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McGrane v. Proffitt's Inc.

United States District Court, N.D. Iowa, Cedar Rapids Division
Dec 26, 2000
C 97-221-MJM (N.D. Iowa Dec. 26, 2000)

Opinion

C 97-221-MJM

December 26, 2000


OPINION and ORDER


Plaintiff, Wilma McGrane ("McGrane"), filed the present suit against Defendants, Proffitt's Inc., d/b/a Younkers ("Defendant") and Leslie Volz ("Volz"), alleging: (1) discriminatory discharge pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e ("Title VII"), the Age Discrimination in Employment Act 29 U.S.C. § 621 et seq. ("ADEA"), and Chapter 216 of the Iowa Code ("ICRA"); (2) Defamation; and (3) Intentional Infliction of Emotional Distress. (Doc. No. 1). Pending before this Court is Defendant's motion for summary judgment as to all McGrane's claims. (Doc. No. 31). For the reasons stated herein, Defendant's motion is granted in part and denied in part.

STANDARD FOR SUMMARY JUDGMENT

"Under Rule 56(c), summary judgment is proper `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.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) (quoting Fed.R.Civ.Pro. 56); see also Krentz v. Robertson Fire Prot. Dis., 228 F.3d 897, 902 (8th Cir. 2000).

A court considering a motion for summary judgment must view all the facts in the light most favorable to the nonmoving party, and give the nonmoving party the benefit of all reasonable inferences that can be drawn from those facts. See Matshusita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); see also Rabushka, ex rel. U.S. v. Crane Co., 122 F.3d 559, 562 (8th Cir. 1997), cert denied, 523 U.S. 1040 (1998). A court must not, however, "weigh the evidence, make credibility determinations, or attempt to determine the truth of the matter" when evaluating a motion for summary judgment. Quick v. Donaldson Co., 90 F.3d 1372, 1376-77 (8th Cir. 1996) (citing Anderson v. Liberty Lobby Inc., 477 U.S. 242, 256 (1986)). Instead, a court should simply determine whether there are genuine issues of material fact for trial. See id.; see also Johnson v. Enron Corp., 906 F.2d 1234, 1237 (8th Cir. 1990). "An issue of material fact is genuine if it has a real basis in the record." Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir. 1992) (citing Matsushita, 475 U.S. at 586-87). As to whether a factual dispute is "material," the Supreme Court has explained, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248; see also Beyerbach v. Sears, 49 F.3d 1324, 1326 (8th Cir. 1995); Hartnagel, 953 F.2d at 394.

When bringing a motion for summary judgment, "[p]rocedurally, the movant has the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record which show a lack of a genuine issue." Hartnagel, 953 F.2d at 394, (citing Celotex, 477 U.S. at 323). Once the moving party has carried its burden under Rule 56(c), the nonmoving party must do more than simply show there is "some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586; see also Herring v. Canada Life Ins. Co., 207 F.3d 1026, 1029 (8th Cir. 2000). It must go beyond the pleadings, and by affidavits, or by the "depositions, answers to interrogatories, and admissions on file," designate "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e)

With these standards in mind, the Court remains cognizant "that summary judgment is a drastic remedy and must be exercised with extreme care to prevent taking genuine issues of fact away from juries." Wabun-Inini v. Sessions, 900 F.2d 1234, 1238 (8th Cir. 1990). Moreover, discrimination cases, such as this one, "`often depend on inferences rather than on direct evidence,' [thus,] summary judgment should not be granted unless the evidence could not support any reasonable inference for the nonmovant." Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1111 (8th Cir. 1995) (quoting Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir. 1994)).

The Court will now recite the facts of the present case in the light most favorable to the nonmoving party, McGrane, and drawing all reasonable inferences in her favor.

FACTS McGrane's Employment History at Younkers

Wilma McGrane was first employed by Younkers in October of 1974 as a part-time salesperson. (Def. Ex. 1; McGrane Dep. 16-18). She continued work at Younkers until March of 1976. (McGrane Dep. 17-19). In 1977, McGrane returned to work at Younkers for five weeks as a holiday gift-wrapper. (McGrane Dep. 19-21). In 1979, she again returned to Younkers as a holiday gift-wrapper and then stayed on as a part-time salesperson in the men's department beginning February 1, 1980. (Pl. Ex. B). As a part-time salesperson she earned $3.20 an hour. (Pl. Ex. B). In 1986, McGrane began working as a full-time salesperson and was compensated on a commission basis. (McGrane Dep. 24-25; Pl. Ex. C).

The basic function of a salesperson, as described by Younkers, is "[t]o provide customers with the highest level of service. Emphasis is placed on selling, customer satisfaction and sales support responsibilities." (Def. Ex. 3 and 43). Those who managed McGrane explain that "she had excellent selling skills, . . . very good product knowledge" and had "good productivity." (Duke Dep. 9; Golinvaux Dep. 40-44). As a salesperson, McGrane was subject to periodic performance reviews. From 1988 to 1995, McGrane consistently received performance ratings of "outstanding" or "above average." (Def. Ex. 46-60). In January of 1994, McGrane was noted as having the "best customer service skills in the store." (Def. Ex. 56). She was credited with more than $315,000 in annual sales for 1994, $300,000 in 1995, and $332,000 in 1996. (Def. Ex. 41, 56 and 61). McGrane was awarded designation to Younkers' "Hall of Fame" status six times. (Pl. Ex. D). Additionally, McGrane was nominated one of the company's "Good Will Ambassadors" in the third quarter of 1996. (Pl. Ex. D). McGrane also received many unsolicited accolades from her customers. (Pl. Ex. E). However, in her last performance review dated April of 1996, Leslie Volz, McGrane's immediate supervisor, gave McGrane an overall rating of "Needs Improvement" although she sold over $332,000 of merchandise, the most she had ever sold.

Store Management

In December of 1994, Renee Golinvaux, a 29 year old woman, was named store manager at Younkers. (Golinvaux Dep. 6). In the spring of 1995, Golinvaux named Leslie Volz, a 23 year old woman, to act as the men's department manager, and McGrane's immediate supervisor. (Golinvaux Dep. 28).

Tammy Perrott, a former member of Younkers' senior management, remembers Volz making the following comment about McGrane prior to Volz's promotion to men's department manager: "If this were my department, Wilma McGrane would be out." (Perrott Aff. ¶ 2). After Volz's promotion, Perrott also remembers Volz making "comments about not liking Wilma and not wanting her in her department." (Perrott Aff. ¶ 2). From Perrott's observation, Volz had a confrontational personality. (Perrott Aff. ¶ 5).

While the men's department manager, Volz posted the following notice to those in her department:

Dear Team:

........

Please start working as a team take pride in the area. KEEP IT CLEAN. NO HALF-ASSERS ON THIS TEAM — They will go bye-bye!

Thanks, Leslie

(Def. Ex. 67 (emphasis in the original)).

