                   IN THE COURT OF APPEALS OF IOWA

                                 No. 13-0863
                            Filed August 27, 2014

DON WYNGARDEN,
     Plaintiff-Appellant,

vs.

STATE OF IOWA JUDICIAL BRANCH,
JOHN WAUTERS, and BRUCE BUTTEL,
     Defendants-Appellees.
________________________________________________________________

      Appeal from the Iowa District Court for Wapello County, Sherman W.

Phipps, Judge.



      In this age discrimination case, Don Wyngarden appeals the district

court’s ruling granting summary judgment to the defendants. REVERSED AND

REMANDED.



      Steven Gardner of Denefe, Gardner & Zingg, P.C., Ottumwa, for

appellant.

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

Bussanmas, Assistant Attorneys General, for appellees.



      Heard by Vaitheswaran, P.J., and Tabor and Bower, JJ.
                                        2



BOWER, J.

I.    Background Facts and Proceedings

      On October 9, 2008, Don Wyngarden, a long-tenured juvenile court

probation officer (JCO) employed by the Eighth Judicial District of Iowa, received

a written reprimand from his supervisor, John Wauters.         In the reprimand,

Wauters claimed Wyngarden acted with insubordination.              Bruce Buttel,

Wyngarden’s supervisor, “had forwarded an email from DHS” to all staff Buttel

supervised “with instructions to verify the attached client information that was

provided pursuant to the protocol between DHS and Juvenile Court Services.”

Upon Wyngarden receiving this email, he replied, “I made the corrections once. I

do not intend to make the same corrections again,” and Wyngarden included the

other JCOs on his reply. Wauters stated such action was “[i]nsubordinate and

disobedient to the direct instructions of [Wyngarden’s] supervisor.”          The

reprimand concluded: “This reprimand should serve as a strong warning that

your conduct will continue to be monitored and that another incident of this

nature will result in a more severe disciplinary action, up to and including

discharge.”

      The Personnel Policies Manual for Employees of the Iowa Judicial Branch

establishes a four-step grievance process available to employees. Wyngarden

initiated this process by filing, on October 22, 2008, a grievance concerning the

written reprimand with the Eighth Judicial District Court Administrators Office.

Wyngarden’s grievance stated “contents of the October 9, 2008 letter of written

reprimand authorized by supervisors is incomplete and inaccurate representation
                                          3



of the facts presented in oral and written form at meeting held August 8, 2008.”1

At this first step of the grievance process, Buttel found, after meeting with

Wyngarden and accepting numerous documents, “no specific grounds for the

grievance. Your grievance is hereby denied.”

       In November 2008, Wyngarden appealed Buttel’s decision. At this second

step of the grievance process, Wauters, after meeting with Wyngarden, stated

Wyngarden “offered no explanations as to how the documents were related to

the letter of reprimand . . . . The grievance is hereby denied.” In December

2008, a meeting was held on Wyngarden’s next step. At this third step, Deborah

Dice, the District Court Administrator in the Eighth Judicial District, concluded

Wyngarden’s “email response . . . was insubordinate and your written letter of

reprimand stands. Grievance denied.”

       At the fourth and final step of the grievance process, Wyngarden again

“requested that the written reprimand be withdrawn.” On May 5, 2009, William

Snyder, Director of Human Resources for the State Court Administrator, denied

the grievance, stating:

              On its face, the plain words of the email state that Mr.
       Wyngarden does not intend to comply with Mr. Buttel’s instructions
       to correct the date supplied by Ms. Clefish.          As such Mr.
       Wyngarden is insubordinate in that he is refusing to carry out the
       instructions given to him by Mr. Buttel. The insubordinate nature of
       the email is enhanced because Mr. Wyngarden chose to copy all of
       his coworkers.[2]


1
  The grievance is not in the record, but this language is the summary of the grievance
as provided in Bruce Buttel’s written decision.
2
  Mr. Snyder concluded:
               Mr. Wyngarden also asserts that he requested the assistance of a
       co-worker and that request was rejected. Mr. Wyngarden recorded all of
       his meeting with Mr. Wauters and Mr. Buttel and provided copies of the
                                            4



       Eight months later, on January 13, 2010, Wauters issued Wyngarden a

notice of suspension, stating Wyngarden was suspended without pay for three

working days due to “violations of the work rules of the Eighth Judicial District

Juvenile Court services as they pertain to the handling of the juvenile cases” of

S.I. and Z.J. Ultimately, the claims concerning Wyngarden’s handling of Z.J.’s

case were dismissed,3 and such claims are no longer at issue.

