (U.S. Ind. 1980). Idaho Department of Employment v. Smith, 434 U.S. 100 (1977). L. Tribe, American Constitutional Law (2d ed. 1988).
SUMMARY OF ARGUMENT The University’s parental leave policy does not involve a gender classification and cannot, therefore, involve gender discrimination. The classifications involved in the policy are (1) between those employees who have disability associated with pregnancy and those who do not, and (2) between male and female adoptive parents and male and female biological parents. The undisputed fact that the demand on the time and finances of adoptive parents is significantly greater than those for biological parents provides a rational basis for permitting adoptive parents but not biological parents to utilize five days of accumulated sick leave to finance time off in connection with the acquisition of a child.
ARGUMENT
I. THE DISTRICT COURT CORRECTLY CONCLUDED THAT THE UNIVERSITY PARENTAL LEAVE POLICY DOES NOT CLASSIFY ITS EMPLOYEES BY GENDER AND THEREFORE DOES NOT VIOLATE
TITLE VII OR THE IOWA CIVIL RIGHTS ACT.
A. The Language of the Policy Appellant’s claim is a facial challenge to the lawfulness of the University’s parental leave policy (UOM § III-22.8). It may be helpful to set out the pertinent portions of this policy: 22.8 PARENTAL LEAVE POLICY (Amended 5/99; 8/00) a. Purpose. To permit parents who have care giving responsibilities to have time off to spend with a child newly added to the family and, to the extent permitted by state law, to be paid during such leave. To adapt an employee’s work schedule and/or duties to help reduce conflict with parental obligations.
b. Entitlement to Leave. (1) Twelve-Month Faculty, Professional, Scientific, and Non-Organized Merit System Staff. (a) Biological mothers are entitled to leave for any period of pregnancy-related temporary disability, to be charged against
7

David A. JOHNSON, on his own behalf and on behalf of..., 2005 WL 5628993...
accrued sick leave. Based on current medical practice, a leave of six weeks or less would not require the employee to provide disability documentation. If an employee’s accumulated sick leave is insufficient to cover the period of disability, the employee will, at the employee’s request, be granted a leave of absence to be charged to vacation time, compensatory time, or a leave of absence without pay. Any request for absence beyond the period of disability is considered as a leave of absence without pay or as vacation. (b) A newly adoptive parent, including a domestic partner, is entitled to one week (5 days) of paid adoption leave to be charged against accrued sick leave. Departments are encouraged to arrange for additional leave as necessary. Departments should work with prospective adoptive parents seeking to adopt through an adoption agency with specific requirements for parental leave, to the extent the adoption leave is not sufficient to undertake an adoption. Time not charged to accrued sick leave may be charged to accrued vacation or taken as leave without pay. [Emphasis added.]
App. pp. 62-63.
As the District Court noted, this policy consists of a general purpose clause and two distinct eligibility clauses (Order, p. 20). Each of those clauses contains what we lawyers call a “classification.” The classification in Subsection b(1)(a) is between those persons who suffer medical disability associated with pregnancy and those who do not. That this is the case is reflected in the language of University policy which permits the leave to last only as long as the disability is presumed or proven to exist. Returning to work full time ends the entitlement to disability benefits (App. pp. 396-97).
Relying on the general language in the purpose clause, Appellant attempts to avoid this conclusion by characterizing Subsection b(1)(a) disability leave as “child care” leave. While the District Court recognized that the natural mother will likely spend time caring for her new child while recovering from pregnancy-related disability (Order, p. 18, n. 5), child care is plainly not the basis for allowing the leave. On the face of the policy, it is clear that a natural mother can utilize sick leave only if and so long as she is presumed or found to be disabled, fully or partially (Order pp. 20-21).
The EEOC Compliance Manual, ¶ 4818, provides guidance on parental leave and is quite helpful in clarifying that disability leave needs to be distinguished from parental leave for purposes of compliance with Title VII. “Parental Leave” is defined as:
Leave to care for a child of any age, or to develop a healthy parent-child relationship, or to help a family adjust to the presence of a newborn or adopted child. It must be distinguished from pregnancy disability leave, which is a form of medical leave allowed to female employees who cannot work because of pregnancy or related medical conditions. [Emphasis added]
The Guidance goes on to state:
Title VII does not require that any particular fringe benefits be provided: it requires only equal treatment of employees, once the employer has decided to provide such benefits. Hishon v. King & Spalding, 467 U.S.69, 75, 34 EPD ¶34, 387 (1984); 29 C.F.R. § 1604.9. Thus, a policy denying parental leave to all employees or severely restricting such leave is not, in the absence of additional facts, disparate treatment and probably would not be deemed to be unlawful under Title VII. A policy of refusing all parental leave may fall especially harshly on adoptive parents of either sex.7 Nevertheless, it is difficult to perceive any Title VII implications. It is unlikely that denial of leave will be regarded as disadvantaging either male employees or female employees simply because a particular type of leave is desired more frequently by one class or the other.
The analysis developed above has long been reflected in the case law. For example, Parham v. Hughes, 441 U.S. 347 (1979), involved a statute which permitted only fathers of illegitimate children who had taken the steps necessary to legitimate the children to sue for their wrongful deaths. In upholding the statute against a claim of gender discrimination, the Court stated:
8

David A. JOHNSON, on his own behalf and on behalf of..., 2005 WL 5628993...
In cases where men and women are not similarly situated, however, and a statutory classification is realistically based upon the differences in their situations, this Court has upheld its validity.
441 U.S. at 355. More recently, in Martinez v. NBC, Inc., 49 F.Supp.2d 305 (S.D.N.Y. 1998), a female employee claimed gender discrimination because the employer allegedly was not accommodating breast-feeding adequately. Observing that men are physiologically incapable of pumping breast milk, the District Court said:
The drawing of a distinction among persons of one gender on the basis of criteria that are immaterial to the other is not the sort of behavior covered by Title VII.
49 F.Supp. at 309. See also Derungs v. Wal-Mart Stores, Inc., 374 F.3d 428 (6th Cir. 2004)1.
B. The Schafer Decision is Not to the Contrary. The Schafer case (Schafer v. Board of Public Education, 903 F.2d 243 (3rd Cir. 1990), holds that an employer may not provide females with child care leave on a different basis than it provides such leave to males. The EEOC and the University agree with that holding. But in Schafer, the employer provided a leave of one year for females and no leave for males for child care without any showing that pregnancy disability persists for one year. Here, the University offered expert testimony that its six-week presumption of disability is based on the current state of medical knowledge and the D.C. Circuit has taken judicial notice of that proposition as well. See Abraham v. Graphic Art Int’l Union, 660 F.2d 811, 819 at n. 64 (D.C. Cir. 1981). It is also apparent that the University leave provided in Subsection b(1)(b) for the child care needs of adoptive parents is provided equally to male and female adoptive parents (App. p. 16), and there is no basis in the policy language for Appellant’s accusation that the University is guilty of “gender stereotyping.” Neither natural fathers nor natural mothers are given paid leave for child care purposes.2 Once that is understood, gender drops from the picture and Title VII and Iowa Code Chapter 216 have no relevance to judicial review of the University’s policy.
II. THE DISTRICT COURT CORRECTLY HELD THAT THE UNIVERSITY’S ADOPTIVE LEAVE POLICY DOES NOT DENY A NATURAL FATHER EQUAL PROTECTION OF THE LAW.
Equal protection claims involving entitlement to benefits are generally analyzed under the “rational basis” test. Appellant devotes little effort to refuting the District Court’s conclusion that University policy is rationally related to a legitimate purpose. Most of the attention is devoted to a claim that “strict scrutiny” rather than the rational basis test should be applied because the classification in the adoptive leave policy allegedly affects a fundamental right.
A. There is no Fundamental Right Involved in This Policy. Appellant produces no constitutional authority even for the proposition that there is a constitutional right to unpaid leave to be absent from work to take care of one’s child. And there is no such authority. But a so-called right for time off to care for a child is not what is involved here; University policy clearly provides unpaid leave for natural and adoptive parents of both
9

David A. JOHNSON, on his own behalf and on behalf of..., 2005 WL 5628993...
genders. As the District Court correctly noted, Appellant’s real claim is for paid leave for child care purposes and there is no authority whatsoever for treating that claim as involving a fundamental right (Order, p. 28). In that regard, it should be noted that while Congress in enacting the FMLA made generous provisions for unpaid leave for a variety of family purposes, it quite plainly stopped well short of requiring employers to provide paid time off.
The District Court also correctly concluded that the authority cited by Appellant below is inapposite (Order, p. 28). See, e.g., Tribe, American Constitutional Law (2d ed. 1988), p. 782. Professor Tribe articulates the point made by the District Court by quoting Harris v. McRae, 448 U.S. 297, 318 (1980), in the following passage: Even when the Constitution forbids government to interfere with an individual’s choice between two alternatives--such as the choice between abortion and childbirth, or that between public and private education-it does not follow that government may not put its thumb on the scale by subsidizing one alternative but not the other. Were that not the case, the subsidy of public schooling would entail a constitutional duty to subsidize the private alternatives that, under Pierce v. Society of Sisters, the government must leave parents free to choose. “It cannot be that because government may not prohibit the use of contraceptives, or prevent parents from sending their child to a private school, government, therefore, has an affirmative obligation to ensure that all persons have the financial resources to obtain contraceptives or send their children to private schools.” Whatever one thinks of the validity of educational voucher plans, one surely cannot argue that the Constitution compels government to institute them.
Because there is no fundamental right involved here, it follows that Appellant is not entitled to strict-scrutiny review of the University parental leave policy.
B. The District Court Properly Concluded that the Adoptive Leave Provisions of Subsection b(1)(b) of the Parental Leave Policy Satisfy the Rational Basis Test.
As previously noted, Subsection b(1)(b) of UOM § 22.8 permits adoptive parents to use five days of sick leave credit for child care leave. Subsection b(1)(b) does not provide that leave to natural mothers or fathers. The classification involved in this section of the policy, then, is between natural and adoptive parents.
Appellant’s claim has been that once the University articulates a purpose underlying a benefit, it must provide that same benefit to any employee who could make effective use of it. Appellant has never provided any authority for that proposition and the United States Supreme Court has consistently rejected it, recognizing that the judiciary should generally defer to the legislative and executive branches in making the difficult line-drawing and financial judgments that inevitably occur in providing benefits to employees and citizens. See, e.g., Jefferson v. Hackney, 406 U.S. 535 (1972) (acceptable to provide lower AFDC benefits than benefits afforded the aged and infirm); Idaho Department of Employment v. Smith, 434 U.S. 100 (1977) (rational basis for distinguishing between day students and night-school students in awarding unemployment benefits); Schweiker v. Hogan, 457 U.S. 569 (1982) (accepting distinction between medically needy and categorically needy for purpose of medical benefits); Bower v. Owens, 476 U.S. 340 (1986) (accepting distinction between remarried widowed spouse and divorced widowed spouse in determining amount of Social Security benefits).
The rationale behind these rulings was well-articulated by the Supreme Court in U. S. Railroad Retirement Board v. Fritz, 449 U.S. 166, 179 (1980), where Fritz challenged provisions of the Railroad Retirement Act. The court stated: Where, as here, there are plausible reasons for Congress’ action, our inquiry is at an end. It is, of course, “constitutionally irrelevant whether these reasons in fact underlay the legislative decision,” Flemming v. Nestor, 363 U.S., at 612, because this Court has never insisted that a legislative body articulate its reasons for enacting a statute. This is particularly true where the legislature must necessarily engage in a process of line-drawing. The “task of classifying persons for...benefits...inevitably requires that some persons who have an almost equally strong claim to favored treatment be placed on different sides of the line.” Mathews v. Diaz, 426 U.S. 67, 83-84 (1976), and the fact the line might have been drawn differently at some point is a matter for legislative, rather than judicial, consideration.
These cases consistently recognize that other branches of government, in light of financial limitations, must be allowed the flexibility to address problems one step at a time, focusing on a subset of the problem viewed presently as most acute. That is precisely what occurred here.
10

David A. JOHNSON, on his own behalf and on behalf of..., 2005 WL 5628993...
C. The University Can Reasonably Believe That Adoptive Parents Have a Superior Equitable Claim to Paid Leave.
The University provided significant expert testimony concerning considerations of legislative fact underlying the University’s parental leave policy. As previously noted, the EEOC Compliance Manual, § 4818, agrees with this testimony. Appellant provided no expert testimony or other factual basis for questioning those propositions. As the District Court recognized (Order, pp. 30-31), the demands on the time and the finances of adoptive parents are significantly greater than those for natural parents. Put differently, without adoptive leave, adoptive parents would have significantly more time off without pay than is the case for natural parents. That differential is accentuated by the fact that the University provides other benefits that assist in deferring the costs of childbirth for natural parents, particularly health insurance and pregnancy disability leave. The following table provides a conceptual description of the relative treatment of the two classes of parents by University benefit policy.

Table 2

Eligibility for (1) Parental Leave, (2) Maternity Leave, and (3) Health Insurance for Childbirth

Biological Parents

Adoptive Parents

Parental Leave

1. NO

1. YES

Female

Maternity Leave

2. YES

2. NO

Employe es

Health Insurance

3. YES

3. NO

Parental Leave

1. NO

1. YES

Male

Maternity Leave

2. NO

2. NO

Employe es

Health Insurance

3. YES

3. NO

It is also important to note that this approach to child care benefits was brought to University administration by employee groups. In the first instance, that organized employees sought this benefit only for adoptive parents, despite the fact there are many more natural parents than adoptive parents in the bargaining unit, is profound testimony to the reality of the relative needs of the two groups. It was also certainly rational for the University to extend that approach to benefits to other similarly-situated employee groups and rational to take cost into account in determining whether either to increase the benefit for adoptive parents or add some form of child care benefit for natural parents.
D. Equal Protection and the Iowa Supreme Court.
Appellant claimed below that Fitzgerald II [Racing Association of Central Iowa v. Fitzgerald, 675 N.W.2d 1 (Iowa 2004)]
11

David A. JOHNSON, on his own behalf and on behalf of..., 2005 WL 5628993...
presented a change in approach by the Iowa Supreme Court to its application of the federal rational basis test. This may well be disputed3 but the District Court applied the supposedly more stringent Iowa test and concluded it was rational to recognize the equities of adoptive parents and that the policy was a rational means of meeting that objective. Appellant suggests nothing that would or could indicate that the District Court erred in this regard.

CONCLUSION
For the foregoing reasons, the Order of the District Court should be affirmed and the case remanded for entry of judgment for the Defendants-Appellees.

Footnotes

7

Natural parents would at least have the mother home with the new baby for the few weeks of the mother’s disability.

1

In this regard, the Court may also wish to review Coleman v. B-G Maintenance Management, 108 F.3d 1199 (10th Cir. 1997),

cited by Appellant. The holding of the case is that in a “gender plus” claim, plaintiffs can never be successful if there is no

corresponding subclass of the opposite gender. See Coleman at 1204.

2

Appellant continues to claim that his wife was allowed to use her pregnancy leave for parental leave. He claims that his wife was

working half-time at the time of childbirth, that she did not work at all for four weeks, and then returned to work quarter-time (half

of half-time) for weeks five and six. He says she was to receive a total of 10 hours’ sick leave for the last two weeks. That would

mean she was working quarter-time and getting quarter-time sick leave. Viewed as leave for partial disability, that practice would

be entirely consistent with the University’s interpretation of the policy applied on a pro rata basis. Please note that there is no

“gap” that might support an inference that the biological mother return to work full-time--indicating she was no longer medically

disabled--and then later was allowed to use additional days of sick leave for absence attributable only to child care. The University

does not allow the use of sick leave for parental leave (App. pp. 396-97). Ms. Embree’s case is not a counter example as the trial

court specifically held: “The critical difference between Appellant and Embree is that Embree was in the process of recovering

from pregnancy disability and Appellant was not.” (Order, p. 26.)

3

The Iowa Supreme Court ordinarily applies the federal rational basis test with the same deferential approach utilized by the federal

courts. It purported to do so in Fitzgerald I, 648 N.W.2d 555 (Iowa 2002). After the United States Supreme Court reversed the

Iowa Court’s application of the federal test, the Iowa Supreme Court, expressly eschewing the adoption of a separate test under the

Iowa Constitution, reversed the United States Supreme Court by engaging in an “independent application” of the federal test.

Whether such a course can be reconciled with the Supremacy Clause of the United States Constitution must be considered an open

question.

12

 
 Case 3:03-cv-10062-REL-RAW Document 23 Filed 11/19/03 Page 1 of 8

FILED 11/19/2003 2:53:03 PM, USDC, Southern District of Iowa

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA
DAVENPORT DIVISION

DAVID A. JOHNSON, on his own behalf )

and on behalf of all others similarly situated, )

)

Plaintiff,

)

)

vs.

)

)

UNIVERSITY OF IOWA, STATE

)

BOARD OF REGENTS, DAVID J.

)

SKORTON, M.D., in his official capacity, )

DOUGLAS K.TRUE, in his official

)

capacity, and SUSAN C. BUCKLEY,

)

in her official capacity,

)

)

Defendants.

)

CIVIL NO. 3-03-CV-10062 ORDER

THE COURT HAS BEFORE IT plaintiff's motion for class certification, filed June 16, 2003. Defendants resisted the motion on October 20, 2003 and plaintiffs filed a reply memorandum on October 24, 2003. The matter is fully submitted.

I. BACKGROUND The relevant facts were set forth in this Court's September 26, 2003 Order denying defendants'
motion to dismiss or stay, and will be repeated only as pertinent to the present motion. Briefly, named plaintiff David Johnson argues that the University of Iowa's ("the University") Parental Leave policy discriminates against biological fathers, by denying them the opportunity to use up to forty hours of accrued sick leave to care for their newborns, when such an opportunity is expressly granted to newly adoptive parents of either gender. Accordingly, plaintiff now seeks to certify the following class: "all

Case 3:03-cv-10062-REL-RAW Document 23 Filed 11/19/03 Page 2 of 8
persons who have been, who are, or who may in the future become biological fathers and who have been, who are, or who may in the future become subject to, as employees of the University of Iowa, the institution's Parental Leave Policy pursuant to Operations Manual Section 22.8."
II. APPLICABLE LAW AND DISCUSSION A. Law Governing Class Certification Rule 23(a) of the Federal Rules of Civil Procedure states as follows: (a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
FED. R. CIV. P. 23(a). The burden is on the plaintiff to satisfy each prerequisite of Rule 23(a). General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 161 (1982). Assuming all of the requirements of Rule 23(a) are met, plaintiffs seeking to proceed on behalf of a class must also satisfy one or more of the conditions set forth under Rule 23(b). FED. R. CIV. P. 23(b); see also Amchem Products, Inc. v. Windsor, 521 U.S. 591, 625 (1997) (citing Rule 23(b)). In the present case, plaintiffs seek to certify the Class under either Rule 23(b)(2) or (b)(3).1
1 To meet the conditions of Rule 23(b)(2), plaintiff must show "the party opposing the class has acted or refused to act on grounds generally applicable to the class . . . ." Rule 23(b)(3) requires a finding that "the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy." Fed. R. Civ. P. 23(b)(3).
2

Case 3:03-cv-10062-REL-RAW Document 23 Filed 11/19/03 Page 3 of 8
In evaluating a motion to certify a class this Court must accept as true all of the allegations set forth in the Complaint. See, e.g., Shelter Realty Corp. v. Allied Maintenance Corp., 574 F.2d 656, 661 n. 15 (2d Cir. 1978); Thompson v. American Tobacco Co., Inc., 189 F.R.D. 544, 549 (D. Minn. 1999). "Although the strength of a plaintiff's claim should not affect the certification decision, a district court 'certainly may look past the pleadings to determine whether the requirements of Rule 23 have been met.'" Thompson, 189 F.R.D. at 549 (quoting Castano v. American Tobacco Co., 84 F.3d 734, 740 (5th Cir. 1996)).
In their October 20, 2003 resistance, defendants urge the Court to delay its ruling on class certification pursuant to Federal Rule of Civil Procedure 23(c)(1) until a substantive motion to dismiss or for summary judgment.2 The Court notes, however, that no dispositive motion currently is pending, leaving the Court and plaintiff to speculate as to the substance of such a motion, let alone whether the motion would be successful. The Court therefore declines to grant defendants' request.
B. Requirements of Rule 23(a) 1. Numerosity
Rule 23(a)(1) requires that the "class be so numerous that joinder of all members is impracticable." FED. R. CIV. P. 23(a)(1). Several factors are relevant in analyzing "numerosity," such as the number of persons in the proposed class, the type of action at issue, the monetary value of the
2 Federal Rule of Civil Procedure 23(c)(1) provides: As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. An order under this subdivision may be conditional, and may be altered or amended before the decision on the merits. 3

Case 3:03-cv-10062-REL-RAW Document 23 Filed 11/19/03 Page 4 of 8
individual claims and the inconvenience of trying each case individually. Paxton v. Union Nat'l Bank, 688 F.2d 552, 559 (8th Cir. 1982).
The Eighth Circuit has not established any "rigid rules regarding the necessary size of classes." Emanuel v. Marsh, 828 F.2d 438, 444 (8th Cir. 1987), rev'd on other grounds, 487 U.S. 1229 (1988). Other courts, however, have found a class of at least forty members to presumptively satisfy the numerosity requirement. See, e.g., Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995); Ansari v. New York Univ., 179 F.R.D. 112, 114 (S.D.N.Y. 1998); Davis v. Northside Realty Associates, Inc., 95 F.R.D. 39, 43 (N.D. Ga. 1982).
In the present case, plaintiff has produced data collected by University personnel that estimates there are more than 200 current fathers who meet the class definition. See Exh. A to Plaintiff's Reply Brief (internal University memorandum indicating the number of "fathers who enrolled their child within one year of life on health insurance benefits" exceeded 200). This number is more than sufficient to justify class certification. See Paxton, 688 F.2d at 560-61 (court found 75 black employees out of 418 employee promotions satisfied numerosity test).3 There undoubtedly are many more men who may become biological fathers in the future who also would meet the definition. In addition, although not argued by plaintiff, there may be men who currently are biological fathers, but are not represented in defendant's initial estimate based on the fact they and/or their children are not covered by the health insurance plan offered by the University.
Because not all of these individuals presently are known to defendants, coupled with the fact
3 Because defendants have control of the necessary data, the Court is unpersuaded by defendants' bare assertion that the class size is not too large to render joinder impracticable.
4

Case 3:03-cv-10062-REL-RAW Document 23 Filed 11/19/03 Page 5 of 8
plaintiff seeks broad-based injunctive relief, the Court finds the numerosity requirement is satisfied. See, e.g., Paxton, 688 F.2d at 561 (certifying class of 75 individuals because joinder would be impractical and because none individually could obtain the broad declaratory and injunctive relief sought).
2. Commonality To establish "commonality," it is not necessary to demonstrate every question of law or fact is common to each member of the class. Paxton, 688 F.2d at 561. Rather, the issues linking the class members must be "substantially related" to resolution of the case. Id. The common "link" binding potential class members in this case is the fact the University allegedly has applied its Parental Leave Policy uniformly to deny the benefit at issue to its male employees who are biological parents. See Amended Complaint at ¶¶ 23-25 (alleging that University administrators confirmed benefits administrator's interpretation of Parental Leave Policy as denying biological fathers the ability to use sick leave to care for a new child). The fact slight factual variations may exist, such as whether a class member currently has children, will not defeat commonality. Paxton, 688 F.2d at 561 (finding commonality existed despite fact allegedly discriminatory practices affected class members in different ways).
3. Typicality To satisfy the requirement of typicality, the proponent of certification must show that the “claims or defenses of the representative parties are typical of the claims or defenses of the class.” FED. R. CIV. P. 23(a)(3). In general, typicality is established if the claims of all members arise from a single event or share the same legal theory. Paxton, 688 F.2d at 561-62. If the legal theories of the
5

Case 3:03-cv-10062-REL-RAW Document 23 Filed 11/19/03 Page 6 of 8
representative plaintiffs are the same or similar to those of the class, however, slight differences in fact will not defeat certification. See De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983); see also Alpern v. UtiliCorp United, Inc., 84 F.3d 1525, 1540 (8th Cir. 1996).
In the present case, the claims of Mr. Johnson and all proposed class members share the same constitutional and statutory theories. The fact discrepancies may exist in the amount of damages available, if any, does not prevent a finding that the typicality requirement has been met.
4. Adequacy of Representation "The focus of Rule 23(a)(4) is whether: (1) the class representatives have common interests with the members of the class, and (2) whether the class representatives will vigorously prosecute the interests of the class through qualified counsel." Paxton, 688 F.2d at 562-63. The common interest shared by Mr. Johnson and his putative class members is the desire to end the discrimination to which biological fathers employed by the University allegedly have been subjected as a result of defendants' maintenance and/or interpretation of the Parental Leave Policy. As to the second requirement, the Court is confident plaintiff's counsel is both willing and able to vigorously represent the interests of all potential class members. Adequacy of representation is established. C. Rule 23(b) Assuming a plaintiff is able to met all of the prerequisites set forth in Rule 23(a), he or she must also satisfy one or more of the conditions set forth under Rule 23(b). FED. R. CIV. P. 23(b); see also Amchem Products, Inc. v. Windsor, 521 U.S. 591, 625 (1997) (citing Rule 23(b)). In the present case, plaintiff contends certification is appropriate under either Rule 23(b)(2) or (b)(3).
6

Case 3:03-cv-10062-REL-RAW Document 23 Filed 11/19/03 Page 7 of 8
Certification may be established under Rule 23(b)(2) "if the prerequisites of subdivision (a) are satisfied, and in addition . . . (2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole . . . ." FED. R. CIV. P. 23(b)(2).
In the present case, the Court finds that defendants' actions in drafting, implementing and applying the challenged Parental Leave Policy constitute actions generally applicable to the class. Furthermore, contrary to defendant's argument, although plaintiff seeks monetary damages as well as injunctive relief, the amended complaint makes clear that injunctive relief predominates. Because the Court finds the requirements of Rule 23(b)(2) are satisfied, it need not address whether certification also is appropriate under Rule 23(b)(3).
IV. CONCLUSION For the reasons outlined above, IT IS ORDERED that this case is certified as a class action
under Federal Rule of Civil Procedure 23(b)(2). The class consists of the following: "all persons who have been, who are, or who may in the future become biological fathers and who have been, who are, or who may in the future become subject to, as employees of the University of Iowa, the institution's Parental Leave Policy pursuant to Operations Manual Section 22.8."
Within sixty (60) days from the date of this Order, the parties are directed to submit a proposed plan for notification of the pendency of the action to potential class members. The plan may be combined with the proposed Scheduling Order pursuant to Rule 16 of the Federal Rules of Civil Procedure. The Clerk of Court is directed to extend the Rule 16 dismissal deadline accordingly.
7

