Opinion
No. 4:20-cv-00391-RGE-SBJ
2022-05-23
Peter GARCIA, Plaintiff, v. PRIMARY HEALTH CARE, INC., Defendant.
Peter Garcia, Orlando, FL, Pro Se. Thomas M. Cunningham, Kevin Bernard Patrick, Nyemaster Goode PC, Des Moines, IA, for Defendant.
Peter Garcia, Orlando, FL, Pro Se.
Thomas M. Cunningham, Kevin Bernard Patrick, Nyemaster Goode PC, Des Moines, IA, for Defendant.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Rebecca Goodgame Ebinger, Judge
I. INTRODUCTION
Defendant Primary Health Care, Inc. moves for summary judgment on all claims brought by Plaintiff Peter Garcia, who applied for and was not hired for the position of Medical Director at Primary Health. Garcia was 60 years old with a hearing impairment when he applied for the Medical Director position. He alleges Primary Health discriminated against him based upon his age and disability when it declined to hire him. Garcia further alleges Primary Health retaliated against him and defamed him. Because Garcia's claims each fail as a matter of law, the Court grants summary judgment in Primary Health's favor.
II. BACKGROUND
A. Factual Background
The following facts are either uncontested or viewed in the light most favorable to Garcia, the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587–88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
Garcia is a medical doctor born in 1955 who applied for the position of Medical Director at Primary Health. Primary Health is a non-profit Federally Qualified Health Center that operates a community health center providing medical and dental care to underserved populations in Central Iowa. Primary Health used the Iowa Primary Care Association, a nonprofit association of community health centers of which Primary Health is a member, to recruit candidates for the Medical Director position. The Association, which would receive a fee of approximately $17,500 from Primary Health for successfully referring a Medical Director candidate, forwarded Garcia's application to Primary Health.
When Garcia applied for the Medical Director position in the fall of 2019, he had not been employed as a fulltime medical professional since 2011. He had been volunteering sporadically. Garcia has a hearing impairment. He had a cochlear implant in 2011, which assists him with amplifying the volume of speech and with speech differentiation.
During the application process, Rachael Miller, Human Resources Manager of Primary Health, was responsible for identifying and screening candidates for the Medical Director position. After receiving Garcia's materials from the Association, Miller scheduled a screening telephone interview with Garcia. Garcia initiated the phone call for the interview and utilized closed-captioning services during the call. Prior to the call, Garcia did not request any accommodation or disclose that he would be using closed captioning. During the call, Garcia told Miller he was using closed-captioning services and asked Miller to speak more slowly multiple times. After the screening interview, Miller advanced Garcia's application to the next stage of the process, although she noted she was "not certain he would be the best fit." She indicated she liked him "a lot more than our last Medical Director candidate" and instructed the next interviewer to speak slowly to accommodate Garcia's needs.
Dr. Heidi Shreck, the previous Medical Director who had been promoted to Chief Medical Officer, instructed Miller to schedule an interview with Garcia. The exchanges between Miller and Garcia to schedule the next interview occurred via email. The emails included discussions of ways to conduct the remote interview, in light of Garcia's hearing impairment. In one such email sent on January 15, 2020, Garcia stated:
Rachel:
It does not appear you have paid close attention to my emails in the past. I have informed you that the closed caption system that I use does not work well when people call in. I am not sure why. Yet you continue to insist on this. Secondly, if the people in Iowa are all planning to be in a single room and use a speaker phone allow me to interject that this arrangement has not worked well either in the past. The further the speaker is from the actual microphone [the] poorer the transmission and the more difficult for the transcription service. Therefore from my experience what you have proposed may work but its chances of success are modest at best.
Def.’s App. Supp. Mot. Summ. J. App 103, ECF No. 37-4. Miller responded with an email including questions as to whether better options exist and asking Garcia to "please let me know what you think would work best for you." Id. Ultimately, Garcia proposed having his wife repeat to him questions posed by the interviewers over Zoom with him responding. Primary Health agreed to this plan, but also planned on having a specialist on hand to type in questions for Garcia to read, if necessary.
