E-FILED 2017 MAY 02 1:03 PM POLK - CLERK OF DISTRICT COURT

IN THE DISTRICT COURT OF IOWA FOR POLK COUNTY

JANE MEYER, Case No: LACL 133931

Plaintiff,

vs. PLAINTIFFS BRIEF IN SUPPORT

OF THE MOTION FOR
DIRECTED VERDICT
THE UNIVERSITY OF IOWA, BOARD OF
REGENTS, and the STATE OF IOWA,

Defendants.

Plaintiff hereby moves for a directed verdict in her favor on all claims asserted, and in

support of such motion, states the following:

I. Standard

On a motion for directed verdict, the trial court is required to view the evidence in the

light most favorable to the plaintiff, even if contradictory evidence exists. Fry v. Blauvelt, 818

N.W.2d 123, 134 (Iowa 2012 (analyzing a defendants motion for directed verdict). Evidence is

substantial when a reasonable mind would accept it as adequate to reach a conclusion. Godar v.

Edwards, 588 N.W.2d 701, 705 (Iowa 1999).

II. Retaliation in Violation of Iowa Code 216.11.

Plaintiff briefed this issue in her Motion for Summary Judgment and now supports those

arguments with additional evidence and testimony presented at trial. The Iowa Civil Rights Act

prohibits retaliation for lawfully opposing discriminatory practices.

It shall be an unfair or discriminatory practice for: . . . (2) Any person

to discriminate or retaliate against another person in any of the rights
protected against discrimination by this chapter because such person
has lawfully opposed any practice forbidden under this chapter.

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Iowa Code 216.11 (2). In order to ensure that employers cannot engage in any activity that would

chill its employees right to report or oppose discrimination in the workplace this provision must

be interpreted broadly. Cf Goodpaster v. Schwans Home Serv, Inc., 849 N.W.2d 1, 910 (Iowa

2014). As Meyer briefed in her Motion for Summary Judgment, this particular claim relies upon

retaliation by association with one who engaged in protected activity. See Thompson v. N. Am.

Stainless, LP, 562 U.S. 170, 174 (2011). While testimony and the evidence at trial has established

Meyer also engaged in protected activity herself by submitting a formal complaint to Defendants

on December 4, 2014, just one day before she was removed from the Athletic Department, Meyer

maintains a separate claim for Defendants retaliation against Meyer for Griesbaums protected

activity. See Boyle v. Alum-Line, Inc., 710 N.W.2d 741, 75051 (Iowa 2006).

Further, as fully discussed in Meyers Motion for Summary Judgment the standard to prove

a claim under Chapter 216 is a motivating factor. DeBoom v. Raining Rose, Inc., 772 N.W.2d

1, 1213 (Iowa 2009).1 The Iowa Supreme Court has held that a claim brought pursuant to the

Iowa Civil Rights Act only requires that a plaintiff prove the illegal reason played a part in the

decision. Id. All a plaintiff has to prove is that the protected activity was a factor that played a part

in her removal. See id. at 13. It does not have to be the sole reason or even the reason the

predominates. Id. (holding that the higher burden [determining factor] is not required by either

the Iowa Civil Rights Act or case law (citing Iowa Code 216.6(1)(a), (2)(d))). Further, there is

no burden shifting for Defendants to offer other legitimate business reasons, because the testimony

at trial and evidence admitted at trialDefendants admissions in emails and answers to

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DeBoom is controlling in defining the causation standard as a motivating factor in Chapter 216
claims. See DeBoom, 772 N.W.2d at 13. Even before DeBoom, the Iowa Supreme Court rejected
a determining factor or a but-for causation standard in ICRA claims. City of Hampton v.
Iowa Civil Rights Commn, 554 N.W.2d 532, 535-36 (Iowa 1996); see also Hulme v. Barrett,
480 N. W.2d 40, 42 (Iowa 1992).
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interrogatoriesare all direct evidence of retaliation. See Couch v. Iowa DHS, No. 150432, 2016

WL 5930340, * 5 (Iowa Ct. App., Oct. 12, 2016). Direct evidence of retaliation exists when there

is credible evidence of conduct or statements of supervisors which may be seen as 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).

