Kent v. Iowa (651 F. Supp. 2d 910, 2009)

ROBERT W. PRATT, Chief Judge.

Before the Court are two motions, filed by Defendants in the above-captioned actions. On May 14, 2009, Des Moines Area Community College Foundation d/b/a Des Moines Area Community College (“DMACC”), Jill Klubek (“Klubek”), and Sherri Reynolds (“Reynolds”) (collectively “DMACC Defendants”) filed a Motion for Summary Judgment. Clerk’s No. 52. On May 15, 2009, the State of Iowa, Newton Correctional Facility (“NCF”), Kris Weitzell (“Weitzell”), Troy White (“White”), Carol Van Gorp (“Van Gorp”), Cindy Conn (“Conn”), Carol Boggess (“Boggess”), Terry Mapes (“Mapes”), Larry Lipscomb (“Lipscomb”), and Scott Miller (“Scott Miller”) (collectively “State Defendants”) filed a Motion for Summary Judgment. Clerk’s No. 53. Plaintiffs Joseph Kent, James Davis, and Marty Marsh (collectively “Plaintiffs”) filed resistances to both Motions for Summary Judgment on June 15, 2009. Clerk’s Nos. 60, 62, 65, 66. The DMACC Defendants filed a Reply on June 23, 2009. Clerk’s No. 69. The State Defendants filed a Reply on July 6, 2009. Clerk’s No. 71. While the State Defendants have requested oral argument, the Court does not believe oral argument will substantially aid it in resolving the present issues. Accordingly, the matters are fully submitted.

I. PROCEDURAL BACKGROUND

Plaintiff Joseph Kent (“Kent”) filed a Complaint against the State Defendants and the DMACC Defendants on August 22, 2006. Case No. 4:06-cv-00402 (“Kent Case”), Clerk’s No. 1. Plaintiff James. Davis (“Davis”) filed a Complaint against the State Defendants and the DMACC Defendants on December 7, 2006. Case No. 4:06-cv-00582 (“Davis Case”), Clerk’s No. 1. Plaintiff Marty Marsh (“Marsh”) filed a Complaint against the State Defendants and the DMACC Defendants on December 14, 2006. Case No. 4:06-cv-00592 (“Marsh Case”), Clerk’s No. 1. All three Complaints assert the following causes of action: 1) Gender Discrimination, in violation of Title VII and the Iowa Civil Rights Act (“ICRA”); 2) Denial of Equal Protection under 42 U.S.C. § 1983 and the Iowa Constitution; 3) Slander; and 4) Intentional Interference with a Contract. Kent additionally asserts a claim for Disability Discrimination, in violation of the ICRA.

In early August 2007, the DMACC Defendants filed unresisted Motions to Consolidate in all three cases. Kent Case, Clerk’s No. 34; Davis Case, Clerk’s No. 34; Marsh Case, Clerk’s No. 28. Chief Magistrate Judge Thomas Shields granted the motions on September 5, 2007. Kent Case, Clerk’s No. 36; Davis Case, Clerk’s No. 37; Marsh Case, Clerk’s No. 30. The cases were consolidated for all purposes, including trial, and the Kent Case was designated the lead case.

II. FACTUAL BACKGROUND

At all times relevant to this action, Plaintiffs were employees of the Iowa Department of Corrections (“IDOC”), working at NCF. State Defs.’ Statement of Undisputed Facts (hereinafter “State Defs.’ Facts”) ¶ 1. Plaintiffs Kent and Davis are correctional counselors at NCF, while Plaintiff Marsh is a psychologist. DMACC Defs.’ Statement of Undisputed Material Facts (hereinafter “DMACC Defs.’ Facts”) ¶¶ 1-3. Defendant Mapes is the warden of NCF. State Defs.’ Facts ¶ 1. At the time of the events giving rise to Plaintiffs’ claims, Klubek was an adjunct instructor at DMACC who taught life skills to NCF inmates through a grant. DMACC Defs.’ Facts ¶ 4. Reynolds, another DMACC employee, was Klubek’s supervisor. State Defs.’ Facts ¶ 2.

In May 2005, the Iowa Corrections Training Center (“ICTC”) held training for Offender Workforce Development specialists. Id. During the ICTC training, concerns were raised about whether Klubek, one of the participants, should continue to work at NCF. Id. Laura Seheffert-James (“Seheffert-James”), an IDOC employee, met with Klubek, Reynolds, and others to discuss Klubek’s attitude and demeanor during the training. Id. At the meeting, Klubek acknowledged that she had a negative attitude. Id. Klubek then made some statements about incidents at NCF that prompted SchefferNJames to write the following e-mail to Warden Mapes:

The final week of a 3-week training for Offender Workforce Development Specialists was conducted at the [ICTC] on May 2-6, 2005. Jill Klubek, a Life Skills Specialist for DMACC who works at [NCF] was one of the participants in the training. Ms. Klubek has not completed practicum assignments prior to the training as was the expectation (even after having been granted an extension) nor did Ms. Klubek acknowledge she had not completed the assignments when she reported to training for this final week. This is unacceptable and reason to consider her termination from the program. It was then brought to my attention that Ms. Klubek was displaying what was perceived by the trainers and the NIC Corrections Program Specialist as a negative attitude that was counterproductive and distracting for other participants. This was monitored for a couple of days and on Day #3, May 4, 2005, it was decided an intervention was necessary.

Upon confronting Ms. Klubek with the observations of her negative behavior, she acknowledged she was indeed negative and it was decided it would be best for her to leave the program. When discussing her negative attitude, Ms. Klubek initially commented about the demeanor of the trainers and indicated she felt they were condescending and implied that contributed to her attitude. This writer further questioned Ms. Klubek as her attitude appeared to be so much more pervasive than what was supported by her comments about the trainers. Ms. Klubek then began to confide how she felt about the [IDOC] in general and about the [NCF] as she began to describe how difficult it was for her to work in that environment. Upon further discussion, Ms. Klubek became emotional and cried. She made a couple of comments that were particularly disturbing to this writer. She commented that we did not understand what it was like to work there (NCF) and began to comment about the staff and said, “I have had my desk searched”... “I have been asked my bra size” ... and made further comments about the sexual nature of conversations that took place in her office setting. When asked what staff she was referring to she said counselors and Psychologist. Ms. Reynolds then added that she herself had been in [Klubek’s] office visiting when she too had overheard conversations that she should not have heard between Marty Marsh and staff as she knew it was a Peer Support person and worked with staff so there were often other staff in the office. Ms. Reynolds noted she overheard conversation re: a “sex chair” and something about various sexual positions. As this writer was unaware Ms. Klubek was sharing an office, I asked more about that arrangement at which time, Ms. Reynolds indicated [Klubek] was supposed to be getting a different office, but that it had not happened yet and that they were waiting on something with regard to the computer. She then said that the person they needed to wait on was also a problem for [Klubek], Further comments were made by Ms. Reynolds that the computer person, Brenda Miller, and the Educational Instructor were all difficulties for Ms. Klubek.

