                IN THE SUPREME COURT OF IOWA
                            No. 51 / 07–0573

                           Filed June 6, 2008


KATHY WEDDUM,

      Appellee,

vs.

DAVENPORT COMMUNITY SCHOOL DISTRICT,

      Appellant.


      Appeal from the Iowa District Court for Scott County, Nancy S.

Tabor, Judge.



      School district seeks discretionary review of district court decision

denying motion for summary judgment in an age-discrimination action.

REVERSED AND REMANDED.



      William C. Davidson, Mikkie R. Schiltz, and Wendy S. Meyer of

Lane & Waterman LLP, Davenport, for appellant.


      Dorothy A. O’Brien, Davenport, for appellee.



      Edward M. Mansfield of Belin Lamson McCormick Zumbach Flynn,

PC, Des Moines, for amicus curiae Iowa Association of School Boards.
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STREIT, Justice.

      A school district denied a teacher’s application for early retirement

incentives   because    she   did   not   meet   the   plan’s   minimum   age

requirement. She sued, arguing the school district’s decision violated the

Iowa Civil Rights Act’s prohibition on age discrimination. She and the

school district brought cross motions for summary judgment. Both were

denied. We granted the school district’s motion for interlocutory appeal
and now reverse.       The district court should have granted the school

district’s motion because the early retirement incentive plan falls within

an express exception to the general prohibition on age discrimination.

      I.     Facts and Prior Proceedings.

      Kathy Weddum had been a math teacher with the Davenport

Community School District since 1972. The school district implemented

an early retirement incentive plan for the 2004-2005 school year. The

plan provided a purpose statement:

      The purpose of this plan is to provide the District’s
      employees with the option and opportunity for early
      retirement from their employment with the District. This
      Early Retirement Incentive Plan is designed to show the
      District’s appreciation for the services an employee has
      rendered to the District, to aid the employee in their
      transition from public service to retirement, and to save
      District funds through a reduction in staff and/or
      replacement savings.

      To be eligible for the plan, an employee was required to satisfy the

following criteria:


      (1)    reached age fifty-five or older by June 30, 2005;

      (2)    completed at least twenty years of continuous
             contracted service with the district by June 30, 2005;

      (3)    worked at least a minimum of six hours per day or had
             a contract of at least 75% full time employment;
                                     3

      (4)   submitted an application for participation in the plan
            to the school board prior to January 31, 2005; and

      (5)   agreed to retire at, and not before, the conclusion of
            the contract or assignment year for 2004-2005 and no
            later than June 30, 2005.

      In return for meeting the terms of the plan, an employee received

the following benefits:


      (1)   the lesser of $25,000 or 50% of the employee’s 2004-
            2005 salary to be paid into a 403(b) or Health Care
            Savings Plan over five years; and

      (2)   continued participation of current coverage in a
            medical plan by employee’s payment of the monthly
            premium.

      In late December 2004, Weddum submitted her application for

early retirement. She satisfied the years-of-service requirement but did

not reach the age of fifty-five until September 17, 2005, almost three

months after the deadline. The school district denied Weddum’s request

in a January 6 email.

      On January 19, the school district notified employees of its

decision to expand the early retirement plan to employees who had

completed at least fifteen years of continuous contracted service.     The

remaining eligibility requirements of the plan were unchanged.         The

school district later extended the application deadline.

      On January 31, Weddum wrote a letter to the school district

indicating her intent to retire at the end of the 2005 school year. The

letter stated “I have decided to retire and wish to resign from teaching in

the Davenport Community School District at the end of the 2004-2005

school year.” The school board accepted her resignation on February 14

but refused to categorize her departure as a retirement.
                                     4

      After satisfying the administrative requirements, Weddum filed this

lawsuit contending the school district’s denial of early retirement benefits

violated the age discrimination prohibition found in the Iowa Civil Rights

Act (ICRA). Both Weddum and the school district moved for summary

judgment.    Weddum argued the school district’s early retirement plan

amounted to overt and arbitrary age discrimination. Alternatively, she

argued summary judgment should not be granted in favor of the school
district because the district’s treatment of other employees created a

question of fact as to its motives for excluding Weddum from the plan.

The school district argued summary judgment should be granted in its

favor because its early retirement plan is consistent with the exception

for retirement plans found in the ICRA.

      The court denied both motions, ruling there was a material

question of fact with respect to the school district’s motives that should

be decided by a jury.     We granted the school district’s request for an

interlocutory appeal.     We subsequently dismissed Weddum’s cross

appeal as untimely. For the reasons that follow, we reverse the decision

of the district court and remand for the court to enter judgment in favor

of the school district.
      II.    Scope of Review.

      We review a district court’s ruling on a motion for summary

judgment for correction of errors at law. Stewart v. Sisson, 711 N.W.2d

713, 715 (Iowa 2006). Summary judgment is appropriate if, viewing the

evidence in the light most favorable to the nonmoving party, “the

pleadings, depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” Iowa R. Civ. P. 1.981(3). An issue of fact
                                            5

is “material,” for summary judgment purposes, “only if ‘the dispute is

over facts that might affect the outcome of the suit, given the applicable

law.’ ” Lewis v. State ex rel. Miller, 646 N.W.2d 121, 124 (Iowa Ct. App.

