IN THE COURT OF APPEALS OF IOWA No. 20

- 1467 Filed March 30, 2022

DAVID ALAN FEEBACK , Plaintiff

- Appell ant ,
vs. SWIFT PORK COMPANY, TROY MULGREW and TODD CARL , Defendant s - Appell ees

.

________________________________________________________________ Appeal from the Iowa District Court for Marshall County, Bethany Currie , Judge.

David Feeback appeals the grant of summary judgment on his employment lawsuit

. AFFIRMED IN PART; REVERS ED IN PART , AND REMANDED

.

Bruce H. Stoltze Jr. of Stoltze & Stoltze, PLC , Des Moines , for appellant. Ruth A. Horvatich and Aaron A. Clark of McGrath North PC LLO , Omaha, Nebraska , for appellee s

.

Heard by Bower , C .J. , and Tabor and Chicchelly , JJ.2

TABOR , Judge

. Swift Pork Company fired long

- time employee David Feeback after he sent offensive text message s to a supervisor. In response , Feeback sued , alleging age discrimination , workplace harassment, and wrongful termination

. The district court
gra nted summary judgment fo r Swift 1 on all three claims. Because a genuine issue of material fact exists on the age - discrimination claim, we reverse that part of the judgment and remand . But no reasonable jury could find in Feeback’s favor on the other two claims . So we affirm on the remaining issues

. I. Facts and Prior Proceedings Sixty

- year - old Feeback worked at Swift for over two decades . As m iddle management, he ran the cut floor for years , receiving mostly positive reviews

. Then in 2015, he started to receive negative feedback from his bosses. In May, Feeback broached safety concerns with his direct supervisor, plant manager Todd Carl

. Swift was using worn

- out trolleys to move carcasses on a rail system. Feeback warned: “Due to the wear on the trolle ys, carcasses were sliding back down the incline and falling off the rail.” But Carl grew angry, emphasized the high replacement costs , and e nd ed the conversation

. 2 In a phone call a few weeks later , Feeback reiterated his worry that someone could be hurt by a falling carcass. But like the last time, Carl was unreceptive, hanging up mid

- conversation

.

1 Feeback’s suit named Swift Pork Company, as well as supervisors Troy Mulgrew and Todd Carl. For brevity, we will use the shorthand Swift when discussing all three defendants

. 2 Although Feeback suggests Carl ignored this safety issue, Swift was addressing the trolley problem when Feeback was terminated.3
As Feeback tells it, Carl’s antagonism extended beyond that safety issue. For instance, h e accused Feeback of being “asleep at the wheel” and letting his department run “out of control.” Soon, Feeback also detected hostility from Carl’ s supervisor , general manager Troy Mulgrew. In particular , Feeback recalled that
M ulgrew once interrupted Feeback ’s bathroom break, accusing him of “ fucking around” in there. For a time, tensions eased . But workplace frictions flared again

near the holidays

. In early December 2015 , Feeback skipped a staff meeting, choosing to stay on the short

- staff ed cut floor instead

. That choice angered Mulgrew , who reprimanded Feeback. And, despite approving Feeback’s absence, Carl said nothing

. But New Year’s Eve proved the final straw

. Trying to make up missed safety training sessions, Feeback scheduled a n afternoon meeting for his department

. But Swift often let employe es go early on that date

. Annoyed , Feeback’s crew complained to Mulgrew . The manager intervened, cancelled the meeting , and sent the employees home for the holiday. W hile the crew ’s day was over , Feeback wasn’t so lucky. Instead, Mulgrew called Feeback and C arl into his office where he criticize d Feeback at length. W hen Feeback tried to defend himself, Mulgrew said that “ h e should be sitting there with his mouth shut and arms wide open. ” That night, Feeback sent two text messages to Mulgrew. The first read “FUCK You !” The second, “Believe who and what you want.” Alt hough Feeback later claim ed he meant to send the texts to his friend, Tim Turner, Feeback took no action to explain the alleged mistake to Mulgrew. Upset by the perceived insubordina tion , Mulgrew sent a sc reenshot of the
texts to Pete Charboneau, Swift’s head of human resources. The next morning ,4

Charboneau called Feeback. Feeback admitted sending the texts but told Charboneau that “it was by mistake.” Charboneau asked why Feeback had not “rescinded” the messages; Feeback replied he did not know how. Feeback also testified i n his deposition that he hadn’t explained the mistake to Mulgrew because his meeting with Charboneau happened first thing in the morning. Without further inves tigation, Charboneau s uspended Feeback