Ms. Klubek noted that she does not say anything about the comments made to her or around her, indicating it was easier to do that than to say something. Upon wrapping up our discussion, this writer informed Ms. Klubek that being asked her bra size and overhearing conversations of a sexual nature as was described were clearly inappropriate. This writer also asked who, if anyone, was aware of some of the issues and was informed that management at Newton was made aware of some of the issues, specifically, Larry Lipscomb. (This writer is not sure which pieces Mr. Lipscomb was actually aware). This writer then informed Ms. Klubek and Ms. Reynolds that I did not believe Ms. Klubek should be hearing the types of conversations she said she was hearing and informed her that if something was in the works to get her a separate office, I did not know why that could not happen soon and that I would follow up on that. It was decided Ms. Klubek would leave the OWDS training this date and Ms. Reynolds told her to take the rest of the week off and that she did not need to go back to that environment at Newton. This writer informed Ms. Reynolds that I would follow up re: the office space and hoped that when Ms. Klubek returned to work the following Monday (May 9) that will have been addressed. The following day, May 5th, this writer spoke at length with Nancy Kucera re: the situation and attempted to contact Warden Mapes, but he was not in his office. Nancy Kucera made contacts on the following day and contacted me to inform the movement of Ms. Klubek’s office was in the works so, I just needed to continue to try to reach Warden Mapes to inform. This writer did speak via telephone with Warden Mapes on or about May 15th and advised of the situation. Warden Mapes was very concerned and said he would follow up and asked that I follow up in writing with the information I had provided. This is my follow-up documentation.

State Defs.’ App. at 1-2 (obvious typographical errors corrected). Warden Mapes forwarded Scheffert-James’ e-mail, along with instructions to investigate the matter, to Scott Miller, the Security Director at NCF, approximately ten minutes after he received it. State Defs.’ Facts ¶ 3. Scott Miller, in turn, sent an e-mail to his subordinate, White, instructing White to investigate. Id.

In June and July 2005, White conducted several interviews at NCF. State Defs.’ App. at 4-62. At the commencement of each interview, White informed the interviewee that there was a “formal investigation” and requested that the interviewee be truthful and not discuss the matter further with anyone outside of the interview room. See, e.g., id. at 14, 32, 37. White’s first interview was of Lipscomb, the Treatment Director for NCF. Id. at 41-46. Lipscomb related that Klubek had previously had conflicts with certain persons in the education department about classroom space, computer issues, and a “search” of her desk. Id. When asked about Klubek’s allegations that she had been exposed to discussions of a sexual nature, the following exchange ensued:

Q. Ms. Reynolds, Jill Klubek’s supervisor, says Marty Marsh and some staff had this sex chair conversation. She alleges she was in the room when this was taking place. You have any knowledge of that conversation?

A. Not that I can remember. Like I said that might have taken place and I wasn’t around.

Q. Okay. Have you ever been in the room personally when this sexual conversation go on that you know Ms. Klubek was there also?

A. I may have been, well depending on what she’s considering sexual.

Q. Okay.

A. I mean because we talk in general and ask you know kind of what you did on the weekend those kind of conversations but not specific in what she you know would be addressing.

Q. Well I guess all I have here it says sexual nature, her bra size, sexual chair and various positions, sexual positions those types of things.

A. Not that I’m aware of. Not that I can remember being around....

Q. Okay. Has she come to you with any concern saying that she’s been offended, she feels sexually harassed, anything like that?

A. No. This is a shock to me to tell you the truth.

Id. at 44-45.

White interviewed Klubek on June 28, 2005. Id. at 47-50E. Klubek discussed a situation where her desk had been searched by Julie Cline, but Klubek stated that the “situation is resolved.” Id. at 47A. Klubek relayed a conflict she had with Brenda Miller (“Miller”) regarding Klubek’s attendance at various training sessions. Id. at 50A-50B. Klubek also recounted conflicts she had with Lynn Slykhuis regarding a variety of issues. Id. at 50B-C (“[S]he doesn’t talk to me. She turns me in to security. There’s been issues with sharing the room. There was a huge issue in that computer lab that a bunch of miscommunication. The warden got so fed up he almost threw all of DMACC out....”). Regarding Davis, Klubek stated: “[Davis] makes comments both to me and to Cindy [Conn] in general ... he calls me Miss Jilly and he just flirts and he says things and sometimes it winds up turning into what’s your bra size.” Id. at 47B. Klubek also related hearing Davis and Marsh talking about the fact that Davis “was building a sexual positioning chair.” Id. at 49. Klubek recounted that Davis “frequently” talked about the chair, that “it was an ongoing joke for a period of weeks,” and that anybody who happened to be in the general office space would have heard talk of the sexual chair. Id. at 49 (“[Davis would] come in and talk about the progress on his chair ... at various times, various people were in there and Pm pretty sure there were a lot of people who knew he was building this chair.”). Klubek further relayed that she heard Marsh and Kent “having a conversation about the top ten ways you can tell your girlfriend is retarded.” Id. at 48. When Klubek told Marsh and Kent that she didn’t think their jokes were funny, “they just laughed.” Id. at 50. Klubek stated that she did not discuss any of the sexual conversations with Lipscomb: “I didn’t want an investigation. I was just going to keep all of that to myself.” Id. at 50E.

On June 29, 2005, White interviewed Conn, a treatment secretary that shared an office with Marsh and Klubek. Id. at 51-56. Conn stated that she did not recall ever hearing Davis ask Klubek her bra size or hearing Kent and Marsh discuss ways to tell if your girlfriend is retarded, but that she had overheard conversations between Davis and Marsh about a sex chair. Id. at 53-54. With regard to such conversations, Conn stated that she had heard Klubek say she didn’t like them, but that Davis and Marsh “usually just kept doing it” and Klubek “would just usually leave.” Id. Conn also stated that Davis, Marsh, and Kent “tease[d] [Klubek] all the time and you know they just make comments.” Id. at 54. Conn was interviewed by White again on July 12, 2005. Pis.’ App. in Supp. of Resistance to State Defs.’ Motion for Summ. J. (hereinafter “Pis.’ State App.”) at 132-35. During that interview, Conn stated that Davis, Marsh, and Kent teased Klubek about inmates Klubek had in her class: “[T]hey would just make comments that you’re never going to help inmates and you know once you’re here after awhile you’ll know that....” Id. at 132. Conn stated that Klubek told Plaintiffs to stop the teasing, but that they continued. Id. at 133. Additionally, the following exchange occurred during the interview:

Q. How about the sexual comments that you talk about? We talk about Jim Davis and Marty Marsh talking about the sexual things and stuff like that.

