Opinion
No. C95-229-PAZ.
January 13, 1999.
ORDER ON RENEWED MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
This case was commenced with the filing of a complaint on July 7, 1995 (Docket No. 1), in which plaintiff Bushman alleged wrongful discharge (Count I) and retaliation (Count II) in violation of Title VII of the Civil Rights Act of 1969, 42 U.S.C. § 2000e (Title VII); unlawful discrimination in violation of Iowa Code §§ 216.6 and 216.7 (Count III); retaliation under Iowa Code § 216.11 (Count IV); and wrongful discharge in violation of "a clearly articulated public policy of the State of Iowa" (Count V).
On October 1, 1996, the defendant Mercy filed a Motion for Summary Judgment (Docket No. 21) challenging each of the counts in the complaint. On March 28, 1997, the Honorable Senior Judge Edward J. McManus granted the motion in its entirety (Docket No. 39). The plaintiff appealed to the United States Court of Appeals for the Eighth Circuit solely on the issue of whether there was a genuine issue of material fact as to whether the plaintiff was terminated in retaliation for protected conduct in violation of Title VII (Count II). On February 24, 1998, the Eighth Circuit filed an unpublished opinion holding as follows:
Bushman was entitled, as the non-moving party, to all favorable inferences from the overall evidence. Under the circumstances, we find a genuine issue of material fact as to whether her alleged insubordinate conduct or Bushman's complaint to the Iowa Civil Rights Commission was the basis for her termination. As such, we find the trial court erred in granting a summary judgment and we remand for trial on Bushman's retaliation claim.Bushman v. Mercy Care Management, Inc., No. 97-2141, slip op. at 2 (8th Cir., Feb. 24, 1998).
On June 23, 1998, the parties consented to jurisdiction over the case by United States Magistrate Judge Paul A. Zoss, and Judge McManus signed an order referring the case to Judge Zoss for further proceedings (Docket No. 51). On June 28, 1998, the defendant filed a Renewed Motion for Summary Judgment (Docket No. 45), and supporting brief (Docket No. 50). On July 6, 1998, the plaintiff filed a resistance to the renewed motion for summary judgment (Docket No. 52), and on July 17, 1998, she filed a brief in support of her resistance (Docket No. 54). The defendant filed a reply brief on July 23, 1998 (Docket No. 56); the plaintiff filed a response to defendant's reply brief on August 17, 1998 (Docket No. 58); the defendant filed a reply to plaintiff's response on August 28, 1998 (Docket No. 61); and the plaintiff filed a supplemental response to defendant's reply brief on September 11, 1998 (Docket No. 63). On October 8, 1998, the court heard the arguments of the parties. Both parties provided the court with written post-hearing arguments. The court now considers the renewed motion for summary judgment to be fully submitted.
In its Renewed Motion for Summary Judgment, Mercy alleges two grounds: First, Mercy claims that a state court decision denying the plaintiff's claim for unemployment benefits on the ground that she was discharged for misconduct is issue preclusive on the question in the present case of whether or not she was fired in retaliation for her efforts to enforce Title VII in her workplace. Second, Mercy claims that the plaintiff, at the time of her discharge, did not have a good faith reasonable belief that Mercy was engaging in unlawful employment practices under Title VII, and that she therefore cannot sustain a claim of retaliation.
II. STATEMENT OF FACTS
The following facts are not in dispute. In February 1992, plaintiff Pamela Bushman ("Bushman") was hired as a medical transcriptionist at Mercy Care North, an urgent care clinic located in Cedar Rapids, Iowa, and owned and operated by defendant Mercy Care Management, Inc. While seated at her workstation, the plaintiff claims to have overheard and observed racial jokes, comments, and incidents involving co-employees at the clinic. None of these jokes, comments, or incidents directly involved or were directed at Bushman. All of the employees at the clinic, including Bushman, were white, and none belonged to any racial minority. No non-whites applied for jobs at the clinic while Bushman worked there.
Bushman found these racial jokes, comments and incidents to be offensive, and decided to take some action to remedy the situation. She began approaching other employees in an apparent attempt to gain support for her efforts. Some of these employees complained to management about these contacts. On August 12, 1994, Bushman met with her supervisor, Trina Heath, and told Heath that she was offended by the racially insensitive environment at the clinic. Heath advised Bushman of the avenues for complaint that Bushman could pursue within the defendant's administrative structure. Bushman continued to contact co-employees about the alleged racial problems at the clinic, and several of those employees reported Bushman's activities to management.
