David Alan Feeback v. Swift Pork Company, Troy Mulgrew and Todd Carl ( 2023 )

IN THE SUPREME COURT OF IOWA
No. 20–1467
Submitted November 16, 2022—Filed March 31, 2023
DAVID ALAN FEEBACK,
Appellant,
vs.
SWIFT PORK COMPANY, TROY MULGREW, and TODD CARL,
Appellees.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Marshall County, Bethany Currie,
Judge.
Defendants seek further review of the decision of court of appeals that
reinstated the plaintiff’s age discrimination claim dismissed on summary
judgment. DECISION OF COURT OF APPEALS AFFIRMED IN PART AND
VACATED IN PART; DISTRICT COURT SUMMARY JUDGMENT AFFIRMED.
Waterman, J., delivered the opinion of the court, in which all participating
justices joined. May, J., took no part in the consideration or decision of this case.
Bruce H. Stoltze, Jr. (argued) of Stoltze & Stoltze, PLC, Des Moines, for
appellant.
Ruth A. Horvatich (argued) and Aaron A. Clark of McGrath North Mullin &
Kratz, PC LLO, Omaha, Nebraska, for appellee.
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WATERMAN, Justice.
The plaintiff, age sixty, texted his plant manager “FUCK You!” and “Believe
who and what you want” shortly after that manager harshly criticized his job
performance. The plaintiff was promptly fired, and he sued for wrongful
termination, workplace harassment, and age discrimination. The defendants
moved for summary judgment on the grounds that this at-will employee was
lawfully fired for insubordination. The plaintiff resisted, arguing that he meant
to text someone else, the defendants retaliated against him for making safety
complaints, profanity was widespread at this workplace, and the employer had
a practice of discriminating against older employees. The district court granted
summary judgment, dismissing all claims, and we transferred the plaintiff’s
appeal to the court of appeals, which affirmed two counts but reinstated the age
discrimination claim, determining questions of fact precluded summary
judgment. We granted the defendants’ application for further review.
On our review, we determine that the district court properly granted
summary judgment on all claims. We modify the McDonnell Douglas
burden-shifting framework for summary judgment on discrimination claims
under the Iowa Civil Rights Act (ICRA) to align with the causation standard at
trial.1 We adopt and apply the good-faith “honest belief rule”2 to affirm the
employer’s decision to terminate the plaintiff for insubordination. The employer’s
investigation was adequate. While there is a culture of profanity at the
1See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05 (1973).
2See Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 996, 1002 (8th Cir. 2012).
3
meatpacking plant, no other employee texted or said “FUCK You!” to the plant
manager right after his negative performance review. While the plaintiff named
other older employees who had been terminated over several decades, he had no
direct evidence or any expert statistical analysis to show a company practice of
discriminating against older workers. We hold this plaintiff lacked proof
sufficient to raise a jury question on age discrimination.
I. Background Facts and Proceedings.
We review the record in the light most favorable to the plaintiff. David Alan
Feeback worked for Swift Pork Company (Swift) for nearly thirty years, beginning
in 1988 as a production worker at its Marshalltown pork processing plant. He
rose through the ranks and ultimately was promoted to a middle management
position there as cut floor supervisor. He held that position in 2015 at age sixty.
Feeback was an at-will employee with no employment contract. He received
mostly positive employment reviews through 2014. He received a raise and
bonus in 2015.
In May 2015, Feeback complained to his direct supervisor, Todd Carl,
about unsafe working conditions on the cut floor. Feeback reported the trolleys
that transported hog carcasses from coolers to the cut floor were old and worn
out, and their poor condition allowed carcasses to slide off. Feeback warned that
workers could be injured by a falling carcass. Carl responded by emphasizing
high replacement costs and abruptly ended their conversation. When Feeback
raised the issue again in a phone call a few weeks later, Carl hung up
mid-conversation. Although Feeback did not raise that safety issue again, their
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conflict broadened to other issues. Carl accused Feeback of being “asleep at the
wheel” and letting his department run “out of control.” Troy Mulgrew, Swift’s
general manager, also displayed hostility. Mulgrew once interrupted Feeback’s
bathroom break, accusing him of “fucking around” in there. In early December,
Mulgrew reprimanded Feeback for missing a safety meeting; Carl said nothing
in Feeback’s defense even though Carl had approved Feeback’s absence.
