                   IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0432
                             Filed October 12, 2016


BEVERLY COUCH,
    Plaintiff-Appellant,

vs.

IOWA DEPARTMENT OF HUMAN SERVICES,
     Defendant-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Douglas F. Staskal,

Judge.



      An employee appeals the order granting summary judgment in favor of her

employer on her claims of employment discrimination and harassment claims.

REVERSED AND REMANDED WITH DIRECTIONS.




      Leonard Bates, Thomas A. Newkirk, and Jill Zwagerman of Newkirk

Zwagerman, P.L.C., Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Barbara E.B. Galloway, Assistant

Attorney General, for appellee.



      Heard by Potterfield, P.J., and Doyle and Tabor, JJ.
                                        2


DOYLE, Judge.

       Beverly Couch claims her former employer, the Iowa Department of

Human Services (DHS), engaged in employment discrimination and harassment

against her based on her race and in retaliation for her participation in a civil

rights lawsuit against the State of Iowa. She appeals from the district court order

granting summary judgment in favor of the DHS. Because the evidence raises

several genuine issues of material fact, we reverse and remand to the district

court for further proceedings.

       I. Background Facts.

       Couch, whose position with the Iowa Department of Economic

Development was terminated due to a budget reduction, was recalled for work

with the DHS as an “Income Maintenance Worker 2” (IMW2) in the Child Care

Assistance Unit (CCA). When he was notified of Couch’s eligibility for recall,

DHS Personnel Manager Chris Silberhorn recognized her name as one of the

class representatives in a lawsuit that alleged the State of Iowa’s employment

practices had a discriminatory effect on African-American employees. Silberhorn

was the DHS’s representative in the lawsuit, which was scheduled to begin

weeks after Couch’s start on September 2, 2011. Before accepting the position,

Couch informed Silberhorn that she would need time off to attend trial.

       Immediately upon Couch’s recall, DHS Supervisor Tracy Williams

overheard Silberhorn informing someone that Couch had issues with filing

discrimination complaints and suing the State in the past, but that “this time it

wouldn’t be an issue because he was placing her under [the direct supervision of]

Angela Madison,” who is African American. Silberhorn also made statements
                                        3


about Couch’s involvement in the lawsuit directly to Williams, who is also African

American.    Those statements left Williams with the impression that Couch

“wasn’t going to get a fair chance” in her position with the DHS.          Couch

eventually learned of Silberhorn’s statements from another employee.

      Couch used personal leave to attend trial on September 12, 13, and 14 as

she had planned. However, on September 14 Couch received a subpoena to

attend trial effective “until released,” and she informed both Silberhorn and

Madison of the subpoena and her need to take leave without pay “for the

duration of trial if necessary.”   After receiving the request, Silberhorn asked

Madison for her supervisory notes regarding counseling Madison for being eight

minutes late during her first week of work.      Silberhorn also complained to

Pamella Stevenson, a human resources associate, that Couch had said she

would need a few days off but then wanted to take leave for the entire trial, and

that he was told to grant the request. Silberhorn wrote: “We are not happy, about

the situation, but I have learned we will not be posting anything to external

without posting internal first and taking a close look at our options.”     When

Stevenson expressed concern that Couch would use her absence during trial as

an excuse if she did not meet her probationary expectations, Silberhorn

responded, “I won’t let her—[Madison] is going to train [Couch] herself.”

Silberhorn made a similar comment during a meeting attended by Madison and

Williams, stating he was glad Madison was supervising Couch because “there

wouldn’t be an issue when she was let go.” Williams interpreted his statement to
                                          4


mean that Couch would not be able to complain of discrimination because both

she and Madison are African American.1

       In the weeks after Couch began working for the DHS, Williams continued

to overhear Silberhorn “frequently ma[king] inappropriate comments about the

class action lawsuit” that Williams believed “clearly expressed resentment

that . . . black claimants filed a lawsuit against his employer.” Silberhorn also

made disparaging comments about Couch’s work ethic and performance.