. And, a few days later, Feeback was terminated. In May 2018, Feeback sued , alleging age discrimination, retaliation, workplace harassment, and wrong ful termination. As trial neared, Swift moved for summary judgme nt on the age discrimination, harassment, and wrongful termination claims. 3 F inding no genuine issues of material fact , the district co urt granted Swift’s motion

. Feeback now appeals.
II. Scope and Standard of R eview We review grants of summary judgment for errors at law. Smith v. Shagnasty’s Inc. , 688 N.W.2d 67, 71 (Iowa 2004). Like the district court, we view the record in the light most favorable to the nonmoving party. Bill Grunder’s Sons Const. Inc. v. Ganzer

, 686 N.W.2d 193, 196 (Iowa 2004). If the district court correctly applied the law and there was no genuine issue of material fact, we affirm. Id. We consider an issue to be material if its determination affects the suit’s
outcome. Id. And the dispute i s genuine if a reasonable jury could return a verdict for the nonmoving party. Id.

3 Feeback withdrew the retaliation claim before Swift’s summary

- judgment motion.5 “Mere skepticism of a plaintiff’s claim is not a sufficient reason to prevent a jury from hearing the merits of a case.” Clinkscales v. Nelson Sec

. , Inc. , 697 N.W.2d 836 , 841 (Iowa 2005). So particularly in discrimination cases [w] e should approach

. . . with great caution. We should carefully examine the facts and ask ourselves with self

- critical rigor and discipline the following: Have we refused to engage in credibi lity determinations? Have we refused to weigh the evidence? Have we given every legitimate inference of the meani ng of evidence to the nonmoving party? Hedlund v. State , 930 N.W.2d 707, 742 (Iowa 2019) (Appel, J., concurring in part and dissenting in part)

. III. Analysis Feeback advance s three causes of action: (1) age discrimination; (2) harassment ; and (3) wrongful termination

. We take each in turn.
A. Age discrimination Feeback first c laims age discriminat ion provoked his firing . That claim arises under the Iowa Civil Rights Act (ICRA) , which declares that it is a discriminatory practice to discharge any employee because of age , unless based

on the nature of the occupa tion. Iowa Code § 216.6(1)(a) (2015)

. To start, we focus on that “because of age” language, or in other words, causation. T he parties clash over which causation test controls at the summary judgment stage. On on e side, Feeback points to Hawkins v. Grinnel l Reg iona l Med ic al C enter

, 929 N.W.2d 261 (Iowa 2019). There, our supreme court “adopted the motivating

- factor test for causation in ICRA discrimination cases.” Id. a t 2 7 2. On the other side, Swift argues the McDonnell

- Douglas burden

- shifting analysis6

still controls

. See generally McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973). True , Hawkins abandoned the McDonnell

- Douglas test for instructing the jury in a civil rights case. 929 N.W.2d at 272. But the proper standard on summary judgment remains an open question

. S ee Hedlund , 930 N.W.2d at 719 (declining to resolve the ambiguity ); see also Watkins v. City of Des Moines , No. 19

- 1511, 2020 WL 2988546, at *4

– 7 (Iowa Ct. App. June 3, 2020) (conducting both analyses). So we consider both tests.
1. Mc Donnell

- Douglas McDonnell Douglas i nvolves three step s . First, Feeback must establish a prima facie discrimination case

. See 411 U.S. at 802. Then, Swift may rebut that prima facie case by showing “some legitimate, nondiscriminatory reason” for its action. See id. Finally, Feeback must show the offer ed justification was pretext and unlawful discrimination the actual reason for termination. See i d. at 804.
H ere, the first two steps are uncontroversial. When fired, Feeback was over forty and had generally performed satisfactorily on the job

. 4 See V aughn v. Must, Inc. , 542 N.W.2d 533, 538 (Iowa 1996) (describing three requirements of prima facie case)

. F or s tep two, Swift points to the disrespectful texts as a legitimate, nondiscriminatory basis for termination. And now we reach the heart of the dispute : was Swift’s reason for firing Feeback pretextual? Feeback insists harsh language was ingrained in Swift ’s workplace culture

. Because it was s uch a common occurrence , Feeback contends

4 Swift suggests that negative employee reviews existed. But Swift could not produce any records.7

that his profane text could no t be the real reason he was fired . Instead, he asserts his age was the determinative factor

. Supporting this position , Feeback points to a patt ern of older employees being terminated, demoted , or otherwise forced out before retirement

. Swift disagrees with Feeback’s contention , arguing a ny similarly situated employee would have been fired

. G ranted, profanity may have been pervasive at the packi ng plant. But , in Swift’s view, it was not just Feeback’s use of the word “fuck” in his text that led to his firing. It was the insubordination of directing such a verbal assault at one’s super visor that set his case apart