Sherry Gomis, Primary Health's Chief Human Resources Officer, participated in the interview with Shreck and Garcia. No one asked about Garcia's age during the interview, or at any other time in the application process. No one asked and Garcia did not disclose whether he would need any reasonable accommodations to perform the essential functions of the Medical Director position. Gomis and Shreck asked open-ended questions such as "Why should we hire you for this job?" and "Talk about your experience working in an environment that requires delivering results relating to both quality and financial outcomes?"
After the interview, Shreck decided that Primary Health would not further pursue Garcia as a candidate for the Medical Director position. Miller notified the Association of Primary Health's decision. Miller also notified Garcia.
Dr. Jason Kessler, a pediatrician who was under 50 years old, had been serving as the interim Medical Director since July 2019. In July 2020 Primary Health changed Kessler's designation to a regular appointment. The position remains open and Primary Health is interested in hiring a second Medical Director with an internal medicine or a family practice specialty.
Additional facts are set forth below as necessary. B. Procedural Background
Garcia filed suit in this Court in December 2020, alleging six claims for relief. First, Garcia alleges discrimination under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et. seq. Garcia claims Primary Health violated the ADEA when it failed to hire him for the Medical Director position because of his age. Second, Garcia alleges Primary Health discriminated against him based upon his hearing impairment in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. Third, Garcia alleges fraudulent misrepresentation in violation of Iowa law. Fourth, Garcia alleges defamation in violation of Iowa law. Fifth, Garcia alleges Primary Health retaliated against him in violation of the ADEA and the ADA when it took action against him for "voicing a complaint regarding his treatment as an applicant as it related to his disability." Compl. 17, ECF No. 1. Sixth, Garcia alleges the same discrimination—on the basis of age and disability—and retaliation as violations of the Iowa Civil Rights Act.
Primary Health moves for summary judgment on all claims, arguing Garcia's claims each fail as a matter of law. Def.’s Mot. Summ. J., ECF No. 37. Garcia resists, except as to his claim of fraudulent misrepresentation, which he abandons. ECF No. 52. Each party requests a hearing. See ECF Nos. 37, 52. Finding the parties’ briefing and the written materials submitted adequately present the issues, the Court decides the motion without oral argument. See LR 7(c); Fed. R. Civ. P. 78(b).
III. LEGAL STANDARD
Under Federal Rule of Civil Procedure 56, the Court must grant a party's motion for summary judgment if there are no genuine issues of material fact in dispute and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett , 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine issue of material fact exists where the issue "may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248, 106 S.Ct. 2505. Where there is a genuine dispute of facts, those "facts must be viewed in the light most favorable to the nonmoving party." Ricci v. DeStefano , 557 U.S. 557, 586, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009) (quoting Scott v. Harris , 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) ).
To defeat a motion for summary judgment, the nonmoving party "may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial." Anderson , 477 U.S. at 248, 106 S.Ct. 2505 (omission in original) (quoting a prior version of Fed. R. Civ. P. 56(e) ). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial" and the moving party is entitled to judgment as a matter of law. Torgerson v. City of Rochester , 643 F.3d 1031, 1042–43 (8th Cir. 2011) (en banc) (quoting Ricci , 557 U.S. at 586, 129 S.Ct. 2658 ).
At summary judgment, courts do not "treat discrimination differently from other ultimate questions of fact." Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (quoting St. Mary's Honor Ctr. v. Hicks , 509 U.S. 502, 524, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) ); see also Torgerson , 643 F.3d at 1043 ("There is no ‘discrimination case exception’ to the application of summary judgment." (quoting Fercello v. Cnty. of Ramsey , 612 F.3d 1069, 1077 (8th Cir. 2010) )). Courts may not "second-guess" employers’ business decisions because "employers are free to make employment decisions so long as they do not discriminate unlawfully." Robinson v. Am. Red Cross , 753 F.3d 749, 754 (8th Cir. 2014) (quoting Haigh v. Gelita USA, Inc. , 632 F.3d 464, 471 (8th Cir. 2011) ).
