Opinion
4:21-cv-00022
2022-12-06
Linda BETZ, Plaintiff, v. FEDERAL HOME LOAN BANK OF DES MOINES, Zeeshan Kazmi, Sunil Mohandas, and Mike Wilson, Defendants.
Megan C. Flynn, Michael J. Carroll, Coppola Carroll Hockenberg, P.C., West Des Moines, IA, for Plaintiff. Haley Hermanson, Katie Lynn Graham, Nyemaster Goode PC, Des Moines, IA, for Defendant Federal Home Loan Bank of Des Moines. Haley Hermanson, Nyemaster Goode PC, Des Moines, IA, for Defendants Zeeshan Kazmi, Sunil Mohandas, Mike Wilson.
Megan C. Flynn, Michael J. Carroll, Coppola Carroll Hockenberg, P.C., West Des Moines, IA, for Plaintiff. Haley Hermanson, Katie Lynn Graham, Nyemaster Goode PC, Des Moines, IA, for Defendant Federal Home Loan Bank of Des Moines. Haley Hermanson, Nyemaster Goode PC, Des Moines, IA, for Defendants Zeeshan Kazmi, Sunil Mohandas, Mike Wilson. ORDER ROBERT W. PRATT, Judge
Before the Court is Defendants Federal Home Loan Bank of Des Moines, Zeeshan Kazmi, Sunil Mohandas, and Mike Wilson's Motion for Summary Judgment. ECF No. 107. Plaintiff Linda Betz resists Defendants' Motion. ECF No. 130. Defendant filed a Reply. ECF No. 133. The Court heard oral argument on the Motion on October 4, 2022. See ECF No. 141. The matter is fully submitted.
I. FACTUAL AND PROCEDURAL BACKGROUND
Defendant Federal Home Loan Bank of Des Moines (FHLB) is a federally chartered corporation organized under the Federal Home Loan Bank Act of 1932 (FHLBA), 12 U.S.C. §§ 1421-1449. ECF No. 132-2 ¶ 1. The Federal Housing Finance Authority (FHFA) oversees all Federal Home Loan Banks. Id. ¶ 13 (citing 12 U.S.C. § 4511). Congress has tasked the FHFA with ensuring that all Federal Home Loan Banks "operate[ ] in a safe and sound manner" by "maint[aining] . . . adequate capital and internal controls" and by "foster[ing] liquid, efficient, competitive, and resilient national housing finance markets" all in a manner "consistent with the [applicable statutes and the] public interest." 12 U.S.C. § 4513(a)(1)(B). To ensure compliance, the FHFA conducts annual on-site examinations of each Federal Home Loan Bank. ECF No. 132-2 ¶ 15 (citing 12 U.S.C. §§ 1440, 4517). During these examinations, the FHFA examiners review a bank's "internal controls and information systems[;] . . . audit systems; . . . interest rate risk exposure; . . . market risk[;] . . . liquidity and reserves; . . . asset and investment portfolio growth; . . . investments and acquisitions of assets[;] . . . overall risk management processes[;] . . . credit and counterparty risk"; record-keeping; and "such other operational and management standards as the [FHFA] determines to be appropriate." § 4513b(a)(1)-(11).
The FHFA has published Prudential Management and Operations Standards. ECF No. 132-2 ¶ 17. Standard 1, entitled "Internal Controls and Information Systems," provides:
Responsibilities of Senior Management12 C.F.R. pt. 1236, app. Pursuant to FHLB's bylaws, the President may remove any officer at any time with or without cause. Id. ¶ 64.
2. Regarding internal controls and information systems, senior management should implement strategies and policies approved by the board of directors, establish appropriate policies, monitor the adequacy and effectiveness of this function, and ensure personnel are appropriately trained and competent. The organizational structure should clearly assign responsibility, authority, and reporting relationships.
Defendant Wilson was President and Chief Executive Officer (CEO) of Defendant FHLB at all relevant times. Id. ¶ 2. Wilson announced his intent to retire in April 2019 and retired on February 7, 2020. Id. ¶¶ 2, 3. Defendant Mohandas was the Executive Vice President Chief Risk and Compliance Officer at all relevant times and reported directly to Defendant Wilson. Id. ¶ 4. Wilson's other direct reports included Executive Vice President Chief Operating Officer Dusan Stojanovic and Senior Vice President Chief Human Resources (HR) and Administrative Officer Nancy Betz. Id.