At trial, Gary Barta acknowledged that he had sent the email noting the illegal reason for

Meyers removal from the athletic department and that he had told Meyer that the reason he was

removing her from athletics was because she had disclosed she was in this relationship and if

her partner Tracey Griesbaum had filed suit he couldnt keep her in the department. (Tr. Trans. p.

19). Moreover, Barta acknowledged that Griesbaums impending discrimination lawsuit, a

protected activity under Iowa law, and Meyer association with Griesbaum by means of their

relationship played a part in his decision to remove Meyer from the department. See Iowa Code

216.11.

Q: Would you agree, sir, that at least part of the reason why you
transferred Jane Meyer from the department is because she and her
partner had disclosed that they have been in a long-standing
relationship?

A: Yes, that would be part of the reason, with more explanation.

Q: Would you agree, sir, that part of the reason is that because Ms.
Meyers partner, Ms. Griesbaum, publicly stated that she intend to
sue the University for her termination and alleged disparity in the
treatment of womens and mens athletics at Iowa?

A: She being Ms. Griesbaum?

Q: Yes.

A: Yes.

(Tr. Trans. p. 15) (emphasis added). Additionally, Gene Taylor testified that he understood that

Meyers removal was more related to the threatened litigation and her relationship with

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Griesbaum. Moreover, Barta himself could not refute that he might see removal from the athletic

department as discipline if it had happened to him. (Tr. Trans. p. 7). Further, Iowa law recognizes

that Internal transfers from department to department can also constitute adverse employment

action when accompanied by a negative change in the terms and conditions of employment, or

when the transfers substantially affect future career prospects. Farmland Foods, Inc. v. Dubuque

Human Rights Commn, 672 N.W.2d 733, 742 (Iowa 2003). As numerous individuals testimony

established, removal from the athletic department substantially affected Meyers ability future

career prospects in athletics. As Meyer has proven by Defendants own testimony and Defendants

documents that Defendants retaliated against her for her partners assertion of her rights under

Iowa Code 216.6 for the discrimination she suffered at the hands of the Defendants, this Court

should grant Plaintiffs motion for directed verdict as to Meyers claim under Iowa Code 216.11.

Cf. Thompson, LP, 562 U.S. at 174.

III. Gender and Sexual Orientation Discrimination in Violation of Iowa Code

216.6.

In addition to Meyers claim for retaliation for her partners protected activity and her

opposition to the Defendants double standard and discrimination against Griesbaum, Meyer also

has claims arising out of discrimination she experienced. Testimony at trial has established that as

a woman in a male dominated field, Meyer had the difficult task of not only performing her job

but also navigating the choppy waters of earning the respect the male employees in her department,

the director of athletics, coaches, and staff. However, this task was not always smooth sailing

despite the fact that, as the trial evidence of Meyers performance evaluations have shown and

testimony has proven, Meyer performed her job very well and with integrity. (Ex. 33, 181, 89).

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As briefed above in her a claim for gender or sexual orientation discrimination, Meyer must

prove that Defendants discriminated against Meyer and being a woman or gay was a motivating

factor their decision to take adverse action against Meyereither her removal or later termination.

DeBoom, 772 N.W.2d at 1213. Meyers claims for retaliation based on her December 4, 2014

complaint to Barta will also be governed by the same standard and laws as described above.

However, unlike Meyers claim for retaliation based upon Defendants admission of the removal

for being associated with Griesbaums discrimination litigation, Meyers other retaliation claim

relates to her own testimony and evidence in the form of Defendants documents amount other

things that Meyer complained about discrimination and the day after that complaint was given to

Barta, Meyer was removed from the Athletic Department.