Williams reported the comments to Service Area Supervisor Denise Gonzalez,

Silberhorn’s supervisor, on September 27, 2011. The following day, Gonzalez

told Silberhorn that his comments were “inappropriate and [were] not

acceptable,” but no disciplinary action was taken.

       Trial ended on October 2, 2011, and Couch returned to work feeling

“shameful,” “mentally distressed,” and “devastated” because she had learned of

Silberhorn’s comments to others, which she believed “belittled” her.           Couch

testified that based on his comments, she knew Silberhorn “had a vendetta”

against her and “had his purpose in mind . . . to get rid of [her].” Couch had

difficulty focusing on her work as a result.

       On October 12, 2011, in response to Madison’s question about why she

had made errors in calculating child-support income, Couch complained about

her lack of training after being in trial. On the same day, Couch also expressed

concern to Madison about the comments Silberhorn had made. Madison told


1
  Silberhorn claims his comment did not pertain to the women’s race, but rather to his
belief Madison was the more “easy going” of the two supervisors in the child care
assistance unit. However, Couch asserts Madison was the “toughest” supervisor, and
there is record evidence that could support such a finding.
                                         5


Couch that she was receiving “on the job” training, and that she did not want to

hear about Silberhorn’s comments because it was “personal,” not a work matter.

Couch felt Madison “blew off” her concerns. The record shows that although

income maintenance workers typically receive standard training within two weeks

of starting employment, Couch did not begin training until November 7, 2011—

more than two months after her employment began and more than one month

after the trial concluded.

       By December 2011, DHS managers, including Silberhorn, were discussing

Couch’s termination.2        On December 7, 2011, Gonzales sent an email to

Kimberly Anderson, the income maintenance administrator, with the subject

“Beverly Couch.” In the email, Gonzales noted the IMW2 job description did not

list performance goals for the position and that there was insufficient data to

establish an average performance for the unit at that time.      Gonzales asked

Anderson how Couch was doing compared to other new employees and

wondered, “How can I establish that [Couch] is not meeting the expectations if I

do not know how others do?” Anderson responded that there were no other

probationary employees at that time but offered to obtain the data of an income

maintenance worker who had recently transferred to the child care assistance

unit for comparison. She also noted Madison had “stated that she has let other

probationary employees go in the past for less” and asked Gonzales if they could

“use that as an argument” to terminate Couch.

2
 The evidence indicates that it typically takes new employees between three and six
months to learn the job duties of an income maintenance worker. Couch’s termination
was discussed no later than three months after she began the job. When the time she
was absent for trial is deducted, Couch had only been in the position two months by
December 2011 and had received formal training less than one month before.
                                           6


       Though there is no direct evidence of what precipitated it, Silberhorn

emailed Gonzales a document named “Return to recall” on December 13, 2011,

stating: “You had asked about this template a while ago.” The document, a draft

of a letter bearing the date of November 17, 2011,3 with Madison’s name and title

listed below the signature line, reads as follows:

              Dear ???;
              This letter is to inform you that effective today you are being
       returned to the recall list for your failure to successfully complete
       the probationary period following recall.
              Even after completion of training, your error rate is not at the
       level where we are confident that you are able to perform the duties
       of the position of Income Maintenance Worker 2. You continue to
       make mistakes with even simple mathematical issues such as
       calculating an average weekly pay amount or determining whether
       or not someone is in school.
              In accordance with the (AFSCME or UE/IUP) collective
       bargaining agreement, your name will be returned to the recall list
       for a period of two years.
              You have no right of appeal of this action.
              If you have any questions, or if you need further information,
       please contact me.

Although the letter is not addressed to Couch, the details set forth indicate it was

drafted in anticipation of her termination. Madison testified she did not recall ever

signing a termination letter and had not requested that one be drafted.