Case 3:03-cv-10062-REL-RAW Document 23 Filed 11/19/03 Page 8 of 8 IT IS ORDERED. Dated this 19th day of November, 2003.
8

 
 408 F.Supp.2d 728 (2004)
David A. JOHNSON, on his own behalf and on behalf of all others similarly situated, Plaintiff, v.
UNIVERSITY OF IOWA, State Board of Regents, David J. Skorton, M.D., in his official capacity, Douglas K. True, in his official capacity, and Susan C. Buckley, in her official
capacity, Defendants.
No. 3-03-CV-10062.
United States District Court, S.D. Iowa, Davenport Division.
December 16, 2004.
72390123 *729 *730 *731 *732 *733 James C Larew, Larew Law Office, Iowa City, for David A Johnson On his own behalf and on behalf of all others similarly situated, Plaintiff.
ORDER
LONGSTAFF, Chief Judge.
Plaintiff David Johnson brings this action asserting that defendant University of Iowa's parental leave policy violates Title VII of the Civil Rights Act of 1964 ("Title VII"), the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, the Iowa Civil Rights Act ("ICRA"), and the Equal Protection Clause of the Iowa Constitution. Specifically, Plaintiff asserts that the University's parental leave policy illegally discriminates against biological fathers because it fails to provide them parental leave paid out of accumulated sick leave, but provides biological mothers and adoptive parents that benefit.
The Court has before it (1) Defendants' motion for summary judgment; (2) Plaintiff's motion for partial summary judgment; (3) Defendants' motion to strike references to Jennie Embree; (4) Plaintiff's motion to strike for failure to properly deny or qualify responses; (5) Plaintiff's motion to strike responses and expert opinion of Dr. Jennifer Niebyl, M.D.; (6) Plaintiff's motion to strike a portion of the expert opinion of Dr. Kent Jayne[1]; (7) Plaintiff's motion to amend order certifying class; and (8) Plaintiff's motion for leave to file a surreply. Each of the motions are resisted by the opposing party, fully submitted, and ready for ruling. For the reasons outlined below, the Court denies Defendants' motion to strike, denies each of the three Plaintiff's motions to strike, grants Plaintiff's motion for leave to file a surreply, grants Defendants' motion for summary judgment, denies Plaintiff's motion for partial summary judgment, and denies Plaintiff's motion to amend the order certifying the class.
BACKGROUND
On June 1, 2000, plaintiff David Johnson began employment as a clerk IV in the Office of the Registrar of defendant University of Iowa ("the University"). The University maintains a parental leave policy for all non-union employees, including Plaintiff. The policy provides in relevant part:
22.8 PARENTAL LEAVE POLICY
a. Purpose. To permit parents who have care giving responsibilities to have time off to spend with a child newly added to the family and, to the extent permitted by state law, to be paid during such leave. To adapt an employee's work schedule and/or duties to help reduce conflict with parental obligations.
b. Entitlement to Leave.
734

*734 (1) Twelve-Month Faculty, Professional, Scientific, and Non-Organized Merit System Staff.
(a) Biological mothers are entitled to leave for any period of pregnancy-related temporary disability, to be charged against sick leave. Based on current medical practice, a leave of six weeks or less would not require the employee to provide disability documentation. If an employee's accumulated sick leave is insufficient to cover the period of disability, the employee will, at the employee's request, be granted a leave of absence without pay. Any request for absence beyond the period of disability is considered as a leave of absence without pay or as vacation.
(b) A newly adoptive parent, including a domestic partner, is entitled to one week (5 days) of paid adoption leave to be charged against accrued sick leave. Departments are encouraged to arrange for additional leave as necessary. Departments should work with prospective adoptive parents seeking to adopt through an adoption agency with specific requirements for parental leave, to the extent the adoption leave is not sufficient to undertake an adoption. Time not charged to accrued sick leave may be charged to accrued vacation or taken as leave without pay.
(Am.Compl. ¶ 20.)
Plaintiff and his wife, Jennie Embree, a half-time University employee, had a daughter on November 16, 2002. Prior to her birth, both parents sought parental leave. (Johnson Aff., Pl.'s App. at 6-7.) Plaintiff made repeated efforts to determine whether under the policy a biological father could charge the same five days of parental leave against accrued sick leave that adoptive parents could. (Johnson Aff., Pl.'s App. at 3-6.) University administrators, including defendant Susan Buckley, Director of Human Resources, Dave Martin, President of the Staff Council, and Jan Gorman, an employee of the Department of Human Resources, uniformly responded to Plaintiff's inquiries, each stating that biological fathers could not receive parental leave under the policy.[2] This is not to say that the University denies all caregiving leave to biological fathers. All employees are allowed to apply vacation time toward leave, or take unpaid leave of up to twelve weeks. Employees whose partner or spouse works for the University are allowed twelve weeks leave between them. Biological fathers are only prevented from applying accumulated sick leave to caregiving leave. Plaintiff took an unpaid leave of absence after the birth of his daughter.
Embree works at the University's College of Nursing as a half-time employee 0907 about twenty hours per week. Like Plaintiff, she is subject to the University's parental leave policy. Under the policy, Embree took four weeks of pregnancy disability leave paid out of accumulated sick leave. For the two weeks following this time off, she worked ten hours per week from home, about half of her normal work week. The parties dispute the characterization of the final two weeks of leave time. Defendants assert that during those two weeks Embree received partial disability leave. (Buckley Aff., Defs.' App. Vol. III at 3.) Plaintiff claims that Embree had recovered 735 from her pregnancy disability *735 after the four weeks of total leave, and therefore the half-time leave was unrelated to Embree's disability. (Johnson Aff., Pl.'s App. at 6-7.)
On June 17, 2003, Plaintiff filed the present class action in this Court, naming as defendants the University, the State Board of Regents, the President of the University, David J. Skorton, M.D., the University's Vice President for Finance and Operations, Douglas K. True, and the University's Director of Human Resources, Susan C. Buckley. Plaintiff amended his complaint on October 8, 2003. Plaintiff groups his federal claims and state claims Wider headings "A" and "B," respectively. Count I of the federal claims alleges Defendants' conduct constitutes sex discrimination in violation of Title VII of the Civil Rights Act of 1964, ("Title VII"), 42 U.S.C. § 2000e-2 (2003). Count II of the federal claims alleges Defendants' conduct violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Under the state claims heading, Count I alleges that the policy violates the Iowa Civil Rights Act ("ICRA"), Iowa Code § 216.6(1) (2003). Count II alleges that the policy violates the Equal Protection Clause of the Iowa Constitution. Iowa Constitution, Article I, § 6.
DISCUSSION
I. PRELIMINARY MOTIONS

Before the Court can analyze the merits of the cross motions for summary judgment, it must evaluate the numerous other motions filed by the parties, which are listed above. These motions challenge various components of the summary judgment motions. In addition to their motion for summary judgment, Defendants filed one motion on August 10, 2004, which seeks to strike all references to Plaintiff's wife, Jennie Embree. Plaintiff has five motions in addition to his motion for partial summary judgment. On August 17, 2004, Plaintiff filed two motions to strike evidence set forth by Defendants: one challenges expert testimony of Kent Jayne, and the other challenges expert testimony of Dr. Jennifer Niebyl. Also on August 17, Plaintiff filed a motion asking the Court to strike many of Defendants' individual responses to Plaintiff's asserted material facts. On September 7, 2004, Plaintiff filed a motion to amend the order certifying the class. Finally, Plaintiff filed a motion for leave to file a surreply on September 14, 2004.
A. Defendants' Motion to Strike References to Embree
Defendants challenge Plaintiff's references to his wife, Jennie Embree, in his motion for partial summary judgment. Defendants make this challenge on the basis that during discovery Plaintiff did not disclose Embree as a potential person with information. Rule 37 of the Federal Rules of Civil Procedure provides:
A party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1), or to amend a prior response to discovery as required by Rule 26(e)(2), is not, unless such failure is harmless, permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed.
Fed.R.Civ.P. 37(c)(1).
Federal Rule 26 requires disclosure of persons with information. Fed.R.Civ.P. 26(a)(1). It also requires that parties formulate and adhere to a discovery schedule. Fed.R.Civ.P. 26(f). Under Rule 37, the Court may not consider evidence disclosed after the deadline unless the failure to disclose was substantially justified or harmless. "Decisions on whether there is substantial justification for late-filed discovery materials or whether the 736 late filing *736 was harmless is within the Court's discretion." Trost v. Trek Bicycle Corp., 162 F.3d 1004, 1008 (8th Cir.1998).
The Seventh Circuit has devised a framework for determining whether a failure to disclose is justified:
"A district court need not make explicit findings concerning the existence of a substantial justification or the harmlessness of a failure to disclose." Woodworker's Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir.1999). However, we have indicated that the following factors should guide the district court's discretion: (1) the prejudice or surprise to the party against whom the evidence is offered; (2) the ability of the party to cure the prejudice; (3) the likelihood of disruption to the trial; and (4) the bad faith or willfulness involved in not disclosing the evidence at an earlier date.
David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir.2003).
The discovery deadline in this case was May 3, 2004, and the original dispositive motion deadline was June 1, 2004. On May 28, 2004, Defendants moved to extend the dispositive motion deadline to July 19, 2004. Plaintiff did not resist, and the Court granted the motion. By agreement, the parties were still conducting discovery during June, but the agreement covered only depositions. Nothing was done to change the deadline for other discovery.
Plaintiff's answers to Defendants' interrogatories, which listed Embree as a person with information pertaining to the suit and contained documentation of Embree's employment, were produced July 22, 2004. Taking into account that (1) Embree works for the University; (2) the trial is not set in the near future 0907 it is set for April 11, 2005; (3) the parties, by agreement, were conducting discovery past the deadline; and (4) the parties had moved the dispositive motions deadline to accommodate the other late discovery, Plaintiff's late filing does not prejudice Defendants' preparation for trial.[3] Therefore, the Court will deny this motion.
B. Plaintiff's Motion to File a Surreply

Plaintiff's motion for leave to file a surreply is related to Defendants' motion to strike. As referenced above, Plaintiff cited his wife's situation in a pleading or motion for the first time in his resistance to Defendants' motion for summary judgment. In their reply, therefore, Defendants submitted an affidavit from Susan Buckley, which 737 challenges Plaintiff's version of Embree's leave. (Buckley Aff., Defs.' App. Vol. III at 2-3.) As the University's *737 versity's Director of Human Resources, Buckley states in her affidavit that Embree's leave was for partial disability leave, not partial caregiving leave.
Affixed to Buckley's affidavit is an exhibit showing that, according to the University's computer records, Embree's leave was categorized and paid as a continuous leave of 5 weeks. (Buckley Aff., Ex. 1, Defs.' App. Vol. III at 4-7.) Plaintiff argues that when he deposed Buckley, she didn't mention knowledge of Embree's circumstances. Plaintiff's basis for moving for leave to file a surreply is that Defendants submitted Buckley's testimony and certain documents regarding Embree for the first time in their reply. This argument mirrors Defendants' justification for producing Buckley's affidavit in their reply, which is that Plaintiff failed to mention Embree until its resistance, so Defendants had to rebut that with Buckley's affidavit. Plaintiff argues that the Court cannot let Defendants introduce new legal arguments or supporting materials without giving Plaintiff the opportunity to respond.
With his surreply motion, Plaintiff submits an affidavit from Embree and accompanying documents showing a factual dispute as to the purpose, scope, authorization, and accounting of Embree's final two weeks of half-time leave. (Pl.'s Mot. to File Surreply, Ex. 41 at 3-5.) These documents suggest that Embree was paid for caregiving leave, not disability leave. In the interest of allowing each party to address the other party's arguments, the Court will grant the motion and allow Plaintiff's surreply materials.
C. Plaintiff's Motion to Strike Defendants' Responses to Plaintiff's Statement of Material Facts
Plaintiff's next motion alleges that Defendants did not respond to Plaintiff's statement of material facts in accordance with Local Rule 56.1. Regarding responses to an opposing party's statement of material facts, the rule states:
[a] response that is not admitted must be supported by references to those specific pages, paragraphs, or parts of the pleadings [etc.] . . . that support the resisting party's refusal to admit the statement, with citations to the appendix containing that part of the record. The failure to respond, with appropriate citations to the appendix, to an individual statement of material fact constitutes an admission of that fact.
LR 56.1. Defendants do not cite the appendix or supporting material in many of their responses. Accordingly, Plaintiff moved that the Court strike all of Defendants' improper denials and accept each of Plaintiff's corresponding statements as admitted.
Local Rule 56.1 requires attorneys to state the material facts for the Court when a motion for summary judgment is pending so the Court need not scour the record to see which items speak for themselves and which do not. See Northwest Bank and Trust Co. v. First Illinois Nat'l. Bank, 354 F.3d 721, 725 (8th Cir.2003) ("Local Rule 56.1 exists to prevent a district court from engaging in the proverbial search for a needle in the haystack.") It is within the discretion of the Court to accept as admitted by Defendants all of Plaintiff's statements of material fact, which Defendants improperly qualified or denied. Id.
In Barnes v. Northwest Iowa Health Center, 238 F.Supp.2d 1053, 1093 (N.D.Iowa 2002), the court held that one party's failure to comply with this rule[4] by failing to cite the record when denying or qualifying the opposing 738 party's statement of material facts, did not require the court to accept the challenged statements of fact *738 as true if the opposing party was not prejudiced by the failure. That court explained its decision this way:
The court agrees that Barnes did not strictly comply with the Local Rules in her resistance papers. And while Barnes's noncompliance regarding citation to the record resulted in significant effort on the part of the court in pinpointing factual references, Sioux Valley was not prejudiced by Barnes's noncompliance. Furthermore, the court understands the rules and would not interpret arguments to be facts. Thus, while legal arguments rather than facts are not appropriate in a Statement of

Disputed Facts under Local Rule 56.1, the court did not consider those arguments in its ruling. The court recognizes its authority to strike portions of Barnes's resistance papers but will exercise its discretion to deny Sioux Valley's motion because Barnes's noncompliance had no bearing on the disposition of Sioux Valley's motion for summary judgment.
Id. at 1093.
In many of the challenged responses, Defendants resist Plaintiff's characterization of evidence: "[t]he email speaks for itself'; "[t]he testimony speaks for itself": "[t]he policy speaks for itself." (Defs.' Resp. to Stmt. of Material Facts ¶¶ 13, 24, 28-29, 35.) Defendants framed their responses in this manner because Plaintiff essentially made arguments in his statement of material facts. Defendants do cite the record functionally, if not formally, by referencing the material which Plaintiff cites in his statement of material facts.
Plaintiff has not demonstrated that Defendants' failure to comply with Local Rule 56.1 has caused him prejudice. Like the plaintiff in Barnes, Defendants denied those statements in which Plaintiff made arguments or stated opinions about facts. Regarding all such denials, which include paragraphs 13, 24, 28-29, 32-33, 35-36, and 38 of Defendants' response to Plaintiff's statement of material facts, Plaintiff's motion to strike will be denied.
In addition to statements in which Plaintiff offered opinions or arguments, Defendants denied, without citation, Plaintiff's assertion that he learned he could not apply for sick leave under the policy. (Defs.' Resp. to Pl.'s Stmt. of Material Facts ¶ 53.) Plaintiff learned of the University's interpretation of the policy through correspondence with many parties. (Johnson Aff., Pl.'s App. at 2-6.) Plaintiff is not precluded from making his claims because he did not specifically request sick leave. Based on extensive research on his part, Plaintiff knew that were he to ask, the answer would be no. Requiring such a formality is unnecessary.
The remaining challenged responses deal with Embree. Defendants denied and objected to each of Plaintiff's assertions regarding Embree because Plaintiff did not list Embree as a person with information. The Court has already examined this issue and need not address it further. For the reasons stated above, the Court will deny Plaintiff's motion to strike Defendants' responses.
D. Plaintiff's Motion to Strike Testimony of Jennifer Niebyl, M.D.
Next, Plaintiff moves to strike testimony of Dr. Niebyl, an expert who offers opinions on behalf of Defendants. In the challenged testimony, Dr. Niebyl offers her opinion that women need at least six weeks of disability leave to recover from pregnancy. Plaintiff asserts that her testimony is inadmissible on multiple grounds.
The first of Plaintiff's arguments is that the content of Dr. Niebyl's opinion did not fall under the heading of 739 "offering an opinion on the nature of the leave policy," which was the topic that Defendants, in *739 their
interrogatories, stated Dr. Niebyl would address. (Defs.' App. at 40.) Contrary to Plaintiff's assertion, a medical doctor's opinion on whether six weeks is proper time for presumed pregnancy disability is an opinion on the nature of the leave policy. The Court cannot grant the motion on this basis.
Second, Plaintiff argues that Dr. Niebyl's opinion is irrelevant to the issue of whether the policy allows disability leave alone, or caregiving leave in addition to disability leave. Dr. Niebyl's opinion relates to medical needs of women after childbirth, which Plaintiff states are not disputed. If medical practice is that women need six weeks of disability leave after childbirth, this information is relevant to the amount of time off an employer should give employees.
Third, and without elaboration, Plaintiff argues that Dr. Niebyl's testimony is inadmissible because she didn't develop the leave policy. He further asserts that her testimony lacks a proper foundation, but again doesn't elaborate. Because Dr. Niebyl's opinion, does not deal with formulation of the policy, her lack of participation in formulation is immaterial. Furthermore, her position as head of the University Hospital's Department of Obstetrics and Gynecology is adequate foundation for her medical opinion on pregnancy disability.
For the foregoing reasons, Plaintiff's motion will be denied.
E. Plaintiff's Motion to Strike Testimony of Dr. Kent Jayne

Jayne offers testimony regarding the basis for the parental leave plan and the University's decision not to provide paid parental leave to biological fathers. Plaintiff argues that Jayne's opinion is inadmissible hearsay, lacks foundation, and is irrelevant. Presumably, Defendants offered Jayne's testimony anticipating the possibility that the Court would apply intermediate or strict scrutiny in its equal protection analysis. In light of the Court's decision to apply rational basis scrutiny in Part II, however, Jayne's testimony is unnecessary. For this reason, the Court finds no reason to address the merits of this motion. It will be denied as being moot.
II. CROSS MOTIONS FOR SUMMARY JUDGMENT
Summary judgment is properly granted when the record, viewed in the light most favorable to the nonmoving party, shows that there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c); Walsh v. United States, 31 F.3d 696, 698 (8th Cir.1994). The moving party must establish its right to judgment with such clarity there is no room for controversy. Jewson v. Mayo Clinic, 691 F.2d 405, 408 (8th Cir.1982). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue is "genuine" if the evidence is sufficient to persuade a reasonable jury to return a verdict for the nonmoving party. Id. at 248, 106 S.Ct. 2505. "As to materiality, the substantive law will identify which facts are material. . . . Factual disputes that are irrelevant or unnecessary will not be counted." Id.
At the summary judgment stage, the Court should not weigh the evidence, make credibility determinations, or attempt to determine the truth of the matter. Id. at 249, 106 S.Ct. 2505. Instead, the Court's function is to 740 determine whether a reasonable jury could return a verdict for the nonmoving party based on the evidence. *740 Id. at 248, 106 S.Ct. 2505. The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in the nonmovant's favor. Quick v. Donaldson Co., 90 F.3d 1372, 1377 (8th Cir.1996). "Because discrimination cases often turn on inferences rather than on direct evidence," the court is to be particularly deferential to the nonmovant. EEOC v. Woodbridge Corp., 263 F.3d 812, 814 (8th Cir.2001) (citing Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir.1994)). "Notwithstanding these considerations, summary judgment is proper when a plaintiff fails to establish a factual dispute on an essential element of her case." Id. See Griffith v. City of Des Moines, 387 F.3d 733, 735-36 (8th Cir.2004).
A. TITLE VII CLAIM
Plaintiff claims that the parental leave policy violates Title VII because it impermissibly distinguishes between biological fathers and all other parents, denying biological fathers the right to convert accumulated sick leave to paid parental leave. Plaintiff's amended complaint presents this litigation as a facial challenge to the parental leave policy, primarily based on the adoption leave issue. Plaintiff groups biological mothers and adoptive parents in one group and biological fathers in another. He fashions the claim a "sex-plus" claim. See Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 118-19 & nn. 7-9 (2d Cir.2004) (explaining "sex-plus" as meaning an employer cannot discriminate based on a characteristic tied to sex).
It is important for purposes of this decision to note that Plaintiff brings this suit as a class action. He asserts that the parental leave policy, on its face, systematically excludes biological fathers from using sick leave for caregiving leave. Nowhere in Plaintiff's amended complaint does he charge that the University applies its policy in a discriminatory manner. Every count in the amended complaint states that the policy is facially invalid; none asserts "as applied" invalidity.
Except for one instance, the same is true in Plaintiff's motion for partial summary judgment. When describing his claims specifically, Plaintiff does not assert an "as applied" charge. (Pl.'s Mot. for Partial Summ. J. ¶¶ 2-7.) He describes his claims generally, however, as based upon the University's "promulgation, implementation and enforcement of a parental leave policy that, on its face and as applied, intentionally excludes men who are biological fathers from benefits conferred upon all other similarly situated employees." (Id. ¶ 1 (emphasis added)). This general description of his claims is the one instance where Plaintiff makes reference to an "as applied" claim.
1. Applicable Law

Title VII provides that it is an unlawful employment practice for an employer "to limit, segregate or classify his employees . . . in any way which would deprive any individual of employment opportunities or otherwise adversely affect his status as an employee because of such individual's . . . sex. . . ." 42 U.S.C. § 2000e-2(a)(2) (2003). This language has been interpreted to encompass employer decisions regarding benefits. Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 682, 103 S.Ct. 2622, 77 L.Ed.2d 89 (1983). It has also been interpreted to apply to employment decisions that favor female employees and disfavor male employees. Id.

Under the Pregnancy Discrimination Act of 1978 ("PDA"), 92 Stat. 2076, the University is required to provide pregnancy disability leave to biological mothers on the same terms as it provides leave to other disabled employees. The PDA inserted this provision in the definition section of Title VII:

741

*741 The terms "because of sex" or "on the basis of sex" include, but are not limited to, because

of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by

pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-

related purposes, including receipt of benefits under fringe benefit programs, as other persons not

so affected but similar in their ability or inability to work, and nothing in § 2000e-2(h) of this title

shall be interpreted to permit otherwise.

42 U.S.C. § 2000e(k) (emphasis added). Therefore, if an employer provides disability leave to employees disabled to a similar extent as pregnancy, the employer must provide biological mothers the same disability leave. See Newport News, 462 U.S. at 683-84, 103 S.Ct. 2622.

In California Federal Savings and Loan Ass'n v. Guerra, 479 U.S. 272, 285, 107 S.Ct. 683, 93 L.Ed.2d 613 (1987), the Supreme Court held that a California statute requiring certain employers to provide pregnancy disability benefits did not violate Title VII. In reaching this holding, the Court determined that Title VII did not prohibit preferential treatment of pregnancy disability with respect to other disabilities. Id. Congress enacted the PDA to ensure that employers could not treat pregnancy worse than other disabilities, but did not mandate equal treatment. Id. Under Guerra, therefore, an employer may give preferential treatment to women on the basis of pregnancy disability, with respect to employees with other disabilities. The Court was careful to limit its holding to the disability surrounding pregnancy, not the fact of pregnancy itself. Id.

This Court must give great deference, however, to EEOC regulations issued in furtherance of Title VII. Holthaus v. Compton & Sons, Inc. 514 F.2d 651, 653 (8th Cir.1975) (citing Griggs v. Duke Power Co., 401 U.S. 424, 433-34, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971)). According to the EEOC:

Disabilities caused or contributed to by pregnancy, childbirth, or related medical conditions, for all job-related purposes, shall be treated the same as disabilities caused or contributed to by other medical conditions, under any health or disability insurance or sick leave plan available in connection with employment. Written or unwritten employment policies and practices involving matters such as the commencement and duration of leave . . . shall be applied to disability due to pregnancy . . . on the same terms and conditions as they are applied to other disabilities.

29 C.F.R. § 1604.10(b) (emphasis added). This EEOC guidance seems to conflict with the Supreme Court's statement that "Congress intended the PDA to be `a floor beneath which pregnancy disability benefits may not drop 0907 not a ceiling above which they may not rise.'" Guerra, 479 U.S. at 285, 107 S.Ct. 683 (quoting the Ninth Circuit's decision below, Cal. Federal Sav. and Loan v. Guerra, 758 F.2d 390, 395 (9th Cir.1985)).

The Third Circuit in Schafer v. Board of Public Education, 903 F.2d 243, 248 (3d Cir.1990), held that preference given women on the basis of pregnancy disability cannot be limitless. In Schafer, an employer's policy gave mothers up to one year of "maternity leave," with no requirement that the leave be related to pregnancy disability. Id. at 248. Fathers did not receive comparable leave. The Third Circuit held that, as a matter of law, this violated Title VII. Id. The Schafer court distinguished Guerra in that Guerra spoke to a policy which provided preferential 742 treatment regarding pregnancy disability leave, while Schafer addressed preferential *742 treatment of new mothers with regard to caregiving leave. Id.

