IN THE SUPREME COURT OF IOWA

No. 12–0292

Filed August 23, 2013

PHILLIP E. JONES,

Appellant,

vs.

UNIVERSITY OF IOWA; THE BOARD OF REGENTS FOR THE STATE 

OF IOWA; SALLY MASON, President of the University of Iowa and 

Individually; and 

THE STOLAR PARTNERSHIP, LLP,

Appellees.

Appeal from the Iowa District Court for Johnson County, Fae E. 

Hoover-Grinde, Judge.

Former employee appeals from the district court’s denial of his 

motion to compel discovery and the district court’s grant of summary 

judgment in favor of the defendants on his claims of wrongful 

termination of employment and related causes of action. AFFIRMED.

David J. Dutton, Cheryl L. Weber, and Erin Patrick Lyons of 

Dutton, Braun, Staack & Hellman, P.L.C., Waterloo, for appellant.

Thomas J. Miller, Attorney General, and Jeffrey C. Peterzalek and 

Jordan G. Esbrook, Assistant Attorneys General, for appellees University 

of Iowa, The Board of Regents for the State of Iowa, and Sally Mason.
2

Gregory M. Lederer and Megan R. Dimitt of Lederer Weston Craig 

PLC, Cedar Rapids, for appellee Stolar Partnership, LLP.
3

ZAGER, Justice.

Phillip E. Jones, dean of students and vice president of student 

services at the University of Iowa, was terminated from his employment 

by University of Iowa President Sally Mason. This employment decision 

was based partially on a report from the Stolar Partnership (Stolar), a law 

firm retained by the Board of Regents for the State of Iowa (Regents), to 

investigate the University’s response to a sexual assault of a student–

athlete by other student athletes.

Jones sued the University of Iowa, Mason, the Regents, and Stolar 

for wrongful termination and related causes of action. The district court 

granted summary judgment to all the defendants on all claims. Jones 

appealed, and we retained the appeal.

Jones asserts the district court committed error when it denied his 

motion to compel discovery of hundreds of communications, which the 

defendants claimed were privileged. Jones also claims the district court 

erred when it concluded the attorney general’s certification that Mason 

acted within the scope of her employment was conclusive on this issue. 

Finally, Jones contends the district court erred when it granted summary 

judgment to all of the defendants on his various claims. For the reasons 

set forth below, we affirm the rulings of the district court.

I. Background Facts and Proceedings.1

On September 23, 2008, Jones was terminated from his 

employment as dean of students and vice president of student services at 

the University of Iowa. Jones had been dean of students since about 

1981. He did not have a written contract of employment with the 

 

1Because we are reviewing the district court’s grant of summary judgment, we 

set forth the facts in the light most favorable to Jones, the nonmoving party. Rivera v. 

Woodward Res. Ctr., 830 N.W.2d 724, 727 (Iowa 2013).
4

University, and the parties agree that he was an at-will employee. Jones 

reported directly to Mason, president of the University. In his position as 

dean of students, Jones oversaw a comprehensive array of University 

student services, including residence life, the Iowa Memorial Union, 

disciplinary processes, student government, and numerous other 

departments and functions of the University. He was the administrator 

of the Code of Student Life and related policies and regulations governing 

students. Mason terminated Jones’s employment after reviewing a report 

prepared by Stolar, which was critical of Jones’s handling of an alleged 

October 2007 sexual assault of a female student–athlete perpetrated on 

her by two members of the University football team. The assault 

occurred at a University dormitory in the early morning hours of October 

14, 2007.2

On the morning of October 15, Fred Mims, associate athletic 

director for student services, advised Jones’s office by telephone of the 

alleged sexual assault. Mims had been contacted by the head coaches of 

both the victim and the perpetrators, and had discussed the incident 

with Gary Barta, the University’s athletic director. Jones learned directly 

of the incident later that day when Steve Parrott, director of university 

relations, advised him and Marcus Mills, general counsel for the

University, of “an incident or . . . a sexual assault in a residence hall” 

that had occurred over the weekend. Jones did not take any action as a 

result of this information. During the next several days, the department 

of athletics (DOA) commenced an informal investigation into the incident. 

DOA met with the victim and her father, the alleged perpetrators, and 

otherwise attempted to handle the incident on an informal basis. This 

 

2One of the football players was ultimately convicted of assault with intent to 

commit serious injury, the other of simple assault.
5

was purportedly pursuant to the direction of the victim and her father. 

This informal investigation also involved many additional members of the 

university community.

Jones discussed the incident with Mims on October 18 and 19. By 

that time, the football players had been suspended from the football 

team. In their discussions, Jones expressed concern about “double 

jeopardy” in further action involving the football players. Mims explained 

the alleged perpetrators had been suspended for team rule infractions for 

withholding information from the team coach, not due to the allegations 

of sexual assault which were governed by the Code of Student Life. It 

was determined the alleged perpetrators should be informed of the 

possibility of further action in writing.

On October 19, Mims again contacted Jones to discuss the 

incident and how Jones’s office planned to proceed. Jones expressed 

concern about the handling of the investigation and stated that the 

incident should be reported to the Office of Equal Opportunity and 

Diversity (EOD)—the University’s administrative department designated 

to investigate complaints of sexual assault. At the conclusion of this 

conversation, Jones discussed the situation with his associate dean, Tom 

Baker. Jones’s assessment was, “[W]ell, let’s see if we get a complaint. 

When we get a complaint, then we can do something. Otherwise, all 

these rumors, we can’t do very much with them.”

On October 23, DOA decided that all notes and investigative 

interviews gathered as part of its informal investigation should be 

finalized and a report turned over to the office of EOD, the office of 

student affairs, and the general counsel. Jones received his copy of the 

report late that morning or early afternoon. Jones scanned through the 

documents, but because it did not contain a formal, signed complaint, he 
6

elected to place the report in a general disciplinary file. Jones did not 

call EOD, contact Mims, contact the victim, or take any other action at 

that time.

As a result of the DOA report, the EOD commenced a formal 

investigation. While this formal investigation was proceeding, the victim 

and her parents contacted several university officials in an attempt to 

obtain information regarding the status of the investigation. During this 

time, the victim was subjected to continued harassment and retaliation 

from members of the football team, as well as other student–athletes. 

This included physical threats and verbal insults in the dormitory dining 

area in the building where the assault allegedly occurred, and where she 

still resided.

Due to the continued harassment, and general dissatisfaction with 

the University’s response to the incident, the victim filed a criminal 

complaint with the University Department of Public Safety on 

November 5. She also reported the assault to the Johnson County 

Attorney, who charged and prosecuted the two football players. Around 

this time the victim first learned of the second perpetrator who allegedly 

assaulted her while she was unconscious. Upon learning of his identity, 

she realized this individual was living down the hall from her.

