David Alan Feeback v. Swift Pork Company, Troy Mulgrew and Todd Carl

IN THE COURT OF APPEALS OF IOWA

No. 20-1467
Filed March 30, 2022

DAVID ALAN FEEBACK,
Plaintiff-Appellant,

vs.

SWIFT PORK COMPANY, TROY MULGREW and TODD CARL,
Defendants-Appellees.
________________________________________________________________

Appeal from the Iowa District Court for Marshall County, Bethany Currie,

Judge.

David Feeback appeals the grant of summary judgment on his employment

lawsuit. AFFIRMED IN PART; REVERSED IN PART, AND REMANDED.

Bruce H. Stoltze Jr. of Stoltze & Stoltze, PLC, Des Moines, for appellant.

Ruth A. Horvatich and Aaron A. Clark of McGrath North PC LLO, Omaha,

Nebraska, for appellees.

Heard by Bower, C.J., and Tabor and Chicchelly, JJ.
2

TABOR, Judge.

Swift Pork Company fired long-time employee David Feeback after he sent

offensive text messages to a supervisor. In response, Feeback sued, alleging age

discrimination, workplace harassment, and wrongful termination. The district court

granted summary judgment for Swift1 on all three claims. Because a genuine issue

of material fact exists on the age-discrimination claim, we reverse that part of the

judgment and remand. But no reasonable jury could find in Feeback’s favor on the

other two claims. So we affirm on the remaining issues.

I. Facts and Prior Proceedings

Sixty-year-old Feeback worked at Swift for over two decades. As middle

management, he ran the cut floor for years, receiving mostly positive reviews.

Then in 2015, he started to receive negative feedback from his bosses. In May,

Feeback broached safety concerns with his direct supervisor, plant manager Todd

Carl. Swift was using worn-out trolleys to move carcasses on a rail system.

Feeback warned: “Due to the wear on the trolleys, carcasses were sliding back

down the incline and falling off the rail.” But Carl grew angry, emphasized the high

replacement costs, and ended the conversation.2 In a phone call a few weeks

later, Feeback reiterated his worry that someone could be hurt by a falling carcass.

But like the last time, Carl was unreceptive, hanging up mid-conversation.

1 Feeback’s suit named Swift Pork Company, as well as supervisors Troy Mulgrew
and Todd Carl. For brevity, we will use the shorthand Swift when discussing all
three defendants.
2 Although Feeback suggests Carl ignored this safety issue, Swift was addressing

the trolley problem when Feeback was terminated.
3

As Feeback tells it, Carl’s antagonism extended beyond that safety issue.

For instance, he accused Feeback of being “asleep at the wheel” and letting his

department run “out of control.” Soon, Feeback also detected hostility from Carl’s

supervisor, general manager Troy Mulgrew. In particular, Feeback recalled that

Mulgrew once interrupted Feeback’s bathroom break, accusing him of “fucking

around” in there. For a time, tensions eased. But workplace frictions flared again

near the holidays. In early December 2015, Feeback skipped a staff meeting,

choosing to stay on the short-staffed cut floor instead. That choice angered

Mulgrew, who reprimanded Feeback. And, despite approving Feeback’s absence,

Carl said nothing.

But New Year’s Eve proved the final straw. Trying to make up missed safety

training sessions, Feeback scheduled an afternoon meeting for his department.

But Swift often let employees go early on that date. Annoyed, Feeback’s crew

complained to Mulgrew. The manager intervened, cancelled the meeting, and sent

the employees home for the holiday. While the crew’s day was over, Feeback

wasn’t so lucky. Instead, Mulgrew called Feeback and Carl into his office where

he criticized Feeback at length. When Feeback tried to defend himself, Mulgrew

said that “he should be sitting there with his mouth shut and arms wide open.”

That night, Feeback sent two text messages to Mulgrew. The first read

“FUCK You!” The second, “Believe who and what you want.” Although Feeback

later claimed he meant to send the texts to his friend, Tim Turner, Feeback took

no action to explain the alleged mistake to Mulgrew.

Upset by the perceived insubordination, Mulgrew sent a screenshot of the

texts to Pete Charboneau, Swift’s head of human resources. The next morning,
4

Charboneau called Feeback. Feeback admitted sending the texts but told

Charboneau that “it was by mistake.” Charboneau asked why Feeback had not

“rescinded” the messages; Feeback replied he did not know how. Feeback also

testified in his deposition that he hadn’t explained the mistake to Mulgrew because

his meeting with Charboneau happened first thing in the morning.

Without further investigation, Charboneau suspended Feeback. And, a few

days later, Feeback was terminated.

