Larry R. Hedlund v. State of Iowa

IN THE SUPREME COURT OF IOWA
No. 18–0567

Filed June 28, 2019

LARRY R. HEDLUND,

Appellant,

vs.

STATE OF IOWA; K. BRIAN LONDON Commissioner of the Iowa
Department of Public Safety, Individually; CHARIS M. PAULSON, Director
of Criminal Investigation, Individually; GERARD F. MEYERS, Assistant
Director Division of Criminal Investigation, Individually; and TERRY E.
BRANSTAD, Individually,

Appellees.

Appeal from the Iowa District Court for Polk County, David May,

Judge.

Plaintiff appeals summary judgment dismissing all claims in an

employment case. AFFIRMED IN PART, REVERSED IN PART, AND

REMANDED.

Thomas J. Duff and Elizabeth Flansburg of Duff Law Firm, P.L.C.,

West Des Moines, and Roxanne Barton Conlin of Roxanne Conlin &

Associates, P.C., Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Jeffrey C. Peterzalek and

William Pearson, Assistant Attorneys General, for appellees.
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CHRISTENSEN, Justice.

Plaintiff seeks review of a district court order granting summary

judgment to the defendants on all claims in an employment case. On

appeal, plaintiff raises three issues. He argues the district court erred

when it determined judicial review following the administrative process

was the exclusive means to seek redress for alleged retaliation against a

whistleblower. Next, he argues the district court erred by denying his age

discrimination claim. Lastly, the plaintiff challenges the district court’s

finding of no “outrageous” conduct sufficient to support his tort of

intentional infliction of emotional distress.

We must first decide whether plaintiff’s direct civil action under Iowa

Code section 70A.28(5) (2014), the whistleblower statute, is precluded by

the availability of an administrative remedy. Relying on this court’s

decision in Walsh v. Wahlert, 913 N.W.2d 517 (2018), we conclude section

70A.28(5) expressly creates an independent cause of action in the

alternative to administrative remedies under Iowa Code chapter 17A.

Therefore, we reverse summary judgment as to that issue. For plaintiff’s

claim of age discrimination under the Iowa Civil Rights Act, we affirm the

district court’s determination that plaintiff failed to present sufficient

evidence from which a reasonable jury could infer age discrimination was

the real reason for his termination. We also affirm summary judgment on

plaintiff’s intentional infliction of emotional distress claim. None of the

defendants’ conduct was sufficiently egregious to satisfy the

“outrageousness” prong.

I. Background Facts and Proceedings.

In 1988, Larry Hedlund began a career with the Iowa Department of

Public Safety (DPS) as a trooper in the Iowa State Patrol. In 1989, he
 3

became a special agent for the Iowa Department of Criminal Investigation

(DCI), and in 2010, was promoted to special agent in charge (SAC).

In October 2012, Brian London became commissioner of DPS.

London then appointed Assistant Director Charis Paulson as the director

of DCI. In January 2013, SAC Gerard Meyers was promoted to assistant

director for field operations of DCI and became Hedlund’s direct

supervisor. About a month later, Hedlund composed and circulated an

email critical of Meyers. Members of DCI, including Hedlund’s subordinate

agents, received the email. The following day, Meyers set up a meeting

with Hedlund to discuss, among other things, the email. During that

meeting, Hedlund was not disciplined although Meyers advised him to stop

circulating critical emails. Meyers also told Hedlund he did not want to

have issues with him since he was in the “twilight of his career.” However,

Hedlund continued sending emails critical of upper management within

DPS and DCI.

On April 17, 2013, Hedlund filed a complaint with the Professional

Standards Bureau (PSB) against Paulson. The complaint alleged that on

August 28, 2012, Paulson distributed an email to members of DPS in

violation of department policy. Hedlund also alleged Paulson condoned

the persistent misuse of physical fitness incentive days. Similarly, on May

29, 2013, Hedlund filed a complaint with PSB against Meyers. The

complaint alleged Meyers condoned the misuse of physical fitness

incentive days and encouraged personnel to ignore parking citations.

On April 18, 2013, Paulson, Meyers, and the SACs held a conference

call to discuss strategic planning regarding the Field Operations Bureau

of DCI. Paulson indicated “Hedlund became extremely angry, yelled at

[him] and spoke in an unprofessional and insubordinate manner.” The

strategic planning was again discussed during an in-person meeting on
 4

April 23, 2013. The SACs expressed resistance to the proposed reduction

of zones and agents. The issue of agent burn-out and suicide arose.

Hedlund agreed with the stress-related issues and mentioned a past

colleague committed suicide. Paulson reported Hedlund mentioned

suicide four times. On April 25, Hedlund sent another email to his

subordinates critical of DPS management.

Hedlund requested and received approval for vacation on April 26 to

attend his niece’s art show in Cedar Rapids. The evening before, he drove

his state vehicle from Fort Dodge to Cedar Rapids where he spent the

night. The next morning, Hedlund contacted Wade Kisner, a retired DCI

agent, to discuss cold cases, and they met for a few hours. That same day,

Paulson filed a complaint with PSB against Hedlund. Paulson claimed

Hedlund had been disrespectful and insubordinate during the April 18

conference call. Unaware of Hedlund’s approved vacation day, Paulson

attempted to contact Hedlund on April 26. Paulson called and texted

Hedlund numerous times. Paulson indicated this was an attempt to set

up a meeting regarding Hedlund’s conduct. When asked if he was

working, Hedlund responded “yes and no.” 1 Paulson rescheduled the

meeting to Monday April 29 2 because of Hedlund’s approved vacation day.
Hedlund departed from Cedar Rapids on the afternoon of April 26.

On his way to Fort Dodge, he spotted a black SUV doing a “hard ninety.”

Hedlund contacted the Iowa State Patrol. Trooper Matt Eimers intercepted

the speeding SUV but determined it was an official state vehicle under the

operation of another Iowa State Patrol trooper for the purpose of

1Hedlund only claimed one hour of vacation on April 26.
2Paulson contacted Hedlund on the morning of April 29 to reschedule their
meeting. The record does not indicate whether the rescheduled meeting occurred.
 5

transporting the Governor of Iowa. The SUV was not stopped and no

citation was issued.

On April 29, Hedlund sent Paulson a lengthy email regarding

Meyers’s inability to perform his job. A half-hour later, Hedlund sent

another email to Paulson and Meyers designated “a complaint against

myself.” This email detailed the Governor’s SUV incident. Hedlund

summarized his failure to issue a citation to a speeding vehicle.

I take full responsibility for the incident being initiated and as
such will accept the responsibility of ensuring that the
appropriate actions are taken to address this incident. As the
ranking sworn peace officer involved in this incident and as a
Supervisor with the Department of Public Safety, I should
have insisted that the vehicle be stopped.

That same evening, Hedlund sent a third email to Paulson, Meyers, and

his subordinates. The email indicated Hedlund needed personal time for

the remainder of the day as well as April 30. In response, Meyers noted

Hedlund was not on approved leave status. On April 30, Hedlund sent

Paulson and Meyers an email that explained his leave request was a sick

day. Hedlund’s email stated, “I consider it a sick day due to the stress

that I am experiencing over the issues currently going on in the DCI/DPS.”

Hedlund subsequently provided a doctor’s letter excusing him from work

April 30 through May 6.

On May 1, Hedlund was placed on administrative leave with pay and

provided a notice of investigation. The notice alleged Hedlund engaged in

various acts of misconduct during the previous month. That day, the PSB

notice of investigation was delivered to Hedlund’s home by Meyers,

Assistant Director of Field Operations David Jobes, and Sergeant Wes

Niles. Hedlund was relieved of his state-issued phone, car keys, service

weapon, and various other items. On May 14, Hedlund was ordered to
 6

attend a fitness-for-duty evaluation. Hedlund was declared fit for duty at

that time.

PSB investigators interviewed Hedlund on June 19. On July 17,

PSB issued a 500-page report of its investigation. It found Hedlund

engaged in multiple acts of insubordination. That same day, Paulson

terminated Hedlund. The termination alleged Hedlund engaged in

unbecoming or prohibited conduct, violated the courteous behavior rule,

and improperly used state property. The termination also included a

notice of right to appeal in accordance with Iowa Code section 80.15. 3

On July 18, Governor Branstad held a press conference. Governor

Branstad addressed several matters, including Hedlund’s termination. In

response to a press question about the relationship between Hedlund’s

employment issues and any “morale issues” at DPS, Governor Branstad

stated, “They [DPS] felt for the morale and for the safety and well-being of

the Department, this was action that was necessary.” When asked if the

termination was required, Governor Branstad responded he believed the

action was “a fair and just decision.”

On August 8, Hedlund filed a petition in district court and alleged

wrongful discharge in violation of public policy and violation of Iowa Code

chapter 70A. 4 On August 13, Hedlund filed an appeal with the

Employment Appeal Board (EAB) pursuant to Iowa Code section 80.15.

On January 16, 2014, Hedlund voluntarily dismissed his EAB appeal prior

to the evidentiary hearing. EAB granted the dismissal on January 22.

3Hedlund continued to receive full salary and benefits until the conclusion of the
appeal. See Iowa Code § 80.15.
4Hedlund subsequently amended his petition to include the claims of intentional
infliction of emotional distress and age discrimination.
 7

Pursuant to this dismissal, DPS notified Hedlund his termination would

be effective January 30.

On January 23, Hedlund filed a complaint with the Iowa Civil Rights

Commission. Hedlund indicated he was discriminated against based on

his age. Hedlund indicated he suffered two adverse actions—

“disciplined/suspended” and “terminated.” He did not claim he had been

“forced to quit/retire” or “harass[ed].” The complaint named DPS and

Meyers as the actors.

On January 29, one day before his termination would have become

effective, Hedlund filed an application with the Peace Officers’ Retirement

System (PORS) for retirement benefits. The PORS Board approved

Hedlund’s application effective February 17. By retiring, Hedlund

preserved $94,000 worth of his sick leave balance.

Defendants filed a motion to dismiss Hedlund’s district court claims.

The district court granted the motion with regard to Hedlund’s claim of

wrongful discharge in violation of public policy. Hedlund filed a motion to

amend the district court’s dismissal ruling. The district court denied his

motion to amend. Hedlund then filed an application for interlocutory

review with this court. On February 26, 2016, we dismissed his appeal.

Hedlund v. State, 875 N.W.2d 720 (Iowa 2016). On October 5, 2017,

defendants filed a motion for summary judgment on all remaining claims.

The district court granted the motion and dismissed Hedlund’s entire case.

Hedlund appealed the district court’s ruling; we retained the appeal.

II. Standard of Review.

We review a district court’s grant of summary judgment for

correction of errors at law. Linn v. Montgomery, 903 N.W.2d 337, 342 (Iowa

2017). Summary judgment is appropriate only when the record shows no

genuine issues of material fact and the moving party is entitled to
 8

judgment as a matter of law. Iowa R. Civ. P. 1.981(3). We view the

summary judgment record in a light most favorable to the nonmoving

party. Phillips v. Covenant Clinic, 625 N.W.2d 714, 717 (Iowa 2001) (en

banc). “The court must also consider on behalf of the nonmoving party

every legitimate inference that can be reasonably deduced from the

record.” Id. at 717–18. “Even if the facts are undisputed, summary

judgment is not proper if reasonable minds could draw different inferences

from them and thereby reach different conclusions.” Banwart v. 50th St.

Sports, L.L.C., 910 N.W.2d 540, 544–45 (Iowa 2018) (quoting Clinkscales

v. Nelson Sec., Inc., 697 N.W.2d 836, 841 (Iowa 2005) (per curiam)).

Therefore, our review is “limited to whether a genuine issue of material fact

exists and whether the district court correctly applied the law.” Pillsbury

Co. v. Wells Dairy, Inc., 752 N.W.2d 430, 434 (Iowa 2008).

III. Analysis.

Hedlund raises three issues. First, Hedlund argues the district

court erred in granting summary judgment on his section 70A.28

whistleblower claim. Second, Hedlund claims the district court erred in

denying his age discrimination claim. Lastly, Hedlund contends the

district court erred in granting summary judgment on the outrageousness

prong of his claim for intentional infliction of emotional distress.

A. Whistleblower.

1. Civil action. The issue before us concerns the availability of

remedies under two distinct Iowa Code provisions. Iowa Code section

70A.28 5 and Iowa Code section 80.15 each address adverse employment

action against state employees. Hedlund seeks the remedy of section

5Amended in 2019, Iowa Code section 70A.28(5)(a) now includes “civil damages in
an amount not to exceed three times the annual wages and benefits received by the
aggrieved employee prior to the violation of subsection 2.”
 9

70A.28, commonly known as Iowa’s whistleblower statute. See Iowa Code

§ 70A.28. We must decide whether Hedlund’s direct civil action is

precluded by the availability of section 80.15.

Last term this court decided Walsh, 913 N.W.2d 517. We addressed

the statutory framework of Iowa’s whistleblower statute and parsed the

“151-word linguistic jungle” to reveal the relevant portion,

A person shall not discharge an employee . . . as a
reprisal . . . for a disclosure of any information by that
employee to a member or employee of the general
assembly . . . or a disclosure of information to any other
public official or law enforcement agency if the employee
reasonably believes the information evidences a violation of
law or rule . . . .

Walsh, 913 N.W.2d at 521 (quoting Iowa Code § 70A.28(2)). Walsh—and

now Hedlund—relied on language in the whistleblower statute allowing the

provisions of section 70A.28(2) to “be enforced through a civil action.” Id.

at 521, 524 (quoting Iowa Code § 70A.28(5)).

A potential alternative to section 70A.28(5)’s civil action is found in

Iowa Code section 80.15. It provides the statutory framework for discipline
and dismissal of peace officers within DPS. The relevant portion states,

After the twelve months’ service, a peace officer of the
department . . . is not subject to dismissal, suspension,
disciplinary demotion, or other disciplinary action resulting in
the loss of pay unless charges have been filed with the
department of inspections and appeals and a hearing held by
the employment appeal board . . . if requested by the peace
officer, at which the peace office has an opportunity to present
a defense to the charges. The decision of the appeal board is
final, subject to the right of judicial review in accordance with
the terms of the Iowa administrative procedure Act, chapter
17A.

Iowa Code § 80.15. Hedlund fits squarely within this definition. It is the

defendants’ position that section 80.15, and therefore the administrative

remedy under chapter 17A, is the exclusive means to seek judicial review.
 10

We disagree. Our holding in Walsh is controlling. See Walsh, 913 N.W.2d

at 525.

Section 80.15 is not the exclusive means for Hedlund to seek

remedy. Iowa Code section 70A.28(5) “expressly creates an independent

cause of action in the alternative to administrative remedies under Iowa

Code chapter 17A.” Id. We have previously emphasized “section 70A.28

established ‘a public policy against retaliatory discharge of public

employees and considers the violation of the policy to be a public harm.’ ”

Id. at 524 (quoting Worthington v. Kenkel, 684 N.W.2d 228, 231, 233 (Iowa

2004) (allowing section 80.15 employee to seek injunctive relief under

section 70A.28(5)(b))). Because the legislature expressly created section

70A.28(5) as an independent statutory cause of action, a challenge to

agency action under the administrative procedure act is not the exclusive

means of obtaining judicial review. See id. at 525. Hedlund may seek

judicial review of DPS action through 70A.28(5)’s civil action. “To hold

otherwise would eliminate a choice of remedies that the legislature

expressly created.” Id. The district court erred in granting summary

judgment against Hedlund’s 70A.28 claim.

2. Conduct covered by section 70A.28. The district court granted

defendants’ summary judgment before reaching the merits of Hedlund’s

section 70A.28 whistleblower claim. It is defendants’ position summary

judgment remains appropriate because Hedlund did not satisfy the

statutory requirements of his claim. To engender the whistleblower’s

statutory remedy, Hedlund must disclose information to a “public official

or law enforcement agency” and reasonably believe “the information

evidences a violation of law or rule, mismanagement, a gross abuse of

funds, an abuse of authority, or a substantial and specific danger to public

health or safety.” Iowa Code § 70A.28(2). Hedlund asserts reasonable
 11

minds could draw different inferences and reach different conclusions with

respect to whom the disclosures of information were made and whether

the information evidences a type of wrongdoing. When viewing the

evidence in the light most favorable to Hedlund and drawing all legitimate

inferences therefrom, we agree summary judgment is not appropriate.

The parties do not dispute Hedlund made three separate

disclosures. The first two disclosures were complaints Hedlund filed with

PSB. The third disclosure was Hedlund’s April 29 email to Paulson and

Meyers. Defendants articulate such disclosures were not made to a

qualifying public official or law enforcement agency. Hedlund indicates

that PSB, as part of DPS, is a proper law enforcement agency, and that the

April 29 email to Paulson and Meyers was directed to London, the

commissioner of DPS. At minimum, we determine the commissioner of

DPS qualifies as a law enforcement agency under the whistleblower

statute. See Iowa Code §§ 80.1, .2, .9 (creating DPS and establishing “[i]t

shall be the duty of the department to prevent crime, to detect and

apprehend criminals, and to enforce such other laws as are hereinafter

specified”). Therefore, Hedlund has shown reasonable minds could differ

as to whether he made disclosures to the proper entities.