A. Yeah she did not want to hear that. She asked them not to.

Q. And they kept on correct?

A. Yeah.

Q. And you said at one time that ... she got up and left a couple time you could tell that she was angry you made a comment to at least Marty or maybe all of them or Marty that they needed to stop because she was going to get mad. Is that correct?

A. I did.

Q. And what did they say to you?

A. I don’t remember what they said for sure. They would laugh about it.... You know they ... didn’t quit. I mean they continued it you know.

Q. So they didn’t so it’d go on the next day or?

A. Yeah.

Q. The next time or?

A. The next day or so yes they would do it again.

Q. And all of them Jim Davis, Marty Marsh, Joe Kent would be involved in these types of things.

A. Yes. If they were in the room they usually were talking about it yes.

Id. at 134.

White interviewed Reynolds on June 30, 2005. State Defs.’ App. at 24-31. Reynolds stated that she had not personally heard anyone ask Klubek about her bra size, but that she was in the office several times when there were inappropriate conversations between Marsh and others:

A. There was an employee and I have no idea who he is come in to give Marty an update on their last treatment session or counseling session or whatever and he was updating him on the chair. I don’t know whether he purchased it or designed it or whatever and how well it worked for him and his partner. I just really felt like conversations like that should not have happened in front of strangers.

Q. So you were in the room when this conversation happened? Who else was there?

A. Yeah. Jill and I were sitting ... at her desk ... I don’t remember if Cindy was in there at that time or not.... Every single time I’ve come to visit Jill I’ve overheard conversations that I wish I did not.

Q. Was this, was it Marty Marsh and this same person?

A. No it was different people every time.

Q. Okay. Did you overhear any other conversations that were sexual in nature?

A. That’s, that was, no. Stories that Marty shared were often times sexually [sic] had sexual information about him and his personal life that I think are inappropriate to share in the work place ... [i]t made me feel very uncomfortable to visit Jill in her office.

Q. Did anybody ever say to Marty they felt uncomfortable that you’re aware of?

A. No.

Id. at 27. Reynolds never told Warden Mapes or Lipscomb about the sexual conversations, but she did emphasize to them that Klubek needed to be moved out of the office space she shared with Marsh and Conn. Id. at 27-28.

On July 7, 2005, White interviewed Kent. See State Defs.’ App. at 4-9. Kent specifically denied hearing any conversations about any of the following: Klubek’s bra size, a “sex chair,” sexual misconduct outside NCF, and “the top ten list of how to tell if you[r] girlfriend was retarded or not.” Id. Kent further denied ever hearing “any conversations regarding any sexual nature conversations in [Klubek’s] office area” or seeing Klubek walk out of a room “mad.” Id.

White also interviewed Marsh on July 7, 2005. Id. at 10-13B. Marsh denied ever asking or hearing anyone ask Klubek her bra size. Id. at 11. Marsh did, however, recall being present during a conversation wherein Davis discussed “building a couch that could be used for ... sexual positions.” Id. Marsh stated that he did not recall participating in the conversation, and he does not think he did because “I know I wouldn’t have done that.” Id. at 12. Marsh did, however, admit to joking with Kent about “how do you know if your girlfriend is retarded or something like that,” but he did not recall if Klubek was present during the conversation. Id. at 13. White conducted a second interview of Marsh on July 29, 2005. Id. at 71-94. During that interview, Marsh stated that he did recall a conversation between Conn and Davis about a bench that could be used for sexual positions, but that he was certain that Klubek “absolutely was not there” and that he, himself, did not ever say or discuss anything of a sexual nature in front of Klubek. Id. at 72, 82-87.

On July 12, 2005, White interviewed Activity Specialist Doug Talsma. Talsma recounted hearing Davis discussing a sex chair in the shared office space. Id. at 34. He recalled Marsh being present “a couple of times when [Davis] talked about it,” but does not recall if Marsh “said anything about it or not.” Id. Talsma did not recall if Klubek was in the office on any occasion when Davis discussed a sex chair and stated that he never heard discussions about bra size or how to tell if your girlfriend is retarded. Id. at 34-35.

White interviewed Davis on July 6, 2005, and again on July 12, 2005. Id. at 14-23. In the first interview, Davis recalled discussing a “love bench ... love chair, love seats,” but stated he could not recall if there were ever discussions of “sexual positions being performed in that chair.” Id. at 15. He stated that he likely had conversations with Marsh of a sexual nature, but did not specifically recall ever having any such conversation around Klubek or anybody else. Id. In the second interview, Davis specifically denied asking Klubek her bra size, and stated that he could not recall ever discussing a “sex chair” or any such device in front of Klubek or any other female. Id. at 17-18. Davis recounted having some “lively discussions” with Klubek, but stated that the only time she ever left the room mad was after Klubek herself made a comment about “hating C/Os and hating police officers.” Id. at 18-19.

The decision of what, if any, discipline to impose on an employee of NCF is the decision of the warden, although the warden may accept recommendations from his Executive Team. State Defs.’ Facts ¶ 5. According to Warden Mapes, at the conclusion of White’s investigation, both he and his Executive Team were convinced that the sexually related conversations alleged by Klubek against Kent, Davis, and Marsh had actually occurred. Id. Accordingly, on August 11, 2005, Kent was suspended for two days without pay, while Davis and Marsh were each suspended for five days without pay. State Defs.’ App. at 57-60. The letters to Plaintiffs stated that each had been found in violation of NCF policy O.M. 3-7, which provides:

4. Except for scheduled breaks, employees will not engage in activities unrelated to their duties. They will avoid activities which interfere with the institution’s functions, including but not limited to loafing, loitering, sleeping on duty, horseplay, conducting unauthorized personal business while on duty, excessive visiting while on duty, personal reading, writing, typing, personal phone calls or use of any office equipment for personal business. You are to avoid boisterous or inappropriate discussions and behavior, which would disrupt the work of others or the ability to conduct normal business.