In May 2018, Feeback sued, alleging age discrimination, retaliation,

workplace harassment, and wrongful termination. As trial neared, Swift moved for

summary judgment on the age discrimination, harassment, and wrongful

termination claims.3 Finding no genuine issues of material fact, the district court

granted Swift’s motion. Feeback now appeals.

II. Scope and Standard of Review

We review grants of summary judgment for errors at law. Smith v.

Shagnasty’s Inc., 688 N.W.2d 67, 71 (Iowa 2004). Like the district court, we view

the record in the light most favorable to the nonmoving party. Bill Grunder’s Sons

Const. Inc. v. Ganzer, 686 N.W.2d 193, 196 (Iowa 2004). If the district court

correctly applied the law and there was no genuine issue of material fact, we affirm.

Id. We consider an issue to be material if its determination affects the suit’s

outcome. Id. And the dispute is genuine if a reasonable jury could return a verdict

for the nonmoving party. Id.

3 Feeback withdrew the retaliation claim before Swift’s summary-judgment motion.
5

“Mere skepticism of a plaintiff’s claim is not a sufficient reason to prevent a

jury from hearing the merits of a case.” Clinkscales v. Nelson Sec., Inc., 697

N.W.2d 836, 841 (Iowa 2005). So particularly in discrimination cases

[w]e should approach . . . with great caution. We should carefully
examine the facts and ask ourselves with self-critical rigor and
discipline the following: Have we refused to engage in credibility
determinations? Have we refused to weigh the evidence? Have we
given every legitimate inference of the meaning of evidence to the
nonmoving party?

Hedlund v. State, 930 N.W.2d 707, 742 (Iowa 2019) (Appel, J., concurring in part

and dissenting in part).

III. Analysis

Feeback advances three causes of action: (1) age discrimination;

(2) harassment; and (3) wrongful termination. We take each in turn.

A. Age discrimination

Feeback first claims age discrimination provoked his firing. That claim

arises under the Iowa Civil Rights Act (ICRA), which declares that it is a

discriminatory practice to discharge any employee because of age, unless based

on the nature of the occupation. Iowa Code § 216.6(1)(a) (2015).

To start, we focus on that “because of age” language, or in other words,

causation. The parties clash over which causation test controls at the summary

judgment stage. On one side, Feeback points to Hawkins v. Grinnell Regional

Medical Center, 929 N.W.2d 261 (Iowa 2019). There, our supreme court “adopted

the motivating-factor test for causation in ICRA discrimination cases.” Id. at 272.

On the other side, Swift argues the McDonnell-Douglas burden-shifting analysis
6

still controls. See generally McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973).

True, Hawkins abandoned the McDonnell-Douglas test for instructing the

jury in a civil rights case. 929 N.W.2d at 272. But the proper standard on summary

judgment remains an open question. See Hedlund, 930 N.W.2d at 719 (declining

to resolve the ambiguity); see also Watkins v. City of Des Moines, No. 19-1511,

2020 WL 2988546, at *4–7 (Iowa Ct. App. June 3, 2020) (conducting both

analyses). So we consider both tests.

1. McDonnell-Douglas

McDonnell Douglas involves three steps. First, Feeback must establish a

prima facie discrimination case. See 411 U.S. at 802. Then, Swift may rebut that

prima facie case by showing “some legitimate, nondiscriminatory reason” for its

action. See id. Finally, Feeback must show the offered justification was pretext

and unlawful discrimination the actual reason for termination. See id. at 804.

Here, the first two steps are uncontroversial. When fired, Feeback was over

forty and had generally performed satisfactorily on the job.4 See Vaughn v. Must,

Inc., 542 N.W.2d 533, 538 (Iowa 1996) (describing three requirements of prima

facie case). For step two, Swift points to the disrespectful texts as a legitimate,

nondiscriminatory basis for termination.

And now we reach the heart of the dispute: was Swift’s reason for firing

Feeback pretextual? Feeback insists harsh language was ingrained in Swift’s

workplace culture. Because it was such a common occurrence, Feeback contends

4 Swift suggests that negative employee reviews existed. But Swift could not
produce any records.
7

that his profane text could not be the real reason he was fired. Instead, he asserts

his age was the determinative factor. Supporting this position, Feeback points to

a pattern of older employees being terminated, demoted, or otherwise forced out

before retirement.

Swift disagrees with Feeback’s contention, arguing any similarly situated

employee would have been fired. Granted, profanity may have been pervasive at

the packing plant. But, in Swift’s view, it was not just Feeback’s use of the word

“fuck” in his text that led to his firing. It was the insubordination of directing such a

verbal assault at one’s supervisor that set his case apart. And Feeback’s singular

situation aside, Swift argues his pattern evidence should not be considered.