IV. DISCUSSION
A. Disability Discrimination (Claim I and Claim VI)
Garcia asserts Primary Health discriminated against him on the basis of his disability. The ADA makes it unlawful to discriminate against a qualified individual "on the basis of disability," including by failing to hire an applicant. 42 U.S.C. § 12112(a) ; see Chalfant v. Titan Distrib., Inc. , 475 F.3d 982, 991 (8th Cir. 2007) (reasoning "disability must be a motivating factor in the employer's" adverse employment action); see also Lipp v. Cargill Meat Sols. Corp. , 911 F.3d 537, 543 (8th Cir. 2018) (reasoning direct evidence of disability discrimination must "support an inference that discriminatory attitude more likely than not was a motivating factor" (quoting Schierhoff v. GlaxoSmithKline Consumer Healthcare, L.P. , 444 F.3d 961, 966 (8th Cir. 2006) )). The ICRA similarly makes it "an unfair or discriminatory practice" for an employer "to discharge any employee ... because of" the employee's disability. Iowa Code § 216.6(1). Disability discrimination claims under the ADA and the ICRA proceed under the same framework. See Bearshield v. John Morrell & Co. , 570 N.W.2d 915, 918 (Iowa 1997) ; see also Hawkins v. Grinnell Reg'l Med. Ctr. , 929 N.W.2d 261, 271 (Iowa 2019) (reasoning "federal courts’ interpretations of the federal civil rights statute are illustrative and instructive"—but not binding—in interpreting the ICRA in part because the ICRA must be construed broadly to effectuate its purposes); Hollinger v. State , No. 15-2012, 2016 WL 7395738, at *3–4 (Iowa Ct. App. Dec. 21, 2016) (reasoning that, although amendments to the ADA do not control Iowa courts’ interpretation of the ICRA, the ICRA's definition of disability is at least as broad as the federal definition); Knudsen v. Tiger Tots Cmty. Child Care Ctr. , No. 12-0700, 2013 WL 85798, at *2 (Iowa Ct. App. Jan. 9, 2013) ("[F]ederal law establishes the framework for an analysis of ‘disability’ under state law.").
Like other forms of employment discrimination, a plaintiff may prove a disability discrimination claim premised on failure-to-hire either by offering direct evidence of discrimination or by creating an inference of discrimination under the McDonnell Douglas burden-shifting framework. See Oehmke v. Medtronic, Inc. , 844 F.3d 748, 755 (8th Cir. 2016) ; Thompson v. Bi-State Dev. Agency , 463 F.3d 821, 824–825 (8th Cir. 2006) ; see also Fenney v. Dakota, Minn. & E. R.R. Co. , 327 F.3d 707, 711–12 (8th Cir. 2003) (reasoning "discriminatory disparate treatment" claims are subject to "the traditional burden-shifting framework of McDonnell Douglas " while "reasonable accommodation" claims are subject to a "modified burden-shifting analysis"). Garcia does not present direct evidence of disability discrimination, so Garcia's disability discrimination claims proceed under McDonnell Douglas. See generally ECF No. 40. Federal and state disability discrimination claims may be analyzed together because the Iowa Supreme Court looks to federal law for guidance when interpreting the ICRA's prohibition on disability discrimination. See Casey's Gen. Stores, Inc. v. Blackford , 661 N.W.2d 515, 519 (Iowa 2003). To succeed on a claim of disability discrimination under the ICRA or the ADA, the plaintiff must demonstrate the adverse employment action was motivated by the defendant's discriminatory intent. See Faidley v. United Parcel Serv. of Am., Inc. , 889 F.3d 933, 940 (8th Cir. 2018) (en banc).