McGrane's Attendance and Corresponding Disciplinary Action

Defendant maintains that between the years 1994 and 1996, McGrane's personnel file reflects that she failed to report to work at her scheduled time on more than 20 occasions. (Def. Ex. 5-35). Specifically, McGrane's personnel file reflects that she was 30 minutes to two hours late on 11 of those occasions. (McGrane Dep. 58-62, Def. Ex. 5, 1/11/94 2hrs; McGrane Dep. 67-68, Def. Ex. 10, 12/2/94 1hr; McGrane Dep. 9, Def. Ex. 9, 12/94 3hrs; McGrane Dep. 77-79, Def. Ex. 13-14, 2/7/95 45mins.; McGrane Dep. 83, Def. Ex. 16, 6/7/95 1hr; McGrane Dep. 86-97, Def. Ex. 18-19, 6/22/95 2hrs; McGrane Dep. 100-01, Def. Ex. 23, 12/20/95 1hr; McGrane Dep. 102-03, Def. Ex. 24, 1/27/96 1hr; McGrane Dep. 109, Def. Ex. 27, 7/11/96 30mins.; McGrane 117-21, Def. Ex. 33, 9/17/96 2hrs; McGrane Dep. 122-32, Def. Ex. 34-35, 9/22/96 3hrs.). Defendant also contends that McGrane's file demonstrates she was occasionally late for "show-time mornings" — those mornings employees are scheduled to come in prior to the store opening to stock merchandise that arrived the previous day.

McGrane's personnel file indicates that she received a verbal warning for her tardiness on 12 occasions, (Def. Ex. 5, 6, 7, 9, 10, 12, 16, 18, 21, 22, 29, and 34) and a written warning on 2 occasions. (Def. Ex. 13 and 15). All her warnings, both oral and written, occurred prior to March of 1996, apart from her final warning of September 1996, which occurred immediately prior to her termination. (Def. Ex. 34). On December 15, 1994, her file reflects she was given a verbal warning and advised that her next three tardies would warrant written warnings and a fourth would result in termination. (Def. Ex. 9). On February 7, 1995, McGrane's file reflects she received a written warning, entitled "counseling/disciplinary review" and was also told that her next failure to arrive on time would result in another written warning and possibly termination. (Def. Ex. 14). These disciplinary forms include a place for the employee's signature indicating the employee is aware that a disciplinary form was placed in their file. (Def. Ex. 6, 9, 14 and 15). McGrane's signature is not on any of the disciplinary forms in her file that relate to her tardiness. (Def. Ex. 6, 9, 14 and 15). Two of the forms however, do indicate McGrane was asked to sign but refused. (Def. Ex. 14 and 15).

McGrane makes the following assertions about her tardiness:

1. In late 1990, McGrane was 75 minutes late because she was helping her 72-year-old neighbor who suffered from a stroke. (Pl. Ex. H). This incident is not included in Defendant's tally of twenty tardies between 1994 and 1996.

2. On January 20, 1995, McGrane called in ill. Golinvaux says illness would not have played a role in the decision to terminate. (Golinvaux Dep. 95). Again, this incident is not reflected in McGrane's personnel file, and is not included in the tally of 20 tardies between the years 1994 and 1996.

3. On April 26, 1995, McGrane attended her son's surgery. (Pl. Ex. G). This incident is not reflected in McGrane's personnel file and is not included in the above tally.

4. In November of 1995, McGrane's husband was diagnosed with terminal cancer. Both Golinvaux and Volz were aware of this fact. (Golinvaux Dep. 50-51; Volz Dep. 19). Volz's record keeping of McGrane's attendance appeared to heighten during this time. (Def. Ex. 22-25).

5. Defendant alleges McGrane arrived 10 minutes late to work on July 21, 1996. (Def. Ex. 31). McGrane maintains the store was not open at the time Defendant alleges she was to arrive for work. (McGrane Aff. ¶ 8).

6. On September 17, 1996, Defendant contends McGrane was scheduled to work at 1:00pm and she did not arrive until 3:00pm. (Def. Ex. 33). McGrane maintains there was a change in the schedule while she was on vacation and she was not informed of that change in the interim. (McGrane Dep. 117-121).

With regards to show-time mornings, McGrane contends she was unable to arrive on time for show-time on Wednesdays because she had to take her daughter to school. (McGrane Dep. 107-109). McGrane maintains she made Volz aware of this conflict but Volz continued to schedule her on Wednesdays. (McGrane Dep. 98-100). Tom Raley, McGrane's co-worker at the time, testified that it appeared that Volz purposely scheduled McGrane to work then, even though Volz knew it was difficult for her to get there on time. (Raley Aff. ¶ 4). To address the show-time issue, Golinvaux and McGrane met in March of 1996 and agreed that beginning in June of 1996, after McGrane's daughter graduated from high school, "Wilma will be available to work show-time mornings — arriving at the scheduled time." (McGrane Dep. 107-09; Def. Ex. 26). At the time of the agreement, McGrane did not view it as a disciplinary measure. (McGrane Dep. 108-09). Rather, she believed it to be a recognition that, in the previous months, some consideration should have been given to McGrane's family conflict. (McGrane Dep. 108-09). After March 1996, there is no record of McGrane failing to arrive on time for a show-time morning.

McGrane logged nearly 2000 hours annually. (Def. Ex. 46-61). McGrane was known to work through lunch, stay late, and deliver customers their clothing on her days off. (Def. Ex. 46-61; Pl. Ex. E; Perrott Aff. ¶ 1). McGrane contends her attendance habits changed little throughout her employment at Younkers. McGrane's performance reviews as early as 1990 and continuing through 1995 reflect she did not arrive to work on time, receiving a "marginal" rating in the category of adherence to schedules. (Def. Ex. 46-48, 51, 54, 56-59). McGrane's attendance problems were never serious enough to bring her overall rating as a salesperson below an "above average" rating. (Def. Ex. 46-61).

Other Employee Attendance Records

Donald Haugen, an employee in the men's department, repeatedly left work early without permission. (Raley Aff. ¶ 5). His personnel file reflects one note specifying he should adhere to the schedule. (Pl. Ex. J). On one occasion Haugen had another employee clock him out after his departure, allowing him to be paid for time he did not work. (Pl. Ex. J). He was neither terminated nor disciplined for those infractions, but was counseled that signing out without management's approval could result in termination. (Pl. Ex J).

In June of 1995, both Haugen and McGrane were present at a meeting with Golinvaux regarding an attendance issue. (McGrane Aff. ¶ 6). McGrane had called into work to ask Haugen whether it was busy. (McGrane Dep. 87; Def. Ex. 18). When he reported it was not, McGrane said she would be in at 3:00pm instead of her scheduled time of 1:00pm. (McGrane Dep. 87; Def. Ex. 18). McGrane testified that this type of thing was done regularly. (McGrane Dep. 87). She then attempted to reach Volz or Golinvaux to confer with them about her arrival time. (McGrane Dep. 88; Def. Ex. 18). When she was unable to reach either of them, she left a message for Volz with Pat Beck, the sales manager, that she planned to arrive at 3:00pm. (McGrane Dep. 88; Def. Ex. 18). Upon receiving the message, Volz attempted to contact McGrane to tell her to come in immediately, but could not reach her. (McGrane Dep. 89; Def. Ex. 18). McGrane came in at 3:00pm. (Def. Ex. 18). McGrane received a note in her file for this action. (Def. Ex. 18; McGrane Aff. ¶ 6). Although Haugen was counseled for his role in the unauthorized change of the schedule, no such documentation was placed in Haugen's file. (McGrane Aff. ¶ 6).

Larry Blum, another employee from the men's department, allegedly called the store on multiple occasions to report that he would be late. (McGrane Aff. ¶ 11). No documents regarding his repeated tardies are found in Blum's file. (McGrane Aff. ¶ 11).