At this stage, we view the facts in the light most favorable to Feeback,

making all legitimate inferences in his favor. See Ganzer, 686 N.W.2d at 196.

That standard in mind, we believe a reasonable jury could find that Swift used the

text message as a pretext to terminate Feeback’s long-term employment with the

company based on his advancing age.

No doubt, insubordination could prompt a termination. But there’s a fact

question about who Feeback meant to text. As soon as he was confronted by

Charboneau, Feeback insisted Mulgrew was an unintended recipient. And other

evidence arguably supports the mistake theory. One of the two messages did not

make perfect sense in context. Granted, Mulgrew had rebuked Feeback earlier

that day. But the central dispute did not revolve around competing versions of

truth. So the second text—“Believe who and what you want.”—did not fit with the

conversation. Indeed, Mulgrew later agreed the second message seemed off and

there could have been a “possible” alternative recipient.
8

Given the potential misunderstanding, a reasonable jury may have credited

Feeback’s version when presented with Swift’s hasty response. Rather than

investigate a possible miscommunication, Charboneau suspended Feeback on the

spot. And within days he was fired. Considering Feeback’s decades with the

company, the ax fell with surprising speed. Indeed, during a deposition, Mulgrew

admitted the precipitous decision was “concerning” and that he “would expect

someone to look” into the situation before acting. What’s more, a text exchange

between the supervisors suggested Carl welcomed Feeback’s rapid departure.5

Beyond the possibility that the texts were not intended for Mulgrew and the

cursory investigation, there’s the company culture. Swearing was common.

According to Feeback, “pretty much anything went when it came to language” and

he notes over seventy-five instances when younger employees swore “at or in front

of supervisors.”6 Indeed, Swift doesn’t contest this phenomenon; Mulgrew agreed

5 After learning that Feeback was suspended, Mulgrew messaged Carl, stating,
“Feeback not allowed to work.” Carl replied: “Amen.”
6 Swift launches two attacks on this information. First, it argues the statements

were inadmissible hearsay. Second, it contends the other employees weren’t
similarly situated.
Hearsay first, we agree with the district court: the statements aren’t offered
for their truth. Instead, Feeback offers them to show that the cursing happened.
See Iowa R. of Evid. 5.801(c).
As for being similarly situated, Swift notes none of those other employees
swore at Mulgrew. See Massey-Diez v. Univ. of Iowa Cmty. Med. Servs., Inc., 826
F.3d 1149, 1163 (8th Cir. 2016) (characterizing the similarly situated test as a
“rigorous” one which should consider all “relevant aspects”). But that fact may not
be dispositive. See Anderson v. WBMG-42, 253 F.3d 561, 565–66 (11th Cir. 2013)
(rejecting “proposition that whenever two different supervisors are involved . . . the
comparators cannot as a matter of law be similarly situated.”). Indeed, the test
may be more malleable than Swift suggests. See, e.g., Ridout v. JBS USA, LLC,
716 F.3d 1079, 1085 (8th Cir. 2013) (testing for “comparable seriousness,” not a
“clone”); Lewis v. City of Union City, Georgia, 934 F.3d 1169, 1185 (11th Cir. 2019)
(looking for a “convincing mosaic” of evidence that could lead to inference of
9

cursing was not unusual in their workplace. In sum, a reasonable jury—

considering the workplace norms, Feeback’s ambiguous intent, and the lack of

investigation—could find the quick termination was pretextual.

But was it based on age? Showing pretext alone is insufficient; pretext must

be coupled with discrimination. See Reeves v. Sanderson Plumbing Prods., Inc.,

530 U.S. 133, 146 (2000) (“It is not enough to disbelieve the employer; the

factfinder must believe the plaintiff’s explanation of intentional discrimination”)

(emphasis original) (cleaned up). The district court found no discrimination

because Feeback “lack[ed] . . . affirmative evidence that . . . age actually played a

role in the decision to terminate his employment.” We agree the record contains

no comments from Carl or Mulgrew revealing discriminatory feelings toward

Feeback based on his age. See Hedlund, 930 N.W.2d at 721 (discussing when

remarks by decision makers may show influence of discriminatory feelings on

adverse employment action).

