United States Court of Appeals

For the Eighth Circuit

___________________________

No. 20-2226

___________________________

Susan Ackerman

lllllllllllllllllllllPlaintiff - Appellant

v.

State of Iowa; Iowa Workforce Development; Teresa A. Wahlert; Teresa Hillary;

Devon Lewis; Beth Townsend; Jon Nelson

lllllllllllllllllllllDefendants - Appellees

 ____________

Appeal from United States District Court 

for the Southern District of Iowa - Central

 ____________

 Submitted: May 11, 2021

Filed: December 6, 2021

____________

Before COLLOTON, WOLLMAN, and KOBES, Circuit Judges. 

____________

WOLLMAN, Circuit Judge.

Susan Ackerman brought retaliation, defamation, and intentional infliction of

emotional distress claims against her former employer, Iowa Workforce Development

(Workforce Development) and the state of Iowa, as well as against certain former
supervisors and coworkers. She appeals from the district court’s1

 grant of summary

judgment in the defendants’ favor. We affirm.

I. Background

Ackerman graduated from law school in 1995 and was employed as an

Administrative Law Judge (ALJ) by the State of Iowa in Workforce Development’s

Unemployment Insurance Appeals Bureau (Bureau) from 2000 until her termination

in 2015. Ackerman sought in November 2012 to add her twenty-seven-year-old

daughter Catherine Holcombe to her employer-provided health insurance plan for

calendar year 2013. At that time and all relevant times thereafter, Iowa state

employees could secure employer-provided health insurance for an employee’s child

who was over the age of twenty-six only if the child was both unmarried and a

full-time student. Catherine was separated but not divorced from her husband and

had recently moved from Hawaii to Minnesota to attend school. Because of financial

constraints, Catherine’s divorce was not yet finalized.

Ackerman emailed Workforce Development Human Resources Associate

Monica Reynolds, with whom she had worked for several years, to inquire whether

Catherine was eligible for enrollment as an unmarried, full-time student dependent. 

Ackerman wrote, “I’ve looked at that web site for the dependent tax consequences

and it seems that I can only get coverage for Cathy if she is unmarried???” Reynolds

responded that she thought Catherine was unmarried, to which Ackerman replied,

“No, her husband is still in Hawaii but will probably be moving back here next year.” 

Reynolds responded, “Who has to know she is married??” Ackerman thereafter

enrolled Catherine in the health plan, through which Catherine received benefits

during 2013. 

1The Honorable John A. Jarvey, Chief Judge, United States District Court for

the Southern District of Iowa.

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Ackerman re-enrolled Catherine in the 2014 health plan during November

2013. Ackerman completed a “Full-Time Student Verification Form,” on which she

checked a box indicating that Catherine was not married.2 An accompanying

“Certification of Full-Time Student Status” form bearing Ackerman’s signature

contained the following certifying statement:

I am providing this information to my employer for insurance enrollment

and tax reporting purposes. By signing and returning this form, I certify

that all of the statements above are true. . . . In addition, I certify that this

full-time student is unmarried. If my full-time student’s status changes,

I will notify my employer immediately by submitting that information,

in writing, to my Personnel Assistant. 

Meanwhile, the Iowa Senate Government Oversight Committee (Oversight

Committee) had launched an unrelated investigation of Workforce Development

based on complaints about inappropriate political influence within its organizational

structure. At the time, Workforce Development was led by Director Teresa Wahlert. 

Wahlert, a political appointee, directly supervised all of the ALJs, who were meritbased employees rather than political appointees or at-will employees. The

organizational structure also included three “lead” ALJs, who were selected from

among the existing ALJs and were responsible for streamlining work flow and

overseeing policy, but held no supervisory authority. Teresa Hillary and Devon

Lewis held two of the three lead ALJ positions at the time. Earlier in Wahlert’s

tenure, Workforce Development’s organizational structure included a chief ALJ, who

was a merit employee and was positioned as a buffer between the political appointee

director and the ALJs.

2Ackerman contends that she also completed this form in 2012 for 2013, but

Workforce Development has not located a copy from 2012, and thus it does not

appear in the record. 

-3-
Pursuant to the Oversight Committee investigation, five Workforce

Development ALJs, including Ackerman, Hillary, and Lewis, were subpoenaed

during August 2014 to testify. Ackerman stated during her testimony that she

believed that Wahlert’s direct supervision of the ALJs permitted political interference

with their judicial independence. Hillary and Lewis testified in support of Wahlert,

denying that there was improper political pressure within Workforce Development. 

Wahlert testified before the Oversight Committee the next day. During the

hearing, a senator inquired about Hillary’s appointment to one of the lead ALJ

positions despite certain professionalism concerns. Wahlert responded, “[I]n fairness,

Senator, if you’d like me to bring the dirt on all the judges, I’m happy to do that. I’m

happy to give you what the comments are that Bonnie . . . Hendricksmeyer had, that

. . . Marlon Mormann had, that Susan Ackerman had, that any of the judges had. It’s

public information.” Wahlert continued:

And there are, many of [the decisions] are similar to the one, the only

one you decided to read. I might also bring up that Susan Ackerman,

who was over here, . . . in distress, has a finding from the US

Department of Labor on attitude, bias and prejudice, and forwarded to

the Law Review of one of her cases eight months ago. And three

months ago, again, did not pass a Department of Labor review of one of

her cases, because she did not give due process to, to the people

involved in the case. So, I think singling out any one judge is probably

inappropriate, I think they all have bad days, just like you have bad days,

and I have bad days. 