       On December 27, 2011, Madison drafted an email intended for Anderson

with the subject line “Beverly Couch— Training, Case Read Results, and Specific

Errors Write-Up.” Madison stated she was attaching information that had been

requested and concluded, “I hope this covers everything.            If I need to make


3
  The data embedded in the file shows it was created on November 2, 2011. Assuming
the document was created on this date in the same form it was emailed to Gonzales, as
Couch argues, the document is significant because it was created before Couch
received training for the IMW2 position, and the letter was dated just one week after her
training would have been scheduled to end.
                                         7


adjustments, please let me know.” The attached document, which is ten single-

spaced pages in length, detailed forty-nine specific errors found in Couch’s case

readings and stated Couch’s accuracy rating was fifty-nine percent, while the

accuracy rating for the entire unit was seventy-four percent.4              Madison

inadvertently sent the email to Couch, who replied to again express her belief

that she had not been adequately trained for the IMW2 position.

       Couch submitted a complaint to DHS Director Charles Palmer on January

2, 2012, alleging she had been prejudged based on her race. Couch recounted

the comments Silberhorn made about her and noted she was unaware of what

action, if any, the DHS had taken regarding his comments. She also alleged her

training as an IMW2 was inadequate.5         Also that month, Couch also had a

meeting with Gonzales and Anderson after suffering an anxiety attack following a

conversation with Madison.        At that meeting, Couch detailed what she

considered to be the deficiencies in her training and the difficulties she was

having with Madison.     Anderson later responded in a letter, setting out nine

“concerns” Couch had raised and refuting each.

       Couch again complained about Madison’s treatment of her, stating that

several co-workers had commented that Madison treated her differently than

other employees, echoing this sentiment, and explaining that Madison’s

treatment made her feel “very uncomfortable.” On January 25, 2012, Gonzalez
4
  All cases assigned to probationary workers are reviewed by a supervisor. Madison
testified she had a goal of reviewing at least one case per month for the workers who
were not on probation. The accuracy rating of the income maintenance worker who
transferred to the unit was seventy-seven percent, higher than the department’s
average.
5
  In an email on January 12, 2012, Chief Financial Officer Jean Slaybaugh told Couch:
“Rest assured that we are proceeding with review of the situation you contacted me
about on January 2nd.” Couch was terminated before the investigation was concluded.
                                          8


placed Couch on administrative leave in order to “review everything that was

going on” with Couch’s complaints. Gonzales determined that Couch was unable

to perform the essential functions required to be an IMW2 and, on January 30,

2012, terminated Couch for failing to successfully complete probation.

       Couch filed a petition alleging the DHS had subjected her to discrimination

and harassment based on her race and in retaliation against her for her

involvement in a civil rights lawsuit against the State.       The DHS denied the

allegations. Following a motion by the DHS, the district court granted summary

judgment in favor of the DHS on each of Couch’s claims. Couch appeals.

       III. Scope and Standard of Review.

       We review the district court’s grant of summary judgment for correction of

errors at law. See Barker v. Capotosto, 875 N.W.2d 157, 161 (Iowa 2016). To

succeed on a motion for summary judgment, the moving party must show the

material facts are undisputed and, applying the law to those facts, the moving

party as entitled to judgment as a matter of law. See id.; Nelson v. Lindaman,

867 N.W.2d 1, 6 (Iowa 2015). We review the facts in the light most favorable to

the nonmoving party, which is entitled to every legitimate inference that may be

drawn from the record. See Nelson, 867 N.W.2d at 6. A question of fact exists if

the evidence could lead reasonable minds to differ on how an issue should be

resolved. See Hills Bank & Trust Co. v. Converse, 772 N.W.2d 764, 771 (Iowa

2009). “Our review ‘is limited to whether a genuine issue of material fact exists

and whether the district court correctly applied the law.’” Id. (citation omitted).
                                             9


       IV. Analysis.

       Couch alleges the DHS discriminated against her with respect to the terms

and conditions of her employment and subjected her to harassment based on her

race and in retaliation for her prior involvement in a civil rights case against the

State. She argues the district court erred in granting summary judgment in favor

of the DHS because there are genuine issues of material fact in dispute.

