Opinion
No. 4-190 / 03-0465
Filed December 8, 2004
Appeal from the Iowa District Court for Linn County, Denver D. Dillard, Judge.
Gregory Plagmann appeals the district court's denial of his claims of gender discrimination and related retaliation. AFFIRMED.
John Haraldson of the Law Office of Roger J. Kuhle, P.C. West Des Moines, for appellant.
Erika Dillon of Franczek Sullivan P.C., Chicago, Illinois, and Douglas Oelschlaeger of Shuttleworth Ingersoll, P.L.C., Cedar Rapids, for appellee.
Considered by Sackett, C.J., and Vaitheswaran and Eisenhauer, JJ.
Gregory Plagmann sued his employer, Square D Company. He alleged the company discriminated against him on the basis of sex and retaliated against him for filing a civil rights complaint. Following trial, the district court entered judgment against him on both claims. Finding no error in the district court's ruling, we affirm.
I. Background Facts and Proceedings
Square D Company manufactures circuit breakers. At the time of the incident triggering this lawsuit, Plagmann worked in the molding-manufacturing department. Part of his job was to count the completed parts, ensure that a proper identification number was attached to them, enter the information into a computer, and affix a printed tag to each part. This was to be done after the parts went through a final cleaning process. Plagmann received a written disciplinary notice for inventorying the parts before the final cleaning process. He disagreed with this disciplinary action. The day after receiving the notice, he went to the molding office and had words with the first shift supervisor who he believed had initiated the action. He subsequently received a four-day suspension notice for using "unnecessary and disrespectful language towards a supervisor."
Plagmann filed gender discrimination charges with the Cedar Rapids and Iowa Civil Rights Commissions, alleging a female coworker was only reprimanded for engaging in similar conduct. After receiving a right to sue letter, he filed suit, alleging gender discrimination and "related retaliation," in violation of the Cedar Rapids Municipal Code and the Iowa Civil Rights Act.
A copy of the charge was also forwarded to the Equal Employment Opportunity Commission.
The suit was filed in small claims court but was subsequently transferred to the district court.
While this lawsuit was pending, Plagmann filed a second discrimination charge with the Cedar Rapids and Iowa Civil Rights Commissions, alleging Square D Company disciplined him again in retaliation for filing his first civil rights charge. The Cedar Rapids Civil Rights Commission found "no probable cause" to support this allegation. The Iowa Civil Rights Commission took no action.
Meanwhile, the district court action proceeded to trial. The court ruled in favor of Square D Company and this appeal followed.
II. Gender Discrimination
In ruling on Plagmann's gender discrimination claim, the district court applied the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S. Ct. 1817, 1824-25, 36 L. Ed. 2d 668, 677-679 (1973), which according to Plagmann, was applicable where the evidence showed "inferences of discrimination." The court did not apply an alternate "mixed motive" framework derived from Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989). According to Plagmann, this framework only applied if the plaintiff was "able to produce direct evidence that an illegitimate criterion . . . played a motivating part in the employment decision."
After the district court ruled, the United States Supreme Court decided Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S. Ct. 2148, 156 L. Ed. 2d 84 (2003). In Desert Palace, the Court examined a 1991 amendment to the Federal Civil Rights Act. See 42 U.S.C. § 2000 e-2(m) (stating unlawful employment practice is established "when the complaining party demonstrates that . . . sex . . . was a motivating factor for any employment practice, even though other factors also motivated the practice"). The Court held that, given the plain language of the amendment, "direct evidence of discrimination is not required in mixed-motive cases." Desert Palace, 539 U.S. at 101-02, 123 S. Ct. at 2155, 156 L. Ed 2d at 95-96.
The Court stated that, to prove discrimination "because of" sex, the claimant must prove by a preponderance of the evidence that sex "was a motivating factor" in the adverse employment practice. Desert Palace, 539 U.S. at 101, 123 S. Ct. at 2155, 156 L. Ed. 2d at 95. To "demonstrate" that sex was a motivating factor in the employer's decision, the claimant must "meet the burdens of production and persuasion." 42 U.S.C. § 2000e[m]. To satisfy these burdens, a claimant "need only `demonstrat[e]' that an employer used a forbidden consideration with respect to `any employment practice.'" Desert Palace, 539 U.S. at 98, 123 S. Ct. at 2153, 156 L. Ed. 2d at 94. The Court concluded the claimant need not make a "heightened showing through direct evidence." Id.
On appeal, Plagmann argues that the analytical framework set forth in Desert Palace is now the appropriate framework to apply to his employment discrimination case. He asserts that application of the Desert Palace framework would lead to a judgment in his favor. Square D Company responds that Plagmann did not preserve error. We agree with Square D Company.