On August 18, 1994, Heath met with Bushman and advised Bushman that she had received a letter from nine employees complaining of "intimidating, harassing and threatening" contacts from Bushman. Heath gave Bushman a written reprimand, which contained the statement that any of the following actions would be deemed cause for immediate dismissal:
1. Harassment of employees at their homes and workplace;
2. Bypassing the grievance procedure; and
3. Any attempt at retaliation against any Mercy Care North employee or ex-employee.
In response, Bushman indicated that she was not going to stop her investigation.
That evening, Bushman contacted a co-employee to discuss racial discrimination in the workplace, and attempted to contact a second co-employee. Both of these employees reported to management that Bushman was harassing them. The next morning, August 19, 1994, Heath delivered a termination notice to Bushman which stated that she was fired under the clinic's discipline policy for "1) gross improper conduct detrimental to clinic operations or patient care; 2) insubordination including any act that challenges the authority of supervisory personnel to issue a valid order; and 3) assaulting, threatening or intimidating anyone associated with the clinic."
That same day, Bushman filed a claim with the Iowa Job Service for unemployment benefits. The claim was contested by Mercy on the ground that Bushman was discharged for substantial misconduct and was therefore disqualified from receiving unemployment benefits. On September 6, 1994, a Job Service claim representative found that Bushman was discharged for misconduct and was thereby disqualified from receiving benefits. Bushman appealed this determination, and after a two day evidentiary hearing, at which she was represented by legal counsel, an administrative law judge found that Bushman's conduct did not rise to the level of substantial misconduct. Mercy appealed the decision to the Iowa Employment Appeal Board, which reviewed the record made before the ALJ and reversed the ALJ's decision, finding as follows:
[Bushman] had filed a civil rights claim and was contacting several of her co-workers to support her claim. These co-workers began to compare comments made by the claimant and felt they were being intimidated and harassed into supporting the claimants' position although they did not agree with it. They contacted their management person and did file a written report. The manager, Trina Heath, held a meeting with the claimant and discussed her complaints. The claimant was informed of the chain of authority and that she should come to management if she felt there were problems in the workplace. The claimant did not want to discuss the problems but did state she was aware of the chain of authority. The claimant continued to contact her co-workers who began to feel even more intimidated and harassed. These co-workers signed a complaint letter and presented it to the manager. The manager held a second meeting with the claimant on August 12 and issued a specific set of instructions which were to be followed, and a written warning stating any further violation of these instructions would result in discharge. The claimant, on that very evening, contacted at least two of her co-workers in violation of the instructions contained in that written warning.
. . . .
The employment appeal board concludes the employer has established disqualifying misconduct and the claimant is not eligible for UI benefits.
The Iowa District Court affirmed the decision on January 25, 1996, holding that Bushman was discharged for substantial misconduct. The Iowa Court of Appeals affirmed on April 30, 1997, holding that "[w]illful misconduct supporting a denial of unemployment benefits can be established if an employee manifests an intent to disobey reasonable instructions of the employer." Bushman v. Employment Appeal Board, No. 96-361, Slip op. at 3 (Iowa Ct.App., April 30, 1997).
On August 22, 1994, Bushman filed a complaint with the Iowa Civil Rights Commission, which was cross-filed with the Equal Employment Opportunity Commission ("EEOC"). The complaint alleged in pertinent part:
I am a white American female. I have been employed as a full-time medical transcriptionist at Mercy Care North since 17 February 1992. After working there for a short time it became very clear to me that many of my colleagues were bigots and that the clinic atmosphere was such that they felt very comfortable making racially derogatory and ethnically derogatory statements. Many of the statements are matter-of-fact and not directed at anyone in particular, such as, `It's raining nigger babies.' Other comments were made very specifically about patients who came to the clinic for services in reference to having to deal with a `nigger' or a `chink.' Laughing and joking about minority patients is common, widespread and accepted by management. One occasion I witnessed was when Martin Luther King, Jr. Day was `celebrated' by displaying and eating a large, professionally decorated cake which ridiculed Dr. King with a black clown face on it and the words, `Happy Birthday, Marty!' Such behavior is condoned by Mercy's administration as the clinic director visits frequently, has heard many derogatory comments and has viewed the cake with others and has never made it known that such behavior is inappropriate and illegal.
* * *
Recently I have made known to some of my coworkers my disapproval of the racially and sexually hostile work environment. On Friday, 12 August 1994, I was approached by the clinic director who chastised me for having talked to coworkers and for having gone outside the agency — to the civil rights commission — with `clinic business' about what was going on at the clinic. Since that time I believe that management personnel have met with coworkers and as a result most employees do not speak to me at all.