Defendants also contend that Hedlund is nothing more than a

“chronic complainer” and that his disclosures are not whistleblowing. See

Blackburn v. United Parcel Serv. Inc., 3 F. Supp. 2d 504, 517 (D.N.J. 1998).

But when affording Hedlund every legitimate inference, summary

judgment is improper as to whether the information evidences a type of

wrongdoing. Hedlund’s PSB complaints concerned, among other things,

his supervisors’ condoned misuse of agent time off and the encouragement

to ignore lawfully issued parking citations. Further, Hedlund’s April 29

email recounted “the [well-known] dangers of traveling at a high rate of
 12

speed” and how the speeding state vehicle “can quickly put others at risk.”

This information is not some trivial matter or a subjective disagreement

with the actions of a supervisor; the disclosures could reasonably evidence

“a violation of law or rule, mismanagement, a gross abuse of funds, an

abuse of authority, or a substantial and specific danger to public health

or safety.” Iowa Code § 70A.28(2); see also Fraternal Order of Police, Lodge

1 v. City of Camden, 842 F.3d 231, 241 (3d Cir. 2016) (disagreeing with

defendant’s view that police officers were “chronic complainers” and

“squeaky wheels”). Hedlund has again demonstrated reasonable minds

could reach different conclusions on whether his disclosure of information

evidences the statutory requirements of Iowa Code section 70A.28(2).

3. Recovery under section 70A.28. Upon remand, Hedlund asserts

he is entitled to a jury trial and damages for emotional distress. Although

the district court did not reach the stated issues, the parties extensively

addressed each issue during the summary judgment proceeding. We

address the issues in tandem.

Generally, there is no right to a jury trial for cases brought in equity.

Weltzin v. Nail, 618 N.W.2d 293, 296 (Iowa 2000) (en banc). “[L]aw issues

are for the jury and equity issues are for the court.” Westco Agronomy Co.

v. Wollesen, 909 N.W.2d 212, 225 (Iowa 2017). To determine a proceeding

as legal or equitable, we look to the pleadings, relief sought, and nature of

the case. Carstens v. Cent. Nat’l Bank & Tr. Co. of Des Moines, 461 N.W.2d

331, 333 (Iowa 1990) (“The fact that an action seeks monetary relief does

not necessarily define the action as one at law.”). Hedlund’s petition seeks

relief pursuant to subsection 5(a) of the whistleblower statute. This states,

A person who violates subsection 2 is liable to an aggrieved
employee for affirmative relief including reinstatement, with
or without back pay, or any other equitable relief the court
deems appropriate, including attorney fees and costs.
 13

Iowa Code § 70A.28(5)(a) (emphasis added). “Under the doctrine of last

preceding antecedent, qualifying words and phrases refer only to the

immediately preceding antecedent, unless a contrary legislative intent

appears.” Iowa Comprehensive Petroleum Underground Storage Tank Fund

Bd. v. Shell Oil Co., 606 N.W.2d 376, 380 (Iowa 2000) (en banc). When we

look to the language of section 70A.28(5)(a), “any other equitable relief”

necessarily implies the “affirmative relief” authorized is equitable. Iowa

Code § 70A.28(5)(a); see Fjords N., Inc. v. Hahn, 710 N.W.2d 731, 737–38

(Iowa 2006). We also look to the intent of our legislature. Fjords, 710

N.W.2d at 738. We note relief under the Iowa Civil Rights Act provides for

actual damages. See Iowa Code § 216.15(9)(a)(8) (“Payment to the

complainant of damages for an injury caused by the discriminatory or

unfair practice which damages shall include but are not limited to actual

damages, court costs and reasonable attorney fees.”). If the legislature

intended to permit actual damages under the relief of section 70A.28(5)(a),

it would have so provided. See Shumate v. Drake Univ., 846 N.W.2d 503,

516 (Iowa 2014) (holding that the legislature’s “express inclusion” of

recovery rights in one provision but not another indicates the omission

was intentional). Therefore, the affirmative relief under section

70A.28(5)(a) is equitable relief.

B. Age Discrimination. At the summary judgment stage, the

district court determined Hedlund did not present sufficient evidence

“from which a reasonable jury could infer that age must have actually

played a role in the employer’s decision making process and had a

determinative influence on the outcome.” Hedlund both challenges the

district court’s use of the McDonnell Douglas analytical framework at the

summary judgment stage and asserts genuine issues of fact exist that he

was a victim of age discrimination.
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Hedlund charges age discrimination in violation of his rights under

chapter 216 of the Iowa Civil Rights Act (ICRA). The ICRA states, in

pertinent part,

It shall be an unfair or discriminatory practice for any . . .
[p]erson to . . . discharge any employee, or to otherwise
discriminate in employment against any . . . employee
because of . . . age . . . , unless based upon the nature of the
occupation.

Iowa Code § 216.6(1)(a). This is a general proscription against

discrimination and we “look[] to the corresponding federal statutes to help

establish the framework to analyze claims and otherwise apply our

statute.” Casey’s Gen. Stores, Inc. v. Blackford, 661 N.W.2d 515, 519 (Iowa

2003). Similarly, in DeBoom v. Raining Rose, Inc., we acknowledged,

“Because the Iowa Civil Rights Act was modeled after Title VII of the United

States Civil Rights Act, we turn to federal law for guidance in evaluating

the Iowa Civil Rights Act.” 6 772 N.W.2d 1, 10 (Iowa 2009).

To warrant submission of his age discrimination claim to the jury,

Hedlund must first establish he was a victim of age discrimination. See

Vaughan v. Must, Inc., 542 N.W.2d 533, 538 (Iowa 1996). This may be

accomplished by direct or indirect evidence. King v. United States, 553
F.3d 1156, 1160 (8th Cir. 2009) (“A plaintiff may establish her claim of

intentional age discrimination through either direct evidence or indirect

evidence.”). Hedlund has offered no direct evidence of discriminatory

intent; 7 therefore, he must rely on indirect evidence of discriminatory

6Although we have consistently applied federal guidance when interpreting the
ICRA, “the decisions of federal courts interpreting Title VII are not binding upon us in
interpreting similar provisions in the ICRA.” Estate of Harris v. Papa John’s Pizza, 679
N.W.2d 673, 678 (Iowa 2004).
7Direct evidence “show[s] a specific link between the alleged discriminatory

animus and the challenged decision.” Griffith v. City of Des Moines, 387 F.3d 733, 736
(8th Cir. 2004) (quoting Thomas v. First Nat’l Bank of Wynne, 111 F.3d 64, 66 (8th Cir.
1997)).
 15

motive. See Smidt v. Porter, 695 N.W.2d 9, 14 (Iowa 2005) (invoking the

McDonnell Douglas framework at summary judgment when plaintiff offered

no direct evidence of discriminatory intent under the ICRA); Landals v.

George A. Rolfes Co., 454 N.W.2d 891, 893 (Iowa 1990) (“The McDonnell

Douglas framework cannot be applied where the plaintiff uses the direct

method of proof of discrimination.”).

The parties disagree as to the appropriate analytical framework the

district court should employ at the summary judgment stage. Hedlund

asserts the McDonnell Douglas burden-shifting framework should be

abandoned for summary judgment purposes. Defendants contend

McDonnell Douglas remains the appropriate analytical framework at

summary judgment. See, e.g., McQuistion v. City of Clinton, 872 N.W.2d

817, 828–29 (Iowa 2015) (applying the McDonnell Douglas framework at

summary judgment when indirect evidence is used to infer discrimination

under the ICRA); Jones v. Univ. of Iowa, 836 N.W.2d 127, 147–48 (Iowa

2013) (affirming grant of summary judgment under the McDonnell Douglas

framework for race and gender discrimination claim under Title VII); Smidt,

695 N.W.2d at 14 (invoking McDonnell Douglas framework because

plaintiff offered no direct evidence of discriminatory intent). 8 We do not

need to decide this issue because, either way, we conclude that Hedlund

has failed to raise a genuine issue of material fact.

Under the familiar McDonnell Douglas burden-shifting framework,

Hedlund must carry the initial burden of establishing a prima facie case

of age discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802, 93 S. Ct. 1817, 1824 (1973). “The burden then must shift to the

8In Hawkins v. Grinnell Reg’l Med. Ctr., ___ N.W.2d ___, ___ (Iowa 2019), where an

age discrimination case went to trial, we held that “we no longer rely on the McDonnell
Douglas burden-shifting analysis and determin[ing]-factor standard when instructing the
jury.” We did not disturb our prior law as it applies to summary judgment.
 16

employer to articulate some legitimate, nondiscriminatory reason” for its

employment action. Id. Finally, the burden returns to Hedlund to

“demonstrate that the proffered reason is a mere pretext for age

discrimination.” Rideout v. JBS USA, LLC, 716 F.3d 1079, 1083 (8th Cir.

2013). In other words, “[i]f the employer offers a legitimate

nondiscriminatory reason, the plaintiff must show the employer’s reason

was pretextual and that unlawful discrimination was the real reason for

the termination.” Deboom, 772 N.W.2d at 6–7 (quoting Smidt, 695 N.W.2d

at 15); see Iowa Code § 216.6(1)(a) (It is discriminatory practice for any

person “to discharge any employee . . . because of the age.” (Emphasis

added.)); see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,

141, 120 S. Ct. 2097, 2105 (2000) (“That is, the plaintiff’s age must have

‘actually played a role in [the employer’s decisionmaking] process and had

a determinative influence on the outcome.’ ” (alterations in original)

(quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S. Ct. 1701,

1706 (1993))).

Under McDonnell Douglas, we can assume that Hedlund made out a

prima facie case. Regardless, defendants have produced legitimate

nondiscriminatory reasons for Hedlund’s termination. Hedlund

communicated “negative and disrespectful messages” about DCI and

members of its leadership team with his subordinate employees. Further,

Hedlund drove a state vehicle to Cedar Rapids for nonwork related

purposes and was deceptive about his work status when questioned.

Simply put, defendants contend Hedlund was served notice of his

termination after he violated multiple DCI departmental rules and
 17

regulations. 9 These are legitimate, nondiscriminatory reasons for

defendants’ actions. Hedlund now retains the ultimate burden of

producing evidence from which a reasonable jury could conclude the

defendants’ proffered reasons were pretextual “and that unlawful

discrimination was the real reason for the termination.” Smidt, 695

N.W.2d at 15.

To rebut the legitimate nondiscriminatory reasons, Hedlund relies

on remarks made by Meyers. Hedlund first contends Meyers in a February

2013 meeting with Hedlund made reference to Hedlund being in the

“twilight of his career.” Hedlund next contends that Meyers later inquired

in a conference call in February 2013 as to when Hedlund and other SAC

were planning to retire. The district court concluded such remarks were

insufficient to support an inference of age discrimination, and we agree.

Employers may make reasonable inquiries into an employee’s retirement

plan. See Cox v. Dubuque Bank & Tr. Co., 163 F.3d 492, 497 (8th Cir.

1998) (“[M]any courts have recognized that an employer may make

reasonable inquiries into the retirement plans of its employees.”); Moore v.

Eli Lilly & Co., 990 F.2d 812, 818 (5th Cir. 1993) (A new supervisor may

make “reasonable inquiries about the ages of the members of his work

force and their known plans for the future—facts on which to gauge the

anticipated longevity of his crew.”); Colosi v. Electri-Flex Co., 965 F.2d 500,

502 (7th Cir. 1986) (“[A] company has a legitimate interest in learning its

employees’ plans for the future, and it would be absurd to deter such

inquiries by treating them as evidence of unlawful conduct.”). In fact,

Hedlund was approaching, if he had not already attained, the permissible

9We note the notice of termination indicates Hedlund engaged in unbecoming or
prohibited conduct, violated the courteous behavior rule, and improperly used state
property.
 18

statutory retirement age for DPS officers. See Iowa Code § 97A.6(1)(a)

(authorizing retirement with full benefits at fifty-five years of age and

twenty-two years of service). At this point, a DPS officer—having dedicated

the better part of his or her career to the state’s vital public safety

mission—may have incentive to retire from DPS and potentially pursue

alternative employment.

Moreover, isolated remarks, such as “twilight of his career,” are not

sufficient on their own to show age discrimination. Forman v. Small, 271

F.3d 285, 293–94 (D.C. Cir. 2001) (remarks referring to plaintiff as “over

the hill” and in the “twilight of his career” insufficient to rebut defendant’s

nondiscriminatory reason for denying plaintiff a promotion). To infer such

discriminatory feelings influenced decision makers, we look to “the

relevant time in regard to the adverse employment action complained of.”

Id.; see Hunt v. City of Markham, 219 F.3d 649, 652 (7th Cir. 2000) (It is

possible to infer decision makers were influenced by discriminatory

feelings “when the decision makers themselves, or those who provide input

into the decision, express such feelings (1) around the time of, and (2) in

reference to, the adverse employment action complained of.”). The

remarks alone do not infer that the decision to terminate Hedlund was

influenced by discriminatory feelings. The record reveals the

reasonableness of Meyers’s remarks as well as the remoteness in time.

These remarks occurred five months prior to the adverse employment

action of which Hedlund complains. Hedlund testified in his deposition as

follows:

Q. We’ve talked a little bit about that meeting, I believe,
but in the course of that meeting, you indicate that “AD
Meyers stated two or three times during the course of that
meeting that Hedlund was in the, quote, twilight of his career,
end quote.” A. He made reference to me being in the twilight
of my career, yes.
 19

Q. Can you put that in context? What were you folks
discussing when he made those comments? A. My
recollection is he made a comment along the lines of he didn’t
want to have issues with me because I was in the twilight of
my career. That’s the best context I can recall it in.

Q. Other than that meeting on February 15, 2013, did
Gerard Meyers use those words “twilight of your career” in any
other conversations? A. No, not that I recall.

Q. Has Charis Paulson ever used such terms as
“twilight of your career” in any conversation she’s had with
you? A. No.
Meyers similarly explained in his deposition:

Q. On the meeting that you had on February 15,
2013 . . . did you make the comment to Hedlund that he was
in the twilight of his career? A. Yes, I did.

Q. Did you make that comment to him more than once?
A. I believe it was just once.

Q. Did you make any—did you ever discuss with
Hedlund when he was going to retire? A. Yes. I believe when
I mentioned the twilight of his career, I was referring to his
longevity and the ability that he had to rather than work
cases, mentor personnel within his assigned region.

As for the retirement question that you asked, it’s my
recollection that at some point during this departmental
strategic planning effort . . . each bureau AD was directed to
inquire with any personnel of senior status to determine what
their plans may be since we have a very young division and
we were struggling to maintain the necessary institutional
knowledge and experience.

Remarks of this kind “are remote in time and do not support a finding of

pretext for intentional age discrimination.” See Walton v. McDonnell

Douglas Corp., 167 F.3d 423, 427–28 (8th Cir. 1999) (affirming summary

judgment because plaintiff failed to present sufficient evidence of pretext

under McDonnell Douglas with remarks that occurred two years earlier).

Taken in a light most favorable to Hedlund, Meyers’s remarks occurred

five months prior to Hedlund’s notice of termination and are insufficient
 20

to establish pretext of age animus. See Ortiz-Rivera v. Astra Zeneca LP,

363 F. App’x 45, 48 (1st Cir. 2010) (“[M]ere generalized ‘stray remarks’

. . . normally are not probative of pretext absent some discernable

evidentiary basis for assessing their temporal and contextual relevance.”

(quoting Straughn v. Delta Air Lines, Inc., 250 F.2d 23, 36 (1st Cir. 2001))).

Hedlund also attempts to show defendants’ asserted reasons for his

termination were pretextual by demonstrating Meyers filled Hedlund’s

position with a somewhat younger employee. Michael Krapfl, a forty-five

year old with twenty-five years of law enforcement experience, was

promoted into Hedlund’s position; Hedlund was fifty-five years old with

twenty-five years of law enforcement experience at the time of his

termination. Hedlund cites Landals for the proposition that a sufficient

inference of discrimination may be drawn when a plaintiff’s position is

eliminated and a younger employee assumes those responsibilities. 454

N.W.2d at 895. But Landals is an example of specific circumstances

allowing for an inference of age discrimination. 10 Generally, evidence that

a younger person replaced the plaintiff’s position is insufficient to create a

reasonable inference of age discrimination. See Tusing v. Des Moines

Indep. Cmty. Sch. Dist., 639 F.3d 507, 520 (8th Cir. 2011) (“This fact, in
isolation, is insufficient to create a reasonable inference of age

discrimination.”); Carraher v. Target Corp., 503 F.3d 714, 719 (8th Cir.