Alleged Incidents of Insubordination

Along with documentation in McGrane's personnel file about McGrane's attendance, there was also documentation of purported insubordination. (Def. Ex. 18-19, 34-35). Specifically, Volz placed a note in McGrane's personnel file detailing an encounter with McGrane after her meeting with Golinvaux, Volz and Haugen over their unauthorized change in the schedule. Volz's note reveals McGrane became very agitated, used obscenities and made other derogatory comments. (Def. Ex. 18-19). Another note in McGrane's file refers to an incident on September 22, 1996 when Volz rejected a replacement McGrane had chosen for one of her shifts. (Def. Ex. 34-35). McGrane became agitated with Volz's decision that McGrane's replacement was inadequate. (Def. Ex. 34-35). McGrane denies these occurrences took place and notes that neither instance resulted in disciplinary action. (McGrane Dep. 127-29).

Firing Process

Prior to McGrane's termination, Volz documented McGrane's attendance record in a "red file" and this documentation was accumulated into a disciplinary review file. (McGrane Aff. ¶ 10; Volz Dep. 30-31). Volz did not share this red file of negative information with McGrane. (McGrane Aff. ¶ 10). In fact, after March 1996, McGrane was not given any warning, written or oral, concerning problems with her attendance. (McGrane Aff. ¶ 10). Volz then shared this disciplinary review file with Golinvaux. (McGrane Aff. ¶ 10). Golinvaux forwarded the information on to Karla Severson, Younkers' Corporate Human Resource Director, who in turn shared the documents with Jerry Kirby, Younkers' in house counsel. (Severson Dep. 46-49). Severson and Jerry Kirby reviewed McGrane's file as it related to her tardiness and insubordination. (Severson Dep. 47-49). Severson did not review her performance record. (Severson Dep. 47-49).

The written and oral warnings were given prior to March of 1996, and the written warnings came from management personnel other than Volz and Golinvaux. (Def. Ex. 14 and 15).

Severson thought employees should be kept aware of the management's expectations and the possible consequences for an employee's failure to meet those expectations. (Severson Dep. 44-46). It was Severson's understanding that Golinvaux had in fact counseled McGrane about her attendance problems and the possibility of termination during the months preceding her termination. (Severson Dep. 44-46). However, McGrane had received no such counseling from management during the months prior to her dismissal — March 1996 until her termination. (Golinvaux Dep. 101-02). Golinvaux testified that after June of 1996 she never expressed to McGrane her concerns about McGrane's attendance. (Golinvaux Dep. 101-102). Volz testified that she never gave McGrane a written warning nor did she conduct a counseling or disciplinary interview with her concerning changing the schedule, absenteeism, or tardiness. (Volz Dep. 30).

Based on information from Golinvaux and the documentation about McGrane's tardiness from Volz, Younkers management approved the termination of McGrane on or about October 10, 1996. (Severson Dep. 50). On October 10, 1996, McGrane was notified of her termination by Golinvaux. (McGrane Dep. 136). Golinvaux informed McGrane that she was being terminated for "failure to keep a schedule." (McGrane Dep. 140). It was at that point McGrane requested to see her file for the first time in her tenure at Younkers. (McGrane Dep. 139).

After viewing her file for the first time, McGrane was escorted from the store by James Patrillo, former Loss Prevention Manager. (McGrane Aff. ¶ 3). It was common knowledge that if an employee was escorted from the store it meant they had been accused of theft. (Raley Aff. ¶ 6). Tammy Perrott, also a former Loss Prevention Manager at Younkers, testified

Employees are only escorted from the Younkers store for situations involving theft or other severe violations of company policy. This is common knowledge among Younker employees.

Perrott Aff. ¶ 4.

McGrane was escorted from the store sometime between 4:00 and 5:00 p.m. by way of a public entrance, in plain view of many employees. (McGrane Aff. ¶ 3). McGrane was later contacted by a fellow employee who inquired whether she had been terminated because of theft. (McGrane Aff. ¶ 3). McGrane was 53 years old at the time of her termination. (McGrane Aff. ¶ 1).

DISCUSSION Claims Against Volz

As an initial matter, McGrane has requested this Court dismiss her claims against Volz. (Pl. Br. at 8 n. 1). Accordingly, McGrane's discrimination claims against Volz are dismissed.

Discrimination Claims

McGrane claims discrimination pursuant to three statutes — the ADEA alleging age discrimination, Title VII alleging "sex-plus-age" discrimination and the ICRA alleging the same theories as those under the federal statutes.

The ADEA prohibits an employer from discriminating against an individual forty years of age and older with respect to terms, conditions, or privileges of employment because of that individual's age. See 29 U.S.C. § 623(a), 631; see also Bialas v. Greyhound Lines, Inc., 59 F.3d 759, 762-63 (8th Cir. 1995); Bashara v. Black Hills Corp., 26 F.3d 820, 823 (8th Cir. 1994).

Title VII prohibits discrimination with respect to terms, conditions, or privileges of employment based on sex, as well as other immutable characteristics. See 42 U.S.C. § 2000e-2. The "sex-plus" theory of discrimination, pursued by Plaintiff in this case, was first recognized by the Supreme Court as a viable theory under Title VII in Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) (upholding a discrimination claim challenging a policy not to accept women with pre-school aged children). The Seventh Circuit later explained and reaffirmed this theory in Sprogis v. United Airlines, 444 F.2d 1194, 1194-1198 (7th Cir.), cert denied, 404 U.S. 991 (1971) (finding challenge to policy that women be unmarried in order to apply for position was actionable under Title VII), and numerous other courts have since followed suit. See Jefferies v. Harris Cty. Community Action Ass'n, 615 F.2d 1025, 1032 (5th Cir. 1980) (recognizing sex-plus race); Hall v. Missouri Highway and Transportation Commission, 995 F. Supp. 1001, 1005 (E.D. Mo. 1998) (recognizing sex-plus age); Hicks v. Gates Rubber Co., 833 F.2d 1406 (10th Cir. 1987) (recognizing black women as protected subclass under Title VII); Graham v. Bendix Corp., 585 F. Supp. 1036, 1047 (N.D. Ind. 1984) (same). "What has emerged from Phillips and its progeny is a rule which allows plaintiffs to bring a Title VII claim for sex discrimination if they can demonstrate that the defendant discriminated against a subclass of women (or men) based on either (1) an immutable characteristic or (2) the exercise of a fundamental right." Arnett v. Aspin, 846 F. Supp. 1234, 1239 (E.D. Pa. 1994). Although the theory of sex-plus age discrimination has yet to be put squarely before the Eighth Circuit, there is nothing in the Circuit's precedent that would lead this Court to believe such a claim is not viable under Title VII. Because McGrane's sex-plus age claim falls within the purview of Martin Marietta Corp. and its progeny, this Court will analyze it as it would any other Title VII claim.

Finally, the ICRA also prohibits discrimination based on age and sex, see I.C.A. § 216.6, and its legal framework is interpreted to mirror the companion federal discrimination statutes. See Fisher v. Pharmacia UpJohn, 225 F.3d 915, 919 n. 2 (8th Cir. 2000) (citing Montgomery v. John Deere Co., 169 F.3d 556, 558 n. 3 (8th Cir. 1999)); Engstrand v. Pioneer Hi-Bred Int'l, 946 F. Supp. 1390, 1397 n. 4 (N.D. Iowa 1996) (finding "Iowa courts have held that state's civil rights statutes including, Chapter 216, are patterned after Title VII") (internal quotations omitted); see also Board of Supervisors of Buchanon County v. Iowa Civil Rights Comm'n, 584 N.W.2d 252, 256 (Iowa 1998); Hy-Vee Food Stores, Inc. v. Iowa Civil Rights Comm'n, 453 N.W.2d 512, 516 (Iowa 1990). Therefore, this Court's analysis of McGrane's ADEA and Title VII claims applies equally to McGrane's claims of discrimination pursuant to ICRA.

