Newkirk v. GKN Armstrong Wheels, Inc.

168 F.Supp.3d 1174

Brad Newkirk, Plaintiff,

v.GKN Armstrong Wheels, Inc. and John Does, Defendants.

No. C15-3127-MWB

United States District Court, N.D. Iowa, Central Division.

Signed March 9, 2016

Jonathan David Schmidt, Nazette, Marner, Nathanson & Shea, LLP, Cedar Rapids, IA, for Plaintiff.

Patrick Robert Martin, Stephanie J. Willing, Ogletree, Deakins, Nash, Smoak & Stewart, PC, Minneapolis, MN, for Defendants.

MEMORANDUM OPINION AND ORDER REGARDING DEFENDANT GKN ARMSTRONG WHEELS, INC.'S PARTIAL MOTION TO DISMISS PLAINTIFF'S AMENDED PETITION OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT

MARK W. BENNETT, U.S. DISTRICT COURT JUDGE, NORTHERN DISTRICT OF IOWA

TABLE OF CONTENTS

I. INTRODUCTION AND BACKGROUND ...1179

A. Factual Background ...1179

B. Procedural Background ...1182

II. LEGAL ANALYSIS ...1182

A. Summary Judgment Standards ...1182

B. Newkirk's Title VII Reverse Race Discrimination Claim ...1185

1. Is a Title VII reverse race discrimination claim cognizable? ... 1185

2. Is Newkirk's reverse race discrimination claim timely? ...1186

a. Did the original Petition contain a reverse race discrimination claim? ... 1186

b. Does Newkirk's reverse race discrimination claim relate back? ...1187

C. Newkirk's Promissory Estoppel Claim ...1189

1. Clear and definite promise ...1189

2. Reasonable reliance ...1191

D. Newkirk's Wrongful Termination Claim ...1191

E. Newkirk's Defamation Claims ...1193

F. Newkirk's Negligence Claims ...1196

G. Newkirk's Claims of Negligent Infliction of Emotional Distress ...1197

H. Newkirk's Intentional Infliction of Emotional Distress Claim ...1199

I. Newkirk's Invasion of Privacy Claim ...1200

III. CONCLUSION ...1202

Was a white employee discharged and discriminated against because of his age, race, disability, or possible workers' compensation claim, or was he fired for making an inappropriate comment? On its motion for summary judgment, the employer contends that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law on nearly all of the employee's claims. The employee contends that he is entitled to present to a jury his Title VII claims, as well as his Iowa common law claims. Thus, I must determine which, if any, of the plaintiff's challenged claims should go to a jury.

I. INTRODUCTION AND BACKGROUND

A. Factual Background

I set out only those facts, disputed and undisputed, sufficient to put in context the parties' arguments concerning defendant GKN Armstrong Wheels Inc.'s partial motion for summary judgment and resistance to it.¹ At least for the purposes of summary judgment, the facts recited here are undisputed.² I will discuss additional factual allegations, and the extent to which they are or are not disputed or material, if necessary, in my legal analysis.

Plaintiff Brad Newkirk was employed by defendant GKN Armstrong Wheels, Inc. (“GKN”). GKN has an Employee Handbook. The Employee Handbook states on its cover in capital letters that: “THIS EMPLOYEE HANDBOOK IS NOT A CONTRACT.” Defendant's App. at 22. The Employee Handbook further states, again in all capital letters, on its inside cover that: “THIS EMPLOYEE HANDBOOK DOES NOT CREATE A REAL OR IMPLIED EMPLOYMENT CONTRACT.” Defendant's App. at 23. GKN's Employee Handbook also states that GKN “will not tolerate harassment of its employees by anyone, including any ... employee... of GKN” and that this prohibition included harassment “based upon a person's race.” Defendant's App. at 33. GKN's Employee Handbook further states that:

GKN Wheels Armstrong employees should disclose in good faith instances of wrongdoing by other employees at any level with the knowledge that their concerns will be investigated and dealt with properly and sensitively and without fear of reprisal or disciplinary action.

Defendant's App. at 34.³ Such disclosures “will be promptly and impartially investigated by the Human Resource Manager or other senior GKN manager or designee.” Defendant's App. at 34.

GKN's Employee Handbook further sets out the “GKN Code,” which is designed to treat “employees justly.” Defendant's App. at 70, 76. The GKN Employee Handbook also provides that:

• All of our companies must operate employment procedures which ensure that all of the principles set out in this Code and GKN's Employment Policy and all applicable laws and regulations are complied with and are appropriate for local circumstances and conditions.

• All employment procedures must be fully communicated to and understood and upheld by all employees.