On November 13, at the direction of Mills, the victim’s mother 

contacted Jones to discuss the continuing harassment and the victim’s 

housing situation. During this conversation, Jones indicated to the 

victim’s mother that he “had nothing” on the incident, and he did not 

know who she (the mother) was. Jones also indicated that without a 

complaint, specific information, or credible allegations sent to his office, 

he was unable to take action.
7

On November 15, EOD completed a formal written report of its 

findings pursuant to its investigation.3 The next day, Jones met with 

Chuck Green, director of public safety for the University, as well as the 

victim, the victim’s mother, and a rape victim advocate. At that meeting, 

the victim requested that she be released from her housing contract, a 

request which Jones granted. The victim also provided Jones with the 

names of several student–athletes who she claimed had subjected her to 

harassment. Jones subsequently sent letters to those individuals 

notifying them of the University’s anti-retaliation policy. However, the 

letters did not inform these individuals that they had already been 

accused of conduct in violation of the Code of Student Life. Jones did 

not initiate any in-person contact with these individuals. He had no 

additional contact with the victim or her family and did not take any 

other action with respect to the alleged assault.

Also on November 16, the Regents asked their general counsel, 

Tom Evans, and their acting executive director, Andrew Baumert, to 

conduct an investigation into the University’s compliance with University 

policies and procedures in responding to the sexual assault complaint. 

While this investigation was occurring, the victim’s parents wrote two 

letters to various University officials sharply critical of the University’s 

handling of the incident. The first letter was written on November 19, 

2007, and the second letter was written on May 16, 2008. The second 

letter stated, in part:

My purpose in writing is to address the failings of your 

system and the effects those failures have had on [the 

 

3This report was not disseminated to anyone at this time because on November 

14, 2007, the Johnson County Attorney obtained an order to issue a subpoena duces 

tecum to the EOD. The order also instructed the EOD not to divulge any information 

contained in the materials released pursuant to the subpoena or any information about 

the investigation itself.
8

victim]. . . . I include Dean Jones because he told [the 

victim] and me in person that [the victim] would be protected 

by him and his office for the duration of the year. That did 

not happen. [The victim] was taunted, heckled, harassed for 

the entire school year. . . .

Jones received both letters, read them line by line, and placed them in a 

general file without taking any additional action. No one within the 

University turned these letters over to the Regents.

After Evans and Baumert’s investigation, a report was submitted to 

the Regents on June 11, 2008. Evans and Baumert concluded:

After a comprehensive review of the facts of the alleged 

incident and each of the applicable University policies, it is 

clear that University officials fully complied with internal 

procedural requirements. The University fully explained the 

various reporting options to the alleged victim, conducted 

investigations as required, offered the victim appropriate 

accommodation and expressed full support for the victim 

regardless of the option which she elected to pursue.

In June 2008, Jones informed Mason that he intended to retire in 

June 2009. Mason agreed to accept his resignation but requested Jones 

not make the decision public at that time so that he would not appear to 

be a “lame duck.” Jones agreed to Mason’s request. During this 

conversation, Jones also expressed to Mason his intention to become a 

higher education consultant after his retirement from the University.

The Regents learned of the two letters written by the victim’s 

parents when the letters became public in mid-July. On July 22, the 

Regents convened a special meeting and established an advisory 

committee to address two issues:

1. Reopen the investigation of the University of Iowa’s 

handling of the alleged sexual assault on a female student 

on the morning of October 14, 2007, including but not 

limited to:

a. Using the June 12 Board’s General Counsel’s report as 

a starting point, conduct a review of all actions taken by 
9

University personnel in response to the alleged assault 

from October 14, to the present;

b. Assess whether the University’s policies and procedures 

were followed;

c. Evaluate each of the charges advanced in the November 

and May letters from the alleged victim’s mother to the 

University; and

d. Recommend any policy changes or other actions 

determined to be appropriate.

2. Examine the circumstances around the decision not to 

disclose to the Board of Regents the existence of the 

November and May letters, how the decision was made, 

and on what basis. Again, the Advisory Committee is to 

recommend any policy changes or other actions 

appropriate.

The committee was also authorized to “hire outside counsel as needed.”

An agreement for special counsel was entered into between the 

Regents and Stolar, and in late July, Stolar began its investigation. The 

special agreement authorized Stolar to conduct the following activities:

(1) Review[] the specific allegations contained in the 

November 19, 2007, and May 16, 2008, letters written by the 

alleged victim’s parents;

(2) Conduct[] personal interviews with the alleged victim and 

her parents;

(3) Conduct[] personal interviews of University students, 

officials and personnel, including, but not limited to, those 

who had been involved in past investigations of the incident;

(4) Interview[] persons with expertise in the areas of sexual 

violence victims’ advocacy and rights;

(5) Analyze[] the reasons all relevant documents were not 

provided to the Board of Regents during its prior 

investigation of the incident;

(6) Review[] all current applicable University policies and 

procedures, including sexual assault and sexual harassment 

policies;

(7) Review[] such policies and procedures in conjunction with 

applicable state and federal laws and regulations;
10

(8) Evaluate[] the impact of relevant laws and court orders 

upon the University’s response to the incident; and

(9) Review[] past investigations and recommendations of 

sexually related complaints and incidents at the University.

As part of its investigation, Jones and numerous other officials at 

the University were interviewed. Stolar also reviewed University policies 

and procedures, provisions of the Family Educational Rights and Privacy 

Act (FERPA) and its federal regulations, provisions of the Health 

Insurance Portability and Accountability Act (HIPAA), provisions of the 

Clery Act and its federal regulations, and relevant Iowa statutes.

On September 18, Stolar’s report was provided to the Regents and 

various members of the university community, including Jones. The 

report was not made public at that time. The report evaluated the 

response to the incident by University departments and personnel and 

included: “(i) an assessment of whether relevant University policies and 

procedures were followed; (ii) identification of problems or concerns with 

existing policies and procedures; and (iii) preliminary recommendations 

regarding changes to policies and procedures.” The report, which was 

highly critical of Jones, contained the following statements regarding his 

handling of the sexual assault allegation:

The investigation confirmed that while Jones told the 

Student-Athlete’s mother on November 13 that he “had 

nothing” on the alleged sexual assault and that he did not 

know her name or her daughter’s name, Jones (a) was 

informed of the incident by Fred Mims on the morning of 

October 15, (b) had other conversations with Fred Mims 

during the first week after it occurred, and (c) had received a 

report on the incident from the Department of Athletics on 

October 23. Jones failed to give the Investigators any 

satisfactory explanation for this misstatement.

. . . .

. . . Jones was aware of the allegations against Football 

Player #1 on October 15. He was aware of the allegations 

against Football Player #2 by October 23 when he received 
11

the Department of Athletics’ report on the incident. At no 

point did he exercise his interim sanction power to remove 

either one of them from the dormitory they shared with the 

Student-Athlete. When the Student-Athlete was finally 

informed of the involvement of Football Player #2 on 

November 9, she realized that he had been living down the 

hall from her in a female student’s room for three weeks.

. . . .

. . . The Office of the Vice President for Student Services and 

Dean of Students also failed in its responsibilities to the 

Student-Athlete. While Phillips Jones’ failure to act did not 

technically violate the “letter” of the University’s policies and 

procedures, his inaction was fundamentally inconsistent 

with the “substance” and intent of those policies. . . .

. . . .

. . . Phillip Jones’ response to the retaliatory and harassing 

behavior directed at the Student-Athlete was insufficient and 

ineffective. . . . The letters Jones sent were not effectively 

worded and did not inform the student athletes that they 

had already been accused of conduct in violation of the 

University’s anti-retaliation policy, and there was no inperson followup. . . . Jones failed to commence disciplinary 

action against the student-athletes identified by the StudentAthlete for their behavior, despite his authority to do so.

. . . .