Plaintiff and Nancy Betz are not related. ECF No. 132-2 ¶ 4 n.1.
In March 2018, FHLB's Information Technology (IT) Department was overseen by Senior Vice President Chief Business Technology Officer Shawn Laird. Id. ¶ 6. The IT Department was responsible for FHLB's computer systems' structure, management, and operations. Id. On March 19, 2018, FHLB hired Plaintiff as its Senior Vice President Chief Information Security Officer to oversee FHLB's Information Security (IS) Department. Id. ¶ 8. The IS Department's purpose was to protect the availability, integrity, and confidentiality of FHLB's computer systems data; to protect sensitive information from being altered, changed, or transferred without authorization; and to protect against internal and external threats. Id. ¶ 7. Both Plaintiff and Laird reported directly to Stojanovic who oversaw FHLB's IT and IS Departments. Id. ¶¶ 5, 11.
Plaintiff had three employees directly report to her, including Manager of Information Security Rebecca Mathisen. ECF No. 132-2 ¶ 23. Plaintiff's team was responsible for ensuring FHLB complied with required Sarbanes-Oxley Act (SOX) controls. Id. ¶ 24. The team performed SOX controls utilizing access control solution SailPoint IIQ software. Id. ¶ 25. In May 2019, FHLB hired independent contractor Paul Crosthwaite as an Information Security Consultant to assist Plaintiff's team. Id. ¶ 26. On July 21, 2019, Crosthwaite and Mathisen informed Plaintiff that certain SOX controls were not being performed, others were not effective, and there was a breakdown in management understanding of the controls. Id. ¶ 30. Crosthwaite e-mailed Plaintiff advising her: "[D]o not attest to these controls being in place and effective . . . ." ECF No. 132-2 ¶ 29. Plaintiff, Crosthwaite, and Mathisen then discussed putting in place some controls that were not already in place. Id. ¶ 30. Crosthwaite explained the problem as follows:
In SOX, there are evaluations of both design, does it do what it's intended to do? And effectiveness, is it being done well? The issues that we were finding were not we have processes in place and they're not so great. It was we legit don't have controls that have previously been reported to be in place in place. So that has-that means management had been working off of incorrect information previously. So that kind of information is important to disclose. Whether the SOX committee decides it's material is a whole different conversation.Id. ¶ 31.
On August 5, 2019, Mathisen had a conversation with Mike Masiello, who was FHLB's Vice President Manager of Financial Controls, in which she interpreted him as instructing her to change certain controls to "effective" in the certification report. Id. ¶ 33. Mathisen similarly interpreted a note left by Plaintiff as Plaintiff asking Mathisen to change the internal control certification. Id. ¶ 34. On August 7, Plaintiff suggested to Mathisen that Crosthwaite's employment contract should be terminated. Id. ¶ 35. However, before any decision was made regarding Crosthwaite's employment, he submitted his resignation. Id. ¶ 36. Crosthwaite acknowledged to Mathisen there had been a "panicked response" following the revelation a few weeks earlier that some controls were not being performed and claimed he was "an easy target." Id. ¶ 36. That same day, Mathisen submitted two whistleblower complaints against Plaintiff alleging misconduct by Plaintiff that were forwarded to Defendant Wilson. Id. ¶¶ 39, 42. In her complaints, Mathisen stated that she had certified certain SOX controls as "not effective" during a risk assessment but that Plaintiff had done the opposite and certified the controls as "effective" despite being told not to. Id. ¶ 43. Mathisen, however, had not seen Plaintiff's certification and did not know that Plaintiff's certification actually matched Mathisen's in certifying the controls as "not effective." Id. ¶ 44. Mathisen further stated in her complaints that she believed Plaintiff was retaliating against her and that Mathisen would be fired for accurately filing a certification about the status of the unperformed and ineffective SOX controls. Id. ¶ 46. Mathisen also complained that Masiello had suggested a change in the documentation Mathisen filed certifying the controls. Id. ¶ 47.
