Full opinion text
ORDER ON PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT GRITZNER, District Judge. This matter is before the Court on Plaintiffs Motion for Partial Summary Judgment (Clerk’s No. 31) and Defendant’s Motion for Summary Judgment (Clerk’s No; 30, 33). Attorney for Plaintiff is Charles Gribble; attorneys for Defendant are Hélén C. Adams and Bridget R. Penick. The Court heard oral arguments on the motions on March 10, 2005, and now considers the motion fully submitted and ready for final disposition. The present litigation might factually be regarded as a routine ease of alleged discrimination in employment. However, the circumstances of employment by a government body, the creative arguments asserted on behalf of the Plaintiff, and core disputes about the appropriate legal process to be followed, require the Court to enlarge the analytical process in this case. PROCEDURAL HISTORY Plaintiff, James L. Van Arkel (“Van Arkel”), commenced this action against Warren County (“the County”), Warren County Board of Supervisors (“the Board”), Warren County Auditor (“the Auditor”), and Traci VanderLinden (“Vander-Linden”) (collectively, “the Defendants”) in this Court on September 2, 2003. Van Arkel’s Complaint asserts six counts against Defendants. Jurisdiction is proper pursuant to 28 U.S.C. § 1331, the federal question statute, as this case arises in part under 42 U.S.C. § 1983, the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623, and Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-2. The Court has jurisdiction over Plaintiffs state law claims pursuant to the Court’s pendant claim jurisdiction under 28 U.S.C. § 1367(a). The lawsuit arises out of alleged age and gender discrimination based in the termination of Plaintiffs employment with Warren County, Iowa. Plaintiff also alleges a breach of contract and violation of Iowa statutes as a result of his termination. On December 14, 2004, Plaintiff filed a motion for partial summary judgment pursuant to Federal Rule of Civil Procedure 56; meanwhile, on December 15, 2004, Defendants filed a motion for summary judgment, also pursuant to Rule 56. Defendants seek summary judgment on all claims asserted by Van Arkel in his Complaint, while Plaintiff just seeks summary judgment on the final two counts of his Complaint, i.e., the breach of contract claim and the claim made under Iowa Code Chapter 331. Both parties have had more than sufficient time to respond to the pending motions. BACKGROUND FACTS Van Arkel was hired by Warren County in September 1991. He was originally hired by then-Warren County Auditor Beverly Dickerson (“Dickerson”) to serve as Budget Director in the Auditor’s office. Van Arkel signed an agreement provided by Dickerson, which contained the following language relevant to this action: 1. The Employee shall be appointed by the Auditor and approved by the Warren County Board of Supervisors pursuant to Chapter 331, Code of Iowa, 1991. Except as other wise [sic] provided by State law, removal from this position shall be subject to the specific provisions of the Warren County Personnel Policy. ‡ ‡ THIS AGREEMENT, may be’terminated by serving written notice upon the other party by May 1, of the year in which this Agreement expires. Such termination shall be effective July 1, of that year. Unless terminated by the time and manner setforth [sic] above or in item #2, this Agreement shall be deemed in effect from July 1, of the year notice could have been served, through June 30, of the following year. Thereafter, the Board approved Van Arkel by resolution as County Budget Director as recommended by Dickerson. That Resolution, numbered 91-214, was adopted September 3, 1991, and provided as follows: Be it resolved that, upon the recommendation of Beverly Dickerson, Warren County Auditor, James Van Arkel will be hired as a CPA effective September 1, 1991 at a bi-weekly salary of $1368. Van Arkel then began working as a member of Dickerson’s staff, which in 1991 consisted of seven women and Van Arkel. In December 1996, the Board passed Resolution 96-495, consolidating the position of County Budget Director with the Assistant to the Board of Supervisors. Van Arkel was appointed to the consolidated position and thereafter assumed the duties of the Assistant to the Board of Supervisors in addition to his regular duties as Budget Director. Following the six-month trial period, Van Arkel remained in the consolidated position throughout the course of his employment with the County. According to Van Arkel’s own estimation, approximately 80 percent of his time was devoted to the assistant’s position and 20 percent to the budget director position, though he remained an employee of the Auditor’s office, as his salary came out of the budget for that office. Traci Vander-Linden became County Auditor in 1998. The parties’ accounts of Van Arkel’s remaining tenure with the County differ. Van Arkel points out that he was presented with the Employee of the Year Award in February 1998, and that during the final years of his employment he received ratings exceeding “Competent Performance”, and in fact was rated “Very Good” or “Outstanding” in most categories by Defendants during his yearly performance evaluations. In 2001, Van Arkel received the highest ratings of all County employees evaluated by the Board. In addition, neither VanderLinden nor the Board ever issued Van Arkel a written reprimand nor was he ever suspended during the course of his employment. Despite this seemingly strong record, Van Arkel’s employment was marred by issues that eventually led to his termination. VanderLinden states she was repeatedly approached by various County department heads regarding Van Arkel. The department heads presented Vander-Linden with complaints that Van Arkel was usurping the Board’s power and unilaterally making changes to their departments’ budgets without the knowledge of either VanderLinden or the Board. Additionally, VanderLinden was becoming increasingly frustrated with not knowing where Van Arkel was during any given day. Also, during meetings of the Board, certain Board members instructed Van Arkel to improve his communication with department heads and inform his supervisors of his daily whereabouts. Despite this guidance, VanderLinden was still approached by multiple department heads with complaints about Van Arkel. These complaints resulted in at least two meetings of department heads to discuss those issues. In March 2002, after receiving additional complaints, VanderLinden concluded that termination of Van Arkel’s employment was appropriate. On April 15, 2002, Van-derLinden informed Van Arkel of this decision. VanderLinden hand-delivered a letter to Van Arkel stating he was being terminated for “irreconcilable differences in management philosophies.” The letter further provided the County would pay Van Arkel a two-week severance package along with any unused vacation, resulting in payment of his salary and benefits through the April 26, 2002, pay period. On April 23, 2002, the Board passed Resolution 02-215 “acknowledging” the termination of Van Arkel as County Budget Director. While Van Arkel was initially paid two weeks severance and all unused vacation, the County later paid Van Arkel an additional $14,379, which constituted payment of his salary through June 30, 