To establish a prima facie case of disability discrimination, a plaintiff must show that he: 1) is disabled within the meaning of the ADA; 2) is qualified to perform the essential functions of the job with or without reasonable accommodation; and 3) has suffered an adverse employment action based on the disability. Knutson v. Schwan's Home Serv., Inc. , 711 F.3d 911, 914 (8th Cir. 2013) ; see also Hill , 737 F.3d at 1216 ; Casey's Gen. Stores, Inc. v. Blackford , 661 N.W.2d 515, 519 (Iowa 2003) (setting out a materially similar standard for ICRA disability discrimination claims).
If a plaintiff establishes a prima facie case of disability discrimination, a rebuttable presumption of discrimination arises, and the burden shifts to the defendant to "articulate a legitimate nondiscriminatory reason for the adverse employment action." EEOC v. Product Fabricators, Inc. , 763 F.3d 963, 969 (8th Cir. 2014). This burden is "not onerous" and does not require proof by a preponderance of the evidence. Torgerson , 643 F.3d at 1047 (quotation omitted). If the defendant meets their burden, the plaintiff must show "that the employer's proffered reason is merely a pretext for intentional discrimination." Product Fabricators, Inc. , 763 F.3d at 969.
For purposes of summary judgment, Primary Health concedes Garcia establishes a prima facie case of disability discrimination. Primary Health contends Garcia's claim for disability discrimination fails because it has proffered a legitimate, nondiscriminatory reason for its decision not to hire him and Garcia fails to set forth sufficient facts for a reasonable jury to conclude those justifications are pretext for unlawful discrimination.
1. Legitimate, Nondiscriminatory Justification for Not Hiring
Assuming Garcia presents prima facie case for disability discrimination, Primary Health provides legitimate, non-discriminatory reasons for declining to hire him. Cf. Pye v. Nu Aire, Inc. , 641 F.3d 1011, 1019 (8th Cir. 2011).
Primary Health has proffered substantial evidence of their rationale for not hiring Garcia. Def.’s Statement Undisputed Material Facts Supp. Mot. Summ. J. ¶¶ 30–32, 40, 48-53, 59–60, ECF No. 37-1. Based upon Garcia's communication style over the phone, via email, and during the interview with Shreck and Gomis, Primary Health decided not to further consider Garcia as a candidate for the Medical Director position. Among other factors, Primary Health relied on subjective criteria, including word choice, tone, and Garcia's communication style, generally, in its decision. A hiring decision that includes subjective considerations is not, in and of itself, discriminatory. Torgerson v. City of Rochester , 643 F.3d 1031, 1049 (8th Cir. 2011). Additionally, objective evidence—Garcia's terse email to Miller, which Garcia acknowledged was "scolding" and, in retrospect, he could have worded more "diplomatically"—underlie the subjective concerns. An employer may consider an applicant's performance during the interview process in its hiring decision. See Pribyl v. County of Wright , 964 F.3d 793, 796-97 (8th Cir. 2020). Here, Primary Health's has proffered substantial, uncontested evidence of its legitimate, nondiscriminatory reason for not hiring Garcia.
2. Pretext
Garcia fails to offer evidence discrediting Primary Health's asserted reasons for its decision not to hire him or evidence demonstrating that the circumstances permit drawing the reasonable inference that the real reason for not hiring him was his disability. Cf. Twymon v. Wells Fargo & Co. , 462 F.3d 925, 935 (8th Cir. 2006). A plaintiff may demonstrate pretext by showing an employer failed to follow its own policies, treated similarly situated employees differently, or shifted its explanation for its employment decision. Edwards v. Hiland Roberts Dairy, Co. , 860 F.3d 1121, 1125–26 (8th Cir. 2017). Garcia provides no such evidence. Garcia offers only speculation and conclusory allegations.