       Adhering to the four-step grievance process, Wyngarden filed a grievance

concerning his suspension. The grievance process for the suspension, however,

did not involve the first two steps because “[if] an individual serves as the

administrative authority in two or more of the steps, the grievance shall proceed

directly to the highest applicable step.” See Section 8.2, Personnel Policies for

Employees of the Iowa Judicial Branch.            Accordingly, the first step for this

grievance was step three.4




         transcripts of the meetings in support of this grievance. I have reviewed
         these transcripts and cannot find any instance where the transcript
         supports this allegation.
                 What the transcripts do document is Mr. Wyngarden’s steadfast
         refusal to accept the fact that his email demonstrated insubordination and
         his refusal to recognize that announcing his refusal to all of his coworkers
         undermines Mr. Buttel’s supervisory authority.
3
  The third-step decision stated that the long delay in addressing the identified problems
in the Z.J. case nullified its use as supporting evidence for the types of problems
characteristic of the S.I. case. The defendants did not contest this determination.
4
  The record does not contain a cover page for the suspension’s third-step grievance
decision. However, the suspension’s fourth-step grievance decision states, “Mr.
Edmondson issued his decision on March 19, 2010. He upheld the 3-day suspension
based on Mr. Wyngarden’s inappropriate conduct and work rule violations regarding the
[S.I.] case.” This characterization of Mr. Edmondson’s decision is consistent with the
decision in the record prior to the fourth-step grievance decision. We therefore infer that
Mr. Edmondson’s decision was the third step.
                                         5



       Wyngarden’s grievance challenging his three-day suspension was filed on

February 1, 2010. Wyngarden’s typed answer on the grievance form’s (italicized)

prompts stated:

                State the issue involved and the date this incident took
       place:
               Chief JCO John Wauters and JCO IV presented a letter on
       January 21, 2010 which concludes by imposing three days unpaid
       leave of absence sanctions upon [Wyngarden] effective February 3-
       5, 2010. Said decision is hereby grieved. It is noted Mr. Wauters
       and Mr. Buttel refused to discuss and refused to provide any written
       or audio or any information relevant to their investigation or
       validation of their decision.
               Remedy Requested:
               That said decision be rescinded, that employee [Wyngarden]
       be made whole, and that Mr. Wauters and Mr. Buttel immediately
       share any and all evidentiary materials [with Wyngarden] for use in
       preparation of Step 3 proceedings.

Wyngarden specified the “Personnel Policies Violated” included Policies 1.9

(Violence Free Workplace—harassing or intimidating behavior), 7.1 (Discipline—

employee shall not discipline an employee without just cause), and 10.3

(Personal Actions and Appearances).

       As enumerated in the third-step grievance decision, Wauters suspended

Wyngarden due to three violations of the work rules. First, Wyngarden placed a

juvenile, S.I., who was on informal probation in a day treatment program in

violation of a 9/28/04 directive stipulating that only juveniles on formal probation

were eligible for such placements. We note the record also shows Wauters, on

May 12, 2009, signed and approved the “application for supervised community

treatment” for S.I. with the “informal” box clearly checked and with day treatment

starting May 13, 2009, and ending June 30, 2009. On July 2, Wauters signed a
                                            6



similar application and approved additional funding for day treatment for S.I.,

starting July 1, 2009, and ending August 31, 2009.

       The second and third alleged violations of the work rules were:

       2.     Placing a juvenile [S.I.] on informal probation after intake
       without immediately drafting an informal adjustment agreement that
       is signed by the parties; and
       3. Having parties sign an informal adjustment agreement four
       months after placing the juvenile [S.I.] on informal probation and
       attempting to justify the tardy preparation by writing in an earlier
       date by his name and the word “Resigned” at the top of the page.

       After the grievance meeting, the administrator found: (1) Wyngarden

received an email dated September 28, 2004, stipulating that juveniles on

informal probation are not eligible for placement in a day treatment program and

Wyngarden understood JCOs can only place such juveniles in treatment if they

have a court order; (2) There was no court order for S.I.’s placement in

treatment; and (3) “Although Mr. Wyngarden did an intake on [S.I.] around May

12, 2009 and decided to handle the case as an informal probation, he has never

been able to substantiate that the parties signed a written informal adjustment

agreement until September 4, 2009.” The decision concluded:

       Mr. Wyngarden’s problems with the [S.I.] case should have ended
       with his failure to draft a timely informal adjustment agreement.
       Instead he compounded them by putting the date of May 12, 2009
       by his signature on the informal adjustment agreement signed on
       September 4, 2009 and by writing the word “Resigned” at the upper
       right hand corner of the agreement.5



5
  This allegedly fraudulent document concerning S.I is nowhere to be found in the
appendix or the original record. When asked about this document at oral argument,
counsel for the appellees/defendants stated the document is not in the record and “is not
in dispute.” However, counsel for appellant/plaintiff strongly disagreed, stating the
falsification assertion is a “fantasy” and the nonbinding administrative grievance process
should be disregarded.
                                             7



         Wyngarden appealed,6 and on April 30, 2010, Betty Buitenwerf, legal

counsel for the State Court Administrator, issued a decision and identified the

Fourth Step Grievance Appeal Issue: “Whether the 3-day suspension the

Grievant received for violation of work rules and procedures was appropriate.”

Her first sentence under the “Background” heading stated: “Mr. Wyngarden filed

a grievance on February 1, 2010 regarding his 3-day suspension without pay.”

         The Buitenwerf decision detailed “Grievant’s Position”:

                3-day Suspension: The Grievant acknowledges that he
         needed to have an informal agreement and that he made a mistake
         regarding the informal agreement in the [S.I.] case. However,
         Grievant indicates that the discipline was too harsh since he has
         had no prior discipline and if management would have let him know
         about their concerns he would have corrected them and made it
         right.
                Workplace Violence: Grievant contends that he was given a
         low performance rating in two areas during his performance
         evaluation in July 2009 and that the [S.I.] investigation was initiated
         by Mr. Wauters and Mr. Buttel to substantiate those low ratings.