2002. The County claims this was done out of an abundance of caution after VanderLinden became aware of the agreement Van Arkel had entered into with Dickerson, as the agreement had an automatic renewal provision providing that any termination would be effective July 1 of the year notice was given provided notice was given before May 1. According to the County, Van Arkel has not been replaced as Assistant to the Board, as a majority of the Board concluded the position was no longer necessary. With respect to the budget director position, VanderLinden performed the budget duties herself for six months. She then advertised for and filled a new position, Warren County Budget Assistant, to perform many of the duties previously done by Van Arkel as Budget Director. After interviewing four candidates, two women and two men, VanderLinden hired Jennifer Sease (“Sease”), then age 26, because VanderLinden determined she had the most relevant experience of all the finalists concerning budgets in the public sector. On December 9, 2002, Van Arkel filed a charge of discrimination alleging age and gender discrimination with the Equal Employment Opportunity Commission (“EEOC”), and Van Arkel was issued a Notice of Right to .Sue on June 10, 2003. This litigation ensued, wherein Plaintiff has asserted six causes of action against Defendants stemming from his termination from County employment. ANALYSIS Both Plaintiff and Defendants have filed motions for summary judgment pursuant to Rule 56. Van Arkel seeks summary judgment only on two counts of his Complaint, and only on the issue of liability on those two counts. Meanwhile, Defendants seek summary judgment on all claims asserted by Van Arkel against them. The parties’ contentions will be discussed seria-tim. A. Standard for Summary Judgment “[Cjlaims lacking merit may be dealt with through summary judgment under Rule 56.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment should be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). To avoid summary judgment, the non-moving party must make a sufficient showing on every essential element of its case for which it has the burden of proof at trial. See Celotex v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Wilson v. Southwestern Bell Tel. Co., 55 F.3d 399, 405 (8th Cir.1995). Relevant to the present action, “ ‘[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.’ ” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (quoting Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). The nonmoving party must go beyond the pleadings, and by affidavits, depositions, answers to interrogatories, and admissions on file, designate “specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. 2548; see also Landon v. Northwest Airlines, Inc., 72 F.3d 620, 624 (8th Cir.1995) (finding that in employment discrimination cases, “the plaintiffs evidence must go beyond the establishment of a prima facie case to support a reasonable inference regarding the alleged illicit reason for the defendant’s action.”). The Court must view all of the facts in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences that can be drawn from the facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citations omitted); Rifkin v. McDonnell Douglas Corp., 78 F.3d 1277, 1280 (8th Cir.1996); Marts v. Xerox, Inc., 77 F.3d 1109, 1112 (8th Cir.1996). While the quantum of proof that must be produced to avoid summary judgment is not precisely measurable, it must be enough evidence for a reasonable jury to return a verdict in favor of the nonmov-ant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The Court recognizes that caution is necessary in approaching summary judgment in employment discrimination cases. See Keathley v. Ameritech Corp., 187 F.3d 915, 919 (8th Cir.1999); Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir.1994); see also Bell v. Conopco, Inc., 186 F.3d 1099, 1101 (8th Cir.1999) (“Because employment discrimination cases frequently turn on inferences rather than direct evidence, the court must be particularly deferential to the party opposing summary judgment.”). Notwithstanding this consideration, summary judgment “is appropriate where one party has failed to present evidence sufficient to create a jury question as to an essential element of its claim.” Whitley v. Peer Review Sys., Inc., 221 F.3d 1053, 1055 (8th Cir.2000); see also Duffy v. Wolle, 123 F.3d 1026, 1033 (8th Cir.1997) (“While ‘summary judgment should seldom be granted in employment discrimination cases, summary judgment is proper when a plaintiff fails to establish a factual dispute on an essential element of her case.’ ”) (quoting Helfter v. United Parcel Serv., Inc., 115 F.3d 613, 615-16 (8th Cir.1997)). B. Plaintiffs Motion for Partial Summary Judgment Plaintiff moves for partial summary judgment on counts five and six of his Complaint, i.e., on the claims for breach of contract and for violation of the provisions of Iowa Code Chapter 331. He contends that Defendants cannot demonstrate any genuine issues of material fact on these claims. Accordingly, Van Arkel moves for summary judgment on the issue of liability for these claims but reserves the issue of damages for trial. Defendants resist Plaintiffs motion and, as will be discussed infra, actually move for judgment as a matter of law in their favor on these two claims. As a preliminary matter, Van Arkel claims that Defendants have heretofore failed to remove him from his position as County Budget Director for the following reasons: (1) Defendants failed to terminate Van Arkel pursuant to the terms of the written employment agreement; (2) Defendants failed to comply with the requirements of Iowa Code Chapter 331; and (3) Defendants failed to terminate Van Arkel “for cause” as required by the Warren County Personnel Policies. Van Arkel asserts both Chapter 331 and the personnel policy are incorporated by reference into thé employment agreement. Van Ar-kle further maintains that Defendants did not even attempt to remove him from his position as Assistant to the Board of Supervisors. 1. Breach of Contract Claim Under Iowa law, to prove a breach of contract claim, Plaintiff must prove the following:' (1) an employment contract existed between the parties; (2) the terms and conditions of the contract; (3) Plaintiff fulfilled the terms and conditions of the contract; (4) Defendants breached the contract in some manner; and (5) Plaintiff suffered damages as a result of the breach. Kish v. Ioiva Cent. Cmty. Coll., 142 F.Supp.2d 1084, 1093 (N.D.Iowa 2001). To demonstrate that an employment contract existed between the parties, Plaintiff must show that the parties were capable of contracting, there was an offer and acceptance, and there was consideration. See Magnusson Agency v. Public Entity Nat’l Co., 560 N.W.2d 20, 25 (Iowa 1997) (listing these items as -the first three elements of a breach of contract claim) (citing Iowa Civ. Jury Instr. 