                     United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 06-1279
                                  ___________

Lucille K. Melvin,                     *
                                       *
            Appellant,                 *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Southern District of Iowa.
Car-Freshener Corporation,             *
                                       *
            Appellee.                  *
                                   __________

                             Submitted: June 16, 2006
                                Filed: July 12, 2006
                                 ___________

Before BYE, LAY, and RILEY, Circuit Judges.
                              ___________

RILEY, Circuit Judge.

    Lucille K. Melvin (Melvin) appeals from the district court’s1 order granting
summary judgment to Car-Freshener Corporation (Car-Freshener) on Melvin’s
common law claim of retaliatory discharge in violation of public policy. We affirm.




      1
      The Honorable Thomas J. Shields, United States Magistrate Judge for the
Southern District of Iowa, to whom the case was referred for final disposition by
consent of the parties pursuant to 28 U.S.C. § 636(c).
I.     BACKGROUND
       Car-Freshener, a company that manufactures car air fresheners including the
ubiquitous “Little Trees” freshener, hired Melvin in 1996 as an at-will employee to
work in its DeWitt, Iowa, plant. In November 2002, Car-Freshener experienced a
downturn in business and laid off approximately 50% of its workforce. Due to
production demands, staff limitations resulting from the layoffs, and employee
vacations during the holiday season, Car-Freshener reassigned Melvin from her packer
position to a position on the staple line. Melvin informed Sue Patchin (Patchin), Car-
Freshener’s DeWitt plant production coordinator, and Chris Walters (Walters), Car-
Freshener’s DeWitt plant personnel manager, that she had suffered a workplace injury
to her shoulder in 1998 while working on the staple line and had been restricted from
that work.2 In response, Patchin said “[t]he only job opening is the staple line.”
Patchin told Melvin she could not change Melvin’s assignment and Melvin could
work on the staple line or be laid off.

       Melvin agreed to work on the staple line, and on January 21, 2003, on her fifth
non-consecutive day of such work, Melvin reported to her immediate supervisor she
was experiencing shoulder pain. Upon learning of Melvin’s complaint, Walters sent
Melvin for an examination by a physician, who concluded Melvin should be restricted
from working on the staple line, but could continue to work as a packer. Walters sent
Melvin home to avoid risking further injury, with instructions to return the next day.
Walters later called Melvin at home and informed her she was being temporarily laid
off because there was no work available in the packing department. Before Melvin’s
injury report and layoff, three other laid off employees were called back to work in the
packing department. Melvin testified she understood she was laid off because she
“was not a diversified person.”




      2
       In January 1999, Car-Freshener accommodated Melvin’s restriction by
transferring her to the packing department.

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       Car-Freshener subsequently changed Melvin’s status from temporary layoff to
workers’ compensation because Melvin was eligible for workers’ compensation
temporary disability benefits. Melvin received workers’ compensation benefits from
January 21, 2003, through March 10, 2003, at which point she was placed on six-
month temporary layoff. Melvin never returned to work for Car-Freshener. On
September 10, 2003, in accordance with Car-Freshener’s company policy, Melvin’s
layoff became permanent, the equivalent of a termination. Melvin filed a notice
seeking workers’ compensation benefits on August 12, 2004.

      Melvin filed suit in Iowa state court on November 19, 2004, alleging she had
been terminated in retaliation for suffering a work related injury and filing a workers’
compensation claim in violation of public policy. Car-Freshener removed the case to
federal court, and moved for summary judgment. The district court granted Car-
Freshener summary judgment, finding no genuine issues of material fact whether
Melvin’s termination and her filing a workers’ compensation claim were causally
connected. Melvin appeals.

II.    DISCUSSION
       We review de novo a grant of summary judgment, applying the same standard
as the district court. Barrera v. Con Agra, Inc., 244 F.3d 663, 665 (8th Cir. 2001). We
must determine “whether the record, viewed in the light most favorable to the
non-moving party, shows there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law.” Id.

     This is a diversity action, and Iowa law governs issues of substantive law. Id.
As we summarized in Barrera,

      In Iowa, an employer’s ability to discharge an employee is limited when
      the discharge clearly violates the well-recognized and defined public
      policy of the state. Discharge in retaliation for filing a worker’s
      compensation claim clearly violates Iowa’s public policy. To prevail on

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      a retaliatory discharge claim, [Melvin] must establish (1) that [s]he
      engaged in a protected activity; (2) that [s]he suffered an adverse
      employment action; and (3) that there existed a causal connection
      between the protected activity and [her] termination. The causation
      standard in a common-law retaliatory discharge case is high, however,
      and the employee’s engagement in protected conduct must be the
      determinative factor in the employer’s decision to take adverse action
      against the employee.

Id. (citations, quotations, and alterations omitted). The parties agree the only issue on
this appeal is whether Melvin presents sufficient evidence to create a jury question
regarding whether a causal connection exists between Melvin’s workers’
compensation claim filing and her termination.