According to EEOC interpretation, Title VII prohibits covered employers from providing any caregiving leave to mothers if the employer does not also provide commensurate leave to fathers. EEOC Compliance Manual, § 626.6. An employer may provide pregnancy disability leave to mothers without providing leave to fathers if mothers are entitled to the leave pursuant to their disability, not their sex. Id. Therefore, according to the EEOC, if an employer provides caregiving leave to mothers, it must offer equal caregiving leave to fathers.
These requirements, as evidenced by the facts of this case, are difficult for employers to implement and enforce because every mother is not disabled by pregnancy to the same extent. Additionally, caregiving in some measure is necessarily involved in a mother's disability-related maternity leave.[5] Following passage of the PDA, Title VII requires that if covered employers provide disability leave for other reasons, they must provide pregnancy disability leave on the same terms. If the University were to provide biological mothers caregiving leave not based on disability, and did not provide equal leave to fathers, that would violate Title VII.
2. Direct Evidence of Discriminatory Motivation
An employment discrimination plaintiff may prove discriminatory intent by either direct or circumstantial evidence. Griffith v. City of Des Moines, 387 F.3d 733, 735-36 (8th Cir.2004). The Court's analysis differs based on the strength of the proof the plaintiff offers. Id. If a plaintiff offers only circumstantial evidence that prohibited discrimination motivated an employment decision, the Court must apply the familiar three-step analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), to determine whether the plaintiff's case can survive a motion for summary judgment. Griffith, 387 F.3d at 735-36. If, however, the plaintiff offers relevant direct evidence that prohibited discrimination motivated the employment decision, the Court need not apply the McDonnell Douglas burden-shifting analysis because direct evidence is normally strong enough to survive summary judgment. Id.
Direct evidence of discriminatory motivation is evidence "showing a specific link between the alleged discriminatory animus and the challenged decision, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated" the employer's decision. Thomas v. First Nat'l Bank of Wynne, 111 F.3d 64, 66 (8th Cir.1997). Circumstantial evidence is not as strong as direct evidence; it requires an additional inferential step before a fact finder can conclude that unlawful discrimination was present. Griffith, 387 F.3d at 735-36.
743 *743 The question that must be answered first is whether the parental leave policy, on its face, gives mothers caregiving leave, pregnancy disability leave, or both. Plaintiff claims that the text of the policy is direct evidence that the University discriminates against biological fathers. Defendants assert, however, that there are two distinguishable clauses within the parental leave policy and that neither discriminates based on sex. The first clause, in § 22.8(b)(1)(a), which Defendants identify as the "maternity disability leave policy," provides disability leave to new biological mothers. "Biological mothers are entitled to leave for any period of pregnancy-related temporary disability, to be charged against sick leave. Based on current medical practice, a leave of six weeks or less would not require the employee to provide disability documentation." (Am. Compl. ¶ 20.) The second clause, in § 22.8(b)(1)(b), which Defendants coin the "adoption leave policy," provides adoption leave to adoptive parents. "A newly adoptive parent, including a domestic partner, is entitled to one week (5 days) of paid adoption leave to be charged against sick leave." Id.
Under §§ 22.8(b)(1)(a) and 22.8(b)(1)(b) of the policy, biological mothers do not receive the same amount or type of leave as adoptive parents. The policy characterizes the leave provided mothers as "pregnancy disability leave." The University allows any amount of this leave to be charged against accrued sick leave, but requires medical documentation for leave exceeding six weeks. The policy characterizes the leave provided adoptive parents as "adoption leave," and adoptive parents can only charge up to five days against accrued sick leave.
Adoptive parents are entitled to five days of leave, while biological mothers are entitled to six weeks leave without documentation and unlimited leave with documentation of extended pregnancy disability. By definition, neither adoptive parent has a disability resulting from pregnancy, while leave provided biological mothers is pursuant to pregnancy disability. On the face of the policy, adoptive leave is wholly caregiving leave, while pregnancy leave is disability leave.

Based on this cursory analysis, it is clear that adoptive parents must drop out of the equation for Title VII purposes. It does not make sense to compare biological fathers to the group "biological mothers and adoptive parents" because adoptive parents receive different leave than biological mothers, quantitatively and qualitatively. Biological fathers will be compared separately to biological mothers and separately to adoptive parents.
With respect to adoptive parents, biological fathers are not discriminated against based on sex. Both male and female adoptive parents receive five days of adoption leave, and thus, adoption leave is granted on the basis of adoptive parent status, not sex. Therefore, there is no Title VII violation as to the parental leave policy granting adoption leave.
The face of the policy giving biological mothers six weeks of pregnancy disability leave is not direct evidence of discriminatory motive. The purpose statement in the policy, § 22.8(a), suggests that all parents are entitled to parental leave: the stated purpose is "[t]o permit parents who have care giving responsibilities to have time off to spend with a child newly added to the family and, to the extent permitted by state law, to be paid during such leave." (Am.Compl. ¶ 20.) The purpose statement, however, does not provide the operative language of the policy. The operative language, as regards biological mothers, is in § 22.8(b)(1)(a). This language provides 744 pregnancy leave to biological *744 mothers, who also happen to have caregiving responsibilities.
The EEOC Compliance Manual, Notice N-915-058 to § 626, (1990), suggests that "the employer must justify any disparity in parental leave by proving that it is attributable to the woman's disability." According to Dr. Jennifer Niebyl, due to physiological changes that occur to a mother's body after a baby is delivered, it is current medical practice to give at least six weeks of time off after pregnancy. (Defs.' App. at 40.) This is sufficient justification to provide a six-week presumption of disability.
On its face, the University's parental leave policy does not violate Title VII.
3. Circumstantial Evidence of Discriminatory Motive
Because the policy is not discriminatory on its face, and thereby does not provide direct evidence of discrimination, Plaintiff's remaining proof is entirely circumstantial. Therefore, the Court's analysis will proceed according to the McDonnell Douglas framework. 411 U.S. at 802-05, 93 S.Ct. 1817. The burden-shifting framework of McDonnell Douglas involves three steps. The first step is to determine whether the plaintiff has set out a prima facie case of sex discrimination, which creates a legal presumption of unlawful discrimination and shifts the burden of production to the defendant. See Ryther v. KARE 11, 108 F.3d 832, 836 (8th Cir.1997). In the second step, the defendant must offer a legitimate, non-discriminatory explanation for the challenged action. Id.; See Rothmeier v. Inv. Advisers, Inc., 85 F.3d 1328, 1332 (8th Cir.1996). If the defendant meets step two, the presumption of unlawful discrimination drops out, and in the third step, the plaintiff must demonstrate the defendant's proffered reasons are a pretext for discrimination. Rothmeier, 85 F.3d at 1332. Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84, (2003), did not change the third step in summary judgment analysis. Griffith, 387 F.3d at 735-36.
To avoid summary judgment, the evidence in its entirety must "(1) create[] a fact issue as to whether the employer's proffered reasons are pretextual and (2) create[] a reasonable inference that [sex] was a determinative factor in the adverse employment decision." Id. at 1336-37. "The second part of this test sometimes may be satisfied without additional evidence where the overall strength of the prima facie case and the evidence of pretext `suffice to show intentional discrimination.'" Id. at 1337 (emphasis added); see also Ryther, 108 F.3d at 837-38 & n. 5. Evidence of pretext by itself, however, will not be enough to avoid summary judgment if it is inconsistent with a reasonable inference of unlawful discrimination. Ryther, 108 F.3d at 837; see also Rothmeier, 85 F.3d at 1337-38 (finding evidence of pretext which is inconsistent with discriminatory motive actually undercuts claim of discrimination). The focus must remain, however, on the ultimate question of law: "whether the evidence is sufficient to create a genuine issue of fact as to whether the employer intentionally discriminated against the plaintiff because of the plaintiff's [sex]." Rothmeier, 85 F.3d at 1337.
Plaintiff's circumstantial case consists of two main elements. First, Plaintiff asserts that his wife received caregiving leave paid out of accumulated sick leave, and the University failed to provide him such leave. Second, Plaintiff cites the purpose statement in the policy as evidence of discriminatory motive. Plaintiff asserts that this

evidence shows that the University's policy and intent is to give biological mothers caregiving leave to the exclusion of biological fathers.
745 *745 Plaintiff has alleged discriminatory treatment 0907 the first step of the McDonnell Douglas framework 0907 based on biological mothers receiving caregiving leave and biological fathers not receiving caregiving leave. The second step, Defendants' proffered legitimate reason, is that the cited leave is pregnancy disability leave, not caregiving leave. In the third step, pretext, Plaintiff cites both his wife's treatment during her pregnancy leave and the language of the policy's purpose statement.
The purpose statement of the parental leave policy says that policy was designed "[t]o permit parents who have care giving responsibilities to have time off to spend with a child newly added to the family. . . ." As indicated above, however, the purpose statement is not operative policy language. The statement of purpose also provides no basis to infer that the University applies its policy in a discriminatory manner. While poorly written, it does not evidence an intent to discriminate against biological fathers based on sex.
Because the purpose statement is not evidence of discrimination, the only evidence remaining regards Embree, whom Plaintiff must show was similarly situated. There is a dispute of fact as to whether Embree received partial disability leave or partial caregiving leave after returning to work part time. Plaintiff claims that his wife had four weeks of paid disability leave followed by two weeks of half-time caregiving leave, all paid out of accumulated sick leave. Even if Embree did receive caregiving leave, Plaintiff has not met his burden to show that he and Embree were similarly situated.
A plaintiff who relies on a showing that other employees were treated differently to show pretext has the burden of showing that those employees are similarly situated in all relevant respects. Britton v. City of Poplar Bluff, 244 F.3d 994, 997-98 (8th Cir.2001). This strong showing is required where the only evidence of pretext or discrimination is disparate treatment. Scott v. County of Ramsey, 180 F.3d 913 (8th Cir.1999). "To show that other employees were similarly situated, [a plaintiff is] required to point to individuals who `have dealt with the same supervisor, have been subject to the same standards, and engaged in the same conduct without any mitigating or distinguishing circumstances.'" Marquez v. Bridgestone/Firestone, Inc. 353 F.3d 1037, 1038 (8th Cir.2004) (quoting Clark v. Runyon, 218 F.3d 915, 918 (8th Cir.2000)). A part-time employee is not similarly situated to a full-time employee. Lowery v. Hazelwood School Dist., 244 F.3d 654, 660 (8th Cir. 2001).
Embree worked in the University's College of Nursing, and was a part-time employee. Plaintiff worked as a clerk in the University's Registrar's Office, and was a full-time employee. Embree requested leave from her supervisor, Mary Clark, and discussed details of her leave with Debra McFall-Wallerich, a benefits administrator in the College of Nursing. (Embree Aff., Pl.'s 3d Supp.App. at 284-86.) Plaintiff had no contact with these individuals regarding his leave. Embree is not similarly situated to Plaintiff. Even if the final two weeks of leave she received were caregiving leave, Plaintiff has not shown that a similarly situated part-time male employee in the Nursing College would not have received such leave. Or, in reverse, Plaintiff would have to show that administrators in the Registrar's Office granted caregiving leave to a full-time female employee.
Alternatively, Plaintiff's evidence regarding Embree does not support a finding that her leave was caregiving leave. In email correspondence with a supervisor regarding her post-delivery plans, Embree wrote: "I will then 746 take four weeks of *746 medical (sick) leave. . . . I would then like to move to part-time (50%) and ease back into things by working 10 hours/wk at home and taking 10 hours/wk of medical (sick) leave for two weeks. . . ." Embree states that she took her leave as requested, but that the University required that she get a doctor's release before beginning to work half-time from home. (Embree Aff., Pl.'s 3d Supp.App. at 286.) Considering that she only requested to come back half-time for the final two weeks of her leave, such a release would not show that Embree had no pregnancy disability.
A release to work half-time in her home, pursuant to what was, in her own words, partial "medical (sick) leave," is not a bona fide release to return to work. Embree did not "return to work" in the physical sense and only returned half-time. Moreover, evidence that University administrators were concerned with whether she was still disabled shows that the decisionmaking process was not focused on her sex, but on her disability resulting from pregnancy. The critical difference between Plaintiff and Embree is that Embree was in the process of recovering from pregnancy disability and Plaintiff was not. Thus, even if Embree and Plaintiff were similarly situated in

employment terms, the evidence regarding Embree's final two weeks of leave cannot overcome Defendants' proffered reason for providing biological mothers leave.
The dispute of fact with respect to Embree is therefore not a genuine issue of material fact because the evidence offered would not support a jury verdict in Plaintiff's favor. Also, in this class action situation, the treatment received by Plaintiff's wife is insufficient to establish that the University had a policy or practice of granting caregiving leave to biological mothers. The facts underlying Embree's parental leave and the purpose statement, even when considered together, do not constitute circumstantial evidence sufficient to withstand summary judgment.
4. Title VII Conclusion
For the reasons outlined above, the Court finds that Plaintiff has not established that the parental leave policy illegally discriminates against biological fathers facially, or that the University applies the policy in a prohibited manner with regard to biological fathers. The policy does not violate Title VII, either on its face, or in the University's application. Judgment will be entered for Defendants on Plaintiff's Title VII claim.
B. FEDERAL EQUAL PROTECTION CLAIM
Plaintiff's second claim 0907 Claim II of his federal claims 0907 is that the University violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by providing caregiving leave to adoptive parents and not biological fathers. Plaintiff again frames the analysis as biological fathers versus all adoptive parents and biological mothers. For the reasons stated above, biological fathers must be compared separately to biological mothers and adoptive parents, respectively.
Plaintiff asserts that child rearing is a fundamental right with which the University interfered, and the Court should apply strict scrutiny. With respect to biological mothers, Plaintiff claims that the Court should apply intermediate scrutiny because the policy discriminates based on sex. This Court has determined under the Title VII heading that the policy does not discriminate based on sex, either facially or in the University's application. Therefore, equal protection scrutiny of the pregnancy disability leave clause of the policy is unnecessary. With respect to 747 adoption leave, Plaintiff asserts that the University's *747 policy fails to meet rational basis scrutiny.
1. Parental Leave is Not a Fundamental Right
It is a violation of due process if a state actor infringes upon an individual's fundamental right. M.L.B. v. S.L.J., 519 U.S. 102, 103-104, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996). A court must satisfy strict scrutiny before terminating an individual's parental rights. Id. Plaintiff contends that the University violated his fundamental parental rights by refusing to grant his request for parental leave. This Court disagrees. There is no fundamental right to be paid for parental leave. Fundamental rights, for equal protection or due process purposes, are negative rights, not positive rights. This means the University cannot unduly interfere with Plaintiff's right to raise his children, but does not mean the University is required to give him leave to do so. The University's failure to provide paid parental leave is not undue interference with Plaintiff's right to raise his children in the manner he sees fit. Plaintiff's claim is not based on any statute or case law and this Court will not apply strict scrutiny.
2. Rational Basis Review
(A) Applicable Law
"Under rational basis review, challenged statutory classifications are accorded a strong presumption of validity, which is overcome only if the party challenging them negates `every conceivable basis which might support it.'" Indep. Charities of Am., Inc. v. Minnesota, 82 F.3d 791, 797 (8th Cir.1996) (quoting FCC v. Beach Communications, Inc., 508 U.S. 307, 315, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993)). Under federal equal protection analysis, the purpose relied upon in litigation need not have been the actual purpose of the policy when it was adopted. Evaluating a statute, the Supreme Court stated:
Where, as here, there are plausible reasons for Congress' action, our inquiry is at an end. It is, of course, "constitutionally irrelevant whether this reasoning in fact underlay the legislative decision," Flemming v. Nestor, 363 U.S. [603,] 612, [80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960)] because this

Court has never insisted that a legislative body articulate its reasons for enacting a statute. This is particularly true where the legislature must necessarily engage in a process of line-drawing. The "task of classifying persons for . . . benefits . . . inevitably requires that some persons who have an almost equally strong claim to favored treatment be placed on different sides of the line," Mathews v. Diaz, 426 U.S. 67, 83-84, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976), and the fact the line might have been drawn differently at some points is a matter for legislative, rather than judicial, consideration.
United States R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 179, 101 S.Ct. 453, 66 L.Ed.2d 368 (1980).
The Supreme Court has treated policies promulgated by administrative agencies as if they were those of the state for purposes of equal protection analysis. See New York City Transit Auth. v. Beazer, 440 U.S. 568, 592, 99 S.Ct. 1355, 59 L.Ed.2d 587 (1979). The Supreme Court has said "the Equal Protection Clause was aimed at all official actions, not just those of state legislatures." Columbus Bd. of Ed. v. Penick, 443 U.S. 449, 458 n. 5, 99 S.Ct. 2941, 61 L.Ed.2d 666 (1979). "A state university without question is a state actor." Nat'l Collegiate Athletic Ass'n v. Tarkanian, 488 U.S. 179, 192, 109 S.Ct. 454, 102 L.Ed.2d 469 (1988).
Fritz establishes that Congress need not articulate its reasons for enacting a statute. Id. By extension, a public 748 university *748 need not articulate its reasons for establishing a policy. Inclusion of a purpose statement in a
policy does not change the fact that the policy, like most legislative acts, is the product of multiple, discrete purposes acting in concert to reach a final result. The adoption leave clause and the pregnancy disability leave clauses of the University's parental leave policy came as the result of different rounds of collective bargaining. Of course, collective bargaining or not, a state university is subject to the requirements of the Equal Protection Clause because it is a state actor.
(B) Analysis
The purpose section of the parental leave policy states that its purpose is
[t]o permit parents who have care giving responsibilities to have time off to spend with a child newly added to the family and, to the extent permitted by state law, to be paid during such leave. To adapt an employee's work schedule and/or duties to help reduce conflict with parental obligations.
(Am.Compl. ¶ 20.) This purpose applies to both subsections in the policy. Defendants assert multiple justifications for providing adoptive leave to adoptive parents, and no commensurate leave to biological fathers. Essentially, Defendants argue that adoptive parents face expenses and pressures that biological parents do not, and the purpose of providing adoption leave is to alleviate these additional burdens.
The most significant difference adoptive parents face is that they often pay for the childbirth expenses of the biological mother from whom they are adopting. The University's health insurance plan covers childbirth expenses for employees and spouses of employees who give birth, but does not cover employees who are prospective adoptive parents and pay expenses for the birth mother. There are also more legal requirements for adoptive parents to satisfy than there are for biological parents. The University allows prospective adoptive parents to use their sick leave under the policy to satisfy pre-adoption administrative requirements (Gorman Aff., Defs.' App. at 21). Another significant difference is that adoptive parents often have less time to prepare for the arrival of a child because they do not know the timeframe when they might receive the child. At minimum, they get less notice than a pregnant mother.
Alleviating adoptive parents' unique burdens is a legitimate purpose. Providing five days of paid adoption leave is rationally related to this purpose. Under rational basis scrutiny, the means by which the state actor tries to reach the purpose set forth need not be mathematically precise. Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 813, 96 S.Ct. 2488, 49 L.Ed.2d 220 (1976).
Plaintiff focuses his argument on the purpose set out in the parental leave policy. The text of the policy says its purpose is to provide time off to parents with caregiving responsibilities. The Equal Protection Clause does not bind the University to this statement of purpose. Even if the analysis was limited to only the purpose asserted in

the policy, the University satisfies the low requirements of rational basis scrutiny. The University does provide parental leave to some parents with caregiving responsibility. Although not "mathematically precise," in that biological fathers do not receive parental leave, the leave is rationally related to the asserted purpose.[6]
749 *749 Plaintiff does not sufficiently discredit the legitimate purposes set forth by Defendants. Additionally, he fails to demonstrate the lack of a rational relationship between the operation of the policy to the purpose in the policy. Therefore, he has not met his burden of negating all possible legitimate purposes and showing no rational relationship. Judgment will be entered for Defendants on the federal equal protection claim.
C. IOWA CIVIL RIGHTS ACT CLAIM
In Plaintiff's first state claim, he asserts that Defendants' policy violates the Iowa Civil Rights Act ("ICRA") by discriminating based on sex. Iowa courts have used federal law for guidance in interpreting the ICRA. See Falczynski v. Amoco Oil Co., 533 N.W.2d 226, 230 n. 2 (Iowa 1995) (the analysis of discrimination claims under state and federal law is the same) (citing Hy-Vee Food Stores v. Civil Rights Comm'n, 453 N.W.2d 512, 516 (Iowa 1990)); Boelman v. Manson State Bank, 522 N.W.2d 73, 79 (Iowa 1994) ("Iowa Supreme Court has looked to federal cases interpreting Title VII for guidance in applying [Iowa Code Chapter 216]."); King v. Iowa Civil Rights Comm'n, 334 N.W.2d 598, 601 (Iowa 1983). Applying this Court's Title VII analysis to Plaintiff's ICRA claim, the Court concludes that the policy does not violate the ICRA. Judgment will be entered for Defendants on the ICRA claim.
D. IOWA EQUAL PROTECTION CLAIM
In his second state claim, Plaintiff claims the University's policy violates the Equal Protection Clause of the Iowa Constitution. Iowa Constitution, article I, § 6. As a general rule, the Iowa Supreme Court follows federal equal protection analysis when construing the Iowa Equal Protection Clause. In re Morrow, 616 N.W.2d 544, 547 (Iowa 2000). In February 2004, however, the Iowa Supreme Court decided Racing Ass'n of Cent. Iowa v. Fitzgerald, 675 N.W.2d 1 (Iowa 2004), cert. denied 541 U.S. 1086, 124 S.Ct. 2820, 159 L.Ed.2d 248 (2004) (hereinafter " Fitzgerald III"). After the United States Supreme Court reversed the Iowa Supreme Court's decision on federal equal protection grounds, Fitzgerald v. Racing Ass'n of Central Iowa, 539 U.S. 103, 123 S.Ct. 2156, 156 L.Ed.2d 97 (2003) (hereinafter "Fitzgerald II"), upon remand, the Iowa Supreme Court, this time relying upon Iowa equal protection standards, reinstated its original decision. Fitzgerald III, 675 N.W.2d at 15; See Racing Ass'n of Central Iowa v. Fitzgerald, 648 N.W.2d 555, 562 (initially finding an equal protection violation) (hereinafter "Fitzgerald I").
Fitzgerald III poses unresolved issues regarding Iowa equal protection litigation. In Fitzgerald I, the Iowa Supreme Court noted, "Iowa courts are to `apply the same analysis in considering the state equal protection claims as . . . in considering the federal equal protection claim.'" 648 N.W.2d at 558 (quoting In re Morrow, 616 N.W.2d 544, 547 (Iowa 2000)). The court applied the usual federal equal protection test. It found that the legislation at issue, a tax statute that taxed gambling establishments differently, violated both the federal Equal 750 Protection Clause and the Iowa Equal Protection Clause. Fitzgerald I, 648 N.W.2d at 562 (finding racetracks *750 and river boats similarly situated, and no rational basis for the differential tax at issue).
However, after the United States Supreme Court reversed on federal equal protection grounds, Fitzgerald II, 539 U.S. at 110, 123 S.Ct. 2156, the Iowa Supreme Court re-examined the statute under the state constitution's Equal Protection Clause. Fitzgerald III, 675 N.W.2d at 6. The court noted its exclusive right to change Iowa's equal protection analytical model so that it differed in some respect from federal analysis, but did not do so. Id. Instead, the court re-applied the same federal equal protection analytical model the Supreme Court used in Fitzgerald II. The Iowa court refuted the rational bases the Supreme Court found in its opinion, and determined once again that there was no rational basis for the tax statute. Id. at 6-9.
The Iowa Supreme Court cited Bierkamp v. Rogers, 293 N.W.2d 577 (Iowa 1980), as a previous example of the Iowa Equal Protection Clause having a broader scope than its federal counterpart. Fitzgerald III, 675 N.W.2d at 6-7. The Iowa court made it clear, however, that it still considered federal equal protection cases persuasive in Iowa equal protection analysis. Id. at 5-7. The Iowa court's test was a more searching application of the federal test, though couched in the same terms.

To determine the proper analysis of cases implicating the Iowa Equal Protection Clause, it is necessary to evaluate both Fitzgerald III, and Bierkamp. These are two cases where the Iowa Supreme Court departed from federal rational basis equal protection analysis. Iowa rational basis analysis is more searching than federal equal protection analysis in evaluating the relationship between the proposed purpose and the legislation as a means to achieve that purpose.
In Bierkamp, the court held that the Iowa guest statute violated the Iowa Equal Protection Clause. The first proposed purpose for the guest statute was that drivers would be more hospitable (i.e., the hypothetical driver would offer a ride to a hypothetical guest more often) if he or she would not be liable for the passengers' injuries. Bierkamp, 293 N.W.2d at 582. The court rejected this proposed purpose. Id. ("No matter how laudable the State's interest in promoting hospitality, it is irrational to reward generosity by allowing the host to abandon ordinary care and by denying to nonpaying guests the common law remedy for negligently inflicted injury.")
The second proposed purpose for the guest statute was that it was designed to prevent collusive lawsuits. The court rejected this purpose on the basis that the statute was grossly underinclusive and overinclusive in reaching such a goal. Id. at 584. The court reasoned first that those who wanted to collude could get around the statute by lying about passenger compensation, which amounted to underinclusion. Id. Second, the court identified that the statute denied relief to many more arguably deserving claimants, who would not collude, than it prevented collusive claimants, amounting to overinclusion. Id.
The central difference between Bierkamp and Fitzgerald III is that the Bierkamp decision came 51 years after the United States Supreme Court decision with which it was at odds on the rational basis issue. See Silver v. Silver, 280 U.S. 117, 50 S.Ct. 57, 74 L.Ed. 221 (1929) (finding a rational basis for guest statutes). The Iowa court made the point that "[w]hatever feature or features which may once have distinguished automobile guests from guests in other conveyances or other contexts no longer exist." Bierkamp, 293 N.W.2d at 585. Fitzgerald III, however, 751 followed the United States Supreme Court *751 ruling in the same action. Compare Fitzgerald III, 675 N.W.2d 1 (Iowa 2004); with Fitzgerald II, 539 U.S. 103, 123 S.Ct. 2156, 156 L.Ed.2d 97 (2003).
The Fitzgerald III decision is fairly new, and the Iowa Supreme Court has not had the opportunity to expound on any effect it may have had on Iowa equal protection analysis. Fitzgerald III only purported to change the depth of analysis under the Iowa Equal Protection Clause. Therefore, this Court, under Fitzgerald III and Bierkamp, needs only carry out a more searching analysis of the relationship between the University's asserted purpose and the means it used to reach that purpose. Every other aspect of Iowa equal protection analysis parallels federal analysis.
As this Court found, in its federal equal protection analysis above, the purposes Defendants set forth are legitimate, and the University's parental leave policy is rationally related to achieving those purposes. This is so even under the more searching analysis required by the Iowa Equal Protection Clause. For the reasons stated above, judgment will be entered for Defendants on Plaintiff's Iowa equal protection claim.
CONCLUSION
For the reasons outlined above, Defendants' motion to strike references to Jennie Embree is DENIED, Plaintiff's motion for leave to file a surreply is GRANTED, Plaintiff's motion to strike Defendants' responses is DENIED, Plaintiff's motion to strike testimony of Dr. Jennifer Niebyl is DENIED, Plaintiff's motion to strike testimony of Dr. Kent Jayne is DENIED, Plaintiff's motion for partial summary judgment is DENIED, and Defendants' motion for summary judgment is GRANTED. Plaintiff's motion to amend order certifying class, filed September 7, 2004, is now moot and is DENIED.
Judgment shall be entered on behalf of Defendants on all of Plaintiff's claims.
IT IS ORDERED.