The Oversight Committee’s post-hearing Findings and Recommendations included

a recommendation that political appointees refrain from supervising or evaluating

ALJs. 

Ackerman took FMLA leave from September 11, 2014, to October 22, 2014.

 Following Ackerman’s return, Wahlert completed Ackerman’s August-scheduled

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annual performance evaluation in November. Wahlert rated Ackerman as meeting

expectations in five of eight review categories and as not meeting expectations in

two. In the remaining category, which rated Ackerman’s compliance with the United

States Department of Labor’s hearing and decision criteria, Wahlert checked both the

“meets expectations” and “does not meet expectations” boxes. Wahlert then wrote,

“Questionable—failed 1 case—and received either a fail or less than 90% on a

second.”3 When Wahlert completed the “Overall Rating” section of the evaluation

form, she first marked “does not meet expectations,” but then scratched out that mark

and checked the “meets expectations” box. Wahlert then signed and dated the form. 

Shortly after her performance evaluation, Ackerman prepared to re-enroll

Catherine in the 2015 health plan. The judgment finalizing Catherine’s divorce had

been entered on June 2, 2014, and she had reverted to using her maiden name,

Brightman. Ackerman called Human Resources Associate Heather Semke to notify

her that Catherine’s last name had changed because of her recent divorce and that her

school records would reflect the update. According to Semke, Ackerman “reiterated

several times that her daughter was unmarried because she was not living with her

husband in Hawaii, and she was not receiving any support from her husband.” Semke

testified that Ackerman’s statements “made no sense” at the time, given the apparent

discrepancies between previous years’ “unmarried” insurance form certifications and

Catherine’s divorce date. Semke testified that following additional communications

with Ackerman, she referred the matter to Jon Nelson, Workforce Development’s

3Hillary later testified that the United States Department of Labor required

regular reviews of ALJ cases. The Department of Labor randomly selected the cases

to be reviewed, and fellow Workforce Development employees then performed the

review by applying a numerical rating to Department-of-Labor-provided criteria. 

Multiple criteria related to due process. There is some dispute whether an overall

passing score was 85% or 90%. Hillary testified, however, that even an ALJ who

passed the review overall could still fail the due process evaluation, which was

subsumed under but delineated within the overall review. 

-5-
Human Resources Supervisor. Nelson thereafter informed Iowa’s Department of

Administrative Services (Administrative Department) about the situation to obtain

Ackerman’s prior health insurance enrollment forms. An Administrative Department

risk and benefits manager confirmed that Catherine had been enrolled in the plan

since January 2013, stated that “any attorney would know” that being separated was

not the same as being unmarried, and noted that “discipline may be in order.” 

Ackerman was placed on paid suspension on December 11, 2014, pending a

misconduct investigation. Nelson interviewed Ackerman the next day in the presence

of a union representative. Ackerman averred during the interview that had she

learned from Reynolds in 2012 what Semke told her in 2014, she never would have

enrolled Catherine. Ackerman maintained her original position—that when she first

enrolled Catherine in the 2013 health plan she believed that Catherine was properly

eligible because of her marital separation and subsequent move to Minnesota. Nelson

interviewed Ackerman two additional times, with a union steward present on both

occasions. Nelson also interviewed Reynolds, as well as a former Administrative

Department employee with whom Reynolds had allegedly spoken in 2012 to

determine Catherine’s eligibility.

Workforce Development’s investigation concluded that Ackerman had

fraudulently filed insurance enrollment forms and had deliberately falsified

Catherine’s marital status. As set forth in the discharge letter signed by Bureau

Division Administrator Stephen Slater, Ackerman was terminated from Workforce

Development effective January 30, 2015.4

 Workforce Development thereafter filed

a complaint against Ackerman with the Iowa Supreme Court Attorney Disciplinary

Board, which subsequently dismissed the complaint. Workforce Development also

4Wahlert resigned from Workforce Development during the pendency of the

Ackerman investigation and was replaced by Beth Townsend. Ackerman alleges that

Townsend made the ultimate termination decision.

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referred its investigation to the Iowa Division of Criminal Investigation, which

pursued criminal insurance fraud charges against Ackerman that were ultimately

dismissed on statute of limitations grounds.

Ackerman filed a grievance with her union pursuant to her collective

bargaining agreement. The Administrative Department investigated and denied relief. 

The matter was thereafter sent to arbitration. The Administrative Department

arbitrator concluded that Workforce Development had just and proper cause to

terminate Ackerman. Specifically, the arbitrator determined that Ackerman had

received proper notice that her behavior was inappropriate, that there was substantial

evidence of misconduct, that Ackerman was treated fairly and without discrimination,

and that given Ackerman’s position as a judge, termination was reasonably related to

the seriousness of her misconduct. 