Mathisen's complaints against Plaintiff were investigated by FHLB's Internal Audit Department. Id. ¶ 50. The auditors reviewed certifications related to SOX controls and Disclosure Committee sub-certifications, conducted interviews, and reviewed e-mails. Id. ¶ 52. Mathisen was interviewed the same day she filed her complaints on August 7, 2019. Id. ¶ 53. During her interview, Mathisen reported that Plaintiff's certification inaccurately listed all controls as operating effectively while Mathisen's certification accurately listed the controls operating ineffectively. Id. Mathisen also reported that Crosthwaite had resigned because he believed he would be made a scapegoat and fired anyway. Id. ¶ 54. Crosthwaite was also interviewed for the investigation into Mathisen's complaints. ECF No. 133-1 ¶ 17. Plaintiff, Masiello, and Stojanovic were not interviewed for the investigation. ECF No. 132-2 ¶ 55.
Also on August 7, Mathisen contacted Defendant Wilson to discuss an issue with certifications and controls. Id. ¶ 37. Wilson scheduled a meeting to discuss these issues with Mathisen for two days later on August 9, 2019. Id. ¶ 38. Mathisen also met with Plaintiff on August 9. Id. ¶ 56. Mathisen later testified she believed she would be fired on August 9, however, Plaintiff did not fire Mathisen. Id. Instead, Plaintiff expressed how serious of a mistake it was that the SOX controls had not been performed. Id. Plaintiff did not know how long Mathisen had been aware of the problem before reporting it to Plaintiff, so Plaintiff counseled Mathisen to "speak up immediately" if something similar ever happened again. Id. ¶ 57. There is no evidence that Plaintiff retaliated against Mathisen for either Mathisen's certification that turned out to match Plaintiff's or Mathisen's complaints against Plaintiff. Id. ¶ 13. In fact, Plaintiff did not learn of Mathisen's complaints against her until well after Plaintiff's employment was terminated. Id. ¶ 48.
An Interim Report regarding the investigation into Mathisen's complaints was completed on September 4, 2019. Id. ¶ 59. The report stated the auditors had "not seen any evidence where [Plaintiff] filed a certification that conflict[ed] with [Mathisen]'s." Id. ¶ 60. The report noted that it appeared Crosthwaite had "provid[ed] good advice on how to improve controls [and] risk assessments" and that he resigned because he believed Plaintiff was going to terminate his employment. Id. ¶ 61. The report also noted Plaintiff had "a steep learning curve" related to the "internal controls." Id. ¶ 62. Defendant Wilson received the interim report and interpreted it as raising ethical lapses and serious performance concerns. Id. ¶ 63. Wilson testified he decided to terminate the employment of Stojanovic, Masiello, and Plaintiff after reviewing the interim report. Id. ¶ 66. Wilson fired Masiello and Stojanovic on September 12, 2019, but Stojanovic's termination was not effective until November 13. Id. ¶¶ 68, 69. On October 4, 2019, Wilson sent messages to FHLB's Board of Directors regarding termination of Plaintiff's employment. Id. ¶ 70.
Following the termination of Stojanovic's employment, FHLB eliminated the position Stojanovic had held and replaced it with the new position of Chief Information Officer. Id. ¶ 77. Defendant Kazmi was retained by FHLB as an independent contractor to fill this new role on an interim basis until the incoming CEO could hire a permanent replacement. Id. ¶ 78. Defendant Kazmi signed his contract with FHLB on September 12 but did not begin working at FHLB until October 1. Id. ¶ 79.