Garcia argues lack of documentation demonstrates pretext. ECF No. 37-2 at 32. However, Primary Health has submitted evidence, including deposition testimony, to support the rationale set forth in the contemporaneous notes. And "no rule requires that interview notes be the complete account of a manager's interview impressions." Brooks v. Ameren UE , 345 F.3d 986, 989 (8th Cir. 2003). Garcia points to no evidence indicating Primary Health's stated reasons were pretextual, but instead speculates the motivation was disability discrimination. The Court does not sit as a "super personnel department[ ] reviewing the wisdom, and fairness of the business judgments made by employers except to the extent that those judgments involve intentional discrimination." Elam v. Regions Fin. Corp. , 601 F.3d 873, 880-81 (8th Cir. 2010) (citation and internal quotation marks omitted).
Primary Health made a business judgment as to the best fit for the posted position. With no evidence to substantiate his allegations, Garcia cannot show Primary Health's reason for failing to hire him was his disability. Cf. In re Johns-Manville Corp. , 517 F.3d 52, 53 (2d Cir. 2008) ; Gander Mtn. Co. v. Cabela's Inc. , 540 F.3d 827, 831 (8th Cir. 2008).
B. Age Discrimination
1. ADEA (Claim II)
The ADEA makes it "unlawful for an employer ... [to] discriminate against any individual ... because of such individual's age," including by failing to hire an applicant. 29 U.S.C. § 623(a) ; see also Tramp v. Associated Underwriters, Inc. , 768 F.3d 793, 800 (8th Cir. 2014) (noting the plaintiff must prove that age was the but-for cause of the challenged employment action). To establish a claim of age discrimination under the ADEA, a plaintiff may present direct evidence of age discrimination or create an inference of discrimination through the McDonnell Douglas burden-shifting framework. Grant v. City of Blytheville , 841 F.3d 767, 773 (8th Cir. 2016).
If a plaintiff presents a prima facie case of age discrimination, it "creates a presumption that the employer unlawfully discriminated against the plaintiff and shifts the burden to the employer to articulate a legitimate nondiscriminatory reason for its actions." Ridout v. JBS USA, LLC , 716 F.3d 1079, 1083 (8th Cir. 2013). If the employer meets the burden, the presumption of discrimination disappears. Id. The burden then shifts back to the employee to demonstrate the rationale from the employer "is a mere pretext for age discrimination." Id.
For purposes of summary judgment, Primary Health concedes Garcia establishes a prima facie case of age discrimination. Primary Health contends Garcia's claim for age discrimination, like his claim for disability discrimination, fails because it has proffered a legitimate, nondiscriminatory reason for its decision not to hire Garcia and Garcia fails to set forth sufficient facts for a reasonable jury to conclude those justifications are pretext for unlawful discrimination. a. Legitimate, nondiscriminatory justification for termination
As discussed above as to Garcia's disability discrimination claim, Primary Health has set forth a legitimate, nondiscriminatory justification for not hiring Garcia. The undisputed evidence of legitimate, nondiscriminatory justification for the hiring decision is equally compelling as to the age discrimination claim. No further discussion is warranted.
b. Pretext
Because Primary Health Care has proffered a legitimate reason for not hiring Garcia that is nondiscriminatory as to his age, the burden shifts back to Garcia to demonstrate that reason was pretext for age discrimination. See Grant , 841 F.3d at 773. A plaintiff may show pretext by demonstrating that the proffered justification has no basis in fact or that a prohibited reason more likely motivated the employer. Hilde v. City of Eveleth , 777 F.3d 998, 1004 (8th Cir. 2015). The plaintiff's burden to demonstrate pretext for an ADEA claim requires the plaintiff to demonstrate that age was the but-for cause of the adverse employment action—here, the failure to hire. See id.