2007) (“Although [plaintiff] was replaced by someone substantially younger

than him, in this case 28 years younger, we have previously held that this

10In Landals, the plaintiff was required to undergo a physical examination or face

discharge after he complained of chest pains, the company president specifically ordered
plaintiff’s lay off a month prior, and plaintiff was terminated without any reason. 454
N.W.2d at 895. Furthermore, the fifty-two-year-old plaintiff, who had been with the
company for approximately twenty-five years, was “an extremely competent and dedicated
employee.” Id. His duties were assumed by a twenty-five-year-old employee, who had
been with the company for six months, and a thirty-six-year-old employee, “who had been
with the company for approximately one year.” Id.
 21

fact . . . possesses ‘insufficient probative value to persuade a reasonable

jury that [plaintiff] was discriminated against.” (quoting Nelson v. J.C.

Penney Co., 75 F.3d 343, 346 (8th Cir. 1996))). Hedlund does not provide

sufficient evidence, beyond indicating an employee, younger by ten years,

filled his position, to support that defendants’ proffered reasons were mere

pretext. The promotion of Krapfl does not cast doubt on defendant’s

contention that Hedlund was terminated for violating DCI departmental

rules and regulations. Cf. Waldron v. SL Indus., Inc., 56 F.3d 491, 496–97

(3d Cir. 1995) (holding when employer “split [plaintiff’s] job, fired him,

offered one-half of his former job to a younger person while the other half

remained unadvertised, and then recombined the jobs and placed the

younger employee in the recombined post” it cast sufficient doubt on

plaintiff’s discharge as part of the company reorganization).

The promotion of Krapfl also leads Hedlund to assert Meyers would

give the lowest promotability scores to the oldest candidates. The

summary judgment record indicates four special agents have sought

promotion. Yet Hedlund only provided data for three of them: Ray Fiedler,

born in 1962; Jim Thiele, born in 1965; and Michael Krapfl, born in

1969. 11 The promotional process includes a written test, interview, and a

promotability score. Hedlund argues Fiedler and Thiele, the oldest of the

three, received the bottom two promotability scores. Although “subjective

promotion procedures are to be closely scrutinized because of their

susceptibility to discriminatory abuse,” Royal v. Mo. Highway & Transp.

Comm’n, 655 F.2d 159, 164 (8th Cir. 1981), Hedlund has not provided any

evidence showing Meyers made the promotional decision based on age.

The summary judgment record indicates neither Thiele nor Fiedler believe

age had anything to do with the promotion. Fiedler’s written test score

11Hedlund was born in 1957.
 22

was “probably middle of the pack,” and he admitted, “[T]here have been

other guys my age promoted.” In fact, Thiele did not even apply for

Hedlund’s vacant position but has taken the written test every year since

2007. There is no evidence sufficient to support an inference of age

discrimination based on the promotability scores of the oldest candidates.

Drawing all inferences in Hedlund’s favor, Hedlund has failed to

present sufficient evidence from which a reasonable jury could infer that

defendants’ legitimate, nondiscriminatory reason for termination was

pretextual and that age discrimination was the real reason for his

termination. Our rule governing summary judgment indicates Hedlund

“must set forth specific facts showing that there is a genuine issue for

trial.” Iowa R. Civ. P. 1.981(5). Even with the formulated assistance of the

McDonnell Douglas framework, Hedlund has not moved beyond

generalities. Slaughter v. Des Moines Univ. Coll. of Osteopathic Med., 925

N.W.2d 793, 808 (Iowa 2019) (“Summary judgment is not a dress rehearsal

or practice run; ‘it is the put up or shut up moment in a lawsuit . . . .’ ”

(quoting Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir.

2005))).

For similar reasons, we find that there is insufficient evidence to

withstand summary judgment outside of the McDonnell Douglas

framework. Meyers’s comments related to retirement rather than age.

They did not show animus toward age. The comments came several

months before the termination decision, with many events intervening

before that decision, including Hedlund’s trip to Cedar Rapids and the

report on the Governor’s vehicle doing a “hard ninety.” This is not enough

to allow a reasonable jury to infer that defendants attempted to terminate

Hedlund “because of” age.
 23

C. Intentional Infliction of Emotional Distress. In his final

argument, Hedlund asserts the individual defendants’ conduct was

sufficiently egregious to satisfy the outrageousness prong of his intentional

infliction of emotion distress claim. For the following reasons, we disagree.

To succeed on this claim, Hedlund must demonstrate four elements:

(1) outrageous conduct by the defendant; (2) the defendant
intentionally caused, or recklessly disregarded the probability
of causing, the emotional distress; (3) plaintiff suffered severe
or extreme emotional distress; and (4) the defendant’s
outrageous conduct was the actual and proximate cause of
the emotional distress.

Smith v. Iowa State Univ. of Sci. & Tech., 851 N.W.2d 1, 26 (Iowa 2014)

(quoting Barreca v. Nickolas, 683 N.W.2d 111, 123–24 (Iowa 2004)).

Hedlund must establish a prima facie case for the outrageous conduct

element. Id. For emotional distress cases, “it 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)). Here, the district

court determined Hedlund’s evidence was insufficient to rise to the level of

outrageous conduct.

The standard of outrageous conduct “is not easily met, especially in

employment cases.” Van Baale v. City of Des Moines, 550 N.W.2d 153, 157

(Iowa 1996), abrogated on other grounds by Godfrey v. State, 898 N.W.2d

844, 864, 872 (Iowa 2017). We have said the outrageous conduct “must

be extremely egregious; mere insults, bad manners, or hurt feelings are

insufficient.” Id. at 156.

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.
 24
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!”

Northrup v. Farmland Indus., Inc., 372 N.W.2d 193, 198 (Iowa 1985) (en

banc) (quoting Restatement (Second) of Torts § 46 cmt. d, at 73 (Am. Law

Inst. 1965)). We require substantial evidence of extreme conduct. Vinson
v. Linn-Mar Cmty. Sch. Dist., 360 N.W.2d 108, 118 (Iowa 1984).

“When evaluating claims of outrageous conduct arising out of

employer-employee relationships, we have required a reasonable level of

tolerance. Every unkind and inconsiderate act cannot be compensable.”

Vaughn v. Ag Processing, Inc., 459 N.W.2d 627, 636 (Iowa 1990) (en banc)

(citation omitted). “Despite our caselaw that indicates an employer ‘has a

duty to refrain from abusive behavior toward employees,’ we have often

found that conduct by employers and coworkers did not rise to the level of

outrageous conduct.” Smith, 851 N.W.2d at 26 (quoting Vinson, 360

N.W.2d at 118); see, e.g., Fuller v. Local Union No. 106, United Bhd. of

Carpenters, 567 N.W.2d 419, 421, 423 (Iowa 1997) (determining “in no

way could the conduct alleged here qualify” as outrageous conduct after

fellow union members filed a false police report of plaintiff’s intoxicated

driving that led to union’s violation of plaintiff’s contractual rights); Van

Baale, 550 N.W.2d at 155, 157 (holding police officer’s termination did not

amount to outrageous conduct after his supervisor recanted the

“guarantee” to continued employment if he entered guilty and nolo

contendere pleas on a domestic abuse charge instead of proceeding to trial

as initially planned); Reihmann v. Foerstner, 375 N.W.2d 677, 681 (Iowa

1985) (agreeing the record did not contain substantial evidence of

outrageous conduct when supervisor used his influence to move plaintiff’s

office to a different city).
 25

In Vinson, we determined an employer’s eight-step “campaign of

harassment” was not conduct sufficient to “[rise] to the level of extremity

essential to support a finding of outrageousness.” 360 N.W.2d at 119.

After questioning the school district’s seniority policy, the plaintiff was

singled out for “special scrutiny.” Id. The campaign included accusing the

plaintiff of falsifying time records, discharging her on the ground of

dishonesty, and reporting the incident to a prospective employer despite

“knowing the report would be so received and harm plaintiff’s chance of

being employed, and knowing that plaintiff had not acted dishonestly.” Id.

We determined a jury could find the actions as “petty and wrong, even

malicious,” but we did not believe “the conduct went beyond all possible

bounds of decency and must be regarded as atrocious and utterly

intolerable in a civilized community.” Id.

We have held certain conduct sufficiently outrageous. That was the

special circumstances of Smith, 851 N.W.2d at 28–29. There, the case

“presente[d] the confluence of several factors” that “exceeded a ‘deliberate

campaign to badger and harass’ Smith and crossed the line into

outrageous conduct.” Id. at 28 (quoting Vinson, 360 N.W.2d at 119). “The

conduct included, but also went beyond, typical bad boss behavior such

as discrimination in pay, isolation of the employee, removal of the

employee from work assignments, misrepresentations about promotions,

and even falsification of records.” Id. at 29. Although “the issue [was] a

close one,” Smith involved a striking, “unremitting psychological warfare

. . . over a substantial period of time.” Id. at 28–29. Smith’s supervisor

treated him as a mentally unstable outcast in order to cover up what

amounted to her theft from the university. Id. at 29.

Hedlund positions his case as distinct from “typical bad boss

behavior” and more akin to an “unrelenting campaign” to destroy his life
 26

and career. Specifically, Hedlund focuses on two behaviors. He first

claims defendants deliberately endangered lives when DPS arrived at his

house to place him on administrative leave. Based on our review of the

summary judgment record, we agree with the district court’s conclusion

that this behavior did not rise to the level of outrageous conduct. It is

typical practice for DPS to place an individual on administrative leave

pending a fitness-for-duty evaluation. The record indicates Paulson met

with a representative from PSB, the department of administrative services,

and the attorney general’s office to discuss appropriate actions regarding

Hedlund’s escalating behavior. Paulson and Meyers were concerned for

their own safety as well as Hedlund’s personal safety. It was determined,

therefore, the most appropriate action was administrative leave pending a

fitness-for-duty evaluation. Notably, Hedlund was placed on leave without

incident.

Hedlund also alleges his supervisors repeated known falsehoods,

regarding his threat to public safety, to Governor Branstad knowing the

Governor would broadcast the falsehoods statewide. According to

Hedlund, this led to his humiliation in front of coworkers, peers, and the

community. We are not persuaded. Even when viewed in the light most

favorable to Hedlund, this case is most similar to Vinson’s deliberate

campaign to badger and harass. The comment by the Governor stating,

“[DPS] felt for the morale and for the safety and well-being of the

Department, this was action that was necessary,” is not substantial

evidence of conduct “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.” Vinson, 360 N.W.2d at 118 (quoting Harsha v.

State Sav. Bank, 346 N.W.2d 791, 801 (Iowa 1984)).
 27

In addition, we do not believe the conduct Hedlund endured is

comparable to unremitting psychological warfare over a substantial period

of time. See Smith, 851 N.W.2d at 29 (“[T]he conduct included, but also

went beyond, typical bad boss behavior . . . . What is striking . . . [was the]

unremitting psychological warfare against Smith over a substantial period

of time.”). A jury could find certain aspects of the defendants’ actions as

petty, wrong, or even malicious. But this would not lead an average

member of the community to arouse resentment against the defendants

and to exclaim, “Outrageous!”

The district court determined the individual defendants were

entitled to summary judgment on this issue. We find no error with this

conclusion.

IV. Conclusion.

For the aforementioned reasons, the judgment of the district court

is affirmed in part and reversed in part. Specifically, we affirm the district

court’s grant of summary judgment with regard to Hedlund’s claims of age

discrimination and intentional infliction of emotional distress. We reverse

the district court’s grant of summary judgment with regard to Hedlund’s

whistleblower claim. We remand to the district court for further

proceedings.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

All justices concur except Appel, J., and Cady, C.J., and Wiggins, J.,

who concur in part and dissent in part.
 28

#18–0567, Hedlund v. State

APPEL, Justice (concurring in part and dissenting in part).

I. Introduction.

I concur in part and dissent in part. I concur in the majority’s

conclusion that a whistleblower claim is available to Hedlund under Walsh

v. Wahlert, 913 N.W.2d 517 (Iowa 2018). I also concur that the district

court properly dismissed Hedlund’s intentional infliction of emotional

distress claim.

I write on two issues. First, I dissent from the affirmance of

summary judgment on Hedlund’s civil rights claim. Second, I agree with

the majority’s result on the remedial questions regarding Iowa Code

section 70A.28(5)(a) (2014) but offer a different analysis.

II. Iowa Civil Rights Act Claim.

The majority finesses the question of whether the test announced by

the United States Supreme Court in McDonnell Douglas applies to motions

for summary judgment under the Iowa Civil Rights Act (ICRA). I would

answer the question head on.

In my view, we should expressly make clear there is no place for the

McDonnell Douglas test at the summary judgment stage for ICRA mixed-

motive cases. The proper test is the “a motivating factor” test. That is the

standard at trial. It would certainly be odd, to say the least, to apply a

standard at summary judgment that is different than the standard at trial.

In my view, deciding not to apply McDonnell Douglas at the summary

judgment stage in an action under the ICRA is an easy call and there is no

reason to allow any marginal uncertainty to exist on the issue.

Further, whatever standard we apply, our role is to act as judges,

not jurors. We do not weigh evidence on summary judgment, and all

inferences from the evidence are to be made in favor of the nonmoving
 29

party. I do not understand, for instance, how the majority can conclude

that a supervisor’s comments about Hedlund being in the twilight of his

career and inquiries about his retirement plans in the context of a

personnel discussion did not relate to age without making an inference

against Hedlund, the nonmoving party. In my view, the majority crosses

the line and usurps the jury function by making inferences adverse to the

nonmoving party and by weighing the evidence in order to affirm the

granting of the defendants’ motion for summary judgment in this case.

A. The Proper Standard at Summary Judgment on an Age

Discrimination Claim. In evaluating the age discrimination claim at trial

and at summary judgment, the proper test under the ICRA is not the

McDonnell Douglas burden-shifting/determinative-factor test. Instead, the

proper test under Iowa law is the a-motivating-factor test.

1. United States Supreme Court precedent. In McDonnell Douglas

Corp. v. Green, the United States Supreme Court announced a framework

for evaluating evidence in discrimination claims under Title VII. 411 U.S.

792, 802–05, 93 S. Ct. 1817, 1824–26 (1973). According to the framework

in McDonnell Douglas, when the plaintiff alleges she was rejected for a

position because of unlawful discrimination, the plaintiff must first show

that she was a member of a protected class, was qualified for the position,

and was rejected for the position and that the employer sought other

candidates of the plaintiff’s qualifications. See id. at 802, 93 S. Ct. at

1824. The burden of production then shifts to the employer to show a

nondiscriminatory reason for its employment action. Id. Once the

employer articulates a legitimate business reason, the plaintiff is required

to show the reason for the decision was pretextual. Id. at 804–05, 93 S. Ct.

at 1825–26.
 30

From the outset, McDonnell Douglas was flawed. It presumed that

there was only a single reason for the challenged decision. See, e.g., Fields

v. N.Y. State Office of Mental Retardation & Developmental Disabilities, 115

F.3d 116, 119 (2d Cir. 1997) (acknowledging distinction between single-

motive and mixed-motive cases). In fact, that is rarely the case. What

happens when there are several reasons for a decision, one of which is

unlawful? The plaintiff might not prove that all the reasons advanced by

the employer were pretextual, but illegal discrimination might have been

a motivating factor in the adverse employment action.

The Supreme Court considered the mixed-motive question in Price

Waterhouse v. Hopkins, 490 U.S. 228, 232, 109 S. Ct. 1775, 1781 (1989)

(plurality opinion), superseded by statute, Civil Rights Act of 1991,

Pub. L. No. 102-166, § 107, 105 Stat. 1071, 1075 (codified at 42 U.S.C.

§§ 2000e–2(m), 2000e–5(g)(2)(B) (2012)). Under Price Waterhouse, the

plaintiff has the initial burden of proving that discriminatory animus

“played a motivating part in an employment decision.” Id. at 244, 109

S. Ct. at 1787. Once that burden is met, the employer “may avoid a finding

of liability only by proving that it would have made the same decision even

if it had not allowed [the protected characteristic] to play such a role.” Id.

at 244–45, 109 S. Ct. at 1787–88 (footnote omitted).

In the controlling concurring opinion, Justice O’Connor indicated

that the burden would shift to an employer in a mixed-motive case where

the plaintiff “show[s] by direct evidence that an illegitimate criterion was a

substantial factor in the decision.” Id. at 276, 109 S. Ct. at 1804

(O’Connor, J., concurring in the judgment). In cases involving entangled

multiple motives, she explained, tort law sometimes shifts the burden of

proof on the causation issue to defendants because not doing so would

demand “the impossible” from plaintiffs. Id. at 263–64, 109 S. Ct. at 1797–
 31

98 (quoting Wex S. Malone, Ruminations on Cause-in-Fact, 9 Stan. L. Rev.

60, 67 (1956)). Justice O’Connor noted that, similarly, plaintiffs in Title VII

cases are unable to untangle the threads of multiple causation. Id. at 273,

109 S. Ct. at 1802–03.

At this point, Congress intervened. The Civil Rights Act of 1991

codified the a-motivating-factor standard and provided that liability is

established if a plaintiff proves that a protected characteristic “was a

motivating factor for any employment practice, even though other factors

also motivated the practice.” 42 U.S.C. § 2000e–2(m). The legislation also

changed the import of the same-decision defense that the Price Waterhouse

Court announced. Id. § 2000e–5(g)(2)(B).