Ackerman’s union thereafter filed an Iowa state-court application to vacate the

arbitration decision, arguing that the arbitrator evidenced partiality and that his

decision was not supported by substantial evidence. The state court upheld the

arbitrator’s core finding—“that Ackerman knowingly lied about her daughter’s

marital status in order to enroll her on her health insurance plan”—concluding that

it was supported by substantial evidence. The union did not appeal that

determination. 

Ackerman initiated this suit in January 2015 in Iowa state court, asserting that

she was suspended—and later terminated—in retaliation for her testimony before the

Oversight Committee and that the insurance fraud investigation constituted a mere

pretext. As relevant to this appeal, she brought state retaliation and defamation

claims, as well as a 42 U.S.C. § 1983 First Amendment retaliation claim. Ackerman

later amended her complaint to add an intentional infliction of emotional distress

-7-
claim.5

 The defendants removed the case to federal court. Ackerman unsuccessfully

attempted to dismiss her Section 1983 claim, the sole basis for federal jurisdiction,

and to remand the case to state court. She then amended her complaint to add an

Iowa state constitutional free speech claim. 

Following depositions, the district court granted the defendants’ motion for

summary judgment. As relevant to this appeal, the district court determined that

Ackerman had failed to show that any adverse employment action was in reprisal for

her critical testimony; that Wahlert was entitled to qualified privilege and sovereign

immunity on Ackerman’s defamation claims; that the individual defendants were

entitled to qualified immunity on Ackerman’s First Amendment retaliation claim

because Ackerman had failed to establish a prima facie retaliation case; that Iowa’s

whistleblower statute preempted Ackerman’s common law intentional infliction of

emotional distress claim and that she had failed to show any outrageous conduct by

the defendants; and that the defendants were entitled to Eleventh Amendment

immunity and “all due care” qualified immunity on Ackerman’s state constitutional

claim.

II. Discussion

We review de novo the district court’s grant of summary judgment. Holaway

v. Stratasys, Inc., 771 F.3d 1057, 1058 (8th Cir. 2014). Summary judgment is

appropriate when “there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Although at

summary judgment we take the record in the light most favorable to the nonmoving

party, there is no genuine issue for trial when “the record taken as a whole could not

5Ackerman also added a common law wrongful discharge claim, which the

district court, after removal, dismissed based on the Iowa Supreme Court’s holding

in Ferguson v. Exide Technologies, Inc., 936 N.W.2d 429 (Iowa 2019) (per curiam). 

Ackerman does not appeal this dismissal. 

-8-
lead a rational trier of fact to find for the nonmoving party.” Holaway, 771 F.3d at

1059 (quoting Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011)

(en banc)). 

A. Whistleblower Retaliation Claim 

Ackerman argues that there exists a genuine issue of material fact regarding

whether her critical Oversight Committee testimony caused her November 2014

performance evaluation, her paid suspension, and her ultimate termination, in

violation of Iowa’s whistleblower statute, Iowa Code § 70A.28. 

Iowa’s whistleblower statute protects state employees who disclose to a public

official information that the employee reasonably believes “evidences a violation of

law or rule, mismanagement, a gross abuse of funds, [or] an abuse of authority.”6 Id.

§ 70A.28(2); see also Hedlund v. State, 930 N.W.2d 707, 717 (Iowa 2019), as

amended (Sept. 10, 2019). The parties do not dispute that Ackerman’s testimony to

the Oversight Committee qualifies as such protected speech. To prove she is eligible

for relief under the whistleblower statute, however, Ackerman must show that she

6Section 70A.28 provides in relevant part: 

A person shall not discharge an employee from or take . . . action

regarding . . . a position in a state employment system administered by

. . . a state agency as a reprisal . . . for a disclosure of any information by

that employee to a member . . . of the general assembly . . . if the

employee, in good faith, reasonably believes the information evidences

a violation of law or rule, mismanagement, a gross abuse of funds, an

abuse of authority, or a substantial and specific danger to public health

or safety.

Iowa Code § 70A.28(2); see also Walsh v. Wahlert, 913 N.W.2d 517, 521 (Iowa

2018) (describing this section of the Iowa code as a “151-word linguistic jungle”). 

-9-
suffered an adverse employment action “in reprisal” for her testimony. Smith v. Iowa

State Univ. of Sci. & Tech., 851 N.W.2d 1, 34 (Iowa 2014). 

We first conclude that Ackerman’s 2014 performance evaluation was not an

adverse employment action. Iowa law generally defines “adverse employment

action” as “an action that detrimentally affects the terms, conditions, or privileges of

employment. [Thus, c]hanges in duties or working conditions that cause no

materially significant disadvantage to the employees are not adverse employment

actions.” Haskenhoff v. Homeland Energy Sols., LLC, 897 N.W.2d 553, 587 (Iowa

2017) (citation omitted). The evaluation stated that Ackerman’s “[p]erformance

consistently fulfills [her] job requirements and expectations” and that she was “doing

the job expected for employees in [her] classification.” Ackerman does not allege

that her evaluation negatively affected her pay or that she would have been entitled

to a pay increase had she received a better evaluation. The review neither changed

Ackerman’s duties or working conditions nor in any way affected the terms,

conditions, or privileges of her employment. 

