JAMES E. GRITZNER, District Judge.
Before the Court is Defendants' Motion for Summary Judgment in the above-captioned action. Plaintiff resists the motion. Also before the Court is Plaintiff's Motion to Strike. Defendant resists the motion. The matter came on for hearing on November 20, 2009. Paige Fiedler represented Plaintiff Julie Mahony (Mahony); Michael Reck and Kelsey Knowles represented Defendants Universal Pediatric Services, Inc. (UPSI), and Ultimate Nursing Services of Iowa, Inc. (UNSI)
I. SUMMARY OF MATERIAL FACTS
Mahony was hired by UPSI as its vice president of nursing to assume responsibility for regulatory and licensing compliance. UPSI provided its employees with an employee handbook that outlined UPSI's policies and procedures. One of Mahony's responsibilities was making sure that UPSI was Medicare certified in order to be reimbursed by Medicaid for home health care services.
In 2008, UPSI decided to open an office in Sheldon, Iowa, with the intention of opening by June 1, 2008. New home health care offices need to be Medicare certified by filling out Form CMS-855A in order to be reimbursed by Medicaid. Branch offices may register with Medicare by submitting a completed questionnaire.
At a meeting on Thursday, June 5, 2008, Mahony told Anderson, who is president and CEO of UPSI, "[w]e cannot do this," referring to opening the Sheldon office, because a CMS-855A had not yet been completed. Defs.' App. 13. During the meeting, Anderson insisted that Mahony was responsible for regulatory compliance and blamed Mahony for not completing the necessary forms. Both Mahony and Anderson became upset at this meeting. After the meeting, Mahony left work and did not return to her office until Monday, June, 9, 2008.
At about 8:20 a.m. on June 9, 2008, Mahony filed a grievance with UPSI's Human Resources Manager Ashley Wirtjes (Wirtjes) against UPSI for opening the Sheldon office. Mahony also included allegations of harassment and discrimination in her grievance. Anderson went to Mahony's office at about 9:45 a.m., complaining about Mahony's insistence that the opening of the Sheldon office be delayed and calling into question her continued employment with UPSI.
UPSI hired attorney Deb Tharnish to assist in the grievance investigation. UPSI issued a written decision regarding Mahony's grievance on June 10, 2008. UPSI concluded that the Sheldon office would not be opened until certification was in place and that, although the June 5 meeting was tense, there was no discrimination or harassment. The decision also included the statement, "As discussed during the investigation process and as part of company policy, retaliation will not be accepted." Defs.' App. 45. On June 13, 2008, attorney Gordon Fischer sent Mahony
On August 18, 2008, Mahony commenced this lawsuit in the Iowa District Court for Polk County, claiming that her termination violated public policy, constituted retaliation under the Federal False Claims Act (FCA), and was unlawful under principles of promissory estoppel. Defendants timely removed the case to this Court. Defendants filed a motion for summary judgment on all counts on July 15, 2009. Mahony filed a motion to strike on August 25, 2009, arguing that portions of Defendants' summary judgment appendix should be stricken because Defendants violated discovery procedures. After extension of time and completion of pleadings and briefing on the pending motions, the matters were fully submitted by September 21, 2009.
A. Motion to Strike
Mahony moves to strike three pages of employee relations files from UPSI's supplemental summary judgment appendix, specifically pages four to six containing Wirtjes' notes. Mahony asserts that UPSI produced these documents after the discovery deadline and failed to identify the documents when they were produced. Mahony also argues that the documents are not admissible under Federal Rule of Evidence 803(6). UPSI responds that no basis exists to strike the documents, the documents have in fact been produced in the manner Mahony requested, and the alleged irrelevance of the documents does not support a motion to strike.
The Court entered a scheduling order and discovery plan on October 6, 2008, setting a discovery deadline of June 1, 2009. The Court specifically ordered that "[d]iscovery shall be concluded, and not propounded, by June 1, 2009." Sched. Order & Disc. Plan ¶ 6 (emphasis added). On May 26, 2009, Mahony served a written discovery request on UPSI, under the mistaken impression that the discovery deadline was July 1, 2009. Mahony, realizing her mistake, moved for an extension of the discovery deadline, which this Court granted in part. Mahony was allowed to take four depositions by July 15, 2009, and UPSI was ordered to respond to Mahony's May 26 written discovery.