         Before addressing the three-day suspension, Buitenwerf first described

the evidence Wyngarden and Wauters submitted at the grievance meeting:

                Mr. Wyngarden indicated that he returned from vacation on
         September 4, 2009, was reviewing files, including the [S.I.] case,
         and noticed there was no informal adjustment agreement.
         Therefore he prepared one and signed it in blue ink for May 12,
         2009. Underneath the May date, Mr. Wyngarden put, in black ink,
         September 9, 2009, the date he secured Mrs. I[ ] and [S.I.’s]
         signatures. Then Mr. Wyngarden wrote on the top right hand
         corner of the Agreement “resigned 9/4/2009” with his initials.
                Mr. Wauters submitted evidence that he had received
         statements from Mrs. I[ ] and [S.I.] that Mr. Wyngarden had asked




6
    The appendix does not provide the date Wyngarden filed the fourth-step grievance.
                                         8



      them to sign and back date the Agreement for May 12, 2009. They
      refused to do this.7

      “Based on all the evidence and facts surrounding” Wyngarden’s “actions in

relation to the Agreement,” Buitenwerf found “there is no way” Wyngarden “made

an unintentional mistake”:

      If this were the case, Mr. Wyngarden should have reported such
      errors to his supervisors. He did not do this. He knew that he
      violated policy and work rules by not issuing an informal adjustment
      and by sending [S.I.] to a day care treatment program when there
      was no court ordered formal placement.              Mr. Wyngarden
      consciously attempted to cover-up the violations by back dating the
      Agreement and attempting to manipulate his clients into back
      dating the Agreement.
              ....
              Another factor that makes the intentional actions so
      egregious is the fact that Mr. Wyngarden has been a juvenile court
      officer for 36 years and he has handled many formal, court-ordered
      proceedings for juveniles, as well as informal adjustments. He
      knew the difference and what was required in each type of
      proceeding.

      Buitenwerf rejected Wyngarden’s claim the suspension was too harsh and

should be rescinded, affirmed the recommendations of Mr. Edmonson in his

third-step grievance decision, and denied the grievance.

      On July 26, 2010, Wyngarden filed an age-discrimination complaint with

the Iowa Civil Rights Commission, stating: “I have received a written reprimand

placed in my personnel file and a subsequent three day suspension imposed by

my supervisors John Wauters and Bruce Buttel because of my age and their

desire to attempt to force/involuntarily encourage my retirement from

employment because of my age.” He listed April 30, 2010, as the date of the


7
 The appendix and record do not contain this allegedly-fraudulent document. The only
documents available to the court concerning the placement of [S.I.] do not contain
Wyngarden’s signature, nor do they contain the alleged fraudulent marks.
                                         9



“most recent” discriminatory incident. Wyngarden checked the following boxes:

Denied Benefits; Disciplined/Suspended; Forced to Quit/Retire (Attempt);

Harassment; Treated Differently.

      On November 30, 2010, Wyngarden received an Administrative Release

(Right-To-Sue Letter) from the Iowa Civil Rights Commission (ICRC). The ICRC

found Wyngarden’s complaint “was timely filed with the [ICRC] as provided in

Iowa Code section 216.15(12).” That section, renumbered in 2011 as section

216.15(13), stated: “[A] claim under this chapter shall not be maintained unless a

complaint is filed with the commission within three hundred days after the alleged

discriminatory or unfair practice occurred.” Iowa Code § 216.15(12) (2009).

      On January 28, 2011, Wyngarden filed a petition at law claiming age

discrimination under Iowa Code chapter 216 (2011), the Iowa Civil Rights Act.8

Wyngarden’s petition noted he was fifty-nine years old and his petition was filed

“within 180 days of the acts of which he complains.” Wyngarden alleged his

employer engaged in a series of acts of age discrimination, asserting:

              15. That for a considerable time including the date of the
      filing of the complaint with the [ICRC], Defendants discriminated
      against [him] with respect to the terms and conditions of his
      employment based upon his age.
              16. That for a considerable period of time up to and
      including the filing of the complaint of discrimination herein, the
      Defendants retaliated against [him] in response to his claims of age
      discrimination.
              17. That for a considerable time . . . Defendants retaliated
      against the Plaintiff in response to his claims of age discrimination,
      and such retaliation has continued.


8
   Wyngarden also included a claim based on the federal Age Discrimination in
Employment Act (29 U.S.C. § 626(c)(1)). His amended petition added a claim based on
Iowa Code chapter 91A, the Iowa Wage Payment Collection Law. Neither claim is a part
of this appeal.
                                          10



(Emphasis added.) Wyngarden’s April 2011 amended petition included these

same assertions but expanded the “Factual Background” section.

       On January 4, 2013, defendants filed a motion for summary judgment,

claiming the scope of Wyngarden’s age discrimination claim was limited to

allegations related to a three-day suspension:

              First, Mr. Wyngarden failed to exhaust administrative
       remedies. Mr. Wyngarden filed his civil rights complaint with the
       [ICRC] on July 26, 2010, alleging age discrimination. The claim
       alleged age discrimination when he received a written reprimand
       and a three-day suspension. Wyngarden never attempted to
       amend the complaint. Within his Amended Petition, however, Mr.
       Wyngarden raises several claims that were not included with the
       complaint. Specifically, Mr. Wyngarden alleges retaliation and loss
       of benefits.    Because Mr. Wyngarden failed to exhaust his
       administrative remedies, claims related to alleged acts of retaliation
       and loss of benefits must be dismissed.