Their conflict came to a head on December 31. Feeback scheduled a safety
meeting for that afternoon because his department had not completed its
required annual safety training. Swift usually let employees go home early on
New Year’s Eve. Mulgrew pulled rank, called off the safety meeting, sent the
employees home for the holiday, and summoned Feeback and Carl to his office.
Mulgrew criticized Feeback at length. Mulgrew emphasized that Feeback’s
department had the highest absenteeism rate; Feeback replied that his
department also had the lowest turnover rate. Mulgrew told Feeback that he
should be listening with his “mouth shut and his arms open.” Mulgrew said
another employee quoted Feeback as saying Mulgrew was the worst manager
Feeback ever had. Feeback said nothing more, and the meeting ended.
Later that evening, at 5:42 p.m., Feeback sent two text messages to
Mulgrew. The first said, “FUCK You!” The second said, “Believe who and what
you want.” Feeback did not follow up with any text or other communication
apologizing or claiming he sent Mulgrew those texts by mistake. Before that New
Year’s Eve, the last time Feeback had texted Mulgrew was September 15.
5
That same evening, Mulgrew sent a screenshot of Feeback’s messages to
Pete Charboneau, Swift’s HR Director, and to Carl. Charboneau interviewed
Feeback the next morning. Feeback admitted that he sent the texts to Mulgrew
but contended “it was by mistake” and that he meant to send those texts to a
friend instead. Charboneau asked Feeback why, if that was the case, he did not
rescind the messages or contact Mulgrew to explain and apologize. Feeback
replied that he did not know how to rescind a text and hadn’t seen Mulgrew yet
that morning to explain. Charboneau suspended Feeback on the spot and
continued his investigation.
On January 4, 2016, Swift terminated Feeback’s employment. According
to Charboneau, Feeback was fired because of the offensive text he sent Mulgrew.
Meanwhile, Swift had already begun replacing the old trolleys, addressing the
safety issue that Feeback raised earlier. At this time, Swift’s Marshalltown facility
employed more than 100 individuals who were age sixty or older. Feeback would
have been eligible to retire within two years. Swift filled his position with another
longstanding employee, a fifty-year-old man.
Feeback sued Swift, Mulgrew, and Carl (collectively Swift) alleging age
discrimination, retaliation, workplace harassment, and wrongful termination in
violation of public policy. At his deposition, Feeback admitted that he sent the
inappropriate text messages to Mulgrew on New Year’s Eve but asserted they
were meant for a friend. Feeback admitted that he never re-sent the messages to
that friend. He never provided any context to explain why he meant to text those
words to his friend. He also admitted that he had no personal knowledge that
6
any other Swift employees had been terminated because of their age. He never
claimed anyone at Swift mentioned his age in connection with his termination or
job performance.
Feeback subsequently withdrew his retaliation claim. Swift moved for
summary judgment on his three remaining claims. In resisting the motion,
Feeback submitted an affidavit that included a list of Swift employees over the
age of fifty-five who had been terminated, demoted, or forced out since 1994 and
a list of employees who had used profanity at Swift. The district court granted
summary judgment in favor of Swift on all claims. The district court determined
that his evidence of workplace harassment—negative comments by Carl and
Mulgrew—was insufficient to show a hostile work environment. The district court
concluded that Feeback’s claim of wrongful discharge in violation of public policy
failed because he lacked evidence that his safety complaints were a determinative
factor in his discharge. The court noted Feeback’s last complaint about the
trolley was seven months before his termination and Charboneau was unaware
of Feeback’s safety complaints.
Addressing the age discrimination claim, the district court noted that
“Mr. Feeback has offered no direct evidence of discrimination” and “does not
allege that he was ever subjected to any age-related comments.” The court
observed Feeback relied “on indirect evidence of discriminatory motive.”