Testimony at trial established that the first time Barta heard about the fact that Jane was a

lesbian and in a relationship with Griesbaum was from members of staff in 2011, which as Bartas

testimony established was the beginning of the second phase of his working relationship with

Meyer, when he began viewing Meyer negatively. (Tr. Trans. p. 4952). While Barta claimed this

information was only rumors, he also denied knowing about the rumors until confronted with

evidence to the contrary. Barta testified that the second phase of their relationship breakdown

began in 2013, which was the next time that Barta received information that Meyer and Griesbaum

were believed to be in a relationship. (Tr. Tran. p. 10914).

The third phase Barta testified to in terms of the working relationship breakdown was after

the field hockey investigation, which investigated Meyer and Griesbaums relationship. By Bartas

own testimony it was after Meyer challenged Barta actions as discriminatory and supported

womenher partner includedin the department who had also experienced discrimination, that

he felt she was being impossible and needed to remove her from athletics. (Tr. Tran. p. 5052).

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Additionally, testimony also established that while there was an investigation in Meyers

and Griesbaums relationship, males did not receive similar treatment when they had a relationship

that might violate the Universitys Conflict of Interest policy. Kirk and Brian Ferentz testified that

while Kirk had hired his son Brian to work at the University, neither of them had ever been under

investigation to determine if a conflict of interest policy was violated, even though the evidence

showed the pairs management plan was not put into place until after Mr. Ferentz had offered his

son the job. Further, Mr. Ferentz testified that when he hired his son -in-law into the Department,

an investigation was not performed, even though he did not disclose the conflict to the University

for an extended amount of time. As soon as the violation was discovered, a management plan was

put into place. Here, the University found that Meyer and Griesbaums relationship did not violate

the conflict of interest policy before the investigation even began, but Barta continued to press for

an investigation into the homosexual relationship. There was also testimony and evidence

presented at trial that Barta and the University pursued investigations of student athlete complaints

and the coaches differently between male and female athletes and coaches.

Meyers testimony establishing her awareness of the investigation into her homosexual

relationship after the Vice President of HR (Sue Buckley) had determined it was not covered by

the University conflict of interest/anti-nepotism policy, the gender disparity of treatment for both

students and coaches in the athletic department, paired with the timing surrounding Bartas

learning of Meyers sexual orientation and the changes in her employment environment ultimately

leading to her removal, is more than sufficient to establish that Defendants adverse employment

actions of removal and termination was connected to the fact that Meyers is a gay women and

engaged in protected activity of complaining to Defendants about her own discrimination. See

Boyle v. Alum-Line, Inc., 710 N.W.2d 741, 75051 (Iowa 2006) (While mere coincidence of

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timing does not conclusively establish this element, the timing of the action, combined with all the

other circumstances present in this case, entitles her to a ruling on her retaliatory discharge

claim.). Therefore, the Court should grant Plaintiffs Motion for Directed Verdict as to her gender

and sexual orientation discrimination and retaliation claims.

IV. Unequal Pay in Violation of Iowa Code 216.6A.

Plaintiff brief this issue for the Court in her trial brief filed on April 5, 2017. As previously

briefed a claim for violation of Iowa Code 216.6A does not require Meyer to prove intent or a

culpable mental state. See Dindinger v. Allsteel, Inc., 860 N.W.2d 557, 564 (Iowa 2015).

Testimony and evidence at trial established that in order to create Gene Taylor position of Deputy

Athletic Director, which would replace/demote Meyer who from 2001 to 2014 served as second

in command of the department, Barta edited Meyers current job duties, assigning a little less than

half of the job duties listedalthough not half of the workloadto the new Deputy position. Thus,

the evidence at trial established that the new position was comprised almost entirely of duties

previously assigned to Ms. Meyer, that she, by Bartas own estimation in his performance reviews

of Meyer, was performing quite well. Thus, when Taylor was hired for the newly created position

of Deputy, he was in a position that required substantially the same skills, effort, and responsibility

as Meyer, who until that time had been serving as the number two administrator in the department.

The evidence went on to show, and Defendants do not refute that when Taylor took the job

comprised of half of Meyers old job dutieshe was paid $245,000 for his first year in the position

and guaranteed a raise to $260,000. Meanwhile, as Defendants do not refute, Meyer was only being

paid $176,617.