Mahony deposed Wirtjes on July 8, 2009. UPSI produced the documents in question on July 20, 2009, as a supplement to its initial June 29, 2009, response to the May 26 written discovery. UPSI referenced Wirtjes notes in its reply to Plaintiff's resistance to summary judgment for the purpose of disputing the facts set forth by Mahony in her resistance to summary judgment brief.
The Court's June 18, 2009, order granting Mahony's request to extend the discovery deadline did not impose a deadline upon UPSI to respond to Mahony's May 26 written discovery. The July 15, 2009, deadline applied only to depositions; thus, Mahony's assertion that Wirtjes' notes should be stricken because UPSI produced the notes after the July 15 deadline is without basis. Furthermore, the Court does not consider the thirty-two day interval between an order to respond to written discovery and production of documents worthy of sanction under these circumstances.
Additionally, the remedy that Mahony seeks for this discovery dispute is inappropriate.
Federal Rule of Civil Procedure 37(b) provides for specific sanctions when a party fails to comply with a discovery order. When a party fails to disclose information in response to written discovery, Rule 37(c) provides for substantially all of the same sanctions allowed by Rule 37(b).
A party must disobey a discovery order before sanctions may be imposed, which UPSI has not done. However, even if UPSI had disobeyed the scheduling order, Mahony seeks to strike documents from an appendix, a remedy not provided for in the rules.
B. Summary Judgment Standard
Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c). "A dispute is genuine if the evidence is such that it could cause a reasonable jury to return a verdict for either party." Miner v. Local 373, 513 F.3d 854, 860 (8th Cir.2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). On a motion for summary judgment, the Court views the evidence and inferences in the light most favorable to the nonmovant. Id. The nonmovant "must set forth specific facts sufficient to raise a genuine issue for trial" and "may not rest upon mere denials or allegations in the pleadings." Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly
C. False Claims Act
In count two of her complaint, Mahony alleges that UPSI violated the FCA whistleblower statute when it fired her. UPSI counters that the FCA does not apply because UPSI never made any false representations. UPSI also argues, and Mahony concedes, that FCA actions will not lie against individual defendants. An FCA retaliation claim "can only be against an employer." U.S. ex rel. Golden v. Ark. Game & Fish Comm'n, 333 F.3d 867, 870 (8th Cir.2003) (quotation omitted); 31 U.S.C. § 3730(h). Therefore, as an initial matter Defendants Tucker and Freeman are entitled to summary judgment on the FCA retaliation claim as a matter of law.
The FCA whistleblower statute entitles an employee to all relief necessary to make that employee whole if she is
31 U.S.C. § 3730(h)(1). In order to establish an FCA whistleblower retaliation claim, a plaintiff must prove that "(1) the plaintiff was engaged in conduct protected by the FCA; (2) the plaintiff's employer knew that the plaintiff engaged in the protected activity; (3) the employer retaliated against the plaintiff; and (4) the retaliation was motivated solely by the plaintiff's protected activity." Schuhardt, 390 F.3d at 566.
1. Protected Conduct Under the FCA
Mahony argues that she engaged in conduct protected by the FCA when she demanded that operations out of the Sheldon office immediately cease because she would not acquiesce to Medicaid fraud and that she filed a grievance in accordance with her demand. UPSI argues that Mahony's claim fails because Mahony did not believe that a false claim had actually been submitted.
Protected activity is established when the employee's actions satisfy the following conditions: "(1) the employee's conduct must have been in furtherance of an FCA action;" and "(2) the employee's conduct must be aimed at matters which are calculated, or reasonably could lead to a viable FCA action." Id. at 567. The second condition is satisfied if the employee in good faith believes and a reasonable
Both parties' arguments focus on the second condition; however, the facts do not present clear evidence that Mahony satisfied the first element by showing that she acted in furtherance of an FCA action. Schuhardt, a case in which the Eighth Circuit reversed a grant of summary judgment in an FCA retaliation claim, provides guidance regarding the "in furtherance of condition of an FCA action. Schuhardt, 390 F.3d at 569. The court in Schuhardt found the following salient facts sufficient to conclude that the plaintiff's actions were in furtherance of a qui tam
Id. at 567. The court found it significant that the district court ignored the fact that the employee had copied files and took them home to substantiate the existence of fraud. The record does not reveal any similar action taken by Mahony.