           A. Discrimination Claims.

       Iowa law prohibits terminating or discriminating against an employee

based on the employee’s race or in retaliation for lawfully opposing discriminatory

practices or filing a proceeding under the ICRA.                       See Iowa Code

§§ 216.6(1)(a), 216.11(2) (2011). Couch alleges she was discriminated against

both based on her race and in retaliation for her involvement in the class-action

lawsuit against the State. 6

       To succeed on her discrimination claims, Couch must show she suffered

an adverse employment action. See Farmland Foods, Inc. v. Dubuque Human

Rights Comm’n, 672 N.W.2d 733, 741 (Iowa 2003). An adverse action is one

that detrimentally affects the terms, conditions, or privileges or employment. See

Channon v. UPS, 629 N.W.2d 835, 862 (Iowa 2001). Although “minor changes

6
  The DHS argues Couch waived error on this claim because she did not raise it before
the ICRC and therefore did not exhaust her administrative remedies. See Keokuk Cty.
v. H.B., 593 N.W.2d 118, 122 (Iowa 1999). However, we construe the civil rights
complaint filed with the ICRC liberally to further the remedial purpose of the civil rights
law. See McElroy v. State, 703 N.W.2d 385, 390 (Iowa 2005). Therefore, Couch has
exhausted administrative remedies if the allegations contained in her petition are like or
reasonably related to the substance of charges brought before the ICRC. See id. We
find they are. In her complaint, Couch alleged “failure to train, . . . harassment, . . . and
termination due to her race.” She also alleged the DHS retaliated against her “by means
of failure to train and termination.” Because the allegations in her petition are
reasonably related to the charges she brought in her ICRC complaint, Couch exhausted
her administrative remedies.
                                          10


in working conditions that only amount to an inconvenience” will not support a

discrimination claim, Couch’s termination undoubtedly qualifies as an adverse

employment action within the ICRA’s definition.            See Farmland Foods, 672

N.W.2d at 742 (noting that adverse employment action embraces a wide variety

of facts, including “obvious actions” like termination).

       Couch must also show the adverse employment action was motivated by

her employer’s discriminatory animus or intent. See Pippen v. State, 854 N.W.2d

1, 9 (Iowa 2014). Discriminatory intent may be shown by either direct or indirect

evidence. See Reiss v. ICI Seeds, Inc., 548 N.W.2d 170, 174 (Iowa Ct. App.

1996). Couch is alleging there is direct evidence of discriminatory intent. Direct

evidence of discriminatory intent exists where there is “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.” Vaughn v. Must, Inc., 542 N.W.2d 533, 538 (Iowa 1996). Discriminatory

intent need not be the sole factor; “the plaintiff need only demonstrate

‘termination occurred under circumstances giving rise to an inference of

discrimination’ and his or her status as a member of a protected class was a

determining factor in the decision to terminate employment.” Deboom v. Raining

Rose, Inc., 772 N.W.2d 1, 13 (Iowa 2009) (citation omitted) (noting the different

causation standard applied in discrimination cases compared to the standard

applied in tortious discharge cases).

       The district court held that Silberhorn’s statements “constitute direct

evidence that Silberhorn did not believe Couch was a competent employee and

they establish, at least inferentially, that Silberhorn harbored animosity toward
                                       11


Couch because she participated in the lawsuits against the State.” For purposes

of ruling on the motion for summary judgment, the court accepted that the

statements also adequately supplied the basis for an inference that Silberhorn

harbored animus toward Couch based on her race. However, because it found

there was a lack of evidence showing Silberhorn was involved in any adverse

employment action, the court determined Silberhorn’s comments amounted to

nothing more than “stray remarks” by a non-decision-maker, which are

insufficient to establish discriminatory animus. See Rivers-Frison v. Se. Missouri

Cmty. Treatment Ctr., 133 F.3d 616, 619 (8th Cir. 1998) (stating stray remarks by

non-decision-makers are insufficient to establish discriminatory animus because

there is no causal connection between the remarks and the adverse employment

action).