Generally, a claimant is foreclosed from asserting a legal theory on appeal that was not asserted in the trial court. Yockey v. State, 540 N.W.2d 418, 422 (Iowa 1995); Johnson v. Farmer, 537 N.W.2d 770, 772 (Iowa 1995). In his post-trial brief, Plagmann advocated use of the McDonnell Douglas framework. While acknowledging that the Price-Waterhouse mixed-motive framework was also available, Plagmann rejected its application, suggesting that the framework only applied to cases in which there was "direct" evidence of discrimination and further suggesting he did not have such "direct" evidence. He declined to argue that direct evidence of discrimination was not required, as the plaintiff did in Desert Palace. Instead, Plagmann stated "the proper method of legal analysis for such cases that could be utilized is that flowing from cases beginning with McDonnell-Douglas." Under these circumstances, Plagmann did not preserve error on his present claim that Desert Palace should apply to his gender discrimination claim. See Riggs v. Kansas City Missouri Public Sch. Dist., 385 F.3d 1164, 1167 (8th Cir. 2004) (stating plaintiff waived error on his claim that Desert Palace should apply when he expressly declined district court's offer to give a mixed-motive instruction).
We concede the argument made in Desert Palace may only seem "obvious" in "hindsight." See State v. Wisniewski, 171 N.W.2d 882, 887 (Iowa 1969). However, the circuit court opinion in Desert Palace was available to Plagmann at the time of trial. See Costa v. Desert Palace, Inc., 299 F. 3d 838, 853 (9th Cir. 2002). Cf. Wisniewski, 171 N.W.2d at 887 (allowing criminal defendant to challenge jury instruction on appeal based on opinion decided while appeal was pending even though defendant had not objected to instruction at trial, but stating it was neither departing from nor deleting "the rule that failure to assert a known or existing right in the trial court is fatal").
In the end, Plagmann's failure to raise Desert Palace may not matter. Our Civil Rights Act does not contain language identical to the 1991 amendment to the Federal Act construed in Desert Palace. See Iowa Code § 216(1)(a) (2000) (stating "[i]t shall be an unfair or discriminatory practice . . . [to] discriminate in employment . . . because of . . . sex"). And, while we look to federal law as a guide, Desert Palace did not decide whether the 1991 amendment to the federal Civil Rights Act applied outside the mixed-motive context to cases such as this that appear to allege only a single motive. Desert Palace 539 U.S. at 94 n. 1; 123 S. Ct. at 2151 n. 1; 156 L. Ed. 2d at 91 n. 1; Casey's General Stores, Inc. v. Blackford, 661 N.W.2d 515, 519 (Iowa 2003) (stating courts have looked to the corresponding federal statutes to help establish the framework to analyze claims and otherwise apply our statute); but see Dare v. Wal-Mart Stores, Inc., 267 F. Supp. 2d 987, 991 (D. Minn. 2003) (stating "evaluating single-motive claims under the McDonnell Douglas burden-shifting scheme inevitably and paradoxically leads to a classic mixed-motive scenario"). Moreover, at least one jurisdiction has concluded that Desert Palace "did not forecast a sea change in the Court's thinking" and had "no impact" on the jurisdiction's summary judgment opinions in the employment discrimination arena. See Griffith v. City of Des Moines, 387 F.3d 733, 735, 736 (8th Cir. 2004). Finally, as the court noted in Griffith, the United States Supreme Court has reaffirmed the viability of the McDonnell Douglas framework at least in the context of a discrimination claim under the Americans with Disabilities Act. Raytheon Co. v. Hernandez, 540 U.S. 44, 124 S. Ct. 513, 157 L. Ed. 2d 357 (2003). While these may be issues for consideration in another case, we decline to address them here. Cf. Cronquist v. City of Minneapolis, 237 F.3d 920, 925 (8th Cir. 2001) (proceeding to discuss evidence under Price-Waterhouse framework despite plaintiff's failure to preserve error on this framework).
The 1991 amendment to the federal Civil Rights Act was passed in response to Price-Waterhouse and other decisions considering the "because of" language of the earlier Civil Rights Acts. Desert Palace, 539 U.S. at 93, 123 S. Ct. at 2150, 156 L.Ed. 2d at 90.
Turning to the district court's decision as written, we must determine whether the fact-findings are supported by substantial evidence. See Vincent v. Four M Paper Corp., 589 N.W.2d 55, 59 (Iowa 1999) (setting forth standard of review). Plagmann confronted his first shift supervisor Dee Dee Laughridge. She noted in a written account of the incident that Plagmann acted in a "[t]hreatening manner," called her a "low life," and referred to other employees as "bitches." She also wrote that "[h]e was very angry," "[h]is eyes were glaring and his face was very red." She recounted that Plagmann "walked toward [her] and started to point and shake his finger at [her]." Laughridge testified at trial that she was "shocked and surprised," "threatened, . . . scared, frightened."
