IN THE SUPREME COURT OF IOWA 

No. 51 / 07–0573 

Filed June 6, 2008 

KATHY WEDDUM, 

 Appellee, 

vs. 

DAVENPORT COMMUNITY SCHOOL DISTRICT, 

 Appellant. 

 Appeal from the Iowa District Court for Scott County, Nancy S. 

Tabor, Judge. 

 School district seeks discretionary review of district court decision 

denying motion for summary judgment in an age-discrimination action. 

REVERSED AND REMANDED. 

 William C. Davidson, Mikkie R. Schiltz, and Wendy S. Meyer of 

Lane & Waterman LLP, Davenport, for appellant. 

Dorothy A. O’Brien, Davenport, for appellee. 

Edward M. Mansfield of Belin Lamson McCormick Zumbach Flynn, 

PC, Des Moines, for amicus curiae Iowa Association of School Boards. 
 2

STREIT, Justice. 

 A school district denied a teacher’s application for early retirement 

incentives because she did not meet the plan’s minimum age 

requirement. She sued, arguing the school district’s decision violated the 

Iowa Civil Rights Act’s prohibition on age discrimination. She and the 

school district brought cross motions for summary judgment. Both were 

denied. We granted the school district’s motion for interlocutory appeal 

and now reverse. The district court should have granted the school 

district’s motion because the early retirement incentive plan falls within 

an express exception to the general prohibition on age discrimination. 

I. Facts and Prior Proceedings. 

Kathy Weddum had been a math teacher with the Davenport 

Community School District since 1972. The school district implemented 

an early retirement incentive plan for the 2004-2005 school year. The 

plan provided a purpose statement: 

The purpose of this plan is to provide the District’s 

employees with the option and opportunity for early 

retirement from their employment with the District. This 

Early Retirement Incentive Plan is designed to show the 

District’s appreciation for the services an employee has 

rendered to the District, to aid the employee in their 

transition from public service to retirement, and to save 

District funds through a reduction in staff and/or 

replacement savings. 

 To be eligible for the plan, an employee was required to satisfy the 

following criteria: 

(1) reached age fifty-five or older by June 30, 2005; 

(2) completed at least twenty years of continuous 

contracted service with the district by June 30, 2005; 

(3) worked at least a minimum of six hours per day or had 

a contract of at least 75% full time employment; 
 3

(4) submitted an application for participation in the plan 

to the school board prior to January 31, 2005; and 

(5) agreed to retire at, and not before, the conclusion of 

the contract or assignment year for 2004-2005 and no 

later than June 30, 2005. 

 In return for meeting the terms of the plan, an employee received 

the following benefits: 

(1) the lesser of $25,000 or 50% of the employee’s 2004-

2005 salary to be paid into a 403(b) or Health Care 

Savings Plan over five years; and 

(2) continued participation of current coverage in a 

medical plan by employee’s payment of the monthly 

premium. 

 In late December 2004, Weddum submitted her application for 

early retirement. She satisfied the years-of-service requirement but did 

not reach the age of fifty-five until September 17, 2005, almost three 

months after the deadline. The school district denied Weddum’s request 

in a January 6 email. 

 On January 19, the school district notified employees of its 

decision to expand the early retirement plan to employees who had 

completed at least fifteen years of continuous contracted service. The 

remaining eligibility requirements of the plan were unchanged. The 

school district later extended the application deadline. 

On January 31, Weddum wrote a letter to the school district 

indicating her intent to retire at the end of the 2005 school year. The 

letter stated “I have decided to retire and wish to resign from teaching in 

the Davenport Community School District at the end of the 2004-2005 

school year.” The school board accepted her resignation on February 14 

but refused to categorize her departure as a retirement. 
 4

After satisfying the administrative requirements, Weddum filed this 

lawsuit contending the school district’s denial of early retirement benefits 

violated the age discrimination prohibition found in the Iowa Civil Rights 

Act (ICRA). Both Weddum and the school district moved for summary 

judgment. Weddum argued the school district’s early retirement plan 

amounted to overt and arbitrary age discrimination. Alternatively, she 

argued summary judgment should not be granted in favor of the school 

district because the district’s treatment of other employees created a 

question of fact as to its motives for excluding Weddum from the plan. 

The school district argued summary judgment should be granted in its 

favor because its early retirement plan is consistent with the exception 

for retirement plans found in the ICRA. 

The court denied both motions, ruling there was a material 

question of fact with respect to the school district’s motives that should 

be decided by a jury. We granted the school district’s request for an 

interlocutory appeal. We subsequently dismissed Weddum’s cross 

appeal as untimely. For the reasons that follow, we reverse the decision 

of the district court and remand for the court to enter judgment in favor 

of the school district. 

 II. Scope of Review. 

We review a district court’s ruling on a motion for summary 

judgment for correction of errors at law. Stewart v. Sisson, 711 N.W.2d 

713, 715 (Iowa 2006). Summary judgment is appropriate if, viewing the 

evidence in the light most favorable to the nonmoving party, “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 a 

judgment as a matter of law.” Iowa R. Civ. P. 1.981(3). An issue of fact 
 5

is “material,” for summary judgment purposes, “only if ‘the dispute is 

over facts that might affect the outcome of the suit, given the applicable 

law.’ ” Lewis v. State ex rel. Miller, 646 N.W.2d 121, 124 (Iowa Ct. App. 