24. Employees will treat other employees, offenders, guests, visitors and the public with respect, courtesy and fairness. In interchanges with staff, offenders and visitors, employees will maintain a quiet demeanor even under provocation. Employees are prohibited from using profane, indecent, abusive or insulting language and gestures toward an offender or staff. The use of profanity is discouraged.

30. All harassment including, but not limited to harassment based on age, race, creed, color, religion, gender, sexual orientation, marital status, national origin, age or physical or mental disability is prohibited.

Id. Davis and Marsh were also found to be in violation of Iowa Department of Corrections policy AD-PR-18, which provides that the following conduct is impermissible in the workplace:

c. The conduct has the purpose or effect of unreasonably interfering with an employee’s work performance or creating an intimidating, hostile or offensive work environment....

i. Sexual jokes, remarks, or innuendoes about another person, or about women and men in general.

Id. at 59-62.

Davis, Kent, and Marsh each filed a grievance with regard to their respective disciplinary action. As a result of the grievances, each Plaintiffs suspension was reduced by way of settlement agreement. Kent signed an agreement on January 9, 2006, which provided that his discipline would be rescinded and all lost wages and benefits restored. State Defs.’ App. at 66. On January 20, 2006, Marsh signed an agreement which noted he “received alternate discipline of a paper suspension; therefore there wasn’t any lost wages or accruals.” Id. at 64. Thus, Marsh’s agreement provided that so long as he had no “similar work rule violations” up to March 11, 2006, the written reprimand would be removed from his record. Id. On March 17, 2006, Davis signed an agreement vacating his suspension and requiring reimbursement of lost pay, sick leave, and vacation time. Id. at 63. Id. Kent’s Settlement Agreement provided that the “agreement sets no precedent for any pending or future grievances” and that “[t]he grievance underlying this case [ ] is hereby withdrawn with prejudice.” Id. at 66. Marsh’s and Davis’ agreements, however, each contained paragraphs stating:

This Agreement is a good-faith settlement of all issues arising from the facts alleged in the grievance. No promises for any other, or future, consideration have been made by anyone. The above consideration is all that will be received for the claims and potential causes of action addressed and arising from the Grievant’s claim in this grievance.

The terms of this settlement agreement are considered by the parties to pertain only to the specific facts involved in this matter. Neither party shall rely on this agreement or cite the same as precedent in any grievance, arbitration, litigation, or other proceeding in the future.

Id. at 63-65.

III. STANDARD OF REVIEW

Summary judgment has a special place in civil litigation. The device “has proven its usefulness as a means of avoiding full-dress trials in unwinnable cases, thereby freeing courts to utilize scarce judicial resources in more beneficial ways.” Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir.1991). In operation, the role of summary judgment is to pierce the boilerplate of the pleadings and assay the parties’ proof in order to determine whether trial is actually required. See id.; see also Garside v. Oseo Drug, Inc., 895 F.2d 46, 50 (1st Cir.1990). “[Sjummary judgment is an extreme remedy, and one which is not to be granted unless the movant has established his right to a judgment with such clarity as to leave no room for controversy and that the other party is not entitled to recover under any discernible circumstances.” Robert Johnson Grain Co. v. Chem. Interchange Co., 541 F.2d 207, 209 (8th Cir.1976) (citing Windsor v. Bethesda Gen. Hosp., 523 F.2d 891, 893 n. 5 (8th Cir.1975)). The purpose of the rule is not “ ‘to cut litigants off from their right of trial by jury if they really have issues to try,’ ” Poller v. Columbia Broad. Sys., Inc., 368 U.S. 464, 467, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962) (quoting Sartor v. Ark. Natural Gas Corp., 321 U.S. 620, 627, 64 S.Ct. 724, 88 L.Ed. 967 (1944)), but to avoid “useless, expensive and time-consuming trials where there is actually no genuine, factual issue remaining to be tried.” Anderson v. Viking Pump Din, Houdaille Indus., Inc., 545 F.2d 1127, 1129 (8th Cir.1976) (citing Lyons n Board of Educ., 523 F.2d 340, 347 (8th Cir.1975)).

As employment actions are inherently fact based, the Eighth Circuit has repeatedly cautioned that summary judgment in such cases should “seldom be granted ... unless all the evidence points one way and is susceptible to no reasonable inferences sustaining the position of the nonmoving party.” Hindman v. Transkrit Corp., 145 F.3d 986, 990 (8th Cir. 1998) (citations omitted). See also Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir.1994) (citing Johnson n Minn. Historical Soc’y, 931 F.2d 1239, 1244 (8th Cir. 1991)) (“[Sjummary judgment should seldom be used in employment discrimination cases.”); Hillebrand v. M-Tron Indus., Inc., 827 F.2d 363, 364 (8th Cir.1987), cert. denied, 488 U.S. 1004, 109 S.Ct. 782, 102 L.Ed.2d 774 (1989). This is because “inferences are often the basis of the claim ... and ‘summary judgment should not be granted unless the evidence could not support any reasonable inference’ of discrimination.” Breeding v. Gallagher & Co., 164 F.3d 1151, 1156 (8th Cir.1999) (quoting Lynn v. Deaconess Med. Ctr.-W. Campus, 160 F.3d 484, 486-87 (8th Cir.1998)).

Nonetheless, the plain language of Federal Rule of Civil Procedure 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. See Celotex Corp. v. Catrett, All U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The precise standard for granting summary judgment is well-established and oft-repeated: summary judgment is properly granted when the record, viewed in the light most favorable to the nonmoving party and giving that party the benefit of all reasonable inferences, shows that there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Harlston n McDonnell Douglas Corp., 37 F.3d 379, 382 (8th Cir.1994). The Court does not weigh the evidence nor make credibility determinations, rather it only determines whether there are any disputed issues and, if so, whether those issues are both genuine and material. See Anderson n Liberty Lobby, Inc., All U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Wilson n Myers, 823 F.2d 253, 256 (8th Cir.1987) (“Summary judgment is not designed to weed out dubious claims, but to eliminate those claims with no basis in material fact.”).

It is the unusual case where the party shouldering the burden of proof prevails on a summary judgment motion. See Turner v. Ferguson, 149 F.3d 821, 824 (8th Cir.1998) (“Summary judgments in favor of parties who have the burden of proof are rare, and rightly so.”).