The approach to Title VII claims developed in Price Waterhouse and

modified in the Civil Rights Act of 1991 is commonly known as the mixed-

motive approach. This is because it recognizes that an employer may have

had both an impermissible motive and a permissible motive for an

employment decision. This is a contrast with the pretext or single-motive

approach stemming from McDonnell Douglas.

In the wake of congressional action, the question arose whether

Justice O’Connor’s requirement in Price Waterhouse of direct evidence to

trigger the a-motivating-factor test had continued vitality. The Supreme

Court addressed the issue in Desert Palace, Inc. v. Costa, 539 U.S. 90, 98–

101, 123 S. Ct. 2148, 2153–55 (2003). In Desert Palace, the Supreme

Court rejected the distinction between direct and indirect evidence. Id. at

99–100, 123 S. Ct. at 2154. It concluded that in order to obtain a mixed-

motive jury instruction, “a plaintiff need only present sufficient evidence

for a reasonable jury to conclude, by a preponderance of the evidence, that

‘[a protected characteristic] was a motivating factor for any employment

practice.’ ” Id. at 101, 123 S. Ct. at 2155 (quoting 42 U.S.C. § 2000e–2(m)).
 32

Desert Palace did not expressly rule that McDonnell Douglas was no longer

applicable at summary judgment in a mixed-motive case, but because it

obliterated the distinction between direct and indirect evidence embraced

in Price Waterhouse, it logically follows that the a-motivating-factor test

now applies in all mixed-motive cases.

2. Federal precedent since Desert Palace. Since Desert Palace, the

federal circuit courts have addressed the question of the proper test for

Title VII claims in the context of a motion for summary judgment. The

federal circuits employ four different approaches to summary judgment on

mixed-motive claims like Hedlund’s. Application of McDonnell Douglas at

summary judgment is not consistent with the approach taken under

federal law in all but one of the circuits.

The United States Courts of Appeals for the Sixth and Eleventh

Circuits have adopted a two-pronged test for summary judgment on a

mixed-motive discrimination claim. Their test utilizes the a-motivating-

factor standard.

[T]o survive a defendant’s motion for summary judgment, a
Title VII plaintiff asserting a mixed-motive claim need only
produce evidence sufficient to convince a jury that: (1) the
defendant took an adverse employment action against the
plaintiff; and (2) “race, color, religion, sex, or national origin
was a motivating factor” for the defendant’s adverse
employment action.

White v. Baxter Healthcare Corp., 533 F.3d 381, 400 (6th Cir. 2008)

(quoting 42 U.S.C. § 2000e–2(m) (2000)); accord Quigg v. Thomas Cty. Sch.

Dist., 814 F.3d 1227, 1232–33 (11th Cir. 2016). “We . . . hold[] that the

McDonnell Douglas/Burdine burden-shifting framework does not apply to

the summary judgment analysis of Title VII mixed-motive claims.” White,

533 F.3d at 400.
 33

The Sixth and Eleventh Circuits explain that applying McDonnell

Douglas at summary judgment makes little sense in the context of mixed-

motive claims. McDonnell Douglas was designed, the White court notes, to

deal with single-motive cases, i.e., cases in which the plaintiff argues that

the only motive for the adverse employment action was discriminatory. Id.

at 400–01. In single-motive cases,

narrowing of the actual reasons for the adverse employment
action is necessary to determine whether there is sufficient
evidence to proceed to trial . . . because the plaintiff in such a
case must prove that the defendant’s discriminatory animus,
and not some legitimate business concern, was the ultimate
reason for the adverse employment action.

Id. at 401. But in mixed-motive cases, a plaintiff need not rebut all

potential “legitimate motivations of the defendant as long as the plaintiff

can demonstrate that an illegitimate discriminatory animus factored into

the defendant’s decision to take the adverse employment action.” Id. The

Eleventh Circuit puts a fine point on the matter:

[I]f an employee cannot rebut her employer’s proffered reasons
for an adverse action but offers evidence demonstrating that
the employer also relied on a forbidden consideration, she will
not meet her burden [under McDonnell Douglas]. Yet, this is
the exact type of employee that the mixed-motive theory of
discrimination is designed to protect. In light of this clear
incongruity between the McDonnell Douglas framework and
mixed-motive claims, it is improper to use that framework to
evaluate such [mixed-motive] claims at summary judgment.

Quigg, 814 F.3d at 1238 (citation omitted).

A second group of federal circuits—the First, Fourth, Seventh,

Ninth, and D.C. Circuits—“do not require the use of the McDonnell Douglas

framework in mixed-motive cases involving circumstantial evidence.” Id.

at 1239 & n.8 (collecting cases). In the Fourth Circuit, “[a] plaintiff can

survive a motion for summary judgment by presenting direct or

circumstantial evidence that raises a genuine issue of material fact as to
 34

whether an impressible factor such as race motivated the employer’s

adverse employment decision.” Diamond v. Colonial Life & Accident Ins.

Co., 416 F.3d 310, 318 (4th Cir. 2005). The same rule applies in the other

four circuits. McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1122 (9th Cir.

2004); Hillstrom v. Best W. TLC Hotel, 354 F.3d 27, 31 (1st Cir. 2003); see

Hossack v. Floor Covering Assocs. of Joliet, Inc., 492 F.3d 853, 860–62 (7th

Cir. 2007); Fogg v. Gonzales, 492 F.3d 447, 451 & n.* (D.C. Cir. 2007).

A third group of federal circuits—the Second, Third, Fifth, and

Tenth—while employing a modified form of McDonnell Douglas, permit a

plaintiff to survive summary judgment on a mixed-motive claim if a

protected characteristic was a motivating factor in the adverse

employment decision. See Quigg, 814 F.3d at 1238–39 (collecting cases).

In the Fifth Circuit, a Title VII plaintiff asserting a mixed-motive claim can

survive summary judgment where there is a genuine dispute “that the

defendant’s reason, while true, is only one of the reasons for its conduct,

and another ‘motivating factor’ is the plaintiff’s protected characteristic.”

Rachid v. Jack In The Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004) (quoting

Rishel v. Nationwide Mut. Ins., 297 F. Supp. 2d 854, 865 (M.D.N.C. 2003)).

In the Second Circuit, summary judgment is not appropriate where “[t]here

is sufficient evidence in the record to permit a reasonable jury to conclude

that the [employment decision] was based, at least in part, upon a[n

impermissible] motive.” Holcomb v. Iona Coll., 521 F.3d 130, 144 (2d Cir.

2008). “[A] plaintiff who . . . claims that the employer acted with mixed

motives is not required to prove that the employer’s stated reason was a

pretext.” Id. at 141–42. In the Tenth Circuit, a framework derived from

Price Waterhouse, rather than McDonnell Douglas, governs mixed-motive

claims. Fye v. Okla. Corp. Comm’n, 516 F.3d 1217, 1224–26 (10th Cir.
 35

2008); see Quigg, 814 F.3d at 1239. In the Third Circuit, McDonnell

Douglas

does not apply in a mixed-motive case in the way it does in a
pretext case because the issue in a mixed-motive case is not
whether discrimination played the dispositive role but merely
whether it played “a motivating part” in an employment
decision.

Makky v. Chertoff, 541 F.3d 205, 214 (3d Cir. 2008).

Finally, “the Eighth Circuit is alone in holding that . . . the McDonnell

Douglas approach must be applied in the present context [of summary

judgment on a mixed-motive claim of discrimination].” Quigg, 814 F.3d at

1239; see Griffith v. City of Des Moines, 387 F.3d 733, 735–36 (8th Cir.

2004).

I do not agree with the notion that federal law should do anything

more in our resolution of claims under the ICRA than offer reasoning that

we might or might not find persuasive. Here, I find the overwhelming

weight of federal authority persuasive on the point that McDonnell Douglas

is not appropriate as the test for summary judgment on mixed-motive

claims because it was not designed for such claims. It is illogical to apply

a standard designed for determining whether there was only one
motivation for an employment action to claims where the plaintiff need

only show that an impermissible motivation was among the motivations

for the action.

3. Other state precedent. Other states have also recognized that the

McDonnell Douglas framework is inappropriate for resolving claims at

summary judgment.

In Gossett v. Tractor Supply Co., the Tennessee Supreme Court

rejected application of McDonnell Douglas at summary judgment on mixed-

motive claims. 320 S.W.3d 777, 781–82 (Tenn. 2010), superseded by
 36

statute, 2011 Tenn. Pub. Acts ch. 461, § 2 (codified as amended at Tenn.

Code Ann. § 50-1-304(g) (West, Westlaw through 2019 First Reg. Sess. of

the 111th Tenn. Gen. Assemb.)), as recognized in Williams v. City of Burns,

465 S.W.3d 96, 112 n.15 (Tenn. 2015). The Gossett court explained that

“the McDonnell Douglas framework does not necessarily demonstrate that

there is no genuine issue of material fact” because, while that framework

only requires a defendant to proffer a legitimate alternative for the

discharge, “[a] legitimate reason for discharge . . . is not always mutually

exclusive of a discriminatory or retaliatory motive and thus does not

preclude the possibility that a discriminatory or retaliatory motive played

a role in the discharge decision.” Id. at 782. “Furthermore,” the Gossett

court recognized, “evidence showing a legitimate reason for discharge can

satisfy the requirements of the McDonnell Douglas framework without

tending to disprove any factual allegation by the employee.” Id.

Additionally, the Gossett court acknowledged that “the shifting burdens of

the McDonnell Douglas framework obfuscate the trial court’s summary

judgment analysis” because, “[i]nstead of demonstrating the absence of

any genuine issue of material fact, the framework focuses on the ‘sensitive

and difficult’ factual question of whether an employer’s decision to

discharge an employee was discriminatory or retaliatory.” Id. at 783

(quoting U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716,

103 S. Ct. 1478, 1482 (1983)). After Gossett, the Tennessee legislature

incorporated language into Tennessee statutes that we do not have in the

Iowa Code, namely, that the trial standard for proving discrimination

follows McDonnell Douglas. See 2011 Tenn. Pub. Acts ch. 461, § 1 (codified

at Tenn. Code Ann. § 4-21-311(e) (West, Westlaw through 2019 First Reg.

Sess. of the 111th Tenn. Gen. Assemb.)); id. § 2.
 37

In Oregon and North Dakota, the McDonnell Douglas framework is

inapplicable at summary judgment and a defendant cannot obtain

summary judgment merely by pointing to a legitimate reason for the

employment action. Heng v. Rotech Med. Corp., 688 N.W.2d 389, 401 (N.D.

2004); Williams v. Freightliner, LLC, 100 P.3d 1117, 1121–23 (Or. Ct. App.

2004); Lansford v. Georgetown Manor, Inc., 84 P.3d 1105, 1115 (Or. Ct.

App.), modified on other grounds on reh’g, 88 P.3d 305, 305 (Or. Ct. App.

2004). In North Dakota, “[t]he burden-shifting rule of McDonnell

Douglas . . . has little or no application at the summary judgment stage”

because

[b]y presenting a prima facie case of retaliatory discharge, the
employee has created a genuine issue of material fact on the
question of why she was fired, and the employer’s alleged
nonretaliatory reasons for the termination merely go to that
question of fact.

Heng, 688 N.W.2d at 401. “[T]he employer’s presentation of evidence of a

legitimate, nonretaliatory reason for its action merely creates an issue of

fact, not a basis for summary judgment dismissal of the employee’s claim.”

Id. Similarly, in Oregon, “after a plaintiff has presented evidence of

discrimination, evidence of an employer’s nondiscriminatory motive in
terminating an employee will not support summary judgment.”

Freightliner, LLC, 100 P.3d at 1123.

Likewise, in Brady v. Cumberland County, the Maine Supreme

Judicial Court held the McDonnell Douglas burden-shifting framework

inapposite to a mixed-motive claim for whistleblower retaliation. 126 A.3d

1145, 1154 (Me. 2015). “[I]n a summary judgment motion in a

[whistleblower protection act] retaliation case,” the Brady court explained,

“it is unnecessary to shift the burden of production pursuant to McDonnell

Douglas once the plaintiff . . . has presented the requisite evidence that
 38

the adverse employment action was motivated at least in part by retaliatory

intent.” Id. “[I]f the employee presents evidence of a causal connection

between protected activity and adverse employment action, then the

employee has created a record sufficient to defeat an employer’s motion

for summary judgment.” Id. at 1157. “[T]he employer’s evidence of a

lawful reason for the adverse employment action . . . merely creates a

dispute of material fact and precludes the court from granting summary

judgment to the employee.” Id.

The view that McDonnell Douglas has no continued vitality is not

universally embraced by state courts. A number of them, with little or no

analysis, have continued to apply McDonnell Douglas even after Desert

Palace. See, e.g., Serri v. Santa Clara Univ., 172 Cal. Rptr. 3d 732, 758

(Ct. App. 2014); Scrivener v. Clark Coll., 334 P.3d 541, 545–46 (Wash.

2014) (en banc).

4. Iowa precedent. In Iowa, we have evaluated civil rights claims at

the summary judgment stage under both the McDonnell Douglas and the

a-motivating-factor standards. The applicable standard has been driven

by the framework applied by the parties. 12 For instance, in Smidt v. Porter,

the plaintiff invoked McDonnell Douglas. 695 N.W.2d 9, 14 (Iowa 2005).
And “[n]either party challenge[d] the viability of the McDonnell Douglas

framework after Desert Palace.” Id. at 14 n.1. Similarly, in Jones v.

University of Iowa, the plaintiff “advanc[ed] the McDonnell Douglas

12The majority states that “Hedlund asserts the McDonnell Douglas burden-
shifting framework should be abandoned for summary judgment purposes” and
“[d]efendants contend McDonnell Douglas remains the appropriate analytical framework
at summary judgment.” But there is nothing to abandon or remain. The cases cited by
the defendants, as discussed herein, establish nothing more than the proposition that we
have applied the framework advanced by the plaintiff. Jones v. Univ. of Iowa, 836 N.W.2d
127, 147–48 (Iowa 2013); Smidt v. Porter, 695 N.W.2d 9, 14 & n.1 (Iowa 2005); see also
Nelson v. James H. Knight DDS, P.C., 834 N.W.2d 64, 67 (Iowa 2013) (applying the
a-motivating-factor standard at summary judgment). The majority does not contest that
point, and its characterization of the parties’ arguments does not change our precedent.
 39

framework for intentional discrimination.” 836 N.W.2d 127, 147 (Iowa

2013) (footnote omitted). So if Smidt and Jones stand for anything relevant

here, it is that we will apply the standard invoked by the plaintiff.

In McQuistion v. City of Clinton, we did adopt a version of McDonnell

Douglas, but the case turned on statutory interpretation of a different

provision than the one at issue in this case. 872 N.W.2d 817, 828 (Iowa

2015). In McQuistion, the plaintiff brought a pregnancy discrimination

claim under Iowa Code section 216.6(2), the provision the legislature

enacted to specifically address pregnancy discrimination. Id. at 821, 825.

We found a similarity in the statutory language with the McDonnell

Douglas framework and decided that the legislature intended McDonnell

Douglas to apply under that statutory provision. Id. at 828. The language

upon which we relied in McQuistion is wholly absent from the provision

under which Hedlund brings his claim. Compare Iowa Code § 216.6(1)(a)

(age discrimination), with id. § 216.6(2) (pregnancy discrimination). Thus,

the holding in McQuistion has nothing to do with Hedlund’s claim.

Finally, the Landals v. George A. Rolfes Co. case came before us after

a jury verdict. 454 N.W.2d 891, 892 (Iowa 1990). We reviewed the denial

of the employer’s motions for new trial and judgment notwithstanding the

verdict. Id. The instructions in Landals were not challenged on appeal,

and we considered only the sufficiency of the evidence at trial based upon

the instructions given. Id. We said, “When a case is fully tried on the

merits, ‘we focus our attention on the ultimate question presented and not

on the adequacy of a party’s showing at any particular stage of the

analysis.’ ” Id. at 893 (quoting Smith v. Goodyear Tire & Rubber Co., 895

F.2d 467, 471 (8th Cir. 1990)). Thus, Landals had nothing to do with the

proper standard on summary judgment.
 40

On the other hand, in Nelson v. James H. Knight DDS, P.C., the

plaintiff claimed that because gender was “a motivating factor” in her

discharge from employment, the district court erred in granting summary

judgment for the defense. 834 N.W.2d 64, 67 (Iowa 2013). In our analysis,

we stated, “Generally, an employer engages in unlawful sex discrimination

when the employer takes adverse employment action against an employee

and sex is a motivating factor in the employer’s decision.” Id. Later in the

opinion, we referred to the a-motivating-factor test in our analysis of the

plaintiff’s claim that summary judgment was improperly granted. Id. at

71. There is no mention at all of McDonnell Douglas in this summary

judgment case under the ICRA.