2400.1). In other words, “[a] party breaches a contract when, without legal excuse, it fails to perform any promise which forms a whole or a part of the contract.” Molo Oil Co. v. River City Ford Truck Sales, Inc., 578 N.W.2d 222, 224 (Iowa 1998) (citing Mag-nusson Agency, 560 N.W.2d at 27). As to the existence of a contract, “[t]he only required elements of a binding contract are mutual assent to the contractual terms manifested by an offer and acceptance.” In re Guardianship & Conservatorship of Price, 571 N.W.2d 214, 216 (Iowa Ct.App.1997) (citing Kristerin Dev. Co. v. Granson Inv., 394 N.W.2d 325, 331 (Iowa 1986)). An offer is determined by whether it induces a reasonable belief in the recipient that the sender will be bound if the recipient accepts. Heartland Express, Inc. v. Terry, 631 N.W.2d 260, 268 (Iowa 2001) (citing Anderson v. Douglas & Lomason Co., 540 N.W.2d 277, 286 (Iowa 1995)). An acceptance is “ ‘a manifestation of assent to terms thereof made by the offeree in a manner invited or required by the offer.’ ” Id. at 270 (quoting Restatement (Second) of Contracts § 50). Van Arkel asserts that he had a reasonable belief that by signing the employment agreement, both he and the County Auditor would be bound by the contract, and he accepted the offer of employment by signing the agreement and beginning his employment with the Auditor’s office. There must also be consideration for a contract to exist, which requires a benefit to the promisor or a detriment to the promisee. Magnusson Agency, 560 N.W.2d at 26-27. Van Arkel contends the “bargained for exchange” in the instant case was Van Arkel’s agreement to perform the duties of County Budget Director in exchange for the compensation provided by the County. Finally, the parties to a contract must have the capacity to contract. Id. at 25. A person is capable of contracting unless he or she lacked sufficient mental capacity. Iowa Civ. Jury Instr. 2400.0 (2004). Van Arkel asserts that both he and Dickerson had the requisite mental capacity to sign the employment agreement on September 1, 1991, and therefore this first element is met. The second element of Plaintiffs breach of contract claim requires proof of the terms and conditions of the contract. Molo Oil Co., 578 N.W.2d at 224. Construction of a contract is always a matter of law for the Court. Owen Constr. Co. v. Iowa State Dep’t of Transp., 274 N.W.2d 304, 306 (Iowa 1979). Van Arkel contends the relevant terms and conditions of the contract are that he be appointed and approved subject to Chapter 331 of the Iowa Code and that he only be removed from his position subject to the provisions of Chapter 331 and the County personnel policy. On the third element, Van Arkel asserts he has no outstanding performance obligations. He contends that he performed as required in his position as County Budget Director. As to the next element, Van Arkel must prove Defendants breached the contract. See Molo Oil Co., 578 N.W.2d at 224. In other words, Van Arkel must present undisputed evidence that Defendants failed to comply with the terms of the 1991 employment agreement. He contends that Defendants breached the contract in the manner in which they attempted to terminate his employment with the County. He asserts that the County did not comply with Chapter 331, the provisions of the personnel policy, or the terms of the contract in terminating his employment April 15, 2002.. In resistance to Plaintiffs assertions on the breach of contract claim, Defendants initially contend the claim cannot stand because none of the named Defendants were parties to the agreement at issue. The only agreement ever signed by Van Arkel was with Dickerson, who retired as County Auditor in 1998. Defendants assert that neither the County, the Board, nor VanderLinden ever ratified the agreement. Further, while Van Arkel correctly notes Dickerson had sufficient mental capacity to enter into a contract, Defendants assert he provides no authority for the proposition that Dickerson could bind Warren County or future County Auditors for the duration of Van Arkel’s employment with the County. Counties are “creatures of the legislature [and they have] such powers to contract and only such powers as the legislature grants them.” Madrid Lumber Co. v. Boone County, 255 Iowa 380, 121 N.W.2d 523, 525 (Iowa 1963). To this end, the Iowa Code provides that the “power of a county is vested in the board, and a duty of a county shall be performed by or under the direction of the board except as otherwise provided by law.” Iowa Code § 331.301(2). Moreover, a board shall exercise its power “only by the passage of a motion, a resolution, an amendment, or an ordinance.” Iowa Code § 331.302(1) (emphasis added). Defendants contend there is no statutory support for Plaintiffs assumption that Dickerson could bind the County or Van-derLinden by entering into the agreement at issue. Defendants further argue Plaintiff has not established Dickerson was acting under the direction of the Board when she signed the agreement. Finally, while the Board did approve Van Arkel’s employment by resolution, Defendants argue it never ratified the terms of the agreement as the written agreement appears nowhere in the resolution. In fact, neither a single member of the Board absent full Board ratification, Greusel v. O’Brien County, 223 Iowa 747, 273 N.W. 853, 854 (Iowa 1937) (affirming directed verdict in favor of county on breach of contract claim and noting “[a] single member of a board of supervisors has no power to bind the board or the county, unless specifically authorized to act for the whole board or unless the agreement made by him for the county is approved or ratified by the board”), nor a county auditor may bind the county. Fouke v. Jackson County, 84 Iowa 616, 51 N.W. 71, 72-73 (Iowa 1892) (holding that county auditor did not have the authority to bind the county because “it is the board alone, acting officially, that can bind the county by an express contract”). Indeed, such power to bind the county is found only in the Board. Iowa Code § 331.302(1); see also City of Akron v. Akron-Westfield Cmty. Sch. Dist., 659 N.W.2d 223 (Iowa 2003) (affirming summary judgment in favor of city and finding any contract entered without formal motion, resolution, amendment, or ordinance is void). Accordingly, Defendants assert the only parties arguably bound by the agreement are Van Arkel and Dickerson. In any event, Defendants contend that the contract is void absent a ratifying resolution. While this appears harsh, Defendants point out that “[tjhose who contract with a municipality are charged with notice of the limits on the municipality’s authority.” City of Akron, 659 N.W.2d at 225. Defendants maintain Van Arkel’s breach of contract claim must be dismissed on this basis. In Defendants’ motion, they added the argument that the Board’s 1996 resolution consolidating the Assistant to the Board position with the Budget Director position provided notice of the termination of the agreement regarding the Budget Officer position by terminating the previous position and appointing Van Arkel to the new, consolidated position. Van Arkel never objected to this appointment and worked in the consolidated position until his termination. In short, Defendants assert the resolution of consolidation effectively terminated and superceded the agreement. Defendants further contend Plaintiffs breach of contract claim must be dismissed because Van Arkel is unable to demonstrate Defendants breached the agreement, assuming arguendo that such a contract is valid and binding on Defendants. Defendants contend they did not breach the agreement, under any of the scenarios asserted by Van Arkel. Van Arkel counters that the