Other circuits have dealt with the "in furtherance of" condition. In McKenzie v. BellSouth Telecommunications Inc., 219 F.3d 508 (6th Cir.2000), the court held that when an employee makes numerous reports of wrongdoing to supervisors, he is not acting in furtherance of a qui tam action, and repeated refusals to falsify records is not sufficiently connected to exposing fraud against the federal government to support a qui tam action. In Eberhardt v. Integrated Design & Construction, Inc., 167 F.3d 861 (4th Cir.1999), the court held that an employee may establish the first element of an FCA retaliation claim when he writes a memo to his employer alleging violations of the FCA, advises his employer of his intentions to file a qui tam action, and goes to the FBI to advise it of evidence relevant to an FCA claim stored by the employer. In United States ex rel. Yesudian v. Howard University, 153 F.3d 731 (D.C.Cir.1998), the court held that an employee presented evidence sufficient to gain the protection of the FCA whistleblower statute when he had gathered evidence, including photographs, that showed that another employee had committed
Mahony argues that she had a good faith and objectively reasonable belief that UPSI was "possibly committing fraud against the government." Pl.'s Br. 32 (emphasis in original). UPSI argues that the Court need not even reach the question of reasonableness because there is no evidence to support a good faith belief that UPSI was committing fraud. Before even addressing that law relating to their arguments, Mahony's argument reveals a possible timing problem. All of the law cited by the parties indicates that the employee must at least believe that the employer is committing fraud in the present tense or had committed fraud in the past tense. Mahony points to no law that would allow an FCA claim when an employee believes that the employee will or intends to or may submit a false claim to the government in the future. Mahony puts forth as facts her knowledge of UPSI's intent to submit a false claim. She also asserts as fact her knowledge of Anderson's and Freeman's history of fraudulent claims, yet such assertions are unsubstantiated in the record apart from Mahony's own testimony. Mere allegations, without more, are insufficient to satisfy the showing required to resist a motion for summary judgment. Reed v. City of St. Charles, Mo., 561 F.3d 788, 791 (8th Cir.2009).
UPSI argues that Green v. City of St. Louis, Mo., 507 F.3d 662 (8th Cir.2007), controls the question of whether Mahony engaged in protected conduct while Mahony avers that Green is factually distinguishable. The Court finds Green to be on point. In Green, the employee brought an FCA retaliation claim, alleging that his employer had transferred his job duties and failed to rehire him because he alerted his employer to possible fraud. Id. at 668. The employee produced memoranda to substantiate his claim yet none that "described any actual fraudulent claim being presented to the government." Id. At his deposition, the employee stated that he did not know of any fraudulent information being submitted to the government, although he thought the employer's method of complying with government regulations was flawed. Id. In affirming the district court's grant of summary judgment for the employer, the Eighth Circuit noted,
Id. In this case, Mahony has only pointed to UPSI opening the Sheldon office as a basis for her possible FCA action. Like the employee in Green, Mahony has not pointed to any instance in which UPSI's practices had led to false statements to the
UPSI further argues that Mahony's belief that UPSI was going to submit a false claim cannot be considered reasonable because UPSI had ninety days to register any changes with Medicare. Medicare regulations provide that health care organizations should report changes to existing enrollment within ninety days of the effective date of the change. 42 C.F.R. § 424.520(b). Since it appears that UPSI would indeed have had up to ninety days to report a change, Mahony's belief that UPSI was going to commit a false claim is not objectively reasonable.
Because Mahony cannot show that she engaged in protected conduct, she has failed to satisfy an essential element of an FCA whistleblower retaliation claim. Therefore, summary judgment is appropriate on Mahony's FCA claim.