Assuming that Ackerman’s paid suspension was an adverse employment

action, we conclude that she has failed to put forth evidence demonstrating that either

her suspension or her termination was “in reprisal” for her critical testimony. 

Although the Iowa Supreme Court has not yet defined the in-reprisal-for causal

standard, Ackerman must show at least some traceability between her testimony and

the adverse employment action. Smith, 851 N.W.2d at 34, 36, 38. 

Most of the employees involved in the investigation preceding Ackerman’s

paid suspension were unconnected to her testimony. Semke, who initially discovered

and raised concerns about Ackerman’s insurance certifications, testified that she was

unaware of the Oversight Committee hearings at the time of her discovery and that

she had no pre-existing opinion about Ackerman. Nelson, who signed Ackerman’s

suspension letter, testified that he was not involved in the Oversight Committee

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hearings and had not discussed them with any Workforce Development staff. 

Ackerman has presented no evidence to dispute either Semke’s or Nelson’s

testimony. Moreover, Ackerman presents no evidence that the Administrative

Department’s risk and benefits manager who noted that “discipline may be in order”

for Ackerman’s certifications was connected to Workforce Development or aware of

her testimony.

In her attempt to establish the causation element, Ackerman points to Nelson’s

testimony that he began a misconduct investigation at Wahlert’s direction; Nelson’s

testimony that Wahlert was likely involved in the suspension decision; and the mere

few months separating Ackerman’s testimony and suspension, an interval that appears

to be even shorter because of her month-long FMLA leave. Ackerman, however,

does not dispute Nelson’s testimony that such a suspension was “usual” for an

investigation of this nature. Nor does the proximity of Ackerman’s testimony and

suspension alone create a genuine dispute of material fact that the suspension was in

reprisal for the testimony. Cf. Jasper v. H. Nizam, Inc., 764 N.W.2d 751, 768 (Iowa

2009), as amended on denial of reh’g (Mar. 5, 2009) (“We have said that the timing

between the protected activity and the discharge is insufficient, by itself, to support

the causation element of the tort [of wrongful discharge].”); Lewis v. St. Cloud State

Univ., 467 F.3d 1133, 1138 (8th Cir. 2006) (“We have held that an interval as brief

as two months did not show causation for purposes of establishing a retaliation claim

and that a two-week interval was sufficient, but barely so.” (internal citations and

quotation marks omitted)). Ackerman has thus not presented evidence to show that

the decision to suspend her with pay was anything other than a logical response to

allow time for an investigation. Her possible dishonesty raised concerns about both

her ability to fulfill her ALJ duties in an ethical manner and the public’s perception

of the Bureau. On this record, then, we cannot say that Ackerman’s paid suspension

was causally related to her testimony.

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We likewise conclude that Ackerman has failed to show that her termination

was in reprisal for her critical testimony. Ackerman was terminated following the

investigation into her insurance fraud. The investigation began only after

Ackerman’s insurance renewal efforts and her attempts to change Catherine’s last

name in the company records raised red flags within Workforce Development’s

human resources department. Nelson and other Workforce Development leadership

interviewed Ackerman on multiple occasions, with a union representative present at

each interview. Nelson also interviewed Reynolds and another former state employee

to learn what Ackerman was told when she originally certified Catherine as unmarried

in 2012. Workforce Development staff sifted through extensive documentation,

including an email discussion in which Ackerman told Reynolds that Catherine was

still married but separated from her husband. Workforce Development reasonably

determined from its investigation that Ackerman had fraudulently completed

insurance forms, and it then reasonably decided to terminate her based on her

unethical conduct. Nelson, who led the investigation, was neither affected by nor

involved in the Oversight Committee hearings. Moreover, nothing in the record

shows that the three individuals whom Ackerman had criticized in her

testimony—Wahlert, Lewis, and Hillary—were involved in the decision to terminate

her employment. Wahlert had resigned from Workforce Development during the

pendency of the Ackerman investigation. Lewis and Hillary had no authority to

discipline Ackerman or terminate her employment. 

Ackerman’s arguments that Townsend and Slater retaliated against her by

terminating her employment are unpersuasive. Ackerman avers that Townsend made

the ultimate termination decision, but neither Townsend nor Slater, who was involved

in the investigation and signed the termination letter, was employed by Workforce

Development at the time of Ackerman’s testimony. Ackerman provides no evidence

that her testimony influenced these two newcomers or that they based the termination

decision on anything other than the factual findings of disinterested human resources

employees. Cf. Smith, 851 N.W.2d at 37 (“It is undisputed that Dr. Wickert, a

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newcomer, made this decision based upon information provided by a disinterested

search committee.”). 