Auditor does have the power to contract, with approval from the Board, based on Iowa Code §§ 331.505 and 331.903. He asserts the agreement notes the necessity of Board approval, and that the agreement further makes plain the County’s conformance with Chapter 331 by explicitly referencing this section as part of its terms. Plaintiff has, however, expressly denied being an assistant, deputy, or clerk, i.e., those positions referenced in sections 331.505 and 331.903. As a result, the Court finds serious problems with Plaintiffs reliance on these sections to support his assertion that Auditor Dickerson could bind the County and her successor. Van Arkel next suggests the Court compare the language used in the agreement with that of the resolution affirming his employment. Van Arkel contends that because the Board in its resolution uses the same language as the agreement, e.g., that he is hired as budget director for the amount listed in the agreement, and because the resolution states it is acting on Dickerson’s recommendations, the Board in effect is ratifying the employment agreement between Van Arkel and Dickerson. Following oral argument on the matter, Plaintiff did move for consideration of additional evidence in the form of an affidavit provided Don Van Rwyswk, a member of the Warren County Board of Supervisors at the time Van Arkel was hired. Plaintiff requests the Court consider the material as indicating the Board’s knowledge and intent at the time of the resolution approving Van Arkel’s hiring by the County, though Plaintiff maintains the language of the resolution is sufficient to show the Board’s ratification of such. In his affidavit, Van Rwyswk states that on September 3, 1991, the Board was presented with an employment contract signed by Van Arkel and then-Auditor Dickerson. According to Van Rwyswk, the Board reviewed and approved the contract, and then he moved to adopt the resolution to hire Van Arkel. Van Rwyswk then noted it was unanimously passed to hire Van Arkel at the bi-weekly salary stated in the employment contract. In response, Defendants first argue the Court should not allow the additional evidence at this late date. Plaintiff should have been aware he would be required to show Board ratification for the employment contract to be binding, and was on notice of this issue at least since Defendants’ resistance to Plaintiffs motion, as Defendants’ brief expressly raised the issue. Defendants contend Van Arkel has offered no legitimate explanation for his failure to submit the evidence earlier, nor has he provided authority that allows him to enter it at this time. To the contrary, Defendants contend that it would be patently unfair to allow submission of this evidence, as the affiant has not been previously identified by Plaintiff as a person with knowledge of facts relevant to this case, discovery has closed, the summary judgment motions have been argued and are fully submitted, and the trial date is just a few weeks away. See Dean v. Muscatine County, 250 F.Supp.2d 1094, 1101 (S.D.Iowa 2003) (striking plaintiffs additional evidence in a similar circumstance, noting “[cjounsel’s untimely submission is highly prejudicial to defendants, who were then forced to submit a hurried response to plaintiffs supplement”). In the alternative, Defendants assert the material is not material to any issue before the Court. A review of the offered affidavit merely shows that then-County Supervisor Van Rwyswk made a motion to adopt the resolution to hire Van Arkel, which was approved, but the affidavit contains no further support or evidence that the Board actually approved or ratified the contract as required by law. The resolution itself makes no mention of the agreement, and Defendants reassert that the mere fact the salary set forth in the resolution matches that in the agreement is not proof the agreement was being ratified. Defendants assert further that if the Court does consider the affidavit, it should also consider the minutes of the Board from the September 3, 1991, meeting in their entirety. On multiple occasions during this meeting, the minutes demonstrate the Board’s practice when presented with an agreement for approval of adopting a resolution authorizing the chair to sign said contract. This procedure did not take place with regard to the Van Arkel/Dicker-son agreement. To the contrary, the minutes and actual resolution merely indicate the Board was approving Van Arkel’s hiring without any mention whatsoever of an employment agreement. Accordingly, Defendants assert the evidence remains that no Board ratification of the agreement took place even if the Board was presented with and reviewed that agreement. The Court finds the employment agreement as applied to the County is invalid and nonbinding as a matter of law if not approved and ratified by the Board. While the Court agrees that Plaintiffs post-hearing submissions should not be considered, the Court ultimately concludes that no such ratification took place even considering the late-filed affidavit. The Board resolution affirming Van Arkel’s employment makes no mention whatsoever of the written agreement, a conclusion not altered even considering the belatedly submitted evidence. The fact that the resolution uses the same or similar language is of no consequence, and is actually reasonable considering the Board was acting upon the recommendations of Dickerson, the drafter of the employment agreement. The “same language” argument cannot overcome the lack of express language, and the Court will not draw conclusions of intent based on such dubious inferences, nor can one individual’s recollection of events overcome the fact that such approval and ratification is not evidenced by either the Board’s resolution or the minutes of the September 3, 1991, meeting. The proper operation of a public entity, and the legal ramifications of specific acts, must be evidenced by more than the general recollection of a former elected official. The Court thus finds the lack of express language referencing and ratifying the document is dispositive. Van Arkel’s employment was approved by the Board without reference to the employment agreement, which agreement was fundamentally contradictory to the provisions of the handbook and longstanding County practice. A departure from firmly established practice must be expressly evidenced by the public record. At bottom, Van Arkel had no valid and binding contract with the County. This conclusion is further supported by the evidence in the record indicating that neither the current members of the Board nor the current County Auditor had any knowledge of the agreement until well after Van Arkel’s termination as there was no record of any such agreement in a resolution or Board minutes. Alternatively, even accepting that Van Arkel had a valid and binding agreement with Defendants, the Court would still be required to determine whether said agreement was breached by Defendants. As delineated above, Plaintiff asserts the agreement was breached on three bases: (1) under the terms of the agreements; (2) under Chapter 331 of the Iowa Code; and (3) under the County personnel policy. Before dealing with the second two contentions, however, the Court finds the County complied with the terms of the agreement even though it was not required to do so. Defendants provided notice of Van Arkel’s termination on April 15, 2001, and, while Plaintiff was immediately dismissed, Defendants subsequently paid Van Arkel the amount he would have received had he been employed through June 30, 2001. In its automatic renewal provision, the agreement provides for notice by May 1 of the year' in which the termination would occur, to be effective July 1 of that year. Defendants unknowingly, and fortuitously, provided the requisite notice and later paid Van Arkel all he would have received had the agreement not been renewed effective July 1, thereby fulfilling the express terms of the contract. Thus, Plaintiffs only remaining claims must be under either Chapter 331 or the County personnel policy. 