Beth M. Avery v. Iowa Department of Human Services, State of Iowa, and Michael McInroy

IN THE COURT OF APPEALS OF IOWA

No. 22-1012
Filed July 13, 2023

BETH M. AVERY,
Plaintiff-Appellant,

vs.

IOWA DEPARTMENT OF HUMAN SERVICES, STATE OF IOWA and MICHAEL
McINROY,
Defendants-Appellees.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Michael D. Huppert,

Judge.

Beth Avery appeals the entry of adverse summary judgment on her claims

of sex and sexual-orientation discrimination against the Iowa Department of

Human Services, now known as the Iowa Department of Health and Human

Services. AFFIRMED.

Eric M. Updegraff, Brent L. Hinders, and Alex S. Dornacker of Hopkins &

Huebner, P.C., Des Moines, for appellant.

Brenna Bird, Attorney General, Eric Wessan, Solicitor General, and Kayla

Burkhiser Reynolds and Job Mukkada, Assistant Attorneys General, Des Moines,

for appellees.

Heard en banc, but decided by Bower, C.J., and Tabor, Greer, Schumacher,

Ahlers, Badding, Chicchelly, and Buller, JJ.
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BOWER, Chief Judge.

Beth Avery appeals the district court’s grant of summary judgment to the

Iowa Department of Health and Human Services (HHS)1 and Michael McInroy on

her claims of sex and sexual-orientation discrimination following her 2016

termination from employment. On our review of the summary judgment record, we

find no error of law or reason to modify the district court’s ruling. We therefore

affirm.

I. Background.

In 2016, Avery was a staff supervisor of social workers who conducted child

and adult protective assessments for HHS. Her immediate supervisor was

McInroy, a service area manager. LaVerne Armstrong was the HHS division

administrator for field operations.

In December 2016, Avery was terminated by HHS after an investigation into

her supervision of the social worker assigned to do a child protective assessment

(CPA) of a child who died while the assessment remained open. Avery filed claims

asserting HHS violated the Iowa Civil Rights Act (ICRA), Iowa Code section 216.6

(2016), in a number of respects. This appeal concerns only her claims of

discrimination based on sex and sexual orientation.

Under the ICRA, it is “an unfair or discriminatory practice . . . to discharge

any employee, or to otherwise discriminate in employment . . . because of the age,

race, creed, color, sex, sexual orientation, gender identity, national origin, religion,

1The Department of Human Services recently merged with the Department of
Public Health resulting in what is now known as the Iowa Department of Health
and Human Services.
3

or disability of such applicant or employee, unless based upon the nature of the

occupation.” Iowa Code § 216.6(1)(a) (emphasis added).

Avery asserts summary judgment is inappropriate here because there are

genuine issues of fact whether her sex or sexual orientation was a motivating factor

for the decision to terminate her employment.

II. Scope and Standard of Review.

Our review of a grant of summary judgment is for correction of errors at law.

Hedlund v. State, 930 N.W.2d 707, 715 (Iowa 2019). A grant of summary judgment

is appropriate when the record, viewed in the light most favorable to the nonmoving

party, “shows no genuine issues of material fact and the moving party is entitled to

judgment as a matter of law.” Id.; Iowa R. Civ. P. 1.981(3). “Even if the facts are

undisputed, summary judgment is not proper if reasonable minds could draw

different inferences from them and thereby reach different conclusions.”

Hedlund, 930 N.W.2d at 715 (citation omitted).

III. Discussion.

A plaintiff can prove discrimination under the ICRA by direct or indirect

evidence. Id. at 719. In Vaughan v. Must, Inc., 542 N.W.2d 533, 538 (Iowa 1996),

our supreme court held: “The Price Waterhouse[2] method is used when direct or

circumstantial evidence is presented which tends to establish [the claimant’s status

as a member of a protected group] was a determining factor in the employment

2Price Waterhouse v. Hopkins, 490 U.S. 228, 258 (1989), superseded by statute,
as stated in Comcast Corp. v. Nat’l Ass’n of Afr. Am.-Owned Media, 140
S. Ct. 1009, 1017 (2020).
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decision. The McDonnell Douglas[3] method is an indirect burden shifting

framework.” (Internal citation omitted.)

On the direct evidence track, “[a]fter the direct evidence has been
presented [by the plaintiff], the employer then bears the burden of
establishing by a preponderance of the evidence it would have made
the same decision even in absence of the improper motive.” But
direct evidence of a discriminatory motive is rarely trumpeted by the
employer and is almost never available.

Stansbury v. Sioux City Cmty. Sch. Dist., No. 21-0864, 2022 WL 2824284, at *4

(Iowa Ct. App. July 20, 2022) (alterations in original) (internal citation omitted).