Garcia points to the age of the person ultimately serving as a Medical Director, Kessler, to demonstrate pretext as to age. Kessler was 48 years old when he was hired as the interim Medical Director and 49 years old when that appointment was made regular. ECF No. 37-1 ¶ 7. To support a finding of pretext, Garcia must show that Primary Health hired a "less qualified applicant." Kincaid v. City of Omaha , 378 F.3d 799, 805 (8th Cir. 2004). "Similar qualifications" do "not raise an inference of ... discrimination." Torgerson , 643 F.3d at 1049 (internal quotation omitted). The record supports Kessler and Garcia's "similar qualifications." And the contested issue is not Garcia's qualification for the position; his objective qualifications resulted in furthering the interview process. The issue is the business determination of the comparative strengths of the applicants during the interview process. As discussed above, an employer may consider an applicant's performance during the interview process in its hiring decision. Pribyl , 964 F.3d at 796-97. And the unrefuted evidence here shows the decision makers found Garcia's communication style sufficiently deficient to end his consideration for the position. See McKay v. U.S. Dept. of Trans. , 340 F.3d 695, 700 (8th Cir. 2003) (upholding summary judgment and finding lack of pretext where plaintiff presented "strong evidence he was qualified" for the position, but the decision makers rated other criteria more highly in the interview process). Moreover, nothing in the record creates a reasonable inference that age was the but-for cause of Primary Health's employment decision. Cf. Wingate v. Gage Cnty. Sch. Dist., No. 34 , 528 F.3d 1074, 1080 (8th Cir. 2008).
2. ICRA (Claim VI)
Garcia also raises an age discrimination claim under the ICRA. The ICRA's age discrimination provisions are broadly similar to the ADEA; like the ADEA, the ICRA makes it "an unfair or discriminatory practice for" an employer "to discharge any employee ... because of" the employee's age. Iowa Code § 216.6(1). The ICRA differs from the ADEA, however, in its causation standard. Where the ADEA requires a plaintiff to demonstrate age was the but-for cause of the termination of his employment, the ICRA only requires a plaintiff to demonstrate age was a motivating factor. DeBoom v. Raining Rose, Inc. , 772 N.W.2d 1, 13–14 (Iowa 2009) ; see Haskenhoff v. Homeland Energy Sols., LLC , 897 N.W.2d 553, 582 (Iowa 2017) (" DeBoom clarified that the motivating-factor test applied to discriminatory discharge cases" under the ICRA (emphasis omitted)); cf. Tramp , 768 F.3d at 800 (noting a but-for standard applies to ADEA claims); Schott v. Care Initiatives , 662 F. Supp. 2d 1115, 1118–20 (N.D. Iowa 2009) (reasoning the but-for standard applicable to ADEA claims differs from the motivating factor standard applicable to ICRA claims).
For the same reasons Garcia's ADEA claim fails, his ICRA age discrimination claim fails. He puts forth no evidence supporting an inference that age was a motivating factor in Primary Health's decision not to hire him.
C. Retaliation (Claim V)
Garcia's complaint includes a reference GINA, the Genetic Information Discrimination Act, as an additional basis for his retaliation claim. Neither party references GINA in its filings and nothing in the record addresses genetic information. As such, the Court does not address that aspect of Garcia's retaliation claim, finding it waived.
Garcia alleges Primary Health retaliated against him for "voicing a complaint regarding his treatment as an applicant as it relates to his disability." ECF No. 1 at 17.
The ADA prohibits retaliating against an individual for "oppos[ing]" disability discrimination. 42 U.S.C. § 12203(a). The ADEA likewise prohibits retaliating against an individual for "oppos[ing]" age discrimination. 29 U.S.C. § 623(d). And the ICRA also makes it "an unfair or discriminatory practice for" an employer "to discriminate or retaliate against another person ... because such person has lawfully opposed" age or disability discrimination. Iowa Code § 216.11. Retaliation claims under the ICRA are analyzed under the same but-for causation standard applicable to federal disability and age retaliation claims. See Haskenhoff , 897 N.W.2d at 582–83, 582 n.9.