On October 14, 2019, Defendant Kazmi allegedly told Plaintiff that "men's self-worth is tied to work, and if they don't deliver, this leads to integrity issues. Wom[e]n have outside responsibilities, so this doesn't affect them." Id. ¶ 80 (alteration in original). On October 18, Plaintiff reported the comment to HR Officer Nancy Betz. Id. ¶ 82. Nancy told Plaintiff that she would pass Plaintiff's complaint on to Wilson who found Kazmi's comment inappropriate and Wilson planned to discuss it with Kazmi. Id. ¶ 83; ECF No. 133-1 ¶ 19. The final internal audit report on the investigation into Mathisen's complaints was issued the following day on October 19. See ECF No. 132-2 ¶ 74. The final report noted Wilson "has determined that [Plaintiff] should be terminated because of actions described in [Mathisen's] complaint and also because of the ineffective implementation of SailPoint IIQ that she oversaw and her questionable prioritization of information security (IS) projects." Id. ¶ 75. The report further noted, the auditors had "observed a pattern in [Plaintiff]'s behavior that, in [their] view, exhibits a blend of potential retaliation, a lack of listening to others that flag concerns, and a lack of depth with awareness/knowledge of controls (or leaving an impression related to the importance/priority of controls)." Id. ¶ 76. With regard to Stojanovic, the report stated his employment was terminated "without cause" and "[t]he primary reason for his dismissal was that he was not a good fit for the COO position in" Wilson's view. ECF No. 133-1 ¶ 20; ECF No. 131-3 at 181.
On January 3, 2020, Defendant Wilson informed Plaintiff that her employment was terminated. Id. ¶ 97. Following Plaintiff's employment termination, her position as CISO was eliminated as part of a reorganization of the IS department. Id. ¶ 100. Mathisen is still employed by FHLB. Id. ¶ 58.
On March 30, 2020, Plaintiff filed a complaint with the Iowa Civil Rights Commission identifying her sex and retaliation as reasons her employment was terminated. Id. ¶ 102. On January 21, 2021, Plaintiff filed her First Amended and Substituted Petition at Law and Jury Demand in the Iowa District Court for Polk County. ECF No. 1-11. Defendants removed the action to federal court. ECF No. 1. In her state-court pleading, Plaintiff alleges sex discrimination, harassment, and retaliation against all Defendants in violation of the Iowa Civil Rights Act (ICRA), Iowa Code §§ 216.1-216.22, and Title VII (Counts I-IV). She further alleges defamation, invasion of privacy (false light), and blacklisting against all Defendants (Counts V-VII). Plaintiff alleges tortious interference with her employment rights against Defendant Kazmi (Count VIII) and civil conspiracy against all individual Defendants (Count IX). Plaintiff also alleges wrongful termination in violation of public policy of the State of Iowa against all Defendants (Count X).
On July 19, 2021, this Court entered an Order granting in part and denying in part Defendants' Motion to Dismiss. ECF No. 44. Specifically, the Court held that Plaintiff's claims for sex discrimination, harassment, and retaliation under the ICRA (Counts I and III) were preempted to the extent they conflict with Title VII. Id. at 7. The Court further dismissed Plaintiff's state common-law claims for intentional interference with employment rights (Count VIII) and wrongful discharge (Count X) as preempted. Id. at 9. Additionally, the Court dismissed Plaintiff's claims for defamation (Count V), id. at 20; false light invasion of privacy (Count VI), id. at 22; blacklisting (Count VII), id. at 23; and civil conspiracy (Count IX), id. at 24, for failing to state a claim.
On July 1, 2022, Defendants filed a Motion for Summary Judgment on the remaining claims. ECF No. 107. In her response, Plaintiff consents to the dismissal of her sex discrimination and harassment claims under the ICRA and Title VII (Counts I and II). ECF No. 132 ¶ 3. Accordingly, the only remaining claims for the Court's consideration are Plaintiff's claims for retaliation under Title VII (Count IV) and the ICRA (Count III), to the extent Plaintiff's claim under the ICRA does not conflict with Title VII. Id.
II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 56(a) provides, "A party may move for summary judgment, identifying each claim or defense—or the part of each claim or defense—on which summary judgment is sought." Rule 56(a) mandates the entry of summary judgment upon motion after there has been adequate time for discovery "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Summary judgment is proper when the record, viewed in the light most favorable to the nonmoving party and giving that party the benefit of all reasonable inferences, shows there is no genuine issue of material fact and the moving party is therefore entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (8th Cir. 1994). A disputed issue is "genuine" when the evidence produced "is such that a reasonable jury could return a verdict for the nonmoving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is considered "material" if it "might affect the outcome of the suit under the governing law." See id. "[T]he substantive law will identify which facts are material . . . . Factual disputes that are irrelevant or unnecessary will not be counted." Id.