While our summary judgment cases may not uniformly reject the

application of McDonnell Douglas under the ICRA, when a defendant seeks

summary judgment in a mixed-motive case, we have removed the

underpinnings of such a rule. First, we have long and repeatedly held that

there is no difference in Iowa law between direct and circumstantial

evidence. See, e.g., State v. Tipton, 897 N.W.2d 653, 692 (Iowa 2017); State

v. Bentley, 757 N.W.2d 257, 262 (Iowa 2008); Walls v. Jacob North Printing

Co., 618 N.W.2d 282, 285 (Iowa 2000) (en banc); Schermer v. Muller, 380

N.W.2d 684, 687 (Iowa 1986); Beck v. Fleener, 376 N.W.2d 594, 597 (Iowa

1985) (en banc); State v. O’Connell, 275 N.W.2d 197, 205 (Iowa 1979)

(en banc). Thus, we long ago crossed the Desert Palace bridge rejecting

the distinction between direct and indirect evidence.

Further, in Iowa, the causation standard at trial is “a motivating

factor,” which is, in substance, the test under Price Waterhouse, 490 U.S.

at 244, 109 S. Ct. at 1787 (plurality opinion). See Hawkins v. Grinnell

Reg’l Med. Ctr., ___ N.W.2d ___, ___ (Iowa 2019) (reaffirming adoption of

Price Waterhouse a-motivating-factor standard for employment
 41

discrimination claims under the ICRA); DeBoom v. Raining Rose, Inc., 772

N.W.2d 1, 13–14 (Iowa 2009) (adopting the a-motivating-factor standard

for status-based discrimination-in-employment claims under the ICRA).13

As we clarified in Hawkins, there is no burden-shifting component

inherent in the legal test for an employment discrimination claim under

the ICRA. ___ N.W.2d at ___. This is because, under Iowa law, all defenses

must be pled and proved. Iowa R. Civ. P. 1.421(1); see Price Waterhouse,

490 U.S. at 244–45, 109 S. Ct. at 1787–88 (holding employer can avoid

finding of liability only by proving the same-decision defense); Ostad v. Or.

Health Scis. Univ., 327 F.3d 876, 884–85 (9th Cir. 2003) (characterizing

same-decision defense as an affirmative defense); Haskenhoff v. Homeland

Energy Sols., LLC, 897 N.W.2d 553, 627–28 (Iowa 2017) (majority opinion

of Appel, J., which was joined by Chief Justice Cady, and Justices Wiggins

13We apply the Price Waterhouse a-motivating-factor test in ICRA employment
discrimination cases regardless of the particular protected characteristic at issue. Thus,
for example, we would apply the a-motivating-factor test to a race- or sex-discrimination-
in-employment case as well as to an age-discrimination-in-employment case. This is
inconsistent with federal law, which does not apply the a-motivating-factor test to age-
discrimination-in-employment or retaliation-in-employment cases. See Univ. of Tex. Sw.
Med. Ctr. v. Nassar, 570 U.S. 338, 352, 133 S. Ct. 2517, 2528 (2013) (applying different
standard in federal retaliation-in-employment cases); Gross v. FBL Fin. Servs., Inc., 557
U.S. 167, 176, 129 S. Ct. 2343, 2350 (2009) (applying different standard in federal age-
discrimination-in-employment cases). Our application of the a-motivating-factor test
differs from federal law because Iowa prohibits age discrimination in employment in the
same statutory provision as it prohibits employment discrimination based on protected
traits such as race or sex, unlike the federal statutes. Compare 29 U.S.C. § 623(a) (2012)
(prohibiting age discrimination in employment), and 42 U.S.C. § 2000e–2(a) (prohibiting
discrimination in employment because of “race, color, religion, sex, or national origin”),
with Iowa Code § 216.6(1) (prohibiting discrimination in employment because of, inter
alia, age, race, or sex). Additionally, our provisions prohibiting status-based and
retaliation-based discrimination use the same language, unlike the federal statutes.
Compare 42 U.S.C. § 2000e–2(a) (status-based discrimination), and id. § 2000e–3(a)
(retaliation), with Iowa Code § 216.6(1) (status-based discrimination), and id. § 216.11(2)
(retaliation).
One exception to our general practice is pregnancy-discrimination-in-employment
cases. See McQuistion, 872 N.W.2d at 828. But as discussed above, this exception is
due to the different language in the ICRA’s pregnancy-discrimination-in-employment
provision. Id.
 42

and Hecht) (same). Further, nothing in the ICRA imposes a burden-

shifting framework, unlike the Federal Civil Rights Act, which codified

such a framework. See 42 U.S.C. § 2000e–5(g)(2) (2012); Univ. of Tex. Sw.

Med. Ctr. v. Nassar, 570 U.S. 338, 349, 133 S. Ct. 2517, 2526 (2013)

(acknowledging codification of burden-shifting framework).

Thus, to establish employment discrimination under the ICRA at

trial, the plaintiff must prove by a preponderance of the evidence that he

or she was subjected to an adverse employment action because of his or

her protected characteristic. See Hawkins, ___ N.W.2d at ___. However,

the plaintiff cannot recover damages for the employer’s violation of the

ICRA if the employer successfully pleads and proves the same-decision

affirmative defense. Id.

Having established the a-motivating-factor test as the proper trial

standard, it follows that the same standard should apply in a motion for

summary judgment on the same claim. At the summary judgment stage

of the proceeding, we do not weed out claims by inventing a new, different

standard than that which would be applicable at trial. See, e.g., Stevens

v. Iowa Newspapers, Inc., 728 N.W.2d 823, 830 (Iowa 2007) (noting that

summary judgment must be decided by reference to the evidentiary

standard at trial); Bitner v. Ottumwa Cmty. Sch. Dist., 549 N.W.2d 295,

300 (Iowa 1996) (same); Hike v. Hall, 427 N.W.2d 158, 159 (Iowa 1988)

(same); Junkins v. Branstad, 421 N.W.2d 130, 132 (Iowa 1988) (en banc)

(same); Kapadia v. Preferred Risk Mut. Ins., 418 N.W.2d 848, 849–50 (Iowa

1988) (same); Behr v. Meredith Corp., 414 N.W.2d 339, 341 (Iowa 1987)

(same) (en banc). The proper inquiry is “whether a reasonable jury, faced

with the evidence presented, could return a verdict for the nonmoving

party.” Bitner, 549 N.W.2d at 300; accord Clinkscales v. Nelson Sec., Inc.,

697 N.W.2d 836, 841 (Iowa 2005) (per curiam). Where the record taken
 43

as a whole could lead a rational tier of fact to find for the nonmoving party,

there is a genuine issue for trial. Clinkscales, 697 N.W.2d at 841; Bitner,

549 N.W.2d at 300. The United States Supreme Court explains,

Whether a jury could reasonably find for either party . . .
cannot be defined except by the criteria governing what
evidence would enable the jury to find for either the plaintiff
or the defendant: It makes no sense to say that a jury could
reasonably find for either party without some benchmark as
to what standards govern its deliberations and within what
boundaries its ultimate decision must fall, and these
standards and boundaries are in fact provided by the
applicable evidentiary standards.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254–55, 106 S. Ct. 2505,

2513 (1986).

Thus, the substantive evidentiary standard for whether a jury

verdict can be sustained must be the same standard at the motion for

summary judgment stage of a proceeding. The only reason for a higher or

different standard at the summary judgment stage would be to weed out

claims that a rational jury could find meritorious. There is no basis for

showing such distrust of juries or hostility toward civil rights actions and

empowering judges to prevent potentially meritorious claims from going to

trial. See, e.g., Clinkscales, 697 N.W.2d at 841 (“Mere skepticism of a

plaintiff’s claim is not a sufficient reason to prevent a jury from hearing

the merits of a case.”). Indeed, imposing a higher or different standard at

summary judgment than would be applied at trial raises severe issues

regarding the right to a jury trial under the State and Federal

Constitutions.

Consequently, the analysis on a defendant-employer’s motion for

summary judgment on the plaintiff’s age-discrimination-in-employment

claim under the ICRA focuses on whether there is a genuine issue of

material fact that the plaintiff’s age was a motivating factor in the adverse
 44

employment action. This summary judgment analysis does not, as the

district court in this case thought, involve any burden shifting that

requires the employer to articulate a legitimate, nondiscriminatory reason

for the decision or the plaintiff to then “present evidence sufficient to raise

a question of material fact as to whether [the defendants’] proffered reason

was pretextual and to create a reasonable inference that [the protected

characteristic] was a determining factor in the adverse employment

action.”

Ordinarily, “[i]f we find an incorrect legal standard was applied, we

remand for new findings and application of the correct standard.” State v.

Robinson, 506 N.W.2d 769, 770–71 (Iowa 1993); see Papillon v. Jones, 892

N.W.2d 763, 773 (Iowa 2017). But in light of the majority’s affirmance of

summary judgment, I proceed to consider the merits of whether the

defendants were entitled to summary judgment on Hedlund’s age

discrimination claim under the proper framework.

C. Discussion of Summary Judgment. I begin with a brief review

of the generally applicable rules related to motions for summary judgment.

“To obtain summary judgment, ‘the moving party must affirmatively

establish the existence of undisputed facts entitling that party to a

particular result under controlling law.’ ” K & W Elec., Inc. v. State, 712

N.W.2d 107, 112 (Iowa 2006) (quoting Griglione v. Martin, 525 N.W.2d 810,

813 (Iowa 1994), overruled on other grounds by Winger v. CM Holdings,

L.L.C., 881 N.W.2d 433, 448 (Iowa 2016)). The burden of showing

undisputed facts entitling the moving party to summary judgment rests

with the moving party. Castro v. State, 795 N.W.2d 789, 792 (Iowa 2011).

A court examining the propriety of summary judgment must “view

the entire record in the light most favorable to the nonmoving party.” Bass

v. J.C. Penney Co., 880 N.W.2d 751, 755 (Iowa 2016). The court must also
 45

indulge “on behalf of the nonmoving party every legitimate inference

reasonably deduced from the record,” Bagelmann v. First Nat’l Bank, 823

N.W.2d 18, 20 (Iowa 2012) (quoting Van Fossen v. MidAm. Energy Co., 777

N.W.2d 689, 692 (Iowa 2009)), “in an effort to ascertain the existence of a

fact question,” Crippen v. City of Cedar Rapids, 618 N.W.2d 562, 565 (Iowa

2000) (en banc). “Even if the facts are undisputed, summary judgment is

not proper if reasonable minds could draw different inferences from them

and thereby reach different conclusions.” Banwart v. 50th St. Sports,

L.L.C., 910 N.W.2d 540, 544–45 (Iowa 2018) (quoting Clinkscales, 697

N.W.2d at 841).

“Credibility determinations, the weighing of the evidence, and the

drawing of legitimate inferences from the facts” are functions for the jury,

not a judge ruling on a summary judgment motion. Carr v. Bankers Tr.

Co., 546 N.W.2d 901, 905 (Iowa 1996) (quoting Anderson, 477 U.S. at 255,

106 S. Ct. at 2513). In ruling “[o]n a motion for summary judgment, the

court does not weigh the evidence. Instead, the court inquires whether a

reasonable jury, faced with the evidence presented, could return a verdict

for the nonmoving party.” Bitner, 549 N.W.2d at 300; accord Clinkscales,

697 N.W.2d at 841.

Further, discrimination cases often involve questions of intent and

causation. Both these elements are traditionally not amenable to

summary judgment. Thompson v. Kaczinski, 774 N.W.2d 829, 836 (Iowa

2009) (causation); Hoefer v. Wis. Educ. Ass’n Ins. Tr., 470 N.W.2d 336, 338

(Iowa 1991) (en banc) (motive and intent). See generally Sherwood v.

Nissen, 179 N.W.2d 336, 339 (Iowa 1970) (“Some ultimate facts lend

themselves more readily to categorical proof than others. A plaintiff suing

on a note is usually in a considerably different position than a plaintiff

suing for negligence.”). Thus,
 46
[a]s a general matter, the plaintiff in an employment
discrimination action need produce very little evidence in
order to overcome an employer’s motion for summary
judgment. This is because “the ultimate question is one that
can only be resolved through a searching inquiry—one that is
most appropriately conducted by a factfinder, upon a full
record.”

Chuang v. Univ. of Calif. Davis, Bd. of Trs., 225 F.3d 1115, 1124 (9th Cir.
2000) (quoting Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406, 1410 (9th

Cir. 1996)).

Following the applicable rules of not making credibility

determinations, not weighing the evidence, and drawing all legitimate

inferences in favor of the nonmoving party, I conclude there is a genuine

issue of material fact that Hedlund’s age was a motivating factor in his

discharge. “A motivating factor is one that helped compel the decision,”

Haskenhoff, 897 N.W.2d at 602 (Cady, C.J., concurring in part and

dissenting in part), or that “played a part” or “a role” in the employer’s

decision, e.g., Boyd v. Ill. State Police, 384 F.3d 888, 895 (7th Cir. 2004)

(approving “played a part or a role” language); Model Civil Jury

Instructions for the District Courts of the Eighth Circuit 5.21, 5.40 (2018);

see DeBoom, 772 N.W.2d at 13 (approving “played a part” language); see

also Estes v. Dick Smith Ford, Inc., 856 F.2d 1097, 1101 (8th Cir. 1988)

(“[A]n employer violates Title VII whenever an unlawful motive has played

some part in an adverse employment decision, even when the employer

was also motivated by lawful considerations which would have dictated

the same decision.” (Emphasis added.)), abrogated on other grounds by

Price Waterhouse, 490 U.S. at 241–42, 109 S. Ct. at 1786, as recognized

in Dindinger v. Allsteel, Inc., 853 F.3d 414, 424–25 (8th Cir. 2017). It is a

factor that “moves” or “pushes” the defendant toward the challenged

decision. See, e.g., Price Waterhouse, 490 U.S. at 241, 190 S. Ct. at 1786

(providing illustration of “[s]uppose two physical forces act upon and move
 47

an object” (emphasis added)); Hasan v. U.S. Dep’t of Labor, 400 F.3d 1001,

1006 (7th Cir. 2005) (“A motivating factor is a factor that weighs in the

defendant’s decision to take the action complained of—in other words, it

is a consideration present to his mind that favors, that pushes him toward,

the action.” (Emphasis added.)). It has also been defined as a factor the

employer “relied upon” in reaching the decision. Price Waterhouse, 490

U.S. at 241–42, 109 S. Ct. at 1786.

But, importantly, a motivating factor is not necessarily the reason

for the decision. 14 DeBoom, 772 N.W.2d at 13 (noting plaintiff in a

discrimination case need only demonstrate that “his or her status as a

member of a protected class was a [not the] determining factor in the

decision to terminate employment”); accord Price Waterhouse, 490 U.S. at

250, 109 S. Ct. at 1790 (“In saying that gender played a motivating part in

an employment decision, we mean that, if we asked the employer at the

moment of the decision what its reasons were and if we received a truthful

response, one of those reasons would be that the applicant or employee

was a woman.” (Emphasis added.)); Hasan, 400 F.3d at 1006 (“[A

motivating factor] is a, not necessarily the, reason that [the employer]

takes the action.”); Boyd, 384 F.3d at 895 (“[T]here is a difference between

a motivating factor, and a single factor that is the precipitating force (one

definition of catalyst) for an action.”). Furthermore, “[i]ts precise weight in

[the employer’s] decision is not important.” Haskenhoff, 897 N.W.2d at

602 (quoting Hasan, 400 F.3d at 1006).

Hedlund offered evidence that comments arguably related to his age

were made by a manager prior to his ultimate termination. First, he stated

14The majority “affirm[s] the district court’s determination that plaintiff failed to
present sufficient evidence from which a reasonable jury could infer age discrimination
was the real reason for his termination.” But this misunderstands Hedlund’s claim,
which, as he explains, seeks “to prove that age was a motivating factor not the motivating
factor.”
 48

that Meyers, his direct supervisor, made two or three references to

Hedlund being “in the twilight of his career” during a February 15, 2013

meeting. The purpose of that meeting was to provide Hedlund with verbal

counseling regarding his email communication, specifically with respect to

Hedlund’s February 12, 2013 email to Meyers wherein he voiced his

concerns with some of Meyers’s management tactics. Thus, Hedlund’s

proximity to retirement from the department of public safety (DPS) was

irrelevant. 15 Later that month, Meyers conducted a phone call with

Hedlund and another employee and repeatedly asked them when they

were going to retire. These comments were made by Meyers, Hedlund’s

immediate supervisor, not some coemployee. Cf. Santiago-Ramos v.