[1] Plaintiff's motion refers to Kent Jayne as "Dr. Kent Jayne," but there is no indication in Jayne's curriculum vitae or in Defendants' materials that he is a doctor. (Defs.' App. at 27.) Therefore, for purposes other than referring to Plaintiff's motion, the Court will not refer to him as a doctor.
[2] The Court notes that Plaintiff did not formally request to have the leave he sought paid for out of accumulated sick leave because he made enough attempts to have the policy interpreted in his favor or to change the policy that he knew the University would deny his request.
[3] Plaintiff cites Defendants' failure to file a supporting brief with their motion. Local Rule 7.1(d) requires that the "moving party must serve and file a brief containing a statement of the grounds for the motion and citations to the authorities upon which the moving party relies." There are four exceptions, none of which apply here. Further, Local Rule 7.1(b) requires that all motions "include citations to all statutes or rules under which the motion is being made." In their motion, Defendants did not cite any rule or case supporting their motion to strike. The Court notes that Defendants failed to comply with these Local Rules in a number of other instances. Compliance with the Local Rules is not merely a technical matter. Rather, compliance with the Local Rules substantially facilitates the Court's use of materials in addressing a motion for summary judgment. Defendants' counsel is encouraged in the future to heed the warning of Local Rule 1.1(f), which provides that failure to comply with the Local Rules may result in "the exclusion of evidence, the prevention of witnesses from testifying, the striking of pleadings or other papers, the denial of oral argument, and the imposition of attorney fees and costs." LR 1.1(f). The Attorney General's office should consider itself cautioned regarding future transgressions.
[4] The same Local Rules apply in both the Northern and Southern Districts of Iowa.
[5] Caregiving leave is unavoidably intermingled with pregnancy disability leave. If a mother gives birth and has a pregnancy-related disability, barring unusual circumstances, there will be a newborn baby at home. Newborn babies require much care, and while mothers are home due to pregnancy disability, they are able to provide care. If the Court were to decide, for example, that any amount of undocumented pregnancy disability leave given to new mothers and not new fathers violates Title VII because there is some caregiving intermingled, it would create an undue burden on employers wishing to provide pregnancy disability leave. If mothers were required to prove their length of disability, employers would have a new, court-imposed duty to ensure they are not providing any caregiving leave. The imposition of such a burden is properly left to Congress or another legislative entity.
[6] The statement of purpose and the policy as a whole do, however, treat biological fathers unfairly. As previously mentioned, overall, the parental leave policy is poorly crafted and poorly conceived. An equal protection suit is not the proper means, however, by which to address unfair or even bad policies. The proper course is through the administrative process by which the University makes employment policy. Defendant State Board of Regents or the Iowa legislature are also entities that can address such concerns. This Court acting under the Fourteenth Amendment cannot overturn even a bad policy if it is rationally related to a legitimate purpose. The Constitution leaves this to legislative entities.
Save trees - read court opinions online on Google Scholar.

 
 Case: 3:03-cv-10062 As of: 11/25/2010 09:42 AM CST 1 of 6
TERMED
U.S. District Court United States District Court for the Southern District of Iowa (Davenport)
CIVIL DOCKET FOR CASE #: 3:03−cv−10062−REL−RAW

Johnson v. University of Iowa, et al Assigned to: Senior Judge Ronald E. Longstaff Referred to: Magistrate Judge Ross A. Walters Demand: $0 Case in other court: 8th CCA, 05−01184 Cause: 42:2000e Job Discrimination (Employment)
Plaintiff

Date Filed: 06/17/2003 Date Terminated: 12/17/2004 Jury Demand: None Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

David A Johnson On his own behalf and on behalf of all others similarly situated

represented by James C Larew Larew Law Office 504 East Bloomington Street Iowa City, IA 52245 319 337 7079 Fax: 337 7082 Email: larewlaw@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant University of Iowa
Defendant sued as State Board of Regents
Defendant MD David J Skorton
Defendant Douglas K True
Defendant Susan Buckley

represented by George A Carroll IOWA ATTORNEY GENERAL −− Des Moines 1305 E WALNUT STREET DES MOINES, IA 50319 515 281 8583 Fax: 515 281 7219 Email: george.carroll@iowa.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by George A Carroll (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by George A Carroll (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by George A Carroll (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by George A Carroll (See above for address) LEAD ATTORNEY

Case: 3:03-cv-10062 As of: 11/25/2010 09:42 AM CST 2 of 6 ATTORNEY TO BE NOTICED

Date Filed 06/17/2003 06/17/2003 06/17/2003 06/23/2003 06/23/2003 06/23/2003 06/23/2003 07/07/2003 07/08/2003
07/08/2003
07/16/2003
07/16/2003 09/26/2003
10/06/2003 10/08/2003 10/09/2003 10/09/2003
10/15/2003
10/20/2003

# Docket Text
1 COMPLAINT (Summons issued); Rule 16 Dismissal Notice set for 10/15/03; Dismissal ddl (service) set for 10/15/03 (rmj) (Entered: 06/17/2003)
FILING FEE PAID: on 6/17/03 in the amount of $150, receipt #64425. (rmj) (Entered: 06/17/2003)
2 MOTION by plaintiff David A Johnson to certify class action before Judge Ronald E. Longstaff (rmj) (Entered: 06/17/2003)
3 RETURN OF SERVICE of summons and complaint, executed upon defendant University of Iowa on 6/19/03 (bp) (Entered: 06/23/2003)
4 RETURN OF SERVICE of summons and complaint, executed upon defendant Susan Buckley on 6/18/03 (bp) (Entered: 06/23/2003)
5 RETURN OF SERVICE of summons and complaint, executed upon defendant David J Skorton on 6/18/03 (bp) (Entered: 06/23/2003)
6 RETURN OF SERVICE of summons and complaint, executed upon defendant Douglas K True on 6/18/03 (bp) (Entered: 06/23/2003)
7 RETURN OF SERVICE of summons and complaint, executed upon defendant IA St Bd of Regents on 6/23/03 (bp) (Entered: 07/07/2003)
8 MOTION by defendant to dismiss before Judge Ronald E. Longstaff , or to stay federal action and request to consider matters outside the pleadings before Judge Ronald E. Longstaff (bp) (Entered: 07/08/2003)
9 MEMORANDUM by defendant in support [8−1] of motion to dismiss before Judge Ronald E. Longstaff, [8−2] of motion to stay federal action and request to consider matters outside the pleadings before Judge Ronald E. Longstaff (bp) (Entered: 07/08/2003)
10 RESISTANCE by plaintiff David A Johnson to motion to dismiss [8−1], and motion to stay federal action and request to consider matters outside the pleadings before Judge Ronald E. Longstaff [8−2] (rmj) (Entered: 07/16/2003)
11 MEMORANDUM by plaintiff in support [10−1] of his resistance to dfts' motion to dismiss or stay federal action (rmj) (Entered: 07/16/2003)
12 ORDER by Judge Ronald E. Longstaff denying motion to dismiss [8−1], denying motion to stay federal action; The Court would entertain a motion to amend the present Complaint [8−2], re [2−1] motion to certify class action; Dfts are directed to respond to motion for class certification within 20 days of this order ; Responsive brief ddl 10/20/03 (cc: all counsel) (rmj) (Entered: 09/26/2003)
13 ANSWER by defendants complaint [1−1] (rmj) (Entered: 10/06/2003)
14 MOTION by plaintiff to amend Complaint before Magistrate Judge Ross A. Walters (rmj) (Entered: 10/08/2003)
15 ORDER by Magistrate Judge Ross A. Walters granting motion to amend Complaint [14−1] (cc: all counsel) (rmj) (Entered: 10/09/2003)
16 AMENDED COMPLAINT [1−1] by plaintiff; Complaint includes new Counts I and II under B and statement of statutory basis for jurisdiction (rmj) (Entered: 10/09/2003)
17 ANSWER by defendant University of Iowa, defendant IA St Bd of Regents, defendant David J Skorton, defendant Douglas K True, defendant Susan Buckley complaint [16−1] (bp) (Entered: 10/15/2003)
18 RESISTANCE by defendants to motion to certify class action before Judge Ronald E. Longstaff [2−1] (rmj) (Entered: 10/20/2003)

Case: 3:03-cv-10062 As of: 11/25/2010 09:42 AM CST 3 of 6

10/23/2003 10/23/2003 10/24/2003 10/24/2003 11/12/2003 11/19/2003
12/05/2003
12/09/2003 01/15/2004
02/17/2004 02/17/2004 05/28/2004 06/01/2004 07/21/2004 07/21/2004 07/21/2004 07/21/2004 07/21/2004

REPLY by plaintiff re [2−1] motion to certify class action before Judge Ronald E. Longstaff (rmj) (Entered: 10/23/2003)
19 MOTION by plaintiff to exceed page limitation in his Reply to resistance to class certification motion before Magistrate Judge Ross A. Walters (rmj) (Entered: 10/23/2003)
20 ORDER by Magistrate Judge Ross A. Walters granting motion to exceed page limitation in his Reply to resistance to class certification motion [19−1] (cc: all counsel) (bp) (Entered: 10/24/2003)
21 REPLY by plaintiff David A Johnson re [18−1] motion response (bp) (Entered: 10/24/2003)
22 ORDER GIVING NOTICE OF DISMISSAL pursuant to Rule 16; Dismissal ddl (Rule 16) extended to 11/26/03 by JRR, Clerk (cc: all counsel) (rmj) (Entered: 11/12/2003)
23 ORDER by Judge Ronald E. Longstaff granting motion to certify class action [2−1]; Parties are directed to submit proposed plan for notification to potential class members within 60 days; Dismissal ddl (Rule 16) 1/20/04; Brief ddl 1/20/04 all counsel) (rmj) (Entered: 11/20/2003)
PROPOSED SCHEDULING ORDER SUBMITTED by plaintiff David A Johnson, defendant University of Iowa, defendant IA St Bd of Regents, defendant David J Skorton, defendant Douglas K True, defendant Susan Buckley ; Report not adopted, referred to Magistrate Judge Walters. (bp) (Entered: 12/05/2003)
24 SCHEDULING ORDER by Magistrate Judge Ross A. Walters; dispositive mtn ddl set 6/1/04; Case ready for trial as of 10/1/04; estimated length of trial 2−day bench trial; Discovery ddl set for 5/3/04 (cc: all counsel) (rmj) (Entered: 12/09/2003)
25 ORDER SETTING TRIAL AND FINAL PRETRIAL CONFERENCE 2−day bench trial 4/11/05 @ 9:00 before a US District Judge starting the 3−week period of 4/11/05; Case ready for trial SATISFIED; Final pretrial cnf before Judge Shields 3/7/05 @ Davenport, IA /s/ JRR, Clerk (cc: all counsel) (rmj) (Entered: 01/15/2004)
26 JOINT MOTION by plaintiff David A Johnson, defendant University of Iowa for notice of pendency of class action before Judge Ronald E. Longstaff (bp) (Entered: 02/17/2004)
27 MEMORANDUM by plaintiff David A Johnson in support [26−1] of motion for notice of pendency of class action before Judge Ronald E. Longstaff (bp) (Entered: 02/17/2004)
28 MOTION by defendants to extend dispositive motion ddl before Magistrate Judge Ross A. Walters (rmj) (Entered: 05/28/2004)
29 ORDER by Magistrate Judge Ross A. Walters granting motion to extend dispositive motion ddl; [28−1] Dispositive Motion ddl set for 7/19/04 (cc: all counsel) (rmj) (Entered: 06/01/2004)
30 MOTION by defendants for summary judgment before Judge Ronald E. Longstaff; ORAL ARGUMENT Requested (rmj) (Entered: 07/21/2004)
31 MEMORANDUM by defendants in support [30−1] of motion for summary judgment before Judge Ronald E. Longstaff (rmj) (Entered: 07/21/2004)
32 APPENDIX filed by defendants [30−1] re: motion for summary judgment before Judge Ronald E. Longstaff (rmj) (Entered: 07/21/2004)
33 STATEMENT OF UNCONTROVERTED FACTS by defendants [30−1] in support of motion for summary judgment before Judge Ronald E. Longstaff (rmj) (Entered: 07/21/2004)
34 MOTION by plaintiff for partial summary judgment before Judge Ronald E. Longstaff; Oral Argument Requested (rmj) (Entered: 07/21/2004)

Case: 3:03-cv-10062 As of: 11/25/2010 09:42 AM CST 4 of 6

07/21/2004 07/21/2004 07/21/2004 07/23/2004 07/23/2004 07/23/2004 08/10/2004 08/10/2004 08/10/2004 08/10/2004 08/10/2004 08/10/2004 08/10/2004 08/10/2004 08/12/2004
08/17/2004 08/17/2004 08/17/2004 08/17/2004

35 MOTION by plaintiff to exceed page limitation in its Brief in Support of Motion for Partial Summary Judgment before Magistrate Judge Ross A. Walters (rmj) (Entered: 07/21/2004)
36 STATEMENT OF UNDISPUTED MATERIAL FACTS by plaintiff [34−1] in support of motion for partial summary judgment before Judge Ronald E. Longstaff (rmj) (Entered: 07/21/2004)
37 APPENDIX filed by plaintiff [34−1] re: motion for partial summary judgment before Judge Ronald E. Longstaff [NO IMAGE; Greater than 200 pgs] (rmj) (Entered: 07/21/2004)
38 ORDER by Magistrate Judge Ross A. Walters granting motion to exceed page limitation in its Brief in Support of Motion for Partial Summary Judgment [35−1] (cc: all counsel) (rmj) (Entered: 07/23/2004)
39 MEMORANDUM by plaintiff in support [34−1] of motion for partial summary judgment before Judge Ronald E. Longstaff; Oral Argument Requested (rmj) (Entered: 07/23/2004)
40 RESISTANCE by defendants to Plf's motion to file overlength brief [Pldg No 35][Granted previously this date by RAW] (rmj) (Entered: 07/23/2004)
41 BRIEF IN RESISTANCE by defendants to motion for partial summary judgment before Judge Ronald E. Longstaff [34−1] (rmj) (Entered: 08/10/2004)
42 APPENDIX IN RESPONSE/RESISTANCE to Plf's motion for summary judgment filed by defendant [41−1] (rmj) (Entered: 08/10/2004)
43 MOTION by defendants to strike certain evidentiary materials in Plf's memorandum in support of summary judgment [39−1] before Judge Ronald E. Longstaff (rmj) (Entered: 08/10/2004)
44 RESPONSE by defendants [36−1] to Plf's statement of uncontroverted material facts (rmj) (Entered: 08/10/2004)
45 RESPONSE by plaintiff to Dfts' statement of uncontroverted facts[33−1] (rmj) (Entered: 08/10/2004)
46 MOTION by plaintiff to exceed page limitation in its Brief in support of resistance to Dfts' motion for summary judgment before Magistrate Judge Ross A. Walters (rmj) (Entered: 08/10/2004)
47 STATEMENT OF ADD'L MATERIAL FACTS by plaintiff (rmj) (Entered: 08/10/2004)
48 SUPPLEMENTAL APPENDIX re resistance to Dfts' motion for summary judgment filed by plaintiff (rmj) (Entered: 08/10/2004)
49 ORDER by Magistrate Judge Ross A. Walters denying motion to exceed page limitation in its Brief in support of resistance to Dfts' motion for summary judgment; Plf may have 14 days to file a recast brief [46−1] (cc: all counsel) (rmj) (Entered: 08/12/2004)
50 REPLY/MEMORANDUM IN SUPPORT THEREOF by plaintiff re [34−1] motion for partial summary judgment before Judge Ronald E. Longstaff (rmj) (Entered: 08/17/2004)
51 SECOND SUPPLEMENTAL APPENDIX by plaintiff [48−1] to Dfts' resistance to Plf's motion for partial summary judgment [34−1] before Judge Ronald E. Longstaff (rmj) (Entered: 08/17/2004)
52 RESISTANCE by plaintiff to motion to strike certain evidentiary materials in Plf's memorandum in support of summary judgment [39−1] before Judge Ronald E. Longstaff [43−1] (rmj) (Entered: 08/17/2004)
53 MEMORANDUM plaintiff in support of its resistance to Dfts' motion to strike [52−1] (rmj) (Entered: 08/17/2004)

Case: 3:03-cv-10062 As of: 11/25/2010 09:42 AM CST 5 of 6

08/17/2004 08/17/2004 08/17/2004 08/17/2004 08/17/2004 08/17/2004 08/25/2004 08/30/2004 08/31/2004
08/31/2004 08/31/2004 08/31/2004 08/31/2004 09/07/2004 09/07/2004 09/08/2004 09/08/2004 09/08/2004 09/14/2004

54 MOTION by plaintiff to strike re failure to properly deny or qualify responses [44−1] before Judge Ronald E. Longstaff [36−1] (rmj) (Entered: 08/17/2004)
55 MEMORANDUM by plaintiff in support [54−1] of motion to strike re failure to properly deny or qualify responses [44−1] before Judge Ronald E. Longstaff [36−1] (rmj) (Entered: 08/17/2004)
56 MOTION by plaintiff to strike responses and expert opinion of Jennifer Niebyl, MD in Dfts' appendix re motion for summary judgment [32−1] before Judge Ronald E. Longstaff (rmj) (Entered: 08/17/2004)
57 MEMORANDUM by plaintiff in support [56−1] of motion to strike responses and expert opinion of Jennifer Niebyl, MD in Dft's appendix re motion for summary judgment [32−1] before Judge Ronald E. Longstaff (rmj) (Entered: 08/17/2004)
58 MOTION by plaintiff to strike portions of the expert opinion of Dr. Kent Jayne in Dfts' appendix to motion for summary judgment [32−1] before Judge Ronald E. Longstaff (rmj) (Entered: 08/17/2004)
59 MEMORANDUM by plaintiff in support [58−1] of motion to strike portions of the expert opinion of Dr. Kent Jayne in Dfts' appendix to motion for summary judgment [32−1] before Judge Ronald E. Longstaff (rmj) (Entered: 08/17/2004)
60 ORDER by Judge Ronald E. Longstaff granting motion for notice of pendency of class action; the parties are authorized to proceed with the plan for notification as outlined in the joint motion [26−1] (cc: all counsel) (rmj) (Entered: 08/25/2004)
61 MEMORANDUM by plaintiff David A Johnson in opposition to motion for partial summary judgment before Judge Ronald E. Longstaff; Oral Argument Requested [34−1] (bp) (Entered: 08/30/2004)
62 RESPONSE by defendants [54−1] re: motion to strike re failure to properly deny or qualify responses [44−1] before Judge Ronald E. Longstaff [36−1], [44−1] re: response, [36−1] re: Plfs' Statement of Uncontroverted Facts (rmj) (Entered: 08/31/2004)
63 RESISTANCE by defendants to motion to strike responses and expert opinion of Jennifer Niebyl, MD in Dfts' appendix re motion for summary judgment [32−1] before Judge Ronald E. Longstaff [56−1] (rmj) (Entered: 08/31/2004)
64 MEMORANDUM by defendants in support [63−1] their resistance to motion to strike the testimony of Dr Jennifer Niebyl (rmj) (Entered: 08/31/2004)
65 RESISTANCE by defendants to motion to strike portions of the expert opinion of Dr. Kent Jayne in Dfts' appendix to summary judgment [32−1] before Judge Ronald E. Longstaff [58−1] (rmj) (Entered: 08/31/2004)
66 MEMORANDUM by defendants in support [65−1] of their resistance to motion to strike the testimony of Kent Jayne (rmj) (Entered: 08/31/2004)
67 MOTION by plaintiff David A Johnson to amend order certifying class before Judge Ronald E. Longstaff (bp) (Entered: 09/07/2004)
68 MEMORANDUM by plaintiff David A Johnson in support [67−1] of motion to amend order certifying class before Judge Ronald E. Longstaff (bp) (Entered: 09/07/2004)
69 RESPONSE/REPLY by defendants [47−1] re: statement of additional material facts (bp) (Entered: 09/08/2004)
70 REPLY by defendant re [61−1] memorandum in support of its motion for summary judgment (bp) (Entered: 09/08/2004)
71 APPENDIX (volume III) filed by defendant (bp) (Entered: 09/08/2004)
72 MOTION by plaintiffs for leave to file Surreply in support of their resistance to Dfts' Motion for summary judgment before Magistrate Judge Ross A. Walters (rmj) (Entered: 09/14/2004)

Case: 3:03-cv-10062 As of: 11/25/2010 09:42 AM CST 6 of 6

09/14/2004 09/17/2004 09/17/2004 09/17/2004 09/17/2004 11/08/2004 11/08/2004 11/29/2004
12/01/2004 12/16/2004
12/17/2004 12/29/2004
01/04/2005 01/04/2005 12/06/2005 01/09/2006

73 MEMORANDUM by plaintiffs in support [72−1] of motion for leave to file Surreply in support of their resistance to Dfts' Motion for summary judgment before Magistrate Judge Ross A. Walters (rmj) (Entered: 09/14/2004)
RESISTANCE by plaintiff to motion to amend order certifying class before Judge Ronald E. Longstaff [67−1] (rmj) (Entered: 09/17/2004)
74 RESISTANCE by defendants to motion to amend order certifying class before Judge Ronald E. Longstaff [67−1] (rmj) (Entered: 09/17/2004)
75 MEMORANDUM by defendants in support [74−1] of its resistance to plf's motion to amend class (rmj) (Entered: 09/17/2004)
76 RESISTANCE by defendant to motion for leave to file Surreply in support of their resistance to Dfts' Motion for summary judgment before Magistrate Judge Ross A. Walters [72−1] (rmj) (Entered: 09/17/2004)
77 MOTION for Leave to File addition exhibits in support of motion for partial summary judgmentre: liability. by David A Johnson. Responses due by 11/26/2004 (don, ) (Entered: 11/08/2004)
78 MEMORANDUM in Support re 77 MOTION for Leave to File filed by David A Johnson. (don, ) (Entered: 11/08/2004)
79 RESPONSE to Motion re 77 MOTION for Leave to File Defendants' Resistance to Plaintiff's Motion for Leave to Amend Record filed by David J Skorton, Douglas K True, University of Iowa, sued as State Board of Regents. Replies due by 12/9/2004. (Attachments: # 1 Brief)(Carroll, George) (Entered: 11/29/2004)
80 ORDER granting 77 plaintiff's Motion for Leave to File supplemental exhibits. Defendant may supplement record within 14 days as described in order. Entered by Magistrate Judge Ross A. Walters on 12/1/2004. (klw) (Entered: 12/01/2004)
81 ORDER granting 30 Motion for Summary Judgment, denying 34 Motion for Partial Summary Judgment, denying 43 Motion to Strike, denying 54 Motion to Strike, denying 56 Motion to Strike, denying 58 Motion to Strike, granting 72 Motion for Leave to File, finding as moot and denying 67 Motion to Amend/Correct . Entered by Chief Judge Ronald E. Longstaff on 12/16/2004. (dsg) (Entered: 12/16/2004)
82 JUDGMENT (summary judgment granted in favor of Defendants against Plaintiff . Entered by James R Rosenbaum Clerk on 12/17/2004. (don, ) (Entered: 12/17/2004)
83 NOTICE OF APPEAL as to 81 Order on Motion for Summary Judgment, Order on Motion for Partial Summary Judgment, Order on Motion to Strike, Order on Motion for Leave to File, Order on Motion to Amend/Correct, 82 Judgment by David A Johnson. Filing fee $ 255, receipt number 69878. (don, ) (Entered: 12/30/2004)
84 USCA Appeal Fees received $ 255 receipt number 71041 re 83 Notice of Appeal, filed by David A Johnson, (don, ) (Entered: 01/04/2005)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 83 Notice of Appeal, (don, ) (Entered: 01/04/2005)
85 USCA Case Number 05−1184 for 83 Notice of Appeal, filed by David A Johnson,. (don, ) (Entered: 12/06/2005)
86 MANDATE of USCA as to 83 Notice of Appeal, filed by David A Johnson, affirming the district court's decision. (don, ) (Entered: 01/09/2006)

 
 David A. JOHNSON, on his own behalf and on behalf of..., 2005 WL 5628994...

2005 WL 5628994 (C.A.8) (Appellate Brief) United States Court of Appeals, Eighth Circuit.
David A. JOHNSON, on his own behalf and on behalf of all others similarly situated, Plaintiff-Appellant, v.
UNIVERSITY OF IOWA, State Board of Regents, David J. Skorton, M.D., in his official capacity, Douglas K. True, in his official capacity, and Susan C. Buckley, in her official capacity, Defendants-Appellees.
No. 05-1184. February 28, 2005.
Appeal From the United States District Court For the Southern District of Iowa, Davenport Division-Rock Island Location Case No. 3 03 CV10062 The Honorable Judge Ronald L. Longstaff, Presiding

Brief of Appellant David A. Johnson

Larew Law Office, James C. Larew 0008533, 504 E. Bloomington Street, Iowa City, Iowa 52245, Phone: (319) 337-7079, Fax: (319) 337-7082, Attorney for Plaintiff-Appellant.