I hereby charge Mercy Care North with maintaining a racially and sexually hostile environment and with retaliating against me for having voiced my opposition to such behavior and for having reported such behavior to the civil rights commission. All of the above is in violation of Section 69.06(a)(1) of the Municipal Code of Cedar Rapids, Iowa, and Chapter 216 of the Code of Iowa.
On August 25, 1994, Bushman filed a second civil rights complaint with the Iowa Civil Rights Commission, also cross-filed with the EEOC. The complaint stated in pertinent part:
I am a white American female. On Friday, 12 August 1994, I was verbally reprimanded by Trina Heath, the clinic manager, after I told her that I was in the process of filing a civil rights complaint against my employer. She also said that one of the staff had come to management personnel, telling them that I had been asking staff some questions that `kind of disturbed them' about what I felt `might be a problem at work.' I explained to her why I had been talking to some of the staff and also explained why I did not feel free to discuss the subject of racially and sexually hostile atmosphere with management personnel. She did not appear to be concerned about the subject matter of my complaint but rather accused me of `trying to rally the employees around the cause and trying to come between management and employees.'
On Thursday, 18 August 1994, Trina Heath set up a meeting with me after work. At the meeting she handed me a written reprimand which listed the following things: 1) harassment of employees at their homes and workplace; 2) by-passing the grievance procedure i.e. manager, director, administrator; 3) any attempt at retaliation against any Mercy Care North employee or ex-employee. If any of the above actions occur they will be deemed cause for immediate dismissal.
On Friday, 19 August 1994, I was terminated from Mercy Care North allegedly for having harassed a co-worker after working hours.
I have not harassed any employee or ex-employee, and I have not retaliated against anyone. My termination is for having discussed the racially and sexually hostile work environment with several co-workers and for having filed a civil rights charge with the civil rights commission. I hereby charge Mercy Care North with retaliation and violation of Section 69.10(b) of the Municipal Code of Cedar Rapids, Iowa and Chapter 216 of the Code of Iowa.
(Partial Joint Appendix pp. 7-11).
III. LEGAL ANALYSIS A. Standards for Summary Judgment
Rule 56 of the Federal Rules of Civil Procedure governs motions for summary judgment and provides that either party to a lawsuit may move for summary judgment without the need for supporting affidavits. Fed.R.Civ.P. 56(a) (b). Rule 56 further states that summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(c). "A court considering a motion for summary judgment must view all the facts in the light most favorable to the nonmoving party, . . . and give [it] the benefit of all reasonable inferences that can be drawn from the facts." Lockhart v. Cedar Rapids Community Sch. Dist., 963 F. Supp. 805, 814 (N.D. Iowa 1997) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986)). A genuine issue of material fact is one with a real basis in the record. Lockhart, 963 F. Supp. at 814 n. 3 (citing Matsushita, 475 U.S. at 586-87, 106 S. Ct. at 1355-56).
The party seeking summary judgment must "`inform[ ] the district court of the basis for [its] motion and identifying those portions of the record which show lack of a genuine issue.'" Lockhart, 963 F. Supp. at 814 (quoting Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir. 1992)); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2552-53, 91 L. Ed. 2d 265 (1986). Once the moving party has met its initial burden under Rule 56 of showing that there is no genuine issue of material fact, the nonmoving party "by affidavits or as otherwise provided in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial." Rule 56(e); Lockhart, 963 F. Supp. at 814 (citing Matsushita, 475 U.S. at 586, 106 S. Ct. at 1356).
E.g., by "affidavits . . . supplemented or opposed by depositions, answers to interrogatories, or further affidavits." Fed.R.Civ.P. 56(e).
Addressing the quantum of proof necessary to successfully oppose a motion for summary judgment, the United States Supreme Court has stated that the nonmoving party must produce sufficient evidence to permit "`a reasonable jury [to] return a verdict for the nonmoving party.'" Lockhart, 963 F. Supp. at 815 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986)). Furthermore, the Court has held that the trial court must dispose of claims unsupported by fact and determine whether a genuine issue for trial exists, rather than "weigh the evidence and determine the truth of the matter." Lockhart, 963 F. Supp. at 815 (citing Anderson, 477 U.S. at 249, 106 S. Ct. at 2510-11; Celotex, 477 U.S. at 323-24, 106 S. Ct. at 2552-53; and Matsushita, 475 U.S. at 586-87, 106 S. Ct. at 1355-56).