Accordingly, the court applied the McDonnell Douglas burden-shifting analysis
on summary judgment. The court assumed based on his age, job qualifications,
and termination that Feeback met his initial burden to make “out a prima facie
7
case of age discrimination.” Next, the court determined that “Swift articulated a
legitimate, nondiscriminatory reason for Mr. Feeback’s termination: misconduct
for swearing at a supervisor via text message.” The district court reviewed the
record, including evidence of profanity of other employees and older workers who
had been demoted or terminated. The court concluded that Feeback “failed to
present sufficient evidence from which a reasonable jury could infer that Swift’s
legitimate, nondiscriminatory reason for termination was pretextual and age
discrimination was Swift’s actual reason for termination.”
Feeback appealed, and we transferred the case to the court of appeals,
which affirmed summary judgment on his claims for workplace harassment and
wrongful termination in violation of public policy. The court of appeals reversed
summary judgment on the age discrimination claim, concluding that a genuine
issue of material fact existed about “who[m] Feeback meant to text” and that
inferences of discrimination arose from the brevity of Swift’s investigation, the
culture of workplace profanity, and the number of other older workers who had
been terminated or demoted. Swift applied for further review; Feeback resisted.
We granted further review.
II. Standard of Review.
We exercise our discretion to limit our review to the age-discrimination
claim. The decision of the court of appeals shall stand as the final opinion in this
appeal affirming summary judgment dismissing Feeback’s claims for workplace
harassment and wrongful termination in violation of public policy. See Papillon v.
Jones, 892 N.W.2d 763, 769 (Iowa 2017).
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“We review summary judgment rulings for correction of errors at law.”
Slaughter v. Des Moines Univ. Coll. of Osteopathic Med., 925 N.W.2d 793, 800
(Iowa 2019) (quoting Deeds v. City of Marion, 914 N.W.2d 330, 339 (Iowa 2018)).
“Summary judgment is proper when the movant establishes there is no genuine
issue of material fact and it is entitled to judgment as a matter of law.” Id.(quoting Deeds, 914 N.W.2d at 339). “We view the record in the light most
favorable to the nonmoving party.” Id. (quoting Deeds, 914 N.W.2d at 339).
III. Analysis.
Feeback lacks direct evidence that Swift fired him because of his age.
Rather, Feeback relies on indirect evidence in attempting to raise an inference of
discrimination. The parties disagree whether the McDonnell Douglas analytical
framework should be applied on summary judgment for his age discrimination
claim under the ICRA. We first address that question and modify the framework
for summary judgment on ICRA discrimination claims to align with the causation
standard at trial. We then review the summary judgment record and determine
that Feeback failed to generate a genuine issue of material fact precluding
summary judgment on his age discrimination claim.
A. Whether the District Court Erred by Using the McDonnell Douglas
Framework for Summary Judgment. The district court applied the McDonnell
Douglas burden-shifting framework in granting Swift’s motion for summary
judgment on age discrimination. Feeback argues that framework should no
longer be used; Swift argues that framework still controls. In Hawkins v. Grinnell
Regional Medical Center, we abandoned use of the McDonnell Douglas analysis
9
at trial when instructing the jury on ICRA discrimination and retaliation claims.
929 N.W.2d 261, 272 (Iowa 2019). We directed our state trial courts to apply the
Price Waterhouse motivating factor causation test when instructing the jury. Id.(citing Price Waterhouse v. Hopkins, 490 U.S. 228, 258 (1989), superseded by
statute, Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 (codified
at 42 U.S.C. § 2000e–2(m))). We also approved the “same-decision defense”
adopted in Price Waterhouse “if properly pled and proved” by the defendant. Id.
Accordingly, for cases that go to trial,
when an employee proves discrimination was a motivating factor in
the employer’s actions, the employer could avoid liability “by proving
by a preponderance of the evidence that it would have made the
same decision even if it had not taken the plaintiff’s gender [or other
protected characteristics] into account.”
Id. (alteration in original) (quoting Price Waterhouse, 490 U.S. at 258).
Hawkins did not address the continued use of the McDonnell Douglas
framework at summary judgment, and we subsequently made clear that “[w]e did
not disturb our prior law as it applies to summary judgment” in Hedlund v. State,
930 N.W.2d 707, 719 n.8 (Iowa 2019). In Hedlund, we applied the McDonnell
Douglas framework in affirming summary judgment dismissing an age
discrimination claim. Id. at 722–23. We also held Hedlund’s age discrimination
claim failed “outside of the McDonnell Douglas framework.” Id. at 723. We left
open the question whether the McDonnell Douglas framework should be used on
summary judgment going forward. See id. at 719 (“We do not need to decide this
issue because, either way, we conclude that Hedlund has failed to raise a
genuine issue of material fact.”).