2002) (quoting Fouts ex rel. Jensen v. Mason, 592 N.W.2d 33, 25 (Iowa 

1999)). “When the only controversy concerns the legal consequences 

flowing from undisputed facts, summary judgment is the proper remedy.” 

Bob Zimmerman Ford, Inc. v. Midwest Auto. I, L.L.C., 679 N.W.2d 606, 

608 (Iowa 2004). 

III. Merits. 

Weddum’s lawsuit contends the school district violated the ICRA 

when it denied her early retirement benefits because she did not satisfy 

the plan’s minimum age requirement—i.e., she was discriminated 

against because she was not old enough.1 In considering age 

discrimination claims brought under the ICRA, we turn to federal law 

interpreting the Age Discrimination in Employment Act (ADEA). See 

McMannes v. United Rentals, Inc., 371 F. Supp. 2d 1019, 1027 (N.D. Iowa 

2005). In General Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581, 

584–85, 124 S. Ct. 1236, 1239, 157 L. Ed. 2d 1094, 1103 (2004), the 

United States Supreme Court held the ADEA does not prohibit “reverse 

age discrimination.” It found the Act’s prohibition of age-based 

discrimination only forbade employers from favoring younger workers at 

the expense of older workers. Gen. Dynamics Land Sys., Inc., 540 U.S. 

at 600, 124 S. Ct. at 1248–49, 157 L. Ed. 2d at 1113 (“We see the text, 

structure, purpose, and history of the ADEA, along with its relationship 

 1 Weddum also alleges the district court’s denial of early retirement benefits was 

unconstitutional. However, because the district court did not rule on this issue, we will 

not address it for the first time on appeal. DeVoss v. State, 648 N.W.2d 56, 63 (Iowa 

2002) (holding the court will not consider a substantive or procedural issue for the first 

time on appeal except for evidentiary rulings). 

 
 6

to other federal statutes, as showing that the statute does not mean to 

stop an employer from favoring an older employee over a younger one.”). 

Weddum argues the ICRA is more expansive because it prohibits 

age discrimination against all employees in contrast to the federal act 

which only prohibits age discrimination against employees age forty 

years or older. Compare Iowa Code § 216.6(1)(a), with 29 U.S.C. § 

623(a)(1), 631(a). Indeed we recognized the ICRA is “age-neutral” in a 

case brought by a thirty-nine year old employee. Hulme v. Barrett, 449 

N.W.2d 629, 631–32 (Iowa 1989). However, in Hulme the plaintiff did not 

allege she was being discriminated against because she was too young. 

Rather, she alleged her employer violated the ICRA by reducing her 

hours instead of the hours of newer, younger employees who were being 

paid lower wages. Id. Thus, it remains an open question whether the 

ICRA prohibits an employer from favoring older workers at the expense of 

younger workers because of their age. We need not determine whether 

the ICRA contemplates a cause of action for reverse age discrimination in 

other contexts because we find the ICRA plainly allows early retirement 

plans with minimum age requirements. Cf. Davis v. City of Waterloo, 551 

N.W.2d 876, 881 (Iowa 1996) (stating ICRA protects Caucasians from 

discrimination based on race as much as it does African-Americans and 

members of other racial minorities). 

 Chapter 279 of the Iowa Code governs the powers and duties of 

school boards. Iowa Code section 279.46 expressly gives school boards 

the power to offer early retirement incentives to its employees 

conditioned upon reaching a minimum age. It states: 

The board of directors of a school district may adopt a 

program for payment of a monetary bonus, continuation of 

health or medical insurance coverage, or other incentives for 

encouraging its employees to retire before the normal 
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retirement date as defined in chapter 97B. . . . The age at 

which employees shall be designated eligible for the program 

shall be at the discretion of the board. 

(Emphasis added.) While the ICRA makes it generally unlawful to 

discriminate against an employee because of the employee’s age, see 

Iowa Code § 216.6(1)(a),2 the Act provides a specific exception for 

retirement plans. Iowa Code section 216.13 states: 

The provisions of this chapter relating to discrimination 

because of age do not apply to a retirement plan or benefit 

system of an employer unless the plan or system is a mere 

subterfuge adopted for the purpose of evading this chapter. 

A “subterfuge” is a “ ‘scheme, plan, stratagem, or artifice of 

evasion.’ ” Pub. Employees Ret. Sys. of Ohio v. Betts, 492 U.S. 158, 167, 

109 S. Ct. 2854, 2861, 106 L. Ed. 2d 134, 148 (1989) (quoting United Air 

Lines, Inc. v. McMann, 434 U.S. 192, 203, 98 S. Ct. 444, 450, 54 L. Ed. 

