Opinion
No. 2-078 / 01-0765.
Filed August 14, 2002.
Appeal from the Iowa District Court for Monroe County, RICHARD J. VOGEL, Judge.
Plaintiff appeals the district court's grant of summary judgment to defendants on her claims under the Iowa Civil Rights Act and the Family and Medical Leave Act. REVERSED AND REMANDED.
Rodney Powell of the Powell Law Firm, P.C., Norwalk, for appellant.
Lloyd Keith of the Keith Law Firm, P.C., Ottumwa, for appellee.
Heard by SACKETT, C.J., and HUITINK and HECHT, JJ.
Cindy Ritz appeals from the district court's summary judgment ruling dismissing her claims under the Iowa Civil Rights Act, Iowa Code section 216 et seq. (1995) and the Family Medical Leave Act, 29 U.S.C. § 2601 et seq. We reverse and remand.
I. Background Facts and Proceedings .
Ritz was formerly employed as a nurse administrator by the Wapello County Board of Health. The Board of Health was established by the Wapello County Board of Supervisors as provided by Iowa Code sections 137.1, et seq., otherwise known as the "Local Health Act."
Ritz began her employment with the Board of Health on September 20, 1990. As a result of injuries sustained in an automobile accident on August 25, 1995, Ritz took an unpaid leave of absence until November 13, 1995, when she returned to fulltime employment. Thereafter, Ritz continued to take intermittent medical leave resulting in a ten-percent reduction in her salary.
The Board of Health eliminated Ritz's position on February 5, 1996. Her administrative duties were assumed by Visiting Nurse Service (VNS), an independent nonprofit corporation. Ritz's employment with the Board of Health effectively ended when she rejected an offer for continued employment as a staff nurse at a reduced pay rate.
After receiving an administrative release and right to sue letter, Ritz sued the Wapello County Board of Supervisors and the Board of Health and its chairperson, Madeline Schertz, claiming damages for violations of the ICRA and FMLA.
Ritz's theory of recovery under the ICRA was premised on allegations that the elimination of her position as nurse administrator and offer of lesser employment was in essence a scheme to terminate her employment based on illegal gender considerations. Ritz's FMLA claim was premised on the Board of Health's failure to restore her to the position of nurse administrator or its equivalent following her medical leaves of absence.
The district court granted the defendants' motion for summary judgment. The court determined Ritz was unable to establish a prima facie case of discrimination under the ICRA, because the undisputed record showed she was replaced by an entity and not a white male employee. The court also found that the FMLA was not applicable under the circumstances of this case.
II. Scope of Review
We review a district court's grant of summary judgment for errors of law. Meade v. Ries, 642 N.W.2d 237, 241 (Iowa 2002). Under Iowa Rule of Civil Procedure 1.981(3), summary judgment is appropriate only when the entire record shows there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. The burden of proof is on the party moving for summary judgment. McComas-Lacina Constr. Co. v. Able Constr., 641 N.W.2d 841, 843-44 (Iowa 2002).
On appeal, we determine whether a genuine issue of material fact exists and whether the district court correctly applied the law. Id. at 843. A fact is "material" only if it is outcome determinative. Sievers v. Iowa Mut. Ins. Co., 581 N.W.2d 633, 635 (Iowa 1998). We review the record in the light most favorable to the party opposing the motion for summary judgment. McComas-Lacina, 641 N.W.2d at 843.
Summary judgment should seldom be granted in the context of employment actions, because such actions are inherently fact based. Hindman v. Transkrit Corp., 145 F.3d 986, 990 (8th Cir. 1998). Discrimination cases often depend on inferences rather than on direct evidence, and summary judgment should not be granted unless the evidence could not support any reasonable inference for the non-movant. Michaelson v. Waitt Broad., Inc., 187 F. Supp.2d 1059, 1065-66 (N.D.Iowa 2002).
III. Iowa Civil Rights Act A. Overview
There are two methods a plaintiff may use to establish discrimination in employment under the ICRA, Iowa Code chapter 216 (1995). Vaughn v. Must, Inc., 542 N.W.2d 533, 538 (Iowa 1996). First, under the direct evidence or mixed-motive standard, a plaintiff must produce "direct evidence that an illegitimate criterion, such as gender, `played a motivating part in [the] employment decision.'" Cronquist v. City of Minneapolis, 237 F.3d 920, 924 (8th Cir. 2002) (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 258, 109 S.Ct. 1775, 1795, 104 L.Ed.2d 268, 293 (1989)). Direct evidence demonstrates a specific link between the challenged employment action and the alleged animus. Michaelson, 187 F. Supp.2d at 1068. Once direct evidence has been presented, the employer has the burden of establishing, by a preponderance of the evidence, that it would have made the same decision even in the absence of an improper motive. Vaughan, 542 N.W.2d at 538-39; Boelman v. Manson State Bank, 522 N.W.2d 73, 78 (Iowa 1994).