Centennial P.R. Wireless Co., 217 F.3d 46, 55 (1st Cir. 2000) (“Typically,

statements made by ‘one who neither makes nor influences [a] challenged

personnel decision are not probative in an employment discrimination

case.’ ” (Alteration in original.) (quoting Medina-Munoz v. R.J. Reynolds

Tobacco Co., 896 F.2d 5, 10 (1st Cir. 1990))). And the remarks were part

of the ongoing investigatory and disciplinary process that led to Hedlund’s

15The defendants contend that Meyers made the comments in the context of trying
to explain to Hedlund that “he [Meyers] didn’t want to have issues with [Hedlund] because
[Hedlund] was in the twilight of [his] career” and, therefore, the comments’ context
demonstrates they were neutral. But that is not the standard for an age-discrimination-
in-employment case in Iowa. The standard is whether we can legitimately infer that the
comments about an employee being in the twilight of his or her career indicate age was
a motivating factor in the discharge decision.
Here, Meyers indicated Hedlund’s age and proximity to retirement were part of his
decision on how to handle any perceived issues with Hedlund’s email communication. In
essence, Meyers admits that age played a role in his decision as Hedlund’s supervisor. If
age played a role in at least one of Meyers’s supervisory decisions, even though age was
an otherwise irrelevant factor for such a decision, then it is reasonable to infer age played
an improper role in other supervisory actions taken by Meyers. See Alphin v. Sears,
Roebuck & Co., 940 F.2d 1497, 1498–99, 1500–01 (11th Cir. 1991) (finding remark by
supervisor to plaintiff that he had “been around too long and [was] too old and [was]
making too much money” immediately after a corrective interview was circumstantial
evidence of age discrimination).
 49

termination in July of 2013. See, e.g., Leonard v. Twin Towers, 6 F. App’x

223, 230 (6th Cir. 2001) (“[W]e must carefully examine the nature of the

inquiries and the context in which that inquiry was made.”).

The district court characterized Meyers’s comments as “stray

comments.” 16 There are a number of problems with this conclusory label.

The remarks here were made by a manager during the process that

ultimately led to Hedlund’s termination. Cf. Price Waterhouse, 490 U.S. at

277, 109 S. Ct. at 1804–05 (O’Connor, J., concurring in the judgment)

(noting stray comments are those made by nondecisionmakers or “by

decisionmakers unrelated to the decisional process itself”). The comments

were not watercooler talk or lunch room chatter with coemployees who had

a friendly interest in Hedlund’s plans. Nor were they made for a legitimate

business purpose, such as planning for the future. See, e.g., Killingsworth

v. State Farm Mut. Auto. Ins., 254 F. App’x 634, 637 (9th Cir. 2007) (finding,

based on the facts of the particular case, that the employer’s inquiries into

16The “stray comments” or “stray remarks doctrine” arose from Justice O’Connor’s

concurring opinion in Price Waterhouse. See generally, e.g., Diaz v. Jiten Hotel Mgmt.,
Inc., 762 F. Supp. 2d 319, 333–38 (D. Mass. 2011); 1 Merrick T. Rossein, Employment
Discrimination Law and Litigation § 2:16.10 (2018), Westlaw EMPLL; Kerri Lynn Stone,
Taking in Strays: A Critique of the Stray Comment Doctrine in Employment Discrimination
Law, 77 Mo. L. Rev. 149, 149–73 (2012) [hereinafter Stone]. In her Price Waterhouse
concurrence, Justice O’Connor noted that “statements by nondecisionmakers, or
statements by decisionmakers unrelated to the decisional process itself” cannot
constitute direct evidence of discrimination for purposes of a mixed-motive analysis. Price
Waterhouse, 490 U.S. at 277, 109 S. Ct. at 1804–05 (O’Connor, J., concurring in the
judgment).
However, the continued validity, scope, and breadth of the doctrine has been
widely criticized. See, e.g., Russell v. McKinney Hosp. Venture, 235 F.3d 219, 229 (5th
Cir. 2000) (“[T]he ‘stray remark’ jurisprudence is itself inconsistent with the deference
appellate courts traditionally allow juries regarding their view of the evidence presented
and so should be narrowly cabined.” (quoting Vance v. Union Planters Corp., 209 F.3d
438, 442 n.4 (5th Cir. 2000))); Diaz, 762 F. Supp. 2d at 333–34 (noting the doctrine
“began as a debate about what comprised ‘direct evidence’ in mixed-motive cases (a test
no longer required even in mixed motive cases)”); Stone, 77 Mo. L. Rev. at 152. And the
Supreme Court itself has declined to apply the doctrine in an overly broad or strict sense.
See, e.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 152–54, 120 S. Ct.
2097, 2111–12 (2000).
 50

its employees’ retirement plans were part of a legitimate business interest

in planning for its own future). The comments were made as part of a

management process directly related to Hedlund’s job and were made by

the manager who participated in the termination decision. See Underwood

v. Monroe Mfg., L.L.C., 434 F. Supp. 2d 680, 689 (S.D. Iowa 2006) (“The

speaker [of the comments or inquiries] should have a sufficient connection

to the decisionmaking process.”). Although the ultimate decision to

terminate was made by Paulson, Meyers had input on the decision. See,

e.g., Hunt v. City of Markham, 219 F.3d 649, 652–53 (7th Cir. 2000) (noting

when those who have input into the adverse employment decision express

discriminatory feelings around the relevant time of the decision, “then it

may be possible to infer that the decision makers were influenced by those

feelings in making their decision”).

The federal caselaw indicates that “repeated,” “unnecessary,” or

“excessive” inquiries into an employee’s retirement plans may be relevant

to an age discrimination claim. See, e.g., Cox v. Dubuque Bank & Tr. Co.,

163 F.3d 492, 498 (8th Cir. 1998) (“unnecessary” and “excessive”); Guthrie

v. J.C. Penney Co., 803 F.2d 202, 208 (5th Cir. 1986) (“repeated” and

“unnecessary”). At least one case posits that

[i]f a manager makes an ageist remark, it could well be a
window on his soul, a reflection of his animus, or arguably,
just a slip of the tongue . . . . The inference to be given the
remark should not be made by judges, particularly judges who
have not heard the entire story.

Diaz v. Jiten Hotel Mgmt., Inc., 762 F. Supp. 2d 319, 323 (D. Mass. 2011);

accord Ryder v. Westinghouse Elec. Corp., 128 F.3d 128, 132–33 (3d Cir.

1997) (acknowledging a corporate executive’s stray comment can be

probative of informal managerial attitudes, which may be circumstantial

evidence of discrimination); cf. Price Waterhouse, 490 U.S. at 251, 109
 51

S. Ct. at 1791 (plurality opinion) (“[S]tereotyped remarks can certainly be

evidence that gender played a part [in the employer’s decision].”); Mullen

v. Princess Anne Volunteer Fire Co., 853 F.2d 1130, 1133 (4th Cir. 1988)

(noting the use of racially offensive slurs in the employment context is

relevant to whether “a particular decision was made with racial animus”).

Here, there were comments from which age discrimination can

reasonably be inferred. See Phillips v. Covenant Clinic, 625 N.W.2d 714,

717–18 (Iowa 2001) (en banc) (“In ruling on a summary judgment

motion, . . . [t]he court must also consider on behalf of the nonmoving

party every legitimate inference that can be reasonably deduced from the

record.”). Comments that an employee is in the twilight of his or her career

have been found to support an age discrimination claim. Forman v. Small,

271 F.3d 285, 293 (D.C. Cir. 2001); Theil v. West Mifflin Borough,

No. 2:05-cv-1516, 2007 WL 1087773, at *2 (W.D. Pa. Apr. 9, 2007)

(characterizing statements that the plaintiff was “in the twilight of [his]

career” as “textbook evidence of direct discrimination under Price

Waterhouse” (emphasis omitted)); see Jelinek v. Abbott Labs., 843 N.E.2d

807, 814, 817–18 (Ohio Ct. App. 2005) (suggesting a statement that the

fifty-three-year-old employee was in “twilight of his career” in a job

evaluation could be evidence of age discrimination). And inquiry regarding

retirement obviously has potential relevance for an age discrimination

claim. See, e.g., Leonard, 6 F. App’x at 230 (“[W]e recognize that not all

inquiries about retirement are ‘friendly’ and that repeated and unwelcome

inquiries may certainly be relevant to a showing of age discrimination. . . .

‘[T]he courts must carefully evaluate factors affecting the statement’s

probative value, such as the declarant’s position in the corporate

hierarchy, the purpose and content of the statement, and the temporal

connection between the statement and the challenged employment
 52

action[.]’ ” (First and third alterations in original.) (quoting Ercegovich v.

Goodyear Tire & Rubber Co., 154 F.3d 344, 357 (6th Cir. 1998))).

Hedlund presented other evidence of age discrimination. He was

fifty-four at the time of termination while his successor was forty-five. This

nine-year age difference is circumstantially probative of age

discrimination. See, e.g., Smith v. City of Allentown, 589 F.3d 684, 689

(3d Cir. 2009). Under the Federal Age Discrimination in Employment Act

(ADEA), one element of an age discrimination claim is “that the plaintiff

was ultimately replaced by another employee who was sufficiently

younger.” Id.; cf. Faulkner v. Douglas County, 906 F.3d 728, 734 (8th Cir.

2018) (stating an element of a Federal ADEA claim is that “substantially

younger, similarly situated employees were treated more favorably”). The

federal courts have stated, “[T]o satisfy the sufficiently younger standard,

‘there is no particular age difference that must be shown.’ ” Monaco v. Am.

Gen. Assurance Co., 359 F.3d 296, 307 (3d Cir. 2004) (quoting Showalter

v. Univ. of Pittsburgh Med. Ctr., 190 F.3d 231, 236 (3d Cir. 1999)). Thus,

courts have held that four-, five-, eight-, nine-, ten-, fourteen-, and sixteen-

year age differences satisfied the sufficiently younger standard. E.g.,

Showalter, 190 F.3d at 236 (eight- and sixteen-year age difference);

Sempier v. Johnson & Higgins, 45 F.3d 724, 729–30 (3d Cir. 1995)

(temporary replacement was over ten years younger and permanent

replacement was four years younger); Douglas v. Anderson, 656 F.2d 528,

533 (9th Cir. 1981) (five-year age difference); Cridland v. Kmart Corp., 929

F. Supp. 2d 377, 385 (E.D. Pa. 2013) (nine- and fourteen-year age

differences); see O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308,

312–13, 116 S. Ct. 1307, 1310 (1996) (suggesting replacement would be

sufficiently younger if there was a sixteen-year age difference). Although

there is no requirement that the plaintiff was replaced by someone
 53

sufficiently younger under the ICRA, the federal standard and caselaw

suggest age discrepancy between the plaintiff and his or her replacement

is indicative of age discrimination.

Finally, Hedlund claims that in the selection of his successor, there

was evidence of age discrimination. The person ultimately hired was forty-

five years in age while other applicants were somewhat older. Hedlund

offered evidence suggesting that the older applicants were scored and

considered less favorably than the younger applicants. See Forman, 271

F.3d at 292 (noting evidence that people under a certain age had a higher

rate of promotion than those over a certain age was relevant to an age

discrimination claim); Guthrie, 803 F.2d at 208 (finding the scoring

discrepancies between the plaintiff and younger employees for the same

problems was probative of discrimination); cf. Faulkner, 906 F.3d at 734

(stating an element of a Federal ADEA claim is that “substantially younger,

similarly situated employees were treated more favorably”). Considered in

isolation, this evidence would have limited probative value; however, when

considered in context with Hedlund’s other circumstantial evidence of age

discrimination, this correlation has greater probative value. Cf. Leonard,

6 F. App’x at 230 (“[W]e do not view each discriminatory remark in

isolation, but are mindful that the remarks buttress one another as well

as any other pretextual evidence supporting an inference of discriminatory

animus.” (quoting Ercegovich, 154 F.3d at 356)).

Yet, on balance, we should trust juries to sort out factual disputes.

See, e.g., Mora v. Jackson Mem’l Found., Inc., 597 F.3d 1201, 1204 (11th

Cir. 2010) (per curiam) (denying summary judgment where a reasonable

juror could accept that the employer made the “discriminatory-sounding

remarks” and “[t]he resolution of th[e] case depend[ed] on whose account

of the pertinent conversations a jury would credit”); Merkle v. Upper Dublin
 54

Sch. Dist., 211 F.3d 782, 795 (3d Cir. 2000) (“Where a reasonable inference

can be drawn that an employee’s [engagement in a protected activity] was

at least one factor considered by an employer in deciding whether to take

action against the employee, the question of whether the [engagement in

the protected activity] was a motivating factor in that determination is best

left to the jury.”); Heiat v. E. Mont. Coll., 912 P.2d 787, 792 (Mont. 1996)

(plurality opinion) (“The District Court determined that although Nafisseh

had established a prima facie case of sex discrimination, EMC had

established a legitimate nondiscriminatory reason for the salary disparity

between Abbas and Nafisseh. The District Court determined that the

differences in the salaries were based on factors other than sex. However,

in making this determination, the District Court adjudicated the disputed

issue of material fact as to the reason for the differences in the salaries. . . .

[T]his factual determination of motive or intent is precisely the reason that

summary judgment is generally inappropriate in discrimination cases.

Where different ultimate inferences may be drawn from the evidence

presented by the parties, the case is not one for summary judgment.”).

In my view, there is enough here—the hiring of a younger person,

the correlation evidence of less favorable consideration the older the

applicant, and comments by a person in the decisionmaking loop—to

survive summary judgment. See Ryder, 128 F.3d at 133 (noting it is for

the factfinder to decide how much weight should be given to a corporate

executive’s stray comment as circumstantial evidence of age

discrimination); Guthrie, 803 F.2d at 208 (deferring to the jury’s credibility

determinations of testimony evidence). 17

17Further, even under the McDonnell Douglas standard, I would find Hedlund’s
age discrimination claim survives summary judgment. Under the McDonnell Douglas
framework, the plaintiff must first establish a prima facie case of discrimination. Reeves,
530 U.S. at 142, 120 S. Ct. at 2106. Thus, Hedlund must show (1) he was a member of
 55

In employment discrimination cases, I think it is important that

appellate judges not act as superjurors. See generally Sandra F. Sperino

& Suja A. Thomas, Unequal: How America’s Courts Undermine

Discrimination Law at 19–23 (2017). There is rarely documentary evidence

or other blatant evidence available showing intentional discrimination. As

a result, a number of courts have called for an added measure of “rigor,”

a class protected by the ICRA (i.e., an employee who cannot be discriminated against in
his employment because of his age), (2) he was otherwise qualified for his position, and
(3) his termination occurred under circumstances giving rise to an inference of
discrimination. See Iowa Code § 216.6(1); Farmland Foods, Inc. v. Dubuque Human Rights
Comm’n, 672 N.W.2d 733, 741 n.1 (Iowa 2003) (identifying three basic elements of a
prima facie case of discrimination in employment); Smidt, 695 N.W.2d at 14 (identifying
three prima facie case elements for pregnancy discrimination in employment under the
ICRA); cf. Reeves, 530 U.S. at 142, 120 S. Ct. at 2106 (identifying similar prima facie case
elements for a claim under the Federal ADEA). Hedlund met this initial, minimal burden
of production. See Reeves, 530 U.S. at 142, 120 S. Ct. at 2106 (indicating the McDonnell
Douglas standard is a test for the burden of production, not a burden of persuasion);
Smidt, 695 N.W.2d at 14–15 (noting the prima facie case showing is a “minimal
requirement”)
Under McDonnell Douglas, the burden of production then shifts to the defendants
to provide evidence showing Hedlund was terminated for a legitimate, nondiscriminatory
reason. See Reeves, 530 U.S. at 142, 120 S. Ct. at 2106; Smidt, 695 N.W.2d at 15. “This
burden is one of production, not persuasion; it ‘can involve no credibility assessment.’ ”
Reeves, 530 U.S. at 142, 120 S. Ct. at 2106 (quoting St. Mary’s Honor Ctr. v. Hicks, 509
U.S. 502, 509, 133 S. Ct. 2742, 2748 (1993)). The defendants met this burden by offering
evidence that Hedlund was terminated because of his poor performance and demeanor.
Finally, under McDonnell Douglas, the burden shifts back to Hedlund to “show the
employer’s reason was pretextual and that unlawful discrimination was the real reason
for the termination.” Smidt, 695 N.W.2d at 15; see Reeves, 530 U.S. at 142–43, 120 S. Ct.
at 2106. At this point, “[t]he question, after all, is simply whether [Hedlund] has
introduced sufficient admissible evidence from which a rational trier of fact could find
[the defendants’] alleged reasons for [his] termination were false, and intentional
discrimination was the real reason.” Smidt, 695 N.W.2d at 15. I believe a rational trier
of fact could find the defendants proffered reasons were pretextual based on the same
circumstantial evidence that supports a finding that Hedlund’s age was a motivating
factor in the defendants’ decision: Meyers’s irrelevant and unnecessary comments on
Hedlund being in the twilight of his career and inquiries into when Hedlund was planning
to retire, the nine-year age difference between Hedlund and his successor, and the
correlation of less favorable consideration of the older applicants for Hedlund’s position.
See Desert Palace, 539 U.S. at 98–102, 123 S. Ct. at 2153–55 (stating direct evidence of
discrimination is not required and explaining why). Therefore, even under the McDonnell
Douglas standard, I would conclude Hedlund has met his burden of production to survive
summary judgment.
 56

“caution,” or “special caution” in ruling on summary judgment in

discrimination cases. See Gallo v. Prudential Residential Servs., Ltd.

P’ship, 22 F.3d 1219, 1224 (2d Cir. 1994); McCoy v. WGN Cont’l Broad.