Human resource supervisor Scott Holmes seconded this testimony, stating:
Immediately I was taken aback because there seemed to be some type of confrontation . . . Greg Plagmann was confronting [Laughridge] and it did take me back. He was, you know, very angry and something . . . his voice was elevated, his face was red and he was — I do remember him pointing his finger within probably two feet or so approximately of [Laughridge]."
Union steward Frank Lauderdale and manufacturing engineer Tom Saunders also corroborated Laughridge's testimony.
In disciplining Plagmann for this conduct, Human Resources manager Eric Everman and supervisor Mike Murray considered an earlier incident involving a female employee, Peggy Huntington. In that incident, Huntington shouted abusive words to a supervisor in a company parking lot. Huntington received a reprimand, a disciplinary action that was one step less severe than the suspension received by Plagmann. Murray and Everman concluded that Plagmann's conduct warranted more severe discipline because Plagmann was in "very close proximity" to the supervisor, whereas the Huntington incident took place "across the parking lot." They also noted Laughridge felt threatened and intimidated, while the supervisor involved in the Huntington incident did not. Finally, they pointed out there were no witnesses to the Huntington incident, unlike the Plagmann incident.
The district court found that
The evidence produced at trial showed that Mr. Plagmann acted inappropriately toward his supervisor, Dee Dee Laughridge, and . . . his actions were sufficient to have created some degree of fright experienced by her. The circumstances, taken as a whole, were sufficient to show some degree of threatening behavior by Mr. Plagmann and insubordination on his part.
The court went on to state,
The evidence supports enough physical differences between Mr. Plagmann and Ms. Laughridge to warrant the conclusion that by a preponderance of the evidence a non-discriminatory reason was articulated. Everman and Murray could reasonably have concluded that the size and power differential between Plagmann and Laughridge was substantially different than between Huntington and her supervisor.
The record contains substantial evidence to support these findings. Based on these findings the district court concluded that, while Plagmann made out a prima facie case of discrimination, Square D Company established a non-discriminatory reason for its actions. The court also concluded that Plagmann failed to show this reason was merely a pretext for intentional discrimination. See McDonnell Douglas, 411 U.S. at 802-04, 93 S. Ct. at 1824-25, 36 L. Ed. 2d at 677-679 (setting forth burden shifting framework). The court went on to find "in favor of the Defendant." See Griffith, 387 F.3d at 735 (noting finding of pretext does not compel judgment for plaintiff). We discern no error in the court's conclusions.
Plagmann relies heavily on a statement by Human Resources Manager Everman that the company could prevail over Plagmann more easily than Laughridge. The district court stated that this "was not necessarily a statement about gender." The court opined that the statement "could also be interpreted as an assessment of the credibility of a manager versus a disciplined employee." However this statement is characterized, it does not defeat the court's findings of fact. See Beichacek v. Hiskey, 401 N.W.2d 44, 47 (Iowa 1987).
III. Retaliation
After Plagmann filed his first discrimination charge, he received a reprimand for violating Square D Company attendance policy. He was also suspended from work for four days because his absences exceeded sixty-five hours for the prior twelve-month period. Plagmann claimed this discipline was in retaliation for filing his discrimination charge.
The district court rejected this claim on two grounds. First, the court found it did not have jurisdiction over Plagmann's retaliation claim. The court stated:
When the civil rights commission issued its `no probable cause' finding, Mr. Plagmann should have appealed that decision to the District Court as provided in Section 216.17(1). Plagmann's failure to do so extinguished the retaliation claim and it must be dismissed.
Second, the district court concluded that "Plagmann's evidence on the issue of retaliation falls far short of adequate proof of a retaliation claim." Plagmann takes issue with both bases for the decision.
A. Procedural Waiver
A person must meet two conditions before filing a petition in district court for discriminatory practices. Ritz v. Wapello County Bd. of Supervisors, 595 N.W.2d 786, 790 (Iowa 1999). First, a timely complaint must be filed with the Civil Rights Commission. Id. (citing Iowa Code § 216.16(1)(a)). Second, the Commission must issue a release or right-to-sue letter after the complaint has been on file for sixty days. Id. (citing Iowa Code § 216.16(1)(b)). Federal and Iowa law carve out an exception for certain claims arising after a charge of discrimination has been filed. See Nichols v. American Nat'l Ins. Co., 154 F.3d 875, 886-87 (8th Cir. 1998); Hulme v. Barrett, 449 N.W.2d 629, 633 (Iowa 1989) ( Hulme). If a new claim is "reasonably related to the pending charges where administrative remedies had been exhausted," a plaintiff is not required to file a second charge. Id. (citation omitted). The administrative complaint is "construed liberally `in order not to frustrate the remedial purposes of Title VII.'" Nichols, 154 F.3d at 886-87; see also Hulme, 449 N.W.2d at 633 (stating that "[t]o force a plaintiff to file a new administrative charge with each continuing incident of discrimination would create needless procedural barriers").