Recently our supreme court modified the McDonnell Douglas framework

concerning summary judgment in ICRA discrimination claims resting on indirect

evidence. See Feeback v. Swift Pork Co., 988 N.W.2d 340, 347 (Iowa 2023). The

court explained:

We do so to align the summary judgment test with the mixed-motive
causation standard and the same-decision defense at trial. Under
our modified McDonnell Douglas test, employees “must carry the
initial burden of establishing a prima facie case of [sex]
discrimination.” Employees do so by showing that they are members
of a protected group [(i.e., due to their sex or sexual-orientation)],
were qualified for their positions, and the circumstances of their
discharge raised an inference of discrimination. Then, the employer
must “‘articulate some legitimate, nondiscriminatory reason’ for its
employment action.” At that point, the burden shifts back to the
employee to demonstrate the employer’s proffered reason is
pretextual or, while true, was not the only reason for [their]
termination and that [their sex or sexual-orientation] was another
motivating factor.

Id. at 347–48 (footnote and internal citations omitted).

The district court’s analysis employed this approach:

That “familiar” analysis places upon Avery the initial burden of
production to generate a genuine issue as to whether there is a prima
facie claim of such discrimination. The elements of a prima facie

3 McDonnell Douglas v. Green, 411 U.S. 792, 802–03 (1973).
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claim are: (1) she is a member of a protected class; (2) she was
performing the work satisfactorily; and (3) she suffered an adverse
employment action. In the event a question of material fact is raised
as to a prima facie claim, the burden of production then shifts to the
defendants to raise a genuine issue of fact as to a legitimate,
nondiscriminatory reason for the termination. Finally, should the
defendants articulate such a reason, the burden then shifts back to
Avery to establish a genuine issue of fact as to whether the
employer’s reason was pretextual and that unlawful discrimination
was the real reason for the termination.

The trial court concluded the undisputed facts showed Avery had met her

initial burden of establishing a prima facie discrimination claim and that HHS gave

a legitimate, nondiscriminatory reason for her termination. Thus, the burden

shifted back to Avery to establish a genuine issue of fact as to whether HHS’s

reason was pretextual. See Feeback, 988 N.W.2d at 348.

HHS and McInroy assert Avery’s termination was warranted due to

shortcomings in Avery’s supervision of social workers, which was discovered after

an investigation into the death of a child, N.F., and a review of twenty other

randomly selected cases under Avery’s supervision.

N.F. came to the attention of HHS in May 2016, and a CPA was opened.

HHS was notified in October 2016 that N.F. had died. The CPA remained open,

but the time the CPA had been open was much longer than normally expected.

HHS opened an investigation into the social worker assigned to conduct the

CPA, Amy Sacco, and Sacco’s supervisor, Avery, to determine whether there had

been any violations of HHS work rules, policies, or procedures in handling the

case. The investigation was conducted by a “leadership team” that included

Armstrong; McInroy; Kristin Konchalski, a social worker administrator and Avery’s

direct supervisor between February 2015 and December 2016; Tracy White, also
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a social worker supervisor; Pauline Rutherford, a business manager for HHS; and

Vicki Hendershot, Rutherford’s peer and a business manager asked to participate

in the interviews as a neutral third-party from outside the Des Moines service area.

Both Avery and Sacco were interviewed twice; in addition, a random audit

was conducted of twenty other cases assigned to Avery. During her interviews

with Rutherford, White, and Hendershot, Avery admitted she failed to adhere to

HHS’s policies, procedures, and best practices. The investigators found that Avery

and Sacco violated HHS’s code of conduct and work rules in N.F.’s case and seven

others when they failed to follow HHS’s policies, procedures, best practices, and

the guidelines contained in HHS manuals.

Armstrong, Rutherford, White, McInroy, and Konchalski met on several

occasions to discuss the ongoing investigation and the investigators’ findings. The

group agreed that “they had never seen a case like this, that it was egregious, and

that termination was warranted.” HHS asserts no single person made the decision

to terminate Avery’s employment, but the ultimate authority to make the

termination decision rested with Armstrong.

Avery’s employment with HHS was terminated on December 16, 2016. In

a letter issued that date Avery was advised, “This action is being taken following

an investigation of your supervision of a particular employee. Review of that

employee’s cases revealed [seven] in which your actions, or lack thereof, affected

the course of these cases and/or ultimately the safety of children.”

Avery claims McInroy drove the termination decision based on his bias

against women and lesbians. Avery points to an interrogatory signed by McInroy
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during the proceeding dealing with her grievance with the Iowa Public Employment

Relations Board that he “ultimately decided to terminate [Avery’s] employment.”

