Phillip E. Jones v. 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 , 2013 Iowa Sup. LEXIS 96 ( 2013 )

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
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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
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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
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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 in-
person followup. . . . Jones failed to commence disciplinary
action against the student-athletes identified by the Student-
Athlete 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 Student-
Athlete 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 Student-
Athlete. As early as the day after the alleged assault, Jones
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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 public-
policy 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-of-
interest 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-of-
interest 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 anti-
retaliation 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 name-
clearing 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
10Itis 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 Rose-
Maston 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.