SUMMARY OF THE CASE
Plaintiff-Appellant David A. Johnson (Mr. Johnson), a Clerk IV employee of the University of Iowa, Iowa City, Iowa, in a civil class action lawsuit for damages and injunctive relief advances Federal and pendent State law claims. The University’s Operations Manual, Section 22.8, captioned, “Parental Leave Policy,” sets forth a clearly stated Purpose: “To permit parents who have care giving responsibilities to have time off to spend with a child newly added to the family and, to the extent permitted by state law, to be paid during such leave.”

Notwithstanding that stated purpose, Mr. Johnson and all similarly-situated biological fathers are denied the use of any accrued paid sick leave for Parental Leave, although all other parents, including biological mothers and male and female adoptive parents, are allowed the use of accrued paid sick leave for that purpose. Mr. Johnson claims that, he, and other biological fathers who are similarly situated, should be allowed to use no less than five days (forty hours) of paid accrued sick leave to spend time with children who are newly added to their families. This is the same amount of accrued paid sick leave time allowed for Parental Leave by parents who adopt children. Mr. Johnson claims that the denial of this benefit of employment to biological fathers violates: Title VII of the Civil Rights Act of 1964, as amended; the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution; the Iowa Civil Rights Act; and the Equal Protection Clause of the Constitution of the State of Iowa.

In an Order dated December 16, 2004, the Federal District Court for the Southern District of Iowa denied all of Mr. Johnson’s claims, granting summary judgment to Defendants. Mr. Johnson now appeals that Order, and prays that the matter be remanded back to the District Court for a trial on the merits.

TABLE OF CONTENTS

SUMMARY OF THE CASE ...........................................................................................................................................

i

TABLE OF CONTENTS ..................................................................................................................................................

iii

TABLE OF AUTHORITIES ...........................................................................................................................................

viii

JURISDICTIONAL STATEMENT ..............................................................................................................................

xii

STATEMENT OF THE ISSUES ...................................................................................................................................

xiii

1

David A. JOHNSON, on his own behalf and on behalf of..., 2005 WL 5628994...

STATEMENT OF THE CASE .......................................................................................................................................

1

STATEMENT OF THE FACTS ....................................................................................................................................

4

1. The Parental Leave Policy: All Parents Allowed Paid Parental Leave To the Extent Permitted

5

By Law ......................................................................................................................................................................................

2. The “Biological Father Exclusion.” ..........................................................................................................................

7

3. The Strange Results Of The Decision To Exclude Biological Fathers From The Parental Leave

9

Policy’s Ambit .......................................................................................................................................................................

4. Political Processes, Exclusionary Results ..............................................................................................................

11

5. An Unexpected Answer To Mr. Johnson’s Question .........................................................................................

12

6. Biological Mothers Such As Ms. Embree, Are Allowed Paid Parental Leave But Not Biological

14

Fathers Such As Mr. Johnson For The Same Child Are Allowed Paid Parental Leave ............................

SUMMARY OF THE ARGUMENT ...........................................................................................................................

16

ARGUMENT AND APPLICABLE STANDARDS OF REVIEW ..................................................................

18

WHETHER THE FEDERAL DISTRICT COURT ERRED IN GRANTING

18

DEFENDANTS-APPELLEES SUMMARY JUDGMENT ON ALL CLAIMS MADE BY

PLAINTIFF-APPELLANT DAVID A. JOHNSON UNDER THE LAWS AND

CONSTITUTIONS OF THE UNITED STATES AND THE STATE OF IOWA? ...................................

I. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT TO

18

DEFENDANTS-APPELLEES BECAUSE, UNDER TITLE VII OF THE CIVIL RIGHTS ACT

OF 1964, AS AMENDED, THE UNIVERSITY OF IOWA’S PARENTAL LEAVE POLICY,

BOTH FACIALLY AND AS APPLIED TO MR. JOHNSON AND TO SIMILARLY SITUATED

BIOLOGICAL FATHERS, UNLAWFULLY DISCRIMINATES ON THE BASES OF

“GENDER-PLUS” OR “SEX-PLUS” PARENTING STATUS AND GENDER STEREOTYPING

........................................................................................................................................................................................................

STANDARD OF REVIEW: .............................................................................................................................................

18

ARGUMENT: ........................................................................................................................................................................

19

A. The Policy Violates Title VII, Facially And As Applied, Because It Unlawfully Discriminates

19

On The Basis Of Mr. Johnson’s “Gender -Plus” Or “Sex-Plus” Status As A Male Who Is A

Biological Father ...................................................................................................................................................................

1. Mr. Johnson was denied use of employment due to his “gender-plus” or “sex-plus” status: a

22

male who is a biological father ........................................................................................................................................

2. The pattern of discrimination ......................................................................................................................................

23

3. The discrimination is intentional even if defendants demonstrate no ill-will ...........................................

24

B. The Policy violates Title VII, facially and as applied, because it Unlawfully Discriminates on

26

the Basis of Overbroad Gender Stereotypes ...............................................................................................................

1. The policy violates Title VII because, in effect, it relegates males and females to traditional

27

sex-based stereotypes ..........................................................................................................................................................

2

David A. JOHNSON, on his own behalf and on behalf of..., 2005 WL 5628994...

2. Tipping the scale ..............................................................................................................................................................

28

C. The District Court Re-Constructs an Unlawful Policy .....................................................................................

29

1. The District Court recasts the Parental Leave benefit as a disability benefit ............................................

30

2. As reconstructed by the District Court no parent gets Parental Leave under the Parental Leave

31

Policy .........................................................................................................................................................................................

3. The District Court fails to compare Mr. Johnson, in his capacity as a biological parent, to other

33

similarly situated parents ...................................................................................................................................................

4. The Parental Leave Policy violates the EEOC guidelines ...............................................................................

34

II. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT TO

35

DEFENDANTS-APPELLEES BECAUSE UNDER THE EQUAL PROTECTION CLAUSE OF

THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION, THE

UNIVERSITY OF IOWA’S PARENTAL LEAVE POLICY, BOTH FACIALLY AND AS

APPLIED TO MR. JOHNSON AND TO SIMILARLY SITUATED BIOLOGICAL FATHERS,

UNLAWFULLY DISCRIMINATES ON THE BASES OF “GENDER-PLUS OR “SEX-PLUS

PARENTING STATUS AND GENDER STEREOTYPING .............................................................................

STANDARD OF REVIEW: .............................................................................................................................................

35

ARGUMENT: ........................................................................................................................................................................

36

A. The Parental Leave Policy Violates The Equal Protection Clause, Facially and As Applied

36

Because is Unlawfully Discriminates On The Basis of Mr. Johnson’s “Gender-Plus” or “Sex-Plus”

Status as a Male Who is a Biological Father ..............................................................................................................

1. The Parent-Child Bond as a Fundamental Right .................................................................................................

37

B. The Parental Leave Policy Violates Constitutional Guarantees of Equal Protection Because it

38

Discriminates on the Basis of Gender and This Discrimination is Not Substantially Related to the

Achievement of An Important Governmental Objective .......................................................................................

1. Threshold Standards under Equal Protection Analysis .....................................................................................

38

2. Heightened Scrutiny .......................................................................................................................................................

41

C. The District Court’s Determination That The Parental Leave Policy Should Be Subjected To A

42

Rational Basis Test-And Not To Heightened Scrutiny--Constitutes Error At Law. However, Even

If This Court Were To Agree That The Policy Should Be Subjected To A Rational Basis Test, The

Policy Violates Constitutional Guarantees Of Equal Protection Under The Fourteenth Amendment

Because The Exclusion Of Biological Fathers As A Category Of Persons From The Use Of Paid

Accrued Sick Leave For Childrearing, A Benefit Conferred Upon All Others Similarly Situated

Employees, Is Arbitrary, Capricious And Not Rationally Related To Any Governmental Purpose ....

1. The Rational Basis Test .................................................................................................................................................

42

2. “Gender-Plus” and “Sex-Plus” Revisited ...............................................................................................................

44

III. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT TO

45

DEFENDANTS-APPELLEES BECAUSE THE PARENTAL LEAVE POLICY VIOLATES THE

IOWA CIVIL RIGHTS ACT, IOWA CODE § 216.6(1) (2003) ...............................................................

3

David A. JOHNSON, on his own behalf and on behalf of..., 2005 WL 5628994...
STANDARD OF REVIEW: ............................................................................................................................................. ARGUMENT: ........................................................................................................................................................................ IV. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT TO DEFENDANTS-APPELLEES BECAUSE THE PARENTAL LEAVE POLICY VIOLATES THE EQUAL PROTECTION CLAUSE OF ARTICLE 1, SECTION 6 OF THE IOWA CONSTITUTION ................................................................................................................................................................. STANDARD OF REVIEW: ............................................................................................................................................. ARGUMENT: ........................................................................................................................................................................ A. Parental Rights as Fundamental Rights under the Iowa Constitution ........................................................ 1. Independent Review Under Fitzgerald II ............................................................................................................... 2. Rational Basis Under Fitzgerald II. .......................................................................................................................... 3. Application of the Fitzgerald II Standard of Review ......................................................................................... CONCLUSION ..................................................................................................................................................................... REQUEST FOR ORAL ARGUMENT ........................................................................................................................ CERTIFICATE OF COMPLIANCE ............................................................................................................................ ATTORNEY COST CERTIFICATE ........................................................................................................................... CERTIFICATE OF SERVICE ........................................................................................................................................ CERTIFICATE OF FILING ............................................................................................................................................ ADDENDUM ........................................................................................................................................................................
TABLE OF AUTHORITIES Cases Abraham v. Graphic Arts International Union, 660 F.2d 811, 819 (D.C.C. 1981) ....................................................................................
Back v. Hastings on Hudson Union Free School District, 365 F.3d 107, 118-119 (2nd Cir. 2004) ............................................
Bierkamp v. Rogers, 293 N.W.2d 577, 581 (Iowa 1980) .... Bills v. Dahm, 32 F.3d 333, 336 (8th Cir. 1994) ...........................
Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001) .....
Caban v. Mohammed, 441 U.S. 380, 388 (1979) ...................
4

46 46 47
47 48 49 50 51 53 55 56 57 57 58 58 59
24
36, 37
54 40 41 39

David A. JOHNSON, on his own behalf and on behalf of..., 2005 WL 5628994...
Caban v. Mohammed, 441 U.S. 380, 388 (1979) (quoting Craig v Boren, 429 U.S. 190, 197 (1976) .................................
Callender v. Skiles, 591 N.W.2d 182, 190 (Iowa 1999) ...... Carter v. St. Louis University, 167 F.3d 398, 400 (8th Cir. 1999) .............................................................................................................. Chesterfield Dev. Corp. v. City of Chesterfield, 963 F.2d 1102, 1104 (8th Cir. 1992) ....................................................................
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 446 (1985) ...................................................................................................
Coleman v. B-G Maintenance Management of Colorado, Inc., 108 F.3d 1199, 1204 (10th Cir. 1997) ....................................
Connecticut v. Teal, 457 U.S. 440, 455 (1982) .......................
Craig v. Boren, 429 U.S. 190, 197 (1976) ................................
Davis v. Passman, 442 U.S. 228, 234-35 (1979) ...................
F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920) ............................................................................................................ Fuller v. Iowa Dep’t of Human Servs., 576 N.W.2d 324, 329 (Iowa 1998) .................................................................................................
Harrah Independent School District v. Martin, 440 U.S. 194 (1979) ...................................................................................................
Hishon v. King & Spalding, 467 U.S. 69, 75 (1984) ............ In re Detention of Morrow, 616 N.W.2d at 548 (2001) .............
In re Detention of Williams, 628 N.W.2d 447, 452 (Iowa 2001) ..............................................................................................................
Inglis v. Buena Vista Univ., 235 F. Supp. 2d 1009. 119 (N.D. Iowa 2002) ......................................................................................
Int’l Union, United Auto v. Johnson Controls, 499 U.S. 187 (1991) ................................................................................................... King v. Iowa Civil Rights Comm’n, 334 N.W.2d 598, 601 (Iowa 1983) ................................................................................................. Knussman v. Maryland, 272 F.3d 625, 636-37 (4th Cir. 2001) ..............................................................................................................
5

49
49 18, 35, 46, 47
43 44 44 21 39 39 42 47 43 39 49 50 46 24, 25, 35 47 26, 27

David A. JOHNSON, on his own behalf and on behalf of..., 2005 WL 5628994...
Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702, 711 (1978) ...............................................................................
Mathews v. De Castro, 429 U.S. 181, 185 (1976) .................
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, (1986) ..............................................................................
Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982) ...................................................................................................
Moore v. Warwick Public School Dist. No. 29, 794 F.2d 322, 329 (8th Cir. 1986) .........................................................................
Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721 (2003) ...................................................................................................
Nordlinger v. Hahn, 505 U.S. 1, 11 (1992) ..............................
Orr v. Orr, 440 U.S. 268, 283 (1979) .........................................
Phillips v. Martin Marietta Corp., 400 U.S. 542, 544 (1971) ............................................................................................................
Racing Association of Central Iowa v. Fitzgerald, 675 N.W.2d 1 (Iowa 2004) ............................................................................
Ricketts v. City of Columbia, 36 F.3d 775, 781 (8th Cir. 1994) ..............................................................................................................
Riddle v. Mondragon, 83 F.3d 1197, 1207 (10th Cir. 1996) ..............................................................................................................
Santi v. Santi, 633 N.W.2d 312, 317 (Iowa 2001) .................
Scusa v. Nestle U.S.A. Co., 181 F.3d 958, 964 (8th Cir. 1999) ..............................................................................................................
Shafer v. Board of Public Education of the School Dist. of Pittsburgh, 903 F.2d 243 (3rd Cir. 1990) ........................................
Thompson v. KFB Ins. Co., 850 P.2d 773, 782 (Kan. 1993) ..............................................................................................................
TWA v. Thurston, 469 U.S. 111, 121 (1985) ............................
United States v. Virginia, 518 U.S. 515, 524 (1996) ............
Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264-65 (1977) ......................
6

26 54 19, 36, 46, 48 40, 45 43 29 53 27 20 48, 49, 50, 51, 53, 55 40 42 49 19, 35, 46, 47 21, 22 55 35 39, 45 36

David A. JOHNSON, on his own behalf and on behalf of..., 2005 WL 5628994...

Vivian v. Madison, 601 N.W.2d 872, 873 (Iowa 1999) .......

46

Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) ....................

29, 37

Constitutional Provisions

U.S. CONST. Amend. XIV ..................................................................

1, 16, 35, 38, 39, 40, 42, 51, 53

IOWA CONST. Art. I, Section 6 ........................................................

16, 47, 48, 49, 50, 51, 52, 53

Statutes

28 U.S.C. § 1441 ................................................................................

xii

28 U.S.C. § 1331 .......................................................................................

xii

29 C.F.R. § 825.202 (c) (1995) ...........................................................

31

42 U. S. C. § 2000e-2(a) The Civil Rights Act of 1964, Section 703(a) as amended Title (VII) .............................................

1, 19

Iowa Code § 216.6(1) (Iowa Civil Rights Act), (2003) .......

46

Iowa Code § 216.6(2)(e)(2003) ....................................................

31

Rules

Fed. R. Civ. P. 56(c) ................................................................................

19, 36, 46, 48

Federal Rule of Appellate Procedure 4(a)(1)(A) ..........................

xii, 3

Other Authorities

1 BARBARA LINDEMANN & PAUL GROSSMAN,

20

EMPLOYMENT DISCRIMINATION LAW 456 (3rd ed.

1996) ..............................................................................................................

Lex K. Larson, EMPLOYMENT DISCRIMINATION, § 40.04, at 40-12 (2nd ed. 1996) 45

Developments in the Law, Employment Discrimination and

26

Title VII of the Civil Rights Act of 1964, 84 Harv. L. Rev.

1109, 1170 (1971) ....................................................................................

Joan C. Williams & Nancy Segal, Comment, Beyond the

37

Maternal Wall: Relief for Family Caregivers Who Are

Discriminated Against on the Job, 26 HARV. WOMEN’S L.

J. 77 (2003) ..................................................................................................

JURISDICTIONAL STATEMENT

The District Court had original subject matter jurisdiction over this litigation pursuant to 28 U.S.C. §§ 1331 and 7

1441.

David A. JOHNSON, on his own behalf and on behalf of..., 2005 WL 5628994...
This civil class action lawsuit was brought by Plaintiff-Appellant David A. Johnson (“Mr. Johnson”). He seeks injunctive relief and monetary damages in claims advanced under the Constitution of the United States and under Ttile VII of the Civil Rights Act of 1964, as Amended. Pendent claims are also made by Mr. Johnson under the Iowa Civil Rights Act and the Constitution of the State of Iowa.
This Court has jurisdiction over the appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1)(A). The appeal is taken from a December 16, 2004 Order of the Federal District Court for the Southern District of Iowa-Davenport Division, the Honorable Ronald L. Longstaff, Presiding, granting Defendants’ Motion for Summary Judgment on all of Mr. Johnson’s claims and denying Mr. Johnson’s Motion for Partial Summary Judgment. Mr. Johnson timely filed his Notice of Appeal on December 29, 2004.
STATEMENT OF THE ISSUES
WHETHER THE FEDERAL DISTRICT COURT ERRED IN GRANTING DEFENDANTS-APPELLEES SUMMARY JUDGMENT ON ALL CLAIMS MADE BY PLAINTIFF-APPELLANT DAVID A. JOHNSON UNDER THE LAWS AND CONSTITUTIONS OF THE UNITED STATES AND THE STATE OF IOWA?
I. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT TO DEFENDANTS-APPELLEES BECAUSE, UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED, THE UNIVERSITY OF IOWA’S PARENTAL LEAVE POLICY, BOTH FACIALLY AND AS APPLIED TO MR. JOHNSON AND TO SIMILARLY SITUATED BIOLOGICAL FATHERS, UNLAWFULLY DISCRIMINATES ON THE BASES OF “GENDER-PLUS” OR “SEX-PLUS” PARENTING STATUS AND GENDER STEREOTYPING.
Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971).
Shafer v. Board of Public Education of the School Dist. of Pittsburgh, 903 F.2d 243 (3rd Cir. 1990).
Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721 (2003).
Civil Rights Act of 1964, Section 703(a)(as amended at 42 U.S.C. § 2000e-2(a) (Title VII)
II. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT TO DEFENDANTS-APPELLEES BECAUSE UNDER THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION, THE UNIVERSITY OF IOWA’S PARENTAL LEAVE POLICY, BOTH FACIALLY AND AS APPLIED TO MR. JOHNSON AND TO SIMILARLY SITUATED BIOLOGICAL FATHERS, UNLAWFULLY DISCRIMINATES ON THE BASES OF “GENDER-PLUS OR “SEX-PLUS PARENTING STATUS AND GENDER STEREOTYPING.
Back v. Hastings on Hudson Union Free School District, 365 F.3d 107, 118-119 (2nd Cir. 2004)
Harrah Independent School District v. Martin, 440 U.S. 194 (1979)
Coleman v. B-G Maintenance Management of Colorado, Inc., 108 F.3d 1199, 1204 (10th Cir. 1997)
U. S. CONST. amend. XIV
III. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT TO DEFENDANTS-APPELLEES BECAUSE THE PARENTAL LEAVE POLICY VIOLATES THE IOWA CIVIL RIGHTS ACT, IOWA CODE § 216.6(1) (2003)
Inglis v. Buena Vista Univ., 235 F. Supp. 2d 1009. 119 (N.D. Iowa 2002)
Fuller v. Iowa Dep’t of Human Servs., 576 N.W.2d 324, 329 (Iowa 1998)
8

David A. JOHNSON, on his own behalf and on behalf of..., 2005 WL 5628994...
Iowa Civil Rights Act (ICRA), Iowa Code § 216.6(1) (2003)
IV. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT TO DEFENDANTS-APPELLEES BECAUSE THE PARENTAL LEAVE POLICY VIOLATES THE EQUAL PROTECTION CLAUSE OF ARTICLE 1, SECTION 6 OF THE IOWA CONSTITUTION
Racing Association of Central Iowa v. Fitzgerald, 675 N.W.2d 1 (Iowa 2004).
IA CONST. Art. I, § 6
STATEMENT OF THE CASE
Plaintiff-Appellant David A. Johnson (Mr. Johnson), an employee of the University of Iowa, Iowa City, Iowa, alleges that, as applied to him and all similarly situated biological fathers, the Parental Leave Policy, as set forth in Section 28.2 of the University’s Operations Manual, unlawfully prohibits the use of accrued paid sick leave to spend time with children newly brought into their families.
Mr. Johnson timely filed a complaint with the Iowa Civil Rights Commission (ICRC) and the Equal Employment Opportunity Commission (EEOC): each agency issued Administrative Releases (Right to Sue Letters).
On June 11, 2003, Mr. Johnson filed a Complaint in the Federal District Court, Southern District of Iowa, against his employer, against the University of Iowa, State Board of Regents and against three individuals acting in their official capacities: David Skorton M.D., Douglas K. True, and Susan C. Buckley. He alleged that the University’s Parental Leave Policy violates Title VII of the Civil Rights Act of 1964, as amended at 42 U.S.C. § 2000e-2(a) (Title (VII), and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Mr. Johnson seeks monetary relief for himself and other similarly situated biological fathers, as well as an injunctive order requiring the University to amend its Parental Leave Policy, to conform with applicable law.
On June 11, 2003, Mr. Johnson filed a Petition in Equity in the Iowa District Court for Johnson County, against Defendants University of Iowa and State Board of Regents, this time under Iowa Code Chapter 216, the Iowa Civil Rights Act, and under Article I, Section 6 of the Constitution of Iowa. Again, Mr. Johnson seeks monetary relief for himself and others similarly situated, as well as an injunctive order requiring the University to amend its Parental Leave Policy to conform with applicable law. On October 9, 2003 the Federal District Court entered an Order allowing its file to be merged with the pendent state law claims filed in the Iowa District Court for Johnson County.
On November 19, 2003, the Federal District Court entered an Order certifying the class of similarly-situated biological fathers who are or were employees of the University of Iowa and subject to the University’s Parental Leave Policy.
On July 19, 2004, Defendants filed a Motion for Summary Judgment, seeking judgment in Defendants’ favor as to all of Mr. Johnson’s Federal and State law causes of action.
On the same day, Mr. Johnson filed a Motion for Partial Summary Judgment, seeking judgment in his favor as to all issues of liability (but not as to the issue of damages) on all claims made by him. Mr. Johnson also filed a Motion to Amend the earlier Order Certifying Class, to clarify the scope of that class’s membership.
On December 16, 2004, the District Court, the Honorable Ronald L. Longstaff, Presiding, issued an Order granting Defendants’ Motion for Summary Judgment on all claims, denying Mr. Johnson’s Motion for Partial Summary Judgment on all claims, and rendering as moot Mr. Johnson’s Motion to Amend the Order Certifying Class.
On December 29, 2004, Mr. Johnson filed Notice of Appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1)(A).
STATEMENT OF THE FACTS
Plaintiff David Anthony Johnson (hereafter, sometimes, “Mr. Johnson”) is a male, non-union merit staff employee of
9

David A. JOHNSON, on his own behalf and on behalf of..., 2005 WL 5628994...
Defendant University of Iowa (hereafter, and, collectively as to all named Defendants, sometimes referred to as “University”), working since June 1, 1999, at the Office of Registrar, classified as a Clerk IV. (Aplt. A. 101-102)1. He is married to another University employee, Ms. Jennie L. Embree, a Program Assistant at the University’s College of Nursing. (Aplt. A. 101, 346).
The terms and conditions of both Mr. Johnson’s and Ms. Embree’s employment are governed by written rules published in the University’s Operations Manual, a contractually-binding document. (Aplt. A. 229-245). At Chapter 22 of the Operations Manual, the University sets forth its policies regarding leaves and absences. (Aplt. A. 241-243). Pursuant to its provisions, absences are subject to the Family and Medical Leave Act (“FMLA”), and employees are, therefore, allowed up to 12 weeks of leave, paid or unpaid, in a calendar year, if the conditions set forth under the University’s interpretation of the FMLA are met. If one University employee is married to another University employee, the 12-week leave limit is deemed by the University as cumulative between them, not additive. That is, such a couple is entitled to a total combined leave of 12 weeks--not 24 weeks-in any rolling 12 month period.
1. The Parental Leave Policy: All Parents Allowed Paid Parental Leave To the Extent Permitted By Law.
Section 22.3 of the Operations Manual directs that employees may accrue paid sick leave. (Aplt. A. 241-243). Section 22.8, captioned, “Parental Leave Policy” (hereafter, sometimes, “Policy”), includes, in relevant part, the following terms and conditions:
22.8 PARENTAL LEAVE POLICY
a. Purpose. To permit parents who have care giving responsibilities to have time off to spend with a child newly added to the family and, to the extent permitted by state law, to be paid during such leave. To adapt an employee’s work schedule and/or duties to help reduce conflict with parental obligations.
b. Entitlement to Leave.
(1) Twelve-Month Faculty, Professional, Scientific, and Non-Organized Merit System Staff.
(a) Biological mothers are entitled to leave for any period of pregnancy-related temporary disability, to be charged against sick leave. Based on current medical practice, a leave of six weeks or less would not require the employee to provide disability documentation. If an employee’s accumulated sick leave is insufficient to cover the period of disability, the employee will, at the employee’s request, be granted a leave of absence without pay. Any request for absence beyond the period of disability is considered as a leave of absence without pay or as vacation.
(b) A newly adoptive parent, including a domestic partner, is entitled to one week (5 days) of paid adoption leave to be charged against accrued sick leave. Departments are encouraged to arrange for additional leave as necessary. Departments should work with prospective adoptive parents seeking to adopt through an adoption agency with specific requirements for Parental Leave, to the extent the adoption leave is not sufficient to undertake an adoption. Time not charged to accrued sick leave may be charged to accrued vacation or taken as leave without pay.
(emphasis added).(Aplt. A. 241-242).
That the plain meaning of the Policy should allow biological fathers to utilize accrued paid sick leave to the same extent as other parents are allowed, is made clear by examining relevant University documents and by reviewing statements made by University administrators charged with the responsibility of formulating and implementing the Policy attest.
In a document captioned “Informational Guide,” the University states that, pursuant to Section 22.8, “leave is for the biological mother to recover from childbirth and to spend time with the newborn child or for either or both parents to spend time with a newly adopted child.” (Aplt. A. 331-332). The University, at its own website, further explains that Section 22.8, “allows new parents who are caregivers time off to spend with a child added to the family through birth or adoption and, to the extent permitted by state law, to be paid during the leave.” (Aplt. A. 458). University administrators uniformly testify that the Policy is intended to provide support for the children and families of University employees. (Aplt. A. 124). Any leave taken under the Policy is explicitly for the purpose of child rearing. (Aplt. A. 254).
10