Additionally, while Defendants seem to be asserting via testimony that Taylor was paid

that amount because that was the market rate for Deputy Directors, both the law and evidence do

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not support that justification. First, the market data provided by Defendants as justification for

Taylors salary, was in fact salaries for Senior Associate Athletic Directors, Meyers actual

position, supporting the fact that Meyer should have been paid at Taylors higher rate before the

new position was even created. Moreover, the Courts have warned against allowing employers to

utilize a market-theory defense to support paying a male more than a female for similar work. See

Drum v. Leeson Elec. Corp., 565 F.3d 1071, 1073 (8th Cir. 2009) (When prior salary is asserted

as a defense to a claim of unequal pay, this court carefully examines the record to ensure that an

employer does not rely on the prohibited market force theory to justify lower wages for female

employees simply because the market might bear such wages.). Additionally, the Iowa General

Assembly has listed a number of affirmative defenses to a claim for Unequal Pay (none of which

Defendants plead) and noticeably missing from the list is that the pay is commensurate with a

market value for an employee. Iowa Code 216.6A. Allowing this type of defense would do

nothing more than perpetuate the system of unequal pay between males and females, as the market

has historically paid more for men and likely without correction that discriminatory treatment

would continue without end. As the evidence at trial has established that Defendant employed

Meyer and Taylor, both of whom were in positions requiring substantially equal skill, effort, and

responsibility and were performing their positions under similar working condition, along with the

fact that Defendants have not plead any of the statutory defenses to an equal pay claim, the Court

should grant Plaintiffs Motion for Directed Verdict for her Equal Pay violation claim.

V. Violation of Iowa Code 70A.28

Again, as Plaintiff fully briefed the legal standard for a claim pursuant to Iowas

whistleblowers statute in her Trial Brief, Meyer will refrain from briefing this issue for the Court

again. As previously briefed, in order to prove her whistleblower claim, Meyer must prove that

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she disclosed Bartas violations of state and federal laws and rule to a public official and as a

reprisal for continuing to bring her complaints of gender and sexual orientation discrimination,

Barta terminated her. Defendants do not challenge that the Board of Regents is a public official as

contemplated by the statute. At trial, the evidence proved that Meyer sent her complaint to the

Board of Regents in 2015, reporting that Barta had violated university policy (made pursuant to

the Boards directive as an administrative body) and state and federal law by engaging in gender

and sexual orientation discrimination and unequal pay on the basis of gender. (Ex. 98). As noted

above the testimonies and evidence demonstrates that the cumulative evidence available to Meyer

at the time she made her complaint more than establishes that she had a reasonable belief that Barta

had and was continuing to violate these laws. Moreover, Barta testified and evidence showed after

Meyer had sent her report of Bartas violations to the Board he made the decision to terminate

Meyer by refusing to pay her salary any longer, despite prior assurances that she would return to

the athletic department in the future. (Tr. Tran. p. 23). Thus, the Court has been presented with

more than substantial evidence that Defendants violated Iowa whistleblower statute by terminating

Meyer and the Court should grant Plaintiffs Motion for Directed Verdict as to Meyers claim for

retaliation in violation of Iowa Code 70A.28.

Conclusion

For the reasons outlined in this motion and the evidence presented at trial, Plaintiff

respectfully requests the Court grant her Motion for Directed Verdict against Defendants in this

matter.

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Respectfully submitted,

NEWKIRK ZWAGERMAN, P.L.C.

/s/ Lori Bullock

Jill M. Zwagerman AT0000324
jzwagerman@newkirklaw.com
Thomas Newkirk AT0005791
tnewkirk@newkirklaw.com
Lori Bullock AT0012240
lbullock@newkirklaw.com
521 E. Locust Street, Suite 300
Des Moines, IA 50309
Telephone: 515-883-2000
ATTORNEYS FOR PLAINTIFF

Original filed.

Copy to all legal parties via EDMS.

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