Plagmann's retaliation claim was reasonably related to his charge of gender discrimination. His second charge stated,
On 4 November 1999 I filed a complaint of discrimination against Square D on the basis of sex after the company suspended me for an offense I did not commit, while a female coworker was only reprimanded for a far more serious offense.
Since filing that complaint, I have been retaliated against, including threats of termination without cause and suspension for attending the court hearing on 5 December 2000 for the original discrimination suit. . . . I believe that Square D is discriminating against me in retaliation for my filing a previous civil rights complaint.
The alleged retaliation occurred after the original charge was filed and made reference to the content of the original charge of gender discrimination. See Lynch v. City of Des Moines, 454 N.W.2d 827, 832-33 (Iowa 1990) (finding incidents of retaliation occurring after administrative complaint were reasonably related to other claims); Reiss v. ICI Seeds, Inc., 548 N.W.2d 170, 174 (Iowa Ct.App. 1996) (finding sex discrimination claim was reasonably related to charge filed with commission claiming complainant was discharged in retaliation for filing sexual harassment claim). Accordingly, we proceed to the merits.
B. Merits
To establish a prima facie case of retaliation under Title VII and the Iowa Civil Rights Act, a plaintiff must prove the following elements: (1) the plaintiff engaged in a protected activity, (2) the employer took adverse employment action against the plaintiff, and (3) there was a causal connection between the protected activity and the adverse employment action. Estate of Harris v. Papa John's Pizza, 679 N.W.2d 673, 678 (Iowa 2004). Once the plaintiff establishes a prima facie case, the burden shifts to the employer to rebut a presumption of retaliation. Id. (citing Cross v. Cleaver, 142 F.3d 1059, 1071-72 (8th Cir. 1998)). The first two elements are not in dispute. The parties dispute only whether there was a causal connection between Plagmann's filing of the charge and his suspension.
The causation standard is high. Hulme v. Barrett, 480 N.W.2d 40, 42 (Iowa 1992) ( Hulme II). "[T]he mere fact that an adverse employment decision occurs after a charge of discrimination is not, standing alone, sufficient to support a finding that the adverse employment decision was in retaliation to the discrimination claim." Id. at 43. The filing of a discrimination claim must be a substantial or determinative factor triggering the adverse employment action. Hulme II, 480 N.W.2d at 43; Teachout v. Forest City Cmty. Sch. Dist., 584 N.W.2d 296, 301 (Iowa 1998). "A factor is determinative if it is the reason that `tips the scales decisively one way or the other,' even if it is not the predominate reason behind the employer's decision." Teachout, 584 N.W.2d at302.
Plagmann did not satisfy this standard. Plagmann's suspension for excessive absenteeism was based on company policy requiring the imposition of progressive discipline once an employee exceeded forty hours of unexcused absences within a rolling one-year period.
Plagmann filed his discrimination charge on November 4, 1999. On May 16, 2000, Plagmann received a memo informing him that he had accumulated approximately 54 hours of absences. At the end of November 2000, Plagmann was notified that he had accumulated 58.42 hours of unexcused absences during the preceding, rolling one-year period. On December 5, 2000, Plagmann attended a court hearing related to this suit, which began at 10:00 a.m. and ended approximately one hour later. With the knowledge that he was only 6.58 hours away from suspension for excessive absenteeism, Plagmann did not report to work for his shift beginning at 7:00 a.m. and did not report for the remainder of his shift ending at 3:00 p.m. On December 12, 2000, Plagmann received a warning stating he had accumulated 58.42 hours of absences. Plagmann's absence on December 5 was recorded as unexcused and, by the end of December, he had accumulated 66.42 hours of absenteeism. He was suspended for exceeding the maximum allowed absences.
Plagmann offered no evidence that Square D Company departed from its normal policy governing absences. He was placed on notice that his absences were dangerously close to exceeding the allowable number, yet proceeded to take the entire day of the court hearing off without first contacting Square D Company to determine whether the absence would be deemed unexcused. In contrast, others appearing at the hearing returned to work. The protections afforded by anti-retaliation laws are not intended to provide a harbor for poor work performance. Hulme II, 480 N.W.2d at 43. We conclude the district court did not err in ruling against Plagmann on his retaliation claim.
IV. Disposition
We have considered and rejected all arguments not discussed in this opinion. We affirm the decision of the district court.