In civil rights cases under Iowa Code chapter 216, we are guided by federal law and federal cases. Hulme v. Barrett, 449 N.W.2d 629, 631 (Iowa 1989).
Direct evidence has been defined as conduct or statements by persons involved in the decision-making process, that might be viewed as directly reflecting an allegedly discriminatory attitude, which could allow a fact finder to infer the attitude was more likely than not a motivating factor in the employer's decision. Gagnon v. Sprint Corp., 284 N.W.2d 839, 848 (8th Cir. 2002).
The Price Waterhouse holding was modified by 42 U.S.C. § 2000e-5(g)(2), so that once a plaintiff meets the initial burden regarding direct evidence he or she is entitled to declaratory or injunctive relief and attorney's fees. Roberts v. Swift Co., 198 F. Supp.2d 1049, 1060 (S.D.Iowa 2002). Evidence a defendant would have made the same employment decision regardless of discriminatory intent cannot defeat a claim altogether, it can only defeat certain remedies such as damages or equitable relief. Id.
Discrimination is difficult to prove by direct evidence, and thus employment discrimination cases may follow a simplified proof in order to create an inference of discrimination and thereby establish a prima facie case. Roberts v. Swift Co., 198 F. Supp.2d 1049, 1065 (S.D.Iowa 2002). Under this second method, a plaintiff may follow the analytical framework found in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668, 877-79 (1973). Landals v. George A. Rolfes Co., 454 N.W.2d 891, 893 (Iowa 1990).
Under this framework, the plaintiff has the burden to establish a prima facie case of discrimination, as follows:
First, the plaintiff has the burden of establishing by a preponderance of the evidence a prima facie case of discrimination. Second, once such a prima facie case is established, the burden shifts to the defendant to "articulate some legitimate, nondiscriminatory reason for the employee's [discharge]." Third, if the defendant succeeds, the plaintiff must then prove by a preponderance of the evidence that the legitimate reason offered by the defendant was not the defendant's true reason but, rather, a pretext for discrimination.Hamilton v. First Baptist Elderly Housing Found., 436 N.W.2d 336, 338 (Iowa 1989) (citing McDonnell Douglas, 411 U.S. at 802-04, 93 S.Ct. at 1924-25, 36 L.Ed.2d at 677-79). This burden is one of production, not persuasion; it "can involve no credibility assessment." Reeves v. Sanderson Plumbing Co., 530 U.S. 133, 142, 120 S.Ct. 2097, 2106, 147 L.Ed.2d 105, 117 (2000) (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509, 113 S.Ct. 2742, 2748, 125 L.Ed.2d 407, 417 (1993)). The ultimate burden of persuasion remains with the plaintiff at all times. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207, 215 (1981).
In this appeal, Ritz's arguments are based upon the prima facie method of establishing discrimination found in McDonnell Douglas. She does not argue the direct evidence or mixed-motive standard of Price Waterhouse should apply, and therefore, we do not address her claims under this standard. See Cronquist, 237 F.3d at 925.
B. Prima Facie Case
To establish a prima facie case of gender discrimination under McDonnell Douglas, there must be a showing (1) the employee belongs to a protected class, (2) the employee was qualified to retain the job, (3) the employee suffered adverse employment action, and (4) it is more likely than not that the adverse employment action was based on an impermissible consideration, such as gender. Hamer v. Iowa Civil Rights Comm'n, 472 N.W.2d 259, 264 (Iowa 1991) (citing Reeb v. Marshall, 626 F.2d 43, 45 (8th Cir. 1980)). See also Channon v. United Parcel Serv., Inc., 629 N.W.2d 835, 861 (Iowa 2001). The burden of establishing a prima facie case of disparate treatment is not onerous. Burdine, 450 U.S. at 253, 101 S.Ct. at 1094, 67 L.Ed.2d at 215.
Defendants do not raise any challenges regarding the first two elements. Ritz is a woman, and thus, is considered a member of a protected class under section 216.6(1)(a). See Hy-Vee Food Stores, Inc. v. Iowa Civil Rights Comm'n, 453 N.W.2d 512, 521 (Iowa 1990). Defendants do not dispute that Ritz met applicable job qualifications.