. And Feeback’s singular situat ion aside , Swift argues his pattern evidence should no t be considered. At this stage , we view the facts in the light most favorable to Feeback, making all legitimate inferences in his favor. See Ganzer , 686 N.W.2d at 196. That standard in mind, we believe a reasonable jury could find that Swift used the text message as a pretext to terminate Feeback ’s long

- term employment with the company based on his advancing age. No doubt, insubordination could prompt a termination. But there’s a fact questio n about who Feeback meant to text. As soon as he was confronted by Charboneau , Feeback insisted Mulgrew was an uni ntended recipient. And other evidence arguably support s the mistake theory

. One of the two messages did not make perfect s ense in context. Granted , Mulgrew had rebuked Feeback earlier that day. But the central dispute did not revolve around competing versions of truth. So the second text

— “Believe who and what you want.”

— did not fit with the conversation . Indeed, Mulgrew later agreed the s econd message seemed off and there could have been a “possible” alternative recipient.8

G iven the potential misunderstanding, a reasonable jury may have credited Feeback’s version when presented with Swift’s hasty response. Rather than investigate a possi ble miscommunication , Charboneau suspend ed Feeback on the spot . And within days he was fired. Considering Feeback’s decades with the company, the ax fell with surprising speed. Indeed, during a deposition, Mulgrew admitted the precipitous decision was “concerning” and that he “would expect someone to look” into the situation before acting. What’s more, a text exchange between the supervisors suggested Carl welcomed Feeback ’s rapid departure

. 5 Beyond the possibility that the texts were not intended for Mulgrew and the cursory investigation, there’s the company culture. Swearing was common

. According to Feeback, “ pretty much anything went when it came to language” and he notes over seventy
- five instances when younger employees swore “at or in front of supervisors.” 6 Indeed, Swift doesn’t contest this phenomenon ; Mulgrew agreed

5 After learning that Feeback was suspended, Mulgrew messaged Carl, stating, “F eeback not allowed to work.” Carl replied: “Amen.” 6 Swift launches two attacks on this information. First, it argues the statements were inadmissible hearsay. Second, it contends the other employees weren’t similarly situated. Hearsay first, we agree with the district court: the statements ar en’t offered for their truth. Instead, Feeback offers them to show that the cursing happened. See Iowa R. of Evid. 5.801(c). As for being similarly situated , Swift notes none of those other employees swore at Mulgrew. See Massey

- Diez v. Univ. of Iowa Cmty. Med. Servs., Inc. , 826 F.3d 1149, 1163 (8th Cir. 2016) ( characterizing the similarly situated test as a “rigorous” one which should consider all “relevant aspects”)

. But that fact may not be dispositive. See Anderson v. WBMG

- 42 , 25 3 F.3d 561, 565

– 66 (11th Cir. 2013) (rejecting “proposition that whenever two different supervisors are involved . . . the comparators cannot as a matter of law be similarly situated.”). Indeed, the test may be more malleable than Swift suggests. See, e. g. , Ridout v. JBS USA, LLC , 716 F.3d 1079, 1085 (8th Cir. 2013) ( testing for “comparable seriousness , ” not a “clone”); Lewis v. City of Union City, Georgia , 934 F.3d 1169, 1185 (11th Cir. 2019) (looking for a “convincing mosaic” of evidence that could lead to inference of9

cursing was not unusual in their workplace. In sum, a reasonable jury

— considering the workplace norms, Feeback’s ambiguous intent, and the lack of investigation

— cou ld find the quick termination was pretextual. But was it based on age? Showing pretext alone is insufficient; pretext must be coupled with discrimination. See Reeves v. Sanderson Plumbing Prod s ., Inc. , 530 U.S. 133, 146 (2000) (“It is not enough to dis believe the employer; the factfinder must believe the plaintiff’s explanation of intentional discrimination”) (emphasis original) ( cleaned up ). The district court found no discrimination because Feeback “lack[ed] . . . affirmative evidence that . . . a ge actually played a role in the decision to terminate his employment.” We agree the record cont ains no comments from Carl or Mulgrew revealing discriminatory feelings toward Feeback based on his age. See Hedlund, 930 N.W.2d at 721 ( discussing when

remar ks by decision makers may show influence of discrimina tory feelings on advers e employment action). But Feeback does not need direct proof of discriminatory intent to survive a
summary - judgment motion. A contrived reason for termination is a sign of discrimination. See Smid t v. Porter , 695 N.W.2d 9, 16 (Iowa 2005). 7 “[O] nce the

discrimination); Johnson v. Advoc. Health & Hosps. Corp. , 892 F.3d 887, 895 (7th Cir. 2018) (describing the test as “flexibl e, common - sense, and factual”). In any event, we decline to decide this issue for three reasons