Under either theory of discrimination, age or sex-plus age, McGrane bears the burden of proving intentional discrimination. See Patterson v. McClean Credit Union, 491 U.S. 164, 186 (1989). Absent direct evidence of discrimination, a plaintiff may do this through the familiar burden shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). This approach has been described many times, see St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-12 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-56 (1981); see also Kneibert v. Thomson Newspapers, Michigan, Inc., 129 F.3d 444, 451-52 (8th Cir. 1998), most recently by the Supreme Court in Reeves v. Sanderson Plumbing Prods., Inc., 120 S.Ct. 2097 (2000). Under this three-stage framework, the plaintiff must first establish a prima facie case. See Reeves, 120 S.Ct. at 2105 The prima facie case shifts the burden to the defendant to "produc[e] evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason." Id. (quoting Burdine, 450 U.S. at 254). "This burden is one of production, not persuasion; it `can involve no credibility assessment.'" Id. (quoting St. Mary's Honor Center, 509 U.S. at 506). If the defendant meets this production burden, "`the McDonnell Douglas framework — with its presumptions and burdens' — disappear, St. Mary's Honor Center, supra, at 510, 113 S.Ct. 2742, and the sole remaining issue [is] `discrimination vel non,' [ U.S. Postal Service Bd. of Governors v. Aikens,] 460 U.S. 711, 714 (1983).]" Reeves, 120 S.Ct. at 2106. The plaintiff is then afforded the opportunity to prove by the preponderance of the evidence that the legitimate reasons offered by the defendant are not true, but instead were pretext for discrimination. See Reeves, 120 S.Ct. at 2106. "[W]hen all legitimate reasons for [terminating an employee] have been eliminated as possible reasons for the employer's actions, it is more likely than not the employer, who we generally assume acts only with some reasons, based his decision on an impermissible consideration such as [age or sex-plus age]." Furnco Construction Corp. v. Waters, 438 U.S. 567, 577 (1978); see also Ryther v. KARE, 108 F.3d 832, 838, n. 4 (8th Cir. 1997) (quoting Visser v. Packer Engineering Assoc., 924 F.2d 655, 675 (7th Cir. 1991)) (finding "[a] pretext, in employment law, is a reason that the employer offers for the action claimed to be discriminatory and that the court disbelieves, allowing an inference that the employer is trying to conceal a discriminatory reason for his action.")). The Reeves Court clarified the plaintiff's burden with respect to a showing of pretext:

Because McGrane's claims of age and sex-plus age discrimination are premised largely on the same set of facts, the Court will analyze these claims concomitantly, specifying where necessary claim-specific facts or legal arguments.

the plaintiff may attempt to establish that [s]he was the victim of intentional discrimination `by showing that the employer's proffered explanation is unworthy of credence.' Burdine, supra, at 256. Moreover, although the presumption of discrimination `drops out of the picture' once the defendant meets its burden of production, St. Mary's Honor Center, supra, at 511, the trier of fact may still consider the evidence establishing the plaintiff's prima facie case `and inferences properly drawn therefrom . . . on the issue of whether the defendant's explanation is pretextual,' Burdine, supra, at 255, n. 10.

With that said, it is important to be clear that "`[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.'" Reeves, 120 S.Ct. at 2106, (quoting Burdine, 450 U.S. at 253).

Turning to the present case, in order to establish a prima facie case for age or sex-plus age discrimination McGrane must show that: (1) she is a member of a protected class; (2) she was qualified for the position; (3) she was discharged from or denied the position, or suffered an adverse employment consequence; and (4) that non-members of the protected class were treated more favorably. See McDonnell Douglas, 411 U.S. at 802; Hutson, 63 F.3d at 776; Arnett, 846 F. Supp. at 1241.

Defendant challenges elements two and four of McGrane's prima facie showing. Defendant maintains McGrane fails to establish element two because "she was not performing consistent with Younkers' expectations" of adhering to her work schedule. (Def. Br. at 12).

It is well established that the threshold of proof necessary to meet a prima facie case is minimal. See Watson v. Fortworth Bank and Trust, 487 U.S. 977, 985 (1988) (finding "[t]he burden of proving a prima facie case is "not onerous"); see also Young v. Warner-Jenkinson Co. Inc., 152 F.3d 1018, 1022 (8th Cir. 1998) (same); Hindman v. Transkirt Corp., 145 F.3d 986, 991 (8th Cir. 1998). In support of this minimal burden, McGrane offered uncontroverted evidence that she was a highly productive salesperson, responsible for over $300,000 in sales for three consecutive years. She has also offered evidence that her attendance record remained essentially unchanged throughout her employment at Younkers and her performance review did not drop below above average from 1988 to 1995 despite her tardies. In light of these alleged facts, twenty instances of tardiness over the course of two years, after a tenure of undisputed excellence at the store, is not enough to derail McGrane's showing of a prima facie case. See Fisher v. Pharmacia Upjohn, 225 F.3d 915, 920 (8th Cir. 2000) (finding "[i]n the context of sales, [the Eighth Circuit has] indicated that the selling of product is the primary responsibility of a salesperson and thus that sales volume is generally the principal indicator of a salesperson's performance."); see also Johnson v. Arkansas State Police, 10 F.3d 547, 551 (8th Cir. 1993) (cautioning against conflating prima facie case with ultimate issue of discrimination); Landon v. Northwest Airlines, Inc., 72 F.3d 620, 624 (8th Cir. 1995); see also Williams v. Ford Motor Co., 14 F.3d 1305, 1308 (8th Cir. 1994); Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994) (finding "[t]he requisite degree of proof necessary to establish a prima facie case for Title VII and ADEA claims on summary judgment is minimal and does not even need to rise to the level of a preponderance of the evidence.") (cited with approval in Fisher v. Vassar College, 114 F.3d 1332, 13340 (8th Cir. 1997) ( abrogated on other grounds Reeves, 120 S.Ct. 2097)).

For the first time in her career at Younkers McGrane did receive a rating of "Needs Improvement" in 1996. This rating came from Volz and came during a year when McGrane sold more than $332,000 of merchandise, more than she had ever sold in previous years when she was designated to the Hall of Fame. In fact, she also received this poor rating the same year she was nominated to be a Good Will Ambassador.

Defendant also challenges McGrane's ability to meet element four of her prima facie showing because McGrane was not replaced by a younger female or male; in fact she was not replaced at all. The Court is aware that proof of replacement by a person outside the protected class will satisfy the fourth element of one's prima facie case. See Davenport v. Riverview Gardens School District, 30 F.3d 940, 944 (8th Cir. 1994). However, "it is now well-settled that such proof is not required." Id. (citing Walker v. St. Anthony's Medical Center, 881 F.2d 554, 558 (8th Cir. 1989) (finding no such per se requirement has traditionally been imposed in Title VII cases and extending that reasoning to ADEA cases)). Rather, McGrane must demonstrate, in addition to the first three elements of a prima facie case, that her discharge occurred in "`circumstances which allow the court to infer unlawful discrimination.'" Id. (quoting Walker, 881 F.2d at 558); see also O'Connor v. Consolidated Coin, 517 U.S. 308, 312 (1996) (finding i.e., "the fact that one person in the protected class has lost out to another person in the protected class is thus irrelevant, so long as he has lost out because of his age"); Williams, 14 F.3d at 1308; Craik v. Minnesota State Univ. Bd., 731 F.2d 465, 469 (8th Cir. 1984). In addition to meeting the first three elements of her prima facie case, McGrane has offered evidence that similarly situated men were treated differently. Specifically she alleges that Haugen, an employee in the men's department, repeatedly left work early without permission and his personnel file reflects only one note about his failure to adhere to the schedule. Indeed, on one occasion Haugen had another employee clock him out after his departure, allowing him to be paid for time he did not work. Likewise, Blum, also an employee in the men's department, called the store on multiple occasions to report that he would be late. No documents regarding his repeated tardies are found in Blum's file. "The elements of a prima facie case [will] vary with the circumstances of the alleged discrimination," Jones v. Frank, 973 F.2d 673, 676 (8th Cir. 1992); see also McDonnell Douglas, 411 U.S. at 802 n. 13, and in light of the alleged facts in this case, McGrane has sufficiently met her minimal prima facie burden. See, e.g., Williams, 14 F.3d at 1308-09 (finding plaintiff satisfied first two elements of prima facie case because he is an African-American who qualified for but was denied reinstatement, and satisfied third element by showing other similarly situated employees outside his protected group were treated differently).