The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact based on the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any. See Celotex, All U.S. at 323, 106 S.Ct. 2548; Anderson, All U.S. at 248, 106 S.Ct. 2505. Once the moving party has carried its burden, the nonmoving party must go beyond the pleadings and, by affidavits or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is genuine issue for trial. See Fed. R.Civ.P. 56(c), (e); Celotex Corp., All U.S. at 322-23, 106 S.Ct. 2548; Anderson, All U.S. at 257, 106 S.Ct. 2505. “[T]he mere existence of some alleged factual dispute between the parties will not defeat a motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson, All U.S. at 247-48, 106 S.Ct. 2505. An issue is “genuine,” if the evidence is sufficient to persuade a reasonable jury to return a verdict for the nonmoving party. See id. at 248, 106 S.Ct. 2505. “As to materiality, the substantive law will identify which facts are material.... Factual disputes that are irrelevant or unnecessary will not be counted.” Id.

IV. LAW AND ANALYSIS

A. The Grievance Releases

State Defendants and DMACC Defendants both contend that Plaintiffs Davis and Marsh cannot maintain any claims against any of the Defendants because they signed releases. Davis’s Settlement Agreement, in its entirety, states:

The State of Iowa, Department of Administrative Services, Department of Corrections, Newton Correction Facility, hereinafter State, and the United Electric Radio and Machine Workers of America Local 893 Iowa United Professionals, hereinafter Union, enter into the following Agreement in full and final resolution of the grievances filed by Jim Davis ... regarding Article IV section 11 Discipline and Discharge.

This settlement arose out of a situation in which the Grievant received a five (5) day suspension without pay on August 11, 2005. Based on this situation the parties agree to the following:

1. The State will remove the forty (40) hour suspension.

2. The State will reimburse the Grievant for forty (40) hours of lost pay and will adjust his sick leave and vacation leave banks for any lost accruals.

3. This Agreement is a good-faith settlement of all issues arising from the facts alleged in the grievance. No promises for any other, or future, consideration have been made by anyone. The above consideration is all that will be received for the claims and potential causes of action addressed and arising from the Grievant’s claim in this grievance.

4. The terms of this settlement agreement are considered by the parties to pertain only to the specific facts involved in this matter. Neither party shall rely on this agreement or cite the same as precedent in any grievance, arbitration, litigation, or other proceeding in the future.

State Defs.’ App. at 63 (personal identifiers omitted). Marsh’s Settlement Agreement provides:

The State of Iowa, Department of Administrative Services — Human Resource Enterprise, Department of Corrections — Newton Correction Facility, hereinafter State, and the American Federation of State, County, and Municipal Employees Iowa Council 61, hereinafter Union, enter into the following Agreement in full and final resolution of the grievance filed by Marty Marsh, hereinafter Grievant ... that alleges vi-

olations Article IV, Section 9 (Discipline and Discharge) of the 2005-07 Collective Bargaining Agreement between the parties.

This settlement arose out of a situation in which the Grievant was given a five (5) day suspension for violating the Newton Correctional Facility policy 3-7. The Grievant received alternative discipline of a paper suspension; therefore there wasn’t any lost wages or accruals. Based on this situation the parties agree to the following:

1. The State will reduce the five (5) day suspension to a Written Reprimand. If no further similar work rule violations of NCF policy O.M. 3-7, Section ILD.24, up to March 11, 2006 the State will remove the Written Reprimand.

2. This Agreement is a good-faith settlement of all issues arising from the facts alleged in the grievance. No promises for any other, or future, consideration have been made by anyone. The above consideration is all that will be received for the claims and potential causes of action addressed and arising from the Grievant’s claims in this grievance.

3. The terms of this settlement agreement are considered by the parties to pertain only to the specific facts involved in this matter. Neither party shall rely on this agreement or cite the same as precedent in any grievance, arbitration, litigation, or other proceeding in the future.

Id. at 64 (personal identifiers omitted).

State Defendants argue that the releases are unambiguous, and reflect acknowledgment by Davis and Marsh that the return of lost pay and the expungement of disciplinary records is “all that will be received” from even “potential” causes of action. State Defs.’ Br. at 6. Further, State Defendants point out that their intent in entering into the Settlement Agreements was that the “releases” contained therein would bar any future legal actions by Plaintiffs: “If it were now held that [State] Defendants were potentially subject to a lawsuit for money damages based on the rescinded disciplines, then they would have given up the right to discipline Davis and Marsh, paid them salary as well as vacation and sick leave accruals, and received absolutely nothing in exchange.” Id. at 7. Similarly, DMACC Defendants argue that they are intended third-party beneficiaries to the releases and that the releases signed by Davis and Marsh were intended to release not only the State Defendants, but also the DMACC Defendants from “any future litigation regarding this matter.” DMACC Defs.’ Br. at 17.

Under the general rules of contract interpretation, the intent of the parties in creating the contract controls. Smith Barney, Inc. v. Keeney, 570 N.W.2d 75, 78 (Iowa 1997). Unless there is an ambiguity, however, the intent of the parties is determined by what the contract itself says. Id. (citing Iowa Fuel & Minerals, Inc. v. Iowa State Bd. of Regents, 471 N.W.2d 859, 862 (Iowa 1991)). “A contract is to be interpreted as a whole, and it is assumed in the first instance that no part of it is superfluous.” Id. (citing Iowa Fuel, 471 N.W.2d at 863). “The interpretation that gives a reasonable, lawful, and effective meaning to all terms is preferred to an interpretation that leaves a portion of the agreement of no effect.” Id. (citing Iowa Fuel, 471 N.W.2d at 863).

In interpreting a contract, the Court must engage in a two step process. Walsh v. Nelson, 622 N.W.2d 499, 503 (Iowa 2001). “First, from the words chosen, a court must determine ‘what meanings are reasonably possible.’ ” Id. (quoting Restatement (Second) of Contracts § 202 cmt. a, at 87 (1981)). “In so doing, the court determines whether a disputed term is ambiguous.” Id. The question of whether a term is ambiguous will not be determined by the mere fact that the parties disagree about its meaning. Id. (citing Harbig Drug Co. v. Harbig, 602 N.W.2d 794, 797 (Iowa 1999)). Rather, a term is ambiguous if, “ ‘after all pertinent rules of interpretation have been considered,’ ‘a genuine uncertainty exists concerning which of two reasonable interpretations is proper.’ ” Id. (quoting Harbig Drug Co., 602 N.W.2d at 797).