Assuming, arguendo, Mahony had shown that she engaged in protected activity, "[a]n employee has the burden of presenting enough evidence to demonstrate that the defendant was on notice that the `plaintiff was either taking action in furtherance of a private qui tam action or assisting in an FCA action brought by the government.'" Schuhardt, 390 F.3d at 568 (quoting Ramseyer, 90 F.3d at 1522). Employees whose responsibilities include investigation of fraud against the government must meet heightened requirements to establish an FCA retaliation claim by making it clear to the employer that the employee's actions went beyond the employee's assigned tasks. Id. at 568 n. 2. In Schuhardt, the court held that the employee's statements to her supervisors that the employer's billing practices were fraudulent were sufficient to provide the employer with notice that the employee was engaging in protected conduct because the employee was not tasked with investigating fraud. Id. at 568-69, 568 n. 2. Therefore, summary judgment was inappropriate in Schuhardt. Id. at 569. Schuhardt is distinguishable because, unlike the employee in Schuhardt, Mahony's job required her to ensure compliance with Medicare and Medicaid regulations so the company would not commit fraud. Hence, Mahony is subject to heightened requirements in showing that UPSI was on notice that she was engaging in protected activity. Even though Mahony alerted her supervisors to what she considered UPSI's regulatory non-compliance, Mahony's actions did not make it clear to UPSI that her activities went beyond her assigned task in furtherance of an FCA action. Therefore, even finding arguendo that Mahoney
D. Termination in Violation of Public Policy
UPSI argues that summary judgment must be granted on count one of the complaint because no public policy exists that protects Mahony, and even if there were such a public policy, Mahony did not engage in protected conduct. Mahony counters that a clearly defined public policy protects employees like herself from being fired for refusing to participate in illegal acts, and that genuine issues of material fact exist regarding whether she engaged in protected conduct and the reason for her firing.
Iowa adheres to the common-law employment-at-will doctrine but has recognized the public-policy exception to that doctrine. Jasper v. H. Nizam, Inc., 764 N.W.2d 751, 761 (Iowa 2009). Under Iowa law, the elements of a cause of action for termination in violation of public policy are
Id. (citing Lloyd v. Drake Univ., 686 N.W.2d 225, 228 (Iowa 2004)). The cases wherein the Iowa Supreme Court has found that termination violated public policy generally fall into one of four categories of statutorily protected conduct: "(1) exercising a statutory right or privilege; (2) refusing to commit an unlawful act; (3) performing a statutory obligation; and (4) reporting a statutory violation." Id. at 762 (citations omitted). In Jasper, the Iowa Supreme Court held that administrative regulations can provide a basis for the tort of termination in violation of public policy in some cases. Id. at 763-64.
Mahony argues that she was fired because she refused to commit an unlawful act. Before the Court can determine if a genuine issue of material fact exists as to why Mahony was fired, the Court must determine, as a matter of law, whether a clearly defined public policy exists that protects employees in circumstances like Mahony's and, if so, whether that public policy would be jeopardized by terminating employees in like circumstances. Fitzgerald v. Salsbury Chem., Inc., 613 N.W.2d 275, 282 (Iowa 2000).
1. Clearly Defined Public Policy
Iowa law limits the tort action for termination in violation of public policy "to cases involving only a well recognized and clear public policy." Id. Limiting the cause of action in such a manner "is necessary to overcome the employer's interest in operating its business in the manner it sees fit." Id. Iowa courts rely on statutes, constitutions, and some administrative regulations to determine public policy. Jasper, 764 N.W.2d at 763-64. Not all legislative enactments support the tort, including those that "impose requirements whose fulfillment does not implicate fundamental public policy concerns." Id. at 765. "[L]egislative pronouncements that are limited in scope may not support a public policy beyond the specific scope of the statute." Id. at 766. The Iowa Supreme Court has stated that it "proceed[s] cautiously and will only extend ... recognition to those policies that are well
Mahony asserts that the clearly defined public policy in this case is "that it is illegal for employers to fire employees for refusing to commit unlawful acts or to acquiesce in unlawful schemes." Pl.'s Br. 14. The Court agrees with Mahony as far as the statement goes. The underlying statute Mahony relies on is 18 U.S.C. § 1001, which prohibits fraudulent statements to the federal government.