. . . Jones’ misstatements and poor communications were 

largely responsible for the Student-Athlete’s mother’s 

perception that the Department of Athletics was attempting 

to cover up her daughter’s allegations.

. . . .

. . . The interview and notes show that he (Jones) believed 

the student athlete and her family to be “forum shopping,”

asking for his help when they became dissatisfied with the 

Department of Athletics’ investigation.

. . . .

The Office of the Vice President for Student Services and 

Dean of Students failed in its responsibilities to the StudentAthlete and to the University in this case. Phillip Jones had 

the authority to intervene at numerous points in the process 

and to achieve the results necessary to protect the StudentAthlete. As early as the day after the alleged assault, Jones 
12

knew of the incident and had authority and resources to 

separate the alleged perpetrators from the Student-Athlete.

At the direction of the Regents, the Stolar report was subsequently 

released to the public in its entirety. Jones and Mason spoke by 

telephone on September 19, at which time Jones indicated he disagreed 

with the conclusions in the report. Mason indicated that she agreed with 

the conclusions of the report, and requested an in-person meeting to 

discuss the report and Jones’s further employment with the University. 

However, an in-person meeting did not take place because Jones was 

subsequently hospitalized as a result of a medical condition. On 

September 23, Mason sent Jones a letter terminating his employment 

with the University due to a “loss of confidence and trust in [him] based 

upon [his] failure to perform the duties and responsibilities of [his] 

position on behalf of the University of Iowa in response to the [October] 

2007 sexual assault.” On September 25, Mason made additional 

statements to the Regents regarding her decision to terminate Jones’s 

employment. She stated:

“Failing a student who asks for our help is unacceptable.”

“The Stolar report criticizes Jones for insensitivity, for telling 

the alleged victim that he did not know who she was.”

Mason also made the following statements to the media:

“I need complete confidence in my senior staff moving 

forward and I no longer felt I had that with . . . Phil Jones.”

“I am disappointed, ashamed, embarrassed for how this case 

was handled. I was two and a half months on the job. I 

trusted my senior advisors to be doing what was supposed to 

be done. I followed as closely as I could. I was very 

disappointed when I learned how significantly some of my 

senior staff fell in terms of their responsibility.”

“I thought extremely hard and talked with . . . Phillip Jones 

about what (his) plans might be and gave (him) the 

opportunity to resign.”
13

“I felt [the termination of Jones] was the right option.”

Jones presented his side of the story to the Regents through a 

letter drafted by his legal counsel. Therein, he disagreed with Mason’s 

decision to terminate him and the Stolar findings regarding his handling 

of the alleged sexual assault. The entire matter, including Jones’s 

termination, was highly publicized in the media.

During the summer of 2009, Jones brought suit against the 

University, the Regents, Mason as president of the University and 

individually (collectively state defendants), and Stolar, alleging false light 

invasion of privacy, defamation, wrongful termination, intentional 

interference with an employment contract, intentional interference with 

prospective business advantages, due process violations, and civil rights 

violations. In June 2010, during the course of discovery, Jones filed a 

motion to compel discovery of written communications between the 

Regents and Stolar. The defendants, asserting attorney–client privilege, 

opposed the motion and produced a privilege log. Subsequently, the 

state defendants and Stolar each filed independent motions for summary 

judgment on Jones’s claims against them. On January 31, 2012, the 

district court filed rulings denying the motion to compel and granting the 

defendants motions for summary judgment. Jones appealed and we 

retained the appeal.

II. Standard of Review.

“We review the district court’s decisions regarding discovery for an 

abuse of discretion.” Comes v. Microsoft Corp., 775 N.W.2d 302, 305 

(Iowa 2009). “An abuse of discretion consists of a ruling which rests 

upon clearly untenable or unreasonable grounds.” Lawson v. Kurtzhals, 

792 N.W.2d 251, 258 (Iowa 2010). In reviewing decisions regarding 
14

discovery, we give the district court wide latitude. Exotica Botanicals, Inc. 

v. Terra Int’l, Inc., 612 N.W.2d 801, 804 (Iowa 2000).

We review questions of statutory interpretation for correction of 

legal error. Hardin Cnty. Drainage Dist. 55 v. Union Pac. R.R., 826 

N.W.2d 507, 510 (Iowa 2013). Our review of the district court’s decision 

to grant summary judgment is also for corrections of errors of law. Pitts 

v. Farm Bureau Life Ins. Co., 818 N.W.2d 91, 96 (Iowa 2012).

A court should grant summary judgment if the pleadings, 

depositions, answers to interrogatories, and admissions on 

file, together with the affidavits, if any, show that there is no 

genuine issue as to any material fact and that the moving 

party is entitled to a judgment as a matter of law. In other 

words, summary judgment is appropriate if the record 

reveals a conflict only concerns the legal consequences of 

undisputed facts. When reviewing a court’s decision to grant 

summary judgment, we examine the record in the light most 

favorable to the nonmoving party and we draw all legitimate 

inferences the evidence bears in order to establish the 

existence of questions of fact.

Id. at 96–97 (citations and internal quotation marks omitted).

Finally, our review of Jones’s constitutional claims is de novo. 

State v. Becker, 818 N.W.2d 135, 141 (Iowa 2012).

III. Analysis.

A. The Motion to Compel Discovery. Jones challenges the 

district court’s ruling denying his motion to compel discovery of written 

communications between Stolar and the Regents. The court held that 

attorney–client privilege protected from disclosure roughly 250 items 

summarized in the privilege log produced by these defendants.4

 

4It is notable that Jones has not challenged the district court’s decision to file 

rulings on the motion to compel and motions for summary judgment on the same day. 

Nor did he raise a timing argument below or file a motion to postpone ruling on the 

summary judgment motions until after he had a ruling on the motion to compel. See

Miller v. Cont’l Ins. Co., 392 N.W.2d 500, 503 (Iowa 1986) (holding plaintiffs were 

entitled to a ruling on their motion to compel prior to adjudication of defendants’ 

motion for summary judgment).
15

1. Attorney–client privilege and waiver. On appeal, Jones assigns 

error to the district court’s ruling on attorney–client privilege. 

Alternatively, Jones claims that by releasing the Stolar report, the 

Regents waived the attorney–client privilege as to all confidential 

communications between the Regents and Stolar concerning the report. 

We elect to bypass both of these arguments. Even if we found the 

district court’s ruling on Jones’s motion to compel was erroneous, we 

would still conclude that the error is harmless because Jones has not 

even attempted to articulate how the withheld communications would 

have altered the outcome on any of his claims.