Co., 957 F.2d 368, 370–71 (7th Cir. 1992); Hayes v. Shalala, 902 F. Supp.

259, 263 (D.D.C. 1995) (“Summary judgment in discrimination cases must

be approached with special caution and the Court ‘must be extra-careful

to view all the evidence in the light most favorable’ to plaintiff.” (quoting

Ross v. Runyon, 859 F. Supp. 15, 22 (D.D.C. 1994))).

Yet, as has been repeatedly noted in the literature, courts often are

very aggressive in granting summary judgment in civil rights cases.

Theresa M. Beiner, Let the Jury Decide: The Gap Between What Judges and

Reasonable People Believe Is Sexually Harassing, 75 S. Cal. L. Rev. 791,

846 (2002) (“Courts often judge harassment incorrectly, granting

summary judgment or judgment as a matter of law in questionable cases

given what social science tells about people’s perceptions of harassment.”);

Ann C. McGinley, Credulous Courts and the Tortured Trilogy: The Improper

Use of Summary Judgment in Title VII and ADEA Cases, 34 B.C. L. Rev.

203, 255–56 (1993) (concluding too many courts “weigh evidence, draw

inferences in favor of the defendant when it moves for summary judgment,

assess witness credibility and require plaintiffs to prove their cases at the

summary judgment stage”); Elizabeth M. Schneider, The Dangers of

Summary Judgment: Gender and Federal Civil Litigation, 59 Rutgers L. Rev.

705, 775–76 (2007) (noting the challenge of keeping summary judgment

within proper bounds in gender discrimination cases); Suja A. Thomas,

Summary Judgment and the Reasonable Jury Standard: A Proxy for a

Judge’s Own View of the Sufficiency of the Evidence?, 97 Judicature 222,

227 (2014) (“[J]udges may fall prey to their own opinions of evidence upon

motions for summary judgment . . . .”). The refusal of courts to allow civil
 57

rights cases to proceed to trial has so frustrated one Iowa jurist with four

decades of experience that he has called for the abolition of motions for

summary judgment altogether. Mark W. Bennett, Essay, From the “No

Spittin’, No Cussin’ and No Summary Judgment” Days of Employment

Discrimination Litigation to the “Defendant’s Summary Judgment Affirmed

Without Comment” Days: One Judge’s Four-Decade Perspective, 57 N.Y. L.

Sch. L. Rev. 685, 715–16 (2012–2013).

We should approach summary judgment in this case, and in every

case, with great caution. We should carefully examine the facts and ask

ourselves with self-critical rigor and discipline the following: Have we

refused to engage in credibility determinations? Have we refused to weigh

the evidence? Have we given every legitimate inference of the meaning of

evidence to the nonmoving party? And then we must apply the evidence

against the relatively low a-motivating-factor standard. Applying these

principles in this case, I believe that the defendants’ motion for summary

judgment should have been denied.

D. Defendants’ Check-the-Box Argument. The defendants also

argue they are entitled to summary judgment on Hedlund’s age

discrimination claim because Hedlund failed to exhaust his administrative

remedies. Specifically, they contend Hedlund did not give notice of all of

his civil rights claims in his Iowa Civil Rights Commission (ICRC)

complaint because, on the complaint form, he checked the boxes for

“Disciplined/Suspended” and “Terminated” but not the box for “Forced to

Quit/Retire.” Because the majority concludes Hedlund did not present

sufficient evidence to survive summary judgment, it does not need to

address this argument. However, I write to identify the fallacies of the

defendants’ claim.
 58

On July 17, 2013, Hedlund received a document with the heading

“TERMINATION.” The document cited various rule violations and

concluded, “Effective July 17, 2013, your employment with the Iowa

Department of Public Safety is terminated.” The document further stated,

“You may appeal this action in accordance with Iowa Code Section 80.15.”

Iowa Code section 80.15 provides a peace officer with an

opportunity, at the peace officer’s request, for a hearing before the

Employment Appeal Board (EAB). The statute states that the peace officer

“is not subject to dismissal” during the pendency of the appeal.

After receiving the document entitled TERMINATION, Hedlund filed

an appeal with the EAB pursuant to section 80.15. Prior to the scheduled

hearing, however, Hedlund dismissed the appeal. DPS then notified

Hedland that “the effective date of your termination from employment with

the Department of Public Safety will be Thursday, January 30, 2014.” One

day prior to the new effective date of his termination, Hedlund elected to

retire from the department in order to be able to use his banked sick leave

to pay for state health insurance benefits.

Even if it would have been more accurate to check the “Forced to

Quit/Retire” box on the civil rights form, the civil rights commission was

informed that Hedlund claimed he was discriminated against in

employment because of his age. Further, the respondent-employer knew

exactly what the process was leading up to Hedlund’s departure. This was

not a case where the employee hid the ball and later tried to resurrect a

claim that was never presented to the commission in the first place and

deprived the employer of an opportunity to defend. Cf. McElroy v. State,

703 N.W.2d 385, 390–91 (Iowa 2005) (finding the plaintiff did not exhaust

her administrative remedies on her retaliation claim because (1) on her

ICRC complaint form, she checked only the box labeled “sex” but not the
 59

box labeled “retaliation” and she did not describe any acts of retaliation in

her complaint’s narrative, and (2) the ICRC specifically noted the only

issue was the alleged sex discrimination in employment).

Also compelling is the fact that Iowa Code chapter 216 does not

distinguish between age-discrimination-in-employment claims that are

based on being “[f]orced to [q]uit/[r]etire” and ones that are based on being

“[t]erminated.” See Iowa Code § 216.6(1)(a); see also Haskenhoff, 897

N.W.2d at 603 (“A constructive discharge occurs ‘when the employer

deliberately makes an employee’s working conditions so intolerable that

the employee is forced into an involuntary resignation.’ ” (Emphasis

added.) (quoting Van Meter Indus. v. Mason City Human Rights Comm’n,

675 N.W.2d 503, 511 (Iowa 2004))). Indeed, section 216.6(1)(a) does not

use the terms terminate, force to quit, or force to retire. Rather, section

216.6(1)(a) makes it unlawful to “discharge any employee” or to “otherwise

discriminate in employment against . . . any employee because of [the

employee’s] age.” Comparatively, the ICRC complaint form does not have

a box to check for being “discharge[d],” which could reasonably mean being

terminated, forced to quit, forced to resign, laid-off, among other possible

actions listed on the ICRC complaint form.

Moreover, the substantive elements of an age-discrimination-in-

employment claim are no different if the claim derives from termination or

being forced to retire. Hedlund must still prove (1) he is a member of a

particular protected class—age, (2) he was qualified to do his job, and

(3) he suffered an adverse employment decision because of his particular

protected characteristic—age. See, e.g., Deeds v. City of Marion, 914

N.W.2d 330, 339 (Iowa 2018) (setting out same three elements as basis for

a discrimination-in-employment case based on disability); DeBoom, 772

N.W.2d at 6–7, 13–14 (setting out elements of pregnancy-discrimination-
 60

in-employment claim under the ICRA similarly and adopting Price

Waterhouse’s a-motivating-factor standard for causation); Vaughan v.

Must, Inc., 542 N.W.2d 533, 538–39 (Iowa 1996) (identifying similar

elements for a Federal ADEA claim using the Price Waterhouse standard

for causation). Whether the adverse employment action was being

terminated or being forced to quit, the alleged end result is Hedlund was

“discharge[d]” from his employment because of his age, which is ultimately

all that section 216.6(1)(a) requires. 18

We have acknowledged that “[a] plaintiff will be deemed to have

exhausted administrative remedies as to allegations contained in a judicial

complaint that are like or reasonably related to the substance of charges

timely brought before [the administrative agency].” McElroy, 703 N.W.2d

at 390 (alterations in original) (quoting Williams v. Little Rock Mun. Water

Works, 21 F.3d 218, 222 (8th Cir. 1994)); see Huri v. Office of the Chief

Judge of the Circuit Ct. of Cook Cty., 804 F.3d 826, 831–32 (7th Cir. 2015)

(“[T]he relevant claim and the EEOC charge must, at a minimum, describe

the same conduct and implicate the same individuals.”). Hedlund’s

allegation that he was discharged from or otherwise discriminated against

in his employment because of his age that is contained in his judicial

complaint is reasonably related to his ICRC complaint allegations that he

was disciplined, suspended, and terminated in his employment because of

his age. See, e.g., Batson v. Salvation Army, 897 F.3d 1320, 1327 (11th

Cir. 2018) (“[T]his Court . . . has noted that judicial claims are allowed if

they amplify, clarify, or more clearly focus the allegations in the EEOC

18Further, Hedlund’s situation is distinguishable from a situation where an ICRC
complainant checked a box on the complaint form identifying one type of discriminatory
employment conduct (discrimination based on her sex), did not check the box for a
separate type of discriminatory conduct (retaliatory discrimination), and at trial, tried to
pursue a claim based on the “unchecked” type of discriminatory conduct. See McElroy,
703 N.W.2d at 390–91.
 61

complaint, but has cautioned that allegations of new acts of discrimination

are inappropriate.” (Second alteration in original.) (quoting Gregory v. Ga.

Dep’t of Human Res., 355 F.3d 1277, 1279–80 (11th Cir. 2004) (per

curiam))). Additionally, Hedlund was terminated from his employment

with the DPS only one time—on July 17, 2013; the effective date of that

termination is all that changed. 19 Thus, the letter informing Hedlund his

termination would become effective on January 30, 2014, was merely a

continuation of the adverse employment action Hedlund cited in his ICRC

complaint—the decision to terminate him in July 2013.

It is also important to remember that civil rights complaints are

often filed by lay persons and the civil rights process is designed to provide

an avenue for unrepresented persons to obtain relief. See Mormann v.

Iowa Workforce Dev., 913 N.W.2d 554, 568–69 (Iowa 2018); see also

Williams v. Tarrant Cty. Coll. Dist., 717 F. App’x 440, 445 (5th Cir. 2018)

(per curiam) (“Because administrative charges are ‘rarely drawn by an

attorney’, ‘the only absolutely essential element of a timely charge of

discrimination is the allegation of fact contained therein.’ ” (quoting

Sanchez v. Standard Brands, Inc., 431 F.2d 455, 463, 467 (5th Cir. 1970)));

Younis v. Pinnacle Airlines, Inc., 610 F.3d 359, 362 (6th Cir. 2010) (noting

EEOC charges are usually filed by aggrieved employees, not attorneys, so

those complaints should be construed liberally). Thus, our exhaustion

19Hedlund received only one notice of termination, which was dated July 17, 2013.

In that notice, under the heading “Action To Be Taken,” it said, “Your actions and
deportment represent behavior that is unacceptable and warrants discharge.” It then
continued, “Effective July 17, 2013, your employment with the Iowa Department of Public
Safety is terminated.”
In contrast, after Hedlund dismissed his appeal to the EAB, he did not receive
another official document or communication informing him he was now being terminated.
Instead, he received a letter that said, “Pursuant to [your] dismissal [of your EAB appeal]
and Iowa Code section 80.15, your effective date of termination from employment with the
Department of Public Safety will be Thursday, January 30th, 2014.” (Emphasis added.).
 62

rules relating to civil rights complaints and the process should not be

interpreted or applied in a highly technical manner. Mormann, 913 N.W.2d

at 570; McElroy, 703 N.W.2d at 390 (“[T]he administrative complaint must

be construed liberally to further the remedial purposes of the civil rights

laws.”).

The defendants’ check-the-box argument is highly technical and

would defeat the purposes of Iowa Code chapter 216. See Gregory, 355

F.3d at 1280 (holding the plaintiff exhausted administrative remedies even

though she failed to check the retaliation box on the EEOC complaint

because the EEOC investigation “would have reasonably uncovered any

evidence of retaliation”); Tarrant Cty. Coll. Dist., 717 F. App’x at 445 (“[O]ur

court does not require a ‘plaintiff [to] check a certain box or recite a specific

incantation to exhaust’ and will not ‘cut off [a party’s rights] merely

because [s]he fails to articulate correctly the legal conclusion emanating

from h[er] factual allegations.’ ” (Alterations in original.) (first quoting

Pacheco v. Mineta, 448 F.3d 783, 792 (5th Cir. 2006); and then quoting

Sanchez, 431 F.2d at 462)); Spengler v. Worthington Cylinders, 615 F.3d

481, 490 (6th Cir. 2010) (holding the plaintiff exhausted administrative

remedies on his retaliation claim even though he did not check the

“Retaliation” box on the EEOC charge because he “clearly set[] forth a

retaliation claim in the narrative of the EEOC charge such that both the

defendant and the EEOC were on notice of [his] retaliation claim”);

Kristufeh v. Hussmann Foodservice Co., Toastmaster Div., 985 F.2d 364,

368 (7th Cir. 1993) (stating simple technicalities such as “[w]hat boxes, for

instance, are checked on the EEOC form do not necessarily control the

scope of the subsequent civil complaint”); Noreuil v. Peabody Coal Co., 96

F.3d 254, 259 (7th Cir. 1996) (noting when claims are related and

intertwined, strict and technical application of forms is inappropriate); Sw.
 63

Convenience Stores, LLC v. Mora, 560 S.W.3d 392, 401 (Tex. App. 2018)

(“[Plaintiff’s] claims may include those stated in her charge and factually

related claims that could reasonably be expected to fall within the agency’s

investigation of the claims stated in the charge.”); cf. Mormann, 913 N.W.2d

at 569 (“Strict and highly technical enforcement of filing limitations [in civil

rights complaints] is inconsistent with the statutory purpose of providing

a remedial avenue for unrepresented claimants.”).

On the other hand, it is perfectly appropriate to rely on a check-the-

box rationale when there is otherwise no reasonable notice to the

respondent and the civil rights agency of a particular charge. See, e.g.,

Hamzah v. Woodman’s Food Mkt., Inc., 693 F. App’x 455, 458 (7th Cir.

2017) (finding failure to exhaust when the plaintiff claiming sexual

orientation discrimination checked boxes for discrimination on the basis

of race, retaliation, and age, but not for sex, and did not include any

factual allegations related to sexual orientation in his narrative); Johnson

v. Pointe Coupee Parish Police Jury, 261 F. App’x 668, 670 (5th Cir. 2008)

(per curiam) (finding failure to exhaust on age discrimination claim when

the plaintiff checked only the box for race discrimination, did not mention

age discrimination in the EEOC charge narrative, or amend the EEOC

charge to include age discrimination); Ramon v. AT&T Broadband, 195

F. App’x 860, 866 (11th Cir. 2006) (per curiam) (finding failure to exhaust

on retaliation and hostile work environment claims when neither “could

have reasonably been expected to grow [out] of the allegations made . . . in

[the] EEOC charge”); Marshall v. Fed. Express Corp., 130 F.3d 1095, 1098

(D.C. Cir. 1997) (“[A]llowing a complaint to encompass allegations outside

the ambit of the predicate EEOC charge would circumvent the EEOC’s

investigatory and conciliatory role, as well as deprive the charged party of

notice of the charge, as surely as would an initial failure to file a timely
 64

EEOC charge.” (quoting Schnellbaecher v. Baskin Clothing Co., 887 F.2d

124, 127 (7th Cir. 1989))); McElroy, 703 N.W.2d at 390–91 (holding the

plaintiff failed to exhaust her administrative remedies on her retaliation

claim when she did not check the retaliation box on the complaint form,

describe any retaliatory acts in her narrative, or provide the civil rights

commission with any indication there was a retaliation issue); Sw.

Convenience Stores, 560 S.W.3d at 401 (“A vague or circumscribed EEOC

charge cannot satisfy the exhaustion requirement for claims it does not

fairly embrace.”). However, this is not such a hide the ball case because

Hedlund’s judicial age discrimination claim is related to and can be

reasonably expected to grow out of the factual allegations made in support

of his age discrimination charge in the ICRC complaint.

Because this is not a hide the ball type of case, because age

discrimination was clearly identified as the type of illegality alleged, and

because claims of termination and constructive discharge are related and

intertwined, the defendants’ check-the-box rationale lacks merit.

III. Remedial Issues Under Iowa Code Section 70A.28(5).

This case involves remedial issues under Iowa Code section

70A.28(5). The first issue is whether Hedlund is entitled to a jury trial.

The second issue is whether he is entitled to seek an award of emotional

distress damages.

Iowa Code section 70A.28(5)(a) provides that a person who

discharges an employee in violation of the statute

[i]s liable to an aggrieved employee for affirmative relief
including reinstatement, with or without back pay, or any
other equitable relief the court deems appropriate, including
attorney fees and costs.

I first consider whether Hedlund is entitled to a jury trial. We have

recognized that, generally, there is no right to a jury trial in equity cases.
 65

Weltzin v. Nail, 618 N.W.2d 293, 296 (Iowa 2000) (en banc). Thus, we must

begin by determining whether Hedlund’s section 70A.28(5)(a) claim is

equitable or legal in nature.