As a preliminary matter, the Court rejects DMACC Defendants’ contention that they are third-party beneficiaries of the settlement agreements. See Khabbaz v. Swarbz, 319 N.W.2d 279, 286 (Iowa 1982) (stating that incidental beneficiaries, as opposed to third-party beneficiaries, have no right to enforce the contract at issue). The Iowa Supreme Court has adopted the following principles from the Restatement (Second) of Contracts to determine when a stranger to a contract is nonetheless a third party beneficiary of that contract:

(1) Unless otherwise agreed between promisor and promisee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and either

(a) the performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary; or

(b) the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.

(2) An incidental beneficiary is a beneficiary who is not an intended beneficiary.

Vogan v. Hayes Appraisal Assoc., Inc., 588 N.W.2d 420, 423 (Iowa 1999) (citing

Tredrea v. Anesbhesia & Analgesia, P.C., 584 N.W.2d 276, 281 (Iowa 1998) (quoting Restatement (Second) of Contracts § 302 (1979))). “The primary question” in determining whether DMACC Defendants are third-party beneficiaries to the Settlement Agreements is “whether the contract manifests an intent to benefit a third party.” Tredrea, 584 N.W.2d at 281 (citing Midwesb Dredging Co. v. McAninch Corp., 424 N.W.2d 216, 224 (Iowa 1988)). The intent to benefit the third party need not, however, be an intent to confer a direct benefit on the third party. Id. The Iowa Supreme Court explained this concept in Tredrea:

[W]hen a contract is made, the two or more contracting parties have separate purposes; each is stimulated by various motives, some of which he may not be acutely conscious. The contract itself has no purpose, motive, or intent. The two parties may have purposes, motives and intentions; but they never have quite the same ones.

In third-party cases, the right of such party does not depend upon the purpose, motive, or intent of the promisor. The motivating cause of his making the promise is usually his desire for the consideration given by the promisee. In few cases will he be moved by a desire to benefit a third person....

A third party who is not a promisee and who gave no consideration has an enforceable right by reason of a contract made by two other[s] ... if the promised performance will be of pecuniary benefit to the third party and the contract is so expressed as to give the promisor reason to know that such benefit is contemplated by the promisee as one of the motivating causes of his making the contract.

584 N.W.2d at 281-82. Accordingly, the Court must “look to the contract itself, and to the circumstances surrounding it, to determine if there was an intent” by the named parties to the contracts to benefit the DMACC Defendants. Midwest Dredging Co., 424 N.W.2d at 225.

Reviewing the Settlement Agreements, it is clear that there is absolutely no reference therein to any intended third-party beneficiary. The parties to the contract are succinctly stated as being the State of Iowa and NCF, Plaintiffs Davis and Marsh, and Davis’ and Marsh’s respective unions. No reference is made to any other employee or agent of the parties to the contract, or to any other individual or entity. Indeed, the terms of the agreement clearly reference the intent of the State and NCF to engage in “full and final resolution” of the grievances filed by Marsh and Davis. Moreover, while State Defendants and DMACC Defendants point to Warden Mapes’ deposition testimony in support of the contention that NCF intended the Settlement Agreements to include a release of all potential claims by Plaintiffs as to both the State Defendants and the DMACC Defendants, Plaintiffs have pointed the Court toward clear evidence that Plaintiffs did not intend to relinquish all claims against all parties affiliated in any way with their disciplinary actions or the grievance procedures relevant thereto. See Pis.’ App. in Resistance to DMACC Defs.’ Mot. for Summ. J. (hereinafter “Pis.’ DMACC App.”) at 2 (Davis testifying at deposition about his belief that the Settlement Agreement “pertains to this particular grievance ... and grievances in the future. That’s the way I understand it. I was told by my union president that this in no way, shape, or form would stop me from litigation, future litigation.”); 19 (Marsh testifying at deposition that “There had been an attempt to place a clause [in the Settlement Agreement] that said that we would not sue them after this .... We said that we absolutely would not agree to anything that would prevent us from suing afterward, so we had them take that out.... [M]y union called Todd Sadler [the individual who facilitated the settlement agreements] and confirmed that that would not prevent me from suing.”). Given that the language of the Settlement Agreements does not contemplate any third-party beneficiaries, and given that there are genuine issues of material fact regarding the parties’ intentions regarding third party beneficiaries to the Settlement Agreements, the Court cannot find as a matter of law that DMACC Defendants were intended third-party beneficiaries to the Settlement Agreements.

Moreover, even assuming that DMACC Defendants were, in fact, intended third-party beneficiaries to the releases contained in the Settlement Agreements, the Court is not convinced that the releases operate to bar Davis’ and Marsh’s claims in the present action. The plain language of the release provides that the parties are agreeing to settle “all issues arising from the facts alleged in the grievance.” State Defs.’ App. at 63, 64 (emphasis added). Likewise, the release provides that the consideration received by Plaintiffs is all that they will get “for the claims and potential causes of action addressed and arising from the Grievant’s claims in this Grievance.” Id. (emphasis added). None of the parties to this litigation, however, have provided the Court with a copy of either Davis’ or Marsh’s grievance, making it impossible for the Court to determine the scope of the alleged waiver. That is, the Court is unable to determine if the present claims “aris[e] from the facts alleged in the grievance,” or if the present claims were “addressed and aris[e] from the Grievant’s claims” asserted in their grievances. Accordingly, summary judgment in favor of either the State Defendants or the DMACC Defendants is improper on the basis of the Settlement Agreements and the related record now before the Court.

B. Gender Discrimination

Kent, Davis, and Marsh each allege that the State Defendants are liable for gender discrimination, in violation of Title VII and the ICRA. Specifically, each Plaintiff contends that State Defendants discriminated against him on the basis of his gender because they “did not investigate and/or discipline female employees concerning allegations made against them by Klubek which were similar to the allegations made against Plaintiff[s].” See Kent Compl. ¶ 26; Davis Compl. ¶ 25; Marsh Compl. ¶ 25.

Title VII of the Civil Rights Act of 1964 makes it “an unlawful employment practice for an employer ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(l). Plaintiffs do not allege direct evidence of gender discrimination in this matter. See Beshears v. Asbill, 930 F.2d 1348, 1354 (8th Cir.1991) (“[Direct evidence may include evidence of actions or remarks of the employer that reflect a discriminatory attitude ... [c]omments which demonstrate a ‘discriminatory animus in the decisional process’ ... or those uttered by individuals closely involved in employment decisions may constitute direct evidence.” (citations omitted)). Thus, Plaintiffs bear the burden of proving discrimination indirectly. Where a plaintiff relies on circumstantial, rather than direct, evidence of intentional discrimination, the Court applies the three-stage burden shifting approach developed by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and later refined in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506-07, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); Dammen v. UniMed Med. Ctr., 236 F.3d 978, 980 (8th Cir.2001).