Thus, if Mercy shows that no genuine issue for trial exists in this case, and if Bushman cannot advance sufficient evidence to refute that showing, then Mercy is entitled to judgment as matter of law and the court must grant summary judgment in its favor. If, on the other hand, the court "can conclude that a reasonable trier of fact could return a verdict for [Bushman], then summary judgment should not be granted," Lockhart, 963 F. Supp. at 815 (citing Anderson, 477 U.S. at 248, 106 S. Ct. at 2510), and the court must deny Mercy's motion for summary judgment.
B. Successive Motions for Summary Judgment
Mercy's original motion for summary judgment was granted in its entirety by Judge McManus on March 28, 1997. On February 24, 1998, the court of appeals ruled that the trial court had erred in granting summary judgment on Count II of the complaint (Bushman's Title VII retaliation claim), and remanded the case for trial. On June 28, 1998, almost three years after the filing of the complaint, the defendant filed a Renewed Motion for Summary Judgment raising two issues: (1) issue preclusion (Mercy argues that the denial of Bushman's unemployment benefits claim in the Iowa state courts bars this claim) and (2) that the plaintiff has no viable Title VII claim (Mercy argues that Bushman cannot sustain a claim of retaliation since she and all of her co-employees were white).
The court has serious concerns about entertaining a summary judgment motion in a case that the United States Court of Appeals for the Eighth Circuit has already remanded for trial. Mercy's first issue, issue preclusion, was available at least by the date of the district court's ruling in the plaintiff's unemployment benefits case, which was over eight months before Mercy filed its first motion for summary judgment. The second ground asserted by Mercy, that there can be no retaliation claim because the plaintiff could not have reasonably believed that there was a Title VII violation in her workplace, appears to have been raised by Mercy, in a different guise, in its original motion for summary judgment. Def.'s Mot. for Sum. J., ¶ 3, (Docket No. 21); Def.'s Br. in Sup. of Mot. for Sum. J., at 25-30, (Docket No. 25). The Eighth Circuit, by remanding this case for trial, would appear to have established as the law of the case that this ground is not dispositive of the plaintiff's retaliation claim. See United States v. Bartsh, 69 F.3d 864, 866 (8th Cir. 1995); see also Unigroup, Inc. v. Winokur, 45 F.3d 1208, 1211 (8th Cir. 1995). Despite these concerns, the court will proceed with a discussion of these two issues, and will address the impact of the Eighth Circuit's remand as a part of its analysis.
C. Issue Preclusion
Mercy argues that in Bushman's unemployment benefits case (the "state case") the Iowa state courts decided that she was discharged for insubordination, and that this decision is preclusive as to the Bushman's claim in the present case that she was fired in retaliation for her efforts to enforce Title VII in her workplace. Mercy cites Kremer v. Chemical Const. Corp., 456 U.S. 461, 466 n. 6, 102 S.Ct. 1883, 1889 n. 6 (1982), for the proposition that "once a court decides an issue of fact or law necessary to its judgment, that decision precludes relitigation of the same issue in a different cause of action between the same parties." Def.'s Br. in Sup. of Mot. for Sum. J., Docket No. 25, at 6. Mercy also points out that "[28 U.S.C.] § 1738 requires federal courts to give the same preclusive effect to state-court judgments that those judgments would be given in the courts of the state from which the judgments emerged." Def.'s Br. in Sup. of Mot. for Sum. J., Docket No. 25, at 6. (citing Kremer, 456 U.S. at 466, 102 S.Ct. at 1889). Following this analysis, Iowa law would govern the application of issue preclusion to the instant case. Id.
Under Iowa law, there are four prerequisites to issue preclusion:
(1) the issue concluded must be identical; (2) the issue must have been raised and litigated in the prior action; (3) the issue must have been material and relevant to the disposition of the prior action; and (4) the determination made of the issue in the prior action must have been necessary and essential to the resulting judgment.Hunter v. City of Des Moines, 300 N.W.2d 121, 123 (Iowa 1981); accord Weishaar v. Snap-On Tools, Corp., 582 N.W.2d 177, 180-81 (Iowa 1998). To properly discuss the resolution of the first Hunter factor in the present case, the court must first define the issues in each case. If any issue raised in the state case is identical to an issue in the present case, and was material, relevant, necessary, and essential to the disposition of the state case, then issue preclusion would bar plaintiff's retaliation claim.