Regarding the third element, Ritz claims she was constructively discharged from her employment when the position of nurse administrator was eliminated and she was offered a lower-paying position. Defendants allege Ritz voluntarily quit her position. We determine Ritz has produced evidence to show she suffered adverse employment action, as that term has been defined by our supreme court. See Channon, 629 N.W.2d at 862 (defining adverse employment action as "an action that detrimentally affects the terms, conditions, or privileges of employment."). See also Kerns v. Capital Graphics, Inc., 178 F.3d 1011, 1016 (8th Cir. 1999) (noting adverse employment action is that which produces a material employment disadvantage).
Adverse employment action includes "disciplinary demotion, termination, unjustified evaluations and reports, loss of normal work assignments, and extension of probationary period." Channon, 629 N.W.2d at 863 (citation omitted).
The district court stated that in order to meet the fourth element of a prima facie case, Ritz needed to establish that her prior position was filled by a white male. The court concluded that because Ritz was replaced by an organization, and not a white male, she failed to meet this element, and in turn failed to set forth a prima facie case of discrimination, making summary judgment for defendants appropriate. We conclude the district court used an incorrect standard for the fourth element.
A plaintiff is not required to show he or she was replaced by someone outside the protected class. O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 313, 116 S.Ct. 1307, 1310, 134 L.Ed.2d 433, 439 (1996); Sievers, 581 N.W.2d at 639. Evidence of the fourth element is satisfied if a plaintiff presents evidence adequate to create an inference that an employment decision was based on an illegal discriminatory criterion. O'Connor at 312, 116 S.Ct. at 1310, 134 L.Ed.2d at 439. See also Swierkiewicz v. Sorema, N.A., 534 U.S. 506, ___, 122 S.Ct. 992, 997, 152 L.Ed.2d 1, 9 (2002) (noting the precise requirements of a prima facie case can vary depending on the context); Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957, 967 (1978) ( McDonnell Douglas test was "never intended to be rigid, mechanized, or ritualistic.").
The Eighth Circuit Court of Appeals has stated, "it is entirely conceivable that a woman discharged and eventually replaced by another woman may be able to establish that she was the object of impermissible discrimination related to her gender." Walker v. St. Anthony's Med. Ctr., 881 F.2d 554, 558 (8th Cir. 1989). Additionally, a plaintiff "who was demoted and effectively replaced by many individuals adopting his duties may still be able to establish that he was the object of impermissible discrimination. . . ." Hindman, 145 F.3d at 992. Thus, the identity of a plaintiff's replacement is a relevant consideration, but not a determinative factor to the "ultimate inquiry of whether she was the victim of discrimination." Walker, 881 F.2d at 558.
Walker has been cited with approval in other circuits. See, e.g., Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 354 (3rd Cir. 1999); Jackson v. Richards Med. Co., 961 F.2d 575, 587 n. 12 (6th Cir. 1992); Cumpiano v. Banco Santander Puerto Rico, 902 F.2d 148, 155 (1st Cir. 1990).
We conclude Ritz was not required to show she was replaced by a white male in order to establish a prima facie case of discrimination. See Adams v. West Publ'g Co., 812 F. Supp. 925, 932 (D.Minn. 1993) (A plaintiff "does not automatically fail to raise a prima facie case of sex discrimination because she proffers no evidence that she was replaced by a male."). In regard to the fourth element necessary to establish a prima facie case, we consider whether Ritz has established that a prohibited factor played a determinative role in the employer's decision. See Hindman, 145 F.3d at 992; Walker, 881 F.2d at 558.
Ritz presented evidence to show members of the Board and the Supervisors stated they wanted to replace her with a man, a man could do a better job, and Ritz was overpaid for a woman. Based on these alleged discriminatory statements, Ritz presented evidence which would allow a fact finder to determine it was more likely than not she was the subject of adverse employment action based on the impermissible consideration of gender. We conclude the district court erred in finding Ritz failed to present sufficient evidence on the fourth element of a prima facie case of discrimination.
C. Summary Judgment
Once a prima facie case is established, a presumption arises that the employer discriminated against the employee. Hy-Vee Food Stores, 453 N.W.2d at 516. In order to survive a motion for summary judgment, however, a plaintiff's evidence must go beyond the establishment of a prima facie case. Michaelson, 187 F. Supp.2d at 1066. The burden-shifting framework of McDonnell Douglas should be applied to determine if summary judgment is appropriate. Hindman, 145 F.3d at 990. The ultimate issue is whether the evidence is sufficient to create a genuine issue of fact as to whether the employer intentionally discriminated against the plaintiff. Madel v. FCI Mktg., Inc., 116 F.3d 1247, 1251 (8th Cir. 1997).
The district court did not address the second and third steps of the McDonnell Douglas test due to its finding Ritz had failed to establish a prima facie case. We determine the district court's grant of summary judgment on the ICRA issue should be reversed, and the case remanded for further proceedings in accordance with his opinion.