Under the McDonnell Douglas framework, plaintiffs bear the initial burden of establishing a prima facie case of discrimination. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. To establish a prima facie case of gender discrimination on a disparate treatment theory, such as that alleged here, a plaintiff must demonstrate that: (1) he is within a protected class; (2) he is qualified to perform his job, or was meeting the legitimate expectations of his employer; (3) he suffered an adverse employment action; and (4) similarly situated employees outside the protected class were treated more favorably. See Schoffstall v. Henderson, 223 F.3d 818, 825 (8th Cir.2000); Clark v. Runyon, 218 F.3d 915, 918 (8th Cir.2000); Whitley v. Peer Review Sys., Inc., 221 F.3d 1053, 1055 (8th Cir.2000). In light of the fact that Plaintiffs are male, the McDonnell Douglas prima facie test requires an additional step. The Eighth Circuit Court of Appeals has held that to establish a prima facie case of reverse gender discrimination, a plaintiff must either present direct evidence or show “that background circumstances support the suspicion that the defendant is that unusual employer who discriminates against the majority.” Duffy v. Wolle, 123 F.3d 1026, 1036 (8th Cir.1997) (quoting Notan v. Denver Water Dep’t, 971 F.2d 585, 590 (10th Cir.1992) (internal citations and quotations omitted)).

If Plaintiffs establish a prima facie case, the burden of production shifts at the second stage to the State Defendants, who must articulate some legitimate, nondiscriminatory reason for the adverse employment action. Burdine, 450 U.S. at 253, 101 S.Ct. 1089. If the State Defendants carry this burden of production, the presumption raised by the prima facie case is rebutted and “drops from the case.” Id. at 255 n. 10, 101 S.Ct. 1089. The burden then shifts back at the third and final stage to Plaintiffs, who are given the opportunity to show that the employer’s proffered reason was merely a pretext for discrimination. Id. at 253, 101 S.Ct. 1089. The ultimate burden remains with Plaintiffs at all times to persuade the trier of fact that the adverse employment action was motivated by intentional discrimination. Id. In the present case, the State Defendants challenge the third and fourth prongs of the traditional prima facie analysis, that is, the State Defendants contend that Plaintiffs cannot show either an adverse employment action or that similarly situated females were treated more favorably the Plaintiffs. State Defendants also contend that Plaintiffs cannot demonstrate that “background circumstances support the suspicion that the defendant is the unusual employer who discriminates against the majority.” See Duffy, 123 F.3d at 1036.

1. Did Plaintiffs suffer an adverse employment action?

In order to establish a prima facie case of gender discrimination, each plaintiff must demonstrate that he suffered an adverse employment action. LaCroix v. Sears, Roebuck, and Co., 240 F.3d 688, 693 (8th Cir.2001). The Eighth Circuit has stated that “[n]ot everything that makes an employee unhappy is an actionable adverse employment action.... Rather, an adverse employment action is exhibited by a material employment disadvantage, such as a change in salary, benefits or responsibilities.” Id. at 691. “‘Mere inconvenience without any decrease in title, salary, or benefits is insufficient to show an adverse employment action.’ ” Sallis v. Univ. of Minn., 408 F.3d 470, 476 (8th Cir.2005) (quoting Cruzan v. Special Sch. Dist. No. 1, 294 F.3d 981, 984 (8th Cir. 2002)). Minor changes in working conditions that inconvenience an employee or alter the employee’s work responsibilities do not rise to the level of an adverse employment action. Sallis, 408 F.3d at 476. Applying this high standard, the Eighth Circuit has concluded that “[c]on-duct that is merely rude, abrasive, unkind, or insensitive does not come within the scope of the law.” Shaver v. Indep. Stave Co., 350 F.3d 716, 721 (8th Cir.2003) (construing the Americans with Disabilities Act and observing that “anti-discrimination laws do not create a general civility code”).

It is undisputed that each Plaintiff was initially suspended without pay for engaging in or participating in “inappropriate conversation in front of another staff person who found the conversation offensive.” See State Defs.’ App. at 57-62. Kent was suspended for two days, while Davis and Marsh were each suspended for five days. Id. Each Plaintiff actually served his suspension and lost pay in their corresponding paychecks. Pls.’ State Facts ¶ 13. As a general rule, being suspended without pay is sufficient to state an adverse employment action. See McClure v. Career Sys. Dev. Corp., 447 F.3d 1133, 1137 (8th Cir.2006). The facts in the present case do not, however, end with Plaintiffs serving their suspensions. Rather, each Plaintiff filed a grievance with regard to his suspension. Several months after the suspensions were actually served, each Plaintiffs suspension was ultimately rescinded and each received back pay and the reinstatement of any lost benefits.

Case law addressing this type of situation has produced mixed results. State Defendants point the Court to a series of cases holding that initial employment decisions that are later reversed are not actionable adverse employment actions under Title VII. See State Defs.’ Reply Br. at 2. For instance, in Dobbs-Weinstein v. Vanderbilt University, the plaintiff was denied tenure and informed that her teaching appointment at Vanderbilt University would conclude the following year. 185 F.3d 542, 543 (6th Cir.1999). The plaintiff filed an internal grievance and, ultimately, a Title VII gender discrimination claim. Id. After the plaintiffs employment ended, but while her Title VII lawsuit was still pending, the Vanderbilt Board of Trustees reversed the tenure decision and rehired the plaintiff as a tenured professor with full back pay. Id. The Sixth Circuit held that the plaintiff had not suffered a cognizable Title VII adverse employment action, noting that “ ‘tenure decisions in an academic setting involve a combination of factors which tend to set them apart from employment decisions generally.’ ” Id. (quoting Zahorik v. Cornell Univ., 729 F.2d 85, 92-93 (2d Cir. 1984)). Specifically, the Dobbs-Weinstein court relied on Page v. Bolger to determine that the initial tenure decision was not an “ultimate employment decision”:

[Dobbs-Weinstein] has not here suffered a final or lasting adverse employment action sufficient to create a prima facie case of employment discrimination under Title VII. To rule otherwise would be to encourage litigation before the employer has an opportunity to correct through internal grievance procedures any wrong it may have committed.