The Court declines to extend recognition to any other public policies asserted by Mahony as they are not well recognized or clearly defined. Mahony argues that public policy compels compliance with Medicare certification out of concern for critically ill children, young adult quadriplegics, and young adults with neuromuscular diseases. If such were the case, then it would be illegal to open the Sheldon branch sans certification; nevertheless, Mahony acknowledges that there is nothing illegal about UPSI opening the Sheldon branch. Mahony asks this Court to recognize a new basis for a cause of action for termination in violation of public policy because it would advance general social policies; however, "[a]ny effort to evaluate the public policy exception with generalized concepts of fairness and justice will result in an elimination of the at-will
For these reasons, Mahony has failed to make a sufficient showing on an essential element of her termination in violation of public policy claim; therefore, UPSI is entitled to summary judgment.
2. Policy Undermined by Termination of Employee
Even assuming that a public policy was applicable in this case, Mahony cannot show that it would be undermined by her firing. "Once a clear public policy is identified, the employee must further show the dismissal for engaging in the conduct jeopardizes or undermines the public policy." Fitzgerald, 613 N.W.2d at 283-84. The public policy is undermined when "the conduct engaged in not only furthered the public policy, but dismissal would have a chilling effect on the public policy by discouraging the conduct." Id. at 284. "This element guarantees an employer's personnel management decisions will not be challenged unless the public policy is genuinely threatened." Id. Whether a public policy is undermined presents a question of law generally capable of resolution by a motion for summary judgment. Id. at 282.
Mahony's entire argument for this element is intertwined with her argument regarding the existence of a public policy and is premised upon UPSI engaging in illegal activity. Some confusion seems to exist regarding licensing versus certification in this case. Again, Mahony admits that there is nothing illegal about opening a home health care office. In other words, UPSI did not violate any licensing requirements by opening the Sheldon office. Mahony objected to opening the Sheldon office apparently because Form CMS-855A had not been completed, and the Sheldon office had not been separately certified by Medicare. Form CMS-855A is required for enrollment in order to bill Medicare for medical services. Failure to complete Form CMS-855A would only be relevant to an illegal act if a claim was actually submitted for payment. UPSI did not engage in illegal conduct; therefore, Mahony's actions cannot promote the claimed public policy, and her firing would not undermine any public policy. See id. at 285.
UPSI also argues that no public policy would be undermined because the law already provides sufficient incentive for home health care agencies to comply with the regulations, namely, if non-compliant, home health care agencies do not get paid. Mahony does not directly address whether public policy would be undermined by her firing except by citing Tuttle v. Keystone Nursing Care Center, Inc., No. 08-1002, 2009 WL 779538 (Iowa Ct.App. March 26, 2009) (unpublished), and then stating in rebuttal to UPSI
A court "must review [an employee's] conduct ... to determine if it sufficiently matched the public policy." Fitzgerald, 613 N.W.2d at 287. Even if the Court were to recognize a new public policy in favor of protecting home health care agency clients through Medicare certification, Mahony's insistence that UPSI cease operations in Sheldon and become Medicare certified would not further that public policy. UPSI's was already treating patients and was already certified by Medicare. Mahony's conduct would not have changed UPSI's ability to treat patients out of its Carroll, Iowa, office nor improved the health care received by the potential Sheldon clients. Mahony has not made a sufficient showing to satisfy the second element of this tort, and the Court finds as a matter of law that public policy is not undermined by Mahony's termination, especially in light of the financial incentives already inherent in the regulations at issue.
E. Promissory Estoppel
Mahony's final claim is based on promissory estoppel. UPSI argues that Mahony cannot satisfy any of the elements of promissory estoppel nor can she show causation. Mahony's counter argument is that she was fired despite a clear promise in UPSI's employee handbook and that her reasonableness is a question for a finder of fact.
The elements of a claim for promissory estoppel are
Schoff v. Combined Ins. Co. of Am., 604 N.W.2d 43, 49 (Iowa 1999). "The burden of proof is on the plaintiff to prove an estoppel," and "strict proof of all elements is required." Id. at 50. The Court will address the parties' arguments in turn.