In the state case, the Iowa courts were faced with the issue of whether or not Bushman was discharged for substantial misconduct. Mercy alleged, and according to the Iowa courts proved, that (1) Bushman was discharged because she disobeyed a reasonable instruction from her employer, Bushman v. Employment Appeal Board, No. 96-361, Slip op. at 3 (Iowa Ct.App., April 30, 1997) ("Willful misconduct supporting a denial of unemployment benefits can be established if an employee manifests an intent to disobey reasonable instructions of the employer," citing Pierce v. Department of Job Serv., 425 N.W.2d 679, 680 (Iowa App. 1988)), and (2) that her actions amounted to substantial misconduct. In the present case, the court is faced with the typical issues in a Title VII retaliation claim. The plaintiff must first establish a prima facie case. The elements of a prima facie retaliation case are: (1) the plaintiff engaged in protected activity; (2) her employer subsequently took adverse employment action against her; and (3) the adverse action was causally linked to her protected activity. Delashmutt v. Wis-Pak Plastics, Ind., 990 F. Supp. 689, 698 (N.D. Iowa 1998), citing Manning v. Metropolitan Life Ins. Co., Inc., 127 F.3d 686, 692 (8th Cir. 1997). Once a plaintiff has established these three elements, she has established a prima facie case of retaliation. Smith v. St. Louis Univ., 109 F.3d 1261, 1266 (8th Cir. 1997). The court must then analyze the case under the McDonnell Douglas-Burdine burden-shifting analysis for disparate treatment cases. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981).
The provision of Title VII that prohibits retaliation provides as follows:
It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.42 U.S.C. § 2000e-3(a); Delashmutt v. Wis-Pak Plastics, Ind., 990 F. Supp. 689, 696 (N.D. Iowa 1998).
The first element of Bushman's prima facie case of retaliation in the present lawsuit (engaging in protected activity) was not a part of the state case at all, and the second element (subsequent adverse action) was not decided adversely to her in the state case (she was, in fact, terminated). The third element, the "causal link" between the protected activity and the adverse employment action, is more troublesome.
Furthermore, there is no question that Bushman was engaging in protected activities. Whether her activities were protected or not depends partly on whether they fell under the "participation" or "opposition" clause of 42 U.S.C. § 2000e-3(a) (the scope of protection for activity falling under the participation clause is broader than for activity falling under the opposition clause. See Booker v. Brown, 879 F.2d 1304, 1312 (6th Cir. 1989)). Viewing the evidence in the light most favorable to the non-moving party, Bushman's initial conversations with the Iowa Civil Rights Commission about investigating a possible Title VII complaint fell under the participation clause and were protected. See Booker v. Brown, 879 F.2d at 1313, ("the instigation of proceedings leading to the filing of a complaint or charge, including `a visit to a government agency to inquire about filing a charge,' is a prerequisite to protection under the participation clause." (citations omitted)). Her subsequent attempts to contact coworkers to support her civil rights claim were part of the same protected activity and were also protected. See 42 U.S.C. § 2000e-3(a).
The state courts held that Bushman disobeyed a reasonable instruction from her employer, and that her disobedience rose to the level of substantial misconduct. Bushman v. Employment Appeal Board, No. 96-361, Slip op. at 3, 6 (Iowa Ct.App., April 30, 1997). Bushman responds that the "misconduct" for which she was discharged was that she contacted witnesses to support her civil rights claim. She argues that the finding of insubordination by the state courts does not preclude a finding that her "insubordination" was in refusing to cease protected activities. Bushman argues that under these facts, as in Womack v. Munson, 619 F.2d 1292, 1297-98 (8th Cir. 1980), the purported reason for her discharge is inseparable from the protected activity. Br. in Supp. of Res. to Renewed Mot. for Sum. J., at 2. Bushman argues that even if she was terminated for insubordination, there could still be a causal link between the protected activity and the adverse action because her insubordination could be in refusing to obey an order that she cease to engage in activities protected by Title VII.
This issue would be easier to decide if the plaintiff were discharged for tardiness (there would be no possible causal link) or for filing a civil rights claim (there would be a clear causal link). Instead, the question here is in a gray area, where the employer's reason for discharging an employee is, on its face, legitimate, but where, on another level, the reason itself could be a violation of the employee's right to investigate and pursue a claim under Title VII.