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Three justices dissented in part, concluding that we should join other
courts in abandoning the McDonnell Douglas framework at summary judgment
so that the same causation standard applies at summary judgment and trial.
See id. at 726–35 (Appel, J., concurring in part and dissenting in part, joined by
Cady, C.J. and Wiggins, J.). Feeback relies on the Hedlund dissent to argue we
should abandon the McDonnell Douglas framework for summary judgment. Swift
relies on the Hedlund majority to urge that we retain it.
We now modify the McDonnell Douglas framework for summary judgment
on ICRA discrimination claims that rest on indirect evidence. We do so to align
the summary judgment test with the mixed-motive causation standard and the
same-decision defense at trial. Under our modified McDonnell Douglas test,
employees “must carry the initial burden of establishing a prima facie case of
age discrimination.” Id. at 720 (majority opinion). Employees do so by showing
that they are members of a protected group (i.e., age sixty), were qualified for
their positions, and the circumstances of their discharge raised an inference of
discrimination. See id.; Rumsey v. Woodgrain Millwork, Inc., 962 N.W.2d 9, 22
(Iowa 2021); see also Beasley v. Warren Unilube, Inc., 933 F.3d 932, 937 (8th Cir.
2019). Then, the employer must “ ‘articulate some legitimate, nondiscriminatory
reason’ for its employment action.”3 Hedlund, 930 N.W.2d at 720 (quoting
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)); see Hawkins,
3The district court correctly ruled that Swift proffered a legitimate, nondiscriminatory
reason for terminating Feeback: insubordination. See Hedlund, 930 N.W.2d at 720 (holding that
communicating “negative and disrespectful messages” about the leadership team provided a
“legitimate, nondiscriminatory reason[]” for terminating Hedlund).
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929 N.W.2d at 272. At that point, the burden shifts back to the employee to
demonstrate the employer’s proffered reason is pretextual or, while true, was not
the only reason for his termination and that his age was another motivating
factor. Hawkins, 929 N.W.2d at 272.
Iowa Rule of Civil Procedure 1.981(5) provides a compatible
burden-shifting framework on summary judgment:
When a motion for summary judgment is made and supported as
provided in this rule, an adverse party may not rest upon the mere
allegations or denials in the pleadings, but the response, by
affidavits or as otherwise provided in this rule, must set forth
specific facts showing that there is a genuine issue for trial. If the
adverse party does not so respond, summary judgment, if
appropriate, shall be entered.
And as we have long emphasized,
The resistance must set forth specific facts which constitute
competent evidence showing a prima facie claim. By requiring the
resister to go beyond generalities, the basic purpose of summary
judgment procedure is achieved: to weed out “[p]aper cases and
defenses” in order “to make way for litigation which does have
something to it.”
Slaughter, 925 N.W.2d at 808 (alteration in original) (quoting Thompson v. City
of Des Moines, 564 N.W.2d 839, 841 (Iowa 1997)). To serve that salutary purpose,
we reiterate,
Summary judgment is not a dress rehearsal or practice run; “it is
the put up or shut up moment in a lawsuit, when a [nonmoving]
party must show what evidence it has that would convince a trier of
fact to accept its version of the events.”
Id. (alteration in original) (quoting Hammel v. Eau Galle Cheese Factory, 407 F.3d
852, 859 (7th Cir. 2005)).
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Today’s case is a textbook example illustrating the burden-shifting
function. Swift filed a motion for summary judgment supported by affidavit and
deposition testimony showing Feeback was terminated for insubordination: a
legitimate, nondiscriminatory reason. Under both rule 1.981(5) and the modified
McDonnell Douglas test, to survive summary judgment, Feeback had to show he
had admissible evidence to establish Swift’s proffered reason was a pretext for
age discrimination and his age was a motivating factor for his termination. The
district court ruled that Feeback fell short; the court of appeals reversed and
found he raised genuine issues of fact precluding summary judgment. We turn
now to the summary judgment record.