It is well-settled that nonprejudicial error is never ground for 

reversal on appeal. See Bengford v. Carlem Corp., 156 N.W.2d 855, 867 

(Iowa 1968). Furthermore, we do not presume the existence of prejudice 

based on an erroneous discovery ruling. See James v. Hyatt Regency 

Chi., 707 F.3d 775, 784 (7th Cir. 2013) (“We shall not reverse the district 

court’s ruling [on a motion to compel] absent a clear showing that the 

denial of discovery resulted in actual and substantial prejudice . . . .”);

Team Cent., Inc. v. Teamco, Inc., 271 N.W.2d 914, 922 (Iowa 1978) (noting 

that an erroneous discovery ruling on privilege must be “of sufficient 

importance to justify a reversal”); Schroedl v. McTague, 169 N.W.2d 860, 

865 (Iowa 1969) (holding that even if trial court’s discovery ruling on 

party’s request for admissions was erroneous, there was “no ground for a 

reversal as no prejudice therefrom appear[ed] in the record”). “[T]he 

burden rests upon the appellant not only to establish error but to further 

show that prejudice resulted.” In re Behrend’s Will, 233 Iowa 812, 818, 

10 N.W.2d 651, 655 (1943).

In this appeal, Jones has made no attempt to refute the entire 

subsection of the state defendants’ brief which argued that disclosure of 
16

all of the communications at issue would not have altered the outcome 

on any of his claims. He has merely alleged that he was “restrained” 

from presenting evidence to support his claims on summary judgment 

because of the district court’s ruling on the motion to compel. We 

recognize the difficulty faced by a party appealing the denial of a motion 

to compel. It is impossible for the party to know with exactitude the 

content of the information sought or the extent to which it may have 

supported the party’s claims or defenses. Nevertheless, at a minimum, 

we must require Jones to advance some explanation of how he expected 

the withheld communications to support the claims alleged in this 

lawsuit. See Ginsburg v. InBev NV/SA, 623 F.3d 1229, 1236 (8th Cir. 

2010) (upholding district court ruling barring depositions of CEOs based 

on failure “to allege specific prejudice” from the ruling); Dennis v. Osram 

Sylvania, Inc., 549 F.3d 851, 860 (1st Cir. 2008) (finding no prejudicial 

error based on denial of motion to compel where the challenging party 

did not allege the withheld documents would yield any information in 

support of his claim); Caisson Corp. v. Ingersoll-Rand Co., 622 F.2d 672, 

684–85 (3d Cir. 1980) (declining to reverse based on plaintiff’s improper 

failure to produce certain documents in response to discovery requests 

absent “a showing of specific prejudice, rather than general prejudice”). 

A bare assertion of prejudice based on an inability to “access all the 

evidence” is not enough.5 Accordingly, we affirm the district court’s 

ruling on the motion to compel.

 

5We also note that our resolution of the state sovereign immunity issue 

significantly diminishes the potential usefulness of the withheld communications. 

Jones’s defamation, false light invasion of privacy, and intentional interference claims 

against the state defendants are all barred by the Iowa Tort Claims Act. His 

employment discrimination claim is lodged only against Mason. However, Mason was 

only a party to one communication which is listed as a “request for documents” in the 

privilege log. The communications could not possibly affect our analysis on the 

procedural due process claim. That leaves his wrongful discharge claims against the 
17

B. Summary Judgment on Claims Against the State 

Defendants.

1. False light and defamation claims. Jones challenges the district 

court’s grant of summary judgment on his false light invasion of privacy 

and defamation claims against the state defendants. Accordingly, we 

must examine whether the Iowa Tort Claims Act shields the state 

defendants from tort liability.

a. Claims against the institutional state defendants. We have 

recently examined the Iowa Tort Claims Act (ITCA) in some detail. 

“Generally, the State may be sued for damage caused by the negligent or 

wrongful acts or omissions of state employees while acting within the 

scope of employment to the same extent that a private person may be 

sued.” McGill v. Fish, 790 N.W.2d 113, 117 (Iowa 2010) (citing Iowa Code 

§ 669.2(3)(a) (1995)). State employees engaging in wrongful conduct may 

also be sued personally. Id. (citing Iowa Code § 669.2(3)(b)). Yet, as long 

as the employee was acting within the scope of employment at all 

relevant times, the suit is deemed to be an action against the state. Iowa 

Code § 669.5(2) (2009); see also Dickerson v. Mertz, 547 N.W.2d 208, 212 

(Iowa 1996) (finding state department of natural resources employees

were cloaked with sovereign immunity because plaintiff did not allege 

they were acting outside the scope of their employment).

Prior to the enactment of ITCA, the doctrine of sovereign immunity 

protected the state and its agencies from suits in tort. Lloyd v. State, 251 

N.W.2d 551, 555 (Iowa 1977). ITCA modified the doctrine by waiving 

immunity for some torts against the government and its agencies. Id. 

______________________________________

state defendants, as well as the defamation and intentional interference claims against 

Stolar. We find it doubtful the communications at issue could rescue any of these 

claims. In any event, it is Jones’s burden to establish how the evidence sought could 

have altered the outcome.
18

The waiver of sovereign immunity, however, applies only to the actions 

specified in the statute. Id. Defamation claims against the state are 

barred by ITCA, which prohibits a litigant from bringing “[a]ny claim 

arising out of assault, battery, false imprisonment, false arrest, malicious

prosecution, abuse of process, libel, slander, misrepresentation, deceit, 

or interference with contract rights.” Iowa Code § 669.14(4). Similarly, 

we find Jones’s false light claims against the state are barred by ITCA. 

The Southern District of Iowa recently considered similar claims against 

these same defendants based on the Stolar report. Mills v. Iowa Bd. of 

Regents, 770 F. Supp. 2d 986 (S.D. Iowa 2011). The court concluded the 

“[p]laintiff’s cause of action for false light invasion of privacy is founded 

on precisely those allegedly false statements by Mason . . . that form the 

basis for his defamation claims,” and, therefore, “[p]laintiff’s false light 

invasion of privacy claim ‘arises’ out of a claim for defamation, such that 

it is barred by [Iowa Code section] 669.14(4).” Id. at 998. We agree with 

the federal court’s conclusion. Because the state is immune from suit for 

false light invasion of privacy and defamation under ITCA, the district 

court was correct in granting summary judgment in favor of the 

institutional state defendants.

b. Defamation and false light claims against Mason. Jones’s 

defamation and false light claims against Mason may proceed if the 

conduct at issue is deemed to have been outside the scope of her 

employment. Iowa Code section 669.5 states:

Upon certification by the attorney general that a defendant 

in a suit was an employee of the state acting within the 

scope of the employee’s office or employment at the time of 

the incident upon which the claim is based, the suit 

commenced upon the claim shall be deemed an action 

against the state . . . .
19

Iowa Code § 669.5(2)(a). In this case, the Attorney General certified that 

Mason was acting within the scope of her employment as President of the 

University of Iowa at all relevant times.

Iowa Code section 669.5(2)(b) gives a defendant the option to 

petition the court if the attorney general refuses to certify that a state 

employee was acting within the scope of his or her office. However, it 

does not expressly provide for a plaintiff to petition for reversal of the 

attorney general’s decision to certify. Id. § 669.5(2)(b). Accordingly, 

Mason argues the attorney general’s certification is conclusive on the 

question of whether she was acting within the scope of her employment 

and Jones’s action against her must be considered an action against the 

state. In Mills, the Iowa federal district court agreed with this position 

regarding the conclusiveness of the attorney general’s certification under 

section 669.5(2)(a). 770 F. Supp. 2d at 994–95.