“The legal or equitable nature of the proceeding is to be determined

by the pleadings, the relief sought, and the nature of the case.” Carstens

v. Cent. Nat’l Bank & Tr. Co. of Des Moines, 461 N.W.2d 331, 333 (Iowa

1990). However, the fact that an action is commenced at law or in equity

does not necessarily entitle or deprive a party of the right to a jury trial on

the issues ordinarily triable to a jury. Id. Similarly, the mere fact that the

relief sought is a legal remedy does not necessarily classify the action as a

legal one. Id. Rather, we must “look at the essential nature of the cause

of action” in addition to the pleadings and remedy. Id. Further, because

the claim at issue here is a statutory one, we must also consider the

statute’s language.

Hedlund’s case was commenced and docketed as an action at law.

Notably, section 70A.28 does not specify whether the civil enforcement

action in section 70A.28(5)(a) is a legal or equitable proceeding.

Hedlund also sought both legal and equitable relief. The ordinary

rule, of course, is that legal remedies are to be determined by the jury while

equitable remedies are determined by the court. See, e.g., Westco

Agronomy Co. v. Wollesen, 909 N.W.2d 212, 225 (Iowa 2017); Weltzin v.

Nail, 618 N.W.2d 293, 296 (Iowa 2000); 1 Dan B. Dobbs, Dobbs Law of

Remedies § 1.2, at 11 (2d ed. 1993) [hereinafter Dobbs Law of Remedies];

47 Am. Jur. 2d Jury §§ 27, 28, Westlaw (database updated May 2019).

The statute expressly allows for “affirmative relief including

reinstatement, with or without back pay,” or any other appropriate

equitable relief. Iowa Code § 70A.28(5)(a). This is an unusual statutory

phrase. “Affirmative relief” is not usually considered presumptively legal
 66

or equitable; rather, it is context dependent. See, e.g., Affirmative relief,

Black’s Law Dictionary (10th ed. 2014) (defining affirmative relief as “[t]he

relief sought by a defendant by raising a counterclaim or cross-claim that

could have been maintained independently of the plaintiff’s action”).

Nevertheless, the term often corresponds with equitable forms of relief.

See, e.g., Mlynarik v. Bergantzel, 675 N.W.2d 584, 587–89 (Iowa 2004)

(relying on equity principles to allow affirmative relief in the form of

recovering attorney fees paid under an illegal contingent fee contract);

Opperman v. M. & I. Dehy, Inc., 644 N.W.2d 1, 7 (Iowa 2002) (characterizing

as affirmative relief the cancelation of a real property mortgage and an

award of attorney fees); Allison v. Hess, 28 Iowa 388, 390–91 (1869)

(holding, in an equity action, the plaintiffs were not entitled to affirmative

relief in the form of an injunction against the prosecution of a separate

civil action by the defendant or a declaration that the real property lease

at issue in the separate action was null and void); Relief, Black’s Law

Dictionary (placing affirmative relief under the third definition of relief,

which is “[t]he redress or benefit, esp. equitable in nature (such as an

injunction or specific performance), that a party asks of a court”). Use of

the term affirmative relief suggests a section 70A.28(5)(a) action is an

equitable one.

Also telling are the types of remedies expressly included in the

affirmative relief available under section 70A.28(5)(a). Affirmative relief

under the statute includes “reinstatement . . . or any other equitable relief.”

Iowa Code § 70A.28(5)(a) (emphasis added). Reinstatement, itself, is

ordinarily an equitable remedy. E.g., Sayger v. Riceland Foods, Inc., 735

F.3d 1025, 1034–35 (8th Cir. 2013); 1 Dobbs Law of Remedies § 2.1(2), at

59–60 (noting reinstatement is a form of specific performance, which is a

type of injunctive relief, which is a type of equitable remedy); 2 Civil Actions
 67

Against State and Local Government: Its Divisions, Agencies and Officers

§ 14:16 (2d ed.), Westlaw STATCIVAC (database updated Feb. 2019)

[hereinafter Civil Actions]. And the “any other equitable relief” language in

section 70A.28(5)(a) indicates reinstatement is an equitable remedy for

purposes of section 70A.28(5)(a). Section 70A.28(5)(a)’s express listing of

only equitable remedies as types of affirmative relief suggests a section

70A.28(5)(a) claim is an equitable one.

However, it is not absolutely clear that section 70A.28(5)(a) limits

affirmative relief to only equitable relief. First, nothing in the statute

explicitly defines affirmative relief as equitable relief.

Second, section 70A.28(5)(a) provides that affirmative relief includes

certain remedies, but the listed remedies do not appear to be an exhaustive

list. This suggests affirmative relief could also include legal remedies.

Section 70A.28(5)(a)’s explicit allowance of backpay, at first glance, seems

to support that suggestion. Backpay has been repeatedly regarded as a

legal remedy in a variety of employment law contexts. See EEOC v.

Baltimore County, 904 F.3d 330, 332 (4th Cir. 2018) (per curiam) (“[B]ack

pay is a mandatory, legal remedy under the [Fair Labor Standards

Act] . . . .”), cert. denied, ___ S. Ct. ___, ___ (2019); Santiago-Negron v.
Castro-Davila, 865 F.2d 431, 441 (lst Cir. 1989) (“[T]he determination of

back pay as a factor of compensatory damages involves the substance of

a common-law right to a trial by jury.”); Setser v. Novak Inv. Co., 638 F.2d

1137, 1142 (8th Cir.) (“[T]he remedy of backpay in [42 U.S.C.] § 1981 cases

is more appropriately characterized as a compensatory, legal damage.”),

vacated in part on other grounds and amended on reh’g by 657 F.2d 962,

965 (8th Cir. 1981) (en banc); Pons v. Lorillard, 549 F.2d 950, 954 (4th Cir.

1977) (“[W]e believe that a monetary award for back wages is a traditional

legal remedy and that the computation of such an award would not be
 68

beyond the practical capabilities of a jury.”), aff’d on other grounds, 434

U.S. 575, 585, 98 S. Ct. 866, 872 (1978). There is, however, at least a

contrary view. Broadnax v. City of New Haven, 415 F.3d 265, 271 (2d Cir.

2005) (treating backpay, when a form of a lost wages award, as an

equitable remedy in Title VII cases); cf. Great-W. Life & Annuity Ins. v.

Knudson, 534 U.S. 204, 218 n.4, 122 S. Ct. 708, 717 n.4 (2002) (noting

Congress treated backpay under Title VII, 42 U.S.C. § 2000e–5(g)(1), which

has substantially similar language to Iowa Code section 70A.28(5)(a), as

equitable “only in the narrow sense that it allowed backpay to be awarded

together with equitable relief”). See generally 2 Civil Actions § 14.19

(stating that there is some disagreement whether backpay is a legal or

equitable remedy). While not determinative, I note that in at least three

recent Iowa cases, awards of backpay have been determined by juries. See

Hawkins, ___ N.W.2d at ___ (noting the jury awarded backpay on ICRA

claims for age and disability discrimination); Lee v. State, 815 N.W.2d 731,

735 (Iowa 2012) (noting the jury awarded backpay under the Family

Medical Leave Act and the district court ordered reinstatement, frontpay,

and attorney fees); Vaughan, 542 N.W.2d at 538 (noting the jury awarded

backpay under the Federal ADEA).

Here, however, the award of backpay in the statute appears to be

linked to the equitable remedy of reinstatement. Cf. Great-W. Life &

Annuity Ins., 534 U.S. at 218 n.4, 122 S. Ct. at 717 n.4. When

reinstatement is ordered by the court, backpay may or may not be

awarded. How would a jury decide this question? It would seem odd to

have the court determine whether or not reinstatement is appropriate but

then allow the jury to decide the amount of backpay arising from the

reinstatement.
 69

Further, if the court sitting in equity determines that reinstatement

is not appropriate, can the employee receive backpay as “other equitable

relief”? Iowa Code § 70A.28(5)(a). It would also seem odd for a statute to

allow backpay only if the court elects to reinstate the employee but deny

it where reinstatement was thought to be impractical or undesirable. In

other words, if we were to characterize backpay in the context of this

statute as legal relief, it would become unavailable under the statute if

reinstatement is not granted. 20

Moreover, frontpay serves as an alternative “other equitable relief”

to reinstatement, and it is often awarded in addition to backpay. See, e.g.,

Van Meter Indus., 675 N.W.2d at 513–15 & n.5 (calculating both frontpay

and backpay in employment discrimination case); 2 Dobbs Law of

Remedies § 6.10(4), at 205, 213–15 (“[Under federal statutes that are

substantially similar to section 70A.28(5)(a), w]hen reinstatement is

permitted under the statute, but denied for reasons peculiar to the

individual claim, ‘front pay’ or an award for future lost pay may be given

in lieu of reinstatement. . . . When reinstatement is not a suitable remedy

on the facts, a money remedy for future economic losses must be

constructed if possible.”). As there is no usual, corresponding “other

equitable relief” alternative to backpay, it makes sense for backpay to be

treated as equitable under the statute and available regardless of whether

the employee is reinstated or, alternatively, awarded frontpay.

20Such a result would be troubling especially in light of the fact that reinstatement
is disfavored as a remedy in the employment context. See Restatement of Employment
Law § 9.04 & cmts. b–c, at 523–24 (Am. Law Inst. 2015); 2 Dobbs Law of Remedies
§ 6.10(2), at 198; 3 id. § 12.21(4), at 489; see also Lee v. State, 844 N.W.2d 668, 671 (Iowa
2014) (noting concern regarding the propriety of reinstatement in an employment
context); Restatement (Second) of Contracts § 367(1), at 192 (Am. Law Inst. 1981). See
generally Restatement of Employment Law § 9.04 cmt. b, at 523–24 (providing rationale
for rule against specific performance); Restatement (Second) of Contracts § 367 cmt. a,
at 192 (same); 3 Dobbs Law of Remedies § 12.21(4), at 489–93 (same).
 70

So the question is how to interpret this statute in a way that is

coherent. As a general matter, I think backpay, which seems to be a type

of damages, is ordinarily a legal remedy. But we must be sensitive to the

statutory environment in which the term has been planted. In the case of

this statute, I believe that backpay is available whether or not

reinstatement occurs. For purposes of this statute, and this statute only,

I conclude that the remedy of backpay should be treated as an equitable

remedy.

Even so, there are practical reasons that the legislature expressly

enumerated certain equitable remedies but not legal remedies in section

70A.28(5)(a). First, it must be remembered that section 70A.28 is

applicable in the employment law context. A section 70A.28(5)(a) action

to enforce the dictates of section 70A.28(2), which prohibit, in part,

discharging an employee for engaging in a protected activity, is akin to the

tort action of wrongful discharge in violation of public policy. See, e.g.,

Restatement of Employment Law § 7.07, at 375 (Am. Law Inst. 2015);

2 Dobbs Law of Remedies § 6.10(3), at 201. But in the employment law

context, there is a traditional rule against the remedy of specific

performance, especially in the form of reinstatement. See Restatement of

Employment Law § 9.04 & cmts. b–c, at 523–24; 2 Dobbs Law of Remedies

§ 6.10(2), at 198; 3 id. § 12.21(4), at 489; see also Lee v. State, 844 N.W.2d

668, 671 (Iowa 2014) (noting concern regarding the propriety of

reinstatement in an employment context); Restatement (Second) of

Contracts § 367(1), at 192 (Am. Law Inst. 1981). See generally

Restatement of Employment Law § 9.04 cmt. b, at 523–24 (providing

rationale for rule against specific performance); Restatement (Second) of

Contracts § 367 cmt. a, at 192 (same); 3 Dobbs Law of Remedies

§ 12.21(4), at 489–93 (same). Thus, if the legislature wanted
 71

reinstatement to be an available remedy for a wrongful discharge under

section 70A.28(2), it needed to specifically state as much, which it did in

section 70A.28(5)(a).

Second, a similar rationale explains the express enumeration of the

equitable remedies of attorney fees and costs in section 70A.28(5)(a).

Under the American rule, ordinarily each party is responsible for its own

attorney fees and costs. De Stefano v. Apts. Downtown, Inc., 879 N.W.2d

155, 168 (Iowa 2016). There is an exception to that rule, however, where

a statute expressly authorizes an award of attorney fees. See Lee v. State,

906 N.W.2d 186, 197 (Iowa 2018). Thus, if the legislature wanted to

ensure persons harmed by a violation of section 70A.28(2) were able to

recover attorney fees and costs in a section 70A.28(5)(a) action, it needed

to so state. It did so in section 70A.28(5)(a).

Third, the legislature’s express inclusion of the “any other equitable

relief” language in section 70A.28(5)(a), likewise, is necessary in light of

the specific relief listed in section 70A.28(5)(b), which provides,

When a person commits, is committing, or proposes to commit
an act in violation of subsection 2, an injunction may be
granted through an action in district court to prohibit the
person from continuing such acts. The action for injunctive
relief may be brought by an aggrieved employee or the attorney
general.

As an injunction is a form of equitable relief, relief from a discharge in

violation of subsection (2) pursuant to subsection (5)(b) can be only

equitable relief. Therefore, if the legislature wanted subsection (5)(a) to

allow for equitable relief, generally, or specific kinds of equitable relief, it

needed to say so. It did this by expressly including specific kinds of

equitable relief and equitable relief generally as types of affirmative relief

available under subsection (5)(a).
 72

In sum, these practical explanations for the language used in section

70A.28(5)(a) suggest affirmative relief under section 70A.28(5)(a) can

include equitable and legal remedies. Nevertheless, the remedy sought or

available is not the sole factor we must consider; we must also consider

the essential nature of the action. See Weltzin, 618 N.W.2d at 297 (“[I]t is

the nature of the cause of action, i.e., where the case is properly docketed,

that is the deciding factor.”); Carstens, 461 N.W.2d at 333 (“We look at the

essential nature of the cause of action, rather than solely at the remedy,

to determine if a party is entitled to a jury trial.”).

The essential nature of Hedlund’s section 70A.28(5)(a) claim is

analogous to a wrongful discharge in violation of public policy claim. 21

See, e.g., 2 Dobbs Law of Remedies § 6.10(3), at 201 (treating causes of

action that arise from the violation of statutes prohibiting retaliatory

discharge for whistleblowing as equivalent to common law wrongful

discharge in violation of public policy claims); see also Jasper v. H. Nizam,

Inc., 764 N.W.2d 751, 762 (Iowa 2009). In Jasper, we acknowledged that

“our wrongful-discharge cases that have found a violation of public policy

can generally be aligned into four categories of statutorily protected

activities,” which include “exercising a statutory right or privilege,” such
as the right to file a workers’ compensation claim or pursue unemployment

benefits, and reporting the employer’s illegal or publically harmful

activities. 764 N.W.2d at 762; see Vanessa F. Kuhlmann-Macro, Note,

21Under Iowa law, the elements of a wrongful discharge in violation of public policy
tort are
(1) existence of a clearly defined public policy that protects employee
activity; (2) the public policy would be jeopardized by the discharge from
employment; (3) the employee engaged in the protected activity, and this
conduct was the reason for the employee’s discharge; and (4) there was no
overriding business justification for the termination.
Jasper v. H. Nizam, Inc., 764 N.W.2d 751, 761 (Iowa 2009).
 73

Blowing the Whistle on the Employment At-Will Doctrine, 41 Drake L. Rev.

339, 341–42 (1992), cited by Jasper, 764 N.W.2d at 762.

A state employee has an implied statutory right to whistleblow

within the parameters of section 70A.28(2). Thus, if the employee

exercises that right and is discharged as a result, which constitutes a

violation of section 70A.28(2), the employer’s violation likely gives rise to a

wrongful discharge in violation of public policy tort action.

Accordingly, so long as a section 70A.28(5)(a) claim does not

preempt or otherwise preclude such a wrongful discharge in violation of

public policy claim, the relief afforded by and the nature of a section

70A.28(5)(a) proceeding should be interpreted as being equitable. As

nothing in the Iowa Code or our caselaw indicates the relief afforded in

section 70A.28(5) preempts relief from other common law avenues of

redress, I conclude Hedlund’s section 70A.28(5)(a) claim is equitable in

nature. But cf. Restatement of Employment Law § 5.01 & cmt. e &

illust. 3, at 188, 190–92 (noting some states have found the remedies of

reinstatement and backpay in their whistleblower statutes to be

completely preemptive). Therefore, Hedlund is not entitled to a jury trial

on his section 70A.28(5)(a) claim.

I now turn to the question of emotional distress damages. The

statute does not specifically state that damages for emotion distress may

be recovered. Yet, the statute allows for affirmative relief. However, as

indicated above, the nature of a section 70A.28(5)(a) proceeding should be

interpreted as being equitable. Thus, I conclude that the statute

authorizes only equitable relief. Emotional distress damages are not

equitable relief, and under my approach, they are not available under the

statute.
 74

IV. Conclusion.

For the above reasons, I concur in the majority’s conclusion that

Hedlund is not entitled to a jury trial or emotional distress damages on his

section 70A.28(5)(a) whistleblower claim. I respectfully dissent from the

dismissal of the age discrimination claim in this case.

Cady, C.J., and Wiggins, J., join this concurrence in part and

dissent in part.