In the context of the ADEA, the Eighth Circuit, along with a majority of its sister circuits, has held that a plaintiff need only establish the first three elements to meet their prima facie burden. See Rinehart v. City of Independence, 35 F.3d 1263, 1266 (8th Cir. 1994) cert denied, 514 U.S. 1096 (1995); Kralman v. Illinois Dep't of Veterans' Affairs, 23 F.3d 150, 155 (7th Cir.) cert denied, 513 U.S. 948 (1994) (finding prima facie case of age discrimination does not require showing that replacement came from outside protected class — "[i]ndeed, it is considered `hornbook law' that the ADEA action can be based on discrimination between older and younger members of the protected class"); Lowe v. Commack Union Free School Dist., 886 F.2d 1364, 1374 (2d Cir. 1989) cert. denied, 494 U.S. 1026 (1990) (noting in dicta that plaintiff in ADEA suit not precluded from prevailing when replacement is younger but within protected class); Freeman v. Package Mach. Corp., 865 F.2d 1331, 1335 n. 2 (1st Cir. 1988) (finding replacement by younger person or one outside protected class "not an element of the plaintiff's prima facie case in an ADEA suit"); Maxfield v. Sinclair Int'l, 766 F.2d 788, 792 (3d Cir. 1985) cert. denied, 474 U.S. 1057 (1986) (holding to make prima facie case "replacement need not be younger than 40, the age at which ADEA protection begins"); and Douglas v. Anderson, 656 F.2d 528, 532-33 (9th Cir. 1981) (holding replacement need not be within protected class to establish prima facie case on ADEA claim).
In the context of a sex discrimination claim brought under Title VII, the Eighth Circuit has held that "it is entirely plausible that a woman discharged and replaced by another woman will be able to establish that she was the object of impermissible discrimination based on gender." Williams, 14 F.3d at 1308 (citing Walker, 881 F.2d at 558.) cont. . . .
. . . . cont.
In such a case, the gender of the employee who replaced the plaintiff pertains to the weight of the evidence as opposed to its legal sufficiency. See id.

McGrane's presentation of a prima facie case creates a legal presumption of unlawful discrimination. See St. Mary's Honor Ctr, 509 U.S. at 507; Burdine, 450 U.S. at 256; McDonnell Douglas Corp., 411 U.S. at 806. As explained earlier, the onus is now on Defendant to produce evidence of a legitimate, nondiscriminatory reason for McGrane's discharge in order to rebut that presumption. See Reeves, 120 S.Ct. at 2106; St. Mary's Honor Ctr, 509 U.S. at 510.

Defendant contends McGrane's termination was the result of twenty instances of tardiness in two years and her display of insubordination when approached by management about her attendance problems. McGrane's repeated instances of arriving late for work are contrary to Younkers' attendance requirements, Defendant argues, and justify its decision to terminate her employment.

With regards to Defendant's allegations of insubordination, McGrane notes that at the time her employment was terminated, the only reason given to her for the termination was her failure to adhere to the company's schedule. Although Defendant offers Volz's personal notes about McGrane's purported instances of insubordination — one note detailing the meeting in which Haugen and McGrane were admonished for changing the schedule without authorization and another note detailing the incident on September 22, 1996 when Volz took issue with McGrane's choice of a replacement — McGrane was neither counseled nor warned about her allegedly insubordinate behavior prior to her termination. Her performance reviews reflect she was an above average salesperson, with no problems of insubordination, prior to her review by Volz in April of 1996 who rated her as "Need[ing] Improvement." And finally, McGrane denies Defendant's contention that she became insubordinate with Volz and Golinvaux. McGrane suggests these allegations of insubordination are contrived for purposes of summary judgment and serve as evidence of pretext.

As to tardiness, McGrane does not challenge each and every one of Defendant's allegations about her failure to adhere to the company's schedule. Instead, she challenges the attendance policy as it was applied to her and contends these allegations are in fact pretext for Younkers' unlawful motive in seeking her termination — namely her age and her sex-plus age.

McGrane does challenge the recorded tardy of July 21, 1996, in which Volz maintains McGrane was ten minutes late to work. McGrane argues that in fact the store was closed at the time, and both Volz and Golinvaux are aware of that fact yet they continue to assert it as a part of a legitimate reason for seeking her termination.

First, McGrane argues that similarly situated male employees were treated differently under Younkers' attendance policy. For example, she alleges that Donald Haugen, a co-employee in the men's department, repeatedly left work early without permission and has only one note in his personnel file to that effect. She, on the other hand, has twenty notes in her personnel file concerning attendance infractions. Additionally, McGrane alleges that after the meeting with Haugen and McGrane regarding their unauthorized decision to change the schedule to allow McGrane to arrive two hours late, a note was placed in McGrane's file. And although Haugen was counseled for his role in the unauthorized alteration of the schedule, no such documentation was placed in Haugen's file. Likewise, McGrane contends Larry Blum, another employee from the men's department, called in on multiple occasions to report that he would be late. No documents regarding his repeated tardies are found in Blum's file.

Defendant argues in order for McGrane to make out a claim that she received different treatment than her male co-employees, she must show those employees were "similarly situated in all respects." Newton v. Cadwel Lab, 156 F.3d 880, 882 (8th Cir. 1998). Defendant contends McGrane's attendance problems are significantly more severe than those she alleges were committed by her male counterparts, and the employees could not be considered "similarly situated in all respects." However, "[t]o show that employees are similarly situated, a plaintiff need only establish that he or she was treated differently than other employees whose violations were of `comparable seriousness.'" Lynn v. Deaconess Med. Center-West, 160 F.3d 484, 488 (8th Cir. 1998) (finding nurse sleeping on duty similarly situated to nurse with performance problems) (citing Ricks v. Riverwood Int'l Corp., 38 F.3d 1016, 1019 (8th Cir. 1994)). McGrane's evidence reveals that male employees who allegedly took liberty with the company's scheduling on numerous occasions were not continually written up in the fashion she was. This is problematic since it was the accumulation of documentation concerning her attendance infractions which led to her termination. Although McGrane's attendance infractions vary in degree from that of her male counterparts, Haugen's attendance infractions are coupled with the incident in which he had a co-employee clock him out after his departure, allowing him to be paid for work he did not do. These alleged infractions are of comparable seriousness to generate a question of fact as to whether McGrane was treated differently than her male counterparts.