We also find unavailing Ackerman’s argument that we should infer reprisal

because she was similarly situated to Lewis yet treated differently. Ackerman argues

that she and Lewis were similarly situated because they both held ALJ positions at

the Bureau, had the same supervisors, and were subject to the same professional and

ethical standards as attorneys. Ackerman further contends that Lewis had engaged

in the “same alleged conduct” involving dishonesty, fraud, deceit, or

misrepresentation, see Iowa R. of Prof’l Conduct 32:8.4(c), but was not subjected to

the same adverse employment actions. Ackerman points to Lewis’s Oversight

Committee testimony, during which Lewis falsely stated in response to a question that

she had “never” secretly taped co-workers. Lewis apparently realized following her

testimony that she in fact had once recorded a co-worker and had therefore

misspoken. According to Wahlert, Lewis told Wahlert that the false statement was

an oversight, and Wahlert promised to clarify Lewis’s testimony. Lewis’s single,

quickly admitted misstatement during her Oversight Committee testimony was not

the equivalent of Ackerman’s repeated misstatements over several years that had

enabled Ackerman to receive the inappropriate benefit of insurance for her married

daughter. 

We thus conclude that Ackerman has not presented evidence from which a

reasonable jury could find that she was suspended or terminated in reprisal for her

testimony.

B. Defamation Claim

Ackerman next argues that neither sovereign immunity nor qualified privilege

applies to her defamation per se claim against Wahlert, which arises from Wahlert’s

Oversight Committee testimony.

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Iowa law recognizes two kinds of defamation, per quod and per se. Bandstra

v. Covenant Reformed Church, 913 N.W.2d 19, 46 (Iowa 2018). To establish a

defamation per quod claim, a plaintiff must prove six elements: “(1) publication,

(2) a defamatory statement, (3) falsity, (4) maliciousness, (5) the statement was of or

concerning the [plaintiff], and (6) a resulting injury.” Id. (citation omitted). 

Defamation per se occurs “when a statement has a natural tendency to provoke the

plaintiff to wrath or expose him to public hatred, contempt, or ridicule, or to deprive

him of the benefit of public confidence or social intercourse.” Id. (citation and

internal quotation marks omitted). When a statement is defamatory per se, “falsity,

malice, and injury are legally presumed.” Id. at 46. 

Tort claims brought against an Iowa state employee acting within the scope of

his employment must be brought pursuant to the Iowa Tort Claims Act. Iowa Code

§ 669.1 et seq.; Dickerson v. Mertz, 547 N.W.2d 208, 213 (Iowa 1996). Under the

Act, a state employee is entitled to sovereign immunity for otherwise defamatory

statements unless they were uttered outside the scope of his employment. Godfrey

v. State (Godfrey I), 847 N.W.2d 578, 583–84 (Iowa 2014); see also Iowa Code

§§ 669.14(4), 669.23. A state employee acts within the scope of employment by

“acting in [his] line of duty as an employee of the state.” Iowa Code § 669.2(1). The

Iowa Supreme Court looks to the term’s common law definition to interpret “scope

of employment” for sovereign immunity purposes:

[A]n act is deemed to be within the scope of one’s employment where

such act is necessary to accomplish the purpose of the employment and

is intended for such purpose. The question, therefore, is whether the

employee’s conduct is so unlike that authorized that it is substantially

different.

Jones v. Univ. of Iowa, 836 N.W.2d 127, 143 (Iowa 2013) (quoting Godar v.

Edwards, 588 N.W.2d 701, 705–06 (Iowa 1999)). Whether an employee was acting

within the scope of his employment is ordinarily a jury question, but the question of

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“whether the act which departs markedly from the employer’s business is still within

the scope of employment may well be for the court.” Godar, 588 N.W.2d at 706.

Ackerman argues that Wahlert acted outside the scope of her employment when

she testified about Department of Labor reviews of Ackerman’s cases. We disagree. 

Wahlert testified before the Oversight Committee in her official capacity as

Workforce Development Director. A senator questioned Wahlert about employee

morale in the organization she led and about the failure of one of Wahlert’s lead ALJs

to treat people professionally. In response, Wahlert offered to “give a little context”

to the senator’s concerns and then testified that the Bureau had received more than

ninety remands, modifications, and reversals from its superior, the Iowa Employment

Appeal Board, in the preceding year. Wahlert then explained that “[e]very single

judge has them” and stated that if the Oversight Committee wanted “dirt on all the

judges [she was] happy to do that.” She provided Ackerman’s Department of Labor

reviews as an example before concluding that “singling out any one judge is probably

inappropriate, I think they all have bad days, just like you have bad days, and I have

bad days.” Wahlert’s use of Ackerman as an example was “necessary to accomplish

the purpose of [Wahlert’s] employment,” see Jones, 836 N.W.2d at 143 (citation

omitted), namely, that of providing context to the Oversight Committee’s concerns

about Workforce Development. Moreover, Wahlert emphasized that the Ackerman

example was offered only for context, because it would be “inappropriate” to single

out any one judge. 

