A magistrate judge from the Northern District of Iowa granted summary judgment to a parochial school district, which was sued for, among other things, retaliating against an employee by terminating him from a volunteer position as official scorekeeper at high school games.
Plaintiff David Newbrough was an employee of Bishop Heelan Catholic Schools (BHCS) from August 11, 2003, through January 25, 2013. Most recently, he was the director of finance for BHCS. The Diocese of Sioux City is a religious corporation, association, or society. It is comprised of 24 counties in northwest Iowa, with 112 parishes. Defendant R. Walter Nickless was installed as Bishop of The Diocese on January 20, 2006, and currently holds that position.
BHCS, also a defendant, is a religious corporation and religious educational institution. It is one of 16 school systems within The Diocese. There are approximately 1,600 children enrolled in BHCS, in grades pre-K through 12, at five locations throughout Sioux City.
Defendant Dan Ryan has been the superintendent of schools for The Diocese since June 2009, and is in that position at the present time. As the superintendent for The Diocese, Ryan is the lead person for the Diocesan Office of Education, and works with all of the 16 school systems within The Diocese.
On January 11, 2013, Newbrough was informed by Ryan that the position of director of finance was being eliminated and that he was being terminated. The position was downgraded to that of financial controller, to perform some of the same work previously assigned to Newbrough. Katie Firestine, a 30-year-old Catholic, was hired by BHCS to fill the new position. On January 11, 2013, Newbrough was 50 years old and not Catholic.
On the same date, Angie Heller, the director of marketing, was also informed that her position was being eliminated and she was being terminated. At the time of her termination, Heller was 45 years old and Catholic.
Newbrough ultimately sued. In the underlying complaint, the plaintiff alleged that he was terminated from his employment as CFO of BHCS because of his age and religious affiliation. Newbrough also claimed that after he filed a complaint with the ICRC and the Equal Employment Opportunity Commission (EEOC), the defendants retaliated against him by terminating him from a volunteer position as official scorekeeper at basketball games.
The parties moved for summary judgment, leading to the instant opinion. While summary judgment was granted to the defendants on the underlying claims, the retaliation claim is relevant for Hackney Publications’ readers.
Plaintiff Was a Scorekeeper
Newbrough was the BHCS varsity boys’basketball official scorekeeper for multiple seasons, including the 2012-2013 season. The official scorekeeper for varsity boys’basketball games is a volunteer position. Newbrough did not receive any compensation for being the official scorekeeper, and it was not part of his employment or duties as the director of finance at BHCS. Newbrough was terminated as the official scorekeeper on November 13, 2013, prior to the start of the 2013-2014 boys basketball season. Newbrough claimed that his firing was retaliation in violation of Title VII and the ADEA. Newbrough sought only emotional stress damages for his retaliation claim. The defendants claimed that they are entitled to summary judgment on Newbrough’s retaliation claim because he failed to exhaust his administrative remedies for the claim, and he failed to establish a prima facie case of retaliation.
Addressing the first argument, the court noted that the retaliation claim was separate from the other core action, and therefore required its own path for purposes of an appeal.
“Newbrough’s ‘termination’ from being a volunteer scorekeeper was a separate discrete act from his termination from employment giving rise to his religious and age discrimination complaint, requiring a separate filing of retaliation with the EEOC. Richter v. Advance Auto Parts, Inc., 686 F.3d 847 (8th Cir. 2012),” wrote the court. “Because Newbrough did not file a retaliation charge with the EEOC, he failed to exhaust his administrative remedies, and his retaliation claim is dismissed. See Id.”
He also failed to establish a prima facie case of retaliation, according to the court. “Without direct evidence of a retaliatory motive, the Court analyzes retaliation claims (whether under Title VII, the ADA, or the ADEA) under the burden-shifting framework of McDonnell Douglas. Stewart v. Independent School Dist. No. 196, 481 F.3d 1034, 1042-43 (8th Cir. 2007). Using the analytical construct of McDonnell Douglas, the initial burden is on the plaintiff to establish a prima facie case of retaliation. Id. at 1043. The plaintiff in a retaliation action must produce evidence ‘(1) that he or she engaged in statutorily protected activities; (2) an adverse employment action was taken against him or her; and (3) a causal connection exists between the two events.’ Id. (quoting Green v. Franklin Nat’l Bank, 459 F.3d 903, 914 (8th Cir. 2006)).
“Here, Newbrough is unable to show that an adverse employment action was taken against him. An adverse employment action is ‘exhibited by a material employment disadvantage, such as a change in salary, benefits, or responsibilities.’ Williams v. City of Kansas City, Mo., 223 F.3d 749, 753 (8th Cir. 2000). In being relieved of his duties as an unpaid volunteer scorekeeper, Newbrough had no change in salary, benefits, or employment responsibilities. In fact, as an unpaid volunteer, Newbrough did not have an employment relationship with the defendants. See Jacob-Mua v. Veneman, 289 F.3d 517, 520-521 (8th Cir. 2002) (providing that an unpaid volunteer is not an employee for purposes of a claim for retaliation). Moreover, Newbrough’s claim of emotional stress due to the embarrassment of not being the basketball scorekeeper does not amount to a ‘material employment disadvantage.’ See Redo v. Creighton University, 521 F.3d 934, 940-941 (8th Cir. 2008) (providing that in the retaliation context, feelings of being ostracized are not materially adverse); Weger v. City of Ladue, 500 F.3d 710, 727-728 (8th Cir. 2007) (same). The court concludes that Newbrough’s retaliation claim fails because he is unable to make a showing that an adverse employment action was taken against him, as required for the second element of his prima facie case. See Stewart, 481 F.3d at 1043. Therefore, because Newbrough did not establish the second element of his prima facie case, he is not entitled to recover from the defendants on his claim of retaliation.”
David Newbrough v. Bishop Heelan Catholic Schools, The Diocese of Sioux City, R. Walker Nickless, and Dan Ryan; N.D. Iowa; No. C13-4114, 2015 U.S. Dist. LEXIS 22053; 2/23/15
Attorneys of Record: (for plaintiff) R Scott Rhinehart, LEAD ATTORNEY, Rhinehart Law, PC, Sioux City, IA. (for defendant) Richard H Moeller, LEAD ATTORNEY, Berenstein Moore Berenstein Heffernan & Moeller, LLP, Sioux City, IA.