Additionally, McGrane alleges that Younker's management did not express its concerns with McGrane about her attendance in the months prior to her termination and this was contrary to the company's policy. McGrane did meet with Golinvaux in March of 1996 to discuss her difficulties with arriving on time to show-time mornings. McGrane did not view this as a disciplinary action, but rather management's recognition that the schedule, up until that point, did not appropriately accommodate McGrane's family obligations, namely her need to take her daughter to school. Indeed, Raley, McGrane's co-employee, testified that Volz was aware of McGrane's scheduling conflict on show-time mornings but continued to schedule her anyway. As a result of the March meeting, McGrane agreed to arrive on time to show-time mornings after her daughter graduated from high school in June of 1996. McGrane was not late to a show-time morning from the March meeting forward. And after the March meeting McGrane contends neither Golinvaux nor Volz ever approached her about their concerns with her attendance.

Defendant argues that the record shows McGrane was late six more times from March to September of 1996. At the outset, the most egregious of these last six violations, 9/17/96 and 9/22/96, MeGrane contests. As to the 17th of September, McGrane maintains Volz changed the schedule while she was out of town and did not notify her of the change. On the 22nd of September, McGrane found a replacement but Volz insisted she come in because Volz believed the replacement was not suitable. Putting aside the dispute about why McGrane was late, McGrane argues the point is Younkers' corporate management expects employees to be apprised of consequences stemming from the failure to meet store's work requirements — in this case, attendance requirements — and she was not. Indeed, McGrane argues, it was not until the day of her termination that she was made aware of the extensive documentation on her attendance which ultimately comprised her disciplinary review to corporate management.

McGrane maintains treatment is a product of Younkers' youthful store management, which includes Volz and Golinvaux, and their quest to oust her from the men's department. McGrane premises this theory on a statement made by Volz prior to her promotion to department manager, in which she allegedly said "If this were my department, Wilma McGrane would be out." In carrying out this campaign to get her fired, McGrane contends Volz would do such things as schedule her on showtime mornings when Volz was aware McGrane could not make it in on time, and then deride her for tardiness. Similarly, McGrane maintains Volz knowingly stepped up the note taking campaign when McGrane's husband became ill with cancer. McGrane maintains in doing so, Volz failed to inform McGrane of her increasing discontent with McGrane's late arrivals. Thus, while Volz clearly felt McGrane's chronic lateness was problematic, she did not address the issue with McGrane the months prior to her termination. Volz decision not to intervene earlier in an effort to counsel a lessor disciplinary action appears suspect in the face of McGrane's 20 year service to a company for which she repeatedly grossed over $300,000 in sales for the company.

McGrane also premises her argument on the following note left by Volz for members of her team:
Dear Team:
........
Please start working as a team take pride in the area. KEEP IT CLEAN. NO HALF-ASSERS ON THIS TEAM — They will go bye-bye!
Thanks, Leslie
Although the use of profanity could be offensive to some, it is addressed to the entire team and adds little if anything to McGrane's claim of age or sex-plus age discrimination.

Defendant argues that even assuming Volz harbored discriminatory animus against McGrane, which they vehemently deny, Volz did not participate in the final decision to terminate McGrane. However, the record reveals that Volz's personal documentation of McGrane's attendance was solicited by corporate management. In delivering that information, neither Volz nor Golinvaux offered documentation of McGrane's above average performance. Thus, the information relied upon to terminate McGrane was the product of Volz, whom McGrane maintains held discriminatory animus against her. Courts have found that summary judgment is generally inappropriate where the plaintiff can show that an employee with discriminatory animus provided factual information that may have affected the adverse employment action. See Dey v. Colt Construction Development Co., 28 F.3d 1446, 1459 (7th Cir. 1994) (citing Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990) (finding that even where the plaintiff's supervisor may not have passed along discriminatory animus to the ultimate decision maker, that animus tainted his assessment of the plaintiff's performance, on which the decision maker did rely)). McGrane has successfully generated a question of fact about he the causal link between Volz's actions and her discharge, sufficient to impute any discriminatory animus held by Volz to the decision to terminate McGrane.

The Court is aware that Defendant vigorously disputes McGrane's characterization of the record. And while the Court is cognizant that a jury may not be inclined to acquiesce in her portrayal of the facts, at the summary judgment stage this Court "must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves, 120 S.Ct. at 2110 (citing Lytle v. Household Mfg., Inc., 494 U.S. 545, 554-555 (1990); see also Continental Ore Co. v. Union Carbide Carbon Corp., 370 U.S. 690, 696, n. 6 (1962). "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Reeves, 120 S.Ct. at 2110 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). "Thus, although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe," and "should give credence to the evidence favoring the nonmovant as well as that `evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses.'" Reeves, 120 S.Ct. at 2110 (quoting Wright A. Miller, Federal Practice and Procedure § 2529 at 300 (2d ed. 1995))).

The question for this Court is whether McGrane has offered sufficient evidence that Younkers alleged business reason for terminating the employment of an undisputedly exceptional salesperson was pretextual. In making this determination, this Court is aware that Federal courts are not to 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) (internal quotations omitted). McGrane has put forth evidence that Younkers' management: (1) unfairly documented McGrane's attendance problems while failing to document and discipline similar infractions by other male employees; (2) purposely scheduled her on days when management knew she could not arrive on time and then documented her for it; and (3) did not keep her abreast of possible termination the months prior to her termination although the company' policy was that she be fully informed. Viewing the facts in the light most favorable to McGrane, and giving her the benefit of all reasonable inferences that can be drawn from those facts, this Court finds McGrane has successfully generated a genuine issue of material fact as to whether the reason for her termination was lawful or based on her age or her sex-plus age.

For the aforementioned reasons, Defendant's motion for summary judgment as to McGrane's age discrimination claim pursuant to the ADEA and the ICRA, and her sex-plus age discrimination claim pursuant to Title VII and the ICRA is denied.

Defamation Claim

McGrane brings a claim of defamation stemming from Defendant's decision to escort her out of the store upon termination of her employment. Both Defendant Younkers and Defendant Volz move for summary judgment on this claim. Defamation is an invasion of one's interest in reputation and good name. See Lara v. Thomas, 512 N.W.2d 777, 785 (Iowa 1994). It consists of the twin torts of libel and slander — the former being written and the latter being oral. See Johnson v. Nickerson, 542 N.W.2d 506, 510 (Iowa 1996); Lara, 512 N.W.2d at 785; see also Page Keeton, Prosser and Keeton on the Law of Torts § 111, at 771 (5th Ed. 1984); Kerndt v. Rolling Hills National Bank, 558 N.W.2d 410, 418 (Iowa 1997). Additionally, defamation can be published through actions or conduct as well as through spoken or written words. See Huegerich v. IBP, 547 N.W.2d 216, 221 (1996). "[T]o establish a prima facie case of defamation the plaintiff must show the defendant (1) published a statement that (2) was defamatory (3) of and concerning the plaintiff, and (4) resulted in injury to the plaintiff." Johnson, 542 N.W.2d at 510; Taggart v. Drake Univ., 549 N.W.2d 796, 802 (Iowa 1996).