2002) (quoting Fouts ex rel. Jensen v. Mason, 592 N.W.2d 33, 25 (Iowa

1999)).       “When the only controversy concerns the legal consequences

flowing from undisputed facts, summary judgment is the proper remedy.”

Bob Zimmerman Ford, Inc. v. Midwest Auto. I, L.L.C., 679 N.W.2d 606,
608 (Iowa 2004).

       III.     Merits.

       Weddum’s lawsuit contends the school district violated the ICRA

when it denied her early retirement benefits because she did not satisfy

the plan’s minimum age requirement—i.e., she was discriminated

against because she was not old enough.1                        In considering age

discrimination claims brought under the ICRA, we turn to federal law

interpreting the Age Discrimination in Employment Act (ADEA).                        See

McMannes v. United Rentals, Inc., 371 F. Supp. 2d 1019, 1027 (N.D. Iowa

2005). In General Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581,

584–85, 124 S. Ct. 1236, 1239, 157 L. Ed. 2d 1094, 1103 (2004), the

United States Supreme Court held the ADEA does not prohibit “reverse
age discrimination.”          It found the Act’s prohibition of age-based

discrimination only forbade employers from favoring younger workers at

the expense of older workers. Gen. Dynamics Land Sys., Inc., 540 U.S.

at 600, 124 S. Ct. at 1248–49, 157 L. Ed. 2d at 1113 (“We see the text,

structure, purpose, and history of the ADEA, along with its relationship


       1 Weddum also alleges the district court’s denial of early retirement benefits was
unconstitutional. However, because the district court did not rule on this issue, we will
not address it for the first time on appeal. DeVoss v. State, 648 N.W.2d 56, 63 (Iowa
2002) (holding the court will not consider a substantive or procedural issue for the first
time on appeal except for evidentiary rulings).
                                       6

to other federal statutes, as showing that the statute does not mean to

stop an employer from favoring an older employee over a younger one.”).

      Weddum argues the ICRA is more expansive because it prohibits

age discrimination against all employees in contrast to the federal act

which only prohibits age discrimination against employees age forty

years or older.   Compare Iowa Code § 216.6(1)(a), with 29 U.S.C. §

623(a)(1), 631(a). Indeed we recognized the ICRA is “age-neutral” in a
case brought by a thirty-nine year old employee. Hulme v. Barrett, 449

N.W.2d 629, 631–32 (Iowa 1989). However, in Hulme the plaintiff did not

allege she was being discriminated against because she was too young.

Rather, she alleged her employer violated the ICRA by reducing her

hours instead of the hours of newer, younger employees who were being

paid lower wages. Id. Thus, it remains an open question whether the

ICRA prohibits an employer from favoring older workers at the expense of

younger workers because of their age. We need not determine whether

the ICRA contemplates a cause of action for reverse age discrimination in

other contexts because we find the ICRA plainly allows early retirement

plans with minimum age requirements. Cf. Davis v. City of Waterloo, 551

N.W.2d 876, 881 (Iowa 1996) (stating ICRA protects Caucasians from
discrimination based on race as much as it does African-Americans and

members of other racial minorities).

      Chapter 279 of the Iowa Code governs the powers and duties of

school boards. Iowa Code section 279.46 expressly gives school boards

the power to offer early retirement incentives to its employees

conditioned upon reaching a minimum age. It states:

      The board of directors of a school district may adopt a
      program for payment of a monetary bonus, continuation of
      health or medical insurance coverage, or other incentives for
      encouraging its employees to retire before the normal
                                              7
       retirement date as defined in chapter 97B. . . . The age at
       which employees shall be designated eligible for the program
       shall be at the discretion of the board.

(Emphasis added.)           While the ICRA makes it generally unlawful to

discriminate against an employee because of the employee’s age, see

Iowa Code § 216.6(1)(a),2 the Act provides a specific exception for
retirement plans. Iowa Code section 216.13 states:

       The provisions of this chapter relating to discrimination
       because of age do not apply to a retirement plan or benefit
       system of an employer unless the plan or system is a mere
       subterfuge adopted for the purpose of evading this chapter.

       A “subterfuge” is a “ ‘scheme, plan, stratagem, or artifice of

evasion.’ ” Pub. Employees Ret. Sys. of Ohio v. Betts, 492 U.S. 158, 167,

109 S. Ct. 2854, 2861, 106 L. Ed. 2d 134, 148 (1989) (quoting United Air

Lines, Inc. v. McMann, 434 U.S. 192, 203, 98 S. Ct. 444, 450, 54 L. Ed.