B. Whether Any Genuine Issue of Material Fact Precluded Summary
Judgment on Feeback’s Age Discrimination Claim. The district court
concluded that Feeback failed to show he had sufficient evidence to convince a
reasonable jury that Swift’s proffered reason for terminating him,
insubordination, was a pretext for age discrimination. Feeback argued, and the
court of appeals agreed, that he raised fact questions precluding summary
judgment in several ways: (1) his insistence that Mulgrew was an unintended
recipient and Swift’s “hasty” decision to fire him after Charboneau’s brief
investigation; (2) swearing was common at the workplace; and (3) many older
workers had been terminated, demoted, or forced out. We address each claim in
turn, and we conclude that Feeback failed to generate a genuine issue of material
fact precluding summary judgment on his age discrimination claim.
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1. The “mistake theory,” the brevity of Swift’s investigation, and the honest
belief rule. Feeback was fired for insubordination four days after he sent Mulgrew
the offensive texts. Charboneau, as HR director, handled the investigation and
concluded Feeback was insubordinate. The court of appeals determined the
brevity of Charboneau’s investigation and Feeback’s denial that he intended the
texts for Mulgrew raised an inference that insubordination was a pretext. The
court of appeals stated,
No doubt, insubordination could prompt a termination. But
there’s a fact question about who Feeback meant to text. As soon as
he was confronted by Charboneau, Feeback insisted Mulgrew was
an unintended recipient. And other evidence arguably supports the
mistake theory. One of the two messages did not make perfect sense
in context. Granted, Mulgrew had rebuked Feeback earlier that day.
But the central dispute did not revolve around competing versions
of the truth. So the second text—“Believe who and what you want.”—
did not fit with the conversation. Indeed, Mulgrew later agreed the
second message seemed off and there could have been a “possible”
alternative recipient.
We disagree that this “mistake theory” or the short duration of Charboneau’s
investigation raise a jury question on pretext.
Charboneau did not have much to investigate. Mulgrew told him he
received the texts after he chewed out Feeback for poor performance that day.
Feeback admitted he sent the two texts to Mulgrew, beginning with “FUCK You!”
that evening. Charboneau considered Feeback’s claim he intended both texts for
a friend; he also considered the undisputed fact Feeback made no effort that
evening to apologize or explain to Mulgrew the texts were meant for another
person. Feeback admitted he did not actually re-send either text to the intended
friend. He never explained why he meant to text those words to a friend on New
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Year’s Eve. And Feeback admitted the last time he texted Mulgrew was over three
months earlier, minimizing the possibility that Feeback accidentally typed those
texts on an existing thread with Mulgrew already displayed on his phone. And
the second text, “Believe who and what you want,” actually does make sense in
context because Mulgrew had rebuked Feeback for telling another worker that
Mulgrew was the worst boss Feeback ever had (an allegation Feeback did not
deny). The second text can be read as suggesting Mulgrew believed whoever told
him Feeback badmouthed him behind his back. Charboneau testified he
concluded Feeback had been insubordinate. The facts reasonably support that
conclusion.
The question is not whether Feeback sent the texts accidentally; the
question is whether Charboneau had a good-faith honest belief that Feeback was
insubordinate. He did. We now adopt and apply the “honest belief rule.” See
Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 996, 1002 (8th Cir. 2012).
As the United States Court of Appeals for the Eighth Circuit explained:
Our precedent establishes that the “critical inquiry in
discrimination cases like this one is not whether the employee
actually engaged in the conduct for which he was terminated, but
whether the employer in good faith believed that the employee was
guilty of the conduct justifying discharge.”
Id. (quoting McCullough v. Univ. of Ark. for Med. Scis., 559 F.3d 855, 861–62 (8th
Cir. 2009)). To survive summary judgment, Feeback “must show that [his]
employer did not honestly believe the legitimate reason that it proffered in
support of the adverse action.” Id. Feeback made no such showing.
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Nor does the brevity of Charboneau’s investigation support an inference of
discrimination. “The appropriate scope of an internal investigation . . . is a
business judgment, and we do not review the rationale behind such a decision.”