David A. JOHNSON, on his own behalf and on behalf of..., 2005 WL 5628994...
The Parental Leave Policy is not narrowly defined as a disability or a maternal leave policy. According to the Policy’s express terms, a biological mother is not required to provide any proof of pregnancy-related disability in order to use accrued sick leave for the first six weeks after childbirth. Nor does the Policy require a biological mother to provide medical proof of her postpartum ability to work before returning to return to her employment during that time period. (Aplt. A. 241, 242).
2. The “Biological Father Exclusion.”
Notwithstanding unambiguous, gender-neutral purpose of the Policy (“To permit parents who have care giving responsibilities to have time off to spend with a child newly added to the family and to the extent permitted by state law, to be paid during such leave.”), as implemented by the University, all parents except biological fathers, are allowed to use accrued paid sick leave for Parental Leave. For example, while excluding parent-employees who happen to be biological fathers (say, for example, Mr. Johnson) from this benefit of employment the following parent-employees are eligible to use accrued paid sick leave for Parental Leave to have time off to spend with a child newly added to the family if the employees have care giving responsibilities: biological mothers, whether single, married, cross-gendered or a domestic partner (Aplt. A. 122); adoptive mothers, whether single, married, cross-gendered or a domestic partner. (Aplt. A. 119, 122); adoptive fathers, whether single, married, cross-gendered or a domestic partner. (Aplt. A. 121-122); and parents who assume parental rights by surrogacy--if they are not the biological father of the child. (Aplt. A. 119-220).
Further, University employees who are members of what might be characterized as “non-traditional” couple-relationships may use accrued paid sick leave for Parental Leave under the Policy, if, and only if, such employees are not biological fathers. That is to say: when a biological mother and her domestic partner adopt the biological mother’s child each partner is entitled to the use of accrued paid sick leave for Parental Leave (Aplt. A. 124); each female domestic partner in a domestic partnership who adopts a child from a third party is entitled to her separate, respective use of accrued paid sick leave for Parental Leave; and, each male domestic partner in a domestic partnership who adopts a child from a third party is entitled to his separate, respective use of accrued paid sick leave for Parental Leave. (Aplt. A. 124, 260, 261).
The Policy’s clearly-stated Purpose employs language that is both explicit and inclusive: the provision does not exclude biological fathers who are parents from having the benefits of the Policy conferred upon them. The University, nonetheless, purposely refuses to confer this benefit of employment to Mr. Johnson and all other similarly situated biological fathers.
What might, then, be called the “biological father exclusion” is exercised by this state employer, whether a particular biological father be single, married or a domestic partner. (Aplt. A. 101-108; 124-125; 259-261). The University’s decision to allow all parents except for biological fathers the use of accrued paid sick leave for Parental Leave purposes results in a strange--and, in Mr. Johnson’s opinion, unlawful-practice of having a state agency picking and choosing amongst similarly-situated employees as to which of them, as parents, it will, or will not, allow this earned benefit of employment.
3. The Strange Results Of The Decision To Exclude Biological Fathers From The Parental Leave Policy’s Ambit.
The strangeness of the Policy’s application can be easily illustrated. According to University of Iowa President David J. Skorton, for example, if two male domestic partners who are employees of the University and who are subject to the Policy were to have a child through a surrogacy, and if the child was the biological offspring of one of them, then, he admits, the biological partner of the surrogate child would not be allowed use of accrued paid sick leave for Parental Leave but the other domestic partner would be allowed the use of such Parental Leave benefits. (Aplt. A. 124). Even though both of them stand in equal status as parents of the same child.
That the University’s exclusion of Mr. Johnson and similarly situated biological fathers, is based solely on their status as biological fathers, is clear, as is noted, again, by President Skorton, in his sworn deposition testimony:
Q. You would agree with me that on its face, and as applied, that the Parental Leave policy confers benefits, or withhold benefits, to children and families based upon whether the father of the child whose birth is the cause of the Parental Leave is the biological father or not?
A. Yes.
Q. As far as you are familiar with the case, Dr. Skorton, are you aware of any reason other than the fact that David Johnson was a biological father of his daughter that he was denied the ability to use accrued sick leave benefits?
11

David A. JOHNSON, on his own behalf and on behalf of..., 2005 WL 5628994...
A. No.
Q.That was the sole reason, as far as you know?
A. As far as I know.
Q. You would agree with me that except for biological fathers, all other parent employees of the University of Iowa who are biological or adoptive parents of newborns, and who are subject to the provisions of the Parental Leave policy as set forth in section 22.8, are eligible to apply five days of accrued sick leave to the Parental Leave?
A. I believe that is correct.
(Aplt. A. 124)
The disparity of treatment is not simply one made between biological fathers, on the one hand, and adoptive parents, on the other hand, but, rather, is a disparity of treatment under which biological parents are treated differently in their respective roles as mothers and fathers of children. Again, President Skorton explains:
Q. Would you agree with me that women who reproduce a child, but not men who reproduce a child, are conferred the benefits as provided under the Parental Leave policy to care for that child as set forth in operations manual 22.8?
A. Yes.
Q. Would you agree that under the University of Iowa Parental Leave policy biological mothers, adoptive mothers, and adoptive fathers are conferred the benefit of using accrued sick leave towards paid leave to care for a child?
A. Yes.
(Aplt. A. 125)
4. Political Processes, Exclusionary Results.
The disparity in which the benefits of employment are conferred by this employer, as expressed by the University’s application of the Policy, results in the purposeful exclusion of biological fathers, alone, from using accrued paid sick leave for Parental Leave. This Policy outcome was the result of internal political discussion and debate within the University of Iowa administration prior to the occurrence of specific circumstances that gave rise to this lawsuit. (Aplt. A. 117, 118, 258-259, 263-264). Mr. Johnson’s deprivation is not accidental. And he is not alone.(Aplt. A.) 248
That University of Iowa employees who are biological fathers are uniquely and intentionally disqualified from use of the accrued paid sick leave benefit for Parental Leave can be demonstrated further by looking at two comparison groups of similarly-situated employees: first, among similarly-situated employees of other institutions governed by Defendant Iowa State Board of Regents; and, second, by looking within a particular family unit comprised of bi-sexual, married parents, both of whom are University employees: Mr. David A. Johnson and Ms. Jennie L. Embree, for example.
As to the first group--that is, comparably-placed non-unionize Professional and Scientific staff and faculty members and employees within the State Board of Regents system--it is not disputed that such biological fathers employed by Iowa State University, in Ames, are allowed the use of five days of accrued paid sick leave upon the arrival of a new child in a family. (Aplt. A. 227-228).
The University of Iowa’s disparate treatment of similarly-situated employees reaches into the intimate confines of individual family units themselves. As noted, Mr. Johnson’s spouse, Ms. Jennie L. Embree, is part-time employee of the University’s College of Nursing. At the time of the events giving rise to this lawsuit, she was a part-time employee, classified as a Professional Scientific employee, subject to the terms and conditions of Section 22.8 of the Operations Manual, and working 20 hours per week, as a Program Assistant. (Aplt. A. 102, 103).
5. An Unexpected Answer To Mr. Johnson’s Question. 12

David A. JOHNSON, on his own behalf and on behalf of..., 2005 WL 5628994...
In the Fall of 2002, in anticipation of the arrival of their first child, Mr. Johnson and Ms. Embree referred to the Operations Manual and began planning how they would be able to share in their parenting activities and duties. (Aplt. A. 103). The Operations Manual stipulates that married University employees are allowed to share, between them, a maximum of 12 weeks of leave time upon the birth of a child, an entitlement that, according to the University’s interpretation of Federal law, is guaranteed under the Family and Medical Leave Act (FMLA). The Operations Manual is less-than-clear, however, as to how two married University employees-one of them working full-time, the other, part-time--are to make arrangements to share the combined 12-week annual leave period allowed to them by the University. Mr. Johnson and Ms. Embree both assumed, given the express language setting forth the Purpose of the University’s Parental Leave Policy (e.g., “To permit parents who have care giving responsibilities to have time off to spend with a child newly added to the family and, to the extent permitted by state law, to be paid during such leave.”), that each of them, as parents, would be able to use their respective accrued paid sick leave hours to take time off from work to spend with their newborn child. (Aplt. A. 103).
By October 2002, Mr. Johnson had accrued more than forty hours of paid sick leave. (Aplt. A. 103). In that month, he attended a course taught by of the University’s Human Resources Department (“H.R.”) regarding leave policies. He learned, then, and for the first time, from the course instructors, that the University interpreted the Parental Leave Policy to mean that biological fathers of children newly added to families were precluded from using any accrued paid sick leave hours for Parental Leave purposes. All other parents except biological fathers qualified for this benefit of employment: all other parents could use accrued paid sick leave to have time off to spend with their children. (Aplt. A. 103-104)
Thinking that the course instructors had made a mistake in describing the Policy, as applied to him, Mr. Johnson directed written inquiries to a number of persons at the University, starting with Interim President Willard L. Boyd. (Aplt. A. 294). In response to Mr. Johnson’s query, University officials affirmed the correctness of the H.R. course instructors’ earlier statements: that, in fact, biological fathers, solely due to their status as biological fathers, were precluded by the University from using any accrued paid sick leave to have time off to spend with a children newly added to their families, notwithstanding the stated purpose of the Parental Leave Policy, and notwithstanding the fact that no state law prevented the use of accrued paid sick leave for this purpose. (Aplt. A. 105, 289, 295-296).
6. Biological Mothers Such As Ms. Embree, Are Allowed Paid Parental Leave But Not Biological Fathers Such As Mr. Johnson For The Same Child Are Allowed Paid Parental Leave.
In October and November of 2002, Ms. Embree’s supervisor granted her permission to use accumulated paid sick leave at the time of the anticipated birth of her child. (Aplt. A. 106-107). As planned, Ms. Embree would continue to work 20 hours per week until the newborn’s arrival. Thereafter, upon obtaining a medical release form from her physician, she would take four weeks of maternity leave, using accrued paid sick leave for that period. Then, upon returning to work, Ms. Embree would be compensated at her normal hourly rate for working part-time, or ten hours per week, and she would spend the other ten hours per week parenting her new child, but receiving compensation during her Parental Leave from her bank of accrued paid sick leave. (Aplt. A. 106-107, 287-288).
According to the written plan made with her employer, of the time spent at home after her return-to-work date, in her parenting capacity, one-half of it would be compensated, as Ms. Embree would be working 10 hours per week, whereas the other one-half would be compensated Parental Leave, as she drew upon her banked hours of accrued paid sick leave. Under this plan, Mr. Johnson would take the remainder of the 12 weeks’ combined and shared leave, the maximum allowed to couples wherein both are University of Iowa employees. (Aplt. A. 106-107).
On XX/XX/XXXX, Ms. Embree, gave birth; she and Mr. Johnson became the parents of their first child. (Aplt. A. 106). As planned and approved by the University, Ms. Embree took four weeks of paid maternity disability leave from her 20-hour per week job, drawing on her own accrued paid sick leave for that purpose. She obtained the required medical release, five weeks post-partum, and returned to work a part time (ten hours per week) basis. She was, in addition, compensated ten hours per week for Parental Leave for that week. The same arrangement applied for the sixth week post-partum. Seven weeks after the birth of their child, Ms. Embree returned to work and took no further paid Parental Leave time. She has remained as a Program Assistant, working twenty hours per week, from that date until the present moment. (Aplt. A. 106-107).
In contrast to Ms. Embree’s experience, her husband and her child’s father, Mr. Johnson, was precluded by the from using any of his accrued hours of paid sick leave for Parental Leave. As a consequence, when he took two weeks’ leave from his full time job upon the birth of his daughter, to spend time with the couple’s child and to assist his wife in fulfilling their parenting duties, it was on an unpaid basis. (Aplt. A. 107, 290-293).
13

David A. JOHNSON, on his own behalf and on behalf of..., 2005 WL 5628994...
SUMMARY OF THE ARGUMENT
Mr. David A. Johnson, in this class action civil lawsuit, advances Federal claims under the Title VII of the Civil Rights Act of 1964, as amended, and under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. He also asserts pendent state law claims under the Iowa Civil Rights Act and the Equal Protection Clause of the Iowa Constitution, Article I, Section 6.
As an employee of the University of Iowa Mr. Johnson is subject to policies contained within the University’s Operations Manual, Section 22.8, captioned, “Parental Leave.” That Policy sets forth a clearly stated Purpose: “To permit parents who have care giving responsibilities to have time off to spend with a child newly added to the family and, to the extent permitted by state law, to be paid during such leave.”
Mr. Johnson and all similarly-situated biological fathers are denied the use of any accrued paid sick leave for Parental Leave, although all other parents, including biological mothers and male and female adoptive parents, are allowed the use of accrued paid sick leave for Parental Leave. Mr. Johnson claims that, as a biological father of a newborn child parent, pursuant to the express terms and Purpose of Parental Leave Policy, he, and other biological fathers who are similarly situated, should be allowed to use no less than five days (forty hours) of paid accrued sick leave to spend time with children who are newly added to their families: the same amount of Compensated Parental Leave time allowed to parents who adopt children.
Mr. Johnson believes that, as to issues of liability there are no genuinely disputed facts. (The issue of damages is subject to evidence that must be placed before the fact finder and is, therefore, not ripe for determination on a Motion for Summary Judgment.) Both he and Defendants filed cross Motions for Summary Judgment.
The District Court denied all of Mr. Johnson’s claims, granting summary judgment to Defendants on all claims. Mr. Johnson now appeals that Order.
On appeal, Mr. Johnson seeks all appropriate Orders: reversing the District Court’s Order granting Defendants’ Motion for Summary Judgment; granting Mr. Johnson’s Motion for Partial Summary Judgment as to the issues of liability; and remanding the matter for further proceedings consistent with these determinations.
ARGUMENT AND APPLICABLE STANDARDS OF REVIEW
WHETHER THE FEDERAL DISTRICT COURT ERRED IN GRANTING DEFENDANTS-APPELLEES SUMMARY JUDGMENT ON ALL CLAIMS MADE BY PLAINTIFF-APPELLANT DAVID A. JOHNSON UNDER
THE LAWS AND CONSTITUTIONS OF THE UNITED STATES AND THE STATE OF IOWA?
I. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT TO DEFENDANTS-APPELLEES BECAUSE, UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED, THE UNIVERSITY OF
IOWA’S PARENTAL LEAVE POLICY, BOTH FACIALLY AND AS APPLIED TO MR. JOHNSON AND TO SIMILARLY SITUATED BIOLOGICAL FATHERS, UNLAWFULLY DISCRIMINATES ON THE BASES OF
“GENDER-PLUS” OR “SEX-PLUS” PARENTING STATUS AND GENDER STEREOTYPING.
STANDARD OF REVIEW:
The Court of Appeals’ standard of review in reviewing summary judgment motions is de novo. Carter v. St. Louis University, 167 F.3d 398, 400 (8th Cir. 1999). The evidence must be viewed in the light most favorable to Mr. Johnson, the non-moving party, Scusa v. Nestle U.S.A. Co., 181 F.3d 958, 964 (8th Cir. 1999), giving him the benefit of all reasonable inferences that can be drawn from the facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, (1986). Summary judgment is appropriate only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).
14

David A. JOHNSON, on his own behalf and on behalf of..., 2005 WL 5628994...
ARGUMENT:
Section 703(a) of the Civil Rights Act of 1964, as amended at 42 U. S. C. § 2000e-2(a) (Title VII), “prohibits sex-based classifications in terms and conditions of employment, in hiring and discharging decisions, and in other employment decisions that adversely affect an employee’s status.” Int’l Union, United Auto Workers. v. Johnson Controls, 499 U.S. 187, 197-200 (1991).
A. The Policy Violates Title VII, Facially And As Applied, Because It Unlawfully Discriminates On The Basis Of Mr. Johnson’s “Gender - Plus” Or “Sex-Plus” Status As A Male Who Is A Biological Father.
One recognized theory of employment discrimination liability utilized by the Courts charged with determining the legality of leave policies which are alleged to discriminate between different subgroups of men and women under Title VII is termed “gender-plus” or “sex-plus.” The theory refers to a policy or practice under which an employer is not alleged to have discriminated against the class of men or women as a whole but, rather, has treated “differently a subclass of men or women” by distinguishing employees on the basis of sex (gender) plus another characteristic. 1 BARBARA LINDEMANN & PAUL GROSSMAN, EMPLOYMENT DISCRIMINATION LAW 456 (3rd ed. 1996).
The “gender-plus” theory describes the conduct that gives rise to the present litigation: that male employees (the “gender” part of the theory) of the University of Iowa who are biological fathers (the “plus” part of the theory) are denied the use of an employment benefit that is allowed to all other parents-the right to use accrued paid sick leave for the purpose of having time off to spend with children who are newly added to their families.
Under the “gender-plus” discrimination theory an employer need not discriminate against all members of a gender in order for its different treatment of subclasses of men and women to be unlawful. See: Phillips v. Martin Marietta Corp., 400 U.S. 542, 544 (1971) (Upholding a sex discrimination challenge to an employer policy which singled out a particular sub-class of women--women with pre-school aged children-for adverse treatment).
The United States Supreme Court described the usefulness of the “gender-plus” approach, in appropriate Title VII cases: “[The law] does not permit the victim of a facially discriminatory policy to be told that he has not been wronged because other persons of his or her race or sex were hired.” This is because, “Congress never intended to give an employer license to discriminate against some employees on the basis of ... sex merely because he favorably treats other members of the employees’ group.” Connecticut v. Teal, 457 U.S. 440, 455 (1982).
In Shafer v. Board of Public Education of the School Dist. of Pittsburgh, 903 F.2d 243 (3rd Cir. 1990), the Pittsburg Board of Education was found to have violated Title VII when enforcing terms of a collective bargaining agreement that had allowed female employees to take paid leave under certain specified conditions related to “childbearing” and “childrearing.” Such leave was granted either for: “1) a period of sick leave combined with an unpaid leave for childbearing or childrearing for a maximum of one year,” or, for, “2) maternity leave not exceeding one year.” In neither instance was the showing of a disability related to pregnancy required in order for a female employee to obtain leave. A Title VII challenge arose when the Board of Education denied a three-month unpaid leave request made by a male employee who, under the policy, intended to care for his son. Upholding the male teacher’s “sex-plus” challenge, the Court held, as a matter of law, that the leave policy violated Title VII insofar as the policy was not exclusively for the purpose of allowing women to recover from the birthing process, but, rather, was explicitly for childrearing or childbearing, insofar as it did not impose a requirement that the “female be disabled in order to obtain the unpaid leave.” Such a policy discriminated against males who had child care responsibilities on the basis of sex and was, therefore, “per se void for any leave granted beyond the period of actual physical disability on account of pregnancy, childbirth or related conditions.” Id., at 248.
1. Mr. Johnson was denied use of employment due to his “gender-plus” or “sex-plus” status: a male who is a biological father.
Mr. Johnson has offered direct and uncontroverted evidence that the University, as a matter of policy and practice,
15

David A. JOHNSON, on his own behalf and on behalf of..., 2005 WL 5628994...
discriminated against him, in his capacity as a biological father. The stated Purpose of the University’s Parental Leave Policy is to provide all parents who have care giving responsibilities to have time off to spend with a child newly added to the family and, to the extent allowed by law, to have the leave on a paid basis.
There is no state law in Iowa precluding a parent from being paid during such leave. And, at the time of his request, Mr. Johnson had banked a sufficient number of accrued paid sick leave hours to cover the duration of his requested paid Parental Leave time. Therefore, under the express terms of Operations Manual, Section 22.8, Mr. Johnson, upon the birth of his daughter, like Mr. Shafer in Pittsburg, should have been allowed to utilize at least some amount of his accrued paid sick leave for the purpose of caring for and bonding with his newborn child. He proposes that the amount of accrued paid sick leave that should have been allowed for this use is not less than the amount of time allowed by the University to all adoptive parents at the time of the arrival of their new children: forty hours.

2. The pattern of discrimination.
Notwithstanding the express language of the Policy, Defendants have purposefully excluded Mr. Johnson, and other similarly-situated males, from access to earned and accrued paid sick leave benefits for Parental Leave solely on the basis of their gender, plus their status as biological father. The same benefit is without dispute, offered to all other parents who are not biological fathers, including biological mothers and adoptive fathers and mothers. Diagramically, the limited reach and the unlawful limits of the University’s Parental Leave Policy may be illustrated as follows:

Parental Use of Accrued Paid Sick Leave to be With a New Child

Biological Parents

Adoptive Parents

FEMALE EMPLOYEES

YES

YES

MALE EMPLOYEES

NO

YES

As interpreted and applied by University of Iowa administrators, the Policy is not neutral; the practices do not merely have a discriminatory effect on male employees. It classifies persons on the basis of gender and reproductive capacity, and uses that classification scheme as a basis of denying one classification of parent certain benefits of employment allowed to other classifications. It is therefore, under Title VII, directly discriminatory. Abraham v. Graphic Arts International Union, 660 F.2d 811, 819 (D.C.C. 1981) (“An employer can incur a Title VII violation as much by lack of an adequate leave policy as by unequal application of a policy it does have. Title VII outlaws employment discrimination traceable to an employee’s gender, and it takes little imagination to see an omission may in particular circumstances be as invidious as positive action.”)
3. The discrimination is intentional even if defendants demonstrate no ill-will.
Even if it could be said that the University lacked ill-will or animus towards Mr. Johnson, specifically, or towards biological fathers, as a category of parents, such a fact would not excuse excluding such persons from receiving employment benefits simply based upon their reproductive capacity. In a case involving a challenged variation in workplace rules based on employees’ reproductive capacity, the United States Supreme Court, in Int’l Union, United Auto v. Johnson Controls, 499 U.S. 187, 199 (1991), ruled that the offending policy was not neutral because it did not apply to the reproductive capacity of the company’s male employees in the same way as it applied to that of female employees. In such instances, the motivation for the discriminatory policy is irrelevant to a Title VII analysis:
16

David A. JOHNSON, on his own behalf and on behalf of..., 2005 WL 5628994...
[T]he absence of a malevolent motive does not convert a facially discriminatory policy into a neutral policy with a discriminatory effect. Whether an employment practice involves disparate treatment through explicit facial discrimination does not depend on why the employer discriminates but rather on the explicit terms of the discrimination.
Id., at 199-200.
The facts giving rise to Mr. Johnson’s dilemma are strikingly analogous to those cases in which employers have been precluded, as a matter of law, from implementing policies whose explicit terms and application result in disparate gender-based discrimination. The Operations Manual, Section 22.8, provides that the leave allowances permitted under it are for the purpose of assisting parents in their childrearing capacities. The Policy is not limited to pregnancy related disability. In fact, the provision defining the terms of leave for biological mothers under this Policy does not require any showing of continuing disability, nor does it require the more administratively feasible demonstration of a woman’s fitness to return to work prior to any “disability” allowance. The Policy, by its own terms, is, instead, for the explicit and primary purpose of providing accrued paid leave to parents with care giving responsibilities for their newly arrived children.
It cannot be genuinely disputed that biological fathers are parents. It is not contested, in this instance, that Mr. Johnson, upon the birth of his daughter, had care-giving responsibilities related to that child. Nor can it reasonably be disputed that the Parental Leave Policy, grants women-mothers such as, for example, Ms. Jennie L. Embree--who require less than the six weeks to recover from the births of their children the use of accrued paid sick leave for the purpose of caring for their newborn infants upon the conclusion of any presumptive disability periods. (Aplt. A. 101-107). Clearly, the Policy provides Parental Leave for biological mothers, leave that is not limited to, but, is in addition to, any period of disability due to the birth process. In doing so, the policy discriminates against biological fathers who are similarly situated in terms of their care-giving responsibilities as parents.
In sum, the University of Iowa’s Parental Leave Policy “does not pass the simple test of whether the evidence shows ‘treatment of a person in a manner which but for that person’s sex would be different.’ ” Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702, 711 (1978) (quoting Developments in the Law, Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv. L. Rev. 1109, 1170 (1971)). The University of Iowa’s Parental Leave Policy, as applied to biological fathers, constitutes sex discrimination and, as such, is forbidden under Title VII of the Civil Rights Act of 1964, as amended.
B. The Policy violates Title VII, facially and as applied, because it Unlawfully Discriminates on the Basis of Overbroad Gender Stereotypes.
Under Title VII, gender-based distinctions that are rooted in “overbroad generalizations about the different talents, capacities, or preferences of males and females” will not suffice to withstand a challenge. Knussman v. Maryland, 272 F.3d 625, 636-37 (4th Cir. 2001). Under the Parental Leave Policy’s unambiguous classification scheme, biological mothers, but not biological fathers, may use accrued paid sick leave for the purpose of caring for newborn children. By excluding biological fathers, only, from benefits intended to assist employees in a parenting role, the Policy perpetuates overbroad generalizations about the talents, capacities and preferences of men-and women-in family life. Classifications “that appear to rest on nothing more than conventional notions about the proper station in society for males and females have been declared invalid time and again by the Supreme Court.” Id., at 636-37; See also: Orr v. Orr, 440 U.S. 268, 283 (1979) (“Legislative classifications which distribute benefits and burdens on the basis of gender carry the inherent risk of reinforcing stereotypes.”).
1. The policy violates Title VII because, in effect, it relegates males and females to traditional sex-based stereotypes.
By relegating, in effect, biological mothers to the role of sole or primary caretaker of their newborns, by allowing biological mothers, but not biological fathers, access to the use of accrued paid sick leave, the Policy risks reinforcing traditional gender roles. Such a practice inescapably rests upon “conventional notions” about men and women that no longer provide an
17