"In considering a motion for summary judgment the court does not weigh the evidence, make credibility determinations, or attempt to discern the truth of any factual issue." Great Plains Real Estate Dev., L.L.C. v. Union Cent. Life Ins. Co., 536 F.3d 939, 943-44 (8th Cir. 2008) (citation omitted). Rather, the court only determines whether there are any disputed issues concerning the existence of material facts and, if so, whether those disputes are genuine. See Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505; see also Wilson v. Myers, 823 F.2d 253, 256 (8th Cir. 1987) ("Summary judgment is not designed to weed out dubious claims, but to eliminate those claims with no basis in material fact."). Summary judgment is appropriately entered against a party who has failed to make a showing sufficient to establish a genuine dispute as to the existence of an element essential to its case and upon which the party will bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
When a summary judgment motion is filed, the moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact based on the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any. See id. at 323, 106 S.Ct. 2548; Anderson, 477 U.S. at 248, 106 S.Ct. 2505. If the moving party has carried its burden, the nonmoving party must then go beyond its original pleadings and designate specific facts showing that there remains a genuine issue of material fact that needs to be resolved by a trial. See Fed. R. Civ. P. 56(c). This additional showing can be by affidavits, depositions, answers to interrogatories, or admissions in the record. Id.; Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548; Anderson, 477 U.S. at 257, 106 S.Ct. 2505. "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505. Indeed, "[t]o survive a motion for summary judgment, the nonmoving party must substantiate his allegations with sufficient probative evidence [that] would permit a finding in [his] favor based on more than mere speculation, conjecture, or fantasy." Barber v. C1 Truck Driver Training, LLC, 656 F.3d 782, 801 (8th Cir. 2011) (second and third alterations in original) (quoting Putman v. Unity Health Sys., 348 F.3d 732, 733-34 (8th Cir. 2003)). Mere "self-serving allegations and denials are insufficient to create a genuine issue of material fact." Anuforo v. Comm'r, 614 F.3d 799, 807 (8th Cir. 2010).
III. ANALYSIS
Title VII prohibits an employer from retaliating against an employee for engaging in a protected action such as making a sexual discrimination or harassment complaint. 42 U.S.C. § 2000e-3(a). A plaintiff may establish a claim for retaliatory discharge through either direct or indirect evidence. Liles v. C.S. McCrossan, Inc., 851 F.3d 810, 818 (8th Cir. 2017). Here, Plaintiff does not assert direct evidence, therefore, the Court analyzes Plaintiff's claim utilizing the burden-shifting framework of McDonnell Douglas, Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under that framework, Plaintiff must first establish a prima facie case of retaliation by showing (1) she engaged in a statutorily protected activity; (2) she was subjected to an adverse employment action; and (3) a causal connection exists between her participation in the protected activity and the adverse employment action. Van Horn v. Best Buy Stores, L.P., 526 F.3d 1144, 1147 (8th Cir. 2008). If successful, the burden shifts to Defendant "to articulate a legitimate, non-retaliatory reason for the adverse action." Liles, 851 F.3d at 818 (citation omitted). If Defendant provides such a reason, the burden then shifts back to Plaintiff to present evidence that Defendant's proffered reason is pretext for unlawful retaliation. Id.
The ICRA's retaliation provision "mirrors almost exactly" that of Title VII. Haskenhoff v. Homeland Energy Sols., LLC, 897 N.W.2d 553, 584 (Iowa 2017). Thus, courts analyze a plaintiff's claims for retaliation under both statutes using the same framework. Id. ("The ICRA was modeled after Title VII, and therefore [Iowa courts] have consistently employed federal analysis when interpreting the ICRA." (quoting Estate of Harris v. Papa John's Pizza, 679 N.W.2d 673, 677-78 (Iowa 2004))); see Van Horn, 526 F.3d at 1148. Recently, Iowa has adopted a lower standard of causation for retaliation claims than Title VII's but-for standard. Compare Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 352, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013) ("Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action.") with Rumsey v. Woodgrain Millwork, Inc., 962 N.W.2d 9, 32 (Iowa 2021) (acknowledging "that [the motivating factor causation standard' applies to retaliation claims under the ICRA" (citation omitted)). However, because Plaintiff's claim for retaliation under the ICRA is preempted to the extent it conflicts with Title VII, the Court applies the federal standard for causation.