Id. at 1005. “Shortcomings in an investigation alone, moreover, are not enough
to make a submissible case.” Id. “Employers are allowed to make even hasty
business decisions, so long as they do not discriminate unlawfully.” Id. There
was nothing more for Charboneau to investigate; he interviewed the people
involved; he had the texts, their context and timing, and Feeback’s admissions
that he sent the texts from his phone to Mulgrew shortly after he chewed him
out. Charboneau was not required to believe Feeback’s claim that the texts were
intended for another. “Employment discrimination laws grant us no power ‘to sit
as super-personnel departments reviewing the wisdom or fairness of the
business judgments made by employers, except to the extent that those
judgments involve intentional discrimination.’ ” Vroegh v. Iowa Dep’t of Corr.,
972 N.W.2d 686, 695 (Iowa 2022) (quoting Hutson v. McDonnell Douglas Corp.,
63 F.3d 771, 781 (8th Cir. 1995)). The court of appeals erred by holding that
Feeback’s mistake theory or the brevity of Charboneau’s investigation raised a
jury question on whether insubordination was a pretext for age discrimination.
2. The culture of profanity at the meatpacking plant. No one should be
surprised that Feeback had evidence swearing was commonplace at Swift’s
Marshalltown meatpacking facility. He offered names of seventy-three other
employees who cursed, sometimes in the presence of supervisors, who were not
disciplined for their foul language. Mulgrew himself cursed at Feeback. The court
16
of appeals held that because profanity was commonplace, a jury could find
Swift’s proffered reason for firing Feeback was a pretext for age discrimination.
We disagree. Nobody besides Feeback texted “FUCK You!” to the plant manager
after a negative performance review.
We agree that a “common approach to show pretext is to introduce
evidence that the employer treated similarly-situated employees in a disparate
manner.” Beasley, 933 F.3d at 938. “However, ‘the test for whether someone is
sufficiently similarly situated, as to be of use for comparison, is rigorous.’ ” Id.(quoting Johnson v. Securitas Sec. Servs. USA, Inc., 769 F.3d 605, 613 (8th Cir.
2014) (en banc)). Indeed, the Eighth Circuit recently reiterated that “individuals
used for comparison must have dealt with the same supervisor, have been
subject to the same standards, and engaged in the same conduct without any
mitigating or distinguishing circumstances.” Gardner v. Wal-Mart Stores, Inc.,
2 F.4th 745, 750 (8th Cir. 2021) (quoting Johnson, 769 F.3d at 613).
In our view, Feeback must prove that he and “the other employees were
‘similarly situated in all relevant respects.’ ” Ridout v. JBS USA, LLC, 716 F.3d
1079, 1085 (8th Cir. 2013) (quoting Lynn v. Deaconess Med. Ctr.-W. Campus,
160 F.3d 484, 487 (8th Cir. 1988), abrogated by Torgerson v. City of Rochester,
643 F.3d 1031 (8th Cir. 2011) (en banc)). But Feeback need not show the other
employees committed “the exact same offense.” Id. (quoting Lynn, 160 F.3d at
488). Rather, he must establish that he “was treated differently than other
employees whose violations were of comparable seriousness.” Id. (quoting Lynn,
160 F.3d at 488). Feeback failed to make that showing. There is a big difference
17
between swearing around a boss and texting “FUCK You!” to the boss after he
chewed you out. Feeback identified no other Swift employee who committed an
offense of comparable seriousness without being terminated. The court of
appeals erred in concluding that a culture of profanity at Swift supports an
inference that its proffered reason (insubordination) for terminating Feeback was
a pretext for age discrimination.
The United States Court of Appeals for the Sixth Circuit addressed a
similar culture-of-profanity claim in Hausler v. General Electric Co., 134 F. App’x
890 (6th Cir. 2005). Hausler yelled, “Fuck you. That’s bullshit,” directly at his
supervisor and was terminated from employment three days later. Id. at 891. He
sued for age discrimination and argued that because profanity was common at
the workplace, the employer’s proffered reason for terminating him
(insubordination) was a pretext for age discrimination. The district court granted
summary judgment dismissing Hausler’s age discrimination claim. Id. at 892.
The facts, procedural posture, and arguments of the parties are strikingly similar
to Feeback’s case:
Feeback Hausler
60 years old; employed 30 years at 49 years old; employed 20 years at
Swift G.E.