Conversely, Jones contends the district court erred in accepting 

the attorney general’s certification as binding. In support of this 

position, he points out that section 669.5(2)(b) does not expressly prevent 

the district court from reexamining the facts to determine whether the 

attorney general’s certification was correct. Alternatively, he argues 

section 669.5(2)(b) is unconstitutional. Ultimately, we need not reach 

Jones’s statutory construction and constitutional arguments concerning 

section 669.5(2)(b). See State v. Button, 622 N.W.2d 480, 485 (Iowa 

2001) (“Ordinarily we will not pass upon constitutional arguments if 

there are other grounds on which to resolve the case.”). Assuming 

without deciding that the attorney general’s certification is not conclusive 

and binding on the court, we still conclude Mason was acting within the 

scope of her employment at all relevant times.
20

Section 669.2 of ITCA sets forth the following definition: “ ‘Acting

within the scope of the employee’s office or employment’ means acting in 

the employee’s line of duty as an employee of the state.” Iowa Code

§ 669.2(1). At common law we have explained the scope of employment 

concept as follows:

for an act to be within the scope of employment the conduct 

complained of must be of the same general nature as that 

authorized or incidental to the conduct authorized. Thus, an 

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.

Godar v. Edwards, 588 N.W.2d 701, 705–06 (Iowa 1999) (citations and 

internal quotation marks omitted). While we acknowledge Godar 

discusses scope of employment in the context of respondeat superior, we 

find this common law formulation instructive.

Jones essentially argues Mason improperly blamed him for the 

mishandling of the sexual assault investigation in order to protect herself 

and preserve her position with the University. He contends “[h]eaping 

false blame on Jones was not her ‘job’ as the University’s President” and, 

accordingly, her conduct was outside the scope of her employment. As 

discussed below, it is undisputed in this record that Jones was 

terminated due to Mason’s loss of confidence in his professional abilities 

based on his handling of the sexual assault incident. A termination on 

this basis was well within the scope of Mason’s employment. We are not 

persuaded that a genuine issue of material fact exists on this issue. 

Therefore, Mason enjoys the same sovereign immunity as the 

institutional state defendants. See Iowa Code § 669.5(2)(a).
21

2. Intentional interference claims.6 Jones challenges the district 

court’s grant of summary judgment on his claims against Mason for 

intentional interference with an existing employment contract and 

intentional interference with prospective business advantages. ITCA 

does not waive state sovereign immunity for “[a]ny claim arising out of 

. . . interference with contract rights.” Id. § 669.14(4). Accordingly, 

claims against the state for intentional interference with an existing 

employment contract are barred. Moreover, we interpreted this statutory 

language in North v. State and concluded that the “interference with 

contract rights” language encompasses claims of tortious interference 

with prospective business advantages. 400 N.W.2d 566, 569–70 (Iowa 

1987). Because we have determined that Mason was acting within the 

scope of her employment, Jones’s intentional interference claims are 

deemed claims against the state barred by ITCA.

3. Wrongful discharge. Jones also alleged wrongful discharge in 

violation of public policy against the state defendants. We first 

recognized this tort in 1988. Springer v. Weeks & Leo Co., 429 N.W.2d 

558, 560 (Iowa 1988) (“We believe a cause of action should exist for 

tortious interference with the contract of hire when the discharge serves 

to frustrate a well-recognized and defined public policy of the state.”). 

Wrongful discharge is an exception to Iowa’s general rule that 

employment is at-will. Berry v. Liberty Holdings, Inc., 803 N.W.2d 106, 

109 (Iowa 2011). At-will employment “means that, absent a valid 

 

6Jones does not appeal the summary judgment ruling on his claim of intentional 

interference with an employment contract against the institutional state defendants. 

Citing Klooster v. North Iowa State Bank, he correctly concedes that because the 

institutional state defendants were parties to the employment relationship, they cannot 

be liable under an intentional interference with existing business relationships theory. 

404 N.W.2d 564, 570 (Iowa 1987). Nor does he appeal the district court ruling on his 

claim of intentional interference with prospective business advantages against the 

institutional state defendants.
22

contract of employment, the employment relationship is terminable by 

either party at any time, for any reason, or for no reason at all.” Id. 

(citation and internal quotation marks omitted). The narrow publicpolicy exception to the at-will employment doctrine “limits an employer’s 

discretion to discharge an at-will employee when the discharge would 

undermine a clearly defined and well-recognized public policy of the 

state.” Id.

We have set forth the parameters of a successful claim of wrongful 

discharge in violation of public policy as follows: 

(1) the existence of a clearly defined and well-recognized 

public policy that protects the employee’s activity; (2) this 

public policy would be undermined by the employee’s 

discharge from employment; (3) the employee engaged in the 

protected activity, and this conduct was the reason the 

employer discharged the employee; and (4) the employer had 

no overriding business justification for the discharge.

Dorshkind v. Oak Park Place of Dubuque II, L.L.C., 835 N.W.2d 293, 300, 

2013 WL 3958293, at *6 (Iowa 2013) (quoting Berry, 803 N.W.2d at 109–

10).

Jones claims that Mason violated the University’s conflict-ofinterest regulations when she terminated him. Section 18.5(b) of the 

University’s Operations Manual states: “any activity that has significant 

financial or personal considerations for employees that may compromise, 

or appear to compromise, their professional judgment must be disclosed 

and managed.” We have recognized that “administrative regulations can 

serve as a source of public policy to give rise to a claim of wrongful 

discharge from employment.” Jasper v. H. Nizam, Inc., 764 N.W.2d 751, 

757 (Iowa 2009). However, Jones has not alleged that he was terminated 

for engaging in any activity protected by the University’s conflict-ofinterest regulations. Thus, the first element of the tort has not been met.
23

Jones also argues the University’s sexual assault policy contains a 

clearly defined public policy of the state and that he was terminated for 

following it. It is unnecessary to examine whether Jones can satisfy the 

first two requirements of the public policy exception because there is no 

evidence that would permit a reasonable jury to conclude Jones was 

terminated for following the sexual assault policy. Mason’s letter to 

Jones explaining his termination stated, 

This action is the result of my loss of confidence and 

trust in you based upon your failure to perform the duties 

and responsibilities of your position on behalf of the 

University of Iowa in response to the [October] 2007 sexual 

assault.

In order to avoid summary judgment, Jones needs to establish that 

a reasonable jury could find he was fired because he followed the sexual 

assault policy. However, he has not cited any record evidence criticizing 

him for following the sexual assault policy. To the contrary, while the 

Stolar report concluded Jones had not violated the “letter” of the 

University sexual assault policy, it concluded his conduct was 

“fundamentally inconsistent with [its] ‘substance’ and intent.” The report 

also concluded that, although Jones was aware of the allegations against 

the two football players, he never exercised his power to remove either 

one of them from the dormitory they shared with the alleged victim. The 

report further concluded that Jones’s “response to the retaliatory and 

harassing behavior directed at the victim was insufficient and 

ineffective.” Instead of exercising his authority to commence disciplinary 

action against those harassing the alleged victim, Jones merely sent 

them letters informing them of the existence of the University’s antiretaliation policy. Thus, the record evidence only demonstrates Jones’s

termination was based on a reportedly inadequate utilization of the 
24

policy to secure the rights and safety of the alleged victim.7 Accordingly, 

the record does not contain a genuine issue of material fact as to 

whether Jones was fired for following the sexual assault policy, and we 

must affirm the district court’s ruling on Jones’s wrongful discharge 

claim.

4. Due process. The district court granted summary judgment for 

the state defendants on Jones’s due process claims brought under 42 

U.S.C. § 1983 (2006 & Supp. V. 2011). This claim was properly disposed 

as to the institutional state defendants because the University of Iowa 

and the Board of Regents are not persons within the meaning of § 1983. 