IV. Family and Medical Leave Act
The purpose of the FMLA is to help working men and women balance the conflicting demands of work and personal life. Caldwell v. Holland of Texas, Inc., 208 F.3d 671, 676 (8th Cir. 2000). "To help ease the growing tension between work and family, the FMLA establishes a right to unpaid family and medical leave for those employees covered under the Act." Hatchett v. Philander Smith College, 251 F.3d 670, 676 (8th Cir. 2001). The FMLA permits eligible employees to take up to twelve weeks of unpaid leave during a twelve-month period for family or medical reasons. 29 U.S.C. § 2612; Sievers, 581 N.W.2d at 636.
If the need for FMLA leave is not foreseeable, an employee should give notice to the employer as soon as practicable. Spangler v. Fed. Home Loan Bank, 278 F.3d 847, 852 (8th Cir. 2002). An employee need not invoke the FMLA by name in order to put the employer on notice the Act may be applicable. Thorson v. Gemini, Inc., 205 F.3d 370, 381 (8th Cir. 2000). "Under the FMLA, the employer's duties are triggered when the employee provides enough information to put the employer on notice that the employee may be in need of FMLA leave." Id. Ritz was off work from August to November 1995 due to injuries received in an automobile accident, and we determine there is sufficient evidence to create a factual question regarding whether she was entitled to FMLA leave.
Ritz asserts she was still taking intermittent leave for medical appointments at the time of her discharge. The FMLA provides for "intermittent" leave to allow an employee to attend appointments with a health care provider for necessary treatment of a serious health condition. 29 U.S.C. § 2612(b); Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 159 (1st Cir. 1998). "[T]he FMLA protects an employee who must leave work, or reduce his or her work schedule, for medical reasons, as long as that employee can perform the job while at work." Hatchett, 251 F.3d at 677. We determine there is also a factual question regarding whether Ritz was taking intermittent FMLA leave at the time of her discharge.
Ritz's claim under the FMLA arises from 29 U.S.C. § 1614(a)(1), which provides:
[A]ny eligible employee who takes leave under section 2612 of this title for the intended purpose of the leave shall be entitled, on return from such leave —
(A)to be restored by the employer to the position of employment held by the employee when the leave commenced; or
(B)to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.
Thus, after the period of qualified leave expires, eligible employees are entitled to reinstatement. Snelling v. Clarian Health Partners, Inc., 184 F. Supp.2d 838, 845 (S.D.Ind. 2002).
Ritz contends defendants violated the FMLA by discharging her, instead of keeping her in the same or an equivalent position. She is alleging a violation of the prescriptive protections of the FMLA. See Hodgens, 144 F.3d at 159-60 (noting differences between prescriptive and proscriptive protections of FMLA). In cases involving prescriptive rights, the employer's subjective intent is not relevant. Id. at 159. "The issue is simply whether the employer provided its employee the entitlements set forth in the FMLA." Id.
The FMLA also provides a restored employee is not entitled to "any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave." 29 U.S.C. § 1614(a)(3)(B). This provision means
an employee who requests or is on FMLA leave has no greater protection against his or her employment being terminated for reasons not related to his or her FMLA request or leave than he or she did before submitting the request.McBride v. Citgo Petroleum Corp., 281 F.3d 1099, 1108 (10th Cir. 2002).
In other words, the FMLA only applies when an employee is not restored to his or her former employment for reasons relating to the taking of FMLA leave. Id.; Rice v. Sunrise Express, Inc., 209 F.3d 1008, 1018 (7th Cir. 2000). If an employee would have been terminated for poor performance regardless of whether or not he or she took FMLA leave, then the employer did not violate the act. Hubbard v. Blue Cross Blue Shield Ass'n, 1 F. Supp.2d 867, 875 (N.D.Ill. 1998). The employee has the burden to show a violation of the FMLA. Kohls v. Beverly Enter. Wisconsin, Inc., 259 F.3d 799, 806 (7th Cir. 2001).
The district court concluded, "There is nothing other than plaintiff's pleading that her termination had anything whatsoever to do with the Family and Medical Leave Act." As we determined above, there was a factual question regarding whether Ritz was entitled to the protections of the FMLA at the time of her discharge, and whether defendants violated the FMLA by not reinstating her to her prior position. For these reasons, we determine the district court improperly granted summary judgment to defendants on Ritz's FMLA claim.
We reverse the grant of summary judgment to defendants on the ICRA and FMLA claims and remand for further proceedings in accordance with this opinion.
REVERSED AND REMANDED.