       If Silberhorn was involved in the decision to terminate Couch, his

comments would be sufficient to establish discriminatory animus. Although the

record does not show, nor does Couch assert, that Silberhorn made the ultimate

decision to terminate Couch, when the evidence is viewed in the light most

favorable to her, it generates a question of fact on the issue of Silberhorn’s

involvement in or influence over Couch’s termination. Silberhorn was present in

meetings with Madison and the other income maintenance supervisor, and

personnel issues—including Couch’s potential termination—were discussed.

During those meetings, Silberhorn made it known that he anticipated Couch’s

termination. The evidence further indicates Silberhorn discussed Couch with

Madison and Gonzales before Madison drafted the document detailing the errors

in Couch’s case reads and formally recommending her termination.              For
                                            12


example, Silberhorn knew Madison counseled Couch for being eight minutes late

to work because he requested Madison’s supervisory notes on that counseling

while considering whether to grant Couch’s request for unpaid leave.

Additionally, Gonzales asked Silberhorn to supply her with a draft of a

termination letter,7 which Silberhorn was able to do using specific facts about

Couch’s performance. Considering any and all inferences that may reasonably

be made in favor of Couch, the evidence shows Silberhorn discussed Couch’s

performance and had the ability to influence Couch’s termination before

Madison’s recommendation.

       Although evidence that Silberhorn was involved in the ultimate decision to

terminate Couch would establish discriminatory animus, Couch is not required to

show Silberhorn was responsible for or directly involved in her termination to

survive summary judgment.          If Silberhorn took adverse employment action

against Couch with discriminatory intent, and his actions influenced the decision

to terminate her, Couch has generated a fact question on the issue of

discriminatory animus. See Staub v. Proctor Hosp., 562 U.S. 411, 413, 420

(2011)8    (holding an employer is liable for discrimination in terminating an


7
  Though Silberhorn’s email to Gonzales states he was providing the document as she
requested, we have no similar “paper trail” of the request for the draft of the termination
letter. Presumably, Gonzales requested the draft by other means—either in person or
by telephone. Because Silberhorn was able to include what appear to be specific details
of Couch’s performance in the draft, it is reasonable to infer Gonzales communicated
those details to Silberhorn during the same discussion or in others, or that Silberhorn
knew the information based on his involvement in the meetings with the income
maintenance supervisors. Regardless, one can reasonably conclude Silberhorn had
conversations with other management employees about Couch’s performance and
termination.
8
   Although Staub concerns the Uniformed Services Employment and Reemployment
Rights Act, the Supreme Court noted that statue “is very similar to Title VII,” 562 U.S. at
417, which the ICRA is modeled after, see Deboom, 772 N.W.2d at 10.
                                             13


employee, even though the ultimate decision-maker held no discriminatory

animus, if the decision to terminate was influenced by an employee who held

discriminatory animus and engaged in an adverse act that was intended to lead

to termination).       Couch alleges Silberhorn engaged in two adverse acts

calculated to lead to her termination: (1) he assigned Couch to Madison and (2)

he ensured she would receive less training. Although there is evidence to refute

Couch’s claim that Silberhorn was responsible for assigning Couch to Madison’s

supervision, his own statements indicate not only that he made the decision, but

that he did so specifically with an eye toward her termination. In a meeting with

the income maintenance supervisors, Silberhorn reportedly said he assigned

Couch to Madison so there would not be an issue when—not if—she was

terminated. Couch also alleges the assignment of Madison to be her supervisor

increased the likelihood of her termination due to Madison’s reputation as the

tougher of the two supervisors to which she could have been assigned.

          There is also evidence indicating Silberhorn was involved in Couch’s

training, which Couch consistently maintained was inadequate and a large factor

in her performance, which eventually led to her termination. The description of

Silberhorn’s position states his job duties include serving as the area’s training

liaison     to   “provide   guidance   and    feedback   in   the   development     and

implementation of training plans and goals, conduct presentations, [and]

authorize training requests,” suggesting, albeit weakly, that he had input on

Couch’s training.