       We note Wyngarden, on his ICRC complaint form, specifically checked the

employer-action of “denied benefits” and further note the form does not contain an

employer-action choice of retaliation in its employer-actions list. Wyngarden did

check “treated differently.” The defendants’ motion continued:

              Second, Mr. Wyngarden’s complaint relating to the written
       reprimand must fail as a matter of law because it is time-barred
       from relief. An ICRC complaint must be filed within 300 days after
       the alleged discrimination. Iowa Code § 216.15(13). The written
       reprimand occurred on October 9, 2008. Plaintiff filed his ICRC
       complaint on July 26, 2010, 656 days after the reprimand.
              Third, Mr. Wyngarden cannot establish a prima facie case of
       age discrimination because he cannot show that he was performing
       his work satisfactorily. And, Mr. Wyngarden’s prima facie case
       must fail because he has offered no evidence that the three-day
       suspension was in any way related to his age.9




9
 To support this element, Wyngarden submitted an affidavit in his resistance describing
conversations with Wauters and Buttel.
                                           11



              Fourth, Mr. Wyngarden’s age discrimination claim fails as a
       matter of law because the State had a legitimate non-discriminatory
       reason for his suspension.
              Fifth, Mr. Wyngarden cannot prove by a preponderance of
       evidence that the legitimate reasons offered by Defendants were a
       pretext for discrimination.

       Wyngarden’s resistance to summary judgment included his April 2013

affidavit stating he is sixty-one and, to his knowledge, younger JCOs were not

investigated or disciplined for placing juveniles they supervised “in day treatment

while on informal adjustment and not under court order.” Also, on “September

16, 2009, [Wauters] stated to me that everyone else (JCO’s) in the district

complied with the requirements that no informal adjustment suspension cases

receive day treatment. I subsequently learned Mr. Wauters statement was false.”

Wyngarden’s resistance included numerous application documents from younger

JCOs with the application’s “informal” status checked, day treatment requested,

and the “approved” blank checked—Wauters signature underneath (Aug. 2006,

Nov. 2006, April 2007, Sept. 2007, Nov. 2007, Jan. 2008, May 2008, June 2008).

       Wyngarden’s affidavit also noted, on September 16 Wauters stated he

“was being removed from . . . the [S.I.] case at the request of Mrs. I[ ],” and

Wyngarden “subsequently learned” that statement was “false.” Wyngarden also

stated, “Mrs. I[ ] has personally informed me she did no[t] request I be removed

as her daughter’s JCO and that claims to that [e]ffect are false.”10

       Finally, Wyngarden’s affidavit provided:


10
   Wyngarden’s resistance included a September 24, 2009 note from Mrs. I. stating both
JCOs in the Ottumwa office (Wyngarden and Reese) are “very understanding and
respectful gentlemen and treated myself and [S.I.] with respect and did [their] best to
help me get the help [she] needs, which we believe is substance abuse counselling . . . .
Both [JCOs] were very understanding and helpful.”
                                         12



               4. In both my interview with [Wauters] and [Buttel] on
        August 8, 2008, and during our meeting on October 9, 2009, both
        Wauters and Buttel made comments that I should retire and that I
        did not seem happy. Wauters specifically stated that I was not
        losing vacation benefits; I just could not accrue further benefits. He
        also told me he did not intend to approve my future vacation
        requests as it would hinder my ability to get my work done and I
        would just get further behind.
               5. My written reprimand and three (3) day suspension were
        clearly intended by Wauters and Buttel to get me to retire and were
        given to me because of my age compared to the age of the other
        JCO’s in the district.

        In May 2013, the district court granted defendants’ motion for summary

judgment, stating Wyngarden’s age discrimination claim relating to the written

reprimand of October 9, 2008 fails “as a matter of law because [it is] time-barred

by Iowa Code Section 216.15(13) [(2011)].” The court found Wyngarden’s ICRC

complaint regarding the reprimand was not filed until 656 days after its

occurrence on July 28, 2010, and thus was not within the requisite three hundred

days.

        The court also rejected Wyngarden’s argument the defendants have

“somehow discriminated against him on the basis of age by applying to him the

statutory accumulation limits regarding vacation time” found in Iowa Code section

70A.1. The court found nothing “in the pleadings alleges [section 70A has] been

applied to [Wyngarden] by defendants in a manner different than they are

required by statute to be applied to any other employee of the Iowa State Judicial

Branch.”

        The district court also ruled “[t]he scope of Plaintiff’s age discrimination

claim is limited to Plaintiff’s allegations related to a three-day suspension

imposed upon him by Defendants pursuant to a notice to Plaintiff dated January
                                        13



13, 2010.” The court found the undisputed facts “establish that [Wyngarden] was

not following established policies and procedures applicable to his job, was not

performing his work satisfactorily at the time he received the three-day

suspension on January 13, 2010, and that his suspension was based thereon.”

The court made no mention of the facts contained in Wyngarden’s affidavit

resisting summary judgment and did not discuss the fact Wauters, on two

separate occasions, had approved, in writing, the day treatment placement for

which Wyngarden was being suspended. The court, without analysis, summarily

concluded Wyngarden “cannot set forth a prima facia case of age discrimination.”