2. Iowa Code Chapter 331 Claim. Van Arkel first asserts the employment agreement incorporates by reference Iowa Code Chapter 331. “Under the doctrine of incorporation, one document becomes part of another separate document simply by reference as. if the former is fully set out in the latter.” Hofmeyer v. Iowa Dist. Ct. for Fayette County, 640 N.W.2d 225, 228 (Iowa 2001) (citing Richard A. Lord, Williston on Contracts § 628 (3d ed.1961)). Incorporation by reference is a question of law to be determined by the Court. Id. (determining reference to Iowa Administrative Rules were incorporated by reference). Under Iowa law, to be incorporated by reference, the reference must be. “clear and specific.” In re Estate of Kokjohn, 531 N.W.2d 99, 101 (Iowa 1995). Van Arkel contends that the employment agreement at issue in this case clearly and specifically references Chapter 331. The agreement states in relevant part, “The Employee shall be appointed by the Auditor and approved by the Warren County Board of Supervisors pursuant to Chapter 331, Code of Iowa, 1991.” Van Arkel maintains that this reference is sufficient for the Court to find Chapter 331 has been incorporated by reference. See Hofmeyer, 640 N.W.2d at 229 (finding clear reference to Iowa Administrative Rules, without citation to a specific rule, was sufficient for the Administrative Rules to be incorporated by reference). Defendants resist Van Arkel’s first assertion regarding the applicability of the removal procedures of Chapter 331 under the terms of the agreement, contending the agreement does not require removal pursuant to Chapter 331. Rather, the agreement merely states the “[e]mployee shall be appointed by the Auditor and approved. by the Warren County Board of Supervisors pursuant to Chapter 331,” with the following sentence providing removal shall be pursuant to the Warren County Personnel Policy, except as otherwise required by state law. Thus, Defendants argue that Van Arkel’s contention that a “term and condition” of the agreement is that he be removed from his position subject to the provisions of the Warren County Personnel Policy and Chapter 331 is clearly erroneous under the clear and express language in the agreement. The Court finds Plaintiffs assertion that Chapter 331 is incorporated by reference by the employment agreement fails at the outset. The Court has already determined the contract was never ratified by the Board and therefore not binding on the County. Nevertheless, the Court finds that, even if the employment agreement constituted a binding contract, the agreement does not incorporate the Chapter’s removal provision as the agreement only “clearly and specifically” references appointment and approval pursuant to Chapter 331. If any portion of Chapter 331 had been incorporated by reference, it would be limited to those sections dealing with appointment and approval. Van Arkel next asserts that even if not incorporated by reference, Chapter 331 is applicable under its own terms. Van Arkel contends he was at least appointed to the consolidated position pursuant to Chapter 331 and must therefore be removed under the procedures delineated in the Chapter. Van Arkel avers the relevant appointment and removal portions of Chapter 331 provide the following: 1. The board shall appoint: * * * * * * z. Other officers and agencies as required by law. ;¡í Hí ‡ 3. Except as otherwise provided by state law, a person appointed as provided in subsection 1 may be removed by the board by written order. The order shall give the reasons and be filed in the office of the auditor, and a copy shall be sent by certified mail to the person removed, who upon request filed with the auditor within thirty days of the date of mailing the copy, shall be granted a public hearing before the board on all issues connected with the removal. The hearing shall be held within thirty days of the date the request is filed unless the person removed requests a later date. Iowa Code § 331.321. As noted, Van Arkel argues he was appointed to the consolidated position of Assistant to the Board of Supervisors and County Budget Director pursuant to this statute in the Board’s 1996 Resolution and that upon termination, Defendants failed to remove him from this position pursuant to the statutory requirements. Specifically, Van Arkel alleges Defendants failed to send a copy of his termination by certified mail; rather, Auditor VanderLinden hand-delivered the letter to Van Arkel on April 15, 2002. After meeting together shortly, Van Arkel was escorted to his office where he removed personal belongings and left. Later, the Board passed resolution 02-215 acknowledging his removal from the Budget Director position, but again, this was never served upon him by certified mail. Van Arkel next alleges the letter of termination-failed to give adequate reasons for the termination. The only explanation provided in the letter from VanderLinden was that Van Arkel’s employment was being terminated due to “irreconcilable differences in management philosophies.” No further reasons were given by the Board when they acknowledged his removal, and Van Arkel testifies he has never been provided a list of reasons for his removal from office. Van Arkel asserts the stated reason for his termination is vague and nebulous and is nothing more than a glaring generality which amounts to an unsupported allegation or conclusion. He argues that section 331.321 is meaningful only if the employer is required to set forth reasons understood by the employee, thereby enabling the employee opportunity to refute the allegations by witness testimony or documentation. • Van Arkel maintains the reasons for the termination that were articulated after the litigation may have been meaningful, but the post hoc statements were too late to comply with Chapter 331. Likewise, Van Arkel asserts he was given no prior notice from the Auditor or the Board that his performance was deficient in any way. Admittedly, VanderLinden never spoke with Van Arkel about any perceived deficiencies. Van Arkel asserts that the record indicates the only feedback he received was positive and that he was doing a great job according to his final performance evaluation. Finally, Van Arkel contends he was never granted a public hearing on the issue of his removal. Van Arkel did attend the meetings during which his removal was discussed but contends he was not allowed to speak or raise the issue. For these reasons, Van Arkel asserts Defendants failed to comply with Chapter 331 in terminating his employment, and therefore he was never removed from