Avery also notes White’s deposition testimony that McInroy routinely

commented on Avery’s sexuality; according to White, McInroy would often state

that he did not want to picture Avery and her partner (also an HHS employee)

having sex and that it would bring unwanted “drama” into the workplace if both

Avery and her partner were promoted to supervisors “because lesbians break up

and move and cause drama.” Avery also points to White’s testimony that McInroy

favored people he liked and were loyal to him.

In her brief, Avery asserts:

Tracy White’s testimony in this case speaks to a pattern of
“routine” animosity based on Avery’s sexual orientation and [sex] that
a reasonable jury could find to have contributed to McInroy’s decision
making and ultimately terminating Avery. White testified that, along
with details of a few specific events, the instances of disparaging
comments about Avery and her partner were so routinely made that
she could not keep track of all of the times they occurred. Summary
judgment should not be granted just because White cannot point to
a single, detailed, event close enough to Avery’s termination based
on her testimony.
There is testimony that McInroy had an “in crowd” and an “out
crowd” at [HHS] while Avery was employed there. Avery was clearly
in the “out crowd,” meaning she was treated differently and was
wholly disliked or hated by McInroy. A reasonable jury could make
an inference that, with all the evidence in the record regarding
Avery’s treatment at the hands of McInroy, these sexist and
homophobic comments likely continued up until Avery’s termination
and were routine circumstances of the workplace where Avery
worked and therefore was a factor in her being in the “out crowd”, as
well as being a factor in the decision to terminate.

Avery argues it is for a jury to decide White’s credibility.

In Feeback our supreme court noted, “[A] common approach to show

pretext is to introduce evidence that the employer treated similarly-situated
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employees in a disparate manner.” 988 N.W.2d at 350 (citation omitted). It

cautioned the test for whether someone is sufficiently similarly situated “is

rigorous.” Id.; see, e.g., Gardner v. Wal-Mart Stores, Inc., 2 F.4th 745, 750 (8th

Cir. 2021) (noting “individuals used for comparison must have dealt with the same

supervisor, have been subject to the same standards, and engaged in the same

conduct without any mitigating or distinguishing circumstances” (citation omitted)).

Our supreme court determined the claimant “must prove he [or she] and the other

employees were similarly situated in all relevant respects.” Feeback, 988 N.W.2d

at 350 (internal quotation marks and citation omitted). But the claimant “need not

show the other employees committed ‘the exact same offense’[; r]ather, he must

establish that he ‘was treated differently than other employees whose violations

were of comparable seriousness.’” Id. (internal citations omitted).

The district court wrote:

The showing of pretext necessary to survive summary
judgment requires more than merely discrediting the employer’s
proffered reason for the adverse employment decision. Avery’s
protected class must have actually played a role in the employer’s
decision-making process and had a determinative influence on the
outcome. A material question of fact regarding pretext can be
demonstrated in at least two ways: (1) by showing that the
employer’s explanation is unworthy of credence because it has no
basis in fact; or (2) by persuading the court that a prohibited reason
more likely motivated the employer. The court’s inquiry is limited to
whether the employer gave an honest explanation of its behavior; it
should not “sit as a super-personnel department that reexamines an
entity’s business decisions.”
Avery does not argue that the stated reason for her
termination is unworthy of credence; rather, she focuses on the
claimed discriminatory animus harbored against her by McInroy and
its purported impact on the decision-making process. Discriminatory
comments by decisionmakers can be used to show pretext. In order
to infer that decision makers were influenced by discriminatory
feelings, the relevant time is in regard to the adverse employment
action complained of; such an inference is possible when the
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decision makers themselves, or those who provide input into the
decision, express such feelings around the time of, and in reference
to, the adverse employment action complained of.
Taking the record in a light most favorable to Avery, it is clear
that McInroy did harbor feelings that were not favorable to her, and
made statements accordingly. Not all of these feelings or statements
were tied to her status within a protected class, however; by her own
admission, she believed that the source of this friction stemmed from
their shared pursuit of a supervisory job (to the degree any reason
was given at all). Likewise, the adversarial nature of the [HHS]
investigation and the claim that Avery “had a target on her back” long
before the N.F. case have not been tied to any improper
discriminatory motive; to the contrary, the nature of the investigation
and its ultimate conclusion are undisputedly tied to only the
circumstances of the N.F. case.
....
Even with the benefit this court must afford Avery in light of
the nature of the present motion, she has failed to generate a
material issue of fact on whether the stated reason for her
termination was pretextual and that the decision to terminate her was
actually motivated by improper discrimination. As a result, the court
concludes that the defendants’ motion for summary judgment should
be granted and this case dismissed.

On our review of the summary judgment record, we find no error of law or

reason to modify the district court’s ruling. We therefore affirm.

AFFIRMED.