Absent direct evidence of retaliation (which Garcia has not produced), courts also analyze retaliation claims under the McDonnell Douglas burden-shifting framework. See Stewart v. Indep. Sch. Dist. No. 196 , 481 F.3d 1034, 1042–43 (8th Cir. 2007). To make out a prima facie case of retaliation, a plaintiff must demonstrate: 1) he participated in a protected activity based on a reasonable good faith belief that an agent of his employer was engaged in discrimination; 2) he suffered an adverse employment action; and 3) there is a causal connection between the adverse employment action and the protected activity. See id. at 1043 ; Lenzen v. Workers Comp. Reinsurance Ass'n , 705 F.3d 816, 821 (8th Cir. 2013) ; see also Lewis v. St. Cloud State University , 467 F.3d 1133. 1138 (8th Cir. 2006) (ADEA); Mershon v. St. Louis Univ. , 442 F.3d 1069, 1074 (8th Cir. 2006) (ADA). The defendant must then proffer a legitimate, nonretaliatory justification for the adverse employment action. Stewart , 481 F.3d at 1043. The plaintiff then bears the burden to show that justification was pretextual. Id.
Iowa law mirrors federal law as to retaliation, so the Court considers Garcia's state law claims together with his federal retaliation claims.
First, Garcia puts forth no evidence supporting a claim that he was retaliated against because of any activity opposing age discrimination. As such, his ADEA retaliation claim and his ICRA claim for retaliation arising from age discrimination fail as a matter of law.
Second, as to his retaliation claim based upon disability discrimination, Garcia points to his email on January 15, 2020, as protected activity. He describes the email as "his protest of the violation of his civil rights." ECF No. 37-2, at 38. The Eighth Circuit has held that requesting an accommodation is a protected activity for purposes of 42 U.S.C. § 12203(a). Kirkeberg v. Canadian Pacific Ry. , 619 F.3d 898, 907-08 (8th Cir. 2010) (discussing Heisler v. Metropolitan Council , 339 F.3d 622, 632 (8th Cir. 2003), questioning its reasoning, but recognizing its binding authority). While the email deals with the manner of conducting an interview in light of Garcia's hearing impairment, it does not request a specific accommodation. Instead, the email is a part of the iterative process of finding a reasonable accommodation. And the process of finding a means to accommodate Garcia's hearing needs continued. He was accommodated in a manner he proposed. Heisler held that a person who unsuccessfully seeks an accommodation may pursue a retaliation claim. Heisler , 339 F.3d at 632. Garcia was accommodated. The email was not an unsuccessful request for accommodation and therefore appears to fall outside of the recognized boundaries of protected activity under current Eighth Circuit law.
Even if the email constitutes protected activity, evidence of a causal connection between any request for accommodation and the decision not to hire Garcia is lacking. See Hill v. Walker , 737 F.3d 1209, 1219 (8th Cir. 2013) (assuming without deciding that a request for accommodation was protected activity under the ADA but affirming summary judgment on the retaliation claim because causation evidence was lacking). As discussed above in regards to disability discrimination, Primary Health has proffered neutral, non-discriminatory reasons for its hiring decision and Garcia has not shown those to be pretextual.
D. Defamation (Claim IV)
"The law of defamation consists of the twin torts of libel and slander." Lara v. Thomas , 512 N.W.2d 777, 785 (Iowa 1994). "Libel is generally a written publication of defamatory matter, and slander is generally an oral publication of such matter." Schlegel v. The Ottumwa Courier , 585 N.W.2d 217, 221 (Iowa 1998). Under Iowa law, a claim for defamation requires: "(1) publication, (2) of a defamatory statement, (3) which was false and (4) malicious, (5) made of and concerning the plaintiff, (6) which caused injury." Bierman v. Weier , 826 N.W.2d 436, 443–44 (Iowa 2013). A claim for defamation per se does not require proof of malice, falsity, or damage. Lara , 512 N.W.2d at 786.
In considering a defamation claim, the court must "decide whether the challenged statement is capable of bearing a particular meaning, and whether that meaning is defamatory." Yates v. Iowa W. Racing Ass'n , 721 N.W.2d 762, 771–72 (Iowa 2006) (internal quotation marks and citation omitted). In doing so, the court must examine the "totality of the circumstances in which [the] statements are made." Id. at 769. Additionally, the plaintiff must demonstrate injury to their "reputation and good name."