      On June 4, 2013, Wyngarden filed a notice of appeal, raising a single

issue: Did the district court err in determining that undisputed facts required the

granting of summary judgment in favor of the defendants, State of Iowa Judicial

Branch, John Wauters, and Bruce Buttel?

II.   Scope and Standards of Review

      We review appeals from orders granting summary judgment for the

correction of legal error. Freedom Fin. Bank v. Estate of Boesen, 805 N.W.2d

802, 806 (Iowa 2011). Summary judgment is appropriate only when the entire

record demonstrates that no genuine issue of material facts exists and the

moving party is entitled to judgment as a matter of law.         Stevens v. Iowa

Newspapers, Inc., 728 N.W.2d 823, 827 (Iowa 2007); see Iowa R. Civ. P.

1.981(3).

      We review the record before the district court to determine whether a

genuine issue of material fact existed and whether the district court correctly
                                        14



applied the law. Sain v. Cedera Rapids Cmty. Sch. Dist., 626 N.W.2d 115, 121

(Iowa 2001).     The record on summary judgment includes the pleadings,

depositions, affidavits, and exhibits presented. Stevens, 728 N.W.2d at 827. We

review the evidence in the light most favorable to the nonmoving party. Merriam

v. Farm Bureau Ins., 793 N.W.2d 520, 522 (Iowa 2011). Even where the facts

are undisputed, summary judgment is inappropriate “if reasonable minds could

draw from them different inferences and reach different conclusions.”

Goodpaster v. Schwan’s Home Serv., Inc., 849 N.W.2d 1, 6 (Iowa 2014)

(reversing summary judgment and ruling the plaintiff presented a jury issue on

whether the termination was motivated by his disability).

II.   Analysis

      A. Summary Judgment. Wyngarden contends the district court erred in

granting summary judgment. To find the district court erred in granting summary

judgment, we need only find the existence of a fact question. Sain, 626 N.W.2d

at 121. If we find a fact question concerning Wyngarden’s age discrimination

claim under the Iowa Civil Rights Act, then the court’s grant of summary

judgment was improper.

      In ruling on a motion for summary judgment, every legitimate inference

that can be reasonably deduced from the evidence should be afforded the

resisting party, here Wyngarden. See Lewis v. State ex rel. Miller, 646 N.W.2d

121, 124 (Iowa Ct. App. 2002).       An inference is legitimate if it is “rational,

reasonable, and otherwise permissible under the governing substantive law.” Id.

An inference is not legitimate if it is based upon speculation or conjecture. Id. If
                                            15



reasonable minds may differ on the resolution of an issue, a genuine issue of

material fact exists. Id.

       The Eighth Circuit Court of Appeals recognizes summary judgment is

appropriate in employment discrimination cases. See Torlowei v. Target, 401

F.3d 933, 935 (8th Cir. 2005) (affirming district court’s grant of summary

judgment because plaintiff “failed to present a prima facie case of race

discrimination”).11 “There is no ‘discrimination case exception’ to the application

of summary judgment, which is a useful pretrial tool to determine whether any

case, including [a case] alleging discrimination, merits a trial.” Torgerson v. City

of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011) (“Because summary judgment

is not disfavored and is designed for ‘every action,’ panel statements to the

contrary are unauthorized and should not be followed.”). Nevertheless, as in all

summary judgment cases, district courts are cautioned:

       [A]t the summary judgment stage the court should not weigh the
       evidence, make credibility determinations, or attempt to determine
       the truth of the matter. Rather, the court’s function is to determine
       whether a dispute about a material fact is genuine, that is, whether
       a reasonable jury could return a verdict for the nonmoving party
       based on the evidence.        The evidence of the non-movant
       [Wyngarden] is to be believed, and all justifiable inferences are to
       be drawn in [Wyngarden’s] favor. If reasonable minds could differ
       as to the import of the evidence,” summary judgment is
       inappropriate.

Id. at 1054 (Smith, J., concurring in part and dissenting in part) (quoting Quick v.

Donaldson Co., 90 F.3d 1372, 1376-77 (8th Cir. 1996)).



11
   Because the Iowa Civil Rights Act is modeled, in part, after Title VII, Iowa courts have
traditionally looked to federal law for guidance in interpreting it. Pecenka v. Fareway
Stores, Inc., 672 N.W.2d 800, 803 (Iowa 2003). “Iowa courts, however, are not bound
by federal law, despite consistent utilization of the federal analytical framework.” Id.
                                       16



      B. Age Discrimination. The Iowa Civil Rights Act (ICRA) prohibits age

discrimination by employers. Iowa Code § 216.6(1)(a). The statute provides it

“shall be an unfair or discriminatory practice for any person” to discriminate in

employment against any employee “because of the age” of such employee. Id.

(emphasis added).       The legislature’s purpose in banning employment

discrimination based on [age] was to prohibit conduct which, had the victim [not

been a member of the protected class,] would not have otherwise occurred.”

Deboom v. Raining Rose, Inc., 772 N.W.2d 1, 6 (Iowa 2009) (discussing sex

discrimination under ICRA). Wyngarden claims his employer, and supervisors

Buttel and Wauters, discriminated against him “because of” his age.