1. Clear and Definite Promise
Mahony argues that UPSI's employee handbook expresses a clear and definite promise not to retaliate against an employee who avails herself of the grievance procedure.
In this context, the employee must show that the employer made a clear and definite promise to support a promissory estoppel claim. Id. "A `promise' is `[a] declaration ... to do or forbear a certain specific act.'" Id. at 50-51 (quoting Black's Law Dictionary 1213 (6th ed. 1990)). "A promise is `clear' when it is easily understood and not ambiguous" and "`definite' when the assertion is explicit and without any doubt or tentativeness." Id. at 51 (citing Webster's Third New International Dictionary 419 (unab. ed. 1993)). A representation is made to convey a particular view or impression of something and, even if intended to influence action, is not a promise. See id. (distinguishing a promise from a representation and declaring that a representation is "a statement ... made to convey a particular view or impression of something with the intention of influencing opinion or action").
Taken alone, the statement in the handbook that "[UPSI] will not permit any supervisor, manager, or employee to engage in any form of retaliation against any employee availing him/ herself of the grievance procedures" is an easily understood, unambiguous, and explicit declaration without doubt or tentativeness to forbear from retaliation. The language of this declaration does not lend itself to the interpretation that it is merely a representation rather than a promise. Thus, as Mahony asserts, the Court finds that UPSI made a clear promise not to retaliate against employees who file grievances.
UPSI, however, argues that the anti-retaliation declarations cannot be taken alone, and the handbook should be read as a whole, including statements disclaiming any promises made in the handbook.
However, a promise must not only be clear, it must also be definite. Schoff, 604 N.W.2d at 49. Since the same handbook that made the promise in this case also disclaims any promises, the Court expresses diffidence that the promise not to retaliate is definite. With a disclaimer in a handbook as broad as the one at issue in this case, at the very least, some doubt or tentativeness must be attached to any supposed promises made by the handbook. Ultimately, however, the assertion alone is expressed without any doubt or tentativeness, and thus the Court will consider, without holding, the assertion as a promise in analyzing this motion.
2. Promisor's Understanding that Promisee was Seeking Assurances
UPSI argues that Mahony cannot satisfy the second element of a promissory estoppel claim because she did not talk to anyone at UPSI about the grievance procedure prior to filing her grievance. Mahony counters by citing a Vermont case for the proposition that an employee can seek assurances from the handbook itself.
To establish the second element of promissory estoppel, a plaintiff must show that "the promise was made with the promisor's clear understanding that the promisee was seeking an assurance upon which the promisee could rely and without which he would not act." Schoff, 604 N.W.2d at 49. "This dual emphasis on clarity and inducement parallels the Restatement (Second) definition of an agreement for purposes of promissory estoppel as `[a] promise which the promisor should reasonably expect to induce action ... on the part of the promisee.'" Nat'l Bank of Waterloo v. Moeller, 434 N.W.2d 887, 889 (Iowa 1989).
At Mahony's deposition she admitted that she never sought any assurances by speaking to anyone at UPSI prior to filing
In this case, Mahony was fired after a tenure during which she was praised by UPSI for her contributions to the company. She became concerned that UPSI was not following Medicaid regulations and sought to address her concerns by filing a grievance in accordance with handbook procedures; however, Mahony never spoke with UPSI human resources prior to filing her grievance nor was she referred to the handbook grievance procedure after expressing concern about UPSI's regulatory compliance. Additionally, Iowa promissory estoppel law is different than Vermont law applied in Foote. The law regarding assurances in Foote was passive, only looking at the promisor's ex ante expectations regarding the promise.
Because Mahony admits that she never spoke with UPSI prior to filing her grievance, UPSI could not have had an understanding that Mahony would not have acted but for the promise not to retaliate found in the handbook. Therefore, no genuine issue of material fact exists, and Mahony has failed to establish an essential element of promissory estoppel, rendering
3. Detrimental Reliance
Due to the express disclaimer in the handbook, UPSI argues that Mahony cannot have reasonably relied on any representations therein, and she suffered no detriment since she did not quit her job. Mahony argues that she filed her grievance trusting that she would not be fired for doing so, yet she was still terminated four days later.