2d 402, 413 (1977)); see also Merriam-Webster’s Collegiate Dictionary

1171 (10th ed. 2002) (defining “subterfuge” as “a deceptive device or

stratagem”).      There is no evidence in the record to suggest the school

district acted with age-related animus toward Weddum.                        Nor is there

evidence to suggest Weddum was otherwise being singled out.                          To the

contrary, two other employees did not qualify for the early retirement

plan because they were also too young.

       Moreover, the school district provided a legitimate reason for

setting the minimum age requirement. According to the school district,

the early retirement program is primarily driven by financial savings.

Teachers’ salaries are paid out of the school district’s general fund.

       2  Iowa Code § 216.6(1)(a) states “[i]t shall be an unfair or discriminatory practice
for any . . . [p]erson to refuse to hire, accept, register, classify, or refer for employment,
to discharge any employee, or to otherwise discriminate in employment against any
applicant for employment or any employee because of the age . . . of such applicant or
employee, unless based upon the nature of the occupation.”
                                         8

Replacing a senior teacher with a more junior teacher results in a cost

savings because a teacher’s salary is based on years of experience.

Additionally, chapter 279 allows school districts to pay early retirement

incentives out of their “management levy” funds (i.e. local tax revenues).

See Iowa Code § 279.46. This funding avenue for the incentives frees up

more money in the school districts’ general funds for other needs.

However, in order to utilize management levy funds to pay early
retirement incentives, the employees receiving the funds must be

between the ages of fifty-five and sixty-five at the time of their

retirement.3 Id. Thus, the school district in this case was not willing to

extend its early retirement plan to teachers who were not at least fifty-

five years old on June 30 because the cash incentive would have to come

out of the general fund if it did so.

      After the plan was originally offered, fewer than expected

employees chose to retire.        The school district expanded the pool of

employees qualified for the plan by lowering the years-of-service

requirement from twenty years to fifteen years. The school district chose

this route to make more employees eligible because the use of

management levy funds is not dependent upon how many years the
employees worked.

      Weddum notes the school district offered a similar early retirement

incentive plan during the previous school year which required employees

to be at least fifty-five by September 30.4              Weddum’s birthday is

September 17. Had the school district used the same date in the year

Weddum retired, she would have been eligible for the early retirement


      3  The school district’s plan does not have a maximum retirement age.
      4 The school district chose the later cut-off date the year before in order to
induce a teacher with performance problems to accept the early retirement incentive.
She had a September birth date.
                                      9

benefits plan.   However, Iowa law expressly gives school districts the

discretion to determine the age upon which employees are eligible for

early retirement benefits.    Iowa Code § 279.46.        School districts are

under no obligation to offer the same plan (or any plan) from year to

year.

        Our conclusion is also supported by federal case law. The ADEA

provides a safe harbor provision for “voluntary early retirement incentive
plan[s] consistent with the relevant purpose or purposes of this chapter.”

See 29 U.S.C. § 623(f)(2)(B)(ii). Recently, the eighth circuit held a plan

similar to the one at issue here fell within this exception. Morgan v. A.G.

Edwards & Sons, Inc., 486 F.3d 1034 (8th Cir. 2007). There, employees

age fifty or older with at least fifteen years of service were given one year’s

salary and other benefits in return for retiring. Id. at 1037. The Morgan

court distinguished one of its earlier decisions upon which Weddum

relies. See Jankovitz v. Des Moines Indep. Cmty. Sch. Dist., 421 F.3d 649

(8th Cir. 2005). In Jankovitz, the eighth circuit found an early retirement

incentive plan violated the ADEA because benefits were cut off by an

upper age limit of sixty-five. Id. at 655 (“The basis for our conclusion

that the amended [early retirement incentive plan] is inconsistent with a
purpose of the ADEA is the fact that the amount of available early

retirement benefits drops to zero upon an employee’s attainment of the

age of 65.”); see also Auerbach v. Bd. of Educ. of the Harborfields Cent.

Sch. Dist., 136 F.3d 104, 114 (2d Cir. 1998) (“An early retirement

incentive plan that withholds or reduces benefits to older retiree plan

participants, while continuing to make them available to younger retiree

plan participants so as to encourage premature departure from

employment by older workers conflicts with the ADEA's stated purpose to

prohibit arbitrary age discrimination in employment.”).          The Morgan
                                    10

court found the early retirement incentive plan lawful because it did not

include a maximum age requirement. Morgan, 486 F.3d at 1042.

      Similarly, the school district’s plan in the present case “offered the

same incentives to all eligible persons and did not employ an age-based

phase-out where plan benefits decreased over time or were reduced to

zero upon a certain age in order to encourage employees to participate in

the plan.” Id. Moreover, there was no evidence to suggest the plan was
“a mere subterfuge adopted for the purpose of evading” the ICRA. Iowa

Code § 216.13. The school district was entitled to a judgment in its favor

as a matter of law.

      IV.   Conclusion.

      In summary, the school district’s early retirement incentive plan

fell squarely within the ICRA exclusion for retirement plans. Therefore, it

was error to deny the school district’s motion for summary judgment.

      REVERSED AND REMANDED.