Mercy could argue that since the state courts decided that Bushman disobeyed a "reasonable" order from her employer ( Bushman v. Employment Appeal Board, Iowa Ct. App. No. 96-361, Slip Op. at 3), and since any reasonable order would also, arguably, be lawful, the state court necessarily decided that the order was lawful, and not in violation of Title VII. However, a review of the state court record demonstrates that no consideration was given to the reasonableness, or to the lawfulness, of the order that Bushman stop "harassing" her co-employees. Therefore, this issue was not "raised and litigated in the prior action." Hunter, 300 N.W.2d at 123. This court believes that the resolution of this question requires determinations of fact of the type the Eighth Circuit has already said in the prior appeal in this case must be presented to a jury. Therefore, none of the elements in the plaintiff's prima facie case are precluded by the decision in the state case.
Of course, a prima facie showing of retaliation is only the beginning of the McDonnell Douglas-Burdine burden-shifting analysis. A disparate treatment analysis under this framework has three stages: (1) prima facie case; (2) nondiscriminatory reason(s); and (3) pretext. See Burdine, 450 U.S. at 252-53, 101 S. Ct. at 1093-94 (citing McDonnell Douglas, 411 U.S. at 802, 804, 92 S. Ct. at 1824, 1825). The plaintiff bears the initial burden of proving unlawful discrimination by presenting a prima facie case of discrimination, which she has done here. The burden of production then shifts to the employer to assert a legitimate, nondiscriminatory reason for the adverse employment action. The burden would then return to the plaintiff to demonstrate that the employer's articulated reason is a mere pretext. See Bevan v. Honeywell, Inc., 118 F.3d 603, 609 (8th Cir. 1997). Thus, to address completely Mercy's claim of issue preclusion, the court must go through the Hunter issue preclusion analysis with respect to the two remaining issues: (1) whether Mercy terminated Bushman based on a legitimate, nondiscriminatory reason, and (2) if Mercy terminated Bushman for a legitimate, nondiscriminatory reason, whether the reason was a pretext.
"The question at this stage is whether [the employee] presented enough evidence to allow a reasonable fact finder to infer that intentional discrimination, rather than the proffered explanation, was the real reason for [the adverse action]." Delashmutt, at 701, citing Moschetti v. Chicago, Cent. Pacific R. Co., 119 F.3d 707, 710 (8th Cir. 1997).
Mercy alleges that the state courts have already found both that Mercy terminated the plaintiff for insubordination, and that this was a legitimate, nondiscriminatory reason for the termination. Mercy further argues that the question of whether Mercy's asserted reason for terminating Bushman, insubordination, was a pretext has also already been decided in the state case, where it was held that Mercy's reason for terminating Bushman was, in fact, insubordination. Finally, Mercy argues that since both of these issues were decided adversely to Bushman in her state case, she is precluded from raising them here.
Bushman, on the other hand, argues that there is no identity of issues, as required by Hunter, since the finding in the state case that she was terminated for insubordination did not include a finding that, under the circumstances of this case, insubordination was a legitimate and nondiscriminatory reason for her termination. Bushman argues that the state court did not decide the question of whether Bushman's insubordination was in refusing to comply with a directive from her employer that she not engage in protected activities (i.e., contacting witnesses to a potential civil rights violation). Thus, Bushman argues, the court should not even reach the issue of pretext.
Curiously, Bushman does not argue that Mercy had "mixed motives" for terminating her employment, insubordination and retaliation. In fact, she specifically disclaims any "mixed motives" claim. Res. to Def.'s Reply Br., Docket No. 58, at 1 ("Plaintiff is not alleging that this is a mixed motives case"). In Tolefree v. City of Kansas City, 980 F.2d 1171, 1174 (8th Cir. 1992), the court held that a judicially reviewed administrative decision that a city employee was properly terminated for unsatisfactory job ratings estopped the employee from claiming in a Title VII action that the city's reason for terminating the employee was pretextual. However, the court held that the case could go forward on a mixed motives analysis. Id. But see Bechtold v. City of Rosemount, 104 F.3d 1062, 1067-68 (8th Cir. 1997).
This court holds as a matter of law that there was no finding in the state case that is preclusive against Bushman on the question of whether Mercy terminated Bushman based on a legitimate, nondiscriminatory reason. The state courts found that Bushman was terminated because of insubordination; they did not address the question of whether Bushman's insubordination was in refusing to comply with an order that she not pursue rights protected by Title VII. Therefore, the court finds that the first Hunter requirement for issue preclusion, identity of issues, has not been satisfied. Since the first Hunter requirement has not been met, the court does not have to address the remaining factors.