But Feeback does not need direct proof of discriminatory intent to survive a

summary-judgment motion. A contrived reason for termination is a sign of

discrimination. See Smidt v. Porter, 695 N.W.2d 9, 16 (Iowa 2005).7 “[O]nce the

discrimination); Johnson v. Advoc. Health & Hosps. Corp., 892 F.3d 887, 895 (7th
Cir. 2018) (describing the test as “flexible, common-sense, and factual”).
In any event, we decline to decide this issue for three reasons. First, we
see this as workplace culture, not comparator evidence. Second, the district court
did not decide this issue. And, third, missing a similarly situated employee isn’t
fatal to a discrimination claim. See, e.g., Gustafson v. Genesco, Inc., 320 F. Supp.
3d 1032, 1050 (S.D. Iowa 2018) (denying summary judgment in sex discrimination
case in which “Gustafson cannot show she was treated differently from similarly
situated male employees” but produced other evidence).
7 See also St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 517 (1993) (“[P]roving the

employer’s reason false becomes part of (and often considerably assists) the
greater enterprise of proving that the real reason was intentional discrimination.”).
10

employer’s justification has been eliminated, discrimination may well be the most

likely alternative explanation, especially since the employer is in the best position

to put forth the actual reason for its decision.” Id. (quoting Reeves, 530 U.S. at

147–48). In Reeves, the court explained that “a prima facie case and sufficient

evidence to reject the employer’s explanation may permit a finding of liability.” 530

U.S. at 149. In other words, in appropriate circumstances a plaintiff may create a

fact question by showing “the employer is dissembling to cover up a discriminatory

purpose.” Id. at 147.

We find such circumstances are present here. In his prima facie case,

Feeback asserts Swift has a pattern of demoting, terminating, or forcing out older

employees. He believes that, as a sixty-year-old employee nearing retirement, he

was the latest casualty of this practice.

To support this claim, Feeback relies on an affidavit tracking his

observations during his years at Swift.8 He describes nine management-level

employees who were “forced out after reaching age fifty-six.” He also notes Swift’s

“high management turnover rate and low retirement rate.” But again Swift

challenges the affidavit, arguing its substance would be inadmissible at trial. See

Iowa R. Civ. P. 1.981(5) (“Supporting and opposing affidavits shall be made on

personal knowledge, shall set forth such facts as would be admissible in evidence,

and shall show affirmatively that the affiant is competent to testify to the matters

8 The district court characterized the affidavit as “self-serving.” But that
characterization suggests a credibility determination—improper on summary
judgment. Even affidavits which prove to be self-serving may be evidence for the
trier of fact to believe or disbelieve. See Bieniak v. Romstad, No. 05-0432, 2005
WL 1750489, at *5 (Iowa Ct. App. July 27, 2005).
11

stated therein.”). The district court agreed, finding Feeback’s “barebones

allegations regarding other employees” cannot be considered.

Feeback counters that his information about the fate of those older

employees was based on his “personal knowledge of management decisions” and

“his own observations whether employees were terminated or demoted and how

old they were at the time the termination or demotion occurred.” 9 Unlike the district

court, we find Feeback’s affidavit contains “competent evidence even if it is not the

strongest evidence.” See Cap. One Bank (USA), N.A. v. Taylor, No. 13-2043,

2015 WL 7567398, at *6 (Iowa Ct. App. Nov. 25, 2015) (quoting definition of

competence in Black’s Law Dictionary (10th ed. 2014) as “a basic or minimal ability

to do something; adequate qualification, esp[ecially] to testify”). Feeback’s

awareness of what was happening in his workplace offered more than conjecture.

Contrast Wemett v. Schueller, 545 N.W.2d 1, 3 (Iowa Ct. App.1995) (determining

affidavit based on mere speculation could not avoid summary judgment). All nine

people who Feeback mentions stopped working for Swift after reaching their late

fifties. A jury could find this evidence persuasive on his discrimination claim. We

conclude Feeback’s affidavit set forth specific facts, based on his personal

knowledge of events in his workplace, showing there is a genuine issue of material

fact for trial, as required to defeat a motion for summary judgment. See Iowa R.

Civ. P. 1.981(5).

9The following example is representative: “In approximately 2009, Ms. Hughlette,
Human Resources Manager, was terminated. She was approximately fifty-six
years old.”
12

2. Motivating Factor

We next consider the motivating-factor test. Under this test, the plaintiff’s

protected characteristic must be a motivating factor in the adverse employment

decision. Hawkins, 929 N.W.2d at 270. The motivating-factor standard is more

easily met than the McDonnell Douglas test because Feeback need not show

Swift’s rationale for his firing was pretextual. See Quigg v. Thomas Cnty. Sch.

Dist., 814 F.3d 1227, 1240 (11th Cir. 2016) (describing “McDonnell Douglas’s

pitfall of demanding that employees show pretext” as “unnecessary” under

motivating factor test).

We find a triable issue of material fact under the motivating-factor test.

