United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 08-3484

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Wyatt Yon, *

*

Plaintiff - Appellant, *

* 

v. * Appeal from the United States

* District Court for the Southern

Principal Life Insurance Company; * District of Iowa.

Principal Financial Services, Inc., *

doing business as Principal Connection, *

*

Defendants - Appellees. *

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Submitted: May 14, 2009

Filed: May 14, 2010

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Before WOLLMAN, JOHN R. GIBSON, and MURPHY, Circuit Judges.

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JOHN R. GIBSON, Circuit Judge.

Wyatt Yon appeals from the district court’s entry of summary judgment in this

employment discrimination case. Yon began working as a sales counselor for

Principal Life Insurance Company in 1998 and continued in that position until his

employment was terminated in 2005. His complaint alleges that he was wrongfully

terminated in violation of Iowa public policy, the Fair Labor Standards Act, the

Family Medical Leave Act, and the Iowa Wage Payment Collection Act. He appeals
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The Honorable Ronald E. Longstaff, United States District Judge for the

Southern District of Iowa.

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only that portion of the district court’s1

 order which grants summary judgment on the

count alleging violation of Iowa public policy. We affirm.

I.

Yon was hired in 1998 by Principal Life Insurance Company (“Principal”),

where he handled incoming customer calls in the company’s Des Moines call center

as a sales counselor. Sales counselors at Principal do not answer the calls initially.

Instead, operators ascertain certain information and route the calls using a software

system that generally matches the caller’s account balance with the corresponding

level of counselor. Higher level counselors typically receive calls from customers

whose accounts have higher values, while lower level counselors receive calls from

customers with service requests and those who have smaller balances.

Yon’s primary duty as a sales counselor was to retain within the company the

assets of participants in employer-sponsored retirement plans who had retired or were

otherwise eligible to roll over the funds from those plans to an Individual Retirement

Account (“IRA”). Sales counselors offered customers the choice of leaving their

assets in the Personal Retirement Account of the former employer’s plan or using

those assets to purchase a retail IRA. Either option kept the assets within the

company, as Principal continued to manage the Personal Retirement Account assets

and sold its own IRAs. Principal established sales goals for its sales counselors, and

during Yon’s employment Principal changed the formula for calculating credit for the

product the customer chose. In 2002, Principal began rewarding more favorably those

sales counselors who sold more of the retail IRAs because the higher management

fees for that product generated more profit.
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 In addition, sales counselors were also rewarded for selling various investment

products to customers for assets the customers held elsewhere. The counselors would

recommend products based on the customer’s needs as determined by answers the

counselors received to questions they asked over the telephone.

Yon encountered some difficulties as a Principal employee. He was first

subject to discipline in 1999. In March of that year, Principal gave him a written

warning for failing to follow the company’s parking policy. Nine months later, Yon

was placed on final warning because of a customer complaint. In July 2001, Yon was

placed on a Performance Improvement Plan by his manager, Dean Schmitz, because

of problems with customer communications and workplace behavior. Yon met the

expectations set forth in this Performance Improvement Plan, and Principal took no

further action. Yon was placed on a new Performance Improvement Plan in January

2003 because of situations in which he put Principal at financial risk in the way he

handled transactions with customer accounts. Those were apparently isolated

instances. However, on May 7, 2003, Yon received a written update to the January

Performance Improvement Plan during a meeting with Schmitz and Mark Spencer, the

assistant sales manager. They informed Yon that his sales production results had

raised concerns and that he could be formally disciplined or have his employment

terminated if the results did not improve. The Performance Improvement Plan

included sales goals for May and June.

Yon responded the next day with a memo in which he, too, expressed concern

about deficiencies in his sales production and stated that he found the goals fair and

acceptable. He also raised the issue of call routing, stating that higher value sales calls

were being routed to certain favored counselors and questioning whether Principal

was using selective call routing. Schmitz and Spencer met with Yon on May 21 to

address his concerns. They explained that he could monitor his sales figures daily and

discussed the call routing system with him, giving him a spreadsheet that showed

statistics for a number of comparable sales counselors. During that meeting, Yon
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Yon requested and was approved for intermittent leave under the Family

Medical Leave Act from May 27 through August 27, 2003, to care for his father.

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expressed the opinion that males over forty years of age were the only employees

Principal was placing on Performance Improvement Plans. Schmitz relayed Yon’s

comment to the company’s Human Resources Department; the Department

investigated and concluded otherwise.