Ackerman argues that Wahlert’s purported direction to Lewis to assemble

negative information about the ALJs prior to Wahlert’s testimony establishes that

Wahlert was not testifying within the scope of her employment. The record evidence

shows that the evening before Wahlert’s testimony, Lewis sent her an email with the

subject line “Reversal Rate Record” and attached a spreadsheet listing ninety-four

decisions by a variety of ALJs that had been either reversed, remanded, or modified

by the Employment Appeal Board. Lewis then sent a second email to Wahlert,

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attaching Lewis’s Department of Labor review of one of Ackerman’s cases.7

 Shortly

thereafter, Lewis sent a third email containing a self-created time line of Workforce

Development’s ongoing organizational problems—dating back to August 2000. 

Lewis copied Hillary, but not their fellow Lead ALJ, on the final two emails. It was

well within the scope of Wahlert’s employment for her to seek and review the

information contained within these emails to enable her to prepare for the testimony

she was to give the next day.

No reasonable jury would find Wahlert’s testimony or related actions “so

unlike that authorized that it is substantially different” from the scope of her

employment. See Jones, 836 N.W.2d at 143. Wahlert was thus entitled to summary

judgment with respect to her allegedly defamatory testimony to the Oversight

Committee. We need not decide whether her statements were also qualifiedly

privileged. 

C. First Amendment Retaliation Claim

Ackerman argues that the district court erred in granting summary judgment

on the basis of qualified immunity to the individual defendants—Wahlert, Hillary,

Lewis, Townsend, and Nelson—on her First Amendment retaliation claim. At

summary judgment, qualified immunity shields such government officials from

liability in a § 1983 action “unless (1) the evidence, viewed in the light most

favorable to [Ackerman], establishes a violation of a constitutional or statutory right,

and (2) the right was clearly established at the time of the violation, such that a

reasonable official would have known that his actions were unlawful.” Blazek v. City

of Iowa City, 761 F.3d 920, 922–23 (8th Cir. 2014) (citing Pearson v. Callahan, 555

U.S. 223, 232 (2009)). Ackerman contends that the alleged retaliation—her paid

7Ackerman’s case received an overall score of eighty-nine percent, but failed

the due process evaluation.

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suspension and termination—violated her clearly established First Amendment right

to free speech. See Morris v. City of Chillicothe, 512 F.3d 1013, 1018 (8th Cir. 2008)

(“[T]he First Amendment restrains the government from retaliating against a public

employee based on the employee’s speech.” (citation omitted)). 

To establish a protected-speech retaliation claim, Ackerman must show:

(1) that she engaged in First-Amendment-protected activity; (2) that the defendants

“took an adverse employment action against h[er]”; and (3) that the “protected speech

was a substantial or motivating factor in [the defendants’] decision to take the adverse

employment action.” Henry v. Johnson, 950 F.3d 1005, 1011 (8th Cir. 2020) (citation

omitted). The parties do not dispute that Ackerman’s testimony before the Oversight

Committee constituted constitutionally protected activity. 

With respect to defendants Lewis and Hillary, we conclude that Ackerman has

failed to present evidence that they took an adverse employment action against her. 

Ackerman admitted that neither woman had authority to discipline or terminate her,

and no evidence suggests that either woman directed an investigation into

Ackerman’s insurance coverage selections, was involved in the investigation, or

contributed to the decisions to suspend and terminate Ackerman. See Hudson v.

Norris, 227 F.3d 1047, 1053 (8th Cir. 2000) (no valid retaliation claim against

defendant against whom plaintiff had made no specific allegations or presented any

evidence).

Again assuming that Ackerman’s paid suspension was an adverse employment

action, we consider whether Ackerman has shown that her critical testimony was a

substantial or motivating factor in the suspension and termination decisions rendered

by Wahlert, Nelson, and Townsend. Although causation is generally a jury question,

we must determine “if sufficient evidence exists to create a factual question for the

jury.” Henry, 950 F.3d at 1014 (citation omitted). To prove causation, Ackerman

must first “show that [s]he suffered an adverse employment action that was causally

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connected to h[er] participation in a protected activity.” Id. (citation omitted). 

Retaliatory motive may be proved through “circumstantial evidence giving rise to an

inference of retaliatory intent,” Williams v. City of Carl Junction, 523 F.3d 841, 843

(8th Cir. 2008), but “more than a temporal connection . . . is required” to survive

summary judgment, see Auer v. City of Minot, 896 F.3d 854, 860 (8th Cir. 2018)

(quoting Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999) (en

banc)). If Ackerman meets this requirement, “the burden shifts to the employer to

show a legitimate, nondiscriminatory reason for his or her actions.” Henry, 950 F.3d

at 1014 (citation omitted). “If the employer establishes such a reason, the burden

shifts back to [Ackerman] to show that the employer’s actions were a pretext for

illegal retaliation.” Id. (citation and internal quotation marks omitted).