          Viewing the evidence in the light most favorable to Couch, it is sufficient to

generate a fact question on the issue of whether Silberhorn was directly involved
                                        14


in or influenced Couch’s termination.      Accordingly, we reverse the grant of

summary judgment in favor of the DHS on Couch’s discrimination claims.

          B. Harassment Claims.

      Couch also claims she was subjected to hostile-environment harassment

based on her race. To succeed on her claim, Couch must establish: (1) she

belongs to a protected group; (2) she was subjected to unwelcome harassment;

(3) the harassment was based on a protected characteristic—in this case, her

race; and (4) the harassment affected a term, condition, or privilege of

employment. See Farmland, 672 N.W.2d at 744-45.

      A hostile work environment exists if “the workplace is permeated with

‘discriminatory intimidation, ridicule, and insult’” that is “sufficiently severe or

pervasive to alter the conditions of the victims employment and create an

abusive working environment.” Id. (emphasis added) (citations omitted). Couch

must establish not only that she subjectively perceived the conduct as abusive,

but that a reasonable person would also find the conduct to be abusive or hostile.

See id.

      The evidence clearly establishes Couch subjectively perceived her work

environment to be hostile. Couch testified she experienced mental distress after

learning of Silberhorn’s comments and that she had difficulty focusing on her job

as a result.     As the United States Supreme Court has recognized, “a

discriminatorily abusive work environment . . . can and often will detract from

employees’ job performance.”      Harris v. Forklift Sys., Inc., 510 U.S. 17, 22

(1993).   Couch alleged Silberhorn’s comments detracted from her ability to
                                           15


perform her job months before Gonzales made the ultimate decision to terminate

her employment.

       The question before us is whether there is sufficient evidence to generate

a question of fact on Couch’s claim her work environment was objectively hostile

based on Silberhorn’s comments alone.9 In making the determination of whether

a work environment is objectively hostile,10 we consider all the circumstances,

including: “(1) the frequency of the conduct, (2) the severity of the conduct, (3)

whether the conduct was physically threatening or humiliating or whether it was

merely offensive, and (4) whether the conduct unreasonably interfered with the

employee’s job performance.” Farmland, 672 N.W.2d at 744-45.

       Viewing the evidence in the light most favorable to Couch, we find a fact

question exists regarding whether a reasonable person would find Silberhorn’s

comments sufficient to create a hostile work environment.             Based on those

comments, Couch understood from practically the start of her employment with

the DHS that Silberhorn, the personnel manager, both anticipated her failure and,

worse, set her up to fail. Drawing the inferences from Silberhorn’s statements in

favor of Couch supports a finding that the comments were based on her race and

in retaliation for her participation in a civil rights lawsuit against the State.

Though Silberhorn made comments to this effect on several occasions, they

9
   Although Couch also complained several times about Madison’s treatment of her
during her employment with the DHS, Couch made no claim Madison engaged in
harassment against her based upon her race or in retaliation for her involvement in a
civil rights lawsuit against the State.
10
    Several federal circuit courts of appeals have held the determination of whether
harassment is severe or pervasive in nature “is particular unsuited for summary
judgment because it is ‘quintessentially a question of fact.’” See O’Shea v. Yellow Tech.
Servs., Inc., 185 F.3d 1093, 1098 (10th Cir. 1999) (quoting Beardsley v. Webb, 30 F.3d
524, 530 (4th Cir.1994)); cf. Jordan v. City of Cleveland, 464 F.3d 584, 597 (6th Cir.
2006).
                                        16


cannot be considered pervasive. Nor were his comments vulgar. However, a

reasonable person could find a superior’s comments anticipating a new

employee’s failure based on discriminatory animus or in retaliation for that

employee making a civil rights complaint to be severe and humiliating. Such

comments could also affect a reasonable person’s ability to succeed in training

for and performing the new job. As a result, we reverse the portion of the district

court’s order granting summary judgment in favor of the DHS on Couch’s

harassment claims.

      Having reversed the district court’s summary judgment ruling in its

entirety, we remand for further proceedings.

      REVERSED AND REMANDED WITH DIRECTIONS.