See, e.g., Will v. Mich. Dep’t of State Police, 491 U.S. 58, 64–66, 109 S. Ct. 

2304, 2308–11, 105 L. Ed. 2d 45, 53–55 (1989). However, Jones has 

properly alleged this claim against Mason in her individual capacity. See 

Burlison v. Springfield Pub. Sch., 708 F.3d 1034, 1041 (8th Cir. 2013) (“A 

government official can be liable [under § 1983] in his individual capacity 

if ‘a causal link to, and direct responsibility for, the deprivation of rights’ 

is shown.” (quoting Mayorga v. Missouri, 442 F.3d 1128, 1132 (8th Cir. 

2006)). Jones contends Mason violated the Due Process Clause by 

denying him the benefit of a name-clearing hearing.

“Due process is a flexible concept that varies with the particular 

situation, and its fundamental requirement . . . is the opportunity to be 

heard at a meaningful time and in a meaningful manner.” United States 

v. BP Amoco Oil PLC, 277 F.3d 1012, 1017 (8th Cir. 2002) (citation and 

internal quotation marks omitted). Procedural due process claims center 

on the “requirement that a person in jeopardy of serious loss [be given] 

 

7Notably, in support of his defamation claim against Mason, Jones contends he 

was fired because Mason was using him as a scapegoat in order to protect her own 

professional interests.
25

notice of the case against him and opportunity to meet it.” Mathews v. 

Eldridge, 424 U.S. 319, 348–49, 96 S. Ct. 893, 909, 47 L. Ed. 2d 18, 41 

(1976) (citation and internal quotation marks omitted). Further, “[a]ll 

that is necessary is that the procedures be tailored . . . to the capacities 

and circumstances of those who are to be heard, to insure that they are 

given a meaningful opportunity to present their case.” Id. at 349, 96 S. 

Ct. at 909, 47 L. Ed. 2d at 41 (citation and internal quotation marks 

omitted).

We have established a two-step process for determining whether a 

procedural due process violation has occurred. State v. Seering, 701 

N.W.2d 655, 665 (Iowa 2005). First, we must determine whether we are 

dealing with a protected liberty or property interest. Id. Second, if we 

determine that a protected interest is at stake, we balance three factors 

to determine what process is due. Id.

First, the private interest that will be affected by the official 

action; second, the risk of an erroneous deprivation of such 

interest through the procedures used, and the probable 

value, if any, of additional or substitute procedural 

safeguards; and finally, the Government’s interest, including 

the function involved and the fiscal and administrative 

burdens that the additional or substitute procedural 

requirement[s] would entail.

Mathews, 424 U.S. at 335, 96 S. Ct. at 903, 47 L. Ed. 2d at 33; accord 

Seering, 701 N.W.2d at 665.

As stated by the Eighth Circuit,

“An employee’s liberty interests are implicated where the 

employer levels accusations at the employee that are so 

damaging as to make it difficult or impossible for the 

employee to escape the stigma of those charges. The 

requisite stigma has generally been found when an employer 

has accused an employee of dishonesty, immorality, 

criminality, racism, and the like.”
26

Putnam v. Keller, 332 F.3d 541, 546 (8th Cir. 2003) (quoting Winegar v. 

Des Moines Indep. Cmty. Sch. Dist., 20 F.3d 895, 899 (8th Cir. 1994)).

When a government employer makes such accusations, an 

employee’s due process rights are vindicated by a pretermination nameclearing hearing giving the employee an opportunity to respond. 

Winskowski v. City of Stephen, 442 F.3d 1107, 1110 (8th Cir. 2006). 

This hearing need not be elaborate. Id. Even “an informal meeting[] with 

supervisors may constitute a sufficient pre-termination hearing.” Id. 

(citation and internal quotation marks omitted).

In Rush v. Perryman, the Eighth Circuit held that a college 

president had a due process right to a name clearing hearing after he 

was terminated amidst accusations of “dishonesty, insubordination, 

failure to comply with state laws, and willful disregard of board policy.” 

579 F.3d 908, 910, 913 (8th Cir. 2009). In contrast, Mason’s statements 

regarding Jones’s termination merely stated she had lost confidence in 

Jones’s ability to fulfill his professional responsibilities. She also 

indicated that he had failed a student and demonstrated insensitivity. 

While Mason’s comments could undoubtedly be interpreted as 

accusations of professional incompetence, such accusations fall 

substantially short of the level of stigma required to establish a 

constitutionally protected liberty interest. See Anderson v. Low Rent 

Hous. Comm’n of Muscatine, 304 N.W.2d 239, 244–45 (Iowa 1981) 

(finding no liberty interest attendant to allegations of petulance and 

insubordination and noting that courts have generally held allegations of 

incompetence do not implicate a due process liberty interest) (citing 

cases). The facts viewed in the light most favorable to Jones do not 

establish a genuine fact issue as to whether Jones suffered a procedural 

due process violation.
27

5. Employment discrimination. Jones also appeals the summary 

judgment ruling on his employment discrimination claim against Mason. 

He claimed he was fired based on his race and gender in violation of 42 

U.S.C. § 1983.8 The district court concluded Jones failed to properly 

plead a claim of employment discrimination, apparently based on the 

state defendants’ argument that no cause of action for employment 

discrimination exists under § 1983 and that Jones was trying to use 

§ 1983 to circumvent the procedural and jurisdictional requirements of 

Title VII. The court further concluded that even if Jones had properly 

pled an employment discrimination claim, the state defendants were

entitled to summary judgment on it. We affirm because Jones has not 

generated a jury question on the pretext element of his claim.

Title VII of the Civil Rights Act of 1964 makes it unlawful to 

“discharge . . . or otherwise to discriminate against any individual with 

respect to his compensation, terms, conditions, or privileges of 

employment, because of such individual’s race, color, religion, sex, or

national origin.” 42 U.S.C. § 2000e–2. On the other hand, 42 U.S.C. 

§ 1983 provides a private right of action to any U.S. citizen who is 

deprived of “any rights, privileges, or immunities secured by the 

Constitution and laws” by any person acting “under color of any statute, 

ordinance, regulation, custom, or usage, of any State or Territory or the 

District of Columbia.” 42 U.S.C. § 1983. Section 1983 does not 

establish any substantive rights, rather it serves as a mechanism to 

enforce rights “secured by the Constitution of the United States or by any 

Act of Congress providing for equal rights.” Chapman v. Houston Welfare 

 

8Jones is an African-American male.
28

Rights Org., 441 U.S. 600, 618, 99 S. Ct. 1905, 1916, 60 L. Ed. 2d 508, 

523 (1979).

It is thoroughly established in the federal appellate courts that, 

while Title VII is the exclusive remedy for any violation created by its 

terms, “its exclusivity ceases when the employer’s conduct also amounts 

to a violation of a right secured by the Constitution.” Henley v. Brown, 

686 F.3d 634, 642 (8th Cir. 2012) (citing federal circuit court cases). 

Hence, an employment discrimination plaintiff may proceed under 

§ 1983 if intentional race or gender discrimination is alleged in violation 

of the Equal Protection Clause in the Fourteenth Amendment. See, e.g., 

Hervey v. City of Little Rock, 787 F.2d 1223, 1233 (8th Cir.1986); see also 

Annis v. County of Westchester, 36 F.3d 251, 254 (2d Cir. 1994)

(“Congress did not intend to make Title VII the exclusive remedy for 

employment discrimination claims, at least not those claims cognizable

under the Constitution.”). In the context of employment discrimination it 

is similarly established that Title VII and § 1983 constitute parallel 

causes of action “and the elements of a prima facie case are the same 

regardless of which statute the plaintiff uses to seek relief.” Wright v. 