Defamation is generally proven through a showing that the publicized statements were false, made with malice, and caused damage. See Huegerich, 547 N.W.2d at 221. However, if the statement is considered defamatory per se, "the elements of malice, falsity, or damage need not be proven." Id. Statements are considered defamatory per se when they are presumed, because of the very words spoken, to have a defamatory effect. See Jenkins v. Wal-Mart Stores Inc., 910 F. Supp. 1399, 1425-26 (N.D. Iowa 1995); Lara, 512 N.W.2d at 785 (stating "[s]tatements which are actionable without proof of malice, falsity, or special harm fall within the category of slander `per se.'"); see also Johnson, 542 N.W.2d at 510 (explaining "a statement is libelous per se if it has `a natural tendency to provoke the plaintiff to wrath or expose him to public hatred, contempt, or ridicule, or to deprive him of the benefit of public confidence or social intercourse'") (quoting Prewitt v. Wilson, 103 N.W. 365, 367 (1905)). This category includes statements affecting a person in his or her business, trade, profession, or office, as well as attacks on a person's integrity and moral character. See Kerndt, 558 N.W.2d at 418; Lara, 512 N.W.2d at 785; Vinson v. LinMar Community Sch. Dist., 360 N.W.2d 108, 115-16 (1985) (stating "[a]n attack on the integrity and moral character of a party is [defamation] per se"). The plaintiff "still bears the burden of proving the element of publication" regardless of whether the statements is considered defamatory per se or not. Huegerich, 547 N.W.2d at 221.

McGrane maintains that Younkers' decision to escort her from the store upon termination was defamatory per se. She contends such procedures are reserved for employees accused of theft. The fact that she was escorted from the store imputed theft on her and ultimately was an attack on her moral character. Defendants challenge McGrane's claim on substantive grounds as well as under the doctrine of qualified privilege.

Before the Court addresses the merits of McGrane's defamation claim, McGrane's claim as it applies to Volz can quickly be dismissed. The record reflects that the decision to escort McGrane out of the store was made by Golinvaux and executed at her request by Patrillo. Because there is no evidence in the record to suggest Volz was a party to the decision to escort McGrane from the store, McGrane's defamation claim against Volz fails as a matter of law.

With regards to her claim against Younkers, McGrane is correct that to accuse a person of an indictable crime is considered defamation per se. See Huegerich, 547 N.W.2d at 221 (explaining crime must either involve moral turpitude or subject person accused to sentence of incarceration) (citing Rees v. O'Malley, 461 N.W.2d 833, 835 (Iowa 1990)); see also Lara, 512 N.W.2d at 785 (finding employers inquiries into whether an employee had "drug problem" could be defamatory per se because imputation of substance abuse clearly reflects on employee's capacity and fitness to perform his or her duties). However, defamation per se is reserved for statements which by the very words used are defamatory. See, e.g., Vinson, 360 N.W.2d at 115-16 (finding employer's statements accusing employee of falsifying information on time cards were libel per se); Galloway v. Zuckert, 447 N.W.2d 553, 554 (Iowa. Ct. App. 1989), cert denied, 494 U.S. 1057 (1990) (finding it is libel per se to call a person a liar or to make statements that impute dishonesty to a person); see also 50 Am. Jur.2d Libel Slander § 180 (explaining statements accusing a person of possessing illegal drugs, such as speed, would constitute defamation per se). In the present instance, it is the interpretation of the listener that is at issue; that is, one would need to interpret the action of escorting McGrane from the store as imputing theft on her. The action of escorting an employee from an establishment cannot, on its face, be considered defamatory.

Because Defendant's actions are not considered defamatory per se, McGrane must establish malice, falsity, damage and publication in order to prevail on her claim of defamation. See Jenkins, 910 F. Supp. at 1425-26; Huegerich, 547 N.W.2d at 221. Defendant limits its substantive challenge to the element of publication. Defendant maintains that walking a terminated employee out the store for legitimate business reasons cannot be considered a defamatory publication. While the Court does have some reservation about McGrane's ability to establish the publication element of her claim, see, e.g., Huegerich, 547 N.W.2d at 221 (citing 46 A.L.R.4th 403 § 7; Davis v. Ross, 754 F.2d 80, 84 (2d Cir. 1985) (finding merely stating that employee was terminated is not defamatory); O'Bryan v. KTIV Television, 868 F. Supp. 1146, 1170 (N.D. Iowa 1994) (stating "mere publication of an employee's demotion is not itself defamatory"), rev'd on other grounds, 64 F.3d 1188 (8th Cir. 1995); Zechman v. Merrill Lynch, Pierce, Fenner Smith, Inc., 742 F. Supp. 1359, 1371 (N.D. Ill. 1990) (holding mere publication of an employee's termination is not itself defamatory)), even assuming such acts are defamatory publication, Defendant's actions are protected by qualified privilege. Accordingly, the Court will turn directly to this affirmative defense.

Qualified privilege allows "the employer who is evaluating or investigating an employee in good faith and within the bounds of the employment relationship" to be protected from defamation suits. Taggart, 549 N.W.2d at 803 (internal quotations omitted). It is an affirmative defense that must be pleaded, see Vinson, 360 N.W.2d at 116, and the burden is on the defendant to establish the existence of that privilege. See Lara, 512 N.W.2d at 785; Rees, 461 N.W.2d at 837; see also Spencer v. Spencer, 479 N.W.2d 293, 296 (Iowa 1991), cert. denied, 506 U.S. 840 (1992). A defendant can establish qualified privilege by showing that the alleged defamatory communication was (1) "made in good faith; (2) the defendant had an interest to be upheld; (3) the statements were limited in their scope to this purpose; (4) the statements were made on a proper occasion; and (5) publication was in a proper manner and to proper parties only." Jenkins, 910 F. Supp. at 1427; see also Taggart, 549 N.W.2d at 803 (citing Brown v. First Nat'l Bank of Mason City, 193 N.W.2d 547, 552 (Iowa 1972)). The statements must be made "in a manner and under circumstances fairly warranted by the occasion." Lara, 512 N.W.2d at 785; Rees, 461 N.W.2d at 837. It is generally for the court to decide whether the privilege is available for the communication in question. See Brown, 193 N.W.2d at 552; Restatement (Second) of Torts § 619(1), p. 316 (1977).

Defendant maintains it had a legitimate business interest in escorting a terminated employee from its store due to previous alleged incidents of insubordination, that this decision was made in good faith, and that this action was limited in scope. Defendant bolsters its argument with the sworn statement of Tammy Perrott, offered into evidence by McGrane, which states that employees were escorted from the store for theft as well as for serious violations of company policy. The use of profanity and accusations against store management on prior occasions, Defendant argues, could be considered severe violations of store policy and therefore warrant the precautionary measures taken by the store.

This Court finds it is appropriate to apply the privilege to Defendant's actions in this case. See, e.g., Marks v. Estate of Hartgerink, 528 N.W.2d 539, 545 (Iowa 1995). In Marks, the Iowa Supreme Court found that statements in a letter made by a church elder, who had a duty imposed by the church to look after the spiritual well-being of church members, were privileged where the statements were made only to other church officials who would have a role in church disciplinary proceedings. See id. Like Marks, the decision to escort a terminated employee out of the store would be a reasonable exercise of a store manager's discretion. To the extent this escort was published to co-employees, it was done so "in a manner and under circumstances fairly warranted by the occasion." Lara, 512 N.W.2d at 785.