      In general, plaintiffs survive summary judgment on age discrimination

claims by introducing direct or indirect evidence of such discrimination, which

leaves a fact question. Underwood v. Monroe Mfg., L.L.C., 434 F. Supp. 2d 680,

687 (S.D. Iowa 2006). “[C]ourts analyze age discrimination cases under one of

two analytical frameworks; the Price Waterhouse direct evidence analytical

framework or the McDonnell Douglas indirect evidence, burden-shifting analytical

framework.” Id. (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 258 (1989)

and McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1974)); see

Landals v. George A. Rolfes Co., 454 N.W.2d 891, 893-94 (Iowa 1990) (citing the

Price Waterhouse and McDonnell Douglas standards in an age discrimination

case); contra Gross v. FBL Fin. Serv. Inc., 557 U.S. 167, 174 (2009) (holding the

burden-shifting framework of Price Waterhouse is not applicable to a disparate

treatment claim under the federal age discrimination act and ruling the ordinary
                                         17



meaning of the words “because of” require a showing that the adverse

employment action would not have occurred but for the prohibited motive).

       C. Statute of Limitations & Continuing Violation Doctrine. Without

analysis, the district court treated the denial of benefits, the reprimand, and the

suspension as unrelated acts and ruled “the scope [of the age discrimination

claim] is limited to the three-day suspension” and “the claim based on the written

reprimand is time-barred.”        Before we apply the Price Waterhouse and

McDonnell Douglas standards to the facts herein, we first address the court’s

statute-of-limitations ruling.

       Wyngarden challenges the court’s ruling, and the defendants reply the

reprimand, as a separate issue, falls outside the statute of limitations.       We

disagree.     First, Wyngarden’s administrative complaint alleged numerous

violations—“denied       benefits,”   reprimanded,   “treated   differently,”   and

suspended—and the ICRC’s “right to sue” letter specifically stated Wyngarden’s

complaint was “timely filed” under the statute. Second, Wyngarden’s petition

clearly alleges the defendants’ discrimination and retaliation continued “for a

considerable time.”     Third, Wyngarden’s affidavit claimed the reprimand and

suspension “were clearly intended by Wauters and Buttel to get me to retire and

were given to me because of my age compared to the age of the other JCO’s in

the district.”    Under the “continuing violation” doctrine, “if the alleged

discriminatory act is of a ‘continuing nature,’ then the act is considered to have

occurred as of the last date of the act.” Hy-Vee Food Stores, Inc. v. Iowa Civil

Rights Comm’n, 453 N.W.2d 512, 527 (Iowa 1990) (stating federal cases on
                                         18



“continuing violation” are instructive and noting a “failure to promote” is viewed as

ongoing discrimination).

       In general the “continuing violation” doctrine does not excuse
       compliance with the time limits for filing a charge. But if a violation
       is continuing, the time does not begin to run when the
       discrimination first happens. Instead the action is considered filed
       in time if there are discriminatory acts within the limitations period.

Id. It is undisputed the alleged discriminatory act of suspension is within the

limitations period.

       In evaluating whether the acts are a part of a series or isolated, one factor

we consider is permanence—“whether an employee should or should not realize

the employer is discriminating.” Id. at 528. Under this factor, the limitations

period “is not triggered when the consequences of the discriminatory acts is

something    the      employee   might   reasonably   expect   without   suspecting

discrimination. For example, an employee would probably not suspect that the

employer is discriminating when the employer’s reasons for the acts are

pretextual and seemingly legitimate.”         Id.   The Hy-Vee court upheld the

commission’s finding that the employee “may not have fully realized that Hy-Vee

was engaging in a consistent discriminatory practice” until another employee

received two promotions. Id. at 529.

       Similarly, based on the current record, Wyngarden may not have fully

realized his employer was engaging in consistent age discrimination in its

resolution of the employee benefits issue or the reprimand issue or the retaliation

issue until the employer suspended him while not acting to suspend younger

employees who had taken the same action for which he was suspended. See
                                        19



Srail v. Vill. of Lisle, 588 F.3d 940, 945 (7th Cir. 2009) (stating whether a

comparable employee is similarly situated is “usually a question for the fact-

finder”). Our test to determine whether individuals are similarly situated requires

“that the other employees be similarly situated in all relevant respects before the

plaintiff can introduce evidence comparing [himself] to other employees.”

Bennett v. Nucor Corp., 656 F.3d 802, 819 (8th Cir. 2011). “To be similarly

situated, the comparable employees must have dealt with the same supervisor,

have been subject to the same standards, and engaged in the same conduct

without any mitigating or distinguishing circumstances.” Id.

      Based on the unique and specific circumstances of this case, on the

continuing violation doctrine, on Wyngarden checking “Denied Benefits” and

“Treated Differently” on his ICRC form, while also specifically referring to the

reprimand and the suspension, and based on our finding below that factual

issues preclude summary judgment, we also conclude, on this record, the statute

of limitations does not limit the scope of the age discrimination claim to the

suspension issue.   The fact-finder should resolve whether the other JCO’s who

were not suspended were similarly situated in its process of resolving

Wyngarden’s claims based on the employer’s (1) denial of vacation benefits, (2)

issuance of a reprimand, (3) issuance of a suspension, and (4) retaliation.