        We agree with the district court’s conclusion Melvin fails to demonstrate any
genuine issue of material fact to establish a causal connection between her filing a
workers’ compensation claim and her termination. Like the plaintiff in Barrera,
Melvin relies extensively, and virtually exclusively, on the temporal proximity
between the two events, arguing “the temporal element . . . is compelling.” “Under
Iowa law, the fact that [Melvin] was fired after filing a workers’ compensation claim
is not alone sufficient to prove causation. Iowa law demands, rather, that [Melvin]
produce evidence demonstrating that [her] workers’ compensation claim was the
determinative factor in [Car-Freshener]’s decision to terminate [her] employment.”
Id. at 665-66 (citation omitted). Melvin has failed to present evidence demonstrating
the existence of a genuine issue of material fact that her filing or threat of filing a
workers’ compensation claim was the determinative factor in her termination other
than the close proximity in time between her injury and being placed on temporary
layoff. As a matter of Iowa law, this is insufficient to establish a prima facie case of
retaliatory discharge.




                                          -4-
       Melvin attempts to cure this defect by claiming Car-Freshener’s failure to place
Melvin in its Temporary Alternative Worker Opportunities Program for injured
workers demonstrates Car-Freshener’s termination decision was causally connected
to her workers’ compensation claim. Melvin ignores the program’s language, which
states alternative work is provided “whenever possible,” and the undisputed evidence
is Melvin’s assignment under the program was not possible, given Car-Freshener’s
business downturn and lack of work. Moreover, Melvin did not have any employment
contract and was an at-will employee.

       Finally, Melvin compares her 1998 work related shoulder injury and her
assignment to the packing department in 1999 with her January 21, 2003, identical
shoulder injury and layoff, claiming the comparison somehow supports a causally
related retaliation in 2003. The comparison ignores the significant differences
between Car-Freshener’s business and its workforce needs in 1999 and in 2003. Thus,
the comparison fails.

III. CONCLUSION
     For the reasons stated, we affirm the district court’s order granting summary
judgment in favor of Car-Freshener.

LAY, Circuit Judge, dissenting

       I respectfully dissent. Melvin has presented sufficient evidence from which a
reasonable jury could infer that she was terminated because her injury qualified her
for workers’ compensation benefits. Although temporal proximity between protected
conduct and discharge is insufficient to establish retaliation under Iowa law, Hulme
v. Barrett, 480 N.W.2d 40, 43 (Iowa 1992), temporal proximity coupled with another
aggravating factor, however undefined, can support an inference of retaliation for
purposes of summary judgment. See Walters v. United States Gypsum Co., 537
N.W.2d 708, 712 (Iowa 1995).

                                         -5-
       Here, Melvin was laid off the same day she qualified for workers’ compensation
benefits. Plant production coordinator Chris Walters stated Melvin was laid off
because there were no positions available in the pack department. However, Car-
Freshener rehired three individuals to work in the pack department just one week prior
to Melvin’s layoff. Moreover, Walters later stated Melvin was not placed in the pack
line due to concerns it would further aggravate her injuries.

       Car-Freshener emphasizes its economic downturn as the reason for Melvin’s
termination and the majority concludes Melvin cannot establish her engagement in a
protected activity was the determinative factor in this case. However, I submit the
inconsistencies in Car-Freshener’s explanations, coupled with the timing of Melvin’s
termination, are enough evidence from which a reasonable jury could infer Melvin
was terminated because she qualified for workers’ compensation benefits. “A factor
is determinative if it is the reason that ‘tips the scales decisively one way or the other,’
even if it is not the predominate reason behind the employer’s decision.” Teachout v.
Forest City Cmty. Sch. Dist., 584 N.W.2d 296, 302 (Iowa 1998) (emphasis added)
(quoting Smith v. Smithway Motor Xpress, Inc., 464 N.W.2d 682, 686 (Iowa 1990)).

       Too many courts in this circuit, both district and appellate, are utilizing
summary judgment in cases where issues of fact remain. This is especially true in
cases where witness credibility will be determinative. In these instances, a jury, not
the courts, should ultimately decide whether the plaintiff has proven her case.
Summary judgment should be the exception, not the rule. It is appropriate “only . . .
where it is quite clear what the truth is, . . . for the purpose of the rule is not to cut
litigants off from their right of trial by jury if they really have issues to try.” Poller v.
Columbia Broad. Sys., Inc., 368 U.S. 464, 467 (1962) (emphasis added) (citation and
internal quotations omitted).

      It is undeniable that summary judgment is a valuable tool, the use of which
allows overextended courts to remove cases that lack merit from their dockets. See
                                       -6-
Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). However, in accomplishing this
goal, we have an obligation not to “overlook[] considerations which make . . .
summary judgment an inappropriate means to that very desirable end.” Sartor v.
Arkansas Natural Gas Corp., 321 U.S. 620, 627 (1944). As Justice Black explained,

      The right to confront, cross-examine and impeach adverse witnesses is
      one of the most fundamental rights sought to be preserved by the
      Seventh Amendment provision for jury trials in civil cases. The
      advantages of trial before a live jury with live witnesses, and all the
      possibilities of considering the human factors, should not be eliminated
      by substituting trial by affidavit and the sterile bareness of summary
      judgment.

Adickes v. S.H. Kress & Co., 398 U.S. 144, 176 (1970) (Black, J., concurring).

       I express no opinion as to whether Melvin would ultimately be able to convince
a jury in this case. However, she and all other similarly-situated plaintiffs should be
afforded the opportunity to do so.
                        ______________________________




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