The Eighth Circuit has remanded for jury trial the question of whether Mercy's motive for terminating Bushman was that she had engaged in protected activities. The Iowa courts were never asked to answer this question, and Mercy has advanced no argument that persuades the court that a jury should not be given the opportunity to do so in the present case. Stated simply, the Eighth Circuit has held that this is a jury question, and the case cannot be resolved until the question is answered by a jury. As Judge Bennett stated in Moland v. Bil-mar Foods, 994 F. Supp. 1061, 1065-66 (N.D. Iowa 1998):
The court has often stated that "summary judgment should seldom be used in employment-discrimination cases." Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir. 1994) (citing Johnson v. Minnesota Historical Soc'y, 931 F.2d 1239, 1244 (8th Cir. 1991); Hillebrand v. M-Tron Indus., Inc., 827 F.2d 363, 364 (8th Cir. 1987), cert. denied, 488 U.S. 1004, 109 S.Ct. 782, 102 L.Ed.2d 774 (1989)); see also Snow v. Ridgeview Medical Ctr., 128 F.3d 1201, 1204 (8th Cir. 1997) (citing Crawford); Helfter v. United Parcel Serv., Inc., 115 F.3d 613, 615 (8th Cir. 1997) (quoting Crawford); Chock v. Northwest Airlines, Inc., 113 F.3d 861, 862 (8th Cir. 1997) ("We must also keep in mind, as our court has previously cautioned, that summary judgment should be used sparingly in employment discrimination cases," citing Crawford); Smith v. St. Louis Univ., 109 F.3d 1261, 1264 (8th Cir. 1997) (quoting Crawford); Hardin v. Hussmann Corp., 45 F.3d 262 (8th Cir. 1995) ("summary judgments should only be used sparingly in employment discrimination cases," citing Haglof v. Northwest Rehabilitation, Inc., 910 F.2d 492, 495 (8th Cir. 1990); Hillebrand, 827 F.2d at 364). Consequently, summary judgment is appropriate in employment discrimination cases only in "those rare instances where there is no dispute of fact and where there exists only one conclusion." Johnson, 931 F.2d at 1244; see also Webb v. St. Louis Post-Dispatch, 51 F.3d 147, 148 (8th Cir. 1995) (quoting Johnson, 931 F.2d at 1244); Crawford, 37 F.3d at 1341 (quoting Johnson, 931 F.2d at 1244).
Furthermore, this court has observed that motions for summary judgment in retaliation cases should be viewed with similar caution. Thus, in Delashmutt v. Wis-Pak Plastics, Inc., 990 F. Supp. 689, 693 (N.D.Iowa 1998), this court wrote, "These special cautions seem to the court to be no less applicable here to Delashmutt's retaliation . . . claim[ ], because such claims also often depend upon inferences of the employer's motive, as is shown by application of the same burden-shifting analysis to retaliation claims as is used in discrimination cases[.]"
Here, the Eighth Circuit has identified a fact question for the jury — Mercy's motive for terminating Bushman's employment. This court holds that issue preclusion does not prevent the jury in this case from answering this question. Lack of a Good Faith Reasonable Belief of Title VII Violation
Bushman also argues that Iowa Code § 96.6(4) specifically provides that no preclusive effect is to be given to unemployment compensation determinations. The intended scope of this statutory provision is, to say the least, unclear. However, by its terms the statute only applies to administrative decisions and does not limit the preclusive effect of judicial decisions affirming administrative rulings. Cf. Kremer v. Chemical Const. Corp., 456 U.S. 461,479-480, 102 S.Ct. 1883,1896-97 (1982) (giving preclusive effect under 28 U.S.C. § 1738 to judicially reviewed administrative decision); University of Tennessee v. Elliott, 478 U.S. 788, 794, 106 S.Ct. 3220, 3224 (1986) (under § 1738, preclusive effect is not given to unreviewed state court administrative fact findings).
In its first motion for summary judgment (Docket No. 21), Mercy alleged the following: "No genuine issue of material fact exists with regard to whether Bushman was a victim of racial discrimination. She has no standing to bring such a claim. She further cannot prove Mercy Care Management maintained a racially hostile working environment." Def.'s Mot. for Sum. J., ¶ 2, (Docket No. 21). Mercy also argued as follows: "No genuine issue of material fact exists with regard to whether Bushman was terminated in retaliation for opposing certain practices or for determining to file a civil rights complaint. She cannot prove that she was discharged for engaging in protected conduct. Her opposition to the alleged discriminatory practices was not protected." Def.'s Mot. for Sum. J., ¶ 3, (Docket No. 21). In Mercy's brief in support of its motion for summary judgment (Docket No. 25), Mercy argued as follows:
It is undisputed Bushman does not belong to a racial minority and was not the victim of any adverse employment decision because of her race, creed, color, or national origin. Furthermore, Bushman cannot establish any patient, employee, or prospective employee of Mercy Care was the victim of racial discrimination by other Mercy Care employees.