2d 402, 413 (1977)); see also Merriam-Webster’s Collegiate Dictionary 

1171 (10th ed. 2002) (defining “subterfuge” as “a deceptive device or 

stratagem”). There is no evidence in the record to suggest the school 

district acted with age-related animus toward Weddum. Nor is there 

evidence to suggest Weddum was otherwise being singled out. To the 

contrary, two other employees did not qualify for the early retirement 

plan because they were also too young. 

 Moreover, the school district provided a legitimate reason for 

setting the minimum age requirement. According to the school district, 

the early retirement program is primarily driven by financial savings. 

Teachers’ salaries are paid out of the school district’s general fund. 

 2 Iowa Code § 216.6(1)(a) states “[i]t shall be an unfair or discriminatory practice 

for any . . . [p]erson to refuse to hire, accept, register, classify, or refer for employment, 

to discharge any employee, or to otherwise discriminate in employment against any 

applicant for employment or any employee because of the age . . . of such applicant or 

employee, unless based upon the nature of the occupation.” 
 8

Replacing a senior teacher with a more junior teacher results in a cost 

savings because a teacher’s salary is based on years of experience. 

Additionally, chapter 279 allows school districts to pay early retirement 

incentives out of their “management levy” funds (i.e. local tax revenues). 

See Iowa Code § 279.46. This funding avenue for the incentives frees up 

more money in the school districts’ general funds for other needs. 

However, in order to utilize management levy funds to pay early 

retirement incentives, the employees receiving the funds must be 

between the ages of fifty-five and sixty-five at the time of their 

retirement.3 Id. Thus, the school district in this case was not willing to 

extend its early retirement plan to teachers who were not at least fiftyfive years old on June 30 because the cash incentive would have to come 

out of the general fund if it did so. 

After the plan was originally offered, fewer than expected 

employees chose to retire. The school district expanded the pool of 

employees qualified for the plan by lowering the years-of-service 

requirement from twenty years to fifteen years. The school district chose 

this route to make more employees eligible because the use of 

management levy funds is not dependent upon how many years the 

employees worked. 

 Weddum notes the school district offered a similar early retirement 

incentive plan during the previous school year which required employees 

to be at least fifty-five by September 30.4 Weddum’s birthday is 

September 17. Had the school district used the same date in the year 

Weddum retired, she would have been eligible for the early retirement 

 3 The school district’s plan does not have a maximum retirement age. 

4 The school district chose the later cut-off date the year before in order to 

induce a teacher with performance problems to accept the early retirement incentive. 

She had a September birth date. 
 9

benefits plan. However, Iowa law expressly gives school districts the 

discretion to determine the age upon which employees are eligible for 

early retirement benefits. Iowa Code § 279.46. School districts are 

under no obligation to offer the same plan (or any plan) from year to 

year. 

 Our conclusion is also supported by federal case law. The ADEA 

provides a safe harbor provision for “voluntary early retirement incentive 

plan[s] consistent with the relevant purpose or purposes of this chapter.” 

See 29 U.S.C. § 623(f)(2)(B)(ii). Recently, the eighth circuit held a plan 

similar to the one at issue here fell within this exception. Morgan v. A.G. 

Edwards & Sons, Inc., 486 F.3d 1034 (8th Cir. 2007). There, employees 

age fifty or older with at least fifteen years of service were given one year’s 

salary and other benefits in return for retiring. Id. at 1037. The Morgan 

court distinguished one of its earlier decisions upon which Weddum 

relies. See Jankovitz v. Des Moines Indep. Cmty. Sch. Dist., 421 F.3d 649 

(8th Cir. 2005). In Jankovitz, the eighth circuit found an early retirement 

incentive plan violated the ADEA because benefits were cut off by an 

upper age limit of sixty-five. Id. at 655 (“The basis for our conclusion 

that the amended [early retirement incentive plan] is inconsistent with a 

purpose of the ADEA is the fact that the amount of available early 

retirement benefits drops to zero upon an employee’s attainment of the 

age of 65.”); see also Auerbach v. Bd. of Educ. of the Harborfields Cent. 

Sch. Dist., 136 F.3d 104, 114 (2d Cir. 1998) (“An early retirement 

incentive plan that withholds or reduces benefits to older retiree plan 

participants, while continuing to make them available to younger retiree 

plan participants so as to encourage premature departure from 

employment by older workers conflicts with the ADEA's stated purpose to 

prohibit arbitrary age discrimination in employment.”). The Morgan 
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court found the early retirement incentive plan lawful because it did not 

include a maximum age requirement. Morgan, 486 F.3d at 1042. 

Similarly, the school district’s plan in the present case “offered the 

same incentives to all eligible persons and did not employ an age-based 

phase-out where plan benefits decreased over time or were reduced to 

zero upon a certain age in order to encourage employees to participate in 

the plan.” Id. Moreover, there was no evidence to suggest the plan was 

“a mere subterfuge adopted for the purpose of evading” the ICRA. Iowa 

Code § 216.13. The school district was entitled to a judgment in its favor 

as a matter of law. 

 IV. Conclusion. 

 In summary, the school district’s early retirement incentive plan 

fell squarely within the ICRA exclusion for retirement plans. Therefore, it 

was error to deny the school district’s motion for summary judgment. 

REVERSED AND REMANDED.