. First, we see th is as workplace culture, not comparator evidence . Second, the district court did not decide this issue. And, third, missing a similarly situated employee isn’t fatal to a discrimination claim

. See, e.g. , Gustafson v. Genesco, Inc. , 320 F. Supp. 3d 1032, 1050 (S.D. Iowa 2018) (denying summary judgment in sex discrimination case in which “Gustafson cannot show she was treated differently from similarly situated male employees” but produced other evidence). 7 S ee also St. Mary’s Honor C t r

. v. Hicks , 509 U.S. 502, 517 (1993) (“[P]roving the employer’s reason false becomes part of (and often considerably assists) the greater enterprise of proving that the real reason was intentional discrimination.”).10

employer’ s justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision. ” Id . (quoting Reeves, 530 U.S. at
147

– 48). In Reeves , the court explained that “ a prima facie case and sufficient evidence to reject the employer’ s explanation may permit a finding of liability .” 530 U.S. at 149. In other words, in appropriate circumstances a plaintiff may create a fact question by showing “the employer is dissembling to cover up a discriminatory purpose.” Id. at 147

. We find such circumstances are present here. In his prima facie case, Feeback asserts Swift has a pattern of demoting, terminating, or forcing out older employees. He believes that, as a sixty

- year - old employee nearing retirement, he was the latest casualty of this practice

. To support t his claim , Feeback relies on an affidavit tracking his observations during his years at Swift

. 8 He describes nine management
- level employees who were “forced out after reaching age fifty

- six.” He also notes Swift’s “high management turnover rate and low retirement rate.” But again Swift challenges the affidavit, arguing its substance would be inadmissible at trial. See Iowa R. Civ. P. 1.981(5) (“ Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters

8 The district court characterized t he affidavit as “self

- serving.” But that characterization suggests a credibility determination

— improper on summary judgment. Even affidavits which prove to be self

- serving may be evidence for the trier of fact to believe or disbelieve. See Bieniak v. Ro mstad , No. 05

- 0432, 2005 WL 1750489, at *5 (Iowa Ct. App. July 27, 2005)

.11

sta ted therein.”). The district court agreed, finding Feeback’s “barebones allegations regarding other employees” cannot be considered. Feeback counters that his information about the fate of those older employees was based on his “personal knowledge of man agement decisions” and “his own observations whether employees were terminated or demoted and how old they were at the time the termination or demotion occurred .” 9 Unlike the district court, w e find Feeback’s affidavit contains “ competent evidence even i f it is not the strongest evidence. ” See Cap. One Bank (USA), N.A. v. Taylor , No. 13

- 2043, 2015 WL 7567398, at *6 (Iowa Ct. App. Nov. 25, 2015) (quoting definition of competence in Black ’

s Law Dictionary (10th ed. 2014) as “a basic or minimal ability to do something; adequate q ualification, esp [ecially] to testify”). Feeback’s awareness of what was happening in h is workplace offered more than conjecture

. Contrast Wemett v. Schueller , 545 N.W.2d 1, 3 (Iowa Ct. App.1995) (determining affidavit based on mere speculation could not avoid summary judgment). All nine people who Feeback mentions stopped working for Swift after reaching their late fifties. A jury could find this evidence persuasive on his discrimination claim. We conclude Feeback’s affidavit set forth specific facts , based on his personal knowledge of events in his workplace , showing there is a genuine issue of material fact for trial, as required to defeat a motion for summary judgment

. See Iowa R. Civ. P. 1

. 981 ( 5 ).

9 The following example is representative: “In approximately 2009, Ms. Hughlette, Human Resources Manager, was terminated. She was approximately fifty

- six years old.”12

2. Motivating Factor We next consider the motivating

- factor test

. Under this test, the plaintiff ’ s protected characteristic must be a motivating factor in the adverse employment decision. Hawkins , 929 N.W.2d at 270

. The motivating

- factor standard is more easily met than the McDonnell Douglas test because Feeback need not show Swift’s rationale for his firing was pretextual. S ee Quigg v. Thomas Cnty

. Sch. Dist. , 814 F.3d 1227, 1240 (11th Cir. 2016) (describing “ McDonnell Douglas ’s pitfall of demanding that employees show pretext” as “unnecessary” under motivating factor test)