Plaintiff conceded in post-argument briefing that the federal but-for standard of causation applies in this case. ECF No. 146 at 1.
A. Plaintiff's Prima Facie Case
A plaintiff's " 'unsupported, self-serving allegation[ ]' that her employer's decision was based on retaliation does not establish a genuine issue of material fact" to survive summary judgment. Jackson v. United Parcel Serv., Inc., 643 F.3d 1081, 1088 (8th Cir. 2011) (citation omitted). Generally, " 'more than a temporal connection' [is required] to establish a retaliation claim." Wright v. St. Vincent Health Sys., 730 F.3d 732, 738-39 (8th Cir. 2013) (citation omitted). However, timing alone "may be 'sufficient to create an inference of retaliation' " to establish a prima facie case at the summary judgment stage. Bassett v. City of Minneapolis, 211 F.3d 1097, 1105 (8th Cir. 2000), abrogated on other grounds by Torgerson v. City of Rochester, 643 F.3d 1031, 1043, 1059 (8th Cir. 2011) (en banc); see Mathews v. Trilogy Commc'ns, Inc., 143 F.3d 1160, 1166 (8th Cir. 1998) (acknowledging that "a time lapse of only two months between the exercise of protected rights and a discharge may create the inference of a retaliatory motive"); Keys v. Lutheran Fam. & Childs. Servs. of Mo., 668 F.2d 356, 358 (8th Cir. 1981) (holding that less than a two-month period between protected activity and adverse employment action created an inference of retaliation).
Here, Plaintiff asserts she engaged in a protected activity when she complained to HR about Defendant Kazmi's comment on October 18, 2019. Plaintiff alleges she suffered an adverse employment action when Defendant FHLB terminated her employment on January 3, 2020. For purposes of this Motion, Defendants concede that Plaintiff has established the first two elements of her prima facie case. See ECF No. 133 at 3. Defendants instead argue Plaintiff cannot prove a causal connection between her participation in an alleged protected activity and her subsequent firing, and therefore, they are entitled to summary judgment as a matter of law.
Defendants' argument is simple: Defendant Wilson made the decision to terminate Plaintiff's employment in September 2019 after receiving the September 4 interim report investigating Mathisen's whistleblower complaints. Therefore, Defendants assert, Plaintiff cannot prove a causal connection between Plaintiff's reporting Defendant Kazmi's comment to HR and her subsequent discharge because the decision to discharge her was made weeks before Kazmi made the comment and even before he started working for FHLB.
Plaintiff responds that, although Wilson contemplated terminating Plaintiff's employment in September and discussed it with FHLB's Board in early October, the ultimate decision to discharge her came after she complained about Kazmi's comment. Plaintiff alleges Kazmi made the offensive comment to her on October 14, she complained to HR about it on October 18, and the final report resulting from the investigation into Mathisen's complaints—which stated that Wilson "ha[d] determined that [Plaintiff's employment] should be terminated [in part] because of actions described in [Mathisen's] complaint," ECF No. 132-2 ¶ 75—was finalized only one day later on October 19. Plaintiff further asserts Wilson was still wavering on the decision to discharge her in December 2019.
Admittedly, the exact date of when Plaintiff reported Kazmi's comment to HR is disputed. See ECF No. 133 at 1-2 n.1. At this stage of the litigation, the Court "[v]iew[s] the evidence in the light most favorable to [Plaintiff] and resolv[es] all conflicts in the evidence in her favor." Bassett, 211 F.3d at 1105. Thus, the Court accepts Plaintiff's assertion that she reported Kazmi's comment to HR on October 18, 2019.