Def.'s Br. in Sup. of Mot. for Sum. J., at 16. Judge McManus held that Bushman had standing to bring her claims (Order, March 28, 1997, at 4), but that "it is the court's view that plaintiff has not come forward with a genuine issue of material fact as to whether defendant's documented reason for her discharge was pretextual." Id, at 9. The Eighth Circuit disagreed with this view, and remanded the retaliation claim for trial.
In its renewed motion for summary judgment, Mercy argues that the plaintiff, while employed at Mercy, could not have had a good faith reasonable belief that Mercy was engaging in unlawful employment practices under Title VII, and therefore, that she cannot succeed on a claim of retaliation. See Evans v. Kansas City Mo. School Dist., 65 F.3d 98 (8th Cir. 1995). Mercy argues that since the plaintiff is white and all of her co-employees are white, there could not possibly have been a racially hostile work environment at Mercy for purposes of Title VII.
The issue of whether Mercy is entitled to summary judgment on this issue has already been decided by the court of appeals in the prior appeal in this case. In its renewed motion, Mercy attempts, without supplementing the record with any additional facts, to recast this argument with a different focus, arguing that Bushman could not have had a good faith reasonable belief that Mercy was engaging in unlawful employment practices under Title VII rather than that she had no standing to raise this claim or that her opposition to the alleged discriminatory practices was not protected. This court holds that the law of the case doctrine should be applied here to prohibit Mercy from again raising this issue, or any related or derivative issues, at this late stage of the lawsuit. The law of the case doctrine "is a doctrine of discretion and provides that when a court decides a rule of law, that decision should govern the same issues in subsequent stages in the same case." Unigroup, Inc. v. Winokur, 45 F.3d 1208, 1211 (8th Cir. 1995) (citations omitted). The court finds that this doctrine should be applied here. See id. (law of the case doctrine precludes litigation of matters decided implicitly and explicitly).
Furthermore, the court finds the argument to be without merit. A plaintiff in a retaliation claim does not have to be correct in her belief that her employer is violating Title VII — she only has to have a good faith, reasonable belief that there is such a violation, even if that belief is wrong. See Evans v. Kansas City, 65 F.3d at 100. In the present case, whether Bushman had such a belief is a fact question that must be decided by the jury. See Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 209, 93 S.Ct. 364, 367, 34 L.Ed.2d 415 (1972); Clayton v. White Hall Sch. Dist., 875 F.2d 676, 679-680 (8th Cir. 1989); Sterwart v. Hannon, 675 F.2d 846, 850 (7th Cir. 1982); EEOC v. Mississippi College, 626 F.2d 477, 481-83 (5th Cir. 1980); EEOC v. Bailey Co., Inc., 563 F.2d 439, 452-54 (6th Cir. 1977); Waters v. Heublin, Inc., 547 F.2d 466, 469-70 (9th Cir. 1976).
As for Mercy's reliance on Evans, the present case is distinguishable. Evans involved a former teacher who raised complaints to the newly-hired principal regarding the school's goals of complying with a desegregation order by becoming a "magnet" school. The teacher then filed an employment discrimination suit alleging that the school administration unlawfully retaliated against him in response to the complaints. The court of appeals held that the former teacher lacked a good faith reasonable belief that the school engaged in discriminatory employment practices because the teacher's complaints regarded his "conflicting vision for the school" rather than "terms and conditions of [his] employment." Evans, 65 F.3d at 101. The court also noted that the plaintiff "could not reasonably believe that the faculty would be excused from complying with a lawfully required directive." Id. In the present case, Bushman's allegations relate to derogatory comments made by co-workers and condoned by supervisors. Thus, Bushman's claims arguably relate to conditions of employment. Bushman, unlike the plaintiff in Evans, could have reasonably believed that such actions violated federal civil rights laws. For these reasons, Evans does not control the outcome of the instant case.
IV. CONCLUSION
Based upon the foregoing analysis, the court finds that defendant's renewed motion for summary judgment should be denied.
IT IS SO ORDERED.