his position as County Budget Director. Van Arkel further contends that when Defendants removed him from his position as County Budget Director, they failed to also remove him from the Assistant to the Board position. Van Arkel maintains that, consequently, he was never removed from this position, which was the one in which he spent a majority of his time. In any event, Van Arkel contends Defendants failed to comply with Chapter 331 in removing him from this position. Despite being appointed to this position via a Board resolution, Defendants did not give Van Arkel notice, a list of reasons, or a hearing as required by the statute, and no resolution was passed to revoke Van Ark-el’s appointment as Assistant to the Board. Defendants argue that Chapter 331 is not applicable separate from the claimed contractual incorporation. On this point, Defendants first assert that Iowa Code section 331.321 pertains only to appointments made by the Board of Supervisors, not the Auditor, see Iowa Code § 331.321, and therefore it is inapplicable to Van Ark-el’s employment as County Budget Director as he was appointed to that position by Dickerson acting as County Auditor. Defendants also contend they complied with those sections of Chapter 331 that could possibly apply to Van Arkel’s termination as County Budget Director. As a result, since Plaintiff cannot demonstrate the applicability of any other requirements in Chapter 331, Defendants assert his claim based on this section must fail. Defendants assert that the Board was not required to follow the provisions of section 331.321(3) in removing an appointed employee such as Van Arkel. Defendants argue that neither of Van Arkel’s positions is enumerated in subsection 1 of section 331.321, which requires boards of supervisors to appoint persons to 25 specified county positions or commissions. Defendants maintain that Van Arkel’s attempts to bootstrap his positions into the protection of section 331 by claiming they fall under section 331.321(1)(z), which calls for board appointment of “other officers and agencies as required by state law,” must fail. Defendants assert neither of Van Arkel’s positions are akin to the 25 enumerated positions. Furthermore, Defendants assert neither of his positions was a county officer or agency, and Van Arkel has identified no state law requiring a board of supervisors to appoint a budget director or assistant to the board. Finally, Defendants contend that even if Van Arkel’s positions fall within the purview of subsection (l)(z), the removal provisions of subsection (3) are permissive, not mandatory, as evidenced by the use of the word “may” in subsection (3) in contrast to use of the word “shall” in subsection (1). See Ace Prop. & Cas. Ins. Co. v. FCIC, 357 F. Supp.2d 1140, 1150-51 (S.D.Iowa 2005) (noting the term “may” is permissive in nature, while “shall” is mandatory) (citing Lopez v. Davis, 531 U.S. 230, 231, 121 S.Ct. 714, 148 L.Ed.2d 635 (2001), Anderson v. Yungkau, 329 U.S. 482, 485, 67 S.Ct. 428, 91 L.Ed. 436 (1947), and Primary Care Investors, Seven, Inc. v. PHP Healthcare Corp., 986 F.2d 1208, 1213 (8th Cir.1993)). Moreover, Defendants assert that like the revocation provision of section 331.903(2), the use of the word “may” makes the provision directory, not mandatory, and thus Defendants cannot be liable for failure to comply with the removal provision absent a showing of prejudice by Plaintiff. Braunschweig v. Holmes, No. LACV024664 at n. 1 (Iowa Dist. Ct. for Kossuth County Oct. 24, 2004) (rejecting argument that defendants were liable for failing to revoke appointment pursuant to Iowa Code § 331.903(2), noting the revocation provision was directory and such failure did not prejudice plaintiff). Accordingly, Defendants assert the Board was permitted, but not required, to remove him from the Assistant to the Board position, and its failure to do so does not violate section 331.321. The Court first finds it is not for this Court to parse a consolidated position. This is a function and power of the Board which it has chosen not to employ in the present circumstances. If Van Arkel was removed from the Budget Director position, he was also removed as Assistant to the Board, a move apparently recognized by the Board and the County. In any event, the Court finds Chapter 331 inapplicable because Van Arkel was not employed in the consolidated position under this section. Thus, the Court holds Chapter 331 by its own terms does not apply to Van Arkel. His consolidated position is not one enumerated in the relevant section, nor should it be considered a position covered under subsection (l)(z). He was not a County officer appointed by the Board as that term is defined. Accordingly, Plaintiffs claim under Chapter 331 fails, and the Court must deny Plaintiffs motion for partial summary judgment on this claim. 3. County Personnel Policies Van Arkel also asserts the Warren County Personnel Policies are incorporated by reference because that document was clearly and specifically referenced in the employment agreement. See In re Estate of Kokjohn, 531 N.W.2d at 101. This argument fails at the outset based on the Court’s earlier finding that the argument was not ratified by the Board and is therefore not binding. Van Arkel next asserts that the County policies constitute an exception to the doctrine of at-will employment. See Hunter v. Bd. of Trs. of Broadlawns Med. Ctr., 481 N.W.2d 510, 513 (Iowa 1992) (providing an exception to at-will employment occurs when “an employer’s handbook or policy manual guarantees an employee that discharge will occur only for cause or certain conditions”) (citations omitted). Van Arkel argues that Defendants’ at-will employment argument fails because that relationship was modified by either the written agreement or the County’s policy manual. Indeed, modification of an at-will employment relationship to one based in contract may be accomplished by contract or through an employer’s handbook or policy manual. See Balmer v. Hawkeye Steel, 604 N.W.2d 639, 641 (Iowa 2000) (citing Huegerich v. IBP, Inc., 547 N.W.2d 216, 219 (Iowa 1996)). Van Arkel references the 1991 Personnel Policy because that was the manual in effect at the time of the employment agreement. He further states this version should apply as Van Arkel was unaware of any prospective changes when he accepted employment with the County. The personnel policy lists three classes of work rules, or conditions for discharge, which require varying degrees of discipline depending upon the seriousness of the violation. Violation of a Class I rule will usually not result in discharge; violation of a Class II rule may result in “more serious disciplinary measures, up to, and including, discharge”; and violation of a Class III rule may result in immediate discharge. The personnel policy also provides for progressive discipline. Van Arkel asserts Defendants violated this policy by not following progressive discipline. Van Arkel was never issued a written reprimand or suspension during his 11 years of employment with the County. In addition, Van Arkel asserts there have been no allegations against him of “serious misconduct”, the only violation level providing for immediate suspension or discharge. The 1991 Personnel Policies, in a section entitled “Employees at Will”, provides “[ejmployment