To show Wahlert’s retaliatory intent for her paid suspension, Ackerman points

to evidence that Wahlert may have requested negative information about Ackerman

prior to Wahlert’s Oversight Committee testimony, to Ackerman’s 2014 performance

review, and to the three-month time span between Ackerman’s testimony and

suspension. As discussed above, Wahlert’s pre-testimony inquiries were properly

related to that testimony. Ackerman’s 2014 performance review form, on which

Wahlert indicated that Ackerman was meeting expectations, was a neutral review that

had no effect on Ackerman’s employment and is thus not evidence of an otherwise

retaliatory motive. See Spears v. Mo. Dep’t of Corr. & Hum. Res., 210 F.3d 850, 854

(8th Cir. 2000) (annual performance rating of “successful” rather than “highly

successful” not an adverse employment action when it was never used to the

employee’s detriment). Although the three-month interval between Ackerman’s

testimony and her suspension appears to be shorter because of her intervening FMLA

leave, there is nevertheless insufficient temporal proximity to support an inference of

causation. No adverse employment actions occurred during that entire time span.

 Contra Hudson, 227 F.3d at 1051 (a “large number of adverse actions” occurring

“hard on the heels of the protected activity”—i.e., over the course of four

months—created a strong inference of causation).

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Moreover, the intervening discovery by unrelated employees of possible

insurance fraud established an independent, non-retaliatory basis for Ackerman’s paid

suspension. Ackerman presents no evidence that Wahlert directed anyone in

Workforce Development’s human resources department to scrutinize Ackerman’s

personnel file for grounds on which to suspend her. See Kilpatrick v. King, 499 F.3d

759, 769 (8th Cir. 2007) (insufficient evidence to survive summary judgment when

“[t]he bulk of [the plaintiff’s] case . . . rests upon attacks on the credibility of those

officials who asserted legitimate motives for their decisions to [engage in the

allegedly retaliatory action]”). In light of the evidence that Ackerman was suspended

immediately following the discovery of insurance fraud, it is thus unreasonable to

infer that Wahlert obtained negative information about Ackerman in advance of

testifying, waited three uneventful months, and then—only after concerns of potential

misconduct—“finally exercised the opportunity to retaliate.” See id., at 768; cf.

Hudson, 227 F.3d at 1053 (inference reasonable in part because evidence that the

reasons given for certain adverse employment actions were false). There is, at most,

no more than “a simple concurrence of two events here.”8

 See Hudson, 227 F.3d at

1051.

Ackerman also failed to present evidence that her termination was in retaliation

for her critical testimony. As discussed above, decision-maker Townsend was not

employed by Workforce Development at the time of Ackerman’s testimony and was

not the subject of her testimony. Ackerman provides no evidence to dispute

Townsend’s testimony that she never discussed Ackerman with Wahlert. Instead,

Townsend was briefed about Ackerman’s potential insurance fraud by Nelson, who

was unconnected to Ackerman’s critical testimony, and by Slater, who was not

employed by Workforce Development at the time of Ackerman’s testimony. The only

8To the extent Nelson may have been involved in the suspension decision,

Ackerman also has not shown any causal connection to her critical testimony. As set

forth above, Nelson had no involvement in the Oversight Committee hearings and had

not discussed them with anyone at Workforce Development.

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evidence to which Ackerman points is the fact that the termination occurred five

months after her Oversight Committee testimony. This tenuous temporal connection

is insufficient to create a causation question for the jury to decide, however. See

Auer, 896 F.3d at 860 (quoting Kiel, 169 F.3d at 1136). Any “general attacks” on

Townsend’s credibility are likewise insufficient to prove improper motive, and

Ackerman has failed to “identify affirmative evidence from which a jury could find”

that Townsend acted with retaliatory intent. See Kilpatrick, 499 F.3d at 769 (quoting

Crawford-El v. Britton, 523 U.S. 574, 600 (1998)). Given that the discovery of

Ackerman’s insurance fraud “occurred even closer in time” to her termination, “an

obvious alternative explanation for the decision exists” and “there is no basis for

disturbing the district court’s grant of summary judgment.”9 See Auer, 896 F.3d at

860–61.

Assuming, however, that Ackerman has proved retaliatory intent, Ackerman’s

insurance fraud was a legitimate, nondiscriminatory reason for suspending her and

terminating her employment, and she has not shown that these articulated grounds

were pretextual. Evidence of pretext is viewed in light of the employer’s

justifications and may be established by “evidence the employer’s explanation lacked

basis in fact, evidence the employee recently received favorable reviews, evidence the

employer’s proffered reason for its employment decision changed over time, or with

evidence the employer treated similarly situated employees who engaged in the

9We also reject Ackerman’s argument she showed retaliatory intent by

presenting evidence of disparate treatment of Lewis, who Ackerman contends was a

similarly situated employee. As discussed above, Lewis was not similarly situated

to Ackerman. See Henry, 950 F.3d at 1015 (setting forth similarly situated elements). 

The statements of Ackerman’s former supervisors are similarly unavailing, showing

merely that they might have done things differently—not that Workforce

Development management’s actions were retaliatory or otherwise illegal. See Kiel,

169 F.3d at 1136 (“In the absence of any evidence of discriminatory intent, however,

it is not the prerogative of the courts or a jury to sit in judgment of employers’

management decisions.”).