Rolette County, 417 F.3d 879, 884 (8th Cir. 2005); see also Lauderdale v. 

Tex. Dep’t of Criminal Justice, 512 F.3d 157, 166 (5th Cir. 2007) (“Section 

1983 and title VII are parallel causes of action[] [and a]ccordingly, the 

inquiry into intentional discrimination is essentially the same for 

individual actions brought under sections 1981 and 1983, and Title VII.”

(citations and internal quotation marks omitted)); Demoret v. Zegarelli, 

451 F.3d 140, 149 (2d Cir. 2006) (holding that once color of law is 

established a § 1983 claim is analogous to an employment discrimination 

claim under Title VII, except § 1983 claims can be brought against an 

individual); Richmond v. Bd. of Regents, 957 F.2d 595, 598 (8th Cir.
29

1992) (requiring the same prima facie showing for race discrimination 

claims under Title VII and 42 U.S.C. § 1983). Therefore, Jones was not 

required to follow the statutorily prescribed administrative procedure 

required to file a claim under Title VII. See 42 U.S.C. § 2000e–5(b), (c), 

(e), (f)(1)). Further, he has properly pled an employment discrimination 

claim by invoking § 1983 and advancing the McDonnell Douglas9

framework for intentional discrimination well recognized in Title VII 

jurisprudence.

To make a prima facie case under the McDonnell 

Douglas framework, [a plaintiff must] show that (1) she was a 

member of the protected group; (2) she was qualified to 

perform the job; (3) she suffered an adverse employment 

action; and (4) circumstances permit an inference of 

discrimination. Such a showing creates a presumption of 

unlawful discrimination, requiring [a defendant] to produce a 

legitimate nondiscriminatory reason for its employment 

action. The burden then returns to [the plaintiff] to prove 

that [the defendant]’s proffered reason for firing her is 

pretextual.

Lewis v. Heartland Inns of Am., L.L.C., 591 F.3d 1033, 1038 (8th Cir. 

2010) (citation and internal quotation marks omitted).

We find it unnecessary to resolve the question of whether Jones 

has made out a prima facie case of discrimination. Mason has produced 

a legitimate nondiscriminatory reason for Jones’s termination and, 

accordingly, the burden shifts to Jones to show that the proffered reason 

is pretextual. When we evaluate all the evidence in the light most 

favorable to Jones, there is no genuine fact issue as to whether he has 

carried this burden. In support of his claim, Jones points to Mason’s 

deposition testimony. Therein, Mason explains that one of the Stolar 

attorneys described Jones’s response to the Stolar investigation as “very 

 

9McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 

668 (1973).
30

defensive and belligerent,” “angry,” “argumentative,” “not particularly 

cooperative,” and “angry and defensive in his posture and demeanor.” 

He argues that these statements are reflective of common stereotypes 

portraying African-American men as “lazy, shiftless, belligerent, abusive, 

and aggressive.” We are mindful that adverse employment actions based 

on race and gender stereotypes constitute illegal discrimination. See id. 

at 1042. However, in this case the record does not reveal a genuine 

issue of material fact to allow a reasonable jury to conclude Mason’s 

decision to terminate him was based on improper stereotypes about 

African-American males.

After reviewing the Stolar report, which, as discussed above, was 

highly publicized and highly critical of Jones’s management of the 

incident, Mason issued Jones a letter terminating him based on a “loss of 

confidence and trust in [him] based upon [his] failure to perform the 

duties and responsibilities of [his] position on behalf of the University of 

Iowa in response to the [October] 2007 sexual assault.” All of Mason’s 

statements concerning Jones’s termination corroborate the legitimate 

nondiscriminatory motivation given in the letter. Further, there is no 

evidence that Mason held the allegedly stereotypical views or applied 

them to Jones. In making the above statements, Mason was merely 

recalling the characterization of Jones’s conduct given to her by one of 

the Stolar attorneys conducting the investigation. None of the 

statements, which Jones contends evince improper stereotyping, were 

ever given as a reason for his termination.10 Finally, Mason also 

terminated Marcus Mills, the University’s general counsel, who is 

 

10It is noteworthy that, throughout this litigation, Jones has contended Mason 

terminated him for the purpose of preserving her own position—a motivation distinctly 

independent from any form of racial or gender-based animus.
31

Caucasian, based on her assessment of the Stolar report. See RoseMaston v. NME Hosp., Inc., 133 F.3d 1104, 1109 n.4 (8th Cir. 1998) 

(noting that failure to prove similarly situated employees were treated 

differently is fatal under the McDonnell Douglas framework). Thus, it is 

undisputable that Jones’s termination was due to Mason’s loss of 

confidence in Jones’s professional abilities based on his handling of the 

sexual assault incident. The district court’s ruling granting Mason 

summary judgment on Jones’s employment discrimination claim is 

affirmed.

C. Summary Judgment on Claims Against Stolar. Jones also 

appeals the district court’s rulings granting Stolar summary judgment on 

his claims against them for defamation and intentional interference with 

contractual relationships and prospective business advantages. We 

review the district court’s ruling on each claim in turn.

1. Defamation claim against Stolar. The district court did not 

consider the elements of Jones’s defamation claims against Stolar 

because it found no fact issue on the question of whether Stolar enjoyed 

a qualified privilege with respect to the alleged defamatory statements 

contained in its report. A public figure11 alleging defamation carries the 

burden to show a reasonable jury could find by clear and convincing 

evidence that (1) the challenged statements were false and (2) the 

statements were made with “actual malice.” Stevens v. Iowa 

Newspapers, Inc., 728 N.W.2d 823, 826 (Iowa 2007).

Qualified privilege is an affirmative defense in a defamation action. 

Barreca v. Nickolas, 683 N.W.2d 111, 116–17 (Iowa 2004).

 

11Jones concedes that he is a public figure for the purposes of his defamation 

claim.
32

The law affords defendants privileges because [s]ometimes 

one is justified in communicating to others, without liability,

defamatory information. . . . The law recognizes certain 

situations may arise in which a person, in order to protect 

his own interests or the interests of others, must make 

statements about another which are indeed libelous. When 

this happens, the statement is said to be privileged, which 

simply means no liability attaches to its publication.

Id. at 116–17 (citation and internal quotation marks omitted). We have 

recognized that “ ‘[t]he doctrine of privileged communication is based 

upon the principle of good public policy.’ ” Id. at 117 (quoting Mills v. 

Denny, 245 Iowa 584, 587, 63 N.W.2d 222, 224 (1954)). “Instances 

abound where the individual must surrender his [or her] personal rights 

and suffer loss for the benefit of the common welfare.” Mills, 245 Iowa at 

587, 63 N.W.2d at 224.

In order to demonstrate the existence of qualified privilege in an 

action for defamation a defendant must prove:

(1) the statement was made in good faith, (2) the defendant 

had an interest to uphold, (3) the scope of the statement was 

limited to the identified interest, and (4) the statement was 

published on a proper occasion, in a proper manner, and to 

proper parties only.