. We find a triable issue of materia l fact under the motivating

- factor test. Feeback offered evidence that he was “ostensibly terminated” for his profane text,
whil e younger employees faced n o repercussions for swearing in the workplace.
T hat disparate treatment, viewed together with the lack of investigation into the intended recipient of his texts, could convince a reasonable jury that Swift fired Feeback because of his age. Thus, we reverse the grant of summary judgment on Feeback’s age discrimination claim and remand for trial.
B. Workplace Harassment Feeback next claims Swift hosted a hostile

- work environment. To succeed, Feeback must prove the se elements: (1) m embership in a protected group; (2) unwelcome harassment; (3) b ecause of that group membership; (4) which impact s a term, condition, or privilege of employment. See Haskenhoff v. Homeland Energy Sols

. , LLC , 897 N.W.2d 553, 571 (Iowa 2017). To satisfy t he fourth element , Feeback must show his workplace was “ permeated with discriminatory intimidation, ridicule, and insult sufficiently severe or pervasive to13

alter the conditions ” of his employment and “ create an abusive working environment.” Id. In considering this standard , we weigh : (1) the conduct’s frequency; (2) its severity; (3) whether the conduct was physical ly threatening or humiliating or merely offensive; and (4) whether the conduct unreasonably interfered with job performance. Farmland F oods, Inc. v. Dubuque Hum. Rts. Comm’n , 672 N.W.2d 733, 744 (Iowa 2003)

. The summary

- judgment record includes several incidents that Feeback considers harassing

— s ome by Carl, some by Mulgrew

. For instance, Carl once criticized Feeback’s management skil ls, claiming he was “ sleeping at the wheel

. ”
A nother time , Carl hu ng up while Feeback voiced safety concerns

. And finally, Carl stood silent while Mulgrew reprimanded Feeback for missing a meeting

— despite Carl excusing the absence. Turning to Mulgrew, Feeback asserts that the general manager tw ice said the word “fuck” around him , including once while he was on a bathroom break. But even viewing Feeback’s evidence in the most favorable light , we cannot find the offending conduct was pervasive or severe

. 10 First, the isolated instances happened over seven months. Second, the conduct was not menacing

. Third, it was not physically threatening

. And f ourth, the inciden ts did not impact his job performance

. On this record , th e grant of summary judgment wa s proper. C. Wrongful termination Third and finally, Feeback alleges wrongful termination. He claims his firing was retaliatory, a response to his complaints about the unsafe trolley system

. To

10 Feeback’s counsel acknowledged at oral argument that this claim was not as strong as the age

- discrimination cause of action.14

prevail on this c laim, Feeback must establish : (1) he engage d in a protected activity; and (2) suffered adverse employment action; (3) because of that activity

. See Teachout v. Forest City Cmty. Sch. Dist. , 584 N.W.2d 296, 299 (Iowa 1989). Swift focuses on the third element: causation

. 11 For a retaliatory discharg e claim, the causation standard is higher than for a civil rights claim. Id . at 301. Unlike the motivating

- factor test for age discrimination, Feeback must show his protected activity was the determinative factor in his termination. See Rivera v. Woodwa rd Res. Ctr. , 865 N.W.2d 887, 893 (Iowa 2015). But it “need not be the main reason behind the decision.” Smith v. Smithway Motor Xpress, Inc. , 464 N.W.2d 682, 686 (Iowa 1990). Rather, the determinative factor is “the reason which tips the scales decisively one way or the other.” Id. We understand that causation and motive questions are generally best left for resolution by a jury

. See Fitzgerald v. Salsbury Chem. , Inc. , 613 N.W.2d 275, 289 (Iowa 2000). But s ummary judgment is proper if the plaintiff fails to link the protected activity to the firing. See Phipps v. IASD Health Serv. Corp. , 558 N.W.2d 198, 203 (Iowa 1997) . That was the case here. First, seven month s elapsed between Feeback’s last

- voiced safe ty concern and his termination. Second, when Feeback was fired, Swift was updating the trolley system to address the concerns.
T hird, the record lacks evidence Charboneau was aware of Feeback’s complaints.

11 Swift argued in the d istrict c ourt that Feeback’s safety complaints did not “amo unt to a defined and well

- recognized public policy and that Carl and Mulgrew cannot be held individually liable for wrongful termination. ” On appeal, Swift contends we need not reach those issues if we find Feeback’s comments about the trolleys were not the reason he was fired.15

Given these circumstances, n o reasonable jury could find Feeback’s safety alerts tipp ed the scales toward termination. To recap, we affirm the district court’s grant of summary judgment on the hostile

- work

- environment and wrongful

- termination causes of action. But we reverse on the age

- discri mination claim, remanding that cause of action for further proceedings. AFFIRMED IN PART; REVERSED IN PART , AND REMANDED

.