Of course the Court recognizes that McGrane denies any incidents of insubordination and therefore contends any decision to escort her out of the store must have been done with malice. McGrane is correct that qualified privilege "protects only those statements made without actual malice." Taggart, 549 N.W.2d at 803-04 (citing Vinson, 360 N.W.2d at 116). Where there is actual malice — proof that the statement was made with malice in fact, ill-will or wrongful motive the privilege does not apply. See Ott v. Murphy, 141 N.W. 463, 468-69 (1913); Taggart, 549 N.W.2d at 803-04 (stating "[a] finding of actual malice turns on the motive for the communication, and requires proof that the statement was made with ill will or wrongful motive"); see also Vinson, 360 N.W.2d. at 117. However, "[a]ctual malice occurs when a statement is made with knowledge that it is false or with reckless disregard for its truth or falsity." Taggart, 549 N.W.2d at 804 (citing Jones v. Palmer Communications, Inc., 440 N.W.2d 884, 894 (Iowa 1989)); McCarney v. Des Moines Register Tribune Co., 239 N.W.2d 152, 156 (Iowa 1976). Here there is no evidence that Golinvaux harbored any malice towards McGrane. McGrane's allegations of malice hinge on the actions of Volz who took no part in the decision to escort McGrane out of the store. So even if the Court were to assume that Volz fabricated the incidents of insubordination and placed notes to that effect in McGrane's file, there is no evidence that Golinvaux was aware of the fabrications or recklessly relied on them in her decision to escort McGrane from the store.

Because Defendant's actions are cloaked in qualified privilege and McGrane has failed to show they were taken with actual malice, Defendant's motion for summary judgment as to McGrane's claim of defamation is granted.

Intentional Infliction of Emotional Distress Claim

McGrane brings a claim of intentional infliction of emotional distress alleging the manner in which she was terminated was outrageous and intentionally detrimental to her reputation. In order to prevail on a claim of intentional infliction of emotional distress, McGrane must show: "(1) outrageous conduct by the defendan[t]; (2) the defendant['s] intentional causing, or reckless disregard of the probability of causing emotional distress; (3) severe or extreme emotional distress was suffered by plaintiff; and (4) actual proximate causation of the emotional distress by defendant['s] outrageous conduct." VanBaale v. City of Des Moines, 550 N.W.2d 153, 156 (Iowa 1996); see also Amsden v. Grinnell Mutual Reinsurance Co., 203 N.W.2d 252, 255 (Iowa 1972). Defendant contends McGrane failed to establish the first and third elements of her claim.

As to the first element, Defendant argues the challenged actions cannot be considered outrageous as a matter of law. "`[I]t is for the court to determine in the first instance, as a matter of law, whether the conduct complained of may reasonably be regarded as outrageous.'" Cutler v. Klass, Whicher Mishne, 473 N.W.2d 178, 183 (Iowa 1991) (quoting M.H. By and Through Callahan v. State, 385 N.W.2d 533, 540 (Iowa 1986)); see also Mills v. Guthrie County Rural Elec., 454 N.W.2d 846, 849 (Iowa 1990). For conduct to be outrageous, it must be "so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Cutler, 473 N.W.2d at 183 (quoting Vaughn v. Ag Processing, Inc., 459 N.W.2d 627, 636 (Iowa 1990)); see also Engstrom v. State, 461 N.W.2d 309, 320 (Iowa 1990) (quoting Vinson, 360 N.W.2d at 118); see also Harsha v. State Sav. Bank, 346 N.W.2d 791, 801 (Iowa 1984); Restatement (Second) of Torts § 46 Comment d (1965)). In Northrup v. Farmland Industries, the Iowa Supreme Court relied on the Restatement (Second) of Torts to ascertain the level of "egregiousness required to elevate (or downgrade) mere bad conduct to the level of outrageousness." 372 N.W.2d 193, 198 (Iowa 1985). The Northrup Court wrote:

It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by "malice," or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!"

372 N.W.2d at 198 (quoting Restatement (Second) of Torts § 46 (1965)); see also VanBaale, 550 N.W.2d at 156-57 (same as above).

A showing that conduct is so outrageous that it is actionable is a particularly difficult standard to meet. In fact, as one court in the Northern District of Iowa has observed, "[i]t is a simpler matter to discover what kinds of behavior the Iowa Supreme Court has held insufficiently outrageous to sustain the tort than it is to find out what kind of behavior is sufficiently egregious." Chester v. Northwest Iowa Youth Emergency Serv. Ctr, 869 F. Supp. 700, 710-11 (N.D. Iowa 1994) (citing long list of Iowa cases where courts found alleged conduct was not sufficiently outrageous, including e.g., Cutler, 473 N.W.2d at 183 (letter advising partner who had suffered from mental illness that he could not return to law practice without further review by partners was not extremely outrageous and did not generate genuine issue of material fact); Engstrom, 461 N.W.2d at 320 (negligent failure to search for plaintiffs' adopted daughter's natural father before placing her in plaintiffs' home, and telling adoptive parents father was dead without verifying his death, not outrageous); Kirk v. Farm City Ins. Co., 457 N.W.2d 906, 911 (Iowa 1990) (insurance company's refusal to pay full amount of uninsured coverage not outrageous); Mills v. Guthrie County Rural Electric Cooperative Assoc., 454 N.W.2d 846, 849 (1990) (rural electric cooperative's conduct in using split bolt connectors instead of compression connectors to connect grounding jumper wire to main neutral line, in failing to discover dangerous situation that such omission presented, and in conducting settlement negotiations through insurance carrier with cooperative customers who sustained fire damage not sufficiently outrageous)). Indeed, "[i]t has not been enough that the defendant acted with intent which is tortious or even criminal, or that he has intended to inflict emotional distress." Blong v. Snyder, 361 N.W.2d 312, 316 (Iowa App. 1984) (internal quotations omitted).

Reviewing the Iowa case law, it is clear that escorting a terminated employee from a place of business, while humiliating, particularly if it falsely implicates the plaintiff of theft, does not rise to the level of "utterly intolerable in a civilized society." See, e.g., Northrup, 372 N.W.2d at 198-99 (finding employee's discharge for alcoholism could not be considered outrageous even though supervisor yelled at employee, suggested employee falsified documents, and accused employee of lying); Vinson, 360 N.W.2d at 119 (finding conduct of school bus driver supervisors was not outrageous although it was sufficient to allow finding that supervisors engaged in deliberate campaign to badger and harass driver, including accusing her of falsifying time records and persisting in the accusation even though supervisors were aware that she reported time accurately).

Because McGrane has failed to meet the first element of her claim of intentional infliction of emotional distress, Defendant is entitled to summary judgment.

CONCLUSION

For the foregoing reasons, Defendant's motion is denied with regards to Plaintiff's claims of discriminatory discharge pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, the Age Discrimination in Employment Act 29 U.S.C. § 621 et seq., and Chapter 216 of the Iowa Code. Defendant's motion is granted with regards to Plaintiff's claims of Defamation and Intentional Infliction of Emotional Distress.

ORDER

Accordingly it is Ordered:

Defendant Volz's Motion for Summary Judgment on Plaintiff's claim of sex and age discrimination, Count I, is GRANTED.

Defendant Younker's Motion for Summary Judgment on Plaintiff's claim of sex and age discrimination, Count I, is DENIED.

Defendant Volz's and Younkers' Motion for Summary Judgment on Plaintiff's claim of Defamation, Count II, is GRANTED.

Defendant Volz's and Younkers' Motion for Summary Judgment on Plaintiff's claim of Intentional Infliction of Emotional Distress, Count III, is GRANTED.


Summaries of

McGrane v. Proffitt's Inc.

United States District Court, N.D. Iowa, Cedar Rapids Division
Dec 26, 2000
C 97-221-MJM (N.D. Iowa Dec. 26, 2000)
Case details for

McGrane v. Proffitt's Inc.

Case Details

Full title:WILMA MCGRANE, Plaintiff, vs. PROFFITT'S INC., d/b/a YOUNKERS and LESLIE…

Court:United States District Court, N.D. Iowa, Cedar Rapids Division

Date published: Dec 26, 2000

Citations

C 97-221-MJM (N.D. Iowa Dec. 26, 2000)

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