Theisen v. Covenant Med. Ctr., Inc., 636 N.W.2d 74, 84 (Iowa 2001). The 

privilege may be lost “if the speaker acts with actual malice, or exceeds or 

abuses the privilege through, for example, excessive publication or 

through publication to persons other than those who have a legitimate 

interest in the subject of the statements.” Id.; see also Spencer v. 

Spencer, 479 N.W.2d 293, 297 (Iowa 1991) (“The qualified privilege by its 

very nature does not allow widespread or unrestricted communication.”). 

For the purpose of establishing actual malice to preclude a finding of 

qualified privilege, a plaintiff must show the statement was made with 

knowing or reckless disregard for whether it was true or false. Barreca, 

683 N.W.2d at 121. As Jones correctly notes, it is generally the district 
33

court’s responsibility to determine whether a defendant’s statement is 

qualifiedly privileged, and a jury question as to whether the privilege was 

abused. See id. at 118.

Jones argues that several statements in the Stolar report sharply 

criticizing him for mishandling the sexual assault were defamatory. 

Specifically, Jones takes issue with the repeated assertion that he had 

“failed” in his job responsibilities. He contends “Stolar’s words singling 

[him] out . . . as having ‘failed’ or as a ‘failure’ nine times . . . were 

capable of defamatory meaning.” Jones alleges that qualified privilege 

does not apply to the statements at issue because the statements were 

published with actual malice, were unnecessary to achieve the privileged 

interest, and because Stolar abused the privilege by publishing 

excessively.

Jones’s claim that Stolar’s reported comments concerning his 

conduct were made with actual malice suffers from an absence of 

evidence. Jones only attempts to demonstrate the falsity of the 

statements at issue, several of which are opinions not subject to a factual 

determination. See Yates v. Iowa W. Racing Ass’n, 721 N.W.2d 762, 774 

(Iowa 2006) (explaining that no cause of action for defamation shall lie 

when the statements at issue are opinions and are not objectively 

verifiable). Even if, for the sake of argument, we assume some of the 

statements at issue are false, Jones has not identified a single piece of 

record evidence suggesting that Stolar acted with reckless disregard for 

the truth at any stage of its investigation or in the preparation of its 

report. To the contrary, the record demonstrates Stolar’s conclusions 

were based on a thorough and deliberate investigation. Cf. Barreca, 683 

N.W.2d at 123 (finding a jury question on the issue of actual malice 

where statements were published based on “an anonymous and 
34

uncorroborated tip”). Thus, the record fails to show there is a genuine 

issue of fact on the question of actual malice.

Nor does the record contain a genuine fact issue on the question of 

whether the scope of Stolar’s statements exceeded the privileged interest. 

Stolar was hired by the Regents to assist in “conduct[ing] a review of all 

actions taken by University personnel in response to the alleged assault” 

and “[a]ssess[ing] whether the University’s policies and procedures were 

followed.” The retainer agreement tasked Stolar with “review[ing] past 

investigations and recommendations of sexually related complaints and 

incidents at the University.” Thus, providing assessments on the 

management of the sexual assault investigation by University personnel, 

including Jones, was a privileged interest established by the retainer 

agreement with Stolar. All of the statements at issue go to the very heart 

of the assignment with which Stolar was tasked. There is no plausible 

dispute as to whether Stolar exceeded the scope of the privilege by 

issuing a report containing statements critical of Jones’s handling of the 

alleged assault. See Bitner v. Ottumwa Cmty. Sch. Dist., 549 N.W.2d 295, 

303 (Iowa 1996) (affirming summary judgment for CPA firm because 

qualified privilege applied to allegedly defamatory statements contained 

in audit prepared on behalf of a school board).

Jones’s claim of excessive publication is based on record evidence 

demonstrating that Stolar knew the Regents would make its report 

public. However, this fact is of small import in our analysis. Stolar 

submitted its report to the Regents and its advisory committee, the 

individuals who had retained Stolar to prepare the report. The Regents 

unquestionably had a legitimate interest in the statements contained 

therein, and it was the Regents’s decision to make the report public. 

Without some allegation that Stolar played a role in the decision to 
35

publish the report to the public, Jones has not properly alleged a claim of 

excessive publication. See Robinson v. Home Fire & Marine Ins. Co., 244 

Iowa 1084, 1095, 59 N.W.2d 776, 783 (1953) (“ ‘If a defendant 

deliberately adopts a method of communication that gives unnecessary 

publicity to defamatory statements, he cannot successfully invoke the 

defense of qualified privilege.’ ” (quoting Bereman v. Power Publ’g Co., 27 

P.2d 749, 751 (Colo. 1933))). Accordingly, we are unable to identify the 

existence of any jury question on the issue of qualified privilege under 

the facts alleged and the ruling granting Stolar summary judgment on 

Jones’s defamation claim is affirmed.

2. Intentional interference claims against Stolar. Finally, Jones 

appeals the district court’s rulings on his claims of intentional 

interference with contractual relationships and prospective business 

advantages against Stolar.

To recover for intentional interference with an existing 

contract, a plaintiff must show: “(1) plaintiff had a contract 

with a third-party; (2) defendant knew of the contract; 

(3) defendant intentionally and improperly interfered with 

the contract; (4) the interference caused the third-party not 

to perform, or made performance more burdensome or 

expensive; and (5) damage to the plaintiff resulted.”

Kern v. Palmer Coll. of Chiropractic, 757 N.W.2d 651, 662 (Iowa 2008)

(quoting Green v. Racing Ass’n of Cent. Iowa, 713 N.W.2d 234, 243 (Iowa 

2006)).

The tort of intentional interference with prospective 

business advantage imposes liability on a person who 

intentionally and improperly interferes with the claimant’s 

business expectancies “whether the interference consists of 

(a) inducing or otherwise causing a third person not to enter 

into or continue the prospective relation or (b) preventing the 

other from acquiring or continuing the prospective relation.”

Gordon v. Noel, 356 N.W.2d 559, 563 (Iowa 1984) (quoting Restatement 

(Second) of Torts § 766B (1979).
36

Jones contends Stolar was aware that after he retired from the 

University he planned to form a higher education consulting business.12 

Maintaining his position that Stolar published falsehoods in its report, he 

contends Stolar improperly interfered with his employment contract with 

the University and with his prospective business plans. Both torts 

alleged by Jones, intentional interference with contract and intentional 

interference with prospective business relations, require that he prove 

that Stolar “intentionally and improperly interfered with the relationship 

at issue.” Compiano v. Hawkeye Bank & Trust of Des Moines, 588 

N.W.2d 462, 464 (Iowa 1999). The difference between the two torts, 

however, is that to recover for interference with prospective business 

relations, Jones must prove that Stolar “acted with the sole or 

predominant purpose to injure or financially destroy the plaintiff.” Id. 

For the same reasons we found that the statements at issue were within 

the scope of a privileged interest, we conclude Jones has not generated a 

fact issue on the threshold question of intentional and improper 

interference under either circumstance. The district court was correct in 

granting summary judgment to Stolar on these claims.

IV. Disposition.

We affirm the district court’s ruling on the motion to compel 

discovery and affirm the district court’s grant of summary judgment in 

favor of the defendants.

AFFIRMED.

 

12Stolar disputes this fact.