      D. Price Waterhouse. We now turn to Wyngarden’s claim he has raised

a genuine issue of material fact under Price Waterhouse. The Price Waterhouse

Court considered 42 U.S.C. § 2000e–2(a)(1) (prohibiting discrimination “because

of” the prohibited class) in a mixed-motives case—a case where “there is no one
                                         20



‘true’ motive behind the decision,” because “the decision is a result of multiple

factors, as least one of which is legitimate.” Price Waterhouse, 490 U.S. at 260

(White, J., concurring in judgment). In such cases, the plaintiff typically bears the

burden of persuasion “to establish that age was a motivating or determining

factor in the employer's decision.” See Gross v. FBL Fin. Servs., Inc., 588 F.3d

614 (8th Cir. 2009). Thereafter, an employer “could avoid a finding of liability by

proving that it would have made the same decision even if it had not allowed

gender [or age] to play such a role.” Desert Palace, Inc. v. Costa, 539 U.S. 90,

93-94 (2003).

       In Iowa, the Price Waterhouse “method is used when direct or

circumstantial evidence is presented which tends to establish age was a

determining factor in the employment decision.”        Vaughan v. Must, Inc., 542

N.W.2d 533, 538 (Iowa 1996). The “direct evidence” requirement was recently

discussed by our Eighth Circuit:

       Direct evidence in this context [of discrimination] is not the
       converse of circumstantial evidence, as many seem to assume.
       Rather, direct evidence is evidence “showing a specific link
       between the alleged discriminatory animus and the challenged
       decision, sufficient to support a finding by a reasonable fact finder
       that an illegitimate criterion actually motivated” the adverse
       employment action. Thus, “direct” refers to the causal strength of
       the proof, not whether it is “circumstantial” evidence. A plaintiff with
       strong (direct) evidence that illegal discrimination motivated the
       employer’s adverse action does not need the three-part McDonnell
       Douglas analysis to get to the jury, regardless of whether his strong
       evidence is circumstantial. But if the plaintiff lacks evidence that
       clearly points to the presence of an illegal motive, he must avoid
       summary judgment by creating the requisite inference of unlawful
       discrimination through the McDonnell Douglas analysis, including
       sufficient evidence of pretext.
                                        21



Torgerson v. City of Rochester, 643 F.3d 1031, at 1043-44 (8th Cir. 2011)

(quoting Griffith v. City of Des Moines, 387 F.3d 733, 736 (8th Cir. 2004)).

       Thus, under “the Price Waterhouse method, the plaintiff must present

credible evidence of conduct or statements of supervisors which may be seen as

discrimination sufficient to support an inference that the discriminatory attitude

was a motivating factor.”    Vaughan, 542 N.W.2d at 538.         After the plaintiff’s

“direct evidence has been presented, the employer then bears the burden of

establishing by a preponderance of the evidence it would have made the same

decision even in the absence of the improper motive.” Id. at 538-39 (emphasis

added). The employer’s “burden of proof is proof by a preponderance of the

evidence, and is not satisfied merely by articulating a reason for the” disputed

employment actions. Id. at 539.

       Wyngarden claims statements made by Wauters and Buttel that

referenced retirement are direct evidence of age discrimination and points to the

statements, “I don’t feel you’re happy—you can retire,” “most people take a

couple of weeks each year,” “vacation puts you further behind,” and “you will be

more stressed.” When we consider those statements in light of the following: (1)

the statements were made by decision makers during the disciplinary process,

(2) the suspension occurred less than a year after the reprimand, and (3)

numerous documents showed younger employees were not disciplined for

engaging in the same action that lead to Wyngarden’s suspension, we conclude

the   record   shows   Wyngarden     presented    sufficient   direct   evidence   of
                                        22



discrimination to raise a genuine issues of material fact under the Price

Waterhouse standard.

       E. McDonnell Douglas. A plaintiff establishes a prima facie case of age

discrimination by showing three elements: 1) plaintiff is a member of a protected

class, 2) plaintiff performed his work satisfactorily, and 3) plaintiff suffered an

adverse employment action. Vaughan, 542 N.W.2d at 538. The district court,

without detailing any undisputed facts, ruled Wyngarden failed to make a prima

facia case. The court, therefore, did not consider the second and third steps of

the McDonnell Douglas analysis.

       Under the McDonnell Douglas indirect evidence, burden-shifting analytical

framework, a plaintiff “must first establish a prima facie case of age

discrimination.” Calder v. TCI Cablevision of Missouri, Inc., 298 F.3d 723, 729

(8th Cir. 2002).    Once a plaintiff establishes a prima facie case of age

discrimination, “the burden of production shifts to [the defendants] to articulate a

legitimate, nondiscriminatory reason for any adverse employment action against”

the plaintiff. Id. If defendants meet this burden, Wyngarden “must 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 age was a determinative factor in the adverse employment

decision.” See id. Wyngarden maintains, “at all times, the ultimate burden of

proof and persuasion” that the defendants discriminated against him. Torgerson,

643 F.3d at 1046.
                                          23



       The parties agree Wyngarden has proven elements one and three of the

McDonnell Douglas analysis.        Thus, the issue under the McDonnell Douglas

analysis is whether there are genuine issues of material fact concerning the

second element—whether Wyngarden performed his work satisfactorily.