On July 14, 2003, Yon received a written warning that he had not met the sales

expectations set forth in the May 7 Performance Improvement Plan. Yon responded

with a memo that same day, informing Schmitz that he had filed a claim under the

Iowa Wage Collection Act and that Principal could not discriminate against him or

terminate his employment because of that claim. He further discussed the calculation

of his sales numbers and pointed to ways in which his performance was improving.

That improvement must have continued, as Yon received notice on October 24, 2003

that he had met the expectations set forth in the July14 warning. However, that did

not lay the matter to rest. On November 23, 2003, Yon sent a memo to the United

States Department of Labor complaining that the July 14 warning violated his rights

under the Family Medical Leave Act (“FMLA”).2

 He also sent a copy of this memo

to his supervisors, asking that they expunge the warning letter from his personnel file

and communicate with his attorney about his FMLA allegations. Principal’s counsel

responded to Yon’s attorney, but the company did not remove the letter from his file.

In April 2004, Yon exchanged a series of emails with some fellow employees

about problems arising from a misdirected customer contribution. His language

offended a recipient who complained about it, resulting in Yon being called to a

meeting where supervisors advised him to be more careful in his communications. He

responded by saying that he would “pussyfoot around” in future messages. Another

incident occurred three months later in which he addressed fellow employees in what

they deemed to be a harsh and unprofessional manner. A supervisor counseled him
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again about the need to communicate without offending people, and told Yon that the

supervisor “cannot spend . . . time following up and smoothing things out because of

[Yon’s] offensive communication.” Within the month, Yon caused a stir by sending

his supervisors an email in which he criticized the allocation of voicemail accounts

to employees. His email used sarcastic and accusatory language. This series of

incidents resulted in Yon receiving another written warning on September 8, 2004, in

which he was told that his behavior would be monitored for six months to ensure that

he communicated appropriately and professionally. The warning concluded:

You are required to meet the expectations outlined in this memo and

follow all policies in the employee handbook and your leader’s work

rules. Further incidents of sub-standard performance, including but not

limited to: violation of company policy or leader work rules, use of

profanity, unprofessional conduct, failure to meet job requirements, lack

of dependability, insubordination, lack of team work or other

inappropriate behavior or conduct can result in further disciplinary action

up to and including termination of your employment.

During the September 8 meeting in which Yon received this warning, he

delivered to his supervisors a copy of a letter he had written the day before to the U.S.

Department of Labor. In it, Yon described what he believed were “several persistent

and reoccurring procedural mistakes” in transactions affecting the retirement accounts

of Principal customers. He suggested that the Department of Labor take a number of

specific actions to protect those plan beneficiaries. The record does not reveal

whether the Department of Labor responded to his letter, but Principal undertook an

internal investigation and ultimately concluded that it was not engaging in procedural

errors that adversely affected participants.

Yon asserts that his calls containing sales opportunities plummeted following

this September 8 meeting. He did not meet his minimum productivity standards for

August, September, or October, and as a consequence he received another written

warning during a November 11 meeting. Yon received specific three-month sales
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expectations and also lost his eligibility to receive sales calls valued at $100,000 or

more. Yon refused to sign his written warning because he thought it impossible to

meet the sales expectations it contained. In his view, Principal was manipulating the

calls he received such that he would not have an opportunity to meet the company’s

goals.

Yon received his next and final warning on February 9, 2005, because he failed

to meet the most recent three-month sales minimum. He acknowledged the accuracy

of the numbers but again refused to sign the warning. When Principal reviewed Yon’s

sales numbers in early April, he had not met the expectations set forth in the final

warning. On April 13, 2005, in a meeting with Schmitz and a human relations

employee, Yon’s employment was terminated. Yon acknowledged that he had not

quite made the sales goal set forth in his final warning, and he later testified that he

was not surprised by the termination.

Yon filed a petition in Iowa District Court alleging that he was wrongfully

terminated in violation of Iowa public policy, the Fair Labor Standards Act, the

Family and Medical Leave Act, and the Iowa Wage Payment Collection Act.

Principal removed the action to the U.S. District Court and ultimately moved for

summary judgment. The district court entered summary judgment for Principal on all

counts. Yon appeals the order only as to the claim that he was wrongfully terminated

in violation of Iowa public policy. 

II.

We review de novo the district court’s summary judgment order, using the same

standard the district court used. McClure v. Am. Family Mut. Ins. Co., 223 F.3d 845,

853 (8th Cir. 2000). Summary judgment is appropriate only when no genuine issue

of material fact exists, and the moving party is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56(c). Although we view the facts and inferences in the light most
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favorable to Yon, the non-moving party, he has the obligation to come forward with

specific facts showing that there is a genuine issue for trial. See Matsushita Elec.

Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).

Yon was an at-will employee of Principal. Although his status meant that

Principal could terminate his employment at any time without reason, Fitzgerald v.

Salsbury Chem., Inc., 613 N.W.2d 275, 280 (Iowa 2000), Iowa recognizes an

exception to the at-will doctrine for discharges in violation of public policy. Id. at

281. Under Iowa law, a plaintiff who brings a claim of wrongful discharge in

violation of public policy must prove: 1) the existence of a clearly-defined public

policy that protects an activity; 2) that being discharged from employment would

undermine the policy; 3) the plaintiff was discharged as a result of participating in the

protected activity; and 4) no other justification existed for the termination. Lloyd v.

Drake Univ., 686 N.W.2d 225, 228 (Iowa 2004). The protected conduct must be the

determinative factor in the decision to terminate the employee, as concluded by a

reasonable fact-finder. Fitzgerald, 613 N.W.2d at 289.

As the district court noted, there is no dispute with respect to the first two

elements. Iowa public policy protects Yon’s right to complain about violations of

ERISA and the FMLA, and that right would be undermined if Yon’s criticism was met

with firing. The parties disagree over the last two factors. Principal asserts that Yon

was discharged because he failed to meet the minimum productivity standards for

sales counselors and not because of his protected activity. Yon argues that Principal

made it nearly impossible for him to meet those standards by manipulating his sales

calls so that he would receive fewer and less productive calls, and that his supervisors

pushed him out of the department in which he worked by continually asking him if he

was ready to move on.

The district court concluded that Yon did not create an issue of fact as to what

caused Principal to discharge him. Considering the facts in the light most favorable
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to Yon, the district court found nothing in the record “[o]ther than mere conjecture”

that Principal was manipulating Yon’s sales calls in reaction to his complaints to the

Department of Labor. Yon submitted affidavits from former co-workers who

criticized Principal’s call routing system, but the district court determined that their

conclusory allegations do not set forth additional facts in support of Yon’s claim.

Finally, the district court found no support in the record for Yon’s allegation that he

was subjected to an escalation of adverse actions in response to his complaints. Yon

was subject to discipline in 1999 and 2001 and three more times in 2003 before he

lodged a complaint with the Department of Labor alleging that Principal was violating

the FMLA. His later incidents of discipline were attributable to his workplace

behavior and to his failure to meet sales goals, the same themes as his earlier

instances.

Yon urges us to reverse the judgment because there are legitimate questions of

fact concerning what he asserts is the real reason Principal terminated his

employment. He contends that Principal “set him up to fail” and that his theory is

bolstered by the way in which the company discussed with him his opportunity to

move out of the department after his second complaint to the Department of Labor.

 Our task is to determine whether a reasonable fact finder could conclude that Yon’s

complaints were the determinative factor in his dismissal. We are mindful that the

causation standard Yon must meet is high, Fitzgerald, 613 N.W.2d at 289, and that,

under Iowa law, proof that Yon was terminated after he complained to the Department

of Labor is by itself insufficient to generate a fact question. See Phipps v. IASD

Health Servs. Corp., 558 N.W.2d 198, 203 (Iowa 1997).

Yon points to the affidavits of two former co-workers who question the fairness

of Principal’s call routing system. He argues that they support his contention that he

received fewer legitimate sales opportunities than other sales counselors. However,

the affidavits contain nothing more than their subjective beliefs about the system as

a whole, and neither makes mention of Yon. The affidavits add no admissible
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evidence to create a question of fact. Moreover, Yon conceded that he did not meet

the sales expectations set forth in his November 11, 2004 warning and in his February

9, 2005 final warning. Although his sales had increased after he received earlier

warnings about his productivity, his numbers declined again in August 2004. Yon

remained below his minimum productivity standards for two consecutive three-month

periods. The warning Yon received on September 8, 2004 was for inappropriate and

unprofessional behavior, and it was during this meeting that he informed his

supervisors of his second Department of Labor complaint. By that time, however, his

sales had already declined below the minimum expected of him.

 During the September 8 meeting, Yon also stated that he believed his sales

were down because Principal was managing his call flow. His complaint that day

undermines the position he now takes, which is that his call flow was adversely

affected in retaliation for his second complaint. 

Our review of the record yields the same result as that reached by the district

court. Yon has not provided adequate proof of causation. Accordingly, we need not

address Principal’s argument that Yon’s wrongful termination claim is preempted.

The district court’s summary judgment order is affirmed.

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