David A. JOHNSON, on his own behalf and on behalf of..., 2005 WL 5628994...
acceptable legal basis for differential employment rights in our society.
Historically, arguably, because most employers, like the University of Iowa, have not provided paid leave to fathers for childrearing purposes, and because most families cannot afford to take unpaid leave for any extended period, mothers, the class granted paid leave, in many instances become the de facto primary caretakers of children and have used their leave from employment to fulfill this critical role. Two “presumptions” are inherent in the University’s implementation of the subsection of the Parental Leave Policy that allows use of accrued paid sick leave to biological mothers, but not to biological fathers: first, that all women are universally disabled for a period of six weeks following birth; and, second, that a woman who gives birth is, and should be, the sole or primary care taker of a child immediately following birth and during the first days of a child’s development. These presumptions interrupt and interfere with the ordered and balanced choices of biological parents of a child who might, for example, otherwise choose nontraditional parenting roles that would allow biological mothers the opportunity more fully to participate in the workplace and biological fathers the opportunity to bond more extensively and to provide greater care for their children during the early days and weeks of their newborn’s lives.
2. Tipping the scale.
By favoring the parenting role of women who are biological mothers over the parenting role of men who are biological fathers, by, in effect, placing the thumb of the State on the balance of parental choices, the University’s Parental Leave Policy reinforces debilitating stereotypes and interferes with the fundamental right of a parent to care for and enjoy the companionship of his child, in contravention of the intent of Title VII.
The United States Supreme Court, in Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721 (2003), a recent case underscoring the need for the corrective requirements of the Family and Medical Leave Act, criticized the types of stereotypes that underlie the unequal provision of family care leave often allowed to men and women by their employers. Describing the need for the FMLA, Mr. Chief Justice Rehnquist opined:
Stereotypes about women’s domestic roles are reinforced by parallel stereotypes presuming a lack of domestic responsibilities for men. Because employers continued to regard the family as the woman’s domain, they often denied men similar accommodations or discouraged them from taking leave. These mutually reinforcing stereotypes created a self-fulfilling cycle of discrimination that forced women to continue to assume the role of primary family caregiver, and fostered employers’ stereotypical views about women’s commitment to work and their value as employees. Those perceptions, in turn, Congress reasoned, lead to subtle discrimination that may be difficult to detect on a case-by-case basis.
Id. at 736.
As a matter of law, men and women may not be treated differently simply because of presumptions about the respective roles they play in family life. Weinberger v. Wiesenfeld, 420 U.S. 636 (1975). The University of Iowa’s Parental Leave Policy, by excluding biological fathers from a benefit conferred for the sole purpose of taking on a caretaking role as a parent, does just that.
C. The District Court Re-Constructs an Unlawful Policy
In response to Mr. Johnson’s challenge to it, the District Court appears to misunderstand entirely and, therefore, in effect, judicially to reconstruct the purpose and operation of the University’s Parental Leave Policy. The Operations Manual sets forth no separate provision for pregnancy disability for biological mothers. Rather, the Policy provides parental as well as disability leave for biological mothers. And the Court need not rely upon Mr. Johnson’s word alone or upon his interpretation of the Policy to come to that conclusion. The University’s own published materials resolve any purported ambiguities with the following explanation: “[Parental] leave is for the biological mother to recover from childbirth and to spend time with the
18

David A. JOHNSON, on his own behalf and on behalf of..., 2005 WL 5628994...
newborn child or for either or both parents to spend time with a newly adopted child.” (Aplt. A. 331-332).
1. The District Court recasts the Parental Leave benefit as a disability benefit.
The District Court’s apparent view that biological mothers receive post-partum disability leave, only, and not paid Parental Leave, under Section 22.8 of the Operations Manual, is not based on the Policy language and is contradicted by the very facts placed into the evidence of this case. That biological mothers may use accrued paid sick leave to take time off to spend with children newly added to their families is affirmed by Defendants’ own sworn deposition testimony. (Aplt. A. 119-120, 125). That is why Mr. Johnson’s spouse, Ms. Jennie Embree, pursuant to the Policy’s language, in consultation with, and with her employer’s express permission, upon the birth of her child, took both paid disability and paid Parental Leave, drawing on her accrued paid sick leave in each instance to do so. (Aplt. A.106).
2. As reconstructed by the District Court no parent gets Parental Leave under the Parental Leave Policy
The District Court’s ruling, in effect, is premised on an interpretation of the Parental Leave Policy under which the Policy does not mean what the Policy explicitly says it means: that, there really is no such thing as paid leave for the purpose of permitting “parents with care giving responsibilities time off to care for a child newly added to the family.” (Aplt. A. 241, 331-332).
If the Parental Leave Policy is correctly interpreted by the District Court-that is, if the Policy, as applied to biological parents, is really a pregnancy disability policy, only--then the Policy’s caption, its stated purpose and the terms and conditions describing Parental Leave are meaningless as to any biological parent. No biological parent, the District Court infers, is entitled to receive Parental Leave.2 Further, if the District Court’s interpretation of the Policy is accurate, then we must presume that the University’s own administrators do not know how to implement the institution’s own Policy. For they, under oath, invariably described a variety of parents (except biological fathers) who are eligible to receive Parental Leave benefits under the Policy. (Aplt. A. 119-122).
The fulcrum of what the Court accurately describes as its “cursory analysis,” consists of two assumptions: first, that, under the Policy, a biological mother is allowed disability leave, only: and, second, and that, by contrast, adoptive parents’ leave, is for “wholly caregiving” purposes. Based on those dual assumptions, the District Court concludes that Mr. Johnson’s Title VII claim must fail insofar as he, as a biological father, fits into neither group: Under sections 22.8(b)(1)(a) and 22.8(b)(1)(b) of the policy, biological mothers do not receive the same amount or type of leave as adoptive parents. The policy characterizes the leave provided mothers as “pregnancy disability leave.” The University allows any amount of this leave to be charged against accrued sick leave, but requires medical documentation for leave exceeding six weeks. The policy characterizes the leave provided adoptive parents as “adoption leave,” and adoptive parents can only charge up to five days against accrued sick leave.
Adoptive parents are entitled to five days of leave, while biological mothers are entitled to six weeks leave without documentation and unlimited leave with documentation of extended pregnancy disability. By definition, neither adoptive parent has a disability resulting from pregnancy, while leave provided biological mothers is pursuant to pregnancy disability. On the face of the policy, adoptive leave is wholly caregiving leave, while pregnancy leave is disability leave.
(Aplt. A. 20-21).
3. The District Court fails to compare Mr. Johnson, in his capacity as a biological parent, to other similarly situated parents.
Although Mr. Johnson advances his claim in his capacity as a care giving biological parent, to the District Court, “[I]t does not make sense” to compare him, as a biological father, to the group of “biological mothers and adoptive parents” because adoptive parents receive different leaves than biological mothers, quantitatively and qualitatively. “Biological fathers will be
19

David A. JOHNSON, on his own behalf and on behalf of..., 2005 WL 5628994...
compared separately to biological mothers and separately to adoptive parents.” (Aplt. A. 20-21). However, rather than to compare biological fathers, such as Mr. Johnson, to biological mothers or adoptive parents (of either gender) in their respective capacities as parents, the District Court found that the comparison must be made on another basis:
With respect to adoptive parents, biological fathers are not discriminated against based on sex. Both male and female adoptive parents receive five days of adoption leave, and thus, adoption leave is granted on the basis of adoptive parent status, not sex. Therefore, there is no Title VII violation as to the Parental Leave policy granting adoption leave.
(Aplt. A. 21)
It is suprising, that in a challenge to a Parental Leave Policy the challenging parent is not compared to any other persons in their respective roles as parents.
4. The Parental Leave Policy violates the EEOC guidelines.
The EEOC has developed rather precise guidelines relating specifically to the unequal division of Parental Leave. According to this Federal agency’s rules, Defendants’ Parental Leave Policy, in granting leave to biological mothers, but not biological fathers, without a showing of maternal disability, is precisely the type of rule considered violative of the letter and spirit of Title VII. (Aplt. A. 340-236). The University’s Parental Leave Policy, by its own terms, does not require a showing of pregnancy-related disability in order for a biological mother to take Parental Leave. (Aplt. A. 233-243). Furthermore, the Policy does not limit the leave taken by biological mothers to a medically documented disability, while at the same time its provisions do provide paid leave to biological mothers to spend time with their newborn children. (Aplt. A. 331-332).
The fact that the Parental Leave Policy also provides leave opportunities for temporary pregnancy disability does not alter the fact that leave for parenting a new, healthy child is available to women pursuant to the same Policy and that such Parental Leaves are utilized by women such as Ms. Embree pursuant to the policy’s express provisions. (Aplt. A. 106, 124-125).
Defendants have chosen to provide Parental Leave benefits in a manner that, according to the EEOC’s guidelines, facially, and as applied, violates the letter and frustrates the purpose of Title VII. The University was in a position to know of the offending Policy, to be aware of its intentionally exclusionary implementation, and to know of the direct harm caused to Mr. Johnson’s legal interests--and to those biological fathers who are similarly situated. No possible bona fide occupational qualification defense is available to justify such discrimination, and none has been offered by Defendants. See TWA v. Thurston, 469 U.S. 111, 121 (1985); Int’l Union, United Auto v. Johnson Controls, 499 U.S. 187 (1991).
II. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT TO DEFENDANTS-APPELLEES BECAUSE UNDER THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION, THE UNIVERSITY OF IOWA’S PARENTAL LEAVE POLICY, BOTH
FACIALLY AND AS APPLIED TO MR. JOHNSON AND TO SIMILARLY SITUATED BIOLOGICAL FATHERS, UNLAWFULLY DISCRIMINATES ON THE BASES OF “GENDER-PLUS OR “SEX-PLUS PARENTING STATUS AND GENDER STEREOTYPING.
STANDARD OF REVIEW:
The Court of Appeals’ standard of review in reviewing summary judgment motions is de novo. Carter v. St. Louis University, 167 F.3d 398, 400 (8th Cir. 1999). The evidence must be viewed in the light most favorable to Mr. Johnson, the non-moving party, Scusa v. Nestle U.S.A. Co., 181 F.3d 958, 964 (8th Cir. 1999), giving him the benefit of all reasonable inferences
20

David A. JOHNSON, on his own behalf and on behalf of..., 2005 WL 5628994...
that can be drawn from the facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, (1986). Summary judgment is appropriate only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).
ARGUMENT:
To make out a claim for the violation of Equal Protection on the basis of sex, the plaintiff must prove that he or she suffered purposeful or intentional discrimination on the basis of gender. Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264-65 (1977). Purposeful or intentional discrimination does not require a showing that the discrimination was exclusively on the basis of sex, however.
A. The Parental Leave Policy Violates The Equal Protection Clause, Facially and As Applied Because is Unlawfully Discriminates On The Basis of Mr. Johnson’s “Gender-Plus” or “Sex-Plus” Status as a Male Who is a Biological Father.
To be actionable under a “gender-plus” or “sex-plus” theory of discrimination, the relevant Equal Protection concern is whether the plaintiff provides evidence of purposefully sex-discriminatory acts.” Back v. Hastings on Hudson Union Free School District, 365 F.3d 107, 118-119 (2nd Cir. 2004) (“The term “gender-plus” or “sex-plus” is simply a heuristic. It is, in other words, a judicial convenience to affirm that a plaintiff can, under certain circumstances, survive summary judgment even when not all members of a disfavored class are discriminated against.”). The Equal Protection Clause “forbids sex discrimination no matter how it is labeled.” Id., at 118; See Also, e.g., Weinberger v. Wiesenfeld, 420 U.S. 636, 43 L. Ed. 2d 514, 95 S. Ct. 1225 (1975) (holding that a statute treating widowers less favorably than widows violates the Equal Protection Clause).
In the present instance, the “sex-plus” characteristic involves the University of Iowa’s impingement of Mr. Johnson’s fundamental right, in his capacity as a biological parent, to care for his child, to maintain and develop a relationship with his child, and to enjoy the companionship of his child. Accordingly, the District Court, below, should have employed heightened scrutiny, to the University’s Parental Leave Policy and, thereby, committed legal error when it failed to do so.
1. The Parent-Child Bond as a Fundamental Right
It is well established in Federal law that the right to maintain and develop a parent-child relationship is a fundamental liberty interest that is protected against unwarranted state impediment or intrusion in the workplace. See: Joan C. Williams & Nancy Segal, Comment, Beyond the Maternal Wall: Relief for Family Caregivers Who Are Discriminated Against on the Job, 26 HARV. WOMEN’S L. J. 77 (2003), and cases cited therein.
More specifically, Courts addressing the issue recognize that a fundamental right may be implicated by matters involving the allowance of leave to care for and bond with children. In such instances, “[b]ecause individuals have a due process right to be free from undue interference with their procreation, sexuality, and family, ... a strict level of scrutiny must be applied to any State action that discriminates on the basis of childbearing or family care.” Back, at 107, 118, n6 (2nd Cir. 2004).
Clearly, a State agency’s interference with a parent’s bonding with and caring for a child implicates a fundamental right. Mr. Johnson has alleged that the University of Iowa’s Parental Leave Policy created an obstacle to the maintenance and development of his own parent-child relationship by denying him, in his capacity as a biological father of a newborn child, the use of any of his accrued paid sick leave to spend time with his infant daughter and to provide care giving responsibilities to her-a benefit of employment granted to all other parents, who are not biological fathers, and who are subject to the same Policy.
21

David A. JOHNSON, on his own behalf and on behalf of..., 2005 WL 5628994...
B. The Parental Leave Policy Violates Constitutional Guarantees of Equal Protection Because it Discriminates on the Basis of Gender and This Discrimination is Not Substantially Related to the Achievement of An Important Governmental Objective.
1. Threshold Standards under Equal Protection Analysis
The Equal Protection Clause of the Fourteenth Amendment generally prohibits State and local governments from treating similarly situated persons differently. This principal is applied to policies that confer or withhold benefits of employment. “A benefit that is part and parcel of the employment relationship may not be doled out in a discriminatory fashion, even if the employer would be free ... not to provide the benefit at all.” Hishon v. King & Spalding, 467 U.S. 69, 75 (1984). When a fundamental right or suspect classification is implicated in providing or withholding a benefit, heightened scrutiny of the adverse action is required. Id., at 75.
Individuals have a clear right, protected by the Fourteenth Amendment, to be free from discrimination on the basis of sex in public employment. Davis v. Passman, 442 U.S. 228, 234-35 (1979). Gender-based distinctions “must serve important governmental objectives and must be substantially related to achievement of those objectives” in order to withstand judicial scrutiny under the Equal Protection Clause.” Caban v. Mohammed, 441 U.S. 380, 388 (1979).
Once proven, “[d]iscrimination based on gender ... can only be tolerated if the State provides an ‘exceedingly persuasive justification’ for the rule or practice.” Back, 365 F.3d at 118; see also United States v. Virginia, 518 U.S. 515, 524 (1996). A challenge to a facially discriminatory policy based on “sex-plus” parental status, such as the University’s Parental Leave Policy, or one that has been shown to have had a disparate impact on fundamental interest, requires the reviewing Court to utilize a heightened scrutiny analysis. Craig v. Boren, 429 U.S. 190, 197 (1976). Such scrutiny is required because “[a] classification relying explicitly upon gender peculiarly suggests that the State is pursuing an improper purpose, one that furthers or contains ‘fixed notions concerning the roles and abilities of males and females.’ ” Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 725 (1982). While, generally, Equal Protection analysis requires that the Fourteenth Amendment be applied only to groups that are similarly situated, “[e]nding the inquiry at this point...is unwarranted if there are other indications of gender-disparate treatment or invidious and intentional discrimination.” Id., at 725.
In the Eighth Circuit, in Equal Protection cases, even when the District Court finds that comparison groups are not similarly situated, the fact finder must proceed to consider whether differential treatment has a rational relationship to a legitimate state interest. Bills v. Dahm, 32 F.3d 333, 336 (8th Cir. 1994). In such instances, Equal Protection claims must be reviewed to ensure that there had been no invidious discrimination based upon an intent to discriminate. Ricketts v. City of Columbia, 36 F.3d 775, 781 (8th Cir. 1994).
A contested policy is not rendered neutral because it confers benefits to some males, nor even because biological fathers may be found not to be similarly situated to other groups. Ultimately, in determining whether an employee has been discriminated against in violation of the law because of such individual’s gender, our Federal Appellate courts have consistently emphasized that the ultimate issue concerns “the reasons for the individual plaintiff’s treatment, not the relative treatment of different groups within the workplace. As a result, discrimination against one employee cannot be cured, or disproven, solely by favorable, or equitable, treatment of other employees of the same race or sex.” Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001).
2. Heightened Scrutiny
The challenged Parental Leave Policy, on its face, has been established for the following purpose: “To permit parents who have caregiving responsibilities to have time off to spend with a child newly added to the family.” (Aplt. A. 178). The parties do not dispute that Mr. Johnson, and similarly-situated biological fathers who are employees of the University, are parents with caregiving responsibilities. Yet, as the Policy is implemented by the University, biological fathers are precluded from using any paid accrued sick leave to care for their newborn children. All other parents, including adoptive parents and biological mothers, are allowed to draw on their “banked” accrued sick leave for Parental Leave if they so-desire.
22

David A. JOHNSON, on his own behalf and on behalf of..., 2005 WL 5628994...
Mr. Johnson was not permitted under the Policy to utilize any of his accrued paid sick leave for the purpose of caring for his newborn child even though it is not disputed that Mr. Johnson: was a parent who had care giving responsibilities; wanted to have time off to spend with his newborn daughter; and had accrued adequate paid sick leave to cover the Parental Leave period that is at issue (five work days, or forty hours).
Defendants’ intent to exclude Mr. Johnson and similarly-situated biological fathers from the Parental Leave benefit cannot survive heightened scrutiny-absolutely nothing implicating any important governmental objectives is involved here nor has any evidence been presented by Defendants demonstrating that the Policy was in any fashion “substantially related to achievement of those objectives.”
C. The District Court’s Determination That The Parental Leave Policy Should Be Subjected To A Rational Basis Test-And Not To Heightened Scrutiny--Constitutes Error At Law. However, Even If This Court Were To Agree That
The Policy Should Be Subjected To A Rational Basis Test, The Policy Violates Constitutional Guarantees Of Equal Protection Under The Fourteenth Amendment Because The Exclusion Of Biological Fathers As A Category Of
Persons From The Use Of Paid Accrued Sick Leave For Childrearing, A Benefit Conferred Upon All Others Similarly Situated Employees, Is Arbitrary, Capricious And Not Rationally Related To Any Governmental Purpose.
1. The Rational Basis Test
At the very least, a government’s classification must be rationally related to a legitimate government interest in order to be constitutional. Riddle v. Mondragon, 83 F.3d 1197, 1207 (10th Cir. 1996). The Equal Protection Clause requires State actors, at the very minimum, to treat similarly situated persons in a substantially equivalent manner. F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920).
In applying the rational-basis standard the Eighth Circuit Court of Appeals recognizes what appears to be a substantive due process right to be free from what the Court has called “truly irrational” action. Chesterfield Dev. Corp. v. City of Chesterfield, 963 F.2d 1102, 1104 (8th Cir. 1992). For example, this Court, relying upon the Supreme Court’s guidance in
Harrah Independent School District v. Martin, 440 U.S. 194 (1979), has described a constitutionally-based protection from “arbitrary and capricious” deprivations of contractual rights that impinge upon liberty interests in a public employment context.” Moore v. Warwick Public School Dist. No. 29, 794 F.2d 322, 329 (8th Cir. 1986). While it is the burden of the plaintiff challenging the rule or regulation to show that there is no rational connection between the State agency’s action and its stated interest, it also necessary that the stated interest be legitimate and the regulation reasonable. Id., at 329. The stated goal, or purpose of the Parental Leave Policy is:
To provide all parents who have care giving responsibilities to have time off to spend with a child newly added to the family and, to the extent allowed by law, to have the leave on a paid basis.
(Aplt. A. 105, 289, 295-296).
Mr. Johnson believes that the District Court’s adoption of a “rational basis” analysis is misplaced, given the nature of the rights affected. However, even if one were to assume, for the purpose of argument, that a rational basis, limited-scrutiny approach is appropriate, it is not a legitimate for the State in achieving the goal of a policy to target for dissimilar treatment one group of parents who are, in all relevant aspects, similarly situated to all other groups of parents. Further, the means chosen to realize the goal in this particular instance to exclude biological fathers from the benefit of the Policy are too attenuated to withstand even the lowest threshold of a rational basis review.
The ultimate validity of the challenged Policy under rational basis review may be challenged by this query: Is the purported purpose of the Policy furthered in any objectively reasonable way by the classification scheme adopted which resulted in the
23

David A. JOHNSON, on his own behalf and on behalf of..., 2005 WL 5628994...
exclusion of biological fathers from the Policy’s ambit? The undeniable answer to this question, in this instance, is “no.” The State “may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 446 (1985).

2. “Gender-Plus” and “Sex-Plus” Revisited.
In order to establish that biological fathers are, in fact, a protected class for Equal Protection analysis Mr. Johnson need not prove that all men are excluded from a benefit. Rather he need only demonstrate that biological fathers, as a subclass of men,
are treated unfavorably as compared to a corresponding subclass of women. See Coleman v. B-G Maintenance Management of Colorado, Inc., 108 F.3d 1199, 1204 (10th Cir. 1997) The subclass corresponding to the biological fathers subclass are biological mothers. Biological parenthood, is common to both subclasses. Biological mothers (for example, Ms. Jennie C. Embree) are eligible to apply accrued paid sick leave to Parental Leave. Biological fathers (for example Mr. Johnson) are not. Clearly, “but for” Mr. Johnson’s gender, he would have received benefits under the Policy. The Policy is, therefore, gender-based and facially discriminatory. Lex K. Larson, EMPLOYMENT DISCRIMINATION, § 40.04, at 40-12 (2nd ed. 1996).
The bottom line is this allowing biological mothers to use accrued paid sick leave for Parental Leave, thereby assisting them to care for and be with children, while denying biological fathers the same or comparable use of the same accrued paid sick so that fathers, too, can assist in the care of children, constitutes a differentiation that bears no relation to any important State interest. Mr. Johnson contends that a Policy and practice so-conceived reinforces and promotes the age-old notion that a mother bears a closer relationship with her child than a father. A father’s ability to stay home from his job; enables mothers to remain there.
Clearly, the classification scheme adopted by the University serves no “important governmental objectives” and the discriminatory means employed by it, in the Policy are not “substantially related” to the achievement of any stated objectives.
United States v. Virginia, 518 U.S. 515, 533 (1996) (quoting Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982)). No legitimate public purpose exists for such a differentiation.

III. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT TO DEFENDANTS-APPELLEES BECAUSE THE PARENTAL LEAVE POLICY VIOLATES THE IOWA CIVIL RIGHTS ACT, IOWA CODE §
216.6(1) (2003)
STANDARD OF REVIEW:
The Court of Appeals’ standard of review in reviewing summary judgment motions is de novo. Carter v. St. Louis University, 167 F.3d 398, 400 (8th Cir. 1999). The evidence must be viewed in the light most favorable to Mr. Johnson, the non-moving party, Scusa v. Nestle U.S.A. Co., 181 F.3d 958, 964 (8th Cir. 1999), giving him the benefit of all reasonable inferences that can be drawn from the facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, (1986). Summary judgment is appropriate only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

ARGUMENT:

Iowa Courts, in considering a plaintiff’s discrimination claims brought pursuant to Federal law and comparable State-law

claims, generally make no distinction between them.

Inglis v. Buena Vista Univ., 235 F. Supp. 2d 1009.119 (N.D.