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protected activity more favorably.” Henry, 950 F.3d at 1014–15. Ackerman provides

no evidence that Workforce Development’s set-forth reasons for termination lacked

basis in fact or that its reasons changed over time. Although Ackerman received a

“meets expectations” review shortly before her suspension, this review was

completed before her fraudulent conduct became known to Workforce Development. 

See id. at 1015 (“And although Henry did receive a generally positive review on

January 24, 2015, this review was given before the full extent of Henry’s conduct

became known to [his employer].”).

Because Ackerman failed to establish any constitutional violation, we conclude

that the district court properly granted summary judgment to the individual

defendants. 

D. Intentional Infliction of Emotional Distress Claim

The district court concluded that the Iowa whistleblower statute, see Iowa Code

§ 70A.28, preempted Ackerman’s common law claim of intentional infliction of

emotional distress, and, in the alternative, that she had failed to present sufficient

evidence of outrageous conduct to survive summary judgment on the claim.

Assuming that Ackerman’s claim is not preempted, we consider its merits. To

establish an intentional infliction of emotional distress claim, Ackerman was required

to show, in relevant part, that the defendants engaged in “outrageous conduct.” 

Hedlund, 930 N.W.2d at 723–24 (citation omitted) (setting forth the four elements of

an intentional infliction of emotional distress claim). Iowa law requires “substantial

evidence of extreme conduct,” a standard that “is not easily met, especially in

employment cases.” Id. at 724 (citations omitted); see also Northrup v. Farmland

Indus., Inc., 372 N.W.2d 193, 198 (Iowa 1985) (en banc) (“Liability has been found

only where the conduct has been so outrageous in character, and so extreme in

degree, as to go beyond all possible bounds of decency, and to be regarded as

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atrocious, and utterly intolerable in a civilized community.” (quoting Restatement

(Second) of Torts § 46 cmt. d)).

Viewing the evidence in the light most favorable to Ackerman, the defendants’

conduct was not “sufficiently egregious to satisfy the outrageousness prong” of her

claim. See Hedlund, 930 N.W.2d at 723. Ackerman contends that the defendants

engaged in outrageous conduct by subjecting her to “an entire program . . . intended

to silence her and send a clear message to other potential whistleblowers.” She

focuses on the conduct that she previously argued violated the Whistleblower Statute. 

She points to Wahlert’s Senate testimony, to Lewis and Hillary’s alleged gathering

of negative information about her, and to her suspension and “status as a

whistleblower.” Ackerman also points to the defendants’ reporting her for laterdismissed ethical and criminal violations, as well as to the fact that multiple persons

were involved in these events. Although Wahlert’s testimony may have not been

precisely accurate, it was hardly “beyond all possible bounds of decency.” See

Northrup, 372 N.W.2d at 198. Moreover, as earlier discussed, it was Workforce

Development’s usual practice to place an employee on paid suspension pending the

investigation of similar misconduct. Given Ackerman’s ongoing, repeated

misstatements to obtain inappropriate insurance benefits, it was not unreasonable for

Workforce Development to then refer the matter for potential ethical and criminal

violations. Cf. Hedlund, 930 N.W.2d at 725. We conclude that Ackerman’s other

allegations about workplace conflicts do not rise to the level of outrageous conduct. 

See Vinson v. Linn-Mar Cmty. Sch. Dist., 360 N.W.2d 108, 119 (Iowa 1984)

(employer’s eight-step harassment campaign—although perhaps petty, wrong, and

malicious—not outrageous despite employer accusing plaintiff of falsifying time

records, discharging her for dishonesty, and then reporting the incident to a

prospective employer).

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E. Iowa Constitutional Claim

The district court did not err in granting summary judgment on Ackerman’s

retaliation claim based on the Iowa Constitution’s free speech clause, Iowa Const. art.

I, § 7. We assume without deciding that the Iowa Supreme Court would recognize

such a claim, which is based on the same facts as Ackerman’s First Amendment

retaliation claim. The parties have not identified any meaningful difference between

the state and federal constitutional protections. In light of our holding that Ackerman

has failed to establish a violation of her federal constitutional right to free speech, we

likewise conclude that she has failed to establish a violation of her state constitutional

right to free speech. See State v. Milner, 571 N.W.2d 7, 12 (Iowa 1997) (“[T]he Iowa

Constitution generally imposes the same restrictions on the regulation of speech as

does the federal constitution.”); Des Moines Reg. & Trib. Co. v. Osmundson, 248

N.W.2d 493, 498 (Iowa 1976) (“We believe the federal and state constitutional

provisions, which contain almost identical language, impose the same limitation on

abridgement of freedom of press.”); see also City of W. Des Moines v. Engler, 641

N.W.2d 803, 805 (Iowa 2002) (recognizing that many state constitutions use

“language nearly identical to the Iowa” constitution and that “[a] substantial majority

of the courts in those states have interpreted this free-speech language as being

coextensive with that of the First Amendment to the federal constitution”). 

Conclusion

The judgment is affirmed.

______________________________

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