Ultimately, "[t]he burden to show a prima facie case is not difficult." Donathan v. Oakley Grain, Inc., 861 F.3d 735, 740 (8th Cir. 2017). Defendants assert the timing of Wilson's decision to terminate Plaintiff's employment is undisputed, but it is not. Wilson attests that he made the decision to discharge Plaintiff in September and communicated that decision to the Board on October 4. ECF No. 107-3 at 92 ¶¶ 5, 8; ECF No. 107-2 ¶ 70. However, Wilson's messages to the Board regarding Plaintiff's employment on October 7 are both conditional, see ECF No. 131-3 at 191-92 ("If [Plaintiff] is terminated . . . ." (emphasis added)), and equivocal, see id. at 186-90 ("The hurdle will be high to justify retaining [Plaintiff]."). And even Wilson's messages to the Board in December acknowledge that he would be open to receiving information that may cause him to reconsider his decision to fire her. Id. at 194. Viewing the evidence in the light most favorable to Plaintiff, the Court believes a reasonable jury could find that while Wilson had contemplated discharging Plaintiff in September, his decision was not final even as of October 7. Plaintiff alleges Kazmi made the sexist comment to her on October 14, and she reported it to HR on October 18. The final report issued the following day noted that Wilson had decided to terminate Plaintiff's employment. The Court concludes that the close temporal proximity here between when Plaintiff reported the comment to HR and when the final report that stated Wilson had decided to terminate Plaintiff's employment was issued is sufficient to establish a prima facie case of retaliatory discharge.
B. Defendants' Reasons for Discharging Plaintiff
Next, the Court considers whether Defendants have met their burden to put forth a legitimate, non-retaliatory reason for terminating Plaintiff's employment. Defendants assert Wilson decided to terminate Plaintiff's employment "[b]ased on the [September 4] interim report, Mathisen's complaints, [Plaintiff]'s ineffective implementation of SailPoint IIQ, and her questionable prioritization of information security projects." ECF No. 107-2 ¶ 67. "Federal courts do not sit as a super-personnel department that reexamines an entity's business decisions." Harvey v. Anheuser-Busch, Inc., 38 F.3d 968, 973 (8th Cir. 1994) (citation omitted). Defendants have met their burden to provide a legitimate, non-retaliatory reason for discharging Plaintiff. Thus, the burden shifts back to Plaintiff to put forth evidence from which a reasonable jury could find that Defendants' reasons for her discharge were pretextual.
C. Evidence of Pretext
"An employee's attempt to prove pretext . . . requires more substantial evidence [than it takes to make a prima facie case] . . . because unlike evidence establishing the prima facie case, evidence of pretext . . . is viewed in light of the employer's justification." Smith v. Allen Health Sys., Inc., 302 F.3d 827, 834 (8th Cir. 2002) (citation omitted); Hairston v. Wormuth, 6 F.4th 834, 843 (8th Cir. 2021). "To show pretext, the [employee] must both discredit [the employer's] proffered reasons for the alleged retaliatory action and show that the circumstances permit drawing a reasonable inference that retaliation was the real reason for the adverse employment action." Sellars v. CRST Expedited, Inc., 13 F.4th 681, 694 (8th Cir. 2021), cert. denied, — U.S. —, 142 S. Ct. 1361, 212 L.Ed.2d 322 (2022).
Plaintiff contends that Defendant Wilson did not really rely on the asserted reasons for her discharge and that these reasons were pretext. She argues Wilson could not have relied on Mathisen's complaints because they were false and Mathisen submitted them to save her own job. Plaintiff further argues Wilson could not have relied on the poor implementation of SailPoint IIQ because that failure was attributable to Mathisen. Additionally, Plaintiff asserts Wilson could not have relied on the stated reason that Plaintiff was discharged due to her "questionable prioritization of IS projects," ECF No. 132-2 ¶ 74, because her performance on the job "significantly exceed[ed] expectations" as it related to her success in improving information security at FHLB. ECF No. 131-3 at 106. Even if Plaintiff can discredit the reasons Wilson gave for firing her, she must also "show that the circumstances permit drawing a reasonable inference that retaliation was the real reason for the adverse employment action." Sellars, 13 F.4th at 694.
Plaintiff relies on the same evidence to demonstrate a fact question as to whether Defendants' stated reasons for terminating her employment were pretextual that she relied on to make a prima facie showing. Plaintiff contends that Mathisen's complaints were false and the internal investigation into them was incomplete. Plaintiff asserts the auditors looked only for evidence to confirm Mathisen's allegations and did not interview Plaintiff, Stojanovic, or Masiello to attempt to determine the validity of Mathisen's allegations. "The appropriate scope of an internal investigation . . . is a business judgment." Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 996, 1005 (8th Cir. 2012). Indeed, "[s]hortcomings in an investigation alone . . . 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 [or retaliate] unlawfully . . . ." Id.