Had argument with supervisor Had argument with supervisors
Texted, “FUCK you!” and “Believe who Yelled, “Fuck you. That’s bullshit,” at
and what you want,” to plant manager supervisor
Terminated four days later Terminated three days later
Sued for age discrimination Sued for age discrimination
District court granted summary District court granted summary
judgment for employer judgment for employer
District and appellate courts applied District and appellate courts applied
McDonnell Douglas McDonnell Douglas
18
Evidence of rampant profanity in the Evidence of rampant profanity in the
workplace did not establish a genuine workplace did not establish a genuine
issue of material fact on pretext when issue of material fact on pretext when
plaintiff directed profanity at plaintiff directed profanity at
supervisor supervisor
See id. at 890–94.
The Sixth Circuit squarely rejected Hausler’s contention that profanity was
so common in the workplace that there was a fact question on pretext; that is,
whether he was terminated for his age, not for insubordination. Id. at 893. The
Sixth Circuit concluded there is a difference between swearing generally and
swearing at the supervisor. Id. The same is true for Feeback.
3. Other older management employees who were forced out since 1994. The
court of appeals agreed with Feeback that he raised an inference of
discrimination by identifying other older employees who suffered adverse
employment actions. Like the district court, we conclude this evidence was
insufficient to avoid summary judgment.
Feeback’s affidavit named nine people over age fifty-five who were fired or
demoted after 1994. But Feeback admitted in his deposition that he lacked
personal knowledge as to whether specific employees were terminated because
of their age. Under the “contradictory affidavit rule,” the district court
appropriately disregarded his affidavit testimony about other employees. See
Susie v. Fam. Health Care of Siouxland, P.L.C., 942 N.W.2d 333, 339 (Iowa 2020)
(“The essence of this rule is that there is no genuine issue of fact because the
deposition testimony precludes consideration of contradictory affidavits.”).
19
Feeback does not claim he was personally involved in management’s
decision to fire or demote these individuals. Apart from their ages, he offered no
direct evidence that age was the motivating factor for their terminations or
demotions. Feeback’s unsupported speculation that these individuals were
forced out because of their age is insufficient to raise a jury question. See
Godfrey v. State, 962 N.W.2d 84, 106 (Iowa 2021) (“Godfrey’s personal,
conclusory beliefs are insufficient as a matter of law to generate a fact question
for the jury.”); see also Hausler, 134 F. App’x at 894 (agreeing with the district
court that evidence supervisor “disproportionately disciplined [three] older
workers . . . was insufficient to create an issue of fact as to pretext because the
statistical sample was too small and because the majority of employees under
[his] supervision were over forty years old”); McIntosh v. Country Club of Little
Rock, No. 4:17–cv–757–DPM, 2019 WL 2618145, at *1 (E.D. Ark. June 26, 2019)
(granting motion for summary judgment and stating that although plaintiff
pointed out the Country Club fired four other older employees, “there’s no
evidence that these employees were fired because of their age”); Prochaska v.
Color-Box, L.L.C., No. C04–1009–LRR, 2005 WL 1410846, at *12 (N.D. Iowa
June 1, 2005) (granting summary judgment on age discrimination claim and
rejecting argument that plaintiff’s list of other older employees who were
terminated created fact question on pretext when he admitted he lacked
firsthand knowledge about the reasons for their adverse employment decisions).
Feeback offered no expert testimony or statistical evidence that this
management-level turnover over that span of decades was unusual for a
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meatpacking plant of Swift’s size. It is undisputed that Swift employed more than
100 employees age sixty or older when Feeback was terminated. Feeback’s
affidavit testimony about what happened to other older employees failed to raise
a jury question on age discrimination.
IV. Disposition.
For the foregoing reasons, we vacate the decision of the court of appeals
on Feeback’s age discrimination claim and affirm its decision on the remaining
claims. We affirm the district court’s summary judgment on all claims.
DECISION OF COURT OF APPEALS AFFIRMED IN PART AND
VACATED IN PART; DISTRICT COURT SUMMARY JUDGMENT AFFIRMED.
All justices concur except May, J., who takes no part.