with Warren County is for an indefinite time and is terminable at any time, with cause shown by the Employer, or at a completion of a special grant or project.” Van Arkel seizes upon the statement that employment is terminable for cause shown and contends that this requires his employment could only be terminated for cause. Under Iowa law, “for cause” and “just cause” have the same meaning. Lockhart v. Cedar Rapids Cmty. Sch. Dist., 577 N.W.2d 845, 846-47 (Iowa 1998) (discussing the meaning of cause within the context of statutes governing termination of public employees). The term “just cause” encompasses “reasons that relate to an employee’s performance of his or her job and the impact of that performance on an employer’s ability to attain its reasonable goals.” Id. at 847 n. 1. “Just cause” has been defined “to comprehend a focus in the ability and fitness of an employee to discharge the duties of his or her position, bearing in mind the legislative purpose to protect the public against incompetence and maintain high standards of performance,” Hawkinson v. Louisa County Civil Serv. Comm’n, 431 N.W.2d 350, 353 (Iowa 1988), but “does not include ‘reasons which are arbitrary, unfair, or generated out of some petty vendetta.’ ” Lockhart, 577 N.W.2d at 847 n. 1 (quoting Briggs v. Bd. of Dirs. of Hinton Cmty. Sch. Dist., 282 N.W.2d 740, 743 (Iowa 1979)). Van Arkel asserts Defendants’ stated reasons for his termination do not constitute “just cause” as required by the 1991 Personnel Policies. According to the letter he received, Van Arkel was fired for “irreconcilable differences in management philosophies,” which is not listed as a violation of the work rules in the Personnel Policies. Van Arkel asserts that Defendants failed to terminate him for cause as required by the Personnel Policies under the terms of his employment agreement. Defendants counter that Van Arkel misreads the policies and improperly relies on a constricted view of the relevant provisions. Defendants point out that the 1991 version of the policies clearly indicates it was updated, and Van Arkel provides no support for his claim that the 1991 version is controlling. The agreement does not indicate which version is to be incorporated, and both the 1991 policy and 2001 policy state they are subject to “modifications and further development.” Defendants argue it is only logical that the parties intended Plaintiffs removal from his position to be subject to the Personnel Policies in effect at the time a termination decision is made. On this basis, Defendants contend the 2001 Personnel Policies in effect at the time of Van Arkel’s termination are controlling. The 2001 Personnel Policies as revised state multiple times that employment with the County is at will, and that the mere fact the Personnel Policies contain disciplinary procedures and work rules does not alter the at-will nature of the employment. In any case, the Policies note under “Disciplinary Action” that “[tjhese rules are not necessarily the only areas in which disciplinary action may be taken if conduct or instances arise.” Likewise, under the “Disciplinary Procedures” section, the Policies provide that “[t]he County shall have the right to suspend or discharge immediately if it finds such action warranted by the circumstances.” Additionally, under the “Resignation or Termination” section, the Policies state an employee may be terminated for violating the policies explained in the Policies as revised, for performance deficiencies, or for other reasons. Defendants also assert that Plaintiffs interpretation that the policies somehow require cause for termination is erroneous and inconsistent with the context of the relevant paragraph and the entire handbook. The handbook repeatedly emphasizes that employment is at will and that the policies in no way change the nature of employment. Defendants assert the phrase relied upon by Van Arkel, i.e., “Employment with Warren County is for an indefinite time and is terminable at any time, with cause by the employer, or at completion of a special grant or project”, should be read as a disjunctive statement where an employee may be terminated (1) at any time, or (2) for cause, or (3) at the completion of a project. Defendants contend that this reading is consistent with the surrounding text and commonly understood meaning of employment at-will. Indeed, Warren County asserts that since at least 1989 it has maintained the policy that its employees are “at will”, meaning they could quit or be terminated with or without cause at any time. Defendants further contend that after reviewing both versions of the Personnel Policies, it is clear that the provision in the agreement at issue requiring removal pursuant to the Personnel Policies actually guarantees nothing more than employment at-will. They argue the policies in no way modified the at-will nature of Van Arkel’s employment with the County, especially when recognizing the disclaimers in all versions of the handbook. See Anderson v. Douglas & Lomason Co., 540 N.W.2d at 288 (finding progressive discipline procedures in handbook did not create a contract because handbook contained disclaimer stating it was not intended to create any contractual rights and that the employer could change the terms of the handbook at any time); Travillion v. Heartland Pork Enters., 669 N.W.2d 262 (table), 2003 WL 21464807, at *3-4 (Iowa Ct.App. June 25, 2003) (finding handbook did not create an exception to the employment at-will doctrine where it contained a disclaimer, and a reasonable employee would understand that the employer had not assented to be bound by the handbook’s provisions). Finally, even assuming Defendants were required to have cause to terminate Van Arkel, Defendants contend VanderLinden had sufficient cause and made Van Arkel aware of that cause when she terminated his employment. Indeed, the letter delivered to Van Arkel states he was being terminated due to “irreconcilable differences in management philosophies.” While Van Arkel does not believe this to be a good enough reason, Defendants contend it is enough given the circumstances of this case and the requirements of the County Personnel Policies. Thus, Defendants contend they did not breach the agreement as asserted by Plaintiff. As a principal matter, the Court finds the policy in existence at the time of termination is the controlling policy, i.e., the 2001 policy as revised. Both the 1991 and 2001 policies provide express notice to employees that the personnel policies may be updated and or superceded. The Court further finds the policies do not modify the nature of Van Arkel’s employment with the County. Both policies cited by the parties frequently reference the at-will nature of most County employees and provide that the policies existence does not override or act as an exception to that relationship. The 2001 Personnel Policies provide, as part of the disciplinary/removal procedures, that “[t]hese rules are not necessarily the only areas in which disciplinary action may be taken if conduct or instances arise” and “[t]he County shall have the right to suspend or discharge immediately if it finds such action warranted by the circumstances.” The 2001 policies contain no provision requiring an employee be fired “for cause.” Based on these provisions, the Court