Promissory estoppel requires that "the promisee acted to his substantial detriment in reasonable reliance on the promise." Schoff, 604 N.W.2d at 49. To generate a genuine issue of fact, detrimental reliance should be based on "foreseeable, reasonable, substantial, and prejudicial reliance" on the promise. Matter of Graham's Estate, 295 N.W.2d 414, 419 (Iowa 1980). Detrimental reliance is defined as "[r]eliance by one party on the acts or representations of another, causing the worsening of the first party's position." Black's Law Dictionary 1404 (9th ed. 2009).
UPSI relies on this Court's decision in Delaria v. American General Finance, Inc., 998 F.Supp. 1050 (S.D.Iowa 1998), for the proposition that an express disclaimer negates the existence of an implied contract.
Id. at 288. Such an examination is guided by two factors: "First, is the disclaimer clear in its terms: does the disclaimer state that the handbook does not create any rights, or does not alter the at-will employment status? Second, is the coverage of the disclaimer unambiguous: what is the scope of its applicability?" Id. In this case, the disclaimers expressly deny that the handbook forms any promise by UPSI. In analyzing the scope of the disclaimer, Anderson determined that the location of the disclaimer and the language used did not suggest that the disclaimer would not apply to the handbook's discipline policies. Id. The court further found that "[t]he disclaimer is found in the handbook itself" and held that "a reasonable person reading the handbook could not believe that [the employer] has assented to be bound to the provisions contained in the manual." Id. at 288-89. Although Anderson considered whether the handbook as a whole was an offer of employment giving rise to contract rights at odds with at-will employment and did not discuss disclaimers in the context of promissory estoppel, it is instructive to the case at bar. Promissory estoppel is an equitable
Reading Schoff together with the analysis in Anderson, the Iowa Supreme Court would probably not find that a reasonable person would believe that UPSI assented to be bound by the grievance procedures in the manual. Mahony nevertheless asserts that UPSI should be bound by its promise not to retaliate, disclaimers notwithstanding. Mahony argues that her claim is based upon the illegality of retaliation. Mahony reasons that UPSI's handbook states that discharge can be for any reason not prohibited by law and that since UPSI's promise to not retaliate is premised on the notion that retaliation is illegal, her promissory estoppel retaliation claim is not governed by the handbook or its disclaimers. Mahony's argument is severely undermined because the Court is granting summary judgment against her on counts one and two of her complaint, essentially ruling that her termination was not prohibited by law.
Mahony argues that even when a disclaimer is present, the reliance element is a question for the jury. Barske v. Rockwell Int'l Corp., 514 N.W.2d 917, 925 (Iowa 1994). In Barske, the employees alleged that the company represented to potential employees that the period of employment would be five years but laid off all employees after two years. Id. at 919. On appeal, the employees argued that a disclaimer in an employment application that stated employment was for an indefinite term did not bar their tort claims. Id. at 920. The jury had been instructed on the disclaimer defense and was able to consider the effect of the disclaimer on the reliance element. Id. at 925. The court ruled that under such circumstances, the employees' misrepresentation claims had been properly submitted to the jury. Id. While Barske shows that it is not improper to submit a disclaimer defense to the jury, it does not mandate that such a question is reserved exclusively for the fact finder. Additionally, it is significant that the disclaimer in Barske was separate from the alleged promise, while in this case the alleged promise is found in the same document as the disclaimer. Regardless, the Court finds that Anderson provides strong support for the Court to conclude that no reasonable person would have relied on representations found in a handbook that were disclaimed in the very same handbook. Anderson, 540 N.W.2d at 288-89.
For the reasons stated herein, the Court finds that Mahony's FCA and public policy retaliation claims fail as a matter of law, and no genuine issue of material fact exists regarding promissory estoppel. Accordingly, Defendants' Motion for Summary Judgment (Clerk's No. 29) must be
Defs.' App. 15.
Defs.' App. 55-56.
Defs.' App. 66, 70.