Garcia broadly alleges defamation based upon statements Garcia claims are false made by Miller to employees of Primary Health and the Association. ECF No. 1 at 15. Specifically, Garcia points to one email from Miller to Angela Benjegerdes at the Association in support of his defamation claim. Id. The email, which attached the January 15 email from Garcia to Miller, stated:
I wanted to let you know that I had a follow up conversation with Dr. Shreck this afternoon. We will not be further considering Dr. Garcia for the Medical Director position. Our reason is directly related to specific correspondence between myself and him; please see it below. We didn't feel that it was appropriate for an applicant for the medical director role to respond in the manner in which he did. FYI he did not mention
to me in any correspondence that I could not call him and would certainly not insist upon it. We just have major reservations that this could be the way he communicates with staff members, etc. during times of frustration and did not feel it to be appropriate or well received.
ECF No. 37-4 at App. 108.
The statements in Miller's email to Benjegerdes do not meet the standard for defamation per se. Statements are "defamatory per se if they are of a nature that a court can presume as a matter of law that their publication will have a defamatory effect." Huegerich v. IBP, Inc. , 547 N.W.2d 216, 221 (Iowa 1996). Such statements can occur in the job application process. For example, in Vinson v. Linn-Mar Community School District , the Iowa Supreme Court upheld a finding of defamation per se because the defendant's statement to the plaintiff's potential employer accusing the plaintiff of falsifying information attacked the plaintiff's integrity and moral character. 360 N.W.2d 108, 116 (Iowa 1984). However, nothing in Miller's email to Benjegerdes meets that exacting standard. Miller's email sets forth facts acknowledged by Garcia to be true: that he did not provide her notice via email of his concerns about Primary Health initiating a call with him. And, the email goes on to describe Miller's concerns about Garcia's communication style. Nothing in this communication has a natural tendency to expose Garcia to public hatred, contempt, or ridicule.
Nor has Garcia set forth sufficient facts to otherwise demonstrate defamation. First, the statement about Garcia not mentioning the calling limitation in any correspondence is true. Statement of Material Facts at Para 32. "[T]ruth is a complete defense to a defamation action." Hovey v. Iowa State Daily Publ'n Bd., Inc. , 372 N.W.2d 253, 255 (Iowa 1985). The remaining statements in the email are Primary Health's opinions based upon Garcia's email. These statements "do not imply a provable false fact, or rely upon stated facts that are provably false." Yates , 721 N.W.2d at 771 (internal quotation omitted). Moreover, Miller attached the specific correspondence she referenced. By attaching Garcia's email, Miller provided Benjegerdes with the opportunity to reach her own conclusion as to the accuracy of Primary Health's assertion that Miller's communication style was problematic.
Even if the email could reasonably be construed as defamatory, Garcia's defamation claim fails because the communication was qualifiedly privileged. "A qualified privilege exists with respect to statements that are otherwise defamatory if the following elements exist: (1) the statement was made in good faith; (2) the defendant had an interest to uphold; (3) the scope of the statement was limited to the identified interest; and (4) the statement was published on a proper occasion, in a proper manner, and to proper parties only." Barreca v. Nickolas , 683 N.W.2d 111, 118 (Iowa 2004) (internal quotation omitted). The uncontested facts support each of these elements. Here, Primary Health had an interest in informing their referral source of the shortcomings of a candidate they advanced. The statement from Miller to Benjegerdes was limited to this purpose and there is no evidence in the record suggesting the communication was distributed beyond the Association. Nor is there anything in the record suggesting the qualified privilege was abused. Id.
V. CONCLUSION
The Court grants Primary Health Care's motion for summary judgment.
Accordingly, IT IS ORDERED that Defendant Primary Health Care, Inc.’s Motion for Summary Judgment, ECF No. 37, is GRANTED .
The Clerk of Court is ordered to enter judgment in favor of Defendant Primary Health Care, Inc. and against Plaintiff Peter Garcia.
Each party is responsible for their own costs.