finds the County adequately complied with the policies in effect and the policies provide no support for Plaintiffs breach of contract claim. Accordingly, the Court must deny Plaintiffs motion for partial summary judgment on this claim. To summarize, Plaintiffs motion for partial summary judgment must be denied in its entirety. At the outset, Plaintiffs breach of contract claim fails because there has been no Board ratification of the employment agreement, with or without consideration of Plaintiffs late-filed evidence. Even if the agreement was binding, the Court finds Defendants substantially complied with its terms. In addition, Chapter 331 is inapplicable either under the terms of the contract or by the terms of the statute itself. Finally, the County personnel policies do not create a contract to overcome Plaintiffs at-will status; the relevant policy guarantees nothing more than thé actions undertaken by Defendants’ in this case. C. Defendants’ Motion for Summary Judgment Defendants request the Court grant their motion for summary judgment on all counts asserted by Plaintiff in his Complaint. Defendants contend there is no genuine issue of material fact that would allow a reasonable - jury to find for Van Arkel. Van Arkel resists, contending there still remain genuine issues of material fact and, in fact, summary judgment should actually be granted in his favor on Counts V and VI of his Complaint as discussed supra. 1. Discrimination Claims Van Arkel asserts claims of discrimination based on both age and gender. In Count I of the Complaint, Van Arkel asserts an equal protection claim on the basis of age and/or gender under section 1983. Count II alleges age discrimination predicated on the Age Discrimination in Employment Act, 29 U.S.C. § 623, while Count III alleges gender discrimination based on Title VII of the Civil Rights Act as codified in 42 U.S.C. § 2000e-2. Defendants argue Van Arkel cannot establish his termination was the result of age or gender discrimination in violation of Title VII, the ADEA, or section 1983. The Eight Circuit applies the McDonnell Douglas analysis to a claim of employment discrimination whether brought under Title VII, the ADEA, or section 1983 as a violation of the- Fourteenth Amendment; therefore, the summary judgment standard is identical for each of these discrimination claims. See Ottman v. City of Independence, 341 F.3d 751, 756 (8th Cir.2003); Duffy, 123 F.3d at 1036-37. In cases where “the plaintiff lacks evidence that clearly points to the presence of an illegal motive, he must avoid summary judgment by creating' the requisite inference of unlawful discrimination through the McDonnell Douglas analysis, including sufficient evidence of pretext.” Griffith, 387 F.3d at 736 (citing Harvey v. Anheuser-Busch, Inc., 38 F.3d 968, 971 (8th Cir.1994)); see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under McDonnell Douglas, Plaintiff must first establish a prima facie case of discrimination. Reeves, 530 U.S. at 142, 120 S.Ct. 2097. Generally, to establish a prima fa-cie case of discrimination, a plaintiff must show the following: (1) plaintiff is a member of a protected class; (2) plaintiff was qualified for the position by meeting the employer’s legitimate job-related expectations; (3) plaintiff suffered an adverse employment action; (4) under circumstances that would allow a reasonable trier of fact to infer that unlawful discrimination occurred. See Whitley, 221 F.3d at 1055 (citing, inter alia, McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817). If Plaintiff is able to establish a prima facie case, the burden of production shifts to the Defendants to show a legitimate, nondiscriminatory reason for its action. Reeves, 530 U.S. at 142, 120 S.Ct. 2097. Upon such a showing, the presumption of discrimination disappears, see Hicks, 509 U.S. at 510, 113 S.Ct. 2742, and the burden shifts once more to the plaintiff who must prove that the defendant’s articulated justification is a pretext for discrimination. Reeves, 530 U.S. at 142-43, 120 S.Ct. 2097. The plaintiff may accomplish this either by rebutting the proffered reason with evidence of pretext or discriminatory animus. McDonnell Douglas, 411 U.S. at 804-05, 93 S.Ct. 1817; see also Burdine, 450 U.S. at 253, 101 S.Ct. 1089 (finding “the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination”), or by demonstrating that the proffered explanation is “unworthy of credence.” Reeves, 530 U.S. at 147, 120 S.Ct. 2097; Burdine, 450 U.S. at 256, 101 S.Ct. 1089; Weiland v. El Kram, Inc., 233 F.Supp.2d 1142, 1151-52 (N.D.Iowa 2002). In other words, where the plaintiff produces no strong (direct) evidence that illegal discrimination motivated the alleged adverse employment action, the plaintiff “must produce sufficient circumstantial evidence of illegal discrimination under the McDonnell Douglas paradigm — by presenting a prima facie case of intentional discrimination plus sufficient evidence that one or more of the [defendant’s] proffered nondiscriminatory reasons is a pretext for unlawful discrimination.” Griffith, 387 F.3d at 736-37. The burden of persuasion on the ultimate question of discrimination remains at all times with the plaintiff. Reeves, 530 U.S. at 142, 120 S.Ct. 2097 (“ ‘The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.’ ”) (quoting Burdine, 450 U.S. at 253, 101 S.Ct. 1089). a. Age Discrimination The ADEA makes it unlawful for an employer to discriminate against an employee who is at least 40 years old based on the employee’s age. 29 U.S.C. §§ 623(a)(1), 631. As Van Arkel has no strong (direct) evidence of age discrimination, the Court evaluates that claim using the McDonnell Douglas analysis. See Griffith, 387 F.3d at 736; Mayer v. Nextel West Corp., 318 F.3d 803, 806 (8th Cir.2003). To establish a prima facie case, Van Arkel must demonstrate that (1) he is at least 40-years old, (2) he was meeting the County’s reasonable performance expectations, i.e., he was qualified for his position, (3) he was terminated (4) because of his age and he was replaced by a person substantially younger so as to permit an inference of age discrimination. Mayer, 318 F.3d at 807 (citing McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817, and Hopper v. Hallmark Cards, Inc., 87 F.3d 983, 988 (8th Cir.1996)). Defendants argue that Van Arkel cannot prove the second and fourth prongs of this analysis. Even if the Court determines Van Arkel has established a prima facie case of age discrimination, Defendants assert they have proffered a legitimate, nondiscriminatory reason for Plaintiffs termination, and Van Arkel is unable to rebut that reason by showing it was merely pretextual. As to the second element, the standard “is not that of the ideal employee, but rather what the employer could legitimately expect.” Keathley, 187 F.3d at 920. Van Arkel had significant responsibility with respect to the County budget process and reported to both the County Auditor and the Board. Defendants acknowledge Van Arkel received high performance ratings from the Board as his job tasks were well done, but contend his performance was ultimately deficient in legitimate matters to the County, and that his employment was properly terminated when he failed to correct those deficiencies. See Erenberg v. Methodist Hosp., 357 F.3d 787, 793 (8th Ci