Feeback offered evidence that he was “ostensibly terminated” for his profane text,

while younger employees faced no repercussions for swearing in the workplace.

That disparate treatment, viewed together with the lack of investigation into the

intended recipient of his texts, could convince a reasonable jury that Swift fired

Feeback because of his age. Thus, we reverse the grant of summary judgment

on Feeback’s age discrimination claim and remand for trial.

B. Workplace Harassment

Feeback next claims Swift hosted a hostile-work environment. To succeed,

Feeback must prove these elements: (1) membership in a protected group;

(2) unwelcome harassment; (3) because of that group membership; (4) which

impacts a term, condition, or privilege of employment. See Haskenhoff v.

Homeland Energy Sols., LLC, 897 N.W.2d 553, 571 (Iowa 2017). To satisfy the

fourth element, Feeback must show his workplace was “permeated with

discriminatory intimidation, ridicule, and insult sufficiently severe or pervasive to
13

alter the conditions” of his employment and “create an abusive working

environment.” Id. In considering this standard, we weigh: (1) the conduct’s

frequency; (2) its severity; (3) whether the conduct was physically threatening or

humiliating or merely offensive; and (4) whether the conduct unreasonably

interfered with job performance. Farmland Foods, Inc. v. Dubuque Hum. Rts.

Comm’n, 672 N.W.2d 733, 744 (Iowa 2003).

The summary-judgment record includes several incidents that Feeback

considers harassing—some by Carl, some by Mulgrew. For instance, Carl once

criticized Feeback’s management skills, claiming he was “sleeping at the wheel.”

Another time, Carl hung up while Feeback voiced safety concerns. And finally,

Carl stood silent while Mulgrew reprimanded Feeback for missing a meeting—

despite Carl excusing the absence. Turning to Mulgrew, Feeback asserts that the

general manager twice said the word “fuck” around him, including once while he

was on a bathroom break.

But even viewing Feeback’s evidence in the most favorable light, we cannot

find the offending conduct was pervasive or severe.10 First, the isolated instances

happened over seven months. Second, the conduct was not menacing. Third, it

was not physically threatening. And fourth, the incidents did not impact his job

performance. On this record, the grant of summary judgment was proper.

C. Wrongful termination

Third and finally, Feeback alleges wrongful termination. He claims his firing

was retaliatory, a response to his complaints about the unsafe trolley system. To

10 Feeback’s counsel acknowledged at oral argument that this claim was not as
strong as the age-discrimination cause of action.
14

prevail on this claim, Feeback must establish: (1) he engaged in a protected

activity; and (2) suffered adverse employment action; (3) because of that activity.

See Teachout v. Forest City Cmty. Sch. Dist., 584 N.W.2d 296, 299 (Iowa 1989).

Swift focuses on the third element: causation.11 For a retaliatory discharge

claim, the causation standard is higher than for a civil rights claim. Id. at 301.

Unlike the motivating-factor test for age discrimination, Feeback must show his

protected activity was the determinative factor in his termination. See Rivera v.

Woodward Res. Ctr., 865 N.W.2d 887, 893 (Iowa 2015). But it “need not be the

main reason behind the decision.” Smith v. Smithway Motor Xpress, Inc., 464

N.W.2d 682, 686 (Iowa 1990). Rather, the determinative factor is “the reason

which tips the scales decisively one way or the other.” Id.

We understand that causation and motive questions are generally best left

for resolution by a jury. See Fitzgerald v. Salsbury Chem., Inc., 613 N.W.2d 275,

289 (Iowa 2000). But summary judgment is proper if the plaintiff fails to link the

protected activity to the firing. See Phipps v. IASD Health Serv. Corp., 558 N.W.2d

198, 203 (Iowa 1997). That was the case here. First, seven months elapsed

between Feeback’s last-voiced safety concern and his termination. Second, when

Feeback was fired, Swift was updating the trolley system to address the concerns.

Third, the record lacks evidence Charboneau was aware of Feeback’s complaints.

11 Swift argued in the district court that Feeback’s safety complaints did not
“amount to a defined and well-recognized public policy and that Carl and Mulgrew
cannot be held individually liable for wrongful termination.” On appeal, Swift
contends we need not reach those issues if we find Feeback’s comments about
the trolleys were not the reason he was fired.
15

Given these circumstances, no reasonable jury could find Feeback’s safety alerts

tipped the scales toward termination.

To recap, we affirm the district court’s grant of summary judgment on the

hostile-work-environment and wrongful-termination causes of action. But we

reverse on the age-discrimination claim, remanding that cause of action for further

proceedings.

AFFIRMED IN PART; REVERSED IN PART, AND REMANDED.