The question in this case is not whether Wilson based his termination decision on proper grounds, i.e., a valid complaint by Mathisen or even a perfect investigation into the matter; rather, the question is whether Wilson believed he had proper grounds to terminate Plaintiff's employment. Goodman v. Performance Contractors, Inc., 363 F. Supp. 3d 946, 961 (N.D. Iowa 2019). Mathisen's complaints were filed in August and the investigation began immediately. The interim investigation report was provided to Wilson on September 4. The unrefuted evidence shows Wilson was at least contemplating discharging Plaintiff in September and early October based in part on Mathisen's complaints and the interim findings of the investigation, which both occurred prior to Kazmi making the alleged sexist comment to Plaintiff. No reasonable juror could draw the inference that Mathisen's complaints and the ensuing investigation were fabricated as a way to retaliate against Plaintiff for conduct that did not occur until mid-October.
Mathisen's complaints may have been based on her incorrect belief that Plaintiff had certified the controls differently, but the record shows Wilson believed the allegations in Mathisen's complaints and relied on them in making the termination decision. See Liles, 851 F.3d at 821 ("[T]he critical inquiry . . . 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." (citation omitted)). Wilson's decision to terminate Plaintiff's employment and the scope of the internal investigation that contributed to his decision were business judgments to which this Court must defer. The falseness of Mathisen's complaints and any inadequacy of the internal investigation into them do not raise a reasonable inference that Wilson's reasons for firing Plaintiff were pretext for unlawful retaliation. See Johnson v. AT&T Corp., 422 F.3d 756, 762-63 (8th Cir. 2005) (holding that an employee's termination based on the employer's honest belief that employee had made bomb threats is not pretext "even if [the employer] had no solid proof that [the employee] made the bomb threats, and even if [the employer] was mistaken in its belief that [the employee] had made the threats"); see also Roeben v. BG Excelsior Ltd. P'ship, 545 F.3d 639, 643 (8th Cir. 2008) ("Even if [the plaintiff] could show that the . . . investigation was poorly conducted or that its decision was impetuous, that alone would not allow him to survive summary judgment."). Likewise, evidence that Plaintiff was satisfactorily performing her job does not prove pretext. To prove false Wilson's reason that he discharged Plaintiff, in part, due to "the ineffective implementation of SailPoint IIQ" and her "questionable prioritization of IS projects," ECF No. 132-2 ¶ 75, Plaintiff must show Wilson "did not actually believe that her performance was deficient," Liles, 851 F.3d at 822. It is not enough for Plaintiff to say that Wilson was wrong or that the information he based his decision on was wrong. Plaintiff must put forth evidence showing that Wilson did not actually believe the reasons he gave for his decision to terminate her employment. She has failed to do so.
In fact, the evidence shows Wilson still believed Mathisen's complaints against Plaintiff had merit at his deposition in this case. ECF No. 131-3 at 93.
Next, Plaintiff claims that the timing of Wilson's termination decision soon after Plaintiff reported Kazmi's comment to HR shows Defendants' reasons for discharging her were pretextual. Temporal proximity may be enough to establish the causation element of a prima facie case, but it is "not sufficient to show that an employer's non-discriminatory [or non-retaliatory] reason for [an adverse employment action] is merely pretext." Logan v. Liberty Healthcare Corp., 416 F.3d 877, 881 (8th Cir. 2005). The evidence shows Wilson interpreted the interim report as raising ethical lapses and serious performance concerns with regard to Plaintiff. "Evidence that an employer had been concerned about a problem before the employee engaged in the protected activity undercuts the significance of the temporal proximity." Smith, 302 F.3d at 834. Based on the evidence of pretext presented "in light of the employer's justification," the Court concludes Plaintiff has not presented evidence to raise a genuine issue of fact that Wilson's reasons for terminating her employment were pretextual.
Because Plaintiff has failed to raise a genuine dispute of material fact as to pretext, the Court concludes Defendants are entitled to summary judgment as a matter of law. Accordingly, the Court grants Defendants' Motion for Summary Judgment.
IV. CONCLUSION
For the reasons stated above, the Court grants Defendants' Motion for Summary Judgment (ECF No. 107).
IT IS SO ORDERED.