Wyngarden’s performance is not measured against the standard of the “ideal

employee,” but rather is measured against “what the employer could legitimately

expect.” See Calder, 298 F.3d at 729. “The fact that an employee meets some

expectations, however, does not mean that [he] meets the standard if [he] does

not meet other significant expectations.” Id.

       On appeal, Wyngarden, a JCO since 1973, claims he performed his work

satisfactorily as indicated by a June 2008 performance report stating his work

was “commendable” and “over all meets work standards.” Defendants, however,

contend Wyngarden did not perform his work satisfactorily as shown by

Wyngarden placing juvenile S.I. into day treatment without a court order and later

manipulating an Informal Adjustment Agreement by back-dating the document.12

The disagreement among the parties concerning Wyngarden’s work performance

is a factual dispute precluding summary judgment. Whether Wyngarden acted

inappropriately in placing S.I. in a program in which the placement was approved

twice by Wauters, the district director, is a fact question for the jury.




12
    This back-dated Informal Adjustment Agreement is not in the appendix or in the
record. But, the grievance decision shows Wyngarden admitting to taking these actions
during the grievance meeting. When asked at oral argument about this document and
its whereabouts in the record, counsel for appellee/employer indicated it is not in the
record and it is an “undisputed fact.” Counsel for appellant/Wyngarden responded,
stating at oral argument that the existence of this document is a disputed fact.
                                       24



      If the fact-finder determines Wyngarden has made a prima facie case of

age discrimination, defendants have the burden of presenting a legitimate,

nondiscriminatory reason for suspending Wyngarden. The defendants contend

improper placement of [S.I.] into day treatment without a court order and later

manipulating an Informal Adjustment Agreement by back-dating the document is

a legitimate, nondiscriminatory reason for suspending Wyngarden. While the

defendants emphasize the fact Wyngarden appealed his suspension twice during

a grievance process and both times the suspension was upheld, it is important to

acknowledge Wauters signed and approved [S.I.’s] placement into day treatment

on two separate occasions.

      If the fact-finder finds the defendants had a legitimate, nondiscriminatory

reason for suspending Wyngarden, the burden of production shifts to Wyngarden

under the McDonnell Douglas analysis. If Wyngarden presents evidence that the

proffered reason for suspending him was pretextual and such evidence can

“create a reasonable inference that age was a determinative factor” for the

suspension, then Wyngarden has created a fact question for the jury.

      There are at least two ways a plaintiff may demonstrate a material
      question of fact regarding pretext. A plaintiff may show that the
      employer's explanation is unworthy of credence . . . because it has
      no basis in fact. Alternatively, a plaintiff may show pretext by
      persuading the court that a [prohibited] reason more likely
      motivated the employer. Either route amounts to showing that a
      prohibited reason, rather than the employer’s stated reason,
      actually motivated the employer’s action.

Torgerson, 643 F.3d at 1047 (internal citations and quotation marks omitted).

      Wyngarden submitted supporting documents for his claim there are at

least seven younger JCOs who were “neither investigated or disciplined for
                                         25



placement of informal adjustment juveniles in day treatment programs under

identical circumstances, with the knowledge and approval of Wauters or his

assistant.”   We conclude the differences in age between these JCOs and

Wyngarden and the fact Wyngarden received discipline while the same

supervisor did not discipline the younger JCOs, creates a factual dispute as to

whether the defendants’ asserted legitimate, nondiscriminatory reason for the

challenged adverse employment actions were pretextual.13

       Wyngarden also submitted affidavits disputing Wauters’s statements

regarding S.I.’s mother dissatisfaction with him. This evidence, combined with

the above evidence, also creates a factual dispute as to whether the defendants’

asserted legitimate, nondiscriminatory reason for the challenged adverse

employment actions were pretextual. Wyngarden has countered the defendants’

evidence with evidence sufficient to reasonably infer the reasons given for his

reprimand and suspension were a pretext for age discrimination.

       As noted above, Wyngarden provided documentation that younger JCOs

placed informal-adjustment juveniles in day treatment programs with the approval

of Wauters or his assistant.      But those documents, standing alone, do not


13
  JCO Michael Brown wrote an email in March 2011 suggesting the pretextual nature of
the adverse employment actions taken against Wyngarden:
       MR in Ottumwa again today. Compared to the rest of us, [Wyngarden] is
       surely being harassed, because he is being supervised so much closer.
       Ironic, he’s the only JCO I’ve known in this district who is willing to go wa-
       a-a-y beyond job requirements to help kids and families. The rest of us
       are only going to do the minimum. They’re persecuting him because he
       has exposed lies is all. Used to be integrity meant something. Wonder
       what would have happened if JW supervised Kathy Skewes when she
       was making a mockery of the Judicial Branch, and making a mockery of
       him? We’re all paying the price for that, still to this day. Hey did anything
       happen to Troy for exploding in front of the Judge in chambers and
       throwing his book at a defense attorney?
                                      26



indicate whether those JCOs had court orders permitting placement of these

juveniles into treatment. Thus, the documents create another factual issue that

precludes summary judgment.

       For the foregoing reasons, based on the record provided, we conclude the

district court erred in granting summary judgment. On the record as a whole,

there are genuine fact issues for trial on the ultimate question of age

discrimination.

       REVERSED AND REMANDED.