• We will treat all of our employees fairly and all of our companies and employees will ensure that there is no discrimination against any employee or prospective employee on the grounds of gender, sexual orientation, disability, religion, color, race or national or ethnic origin.

• All of our companies will ensure that there is no discrimination against any employee or prospective employee on the grounds of age other than where, in accordance with applicable law, contractual retirement dates are agreed.

• All decisions relating to selection for employment and promotion will be based on ability and merit.

• All of our employees are entitled to work in an environment which respects their human dignity and rights and which are free from all forms of harassment.

• All of our employees are entitled to clear terms and conditions of employment, disciplinary procedures, and effective complaints and consultation process.

Defendant's App. at 71.

GKN's Employee Handbook also states that “[i]t is the responsibility of all GKN companies and employees to ensure that the GKN Code is followed and that the GKN policies which underlie it are complied with. Defendant's App. at 71.

On October 4, 2010, Newkirk signed a Handbook Acknowledgement Receipt that states: “I understand that this employee handbook does not constitute an employment agreement or contract, and that the contents of this document are subject to change and interpretation at the discretion of Management.” Defendant's App. at 96.

In May 2014, a GKN employee reported to GKN's human resources department that Newkirk had said “Nigger rig” in that employee's presence. In addition to making a report, the employee made a hotline call complaint to GKN about Newkirk using the phrase, “Nigger rig.” Newkirk admitted in a written statement that he has used the phrase, “Nigger rig.”⁴

GKN investigated the complaint about Newkirk's statement by interviewing employees. During the investigation, more than one employee confirmed that Newkirk used the phrase “Nigger rig” in the workplace. GKN assessed Newkirk 13 disciplinary points for harassment and terminated Newkirk's employment on May 14, 2014. GKN's Employee Discipline Form issued to Newkirk in conjunction with his termination stated: “Discrimination. GKN has a zero tolerance policy with regard to harassment of employees. You admitted and were witnessed making a racial slur.” Defendant's App. at 104.

Newkirk appealed his termination. In his appeal of his termination, Newkirk admitted in his statement to using the phrase, “nigger rigged”, but alleges that he might not have said the whole phrase.⁵ Newkirk offered the following explanation:

On the morning in question, I, Mr. Bradley Newkirk, went to the shift meeting at the line side board. At the meeting, Josh Harmon, Dave Schroeder and I were discussing a die. I made a comment that was taken out of context, in an attempt to explain why we were using a die that did not work right. The comment made has been used by many people for generations as figure of speech; although I admit this does not make it any more appropriate. Feeling bad for what had just started to come out of my mouth, I immediately adjusted my comment. The comment I made about a die had been “We Ni *paused* Jimmy Rigged the die” knowing that it was about to sound real bad, I switched it to “Jimmy Rigged”. I am not even sure how much of the phrase I actually got out before I stopped and changed what I said. However, according [sic] my recollection, and the recollection of the coworkers present at the time, I actually never finished the statement. This comment was made as a figure of speech and not directed towards any individual. There was no racial intent, it was just a slip of the tongue.

Defendant's App. at 106.

B. Procedural Background

On June 15, 2015, Newkirk filed suit in Iowa District Court in and for Emmett County against GKN and John Doe defendants alleging causes of action for age discrimination, in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623 et seq ., the Iowa Civil Rights Act (“ICRA”), IOWA CODE Ch. 216, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ; disability discrimination, in violation of the Americans With Disabilities Act, 42 U.S.C. § 12101, et seq . (the “ADA”); and pendent state law claims for breach of contract, wrongful termination, defamation, negligence, negligent infliction of emotional distress, and intentional infliction of emotional distress. On July 7, 2015, GKN removed this case to this federal court asserting federal question jurisdiction, pursuant to 28 U.S.C. § 1441(b). On July 31, 2015, Newkirk filed an Amended Petition in which he alleged the following causes of action: (1) age discrimination, in violation of the ICRA (Count I); reverse race discrimination, in violation of Title VII (Count II); (3) age discrimination, in violation of the ADEA (Count III); (4) disability discrimination, in violation of the ADA (Count IV); (5) promissory estoppel (Count V); (6) wrongful termination (Count VI); (7) defamation (Counts VII and XI); (8) negligence (Counts VIII and XIV); (9) negligent infliction of emotional distress (Count IX); (10) negligent/intentional infliction of emotional distress (Counts X and XII); and (11) invasion of privacy (Count XIII). On November 17, 2015, GKN filed its Rule 12(B)(6) Partial Motion to Dismiss Plaintiff's Amended Petition or, in the Alternative, For Summary Judgment (docket no. 15). On December 2,...