Iowa 2002). This perspective results from the Iowa Supreme Court’s recognition that Federal precedent is applicable to

discrimination claims under the Iowa Civil Rights Act (ICRA) pursuant to Iowa Code Chapter 216. See Vivian v. Madison, 601 N.W.2d 872, 873 (Iowa 1999) (“The ICRA was modeled after Title VII of the United States Civil Rights

24

David A. JOHNSON, on his own behalf and on behalf of..., 2005 WL 5628994...
Act.”); cf. Fuller v. Iowa Dep’t of Human Servs., 576 N.W.2d 324, 329 (Iowa 1998) (recognizing that the ICRA’s prohibition on disability discrimination is the State-law “counterpart” to the ADA, and that, “in considering a disability discrimination claim brought under Iowa Code chapter 216, we look to the ADA and cases interpreting its language. We also consider the underlying Federal regulations established by the Equal Employment Opportunity Commission (hereinafter ‘EEOC’), the agency responsible for enforcing the ADA.”) (internal citations omitted). Iowa courts, therefore, have traditionally turned to Federal law for guidance in evaluating the ICRA. King v. Iowa Civil Rights Comm’n, 334 N.W.2d 598, 601 (Iowa 1983).
Given this parallel analysis used by the Iowa Supreme Court in Iowa Civil Rights cases Mr. Johnson repeats his argument set forth in Part I of his Argument as if fully set forth herein.
IV. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT TO DEFENDANTS-APPELLEES BECAUSE THE PARENTAL LEAVE POLICY VIOLATES THE EQUAL PROTECTION CLAUSE OF ARTICLE
1, SECTION 6 OF THE IOWA CONSTITUTION
STANDARD OF REVIEW:
The Court of Appeals’ standard of review in reviewing summary judgment motions is de novo. Carter v. St. Louis University, 167 F.3d 398, 400 (8th Cir. 1999). The evidence must be viewed in the light most favorable to Mr. Johnson, the non-moving party, Scusa v. Nestle U.S.A. Co., 181 F.3d 958, 964 (8th Cir. 1999), giving him the benefit of all reasonable inferences that can be drawn from the facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, (1986). Summary judgment is appropriate only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).
ARGUMENT:
Unlike the Iowa Supreme Court’s analysis of ICRA which closely parallels Federal interpretation of Title VII, it is clear that in recent years the Iowa Supreme Court interpretation of the Equal Protection Clause of Iowa’s Constitution provides stronger protection for civil rights than, in many instances are recognized under the Equal Protection Clause of the United States Constitution. The Equal Protection Clause of the Iowa Constitution appears as follows:
All laws of a general nature shall have a uniform operation; the general assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens.
Iowa Const. Art. I, Section 6.
In 2004, the Iowa Supreme Court explained the nature and scope of Equal Protection analysis under the Iowa Constitution, in Racing Association of Central Iowa v. Fitzgerald, 675 N.W.2d 1 (Iowa 2004) (Fitzgerald II). There, the State’s highest
Appellate Court indicated that even though it independently applied Federal principles in its analysis of Equal Protection under the Iowa State Constitution, Federal decisions are considered persuasive, but “not binding” in the Court’s consideration of claims based on the Iowa Constitution: Independent application ... might result in a dissimilar outcome from that reached by the Supreme Court in considering the Federal constitutional claim. This result is particularly possible in view of the “the ill-defined parameters of the equal protection clause.
Id., at 6.
Iowa’s Equal Protection Clause requires that similarly-situated persons be treated alike. In re Detention of Morrow, 616 25

David A. JOHNSON, on his own behalf and on behalf of..., 2005 WL 5628994...
N.W.2d at 548 (2001). Heightened scrutiny is required of a classification impinging upon a fundamental right or discriminating on the basis of a prohibited classification, such as gender status. Caban v. Mohammed, 441 U.S. 380, 388 (1979) (quoting Craig v Boren, 429 U.S. 190, 197 (1976)).
A. Parental Rights as Fundamental Rights under the Iowa Constitution
The Iowa Supreme Court has repeatedly held, consistent with Federal authority, that “parental rights are fundamental rights” under the Iowa Equal Protection Clause. Santi v. Santi, 633 N.W.2d 312, 317 (Iowa 2001). As such, these liberty interests are “protected against unwarranted State intrusion.” Callender v. Skiles, 591 N.W.2d 182, 190 (Iowa 1999).
When the challenged State action implicates a fundamental right, “the infringement on parental liberty interests... must be ‘narrowly tailored to serve a compelling State interest.’ ” Santi, at 318. In such instances what is commonly known as “strict scrutiny,” is applied, and the Iowa Supreme Court does not presume that State laws or rules are constitutional In re Detention of Williams, 628 N.W.2d 447, 452 (Iowa 2001).
To determine whether a State scheme implicating a fundamental right is consistent with principles of Iowa’s Equal Protection clause, it must be “narrowly tailored to serve a compelling state interest.” J.E.B, at 649-650. In such instance, the Iowa Supreme Court may reject the State’s asserted compelling interest in conserving fiscal resources, finding that such an assertion must be narrowly tailored than that. J.E.B, at 649-651.
University of Iowa employees who are biological fathers and who are subject to the terms and conditions of the Parental Leave Policy are treated by Defendants in a manner unlike all other comparable parents, who are employed by the University of Iowa and Iowa State University, all of whom enjoy the use of accrued paid sick leave-that is, compensated sick leave hours that have already been earned by biological fathers, while in the service of their employer-to have time off to spend with children who are newly added to their families.
1. Independent Review Under Fitzgerald II
The Iowa Supreme Court outlined the substantive parameters of Iowa’s Equal Protection clause, stipulating that Iowa’s state courts must conduct their own independent analyses of the Iowa Constitution, and not be reliant upon analyses made of the Fourteenth Amendment to the United States Constitution, because a more rigorous and expansive standard of review required under the Iowa State Constitution. Under this type of scrutiny classification schemes involving regulations such to taxation, a subject traditionally left to the legislature may pass muster under Federal Equal Protection analysis but fail when tested by Iowa’s own constitutional standard. Fitzgerald at 6-8.
The Iowa Supreme Court’s analysis provides a rule of decision that, if properly applied, should result in a judicial determination that the contested Parental Leave Policy, as applied to biological fathers, is unlawful, under the Constitution of the State of Iowa.
2. Rational Basis Under Fitzgerald II
The Iowa Supreme Court in Fitzgerald II adopted succinct standards to analyze challenged regulatory schemes of State actors. Under it, one looks to Article I, Section 6 of the Iowa Constitution, and inquires “whether the classifications drawn in a statute are reasonable in light of its purpose.” Id. at 7 (citations omitted).
The court indicated that its first inquiry was to determine whether the legislature was required to treat one comparably-placed entity differently from another. In doing so, it outlined guiding principles for its analysis. Policy distinctions require a “plausible policy reason” for the classification such that they serve a “legitimate governmental interest.” Any claimed State interest must be “realistically conceivable.” Once satisfied that the policy reason is realistically conceivable, the Court must then proceed to determine whether the policy justification has a basis in fact. Finally, the Court is required to consider
26

David A. JOHNSON, on his own behalf and on behalf of..., 2005 WL 5628994...
“whether the relationship between the classification ... and the purpose of the classification is so weak that the classification must be viewed as arbitrary.” Id. at 7.
It is clear that it is not enough for the State to assert laudable goals in adopting a particular scheme; the policy reason offered for any classification must be credible. Id. at 7. A reviewing Court is both entitled and required to “probe to determine if the constitutional requirement of some rationality in the nature of the class singled out has been met.” The Iowa Constitution recognizes and upholds a primary principle of equal protection under the law: that “all persons in like situations should stand equal before the law. No favoritism should be tolerated.” Id. at 6-7.
The Fitzgerald II Court noted that any classification involving “extreme degrees of over-inclusion and under-inclusion in relation to any particular goal... cannot be said to reasonably further that goal.” Id. at 10. That is, for a classification scheme to withstand challenge, “the relationship of classification to its goal [cannot] be so attenuated as to render the distinction irrational.” Id. at 11. Any State agency policy-created discrimination must be based upon a “reasonable distinction” that is apparent; otherwise any differential scheme would be necessarily constitutional. Id. at 11. Thus, despite the traditional deference shown by the Court to legislative determinations, the rational basis test under the Iowa Constitution is not a meaningless one. Id. at 6-8. In fact, it is substantially less deferential than standards applied to the same scheme by the United States Supreme Court under the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.
3. Application of the Fitzgerald II Standard of Review
To pass State constitutional muster, even if one were to assume that policies promulgated by the University of Iowa are analogues to Acts of the Iowa General Assembly, the discrimination effectuated by the Parental Leave Policy must be justified by a credible legislative objective and also evidence a relationship between the adopted classification scheme and the legislative objective that “is not so attenuated as to render the distinction arbitrary or irrational.” Nordlinger v. Hahn, 505 U.S. 1, 11 (1992).
The challenged policy is a rule in an employee manual explicitly designed to allow parents with care giving responsibilities time off to be with their children on a paid basis, using accrued sick leave. As such, any ostensible judgment by the University of Iowa, as a State agency, regarding the ends and means chosen, is not dispositive of the issue of the regulation’s validity. Mathews v. De Castro, 429 U.S. 181, 185 (1976); Bierkamp v. Rogers, 293 N.W.2d 577, 581 (Iowa 1980). The classification scheme chosen to further even desirable or laudable stated ends must not be wholly arbitrary or invidiously discriminatory in its means.
Moreover, the University of Iowa is not a legislative body charged with making policy for the citizens of the State of Iowa. It can no more produce legislative findings than it can produce state law. The University of Iowa’s self-serving statements about its own financial status or any other justifications it offers about an inequitable, and in fact, discriminatory, provision of benefits are entitled to no deference by the Court.
Favoritism of one group of parents over another, in their capacity as parents seeking to have time with their newly-arrived children, the result, in this case, of a seemingly inscrutable intra-institutional procedural process, is neither legally justified nor constitutionally permissible. Favoritism appears to be the sole rationale for Defendants’ scheme. The policy itself, and those charged with implementing it admit that the Purpose of Parental Leave Policy, is to allow parents, “time to spend with the child.” Nowhere in the Policy is a higher value placed on such activities as not to traveling, preparing for a child’s placement, undergoing evaluative home visits or undertaking legal proceedings, etc., prior to or even following adoptive, or other, placements. (Aplt. A. 357). University administrators who formulated the Policy concede that no significant differences exist between biological and adoptive parents. (Aplt. A. 353). Defendants have simply chosen when conferring an accrued, earned benefit of employment, to differentiate between parents who are similarly situated in all relevant respects yet in a manner that does not further the underlying Policy’s clearly stated Purposes. Where, as here, “the only basis for the classification is to deny a benefit to one group for no purpose other than to discriminate against that group, the statutory classification is not only mathematically imprecise, it is without a rational basis and arbitrary.” Fitzgerald II, 675 N.W.2d at 14 (citing Thompson v. KFB Ins. Co., 850 P.2d 773, 782 (Kan. 1993).
Defendants have utterly failed to meet the burden of showing that the gender-based classification inherent to the terms of the
27

David A. JOHNSON, on his own behalf and on behalf of..., 2005 WL 5628994...
Policy substantially furthers the express goals of the Policy: to allow parents paid leave to spend time with and attend to caretaking responsibilities of newly arrived children. This failure renders the policy unjustifiably discriminatory and unconstitutional. See Weinberger, 420 U.S. at 651 (“Given the purpose of enabling the surviving parent to remain at home to care for a child, the gender-based distinction of... [the statute] ... is entirely irrational.)

CONCLUSION
On appeal, Mr. Johnson seeks all appropriate Orders: reversing the District Court’s Order granting Defendants’ Motion for Summary Judgment; granting Mr. Johnson’s Motion for Partial Summary Judgment as to the issues of liability; and remanding the matter for further proceedings consistent with these determinations.

REQUEST FOR ORAL ARGUMENT Plaintiff-Appellant David A. Johnson requests 20 minutes for oral argument.

Appendix not available.

Footnotes

1

Appellant’s Separate Appendix hereinafter referred to as Aplt. A.

2
Additionally, although not the focus of this lawsuit, it is noteworthy that Iowa law, under Iowa Code §216.6(2)(e)(2003), governing pregnancy discrimination in benefit distribution, arguably may require eight (8) weeks of pregnancy related disability leave in the event an employer does not require proof of disability. To the extent Iowa law specifies eight (8) weeks as the recognized period of disability related to pregnancy for purposes of its civil rights laws, the University of Iowa’s FMLA leave policy requiring parents who are both employees of the University of Iowa to divide up their twelve (12) weeks of unpaid FMLA leave for the purposes of bonding with a new child would be in violation of Federal Law. See 29 C.F.R. § 825.202 (c) (1995) (“Where the husband and wife both use a portion of the total 12-week FMLA leave entitlement...the husband and wife would each be entitled to the difference between the amount he or she has taken individually and 12 weeks for FMLA leave ... For example, if each spouse took 6 weeks of leave to care for a healthy, newborn child, each could use an additional 6 weeks due to his or her serious health condition.... [M]any State pregnancy disability laws specify a period of disability either before or after the birth of a child; such periods would also be considered FMLA leave for a serious health condition of the mother, and would not be subject to the combined limit.”).

28

 
 431 F.3d 325 (2005)
David A. JOHNSON, on his own behalf and on behalf of all others similarly situated, Plaintiffs-Appellants, v.
UNIVERSITY OF IOWA; State Board of Regents; David J. Skorton, in his official capacity; Douglas K. True, in his official capacity; Susan Buckley, in her official capacity, Defendants-Appellees.
No. 05-1184.
United States Court of Appeals, Eighth Circuit.
Submitted: September 13, 2005. Filed: December 15, 2005.
326 *326 James C. Larew, argued, Iowa City, IA, for appellant.
Mark E. Schantz, argued, Iowa City, IA, for appellee.
Before MELLOY, LAY, and BENTON, Circuit Judges.
MELLOY, Circuit Judge.
David Johnson brought suit against his employer, the University of Iowa ("University"), alleging that the University's Parental Leave Policy violated the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, the Equal Protection Clause of the Iowa Constitution, Title VII of the Civil Rights Act of 327 1964, and the Iowa Civil Rights Act. The district court[1] granted summary judgment *327 to the defendants on all claims. We affirm.
I. Background
In 2002, Johnson and his wife, Jennie Embree, were expecting a baby girl. At that time, Johnson worked full-time in the Office of the Registrar at the University, and Embree worked part-time in the University's College of Nursing. While attending a class that explained the details of the University's Parental Leave Policy, Johnson was told that he, unlike Embree, could not use accrued sick leave to be paid for absences after the birth of their daughter.
The applicable portion of the Parental Leave Policy, as contained in Chapter 22 of the Operations Manual which governs the employment of Embree and Johnson, states:
22.8 PARENTAL LEAVE POLICY
a. Purpose. To permit parents who have care giving responsibilities to have time off to spend with a child newly added to the family and, to the extent permitted by state law, to be paid during such leave. To adapt an employee's work schedule and/or duties to help reduce conflict with parental obligations.
b. Entitlement to Leave.
(1) Twelve-Month Faculty, Professional, Scientific, and Non-Organized Merit System Staff.
(a) Biological mothers are entitled to leave for any period of pregnancy-related temporary disability, to be charged against accrued sick leave. Based on current medical practice, a leave of six weeks or less would not require the employee to provide disability documentation. If an employee's accumulated sick leave is insufficient to cover the period of disability, the employee will, at the employee's request, be granted a leave of absence to be charged to vacation time,

compensatory time, or a leave of absence without pay. Any request for absence beyond the period of disability is considered as a leave of absence without pay or as vacation.
(b) A newly adoptive parent, including a domestic partner, is entitled to one week (5 days) of paid adoption leave to be charged against accrued sick leave. Departments are encouraged to arrange for additional leave as necessary. Departments should work with prospective adoptive parents seeking to adopt through an adoption agency with specific requirements for parental leave, to the extent the adoption leave is not sufficient to undertake an adoption. Time not charged to accrued sick leave may be charged to accrued vacation or taken as leave without pay.
Johnson disagreed with the class instructor's interpretation of the policy, so he sought clarification from other representatives from the University's human resources department as well as the president of the University. After being consistently told that biological fathers were not allowed to use accrued paid sick leave for absences following the birth of a child, Johnson filed a complaint with the Iowa Civil Rights Commission and the Equal Employment Opportunity Commission. He obtained right-to-sue letters and initiated this case in the district court. He was subsequently certified to represent the class of similarly-situated biological fathers employed by the University.
Johnson argues that the University's Parental Leave Policy is discriminatory on its face because it allows 328 biological mothers and adoptive parents to use accrued sick leave after the birth or arrival of a new *328 child
without extending a similar benefit to biological fathers. Johnson also contends that the policy is discriminatory as applied because the University denied his request to use accrued sick leave but granted Embree's request for what Johnson deems "caregiving" leave.
II. Standard of Review
We review the district court's grant of summary judgment de novo. Charleston Hous. Auth. v. United States Dept. of Agric., 419 F.3d 729, 737 (8th Cir.2005). Although the facts are largely undisputed in this case, the parties disagree about the exact nature of the leave the University granted to Embree. Summary judgment is still appropriate, however, when the disputed facts will not affect the outcome of the suit. Dodd v. Runyon, 114 F.3d 726, 729 (8th Cir.1997). For the reasons discussed infra, we find that even if we take Johnson's characterization of Embree's leave as accurate, his claims still fail as a matter of law.
III. Analysis
The University's Parental Leave Policy provides biological mothers and adoptive parents of both genders with the ability to use accrued paid sick leave for time away from work that is related to the addition of a child. Johnson argues that the policy is unlawful because the University does not extend this benefit to biological fathers. All of Johnson's claims of discrimination rely on this premise.
As the district court correctly noted, to determine whether biological fathers are being unlawfully discriminated against, we must separately compare them to the two groups allowed to use accrued paid sick leave: 1) biological mothers and 2) adoptive parents of both genders. We decline to adopt Johnson's repeated characterization that the Parental Leave Policy contains a "biological father exclusion." Rather, the policy provides two different sets of benefits to two different groups.[2] The University did not provide these benefits to Johnson because he is not a member of either group designated to receive benefits. It did not exclude him on the basis that he is a biological father.
A. Biological Mothers Versus Biological Fathers
The University provides biological mothers with the option of using up to six weeks of accrued paid sick leave after birth. Although only women are eligible to receive this benefit, the policy does not necessarily present "gender-plus" discrimination. If the leave given to biological mothers is granted due to the physical trauma they sustain giving birth, then it is conferred for a valid reason wholly separate from gender. If the leave is instead designed to provide time to care for, and bond with, a newborn, then there is no legitimate reason for biological fathers to be denied the same benefit. Thus, the primary question for us to consider is whether the leave given to biological mothers is in fact disability leave.

Johnson relies heavily on the Parental Leave Policy's introductory statement which says its purpose is to "permit parents who have care giving responsibilities to have time off to spend with a child newly added to the family. . . ." Johnson also draws our attention to an "Informational Guide" produced by the University which states: "leave is for the biological mother to recover from childbirth and to spend time with the newborn child. . . ." Although 329 these purpose statements cloud *329 the issue, they are not part of the operative language of the policy.[3] The sentence that actually confers the benefit at issue states: "Biological mothers are entitled to leave for any period of pregnancy-related temporary disability, to be charged against accrued sick leave." This policy language does not allow mothers to use accrued sick leave after their period of disability has ended. Thus, the period away from work constitutes disability leave, even though mothers are likely caring for their newborns during this period. Allowing biological mothers pregnancy-related disability leave on the same terms as employees with other disabilities is not only permissible, but is required by the Pregnancy Discrimination Act of 1978. Pub.L. No. 95-555, 92 Stat.2076 (1978).
Johnson argues that the University's paid maternity leave cannot be interpreted as disability leave because the University does not require proof of a disability when the leave taken after giving birth is six weeks or less. We reject this argument because it is not unreasonable for the University to establish a period of presumptive disability so that it does not need to review medical records for each and every employee who gives birth. In support of its motion for summary judgment, the University provided testimony that a six-week period of disability after childbirth is supported by medical evidence. Although Johnson submitted Embree's affidavit claiming that she was fully recovered from childbirth after four weeks, he has offered no medical evidence indicating that the general period of recovery is less than six weeks. For all of these reasons, we find that the policy's provisions distinguishing between biological mothers and biological fathers are not facially invalid.
Johnson also contends that even if these provisions are facially valid, they are discriminatory as applied. He claims that Embree was given four weeks of medical leave and then two weeks of paid "parental leave," but that his request to take any paid leave was denied. Embree's affidavit asserts that she decided to take four weeks of medical leave and then an additional two weeks of partial leave "for the exclusive purpose of spending time with and caring for [her] newborn child." Embree's affidavit also contends that she made the reasons for her requested leave known to a supervisor.
In considering this motion for summary judgment, we must assume that Embree's assertions are accurate because "we take the non-movant's evidence as true, drawing all reasonable inferences in his or her favor." Scusa v. Nestle U.S.A. Co., 181 F.3d 958, 964 (8th Cir.1999). Embree's reasons for requesting leave are not at issue, however. We are only concerned with the University's motivation in granting the leave. The University 330 required Embree to obtain a medical release before she voluntarily returned to work on a part-time *330 basis four weeks after giving birth.[4] Johnson contends that this release proves that the subsequent two weeks of parttime leave granted to Embree were for "caregiving" purposes and not disability leave. This argument fails to consider the possibility of partial disability leave. In the fifth and sixth weeks after giving birth, Embree worked only ten hours per week. Furthermore, she worked from home. Thus, it is not a reasonable inference to assume that Embree demonstrated that she was medically cleared to return to work full-time without any restrictions, but was then still allowed to continue to take paid leave.
Even if we assume that the University did allow Embree to use accrued sick leave solely for the purpose of caring for her newborn, Johnson cannot establish that the policy was improperly applied to him in a discriminatory fashion. To demonstrate that the University's stated reasons for treating Johnson and Embree differently are pretextual 0907 and that Johnson's gender was the real reason he was discriminated against 0907 Johnson would have to show that he was treated differently than a "similarly situated" female employee. Rodgers v. U.S. Bank, N.A., 417 F.3d 845, 853 (8th Cir.2005). At the pretextual stage of the analysis, "the test for determining whether employees are similarly situated to a plaintiff is a rigorous one." Id. In this stage, the plaintiff must show that the employee who was treated differently was similarly situated to him "in all relevant respects." Id. The same requirement applies to equal protection claims. "To establish a gender-based claim under the Equal Protection Clause, the appellants must, as a threshold matter, demonstrate that they have been treated differently by a state actor than others who are similarly situated simply because appellants belong to a particular protected class." Keevan v. Smith, 100 F.3d 644, 647-48 (8th Cir.1996).

Johnson and Embree are not similarly situated. They had different job responsibilities, worked in different departments and reported to different supervisors. Most significantly, Johnson was a full-time employee and Embree was a part-time employee. Generally, part-time employees are not similarly situated to full-time employees. See Lowery v. Hazelwood Sch. Dist., 244 F.3d 654, 660 (8th Cir.2001). Furthermore, even if Embree and Johnson were similarly situated from an employment perspective, at the time Embree allegedly received parental leave for caregiving purposes, she was only a month removed from childbirth. Even if Embree was medically released to begin working from home on a part-time basis, the fact that she had recently gone through the physical trauma of labor is a distinguishing characteristic between her and Johnson. Accordingly, Johnson's "as applied" challenge to the biological mother classification fails.
Johnson urges us to find that the Equal Protection Clause of the Iowa Constitution provides broader protection than the Equal Protection Clause of the United States Constitution. His argument relies on Racing Ass'n of Cent. Iowa v. Fitzgerald, 675 N.W.2d 1 (Iowa 2004), in which the Iowa Supreme Court found that different tax rates on the slot machines of racetracks and river boats violated the Iowa Constitution even though the United States Supreme Court had ruled that the differing tax rates did not violate the United States Constitution. Although the 331 Iowa Supreme Court noted that the federal constitutionality *331 of a law is "not binding" on whether the law violates the Iowa Constitution, such a conclusion was deemed to be "persuasive." Id. at 5. For the reasons already discussed, we believe that even if the Iowa Supreme Court conducted an independent analysis of this policy under its state constitution, it would also uphold the policy.
B. Biological Fathers v. Adoptive Parents
The Parental Leave Policy's classification allowing adoptive parents to use accrued sick leave does not discriminate on the basis of gender. It provides exactly the same benefits to adoptive fathers as to adoptive mothers. Nonetheless, Johnson argues that the policy is unlawful because it extends benefits to adoptive parents but not to biological fathers. To analyze the merits of this claim we must first determine the requisite level of scrutiny.
Johnson contends that the policy should be reviewed with strict scrutiny because it interferes with his fundamental rights of child-rearing. Although the Supreme Court has recognized a number of fundamental rights concerning parents' ability to raise their children, Johnson offers no precedent establishing that these rights include the ability to take time off from work to bond with a child. Furthermore, Johnson was allowed to take unpaid leave in accordance with the Family Medical Leave Act. He sued the University because he was unable to receive paid leave. The United States Supreme Court has defined fundamental rights as those rights that are "deeply rooted in this Nation's history and tradition." Moore v. City of East Cleveland, 431 U.S. 494, 503, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977). The ability to get paid leave from an employer does not fall into this category.
Because biological fathers are not a suspect class and because the right to paid leave is not fundamental, the appropriate standard of review is the rational basis test. Clayton v. White Hall Sch. Dist., 875 F.2d 676, 680 (8th Cir.1989) (upholding a school district's policy of allowing the children of administrative employees, but not general employees, to open enroll into the district). A classification reviewed under this standard will be upheld "if it has some reasonable basis." Id. Adoptive parents face demands on their time and finances that may be significantly greater than those faced by biological parents. For example, the benefits of the University's health insurance plan offset the medical costs arising when an employee or an employee's spouse gives birth. Adoptive parents receive no such insurance benefit to offset the costs of adoption. Adoptive parents may also be required to take time off from work to deal with adoption-related administrative concerns prior to the arrival of the child.[5] Johnson may be correct that the distinctions between adoptive fathers and biological fathers are minimal. However, "[t]he process of classifying persons for benefits inevitably requires that some persons with nearly equal claims will be placed on different sides of the line, and whether the line might have been better drawn is a matter for legislative, rather than judicial, consideration." Id. at 680. Accordingly, we find that the policy provisions granting benefits to 332 adoptive parents, *332 like those provisions giving benefits to biological mothers, are not unlawful.
IV. Conclusion

Because we find that the leave granted to biological mothers is disability leave and that the University did not apply the policy improperly, Johnson has not established the requisite adverse treatment of biological fathers that would be necessary for his Title VII claim to survive. We analyze Johnson's Iowa Civil Rights Act claim under the same framework as the Title VII claim, so it must also fail. Henthorn v. Capitol Communications, Inc., 359 F.3d 1021, 1024 n. 2 (8th Cir.2004).
We hold that there is no fundamental right to paid leave from an employer so the policy benefits given to adoptive parents need only survive rational basis review. As the University has articulated legitimate reasons for the classifications made in the policy, the University is entitled to summary judgment on the claim under the federal Equal Protection Clause. We also conclude that the policy does not violate the Equal Protection Clause of the Iowa Constitution even though the protections provided by that clause are arguably broader than those under its federal counterpart.
For the foregoing reasons, we affirm the district court's grant of summary judgment to the defendant on all claims.
[1] The Honorable Ronald E. Longstaff, United States District Judge for the Southern District of Iowa.
[2] Biological mothers are allowed to use up to six weeks of accrued sick leave to cover an absence while adoptive parents can use only one week.
[3] The plaintiff's claim is expressly premised on alleged violations of Title VII and the Equal Protection Clause of the United States Constitution; it is not based on breach of contract. In the briefs and at oral argument there was considerable discussion of the prefatory language to the policy that states the University will provide paid leave "to the extent permitted by state law." Counsel for the University acknowledged that the University could lawfully provide paid leave to biological fathers. In fact, Iowa State University, another institution under the supervision of Iowa's Board of Regents, provides the type of paid leave the plaintiff requested in this case.
Like the district court, we are troubled because the operative language of the policy seems to run counter to its prefatory language. However, like the learned district court judge, our duty is not to pass on the "fairness" of the policy, but rather to determine whether it is unconstitutional or in violation of any statute.
[4] This also bolsters the University's argument that it operates under the assumption that women generally need six weeks to recover from childbirth.
[5] The parties disagree as to whether the policy allows for the use of accrued sick leave to cover absences prior to the arrival of the adopted child, but this fact is not material. Even if the policy does not allow prospective adoptive parents to use accrued sick leave in this fashion, the resulting need for adoptive parents to take unpaid time off prior to the child's arrival provides a legitimate reason to make it easier for them to take paid leave after the child's arrival.
Save trees - read court opinions online on Google Scholar.