Id. at 546 (citing Page v. Bolger, 645 F.2d 227, 233 (4th Cir.1981) (“Disparate treatment theory ... and comparable provisions of Title VII ... ha[ve] consistently focused on the question whether there has been discrimination in what could be characterized as ultimate employment decisions .... [I]t is obvious to us that there are many interlocutory or mediate decisions having no immediate effect upon employment conditions which were not intended to fall within the ... proscriptions ... of Title VII.”)).

The Eighth Circuit reached a similar conclusion in Okruhlik v. University of Arkansas, another tenure case. 395 F.3d 872 (8th Cir.2005). There, the plaintiff sued under Title VII, claiming that her denial of tenure was motivated by a discriminatory animus. Id. at 877. The district court granted summary judgment in favor of the defendant, concluding that the plaintiff could not demonstrate that she had suffered an adverse employment action because she had failed to complete all levels of the tenure review process. Id. at 877-78. Specifically, the plaintiff did not appeal the denial of tenure to the university’s president, despite a university policy providing “that a final decision on tenure has not been made until the president has issued his decision.” Id. at 880. The Court of Appeals affirmed the decision of the district court. Id. at 879-80. Noting the particular university policies on the tenure review process, and the fact that the “academic setting and complex nature of tenure decisions ... distinguishes them from employment decisions generally,” the Court adopted the principles of Dobbs-Weinstein in concluding that a university “should have the opportunity to correct errors through its complete internal appeals process that precedes its final decision.” Id. at 879 (citing Howze v. Virginia Polytechnic Inst. & State Univ., 901 F.Supp. 1091, 1097 (W.D.Va.1995) (“[W]here the tenure decision was following the chain of appeal, each decision along the way is not actionable. Only the final decision is the ultimate act.”)).

Most cases that have reached a conclusion that only ultimate employment decisions are actionable, including Okruhlik, explicitly relied on Dobbs-Weinstein in their reasoning. In 2004, however, the Sixth Circuit explicitly rejected the “ultimate employment decision” standard it employed in Dobbs-Weinstein, at least with regard to cases that do not involve tenure decisions:

We now join the majority of other circuits in rejecting the “ultimate employment decision” standard. First and foremost, it is contrary to the plain language of Title VII, which provides that an employer must not “discriminate against” an employee based upon a prohibited classification. As this court has found, the words “discriminate against” literally mean “any kind of adverse action.” Congress could have provided that employers shall not “discriminate against an employee when making ultimate employment decisions,” but instead it chose to use the words “discriminate against” with no such qualifier.

Second, the employment action taken in the present case (suspension without pay for thirty-seven days) is not the type of employment action that this court developed the adverse-employment-action element to filter. The adverse-employment-action element is a warranted judicial interpretation of Title VII intended to deter discrimination lawsuits based on trivial employment actions, such as those that cause a “mere inconvenience” or a “bruised ego.” But as an exception to the strictly literal reading of the statute, the adverse-employment-action element of a Title VII lawsuit must not be interpreted too broadly. Taking away an employee’s paycheck for over a month is not trivial, and if motivated by discriminatory intent, it violates Title VII.

Third, the “ultimate employment decision” standard contravenes “the purpose of Title VII to make persons whole for injuries suffered on account of unlawful employment discrimination.” While the standard ensures that a wrongfully suspended employee eventually receives back pay, it allows an employer unilaterally to cut off the employee’s claims for other damages, which have been explicitly authorized by Title VII since the Civil Rights Act of 1991, such as interest on the back pay, attorney’s fees, emotional suffering, and punitive damages. Although Burlington Northern argues that it made White whole when it granted her back pay, Congress has declared that part of making a Title VII plaintiff whole is compensating her for interest on the back pay, attorney’s fees, and emotional suffering. In this ease, the jury found that White had suffered $43,500 in damages other than back pay due to Burlington Northern’s retaliation. Lastly, the “ultimate employment decision” standard is in tension with Supreme Court cases holding that the statute of limitations on a Title VII claim is not tolled during the pendency of an internal grievance process. According to the Supreme Court, a Title VII claim arises on the date the alleged discriminatory decision occurs, even though an employee has challenged the decision via an internal grievance process. The Supreme Court has rejected the argument that the pendency of an internal grievance process renders the employment decision “tentative” or “non-final” for purposes of Title VII. The Supreme Court has also rejected the argument that “the danger of possible conflict between the concurrent pursuit of both collective-bargaining and Title VII remedies should result in tolling the limitations period for the latter while the former proceeds to conclusion.” The alleged discriminatory decision in the present case was the suspension without pay. White’s election to challenge this decision through an internal grievance process does not render the decision not actionable under Title VII.

White v. Burlington N. Santa Fe. Rwy. Co., 364 F.3d 789, 801-03 (6th Cir.2004) (internal citations and quotations omitted).

Other courts have employed reasoning similar to that in White to conclude that an adverse employment action is not negated for purposes of Title VII merely because the employer later remedied the adverse action. In Lovejoy-Wilson v. NOCO Motor Fuel, Inc., for example, an employee was suspended for one week without pay, but was later reimbursed for her lost wages. 263 F.3d 208, 223 (2d Cir.2001). The Second Circuit found that a reasonable jury could find that the plaintiff suffered an adverse employment action because she “at least suffered the loss of the use of her wages for a time.” Id. at 224; see also Phelan v. Cook County, 463 F.3d 773, 780 (7th Cir.2006) (concluding that an employee that was terminated, but later reinstated and awarded back pay, had stated an adverse employment action: “Consistent with Title VU’s goal of deterring discrimination, we decline to endorse a rule that would allow employers to escape liability by merely reinstating the aggrieved employee months after termination, whenever it becomes clear that the employee intends to pursue her claims in court. Such a rule could create an unintended economic incentive for employers to reinstate an employee who files a discrimination suit as a means to avoid Title VII penalties whenever the costs of reinstating the employee are lower than the employer’s exposure in a[ ] Title VII suit”); Roberts v. Roadway Exp., Inc., 149 F.3d 1098, 1104 (10th Cir.1998) (“Actions such as suspensions or terminations are by their nature adverse, even if subsequently withdrawn.”).

Having reviewed the well-reasoned case law on both sides of the issue, the Court finds the reasoning of White compelling, and concurs with its rejection of the “ultimate employment decision” standard in non-tenure cases as contrary to both the plain language of Title VII and Title VII’s intent to make whole persons who have suffered unlawful employment discrimination. White, 364 F.3d at 801-03. The facts in the present case are, however, readily distinguishable from those in White, such that the Court declines to adopt the ultimate conclusion in White that the plaintiff suffered an adverse e